R v Edwards

District Court of NSW|2023-11-21|Before: O'Brien AM

Introduction

This is a tragic and impossibly sad case. On 6 September 2022 five innocent young people, Antonio Desisto aged 16, Tyrese Bechard aged 15, Gabriella McLennan aged 15, Summer Williams aged 14 and Lily Van De Putte aged 14, were passengers in a motor vehicle driven by the offender when it was involved in a high-speed collision at Buxton. As a result of injuries they sustained all these young people died at the scene. Their deaths were completely avoidable and the responsibility for them lies squarely at the feet of the offender. The loss of these five young people who had their whole lives ahead of them has caused indescribable grief to their families, all who knew and loved them, and the community more broadly. The sudden and unexpected loss of a child is a completely devastating experience from which parents and family members never fully recover. During the sentence proceedings on 21 November 2023, I received victim impact statements from many of those closest to the victims, and I will comment further on them later. Suffice to say at the outset that the loss of these five young people diminishes us all. On behalf of the court and personally, I extend my deepest sympathy to all those who mourn them.
The offender Tyrell Edwards was born in December 2003 and is now aged 20 years. He has pleaded guilty and is to be sentenced for five counts of aggravated dangerous driving causing death. The circumstance of aggravation relied upon by the Crown and acknowledged by the offender is that he was driving his motor vehicle at a speed which exceeded the speed limit by more than 45 kph. At the time of the offending he was aged 18 years.

Agreed facts

A statement of agreed facts was provided to the court, and it is upon the basis of that document that the offender will be sentenced. I do not propose to repeat its contents in full but rather to summarise it.
At the time of the offence on 6 September 2022 the offender was the holder of a New South Wales Provisional P2 driver licence. The speed limit applicable to a driver who holds such a licence is 100 km/h. The holder of a P2 licence must not drive a vehicle unless the driver and his passengers occupy a seating position fitted with a suitable seatbelt and those seat belts are properly fastened and adjusted.
On 6 September 2022 the offender was driving a 2004 Nissan Navara utility registered to his mother. The utility was a five-seater four-wheel-drive with a hardbody tray. At 5:50 PM he picked up Antonio Desisto and Tyrese Bechard near the BP service station at Bargo. Over the next hour and 43 minutes the offender drove through the Wollondilly area frequently exceeding the speed limit. Between 6:42 PM and approximately 7:07 PM this included him travelling at speeds of up to 147 km/h on the Old Hume Highway at Yerrinbool.
At 6:46 PM the offender held his mobile phone in his left hand and filmed himself moving the steering wheel from left to right with his right hand, causing the car to swerve back and forth across the road while travelling approximately 90 km/h in a 100 km/h speed zone. Either Tyrese Bechard or Antonio Desisto yelled "fuck" and "we're going to spin out cuz".
At about 6:56 PM Tyrese sent a Snapchat video to Summer Williams telling her that they were on their way to pick her up in the offender's vehicle. During the video the vehicle was stopped on the side of the road. The offender was in the driver's seat and said "We are going 160 the whole way. The whole way. 160". Both Tyrese and Antonio said "let's go, let's go, let's go".
At 7:17 PM the offender pulled into the driveway of Gabriella McClellan's house in Tahmoor. She and Lily Van De Putte got into the car. The offender then drove north towards Remembrance Drive, Tahmoor. GPS data from his phone showed the offender reached a speed of up to 126 km/h in an 80 km area at 7:21 PM.
At 7:23 PM the offender picked up Summer Williams near her home in Tahmoor. At this point all five victims were in the vehicle. Antonio was sitting in the front passenger seat. Tyrese, Gabriella, Lily and Summer were in the back seat of the vehicle, which had seat belts for only three of the four passengers. The offender then drove from Tahmoor to Bargo. At about 7:30 PM he stopped at Bargo Petroleum and put diesel in his vehicle.
At 7:46 PM the offender drove west along Bargo River Road at a speed of approximately 90 km/h in a 60 km/h zone. A short time later he turned onto East Parade, Buxton. At 7:48 PM Summer sent a Snapchat video to a friend. In it she was laughing and wearing a seatbelt. East Parade runs generally north-south with a single lane in each direction. On the section of East Parade where the collision occurred there are no line markings separating opposing lanes of traffic. There is dense bushland with shrubs and mature trees on one side of the road, and a number of large trees on the nature strip between the road and residential fencing on the other side. The speed limit is 60 km/h between Railway Parade and Peak Road. The speed limit increases to 80 km/h between Peak Road and Bargo River Road.
As the offender drove south along East Parade he approached and drove closely behind the rear of another vehicle for approximately 1.3 km. The driver of this vehicle was travelling at the speed limit of 80 km/h. Near Hassell Road the offender overtook this vehicle by driving onto the wrong side of the road. Once he pulled in front of the vehicle, he flashed his hazard lights and accelerated away. Just after Hassell Road, the speed limit drops to 60 km/h. Near Railway Parade the offender performed a U-turn and drove back north along East Parade.
At approximately 7:53 PM the offender drove past 143 East Parade. This location is approximately 560 metres from the collision site. At the time the offenders vehicle was travelling at a speed of not less than 97 km/h in a 60 km/h zone. In the vicinity of 123 East Parade, about 55 metres from the collision site, the offender was travelling at approximately 117.9 km/h when he lost control of the vehicle. The vehicle commenced a clockwise rotation of approximately 26.5 degrees over a distance of approximately 53 metres, crossing into the southbound lane before heavily impacting with a large tree outside 117 East Parade. The collision with the tree caused a rapid anti-clockwise rotation resulting in the off side of the vehicle impacting a second tree nearby.
Following the second impact, the rear cabin was torn open and the rear seat ejected from the vehicle. Tyrese, Gabriella, Summer and Lily were ejected from the rear of the vehicle and located a short distance away from the wreckage. Antonio was trapped wearing his seatbelt in the front passenger seat. The Nissan Navara sustained substantial damage as a result of the collision. It was positioned on its offside with the off side cabin area in contact with a large tree. The rear of the vehicle was torn from the cabin area and was partially wrapped around the tree with the chassis visible. The rear hard body tray was located on the driveway of 117 East Parade. The rear axle of the vehicle with one wheel still attached was located in the front yard of those premises. The Agreed Facts contain a series of photographs depicting the area of the collision and the condition of the vehicle following it.
Nearby residents heard the vehicle speeding down the road and reported the sound of a "massive explosion". Emergency services were called. Witnesses heard the offender calling out for help from inside the vehicle. He was heard saying "Get me out of here, I can't stay in here". Witnesses tried to comfort the offender and told him emergency services were on the way. The offender pushed the windscreen out with his hands and climbed from the vehicle. As he walked away from the vehicle he said "I'm gonna go to jail, I can't go to jail, I don't want to go to jail". He was asked what happened and replied "I don't know, I think I fell asleep. I don't know if I fell asleep or if it was a kangaroo that ran out in front of me".
When emergency services arrived Tyrese Bechard, Antonio Desisto, Gabriella McLennan, Lily Van De Putte and Summer Williams were declared deceased. The offender was conveyed to Liverpool Hospital for observation after complaining of head and back pain. He was later discharged without any major issues. A blood sample was taken from him at Liverpool Hospital. It returned a negative result for both alcohol and illicit drugs.
At about 1:50 PM on 7 September 2022 the offender was arrested and conveyed to Narellan Police Station where he was interviewed in the presence of his mother and solicitor. In his interview with police he stated that:

He was the driver of the vehicle involved in the collision.
The only thing he remembered was "just losing control and ended up in a tree".
The steering wheel started shaking and then started going "left to right" and when he tried to straighten it, it got worse.
He tried to straighten the car by holding the steering wheel with both hands but the car just continued to go "left and right" and then he blacked out.
He cannot remember what speed he was going just prior to the car starting to shake.
He thinks the speed on East Parade is 80 km/h and then drops to 60 km/h. He was not sure what the speed limit was where the collision occurred.
He tried to brake when the car started to shake but it started sliding instead of stopping.
Antonio, Tyrese and his girlfriend Gabby were in the car. Antonio was in the front seat. Tyrese was sitting in the centre passenger seat in the back. He was not sure who else was in the car.
He picked up Antonio and Tyrese at about 5 PM "in front of the servo". Tyrese wanted to pick up his girlfriend and her friend. Then they started driving around.
He did not know there was another person in his car. He thought he only picked up two girls.
After he left Gabby's house he drove to Buxton and went to an "open field or something" and after that he was going to drop them home.
He had no idea how another girl came to be in his car.
The only stop between Gabby's house and the accident was at a field and no one got out of the car.
He had experienced similar shaking before on the way to work a few weeks prior.
He travelled on East Parade in Buxton once every second or third weekend.
Sometimes when he was driving on the highway the vehicle would randomly pick up speed and then drop speed but he did not book it into the mechanic.
The vehicle had a major oil leak and needed the head gasket replaced.
He was not sure what speed he was doing prior to the accident but it was probably the speed limit.

The offender's vehicle was forensically examined by police who found there were no mechanical defects or faults on the vehicle that may have contributed to the collision. Two mechanics who carried out work on the vehicle prior to the collision confirmed there were no mechanical faults at the time of their inspection.

General principles, the guideline judgment, objective seriousness and moral culpability

Most adults in our community drive motor vehicles and their use carries great responsibility. When that responsibility is not exercised, and terrible consequences result, the law requires the imposition of meaningful punishments. This includes lengthy periods of imprisonment, both as a way of denouncing the aberrant conduct, and of deterring other persons who may be tempted to drive dangerously and in doing so, behave in an unacceptable, irresponsible and anti-social manner.
The need for general deterrence and denunciation in cases such as this are so important that they will generally significantly outweigh the subjective case of an offender including his or her youth, remorse and rehabilitation.
In Byrne v R; Cahill v R [2021] NSWCCA 185, Bell P (as the Chief Justice then was) observed at [2] - [5]; "2. In BP v R (2010) 201 A Crim R 379; [2010] NSWCCA 159 at [102], Johnson J said: '"The need for the law to avoid an abstract or automatic response to the youth and immaturity of an offender is illustrated by sentencing cases in Victoria and New South Wales for the offence of dangerous driving causing death. The laws of these States permit persons aged 17 years to obtain a driver's licence with the attendant obligations and responsibilities attaching to that privilege. The youth, immaturity and inexperience of an offender who kills or seriously injures persons whilst driving dangerously play a limited and subordinate role on sentence: Director of Public Prosecutions v Neethling [2009] VSCA 116; (2009) 22 VR 466 at 474-475 [40]- [44], 477 [53]-[55]; SBF v R [2009] NSWCCA 231 at [141]- [160]; TG v R [2010] NSWCCA 28 at [33]."' 3. In the present case, both drivers were on provisional licences, as Rothman J has pointed out. That matter, to my mind, only exacerbated the culpability of the offending and made deterrence a particularly important consideration in the sentencing exercise. No doubt this factor influenced the sentencing judge in his conscientious and detailed consideration of the matter. 4. Cases of this kind are a tragedy, pre-eminently for the family of the wholly innocent deceased whose lives have been irretrievably affected by the reckless and irresponsible conduct of the offenders. But they are also a tragedy for the offenders themselves and their families whose lives will also be irretrievably affected. The tragedy could easily have been multiplied given the location of the "race", the speed at which both vehicles travelled and the number of passengers in each vehicle. It is fortunate that further tragedy did not eventuate. 5. The message must be sent in unequivocal terms that motor vehicles are not playthings or dodgem cars to be raced by young people for fun or thrills and with impunity. They are to be used responsibly and strictly in accordance with the rules of the road. These rules exist not only for the safety of the drivers and passengers themselves, but for pedestrians and other road users. The holding of a driver's licence conferring the right to drive a motor vehicle is a privilege which carries heavy responsibilities. Those responsibilities were flagrantly cast aside in the current case and the sentences imposed, though heavy, were appropriate in the circumstances and certainly not manifestly excessive."
I acknowledge these observations were made in the context of an appeal from a sentence imposed in a manslaughter case. That case arose from a motor vehicle collision following a street race. While the offender was not street racing, he was driving at a grossly excessive speed and the comments of the Chief Justice (as he now is) have resonance and authoritative significance in this case. I do not understand what the Chief Justice said to mean the offenders youth and immaturity are irrelevant to this sentencing task. Indeed, I must have regard to the fact the law recognises that emotional maturity and impulse control develop progressively during adolescence and early adulthood: Singh v R [2020] NSWCCA 353 at [55]. However these features are, given the nature of the offending, and the importance of general deterrence, matters to be given considerably less weight than might otherwise be the case.
In sentencing the offender I will have regard to the 2002 guideline judgment of the Court of Criminal Appeal in R v Whyte (2002) 55 NSWLR 252. In that case, the court identified what it described as a typical case involving an offence of dangerous driving occasioning death or grievous bodily harm contrary to sections 52A(1) and (3) of the Crimes Act 1900, along with frequently recurring aggravating factors and a general range of sentencing for such offences. Before setting out the guideline, I should make some observations concerning its general application. In considering it, I bear in mind that it is neither a starting point nor prescriptive. There may be matters of aggravation not specifically referred to in the guideline, and in that event, it is appropriate for such matters be taken into account. The guideline judgment is not to be regarded as some type of judicial straitjacket. It is a guideline not a tramline and is not to be used to impermissibly limit the broad sentencing discretion of the court. The factors identified in Whyte as both frequently occurring and aggravating are not exhaustive. Each case will depend upon its own facts and individual justice requires that the penalty imposed reflects both the objective seriousness of the offending, the subjective circumstances of the offender and the need to recognise the purposes of sentencing contained in section 3A of the Crimes (Sentencing Procedure) Act 1999.
In Stanyard v R [2013] NSWCCA 134 at [40] Fullerton J with whom Bathurst CJ and Campbell J agreed, put it this way: "Guideline judgments are not absolute directions for sentencing judges and not to be applied as if they operate as a minimum sentencing or standard sentencing regime. In accordance with the procedure provided for in section 37A of the Crimes (Sentencing Procedure) Act 1999, guideline judgements are attempts to achieve consistency in sentence with the ultimate goal of achieving equality and justice and to provide an opportunity for this Court to analyse sentencing principles for those offences where some unevenness or uncertainty of sentencing practice has emerged. Whilst guideline judgements are to be regarded as persuasive, they are not prescriptive (see R v Read [2010] NSWCCA 78 at [49])."
Critically, I bear in mind that the guideline judgment deals with cases of dangerous driving causing death "simpliciter". Here, I am dealing with five examples of the aggravated version of that offence, the increased seriousness of it being recognised by the higher maximum penalty of imprisonment prescribed by the Parliament. Despite this obvious distinction and limitation, a consideration of the guideline judgment provides considerable assistance in this sentencing exercise.
The guideline judgment provides that a frequently recurring case of an offence under s 52A has the following characteristics: i. Young offender. ii. Of good character with no or limited prior convictions. iii. Death or permanent injury to a single person. iv. The victim is a stranger. v. No or limited injury to the driver or the driver's intimates. vi. Genuine remorse. vii. Plea of guilty of limited utilitarian value.
Of these characteristics of a "typical case", I note the offender was aged 18 at the time of the crash; he had no prior criminal history; multiple deaths rather than a single death were occasioned; all of the victims save for Summer and Gabriella were known to the offender; the offender suffered no physical injury, he has expressed genuine remorse, and has entered pleas of guilty at an early point in the proceedings. The presence or absence of these characteristics necessarily impacts the final disposition of a case such as this, and assists in determining the application of the guideline judgment itself. In respect of the pleas of guilty, I note in Whyte a 10% discount was allowed to reflect the utilitarian value of the plea, whereas as earlier noted, the offender is entitled to a 25% discount.
The guideline judgment then identified a series of aggravating factors for offences under s. 52A as follows: i. Extent and nature of the injuries inflicted. ii. Number of people put at risk. iii. Degree of speed. iv. Degree of intoxication or of substance abuse. v. Erratic or aggressive driving. vi. Competitive driving or showing off. vii. Length of the journey during which others were exposed to risk. viii. Ignoring of warnings. ix. Escaping police pursuit. x. Degree of sleep deprivation. xi. Failing to stop.
Having identified a typical case and these aggravating factors, and noting the need for the imposition of a custodial sentence other than in cases of momentary inattention or misjudgement (of which this case is obviously not an example), the court promulgated a guideline as to the length of such sentences, which relevantly is in the following terms: "For offences against s 52A(1) and (3) for the typical case where the offender's moral culpability is high, a full-time custodial head sentence of less than three years (in the case of death)………….. would not generally be appropriate."
When one allows for the 10% discount for the utilitarian value of the plea of guilty in Whyte, this means the starting point for the head sentence in a non-aggravated version of dangerous driving causing death, prior to any discount to reflect the utilitarian value of the plea, is a term of 3 years and 4 months imprisonment.
It is to be borne in mind that this sentencing guideline is to be seen as the lower limit for a "typical case" of this type. The guideline does not provide an upper limit for sentencing in these cases, but rather a lower limit below which a sentence would not generally be appropriate: R v Greaves [2014] NSWCCA 194 at [45].
Of the aggravating factors identified in the guideline judgment, I note that the extent and nature of the injuries inflicted was extreme. That is, five innocent young members of the community died. The number of people put at risk was high. Not only were the victims exposed to an extended period of risk, but all other persons using the roads upon which the offender drove at high speed over an extended period were also exposed to risk. The degree of speed significantly exceeded the applicable speed limit. Put simply, the speed of the offender's vehicle in the period immediately before the collision was approaching twice the legal speed limit and was well in excess of the speed required to establish the aggravated offence. His driving was both erratic and aggressive and characterised at least in part by him showing off to the victims. The length of the journey he undertook on the evening was not insignificant. This was not a case of an isolated and short-lived period of poor driving but rather an extended, sustained and deliberate one. Further, at least one of the passengers in the back seat of the offender's vehicle was not wearing a seatbelt, where all drivers are required to ensure that their passengers do so, in circumstances where knowledge of the safety risk in not doing so must be assumed in all drivers. His conduct overall demonstrates on any view a serious disregard for public safety. That having been noted, it is not to be regarded as a statutory aggravating factor within the meaning of s 21A(2)(i) of the Crimes (Sentencing Procedure) Act 1999 as such disregard is an inherent feature of the offence of dangerous driving.
In assessing objective seriousness, I note that there is nothing to distinguish any of the five offences for which the offender is to be sentenced from the other. Importantly, I also bear in mind that all the offending arises from a single episode of driving. As will be clear from my earlier remarks, I am satisfied given the speed at which he was travelling, the erratic nature of his driving, the length of his journey, and his showing off, that the offender demonstrated an abandonment of responsibility as a road user as he drove on 6 September 2022. In making this finding I acknowledge the term "abandonment of responsibility" covers a wide range of driver behaviour and that it is certainly open to conceive of more serious examples of driver misconduct satisfying that description. That does not mean that such a finding should not be made if it is otherwise appropriate to do so.
Recently, in R v Eaton [2023] NSWCCA 125 at [56], Hamill J with whom Lonergan and Ierace JJ agreed, observed that the references to "moral culpability" in Whyte were "in fact or essentially, a reference to the objective criminality of the offending", in circumstances where in more recent times the terms "objective criminality" and "moral culpability" have been identified "as different but related factors in the complex mixture of things to be synthesised in exercising the sentencing discretion".
In DS v R; DM v R [2022] NSWCCA 156, the Court of Criminal Appeal confirmed that an assessment of the seriousness of an offence and the moral culpability of the offender are separate but related concepts. The former involves an objective assessment of the seriousness of the crime and matters causally related to it, whilst the latter is concerned with an offender's moral blameworthiness for an offence. Where a finding is made that an offender's moral culpability is reduced or lessened because of some personal circumstance, what is in effect being found is that the offender's moral culpability is less than the moral culpability that corresponds or substantially corresponds with the objective seriousness (or gravity) of the offence itself. A member of the court in DS v R; DM v R, Beech-Jones CJ at CL (as his Honour then was) had earlier made like comments in Paterson v R [2021] NSWCCA 273 at [29] to [31], and had there gone on to reiterate what Johnson J had said in Tepania v R [2018] NSWCCA 247, that in assessing the objective seriousness of an offence regard may be had to factors personal to the offender that are causally connected with or materially contributed to the commission of the offence, including (if it be the case) a mental disorder or mental impairment. It is the nature of the impairment, the circumstances of the offence and importantly, the degree of connection between these two aspects which will determine whether an offender's moral culpability is reduced, and that reduced moral culpability then has the effect of moderating the objective seriousness of his or her offence. Here there is no suggestion of any such causal or material connection between the offending and the offender's personal circumstances.
I am mindful of the imprecision involved in a sentencing judge attributing a label such as "high range", "mid-range" or "low range" to an assessment of the objective seriousness of a particular offence, and of the recognition by the Court of Criminal Appeal that such a categorisation can be of little utility. While a sentencing judge must always assess objective seriousness, it is not necessary for him or her to do so by ranking the offending on a notional scale: Pender v R [2023] NSWCCA 291 at [64] - [66]. What is required is identification of the facts, matters and circumstances that bear upon the appropriate sentence and this is what I have sought to do here. The assessment should be done in terms readily understood by the offender, the victim's families and members of the public and can be achieved by the use of adjectives such as "inconsequential", "trivial", "significant", "serious", "grave", "in the worst case" and so forth: Restricted judgment [2023] NSWCCA 10 at [52] per Button J with whom Meagher JA and Wilson J agreed. Having regard to all the matters I have referred to concerning the nature of the offending, I have concluded these are very serious examples of offences against s 52A (2) of the Crimes Act 1900.
While the guideline contemplates death or permanent injury to a single person, a greater number of victims will require an appropriate increment in the sentence to be imposed. In R v Price [2004] NSWCCA 186 at [38], Simpson and Howie JJ observed: "The fact that more than one person was killed as a result of the driving is such a significant attribute of the criminality arising from the offences charged against the respondent, that it had to result in a significant increase in the sentence that would have been appropriate in the typical case where only one person was killed".
Multiple victims require there be a degree of accumulation between counts to ensure the vindication of the death of those individual victims. Plainly, the consequences of an offender's conduct are more serious if there are multiple victims. As Lee CJ at CL remarked in R v Wilkins (1988) 38 A Crim R 445 (at 449), to proceed otherwise "would make the law a laughing stock". It would also have the effect of rendering the death of one or more of the victims as little more than a meaningless statistic. Further, it is necessary there be an increment in sentence to reflect these offences are aggravated versions of dangerous driving causing death, and each attract a higher maximum penalty than the offences with which the guideline judgment was concerned.

The impact on the victims' families

A court is always entitled to have regard to the effect that criminal behaviour has upon the victim of that behaviour. This common law rule is reflected in the terms of section 3A (g) of the Crimes (Sentencing Procedure) Act 1999 which provides that one of the purposes of sentencing is "to recognise the harm done to the victim of the crime and the community." In cases such as this where the primary victim of a crime has died the law permits particulars of the impact on the primary victim's immediate family to be taken into account.
At the sentence hearing on 21 November 2023 the Crown tendered as part of its material twenty-six victim impact statements provided by members of the families of the deceased victims. Twenty-two of those statements were bravely read to the court by the authors or somebody on their behalf. All of them, along with the remaining four statements which were simply tendered, have been considered by me. Without exception these victim impact statements were both moving and powerfully expressed the palpable grief and raw emotional torment family members have experienced since the death of their respective loved one. All who were present in court on 21 November 2023 will remember the experience for a very long time. I express my gratitude to all who prepared victim impact statements. They provided me with a clear impression of each victim and the enormity of the loss each family has endured, and the harm they have each suffered, and continue to suffer.
The law provides that the attitude of the various victim's family members, whether that be vengeance and hatred, or forgiveness, cannot interfere with the proper exercise of my sentencing discretion. I will however, as part of the instinctive synthesis, have regard to all the victim impact statements and to the wide-ranging effect the offender's crime has had upon each victim's family.

The offender's subjective case

Tendered in the offender's case were the affidavit of his mother sworn 15 November 2023, five character testimonials by people who know and speak well of him, a statement from him dated 14 November 2023, a letter from a prison chaplain dated 16 November 2023, and two psychologist reports prepared by Kerry Watson of InPsych Psychological Consultants dated 23 September 2022 and 19 October 2023 respectively. All of this material including the psychological reports were tendered without objection.
The offender is the eldest of three children born to his parents union. Throughout his life he has had the benefit of a settled and supportive homelife and is described as a dependable member of his family. Unlike many other young people who appear before this court charged with serious criminal offending, he was not exposed to any abuse or neglect in his childhood. His mother's affidavit which was unchallenged, makes abundantly clear that the offender's family has also suffered significantly as a consequence of his criminal behaviour. Given the enormity of the carnage for which he is responsible this is entirely unsurprising.
He experienced difficulties at school both academically and socially and his mother reports he exhibited features of anxiety throughout his childhood and adolescence. He has had a tendency throughout his life to associate with children who are younger than himself and is described as "naïve". The psychologist reports describe him as an individual with low average intellectual functioning, whose communication and social skills, along with his general behaviour were demonstrative of immaturity.
A review of the offenders school records by the psychologist in her second report confirms that in both primary and high school the offender laboured under intellectual and cognitive deficits, such that he consistently struggled with learning and self-regulatory demands that typically exist within the educational context. His school records, including his NAPLAN results indicate his achievement and commitment to learning as being predominantly below average. He left school during year 12 prior to completing his HSC. His school records also indicate a history of behavioural difficulties and poor interpersonal skills. He was impulsive and easily distracted. During 2016 some consideration was given to the possibility of the offender being on the autism spectrum however no such diagnosis was made. All these matters are confirmed by the unchallenged affidavit evidence of the offender's mother. Following the completion of his high school education the offender obtained full-time employment and is reported to have been hard working and diligent.
Much of the psychologist material deals with the offender's presentation following the collision. Ms Watson's first report was obtained, as I understand it, for the purpose of a successful release application made in the Supreme Court. It indicated that the collision had caused him to suffer a severe trauma response and complex and complicated grief associated with the loss of his friends. This was also associated with genuine remorse, survivor guilt and self-condemnation, and severe depressive symptoms with prominent suicidality. He was said to recurrently experience a feeling of reliving the collision. He described self-directed anger, guilt and shame. Overall the initial psychological assessment indicated symptoms consistent with both a long-term acute stress disorder and a chronic major depressive disorder.
Ms Watson's second report was prepared in advance of the sentence hearing. It indicated that the offender's current presentation remains largely unchanged from her initial report. On page 3 of her second report she notes the offender's current presentation remains indicative of:

A subjective sense of numbing, detachment, derealisation, depersonalisation, and disassociative amnesia during and after experiencing the traumatic event.
The persistent experience of recurrent, involuntary and intrusive distressing recollections of the event including images, thoughts and perceptions.
Recurrent distressing dreams of the event.
Disassociative reactions including flashbacks in which he feels as if the traumatic event is recurring.
Intense and prolonged psychological distress and exposure to cues (internal and external) that symbolise or resemble an aspect of the event, and physiological reactivity to these cues.
Persistent avoidance of stimuli associated with the traumatic event, including efforts to avoid distressing memories, thoughts and feelings about the traumatic event.
Negative alterations in cognition and mood associated with the traumatic event.
Disassociative amnesia and inability to recall important aspects of the event.
Feelings of detachment and estrangement from others.
A sense of foreshortened future.
A persistent negative emotional state including fear, horror, guilt, and shame.
Persistent inability to experience positive emotions.
Alterations in arousal and reactivity in association with the traumatic event including hypervigilance, exaggerated startle response, and problems with concentration.
Marked loss of interest in almost all activities, including that pertaining to his own well-being.
Self-critical and persistent negative beliefs about himself.
Feelings of worthlessness and guilt.
Diminished cognitive functioning in concentration.
Recurrent suicidal ideation and thoughts of death.
Persistent and recurrent sense of unreality of surroundings in which things seem unreal, dreamlike, distant and distorted.

In her second report Ms Watson opines that the offender's post-traumatic stress disorder and major depressive disorder are chronic and will persist in the long-term. Given all the circumstances this is hardly surprising, and in my view entirely predictable. She goes on to say that the best that may be hoped for is some mild reduction in the intensity and severity of these disorders if he continues to undertake relevant appropriate treatment. I accept her expert opinion as to these matters. While I accept that the offender may have some treatment available to him in a custodial environment, my experience as a legal practitioner and judicial officer informs me that such treatment is unlikely to adequately deal with the myriad of complex psychological issues he faces now and will continue to face into the future, including his ongoing and persistent suicidality. To the extent the Crown submitted I would be cautious in accepting the evidence of Ms Watson then I do not accept her submission. In the absence of cross examination of the expert and bearing in mind the offender need only establish matters favourable to his case on the balance of probabilities, I accept the conclusions Ms Watson has offered.
The offender's diagnosis of post-traumatic stress disorder and major depressive disorder mean that I must consider principles concerning the taking of mental health conditions into account on sentence. These are well-known and call for "a sensitive discretionary decision" that has regard to the particular circumstances of the case: R v Engert (1995) 84 A Crim R 67. In Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194 at [177-178], the relevant principles concerning these matters were gathered together by McClellan CJ at CL. He there said (with citations omitted): "177. Where an offender is suffering from a mental illness, intellectual handicap or other mental problems the courts have developed principles to be applied when sentencing: … They can be summarised in the following manner: • Where the state of a person's mental health contributes to the commission of the offence in a material way, the offender's moral culpability may be reduced. Consequently the need to denounce the crime may be reduced with a reduction in the sentence. • It may also have the consequence that an offender is an inappropriate vehicle for general deterrence resulting in a reduction in the sentence which would otherwise have been imposed. • It may mean that a custodial sentence may weigh more heavily on the person. Because the sentence will be more onerous for that person the length of the prison term or the conditions under which it is served may be reduced. • It may reduce or eliminate the significance of specific deterrence. • Conversely, it may be that because of a person's mental illness, they present more of a danger to the community. In those circumstances, considerations of specific deterrence may result in an increased sentence. 178. I should stress that the mental health problems of an offender need not amount to a serious psychiatric illness before they will be relevant to the sentencing process. The circumstances may indicate that when an offender has a mental disorder of modest severity it may nevertheless be appropriate to moderate the need for general or specific deterrence."

Comparable cases

The Crown provided me with a document titled "Summaries of Comparable Cases" which she submitted may be of assistance in determining an appropriate sentence to be imposed here. I can indicate that all of them have been considered bearing in mind the limitations in doing so which the High Court referred to in Hili v The Queen (2010) 242 CLR 520. Most relevantly none of the cases involved five victims. Courts should seek to promote consistency in sentencing, and in doing so it is generally important for them to have regard to what has been done in other cases and the reasons why. As noted by Simpson J in Director of Public Prosecutions (Cth) v De La Rosa (supra) at [303], "A history of sentencing can establish a range of sentences that have in fact been imposed. Such a history does not establish that that range is the correct range, nor that either the upper or the lower limit is the correct upper and lower limit. Sentencing patterns are, of course, of considerable significance in that they result from the application of the accumulated experience and wisdom of first instance judges and of appellate courts". It is crucial to bear firmly in mind that no two cases are identical.
The consistency in sentencing sought to be achieved is consistency in the application of relevant legal principles. It does not require numerical equivalence. While earlier decided cases provide a yardstick against which to measure the sentence to be imposed in any case, it is important to remember that the sentence ultimately fixed must be individual both to the objective circumstances of the offending and the subjective case of the offender.

Accumulation and Totality

There is no issue, nor could there be, that the only appropriate sentence in this case is one of full-time imprisonment. Considering principles of accumulation and totality, this is a matter which lends itself well to the imposition of aggregate sentences pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999, and I propose to proceed in that way.
In Osman v R [2020] NSWCCA 78 the Court of Criminal Appeal, per Lonergan J at [53] ff, with whom Johnson and Price JJ agreed, set out the relevant principles in respect of totality. In brief summary they are:

Whenever a Court sentences an offender for multiple offences, such as is the case here, it is necessary for the judge to ensure that the aggregation of all the sentences is a "just and appropriate measure of the total criminality involved".
The need to maintain an appropriate relationship between the totality of the criminality involved in a series of offences and the totality of the sentences to be imposed for those offences arises for at least two reasons. The first is that the severity of a sentence is not simply the product of a linear relationship. Severity may increase at a greater rate than an increase in the length of a sentence. The second is the proposition that an extremely long total sentence may be "crushing" upon an offender in the sense that it will induce a feeling of hopelessness and impact adversely on such prospects as there may be of rehabilitation and reform. Of course, in many cases of multiple offending, an offender may not be entitled to the element of mercy entailed in adopting such a constraint.
A sentencing court must, however, take care when applying the totality principle. Public confidence in the administration of justice requires the Court to avoid any suggestion that what is in effect being offered is a discount for multiple offending.

As I have earlier noted, it is necessary in this case that there be a degree of partial accumulation between sentences to appropriately reflect the five young victims. I have not found the resolution of this aspect of the sentencing exercise easy but in doing so have sought to give effect to the principles of totality I have just articulated.

The indicative sentences and the appropriate total term

As an aggregate sentence is to be imposed it is necessary for me, in accordance with the statutory scheme to note the indicative sentences that I would have imposed had I not determined to proceed in this way. The indicative sentence for each offence is arrived at having regard to the objective seriousness of the offending, all aspects of the offender's subjective case and the need to give effect to the purposes of sentencing generally. The 25% discount to reflect the utilitarian value of the offender's pleas of guilty is to be applied to these indicative sentences. As I earlier observed, there is nothing to distinguish one offence from the other.
The indicative sentences I regard as appropriate are as follows: Re Antonio Desisto (Sequence 6): a sentence of 5 years imprisonment less 25% making an indicative sentence of 3 years and 9 months imprisonment. Re Tyrese Bechard ( Sequence 7): a sentence of 5 years imprisonment less 25% making an indicative sentence of 3 years and 9 months imprisonment. Re Gabriella McLennan (Sequence 8): a sentence of 5 years imprisonment less 25% making an indicative sentence of 3 years and 9 months imprisonment. Re Summer Williams (Sequence 9): a sentence of 5 years imprisonment less 25% making an indicative sentence of 3 years and 9 months imprisonment. Re Lily Van De Putte (Sequence 10): a sentence of 5 years imprisonment less 25% making an indicative sentence of 3 years and 9 months imprisonment.
After synthesising all the relevant factors the total aggregate term of imprisonment I regard as necessary and proportionate is one of 12 years.

Special circumstances

Mr James KC has submitted that I would make a finding of special circumstances in favour of the offender to reduce his non parole period below the statutory ratio. What constitutes special circumstances will vary from case to case and is a discretionary finding of fact. A wide variety of matters are capable of amounting to special circumstances and warranting a reduction in what would otherwise be the statutory non-parole period. The primary consideration in such a finding should be the length of the minimum period of actual incarceration that is required to encompass the full range of issues relevant on sentence. In determining that period I must avoid counting again features of the offender's subjective case I have taken into account in fixing the total term: R v Fidow [2004] NSWCCA 172 at [18]. Notwithstanding the existence of special circumstances, I am not permitted to reduce the non-parole period below what is necessary to punish the offender and act as a deterrent to him and others.
Generally, the reform of the offender will often be the purpose in finding special circumstances, but this need not be the only purpose. Here, I am satisfied that given: i. the offender's excellent prospects of rehabilitation which having regard to his youth I must, consistent with authority, seek to promote; ii. the fact this is his first custodial sentence; iii. his need for post-release treatment to deal with his chronic mental health conditions; and iv. what I anticipate will be his need for support and guidance as he readjusts to life after a lengthy prison sentence, warrant in combination a finding of special circumstances. An extended period of supervision, treatment and intervention upon his release from custody will be in the best interests of both the offender and the community. I have finally concluded that the minimum period of custody the offender should serve is one of 7 years imprisonment.

Disqualification

The law is that there must be a mandatory driver licence disqualification upon conviction for these offences. The Road Transport legislation provides an automatic disqualification period of three years which can be reduced to a minimum period of one year. Pursuant to s 206A of the Road Transport Act 2013 any disqualification period will be extended by the period of imprisonment imposed. Put another way, it will commence upon the offender's release from custody. The law also provides that the disqualification period for each of the five offences is to be served concurrently: s 205(4) Road Transport Act 2013.
In all the circumstances I can see no basis upon which I should reduce the automatic period of disqualification and it was not submitted I ought do so. I note the offender's driver licence was suspended on the day of his arrest and the period of suspension he has served will in due course need to be accounted for by the authorities in accordance with s 206B of the Road Transport Act 2013.

Orders

The Orders I make in this matter are as follows: i. In all matters you are convicted. ii. Pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999 you are sentenced to an aggregate term of imprisonment consisting of a total term of 12 years and a non-parole period of 7 years each of which are to commence on 12 July 2023. iii. The indicative sentences are as noted earlier in this judgment. iv. You will be eligible for release on parole on 11 July 2030. v. Your sentence will expire on 11 July 2035. vi. In all sequences you are disqualified from holding or obtaining a driver licence pursuant to the provisions of the Road Transport legislation for the automatic period of three years. vii. Section 206B of the Road Transport Act 2013 is to apply.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 01 December 2023

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