Further, unlike many other cases of dangerous driving, there were opportunities for the respondent to come to his senses while the vehicles were stopped at red lights. The respondent was not so befuddled by alcohol or drugs that he could not have realised the very great dangerousness of his conduct and desisted. But these were occasions seen merely as part of the race, allowing the vehicles to accelerate away at high speed after coming together at the stoplights.
…
The very least sentence that could have been imposed upon the respondent was, in my opinion, a total sentence of 12 years with a non-parole period of 9 years. [paras 59-60, 66]
44 For reasons that are not presently relevant, the Crown appeal was dismissed in the exercise of the court's residual discretion.
45 In SBF v R [2009] NSWCCA 231 Johnson J, with whom Spigelman CJ and McClellan CJ at CL agreed, observed that:
both statutory provisions and relevant authorities point to a hierarchy of offences with manslaughter located above aggravated dangerous driving causing death under s.52A. [para 118]
46 In R v Falzon [2000] 33 MVR 128 the offender was charged with one count of manslaughter and a further count of aggravated dangerous driving causing grievous bodily harm to a 13 year old boy who was placed at risk of severe and permanent brain damage as a result of injuries he received in the accident. This court intervened and resentenced that offender to a head sentence of 10 years imprisonment with a non-parole period of 7½ years. The offender was driving a stolen car when police spotted it on a rooftop carpark. A high speed police pursuit of the vehicle through the commercial heart of Fairfield then ensued. In due course, there was a collision at an intersection. The offender had been travelling at high speed at the time and had disobeyed road signs, including a stop sign. The offender had been under the influence of heroin and had ignored his passenger's warnings to stop. The offender had a lengthy criminal record, which included a number of traffic offences. Smart AJ, with whom Beazley JA and Ireland AJ agreed, reviewed a number of decisions in coming to the conclusion that the original sentence had been manifestly excessive. His Honour said:
The appellant referred to three cases where the manslaughter was very serious. In R v Stevens (1993) 18 MVR 107 . the prisoner had been engaged in a drinking spree. About 1.30 am he decided to go home and to steal a car. He started the car by cutting and joining the ignition wires. The owner saw his car being driven away and ran to it. The owner opened the driving door and endeavoured to stop the car. Stevens continued to drive, attempting to control it and remove the owner. The car collided with a car and two buildings. The owner suffered serious injuries and died later. The car collided with another building. Stevens abandoned the vehicle and decamped. There was a plea of guilty. At the time of the crime he was aged 18 years. There were strong subjective features. This court held that a sentence of 9 years 4 months with a minimum term of 7 years was excessive and re-sentenced Stevens to 8 years penal servitude with a minimum term of 5 years and 6 months. The court found that there were special circumstances, namely that the appellant was a young offender, with almost a clear record and real prospects of rehabilitation. Stevens is not as bad a case as the present. He also had strong subjective features and the benefit of a finding of special circumstances.
In R v Ryan (2000) 31 MVR 366 , the prisoner was driving a semi-trailer along Centenary Dr, a 6 lane highway. The truck was driven across the median strip and was on the wrong side of the highway for about 500 m when it struck the two vehicles driven by the deceased persons. Ryan had not lost control of the truck, but intentionally drove it across the median strip into the path of oncoming vehicles, most of which took successful evasive action. Ryan was severely affected by methamphetamines. He had taken these to counteract his exhaustion and tiredness from driving too much without sufficient rest and breaks. He was upset about an earlier minor accident, believed he was going to lose his job and had just told his wife he was going to leave her. He was agitated. Shortly after this, the accident occurred. He was in the throes of amphetamine intoxication and behaved in an irrational and disturbed fashion after the accident. Ryan pleaded guilty to manslaughter. He was aged 27 at the time of the accident. He had a minimal record which was correctly disregarded. He was a reliable and hardworking employee and was genuinely remorseful. Concurrent sentences of 7 years 10 months imprisonment with a non-parole period of 5 years 10 months were imposed. The basic sentence was 8 years but that was reduced to allow for some early pre-sentence custody immediately after Ryan's arrest. [paras 37-8]
47 The third case which his Honour considered was Cramp (supra), to which reference was made earlier in these reasons.
48 In Lawler v The Queen (2007) 169 A Crim R 415, this court dismissed an appeal in respect of an effective head sentence of 10 years 8 months imprisonment with a non-parole period of 8 years, that had been imposed in respect of one count of manslaughter and two counts of aggravated dangerous driving causing grievous bodily harm. The offender was the driver of a prime mover which was unable to slow down when making its descent on to the Mooney Mooney Bridge on the F3 freeway between Sydney and Newcastle. A minor accident had caused a significant build up of traffic on the bridge. The offender's vehicle was carrying a load of materials weighing 18 tonnes. The offender was unable to slow down because, as he was aware, the brakes of his vehicle were defective. His vehicle collided with no fewer than 35 vehicles in all. The driver of one vehicle was incinerated whilst two other drivers were seriously injured. The trail of destruction which resulted was described as resembling a "war zone". The offender, who was aged 46, had numerous driving offences and the vehicle that he was driving was not only in poor condition, but it was also uninsured and unregistered.
49 In Young v R [2009] NSWCCA 298 an appeal against a sentence of 8 years imprisonment with a non-parole of 5 years that had been imposed in respect of an offence of manslaughter was dismissed. That offender had pleaded guilty, was remorseful and had only a minor traffic record. He was heavily intoxicated at the time of the offence. Following a verbal and physical altercation between his group of friends and the group to which the victim belonged, he had driven his car towards the victim's group. He mounted the footpath intending to frighten them but struck and killed the victim. He then left the scene of the accident. The applicant's conduct was deliberate and that led the sentencing judge to express the view that the "case was among the more serious of its kind". This court observed that that finding was "well open" to the sentencing judge and concluded that the sentence was not manifestly excessive. Notwithstanding the fact that this case is a little different from other instances of motor/manslaughter in that the offender used his motor vehicle as a weapon, it is still of some utility in evaluating the overall submission that the sentence is manifestly excessive.
50 In a separate submission, counsel for the applicant also pointed to the fact that the sentence imposed in the present case was the highest sentence yet imposed for a single contravention of s 52A(2) of the Crimes Act. In making that submission, counsel acknowledged that the upper limit for an offence is the maximum penalty which is provided by the legislature rather than what may be reflected in the statistics maintained by the Judicial Commission. It was also accepted that there are well-recognised limitations to the use of statistics. Nonetheless, it is instructive to have regard to other decisions which, like the present case, involve the offence of aggravated driving causing death. A convenient starting point is R v Ryan (2003) 141 A Crim R 403. That offender pleaded guilty to one count of aggravated dangerous driving causing death. Also taken into account, on a Form 1, was an offence of knowingly failing to stop and give assistance where death or injury had occurred. The offender was observed by police and civilians to be driving at an excessive speed for a distance of about 3 kilometres in suburban Sydney prior to his vehicle's involvement in a collision at a set of traffic lights. He was estimated to have then been travelling at 135 kmph in a 60 kmph zone. As a result of the collision, one person died. The offender got out of his car and left the scene of the collision. The offender, who was 23 at the time, had a traffic record which included offences of negligent driving, disobey traffic lights, PCA and several instances of speeding.
51 Grove J, with whom Ipp JA and Shaw J agreed, embarked upon an extensive review of comparable decisions. His Honour's helpful survey of those authorities is reproduced below:
In R v Woodward [2001] NSWCCA 90 a sentence of eight years imprisonment with five years non-parole period for causing one death was sustained. The aggravating feature was that the offender had a blood alcohol concentration of 0.216 grams per 100 ml, that is more than four times the prescribed limit for a driver. The vehicle left the road at an intersection, mounted the kerb, crossed a grass verge and collided with a pole. He had pleaded not guilty. An assertion that the true cause of the accident was mechanical failure was rejected by the jury and also by the judge in his findings for the purposes of sentence. Except for the specific reduction for the plea it is to be remembered that the applicant's sentence was assessed at ten years imprisonment.
In R v Cousins [2002] NSWCCA 81 after a successful Crown appeal against inadequacy of sentence an imposition of eight years imprisonment with a non-parole period of six years was imposed. Two victims were involved, one fatally injured and the other sustaining grievously bodily harm. There was a plea of guilty. The offender had a criminal history not limited to road and traffic matters although he was in fact disqualified from driving at the time of the offences. His record was described as "appalling". The vehicle he was driving was stolen. His driving was terminated when he drove through an intersection against a red traffic control light at 130 - 140 kph and collided with a concrete delivery truck. He was seeking to evade police pursuit at the time. It appears therefore that the facts included two of the available circumstances which would have placed the offences into the aggravated category.
In R v Rayner [2002] NSWCCA 309 an appeal against severity of an effective sentence of six years imprisonment with a non-parole period of four years for one count of aggravated driving causing death and one of causing grievous bodily harm was dismissed. The deceased was a passenger in the offender's car, the injured person was a motorcyclist travelling in the opposite direction. The offender's vehicle had crossed a median strip thus provoking collision. He was a police officer aged thirty seven years. At the time he was subject to a current recognizance to be of good behaviour for three years following a conviction for dangerous driving. His blood alcohol level was in the range of 0.270 to 0.294 grams per 100 ml.
In R v Sen [1999] NSWCCA 199 concurrent sentences of nine years imprisonment with non-parole period of six years and nine months were reduced to seven years imprisonment with non-parole period of five years and three months for two counts of aggravated dangerous driving causing death. There was a blood alcohol concentration of the offender measured at 0.219 grams per 100 ml but the sentencing judge had been wrongly informed about an applicable speed limit and he expressly found that the margin by which it had been exceeded was a significant aggravating factor which he was reflecting in his assessment. On appeal the Crown conceded that misinformation and that the offender was travelling in fact at or about the applicable limit.
In R v Kalanj , unreported CCA 18 December 1997 upon successful Crown appeal against inadequacy the offender was sentenced to five years imprisonment with a non-parole period of two and half years on a count of aggravated dangerous driving causing death. The circumstance of aggravation was a blood alcohol concentration of 0.16 grams per 100 ml. This decision, of course, antedated the guideline judgments in Jurisic and Whyte . The accident occurred at about 11.30 pm in an area where the speed limit had been reduced from 100 kph to 60 kph by reason of some road works but the offender's vehicle had simply crossed to the incorrect side and collided with an oncoming car.
In R v Black , unreported CCA 23 July 1998 the offender pleaded guilty to a count of aggravated dangerous driving causing death and another count of causing grievous bodily harm. The victims were the occupants of a vehicle travelling at about 6 am through the intersection of Parramatta Road and Bold Street, Granville. The offender's vehicle entered the intersection against a red traffic control light at 110 kph. That speed sufficed to elevate the offence into the category of aggravation but, in addition, the offender's driving ability was impaired by the prior ingestion of intoxicating liquor. The blood alcohol concentration was between 0.120 grams to 0.135 grams per 100 ml. He had no prior criminal or traffic antecedents, but did not hold a New South Wales driving licence. The Crown had submitted that the case fell into the worst category of offence. An effective sentence of five years imprisonment with three years non-parole period was imposed after successful Crown appeal. This was accompanied by a reminder that sentences after Crown appeal are of little value in ascertaining the appropriate range of sentence to be imposed in trial courts.
R v McKinney , unreported CCA 10 March 1999 was again a sentence in this Court following a Crown appeal. On a count of aggravated dangerous driving causing death a sentence of three years imprisonment with a non-parole period of one year and six months was imposed. There were some unusually poignant facts in that the victim was the offender's wife who was a passenger in the car which was returning from a visit to an alcohol rehabilitation centre in order to begin a program to cure her addiction. The offender had been drinking while waiting for her. The aggravating circumstance was his blood alcohol concentration of between 0.166 grams and 0.282 grams per 100 ml.
In R v Reeves [1999] NSWCCA 269 the offender was convicted of one count of aggravated dangerous driving causing death and two counts of causing grievous bodily harm. The fatally injured victim was a seventeen year old girl. She and one other victim were pedestrians, the other was a passenger in the offender's car. The aggravating factor was a blood alcohol concentration of at least 0.166 grams per 100 ml. The offender had, knowing that she should not, partaken of alcohol after having ingested prescribed medication for a psychiatric condition. An appeal against severity of an effective sentence of five years imprisonment with a non-parole period of two years and six months was dismissed.
In R v Tadman [2001] NSWCCA 225 the offender pleaded guilty to a count of aggravated dangerous driving causing death. Taken into account on a Form 1 were offences of self administration of heroin and failing to stop. As well as the fatality, one other person was injured but no charge was preferred in that regard and the Court was not invited to take any further offence into account in sentencing. The aggravating factor which elevated this offence into the more serious category was that the offender drove whilst under the influence of a drug. He had no prior criminal record and one previous traffic offence of exceeding the speed limit. It was held that the appropriate sentence would be seven years imprisonment but this was reduced to five years and three months (non-parole period of two years and eight months) by reason of a very timely plea of guilty. The fatally injured person was the driver of a car with which the offender's vehicle collided causing it to spin out of control and into the path of an oncoming taxicab.
R v Vukic [2003] NSWCCA 13 was a decision upon which the appellant sought to place particular reliance. The offender had been sentenced to eight years imprisonment with a non-parole period of five years for aggravated dangerous driving causing death. He had been drinking to the extent that he was refused readmission to the premises at which he had been imbibing. He had made arrangements to leave his car but in fact got into it and drove along Sydney suburban streets until he crossed unbroken separation lines and collided with an oncoming vehicle killing the driver. He claimed a total loss of relevant recollection. At the time of collision he was travelling at an undetermined speed but it was described by a witness, an experienced bus driver, as too fast. His blood alcohol concentration was not less than 0.172 grams per 100 ml.
It was described as a bad case but not one of the worst of its type. It was recognized as that in some cases there can be present aggravating factors in multiplicity. A large number of cases and their outcomes was surveyed in the leading judgment. Some of them I have mentioned and I will not recapitulate the other references. None of them attracted a sentence as high as the one presently under consideration. …
In the event, Vukic was sentenced to seven years imprisonment with a non-parole period of four years.
The preponderance of sentences at the upper range of impositions involve the aggravating factor of prior voluntary ingestion of alcohol or drugs or involve multiple available factors of defined aggravation or multiple victims. That is not the present case.
…the sentence imposed on the applicant is at the extreme upper level of the range of sentence in observable sentencing patterns, however, when examined, sentences comparable to that received by the applicant have occurred when there have been multiple deaths or injuries or multiple circumstances of aggravation and/or prior voluntary ingestion of alcohol or drugs. [paras 49-59, 61-63]
52 In the result, the court intervened and resentenced the offender to 6 years imprisonment with a non-parole of 4 years.
53 For completeness, I record that I have also considered a number of decisions which appear to represent the most serious examples of the offence category presently under consideration that have been determined by this court since Ryan (supra). In that respect, I have had particular regard to Thompson v R [2007] NSWCCA 299, in which a head sentence of 10½ years imprisonment was not disturbed by this court, to Whybrow v R [2008] NSWCCA 270 in which a head sentence of 7 years imprisonment was substituted and to SBF v R (supra) in which a head sentence of 7 years 10 months imprisonment was not disturbed. It is important to observe however that, in each of those cases, the offender stood for sentence in respect of not one, but two deaths. That is not without significance given that, as has often been stated, an offence under s 52A has two elements, namely the act of driving in a relevantly culpable fashion and the consequence or consequences of that act. Generally speaking, the more serious the consequence or consequences, the greater the penalty. Finally in Page v R [2009] NSWCCA 26, a head sentence of 5 years 4 months imprisonment was not disturbed in respect of an offence which involved only one death. However, that offender had a lengthy record for traffic and driving offences, and was under the influence of heroin at the time. Moreover, he had been involved in a police pursuit whilst driving a stolen vehicle at an excessive speed.
54 The Crown accepted that the sentence which the applicant received was very severe. It was nonetheless submitted that it was open to the sentencing judge to impose such a sentence, given the seriousness of the applicant's conduct as displayed by the manner of his driving and the period of time over which it occurred, the number of persons who were thus put at risk, and the circumstances in which the applicant sought to escape from police.
55 The matters to which the Crown has quite properly drawn attention underscore the fact that this was an offence of very significant objective gravity. Nevertheless, I am of the view that the applicant has made good his claim that the sentence imposed was manifestly excessive. My own initial impression led me to that conclusion but I am fortified in that respect by the various decisions to which reference has been made and which, in my view, suggest that the sentence under review would be more appropriate for an offence falling into the motor/manslaughter category of offence. In that respect, it is a telling consideration that the Crown elected not to proceed with that offence which axiomatically is more serious than the one of which the applicant was convicted. Given that conclusion it is strictly unnecessary to finally determine the other matters upon which the applicant relies. However, I am also persuaded that the sentencing judge either effectively ignored the subjective features, other than the plea of guilty, upon which the applicant was entitled to rely or that he erred, in the absence of a finding that it was a case that fell into the worst category, in commencing the sentencing exercise at, or very close, to the maximum penalty. In re-sentencing the applicant I have had regard to his affidavit which suggests that he is using his time in custody in a productive manner. I would confirm the sentencing judge's finding of "special circumstances" for the reasons which his Honour gave.
56 I propose the following orders: