Sentencing remarks for Eugene Norman McGee
Settled by The Chief Judge 28.4.2005

IN THE DISTRICT COURT

CRIMINAL JURISDICTION

ADELAIDE

THURSDAY, 28 APRIL 2005 AT 2.33 P.M.

BEFORE HIS HONOUR THE CHIEF JUDGE

NO.825/2004

R v EUGENE NORMAN MCGEE

HIS HONOUR IN SENTENCING SAID:

Eugene Norman McGee, you have been found guilty by a jury of driving without due care. The penalty is a fine of not more than $1,250 and, if the court considers it appropriate, disqualification of licence.

Having regard to the principles of law involved, the evidence before the court and the verdict, in acquitting you of driving in a manner dangerous but driving without due care, the jury must have been satisfied that your failure was inadvertence or a temporary lapse in concentration as a result of which you did not see Mr Humphrey on his bicycle. In other words, the jury could not have been satisfied that there was a gross failure to observe him over a considerable distance or for a considerable period .

It is not possible to say whether the jury preferred the evidence of Mr Felice or your evidence which had some support from Mr Voroniansky as to where you were immediately or shortly before the impact, but it is unnecessary to resolve that. By their verdict, the jury must have been satisfied that, whether it was while you were relatively close to Mr Felice’s station wagon or some distance back, there was some time during which you ought to have seen Mr Humphrey but you failed to do so.

The consequences of that temporary lapse have been horrendous and those consequences are relevant. But, as has been emphasised by the Court of Criminal Appeal, care must be taken that you are not punished for the more serious offence of which you were acquitted.1.

On the face of it, simple inadvertence would not be consistent with a finding that a person’s capacity to drive safely was appreciably impaired by alcohol. It follows that it is unlikely that the jury were satisfied beyond reasonable doubt that alcohol played any part in this incident. I need not repeat what was said in closing addresses and summing up, but the evidence does not support such a finding beyond reasonable doubt and, therefore, there is no basis for including it as an ingredient of the offence.

The consequences of this crash are tragic. The victim impact statements read this morning, and those from the two children that I have read, demonstrate the depth of grief, loss and sorrow being experienced by Ms Gilchrist-Humphrey, their two children, the wider family and the community itself.

You are 50 and, although you have a prior motor vehicle offence, and have paid expiation fees for exceeding the speed limit on six occasions between 1997 and 2003, there is no history of offending that comes anywhere near the present circumstances. In November 1995, you drove an unregistered and uninsured vehicle for which you were fined $400 and had your driver’s licence disqualified for one month.

Some of the speeding breaches have been in the metropolitan area and some the country. In round figures, except for one which does not show a specific reading, they are in the range of 10 to 14 km/h above the speed limit, with one in a rural area at 18 above the limit. The unspecified one was also in a rural area and was a breach shown on the expiation notice as in the range of 15 to 29 above the limit.

You are married with one daughter. I need not cover the details of your history as that has been given in evidence. It is enough to say that you graduated as a police officer in 1974 and, after a period of other duties, you were attached to the Police Prosecution Unit. As an adult entrant, you studied law at the Adelaide Law School and were admitted to practice in 1985. You have specialised in criminal law, including road traffic matters.

I have read the testimonials that have been supplied to the court. It is unnecessary to refer to them in detail. It is clear from them that your reputation as a lawyer is that you are skilled and reliable, and that you are regarded as a practitioner of integrity and high ethics. On a more general level, these references make it clear that you are generous with your time and your help to others, both to individuals and to community groups.

Although driving without due care is by legal definition a breach which is within the ordinary risks of the road, in fixing penalty it is, as I have said, appropriate to have regard to the consequences. The law guarantees a discount for an early plea, but I am not satisfied on the information given to me after the hearing this morning that there was an unconditional early offer of a plea and, therefore, there will be no discount.

For this offence you will be fined $800 and you will be disqualified from holding or obtaining a driver’s licence for six months.

You have pleaded guilty to two offences under s.43 of the Road Traffic Act; namely, that, after being involved in an accident in which a person has been killed, (1) you did not stop your motor vehicle immediately and (2) you failed to give all possible assistance to that person.

The purpose of each of these requirements is obvious. The obligation to stop is so that the driver may be identified and the circumstances of the collision investigated properly, so that, among other things, a determination may be made as to whether the driver should be charged with any offences. And, these days, everyone knows that after any accident a driver can expect to be tested for blood alcohol content as soon as possible.

The reason for being required to render assistance is equally obvious. That assistance may be by doing something to help the person directly or by obtaining expert help; for example, using a mobile phone to get help. That could save the life of an injured person. It could ease their suffering. It could mean that serious injuries are treated early enough to prevent the results becoming more serious.

To fail in either of these duties is regarded by the community as a serious lapse in the expected level of responsibility and care towards others, and for a breach, the statute provides, in each case, for a fine of up to $5,000 or imprisonment for up to one year, and a compulsory licence disqualification for not less than one year.

The details of what happened after your vehicle struck Mr Humphrey have been canvassed in great detail in evidence during the trial, and it is unnecessary to repeat that. It can be summarised briefly in this way.

The impact was severe; that is obvious from the damage to your Pajero and what happened to Mr Humphrey between the moment of impact and when he landed in the grass by the side of the road. It is unnecessary to go into details of the autopsy report but it is clear from that, and from the evidence of those who stopped at the scene within moments of the crash, that death would have been virtually instantaneous.

You continued on until you reached Roseworthy Road, where you turned left off the main road. This was all shortly after 5 p.m. You were in or with that car until some time between about 7 p.m. and 7.50 p.m. when it was found in the driveway of your mother’s home at Kapunda. By then you were in a car with your brother Craig being driven towards Adelaide. The record of calls made by you and to you from your mobile phone indicate not only the calls themselves, but your general movements from the time of the accident until about 9 p.m. when contact was made on your behalf with police. It is unnecessary to repeat that. It is all in the evidence. Arrangements were made for you to present yourself to police and you were arrested at about 11.30 p.m.

There are rules that apply to the court when the penalty for an offence can be either a fine or a sentence of imprisonment. The effect of s.11 of the Criminal Law (Sentencing) Act and court decisions about it over many years is that the court is required to eliminate all other options before considering imprisonment. In other words, it is the last option.2.

Both of these offences must be considered in light of the evidence given by Professor MacFarlane, the psychiatrist who has been treating you. Once again it is unnecessary to repeat the details of his lengthy evidence and cross-examination during the trial.

The position can be summarised by saying that it is his opinion that, as a result of your exposure to horrifying incidents involving death and mutilation during your time as a police officer, and more recently during your involvement as a solicitor in the Snowtown trial, it is a reasonable probability that, at the time of this crash and for some time before, you were suffering from a post-traumatic stress syndrome or disorder and that, because of that, your involvement in the obviously catastrophic impact with Mr Humphrey triggered a dissociative state which he described as an emotional reaction that interferes with the capacity to behave in an ordinary or appropriate way.

It is his opinion that the effect of such a state would be consistent with being unable to bring yourself to stop and face what you had done. It is also his opinion that partial amnesia between the time of the accident and later that night would also be consistent with such a condition.

In giving evidence of his diagnosis, Professor MacFarlane had the personal pre-accident history you gave him as well as the matters to which he was referred in evidence-in-chief and cross-examination. In considering the weight of his opinion for present purposes, the court is entitled to take into account that he had information from a patient that may not have been fully canvassed in evidence from that patient. In this case, the accumulated effect of that information and his expertise provides a cogent basis for his opinion.

Obviously, it would be less complicated to diagnose a condition such as post-traumatic stress syndrome if a psychiatrist saw that person at the relevant time, but he described the method by which, when confronted with a patient after a trauma, here the crash itself, he goes about assessing that person’s psychiatric condition prior to such an event. There is no evidence that suggests that this method that he described should be discredited.

To the extent that information he obtained from you depended for its value on him being able to accept what you told him as the truth, he described at some length in cross-examination the clinical techniques he has developed over the years to detect fabrication, and he was satisfied that this was not an issue. No basis has been shown on which that conclusion he reached should be disregarded.

I refer briefly to the submission put by the Crown this morning about the actions you took and thoughts you had in the period shortly after the impact. He agreed that this showed a degree of mental functioning, but he said that this does not determine whether there was dissociation.

Professor MacFarlane was unable to say how long this dissociation lasted, but, on a fair reading of his evidence, it would be likely to have been some time between when you started your journey with your brother and when you were arrested at about 11.30 p.m. This cannot excuse what you did, but it provides some explanation of conduct that appears to be completely out of character, and to that extent it must be taken into account by way of mitigation.

It would be a factor of aggravation if Mr Humphrey had been deprived of the chance of help that may have saved his life or eased suffering because of your failure to render assistance but, for the reasons that I have given already, such a finding is not open.

Thus, having regard to the principles of law I have mentioned, the whole of the information before the court, and the range of culpability covered by each of these offences, it cannot be said that the court is required to put aside the penalty of a fine in favour of a sentence of imprisonment.

It was one course of conduct that gave rise to both offences and it is, therefore, appropriate to impose a single penalty under s.18A of the Criminal Law (Sentencing) Act to cover both offences.

You pleaded guilty to both offences at the first reasonable opportunity and for that, as I have said, the law requires that you be given a substantial discount. To cover both offences, were it not for your early plea, I would have imposed a fine of $3,000 but, after taking that into account, I impose a fine of $2,300. In respect of each offence separately you will be disqualified from holding or obtaining a driver’s licence for a period of 12 months.

Each of the three offences, driving without due care, failing to stop and failing to render assistance, was the product of the one course of conduct and, applying the relevant law, the licence disqualifications will be concurrent.3. They take effect at midnight tonight.

ADJOURNED 2.52 P.M.

1.McCormack v The Queen: Judgment No 2883 – 6 June 1991

2.Meeuwsen v Police [2003] SASC 306

3.Fitzgerald v Police (2000) 209 LSJS 120

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