(2) A court that sentences an offender to imprisonment for six months or less must indicate to the offender, and make a record of, its reasons for doing so, including:
(a) its reasons for deciding that no penalty other than imprisonment is appropriate
…"
49 In 286 para 215 of Whyte the Chief Justice set out the second limb of the guideline in Jurisic which Judge Bellear quoted in his remarks on sentence. The Chief Justice, continued:
"216 I had earlier set out a list of aggravating factors which had been established in the authorities as follows:
'(i) Extent and nature of the injuries inflicted.
(ii) Number of people put at risk.
(iii) Degree of speed.
(iv) Degree of intoxication or of substance abuse.
(v) Erratic driving.
(vi) Competitive driving or showing off.
(vii) Length of the journey during which others were exposed to risk
(viii) Ignoring of warnings.
(ix) Escaping police pursuit.'
217 Further consideration of the authorities would cause me to amend this list by changing (v) to read 'erratic or aggressive driving' and adding:
(x) Degree of sleep deprivation.
(xi) Failing to stop.
218 I went on to say at 231:
'Paragraph (i) and par (ii) focus on the occurrence, whereas pars (iii)-(ix) refer to the conduct of the offender. The presence of these latter factors may indicate that the offender has abandoned responsibility for his or her own conduct. When the presence of such a factor can be so described, then it can be said to be present to a material degree for purposes of determining an appropriate sentence.'
219 It was after this passage that the two limbs of the guideline in Jurisic were set out.
220 I said at 231 that the formulation of whether 'the relevant aggravating factor manifest[s] in the circumstances of the case, that the offender has abandoned responsibility for his or her own conduct' involves an element of judgment on which sentencing judges could reasonably differ.
221 I also said at 231:
'The period of three or two years, once the threshold of abandoning responsibility has been reached, is a starting point. The presence of additional aggravating factors, or their increased intensity, will determine the actual sentence.'
222 As indicated above, Kirby J's reasoning in Wong turned in part on the impermissibility of judicial creation of a subcategory or subset of an offence defined by statute. Also as indicated above, the joint judgment made comments critical of such conduct, but its reasoning did not turn on this proposition. The statutory power to give guidelines now vested in the Court by s37A should not be exercised in such a way that the guideline can be categorised as a 'subcategory' or 'subset' of an offence defined by statute. It was submitted that the Jurisic guideline was of this character because of the reference to 'abandonment of responsibility'.
223 As set out above, the guideline in Jurisic was expressed in terms of an aggravating factor involving the offender's conduct being present 'to a material degree'. The factors identified all related to the moral culpability of the offender. The reference to 'abandonment of responsibility' was one formulation for describing a high degree of moral culpability. The case law subsequent to Jurisic does not suggest that it has been applied as if it were a statutory test.
224 The joint judgment in Wong referred with approval at [61]-[62] to the judgment in Police v Cadd (1997) 69 SASR 150 which identified a relevant differentiating factor for sentencing purposes to be 'the ordinary case of contumacious offending', as explained in the judgment of Mullighan J. This appears to me to perform a similar function to the formulation 'abandoned responsibility for his or her own conduct' in Jurisic .
225 I should note that no issue of quantum arose in Cadd. This is understandable as the maximum sentence for the offence with which the Court was there concerned was only six months imprisonment.
226 In Wong , the 'subset' or 'subcategory' point arose in the context of considering the Canadian case of McDonnell , in which the majority identified the references in prior Canadian intermediate appellate decisions to 'major sexual assault' as such a category. It is desirable to reformulate the Jurisic guideline to ensure that it does not suffer from the same inadequacy and is more clearly of the character of 'contumacious offending' referred to in Cadd.
227 Furthermore, the terminology of the second limb of the Jurisic guideline may be seen to have an undesirably prescriptive tone, notwithstanding the express observations that it was not to be prescriptive. Again a reformulation is suggested.
228 In the above list of aggravating factors, items (iii)-(xi) are frequently recurring elements which directly impinge on the moral culpability of the offender at the time of the offence. Individually, but more often in some combination, they may indicate that the moral culpability is high. One way of expressing such a conclusion is to ask whether the combination of circumstances are such that it can be said that the offender has abandoned responsibility for his or her own conduct. That is not the only way of expressing such a conclusion.
229 The guideline for offences against s52A(1) and (3) for the typical case identified above should be:
'Where the offender's moral culpability is high, a full time custodial head sentence of less than three years (in the case of death) and two years (in the case of grievous bodily harm) would not generally be appropriate.'
230 In the case of a low level of moral culpability, a lower sentence will, of course, be appropriate.
231 In the case of the aggravated version of each offence under s52A, an appropriate increment to reflect the higher maximum penalty, and what will generally be a higher level of moral culpability, is required. Other factors, such as the number of victims, will also require an appropriate increment.
232 The guideline is, to reiterate, a 'guide' or a 'check'. A sentence imposed in a particular case will be determined by the exercise of a broad discretion taking into account all of the factors required to be taken into account by s21A of the Crimes (Sentencing Procedure) Act.
233 This guideline focuses attention on the objective circumstances of the offence. The subjective circumstances of the offender also require consideration. For the reasons I have given above, when discussing the proportionality cases, particularly Dodd , this approach reflects the principle of proportionality as discussed in those cases. No submission was made to this Court that the new s21A of the Crimes (Sentencing Procedure) Act inserted by the 2002 Act, affects this line of authority.
234 Insofar as this guideline involves a 'two step' approach to sentencing it is, in my opinion, as a 'check' for the reasons given above, consistent with an ultimate decision that involves the exercise of a broad discretion, sometimes referred to as an instinctive synthesis."
50 In the light of the decision in Whyte the preferred expression of the guideline relevantly should be that where the offender's moral culpability is high, a full-time custodial head sentence of less than three years (in the case of death) would not generally be appropriate. Quite apart from excessive speed and inattention, an important aspect of the sentencing process was the well-justified conclusion that the sentencing Judge reached, namely that in the language of Veen (No 2) at 477 the appellant had manifested in his commission of the offence charged a continuing attitude of disobedience of the law. It was quite open to the sentencing Judge to conclude that retribution, deterrence, and protection of society indicated in this case that a more severe penalty was warranted than if in the guideline language the appellant was a young offender of good character with no or limited prior convictions. Looked at from that point of view alone I would not be persuaded that the sentence was so severe as to suggest error.
51 There are, however, two other matters that are significant. Judge Bellear was satisfied that the jury did not accept the appellant's contention that he was not aware that 80 kilometres per hour speed limit signs were in place as indicated on the evidence. The judge found that the appellant had ignored the 80 kilometres per hour speed limit sign. There was no evidence to support that finding and it was not essential to the verdict of guilty. With respect, the sentencing Judge could not take into account such a deliberate and culpable refusal to pay regard to a speed limit sign unless it was proved beyond reasonable doubt. To the contrary, in so far as there was evidence, it was that at the time of the accident the appellant was not aware of such a sign. Neither, according to his unchallenged evidence, was the other driver, Troy Davis.
52 The second matter of concern is his Honour's statement that no benefit was to flow to the offender for remorse or contrition as none had been shown. In this respect the sentencing Judge was not helped by the appellant giving no evidence on sentence.
53 It was submitted that the appellant's admission of all elements of the offence save the dangerousness of his driving showed both contrition and willingness to facilitate the course of justice; R v Cameron (2002) 76 ALJR 382 at 385. In addition there was uncontradicted evidence from several witnesses that the appellant was distressed to the point of being suicidal by the death of his de facto partner and was truly contrite for having caused that death. It was submitted that a plea of not guilty particularly where a loved one is killed and the issue is one of degree of negligence involved does not preclude either remorse or contrition.
54 The sentencing Judge in his remarks on sentence referred to this evidence. The appellant's mother, Mrs Christoff, said that her son had known the deceased for approximately twelve months before the accident and had lived in a de facto relationship with her for about eight months. Since the accident the appellant had become quieter and not as happy- go- lucky as he once was. Immediately after the accident he became very depressed and remained in his bedroom for long periods. While he was residing with Mrs Christoff's daughter, Debra, it came to her notice that the appellant had been talking about committing suicide. Members of the family placed him under constant observation. The appellant had not had any medical or professional help in this regard since the accident. Mrs Christoff said that her son was "Kind, loving, do anything for anybody. Nothing was too much trouble for him. He's always been a good son. Always tried to make sure I was looked after".
55 Ms Judith Amanda Holmes, the licensee of the Royal Hotel at Mandurama, gave evidence that she had known the appellant for approximately 13 to 14 years and that the accident causing the death of Ms Kennewell totally devastated him. It was his first real girlfriend with whom she said he was totally in love. She observed after the accident that he became very withdrawn and "almost suicidal". Ms Holmes said that the appellant was one of the good guys in the community, that he was loyal, trustworthy, and she would not hesitate to leave him with the children. She was aware of the appellant's criminal record and his traffic record and she still had no hesitation in saying what she said.
56 Mr Gregory Ulph lived at Lindhurst. He had known the appellant for 20 years or more and had seen him grow up in the area. He had also worked with him at the abattoirs and went guarantor for him to purchase a motor vehicle. He said the appellant never missed one payment when paying off the vehicle by instalments. Over the 12 months before sentencing Mr Ulph had seen a lot of the appellant. He described him as a very good friend. "Just like a pair of brothers that, you know, who just get on well and you know, he respects me and I respect him". The appellant would go out of his way to help you out and you appreciated that very much because of Mr Ulph's disability. He described him as a very gentle person. "Like I say, he'd give you the last dollars or the shirt off his back, you know".
57 Mrs Debbie Ruth Turner also gave evidence on the appellant's behalf. She knew him well as she grew up in a house near where he, his mother and his sister lived. The appellant would assist her and her children when they were growing up, particularly after she and her husband separated. He was like a big brother to the children and assisted them with their homework. She gave evidence that she could not fault him. After the fatal accident she said she noticed a change in him, that he seemed reserved, very quiet and she had worried about him. She was concerned as she knew how deeply he was hurting and at times she was worried he might self-harm.
58 None of the witnesses gave evidence that the appellant had expressed remorse or contrition. They did, however, give uncontradicted evidence about their observations of him. I do not accept that the evidence did not demonstrate remorse by the appellant, that is to say, deep and painful regret for his wrongdoing. Indeed, in this case, such evidence may be more powerful than a self-serving statement by the appellant from the witness box. I do not accept that the evidence did not demonstrate contrition in the sense that the appellant was sincerely penitent for what he had done. The appellant would have to be an inhumanly hard-hearted person not to be remorseful and contrite for having killed the deceased, whom Ms Holmes described as "his first true love".
59 The evidence about the appellant can be distinguished from that provided to the Court in R v Qutami (2001) NSWCCA 353 which led to Smart AJ's observation at 58-59:
"In this case reliance appears to have been placed on statements made by the prisoner to psychiatrists and the psychologist. While those statements are admissible in evidence, very considerable caution should be exercised in relying upon them when there is no evidence given by the prisoner. In many cases only very limited weight can be given to such statements.
There has been a noticeable and disturbing tendency of more recent years for prisoners on a sentence hearing not to give evidence and to rely on statements made to experts. Prisoners should realise that if this course is taken great caution will be exercised in respect of the weight, if any, given to those statements."