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Representation: Counsel Mr S Whybrow (Appellant) Ms M Jones (Respondent)

Solicitors Aboriginal Legal Service NSW/ACT (Appellant) ACT Director of Public Prosecutions (Respondent)

File Number(s): ACTCA 38 of 2013

Decision under appeal: Court: Supreme Court Before: Nield AJ Date of Decision: 18 June 2013 Case Title: R v Monfries Court File No: SCC 187 of 2012

MURRELL CJ:

The sentences the subject of appeal

1. The appellant appealed against sentences imposed on 18 June 2013. On that day, he was sentenced for offences of culpable driving causing death (contrary to s 29(2) of the Crimes Act 1900 (ACT) (Crimes Act)), culpable driving causing grievous bodily harm (contrary to s 29(4) of the Crimes Act) and taking a vehicle without consent (contrary to s 318(1) of the Criminal Code 2002 (ACT) (Criminal Code)). The offences were committed on 3 May 2012.

2. The maximum available penalties for offences against s 29(2) and s 29(4) of the Crimes Act and s 318(1) of the Criminal Code are, respectively, 14 years’ imprisonment, 10 years’ imprisonment and five years’ imprisonment.

3. The sentencing judge imposed a sentence of 10 years and nine months’ imprisonment for the offence of culpable driving causing death (taking into account three offences of failing to stop after an accident and one offence of failing to give particulars after a collision). His Honour sentenced the appellant to five years and four months’ imprisonment for the offence of culpable driving causing grievous bodily harm. His Honour imposed a sentence of two years and eight months’ imprisonment for the offence of taking a vehicle without consent. In each case, the sentence deemed to be otherwise appropriate was reduced by 10% for the plea of guilty, i.e. the sentences were reduced from 12 years’ imprisonment, six years’ imprisonment and three years’ imprisonment respectively.

4. The appellant submitted that the sentences imposed for the offences of culpable driving causing death and taking a vehicle without consent were “manifestly excessive”.

5. When the offences were committed on 3 May 2012, the appellant was on bail for offences of assault occasioning actual bodily harm and common assault. After the subject offences were committed, he was sentenced for the assaults to 13 months’ imprisonment from 14 March 2012 to 13 April 2013.

6. On 16 March 2012, Refshauge J had sentenced the appellant for an offence of attempting to obtain money by deception and other matters. A sentence of 12 months’ imprisonment for attempting to obtain money by deception was commenced on 28 January, and was suspended from 16 March 2012. As at 3 May 2012, the appellant was serving the suspended portion of that sentence.

On 18 June 2013, the sentencing judge resentenced the appellant for the offence of attempting to obtain money by deception, imposing a sentence of 12 months’ imprisonment. No allowance was made for the period spent in custody from 28 January 2012 to 16 March 2012.

7. In summary, on 18 June 2013 the sentencing judge imposed the following sentences:

attempt to obtain money by deception 12 months 14/9/12 – 13/9/13 take vehicle without consent 2 years 8 months 14/1/13 – 13/9/15 culpable driving – grievous bodily harm 5 years 4 months 14/1/14 – 13/5/19 culpable driving – death 10 years 9 months 14/1/15 – 13/10/25

8. A nonparole period was set to start on 14 March 2012 and end on 13 January 2022.

9. As a result of the sentences imposed on 18 June 2013, the appellant was to be imprisoned for 13 years and seven months (from 14 March 2012 to 13 October 2025), of which 12 years and nine months (from 14 January 2013 to 13 October 2025) related to the offences committed on 3 May 2012. He was to serve a nonparole period of nine years and 10 months (14 March 2012 to 13 January 2022), representing 72% of the total period of imprisonment.

10. On 19 November 2013, Penfold J sentenced the appellant for an offence of riding or driving a motor vehicle without consent that had been committed three days before the subject offences. Her Honour imposed a sentence of 19 months’ imprisonment from 14 October 2024 to 13 May 2026 (reduced for the plea of guilty by 20% from a starting point of two years’ imprisonment) and extended the appellant’s nonparole period by two months to 14 March 2022 (ten years from 14 March 2012).

The facts

11. At about 4.00pm on 3 May 2012 the appellant stole a motor vehicle from a public car park in Manuka. He hot-wired the vehicle and drove it towards Woden. He was under the influence of alcohol and cannabis.

12. At about 4.30 pm he performed a “burnout” near an oval in Hughes. He then drove towards the intersection of Webster and Groom Streets, Hughes. The offender caused the vehicle to collide with a vehicle that was stationary at the intersection, and that vehicle spun 180 degrees. The offender failed to stop. He proceeded at speed along Groom Street. A witness to the collision called police and then followed the appellant’s vehicle. The appellant stopped to inspect the considerable front end damage to the vehicle that he was driving. He then drove in an erratic manner to a service station in Hughes. At the service station, he stopped, filled the vehicle with petrol and, without paying, drove away at high speed.

13. In Garran, police observed the damaged vehicle. Because of the speed at which it was travelling, they followed it but did not give pursuit. The appellant drove through a red light at the intersection of Yamba Drive and Kitchener Street, travelling at a speed of 118 km/h in a 60 km/h speed zone. Police activated their sirens. The appellant continued down Yamba Drive, and approached the Canberra Hospital. He came to a second red light, which was at a pedestrian crossing at the intersection of Yamba Drive and Bateson Road, immediately outside Canberra Hospital.

14. At about 4.35 pm, the victims and Ms Strapps, who were employees at the Hospital, had finished work and were crossing the pedestrian crossing in accordance with a green “walk” sign. Ms Strapps was walking ahead of Ms Bumpus, and Ms Cox was the last to cross.

15. The appellant’s vehicle passed behind Ms Strapps. The driver’s side of the vehicle struck Ms Bumpus, propelling her forward. She landed on her right leg, sustaining very serious injuries; a comminuted fracture of her left thigh, a fracture dislocation of the right knee joint with torn ligaments, and a dislocated right ankle joint. The passenger’s side of the vehicle hit Ms Cox, who died instantly.

16. The appellant continued to drive along Yamba Drive for about 150 metres, until his vehicle collided with a 4-wheel drive vehicle, pushing the 4-wheel drive vehicle into another vehicle and forcing the appellant’s vehicle to stop. The appellant attempted to flee on foot, but was apprehended by police. Testing revealed a blood alcohol content of 0.099 grams of alcohol per 100 ml of blood. Cannabis was also detected.

17. The following day, the appellant appeared in the Magistrates Court and was charged with the subject offences, the additional offences, and manslaughter (which carries a maximum penalty of 20 years’ imprisonment). No plea was entered and the matter was adjourned to 15 June 2012.

18. The appellant was interviewed soon after the offences, and he made significant admissions. He also made some misleading assertions.

19. On 8 March 2013, the appellant pleaded guilty to the matters before the Court.

Nature of the appeal

20. A sentence appeal calls into question what is a quintessentially discretionary decision. Preservation of the sentencing discretion is of vital importance to the administration of criminal justice: Lowndes v The Queen (1999) 195 CLR 665 at [15].

21. On such an appeal, the appellant must demonstrate an error in the exercise of the discretion. It may be a specific error such as the application of wrong principle, the consideration of extraneous or irrelevant matters, or making a mistake about the facts: House v The King (1936) 55 CLR 499 per Dixon, Evatt and McTiernan JJ at 505, Dinsdale v The Queen (2000) 202 CLR 321 per Kirby J (Gummow and Gaudron JJ agreeing) at [58] (Dinsdale). Alternatively, error may be inferred because the sentence is “manifestly excessive”; but manifest excess is a conclusion that can be drawn only if the excess is “plainly apparent” in that the sentence is “unreasonable or plainly unjust”: Dinsdale per Gleeson and Hayne JJ at [6]. “Manifest excess” is not established just because the appeal court would have imposed a more lenient sentence: R v Ellis (1993) 68 A Crim R 449 at 461 per Hunt CJ at CL, Balthazaar v The Queen [2012] ACTCA 26 at [61].

22. Whether a sentence is “manifestly excessive” must be considered in the context of the legislated maximum penalty that applies to the “worst possible case” and provides a “yardstick” for assessing the appropriate penalty: Markarian v The Queen (2005) 228 CLR 357 at [31]. The objective seriousness of the particular offence and the subjective circumstances of the offender are critical to determining whether a sentence lies within the available range.

23. In support of a case of “manifest excess”, an appellant should identify matters that support a conclusion (or necessary inference) of error: R v Campbell [2010] ACTCA 20 at [32], R v Thorn [2010] ACTCA 10 at [33].

24. In this case, the appellant endeavoured to support a conclusion of manifest excess by advancing the following submissions.

25. The 10% discount for the pleas of guilty did not adequately reflect the timing and circumstances of the pleas, or the remorse and contrition associated with them. 2. The sentencing judge failed to take proper account of the appellant’s mental health problems, dismissing them as not causally linked to the offending behaviour. 3. The sentencing judge failed to take proper account of current sentencing practice in the ACT, and to have proper regard to sentences imposed in other cases, both in the ACT and elsewhere in Australia. 4. The sentencing judge identified the offence of taking a motor vehicle without consent as one within the low range of objective seriousness, yet his Honour imposed a relatively high sentence.

Discount for the pleas of guilty

25. The sentencing judge made these observations about the appellant’s pleas of guilty at [35]–[38]:

On 4 May 2012 the offender was charged with the subject offences. He appeared on a number of occasions before a magistrate in the Magistrates Court in relation to the charges. On 17 August 2012 he was committed by a magistrate in the Magistrates Court to this court to stand his trial. He appeared on a number of occasions before a judge of this court in relation to the charges. On 8 March 2013 he pleaded guilty to each of the subject offences. It cannot be said that the offender entered his guilty pleas to the subject offences early. Indeed, it could be said that he entered his guilty pleas at the last minute. However, his guilty pleas have value. They have confirmed the Crown’s cases. They have relieved Ms Bumpus of the need to give evidence during a trial. They have relieved Mr Cox and Ms Peake of the need to relive the death of Ms Cox. They have saved time and expense. They have facilitated the course of justice. However, the Crown’s case was strong to the point of being overwhelming, and it is a factor in determining the value of the offender’s guilty pleas. I have decided to discount the sentences that I will impose upon the offender for the subject offences by 10 per cent on account of his guilty pleas.

26. The sentencing judge doubted that the appellant’s pleas of guilty reflected remorse. Rather, his Honour considered that the guilty pleas reflected the appellant’s realisation that the Crown case was strong: at [59].

27. On the appeal, the appellant read an affidavit of his solicitor. The affidavit evidenced that at no stage did the appellant dispute the critical facts and circumstances of the subject offences. Before the appellant was committed for trial, he sought particulars of the manslaughter charge, but particulars were never provided. The charges (including the charge of manslaughter) were committed to the Supreme Court for trial, and were first listed before the Registrar on 30 August 2012. Three adjournments were occasioned because the Crown had not filed documents. In December 2012, the appellant’s counsel raised the possibility that the appellant would plead guilty to the culpable driving offences. On 21 February 2013, before a trial date had been set, the appellant’s solicitor wrote to the DPP stating that the appellant would plead guilty to those offences. On 22 March 2013, the appellant was arraigned and pleaded not guilty to manslaughter but guilty to culpable driving. The Crown declined to proceed on the manslaughter charge.

28. Sections 33(1)(j) and 35 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act) require a sentencing court to consider a plea of guilty. Other factors that the sentencing court is required to consider include assistance in the administration of justice, including pre-trial disclosure (s 33(1)(k) and s 35A), and whether the offender has demonstrated remorse (s 33 (1)(w)). Section 33(1) does not limit the matters that a court may consider in deciding how an offender should be sentenced: s 33(3).

29. Section 35 of the Sentencing Act provides:

35 Reduction of sentence—guilty plea (1) This section applies if— (a) an offender pleads guilty to an offence; and (b) based on the information currently available to the court, the court considers that there is a real likelihood that it will sentence the offender to imprisonment. (2) In deciding how the offender should be sentenced (if at all) for the offence, the court must consider the following matters: (a) the fact that the offender pleaded guilty; (b) when the offender pleaded guilty, or indicated an intention to plead guilty; (c) whether the guilty plea was related to negotiations between the prosecution and defence about the charge to which the offender pleaded guilty; (d) the seriousness of the offence; (e) the effect of the offence on the victims of the offence, the victims’ families and anyone else who may make a victim impact statement. (3) The court may impose a lesser penalty (including a shorter nonparole period) on the offender than it would otherwise have imposed if the offender had not pleaded guilty to the offence. (4) However, in deciding any lesser penalty, the court must not make any significant reduction for the fact that the offender pleaded guilty if, based on established facts, the court considers that the prosecution’s case for the offence was overwhelmingly strong. (5) For subsection (2) (b), the earlier in the proceeding that the guilty plea is made, or indication is given that it will be made, the lesser the penalty the court may impose. (6) A lesser penalty imposed under this section must not be unreasonably disproportionate to the nature and circumstances of the offence.

30. Section 35(2)(d) and (4) appear to modify the nature of the conventional discount for utilitarian value, which is unaffected by the strength of the prosecution case; see [44] below. The application and effect of s 35(2)(d) and (4) were not fully argued on appeal. The parties proceeded on the basis that, while the provisions impact upon a discount for plea of guilty, in general, the proper approach to discounts is that stated in R v Thomson (2000) 49 NSWLR 383 (Thomson).

31. Similarly, s 35(2)(e) appears to modify the conventional approach to a discount for the utilitarian value of a guilty plea and to raise questions about the role of victim considerations in sentence discounts. On the one hand, there is a well established general principle that a discount may be given for sparing vulnerable victims the need to give evidence: see [55] below. Obvious public policy considerations lie behind this rule. On the other hand, s 35(2)(e) of the Sentencing Act requires a s 35 discount to take into account the effect of the offence on the victim. Section 33(1)(f) also requires a sentencing court to consider the effect of the offence on the victim and the victim’s family. It seems most unlikely that the legislature intended the same consideration to be counted twice. In any event, on the appeal no argument was put to the effect that, in this case, “the effect of the offence on the victims” was a matter that significantly affected the appropriate discount for a plea of guilty.

32. In NSW, s 22 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (Sentencing Procedure Act) contains provisions that are similar to s 35(2)(a) and (b) of the Sentencing Act and provisions that require a sentencing court to take into account “the circumstances in which the offender indicated an intention to plead guilty” and prevent the imposition of a penalty that is “unreasonably disproportionate to the nature and circumstances of the offence”. However, s 22 of the Sentencing Procedure Act contains no provisions that are similar to those in s 35(2)(d) or (e), or s 35(4) of the Sentencing Act. Consequently, the NSW cases provide no assistance as to the manner in which the Court should approach those provisions.

33. The seminal decision about the nature of sentencing discounts in NSW is the guideline decision of Thomson. At [160], Spigelman CJ (with whom Wood CJ at CL, Foster AJA, Grove and James JJ agreed) said:

The Court should adopt the following guideline applicable to offences against State laws: (i) A sentencing judge should explicitly state that a plea of guilty has been taken into account. Failure to do so will generally be taken to indicate that the plea was not given weight. (ii) Sentencing judges are encouraged to quantify the effect of the plea on the sentence in so far as they believe it appropriate to do so. This effect can encompass any or all of the matters to which the plea may be relevant — contrition, witness vulnerability and utilitarian value — but particular encouragement is given to the quantification of the last-mentioned matter. Where other matters are regarded as appropriate to be quantified in a particular case, for example, assistance to authorities, a single combined quantification will often be appropriate. (iii) The utilitarian value of a plea to the criminal justice system should generally be assessed in the range of 10-25 per cent discount on sentence. The primary consideration determining where in the range a particular case should fall, is the timing of the plea. What is to be regarded as an early plea will vary according to the circumstances of the case and is a matter for determination by the sentencing judge. (iv) In some cases the plea, in combination with other relevant factors, will change the nature of the sentence imposed. In some cases a plea will not lead to any discount.

34. The sparing of the need for vulnerable victims to relive the trauma of an offence by giving evidence at trial was identified as a separate basis upon which an offender may receive a discount for pleading guilty; the other two bases being the utilitarian value of the plea and remorse/contrition (as evidenced by the guilty plea).

35. In Cameron v The Queen (2002) 209 CLR 339 (Cameron) the High Court considered the principles governing a discount for a plea of guilty in the context of the exercise of the judicial power of the Commonwealth and the sentencing legislation of Western Australia. Gaudron, Gummow and Callinan JJ decided that a plea of guilty may operate to reduce a sentence both because it reflects remorse and an acceptance of responsibility and because it demonstrates a “willingness to facilitate the course of justice” (at [11]). However, their Honours found that it was inappropriate to allow a discount for the utilitarian value of a plea because to do so would amount to discriminating against those who insist on their right to trial: at [12]–[14]. In a dissenting decision, at [44], McHugh J expressed a similar view when he said:

If there is one principle that lies at the heart of the judicial power of the Commonwealth, it is that courts, exercising federal jurisdiction, cannot act in a way that is relevantly discriminatory. To deny that proposition is to deny that equal justice under the law is one of the central concerns of the judicial power of the Commonwealth.

36. It may be doubted that the approach to discount in Cameron (i.e. allowing a discount for the willingness to facilitate the course of justice rather than for the utilitarian value of the plea) has had any practical impact on the percentage discount that is routinely allowed in cases where the Commonwealth judicial power is exercised, as compared to cases in which the Thomson discount is applied.

37. In any event, following Cameron, the approach in Thomson was maintained in NSW on the basis that legislation had amended the common law. In R v Sharma (2002) 54 NSWLR 300, at [50]–[53], Spigelman CJ (with whom the other four members of the bench agreed) said:

The Crimes (Sentencing Procedure) Act states that a court must, not may, take into account a plea. Furthermore, what is required to be taken into account is both “the fact” of the plea and “when” it was made. If a lesser penalty is not to be imposed then the court must give reasons. The statutory reference to “the fact” of the plea, as the matter required to be considered, does not direct attention to the subjective intention of the person pleading guilty. Nor, in my opinion, is the element of timing, reflected in the reference to “when” a plea was made, a reference only to subjective elements. The mandatory language of s 22 of the Crimes (Sentencing Procedure) Act must be followed whether or not by doing so the Court can be seen to discriminate, in the sense that word was used in the joint judgment in Cameron, against those who put the Crown to proof. The Court must take the plea into account even if there is no subjective intention to facilitate the administration of justice. However, viewed objectively, there will always be actual, as distinct from intended, facilitation of the administration of justice by reason of the fact of the plea. The use of the word must and the reference to “the fact” of the plea, strongly suggest that the Parliament was not concerned only with subjective elements. The actual facilitation of the administration of justice was to be regarded as relevant by sentencing judges.

38. In relation to the amount of the discount that should be allowed for the utilitarian value of a plea of guilty, in R v Dib [2003] NSWCCA 117 at [5]–[6] Hodgson JA (with whom Barr J agreed) remarked: If a plea is entered a long time after a person is first charged, but at a time when a lesser charge is substituted for a greater charge, the advantages to the administration of justice are less, even though the plea may have been made at the earliest opportunity. There is in any event no entitlement to a 25% discount; and the fact that in this situation there are less advantages to the administration of justice can justify a smaller discount. This approach may mean that in some cases an offender may obtain a lower discount just because the prosecuting authorities initially brought a greater charge than that ultimately pursued, so that the delay in the plea of guilty was not the offender’s fault. But this is consistent with the nature of the discount as being at least in part a recognition of practical advantages, and not merely a recognition of mitigation of culpability.

39. In Burrows v The Queen (2007) 181 A Crim R 333 at [29], Tobias JA (with whom Latham J and Mathews AJ agreed) said:

In R v Thomson; R v Houlton at 419 [160] it was held that the utilitarian value of a plea to the criminal justice system is to be generally assessed in the range of a 10-25% discount on sentence. The primary consideration determining where in the range a particular case should fall, is the timing of the plea for as a general rule the earlier the plea, the greater the advantage to, and the benefits to be derived by, the criminal justice system as a whole. What is to be regarded as an early plea will vary according to the circumstances of the case and is a matter for determination by the sentencing judge.

40. And in R v Borkowski (2009) 195 A Crim R 1 at Howie J observed at [31]:

As a matter of general practice, the maximum discount for the utilitarian value of the plea of guilty should be awarded only to those accused persons who plead guilty in the Local Court and continue that plea of guilty in the District Court. There may be a valid reason in the exercise of discretion for awarding the maximum discount where the plea of guilty does not occur until the District Court but that would be exceptional and arise from the peculiar factual situation in a particular case... It is difficult to see how, in the usual case, a plea of guilty on arraignment could justify a discount of more than about 15 per cent...

41. At [32] his Honour summarised the principles to be applied by NSW sentencing courts in relation to discounts for the utilitarian value of pleas of guilty:

42. The discount for the utilitarian value of the pleas will be determined largely by the timing of the plea so that the earlier the plea the greater discount: Thomson at [154]; Forbes [2005] NSWCCA 377 at [116]. 2. Some allowance may be made in determining the discount where the trial would be particularly complicated or lengthy: Thomson at [154]. 3. The utilitarian discount does not reflect any other consideration arising from the plea, such as saving witnesses from giving evidence but this is relevant to remorse: Thomson at [119] to [123]; nor is it affected by post-offending conduct: Perry [2006] NSWCCA 351. 4. The utilitarian discount does not take into account the strength of the prosecution case: Sutton [2004] NSWCCA 225. 5. There is to be no component in the discount for remorse nor is there to be a separate quantified discount for remorse: MAK and MSK [2006] NSWCCA 381; Kite [2009] NSWCCA 12 or for the "Ellis discount"; Lewins [2007] NSWCCA 189; S [2008] NSWCCA 186. 6. Where there are multiple offences and pleas at different times, the utilitarian value of the plea should be separately considered for each offence: SY [2003] NSWCCA 291 7. There may be offences that are so serious that no discount should be given: Thomson at [158]; Kalache [2000] NSWCCA 2; where the protection of the public requires a longer sentence: El-Andouri [2004] NSWCCA 178. 8. Generally the reason for the delay in the plea is irrelevant because, if it is not forthcoming, the utilitarian value is reduced: Stambolis [2006] NSWCCA 56; Giac [2008] NSWCCA 280. 9. The utilitarian value of a delayed plea is less and consequently the discount is reduced even where there has been a plea bargain: Dib [2003] NSWCCA 117; Ahmad [2006] NSWCCA 177; or where the offender is waiting to see what charges are ultimately brought by the Crown: Sullivan and Skillin [2009] NSWCCA 296; or the offender has delayed the plea to obtain some forensic advantage: Stambolis [2006] NSWCCA 56; Saad [2007] NSWCCA 98, such as having matters put on a Form 1: Chiekh and Hoete [2004] NSWCCA 448. 10. An offer of a plea that is rejected by the Crown but is consistent with a jury verdict after trial can result in a discount even though there is no utilitarian value: Oinonen [1999] NSWCCA 310; Johnson [2003] NSWCCA 129 11. The discount can result in a different type of sentence but the resulting sentence should not again be reduced by reason of the discount: Lo [2003] NSWCCA 313. 12. The amount of the discount does not depend upon the administrative arrangements or any practice in a particular court or by a particular judge for the management of trials or otherwise.

43. In NSW it has been held that, where there is a substantial dispute as to the facts on sentence, and particularly where the dispute involves the calling of Crown witnesses, the utilitarian value of a plea of guilty may be substantially eroded: R v AB (2011) 59 MVR 356.

44. In NSW it has also been held that, in exceptional cases, the utilitarian principle will yield to considerations of greater weight, such as cases where the sheer enormity of the criminal conduct demonstrates a need to protect the public against gravely dangerous offenders: Milat v The Queen [2014] NSWCCA 29.

45. The ACT courts have adopted an approach to s 35 discounts that is very similar to the NSW Thomson approach to discounts for utilitarian value. Despite the terms of s 35(2)(d) and (4) of the Sentencing Act, it has been held that the utilitarian value of a guilty plea may be recognised in the face of a strong prosecution case. As this Court explained in Coggan v R [2013] ACTCA 49 at [20]:

Even an overwhelming prosecution case requires an enormous amount of work if it must be made out in a defended trial. As well, it is not unknown for an apparently overwhelming prosecution case to come unstuck in an unexpected way. To a similar effect, in R v Howard (Unreported, Supreme Court of the Australian Capital Territory, Penfold J, 22 November 2012), Penfold J remarked that:

It is undeniable that there is utilitarian value in a plea of guilty, at least in the ACT Supreme Court, even if the only saving is in the court time actually set aside for the trial. It is accordingly undesirable to create a situation where there is so little benefit in a late plea that a person who has not pleaded before the trial is about to commence might as well try his or her luck at trial rather than making a late plea.

45. The Court has not been called upon to consider the impact (if any) of s 22(1)(i) of the Human Rights Act 2004 (ACT) (the right not to be compelled to confess guilt) on the proper approach to an interpretation of s 35 of the Sentencing Act.

46. Applying the principles to be derived from the Sentencing Act and the cases to the circumstances of the present case, it is necessary to consider whether the sentencing judge’s discount of 10% for the pleas of guilty failed to reflect the timing and circumstances of the pleas, and the associated (but different) question of whether the quantum of the discount supports the appellant’s contention of “manifest excess”.

47. The bare fact of a plea of guilty entered in the Supreme Court will usually attract a s 35 discount of 10–15%. A common sense approach to “utilitarian value”, the case law and the terms of s 35(2)(b) and s 35(5) of the Sentencing Act all support the importance of the timing of a plea to the assessment of an appropriate discount. A last-minute plea commonly attracts a discount of 10%. A plea entered (or firmly indicated) after committal and before a trial date has been set will usually result in a discount of more than 10% and, commonly, leads to a discount of 15%. Occasionally, a plea in the Supreme Court attracts a higher discount; it is always a matter in the discretion of the sentencing judge.

48. In this case, the sentencing judge described the pleas as “last-minute”, but that was not the case. The pleas were indicated and entered before a trial date was set.

49. When determining the discount for utilitarian value, the sentencing judge had regard to s 35(4); he described the Crown case as “overwhelming”. Under s 35(4), his Honour was entitled to take the “overwhelming” strength of the Crown case into account, if indeed it was an “overwhelming” Crown case.

50. The appellant’s solicitor disputed that it was an “overwhelming” Crown case, noting that, in his record of interview, the appellant stated that he had “blacked out” and had no memory of the incident. The appellant had a history of mental health and other problems of uncertain aetiology: see [59] below.

51. It is only the characterisation of the case as “overwhelming” that could explain the discount of 10%.

52. I am not persuaded that his Honour erred in characterising the case as “overwhelming”.

53. If the case was “overwhelming” within the meaning of s 35(4), then the sentencing judge should have taken into account that the appellant’s early and significant admissions contributed to the strength of the case, and that at no stage did the appellant dispute critical facts and circumstances associated with the offences. This consideration was not relevant to the s 35 discount for plea of guilty, but it was relevant under s 33(1)(k) and s 35A of the Sentencing Act to a determination of the starting point for the sentences.

54. At [33] of the sentencing remarks the sentencing judge said that he took into account the appellant’s cooperation when determining an appropriate penalty. The severity of the starting point for the sentence for culpable driving causing death does not reflect that mitigating considerations of such a nature reduced the sentence in any significant way. On the other hand, while admissions should be taken into account, there is no requirement that they must result in a reduction of sentence.

55. At [36] of his reasons, the sentencing judge referred to the sparing of vulnerable victims and witnesses as a factor that was relevant to the s 35 discount. Although Thomson and other cases treat the sparing of vulnerable victims as a consideration that is separate from the discount for utilitarian value and, logically, one that would increase the discount otherwise arising by reason of utilitarian value, in this case the discount was not increased beyond the basic 10%. Nor did this consideration mitigate the starting point for the sentence for culpable driving causing death.

56. The s 35 discount of 10% was a very low discount to allow for the utilitarian value of pleas of guilty entered before a trial date was allocated. The sparing of vulnerable victims and witnesses was a factor that could have bolstered the discount. The low discount is only explicable on the basis of his Honour’s finding that the Crown case was “overwhelming”.

57. Sentencing is a process of “intuitive synthesis” and an appeal court should reject a pedantic approach to the review of sentences. When each matter bearing on the discount is taken in isolation, no specific error is demonstrated. But, taken in combination, those matters do inform the submission of manifest excess.

Consideration of appellant’s mental health problems

58. The appellant contended that the sentencing judge failed to approach the appellant’s significant and long-standing mental health problems in an appropriate manner.

59. The sentencing judge made the following remarks at [47]:

the offender does not enjoy good mental health... I accept that he suffers from (Asperger’s syndrome or schizotypal personality disorder, substance abuse disorder, XYY chromosome disorder, antisocial personality disorder, temporal lobe epilepsy, depression and anxiety) and that they have affected his relationships with his parents, siblings, friends and a girlfriend, and indeed they have affected the way that he has lived his life. But I do not accept that they caused him to steal a motor vehicle and to drive it dangerously at excessive speed in attempting to evade police and to avoid apprehension by police.

60. At [62] of his reasons, the sentencing judge noted that there was no evidence to suggest that the appellant’s mental health disorders would make prison life particularly hard for him.

61. Under the heading “Deterrence” at [66], his Honour observed that the appellant suffered from mental health problems but went on to state that “none of them caused him to do what he did” and that personal and general deterrence remained important sentencing objectives.

62. Section 33(1)(m) of the Sentencing Act says that the “mental condition of the offender” is to be taken into account (if relevant) in sentencing.

63. An offender’s mental condition may reflect on the offender’s moral culpability, and may also mean that sentencing purposes such as general deterrence, retribution and denunciation have less weight: Muldrock v The Queen (2011) 244 CLR 120 (Muldrock). In Muldrock at [54], the High Court said:

(In sentencing offenders suffering from mental illness, and those with an intellectual handicap) [a] 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. (Citations omitted)

64. The relevant principles were conveniently summarised in Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1 at [177], where McClellan CJ at CL (with whom Simpson J and Barr AJ agreed) said: Where an offender is suffering from a mental illness, intellectual handicap or other mental problems the courts have developed principles to be applied when sentencing: see, for example, R v Engert (1995) 84 A Crim R 67; R v Tsiarias [1996] 1 VR 398 at 400; R v Fahda [1999] NSWCCA 267 at [40]–[48]; Lauritsen v The Queen (2000) 22 WAR 442 at [43]–[51]; R v Harb [2001] NSWCCA 249 at [35]–[45]; R v Israil [2002] NSWCCA 255; R v Hemsley [2004] NSWCCA 228 at [33]–[36]; R v Verdins (2007) 16 VR 269 at [32]; Courtney v The Queen [2007] NSWCCA 195; (2007) 172 A Crim R 371 at [14]–[18]; and R v Henry [2007] NSWCCA 90 at [28]. They can be summarised in the following manner: • Where the state of a person's mental health contributes to the commission of the offence in a material way; the offender's moral culpability may be reduced. Consequently the need to denounce the crime may be reduced with a reduction in the sentence: R v Henry (1999) 46 NSWLR 346 at [254]; Miller v The Queen [1999] WASCA 66 at [23]; R v Jiminez [1999] NSWCCA 7 at [23], [25]; R v Tsiarias (at 400); Lauritsen (at [51]); R v Israil (at [23]); R v Pearson [2004] NSWCCA 129 at [43]; R v Henry (2007) (at [28]). • It may also have the consequence that an offender is an inappropriate vehicle for general deterrence resulting in a reduction in the sentence which would otherwise have been imposed: R v Engert (at 71); R v Wright (1997) 93 A Crim R 48 at 50–51; R v Israil (at [22]); R v Pearson (at [42]); R v Henry (2007) (at [28]). • It may mean that a custodial sentence may weigh more heavily on the person. Because the sentence will be more onerous for that person the length of the prison term or the conditions under which it is served may be reduced: R v Tsiarias (at 400); R v Jiminez (at [25]); R v Israil (at [26]); R v Henry (2007) (at [28]). • It may reduce or eliminate the significance of specific deterrence: Courtney (at [14]); R v Tsiarias (at 400); R v Israil (at [25]); R v JW (at [192]). • Conversely, it may be that because of a person's mental illness, they present more of a danger to the community. In those circumstances, considerations of specific deterrence may result in an increased sentence: R v Israil (at [24]); R v Henry (2007) (at [28]). • Where a person has been diagnosed with an Antisocial Personality Disorder there may be a particular need to give consideration to the protection of the public: R v Lawrence [2005] NSWCCA 91 per Spigelman CJ (at [23]–[24]).

65. The Victorian Court of Appeal in R v Verdins (2007) 16 VR 269 (Verdins) at [32] said:

Impaired mental functioning, whether temporary or permanent (“the condition”), is relevant to sentencing in at least the following six ways: 1. The condition may reduce the moral culpability of the offending conduct, as distinct from the offender’s legal responsibility. Where that is so, the condition affects the punishment that is just in all the circumstances; and denunciation is less likely to be a relevant sentencing objective. 2. The condition may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served. 3. Whether general deterrence should be moderated or eliminated as a sentencing consideration depends upon the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentence or both. 4. Whether specific deterrence should be moderated or eliminated as a sentencing consideration likewise depends upon the nature and severity of the symptoms of the condition as exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of the sentence or both. 5. The existence of the condition at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health. 6. Where there is a serious risk of imprisonment having a significant adverse effect on the offender’s mental health, this will be a factor tending to mitigate punishment. (Citations omitted)

66. Verdins has been followed in many ACT decisions. For example, Verdins was considered recently in R v Flowers [2014] ACTCA 13 at [5] per Refshauge J.

67. Where a mental health condition does not reduce moral culpability, does not render an offender an inappropriate vehicle for a message of general deterrence or does not otherwise have particular relevance to a specific sentencing purpose, and does not mean that the offender will suffer more in custody, the mental health condition may nevertheless be considered as part of an offender’s general subjective circumstances, and may inform the sentencing outcome in the same way as other subjective circumstances do so.

68. In the present case, the sentencing judge referred to the appellant’s poor mental health. His Honour considered whether the appellant’s mental health reflected upon his moral culpability, and concluded that it did not. His Honour considered whether the appellant’s mental health informed the sentencing objectives of personal and general deterrence and concluded that it did not. His Honour considered whether the appellant’s mental health problems would make prison life particularly difficult for him and found that there was no evidence to support such a proposition. His Honour did not expressly state that he took the appellant’s mental health problems into account as part of the general subjective circumstances, but (apart from the evidence provided by the heavy sentences themselves) there is no reason to infer that he failed to do so.

69. The appellant has not demonstrated any clear error in the manner in which the sentencing judge approached the appellant’s mental health conditions. However, the fact that the appellant suffered from significant mental health problems is of general relevance to a consideration of “manifest excess” because it is part of the general subjective circumstances.

Current sentencing practice for culpable driving causing death

70. The appellant’s submission that the sentence imposed for the offence of culpable driving causing death is contrary to current sentencing practice requires the Court to consider the impact on that sentence of the additional offences that were taken into account.

71. When sentencing for the principal offence of culpable driving causing death, the sentencing judge took into account three offences of failing to stop after an accident and one offence of failing to give particulars after a collision. At [65], his Honour referred to the additional offences and said:

Of course, my taking these additional offences into account in determining the sentence for the offence of culpable driving causing death will mean that the sentence for that offence will be more severe than it would have been had it been the only offence.

72. Part 4.4 of the Crimes (Sentencing) Act 2005 (ACT) contains the relevant statutory provisions regarding the procedure for taking additional offences into account on sentence. Section 57 provides:

(2) The court may take an additional offence into account in making a sentence-related order for the principal offence if— … (3) If the court takes an additional offence into account in relation to the principal offence, any penalty imposed for the principal offence must not exceed the maximum penalty the court could have imposed for the principal offence if the additional offence had not been taken into account.

73. There is no legislative guidance as to the manner in which additional offences should be “taken into account”.

74. In Attorney-General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002) (2002) 56 NSWLR 146, the NSW Court of Criminal delivered a guideline judgment concerning the equivalent NSW provision. Spigelman CJ (with whom the other four members of the bench agreed) endorsed a “bottom-up” approach to sentencing for a principal offence when taking additional offences (which are often referred to as “Form 1 offences” in NSW) into account. His Honour said at [42]-[44]:

[A]lthough a court is sentencing for a particular offence, it takes into account the matters for which guilt has been admitted, with a view to increasing the penalty that would otherwise be appropriate for the particular offence. The court does so by giving greater weight to two elements which are always material in the sentencing process. The first is the need for personal deterrence, which the commission of the other offences will frequently indicate, ought to be given greater weight by reason of the course of conduct in which the accused has engaged. The second is the community's entitlement to extract retribution for serious offences when there are other offences for which no punishment has in fact been imposed. These elements are entitled to greater weight than they may otherwise be given when sentencing for the primary offence. There are matters which limit the extent to which this is so. The express provision in s 33(3) referring to the maximum penalty for the primary offence is one. The principle of totality is another. I did not intend these observations to be exhaustive of the elements upon which the fact of other offences may impinge. However, no additional elements for which that could be so have been identified in submissions to this Court. The important point is that the focus throughout must be on sentencing for the primary offence. The manner and degree to which the Form 1 offences can impinge upon elements relevant to sentencing for the principal offence will depend on a range of other factors pertinent to those elements and the weight to be given to them in the overall sentencing task. For that reason it will rarely be appropriate for a sentencing judge to attempt to quantify the effect on the sentence of taking into account Form 1 offences. (See R v Kay (at [69]).)

75. After referring to that guideline judgment, in Dionys v The Queen (2011) 217 A Crim R 280, Hoeben J (with whom McClellan CJ at CL and Adams J agreed) said at [65]-[66]:

[W]hile the Court is sentencing only for the principal offence and not for the Form 1 offences, the entire point of the process is to impose a longer sentence and that the additional component may not be small. While not excluding other considerations, the Chief Justice referred specifically to greater weight being given to personal deterrence and to "the community's entitlement to extract retribution for serious offences when there are other offences for which no punishment has in fact been imposed." The common factor in those elements which the Chief Justice emphasised, is that the principal offence was not an isolated instance but was part of a course of offending conduct. On the facts of this case, that course of offending conduct was substantial and serious thereby justifying a significantly longer sentence for the primary offence.

76. The same approach has been adopted in this jurisdiction. In R v Campbell [2010] ACTCA 20 (Campbell) at [50] the Court (Gray P, Refshauge and North JJ) stated that:

When s 57(3) of the Sentencing Act speaks of taking the offences into account, it means taking them into account in the same way as other matters are taken into account for the purpose of sentence. No doubt it will generally have the result of increasing the sentence about to be imposed. It may, in some cases, have the result of altering the nature of that sentence. But apart from those considerations, the additional offences will no doubt be taken into account as part of the sentencing process in assessing the character of the offender and the prospects of rehabilitation. What is clear, of course, is that the offender is not to be sentenced for the additional offences. There may be occasions when it is appropriate for a judge to refer to the effect which he gives to additional offences taken into account in that way, but it is not obligatory for him [sic] to do so.

77. See also Auld v The Queen [2013] ACTCA 21 at [2] per Burns and Gilmour JJ and Nield AJ; James Nelson Fusimalohi v The Queen [2012] ACTCA 49 at [11] per Refshauge J; R v Taylor Schmidt [2013] ACTSC 295 at [14] per Refshauge J; R v Martin [2013] ACTSC 280 at [53] per Refshauge J; and R v Grenon [2013] ACTSC 292 at [37] per Refshauge J.

78. In this case, having taken the additional offences into account, the sentencing judge was entitled to impose a more severe sentence than he would otherwise have imposed for the principal offence, and his Honour said that he would do so. However, the additional offences did not justify the imposition of a substantially greater sentence.

79. The additional offences were relatively minor matters that were part of the course of conduct surrounding the subject offences; indeed, failure to stop would very often be taken into account as an aggravating feature pertaining to a principal offence of culpable driving, rather than as an additional offence. They were of relatively low significance in comparison to the subject offences. It is not a case where, for example, an offender was sentenced for one offence of burglary and three additional offences of a similar nature were taken into account. In that example, a substantially greater sentence would be justified for the principal offence because the additional offences were independent and serious; the sentencing purposes of personal deterrence would demand a substantially greater sentence, and the additional offences would demonstrate that the principal offence was not isolated (a consideration that might otherwise entitle an offender to some leniency).

80. Section 33(1) provides:

(1) In deciding how an offender should be sentenced (if at all) for an offence, a court must consider whichever of the following matters are relevant and known to the court: ... (za) current sentencing practice.

81. Section 33(1)(za) (previously s 33(1)(z)) of the Crimes (Sentencing) Act 2005 (ACT) was introduced in December 2005 when the Crimes (Sentencing) Act 2005 (ACT) was notified (2 December 2005).

82. The s 33(1)(za) requirement that a sentencing judge consider “current sentencing practice” does not refer to the general entitlement (which is not a requirement) that a sentencing court may have regard to sentences imposed in comparable cases for the purpose of considering current sentencing patterns.

83. There is an equivalent provision in Victoria. Section 5(2)(b) of the Sentencing Act 1991 (Vic) provides that, in sentencing an offender, a court “must have regard to … current sentencing practices”. In Stalio v The Queen (2012) 223 A Crim R 261, Neave and Osborn JJA and King AJA decided that s 5(2)(b) means that a sentencing judge must have regard to sentencing practices at the time when a sentence is imposed, rather than practices at the time when the offence was committed. However, sentencing practices at the time when the offence was committed could also be relevant; such practices may illuminate a consideration of equal justice, for example where sentencing practices have since moved in a manner that is adverse to an offender. See also R v MJR (2002) 54 NSWLR 368; AJB v The Queen (2007) 169 A Crim R 32; MJL v The Queen [2007] NSWCCA 261; and R v Wruck [2014] QCA 39.

84. In any event, apart from any statutory provision, the sentences imposed in other cases may be taken into account in the manner described in Hili v The Queen (2010) 242 CLR 520 (Hili) at [48] and [53]-[55]:

Consistency is not demonstrated by, and does not require, numerical equivalence. Presentation of the sentences that have been passed on federal offenders in numerical tables, bar charts or graphs is not useful to a sentencing judge. It is not useful because referring only to the lengths of sentences passed says nothing about why sentences were fixed as they were. Presentation in any of these forms suggests, wrongly, that the task of a sentencing judge is to interpolate the result of the instant case on a graph that depicts the available outcomes. But not only is the number of federal offenders sentenced each year very small, the offences for which they are sentenced, the circumstances attending their offending, and their personal circumstances are so varied that it is not possible to make any useful statistical analysis or graphical depiction of the results. ... in seeking consistency, sentencing judges must have regard to what has been done in other cases. ... Care must be taken, however, in using what has been done in other cases. In Director of Public Prosecutions (Cth) v De La Rosa, Simpson J accurately identified the proper use of information about sentences that have been passed in other cases. As her Honour pointed out, a history of sentencing can establish a range of sentences that have in fact been imposed. That 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. As her Honour said: “Sentencing patterns are, of course, of considerable significance in that they result from the application of the accumulated experience and wisdom of first instance judges and of appellate courts.” But the range of sentences that have been imposed in the past does not fix “the boundaries within which future judges must, or even ought, to sentence”. Past sentences “are no more than historical statements of what has happened in the past. They can, and should, provide guidance to sentencing judges, and to appellate courts, and stand as a yardstick against which to examine a proposed sentence” (emphasis added). When considering past sentences, “it is only by examination of the whole of the circumstances that have given rise to the sentence that ‘unifying principles’ may be discerned”. As the plurality said in Wong: "[R]ecording what sentences have been imposed in other cases is useful if, but only if, it is accompanied by an articulation of what are to be seen as the unifying principles which those disparate sentences may reveal. The production of bare statistics about sentences that have been passed tells the judge was about to pass sentence on an offender very little that is useful if the sentencing judge is not also told why those sentences were fixed as they were.” (Citations omitted)

85. See also Barbaro v The Queen (2014) 88 ALJR 372 at [41]; Munda v Western Australia (2013) 249 CLR 600; and Islam v The Queen [2013] ACTCA 10 (Refshauge, Burns and Marshall JJ).

86. The passages in Hili concerning the uselessness of bare statistics may need to be revisited because the statistics that are now available often reflect a statistically significant number of cases and have been enhanced, enabling a sentencing judge to “dig down” into them and ascertain the objective and subjective circumstances of particular cases.

87. As discussed in Hili, a sentencing court may look at past sentences to discern relevant unifying principles and for the purpose of using them as a “yardstick” against which to measure the sentence that is under consideration by the sentencing judge. For the same reasons, past decisions may assist an appeal court that is deciding whether a sentence is unreasonable or plainly unjust.

88. Particular care needs to be taken when considering decisions in other jurisdictions, where sentencing law and sentencing patterns may differ, but some assistance may be gained from the approach taken in jurisdictions with similar offences, similar maximum penalties and similar sentencing legislation.

89. In NSW, the comparable offence of aggravated dangerous driving causing death carries a maximum available penalty of 14 years’ imprisonment. The NSW Court of Criminal Appeal has given guideline judgments in the matters of R v Jurisic (1998) 45 NSWLR 209 (dangerous driving simpliciter) and R v Whyte (2002) 55 NSWLR 252 (aggravated dangerous driving). These guideline judgments have identified factors of aggravation that may also be relevant to courts in this jurisdiction.

90. A number of those aggravating factors were present in this case: speed, a significant number of people put at risk, intoxication, erratic driving, driving to escape perceived police pursuit (although there was no actual pursuit and the appellant was mistaken in this regard) and failing to stop (although this was the subject of an additional charge, so was to be taken into account via a different mechanism).

91. The Crown referred to decisions in NSW and Victoria in which an appeal court had reviewed sentences imposed for culpable driving offences of a high level of objective seriousness. In none of those cases did the offender receive a sentence of the severity imposed in the present case. That does not necessarily mean that the subject sentence was manifestly excessive. However, it is a matter of note, particularly as sentencing outcomes in the ACT are often more lenient than those elsewhere in Australia (even where maximum penalties are the same), perhaps reflecting a greater emphasis on rehabilitation and an acknowledgement that there is little hard evidence that very long sentences support general or personal deterrence.

92. The sentences imposed in NSW for offences of aggravated dangerous driving causing death (maximum penalty 14 years’ imprisonment) were extensively reviewed by Buddin J in Bombardieri v The Queen (2010) 203 A Crim R 89. Recently, in R v Wright (2013) 229 A Crim R 245, the NSW Court of Criminal Appeal considered a case of aggravated dangerous driving causing death and grievous bodily harm where, for the offence of occasioning death, the sentencing judge had imposed a penalty of nine years’ imprisonment (reduced by 25% from 12 years imprisonment). The victims were two child passengers whom the offender had driven for a distance of 38 km at 45 kph above the speed limit with a blood alcohol reading of 0.157g per 100ml of blood. He drove on a main highway and, during the trip, many other road users were placed at risk. He had four prior convictions for driving with the high range prescribed concentration of alcohol (although none were recent) and he had received a sentence of periodic detention for one of those matters. He had experienced a very dysfunctional childhood. He suffered from a mental disability, but that was found to have had no bearing on moral culpability, considerations of general deterrence or hardship associated with imprisonment. The Appeal Court declined to intervene, describing the sentence as “stern” but within the legitimate exercise of sentencing discretion because the case was “close to the worst type of offence of its kind” (per Price J (with whom Macfarlan JA and Hulme AJ agreed) at [86]). One consideration that was important to this conclusion was that “the applicant was entrusted with the safety of two young persons in his car” at [77]. The case can be contrasted with Woodward v R [2014] NSWCCA 205, in which the NSW Court of Criminal Appeal found that a sentence with an assumed starting point of eight years’ imprisonment for an offence of dangerous driving causing death simpliciter (maximum penalty 10 years’ imprisonment) was manifestly excessive and reduced the sentence to one with a starting point of five years’ imprisonment. The Court found that the moral culpability of the offender was “very high” (the offender was on a provisional licence, the victim was a passenger, there was a high alcohol reading and excessive speed, other road users were placed at risk by erratic and aggressive driving) and there was very little evidence to establish a subjective case.

93. The dangerous/culpable driving cases in which very severe penalties have been imposed generally involve the death of someone who was a passenger in the offender’s vehicle and to whom the offender owed a specific duty of care. Some of the cases involve a child passenger for whom the offender also had carer responsibility. In such cases, the offender may have subjected the actual victims to a high level of risk and terror over a significant period of time.

94. For obvious reasons, where dangerous driving results in the death of a passenger, the offender is often charged with manslaughter (which carries a significantly higher maximum available penalty). As Price J pointed out in Wright at [82]:

Sometimes the distinction in the culpability of an offender charged with the statutory offence as distinct from manslaughter will be a fine one, but that does not mean that the offender can be punished for the crime of manslaughter for which he has not been charged.

95. The exercise of sentencing the appellant involved an application of the principle in R v De Simoni (1981) 147 CLR 383. The sentencing judge was entitled to consider all the conduct of the appellant, but was not permitted to take into account circumstances of aggravation that would have warranted conviction for the more serious offence of manslaughter, which carries a maximum available penalty of 20 years’ imprisonment. The sentencing judge was required to consider the content of the culpable driving. The terms of s 29(6) of the Crimes Act suggest that culpability refers in essence to the degree, nature and duration of the relevant negligence, and to the impact of intoxication. However, the sentencing judge was precluded from treating the appellant’s conduct as so grossly negligent as to warrant a conviction for manslaughter. The distinction between culpable negligence and negligence justifying a manslaughter conviction is a distinction that must be drawn, although in practice it may be very difficult to draw. In the present case, the need to draw the distinction was highlighted by the fact that, when the Crown discontinued the manslaughter proceedings, the appellant entered a plea of guilty to the offence of culpable driving causing death.

96. In this case, the sentence that was imposed may have been appropriate had the relevant offence been manslaughter, but it was extremely high for an offence of culpable driving causing death. Although the circumstances disclose a high level of moral culpability, this was not a passenger case where the actual victims were people to whom the offender owed a specific duty of care and whom he or she subjected to a high level of risk and terror over a prolonged period of time. Regrettably, in this case the degree, nature and duration of the appellant’s negligence were not atypical in the context of cases of dangerous driving causing death or grievous bodily harm. Objectively, this was a very serious case, but the objective circumstances did not put it into the “close to worst possible case” category.

97. The appellant had a lengthy history of criminal and traffic matters, encompassing matters where the circumstances of the driving were similar to the circumstances of the subject offences (including dangerous driving to avoid police apprehension). He had served short sentences for offences involving motor vehicles, including a sentence of three months’ imprisonment for dangerous driving. This prior driving history could not serve to increase the sentences that might otherwise be imposed for the subject offences. Rather, the history meant that no leniency could be afforded on the basis that the incident of 3 May 2012 was an isolated incident.

98. The appellant’s general subjective circumstances were strong. They included significant mental health problems.

99. There was a reasonable degree of assistance to the criminal justice system and a sparing of vulnerable victims.

100. In relation to the offence of culpable driving causing grievous bodily harm, the sentencing judge commenced from an appropriate starting point of six years’ imprisonment (60% of the maximum available sentence). The nature of the grievous bodily harm was serious, but it was not the most serious possible grievous bodily harm; this factor would have affected the starting point for the sentence.

101. However, it is difficult to draw a great distinction between the culpability attaching to that offence and the culpability attaching to the subject offence, where the starting point was 12 years’ imprisonment (85% of the maximum available sentence). The fact that the grievous bodily harm was moderate but not severe and the existence of additional offences necessarily meant that there would be a difference in the relative starting points. However, those matters do not explain the extent of the relative difference between the sentences that were imposed.

Objective seriousness of taking motor vehicle offence

102. The appellant submitted that, when sentencing for the offence of dishonestly taking a motor vehicle without consent, the sentencing judge wrongly took into account the manner in which the vehicle was driven after it was taken, and thereby wrongly concluded that the offence was objectively serious. The appellant contended that the starting point for the sentence of three years’ imprisonment was too high, given that the maximum available penalty was five years’ imprisonment.

103. In relation to the objective seriousness of the subject offences generally, his Honour said at [19]-[20]:

I consider that the offender’s stealing of the motor vehicle is not particularly serious, because it was stolen from a public car park without anyone being assaulted or threatened with the use of violence. This offence does not fall much above the bottom of the range of objective seriousness for offences of its kind. However, I consider that the offender’s manner of driving of the stolen motor vehicle to be particularly serious. He was driving the vehicle when his ability to control it was affected by the alcohol that he had consumed. He was driving the vehicle at a greatly excessive speed. He was attempting to avoid being apprehended by police. He failed to obey traffic signs and lights. He had total disregard for the other road users, both pedestrians and drivers and passengers in other vehicles. He failed to stop the vehicle after it struck Ms Bumpus and Ms Cox. He caused the vehicle to collide into the Ford Territory vehicle. He attempted to leave the scene. I see that these offences fall close to the top of the range of objective seriousness for offences of their kinds.

104. Had the sentencing judge taken into account the subsequent manner of driving when assessing the objective seriousness of the offence of dishonestly taking a motor vehicle, then his Honour may well have fallen into error. First, an offence against s 318 of the Criminal Code may be committed in one of two ways; either by dishonestly taking a motor vehicle without consent, or by dishonestly driving or riding in a motor vehicle without consent. The appellant was being sentenced for taking the vehicle, not driving it. Second, the manner of driving was taken into account in relation to the culpable driving offences, and it would have been an error to punish the appellant twice for the same manner of driving.

105. But there is no basis upon which the Court would infer that, when sentencing for the offence of dishonestly taking a motor vehicle without consent, the sentencing judge erred by considering the subsequent dangerous manner of driving and erred by proceeding on the basis that it was an objectively serious offence of its type.

106. Under the heading of “the objective seriousness of the offences”, the sentencing judge found that the dishonest taking of the motor vehicle was “not particularly serious” and “does not fall much above the bottom end of the range of objective seriousness”: at [19]. At [20], his Honour went on to particularise the dangerous aspects of the subsequent manner of driving. The structure of the sentencing remarks makes it plain that the observations at [20] refer to the objective seriousness of the culpable driving offences, not the objective seriousness of the offence against s 318 of the Criminal Code.

107. When determining an appropriate sentence, a sentencing judge must consider both objective and subjective circumstances. At [48]–[52], the sentencing judge referred to the appellant’s substantial criminal history, which included six incidents of taking a vehicle without the consent of the owner. In the case of incidents that occurred on 26 July 2006, 3 March 2007 and 13 March 2008, the appellant took a vehicle without the consent of the owner and drove it at high speed in a residential area while attempting to evade police. At [53] his Honour considered that the fact that “the offender has learned nothing whatsoever from his earlier offending” reflected on sentencing purposes such as rehabilitation, reoffending and deterrence. Such an approach was reasonable.

108. The starting point of three years’ imprisonment that was selected by his Honour sits comfortably with the starting point of two years’ imprisonment that was selected by Penfold J when her Honour sentenced the appellant for a similar offence committed three days prior to the subject offences.

109. The starting point for the sentence of three years imprisonment was appropriate.

Conclusion

110. The sentence imposed for the offence of culpable driving causing death is manifestly excessive. In brief:

111. The offence was of high objective seriousness, but it was not in the objectively “close to worst case” category. The appellant was not charged with manslaughter and the de Simoni principle was applicable. 2. There were strong subjective circumstances. 3. Considering the objective and the subjective circumstances and the s 33 factors, the case was not in the “close to worst case” category that would justify a penalty close to the maximum penalty. 4. The sentence does not sit comfortably with that imposed for the offence of culpable driving causing grievous bodily harm. 5. The s 35 discount was very low, considering the utilitarian value of the plea. 6. The appellant’s criminal and driving records were poor; this disentitled him to leniency but could not serve to increase the otherwise appropriate sentence. 7. The additional offences were not such as to greatly increase the otherwise appropriate sentence.

Discretion

111. There is no basis upon which the Court should exercise its residual discretion and decline to intervene.

Resentencing exercise

112. The sentence imposed by the sentencing judge should be set aside. An appropriate starting point for the sentence (taking into account the additional offences) is 10 years’ imprisonment. The s 35 discount for the plea of guilty should prioritise the utilitarian value of the plea and the fact that it was not last-minute. The discount should be 15%, resulting in a sentence of 8 years and 6 months’ imprisonment.

113. The sentences should be structured as follows:

attempt to obtain money by deception 12 months 14/9/12 – 13/9/13 take vehicle without consent 2 years 8 months 14/1/13 – 13/9/15 culpable driving causing GBH 5 years 4 months 14/1/14 – 13/5/19 culpable driving causing death 8 years 6 months 14/1/15 – 13/7/23

114. Taking into account the effective period of imprisonment of 11 years and 4 months (from 14 March 2012 to 13 July 2023) and the fact that the appellant has not previously served a significant period of imprisonment (and related considerations of personal deterrence and rehabilitation), a new nonparole period of 7 years should be set (62% of the total period of imprisonment), to start on 14 March 2012 and end on 13 March 2018.

115. Pursuant to s 61 of the Sentencing Act, the Court should order that, if neither party approaches the Court within seven days seeking an opportunity to be heard, the proceedings before Penfold J are reopened and the appellant is sentenced to 19 months’ imprisonment from 14 July 2023 to 13 February 2025, and the nonparole period is varied to start on 14 March 2012 and end on 13 May 2019.

I certify that the preceding one hundred and fifteen [115] numbered paragraphs are a true copy of the Reasons for Judgment herein of her Honour Chief Justice Murrell.

Associate:

Date: 16 October 2014 BURNS J:

116. The appellant appeals from sentences imposed by the primary judge on 18 June 2013, after he pleaded guilty to one count of culpable driving causing death, one count of culpable driving causing grievous bodily harm and one count of dishonestly taking a motor vehicle. In sentencing the appellant for the offence of culpable driving causing death, the primary judge took into account three offences of failing to stop following an accident and one offence of failing to give particulars following a collision, which were contained in a List of Additional Offences.

117. The maximum penalty for the offence of culpable driving causing death is 14 years’ imprisonment, that for culpable driving causing grievous bodily harm is 10 years’ imprisonment, whilst the maximum penalty for dishonestly taking a motor vehicle is 5 years’ imprisonment.

118. The primary judge imposed a sentence of 10 years 9 months’ imprisonment for the offence of culpable driving causing death, 5 years 4 months’ imprisonment for the offence of culpable driving causing grievous bodily harm and 2 years 8 months’ imprisonment for the offence of dishonestly taking a motor vehicle. His Honour partly accumulated those sentences such that an aggregate sentence of 12 years 9 months’ imprisonment was imposed for these offences. In arriving at the sentences the primary judge allowed a discount of 10% to reflect the appellant’s pleas of guilty.

119. At the time he committed these offences on 3 May 2012, the appellant was on conditional liberty in that he was on bail for allegations of assault and was subject to a suspended sentence of imprisonment imposed in this Court on 16 March 2012. On that date a judge of this Court sentenced the appellant to a suspended term of 12 months’ imprisonment dating from 28 January 2012 to 27 January 2013 for an offence of attempting to obtain money by deception. The primary judge dealt with the appellant for breaching the suspended sentence order imposed on 16 March 2012 and imposed the suspended sentence of 12 months’ imprisonment for the offence of attempting to obtain money by deception, commencing 14 September 2012 and expiring 13 September 2013. The sentence of two years and eight months’ imprisonment imposed on the charge of dishonestly taking a motor vehicle commenced 14 January 2013 and expired 13 September 2015. The sentence of five years four months’ imprisonment imposed on the charge of culpable driving causing grievous bodily harm commenced 14 January 2014 and expired 13 May 2019. Finally, the sentence of 10 years 9 months’ imprisonment for the offence of culpable driving causing death commenced on 14 January 2015 and expired 13 October 2025.

120. The final aggregate sentence imposed by the primary judge was therefore 13 years 1 month’s imprisonment, including the sentence imposed for attempting to obtain money by deception. His Honour imposed a nonparole period of 9 years 10 months commencing 14 September 2012 and expiring 13 July 2022.

121. It should be noted that of the aggregate sentence of 13 years 1 month imprisonment, only 4 months is attributable to the offence of attempting to obtain money by deception, only 12 months is attributable to the offence of dishonestly taking a motor vehicle, and only 12 months is attributable to the offence of culpable driving causing grievous bodily harm, demonstrating the extent to which the primary judge allowed the sentences to be served concurrently.

122. The Notice of Appeal filed by the appellant pleads one ground only, that the sentences imposed by the primary judge were manifestly excessive. Before I turn to consider this ground of appeal, it is appropriate to make some comments about the way in which the appeal proceeded. Notwithstanding the fact that the Notice of Appeal raised only the one ground of appeal, the appellant’s submissions identified five “specific matters” which were alleged to be particulars of the allegation that the sentences were manifestly excessive. These five matters were:

i) the 10% discount for the appellant’s pleas of guilty was inadequate to reflect the timing of his pleas, or the remorse or contrition they reflected;

ii) the sentence imposed for the offence of dishonestly taking a motor vehicle, described by the primary judge as “not particularly serious... not [falling] much above the bottom of the range of objective seriousness for offences of its kind” was manifestly excessive;

iii) the primary judge, in assessing general deterrence “took no account of the fact that the appellant had accepted mental health issues, holding that they had no causal link to the offending”;

iv) the primary judge took into account matters that were not properly able to be taken into account, namely the driving offences the appellant committed on 13 March 2008;

v) the “standards of sentencing customarily observed to the offence” as reflected in authorities provided to the primary judge by the Crown indicate the sentence was manifestly excessive.

123. Of these five matters, it appears that at least two, the third and fourth, involve allegations of specific errors of law by the primary judge. The third alleges a failure on the part of the primary judge to take a relevant consideration into account, and the fourth alleges his Honour took into account an irrelevant consideration. Taking into account an irrelevant consideration or failing to take into account a relevant consideration in the exercise of a discretion are errors of law identified by the High Court in House v The King (1936) 55 CLR 499. Where such allegations are to be raised in an appeal to this Court, they should be specifically pleaded as grounds of appeal in the Notice of Appeal. Establishing that the primary judge made specific errors of fact or law in the sentencing process does not establish that the sentence imposed was manifestly excessive. Manifest excess is a conclusion drawn in respect of a particular sentence, or combination of sentences, from which error on the part of the sentencing judge is inferred, although none appears on the record. The inclusion of the third and fourth matters as “particulars” of the ground of appeal that the sentence imposed was manifestly excessive makes it difficult for this Court to properly approach those matters, and also effectively seeks to have those complaints heard on the appeal without the necessity of seeking leave to amend the Notice of Appeal. This approach is to be deprecated.

124. I have had the benefit of reading the reasons of the Chief Justice in draft, and gratefully adopt her summary of the facts. I respectfully agree with her conclusions and reasons regarding the issues raised by the appellant in i) to iv) of the “particulars” raised by the appellant. Regrettably, I am unable to agree with the conclusion of the Chief Justice that the sentence imposed for the offence of culpable driving causing death was manifestly excessive, for the reasons which I will now give.

125. A sentence will not be interfered with, or be found to be manifestly excessive, simply because it is greater than other sentences imposed in the past for that offence, or because the appellate court would have imposed a different sentence: R v Whyte (2002) 134 A Crim R 53 at [177]. In the present case, bearing in mind the degree of concurrency of sentences allowed by the primary judge, the appellant’s complaint must be that the sentence imposed for the offence of culpable driving causing death was manifestly excessive. It is important to consider what factors or circumstances are relevant in assessing the seriousness of a particular offence of that kind, and to what extent they may be indentified in the appellant’s offending.

126. The New South Wales Court of Criminal Appeal laid down guidelines to sentencing for the comparable New South Wales offences of aggravated dangerous driving causing death and aggravated driving causing grievous bodily harm in R v Whyte. There, Spigelman CJ (with whom Mason P, Barr, Bell and McClennan JJ agreed) identified the characteristics of a “typical case” of this type as:

a) young offender;

b) of good character with no, or limited, prior convictions;

c) death or permanent injury to a single person;

d) the victim is a stranger;

e) no or limited injury to the driver;

f) genuine remorse; and

g) plea of guilty of limited utilitarian value.

127. Spigelman CJ also identified the following aggravating factors which may attend such offences;

i) extent and nature of the injuries inflicted;

ii) number of people put at risk;

iii) degree of speed;

iv) degree of intoxication or of substance abuse;

v) erratic or aggressive driving;

vi) competitive driving or showing off;

vii) length of the journey during which others were exposed to risk;

viii) ignoring of warnings;

ix) escaping police pursuit;

x) degree of sleep deprivation; and

xi) failing to stop.

128. In this list of aggravating factors, items iii) to xi) “are frequently recurring elements which directly impinge on the moral culpability of the offender at the time of the offence. Individually, but more often in some combination, they may indicate that the moral culpability is high”: per Spigelman CJ at [228].

129. It is instructive to compare the present offence and appellant against these lists of characteristics and aggravating factors: (a) young offender: the appellant is not a particularly young offender. He was 24 years old at the time of these offences.

(b) of good character with no, or limited, prior convictions: the appellant has a horrendous prior criminal history with approximately 35 prior convictions for criminal and serious traffic offending. Amongst his prior convictions are convictions for driving a motor vehicle without consent, riding in a motor vehicle without consent, taking a motor vehicle without consent, dangerous driving, reckless driving, failing to stop a vehicle when signalled by police, driving whilst disqualified and furious driving. Evidence was placed before the primary judge of the appellant’s involvement in prior incidents where he drove dangerously in order to avoid a police apprehension. On 26 July 2006 at about 3:20 pm the appellant drove a motor vehicle in a reckless manner through suburban streets in a stolen motor vehicle so as to avoid police apprehension. On that occasion he drove at speeds of up to 130 km per hour, and was observed by police driving on the wrong side of the road causing a number of motorists to take evasive action to avoid a collision. At about 4:00 am on 3 March 2007 the appellant was the driver of a stolen motor vehicle which travelled at speeds of up to 140 km per hour in suburban areas so as to avoid apprehension by the police. On this occasion the appellant travelled through a red light and ultimately lost control of the vehicle, causing it to spin 180°.

(c) death or permanent injury to a single person: the appellant’s driving caused the death of one victim, and serious permanent injury to another.

(d) the victim is a stranger: the victims of these offences were strangers to the appellant.

(e) no or limited injury to the driver: the appellant suffered minor injuries.

(f) genuine remorse: the primary judge found that, notwithstanding the appellant’s pleas of guilty, he was unable to say with any certainty that the appellant was remorseful for what he had done. The primary judge considered that the appellant’s guilty pleas probably demonstrated his realisation of the strength of the Crown’s case, and he was satisfied that the appellant is more sorry for himself and the situation in which he has placed himself rather than for what he did to his victims. This finding was not the subject of attack in this appeal.

(g) plea of guilty of limited utilitarian value: the primary judge accepted that the appellant’s pleas had utilitarian value.

130. I now turn to the aggravating circumstances identified by Spigelman CJ:

(a) extent and nature of the injuries inflicted: death was caused to one victim, and extremely serious and permanent injuries were occasioned to the other.

(b) number of people put at risk: the appellant stole the motor vehicle which was the subject of, or used in, these offences at about 4:00 pm on 3 May 2012. At that time he was affected by both alcohol and cannabis. The vehicle was stolen from a car park in Manuka and driven by the appellant to an oval in Hughes. After doing a burnout in Coxen Street, he drove into Webster Street and then towards the intersection of Webster Street with Groom Street. At the intersection of Webster and Groom Street the appellant collided with another vehicle. He did not stop after the collision, and drove his stolen vehicle along Groom Street to the intersection with Kent Street, then along Kent Street to the intersection with Kitchener Street, then along Kitchener Street to the intersection with Birdwood Street, then along Birdwood Street to the intersection of Colvin Street until he turned right onto Colvin Street and stopped the vehicle. He then got out of the stolen vehicle and inspected the damage to it. He then re-entered the stolen vehicle and drove it to a service station in the shopping centre in Hughes. After filling the petrol tank with petrol, he drove the vehicle away from the service station without paying for the petrol onto Conyers Street, then into Wisdom Street before turning into Yamba Drive. The appellant drove the stolen vehicle through a red traffic light at the intersection of Yamba Drive and Kitchener Street, and then along Yamba Drive towards the Canberra Hospital. Shortly after 4:35 pm he approached the traffic light controlled pedestrian crossing in front of the Canberra Hospital. The victims were crossing with the “walk” sign at the pedestrian crossing as the appellant approached on Yamba Drive. At that point he was travelling at about 118 km per hour. The appellant, of course, had a red light facing him at the pedestrian crossing. He drove straight through the red light, narrowly missing one pedestrian, but hitting the two victims. The appellant did not stop, but continued to drive long Yamba Drive until, about 150 m from the pedestrian crossing, he collided with a Ford Territory four wheel drive vehicle, forcing that vehicle into another vehicle and bringing the appellant’s vehicle to stop. At the time these offences occurred children could be expected to be travelling home from school, and moderately heavy traffic could be expected on Yamba Drive. His path also took him past a major public hospital where it could be expected that people with limited mobility would utilise the pedestrian crossing. It is not possible to determine precisely how many people were put at risk by the appellant’s driving, but it is fair to infer that it was a substantial number.

(c) degree of speed: the appellant was seen to drive at high speed and on the wrong side of the road on Wisdom Street and was also seen to drive at high speed on Kitchener Street. He was also travelling at 118 km per hour on Yamba Drive, a 60 km per hour zone, outside the Canberra Hospital when he struck the victims. The speeds at which the appellant drove reveal a callous disregard for the safety of other members of the community.

(d) degree of intoxication or of substance abuse: the appellant was affected by both alcohol and cannabis at the time he drove the stolen motor vehicle. In a taped record of interview with police the appellant confessed to being intoxicated during the course of his driving. He said that when he stole the car he was “pissed – couldn’t see the road properly”, and that while he was driving he was “in and out of consciousness”. It is clear on the appellant’s own version of events that he was highly intoxicated by the alcohol and cannabis he had consumed.

(e) erratic or aggressive driving: from the point at the oval at Hughes where the appellant did a burnout to the point where he collided with the Ford Territory the appellant was observed to drive erratically on multiple occasions.

(f) competitive driving or showing off: this was not a feature of the appellant’s driving. (g) length of the journey during which others were exposed to risk: the length of the journey was not great, being no more than about 4 km. This was not, however, a case of momentary inattention or lapse of concentration, and the journey was through suburban areas at peak hour.

(h) ignoring of warnings: this was not a feature of these offences.

(i) escaping police pursuit: in his record of interview the appellant conceded that he drove as he did on Yamba Drive so as to avoid police apprehension for driving a stolen motor vehicle.

(j) degree of sleep deprivation: this was not a feature of these offences.

(k) failing to stop: the appellant failed to stop his vehicle after colliding with the victims, callously leaving them where they lay on the road. He continued to drive for another 150 m before colliding with another vehicle, and then attempted to flee the scene on foot.

131. A total of 8 of the 11 aggravating circumstances identified by Spigelman CJ in R v Whyte are found in the circumstances of the appellant’s offences of culpable driving. The appellant’s moral culpability was extremely high, and the circumstances of the offence and the characteristics of the offender called for sentences with strong deterrent components. The primary judge was obliged to impose sentences designed not only to deter others from committing these types of offences, but also to deter the appellant himself from this type of recklessly dangerous conduct.

132. In sentencing the appellant, the primary judge was obliged to apply the provisions of the Crimes (Sentencing) Act 2005 (ACT) (the Sentencing Act). Section 7 of the Sentencing Act provides that a court may impose a sentence on an offender for one or more of the following purposes:

(a) to ensure that the offender is adequately punished for the offence in a way that is just and appropriate; (b) to prevent crime by deterring the offender and other people from committing the same or similar offences; (c) to protect the community from the offender; (d) to promote the rehabilitation of the offender; (e) to make the offender accountable for his or her actions; (f) to denounce the conduct of the offender; (g) to recognise the harm done to the victim of the crime and the community.

133. None of these considerations must be given more weight than the others. In offences of this nature, the primary sentencing considerations are punishment, denunciation and deterrence. The primary judge was entitled to conclude that the appellant’s prospects of rehabilitation were not good. In sentencing the appellant the primary judge was obliged by s 33 (a) of the Sentencing Act to take into account current sentencing practice. The primary judge was provided with a number of authorities by the Crown relevant to sentencing for these types of offences, including R v Creighton [2011] ACTCA 13, R v Jurisic (1998) 45 NSWLR 209, and R v Whyte. Although the primary judge did not in the course of his reasons for sentencing directly refer to these authorities (which is not unusual), it is clear from the transcript of the sentence hearing that his Honour was aware of these decisions and accepted their relevance. There can, in my opinion, be no suggestion that the primary judge failed to take into account a relevant consideration, being current sentencing practice generally and with specific regard to offences of culpable driving.

134. The issue in this appeal, therefore, is whether the sentences imposed upon the appellant were individually or in the aggregate manifestly excessive. No real criticism was made of the sentence imposed for the offence of culpable driving causing grievous bodily harm. The appellant’s real criticism was of the sentences imposed for the offences of culpable driving causing death and dishonestly taking a motor vehicle. The appellant attempted to establish that the sentences imposed were manifestly excessive in a number of ways. First, with respect to the offence of dishonestly taking a motor vehicle, he pointed to the primary judge’s assessment of the objective seriousness of the offence and submitted that the sentence imposed did not reflect that assessment. For the reasons given by the Chief Justice this submission should be rejected. I would add that the primary judge underestimated, in my opinion, the objective seriousness of this offence. It was a brazen offence, committed during daylight hours and with an implement being used to obtain entry to the vehicle. In addition, the appellant had knowledge of how to start the vehicle without a key, which he utilised on this occasion. Whilst offences of this nature tend to be somewhat generic, I would describe this particular offence as being in the mid range of such offences.

135. Secondly, the appellant highlighted the fact that the sentence imposed for the offence of culpable driving causing death was 12 years’ imprisonment (before the discount of 10% for the plea of guilty was subtracted), being 85% of the maximum penalty of 14 years’ imprisonment. He contrasted this with the sentence imposed for the offence of culpable driving causing grievous bodily harm of 6 years’ imprisonment (again before the discount of 10% for the plea of guilty was subtracted) which was only 60% of the maximum penalty of 10 years’ imprisonment. The appellant submitted “even allowing for the scheduled offences a disparity of 25% between the relative sentences for otherwise identical criminal conduct is not justified”. The flaw in this argument is that the offences of culpable driving causing death and culpable driving causing grievous bodily harm were not “identical criminal conduct”. The offence of culpable driving causing death has, by definition, only one outcome for the victim, being death. The death of the victim is a constant factor in sentencing for this offence. The variable factors which determine the appropriate sentence for this offence are the circumstances of the driving and the circumstances of the offender. By contrast, the offence of culpable driving causing grievous bodily harm has three variable factors which determine the appropriate sentence, being the circumstances of the driving, the circumstances of the offender and the degree of harm inflicted. The harm inflicted must, as a matter of definition, in all such cases be grievous bodily harm, but a great range of injuries may come under the umbrella of grievous bodily harm. For example, a worst-case of culpable driving causing grievous bodily harm may involve the infliction of severe brain damage or quadriplegia.

136. It must be accepted that the offences of culpable driving causing death and culpable driving causing grievous bodily harm committed by the appellant have very significant circumstances in common. Both offences involve the same offender and the same course of driving. However, the harm inflicted by the appellant in the lesser offence, whilst serious and certainly constituting grievous bodily harm, was not amongst the most serious forms of harm that would come within this offence. In my opinion, this explains the difference, in percentage terms, between the sentences imposed by the primary judge and the maximum penalties with respect to each of these offences.

137. Finally, the appellant referred to a number of previously decided cases, citing the penalties imposed in those cases, to support his submission that the penalty imposed by the primary judge for the offence of culpable driving causing death, and also the aggregate sentence, was manifestly excessive. There can be no doubt that reference to sentences imposed in previous cases involving the same type of offending can provide a useful guide in sentencing an offender. In addition, consistency in sentencing is important: Lowe v R (1984) 154 CLR 606; Wong v The Queen (2001) 207 CLR 584 per Gleeson CJ at [6]. The consistency required by the criminal law in sentencing offenders is not to be mistaken for numerical equivalence. In Hili v The Queen (2010) 242 CLR 520 the plurality of the High Court (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ) said:

138. Consistency is not demonstrated by, and does not require, numerical equivalence. Presentation of the sentences that have been passed on federal offenders in numerical tables, bar charts or graphs is not useful to a sentencing judge. It is not useful because referring only to the lengths of sentences passed says nothing about why sentences were fixed as they were. Presentation in any of these forms suggests, wrongly, that the task of a sentencing judge is to interpolate the result of the instant case on a graph that depicts the available outcomes. But not only is the number of federal offences sentenced each year very small, the offences for which they are sentenced, the circumstances attending their offending, and their personal circumstances are so varied that it is not possible to make any useful statistical analysis or graphical depiction of the results. 49. The consistency that is sought is consistency in the application of the relevant legal principles. And that requires consistency in the application of Pt 1B of the Crimes Act. When it is said that the search is for “reasonable consistency”, what is sought is the treatment of like cases alike, and different cases differently. Consistency of that kind is not capable of mathematical expression. It is not capable of expression in tabular form.

139. The appellant provided us with a schedule of nine previous cases, decided in this Territory and in other jurisdictions, said to be comparable with the present. However caution must be exercised in considering the sentences imposed in these cases. In Hudson v The Queen (2010) 205 A Crim R 199 the Victorian Court of Appeal (Ashley, Redlich and Harper JJ) said:

140. Sentences imposed in “like” cases provide some indication of the range that is open in the proper exercise of the discretion. They will indicate, subject to relevant discretionary considerations, the order of the sentence that might be expected to be attracted by a certain type of offender who commits a certain type of offence. A general overview of sentences imposed for offences of a similar character will play a part in informing the “instinctive reaction” when a court is asked to consider whether a sentence is manifestly inadequate or excessive. They are an indicator of “current sentencing practices” which is one factor that the court must consider under s 5 (2) of the Sentencing Act 1991. By facilitating the identification of the range, similar types of cases serve the criminal justice objective that sentencing should be systematically fair and consistent. They advance the underlying value of equality under the law. 29. “Like” cases can only, at best, provide a general guide or impression as to the appropriate range of sentences. In that context it has been said on many occasions that “comparable cases” can only provide limited assistance to this court. They may however be used in search of unifying principles. ........ 31. A detailed examination of “like” cases to implicitly suggest that a particular sentence is the correct one or that the sentence should fall within a very narrow band, is not permissible. Sentences imposed in other cases are not precedents which must be applied unless they can be distinguished. Where principles of parity do not apply, they are not regarded as some sort of “benchmark” which is determinative of the sentence to be imposed. To attempt to so utilise other cases within a particular category involves the unwarranted assumption that all of the relevant factors which bore upon the imposition of those comparative sentences can be identified and weighted. There may be many reasons why the sentences in those cases should not be viewed by the sentencing judge as an appropriate sentence, or even a guide. Because of the dissimilarity in the offending conduct in other cases and the matter is personal to the offenders, it would be an error to directly compare the sentence under challenge with that imposed in other cases. 32. To undertake and utilise a comparative analysis, whether at first instance or on appeal, in an attempt to identify a sentence in a “like” case that is a fair comparison, is calculated to introduce a level of mathematical precision inimical to the instinctive synthesis. Where the parity principle is not enlivened, records to other cases is not undertaken to strike some equality with another particular sentence. Consistency is to be achieved by the application of the appropriate range and not from the application of single instances of “like” cases. The adoption of a sentence selected by an earlier court, even if the case is very similar, would be to sacrifice the proper exercise of judicial discretion in pursuit of consistency of sentencing. 33. It is no part of the sentencing task, or the assessment of a sentence on appeal, to embark upon that level of analysis of comparable cases. However, there has been an increasing tendency to overlook these limitations. Accordingly one must be wary of attempts to examine a comparable case in “micro detail”, as such an approach will ordinarily be indicative of an intent to use the case is providing something more than a guide to arrange. 34. Other jurisdictions have also deprecated the practice of inviting comparisons between the challenge sentence and sentences in other cases. Such comparisons have been viewed as providing no meaningful assistance other than as a general indicator of whether the impugned sentence is outside the range.

141. These principles were recently reaffirmed by the Victorian Court of Appeal in Reid (a pseudonym) v The Queen [2014] VSCA 145, where the Court (Maxwell P, Whelan and Priest JJ) also acknowledged the difficulties associated with appeal courts looking at schedules and tables showing the bare results of sentencing in other cases without having recourse to the unique and individual features of each case. Even greater difficulty is occasioned where, as here, a relatively small number of supposedly comparable cases are contained within the schedule.

142. Bearing in mind the limitations inherent in the use of supposedly comparable cases in determining whether a sentence is manifestly excessive, I will now briefly examine the cases referred to by the appellant in the table presented to this Court. In R v Cousins [2002] NSWCCA 81 the offender was originally sentenced to a term of seven years’ imprisonment for an offence of aggravated dangerous driving occasioning death. On appeal, the Crown submitted that the case was in the worst category of cases and could attract the maximum penalty for which the law provided, being 14 years’ imprisonment. The Court (Spigelman CJ, Grove and Smart JJ) did not accept this submission, albeit that they accepted “that the objective circumstances were among the worse that one could imagine”. In the table provided to this Court by the appellant, the Court in R v Cousins is misquoted in this passage as suggesting that the objective circumstances were amongst the worst that one could imagine. Clearly this was not what was intended. The Court in R v Cousins in this passage was, in my opinion, indicating that the offence was in the upper range of offences of this nature. The offender’s driving in that case not only caused the death of a passenger in the vehicle, it also caused grievous bodily harm to another. The offender was driving a stolen car and was a disqualified driver. He had a long criminal history. He drove at excessive speed and with recklessness involving a serious risk to many other innocent people, including the police. In the course of a police chase he drove through a red light and collided with a cement truck. He pleaded guilty to the charge. On appeal, his sentence was increased to eight years’ imprisonment.

143. A number of comments should be made about the outcome in R v Cousins and its comparability with the present case. First, this was a Crown appeal which was heard before the High Court decided Bui v Director of Public Prosecutions (Cth) (2012) 244 CLR 638, so that the traditional common law principle of restraint in resentencing after a Crown appeal, based upon principles of double jeopardy, would have influenced the Court in resentencing the offender. In R v Black (unreported New South Wales Court of Criminal Appeal 23 July 1998, cited in Bombardieri v The Queen (2010) 203 A Crim R 89) the NSW Court of Criminal Appeal warned that sentences imposed after Crown appeals are of little value in ascertaining the appropriate range of sentence to be imposed in trial courts. Secondly, whilst there are a number of similarities between that case and the present, there are also a number of dissimilarities. In particular, the offender was not intoxicated by reason of alcohol or illicit drugs at the time he committed the offence. Additionally, whilst the offender in that case had a previous conviction for driving in a manner dangerous to other persons, there is no suggestion that he had previously been involved in dangerous driving to avoid apprehension by the police.

144. In R v Ryan (2003) 141 A Crim R 403, the New South Wales Court of Criminal Appeal considered an appeal from a sentence of 7 years 6 months’ imprisonment for an offence of aggravated dangerous driving causing death, which carried a maximum penalty of 14 years’ imprisonment. The offender pleaded guilty to the charge, which involved him driving at 75 km per hour in excess of the speed limit, colliding with a car stationary at a red light and propelling that car into the intersection where it was struck by another car. The offender got out of his car and ran from the scene. The offender’s sentence was reduced on appeal to one of six years’ imprisonment with a nonparole period of four years. It is immediately apparent from a perusal of the decision in R v Ryan that there were numerous differences between the offender and the circumstances of the offence in that case, and those which pertain to the appellant. The offender in that case was not under the influence of alcohol or illicit drugs and had a very limited prior criminal and traffic history. There was evidence before the court that the offender was a person of prior good character. The offence did not occur in the course of a police pursuit. The offender did not have any prior history of dangerous driving, particularly in order to avoid police apprehension.

145. The next case the appellant referred us to was WW v R [2012] NSWCCA 165, where the NSW Court of Criminal Appeal dismissed an appeal alleging that a sentence of four years’ imprisonment for an offence of driving in a manner dangerous occasioning death was manifestly excessive. The offence carried a maximum penalty of 10 years’ imprisonment, and the offender entered a plea of guilty shortly before the trial was due to commence. The offender was 18 years old and was either texting or distracted by his phone when he hit a cyclist. He failed to stop. He displayed limited remorse. It is apparent that this case also differs significantly from that of the appellant. The offender was not intoxicated, and the offence was one of momentary inattention. There was no indication of excessive speed or of any pattern of dangerous driving leading up to the collision. The offender was not engaged in a police pursuit.

146. The appellant referred us to Williams v R [2012] NSWCCA 286, where the New South Wales Court of Criminal Appeal refused leave to appeal from a sentence of 3 years’ imprisonment for an offence of aggravated dangerous driving causing grievous bodily harm and a sentence of 6 years’ imprisonment for an offence of aggravated dangerous driving causing death (maximum penalty of 14 years’ imprisonment), aggregated so that the overall sentence was one of 8 years’ imprisonment with a nonparole period of 5 years. The offender in that case was a young indigenous woman who was heavily intoxicated at the time of the offence. It appears that she fell asleep whilst driving as a consequence of the effects of intoxication resulting in the car she was driving hitting a light pole. The victims were both passengers in the vehicle driven by the offender. This case differs from that of the appellant in a number of respects. The offender was not attempting to evade police at the time of the accident and whilst she had a previous criminal history and traffic history, there is no reference in the reported decision to her having previously been convicted of dangerous driving or some cognate offence, or having previously been involved in attempting to evade police pursuit. There was some evidence of erratic driving by the offender prior to the collision, although it is not clear for what distance. There was no suggestion of excessive speed.

147. The next case the appellant referred us to was Director of Public Prosecutions v Johnstone (2006) 168 A Crim R 223, which was a Crown appeal to the Court of Appeal of Victoria against an aggregate sentence of six years nine months imprisonment for two offences of culpable driving causing death and one offence of negligently causing serious injury. The offender was the driver of a motor vehicle which failed to negotiate a sweeping left-hand bend and struck a utility pole. The offender became distracted by reading a mobile phone message. The vehicle driven by the offender was overloaded, with seven people in the vehicle at the time, some unrestrained by seatbelts. On appeal, the sentences were increased such as that an aggregate sentence of six years nine months’ imprisonment was imposed, with a nonparole period of three years three months. There were significant differences between that offence, and the characteristics of that offender, and the circumstances surrounding the appellant’s offences. The offender was a person of otherwise good character, there was no suggestion of excessive speed or of the offender being intoxicated. There was no police pursuit, no erratic or aggressive driving by the offender leading to the collision and no failure to stop.

148. The appellant then referred us to R v Franklin [2009] VSCA 77, which was an appeal against sentence imposed for two counts of culpable driving causing death and two counts of negligently causing serious injury. The offender entered pleas of guilty and was sentenced at first instance to an aggregate sentence of 11 years’ imprisonment with a nonparole period of 7 years. He was resentenced on appeal to seven years’ imprisonment on each count of culpable driving causing death, to two years six months’ imprisonment on one count of negligently causing serious injury and nine months’ imprisonment on the final count. The sentences were partially accumulated so that the overall sentence was one of nine years nine months’ imprisonment with a nonparole period of five years six months. The offender drove while intoxicated and was seen to drive in a “hoon like manner” by revving his engine, attempting to do a burnout and a fish tail in his car. He lost control of his vehicle and struck four pedestrians, two of whom died and two sustained very serious injuries. The offender was a person of otherwise good character who had no history of driving dangerously, and who was not engaged in a police pursuit at the time of the offence. He stopped after the collision and attempted to telephone emergency services before moving the car a short distance from the scene and awaiting police arrival.

149. The final case referred to by the appellant in his table was R v Scholes (1998) 102 A Crim R 510, which was a Crown appeal against the inadequacy of sentences of five years and nine months’ imprisonment on each of two counts of causing death by culpably driving negligently, partially accumulated so that the overall sentence was one of six years’ imprisonment with a nonparole period of four years. The maximum penalty for each such offence was 15 years’ imprisonment. The offender was on parole for a culpable driving offence and was a disqualified driver at the time he committed these offences. He had a very bad driving history. While under the influence of alcohol and travelling at high speed he lost control of his vehicle, travelling onto the wrong side of the road and colliding with an oncoming vehicle. Two of his passengers, his girlfriend and his brother, died as a result of the collision. He then dragged his girlfriend, the front seat passenger, into the driver’s seat in an effort to arrange it so she looked like she was the driver. He then told police he was not the driver. At first instance he was sentenced to an aggregate term of imprisonment of six years with a nonparole period of four years. On appeal this was increased to eight years’ imprisonment with a nonparole period of six years. This also was a decision which preceded R v Bui, so that it may be inferred that the ultimate sentence imposed was affected by considerations of double jeopardy.

150. It is abundantly clear, even from this limited analysis of these cases, that none are directly comparable to the present. They provide some guidance of the types of sentence imposed for this type of offending, but it cannot be suggested that they provide a tariff or even an upper limit with respect to the present offence of culpable driving causing death.

151. In the recent case of R v Wright [2013] NSWCCA 82 the Court of Criminal Appeal dismissed an appeal alleging that an aggregate sentence of nine years six months’ imprisonment for one offence of aggravated dangerous driving causing death and one offence of aggravated dangerous driving occasioning grievous bodily harm was manifestly excessive. The sentencing judge had reduced the sentence by 25% to reflect the offender’s pleas of guilty. The sentence imposed for the individual offence of aggravated dangerous driving causing death was 9 years’ imprisonment, so that the starting point for this offence before a discount for the plea of guilty was subtracted, was 12 years’ imprisonment. The maximum penalty for that offence was 14 years’ imprisonment. The offender in that case was intoxicated by alcohol and drove erratically and at high speed for a distance of approximately 38 km along the Pacific Highway in northern New South Wales. The two victims, who were aged 16 and 14 respectively, were passengers in the vehicle. The offender had a very poor traffic record between 1984 and 1997, including four convictions for driving with the high range concentration of alcohol. His licence was disqualified between 1997 and 2002, and after 2002 he only had one traffic infringement notice for speeding in 2007 prior to the offences, which occurred in January 2011. The offender’s upbringing was characterised by abuse and neglect, with his mother suffering schizophrenia. The offender had been to over 20 schools and had six stepfathers, five of whom beat him and one of whom put a shotgun to his head. The offender himself was diagnosed with major depression, alcohol dependence and post-traumatic stress disorder. The offender also suffered significant injuries in the collision which led to the charges. On appeal, the offender argued that the sentence imposed upon him for the offence of aggravated dangerous driving causing death was higher than previous sentences given for that type of offending, and was greater than the upper range of the Judicial Commission statistics for that type of offending. In rejecting those arguments, the Court of Criminal Appeal noted the limited value of what are said to be comparative cases. It was also submitted on behalf of the offender that the sentence imposed for the offence of aggravated dangerous driving causing death was more appropriate for the “more serious” offence of manslaughter. The Court of Criminal Appeal said:

152. It is well recognised that manslaughter is a more serious crime than the offence of aggravated dangerous driving... which is reflected by the former carrying a maximum penalty of 25 years’ imprisonment whereas the latter carries a maximum penalty of 14 years’ imprisonment. Sometimes the distinction in the culpability of an offender charged with the statutory offence as distinct from manslaughter will be a fine one, but that does not mean that an offender can be punished for the crime of manslaughter for which he has not been charged: R v Vukic [2003] NSWCCA 13 per Adams J at [9]; Thompson v R [2007] NSWCCA 299 at [15]. 83. However, sentences imposed in motor/manslaughter cases do not set an upper limit for offences of aggravated dangerous driving causing death. The upper limit is fixed by the maximum penalty of 14 years’ imprisonment, which remains a yardstick when assessing a sentence appropriate to the objective and subjective circumstances of the offence.

153. It must be accepted that the offender in R v Wright drove a considerably longer distance in an erratic manner and whilst more intoxicated than the appellant. His driving was, it appears, in a rural area and late at night. Also, as the Court of Criminal Appeal noted, his driving did not occur in the context of a police pursuit. There is no suggestion in the reported decision that the offender had previous convictions for dangerous driving, or cognate offences, or that he had previously been involved in driving dangerously to avoid apprehension by the police. Whilst there were aggravating circumstances identified in R v Wright that are not present in the appellant’s case, the converse is also true.

154. The fact that a person who is killed or injured as a result of the culpable driving of a motor vehicle, or aggravated dangerous driving, is a passenger in the vehicle is certainly a relevant consideration in sentencing, particularly where the offender had responsibility for the care or control of the victim at the time. I am unable, however, to discern from the cases any principle or practice that this consideration is to be given greater weight as an aggravating circumstance than other considerations, such as whether the offending occurred as part of a police pursuit. They are simply factors that go into the mix.

155. The appellant’s offences were not the result of a momentary lapse of attention. The appellant embarked on a deliberate course of driving so as to avoid apprehension by the police. The community is rightly concerned when innocent lives are lost, or its citizens severely injured, by offenders using motor vehicles to escape apprehension by the police. Such incidents commonly lead to debate concerning whether police should engage in pursuit of offenders who drive, or may drive, recklessly in order to avoid apprehension. Community concern about police engaging in pursuit of offenders such as the appellant ironically provides an incentive to criminal offenders to drive recklessly, in the hope that police will cease their pursuit. Where such offenders are apprehended, they should expect condign punishment. Courts have an obligation to impose such punishment as part of the process of deterring reckless or dangerous driving in order to avoid apprehension by the police.

156. The sentences imposed upon the appellant constitute stern punishment, as they were no doubt intended to. The primary judge did not consider the appellant’s offences, and in particular the offence of culpable driving causing death, to fall within the range of the worst offences of their type. Had he done so, he would have applied the maximum penalty before allowing any discount for the appellant’s pleas of guilty. The primary judge clearly considered the offence of culpable driving causing death to be close to the worst type of offence of its kind. Bearing in mind all of the aggravating circumstances referred to above, I am not persuaded that his Honour was incorrect. None of the cases to which we have been referred, in my opinion, allow an inference to be drawn that the primary judge fell into error in sentencing the appellant with respect to the offence of culpable driving causing death, or in terms of the aggregate sentence imposed.

157. I would dismiss the appeal.

I certify that the preceding paragraphs numbers one hundred and sixteen [116] to one hundred and fifty-four [154] are a true copy of the Reasons for Judgment herein of his Honour Justice Burns.

Associate:

Date: 16 October 2014

ROSS J:

155. The appellant appeals from the sentences imposed by Nield AJ on 18 June 2013 following pleas of guilty to three charges: culpable driving causing death; culpable driving causing grievous bodily harm and dishonestly taking a motor vehicle. All of these offences were committed on 3 May 2012 and at the time of committing the offences the appellant was on conditioned liberty (ie. serving a suspended sentence and on bail in respect of unrelated assault charges.) A number of additional offences were also taken into account pursuant to s.57 of the Crimes (Sentencing) Act 2005 (ACT) (the Sentencing Act). Nield AJ sentenced the appellant to 10 years 9 months’ imprisonment for the offence of culpable driving causing death; 5 years 4 months’ imprisonment for the offence of culpable driving causing grievous bodily harm and 2 years 8 months’ imprisonment for the offence of dishonestly taking a motor vehicle. After ordering partial cumulation his Honour imposed an aggregate sentence of 12 years 9 months’ imprisonment for these offences. The appeal is about whether the sentences imposed upon the appellant, either individually or in aggregate, were manifestly excessive.

156. The focus of the appellant’s case is on the sentences imposed for the offences of culpable driving causing death and dishonestly taking a motor vehicle. No criticism was advanced in respect of the sentence imposed for the offence of culpable driving causing grievous bodily harm, indeed during the course of oral argument the appellant conceded that the sentence imposed for this offence was not manifestly excessive: Transcript of the appeal proceedings p 5 lines 23-32. Nor did the appellant contend that his Honour’s orders in respect of the partial cumulation of the individual sentences were inappropriate: Transcript of the appeal proceedings at p 5 at lines 36-45 and p 6 lines 1-4.

157. Before turning to the sentence imposed in respect of the offence of culpable driving causing death, I propose to deal with the six ‘specific matters’ which the appellant identified in his written submission as particulars in support of the general proposition that the sentences imposed were manifestly excessive. It is important to observe that these matters were not pleaded as specific errors - a point confirmed during the course of oral argument: Transcript p 4 lines 18-40 - but rather are put as part of an ‘all encompassing’ submission that the sentence imposed was manifestly excessive. The appellant’s case was pleaded and argued on the sole ground that the sentences were manifestly excessive. The six ‘specific matters’ identified were:

“ (a) The 10% discount for the appellants plea of guilty did not properly represent the timing and circumstances of the plea or the remorse and contrition it reflected; (b) The sentence of 3 years imprisonment for the take and use motor vehicle offence, described by His Honour as “not particularly serious...not fall[ing] much above the bottom of the range of objective seriousness for offences of its kind” was itself manifestly excessive; (c) His Honour in assessing general deterrence took no account of the fact that the appellant had accepted mental health issues holding that they had no causal link to the offending; (d) His Honour took into account matters that were not properly able to be taken into account, namely driving offences of the appellant committed on 13 March 2008; (e) The combination of matters c and d in fact should have resulted in the moderation of any general deterrence aspect of the sentence in accordance with the Verdins principles; (f) The standards of sentencing customarily observed for the offence as reflected in the authorities provided to the His Honour by the Crown indicates the sentence imposed was manifestly excessive”

158. At the outset, I note that the matter referred to at (f) is considered later in the context of the appellant’s general submissions in relation to the contention that the sentences imposed were manifestly excessive. Further, the matter referred to at (d) was not the subject of much elaboration during the course of oral argument. It appears that one of the appellant’s previous serious driving episodes, in March 2008, was dealt with by way of a s.334(2)(a) order, having regard to the appellant’s mental impairment. During the course of oral argument counsel for the appellant submitted that the manner in which the Court dealt with the appellant’s conduct on that occasion ‘plays into whether or not his driving on this occasion could properly be said to be in some way influenced by his mental health condition’ :Transcript of appeal proceedings, p 25, lines 11-13. Viewed in that light the submission is put by way of further elaboration of the proposition (at (c)) that his Honour took no account of the appellant’s mental health issues. It was also faintly argued that the sentencing Judge was not entitled to take the March 2008 conduct into account as the charges had been dismissed. The appellant correctly characterised this as a ‘minor point’, particularly given the extent of the appellant’s prior offences, and in any event it was not put forward as an error in the House v The King (1936) 55 CLR 499 sense, but rather as a submission in support of the central contention that the sentence imposed was manifestly excessive. I need say no more about that particular issue.

159. As to the matters at (a), (b) and (e) I have had the benefit of reading the reasons of the Chief Justice in draft and for the reasons given by her Honour I would dismiss the appeal in respect of the sentence imposed for the offence of dishonestly taking a motor vehicle. In my view the sentence imposed for this offence was not manifestly excessive. I also agree with the Chief Justice’s conclusion that the appellant has failed to demonstrate specific error in the sentencing judge’s consideration of the discount for the guilty pleas. Save in one respect I also agree with the Chief Justice’s conclusion that there was no specific error in the sentencing judge’s consideration of the appellant’s mental health conditions. I return to that issue later. I also agree with her Honour’s observation that the appellant’s submissions in respect of these issues are relevant to the Court’s consideration of whether the sentence imposed was manifestly excessive. For the reasons which follow I am, regrettably, unable to agree with her Honour’s conclusion that the sentence imposed for the offence of culpable driving causing death was manifestly excessive. I now turn to that matter.

160. The appellant advances four broad lines of argument in support of the contention that the sentence imposed for the offence of culpable driving causing death was manifestly excessive:

(a) The appellant should have been afforded a higher discount for the guilty plea.

(b) The appellant’s mental health conditions should have moderated any general deterrence aspect of the sentence.

(c) The manifest excessiveness of the sentence imposed for culpable driving causing death is revealed when compared to the sentence imposed on the appellant for culpable driving causing grievous bodily harm.

(d) None of the comparative cases referred to in the table tendered by the Crown during the sentencing hearing approaches the sentence imposed on the appellant. Prior to applying the discount for the guilty plea the sentence imposed was 12 years imprisonment which is 85 percent of the maximum penalty (14 years imprisonment).

161. Before turning to deal with each of the arguments advanced by the appellant I propose to briefly deal with his Honour’s sentencing remarks.

162. The circumstances in which the offending took place are set out in a statement of facts tendered in the sentencing hearing and are summarised in the judgment of Burns J. I need not repeat them here. The culpable driving offences were plainly very serious. Nield AJ characterised the objective seriousness of the offending as falling ‘close to the top of the range’ for offences of that kind. At paragraph [20] of the sentencing remarks his Honour states:

“However, I consider that the offender’s manner of driving of the stolen motor vehicle to be particularly serious. He was driving the vehicle when his ability to control it was affected by the alcohol that he had consumed. He was driving the vehicle at a greatly excessive speed. He was attempting to avoid being apprehended by police. He failed to obey traffic signs and lights. He had total disregard for the other road users, both pedestrians and drivers and passengers in other vehicles. He failed to stop the vehicle after it struck Ms Bumpus and Ms Cox. He caused the vehicle to collide into the Ford Territory vehicle. He attempted to leave the scene. I see that these offences fall close to the top of the range of objective seriousness for offences of their kind.”

163. The appellant acknowledged that the culpable driving offences here were ‘extremely serious and in the upper level of seriousness of offences of this nature’: Appellant’s written submission at paragraph 46.

164. At the time of the offending the maximum penalties for the culpable driving offences were:

(a) culpable driving causing grievous bodily harm contrary to s.29(4) of the Crimes Act 1900 (ACT): 10 years’ imprisonment;

(b) culpable driving causing death contrary to s.29(2) of the Crimes Act 1900 (ACT): 14 years’ imprisonment.

165. Other than the matters to which I have already referred to (at paragraphs 158-160) there is no real challenge to his Honour’s findings in relation to the relevant sentencing considerations. In particular his Honour found that:

(i) The victim impact statements speak of the catastrophic affect of Ms Cox’s death on her family and friends and of substantial effect of the injuries inflicted on Ms Bumpus: sentencing reasons of Nield J at [25] - [31]. The stolen vehicle was extensively damaged and there was damage to another vehicle arising from a collision with the stolen vehicle: sentencing reasons of Nield J at [24]. (ii) The appellant’s admissions facilitated the police investigation and he is entitled to have those admissions taken into account in his favour in the determination of an appropriate penalty for each offence: Sentencing reasons of Nield J at [33]. (iii) The appellant’s pleas of guilty, though entered in the face of an overwhelming Crown case, facilitated the course of justice and his Honour discounted the sentences he would have imposed by 10 per cent on account of the guilty pleas: sentencing reasons of Nield J at [35]-[38]. (iv) The appellant was on conditional liberty at the time these offences were committed, a fact which his Honour described as ‘a seriously aggravating factor in relation to the subject offences’: sentencing reasons of Nield J at [40]. (v) The appellant was just over 24 years of age at the time he committed these offences. His Honour described the appellant in these terms: ‘He was not a juvenile, someone lacking maturity; rather he was a young adult ...’:Sentencing reasons of Nield J at [41]. (vi) The appellant had a difficult childhood. He was suspended from primary school on a number of occasions and was expelled from secondary school in year 10; he failed to complete year 10. He left home at 16 years of age and has since lived with different friends or relatives. Since leaving school he has engaged in some unskilled work, though only for a few short periods: sentencing reasons of Nield J at [45] - [46]. (vii) The appellant suffers a range of mental health conditions: either Asperger syndrome or Schizotypal personality disorder; substance abuse disorder due to alcohol and cannabis; XYY Chromosome disorder; anti-personality disorder; temporal lobe epilepsy; depression and anxiety. His Honour found that these conditions affected the appellant’s relationships and the way he has lived his life; but rejected the suggestion that they caused the appellant to commit the offences for which he was being sentenced: Sentencing reasons of Nield J at [47]. (viii) The appellant has what his Honour described as a ‘long and varied criminal record’ (sentencing reasons of Nield J at [48]) having been dealt with for some 50 offences including 6 counts of taking and driving a motor vehicle without the consent of the owner; 4 counts of driving a motor vehicle without a driver’s license or when disqualified from holding a driver’s license; one count each of dangerous driving, furious driving, reckless driving and not stopping a vehicle after a signal from police. In relation to the appellant’s criminal history his Honour said: “I think that it is obvious to say that the offender has learned nothing whatsoever from his earlier offending and from the penalties imposed upon him for the earlier offences. I do not refer to his criminal record as an aggravating factor of the subject offences, but because it is relevant to such factors as rehabilitation, reoffending and deterrence” :sentencing reasons of Nield J at [53]. (ix) A blood sample taken from the appellant shortly after he committed the culpable driving offences revealed a blood alcohol concentration of 0.099 and the presence of delta -9- tetrahydrocannabinal (THC) and a small concentration of citalopram, an anti-depressant drug. In his record of interview the appellant admitted that about half an hour before he stole the motor vehicle he had drunk 6 cans of premixed cans over the course of an hour. He also admitted to consuming ‘a couple of cones’ of cannabis at about 3am in the morning of the day on which he committed these offences. After consuming the alcohol the appellant said that he felt intoxicated. He described his level of intoxication as ‘probably high’ and out of ten (one being low) he rated his level of intoxication as ‘nine or eight’. The appellant also said that he felt ‘very dizzy and tired’ and ‘couldn’t see the road properly’. The appellant admitted that as a consequence of his intoxication he did not have proper control of the vehicle he was driving and that he should not have been driving in that condition: Exhibit E in the sentencing proceedings, A 95-112, 225-233, 267-270 and 422-425. His Honour referred to these matters at paragraph [55] of his sentencing reasons, in these terms: “I do not have any doubt that the amount of alcohol that he had drunk greatly affected in an adverse way his ability to manage and to control the stolen vehicle when he was driving it. I do not have any doubt that the after-effects from smoking cannabis contributed to his inability to manage and to control the vehicle when driving it.” (x) His Honour accepted that the appellant had taken full responsibility for what he did and the consequences of his actions - as shown by his admissions and guilty pleas - but did not find that the appellant was remorseful. At paragraph [59] of his sentencing remarks his Honour said: “Notwithstanding that he pleaded guilty to the offences, that he told police when interviewed that he was sorry for what happened, and that he told the author of the Pre-Sentence Report that he regrets everything that happened, as he did not give evidence before me and I cannot therefore assess the genuineness of his remorse for myself, I am unable to say with any certainty that the offender is remorseful for what he did. Frankly, I think that his guilty pleas show his realisation of the strength of the Crown’s cases and I think that he is more sorry for himself and the situation in which he has placed himself, rather than he is sorry for what he did to Ms Bumpus and the family of Ms Cox.” (xi) The appellant did not have good prospects of rehabilitation and there was a ‘real risk’ that he will reoffend after being released from prison: Sentencing reasons of Nield J at [60] and [61].

166. It is apparent from his Honour’s sentencing remarks that general and personal deterrence were given significant weight in his Honour’s synthesis of the various sentencing consideration. At paragraph [66] of the sentencing decision his Honour said:

“...Although he suffers from a number of mental health problems, as, in my view, none of them caused him to do what he did, I see personal deterrence to be important. The offender, who committed the subject offences only seven weeks after being dealt with by Refshauge J for a series of earlier committed offences, and who was on conditional liberty when he committed the subject offences, must be told, loudly and clearly, that repeated offending will not be tolerated. Others who drink alcohol and then drive a motor vehicle, who drive a motor vehicle at an excessive speed, or who drive a motor vehicle in a dangerous manner, must be warned, by sentences imposed upon offenders like this offender, that imprisonment, particularly if the driving causes grievous bodily harm or death, is a likely and, indeed, usual result.”

167. I now turn to consider the arguments advanced by the appellant in support of the contention that the sentence imposed for the offence of culpable driving causing death was manifestly excessive.

(i) The discount for the guilty plea

168. As I have mentioned, his Honour applied a discount of 10 percent on account of the guilty plea. The timing of the plea is plainly relevant to the extent of the discount afforded. In this case his Honour described the plea as ‘last minute’ but, as the Chief Justice observes, that was not the case. The pleas were indicated and entered before the trial date was set. Such circumstances would commonly result in a discount of 15 percent; but it is a matter within the discretion of the sentencing Judge, I am not persuaded that the 10 percent discount applied in this case was an error in the House v The King sense but I have had regard to the low level of discount applied in my consideration of whether the sentence was manifestly excessive.

(ii) The appellant’s mental health conditions

169. Section 33(1)(m) of the Sentencing Act provides that, if relevant in the context of a particular case, ‘the mental condition of the offender’ is to be taken into account in sentencing. It is common ground that the appellant suffers a range of mental health conditions.

170. Two reports addressing the appellant’s mental health conditions were tendered in the sentencing proceedings:

• A report by Dr Richard Furst, a consultant forensic psychiatrist: Appeal Book 236-245, Exhibit 1 in the proceedings at first instance; and

• A report by Mr Sam van Meurs: Appeal Book 246-257, Exhibit 2 in the proceedings at first instance.

171. The sentencing judge dealt with the appellant’s mental health at paragraph [47] of his sentencing reasons:

“The offender enjoys good physical health, albeit that he suffered a few head injuries during childhood, a fractured upper-arm when at school, and a fractured knee. I do not know what treatment he received for these injuries and whether he suffers any disabilities from these injuries. However, the offender does not enjoy good mental health. As revealed by the psychiatrist’s report (Exhibit 1) and the psychologist’s report (Exhibit 2), he suffers from either Aspergers syndrome or schizotypal personality disorder, substance abuse disorder due to alcohol and cannabis, XYY chromosome disorder, anti-social personality disorder, temporal lobe epilepsy, depression and anxiety. I accept that he suffers from these conditions and that they have affected his relationships with his parents, siblings, friends and girlfriend, and indeed they have affected the way that he has lived his life. But I do not accept that they caused him to steal a motor vehicle and to drive it dangerously at an excessive speed in attempting to evade police and to avoid apprehension by police.”

172. His Honour also noted that there was no evidence to suggest that the appellant’s mental health disorders would make prison life harder for him than it would be otherwise: Sentencing reasons at paragraph [62]. This observation was not challenged on appeal: Transcript appeal proceedings p 30 at lines 4-19. In dealing with the issue of deterrence his Honour observed that the appellant suffered from a number of mental health problems but that ‘none of them caused him to do what he did’ and that personal and general deterrence remained important sentencing objectives: Sentencing reasons at [66].

173. The appellant submits that his Honour did not moderate the need for general deterrence on account of the appellant’s mental health conditions and nor did his Honour find that the appellant’s moral culpability was reduced due to his mental health conditions. The appellant submitted that the failure to have regard to these matters resulted in the imposition of a manifestly excessive sentence.

174. While not relevant to the assessment of the objective seriousness of the offence (Muldrock v The Queen (2011) 244 CLR 120 at [27]; Young v The Queen [2012] NSWCCA 49 at [28]) an offender’s mental condition can have the effect of reducing their moral culpability and matters such as general deterrence may be accorded less weight (Muldrock v The Queen (2011) 244 CLR 120 at [53]; R v Verdins (2007) 16 VR 269; R v Israil [2002] NSWCCA 225 at [23]; R v Henry (1999) 46 NSWLR 346 at 354). In Muldrock v The Queen the High Court explained the rationale for this approach at [53]:

“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’.”

175. The relevant principles were summarised by McClellan CJ at CL (with whom Simpson J and Barr AJ agreed) in DPP (Cth) v De La Rosa ((2010) NSWLR 1 at [177]),:

“Where an offender is suffering from a mental illness, intellectual handicap or other mental problems the courts have developed principles to be applied when sentencing. They can be summarised in the following manner: • Where the state of a person’s mental health contributes to the commission of the offence in a material way; the offender’s moral culpability may be reduced. Consequently the need to denounce the crime may be reduced with a reduction in the sentence. • It may also have the consequence that an offender is an inappropriate vehicle for general deterrence resulting in a reduction in the sentence which would otherwise have been imposed. • It may mean that a custodial sentence may weigh more heavily on the person. Because the sentence will be more onerous for that person the length of the prison term or the conditions under which it is served may be reduced. • It may reduce or eliminate the significance of specific deterrence. • Conversely, it may be that because of a person’s mental illness, they present more of a danger to the community. In those circumstances, considerations of specific deterrence may result in an increased sentence. Where a person has been diagnosed with an Antisocial Personality Disorder there may be a particular need to give consideration to the protection of the public.” (citations omitted)

176. In relation to the two reports tendered in the sentencing proceedings, it is apparent that there is a difference of opinion regarding the exact diagnosis of the appellant. Dr Furst suggests a mental disorder in the form of Asperger syndrome and XYY syndrome. Mr Van Meurs however disputes this diagnosis and diagnoses the appellant with major depressive disorder and schizotypal personality disorder, antisocial personality disorder. Contrary to the Crown’s submission I am not persuaded that anything turns on the difference of opinion regarding the particular diagnosis. As the Victorian Court of Appeal observed in R v Verdins ([2007] VSCA 102 at [8]):

“The sentencing court should not have to concern itself with how a particular condition is to be classified. Difficulties of definition and classification in this field are notorious. There may be differences of expert opinion and diagnosis in relation to the offender. It may be that no particular condition can be identified. What matters is what the evidence shows about the nature, extent and effect of the mental impairment experienced by the offender at the relevant time.”

177. In this case the evidence as to whether there was a causal relationship between the conditions and the offending behaviour was limited. The high point of such evidence is in Dr Furst’s report where he states:

“His underlying mental disorder in the form of Aspergers Syndrome and XYY Syndrome probably mitigates somewhat against the seriousness of his actions, as they may have had a bearing on the poor judgment and impulsivity he demonstrated at the time of the offences in question before the court.” (emphasis added)

178. The reference in Dr Furst’s report to the appellant’s underlying mental health conditions probably mitigating the seriousness of the actions as they may have had a bearing on the poor judgement and impulsivity, is a fairly equivocal statement. There is no explicit affirmative statement to the effect that there was a causal link between the appellant’s mental health conditions and the offending for which he was being sentenced and neither of the medical experts gave evidence in the proceedings. His Honour accepted that the appellant suffered from conditions listed in both reports but did not accept that there was a causal link between the appellant’s mental conditions and the offending conduct: Appeal Book 244 at [47]. Given the equivocal nature of the evidence his Honour’s conclusion was reasonably open and does not disclose any error.

179. Further, as noted in De La Rosa (see paragraph 177 above) an offender’s moral culpability may be reduced in circumstances where the state of their mental health contributes to the commission of the offence. Absent some causal link between the offender’s mental health and the commission of the offence the occasion for reducing the offender’s moral culpability does not arise. Given his Honour’s finding as to the absence of such a causal link in this case it followed that there was no need to consider a reduction in the appellant’s moral culpability. There is also very limited evidence supporting any such reduction. Accordingly, this aspect of the appellant’s submission is rejected.

180. There is some force in the appellant’s submission that his Honour should have moderated the weight given to general deterrence. It is apparent from his sentencing reasons that his Honour did not moderate the weight to be accorded to general deterrence on account of the appellant’s mental health conditions (see paragraph 167 above). I accept that not every case of mental illness calls for less emphasis to be placed on the need for general deterrence (R v Wright [2013] NSWCCA 82 at [47]), but in my view this was such a case. The range and extent of the appellant’s mental health conditions called for some sensible moderation in considering the weight to be afforded to general deterrence, as Batt JA (with whom Winneke ACJ and Hampel AJA agreed) observed in R v Yaldiz ([1998] 2 VR 376 at 381, applied in R v Lewis; unreported, Court of Appeal (Winneke P, Brooking and Charles JJA), 20 April 1998, p 9; R v Swingler [2001] VSCA 26 at [13]; R v Chambers (above) at [26]-[28]; R v Ahmed [2006] VSCA 200 at [28]):

“General deterrence is not eliminated but still operates, sensibly moderated, in the case of an offender suffering from a mental disorder or severe intellectual handicap.”

181. Of course the fact that his Honour should have accorded some moderation to the weight to be afforded to general deterrence does not necessarily mean that the sentence imposed was manifestly excessive. The consideration of that question ultimately turns on an assessment of all of the relevant sentencing considerations. In this regard it is relevant to observe that the mental health of an offender may operate on various sentencing considerations, in different ways. As the plurality (per Mason CJ, Brennan, Dawson and Toohey JJ) observed in Veen (No. 2) ((1987-88) 77 ALR 385 at 393):

“The purposes of criminal punishment are various: protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform. The purposes overlap and none of them can be considered in isolation from the others when determining what is an appropriate sentence in a particular case. They are guideposts to the appropriate sentence but sometimes they point in different directions. And so a mental abnormality which makes an offender a danger to society when he is at large but which diminishes his moral culpability for a particular crime is a factor which has two countervailing effects: one which tends towards a longer custodial sentence, the other towards a shorter. These effects may balance out, but consideration of the danger to society cannot lead to the imposition of a more severe penalty than would have been imposed if the offender had not been suffering from a mental abnormality.”

182. Similarly, in Bugmy ((2013) 87 ALJR 1022 at 1032 [44]) the plurality held that an offender’s deprived background may give rise to considerations which enliven a number of sentencing purposes:

“Because the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending, it is right to speak of giving ‘full weight’ to an offender’s deprived background in every sentencing decision. However, this is not to suggest, as the appellant’s submissions were apt to do, that an offender’s deprived background has the same (mitigatory) relevance for all of the purposes of punishment is what makes the exercise of discretion so difficult. An offender’s childhood exposure to extreme violence and alcohol abuse may explain the offender’s recourse to violence when frustrated such that the offender’s moral culpability for the inability to control that impulse may be substantially reduced. However, the inability to control the violent response to frustration may increase the importance of protecting the community from the offender.” (citations omitted)

183. So it is in the present case. Mr Monfries’ mental health conditions and deprived background are factors which may be said to sensibly moderate general deterrence and mitigate the punishment for these offences, but his extensive criminal history, lack of remorse and the fact that he did not have good prospects of rehabilitation all suggest that personal deterrence and the need to protect the community loomed large in the synthesis of sentencing considerations. Of course a sentence should not be increased beyond what is proportionate to the crime merely in order to extend the period of protection of society from the risk of recidivism on the part of the offender: Veen (No.2), (1987-88) 77 ALR 385 at 390. But that does not mean that the protection of society is not a relevant sentencing consideration, as the plurality in Veen (No. 2) observed (at 390-391):

“It is one thing to say that the principle of proportionality precludes the imposition of a sentence extended beyond what is appropriate to the crime merely to protect society; it is another thing to say that the protection of society is not a material factor in fixing an appropriate sentence. The distinction in principle is clear between an extension merely by way of preventive detention, which is impermissible, and on exercise of the sentencing discretion having regard to the protection of society among other factors ... It must be acknowledged, however, that the practical observance of a distinction between extending a sentence merely to protect society and properly looking to society’s protection in determining the sentence calls for a judgment of experience and discernment.”

(iii) The culpable driving causing grievous bodily harm

184. The sentence imposed by Nield AJ in respect of the offence of culpable driving causing grievous bodily harm was 5 years and 4 months’ imprisonment. Absent the guilty plea his Honour would have sentenced the appellant to 6 years’ imprisonment. The essence of the appellant’s argument is that the disparity between the sentences imposed in respect of the culpable driving offences (in terms of the proportion each sentence bears to the relevant maximum penalty) supports the proposition that the sentence imposed for the offence of culpable driving causing death was manifestly excessive.

185. The appellant points to the fact that before the discount for the guilty pleas the sentence for culpable driving causing death was 85 per cent of the maximum penalty (12 years, maximum penalty 14 years); compared to the sentence for culpable driving causing GBH which was 60 per cent of the available maximum (6 years, maximum penalty 10 years). It is submitted that such a disparity is not justified ‘for otherwise identical criminal conduct’: Appellant’s written submissions at paragraph [50].

186. It may be accepted that the two culpable driving offences arose out of the same course of conduct and to that extent have much in common. But two matters explain the difference, in percentage terms, between the sentences imposed and the maximum penalties in respect of each offence. The first is that in imposing the sentence in respect of the offence of culpable driving causing death his Honour took into account a number of additional offences. I deal with this issue later but suffice to say here that his Honour observed that taking into account those offences meant that the sentence imposed in respect of culpable driving causing death ‘will be more severe than it would have been had it been the only offence’: Sentencing reasons at [65].

187. The second matter is that, as Burns J points out, in the case of culpable driving causing grievous bodily harm, the harm inflicted on the victim must, by definition, constitute grievous bodily harm but the range of injuries falling within that rubric will vary substantially. I also agree with his Honour’s observation that the harm inflicted by the appellant while serious and certainly constituting grievous bodily harm, was not among the most serious forms of harm that could fall within the scope of this offence. This characterisation is not to diminish the seriousness of the offence; nor does it diminish the impact on the victim, but rather recognises the reality that the type of harm resulting from this offence varies significantly.

188. For the reasons given I am not persuaded that there is any substance in this point.

(iv) Comparable sentences

189. Before turning to the appellant’s submissions in relation to comparable sentences it should be noted that the maximum penalty for the offence of culpable driving causing death was increased by the Crimes (Penalties) Amendment Act 2011, from 7 years imprisonment to the current maximum penalty of 14 years’ imprisonment.

190. The Explanatory Statement to the Crimes (Penalties) Amendment Bill 2011 observes that the increase in the penalty imposed for this offence would allow ACT courts to take guidance, where appropriate, from sentencing decisions in other jurisdictions:

“ACT courts take guidance from maximum penalties set by the legislature when applying sentencing to offenders. The ACT judiciary does not commonly cite sentences applied in other Australian jurisdictions, especially where there are significant differences with sentencing provisions. It has been derived by the ACT judiciary that the significant difference in maximum sentences between the ACT and other jurisdictions reflects an intention by the ACT legislature to impose a lower sentence than other Australia legislatures. A recent appeal case brought before the ACT Court of Appeal by the Director of Public Prosecutions illustrates this point. The case involved a culpable driving offence in which two passengers were killed. The Court of Appeal remarked on the level of maximum sentences set in the ACT when compared to other jurisdictions, particularly NSW and Victoria. The Court noted the significant differences and indicated that these differences meant the case law developed in these jurisdictions was irrelevant. This Bill seeks to outline a clear statement that the ACT Legislative Assembly does not view the prescribed offences as less serious in comparison to other Australian jurisdictions. This will allow ACT courts to take further guidance, where they determine appropriate, from the sentencing decisions in other jurisdictions.”

191. The increased penalty came into operation on 23 November 2011 and this was the first occasion on which an offender fell to be sentenced under the new maximum penalty: Transcript of sentencing proceedings p49 lines 11-12. Given the increase in the maximum penalty there was no relevant current sentencing practice in the ACT and no party contended otherwise. Both parties referred to sentences imposed for comparable offences (with like maximum penalties) in other jurisdictions (NSW and Victoria). The appellant submits that the sentence imposed on the appellant is significantly higher than the sentences imposed in other cases.

192. In seeking consistency sentencing judges have regard to what has been done in other cases. However, care must be taken in using what has been done in other cases. The consistency which is sought is consistency in the application of relevant legal principles, not numerical equivalence: Barbaro v The Queen (2014) 305 ALR 323 at 331 [40]. Past sentences provide guidance to sentencing judges and ‘stand as a yardstick against which to examine a proposed sentence’: Hili at [53]-[54] and Barbaro at [41. But while a history of sentencing can establish a range of sentences that have in fact been imposed, that history does not establish that the range is the correct range or that the upper and lower limits to the range are the correct upper or lower limits (Hili at [54]). As the High Court has said on a number of occasions, what is important is the unifying principles which past sentences reveal and reflect: Wong v The Queen (2001) 207 CLR 584 at 606 [59]; Hili at [54]; Barbaro at [41].

193. As to the articulation of unifying principles, the plurality in Wong said,:

“[R]ecording what sentences have been imposed in other cases is useful if, but only if, it is accompanied by an articulation of what are to be seen as the unifying principles which those disparate sentences may reveal. The production of bare statistics about sentences that have been passed tells the judge who is about to pass sentence on an offender very little that is useful if the sentencing judge is also told why those sentences were fixed as they were.” ((2001) 207 CLR 584 at 606 [59])

194. While acknowledging that the culpable driving offences in the present matter were extremely serious the appellant submits that the sentence imposed is significantly higher than any of those in the table of comparative sentences provided to the Court by the Crown. The particular cases referred to by the appellant are examined in some detail in the judgment of Burns J. I agree with his Honour’s analysis of those cases and with his conclusion that none of them are directly comparable to the present matter. I would also observe that the appellant made no attempt to articulate any unifying principles from the sentences imposed in the cases to which he referred. For my part the other sentences reveal a significant range of available sentences for this particular offence, depending on the objective seriousness of the offending and the subjective circumstances of the offender. I later deal with two particular comparable cases, Bombardieri and Wright.

195. As the plurality pointed out in Wong v The Queen ((2001) 207 CLR 584 of 605 [58]), appellate intervention on the ground that a sentence is manifestly excessive or manifestly inadequate ‘is not justified simply because the result arrived at below is materially different from other sentences that have been imposed in other cases.’ Rather, as the plurality in Wong went on to say:

“[i]ntervention is warranted only where the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons.”

196. During the appeal proceedings reference was made to two guideline judgments from NSW: R v Jurisic (1998) 45 NSWLR 209 and R v Whyte (2002) 55 NSWLR 252. In Jurisic the NSW Court of Criminal Appeal promulgated guidelines in relation to s52A of the Crimes Act 1900 (NSW), which covers the offences of dangerous driving occasioning death (maximum 10 years’ imprisonment); aggravated dangerous driving occasioning death (maximum 14 years’ imprisonment) and aggravated dangerous driving occasioning grievous bodily harm (maximum 11 years’ imprisonment). For present purposes the ACT offence of culpable driving causing death is comparable (in terms of its elements and maximum penalty) to the NSW offence of aggravated dangerous driving occasioning death. In Jurisic the Court (Spigelman CJ, with whom Wood CJ at CL, Sully, B M James and Adam JJ agreed) promulgated the following guideline (at 231):

“The list of mitigating and aggravating factors, conveniently collected by Lord Lane CJ in R v Boswell and quoted above, are reflected in the judgements of this Court to which I have made reference. The presence or absence of these factors – and their degree – will determine the appropriate penalty. A survey of the authorities indicates the following factors arise:

(i) Extent and nature of the injuries inflicted.

(ii) Number of people put at risk.

(iii) Degree of speed.

(iv) Degree of intoxication or of substance abuse.

(v) Erratic driving.

(vi) Competitive driving or showing off.

(vii) Length of the journey during which others were exposed to risk.

(viii) Ignoring of warnings.

(ix) Escaping police pursuit.

A number of these factors are reflected in the definition of “circumstances of aggravation” in s52A(7), for purposes of the two higher offences. Paragraph (i) and par (ii) focus on the occurrence, whereas pars (iii)-(xi) refer to the conduct of the offender. The presence of these latter factors may indicate that the offender has abandoned responsibility for his or her own conduct. When the presence of such a factor can be so described, then it can be said to be present to a material degree for purposes of determining an appropriate sentence.

In my opinion this Court should promulgate the following guidelines:

1. A non-custodial sentence for an offence against s 52A should be exceptional and almost invariably confined to cases involving momentary inattention or mi-judgment.

2. With a plea of guilty, wherever there is present to a material degree any aggravating factor involving the conduct of the offender, a custodial sentence (minimum plus additional or fixed term) of less than three years (in the case of dangerous driving causing death) and less than two years (in the case of dangerous driving causing grievous bodily harm) should be exceptional.

I realise that the formulation I propose - does the relevant aggravating factor manifest, in the circumstances of the case, that the offender has abandoned responsibility for his or her own conduct - introduces an element of judgment on which reasonable minds may differ. Nevertheless the formulation of the issue in such a way will serve the objective of consistency of sentencing with respect to conduct that the community had indicated plainly that it wishes to deter and condemn.

The period of three or two years, once the threshold of abandoning responsibility has been reached, is a starting point. The presence of additional aggravating factors, or their increases intensity, will determine the actual sentence. This is also the approach in the English guideline judgment on rape: R v Billam [1986] 1 WLR 349; [1986] 1 All ER 985.”

197. Such guidelines are intended to be indicative only and are not intended to be applied to every case as if they were rules binding sentencing judges (Jurisic at 220). The NSW Court of Criminal Appeal gave further consideration to this matter in Whyte. The Court observed that in a ‘typical case’ of dangerous driving causing death a custodial sentence will usually be appropriate unless the offender has a low level of moral culpability, as in the case momentary inattention or misjudgement. A ‘typical case’ was identified as:

(i) young offender;

(ii) of good character with no or limited prior convictions;

(iii) death or permanent injury to a single person;

(iv) the victim is a stranger;

(v) no or limited injury to the driver or the drivers intimates;

(vi) genuine remorse;

(vii) plea of guilty of limited utilitarian value.

198. The Court added two aggravating factors identified to those listed in Jurisic: degree of sleep deprivation and failing to stop.

199. The aggravating and mitigating factors identified in Jurisic and Whyte, while not binding on this Court, may be regarded as a useful distillation of factors which are relevant to the assessment of the objective seriousness of culpable driving offences. To that extent these judgments provide an articulation of relevant unifying principles of the type contemplated in Wong. Conclusion

200. The central issue in this appeal is whether the sentence imposed for the offence of culpable driving causing death was manifestly excessive.

201. The determination of the appropriate sentence in a particular case calls for the ‘instinctive syntheses’ of all of the relevant sentencing consideration. The purposes of sentencing are set out in s.7 of the Sentencing Act, as follows:

7 Purposes of sentencing (1) A court may impose a sentence on an offender for 1 or more of the following purposes: (a) to ensure that the offender is adequately punished for the offence in a way that is just and appropriate; (b) to prevent crime by deterring the offender and other people from committing the same or similar offences; (c) to protect the community from the offender; (d) to promote the rehabilitation of the offender; (e) to make the offender accountable for his or her actions; (f) to denounce the conduct of the offender; (g) to recognise the harm done to the victim of the crime and the community. (2) To remove any doubt, nothing about the order in which the purposes appear in subsection (1) implies that any purpose must be given greater weight than any other purpose. Note However, see s 133C in relation to the sentencing of a young offender.

202. Further, s.33 sets out a non-exhaustive test of the matters a court must consider (where relevant and known to the court) in deciding how an offender should be sentenced. These matters include, relevantly for present purposes:

• the nature and circumstances of the offence (s.33(1)(a));

• any other offences taken into account (s.33(1)(b));

• any injury, loss or damage resulting from the offence (s.33(1)(e));

• the effect of the offence on the victims and their families (s.33(1)(f));

• the degree of responsibility of the offender for the commission of the offence (s.33(1)(i));

• a plea of guilty (s.33(1)(j));

• any assistance by the offender in the administration of justice (s.33(1)(k));

• the cultural background, character, antecedents, age and physical or mental condition of the offender (s.33(1)(m));

• whether the offender was affected by alcohol or a controlled drug when the offence was committed and the circumstances in which the offender became affected (s.33(1)(p));

• the reason(s) why the offender committed the offence (s.33(1)(v)); • whether the offender has demonstrated remorse (s.33(1)(w)); and

• current sentencing practice (s.33(1)(za)).

203. It is apparent from his Honour’s sentencing reasons and the sentence imposed that he did not regard the offending as the worst of this type of offence. It is also clear that he regarded the culpable driving offences as falling ‘close to the top of the range of objective seriousness for offences of their kind’.

204. In this case, before the discount for the guilty plea, his Honour determined that a sentence of 12 years’ imprisonment was appropriate for the offence of culpable driving causing death. The sentence ultimately imposed for this offence after applying the 10 percent discount for the guilty plea, was 10 years and 9 months’ imprisonment. As I have mentioned Jurisic and Whyte provide a useful list of factors relevant to the assessment of objective seriousness of an offence of this type. The offending in the present case was attended by a number of aggravating circumstances. These are dealt with in greater detail in the judgment of Burns J, I agree within his Honour’s assessment and I need not repeat it. Suffice to say that the following aggravating circumstances were present:

(i) a substantial number of people were put at risk because of the appellant’s driving;

(ii) the appellant was travelling at 118km per hour in a 60km per hour zone outside the Canberra Hospital where he struck the victims;

(iii) the appellant was affected by both alcohol and cannabis at the time he was driving the stolen vehicle;

(iv) the appellant engaged in erratic or dangerous driving;

(v) the length and duration of the driving was not great - being no more than 4km -but it was through a suburban area during peak hour. This was not a case of momentary inattention or lapse of concentration;

(vi) on his own admission the appellant increased his speed to avoid police apprehension for driving a stolen vehicle; and

(vii) the appellant failed to stop after he struck the victims (Though it should be noted that failing to stop was taken into account in the ‘additional offences’ to which Nield AJ had regard).

205. It may also be observed that a number of mitigating factors referred to in Jurisic were absent in this case. The appellant was not a particularly young offender; he had a ‘long and varied criminal record’ and the sentencing Judge was not persuaded that he was genuinely remorseful.

206. A comparison between the present matter and the circumstances in two relatively recent NSW cases (Bombardieri v The Queen (2010) 203 A Crim R 89; R v Wright [2013] NSWCCA 82) serves to illustrate the complexity of the sentencing task in cases such as this. The purpose of such a comparison is illustrative only, the question of whether the sentence in this case manifestly excessive is not to be determined on the basis of a comparison with the sentence imposed in another case. As Hunt CJ at CL observed in R v Ellis ((1993) 68 A Crim R 449 at 461; cited with approval by this Court in R v Campbell [2010] ACTA 20): “What must be looked at is whether the challenged sentence is within the range appropriate to the objective gravity of the particular offence and to the subjective circumstances of the particular offender, and not whether it is more severe or more lenient than some other sentence which merely forms part of that range.”

207. In Bombardieri the offender pleaded guilty to one count of aggravated driving causing death and was sentenced to 10 years’ imprisonment with a nonparole period of six and a half years. But for the plea the sentencing judge would have regarded the appropriate sentence as 12 years’ imprisonment. The sole ground of appeal was that the sentence was manifestly excessive. The facts are set out in the judgment of Buddin J in the NSW Court of Criminal Appeal and may be briefly stated.

208. On 12 August 2007, the appellant left the Gold Coast, intending to drive to South Australia and drove almost 290 km before the fatal collision. Witnesses provided statements relating to the appellant’s high speed and erratic driving, including overtaking on the near side of the road, crossing over double yellow lines and driving into the path of oncoming traffic.

209. At 12.59pm, a speed camera recorded the appellant’s vehicle at 151 km/h. At 1.45 pm, a senior constable recorded the applicant on radar driving at 156 km/h in an 80 km/h zone. He pursued the appellant, reaching 160 km/h in a 100 km/h zone, but quickly ceased pursuit out of concern for the safety of others.

210. At about 2 pm, the same police officer noticed the appellant’s vehicle at an intersection. He followed the applicant down a side street where the appellant, in a manoeuvre to escape the police vehicle, caused a minor accident. The police officer stepped out of his vehicle, drew his revolver and ordered the applicant to turn off the engine. The appellant ignored this instruction and sped back onto the highway, where he was again pursued. Minutes later, the appellant pulled over to the side of the highway but when the police officer ran up to him the latter drove off once more.

211. At approximately 2.04pm, neither the pursuing officer nor the appellant were aware that a collision had occurred behind them. The circumstances were that when the applicant overtook a utility by crossing double lines, the second of the oncoming vehicles, presumably being driven to avoid a collision, swerved onto the grass verge then came back onto the road and into the path of a semi-trailer. The driver of the utility was killed instantly.

212. The appellant was 20 years of age at the time of sentencing and was receiving treatment for anxiety and depression. The sentencing judge accepted that the appellant was remorseful and found that he had good prospects for rehabilitation. He had previously been convicted of traffic offences, the most serious of which was driving at a dangerous speed and he did not possess a licence at the time of the offence. This was the appellant’s first custodial sentence. The Court allowed the appeal, confirmed the head sentence of 10 years’ imprisonment but reduced the nonparole period from six and a half years’ to 5 years and 9 months.

213. The extended course of dangerous and erratic driving in Bombardieri are more serious than in the present matter but there is an aggravating factor in the present matter which was not present in Bombardieri (ie intoxication). Further the offender in Bombardieri was 20 years old at the time he was sentenced and while he had some previous traffic convictions this was his first custodial sentence. He was also remorseful and the sentencing judge found that he had good prospects of rehabilitation. None of these mitigatory considerations feature in the matter before us and, further, the appellant in the present proceedings was on conditional liberty at the time of the offending and additional offences were taken into account in imposing the sentence for culpable driving causing death. I deal with that matter in more detail shortly.

214. In R v Wright [2013] NSWCCA 82 the NSW Court of Criminal Appeal dismissed an appeal in which it was contended that a sentence of 9 years’ imprisonment for one count of aggravated driving causing death was manifestly excessive. As is the case in the matter before us the notional starting point of the sentence in Wright was 12 years’ imprisonment which was two years less that the maximum penalty of 14 years’ imprisonment, before the sentencing Judge in that case applied a 25 percent discount for the guilty plea.

215. In Wright the offender drove his vehicle at an extreme speed along a major highway for some 38½ kilometres in circumstances where his driving ability was substantially impaired by alcohol. He placed not only his two young passengers (aged 14 and 16 years) at great risk but also many other motorists who were travelling along the Pacific Highway. The two young passengers had been living with the offender and his family off and on for four months prior to the offence. The offender lost control of the vehicle on a sweeping left bend, veering first onto the wrong side of the road then skidding sideways out of control into a stand of trees. Prior to skidding sideways the offender was driving the vehicle at a speed of between 163 and 197 km per hour. The applicable speed limit was 100km per hour. The sentencing Judge found that the applicant’s driving ability would have been very substantially impaired as a result of his level of intoxication. His Honour observed:

“So this was an extraordinary course of driving, two young passengers who were entitled to expect that they would be kept safe within that vehicle, a vehicle being driven by a person who clearly had no regard for their safety and exposed them and others to a significant degree of risk and harm.”

216. The 16 year old was killed in the collision and the 14 year old suffered serious injuries and spent almost two months in hospital (two broken femurs, a broken ankle, three broken ribs and a fractured tail bone). Like the present case the appellant in Wright suffered from a mental illness and a deprived childhood. While the extended course of driving in Wright and the presence of young passengers in the vehicle are considerations in favour of characterising that offending as more serious than the present matter there are a number of aggravating factors in the present matter which were not present in Wright (ie. evading a police pursuit). There were also significant mitigating factors which were present in Wright but absent in the matter before us, namely:

(i) In Wright the offender suffered extensive injuries in the accident including a broken shoulder and scapula, broken collarbone, 6 broken ribs, two fractured vertebrae and a broken pelvis. Both lungs were punctured as was his spleen. In the present appeal the appellant only suffered superficial injuries.

(ii) In Wright the sentencing Judge accepted that the appellant’s evidence reflect a ‘true expression of genuine remorse and contrition and empathy for the victims’. There was no such finding in the matter before us.

(iii) In Wright there was an element of extra curial punishment that was taken into account - the deceased was the best friend of the appellant’s son.

217. In addition to the absence of such mitigatory factors in the present matter the appellant’s extensive criminal history and the fact that he did not have good prospects of rehabilitation suggest that personal deterrence and the protection of the community would weigh more heavily in the synthesis of sentencing considerations. The fact that the appellant was on conditional liberty at the time of the offending is also a significant aggravating factor in relation to the subject offences.

218. There is a further matter which is a feature of the present case but was absent in Wright. In sentencing the appellant Neild AJ took into account four additional offences pursuant to Part 4.4 of the Sentencing Act (R v Taylor Schmidt [2013] ACTSC 295 (9 December 2013) at [8], [9], [81] and [105]). These offences occurred during the course of the driving incident that ultimately resulted in the appellant committing the culpable driving offences (one of failing to give particulars after a collision and three of failing to stop after a collision causing injury).

219. In R v Barton ((2001) 121 A Crim R 185 at 195 [64]) Spigelman CJ explained how a court is to take such additional offences into account, albeit in a different statutory context,:

“The court does so by giving greater weight to two elements which are always material in the sentencing process. The first is the need for personal deterrence, which the commission of the other offences will frequently indicate, ought to be given greater weight by reason of the course of conduct in which the accused has engaged. The second is the community’s entitlement to extract retribution for serious offences when there are offences for which no punishment has in fact been imposed. These elements are entitled to greater weight than they may otherwise be given when sentencing for the primary offence.”

220. The above observation is subject to the constraint imposed by s 57(3) of the Sentencing Act (which provides that any penalty imposed cannot exceed the maximum penalty for that offence notwithstanding that additional offences are taken into account) and by other relevant principles of sentencing such as totality (See Mill v The Queen (1988) 166 CLR 59; R v Tracey Campbell [2010] ACTCA 20 (31 August 2010) at [42]- [50]).When s 57(3) speaks of taking the offences into account, it means taking them into account in the same way as other matters are taken into account for the purpose of sentencing. As this Court observed in R v Tracey-Campbell ([2010] ACTCA 20 at [50]):

“No doubt it will generally have the result of increasing the sentence about to be imposed.”

221. His Honour referred to the effect of taking into account the additional offences in the course of his sentencing remarks at paragraph [65]:

“I will take the additional offences into account in the determination of an appropriate sentence for the offence of culpable driving causing death. Of course, my taking these additional offences into account in determining the sentence for the offence of culpable driving causing death will mean that the sentence for that offence will be more severe than it would have been had it been the only offence.”

222. The approach adopted by his Honour is consistent with authority and he was entitled to take the additional offences into account in the way he did. While his Honour was entitled to impose a more severe sentence that he would have otherwise proposed for the principal offence the additional offences did not justify the imposition of a substantially higher sentence. The additional offences were relatively minor matters that occurred as part of the course of conduct surrounding the subject offences.

223. The sentence imposed on the appellant was stern but I am not persuaded that it was manifestly excessive. In arriving at that conclusion I have had regard to those findings of his Honour which were unchallenged (see paragraphs [158]-[166] above); the low level of the discount provided for the guilty plea (see paragraph [169] above) and the need to provide some moderation of general deterrence as a sentencing consideration, albeit that the appellant’s mental health operates on other sentencing considerations (such as personal deterrence and the protection of society) in a different direction. I have also taken into account the objective seriousness of the offending.

224. In relation to the objective seriousness of the offending, I agree with the Chief Justice’s observations that it is possible to conceive of more serious culpable driving -particularly where passengers are involved and the driving continues for an extended period. But while I would not necessarily adopt the sentencing Judge’s characterisation of objective seriousness of this offence, (ie ‘close to the top of the range’) the offending was plainly very serious and in the upper level of the range of seriousness of such offences.

225. While I would not have imposed such a stern sentence that is not the test to be applied in an appeal in which the sole ground is that the sentence imposed was manifestly excessive. The Court’s power to substitute a sentence for that imposed at first instance can only be enlivened if it is satisfied that his Honour’s discretion miscarried in the result, that is, that his Honour imposed a sentence that was above the range of sentences that could be justly imposed for the offence (Everett v The Queen (1994) 181 CLR 295 at 300 per Brennan, Deane, Dawson and Gaudron JJ; 306 per McHugh J; Lacey v Attorney General (Qld) (2011) 242 CLR 572 at 581 [15]-[16] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ; Bugmy v The Queen (2013) 249 CLR 571 at [24] per French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ). I am not satisfied that is the case in the present matter.

226. For the reasons given I would dismiss the appeal.

I certify that the preceding paragraphs numbered one hundred and fifty-five [155] to two hundred and twenty-six [226] are a true copy of the Reasons for Judgment herein of his Honour Justice Ross.

Associate:

Date: 16 October 2014