McGonigle v R [2020] NSWCCA 84 | Case summary

The Sentencing Remarks

Following the sentencing hearing on 24 June 2019, her Honour Judge Wells SC sentenced the Applicant later that day in ex tempore sentencing remarks. It is appropriate to refer to parts of those remarks.
Her Honour outlined the facts of the offences by reference to the Statement of Agreed Facts and CCTV footage which had been played at the sentencing hearing. Her Honour described parts of the factual narrative which were supplemented by the CCTV footage, which constituted graphic evidence of the Applicant's course of driving. Her Honour said (ROS2-3): "He drove past the Yamba Police Station after the commencement of the chase and the Yamba BP Service Station. His car was shown on closed circuit TV footage and I have had the opportunity of seeing that footage. All that can be said is that his car appears to be travelling very fast, though given that the car is travelling across the camera, it is difficult to accurately say how fast the car is going. The other essential point from that closed circuit TV footage is that at the initial part of the journey, there are the headlights of a couple of other vehicles seen, right in the direction where he is heading through a roundabout. Before the crash occurred, there was a witness driving his cane truck on Yamba Road. He described the car driven by the offender as flying along the road towards him. He slowed his truck because he believed, correctly as it turned out, that the car would not be able to handle the bend at that speed. He saw the offender's car enter into the left-hand bend, where it lost control. It started to rotate anticlockwise and went onto the incorrect side of the road, colliding with the Armco rail along the side of the road. Again, that is seen on CCTV footage from a camera on a building known as The Palmers Store. The car scraped along the rail for about eight metres before going off the road, hitting a grass embankment and becoming airborne. When it hit the ground, it rolled down the embankment multiple times over a row of trees, leaving a path of destruction and came to a stop in a macadamia tree plantation. The car stopped about 70 metres west of the west alignment of Yamba Street and about a bit over 28 metres north of the northern edge of that road. It finished in an upright position facing east. His passenger, who is the victim in terms of the grievous bodily harm element of the charge, was ejected from the car and collided with a macadamia tree, causing both the tree and a branch to break. He came to rest almost 40 metres west of the car."
The sentencing Judge noted the Applicant's explanation to police that he panicked after seeing the police vehicle. As mentioned earlier, the Statement of Agreed Facts had noted that the Applicant's vehicle had travelled approximately 8.5 kilometres from the Pacific Hotel Yamba to the collision site, with this including a distance of approximately 8.1 kilometres from the point where the Applicant almost collided with the police vehicle which then pursued the Applicant's vehicle. The sentencing Judge observed that the Applicant "certainly panicked for a considerable period of time over the eight and a half kilometre journey" (ROS4).
Photographs of the Applicant's vehicle sitting in the macadamia plantation were tendered on sentence. Her Honour observed that, "As is obvious from the photos that were tendered, it suffered major damage from rolling over at speed" (ROS4).
An understanding of the force and impact of the collision is assisted from the photographs of the Applicant's vehicle reproduced earlier in this judgment. Consideration of the photographs supports the view that both the Applicant and Mr Mullan were lucky to survive the collision and that it was fortunate indeed that the Applicant was effectively uninjured with Mr Mullan suffering very substantial injuries from which he has made a considerable, but incomplete, recovery.
Her Honour outlined the injuries to Mr Mullan observing (ROS7): "The passenger's injuries were unsurprisingly numerous but ultimately, it should be concluded that they do not fall into the more serious range for injuries that occur in offences of this kind. They were though numerous and it was no doubt a matter of good luck that his injuries were not far more serious."
Her Honour recounted aspects of the Applicant's subjective case including the report or Dr Katz and references and other character evidence adduced on his behalf. Her Honour stated (ROS10-11): "… he comes before this Court not only as a young man, which is most relevant to take into account in formulating the sentence, but also as a young man with good character. He has no prior criminal convictions, he is a hard worker and each and every one of the references that are tendered to the Court indicate that this offence is truly out of character for him. Some of his referees cannot begin to imagine why he acted in the way that he did that particular night. Not only does the victim, his friend of many years hold no grudge against him, but so too do the victim's parents. They, along with the family of the offender and other friends and an employer have provided references that speak in the most glowing terms of his character, his capacity for work and his essential decency. They too are matters that assist him in consideration of the appropriate sentence. It is also clear from the references and the evidence that he has given in this Court that he is deeply remorseful for the damage that he did to his friend and the potential damage that he might have done to other road users that night. All of those matters suggest that he has very good prospects of rehabilitation and is unlikely to re-offend in this way."
The sentencing Judge observed that the offence was to be regarded as "a serious crime" (ROS11). Her Honour turned to consider the objective gravity of the offence and the degree of the Applicant's moral culpability or blameworthiness having regard to the guideline judgment in R v Whyte (2002) 55 NSWLR 252; [2002] NSWCCA 343 at [204]-[234]. Her Honour said (ROS11-13): "When determining whether a sentence of full-time custody is appropriate and the length of that sentence, close attention must be given to consideration of the degree of moral culpability or blameworthiness of the offender. That is regarded as the critical component of an offence such as this and I refer to the case of Whyte [2002] 55 NSWLR 252 at 212. Whyte's case, which is a guideline judgment, outlines a number of aggravating factors that are relevant to considering moral culpability. First of all, there is consideration of the number of people put at risk. Here, the offender put at risk himself and his passenger and potentially other road users. It is true to say though that given the early hours of the morning when this offence [occurred] and it is a relatively quiet part of the world, that the number of other people put at risk does not fall at the most serious end of the scale. Nevertheless, there was every potential for other road users, as the CCTV footage at the start of this episode demonstrates, to be placed in harm's way by the offender's driving. There was also, as has been conceded on his behalf, the truck driver who saw the vehicle coming at speed and fortunately had the opportunity to stay out of the way of the offender's car. The degree of speed in this case is a very serious aggravating factor. He travelled at high speed well above the legal limit and more often than not, over 45 kilometres per hour or more over the posted limits. As the Crown has pointed out, that is an aggravating factor for an offence of this kind. Further, that factor alone would cause an instant loss of licence. The evidence of intoxication is the aggravating factor in this case and here, undoubtedly his ability to drive a car was severely compromised. The length of the journey is not a short one and it is not a particularly long one, being about eight and-a-half kilometres from Yamba to the crash scene. It has been submitted that the Court would take into account that Yamba is a small town in a rural area and that is one description but it is also a popular coastal town and the road that he travelled on was the only road between Yamba and where the collision occurred. It is relevant to take into account the degree of harm and as I have already observed, the injuries to the victim were less than moderately serious for an offence of this kind, but again in the circumstances of him being flung about 40 metres from the car into a tree, perhaps is not entirely helpful in terms of a mitigating factor. On the other hand, the victim has made a fairly good recovery in all of the circumstances. In short, this offence involved a 24 year old driver who drove a car with a passenger. The driver was far too intoxicated to be driving a car and set out to avoid apprehension by the police, having almost swerved into them in the first place. It does not assist that it came into his head that he should continue driving because he did not want to drive too far, should he be pulled up by the police. No doubt his judgment on that matter and his driving was severely affected by the consumption of alcohol, but that does not assist him. In all, he has demonstrated very little regard for the safety of himself, his passenger, the police who were on the road and other road users."
Her Honour found a high degree of moral culpability on the Applicant's behalf (ROS13): "Taking into account those circumstances, in line with the principles in Whyte, there is here a high degree of moral culpability shown on the part of the offender."
The sentencing Judge then turned to the Applicant's subjective case (ROS13-14): "As I have alluded to, there are a number of features in his subjective case that have a mitigating effect on the sentence. Firstly, his plea of guilty, his very clear expression of remorse by his words and by his actions. He stood by his friend who was injured for a long period of time through his recuperation and probably as a result of that, their friendship remains strong. The fact that he is still a young man though applies with less force in offences of this kind because of the prevalence of young men committing offences of this type. It remains a factor to take into account, though it must have reasonable proportionality to the objective seriousness of the offence. That means that where there are persuasive subjective considerations for the offender, as there are here, that must not lead to inadequate weight being given to the objective seriousness of the offence. It is relevant to take into account his unblemished prior record, but for those less serious driving matters. It is though unavoidable that even though he is a young man of good character who is unlikely to re-offend, the Court faces the prospect that where there is an offence of this kind and because of the prevalence of this offence, the punishment must be severe."
Her Honour allowed a 25% discount for the Applicant's pleas of guilty (ROS14). The sentencing Judge had regard to the Applicant's degree of despair and depression and the element of self-punishment (ROS15): "Of course it has been said that judges should be wary of attaching too much weight to considerations of self-punishment because genuine remorse and self-punishment do not compensate for or balance out where there is significant moral culpability. Nevertheless, it is a matter that I have had regard to. In all, the combined force of his favourable subjective circumstances are entitled to considerable weight. The Court has to have regard to various principles in sentencing as a guide to the appropriate sentence, apart from what is said in the various authorities. In a case such as this, general deterrence is usually given primacy over considerations that are personal to the offender. That means that the sentence should not only be one that punishes the offender, but should be one that deters other people from behaving in the way this offender did on our roads. The need for public deterrence usually outweighs the fact that a particular offender such as this young man might have already learned his lesson."
Her Honour referred to further aggravating features of the case (ROS15-16): "In addition, where the offending involves intoxication of the offender, there is a particular need for sentences to adequately reflect general deterrence. Ultimately, regard has to be had for what is said in the guideline judgment of Whyte to which I have already referred. That is a typical case as identified, indeed this is somewhat more serious than the typical offence where a full time custodial sentence of less than two years in a case of grievous bodily harm would generally not be appropriate. In addition he has to be sentenced for the offence relating to the police pursuit. I recognise that the case of Whyte is a guide or check and there are matters requiring the exercise of the broad discretion in the Court when all of the relevant factors are taken into account."
The sentencing Judge concluded that full-time imprisonment was the only appropriate sentence (ROS16): "I have come to the view that the only appropriate sentence is one of full-time imprisonment. Alternatives to full-time custody are not appropriate, it is far too serious. I will make a finding of special circumstances as this is not only his first time in custody, but his first offence at all and more particularly, he is far from supportive family and friends, given that they are in Ireland. Not only will he be deprived of visits from those who might support him, but from phone calls and contact of that kind."
A finding of special circumstances was made with the sentencing Judge referring to the Applicant's psychological condition and noting that "will make his time in custody somewhat more difficult than other prisoners" as well as his relatively young age (ROS16).
Her Honour determined that some degree of notional accumulation was required because of the separate offences and then noted the indicative sentences before imposition of the aggregate sentence referred to earlier in this judgment.

The Sole Ground of Appeal - The Aggregate Sentence was Manifestly Excessive The Applicant's Submissions

Mr Averre, counsel for the Applicant, submitted that the aggregate sentence in this case was manifestly excessive by reference to the component of that sentence referable to the s.52A(4) offence. He submitted that the indicative sentence for this offence was erroneous so that the Court should find that the aggregate sentence itself was manifestly excessive: JM v R (2014) 246 A Crim R 528; [2014] NSWCCA 297 at 40.
Counsel made submissions by reference to the guideline judgment in R v Whyte, submitting that the Applicant's prescribed concentration of alcohol was not far above the prescribed reading of 0.15 contained in s.52A(7)(a) (as defined in s.52A(9)) as a statutory aggravating circumstance. It was acknowledged that a further aggravating circumstance existed in this case being the fact that the Applicant was driving at a speed which exceeded the speed limit by more than 45 kilometres per hour for the purpose of s.52A(7)(b) of the Act.
No challenge was made to her Honour's finding that there was a high degree of moral culpability in this case.
Counsel for the Applicant challenged a starting point (before application of the 25% discount) of five years' imprisonment for the s.52A(4) offence given the prescribed concentration of alcohol in this case, the finding of the sentencing Judge that Mr Mullan's injuries did not fall into the more serious range for injuries, the fact that Mr Mullan was not a stranger and the Applicant's very powerful subjective case, including his prior good character, deep remorse and good prospects of rehabilitation. It was submitted that a starting point of five years' imprisonment for the s.52A(4) offence was unjust and unreasonable in all of the circumstances of the case.
Counsel for the Applicant relied upon sentencing statistics in support of this submission. Whilst acknowledging the limitations upon sentencing statistics, it was argued that the information may still provide assistance in determining whether the sentence was manifestly excessive. The Applicant's written submissions referred to statistics for s.52A(4) offences in different periods, with reference being made as well to a number of decisions on sentence for this class of offence.
It was submitted that the Court should conclude from the statistical information that, from the period before sentencing reforms made in September 2018, in just under 12% of cases had a higher sentence been imposed than the indicated sentence for the Applicant's s.52A(4) offence with lower sentences being imposed in some 80% of cases. The Applicant has the highest sentence for a s.52A(4) offence committed since the sentencing reforms made in September 2018.
Counsel for the Applicant also referred to a number of other sentencing decisions in support of a submission that the indicative sentence for the s.52A(4) offence was manifestly excessive. In this regard, reference was made to decisions including Brookes v R [2009] NSWCCA 265, R v Kyle [2014] NSWCCA 300, R v Tuhakaraina [2016] NSWCCA 81, Vale v R [2016] NSWCCA 154, Priovolidis v R [2016] NSWCCA 201, Ul-Hassan v R [2018] NSWCCA 177, Reddy v R [2018] NSWCCA 212, Lawson v R [2018] NSWCCA 215 and a number of District Court sentencing decisions.
It was submitted that an examination of these sentencing decisions supported the Applicant's contention that the indicative sentence for the s.52A(4) offence in this case was manifestly excessive such that a conclusion should be reached that the aggregate sentence itself was manifestly excessive. Submissions for the Crown
The Crown submitted that on an appeal against an aggregate sentence, the principal focus in determining whether the sentence was manifestly excessive is whether the aggregate sentence reflects the total criminality of the offences: XZ v R [2018] NSWCCA 76 at [62]. It was acknowledged that although an indicative sentence itself is not amenable to appeal, it may be a guide as to whether error is established in relation to the aggregate sentence: JM v R at [40].
Contrary to the Applicant's submissions, the Crown submitted that neither the indicative sentence for the s.52A(4) offence nor the aggregate sentence was unreasonable or plainly unjust so as to constitute a manifestly excessive sentence. The Crown pointed to the following features in support of this submission: 1. the maximum penalty for a s.52A(4) offence is 11 years' imprisonment and this is a statutory guidepost; 2. the circumstance of aggravation alleged in the Court Attendance Notice was that the Applicant had the statutory prescribed concentration of alcohol present in his blood (0.150 or more) and Dr Perl had reported that, at the time of the collision, the Applicant's blood alcohol concentration was between 0.155 and 0.180 and his ability to drive would have been very substantially impaired; 3. the Applicant's s.52A(4) offence also involved a second circumstance of aggravation in that he drove the vehicle at a speed which exceeded the applicable speed limit by more than 45 kilometres per hour - the speed analysis indicated that the Applicant had travelled at an average speed of approximately 139 kilometres per hour on a road with speed limits ranging from 40 to 70 kilometres per hour - the fact that the speed of the vehicle was so significantly over the speed limit for considerable periods of time increased the importance of this aggravating feature; 4. the offence committed by the Applicant was very serious - he drove a vehicle on a public road whilst heavily intoxicated by alcohol and veered into the path of an oncoming police vehicle before driving away at high speed and overtaking other vehicles by crossing onto the wrong side of the road - he continued to drive at an excessive speed for another 8.1 kilometres until he lost control of the vehicle and collided with a rail whilst travelling at approximately 128 to 136 kilometres per hour; 5. the collision and subsequent rolling of the vehicle caused Mr Mullan to be ejected from the vehicle and collide with a tree - he suffered grievous bodily harm as a result including spinal and rib fractures, a collapsed lung and injuries to his liver - these injuries necessitated surgery, the use of a "halo" brace for 12 weeks and subsequent physiotherapy - although he had largely recovered, Mr Mullan suffers permanent disability and is therefore unable to work in his (now former) occupations as a stonemason and steel fixer; 6. the sentencing Judge found that the Applicant had a high degree of moral culpability and this finding is not challenged by the Applicant; 7. the sentencing Judge correctly recognised that general deterrence is usually given primacy over considerations that are personal to the offender in a case such as this, including subjective features of an offender such as youth, good character, a clear record and remorse: R v Jurisic (1998) 45 NSWLR 209 at 228; 8. as this offence was one in which the Applicant drove whilst intoxicated by alcohol, there was a particular need for the sentence to adequately reflect general deterrence: R v Carruthers (2008) 182 A Crim R 481; [2008] NSWCCA 59 at [29].
When these considerations are taken into account, the Crown submitted that the indicative sentence for the s.52A(4) offence was not unreasonable or plainly unjust. As a degree of notional accumulation was appropriate to reflect the separate criminality of the s.51B police pursuit offence, it was submitted that the aggregate sentence was not manifestly excessive.
To the extent that the Applicant sought to rely upon the guideline judgment in R v Whyte, the Crown submitted that the s.52A(4) offence was an aggravated offence which required an appropriate increment to reflect the higher maximum penalty and higher level of moral culpability in the Applicant's case: R v Whyte at [231].
The Crown submitted that caution must be exercised in the use of statistics in support of a sentence appeal. It was submitted that the fact that a sentence may fall towards the top of a statistical range is not determinative of manifest excess: Owen v R [2017] NSWCCA 54 at [76]. It was submitted that the very serious circumstances of the present offence serve to explain why a substantial indicative sentence was nominated for the s.52A(4) offence in this case.
The Crown submitted that sentencing statistics did not provide assistance to the Applicant in support of this ground of appeal.
With respect to the Applicant's reliance upon comparative cases, the Crown noted the limitations upon the use of comparative cases in support of a ground alleging manifest excess: Vandeventer v R [2013] NSWCCA 33 at [45].
To the extent that the comparative cases relied upon by the Applicant are said to provide some guidance, the Crown submitted that they tend to suggest that the indicative sentence for the s.52A(4) offence was within an appropriate range. The Crown submissions addressed particular features of the comparative cases relied upon by the Applicant in support of this submission.
The Crown submitted that the Applicant had not established that the indicative sentence for the s.52A(4) offence was manifestly excessive either by reference to the guideline judgment in R v Whyte or the statistics and comparative cases upon which he relies. The Crown noted that the Applicant did not contend that the indicative sentence for the s.51B(1) offence was excessive.
It was submitted that a degree of notional accumulation was required and that no challenge is made by the Applicant to the notional period of accumulation of six months utilised in fixing the aggregate sentence.
The Crown noted that a finding of special circumstances had been made with a very generous ratio being utilised with the non-parole period constituting 52.9% of the total sentence.
The Crown submitted that the objective gravity of the offences was substantial and the Applicant's moral culpability was high. It was important, as the sentencing Judge recognised, that the Applicant's strong subjective case not lead to inadequate weight being given to the objective gravity of the offences.
The Crown submitted that the Applicant had not demonstrated that the aggregate sentence was manifestly excessive. Decision
It is necessary to keep in mind the approach to be taken by this Court in determining a ground of appeal which asserts that a sentence is manifestly excessive.
In Obeid v R (2017) 96 NSWLR 155 at 241; [2017] NSWCCA 221, this Court said at [443]: "When it is contended that a sentence is manifestly excessive it is necessary to have regard to the following principles derived from House v The King (1936) 55 CLR 499; [1936] HCA 40 at 505; Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29 at [15]; Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6]; Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [58]; Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25], [27]; and Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [59]. * Appellate intervention is not justified simply because the result arrived at in the court below is markedly different from sentences imposed in other cases. * Intervention is only warranted where the difference is such that it may be concluded that there must have been some misapplication of principle, even though where and how is not apparent from the reasons of the sentencing judge, or where the sentence imposed is so far outside the range of sentences available that there must have been error. * It is not to the point that this Court might have exercised the sentencing discretion differently. * 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. * It is for the applicant to establish that the sentence was unreasonable or plainly unjust."
It is open to the Applicant to contend that the indicative sentence for the s.52A(4) offence is manifestly excessive in support of an argument that the aggregate sentence itself is erroneous. However, on an appeal against an aggregate sentence, the principal focus of a ground alleging manifest excess will be whether the aggregate sentence reflects the total criminality of the offences: XZ v R at [62].
As the extracts from the sentencing remarks set out earlier demonstrate, the sentencing Judge outlined succinctly and accurately the factors which bore upon sentence in this case. The aspects of the s.52A(4) offence referred to by the Crown (see [92] above), emphasise the gravity of the Applicant's offence and the high degree of moral culpability involved in it.
In addition, the Applicant was on notice that evening of the particular need to guard against driving after consuming alcohol. Just hours earlier, Mr Mullan had been subjected to a roadside breath test and had apparently passed. Far from taking note of this particular warning or reminder of the need to comply with the law, the Applicant then consumed a considerable amount of alcohol before setting off behind the steering wheel of his vehicle, on the journey from Yamba to Maclean. It is clear that the Applicant was well affected by alcohol at that time.
A short way into the journey, the Applicant was confronted with the reality of his circumstances when he almost collided with a police vehicle which then took pursuit after his vehicle. Rather than pulling over and facing the consequences of his actions, the Applicant set off at a great speed on a rural road placing other members of the public at risk as well as his friend, Mr Mullan.
It is pertinent to note the circumstances of aggravation which can render a s.52A(3) offence of dangerous driving occasioning grievous bodily harm (punishable by imprisonment for seven years), an offence of aggravated dangerous driving occasioning grievous bodily harm under s.52A(4) (punishable by imprisonment for 11 years). Section 52A(7) specifies the circumstances of aggravation: "(7) Circumstances of aggravation In this section, circumstances of aggravation means any circumstances at the time of the impact occasioning death or grievous bodily harm in which - (a) the prescribed concentration of alcohol was present in the accused's breath or blood, or (b) the accused was driving the vehicle concerned on a road at a speed that exceeded, by more than 45 kilometres per hour, the speed limit (if any) applicable to that length of road, or (c) the accused was driving the vehicle to escape pursuit by a police officer, or (d) the accused's ability to drive was very substantially impaired by the fact that the accused was under the influence of a drug (other than intoxicating liquor) or a combination of drugs (whether or not intoxicating liquor was part of that combination)."
The circumstance of aggravation relied upon in the charge against the Applicant was that contained in s.52A(7)(a) in that the prescribed concentration of alcohol was present in his breath or blood. In this respect, s.52A(9) defines "prescribed concentration of alcohol" as "a concentration of 0.15 grammes or more of alcohol in 210 litres of breath or 100 millilitres of blood".
As noted earlier (at [41]-[42]), the Applicant returned a reading of 0.151 at 2.40 am on 3 November 2018. The expert opinion of Dr Perl was that the Applicant's blood alcohol concentration at the time of the collision was between 0.155 and 0.180 grammes of alcohol in 100 millilitres of blood. The evidence of persons who observed the Applicant after the collision described him as being well affected by alcohol.
A further circumstance of aggravation in this case, which the Court was entitled to take into account, was that referred to in s.52A(7)(b) being the fact that the Applicant was driving the vehicle on a road at a speed which exceeded the speed limit by more than 45 kilometres per hour. The Applicant's very high speed on a rural road was mentioned earlier in this judgment (at [33]-[40]), with the speed at the time of the collision being in the range of 128 to 136 kilometres per hour in a 60 kilometres per hour area. This aspect was an especially aggravating feature of the offence.
It will be noted that a further statutory aggravating factor in s.52A(7)(c) is that the person was driving a vehicle to escape pursuit by a police officer. That factor did exist in this case, but was addressed by the separate s.51B(1) offence. As her Honour recognised, this aspect could not be double counted against the Applicant by use of it as a statutory aggravating factor for the s.52A(4) offence.
However, in determining the aggregate sentence, the separate s.51B(1) offence was to be taken into account in a manner which emphasised the particular gravity of the Applicant's total criminality arising from these events.
As noted earlier, the description of the Applicant's course of driving, and the movement of the vehicle from the time it left the road until it reached its resting place, emphasises the good fortune of the Applicant and Mr Mullan that the two men did not die in this incident. This observation is fortified by the photographs of the wreckage of the Applicant's vehicle reproduced earlier in this judgment.
Despite being thrown some 40 metres from the vehicle, Mr Mullan survived although sustaining very serious injuries. The fact that Mr Mullan has made a substantial recovery from these injuries is fortunate for him and the Applicant. However, Mr Mullan, who was only 26 years old at the time of this incident, has sustained permanent injury which will restrict his capacity to work in areas in which he did in the past, including the family stonemason business in Ireland. The sentencing Judge had proper regard to the extent of the injuries to Mr Mullan in determining sentence in this case.
The Applicant is not assisted by reference to the guideline judgment in R v Whyte for a basic s.52A(3) offence. In nominating an indicative sentence for the s.52A(4) offence, it was necessary, as her Honour observed, that an appropriate increment be allowed to reflect the higher maximum penalty and the higher level of moral culpability involved in that offence: R v Whyte at [231].
As the sentencing Judge recognised, the Applicant had a strong subjective case on sentence. He had no prior convictions although he had a number of speeding offences committed in Australia in the months prior to the present offences. Other aspects of the Applicant's subjective case are not unusual features when Courts sentence for offences of this type.
Her Honour had proper regard to the Applicant's remorse and the concern which he had expressed for the injuries caused to his friend, Mr Mullan, arising from these offences. The fact that Mr Mullan bears no grudge towards the Applicant was not relevant to the determination of sentence as the attitude of the victim, whether forgiveness or vengeance, should play no part on sentence: R v Palu (2002) 134 A Crim R 174; [2002] NSWCCA 381 at [37].
In R v Whyte, Spigelman CJ referred (at [157]-[158], [233]) to the need for reasonable proportionality between a sentence and the circumstances of the crime by reference to the objective gravity of the offence, citing R v Dodd (1991) 57 A Crim R 349 at 354.
As the Court (Gleeson CJ, Lee CJ at CL and Hunt J) observed in R v Dodd at 354, the "relative importance of the objective facts and subjective features of a case will vary" and "there is sometimes a risk that attention to persuasive subjective considerations may cause inadequate weight to be given to the objective circumstances of the case" contrary to the requirement for reasonable proportionality between a sentence and the circumstances of the crime. This principle was emphasised in R v Whyte and was applied by the sentencing Judge in this case in an appropriate fashion.
The Applicant is not assisted, in support of this ground of appeal, by reference to sentencing statistics. As counsel for the Applicant acknowledged, there is limited information provided in the statistical data with respect to objective seriousness, the subjective circumstances of offenders, the presence or absence of aggravating and mitigating factors, prospects of rehabilitation or remorse for the offending.
Having considered the statistical information placed before the Court, I do not think it advances the Applicant's case. The fact that the Applicant's sentence falls towards the top of a statistical range is explained by the objective gravity of his offending which was to be reflected in a reasonably proportionate sentence in accordance with sentencing principles.
It is appropriate to say something about the comparative cases relied upon by the Applicant. Counsel for the Applicant submitted that some assistance may be gleaned from these decisions although he acknowledged the limitations expressed concerning this class of material in a sentencing appeal.
In The Queen v Pham (2015) 256 CLR 550; [2015] HCA 39 at [50], Bell and Gageler JJ said that "comparable cases decided by intermediate courts of appeal provide the most useful guidance to a sentencing judge" and that those "reasons reveal the mix of factors that were taken into account and will usually involve consideration of the appropriateness of the sentence imposed at first instance".
In Director of Public Prosecutions (Vic) v Dalgliesh (a Pseudonym) (2017) 262 CLR 428; [2017] HCA 41, Gageler and Gordon JJ said at [83] (footnotes omitted): "Sentences are not binding precedents, but are merely 'historical statements of what has happened in the past'. As was said in Hili v The Queen, '[t]hat history does not establish that the range is the correct range, or that the upper or lower limits to the range are the correct upper and lower limits' (emphasis added). Examination of sentences imposed in comparable cases may inform the task of sentencing but such examination goes beyond its rationale when it is used to fix boundaries that, as a matter of practical reality, bind the court."
With those principles in mind, I will consider the cases relied upon by the Applicant.
In Reddy v R, the 32-year old offender pleaded guilty to a single offence under s.52A(4) and was sentenced to a term of three years and five months' imprisonment with a non-parole period of two years. The circumstance of aggravation was driving with a blood alcohol concentration of 0.27. The offender was travelling at speed and collided with a vehicle, causing injury to the victim by way of fractures to the vertebrae and ribs. On appeal, this Court observed (at [39]) that, bearing in mind the principle of proportionality, a sterner sentence would have been justified were it not for the offender's "compelling subjective case". Because of a failure to backdate the sentence to allow for a period of quasi-custody, the sentence was confirmed but backdated.
Although the offender in Reddy v R had a higher blood alcohol level than the Applicant, the offence did not involve a second aggravating circumstance of exceeding the speed limit by more than 45 kilometres per hour. Further, unlike Mr Mullan, the facts do not record that the victim ceased to work in her occupation following her injuries. In addition, there was no further warning sign in that case such as occurred here when the Applicant observed Mr Mullan being breath tested some hours before the commission of the offences.
In Lawson v R, the 20-year old offender pleaded guilty to one offence under s.52A(4) and a further offence of failing to stop to give assistance under s.52AB(2) Crimes Act 1900. An indicative term of three years and six months' imprisonment was specified in relation to the s.52A(4) offence as part of an aggregate sentence of imprisonment for four years with a non-parole period of two years and six months. The circumstance of aggravation was driving at a speed more than 45 kilometres above the speed limit. The victim suffered significant injuries including facial and arm injuries and brain injury causing some memory loss and some diminution of cognitive function. On appeal, this Court observed (at [42]-[43]) that, but for reduction of the offender's moral culpability on account of mental illness, the objective seriousness of the s.52A(4) offence would have been "well above the mid-range" so that "a sentence considerably longer than three years and six months would have been called for". This sentence was upheld on appeal.
The victim in Lawson v R suffered more serious injuries than Mr Mullan. However, unlike the Applicant, the offender was not intoxicated by alcohol at the time of the offence. Additionally, the offender was suffering from paranoid schizophrenia which was found to have materially contributed to his offending, thereby reducing his moral culpability and making his case a less appropriate vehicle for general deterrence.
In Ul-Hassan v R, the 24-year old offender pleaded guilty to three offences under s.52A(4), with a further offence of driving with the mid-range prescribed concentration of alcohol placed on a certificate under s.166 Criminal Procedure Act 1986. He was sentenced by way of an aggregate sentence of imprisonment for six years with a non-parole period of three years. On appeal, the offender was resentenced to an aggregate term of five years' imprisonment with a non-parole period of two years and six months. An indicative term of two years and six months' imprisonment was nominated for each of the s.52A(4) offences. The circumstance of aggravation was travelling at more than 45 kilometres at the time of the collision. Each victim sustained multiple fractures.
Although affected by alcohol, the offender in Ul-Hassan v R had less than the prescribed concentration of alcohol in his blood at the time of the collision. On resentence, the offender tendered evidence that each of the victims had fully recovered. He had also made monetary payments on their behalf and assisted them in obtaining employment which was found to be a form of extra-curial punishment.
In R v Tuhakaraina, the 48-year old offender pleaded guilty to a single offence under s.52A(4) and was sentenced to two years and six months' imprisonment with a non-parole period of six months. The circumstance of aggravation was driving with a blood alcohol concentration of between 0.187 and 0.207. The victim sustained significant injuries including fractures with likely lifelong functioning impairment.
On a Crown appeal in R v Tuhakaraina, the Court declined to intervene but the Court observed (at [98]) that the head sentence could be regarded as "very lenient" and that a "considerably higher non-parole period" was warranted. Additionally, whilst the offender had a higher blood alcohol level than the present Applicant, the offence did not involve a second aggravating circumstance of exceeding the speed limit by more than 45 kilometres per hour.
In Brookes v R, the offender pleaded guilty to two offences under s.52A(4). He was sentenced to a total term of three years and six months' imprisonment with a non-parole period of two years. Individual terms of three years were fixed for each of the two s.52A(4) offences. The circumstance of aggravation was driving with a blood alcohol concentration of 0.162. Those sentences were upheld on appeal. The injuries sustained by the two victims are not detailed in the judgment. The offender had a worse subjective case than the Applicant due to his criminal history, but his offences did not involve a second aggravating circumstance of exceeding the speed limit by more than 45 kilometres per hour.
In R v Kyle, the 27-year old offender pleaded guilty to a single s.52A(4) offence. At the time of the collision, which caused permanent disabling injuries to the victim, the offender had a blood alcohol concentration alcohol of 0.206. There was no second aggravating circumstance of speeding nor did the offence involve a police pursuit. The offender had no prior criminal history. The offender was sentenced in the District Court to imprisonment for three years with a non-parole period of one year and nine months. On a Crown appeal, the sentence was increased to imprisonment for four years and six months with a non-parole period of two years and nine months.
In Priovolidis v R, the 45-year old offender pleaded guilty to one s.52A(4) offence and one s.51B(1) offence. A collision occurred during a police pursuit when the offender, whilst travelling at speed, crossed onto the wrong side of the road and collided with another vehicle, causing the 72-year old victim's vehicle to become airborne. Substantial injuries were caused to the victim. The circumstance of aggravation was the fact that the offender was driving to escape pursuit by a police officer. The offender had a criminal history which disentitled him to any leniency. A finding was made that he was genuinely remorseful. A sentence of six years' imprisonment with a three-year non-parole period was fixed for the s.52A(4) offence and a sentence of imprisonment for two years and six months for the s.51B(1) offence. The overall sentence comprised imprisonment for six years and six months with a non-parole period of three years and six months. An appeal against sentence was dismissed. Unlike the Applicant's offence, the offender in this case was not driving with the prescribed concentration of alcohol.
In Vale v R, the 40-year old offender pleaded guilty to a single offence under s.52A(4) and a single offence under s.51B(1). The offender drove a vehicle at high speed during a police pursuit and lost control and crashed into a tree with substantial injuries being caused to a 17-month old child who was in the vehicle. The offender had an extensive criminal history and was on parole at the time of the offences. For the s.52A(4) offence, the offender was sentenced to imprisonment for six years with a non-parole period of three years with an entirely concurrent fixed term of imprisonment of three years for the s.51B(1) offence. An appeal against sentence was dismissed by this Court. Unlike the Applicant's offence, the offender in that case was not driving with the prescribed concentration of alcohol.
In addition to these decisions of this Court, reference was made as well to a number of District Court sentencing decisions which I have also considered, being R v Innes [2009] NSWDC 345; R v Coffee [2010] NSWDC 261; R v Glover [2011] NSWDC 65; R v MacPherson [2017] NSWDC 170 and R v Reay [2018] NSWDC 386. It is sufficient to observe that none of these cases involved the combination of two aggravating factors under s.52A(7), let alone engagement in a police pursuit as part of the total criminality involved in the case.
In my view, consideration of the sentencing decisions relied upon by the Applicant does not demonstrate that the indicative sentence for the s.52A(4) offence in this case fell outside the available range of sentence. The Applicant's offence involved driving whilst significantly affected by alcohol (with a concentration above the statutory prescribed concentration of alcohol) and at very high speeds over an extended distance. He was driving in this way after having observed Mr Mullan being breath tested a few hours before, an event which apparently did not deter him or make him think twice about the wisdom or lawfulness of driving a motor vehicle whilst intoxicated.
In addition, the Applicant was driving in this fashion when being pursued by police. Although this was not a separate statutory aggravating factor for the purpose of the s.52A(4) offence, it formed part of the Applicant's total criminality by reference to the s.51B(1) offence to be reflected in the aggregate sentence.
The gathering of aggravating circumstances in this case was unusual and operated adversely to the Applicant on sentence. Consideration of other sentencing cases does not support the Applicant in his claim of manifest excess.
To succeed on this ground of appeal, it is necessary for the Applicant to demonstrate that the aggregate sentence was unreasonable or plainly unjust: Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25].
In my view, the sentencing Judge considered all factors relevant to the sentencing of the Applicant in a balanced and measured way before fixing an aggregate sentence and nominating indicative sentences which were open and appropriate in the circumstances of the case.
Her Honour had proper regard to the Applicant's strong subjective case and fixed a sentence which was reasonably proportionate to the objective gravity of the Applicant's total criminality. The Applicant has not demonstrated that the sentence was manifestly excessive.
I propose that leave to appeal against sentence be granted, but that the appeal be dismissed.
ADAMSON J: I agree with Johnson J.

McGonigle v R

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