R v Harris

Court of Criminal Appeal (NSW)|2015-04-16|Before: Basten JA, Hulme J, Adamson J

Solicitors: Solicitor for Public Prosecutions (Crown) Legal Aid New South Wales (Respondent) File Number(s): 2013/173265 Decision under appeal Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Date of Decision: 19 August 2014 Before: Wells DCJ File Number(s): 2013/173265

Judgment

BASTEN JA: I agree with Adamson J.

Table of Form 1 charges taken into account in sentence for Count 3 Offence / section of relevant Act Particulars Maximum penalty

S 154A(1)(a) Crimes Act 1900 (NSW) Take and drive conveyance (green sedan) without consent of owner (Ms Boyle, the respondent's partner) 5 yrs
S 12(1) Drug Misuse & Trafficking Act 1985 (NSW) Self-administer prohibited drug 2 yrs

The grounds of appeal

The appellant relied on the following grounds: 1. The learned sentencing Judge erred in law by failing to apply the decisions of this Court in R v Gillett [2006] NSWCCA 370 and this Court's guideline judgment in R v Whyte [2002] NSWCCA 343; 55 NSWLR 252 (Whyte). 2. The learned sentencing Judge erred in law by taking into account irrelevant matters as "mitigating" factors. 3. The learned sentencing Judge imposed individual and total effective sentences that are manifestly inadequate and "plainly unjust": 1. as a result of a finding that the moral culpability of the respondent for each of the offences was "within the mid-range of seriousness" when the only finding open on the evidence was that the moral culpability of the respondent was very high; and 2. as a result of failing to make the only finding available on all the evidence, namely that the index case was very substantially more serious than that envisaged in the typical case upon which the guideline sentence is predicated in Whyte; and 3. by failing to make required findings that the commission of the offences while on parole was a serious and aggravating factor and indicative of poor prospects of rehabilitation; and 4. having appropriate regard to all the relevant circumstances including the maximum penalties, the guideline sentence promulgated in Whyte, the application of the principle of totality and the criminality for which the Respondent was to be sentenced.
Except where otherwise indicated all references to statutory provisions in these reasons are to the Crimes (Sentencing Procedure) Act 1999 (NSW).

The Facts

The following narrative is derived from the Agreed Facts and evidence at the sentencing hearing.
Shaun Zagar had three children K, Z and J. In 2013 K, a boy of 6 (who would have turned 7 on 5 June 2013), and Z, a girl of 5, attended Casino Public School. J, a boy of 4, had not yet started school. The children's mother no longer lived with Mr Zagar. Mr Zagar lived with his three children and his new partner Felicity Grayson in a rural property in an area known as Stratheden, which is about half way between Casino and Kyogle. Usually it was Ms Grayson who would drive the older two children to meet the school bus in the mornings and Mr Zagar would stay at home with J as Mr Zagar was disqualified from driving for a period. However, on 4 June 2013, Mr Zagar drove them to the bus stop. That morning they were running late and, by the time they arrived at the intersection of Martins Road and McDonald's Bridge Road, Stratheden, where the bus would stop to pick up the children, the bus had been and gone. Unaware they had missed the bus, Mr Zagar parked on the grassy verge to wait.
In June 2013 the respondent was on parole for three offences of driving while disqualified. His sentence was due to expire on 13 August 2013. He was disqualified from driving until 15 April 2030. As a condition of his parole he was required to live with his parents in Kyogle, unless dispensation was given by his parole officer. His parole officer had given permission for the offender to stay two nights a week with his partner, Jodie Boyle, who was also the mother of their three children, T (aged 10), X (aged 4) and A (aged 3).
Ms Boyle lived in Dyraaba. She owned a green sedan, which she was licensed to drive. She did not permit the respondent to drive her car. She was prescribed methadone and collected her dose from a pharmacy in Kyogle from which the respondent also collected his prescription drugs.
The respondent suffered from epilepsy, which was treated with prescription medication: Valpro (two tablets twice a day) and Kevtam (five tablets a day, including two in the morning). He also took Antenax (Valium/ Diazepam). All three of these medications were endorsed with labels to the effect that the medication may cause drowsiness and warning the user not to drive if affected.
On 3 June 2013 the respondent became aware that the gas bottle that fuelled the family's hot water system was empty. That evening he arranged to meet his father, Roger Harris, at McDonald's Bridge on McDonald's Bridge Road at 8am the following morning, for the purpose of being provided with a new gas bottle, some milk and cigarettes. Before retiring for the night at Ms Boyle's home at Dyraaba, the respondent took his medication, drank two cans of Bourbon and Coke and smoked some cones of cannabis.
At 7.50am on 4 June 2013 the respondent woke. He roused Ms Boyle, who was still asleep in bed, and told her that T was unwell and would be staying home from school. When the respondent reminded Ms Boyle of the arrangement to meet his father at 8am, she told him to change the time. She went back to sleep. The respondent took the keys to Ms Boyle's car and strapped X and A into their car seats. T insisted on staying home. The respondent drove towards the place where he was to meet his father, who was already waiting at McDonald's Bridge. His taking and driving Ms Boyle's car was the subject of the first offence on the Form 1 (to be taken into account pursuant to s 32).
The respondent was driving east along McDonald's Bridge Road at a speed of at least 85kms per hour (in a 100km per hour zone) when he veered off the road. The green sedan became airborne and collided into the left side of Mr Zagar's vehicle. Mr Zagar, K and Z were killed as a result of the impact. The respondent, X and A remained in the green sedan. A suffered serious injuries (accepted to amount to grievous bodily harm), including a traumatic brain injury, broken right arm and a fractured jaw.
At about 8.30am, Ms Grayson realised that Mr Zagar had not returned from taking the children to the bus stop. When she heard the sirens, she took J with her to the end of Martins Road to investigate. She recognised her car in the paddock. She was told by police that no one in her car had survived.
Immediately after the collision, the respondent, who appeared to be in shock and disoriented, was crying for help. He gave different accounts to witnesses at the scene, including: that Mr Zagar's car had pulled out in front of his; that he did not see the car; that it was the other driver's fault; and that he suffered epilepsy and blacked out. The respondent told an ambulance officer that he had not lost consciousness and told a police officer that he had no memory and must have blacked out.
The ambulance officer, who observed that the respondent had difficulty concentrating and spoke slowly, considered him to be under the influence of a substance. The respondent appeared to another police officer to be in shock as well as very confused and dazed. On admission to hospital, the respondent dozed off and slurred his speech. Ms Boyle and friends attended the hospital and said that the respondent's appearance was consistent with his having suffered an epileptic seizure.
The respondent told a police officer and staff at the hospital that he was stationary at the intersection and the other car struck him. He said he had taken his epilepsy medications and consumed two cans of bourbon and cola and some cannabis the night before the offences. The respondent also admitted that he had smoked cannabis earlier on the morning of the collision (the second Form 1 offence).
The respondent was arrested on 5 June 2013. In a recorded interview with police, the respondent variously asserted he was stationary at the intersection and the other car struck him and that the other car pulled out in front of him. The respondent admitted he had problems with blacking out but denied that he blacked out at the time of the collision. The respondent said he had attended the Roads and Traffic Authority to enquire about the return of his licence but was told it depended on the type of epilepsy he suffered as he could have a fit while driving and kill someone. The respondent admitted to smoking cannabis the day before but not on the day of the collision. The respondent said he had consumed prescribed medication prior to the collision. The respondent denied he had taken morphine or methadone but, on hearing a recording of his conversation with police prior to treatment with morphine at the hospital, suggested he was affected by morphine.
The respondent told Dr Reutens, a psychiatrist, that he could not recall the collision and thought he had an epileptic seizure but that he did not usually experience auras warning of an impending seizure. The respondent confirmed he usually experienced a confused state for about 48 hours following a seizure. The respondent told Dr Pulman, a neuropsychologist that he could recall earlier parts of the journey but not the events immediately preceding the collision.
Analysis of the respondent's blood revealed the presence of drugs including diazepam, morphine, methadone and cannabinoids. Dr Perl, a pharmacologist, opined the combination of drugs would have impaired the respondent's ability to drive at the time of the collision.

The sentence hearing

The matter was listed before the sentencing judge for mention on 10 February 2014, at which time Mr Watts, who appeared on behalf of the respondent, informed the Court that the respondent had pleaded guilty on the basis of driving in a manner dangerous to the public, as opposed to the Crown's case of driving under the influence. The matter was adjourned for sentence to enable the statement of agreed facts to be prepared.
A fresh indictment dated 19 June 2014 was presented on that day. The respondent pleaded guilty to all counts. The proceedings on sentence commenced on 19 June 2014. The Crown tendered a bundle of documents which included: the indictment; the Court Attendance Notices; the Form 1 offences; aerial photographs of the scene post-impact; the Agreed Facts; and the respondent's criminal, traffic and custodial histories. The victim impact statements of Julie and Andrew Zagar (the parents of Mr Zagar and grandparents of K and Z); Michelle Lehmann (Mr Zagar's sister); and Kira Newbold (the mother of K and Z) were also tendered. The Crown also tendered photographs of the scene after impact and an expert certificate of Dr Benjamin Rahmel dated 29 May 2014 to establish the injuries to A, who has made a good recovery from injuries that were admitted to constitute grievous bodily harm.
Mr Watts, who appeared on behalf of the respondent at the sentence hearing, tendered Dr Reutens' report, dated 10 April 2014, and Dr Pulman's report dated 17 June 2014.
Dr Reutens made the following psychiatric diagnoses of the respondent: probable frontal lobe impairment secondary to traumatic brain injury; dysthymia; generalised anxiety disorder; and substance abuse. She also said in her report: "Mr Harris describes impulsive behaviour and lack of judgement in his decision to drive, which is a characteristic of frontal lobe syndrome. I cannot offer an opinion as to whether Mr Harris suffered from a seizure prior to the impact, and the opinion of a neurologist specialising in epilepsy would be of assistance. There is memory of his being at the scene of the accident, as he described flashbacks and nightmares of the aftermath of the accident and was able to recall some correct details of the accident to the police at the hospital and the following day in his recorded interview with the police. This is at odds with his statement to myself today that he could not recall anything except being in hospital. His behaviour after the accident was described as confused and aggressive. The ambulance officer Desmond WHITNEY noted he was restless and agitated, his speech was slow and he had to concentrate to understand questions. He later gave conflicting and implausible accounts of the accident. It appears that Mr Harris was in a confusional state. The confusion could be due to a number of conditions including intoxication. His partner stated that he behaved in a similar way when post ictal. It is unlikely that depression or anxiety would account for this presentation. Of concern is a history of worsening seizure control. Non-compliance with antiepileptic medication as evidenced by the absence of Valproate in his laboratory investigations post-accident is the most likely reason for his worsening seizure pattern. Mr Harris also identified a possible correlation with illicit substance use".
Dr Pulman reported the respondent's history that he had been kicked in the head by a horse when he was 18 months old as a result of which he had a metal plate inserted into his frontal lobe. He experienced his first grand mal seizure in 1999 when he was 22 or 23. The respondent reported that fatigue, sunlight or strobe lights, as well as cannabis and alcohol can act as triggers for his seizures. Dr Pulman's report contained the following expressions of clinical opinion: "Mr Harris has a history of severe traumatic brain injury resulting in loss of brain tissue in his right frontal lobe. The frontal lobe is responsible for higher order functions including judgement, planning, reasoning and impulse control. Mr Harris experienced difficulties with learning and behaviour and left school in Year 10. He had difficulties maintaining employment frequently changing jobs and engaging in illicit substance use….[He] developed post traumatic epilepsy in his early twenties. Although taking anti-convulsant medication, there is a history of simultaneous substance use and difficulties in seizure control. He has a history of driving offences and has repeatedly been charged with driving whilst unlicensed. He demonstrates a history of impulsivity, difficulties with planning and comprehending the consequences of his actions consistent with frontal lobe syndrome. The results of current neuropsychological assessment reveal abnormalities in his cognitive functioning. … His profile is suggestive of a history of both traumatic brain injury and epilepsy resulting from injury to his right frontal lobe. . . . Although it is not within my area of expertise to comment on the pharmacological properties of substances or to provide medical opinion, my experience in the assessment of patients with a history of epilepsy and/or traumatic brain injury has revealed patients often display behaviours including confusion and agitation as well as difficulties recalling information or having patchy memories in the post-ictal phase of an epileptic seizure. It remains unclear whether Mr Harris' behaviours post-accident are attributable to his substance use, possible post-ictal state or a combination of both."
Mr Watts confirmed that the applicant was not charged with dangerous driving under the influence of drugs, although he accepted that there were a number of drugs found in the applicant's system. He informed the sentencing judge that the plea of guilty was based squarely on the applicant's concession that his driving was dangerous because he suffered from epilepsy, which was not controlled by medication. Mr Watts conceded that the respondent was aware that his risk of an epileptic seizure was increased by drugs, alcohol and sunshine.
Mr Watts referred the sentencing judge to Whyte and R v Gillett. Mr Watts made submissions as to the various matters referred to in Whyte. He contended that the respondent had expressed remorse to Dr Reutens but accepted that limited weight could be accorded to such expressions since he did not give evidence at the sentence hearing.
At the conclusion of the submissions, the matter was adjourned to 19 August 2014 for the sentence to be passed, that being the earliest time on which the judge and counsel would be back in Lismore, her Honour having adjudged that it would be preferable in the interests of justice that the sentence be passed in Lismore.
On the adjourned date, the sentencing judge confirmed with the parties, prior to delivering her remarks on sentence, that it was accepted that the plea was based on the respondent's suffering the effects of epilepsy or the onset of epilepsy after he left home in the car on 4 June 2013 and that the journey was to be a short distance of 5-10kms.

The remarks on sentence

The sentencing judge recounted the facts which are set out above. Her Honour confirmed that the plea had been entered and accepted by the Crown on the basis that the respondent had suffered from the effects of epilepsy after he left home on the journey which led to the collision.
Her Honour summarised the subjective circumstances of the respondent. He was born on 30 October 1976 and was 37 at the time of sentence. He had a record of prior convictions including multiple convictions for driving whilst disqualified. On 16 February 2012, the respondent was sentenced for three offences of driving whilst disqualified to imprisonment for eighteen months commencing on 16 February 2012 and expiring on 15 August 2013 with a non-parole period of six months, expiring on 15 August 2012. The respondent was also further disqualified from holding a licence until 15 April 2026. Accordingly, at the time of the present offences the respondent was both on parole and disqualified from holding a licence. The sentencing judge said that, given the respondent's driving history, it was "difficult to make a favourable finding" regarding personal deterrence, and identified the need for personal deterrence as a "significant factor".
The respondent was the eldest of two children. His performance at school was below average. He had difficulty concentrating and reading. After completing Year 10, the respondent left school and was employed in a variety of positions. He was in receipt of a disability pension at the time of the offences. The respondent had been with his partner for 15 years at the time of the offences. However, their relationship had been volatile, particularly shortly prior to the offences.
The respondent suffered severe frontal lobe damage when he was kicked in the head by a horse at eighteen months of age. As a result a metal plate had been inserted in the respondent's head. The respondent began consuming cannabis when he was 16 and had continued to use it regularly. Although he had previously used other prohibited drugs, the respondent's illicit drug use was principally confined to cannabis in recent years. The respondent began suffering grand mal seizures in his early twenties. A CT scan of the respondent's brain during his hospitalisation following the collision disclosed low density of the frontal lobe underlying the area of the craniotomy suggesting significant encephalomalacia (softening or loss of brain tissue, which may be a result of trauma).
Her Honour found that the respondent reported that fatigue, sun or strobe light, or substances including cannabis and alcohol could trigger seizures and noted that the respondent said he ceased using cannabis during a period when he was taking anti-convulsant drugs but resumed as he continued to suffer seizures.
Her Honour noted that Dr Pulman and Dr Reutens were both of opinion that the respondent's significant brain injury and epilepsy combined to impair his judgment and to cause him to act impulsively. The sentencing judge accepted that the respondent had "chronic and severe problems" which interfered with his judgment and impaired his thinking in "many if not most aspects of his daily functioning".
However, the sentencing judge considered that, as the respondent had previously arranged to meet his father the morning of the collision, he had had the opportunity to consider his decision to drive. The judge noted that the respondent had known for a long time he suffered from his conditions and should not drive. Her Honour noted the respondent's epilepsy was not under control as he had not seen a neurologist since 2012 but continued to suffer worsening seizures and he knew from past experience that use of alcohol and cannabis made his condition worse. Her Honour found that the respondent's use of drugs had not materially impaired his ability to drive but the fact that there was "some low level" impairment was relevant as it showed he knowingly consumed them notwithstanding his condition.
Her Honour assessed the objective seriousness of the offences in the following terms: "It is difficult then to see how his irresponsibility in consciously deciding to drive with his knowledge of his condition and the very good prospect of an epileptic seizure in those circumstances, should to any significant extent reduce his moral culpability. It is difficult to see that what he did by driving in those circumstances was any less dangerous than a driver who had consumed a reasonable quantity of alcohol or drugs and then driven whilst materially impaired. His driving had every prospect of being impaired by a seizure. Even if he had not have understood that by the age of 37, on his own account he had been told that by a person at the RTA. There are some matters that mitigate the objective seriousness. There is no suggestion at all [of] excessive speed or deliberate erratic driving or material impairment by drugs or alcohol. The length of the journey was not, in the scheme of cases of this kind, a long one by any means. It did not involve travelling to a busy suburban area in the inner city or on a highway, but it was one that was completely and utterly unnecessary. Taking all of those matters into account with the principles in Whyte, his level of moral culpability remains within the mid-range of seriousness."
Her Honour noted the early pleas of guilty and specified that he should receive a discount of 25% for their utilitarian value. The sentencing judge found that the respondent's frontal lobe syndrome and chronic epilepsy would mean his time in custody would be more difficult. The sentencing judge found that he was remorseful.
Her Honour said: "The most important consideration is that an innocent young man and his children were killed as a result of this offender's selfish, senseless behaviour."
Her Honour referred to the submission made on behalf of the respondent that his frontal lobe syndrome and epilepsy should reduce the weight given to general deterrence but indicated that she was not persuaded that this factor should reduce the sentence significantly. The sentencing judge addressed specific deterrence in the following terms: "As to the need for personal deterrence, it is difficult to make a favourable finding given the offender's history. Of course the result of his unlawful driving on this occasion has been far more devastating than in the past when he has committed similar offences. His record does not assist him. Personal deterrence here is a significant factor, even though surely this time he has learned his lesson."
Her Honour refused to find special circumstances and said that a slight adjustment to the statutory ratio would be made solely to take account of the need for concurrency of the sentences imposed.

The appeal

It is well established that it is incumbent on the Crown on an appeal under s 5D of the Criminal Appeal Act to demonstrate that the discretion exercised by the sentencing judge was affected by appellable error: R v Hernando [2002] NSWCCA 489 at [12] per Heydon JA, cited with approval by the plurality in CMB v Attorney-General (NSW) [2015] HCA 9 (CMB) at [34]. The Crown must overcome an additional hurdle before this Court will re-sentence the respondent more heavily: it must negate any reason why the residual discretion of this Court not to interfere should be exercised: CMB at [36].
In CMB the plurality adopted Barwick CJ's dicta in Griffiths v The Queen [1977] HCA 44; 137 CLR 293 at 310 as to the purpose of Crown appeals: "On my view of the proper meaning of s 5D in the context of the Criminal Appeal Act, an appeal by the Attorney-General [or the DPP] should be a rarity, brought only to establish 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."
It may be that the Crown has, in endeavouring to identify an error such as would overcome the first of the two hurdles specified, felt the need to specify a number of grounds in its amended notice of appeal. However, although the amended notice of appeal contained three grounds, there is, in substance, only one: manifest inadequacy. The other grounds appear to me to form the basis for the substantive ground. The claim of manifest inadequacy is a conclusion and does not depend on the establishment of specific error: Dinsdale v The Queen [2000] HCA 54; 202 CLR 321 at [6]. Nonetheless the identification of specific error may assist to explain why, if it be so, a sentence is manifestly inadequate. Nothing in CMB supports, in my view, the proposition that specific error must be identified before this Court will intervene, if manifest inadequacy can be established.
I propose, in these circumstances, to address the substantive ground, but in so doing I will address the matters raised by the other "grounds".
The starting point for a consideration of a sentence for an offence under s 52A is this Court's guideline judgment in Whyte. In Whyte (at [204]) this Court identified what it termed a "typical case" of an offence of dangerous driving causing death or bodily harm contrary to s 52A of the Crimes Act 1900, which can be identified as involving the following characteristics: (a) Young offender; (b) Of good character with no or limited prior convictions; (c) Death or permanent injury to a single person; (d) The victim is a stranger; (e) No or limited injury to the driver or the driver's intimates; (f) Genuine remorse; (g) Plea of guilty of limited utilitarian value.
The guideline given pursuant to s 37A with respect to that typical case is that a custodial sentence will usually be appropriate unless the offender has a low level of moral culpability, as in the case of momentary inattention or misjudgment.
The following aggravating factors, which were said to recur frequently (at [216] - [217]), are: (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 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.
Items (iii)-(xi) were said to impinge directly on the moral culpability of the offender at the time of the offence. The Whyte guideline as to the length of the custodial sentence for that typical case, where the offender's moral culpability is high, was that a full time custodial head sentence of less than three years (in the case of death) and two years (in the case of grievous bodily harm) would not generally be appropriate. In the case of the aggravated version of each offence under s 52A of the Crimes Act, an appropriate increment to reflect the higher maximum penalty, and what will generally be a higher level of moral culpability, is required. Other factors such as the number of victims will also require an appropriate increment to the effective aggregate sentence. By its nature, a guideline judgment is a "guide" or "check". The sentence imposed in a particular case will be determined by the exercise of a broad discretion taking into account all of the factors required to be taken into account by s 21A.
It is apparent that the present cannot be regarded as a "typical case". The respondent was 36 at the time of the offending conduct. He was not of good character and had a lengthy record of prior convictions, principally for driving while disqualified. He was responsible for the death of three people, who were strangers. His own daughter suffered grievous bodily harm. The sentencing judge accepted that he was genuinely remorseful. As his plea of guilty was at the earliest possible opportunity, it was of significant utilitarian value, which was reflected in the 25% discount, which the Crown accepted was appropriate. Accordingly, only factors (d) and (f) applied in the present case and (d) applied only to a limited extent because there was more than one victim and the respondent's daughter was also a victim. The only respect in which it could be said that the respondent deserved a more favourable outcome than the typical case was that he was entitled to a greater discount for his plea (25% rather than, say, 10-15%).
Moreover, there were several aggravating factors, which increased the respondent's moral culpability: (i) and (ii) (all of the occupants in the other car were killed and his daughter suffered grievous bodily harm); (iv) (his abuse of substances and non-compliance with medication made him susceptible to an epileptic fit); and (vii) (he had been recalcitrant in engaging in driving notwithstanding that he was disqualified and had been warned not to do so because it was dangerous).
It follows that, in my view, the guideline judgment is useful only in providing a level below which the sentence imposed on the respondent could not reasonably be set, notwithstanding the difference in discount for the plea. The relevant judgment to be made was how much higher the sentence imposed on the respondent ought be.
The Crown challenged her Honour's finding that the respondent's "level of moral culpability remains within the mid-range of objective seriousness". It contended that her Honour's finding elided two separate concepts: moral culpability (which includes matters personal to the respondent) and objective seriousness (which, as the High Court said in Muldrock v The Queen [2011] HCA 39; 244 CLR 120 at [27], must be assessed without reference to matters personal to the particular offender or class of offenders and must be determined wholly by reference to the nature of the offending). Furthermore the Crown submitted that the respondent's moral culpability was high as was the seriousness of the offending conduct.
Further, the Crown submitted that the sentencing judge failed to give effect to the findings that: 1. the respondent's chronic and severe problems that interfered with his judgment and impaired his thinking did not alleviate his moral culpability other than to a "quite limited extent"; and 2. his irresponsibility in consciously deciding to drive, knowing that he had a "very good prospect of an epileptic seizure", should not reduce his moral culpability.
The assessment of the seriousness of the offending conduct is an important part of sentencing: see R v Campbell [2014] NSWCCA 102 at [27] per Simpson J, Hall J agreeing and the authorities referred to, including: R v Geddes (1936) 36 SR (NSW) 554; R v Dodd (1991) 57 A Crim R 349; Markarian v The Queen [2005] HCA 25; 228 CLR 357; Khoury v R [2011] NSWCCA 118 at [71]-[72]. The seriousness of an offence also needs to be assessed for the purposes of taking into account the maximum penalty: Veen v The Queen (No. 2) [1988] HCA 14; 164 CLR 465 at 478. However, where no standard non-parole period is applicable to an offence, it is neither necessary nor desirable for a sentencing judge to make an express finding of where on a scale of objective gravity a particular offence lies: R v Sivell [2009] NSWCCA 286 at [2] - [5] and Georgopolous v R [2010] NSWCCA 246 at [30]-[32] per Howie J, Allsop ACJ and Adams J agreeing.
When the respondent made the decision to drive shortly before 8am on 4 June 2013 he knew: a. he had frontal lobe damage, suffered from epilepsy and had a history of seizures since 1999; b. there had been an increase in the number and severity of the seizures from about once every 6 months in 2011 to every 3 or 4 months in the period prior to this collision; c. he had used cannabis the night before and the morning of the collision; d. he had not properly maintained the regime of anticonvulsant medication that had been prescribed for him; e. he had consumed diazepam on the morning of the collision (which had a warning on the label against driving and drowsiness); f. he had consumed methadone which had not been prescribed for him; g. cannabis and other drugs tended to trigger his seizures; h. the RTA had informed him that he could not obtain a driving licence because of the risk of a seizure and a fatal collision; i. he was disqualified from driving until 2030; j. since 1998 he had been prosecuted for at least 9 offences of driving whilst disqualified; k. he had been sentenced for those offences to short fixed terms in 1998 and 1999, suspended terms of imprisonment in 2001, 2004 and 2009, periodic detention in 2009 and three concurrent 18-month full-time terms of imprisonment in 2012; l. he was on parole in relation to those three terms imposed in 2012 for offences of driving whilst disqualified when the index offences were committed; and, m. his partner had told him shortly before he drove that morning to re-arrange the meeting with his father as he was not permitted to drive.
His decision to drive was a grossly irresponsible one. His moral culpability depended, to a large extent, on whether his judgment to make such a decision was compromised by the mental impairment he suffered as a result of the brain injury he sustained when he was 18 months old. Her Honour found that the respondent's frontal lobe disorder only had a limited effect on his judgment. That judgment should be accepted. In these circumstances the respondent's moral culpability must be regarded as high (see R v Gillett at [47]).
Although a motor vehicle is a modern convenience when properly handled, it is a deadly weapon when its driver is incapable of manoeuvring it safely. Once the respondent made the decision to drive, he made himself, those of his children who were passengers in his car, and any driver, passenger or pedestrian whom he might encounter on his journey, hostages to fortune. His ability to drive was already impaired to some extent by the drugs he ingested. If the risk of an epileptic response rendering him incapable of handling the vehicle (which was a real risk in light of what he knew as set out above) came to pass, it was a matter of pure chance whether any ensuing collision would result in injuries to himself and the occupants of his vehicle or to others, and whether death would ensue. The respondent decided to take that chance, although the only inconvenience that would have resulted from a decision not to drive would have been that his father would have been left waiting at the meeting place and the respondent might have had to wait a little longer for the cigarettes, gas bottle and milk that were to be handed over.
The sentence must reflect the respondent's moral culpability (which I assess to be high) as well as taking into account his other subjective circumstances. The consequences of his offending (the deaths of Mr Zagar, K and Z and the grievous bodily harm to A) form part of the offences to which he pleaded guilty and accordingly cannot be taken into account separately as circumstances of aggravation.
The sentences imposed by her Honour, both individually and in their total effect were, in my view, manifestly inadequate to reflect the seriousness of the offences. The applicant's subjective circumstances do not justify leniency: his recidivism with respect to driving while disqualified displays a long-standing disregard of the law and the safety of others. That he was prepared to drive a car while on parole is another instance of this. The sentencing judge's remark "surely this time he has learned his lesson" was not a finding but rather a rhetorical expression of hope and in no way diminished the weight to be given to specific deterrence. Her Honour did not find that his mental condition had more than a limited effect on the importance of general deterrence. I am satisfied that the sentences imposed are manifestly inadequate.
The Crown has surmounted the first of the two hurdles required before this Court will intervene to re-sentence the respondent. I turn now to the second matter: whether the Crown has discharged its onus of negating any reason why the residual discretion of this Court not to interfere should be exercised.

The residual discretion

For the following reasons I am persuaded that the residual discretion ought not be exercised in the present case.
There has been no relevant delay in either the institution of the Crown appeal or the period within which there is likely to be a resolution of the Crown appeal. The sentence was passed on 19 August 2014. The notice of appeal was filed on 29 August 2014. An amended notice of appeal was filed on 24 March 2015. Although grounds were added, it was, in substance, the same as the notice of appeal and converted that which might be regarded as submissions in support of a manifest inadequacy ground into separate grounds, or sub-grounds. The appeal was heard on 16 April 2015. The non-parole period is not due to expire until 14 November 2016.
The appellant did not make any submissions in this Court that are relevantly different from those made to the sentencing judge. The error made by the sentencing judge was not the result of any misstatement of the law or facts or any erroneous submission made by the Crown.
In support of his contention that the residual discretion ought be exercised, the respondent relied on his affidavit of 10 April 2015 and an affidavit of Ms Low, the Legal Aid solicitor with carriage of the matter on behalf of the respondent of 10 April 2015. The evidence established that the respondent has suffered additional stress and sleeplessness as a result of the Crown appeal but did not establish that such response was other than one which could reasonably be expected to follow from the prospect that a sentence of imprisonment might be increased.
I consider the sentence passed to be manifestly inadequate. Accordingly, in my view a substantial increase is warranted. It is important for this Court to identify elements of offending which may take a particular case outside a guideline judgment.

Re-sentencing

In his affidavit referred to above the respondent deposed to his present job in ground maintenance in the Mid North Coast Correctional Centre, which involves mowing the lawn, looking after the garden and removing rubbish. He has enrolled to commence the SMART programme, which is a drug and alcohol rehabilitation programme, but this has not yet commenced. Since being taken into custody in June 2013 he has not had a visit from his partner or any of his three children, which he deposed was "mainly" due to the cost and distance involved. His time in custody will be more onerous because of his epilepsy and traumatic brain injury, although his epilepsy may be better controlled as long as he does not take illicit drugs. His prospects of rehabilitation cannot be said to be good or to have measurably improved since the sentence hearing.
I would prefer to re-sentence by passing an aggregate sentence: since all offences arose from the single incident there is nothing to be gained by expressing the degree of concurrence or accumulation, or specifying cascading commencement dates. I propose that an aggregate sentence of seven years and six months be passed with a non-parole period of five years and six months. I indicate the following sentences for each offence, after making allowance for a 25% reduction for the respondent's plea of guilty. Count / section of Crimes Act 1900 (NSW) Particulars Maximum term Indicative sentence before 25% discount for plea Indicative sentence passed (after reduction of 25% for plea)
S 52A(1)(c) Dangerous driving causing death of Shaun Zagar 10 yrs 6 yrs 4 yrs 6 mths
S 52A(1)(c) Dangerous driving causing death of K 10 yrs 6 yrs 4 yrs 6 mths
S 52A(1)(c) Dangerous driving causing death of Z 10 yrs 6 yrs 3 mths 4 yrs 8 mths (including Form 1)
S 52A(3)(c) Dangerous driving causing grievous bodily harm to A 7 yrs 4 yrs 3 yrs

Proposed orders

I propose the following orders: 1. Appeal allowed. 2. Quash the sentences imposed by Wells DCJ on 19 August 2014 and, in lieu thereof, sentence the respondent to an aggregate term of 7 years 6 months with a non-parole period of 5 years 6 months to commence on 15 August 2013. The earliest date on which the respondent will be eligible for release is 14 February 2019.

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Trafficking Act 1985(NSW)

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