Byrne v R; Cahill v R

Solicitors: 2017/320907: Aboriginal Legal Service (Applicant) Office of the Director of Public Prosecutions (NSW) (Respondent)

2017/325691: Legal Aid (Applicant) Office of the Director of Public Prosecutions (NSW) (Respondent) File Number(s): 2017/320907; 2017/325691 Decision under appeal Court or tribunal: Wagga Wagga District Court Jurisdiction: District Court Citation: [2020] NSWDC 224 Date of Decision: 22 May 2020 Before: His Honour Judge Lerve

Judgment

1. BELL P: I have had the benefit of reading the reasons for judgment of Rothman J with which I agree. On an application for leave to appeal on the basis of manifest excess of sentence, the task of an applicant for leave is a difficult one for reasons that have been explained by Rothman J. A sentence will not be disturbed for the simple reason that members of the Court of Criminal Appeal may have taken a more lenient or harsh view of the matter, were they conducting the sentencing hearing, than the sentencing judge. Something more must be shown that warrants appellate interference with the sentencing judge's discretion, as the famous decision in House v The King (1936) 55 CLR 499; [1936] HCA 40 makes plain.
2. In BP v R (2010) 201 A Crim R 379; [2010] NSWCCA 159 at [102], Johnson J said: "The need for the law to avoid an abstract or automatic response to the youth and immaturity of an offender is illustrated by sentencing cases in Victoria and New South Wales for the offence of dangerous driving causing death. The laws of these States permit persons aged 17 years to obtain a driver's licence with the attendant obligations and responsibilities attaching to that privilege. The youth, immaturity and inexperience of an offender who kills or seriously injures persons whilst driving dangerously play a limited and subordinate role on sentence: Director of Public Prosecutions v Neethling [2009] VSCA 116; (2009) 22 VR 466 at 474-475 [40]- [44], 477 [53]-[55]; SBF v R [2009] NSWCCA 231 at [141]- [160]; TG v R [2010] NSWCCA 28 at [33]."
3. In the present case, both drivers were on provisional licences, as Rothman J has pointed out. That matter, to my mind, only exacerbated the culpability of the offending and made deterrence a particularly important consideration in the sentencing exercise. No doubt this factor influenced the sentencing judge in his conscientious and detailed consideration of the matter.
4. Cases of this kind are a tragedy, pre-eminently for the family of the wholly innocent deceased whose lives have been irretrievably affected by the reckless and irresponsible conduct of the offenders. But they are also a tragedy for the offenders themselves and their families whose lives will also be irretrievably affected. The tragedy could easily have been multiplied given the location of the "race", the speed at which both vehicles travelled and the number of passengers in each vehicle. It is fortunate that further tragedy did not eventuate.
5. The message must be sent in unequivocal terms that motor vehicles are not playthings or dodgem cars to be raced by young people for fun or thrills and with impunity. They are to be used responsibly and strictly in accordance with the rules of the road. These rules exist not only for the safety of the drivers and passengers themselves, but for pedestrians and other road users. The holding of a driver's licence conferring the right to drive a motor vehicle is a privilege which carries heavy responsibilities. Those responsibilities were flagrantly cast aside in the current case and the sentences imposed, though heavy, were appropriate in the circumstances and certainly not manifestly excessive.
6. ROTHMAN J: The Court is required to deal with two applications for leave to appeal. The applicants are Joshua Erin Byrne and Matthew Thomas Cahill.
7. The applications for leave to appeal and the matters sought to be raised on appeal, if leave be granted, were dealt with together as were the appeals of each of the applicants. Each of the applicants was involved in a street race and each was sentenced for manslaughter arising from a collision caused by the street race.
8. Each applicant raises one ground of appeal, which is:
9. Ground 1: The sentence imposed was manifestly excessive having regard to the objective seriousness, the applicant's subjective case and when compared with similar cases.
10. The circumstances giving rise to the death of the victim, Mr Craig Smith, can be summarised briefly. They derive from agreed facts upon which the sentencing judge relied.

Procedural and Factual Background

1. On 23 October 2017, Mr Byrne and Mr Cahill were involved in a street race in Wagga Wagga. Both applicants were on a morning tea break from their TAFE studies and each carried friends in his car.
2. Mr Byrne's car was involved in a collision causing the death of an innocent road user, Mr Craig Smith. Each was charged with manslaughter.
3. Each applicant pleaded guilty to the single charge of manslaughter when in the Local Court. The charge of manslaughter is an offence, being an unlawful killing that is not murder, described in s 18(1)(b) of the Crimes Act 1900 (NSW). It is a common law offence, but nothing turns on that aspect. The offence carries a maximum penalty of 25 years' imprisonment and there is no prescribed standard non-parole period.
4. As a consequence of their plea of guilty at the Local Court, the Local Court committed each of them to the District Court of New South Wales for sentence. On 22 May 2020, each appeared before the District Court, before his Honour Judge Lerve. Each applicant was sentenced to an identical sentence, being a head sentence of imprisonment of 10 years and 6 months, including a non-parole period of 7 years.
5. The sentence was to date from 18 September 2019. The substantive sentencing proceedings occurred over two days on 7 February 2020 and 29 April 2020 and the sentence was imposed on 22 May 2020. It is necessary to deal more fully with the circumstances of the offending.
6. Ironically, each of the applicants was attending TAFE for an automotive course. Just before 10 AM on 23 October 2017, there was a break in lessons and, in accordance with the usual practice, students drove to a nearby cafe, which was approximately 2 km west of the TAFE College.
7. Mr Cahill's car was a black coloured V8 SS VT. He was the holder of a Provisional P2 licence. He had two passengers, each of whom was a student from the same TAFE course.
8. Mr Byrne also drove a Holden. His was a VE Holden Commodore. Mr Byrne was the holder of a New South Wales Provisional P1 licence. Mr Byrne also carried two passengers from the TAFE course.
9. The vehicle driven by each applicant pulled up alongside the other, at a set of traffic lights at the intersection of Edmondson and Coleman streets, Wagga Wagga. Mr Byrne's vehicle was in the outside lane, closest to the centre of the road, and Mr Cahill's vehicle was in the inside lane, closest to the gutter.
10. The dual lanes on the road continue through the intersection and for a further distance of approximately 65 m beyond the intersection. There was a red light.
11. The race that then occurred was not pre-planned and, it seems, the idea for the race occurred when the applicants were situated next to each other at the traffic lights. As would be expected if a race were in progress, when the light turned green, both applicants accelerated aggressively through the intersection and commenced a street race.
12. The sign posted speed limit in the area is 50 km/h. There is a high school located on the north-western corner of Edmondson and Coleman streets.
13. As earlier stated, the two lanes merge after about 65 m and, consistent with the purpose of the car journey, there is a café that is a short distance away. It is a built-up area as the 50 km/h speed limit suggests.
14. During the street race, the deceased, Mr Craig Smith, was in his own car, parked outside his home in Coleman Street, facing generally in a westerly direction. While the street race was in progress, Mr Byrne caused his vehicle to move to the incorrect side of the road, but by the time of the collision, Mr Byrne was in the correct lane or side of the road.
15. The deceased commenced a U-turn from his position on the southern side of Coleman Street. The U-turn was lawful and, at the time it was taken or commenced, it was being done safely.
16. Because of the excessive speed of the vehicles in the street race, after the U- turn had commenced, the front of Mr Byrnes's vehicle collided heavily with the driver's side of the deceased's vehicle. The impact caused the deceased's vehicle to travel approximately 30 m in a westerly direction, with Mr Byrne's vehicle attached to it.
17. The tray of the deceased's utility was almost completely detached from the cabin as a consequence of the force of the impact. The deceased was killed instantly.
18. Mr Byrne and one of his passengers freed themselves from Mr Byrne's vehicle. The other passenger in Mr Byrnes' vehicle was trapped in the front passenger seat and was ultimately freed by rescue personnel.
19. Mr Byrne sustained lacerations to his hands. When he exited the vehicle, Mr Byrne was seen to be upset and crying.
20. Mr Cahill's vehicle was travelling behind Mr Byrne's vehicle and avoided the collision. Mr Cahill pulled over and parked his vehicle near the crash site and he and his passengers went to the aid of the deceased and the occupants of Mr Byrne's vehicle.
21. Two and a half seconds prior to the airbag in Mr Byrne's vehicle being deployed by the force of the impact, his vehicle was recorded as travelling at 143 km/h. Half a second prior to deployment of the airbag, the vehicle was recorded as travelling at 130 km/h.
22. The agreed facts make clear that the speed of Mr Cahill's car was not less than 100 km/h. As earlier stated, the collision occurred at about 10 AM on Monday, 24 October 2017. It was a normal school and work day; the road surfaces were in good condition; the weather was fine and clear; and the road surface was dry. The distance from the traffic lights from which the race commenced to the point of impact is approximately 550 m.

Remarks on Sentence

1. As earlier indicated, the sentence was imposed on 22 May 2020. The remarks on sentence were not provided ex tempore but, quite appropriately, were reserved.
2. As one would expect of a person with the experience in criminal law of the learned sentencing judge, the remarks on sentence are thorough and complete. No complaint is made by either applicant as to the contents of the remarks on sentence or to any principle or conclusion of his Honour. The only complaint is that each sentence imposed by his Honour is manifestly excessive.
3. His Honour dealt with the tragedy of the situation with which he was required to deal and the impossible equation between the loss of human life, on the one hand, and a period of imprisonment, on the other. He dealt with the plea of guilty and whether it was appropriate to provide the full discount of 25% for the utilitarian value of the plea.
4. His Honour discussed the authorities, which I do not recite or summarise. His summary is uncontroversial and, with respect, unassailable. The thoroughness with which his Honour dealt with the matter is commendable.
5. After dealing with all of the authorities and the manner in which the Crown may have argued for something less than the full discount, his Honour concluded that the full 25% discount for the utilitarian value of the plea of guilty should be afforded to each of the applicants.
6. As a consequence of that determination, which, again, is not sought to be challenged by the Crown in these proceedings, assuming for present purposes that it could be, the starting point of the sentence imposed is 14 years' imprisonment, for the head sentence. His Honour expressly referred to the starting point of 14 years.
7. His Honour then recited or summarised the facts and included a photograph of the area, which was tendered by counsel for Mr Byrne during the course of the sentencing proceedings.
8. His Honour then dealt with the assessment of the objective seriousness of the offence. [1] In so doing, his Honour dealt with the well-established principles, by reference to authority, that manslaughter by criminal negligence, or otherwise, has such a varied context and the range of degrees of culpability is so wide that it is difficult, if not impossible, to point to any established sentencing tariff.
9. His Honour then dealt with each of the submissions of counsel and referred to the principles governing the determination of objective seriousness, again by reference to authority, in relation to each such submission. His Honour, for example, differentiated the circumstances that applied before this Court in the decision in Taufahema [2] with the circumstances in the current situation.
10. In that way, his Honour differentiated the relative criminality, compared with co-offenders, of the person who fired shots that caused death with the circumstances before the Court in these offences, where each of the applicants was engaged in the conduct that ultimately caused death; that the applicant, Mr Cahill, must have, at some stage, been in the front; and the applicants were each travelling over 100 km/h, with Mr Byrne travelling at some stage at 143 km/h.
11. As a consequence, his Honour reasoned that there was no difference in criminality between the conduct of the different applicants. Each of them embarked upon the criminal conduct and did so deliberately. In some senses, it was happenstance as to which of the two ultimately had the collision and caused the death.
12. His Honour came to the view, on the question of parity, that each of them is equally culpable and has the same level of objective seriousness. His Honour concluded that the objective seriousness of the matter was in the mid-range of seriousness for matters of this type.
13. Again, no challenge is made to that assessment. I do not, by that last sentence, suggest that any valid challenge could have been made to that assessment.
14. His Honour then dealt with the victim impact statements which he described as speaking very powerfully and eloquently of the tragedy and its effect. His Honour then dealt with the criminal history of each of the applicants. Mr Cahill had no matters recorded against him; Mr Byrne was convicted, as a 17-year-old, of driving in a manner dangerous to the public and other offences related to the one incident, arising out of a police pursuit. His Honour did not consider that the prior offence was an aggravating feature pursuant to the terms of s 21A(2)(d) of the Crimes (Sentencing Procedure) Act and, even if it could theoretically be, his Honour took the view that it was not. Again, his Honour referred to authority on the issue.
15. Next, his Honour dealt with the issue of general deterrence and the need for it to loom large in the sentence that was to be imposed. He also repeated, as was appropriate, the statement of principle that youth is of less assistance as a mitigating factor in serious driving offences, than it might be in other offences, on the basis that if young men are old enough to hold a driver's licence, they should be expected to have the maturity to comply with the relevant road rules. Again, there is reference to authority.
16. Youth, of course, is always a factor in the sentencing of a young person because of immaturity and less-developed executive functioning. Nevertheless, the statements of principle and authority make clear that the impact of youth on the sentence, particularly in relation to general deterrence, is more limited, when one is dealing with driving offences for which the rules are clear and well-known.
17. After dealing with the objective seriousness of the offences before him, and the need for general deterrence, the learned sentencing judge dealt with the subjective cases of each of the applicants.
18. In relation to Mr Cahill, his Honour referred to the report of Dr Olav Nielssen, forensic psychiatrist, and of Dr Roger Blake, psychologist and their reports dated 22 October 2019 and 18 September 2019, respectively. [3] Dr Blake's Report arose in circumstances where Mr Cahill was referred by his General Practitioner to Dr Blake as a treating psychologist for what was perceived to be anxiety and depression.
19. Mr Cahill does not suffer any psychoses; does not have symptoms of bipolar disorder; is a social drinker; and does not use illicit substances.
20. Mr Cahill is the youngest of three siblings. He has been offered an apprenticeship; completed year 10 at school; and hopes to return to employment in motor repair service on his eventual release. The applicant, Mr Cahill, is engaged to be married and he had commenced work on renovating a house near his father's property. The applicant owned the house with his fiancée.
21. Dr Nielssen diagnosed the applicant Mr Cahill with a depressive illness (adjustment disorder with depressed mood), which seems to have been caused by the applicant's role in the accident and its aftermath. Mr Cahill had a normal and supportive family background; expressed remorse to a number of people; and surrendered his bail at the time of his committal for sentence. I do not seek to summarise all the subjective issues relating to Mr Cahill, as it is not suggested that his Honour failed to deal with any relevant aspect of his subjective circumstances and the sentencing remarks are published. [4]
22. In a similar vein, the learned sentencing judge discussed the subjective circumstances relating to the applicant, Mr Byrne. Like Mr Cahill, Mr Byrne did not give oral evidence at the sentencing proceeding. Also, in a similar way to Mr Cahill, there was an abundance of written material in relation to Mr Byrne's subjective circumstances. [5]
23. The subjective material tendered on behalf of Mr Byrne includes a report by a forensic psychiatrist, Dr Sathish Dayalan dated 30 March 2020. [6] Mr Byrne gave Dr Dayalan his understanding of how the offence occurred, which is consistent with the agreed facts that are before the Court. He denies that the race occurred because he was encouraged so to do by his friends in the car.
24. My Byrne's youth was uneventful and supportive. There is no history of exposure to abuse or dramatic experiences. Nevertheless, Mr Byrne gave an account of binge drinking and that he started to use crystal methamphetamine (ice) from the age of 16. There was daily use of that drug, until Mr Byrne was approximately 17 years of age, although he had not used the drug since the age of 18. Mr Byrne had used MDMA on weekends between the ages of 16 and 18.
25. There is no suggestion of disorder in thought; no delusional or auditory hallucinations; and no suggestion of psychoses. Again, there was clinical presentation, in part reliant upon a report of Dr Shah (also in evidence), of depression and anxiety that had progressively worsened.
26. There is a suggestion that the symptoms presented by Mr Byrne are consistent with adult Attention Deficit Hyperactivity Disorder (ADHD), which, in adults, manifests as mood instability, anxiety symptoms, temper outbursts, inattention, disorganisation, impaired short-term memory and poor impulse control.
27. The learned sentencing judge dealt with the submissions made in relation to the effect of that analysis on the sentence to be imposed and, in particular, what was suggested to be a reduction in moral culpability.
28. The sentencing judge also dealt with the other subjective material that was tendered on behalf of Mr Byrne. Again, that material is included in the reported remarks on sentence to which earlier reference has been made. [7]
29. Although his Honour said he was generally unimpressed with untested hearsay accounts of remorse, he, nevertheless, as with Mr Cahill, accepted that Mr Byrne was remorseful, even though there was no direct evidence from the applicant. His Honour remarked that he was not prepared to give the remorse the same weight as he did in relation to Mr Cahill, partly as a result of the timing of each applicant's application for revocation of bail.
30. The applicant, Mr Byrne, is married and has a child. At the time of sentence, his wife was expecting another child. He was undergoing an apprenticeship at the time of the collision, which had to be discontinued, but found alternative employment. There are a number of references, as there were for Mr Cahill, as to his work ethic.
31. Relying on comments of Haesler SC DCJ, [8] the sentencing judge referred to the effect of the coronavirus epidemic on the onerousness of imprisonment. The comments of Judge Haesler were made during the first NSW lockdown. [9]
32. The Court is aware that the risk of the spread of coronavirus in the prison system is a serious and understandable concern given the nature of the accommodation. The precautions, of which the Court has been made aware, taken by Corrective Services require every inmate to isolate for 14 days on arrival in prison, even where the arrival is from an appearance in Court. There were also, and are now, significant restrictions on social visitation. These matters were relied upon by the applicant in these proceedings as factors rendering incarceration more onerous.
33. They undoubtedly do make the conditions of incarceration more onerous. Whether such conditions are more onerous than a Stage 4 lockdown, or, for that matter, a Stage 3 lockdown, may be the subject of dispute, but, as in the community lockdown, prisoners are denied social visitation.
34. Nevertheless, given the date in May 2020, when his Honour delivered the remarks on sentence in these proceedings, a reference to the COVID-19 restrictions in prison was both appropriate and commendable. Notwithstanding that reference and notwithstanding his Honour's acceptance of the comments of Haesler SC DCJ, his Honour took the view that neither of the two offenders would be eligible for consideration of early parole on account of that factor.
35. Then his Honour dealt with the impact, if any, of the bail conditions that were imposed upon each of the offenders, which, it was submitted, were onerous and should be a factor which entitled each of them to some backdating of the sentence to be imposed. His Honour took the view that the time on bail should be credited to some degree, notwithstanding the opposition by the Crown, and determined that there should be a three-month allowance for each offender in that regard.
36. Then his Honour was asked to deal with, and did deal with, other cases in which offenders have been sentenced to imprisonment for manslaughter arising from motor vehicle accidents. His Honour took the view that the most comparable decision was Borkowski, [10] which he considered more serious as a consequence of the involvement of three vehicles, as distinct from two, and extracted a passage. [11]
37. This Court, in Borkowski, was dealing with a Crown appeal, to which, at that time, even greater constraints applied, including the notion of double jeopardy, but the judgment nevertheless makes clear that the very least sentence that could have been imposed was one of a head sentence of 12 years' imprisonment and, were it not a matter being dealt with on appeal, would have been more severe. Other sentences imposed for manslaughter and some for culpable driving were discussed by the learned sentencing judge.
38. Lastly, his Honour referred to the purposes of sentencing. He did so thoroughly and unexceptionably. In applying those purposes, his Honour determined that each of the applicants was entitled to a finding of special circumstances. This was based on their ages; the fact that this is the first time each of them will spend in custody; and the necessity for each of them to spend an extended period of supervision to ensure the proper and appropriate reintegration into the community. [12] He also referred to Mr Byrne's need for appropriate treatment for his ADHD.
39. Notwithstanding that counsel for each of the applicants submitted that each respective client was less morally culpable than the other, his Honour determined that they should each receive the same sentence [13] and that the starting point for each of the sentences should be 14 years' imprisonment, from which 25% should be deducted for the utilitarian value of the plea of guilty, resulting in a head sentence of 10 years and 6 months. Each of the applicants, as already stated, had imposed upon him a non-parole period of 7 years, which is exactly two thirds of the head sentence.

Submissions

1. As one would expect and as is appropriate, the appellants in oral submissions divided between themselves the different issues raised on appeal. Each continued to rely upon his written submissions.
2. Those submissions relied upon the facts and subjective circumstances, which have been summarised adequately by reference to the remarks on sentence of the learned sentencing judge. Each also relied upon the youth of each applicant and the effect each of them said that should have in ameliorating the sentence to be imposed.
3. Further, Mr Byrne relied upon his diagnosis of adult ADHD and the effect of that disorder to submit for a greater amelioration of the severity of the sentence. The submission was that there was a causal connection between the diagnosis and the offending of Mr Byrne.
4. Otherwise each of the applicants relied upon comparative sentences for manslaughter, arising from negligence of a person driving a motor vehicle, and submitted that, when compared to the comparators, the sentence imposed by the sentencing judge was manifestly excessive. Those comparisons will be dealt with later in these reasons for judgment.
5. No issue was taken by the applicants with the assessment of the sentencing judge that the offending conduct was "above mid-range" in objective seriousness.
6. Nevertheless, the applicants submitted that there were no other indicators of increased objective seriousness that many of the comparable cases included. Thus, in the case of the applicants, the circumstances did not include: unlicensed driving; ignoring warnings; drug or alcohol use; prolonged periods of dangerous driving; or police pursuits.
7. Further, each of them had a strong subjective case and neither was likely to reoffend in the future. These factors were, it was submitted, confirmation that the sentence, in all the circumstances, was manifestly excessive.
8. While, in the case of the applicant, Mr Byrne, reliance was placed upon the adult ADHD, in the case of the applicant, Mr Cahill, reliance was placed upon the lack of any criminal record. Mr Byrne, it should be noted and as previously stated in these reasons, had two driving offences on his record.
9. Ultimately, the applicants submitted that, while the offending was above the mid-range in objective seriousness, it was not in the high range. When coupled with the subjective cases for each of them, on account of youth and the other matters raised, the sentence was one more appropriately imposed upon an offender with high-range objective seriousness.
10. The Crown submits that neither sentence is either unreasonable or plainly unjust. Essentially, the Crown relies upon the following circumstances: 1. The maximum penalty for manslaughter is 25 years. Whilst neither applicant was under the influence of alcohol or drugs and the dangerous driving was not for a prolonged period, the circumstances of the street race resulted in a very serious example of vehicular manslaughter, occurring in a built-up area; 2. While there were favourable subjective findings for each of the applicants, general deterrence still has application, particularly in relation to negligence arising from the use of a motor vehicle amongst young people, and the sentence would need to reflect all the purposes of punishment, including denunciation; 3. In relation to the comparable cases, the Crown submitted that only the judgment in Borkowski involves a street race scenario. Further, in the judgment of this Court in Borkowski, the only reason the appeal was dealt with in that way was as a result of the residual and/or other discretion available in a Crown appeal. The Court there noted that the 12 year sentence imposed was "the very least" sentence that could have been imposed in the circumstances; and 4. The applicants had the benefit of the finding of special circumstances and a significant reduction in the non-parole period applicable to each of them.
11. The submissions of the Crown differed slightly as between the applicant, Mr Byrne and the applicant, Mr Cahill, but essentially the submissions were in or to the same effect. The sentencing judge, in the submission of the Crown, examined the issues of parity and the relative subjective and objective circumstances of each applicant and deliberately and rationally imposed the same sentence on each in order to reflect properly that which his Honour considered was appropriate parity. No ground of appeal raises disparity and the applicants should be treated in the same way.

Consideration

1. The ground of appeal is that the sentences imposed upon each of the applicants is manifestly excessive. In order for this Court to intervene in a sentence imposed by a sentencing judge, the applicant on appeal is required to meet the constraints applicable to an appeal from an exercise of discretion.
2. In order to interfere with the imposition of a sentence, this Court must be satisfied that the sentence involves: acting on a wrong principle; allowing extraneous or irrelevant matters to be used in determining the sentence; a mistake of fact; or the sentencing judge failing to take into account a material consideration. [14]
3. As the High Court made clear in House, the Court may also intervene in circumstances where there is manifest error, which is disclosed when the outcome of the exercise of the sentencing discretion is "unreasonable" or "plainly unjust". [15] Where the sentence imposed is "unreasonable" or "plainly unjust", the Court, on appeal, draws the inference that there has been a failure properly to exercise the discretion conferred on the sentencing judge.
4. The sometimes very difficult task imposed upon the sentencing judge requires the judicial officer to evaluate the facts and circumstances relating to the offence and to the offender and synthesise those facts and circumstances in order to determine a sentence that is appropriate, in all the circumstances. The process has been referred to as intuitive or instinctive synthesis. [16]
5. The discretion in the sentencing process and the inability to be mathematically precise results in there being no single correct sentence. Rather, there will usually be a range of sentences that reasonably fit all the circumstances of the offence and the offender.
6. Reasonable judicial officers may arrive at a different result, within that range. Each of those results, within range, is correct and would not be amenable to intervention from this Court on the basis of manifest error.
7. The circumstance, if it were to exist, that a judge on appeal would have imposed a different sentence than the sentencing judge, does not result in the conclusion that the sentencing judge has arrived at a sentence which is unreasonable or plainly unjust. Nor does it imply that the sentencing judge has arrived at a result by a process which involves error of the kind to which the High Court referred in House.
8. Given the reliance by the applicants in these appeals on the pattern of past sentencing, it is necessary also to note that there is a distinction between the range of sentences that may be available, on the one hand, and, on the other hand, the pattern of past sentencing.
9. The pattern of past sentencing establishes no more than the history of sentencing in the past. It does not mark out the bounds of the permissible discretion reposed in a sentencing judge. [17] In Barbaro, supra, the High Court said: "[41] As the plurality pointed out in Hili v The Queen, in seeking consistency sentencing judges must have regard to what has been done in other cases. Those other cases may well establish a range of sentences which have been imposed. But that history does not establish that the sentences which have been imposed mark the outer bounds of the permissible discretion. The history stands as a yardstick against which to examine a proposed sentence. What is important is the unifying principles which those sentences both reveal and reflect." (Footnotes omitted.)
10. The applicants rely upon their youth as a factor to be taken into account in determining a sentence that is less severe than the one imposed upon them. The criminal law is based upon the proposition that an individual has free will. Thus, a person is able to choose to obey the law or may choose not to obey the law. When the legislature prohibits certain conduct, it is, generally, a matter for the individual to choose to obey that prohibition.
11. The criminal law also makes allowance for those circumstances which constrain the exercise of free will. Thus, the criminal law provides for defences, which in some instances are required to be negatived by the Crown, relating to self-defence; substantial impairment of the mind; automatism; and other features that impact upon the individual's ordinary exercise of free will.
12. In the case of youth, the law ameliorates the harshest punishment and takes account of the immaturity and less well-developed executive functioning that occurs in a physically underdeveloped mind. In BP v R, [18] Hodgson JA said: "[3] The relevance of the youth of an offender to sentencing has been extensively discussed in many cases, including KT v R [2008] NSWCCA 51; (2008) 182 A Crim R 571 (referred to by Johnson J) and cases referred to in that case. I accept the principles stated in KT at [22] - [26] (quoted by Johnson J at par [74] of his judgment). However, I wish to make three points concerning these principles. [4] First, statements that, in relation to young offenders, principles of retribution may be of less significance and considerations of rehabilitation may be of more significance, may tend to obscure the point that even in relation to retribution the youth of an offender may be a mitigating circumstance. In my understanding, considerations of retribution direct attention to what the offender deserves; and in my opinion, where emotional immaturity or a young person's less-than-fully-developed capacity to control impulsive behaviour contributes to the offending, this may be seen as mitigating culpability and thus as reducing what is suggested by considerations of retribution: see TM v R [2008] NSWCCA 158 at [33] - [36]. [5] Second, while I agree with the statements in KT at [26] that the weight to be given to considerations relevant to a person's youth diminishes the closer the offender approaches the age of maturity, and that a 'child offender' of almost 18 years cannot expect to be treated substantially differently from an offender who is just over 18 years of age, it does not follow that the age of maturity is 18 (albeit that for certain purposes the law does draw a line there: Children (Criminal Proceedings) Act 1987). In my understanding, emotional maturity and impulse control develop progressively during adolescence and early adulthood, and may not be fully developed until the early to mid twenties: see R v Slade [2005] 2 NZLR 526 at [43], quoted by Kirby J in R v Elliott [2006] NSWCCA 305; (2006) 68 NSWLR 1 at 27 [127]. As shown by R v Hearne [2001] NSWCCA 37; (2001) 124 A Crim R 451, youth may be a material factor in sentencing even a 19 year old for a most serious crime. [6] Third, I do not think courts should be over-ready to discount the relevance of an offender's youth on the basis that the offender has engaged in adult behaviour or acted as an adult. In the present case, the offence is a very serious one; but it did not involve significant planning or reflection, or any other indicia of mature decision-making. The applicant was 16 years old, and in my opinion the circumstances of the offence suggest rather that emotional immaturity and less-than-fully-developed capacity to control impulses were likely to be contributing factors." [19]
13. As a member of the Court in BP, I agreed with the foregoing comments and adhere to that view. I added to the foregoing in the following passage: "[108] I confirm my comments in MJ v R, CPD v R [2010] NSWCCA 52, referring, in part, to R v LNT [2005] NSWCCA 307. In MJ v R, CPD v R, supra, I said: '[70] Further to the foregoing, I confirm the comments made by me in R v LNT [2005] NSWCCA 307 (with whom Simpson and Johnson JJ agreed) as to the principles to be adopted on the sentencing of young offenders. The Children (Criminal Proceedings) Act 1987 applied to minors and establishes a different regime than for adults. Nevertheless, a person who is 17½ years of age cannot be expected to be treated significantly differently from his co-offender who has turned 18. This does not mean that youth, who are not minors, are not entitled to an assessment of sentence, that takes into account their youth and immaturity: see LNT, supra, at [32] and following, and the cases cited therein. [71] Chronological age of a young offender is not solely the determining factor in deciding how much weight should be attributed to general deterrence, as distinct from the other factors, in assessing an appropriate sentence. Regard must be had to the mental state and circumstances of the offender at the time of the offending: R v AN [2005] NSWCCA 239, per Howie J, with whom James J and I agreed, at [57]. Likewise, the violence of the offence, of itself, does not necessarily establish that the juvenile is acting 'as an adult'. In sentencing, juveniles (including minors), who act as an adult would, the function of the courts requires deterrence and retribution and they remain, or become, more significant elements in sentencing the youth: R v AN, supra, at [53], citing R v Bus (Court of Criminal Appeal, 3 November 1995, unreported). The test, in those circumstances, is whether the youth has conducted himself or herself in a way that an adult would, and that requires an assessment of the maturity and conduct, not only the degree of violence and the gravity of the offence.'" [20]
14. The foregoing principles are neither controversial nor novel. There is significant authority reiterating the principles, albeit differently expressed.
15. The sentencing judge appropriately took into account the guideline judgment in Whyte v R. [21] The five member court in Whyte, setting, as it did, a guideline judgment, was dealing with offences under s 52A of the Crimes Act; not manslaughter. Nevertheless the typical offender or offence described in Whyte was a young offender; of good character with no or limited prior conviction; death or permanent injury to a single person; where the victim was a stranger; no or limited injury to the driver or the driver's intimates; genuine remorse; and a plea of guilty of limited utilitarian value.
16. The offence with which the Court was there dealing, as already stated, was an offence under s 52A of the Crimes Act, being dangerous driving occasioning death ("culpable driving"), which carries a maximum penalty of 10 years' imprisonment, or, if it be the aggravated offence, 14 years' imprisonment. Where the driving does not occasion death, but occasions grievous bodily harm, the maximum penalties are, respectively, 7 years and 11 years. Manslaughter carries a maximum penalty of 25 years' imprisonment.
17. More importantly, the Court in providing the guideline judgment, made it clear that the guideline judgment applied in circumstances where the offender's moral culpability is high, within the range of sentences for culpable driving and recommended a full-time custodial head sentence of not less than three years, where death occurs. The guideline judgment for culpable driving is a guide or a check; it is not intended to be a starting point from which sentencing judges add or subtract factors.
18. The relative seriousness with which the legislature has treated manslaughter, as distinct from culpable driving, is reflected in the maximum sentences. Manslaughter is, necessarily, an unlawful homicide which is a significantly more serious offence than the offence of culpable driving causing death.
19. Indeed, one of the reasons that the culpable driving offence was inserted into the Crimes Act was because juries were reluctant to convict for manslaughter merely on the basis of driving at a speed or in a manner that was dangerous. Manslaughter is a far more serious offence, carrying with it far more serious potential punishment.
20. While the principles that apply to issues of culpability and youth, discussed by Hodgson JA in BP, above, continue to apply, they must be understood in context. Where, as in the case of driving of this kind, the Court is dealing with an offence that is perceived to be particularly prevalent amongst young persons who may see themselves as "bullet proof", [22] general deterrence for such a group becomes a more significant factor. The two issues may well balance each other out in individual cases. In other cases, a degree of leniency may be shown; and in a third class of cases the need for general deterrence becomes such that the leniency afforded on the basis of youth and immaturity is substantially outweighed.
21. To suggest, as this Court has on a number of occasions, that youth cannot operate as a mitigating factor when the offender commits grave driving offences, [23] is not to dispense with the principles that apply to youth. Rather it involves balancing those principles against the greater need and greater significance of general deterrence to deter persons in that class from undertaking such conduct by an understanding of the dire consequences. [24]
22. I turn to the comparison of sentences proposed by the applicants. The following table sets out a set of comparable cases: Case Brief Summary Held Original sentence Sentence on appeal R v Cramp (1999) 110 A Crim R 198; [1999] NSWCCA 324 Conviction for manslaughter after trial involving dangerous driving over a three hour period. Appeal dismissed; not manifestly excessive 9 years and 4 months, NPP of 7 years -- R v Falzon (2000) 33 MVR 128; [2000] NSWCCA 530 Offender involved in police pursuit in a stolen vehicle in crowded retail streets, travelling up to 160km/h. Killed a bystander (child) and seriously injured another. Appeal allowed; sentence reduced 12 years, NPP of 9 years 10 years, NPP of 7 years 6 months R v Cameron (2005) 157 A Crim R 70; [2005] NSWCCA 359 Appeal against sentence imposed after late pleas of guilty to three counts of vehicular manslaughter and one count of aggravated dangerous driving causing death. Was driving with alcohol, cannabis and methamphetamines in his system. Appeal allowed 7 years, NPP of 3 years 6 years, NPP of 2 years R v Borkowski (2009) 195 A Crim R 1; [2009] NSWCCA 102 Crown appeal concerning street race with two other vehicles, collided with another car killing two elderly occupants. Offender had a significant criminal record and was under the effects of alcohol, cannabis and methamphetamines. Also had a suspended licence. Appeal dismissed 9 years, NPP of 6 years -- R v Woodbridge [2010] NSWCCA 185 Crown appeal concerning convicted of one count of manslaughter and one of aggravated dangerous driving causing GBH. Was driving under effect of alcohol. Appeal dismissed 7 years, NPP of 4 years -- Spark v R [2012] NSWCCA 140 The offender was unlicensed and under the influence of methamphetamine and alcohol. Drove at speeds up to 186 kph, colliding head on and killing two occupants of another car. Appeal dismissed 12 years and 6 months, with a NPP of 8 years --

1. To the foregoing table should be added the comment that the parties also relied upon the judgment in the District Court in R v Abdulrahman [25] and the Crown relied upon the very recent, at the time that the appeal proceedings were heard, outcome in DPP v Abdulrahman [26] which was a Crown appeal. On appeal, Mr Abdulrahman was sentenced to an aggregate sentence of imprisonment for 10 years and 2 months, with a non-parole period of 6 years and 8 months.
2. As is made clear by the High Court, [27] applying the comments of Simpson J, [28] the history of sentencing may establish a range of sentences that have in fact been imposed, but it does not establish that the range is the correct range or that the outer limits of the historical sentencing pattern are the outer limits of the range of sentences that is available for that offence and that offender.
3. While the pattern of past sentencing is of considerable significance and results from the application of the accumulated experience and wisdom of first instance judges, it is to be used as a check or yardstick against which to examine a proposed sentence, and not as setting the bounds or ambit of a sentence to be imposed. Consistency in sentencing is achieved by a consistency in the application of the relevant legal principles; not by numerical equivalence. [29]
4. In Borkowski, [30] the Court was concerned with a Crown appeal against the inadequacy of the sentence imposed upon the respondent. The factual circumstances on which the sentencing discretion was exercised in Borkowski are, of the cases to which the applicants referred, the most comparable. As in the present case, the facts in Borkowski related to a street race. In Borkowski, there were three vehicles involved.
5. Each of the other allegedly comparable cases involved single vehicle accidents, albeit in various circumstances showing different degrees of criminal culpability.
6. It should be restated that there is no hierarchy in manslaughter that arises from a particular kind of manslaughter. Thus, manslaughter arising from excessive self-defence is not necessarily more or less culpable than manslaughter arising from substantial impairment of the mind. Nor does any other class of manslaughter necessarily involve greater criminal culpability than an unlawful and dangerous act or gross criminal negligence, such as manslaughter by motor vehicle accident.
7. Secondly, the facts and circumstances that may give rise to manslaughter are so varied, even within a particular class of manslaughter, that it is difficult to derive appropriate comparisons from the pattern of past sentencing. Nevertheless, as with any sentencing, the pattern of past sentencing can be a yardstick or check against which a proposed sentence can be measured.
8. As was made clear by Howie J, [31] the seriousness of the motor-vehicle manslaughter was increased as a result of a number of vehicles involved. In Borkowski there were three vehicles involved. In the matter now before the Court there were two vehicles involved.
9. The number of vehicles involved in the offence increases the seriousness of the offence, because it increases the level of danger to the safety of the community. And the involvement of the two applicants in a joint criminal enterprise to involve themselves in this motor race significantly increases the potential danger to others in the vicinity as compared to the dangerous driving of a single vehicle.
10. Submissions were also made about the duration of the driving. As has been indicated in the statement of the facts, the driving included, at one stage, driving the vehicle on the wrong side of the road. The area in which the driving occurred was, almost by definition, between that TAFE College at which the applicants were studying and the cafe which was the intended destination.
11. The reason that the length of time or distance travelled is usually a matter affecting moral culpability or objective seriousness is that it impacts upon the risk to the community and the safety of others. However, 500 m in a built-up area of a city may be far more dangerous and a far greater risk to the safety of others than 5 km in an area where it is unlikely, if not impossible, to come into contact with other road users or pedestrians.
12. This offence took place in a built-up area in the middle of a regional city. There were passengers in the car and the applicants were driving to a cafe in an area where it was most likely there would be other road users and pedestrians. There was a school on the corner from which the applicants commenced their race. Given that more than one vehicle was involved, even if there were no other road users with whom to collide, the conduct involved a real risk that the applicants would collide with each other.
13. The speed that was being travelled was also an indicator of seriousness. One of the vehicles was at one stage travelling at 143 km/h; the other vehicle was, at one stage, travelling no less than 100 km/h. The speed limit in the area was 50 km/h. In and of itself, this involves significant danger and a level of seriousness that renders the conduct of the applicants as displaying a level of moral culpability beyond that displayed in most motor vehicle accidents.
14. It must be accepted that the conduct of the applicants was opportunistic. There was no pre-planned street race.
15. Nevertheless, even though opportunistic, the conduct occurred in circumstances where each of the applicants engaged, quite deliberately, in a reckless disregard for the safety of others, of whom there were likely to be many, who were in the vicinity.
16. In my view, this is a most serious example of the kind of offence involved. It is a set of circumstances which calls out for significant general deterrence and, at least in relation to one of the applicants, some significant specific deterrence.
17. Nevertheless, measuring the subjective aspects of each of their circumstances and the objective circumstances of the offending, the determination that each should receive the same sentence is a rational one, with which no party, on appeal, takes issue.
18. As has already been stated, in order for this Court to intervene in the exercise of the sentencing discretion, it is insufficient for the Court to form the view that it would have imposed a lesser sentence. For that matter, on appeal, with three judges, there may be three different answers to that question. That which is required of the applicants is for them to satisfy the Court that the sentence imposed is manifestly excessive, namely, plainly unjust or unreasonable.
19. For my own part, I may have started at the same level as that imposed in Borkowski, namely 12 years, but I am not satisfied that the starting point for his Honour's sentence, being a head sentence of 14 years' imprisonment, is unreasonable or plainly unjust. It is on the heavier side of the range available, but it is within range and it was available.
20. Moreover, his Honour has, in the finding of special circumstances and the determination of the non-parole period, ameliorated the heaviness that might otherwise be associated with a head sentence of that magnitude. This means that, subject to appropriate behaviour by each of the applicants, the time they will serve should be 7 years' imprisonment and the time on parole, during which they will be under supervision, a further term of 3 years and 6 months.
21. Unlike the circumstances with which the Court dealt in DPP v Abdulrahman, there are no Bugmy factors to be considered in relation to the sentence.
22. Overall, I do not consider that the sentence imposed by the learned sentencing judge was manifestly excessive. It was neither unreasonable nor plainly unjust. In those circumstances, in relation to each appeal or application for leave to appeal, I would propose that the Court make the following orders: 1. Leave to appeal be granted; 2. Appeal be dismissed.
23. Button J: I agree with Rothman J, and with Bell P.
24. In my opinion, the sentences imposed were stern, but not manifestly excessive.

Endnotes

1. Remarks on Sentence at [49] and following; Appeal Book p 21.
2. R v Taufahema [2004] NSWCCA 833 (Sully J).
3. Exhibit 1 on Sentence; Appeal Book pp 105-112 for Dr Nielsen's report and 113-115 for Dr Blake's Report.
4. R v Cahill; R v Byrne [2020] NSWDC 224.
5. Exhibit 2 on sentence; Appeal Book p 157 and following.
6. Exhibit 2 on sentence; Appeal Book p 159 and following.
7. R v Cahill; R v Byrne [2020] NSWDC 224.
8. R v Despotovski [2020] NSWDC 110 at [35]-[39].
9. The judgment was delivered on 15 April 2020.
10. R v Borkowski [2009] NSWCCA 102.
11. Borkowski, supra at [65]-[66] (Howie J, with whom McClellan CJ at CL and Simpson J agreed).
12. Remarks on sentence at [189]; Appeal Book p 55.
13. Remarks on sentence at [190]; Appeal Book p 55.
14. House v the King (1936) 55 CLR 499 at 505; [1936] HCA 40 (Dixon, Evatt & McTiernan JJ).
15. Ibid.
16. Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25; R v Geddes (1936) 36 SR (NSW) 554.
17. Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2 at [41].
18. BP v R (2010) 201 A Crim R 379; [2010] NSWCCA 159.
19. Ibid at [3]-[6] (Hodgson JA).
20. Ibid at [108]-[108] (Rothman J).
21. Whyte v R (2002) 55 NSWLR 252; [2002] NSWCCA 143.
22. DPP v Neethling (2009) 52 MVR 422; [2009] VSCA 116.
23. SBF v R (2009) 53 MVR 438 at 151; [2009] NSWCCA 231 (Johnson J).
24. TG v R [2010] NSWCCA 28 at [33] (Howie J, with whom McClellan CJ at CL and Harrison J agreed).
25. R v Abdulrahman [2020] NSWDC 731.
26. Director of Public Prosecutions v Abdulrahman [2021] NSWCCA 114.
27. Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45.
28. Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; 243 FLR 28; 205 A Crim R 1; [2010] NSWCCA 194.
29. Hili & Jones, supra at [46] and following.
30. R v Borkowski, supra.
31. R v Borkowski, supra. 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. Decision last updated: 11 August 2021