R v Cook

] NSWSC 600 R v Whyte (2022) 55 NSWLR 252; [2002] NSWCCA 343 R v Winter (2012) 225 A Crim R 572; [2012] NSWCCA 218 RO v R [2019] NSWCCA 183 Smith v R (2020) 93 MVR 345; [2020] NSWCCA 181 Spark v R [2012] NSWCCA 140 Woodbridge v R (2010) 208 A Crim R 503; [2010] NSWCCA 185 Category: Sentence Parties: Rex (Appellant Crown) James Cook (Respondent) Representation: Solicitors: Solicitor for Public Prosecutions NSW (Appellant Crown) Legal Aid Commission of NSW (Respondent)

Counsel: Ms M England (Appellant Crown) Ms M Avenell SC (Respondent) File Number(s): 2019/206586 2019/370769 Publication restriction: Nil. Decision under appeal Court or tribunal: District Court Jurisdiction: Criminal Citation: [2022] NSWDC 157 Date of Decision: 13 May 2022 Before: Priestley SC DCJ File Number(s): 2019/206586

HEADNOTE [This headnote is not to be read as part of the judgment] Mr Cook (the respondent) pleaded guilty to seven offences committed in four separate episodes over a six month period whilst he was on conditional liberty. This included two offences of manslaughter, one offence of recklessly cause grievous bodily harm, one offence of aggravated break and enter and commit serious indictable offence, one offence of supply prohibited drug, one offence of possess shortened firearm and one offence of possess loaded firearm in a public place. A further six offences were dealt with by way of the "Form 1" procedure pursuant to s 32 of the Crimes (Sentencing Procedure) Act 1999 (NSW). The respondent was sentenced to an aggregate sentence of 14 years imprisonment with a non parole period of 9 years by Judge Priestley SC on 13 May 2022 in the District Court at Coffs Harbour. The Crown appealed on the ground that the aggregate sentence imposed was manifestly inadequate. The central argument was that the indicative sentences on the driving and firearms offences were too low. The Court held, dismissing the appeal (per N Adams J, Kirk JA and McNaughton J agreeing): 1. Consistent with well established principles, the Crown was required to establish that the aggregate sentence imposed was manifestly inadequate in the sense that it is "unreasonable or plainly unjust". Something more must be shown than that the appellate court may have taken a more lenient or harsh view of the matter: [123]. House v The King (1936) 55 CLR 499; [1936] HCA 40; Byrne v R; Cahill v R (2021) 97 MVR 85; [2021] NSWCCA 185 applied. 1. The Crown accepted there was no patent error made by the sentencing judge and instead submitted that a possible explanation for what was said to be a manifestly inadequate sentence was the manifestly inadequate indicative sentences for the driving and firearm offences. Although the appeal is against the aggregate sentence imposed pursuant to s 53A of Crimes (Sentencing Procedure) Act 1999 (NSW), it is permissible to have regard to the indicative sentences in order to address a ground asserting manifest inadequacy of an aggregate sentence: [129]. Certain of the indicative sentences were very lenient but they were not too low: [176]. JM v R (2014) 246 A Crim R 528; [2014] NSWCCA 297, discussed. 1. The assessment of whether the aggregate sentence is manifestly inadequate was made difficult in this matter by the number and variety of offences upon which the respondent was sentenced. Determination of the Crown appeal therefore required consideration of the relevant sentencing principles for manslaughter, infliction of grievous bodily harm, supply prohibited drugs, firearms offences, and aggravated break enter and steal in the context of the application of the totality principle, the Form 1 procedure and the Bugmy principles: [127]; see also [2]-[5] per Kirk JA. 2. The proper approach when sentencing Form 1 matters in accordance with s 32 of the Crimes (Sentencing Procedure) Act 1999 (NSW) is to take into account the matters for which guilt has been admitted with a view to increasing the penalty that would otherwise be appropriate for the particular offence: [162]. Although it is not apparent that the sentencing judge increased the indicative sentences on the three driving offences to reflect the callous behaviour constituting the s 52AB offences as permitted, even if the court was satisfied there was an error in this approach, that alone would not lead to the conclusion that the indicative sentences were manifestly inadequate: [171]-[172]. Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518. 1. There was no ground of appeal contending that the sentencing judge erred in his assessment of the objective seriousness of the driving offences. Despite this, the Crown made a number of complaints about those findings, in particular by reference to other decisions of this court concerned with vehicular manslaughter. The other cases relied upon by the Crown did not assist in establishing the sole ground of manifest inadequacy and were all distinguishable: [143]-[150]. Smith v R (2020) 93 MVR 345; [2020] NSWCCA 181; Woodbridge v R (2010) 208 A Crim R 503; [2010] NSWCCA 185; Duncan v R [2012] NSWCCA 78, and Crowley v R [2021] NSWCCA 45, discussed. 1. The aggregate sentence imposed was not manifestly inadequate in the sense of being unreasonable or plainly unjust, although it was lenient: [176].

JUDGMENT

1. KIRK JA: I agree with the judgment of N Adams J and add the following.
2. The sentencing judge in this matter was faced with a very difficult sentencing exercise. The respondent pleaded guilty to seven charges, falling into four categories. Six further offences on a Form 1 were required to be taken into account, attaching to five of the seven charges. Vehicular manslaughter charges are, of themselves, not easy to sentence. The conduct on the Form 1 relating to the respondent's actions immediately after the car crash was significant and disgraceful. Some of the conduct the subject of the seven charges was linked, some of it was distinct, which made assessing totality more than usually complex. The conduct occurred whilst the respondent was out in the community on conditional liberty because of other offences. There were significant subjective features pulling in different directions. Those features included the threats made to the respondent as a consequence of the deaths he caused. These matters were carefully considered by the sentencing judge.
3. Sentencing is never mathematical, but the difficulty of this particular sentencing exercise was such that different sentencing judges might reasonably have reached quite a wide range of conclusions as to the appropriate sentence.
4. The Crown alleges latent error in the sentencing process. In order to establish the kind of error alleged by the Crown it was necessary to show that the sentence imposed "is unreasonable or plainly unjust" such that this Court "may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance": House v The King (1936) 55 CLR 499 at 505; [1936] HCA 40. As it was put in Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 at [443]: "Intervention is only warranted where the difference is such that it may be concluded that there must have been some misapplication of principle, even though where and how is not apparent from the reasons of the sentencing judge, or where the sentence imposed is so far outside the range of sentences available that there must have been error."
5. As N Adams J explains in her comprehensive judgment, there is good reason to regard the sentence imposed as a very lenient one. However, in the context outlined, I am not persuaded that this Court should infer error in the sentencing process. The ground of manifest inadequacy is not made out.

Agreed Facts

1. The respondent was sentenced on the basis of agreed facts which his Honour set out in his judgment at [6]-[15] (the driving offences), [31]-[38] (the drug offence), [39]-[45] (the break and enter offence) and [46]-[48] (the firearms offences). Although his Honour's reasons are published online, I will briefly summarise them here.

The driving offences

1. On 9 December 2018, the respondent was "ripped off" in a drug deal in which he handed over $7,000 and, contrary to the arrangement, did not receive any crystal methamphetamine ("ice") in return. In order to recover his money, he pursued the vehicle containing the people who had his money at high speed along the Pacific Highway near Grafton. It was an agreed fact that he drove in an "intimidatory" and "predatory" manner and in doing so misjudged how close the two vehicles were to each other. When his vehicle unintentionally came into contact with the other vehicle, it caused the driver to lose control and crash. Daniel Elliott and Jared Ward were killed and the third passenger, Renee Fox, suffered grievous bodily harm.
2. The background to the car chase is that the respondent and Mr Ward had grown up together. They knew each other well. In 2014, Mr Ward seriously assaulted a member of the respondent's family and was imprisoned for two years. The respondent provided a statement to police about the assault and Mr Ward was convicted and sentenced to imprisonment. When he was released in July 2015, Mr Ward held a grudge against the respondent and decided to get his revenge.
3. In December 2018, Mr Ward and his friend Mr Elliott conspired to arrange a drug transaction with the respondent with the intent of defrauding him. They organised to meet with the respondent to sell him two ounces of ice for approximately $7,000. In fact, Mr Elliott and Mr Ward intended to steal the $7,000 and not provide the respondent with any drugs.
4. Prior to the meeting with the respondent, Mr Elliott prepared a bag of rice as "fake" ice at the home of Ms Fox, who was a friend. She was told that the plan was to "rip off" the respondent. She borrowed a friend's car, a silver Mitsubishi Lancer ("the Lancer"), to travel with Mr Elliott to Halfway Creek to meet the respondent.
5. The respondent and Mr Ward travelled together in a Holden Commodore to the agreed location and arrived shortly after 7:00 pm on 9 December 2018. Mr Elliott and Ms Fox arrived after that. The respondent and Mr Elliott got out of their respective vehicles and met at the back of the Lancer.
6. It is unclear what exactly occurred next. The respondent's account is that Mr Elliott physically overpowered him, leaving him unconscious for a few seconds. Mr Elliott then took the respondent's money and returned to the front seat of the Lancer which then was driven off at a very high speed. When the respondent regained consciousness, he got into the Commodore and chased after the Lancer. Both cars drove onto the Pacific Highway in a northward direction. Crash investigator analysis estimated both vehicles were travelling at 144 km/h, 610 m after entering the Pacific Highway.

The drug offence (count 5)

1. The drug offence occurred between 18 March 2019 and 30 June 2019. The charge is a "rolled up offence": 72.25 g was the total amount of methylamphetamine that the respondent supplied to 21 different people in 53 separate transactions.
2. On 15 March 2019, police obtained a telephone intercept warrant in relation to the respondent's mobile telephone. They did this as the respondent was the primary suspect in the driving offences investigation. In doing so, they uncovered the respondent's drug dealing activity. Between 15 March and 3 July 2019, conversations and messages between the respondent and other individuals were monitored and lawfully recorded. They recorded 38 supplies of amounts between 0.3 and 4.6 g with amounts greater than 1.75 g being supplied on only five occasions. A further 15 supplies took place amounting to 21.75 g in total.
3. Based on the quantities supplied and the manner of his communications with purchasers, which was largely by text and on an ad hoc basis, his Honour was satisfied that the respondent was a "user-dealer" who supplied ice to fund his own addiction and pay his own debt. It was accepted that the respondent was well imbued in the business of drug supply although his role was "only marginally above" that of a street level dealer.
4. Two similar offences were taken into account on a Form 1. The first of these was taking part in the supply of 112 g of methylamphetamine between 20 and 23 June 2019. The respondent was called by another drug dealer and asked to assist in the supply to a disgruntled purchaser. The second Form 1 matter concerned the deemed supply of 9.6 g of methylamphetamine found at his premises on 3 July 2019.

The break and enter offence (count 4)

1. The break and enter offence occurred on 14 June 2019 between 12.30am and 2:30am. The respondent and Mr Goodwin cut through the perimeter fence of a location in Schwinghammer Street, South Grafton.
2. On 11 June 2019, three days before the offending, the respondent had noticed deliveries, including telephone cabling, being made to Schwinghammer Street. He had discussions with several other associates about the logistics of breaking and entering into the location and removing the property.
3. The respondent and Mr Goodwin cut the padlocks on two storage containers from which they took various construction tools and equipment including various tools and two large rolls of copper wire. The total value of stolen items was $66,000.
4. On 3 July 2019, the respondent was arrested on the other matters and found with some items of property from the theft in his vehicle. A subsequent search of his premises found the remainder of the property taken on 14 June 2019.

Firearms offences (counts 6 and 7)

1. The firearms offences arose from searches carried out upon the arrest of the respondent on 3 July 2019 for the break and enter offence (count 5). A search was conducted at his home at 105 Armidale Road.
2. A home-made firearm was found hidden inside the dashboard of the respondent's vehicle (count 7). As police were rendering the firearm safe, a live .22 cartridge fell from inside the gun barrel and on to the ground.
3. Police seized a trailer belonging to the respondent which contained various personal belongings. A shortened firearm was found inside a locked metal cabinet in the trailer (count 6). A live .410 cartridge was found in the breech of the shotgun in breach of s 65(3) of the Firearms Act which prohibits possessing ammunition unless the relevant licence or permit is held. That offence was taken into account on a Form 1.

The Crown case

1. The proceedings on sentence took place on 26 April 2022. The Crown tendered the three statements of agreed facts, the Indictment, Form 1 documents, criminal and custodial histories and a document listing the stolen property. Six victim impact statements prepared by the family and friends of the deceased were tendered as well as one from Ms Fox. They can be briefly summarised as follows.

Victim impact statements

1. Greg Elliot's father described his son's character and qualities and how they had kept in contact whilst waiting for his parole to be granted. He spoke of his son's success securing employment, his hobbies, and his relationship with his family. Mr Elliot's mother, Diane Elliot, expressed a deep sadness for the loss of her son and detailed how this affected her emotionally. Mr Elliot's sister, Kristy-Anne, expressed her strong love for her brother, her sadness at his death and her anger that he was taken from her and her family; he will not be able to witness the birth of her child, nor bear witness to important milestones in her life and her children's lives.
2. Jared Ward's mother, Deborah Wallbank, and sister, Matisse Ward, both described how the death of their son and brother has affected them. Ms Wallbank described how her family's life was changed forever that day and the fact that he received no assistance while in the car haunts her. She expressed sadness at the nephews and nieces he would have loved to meet, and watch grow up. Ms Ward wrote of how since the death of her brother she has experienced bouts of anxiety for which she has been medicated and sought psychological counselling for her grief. The long court process has prevented her from finding closure and moving on from the death of her brother. It has also financially impacted her as she did not return to her job until February 2019. She and her partner postponed their plan to start a family as she was grieving. She expressed that she wanted to forgive the respondent as part of her personal healing process but feels very conflicted by his lack of remorse.
3. Ms Fox detailed how her injuries have affected her physically, socially, and psychologically. She is always fatigued, in "constant pain" and when something touches her scars it feels "like a hot knife" and is incredibly painful. Her mental health has suffered. She has experienced difficulty socialising since the accident and feels that she does not know who she is anymore. She stated that since the accident "my whole life has changed".

The defence case

1. The respondent did not give evidence at the proceedings on sentence. He relied on the following documents to put his subjective case before the court.
2. A psychological report of Luke Brabant dated 29 July 2021 was tendered which sets out the respondent's background in some detail. His Honour had regard to the matters outlined in that report and they are summarised below at [67]-[83].
3. The respondent wrote a letter of apology dated 11 April 2022. In this letter he noted that he could not read or write properly, and his solicitor had typed out the letter. He indicated that he wished he could read it in court but, as he cannot read, he would not be able to do so. He directed particular remarks to the families of Mr Ward and Mr Elliott and also to Ms Fox and her family. He expressed how badly he felt about causing the deaths and how that has impacted on their families. He concluded his letter in these terms: "I think all the time about this, I dream about it and have nightmares about what I did that day. Not a day goes by that I don't think about what happened on that day. I always think about what I could have done different to avoid everything. If there is anything that I can ever do to make it up to any of you, I would like to and I would like to tell you how sorry I am for my actions that day and for causing the accident. I would like to say sorry for any mental trauma or stress that I have caused youse all."
4. Certificates were tendered showing that the respondent had attended the remand addictions course and the remand domestic violence course as well as completing 10 sessions of the CONNECT resilience program. A Certificate I in Skills Vocational Pathways and a Certificate I in Information, Digital Media and Technology were also tendered.
5. A letter of Dr Cooper, dated 13 April 2022, confirmed that the respondent's mother has Chronic Obstructive Pulmonary Disease and a life expectancy of less than five years.
6. A letter from the respondent's sister confirmed what the respondent had told Mr Brabant about his dysfunctional childhood. Without intending any disrespect to her, I have extracted a portion of that letter in its original terms to the extent that it confirms the child sexual assault and the father's violence: "Dad would say that we would not get job that we would just be sweepes and call us names he call James shite ass and shitey pants he kicked brother on the ass one day and hit he's ball they blow up like grapefruit. There was a lot of drug use around us we was tired up all day just for only to touch finger to peca of bread with butter and water all day for breaking all nan and pops eggs We whent on a few camp but there was one stuart house that something happen went we was at home a while later brother was upset I was sitting with he he said a man done something to him and astarted really upset brother started poo hims self and he did not stop weeing the bed to he was 13 he's life was just one big struggle and one's he started using drug he' life was spiralling the family started stay away from him".

The remarks on sentence

1. It is pertinent to state at the outset that his Honour provided very detailed reasons. It is not suggested by the Crown that he made any patent error. Somewhat paradoxically, this has made it difficult to provide a brief summary of his reasons as his Honour dealt with everything that was put to him, all of which was relevant to the aggregate sentence he ultimately imposed. I propose to summarise his reasons under the headings: objective seriousness, victim impact statements, Form 1 matters, subjective case (including Bugmy findings), relevant principles and totality.

Objective seriousness

1. His Honour found that the manslaughter offences (counts 1 and 2) were in the mid-range of objective seriousness. In doing so, he had regard to the following factors: 1. The offending conduct occurred over a period of 2-3 minutes; 2. The fact that it occurred in the context of a drug deal where the respondent had been "ripped off" was a neutral fact that neither aggravated nor mitigated the conduct: ROS [19]; 3. Although the conduct was reactionary it was "far from momentary": ROS [21]; 4. Although a speed of 144 km/h was reached, the speed at the time the vehicle went off the road was in line with the likely speed limit: ROS [26]; 5. The manner of driving was very dangerous: ROS [22]; 6. Whilst the term "weaponised" (adopted by the Crown on sentence) was "somewhat dramatic" his Honour accepted that the respondent's vehicle was being used in an "intimidatory and predatory way with a very clear and very obvious great risk of accident and death and serious injury" (ROS [22]). The factor in this case that heightens the seriousness of the conduct is the element of pursuit by the offender of the Lancer in a manner where he was so close to the Lancer that, whilst not intentional, the ultimate touching of the vehicles was highly likely; 7. The continuation of this conduct after the Lancer crossed the fog line, when heading both north and south, adds to the seriousness of the matter: ROS [26]; 8. The offending occurred on a highway and not a built-up area and the traffic was not heavy: ROS [23] and [26]; 9. There was no evidence of intoxication on the part of the offender (although he stated that he was suffering withdrawal from "ice", at the time of the offence there was no evidence of the consequence of this): ROS [23].
2. In assessing the objective seriousness as being in the mid-range, his Honour also had regard to the decision in Moananu v R [2022] NSWCCA 85 which had only been delivered on 22 April 2022. His Honour noted at ROS [25] that the decision illustrated the great range of factual circumstances in which vehicular manslaughter may occur, including offenders driving whilst grossly intoxicated; driving on the wrong side of the road; driving for a greater period of time and a greater distance than the offender did; driving in busy built-up areas; and driving at much higher speeds.
3. As for the infliction of grievous bodily harm on Ms Fox, his Honour found that offence also to be in the mid-range of objective seriousness for the same reasons but, taking into account the injuries she acquired, that offence was "slightly less serious" than the manslaughter offences.

Victim impact statements

1. His Honour noted the Crown relied upon seven victim impact statements and had regard to them in accordance with s 30E of the Sentencing Act. In that respect, his Honour noted the following at ROS [50]: "… [The victim impact statements] serve to demonstrate just how important each individual person is to their family and loved ones. It is due to the criminal conduct of the respondent that each of these people is deprived of their ongoing clearly close and loving relationships with the deceased, and in the case of Ms Brahm the potential of such a relationship. The harm done by the respondent extends well beyond the immediate deaths and injuries he caused. I have taken those statements into consideration in accordance with section 30E."

Criminal history

1. The respondent has a significant criminal history commencing in 2003, although his offences up to 2008 were mainly for driving offences. He was convicted of assault occasioning actual bodily harm in 2008 and offensive behaviour and resisting police in 2010 and 2011. There were further driving matters in 2013. In 2014, there was possession of a prohibited drug and of a knife, prohibited drug matters and contravention of an apprehended violence order. There were property offences in 2014 and dishonesty offences in 2015. In 2017, he was charged with firearms offences and received suspended sentences of 12 months to date from 8 January 2018. The respondent was called up on some of those matters and received ICOs to commence on 19 February 2019 and expire on 18 February 2020; that is, the respondent was on conditional liberty by way of suspended sentences at the time of the driving offences, and on ICOs at the time of the drug, break and enter, and firearms offences (he was on five ICOs when committing the drug and break and enter offences and four ICOs when committing the firearms offences). He also was dealt with for an offence of driving with an illicit drug present in his blood in March 2019.
2. His Honour noted the following in relation to the respondent's criminal history at [52]: "This record plainly disentitles the offender to any leniency based on his record. Further, that all the offending occurred whilst the offender was on conditional liberty is an aggravating factor that will be taken into account. That said the offender's record up to the age of 34, his age at the time of the manslaughter and grievous bodily harm offences, shows offending of far lesser seriousness than what is now being considered. The offending being sentenced represents a very significant escalation in his criminal lifestyle."

The Form 1 matters

1. The offences contrary to s 52B of the Crimes Act were taken into account on the two manslaughter offences and the grievous bodily harm offence. The sentencing judge noted the seriousness of these offences at [30]: "The conduct of the offender in this regard can only be described as callous, self-interested, and showing no concern or respect whatsoever for the lives and well-being of the three victims. Rather the concern of the offender was to reclaim the $7000."
2. His Honour went on to describe how he took those Form 1 matters into account (also at [30]) in this way: "The sentence for the primary offence in each case will reflect additional weight as to personal deterrence and retribution than may otherwise have been the case, without exceeding the sentence appropriate for the objective gravity of the offence."
3. His Honour had regard to the other Form 1 matters in the same way: see at ROS [37]-[38] and [46].

The subjective case

1. His Honour set out the respondent's subjective case at [53]-[85]. He noted that the respondent pleaded guilty to all charges in the Local Court. This entitled him to a 25% discount pursuant to s 25D of the Sentencing Act. He made findings based on the material tendered on behalf of the respondent noting that it was not challenged by the Crown.
2. The respondent was born in Brisbane and was the second of three children. He has four older half-sisters from his parents' prior relationships. Both of his parents abused alcohol when he was growing up and his father was violent when intoxicated both towards the respondent and the respondent's mother. From the age of seven he frequently moved residence because his parents grew and supplied cannabis which meant that they had to move to escape interpersonal problems associated with that. At a young age, he associated with antisocial peers arising from circumstances where he sought to be out of his home owing to his father's behaviour.
3. The respondent was sexually abused by a school teacher at the age of 13. This included anal penetration causing bleeding and also defecation which was observed by other students which in turn became a point of ridicule and bullying.
4. The respondent struggled at school and left when he was 14 years old. He is functionally illiterate. At 18, he moved to independent accommodation and since then his housing has been unstable and involved periods of homelessness.
5. At 26, he suffered a back injury and has not been in consistent employment since that time. His use of ice began at this time and led to smoking ice on a daily basis. He also used other drugs including heroin and prescription drugs not prescribed for him. His Honour considered the respondent's heavy ice abuse to be a "significant feature" of the respondent's history. The respondent explained that the break and enter offence and stealing and supplying drugs were to fund his substance abuse and pay debts owed to an outlaw motorcycle gang.
6. The respondent is a member of the Bundjalung Nation. His connection to culture was encouraged as a youth, but he has engaged less with it in his adult life due to his substance abuse and criminal activity.
7. He commenced drinking at about 13 years of age but no longer drinks. He started smoking cannabis he stole from his parents when he was 13. This became a daily habit following his sexual abuse. He continued to smoke cannabis daily up to his current incarceration. He has also had a gambling addiction.

Bugmy principles

1. His Honour accepted the history provided by Mr Brabant as to his childhood of social disadvantage and sexual abuse and was satisfied that those circumstances led to his drug abuse. He also accepted evidence of the respondent's poor cognitive ability and literacy. His Honour observed that life did not become unmanageable until he commenced the use of methylamphetamine aged 26. The respondent is ill-equipped to manage his life in a pro social way.
2. His Honour addressed the Bugmy principles at [77]-[79] as follows: "[77] In these circumstances the offender in oral submissions made reference to and relied on the principles of Bugmy (2013) 249 CLR 571 for leniency, a submission which is well founded and I accept and apply. The offender in both oral and written submissions properly called in aid the decision of Millwood v R [2012] NSWCCA 2 and in particular the oft cited passage in the judgment of Justice Simpson at [69]. The effect of that passage is that an offender who has the start in life of the type experienced by this offender does not bear equal moral responsibility with a person who might have experienced what might be termed a 'normal' upbringing. To quote her Honour 'common sense and common humanity dictate that such a person will have fewer emotional resources to guide his (or her) behavioural decisions'. As Simpson JA pointed out this does not mean such a person bears no moral responsibility. The position is as her Honour went on to state that such a background is a relevant consideration for 'affording some (although limited) mitigation'. (emphasis in original) [78] The offender argued that there was a clear causal connection between the offending and this background. I accept that in the terms on which the propositions to that effect are put in Millwood just stated, and which was relied upon by the offender. It may be a distinction without a difference but this I consider to be an approach different to a reliance on the principles of De la Rosa dealing with the appropriate way to deal with mental ill-health when causative to some extent of the offending. [79] The circumstances of the offender's background therefore allow him some leniency and have the effect of lessening his moral culpability. It is important however that the limitation or qualification of Simpson J is borne in mind and the extent of the mitigation to be given effect to will vary with each case, and it is taken into account here in determining the offender's sentence."

Sentencing principles

1. His Honour went on to consider the relevant sentencing principles for manslaughter offences and considered the comparable cases discussed in Moananu v R being Smith v R (2020) 93 MVR 345; [2020] NSWCCA 181, Woodbridge v R (2010) 208 A Crim R 503; [2010] NSWCCA 185, Duncan v R [2012] NSWCCA 78, and Crowley v R [2021] NSWCCA 45 and observed the following at [93]: "I note above I assessed the objective seriousness of the present manslaughter offences as in the mid range and the grievous bodily harm offence in this case as in the low mid range. The driving in the present case represented an abandonment of any care or responsibility for fellow road users. As an example of such irresponsible driving it is not as egregious as the examples just given. Whilst there is excessive speed it is on a highway where the traffic, whilst present, could not be described on the evidence as more than modest. The maximum speed referred to in the facts is 144 km/h, on a highway where the speed limit was not stated in the facts, but I infer was likely to be either 100 km/h or 110 km/h, and at the time the vehicles came into contact causing the driver to lose control of the Lancer the speeds being travelled were approximately between 102 km/h and 112 km/h. The offender remained on the correct side of the road. It was not a built-up area. Adverse to the offender's case is the factor identified at [26] above, the element of the pursuit by the offender of the Lancer and his manner of doing it, and his pressing on with it when the Lancer was moving further to the right, and thus out of room." (Emphasis added.)
2. His Honour noted (at [94]) that in cases such as this, "general deterrence is important" but tempered by the Millwood principles (Millwood v R [2012] NSWCCA 2). He accepted the strong need to denounce the behaviour, make the offender accountable for his actions, protect the community and recognise the harm done to the victims and the community. His Honour went on to note the need to promote rehabilitation and, on that basis, would find special circumstances based on his childhood trauma.
3. His Honour went on to observe (at [96]-[98]) that any hope of rehabilitation would be a lengthy process, that the psychological report does not set out "a bright future" and suggested that the chances of not reoffending and successfully rehabilitating are not good. It was noted that this was by far the worst offending and the fact that his offending was less serious until he reached 34 years of age suggests "some scope for rehabilitating him to lead a pro social life". His Honour found special circumstances on that basis. His Honour then observed this at [99]: "With respect to the other offences, they were also committed whilst the offender was on conditional liberty and that must be taken into account. Relevant to the overall sentencing process is that despite this horrific event having occurred in December 2018 the offender carried on his criminal lifestyle. Whilst I have found that he has expressed some remorse and indeed is remorseful the weight given to that finding is tempered by the fact that it was very slow to be realised."

Totality

1. His Honour dealt with the totality principle at [103]-[110]. He cited R v MAK (2006) 167 A Crim R 159; [2006] NSWCCA 38, Hall v R (2021) 291 A Crim R 18; [2021] NSWCCA 220 at [52], R v Holder (1983) 13 A Crim R 375; [1983] 3 NSWLR 245, Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70 and Cahyadi v R (2007) 168 A Crim R 41; [2007] NSWCCA 1 and set out the principles to be derived from those decisions.
2. His Honour concluded that all four sets of offences were discrete from one another. It was accepted that the driving offences should have a significant degree of concurrence as they arise from the same conduct but the concurrency for all offences should not be total. His Honour concluded that there would be a significant degree of accumulation across the four different categories of offending, but the aggregate sentence should not be one that is "crushing". His Honour also acknowledged that whilst the different categories of offending are in one sense discrete and disconnected, the criminality has the common thread of the lifestyle led by the respondent, arising in the circumstances of his life.
3. In the interests of transparency, his Honour specified a "sub aggregate" indicative sentence of 10 years imprisonment for the driving offences and 2 years imprisonment for the firearms offences. In doing so, his Honour observed at [110]: "This approach may appear cumbersome. When considering the outcome care needs to be applied to ensure it is recognised that the 'notional' aggregate sentence of 10 years has already been arrived applying principles of totality. If an assessment was made without recourse to the 'notional aggregate sentences' process adopted, an assessment which I have undertaken, I come to the same result."
4. His Honour accepted the Crown submission that there needed to be some accumulation of the sentence onto the sentence for the revoked ICOs he was serving from 3 July 2019 (when he went into custody) until 18 February 2020. He indicated that the aggregate sentence of 14 years imprisonment with an aggregate non parole period of 9 years was imposed to commence from 1 November 2019, being three months after he entered custody.

Crown appeal - manifest inadequacy

1. The relevant principles governing Crown appeals are well established.
2. The primary purpose of Crown appeals was described by Barwick CJ in Griffiths v The Queen (1977) 137 CLR 293; [1977] HCA 44 at 310 as being to: "… [E]stablish some matter of principle and to afford an opportunity for the Court of Criminal Appeal to perform its proper function in this respect, namely, to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons."
3. In the exercise of its jurisdiction under s 5D of the Criminal Appeal Act the court retains a residual discretion to decline to interfere with a sentence even though the sentence is erroneously lenient: Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 at [1], [26]; Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 at [24]. It is for the Crown to satisfy the court that the residual discretion to decline to intervene and re-sentence the respondent should not be exercised in this case: CMB v The Attorney-General for New South Wales (2015) 256 CLR 346; [2015] HCA 9 at [33], [54].
4. In Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25, the High Court (Gleeson CJ, Gummow, Hayne and Callinan JJ) described the scope of the inquiry required by this court on a Crown appeal in this way at [25] (footnotes omitted): "As with other discretionary judgments, the inquiry on an appeal against sentence is identified in the well-known passage in the joint reasons of Dixon, Evatt and McTiernan JJ in House v The King, itself an appeal against sentence. Thus is specific error shown? (Has there been some error of principle? Has the sentencer allowed extraneous or irrelevant matters to guide or affect the decision? Have the facts been mistaken? Has the sentencer not taken some material consideration into account?) Or if specific error is not shown, is the result embodied in the order unreasonable or plainly unjust? It is this last kind of error that is usually described, in an offender's appeal, as 'manifest excess', or in a prosecution appeal, as 'manifest inadequacy'."
5. The Crown relies upon the sole ground of appeal that the sentence is manifestly inadequate. In other words, is it "unreasonable or plainly unjust" within the fifth limb of House v The King (1936) 55 CLR 499; [1936] HCA 40. As Gleeson CJ and Hayne J earlier observed in Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6]: "Manifest inadequacy of sentence, like manifest excess, is a conclusion. A sentence is, or is not, unreasonable or plainly unjust; inadequacy or excess is, or is not, plainly apparent. It is a conclusion which does not depend upon attribution of identified specific error in the reasoning of the sentencing judge and which frequently does not admit of amplification except by stating the respect in which the sentence is inadequate or excessive."

Crown submissions

1. The Crown's position was that the aggregate sentence imposed manifestly failed to reflect the totality of the criminality involved in the offending. It was accepted that no patent error could be identified. It was submitted that one explanation for the manifest inadequacy of the aggregate sentence was that the indicative sentences for the driving offences (counts 1 to 4) and the firearms offences (counts 6 and 7) were manifestly inadequate.
2. As for the finding of objective seriousness for the manslaughter offences, it was submitted that they were above mid-range and thus deserving of punishment well above the sentences indicated by the sentencing judge. Reliance was placed on the decisions in Lees v R [2019] NSWCCA 65 and R v Chandler (No. 2) [2017] NSWSC 1758 ("Chandler (No. 2)") as comparable cases of vehicular manslaughter by unlawful and dangerous act where a vehicle was used as a weapon. Contrary to the observation of the sentencing judge, the characterisation of the respondent's car being "weaponised" was apt.
3. Further, the fact that the collision was connected to a drug deal made it objectively worse. The assessment of objective seriousness should not be assessed in isolation; the surrounding circumstances provided context. By way of analogy, it was submitted that in Chandler (No. 2) the fact that the respondent was fleeing from police made that offending worse. The motive does not make the manner of driving more serious, but it feeds into moral culpability. The failure to have regard to this in assessing the objective seriousness was a particular of the error that infected the indicative sentences.
4. It was submitted that the finding of the sentencing judge at [22] was close to a finding that a reasonable person would have appreciated that his driving exposed others to a serious risk of injury; that is, his Honour's finding placed the seriousness of the respondent's behaviour at a higher level of any other comparable cases to which his Honour referred.
5. Reliance was placed on the fact that unlike in the comparable cases, the respondent deliberately moved the car back and forth. Thus, even if his Honour's finding was directed towards a reasonable person in the position of the respondent (who would have appreciated the risk) it was incumbent upon his Honour to assess the respondent's perception of that risk. Similarly, it was submitted, it was incumbent upon the sentencing judge to make a finding as to what motivated the respondent to drive in the manner he had. The sentencing judge did not address the Crown submission that the respondent's motive was to force the car off the road to recoup his money or obtain drugs, which impacted upon the fixing of the indicative sentences.

Respondent's submissions

1. The respondent's primary position was that the court would not be satisfied that the aggregate sentence imposed by Priestley SC DCJ was manifestly inadequate and nor were the assessments of the objective seriousness of the driving offences and firearms too low.
2. It was noted that the basis upon which the respondent was sentenced was manslaughter by "unlawful and dangerous act, in that the respondent engaged in intimidating and predatory driving". It was not incumbent upon the sentencing judge to adopt the Crown's characterisation of the Lancer as "weaponised" and the failure to do so does not diminish the seriousness of the manslaughter offences.
3. Regarding the element of dangerousness, it was submitted that the facts did not address the issue of the respondent's perception of the risk he was creating. Nor was that matter raised before the sentencing judge. Accordingly, it was not incumbent upon the sentencing judge to make a finding about this.
4. It was submitted that the decision in Chandler (No. 2) can be distinguished because in that case the Crown requested the sentencing judge to make a finding as to Mr Chandler's actual realisation of level of risk. It was noted that the agreed facts state that the Lancer came into contact with the Commodore unintentionally and through misjudgment.
5. It was accepted that the applicant was sentenced on the basis that the motive for the driving was to recover drugs or money; his Honour noted the driving was "reactionary" in relation to the drug deal prior to the car pursuit. It was submitted that the sentencing judge's reference to an "abandonment of care or responsibility" (at [93]) does not imply a reference to manslaughter by criminal negligence. It was submitted that general deterrence is achieved through the aggregate sentence imposed.
6. Regarding the s 52AB offences attached by Form 1s to the driving offences, it was submitted that to increase a sentence beyond what the objective seriousness of the principal offence allows would be tantamount to increasing the objective seriousness of the principal offence by reason of the Form 1 offence, which is not permitted: RO v R [2019] NSWCCA 183 at [55] and [57].
7. As for the indicative sentence in relation to Ms Fox's matter, it was submitted that the indicative sentence of 3 years imprisonment is not inconsistent with the 2 years nominated in R v Whyte (2022) 55 NSWLR 252; [2002] NSWCCA 343. It was submitted that Priestley SC DCJ did not find the objective seriousness of the offending to be reduced because of the "lack of seriousness" of Ms Fox's injuries. In fact, he had characterised them as "clearly significant and serious" (ROS [24]) and there is no basis to suggest that his Honour did not consider all other injuries sufficiently. It was further submitted that there was no medical evidence supplementing Ms Fox's victim impact statement.

Consideration

1. As Bell P (as his Honour then was) observed in Byrne v R; Cahill v R (2021) 97 MVR 85; [2021] NSWCCA 185 at [1] (another appeal concerned with vehicular manslaughter; albeit claiming manifest excess): "… A sentence will not be disturbed for the simple reason that members of the Court of Criminal Appeal may have taken a more lenient or harsh view of the matter, were they conducting the sentencing hearing, than the sentencing judge. Something more must be shown that warrants appellate interference with the sentencing judge's discretion, as the famous decision in House v The King (1936) 55 CLR 499; [1936] HCA 40 makes plain."
2. As I observed in Davidson v R (2022) 100 MVR 336; [2022] NSWCCA 153 at [166], it is well open to judges of this court to arrive at different conclusions as to whether a sentence is manifestly excessive or manifestly inadequate. This is because it is an exercise in instinctive synthesis. As Payne JA and Button J (Schmidt J in dissent) observed in Conte v R (2018) 86 MVR 239; [2018] NSWCCA 209 at [9] in the context of considering a ground contending manifest excess: "…[J]ust as sentencing at first instance is ultimately an exercise in instinctive synthesis, so also does the determination by an intermediate appellate court that a sentence previously imposed is manifestly excessive or manifestly inadequate involve a degree of intuition and evaluative judgment that is not readily amenable to logical steps in an irresistible process of reasoning, or determinative lists of countervailing factors."
3. These principles are particularly apt in the present case. This is not a case where any patent error has been identified by the Crown. Nor is the sentence one which is so short that manifest inadequacy is readily gleaned. As counsel for the Crown properly acknowledged at the outset of the hearing of this appeal, she faced a real challenge of persuading the court that a sentence of 14 years imprisonment is "manifestly inadequate" (in the sense of being unreasonable and plainly unjust).
4. The respondent received an aggregate head sentence of 14 years imprisonment. He received a 25% discount for his early pleas of guilty. It is well settled that the discount for a plea of guilty is to be applied to the indicative sentences and not the aggregate sentence: PG v R (2017) 268 A Crim R 61; [2017] NSWCCA 179. Noting the controversy as to whether it is ever appropriate to "gross up" an aggregate head sentence to reflect an undiscounted aggregate head sentence (see Davidson v R at [238]-[245]), the respondent's undiscounted aggregate head sentence would be somewhere in the vicinity of 18 years and 7 months imprisonment. That is not an insignificant starting point, especially when regard is had to the respondent's subjective case, including that he is an Aboriginal man who suffered a childhood of profound deprivation.

Protection of the community

1. I have considered the submission that the aggregate sentence failed to have regard to the protection of the community. It could not be said that his Honour ignored this relevant sentencing purpose. He expressly set out s 3A of the Sentencing Act and noted that one of the purposes of sentencing is to protect the community from an offender. He repeated those principles at ROS [94] and [100]. The Crown accepted that his Honour mentioned this factor as part of his instinctive synthesis but contended that his Honour did not separately engage with that sentencing principle in the circumstances of this offender.
2. The protection of the community was certainly a relevant sentencing factor in this case. As his Honour acknowledged, all offences were committed on some form of conditional liberty. These matters are all relevant to the risk the respondent poses to the community. But it is difficult to conclude that the sentencing judge failed to engage with this issue when he expressly referred to the breaches of conditional liberty, the criminal history and the need to protect the community. Again, this complaint is, in effect, a further complaint as to manifest inadequacy.
3. I am satisfied that there is some force in the Crown submission that his Honour felt constrained in the way he dealt with the Form 1 matters, particularly in relation to the driving offences. The proper approach when sentencing in accordance with s 32 of the Sentencing Act was considered in Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518. Spigelman CJ (with whom Wood CJ at CL, Grove, Sully and James JJ agreed) made the following observations as to the correct procedure at [18]-[19]: "[18] A number of propositions with respect to the process of taking into account matters on a Form 1 are well established and are uncontroversial. First, the entire point of the process is to impose a longer sentence (or to alter the nature of the sentence) than would have been imposed if the primary offence had stood alone. Secondly, it is wrong to suggest that the additional penalty should be small. Sometimes it will be substantial. (See, eg, R v White (1981) 28 SASR 9 at 13; Murrell v The Queen (1985) 4 FCR 168 at 179, per Blackburn J; R v Vougdis (1989) 41 A Crim R 125 at 128-129; R v Morgan (1993) 70 A Crim R 368 at 371-372). [19] These authorities focus on the sentence that is appropriate for the charge on the indictment, with a view to increasing it by reason of the Form 1 offences for which guilt has been admitted. This can be characterised as a 'bottom up' approach."

Conclusion

1. I have arrived at the conclusion that the starting points of 6 years imprisonment for each of the manslaughter offences and 3 years for the inflict grievous bodily harm offence are very lenient but not manifestly inadequate. My only reservation in this regard concerns the s 52AB Form 1 matters. The conduct of the respondent in stopping to retrieve his money but failing to render any assistance is very callous behaviour and it is not readily apparent that sufficient regard was had to them. But even if these indicative sentences were manifestly inadequate, as Bathurst CJ observed in Kerr v R (2016) 78 MVR 191; [2016] NSWCCA 218 at [114], "the fact that the indicative sentences are excessive does not necessarily mean that the aggregate sentence is excessive."
2. Any doubt I have as to whether the indicative sentences for the driving offences were manifestly inadequate dissipates when regard is had to the sub aggregate sentence for the driving offences which was 10 years imprisonment. This can be compared with the aggregate sentence in Moananu v R of 12 years and 6 months imprisonment for three similar charges, but which were assessed as being in the high range of objective seriousness. Mr Moananu was unlicenced but had no significant criminal history (unlike the respondent who was also on conditional liberty) but they both had Bugmy factors, and the respondent also had been threatened in custody. Given all of these objective and subjective factors, the difference between 10 years imprisonment as opposed to 12 years and 6 months is not such as to suggest manifest inadequacy in the present matter.
3. There was no complaint that the indicative sentences for the drug or theft matters were manifestly inadequate. That leaves the question of the indicative sentences for the firearms offences. Although I am satisfied that the indicative sentences for the firearms offences are very lenient, on balance, I am not persuaded that they are manifestly inadequate.
4. The central argument in this appeal was that certain of the indicative sentences were too low. I am not satisfied they were, despite being very lenient. The Crown's alternate position was that if the court was not satisfied that the indicative sentences were manifestly inadequate then error must have crept in some other way, that being the nature of latent error. The difficulty with that submission is that it is difficult to apply when an aggregate sentence is imposed for multiple offences across a broad range of offending, for which a sentence of 14 years imprisonment is imposed following early pleas of guilty and no complaint is made about the application of the totality principle.

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