R v CAHILL; R v BYRNE

Discount for the pleas of guilty

1. Ordinarily where an offender is committed for sentence from the Local Court it is uncontroversial that the offender is entitled to 25% for the utilitarian value of the plea - see generally R v Thompson & Houlton (2000) 49 NSWLR 383; [1999] NSWCCA 309, R v Borkowski (2009) 195 A Crim R 1; [2009] NSWCCA 302 at [32]. However in this matter despite a concession that "it appears the authorities are against me" (p 35:34 on 29 April 2020) the Crown submits that because the manner in which the matters were conducted in the Local Court, including a defended committal, the utilitarian value of the plea should be 15%. The history of the matter before committal for sentence is set out in detail at paragraphs 62 to 66 inclusive of the Crown's written submissions (MFI 1 on sentence). In this regard the Crown said in oral submissions (p 35:46): "Well there are cases where discounts for less than 25% have been given to people who plead guilty in the Local Court. It has been acknowledged. It's a matter for your Honour I don't take it any further".
2. Be that as it may, despite the Crown not providing any relevant authorities to support the stance the Crown takes, I am obliged to examine the authorities and come to a conclusion on this issue. I have gone to considerable trouble to deal with this matter, principally to ensure that this same controversy does not continue to surface.
3. It is significant that both offenders were initially charged with Dangerous Driving Occasioning Death, contrary to s 52A of the Crimes Act. The charge of Manslaughter was brought against both offenders in the course of the proceedings in the Local Court and at a time after the Office of the Director of Public Prosecutions assumed carriage of the matter.
4. In R v Borkowski Howie J (McClellan CJ at CL, Simpson J agreeing with brief additional comments) said at [31]: "As a matter of general practice, the maximum discount for the utilitarian value of the plea of guilty should be awarded only to those accused persons who plead guilty in the Local Court and continue that plea of guilty in the District Court. There may be a valid reason in the exercise of discretion for awarding the maximum discount where the plea of guilty does not occur until the District Court but that would be exceptional and arise from the peculiar factual situation in a particular case. The amount of the discount cannot depend upon the practice of the particular court based upon its administrative arrangements. It is difficult to see how, in the usual case, a plea of guilty on arraignment could justify a discount of more than about 15 per cent. There was nothing in the present case that justified a discount above that range."
5. A little earlier in his judgment in Borkowski Howie J said at [27]: "In Thomson and Houlton, the Chief Justice, when discussing the extent of the discount for the utilitarian value of the plea, stated: '[154] There are however two circumstances which will generally affect the appropriate level of discount in a particular case: (i) The time at which a plea is entered. A plea entered at committal has a more significant utilitarian benefit than a plea entered at first listing, which in turn has the greater benefit than a plea entered at the beginning of trial. (ii) The complexity of the issues about which evidence will have to be gathered and adduced affects the value of the plea. The greater the difficulty of assembling the relevant evidence and the greater the length and complexity of the trial, the greater the utilitarian value of a plea.'"
6. In Zhao v R [2016] NSWCCA 179 Adams J (Hoeben CJ at CL, Button J agreeing) said at [66]: "Any reduction in sentence made in recognition of the utilitarian value of a plea of guilty is a matter for the discretion of the sentencing judge. The principal consideration is the timing of a plea: De Angelis v R [2015] NSWCCA 197 at [55] per Simpson JA, with whom Button and Fagan JJ agreed…"
7. In De Angelis v R Simpson JA said at [55]: "Two principles concerning the reduction to be allowed in respect of pleas of guilty are well established. The first is that any such reduction is a matter of discretion lying within the province of the sentencing judge, and not readily upset on appeal: see House v The King [1936] HCA 40; 55 CLR 499. The second is that the principal consideration is the timing of a plea; this is related to its utilitarian value."
8. Johnson J (Bathurst CJ, Hoeben J (as his Honour then was) agreeing) in R v AB [2011] NSWCCA 229 said at [30]-[33]: "A person who pleads guilty to a criminal offence is, of course, entitled to dispute facts (beyond the elements of the offence) for the purpose of sentence. Where such a dispute occurs, any contested questions of fact adverse to an offender, must be established to the criminal standard of proof: O'Neil-Shaw v R [2010] NSWCCA 42. An offender is not to be penalised because he or she disputes certain facts on sentence and requires the Crown to prove those facts. [31] The position is analogous to that of a person who goes to trial, who may not be penalised for the manner in which the defence at trial was conducted: Siganto v The Queen [1998] HCA 74; 194 CLR 656 at 666-667 [30]-[34]. However, as is made clear in Siganto v The Queen , a person who goes to trial is not entitled to mitigation for a plea of guilty. [32] Likewise, a person who pleads guilty but puts the Crown to proof on certain factual issues and who loses that dispute, is not entitled to the same discount for a plea of guilty, on utilitarian grounds, as a person who does not require such a contested hearing. [33] These observations will have no application to the determination of the present Crown appeal. However, as a matter of general principle, this Court should state that the utilitarian value flowing from a plea of guilty is not a fixed element, and is capable of erosion as a result of the manner in which the sentencing hearing is conducted. This involves no more than an acknowledgment of the fact that what may be gained in utilitarian terms as a result of the avoidance of a trial may be lost, also in utilitarian terms, by way of a protracted sentencing hearing involving the adducing of evidence and the consumption of public resources for a purpose ultimately determined adversely to an offender."
9. Bathurst CJ in brief additional comments in R v AB at [2]-[3] said: "In par [33] of his judgment, Johnson J emphasises that, as a matter of general principle, the Court should state that the utilitarian value flowing from a plea of guilty is not a fixed element and is capable of erosion as a result of the manner in which the sentencing hearing is conducted. I agree. Whilst, as Spigelman CJ pointed out in R v Thomson & Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383 at [152], the primary consideration for the extent of a utilitarian discount was the timing of the plea this should not obscure the fact that there may be circumstances as Johnson J has pointed out where the utilitarian value may be eroded. Equally, there may be some exceptional circumstances in which it is appropriate to give a full utilitarian discount for a plea, notwithstanding the fact that it has not been entered at the earliest opportunity. [3] That is not to say that sentencing courts should not generally continue to follow the approach in R v Borkowski [2009] NSWCCA 102; (2009) A Crim R 1, but merely that the principles have to be applied by reference to the particular circumstances in any case."
10. R v AB was cited with apparent approval (by RA Hulme J, Bathurst CJ, Hall J agreeing) in Milat & Klein v R [2014] NSWCCA 29 at [151]-[152].
11. The Crown relied heavily on the procedural history of the matter in the Local Court to justify the submission that the utilitarian value of the plea was worth something less than 25%. Byrne was charged on 25 October 2017 and Cahill on 6 November 2017 with Dangerous Driving Occasioning Death. Early in 2018 the charges were increased to the charge of Dangerous Driving Occasioning Death in the aggravated form. In May 2019 a two day defended committal is held in the Local Court at the conclusion of which both offenders offer to plead guilty to a charge of Aggravated Dangerous Driving Occasioning Death. The matter was adjourned. On 9 August 2019 Cahill offers to plead guilty to Manslaughter and on 22 August 2019 Byrne makes the same offer. The committal dates have already been set out. Johnson J in R v AB made the point that the utilitarian value of the plea can by eroded because of the means by which the sentence hearing is conducted. It seems to me that the Crown gets no support for the contention that the discount for the plea should be something less than 25% from what is said in R v AB.
12. The Crown may get some support from the decision in McNaughton (2006) 66 NSWLR 566; [2006] NSWCCA 242, particularly at [43]-[49]. However, it is not immediately obvious from the judgment whether the offender in that case was committed from the Local Court for trial or for sentence. In any event, it seems that the later decision in Borkowski is accepted as the authority on discounts for pleas of guilty with offending contrary to state legislation. See for example the recent decision of Bae v R [2020] NSWCCA 35 at [52]-[53] per Johnson J, which decision was applied in Hijazi v R [2020] NSWCCA 97 at [37] per Walton J (Bell P, Johnson J agreeing).
13. Superficially the Crown may also get some support from what Howie J said in R v SY [2003] NSWCCA 291 at [87], namely: "Further, in R v Dib [2003] NSWCCA 117 this Court held that the fact that the plea to the lesser offence is offered at the first reasonable opportunity does not automatically mean that a full discount for the plea should be given. Hodgson JA, with whom Barr J agreed, stated: '[5] If a plea is entered a long time after a person is first charged, but at a time when a lesser charge is substituted for a greater charge, the advantages to the administration of justice are less, even though the plea may have been made at the earliest opportunity. There is in any event no entitlement to a 25% discount; and the fact that in this situation there are less advantages to the administration of justice can justify a smaller discount. [6] This approach may mean that in some cases an offender may obtain a lower discount just because the prosecuting authorities initially brought a greater charge than that ultimately pursued, so that the delay in the plea of guilty was not the offender's fault. But this is consistent with the nature of the discount as being at least in part a recognition of practical advantages, and not merely a recognition of mitigation of culpability.'"
14. However, this needs to be looked at in the context of what his Honour said at [86], namely: "It does not always follow that a plea is entered at the first reasonable opportunity simply because the plea occurs after negotiations with the Crown once the offender has been committed for trial."
15. The decisions of Dib and SY were referred to by Howie J in his judgment in the decision of Sullivan & Skillen v R [2008] NSWCCA 296 at [15] - [16].
16. The Crown may also get some support from the decision of Lehn v R [2016] NSWCCA 255 where Bathurst CJ (Beazley P agreeing, RA Hulme and Schmidt J agreeing both with separate additional comments, Wilson J dissenting as to the outcome of the appeal) said at [62]: "In that context, it must be emphasised that the grant of the utilitarian discount of 25% for a plea entered at the earliest possible opportunity is not mandatory. Section 22(1A) of the Sentencing Procedure Act provides that a lesser penalty imposed under that section must not be unreasonably disproportionate to the nature and gravity of the offence. Although it is well accepted, consistent with the guideline judgment in R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309 (Thomson), that a utilitarian discount of 25% will generally be granted for a plea entered at the earliest possible opportunity, it remains a matter for the discretion of the sentencing judge: Thomson at [153]; see also Marrow at [39]."
17. However, the initial statement by the Chief Justice is immediately followed by reference to s 22(1A) of the Crimes (Sentencing Procedure) Act (1999).
18. I note that in Lehn v R in the Court of Criminal Appeal the Crown conceded that the sentencing judge at first instance should have applied the 25% discount for the utilitarian value of the plea of guilty. However it seems that that concession was because of a denial of procedural fairness.
19. Adamson J (Hidden and Davies JJ agreeing) in Marrow v R [2015] NSWCCA 282 said at [39]: "Furthermore, although the question of the percentage discount for a plea of guilty pursuant to s 22 of the Act is a matter of discretion, there is a general expectation (although not a rule) that, where a plea is entered at the earliest available opportunity, the maximum discount of 25% will be applied. The reason for this is that the discount for the utilitarian value of the plea is determined largely by the timing of the plea: see the Guideline Judgment of R v Thomson; R v Houlton (2000) 49 NSWLR 383 at [154] and R v Borkowski [2009] NSWCCA 102 at [32(1)]. In the present case, there was no indication from his Honour, prior to the imposition of the sentence, that this would not occur. Moreover, the Crown, by accepting that the plea was entered at the first available opportunity, can be taken to have accepted that the highest discount was appropriate."
20. In the matter presently under consideration the two offenders pleaded guilty in the Local Court and were committed for sentence. The offence to which both offenders have pleaded guilty is Manslaughter that carries a maximum penalty of 25 years imprisonment. It is entirely appropriate that an offender have a full and complete understanding of the case against them before entering a plea of guilty to such a serious charge, which is a charge of homicide. There are agreed facts in respect of each of the offenders in the District Court. At "an early stage" must mean at an early stage after the full nature of the case is known to the offenders. If taken literally it could potentially mean the first return date.
21. I note that this matter was committed before the commencement of s 25D of the Crimes (Sentencing Procedure) Act. Had this matter been committed for sentence after that commencement the offenders would have been entitled to the 25% discount for the pleas automatically by virtue of that section.
22. It is regrettable that the Crown's submission as to the utilitarian value of the plea being reduced by reason of the conduct of the committal proceedings was not accompanied by some authority from an appellate court or even a decision of this Court rather than the Crown simply submit, "It's a matter for your Honour and I don't take it any further". After several hours of research I have been unable to find any authority that supports the Crown's position that a discount of 15% should be applied in this matter in circumstances where the offenders were committed for sentence and maintained that plea in the District Court and where as opposed to situation in R v AB there was no dispute on the facts.
23. Given the seriousness of the charge, taken with the fact that the pleas of guilty were entered in the Local Court and maintained in the District Court with an agreed set of facts, I am of the opinion that I should follow what Adamson J in Marrow v R described as the "general expectation". I am firmly of the opinion that both offenders are entitled to the full 25% discount for the utilitarian value of the pleas of guilty.

Facts

1. To add to the complications in this matter there is a separate set of facts for each offender. This matter is very much one of a joint criminal enterprise. The statement of facts in each matter is within the respective Crown tender bundles, exhibit A for Cahill and exhibit B for Byrne.
2. A detailed description of the scene would have been useful for anyone reading these reasons who is not familiar with the scene. An attempt by me during the preparation of these reasons to have the parties agree on a physical description of the scene was unsuccessful. Counsel for one of the offenders was understandably concerned about the expansion of the agreed facts by reason of that description. Mr King at the sentence hearing observed (p 21:07), "I think we all know what Coleman Street is like". The difficulty is of course that many who read these reasons will not know what Coleman Street is like.
3. At the sentence hearing on 29 April 2020 Mr King tendered a photograph of the scene, which is reproduced hereunder. Coleman Street is the wide street generally east-west (or left to right on the page) in approximately the middle of the photograph.
4. The TAFE College is approximately 290 metres from the traffic lights at the intersection of Edmondson and Coleman Streets in Wagga Wagga. The Wagga Wagga High School is located on the south eastern side of the intersection and another High School (Kildare College) is located on the north western corner of the intersection. Coleman Street runs generally east-west and Edmondson Street runs generally north-south. There are two lanes in each direction for about 65 metres to the west of the intersection. The sign-posted speed limit in the area is 50 km/h. The intersection is controlled by traffic lights.
5. On Monday 23 October 2017 both offenders, who were apprentices, were attending the Wagga Wagga TAFE College for the academic component of their automotive courses. Shortly before 10am the class that both offenders were attending had the morning break or "smoko". It was common practice for TAFE students to go to a nearby café some 2 kms from the TAFE College.
6. Cahill, intending to drive to this café took the driver's position in his vehicle, a VT SS model Commodore sedan registered DCL-33B. He had two passengers who were also students, namely Connor Henderson and Bradley Heinecke. Cahill had a P2 Provisional Driver Licence. Byrne also intending to drive to the café took the driver's position of his vehicle a VE Commodore sedan registered CSM-60L. Byrne held a P1 Provisional Driver Licence. He too had passengers, namely Matthew Frost and Nathan French.
7. The vehicles being driven by the offenders pulled up side-by-side in Coleman Street at the intersection of that street and Edmondson Street. Byrne's vehicle was in the second lane, i.e. closest to the centre median and Cahill's vehicle was in the first lane, i.e. closest to the gutter. They were facing a red signal.
8. The agreed facts in respect of Cahill recite at paragraph 8, "Whilst the Crown does not allege the race was planned prior to the offenders' attendance at the traffic lights, upon the light turning green, both offenders accelerated aggressively through the intersection and commenced a street race". For reasons that are not immediately apparent the concession "Whilst the Crown does not allege the race was planned prior to the offenders' attendance at the traffic lights" is not contained within the facts that relate to Byrne. Be that as it may, the matter proceeded on the basis that there was no agreement between them or planning of the race prior to the attendance at the intersection. I note that this was the subject of an exchange between the Crown and Mr King at (p 41:22) at the sentence hearing. Mr King submitted (p 41:28) that, "…But the Crown has deliberately and intentionally deleted that concession from the facts in Mr Byrne's case at para 8". The Crown responded, (p 41:35), "I reject that. It's a compromise document between the parties. If Mr King wanted it in there, it would be in there". There should have been one set of facts common to both offenders.
9. The facts in respect of both offenders recite that a large number of independent witnesses described both seeing and hearing the two vehicles racing each other at very high speeds.
10. During the street race the deceased Craig Smith was seated in the driver's seat of his Ford Falcon utility outside his home in Coleman Street. His vehicle was parked on the left side of the road (southern side of Coleman Street), i.e. the same side of the street on which the offenders were travelling.
11. At some point shortly before the impact Byrne, who was travelling well in excess of the sign posted speed limit, caused his vehicle to move to the incorrect side of the road to overtake Cahill's vehicle. However, by the point (I presume that means the precise time of the impact) Byrne was travelling in his correct lane, i.e. the west bound lane.
12. At about the same time the deceased Mr Smith commenced a lawful u-turn from his position on the southern side of Coleman Street, intending to travel in an easterly direction towards the intersection of Coleman and Edmondson Streets. As he did so the front of Byrne's vehicle impacted heavily with the driver's door of the utility. The impact was such that it forced the deceased's vehicle to travel approximately 30 metres in a westerly direction along Coleman Street where it came to rest with Byrne's vehicle still attached. The agreed facts in respect of Byrne note that the vehicles came to rest on the incorrect side of the road.
13. The facts in respect of both offenders include that the tray of the deceased's vehicle was almost completely detached from the cabin by the force of the impact. The facts in respect of Byrne go on to record that the transmission assembly of Byrne's vehicle was completely detached from the motor and chassis of the vehicle.
14. Mr Craig Smith was killed instantly by the impact.
15. Byrne and French were able to free themselves from Byrne's vehicle. Frost was trapped in the front passenger's seat and was freed by rescue personnel. Byrne sustained lacerations to his hands. Byrne was seen to be upset and crying when he exited the vehicle. He admitted to a witness at the scene that the accident was his fault and that he had been driving at over 100 km/h.
16. Cahill's vehicle was travelling behind Byrne's vehicle at the time of the impact and avoided the collision. Cahill pulled over and parked his vehicle near the crash site and he and his passengers went to the aid of the deceased and the occupants of Byrne's vehicle.
17. The facts in respect of both offenders note that two and a half seconds prior to the airbag in Byrne's vehicle being deployed the vehicle was recorded as travelling at 143 km/h. Half a second prior to deployment of the airbag the vehicle was recorded as travelling at 130 km/h. The exact speed of Cahill's vehicle is not known but it is agreed between the Crown and the offender Cahill that Cahill's "top" speed would not have been less than 100 km/h.
18. Common to the facts in respect of both offenders is the statement that the impact occurred at about 10am on Monday 23 October, 2017 (incorrectly noted as 24 October in the facts in respect of both), a normal school day. The road surface was in good condition, the weather was fine and clear and the road surface was dry. Coleman Street is a road that provides a direct thoroughfare for traffic between Edmondson Street and Bourke Street. The distance from the traffic lights at the intersection of Edmondson and Coleman Streets to the point of impact is 550 metres.

Assessment

1. This matter is manslaughter by gross criminal negligence as it must be noting the decisions of Pullman v R (1991) 25 NSWLR 89 and R v Borkowski. I repeat what I said in the course of my reasons in the matter of R v Tristan Lee [2019] NSWDC 59 at [21]-[26], which the Crown extracted at paragraphs 11 and continuing of his written submissions: "[21] It will be necessary for me to make an assessment of the seriousness of the matter. Gleeson CJ (Grove & Ireland JJ agreeing) said in R v Blacklidge unrep NSWCCA 12 December 1994: 'It has long been recognised that the circumstances which may give rise to a conviction for manslaughter are so various, and the range of degrees of culpability is so wide, that it is not possible to point to any established sentencing tariff which can be applied to such cases. Of all crimes, manslaughter throws up the greatest variety of circumstances affecting culpability.' [22] However, the Chief Justice went on to say: 'At the same time, the courts have repeatedly stressed that what is involved in every case of manslaughter is the felonious taking of a human life. That is the starting point for a consideration of the appropriate penalty, and a key element in the assessment of the gravity of the objective circumstances of the case. (R v Dodd (1991) 57 A Crim R 349; R v Hill (1981) 3 A Crim R 397 at 402.)' [23] In the decision of R v MD, BM, NA & JT (2005) 156 A Crim R 372; [2005] NSWCCA 342 the court (Spigelman CJ, Simpson J (as her Honour then was) and Howie J) said at [61]: 'The felonious taking of human life has always been regarded by the law as a most serious crime. It could never be otherwise for the protection of human life must be a fundamental objective of any criminal law system in a civilised society R v Edwards (1996) 90 A Crim R 510.' [24] Spigelman CJ (Hulme & Adams JJ agreeing) said in R v Hoerler (2004) 147 A Crim R 520; [2004] NSWCCA 184, which like Blacklidge was also a Crown appeal said at [44]: '…When sentencing for the offence of manslaughter, a court must always have regard to the full context in which death was caused. That includes consideration of the extent of violence and the risk of death or serious injury which accompany it. It also includes consideration of any matter impinging on the moral culpability of the offender where there was no intention to inflict such injury, which can vary significantly. Where there was such an intention, but murder was reduced to manslaughter by provocation or mental impairment, the degree of provocation or of impairment, also bearing on moral culpability, can also vary significantly.' [25] In the course of submissions the Crown referred to the decision of R v Loveridge [2014] NSWCCA 120 (co-incidentally another Crown appeal) where the court (Bathurst CJ, Johnson & Hulme JJ) said at [229]: 'When sentencing for manslaughter, a court must always have regard to the full context in which death was caused: R v Hoerler at 531 [44]. The surrounding circumstances may bear upon the objective gravity of the offence and the moral culpability of the offender: R v Hoerler at 531 [44]; R v Wilkinson (No. 5) [2009] NSWSC 432 at [61].' [26] Going to another matter of general principle, Mr King in his very helpful and comprehensive written submissions refers to R v MD, BM, NA & JT. The Court said at [65]: 'In many cases where an offender is convicted of manslaughter there will be exculpatory matters and personal circumstances that can lead the court to significantly ameliorate the sentence which might otherwise be imposed. However, as this Court pointed out in R v Troja (unreported, CCA 16 July 1991) it is important for the court to ensure that the subjective circumstances of an individual offender do not divert the court from imposing a sentence which adequately reflects the part which the law must play in upholding the protection of human life and in punishing those who take it.'"
2. The Crown (paragraph 23 written submissions MFI 1 on sentence) submits that the matter is above the "mid-range of seriousness for matters of this kind". The Crown goes on to note the fact the conduct of the two offenders involved a street race, the speeds at which the vehicles travelled and that the vehicles were travelling over twice the sign posted speed limit. The speed of Byrne's vehicle was at one point 143km/h and therefore slightly more than 90 km/h over the sign posted limit.
3. Further on the aspect of the objective seriousness the Crown in paragraph 29 of MFI 1 details the area or scene where the driving occurred. Those matters include that Coleman Street was commonly used a thoroughfare for local road users preferring to avoid the main highway, the location of schools, the location of two places of worship and the location of one public café where at the relevant time at least five persons were seated at tables on the footpath outside the café on Coleman Street.
4. Most of these were the factors that I would have included in my physical description had there been an agreement between the parties. However a careful perusal of the written and oral submissions by both counsel for the offenders indicates no disagreement or issue with those matters raised by the Crown. Those matters submitted by the Crown are relevant to take into account on the issue of the seriousness of the matter.
5. Ms Mendes for Cahill submits at paragraph 17 of her written submissions (MFI 2 on sentence) a number of factors relevant to an assessment of the objective gravity of the offence. The submissions include that the offence was not planned, the anticipated length of the journey was about 2 kilometres, two vehicles were involved in the race, the race was impromptu, the speed of the vehicles, the location including a built up suburban street, the risk to the persons in the car as well as persons in the vicinity, the race went over a distance of 550 metres, the race would have taken less than 30 seconds, no evidence of ignoring of warnings from the occupants to slow down, and the facts there were "no warnings in the sense of traffic lights, give way or stop signs during which the short burst of offending that could have availed the offenders a moment of composure and reconsideration of their conduct".
6. Ms Mendes goes on to submit that the "offence is a serious instance of offending involving a high order of moral culpability but falls short of the worst category".
7. Further, Ms Mendes submits - as does the Crown - that the moral culpability of Cahill is less than that of Byrne. Mr King on behalf of Byrne submits that the matter is essentially one of a joint criminal enterprise and that there really can be no differentiation between the moral culpability of the two offenders.
8. On this aspect Ms Mendes submits that (paragraph 12 MFI 2 on sentence), "generally the perpetrator responsible for the actual killing will be treated as having demonstrated greater objective criminality than that of an offender who is not physically responsible for the death". The decision cited as authority for that proposition is R v Taufahema [2004] NSWCCA 833. Sully J said at [49] "There is the additional consideration that Penisini was the person who actually fired the fatal shots which brought about Constable McEnallay's death. It must follow, it seems to me as a matter of common sense, that Penisini's objective criminality is significantly greater than the objective criminality of his three co-offenders, including the present prisoner."
9. The factual situation in Taufahema is very much different to the matter presently under consideration. In this matter the two offenders deliberately embarked upon the street race. Ms Mendes put in oral submissions (p 11:21 ff): "…And in my submission there is some appreciable difference between the moral culpability of the two offenders, in respect of what happens a very short period prior to the fatal impact. In my submission the offenders' culpability is equal until Mr Byrne accelerates to a speed that's almost a third in excess of that of Mr Cahill and Mr Cahill was clearly already driving double the speed limit and then conducts a manoeuvre which lands him on the incorrect side of the road, then correcting and the fatal occurs. In relation to Mr King's submission about who started the race and as I understand the submission being advanced on behalf of Mr Byrne there is a submission that your Honour would find as an objective fact when determining the moral culpability of each offender, that it was Mr Cahill that initiated or started the race. The facts, in my submission, establish that both offenders departed from those traffic lights when they turned green in a manner described in the facts as accelerating aggressively, at para 8."
10. In respect of what is extracted above, the facts in respect of Cahill say that the speed of his vehicle "was not less than 100 km/h". Byrne's speed was not necessarily "almost a third in excess of that of Mr Cahill".
11. A little later (p 12:05) Ms Mendes submits that there is no evidence that Mr Cahill initiated the race. The submission continues at pp. 12-13, "…What your Honour knows objectively is that they aggressively sped through the lights, and then at some stage not far down the road they've had an impact, there been this overtaking".
12. Mr King at paragraph 12 of his written submissions (MFI 3 on sentence) submits: "It is apparent that Cahill must have initially driven his car more quickly than the offender, as it was he who took the lead as they proceeded down Coleman Street after the lanes merged. In this sense it may be said that it was Cahill's actions that initiated the race. Both vehicles then drove in a very fast manner down Coleman Street, obviously well in excess of the posted speed limit of 50 km/h".
13. In oral submissions (p 20:19) Mr King submits that the matter is a serious example of vehicular manslaughter. He goes on to submit that every vehicular manslaughter is a serious matter. A little later as part of that same submission (p 20:26) Mr King put, "…and to adopt the Crown's nomenclature, it is not an offence above the mid-range".
14. Ms Mendes submits (paragraph 14 MFI 2 on sentence) that there are a number of factors that warrant a downward adjustment in the assessment of Mr Cahill's culpability vis-à-vis that of Byrne, namely that it was Byrne who conducted the overtaking manoeuvre, Byrne reached a top speed of 143 km/h whereas Cahill's speed is "no less than 100 km/h" and it was Byrne's vehicle that struck the deceased's vehicle.
15. The Crown (p 30:07) put that, "the Crown stands by the submission made that Mr Cahill's moral culpability is lower. On the issue raised at paragraph 12 of Mr King's submissions the following appears attributed to Mr King (p 30:42) but it was put by the Crown: "Yes. So the Crown says at some point Mr Cahill was in front of Mr Byrne's car. When that commenced is simply an unknown, whether he was always in front, or was not, whether they were side by side at some point or not, is simply an unknown. But at some point he was in front."
16. The agreed facts in respect of both offenders have the offender Byrne conducting an overtaking manoeuvre. It follows from that that Cahill must have been in front at least at some stage. The facts and the other material do not enable me to find at what point or for how long Cahill was in front of Byrne. However, likewise I am not able to make a finding that somehow Cahill started the race. The facts indicate - or at least my understanding of the facts is that they indicate - that the decision to participate in the race was one made by both of them. From the facts it is clear that this was very much a "spur of the moment" decision. I note the Crown indicated that it was the Crown case that there was no prior planning (p 28:18).
17. Byrne was travelling at a speed of 143 km/h very shortly before the fatal impact. He conducted an overtaking manoeuvre. The agreed facts are that Cahill's "top" speed during the incident would not have been less than 100 km/h. Given these factors the moral culpability of Byrne is slightly higher than that of Cahill. However there is real substance in Mr King's submission (paragraph 26 MFI 3) that "Their recklessness was the action of engaging in the street race itself, not any individual components of the race".
18. Mr King concedes in his written submissions (paragraph 14, MFI 3 on sentence) "the actions of the offenders were clearly highly dangerous and incredibly irresponsible and their actions led to the death of an innocent road user. It is conceded that this represents a serious example of vehicular manslaughter". Mr King submits (p 23) that the court would find that there is no real difference between the moral culpability of the two offenders. There is another aspect to the issue relating to Byrne's moral culpability, namely the diagnosis of Adult Attention Deficit Hyperactivity Disorder. I will deal with this in detail when dealing with the subjective cases for each of the offenders. The submission continued (p 23:25) that even if I did find that Byrne's moral culpability was greater, the adult ADHD would effectively negate any practical impact on the sentence because of that finding.
19. Ms Mendes submits (paragraph 19 MFI 2 on sentence) that the offence falls below the mid-range for such offending.
20. The Crown submits that the offending is above mid-range (p 31:42), agreeing with a preliminary view I expressed at the sentence hearing that the matter is above mid-range.
21. All counsel made submissions in the context of the Guideline Judgment in R v Whyte (2002) 134 A Crim R 53. As I made clear at the sentence hearing given the conduct of the two offenders I have no difficulty whatsoever in concluding that the both of them abandoned responsibility. They abandoned responsibility when they commenced the race at the traffic lights.
22. Both offenders were young offenders. Cahill is of good character but Byrne has a record involving a number of offences that seem to arise out of the one incident. The record, given his age, can be seen in my opinion as a relatively limited record. I will deal with this issue later. There was death to a single person. The victim was a stranger to both of them. As the Crown submits any person on Coleman Street or in the near vicinity of where the driving was taking place was put at risk. The speed was vastly excessive. As they were racing both offenders were engaging in competitive driving. Each of the offenders had two passengers in their respective vehicles. One of the passengers was trapped for some time in Byrne's vehicle. The length of the journey was several hundred metres. Disaster was all but inevitable. It would be only speculation to determine for how far the driving would have continued but for the impact. There is no issue of sleep deprivation, failing to stop or avoiding a police pursuit.
23. The Crown maintained in both written and oral submissions that the court should take into account ignoring of warnings by both offenders. The submission continued that this is made out because the speed limit of the area where the driving occurred was 50 km/h and given the speed at which they were travelling they ignored the warnings as set out on the signs limiting the speed to 50 km/h. Ignoring of warnings is generally directed towards warnings from other persons in the vehicle. In any event the speeds at which the offenders were travelling and the extent to which those speeds exceeded the sign posted speed limit are some of the more significant factors in determining the objective seriousness. To give further weight to the ignoring of warnings based on what the Crown submits would be to engage in double counting.
24. These two offenders deliberately embarked upon what was serious criminal conduct. That conduct was also particularly and inherently dangerous conduct in deciding to have that impromptu street race on a public street in suburban Wagga Wagga and then continuing that race reaching the speeds that they did. That criminal, deliberate and inherently dangerous conduct had the most tragic of consequences.
25. Taking into account the conduct in general and the speeds in particular, together with the other matters to which I have referred, in particular the area where the driving occurred, I am of the opinion that this matter is above the mid-range of seriousness for matters of this type, meaning matters of manslaughter.

Victim Impact Statements

1. At a short sentence hearing on 7 February 2020 the court received three victim impact statements that were read to the Court. One can only hope that the offenders were listening carefully as those statements were read to the court in order that they might have an understanding as to the devastating effects their conduct had on so many people. From the subjective material it seems as though they were listening.
2. The Victim Impact Statements were from Ms Kailah Fraser, a daughter of the victim (exhibit C on sentence); Ms Jaimee Smith, a daughter of the victim (exhibit D on sentence) and from the wife of the deceased, Ms Tania Smith (exhibit E on sentence). Both Ms Jaimee Smith and Ms Tania Smith came upon the scene of the impact.
3. Those statements speak very powerfully and eloquently in significant detail of the short and longer term effects the death of the late Mr Craig Smith had on his family. Craig Smith was a much loved husband and father and well regarded citizen who was going about his daily affairs when the criminal and highly dangerous conduct of these two offenders cut his life short.
4. The court extends its sincere condolences to the family and friends of the late Mr Craig Smith.

Criminal History

1. The offender Cahill was born on 28 June 1999 and has no matters recorded against him. He is entitled to be dealt with as a person of prior good character.
2. The offender Byrne was convicted on 22 September 2015 (when he was 17) at the Geelong Magistrates Court of a number of driving offences, which I presume from the entry on the record arise out of the one incident. Those offences include Driving in a Manner Dangerous to the Public, Fail to Give Name and Address - Property Damaged, Drive While Suspended and Use Unregistered Motor Vehicle and Fail to Answer Bail. He was convicted and fined an aggregate of $1000 and ordered to pay court costs. He was also disqualified for 12 months. The facts of the matter are provided and it appears that the driving involved a police pursuit, which is a serious matter.
3. I understood from paragraphs 41 and 42 of the Crown's written submissions that that record aggravated the offending. The matters on Byrne's record were when he was 17 years of age. Even if the record was such that it was an aggravating factor pursuant to s 21A(2)(d) of the Crimes (Sentencing Procedure) Act, which it is not, such a record can never aggravate the seriousness of the offending.
4. As Mr King observed in oral submissions (p 21:41) the decision in McNaughton is authority for the proposition that criminal history cannot aggravate the offending, i.e. make the offending more serious. Spigelman CJ (McClellan CJ at CL agreeing with additional comments, Grove J agreeing with additional comments and Barr and Bell JJ (as Bell J then was) also with additional comments said at [30]: "Although I agree with Howie J's identification in Wickham of the relevant sentencing principle, I do not agree with his characterisation of s21A(2)(d). (See Berg supra at [40].) His Honour said that the section appears "on its face" to "indicate that a prior criminal record is a matter of aggravation by making the offence more serious". With respect, I do not agree that the section should be interpreted in that way. There is a distinction at common law between what Callinan J has called "a circumstance of aggravation" and a "matter adverse to an offender". (Weininger supra at [116].) However, Parliament has not used the word "aggravation" in its common law sense."
5. The Crown submitted at the sentence hearing on 29 April 2020 (p 5:26) that Byrne's record disentitled him to any leniency". Given Byrne's age the record has not, in my opinion reached that stage. It also needs to be looked in the context of where he was and his personal situation at the time the convictions arose. I will deal with that issue in slightly greater detail when dealing with the subjective material. However, he is certainly not entitled to the same degree of leniency because of his record that can be extended to the co-offender.

Need for General Deterrence

1. As the Crown submits (paragraph 49 MFI 1 on sentence) the appellate courts have said that youth is of limited assistance as a mitigating factor in serious driving offences. The policy behind this is, as was clearly stated in the decision of TG v R [2010] NSWCCA 28, that if young men are old enough to hold a driver's licence they are expected to have the maturity to comply with the relevant rules. In TG v R Howie J (McClellan CJ at CL, Harrison J agreeing) said at [33]: "Thirdly, evidence from a psychiatrist as to the immaturity of young males of the age of the applicant was irrelevant. If a young male is old enough to be licensed to drive a motor vehicle, he is to be assumed to be mature enough to comply with its conditions and the traffic rules. In SBF v R [2009] NSWCCA 231; 53 MVR 438 at 151 Johnson J stated: 'Ms Francis referred in submissions to the Applicant "having little appreciation of his own mortality" (T5.35, 22 June 2009). The Applicant's counsel in the District Court had submitted that "it is also a fact of life that people at this tender age tend to - their brains tend to not allow them to deal with the responsibility that they sometimes demand so vocally" (T6.10, 5 August 2008). In a similar vein, the sentencing Judge in the Victorian County Court in Neethling at [51] had observed that the offender "like many young men ... saw [himself] as 'bullet proof'." The fact that young men (in particular) may have such perceptions is a significant reason for general deterrence to be a prominent factor in cases such as these. Inexperience and immaturity, in persons aged 17 years and over, cannot operate as mitigating factors where the offender commits grave driving offences, with fatal consequences, as exemplified by Neethling and this case.' The reference to "Neethling" was a reference DPP v Neethling [2009] VSCA 116; (2009) 52 MVR 422".
2. On the issue of general deterrence the Crown also appropriately refers to the decision of the Court of Criminal Appeal in WW v R [2012] NSWCCA 165. Hoeben CJ at CL (Johnson & Button JJ agreeing) said at [65]: "The applicant accepted that when sentencing for driving offences, because of the tendency of young drivers to drive dangerously and thus the greater prevalence of driving offences committed by young persons, general deterrence might be regarded as a "prominent factor". He submitted, however, that his Honour erred in this case when he said that he regarded general deterrence as "a dominant factor". The applicant submitted that "prominent" was not the same as "dominant" and that his Honour erred in substantially subordinating considerations relating to his youth to the concept of general deterrence. The applicant submitted that his youth and the need to foster rehabilitation had to be given appropriate weight. In this case his Honour's finding was that the applicant had 'good prospects of rehabilitation'."
3. His Honour went on to say at [69]-[70]: "The distinction sought to be made by the applicant between the words 'dominant' and 'prominent' is a matter of semantics, rather than principle. Whichever word is used, the effect of what his Honour did is clear, i.e. that in relation to this offence because of the prevalence of young offenders, general deterrence is to be regarded as more important than the need for rehabilitation. In R v Scott [1999] NSWCCA 233 Levine J (with whom Smart AJ agreed) referred to the importance of general deterrence in the following terms: '17 His Honour paid particular regard to the consideration which is of paramount importance in a case in respect of this offence, namely general deterrence. Offences under section 52A are public offences. Everyone has some idea of what they are about. Everyone is involved as a driver, passenger or pedestrian with what goes on on the highways and streets of this State. It is a very public crime. The public are entitled to have sentences imposed that make it perfectly clear that conduct of this kind in an environment in which so many of the public are involved in their daily affairs, will be appropriately punished.' [70] Although this was a decision of the Court with a bench of two judges, there is nothing contrary to principle in that statement, which was applied and adopted by a three judge Court in R v AB [2011] NSWCCA 229 at [101]."
4. Johnson J in R v AB said also referring to the decision in at [101]-[102], also referring to the decision in R v Scott: 'In R v Scott [1999] NSWCCA 233, Levine J (Carruthers AJ agreeing) said at [17]: 'Offences under s52A are public offences. Everyone has some idea of what they are about. Everyone is involved as a driver, passenger or pedestrian with what goes on on the highways and streets of this State. It is a very public crime. The public are entitled to have sentences imposed that make it perfectly clear that conduct of this kind in an environment in which so many of the public are involved in their daily affairs, will be appropriately punished.' [102] It is the unfortunate fact that offences under s.52A Crimes Act 1900 can cause death or serious injury to persons in the driver's vehicle, in other vehicles which happen to be in or near the street at the time, or to pedestrians unlucky enough to be in the area when the offence is committed. The lethal or potentially lethal consequences of s.52A offences mean that relatives or friends of an offender, or complete strangers, may be killed or injured through the course of driving which constitutes the offence."
5. Although the Court in Scott and in R v AB was dealing with offending contrary to s 52A of the Crimes Act the statements made are equally applicable in the matter presently under consideration. Subject to an issue in relation to the offender Byrne (i.e. adult ADHD), with which I will deal in detail when reviewing the subjective material, the sentence in this matter must contain a substantial element of general deterrence. Drivers in general and young drivers in particular must understand that conduct such as that engaged in by these two offenders will be met with condign punishment.

Subjective Case - Cahill

1. No oral evidence was called from or on behalf of the offender Cahill. However a volume of written material, exhibit 1 on sentence, including a report from Dr Olav Neilssen was tendered. I will go first to Dr Neilssen's report.
2. The offender gave Dr Neilssen an account of driving a 1998 model VT SS Commodore that was fitted with a five litre V8 motor. I observe that this is a high performance vehicle. The offender, who lived at Batlow, would drive to Wagga Wagga weekly to attend TAFE as part of his training as a mechanic. He knew the co-offender Byrne as another student. The offender told Dr Neilssen that there had been no planning of the race. That is accepted.
3. At p 3 of the report Dr Neilssen recounts that a year after the incident the offender's general practitioner referred him to Dr Roger Blake, psychologist, for anxiety and depression. There is a separate report from Dr Blake. Given the offender's predicament it is not surprising that he has anxiety. Dr Neilssen records at p 4 that when asked about the symptoms of psychosis the offender denied having typical hallucinations of voices or holding beliefs he recognised to be false. There was no history of episodes that were suggestive of bi-polar disorder. The offender is a social drinker and has never used illicit substances.
4. The offender is the youngest of three siblings. His siblings work, as do his parents. He attended primary and secondary school in Batlow. According to Dr Neilssen's report the offender gave a history of his employer approaching him and offering him an apprenticeship. This is confirmed in a letter from Michael Daley of Batlow Mechanical Repair Service, which is part of Exhibit 1 on sentence. The offender elected to continue and complete Year 10 before commencing the apprenticeship. He completed some of the components of the technical training stream while still at school. He plans, or at least hopes to return to employment with Mr Daley upon his eventual release. He and his fiancé - from whom there is also an affidavit contained within exhibit 1 - had commenced work on renovating a house near the offender's father's property prior to him going into custody.
5. Dr Neilssen (p 6 report) diagnosed a depressive illness (adjustment disorder with depressed mood). Immediately, Dr Neilssen goes on to say, "The diagnosis of a depressive illness, described as an adjustment disorder, or a clinically significant response to an adverse life events, was made on the basis of the symptoms described by Mr Cahill, the observations made by his mother and aspects of his presentation during the recent interview". The doctor goes on to say that the main cause of his depressive illness would appear to be the effect of his role in the accident and its aftermath.
6. A little later in the report Dr Neilssen says, "However, normal eighteen year old males are in the process of development that the executive controls requires to contain their impulses, especially in the presence of a group of peers". This is no doubt the case. However, I have set out above under the heading 'General Deterrence" some of the pronouncements of the superior courts on the issue of the immaturity of young men and driving offences.
7. Dr Neilssen opines (p 7) that the offender Cahill has a favourable prognosis and a low probability of further offences. The offender Cahill has no prior criminal history. He was employed and undertaking an apprenticeship. There is further subjective material to be considered but I accept the opinions expressed. That opinion is one matter that leads me to the conclusion that the offender Cahill is unlikely to re-offend.
8. As indicated above, Dr Blake has also provided a report. The family background is repeated in that report. Dr Blake sets out at pp 2-3 that adolescence and young adulthood is a period where individuals can be ruled by impulse and emotion over common sense. He sets out a number of matters, mostly risk-taking behaviour, that young people are more likely to do. The issue of immaturity and youth is of little assistance in this matter noting what I have already said about the authorities on that issue.
9. Significantly however Dr Blake notes (p 3) that it is obvious that the offender Cahill has had time to take responsibility for his actions. Further that the offender Cahill has avoided blaming others for his own reckless behaviour and been able to accept his part in this tragic event. The report concludes with Dr Blake making the observation that the offender Cahill does seem to display genuine remorse.
10. It is also clear from other written material (which I will deal with shortly) that the offender Cahill has expressed remorse to a number of people. One factor that I see as very significant on this issue is that he surrendered his bail at the time of committal for sentence.
11. In his written submissions (MFI 1 on sentence) at paragraph 31(f) the Crown Prosecutor submits that the Court would be guarded about accepting genuine remorse from either offender. The Crown also observes that regret does not amount to remorse. At p 32:32-42 of the sentence hearing the Crown acknowledged in oral submissions that it appears that Mr Cahill has accepted his role and that was something I could take into account in making a determination on balance whether the offender Cahill was remorseful.
12. Part of the subjective material for Cahill is an affidavit by his partner and fiancée Ms Debbie Hawthorne. She is 22 and an early childhood educator and has known the offender Cahill for four years. She spoke to him on the day of the incident and he said to her, "I feel sick, I can't do anything for that poor family".
13. In 2016 Ms Hawthorne's parents bought a 10 acre block with an un-renovated house out of Gundagai with the aim of the offender and Ms Hawthorne paying off the mortgage and renovating the house. Renovations commenced about six months after the incident. Details are given as to how the offender Cahill complied with the curfew that was a condition of his bail. Ms Hawthorne made a decision to continue the relationship and support Cahill through the matter.
14. Ms Hawthorne fell pregnant but suffered a miscarriage. The two of them became engaged on 18 July 2019. Ms Hawthorne maintains (paragraph 11 of the affidavit) that, "we are firmly committed to working through Matt's time in custody and I am prepared to await his release however long it takes so that we can resume our relationship".
15. The affidavit of Ms Hawthorne then goes on to describe that Cahill had difficulty sleeping on occasions and details that he was subject to bail checks by the police after which he had difficulty getting back to sleep. She then goes on to describe (paragraph 15 etc.) the impact of what are said to be onerous bail conditions. According to Ms Hawthorn and there is no reason to presume otherwise the offender Cahill has strictly complied with his bail conditions which included a curfew, abstinence from alcohol and reporting to police three times per week. Cahill missed a number of social events including relatives' 18th and 21st birthday parties because of those restrictions.
16. According to Ms Hawthorne (paragraph 19) the offender Cahill in early 2019 started to talk seriously about going to prison. He made the decision to surrender his bail. Ms Hawthorne says, "He knew what he had done, how serious it was and he could begin to take full responsibility". She has regularly visited her fiancée in gaol. It has become more difficult for her to visit him since he has been moved initially to Bathurst and then Wellington Correctional Centre. The offender Cahill works in metal fabrication at the Wellington Correctional Centre. It is also costly to travel to visit at those centres.
17. The offender Cahill put on a considerable amount of weight after being charged with this matter. According to Ms Hawthorne he seemed to cope by cooking and over eating. He weighed 130 kg at the time he was taken into custody but has lost 20 kgs since being in custody.
18. At paragraph 26 of the affidavit Ms Hawthorne confirms her commitment to continuing the relationship with the offender. She also says that he has "talked a lot to her about wanting to educate boys and young men about the dangers of being behind the wheel of a car and making a sudden decision to speed and break the law, about how what you think is a small decision can end so horrifically so quickly".
19. Part of the subjective material within exhibit 1 on sentence is a lengthy letter from Cahill's employer. The offender Cahill was offered the apprenticeship after working casually for Mr Daley. The offender was arrested at the work place. On page 2 of the letter the following appears: "…he told me that he feels very sorry for Mr Smith's family who have been devastated by the events. He has told me that he feels helpless and hopeless because he can't change anything and make it better. He has told me that he feels terrible and that it all happened so quickly... honestly, I think he couldn't be more sorry than he is now".
20. Mr Daley has also visited Cahill while he was at Junee Correctional Centre. He indicates that the offender can have his job back upon his release from custody.
21. There are a further eight character references put forward in respect of Cahill. Those are from the parents of the offender's fiancée; Ms Sharon Wyse a former school teacher of the offender; Ms Deborah Burgess, an aunt; Mr Darryl Watkins, the manager of an orchard; Mr Trevor Mills, who is the offender's trade teacher; and Mr McAlister, the Mayor of the Cootamundra-Gundagai Regional Council. In addition to those character references are two letters from the offender's mother. I will go initially to the letters from the offender's mother.
22. Not surprisingly his mother speaks well of him. She describes a well-mannered, well-behaved, well-liked and likeable young man. He enjoys good peer support. She is understandably proud of his achievements including being offered the apprenticeship rather than asking. The conduct that brings him before the court is out of character. He has strictly complied with his bail conditions. He enjoys good family support. She has regularly visited her son in gaol. He has told her he has flashbacks to the incident. He will continue to have family support upon his release from custody.
23. The second letter details the difficulty Ms Hawthorne and the family are having visiting the offender Cahill during the "lockdown" in respect of COVID-19 pandemic. I accept that the lockdown has meant that essentially all visits to all correctional centres have ceased. I also accept that this is difficult for the inmates and it makes the custody more onerous. I also accept that not being able to visit is also a hardship for the family. The offender is obviously anxious about what will happen to him.
24. Mr McAlister, the mayor of the Council, says that the offender comes from a well-known and respectable family in the area. It is a sad reality that it is often driving offences that bring otherwise respectable people into conflict with the law. He too says that the offender's actions on 23 October 2017 were out of character.
25. Mr and Mrs Hawthorne (fiancé's parents) also speak in some detail of the remorse that the offender feels over his conduct on 23 October 2017. They have seen the impact of the events on the offender. They speak well of the offender and his work ethic.
26. Ms Wyse also speaks well of the offender and his family. She has kept "an eye" on the offender's progress and always admired and respected the offender. She "struggles to understand Matthew's serious lapse of judgment". He has expressed his deep remorse for his actions.
27. The offender's aunt, Ms Burgess, also says that the actions of the offender on 23 October 2017 were out of character. She also says that the offender is remorseful. She too has visited the offender a number of times. She speaks well of the relationship between the offender and his fiancé.
28. Mr Watkins is a family friend and he too says that the offender is remorseful.
29. That leaves the reference from Mr Trevor Mills, the offender's trade teacher. He also comments that the events of 23 October 2017 were out of character for the offender. He has spoken to the offender a number of times since the incident and the offender has expressed remorse to him.
30. Ordinarily I am not much impressed with hearsay and untested accounts of remorse in references and letters, particularly where those letters come from family members - see for e.g. Imbornone v R [2017] NSWCCA 144 in particular at [57]. However, this is not one of those usual matters. Significantly, the offender surrendered himself and invited the court to revoke bail at the committal. That in my view was a very tangible indication that the offender Cahill has accepted responsibility for his actions. The expressions of remorse as recounted in the letters are detailed and go beyond what is usually contained in such letters. In this matter I am more than satisfied on balance that the offender Cahill is remorseful.
31. He has no prior record. He on all accounts was generally a responsible and hard-working young man with a good future ahead of him. He had a good and supportive family, a fiancé who he loved and who loved him, he had an apprenticeship and on all accounts a good future in his trade. He has an offer of employment upon release. He has and will continue to have excellent family support. He is working while in custody. He has done and continues to do courses while in custody.
32. For these reasons I am satisfied on balance that Cahill is unlikely to re-offend and that he has good prospects of rehabilitation. Indeed, I would go further and find that he has excellent prospects of rehabilitation.
33. It is submitted on behalf of both offenders that what are submitted to be onerous bail conditions should lead to some backdating of the sentence. As that is an issue common to both I will deal with that after I have dealt with the subjective case for the offender Byrne.

Subjective case - Byrne

1. No oral evidence was called from or on behalf of the offender Byrne. However, a volume of written material was tendered that became exhibit 2 on sentence. Included in exhibit 2 is a report from Dr Sathish Dayalan, Forensic Psychiatrist.
2. Dr Dayalan sets out (p 2) that the offender described a long history of poor impulse control. There was no history of psychotic symptoms, manic episodes or suicidal behaviour.
3. The offender Byrne recounted to Dr Dayalan (p 3) that he had been waiting at the traffic lights and then it just happened. He denied having contemplated on speeding in his car prior to reaching the traffic lights. He denied being encouraged by his friends in the car. He told the doctor, "I just went for it. It does not make sense to me as to why it happened that way". He went on to tell the doctor that he feels sad and remorseful and he thinks about it every day.
4. Byrne gave an account to Dr Dayalan to binge drinking alcohol and that he started to use crystal methamphetamine (ice) at the age of 16 and he continued with daily use of that drug until he was 17. He told the doctor that he had not used that drug from the age of 18 years. He used MDMA socially on weekends between 16 and 18 years.
5. In respect of the offender Byrne there was no history of exposure to abuse or traumatic experiences in childhood. He left school in Year 10 and then worked on a farm before commencing the mechanics apprenticeship. He has not been able to continue with the apprenticeship after his arrest so he found work as a tyre fitter.
6. Dr Dayalan opines (p 5) that there was no evidence of disorder in thought form. There was no evidence of any delusions or auditory hallucinations. The offender accepted that he suffered from attention deficits and poor impulse and he was willing to engage in treatment.
7. The doctor went on to note that a report by Dr Shah (which is also part of the material in exhibit 2) noted that the offender presented with a two year history of depressive and anxiety symptoms that had progressively worsened over time.
8. Under the heading, "Psychiatric Opinion" Dr Dayalan (p 6) opines that, "The history gathered and his presentation during the interview would be consistent with diagnosis of adult attention deficit hyperactivity disorder - combined type (ADHD)..." He goes on to explain that adult ADHD manifests as mood instability, anxiety symptoms, temper outbursts, inattention, disorganisation, impaired short term memory and poor impulse control. The doctor noted that the offender presented with those features.
9. Further, Dr Dayalan goes on to say at p 7: "Poor impulse control is one of the three cardinal features of ADHD and it is highly likely that his untreated ADHD had contributed to the offending behaviour by impairing his ability to carefully consider consequences of his behaviour and control his impulse. His anxiety symptoms had probably impacted further on his judgment."
10. Dr Dayalan suggests that the offender would benefit from treatment for the ADHD and regular consultations with a psychiatrist to monitor his response to treatment. He also recommends that the offender would benefit from consultations with a psychologist to address his poor impulse control and risk of relapse into substances in the future.
11. Mr King on behalf of the offender Byrne at paragraphs 27 - 31 (MFI 3 on sentence) puts that on the report from Dr Dayalan there is a causal connection between the offending and the mental condition of the offender. It is further submitted that the offender's ADHD reduces his moral culpability. I agree with that submission. The plurality in Muldrock v The Queen [2011] HCA 39 the court said at [54]: "The principle is well recognised. It applies in sentencing offenders suffering from mental illness, and those with an intellectual handicap. A question will often arise as to the causal relation, if any, between an offender's mental illness and the commission of the offence. Such a question is less likely to arise in sentencing a mentally retarded offender because the lack of capacity to reason, as an ordinary person might, as to the wrongfulness of the conduct will, in most cases, substantially lessen the offender's moral culpability for the offence. The retributive effect and denunciatory aspect of a sentence that is appropriate to a person of ordinary capacity will often be inappropriate to the situation of a mentally retarded offender and to the needs of the community."
12. I have carefully considered the judgment of Simpson J (as her Honour then was) (Adams & McCallum JJ agreeing) in Aslan v R [2014] NSWCCA 114 at [33]-[36] and the decision of Ngati v R [2014] NSWCCA 125 per Beech‑Jones J at [45]-[46]. Without reciting the extract of the decision I also note what was said by McClellan CJ at CL in DPP (Cth) v De La Rosa (2010) 79 NSWLR 1 at [177]-[178] on the impact of a mental condition in the sentencing process. The mental condition may reduce the moral culpability, it may mean that the custodial sentence will be more onerous, and it may reduce or eliminate the need for general or specific deterrence.
13. I spent some considerable time dealing with specific deterrence. When preparing that part of these reasons I was very much aware of the issue of the adult ADHD with the offender Byrne. In the circumstances noting the type of offending I am of the opinion that the mental condition reduces the impact of general deterrence so far as Byrne is concerned but it does not eliminate it altogether.
14. At the sentence hearing (p 23:27) Mr King submitted in effect that even if I did come to the conclusion that his client had a "higher" moral culpability the issue of the ADHD with the offender Byrne "levels it out" and that I would "treat them the same". I find considerable attraction to that submission.
15. Dr Shah conducted a tele-psychiatry assessment for Byrne, which the Crown maintains in written submissions (paragraph 78 MFI 1 on sentence) "on its face objectionable opinion evidence". However, there was no objection to it being received. He gives a brief history which I will not repeat. Understandably the offender is worried about the outcome of the sentence hearing and whether he will have a family when he is released. Dr Shah's assessment includes major depression, generalised anxiety disorder with panic attacks and possible low grade PTSD. A management plan including medication and counselling is set out.
16. One of the matters I will need to determine is the admissibility of MFI 4. That is an extract of paragraph 58 of a psychological report prepared for the offender Byrne that was served on the Crown but ultimately not relied upon by the offender at the sentence hearing. In particular the Crown relies upon the last sentence of that paragraph, "Mr Byrne has indicated that he was not intentionally engaging in a drag race with the other student driving to the pie shop".
17. As I indicated at the sentence hearing one of the issues is that this is the summary of the author of the report as to what the offender Byrne said to her. It does not purport to be a verbatim quote of what he said. The other issue as Mr King submitted (p 4:05) is that it is not necessary inconsistent with what Mr Byrne said. The matter has proceeded before me on the basis that there was no planning of the race and the race was very much impromptu. The last sentence of paragraph 58 of the report is not necessarily inconsistent with that. There is also the difficulty of knowing the context with all but paragraph 58 being redacted. I decline to admit MFI 4 into evidence. Further, if it was in evidence I would give it no weight.
18. Included in exhibit 2 on sentence is an affidavit from the offender's wife, Tiffany Byrne, that Mr King read. Before the incident the offender was outgoing. Since the incident he has suffered nightmares. He is finding it difficult to cope. He has expressed many times that "he is so sorry for all the pain he has caused everyone affected by his driving and he would do anything to change that day". The offender told his wife that he was devastated when he heard the victim impact statements read. I observe that it would take a particularly hardened human being not to be moved by those statements.
19. A Facebook post is annexed to Tiffany Byrne's affidavit. That post is from Tania Smith and reads in part: "Nothing can bring Craig back and there can be no justification for the senseless act that took him from us. My only hope is that the men responsible can step up and dedicate their time to educating other young men of the ramifications of such senseless behaviour. If just one family can be saved from the heartache we have endured then that has to stand for something".
20. The author of that post is to be congratulated on the measured approach and tone.
21. Tiffany Byrne goes on to say (paragraph 24 affidavit) that the offender and her have decided that when the offender is eventually released they will make it a family goal to respond to that Facebook post for the family. He also has a goal to educate other young drivers about what he did. Tiffany Byrne also says that the offender is "an amazing father and husband" and has taken responsibility for his actions and feels so terrible for the pain he has caused. The offender is the father of a young child. A report from the Riverina Medical and Dental Aboriginal Corporation within exhibit 2 sets out that Tiffany Byrne is pregnant with their second child and the estimated date of delivery is 19 June 2020.
22. At the sentence hearing on 29 April 2020 a letter from Tiffany Byrne dated 28 April 2020 was added to exhibit 2. That speaks of the impact of the COVID-19 pandemic on visits by family members to correctional centres and the concerns over risk of infection.
23. The subjective material also includes an affidavit from the offender's mother, Karley Crain. The offender did not have much of a relationship with his biological father as they lived in different states. She re-partnered and they became a tight family unit. The offender began having trouble at about the time he commenced high school and went to live with the biological father in Victoria. According to Ms Crain at about the age of 14 the offender was introduced by his biological father to alcohol, drugs and a criminal lifestyle.
24. On that last issue I note the submission made by Mr King (p 22:17; 23:36) that the convictions recorded against the offender arose when he was living with his father in Melbourne; that his father was a bad influence and it was not surprising that he ended up in trouble with the police. I agree that the record of the offender Byrne needs to be looked at in this context. This is one of the reasons I disagree with the Crown that Byrne's record is one that "disentitles him to any leniency".
25. Returning to Ms Crain's affidavit, upon the offender returning to Wagga Wagga he obtained employment, met his wife, became a father and worked hard to provide for his family. She goes on to say that the offender has "been struggling ever since that day (i.e. 23 October 2017) knowing that he killed someone and he will have to live with that for the rest of his life". Further the events of 23 October 2017 have changed him as a person.
26. There are three testimonial references contained in exhibit 2: one from Brett Crain, the offender's step-father, one from Cathy LeCerf from ATEL and the other from Adrian Beckton, the Managing Director of ABC Tyres Pty Ltd who was the offender's employer.
27. Mr Crain sets out that the offender has also been employed within the family business and speaks well of the offender's work ethic. He speaks well of the offender as a father and husband. He says that he is in no doubt that the offender is regretful for his actions. Ms LeCerf says that she got to know the offender during his employment with ATEL Employment Services between October 2015 and 23 October 2017. He fulfilled all of his obligations and was committed to his employment. Mr Beckton also speaks highly of the offender's work ethic. He also says the offender is very remorseful about the whole incident.
28. Mr King submits that I would find on balance that the offender Byrne is remorseful. At the sentence hearing (p 37:27) the Crown Prosecutor opposed any finding in favour of Byrne of remorse but indicated a secondary position if I did find remorse I would give it little weight.
29. I have already indicated when dealing with Cahill that generally I am not much impressed with untested hearsay accounts of remorse. Byrne invited the court to revoke his bail at the sentence hearing on 7 February 2020, much later than did Cahill. Given the accounts given by family and others including his employers this is again one of those rare matters where I am able to find on balance that the offender is remorseful without evidence from the offender. However I am not prepared to give the remorse the same weight as is the situation with the co-offender Cahill.
30. As I have already said, the criminal history of the offender Byrne needs to be looked at in the context of what was happening in his life at the time. He is now married with one child and is expecting another. He was undergoing an apprenticeship and when because of the incident on 23 October 2017 could not continue, found alternative employment. A number of the referees speak well of the offender's work ethic. I am prepared to find on balance that the offender Byrne has good prospects of rehabilitation. Further, with some minor hesitation centred on him undergoing appropriate treatment for his adult ADHD I am prepared to find on balance that he is unlikely to re-offend.
31. I have no doubt that the events of 23 October 2017 have left an indelible impression on both offenders.

COVID-19 Pandemic

1. The most recent material from the partners of the two offenders both refer to them not being able to visit the offenders in custody during the present "lockdown" conditions that result of the COVID-19 pandemic. I accept that because of that situation that visits have essentially ceased. I also accept as a result of that the custody of the two offenders will be more onerous. The unknown is of course is for how long these present conditions will remain in force.
2. Annexed to MFI 2 on sentence - i.e. Ms Mendes' written submissions is a report from Dr Andrew Ellis, Forensic Psychiatrist. Not surprisingly, he opines that the pandemic will have an adverse effect on the mental health of inmates. He opines (p 3) that it would reasonable to presume an increase in the development of post- traumatic stress disorder and depression and subclinical symptoms of these conditions in those who are infected and recover physically. Dr Ellis goes on to say that the second likely effect on mental health is through the measures employed in institutions to combat the viral spread. He discusses diversionary measures for people with mental conditions, which have no application in this matter.
3. Further, Dr Ellis discusses the possible effects of the pandemic and measures taken to prevent further spread on vulnerable persons such as persons with a major mental illness, which he observes are over-represented within the prison population. He said that persons with comorbid conditions such as substance use alongside mental illness and cognitive impairment have compounded issues are more resistant to brief treatment.
4. At p 6 of his report Dr Ellis says in discussing isolation, noting that the present isolation period for COVID-19 is 14 days, that "in summary there are always negative effects for mental and physical health found when the practice is studied". He comments on the likely effect and conditions in which inmates are held. Clearly, the custodial environment is far more limited. I take no persuading that because of the measures taken because of the pandemic make custody more onerous.
5. In addition to the material from the partners of the two offenders exhibits 3 and 4 are also before the court. Exhibit 3 is a printout of the New South Wales Department of Corrective Services response to the pandemic. All social visits are suspended from 16 March 2020. Video visits are being piloted over New South Wales. New inmates are isolated for a period of 14 days. Planning has been developed to deal with any cases within the prison system.
6. Exhibit 4 is an extract from The Guardian entitled, "Coronavirus is a ticking time bomb for the Australian prison system". It deals with potential issues and notes that a decision has been taken for the early release of some prisoners.
7. I note what was said by Haesler SC DCJ in his remarks on sentence in R v Despotovski [2020] NSWDC 110 at [35]-[39]: "The present crisis has increased apprehension by prisoners about infections in gaols, as it does in the community in general. As a community we are being asked, urged and compelled to self-isolate. This cannot happen in a gaol. Prisoners cannot practice physical distancing, particularly sweepers whose job it is to clean within the gaols. Prisoners are personally unable to implement social distancing. They are completely reliant on the authorities; who have complete control over their lives. [36] Social visits have been suspended for an indefinite period, although access to telephone calls has increased: CSNSW memo response to COVID-19, 25 March 2020. Absence of visits from family and friends is an additional hardship. [37] These concerns and considerations apply to every prisoner sentenced and for sentence. I am however sentencing this offender today based on current knowledge of COVID-19and the response to the crisis as advised by Corrective Services NSW [38] If and in reality, it is when COVID-19 enters gaols early parole may be given some prisoners: s276 Crimes (Administration of Sentences) Act 1999. The offender falls into a category that might be considered for early parole. [39] I cannot predict what will happen to this offender but the lack of visits reducing any capacity to remain in contact with pro-social friends and family, and that heightened anxiety and concerns, are relevant factors that must be synthesised along with all other matters. The extent, to which those may be taken into account is a matter to be resolved on the particular facts of this individual case: Brown v R [2020] VSC 60 at [48]. Here his depression and anxiety will be exacerbated. Although I note his health concerns (they are not supported by other evidence) nothing in particular puts Despotovski at greater risk than every other prisoner."
8. With unfeigned respect to my colleague I agree with his remarks at [39] and will take those matters into account in the same manner as Haesler SC DCJ. However, neither of these two offenders would be eligible for consideration of early parole.

Bail conditions

1. It is submitted on behalf of both offenders that they were subject to onerous bail conditions and that as such they are entitled to some consideration by the back-dating of the sentence to be imposed. The Crown opposes any such back-dating.
2. In respect of the offender Cahill, exhibit 1 contains a copy of the bail acknowledgement that sets out the bail conditions to which he was subject were:

• Reporting to Tumut Police Station each Monday, Wednesday and Friday;
• To live at [an address in] Batlow, 2730,
• A curfew, i.e. not to be absent from those premises between 7pm and 6am with an enforcement condition of no more than two times per night and three times per week;
• Not to be with or contact Joshua Byrne, Nathan French, Matthew Frost, Bradley Heinke or Connor Henderson;
• Not to go near or contact any prosecution witnesses;
• Not to drink alcohol or take drugs unless prescribed by a doctor;
• Not to occupy the driver's seat of a motor vehicle; and
• Surety self in $2000 with an acceptable person to lodge $5,000 to be forfeited in the event of non-compliance.

1. In respect of the offender Byrne a Notice of Listing setting out the bail conditions is included in exhibit 3 on sentence. The bail conditions to which Byrne was subject were:

• To be of good behaviour;
• Report daily to the Wagga Wagga Police Station, suspended from 19-21 November 2019;
• To live at [an address in] Gellibrand, Victoria, 3239 from 6/9/19 to 7/9/19; [an address in] Ashmont (suburb of Wagga Wagga) and to reside with Tiffany Williams, also suspended 19-21 November 2019;
• Curfew not to be absent from the place of residence between 9pm and 6 am with a further condition he may only leave the premises at other times if he is in the direct company of his father Brett Crain or mother Karley Crain or partner Tiffany Williams;
• A requirement to appear;
• Not to use any illegal or prescribed drug unless prescribed by a doctor;
• Not to drink alcohol;
• Not to enter licenced (i.e. licenced to sell alcohol) premises;
• Not to drive a motor vehicle or sit in the driver's seat of a motor vehicle; and
• A surety, himself in $2000 with an acceptable person to enter into an agreement to forfeit $2000 in the event of non-compliance.

1. It appears (see p 24:10) that the bail imposed in respect of Byrne was imposed by Button J of the Supreme Court. Byrne had spent six weeks days in custody prior to bail being granted. I note also that Byrne continued to work until he surrendered himself on 7 February 2020 as there is a reference from his employer Mr Adrian Beckton from ABC Tyres Pty Ltd. Clearly there was some variation of the bail conditions to allow him to work.
2. The subjective material, particularly the affidavits and letters from the respective partners of the two offenders, sets out the difficulties and hardship created by what are said to be onerous bail conditions. I took the initial view as was expressed (see for e.g. p 33:06) that both offenders were "lucky to have bail". The Crown Prosecutor agreed and went on to submit (p 33:19): "…but bail is a compromise. A compromise that you can have your liberty. You either have your bail revoked and you don't have your liberty, or you have your liberty subject to conditions that you accept".
3. Ms Mendes in submissions in reply submitted: (p. 38:21), "…With respect to the issue of bail, whilst I understand that everyone in this room may well be thinking…that they were lucky to have bail at all, applying to both Mr Byrne and to Mr Cahill, with respect that doesn't answer the question here, and that is the degree of liberty that was compromised as a result of them being subject to conditional bail…(p. 38:30)…It is a matter that is clearly within the exercise of this Court's principal(led) and considered discretion to consider applying…some kind of recognition in terms of the commencement date of each of these offender's sentence having regard to the incursions upon their liberty…"
4. Mr King supported Ms Mendes' submission (pp. 41-2) and submitted: "Yes it is true that both of these men were fortunate to appear on bail, but that does not derogate in any way from the fact that for the time they were in the community that their conditions of being in the community were very limited".
5. Both Ms Mendes for Cahill and Mr King for Byrne rely on the decisions of R v Anderson [2012] NSWCCA 175 and Hoskins v R [2016] NSWCCA 157. Extracts from both decisions are included in Ms Mendes' written submissions. In R v Anderson Davies J (Allsop P as his Honour then was agreeing with additional comments, Campbell J agreeing and with the additional comments of Allsop P) said at [41]-[45]: "The Crown accepted that in appropriate circumstances an allowance can be made for periods on bail. Most of the cases which have dealt with this have involved rehabilitation "custody" by virtue of the offender being within a residential rehabilitation program: R v McHugh (1985) 1 NSWLR 588; R v Douglas (unreported, NSWCCA, 4 March 1997); R v Eastaway (unreported, NSWCCA, 19 May 1992); Hughes v R [2008] NSWCCA 48; (2008) 185 A Crim R 155; BJT v R [2011] NSWCCA 12; R v Delaney [2003] NSWCCA 342, (2003) 59 NSWLR 1. [42] In Hughes Grove J (with whom McClellan CJ at CL and Simpson J agreed) said: '[38] It is appropriate for an offender to receive recognition and credit for time spent in rehabilitation which has been productive: R v Eastaway (unreported, NSWCCA 19 May 1992). An allowance of approximately 50% of the credit that would be given in respect of pre-sentence custody has been endorsed: R v Douglas (unreported, NSWCCA 4 March 1997). Pre-sentence custody and the similar concept of rehabilitation "custody" is preferably catered for by backdating of the commencement date of sentence: R v McHugh (1985) 1 NSWLR 588.' [43] Once it is accepted that it may be appropriate in some circumstances to give a discount of 50% in respect of bail conditions the determination of what an appropriate discount might be in a given case is a discretionary judgment for the Sentencing judge. Accordingly, an error of the type referred to in House v The King (1936) 55 CLR 499 must be shown. [44] Although the Respondent was not in what has been called rehabilitation custody the practical effects of her bail conditions were onerous. She was required to reside in a small town, was unable to leave it (except to attend court or legal conferences) and was subject to a curfew. Those conditions meant that she was unable to find employment (because of the limited job opportunities in such a small town) and was unable to further her rehabilitation because no facilities were available. [45] Her Honour's approach to the Respondent's bail conditions was a lenient one. She did not, however, make any error of fact or law, she did not take account of irrelevant matters and she considered relevant matters. The result, whilst generous, was not plainly unjust nor unreasonable in the sense that it reduced the sentence to a level insufficient to reflect the objective seriousness of the offending: Delaney at [35]; Truss v R [2008] NSWCCA 325 at [21]."

Other cases

1. Mr King, with his usual thoroughness, has made available the Public Defender's Table of like cases for Manslaughter where motor vehicles were involved. The cases go back to 1991 and no case after 2012 is included within the table. The only matter that involves a street race is the decision in Borkowski. The facts in that matter are more serious than the matter presently under consideration in that there were three vehicles involved in the race, the driving was for a much longer distance and two people were killed. There was also "some impairment of his driving skills from both intoxication by alcohol and drugs"- see Howie J at [10]. I have already observed that the facts in that matter are more serious than that presently under consideration.
2. In Borkowski Howie J (McClellan CJ at CL agreeing, Simpson J (as her Honour then was agreeing with additional comments relating to the decision of Pullman v R ) said at [65]-[66]: "Each of the sentences imposed upon the respondent was itself manifestly inadequate. A sentence of 7 years with a non-parole period of 4 years for the offence of manslaughter relating to either one of the two victims reveals that the Judge's assessment of the criminality of the respondent must have fallen well short of what it should have been. The inadequacy of the sentences was compounded by an accumulation between the two sentences of only 2 years. [66] The very least sentence that could have been imposed upon the respondent was, in my opinion, a total sentence of 12 years with a non-parole period of 9 years. Had I been the sentencing judge, I would have imposed a greater sentence. But it is the sentence that I would propose if the Crown appeal were allowed in recognition of the fact that this is a Crown appeal and the application of the principle of double jeopardy."
3. It is to be noted that in the decision of Borkowski the Court of Criminal Appeal declined to intervene on discretionary grounds essentially on the basis that the Crown brought an appeal against the sentence imposed in respect of only one of the offenders. Howie J did not indicate what sentence he would have imposed. He indicated however that the discount for the plea should have been no more than 15%. It is tolerably plain for the last sentence in [65] of his Honour's judgment that he was of the opinion that the level of accumulation should have been more than two years.
4. However Howie J did say at [59]: "But however the manslaughter was described, it was an offence of the utmost seriousness because of the danger it posed to other persons in the vicinity, because of the flagrant breach of the road rules involved and because the loss of life was almost inevitable…"
5. As indicated above, the facts in the matter presently under consideration are not as serious as those in Borkowski. However, the comments made by Howie J extracted above apply to this matter. There was very considerable danger to other persons on or in the vicinity of Coleman Street at the time the driving was taking place including the passengers in the respective vehicles of the two offenders. There was also a flagrant breach of the road rules and loss of life was almost inevitable.
6. I also note what Howie J said in Borkowski at [58]: "Of course the offence of manslaughter is notorious for the range of conduct falling within its scope and hence the width of the sentencing discretion when punishing for that offence. This is no doubt why there is no standard non-parole period prescribed for the offence. However, when sentencing for the offence, like all offences, the court must take into account the maximum penalty prescribed by the legislature. Further in cases of motor manslaughter, in my opinion, the sentence to be imposed must also take into account the fact that there is a structure of offences dealing with the occasioning of death through driving and that manslaughter stands at the very pinnacle of that structure as the most serious offence. In particular the sentence must take into account that there is a less serious offence of causing death by driving under s 52A(2) of the Crimes Act that carries a maximum penalty of imprisonment for 14 years. Of course it does not follow that the sentence for manslaughter must exceed the maximum for the less serious offence or that the sentence for manslaughter is in some way calculated using the maximum sentence for the other offence: Markarian at [31]."
7. In his written submissions Mr King analyses a number of other cases of motor manslaughter. However so far as I can determine it is only the matter of Borkowski that involves offenders deliberately embarking upon a street race.
8. In an endeavour to obtain some guidance and assistance as to the appropriate starting point of the sentence in this matter I also considered a number of decisions involving serious examples of offences of Dangerous Driving Occasioning Death. One of those is Lehn v R to which I referred when dealing with the issue of the discount for the pleas of guilty. I also considered the decision in Conte v R [2018] NSWCCA 209.
9. It is plain enough from a review of those decisions and moreover the decisions reviewed in the joint judgment of Payne JA and Button J in Conte v R at [12] noting that the appeals by the appellants in Lehn v R and Conte v R were successful (both by majority) that there has been an upward movement in the sentences imposed in respect of serious driving offences since the decision in Borkowski.
10. I also note that at [15] and [23] in Conte v R, Payne JA and Button J refer to the offender's youth. Given the well-established line of authority as set out in the decisions of TG v R and WW v R, I interpret this as meaning that the young age of the offender is taken into account in the instinctive synthesis approach rather than something in mitigation in accordance with authorities such as Locke v R (2010) 207 A Crim R 34; [2010] NSWCCA 296.
11. I also note that in Conte v R Payne JA and Button J gave an indicative sentence of a head sentence of 9 years for a serious example of the aggravated form of the offence contrary to s 52A of the Crimes Act. The maximum penalty was 14 years and there was no discount for a plea as the matter went to trial. Their Honours also said at [22]-[23]: "Ultimately, the test to be applied when considering whether a sentence is manifestly excessive or manifestly inadequate is whether the sentencing outcome is simply and unaccountably too severe or too lenient, having regard to all relevant objective and subjective features in each case. Applying that practical test to this outcome, we respectfully cannot accept that this aggregate sentence is appropriately reflective of the applicant's youth, his deprived upbringing, the fact that all offences arise from one incident, and the fact that the maximum penalty for aggravated dangerous driving causing death is imprisonment for 14 years, as opposed to the maximum penalty for manslaughter of imprisonment for 25 years."
12. This is yet another practical example of the statement of principle on the significance of the maximum penalty prescribed by Parliament in respect of an offence by the plurality in Makarian v The Queen. In the matter presently under consideration for the reasons I have given I have determined that this matter is above mid-range for vehicular manslaughter.

General Remarks

1. In passing sentence I will need to give proper effect and regard to sections 3A and 5 of the Crimes (Sentencing Procedure) Act. Section 3A sets out the purposes of punishment, namely: 1. to ensure that the offender is adequately punished for the offence, 2. to prevent crime by deterring the offender and other persons from committing similar offences, 3. to protect the community from the offender, 4. to promote the rehabilitation of the offender, 5. to make the offender accountable for his or her actions, 6. to denounce the conduct of the offender, and 7. to recognise the harm done to the victim of the crime and the community.
2. Section 5 of the Crimes (Sentencing Procedure) Act provides in effect that a court should not impose a sentence of imprisonment unless having considered all possible alternatives no other sentence is appropriate. Given the maximum penalty of 25 years, the offending and the need for general deterrence clearly a sentence of imprisonment is the only appropriate sentence. Likewise, given the offending and what will be the length of the sentence the sentence for both offenders must involve a substantial sentence of full time custody. I did not understand counsel for either of the offenders to submit otherwise.
3. Both offenders are entitled to a finding of special circumstances. The factors that entitle them to that finding are their ages, the fact that this is the first time in custody and that they will both require an extended period of supervision to ensure their proper and appropriate reintegration into the community. With the offender Byrne there is the additional factor of ensuring that he receives the appropriate treatment for his ADHD and counselling in respect of alcohol and substances.
4. Counsel for both offenders at the sentence hearing, as they are professionally obliged to do, set out and emphasised the factors in favour of their respective clients. Cahill is slightly less morally culpable and has a slightly stronger subjective case including a clear record. Byrne is slightly more morally culpable and has the record of driving matters. However he also has the issue of the adult ADHD which I have dealt with at some length. This offending is very much a matter of a joint criminal enterprise. As I said earlier in these reasons both offenders abandoned responsibility when they applied the accelerator of their respective vehicles at the traffic lights at the intersection. After a very great deal of consideration I have come to the determination that the various competing issues and factors for each of them lead to the conclusion that the same sentence should be imposed in respect of both of them.
5. Again, after a great deal of consideration I have determined that the appropriate starting point in respect of both offenders is 14 years imprisonment from which is deducted the 25% for the utilitarian value of the pleas resulting in a total sentence of 10 years and 6 months. For reasons already enunciated both offenders are entitled to a finding of special circumstances.

Orders

1. Mathew Thomas Cahill in respect of the offence that: "(You) on 23 October 2017 at Turvey Park in the State of New South Wales did unlawfully kill Craig Ian Smith", contrary to s 18(1)(b) of the Crimes Act, 1900. You are convicted.
2. I sentence you to a non-parole period of 7 years to date from 4 June 2019 and which will expire on 3 June 2026.
3. Thereafter there will be a period on parole of 3 years 6 months to date from 4 June 2026 and which will expire on 3 December 2029.
4. You will be eligible for release to parole at the expiration of the non-parole period and I recommend that release.
5. The non-parole period is two thirds of the total sentence. The sentence indicates a finding of special circumstances, the reasons for which have been enunciated within these reasons.
6. You are disqualified from driving for the automatic period of 3 years. Section 206B of the Road Transport Act, 2013 applies and any period of suspension should be taken into account.
7. Joshua Aaron Byrne in respect of the offence that: "(You) on 23 October 2017 at Turvey Park in the State of New South Wales did unlawfully kill Craig Ian Smith", contrary to s 18(1)(b) of the Crimes Act. You are convicted.
8. I sentence you to a non-parole period of 7 years to date from 18 September 2019 and which will expire on 17 September 2026.
9. Thereafter there will be a period on parole of 3 years and 6 months which will date from 18 September 2026 and which will expire on 17 March 2030.
10. You will be eligible for release to parole at the expiration of the non-parole period and I recommend that release.
11. The non-parole period is two thirds of the total sentence, which indicates a finding of special circumstances, the reasons for which have been enunciated within these reasons.
12. You are disqualified from driving for the automatic period of three years. Section 206B of the Road Transport Act, 2013 applies and any period of suspension should be taken into account.
13. In respect of the offender Cahill I direct that a copy of the report from Dr Neilssen, which is part of exhibit 1 be annexed to the warrant that is forwarded to the Department of Corrective Services.
14. In respect of the offender Byrne I direct that a copy of the report of Dr Dayalan, which is part of exhibit 2 be annexed to the warrant that is forwarded to the Department of Corrective Services.

Amendments 26 May 2020 - Para 197 and 203 amended to include reference to s206B. 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: 26 May 2020