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AustraliaDriver issuesLegal issuesNewsTrucking

Brain-damage causing trucker narrowly escapes more severe criminal sentence

A truck driver who was convicted and sentenced for dangerously driving his truck in a way that caused grievous bodily harm and severe brain damage to a young woman has escaped a much more severe sentence owing to bureaucratic failings.

Drug-driving abuse

Truck driver Marc Antony Palmer (34 years old at the time of his offence), who was found to have amphetamine and methylamphetamine in his blood, drove a tri-axle trailer-towing Kenworth T-408 in a reckless and dangerous manner on September 23, 2016.

He was travelling on cruise control at 100 kilometres an hour (62 mph) when he failed to notice clearly visible roadworks up ahead. He also failed to notice electronic and roadside signage warning of the roadworks and instructions to slow to 80 km/h (50 mph).

There was a stationary line of cars up ahead waiting for a “go” signal.

Palmer later told police that he had “zoned out” and that when he “snapped back into it” he “jumped” on the brakes.

But it was far too late.

An eyewitness report seeing the truck and trailer “going flat sideways down the highway across both lanes” in a cloud of smoke from tyres sliding across the road surface.

The prime mover smashed into the last car in the queue.

Severe brain damage

Sari Hyytinen, who was driving the car, was knocked out. She was airlifted to hospital with bleeding between the membranes of the brain, high intracranial pressure and brain swelling. “This was a severe traumatic brain injury,” the Supreme Court of Queensland said. She suffered cuts, a collapsed left lung and a broken nose. Parts of her skull were removed in immediate life-saving surgery. She was put into intensive care for 12 days and needed further surgeries.

Immediately after the crash, she suffered post-traumatic amnesia for 48 days. She was in rehabilitation for two and a half months and then continued rehabilitation for a further three weeks. She now has post-traumatic amnesia and has post-traumatic stress disorder.

Hyytinen was a masters degree-level student. She is a student no longer. 

Her memory has been adversely affected. She cannot concentrate well enough to read. She has lost muscle strength and dexterity and can no longer jog or dance as she did formerly. Her business earnings have reduced.

“There is no doubt that the injuries she suffered in the crash have impaired Ms. Hyytinen’s life considerably and some of this impairment will never disappear,” the Supreme Court said.

The truck driver was uninjured.

Appeal against “manifestly inadequate sentence”

On October 2018, Palmer was convicted and sentenced to two years in jail, but that was a suspended sentence for three years. A “suspended” sentence is a jail sentence that is not put into effect unless a further crime is committed. They may also have other conditions.

The Attorney-General of the Australian state of Queensland immediately launched an appeal on the grounds that the sentence was “manifestly inadequate.”

An appeal against sentence can only be upheld if the sentencing judge makes an identifiable error. The Supreme Court has the power to substitute a sentence it considers proper if the court finds that the original sentence was inadequate.

Several errors in reasons for the sentence

The Supreme Court ruled that the original sentencing judge had made several errors. For instance, while it was a fact that Palmer had drugs in his system, the toxicologists assigned to the case concluded that, for various reasons, it was not possible to say what effect they were having at the time of the accident.

The sentencing judge made a mistake in concluding from the toxicologists’ evidence that Palmer was not adversely affected by the drugs. But the Supreme Court pointed out that while there was no evidence to say that the drugs had affected Palmer, equally, there was no evidence to say that the drugs had not affected Palmer.

It also noted that the “unchallenged facts” were that Palmer was a habitual user of drugs capable of causing distraction, fatigue and sleepiness in a driver.

“The substance of the case was that [Palmer] was a professional driver who had been entrusted with the safe operation of a vehicle which, by reason of its size and mass, was potentially much more dangerous than ordinary cars… [Palmer] was prepared to drive this potentially dangerous vehicle with a concentration of drugs in his system described as “moderate” when the quantity was measured two and a half hours after the offence. The respondent’s mental and physical state at the time is unknown but only because the respondent declined to reveal what it was,” the Supreme Court said.

Presence of drugs was evidence of “reckless disregard”

It then ruled that the presence of drugs in the system of a professional driver is “utterly inconsistent with the duties accepted by such a driver when taking the wheel” and that a “willingness to drive while addicted to methamphetamine was evidence of his reckless disregard for risk to others.”

The sentencing judge also erroneously concluded that Palmer was unaware of what he was doing with his driving because of his familiarity with the road. But the Supreme Court said it was “not open, on the evidence,” to make that conclusion.

The sentencing judge made a further error in saying that Palmer had been “engulfed by a trap… [for which] he was not ready because of [a] lack of proper attention.” Some comments were also made by the sentencing judge about the amount of signage on the road and how little time for Palmer had to react once he was in an “inevitable predicament” for which he had not been trained. 

“Simply failed to see things he should have seen…”

The Supreme Court sharply dismissed those comments.

“There was no basis upon which it could have been concluded that [Palmer] had been trapped by circumstances. He had simply failed to see things that he should have seen and that had been seen by the other drivers who had stopped. Two signs had been erected and… there was no evidence to suggest that the signs were inadequate to warn the respondent in good time of the roadworks that lay ahead of him. In any event, the positioning or quantity of signage was irrelevant because the respondent saw none of it.” 

It added that whether or not Palmer was trained in emergency stopping was irrelevant.

“The essence of the respondent’s offending was his culpable failure to keep a lookout and the consequences of his failure; whether or not he had been trained to avoid the results of his own reckless inattention was irrelevant,” the Supreme Court said. 

Case calls out for jail time

In the circumstances, the Supreme Court ruled the facts of the case called for deterrence of such offending by heavy vehicles by imposing actual jail time.

“The Attorney-General has succeeded in demonstrating error and has established that the original sentence was manifestly inadequate,” the Supreme Court ruled.

But Palmer nonetheless escaped a heavier sentence and jail time.

Bureaucratic fail means offender walks

Palmer was convicted and originally sentenced on October 25, 2018. The notice of appeal was filed on November 23, 2018. The hearing of the appeal took place on June 11, 2019 – seven months after the notice to appeal was filed.

The Supreme Court decided that, because of the delay between the date of the notice of appeal and the date of the appeal hearing, it would not re-sentence Palmer.

It had a pointed comment for the local bureaucracy. The Supreme Court indicated that it watches for cases in which a “very prompt” hearing is desirable. An appeal against sentence by the Attorney-General is one of those cases. It is desirable for the Director of Public Prosecutions to ensure that such cases are brought to the Court’s notice, the Supreme Court indicated.

“For these reasons, the appeal was dismissed,” the Supreme Court ruled.

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Jim Wilson, Australia Correspondent

Sydney-based journalist and photojournalist, Jim Wilson, is the Australia Correspondent for FreightWaves. Since beginning his journalism career in 2000, Jim has primarily worked as a business reporter, editor, and manager for maritime publications in Europe, the Middle East, Asia, and Australia. He has won several awards for logistics-related journalism and has had photography published in the global maritime press. Jim has also run publications focused on human resources management, workplace health and safety, venture capital, and law. He holds a degree in law and legal practice.

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