R v Butler; R v Russell

CA 38 Nasrullah v R [2021] NSWCCA 207 Neal v The Queen (1982) 149 CLR 305; [1982] HCA 55 Olbrich v The Queen (1999) 199 CLR 270; [1999] HCA 54 Palu v R [2002] NSWCCA 381; (2002) 134 A Crim R 174 Paterson v R [2021] NSWCCA 273 Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57 Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26 Qutami v R [2001] NSWCCA 353 R v AWF (2000) 2 VR 1; [2000] VSCA 172 R v Blake Davis [2021] NSWSC 235 R v Borkowski [2009] NSWCCA 102 R v Cameron [2005] NSWCCA 359; (2005) 157 A Crim R 70 R v Clinch (1994) 72 A Crim R 301 R v Cramp [1999] NSWCCA 324 R v Dutton [2005] NSWCCA 48 R v Errington [1999] NSWCCA 18 R v Gordon (1994) 71 A Crim R 459 at 466 R v Green, unreported, Wollongong District Court 27/08/2021 R v Herring (1956) 73 WN (NSW) 203 R v Isaacs (1997) 41 NSWLR 374 R v Janceski [2005] NSWCCA 288 R v JDX; JDX v R [2017] NSWCCA 9 R v McKenna (1992) 7 WAR 455; (1992) 63 A Crim R 452 R v McKeown [2013] NSWDC 22 R v Millwood [2012] NSWCCA 2 R v MJB [2014] NSWCCA 195 R v Powell, unreported, Wollongong District Court 28/08/2020; R v Ryan [2020] NSWDC 406 R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 R v Smith [2016] NSWCCA 75 R v Tuala [2015] NSWCCA 8 R v Winter (2012) [2012] NSWCCA 218 Ryan v R [2017] NSWCCA 209 Ryan v The Queen (2001) 206 CLR 267 Tabbah v R [2019] NSWCCA 324 Tepania v R [2018] NSWCCA 247 The Queen v Pham [2015] HCA 39 Veen v The Queen (No. 2) (1987-1988) 164 CLR 465; [1988] HCA 14 Whyte v R [2002] NSWCCA 343; (2002) 55 NSWLR 252 Zreika v R [2021] NSWCCA 243 Texts Cited: COVID-19 (coronavirus) Response, Corrective Services NSW; https://www.coronavirus.dcj.nsw.gov.au/services/corrective-services/impact-of-covid-restrictions Does Imprisonment Deter? A Review of the Evidence, Sentencing Advisory Council Victoria, April 2011,p. 126 Parole Supervision and Re-offending: Wai-Yin Wan, Suzanne Poynton, Gerard van Doorn and Don Weatherburn (2016) Australian & New Zealand Journal of Criminology v149. No.4. p 497, 2011 Parole Supervision and Re-offending: Wai-Yin Wan, Suzanne Poynton, Gerard van Doorn and Don Weatherburn (2016) Australian & New Zealand Journal of Criminology v149. No.4. p 497, 2011, http://www.bocsar.nsw.gov.au/Documents/parolesupervisionandreoffending.pdf Category: Sentence Parties: Darren Butler (the offender) Andrew Douglas Russell (the offender) Director of Public Prosecutions Representation: Counsel: Ms B O'Reilly, Public Defender (for the offender Butler) Mr W Terracini SC (for the offender Russell) Mr G Porter, Crown Prosecutor

Solicitors: Morrisons Law (for the offender Butler) McAneny Lawyers (for the offender Russell) File Number(s): 2019/00158261; 2019/00170076 (Butler - Sentence) 2020/00141787 (Butler - Sentence Appeal) 2019/00158319 (Russell)

Introduction

1. At 2:24 am on 18 May 2019 on the Pacific Highway at Albion Park Rail a black Ford Territory SUV (the Ford) driven by Ms Merrett, travelling at over 100 kph slammed into the side of a petrol tanker turning into the Highway. The tanker driver had turned in front of the Ford presuming it was travelling at the 70 kph speed limit. In fact, at the time the truck driver first saw the lights of the Ford to his North it was travelling at about 164 kph.
2. Ms Merrett's brother, Daniel Merrett went through the windscreen of the Ford and under the tanker. He died instantly. Mr Merrett was not wearing a seat belt.
3. Ms Merrett suffered severe injuries. Their cousin, Ms Jakaya Clulow, a rear seat passenger, was also severely injured. Mr Johnson, the front seat passenger, walked from the wreckage with relatively minor injuries.
4. Following the incident Darren Butler and Andrew Russell were charged with the unlawful killing of Mr Merrett: s18 Crimes Act 1900. Butler was also charged with an alternative count of causing the impact that lead to Mr Merrett's death and of causing the impact that led to the grievous bodily harm to Ms Merrett and Ms Clulow: s52A Crimes Act. Mr Russell was also charged with firing a firearm in a public place: s 93G(1)(b) Crimes Act.
5. Butler is also for sentence today for offences, committed after this incident while he was avoiding arrest, of a take & drive conveyance without consent of owner and police pursuit (second offence): ss 154A Crimes Act and s51B (1) Crimes Act.

A trial in Wollongong District Court

1. On 1 July 2021, after a four week trial and 4 days of deliberation, a jury of 12 found Butler and Russell guilty of the unlawful killing count. Butler was also found guilty of dangerous driving causing the impact that led to the grievous bodily harm to Ms Merrett and Ms Clulow. Russell was found not guilty of the firearm charge. He must have the full benefit of that acquittal.
2. Butler and Russell were not in either the Ford or the petrol tanker. They were in another car, a silver Corolla sedan (the Corolla), driven by Butler. The jury however accepted beyond reasonable doubt that they both caused Mr Merrett's death and that Butler's driving caused the impact that led to the harms suffered by Ms Merrett and Ms Clulow.
3. Butler and Russell had earlier that evening, at a service station in Cringila, sought to extort money from Mr Johnson. They knew Johnson had recently come into money and he had offered them money to commit a crime against another associate. They did not commit that crime but still wanted their payment.
4. At the service station threats were made, including a threat about a firearm. After the Ford left the service station it was followed by the Corolla driven by Butler. Russell was in the car, as was Ms Green, who had stayed in the car while Butler and Russell spoke to the others at the service station. The Ford stopped briefly a few kilometres later to allow a child to be taken from the car by its mother. At that location Russell showed Ms Clulow an item in a bag. She thought it was a firearm.
5. The Ford and the Corolla stopped again in Northcliffe Drive, Berkeley, a short distance from where the child had been dropped off. At that point Butler left his car and hit the Ford with a stick. He also tried to pull Mr Johnson from the front passenger seat.
6. After fleeing that incident Ms Merrett drove at speed toward the Princes Motorway (M1) intending to go the Police Station at Oak Flats, a few minutes' drive south beyond Albion Park Rail. The Corolla followed, matching the Ford's speed. Mr Merrett called 000. During that call a sound was heard. The occupants presumed it was a gunshot.
7. Both vehicles then entered the M1 and headed south. Their average speed on the highway before the roundabout at Albion Park Rail was 160 kph. As the Ford changed lanes the Corolla followed. As it exited the roundabout at Albion Park Rail the Corolla executed an "emergency panic level" brake, dropping its speed from 163-164 kph to about 50 kph. It passed the crash scene at that speed but soon after sped up to 110kph.

Related sentence matters - Butler only

1. On the first day of trial and in the absence of the jury panel Butler entered guilty pleas to an offence of take and drive a conveyance and police pursuit. There is also a related summary matter before me on a s166 Criminal Procedure Act 1987 certificate of drive while disqualified: s 54(1)(a) Road Transport Act 2013. Butler had been disqualified from driving for 2 years in 2018 but that disqualification period had only commenced after his release from gaol on 12 January 2019. He has never held a driver's licence. He has never lived in the community long enough to sit a test or to comply with the learner driver requirements.
2. As the guilty pleas for the two indictable matters were entered late I can only allow a reduction of 5% from the sentence to be indicated to reflect the utilitarian value of the plea: s25D Crimes (Sentencing Procedure Act 1999. Where the plea was entered in the Local Court a 25% reduction is required.
3. An appeal against a sentence imposed in the Local Court for an unrelated offence of intentionally damage property by fire committed on 28 March 2020 is also before me: see [24] below.
4. After the impact that caused the death of Mr Merritt and the injuries to Ms Merritt and Ms Clulow the offender took active steps to avoid his arrest. In doing so he persuaded a number of young people into helping him. Some of them I have sentenced: R v Powell, unreported, Wollongong District Court 28/08/2020; R v Powers; R v Day [2020] NSWDC 574; R v Ryan [2020] NSWDC 40; R v Green, unreported, Wollongong District Court 27/08/2021. One associate refused to let Butler borrow his Nissan Navarra but on 18 May 2019 Butler took the keys and then the car. The victim was later threatened and as a consequence signed a document purporting to say he had sold the car to Butler. By this time he had already reported its theft to police. While in Victoria, on the run from police, Butler sold the car.
5. On 30 May 2019 Butler was back in Wollongong. He borrowed a car from an associate Mr Ryan: R v Ryan [2020] NSWDC 406. Police were monitoring his associates and the car was soon under Pol-Air surveillance. Police saw the car driven by Butler in the suburb of Figtree. Butler accelerated away from the police car and a pursuit was initiated. The pursuit covered about 1 kilometre. It is captured on in-car-video tendered in the proceedings. It shows Butler's erratic driving. He overtook another vehicle over unbroken lines. He drove at between 50 and 100 kph in a 50 kph zone. The pursuit stopped when Butler drove the car onto a park and then into a river. Butler and his passenger Ms Powers were arrested soon after.

Police pursuit

1. The community is dependent on the hard work and at times courage of police officers for the protection of lives, personal security and property: Attorney General's Application under s37 of the Crimes (Sentencing Procedure) Act 1999 No 2 of 2002 [2002] NSWCCA 515. Police officers take substantial risks in the execution of their duties. Where a driver blatantly ignores police and seeks to flee they put police and other road users at significant risk. To ignore police directions in such a manner shows a high degree of moral culpability. The extent of that culpability can be assessed by considering; the distance covered, nature of the driving and speed relative to posted speed limits and driving conditions, the time of day, how much other traffic is about and level of risk to other road users, including police.

Steal Motor vehicle

1. Unless you are lucky enough to own a home a motor vehicle is generally the most expensive and valuable item a person can own. To lose a car means not just financial loss but loss of the ability to move freely about the community. Not all vehicles are insured and even if they are thefts led to higher premiums that are passed on as a cost to the whole community.

Butler's Sentence Appeal

1. On 28 March 2020 Butler was an inmate in the segregation unit (solitary confinement) at Shortland Detention Centre. He had been placed in detention after he and others caused a disruption in his wing. He became agitated after another inmate was returned to the general prison population. He pressed the distress button on his cell. Smoke and then flames were seen coming from his cell. The fire was quickly extinguished and Butler taken for medical check-up. The fire had been deliberately lit. There was smoke and fire damage to the cell and his bedding; the presumed source of the fire. Repair and rectification costs totalled $1,616.73. He paid over $500 from his gaol account in compensation.
2. Written submissions provided to the magistrate indicated that prior to the incident he had also been distressed by his inability to have personal family visits and his committal for trial on the homicide count and had not seen his lawyers and a request to speak with an Aboriginal elder had been denied.
3. On appeal Ms O'Reilly, for Butler, relied on what was put before the Court in Cessnock and all the material tendered on sentence in the principal proceedings. She submitted that the sentence was too severe when the relatively modest damage caused was taken into account. Further, she submitted there were reasons for greater concurrency with the other sentences.
4. In response Mr Porter said Magistrate Lacy's reasons indicated she fairly considered all relevant issues and no error was made - her sentence he submitted was just and appropriate.

Appeal Determination

1. I must make my own independent assessment of the penalty required. The offence was serious, not just because of the damage caused. The fire disrupted prison discipline and reduced the availability of scarce resources. It put Butler, other inmates and staff at risk. It was, as Magistrate Lacy said, a "provocative" act by a prisoner with a longstanding history of defiance. The sentence was only partly accumulated and a finding of special circumstances was made. In my opinion having considered all relevant matters it was an appropriate sentence and I would not interfere with it. The sentence appeal is dismissed.

Manslaughter - Basis for liability

1. After verdict I am obliged to make my own assessment of the evidence as part of my overall synthesis of all relevant factors that must determine the sentences to be imposed. That assessment must be consistent with the jury verdicts. Matters in mitigation of sentence must be established on the balance of probabilities; matters in aggravation of penalty must be established beyond reasonable doubt: Olbrich v The Queen (1999) 199 CLR 270; [1999] HCA 54.
2. Critical to that determination is the acquittal of Russell of the discharge firearm count. Russell must have the full benefit of his acquittal. And, that acquittal means that both men must get the benefit of the jury's doubt as to whether a firearm was used that night. Whatever the occupants of the car saw or thought they saw and whatever the sound on the 000 call that preceded Mr Merritt saying "they're shooting at us" (Exhibit G), all I can find is that those in the car 'believed' a firearm was being used against them.
3. That said, having heard the witnesses and their cross-examination I do not find, as was submitted at trial, that the belief of the passengers about a firearm was invented. Mr Merritt apparently in his panicked state made some exaggerated assertions during the 000 call as the Ford vehicle was not "on fire" as he stated and the Ford was not hit by bullets as later no bullet holes were found in it. But at the start of the 000 call Mr Merritt is relatively calm when he first mentions a firearm. I am sure those in the car got the impression there was a firearm and this impression may have been fostered by what was said and done by Butler and Russell. However, at this stage there was no chase.
4. It is only after the 'crack' noise was heard at 21 seconds into the 000 call that the screaming starts and does not let up. It is then Mr Merritt says, "There shooting at us there's a fuckin…" The call is terminated but soon after the 000 operator calls him back and that call continues until it ends poignantly with the 000 operator saying: "one police vehicle just passed you (SCREAMING and bang)...Did you just hit something...have you's had an acci…"
5. Butler after slowing to pass the accident scene sped away. His concern was solely for himself and Russell. No attempt was made to aid those involved and his later driving was well above the speed limit. Further evidence of that his state of mind prior to the collision involved a total abandonment of any responsibility for other road users.

Moral culpability

1. A sentencing judge must make an objective assessment of the seriousness of the crime. That assessment can include factors personal to the offender that are causally connected with or materially contributed to the commission of the offence such, as motive: Paterson v R [2021] NSWCCA 273 at [29]; Tepania v R [2018] NSWCCA 247 at [112]; Neal v The Queen (1982) 149 CLR 305; [1982] HCA 55 at 324-325: Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67 at [171]-[172].
2. It is common in motor vehicle death cases for the assessment of objective circumstances to also and contemporaneously take into account an assessment of the moral culpability of those responsible, that is, their moral blameworthiness for the offence. Sentences are often increased if the offender has abandoned their moral responsibility for others by the way they drove: Whyte v R [2002] NSWCCA 343; (2002) 55 NSWLR 252.
3. Any determination of moral culpability must also involve a consideration of circumstances which may affect the offender's capacity to reason, appreciate fully the wrongfulness of their actions or control their conduct and other subjective factors affecting them such as their background, age, state of maturity and mental state and or intellectual capacity: Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [27] and [54]; Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 at [44]; Veen v The Queen (No. 2) (1987-1988) 164 CLR 465; 1988] HCA 14; [1988] HCA 14; Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38 at [57]; Zreika v R [2021] NSWCCA 243 at [55]: Paterson at [30].
4. Assessments of an offender's moral culpability are always important when formulating an appropriate sentence. In some case moral culpability can led to an increase in sentences at other times it can lead to a diminution of sentence: see [108]. But judges do not engage in a staged approach to sentencing. All relevant matters must be synthesised before a judgment is pronounced. A judge must identify all the factors that are relevant to the sentence, discusses their significance and then make a value judgment: Markarian v The Queen; (2005) 228 CLR 357; [2005] HCA 25 at [51]: Muldrock at [26].

Basis for liability - Butler

1. Butler wanted to extort money from Mr Johnson. In order to get that money he tried to intimidate Mr Johnson and those in the car with him. He followed the Ford to where the child was dropped. His actions were designed to, and did, intimidate the occupants. That was the only reason the child was dropped off. He directed those in the Ford to Northcliffe drive. There he attacked the Ford using a stick and assaulted Mr Johnson in an attempt to get him out of the car. When the Ford sped off he drove after it. When the Ford's speed increased he matched that speed. His primary liability arises at this point. The driving on Northcliffe drive was at a relatively high speed for about 5 kilometres. He was driving close to the Ford but from what CCTV is available not dangerously so. At that early hour there was little traffic about. However, after the turn onto M1 to the point Butler "panic braked" 330m before the collision occurred his driving was seriously dangerous.
2. The 000 call captures the concern of the Ford's occupants and Ms Merritt's attempts to evade the Corolla driven by Butler. He matched her speed and her lane changes. He drove close behind her. Police responding to the 000 call saw the chase as they approached from the other direction. There were road works. There were other cars on the road. The 'average' speed over the approximately 12 kilometres travelled was 160 kph!: Exhibit F (table 3) & Exhibit X.
3. Constable Winston told the jury that he was travelling North through the 80kmph roadwork area at Yallah when he saw a dark coloured SUV with a small silver coloured car heading south at high speed. He said "Both vehicles were passing another vehicle that was travelling in lane one of two, that did not look like it was moving, due to the high speed that the two vehicles involved in the incident were travelling at:" TT 396 & 397.
4. By matching the Ford's speed, changing lanes and staying too close behind the Ford, Butler's acts of intimidation put the occupants of the Corolla and other road users in extreme danger. He could have stopped and backed off at any point. His motive was to make a petty financial gain. And as a consequence of his actions a young man lost his life.
5. Mr Merrett died instantly at the scene from blunt force head injuries. He sustained other significant injuries: Agreed Fact Ex J. Two others suffered significant injury.

Basis for liability - Russell

1. Russell also wanted to extort money from Johnson. He played a role at the service station in intimidating those in the Ford and when the child was dropped. He joined Butler and added by his words and actions to the threat felt by those in the Ford, Mr Merritt and Mr Johnson in particular. He was aware of Butler's attack on those in the Ford when it stopped again in Northcliffe Drive. He stayed in the vehicle. He was part of an unlawful agreement to intimidate them.
2. There is no evidence he sought to end agreement thereafter. The jury, as is obvious from its verdict, did not accept that he was a helpless passenger during the chase. However, he was not the driver and there is no evidence (the jury having acquitted him of firing a gun) how, other than by his presence, he encouraged Butler after the chase started. He is not criminally responsible for the injuries to Ms Merritt and Ms Clulow.
3. Actual conduct and differing levels of culpability during a joint criminal enterprise can justify a real difference in penalty: JW v R [2010] NSWCCA 49. Russell's liability is derivative. His role was significantly less than Butler's. Something the Crown concede: Crown submissions [16]. But Russell joined, and continued, in a criminal enterprise that ultimately lead to the death of another young man. And, accordingly, he must bear some criminal responsibility for that death.

Objective seriousness- motor vehicle manslaughter

1. Issues relating to sentencing for manslaughter involving motor vehicles were recently considered by the Court of Criminal Appeal in Director of Public Prosecutions v Abdulrahman [2021] NSWCCA 114 and Byrne v R; Cahill v R [2021] NSWCCA 185 (which included a table of comparable cases). In short summary I note that: 1. There is no hierarchy of seriousness within manslaughter: R v Isaacs (1997) 41 NSWLR 374 at 381; Byrne. 2. Motor vehicle manslaughter is generally regarded as "a much more serious offence than aggravated dangerous driving occasioning death", which carries a maximum penalty of 14 years imprisonment as opposed to 25 years for manslaughter: R v Cramp [1999] NSWCCA 324 at [108]: R v McKenna (1992) 7 WAR 455; (1992) 63 A Crim R 452. 3. It is "unproductive" to consider what might have been the appropriate sentence for an offence of aggravated dangerous driving occasioning death: R v Cameron [2005] NSWCCA 359; (2005) 157 A Crim R 70 at [26]. 4. Manslaughter is no less serious a crime because it is committed by the use of a motor vehicle: Lawler v R [2007] NSWCCA 85 at [41]. 5. The Court of Criminal Appeal has emphasised the importance of general deterrence in such cases, as unlawful and dangerous act manslaughter generally involves conduct with a high degree of criminality: Lawler at [42]. 6. The seriousness of offending must be determined by the particular facts: R v Borkowski [2009] NSWCCA 102 at [49]. Matters that can impact on that assessment include: 1. the number of vehicles involved, because of the increased the level of danger to the safety of the community: Borkowski. 2. the length of time or distance travelled to the extent either or both creates a risk to the community and the safety of others. For example: 500 m in a built-up area of a city may be far more dangerous and a far greater risk to the safety of others than 5 km in an area where it is unlikely, if not impossible, to come into contact with other road users or pedestrians: Byrne & Cahill. 3. Any actual or reckless disregard for the safety of others who were in the vicinity: Byrne & Cahill. 1. An assessment of moral culpability is critical to determining the appropriate sentence for manslaughter: Director of Public Prosecutions v Abdulrahman: R v Winter (2012) [2012] NSWCCA 218 at [41]. Such assessments are often linked to an assessment of the seriousness of the offending: Byrne & Cahill. They should not be double counted against an offender. 2. Heavy sentences are required in an attempt to deter others prepared to "blatantly disregard the safety of other users of the road: Lawler v R: R v Cameron. 3. Very heavy sentences are required if there have been flagrant breaches of the road rules where multiple vehicles are being driven dangerously; such as street racing. This increases the potential dangerousness to others in the vicinity: Borkowski. 4. A sentencing court can also take into account if there were opportunities for the offender to come to their senses during the episode but they continued regardless: Borkowski. 5. Where others are injured there must be appropriate accumulation between the sentences to reflect additional injury or loss of life: Borkowski.

Basis for liability - dangerous driving causing grievous bodily harm - Butler only

1. The factors that were taken into account in assessing the objective seriousness of Butler's driving for the unlawful killing offence also apply to the two separate dangerous driving convictions. While equally relevant care must be taken when formulating the sentences to be indicated and when structuring the aggregate sentence to be imposed not to double count common features or elements: Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57
2. I must take into account the level and extent of the harm suffered by each victim.
3. Ms Merrett was transferred by air ambulance from the scene and treated at St George Hospital. She had the following injuries: 1. collapsed lung; 2. fractures to her ribs, anteriorly; 3. 3 upper arm fractures; 4. complex comminuted and displaced fractures of the left iliac, hip bone, and associated fracture haematoma; 5. a small volume of pelvic fluid; 6. reduced visual acuity in the left eye, with left eye partial-thickness laceration.
4. Surgery was performed involving an open reduction internal fixation of the fractured humerus using two plates and large frag screws x13 and a diagnostic laparoscopy. She was discharged on 24 May 2019 with the follow-up referral to an orthopaedic surgeon; Agreed Fact Ex J
5. Ms Clulow, was treated at Wollongong and St George hospitals and found to have the following injuries: 1. a fractured rib; 2. superficial lacerations to the upper chest and lower abdomen; 3. a deep six-centimetre wound to the right iliac fossa hip area; 4. left open wrist fracture; 5. a deep laceration to top of the right foot, 6. an injury of the foot where one or more of the metatarsal bones were displaced from the tarsus; 7. a fracture of the right ilieum, a large bone forming upper part of each half of the pelvis; 8. left sternoclavicular dislocation; 9. a right pulmonary contusion.
6. Emergency surgery was performed on the wound to the right iliac fossa hip area, involving wash-out, open reduction and internal fixation with three small screws to the right foot. Ms Clulow was discharged from hospital on 12 June 2019. Treatment consisted of tetanus prophylaxis and prophylactic antibiotics, left shoulder immobilisation, orthopaedic referral and ear, nose and throat referral: Agreed Fact Ex J

Objective serious dangerous driving grievous bodily harm

1. While all judges have a broad sentencing discretion the Court of Criminal Appeal has issued a guideline judgment that must be taken into account; s 42A Crimes (Sentencing Procedure) Act 1999; R v Whyte. The guideline contains typical cases that were intended to be illustrative, not definitive. The guideline judgment however made quite clear that the greater the degree a driver abandons their responsibility to others the greater the moral culpability of the offender and the more objectively serious the offence. As I discussed above at [34] the extent that Butler had abandoned moral responsibility for other road users impacts on the penalty that should be imposed. Other matters that may assist in any assessment of objective seriousness include: 1. Extent and nature of the injuries inflicted on the victim. 2. A number of people were put at risk. 3. The length of the journey during which others were exposed. 4. The speed of the vehicle relative to road conditions and speed limits. 5. The degree of intoxication or substance abuse. 6. Whether the driving involved "showing off" or "street racing."

Contributory negligence

1. Generally any conduct or culpability of the victim is not taken into account in mitigation of sentence: R v Errington [1999] NSWCCA 18; R v Dutton [2005] NSWCCA 48 at [35]. However, in some circumstances the culpability of the victim can be relevant to the assessment of the seriousness of the offender's conduct, and therefore to the offender's culpability: R v Janceski [2005] NSWCCA 288 at [26] to [29].
2. At trial it was suggested that Ms Merritt's capacity to drive was impaired by the fact methylamphetamine was found in her blood sample taken at the hospital. Expert evidence was equivocal as to the impact of that drug on her driving ability, given that when and how much she had taken was unknown. There was insufficient evidence for me to conclude that her drug use contributed to the collision and in any event if Butler had not continued to pursue the vehicle in such a dangerous manner, the death and injury would not have occurred: Janceski at [29].
3. Tragically Mr Merritt did not wear a seat belt and may have survived the crash if he had. I cannot take that fact into account in mitigation. Nothing he did caused the intimidation, the chase or the crash. At the moment he died he was doing what the 000 operator was asking of him. And, he was doing his best to avoid the consequences of Mr Butler's aggressive and intimidatory driving. That he failed to put on his seatbelt does not mitigate or reduce either offender's culpability for his death.
4. Blame was also placed on the truck driver who turned into the path of the Ford. However, having re-examined the evidence from the reconstruction of the scene and available CCTV, in the light of Ms O'Reilly's thorough cross-examination, it seem obvious that the truck driver was simply in no position to suspect a car was coming toward him at 160 kph and exercised appropriate care when he turned onto the highway. In any event his actions could not mitigate sentence or in any way absolve Butler or Russell of responsibility.

Maximum penalties

1. The offence of unlawful killing, s 18(1) Crimes Act 1900, carries a maximum penalty of 25 years imprisonment.
2. An offence of dangerous driving occasioning grievous bodily harm, s 52A Crimes Act 1900, carries a maximum penalty of 7 years imprisonment. As a Road Transport Act 2013 'major offence' and as it is Butler's second conviction it also has an automatic licence disqualification period of 5 years and a minimum period of 2 years: ss4(1) & s205(3).
3. The offence of take and drive a conveyance: 154A(1) (a) Crimes Act, carries a maximum penalty of 5 years imprisonment .
4. The offence of police pursuit (second offence), s 51B(1) Crimes Act, carries a maximum penalty of 5 years imprisonment and a licence disqualification period of 5 years and a minimum period of 2 years.
5. There is also a summary matter of drive while disqualified before me on a s166 Criminal Procedure Act 1987 certificate. It carries a maximum penalty of 2 years imprisonment and as it is Butler's second conviction it also has an automatic licence disqualification period of 12 months and a minimum period of 6 months: ss54(1)(a) & 205 Road Transport Act 2013.
6. Careful attention to the maximum penalty fixed by Parliament is always required. They are important sentencing measures to be balanced with all other relevant factors. The maximum also invites a comparison between the instant case and other cases. That said, it is not appropriate just to look first to a maximum penalty and then proceed by way of making a proportional deduction from it: Markarian at [30] and [31].

Butler

1. Born in 1992 Butler first came before the Childrens Court in 2006 aged 14. He was gaoled for the first time in 2010. Since then his time in the community can be measured in months. Butler had been released to parole on 12 January 2019. He had served a non-parole period of 10 months of an aggregate sentence that involved a police pursuit offence. A parole period of 10 months was fixed. After his arrest on 30 May 2019 he served the balance of that parole until 20 November 2019.
2. On 22 May 2020 at Parramatta District Court he was sentenced to a term of imprisonment of 2 years 9 months and 13 days for an offence of assault occasioning actual bodily harm. That sentence had a non-parole period of 2 years 3 months and 13 days. It commenced on 20 December 2019. He becomes eligible for parole on 28 December 2021. The agreed facts are before me.
3. On 3 March 2021 at Cessnock Local Court he was sentenced to 19 months imprisonment with a 13 month non-parole period for intentionally damaging prison property by fire. That non-parole period commenced on 3 March 2021 expires on 2 April 2022. An appeal against that sentence was before me today and was dismissed: See [25].
4. His gaol punishment record has multiple entries from January 2011 to September 2021. It appears however that following his release to parole he was able to remain "generally complainant" until the current offences were committed: Parole breach report 20 May 2019.
5. In 2016 Butler was involved in a police pursuit in southern Wollongong which was described as "showing a complete disregard for both vehicle and pedestrian traffic." An aggregate sentence for this and related offences of 20 months was imposed. He was subject to parole supervision and the driving disqualifications arising out of those matters when theses offences were committed.
6. Butler has an extensive criminal history for theft, robberies and other crimes of violence, including domestic violence offences. That criminal history is relevant to determining the proper sentence. It indicates that these offences are not uncharacteristic aberrations. It demonstrates his continuing disobedience towards the law. While prior criminal history cannot result in a sentence which is disproportionate to the gravity of the offence here a more severe penalty is warranted with additional focus on retribution, deterrence and the protection of society: Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14 at 477. That Butler was on conditional release, both parole and bail, for an offence committed on 23 January 2019, means a more severe sentence is warranted. The granting of bail and parole involve a promise to be of good behavior. Butler broke those promises.

Russell

1. Mr Russell was born in 1985. He came before the Childrens Court when he was 14 and appeared before that Court and the Australian Capital Territory Childrens Court on a number of occasions. He was first gaoled in 2007. From September 2009 to May 2012 he was able to live a life in the community but since 2012 his time in the community has been measured in months.
2. His gaol record has a number of discipline matters, the most recent being in July 2021. Russell was arrested on 21 May 2019. Soon after his arrest he committed two offences of assault officers while in custody. A 9 month 18 day non-parole period was served from 23 May 2019 to 13 March 2020 for an assault on another prisoner while in custody and a partially accumulated 5 months sentence was served from 10 October 2019 to 13 March 2020 for possessing a mobile phone in a place of detention.
3. His record while poor is not as bad as Butler's but it still demonstrates his continuing disobedience towards the law. And, while it cannot result in a sentence which is disproportionate to the gravity of the offence here it requires a more severe penalty with additional focus on retribution, deterrence and the protection of society: Veen (No 2).

Victim Impact

1. Mr Merritt's mother Ms Levenia Clulow, and his partner and mother of his children, Ms Coghlan, gave me particulars of the impact of his death on the them and other immediate family. As did Ms Kayleen Merritt and Ms Clulow. The prosecution asked that s 30E (3) Crimes (Sentencing Procedure) Act 1999 apply. Here, it is not in dispute that the harmful impact of Mr Merritt's death on the family victims is an aspect of harm done to the community.
2. Ms Kayleen Merritt and Ms Clulow also of the impact of the injuries arising from the offence committed against them: s28 Crimes (Sentencing Procedure) Act 1999; R v Tuala [2015] NSWCCA 8. They must be taken into account but only in relation to Mr Butler's sentence proceedings.
3. Assertions in a Victim impact Statements about the effect of the crimes are a reminder of what might be described as the human impact of crime. They draw to the attention of the judge: "the possible and probable consequences of criminal behaviour, not only its significance to society in general but the actual effect of a specific crime upon those who have been intimately affected by it. The statements provide an opportunity for those whose lives are often tragically altered by criminal behaviour to draw to the court's attention the damage and sense of anguish which has been created and which can often be of a very long duration. For practical purposes, they may provide the only such opportunity." Director of Public Prosecutions v DJK [2003] VSCA 109, Vincent JA at [17] & [18].

Ms Levenia Clulow

1. Ms Clulow is Mr Merritt's mother. No parent should have to bury their child and his death has left her with a broken heart and pain and suffering that will last forever. The incident has affected her physical and psychological health.

Ms Coghlan

1. Mr Merritt's partner, mother of his twin daughters, told me how shattered she was and of the emotional stress, anxiety and financial stress the family have suffered.

Kayleen Merritt

1. Ms Kayleen Merritt spoke of the impact of her brother's death on her and about her own injuries and the trauma she has suffered. She told me of their emotional, physical and psychological impact on her. She still has nightmares and flashbacks. She cannot sleep properly and often wakes screaming. She still suffers pain and headaches. Physically she can't do things she was once able to do. Her eyesight has been affected. She no longer has the physical and mental strength to socialise with friends and family as she once did. She fears she will never heal completely from the losses caused to her directly and from the loss of her bother.

Ms Jakaya Clulow

1. Ms Jakaya Clulow's Victim Impact Statement was read to me by her sister. She told me of her loss, anxiety and depression. She can no longer physically do what she once could. She has lost her independence, as she is now dependant on family to help with many simple things she once could do; like drying herself after a shower. More surgery is scheduled and the next may not be the last. She has been advised that her injuries mean she should not have any more children. She said "…today's sentence will never amount to the impact it has made myself, parents and siblings. In fact no amount of jail or justice will ever be enough. I'm the one who will suffer every day… I will be the one living a life sentence..."
2. The statements confirm evidence led at trial. They attest to harm of the kind that might be expected of the unlawful killing offence for sentence and the two other offences committed by Mr Butler only. I have no difficulty with accepting their contents: R v Tuala [2015] NSWCCA 8.

COVID-19

1. No specific evidence was led about the impact of COVID on either offender but when I come to synthesise an appropriate sentence I cannot ignore the impact of the COVID-19 pandemic. COVID-19 has entered our gaols. Both offenders have been in custody during the whole of the pandemic. Both have been subject to the considerable restraints, lockdowns and lack of access to work, programmes and visits brought in to reduce the chance of infection entering or spreading in the gaol system. Those restrictions will continue for some time: COVID-19 (coronavirus) Response, Corrective Services NSW; https://www.coronavirus.dcj.nsw.gov.au/services/corrective-services/impact-of-covid-restrictions - viewed 26/11/2021. Both offenders may face them again. These are relevant factors that must be synthesised along with all other matters.

Evidence

1. Mr Butler provided an affidavit to the court. He did not make himself available for cross-examination. What he set out must be read with considerable caution unless supported by other material before me or relatively uncontroversial: Lai v R [2021] NSWCCA 217 at [79]; R v Qutami [2001] NSWCCA 353.
2. I do not reject what he said in its entirety but his statements of good intentions carry no weight. They must be backed up by actions and do date he has done little to give me any confidence his assertions of good intentions will be carried out in custody or on release. For example; where he says he is "sociable in custody" that assertion does not match the facts before me for the recent sentence matters, his gaol discipline record or his criminal history.
3. Butler will not be released to parole until and unless the State Parole Authority (SPA) are satisfied that it is in the interests of the safety of the community to do so: s135 Crimes (Administration of Sentences) Act 1999. Release to parole must be earned. It is transparently obvious that only if he engages in treatment in custody and gets help with living skills will that be possible. Having an Aboriginal elder as a mentor would be an important step in this process.
4. Apart from a statement he helps younger inmates and has a job in custody, Butler did not put forward anything about his good character nor did he seek to address any fact relating to the offence nor did he profess any remorse. What he said was sad but the bulk of the material went only to matters supported by other evidence before the court going to what needs to be done if he is ever to lead a normal life in the community on release.
5. I received a report for Ms North, Forensic psychologist, letter from Shine lawyers; Affidavits from his mother, Ms R Butler and his partner, Ms Powell. None were required for cross-examination. Objection was taken to paragraphs [20] and [21] of his mother's affidavit. Ms O'Reilly did not read or rely on them those paragraphs and they are not part of the evidence before me.

Background

1. Butler's history and background is relatively uncontroversial. Most evidence about it comes from the affidavit of his mother and Ms North's report and can be matched with custodial records.
2. Born in 1992, Butler is an Aboriginal Australian. He was raised by his mother and stepfather with his siblings in the local area. He had some contact with his natural father when he was a teenager until his father's death in 2015. He reports a good childhood and home environment and the support of a large family. Nevertheless, Ms North describes his family background as "socially impoverished." He reports falling in with drug using cousins and his birth father, who had "a forensic history." He would run away from home and did not listen to his mother and stepfather showing "oppositional traits": Ms North at [15]. This is reflected in his custodial record. Associated "behavioural issues" were noted from primary school. He did not do well at High School. He was suspended twice and after he turned 15 did not return to school.
3. He reports taking up illicit drug use at 13. Since he was 14 he has regularly used methylamphetamine (ice) and Xanax but since he was17 or 18, he says, heroin has been his drug of choice. He is currently on the buprenorphine maintenance program.
4. He has two daughters. They have different mothers. He is in a supportive relationship with Ms Powell.
5. His mother reports that when released into the community Butler has trouble doing basic things; like arranging centre link payments or renting accommodation. He tends to hang around with old friends and fall back into using drugs and then crime. Again this is not controversial. It is tragically all too common. In 2011 the Victorian Sentencing Advisory Council published a report that concluded that: "[P]risons can act as a criminal learning environment in which prison sub-cultures - acting in opposition to the 'pro-social' or rehabilitative environment intended by the state - encourage and reinforce criminal behaviour. Prisons are 'marked by the presence of cultural values supportive of crime that can be transmitted through daily interactions' and, as a result, 'criminal orientations are potentially reinforced": Does Imprisonment Deter? A Review of the Evidence, Sentencing Advisory Council Victoria, April 2011,p. 126.
6. His partner Ms Powell says she and Butler remain close. Although they cannot have face to face meetings they speak on the phone many times a day and have AVL meetings. He has promised her he will change his ways when released and not hang around his old associates or use drugs,

Evidence

1. Now 36 Russell is an Aboriginal Australian. He reports growing up in living in Wollongong and the Australian Capital Territory (ACT). He did not give evidence. I have the benefit of; a Report from Mr Jones, psychologist, character references from; his father Mr W Clayton, his two sisters Ms Kylie and Ms Kayla Russell; his daughter, Ms K Storer and a cousin Mr Fletcher. None were required for cross-examination.
2. Mr Porter indicated submissions would be made as the weight particularly any second hand assertion that went to the circumstances of the offences or remorse. I accept that submission given the way the trial was conducted no weight could be given to them: Lai at [79]: Qutami ; R v JDX; JDX v R [2017] NSWCCA 9.
3. Mr Clayton told me he is in declining health and he needs his son now more than ever. He speaks of his son as a cheerful child who grew up to become a "great family man." His sisters speak of much loved older brother who was there for them as they grew up. They miss him and will support him on his release. Although they accept he hasn't always made good choices they still believe in him. His daughter wants him home for Christmas. Sadly, that is not possible. All his family offer their unconditional love and support.
4. His cousin told me he would help Russell when he gets parole and he can assist with gaining skills necessary to living a law abiding life in the community and break his associations with drugs and criminals.
5. Mr Jones sets out a family history that is uncontroversial. He reports a stable happy, supportive and loving family. They live in Wollongong but spent a few years in the ACT. Russell recalls some episodes of domestic violence within his parent's otherwise "happy and loving marriage." He left school in year 9 but by then had started illicit drug use and was already associating with other children who got into trouble.
6. Russell has had a two long term intimate relationships and has a number of children and grandchildren. For a period he was in a stable relationship. He had work and accommodation but as his criminal record indicates things went downhill from 2012. Since then he has used illicit drugs extensively and spent considerably more time in custody than in the community. He is now on buprenorphine injections to assist reduce cravings for illicit drugs. Mr Jones diagnoses him as having an Opioid Substance Disorder due to his longstanding heroin addiction.

Lack of Remorse

1. Both offenders' exercised their right to trial by jury. Both through their counsel mounted a concerted attack on the deceased and others in the Ford. Both as is there right maintain their innocence. No one can ever be punished or penalised for asserting a significant constitutional right to trial by jury but by exercising that right they lost the opportunity of having their sentence reduced for its utilitarian value and other values often associated with a guilty plea or other cooperation.
2. Butler has expressed no remorse. If he had I would have trouble accepting it.
3. Russell through his cousin and psychologist expressed some empathy for what Mr Merritt's family have had to go through. Given how the trial was conducted and the continued assertion the victims were impaired because of their use of illicit drugs or alcohol (Russell at [14]) that second hand assertion can be given no weight in mitigation of penalty.

Diminished Moral Culpability in reduction of sentence

1. An offender's background can be taken into account in mitigation of sentence. This is particularly so where there is material before the court that their background impacted on their moral culpability for the crime. That principle stems from the recognition that in sentencing decisions; immaturity, social disadvantage, a childhood deprivation (such as exposure to violence and alcohol abuse), trauma (including as a victim of crime) and mental or intellectual incapacity (often in combination) frequently precedes the commission of crime: Kennedy v The Queen [2010] NSWCCA 260 at [53]; R v Millwood [2012] NSWCCA 2 at [69]; Muldrock at [54] & [58]; Bugmy at [40] and [45]; R v AWF (2000) 2 VR 1; [2000] VSCA 172; Nasrullah at [12]; KT v R [2008] NSWCCA 51; Clarke-Jeffries v R [2019] NSWCCA 56.
2. Butler and Russell both grew up in relatively happy and supportive families. But both through the influence of other family members were also exposed in childhood to drugs and crime. This cannot be ignored. Their respective histories demonstrate some social deprivation and will be given "full weight:" Bugmy v The Queen at [41] and [43]. Further, both have been repeatedly imprisoned in the fundamentally violent environment of our Juvenile Justice and prison system. Those environments have helped make the men who committed these offences.
3. The history of both offenders demonstrates that they resort to violence when frustrated. While their backgrounds help explain this, such that their moral culpability for the inability to control that impulse may be reduced, their apparent inability to control the violent response to frustration increases the importance of protecting the community from them: Bugmy at [44]. Reduced moral culpability means in turn that the retributive effect and denunciatory aspect of a sentence that is appropriate to a person of ordinary capacity will often be inappropriate. Such matters must also be given "full weight:" Some, such as childhood deprivation, which operates much more in Butler's case than Russell's, do not diminish over time.
4. Attributing "full weight" in every case is not to suggest that it has the same mitigatory relevance for all the purposes of punishment as social deprivation may impact on those purposes in different ways: Engert v R (1995) 84 A Crim R 67. There are here countervailing factors, such as the protection of the community, which might reduce or eliminate its effect.

Institutionalisation

1. The material before me shows that both offenders have been institutionalised. Accordingly an attempt should be made in both the community and the offender's interests to ensure that there is a sufficient period of conditional and supervised liberty to ensure protection of the community and to minimise the chance of recidivism.
2. That effort must be made even in the face of entrenched and serious recidivism and while it may justify a finding of special circumstances that consideration has to be balanced with many other competing factors: Jackson v R [2010] NSWCCA 162 at [24]; Jinette v R [2012] NSWCCA 217 at [103].

Parity

1. Each offender's sentences must also be determined by having regard to the circumstances of the other co-offender and their respective degrees of culpability - like must be compared with like. This principle is known as parity. It is the classic example of the need to, so far as possible, ensure equal justice: Green v The Queen (2011) 244CLR 462; Afu v R [2017] NSWCCA 246. In like cases that principle can also encompass the structure of a sentence and its non-parole period: Lau v R [2010] NSWCCA 43; Bell v R [2019] NSWCCA 271.
2. Proper application of the parity principle does not necessarily mean that each offender is sentenced on the basis their individual actions had the same objective criminality: JW v R; Johnson v R [2010] NSWCCA 124. Different personal and criminal histories may "justify a real difference in the time each will serve in prison:" Postiglione v The Queen (1997) 189 CLR 295.
3. Here the Crown accept that Butler's acts and moral culpability are far in excess of Russell's: Crown submissions [16].
4. Further Russell was not on parole or other conditional liberty. His criminal record is not as bad. He has demonstrated for a few years before 2012 that he can, if stable and drug free, lead a normal community life. He has strong family support. It may prove effective this time.
5. Sadly although I am sure well-meaning those who support Mr Butler have not to date exerted much positive influence on him. I have already sentenced a number of people who Butler persuaded to help him evade arrest, including Ms Powell. Their offences occurred after the death and injury. Their facts situations bear no similarity to the matters for sentences today. No issue of parity arises in relation to them. They include Ms Green. On 27 August 2021 I sentenced her to 1 year 4 months imprisonment to be served subject to an Intensive Corrections Order. I took into account her late plea and 5 months pre-sentence custody. Although Ms Green was initially charged with murder as an accessory to Butler and Russell those charges were not proceeded with.

Other cases

1. I have had regard to the many other cases to which I have been referred, including those set out in Ms O'Reilly's table and those summarised in Byrne.
2. The guidance offered by appellate courts and other decisions is always welcome. The consistent application of principle must always be considered. What was done in other cases does help guide the exercise of my sentencing discretion however each case and each offender is individual: Hili v The Queen (2010) 242 CLR 520; Barbaro v The Queen (2014) 253 CLR 58 at [74]. "…sentencing is a discretionary judgment and the mix of factors that must be weighed in determining the appropriate sentence will never be precisely the same as in a past case or cases:'' The Queen v Pham [2015] HCA 39 at [47].

Submissions

1. I am indebted to Mr Porter, Crown Prosecutor, Mr Terracini SC, for Russell and Ms O'Reilly, Public Defender for Butler, for their comprehensive written and oral submissions. I hope this judgment does justice to them. The written submissions carefully, by reference to authority, set out relevant principles. There was no significant disagreement about matters of principle and their comparative cases.
2. I do not intend to explicitly refer to each of the matters raised but I have considered and sought to address them in this judgment and in coming to my determinations as to the appropriate sentence in each matter.

Mr Terracini

1. Mr Terracini submitted that finding of fact would be made more difficult because many witnesses were impaired by the drugs they had taken. He said once the firearm allegations were put to the side (as they must) there was little actually done by Russell to implicate him in the manslaughter. Mr Terracini said similarly his role in any intimidation was not serious, significant nor lengthy.
2. He submitted that the sentence should start from when Russell first came in custody, as the offences committed in custody were "relatively trivial." He asked for a sentence that properly reflected what Russell had done and the limited role he played once the critical aspect of the crime commenced; that is, the after the Corolla entered the M1. He asked me to structure an individual sentence for Russell reminding me that in sentencing "the only golden rule is that there is no golden rule": Geddes v R (1936) 36 SR (NSW) 554 at 555-556.

Ms O'Reilly

1. In oral submissions Ms O'Reilly urged me not to impose a 'crushing' sentence": MAK v R; MSK v R [2006] NSWCCA 381 and R v Clinch (1994) 72 A Crim R 301 at 306. That is, not to impose a sentence that would crush all hope for a productive life on release or cause Butler to abandon hope and not cooperate with gaol authorities, reducing his chances of rehabilitation. Butler's sentence, she said, should start soon after he came into custody; as the breach of parole was solely referable to these matters and as total accumulation on balance of parole and the other sentences imposed since arrest would lead to a disproportionate overall term.
2. Ms O'Reilly noted that while Butler had solid family support throughout his life the influence of his birth father may have been a significant factor in his developing anti-social and criminal attitudes while still too young to make rational and informed choices. A pattern had been set when he was young and needs to be broken. Gaol could not do that as Butler had never learned how to lead a normal life in the community and he couldn't do that in gaol. She said Butler is still young. He still has time to turn his life around. He has turned a corner by entering the buprenorphine program. He has accepted he must do something about his drug addiction and that he must have a structured return to the community preferably via a residential drug rehabilitation program; as his psychologist, Ms North recommends.

Mr Porter - Crown Prosecutor

1. Mr Porter submitted so far as each driving offence was concerned Butler had demonstrated "a total abandonment of responsibility". His moral culpability was high.
2. On the other hand he conceded the Russell's moral culpability was "somewhat less." He took me to aspects of the evidence where demands were made by Russell at the Service station and fear spoken of by occupants of the Ford as it left the Service Station at Cringilla.
3. So far as both offenders' histories were concerned he said the impact of their childhood experiences on their moral culpability did not warrant as much weight as others cases where there was evidence of trauma or deprivation of the sort referred to in Bugmy.
4. Butler's commission of these offences while on parole and bail, and his behaviour in custody since arrest, he said would give me no confidence he would as he promised in his (untested) affidavit change. His attitude of disobedience to the law indicated greater weight must be given to those purposes of sentencing that require retribution, personal deterrence and protection of the community: Veen (No 2); Tabbah v R [2019] NSWCCA 324 at [105].
5. Mr Porter submitted that while Russell was not on conditional release and his recent gaol history was not as bad as Butler's, he too had done little while in custody to earn leniency. To the contrary his sentence also required weight be given to retribution, personal deterrence and protection of the community.

Structure of sentence

1. When I sentence Butler I am required to impose an appropriate sentence for each of the 5 offences. I must also structure the sentences such that the overall or aggregate sentence is just and appropriate to the totality of his crimes: Mill v The Queen (1988) 166 CLR 59 at 62-63. The sentence must also take into account the matter the subject of the appeal, his balance of parole and the sentences imposed since his arrest
2. Each count for sentence here involved discrete acts of criminality however each count had some common features and the purposes of sentencing apply to each and those purposes overlap. The sentences should be partly cumulative however the aggregation of all of the sentences must be a 'just and appropriate measure of the total criminality involved': Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26 at 307-308 & Cahyadi v R [2007] NSWCCA 1 (2007) 168 A Crim R 41. I note that: "When a custodial sentence is to be imposed which will be cumulative upon, or which would overlap with, an existing custodial sentence, the judge must take into account that existing sentence so that the total period to be spent in custody adequately and fairly represents the totality of the criminality involved in all of the offences to which that total period is attributable": R v Gordon (1994) 71 A Crim R 459 at 466; cited with approval in Postiglione v The Queen.
3. Sentences and the reasons for them should be as transparent as possible. Everyone; whether victims, offender, court or community should know why a specific sentence was imposed. That said, sentencing involves intuitive judgments be made. Different factors require different considerations. Every offender and every sentencing exercise has it individual features. Pragmatic decisions need to be made and the perspectives of the victims and or community and the offender taken into account.
4. When sentencing for multiple offences, the nature of the charges may compel concurrency on the other hand, particularly where the offences are separated in time and or relate to multiple victims, some accumulation is required. But care must then be taken to ensure that that the accumulation of a number of lengthy periods of imprisonment does not result in a disproportionate level of punishment. Disproportionate severity may arise because: 1. The offender tends to become institutionalised serving a long sentence in prison, or 2. Because the length of the sentence should have regard to the proportion of the offender's expected life which will be spent in custody 3. The value of any steps already taken which promote rehabilitation (an important consideration in sentencing) may diminish. 4. There is a perception of the public interest, consistent with a degree of leniency, that any hope of a normal life after the end of the imprisonment not be crushed.

Start dates

1. After his arrest on 30 May 2019 Butler served just under 6 months for the balance of his parole on the 2018 sentence. These matters were the catalyst for that breach. He then spent a month in custody on remand solely referable to these matters but since 20 December 2019 he has been serving sentences for offences committed while in custody. The last non-parole period for those sentences extends to 2 October 2022.
2. While Butler breached the fundamental promise given when parole is granted - to be of good behaviour, as I have already taken into account this abuse of his conditional liberty it should not be double counted. He must have credit for the 1 month served solely referrable to this matter and some credit for a significant portion of his balance of parole: Callaghan v R [2006] NSWCCA 58: Hollaway v R [2016] NSWCCA166: s 24(a) Crimes (Sentencing Procedure) Act 1999.
3. After his arrest Russell served two days solely referable to these matters. He then served a 3 month sentence and then another 3 months solely referable to these matters from 28 May 2019 to 22 August 2019, from that date until 13 March 2020 he was serving other sentences for offences committed in custody. He must have full the benefit of the 3 months 2 days (87 days) served before 13 March 2020
4. I must also determine when each sentence is to commence taking account the principle of totality discussed above. Accordingly Butler's aggregate sentence will start on 30 May 2021, two years after his arrest for this matter. Russell's sentence will start on 28 October 2019, 5 months after his arrest for this matter.

Special circumstances

1. The sentences imposed on each offender must be partly accumulated on other sentences. For that reason alone a finding of special circumstances must be made to increase time on parole and allow both offenders more opportunity for longer supervision and monitoring on release. Both will require assistance adjusting to normal community life. Both will require ongoing assistance to help prevent relapse into drug use.
2. If parole conditions are met studies have shown parole supervision reduces the chances of recidivism: Parole Supervision and Re-offending: Wai-Yin Wan, Suzanne Poynton, Gerard van Doorn and Don Weatherburn (2016) Australian & New Zealand Journal of Criminology v149. No.4. p 497, 2011, http://www.bocsar.nsw.gov.au/Documents/parolesupervisionandreoffending.pdf
3. However, neither offender has shown any indication to engage meaningfully with parole in the past. That is undoubtedly partly due to their institutionalisation but I can have no confidence that any opportunities offered by extensive parole will benefit the community. I am also mindful of a requirement that the minimum period for which the offender should be imprisoned must also properly reflect the gravity of his offence or offences and the other purposes of sentencing: R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 at [59].
4. I also take into account that such is the length of Butler's aggregate sentence and the total minimum time since he went into custody that the period on parole generated by a modest finding of special circumstances because of accumulation will be more than adequate to meet the matters requiring greater monitoring and supervision.
5. The percentage reduction for each offender is not the same because there is a greater degree of accumulation on existing sentences for Butler.

Synthesis

1. A judge of this court too often has to deal with the devastating impact of motor vehicle collisions and the injuries and loss of life caused. The court on behalf of the community recognises the enormity of a fellow citizens' death and the impact of his death on family; a harm that will last as long as they live.
2. No life can ever be equated with a period of imprisonment; no gaol term can return a loved one; and a life should never be measured simply by the punishment meted out to the offender: R v McKeown [2013] NSWDC 22; R v Smith [2016] NSWCCA 75 at [18] & [19].
3. In the matter of Butler only: the court on behalf of the community also recognises the lasting physical, emotional and psychological harm caused Ms Merritt and Ms Clulow as primary victims. Their Victim Impact Statements will be taken into account. The sentence must attempt to vindicate the dignity of each victim: Munda at [58].
4. A court sentencing an offender must take into account all relevant considerations, including the case for the offender and the requirement that sentencing principles be consistently applied. This mean a direct correlation between harm done and time to be served is impossible. Ms Merritt and Ms Clulow should never equate or measure their injury with the punishment actually inflicted on the offender.

Manslaughter - Butler and Russell

1. This was a very serious example of vehicular manslaughter. Butler's driving the Corolla at high speed in pursuit of the Ford on the M1 for over 10 kilometres showed he had totally abandoned any responsibility as a road user. His driving led directly to the death of Mr Merritt. He did so for a base motive an attempt to extort money from a passenger in the vehicle. He did so knowing there were four people in the Ford and his actions were aimed solely at intimidating them. He could have stopped the pursuit at any time - he did not.
2. Russell must also bear criminal responsibility for Mr Merritt's death but his direct actions, which were designed to intimidate Mr Jackson and others in the car, preceded the chase. There is no evidence he did anything during the chase to urge Butler except to encourage him by his presence alone as their aim, the intimidation of Mr Johnson, was the same. His role was thus significantly less than Butler's, as was his moral culpability. Once it began only the driver had the capacity to stop the pursuit.
3. Since 2012 Russell has lived outside the law or been in custody as a result of crimes committed against others in the community. His family stand by him but he had abandoned his responsibility for them. He says he will take the help they offer. He will have to deal with his longstanding drug problem first. The depot buprenorphine injections may help him deal with his longstanding drug addiction but he will need to engage in a rehabilitation programs in custody and on release if he is going to change, and he will have to make significant changes if he is to break the pattern set in childhood and continued since 2012.

Mr Butler's other matters

1. Sadly, since he was a child Butler has spent most of his life living outside the law or subject to detention and imprisonment. He has never participated in lawful community life. His friends have been drug users and criminals. His pro-social family have exerted little influence on him. His first response is defiance. He does not know how to respect the law or other people's property or rights to go about their business peacefully. He has harmed others, he had taken their property he has put others at risk. He has drawn others into his criminal activities. He has harmed himself and those who love him.
2. Despite what he said in his untested affidavit Butler has also had some continuing problems in custody. While he now has a job his gaol discipline record is poor. As he grows older he may come to realise that defiance is not in his own interest and could mean he serves his entire sentence in custody.
3. He has never had an opportunity the opportunity, as an adult, to live a normal life in the community. He has not and will not learn how to do so in custody. While no punishment should ever exceed what is called for he must be released into the community and it is essential every effort be made to encourage him to learn the skills necessary. As he grows older and matures I trust he will appreciate he must take advantage of that assistance.

Summation

1. A number of competing considerations have to be synthesised. They do not all point in the one direction. A proper sentence has to recognise the harm done and be proportionate to that harm. A sentence marks the Court's view of the seriousness of the crime, and lets the offender and other wrongdoers know the retribution which will fall upon them if they commit similar crimes: R v Herring (1956) 73 WN (NSW) 203 at 205; Ryan v The Queen (2001) 206 CLR 267. Further, sentencing courts have an obligation; to vindicate the dignity of each victim; to express the community's disapproval of the offending, and to afford such protection as can be afforded by the state to the vulnerable against repetition of the offending.
2. Another function of the criminal law has been to discourage victims and their friends and families from resorting to self-help, and the consequent escalation of violent vendettas between members of the community: Munda at [58].
3. Ultimately, sentences are about community protection. While the community is protected to some extent while someone is in gaol, both Butler and Russell must be released. In the past they have been released so ill-equipped to deal with normal community life they have soon resumed criminal activity. If things are to change and I am far from optimistic they will, every effort has to be made to put plans in place to assist them make the transition back to the community. This assistance is required in the community interest not just that of the offenders, who to date have done little to earn any leniency.
4. As manslaughter is a "serious and violent offence" the offenders are advised of the existence of the Crimes (High Risk Offenders) Act 2006 that legislation and its application to them: s 5A & 25C (NSW) Crimes (High Risk Offenders) Act 2006.

Appeal:

1. Intentionally damage property by fire - Appeal dismissed. All orders of the magistrate confirmed.

Summary matter on s 166 Certificate

1. Drive while disqualified - s10 A Crimes (Sentencing Procedure) Act 1999 and disqualified from driving for 6 months

Aggregate sentence

1. The sentence will start two years after you entered custody.

Indicated sentences: 1. Manslaughter - 10 years 2. Dangerous driving causing grievous bodily harm Ms Merritt - 3 years 6 months imprisonment. Disqualified from driving for 2 years. 3. Dangerous driving causing grievous bodily harm Ms Clulow - 3 years 6 months imprisonment. Disqualified from driving for 2 years 4. Police pursuit - (5% reduction for guilty plea) - 1 year 5 months imprisonment. Disqualified from driving for 1 year. 5. Take and drive conveyance (5% reduction for guilty plea) - 1 year 5 months imprisonment.

Aggregate sentence

1. The total aggregate sentence is 13 years.
2. There will be a non-parole period of 9 years 3 months commencing 30 May 2021 and expiring 29 August 2030. The balance of the sentence of 3 years 9 months is to commence upon the expiration of the non-parole period on 30 August 2030 and expiring on 29 May 2034.
3. You will be eligible for consideration for release to parole at the expiration of the non-parole period on 29 August 2030
4. The drivers licence disqualification periods commence from today but will be suspended while you in custody. There will be accumulation between incidents and accumulation on pre-existing disqualification periods.

Orders - Russell

1. The sentence will start 5 months after you entered custody.
2. You are convicted and sentenced to a term of imprisonment of 4 years consisting of a non‑parole period of 2 years 11 months to commence on 28 October 2019 and expire on 27 September 2022.
3. You will be eligible for consideration for release to parole on 27 September 2022 to serve the balance of term of 1 year 1 month to commence on 27 September 2022 and expire on 27 October 2023.

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