However, as his Honour stated in R v Howland [1999] NSWCCA 10, the list is not exhaustive, but reflects the most commonly occurring aggravating factors in the commission of this offence.
13 Chief Justice continued in Jurisic at 231:
"Paragraph (i) and par (ii) [of the factors listed above] focus on the occurrence, whereas pars (iii)-(ix) refer to the conduct of the offender. The presence of these latter factors may indicate that the offender has abandoned responsibility for his or her own conduct. When the presence of such a factor can be so described, then it can be said to be present to a material degree for purposes of determining an appropriate sentence.
In my opinion this Court should promulgate the following guidelines:
1. A non-custodial sentence for an offence against s 52A should be exceptional and almost invariably confined to cases involving a momentary inattention or mis-judgment.
2. With a plea of guilty, wherever there is present to a material degree any aggravating factor involving the conduct of the offender, a custodial sentence (minimum plus additional or fixed term) of less than three years (in the case of dangerous driving causing death) and less than two years (in the case of dangerous driving causing grievous bodily harm) should be exceptional.
I realise that the formulation I propose - does the relevant aggravating factor manifest, in the circumstances of the case, that the offender has abandoned responsibility for his or her own conduct - introduces an element of judgment on which reasonable minds may differ. Nevertheless the formulation of the issue in such a way will serve the objective of consistency of sentencing with respect to conduct that the community has indicated plainly that it wishes to deter and condemn.
The period of three or two years, once the threshold of abandoning responsibility has been reached, is a starting point. The presence of additional aggravating factors, or their increased intensity, will determine the actual sentence. This is also the approach in the English guideline judgment on rape: R v Billam [1986] 1 WLR 349; [1986] 1 All ER 985."
14 The Chief Justice also referred with approval to R v Musumeci (unreported, New South Wales Court of Criminal Appeal, 30 October 1997) where Hunt CJ at CL observed that the legislature had always put a premium on human life and that the "courts must tread warily in showing leniency for good character in … cases [under s 52A]" (my emphasis). Hunt CJ at CL also stressed the importance of public deterrence in the case of the offence of driving in a manner dangerous and the need for there to be proportionality between the objective seriousness of the offence and the sentence imposed, notwithstanding that the court was dealing with a young offender of good character.
15 In his remarks on sentence in this case, the trial judge referred to Jurisic. He recognised that the case before him involved two far more serious crimes than was the case there, and that there was no plea of guilty here as was the case there. He noted, however, that the principles stated in Jurisic did not displace the discretionary exercise which a sentencing judge was required to undertake when imposing sentence on a particular offender. He considered that the matters personal to the respondent "were substantial" and that the respondent was entitled to have them taken into consideration on sentence. His Honour also considered that the two charges were closely linked and were part of the one course of conduct. His Honour, correctly, did not treat the circumstances in which the respondent's family found itself as amounting to 'special circumstances'.
16 The sentences imposed by his Honour here were not substantially greater than that considered as the starting point by the Chief Justice in Jurisic. In that case there was a plea of guilty, as well as conduct of the type the Chief Justice had identified as indicating an abandonment of responsibility. It is thus necessary to return to the matters upon which the Crown relied to demonstrate the manifest inadequacy of the sentence imposed. As I have already mentioned, those matters were drawn from Jurisic. The Crown submitted that this case involved circumstances and conduct far more serious than that considered by the Court in Jurisic, so that, using that case as a benchmark, it was obvious that the sentence was manifestly inadequate. Here, there were two fatalities, not one as in Jurisic; there was no plea of guilty as there was in that case; and there were two aggravating features of the type identified in Jurisic (only one - speed - being present in Jurisic), namely speed and failure to obey a warning signal, such that this case should also be treated as involving an abandonment of responsibility. I would add that in any event, as the trial judge accepted, the verdicts of manslaughter of themselves imported a finding of abandonment of responsibility. The Crown relied on two additional matters. The first was the fact that manslaughter carries a far heavier maximum penalty than does an offence under s 52A and that should be reflected in the penalty imposed. The sentences here did not reflect the seriousness of the offences of which the respondent was found guilty. The second was that his Honour placed undue weight upon the respondent's good character, contrary to the principles stated in Musumeci and Juirisic.
17 There can be no doubt that this case involved a level of seriousness, including the nature of the offences involved, greater than was the case in Jurisic. That is a significant matter in determining the sentence which should have been imposed, but does not necessarily compel the conclusion that the sentence imposed was manifestly inadequate so as to either permit or require this Court to intervene.
18 It is necessary at this point to return to the two central attacks made by the Crown on the sentence. First, and this was the case it had advanced at trial, the Crown submitted that this was a case of deliberate acceleration. Senior counsel for the Crown submitted that this conclusion followed from the evidence that when the respondent commenced going down the hill, the truck accelerated quickly, and that the truck had gone out of control, reaching speeds estimated variously as 120 kilometres per hour and (I would interpolate an improbable) 250 kilometres per hour.
19 In my opinion, the evidence does not establish that this was a case of deliberate acceleration. The only evidence of acceleration was that to which I have referred - of acceleration once the respondent commenced his downward travel. The acceleration could have been explained on a number of bases and it would have required something more, by way of evidence, including circumstantial evidence, for his Honour to have been able to make a finding of fact to sentence on that basis. It is apparent that the basis upon which his Honour sentenced the respondent was that there had been a criminally negligent act at some point, probably at the commencement of the downgrade, involving an "initial abandonment of responsibility". In my opinion, on the evidence, this was the only basis upon which his Honour could have sentenced the respondent. A case of deliberate acceleration is also inconsistent with the immediately subsequent actions of the respondent in trying to bring the vehicle under control.
20 The Crown further submitted that his Honour was led into error by giving too much weight to character which led him to impose a sentence which was manifestly inadequate. Although in Musumeci and Jurisic the court cautioned that the court had to "tread warily in showing leniency for good character" in offences involving circumstances such as here, character is not irrelevant to the sentencing judge's task. The subjective circumstances of the respondent are not in dispute. He has been a hard working family man and a productive member of the community. Although his Honour considered that these matters were "substantial" I do not consider that he placed any undue weight on them. He stated that they were matters which the respondent was "entitled to have taken into consideration". His approach in that regard was correct. The sentences imposed do not reflect that his Honour gave undue weight to character. Rather, they reflect the basis upon which his Honour sentenced the respondent, namely by having regard to the degree of criminality involved, which he identified as involving "an initial abandonment of responsibility" (emphasis added). His Honour also took into account (finding that it had been proved beyond a reasonable doubt) that the respondent was travelling well beyond the speed limit when the truck reached the flat area of the roadway but noted that the aggravating circumstances which were frequently present in a case of this kind, were absent. His Honour then had regard to the matters personal to the respondent. There is nothing in the manner in which his Honour has expressed his reasons, or in his description of the relevant personal matters as "substantial" which indicates that his Honour gave inappropriate weight to character.
21 The question remains however, regardless of whether any specific error can be identified, whether the sentence is manifestly inadequate, given the objective seriousness of the offence and the principles referred to in Musumeci and Jurisic (dealing as they do with the lesser offence of driving in a manner dangerous). In determining that question on appeal, the Court is required to have regard to the principle of double jeopardy. That principle requires the Court on a Crown appeal to impose "the least sentence that could properly have been imposed upon the respondent at first instance": R v Rose (unreported, New South Wales Court of Criminal Appeal, 23 May 1996) at 3; Jurisic at 232; R v Howland at 7.
22 In my opinion, the sentences imposed by the trial judge were not manifestly inadequate, although I consider them to be at the very bottom of the range. However if, contrary to my view, the sentences did fall outside an appropriate discretionary range, I am of the opinion that when the principle of double jeopardy is applied, this Court should not interfere.
23 I would therefore dismiss the appeal.
24 WOOD CJ at CL: I have had the advantage of reading in draft the reasons for judgment of Justice Beazley. I agree with her reasons and the orders she proposes.
25 O'KEEFE J: I agree that the appeal should be dismissed for the reasons set out in the judgment of Beazley JA.
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