Lees v R

Offence and sentence The applicant seeks leave pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) to appeal the sentence imposed upon her by Acting Judge Marien SC (the sentencing judge) in the Sydney District Court on 18 July 2017.

1. The applicant pleaded guilty in the Sydney District Court to one count of manslaughter pursuant to s 18(1)(b) of the Crimes Act 1900 (NSW). The maximum penalty for this offence is 25 years imprisonment.
2. The sentencing judge imposed a term of imprisonment of 16 years with a non-parole period of 12 years, commencing 20 October 2015, being the date on which the applicant was taken into custody. The non-parole period will expire on 19 October 2027, with the balance of term expiring on 19 October 2031.
3. In addition, the sentencing judge also sentenced the applicant for an offence on a s 166 certificate and for two call-up offences for breaches of bonds as follows:

• s 166 certificate: contravene prohibition/restriction in AVO (domestic), s 14(1) Crimes (Domestic and Personal Violence) Act 2007 (NSW) - s 10A Crimes (Sentencing Procedure) Act 1999 (NSW) (Sentencing Procedure Act), no penalty imposed;
• call up for contravene prohibition/restriction in AVO (domestic) -imprisonment 6 months (concurrent with manslaughter sentence and had already expired at the time of sentence); and
• call up for possess prohibited drug - imprisonment for 6 months (concurrent with manslaughter sentence and had already expired at the time of sentence).

1. A 10 per cent discount was given for the "very late plea of guilty". No finding of special circumstances was made to alter the ratio of the non-parole period to the balance of term on the basis that there would already be a lengthy period of parole during which rehabilitation could take place.
2. The applicant originally relied upon three grounds of appeal:

Ground 1 - The sentencing proceedings miscarried because the indictment was presented in the District Court contrary to law such that the District Court did not have jurisdiction to conduct the proceedings

Ground 2 - The sentencing judge erred in his assessment of the objective seriousness of the offence

Ground 3 - The sentence was manifestly excessive

1. On Thursday, 13 March, 2019 the Court was advised that the applicant was no longer relying upon Ground 1.

Factual background and sentence hearing

1. On 20 October 2015, the applicant killed her de facto partner, Wayne Hoyt, after driving into him with her car. Their relationship had involved domestic violence and drug abuse. They had two children aged 19 and 15 at the time.
2. A statement of agreed facts was tendered on sentence. The sentencing judge observed that the agreed facts contained inconsistencies in accounts between the applicant and eye witnesses. In addition, it contained inconsistencies in the applicant's account to police, her psychologist and her psychiatrist as to the circumstances in which the offence occurred.
3. Although the statement of agreed facts did not set out the type of manslaughter to which the applicant had pleaded, the sentencing judge noted that the sentence hearing proceeded on the basis that the category of manslaughter was death by an unlawful and dangerous act. The act was the use of a motor vehicle by the applicant as a weapon "[i]n other words … the offender assaulted the deceased by intentionally using the motor vehicle she was driving as a weapon against the deceased to apply force upon him" (Sentence judgment 7.6).
4. In relation to the inconsistencies in the accounts of how the accident occurred, the sentencing judge noted that the applicant had given two interviews to police on the day of the offence. There were the observations of an independent witness, Mr Damian Sykes, whose home was opposite where the incident had occurred. The applicant also gave an account of what happened to Ms Anne Lucas, a forensic psychologist, and Dr Martin, a psychiatrist. It was those statements which were contradictory and in relation to which it was necessary for the sentencing judge to make findings as to how the offence occurred.
5. Police attended the scene where the deceased was struck by the vehicle and a road side hand-held interview was conducted with the applicant under caution. In that statement, the applicant said that the deceased "jumped out in front" of her before she closed her eyes and hit the brakes immediately. The interview went on to record: "[s]he indicated that a bottle had been thrown at the car. A rum bottle was located smashed on the inside of the vehicle."
6. Later that morning, the applicant participated in an Electronically Recorded Interview of a Suspect Person (ERISP) in which she said that the deceased "regathered the bottle and came towards the front of the vehicle and threw the bottle at the windscreen once more". The applicant stated that she was travelling at approximately 25-35 kilometres an hour on the incorrect side of the road, i.e. the right hand side of the road. She said that she closed her eyes because she thought the bottle was going to smash the windscreen. She then opened her eyes "the deceased was in front of the vehicle and then he disappeared". Later in the interview, the applicant said that the deceased was in front of the vehicle on the driver's side running towards her and as he threw the bottle, he had jumped onto the bumper bar and was holding on. She then closed her eyes, hit the brakes hard and this caused a skid. She said that when she opened her eyes again, she could not see the deceased. She said that she was angry and upset.
7. The statement of agreed facts set out that police formed the opinion that the applicant was "slightly impaired and in shock".
8. Ms Lucas saw the applicant on 7 April 2017. In her report of 10 April 2017 Ms Lucas recorded that the applicant admitted that she was affected by methylamphetamine at the time of the offence. The applicant told Ms Lucas that the deceased had deliberately hit the vehicle with an object and had thrown a bottle at her which smashed inside the car. The applicant told Ms Lucas that she felt panicked and reacted by closing her eyes and accelerating the car. The applicant told Ms Lucas that it had not been her intention to run the deceased over.
9. Dr Martin saw the applicant on 22 June 2017. He prepared a report dated 27 June 2017 in which he recorded that the applicant told him that the deceased had left the house with her cigarettes and packet of Xanax. She jumped into the car to retrieve her cigarettes and Xanax from the deceased. She said that this is what they had been arguing about. The applicant said "[o]ne thing led to another. I jumped out of the car. He hit me in the cheek and smashed the windscreen with a stick".
10. The applicant told Dr Martin that the deceased had also thrown a bottle at the car and that he had come towards the vehicle with another rum bottle. The applicant said "I don't know if I freaked out, I was revving the car but I wasn't trying to run him over, but I was angry". Dr Martin recorded that the applicant could not recall driving with the deceased's body being dragged beneath the vehicle.
11. Dr Martin noted that the applicant was extremely distressed when recounting this information during the interview and that she told him that at the time of the police interview she had some difficulty recalling exactly what had happened, but had subsequently been able to recall some aspects which she had then related to him. The applicant told Dr Martin that she had wanted to jump back into the car and that she was going to take the deceased to where he wanted to go but he had said to her "[f]uck it, don't worry about it".
12. The sentencing judge interpolated that the clear implication of what the applicant told Dr Martin was that after getting out of the vehicle, she was hit in the cheek by the deceased, who then "smashed" the windscreen with a stick. His Honour noted that in fact the windscreen was not smashed.
13. His Honour noted that when the applicant saw Dr Martin she said nothing about the deceased running at her vehicle and throwing a bottle nor that she was travelling at a speed of between 25 and 30 kilometres an hour. His Honour further noted that the account which the applicant gave to Dr Martin was wholly inconsistent with the account which she gave to the police on the day of the offence and to Ms Lucas.
14. The sentencing judge found the following discrepancies in the police statements. The applicant told police, firstly in the roadside interview, that the deceased "jumped out in front of her" and that she closed her eyes and hit the brakes immediately. In the ERISP she told police that the deceased "regathered the bottle and came towards the front of the vehicle and threw the bottle at the windscreen once more". She told police in the ERISP that she closed her eyes because she thought the bottle was going to smash the windscreen. She then opened her eyes.
15. Finally, the sentencing judge found that the various inconsistent and contradictory accounts given by the applicant to police, Ms Lucas and Dr Martin were not supported by the observations of the independent witness, Mr Sykes.
16. Mr Sykes was awakened by the sound of screeching tyres and looked out of his front bedroom window. He observed the deceased standing one metre in front of the vehicle on the road and that the vehicle was stationary. He saw the applicant standing on the road next to the driver's door. He could hear her arguing and he saw the deceased hit the car with a stick.
17. Mr Sykes continued to watch the applicant and the deceased through his bedroom window. (As set out in the agreed facts, Mr Sykes' house was directly opposite the stationary vehicle.) Mr Sykes then observed the deceased turn and start walking away from the vehicle. He observed the applicant get into the driver's seat of the vehicle and heard the vehicle "revving" before accelerating forward with a screeching of tyres.
18. Mr Sykes saw that the deceased was standing about five metres directly in front of the vehicle. He saw the deceased turn and look towards the vehicle before he was flung up onto the bonnet and the windscreen on the driver's side. Mr Sykes saw the vehicle travel forward and he lost sight of the deceased. He observed that the vehicle continued to accelerate from the moment of the screeching tyres until after the moment of impact.
19. The sentencing judge found that the clear implication in the accounts given by the applicant to police in the two interviews on the day of the offence was that, as she was driving the vehicle, at a speed between 25 to 30 kilometres, the deceased either jumped in front of her vehicle or came towards her vehicle, throwing a bottle at the vehicle. She told police that as a result she hit the brakes and closed her eyes.
20. She gave a similar but different story to Dr Martin to the effect that the deceased smashed the windscreen with a stick and that he was coming towards the car, in which she was seated, with another rum bottle. She said to Dr Martin "I don't know if I freaked out, I was revving the car, but I wasn't trying to run him over, but I was angry."
21. The sentencing judge noted that the applicant made no mention to Dr Martin of closing her eyes. This was in contrast to what she had told the police after the incident. The applicant made no mention to police of stopping her vehicle and getting out, nor did she say that the deceased smashed the windscreen with a stick or that he had even hit the windscreen with a stick. She did not mention to police that when she was out of the car, the deceased hit her in the cheek.
22. The sentencing judge was prepared to accept that on the day of the offence whilst speaking to police, the applicant was in a state of shock and that she was under the influence of amphetamines. His Honour concluded that even so, those matters did not adequately explain the highly inconsistent accounts given by her to police, to Ms Lucas and to Dr Martin.
23. The sentencing judge had serious concerns about the reliability of the applicant as follows: "I indicated to counsel that I was inclined to accept the account given by Mr Sykes, as he was an independent witness making observations directly across the road from where the offender's vehicle had stopped. Indeed, Ms Kluss submitted that I might well be inclined to accept the account of Mr Sykes over the account given by the offender, but as I stated previously, Ms Kluss submitted that because the offender was in a state of shock and under the influence of drugs at the time, this inconsistency might be explained by simply matters of perception by the offender, as to what she perceived she saw, which may not have in fact been accurate perceptions. What then transpired was that following those comments being made by me on 30 May 2017 about the serious inconsistency between the accounts given by the offender to the police and the observations of Mr Sykes, the proceedings were adjourned and the offender saw Dr Martin and gave a different account to the account she gave to the police and to Ms Lucas, an account which in some respects is consistent with the observations of Mr Sykes. The clear and undoubted serious inconsistencies in the offender's accounts, on the one hand to the police and Ms Lucas, and then, on the other hand, to Dr Martin, in my view so seriously undermine the offender's credibility that I am unable to accept any account given by her as to the circumstances surrounding the commission of the offence, unless her account is supported by independent evidence." (Sentence judgment 14.9-15.8)
24. The sentencing judge further noted that the versions of events given by the applicant were "wholly exculpatory" and that she sought to portray herself as the victim of unwarranted attacks by the deceased upon the vehicle which she was driving. The sentencing judge further noted that in all the accounts given by the applicant to police, Ms Lucas and Dr Martin she denied any intention to strike or apply force to the deceased or threaten to apply force by the use of the motor vehicle.
25. The findings made by his Honour have not been challenged in this appeal. Those findings were: "… Ms Kluss advised me that the offender admits that she intentionally struck the deceased with the motor vehicle she was driving. Accordingly, accepting as I do the account given by Mr Sykes, and in the circumstances where the defence did not require the Crown to call Mr Sykes for cross-examination, and in circumstances where the offender did not give evidence, or seek to give an account in evidence contrary to the observations of Mr Sykes, the offender is to be sentenced upon the basis that, upon the deceased leaving their premises on the day of the offence, the offender got into the vehicle and followed the deceased as he walked along a number of streets. In Oak Street, the offender stopped the vehicle on the roadway; she got out of the vehicle and stood by the driver's door. The deceased was at that time standing one metre in front of the vehicle, on the roadway. The offender and the deceased argued, and the deceased hit the vehicle with a stick. The deceased then turned away and started walking away from the vehicle. After saying, "It's not even my fucking car," the offender got back into the driver's seat. At that time she was angry with the deceased. The offender revved her vehicle, before accelerating forward. I am satisfied beyond reasonable doubt, and this satisfaction is consistent with her plea of guilty, that at the time the offender accelerated the vehicle, she intended to strike the deceased with the vehicle. At the time the offender revved the vehicle, the deceased was standing about five metres directly in front of the vehicle. The deceased turned and looked towards the vehicle before he was flung up onto the bonnet and windscreen on the driver's side. It is impossible to accept in those circumstances that the offender did not see the deceased being flung up onto the bonnet and onto the windscreen of the vehicle. I am satisfied beyond reasonable doubt that in those circumstances the offender was aware that she had collided with the deceased and that, with that knowledge, the offender continued to drive the vehicle for a further 35 metres. However, I am not satisfied beyond reasonable doubt that the offender knew that the deceased was trapped under the vehicle whilst she continued to further drive the vehicle but I am satisfied that after he was flung up onto the bonnet and the windscreen of the vehicle, the deceased slid off the vehicle and became trapped underneath the front passenger wheel where he was dragged for about 35 metres." (Sentence judgment 17.1-18.4)
26. The sentencing judge further found that: "As to the allegation by the offender that the deceased threw a bottle at the vehicle on two occasions, on the evidence before me I am unable to make any finding on that issue. As I have said fragments of a broken bottle were located inside the vehicle. However, apart from the untested out of court assertions by the offender to the police, there is no evidence as to how those fragments of broken bottle came to be in the vehicle or when they came into the vehicle. Further, because the credibility of the offender is so substantially undermined by her inconsistent accounts as to the circumstances of the offence, I am unable to accept her out of court statements that the deceased immediately before the vehicle collided with him, threw a bottle at the vehicle and in that regard I note that Mr Sykes relates only to seeing the deceased striking the vehicle with a stick. He makes no mention of seeing a bottle in the hand of the deceased or seeing the deceased throw a bottle. In all those circumstances, the finding of fragments of a broken bottle inside the vehicle, is entirely neutral in this matter." (Sentence judgment 18.8-19.4)
27. The sentencing judge then summarised the applicant's subjective case. The applicant was born in June 1977 and is currently aged 41. She did not give evidence in the sentence proceedings. She was raised in a mostly positive family environment and entered into her relationship with the deceased when she was 16. Despite getting off to a positive start, the relationship after some years degenerated into one involving the abuse of drugs and alcohol. The applicant was also subjected to domestic violence. The applicant reported that the deceased would typically become violent when affected by drugs and alcohol.
28. The sentencing judge set out the opinions of Ms Lucas and Dr Martin in some detail. In doing so, his Honour summarised the conclusion of Ms Lucas as follows: "Ms Lucas states that the account of the offence provided by the offender during the assessment suggested that in the presence of a domestic dispute, with her reactivity heightened by symptoms of traumatic stress and amphetamine substances, that the offender behaved in a highly reflexive manner to a perceived threat posed by the deceased when he is alleged to have hit the vehicle she was driving with objects, including an alcohol bottle. Ms Lucas states that the account provided by the offender indicated that she is likely to have given little, if any, thought to the consequences of her actions at that point in time." (Sentence judgment 19.9-20.3)
29. The sentencing judge recorded the opinion of Ms Lucas that the applicant's risk of re-offending by way of a similar offence was low and that her risk of re-offending generally would be improved by attention to mental health issues, including relapse prevention for substance abuse, stability and safety in accommodation and employment. Ms Lucas reported that on the applicant's account she no longer uses illicit substances since she has gone into custody. His Honour accepted that assessment.
30. The sentencing judge noted that Dr Martin opined that it was likely that the applicant had borderline personality traits or disorder. Dr Martin explained that "personality disorder" is a description of long term problems with instability of moods, identity in relationships with frequent self-harming behaviour and chronic feelings of emptiness and hopelessness and a vulnerability to depressive symptoms and impulsivity problems. His Honour further noted Dr Martin's opinion that it was likely that the applicant had symptoms of Post-Traumatic Stress Disorder (PTSD) which had in turn resulted in her having a tendency to be hyper vigilant and to act impulsively in situations of threat.
31. The sentencing judge summarised Dr Martin's conclusions as follows: " … he believes that the concept of complex post-traumatic stress disorder is valid and applicable to the offender. However, he says that overriding this is the apparent fact that she had been using methamphetamine and other drugs on a regular basis. He states that regular use of such drugs would result in very poor decision making and a tendency to be disinhibited or worsening of mood instability. Dr Martin states that putting all of this together, he believes that a plausible and probable explanation, from a psychiatric perspective, is that the offences occurred in association with a highly volatile relationship characterised by substance use and frequent arguments, arousing violence and on a background of her having longstanding problems with mood regulation. He states that it would seem highly likely that her judgement would have been generally impaired as a consequence of the above problems. Dr Martin states that in terms of the offender's future she requires assertive drug and alcohol rehabilitation." (Sentence judgment 21.1-21.7)
32. The sentencing judge did not regard the applicant's record of prior convictions as serious. The record included convictions for receive or dispose of property, goods in custody, common assault, contravene a domestic apprehended violence order and possess a prohibited drug. His Honour noted that at the time of the offence the applicant was subject to two s 9 bonds, one for the possession of a prohibited drug and the other for the contravention of a domestic apprehended violence order. His Honour was of the opinion that these offences were not significant in the context of the offence presently under consideration. Given her age and criminal record, his Honour was satisfied that it was unlikely that the applicant would re-offend in a similar way. His Honour qualified that conclusion in that it was conditional upon the applicant remaining drug free when she returned to the community.
33. His Honour had reservations about the genuineness of the applicant's expressions of remorse and contrition. This was because of the exculpatory nature of her explanations to police, Ms Lucas and Dr Martin. His Honour noted that it was only in the course of submissions that the applicant appeared to accept responsibility for the consequences of the offence by admitting that she had an intention to strike the deceased with the motor vehicle. His Honour further noted that in her letter to the mother of the deceased, the applicant did not accept responsibility, morally or otherwise, for his death.
34. His Honour set out his conclusions as to the objective seriousness of the offence as follows: "[i]n my view, the objective seriousness of this offence is of a very high order. In forming that view, I take into account the nature of the unlawful act, being an assault by the use of a motor vehicle involving the intention of the offender to use a motor vehicle to physically assault the deceased. The case, therefore, involves an extremely serious unlawful act of assault because it involves the use of a motor vehicle as a weapon to intentionally physically strike another person. Further, the dangerousness of the unlawful act in this case can only be described as extreme. As I have said, under the law a dangerous act is one that a reasonable person in the position of the accused would have apprehended was an act that exposed another person to a risk of serious injury. I accept that the statement made by Mr Sykes that, following upon the offender revving the vehicle whilst it was stationary, the offender accelerated the vehicle and continued to accelerate the vehicle until it struck the deceased. The dangerousness of that act, as I say, can only be described as extreme." (Sentence judgment 23.4-23.9)
35. His Honour found that the seriousness of the offending was mitigated by the fact that it was an unplanned and spontaneous act. Nevertheless, his Honour found that there was no provocation by the deceased and that the deceased was completely defenceless, having turned his back on the vehicle and having commenced walking away from it.
36. In relation to the history of domestic violence, his Honour found: "I note from the reports that there is a history of domestic violence between the offender and the deceased. However, this offence did not arise out of a situation where the offender was responding, for example, to an assault upon her by the deceased in the context of domestic violence. Ms Kluss made no submission that the offence occurred in such a context." (Sentence judgment 24.4-24.7)
37. By reference to the evidence of a close friend of the applicant's (Ms Shanley), his Honour noted that on at least one occasion it had been the applicant had instigated violence in the relationship. It was against that background, that his Honour found: "I am clearly of the view that the offence falls in the high range of objective seriousness for the offence of manslaughter. Whilst the gravity of the offence does not warrant the imposition of the maximum penalty, the gravity of the offence is, in my view, approaching a gravity warranting the imposition of the maximum penalty. In R v Borkowski (2009) 195 A Crim R 1 at [49], it was stated that there is no hierarchy of seriousness within manslaughter and it will be the particular facts, rather than the class of manslaughter, that determines the seriousness of offending. In cases of manslaughter involving motor vehicles, it is "unproductive" to consider what might have been the appropriate sentence for an offence of aggravated dangerous driving occasioning death…" (Sentence judgment 25.2-25.4)
38. The sentencing judge found that the cases to which he was referred were of little assistance and determined that in accordance with the guidance in R v Robert Borkowski [2009] NSWCCA 102; 195 A Crim R 1, it was necessary for him to determine the appropriate sentence on the basis of the particular facts pertaining to this case. It was against that background that his Honour imposed the sentence set out above.

Ground 2 - The sentencing judge erred in his assessment of the objective seriousness of the offence

1. The applicant submitted that his Honour did not have regard to the causal connection between the mental state of the applicant and the commission of the offence when assessing the "objective seriousness" of the offence.
2. The applicant submitted that by reference to the opinion of Ms Lucas, her mental state made a significant contribution to the commission of the offence. The applicant relied upon the results of cognitive testing and the fact that the offending took place against a background of domestic violence. The applicant placed particular reliance upon that part of the report of Ms Lucas where she said: "70 The account of the offence provided by Ms Lees during this assessment suggested that in the presence of a domestic dispute, with her reactivity heightened by symptoms of traumatic stress and amphetamine substances, Ms Lees behaved in a highly reflexive manner to a perceived threat posed by Mr Hoyt when he is alleged to have hit the vehicle she was driving with objects, including an alcohol bottle. The account she provided indicated she is likely to have given little if any thought to the consequences of her actions at that point in time."
3. The applicant submitted that the conclusions of Dr Martin were to similar effect. On that issue, she submitted that he was of the opinion that she was suffering from complex PTSD as a result of her exposure to significant domestic violence and that this disorder had probably resulted in her having a tendency to be hypervigilant and act impulsively in situations of threat.
4. The applicant relied upon the summary of Dr Martin where he said: "Putting all this together, I think a plausible and probable explanation from a psychiatric perspective is that the offence has occurred in association with a highly volatile relationship characterised by substance abuse and frequent arguments, rows and violence, and of a background of her having long-standing problems with mood regulation. It would seem highly likely that her judgment would have been generally impaired as a consequence of the above problems." (Report p 7.8)
5. The applicant submitted that his Honour's assessment of the objective seriousness of the offending failed to have regard to the many years of domestic abuse to which she had been exposed and which included being hit with heavy objects and on occasions, being burnt with cigarettes. The applicant submitted that by referring only to a limited part of Mr Shanley's evidence, his Honour had greatly minimised not only the extent of the deceased's violence towards her but also the extent to which the applicant's mental state had been affected by that violence.
6. The applicant submitted that his Honour had failed to have proper regard to the circumstances of the offending which involved the deceased hitting the car with a stick and throwing a bottle at the car and generally threatening her as she was sitting in the car. The applicant submitted that his Honour had failed to take into account the psychological and psychiatric evidence that she was in a state where she felt threatened and had become stressed and hypervigilant. The applicant submitted that his Honour failed to take into account that the offending took place in the course of a loud and aggressive argument which was a frequent occurrence between her and the deceased.
7. The applicant submitted that another significant matter which his Honour did not refer to in his assessment of objective seriousness was that she had only driven about five metres before hitting the deceased. The applicant submitted that in the absence of any expert evidence as to how long it would have taken that vehicle to travel five metres, common experience would suggest that it would only have been a matter of seconds between her revving the car and it striking the deceased. The applicant submitted that her acceleration of the car in the direction of the deceased was a spontaneous act committed without the intention of killing the deceased or causing him grievous bodily harm, otherwise she would have been charged with the offence of murder.
8. In summary, the applicant submitted that in failing to address these issues in his assessment of the objective seriousness of the offence, his Honour did not properly take into account: 1. her likely mental state, namely her stress and hypervigilance, in a situation where the deceased was fully engaged in the confrontation only a few moments before; 2. the spontaneity of her actions; and 3. the very short period of time between her starting her car and the point of impact.

Consideration

1. This Court has said on many occasions that the task of assessing the objective seriousness of an offence is "quintessentially for the sentencing judge" (Mulato v R [2006] NSWCCA 282 at [46]; Baladjam v R [2018] NSWCCA 304 at [267]). The Court has therefore been "very slow" to determine such matters for itself or to set aside the judgment made by the first instance judge exercising a broadly based discretion (Mulato v R at [37] per Spigelman CJ).
2. In the present case, the sentencing judge found that the objective seriousness of the offence was "of a very high order" and that it was "an extremely serious unlawful act of assault because it involved the use of a motor vehicle as a weapon to intentionally physically strike another person". His Honour also concluded that the dangerousness of the unlawful act was "extreme". Importantly, his Honour found that the applicant was not provoked into reacting as she did.
3. Those characterisations of the seriousness of the offending were well open to his Honour. Having conceded an intention to drive into the deceased, one can see that such an intention was very close to that required for the offence of murder, i.e. an intent to inflict grievous bodily harm. While such an intent was not found (and could not be so found given the plea of guilty to the offence of manslaughter) the intent which was found and conceded constituted a very serious form of manslaughter, i.e. an intent to use a motor vehicle as a weapon to hit the deceased. This was not a case of someone wanting to frighten the deceased, but inadvertently striking him (such as Young v R [2009] NSWCCA 298).
4. In her submissions in relation to this ground, considerable weight was placed by the applicant on the background of the domestic violence which had been perpetrated against her by the deceased in the course of their relationship. Significantly, however, this was not an occasion when such violence had been directed at her. There was no evidence of any act of violence having taken place that night and in any event, the deceased was walking away from the applicant at the time when he was struck by the motor vehicle.
5. The applicant has submitted that the sentencing judge erred by failing to address the issues of her mental state, the spontaneity of the offending and the short period between the applicant starting the car and the impact. None of those matters invalidate the assessment of objective seriousness made by the sentencing judge.
6. Strictly speaking, the question of the applicant's mental health does not arise when one is considering the objective seriousness of an offence. That is part of the applicant's subjective case and needs to be treated as such. (Muldrock v The Queen [2011] HCA 39; 244 CLR 120 at [19], [27].) In any event, his Honour extensively referred to and accurately summarised the assessments and reports of Ms Lucas and Dr Martin. Importantly, in the sentencing hearing, the applicant's counsel did not make a submission (nor could she given his Honour's findings of fact which have not been challenged) that the applicant's offending was causally related to the effects of domestic violence and her mental health. On that issue, the opinions of both Ms Lucas and Dr Martin concerning the connection between the applicant's offending and those matters were founded on an acceptance of the applicant's account of what happened. Ms Lucas was told that the deceased had thrown a bottle at the applicant in her car and Dr Martin was told that the deceased had hit the applicant in the cheek and smashed the windscreen with a stick. These accounts were not accepted by his Honour. They were not accepted because they were not corroborated by any other evidence and were contradicted by the independent witness, Mr Sykes.
7. His Honour specifically found (and this has not been challenged on appeal) that: "[t]he clear and undoubted serious inconsistencies in the offender's accounts, on the one hand to the police and Ms Lucas, and then, on the other hand, to Dr Martin, in my view so seriously undermine the offender's credibility that I am unable to accept any account given by her as to the circumstances surrounding the commission of the offence, unless her account is supported by independent evidence." (Sentence judgment 15.8)
8. In circumstances where the sentencing judge rejected the account of offending provided by the applicant to Ms Lucas and Dr Martin, their opinions as to the causal relationship between domestic violence and her offending are of little weight.
9. Moreover, it was undisputed and specifically referred to by both Ms Lucas and Dr Martin, that the applicant was affected by drugs at the time of the offence and had been using methamphetamine intravenously, as well as other dependence inducing drugs in large quantities for many years. Significantly, after expressing the opinion that it was likely that the applicant was suffering from a complex PTSD arising from her exposure to domestic violence as a child, Dr Martin said: "… [o]verriding this is the apparent fact that [the applicant] has been using methamphetamine and other drugs on a regular basis. Regular use of such drugs would result in very poor decision-making and a tendency to be disinhibited, or worsening of mood instability." (Emphasis added.) (Report p7.7)
10. The use of such substances, while helping to explain the applicant's conduct, does not excuse it or mitigate it. Self-induced intoxication is a factor which is excluded from operating as a mitigating factor (s 21A(5AA) of the Sentencing Procedure Act; R v Tepania [2018] NSWCCA 247 at [124]-[127]). In circumstances where the psychiatric evidence was that the applicant's drug use was an "overriding" factor in the commission of the offence, the sentencing judge did not err in not finding that the applicant's exposure to domestic violence was causally connected to the offending, particularly when the applicant's counsel in the sentence proceedings did not submit that his Honour should make such a finding.
11. The spontaneity of the offending was specifically taken into account by his Honour. Further, the facts as set out by the sentencing judge in his reasons expressly stated that the deceased was standing five metres in front of the applicant's vehicle at the time she revved the engine. The sentencing judge clearly took both the spontaneity of the applicant's actions and the distance travelled by the vehicle into account in his assessment of objective seriousness. Contrary to the applicant's submissions, neither the spontaneity of the applicant's actions nor the short period of time between the applicant starting the car and her impact with the deceased significantly mitigated the objective seriousness of the offending. As earlier indicated, if the applicant's actions had not been spontaneous, and, in particular, if the applicant had had an opportunity for calm reflection, the offence would likely have been one of murder rather than manslaughter.
12. All relevant matters were taken into account by his Honour when assessing the objective seriousness of the offence. This Ground of Appeal has not been made out.

Ground 3 - The sentence was manifestly excessive

1. The applicant submitted that when one made allowance for the discount of 10 per cent for her plea of guilty, the starting point for the sentence imposed by his Honour must have been 17 years and 9 months. The applicant submitted that this was a very high starting point and should only be awarded for the most serious kind of manslaughter.
2. The applicant submitted that by reference to decided cases, it was clear that this sentence was manifestly excessive. In support of that submission, the applicant relied upon the following cases.
3. R v Farrar (NSWCCA, unreported, 6 May 1991) involved an offender who was drinking with others at a house when an argument broke out. When police were called, the offender was sitting in his truck, which was locked with the windows wound up. When the offender refused to get out of the truck, a police officer used a baton to break the driver's side window and another officer began to climb into the truck through the broken window. When that officer was half inside the truck and half outside, the offender drove off causing the police officer to be struck by a tree which caused his death. The offender was tried for murder but a manslaughter verdict was returned. On appeal the offender's sentence was reduced to imprisonment for 14 years with a minimum term of 10 years and 8 months.
4. The facts in R v Stevens (NSWCCA, unreported, 15 August 1993) were that the offender had been drinking heavily when he stole a car, intending to drive home. The victim, who was the owner of the car, saw his car being driven away and tried to stop the offender by hanging onto the car. The offender drove erratically through the streets, hitting a parked car and two buildings. The victim was fatally injured by these impacts and fell from the car.
5. The offender was charged with murder but a plea of guilty to manslaughter was accepted. He was 18 at the time of the offending and was very intoxicated. He otherwise had a good record and good prospects of rehabilitation. He was sentenced to imprisonment for 9 years 4 months, with a non-parole period of 7 years.
6. In R v Gordon (No 8) [2017] NSWSC 574 the offender was charged with murder and the jury found him guilty of manslaughter. The offender had fatally injured the deceased by intentionally reversing a motor vehicle over him. The sentencing judge, his Honour Justice Campbell, found that because of his gross state of intoxication, the offender had acted impulsively without forming any actual specific intention to kill or seriously injure the deceased.
7. In the course of analysing the facts, Campbell J said: "40 … I find [the offender's driving] was done intentionally to collide with [the deceased] because the offender was angry with him. I am constrained by the jury's verdict from finding that the offender intended to cause really serious injury. My finding should not be understood as a finding that the offender intended any particular consequence at all. … 42 … To the extent to which it is necessary to make a decision, the category of manslaughter involved in this offending is manslaughter by unlawful and dangerous act."
8. Campbell J characterised the offending as follows: "46 [This] offending is a somewhat serious example of manslaughter. It involved the actual and deliberate use of violence through the agency of the Mitsubishi Magna. The offending occurred at a time when [the deceased] was vulnerable because of his own level of intoxication... 47 The offending was not premeditated, but was an impulsive act the impulse coming from the disinhibition always associated with intoxication, which in this case was gross. It must be pointed out that intoxication does not in any way mitigate the seriousness of the offending. It may, however, explain why it occurred. [Favourably, the offender attempted to get some assistance but then, unfavourably, left the scene, abandoning the deceased]... 48 I think it relevant to my assessment of objective seriousness that the offender has a record of violent impulse when intoxicated [the offender had five prior assault convictions, none of which had resulted in a custodial sentence]."
9. Campbell J sentenced the offender to imprisonment for 10 years with a non-parole period of 6 years and 6 months.
10. In Young v R, the offender and the deceased were both drinking at a hotel with separate groups of friends. An argument developed between the two groups, continuing outside the hotel. The offender went to his car, which was parked opposite the hotel, and drove it directly at the opposite footpath where the deceased was standing. The offender's car mounted the footpath, struck the deceased and killed him.
11. The offender pleaded guilty to manslaughter on the first day of his trial. Mathews AJ found the offender had a very favourable subjective case. He was aged 22, had no criminal convictions and only one relatively minor traffic infringement. Her Honour found that the offence was out of character, that he was remorseful and had good prospects of rehabilitation. Her Honour allowed a discount of 12.5 per cent for the plea of guilty, and imposed a sentence of imprisonment for 8 years with a non-parole period of 5 years.
12. The applicant submitted that although every case must be determined on its own facts, and that sentencing law in NSW has changed considerably since Farrar and Stevens, the more recent decisions, and Gordon (No 8) in particular, illustrate the extent to which the sentence imposed on the applicant in this case was manifestly excessive. The applicant submitted that the total sentence imposed in Gordon (No 8) was just less than two-thirds of the total sentence imposed in this case and the non-parole period imposed in Gordon (No 8) was just over 50 per cent of that imposed in this case. The applicant submitted that the following considerations made it clear that the sentence imposed on her was manifestly excessive: 1. the act of hitting the deceased with her car followed a loud and aggressive argument between her and the deceased. The deceased played a part in that argument, yelling at the applicant, hitting the car with a stick and trying to pull a letterbox from the ground; 2. she drove for only five metres before hitting the deceased. She could not have been driving for more than just a few seconds when she hit him; 3. she had no prior convictions for offences of physical violence and she had never before served a custodial sentence; 4. she acted spontaneously and without pre-planning in driving the car at the deceased, in the context of what Ms Lucas and Dr Martin found to be her impaired judgment; and 5. she had no intention of causing serious physical harm to the deceased. 6. she was clearly remorseful for her actions in killing her 'soul mate'. She had been in a relationship with him, as dysfunctional as it was, for some 22 years, since she was 16; 7. the deceased was the father of her two children, who are now aged about 20 and 16 years. The children have continued to show their support for her; 8. her family and friends live in Moree, a long distance from women's correctional centres in NSW. The likelihood is, as Ms Shanley said, that few of them will be able to visit the applicant because of the cost of travel; and 9. she suffers from mental disorders which require ongoing treatment, both pharmacological and by way of counselling. Those mental disorders were, at least in part, attributable to the violence and domestic abuse the applicant suffered at the hands of the deceased over many years.

Crown submissions

1. The Crown submitted that a term of imprisonment of 16 years with a non-parole period of 12 years in respect of this matter was not unreasonable or plainly unjust for the following reasons: 1. the offence carried a maximum penalty of 25 years imprisonment; 2. the offence involved the applicant assaulting the deceased by intentionally using a motor vehicle she was driving as a weapon against him; 3. the dangerousness of the unlawful act was "extreme"; 4. there was no provocation by the deceased; 5. the deceased was completely defenceless, having turned his back on the vehicle; 6. the applicant was at conditional liberty at the time of the offence in that her conduct breached two s 9 bonds; 7. while there was a history of domestic violence, this offence did not occur in the context of the applicant responding to an assault upon her by the deceased; and 8. the sentencing judge had "some reservations about the genuineness of her expressed remorse and contrition".
2. The Crown submitted that the decisions in Farrar and Stevens were decided in 1991 and 1993 respectively and as such carry less weight than more recent authorities in this Court. The Crown noted that in Stevens there was no finding that the applicant intended to strike the deceased with the vehicle. There was also a strong subjective case, i.e. the applicant was 18 years old and had a number of subjective features that had a "substantial mitigating effect".
3. In Young v R, this Court dismissed a severity appeal against a sentence of 8 years, with a non-parole period of 5 years. The Crown noted that the offender in that case, aged 22, was out drinking with friends and was heavily intoxicated. There was a verbal argument between the deceased's group and that of the offender. The argument continued outside the hotel in the course of which the offender suddenly went to his vehicle, started it, accelerated it and drove at some speed towards where the deceased's group was standing. The vehicle mounted the kerb and collided with the deceased who was standing on the footpath. It was accepted in the sentence proceedings that the offender's intention was to "frighten" the deceased. The Crown submitted that this was a significant difference between Young v R and the present case.
4. The Crown submitted that the difficulty with the comparison of cases put forward by the applicant is that manifest excess is not established simply by a comparison of sentences imposed in other cases which involve different facts. The Crown submitted that to warrant intervention misapplication of principle must be established: Ngati v R [2008] NSWCCA 72 at [34]. The Crown submitted that there would always be cases where other offenders appear to have been dealt with more leniently: Vanderventer v R [2013] NSWCCA 33. The Crown submitted that what must be achieved is consistency in application of relevant principle, not numerical or mathematical equivalents: Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520 at [59]. The Crown submitted that none of the cases relied upon by the applicant established that the sentence imposed in the present case was manifestly excessive.

Relevant legal principle

1. This Court has said on a number of occasions that to succeed on a ground which alleges that a sentence is manifestly excessive, the applicant must establish that the sentence was "unreasonable" or "plainly unjust" (Markarian v The Queen [2005] HCA 25; 228 CLR 357 at 371 [25] and Hili v The Queen; Jones v The Queen at [59]). Consideration of whether a sentence is unreasonable or plainly unjust is undertaken in the context that there is no single correct sentence and that sentencing is not a mathematical exercise. Sentencing judges are required to reach a sentence for each offence by balancing many different and conflicting features: Markarian at [27]; Barbaro v The Queen; Zirilli v The Queen [2014] HCA 2; 253 CLR 58 at [34].
2. Accordingly, sentencing judges are to be allowed as much flexibility as is consonant with consistency of approach and applicable sentencing principle and this Court will not interfere in a sentence merely because it may have exercised its discretion differently: Markarian at [15]. As Hayne J observed in AB v The Queen [1999] HCA 46; 198 CLR 111 at [128]: "There will be a range of possible sentences that could be imposed without error".
3. This Court has recently summarised the relevant principles in relation to an appeal on the ground of manifest excess in Newman v R [2018] NSWCCA 208 at [47]: "47 … (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. See Obeid v R [2017] NSWCCA 221 (R A Hulme J; Bathurst CJ, Leeming JA, Hamill and N Adams JJ agreeing) at [443]; Hughes v R [2018] NSWCCA 2 at [86] per Payne JA, R A Hulme and Garling JJ." See also as to the use of comparable cases R v Pham [2015] HCA 39; 256 CLR 550 at [28].
4. A matter of concern is that although his Honour accurately summarised the opinions of Ms Lucas and Dr Martin concerning the applicant's psychiatric and psychological difficulties, he does not appear to have given them particular weight when assessing their effect on the applicant's conduct at the time of the offending.
5. This is not to say that his Honour's findings that this offence did not occur in the context of a domestic violence episode were not open. His Honour's analysis made it clear that such was not the case. However, the consideration of the applicant's mental condition was not confined only to that issue. It had an effect beyond that. It is this aspect which his Honour does not appear to have taken into account.
6. Ms Lucas concluded: "75 [The applicant] continues to suffer from significantly distressing symptoms of distress associated with her Post Traumatic Stress and Depression Disorders. By her account she no longer uses illicit substances a factor which should lower her emotional and behavioural reactivity over time and assist her in being able to adaptively deal with her emotional difficulties … 76 Although symptoms of psychological distress are being currently addressed by psychopharmacologic means, incomplete symptom resolution has been achieved to date. [The applicant] continues to experience a number of symptoms that impact her ability to function normally. This includes her social function and cognitive function. It is recommended that she received psychological or psychiatric treatment to address the core symptoms of her Post Traumatic Stress Disorder and co-morbid depression in addition to any medication she is prescribed."
7. Dr Martin in his opinion concluded: "Taking into account the above interview, the mental state examination and the other information provided, [the applicant] gives a background history of long-standing problems with mood instability, acting impulsively, dysfunctional relationships and a pre-disposition to low moods, feelings of emptiness, and suicidal thoughts and behaviours. In addition to this, she has used methamphetamine intravenously as well as other dependence-inducing drugs for a lengthy period, and in large quantities. The problems appear to go back many years… Sometimes people with borderline personality traits on a background of previous trauma are diagnosed as having "complex Post Traumatic Stress Disorder". This is not a DSM-5 diagnosis but is frequently used among psychologists and psychiatrists in describing a pattern of hyper-arousal, mood dysregulation and disordered behaviour which is seen as a consequence of exposure to trauma. I think the concept of complex Post Traumatic Stress Disorder is valid and applicable in Ms Lees' case. Overriding this is the apparent fact that she had been using methamphetamine and other drugs on a regular basis. Regular use of such drugs would result in very poor decision making and a tendency to be disinhibited or worsening of mood instability. Putting all this together I think a plausible and probable explanation from a psychiatric perspective is that the offence has occurred in association with a highly volatile relationship characterised by a substance use and frequent arguments, rows and violence, and on a background of her having long-standing problems with mood regulation. It would seem highly likely that her judgment would have been generally impaired as a consequence of the above problems." (Report 6.7, 7.5)
8. As those opinions make clear, there was a more generalised problem affecting the applicant's mental processes than reacting to an episode of domestic violence. There were long-standing problems which explain, to some extent, how the applicant could intend to drive the motor vehicle into the deceased, yet also not have an intention to cause serious bodily harm or not have formed an intention at all. Quite clearly the applicant's psychiatric problems must impact upon her moral culpability for the offending. Regrettably, his Honour does not appear to have considered that issue and to have taken it into account when formulating the sentence.
9. When considering the applicant's subjective case, it was essential for his Honour to assess her moral culpability and thus responsibility for the offending. In my opinion, the applicant's undoubted psychiatric disabilities significantly reduced the applicant's moral culpability for what was otherwise, looked at objectively, in the high range of seriousness for the offence of manslaughter. I have concluded that his Honour's failure to have regard to the effect of the applicant's psychiatric problems on her moral culpability amounted to error.
10. Support for this proposition can be found in Muldrock v The Queen. There the Court (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ) said: "9 … In resentencing the appellant the Court of Criminal Appeal should have taken, but did not take, sufficient account of the appellant's mental retardation. … 50 The assessment that the appellant suffers from a "mild intellectual disability" should not obscure the fact that he is mentally retarded. The condition of mental retardation is classified according to its severity as mild, moderate, severe or profound. Mental retardation is defined by reference to both significantly sub-average general intellectual functioning and significant limitations in adaptive functioning. … 53 Judge Black's finding, expressed in lay terms, that the appellant's intellectual disability is "significant", was apt. It was an error for the Court of Criminal Appeal to reject the finding, if that is what it did. Alternatively, it was an error for the Court to find that Judge Black's determination, that general deterrence had no place in sentencing the appellant, was not justified by the evidence. One purpose of sentencing is to deter others who might be minded to offend as the offender has done. Young CJ in a passage that has been frequently cited said this: "General deterrence should often be given very little weight in the case of an offender suffering from a mental disorder or abnormality because such an offender is not an appropriate medium for making an example to others." … 54 The principle is well recognised. It applies in sentencing offenders suffering from mental illness and those with an intellectual handicap. The question will often arise as to the causal relation, if any, between an offender's mental illness and the commission of the offence. Such a question is less likely to arise in sentencing a mentally retarded offender because the lack of capacity to reason as an ordinary person might, as to the wrongfulness of the conduct will, in most cases, substantially lessen the offender's moral culpability for the offence. The retributive effect and denunciatory aspect of a sentence that is appropriate to a person of ordinary capacity will often be inappropriate to the situation of a mentally retarded offender and to the needs of the community." (Footnotes committed.)
11. These considerations feed into the issue of the extent to which it was appropriate for his Honour to take into account general deterrence. While general deterrence clearly remained an important consideration in fixing the applicant's sentence, it was mitigated in a not insignificant way by the effect of her psychiatric issues on her moral culpability. They reduced the extent to which the applicant was an appropriate subject for general deterrence.
12. While the Crown correctly submitted that manifest excess is not established simply by a comparison of sentences imposed in other cases which involve different facts, such cases can be of assistance. In that regard, the decision in Gordon (No 8) is useful. This is because it is a recent sentencing decision by a judge of this Court. Importantly, and unlike the other cases referred to by the applicant, there is a close similarity in the facts of that case when compared to the instant case.
13. The sentence imposed in Gordon (No 8) was imprisonment for 10 years with a non-parole period of 6 years and 6 months. This followed a discount of 15 per cent for the plea of guilty. The applicant was convicted of manslaughter after a jury trial for murder.
14. The applicant, the deceased and others had been drinking at a homestead. The applicant and the deceased had been arguing with each other but nevertheless left the homestead to go home together, with the applicant driving and the deceased in the passenger seat. During the course of the journey, they began arguing again while the vehicle was travelling at a slow pace. The deceased attempted to alight from the vehicle and in doing so fell onto the road. The applicant then intentionally put the vehicle into reverse and drove over the deceased causing injuries which ultimately led to his death.
15. There were, of course, as there always are in such comparisons, important differences in the case. In Gordon (No 8) the applicant was aged only 18 and there was evidence, which was accepted, that he "immediately regretted his angry action and took steps to attempt to obtain assistance". The importance of this case, however, is that it is a recent decision of the Court and no challenge was made to the sentence by the Crown. When one compares that sentence with that imposed by the sentencing judge in this case, it is, as the applicant submitted, significantly more lenient than that imposed on her.
16. Taking all those matters into account, I have concluded that the sentence imposed in this case was manifestly excessive and that the applicant should be re-sentenced.
17. In re-sentencing the applicant, I have to take into account the applicant's present situation, not as she was at the time of sentence. In that regard, there are before the Court a number of affidavits to be considered when re-sentencing.
18. The applicant has already served 3½ years of her sentence. During that time, there have been seven breaches of discipline mainly involving fighting with other inmates. The applicant has, however, indicated her willingness to undergo rehabilitation courses but has been unsuccessful thus far in being accepted for them.
19. While in custody, the applicant was seen by a forensic psychologist, Professor Hayes, on 12 December 2018. The findings of Professor Hayes largely replicated those by Ms Lucas and Dr Martin. Professor Hayes found that the applicant functioned in the range of borderline intellectual disability. The applicant was assessed as suffering from the psychological disorders of PTSD and Major Depressive Disorder for which she was receiving prescribed medication. Professor Hayes concluded that the applicant's mental conditions had made her incarceration more onerous than for a person who did not suffer from those conditions. I have taken those matters into account when re-exercising the sentencing discretion.
20. No challenge has been made to the sentencing judge's findings of fact and I have accordingly taken those into account in the re-sentence process. In particular, I have taken into account his Honour's findings as to the actions of both the applicant and the deceased immediately before, and at the time, the vehicle struck the deceased.
21. The sentence I propose will allow a considerable time for the applicant to be on parole and consequently, I have not found special circumstances.
22. Even though I have concluded that the sentence imposed by his Honour was manifestly excessive, I remain of the opinion that the objective seriousness of this offence was in the high range, even though the applicant's various psychiatric disabilities reduce her moral culpability for the offending.
23. Accordingly, the orders which I propose are: 1. Leave to appeal against sentence is granted. 2. The appeal against sentence is allowed. 3. The sentence imposed by Marien SC ADCJ on 18 July 2017 is quashed. 4. In lieu thereof, the applicant is sentenced to imprisonment with a non-parole period of 9 years, commencing 20 October 2015 and expiring 19 October 2024, with a balance of term of 3 years, expiring 19 October 2027.
24. PRICE J: I agree with Hoeben CJ at CL and the orders which he proposes.

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: 29 March 2019