IN THE COUNTY COURT OF VICTORIA
AT Melbourne
CRIMINAL DIVISION	Revised
Not Restricted
Suitable for Publication	

Case No. CR-18-01886

DIRECTOR OF PUBLIC PROSECUTIONS		
		
v		
		
TREVOR CURRAM		

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JUDGE:	O'CONNELL 	
WHERE HELD:	Melbourne	
DATE OF HEARING:	18 May 2020	
DATE OF SENTENCE:	23 June 2020	
CASE MAY BE CITED AS:	DPP v Curram	
MEDIUM NEUTRAL CITATION:	[2020] VCC 873		

REASONS FOR SENTENCE
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Subject:	CRIMINAL LAW 
Catchwords: 	Dangerous driving causing death; Dangerous driving causing serious injury; Mini-bus driver; Collision caused by driver fatigue; Precautions taken to break journey but ineffective; Four minutes of dangerous driving whilst affected by fatigue; Driver crossed ‘rumble’ strips on six occasions; Not a rare or exceptional case of momentary inattention; Offender suffers significant chronic health conditions; COVID-19 sentencing considerations; General deterrence.
Legislation Cited:	Sentencing Act 1991.
Cases Cited:	Stephens v The Queen [2016] VSCA 121; Bell v The Queen [2018] VSCA 281; DPP v Roote [2018] VCC (Judge Taft), DPP v Nicholson [2020] VCC (Judge M. Bourke) and DPP v Calf [2020] VCC (Judge Wilmoth); DPP v Oates [2007] VSCA 59; Board v The Queen [2013] VSCA 190; Borg v DPP [2016] VSCA 53.
Sentence:	Aggregate sentence of 4 months’ imprisonment combined with 18 month CCO with conditions to complete 250 hours of unpaid work and mental health treatment. 
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APPEARANCES:
	Counsel	Solicitors	
For the DPP	Ms A. Moran
	Office of Public Prosecutions 	
			
For the Accused	Mr D. Gibson 	Victoria Legal Aid	

HIS HONOUR:

Introduction
1	Trevor Kenneth Curram, you have pleaded guilty to one charge that at Boho on 26 December 2015, you drove a motor vehicle in a manner that was dangerous to the public having regard to all the circumstances of the case and in so doing caused the death of Kevin John O’Donohue.
2	You have also pleaded guilty to a second charge that on the same occasion your dangerous driving caused serious injury to Peter Steven Ball.
3	Mr O’Donohue died from a neck injury sustained when a minibus driven by you, in which he was a passenger, collided with a signpost on one side of the Hume Highway and then a tree on the other side. 
4	Mr Ball was also a passenger in the minibus at the time of the collision and spent several weeks at the Alfred Hospital with fractures to his femur and fibula, two fractures to his skull, a bruised ankle and lacerations or abrasions to his forehead.
5	Expert opinion concluded that the most likely cause of this collision was that you fell asleep whilst you were driving. Investigators were able to establish that over a period of four minutes or so before the collision, you were fatigued or falling asleep and that the manner of your driving endangered all of those in the minibus, and other road users.
6	Ms Moran, who appeared on behalf of the Victorian Director of Public Prosecutions, tendered and read to the Court a prosecution plea opening which detailed the circumstances of this collision and your offending. Mr Gibson, who appeared on your behalf, accepted that the opening accurately described those circumstances and could properly form the factual basis for sentence. What follows is largely based on that opening.
Background
7	You were 59 years of age at the time you committed these offences, having been born on 3 November 1956. You are now 62. 
8	In December 2015, you were working as a disability support worker. In the course of your work, you had some experience of driving the type of minibus that was used on this occasion. 
9	The deceased Kevin O’Donohue, who was 64 the time of the collision, suffered from Fragile X syndrome, which was a genetic condition that caused intellectual disability and affected him both cognitively and physically. At the time of his death, Mr O’Donohue lived in a community residential unit in Warrnambool where he had lived for approximately 25 years.
10	Peter Ball was 56 at the time of the incident. He suffered from cerebral palsy, was wheelchair bound and also suffered from an intellectual disability.
11	On 21 December 2015, a company known as Leisure Options Pty Ltd (‘Leisure Options’) took a group of clients to the Borambola Sport and Recreation Centre near Wagga Wagga New South Wales, for a holiday. Leisure Options is a holiday service provider for people with mental and physical disabilities.
12	There were 17 staff members and 40 clients including Mr O’Donohue and Mr Ball. The group travelled to Wagga Wagga in a large coach bus and a smaller minibus. The minibus was a 2010 Toyota Hi-Ace 12-seater van, modified for transporting people in wheelchairs. It was registered to, and owned by, Leisure Options.
26 December 2015
13	On 26 December 2015, Grant Smyth, a staff member from Leisure Options, drove back to Wagga Wagga in a coach bus to collect the group from Borambola and take them home. Most of the staff and clients travelled on the coach with Mr Smyth, however four clients and two staff members travelled in the minibus. You were one of those staff members. Jessie Skillicorn was the other staff member. Ms Skillicorn, like you, had experience driving that type of minibus. You intended to share the driving between you during the return trip.
14	You and Ms Skillicorn sat in the front with the four passengers behind you. Two of those passengers, Peter Ball and John Porter, were in wheelchairs in the centre aisle of the minibus, with Mr Ball in front. Kevin O’Donohue and his brother, Neville, were seated behind Mr Ball and to the side. There was a hydraulic wheelchair lift at the back of the bus.
15	The coach and minibus left Wagga Wagga at around 9:30am on 26 December 2015. At the time you left, it was raining heavily and because Ms Skillicorn did not want to drive in the rain, you drove first. After about 40 minutes or so you stopped and she took over. You had another break at Lavington, which is 125 kilometres from Wagga Wagga, after which you resumed driving. Both the coach and your minibus then stopped at Wangaratta for lunch, leaving to resume the journey at about 1pm heading south along the Hume Freeway, past Benalla.
16	In the four minutes leading up to the collision, a camera facing rearwards, mounted above the passenger side entry door of the coach, which was travelling immediately ahead of you, captured footage showing your minibus crossing the white rumble strip on the left-hand side of the left lane on six occasions. 
17	Other road users observed your minibus swerving in its lane and then over to the left shoulder. One driver, Ben Webster, had intended to overtake the buses, but after he saw your minibus swerve into his lane and then over to the left shoulder, he decided it was unsafe and pulled behind you in the left lane. Over the space of a few minutes, your minibus continued to move from side to side within its lane, sometimes crossing over into the right lane or the road shoulder on the left. Your driving was such a concern that Mr Webster’s wife began filming it, capturing the collision that followed.
18	Another vehicle, a Toyota Hi Lux, overtook you in the right lane. As it did so, the minibus you were driving moved into its lane causing the Hi Lux to move further to the right and accelerate, apparently to get out of the way. Your minibus then moved back to the left and crossed onto the left road shoulder.
The collision
19	About 60 kilometres from Wangaratta, at 1:36pm, just prior to the collision, the minibus you were driving was travelling directly behind the coach in the left of the two southbound lanes on a straight stretch of road. It then moved across the right lane and collided with a signpost on the grass verge next to a U-turn area, it then turned sharply to the left, back across the road, where it flipped and hit a large tree on the left side of the road. The minibus came to rest on the passenger side, trapping its occupants.
20	The impact caused the death of Mr O’Donohue who died at the scene. A pathologist concluded that Mr O’Donohue died from a ‘neck injury sustained in a motor vehicle collision’ comprising a fracture of the C2 vertebra (neck spine) with extradural haemorrhage around the spinal cord.
21	Mr Ball was transported to the Alfred Hospital with serious injuries. Dr Jo Ann Parkin from the Victorian Institute of Forensic Medicine later described his significant injuries as follows:
Fracture of the proximal to mid left femoral shaft with displacement and comminuted fracture of the distal femur with displacement [X-ray 26/12/15] [Two areas of fractures of the left thigh bone with the bone fragments out of line].
A fracture of the proximal shaft of the left fibula (bone on the outer aspect of the lower leg) [Seen on the lateral X-ray view only taken 29th December 2015].
Bilateral occipital condylar fractures. CT Brain & C-spine 26/12/15: minimally displaced, comminuted right occipital condyle fracture, minimally displaced fracture of the medial part of the left occipital condyle. (A fracture into more than two pieces of the right sided protrusion of the occipital bone of the skull that forms a joint with the first cervical vertebra and a single fracture in the middle of the left occipital protrusion).
22	On 27 December 2015, Mr Ball underwent surgery to insert a rod and screws to the left femur to assist in the healing of the fractures. Post-operative X-rays showed satisfactory alignment and no complications were noted. A Minerva brace was placed for the occipital condyle fractures for three weeks. The left fibula fracture was treated conservatively with no weight-bearing for six weeks.
23	Ms Skillicorn, Mr Porter and Neville O’Donohue were taken to local hospitals for treatment, whilst you also received serious injuries to your hands and arms which necessitated you being airlifted to the Royal Melbourne Hospital.
Investigation
24	The collision occurred on the Hume Freeway between Baddaginnie and Violet town. The road, which runs roughly north-south, is a dual carriageway in each direction bordered by white audible tactile strips known as rumble strips. Each lane is approximately 3.5 metres wide. The north and southbound lanes are separated by a large grassed and tree-lined area, some parts of which are bounded by guy-wire fences, but not where the collision occurred. The applicable speed limit was 110 kilometres per hour.
25	Investigators noted tyre marks on the gravel, dirt and grassed area leading up to the U-turn area on the right hand side of the road. An ‘Emergency Vehicle’ crossing sign about 3.5 metres from the tactile strips had been ripped from the ground. The tyre marks continued over the U-turn area and were still visible on the other side of the bitumen. Beyond the U-turn area, yaw marks were visible on the bitumen showing the path of the minibus to its final destination against the tree.
26	Expert examination of the minibus did not find any mechanical faults that would have caused or contributed to the collision.
27	Although it had been raining heavily when you started out from Wagga Wagga, the rain had stopped by the time you left Wangaratta. At the time of the collision there was no rain, the sun was out and the road was dry. 
28	One feature of the conditions prevalent on that day were the noticeably strong winds. Attending investigators noted the windy conditions, as did the helicopter pilot of the air ambulance which landed in a nearby paddock at 2:48pm. The Bureau of Meteorology recorded the wind was blowing in a southerly direction at around 35 kilometres per hour, about an hour and half after the collision. A detective from the Major Collision Investigation Unit stated that the wind appeared to be blowing east to west, although there was a noticeable variation in gusts at times.
29	You were first interviewed about this matter at the Royal Melbourne Hospital on 26 December 2015. You told police that you had moved the minibus into the right lane when a ‘fairly decent gust of breeze’ came along and buffeted the bus, throwing it off the side of the road. You said you tried to correct it, but not in a violent manner because you were conscious that you would have flipped the minibus, but then the wind hit the side of the bus and it did turnover. You estimated that you were travelling at 108 to 110 kilometres per hour at the time. You said the wind was coming from all different directions throughout the day and that it was gusty.
30	You participated in a further record of interview in respect of this matter at Bendigo police station on 12 February 2016. You gave a consistent explanation for the collision. You further explained that there had been a couple of gusts of wind earlier in the day, however the last one took you by surprise and pushed the minibus onto the shoulder of the road. You described trying to ease up on the accelerator rather than slamming on the brakes. When you were asked why the footage from the coach camera showed you crossing the rumble strips on the left-hand side of the left lane several times in the minutes leading up to the collision, you said you could not recall but could only put it down to the wind. You also explained that you went to bed at approximately midnight the night before the collision and woke at 6am. 
31	You stated that you remembered when you had stopped in Lavington for a break, Ms Skillicorn had remarked that you looked tired and that you reassured her you were alright to drive. You said you could not recall if you had fallen asleep immediately prior to collision, although you did not think you had. You also said that you were not so tired that you were nodding off.
32	It seems that you were not initially charged with these offences. Instead, a coronial inquest took place. Dr Shane Richardson, a mechanical engineer with expertise in vehicle collision reconstruction, undertook an analysis of the collision for the purposes of that inquest. As part of his examination, he was able to utilise the mobile phone footage, in addition to the footage from the coach.
33	Dr Richardson concluded that the most likely cause of the minibus leaving the road was the driver falling asleep. He formed the view that the trajectory of the minibus was not consistent with the effects of wind. That was so for three reasons:
1.	The fact that none of the other three vehicles whose movement could be gauged from the mobile footage (being the coach, the overtaking utility and the filming vehicle) appeared affected by wind, that is, they showed no untoward sideways movement either separately or in unison;
2.	The lack of other indicators of a heavy crosswind event (such as leaves blowing across the roadway, tree branches bending significantly, light debris flowing across the roadway); and
3.	The trajectory of the minibus as it left the road, being a constant drifting motion in a straight line with no steering input and no application of the brakes prior to the grass verge.
34	In discussion on the plea, Mr Gibson accepted that the explanation you gave to investigators that the collision was caused by the effects of a wind gust was not accurate. It was acknowledged that you were to be sentenced on the basis that in the four minutes or so leading up to the collision, you had been driving dangerously in that you were fatigued or falling asleep.
Victim impact
35	Although no victim impact statements have been provided, I should say that it is very much the experience of this court that the catastrophic and tragic consequences that flow to all those involved, whether they be witnesses, emergency workers, other passengers, family or friends of the deceased or the injured, are deeply traumatising. It is important that you understand that the trauma that is so widely felt from this kind of offending is an important consideration in the formulation of the sentence to be imposed. 
Timing of plea of guilty
36	It is now four and a half years since the collision. Despite that, you entered your plea of guilty in what I would describe as a timely manner. You were directly indicted to the County Court following the coronial inquest, and pleaded guilty shortly after a sentence indication hearing. There were no witnesses called for the purposes of cross-examination.
Personal history
37	Turning to your personal history. As I have indicated, you are now 62 years of age. You grew up in Bendigo where you attended Kangaroo Flat Primary School and Kangaroo Flat Technical School. Your father passed away after suffering a heart attack when he was just 47 years of age. Your mother, who is now 85, still lives in Kangaroo Flat. You have one sister who works in hospitality and lives in Yarrawonga with her two children.
38	From an early age, you were recognised as a talented footballer. When you were 20, you moved to Melbourne where you played a season in the reserves for the Carlton Football Club in 1977. Thereafter, you spent a number of years in Melbourne coaching and playing football. You also coached football in Sydney in the mid-1980’s and you have had long-term involvement with the Kangaroo Flat Football Club where you have served on the committee in various roles including vice-president.
39	You have a commendable record of service to the community, both through football and in your work over many years as a volunteer firefighter with the Kangaroo Flat Country Fire Authority (CFA).
40	Over the years, you have had a number of different jobs, often in the area of the retail of motor spare parts. You purchased your own ice cream business and operated this for a time in Brisbane in the late 1980’s, but you were unable to sustain the long hours required.
41	When you returned to Bendigo, you obtained work as a taxi driver which you did for 12 to 13 years. You stopped driving taxis in the wake of the serious deterioration in your health. In 2011, you were diagnosed with cardiac failure, cardiomyopathy, ischaemic heart disease and obstructive sleep apnoea. In 2012, you were diagnosed with a depressive illness which was linked to the development of those multiple chronic medical conditions in the previous year. I will come to the significance of your mental and physical health shortly.
42	You have been involved in a number of long-term relationships, and you have an adult son who was born on 15 March 1986 and has three children with his fiancée. Your son and his family have recently moved from Corowa to Bendigo, so you are now in a position to see them more regularly. Although you are presently single, you have a girlfriend with whom you have been involved since shortly before the collision and I am told that she is supportive of you.
43	As you recovered from health problems, you undertook a Certificate IV in Disability which qualified you to work as a disability carer. In that way, you came to be working for Leisure Options at the time of the accident.
44	As a result of the accident you were also seriously injured. You sustained a severe right hand/forearm degloving injury which required complex surgery involving flap reconstruction and tendon/nerve repair. You were in hospital for 20 days and had three further operations to your right wrist in 2016 and 2017. You have no feeling in the top of your hand, and you have been assessed as having a permanent impairment of 23% to your right hand. Your counsel pointed out that the injury serves as a daily reminder of this collision. 
45	On the plea hearing, you admitted one prior matter involving an offence of careless driving in 1985 resulting in a $300 fine. Although that offence is technically relevant, it occurred 30 years before the collision and in the context of a long history of driving taxis. I regard it as carrying no weight for the purposes of formulating sentence.
46	Mr Gibson relied upon a medical report from your treating general practitioner, Dr Avram Babovic of 8 May 2019. Dr Babovic concludes that report with the following comments:
Mr Currum's co-morbidities include obstructive sleep apnoea, peripheral vascular disease, type 2 diabetes mellitus and hypertension (high blood pressure) requiring regular use of multiple medications and ongoing general practitioner and specialist follow-up. Moreover, the ongoing management of diabetes requires regular self-monitoring and frequent review with treating practitioners to optimise treatment and avoid complications. Mr Curram's peripheral vascular disease was complicated by left calf pains which required a left femoral angioplasty in January 2018. Mr Curram takes ten different regular medications for his multiple chronic medical conditions.
Given the above details, specifically Mr Curram's history of several significant chronic medical conditions requiring ongoing general practitioner and specialist management, it is likely that imprisonment would be associated with marked difficulty in managing these conditions optimally. Mr Curram is likely to experience substantially more difficulty with imprisonment compared to a person who does not have these medical conditions.
47	In a follow-up report of 24 March 2020, your treating doctor states that your medical status has deteriorated, he states:
Notably, Mr Curram's diabetes is now poorly controlled (HbA1C 9.2) which is associated with an increased risk of complications and infections. Specifically, Mr Currum's diabetes and other chronic medical conditions (heart disease, cardiac failure, obstructive sleep apnoea and hypertension) are associated with a markedly increased risk of severe COVID-19 infection should he be exposed to this in the prison system. This includes a higher risk of hospitalisation, ICU admission and fatal illness.
48	It is also important to note that one of those chronic conditions is a severe form of chronic plaque psoriasis which is a chronic inflammatory skin disease requiring long-term management. A specialist report from Dr Belinda Welsh confirms that you receive injections every eight weeks to treat that condition. The medication modulates the immune system so that you remain relatively immune suppressed. Dr Welsh states that this should be appreciated if you show any signs of infection and that this should be taken seriously and treated early.
49	Because of the deterioration in your mental health condition in the wake of the collision and the ongoing legal proceedings, you have been treated by Ms Neena Misra, clinical psychologist, with psychotherapy to help relieve your symptoms of depression and post-traumatic stress.
50	You were also assessed for the purposes of this case by a consultant psychologist, Ms Gina Cidoni, on 26 April 2019. Ms Cidoni administered a number of psychological tests, and found:
He is low in mood, he experiences tearfulness, he worries frequently and he is functioning at a low level of efficiency as a result of his depressed mood. He is not suicidal and he indicated no previous ideation. Anxiety was prominent and indicated rumination, nervousness, excessive worry, sleep difficulties and indecision. He feels a great deal of tension and stress and he finds life a strain with restlessness and this impacts upon his attention and concentration. He has panic symptoms. Generalised fearfulness was also indicated.
A highly endorsed PK scale is indicative of post-traumatic stress where he has witnessed and experienced an event that threatened his/others life/wellbeing where he was extremely fearful. He has thoughts, dreams, and memories frequenting his mind, that cause him to become upset and feel intense distress. He tries to block out these thoughts and avoids situations that remind him of distressing experiences. He feels distant and cut off from others, he still suffers physiological symptoms and he has an exaggerated startle response.
51	Ms Cidoni offered the view that you impressed as a genuine individual who continues to be burdened by the weight of this tragedy. She also agreed with your treating general practitioner that your mental health would deteriorate considerably in custody and that you would experience that environment more harshly than someone not burdened by your mental and physical health conditions.
Defence submissions
52	Mr Gibson submitted that this was a very unusual case. He submitted that you took  all reasonable steps by dividing the journey into short legs which enabled you to take breaks and change drivers. In essence, you had done as is recommended through driver education campaigns. After lunch you had set out from Wangaratta, your co-driver had gone to sleep and you had only been driving for 40 minutes when the effects of fatigue became apparent. That was only four minutes or so before the fatal collision. 
53	This was not a case involving drugs or alcohol, or where you had deliberately disregarded road signs or broken road rules. Whilst you had given an account to investigators which was inaccurate and which caused delay, you had done so, it was suggested, because you panicked.
54	In all those circumstances, it was submitted that your moral culpability should be assessed as being low and that the offending should be seen as falling at the lower end of the range of seriousness for this offence. 
55	As to matters personal, your counsel relied on your clear remorse, your plea of guilty, your precarious physical and mental health, the likelihood that imprisonment would be more burdensome for you and aggravate your chronic health conditions, the sentencing considerations relevant to COVID-19 particularly given your vulnerability, the delay in having these proceedings finalised, your previous good character and your contributions to the community.
56	It was submitted that a Community Correction Order (‘CCO’) was the appropriate disposition.
Prosecution submissions
57	In response, Ms Moran submitted that those cases which fell to the lower end of the range of seriousness for this type of offending typically involved momentary inattention. This was not such a case. It was not accepted that every possible precaution had been taken. You had only slept 6 hours. Ms Skillicorn had remarked that you looked tired and that should have alerted you to the problem of fatigue. 
58	As a professional driver, you owed a duty of care to your passengers, who were vulnerable, to ensure their safety and to ensure you were not too tired to drive. You had not acted when many of the cues of fatigue must have become apparent to you, not least of which was the sound of crossing the rumble strips on six occasions in that four minute period leading up to the collision.
59	A man lost his life and another was seriously injured as a result of this collision which was caused by your dangerous driving. The sentence imposed must, it was submitted, recognise those grave consequences. The importance of general deterrence in cases of this kind cannot be overstated. 
60	It was accepted you were a person with difficult health conditions and thus vulnerable to COVID-19, but it was argued the defence submissions overstated the significance of those considerations in the sentencing calculus. They carried some, albeit limited, weight.
61	It was also accepted that you were remorseful and that prison was likely to be more burdensome, although it was contended you would be properly looked after in custody.
62	It was submitted that a term of imprisonment should be imposed, although it was conceded that it would be open to impose imprisonment in combination with a CCO.
Legal principles relevant to dangerous driving causing death and serious injury
63	In analysing these submissions, I need to be mindful of the principles which have been developed over recent years relevant to the offences of dangerous driving causing death and dangerous driving causing serious injury.
64	In Stephens v The Queen, the Court of Appeal comprising Redlich, Santamaria and Beach JJA stated at [20]:
A Court’s assessment of the dangerousness of the driving will be informed by the extent of the risk which the driving created, as well as by the extent of potential harm should the risk materialise.
65	Dangerous driving causing death or serious injury, it was said, encompasses a very wide range of conduct, but it is an offence which will ordinarily attract a significant term of imprisonment, although that principle may be qualified when the offender’s level of moral culpability is low. An assessment of the degree to which particular consequences of the offender’s acts were, or should have been, foreseen will help determine the level of moral culpability.
66	A survey of some recent cases demonstrates that dangerous driving arising from momentary inattention will often result in an assessment of low moral culpability and may, in unusual circumstances, lead to a non-custodial disposition. Examples include: Bell v The Queen, DPP v Roote, DPP v Nicholson and DPP v Calf.
67	Three further authorities that I have found particularly instructive as to an assessment of moral culpability were DPP v Oates, Board v The Queen and Borg v DPP. In each of those cases, the operative causal feature of the dangerous driving was fatigue. 
68	In Oates, the offender had recognised he was tired and pulled over for an hour and slept before continuing his journey. The sentencing judge accepted that he thought, having rested, he was safe to drive. The offender, driving a 12-tonne truck, clipped the right side of a van parked in the emergency lane of the Hume Freeway, killing one person and seriously injuring three others. That was a case of momentary inattention or misjudgement, where the offender’s moral culpability was assessed as being low, resulting in the imposition of a CCO which was not disturbed on a Crown appeal.
69	In Board, it was contended that the applicant had been sentenced on the erroneous basis that he had fallen asleep. He had not taken a bend in the road, and as a result moved into the right lane and collided head on with an oncoming vehicle. He had told his wife shortly before the accident that he was tired and would look for somewhere to pull over. 
70	It was held that it was not material whether the driver was sleepy or actually asleep – what mattered was that the driver was not in control of the vehicle. The case was said to illustrate how dangerous a vehicle becomes when, because of tiredness, the driver ceases to be in control of the vehicle. An uncontrolled vehicle is likely to cause death or serious injury, such that the risk actually created is great, and the potential harm is likewise great. 
71	An assessment of culpability in such cases will thus focus on how the loss of control came about, whether the driver had forewarning of the danger associated with the loss of control and whether the driver took any steps to avert the risk.
72	The moral culpability of the driver in Board was assessed as high because he was fully aware of his own drowsiness and the risk that created. He understood that he needed to pull over and stop driving, but failed to do so. He was observed over a three kilometre stretch to be driving erratically. That was not a case of momentary inattention. The total effective sentence of four years with a non-parole period of 18 months was upheld. 
73	The respondent in Borg was sentenced on the basis that in the few moments leading up to the collision, he ‘zoned out’ or had become sufficiently sleepy as to require him to pull over. He did not do so. His culpability arose from his failure to do so in those few moments before the collision. The respondent also had cognitive deficits which had some nexus with his decision to continue to drive. It was a case very much out of the ordinary. A CCO of five years’ duration was held to be manifestly inadequate, but the residual discretion not to increase sentence was exercised.
Analysis
74	In considering the arguments advanced by the parties and applying the principles derived from the authorities set out above, I am satisfied that this is not one of those rare or unusual cases of mere momentary inattention. 
75	You lost control of the minibus because you were too tired to drive. It was not due to the wind.
76	Your driving in the four minutes leading up to the collision compels that conclusion. You were seen, and indeed filmed, swerving out of your lane to the right, swaying within your lane, and crossing the rumble strips on the left hand side on six occasions over that period of time. 
77	As a person working professionally as a driver, you needed to be astute to any potential danger to your passengers. You must have been aware that fatigue was creating a risk each time you crossed those rumble strips. The purpose of those strips is to alert people in your position that corrective action needs to be taken to ensure safety. By the third, fourth, fifth or sixth time you crossed those strips, you could not fail but to appreciate that fatigue was affecting your driving, and placing you and your passengers in danger.
78	You could have, and should have, taken steps to avert the risk by pulling over and asking your sleeping co-worker to drive. Your failure to do so is the gravamen of this offence.
79	If the assessment of your moral culpability or blameworthiness were to stop there, then it would be difficult to conclude that it was anything other than high, in a manner that would not be too dissimilar to the offender in Board. However, I do not think such a narrow view of the circumstances is warranted. It seems to me that the wider context of this journey should also inform the assessment of your moral culpability.
80	As Mr Gibson emphasised, you had broken this journey with appropriate breaks and had changed drivers. In many respects, you had done as is expected of responsible drivers. The precautions you took proved to be inadequate and, critically, you failed to stop when you should have realised they were inadequate. However, I think it is important to take into account that earlier in your journey, you did take some reasonable precautions. That broader view of your conduct in my view qualifies what would otherwise be your high moral culpability.
81	None of what I have just described should obscure the tragedy of this event. Mr O’Donohue lost his life and Mr Ball sustained serious injuries, and with greater care that death, and those serious injuries, could have been prevented. 
82	I am well satisfied that you continue to feel the consequences of this collision acutely. You are constantly distressed by it and I have no doubt are genuinely sorry for having caused it.
83	The matters personal to you tell strongly in your favour. You are a person of otherwise excellent character that has contributed to the community through your service to football and as a volunteer firefighter. Your plea of guilty merits a substantial reduction in sentence. It has saved the community a great deal in resources, it facilitates the course of justice and marks your acceptance of responsibility for this tragedy.
84	Whilst it may fairly be said you have caused a good part of the delay in the resolution of this case because you provided an explanation for the cause of the collision which was not borne out by the evidence, I am satisfied that the delay has nonetheless been punitive. Moreover, you have not re-offended during that subsequent four and a half year period.
85	Your health, both physical and mental, is also of great concern. You have multiple debilitating chronic illnesses which are managed with an extensive medication regime and I particularly note that your diabetes is poorly controlled. I accept your general practitioner’s opinion, with which the assessing psychologist agreed, that you will likely experience imprisonment with much more difficulty than a healthy inmate. 
86	Overlaying that concern is your susceptibility to COVID-19 and the understandable anxiety that is likely to produce in prison. Although COVID-19 is not a ‘get out of jail free card’ it is, in your case, a matter of considerable weight.
87	These matters, taken in combination, significantly mitigate your sentence.
88	That said, as I have indicated, this is not one of those rare cases involving momentary inattention such as to justify a non-custodial disposition. Your dangerous driving was sustained for a period of four minutes or so and ended in the destruction of one life and the devastation of another. 
89	Such conduct must be denounced and the sentence imposed must convey to all drivers that if they show signs of fatigue which may potentially affect their driving, they need to take action so as to prevent tragedies of this kind occurring. The need to deter others compels the imposition of a sentence requiring you to serve some time in custody albeit that term, in your case, will be tempered by mercy.
Sentence
90	On Charges 1 and 2, you will be convicted and sentenced to an aggregate term of imprisonment of 4 months.
91	In combination with that order, you will be required to complete a CCO for a period of 18 months. Conditions will include 250 hours of unpaid community work and treatment and assessment for mental health. 
92	Pursuant to s 89 of the Sentencing Act 1991 (‘the Act’), I will cancel any licence or permit you hold and disqualify you from obtaining a driver’s licence for a period of 18 months.
93	I will further make a declaration under s 6AAA of the Act, that but for your plea of guilty, you would have been sentenced to a term of imprisonment of 3 years with a non-parole period of 18 months.