R v Bortic

R v Blanco (1999) 106 A Crim R 303 R v Carter [2003] NSWCCA 243 R v Cramp [2004] NSWCCA 264 R v Elfar [2003] NSWCCA 358 R v Fahda [2013] NSWCCA 86 R v Fidow [2004] NSWCCA 172 R v Hill [2020] NSWCCA 197 R v Janceski [2005] NSWCCA 288; (2005) 44 MVR 328 R v Jurisic (1998) 45 NSWLR 209; (1998) 29 MVR 49; (1998) 101 A Crim R 259 R v Lulham (2016) 262 A Crim R 287; [2016] NSWCCA 287 R v McIntyre (1988) 8 MVR 371 R v Shashati (2018) 85 MVR 194; [2018] NSWCCA 167 R v Simpson (2001) 53 NSWLR 74; [2001] NSWCCA 534 R v Smith, Jarad (2016) 75 MVR 367; [2016] NSWCCA 75 R v Tuuta [2014] NSWCCA 40 R v Wright (2013) 63 MVR 250; (2013) 229 A Crim R 245; [2013] NSWCCA 82 Regina v Whyte (2002) 55 NSWLR 252; (2002) 37 MVR 1; [2002] NSWCCA 343 Sabra v R [2015] NSWCCA 38 Thach v R [2018] NSWCCA 252 Wong v The Queen; Leung v The Queen (2001) 207 CLR 584; [2001] HCA 64 Category: Principal judgment Parties: Regina - Applicant Crown Adam Anthony Bortic - Respondent Representation: Counsel: M A Kumar - Applicant Crown A Boe/D Beaufils - Respondent

Solicitors: Solicitor for Public Prosecutions - Applicant Crown Hearn Legal - Respondent File Number(s): 2018/125787 Decision under appeal Court or tribunal: District Court of NSW Jurisdiction: Criminal Date of Decision: 07 October 2020 Before: Ellis DCJ File Number(s): 2018/125787

Offences and sentence The Director of Public Prosecutions appeals, pursuant to s 5D of the Criminal Appeal Act 1912 (NSW) (Criminal Appeal Act) against the sentence imposed upon the respondent by Ellis DCJ for two counts of aggravated dangerous driving occasioning death contrary to s 52A(2) of the Crimes Act 1900 (NSW) (Crimes Act) and one count of causing bodily harm by misconduct in charge of a motor vehicle contrary to s 53 of the Crimes Act.

1. The respondent was driving a car containing three passengers after a night at a tavern. The respondent's car failed to negotiate a sweeping right-hand bend and collided with a tree. The respondent had a blood alcohol reading of at least 0.183 (high range) and was travelling at a speed in excess of 45 kilometres over the speed limit, which was 50 kilometres per hour.
2. On 7 October 2020 in the District Court at Newcastle, Ellis DCJ sentenced the respondent to an aggregate non-parole period of 2 years and 9 months (to expire on 6 July 2023) and an aggregate head sentence of 6 years (to expire on 6 October 2026). The respondent's non-parole period represents 46 per cent of his head sentence. The respondent received a 25 per cent discount for the utilitarian value of his pleas of guilty. The maximum penalty for the offence of aggravated dangerous driving occasioning death is 14 years imprisonment. The maximum penalty for an offence under s 53 is 2 years imprisonment.
3. There was a related offence on a s 166 certificate of driving a motor vehicle with an illicit drug present in his blood contrary to s 111(1)(a) of the Road Transport Act 2013 (NSW) which his Honour dealt with under s 10A of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the Sentencing Act), convicting the respondent but imposing no other penalty. His Honour disqualified the respondent from driving for four years.
4. The Director's Notice of Appeal was filed and served on 10 December 2020.
5. A table summarising information relevant to the charges, the subject of the aggregate sentence, including the maximum penalties and indicative sentences (before and after discounts) is set out below. None of the charges attracts a standard non-parole period. Count Section & Offence Max penalty Indicative sentence Pre-Discount (25%) Aggregate sentence 6 years count 1 Aggravated dangerous driving occasioning death - s52A(2) Crimes Act NPP 2 years and 9 months (seq 5) Deceased: Jamie Ward 14 years 4 years, 2 months 5 ½ years Ratio 46%/54% (Statutory ratio 75%/25%) count 2 (seq 6) Aggravated dangerous driving occasioning death - s52A(2) Crimes Act 14 years 4 years, 2 months 5 ½ years Deceased: Lauri Juerman count 3 (ex-officio) Cause bodily harm by misconduct in charge of motor vehicle - s53 Crimes Act 2 years 9 months 12 months Victim: Reece Ashe

GROUNDS OF APPEAL

1. By Amended Notice of Appeal, the Director appeals on the following grounds:

Ground 1 - The sentencing judge erred in assessing the objective seriousness of the offending as being at the mid-range of objective seriousness.

Ground 2 - The aggregate sentence pronounced was manifestly inadequate.

Ground 3 - The non-parole period of the aggregate sentence pronounced was manifestly inadequate.

Factual background

1. The respondent was sentenced on the basis of a statement of agreed facts. The offences occurred at Salamander Bay, New South Wales on 13 April 2018, when the respondent was aged 31. The respondent worked in the building industry and principally resided in Queensland, where he held a driver's licence. In April 2018, he was working at a building site in Salamander Bay and residing with fellow workers in a town house at the Horizons Golf Club.
2. During the afternoon and evening of Thursday 12 April 2018, the respondent consumed an unknown quantity of alcohol at a private residence in Salamander Bay before travelling to the Salamander Bay Tavern with several work colleagues. CCTV depicted the respondent arriving at the tavern at around 10:30pm and leaving at around 12:37am (on 13 April 2018). While present at the tavern, the respondent appeared to consume two or three alcoholic drinks. Also present at the tavern were five of the respondent's work colleagues - Jamie Ward, Lauri Juerman, Reece Ashe, Matthew Wiperi and Gordon McRandle.
3. The respondent drove from the tavern in his vehicle, a white Mazda 3 hatchback, with Mr Ward seated in the front passenger seat, Mr Ashe in the rear onside passenger seat, and Mr Juerman in the rear on the driver's side. All of the occupants were affected by alcohol.
4. Mr Wiperi was driving a second vehicle with Mr McRandle sitting in the front passenger seat. Mr McRandle was significantly affected by alcohol. Mr Wiperi was also affected by alcohol.
5. The agreed facts indicate that the respondent was either intending to drive to his accommodation approximately two kilometres from the tavern, or to Mr Wiperi's residence in Soldiers Point, approximately five and a half kilometres away.
6. When the two vehicles left the tavern, the respondent was first to leave. By the time Mr Wiperi had pulled out, another vehicle was between Mr Wiperi's vehicle and the respondent's vehicle. Almost immediately after both vehicles left the tavern, Messrs Wiperi and McRandle observed that the respondent was "driving fast".
7. The vehicle between Mr Wiperi and the respondent turned off the road. Mr Wiperi caught up to the respondent, who by then had driven past the turn off to his accommodation. When Mr Wiperi began to catch up with the respondent's vehicle, he flashed his lights and may have also activated his horn. The respondent was observed by Messrs Wiperi and McRandle to "accelerate away". In his recorded statement to police, Mr Wiperi described the respondent's driving at this point in the following terms: 1. "…by that point they were already meant to have turned off…; 2. he just went VOOM (verbal sound) and started, like, going real fast from that point there…; 3. he went through the roundabout pretty fast…; 4. the left-hand bend before the right-hand where he crashed, he, he was moving fast there…; 5. …Gordy's like, "This is bad." And I'm like, "Fuck, it's bad," flashing me lights and, like beeping me horn. And, and then, like, when we come around the bend there, that's when it was just like VOOM VOOM VOOM (verbal sound) and he was, like, going real fast and, and then we seen him, like, slide and, and hit the gutter…" (Agreed fact 12)

Proceedings on sentence

1. The respondent pleaded guilty to the three charges in the Local Court. The respondent sought an adjournment in the District Court on 2 May 2019, (due to negotiations between the parties) on 13 June 2019 (respondent's surgery) and on 11 December 2019 (the need for expert evidence).
2. On 27 March 2020, the matter was listed for sentence. The Crown was not ready to proceed due to agreement not having been reached as to the facts. The sentence hearing was adjourned to 31 March 2020 at which time his Honour told the parties that the respondent would serve a term of imprisonment and indicated that due to the pandemic, it would be better not to proceed at that time but rather to wait six months.
3. The sentence proceedings took place on 7 October 2020. A victim impact statement by the sister of Mr Juerman was tendered (exhibit D). On sentence, the respondent tendered an expert report by a forensic psychologist, Megan Godbee, (exhibit 1), a letter from his treating psychologist, Karen Witzerman, (exhibit 2), medical documents relating to his hospital admission following the collision and subsequent treatment (exhibits 3-5), affidavits by his mother and his previous partner's younger sister (exhibits 6 and 7), a number of character references (exhibits 8 to 17), a letter from his employer (exhibit 18) and an affidavit from his partner (exhibit 19).
4. An affidavit by the respondent himself was tendered (exhibit 20). In the affidavit he accepted full responsibility, including acknowledging the impact of his actions on the families of the deceased and the injured victim. The respondent did not give or call oral evidence on sentence. The respondent relied on written submissions (exhibits 21 and 22). The Crown accepted that a 25 per cent discount for the plea of guilty was appropriate.
5. At the hearing, his Honour told the parties that he had in mind an aggregate sentence of five years with a non-parole period of two and a half years. The Crown submitted that such a sentence ran the risk of falling into appealable error. The Crown relied on R v Shashati (2018) 85 MVR 194; [2018] NSWCCA 167 and R v Smith, Jarad (2016) 75 MVR 367; [2016] NSWCCA 75. The Crown accepted that the "current circumstances … would result in some limited reduction in the term of the respondent to be served, to recognise the slightly more onerous conditions of custody". The Crown submitted that a head sentence of five years would involve a "significant departure from the sort of sentences that have been imposed in cases with some factual equivalence". His Honour responded by saying "I was just going to play around with all those figures". The respondent's counsel submitted that COVID-19 "does permit a sentence of the kind that your Honour has foreshadowed".

Subjective circumstances

1. The respondent was born in December 1986. He was aged 31 at the time of the offences and 33 at the time of sentence. He is currently aged 34.
2. The respondent had no criminal history or traffic record in NSW. In Queensland he had two "non-convictions" (2010 and 2013) for offences of assault or obstruct a police officer, possessing dangerous drugs and possessing utensils or pipes that had been used with drugs. His Queensland traffic record included a number of speeding matters.
3. The respondent told Ms Godbee, forensic psychologist, that he grew up in Brisbane as the older of two children. He described having a positive relationship with his parents, who had remained married throughout his life. He denied any experiences of abuse or other trauma during his early life and reported feeling safe and loved in the home environment. He described his childhood as that of a typical suburban family, without anything bad occurring. He described being academically gifted in school but became bored in class. After the Year 12 exams, he completed an apprenticeship and worked as a carpenter.
4. The respondent reported a pattern of binge drinking a few times per month during his teens and early 20's. He said that he had engaged in occasional binge drinking at about the time of the offending. He reported first consuming cannabis in his late teens, and that he had gone through periods when he had used cannabis every few weeks and when he had not used it for months at a time. He participated in a two-hour drug diversion counselling session in his teens after being caught with cannabis by police.
5. Ms Godbee noted that as a result of the collision, the respondent was experiencing significant depressive symptoms. She opined that the respondent was suffering from Post Traumatic Stress Disorder (PTSD). She opined that the respondent did not present as inherently antisocial, noting that he had a history of stable relationships and employment and was supported by his immediate and extended family.

Relevant findings by sentencing judge

1. In his reasons for sentence, the sentencing judge referred to the two statutory aggravating circumstances in the case (ss 52A(7)(a) and (b)) and found that there may have been some aspect of "showing off" when he accelerated away from the following vehicle. The two statutory circumstances of aggravation were the presence of the prescribed concentration of alcohol and driving at a speed which exceeded the relevant limit by more than 45km/h.
2. The sentencing judge found counts 1 and 2 to be mid-range offences in terms of objective seriousness. The sentencing judge noted a need for some accumulation between the two counts, given that the respondent's driving culminated in the death of two persons. His Honour found that "by driving at this speed while under this level of intoxication" there was "an abandonment of moral responsibility" (Sentence judgment 6).
3. The sentencing judge referred to the respondent's lack of relevant criminal history and his traffic record. The sentencing judge regarded the respondent as a person of good character. The sentencing judge took into account the purposes of sentencing expressed in 3A of the Sentencing Act and noted the particular relevance of general deterrence for offences of this type - stating: "... It is important that the message can be sent out to the community that when young men binge-drink, they should not get in a motor vehicle and drive because the consequence of doing so when death is caused is likely to be a significant term of imprisonment for individuals who would otherwise never be involved with the criminal law" (Sentence judgment 6-7).
4. The sentencing judge took into account the victim impact statement provided by the sister of Mr Juerman. His Honour found special circumstances on three bases: 1. the respondent's mental health issues (which his Honour found were not causally connected to the offending); 2. delay; and 3. COVID-19 restrictions in custody (which his Honour found would make the respondent's time in custody harsher while they were in place).
5. The sentencing judge noted that the respondent had repeatedly expressed remorse. His Honour assessed the respondent as having excellent prospects of rehabilitation and that he would be unlikely to re-offend. The sentencing judge noted that this would be the respondent's first time in custody.

Principles relating to Crown appeals

1. There was considerable unanimity between the parties as to such principles.
2. The Crown accepted that the primary purpose of a Crown appeal against sentence was to lay down principles of law for the governance and guidance of courts having the duty of sentencing convicted persons.
3. The Crown submitted that in the exercise of its jurisdiction under s 5D of the Criminal Appeal Act, the Court retained a residual discretion to decline to interfere with a sentence even though the sentence was erroneously lenient (Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 at [1], [26] (Green v The Queen; Quinn v The Queen); Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 at [24] (Bugmy v The Queen). The applicant submitted that the Crown must negate any reason why the residual discretion of this Court not to interfere should be exercised.
4. The Crown accepted that a Crown sentence appeal based on a claim of manifest inadequacy of sentence required the Crown to establish that the sentence imposed was unreasonable or plainly unjust in a sentencing environment where there is no single "correct" sentence, and judges at first instance are to be allowed as much flexibility in sentencing as is consonant with the application of proper principle and consistency of approach: Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at 325 (Dinsdale v The Queen); Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25] (Markarian v The Queen); Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at 538 [58]. Manifest inadequacy is a conclusion and does not depend on the establishment of specific error: Dinsdale v The Queen at [6].
5. On that last issue, Gleeson CJ and Hayne J said in Dinsdale v The Queen: "5 ... Thus, as was accepted in argument in this Court, the appeal to the Court of Criminal Appeal was based upon an allegation of manifest inadequacy rather than specific error. That is, the error assigned was of the third kind mentioned in House v The King. Only if this error was demonstrated was it open to the Court of Criminal Appeal to "pass such other sentence warranted in law ... in substitution" for the sentence passed at trial. 6 Manifest inadequacy of sentence, like manifest excess, is a conclusion. A sentence is, or is not, unreasonable or plainly unjust; inadequacy or excess is, or is not, plainly apparent. It is a conclusion which does not depend upon attribution of identified specific error in the reasoning of the sentencing judge and which frequently does not admit of amplification except by stating the respect in which the sentence is inadequate or excessive. It may be inadequate or excessive because the wrong type of sentence has been imposed (for example, custodial rather than non-custodial) or because the sentence imposed is manifestly too long or too short. But to identify the type of error amounts to no more than a statement of the conclusion that has been reached. It is not a statement of reasons for arriving at the conclusion. A Court of Criminal Appeal is not obliged to employ any particular verbal formula so long as the substance of its conclusions and its reasons is made plain. The degree of elaboration that is appropriate or possible will vary from case to case. ... 9 In this case, four facts must be borne in mind. First, the only issue agitated at the hearing of the appeal to the Court of Criminal Appeal was whether the sentence imposed by the trial judge was manifestly inadequate. Secondly, the appeal was allowed. Thirdly, the Court of Criminal Appeal resentenced the appellant to significantly more severe punishment than the trial judge had imposed. Lastly, the ground of appeal which was agitated before the Court of Criminal Appeal (manifest inadequacy) was a ground which did not require, or even admit of, expansive elaboration of a process of reasoning which leads to its acceptance or rejection. ..."

The Crown's submissions

1. The Crown submitted that the present case provided an example of a serious aggravated dangerous driving causing death offence in that two of the four aggravating factors allowed for under the Crimes Act were present. These factors were that the respondent was driving under the influence of intoxicating liquor (high range) and that he was travelling "in excess of 45km/h over the posted speed limited" which in this case was 50 km/h. While the agreed facts did not disclose the exact speed at which the respondent was travelling, nor his precise level of intoxication, it was clear from the agreed facts considered as a whole, that the respondent was travelling at a grossly irresponsible speed, well over the posted speed limit, while significantly affected by the consumption of alcohol. The Crown submitted that his moral culpability was high in that he had three passengers in his vehicle at the time.
2. The Crown submitted that consistent with the limiting purpose of Crown appeals under s 5D, this appeal was brought to provide guidance when sentencing serious offenders. The Crown submitted that in serious cases of this kind, the sentencing court should set an appropriate head sentence and non-parole which properly reflected the overall criminality involved in the offending.
3. The Crown submitted that the appeal was also brought for the purpose of engaging the discretion of this Court to intervene and set aside the sentence imposed on the respondent because it was "plainly unjust" and was far below the range of sentences that could properly be imposed for the offence consistent with appropriate sentencing standards. The Crown submitted that the sentence under consideration was so manifestly inadequate as to be likely to undermine public confidence in the proper administration of justice (Dinsdale v The Queen at [61]).

Ground 1 - The sentencing judge erred in assessing the objective seriousness of the offending at the mid-range of objective seriousness.

1. The Crown submitted that under this ground his Honour had erred in finding that the objective seriousness of the respondent's offending fell within the mid-range. In his reasons on sentence, the sentencing judge relevantly said: "I have taken into account the guideline judgments of the Court of Criminal Appeal in Whyte and Jurisic. I note that there are many potentially aggravating factors that are set out within the guideline judgment. Essentially here, the aggravating factor which is a part of the charge is the alcohol level, being 0.183. An aggravating factor in terms of the actual driving is the speed at which he was driving being in excess of 45 kilometres over the speed limit but many of the other factors set out within the guideline judgment do not exist. It was a short distance to be travelled but there were in fact three people other than the offender himself who were put at risk. There may be some aspect of showing-off in terms of accelerating away from the following vehicle, but there is no suggestion for instance that he was escaping police or ignoring particular warnings. In this case I must assess the manner of the driving in order to determine where on the continuum of offending against this particular provision this particular matter falls. In my view this is a mid-range offence, in terms of criminality, against the aggravated dangerous driving occasioning death provisions of s 52A subs (2). I note that this particular offence is a consequence driven offence and therefore there needs to be some accumulation as between the two counts given that the driving culminated in the death of two individuals. By driving at this speed while under this level of intoxication, there was in my view an abandonment of moral responsibility." (Sentence judgment 5.3-6.2)
2. The Crown submitted that the assessment of and attribution of due weight to the objective gravity of an offence is fundamental to the sentencing process (Markarian v The Queen; Khoury v R (2011) 209 A Crim R 509; [2011] NSWCCA 118 at [71]). The Crown submitted that in accordance with the guideline judgment in Regina v Whyte (2002) 55 NSWLR 252; (2002) 37 MVR 1; [2002] NSWCCA 343 (Regina v Whyte) in driving cases the offender's moral culpability is directly relevant to the determination of the appropriate sentence.

Respondent's submissions

1. The respondent submitted that Ground of Appeal 1 did not give rise to a House v The King (1936) 55 CLR 499; [1936] HCA 40 error and in any event, no error was demonstrated. The respondent submitted that the Crown had not demonstrated why the residual discretion ought not be exercised in the respondent's favour.
2. The respondent submitted that questions of weight were at the heart of the exercise of judicial discretion so that a court reviewing an exercise of discretion would be slow to conclude that the decision maker had failed to give proper weight to a particular matter and a mere preference for a different result will not be sufficient. The respondent submitted that a challenge to the exercise of discretion in sentencing was not an exercise in reviewing the merits of the sentence but was an inquiry into whether there has been error.
3. The respondent submitted that in order to succeed on a ground of appeal asserting that an aggregate sentence (or the non-parole period) is manifestly inadequate, the Crown must establish that the judge imposed a sentence that was below the range of sentences that could be justly imposed for the respondent's offending consistent with sentencing standards. The respondent submitted that sentencing involved a discretionary judgment and there was no single correct sentence for an offender and an offence.
4. The respondent submitted that the factors relevant to any particular sentence will almost certainly conflict with each other in their tendency. He submitted that it was for the sentencing judge to perform the difficult task of synthesis in order to arrive at a coherent penalty that accommodated all such opposing factors.
5. The respondent submitted that that was why a sentencing judge must have a wide scope within which to assess the weight to be given to factors that drive a decision in opposing directions. The respondent submitted that that is why a sentence that is arithmetically out of line with earlier, somewhat similar cases, may still be the result of a proper exercise of discretion. The respondent submitted that there would be no error if leniency in sentencing was based upon a rational view that in the particular offender's case, leniency would serve the public interest and that a more severe penalty would not.
6. In relation to the guideline judgment in Regina v Whyte, Spigelman CJ (with whom the other four judges agreed) set out seven "characteristics" which frequently occur in dangerous driving scenarios and 11 "aggravating factors" which occur in many dangerous driving offences (see [61] hereof).

Consideration

1. The respondent's primary position in relation to this ground of appeal, set out at [87] hereof, is not supported by the principles of sentencing applied in this Court. This Court has said on a number of occasions that it is most important that an assessment be made as part of the instinctive synthesis process, of the objective seriousness of the offending under consideration. Such an assessment does not involve any particular precision, nor does it require the gravity of an offence to be assessed by assigning to it a place within a notional scale. What is essential is to identify the "facts, matters and circumstances" bearing upon that assessment so as to make clear that they have been considered (FL v R [2020] NSWCCA 114 per Wilson J (with whom R A Hulme and Hamill JJ agreed) at [59]-[60]).
2. Any doubt on this issue was resolved by the High Court (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ) in Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [26]-[29] where their Honours said: "26 Section 54B applies whenever a court imposes a sentence of imprisonment for a Div 1A offence. The provision must be read as a whole. It is a mistake to give primary, let alone determinative, significance to so much of s 54B(2) as appears before the word "unless". Section 54B(2), read with ss 54B(3) and 21A, requires an approach to sentencing for Div 1A offences that is consistent with the approach to sentencing described by McHugh J in Markarian v The Queen: "[T]he judge identifies all the factors that are relevant to the sentence, discusses their significance and then makes a value judgment as to what is the appropriate sentence given all the factors of the case." (emphasis added) 27 Section 54B(2) and s 54B(3) oblige the court to take into account the full range of factors in determining the appropriate sentence for the offence. In so doing, the court is mindful of two legislative guideposts: the maximum sentence and the standard non-parole period. The latter requires that content be given to its specification as "the non-parole period for an offence in the middle of the range of objective seriousness". Meaningful content cannot be given to the concept by taking into account characteristics of the offender. The objective seriousness of an offence is to be assessed without reference to matters personal to a particular offender or class of offenders. It is to be determined wholly by reference to the nature of the offending. 28 Nothing in the amendments introduced by the Amending Act requires or permits the court to engage in a two-stage approach to the sentencing of offenders for Div 1A offences, commencing with an assessment of whether the offence falls within the middle range of objective seriousness by comparison with an hypothesised offence answering that description and, in the event that it does, by inquiring if there are matters justifying a longer or shorter period. 29 A central purpose of Div 1A is to require sentencing judges to state fully the reasons for arriving at the sentence imposed. The reference in s 54B(4) to "mak[ing] a record of its reasons for increasing or reducing the standard non-parole period" is not to be understood as suggesting either the need to attribute particular mathematical values to matters regarded as significant to the formation of a sentence that differs from the standard non-parole period, or the need to classify the objective seriousness of the offending. It does require the judge to identify fully the facts, matters and circumstances which the judge concludes bear upon the judgment that is reached about the appropriate sentence to be imposed. The obligation applies in sentencing for all Div 1A offences regardless of whether the offender has been convicted after trial or whether the offence might be characterised as falling in the low, middle or high range of objective seriousness for such offences."

Ground 2 - The aggregate sentence pronounced was manifestly inadequate

Ground 3 - The non-parole period of the aggregate sentence pronounced was manifestly inadequate

1. The Crown submitted that for offences against s 52A(1) (dangerous driving occasioning death) and s 52A(3) (dangerous driving occasioning grievous bodily harm), the Court's guideline "for the typical case" was that "[w]here the offender's moral culpability is high, a full time custodial head sentence of less than three years (in the case of death) and two years (in the case of grievous bodily harm) would not generally be appropriate": Regina v Whyte at [229]. The Crown noted that Spigelman CJ observed at [231] that in the aggravated version of each offence in s 52A "an appropriate increment to reflect the higher maximum penalty, and what will generally be a higher level of moral culpability, is required". The Crown noted that it was against that background that the maximum penalty for the aggravated form of the offence causing death at the time of this offending had increased from 10 to 14 years imprisonment.
2. As the grounds of appeal make clear, the Crown appeal challenged the notional degree of concurrency and accumulation of the individual sentences on the basis that the non-parole period and total effective sentence did not adequately reflect the total criminality revealed by the respondent's offences. In determining such issues, questions of totality and proportion also arise. The Crown submitted that these issues were not properly assessed.
3. For the reasons already set out, the Crown submitted that the respondent's moral culpability was high, having regard to the sentencing judge's finding that there had been an abandonment of responsibility by him. The Crown submitted that this conclusion was inevitable given the speed at which the respondent was travelling and his intoxication taken with the other aggravating factors, i.e. the extent and nature of the injuries inflicted, the number of people put at risk and the generally erratic driving.
4. The Crown submitted that while the respondent possessed a number of characteristics of a "typical case" he compared unfavourably with the typical case to which the guideline judgment applies in two respects: 1. in terms of characteristic (i) at [204] of Regina v White, the respondent was not a young offender and was therefore not entitled to any particular leniency which that factor would normally attract; and 2. in relation to characteristic (iii), the respondent was responsible for the death of two passengers.

Respondent's submissions

1. The respondent submitted that insofar as aggregation and totality were concerned, the sentencing judge had made an appropriate allowance. On that issue, the respondent noted that the indicative sentences amounted to 9 years and 1 month and that the aggregate sentence amounted to 6 years.
2. In relation to "comparable cases", the respondent noted that in the hearing before the sentencing judge the Crown conceded that there was no strictly comparable case to that under consideration in these proceedings. The respondent submitted that the "comparable cases" relied upon in these proceedings revealed a very wide range of sentences. This was against a factual background which differed substantially from case to case and revealed a wide range of facts giving rise to different levels of moral culpability. The respondent briefly summarised the cases to which the Crown had referred and in doing so emphasised the broad range of factual differences which that analysis revealed. The respondent also noted that in none of the cases considered, either at first instance or in this Court, had the complication created by COVID-19 and the consequential difficulties encountered by inmates who were presently in custody.
3. The respondent accepted that the aggregate sentence imposed by the sentencing judge was lenient, but submitted that there were "rational" reasons to warrant the approach taken by his Honour. The matters taken into account by the sentencing judge were: 1. the respondent demonstrated remorse and contrition; 2. the respondent had no relevant criminal history in New South Wales or Queensland; 3. the respondent had no traffic record in New South Wales; 4. the respondent had no prior alcohol related offences; 5. the respondent was a person of otherwise good character; 6. the extensive delay from the time of offending to the date of sentence (approximately two and a half years) included a number of occasions when the sentence hearing was adjourned after the respondent had prepared himself to be imprisoned through no fault of his own and over his objections; 7. the respondent had not re-offended in the period since those offences and had maintained employment; 8. it was unlikely that the respondent would re-offend; 9. the respondent had suffered terrible losses as a result of the accident, i.e. friends; 10. the respondent had undertaken professional psychological treatment to address his alcohol abuse issues; 11. the respondent had sustained a serious injury himself; and 12. the impact of COVID-19 on the nature of punishment had seriously affected him, given that his family all lived interstate.

Consideration

1. As the submissions make clear, the Crown appeal in relation to Grounds 2 and 3 challenged the degree of concurrency of the individual sentences with the result that the non-parole period and total effective sentence did not adequately reflect the criminality revealed by the respondent's offences. I agree with that conclusion.
2. A finding that the respondent's moral culpability was high was not challenged on appeal and flowed directly from the finding by the sentencing judge that the respondent's conduct amounted to an abandonment of moral responsibility. Such a conclusion was inevitable given the age of the respondent, the speed at which he was driving and his intoxication. The respondent was well aware of the fact that he was carrying three passengers.
3. What is also clear is that not only was the respondent's moral culpability high in respect of all three offences, but the objective seriousness of the offences was greater than that considered in the guideline judgment of Regina v Whyte by virtue of the number of victims and the death of two of them. In that regard, the respondent was being dealt with for the aggravated form of the offence under s 52A of the Crimes Act which carried a maximum penalty of imprisonment for 14 years.
4. Given the sentencing judge's finding on moral culpability and the other aggravating factors present, it is clear that the head sentence and indicative sentences were lenient (as was conceded by the respondent). The sentencing judge appears to have approached the guideline judgment in Regina v Whyte as establishing a norm above and below which the sentences should be ordered. This emerges when one has regard to the starting point for the indicative sentences.
5. I am satisfied that when the leniency shown to the respondent by the sentencing judge in fixing the indicative head sentences, is combined with the inadequacy of the notional accumulation of the indicative sentences, the result is an overall head sentence that was manifestly inadequate.
6. While I accept that questions of accumulation and concurrency are discretionary, as to which there is no single correct answer, the real issue in this matter was whether the effective total non-parole period and head sentence properly reflected the respondent's criminality, taking into account all of the circumstances. As already indicated, I would answer that question in the negative.

Re-sentence

1. Consistent with the manner in which the appeal was run by the Crown, this Court should not greatly increase the indicative sentences for each of the three counts.
2. The effective sentence imposed by the sentencing judge comprised a non-parole period of 2 years and 9 months with an effective head sentence of 6 years. This clearly needs to be increased.
3. In determining questions of accumulation, concurrency and totality the Court must have regard to all factors relevant to sentence including the objective gravity of the offences. Regard should be had to the respondent's subjective circumstances and the need for retribution and personal and general deterrence to be reflected on sentence while continuing to allow the respondent a 25 per cent discount for his pleas of guilty in the Local Court.
4. In accordance with that guidance, the orders which I propose are as follows: 1. The Crown appeal is allowed. 2. The orders made by his Honour Ellis DCJ on 7 October 2020 are quashed. 3. In lieu thereof, the following orders are made: 1. In relation to the s 166 Certificate, the respondent is disqualified from driving for 6 months. 2. In relation to the three indictment counts, the respondent is convicted and global disqualification is imposed of 4 years. 3. The respondent is sentenced to an aggregate sentence of imprisonment for 8 years commencing 7 October 2020 and expiring on 6 October 2028 with a non-parole period of 4 years and 9 months commencing 7 October 2020 and expiring 6 July 2025. 4. In relation to Count 1 (Sequence 5) the indicative sentence is 6 years. 5. In relation to Count 2 (Sequence 6) the indicative sentence is 6 years. 6. In relation to Count 3 (ex officio) the indicative sentence is 9 months.
5. BELLEW J: I have read in draft the judgment of Hoeben CJ at CL.
6. I adopt his Honour's summaries of the facts of the offending, the subjective case of the respondent, the submissions of the parties in respect of each ground and the principles relating to Crown appeals.
7. I agree with his Honour's conclusions that each of the three grounds of appeal have been made out and wish to shortly express my own additional reasons for coming to that view.

GROUND 1

1. Ground 1 asserts error in the conclusion reached by the sentencing judge as to the objective seriousness of the offending.
2. In Mulato Spigelman CJ observed (at [37]) that the characterisation of the degree of objective seriousness of an offence is classically within the role of a sentencing judge in performing the task of finding the facts. It is for that reason that his Honour went on to observe that this Court will be slow to determine such matters for itself, or set aside a determination made by a sentencing judge in the exercise of a broadly based sentencing discretion. In a case where this Court is asked to set aside the determination of a sentencing judge as to the objective seriousness of particular offending, the question is whether or not such determination was reasonably open.
3. In the present case, the sentencing judge found that the respondent's offending was at the mid-range of objective seriousness (ROS 5). That finding was made in circumstances where, in terms of the facts of the offending, his Honour found that: 1. the respondent had commenced drinking at a club on the afternoon of 12 April, and into the hours of 13 April (at ROS 3); 2. the respondent had failed to negotiate a sweeping right hand bend and had collided with a tree (at ROS 3); 3. 5 seconds before impact, the respondent's vehicle was travelling at a speed of 130 km/h, with full application of the throttle (at ROS 3); 4. 3.5 seconds before impact, the respondent's vehicle was travelling at a speed of 136 km/h (at ROS 3); 5. the brakes on the respondent's vehicle were not applied until approximately 2 seconds prior to impact, at which point the vehicle slowed to 124 km/h (at ROS 3); 6. at a point half a second before impact, the vehicle had slowed to 85 km/h (at ROS 3-4); 7. at the time of impact the vehicle was travelling at 61 km/h (at ROS 4); 8. the posted speed limit was 50 km/h (at ROS 4); 9. expert opinion evidence supported a conclusion that at time of the collision the respondent's blood alcohol reading was .183/100 ml of blood, thus impairing his ability to drive his vehicle (at ROS 4-5); 10. the respondent's driving may have exhibited "some aspect of showing off" (at ROS 5); 11. the respondent's driving exhibited an "abandonment of moral responsibility" (at ROS 6).
4. Those findings were largely based upon facts which were agreed between the parties.

GROUND 2

1. Ground 2 asserts that the sentence imposed was manifestly inadequate. My reasons for coming to the view that this ground is also made out can be shortly stated.
2. In Whyte Spigelman CJ set out the characteristics of a "typical" case of an offence contrary to s 52A and concluded (at [240]) that in such a case, where an offender's moral culpability was high, a full time custodial sentence of less than three years (in the case of a death) would not generally be appropriate. Importantly, his Honour also concluded that in the case of an aggravated offence contrary to s 52A(2) or 52A(4), an appropriate increment to reflect the higher maximum penalty, and what will generally be a higher level of moral culpability, is required.
3. As I have already noted, the sentencing judge found that there had been an abandonment of moral responsibility by the respondent. Given that the respondent was charged with two counts of the aggravated offence contrary to s 52A(2) (the circumstance of aggravation being the fact that he was driving with the prescribed concentration of alcohol) any sentence imposed was required to incorporate the appropriate increment to which Spigelman CJ referred.
4. The characteristics of a "typical" case set out by Spigelman CJ included the fact that the offender was young. At 31 years of age, the respondent did not, from the point of view of being sentenced, fall into the category of a "young offender". Moreover, as I have pointed out, this was not simply a case where the respondent's moral culpability was high, but was a case in which his Honour found that there had been an abandonment of moral responsibility, to the point where his Honour appears to have been satisfied that there was "some aspect of showing off in terms of accelerating away from the other vehicle". The fact that the respondent was not, as his Honour found (at ROS 5) "escaping police or ignoring particular warnings" when showing off was of limited significance.
5. His Honour applied an appropriate discount to reflect the utilitarian value of the respondent's early pleas of guilty and found that he was remorseful and demonstrated excellent prospects of rehabilitation. Those matters were properly taken into account.
6. His Honour also concluded (at ROS 6) that the respondent was a person of prior good character. Whilst that finding was open, the respondent's good character was deserving of limited weight. In R v McIntyre (1988) 8 MVR 371, a case involving offending contrary to s 52A, Lee CJ at CL (with the concurrence of Hunt J (as his Honour then was) and Campbell J) observed (at 375): His Honour took into account, of course, the good character of the respondent, and properly so. But it must be said that this class of offence is one which in many, perhaps even in most cases, is committed by persons who are not in any sense members of the criminal class or who even have criminal convictions against them, and for that reason the courts need to tread warily in showing leniency for good character to avoid giving the impression that persons of good character may, by their irresponsible actions at the time, take the lives of others and yet receive lenient treatment.

GROUND 3

1. Ground 3 asserts that the non-parole period of the aggregate sentence was manifestly inadequate. It is apparent the non-parole period which was imposed, which represented only 46% of the aggregate sentence, was consequent upon his Honour's finding of special circumstances. That finding was not specifically challenged by the Crown before this Court, ground 3 being confined to an assertion that the non-parole period is manifestly inadequate.
2. In order to explain why I consider that this ground has been made out, it is necessary for me to commence by setting out some of the principles which govern the imposition of a non-parole period generally, and a discretionary finding of special circumstances specifically.
3. Firstly, the fixing of a non-parole period is not a matter to be determined solely, or even primarily, by reason of considerations of rehabilitation: R v Simpson (2001) 52 NSWLR 704; [2001] NSWCCA 534 per Spigelman CJ at [59].
4. Secondly, a non-parole period is to be fixed according to what all of the circumstances of the case indicate should be the minimum period of actual incarceration: Simpson at [53] citing Power and ors v The Queen [1974] HCA 26; (1974) 131 CLR 623. The phrase "all of the circumstances of the case" necessarily includes a consideration of any need for rehabilitation. It also encompasses a consideration of the facts and circumstances of the offending, and any criminal history.
5. Thirdly, and fundamentally, it is necessary for circumstances be sufficiently "special" in order to justify a variation in the statutory ratio between the head sentence and the non-parole period: Simpson at [68]; R v Fidow [2004] NSWCCA 172 at [22];
6. Fourthly, the fact that an offender is to face imprisonment for the first time is unlikely to justify a finding of special circumstances: Collier v R [2012] NSWCCA 213.
7. Fifthly, even if special circumstances are made out, a sentencing judge is not permitted to reduce a non-parole period to a level below that which is necessary to punish the offender, and to act as a deterrent, be it to the offender or to others: R v Cramp [2004] NSWCCA 264 at [34].
8. Finally, in order for special circumstances to be made out there must be some evidence that a longer period on parole would be likely to assist in the offender's rehabilitation: R v Carter [2003] NSWCCA 243 at [20]; R v Tuuta [2014] NSWCCA 40 at [57].

RE-SENTENCE

1. It follows from my agreement that ground 1 is made out that I regard the offending in the present case as falling above the mid-range of objective seriousness.
2. In determining the appropriate sentence I have had regard to the affidavit of Michael Jones which was read by the Crown, and which sets out the response of Corrective Services NSW to the current pandemic and the effect on persons incarcerated. I have also had regard to the circumstances of the offending, the respondent's subjective circumstances, and the principles to which I have referred in relation to the determination of an appropriate non-parole period. In light of the evidence of Ms Godbee to which I have referred, I am satisfied that special circumstances have been established.
3. For these reasons I agree with the orders proposed by Hoeben CJ at CL.
4. HIDDEN AJ: I find it unnecessary to determine ground 1, and I prefer to express no concluded view about the ambit of the conduct encompassed by the notion of abandonment of moral responsibility. However, the offending here was undoubtedly serious and, taking into account all the circumstances of the case, I agree with Hoeben CJ at CL that grounds 2 and 3 are made out.
5. I am satisfied that this Court should intervene and I agree with the orders his Honour proposes.

Amendments 01 July 2021 - Paragraphs numbers reformatted from para. [140]. Para. [161], quote now reads "What I can obviously say..." 19 July 2021 - Paragraphs [141] - [178], "applicant" to "respondent" DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 19 July 2021