R v Koosmen

District Court of NSW|2024-04-09

JUDGMENT

Benjamin Koosmen appears for sentence after entering pleas of guilty to a number of offences committed by him in the course of an extended criminal escapade on 1 December 2022.
Despite being disqualified from driving and under the influence of illegal drugs, including cocaine and methamphetamine, he unlawfully acquired a motor vehicle which he then drove while being pursued by police for over an hour. In the course of running a red light, he collided with a motorcycle and killed the rider, Mr Christian Langham. He fled the scene without stopping to render any assistance and then broke into nearby premises where he intimidated and subsequently assaulted one of the owners. He broke into a second premises which were immediately adjacent and also intimidated that owner. He subsequently entered a third premises where he stole car keys and a vehicle.
The major offence to which he has pleaded guilty is a charge of manslaughter which carries a maximum penalty of 25 years.
I will refer specifically to the detail of the other charges to which he has pleaded guilty in the course of outlining the facts which unfolded on the evening of 1 December 2022.

OBJECTIVE SERIOUSNESS

There are a number of different categories of offences before this Court for sentence. To a certain extent some of them overlap. I propose to assess each of the charged offences by reference to their objective criminality when viewed against similar offending.
The high degree of recklessness involved in the offender's driving which resulted in the tragic death of Christian Langham has resulted in him being charged with manslaughter, attracting a maximum penalty of 25 years, rather than the offence of dangerous driving occasioning death which would attract a maximum penalty of 10 years, or aggravated dangerous driving occasioning death which would attract a maximum penalty of 14 years.
The offence of manslaughter covers a very wide range of criminal conduct and a very large variety of differing circumstances and acts which might occasion the death of another human being. I do not propose to assess the objective seriousness of vehicular driving per se as against other circumstances occasioning death. I do propose to assess the objective seriousness by a consideration of other factual circumstances in which the manner of driving and the state of the driver has been the cause of the death of a third party.
Relevant factors in that assessment include that the offender was disqualified from driving. He had ingested a quantity of alcohol and illicit drugs and was in a state of very significant impairment of his psychomotor functions and a very substantial impairment of his driving ability. He took and drove a vehicle in direct contravention of both a prohibition imposed by his parents and in the face of their physical attempts to prevent him from leaving the property in the vehicle. He ignored their persistent importuning over the telephone to return home.
He ignored the flashing lights and sirens of a police vehicle and failed to stop. He accelerated away from the pursuing police vehicle on a number of occasions at speeds and over double lines in a manner which was clearly dangerous. He displayed an extreme level of recklessness in crossing through a major intersection contrary to a red light, not once, but twice.
The length of time he was driving and the distance which he had travelled, whilst not calculated with the precision found in some other cases, was not insubstantial and reflected a real and continuing potential danger to other road users.
After the collision itself, the offender fled from the scene. Whilst he is separately charged with that offence and it is ultimately important that there not be double counting, his failure to stay and render assistance is reflective of an increased moral culpability with respect to the death of Mr Langham.
I assess the objective seriousness of his actions and manner of driving as very high in the range of objective seriousness. The combination of aggravating features relating to the circumstances of his driving lead to no other conclusion.
With respect to the offence which has been placed on a Form 1, namely the failure to stop and render assistance in circumstances where there is a death, he was essentially physically unharmed. He was able to get out of his vehicle and flee the immediate scene before breaking into a number of homes, presumably in search of an opportunity to acquire another conveyance.
I reject the submission made on his behalf that the apparent immediate death of the victim and hence the logical futility of any attempt to render assistance, somehow reduces the objective seriousness of his offending. Parliament has prescribed a larger maximum penalty for an offender who departs the scene where death results than an offender who departs the scene of a collision in which grievous bodily harm results.
In my view the objective seriousness of the offender's departure from the scene and a failure to even ascertain what the outcome of his conduct was, falls well within the mid-range of objective seriousness for such offending.
The second substantive offence relates to the aggravated break and enter of Mr Wang's premises and the commission of a serious indictable offence therein.
The victim was at home, alone, late at night. The offender forcibly entered the villa and subsequently physically assaulted the homeowner.
Whilst not at the lowest end of a range of objective seriousness, in my view however, it falls below the mid-range.
The third substantive offence relates to breaking and entering into the adjacent front villa at 5 Macquarie Road and intimidating Ms Orman in her villa. This offending similarly falls below the mid-range.
The last substantive offence relates to the theft of the car keys from the third premises which the offender entered after leaving the scene of the collision. The theft was opportunistic and took place while one of the home's occupants was present. While an inevitably serious theft, because the theft of car keys almost invariably leads to the commission of another substantive offence, namely stealing a motor vehicle, I would assess the overall objective seriousness of this matter as falling somewhere below the mid-range.
Of course, the subsequent taking and driving of the motor vehicle with the stolen keys, and the consequent damage to the locked gate and fence in the endeavour to leave that scene, must lead to an increase in an appropriate sentence relating to the larceny of the car keys, those subsequent offences having been placed on a Form 1.

VICTIM IMPACT STATEMENTS

Victim impact statements were provided to the Court from the mother and father of Christian Langham, from his sister Emma Langham, and from his partner Susan Price. They were accompanied by moving photographs of the deceased both on his own and with his partner and his dog. His partner Susan Price bravely read her victim impact statement to the Court herself. The devastation felt by each of the victims following the death of Christian is immeasurable. The raw emotional torment that each of those close members of his family, including his partner, and their palpable grief is evident in those victim impact statements.
The enormity of the loss suffered by each of the victims and the emotional and psychological harm that they have each endured and continue to suffer is palpable.
The good character and contribution to the community by the late Christian Langham clearly indicate that the community at large is also a victim in having lost the contribution to society of this outstanding individual. The Court acknowledges this loss, particularly to those who have provided the victim impact statements. Those statements are taken into consideration in the instinctive synthesis leading to an appropriate sentence in accordance with s 30A of the Crimes (Sentencing Procedure) Act 1999 (NSW).
I specifically recognise the harm occasioned pursuant to s 3A(g) of that Act. However, whilst relevant to the instinctive synthesis, that harm does not operate as a separate aggravating factor.

SUBJECTIVE FACTORS

A psychiatric report from Dr Richard Furst was tendered on behalf of the offender. It sets out the personal background of Benjamin Koosmen. The offender also gave evidence on oath in the sentence proceedings.
The offender was born in October 1989 and is currently 34 years of age. He has two daughters from an earlier 10-year relationship who both reside with their mother.
He commenced the relationship with the mother of his daughters when he was about 16 years of age.
He had left school at about 15 years of age in year 9. He subsequently worked as a concreter by trade until his early 30's.
He commenced using cannabis from the age of 13. He started using amphetamines at weekends on a regular basis around the age of 15. His drug addiction gradually escalated and from his early to mid-20s he was using 'ice', heroin and cocaine. His increasing drug use ultimately had an adverse effect on his work from around 2018 to 2019. This was a period in which he was arrested and incarcerated on multiple occasions.
He told the psychiatrist that he was a moderate drinker of alcohol, generally having a beer after work with the odd occasion of excessive drinking on weekends. The psychiatric report noted that in his Reception Screening Assessment when he went into custody in December 2022, he reported drinking 5 to 10 drinks per day, in the period leading up to his arrest.
The offender described having had "trust" issues in his relationship and experiencing symptoms of paranoia and anxiety. He described taking drugs to block out these feelings.
He had been referred to the Toronto Drug Court program in 2019 in relation to driving offences which I will refer to in the course of dealing with his antecedent criminal history. He completed the Drug Court program including a residential rehabilitation admission for 5 months at Dooralong Transformation Centre in Wyong and, according to his evidence before the Court, 18 months in total at Adele House in Coffs Harbour.
He had, over a period of 2 and a half years, been in an on-and-off relationship and with a woman from whom he had separated in October 2022. In due course he moved in with his parents who lived near Lake Macquarie.
In his evidence before the Court, the offender described having had nothing to do with his daughters until late 2021 or early 2022. Over a period of about 8 months, he and his former partner had worked towards having the girls effectively in joint custody. They would be with their father every second weekend and on each Wednesday during the week. However, in due course, he had relapsed and engaged with further drug abuse.
The offender described to Dr Furst that his moods had been "up and down" and that he had ongoing symptoms of paranoia during 2022 and leading up to the events of 1 December 2022. However, Dr Furst noted that the various mental health assessments conducted when the offender went into a custodial institution in December 2022 were indicative of psychotic symptoms not being present earlier in 2022. Dr Furst also expressed the opinion that the offender's ability to maintain a relationship in 2022 and the fact that he was still sufficiently functional to be employed, made the presence of a major mental illness, such as schizophrenic bipolar disorder, unlikely.
With respect to the events of 1 December 2022, Koosmen told Dr Furst that he felt "paranoid" and "stressed" and that his anxiety had been "through the roof" that evening. He told the psychiatrist, as he said to the Court in his sworn testimony, that he had only had one schooner of beer and a single line of cocaine. The impression of the psychiatrist was that the offender was "appearing to minimise his alcohol and drug consumption".
He told Dr Furst that he could remember "moments" of what had happened including his driving but that he had an incomplete recollection for the events in question. He described thinking he had to "get away" and said that he was convinced of that belief at the time, suggesting he felt paranoid. He expressed remorse about what had happened and said that it was "massive to him". He recognised that "someone lost their life" and said "it should not have happened".
Dr Furst described the offender as expressing "a lot of regret and remorse about his offending actions that resulted in the death of the victim." Dr Furst reviewed medical records provided to him by the offender's solicitors. These included an assessment as an outpatient by Dr Fieuw-Makaroff, General Practitioner at Booragul, on 30 January 2015. The symptoms which were reported dated back to 2014 and included emotional dysregulation and anger, irritability, insomnia and negative thinking. These dated from when the offender was about 24 years of age. He reported a history of previous suicidal thoughts, including thoughts of crashing his motor vehicle. He said that he had called crisis help lines, including Beyond Blue, on a number of prior occasions.
The offender attended the same medical centre in Booragul approximately 18 months later on 5 August 2016. On that occasion he consulted with Dr Peter McGeoch, a general practitioner. He reported a history of feeling "down" and having poor sleep. He was prescribed two antidepressant medications, specifically Lexapro 10 mg daily and Avanza 15 mg orally at night. Dr Furst suggested that his depression and his anxiety were clinically significant at that time.
A Mental Health Report was prepared on 11 March 2019 by Ms Karen Flannagan, a clinical nurse consultant who was working in a court liaison capacity for New England Health. That report indicated that the offender said he had been using 'ice' since he was 24 years of age. He had been released from custody on 1 March 2019 and immediately relapsed into using 'ice' on a daily basis. He was re-arrested on 7 March 2019 following a motor vehicle accident and driving whilst disqualified. These charges were referred to the Toronto Drug Court.
The offender reported that his drug use was making him anxious and paranoid and that he wished to address his drug addiction issues through admission to a rehabilitation centre. This report then led to an admission to Dooralong and Adele House between 2019 and 2021.
The offender was admitted to the Mater Hospital in Newcastle in January 2021 after presenting with paranoid delusions against a background of drug use. At the time of that admission, he described feeling frustrated, agitated, paranoid and depressed. He believed that people were after him and wanted to get rid of him. He was prescribed the anti-psychotic medication Olanzapine 5 mg daily and his symptoms resolved fairly rapidly. There were no indications that he was hearing voices and his mood and affect returned to normal within about 2 days. Pathology tests and a CT scan of his brain were normal. He was referred back to his GP.
He had a mental health follow-up between 19 January 2021 and 12 February 2021. The clinical notes in January 2021 indicate that he had significant anxiety and paranoid symptoms and beliefs that people wanted to kill him. He described these symptoms having persisted since an initial episode of psychosis some 8 to 9 months previously. This referred to an episode of paranoia and delusional thoughts that had lasted 3 to 4 days in March or April 2020. At the time of the assessment in January 2021, the offender said that he thought people from his past were "coming to kill him." He said that he was not using drugs at the time of his presentation in early January 2021, although he had been using cocaine and 'ice' when he had the previous psychotic episode around April 2020. In October 2021, following the relationship break up with his "on and off" partner, he attempted to hang himself while intoxicated with alcohol and cocaine. He was found by his mother with an electrical cord tied around his neck. He was admitted to the Mater Hospital from 9 October 2021 to 11 October 2021. On admission he felt remorseful and regretful about his actions. He had not been taking the anti-psychotic medication (Olanzapine) that had been prescribed during his previous admission in January 2021.
Following the accident resulting in the death of Christian Langham on 1 December 2022, the offender had been admitted to the John Hunter Hospital. Dr Furst noted that the Discharge Summary on 2 December 2022 did not raise any concerns about the offender's mental health.
Following his admission into custody, a Reception Screening Assessment, which was completed on 4 December 2022, indicated that he reported drinking 5 to 6 drinks per day, and that he was using cocaine once or twice per week. He denied using any other drugs. Dr Furst said that the offender's responses on the Reception Screening Assessment Questionnaire, and what he described as the KESLER-10 in particular, went against the presence of a pervasive or severe mood disturbance in the period prior to his arrest and also went against the presence of a psychotic illness.
Dr Furst referred to the blood sample which had been analysed in relation to pharmacology/toxicology and expressed the opinion that his driving would have been impaired and also his cognitive state, making acute drug intoxication the most likely cause of his disorientation, confusion and paranoia. Dr Furst said that Mr Koosmen was most likely suffering from a substance-induced mental disorder at the time of his offending, which was a complication of his underlying substance use disorder.
Resolution from this drug-induced psychosis within a matter of days was consistent with this diagnosis.
Perhaps unsurprisingly, Dr Furst thought that the most important factor in long term rehabilitation was ensuring abstinence from alcohol and drugs of abuse. He would have good prospects of returning to the work force and a lower risk of reoffending if he remained abstinent from those substances.
In his evidence before the Court, the offender expressed a belief that there may have been methylamphetamine in the cocaine that he had taken prior to the accident. He denied having consumed any methylamphetamine that evening. He described his memory of the events of the evening as "patchy at best". He remembered driving at some points but asserted no memory of Police putting on their lights or sirens. He described his memory as "very flashes" and said that he remembered very little.
It is appropriate to observe at this juncture that whether he took methylamphetamine on the night and has forgotten that he did so, or whether there was methylamphetamine mixed with the cocaine which he ingested, makes little, if any, reduction in moral culpability with respect to his drug and alcohol self-induced state.
The offender indicated that he had completed the Positive Lifestyle Program whilst in custody. He gave evidence of the frequency of lock-ins at the Mid North Coast Correctional Centre which he estimated as being half the time he had been there.
He gave evidence that the internal charges against him whilst in custody related to possession of "a bit of bupe" or buprenorphine and with respect to another charge of possession of prohibited goods, he gave evidence that he was in possession of a plastic knife which had been melted into an L-shape for the purposes of effecting tattoos whilst in custody.
In the course of cross-examination, he agreed that he had been drug affected at the time of an earlier collision where he had taken his mother's car without her consent and whilst disqualified from driving. He said that he had reflected on how bad drugs were for him whilst in custody for 3 months following that collision.
The length of time he had estimated as having been in drug rehabilitation was challenged by the Crown Prosecutor and he acknowledged that his memory was not good with respect to that particular point.
He agreed that he knew that taking illicit drugs made him do reckless things.
In further cross-examination he agreed that he had had another collision with a vehicle in which there was a mother and two children with which he had collided and that that matter had not been finalised before the Court when the accident giving rise to the present matter occurred. The offender also described having been stabbed during a previous period in custody. He said that he had been put into protection after that happened, and that he was again in protection at the present time. There were no records produced in relation to those circumstances.
Tendered in his case were three letters of reference. One from his mother, Mrs Janelle Koosmen, in which she described that her son appeared to be in a paranoid state that night. She said that when her son had telephoned her the following day in tears, he said the Police had told him he killed somebody, but he could not recall the events. She described him having battled addiction and said that he had expressed remorse to her, saying how sorry he was for what had happened.
A second letter of reference was from Skye Babula. She described having been in an intimate relationship with the offender for a period of 12 months during 2019 to 2020. She is described as a case manager for a family and domestic violence service. The offender had said in his evidence that she was a support worker attending a seminar who he met while he was in drug rehabilitation and she was there attending the seminar. She described the offender wanting to take full responsibility for his actions by his plea of guilty. She said that he had expressed to her his sincere remorse for the tragedy and how much he deeply regrets the pain and loss experienced by the victim's family. She expressed the belief that with the right support and resources, he had the potential to contribute positively to society and to rebuild his life.
A third reference was tendered from Rhys Byrne. Mr Byrne describes the offender as being very loyal and a respected person in his, Mr Byrnes', family. He described the offender having helped Mr Byrne's parents, who are elderly, in undertaking building work including concreting and bricklaying around their house. Mr Byrne expressed the opinion that "this incident with Ben seems totally out of character for him as it just does not seem like something he would do. It is totally out of character for the Ben that I know to have done this."
I am constrained to observe in passing that I doubt that Mr Byrne has seen the traffic history and criminal antecedents of his friend.

CRIMINAL ANTECEDENTS AND TRAFFIC HISTORY

The Court would often endeavour to refer to particular relevant portions of an offender's antecedents, and if appropriate their traffic history, in the course of setting out the narrative chronology of their subjective circumstances. I have not endeavoured to do that in the particular circumstances of this matter.
Similarly, the Court will often refer in a general and summarised fashion to a past criminal history and the circumstances of numerous transgressions of the traffic regulations and rules. In light of the nature of Mr Koosmen's offending in this matter, I have come to a view, notwithstanding its length, that a proper assessment of his moral culpability and a transparent examination of that assessment, militate in favour of setting out his record in a more full fashion.
To do otherwise would not accurately paint the picture of this offender's continued and repeated ignoring of conditions and constraints imposed upon him by Courts and his persistence in repeatedly driving while suspended or disqualified.
As previously noted, the offender was born in October 1989. He first got his Provisional Driver Licence in October 2006 when he turned 17.
The next month, in November 2006, he was booked for exceeding the speed limit by more than 30 km/h. He was fined $590 and his provisional licence was suspended for 6 months commencing in January 2007.
In April 2007 he was booked for driving while suspended. He was also booked for not wearing a seatbelt. He was fined $800 for driving while suspended and disqualified by Court Order from driving for one year from 2 May 2007.
He completed that period of disqualification and in July 2008 he was reissued with a Provisional Driver Licence.
His first criminal offence was committed in October 2008, shortly after his 19th birthday. He was charged with obtaining money by deception in an amount under $15,000. He received a Community Service Order of 150 hours.
In May 2000, he was booked for exceeding the speed limit by more than 45 km/h. The fine was $1,674.
He then had a not insubstantial period of almost a decade with no recorded offences.
In September 2009, in Orange, he was charged with common assault and assault occasioning actual bodily harm. The offences had occurred in August 2009. In April 2010 at Orange Local Court, he was fined $500 for the common assault and given a 6 month suspended sentence pursuant to section 12 of the Crimes (Sentencing Procedure) Act 1999 for the assault occasioning actual bodily harm.
In September 2009, he was also booked for exceeding the speed limit by more than 20 km/h, but not more than 30 km/h.
He turned 20 years of age in October 2009.
It would appear that at some stage he allowed his Driver Licence to expire. I infer from subsequent offences that it likely lapsed in July 2010.
In February 2011, he was booked for driving unlicensed, his license having been expired for less than two years. As a first offence in five years, he was fined $430.
In March 2011 he was booked for the same offence of driving whilst unlicenced, again as a first offence in five years, and similarly fined $430. One can only presume that the magistrate was not given a correct traffic record as it was the second time he had been booked for the same offence in 2 months.
In December 2012, he was again booked for driving without a licence. On this occasion he was dealt with at Court and fined $550 for driving without a licence in circumstances where his licence, by that time, had expired more than two years earlier.
In February 2015, he was again booked for driving whilst unlicensed. He was also charged with driving with the mid-range prescribed concentration of alcohol.
The NSW Traffic Record Report indicates that on 27 May 2015 he was fined $500 in the Local Court at Toronto for each of the offences and disqualified from driving for 3 years.
I note that this appearance at Toronto Local Court does not appear on the New South Wales Police printout of his Criminal History.
Approximately five weeks later, on 1 July 2015, he was booked for driving a motor vehicle whilst disqualified.
On 13 July 2015, he was charged with stalk or intimidate with intention to cause fear or physical harm pursuant to the domestic violence legislation.
On 29 July 2015, he failed to appear at Toronto Local Court with respect to the stalk or intimidate offence. He was convicted in his absence and a warrant for his arrest was issued.
On 5 August 2015, he failed to appear at Belmont Local Court with respect to the driving whilst disqualified which had occurred on 1 July 2015. He was convicted in his absence and a further warrant for his arrest was issued.
On 9 September 2015, he was convicted of the two offences of failing to appear under section 10A with no additional penalty.
With respect to the driving whilst disqualified offence he was placed on a section 9 Good Behaviour Bond for 12 months and disqualified from driving for a further period of 2 years. The effect of this additional disqualification was that he was disqualified from driving until 27 May 2020.
With respect to the stalk or intimidate domestic violence offence he was placed on a section 9 Bond to be of good behaviour for a period of 2 years.
The following day, 10 September 2015, he was charged with possession of a prohibited drug and possession of equipment for administering prohibited drugs, such offence having occurred on 6 September 2015.
On 21 October 2015 he was fined $500 for each of those drug offences at Toronto Local Court.
10 days later, on 31 October 2015, he was again pulled over driving a vehicle whilst disqualified. Police stopped him after he had been driving at 130 km/h in an 80 km/h zone. He was charged with exceeding the speed limit by more than 45 km/h and stating a false name after giving police the name and date of birth of his brother.
He was fined $2,306 with respect to the speeding and appeared in Maitland Local Court on 25 February 2016 with respect to the other matters. He was fined $250 for stating a false name. He was sentenced to 9 months imprisonment, to be served by way of an Intensive Correction Order with respect to the driving whilst disqualified.
The section 9 Bond, which had been imposed on 9 September 2015 with respect to the earlier driving while disqualified offence from July 2015, was called up. In lieu of the section 9 Bond he was sentenced to 9 months imprisonment, also to be served by way of an Intensive Correction Order (ICO) and served concurrently with the second offence of driving whilst disqualified.
On the same date, 25 February 2016, the section 9 Bond which had been imposed for the stalk or intimidate offence was also called up. It was reimposed to also include counselling and drug and alcohol rehabilitation.
On 29 May 2016 he was arrested, apparently for a breach of the conditions of his Intensive Correction Orders. His custody record indicates that he was in custody for approximately two months between 29 May 2016 and 27 July 2016. There is no corresponding entry in his criminal history and it is unclear what that breach was.
On 24 June 2016 he was again before Maitland Local Court on a call-up of the stalk or intimidate Bond. It was again reimposed for two years, and he was required to report to Community Corrections within 48 hours of his release from custody.
On 27 July 2016, it would appear that he was released to serve the balance of the ICO on parole.
On 23 November 2016 the State Parole Authority revoked his Intensive Correction Orders for a breach of the conditions and a warrant for his arrest was issued. He served the balance of parole, namely 26 days, following his apprehension on 10 December 2016. He was again released when the sentences of 9 months, which had initially each been directed to be served by way of an ICO, expired on 4 January 2017.
His custody records indicate that he was arrested on 13 March 2017 before being granted bail at Toronto Local Court the same day. Neither his Criminal History, nor his Driving Record, provide any illumination as to the reason for that arrest.
He was next arrested on 18 April 2017 and charged with domestic violence offences including stalk or intimidate and destroying or damaging property. The offences had occurred the previous day, 17 April 2017. He was granted bail and subsequently failed to appear on 9 August 2017.
He was next arrested on 30 August 2017 and charged with dishonestly obtaining property by deception with respect to an offence which had occurred on 3 July 2017.
He was also charged with the contravention of a prohibition or restriction in an Apprehended Domestic Violence Order, such contravention having occurred on 22 August 2017.
He was bail refused until granted bail on 4 September 2017. It would appear that his release to bail required him to appear in the Local Court on 18 September 2017 for the outstanding matters. He failed to appear on that date.
He was again arrested on 19 October 2017. He was refused bail and remained in custody.
He appeared at Newcastle Local Court on 6 November 2017 when he was fined $200 for having failed to appear in breach of his bail. He was fined $500 and placed on an 18-month Good Behaviour Bond pursuant to section 9 with respect to the offence of dishonestly obtaining by deception. He was also given a two-year bond for the contravention of the Domestic Apprehended Violence Order.
However, with respect to the stalk or intimidate domestic violence offence which had occurred on 17 April 2017, he received a term of imprisonment of 7 months to date from 19 October 2017. His non-parole period was 2 months.
He was released to parole on 18 December 2017.
A month later, on 17 January 2018, he was arrested and yet again charged with driving a motor vehicle while disqualified. He was also charged with possessing a shortened firearm, custody of a knife in a public place and a further charge of dishonestly obtaining property by deception.
He remained in custody, initially serving the balance of parole from the 7- month sentence with respect to the domestic violence offence.
On 1 June 2018 at Kempsey Local Court, he was sentenced to 3 months imprisonment for driving whilst disqualified; one month for custody of the knife; 8 months with a 4 month non-parole period for possession of the shortened firearm; and 2 months imprisonment for the dishonest obtaining by deception.
Each of the sentences were directed to be served concurrently and to commence from 17 March 2018.
He was again released to parole on 16 July 2018.
Approximately one week later he was arrested on 22 July 2018 and charged with entering enclosed lands, refusing to comply with a direction, and resisting a Police officer in the execution of duty. He was also charged with contravention of a restriction in an Apprehended Violence Order.
He was released on bail the following day and was fined with respect to those offences at Toronto Local Court on 11 September 2018.
He was again stopped by police on 29 September 2018 for the purpose of a random breath test. He was a disqualified driver at the time. He provided Police details of his brother's name and date of birth. There was an outstanding warrant for the offender's arrest at that time. Some months later his true identity was ascertained and, yet again, he was charged with driving a motor vehicle whilst disqualified. He was also charged with having provided a false name.
On 18 November 2018 he went back into custody as a consequence of the breach of his conditions of parole. He remained in custody until the sentence for the balance of parole expired on 4 December 2018. He was then released.
On 24 December 2018 he was again arrested for driving a motor vehicle whilst disqualified. He again gave police a false name, and on this occasion yet again provided his brother's name and details. He remained in custody, bail refused, until granted bail on 1 March 2019.
Five days later, on 6 March 2019 the offender took his mother's motor vehicle without her consent and in the face of her specific and repeated prohibition. After leaving his mother's premises she contacted police and reported her vehicle stolen.
Some hours later the offender collided heavily with a boat trailer parked on the roadway at Fishing Point, on Lake Macquarie. The force of the impact caused the boat to dislodge from its trailer and come to rest on the roadway.
The owner of the boat and trailer heard the impact and came outside where she spoke with the offender. He provided a false name and date of birth. He phoned his mother to advise her that he had smashed her car and she advised him that she had already contacted the Police.
The offender fled from the scene suffering unknown injuries.
He subsequently returned to his mother's home where Police arrested him the following morning.
The offender told Police that he had driven around aimlessly and that he had fallen asleep before crashing the vehicle. He asked the Police to record in the facts that he told them he had been suffering from mental health issues and was hopeful of receiving assistance through the judicial system.
He was charged with taking and driving a conveyance without the consent of the owner, relating to taking his mother's vehicle without her consent; driving a motor vehicle whilst disqualified; negligent driving; and not giving true or proper particulars to the owner of the damaged property.
In June 2019, his various matters were referred to the Toronto Drug Court. These included the three offences of driving whilst disqualified from September 2018, December 2018 and March 2019. He received indicative sentences of 4 months, 4 months and 12 months with an aggregate term of 16 months imprisonment. The sentence was suspended pursuant to section 7(3) of the Drug Court Act 1998.
With respect to the various offences of stating a false name and address, the offender variously received a section 10A conviction without additional penalty, and fines which were suspended pursuant to the Drug Court Act with respect to two of those offences.
Whilst the record is not completely clear it would appear he was back before the Toronto Drug Court in October 2020 on which occasion it appears that an offence of driving whilst disqualified resulted in a Community Correction Order for a period of 9 months, during which time he was not to use prohibited drugs and was to accept the supervision of Community Corrections.
In December 2020, the offender was issued with a Learner Licence. He received a P1 Provisional Licence on 6 January 2021.
On 7 February 2021, a vehicle being driven by the offender in an easterly direction in the southern breakdown or emergency lane and accordingly against the flow of traffic which was heading west, was recorded on dash-cam footage by an oncoming driver. The offender had only recently become the registered owner of his vehicle.
Approximately an hour and a half later, the same vehicle was being driven by the offender at an unknown speed which was believed to be in excess of the 80km/h speed limit in a westerly direction on Cessnock Road at Ryhope.
Another vehicle containing an adult and two children turned right onto Cessnock Road and also headed in a westerly direction. The vehicle was accelerating up to the speed limit when the accused approached at an unknown speed from behind. As both vehicles travelled on the bridge over the Pacific Motorway, the offender commenced to overtake the other vehicle where the lanes in each opposite direction are separated by a concrete median strip.
As the offender was overtaking the other vehicle, he collided with a break in the concrete median strip, forcing his vehicle to move sharply to the left. His vehicle collided with the driver's side of the other vehicle for the entire length of the other vehicle causing damage to it.
The offender's own vehicle then rebounded onto the concrete median strip where it rolled a number of times before leaving the roadway and colliding with a tree on the southern side of the road.
Police attended the scene and spoke with both drivers. Police subsequently attended on the offender at his home address in March 2021 with respect to the driving which had been filmed when his vehicle was travelling in the emergency lane against the oncoming traffic earlier in the morning of 7 February 2021. The offender claimed not to remember any of the events of the day and was not able to provide details of who else was allegedly driving his vehicle.
He was charged by a future Court Attendance Notice with failing to disclose details of the driver and with driving recklessly, furiously or in a speed or manner dangerous with respect to the collision at Ryhope. He was also charged with negligent driving with respect to the earlier driving in the emergency lane, although that charge was subsequently dropped.
While those matters were pending, the offender was involved in an altercation at the Toronto Hotel in Toronto on 21 July 2021 which required the attendance of Police. When Police arrived they saw the offender driving a Toyota Hilux utility in the car park at the rear of the hotel and into the drive-through of the adjacent bottle shop.
Police observed the offender stop the vehicle and get out of the driver's seat. Police immediately approached him and he was subjected to a roadside breath test which returned a reading of 0.113.
His Provisional Driver Licence was suspended and he was charged with driving with a mid-range PCA.
On 21 October 2021, at the Toronto Local Court he was fined $1,200, disqualified for 3 months and directed thereafter to participate in the Alcohol Interlock Program for a period of 15 months.
However, in March 2022, it would appear that Roads and Maritime Services refused to reissue the offender with a P1 Provisional Licence. He was sent a copy of the Refusal Letter.
In June 2022 he was stopped by Police driving a vehicle which was unregistered. Police checks revealed that he was disqualified from driving at that time. He was charged with driving an unregistered vehicle and driving while disqualified.
In October 2022 at Toronto Local Court, he was fined with respect to driving the unregistered vehicle. With respect to driving whilst disqualified he was placed on a Community Correction Order for 18 months with supervision. He was disqualified for a further period of 10 months from 21 October 2022. He was also fined and directed to perform 120 hours of Community Service work. It is clear that he was subject to that conditional liberty at the time of offending before me.
He was then arrested, as is clear, again driving while disqualified, following the collision involving the death of Mr Langham on 1 December 2022. He has remained in custody since that time.
On 24 March 2023, he was convicted and sentenced in the Local Court to 5 months imprisonment with respect to the offence of driving furiously or in a manner dangerous or speed dangerous arising from the incident at Ryhope when he collided with the vehicle whilst overtaking and then rolled his own vehicle. That sentence was to commence on 24 March 2023. His period of disqualification of 4 years was to be extended by the period of the term of imprisonment.

COMPARATIVE CASES

I am conscious of the reserve which must be entertained when having recourse to the statistics maintained on the Judicial Information Research Service (JIRS).
I am also conscious of the caution which must be exercised in the utilisation of apparently comparative cases which invariably turn on their individual facts and subjective circumstances.
With those factors in mind, I have examined the JIRS statistics and a number of cases which bear some factual similarities to the present matter.
I bear in mind that the guideline judgment of Regina v Whyte [2002] NSWCCA 343 only operates to provide guidance with respect to dangerous driving charges occasioning death, rather than offences which are proceeding as a charge of manslaughter; see N Adams J at [210] in Davidson v R [2022] NSWCCA 153.
However, it is informative to look at some of the outcomes where the offence charged was subject to the lesser maximum penalty applicable to the offence of dangerous driving occasioning death.
Shumack v R [2008] NSWCCA 311 was an appeal from an aggregate sentence of 7 years imprisonment with a non-parole period of 5 years which had been imposed by Conlon DCJ (R v Shumack [2007] NSWDC 254). The first count was of dangerous driving occasioning death carrying a maximum penalty of 10 years. The second count was of failing to stop and assist after a collision occasioning death which also carried a maximum penalty of 10 years.
The offender had driven through a roundabout at an excessive speed over the 50 km/h speed limit. He had a blood alcohol reading of 0.1 and had failed to keep a proper lookout when he hit and killed a 16-year-old girl who was crossing the street.
He was convicted after a jury trial and, accordingly, the sentence passed did not reflect any discount.
The indicative sentences at first instance were 6 years with a non-parole period of 4 years with respect to the dangerous driving causing death and 5 years with a non-parole period of 3 years for failing to stop and assist.
Price J, with whom Hodgson JA and James J agreed, dismissed the appeal against severity. His Honour said that although it was a stern sentence, it was within a permissible sentencing range.
R v Smith, Jarad [2016] NSWCCA 75 was a Crown appeal against the asserted inadequacy of both the indicative sentences and the aggregate sentence passed by Judge McClintock SC with respect to dangerous driving occasioning the deaths of two pedestrians who were struck and killed when the 20-year-old extremely drunk driver fell asleep in his vehicle and then mounted the footpath where the pedestrians were walking. Immediately following the crash, the offender ran away from the scene. He was apprehended nearby and expressed immediate contrition and remorse. The offence of failing to stop and assist was placed on a Form 1 with respect to one of the two separate offences of dangerous driving occasioning death.
The objective criminality was assessed by the sentencing judge as being "high". However, a particularly strong subjective case together with "excellent" prospects of rehabilitation led to indicative sentences of 6 years with respect to each of the deaths which the driving had occasioned.
The sentencing judge accepted that the offender had run away from the scene in part because he was fearful of being assaulted. The criminality was found to be towards the bottom of the range of objective range of seriousness. Having been placed on a Form 1 with respect to the first substantive charge, the indicative sentence for causing that death was increased to 6 years and 3 months.
The aggregate sentence which was imposed was a head sentence of 7 years with a non-parole period of 4 years.
The Crown appeal against inadequacy was dismissed. RA Hulme J (McCallum and Schmidt JJ agreeing) was not persuaded that the sentence was "unreasonable or plainly unjust".
In R v Geagea [2019] NSWDC 345 a motorist killed a pedestrian standing on the road and then drove away from the scene without stopping to render assistance. He avoided the Police for over a week during which time he took active steps to get rid of the vehicle which he had been driving. When arrested he lied to Police and told them his vehicle had been stolen prior to the accident.
He was charged with dangerous driving causing death, an offence carrying a maximum penalty of 10 years imprisonment. He had been driving at approximately 10 km/h over the speed limit of 50 km/h on a suburban street and had not observed the pedestrian standing at the door of his parked vehicle He was also charged with failing to stop and assist after an impact causing death which similarly carried a maximum of 10 years.
After a 10% discount for a late plea with respect to the dangerous driving occasioning death, Colefax DCJ gave an indicative sentence of 4 years and 2 months.
An early plea had been indicated with respect to the failure to stop and render assistance. Following a 25% discount the indicative sentence was 4 years and 1 month.
An aggregate sentence was passed of 6 years and 6 months. A non-parole period was fixed of 4 years and 2 months.
The remaining comparative cases to which I will make reference deal with factual circumstances where the death which has been caused by the manner of driving has resulted in charges of manslaughter carrying the increased maximum penalty of 25 years imprisonment.
Sparke v R [2012] NSWCCA 140 was an appeal against the severity of sentence imposed in the District Court by Syme DCJ of an effective 15 years imprisonment with a non-parole period of 11 years and 3 months. The offender had been sentenced after pleading guilty to two counts of manslaughter following an accident in September 2008, when the applicant drove a stolen vehicle on the incorrect side of the road and collided head-on with another vehicle, killing the driver and the passenger.
The offender was under the influence of methamphetamine and did not hold a driver licence. He was initially pursued by Police over a distance of 2.2 km before the Police discontinued their pursuit and continued to follow the vehicle. The vehicle driven by the offender drove at considerable speeds, up to a speed in excess of 180 km/h.
The offender was aged 23 at the time of the offence, and 25 at the time of sentence. He had a significant criminal record, which included repeated offences involving the taking and driving of motor vehicles whilst unlicensed and also offences of dishonesty, robbery in company and assault occasioning actual bodily harm. He had served periods of full-time imprisonment and had been the recipient of what was described as "every form of custodial and non-custodial supervision." He had long-standing drug abuse issues with a variety of attempts to cease drug use in the past.
On sentence, the first manslaughter count resulted in a head sentence of 13 years and 6 months with a non-parole period of 9 years and 9 months. Two offences of an aggravated break and enter and taking and driving a conveyance were taken into account on a Form 1. The second manslaughter count resulted in a head sentence of 12 years and 6 months with a non-parole period of 8 years and 9 months. The sentences were accumulated by 18 months resulting in the head sentence of 15 years with a non-parole period of 11 years and 3 months.
Aggravating factors identified by the Judge at first instance, Syme DCJ, included the premeditation involved in the taking and driving of a stolen car; not stopping when called upon by Police to do so; a continuation of excessive speed even after the Police stopped the pursuit; the manner of driving; the fact that the offender did not hold a driver licence; the potential danger to other road users compounded by the length of time of use of the vehicle whilst unlicensed and under the influence of illicit drugs; and an extreme level of recklessness.
It should be observed in passing that most of these aggravating circumstances are present in the matter before this Court.
The appeal against severity was dismissed.
R v Winter [2012] NSWCCA 218 was a Crown appeal against the inadequacy of the sentence imposed by the late Judge Toner SC. The factual circumstances involved the driver being under the influence of cannabis and having blacked out whilst driving. Her vehicle mounted the kerb and killed two pedestrians. There was a history of previous episodes of the driver having blacked out and driving with knowledge of the pre-existing medical condition.
At first instance, after a 25% discount for the guilty plea, the indicative sentence with respect to each of the deaths which had been occasioned was 3 years. The aggregate sentence provided for the accumulation of 1 year and accordingly the aggregate head sentence was 4 years imprisonment, with a non-parole period of 2 years.
McLellan CJ at CL set out a review of a number of cases in which an offender was sentenced for manslaughter arising from the use of a motor vehicle which had been set out by R S Hulme J in Woodbridge v R [2010] NSWCCA 185; (2010) 208 A Crim R 503. His Honour concluded that the sentences handed down by Toner DCJ were so disproportionate to the offences committed by the respondent driver as to warrant the intervention of the Court of Criminal Appeal.
Notwithstanding the fact that it was a Crown appeal, the indicative sentences were increased to 7 years with non-parole periods indicated of 4 years and an aggregate sentence of 9 years with a non-parole period of 6 years. Johnson and Garling JJ agreed in those orders.
A case provided to this Court by the Defence was Smith v R [2020] NSWCCA 181. The factual background to that matter was that the offender was driving on Old Bar Road east of Taree when she had a head-on collision with a vehicle being driven in the opposite direction, killing the other driver. She had a Blood Alcohol Concentration in excess of 0.26. The offender had previous convictions for driving with a high-range concentration of alcohol and also a "special concentration of alcohol", respectively approximately 20 years and 3 years prior to the accident.
Following a plea of guilty and a 25% discount, she was sentenced to 9 years imprisonment, with a non-parole period of 6 years and 3 months by Robison DCJ.
An appeal against the severity of the sentence was successful. Simpson AJA found that the sentence imposed was out of line with an established pattern of sentencing for such an offence. Four cases in particular were referred to in support of that conclusion. They were respectively, Woodbridge v R [2010] NSWCCA 185; (2010) 208 A Crim R 503; R v Cameron [2005] NSWCCA 359; (2005) 157 A Crim R 70; R v Cramp [1999] NSWCCA 324; (1999) 110 A Crim R 198; and R v Gordon (No 8) [2017] NSWSC 574.
Simpson AJA, taking into account the outbreak of COVID-19 which had occurred whilst the offender was imprisoned, found the appropriate starting point for the offence was imprisonment for 10 years. A 25% reduction for the prompt plea of guilty reduced the sentence to 7 years and 6 months. A non-parole period was specified of 5 years. Rothman and Bellew JJ agreed with the orders.
Director of Public Prosecutions v Abdulrahman [2021] NSWCCA 114 was a matter that came before the Court of Criminal Appeal pursuant to an appeal by the Crown against an aggregate sentence imposed on the offender for manslaughter and driving while disqualified. The offences arose out of a motor accident when the speeding car driven by the offender while he was affected by drugs, struck and killed a 12-year-old boy. The toxicology report indicated that his driving was particularly under the influence of the effects of methamphetamine. I should observe in passing that methamphetamine and methylamphetamine are the same drug.
Three other restricted substances detected in his blood were also likely to have exacerbated his driving impairment.
ML Williams SC DCJ had imposed an aggregate sentence of 6 years and 10 months with an aggregate non-parole period of 4 years and 6 months (R v Abdulrahman [2020] NSWDC 731). The indicative sentence with respect to the manslaughter, taking into account possession of drug offences on a Form 1, was 6 years and 9 months. The indicative sentence for driving while disqualified was 3 months.
The offender had previously been convicted in October 2018 of driving a motor vehicle under the influence of drugs and resisting a Police officer in the execution of their duty. His vehicle had collided with a traffic sign located on a median strip. He had been placed on a 12-month Intensive Correction Order (ICO) and disqualified from driving for 2 years. Both the ICO and the disqualification were still operative at the date of the subsequent offending.
In September 2019, the offender was observed driving erratically through a school zone at approximately 8:35am, adjacent to Hurstville Public School. The offender drove through a red light at approximately 65 km/h in the 45 km/h zone and struck the 12-year-old who was crossing on a green "Walk" light for pedestrians across a pedestrian crossing.
The offender had criminal antecedents which included previous periods in custody. Beech-Jones J (as his Honour then was), Garling and N Adams JJ agreeing, found that the appropriate starting point for the indicative sentence for the manslaughter was 13 years and 6 months. After allowance for the plea of guilty and some rounding, the appropriate indicative sentence was 10 years and 1 month.
A successful appeal against severity is also to be found in Moananu v R [2022] NSWCCA 85. By majority, Hamill J and Leeming JA agreeing; Price J dissenting, an aggregate sentence of 15 years with a 10 year non-parole period was reduced to 12 years and 6 months with a non-parole period of 8 years and 4 months.
The factual background giving rise to the offences in Moananu were that the offender had been drinking continuously for more than 8 hours at a hotel in St Marys. By the time he left the hotel and drove his vehicle, his blood alcohol level exceeded 0.2g/100ml. The offender subsequently drove erratically and was observed to be driving at excessive speed and tailgating other vehicles. His speeding on the M4 was described as "ridiculous" and "caning it", and his erratic driving continued when he turned off the M4 and onto The Northern Road.
The erratic and dangerous driving had continued over a distance of more than 6 km. As he attempted to overtake another car, his vehicle mounted the concrete median strip, causing it to rotate and become airborne. His vehicle crashed head on into a vehicle being driven by a 17-year-old learner driver with a pregnant mother who was expecting twins and the brother of the driver who was also the husband of the pregnant mother. The 17-year-old driver and the pregnant mother, with both children in-utero, were killed in the collision. The surviving passenger, the driver's brother, and would-be father to the twins who were due the following week, suffered extremely serious injuries.
The offender was 29 years of age at the time of the offence, and 31 at the time of sentence. He had a limited criminal record, which the sentencing judge indicated "entitled him to some leniency." However, he did have a substantial traffic history, which included having his licence suspended and disqualified on various occasions. He did not hold a valid licence at the time of the accident.
The sentencing judge, his Honour Judge Buscombe, assessed the objective gravity of the offences as falling within the upper end of the range of objective seriousness, but falling short of the worst case (R v Moananu [2020] NSWDC 672). The indicative sentences which he imposed were 8 years and 6 months with respect to the manslaughter of the 17 year old driver (Count 1); 9 years with respect to the death of the pregnant mother, taking into account three matters on a Form 1, namely causing bodily harm to another road user, driving without being licensed, and driving with cannabis (THC) present in his blood (Count 2); and an indicative sentence of 4 years and 6 months with respect to the driving under the influence occasioning grievous bodily harm to the surviving passenger (Count 3). Each of those indicative sentences incorporated a 25% discount, reflecting undiscounted starting points of 11 years and 4 months, 12 years, and 6 years.
Hamill J was of the view that the individual indicative sentences were very high. His Honour said: "assuming those sentences were within a legitimate discretionary range, they stretched that range to its limit." His Honour was persuaded that the aggregate sentence was manifestly excessive. Leeming JA had an initial impression that the individual sentences seemed very high. However, after comparing the sentence imposed for single instances of manslaughter, with the indicative sentences on that appeal, his Honour said at [8]: "When that is done, I see no basis for a concluding that any of the indicative sentences would, if it had in fact been imposed, be manifestly excessive. A sentence of 9 years' imprisonment, representing an undiscounted starting point of 12 years imprisonment, for a manslaughter involving the misuse of alcohol killing an entirely innocent road user is not of itself manifestly excessive."
However, in agreeing with the decision of Hamill J with respect to the aggregate sentence, his Honour referred to a number of cases involving the death of more than one victim, as did Hamill J in his judgment.
Price J in his dissenting judgment similarly made reference to other cases. At [46] his Honour said: "using the pattern of past sentencing as a yardstick, I am not persuaded that any of the indicative sentences are manifestly excessive." The indicative sentences were capable of being a guide as to whether error was established with respect to the aggregate sentence. Price J did not share the majority view with respect to the aggregate sentence being excessive.
I am constrained to observe in passing, that there was no mention of THC being present in the blood of that driver in the entirety of the Court of Criminal Appeal judgment.
After the decision in Moananu, the Court of Criminal Appeal dealt with an even larger aggregate sentence in Davidson v R [2022] NSWCCA 153. This was another factual scenario in which the offending driver of a motor vehicle had consumed alcohol, cocaine and ecstasy (MDMA). He subsequently drove his motor vehicle to a liquor store and to a petrol station. His manner of driving was subsequently described as "menacing" and he drove across four lanes of traffic through a red light at one intersection. His speed was estimated in excess of 120 km/h. He lost control of his vehicle on a right-hand bend. His vehicle mounted a kerb and struck seven children from behind, dragging some of them along a cyclone fence, which bordered a golf course. Four of the children were killed almost instantly, the three others were injured, one critically, sustaining a significant brain injury.
The accident was described by Brereton JA at [2] as "catastrophic carnage". The offender was 29 years of age and of prior good character, was immediately remorseful and pleaded guilty at the first opportunity.
With respect to the four counts of manslaughter, the indicative sentence at first instance (per Bennett SC DCJ: R v Davidson [2021] NSWDC 164) was 14 years and 3 months. With respect to one count of aggravated dangerous driving occasioning grievous bodily harm, the indicative sentence was 6 years, and with respect to two counts of causing bodily harm by misconduct in charge of a motor vehicle, the indicative sentence was 16 months for each. The aggregate sentence imposed was 28 years with a non-parole period of 21 years.
Brereton JA and N Adams J concluded that the indicative sentences of 14 years and 3 months, which reflected a reduction from a starting point of 19 years imprisonment subject to the 25% discount, was excessive with respect to the four manslaughter offences. Recognising the particular challenges when applying the totality principle to a single criminal act which causes harm or death to multiple victims, the majority came to the conclusion that the aggregate sentence was manifestly excessive.
By majority the Court proceeded to resentence. The indicative sentences for manslaughter were reduced to 10 years and 6 months; the aggravated dangerous driving causing grievous bodily harm to 5 years and 3 months; and the causing bodily harm by misconduct to 1 year and 1 month. The aggregate sentence was reduced to 20 years with an aggregate non-parole period of 15 years.
Whilst observing that Adamson J dissented as to the outcome of the appeal and would have dismissed it, I should also note that Brereton JA would have imposed different sentences than the orders ultimately made by the Court. His Honour would have substituted sentences of 9 years as the indicatives for the manslaughters and would have imposed an ultimate aggregate sentence of 16 years with an 11-year non-parole period. However, in the circumstances set out at [49] of his Honour's judgment, his Honour withdrew the orders he proposed and agreed with the orders of N Adams J.
A further matter involving vehicular manslaughter and also a number of additional substantive charges, some of which related to the offender's actions immediately after the car crash, is R v Cook [2023] NSWCCA 9. This was a Crown appeal against the asserted inadequacy of an aggregate sentence of 14 years imprisonment with a non-parole period of 9 years, imposed by Judge Priestley SC at Coffs Harbour in May 2022.
Kirk JA described the Judge at first instance as having been faced with "a very difficult sentencing exercise." There were two counts of manslaughter, with offences of fail to stop and render assistance on Form 1 documents for each; reckless inflicting of grievous bodily harm with a failure to stop and render assistance on a Form 1; an aggravated break and enter; a supply methylamphetamine charge with additional offences of supply on a Form 1; a charge of possessing a shortened firearm; and a final count of possession of a loaded firearm in a public place. The offender had been on conditional liberty at the time of the driving offences. There were substantial Bugmy ([2013] HCA 37) considerations arising from the highly dysfunctional childhood of the offender.
The driving offence had occurred in circumstances where the offender had been "ripped off" in a drug deal where had handed over $7,000 but had not received any crystal methamphetamine ('ice') in return. In an attempt to recover his money, he had pursued to vehicle containing the people who had his money at high speed on the Pacific Highway near Grafton. He drove in an intimidatory and predatory manner and came into contact with the other vehicle, causing the driver to lose control in the crash. Two people in the vehicle were killed and another passenger suffered grievous bodily harm. With respect to the manslaughter charges, the Judge at first instance gave indicative sentences of 6 years with respect to each count. His apparent failure to increase the appropriate sentence by reference to the serious matter contained on the Form 1 with respect to each count was the subject of some comment by N Adams J. Her Honour observed at [163] that it was "not apparent that he increased the sentences on the 3 driving matters to reflect the s 52AB offences, as is permitted." Her Honour noted that it was a matter for the discretion of the sentencing judge and observed: "but the s 52AB offences were very serious."
However, her Honour said that despite that observation, that even if she were satisfied that the sentencing judge had erred in the Form 1 procedure, that finding of itself would not render the indicative sentences manifestly inadequate.
The assessment by the sentencing judge that the vehicular manslaughter counts fell within the mid-range was the subject of criticism by the Crown on the appeal. However, the Court of Criminal Appeal held that it was a matter for the exercise of discretion at first instance. N Adams J, with whom Kirk JA and McNaughton J agreed, expressed the view that certain of the indicative sentences were very lenient. However, in the ultimate, the appeal against inadequacy by the Crown was dismissed.

DELIBERATION

Consideration needs to be given to the individual circumstances of the separate offending, including the different types of offences to which the offender has plead guilty.
Offences which have been placed on Form 1 documents need to be taken into account in the determination of an appropriate sentence with respect to the substantive offences to which they respectively attach.
The death of innocent road users as a consequence of the recklessness, dangerous manner of driving, speeding, intoxication or inebriation of drugs or alcohol or both, and as a consequence of a variety of other circumstances, is far too prevalent an offence in our community and in Australian society in general. It requires appropriate consideration to general deterrence.
In this particular matter, the narrative recitation of the offenders past transgressing and his continual and repetitive ignoring of court-imposed sanctions and restrictions on him being permitted to drive a vehicle, requires an increased weight to be given to specific deterrence. It also requires consideration of the matters of retribution and punishment.
Ultimately, however, the principle of totality also requires a careful and nuanced consideration. The fact that there were other victims with completely different crimes committed with respect to them needs to be reflected in the ultimate sentence while at the same time endeavouring to "achieve an appropriate relativity between the totality of the criminality and the totality of the sentences." (see: the remarks of Street CJ regarding the principle of totality in R v Holder (1983) 3 NSWLR 245 at [260]).
I find special circumstances in variation of the statutory ratio as a consequence of this offender requiring extended supervision upon his release.
I propose to proceed by way of an aggregate sentence pursuant to section 53A of the Crimes (Sentencing Procedure) Act 1999.
In that circumstance, I am required to indicate the sentences which would have been imposed for the individual offences were they to have been sentenced separately. The indicative sentences are as follows:
Count 1: Manslaughter: In the interests of transparency I should indicate that an appropriate starting point, before discount and absent the matters on the Form 1 would be a sentence of 14 years. After applying a 25% discount and taking into account the 3 matters on the Form 1, namely the failure to stop and render assistance, driving whilst disqualified and taking and driving a conveyance without the consent of the owner, the appropriate sentence which I indicate, is imprisonment for a period of 12 years.
Count 2: Aggravated break and enter and committing a serious indictable offence therein: after a 25% discount and taking into account the common assault on the Form 1: 3 years imprisonment with an indicative non-parole period of 2 years.
Count 3: Break and enter and commit a serious indictable offence, namely intimidation: after discount an indicative sentence of 18 months.
Count 4: The theft of the car keys from the dwelling house, after discount and taking into account the Form 1 matters of taking and driving a conveyance without the consent of the owner and destroying or damaging property, an indicative sentence of 2 years and 6 months.
There will be an aggregate head sentence of 15 years. I specify a non-parole period of 10 years as the minimum term which must be served before the offender is eligible for release to parole.
The sentence will be backdated to commence on 1 December 2022. The non-parole period will expire on 30 November 2027 and the additional term of 5 years will expire on 30 November 2032 and the additional period will expire on 30 November 2037.
I indicate that while I am aware the offender received fixed term sentence of 5 months for driving whilst disqualified in the Local Court, given the term of this sentence, I intend for that sentence to be totally subsumed.
Disqualification orders are to be imposed upon his release, for a period of 3 years to commence upon his ultimate release on parole.

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: 10 May 2024

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