Definition of 'momentary inattention' will decide punishment for tow truck driver in fatal crash

What defines “momentary inattention” on our roads will be a deciding factor for a Supreme Court justice considering the sentence for a tow truck driver who killed one person and seriously injured another in a 2021 crash.

Karabar man Jake Barrett admitted he had taken his eyes off the road for “8 to 11 seconds” when towing an excavator in the 80 km/h zone on the Barton Highway at the intersection of the northbound exit from Gungahlin.

He failed to see the lights change at the intersection, colliding with a maroon Ford Falcon on its driver’s side.

The momentum forced the Ford Falcon into the driver’s side of a Toyota LandCruiser.

The Falcon’s driver, Alistair Urquhart, was pronounced dead at the scene.

The LandCruiser’s driver, Scott Wood, suffered multiple broken bones and other serious injuries.

Barrett originally pleaded not guilty to charges of culpable driving causing death and culpable driving causing grievous bodily harm, but later changed his plea to guilty.

Acting Director of Public Prosecutions Anthony Williamson SC noted the law states when there’s a charge of culpable driving causing death that imprisonment is mandatory, unless “momentary inattention” can be proven.

Justice Chrissa Loukas-Karlsson heard arguments for what sentence she should impose on the now-29-year-old Barrett on Friday (21 July).

Defence lawyer Nathan Deakes submitted while Barrett admitted he failed to “keep proper watch of the road”, this was a case of momentary inattention and not an “abandonment of responsibility” matter.

“He made a full and frank admission [to police] he took his eyes off the road to respond to an alarm in the truck cabin,” he said.

“[It was] not for a significant period of time … 8 to 11 seconds is a short period of time.”

He also argued Barrett’s “genuine remorse” had been displayed “immediately roadside” when speaking with attending police officers.

Barrett had also written letters apologising to his victims and their families, and had previously spoken with Mr Urquhart’s sister, where they “made their peace”.

“There’s not much more Mr Barrett can do to display his remorse in regards to these offences,” Mr Deakes said.

“The guilt of this tragic accident is something Mr Barrett will carry for the rest of his life.”

Mr Deakes also outlined Mr Barrett’s abusive upbringing, including being kicked out of his home at the age of 12 by his mother after his father died, and being made to feel his existence was a “burden to his parents”.

In response, Mr Williamson submitted this was a case where the momentary inattention argument did not apply.

He argued momentary inattention meant a “fleeting glance” from the road.

“8 to 11 seconds when driving a 30-tonne piece of heavy machinery at 80 km/h on a busy arterial road, I submit, is extremely significant,” Mr Williamson said.

“Not only did he go through a red light, he failed to observe [the traffic lights] completely changing sequence from beginning to end.”

Mr Williamson accepted while Barrett had a disadvantaged upbringing, it had no causal link to his offending.

He also questioned if Barrett fully accepted the negligence of his actions, which can be a factor considered by a justice during sentencing.

“I accept if he could take this back in a heartbeat, he absolutely would,” Mr Williamson submitted.

“[However the pre-sentence report notes] the offender struggles to accept his actions were negligent, stating anyone in his position would have made the same decision and he was just extremely unlucky this accident occurred.”

He argued if it was found momentary inattention could be applied, additional orders such as a curfew or community service should be added to an intensive corrections order “to give it some teeth”.

If the justice decides imprisonment is appropriate, Mr Williamson said given Barrett’s lack of criminal history and lack of intent behind his offending, a shorter parole period would be suitable.

Justice Loukas-Karlsson is scheduled to hand down her sentence on 14 September.

A hospital blood test following the crash found trace amounts of cannabis in Barrett’s bloodstream, however its related charge was dropped.