Davidson v R

1. The applicant seeks leave to appeal against his sentence on the following grounds: 1. The sentencing judge erred in holding that there was no causal link between the applicant's Attention Deficit Hyperactivity Disorder (ADHD) and the commission of the offences; and 2. The sentence imposed is manifestly excessive.

The evidence tendered

1. The Crown tendered a statement of agreed facts. The Crown also tendered a map of the area in which the offending occurred; a Computer Assisted Design (CAD) map; CCTV footage of the applicant's driving which was shown in court in the sentence hearing; and the applicant's criminal and custodial histories (which showed that he had no criminal history although there were some traffic infringements).
2. The Crown also tendered nine victim impact statements, some of which were read in Court.
3. The applicant tendered two reports by Dr Richard Furst, forensic psychiatrist; a letter of apology from the applicant to the Court; references from each of his parents and his employer and an affidavit of his solicitor, who was not cross-examined. The applicant did not give evidence at the sentence hearing.
4. To the extent relevant this evidence will be summarised later in these reasons.

The facts found by the sentencing judge (largely based on the agreed facts)

1. The following narrative is based on the statement of agreed facts which was reflected in the sentencing judge's reasons (and is largely derived from the Crown's submissions).

The applicant's consumption of alcohol and prohibited drugs

1. On 1 February 2020, the applicant, with his friends and flatmates, including Daniel Newman and Daniel Smith, drank vodka cruisers, beer and rum. The applicant commenced drinking at about 7:00am and had his last drink at about 7:40pm. He had also drunk the night before and did not eat while drinking on 1 February 2020. Sometime after 11:00am, he snorted cocaine. Sometime after 4:45pm, he also used a quantity of 3,4-methylenedioxymethamphetamine (MDMA).

The trip to the petrol station

1. At some stage in the evening of 1 February 2020, there was a discussion about the applicant and one of his flatmates (Mr Newman) owing money to the other flatmate (Mr Smith). At 7:30pm, the applicant and Mr Newman left their house in the applicant's Mitsubishi Triton dual cab 4-wheel-drive utility vehicle. The applicant drove to a liquor store where they made a purchase and withdrew $120 in cash. The applicant then drove sharply into the driveway of a petrol station. He parked and waited for Mr Newman who went to the store. While Mr Newman was in the store, the applicant sounded his horn repeatedly. On Mr Newman's return, the applicant accelerated sharply, left the petrol station at speed and sped through a red light as he turned right onto Statham Avenue, Oatlands. His driving was depicted on the CCTV footage. The conditions were dry, and the road was in a good condition.

The return journey

1. At about 7:45pm, the applicant turned onto Bettington Road, Oatlands and travelled south. Angele Wakim was also driving south along Bettington Road, at about 60kph with one adult and two child passengers in her car. She saw the applicant drive very close to the rear of her vehicle and then swerve from side to side in an effort to get past her. She saw that both males in the car were shirtless and laughing. The sentencing judge described the applicant's manner of driving as "menacing".
2. As Ms Wakim approached a roundabout, at the corner of Bettington Road and Felton Road, the applicant crossed on to the incorrect side of the road, and overtook her car. As the applicant passed Ms Wakim, Mr Newman stuck his middle finger up at her. She then watched the applicant briefly stop his vehicle at the roundabout on the wrong side of the road while a car exited the roundabout. The applicant then drove through the roundabout in an anti-clockwise direction, on the wrong side of the road. Two other witnesses in a motor vehicle, Chief Inspector Hall and Ms Hall, also saw this occur. Ms Hall observed the applicant laughing, being quite animated and also sticking his middle finger up. Chief Inspector Hall saw a motor bike swerve sharply towards the gutter as the applicant drove through the roundabout. He also observed the applicant's vehicle being driven at high speed on the wrong side of the road and rocking from side to side.
3. When the applicant came to a red light at an intersection with Pennant Hills Road, he edged his vehicle across the stop line, looked in both directions, and then accelerated abruptly, crossing four lanes of traffic against the red light. On the basis of the CCTV footage, at least six vehicles passed in front of the applicant's vehicle on a green light. The red light at that intersection lasted only 40-60 seconds.
4. The applicant travelled south on Bettington Road, which sloped slightly downward as he approached a right-hand bend in the road. His Honour observed that, at this stage, the applicant was driving significantly faster than the sign-posted speed limit of 50kph, as revealed by his appearing as just a "flash" on the CCTV footage. Expert analysis of the CCTV footage resulted in a conservative estimate of the applicant's speed at this point (the right-hand bend) of at 122-125kph. Expert analysts estimated that a vehicle on the applicant's trajectory could accommodate no more than a corner speed of approximately 75kph on the approaching bend. Data retrieved from the applicant's vehicle revealed a maximum speed of 133kph prior to reaching the bend, with a slight deceleration to 111kph at the point of impact. Analysis of the vehicle data revealed that, 4.5 seconds prior to impact, the accelerator was completely depressed and that the brake pedal was not engaged any time in the 5 seconds before the impact.

The victims

1. The seven victims, who were siblings and cousins, had left a family function to get some ice-cream. They were walking slowly along the footpath of Bettington Road in a southerly direction on the left (eastern) side of the road. The CCTV footage depicted the victims walking along the footpath, where, at about 7:50pm, approximately ten minutes before sunset, as his Honour found, they were behaving lawfully and walking where they were entitled to be.

The loss of control of the vehicle

1. At about 7:50pm, the applicant entered the right-hand bend in the road and lost control of the vehicle due to the excessive speed. The total length of the journey from the applicant's home to the service station and back to where the collision occurred was approximately 5.3km.

The consequences

1. The applicant's vehicle mounted the kerb and struck all seven children from behind, dragging some of them along a cyclone fence that bordered a golf course.
2. Four of the seven children were killed almost instantly. They were 12-year-old Angelina Abdallah, 8-year-old Sienna Abdallah, 13-year-old Antony Abdallah, and 11-year-old Veronique Sakr. The other three children were injured, 11-year-old Charbel Kassas critically.
3. Neither the applicant nor Mr Newman was injured. When they got out of the vehicle, Mr Newman attended to Charbel Kassas. The applicant appeared distressed and said, "What have I done? I've killed people. I am going to gaol."
4. Members of the community rushed to the scene of the collision and assisted. Emergency services arrived soon afterwards. The applicant was arrested and has remained in custody ever since.
5. It was not long before family members came to the scene and were confronted with the terrible sight of four corpses and three injured children. His Honour described the injuries to the dead children as "horrific". Details of the injuries were set out in detail in the agreed facts and judgment on sentence. The direct cause of death of each of the four children was multiple blunt force injuries.
6. As referred to above, Charbel Kassas, aged 11, survived but was in a critical condition on impact. He was taken to Westmead Children's Hospital and required surgery for a severe brain injury and high impact trauma to the head and face. He spent 13 days in the intensive care unit. Expert opinion confirmed that he sustained a significant injury to the brain with likely long-term impacts on his cognitive and social abilities, resulting in lifelong disabilities and poor quality of life.
7. Mabelle Kassas, aged 13, sustained a 3cm deep laceration to her right thigh requiring sutures. She also experienced pain and swelling. Liana Abdallah, aged 10, sustained a 5cm laceration to her right eyebrow and pain. An expert opined that she will have a significant facial scar.

The level of the applicant's intoxication

1. A roadside breath test conducted at 8:33pm returned a high-range reading of 0.182g of alcohol in 210 litres of breath which measures blood alcohol concentration (BAC). At 9:35pm, a breath analyser at a police station returned a high range BAC reading of 0.150. A blood and urine analysis performed at 10:45pm indicated a BAC reading of 0.142. That analysis also indicated 0.12mg/litre of a cocaine by-product, 0.13mg/litre of MDMA and less than 0.01mg/litre of 3,4-methylenedioxyamphetamine (MDA).
2. Expert evidence confirmed that the applicant would have had "very substantial impairment of driving skills given the blood alcohol concentration … at the time of collision". Any effect from the MDMA would have been minor compared to the alcohol. The effect of the cocaine was uncertain.

The reports of Dr Furst

1. Dr Furst noted that the applicant had been diagnosed with ADHD when he was five years old and reported that when the applicant was adolescent, several attempts made to treat him with Ritalin and Dexamphetamine were discontinued due to side effects (facial tics).
2. When the applicant was 19 years old, his sister died from cystic fibrosis. Dr Furst reported that the applicant engaged in binge drinking for a year or two but his alcohol consumption became more controlled by the time he was about 21.
3. Between the ages of 21 and 26, the applicant came to tolerate the ADHD medication but stopped taking it for fear of becoming dependent. In 2019, the applicant began taking this medication again but he abused it.
4. Between 2017 and 2019, the applicant used MDMA every 6 months or so.
5. The applicant told Dr Furst that he had no idea why he was driving at the time of the offences, noting he was never "silly" enough to drive after drinking and after consuming drugs often waited three to four days before driving. He expressed remorse to Dr Furst and said he had been seeing the prison chaplain and was in segregation.
6. In his first report, Dr Furst opined that the applicant met the diagnostic criteria for ADHD and Alcohol Use Disorder (Binge Pattern) and that the applicant suffered from ADHD at the time of the offending. Dr Furst said that impulsivity is a "core symptom of ADHD", which was characterised by doing things without thinking through the harmful consequences and "[the applicant's] decision to drive in the first place … whilst intoxicated, was probably also influenced by his ADHD."
7. Dr Furst opined that: "… although the primary cause of his aggravated dangerous driving was probably his intoxication with alcohol … I am of the opinion that his ADHD pre-disposed [him] to drink excessively in the first place".
8. Mr Furst recorded that the applicant had told him: "I have never been that silly to get behind the wheel [after drinking or using drugs] … If I went to a rave, I'd give 3 or 4 days clearance [before driving again] … I don't understand why."
9. Dr Furst was not required for cross-examination.

The references tendered on behalf of the applicant

1. The applicant's father, in a reference dated 7 February 2021, stated that: "I believe [the offences are] totally out of character. His manner of driving and actions that day are beyond my comprehension. … I have never known [the applicant] to drive this way and I have drummed into him to never drink and drive. When living at home he would ring me to pick him up or he would use an Uber driver service if he had been drinking alcohol … He would not normally drink and drive."
2. The applicant's mother stated in her reference that, "[the applicant] would not normally drink and drive and clearly he was not in his right mind".
3. In a reference tendered at the sentence hearing, the applicant's employer, Leigh Smart, said that the applicant's behaviour was out of character and there had been no instances of alcohol or drug use while driving. Mr Smart said that the applicant worked as a truck driver in a heavily regulated industry in which the applicant would be subject to regular drug and alcohol testing, such as when stopping at road safety stations. Mr Smart also said that the employer had policies and procedures relating to alcohol consumption with which the applicant had always abided. Mr Smart said that, if there was alcohol present, the applicant planned ahead and did not drive, using Uber drivers and taxis instead. Mr Smart remembered one occasion when the applicant helped with a charity convoy for drought relief and refused alcohol at a "Thank you" event afterwards, as he knew he would be driving the next morning. Mr Smart said that the applicant "had a clear understanding of his responsibility for himself and others on the road".
4. None of these references had been provided to Dr Furst.

The parties' submissions to the sentencing judge

1. The parties relied on written and oral submissions at the sentence hearing.

The Crown's submissions

1. The Crown included, as an appendix to its submissions, a 6-page digest of 10 cases of road-related manslaughter. None of the cases was said to be comparable.
2. The Crown submitted that the objective seriousness of all sequences apart from 15 and 16 (for which the objective seriousness was in the mid-to-high range) was high. In support of this submission, the Crown relied on the very substantial level of intoxication, the significant excess of speed, the manner of driving, the length of the journey and the number of road-users put in danger. The Crown submitted the applicant's moral culpability was "extreme" because his conduct exhibited a complete abandonment of responsibility which put a significant number of lives at risk and made tragedy "almost inevitable".
3. The Crown submitted that the following factors in the Crimes (Sentencing Procedure) Act 1999 (NSW) (the Act) were relevant to an assessment of objective seriousness but should not be double-counted as aggravating factors: 1. s 21A(2)(g) of the Act (substantial loss and damage); 2. s 21A(2)(i) of the Act (offence committed without regard to public safety); and 3. s 21A(2)(ib) (the offence involved a grave risk of death to other persons).
4. The Crown requested that, pursuant to s 30E(3) of the Act, the victim impact statements be taken into account on the basis that the harm done to the family is an aspect of the harm done to the community.
5. Further, the Crown relied on the references of the applicant's parents and employer, to the effect that the applicant was aware of his responsibility not to drive when consuming alcohol and had displayed the maturity to understand the consequences of his actions and act accordingly.
6. The Crown argued that Dr Furst's evidence merely linked the applicant's ADHD to his intoxication, which could not amount to mitigation. To the extent that Dr Furst also linked the applicant's ADHD to the decision to drive in the first place, the Crown submitted that Dr Furst did not suggest that the applicant's ADHD also influenced his decision to drive dangerously or that he drove without knowing what he was doing or appreciating the gravity of his actions.
7. The Crown challenged Dr Furst's opinion by submitting, first, that it was based on an unreliable history given to him by the applicant that he had no memory of his conduct when driving and, second, that Dr Furst had not been privy to the significant information in the references from his parents and employer about the applicant's demonstrated and long-standing capacity to decide to drive only when he was not intoxicated and, when intoxicated, decide not to drive.

The applicant's submissions

1. The applicant's counsel provided seven cases for "judicial reflection" but did not contend that any were comparable.
2. He submitted that the consequences of the impact (the deaths and injuries to the children) were not the sole determinants of objective seriousness and that the factors set out in the guideline judgments of R v Whyte (2002) 55 NSWLR 252; [2002] NSWCCA 343 (Whyte) and R v Jurisic (1998) 45 NSWLR 209 (Jurisic) were informative. He submitted that objective seriousness of the manslaughter offences was between the high end of the mid-range and the high range; the aggravated dangerous driving offence was at the high end of the mid-range, and the cause bodily harm offences were at the "mid-to-high mid-range".
3. The applicant's counsel submitted that Dr Furst's evidence established a material causal link between the applicant's ADHD and the offending, which reduced the applicant's moral culpability.
4. The offender's counsel relied on the lack of planning as a mitigating factor under s 21A(3)(b) of the Act.

The facts

1. The factual findings made by the sentencing judge as to the circumstances of the offending are set out in the above narrative.

Moral culpability

1. When assessing the applicant's moral culpability, his Honour found that the agreed facts disclosed "an horrific example of unlawful and dangerous conduct and gross negligence … in [the applicant's] use of the subject motor vehicle in which he demonstrated no regard for the safety of any other road users including his victims".
2. His Honour found that the applicant's conduct amounted to both unlawful and dangerous conduct and gross negligence in the context of the manslaughter offences. The sentencing judge found that: "[The applicant's] dangerous and aggressive driving behaviour was sustained over a significant period up to the tragic impact of his vehicle with the seven child victims as they walked along a footpath adjacent to the road where the offender lost control. He drove in this egregious manner whilst impaired from the ingestion of alcohol and after having ingested illicit drugs".
3. His Honour found that the manner of the applicant's driving "was such that tragedy was inevitable; the magnitude of the tragedy though extends to the unimaginable". His Honour found the applicant's moral culpability to be high as he had abandoned all responsibility.

Objective seriousness

1. The sentencing judge found that all of the offences fell well above the midrange of objective seriousness. His Honour found that the offences of manslaughter (sequences 1 to 4) fell "near to the high end of the range", while the aggravated dangerous driving offence (sequence 26) sat marginally below the manslaughter offences. The two offences of bodily harm by misconduct (sequences 15 and 16) sat marginally below the aggravated dangerous driving offence.
2. In assessing objective seriousness, his Honour specifically referred to the course of driving undertaken up to the collision, the length of the journey and the number of other members of the community, including the victims, who were put at risk by the applicant. His Honour also referred to the applicant's manner of driving, which included menacing behaviour and had no regard to public safety.
3. His Honour observed that the Crown's description of the applicant's moral culpability as "extreme" was, perhaps, another way of expressing what his Honour had found.
4. In assessing objective seriousness, his Honour noted the applicant's submission "that there is but one sequence of driving with the tragic consequence wrought in respect of each of the victims". However, his Honour said: "[T]he assessment of the conduct to which each individual charge is referable requires appropriate weight to be given to the tragic consequences for each of the victims including the extent of their horrific injuries".
5. His Honour expressly had regard to the victim impact statements when determining the harm to the community.

Pleas of guilty and remorse

1. The sentencing judge accepted that the applicant was entitled to a 25% discount for the utilitarian value of his pleas of guilty, they having been entered at the earliest opportunity.
2. His Honour found that the applicant was contrite and remorseful, and had acknowledged the injury and loss caused by his actions.

The applicant's good character

1. The sentencing judge found the applicant to be a person of otherwise good character. His Honour noted the applicant's history of traffic infringements (for which he had received a demerit point warning letter three weeks before the offences were committed).

The ADHD condition

1. The sentencing judge found that the applicant's ADHD condition was relevant to the circumstances of the applicant's incarceration (because it would make it more onerous) but that it did not mitigate his offending.
2. His Honour did not accept Dr Furst's opinion "that the primary cause of his aggressive dangerous driving was probably intoxication through excessive drinking to which he was predisposed by ADHD". His Honour said "That might be accepted as a general proposition but it does not sit comfortably at all with what is said on behalf of the offender by his parents and his employer, the effect of which is that he has up until the point of this misconduct demonstrated appropriate insight into the need to maintain an appropriate level of abstinence before driving a motor vehicle, particularly the motor vehicle he was required to operate in his employment".
3. His Honour also found that neither "impulsivity", nor the ingestion of alcohol explained the applicant's decision to drive, or the manner in which he did so. The sentencing judge did not accept (as extracted below) that the applicant "impulsively ingested the substances".
4. His Honour also said: "Some of the representations [made by the applicant to Dr Furst] were against his interest for they diffuse any suggestion that his ADHD, of which there is ample evidence, which has affected him throughout his life provides an explanation in mitigation for the conduct for which he is now to be punished. Impulsivity and the ingestion of alcohol do not explain the decision to drive, the extent of the course of driving in such a dangerous manner as described …"
5. His Honour relevantly concluded: "On behalf of the offender weight is attributed to the undoubted diagnosis of ADHD and the opinions offered by Dr Furst regarding the significance it has for the conduct upon which sentence is to be imposed. However, the significance of this condition rests in the circumstances of incarceration which the offender must suffer. I agree with the Crown's submission that there is no connection between the ADHD and the conduct upon which the offender engaged when driving. His decision to drink and consume drugs is suggested to be at least possibly explained by impulsivity, which is a symptom of his condition. At the same time, as I reflected earlier, he has demonstrated considerable insight into the risks attendant upon the consumption of drugs and alcohol before driving and employed strategies against those risks through abstinence for days before his next occasion of driving. The insight he had is supported by the observations of his employer/supervisor, who wrote in such positive terms of his attitudes to his responsibility as a driver. I do not accept that he impulsively ingested these substances, which upon the agreed Statement of Facts was over an extended period of time, beginning in the evening before according to what he had told Dr Furst. I do not accept that he acted on impulse when he chose to drive and I do not accept the act of impulsivity when he chose to drive so dangerously over the course of travel taken to the tragic conclusion of his journey". [Emphasis added.]

Other matters

1. The sentencing judge noted the importance of denunciation, general deterrence and the need for adequate punishment. His Honour found the risk of reoffending to be low. He did not regard specific deterrence as significant, given past instances of relevant insight. His Honour gave substantial weight to the need to recognise the harm done to the community.
2. His Honour noted the need to take into account the principles of totality when sentencing for several offences.

Grounds of appeal

1. As manifest excess need only be considered if no other ground is made out, I propose to address ground 1 before considering, if need be, ground 2.

Ground 1: alleged error in holding that there was no causal link between the applicant's ADHD and the commission of the offence

1. In support of this ground, Mr Odgers SC, who appeared on behalf of the applicant, contended that the sentencing judge must have accepted Dr Furst's evidence that the primary cause of the manner of driving was probably intoxication but rejected his opinion that the applicant was pre-disposed to becoming intoxicated by reason of his ADHD. He submitted that, in circumstances where Dr Furst was not cross-examined, it was not open to the Crown or to the sentencing judge to reject his opinion.
2. Mr Odgers submitted that the fact that the applicant had successfully implemented plans not to drive while intoxicated in the past meant that it ought be inferred that his failure to do so in the present case was due to ADHD-related impulsivity.
3. In my view, it was open to the sentencing judge to make the finding he did that the applicant's ADHD did not materially contribute to the offending conduct. His Honour was not bound to accept the opinion of Dr Furst, in circumstances where significant aspects of the evidence before his Honour were not available to Dr Furst when he gave his opinions. It was his Honour's obligation to determine the facts on the basis of the evidence. The facts found did not accord with the history given to Dr Furst which formed the foundation for his opinion. This discrepancy affected the weight that could be given to his opinion: Paric v John Holland (Constructions) Pty Ltd (1985) 59 ALJR 844 at 845-846 (Mason ACJ, Wilson, Brennan, Deane and Dawson JJ); [1985] HCA 58.
4. The facts which weakened Dr Furst's opinion came from evidence adduced by the applicant (being the references from his parents and his employer). Thus, the applicant had the opportunity to put these matters to Dr Furst to see if his opinion remained the same or was altered by those matters. The Crown had no obligation to put these matters to Dr Furst. It was entitled to make the forensic choice to impugn his opinion on its factual basis.
5. I regard the submission made by Mr Odgers that the fact that the applicant had successfully implemented plans not to drive while intoxicated in the past meant that it ought be inferred that his failure to do so in the present case was due to ADHD-related impulsivity as speculative and unfounded in the evidence. The finding his Honour made to the contrary was open on the evidence.

The applicant's submissions

1. Mr Odgers argued that the sentence imposed by his Honour was out of the range of available sentences and disproportionately high when compared with other sentences imposed in other cases, including by this Court. He sought to draw a distinction between cases of so-called "vehicular manslaughter" and other forms of manslaughter, such as those committed with a knife or a gun. He submitted that only those authorities which related to "vehicular manslaughter" were relevant to be considered because of this categorisation.
2. Further, Mr Odgers submitted that the sentence imposed on the applicant was disproportionately long when compared with the sentence imposed by this Court (on re-sentence) in Moananu v R [2022] NSWCCA 85 (Moananu). In Moananu, this Court (Hamill J, Leeming JA agreeing, Price J contra) allowed an appeal against an aggregate sentence of 15 years' imprisonment with a non-parole period of 10 years' imprisonment on the grounds of manifest excess and imposed an aggregate sentence of 12½ years' imprisonment with a non-parole period of 8 years and 4 months imprisonment.
3. Mr Odgers also placed significant reliance on what was said by the South Australian Court of Appeal in Bubner v R [2022] SASCA 27 (concerning dangerous driving causing death) at [59] (Livesey P, Doyle and David JJA): "This approach reflected that both offences were committed by the one act of driving and militated against the applicant being punished for the same conduct more than once. Legal culpability rather than moral culpability may, in matters such as the present case, be increased where the defendant's wrongdoing causes more than one death. In such matters, most of the purposes of punishment will be fully reflected in the sentence for the first count."
4. Mr Odgers argued that it was reasonable to proceed on the basis that the undiscounted aggregate sentence was 37 years' imprisonment (by scaling up the aggregate sentence by 25%) and that this demonstrates excess. He submitted that this amounted to a "crushing sentence" and that this Court ought intervene to reduce it.

Consideration

1. In Hughes v R [2018] NSWCCA 2 at [86], this Court (Payne JA, R A Hulme and Garling JJ) summarised the principles to be applied when there is a ground of alleged manifest excess as follows: "(1) appellate intervention is not justified simply because the result arrived at in the court below is markedly different from sentences imposed in other cases; (2) 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; (3) it is not to the point that this Court might have exercised the sentencing discretion differently; (4) there is no single correct sentence and judges at first instance are allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle; and (5) it is for the applicant to establish that the sentence was unreasonable or plainly unjust."
2. In JM v R [2014] NSWCCA 297; (2014) 246 A Crim R 528 at [40], R A Hulme J (Hoeben CJ at CL and myself agreeing), set out propositions concerning aggregate sentences. Proposition 11 was: "The indicative sentences recorded in accordance with s 53A(2) are not themselves amenable to appeal, although they may be a guide to whether error is established in relation to the aggregate sentence …"
3. Thus the indicative sentences may also be considered when assessing whether an aggregate sentence is manifestly excessive. In order to work out the pre-discount starting point, the discount for the plea of guilty is to be added back to the indicative sentence. The process of "grossing up" an aggregate sentence by undoing the discount for the plea of guilty has been deprecated by this Court: BB v R [2021] NSWCCA 283 at [64]-[68] (Wilson J, Bathurst CJ and Wright J agreeing), although it was used, presumably as a rough guide, in Moananu. The reason for this is that the discount is to be applied before indicating the sentences which would have been imposed but for the imposition of the aggregate sentence pursuant to s 53A(2)(a) of the Act. I reject Mr Odgers' submission to the contrary, or that it is an appropriate exercise to "gross up" the aggregate sentence. This process is wrong as a matter of principle and is apt to mislead.

Orders

1. I propose the following orders: 1. Grant leave to appeal. 2. Dismiss the appeal.
2. N ADAMS J: I have had the significant advantage of reading the judgment of Adamson J in draft. I agree with her Honour that no error has been shown in relation to ground 1. It was open to the sentencing judge to find that there was no causal connection between the applicant's attention deficit hyperactivity disorder ("ADHD") and his decision to drive on that fateful day. In those circumstances, no error within the fifth limb of House v The King is established (House v The King (1936) 55 CLR 499; [1936] HCA 40). Despite this, for reasons I explain below, the applicant's ADHD was relevant to his subjective case.
3. As for ground 2, after considering the competing submissions and the evidence upon which they were based, I have arrived at a different conclusion to Adamson J on the question of whether the aggregate sentence imposed was manifestly excessive. I am grateful to her Honour for her summary of what occurred before the sentencing judge, his Honour's reasons on sentence and the respective submissions of the parties in this Court. My reasons for arriving at a different conclusion assume familiarity with the background set out in Adamson J's judgment.

Ground 2: Manifest excess

1. That judges of this Court might arrive at different conclusions as to whether a sentence is manifestly excessive (or manifestly inadequate) is hardly surprising. As Payne JA and Button J (Schmidt J in dissent) observed in Conte v R [2018] NSWCCA 209 at [9] in the context of considering a ground contending manifest excess: "…[J]ust 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."
2. That is not to say that a judge of an intermediate appellate court considering such a ground is required simply to engage in a process of intuition (see Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 ("Hili") at [60] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ) or simply consider whether he or she would have imposed a different sentence. As Bell P (as his Honour then was) recently observed in Byrne v R; Cahill v R [2021] NSWCCA 185 at [1] ("Byrne & Cahill"): "… A sentence will not be disturbed for the simple reason that members of the Court of Criminal Appeal may have taken a more lenient or harsh view of the matter, were they conducting the sentencing hearing, than the sentencing judge. Something more must be shown that warrants appellate interference with the sentencing judge's discretion, as the famous decision in House v The King (1936) 55 CLR 499; [1936] HCA 40 makes plain."
3. The correct approach to a ground asserting manifest excess is well settled. The applicant must establish that the aggregate sentence imposed is "unreasonable or plainly unjust". Adamson J has extracted the relevant principles as summarised in Hughes v R [2018] NSWCCA 2 at [86] by Payne JA, R A Hulme and Garling JJ (see also Obeid v R [2017] NSWCCA 221 at [443] per R A Hulme J, with whom Bathurst CJ, Leeming JA and Hamill and I agreed). Those principles identify what is not sufficient to establish such a ground: it is not sufficient merely to show that the sentence is "markedly different" from sentences imposed in other cases or that this Court might have exercised the sentencing discretion differently. Any assessment of such a ground must be made in the acceptance that there is no single correct sentence and judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle.

Vehicular manslaughter

1. No challenge was made to the sentencing judge's findings of objective seriousness. His Honour found the objective seriousness of each the four manslaughter offences to fall "near to the high end of the range", but not in the "worst category": R v Kilic (2016) 259 CLR 256; [2016] HCA 48. His Honour described the applicant's criminal conduct as "a horrific example of unlawful and dangerous conduct and gross negligence", where the applicant had "no regard for the safety of any other road users including his victims". His Honour noted that the dangerous and aggressive driving behaviour was sustained over a significant period of time up to the tragic impact of the applicant's vehicle with the seven child victims as they walked along a footpath adjacent to the road where he lost control. I have watched the CCTV footage which captured only brief glimpses of the applicant's driving given the excessive speed. His Honour also noted that the applicant had ingested alcohol and illicit drugs that day. These factors led his Honour to state: "The manner of driving was such that tragedy was inevitable; the magnitude of the tragedy though extends to the unimaginable."
2. His Honour also found the offence of driving dangerously causing grievous bodily harm to fall toward the high end of the range of objective seriousness but marginally below the objective seriousness of the offences of manslaughter upon the assessment of the harm suffered by the victim. Finally, his Honour found that the offences of causing bodily harm by misconduct fell marginally below the objective seriousness of the offence of dangerous driving causing grievous bodily harm upon the assessment of the harm suffered by the victims.
3. His Honour had regard to the course of driving undertaken by the applicant up to the collision, the length of the journey during which he drove so dangerously and the number of other members of the community, including the victims, he put at risk. His Honour concluded that the driving amounted to menacing behaviour without regard to public safety within the meaning of s 118 of the Road Transport Act 2013 (NSW) and s 21A(2)(i) of the Sentencing Act.
4. The applicant's decision to drive at speed whilst intoxicated, having not eaten all day and having also taken cocaine and MDMA (3,4-Methylenedioxymethamphetamine), had catastrophic consequences both to the families of the children killed that day and the community. Adamson J has not set out the details of how the four young children died nor do I consider it necessary to do so. The tragedy received significant media attention at the time. That is unsurprising. What happened to the families of these children is every parent's worst nightmare. Seven young children go out for ice cream and only three survive, one of whom is left with permanent cognitive impairment. It is a tragic reminder of how life can change in an instant

The purposes of sentencing

1. In sentencing the applicant for his criminal negligence which led to the death of four children, the serious injury of a fifth child and further injury to another two children, the sentencing judge was required to have regard to the relevant purposes of sentencing which, as is often said, pull in different directions. Those purposes are set out in s 3A of the Sentencing Act: (a) to ensure that the offender is adequately punished for the offence, (b) to prevent crime by deterring the offender and other persons from committing similar offences, (c) to protect the community from the offender, (d) to promote the rehabilitation of the offender, (e) to make the offender accountable for his or her actions, (f) to denounce the conduct of the offender, (g) to recognise the harm done to the victim of the crime and the community.
2. The sentencing judge addressed the relevance of these purposes in his Honour's reasons in these terms at: "There must be adequate punishment for this misconduct. To the extent that it might do so the sentence must also serve to discourage such misuse of motor vehicles by others in the community. Regrettably disregard for safety for others to varying degrees is to be regularly observed by those of us who drive upon the licence extended to us to engage in that activity, highlighting the significance of this purpose in the determination of sentences in this matter. I accept that the offender has demonstrated in his past an understanding of the risks of such conduct revealing the measure of insight he has had and which he clearly disregarded on this occasion. Thus, for the future specific deterrence of the offender is not of such significance in this case. I accept that there is limited weight to be given to the need to protect the community from the offender. I accept that his risk of re-offence is low. The sentences in aggregate shall be structured with the need for rehabilitation in mind, although for reasons expressed, I accept that this is of limited significance. The sentence must reflect that the offender is to be made accountable for his conduct and this attracts substantial weight in the exercise of the discretion. So too, with regard to the need to denounce this egregious behaviour. Substantial weight is attributed to the final purpose, that the Court recognises the extent of the harm he has caused to each individual victim and to the community generally, beginning, of course, with the family members who are now forced to live on without the opportunity to see their children develop to their full potential in life, at least in respect of five of his victims."

The applicant's subjective case

1. As the sentencing judge observed, there was much to be said in favour of the applicant. At the time of the accident, he was a 28-year-old man of previous good character. He grew up as one of two children. His father was a police officer and his mother worked in retail. He had no brothers but one sister who was born with cystic fibrosis. She died when the applicant was 19 years old. They were close and her death had a profound effect on him. The applicant is very close to his parents and lived at home until a few months prior to the collision when he had moved out of home for the first time to be closer to his work.
2. The applicant left school in Year 10. He was born with a learning disability, ADHD, which appears to have been resistant to medication. His treatment for this condition was well documented and not challenged by the Crown. He was diagnosed at the early age of five years old and was medicated for it, but the medication gave him facial tics. He was under the care of councillors and paediatricians in his primary school years and continued to struggle in class and socially in his high school years. He left school having completed Year 10. His parents both provided letters to the Court about the difficulties the applicant suffered at school due to his diagnosis. Dr Furst set out further details as well.
3. The applicant worked as an apprentice chef between the ages of 18 and 19 and when the restaurant went into liquidation, he continued in the hospitality industry working as a kitchenhand and cook until he was about 21 years old. Between the ages of 19 and 20 he also worked intermittently as a disc jockey. When he was about 24 or 25 years of age, he started driving trucks for a living. He was employed as a truck driver for Price Chemicals for five years and had worked in the same position with Formula Chemicals for the year prior to the offences. His current employer provided a favourable character reference for the applicant which has been summarised by Adamson J above at [88].
4. The applicant wrote a letter to the Court below in which he described how his "worst punishment" was waking up every day knowing that he was responsible for the horrible accident that will stay with him forever. He apologised to the family of the victims for what he has put them through and told them that he prayed for them every day. He also stated that he will never again touch drugs or alcohol nor drive a motor vehicle.

Comparable cases generally

1. The applicant received an aggregate sentence under s 53A of the Sentencing Act. Section 53A(2) requires that the court, in imposing an aggregate sentence, should indicate the individual sentences which would otherwise have been imposed, had the offender been separately sentenced for each offence. It is well settled that the discount for a plea of guilty is to be applied to the indicative sentences and not the aggregate sentence: PG v R [2017] NSWCCA 179.
2. As Adamson J has observed, it is permissible to have regard to the indicative sentences in order to address a ground asserting manifest excess of an aggregate sentence: JM v R [2014] NSWCCA 297; 246 A Crim R 528 at [40]. Despite this, as Bathurst CJ observed in Kerr v R [2016] NSWCCA 218; 78 MVR 191 at [114], "the fact that the indicative sentences are excessive does not necessarily mean that the aggregate sentence is excessive."
3. Given that there are no other vehicular manslaughter decisions in which four deaths have occurred, it is helpful to compare the indicative sentences in the present cases with the (non-aggregate) sentences or indicative sentences in other matters. Before turning to consider such decisions, including those placed before both the sentencing judge and this Court, I note what appears to be some divergence of opinion in this Court as to whether it is ever appropriate to try and work out the pre-discounted starting point for an aggregate sentence, given that the discount for the guilty plea is applied to the indicative sentences prior to the application of the totality principle.
4. In Chartres-Abbott v R [2021] NSWCCA 239 Brereton JA (with whom Campbell and Hamill JJ agreed) acknowledged at [23] that the discount is to be applied to the indicative sentences but went on to state (footnotes omitted): "The applicant received a discount of 25 percent for his early pleas of guilty. Based on that, his counsel submitted that the 'starting point' for the head sentence was eighteen years and eight months. The Crown submitted that this was misconceived, as discounts for a guilty plea are applied to the indicative sentences and not to the aggregate sentence. While it is correct that the prevailing view is that discounts for a guilty plea are to be applied to the indicative separate sentences rather than to the aggregate sentence, it does not follow that for the purpose of comparison with other cases the approach advanced on behalf of the applicant is impermissible. Plainly, in comparing aggregate sentences in one case with those in others, regard must be had to whether or not the sentence followed a plea of guilty, and the discount that was allowed. While I acknowledge that 'the determination of an aggregate sentence is not merely the sum of its parts', particularly in a case such as the present, where the same 25 percent discount was applicable to each offence, there is little difficulty in reasoning that it was reflected commensurately in the aggregate sentence. That is, it follows as a matter of logic that, had the applicant not received a discount of 25 percent on each of the indicative sentences, the aggregate sentence would have been lengthier by a corresponding proportion. At least for the purpose of comparison with other sentences, it is reasonable to proceed on the basis that but for his plea of guilty the aggregate sentence would have been in the order of eighteen years and eight months."

Moananu v R

1. Mr Moananu pleaded guilty to two counts of manslaughter contrary to s 18 of the Crimes Act and one count of aggravated dangerous driving occasioning grievous bodily harm. In relation to the second of the manslaughter counts, the sentencing judge took into account three related traffic offences pursuant to s 32 of the Sentencing Act: driving on the wrong side of the road and causing bodily harm to a fourth victim, driving without a licence, and driving while cannabis was present in his blood.
2. The high range prescribed concentration of alcohol is 0.150 milligrams of alcohol per 100 millilitres of blood. Mr Moananu's reading was 0.204 mg/100ml. That is four times the legal limit (0.05 mg/100ml) to drive in New South Wales. The people killed were a 17-year-old and her young aunt who was pregnant with unborn twins who also died in the collision. The only surviving passenger was her husband who sustained very serious physical and psychological injuries requiring ongoing treatment and monitoring.
3. Mr Moananu had spent the day drinking and gambling at a hotel then drove home whilst highly intoxicated. He drove in an erratic manner, weaving in and out of lanes whilst speeding to a degree described as "ridiculous" by an eyewitness. He was seen to be tailgating other vehicles and switching lanes without notice. When he mounted a concrete median strip, his car rotated and became airborne. He then crashed into a vehicle travelling in the opposite direction carrying the victims. There were signs that indicated that the speed limit was reduced due to roadworks. The erratic and dangerous driving continued over more than 6 km. One eyewitness described his driving just before the point of impact as "the craziest thing I have ever seen anyone do".
4. Mr Moananu had an unfortunate driving record and was unlicenced at the time of the collision. He had refused a breath test in 2012 and was disqualified as a result. He was also suspended from driving on numerous other occasions for speeding and refusing to display his "P-plates". He also had a conviction for damaging property in 2016.
5. Mr Moananu pleaded guilty at an early stage and received a 25% discount. He was remorseful. He was 29 years old at the time of the collision. He presented "a sad and compelling subjective case" and "had a childhood history of abandonment, familial violence, dysfunction, and exposure to alcohol". He had received injuries in the collision. Mr Moananu was initially sentenced to an aggregate sentence of 15 years' imprisonment with a non-parole period of 10 years. That was the sentence to which the sentencing judge's attention in the current matter was drawn. The indicative sentences for the two manslaughter offences were 8 years and 6 months and 9 years (including the Form 1 matters) respectively and 4 years and 6 months for the aggravated dangerous driving occasioning grievous bodily harm.

Other Decisions from the Court of Criminal Appeal

1. Although there are no other cased involving four deaths, I have found the following cases to be of some assistance.
2. The decision in R v Cameron [2005] NSWCCA 359; 157 A Crim R 70 is factually similar but, as the Crown submitted, is of less assistance as it was a Crown appeal prior to the enactment of s 68A of the Crimes (Appeal and Review) Act 2001 (NSW). The offender was sentenced for three counts of manslaughter and one of dangerous driving causing grievous bodily harm arising out of a collision with a telegraph pole. The driver had never been licenced. The collision was on his 21st birthday. His blood alcohol concentration was in excess of 0.114mg/100ml. There was evidence that he had consumed both methamphetamine and cannabis prior to driving. At the time of the collision, the offender was travelling well over the speed limit and was subject to a good behaviour bond. After this Court intervened, he was sentenced to a total effective sentence of 9 years with a non-parole period of 6 years' imprisonment.
3. In Lawler v R [2007] NSWCCA 85; 169 A Crim R 415, the collision killed one person, injured two others and caused less serious injuries to others. The offender had knowingly driven an unregistered and uninsured prime mover and trailer with defective brakes. When the brakes failed on a long, steep incline, the prime mover collided with 33 vehicles. A sentence of 10 years and 8 months with a non-parole period of 8 years was held not to be manifestly excessive for the manslaughter count, which was also the total effective sentence.
4. In Duncan v R [2012] NSWCCA 78, the female driver was 36 years old. The accident occurred on a country road. The five passengers in the vehicle were teenagers. Ms Duncan let one of the passengers drive and taunted them to go faster (up to 210km/h) before taking the wheel and indicating she would go even faster. When she accelerated to a speed of up to 200km/h, she was unable to take a bend in the road and crashed into bushland, colliding with some trees. Two of the passengers were killed and three suffered serious injuries. She was charged with two counts of manslaughter and three counts of dangerous driving causing grievous bodily harm. Her appeal against an overall (not aggregate) sentence of 12 years and 6 months with a non-parole period of 8 years was dismissed. Sentences of imprisonment of 9 years and 6 months with non-parole periods of 5 years were imposed for each manslaughter offence and fixed terms of imprisonment for 3 years were imposed for the dangerous driving offences.

What is a "worst case" manslaughter?

1. Although the Crown submitted in Chandler (No. 2) that it was a "worst case", Johnson J did not find it to be. I have been unable to find any vehicular manslaughter cases in this category. An example of manslaughter (as opposed to vehicular manslaughter) held to be a worst case is Clare v R [2008] NSWCCA 30. The offender had befriended the vulnerable mother of a six-year-old girl and a three-year-old boy and persuaded her that he could mind her children for her. He then sexually assaulted both of them. When he anally penetrated the three-year-old boy the pain of the penetration caused the child to vomit, and he choked and died. The dangerous and unlawful act was having anal intercourse with the child. The offender was convicted after a trial. The sentencing judge was satisfied that it was a worst case and imposed the maximum penalty for the manslaughter (25 years' imprisonment). He was also sentenced in relation to the sexual assault of the deceased child and was already serving a sentence for sexually assaulting the deceased's six-year-old sister by the time of his appeal.
2. On appeal to this Court the non-parole period for the manslaughter offence was reduced to 15 years and 9 months' imprisonment but the head sentence of 25 years remained. This Court was satisfied that the sexual abuse of a three-year-old child for sexual gratification leading to his death was a worst case of manslaughter. The Court's attention was drawn to other cases of manslaughter concerning children as well as the Judicial Commission statistics for manslaughter between April 2000 and March 2007. They showed that Mr Clare was the only person to receive the maximum penalty for manslaughter in that period and that the next highest non-parole period for manslaughter was 12 years' imprisonment.

JIRS

1. As part of my consideration of whether the indicative sentences set by the sentencing judge are too high, I have also had regard to data produced by the Judicial Information Research System ("JIRS") on manslaughter sentencing in NSW. One set of data shows the length of head sentences imposed on an individual offender for manslaughter (both indicative and effective sentences, depending on the number of counts on which an offender was sentenced) in NSW between 24 September 2018 and 31 March 2021.
2. When the data is restricted to cases where the offender had no prior criminal record (like the present applicant) there were only 17 cases in this category, with head sentences ranging between 6 and 12 years. Within this group, the highest sentence for manslaughter was Bentley v R [2021] NSWCCA 18 being 12 years (indicative). This case involved a violent assault on the deceased by a group of offenders who also stood to be sentenced for the supply of a commercial quantity of methamphetamine. The case of R v Cahill; R v Byrne which was before the sentencing judge and is discussed above at [271], was also in the highest band. The sentence imposed was 10 years and 6 months (an appeal was dismissed: Byrne v R; Cahill v R [2021] NSWCCA 185).
3. When the analysis is extended to all offenders (those both with and without a prior criminal history) the sample size increases to 70 cases which is a more helpful distribution. The fact that the applicant does not have a prior criminal record makes him statistically unusual for an offender sentenced for manslaughter.
4. Of the 70 cases, the range of sentences for manslaughter is shown to be between 2 years and ">20 years". Of those cases, 66 of them fall between 5 years and 14 years. The highest head sentences imposed for one count of manslaughter is 21 years and 7 months. That is the case of R v Camilleri [2021] NSWSC 221 ("Camilleri").
5. In Camilerri, Wilson J at [1] described the offending as "one of the most serious instances of manslaughter it is possible for any imagination to conjure". A daughter stabbed her mother to death in a frenzy decapitating her. On a trial for murder, she was found guilty by a jury of manslaughter on the basis of a partial defence of substantial impairment. At [106]-[107], Wilson J assessed the offender's prospects of rehabilitation as "very limited" and stated that "the possibility of a violent outburst … looms large" such that "[t]he protection of the community must be a significant consideration". A discount of 10% was applied to the sentence to account for the offender's plea of guilty to manslaughter prior to trial (meaning that starting point for the sentence was 24 years).

Are the indicative sentences too high?

1. The applicant contends that the aggregate sentence imposed on him is manifestly excessive on the basis that the indicative sentences of 14 years and 3 months were too high and that the extent of accumulation was too high. The first question is whether the indicative sentences are so high in this matter as to suggest error.
2. It is to be accepted that there is no other case in NSW in which this Court has considered a sentence imposed for four manslaughter offences. That means that there is no other aggregate sentence for four deaths for the Court to consider. But that does not mean that there have been no other cases where the objective seriousness of the driving has been as gravely serious as this one, as the cases referred to above establish. It seems to me that driving at speed in a built-up area to escape police whilst under the influence of illicit drugs or conducting a street race with two other cars is similarly serious conduct. I have found the other decisions to be of assistance with respect to assessing whether the indicative sentences imposed in this matter are so high as to suggest error in the aggregate sentence.
3. The applicant's criminality was found to fall near to the high end of the range. He was a man of prior good character, had genuine remorse, little risk of re-offending and had suffered the long-term impact of ADHD. His Honour accepted that the sentence did not need to reflect specific deterrence, rehabilitation or the protection of the community. In making his finding of objective seriousness the primary judge had regard to the particular harm to the community in this matter. That harm arose from the fact of the multiple deaths of children from the one extended family. The number of people killed is relevant to the aggregate sentence imposed rather than to each indicative sentence. To approach the sentencing exercise on the basis that each indicative sentence should reflect the number of deaths would breach the principle in R v Di Simoni (1981) 147 CLR 383; [1981] HCA 31.
4. The only offender to have ever received a sentence close to this applicant's starting point of 19 years for each count of manslaughter was the offender in Chandler (No. 2) where it was found that he knew that there was an appreciable risk of serious injury to another person. That is a state of knowledge so close to that of murder by reckless indifference to human life, realising that the act would probably cause the death of a person, as to put it in a completely different category to the applicant's case in terms of objective seriousness.

Totality principle

1. Although his Honour summarised the submissions on behalf of both the Crown and Mr Davidson as to the application of the totality principle in some detail, including the applicable principles, his Honour made no finding as to how he would apply those principles in this case beyond observing the following as part of his assessment of the objective seriousness of the offences: "Submissions on his behalf advanced the incontestable fact that there is but one sequence of driving with the tragic consequence wrought in respect of each of the victims. However, the assessment of the conduct to which each individual charge is referable requires appropriate weight to be given to the tragic consequences for each of the victims including the extent of their horrific injuries."
2. It is a well established principle of sentencing that, when sentencing for multiple criminal acts, the judge is not to simply add all of the sentences together. Questions of accumulation and concurrence will arise in each case. It was put this way by the High Court (Wilson, Deane, Dawson, Toohey and Gaudron JJ) in Mill v The Queen (1988) 166 CLR 59 at 63; [1988] HCA 70: "'The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is 'just and appropriate'. The principle has been stated many times in various forms: 'when a number of offences are being dealt with and specific punishments in respect of them are being totted up to make a total, it is always necessary for the court to take a last look at the total just to see whether it looks wrong[']; 'when … cases of multiplicity of offences come before the court, the court must not content itself by doing the arithmetic and passing the sentence which the arithmetic produces. It must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences'."
3. Ten years later, in Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57, the same principle was expressed this way by McHugh, Hayne and Callinan J at [45]: "A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well, of course, as questions of totality."

Ground 2: Conclusion

1. As stated above at [294], I am satisfied that a starting point of 19 years imprisonment' for each of the four separate counts of manslaughter is too high in the circumstances of this case. The question is whether that finding leads to the conclusion that, after the application of the totality principle, the aggregate sentence is manifestly excessive.
2. In any case concerning multiple victims the proper application of the totality principle will invariably mean that an offender will serve less time in custody for the criminality pertaining to each count and each victim than would be the case had there only been one victim and/or one charge. This consequence of the proper application of the totality principle may well leave victims of crime feeling that the offender has received little additional punishment in relation to the offences committed on them. In a factual scenario that arises more commonly in this Court, a paedophile who sexually assaults numerous children on numerous occasions will, after the application of the totality principle, usually receive a relatively short cumulative increment for each additional sexual assault. This is the case even though, unlike the present case, the offender has committed numerous discrete acts in sexually assaulting each child. By further way of analogy, if a driver acting in a criminally negligent manner, such as this applicant, collided with a school bus and killed 20 children, the application of the totality principle may lead to a result in which there is a relatively short portion of the total sentence attributable to each additional death. That is not to say that the harm to the victims and the community as a result of those deaths was any the less; clearly the unspeakable loss for the families of each child would be the same. But the fact that the proportion of the sentence which could be seen to reflect each death was lower than it would have been had there only been one death is a consequence of the proper application of the totality principle.
3. I have referred above at [309] to the note of caution expressed by Johnson J (Mason P and Barr J agreeing) in Knight that, when applying the totality principle, it is important to avoid the impression that a discount for multiple offending is being given. That case concerned an offender who was sentenced in relation to over 30 separate property offences. In that context, his Honour observed the following at [112]: "The mechanism of making some sentences cumulative and others concurrent (or partly so) may be used where the aggregate of sentences imposed in respect of each count exceeds the appropriate total sentence: R v Myers [2002] NSWCCA 162 at paragraph 34. At the same time, it is necessary to ensure public confidence in the administration of justice by imposing sentences which do not suggest that multiple offences will be punished in the same way as one or two offences: R v Wheeler [2000] NSWCCA 34 at paragraphs 36-37."

Re-sentence

1. As Mr Abdullah acknowledged in his letter to the court, no sentence imposed will ever be enough for the loss the families of the deceased have suffered. But this Court is required to reconcile their grief with the application of the relevant sentencing principles and, by way of instinctive synthesis, arrive at the appropriate aggregate sentence to punish the applicant.
2. The applicant did not rely upon any additional material in the event that this Court came to re-sentence him.
3. I would adopt all of the findings made by the sentencing judge with regard to the objective seriousness, remorse, prospects of rehabilitation, the early plea, and the applicant's prior good character. As the sentencing judge noted, the purposes of specific deterrence, protection of the community and rehabilitation are of less significance in this matter.
4. Although I would not uphold ground 1, the applicant's ADHD was nonetheless relevant as part of his subjective case. As Dr Furst explained, ADHD is a disorder that interferes with functioning and to be diagnosed with it at such a young age is to have chronic and long-lasting symptoms.
5. Due to the publicity surrounding this matter and the risk of being killed by other inmates in mainstream custody, the applicant was placed in segregation for the first 11 months and at the time of sentence had been classified as a special management and protection inmate ("SMAP"). Such a classification is a form of protective custody which allows for limited contact with other inmates. A letter from the governor of the correctional centre where he was incarcerated at the time of sentence, dated 2 February 2021, confirmed that the applicant was physically separated from other inmates given his assessed high risk of assault due to his offence but was able to converse with a limited number of inmates through a physical barrier. I have had regard to the fact that his incarceration has been and will continue will be more onerous due to this fact as well as his ADHD and the impact of the COVID-19 pandemic.
6. No finding of "special circumstances" within the meaning of s 44(2) of the Sentencing Act was made by the sentencing judge given the length of the sentence imposed. I would impose a lesser sentence which raises the question of whether that question should be revisited. Most offenders in the lower courts (including the District Court) do have their non-parole periods reduced following a finding of special circumstances: see Brennan v R [2018] NSWCCA 22 at [86]. Despite this, I am satisfied that the sentence I would impose is of sufficient length to provide for an adequate period on parole.

ORDERS

1. I would propose the following orders: 1. Grant leave to appeal. 2. Uphold the appeal. 3. Quash the sentence imposed on the applicant in the District Court on 9 April 2021 and, in lieu thereof, sentence the applicant to an aggregate sentence of 20 years' imprisonment to commence on 1 February 2020 and expire on 31 January 2040. The aggregate non-parole period is 15 years' imprisonment to commence on 1 February 2020 and expire on 31 January 2035. 4. The offence of manslaughter is a "serious violence offence" as defined in s 5A of the Crimes (High Risk Offenders) Act 2006 (NSW). Accordingly, I am obliged by s 25C of that Act to advise the applicant of the existence of that legislation and of its application to the offences he has committed.

Endnotes

1. (2015) 123 SASR 422; [2015] SASCFC 125 at [25].
2. Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [59] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ); Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25], [27] (Gleeson CJ, Gummow, Hayne and Callinan JJ); Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [58] (Gaudron, Gummow and Hayne JJ); Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 ("Dinsdale") at [6] (Gleeson CJ and Hayne J); Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29 at [15] (Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ); House v The King (1936) 55 CLR 499 at 505 (Dixon, Evatt and McTiernan JJ); [1936] HCA 40.
3. [2018] NSWCCA 2 at [86] (Payne JA, RA Hulme and Garling JJ).
4. (2017) 96 NSWLR 155; [2017] NSWCCA 221 at [443] (R A Hulme J; Bathurst CJ, Leeming JA, Hamill J and N Adams J agreeing); ("Obeid").
5. [2017] NSWCCA 87 at [63] (R A Hulme J; Leeming JA and Beech-Jones J agreeing); see also Dinsdale at [6] (Gleeson CJ and Hayne J).
6. Dinsdale at [6] (Gleeson CJ and Hayne J).
7. Below at [59]-[76].
8. Below at [204].
9. Below at [228]-[234].
10. Below at [235].
11. PG v R [2017] NSWCCA 179; 268 A Crim R 61.
12. Chartres-Abbott v R [2021] NSWCCA 239; 291 A Crim R 225 at [23] (Brereton JA; Campbell J and Hamill J concurring); Moananu v R [2022] NSWCCA 85 ("Moananu") at [6] (Leeming JA), [138] (Hamill J).
13. Moananu at [6].
14. Aryal v R [2021] NSWCCA 2 at [49]-[50] (R A Hulme J; Johnson J and Wilson J agreeing); JM v R [2014] NSWCCA 297; 246 A Crim R 528 at [85] (R A Hulme J; Hoeben CJ at CL and Adamson J agreeing).
15. JM v R [2014] NSWCCA 297; 246 A Crim R 528 at [40].
16. Kerr v R [2016] NSWCCA 218; 78 MVR 191 at [114] (Bathurst CJ; Hoeben CJ at CL and Price J agreeing).
17. [2005] NSWCCA 359; 157 A Crim R 70 (Grove J; McClellan CJ at CL and Hislop J agreeing).
18. [2005] NSWCCA 359; 157 A Crim R 70 at [42], [47] (Grove J).
19. [2005] NSWCCA 359; 157 A Crim R 70 at [3] (McClellan J).
20. [2007] NSWCCA 85; 169 A Crim R 415.
21. [2009] NSWCCA 102; 95 A Crim R 152 ("Borkowski").

Amendments 17 April 2023 - [281] line 2 - word "partially" deleted 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: 17 April 2023