Conte v R

Court of Criminal Appeal (NSW)|2018-07-06|Before: Payne JA, Button J, Schmidt J

Judgment

PAYNE JA AND BUTTON J: We have enjoyed the considerable benefit of reading the judgment of Schmidt J in draft. We adopt the analysis provided by her Honour of the subjective and objective features of this matter.
It is convenient to set out our own position with regard to the three proposed grounds of appeal.

Ground 1: Manifestly excessive sentence?

Turning to ground 1, we respectfully disagree with Schmidt J that the aggregate head sentence does not go beyond being a very stern sentence (which was available to the discretion of the sentencing judge) to become a sentence that is manifestly excessive (which was not so available). In our opinion, this sentence did indeed go beyond what was open to his Honour. We say that for the following reasons.
First, it must be acknowledged that this offence demonstrated an atrocious abandonment of responsibility by the applicant, in countless ways, which led to two horrific outcomes. That in turn meant that a lengthy period of full-time custody was an inevitable sentencing outcome.
Secondly, there was no error made in the analysis by the sentencing judge of all of the objective and subjective features relevant to the matter. Nor is there any other error of legal principle demonstrated in the remarks on sentence. The only question is whether the sentence is manifestly excessive. And in that regard, appellate intervention is not justified simply because the result arrived at in the court below is markedly different from sentences imposed in other cases. Intervention is only warranted where the difference is such that it may be concluded that there must have been some misapplication of principle, even though where and how is not apparent from the reasons of the sentencing judge, or where the sentence imposed is so far outside the range of sentences available that there must have been error: Obeid v R [2017] NSWCCA 221 (R A Hulme J, Bathurst CJ, Leeming JA, Hamill and N Adams JJ agreeing) at [443].
Thirdly, just as sentencing at first instance is ultimately an exercise in instinctive synthesis, so also does the determination by an intermediate appellate court that a sentence previously imposed is manifestly excessive or manifestly inadequate involve a degree of intuition and evaluative judgment that is not readily amenable to logical steps in an irresistible process of reasoning, or determinative lists of countervailing factors.
Fourthly, there is little point in comparing the aggregate sentence imposed here for two aggravated versions of the relevant offences, and the indicative sentences underpinning it, with aggregate sentences, total sentences, or actual individual sentences imposed for the simple versions of the relevant offences.
Fifthly, there is also little point in analysing statistics of sentences previously imposed by the District Court and this Court for these offences. This is because the aggregate sentence and its underpinning indicative sentences are accepted to be at or near the top of the range of such sentences; in all the circumstances of this case, that is unsurprising.
There is only limited utility in reflecting upon sentencing patterns in this Court, whether they be sentences at first instance countenanced because an appeal fails, or sentences imposed on re-sentence in accordance with Kentwell v The Queen (2014) 252 CLR 601 and Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255. That is not only because all cases turn on their own facts. It is also because, inherently, aggravated dangerous driving causing death or grievous bodily harm will almost always lead to lengthy sentences of full-time custody. Such analysis often does not allow sufficient discrimination, not only between individual or indicative sentences, but also between total sentences (being cumulative or partly cumulative sentencing structures) and also aggregate sentences. Nevertheless, those cases provide some limited assistance. The sentence actually imposed in the present case was the heaviest sentence of those referred to. The relevant authorities were: 1. In Bombardieri v R (2010) 203 A Crim R 89; [2010] NSWCCA 161, the applicant was driving erratically and at extremely high speeds (up to 160km). Because of his high speed and swerving across the highway, he was pursued by police. A fatal collision, caused when a car trying to swerve out of the applicant's way collided with a semi-trailer, occurred during the police chase. The applicant was 20 years of age. He pleaded guilty and received a discount of 16.66%. He was unlicensed at the time of the offence, and had a number of entries on his driving record. The sentencing judge accepted that the applicant was "psychologically disturbed". The sentencing judge imposed a sentence of 10 years imprisonment with a non-parole period of 6 years and 6 months. This was reduced on appeal to 9 years imprisonment with a non-parole period of 5 years and 9 months (meaning that the "undiscounted" starting point of the head sentence on appeal would have been a little over 10 years 9 months). In reducing the sentence on appeal Beazley JA held: "[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, s 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."; 1. In Smith v R [2011] NSWCCA 290, the applicant was driving at between 20 and 40km per hour above the speed limit, drove through a red light, crossed to the incorrect side of the rode, collided with a series of concrete structures and overturned his vehicle into a culvert. The vehicle was destroyed and the applicant's passenger died at the scene. The applicant had a blood alcohol reading of 0.188. The applicant was 30 years of age. He had a substantial criminal history and his driver's licence was disqualified at the time of the accident. The applicant had pleaded guilty at an early stage, and one can infer that the discount granted was 25%. A sentence was imposed of 8 years imprisonment with a 6 year non-parole period (meaning that the inferred starting point of the head sentence was 10 years 8 months). This was reduced on appeal to 7 years with a non-parole period of 5 years and 3 months (meaning that the starting point of the head sentence imposed on appeal was 9 years 4 months). In allowing the appeal, Blanch J noted that the sentence was significantly higher than the guideline judgment of R v Whyte (2002) 55 NSWLR 252, and reduced the sentence to "maintain a consistency of approach"; 2. In R v Wright (2013) 229 A Crim R 245; [2013] NSWCCA 82, which was submitted by the Crown to be the closest comparison to the present case, the applicant was driving in a substantially impaired state and at more than 45km per hour over the speed limit. He had a blood alcohol level of 0.157. The applicant was involved in a collision which killed one passenger, a 16 year old boy and the other, a 14 year old girl, was seriously injured. The applicant was 43 years old at the time of the offence. He had an extensive history of traffic offences, including driving under the influence and driving while disqualified. The offence was correctly described as close to the worst kind of offence. The sentencing judge imposed a sentence of 9 years and 6 months imprisonment with a non-parole period of 5 years and 9 months. The appeal was dismissed on the basis that the sentence was not manifestly excessive. That is to be contrasted with the non-parole period in the present case of 10 years and 6 months. Even taking into account the 25 per cent discount for the pleas of guilty, the comparison with the sentence in Wright supports an assessment that the aggregate sentence imposed in this case was manifestly excessive; 3. In Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255, in this Court a sentence of 8 years and 3 months imprisonment was imposed with a non-parole period of 5 years for aggravated dangerous driving causing death. While negotiating a bend at a speed in excess of 20km/h over the speed limit, the applicant lost control of his vehicle, which collided with a pedestrian on the nature strip. The applicant and his passenger got out of the vehicle and ran away without assisting the victim, who later died as a result of his injuries. The applicant did not know how to drive a manual car. He had smoked methylamphetamine (ice) half an hour before the collision. At the time of the accident, he had not slept or eaten for three to four days. The applicant pleaded guilty. He was aged 24 years at the date of the offence. He had a criminal record, which did not entitle him to leniency. Having regard to the 25 per cent discount afforded in that case the relevant comparison is with a notional sentence for the s 52A offence of 11 years imprisonment with a non-parole period of 6 years and 8 months. Whilst it is true that in the present case the sentencing judge's indicative sentence for the s 52A offence was 11 years, Lehn is nevertheless a case which tends to demonstrate that the sentence imposed here was manifestly excessive. The aggregate sentence imposed on the applicant here was 14 years' imprisonment with a non-parole period of 10 years and 6 months. The notional non-parole period, taking into account the 25 percent discount fixed by this Court in Lehn, was almost 4 years less than that imposed by the sentencing judge in the aggregate sentence here; 4. In R v Shashati [2018] NSWCCA 167, the most recent decision of this Court of which we are aware, this Court on a Crown appeal imposed a sentence of imprisonment of 6 years comprising a non-parole period of 3 years 3 months and a balance of the term of 2 years 9 months for an offence under s 52A. The offender, who was affected by methylamphetamine, was attempting to pass slow moving traffic by going off the road and travelling along the bitumen shoulder, with one wheel on the grass verge at a speed of about 80km/h. The car hit a drainage ditch and a teenage passenger in his car died from injuries sustained in the accident. No discount was applied, because the respondent had gone to trial on the aggravated offence and been found guilty of it. Accepting all of the difficulties involved in comparing the aggregate sentence imposed for two offences with the single notional sentence identified in Shashati, the comparison between the sentence imposed there and the present case strongly argues for the conclusion that the aggregate sentence imposed in this case was manifestly excessive.
To the extent that comparative cases provide any assistance, we believe that, taken as a whole, they confirm our view that the sentence imposed here was manifestly excessive.
Sixthly, as counsel for the applicant accepted at the hearing before us, the only two factors on sentence that were not seriously adverse to his client were his youth and his damaging upbringing. All other factors were unfavourable. In saying that, we accept that the sentencing judge was entitled to reject the statements of remorse of the applicant after he lost the trial.
The first factor is the applicant's youth. The applicant, having been born in December 1994, was almost exactly 20 years of age on the day of the offences, and 22 years and 8 months when he stood for sentence.
The second factor is his detrimental and deprived upbringing. In the remarks on sentence, the sentencing judge encapsulated that as follows: "Both of his parents were drug addicts when he and his siblings were born. His mother's health deteriorated fairly quickly after he was born and his sister had to assume greater responsibilities in his upbringing. Mr Conte's father was also an abuser of illegal drugs. He effectively had no proper role models as he grew up. His sister no doubt did the best she could, but she was not much older than him. He was a troubled child at school - even in primary school he was in difficulties. There was apparently some bullying and his own behaviour deteriorated such that through Year 7 he was moved to a behavioural school at Glenfield. But even then, that was not sufficient and he left school at the end of Year 9. He had no meaningful long-term employment following his departure from school and there have been no further educational achievements."
To delve more deeply into that encapsulation, it was based very largely on a letter addressed to his Honour from the elder sister of the applicant. That was an impressive and insightful document. It spoke of the fact that their mother was unable to raise her three children effectively, due to substance abuse and issues with her physical health. The authorities were alerted, but no one intervened. The sister, then aged seven, took over the responsibility of caring for her younger brothers, the applicant then being aged three years. Their mother, who had already been a user of prohibited drugs before the birth of the first of her children, developed a problem with alcohol before the applicant was born.
Furthermore, their mother developed epilepsy after what the sister of the applicant described as "a particularly vicious attack" (the perpetrator of which is not entirely clear).
The children's father is also described as a person who had a problem with substances, who worked merely to feed that problem and who had little interest in his role as a parent.
The applicant's sister spoke of the two of them "[b]eing raised and completely exposed to a toxic environment full of daily substance and alcohol abuse, violence and a lack of a positive role model". Despite that lack of guidance and discipline, she did her best to ensure that the applicant attended school, but it was a constant struggle for him. She described how the placement of the applicant at the age of 13 in a "behavioural school" did not help, and that he left school at 14 to commence work with his father, surely with negative consequences. That was the conclusion of the upbringing of the applicant.
In short, the applicant, a young man just two years past the age at which the criminal justice system regards one as an adult, had, by the time of the offences, developed a longstanding dependence upon prohibited drugs, no doubt largely as a consequence of his upbringing, and the psychological damage it inflicted upon him. And it was the effect of those drugs that played a central role in the offences: his gross intoxication was the aggravating feature of each of the two major counts; he claimed not to have slept for days, no doubt as a result of the ingestion of amphetamines; and that lack of sleep, combined with the direct effects of the drugs, surely played a role in his grossly dangerous mode of driving and its catastrophic consequences.
Ultimately, the test to be applied when considering whether a sentence is manifestly excessive or manifestly inadequate is whether the sentencing outcome is simply and unaccountably too severe or too lenient, having regard to all relevant objective and subjective features in each case.
Applying that practical test to this outcome, we respectfully cannot accept that this aggregate sentence is appropriately reflective of the applicant's youth, his deprived upbringing, the fact that all offences arise from one incident, and the fact that the maximum penalty for aggravated dangerous driving causing death is imprisonment for 14 years, as opposed to the maximum penalty for manslaughter of imprisonment for 25 years.
In short, the aggregate sentence is manifestly excessive. We would regard it as perhaps appropriate for a person convicted of manslaughter; or an offender of mature years; or a person who did not suffer a deplorable upbringing through no fault of his or her own. In our respectful opinion, the sentence imposed goes beyond what was available to the sentencing judge in this case.

Re-sentence

Turning to the question of re-sentence, as we have said, a very substantial head sentence and non-parole period are both inevitable in this matter.
Secondly, the evidence contingently relied upon by the Crown regarding events that have occurred since the applicant was sentenced show that he has behaved poorly in prison, and that his dependence upon prohibited drugs is (as one would expect) by no means resolved.
Thirdly, although we do not consider that the sentencing judge was compelled to find special circumstances, on re-sentence we are not constrained by that approach. By the time the applicant is eligible for release on parole, he will be approaching his 30s. It is quite possible that he will continue to be burdened by a problem with prohibited drugs. It will also be an enormous readjustment when he returns to the community. Bearing in mind the aggregate head sentence that we propose, it is appropriate that the parole period that would otherwise be imposed pursuant to the "statutory ratio" be extended, though not, of course, to an extent that renders the minimum period of incarceration inappropriate.
Fourthly, on re-sentence we would replicate the indicative head sentence for the aggravated dangerous driving causing grievous bodily harm of imprisonment for six years, and the indicative head sentence for the offence of failing to stop of imprisonment for four years.
We would also maintain the two sentences pertaining to the matters on the certificates of a fixed term of 12 months, each to commence on 24 May 2015; because those sentences would not be quashed, they would not require re-imposition.
We would provide, however, an indicative head sentence for the aggravated dangerous driving causing death of imprisonment for nine years.
Finally, on re-sentence we would impose an aggregate head sentence of imprisonment for 12 years, with an aggregate non-parole period of eight years, each to commence on the same date set by the sentencing judge, 24 May 2015.

Orders

In accordance with the above, we would make the following orders: (1) Leave to appeal granted. (2) Appeal against sentence allowed. (3) The aggregate head sentence and aggregate non-parole period imposed by Judge Colefax SC on 25 August 2017 are quashed. (4) In substitution, the applicant is sentenced to an aggregate head sentence of imprisonment for 12 years, with an aggregate non-parole period of eight years, each to commence on 24 May 2015, and the aggregate head sentence to expire on 23 May 2027. (5) The first date upon which the applicant will be eligible for release to parole is 23 May 2023.
SCHMIDT J: Mr Conte seeks leave to appeal the aggregate sentence of 14 years' imprisonment with a non-parole period of 10 years and 6 months imposed upon him by Colefax DCJ in August 2017, after a jury found him guilty of offences of:

aggravated dangerous driving occasioning death under s 52A(2) of the Crimes Act 1900 (NSW),
aggravated dangerous driving occasioning grievous bodily harm under s 52A(4) and
failing to stop and assist after a vehicle impact causing grievous bodily harm under s 52AB(1).

The case advanced for Mr Conte was that Cole fax DCJ erred in what was a difficult and complex sentencing task, given his very high moral culpability and the ramifications of his offending for his victims. The grounds of appeal Mr Conte pressed were: "GROUND 1 That in all the circumstances the aggregate sentence imposed upon the Applicant was manifestly excessive both as to the head sentence and non-parole period. GROUND 2 That the indicative sentences imposed upon the Applicant by reference to whether the offences were above or below the mid-range was erroneous and thereby precipitated error in the aggregate sentence and rendered that sentence and non-parole period manifestly excessive. GROUND 3 The Court erred by declining to find special circumstances."

The sentencing judgment

Colefax DCJ accepted that the evidence of the Crown witnesses established beyond reasonable doubt how they had observed Mr Conte driving a stolen Toyota Landcruiser on 21 December 2014, before he collided with a Toyota Yaris being driven by Mr Alegre at about 8.45 pm, in an intersection which he had entered without stopping, against a red light. Mr Conte who was then disqualified, was driving at about 37 kph when he struck the Yaris at an angle of about 90 degrees. Mr Alegre was seriously injured and his passenger, his wife Mrs Alegre, died at the scene, holding her husband's hand.
Before the collision, at about 8.40 pm Mr Conte overtook a vehicle being driven by Mr Hall, at a place where the road made a sharp right hand turn around a bend. There was a solid white line on the road where Mr Hall also saw the Landcruiser attempt to overtake another vehicle, increasing its speed because of oncoming traffic and swerving and momentarily losing control, whilst returning to the correct lane, with Mr Hall having to slow down, to allow the Landcruiser to return to the correct side of the road. Mr Hall later passed the Landcruiser when it was stopped at a red light. He then saw that Mr Conte was the only occupant.
Mr Hoy saw the Landcruiser a little later, approaching from behind, while he was stopped at a red light. He watched it drive through that red light at a speed which he estimated to be between 80 and 100 kph, then overtaking other vehicles, using the left hand shoulder or breakdown lane, until he lost sight of the vehicle.
Mr Tinker and Ms Bradford were driving in the other direction and observed that the Landcruiser did not have its lights on when it swerved around two other vehicles, before entering the intersection against the red light, where it collided with Mr Alegre's Yaris, without either slowing or the brakes being applied. They saw a young man fleeing from the car.
Mr Singh was following the Landcruiser and also observed that it did not have its lights on. He flicked his lights to alert the driver to the absence of headlights and then saw the Landcruiser enter the intersection against the red lights and collide with the Yaris. He also observed that Mr Conte was the only person in the vehicle.
The witnesses described the incident to have involved the most reckless form of driving imaginable. His Honour concluded that Mr Conte drove the Landcruiser in a highly dangerous and reckless fashion, causing the death of one person and serious injury to another.
Mr Conte was apprehended by police shortly after the collision cowering in a backyard, covered in blood. It was established that he was then under the influence of ice and cannabis; that he had been on ice for some days and that he had not slept for days,
Colefax DCJ concluded that the objective seriousness of the aggravated dangerous driving causing death offence fell towards the upper end of seriousness; that the aggravated dangerous driving causing grievous bodily harm slightly over the mid-range and the failing to stop offence, slightly below the mid-range.
His Honour noted the moving victim impact statements received from members of the Alegre family and the consequences of the injuries Mr Alegre had suffered. They were blunt chest trauma; bruising and fracture to the ribs; fractures of the spine upper and lower lung; contusions and multiple abrasions; and devastating psychological damage. Mr Alegre was off work for 11 months before being able to return to light duties, but the security of his employment was at risk because he was unable to perform his previous roles. That had resulted in substantial financial consequences for him and his family.
Mr Conte was aged 20 at the time of his offences. Colefax DCJ noted that his subjective circumstances included being the child of drug addicts when he and his siblings were born and growing up without proper role models. He was a troubled child even in primary school, the victim of bullying and his own behaviour resulted in his move to a behavioural school in year 7 and departing school in year 9.
Mr Conte had entered a relationship in 2009 which had produced a child in 2012, but the relationship came to an end in 2014. His account to the psychiatrist who examined him, Dr Furst, was that the separation had resulted in an increase of his ice and cannabis consumption, up until the time of his offences.
There was also evidence that Mr Conte's former partner and his father had obtained domestic violence orders against him and he also had a history of prior convictions, including for dangerous driving involving a police pursuit, where he had also ran a red light. Colefax DCJ noted that he had received a surprisingly lenient sentence for that offence, but there had been no Crown appeal.
Colefax DCJ did not accept that the evidence established that Mr Conte had any remorse for his offending, despite having observed him being moved during the receipt of the victim impact statements.
His Honour noted that he had defended the case, but in a letter written to the Court on the day of the sentence hearing, had written that he had come to accept that he was the driver, having listened to the evidence led at his trial. In a March 2017 presentence report, however, there had been no acceptance of such responsibility, nor had that been noted in the August 2017 report of the psychiatrist. His Honour also noted that in the presentence report it was recounted that Mr Conte claimed two days before the sentence hearing to have little recollection of the events and that he surmised that he had fled the scene, due to a combination of shock, fear and adrenaline. There was then no acceptancy of responsibility.
Colefax DCJ concluded that Mr Conte's acceptance of responsibility on the day of the sentence hearing, when he did not give evidence of such acceptance, had to result in his recent expression of remorse being regarded with scepticism.
His Honour noted that Mr Conte was on bail for other serious offending when he committed these offences. In the presentence report his risk of reoffending was assessed to be medium to high, with which Dr Furst agreed and his conduct while in custody had involved 26 misconduct charges, all related to drugs or violence. He had also spent time in segregation.
In the result, despite his relative youth and this being his first time in custody, Colefax DCJ concluded that Mr Conte's prospects of rehabilitation were not good and would not be enhanced by a longer period on parole. Accordingly, there was no finding of special circumstances, given the lengthy parole period which resulted from application of the statutory regime.
His Honour also concluded that deterrence had to feature in Mr Conte's sentence, including in order to deter others from this kind of conduct, which had resulted in catastrophic consequences for innocent people.
The indicative sentences Colefax DCJ gave were:

s 52A(2) aggravated dangerous driving occasioning death - 11years, 6 months
s 52A(4) aggravated dangerous driving occasioning grievous bodily harm - 6 years
s 52AB(1) failing to stop and assist - 4 years.

Colefax DCJ also nominated sentences in respect of two offences of driving while disqualified and driving without consent of the owner contained in certificates issued under s 166(1)(b) of the Criminal Procedure Act 1986 (NSW), of a fixed term of 12 months imprisonment each, commencing 24 May 2015.
The aggregate sentence imposed after partial accumulation of the ss 52A(2) and 52A(4) offences and the total concurrency of the s 52AB(1) offence was 14 years with a non-parole period of 10 years, 6 months and a balance of term of 3 years, 6 months, commencing 24 May 2015.
The commencement of the sentence was backdated two years and three months to take into account both time Mr Conte had already spent in custody and quasi custody while he had been on bail under stringent conditions.

Ground 2 - the indicative sentences imposed by reference to range

It is convenient to commence with this ground. Relying on Sivell v R [2009] NSWCCA 286 at [32], it was Mr Conte's case that Colefax DCJ had erred in finding: "In terms of making an assessment of the objective seriousness of each of the offences for offences of their kind, in my view the first offence of aggravated dangerous driving occasioning death is towards the upper end of the scale. The offence of aggravated dangerous driving causing grievous bodily harm is slightly over the mid-range. The offence of failing to stop is slightly below a mid-range offence for an offence of its kind."
These observations were submitted to reveal error, because no standard non-parole period is fixed for the s 52A(4) or s 52AB offences.
In Sivell it was observed at [32], however: "A sentencing judge is obliged to utilise the concept of mid range offending, and customarily appoints positions within or outside that range as a standard or measure against which to assess objective seriousness, when sentencing for offences where a standard non-parole period applies under Division 1A of Part 4 of the Crimes (Sentencing Procedure) Act. This is in accordance with the approach mandated by this Court in R v Way [2004] NSWCCA 131; 60 NSWLR 168. However, it is neither necessary nor in most cases desirable for sentencing judges to make an assessment of the objective criminality in respect of offences not governed by a standard non-parole period with that same degree of nuance. I do not intend by that observation to suggest that there are not cases where particularity in the appointment of offending within a mid range of offending will not be warranted in order to ensure that the reasons for the imposition of a particular sentence achieve the objectives of clarity and transparency. When sentencing co-offenders it is often necessary to differentiate in this way in recognition of the need to ensure parity in the sentences imposed. In many cases, however, it is sufficient for a sentencing judge to make an assessment of objective criminality by reference to the maximum penalty, and to those other features of the particular offending that bear upon the gravity of the offence having regard to the circumstances of its commission, on a broad gradient of seriousness."
These observations were made before Way was overturned in Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 and so must now be approached with some caution, given what was there held as to a sentencing court not being permitted to embark on a two stage approach to sentencing. Nevertheless, that what Colefax DCJ did, given these remarks was more than express his conclusions as to the gravity of Mr Conte's three offences "on a broad gradient of seriousness", is not apparent.
As discussed in R v Van Ryn [2016] NSWCCA 1 at [134]-[136], assessment of the objective seriousness of an offence is a critical component of the sentencing process, given that the purposes of sentencing specified in s 3A(a) of the Crimes (Sentencing Procedure) Act 1999 (NSW) include ensuring that the offender is adequately punished for the offence and that a sentence should not exceed, or be less than, what is proportionate to the gravity of the crime.
Further, in The Queen v Kilic (2016) 259 CLR 256; [2016] HCA 48, there in the context of a discussion as to offending found to have fallen into "the worst category", it was observed at [19] that "a sentencing judge is bound to consider where the facts of the particular offence and offender lie on the "spectrum" that extends from the least serious instances of the offence to the worst category, properly so called".
It follows that in the passage about which complaint was made, as Colefax DCJ was obliged to do even in the case of offences for which no standard non-parole period is fixed, his Honour revealed his conclusions as to the objective seriousness of the offences for which Mr Conte was sentenced and where in the spectrum of such offending the offences fell. Contrary to the case advanced for Mr Conte, it was not an "error in principle" for his Honour to have so approached this sentencing exercise.
Colefax DCJ considered that the s 52A(2) offence was "toward the upper end of the scale" of objective seriousness, but the s 52A(4) offence only slightly over the mid-range, even though both were the result of the same dangerous driving. As was submitted for the Crown, this can only reflect the account which his Honour took of the nature of the grievous bodily harm which resulted for Mr Alegre from that driving, which could have been even more serious than it undoubtedly was.
This Court is slow to set aside such conclusions, involving as they do the sentencing judge's task of fact finding and drawing inferences from those facts, on the evidence received on sentence and then exercising the sentencing discretion, in the face of those conclusions: Mulato v R [2006] NSWCA 282 at [37].
Given the evidence as to the serious nature of all that was involved in Mr Conte's offending, particularly when he drove the stolen Landcruiser without its lights on and without stopping or braking entered the intersection against the red lights and hit the Yaris, thereby killing Mrs Alegre and seriously injuring Mr Alegre and then fleeing the scene, that the conclusions which Colefax DCJ reached about the objective seriousness of Mr Conte's offences were not open, is not apparent.
This ground of appeal must thus be dismissed.

Ground 3 - special circumstances

Colefax DCJ concluded that there should be no finding of special circumstances, despite Mr Conte's youth and this being his first time in full-time custody, because it could not be concluded that his prospects of rehabilitation would be enhanced by a longer period on parole.
On appeal it was argued that his Honour had erred in failing to take into account other relevant matters, including Mr Conte's willingness to engage in drug and alcohol programs and to enter a residential rehabilitation facility; his need for medical supervision, given his epileptic condition; and his desire to address his criminogenic factors.
Mr Conte did not give evidence about any of these matters. Colefax DCJ was sceptical of what he had written to the Court and told those who had examined him. His Honour considered, but rejected the appropriateness of a longer period of supervision on parole, having concluded that while rehabilitation was highly desirable, account had to be taken of the fact that Mr Conte had committed these offences while on bail; his risk of re-offending had been assessed to be medium to high; and that since going into custody, he had committed 26 misconduct charges related to violence and drugs.
This and what was revealed by the psychiatric report was what persuaded Colefax DCJ not to make a finding of special circumstances, because given the time that Mr Conte would necessarily be on parole, his Honour considered that a longer period would not enhance his prospects of rehabilitation.
This conclusion was undoubtedly open because, as discussed in R v Windle [2012] NSWCCA 222 at [55], when an offender with poor prospects of rehabilitation shows a lack of remorse, a finding of special circumstances will not be warranted. In such a case, protection of society may assume prominence in the sentencing exercise. There was accordingly, no error in his Honour's approach.
This ground should thus also be dismissed.

Ground 1 - manifest excess

In order to establish this ground Mr Conte must demonstrate that the aggregate sentence was "unreasonable or plainly unjust": Dinsdale v R (2000) 202 CLR 321 at 325; [2000] HCA 54. There is no single correct sentence and accordingly, it is not sufficient to establish that this Court may have imposed a different sentence, had it sentenced him: Markarian v The Queen (2008) 228 CLR 357; [2008] HCA 45 at [26]-[28].
The ground is not established simply by showing that the sentence imposed is markedly different to that imposed in other cases. Intervention may be justified where the difference is such that the Court can conclude that there must have been some misapplication of principle, even though where and how cannot be discerned from the reasons given: Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [59].
For Mr Conte it was accepted that Colefax DCJ's sentencing remarks revealed that he was mindful of what had been decided in the guideline judgment in R v Whyte (2002) 55 NSWLR 252; [2002] NSWCCA 343, concerning sentencing for matters under s 52A. It was also acknowledged that he did not fit into the typical case there considered. Differences identified included that he was not driving at excessive speed at the point of impact; he was not of prior good character; and he had defended the allegations at trial.
It was also contended that the aggregate sentence ultimately imposed had been inflated by the high indicative sentences which Colefax DCJ had given, which had failed to take adequate account of his compelling subjective circumstances, including his age of only 20 years.
Reliance was also placed on the conclusions reached in R v Harris [2015] NSWCCA 81, a successful Crown appeal where the offender was resentenced for his plea to three offences of dangerous driving causing death under s 52A(1)(c) of the Crimes Act and one count of dangerous driving causing grievous bodily harm under s 52A(3)(c). The maximum penalties for those offences were respectively 10 and 7 years imprisonment. The aggregate sentence imposed on Mr Harris was 7 years and 6 months, with a non-parole period of 5 years and 6 months, after a 25% discount.
Thus it was argued in written submissions that it was "difficult to appreciate the glaring difference in the punishment imposed in this case". In oral submissions it was submitted that it was "astonishing" that Mr Conte had been charged with more serious offences. Comparisons with the authorities to which the Crown had made reference were also drawn, especially the non-parole period imposed in Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255. It was submitted that given that Mr Conte's offences had been committed in the one course of conduct, a similar sentence should have been imposed.
These submissions cannot be accepted.
First, in arriving at the sentence, account had to be taken of all of the relevant evidence, which included the dangerous way Mr Conte had been driving, the speeds at which he had driven before the impact and that it had occurred after he entered the intersection against a red light, when he should have stopped.
As discussed in Kilic at [22], an examination of other cases may provide a relevant "yardstick" by which a sentencing court can attempt to achieve consistency in sentencing, that informing as it can a "broad understanding of the range of sentences that would ensure consistency in sentencing and a uniform application of principle." That will not, however, necessarily result in similar sentences, for relevantly different offending.
One of the difficulties with the reliance placed on the sentence imposed in Harris, is that it was different offending to that of which Mr Conte was convicted, which there arose for sentence, even though in both cases death was caused as the result of the offenders' driving. A decision about the charges laid against offenders is a matter for the prosecution. Such decisions are thus not relevant to the Court's sentencing task in other cases, where different charges have been laid and found proven.
Another difficulty is that on sentencing it is the maximum penalty fixed by the legislature for the offence for which an offender is being sentenced which must be taken into account, not that imposed for some other offence. As discussed in Markarian at [31], such a penalty invites a comparison between the worst possible case of that kind and the offence for which the sentence is being imposed. That applicable maximum penalty must thus be considered together with all of the other relevant factors which arise for consideration, in arriving at the sentence for the particular offences committed.
It follows that contrary to the case advanced for Mr Conte, what was decided in Harris is of no relevance to what arises to be decided on this appeal.
The Crown referred to other cases where similar offending to that committed by Mr Conte arose to be sentenced, submitting that they showed that while the aggregate sentence imposed on Mr Conte was stern, it was not excessive. Those referred to were: 1. Bombardieri v R (2010) 203 A Crim R 89; [2010] NSWCCA 161. There the applicant pleaded guilty to an offence of aggravated driving causing death under s 52A(2) of the Crimes Act, the circumstance of aggravation being that the applicant was driving his vehicle in an endeavour to escape pursuit by a police officer. The applicant was sentenced to 10 years imprisonment with a non-parole period of 6 years and 6 months, after a discount of 16.6% for the plea. The applicant was also aged 20 at the time of that offence, showed remorse and was considered to have good prospects of rehabilitation. On appeal the sentence was found to be manifestly excessive, having regard to similar cases. The applicant was resentenced to 9 years imprisonment, with a non-parole period of 5 years and 9 months, reflecting a sentence before discount of 10 years 10 months, with a non-parole period of 6 years, 9 months. 2. R v Wright (2013) 229 A Crim R 245; [2013] NSWCCA 82. This applicant pleaded guilty to one count of aggravated dangerous driving causing death under s 52A(2) of the Crimes Act and one count of aggravated dangerous driving occasioning grievous bodily harm under s 52A(4). These offences also involved two victims. The matters of aggravation were driving the vehicle more than 45km/h over the speed limit while under the influence of intoxicating liquor, with a blood alcohol concentration of not less than 0.157 grams of alcohol per 100 millilitres of blood. For the s 52A(2) offence the applicant was sentenced to 9 years imprisonment, with a non-parole period of 5 years, 3 months and for the s 52A(4) offence, 3 years imprisonment. The total sentence was 9 years, 6 months' imprisonment with a non-parole period of 5 years and 9 months, after a discount of 25% for the pleas. That reflects a sentence before discount of 12 years, 8 months, with a non-parole period of 9 years, 6 months. The applicant's appeal was dismissed. 3. Smith v R [2011] NSWCCA 290. This applicant pleaded guilty to an offence of aggravated dangerous driving causing death under s 52A(2) of the Crimes Act. The sentenced imposed was 8 years imprisonment with a non-parole period of 6 years after discount. The severity appeal was allowed and the applicant resentenced to 7 years imprisonment with a non-parole period of 5 years and 3 months, to maintain consistency of approach to sentencing. The amount of the discount given for this plea is not revealed by the judgment. 4. Lehn v R. The applicant pleaded guilty to one charge of aggravated dangerous driving causing death contrary to s 52A(2) of the Crimes Act and one charge of stealing a motor vehicle contrary to s 154F of that Act. The s 154F offence carried a maximum penalty of 10 years. On the s 52A(2) offence, the applicant was sentenced to 10 years imprisonment, with a non-parole period of 7 years, taking into account a Form 1 offence of failing to stop and assist after a vehicle impact causing death contrary to s 52AB(1) of the Crimes Act. On the s 154F offence, the applicant was sentenced to 2 years of imprisonment, taking into account two Form 1 offences of drug possession contrary to s 10 of the Drug Misuse and Trafficking Act 1985 (NSW). The total sentence was 11 years with a non-parole period of 8 years, after a 20% discount for the plea. The applicant was resentenced to 1 year and 9 months imprisonment for the stealing a motor vehicle offence, partially accumulated to the extent of 6 months. He was resentenced to 8 years and 3 months imprisonment for the aggravated dangerous driving causing death offence, with a non-parole period of 5 years, after a finding of special circumstance and a 25% discount for the plea. That reflects a sentence before discount of 11 years imprisonment, with a non-parole period of 8 years, 3 months.
It follows that Wright was the most directly comparable of these cases, involving as Mr Wright's offending also did, offences under both s 52A(2) and 52A (4). The aggregate sentence imposed on Mr Wright for his two offences, prior to discount was 12 years, 8 months, with a non-parole period of 9 years, 6 months, while for his three offences Mr Conte received an aggregate sentence of 14 years with a non-parole period of 10 years, 6 months, not being entitled to any discount.
There were other similarities and differences between these two cases:

Mr Wright, aged 43, drove his vehicle by more than 45 kph over the speed limit, his speeds having reached between 163 kph and 197 kph on the Pacific Highway where the speed limit was 100KPH, while affected by alcohol. He had a prescribed concentration of alcohol of not less than 0.157 grams of alcohol per 100 millilitres of blood.
Mr Conte, aged 20, drove with his lights off through a red light at 37kph, when he should have stopped, while seriously affected by drugs and lack of sleep, his prior speeds having reached up to 80-100 kph on suburban roads, having driven through another red light, where the speed limits must have been less than 100 kph. He was affected by drugs and had not slept for 3 days.
It was Mr Wright's passengers who were the victims of his driving, while it was the driver and passenger of another vehicle who were the victims in Mr Conte's case.
Both Mr Wright and Mr Conte had records of prior offending and difficult subjective circumstances, including in Mr Wright's case, a history of mental illness, which was not found to have contributed to his offending.
Mr Wright was injured in the accident and gave evidence on sentence. Mr Conte was not injured and did not give any evidence.
Remorse, prospects of rehabilitation and special circumstances were found in Mr Wright's case, but not in the case of Mr Conte.

The difficulty in drawing comparisons even between these two cases is thus apparent, given the matters which Colefax DCJ had to take into account, when undertaking the instinctive synthesis discussed in Markarian, in arriving at Mr Conte's sentence.
In Wright it was concluded on appeal that he had engaged in "disgracefully irresponsible conduct", close to the worst type and that his moral culpability for his offending was high: at [86]. And at [87], that the partial accumulation by only 6 months on the sentence for Mr Wright's second offence was generous, as that offence was itself very serious.
Similar observations must be made in this case. The driving which Mr Conte engaged in while he was at liberty on bail and disqualified from driving was also dangerously irresponsible, resulting as it did in the death of Mrs Alegre and the very serious injuries which will affect Mr Alegre for the rest of his life. Account must also be taken of the evidence that Mr Conte drove the Landcruiser which had its lights off, through the second red light without even braking and hit the Yaris in which Mr and Mrs Alegre were driving, without prior warning or braking. Mr Conte's moral culpability for this offending was considerable, as he properly accepted on appeal. The conclusion that he had no remorse or good prospects of rehabilitation reflected the account which had to be taken of the evidence that in custody, he had continued to pursue offences involving drugs and violence. In the circumstances, unlike Mr Wright he was not entitled to leniency on sentence.
By further comparison, Mr Lehn who was aged 24, also drug affected while driving and with difficult subjective circumstances, was found to have committed a particularly serious s 52A(2) offence, having driven at grossly excessive speed in excess of 45kph above the speed limit when he lost control and killed a victim walking on the nature strip. An offence of failing to stop and assist after a vehicle impact causing death was taken into account on a Form 1. This was nevertheless overall less serious than Mr Conte's offending, given how seriously he also injured Mr Alegre, with the result that he was charged with a s 52A(4) offence and unlike Mr Conte, in Mr Lehn's case there was an evidentiary basis for a finding of special circumstances.
Before discount Mr Lehn's sentence was 11 years imprisonment, with a non-parole period of 8 years, 3 months, after findings of genuine remorse and reasonable prospects of rehabilitation, given his pursuit of treatment for his drug addiction. Mr Conte's sentence was 14 years with a non-parole period of 10 years, 6 months
As discussed in Wright at [83] in relation to the cases there said to be comparable, the upper limit of the range of sentences imposed for offending of the kind for which Mr Conte was being sentenced, was not fixed by these comparable cases, but by the applicable maximum penalties for each of his offences.
Neither on the evidence in Mr Conte's case, or by comparison to these other cases, can it be concluded that the indicative sentences which Colefax DCJ gave for his offences were erroneously high, given all that had to be taken into account in arriving at those sentences.

Orders

For these reasons the orders I would make are: 1. Leave to appeal allowed; and 2. Appeal dismissed.

Amendments 25 October 2018 - Amendment to Coversheet - name of Applicant's solicitor corrected 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: 25 October 2018

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