Crowley v R

Court of Criminal Appeal (NSW)|2021-03-03|Before: Basten JA, Harrison J, Adamson J

Judgment

BASTEN JA: For the reasons given by Adamson J, I agree that the applicant should have leave to appeal against the sentence imposed on him in the District Court on 28 October 2019, but that the appeal should be dismissed.
Despite the seeming complexity of the grounds of appeal, the challenge to the sentence turned on the proposition that the judge had failed to give proper consideration to evidence that the furious driving on the part of the applicant resulted from a mental condition variously described as an anxiety disorder, a panic attack or a blackout. The applicant accepted that he could not have driven as he did had he in fact blacked out. That possibility may be discounted. However, his psychiatrist, Dr Nielssen, accepted that he had "an anxiety disorder, with features of both panic disorder and obsessive compulsive disorder", which found occasional expression. The question for the sentencing judge, however, was whether such intermittent events were shown to have any causal connection with the conduct leading to the fatal accident. Dr Nielssen stated: "Although there were no reports of similar episodes of furious driving caused by the 'fight or flight' response associated with panic disorder, the effect of an acute panic attack is one possible reason for his driving behaviour just before the crash."
That was the high point of the evidence in favour of such a causal link. There was no science-based evidence of these conditions typically leading to such conduct, nor is such a causal link something which could be inferred without some scientific support.
The sentencing judge formed a similar view, stating that it seems to be "completely incongruous that a panic attack could persist for the whole of the course of the driving". He further stated that it seemed to be "inherently implausible that a person with anxiety, even in a panic state, would drive for this distance at grossly excessive speeds against the traffic, against road signs to withdraw from some perceived confrontation." Absent science-based evidence to the contrary, that view was entirely reasonable. The judge continued, "there is no evidence that the panic condition precludes a driver's control of the vehicle and clearly there are many explanations which are much more likely for his course of driving." The judge concluded: "But I deal with the matter simply on the basis of the objective facts which reveal sustained, aggressive, erratic, highly irresponsible and dangerous driving. I do accept that generally mental conditions can impact on culpability. I accept that he has anxiety and depression and OCD and a mental condition may have the effect of reducing moral culpability and [the] requirement for general deterrence and denunciation and that is especially so where it contributes to the offence. I do not consider that the offender had any condition that affected his capacity to choose to drive and to drive and continue to drive in the manner that he obviously did. There is nothing in my view that precluded an appreciation of the gravity of the conduct or the consequences." Those findings were open to the judge on the evidence; indeed, arguably they were the only conclusions reasonably open.
The aggregate sentence imposed was undoubtedly a severe one. However, the judge was entitled to find that the conduct demonstrated a flagrant disregard for the lives of other road users and the consequences were, as Adamson J notes, nigh on inevitable. No basis has been shown for this Court to intervene.
HARRISON J: I agree with Adamson J.
ADAMSON J: Robbie Crowley (the applicant) seeks leave to appeal against the aggregate sentence imposed on him by Frearson SC ADCJ on 28 October 2019 following his plea of guilty to four offences: the manslaughter of Blake Feeney and three offences of aggravated dangerous driving causing grievous bodily harm to Mark Johan, Matthew Johan and Grace Hiett respectively. There were two further charges on a Form 1, cause bodily harm by misconduct in charge of a motor vehicle to Teresa Strach and Penata Tevita, which the applicant asked to be taken into account on the manslaughter count.
His Honour imposed an aggregate sentence of 14 years and 3 months' imprisonment with a 10 year non-parole period. The sentence commenced on 30 March 2018. The applicant will be eligible for release after the expiry of the non-parole period on 29 March 2028.
The offences, the maximum penalties and the indicative sentences are set out in the following table: Offence Maximum penalty Section of the Crimes Act 1900 (NSW) Indicative sentence Manslaughter of Blake Feeney 25 years' imprisonment s 18(1)(b) 11 years' imprisonment Form 1 offences (taken into account on sentence for manslaughter)
Cause bodily harm by misconduct in charge of a motor vehicle (Teresa Strach)
Cause bodily harm by misconduct in charge of a motor vehicle (Penata Tavita) Aggravated dangerous driving occasioning grievous bodily harm (Mark Johan) 11 years' imprisonment s 52A(4) 4 years, 6 months' imprisonment Aggravated dangerous driving occasioning grievous bodily harm (Matthew Johan) 11 years' imprisonment s 52A(4) 4 years, 8 months' imprisonment Aggravated dangerous driving occasioning grievous bodily harm (Grace Hiett) 11 years' imprisonment s 52A(4) 4 years, 8 months' imprisonment

The grounds of appeal

The grounds in respect of which leave is sought are set out in the amended application which was filed on 28 July 2020 as follows: "Ground 1: The sentencing proceedings miscarried by reason of a combination of the following circumstances: 1) The sentencing judge indicating that he was not prepared to adjourn the matter for the purposes of obtaining further evidence, leading to a reasonable apprehension that the matter would not be adjourned for that purpose; 2) The applicant's representatives being unaware of the inconsistency regarding the applicant's panic attacks until the matter was drawn to their attention by the sentencing judge; 3) Upon obtaining further evidence from Dr Rodriguez on the contested subject, resolving and clarifying the inconsistencies between Dr Rodriguez and Dr Nielssen; 4) The sentencing judge placing significant reliance upon the detail contained [in the] ERISP in drawing extensive adverse inferences against the applicant, based on inconsistencies between the account therein and other accounts given, in circumstances where the basis upon which the document was provided was not formally stated nor clarified; 5) Defence counsel not being on notice of the adverse inferences drawn by the sentencing judge from the contents of the ERISP; and 6) The inconsistencies between those accounts not being put to the applicant properly (or at all) in cross-examination. 7) The applicant was incompetently represented at the sentence proceedings by his legal representatives. Ground 2: The applicant was denied procedural fairness as a result of the sentencing judge drawing adverse inferences from the contents of the ERISP without notice to defence counsel. Ground 3: The sentencing proceedings miscarried in the absence of new evidence regarding the applicant's mental state. Ground 4: The sentence imposed was manifestly excessive."
As circumstance 7, relied on in support of ground 1, was not added until the hearing of the appeal, it was not addressed in the written submissions, but was dealt with orally.
Because grounds 1-3 pertain to the conduct of the proceedings on sentence it is necessary to address in some detail what occurred at the sentence hearing. It is also necessary to set out the facts and evidence for the purposes of addressing ground 4.

The sentence proceedings

The sentence proceedings took place on 25 October 2019. Both parties prepared, and relied on, written submissions.

The Crown's written submissions for the sentence proceedings

Of present relevance, the Crown submitted in writing that the applicant's moral culpability was high as he had "driven the vehicle in a dangerous manner at high speeds and on the incorrect side of the road for a substantial period of time." It also submitted that the applicant's decision to drive while intoxicated constituted "an abandonment of responsibility." The Crown noted that it was difficult to assess the applicant's state of mind at the time of the offences as he said he had no recollection of the events and the offending.
The Crown attached a map to its written submissions which set out the path of the applicant's vehicle from the time he left his partner's place until the time of the fatal collision. The map (in accordance with the statement of facts set out below) showed the vehicle heading south-east along Raby Road, turning left into Spitfire Road, doubling back along Spitfire Road, turning left into Raby Road and then travelling the wrong way down the one-way off-ramp coming from Campbelltown Road, travelling approximately 2kms along Campbelltown Road, in a southerly direction down the northbound bicycle lane and through the intersection of Rose Payten Drive towards Collaroy Road.

The applicant's written submissions for the sentence proceedings

In the written submission relied on by the applicant, he accepted that the evidence revealed not only a high level of moral culpability but also an abandonment of responsibility. As to his state of mind, he indicated that he would rely on the report of Dr Marcelo Rodriguez, psychologist, dated 12 October 2019, the report of Dr Olaf Nielssen, psychiatrist, dated 3 October 2019 and the Justice Health records.

The oral hearing on 25 October 2019

At the hearing on 25 October 2019 the Crown informed the sentencing judge that, on 30 March 2018, the applicant had been arrested and charged with the offences for which he stood to be sentenced as well as the offences on the Form 1. The Crown also informed his Honour that on 22 May 2019, the applicant had pleaded guilty in the Local Court, as a result of which the matter had been committed for sentence to the District Court.
It was common ground that the manslaughter to which the applicant had pleaded guilty would fulfil the requirements of both unlawful and dangerous act manslaughter and gross negligence: for the elements of each and the differences, see Lane v R [2013] NSWCCA 317; (2013) 241 A Crim R 321 at [54]-[64] (Bathurst CJ, Simpson and Adamson JJ).

The Crown tender bundle

The Crown tendered a bundle of documents on sentence, which comprised the notice of committal and court attendance notices; a copy of the Form 1; a certificate pursuant to s 166 of the Criminal Procedure Act 1986 (NSW); a document entitled, "Statement of facts" (which, although non-compliant with s 190 of the Evidence Act 1995 (NSW) was accepted by the parties to be a statement of agreed facts); the applicant's criminal and custodial histories; and four victim impact statements.

The statement of facts

The facts relating to the circumstances of the offences were as follows: "1. At about 7.10pm on Friday 30 March 2018, the offender's vehicle seen travelling eastbound on Raby Road Kearns at an estimated speed of over 140 km/h1 in excess of the 70km/h speed limit. This was captured on a civilian witness' dash-cam and was observed by police who were travelling westbound on Raby Road. 1 This speed was calculated from the dashcam footage. 2. Police turned their car around and commenced following the offender's car at high speeds in an attempt to catch up to him. Police then observed the offender's car turn left into Spitfire Drive and attempted to follow him again at high speed but lost sight of the car. Police turned off their warning lights and slowed down, when they were stopped by pedestrians who told them that they saw the car turn right into a side street of Spitfire Drive before turning back onto Spitfire Drive travelling southbound. 3. Police attempted to locate the car but were unable to and continued with other duties before hearing about the collision on Campbelltown Road. 4. The offender was witnessed by a civilian turning left from Spitfire Road onto the incorrect side of Raby Road. He was seen travelling on the wrong side before he turned right onto the off-ramp coming from Campbelltown Road in the wrong direction of traffic. This was in contravention of 2 large signs showing 'Wrong Way Go Back.' 5. The offender's vehicle travelled in excess of the speed limit for a distance of approximately 2 km along Campbelltown Road, from Raby Road to Collaroy Road. 6. The car travelled south down the north bound bicycle lane through the intersection of Rose Payten Drive towards Collaroy Road where he 'sideswiped' a grey Toyota Yaris. 7. The offender continued travelling south "sideswiping" a Nissan X-Trail before being captured on Dash-cam footage from a Ford Mondeo which he also 'sideswiped'. The offender continued to drive at high speeds when he sideswiped a grey Hyundai Santa Fe before impacting heavily with the front nearside of a red Holden Commodore where the front passenger Teresa Strach suffered minor injuries. 8. The offender travelled a short distance further at high speed before his car impacted in a head-on style collision with the Kia Sportage driven by Penata Tevita. Mr Tevita was utilising the vehicle as an Uber vehicle and had 4 passengers, Mark Johan, Matthew Johan, Grace Hiett and Blake Feeney. All occupants suffered a wide range of serious injuries with Blake Feeney dying as a result of his injuries. At the time of impact the offender's vehicle was estimated to be travelling at about 144 km/h in a 80km/h zone. 9. Following the impact with the Kia, the offender's car left the roadway onto the western kerb where the driver's door impacted with a metal pole, causing the car to rotate and come to rest on the western kerb before catching fire. Witnesses were able to pull the offender from the driver's seat and extinguish the fire. The offender was escorted under police guard in a serious condition suffering leg and elbow injuries, fractured spine, nose and ribs, punctured lung and internal bleeding from a split stomach which required surgery which required surgery. He was formally charged at Liverpool Hospital. The offender participated in an electronically recorded interview on Monday 4 June 218, when he told investigating police that he had no recollection of the incident. He recalled attending a party at his partner's home in Kearns where he consumed alcohol (beer) but could not recall how much he consumed. He then recalled leaving the party to attend a friend's house in St Helen's Park. The last thing he recalled was walking to his car. 10. Examination of the offender's blood later found the concentration of alcohol in his blood was not less than 0.12grams, being within the mid-range concentration of alcohol."
The balance of the agreed facts related to the death of Mr Feeney, who was then 17 years old and the injuries sustained by Mark Johan, Matthew Johan, Gracie Hiett, Penata Tevita and Teresa Strach.

The defence tender bundle

The defence tendered a bundle which comprised the following documents: a report dated 22 October 2019 from Dr Nielssen; a report dated 17 October 2019 from Dr Rodriguez; extracts from Justice Health records; an affidavit of Dianne Crowley (the applicant's mother); medical certificates relating to Dianne Crowley; an affidavit of Renee Cubbo (the applicant's sister); documents relating to the applicant's (post-incarceration) bankruptcy on his own petition; extracts from the Computerised Operational Policing System (COPS) entries regarding an assault on him in 2011; and extracts from documents produced by Campbelltown Hospital relating to the 2011 assault.
Also included in the bundle were references from Ashleigh Blackwell (the applicant's partner); Sandra Sperling (the payroll manager at Sperling Enterprises, where the applicant had worked from 14 September 2010 until 3 April 2018, most recently as a receiving dock supervisor); Penny Williams (manager of Disability Macarthur, where the applicant volunteered for the five years before his incarceration); Corrinne Blackwell (the mother of the applicant's partner); Michelle Tomkins (the applicant's partner's step-mother); Mark Clissold (a neighbour of the applicant); and Aidan Martin (a friend of the applicant from school). The final document in the bundle was a letter written by the applicant expressing his sorrow and regret at the consequences of his actions.

Dr Nielssen's report dated 22 October 2019

Dr Nielssen, who was not required for cross-examination, identified the material with which he had been briefed, which included the applicant's Electronically Recorded Interview of a Suspected Person (ERISP) conducted on 4 June 2018 and an affidavit from the applicant's partner affirmed on 20 August 2019 (referred to below but not tendered at the sentence proceeding).
In his report, Dr Nielssen recorded that the applicant gave the following history to him in the consultations on 30 July 2019 and 1 October 2019: "He confirmed that he was driving a 2010 model Holden Commodore with a six litre V8 engine. He understood that he was dragged from his car unconscious after the collision, shortly before the car caught fire, and his injuries did not include burns. Mr Crowley confirmed that he participated in an ERISP Interview on 4.6.18, about nine weeks after the offences, in which he told the investigating police that he had no memory of the crash or his driving in the moments beforehand. When asked about his state of mind in the lead up to the offence, Mr Crowley said 'I have had really bad cases of anxiety and depression ... I get a tight chest and I feel like I have to get away from it because I feel something bad Is going to happen'. Mr Crowley said that his recollection of the events of the day were that he was at his partner's house and was playing an unfamiliar card game with his partner Ashleigh Blackwell, her sister's partner and three other people. He said 'l have got very bad anxiety and fear of confrontation from my experience of being bullied as a kid ... I get shaky and I have to get away from the situation ... something happened and everyone kind of turned on me so I got up and left'. He said that he left on his own, and from what he could remember he planned to [go to] the home of another friend, who lived about a twenty minute drive from his girlfriend's place. He said 'all I remember is walking to my car door and that was it'. When asked about the furious driving described in the Agreed Facts, Mr Crowley said that he had no memory of any of the events prior to the collision, including being chased by the police, sideswiping cars or the final collision."
Under the heading, "DOCUMENT REVIEW", Dr Nielssen said in part: "A COPS entry from 9.1.11 noted the history of Mr Crowley and a friend being assaulted by a group of men … while intoxicated."
Dr Nielssen said, under the heading, "Mental State Examination", that there were "no odd usages or odd beliefs suggesting underlying psychotic illness or brain injury affecting communication". He also said: "Mr Crowley was alert and maintained attention for the duration of the interview, and did not seem restless or easily distracted. His registration and retrieval of information was assessed to be unimpaired from the fairly detailed personal history he was able to provide, and there was little in the way of residual evidence of an acquired brain injury during the recent interview. His intelligence was estimated to be in the normal range, from his vocabulary and educational attainment."
Under the heading, "OPINION", Dr Nielssen said in part: "The diagnosis of an anxiety disorder, with features of both panic disorder and obsessive compulsive disorder, is made on the basis of Mr Crowley's account of typical panic attacks, confirmed in his mother's affidavit and entries in the various medical records. Mr Crowley described typical panic attacks, with intense anxiety, the perception that he was unable to breathe resulting in hyperventilation, profuse sweating, tremor, dizziness, tunnel vision and the feeling that he was about to faint. His mother confirmed that Mr Crowley was an anxious child and reported the onset of panic attacks from the age of ten. Dr Freelander's notes confirm the referral to a psychologist at the age of fifteen because of anxiety and depression. …"
Dr Nielssen diagnosed obsessive compulsive disorder. He also noted that the applicant sustained an acquired brain injury in an assault when he was 19 "which added to his anxiety symptoms". He continued: "From the information that is available, it seems likely that Mr Crowley left his girlfriend's home because of anxiety symptoms that led to a panic attack, and that his furious driving took place while he was affected by symptoms of a panic attack. Panic attacks are associated with intense and uncontrollable anxiety and are often accompanied [by] an intense urge to escape the feared situation. Although there were no reports of similar episodes of furious driving caused by the 'fight or flight' response associated with panic disorder, the effect of an acute panic attack is one possible reason for his driving behaviour just before the crash. The aetiology of Mr Crowley's reported amnesia of the events is not clear. … [t]he most likely cause of disrupted memory was the effect of pain relieving and sedating medication administered in the course of emergency medical treatment, on a background of a moderate quantity of alcohol." [Emphasis added.]
Dr Rodriguez assessed the applicant on 8 October 2019. In his report, dated 17 October 2019, he recorded that he, too, had been provided with the affidavit of the applicant's partner and the ERISP. Under the heading, "MENTAL HEALTH HISTORY", Dr Rodriguez recorded: "He reported a history of panic attacks only since incarceration, triggered by news of car accidents5. He denied a previous history of panic attacks (i.e. out of the blue experiences)."
Footnote 5 in Dr Rodriguez's report said: "He reported on 27 January 2019 to a Justice Health nurse that he was experiencing 'flashbacks' from the MVA. In June 2019, he said he continued to experience PTSD symptoms, had 'spoken to a specialist; however, she stopped coming'. He also complained of feeling as though he would faint or 'pass out'."

Ms Blackwell's reference

Ms Blackwell's reference, dated 15 October 2019, contained the following: "I remember on that day we were playing a game with all my siblings and their partners. It was [the applicant]'s turn, but it seemed that [the applicant] broke the rules of the game and he was confronted about it by the whole group. He tried to defend his position (that it was within the rules), however, the group started talking all at once and got a bit loud, saying that he broke the rules and that his turn is over and trying to explain why, [the applicant] appeared uneasy, uncomfortable and had a panic[ked] look on his face before [he] walked off. It looked to me that [the applicant] may have felt that they were ganging up on him when they all went against him all at once. I went to see him a couple of minutes later, he seemed affected from the situation and appeared to be in his own mind zoned out, but it was not from drinking alcohol. He still seemed uncomfortable and upset, he wanted to go for a drive, and I wanted to give him space as not to crowd him and clear his mind because none of us thought he would be over the limit."

The applicant's evidence at the sentence hearing

The applicant was called to give evidence at the sentence proceeding. His counsel asked him whether the histories he had given to the psychiatrist (Dr Nielssen) and the psychologist (Dr Rodriguez) were correct. The applicant answered in the affirmative. His Honour immediately interjected and pointed out that there was a discrepancy in the histories given. The following exchange ensued: "HIS HONOUR: The history is not the same now. Isn't there a difference in the history as to when he was known to suffer panic attacks whether it was only post incarceration? Isn't there a difference? All the history can't be correct in that? PELUSO: There is that difference. I will ask him about that."
Mr Peluso elicited from the applicant that the history he had given to Dr Nielssen about having suffered blackouts in the past was correct. Mr Peluso continued: "Q. When you were seen by Dr Rodriguez, did you mention anything about that? A. About blackouts, yes. Q. To the best of your knowledge was that correct what you told him at the time? A. Yes. HIS HONOUR: The part I was talking about was at p 8 of 18, the third last paragraph. PELUSO Q. On page 8 of 18 you reported a history of panic attacks since incarceration triggered by news of car accidents. A. Yes. Q. That's reported in Dr Rodriguez' report A. Yes. HIS HONOUR: It actually says only since [in] the report. PELUSO Q. Do you remember seeing Dr Rodriguez? He was the psychologist. A. Yes. Q. In his report that I've just referred to there, there is a reference to you reporting to him that you had panic attacks only after you went into custody, is that correct or not? A. I've had them before custody, yes. Q. So when you were seen by Dr Rodriguez, what did you tell him? That it was before or after? A. I had 10 panic attacks before I've been incarcerated. Q. So you didn't tell him it was only since? A. No."
His Honour asked the applicant to describe what happens when he has a panic attack. The applicant said that when he got really anxious he just walked away. He also said that when he is having a panic attack, he might also have a blackout. He described the situation as follows: "I haven't been able to stand up or move in any way even just walk[ing] can become very difficult. That's where some panic attacks can, they sometimes can get that bad but sometimes they don't, that's when my blackouts can occur from the panic attacks."
The applicant also gave evidence that, in the course of such attacks he suffered "headaches, dizziness [and] blurry vision" and that his motor functions can "go away" and that this affected his "alertness".
In his evidence at the sentence hearing, the applicant deposed to the following events immediately prior to getting into the car to leave his partner's residence: "Well, we were out the back playing a game of cards, I can't recall which game it was. Something happened where I went to go for my turn but it couldn't happen so what happened was I felt like I was getting targeted and attacked by everyone else who was there, like ganged up on in a way. And what happened was my anxiety started to happen, my chest started getting really tight, my heart rate increased I started sweating and then I withdrew from that situation. It happened in front of my partner's family and I was in a panic state. So I went into my partner's room where I stayed there for a few minutes and she followed me in a few minutes later. She tried to talk to me but I was in a state of, I was zoned out, I wasn't there, I wasn't responsive. I can't remember what she said to me or if I responded in any way back. The last thing I remember was I was walking towards my car."
The applicant admitted to having drunk to excess but said that he could not recall how much he had drunk. He told the Court that when he left in his car he was intending to drive home.
In cross-examination of the applicant, the Crown put to him what he had said in his ERISP in the following exchanges: "Q. In fact, you also agreed with police when you were interviewed, that you couldn't have driven for that distance and in the way you drove if you were suffering a blackout. A. Correct. Q. You recall having that interview with police on 4 June, some two months after the incident? A. Yes. Q. You told Dr Nielssen about something happening and everybody turning against you, just prior to getting in your car and you've told the Court today you remember that interview with police. You didn't mention anything about a game or people turning on you, did you? A. Not that I can remember but - Q. No, but police did ask you about the events leading up to the accident. Do you remember that? A. No. Q. If I tell you, when you were interviewed by police and they asked you where you were prior to this incident, you said that you were at a party at your girlfriend's house. You indicated that you had had some beer. A. Yes. Q. And when they asked you why you'd left the house, you told them you were visiting a friend. Do you remember that? HIS HONOUR: Do I have the interview? BROWN: No, you don't, your Honour. HIS HONOUR: I should have the interview, shouldn't I? BROWN: I haven't got an unmarked copy here. I can during, maybe the morning-- HIS HONOUR: This is a critical point. BROWN: It is a critical point. HIS HONOUR: I need to have the interview. BROWN: Yes. I can give you my copy but it is marked. HIS HONOUR: I'll ignore the markings. I'll pretend they're not there. BROWN: Yes, your Honour. I can hand that up now. Q. You told police that you were leaving your girlfriend's house to visit a friend at St Helen's Park? A. Yes. Q. You said you were going to visit him for about an hour‑‑ A. Yes. Q. ‑‑and that you were going to return to your girlfriend's house. A. Yes. Q. You didn't mention anything about a panic attack or feeling anxious? HIS HONOUR: Why didn't I have the interview before? This is ridiculous."
Although the ERISP was not separately marked as an exhibit, it was treated as if it had been added to Exhibit A, the Crown bundle. The Crown did not cross-examine the applicant further on the ERISP.
The understanding of the applicant's counsel that the ERISP had been tendered is evident from the following exchange at the conclusion of the hearing on 25 October 2019, where Mr Peluso referred the sentencing judge to parts of the interview which had not been the subject of cross-examination, as follows: "PELUSO: And your Honour has that interview in the crown tender - HIS HONOUR: Yes, I do have the interview. PELUSO: He does refer to his blackouts in previous meeting‑‑ HIS HONOUR: Yes, I haven't read it all but I will read it, Mr Peluso. I'll read the lot."
In the course of the Crown's oral submissions, the sentencing judge raised Dr Nielssen's explanation (in the passage commencing "From the information that is available" extracted above) that the applicant was having a panic attack when he decided to drive that evening. His Honour, in an exchange with counsel, contrasted this with what the applicant said in his ERISP (that he had left to see a "mate"). His Honour put to the parties that, in these circumstances, the applicant's departure would not appear to have been connected with any panic attack. The Crown, in effect, submitted that the Court should prefer the version the applicant had given to police since that was closer to the time of the incident.
In addition to this matter, his Honour invited Mr Peluso to address him on the apparently inconsistent history which the applicant is recorded as having given to Dr Rodriguez. I shall reproduce the entire exchange which followed because it is at the heart of grounds 1, 2 and 3: "PELUSO: I mean, as I said, and I emphasise, with great respect there are two doctors who have - and one a psychologist one a psychiatrist - have looked into this man's background. HIS HONOUR: They have. But one actually says he didn't complain of panic attacks until after the incarceration. I know he says something different here‑‑ PELUSO: No, your Honour, I've received some instructions from my solicitor who's in Court. He's made contact with the psychologist about that. And my instructions are‑‑ HIS HONOUR: I can't really have them, can I? Wouldn't he have to give evidence to say that he got it all wrong. PELUSO: We're going to have to provide something to the Court. HIS HONOUR: He got it all wrong. He made a big mistake. PELUSO: No. That's not a big mistake, it's an error in his definition of it, your Honour. That needs clarification. HIS HONOUR: Error in definition. What's that mean? I don't see any definition there. He reported a history of panic attacks, only since incarceration, triggered by news of car accidents. He denied previous history of panic attacks. A previous history of panic attacks - that is, out of the blue experiences. It seems emphatic and unequivocal. And you tell me he wants to resile from that. PELUSO: I think it needs to be clarified, your Honour. It's an important point. HIS HONOUR: It's an important point, but you're going to have to do it - can you do it today? PELUSO: I'll endeavour to‑‑ HIS HONOUR: I was hoping to sentence in this matter on Monday. I'm hoping to, because I don't think the family should wait any longer. PELUSO: No. Of course not. HIS HONOUR: It's dragged on too long already. HIS HONOUR: You better find him here this afternoon. PELUSO: I don't think that's possible. HIS HONOUR: What can I do? PELUSO: We could..(not transcribable).. SHORT ADJOURNMENT HIS HONOUR: All right, well what's happening? PELUSO: Your Honour, I can't get Dr Rodriguez here today. HIS HONOUR: All right. PELUSO: And he's not able to come next week at this stage. HIS HONOUR: All right. Well, I'm just going to sentence on Monday on the material that I've got. PELUSO: Your Honour, if I could address you in relation - HIS HONOUR: Yes, you can address me, yes. Yes. PELUSO: With respect, your Honour, in relation to - he has on p 8, 'He reported a history of panic attacks only since incarceration, triggered by news of car accidents,' and there's a footnote 5. In my submission, the - that information is gleaned and relates to the Justice Health records. HIS HONOUR: Right, okay. PELUSO: Now, I think that's an important qualification of it. HIS HONOUR: Well, I'll have a look, Mr Peluso. You just make your submissions and I'll be looking at all this. … PELUSO: Well, his overall ability - because of his mental health history, your Honour, he is a vulnerable person also. He doesn't deal with stressful situations. Now, going back to what happened on the night, it seems to an outsider this was all over some card game, the initiating thing, and then bullying followed, and then he retreated into the room. HIS HONOUR: But why can't he retreat by not driving the car? PELUSO: Well, of course. HIS HONOUR: It's a choice, retreating choice. PELUSO: Well, of course. HIS HONOUR: It's a choice, retreating choice. PELUSO: No excuse. Alcohol was a factor in this, your Honour. The ability to reason in a rational way for someone with his abnormality, which is detailed by both experts, is an issue for him. And he's not in the position of a person who otherwise doesn't have that. So in my respectful submission, it is a factor, an important factor, that the authorities have recognised should be taken into account if the evidence is there. And it is, there's a history of it, there's an extensive background. … HIS HONOUR: I don't know if he's finished. Have you finished, Mr Peluso? PELUSO: Almost, your Honour. Just checking my notes, just to make sure I haven't overlooked anything. And your Honour is minded to do this on Monday, this matter, yes? HIS HONOUR: I'm minded to do it on Monday. PELUSO: No possibility of next Friday? I would like to be here for it, your Honour. I'm interstate for the first three days of this week. HIS HONOUR: I think I should do it on Monday. Mr Peluso, the reason is because the delay actually causes a lot of anxiety for everybody concerned. I know how long this has dragged on. I just want to sentence it and at least people will know what's happened. It's unfortunate that you can't be here but I've got your very comprehensive submissions. I think I should do it on Monday. … PELUSO: And your Honour has that interview in the crown tender - HIS HONOUR: Yes, I do have the interview. PELUSO: He does refer to his blackouts in previous meeting - HIS HONOUR: Yes, I haven't read it all but I will read it, Mr Peluso. I'll read the lot. ADJOURNED TO TUESDAY 29 OCTOBER 2019"

The sentencing judgment

His Honour accurately stated the maximum penalties for the offences for which the applicant stood to be sentenced. His Honour recorded that a 25% discount would apply by reason of the plea of guilty. The sentencing judge set out the circumstances of the offences by reading out the agreed facts. His Honour described the injuries sustained by the deceased and the other victims.
His Honour noted that the applicant was travelling at 140km/h on Raby Road where the speed limit was 70km/h and 144km/h on Campbelltown Road in an 80km/h zone. His Honour said: "When I look at the gravity … of all the matters, I have regard to the speed, the distance travelled at high speed, the direction of travel, the ignoring of signs, the persistence in continuing to drive following multiple collisions. It was actually an atrocious exhibition of driving and he was not deterred by the speed limits, the road signs, the fact that he had been drinking, driving against the traffic or the multiple collisions. The course of driving was dangerous in the extreme and the driving manifested in abandonment of responsibility approaching the highest level. Clearly the driving involved created a risk of death or very serious injuries to other road users and indeed himself. It was a gross and extreme dereliction of the duty of a driver of a motor vehicle. The starting point obviously for the manslaughter is the loss of the human life. In this case a 17 year old."
His Honour noted the applicant's antecedents. In June 2014 he was dealt with under s 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW) and was also fined for driving with mid-range PCA. His Honour found that his record disentitled him to leniency but that he was otherwise of good character.
His Honour noted the victim impact statements which set out the consequences of the offences. His Honour noted the various histories given, as recorded in the ERISP, his oral evidence and the histories given to Dr Nielssen and Dr Rodriguez. The sentencing judgment continued: "Part of the difficulty with his account is in fact he is an unreliable historian because in the interview with police he told the police repeatedly there was no incident that precipitated the driving. He left happy. He said that repeatedly. … The account of the panic state is entirely inconsistent with what he said in the interview with police. He said in that interview, which is on 4 June 18, he recalls walking to his car. It was an SS Commodore 6 litre. He left from his partner's house. It was sunny, mid-afternoon. He was going to his mate's house at St Helens Park. He would go through Woodbine. He was asked at 139, 'Do you remember speaking to anybody beforehand? A. No. Q. An argument or anything? 141, No. Q. Quite happy when you left?" 142, Yes.' He did not know how much alcohol [he had] consumed, that is what he said in evidence as well. He did not have any argument with his partner. He did refer at pages 18 and 19 of the interview to a history of blackouts, but he did not disclose those to the doctor. He said no-one ever witnessed a blackout. He stated the obvious; he says he does not think he could have driven the way he did in a blackout. He said there was no altercation at the barbeque, but he just wanted to go and see his friend he said. 'Go and see my friend', he said, 'I did that a fair bit". The intention was to just hang out with a mate. The point is he was given every opportunity to refer to any tension that may have existed before he set off to visit his mate. He did not mention anything There is a reference from Ashleigh Blackwell, his partner, tab 10. She described how he walks away and goes to his room when confronted. What happened on the occasion in question was, she said the offender was accused of breaking the rules in the card game. She gives an opinion about how he must have felt. She felt he appeared uneasy, uncomfortable and had a panicked look on his face. She went to see him for a couple of minutes and she said he appeared that he had just zoned out. He seemed uncomfortable and upset and wanted to go for a drive. She saw no problem with that. Apparently she wanted to give him space so he could clear his mind. It does not contain many of the symptoms that the accused says are present when he has a panic attack. There is an observation of having a panicked look on his face and appearing to be zoned out. But again that account it is simply not consistent with the offender's own account to the police where he repeatedly said there was no problem before he left."
His Honour referred to the evidence of Dr Rodriguez and said: "It seems that Dr Rodriguez at least, distinguishes between a history of blackouts and a history of panic attacks. Dr Rodriguez said he had no gross deficits and no psychotic features. All he has is a dependent personality disorder and a persistent depressive disorder and the combination of disorders may have resulted in a dysphoric mood to the extent that he left the party upset and drove under the influence of alcohol. It does not actually say he left the party upset and certainly not to the police. He does not base in his opinion on any panic attack. The point is that regardless of whether the offender had a history of prior panic attacks, to Dr Rodriguez at least, he did not associate any panic attack with [h]is driving. The offender did not assert any connection."
The sentencing judge referred to Dr Nielssen's report and addressed the question whether the description of panic attacks was thought to be referable to the card game that was played that evening. His Honour continued: "But having said that, the real difficulty is that all this is completely inconsistent with what he told the police repeatedly. . . The problem is that the offender is actually not a reliable historian. The doctor [Dr Nielssen] expresses a view: 'It seems likely that the offender left his girlfriend's place because of anxiety symptoms that led to a panic attack. The effect of a panic attack is one possible reason for his driving just before the crash.' I do not know why Dr Nielssen limits it to the driving 'just before the crash' and the expression, it seems likely, in all the circumstances seems to equate to a mere possibility. In my view, at the highest point Dr Nielssen's opinion is the speculative possibility. I say that for a number of reasons. One, the offender told the police he was happy when he left the premises, repeatedly. At some point he actually suggested that blackouts could have been the cause but he abandoned that. He did not complain of all of these symptoms, of the typical symptoms of a panic attack in reference to incident in his interview with police. He did not complain of anything. The account on page 2 of Dr Nielssen's report presents as referable to historical symptoms. The offender told Dr Rodriguez that panic attacks post-dated the incident. Dr Nielssen reports the likelihood that 'his furious driving took place while [he] was affected by the symptoms of a panic attack''. And later 'the effect of a panic attack is one of the possible reasons for his driving just before the crash.' It seems to be completely incongruous that a panic attack could persist for the whole of the course of the driving which involved multiple impacts and if confined to the driving just before the collision. A panic attack just before the crash does not account for the earlier driving. So I am not satisfied on the balance of probabilities that a panic attack was the reason for the driving and I am not satisfied on the balance of probabilities that a panic had any influence on his driving on this occasion. Indeed, I am satisfied beyond a reasonable doubt that it did not. Additionally, it seems to me to be inherently implausible that a person with anxiety, even in a panic state, would drive for this distance at grossly excessive speeds against the traffic, against road signs to withdraw from some perceived confrontation. The withdrawal or escape was actually effected, if he needed with withdraw or escape, as soon as he left the premises. Furthermore, there is no evidence that the panic condition precludes a driver's control of the vehicle and clearly, there are many explanations which are much more likely for his course of driving. But I deal with the matter simply on the basis of the objective facts which reveal sustained, aggressive, erratic, highly irresponsible and dangerous driving. I do accept that generally mental conditions can impact on culpability. I accept that he has anxiety and depression and OCD and a mental condition may have the effect of reducing moral culpability and requirement for general deterrence and denunciation and that is especially so where it contributes to the offence. I do not consider that the offender had any condition that affected his capacity to choose to drive and to drive and continue to drive in the manner that he obviously did. There is nothing in my view that precluded an appreciation of the gravity of the conduct or the consequences."
His Honour accepted that the applicant was remorseful, that his prospects of rehabilitation were good and that he was unlikely to re-offend. His Honour referred to the guideline judgment of R v Whyte (2002) 55 NSWLR 252; [2002] NSWCCA 343 (at [203]-[204] (Spigelman CJ, Mason P, Barr, Bell and McClellan JJ agreeing)) and said that he did "not see anything typical about this case" and, accordingly, that it had to be dealt with on its own facts.

Further evidence sought to be adduced on appeal

Mr Game SC, who appeared with Ms Khalilizadeh on behalf of the applicant, sought leave to tender further evidence on the appeal. He read two affidavits of Chadi Irani, the solicitor with carriage of the matter, dated 27 July 2020 and 25 February 2021 respectively, and sought to tender a further report of Dr Rodriguez dated 17 June 2020, which was annexed to Mr Irani's first affidavit. Mr Game confirmed that, because of the matters raised in the grounds, Mr Irani no longer had carriage of the matter.

Rulings on objections taken to further evidence sought to be adduced by the applicant

The Crown did not object generally to the further evidence. However, it objected to certain paragraphs in Mr Irani's affidavit of 27 July 2020 in which he gave evidence about his expectation that counsel would seek an adjournment (in paragraph 22) and about his view about what the sentencing judge's reaction to such an application would be (in paragraphs 23 and 24). These paragraphs are irrelevant to the issues in the hearing and are therefore inadmissible. The transcript record speaks for itself.
The Crown also objected to parts of Dr Rodriguez's further report. First, the Crown's objected to Dr Rodriguez's speculation about why the history was recorded as it was in the original report (under the heading "Interview with Mr Crowley" and the answer to question 2). He did not suggest erroneous recording on his part. The objection ought be upheld since it involved speculation and could not assist the Court.
The Crown also objected to Dr Rodriguez's opinion (set out in the answer to the first question and in the answers to questions 3, 4 and 5) that the applicant met the criteria for Panic Disorder and his opinion as to the causes and consequences of the disorder in the applicant. Its ground of objection was that Dr Rodriguez lacked the expertise both to make such a diagnosis and to opine as to its consequences.
Mr Game contended that, if grounds 1, 2 or 3 were upheld, this Court would be obliged to remit the matter to the District Court for sentence since the applicant would not have had a fair hearing on what sentence ought be imposed on him. Mr Game said the purpose of tendering Dr Rodriguez's second report was to demonstrate the evidence which would be adduced at the remitted hearing. Thus, the purpose of the tender in this Court was to demonstrate that, by being denied a fair hearing in the District Court, the applicant had been denied the opportunity to obtain a better result at the rehearing. In other words, this evidence was adduced to demonstrate both that the applicant had suffered practical injustice (in the sense addressed by Gleeson CJ in Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Lam (2003) 214 CLR 1; [2003] HCA 6 at [38]) and that the grant of relief in the form of a remission to the District Court would not be futile.
Section 79 of the Evidence Act provides, in substance, that opinion evidence given by an expert is admissible only if it falls within the expert's area of expertise. However, s 4 of the Evidence Act relevantly provides: "(1) This Act applies to all proceedings in a NSW court, including proceedings that - … (d) subject to subsection (2), relate to sentencing. (2) If such a proceeding relates to sentencing - (a) this Act applies only if the court directs that the law of evidence applies in the proceeding, and (b) if the court specifies in the direction that the law of evidence applies only in relation to specified matters - the direction has effect accordingly. (3) The court must make a direction if - (a) a party to the proceeding applies for such a direction in relation to the proof of a fact, and (b) in the court's opinion, the proceeding involves proof of that fact, and that fact is or will be significant in determining a sentence to be imposed in the proceeding. (4) The court must make a direction if the court considers it appropriate to make such a direction in the interests of justice."
If the appeal were upheld and the case remitted to the District Court, it would be a matter for the sentencing judge to determine whether a direction ought be made that the rules of evidence applied. I am not persuaded that the evidence of Dr Rodriguez as to the diagnosis and its causes and consequences with respect to the applicant ought be excluded by this Court in this context, since it would be open to a sentencing court to refrain from making a direction under s 4 and take such material into account. In these circumstances, I would allow the evidence in for the purposes of the hearing in this Court. In these circumstances, it is not necessary to address the question of the precise parameters of the relative expertise of a psychologist when compared with that of a psychiatrist: cf. R v Peisley (1990) 54 A Crim R 42 at 52 (Wood J); WW v R [2012] NSWCCA 165 at [58] (Hoeben JA, Johnson and Button JJ agreeing).

What occurred prior to the sentence proceedings on 25 October 2019

In his second affidavit (affirmed 25 February 2021), Mr Irani deposed as to the following matters.
On 23 July 2019 Mr Irani engaged Dr Nielssen to prepare a report for the applicant's sentence hearing "for the purposes of assisting the court in sentencing the client and to provide an opinion as to whether there were any psychiatric or psychological mitigating and subjective factors relevant at the time of the commission of the offence for the Judge to consider."
In preparation for the sentence hearing, Mr Irani obtained an affidavit from the applicant's partner as to her recollection of the events on the evening of the offending conduct. This affidavit, sworn 20 August 2019, was tendered in this Court by the Crown in response to the further evidence relied on by the applicant. Mr Irani deposed that this affidavit was the one that had been provided to both Dr Nielssen and Dr Rodriguez (as their reports indicate) but which had not been tendered at the sentence hearing (as her reference was tendered instead). Mr Irani did not give any explanation for the forensic choice to convert the affidavit into a reference. The obvious consequence of this choice was that Ms Blackwell could not be cross-examined on her version.
Of present relevance, Ms Blackwell deposed in her affidavit as follows: "10. The night of the accident we were playing a game with all my siblings and their partners. It was [the applicant]'s turn but it seemed that [the applicant] broke the rules of the game so this was picked up on by the group. He tried to defend his position (that it was within the rules), however, when the group started talking all at once and got a bit loud, saying that he broke the rules and that his turn is over and trying to explain why, [the applicant] appeared uneasy and began to get frustrated. He then said 'Fuck this' and walked away. It seemed to me that they were ganging up on him when they all went against him all at once. 11. I walked inside not long after and he seemed irritated and affected from the situation, with keys in his hand. I tried to take the keys from him but was unsuccessful, as he didn't listen and was not responsive. He was adamant about going for a drive and I just knew that driving would clear his head and make him happy, so I left him."
Mr Irani also deposed to the following in his second affidavit. On 3 October 2019, he received a report from Dr Nielssen, which was subsequently amended, by a further version, dated 22 October 2019, which was served and tendered.
On 4 October 2019, Mr Irani sent an email to Dr Rodriguez requesting a report for the sentence hearing on 25 October 2019. He listed the material attached to the affidavit, which included Dr Nielssen's report of 3 October 2019. The letter included the following: "Family will fund the report because the barrister thinks it's now necessary. Ideally we want to show the court that traumatic brain injury (the assault on him), prior to the incident, coupled with the anxiety and disorders, could explain his behaviour."
On 8 October 2019, Mr Irani emailed a letter of instructions to Dr Rodriguez engaging him to interview the applicant and provide a report for the sentence hearing. He also attached hospital records relating to an assault on the applicant in 2011 in which he had injured his head. The documents attached to the letter included the report of Dr Nielssen dated 3 October 2019, the statement of facts and the ERISP. The letter included the following: "… Please note that our client may have been suffering some kind of neurological or psychiatric condition at the time of driving, resulting from a head injury incurred from a serious assault (in 2011) and from the accident. Could you please assess if this is true and give an opinion about how this condition may have affected his behaviour, reactions, thought process on the day of the incident, and ability to deal with issues in his life and the relevance to this offence? It would be of assistance if you could also specifically address the following (plus other factors you see relevant): ● Whether my client could be developmentally disabled or if there is any history of developmental problems; ● Whether my client was suffering from any neurological or psychological or psychiatric condition(s) at the time of the offence, prior to the offence (history of diagnoses) or is currently suffering from same; ○ Please explain in some detail the effects of the Anxiety with the behaviour on that day (i.e. the connections / nexus) ○ Please explain in some detail the effects of the 2 disorders diagnosed by Dr Nielssen (Panic Disorder and Obsessive Compulsive Disorder), to which they affect decision making/judgment/control and the connection/nexus with the behaviour on that day. … Without affecting your integrity and your opinions as to my client's psyche, we request that you do not discuss my client's version of the facts and please do not quote our questions from this letter. …"
On 9 October 2019, Mr Irani sent a further email to Dr Rodriguez instructing him to proceed "with the forensic psychologist report as requested" and attached affidavits from the applicant's family "which outline the history, and [give] examples of the OCD, anxiety and panic attacks". Mr Irani also noted that there was reference in the reports provided to CT scans of the applicant's brain.

What occurred on the day of the sentence hearing: 25 October 2019

Mr Irani's evidence was that he had not appreciated the discrepancy between the instructions he had received (that the applicant had suffered panic attacks and blackouts since he was a young boy) and the history recorded in Dr Nielssen's report (to the same effect) on the one hand and the history that Dr Rodriguez recorded in his first report (that the applicant had suffered panic attacks only since his incarceration) on the other hand. He deposed that he was first alerted to the discrepancy when the sentencing judge raised it with counsel at the sentence proceedings. At that time, he instructed counsel (Mr Peluso) to ask the applicant (who was in the witness box) about the history he had given to Dr Rodriguez. Mr Irani then communicated by text message with Dr Rodriguez, who was, at the time, in consultation with a patient.
The text messages (which are annexed to Mr Irani's first affidavit) showed that Mr Irani's inquiries elicited the following responses from Dr Rodriguez: "Just had a quick look at my report. That's what he told me at my meeting with him. It doesn't mean that he didn't have a previous history. I just don't know that. … He reported a history of panic attacks only since incarceration. That's what he told me. I may have misheard him. That is correct from my report."
In the exchange, Dr Rodriguez said that, in his field, anxiety attacks were different from panic attacks.
During the short adjournment in the sentence hearing on 25 October 2019, Mr Irani telephoned Dr Rodriguez and was told that he was not available that day or in the following week. Dr Rodriguez told him, "If you want me to come, you'll need to do it the right way."
Mr Irani also confirmed in his affidavit that the Crown had not notified him of its intention to tender the ERISP at the sentence proceedings.

Action taken by the applicant subsequent to the sentence proceedings on 25 October 2019

Mr Irani contacted Dr Rodriguez and asked him to prepare a supplementary report. On 5 June 2020, Dr Rodriguez informed him that he would need to see the applicant again for that purpose. Mr Irani sent a briefing letter.
Dr Rodriguez interviewed the applicant again on 11 June 2020, following which he prepared a further report dated 17 June 2020, which Mr Irani filed in this Court on 7 July 2020. Mr Irani deposed in his affidavit of 27 July 2020 that, had the sentencing judge adjourned the hearing of the sentence proceedings, he would have obtained a further report from Dr Rodriguez, based on what he contended was the correct history: namely, that the applicant had a long history of panic attacks prior to the evening of the offending conduct.
In this report Dr Rodriguez revised his earlier opinion and said as follows: "4. If your view to Question 3 has changed, in what way, if at all, does that affect your opinion/clinical formulation (as contained at p9 of your earlier report, onwards) In my opinion, his diagnosis of Panic Disorder highlights a vulnerability for fleeing a situation in the presence of severe anxiety. It is therefore possible that he experienced a panic attack at the time of the offence and this state of mind contributed to his erratic behaviour. It is highly possible that he had a panic attack whilst playing cards with his friends when he was told that he was 'doing the wrong thing', experienced a flooding of emotions upon perceiving negative evaluation, his interpretation became catastrophic, and it affected his decision-making. It appears that he became so distraught by anxiety that he fled the situation as he has on many other occasions throughout his life. Patients with Panic Disorder often need to flee a situation to calm down and reset their baseline function. Too much stimulus is debilitating for these patients. They simply need to overcome insurmountable anxiety and the only possible way is to withdraw from of a situation, usually quickly and without much thought. From the history available to me, there is no evidence of instrumentality or planning to hurt others. It is therefore plausible that Mr Crowley drove his car in the midst of a panic attack; and in this state of hyperarousal along with the disinhibiting effects of alcohol use, was unable to appreciate the ramifications of driving in such a dangerous fashion. In my opinion, he was showing signs of impaired executive function (see Appendix 2) which prevented him from inhibiting such a drastic response at the time." [Emphasis added.]

The parties' submissions

Mr Game argued that the sentence proceedings had miscarried, in substance, because of the incompetence of the applicant's legal representatives. He accepted that it was forensically necessary for the applicant to give evidence on oath at the hearing in order to prove the factual substratum to the reports and that, therefore, he would have been cross-examined by the Crown on the basis of prior inconsistent statements given in his ERISP. Further, he accepted that the discrepancies between the ERISP and the evidence could not be explored in examination in chief because they were relevant only to credibility.
However, he submitted that the failure of the applicant's legal representatives to detect what he contended was an obvious inaccuracy of the history recorded by Dr Rodriguez (that he only suffered panic attacks after being incarcerated) had resulted in his Honour forming an unduly poor view of the applicant's reliability as a historian. Further, he contended that the applicant was deprived of the opportunity to establish that his decision to drive had been precipitated by a panic attack and have his moral culpability reduced accordingly.
Mr Game was critical of the applicant's legal representatives in several respects. He contended that they ought to have detected the inconsistency between the history recorded by Dr Rodriguez as to when the panic attacks began and dealt with it in the applicant's evidence in chief, if it had not been corrected earlier. He also submitted that they ought to have reminded the applicant of the contents of his ERISP before he gave evidence, because it contained prior statements which were inconsistent with the histories he had given to Dr Nielssen and Dr Rodriguez. Further, he submitted that they should have made a formal adjournment application on the day of the sentence hearing.
The Crown responded by submitting that the conclusion that the applicant was a poor historian was, in effect, inevitable because the version the applicant had given to police about two months after the incident was inconsistent not only with his evidence at the sentence hearing but also with the versions he had given to Dr Nielssen and to Dr Rodriguez.
The Crown submitted that there was no real basis for concluding that there had been any practical injustice because the issues for the applicant at the hearing before the sentencing judge would remain if the matter were remitted. He submitted that Ms Blackwell's affidavit (which was not used at the sentence hearing before his Honour) provided another basis on which to impugn the applicant's credit since the version of what had precipitated the applicant's departure in his vehicle on the evening of the offending conduct was at odds with his having had a panic attack immediately prior to getting into the vehicle.
Further, the Crown submitted that, whatever discrepancies there had been between the history of panic attacks given to Dr Nielssen, and otherwise established by the evidence and the (inaccurate) history given to Dr Rodriguez, they were immaterial as his Honour was prepared to sentence the applicant on the basis that he did have a history of panic attacks and that these affected his mental health. The Crown contended that there was no evidence to support the proposition that the applicant could have driven for any distance, much less the distance he in fact drove, when in the throes of a panic attack. It submitted that any deficiency in Dr Rodriguez's report was not replicated in Dr Nielssen's report and that Dr Nielssen's evidence had been accepted by his Honour. The Crown submitted that, if this Court were to remit the matter, the applicant would still be found to be an unreliable historian, based on the discrepancies between what he told police and his more recent versions. It contended that the Crown case, if the matter were remitted, would be fortified by the affidavit evidence of Ms Blackwell.

Ground 1

Before turning to the specific circumstances relied upon, I propose to address ground 1 generally.
The issue of what the applicant told Dr Rodriguez about the onset of panic attacks took some time in the sentence hearing and was apparently regarded as an "important point" by his Honour at the time, and led to the applicant's legal representatives foreshadowing that Dr Rodriguez ought be called to clarify the position. However, this issue was ultimately of little moment when regard is had to the reasons for sentence.
In substance, the sentencing judge accepted that the applicant had a history of panic attacks, as established by other evidence, including from the applicant's mother. His Honour was not satisfied that the applicant had actually suffered a panic attack immediately prior to his departure on the evening of the offending conduct, in part because of the description given by Ms Blackwell in her reference (which was more favourable to the applicant than the version given in her affidavit), but also because of what the applicant had told police and the fact that he had had not identified anything when police gave him the opportunity to identify any tension at the time of his departure which might have affected his mental state.
Further, his Honour noted, correctly, that whether or not the offender had a history of panic attacks, Dr Rodriguez did not, in his report, associate any panic attack with his driving and the applicant did not, when being interviewed by Dr Rodriguez, assert any connection. His Honour also reasoned that any panic attack could not have persisted throughout the course of driving because of the length of the driving and the manoeuvres undertaken. Further, the sentencing judge was not satisfied on the balance of probabilities that a panic attack had influenced the applicant to drive in the first place. His Honour noted that Dr Nielssen put the prospect that the applicant had been affected by an acute panic attack just before the crash as a result of anxiety suffered when he left the premises no higher than that it was "one possible reason for his driving behaviour just before the crash". It was open to his Honour to regard this as insufficient to prove the mitigating factor on the balance of probabilities.
The issue whether the applicant's decision to drive was precipitated by a panic attack was considered by Dr Nielssen who said that it seemed likely that the applicant left his partner's place because of anxiety symptoms and that this might have led to a panic attack "just before the crash". It was open to his Honour to regard the expression "likely" as being no more than a speculative possibility that the applicant had a panic attack. However, even if he had a panic attack immediately before the crash (as Dr Nielssen hypothesised as being a possibility), he must have driven a considerable distance, both furiously and without suffering from a panic attack. Moreover, the question whether it was likely that the applicant suffered from anxiety before leaving his partner's residence was one to be determined, having regard to the balance of the evidence, including what the applicant himself said to police in June 2018.
The principles as to onus of proof in sentencing are well established in that it is settled law that matters of aggravation need to be proved by the Crown beyond reasonable doubt and matters of aggravation need to be proved by the offender only on the balance of probabilities: The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54 at [27] (Gleeson CJ, Gaudron, Hayne and Callinan JJ). However, as Gleeson CJ said in Weininger v The Queen (2003) 212 CLR 629; [2003] HCA 14 at [19]: "[S]ome disputed issues of fact cannot be resolved in a way that goes either to increase or to decrease the sentence that is to be imposed. There may be issues which the material available to the sentencing judge will not permit the judge to resolve in that way."
In the present case, the precise chronology could not be known (except in so far as the path and direction of his vehicle could be established by other evidence), given the unreliability of the applicant's evidence as to what occurred, by reason of the inconsistency of his versions and also as to the amnesia which prevented him from recalling either the driving or the collision. Although his Honour found beyond reasonable doubt that panic did not influence the applicant's driving, this was, in my view, not a necessary finding since his Honour had already found that matter on the balance of probabilities. This finding was open to his Honour on the evidence. To the extent to which it was influenced by credit findings, the statement to Dr Rodriguez about the onset of panic attacks was immaterial. The applicant had shown himself to be an unreliable historian by the time he spoke to Dr Nielssen on 30 July 2019 and 1 October 2019 and gave a different version to the one given to police on 4 June 2018.
The difficulty with the applicant's submission that he was incompetently represented is that there are substantial limitations on what a legal representative can do when a client departs in a significant way from what he or she said previously. The narrative derived from the further evidence, which is set out above, demonstrates the lengths to which the applicant's legal representatives went to obtain some basis for mitigation, either by reason of panic attacks or the acquired brain injury arising from the previous assault. They obtained evidence from Dr Nielssen, which was not as favourable as they might have hoped, which led them to engage Dr Rodriguez in an attempt to improve the position.
What they could not do was alter what the applicant had said to police in the ERISP or, if the applicant was to rely on Dr Nielssen's report, what Dr Nielssen recorded that the applicant had told him. Nor could they change the incontrovertible facts (which were agreed) that the applicant had driven a significant distance at excessive speed and in a dangerous manner before the ultimate collision. The skill and co-ordination required to keep such a motor vehicle on the road (albeit on the wrong side of the carriageway and, for some distance, going the wrong way) for such a distance and over such a route was patently inconsistent with anything that might affect motor function beyond intoxication and therefore inconsistent with suffering a panic attack. There was no expert evidence on this matter.
Although it might be possible to criticise the applicant's legal representatives for not detecting the inconsistency between the history recorded by Dr Nielssen and that recorded by Dr Rodriguez; or failing to make an application for an adjournment (as opposed to foreshadowing it as a possibility), I am not satisfied that these matters could have affected the ultimate result. Were this Court to remit the matter, the evidence would be largely the same or to the same effect. Dr Rodriguez's further report is insufficient to assist the applicant in terms of a panic attack accounting for his decision to drive or the collision, since those matters would depend on his history, which must be regarded as unreliable, having regard to the version given to police.
I do not discern any error in the sentencing judge's refusal to adjourn the matter to permit Dr Rodriguez to clarify the history he had been given. As is evident from the reasons for sentence, this matter was not, ultimately, material to the sentence imposed (notwithstanding its apparent significance in the course of the sentence hearing before his Honour had had a chance to read all the material). Further, the sentencing judge was entitled to ascribe importance to finality and to take into account the benefits of imposing the sentence, as far as the family of the deceased and the survivors and their families were concerned. The applicant had had the opportunity to have the sentencing hearing and to adduce evidence. The reason for the proposed adjournment was not such as to make it erroneous to refuse it.
I propose, in so far as it is necessary, and having regard to what I have said above, to address the individual circumstances relied on by the applicant.

Circumstance 1: The sentencing judge indicating that he was not prepared to adjourn the matter for the purposes of obtaining further evidence, leading to a reasonable apprehension that the matter would not be adjourned for that purpose.

I accept that the sentencing judge indicated that he was not inclined to adjourn the matter. Although no formal adjournment application was made, I accept that there was a reasonable apprehension that if nothing further was forthcoming as to why the matter ought be adjourned, the matter would not be adjourned. The sentencing judge had effectively indicated that he would not adjourn the matter for an apparently indefinite period (given that Dr Rodriguez was not available the following week and there was no indication as to when he would become available). I do not regard this circumstance as giving rise to any procedural unfairness.

Circumstance 2: The applicant's representatives being unaware of the inconsistency regarding the applicant's panic attacks until the matter was drawn to their attention by the sentencing judge.

Although I accept Mr Irani's evidence that he was not aware of the discrepancy in the histories recorded by Dr Nielssen and Dr Rodriguez, there is no evidence from Mr Peluso, who appeared on behalf of the applicant. Had Mr Peluso been aware of this, he could have asked the applicant in chief as to whether he had in fact told Dr Rodriguez that he had a history of panic attacks prior to his incarceration before his Honour raised the inconsistency. However, as his Honour raised the matter early in the applicant's evidence in chief and directed Mr Peluso's attention to the passage which appeared to be inconsistent, Mr Peluso was given the opportunity to have the applicant correct the history as a matter of underlying fact. Because this issue was ultimately of no moment, it did not give rise to any unfairness to the applicant. Further, there was no suggestion that panic attacks were either a recent invention on the part of the applicant or a recent development as Dr Nielssen had recorded a prior history of them and the applicant's mother's evidence established the prior history in any event.

Circumstance 3: Upon obtaining further evidence from Dr Rodriguez on the contested subject, resolving and clarifying the inconsistencies between Dr Rodriguez and Dr Nielssen [sic].

The new report from Dr Rodriguez, which was obtained after the applicant had been sentenced, contained a "corrected" history of panic attacks in that it recorded the applicant's long history of panic attacks. This accorded with the history given to Dr Nielssen in July and October 2019, which was before his Honour in any event. Furthermore, as set out above, the sentencing judge accepted Dr Nielssen's opinion and the history given to him, except in so far as it was at odds with what the applicant had said to police in June 2018.
It is also of significance that the new report of Dr Rodriguez dated 17 June 2020 did not rise beyond the level of possibility or plausibility on the issue of a connection between the offending conduct and the applicant's panic attacks. On this basis, there is no reason to infer that it would have made any material difference to the sentencing judge's decision, since his Honour considered that possibility in any event.

Circumstance 4: The sentencing judge placing significant reliance upon the detail contained [in the] ERISP in drawing extensive adverse inferences against the applicant, based on inconsistencies between the account therein and other accounts given, in circumstances where the basis upon which the document was provided was not formally stated nor clarified.

As referred to above, Mr Game accepted both that the ERISP was admissible on the sentence hearing and that the applicant was, in effect, required to give evidence on sentence in order to prove matters such as remorse and the histories given to experts. Once the ERISP was tendered (as I am satisfied it was and that this was common ground), it was in evidence for all purposes. Mr Game did not suggest any particular limitation which he contended Mr Peluso ought to have applied for. While the cross-examiner could have taken the applicant through all the statements he made to the police and asked him to explain why they were, in some cases, at odds with his evidence or the histories he had given or his oral evidence at the hearing, it was not necessary that this be done to fulfil the requirements of procedural fairness.
The transcript indicates that the applicant accepted that he was interviewed by police and that he had given the answers recorded in the ERISP. Some of these answers painted a different picture from the versions he gave later. What the cross-examiner did was sufficient to accord natural justice since this approach put the applicant squarely on notice that his credibility was sought to be impugned on the basis of prior inconsistent statements and that the Crown would contend that the version he had given two months after the incident was more reliable. It was then a forensic decision for Mr Peluso to decide whether to re-examine the applicant on the inconsistencies, with a view to obtaining an explanation for them (a potentially dangerous forensic course) or to leave the matter where it was. He did the latter. I am not satisfied that this was other than a reasonable forensic decision in the circumstances or that it gave rise to any unfairness to the applicant. The applicant was the author of his own predicament by committing himself to one version to police (who gave him ample opportunity to explain himself) and then seeking to depart from it later. For the reasons given above, his legal advisers cannot be criticised for being unable to remedy this situation.

Circumstance 5: Defence counsel not being on notice of the adverse inferences drawn by the sentencing judge from the contents of the ERISP.

It was plain from the Crown's cross-examination that the Crown sought that an adverse inference be drawn that the applicant was not a reliable historian because of the discrepancy between the ERISP and subsequent accounts. Further, the Crown submitted that the account given to police was accurate (and more reliable because of its relative proximity to the actual events) and that there was no mental condition which mitigated the offending conduct as the applicant left the premises to visit a friend in circumstances where there was no particular tension and no suggestion of a panic attack. In these circumstances, I am not persuaded that defence counsel was not on notice of the prospect that the sentencing judge would draw those inferences. Indeed, one of the principal purposes of cross-examination is to provide procedural fairness, including by signalling submissions that will be made as to inferences that could be drawn by the judge: Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] 1 NSWLR 1 at 16C-E (Hunt J).

Circumstance 6: The inconsistencies between those accounts not being put to the applicant properly (or at all) in cross-examination.

For the reasons given above, I do not regard the Crown as having failed to put the statements to the applicant. It was plain from the cross-examination that the Crown relied on the fact of there being inconsistent statements as to what had happened immediately before the applicant left his partner's premises.

Circumstance 7: The applicant was incompetently represented at the sentence proceedings by his legal representatives.

This matter has already been addressed above. For the reasons already given, I am not persuaded that this circumstance has been made out.

Ground 2: alleged denial of procedural fairness arising from inferences drawn from the ERISP without notice to defence counsel

This ground repeats circumstance 5 in ground 1 and does not need to be addressed further.

Ground 3: alleged miscarriage of proceedings in the absence of new evidence regarding the applicant's mental state

The question whether the applicant's mental state affected either his decision to drive, his driving or his conduct at the time of the collision was one to be answered by reference to factual evidence of what occurred immediately before he drove the vehicle, the route, length and manner of his driving, and expert evidence about those facts and circumstances. The applicant could not recall the time between walking to his car and being in the ambulance after the collision. The manner of his driving and his route was the subject of the agreed facts.
The evidence about his decision to drive came from the applicant and his partner. In the first version he gave, there was no tension which led him to drive. In his later versions, the applicant said that he was suffering anxiety (which was consistent with a panic attack) and in a later version (in the reference, which was tendered), Ms Blackwell said that the applicant appeared to be uncomfortable, had a look of panic and had "zoned out".
Dr Nielssen (in his report which was before the sentencing judge) said that it was possible that he was suffering anxiety (and an associated panic attack) just before the collision. Dr Rodriguez said (in his latest report) that it was possible that he was suffering anxiety before leaving his partner's home in his car. No expert evidence provided any support for a finding that driving of the type and length engaged in by the applicant was consistent with a prolonged panic attack.
The narrative set out above demonstrates the extent to which the applicant's solicitors endeavoured to obtain evidence, whether of the effect of panic attacks, or of the acquired brain injury, which would mitigate the offending conduct. I am not persuaded that the further report of Dr Rodriguez makes any material change to the evidence which had already been adduced on behalf of the applicant before the sentencing judge.

Ground 4: alleged manifest excess of the sentence

In order to make out ground 4, the applicant must demonstrate that the aggregate sentence was unreasonable or plainly unjust: Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [3]-[4] and [6] (Gleeson CJ and Hayne J); Markarian v The Queen (2005) 228 CLR; [2005] HCA 25 at [25] (Gleeson CJ, Gummow, Hayne and Callinan JJ). Such a finding is a conclusion and does not depend on the demonstration of patent error. Although the indicative sentences are relevant because they provide some indication of the basis for the aggregate sentence, they are not amenable to appeal: see the principles summarised in [40] of JM v R [2014] NSWCCA 297; (2014) 246 A Crim R 528 (R A Hulme J, with whom Hoeben CJ at CL and I agreed).
There was considerable notional concurrency incorporated in the aggregate sentence (notional because the overlap did not need to be expressed, as would have been required, before the enactment of s 53A of the Crimes (Sentencing Procedure) Act), which had regard to the circumstance that the offences were committed in a single episode within a short period of time. There was some degree of notional accumulation to take account of the circumstances that one person had been killed and three others had suffered grievous bodily harm.
There is considerable difficulty, as the sentencing judge noted in his reasons, in making comparisons with other cases in areas such as the present. The differences between the instant case and the typical case outlined in the guideline judgment of R v Whyte were significant. Further, comparisons between sentences for manslaughter are apt to be unhelpful because of the myriad situations in which the offence can be committed, which have led to the offence being described as "protean": R v Blacklidge (Court of Criminal Appeal (NSW), Gleeson CJ, Grove and Ireland JJ agreeing, 12 December 1995, unrep) at 2-3 and R v Forbes [2005] NSWCCA 377; 160 A Crim R 1 at [133] (Spigelman CJ, McClellan CJ at CL and Hall J agreeing).
The present offending was characterised by its length in terms of time and distance, the highly excessive speed at which the applicant was travelling and that he was, for a significant portion of his journey, driving against, and in the same lane as, oncoming traffic in circumstances where those he encountered would not have been expecting a car coming towards them and would have little or no opportunity to avoid that car. It appears remarkable that the journey continued over such a distance before the applicant's vehicle collided with another (although it side-swiped three other vehicles prior to the fatal collision). At the speed at which he was travelling, it was nigh inevitable that those in vehicles with which he collided would suffer grievous bodily harm if not death, as occurred in the present case. It was also inevitable that, if his vehicle collided with another, the forces would be significant, given that a collision was likely to be head-on when he was driving at high speed against the permissible direction of travel.
It is important that a sentence for an unlawful homicide reflect that a human life has been taken. The injuries sustained by the three other persons were, as the plea implied, grievous. The survivors will have to live with the physical and emotional scars left by the offending conduct for the rest of their lives.
Mr Game referred to other cases where lesser sentences were imposed. I have considered each of those cases, although they are of limited assistance in this context: Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [53]-[54] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).
It is evident from the reasons that the sentencing judge appropriately took into account the discount for the plea of guilty, the applicant's youth, his mental conditions, the sincerity of his remorse, his prospects of rehabilitation and the unlikelihood that he would ever re-offend. However, these favourable subjective matters had to be weighed in the balance against the objective seriousness of the offending.
Notwithstanding the submissions of Mr Game, I am not satisfied that it was not open to the sentencing judge to impose the aggregate sentence which was in fact imposed nor that it was either unreasonable or plainly unjust. Accordingly, ground 4 has not been made out.

Proposed orders

For the following reasons, I propose the following orders: 1. Grant leave to appeal against sentence. 2. Dismiss the appeal.

Amendments 24 March 2021 - Name of applicant's instructing solicitor corrected - coversheet 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: 24 March 2021

Crimes Act 1900(NSW)ss 18, 52A

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