[2013] NSWCCA 115
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
Bugmy v The Queen (2013) 249 CLR 571
[2013] HCA 37
Byrne v R
Cahill v R (2021) 97 MVR 85
Source
Original judgment source is linked above.
Catchwords
[2013] NSWCCA 115
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
Bugmy v The Queen (2013) 249 CLR 571[2013] HCA 37
Byrne v RCahill v R (2021) 97 MVR 85[2021] NSWCCA 185
Cahyadi v R (2007) 168 A Crim R 41[2007] NSWCCA 1
CMB v The Attorney-General for New South Wales (2015) 256 CLR 346[2015] HCA 9
Conte v R (2018) 86 MVR 239[2018] NSWCCA 209
Crowley v R [2021] NSWCCA 45
Davidson v R (2022) 100 MVR 336[2022] NSWCCA 153
Dinsdale v The Queen (2000) 202 CLR 321[2000] HCA 54
Duncan v R [2012] NSWCCA 78
Green v The QueenQuinn v The Queen (2011) 244 CLR 462[2011] HCA 49
Griffiths v The Queen (1977) 137 CLR 293[1977] HCA 44
Hall v R (2021) 291 A Crim R 18[2021] NSWCCA 220
House v The King (1936) 55 CLR 499[1936] HCA 40
JM v R (2014) 246 A Crim R 528[2014] NSWCCA 297
Kerr v R (2016) 78 MVR 191
[2016] NSWCCA 218
Lees v R [2019] NSWCCA 65
Markarian v The Queen (2005) 228 CLR 357
[2005] HCA 25
Mill v The Queen (1988) 166 CLR 59
[2017] NSWCCA 179
R v Chandler (No. 2) [2017] NSWSC 1758
R v Holder (1983) 13 A Crim R 375
[1983] 3 NSWLR 245
R v Loveridge (2014) 243 A Crim R 31
[2014] NSWCCA 120
R v MacDonald (Court of Criminal Appeal, 12 December 1995, BC9501664)
R v MAK (2006) 167 A Crim R 159
[2006] NSWCCA 38
R v Pullman (1991) 25 NSWLR 89
R v Robert Borkowski (2009) 95 A Crim R 152
[2009] NSWCCA 102
R v Simpson (2001) 53 NSWLR 704
[2001] NSWCCA 534
R v Van Xuan Nguyen [2005] 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
Judgment (28 paragraphs)
[1]
] 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)
[2]
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
[3]
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].
[4]
JUDGMENT
KIRK JA: I agree with the judgment of N Adams J and add the following.
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.
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.
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."
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.
[5]
Agreed Facts
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.
[6]
The driving offences
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.
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.
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.
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.
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.
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.
[7]
The drug offence (count 5)
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.
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.
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.
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.
[8]
The break and enter offence (count 4)
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.
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.
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.
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.
[9]
Firearms offences (counts 6 and 7)
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.
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.
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.
[10]
The Crown case
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.
[11]
Victim impact statements
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.
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.
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".
[12]
The defence case
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.
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].
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."
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.
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.
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".
[13]
The remarks on sentence
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.
[14]
Objective seriousness
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].
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.
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.
[15]
Victim impact statements
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."
[16]
Criminal history
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.
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."
[17]
The Form 1 matters
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."
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."
His Honour had regard to the other Form 1 matters in the same way: see at ROS [37]-[38] and [46].
[18]
The subjective case
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.
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.
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.
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.
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.
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.
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.
[19]
Bugmy principles
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.
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."
[20]
Sentencing principles
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.)
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.
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."
[21]
Totality
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.
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.
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."
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.
[22]
Crown appeal - manifest inadequacy
The relevant principles governing Crown appeals are well established.
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."
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].
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'."
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."
[23]
Crown submissions
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.
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.
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.
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.
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.
[24]
Respondent's submissions
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.
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.
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.
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.
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.
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].
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.
[25]
Consideration
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."
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."
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).
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.
[26]
Protection of the community
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.
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.
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."
[27]
Conclusion
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."
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.
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.
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.
[28]
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Decision last updated: 08 February 2023
N ADAMS J: By notice of appeal filed on 10 June 2022 the Director of Public Prosecutions ("the Crown") appeals pursuant to s 5D of the Criminal Appeal Act 1912 (NSW) against the aggregate sentence imposed on the respondent, James Cook, by Judge Priestley SC on 13 May 2022 in the District Court at Coffs Harbour. The sole ground of appeal is that the aggregate sentence imposed is manifestly inadequate.
His Honour imposed an aggregate sentence pursuant to s 53A(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW) ("the Sentencing Act") of 14 years imprisonment with a non parole period of 9 years imprisonment: R v Cook [2022] NSWDC 157.
Although a sentence of imprisonment of 14 years is a lengthy one, the respondent was being sentenced in relation to four separate episodes of criminality over a six month period, all committed whilst on conditional liberty, to which he pleaded guilty. He was sentenced in relation to seven offences in total, including two charges of manslaughter, and requested that a further six offences be dealt with by way of the "Form 1" procedure, pursuant to s 32 of the Sentencing Act. The seven counts, noting where relevant the associated Form 1 matters, are as follows:
1. Count 1: Manslaughter (of Jared Ward), contrary to s 18(1)(b) of the Crimes Act 1900 (NSW) (maximum penalty 25 years imprisonment). An offence of failing to stop and render assistance contrary to s 52AB(1) of the Crimes Act was taken into account on a Form 1;
2. Count 2: Manslaughter (of Daniel Elliott), contrary to s 18(1)(b) of the Crimes Act. An offence of failing to stop and render assistance contrary to s 52AB(1) of the Crimes Act was taken into account on a Form 1;
3. Count 3: Recklessly cause grievous bodily harm (on Renee Fox), contrary to s 35(2) of the Crimes Act 1900 (NSW) (maximum penalty 10 years imprisonment; standard non parole period ("SNPP") 4 years imprisonment). An offence of failing to stop and render assistance contrary to s 52AB(1) of the Crimes Act was taken into account on a Form 1;
4. Count 4: Aggravated break and enter and commit serious indictable offence, contrary to s 112(2) of the Crimes Act 1900 (NSW) (maximum penalty 20 years imprisonment; SNPP 5 years imprisonment);
5. Count 5: Supply prohibited drug (72.25g of methylamphetamine), contrary to s 25(1) of the Drugs Misuse and Trafficking Act 1985 (NSW) ("DMTA") (maximum penalty 15 years imprisonment). Two further offences of supplying 112g and 9g of methylamphetamine respectively, contrary to s 25(1) of the DMTA were taken into account on a Form 1;
6. Count 6: Possess shortened firearm, contrary to s 62(1)(b) of the Firearms Act 1996 (NSW) (maximum penalty 14 years imprisonment);
7. Count 7: Possess loaded firearm in a public place, contrary to s 93G(1)(a)(i) of the Crimes Act 1900 (NSW) (maximum penalty 10 years imprisonment). An offence of possessing ammunition contrary to s 65(3) of the Firearms Act was taken into account on a Form 1.
These seven offences can be grouped into four categories. Counts 1, 2, and 3 occurred on 9 December 2018 and relate to a car pursuit and accident ("the driving offences").
Count 4 occurred between 13 and 15 June 2019 and relates to a break and enter of a property in which goods to the value of $66,000 were stolen ("the break and enter offence").
Count 5 occurred between 1 March and 3 July 2018 and related to the supply of methamphetamine on 53 separate occasions ("the drug offence").
Counts 6 and 7 occurred on 3 July 2019 when firearms were located on the respondent's property when a search warrant was executed for his arrest for the drug offence ("the firearms offences").
The respondent was on conditional liberty by way of a number of suspended sentences and a bond imposed under s 9 of the Sentencing Act at the time of the manslaughter and reckless grievous bodily harm offences, and on a number of Intensive Corrections Orders ("ICOs") at the time of all of the other offences.
I will consider the respondent's subjective circumstances in some detail below but, in summary, at the time of sentence he was a 37-year-old Aboriginal man with a moderate criminal history that had escalated in seriousness in recent years. It was common ground that he had had a highly dysfunctional childhood such as to attract the principles in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 ("Bugmy").
A truck driver, Mr Bates, observed the Lancer pass him in the right-hand lane and continue to stay in the right-hand lane. He also observed the Commodore tailgating the Lancer. As the Commodore passed Mr Bates, it moved to the left lane, beside the Lancer. The Lancer moved its right-side wheels over the right fog line.
On Mr Bates' account, the respondent (in the Commodore) was tailgating the Lancer and his vehicle was being given "a good few shakes" of the wheel to move it back and forth; meaning that it was deliberately moving away from and then closer to the Lancer. When the Lancer's right-side wheels were over the right fog line, the Commodore began to move into the right-hand lane. At this point, the two vehicles were close to each other. The Lancer then made a U-turn. The Commodore did the same, so the cars were travelling south along the Pacific Highway.
The Lancer was travelling in the right-hand lane. The Commodore continued its pursuit. What happened next is recorded in the remarks on sentence ("ROS") at [10] as follows:
"The offender misjudged how close the Lancer was to the Commodore and the front right panel of the Commodore unintentionally came into contact with the rear left panel of the Lancer. This caused Mr Elliott to lose control of the Lancer and to enter an anticlockwise rotation, so that the Lancer left the roadway on the left-hand side and rolled over. Later calculations of the speed of the Lancer at the point of impact were of between 102 and 112 km/h. The Lancer came to rest having rolled down an embankment on its roof. The roof was crushed in."
Following the crash, the respondent returned to the accident scene. He did not render any assistance to Mr Ward, Mr Elliott or Ms Fox. He did not even call triple-0. Instead, he simply recovered his $7,000 and left the scene. As the respondent left the scene, a passer-by stopped to render assistance which included putting out a small fire. His Honour observed the following at ROS [13]:
"In circumstances where the money was not found at the scene despite the examination being carried out I conclude beyond reasonable doubt that that was because the money was indeed taken by the offender when he returned to the scene. I find the offender returned to the scene to recover the money, not to render assistance."
Mr Elliott and Mr Ward were deceased upon the arrival of paramedics (counts 1 and 2).
The direct cause of death for Mr Elliott was a C4 vertebral fracture which likely led to spinal shock and rapid cardiac arrest. Mr Ward's death was likely instantaneous and caused by multiple injuries to the head, neck, thorax, pelvis, and upper and lower limbs. Ms Fox received medical treatment for compression fractures to three vertebrae, massive subgaleal haematoma, a fractured rib and glass fragments in her finger.
As stated above, in respect of both the manslaughter charges (counts 1 and 2) and the grievous bodily harm offence (count 3), an offence of failing to stop and render assistance contrary to s 52AB(1) of the Crimes Act was taken into account on a Form 1.
Finally, reliance was placed on letters sent to the respondent in gaol from persons associated with one of the deceased as to his conditions of custody. Those two letters were in their original terms:
"James,
you little dirty dog you've put your hand in the wrong cookie jar this time gronk. Start counting your days cause there numberd dog.
Dont think your safe up there in Kempsy
Neck up or smap up dog
yours truely
your Best Night Mare
SHORTY
P.S
I hope all the sheets with blood on them that come over from D pod a from you getting your bread buttered, by the time you leave jail your ass is gonna look like the gran canyon."
And the second letter was in these terms (original all in capital letters):
"To James Cook
Your a fucking dog, she told me all about you. You were the 1 that was meant to die, I4NI, who is gonna look after your kids now your in jail (LOL.). We are gonna make sure your not getting out. Its amazing what a junkie would do for a shot, have fun a trial you fucking dog. Haha."
His Honour found that the drug offence (count 5) was in the low mid-range of offending based on the apparent degree of involvement in the illegal activity borne out by the multitude of supplies over a three month period. This conclusion was reached on the basis that the respondent was a "user dealer" and his role was only marginally above that of a street level dealer given the quantities involved: ROS [35]-[36].
His Honour made a finding that the break and enter offence (count 4) was in the high end of the low range of offending. He had regard to the fact that there were no other people present at the time of the offence, the planning was "far from sophisticated", it was "to some extent" opportunistic, 60 different items were stolen (some of high value), the circumstance of aggravation was being in company which is the least aggravating factor under s 105A and also that the serious indictable offence of larceny carries the minimum penalty of 5 years: ROS [44]-[45].
As for the firearms offences (counts 6 and 7) his Honour noted the Crown submission that possessing these firearms in the context of the respondent's other criminal activity was of "great concern." Although his Honour accepted that it may seem "blindingly obvious" that the firearms were "tools of the offender's criminal trade," the date of the offence specified in the Indictment was 3 July 2019. His Honour then noted this at ROS [48]:
"For that reason I would assess both of these offences as being below the mid range of offending and in the low range. In respect of the home-made firearm I would assess that as more serious (but still below the mid range, so in the high low range) given the efforts to construct such a dangerous item and keeping it loaded. It was also more readily available to the offender given its location."
The respondent has a nine year old son and a five year old daughter from a relationship which ended in about 2019. This relationship was one of violence by both parties. The first child was taken into care by the authorities and an apprehended violence order was applied for against him by his ex-partner. After commission of the driving offences the respondent's relationship ended and his substance abuse escalated.
His Honour noted the respondent's contrition, in particular his concern over the death of his childhood friend Mr Ward.
It was noted that the respondent is housed in the special management area placement ("SMAP"). This is because of threats from the brother of one of the deceased who is also in custody and has links to an outlaw motorcycle gang. His Honour went on to note that custody poses problems for the respondent on a number of bases: it worsens his back pain, he fears for his safety in mainstream custody, and it triggers reminders of unspecified early traumatic experiences in gaol.
Mr Brabant's expert opinion is that the respondent meets the diagnostic criteria for persistent depressive disorder, post-traumatic stress disorder ("PTSD") and severe stimulant disorder. The symptoms of depression emerged when his son was removed from his care in 2014 and worsened in 2019 when his long-term relationship ended. His PTSD symptoms emerge from, inter alia, a background of repeated traumatic events such as family violence, childhood physical and sexual abuse. His Honour noted that the respondent had been provided with mental health care plans in the past but has not persisted with psychological intervention due to his drug abuse.
Mr Brabant assessed the respondent as being a high risk of reoffending. This risk could be reduced if support is given to manage the PTSD and depressive disorders which contribute to his substance abuse. Mr Brabant opined that the respondent's "early life experiences have had a significant and enduring impact on his trajectory through life, affecting his psychological stability and well-being, his cognitions and his behaviour. It would appear that this in turn has influenced his engagement in offending and contributed to his risk".
His Honour noted that prospects of rehabilitation are also considered to be poor but also may improve subject to there being effective intervention.
His Honour accepted that the respondent has expressed remorse but noted that any mitigation must be tempered by his "appalling" conduct immediately following the crash and by his exculpatory statements to police.
His Honour noted the completion of courses in custody and that his conduct in the custodial environment had improved. He referred to the letter from his sister and accepted its contents. He also noted the respondent's mother's short life expectancy but noted that would have "little if any impact on the ultimate sentence". His Honour then considered the threats in custody contained in the letters and the impact of COVID-19.
His Honour concluded his detailed summary of the respondent's subjective case in this way (at [85]):
"The offender receives some leniency due to his background as discussed above. He has also shown some late degree of remorse, and an increasing willingness for intervention. At the same time, it is that same history and his history of offending that results in any assessment of his future prospects as being poor, and his risks of reoffending as being high."
His Honour then set out the indicative sentences for each offence:
Count 1 (manslaughter Daniel Elliot) - 6 years;
Count 2 (manslaughter Jared Ward) - 6 years;
Count 3 (grievous bodily harm Renee Fox) - 3 years (non-parole period 2 years and 3 months);
Count 4 (aggravated break enter and commit serious indictable offence) - 2 years 3 months;
Count 5 (supply methamphetamine) - 2 years 3 months (non-parole period 20 months);
Count 6 (possess shortened firearm without authorisation) - 18 months;
Count 7 (possess loaded metal home-made pistol shaped spring-loaded firearm in public place) - 1 year.
It was submitted that the sentencing judge's reference to "an abandonment of any care or responsibility for fellow road users" at ROS [93] suggested manslaughter by gross criminal negligence, rather than by unlawful and dangerous act.
Nor was the fact that the manslaughter offences were preceded by a purported "drug deal" taken into account by the sentencing judge on the question of general deterrence.
It was also submitted that his Honour should not have restricted the increase in the sentences by reason of the Form 1s in the manner he did. Reliance was placed on the decision in Abbas, Bodiotis, Taleb and Amount v R (2013) 231 A Crim R 413; [2013] NSWCCA 115 at [22]-[24]. It was submitted that although the sentencing judge found the offences increased the need for the sentence to reflect personal deterrence and retribution, the constraint on how the Form 1s were used meant the sentence did not adequately take into account these factors.
As for the grievous bodily harm offence, the indicative sentence of 3 years failed to take into account the factual findings that were made and those that ought to have been made. Although the sentencing judge found the seriousness of the offence had been reduced by the lack of seriousness of injuries suffered by Ms Fox, his Honour had described those injuries as "significant and serious". Further, Ms Fox's victim impact statement supported a finding of serious injuries.
Turning to the firearms offences, their seriousness was assessed as lying in the mid-range. It was submitted that they were deserving of a greater degree of punishment. The sentencing judge found that the drug offence was irrelevant to the objective seriousness of the firearms offences, but it was submitted that limiting the assessment of the objective seriousness of the firearms offences to the date they were found (which was the date on the Indictment) was an erroneous consideration.
As for the drug offence, the respondent was serving five ICOs at the time of those offences and was still serving five ICOs at the time of the break and enter offence. It was submitted that the fact that the offences were committed whilst on conditional liberty establishes the importance of protecting the community from the respondent. It was submitted that although his Honour made comments regarding the need for deterrence as part of the instinctive synthesis process, he did not engage with that sentencing principle in the circumstances of the case.
As for the Bugmy considerations, it was accepted that the respondent's background explains his recourse to violence; driving in what was accepted to be a predatory and intimidatory way with reduced moral culpability because of his reduced ability to control impulse. But that inability to control a violent response to frustration or anger may increase the importance of protecting the community from the respondent.
Finally, there were four findings made by the sentencing judge which, although open to the sentencing judge, were submitted as being ones in relation to which this court would make a different finding in the event of re-sentence. They were:
1. Different findings of objective seriousness regarding the driving offences and firearms offences;
2. That a finding ought be made as to what the respondent perceived of the risk relating to his driving;
3. That a finding ought be made that the respondent's driving was motivated by his desire to obtain $7,000 or the drugs he agreed to purchase; and
4. That a finding of special circumstances should not be found given the finding below as to the respondent's poor prospects of rehabilitation and high risk of re-offending.
It was submitted that the assessment of the objective seriousness of the driving offences as being in the mid-range was an available one. Considering the respondent's subjective case and the 25% discount for the utilitarian value of his guilty pleas, the indicative sentences and notional aggregate sentence were open to his Honour.
With respect to the firearms offences, it was submitted that no evidence was before the sentencing judge as to the purpose of their possession which would show any connection with drug supply: his Honour did not expressly decline to find the drug offence was relevant to the objective seriousness of the firearms offences in any event. It was further submitted that it was for the Crown to show any such link and in the absence of evidence as to when they were obtained or any use to which they were put, no complaint can be made in this court with the sentencing judge's approach. On that basis, it was open to the sentencing judge to assess those offences as being of low objective seriousness. Should this court take a different view, then the failure of the Crown to put such evidence before the sentencing judge is a factor relevant to this court's residual discretion.
It was submitted that the sentencing judge was aware of the relevance of the respondent's criminal history and approached it in the appropriate way. These offences were a very significant escalation. By the time his aggregate non parole period concludes, he will be 44 years old. It was accepted that his Honour made findings as to poor prospects of rehabilitation, but it is difficult to prognosticate when balancing such a long sentence and an individual's prospect of rehabilitation.
Given the references to the purposes of sentence, it was submitted that his Honour had the considerations of community protection and general and specific deterrence firmly in his mind when considering the respondent's sentence. All four types of offences arose out of the respondent's extremely dysfunctional lifestyle at the time of offending.
It was submitted that the Crown's position overstates the objective seriousness of the driving offences. There was nothing in the objective circumstances of the driving offences to indicate that the respondent was trying to have an accident. He had travelled some distance chasing the Lancer. If he had wanted to more aggressively run the driver off the road, he could have done so. Regard must be had to the fact that the collision occurred through unintentional conduct.
Ms Avenell submitted that, even having regard to the principle that an absence of more serious factors does not mitigate the seriousness of an offence, that approach has some utility in this case. The driving did not occur in heavy traffic or in a pedestrian area. There was no evidence of impairment of driving skills through alcohol, drugs or sleep deprivation. The decision in Chandler (No. 2) is different; that offender drove through a residential fence, nor did the respondent intentionally hit another person (as in Lees v R). The context of the preceding drug deal is "neutral".
It was further submitted that any concern about inadequacy or the appearance of inadequacy of the indicative sentences for the manslaughter and grievous bodily harm offences can be answered by the level of sub-aggregate accumulation made.
The assessment of whether the aggregate sentence in this matter is manifestly inadequate in the sense of being unreasonable or plainly unjust is made difficult by the number and variety of offences upon which the respondent was sentenced. This means that the determination of this Crown appeal does not simply concern the application of established principles to a particular type of offending. Rather, it requires 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.
Given the acceptance on behalf of the Crown that no patent error is apparent, the assertion of manifest inadequacy relied on the contention that some of the indicative sentences were manifestly inadequate, which may in turn have led to a manifestly inadequate aggregate sentence. The Crown did not submit that all of the indicative sentences were inadequate: only those for the driving offences and the firearms offences.
Although the Crown's appeal is against the aggregate sentence imposed pursuant to s 53A of the Sentencing Act, it is permissible to have regard to the indicative sentences in order to address a ground asserting either manifest excess or manifest inadequacy of an aggregate sentence: JM v R (2014) 246 A Crim R 528; [2014] NSWCCA 297 at [40] per R A Hulme J (with whom Hoeben CJ at CL and Adamson J agreed).
Turning first to the driving offences, the indicative sentence for the two manslaughter offences was 6 years imprisonment, and the indicative sentence for the grievous bodily harm offence was 3 years imprisonment, after the discount of 25% for the early pleas of guilty was applied.
The arguments in support of the Crown's contention that these indicative sentences were manifestly inadequate included that the objective seriousness was higher than that assessed by the sentencing judge, that the indicative sentences were too low by reference to comparable cases, that his Honour failed to reflect the need to protect the public and that the indicative sentences failed to reflect the Form 1 offences.
The sentencing judge provided detailed reasons for the finding that the objective seriousness of the driving offences was within the mid-range. The accident occurred shortly after 7:00 pm (daylight savings time) and it was still light. There was some traffic, but it was not heavy. Although the respondent was travelling at over 140 km/h when he entered the Pacific Highway, the two vehicles were travelling within the speed limit when the accident occurred and there was no evidence of intoxication. The course of driving was less than three minutes. The agreed facts state that the respondent misjudged how close he was to the Lancer and unintentionally came in to contact with it. The respondent was not to be sentenced on the basis that he was trying to cause an accident; he was to be sentenced on the basis of his dangerous, predatory and intimidatory driving.
There was no ground of appeal contending error in the finding of objective seriousness. That is no doubt because this court has repeatedly stated that the assessment of objective seriousness is a quintessentially discretionary decision for the sentencing judge that will not readily be interfered with by an appellate court: Mulato v R [2006] NSWCCA 282 at [37] (Spigelman CJ) and [46] (Simpson J, as her Honour then was) and the numerous cases which have applied it. Despite this, as will be seen below, some of the complaints directed at the length of the indicative sentences concerned asserted error in the findings regarding objective seriousness.
I have considered the Crown's complaint that the sentencing judge failed to aggravate the objective seriousness of the driving offences on the basis that it was preceded by a purported "drug deal". I see no error in the sentencing judge's approach which is set out at ROS [17]-[19]. The respondent had argued that his conduct was reactionary to being "ripped off" (rather than the planned actions of those who tricked him). The Crown had argued that the driving was more serious because it occurred in the context of unlawful activity, namely the attempt to source illegal drugs. In the face of those arguments his Honour found, on the facts of this case, that it was the actual conduct which determined the objective seriousness; being "ripped off" did not lessen the seriousness and nor was it made more serious because he had engaged in some earlier criminal activity.
His Honour went on to observe that, hypothetically, there may be cases in which the surrounding circumstances could make a difference, such as if the pursuit was with an objective of protecting a person. I accept that may well be so but that was not this case.
Nor am I satisfied that any error is apparent from the sentencing judge's disinclination to find that the respondent used the car as a weapon. That term comes directly from vehicular manslaughter cases in which an offender is sentenced for unlawful and dangerous act rather than gross criminal negligence. In R v Pullman (1991) 25 NSWLR 89 Hunt CJ at CL (with whom Campbell and Newman JJ agreed) observed the following at 97:
"It is only in the extraordinary case, such as occurred in R v Farrar (where the motor vehicle was in effect used as a weapon), that reliance should be placed in motor vehicle cases upon the category of manslaughter based upon an unlawful and dangerous act."
(Emphasis added.)
As I observed in Davidson v R at [192], although a charge of involuntary manslaughter may be based on either gross criminal negligence or an unlawful and dangerous act, it is far more common for such cases to be dealt with on the basis of gross criminal negligence. But the distinction alone should not impact on the appropriate sentence. As Howie J observed in R v Robert Borkowski (2009) 95 A Crim R 152; [2009] NSWCCA 102 ("Borkowski") at [49]:
"… [I]t was made clear in R v Isaacs (1997) 41 NSWLR 374 at 381 that there is no hierarchy of manslaughter verdicts in which, for example, a manslaughter arising from provocation is necessarily more serious and worthy of a heavier sentence than a manslaughter arising from an unlawful and dangerous act. This is notwithstanding that provocation manslaughter involves an intention to kill or inflict grievous bodily harm. It is the particular facts of the killing and not the class of manslaughter that determines the seriousness of the offending: R v Dally [2000] NSWCCA 162; 115 A Crim R 582."
Similar comments were made in R v Loveridge (2014) 243 A Crim R 31; [2014] NSWCCA 120 ("Loveridge") at [226]-[227].
Given these statements of principle I cannot accept the Crown submission that the sentencing judge's description of the respondent's driving as being "an abandonment of any care or responsibility for fellow road users" (at ROS [93]) suggests error. Although it is to be accepted that such language is used in vehicular manslaughter cases based on gross criminal negligence, his Honour clearly stated (at [10]) that it was the intimidatory and predatory driving which constituted the unlawful and dangerous act. In any event, the categorisation should make no difference based on the principle derived from Borkowski and Loveridge.
Only two decisions of this court where a charge of vehicular manslaughter was based on an unlawful and dangerous act (rather than gross criminal negligence) were identified and relied upon by the Crown: Lees v R and Chandler (No. 2). But those cases are not comparable; in both of them it was an agreed fact that the offender had intentionally used the vehicle as a weapon.
In Lees v R, it was noted (at [10]) that the offender killed her partner "by intentionally using the motor vehicle she was driving as a weapon against the deceased to apply force upon him." In Chandler (No. 2), the offender deliberately drove through the front fence of a residential property, colliding with, and killing, an 18-month-old child (two other children suffered minor injuries). This unlawful and dangerous act was described as him using his vehicle as a "battering ram" to enter private property.
In the present case, as the sentencing judge observed at [10] when reciting the agreed facts, the respondent was to be sentenced on the basis that he misjudged how close the other vehicle was to his vehicle and the front panel of his vehicle unintentionally came into contact with the rear left panel of the Lancer. In that context, there was no error in his Honour's decision to decline to make a finding that the respondent used his vehicle as a weapon, especially given that his Honour still found, consistent with the agreed facts, that the driving was intimidatory, predatory and dangerous.
It is to be noted that the only vehicular manslaughter case brought to the attention of the sentencing judge was Moananu v R, which had been delivered four days earlier. Although it was not suggested that case was comparable, the respondent's counsel at the proceedings on sentence drew his Honour's attention to the summary of other vehicular manslaughter cases in that decision, including Spark v R [2012] NSWCCA 140, R v Winter (2012) 225 A Crim R 572; [2012] NSWCCA 218 and Crowley v R. In response, counsel for the Crown submitted that the decision in Spark v R was closest to this case. His Honour cited Moananu v R in his reasons and clearly found the decisions summarised therein of Smith v R, Woodbridge v R, Duncan v R, and Crowley v R to be of the most assistance given his reference to them at [92].
Given that many of the more serious vehicular manslaughter cases considered by this court over the last 20 or so years have already been summarised in Moananu v R and Davidson v R, I do not propose to do so again here. I will, however, address the Crown submission that the present case is similar to the police pursuit cases such as Spark v R.
Spark v R involved a high-speed police pursuit including speeds of around 185 km/h in an 80 km/h zone in wet and hazardous conditions. Police had to terminate the pursuit after 2.2 km, but the offender continued to drive at high speed thereafter including crossing onto the wrong side of the road and driving at a speed of 130 km/h in a 60 km/h zone. He was under the influence of ice and had not slept for more than 40 hours. There was expert evidence that his driving ability would have been greatly compromised. He had never held a driver's licence. I do not accept that to be a comparable case.
I reject the Crown written submission (written by different counsel to who appeared at the hearing but not disavowed) that the findings of the sentencing judge put the respondent's behaviour at a "much higher level" than that of Mr Moananu or any of the offenders in the comparable cases in that decision. At ROS [25] his Honour expressly stated that Moananu v R showed the "great range" of factual circumstances including gross intoxication, driving on the wrong side of the road, driving for a greater period of time, driving for a greater distance, driving in a busy built-up area, and driving at much higher speeds than the present case. His Honour clearly considered the facts in that case and many of the other cases to be more serious.
His Honour referred to the decision in Moananu v R again at ROS [88]. He recounted the circumstances of that case and then at [89] noted that the finding of objective seriousness for the two manslaughter offences in that case fell within the "high end" of the range of objective seriousness. In those circumstances there is no basis to submit that his Honour's findings put the respondent's seriousness at a "much higher level" than in Moananu v R or any of the of the other cases summarised therein.
It could not be said that the sentencing judge was unaware of the relevant principles concerning sentencing for manslaughter. His Honour extracted several passages from the decision of Johnson J in R v Van Xuan Nguyen [2005] NSWSC 600 at ROS [87]. That extract included the oft cited passage of Gleeson CJ (Grove and Ireland JJ agreeing) in R v Blacklidge (Court of Criminal Appeal, 12 December 1995, BC9501665), where his Honour said this at page 4:
"It has long been recognised that the circumstances which may give rise to a conviction for manslaughter are so various, and the range of degrees of culpability is so wide, that it is not possible to point to any established sentencing tariff which can be applied to such cases. Of all crimes, manslaughter throws up the greatest variety of circumstances affecting culpability."
That extract also included the following passage from R v MacDonald (Court of Criminal Appeal, 12 December 1995, BC9501664), where the court (Gleeson CJ, Kirby P and Hunt CJ at CL) said this at page 8:
"Manslaughter involves the felonious taking of human life. This may involve a wide variety of circumstances, calling for a wide variety of penal consequences. Even so, unlawful homicide, whatever form it takes, has always been recognised by the law as a most serious crime. (See R v Hill (1981) 3 A Crim R 397 at 402.) The protection of human life and personal safety is a primary objective of the system of criminal justice. The value which the community places upon human life is reflected in its expectations of that system."
The sentencing judge had regard to comparable cases and noted the features commonly found in the more serious cases, most of which were not present in this case. The fact remains that the present case was an objectively serious case of vehicular manslaughter; it was just not as serious as some of the other cases said to be comparable.
As for the complaint that his Honour failed to assess the respondent's perception of the risk he posed, the difficulty with this submission is that his Honour was never asked to do so. The Crown again relied upon Chandler (No. 2) in support of this argument, but that case is distinguishable. There was evidence that Mr Chandler knew the area well and would have known that there were young children around. In that context, it formed part of the Crown submission that it was a "worst case" for manslaughter as the offender himself (and not just a reasonable person) actually realised that his act of deliberately driving through the fence and into the backyard exposed another person or persons to an appreciable risk of serious injury. Johnson J was ultimately satisfied beyond reasonable doubt that was so and observed the following at [89]:
"It is important to keep in mind the nature of this offence. The Offender is to be sentenced for involuntary manslaughter in the form of manslaughter by unlawful and dangerous act. The Offender's plea of guilty admits that it was his unlawful act that caused death and that it was dangerous in the sense that a reasonable person (in the position of the Offender) would have realised that the act exposed another person to an appreciable risk of serious injury: Wilson v The Queen (1991-1992) 174 CLR 313 at 333; [1992] HCA 31; The Queen v Lavender (2005) 222 CLR 67 at 70 [2], 82 [38]; [2005] HCA 37."
(Emphasis ad ded.)
It was not suggested to Priestley SC DCJ at any time that such a finding be made in this matter. The decision in Chandler (No. 2) was not brought to the sentencing judge's attention. Nor did the Crown rely upon any authority in this court to suggest that it was a requirement for the sentencing judge to make such a finding in order to assess the objective seriousness of a manslaughter by unlawful and dangerous act. In accepting by his plea that his actions were "dangerous", the respondent accepted that a reasonable person in his position would have realised that the act exposed another to a risk of serious injury. It is not an element of manslaughter by an unlawful and dangerous act that the offender himself realised the risk.
Nor do I accept the Crown submission that the reference by the sentencing judge at ROS [22] to the driving posing a "clear and very obvious risk of accident and death and serious injury" to be a finding by his Honour "well in excess of the minimum requirement to make out the element of dangerousness" and thus close to the decision in Chandler (No. 2). As stated above, Chandler (No. 2) is an unusual case in that the Crown specifically put such a submission to the court which had to be established beyond reasonable doubt. That was not this case. Given the other findings made by his Honour, including the finding of mid-range objective seriousness, that the sentencing judge contrasted this case with other comparable cases and the agreed fact that the clipping of the car was unintentional, I do not accept that any finding made by his Honour brought this case close to Chandler (No. 2).
Nor am I satisfied that the indicative sentence for the grievous bodily harm offence was manifestly inadequate. That charge was brought under s 35(2) of the Crimes Act rather than s 52A(4) (which carries a maximum penalty of 11 rather than 10 years) but it is still pertinent to note that the indicative sentence of 3 years imprisonment is well within the range of the guideline judgment in R v Whyte (2022) 55 NSWLR 252; [2002] NSWCCA 343.
His Honour found the objective seriousness of the s 35(2) offence to be in the mid-range but less serious than the manslaughter offences given the injuries suffered by Ms Fox. His Honour described those injuries as "significant and serious". I see no error in that approach.
Turning to the firearms offences, their seriousness was also assessed as being in the mid-range. Although I am not satisfied that there is any error in that finding of objective seriousness, I am satisfied that the indicative sentences were very lenient, particularly when regard is had to the fact that in 2017 the respondent was placed on several suspended sentences for possessing an unauthorised firearm, possessing ammunition without a licence, not keeping his firearm safely and possessing a prohibited weapon without a permit. He breached those suspended sentences, was called up and placed on four ICOs instead which he was still on when he was arrested for possessing the firearms the subject of his current aggregate sentence.
The maximum penalty for possessing a shortened firearm without authorisation is 14 years imprisonment. The indicative sentence for that offence was 18 months including the Form 1 matter. The maximum penalty for possessing a loaded metal home-made .22 calibre pistol is 10 years imprisonment. The indicative sentence for that offence was 12 months imprisonment.
The Crown had no evidence to establish when the firearms located on 3 July 2019 first came into the respondent's possession, but it seems to me that his intention for possessing them was not constrained by any lack of proof as to when he did so. Although I am satisfied that his Honour took an unduly restrictive approach in this regard, the question remains as to whether the indicative sentences are manifestly inadequate.
And at [42]:
"The position, in my opinion, is that, although a court is sentencing for a particular offence, it takes 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. The Court does so by giving greater weight to two elements which are always material in the sentencing process. The first is the need for personal deterrence, which the commission of the other offences will frequently indicate, ought to be given greater weight by reason of the course of conduct in which the accused has engaged. The second is the community's entitlement to extract retribution for serious offences when there are other offences for which no punishment has in fact been imposed. These elements are entitled to greater weight than they may otherwise be given when sentencing for the primary offence. There are matters which limit the extent to which this is so. The express provision in s33(3) referring to the maximum penalty for the primary offence is one. The principle of totality is another."
I have extracted the relevant passages in which his Honour dealt with the Form 1 matters above at [63]-[65]. Although there is no patent error in the way in which his Honour approached the procedure under s 32 of the Sentencing Act, it is not apparent that he increased the sentences on the three driving matters to reflect the s 52AB offences as is permitted. He did not state that he was doing so. To do so is not to increase the objective seriousness of those offences: see RO v R. His Honour was not obliged to increase the indicative sentences to reflect the s 52AB matters; it was a matter for his discretion. But the s 52AB offences were very serious. Despite this, even if I was satisfied that his Honour erred in his approach to the Form 1 procedure, that of itself could not render the indicative sentences manifestly inadequate.
As for the respondent's subjective case, the Crown accepted that the Bugmy principles were engaged in this matter and did not suggest any error in the sentencing judge's approach on this issue. Rather, it was submitted that the respondent's inability to control his violent response to frustration or anger increased the importance of protecting the community from him. That submission was based on the observation of the High Court in Bugmy (at [44]) that it is right to speak of giving "full weight" to an offender's deprived background in every sentencing decision but that it does not have the same (mitigatory) relevance for all the purposes of punishment. Their Honours went on to observe at [44]:
"Giving weight to the conflicting purposes of punishment is what makes the exercise of the discretion so difficult. An offender's childhood exposure to extreme violence and alcohol abuse may explain the offender's recourse to violence when frustrated such that the offender's moral culpability for the inability to control that impulse may be substantially reduced. However, the inability to control the violent response to frustration may increase the importance of protecting the community from the offender."
His Honour afforded "some leniency" (see at [85]) on the basis explained by Simpson J (as her Honour then was) in Millwood v R but there is nothing in his Honour's reasons to suggest that excessive weight was placed on this sentencing principle and, as I have already found, nothing to suggest that his Honour erred in his approach regarding the need to protect the community.
His Honour noted at [85] that any assessment of his future prospects of parole are poor and his risk of reoffending as being high. His Honour went on to observe at [96] that the respondent's age and background mean that any hope of rehabilitation would be a "lengthy process" and that the psychological report does not set out a "bright future", suggesting that the respondent's chances of not reoffending and successfully rehabilitating are not good. A reading of the reasons overall satisfies me that the sentencing judge was aware of the relevance of the respondent's criminal history, the escalation in offending, his poor prospects of rehabilitation and his extremely dysfunctional lifestyle. It was for that reason that he found special circumstances.
The respondent's childhood was profoundly deprived: he was raised by parents who were involved in criminal activity and abused alcohol. He was the victim of physical violence from his father and sexual assault from a teacher. As a result of his dysfunctional childhood, he is functionally illiterate. The extract from his sister's letter to the court at [50] above confirms some of what the respondent told Mr Brabant. The combination of the factors which contributed to his dysfunctional childhood are such that they clearly establish that his childhood deprivation was profound.
Another relevant factor ameliorating the sentence is the fact that the applicant's time in custody is more onerous due to the threats he has received and the fact that he is in SMAP. I have extracted the letters establishing that factor above.
It is significant that the Crown makes no complaint as to the application of the totality principle in this matter. His Honour assessed a notional aggregate sentence for the manslaughter and reckless grievous bodily harm offences of 10 years imprisonment, a notional aggregate sentence for the firearms offences of 2 years imprisonment and then added the indicative sentences for the drug and theft offences of 2 years and 3 months imprisonment each and arrived at the aggregate sentence of 14 years imprisonment.
His Honour recognised the need for significant partial accumulation between the driving offences and considered the application of the totality principle in some detail at [103]-[110]. In doing so, he referred to the decision in R v MAK at ROS [103]. As the court (Spigelman CJ, Whealy and Howie JJ) observed at [15]-[18] of that decision, when sentencing for multiple offences there is a need to maintain an appropriate relationship between the totality of the criminality and the totality of the sentences for two reasons. First, because the severity of a sentence is not simply the product of a linear relationship; it may increase at a greater rate than an increase in the length of a sentence; and secondly, because an extremely long total sentence may be "crushing". On the other hand, a sentencing court must still be cautious not to offer "some kind of a discount for multiple offending" and take care not to give the impression that no, or little, penalty is imposed for the additional offences. His Honour clearly had regard to the need to balance these competing principles.
Although no ground of appeal asserted error in the finding of special circumstances, it was contended that if error was established then this court would not make such a finding on re-sentence. It is to be accepted that when considering whether to find special circumstances the sentencing court needs to ensure that the non parole period reflects, inter alia, the objective gravity of the offence and the need for general deterrence: R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534. As his Honour observed at ROS [111], the finding of special circumstances had the effect of reducing what would have been the aggregate non parole period (had the statutory ratio been applied) from 10 years and 6 months to 9 years imprisonment. Although that had the effect of reducing the aggregate non parole period below 10 years rendering it very lenient, it was well within the sentencing judge's discretion to find that the respondent required an additional period of supervision on parole. In that regard, it is noted that the aggregate sentence was imposed to commence on a date three months after the respondent entered custody such that his effective non parole period was 9 years and 3 months.
This is one of those appeals where a very lenient sentence was imposed following a complex and difficult sentencing exercise. It would have been well open to the sentencing judge to impose a higher sentence but that is not the relevant test. Having considered the matter closely, I am not satisfied that the aggregate sentence imposed is unreasonable or plainly unjust and I would not uphold the ground of manifest inadequacy.
I would propose the following order:
1. Appeal is dismissed.