Bombardieri v R

LEGISLATION CITED: Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999

Allen v Regina [2008] NSWCCA 11 House v The King (1936) 55 CLR 499 Lawler v The Queen (2007) 169 A Crim R 415 Page v R [2009] NSWCCA 26 R v AEM Snr; R v KEM; R v MM [2002] NSWCCA 58 R v Borkowski [2009] NSWCCA 102 R v Cameron (2005) 157 A Crim R 70 R v Camilleri (New South Wales Court of Criminal Appeal, 8 February 1990, unreported) R v Cramp (1999) 110 A Crim R 198 R v Dodd (1991) 57 A Crim R 349 R v Falzon [2000] 33 MVR 128 R v Geddes (1936) 36 SR (NSW) 554; (1936) 53 WN (NSW) 157b CASES CITED : R v Jarrold [2010] NSWCCA 69 R v Jurisic (1998) 45 NSWLR 209 R v Oliver (1980) 7 A Crim R 174 R v Ryan (2003) 141 A Crim R 403 R v Scott [2005] NSWCCA 152 R v Way [2004] NSWCCA 131 Regina v Tait and Bartley (1979) 46 FLR 386 Regina v Whyte [2002] NSWCCA 343 SBF v R [2009] NSWCCA 231 Thompson v R [2007] NSWCCA 299 Veen v R (No 2) [1988] HCA 14; (1988) 164 CLR 465 Whybrow v R [2008] NSWCCA 270 Young v R [2009] NSWCCA 298

PARTIES: Mark Bombardieri Regina

COUNSEL: A Haesler SC/S O'Campo (Applicant) P Miller (Crown)

SOLICITORS: S O'Connor (Legal Aid Commission of NSW (Applicant) S Kavanagh (Solicitor for Public Prosecutions (Crown)

IN THE COURT OF CRIMINAL APPEAL 2008/5927

BEAZLEY JA BUDDIN J BARR AJ

1 BEAZLEY JA: I have had the opportunity of reading in draft the reasons of Buddin J. His Honour has helpfully set out the facts and the sentencing judge's assessment of the gravity of the applicant's offending. That allows me to put my own considerations in this matter in an abridged form. It is sufficient to note that the applicant engaged in an extenuated period of dangerous driving at speeds of up to 160 km per hour over a significant distance, including in speed zones of 80 and 100 km per hour, in circumstances of aggravation, namely, to escape pursuit by a police officer. As a result, one person was killed. 2 Against this factual background, I commence my consideration of the applicant's application for leave to appeal, with the observation that sentencing principle requires that the sentence imposed upon an offender ultimately reflects the objective seriousness of the offence committed and that there must be reasonable proportionality between the sentence imposed and the circumstances of the crime committed. The principle has its origins in the common law and now finds statutory expressions in the Crimes (Sentencing Procedure) Act 1999, s 3A. See R v Geddes (1936) 36 SR (NSW) 554; (1936) 53 WN (NSW) 157b; R v Dodd (1991) 57 A Crim R 349; R v Scott [2005] NSWCCA 152. 3 In R v Dodd the Court said at 354: "As Jordan CJ pointed out in Geddes at 556, making due allowance for all relevant considerations, there ought to be a reasonable proportionality between a sentence and the circumstances of the crime, and we consider that it is always important in seeking to determine the sentence appropriate to a particular crime to have regard to the gravity of the offence viewed objectively, for without this assessment the other factors requiring consideration in order to arrive at the proper sentence to be imposed cannot properly be given their place. Each crime, as Veen (No 2) (1988) 164 CLR 465 at 472; 33 ACrimR 230 at 234 stresses, has its own objective gravity meriting at the most a sentence proportionate to that gravity, the maximum sentence fixed by the legislature defining the limits of sentence for cases in the most grave category. The relative importance of the objective facts and subjective features of a case will vary: see, for example, the passage from the judgment of Street CJ in Todd [1982] 2 NSWLR 517 quoted in Mill (1988) 166 CLR 59 at 64; 36 ACrimR 468. Even so, there is sometimes a risk that attention to persuasive subjective considerations may cause inadequate weight to be given to the objective circumstances of the case: Rushby [1977] 1 NSWLR 594." 4 The converse is also true. Focus on the objective seriousness of the offence without proper regard to the other factors that may be taken into account, including in the sentencing process, may also lead to sentencing error. Those other factors include: the sentencing principle of promoting the rehabilitation of the offender: Crimes (Sentencing Procedure) Act, s 3A(d) and any mitigating factors, including: that the offender does not have any significant record of previous convictions (s 21A(3)(e)); that the offender is unlikely to re-offend (s 21A(3)(g)); that the offender has good prospects of rehabilitation (s 21A(3)(h)); and that the offender has shown remorse in the manner required by this provision (s 21A(3)(i)). This combination of the objective seriousness of the offending conduct, the manifold purposes of sentencing reflected in Crimes (Sentencing Procedure) Act, s 3A and the mitigating and aggravating features relevant to the offender, exemplifies the fundamental notion of individualised justice which underpins sentencing: Regina v Whyte [2002] NSWCCA 343; (2002) 55 NSWLR 252. 5 The trial judge found that there were no circumstances of aggravation within s 21A(2). In considering questions of mitigation, his Honour rejected the applicant's submission in respect of s 21A(3)(e) because of his driving record. Nor was his Honour prepared to find that the applicant was unlikely to re-offend. However, his Honour accepted that the applicant had good prospects of rehabilitation and had exhibited remorse. 6 This was also a case where the applicant pleaded guilty. His Honour held that but for the plea, he would have regarded the appropriate sentence as 12 years imprisonment. The sentence of 10 years imprisonment thus reflected a discount of 16.66 per cent. There is no specific complaint about the discount. The applicant's complaint is that the objective seriousness of the offence did not call for the severity of the sentence imposed. 7 The question for this Court to determine is whether, given the objective seriousness of the applicant's offending conduct, having regard to the purposes of sentencing and giving appropriate weight to the mitigating factors in s 21A(3) that the sentencing judge found in his favour, the sentence imposed was manifestly excessive. 8 The offence of which the applicant was convicted is one of a series of offences contained in the Crimes Act 1900, s 52A. Those offences are: dangerous driving occasioning death, carrying a maximum penalty of 10 years imprisonment: s 52A(1); aggravated dangerous driving occasioning death, carrying a maximum penalty of 14 years imprisonment, being the offence with which the applicant was convicted: s 52A(2); dangerous driving occasioning grievous bodily harm, carrying a maximum penalty of 7 years imprisonment: s 52A(3); aggravated dangerous driving occasioning grievous bodily harm, carrying a maximum of 11 years imprisonment: s 52A(4). 9 In the guideline judgment of Whyte Spigelman CJ restated, with slight amendment, the factors relevant as aggravating matters (that is, matters relevant to the seriousness of the offending, not s 21A(2) matters) when considering the appropriate sentence to impose in respect of s 52A offences: see the earlier guideline judgment of R v Jurisic (1998) 45 NSWLR 209. Those factors (as amended) are:

(i) Extent and nature of the injuries inflicted; (ii) Number of people put at risk; (iii) Degree of speed; (iv) Degree of intoxication or of substance abuse; (v) Erratic or aggressive driving; (vi) Competitive driving or showing off; (vii) Length of the journey during which others were exposed to risk; (viii) Ignoring of warnings; (ix) Escaping police pursuit; (x) Degree of sleep deprivation; (xi) Failing to stop. 10 It should be noted that of these enumerated factors, the appellant's conduct falls to be characterised by the factors referred to in (i), (ii), (iii), (v), (vii), (viii) and (ix). I do not include (ix), police pursuit, because that is the matter of aggravation specified in the offence. The applicant's moral culpability can, therefore, be seen as being very high. 11 The Chief Justice in Whyte concluded, at [229], that the guideline for offences against s 52A(1) and s 52A(3) for the typical case thus identified should be: "Where the offender's moral culpability is high, a full time custodial head sentence of less than three years (in the case of death) and two years (in the case of grievous bodily harm) would not generally be appropriate." 12 His Honour observed, at [230], that in the case of a lower level of moral culpability, a lower sentence would be appropriate. 13 The Chief Justice then referred to the aggravated version of the s 52A offences including s 52A(2) and noted that an appropriate increment to reflect the higher maximum penalty, and what will generally be a higher level of moral culpability, is required. The Chief Justice further observed that other factors, such as the number of the victims, would also call for an appropriate increment in the sentence imposed. The Chief Justice then reiterated the principal of individualised justice, stating: "[232] The guideline is, to reiterate, a 'guide' or a 'check'. The sentence imposed in a particular case will be determined by the exercise of a broad discretion taking into account all of the factors required to be taken into account by s21A of the Crimes (Sentencing Procedure) Act .

[233] This guideline focuses attention on the objective circumstances of the offence. The subjective circumstances of the offender also require consideration. For the reasons I have given above, when discussing the proportionality cases, particularly R v Dodd, this approach reflects the principle of proportionality as discussed in those cases. No submission was made to this Court that the new s21A of the Crimes (Sentencing Procedure) Act inserted by the 2002 Act, affects this line of authority." 14 A reference to the statistics maintained by the Judicial Commission of New South Wales indicates that a sentence of 10 years imprisonment for the offence of aggravated dangerous driving causing death contrary to s 52A(2) as was imposed upon the applicant, is the highest sentence yet imposed in New South Wales. Likewise, the non-parole period of 6 years 6 months imposed on the applicant is also the highest imposed. 15 Counsel for the applicant acknowledged the care that must accompany the use of such statistical references: see Allen v Regina [2008] NSWCCA 11 per Grove J at [24]. This Court has frequently brought attention to this: see R v AEM Snr; R v KEM; R v MM [2002] NSWCCA 58 at [114]. This is because statistical references fail to accommodate the purpose (or purposes) for which a sentence is imposed: see the Crimes (Sentencing Procedure) Act, s 3A; and, therefore, are of limited utility. However, used appropriately and within the framework of their well-recognised limitations, they can be of some assistance in the sentencing process. 16 Regard may also be had to the sentences imposed in other cases. In R v Oliver (1980) 7 A Crim R 174 at 177, Street CJ (Begg and Slattery JJ agreeing) observed that sentencing patterns that take account of the type and quantum imposed in similar cases assist the court in "interpreting and carrying into effect the policy of the legislature". The Chief Justice warned, however that, sentences are "not to be arbitrarily dictated by mathematical application of statistics". His Honour commented that: "There is … always a danger … of seeking to use a factual assessment in one case as a legal precedent or authority to govern the decision in another". 17 As a general rule, the maximum penalty for an offence is reserved for the "worst type of case falling within the relevant prohibition": R v Way [2004] NSWCCA 131 at [51]; Regina v Tait and Bartley (1979) 46 FLR 386, having regard to the objective gravity of the offence: R v Camilleri (New South Wales Court of Criminal Appeal, 8 February 1990, unreported). That is not to say, however, that where a more heinous offence can be imagined that the maximum penalty should not be imposed: Veen v R (No 2) [1988] HCA 14; (1988) 164 CLR 465 at 478. 18 The applicant submitted that the sentence imposed upon him was much higher than sentences which have previously been imposed for this offence, and so much higher than proposed by the Chief Justice in Whyte as to indicate that the sentence imposed was excessive and that his Honour's sentencing discretion miscarried. 19 The applicant further submitted that when the cases involving offences under s 52A(2) and manslaughter were reviewed, the sentence imposed upon him was equivalent to a sentence that would be imposed had he been convicted of manslaughter, which carries a maximum sentence of 25 years imprisonment. It is well recognised in the authorities, and as the difference in the maximum penalty indicates, manslaughter is a "much more serious offence than aggravated dangerous driving causing death": see R v Cramp [1999] NSWCCA 324; (1999) 110 A Crim R 198 at [108]. A consideration of the cases to which the court was referred, and the review of the cases undertaken by Buddin J reveals that that there are few driving manslaughter convictions in which a penalty of more than 10 years imprisonment has been imposed. 20 The sentence imposed by the sentencing judge was recognised by all as being severe. That, of itself, is not sufficient to place it in the category of manifestly excessive. Nor is the fact that it is the highest sentence imposed for an offence under s 52A(2). However, it is the comparison with the sentences imposed for manslaughter which has satisfied me that his Honour's discretion did miscarry and that the sentence imposed was manifestly excessive. In reaching this conclusion, I am acutely aware that a person, who was doing no more than driving on the right side of the road, has been killed and that the purposes of sentencing include denunciation of the criminal conduct of the offender and the need to recognise the harm done to the victim of the crime and the community: Crimes (Sentencing Procedure) Act, ss 3A(f) and (g). 21 However, sentencing principle also demands consistency of sentencing: see Whyte especially at [146]. The seriousness of the applicant's conduct cannot be understated. It falls at the high end of objective seriousness for this offence. However, I am bound by the various principles of sentencing to which I have referred, recognising their internal tension. Had the overwhelming principle been denouncement, I would not have interfered with the sentence imposed. However, that is not an overwhelming tenet of sentencing principle. It is one purpose of sentencing that must play its appropriate role with others, including, as I have said, consistency of sentencing. 22 I agree with the orders proposed by Buddin J. 23 BUDDIN J: The applicant seeks leave to appeal against a sentence imposed upon him in the District Court following his plea of guilty to an offence, pursuant to s 52A(2) of the Crimes Act 1900, of aggravated dangerous driving causing death. The Crown accepted the applicant's plea in full satisfaction of an indictment which also charged him with manslaughter. The circumstance of aggravation particularised in the indictment was that the applicant was driving his vehicle in an endeavour to escape pursuit by a police officer: s 52A(7)(c). The offence to which the applicant pleaded guilty attracts a maximum penalty of 14 years imprisonment. The applicant was sentenced to 10 years imprisonment with a non-parole period of 6½ years to date from 12 August 2007. He was also disqualified from driving until 11 August 2015. 24 An agreed statement of facts was provided to the sentencing judge. It revealed that on 12 August 2007 the applicant departed from his home on the Gold Coast intending to drive to South Australia where his parents resided and where he had grown up. He had travelled almost 280 kilometres before reaching the location at which the fatal collision took place. In describing the background to the offence, it is convenient to reproduce the Crown's helpful summary of the salient features of the case: (a) a number of persons on the highway (who later provided police statements) noticed the applicant's high speed, overtaking on the nearside of the highway, overtaking over double unbroken lines and on occasions into the path of oncoming vehicles (which is eventually how the fatal collision took place);

(b) at 12:59 pm, he drove through a speed camera at 151 kmph in a 100 kmph zone;

(c) shortly after 1:45 pm, he was observed by a police officer, Senior .Constable Field ('Field'), travelling well in excess of the 80 kmph limit in that area [who] measured his speed by radar at 156 kmph;

(d) Field gave chase with his emergency lights and sirens activated. During this time, the applicant reached 160 kmph in a 100 kmph zone, crossed over unbroken lines and travelled on the wrong side of the road approaching crests. Field ceased the chase after about four minutes given the extreme danger to other road users. Numerous calls were made on CB radio by truck drivers soon afterwards, commenting on the applicant's high speed, overtaking manoeuvres and him crossing unbroken lines;

(e) At about 2 pm, Field again saw the applicant, parked at an intersection of the highway on a side road. He switched on his sirens and lights once again and followed the applicant down the side road, where, after about 600 metres, the applicant turned his vehicle in front of the police vehicle and caused a minor collision. Field (dressed in police uniform) stepped partly out of his vehicle, drew his revolver, identified himself as a police officer and told the applicant to turn off his engine; however the applicant ignored him, backed up and drove back onto the highway. Field re-commenced the pursuit and a short time later the applicant stopped again at the side of the highway. Field exited his vehicle and ran up to the applicant's driver's side door, but again the applicant drove off;

(f) The pursuit continued southwards along the highway until a short time later when, at approximately, 2:04 pm, the collision took place. The applicant overtook a utility by crossing over unbroken lines and into the path of on-coming traffic. Northbound vehicles were forced to take urgent evasive action (video and still photographs recorded by the police onboard camera were tendered as part of exhibit A). The second of the on-coming vehicles was driven by the victim, Mr McCormack, who swerved onto the grass verge to avoid the applicant, but then lost control of the vehicle and rotated back onto the road and into the path of an oncoming semi-trailer. The victim's vehicle collided with the semi-trailer and wrapped around the front of the semi-trailer, killing the victim instantly;

(g) The applicant and Field were unaware of the collision behind them and continued southwards for some time before Field again ceased the pursuit. Eventually, at about 2:25 pm, the applicant stopped his vehicle on a side road. He was found by police, arrested and taken to Grafton Police Station where he was interviewed ;

(h) The distance between the location where the applicant's driving was first noticed by a witness and the collision site was approximately 190 km.

Also during the course of the driving, he failed to pay for petrol at a service station, although he did make an attempt to pay by credit card which was not approved. He left his credit card at the station. 25 During the course of his interview with police, the applicant said that when he first became aware that he was being pursued by another vehicle, he thought that he was about to be "carjacked". The applicant explained that remark by referring to an incident which had occurred in South Australia, during the course of which he maintained that he been the victim of a "car-jacking". The police report in respect of that incident was in evidence. Nevertheless, that incident can hardly have explained or justified the manner of the applicant's driving in the period before he was pursued by the police. Moreover, the applicant conceded, whilst being cross-examined during the course of the sentence proceedings, that he thought he was being pursued because he was driving whilst unlicensed and because he had failed to pay for the petrol. 26 His Honour aptly described the objective gravity of the offence in the following terms: There was a total disregard for the safety of anybody else on the highway and indeed the facts show the offender should not have been driving at all because he was not the holder of a current licence, a fact that was known to him. The moral culpability is very high in this case. The type of driving, the distances involved, the degree of risk to other people on that length (sic) that I have already described, the distance from Byron down to south of Grafton, the degree of speed, the erratic and aggressive driving, and then the length of the journey to which I have already referred, that is coupled with the number of people put at risk. On top of that there was the clear awareness of some vehicle pursuing him and after the first incident down the dirt road when the officer got out and drew his weapon, there was no doubt at all in the offender's mind that it was the police who were trying to stop him, and he paid no attention to any of those matters. 27 The applicant was born in December 1986 and was, accordingly, 20 years old at the time of sentence. As I have said, he grew up in South Australia. The applicant's father, who is a real estate agent, gave evidence that the applicant had completed a certificate in real estate sales in that State. He also gave evidence that whilst the applicant had been working for him, he had demonstrated a very high standard of performance. The applicant had also worked in a variety of other jobs since leaving school. He gave evidence that he had gone to the Gold Coast because he hoped to get involved in selling real estate there. Testimonials attesting to the applicant's personal qualities were also in evidence. 28 The applicant had several entries on his South Australia driving record, the most serious of which was driving at a dangerous speed. Furthermore, he did not possess a licence at the time of the offence, his SA driver's licence having been cancelled on 29 November 2006. 29 In addition, there was a large volume of material before the sentencing judge, including his medical records from South Australia, concerning the applicant's psychological and mental condition. A Justice Health psychiatric report in respect of the applicant had, at the request of the Court, been prepared by Dr Samuels. The applicant told Dr Samuels that at the time of the offence he was not taking his medication which consisted of Valproate, Xanax and Arapax and that, as a consequence, he was "in quite a paranoid state". He said that he had not seen a psychologist since moving to the Gold Coast from South Australia in May or June 2007. It is clear from the records obtained from his treating doctors, which included at least one psychiatrist, that the applicant had been receiving treatment in South Australia for anxiety and depression. He was described as being on a "mental health plan" which was being administered by a psychologist. The applicant acknowledged that, for some time prior to entering custody, he had been using cocaine, 'ice' and heroin. He denied however that he had been using illicit drugs at the time of the offence. He told Dr Samuels that there was a family history of Bipolar Disorder. The evidence revealed that since entering custody, the applicant had been on fairly large quantities of mood stabilising and antipsychotic medication. Dr Samuels was of the opinion that the applicant had a mood disorder, although at the time he saw the applicant, he believed that he was in remission. 30 The applicant informed Mr Gregory Fathers, who prepared a psychological report on his behalf, that he had first been prescribed Xanax when he was about 17. The applicant admitted to Mr Fathers that he tended to self-medicate and that he had not always been compliant with the various therapeutic efforts which had been made in the past to assist him. Mr Fathers formed the opinion that the applicant's behaviour suggested "a conduct disorder". He also concluded that there was evidence of an underlying, disturbed personality function, including elements of a mood disorder with psychotic features, which had been disguised by his medication and use of illicit substances. Although Mr Fathers thought that the applicant was in all likelihood "psychologically unstable" at the time of the offence, he did not believe that psychological instability was the cause of the offending. 31 His Honour observed that "there is a wealth of medical evidence suggesting that at the very least, he is, but then much more was, psychologically disturbed". His Honour arrived at the following conclusion about this aspect of the case: What it comes down to is that I am quite satisfied, as I have said, there was a psychological disorder and the issue then arises as to whether that means the issue of personal deterrence is increased and general deterrence is reduced. Now I am not satisfied myself that all these medical issues caused or contributed to the particular offence with which he is charged and to which he has pleaded guilty, but I am satisfied overall, as I have said, that there is psychological disturbance here and that treatment is appropriate and necessary. If I am wrong about the lack of any connection between the mental situation and the offence, then the reduction that it would then be appropriate to make in the case of general deterrence would, in my view, be completely counterbalanced by the need for specific deterrence for the safety of the public to keep this young man off the roads and for people to realise that in any event this sort of behaviour cannot be tolerated from them, as a person, let alone from people in general. 32 His Honour took into account, on the applicant's behalf, his plea of guilty. His Honour indicated that, but for the plea of guilty, the head sentence would have been 12 years imprisonment. He gave the applicant credit for the remorse which he had expressed in a letter that was addressed to the victim's family, and which the applicant read out in court. His Honour recorded the fact that the applicant had attempted to take his life the day after the incident whilst he was still in police custody. His Honour said that he attributed that act "to a realisation of what he had done". His Honour also found that the applicant had accepted responsibility for his actions. His Honour concluded that the applicant had "good prospects of rehabilitation" and that "the enormity of what he did on that day has certainly come home to him". 33 His Honour made a finding of "special circumstances" on account of the applicant's age, the fact that this was his first custodial sentence and because of his "health issues". As a result, his Honour concluded that a longer period of parole was required in order to facilitate the applicant's rehabilitation. 34 The applicant gave evidence that, following two separate assaults upon him in custody, he had been serving his sentence on protection. Although he was not in strict protection, he was confined in a facility described as "Special Management Area Protection" (SMAP). Although there were restrictions placed upon him, he was still able to associate with other protection inmates and to access psychiatric services. The authorities concerning the manner in which this issue is to be approached were reviewed in R v Jarrold [2010] NSWCCA 69 [at paras 27-30]

The appeal 35 The sole ground of appeal is that the sentence which was imposed was manifestly excessive. It was expressly acknowledged by counsel, who appeared on behalf of the applicant, that there was no specific error on the part of the sentencing judge which could be identified. 36 In support of the overall contention that the sentence was manifestly excessive, the applicant advanced a number of submissions. Counsel commenced by reiterating that the sentencing judge had nominated 12 years as the "starting point" before allowing for the plea of guilty. Counsel submitted that there were a number of other features of a subjective nature which also needed to be brought into account. They were:

(b) the remorse which he had demonstrated together with his acceptance of responsibility for his actions;

(c) his psychological problems which would make his time in custody more burdensome;

(d) the fact that he was serving his time on protection because of the assaults to which he had been subjected and;

(e) his good prospects of rehabilitation. 37 These matters were, of course, relevant to an assessment of both the head sentence and the non-parole period. It was submitted that these factors, particularly when taken in combination, should have led to an appreciable amelioration of the otherwise appropriate sentence. It was submitted that, since the maximum penalty was 14 years and the nominated "starting point" for the head sentence was 12 years, then either those factors had been afforded little, if any, weight by the sentencing judge or alternatively that his Honour must have commenced the sentencing exercise at, or very close, to the maximum penalty in order to give proper effect to those subjective features of the case, other than the plea of guilty, to which reference has just been made. Either way, it was contended that error of the kind referred to in House v The King (1936) 55 CLR 499 had occurred. 38 So far as the second of those scenarios is concerned, it was contended that although this was an offence of the utmost seriousness, it could not be regarded as falling within the "worst category" of offence. Nor, it was pointed out, had the learned sentencing judge determined that it was. Moreover, although the Crown Prosecutor at the sentence hearing had submitted that it approached that standard, he had ultimately accepted that it nonetheless fell just short of it. Accordingly, for his Honour to have commenced the sentence at, or very close to, the maximum penalty was, so it was contended, demonstrative of error. 39 It was further submitted that the sentence which was imposed was akin to the type of penalty which might have been anticipated had the applicant stood for sentence in respect of the more serious offence of manslaughter. To have imposed a sentence of that severity was also said to be indicative of error, particularly given that the Crown had decided not to proceed with that charge. 40 In light of that submission, it is now convenient to consider various instances of what are sometimes referred to as motor/manslaughter offences, commencing with this court's decision in R v Cramp (1999) 110 A Crim R 198. That offender, who was aged 55, was found guilty of manslaughter after trial. He received a head sentence of 9 years 4 months imprisonment with a minimum term of 7 years. He permitted the deceased, who was a 16 year old learner driver, to drive his vehicle after plying her with drinks. The deceased began to drive fast but the offender encouraged her to drive faster and at times the vehicle travelled at speeds of 150 kmph. More than three hours elapsed between the beginning of the trip and the fatal collision during which time there had been several "near misses" and three further stops to obtain more alcohol. At one stage the offender drove for a period of about 20 minutes with a 10 year old child sitting on his lap and steering the vehicle. The child did so because he wanted to prevent the deceased from driving, being afraid about the speeds at which the car was travelling. The deceased had resumed driving by the time the vehicle collided with a telegraph pole. She and the offender were thrown out of the vehicle as neither of them was wearing a seat belt. The girl was killed and the offender received severe head injuries. In rejecting the submission that the sentence was manifestly excessive, Barr J (as his Honour then was) with whom Sully and Ireland JJ agreed, said: It is difficult to imagine a more serious course of conduct than that followed by the appellant. What took place happened over a period of about three and a half hours and over a distance of 35 km. The appellant was the only adult having the care of four children. He was aware that he was too drunk to drive and, in order to avoid the consequences to himself of drinking and driving, encouraged the deceased to drive. It was he alone who supplied alcohol and encouraged her to drink it. Three young children as well as the deceased were put at risk. Very high speeds were reached on the direct encouragement of the appellant to drive faster. All this was done in the face of the fear of the three boys, their entreaties and efforts to bring the career to an end. As his Honour observed, the appellant exercised a strong moral influence over the deceased by virtue of his long experience and mature age and her inexperience and youth. The apparent careless attitude of the appellant to the matter of driving was especially dangerous. In fixing the sentence his Honour referred to the offence of aggravated dangerous driving occasioning death, provided for in s 52A(2) of the Crimes Act 1900 (NSW), the maximum sentence for which is 14 years imprisonment. His Honour observed that that was the crime which in his opinion most closely resembled the crime for which he was punishing the appellant and took 14 years imprisonment to be a general guide to the current opinion of the Parliament concerning the maximum sentence for motor vehicle manslaughter. His Honour erred in making that observation and that comparison. The offence for which his Honour was sentencing the appellant was manslaughter, a much more serious offence than aggravated dangerous driving causing death. The maximum penalty was penal servitude for 25 years . His Honour's error favoured the appellant. In my opinion this case was of such a serious nature as to be seen as falling into the worst category of cases of its kind. [paras 105-109] (emphasis added) 41 In R v Cameron (2005) 157 A Crim R 70 this Court allowed a Crown appeal and substituted an overall head sentence of 9 years imprisonment with a non-parole period of 6 years. The respondent pleaded guilty to three counts of manslaughter and one count of aggravated dangerous driving causing grievous bodily harm in respect of an incident in which three passengers in the car which the respondent was driving were killed and another was injured. The respondent was permitted by the owner of the vehicle, which was very powerful, to drive it as a birthday present. The respondent was in fact celebrating his 21st birthday. He drove the vehicle whilst he was unlicensed and on a bond. He was also intoxicated and was speeding when the vehicle collided with a pole. The respondent had also ignored warnings to slow down. Grove J, with whom McClellan CJ at CL and Hislop J agreed, said: In the present case, the principal relevant offences are manslaughter and it is unproductive to consider what might have been an appropriate punishment if they were aggravated dangerous driving causing death. In R v Vukic (2003) 38 MVR 475, Adams J commented: ... there is a real distinction between the extent of culpability reflected in the offence of manslaughter as distinct from the offence of dangerous driving causing death, characterised by the differing ingredients of each crime. In some cases, of course, the distinction may be a fine one but that ought not to obscure the fundamental point that an offender can be punished only for the crime of which he or she is convicted , an obvious and fundamental notion of justice which is given authoritative expression in R v De Simoni (1981) 147 CLR 383; 5 A Crim R 329. Adams J was concerned to caution against an offence contrary to s 52A being treated as an offence of manslaughter but it is equally a matter of principle to caution against an offence of manslaughter being treated as if it were an offence against the statute. That manslaughter is a markedly more serious offence than an offence contrary to s 52A was demonstrated in the lengthy historical review by O'Brien J in R v Buttsworth [1983] 1 NSWLR 658 . It is recognized that, since that judgment was delivered, the aggravated forms of offence contrary to s 52A have been legislated but the distinction between manslaughter and the statutory offences remains valid . [paras 26-28] emphasis added) 42 In R v Borkowski [2009] NSWCCA 102 Howie J, with whom McClellan CJ at CL and Simpson J agreed, observed: As the law presently stands, there is a rational, logical and cohesive hierarchy of offences concerned with the infliction of death or serious injury by the use of a motor vehicle. The offences range from negligent driving causing grievous bodily harm (s 42(1)(b) of the Road Transport (Safety and Traffic Management) Act with a maximum penalty of 9 months imprisonment) through the driving offences in the Crimes Act to manslaughter by gross criminal negligence. All of these offences involve varying degrees of negligence, however the actual conduct may be described, ranging from a lack of care and proceeding through dangerousness to culpable negligence: R v Buttsworth [1983] 1 NSWLR 658. This structure is acknowledged by s 52AA(4) that provides that on a trial for an offence of manslaughter or an offence under s 53 or s 54 a jury can return a verdict of guilty of an offence under s 52A. It is also seen in s 52A(6), a provision that prevents a person being convicted of both manslaughter and an offence under s 52A arising from the same facts. [para 56] 43 In that case, the respondent to a Crown appeal pleaded guilty to two counts of manslaughter as a result of which he was sentenced to an overall sentence of 9 years imprisonment with a non-parole period of 6 years. At the time that his vehicle collided with the vehicle in which the two victims had been travelling, the respondent had been engaged in a street race along the Great Western Highway with two other vehicles. The race had proceeded over a distance of about 5 kilometres and at the time of the collision the respondent's vehicle was travelling at 120 kmph in a 60 kmph zone. The vehicles in the race were observed to be travelling at high speed and were seen to be weaving in and out of traffic. They also raced through a pedestrian crossing outside a licensed club. A blood sample taken from the respondent revealed the presence of the residue of cannabis and a blood alcohol reading of 0.031. The respondent had a lengthy criminal record dating back to 1984. His traffic record included two convictions for PCA offences and one offence of driving whilst disqualified. This court concluded that the sentences were manifestly inadequate. Howie J said: But, however the manslaughter was described, it was an offence of the utmost seriousness because of the danger it posed to other persons in the vicinity, because of the flagrant breach of the road rules involved and because the loss of life was almost inevitable. It was more serious than other motor manslaughter cases to which the Court's attention was taken because it involved three vehicles all being driven dangerously in a joint enterprise and, hence, the potential dangerousness to others in the vicinity was increased dramatically from a case involving the dangerous driving of a single vehicle. In my opinion that fact alone takes this offence well beyond the seriousness of the criminality considered in R v Cameron [2005] NSWCCA 359; 157 A Crim R 70.

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:

3 Quash the sentence imposed in the District Court and sentence the applicant to a non-parole period of 5 years 9 months to commence on 12 August 2007 and to expire on 11 May 2013 with a total term of 9 years imprisonment which will expire on 11 August 2016. The applicant will be eligible for release on parole on 11 May 2013. 57 BARR AJ: I agree with Buddin J. **********

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.