R v Conway

[2021] NSWDC 198

District Court of NSW|2021-02-26

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Source facts

Court

District Court of NSW

Decision date

2021-02-26

Source

Original judgment source is linked above.

Judgment (6 paragraphs)

[1]

Judgment

The first thing I want to say, Mr Conway, addressing you, it is my practice to tell people in advance what the sentence is going to be because most prisoners are more concerned about that than s 3A of the Crimes (Sentencing Procedure) Act 1999 and the like.
In your case I propose to fix an aggregate sentence of 11 years imprisonment to commence on 21 June 2021, which is at the expiry of your current non‑parole period. This is in accordance with traditional sentencing practice. Because in fixing your non‑parole period I have to take into account that two year, four month period. I have adjusted your non‑parole period to make a finding of 'special circumstances' because of the effect of accumulation. Your non‑parole period will be seven years, expiring on 19 January 2028, ultimately the total sentence imposed upon you effectively from what I am doing at the moment is to fix a sentence that is, taking into account your current custody, 13 years and four months with an effective non‑parole period of nine years and four months. You will have a balance of sentence of four years.
I have to fix indicative sentences. The indicative sentences I fix are ten years imprisonment for the manslaughter matter, three years imprisonment for the failing to stop and render assistance and three years' imprisonment for the stealing of the motor vehicle. The sentence for the stealing of a motor vehicle is entirely concurrent with the other sentences. I do that because I have taken into account, if I can call it an aggravating factor, the fact that you were not entitled to be driving upon the road in any car on that day. Both because you were a disqualified driver and because you were driving a car that did not belong to you. So far as failing to stop and render assistance, failing to render assistance is factored into the manslaughter matter to some extent but I impose that sentence with the acknowledgement that it is partly concurrent but accumulative to the extent of one year upon the sentence for the manslaughter, hence I have arrived at the sentence of 11 years.

[2]

The Facts

The key facts of the matter so far as the driving was concerned are essentially set out at [183]-[223]. The taking of the car without consent is also discussed in the judgment. 1. The deceased was killed by impact of the Land Rover, to which I have earlier referred, and his vehicle at approximately 4:35am on 15 January 2019. At the time of impact the Land Rover was being driven in a roughly "northerly" (some witnesses called it "westerly") direction on the wrong side of the road, firstly along the bus lane adjacent to the kerb for 'southbound' traffic merging into the outside lane just before impact. The precise description of Wyong Road at the location is that it provides two lanes for traffic travelling "north" and two lanes for traffic travelling "south", however approximately 18.6 metres south of the collision location the road widens to 3 lanes for south-bound vehicles, the third kerbside lane being a designated bus lane along which the Land Rover travelled from Mingara Road traffic lights for approximately 500 m before the collision. There was a raised median strip between the northbound and southbound lanes, with some vegetation growing out of part of it but not obstructing vision of oncoming vehicles. The weather was dry; it was dark with street lighting along Wyong Road directly above where the Land Rover came to rest. The road surface was clear of debris and was not a contributing factor to the collision. There was no mechanical defect found in either vehicle that contributed to the collision. The Land Rover was travelling at a maximum speed of 120 km/h in a 60 km/h zone up to 5 seconds before impact but decelerated with braking about 1 second before impact, no doubt a reaction to seeing Mr Hill's car. It was travelling at 100km per hour one second before the brakes were applied (because it was negotiating a bend) and was, after the application of the brakes, travelling at 73.4 km per hour at the time of impact. 2. The deceased's vehicle endeavoured to avoid collision by moving towards the kerb but struck the Land Rover head-on, principally on the driver's side. The momentum of the Land Rover was much greater than that of the Kia by reason of its greater speed and weight. The impact forced the Kia back 20.1 metres from the point of impact represented by a gouge mark in the road surface which was adjacent to the inside unbroken line approximately half a metre from the kerb of lane 1. The contributing factors to the collision lay with the driving of the Land Rover. The sweep of the bend at the point of collision and the obstructed line of vision for both vehicles gave limited time for either driver, perhaps no more than a second or two, to react. No driver travelling in a southerly direction would expect a motor vehicle to approach from the opposite direction in that lane. The occupant (or occupants) of the Land Rover decamped immediately after the collision within little more than 30 seconds.
The much greater momentum of the Land Rover caused considerably more damage to the Kia than to itself. Although I accept the Land Rover's headlights were on, as no doubt were the Kia's. Mr Hill could not reasonably expect to come across a motor vehicle emerging from the bus lane into lane No.1 (the kerbside lane) in which the Kia was lawfully travelling. Further, both the driver of the Land Rover and the driver of the Kia would have had less than two seconds to react to the impending collision that could not be avoided, despite the belated efforts by both to do so. The location of the greater damage to both vehicles on the driver's side shows that Mr Hill at least, endeavoured to turn away from the impact with obvious lack of success because of a lack of real opportunity. Other relevant matters to the character of "negligence" of the accused include the fact that the driver of the Land Rover deliberately turned onto the incorrect side of the road from the traffic lights at Mingara Drive before turning left into the extreme outside lane from the median strip (the third or Bus Lane) for approximately 500 metres from the lights before merging to the point of collision and travelled at high speed for a substantial part of that distance. Based on the evidence of Police Officer Scarfe, the Land Rover was on the incorrect side of the road and passed at least two cars driving in a southerly direction that took evasive action to prevent or lessen the risk of collision with it on the stretch of road between the Mingara Drive lights and the point of collision about 500 metres "north". The significance of this fact occurring so close in time to the point of collision is that it would have demonstrated to the driver of the Land Rover, if he had been prepared to heed the fact, that this was not a deserted road, notwithstanding the early hour of the morning and that the risk of other vehicles approaching him that he could not see and could not expect to see until the last moment was real, not imaginary or remote. There were at least 2 cars following in the same direction closely behind Mr Hill's car; further people put at risk.
The stolen car was accelerating steeply as it approached the bend as the evidence of Mr Scarfe and Ms Scott makes clear. Mr Mauii and Ms Scott made clear its course of travel with the description of the vehicle passing them and accelerating away from them just before the point of collision. Further, the peak of the acceleration was ongoing at five seconds before the point of impact, and had been maintained as the straight stretch of road began to curve, thus quickly restricting the line of vision towards oncoming traffic. The driver of the Land Rover gave Mr Hill no chance whatsoever and the tragic outcome, although not intended by the accused, was inevitable. More importantly, in the context of what was reasonably foreseeable, the collision occurred with a very high risk that really serious bodily harm would occur to other road users, including any other occupants of the Land Rover. The accused was driving a substantial vehicle, sometimes described as an SUV, which objectively is, or was, larger in mass than the average sedan which might reasonably be foreseen to be travelling on that stretch of road at that time and a large vehicle that he could not have had any experience of driving. Another matter to consider is that the Land Rover, driven as it was on the south-bound side of the road, could not reasonably be expected to cross over to the correct side of the road until the next roundabout, perhaps 400-500 metres or so to the north.
In relation to Count 3, having regard to the many lies the prisoner told after the event to avoid conviction for his wrongdoing, it is clear the prisoner fled the scene without any regard to Mr Hill's welfare solely to avoid apprehension and punishment for his obvious criminal conduct. He was driving a car that had been "stolen" by him and he had driven in an obviously highly dangerous manner. His actions, as described by the two eyewitnesses who saw him get out of the driver side, reveal a person who did not pause at any point to check on the welfare of the driver of the other car. Obviously, there must have been a driver in the car that the Land Rover collided with. The impact was significant, the Kia was significantly damaged, more so than the Land Rover, as was obvious from even a cursory examination of both cars, "driven back" 20 metres from the point of impact and, as Exhibit Q shows, steaming.
The accused's actions after the collision showed no regard for the welfare of the other driver. Therefore he failed to stay and give assistance that might be necessary and was within his power to give. As I pointed out in my judgment, the measure of assistance that might be necessary and was within the power of the accused to give is that Mr Mauii, as I pointed out to him when he gave evidence, selflessly went to the aid of Mr Hill, tried to extricate him from the vehicle, and applied apparently some resuscitation assistance, as did Mr Tahi Tahi and then some others who I do not know. It was necessary to endeavour to extricate Mr Hill from the Kia if it was possible because there was the obvious threat or possibility of fire and Mr Hill was obviously very seriously injured with many injuries that required immediate attention even if by unskilled hands. It was within the power of the accused (bearing in mind, as his counsel points out, there is no direct admission or evidence of the accused being affected by drugs) to provide rudimentary assistance which was necessary to assist Mr Hill before emergency services arrived. No reasonable person, in the position of the accused, could contemplate standing around to await the arrival of police and ambulance which of necessity would have been minutes away at the very earliest.

[3]

Other Evidence

A Sentencing Assessment Report was prepared at the direction of the Court and tendered by the Crown. It noted the prisoner's current sentence, the failure of the prisoner in July 2019 to attend and complete a residential rehabilitation program that led to the revocation of his bail and the use of intravenous drugs by him whilst then on bail. He has some institutional misconduct findings although these matters are of some age now and not significant. His parents are supportive by telephone and video visits as is his partner (he claimed), although there is a non-contact ADVO in place in relation to her as a protected person. Not surprising given that he head- butted her. He has limited education and employment although his last Centrelink payment was made in September 2019.
The report noted his interest in completing vocational programs in custody but he has yet to be offered a placement. He sought to characterise the current matter as his "first adult conviction" which is not correct, either chronologically or in reality. In his letter to the Court and to Community Services Officers he ignores his driving convictions and his actions in December 2018. He referred to being "on the run" at the time of the offending, blaming illicit substances and "negative peers". I point out in relation to this matter that there was evidence of him being an associate of drug users and thieves but it is quite clear that he was no better than his associates. In fact, worse in one sense, endeavouring to blame his associates for his own wrongdoing.
It was suggested that he was providing to the reporter "inconsistent reports", firstly saying that he hadn't driven a motor vehicle since his licence was disqualified, but then admitting that he was "driving at some point" in the evening which was clearly the case by reason of the CCTV footage of him driving at the McDonald's restaurant at Bateau Bay. He again endeavoured to shift the blame to his "associations". He gave contradictory accounts concerning his efforts to avoid offenders of like mind in the report to that given to custodial case management staff in January 2020. The account he gave to the reporter was inconsistent with the obvious facts of this case.
It is concerning again to note his history of drug abuse, his claims of its adverse effect upon his mental health and then claiming that illicit substances were the main factor to his current offending, stating that he; "…used ice, got in a fight and then bang - car crash".
I appreciate in the context of other findings I made, that most things said by the prisoner about this offending are unworthy of acceptance except where he makes admissions against interest. The representations in the Sentencing Assessment Report are consistent with an admission of drug use at the time of the offence. But as to any "admissions" about driving they are equivocal. This is also consistent with the character of the relationship he had with other people he accompanied to Terrigal from where the car was stolen, and their use of drugs. Whilst drug use is a background to the offending I agree with the submission of his counsel, which I will refer to later, that I cannot be satisfied beyond reasonable doubt that his judgment was impaired by the use of drugs. But that having been said, it is not a matter in the circumstances that if found would aggravate the objective seriousness of this offending. Because, as I will analyse shortly, the course of driving by the prisoner for a period of over 40 minutes (although I accept he wasn't always driving in the same way throughout that period of time) was deliberate conduct on his part, in my view making his moral culpability for the offending as great (at least) as than if his judgment and decision making was impaired by reason of the influence of drugs to which he was addicted.
The reporter's assessment reflects upon his attempt to "minimise his behaviour through oversimplification". The prisoner's description of his life over the four months before the fatal collision is described as "not a streamlined course of events as suggested (by him) but a chaotic period of at least four months since the breakdown of his relationship". The report noted the prisoner had been a participant in an 'opioid substitution' therapy since 2 September 2020 to address substance abuse concerns and he had been compliant with that regime. He has been treated in custody for depression and anxiety and received medication and psychological intervention. He receives supervised medications to treat depressive symptoms.
As for taking responsibility for his conduct, in any way that may be consistent with his plea, he claimed to be "sorry" for the offence but appeared to focus on the impact the offending has had on himself, including the possibility of a lengthy custodial sentence. In fairness, he was reluctant to discuss the facts of the case in the context of lodging a conviction appeal which is entirely his right.
His history of supervision has been limited in the past and in fact supervision was terminated only six weeks after it was ordered in 2017 on the basis that he was assessed as being at "medium - low" risk of offending. This was clearly a mistake by Community Corrections. That is no longer the case and he is assessed at a "medium - high" risk of re-offending according to the actuarial instrument used by Community Corrections. In my view having regard to his criminal history and his conduct in the period of time leading up to and subsequent to this offending that is a fair assessment, if somewhat understated. At this stage of his life, given all the evidence available to me, I would rate it as "high".
The prisoner produced a report from a psychiatrist which does not identify in my view any psychiatric illness or condition which would warrant a reduction in the weight to be given to general deterrence in the context of what are sometimes called 'De La Rosa [2010] NSWCCA 194 (per McLellan CJ at CL, at [177]-[178]) principles'. The report of Dr Adam Marten dated 9 December 2019 was prepared for the purposes of sentencing in relation to the reckless wounding and related matters which I've earlier referred. It gives some history of employment, drug use and medication prescribed whilst in the community. It sets out a history of drug use since about the age of 14 and a relapsing pattern of substance abuse over a number of years with abstinence for some period of time and then return to illegal drug use. It notes a history of the prisoner having suffered pancreatitis at the age of 15 and a fractured eye socket after being assaulted when 18 but with no loss of consciousness or other "neurological problems".
Part of his history is that he was born in the United Kingdom came to Australia the age of two with his mother and father having a "normal" home life. He said that he had been "kicked out of home" at a young age and had a considerable period of time "couch surfing". He had been in a relationship with a woman, who in another document he says, gave birth to a son in 2015. But that relationship is problematic given the facts of the assault occasioning actual bodily harm and reckless wounding offences. He could not be described as a man with "family" responsibilities.
His primary trouble in the opinion of the psychiatrist was a "substance use disorder", most recently amphetamines, with a mixed history of detoxification and attempts at rehabilitation. Whilst the prisoner referred to paranoia and hallucinations when using drugs in the time prior to the offending in December 2018 he gave conflicting accounts of the circumstances of the relevant offending. It was noted that the reckless wounding on the psychiatrist's formulation occurred in the context of, "anger and suspicion following relationship conflict and jealousy, fuelled by methamphetamine intoxication". His offending did not appear to have occurred, "in direct nexus to mental illness per se". That is obviously the case here. His attempts to rationally explain his way out of trouble in his police interviews makes that clear
He is said to require residential drug and alcohol rehabilitation and his prognosis will be improved by meaningful engagement in study or vocational training, with Justice Health psychiatrists monitoring his medication. The psychiatrist did not form the opinion that he was suffering a major mental illness but that he is a person with long term poor coping abilities and prone to emotional dysregulation. He will benefit from; "behavioural programs aimed at addressing criminogenic traits while in custody" and "potentially in the community"… "Such efforts will hopefully reduce the risk of recidivism"
The prisoner produced a letter to the Court in the hope that would help the court to understand a little more of who the prisoner is as a person. He discussed his teenage years, the importance to him of his child and claimed that for a number of years he had "stayed out of any trouble and had no serious criminal charges". As with his explanation for the reckless wounding and related charges there was minimisation of the seriousness of the conduct. He claimed that he'd spent nearly 10 years "distancing himself from undesirables"; a claim as earlier noted, not accepted by Community Corrections and not demonstrated in the evidence in this case. He referred to the "terrible accident" involving the deceased and said that he'd written to the deceased's family asking them to "forgive me and that I am sorry" in the circumstances I could not accept this as a genuine expression of contrition. I note, after saying that he had written to say that he was sorry, he went on to write; "I don't want to sound selfish though since the car accident I'd suffered mentally. I have bad dreams every 2 to 3 nights of the collision I also dream about Mr Hill. The crash is without a doubt the worst thing I've ever been involved in in my life. I still find it hard to accept that my actions caused the crash, I will suffer with that and the flashbacks for the rest of my life. I have let down the Hill family, I have let down my family I have let down myself and I have let down my son". This, in my view, is a classic case of "confess and avoid", or self interest.
He states that he should have stayed and tried to help Mr Hill, which is true and described himself as, "running away like a coward" which is also true. He claimed that the accident and the situation around it was "extremely out of character for me", stating that he had never been involved in anything like it (before)". I accept that he never been involved in a fatal collision before. Although I don't accept his assertion that he had; "not been known for anything bad around the area or on the Central Coast for that matter" (before).
He referred to his family being a good family; that he didn't want to be seen as a monster and having made a "terrible mistake". He did not want to be understood as being a person who is in and out of prison incapable of learning from his mistakes. He said that it will be his last time in prison. He understood he needed to be "punished" and understood the severity of the situation. He also said that he was concerned about the outcome and again reiterated that he had made "a terrible mistake", but again dissipated his responsibility by tying the impact upon the deceased's family with the impact upon his own family. He asked me to see this as a "terrible accident" and that the courts will "never see him again". The prisoner is not a "monster", a label perhaps reserved for the worst type of criminal like Ivan Milat, but the evidence in this case portrays a completely irresponsible, conniving individual.
I have quoted from the document extensively, not to satirise the prisoner, nor to increase the anguish to the deceased's family, but to show the lack of insight of the prisoner, notwithstanding his protestations to the contrary, and to emphasise the lack of contrition. This was a terrible event, but it was not an "accident". Commonly in motor vehicle matters where the misconduct of others leads to the death or serious injury of others people are prone to regard this type of event as a motor vehicle "accident". Many of the events are criminal conduct, even if no death or serious injury results. This collision was rendered inevitable as the facts revealed by deliberate conduct of the accused in circumstances where the risk to others (including himself) must have been obvious and to any responsible person and where by reason of the position on the road that he drove, the speed that he drove at and the character of the road, sweeping bend provided no escape for anybody who reasonably would have been expected to be coming in the opposite direction. The fact that he passed two other vehicles at least on the same stretch of road in the seconds before the collision should have made clear as well as the arrival of the car from the same direction as Mr Hill made clear.
I have received at the last minute a reference from the prisoner's mother. Although the Crown objects to relying upon hearsay assertions for good reason I am prepared to accept that the letter is available to show that the prisoner at the present time has support from her. Her statements about his state of mind and attitude I cannot accept given the state of all the evidence available to the court.
I will return to the characterisation of the offending, in the context of the fact-finding I made and the submissions made by the parties at a later time.

[4]

Submissions

The prosecution and the defence provided written submissions supplemented by oral submissions. I will deal with the written submissions firstly of the Crown and then of the defence.
The Crown cited extracts from my judgment to which I have earlier referred. The Crown noted that the prisoner drove the stolen vehicle continuously since the time it was taken by him, and was observed driving the vehicle at least as early as 3:55am in a similar reckless manner, as the facts of the case concerning the impact revealed. It characterised the accused's manoeuvre as described in the facts and briefly summarised before as "deliberate", as was clearly the case.
The Crown submitted that the objective seriousness of the offence having regard to the objective features were that as a crime of manslaughter was much more serious than "culpable driving" and it would be an error to approach the matter by reference to sentencing for "culpable driving" cases. The verdict of manslaughter imported a finding of "abandonment of responsibility" causing death. Many other people were put at risk over a period of time but particularly, other people were put at risk immediately before the impact, the vehicle having reached a speed of 120 km/h five seconds prior to the collision, only had its brakes applied one second prior to impact, clearly when the deceased vehicle was seen for the first time in circumstances where because of the prisoner's driving he could not avoid a collision. The vehicle being stolen, he being a disqualified driver and seeking to avoid apprehension for the offence he committed on 17 December 2018, reflected a significant level of criminality.
The Crown analysed in the written submissions, the criminal history of the prisoner and his driving history which I have done. I generally agree with his analysis.
The Crown submitted that the prisoners record of previous convictions was an aggravating factor pursuant to s 21A(2), as were the breaches of conditional liberty. It was further submitted that the fact that he was "on the run", aware of the arrest warrant in relation to the stabbing incident, was a matter to be considered pursuant to s 21A(1) rather than as a matter under s 21A(2) which is correct. I accept these submissions.
It was noted that there were few manslaughter driving cases arising from gross criminal negligence. But the Crown particularly relied on the decision of the Spark v R [2013] NSWCCA 140, seeking to summarise the pertinent facts, the discount given for the pleas of guilty and the resultant sentence, noting the fact that there was no plea of guilty in this matter. It noted in that matter that it was a police pursuit matter with speeds of up to 185 km/h being registered with an average speed of 146 km/h over 5 km. The offender was suffering from sleep deprivation due to methylamphetamine abuse and the weather conditions were wet and overcast. But the prisoner was contrite and had prospects of rehabilitation.
The Crown also referred to R v Borkowski [2009] NSWCCA 102, cited by the defence, as containing propositions of significance. It was a Crown appeal. The Crown was correct to submit that, in cases of vehicle manslaughter, the sentence to be imposed must take into account the fact that there is a structure of sentences dealing with the occasioning of death through driving and that manslaughter stands at the very pinnacle of that structure. It is the most serious offence (apart from murder) and in that matter, that the sentence imposed at first instance of nine years with a six year non-parole period was a "manifestly inadequate sentence", with one of the appellate judges expressing his opinion as to what the appropriate sentence was, the appeal dismissed in exercise of discretion.
The Crown also referred to a decision of R v Cramp [1999] NSWCCA 324, which involved criticism of the comparison of the offending as manslaughter with offending pursuant to s 52A Crimes Act 1900, but ultimately held that the sentence imposed (nine years four months imprisonment with a non-parole period of seven years) was not manifestly excessive. The offence was one involving driving over a distance of 35 km, in circumstances where the accused who had encouraged a learner driver to drink and drive at speed and was not actually the driver himself, was "too drunk to drive", yet the learner driver had a blood alcohol reading of 0.167.
The Crown also referred the Court to R v Do [2000] NSWCCA 459, Crown appeal in which I appeared for the respondent and which was dismissed. That was a failed brakes case and bears no comparison with this matter in terms of the moral culpability of the prisoner. It was a much more lenient sentence than required in this matter, but it is not relied upon by the defence in any event and bears no comparison with this case.
Crown also referred the Court to Reynolds v Regina [2015] NSWCCA 29. This was a boating manslaughter that also, in my view, bears no relationship to this case.
Having regard to all the decisions cited by the Crown, ultimately it argues that the crime of manslaughter has to be seen as the "pinnacle" of the structure of offences dealing with death through driving and that no attempt to align the facts and penalties imposed in "culpable driving" cases should be attempted as this is to ignore the structure of driving offences and the penalties attaching to.
I should point out that no attempt was made by Counsel for the accused in submissions to draw comfort from "manner dangerous cause death" cases. The comparative cases referred to in his helpful submissions were all mainly manslaughter cases relating to the use of vehicles. It must be said however, that there are cases (more rare than manslaughter cases) of vehicles being used to cause death where the appropriate charge is murder which obviously is a more serious charge than manslaughter.
The Crown correctly identified the fact that there was no contrition or remorse from the prisoner, emphasised by his attempt to blame somebody else for his own conduct.
In referring to the "purposes" of sentencing pursuant to section s 3A of the Act, the Crown correctly stated there was a need to deter the prisoner and others from committing similar crimes and that this was a dominant feature of the matter. Also adequate punishment, making the prisoner accountable for his conduct and denunciation of his conduct and recognition of the harm done to the victim of the crime and the community. The Crown is correct to identify these matters as significant factors in this particular sentencing exercise. I agree that denunciation, deterrence and accountability are of paramount importance. Promoting the prisoners rehabilitation is a relevant factor as well. All the purposes of sentencing in s 3A of the Act have work to do but the promotion of the prisoners rehabilitation is not at the forefront.
The Crown submitted that I should not make a finding of "special circumstances" pursuant to s 44 as was made in the earlier sentencing exercise to which I referred for the reckless wounding offence. It was submitted that a substantial sentence will, by reason of the "statutory ratio" outcome of the fixing the relationship of the non-parole period to the balance of sentence, provide sufficient period of time to promote the prisoners rehabilitation and assist him in adjusting to community living, relevant factors in regard to matters under s 44 of the Act.
The Crown also submitted the Court should consider aggregate sentences, with a commencement date of the 23 June 2021, as I would understand it being the expiry date of the current non-parole period. The Crown drew the Court's attention to the victim impact statements which were read on behalf of the victim's wife and son. They are short and to the point, devoid of hyperbole and have been properly taken into account in accordance with the legislation and the case law which I need not state. It is understood the loss of a respected loved one travelling home from or to work, suddenly without warning, through no fault of the deceased, without the opportunity of saying goodbye, deprived of that person's company and support in the years ahead, would be and is a crushing blow to the widow, his son and the deceased's wider family and friends. This is self-evidently so and is a direct consequence of the reckless and needless conduct of the prisoner. I have noted the proper continuing interests of the widow and other family and friends consistent with the sentiments expressed in the victim impact statements.
In oral submissions the Crown made a number of points in response to the defence case and in respect of the submissions of the counsel for the accused which were, to be fair, considered and restrained. The Crown submitted that the comparative cases referred to by the defence largely involved sentences where there were discounts for pleas of guilty. This was a case that required consideration of at least partial accumulation and regard to the totality of the criminality which was increased by the character of the offending. Whilst there was an abandonment of responsibility by the prisoner (a term arising from the guideline judgment of Jurisic from 1998) the offending was of a very high order of moral culpability but was not the worst case.
Further it was submitted that Spark was not a "comparative case" rather a case relied upon for its principles relating to the irrelevance of consideration of sentences in respect of dangerous driving cause death (culpable drive) cases.
The prosecution submitted that the prisoner's letter, not tested in cross examination was not a letter of apology or an expression of remorse.
The defence written submissions summarised the maximum penalties and referring to Borkowski (earlier cited) at [49] submitted that the relevant principles were; 1. manslaughter encompasses a very wide range of offending conduct and heads of liability, but there is no "hierarchy of manslaughter verdicts" making one type more or less serious than another. By that, Justice Howie was stating that negligent manslaughter was no less or more serious than unlawful and dangerous act manslaughter or manslaughter by provocation, where there is required to be proven an intent to kill or cause grievous bodily harm. 2. manslaughter sits above the offence of dangerous driving causing death in the hierarchy of motor vehicle death cases. It is unproductive to consider what an appropriate sentence may have been if the offender had been convicted of the less serious offence. This is correct. 3. it was not erroneous to have regard to the list of aggravating factors identified in Whyte [2002] NSWCCA 343 (the guideline judgment in relation to sentencing pursuant to s 52A Crimes Act 1900). This may be correct but there is no need to do so here. 4. there is limited utility in seeking to position the objective seriousness of any given offence upon a "notional range" 5. guidance can be obtained from sentences imposed by other courts for similar offending, however the weight given to the particular feature will not always be the same. The other cases do not establish "the correct range". This may be correct.
So far as the instant case is concerned it was noted; "driving on the incorrect side of the road at the speed which he did and on the length of road that deprived oncoming drivers of the opportunity to take evasive action… The prisoner demonstrated a complete abandonment of responsibility. The driving involves criminality of a very high order".
Nevertheless there were other matters to take into account suggesting the offence was not in the worst category of cases; 1. The offender did not set out to deliberately injure someone, nor was the offending "planned" in any general sense. 2. It was conceded that the evidence is incapable of establishing beyond reasonable doubt that there was a lengthy course of driving preceding the collision during which the vehicle was being driven dangerously although the findings of the court deprived the offender are of a finding that the driving leading to the death of Mr Hill was isolated. This last proposition is correct. 3. There is some evidence the prisoner had sought to buy drugs prior to the collision but there is no evidence capable of establishing beyond reasonable doubt that the offender's capacity to drive the vehicle was impaired 4. Traffic in the area was light reducing both the number of people actually put at risk of those potentially at risk 5. Only one vehicle was involved and that the offender was not involved in any street race or police pursuit.
The prisoner did not stop to assist but that requires a discrete sentence because of the pleadings. Whilst the degree of speed is an aggravating factor "none of the other aggravating factors" identified in Whyte arise, it is submitted.
It was conceded his record disentitled him to any leniency. The prisoner had limited convictions for violence and had periods of crime free behaviour, thus, his criminal history was not an "aggravating factor".
The sentence for the reckless wounding offence and related offences was his first term of imprisonment; he has already been in custody for a substantial period of time. This offence predated his charging and incarceration in relation to the reckless wounding offence and thus he has not yet had the opportunity to demonstrate the impact of that sentence upon him and his capacity to lead a law-abiding lifestyle. His traffic record is poor but there were no major "safety" offences. The absence of a full opportunity to demonstrate the specific deterrent effect of his first lengthy sentence of imprisonment means that the principles in Veen (No2) (1988) 164 CLR 465 were not engaged. These matters have been taken into account.
By reference to the psychiatric report, prepared in December 2019, the prisoner has had a background of a struggle with drug addiction, he has of record of sporadic employment and that Dr Marten's opinion that the prisoner has "long-term poor coping abilities and is prone to emotional dysregulation" was to be taken into account I would assume by regard to his conduct in reaction to this offending.
It was conceded that his prospects of rehabilitation are guarded, having attempted some rehabilitation programs and having been able to remain abstinent for some periods of time as reported in Dr Marten's report.
It is open to the court to impose an aggregate sentence having regard to the totality of the criminality noting the observations of Pearce v R [1998] HCA 57 at [45]-[48]. Also the court should have regard to the decision of Gorman [2002] NSWCCA 516. In Pearce, which was a conviction appeal, the majority noted at [45]-[46]; "to an offender the only relevant question may be "how long" and that may suggest that the sentencing judge… should have regard only to the total effective sentence that is to be or has been imposed on the offender. Such an approach is likely to mask error. A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of accumulation or concurrence, as well, of course, as questions of totality (Mill v The Queen (1988) 166 CLR 59, at 62 - 63). Sentencing is not a process that leads to a single correct answer arrived at by some process admitting of mathematical precision… It is, then, all the more important that proper principle be applied throughout the process."
Further to the authorities cited by counsel for the accused, reference should be made in passing to the principles in R v Hammoud (2000)118 A Crim R 66, at [7], and the 11 principles summarised by his Honour Hall J in R v XX (2009) 195 A Crim R , at [52], particularly principles numbered 1,2,3,4,5,6,7.
Oral submissions of Counsel for the accused address the issue of special circumstances pursuant to s 44 of the Act, in terms of the written submissions and the acknowledgement that there may need to be some accumulation of sentence. There were some further oral submissions made about the objective seriousness of the offending, reiterating the absence of evidence of intoxication and the fact that the prisoner did not deliberately set out to hurt someone. Specific submissions were put in relation to comparative sentencing, totality and the absence of additional aggravating factors apart from the breach of conditional liberty.

[5]

Conclusion

In the context of the facts found, to which I earlier briefly made mention but are extensively set out in my judgment in support of the verdicts and, noting the submissions of the parties, despite the concession properly made that the conduct of the prisoner was an abandonment of responsibility and that the evidence reveals not a momentary or brief period of reckless driving. I accept the submission of the learned Crown Prosecutor and the defence that the offending is not a worst-case (in the circumstance of a single case of manslaughter). But it is quite fairly to be seen as a very serious example of manslaughter by use of a vehicle which and this is close to the apex of offending of this type where the criminal misuse of vehicle has led to the death of another.
The gross negligence the prisoner is to be considered in the context of a course of reckless driving over an extended period of time. Every time that the vehicle was observed travelling around the Bateau Bay, The Entrance, Killarney Vale, Tumbi Umbi areas of the northern regions of the Central Coast. These observers included two off duty police officers, people driving on the road going to and from work and the people that he had been with earlier in the night and from one of whom he had been given the opportunity to take the vehicle at Terrigal. He drove the vehicle at these various times without any regard for the safety of other road users as he did when he came into impact with the deceased's vehicle. As pointed out in the submissions and as I found, the deceased had no chance of avoiding a collision. Given the power and size of the vehicle the prisoner was driving, of which he would have been fully aware, the vehicle in question had an advantage in safety features and momentum over most other road users, certainly over the smaller less sophisticated vehicle driven by the deceased. If the car driven by the deceased had a passenger or passengers there is a very strong probability that they would be killed or very seriously injured given the state of the KIA after the impact driven back 20 metres from the point of impact. The prisoner acted without regard to the welfare of other road users and particularly at the time of impact with the deceased. He showed further lack of regard for him by abandoning him to be cared for by others to preserve himself from being arrested for other crimes he knew he had committed, and the crimes he had committed in taking the car and driving it knowing that the owner had did not consent to him driving it and driving it whilst disqualified. In other words, in circumstances where he had absolutely no right to be on the road. Even if it could be fairly said that there were no additional aggravating factors pursuant to s 21A(2), other than his breaches of conditional liberty, which are significant in themselves, taking into account the aggravating factors that properly arise under s 21A(1), it was a very serious case of mismanagement of a vehicle with what can only be regarded as having inevitable results. Even allowing for the time of day and the number of road users that were on the road at the time. He was at the time of impact not only a threat to Mr Hill, but to those travelling behind him, to those he passed from the time he left the lights.
In dealing with the issue of totality of criminality in the context of the submissions made by both parties I note ultimately that the total sentences I impose should be a cumulative upon the non-parole period fixed by the sentencing judge in respect of the other matters to which I have referred. That is the appropriate way in my view in most cases for sentencing an offender to terms of imprisonment, that offender having been sentenced previously (whether by the same OR a different Judicial Officer to a term of imprisonment with a non-parole period), subject to consideration, if it is capable of being done, as to whether the previous non-parole period was, in the view of the second sentencing Judge, irrelevant course of its inadequate length or its excessive length.
In this matter I propose to commence the sentence from the date of the expiry of the previous non-parole period fixed, but I am not constrained by the earlier sentencing Judge's finding of "special circumstances", or the proportion of the non-parole period of the sentence amongst other reasons because the earlier sentencing Judge would not have sentenced the prisoner with knowledge of the character of his offending conduct with which I am now concerned. It was open to her Honour to take a different view of matters relevant to that finding in terms of the relationship of the non-parole period to the balance of sentence such as prospects of rehabilitation, likelihood of re-offending, danger to the community and the like, given the different character of that offending to that with which I am concerned. I have determined that there are "special circumstances" by reason of the effect of accumulation of the aggregate sentence I impose upon the non-parole period of the sentence imposed for the reckless wounding matter and the 'partial accumulation' I impose here to reach the aggregate sentence. I am not bound to fix a non-parole period that bears the same "percentage" relationship to the total sentence as was fixed by the previous Judge. Although I am prepared to make a finding of "special circumstances" by regard to the matters I have already identified and acknowledging the need to provide the prisoner with professional assistance also to adjust to community living and to provide support to address matters relating to his history of drug dependence (pursuant to s 44 of the Act). The adjustment I make is not as great as the previous Judge given the fact that I am fixing a more significant sentence and that in that context the balance of sentence is more substantial and will provide sufficient time to address matters relevant to the promotion of his rehabilitation in the community and his adjustment to community living.
It is in this context of course that one notes nowadays that findings of "special circumstances" in sentences for murder (absent the special circumstances of accumulation or partial accumulation of sentence) is not common because the yardstick sentences for murder are of such a length that a non-parole period of 75% of the head sentence (in past years sometimes called the "statutory norm" having regard to the terms of s 9 (Sentencing Act) 1989 and s 44 of the current Act) provides sufficient time for the period of parole supervision to perform its rehabilitative function.
So far as comparative cases provided by the defence were concerned (counsel provided a schedule of those cases) it was noted some commonality of features within the facts. It was submitted by counsel for the prisoner that the case of Woodbridge [2010] NSWCCA 185 was most comparable. I have read the detail of that case and the other cases in the schedule closely. It is not comparable to this case in a range of ways. Whilst the offender was highly intoxicated with a very high blood alcohol level and had driven for 9 km in that condition the court held there was no evidence of dangerous driving until the time of the accident and no suggestion that she exceeded the speed limit anytime nor offended any other road rules. She was a person of otherwise good character and some weight in sentencing had to be given to her emotional and psychiatric problems, including "even the trigger for the commission of the offences", bearing in mind that she pleaded 'not guilty' on the basis of 'non-insane automatism', the subject of the related conviction appeal. The Crown appeal was upheld on the basis that the Judge at first instance had failed to reflect the need for deterrence and had failed to adequately assess the objective seriousness of the offending.
Another comparative case relied upon by the defence was the case of Smith [2020] NSWCCA 181. This was an appeal against sentence for a single death caused by manslaughter where the driver was highly intoxicated and where she had to findings of guilt previously for drink-driving, one in 1998, for an offence of "special" prescribed concentration of alcohol, and another for a 'high range prescribed concentration of alcohol' offence in 2016. The sentence was reduced on appeal because the judge erred in fixing a starting point of 12 years imprisonment before applying the discount for the plea of guilty. The Court of Criminal Appeal found that the prisoner's moral culpability had been diminished by reason of childhood deprivation, although the assessment of moral culpability was not to 'swamp' the assessment of the objective gravity of the offence. The prisoner was found to be contrite, and her likelihood of re-offending would be extremely unlikely depending upon her commitment towards rehabilitation in relation to drug and alcohol use that had arisen from her upbringing. The appropriate starting point in her case was 10 years imprisonment without a plea of guilty all matters considered. It can be seen that that offender had a substantially more favourable subjective case, particularly in the context of the assessment of moral culpability.
As to the other cases cited by counsel for the prisoner, Falzon was a case involving a conviction appeal where the prisoner had been sentenced to 12 years imprisonment with a nine year non-parole period and where the sentence was reduced, in part, because the conviction appeal was concerned with the issue of incompetent representation. The court noted in re-sentencing that the prisoner would have pleaded guilty if he had received competent advice about the matter. In that case there was reference to other decisions, not cited before me, including Stevens (CCA - unreported, 15 August 1993) where a man killed a person and caused serious injuries to another and abandoned the car, sentenced to 8 years with a minimum term of 5 years 6 months. That offender was 18 years of age, had an almost clear record and real prospects of rehabilitation. Another case cited in that judgment was Ryan [2000] NSWSC 724, a truck driver driving on the wrong side of a six lane highway affected by with amphetamines, pleading guilty to manslaughter, sentenced to 7 years 10 months imprisonment with a non-parole period of five years 10 months. Contrite and with significant personal issues, minimal record found to be "reliable and hard-working".
With regard to Borkowski, cited by the accused and the Crown in relation to matters of principle, that was a case involving two manslaughters, killing an elderly couple whilst the offender was street racing with another person for which the offender was sentenced to a total sentence of nine years with a six year non-parole period. That appeal by the Crown was dismissed an exercise of discretion (which apparently no longer happens in the Court of Criminal Appeal) where the court held that the appropriate sentence was 12 years imprisonment primarily because the Crown had not appealed against the sentence of a co-offender. The case of Young [2009] NSWCCA 298, where for single manslaughter the sentence was 8 years with a 5 year non-parole period, that appellant had a "very favourable subjective case", was 22 years of age at the time with no criminal record and only one violation of the relatively minor nature on his traffic record. It was an offence cited as "amongst the more serious of its kind". But the outcome has to be seen in the context of many more favourable mitigating factors. Duncan [2012] NSWCCA 781 is not comparable having regard to the number of dead or injured. The subjective case was more favourable than for this accused.
In fixing the appropriate sentence I have had regard to each of the sentences imposed in those cases, acknowledging the differences in pleas and the relevant discount that arises, the differences in totality of criminality and the differences in the extent of moral culpability and character of the offending in its proper context. It would seem that a starting point of 12 years for a singular case of manslaughter has been found excessive for cases that are not the 'worst case'.
There is only one mitigating factor in this matter pursuant to s 21A(3) of the Act established. The offences were "unplanned" as that term is understood in the section (s 21A(3)(b)). But as far as I am aware from my experience and by regard to the various cited decisions, "planning" is not a feature of this type of criminality as a rule, nor for that matter is "deliberately" setting out to injure or kill someone. If it was the case then the proper charge would be the more serious charge of murder.
I cannot conclude that the prisoner is unlikely to re-offend or that he has good prospects of rehabilitation, notwithstanding my findings in relation to "special circumstances" in relation to his need for professional assistance.
In fixing the aggregate sentence, bearing in mind the fact that the prisoner was driving a stolen car which he had stolen and thus had no right to drive for that reason alone, as well is being a disqualified driver, I am of the view that the sentence for the stealing of the car ought be concurrent with other sentences to be imposed. However the sentence for the failure to stop and render assistance should be not entirely concurrent with the sentence for the manslaughter offence. The only excuse the prisoner had for failing to stop was the selfish one of self-preservation from arrest in relation to offences that he later pleaded guilty to and had no proper reason to avoid apprehension. It was not as if he knew of an allegation against him that he believed was false or that he believed that he was being prosecuted unfairly or something similar. The sentence for the manslaughter matter should be partially accumulative upon that other sentence but the accumulation, should be the extent of 12 months. That does not reflect what would be an appropriate non-parole period for that offence if it stood alone because even with a finding of "special circumstances", such was sought by his counsel a non-parole period for that offence or any of these offences of 50% would be inadequate.
As for the sentencing for the steal motor vehicle, I point out his management of the vehicle showed no regard for the interests of the owner or the person in control of the car in having the opportunity to use the car again, maintaining it as mechanically sound and/or free from damage. But, on the other hand, the stealing of the vehicle has been taken into account as intimately bound up in the assessment of the gravity of the principle offending.
Finally, I have taken into account the current COVID-19 restrictions on visits and movements; they principally affect his current sentence with the prospect of the loosening of restrictions in the future with widespread immunisation but I accept that limited access to outside support and programs will continue at least in the near future.

R v Conway

At a glance

Court

Decision date

Source

Judgment (6 paragraphs)

Parties

Cases Cited (17)