R v Al-Salmani

The factual issues between the parties

1. In the course of this sentencing task I received two sets of written submissions from both the Crown and counsel for the offender. They were dated 22 May and 16 July 2020 respectively. Those submissions made clear that they were at odds in respect of the following matters of fact which I am required to resolve:

• the nature of the offenders driving in the period before the crash,
• the reliability and truthfulness of a key Crown witness being the offenders passenger, Ms Dalia Olwan,
• whether the offender was distracted by Ms Olwan during the course of his driving such that her conduct contributed to the impact,
• the speed at which the offender's vehicle was travelling at the time of the impact,
• whether the offender was affected by methylamphetamine at the time of the crash,
• whether Ms Olwan had caused the crash by activating the handbrake of the offender's vehicle immediately prior to the time of impact without notice to him, and
• whether Ms Olwan had admitted to doing so including in writing.

1. In seeking to resolve these matters I must consider the cases put at trial by the parties and the evidence led in support thereof by each of them.

The Crown case at trial

1. It was not in dispute that as at 18 January 2017, the offender was in a relationship with Dalia Olwan and they lived together in a granny flat at Miller in Western Sydney. On 18 January 2017 the offender had an appointment in relation to a car insurance claim. On that morning the offender and Ms Olwan woke up late and consequently were late for the appointment. They left their premises at Miller and the offender drove to a nearby pizza restaurant and purchased something to eat. After doing so their journey continued until the collision that is the subject of these proceedings. The evidence of Ms Olwan was that the period of time between leaving the pizza restaurant and the collision was about 15 minutes. Her evidence in the trial, which was unchallenged, was that the offender was speeding and overtaking cars after they left the pizza restaurant, and that she was requesting him to slow down.
2. The Crown case at trial was that at or about 1.10pm on 18 January 2017 on Cabramatta Road West, Cabramatta West, the offender drove a gold coloured Citroen motor vehicle at high speed; in an erratic manner that was dangerous; and that whilst doing so, he was impaired by the effects of methylamphetamine. The Crown case was that the offender was running late for an appointment because he had slept in, and that this partly explained his driving conduct. In reality of course there can be no valid explanation for it. Evidence was led in the Crown case from six eyewitnesses who were travelling in the same direction as the offender and had observed his manner of driving along Cabramatta Road West after he entered that road at the intersection of it and Meadows Road, Mt Pritchard in the period immediately prior to the collision. A consideration of the evidence has allowed me to infer that there was a distance of approximately 1 - 1.5 km between that intersection and the collision site. Evidence was also adduced from motorists and their passengers travelling in the opposite direction. The net effect of all of this evidence was that in the period immediately prior to the crash, the accused was speeding, although the exact speed at which he was travelling is unclear. Further he was weaving in and out of traffic and driving aggressively.
3. In my view, the fact of the speeding itself supports a finding of aggressive driving. A person driving on a suburban roadway at the speed and in the manner that the offender drove cannot be driving other than aggressively. It is also important to note the evidence of Ms Olwan was that as a consequence of his manner of driving, her body was moving from side to side such that her left shoulder hit the inside of the vehicle. A submission is made by the offender's counsel that this evidence from Ms Olwan does not establish the speed at which he was travelling in the period prior to the crash or that he was driving aggressively. I accept that the totality of the evidence does not allow me to conclude beyond reasonable doubt as to the precise speed at which the offender was travelling, other than in the period immediately prior to the collision, however I am satisfied beyond reasonable doubt that he was driving aggressively.
4. The Crown case was that where two long tyre marks were first visible on the roadway following the crash, outside 439 Cabramatta Road West, Cabramatta West, the offender lost control of his vehicle. The Crown case was that after doing so he crossed into the path of oncoming traffic and collided heavily with a Honda Jazz motor vehicle in which the three deceased persons were travelling. Ms Thang was driving that vehicle, Mr Ngo was the front passenger and his wife Mrs Nguyen was seated in the rear. It was the Crown case that the offender lost control at high speed as he drifted into the kerbside lane of Cabramatta Road West, approached a white 4-wheel drive motor vehicle travelling in that lane and executed a steering manoeuvre to the right to avoid colliding with that vehicle. The Crown case was that the manoeuvre was too great for the speed at which he was travelling and that this over steer caused the Citroen motor vehicle to go into a "critical speed yaw". This meant that it lost traction with the roadway and travelled onto the incorrect side of the road into the path of the Honda Jazz causing an offset frontal style collision.
5. Further, the Crown case was that at the time of entering the critical speed yaw, the offender was driving his motor vehicle at a speed of 114 km/h in circumstances where it was not in dispute that the applicable speed limit for the roadway was 60 km/h. That is, it was the Crown case that the offender was driving at 54 km/h in excess of the speed limit. The Crown asserted, that shortly prior to the offender's vehicle entering into a "critical speed yaw", and as it passed premises at 441A Cabramatta Road West, Cabramatta West, the vehicle was travelling at a speed of not less than 108 km/h, being 48km/h in excess of the speed limit. The evidence in respect of these speeds was provided in the Crown case by Crime Scene Officer Gavin Lennon.
6. As a result of the collision Ms Thang and Mr Ngo were trapped in the Honda. Mrs Nguyen was extracted from the vehicle but died at the scene a short time later. Ms Thang and Mr Ngo were conveyed to hospital by ambulance. On 20 January 2017 Mr Ngo died from the injuries he sustained in the collision. Ms Thang was treated at hospital and underwent surgery however died from her injuries on 29 January 2017.
7. There was no suggestion that the Citroen motor vehicle had any mechanical defect which had contributed to the collision.

The offender's case at trial

1. The defence case was that there was no dispute that the offender was the driver of the gold Citroen, or that there was an impact between his vehicle and the Honda Jazz, and as a consequence three persons died. His case was that he denied driving in a manner dangerous to the public, or that his vehicle crossing onto the incorrect side of the road was the result of a willed and conscious act by him. It was the offender's evidence that the movement of his vehicle into the path of the Honda Jazz was caused by the act of his passenger Dalia Olwan in activating the vehicle's handbrake without warning. It was said that this occurred in the course of a heated argument concerning his infidelity during which she punched him repeatedly. It was also contended for the offender in the trial, that the statutory defence that the law provides was made out, being that the deaths of the three persons in the Honda Jazz were not in any way attributable to the manner in which the Citroen vehicle was driven by him. Expert crash reconstruction evidence along with evidence of speed was given in the offender's case by Dr George Rechnitzer. He is an engineer with expertise in forensic and safety engineering, road safety, workplace safety and importantly for present purposes, accident investigation and collision reconstruction.

The crash reconstruction experts

1. The Crown case relied at least in part on CCTV footage obtained from premises at 441A Cabramatta Road West, Cabramatta West. That footage, along with other calculations undertaken by Crime Scene Officer Lennon allowed him to conclude the speeds the Crown asserted, and to which I have earlier referred. He particularly relied on an accepted scientific method of calculation called the "critical speed yaw equation". The evidence of Acting Sergeant Fenton confirmed the conclusions reached by Mr Lennon. Indeed, the evidence of Acting Sergeant Fenton was that the speed estimates made by Mr Lennon were conservative.
2. Crime Scene Officer Lennon also gave evidence concerning the tyre marks that had been left on the roadway by the offender's vehicle and what an examination of those tyre marks meant. His evidence was that those tyre marks were left on the road as a consequence of the offender's vehicle entering a critical speed yaw. Mr Lennon was asked questions by both the Crown and the offender's counsel concerning whether he was of the opinion that the handbrake of the vehicle had been applied immediately prior to the commencement of the tyre marks on the roadway. His evidence was that if that had occurred, the rear wheels of the offender's vehicle would have locked, and long, dark, broad and straight skid marks would have been apparent on the roadway. He said that as no such marks were observed, he had no doubt that the handbrake had not been applied prior to the tyre marks being left. His evidence was that the yaw marks he observed indicated the handbrake was not applied before the offender's vehicle moved onto the incorrect side of the road.
3. Dr Rechnitzer was retained by the offender's legal representatives. Importantly, he was asked to assume for the purpose of providing his opinion that the handbrake of the vehicle had been suddenly applied by Ms Olwan immediately prior to the vehicle moving into the westbound lane and into the path of the Honda. The thrust of his evidence was; 1. That the sudden application of the handbrake at speed can cause loss of control of a vehicle and create a steering force on the vehicle, independent of the driver. 2. Assuming that the handbrake was applied suddenly by the front seat passenger, on balance, this is the most likely cause of the offender's vehicle losing control and veering onto the wrong side of the road. 3. The tyre marks are indicative of the vehicle being in a yaw, that is partially slipping sideways whilst moving forwards, and the vehicle's trajectory to the right can be consistent with the handbrake being activated whilst the car was in motion. 4. In the assumed circumstance of the handbrake being activated and the vehicle losing control and veering onto the wrong side of the road, the offender would have had 1.43 seconds to react to the sudden loss of control. This was less than the general average perception response time of 1.5 seconds and accordingly the offender had insufficient reaction time available to deactivate the handbrake and regain control. 5. He estimated in his first report that the likely speed of the offender's vehicle at the start of the tyre marks and prior to veering onto the incorrect side of the road was 108 km/h. In his second report he revised that speed downwards to an estimate of 103 km/h to allow for an error tolerance of 5%. 6. While he agreed with the criteria identified by Mr Lennon to enable the calculation of speed using the critical speed yaw equation, he did not agree, assuming the application of the handbrake as he was instructed, that there had been a steering input from the driver. He said that the sudden application of the handbrake will readily induce a steering effect in a vehicle with no steering input from the driver. He was further of the view that it was not proper to apply the critical speed yaw calculation as Mr Lennon had done to calculate speed at the time that the tyre marks commenced, nor did he accept that the methodology in Acting Sergeant Fenton's validation testing was proper or sufficiently accurate.
4. While there was some dispute in the evidence, within a relatively small band, as to the speed of the offender's vehicle at the relevant time, I am satisfied that the verdict of the jury allows me to conclude beyond reasonable doubt, that the speeds at which the offender was driving in the moments immediately prior to the collision, were as advanced by the Crown.
5. I reject the submission of the offender that I am unable to determine the speed being travelled by him other than that it was more than 45 km/h over the speed limit. I am satisfied that the speed was as is asserted in the Crown case, being not less than 108 km/h as the vehicle passed 441A Cabramatta Road West and 114 km/h or 54 km/h in excess of the speed limit at the time that the tyre marks on the roadway commenced outside 439 Cabramatta Road West. The findings urged by the offender would not be consistent with the jury verdict and their clear preference for the expert crash reconstruction evidence in the Crown case over that in the offender's case. Further, the evidence in the offender's case that the vehicle was travelling at 103 km/h at the start of the tyre marks cannot sit with the jury verdict. If the jury had accepted that calculation then the offender would have been travelling at 43 km/h in excess of the applicable speed limit. In that event the offender would have been acquitted of the counts of aggravated dangerous driving causing death because those counts relied upon the jury being satisfied beyond reasonable doubt that the offender's vehicle exceeded the speed limit by more than 45 km/h, the fact of that speed being an element of each of those aggravated counts. I am satisfied that the offender was travelling at those speeds and exposing other members of the community to risk for the simple reason that he had slept in and was running late for an appointment. His conduct demonstrated a clear preparedness to elevate his own needs above those of all other members of the community who were using the roadway at the same time.

The principal issue in the trial - Was the handbrake activated by Ms Olwan?

1. Simply put, the principal issue in the trial was whether the crash was caused by the conduct of the offender, or whether it was caused by what the offender said was the conduct of Ms Olwan. As I directed the jury in my summing up, it was necessary for the Crown to satisfy it beyond reasonable doubt that the version of events given by the offender was not reasonably possible before verdicts of guilty could be returned. If the Crown had failed to so satisfy the jury, then the offender would have been acquitted. Further, the jury was directed that it was necessary for it to be satisfied beyond reasonable doubt that the offender's version that he was not voluntarily and consciously in control of the motor vehicle at the time of the impact could not reasonably be true. The jury was told that if they found that there was such a reasonable possibility, then the offender must be acquitted. The verdicts mean that I should proceed on the basis that the jury rejected the offender's version concerning the circumstances of the accident, being that it was caused by Ms Olwan activating the handbrake in the motor vehicle without notice; that he was not voluntarily and consciously in control of the vehicle at the time of the impact; or that Ms Olwan contributed to the crash by distracting his driving. A finding that Ms Olwan had caused or contributed to the crash would be entirely inconsistent with the jury verdicts.
2. As I have already noted, it is clear by virtue of the verdicts that the jury preferred and relied upon the evidence given in the Crown case by Crime Scene Officer Lennon over that in the defence case given by Dr Rechnitzer. That is, the jury accepted beyond reasonable doubt that the handbrake to the Citroen motor vehicle was not applied prior to the tyre marks on the roadway being left, because if it had been, then long, dark, broad and straight skid marks would have been apparent on the roadway, and they were not.
3. What is absolutely plain, and cannot be understated, is that the jury by its verdicts, categorically and emphatically rejected the evidence given by the offender and the version of the crash provided by him. This is particularly so as to his suggestion that it was the behaviour of Ms Olwan, rather than his own, that had caused the crash and claimed the lives of three innocent members of our community. The offender's attempt to escape responsibility for his behaviour, by casting the blame upon Ms Olwan was a feeble and ultimately unsuccessful attempt to escape the consequences of his appalling driving. On any view, this attempt at blame shifting was both calculated and cowardly.

The offender's impairment by methylamphetamine

1. It is necessary for me to consider and make findings on the issue of impairment, it going directly on the Crown case, to the course of driving that was undertaken by the offender at or about the time of the impact with the Honda Jazz. A consideration of this aspect also directly informs my assessment of the objective seriousness of the offending.
2. In dealing with the impairment issue it is necessary to consider the expert pharmacological evidence given in the trial. The Crown called Dr Judith Perl to give evidence. She is a clinical forensic pharmacologist who has been involved since 1979 in research concerning the effects of alcohol and other drugs on cognitive function and skills performance, particularly in relation to driving ability. She has published widely both in Australia and overseas in medical and scientific journals. She has been a consultant pharmacologist to the New South Wales police since 1984. There was no challenge during the trial to Dr Perl's qualifications and I have concluded that she is both a well-qualified and well regarded expert.
3. In reaching her conclusion that the offender was impaired by the use of methylamphetamine at the time of the crash, Dr Perl relied on a number of factors being; the excessive speed at which the offender's vehicle was travelling before the collision; the aggressive nature of his driving; and the observations made by the witness Lyle Walker who saw the collision, ran to the offender's car and observed that he was licking his lips, had a white substance in the corner of his mouth and that his pupils were dilated. Mr Walker was one of the first witnesses to give evidence in the trial and I formed the view that he was a compelling and truthful witness, for whom the events of 18 January 2017 have had a lasting deleterious impact. Dr Perl said that his observations were consistent with what one would expect to observe if a driver was impaired by the use of methylamphetamine. She also opined that the blood sample of the offender taken some hours later at Liverpool Hospital indicating the presence of methylamphetamine in an amount of 0.10 mg/L, meant that there would have been a higher reading at the time of the crash. Her evidence was to the effect that methylamphetamine was most likely used by the offender within a few hours of the blood sample being taken. In cross examination she indicated that the period she was referring to was between 6 to 12 hours, and closer to 6 hours, being on the day of the collision. While indicating that in her view the offender's driving was definitely impaired, she was unable to provide an opinion as to the degree of that impairment having regard to the significant injuries that were sustained by him in the collision. She conceded that it was a combination of the factors I have identified that allowed her to reach the conclusion she did as to the offender's impairment, and that no one of those factors alone would have allowed her to do so.
4. Dr Michael Robertson was called to give evidence in the defence case. He is a consultant pharmacologist, forensic toxicologist and chemist with more than 25 years professional experience. He told the jury that he routinely prepares expert reports and testifies throughout Australia and overseas. He noted that while some of the observations of the offender made by police and ambulance officers at the scene of the crash are consistent with being affected by a stimulant such as methylamphetamine, it was possible that the symptoms observed were not caused by the use of that drug, as they were equally consistent with shock following what was undoubtedly a significant motor vehicle collision. Dr Robertson opined that the general effects of methylamphetamine on an individual are broad, largely unpredictable and relate to a number of interrelated factors including dose, purity, the route of administration, the time of the dose and the prior history of drug use. He said that these factors will influence if, or to what extent an individual may be affected or impaired by methylamphetamine, and that a blood concentration in isolation cannot reliably determine what affect the drug was having on an individual at a particular time. He went on to say that a methylamphetamine reading of 0.10 mg/L may mean that there was little if any driving related impairment, and that other evidence of impairment is typically required to confirm whether an individual was in fact impaired at a specific time. Given the time at which the test of the offender was conducted at Liverpool Hospital, his evidence, which I note to be entirely consistent with that of Dr Perl, was that the offenders reading would have been slightly higher than 0.10 mg/L. Dr Robertson said that it may have been between 0.11 mg/L and 0.12 mg/L at the time of the collision.
5. Dr Robertson said that the information he had been provided did not allow him to say when the offender had last consumed methylamphetamine and that the level of methylamphetamine in the offender's blood was only slightly higher than historic therapeutic levels. He disagreed with Dr Perl's assertion that someone who had recently used methylamphetamine might commonly have a white substance around their mouth. He suggested that this was not documented as a common sign of methylamphetamine use in any peer-reviewed studies of which he was aware.
6. He agreed when cross-examined by the Crown that driving erratically, at speed and engaging in risk-taking behaviour can be associated with the acute phase of methylamphetamine use. He further agreed that there was a relationship between the concentration of methylamphetamine in a person's blood and the level of their impairment. His evidence was that with a reading of 0.10 mg/L, it was highly unlikely that the methylamphetamine had been consumed 4 to 6 days before the blood sample was taken, the evidence of the offender having been to that effect.
7. During the course of the sentencing hearing today Dr Furst, a forensic psychiatrist retained by the offender to whom I will make some further reference shortly, gave evidence and offered an opinion that the objective findings of the offender's blood chemistry after the collision would tend to exclude intoxication or other residual effects of methylamphetamine as the reason for his erratic driving. What he said both in his oral evidence and in his report dated 19 May 2020 concerning this aspect was not evidence in the trial and was an opinion arrived at by him on the basis of quite limited information. In resolving the issue of impairment I have disregarded the opinion offered by Dr Furst. He is a psychiatrist. The evidence in respect of this issue was properly put before the jury by expert pharmacologists and it is that evidence which informs my resolution of this area of dispute.
8. Having regard to the totality of the evidence and particularly to the immediate observations made by Mr Walker; the erratic, risk laden course of driving undertaken by the offender in the period shortly prior to the crash; the unchallenged expertise of Dr Perl in respect of driver impairment; and her evidence that she had seen thousands of drivers who had exhibited similar symptoms to the offender over her 35 year career, I am satisfied beyond reasonable doubt that the offender was impaired to some extent by his use of methylamphetamine at the time of the crash. That having been said, the evidence does not permit me to be satisfied beyond reasonable doubt as to the extent of that impairment. To find otherwise, as has been submitted by the offender, would not be consistent with the jury verdicts.

The other expert evidence in the trial

1. In addition to the expert crash reconstruction evidence and the pharmacological evidence, there was also expert evidence given in a number of other areas. These concerned the words spoken by the offender to Dalia Olwan, in the Iraqi dialect of the Arabic language, during 2 telephone conversations that were lawfully recorded by authorities while he was in custody; and the authorship of a document that was said on the defence case to be an admission by Ms Olwan that it was her behaviour in engaging the handbrake of the vehicle that caused the crash.
2. It is not necessary for me to make findings concerning either the words spoken by the offender in the telephone calls or the authorship of the alleged "admission document" that became Exhibit 50, prior to arriving at my view as to the objective seriousness of the offending. This is because each of these "events" occurred at times well after the crash. The issues did however assume some significance in the trial and in the areas of dispute with respect to sentence. Accordingly, I propose to comment upon them. Dealing firstly with the words spoken during the recorded telephone conversations. On the Crown case these showed the offender directing Ms Olwan to not be truthful with police and to not ruin him. Expert evidence called in the defence case placed a different interpretation on the words spoken. I am not satisfied beyond reasonable doubt as to what the Crown asserts. The evidence of the experts called by both the Crown and the defence was equally compelling and I am unable to prefer the evidence given by the Crown witness beyond reasonable doubt. I further observe that it was not necessary for the jury to be satisfied beyond reasonable doubt as to the Crown's expert prior to returning verdicts of guilty. There was an abundance of other evidence that supported such verdicts.
3. Turning then to the alleged "admission document". The jury was directed in my summing up that if they accepted firstly that the document was written by Ms Olwan, and secondly that it contained an admission by her of pulling on the handbrake of the motor vehicle shortly before the collision, and thirdly that the admission was truthful, then they must return verdicts of not guilty, because it would follow that it was she who had caused the collision and not the offender. The verdicts make clear that the jury did not regard the document as an admission of wrongdoing by Ms Olwan. If it had done so, then the offender would have been acquitted. To the extent that the offender's counsel submits that I would find as a fact to the contrary, I reject that submission. Such a finding would be entirely inconsistent with the jury's verdict.

Objective seriousness

1. I would firstly observe that there is nothing to distinguish any one of the three offences for which the offender is to be sentenced from the other. That is, the objective seriousness of each count is identical. I have regard to the fact that this collision occurred in the early hours of a Wednesday afternoon on a busy suburban roadway in Western Sydney linking Cabramatta and Mount Pritchard. A relatively short distance of roadway was traversed, however, all of those motorists who were using Cabramatta Road West at the relevant time, along with the offender's passenger Ms Olwan, were at risk from his driving. Cabramatta Road West is a piece of roadway that inevitably, and particularly in the middle of a weekday, has a significant volume of traffic upon it. The degree of speed at which the offender travelled along the roadway, significantly exceeded the applicable speed limit. His driving was both erratic and aggressive. The speed at which he was travelling at the commencement of the tyre marks on the road, being 54 km/h in excess of the speed limit, demonstrates in the offender a preparedness to put his needs above the needs of all other road users to travel safely. While I am unable to conclude as to the degree of the offender's affectation from the use of methylamphetamine, I am nevertheless, for the reasons already indicated, satisfied that his driving was impaired to some extent. I have finally concluded that the objective seriousness of the offending falls at a level at or slightly above the mid-range of objective seriousness for offences of this type.

The guideline judgment, its application and moral culpability

1. In sentencing the offender I will have regard to the 2002 guideline judgment of the Court of Criminal Appeal in R v Whyte (2002) 55 NSWLR 252. In that case, the court identified what was described as a typical case involving an offence of dangerous driving occasioning death or grievous bodily harm contrary to section 52A of the Crimes Act 1900, along with frequently recurring aggravating factors and a general range of sentencing for such offences. Before setting out the guideline, I should make some observations concerning its general application. In considering it I must bear in mind that it is neither a starting point or prescriptive. There may be matters of aggravation that are not specifically referred to in the guideline, and in that event, it is appropriate that such matters be taken into account. The guideline judgment is not to be regarded as some type of judicial straitjacket. That is, it is not to be used so as to impermissibly limit the broad sentencing discretion of the court. The factors identified in Whyte as both frequently occurring and aggravating are not exhaustive. Each case will depend upon its own facts and individual justice requires that the penalty that is imposed reflects both the objective seriousness of the offending, the subjective circumstances of the offender and the need to recognise the purposes of sentencing contained in section 3A of the Crimes (Sentencing Procedure) Act 1999.
2. In Stanyard v R [2013] NSWCCA 134 at [40] Fullerton J with whom Bathurst CJ and Campbell J agreed, put it this way; "The guideline judgment in Jurisic, and the further consideration given to it in Whyte, is not designed to operate in the way contended for by counsel. In so far as the guideline judgment refers to a numerical guideline it is directly referable to a typical case (which this case was not). Guideline judgments are not absolute directions for sentencing judges and not to be applied as if they operate as a minimum sentencing or standard sentencing regime. In accordance with the procedure provided for in section 37A of the Crimes (Sentencing Procedure) Act 1999, guideline judgements are attempts to achieve consistency in sentence with the ultimate goal of achieving equality and justice and to provide an opportunity for this Court to analyse sentencing principles for those offences where some unevenness or uncertainty of sentencing practice has emerged. Whilst guideline judgements are to be regarded as persuasive, they are not prescriptive (see R v Read [2010] NSWCCA 78 at [49])"
3. Very importantly I must bear in mind that the guideline judgment deals with cases of dangerous driving causing death. Here I am dealing with three examples of the aggravated version of that offence, the increased seriousness of that aggravated offence being recognised by the higher maximum sentence of imprisonment prescribed by the Parliament. Despite this obvious distinction and limitation, a consideration of the guideline judgment nonetheless provides considerable assistance. There are two further matters of importance to be noted. Firstly, here there are multiple victims of the offender's criminal conduct all of whom must be recognised in a meaningful way in any sentence imposed; and secondly, this matter proceeded as a fiercely contested 6 week trial, rather than as a plea of guilty as envisaged in the guideline judgment. Of course, the offender is not to be punished more severely because he stood his trial and was found guilty by a jury, rather, any discount that may have been provided to him on account of a plea of guilty is not now available.
4. The guideline judgment provides that a frequently recurring case of an offence under s 52A has the following characteristics: 1. Young offender 2. Of good character with no or limited prior convictions 3. Death or permanent injury to a single person 4. The victim is a stranger 5. No or limited injury to the driver or the driver's intimates 6. Genuine remorse 7. Plea of guilty of limited utilitarian value.
5. Of these characteristics of a "typical case", the offender satisfies i), being born on 1 July 1995 and aged 21 years at the time of the crash; ii) having no prior criminal history, and iv), all of the deceased victims were strangers to him.
6. The guideline judgment then turned to a consideration of aggravating factors for offences under s. 52A and identified the following: 1. Extent and nature of the injuries inflicted 2. Number of people put at risk 3. Degree of speed 4. Degree of intoxication or of substance abuse 5. Erratic or aggressive driving 6. Competitive driving or showing off 7. Length of the journey during which others were exposed to risk 8. Ignoring of warnings 9. Escaping police pursuit 10. Degree of sleep deprivation 11. Failing to stop.
7. Items (iii) to (xi) relate to the moral culpability of an offender.
8. Having identified all of these typical and aggravating factors and having noted the need for the imposition of a custodial sentence other than in cases of momentary inattention or misjudgment, the Court of Criminal Appeal relevantly promulgated a guideline as to the length of such sentences in the following terms: "For offences against s 52A(1) and (3) for the typical case where the offender's moral culpability is high, a full-time custodial head sentence of less than three years (in the case of death)………….. would not generally be appropriate."
9. It is to be borne in mind that this sentencing guideline is to be seen as the lower limit for a "typical case" of this type. The guideline does not provide an upper limit for sentencing in these types of cases but rather a lower limit below which a sentence would not generally be appropriate; R v Greaves [2014] NSWCCA 194 at [45].
10. At [228] of Whyte, Spigelman CJ said as follows: "In the above list of aggravating factors, items (iii)-(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. One way of expressing such a conclusion is to ask whether the combination of circumstances are such that it can be said that the offender has abandoned responsibility for his or her own conduct. That is not the only way of expressing such a conclusion."
11. While the guideline contemplates death or permanent injury to a single person, a greater number of victims, as is the case here, will require an appropriate increment in the sentence to be imposed. In R v Price [2004] NSWCCA 186 at [38], Simpson and Howie JJ observed; "The fact that more than one person was killed as a result of the driving is such a significant attribute of the criminality arising from the offences charged against the respondent, that it had to result in a significant increase in the sentence that would have been appropriate in the typical case where only one person was killed".
12. Multiple victims will also require that there be a degree of accumulation between counts so as to ensure the vindication of the death or serious bodily injury occasioned to those individual victims. Plainly, the consequences of an offender's conduct are more serious if there are multiple victims. As Lee CJ at CL remarked in R v Wilkins (1998) 38 A Crim R 445 (at 449), to proceed otherwise "would make the law a laughing stock" and have the effect of rendering the death of one or more of the victims as little more than a meaningless statistic. Further, it is necessary for an increment in sentence to reflect the fact that these offences are aggravated versions of dangerous driving causing death and each attract a higher maximum penalty than an offence under s 52A (1) or (3).
13. Of the aggravating factors identified in the guideline judgment, I note that the extent and nature of the injuries inflicted was extreme. That is, three innocent members of the community died. The number of people put at risk was high. All of the persons who were using Cabramatta Road West at the relevant time were at risk from the offenders driving as was Ms Olwan. As I have earlier noted, the degree of speed significantly exceeded the applicable speed limit, his driving was both erratic and aggressive and his capacity to drive was impaired to some extent at least by his drug use. The length of the journey was relatively modest. The unchallenged evidence was that Ms Olwan spoke to the offender during the course of his driving on this day, telling him that it was dangerous and urging him not to speed, noting that they were already late for their appointment. The fact that he ignored her warnings to slow down is yet another factor of aggravation, demonstrating as it does a serious disregard for public safety. The warnings he was given mean that the offender must have been aware of the risks associated with his conduct. It is necessary for me to take this awareness into account in assessing his moral culpability; Gillett v R [2006] NSWCCA 37 per McClellan CJ at CL at [47].
14. It is also necessary for me, in addition to my earlier findings in respect of objective seriousness, to assess and make a clear finding as to the offender's moral culpability. Necessarily, there will be some overlap between those two considerations. In making this assessment, I must have regard to all of the objective circumstances and the extent of the danger posed. In Gonzalez v R [2006] NSWCCA 4 at [13] Howie J observed: "There is a high degree of moral culpability displayed when there is present to a material degree one or more of the aggravating factors numbered (iii) to (ix) set out in Whyte. However, there may be other factors that reflect on the degree of moral culpability involved in a particular case and the factors identified in Whyte can vary in intensity: R v Tzanis [2005] NSWCCA 274 at [25]."
15. As will be clear from my earlier remarks, I am satisfied given the speed at which he was travelling, the fact that his driving was impaired by the use of methylamphetamine, the erratic nature of his driving, the time and place of the collision, the likelihood of a significant volume of traffic being present on the roadway, and his ignoring of warnings from Ms Olwan, that the offender has demonstrated an abandonment of responsibility as a road user as he drove along Cabramatta Road West following the intersection of Meadows Road. This abandonment of responsibility is relevant to my assessment of the overall objective gravity of the offending; R v Rosenthal [2008] NSWCCA 149 at [16].I have finally concluded that the offender's moral culpability for his offending behaviour was high. In reaching this conclusion, I have had regard to the comments of Basten JA in R v Shashati [2018] NSWCCA 167 at [24] that "evidence relevant to the moral culpability of the offender is not to be narrowly confined".

The offender's subjective case

1. As the guideline judgment itself notes at [233], while it focuses attention on the objective circumstances of the offence, the subjective circumstances of the offender must also be considered. Tendered in the offender's case is the report of Dr Richard Furst forensic psychiatrist dated 19 May 2020, the psychologist report of Ms Jessica Cortes dated 3 March 2020 and various medical records in respect of him. I have also had the benefit of a Sentencing Assessment Report dated 21 February 2020. I also received a letter of apology from him and a number of character references the content of which have been taken into account.
2. The offender was born in Basra in southern Iraq on 1 July 1995. He is presently aged 24 years and is single. He was 21 years at the time of the offending. He is the youngest of 6 children. Two of his brothers and one sister continue to live in Iraq. He has one sister who lives in Sydney and another in New Zealand. His mother resides in Turkey.
3. He received no formal education in Iraq. As a child his time was spent helping his father in the family coffee shop. The coffee shop also sold alcohol and this attracted the adverse attention of the conservative Shiite militia. He told Dr Furst that he had been captured by militia and tortured in 2011 such that he feared for his life. At that time he was aged 16. In 2012 he witnessed his father being murdered by extremists. I accept that such an experience was extremely traumatic and would have had a major impact on his life. To witness one's father being murdered is a barbaric and dreadful event to have endured, and the significance of it in the life of a young person is difficult to comprehend. He is reported to have frequent recurring images of this life changing occurrence. Some 4 months after his father's murder he fled Iraq, initially to Malaysia and then to Indonesia. He came to Australia as a refugee by boat in 2013 after a number of attempts. He was detained on Christmas Island for some years and entered mainland Australia in 2015 after he was granted a bridging visa. He has had no further education since being in Australia, nor has he engaged in any employment. He has no prior history of offending and this is a factor that works in his favour. He has a relatively minor traffic record in both New South Wales and Queensland that does not impact in any meaningful way upon this sentencing exercise. Prior to his being bail refused on these matters he had no prior experience of custody.
4. As at January 2017 he was in a relationship with Dalia Olwan. That relationship was clearly problematic. He told the author of the Sentencing Assessment Report that he commenced to use methylamphetamine only two months prior to the collision; although his evidence in the trial was that he had used it for longer than that. He further told the author "that prior to the collision he and his partner had engaged in a heated verbal exchange, resulting in his lapse of judgment". His description of the collision as a "lapse of judgment" appears to be a departure by him, from the case advanced at trial, which was that the collision was not his fault and had been caused by Dalia Olwan. That having been observed, the submissions made today on his behalf make clear that while sorry for the deaths of the victims, he continues to deny responsibility for his driving conduct.
5. The Sentencing Assessment Report also indicates that he feels some remorse for the victims and has insight into his offending. His letter of apology expresses similar remorse. My assessment as to the genuineness of the remorse and insight that he now expresses is guarded given the way in which the trial was conducted, no doubt in accordance with his specific instructions, and his ongoing failure to accept responsibility. Section 21A (3) of the Crimes (Sentencing Procedure) Act 1999 precludes me, in the circumstances, from taking into account the offender's expressed remorse.
6. The offender was injured in the collision and those injuries are a factor to be taken into account in the overall instinctive synthesis and my assessment as to what is ultimately a just punishment. I note that the offender was trapped in the vehicle following the collision. He was treated at the scene by ambulance officers and was in significant pain and distress. He was intubated on arrival at the Emergency Department of Liverpool Hospital. He sustained a fracture to his left pelvis and a fracture to his right leg. He was required to undergo surgery and a long intramedullary nail and screws were inserted in his right tibia. He has been prescribed Tramadol for back pain while in custody however this was discontinued towards the end of 2019. The Justice Health records that were tendered indicate that he has, during the period of his incarceration, experienced some ongoing difficulties with his physical and mental health. There is however no evidence that he presently suffers from any residual physical disabilities as a consequence of the injuries he sustained. Nevertheless, I accept that the injuries he sustained in the accident are in the nature of extra curial punishment and I propose to take them into account.
7. The report of Dr Furst, a highly regarded forensic psychiatrist who is well known to these courts, indicates that the offender was anxious and depressed in mood at the time of consultation on 16 April 2020, but that he was not taking any psychotropic medication. His report notes a history of Hepatitis C and related liver damage. He diagnoses the offender as suffering from post-traumatic stress disorder and substance use disorder - in remission in a controlled environment. He is of the view that the offender was traumatised by what he witnessed in Iraq as a child including the murder of his father, his journey to Australia and the trauma of the collision in January 2017. I accept what Dr Furst says in that regard. He further opines that his incarceration since that time has maintained and exacerbated his post-traumatic stress disorder. I have no reason to doubt that what the doctor says is accurate. While he observes that there is no clear or direct causal relationship between his post-traumatic stress disorder and his offending he does note that his PTSD probably contributed to the substance use disorder from which the offender was suffering at the time of the collision. Dr Furst also opines that given what he describes as the offenders "significant mental health problems in the form of PTSD and related symptoms of anxiety and depression" that custody is likely to weigh more heavily upon him and that there is a significant risk that his symptoms will deteriorate in a custodial environment. I accept what Dr Furst says.
8. Ms Jessica Cortes gave evidence. Her psychologist report was tendered. It indicated that the offender meets the criteria for complex post-traumatic stress disorder and concludes that at the time of the collision, the offender was significantly and adversely affected by his mental health conditions. She opines that these conditions significantly contributed to his offending behaviour. This conclusion is at odds with that reached by the forensic psychiatrist Dr Furst and to the extent necessary, I prefer and rely upon his opinion that there is no clear or direct causal relationship between his mental health condition and his offending. I otherwise accept her diagnosis of the offender which is broadly consistent with that of Dr Furst. I am not satisfied in the circumstances of this matter that the principles in Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194 are engaged as I am not of the view that the offender's mental health contributed to the commission of the offence in a material way such as to reduce his moral culpability. That having been said, his overall mental health and the conditions from which he suffers are an important part of his subjective case that I will take into account.
9. Mr Scragg has submitted that the offender has experienced a significantly disadvantaged upbringing characterised by deprivation and trauma such as would attract consideration of the principles in Bugmy v The Queen (2013) 249 CLR 571. I accept this submission. He is effectively without education, was born in a war-ravaged nation with the entire trauma which that entails, and experienced the horror of his father's death in the way that I have earlier noted. The effect of such trauma does not diminish over time and should be given full weight in this sentencing exercise.
10. In respect of his prospects of rehabilitation I accept the opinion of Dr Furst that these are best described as moderate. This is particularly when one has regard to the significant disadvantage that he has been subjected to during his life, and the likelihood of his remaining severely impaired by his post-traumatic stress disorder.
11. According to the Sentencing Assessment Report the offender is of interest to immigration authorities upon his release from custody. I take that to mean that he is likely to be deported from Australia and returned to Iraq. This consequence to the offender is not something to which I can have regard.

Impact on the victim's family

1. A court is always entitled to have regard to the effect that criminal behaviour has upon the victim of that behaviour. This common law rule is reflected in the terms of section 3A (g) of the Crimes (Sentencing Procedure) Act 1999 which provides that one of the purposes of sentencing is "to recognise the harm done to the victim of the crime and the community." In doing so, I have had regard to the victim impact statements prepared in this matter. Both of the statements detail the profound loss that has been felt by the children and extended family of Mr Ngo and Mrs Nguyen. They are both moving and powerful. In my view, the loss described by each of the authors is of a type that one would expect for offences of this nature. Although I have not received a victim impact statement from any member of the family of Ms Thang, I accept that they would also have suffered as a consequence of the offender's criminal behaviour. I will take these matters into account in my determination of the sentence to be imposed.

Special circumstances

1. I have been asked to make a finding of special circumstances. Such a finding is a discretionary finding of fact that permits an adjustment downwards of the non-parole period. It does not authorise an increase in the term of the sentence. The primary consideration should be the length of the minimum period of actual incarceration that is required to encompass the full range of issues relevant on sentence. Notwithstanding the existence of special circumstances, a court is not permitted to reduce the non-parole period below what is necessary to punish the offender and act as a deterrent to the offender and others. The circumstances must be sufficiently special to warrant a variation to the statutory ratio. The concept of special circumstances goes to the question of rehabilitation of the offender, that being one of the purposes of sentencing.
2. Mr Scragg submits that a finding of special circumstances should be made having regard to the combination of: the necessary accumulation in the sentences that are to be imposed, the offender's age - on any view he is still a young man, his mental illness, his substance abuse issues, the fact that this is his first time in custody and his need for ongoing treatment and assistance on his release from custody to ensure that he is best placed to readjust to community life. In my assessment, this is a matter that warrants the making of a finding of special circumstances particularly when one considers the totality and combined effect of the features relied upon by Mr Scragg. The fact that the offender is likely to be deported upon his release from custody should not deprive him of a finding of special circumstances if one is otherwise appropriate.

Comparable cases

1. Both the Crown Prosecutor and Mr Scragg referred me to earlier decisions which they submitted may be of assistance. While I do not propose to provide a summary of the decisions to which the parties referred me I can indicate that all of them have been considered. Some of those cases were more helpful than others. In addition, I have had regard to a number of more recent cases to which I was not referred by either party including R v Shashati (supra) and Conte v R [2018] NSWCCA 209. In both cases, the Court of Criminal Appeal provides a useful summary of comparable earlier decisions. A consideration of earlier sentences that have been imposed for like offending is important because it assists the court in achieving consistency in the imposition of sentence. Of course, consistency is not synonymous with numerical equivalence but rather with the application of relevant legal principles. While all of the cases to which I have had regard provided guidance and something of a yardstick as to what is the appropriate end result in this case, it is to be emphasised that the sentence to be finally imposed upon the offender must be individual both to his offending and his subjective case: Director of Public Prosecutions (Cth) v De La Rosa (supra) per Simpson J (as Her Honour then was) at [303]- [305]; Gavin v R [2013] NSWCCA 99 at [41].

Totality

1. In undertaking this sentencing task I am required to determine the sentence for each individual count of which the offender was found guilty before considering questions of accumulation, concurrence and totality. As I have earlier noted, I am unable to distinguish between any of the three counts and they all warrant imposition of the same sentence prior to a consideration of these issues. The overall sentence imposed must in the final analysis reflect the totality of the offender's criminal behaviour. Although the offending related to one single course of driving, the fact that three people lost their lives means, for the reasons to which I have earlier referred, that the sentences imposed must contain some degree of accumulation. The question becomes, what is the appropriate total period for which the offender is to be detained? In resolving this question I must seek to impose a sentence that is neither too harsh nor too lenient and reflects overall, a proper period of incarceration having regard to the total criminality of the offender and his subjective case.
2. In Osman v R [2020] NSWCCA 78 the Court of Criminal Appeal, per Lonergan J at [53] with Johnson and Price JJ agreeing, set out the relevant principles in respect of totality as follows: 1. Whenever a Court sentences an offender for multiple offences, including when there are different victims, or sentences an offender who is already serving a sentence after conviction for other offences, it is necessary for the judge to ensure that the aggregation of all of the sentences is a "just and appropriate measure of the total criminality involved". 2. The need to maintain an appropriate relationship between the totality of the criminality involved in a series of offences and the totality of the sentences to be imposed for those offences arises for at least two reasons; 1. The severity of a sentence is not simply the product of a linear relationship. That is to say severity may increase at a greater rate than an increase in the length of a sentence. 2. The second matter that is considered under the totality principle is the proposition that an extremely long total sentence may be "crushing" upon the offender in the sense that it will induce a feeling of hopelessness and destroy any expectation of a useful life after release. This effect both increases the severity of the sentence to be served and also destroys such prospects as there may be of rehabilitation and reform. Of course, in many cases of multiple offending, the offender may not be entitled to the element of mercy entailed in adopting such a constraint. 1. A sentencing court must, however, take care when applying the totality principle. Public confidence in the administration of justice requires the Court to avoid any suggestion that what is in effect being offered is some kind of a discount for multiple offending.
3. In giving effect to these principles it is my view that this matter lends itself well to the imposition of an aggregate sentence in accordance with section 53A of the Crimes (Sentencing Procedure) Act 1999, particularly where the criminal behaviour to be sanctioned arose out of a single course of abhorrent conduct.

Conclusion

1. The sentence imposed must in the final analysis have regard to the purposes of sentencing set out in section 3A of the Crimes (Sentencing Procedure) Act 1999. They are: 1. to ensure that the offender is adequately punished for the offence, 2. to prevent crime by deterring the offender and others from committing similar offences, 3. to protect the community from the offender, 4. to promote the rehabilitation of the offender, 5. to make the offender accountable for his actions, 6. to denounce the conduct of the offender, 7. to recognise the harm done to the victim of the crime and the community.
2. In framing the sentence to be imposed, I have sought, doing the best I can, to balance all of the relevant purposes. Given that I believe an aggregate sentence is appropriate, it is necessary for me in compliance with the statutory scheme, to note the indicative sentences that would have been imposed had I not determined to finalise the matter in this way. As I earlier observed, there is nothing to distinguish one offence from the other and I note indicative sentences of 5 years and 6 months imprisonment for each count.
3. I have finally concluded that an appropriate aggregate term of imprisonment is one comprising a total term of 12 years and a non-parole period of 8 years.

Orders

1. The orders I make in this matter are as follows: 1. The offender is convicted in respect of counts 1, 3 and 5. 2. Pursuant to section 53A of the Crimes (Sentencing Procedure) Act 1999, he is sentenced to an aggregate term of imprisonment comprising a total term of 12 years and a non-parole period of 8 years commencing 21 January 2017. 3. He will be eligible for release on parole on 20 January 2025. 4. His sentence will expire on 20 January 2029. 5. He will be disqualified from holding or obtaining a driver license for the automatic period prescribed by the Road Transport legislation.

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