R v Moananu

The Offender's manner of driving prior to the collision

1. Prior to the collision the Offender was observed by witnesses, two brothers, Dean Bishop and Benjamin Bishop driving erratically along Mamre Road, St Marys then onto the M4. Benjamin Bishop also observed the Offender's vehicle travelling on the Great Western Highway. Mr Bishop observed the Offender weaving in and out of traffic. The Offender was not speeding at that point.
2. Benjamin Bishop observed the Offender to wave his arm out of his vehicle as the Offender drove in and out of lanes on Mamre Road. The Offender failed to indicate for a sufficient period when changing lanes. Instead he tapped the indicator and then immediately changed lanes. The Offender overtook the witness' vehicle on the outside of the left lane on Mamre Road as they turned on to the M4. Despite a red light with no space to come across, the Offender continued and nearly ended up on the footpath. The Offender merged onto the M4 across a solid white line straight through three lanes of traffic and then kept changing back and forth between lanes during which time he nearly collided with a white van. A witness described the Offender's manner of driving on the M4 as 'erratic'. Whilst on the M4 the Offender was observed travelling along the M4 weaving in and out of traffic in excess of the speed limit. Witnesses reported to police observing the Offender's vehicle to be travelling at a "ridiculous speed", "caning it", and " he was flyin".
3. A number of witnesses observed the Offender to be driving on the Northern Road at excessive speed saying, " … the most craziest thing I have ever seen anyone do." A witness, Sandra Williams, was overtaken by the Offender on the Northern Road and observed, "there was nowhere to go because there was a car there…that's when he clipped the median strip."

Point of impact/collision

1. The Offender proceeded along The Northern Road, Orchard Hills through the road works area south of the M4 Motorway. He continued weaving between vehicles at an excessively high speed. His driving immediately prior to the collision was captured by CCTV footage obtained from Penrith Golf Club. The Offender was travelling far in excess of the speed of the other vehicles travelling south. His vehicle weaved in and out of traffic as he attempted to overtake a vehicle on the right hand side but there was no room to do so; as a result his vehicle mounted a concrete dividing median strip. The Offender's vehicle continued at speed through the grassed section of the median strip and rotated in a clockwise direction. The vehicle became airborne as a result.
2. The Offender's vehicle entered the northbound lanes of The Northern Road, careering directly into the path of the vehicle driven by AH. A collision occurred with the front offside portion of the Offender's vehicle colliding with AH's vehicle directly head on.
3. The vehicle driven by AH was immediately pushed backwards up the road, with catastrophic damage occasioned to the front of the vehicle. Both vehicles came to rest approximately 20 metres south of the impact area. The Crown tendered two photographs showing the catastrophic damage to the vehicles as a consequence of the collision.

Injury to Blake Reid

1. At the time of the initial impact, Blake Reid was driving his vehicle north behind AH's vehicle. The rear of AH's vehicle made significant contact with the entire offside of Mr Reid's vehicle. As a result of the collision Mr Reid suffered a cut and swollen lip.
2. A fourth vehicle driven by Natalie Bishar took evasive action by driving on the median strip to avoid a collision, however her vehicle was side swiped by the Offender's vehicle.

Occupants of the Hoang vehicle

1. Due to the impact of the collision AH and Katherine Gordon suffered fatal injuries and died at the scene. Ms Gordon was heavily pregnant with twin boys who died as a result of her death. Bronko Hoang suffered a range of serious head, leg and internal injuries. He was conveyed to Westmead Hospital. I will shortly discuss in greater detail the injuries suffered by the victims.
2. The Offender was trapped in his vehicle for a short time and later conveyed to Westmead Hospital in a serious but stable condition, suffering leg injuries.

Police investigation

1. Officers from the Metropolitan Crash Investigation Unit were called and attended the scene a short time later. Officers from the Forensic Imaging Unit also attended and surveyed the scene.
2. About 7:00 pm on Saturday the 29th of September 2018, investigators attached to the Metropolitan Crash Investigation Unit attended Westmead Hospital. The Offender was formally interviewed. During the interview he made admissions to driving the vehicle at the time of the collision. He was unable to recall the moments before the collision.
3. During the interview, the Offender began to explain his movements prior to the collision which involved drinking at the St Marys Hotel, St Marys. Police during the interview fully explained the details of the collision to the Offender at which time he broke down and began to sob. He said to police "tell the family I'm sorry for what I've done".

Medical evidence in relation to the two deceased, the twin babies and to AH

AH (deceased driver)

1. AH died at the scene of the collision as a result of the injuries she received. Examination by the Forensic Pathologist, Rianie Janse Van Vuuren, revealed multiple injuries to her head and chest, lower abdomen and limbs.

Katherine Gordon (deceased rear passenger pregnant with twin boys)

1. Ms Gordon was a 23 year old woman who was heavily pregnant and also died as a consequence of the injuries she suffered in the collision. Ms Gordon suffered multiple severe injuries to her body, in particular to the abdominal area.

Injuries to the twin boys

1. Post mortem imaging of the two foetuses was performed. The cause of death of one baby boy was a head injury, while the other baby boy most likely died due to complications of uterine avulsion. It was not possible to determine whether either baby had been born alive.

Bronko Hoang

1. Bronko Hoang sustained a number of very significant injuries as a result of the collision:

• A tear in the area of the body where the intestine attaches to the abdominal wall requiring a laparotomy, control of bleeding vessels, and the removal of part of his colon.
• A traumatic brain injury requiring a ventricular drain insertion.
• A fractured base of the first metatarsal requiring a reduction and pinning.
• A reduction in the blood flow to his left upper limb, secondary to left subclavical/auxillary artery dissection which was managed conservatively.
• A left sided pneumothorax which was decompressed at the site of the collision by finger thoracostomy and subsequent insertion of intercostal drains.
• Sixth cranial nerve palsy resulting in diplopia, being impaired perception of images.
• Post traumatic grief requiring counselling.

1. After initial operations and treatment Mr Hoang was reviewed by his colo-rectal surgeon on 21 December 2018. It was ascertained his wounds were healing well and the colostomy was functioning normally. To check the colon proximate to the colostomy and the rectal stump, a colonoscopy was performed on 21 January 2019. Both the colon and rectum were in good condition at that time.
2. On 18 March 2019, further surgical intervention was undertaken to take down the colostomy and re-join the colon. On the 30 March 2019 Mr Hoang suffered abdominal pain as a result of an anastomotic leak, being a leak from the site of the surgery. Mr Hoang was re-admitted to hospital and an emergency laparotomy performed. A pin-hole leak at the anastomotic staple line was noted. There was no peritoneal contamination other than free gas and some inflammatory exudate. The peritoneal cavity was washed out after which Mr Hoang made a good recovery.
3. Another operation was performed on 25 November 2019. Mr Hoang made a good recovery from that surgery. Regular medical review has continued to assess the recovery made by Mr Hoang. There is a possibility of further difficulties associated with the large midline incision which was opened on two occasions plus the site of the colonoscopy and there is potential for hernia formation in the future.

Acquired brain injury

1. I noted earlier that Mr Hoang suffered a Traumatic Brain Injury occasioned in the collision. He has been a client of the Liverpool Brain Injury Unit since January 2019. He was last reviewed on 29 July 2020. He has been assisted in relation to treatment and support to meet his rehabilitation goals, given his circumstances, being a very complex mix of medical and surgical needs, psychological adjustments, cognitive deficits and inefficient communication skills. He has suffered headaches when feeling under pressure, either from work related duties, or unsettling matters in his personal life. He has been prescribed medication to assist him with this.
2. While he is now off his medication the nature of his Traumatic Brain Injury means the headaches may recur and further treatment may be needed in the future.
3. Mr Hoang suffers fluctuating moods associated with his personal grief issues, both due to the injuries to himself, and the loss of his loved ones. He may still experience a lot of adjustment issues, some may be for a very long time. He is being monitored by the Brain Injury Unit to address this and will continue to be monitored in the long term. Mr Hoang continues to suffer some cognitive difficulties. In his last neuropsychological assessment in November 2019, residual difficulties particularly with executive functioning, were noted. He needs a lot of help with planning and problem solving. Mr Hoang has resumed work but not regularly. In the two months June and July 2020 he has been able to work more regularly on a part time basis with the assistance of a vocational therapist. To study or retrain he will require assistance.
4. Mr Hoang continues to demonstrate persistent difficulties arising from cognitive limitations, with intermittent psychological decompensation. The impact of the neurological disabilities, as well as the impact of grief, will result in him being likely to need professional help for the foreseeable future.

Reconstruction report of the collision

1. A reconstruction of the collision was undertaken on 6 May 2019 and a report was prepared by Gavin Lennon. The conclusion was as follows:

• The minimum average speed of the vehicle of the Offender as it travelled between the two selected reference points, with one reference point being located within close proximity to the area of impact was 112 km/h.
• The vehicle speed indicated by the SAS (Sophisticated Airbag Sensor) data correlates with speed calculated using the CCTV footage.

1. Further to this calculation the author noted "the calculation is the average speed over the travel distance and not an instantaneous snap shot of the speed of the vehicle in any particular point over this distance. If the vehicle was at any stage accelerating or decelerating over this distance, the instantaneous speed at some point of the time of travel must have been more than the average speed quoted…the speed of the vehicle at the time the airbag was deployed (assumed to be some milliseconds after the point of impact) was approximately 106.4 km/h."

CCTV obtained from St Marys Hotel on the day of the collision

1. Footage from the CCTV cameras located at the St Marys Hotel show the Offender arrive at about 10:00 am and remain there until about 6:45 pm on Friday the 28th of September 2018. During this time the Offender continuously consumed beer throughout the day. Staff from the hotel confirmed to police that they continued to serve the Offender alcohol whilst he was sitting playing the poker machines. The Offender can be seen consuming alcohol, smoking cigarettes and playing the poker machines. The Offender attended the hotel in the company of a work colleague after they ceased work due to the weather conditions. The work colleague left after a couple of hours and the Offender remained at the hotel thereafter.

Traffic conditions

1. Police obtained raw data from Transport NSW relating to vehicle and pedestrian movements along the roads travelled by the Offender's vehicle.
2. The data related to the period between 6:00 pm and 7:45 pm on the day of the collision. From the raw data provided it is clear that the traffic conditions were medium to heavy. During the time the Offender was driving from the hotel to the site of the collision there were numerous cars on each of the roads travelled and many other road users put at grave risk due to the manner of the Offender's driving

Blood Alcohol Content

1. The Offender's blood was obtained when he was taken to hospital for treatment as a result of the collision. It was determined by Dr Judith Perl, Forensic Pharmacologist, that at the time of the collision the Offender had 0.204 grams of alcohol in 100 ml of blood.

Analysis in relation to illicit drugs

1. Further examination of the Offender's blood for drugs detected that at the time of the collision the Offender had the following items in his blood: 0.001 mg of Delta-9-tetrahydrocannabinol and 0.008 mg of Delta-9-THC acid (Cannabis).
2. The Forensic Pharmacologist Dr Judith Perl opined that as a result of his alcohol consumption, the Offender would have been "very substantially impaired" at the time of driving his vehicle and at the time of the collision.

The Victim Impact Statements

1. Victim impact statements were bravely read to the Court by Ms Perfecta Gordon, the mother of Ms Gordon and a grandmother of the unborn twins and the mother in law of Bronko Hoang, and by Bronko Hoang, the brother of AH, the husband of Ms Gordon, and the father of the unborn twin boys. A victim impact statement was read on behalf of Thi Bach Yen Duong, the mother of Mr Hoang and AH, the mother in law of Ms Gordon and the grandmother of the unborn twins. It is impossible to fully comprehend the devastating impact these offences have had on those persons and their immediate family members. The emotional pain and loss they have suffered is severe and continuing. Their lives have been changed forever. No sentence I can impose in this case can alleviate the pain they have suffered, and will continue to suffer, as a consequence of the Offender's appalling actions that day.

Objective Seriousness

1. In relation to my assessment of the objective seriousness of the two manslaughter offences I note the following observations of Justice Howie, with whom the other members of the Court of Criminal Appeal essentially agreed, from R v Borkowski [2009] NSWCCA 102: [58] Of course the offence of manslaughter is notorious for the range of conduct falling within its scope and hence the width of the sentencing discretion when punishing for that offence. This is no doubt why there is no standard non-parole period prescribed for the offence. However, when sentencing for the offence, like all offences, the court must take into account the maximum penalty prescribed by the legislature. Further in cases of motor manslaughter, in my opinion, the sentence to be imposed must also take into account the fact that there is a structure of offences dealing with the occasioning of death through driving and that manslaughter stands at the very pinnacle of that structure as the most serious offence. In particular the sentence must take into account that there is a less serious offence of causing death by driving under s 52A(2) of the Crimes Act that carries a maximum penalty of imprisonment for 14 years. Of course it does not follow that the sentence for manslaughter must exceed the maximum for the less serious offence or that the sentence for manslaughter is in some way calculated using the maximum sentence for the other offence.
2. Howie J in Borkowski made clear that it is unnecessary to consider whether motor vehicle manslaughter can be characterised as one based on unlawful and dangerous act or by way of gross criminal negligence. It is the particular facts of the killing, not the class of manslaughter, that determines the seriousness of the offending; Borkowski at [49].
3. All cases of manslaughter are objectively serious because they involve the loss of a precious human life. In SBF v R [2009] NSWCCA 231 Justice Johnson, with whom the other members of the Court agreed, said the following in relation to the assessment of the objective seriousness of motor vehicle manslaughter offences: [122] It will be apparent that some of the concepts which may arise for consideration in a case of motor vehicle manslaughter by unlawful and dangerous act or by criminal negligence are not far removed from concepts which arise with respect to, in particular, an offence of aggravated dangerous driving causing death under s.52A(2). The guideline judgments of this Court in R v Jurisic at 231 and R v Whyte at 286 [216]-[220], identified a range of factors which bear upon the objective seriousness of a s.52A offence:
4. In assessing the objective seriousness of the manslaughter offences I have had regard to the range of objective factors identified in the guideline judgments His Honour referred to, keeping firmly in mind, however, that I am considering two manslaughter offences, which attract a far higher maximum penalty. Some of the factors mentioned in the guideline discussed in those cases involve subjective factors, which I have not had regard to when assessing objective seriousness.
5. The Crown submitted that the two manslaughter offences fell "towards the higher end of seriousness but falling short of the worst category of case." Counsel for the Offender submitted that the seriousness of the manslaughter offences falls "closer to the mid range than the high range, and is significantly less serious than the worst case."
6. I am of the opinion that the objective seriousness of the two manslaughter offences falls within the high end of the range of objective seriousness for such offences, but not within the worst category of such cases. My reasons for reaching that conclusion are as follows:
7. The Offender's level of intoxication was very high, 0.204 grams of alcohol in 100ml of blood. That is some four times the legal limit in relation to the consumption of alcohol and driving. The Offender drove himself to the hotel in question, drank over a significant period of time, and must have always intended that he would drive away from the hotel. Given the level of publicity over decades in this State as to the impact of alcohol on driving and the publicity as to the legal limit being 0.5, and that it takes few drinks to reach that level, the Offender's conduct in driving in the circumstances in which he did, amounted to gross irresponsibility and a total disregard towards all users of the road that day. I note that, not surprisingly, Dr Perl considered that as a result of his alcohol consumption the Offender would have been "very substantially impaired" at the time of the driving and collision. I note that he also had cannabis detected in his blood.
8. The Offender's driving significantly exceeded the speed limit. A reconstruction report in relation to the collision calculated, by reference to a point located within close proximity of the collision, that the minimum average speed of the Offender's motor vehicle leading up to that point was 112 km/h. That same report recorded that the speed at the time of the deployment of the airbag in the Offender's vehicle was 106.4 km/h. The sign posted speed at the time was 60 km/h and the road was subject to road works signage. Witnesses described the Offender's vehicle shortly before the collision as travelling at "ridiculous speed".
9. The Offender's manner of driving leading up to and at the time of the collision was erratic, aggressive and grossly negligent given the traffic conditions that prevailed at that time. He was observed by a number of witnesses to be weaving in and out of the traffic, not leaving his indicator on for a sufficient time when changing lanes, went through a red light, changed lanes in a reckless manner almost colliding with a van. It is clear from the agreed facts that there was considerable traffic on the road at the time. He ultimately mounted a concrete median strip, continued through a grassed section and his vehicle became airborne immediately before the collision. Many users of the road at that time were put at grave risk by the Offender's driving. The distance from the hotel where the Offender had been drinking to the point of collision was some 6.4 kilometres.
10. The factors I have just described demonstrate that the Offender had completely abandoned his responsibility to other users of the road. To drive a motor vehicle in his state of intoxication, in such a manner, and over such a distance, and at a time when there were so many other users of the road, meant that it was almost inevitable that a tragedy such as what occurred, would occur. His conduct in doing so was disgracefully irresponsible, and amounted to extremely serious criminal conduct.
11. In relation to the assessment of the objective seriousness of the aggravated dangerous driving occasioning grievous bodily harm offence concerning Mr Hoang, the Crown submitted that the objective seriousness of this offence "may also be appropriately characterised as falling within the high range but approaching the worst case". Counsel for the Offender submitted that the objective seriousness of this offence was within the mid range of objective seriousness and a long way short of the worst case category.
12. I mentioned earlier that the two guideline judgments dealing with dangerous driving causing death and/or grievous bodily harm offences, set out a number of objective factors relevant to an assessment of the objective seriousness of such offences. I have also applied those factors here, and my comments concerning the Offender's level of intoxication, speed, and his manner of driving are equally relevant to my assessment of the objective seriousness of this offence. As I said earlier, there was a complete abandonment of responsibility by the Offender in relation to his driving that day.
13. The additional objective factor to assess here is the extent and nature of the injuries suffered by Mr Hoang. Mr Hoang has suffered very significant and life altering injuries which he will carry with him for the remainder of his life. He continues to recover from an acquired brain injury, and his ability to work has been compromised. He has had a number of surgical interventions in relation to the injuries to his bowel and has had further hospitalisations to deal with complications arising from those injuries. In the collision he lost his wife and his two unborn sons, both of whom were to be born the following week and his sister. His psychological trauma is clearly profound.
14. In my opinion, the objective seriousness of the aggravated dangerous driving causing grievous bodily harm offence is also within the upper end of the range of objective seriousness but does not come within the worst case.
15. In making my assessment of the objective seriousness of the offences I have had regard to the substantial injury and emotional harm caused by the offences; that they were committed without regard for public safety and involved grave risk of death to another in that assessment. I have not separately considered that they constitute aggravating factors under s 21A of the Crimes Sentencing Procedure Act in order to avoid double counting.
16. I note the Crown submitted that the deaths of the unborn twins were not relied upon in the sentencing for the manslaughter offence concerning Ms Gordon; (Crown submissions [15]).

The Offender's Subjective Case

1. In terms of the Offender's subjective case the following reports were tendered: a report from Dr Seamus Dalton, Consultant Physician, dated 8 April 2020; a Sentencing Assessment Report (SAR) dated 17 April 2020; a psychological report from Patrick Sheahan, Forensic Psychologist, dated 20 January 2020; a psychosocial report from Brian Bembrick, Social Worker, dated 20 July 2020; a neuropsychological report from Dr Molly Schafer dated 21 September 2020; a number of testimonials from family and friends; a report dated 9 April 2020 by Dr Andrew Ellis, Forensic Psychiatrist, concerning the Covid 19 Pandemic and the Mental Health Issues for NSW prisoners; two reports on the impact of the Covid 19 Pandemic and NSW prisoners by Professor Tony Butler; Professor Raina MacIntyre, Dr Paul Simpson and Professor Michael Levy from the Kirby Institute dated 16 April and 22 May 2020. The Offender also gave evidence at the sentence proceedings.

Age

1. The Offender's date of birth is 7 May 1989 so he is currently 31 years of age and was 29 as at the time of the offending. While still a relatively young man, he is not what the Criminal Law generally considers to be a young adult Offender.

Criminal History

1. The Offender has very little by way of a criminal history. In 2012 he was convicted and fined and disqualified for an offence of refusing to undergo a breath analysis. In 2016 he was convicted and fined in relation to a damage property offence. His lack of a criminal record, subject to a consideration of his traffic record, entitles him to some leniency in this sentence.

Traffic Record

1. In terms of his traffic record, he obtained his provisional licence in January 2010. On 16 August 2010 his licence was suspended as a consequence of demerit points accrued for infringements of speeding and not displaying his P plates. On 2 August 2011 there was a demerit points refusal of his provisional licence for two infringements being the failure to display his P plates. On 13 April 2012 there was a demerit points suspension of his provisional licence as a consequence of infringements which involved the failure to display his P plates and not complying with the conditions of his licence. On 30 August 2012 he was disqualified from driving for a year for the refusal to submit to a breath test offence which I referred to earlier. On 14 November 2013 he again obtained a provisional licence. On 13 November 2014 his licenced was again suspended as a consequence of infringements of not displaying his P plates. On 9 May 2017 there was a demerit points refusal of his provisional licence due to infringements involving speeding and the failure to display his P plates. On 17 April 2017 he incurred infringements of driving while unlicensed and speeding. At the time of the offences he did not hold a valid licence.
2. His driving history is one which disentitles him to significant leniency given the nature of the offences for which he is to be sentenced.

Family background

1. The SAR records that the Offender came to Australia from New Zealand with his family when he was five years of age. He has two siblings being a sister and a brother.
2. The SAR records that the Offender had a difficult upbringing due to the conduct of his father who had an alcohol problem. At one stage the Offender was removed from the family and placed into foster care for four years. When he was returned to the care of his mother, according to the SAR, he then suffered from violence at the hands of his mother's new partner.
3. The Offender described his upbringing in greater detail to Mr Sheehan. He described to the psychologist a childhood characterised by neglect, uncertainty and exposure to violence. He told the psychologist that his father never worked and would become intoxicated every day, beating his wife and children. The Offender described to Mr Sheehan after a particularly savage beating, his mother left with the children. Subsequently the Offender said that he was returned to his father's custody and he was subjected to persistent violence by his father, and had no contact with his mother for a number of years. His wounds at one stage were detected by teachers at school and he was removed by Family and Community Services at approximately seven years of age and stayed in five or six different foster homes.
4. According to the Offender's account to Mr Sheehan, he was subsequently returned to his mother's care when he was about 10 years of age. His mother had re-partnered to another violent man and she would leave the Offender at home to care for other children while she went out gambling. He described to the psychologist circumstances of neglect, with little food in the home and no supervision, and that he was frequently beaten by his step-father.
5. The Offender described to Mr Sheehan being "kicked out of home" at the age of about 13 to live with his uncle. He developed some stability in his uncle's home and resided there until he was 22 years old when he moved in with his girlfriend. He told Mr Sheehan that he remains in contact with both parents but is ill at ease with them given his history. He has positive contact with a half-sister who remains supportive of him.
6. In Mr Bembrick's report he records that an examination of the Offender's Child Protection File indicates extensive dealings with the Offender's family by DOCS dating from initial contact with the family in 1995 concerning physical abuse allegations and family violence, when the Offender was six years of age. The DOCS files revealed the Offender was removed from his father's care when aged nine years of age due to violence towards the Offender. Mr Bembrick notes that the DOCS files record the Offender having injuries to his arms from being hit with an implement for not knowing a religious verse. The DOCS files also record a threat by the Offender's father to hang him from a tree if he told anyone about his injuries.
7. According to what the Offender told Mr Bembrick, there was an occasion after he was returned to his mother's care, that he, when about 11 years of age, had been responsible for putting the younger children to bed. The Offender's seven month old half-brother suffered a cot death during that night, and the Offender felt responsible for it.
8. The SAR records that he has been in a relationship with his partner for some seven years, although they were estranged as at the time of the offending. The Offender and his partner have had no children together, and the Offender told the author of that report that his partner remains supportive and has maintained contact with him since he has been in custody.
9. The Offender told Mr Sheehan that he has a son aged 8 to an earlier relationship but that his former partner prohibits him from contacting the son.

Education and employment history

1. The SAR records that the Offender left school after completing year 10 and has always been employed. The Offender provided greater detail to Mr Sheehan about his school experiences. He described, in terms of his primary school attendance, his parents keeping him at home in order to hide his bruises from the beatings he had received. He recalled being teased in primary school when he and his brother took food from the school bins due to having no lunch or lunch money. He repeated second and third grade. He attended Mount Druitt High School where his grades were poor and he was occasionally truant.
2. At the time of the offences he told the author of the SAR that he was a bricklayer and prior to that a "steel fixer". The Offender told Mr Sheehan what the psychologist considered was a disjointed and confusing account of his work history reporting employment in a variety of occupations.
3. When he is eventually released from custody he hopes to return to bricklaying.

Substance use

1. The Offender told the author of the SAR that he only drank alcohol socially at weekends "and that he did not believe he had an alcohol problem". That statement, to my mind, suggests he lacks real insight into his obvious difficulties with alcohol and the link between his alcohol consumption and the commission of the offences. The Offender also told the author of the SAR that his alcohol intake as at the time of the offences was high due to problems he was having in his relationship. The Offender told the author of the SAR that at the time of the offending he had been under some financial strain.
2. He also told the author of the SAR that his use of marijuana was minimal.
3. The Offender described to Mr Sheehan problematic use of alcohol from an early age, reporting engaging in weekend binge drinking from approximately 13 years of age which the psychologist considered may be related to both genetic and environmental factors given his upbringing. According to what the Offender told Mr Sheehan, by the age of 20 he would drink a case of full strength beer in a single sitting on a weekend. That during weekdays he would generally consume three longnecks of beer after work. Mr Sheehan also recorded the Offender reporting a problematic history of gambling with poker machines and that he would at times gamble his pay and be unable to meet his financial obligations as a consequence. He reported to the doctor that on the day of the offences he had gambled his entire pay that day with his drinking escalating through the day as his losses mounted.

Physical injuries as a consequence of the collision

1. Dr Dalton in his April report details what is recorded in the Westmead Hospital clinical records concerning the Offender's injuries suffered in the collision. Dr Dalton notes that the Offender was found to have suffered multiple obvious injuries to the lower limbs with a large wound on the medial right calf with visible bone. He also had lacerations to his face and scalp as well as lacerations to his upper limbs, and a seat belt injury to his abdomen. He was found to have a displaced mid femoral fracture on the right and a non-displaced fracture of the corner of the left tibia and fibula head as well as a rupture of the anterior cruciate ligament and a displaced fracture of the tibial plateau as well as an injury to the lateral meniscus. He was discharged to Long Bay Hospital on 15 October 2018 but returned to Westmead to undergo surgical procedures for his injuries on 16 November 2018 and 1 October 2019. As at March 2020 he told Dr Dalton that he was intermittently using crutches and was experiencing pain in the right thigh which tended to build up over the day. He had been receiving physiotherapy while at Long Bay.
2. Dr Dalton records the Offender stating that he experienced occasional retro-orbital headaches which occasionally affect his vision but receives no treatment other than Paracetamol. When seen by Dr Dalton the Offender reported that his left knee was occasionally sore and mildly swollen but that his right thigh was the major source of pain and disability. He also complained of soreness to his left wrist and thumb. He claimed to Dr Dalton that he began to take buprenorphine for pain relief when he was denied Endone upon his release from Long Bay Hospital into the general prison population.
3. Upon examination Dr Dalton found that the Offender's spine and upper limbs were normal and he had good mobility in both hips and there was no evidence of muscle wasting in either lower limb and no evidence of neurological impairment other than minor numbness in relation to surgical scars. There was some moderate tenderness in the area of the left knee, however, the doctor considered the most significant finding was the reported pain in the right mid-thigh on weight bearing and when applying rotational stress to the leg.
4. Dr Dalton considered that the Offender's orthopaedic injuries to his left knee had stabilised, and recorded that the Offender was at risk of developing post-traumatic arthritis in his left knee. His most significant complaint when seen by Dr Dalton related to consistent pain in the right thigh at the site of one of the surgical procedures. The success of that procedure would be assessed upon further x-rays and a review by an orthopaedic specialist. If successful the doctor considered that over time he would suffer little pain upon weight bearing and that pain would eventually resolve.
5. Dr Dalton indicates in his report that the Offender would benefit from a more specific exercise programme targeted to his injuries.
6. Mr Sheehan records in his report that the Offender's pain from his injuries was initially treated with oxycodone and naloxone and later with Panadeine which he considered was inadequate. It was noted he had engaged in a physiotherapy program and at least as at the date of that report, he reported ongoing pain and difficulty in walking. He reported to Mr Bembrick in July of this year that he was still suffering a great deal of pain from his injuries.

Psychological/psychiatric history

1. Mr Sheehan estimated the Offender's intellectual functioning to be within the low-average range although no psychometric testing was administered. When interviewed by the psychologist his affect was primarily flat and dysphoric. The psychologist recorded the Offender reporting that he wished he was dead, but denied any specific suicidal ideation or self-harm behaviour.
2. Mr Sheehan recorded that the Offender denied any history of psychotic illness and did not endorse any symptoms consistent with psychosis. The Offender was noted as reporting persistent intrusive thoughts about the collision, accompanied by intense distress and a belief that he should be dead. Mr Sheehan considered that the nature of the collision and his described symptoms were consistent with Post Traumatic Stress Disorder. Mr Sheehan also considered that the Offender had a diagnosis of Alcohol Use Disorder in sustained remission in a controlled environment.
3. A report was obtained from Dr Schafer on the issue of whether the Offender had impaired cognitive functioning and if so what impact it may have on his ability to engage in rehabilitation while in custody, and on his ability to reintegrate into the community. Dr Shafer reviewed the documentation available from Westmead Hospital and the reports of Mr Sheehan and Dr Dalton which I have already referred to and also conducted an interview with the Offender on 16 September 2020 over a period of five hours.
4. Dr Schafer considered that the Offender's pre-morbid intellectual functioning was estimated to be in the low average range as was his current level of intellectual functioning according to IQ testing. The psychologist considered the IQ result to be one that should be interpreted with caution due to significant and unusual variability among component indices.
5. Dr Schafer considered that, on balance, the Offender suffered a mild traumatic brain injury due to the collision, although at the time of the assessment he did not demonstrate widespread impairment of his cognitive functioning. Dr Schafer considered that the Offender's history of alcohol dependence dating back to his early teens may have had an additional impact on his cognitive functioning. Dr Schafer did not consider that the Offender's cognitive difficulties would pose a barrier to engagement in rehabilitative programs.
6. The SAR records that since his incarceration the Offender has been assisted for his depressed state and sleeplessness by anti-depressant and mood stabilising medication.

Response to supervision

1. Since his incarceration on 30 September 2018 he has incurred a number of institutional infringements including failing a prescribed drug test and according to the SAR, the use of unprescribed buprenorphine. The last prison infringement occurred in March this year.
2. When interviewed by Mr Sheehan earlier this year he acknowledged daily use of buprenorphine. The Offender told Mr Sheehan that he smoked un-prescribed buprenorphine in custody when his pain medications in custody were withdrawn. As at the date of the consultation with Mr Sheehan in January this year, the Offender was using that drug on a daily basis and was considered to be dependent on it.

Attitude to the offence

1. In terms of his attitude to the offences, the Offender voiced remorse when interviewed by the police after the collision. The SAR records the Offender stating that he wished "it was himself that was dead", and that a day does not go past without thinking of the victims, their families and his regret at choosing to drive that day. The author of the SAR records that the Offender showed an appropriate level of insight into the ramifications of his decision to drive that day.
2. Mr Sheehan records the Offender stating that his offences were precipitated by financial strain and that he had felt financially overburdened. That he had gone to the hotel that day in order to win money on the poker machines and began to drink when he was losing, and that he spent all of his pay that day on drinking and playing the poker machines. Mr Sheehan considered that the Offender did appear to grasp the enormity of his offences and their consequences for others. Mr Bembrick also recorded statements of remorse by the Offender.
3. The Offender gave evidence before me of his regret and remorse for driving that day. I am satisfied that his regret and remorse is genuine, and that he will have to bear the enormity of the consequences of what he has done for the rest of his life.

The future and risk of re-offending

1. The SAR recorded that the author of that report considered the Offender had a medium to low risk of re-offending.

The testimonials

1. The testimonials that are before me highlight and confirm the difficult early life experienced by the Offender, the fact that he was considered to be a hardworking person, and the evident remorse he has for the offences and loss of life he has caused.

The Offender's evidence

1. The Offender gave evidence before me and in doing so generally confirmed the accuracy and truthfulness of the things he had told the various report writers, including the difficult circumstances surrounding his early life and growing up. In the course of giving evidence, he described the events of the day of the offences up until he made the decision to drive, claiming to have no memory of getting into the car and driving from the hotel. His evidence was essentially that due to facing financial pressure, he went to the hotel that day to gamble on the poker machines in an attempt to win more money to alleviate his financial difficulties. He gave evidence that as he began to lose money, he began to drink and continued to drink throughout the day. The Offender described being a person who, prior to the collision, would not seek help from other persons to deal with his alcohol and gambling problems, but said he would in the future.
2. In terms of his remorse, he gave evidence consistent with what is contained in the reports that are before me, that he wishes that he had died in the collision, and of his regret for what has occurred. He described thinking about what occurred every day and night. In his evidence he said he would never drink again.
3. In his evidence he also described the injuries he suffered in the collision and the continuing pain he has experienced when walking. He also explained that he had turned to using non-prescribed buprenorphine in prison due to what he considered was Corrective Services' refusal to provide him with adequate pain medication. The Offender gave evidence that he sought that drug from other inmates and was aware that he should not have done so.
4. The Offender gave evidence that when first held in custody he received regular contact visits from family members, but since about mid-March this year, due to the Covid 19 Pandemic, he has received no in person visits, and does not know when that situation will change. His evidence was that he has essentially been held at Long Bay Gaol as he needed access to the hospital, and there have been no drug and alcohol programs available for him to engage in.
5. In his evidence in cross-examination he was taken to the content of a testimonial from his sister where she recounts a conversation with the Offender in which, when he was in his early twenties, he had given her advice about not consuming alcohol and the effects that can have on a person. He accepted that he had not followed his own advice in that regard.
6. I found the Offender generally to be an acceptable witness, noting that much of his evidence was confirmed by material contained in the documentary evidence that is before me.

The relevance of the Victim Impact Statements

1. The Crown in its submissions did not contend that the objective gravity of the offences was aggravated because of the consequences of the deaths of Ms Gordon and AH; [24] of the Crown's written submissions. The Crown argued, however, that I should have regard to the Victim Impact Statements under s 30E(3) of the Crimes Sentencing Procedure Act on the basis that the harmful impact on the family from the deaths of Ms Gordon and AH, is an aspect of harm done to the community. It was submitted that the offences have caused substantial harm to the community, and in that regard they impact on the sentence to be imposed.
2. The catastrophic nature of what has occurred here, and the number of family members deeply impacted by what has occurred, in particular, the killing of Ms Gordon which resulted in the death of two unborn boys who were a week away from being delivered, is totally devastating for all members of the Hoang and Gordon families. The impact of the death of Ms Gordon and AH is vividly described in the Victim Impact Statements. I consider that in the particular circumstances here, that the deaths of Ms Gordon and AH are an aspect of harm done to the community.
3. I express my condolences to the family members on behalf of the Court for their terrible loss, recognising that no words can be of any real comfort in these circumstances.

Taking into account the offences on the form 1

1. The only offence on the form 1 that I consider impacts upon the sentence to be imposed in relation to the manslaughter offence concerning Ms Gordon is the offence of misconduct by driving on the wrong side of the road causing bodily injury to Blake Reid. That has a limited impact upon the sentence I will impose on the Offender for this offence, given it involves an injury to another person as a consequence of the Offender's driving that day. I have had regard to the fact the Offender was unlicenced at the time, and the finding of traces of cannabis in his blood in my assessment of the objective seriousness of the primary offences.

The relevance of sentencing during the Covid 19 Pandemic

1. I am sentencing the Offender during the course of the Covid 19 Pandemic which has had an impact on how we all live our lives. As I understand it, there is, fortunately, no evidence that an inmate within the NSW prison population has contracted Covid 19. The expert reports before me acknowledge that there remains the risk of the disease entering the prison population and the undoubted difficulties that will cause should that come to pass. I also understand that since about mid-March of this year no prisoner has received an in person visit from a family member, and it is unknown when such visits will resume. The expert reports before me, unsurprisingly, suggest that the lack of visits and other restrictions such as the lack of rehabilitation services within the prison system due to the pandemic, are likely to have a deleterious effect upon the mental health of prisoners. I have had regard to the fact the Offender will be sentenced during the pandemic in arriving at the appropriate sentence to impose.

The relevance of the Offender's early life of social disadvantage

1. The evidence satisfies me that the Offender had an early life of very considerable deprivation and social disadvantage. He was exposed to excessive alcohol use and domestic violence from a very young age.
2. The relevance of social deprivation and social disadvantage to sentencing was explained by the High Court in Bugmy v R (2013) 249 CLR 571. Their Honours said in that judgment: The circumstance that an Offender has been raised in a community surrounded by alcohol abuse and violence may mitigate the sentence because his or her moral culpability is likely to be less than the culpability of an Offender whose formative years have not been marred in that way…………………………………. The experience of growing up in an environment surrounded by alcohol abuse and violence may leave its mark on a person throughout life. Among other things, a background of that kind may compromise the person's capacity to mature and to learn from experience. It is a feature of the person's make-up and remains relevant to the determination of the appropriate sentence, notwithstanding that the person has a long history of offending. (See [40] -[43])
3. I have had regard to those principles in fixing sentence here. To some degree the Offender's deprived upbringing reduces the moral culpability of the Offender because he was not given the skills in the early stages of his life to allow him to make appropriate judgments in his conduct later in life. Even allowing for the Offender's disadvantaged upbringing, I consider that there is still a significant level of moral culpability associated with the offending.

Discount for the pleas of guilty

1. The Offender entered pleas of guilty in the Local Court and I will allow him a 25% discount of his sentence for the utilitarian value of his plea.

Remorse finding

1. Having heard from the Offender, and having regard to the expressions of remorse he has made to the report writers and friends and family, I am satisfied that he has genuine remorse and regret for the serious offences he has committed. I am also satisfied that he has considerable insight into the consequences of his appalling actions that day, and how he has destroyed a number of lives through his conduct.

Prospects for rehabilitation and likelihood of re-offending

1. His lack of any significant criminal history, his past history of employment, the assessment in the SAR that he has a medium to low risk of re-offending and the fact he will serve a significant non-parole period before being eligible to re-enter the community, satisfies me that he has reasonable prospects for rehabilitation. I am not able on the current material to make a finding that he is unlikely to re-offend. Much will depend upon his ability to resist the temptation of alcohol when he is eventually released into the community. Comments made to some of the report writers suggest that at present he lacks some insight into the difficulties he has with alcohol.

The issue of special circumstances when fixing the non-parole period

1. This will be the Offender's first time serving a custodial sentence. His injuries from the collision are such that he is likely to find his time in custody more difficult than those inmates who do not have such physical injuries. I am, as I noted earlier, sentencing him during the Covid 19 Pandemic where there is a reduction in in person contact visits and other services to prisoners. I also consider that when released to parole he is likely to require considerable assistance to deal with his alcohol problem, although while in custody it is in remission. For all of those reasons I propose to find special circumstances when fixing the non-parole period and provide for a longer period on parole.

Appropriate date on which to commence the sentence

1. He has been in custody since 29 September 2018 and I will commence the sentence from that date in order to properly take into account the pre-sentence custody.

Accumulation and concurrency

1. I will utilise the aggregate sentencing provisions when imposing sentence. Had I not done so, my approach to accumulation would have been as follows:
2. Two young lives were lost as a result of the Offender's disgraceful and appalling conduct on the day of the offences. Another life was severely adversely affected. While there was only one episode of driving involved, given the number of specific victims of the offences, the criminality of one offence does not encompass the criminality involved in the three offences, and cannot be properly reflected if fully concurrent sentences are imposed. There should be some reasonable level of accumulation of the sentences given the number of victims involved.

The relevance of the guideline when imposing sentence for the aggravated dangerous driving offence

1. I have considered the guideline in relation to sentencing for such offences as set out in R v Whyte [2002] 55 NSWLR 252. The offence here is far more serious than the typical case referred to in the setting of the guideline. This is particularly so when the level of intoxication, the degree of speed, the distance travelled, and the nature of the aggressive and erratic driving. For those reasons I consider it is appropriate to impose a sentence considerably greater than the guideline, bearing in mind the limitations of the use of a guideline contained within a guideline judgment.

Other general principles

1. I have considered the table and folder of cases provided by the parties during the sentence proceedings. No two cases are ever the same, but I have obtained some assistance in the task of assessing the level of objective seriousness of the offences, and the ultimate sentence to be imposed from a consideration of those cases. It was not suggested in submissions, and I do not consider, that the cases establish any sort of range of sentence for the offences committed here. As always, sentencing remains a task involving instinctive synthesis within the confines of accepted legal principles.
2. I have had regard to the objectives of sentencing referred to in s 3A of the Crimes Sentencing Procedure Act which include the need to impose adequate punishment, general and specific deterrence; protection of the community; denouncing the Offender's conduct; recognize the harm done to the victim/s and the community and rehabilitation of the Offender.
3. Nearly every member of our community is a road user in some capacity, whether as a driver, passenger or pedestrian. The majority of our community are drivers. People are entitled to use our roads without the risk of having someone drive in the condition the Offender was in, and in the manner he drove, on the day of the offences. The senseless road toll in this State remains at far too high a level, and alcohol and speed play a significant role in the level of deaths and serious injuries that occur on our roads. The need to condemn and denounce the type of conduct involved in these offences by way of the imposition of a significant sentence is high, in order to properly reflect general deterrence, i.e., to send the message to the community that such disgraceful and appalling conduct will be met with very significant punishment. It is necessary to impose a sentence of sufficient severity in order not only to deter this Offender from engaging in such conduct in the future, but to deter other members of our community
4. The maximum penalties have been taken into account as legislative guideposts in determining the appropriate sentence to impose.

The Sentence

1. I mentioned earlier I will use the aggregate sentencing provisions. I will firstly record the indicative sentences for each offence. In determining the indicative sentences and fixing the aggregate sentence, I have had regard to all of the objective and subjective factors I referred to earlier.
2. The sentences Mr Moananu will hear me first announce are what are called indicative sentences. I will then announce an aggregate sentence which is the sentence and non-parole period that he will serve. It is not arrived at by simply adding up all of the indicative sentences. When announcing the aggregate sentence I will specify the date it starts from, the date it ends and the date when Mr Moananu is first eligible for parole.
3. The indicative sentence for the offence of the manslaughter of AH which I record is one of 8 ½ years imprisonment.
4. The indicative sentence for the offence of the manslaughter of Ms Gordon, having regard to the offences on the form 1, which I record, is one of 9 years imprisonment.
5. The indicative sentence for the offence of aggravated dangerous driving occasioning grievous bodily harm to Mr Hoang which I record is one of 4 ½ years imprisonment.
6. I impose an aggregate sentence of 15 years imprisonment with an aggregate non parole period of 10 years imprisonment. It commences on 29 September 2018 and expires on 28 September 2033. The non-parole period expires on 28 September 2028.
7. The earliest date Mr Moananu is eligible to be released to parole is the date of the expiry of the non-parole period which is 28 September 2028. Whether he is in fact released to parole that day is a matter for the State Parole Authority which will no doubt take account of his behaviour in prison in determining whether he is to be released then or on another date.
8. I impose on each offence the mandatory three years period of licence disqualification which will not commence to run under the legislation until the Offender is released from custody.
9. The offences on the s 166 certificate are withdrawn and dismissed.

Orders 1. The Offender is convicted of the offences to which he pleaded guilty. 2. Taking into account the 25% discount for an early guilty plea, record an indicative sentence of 8 ½ years imprisonment for the offence of manslaughter of AH. 3. Taking into account the 25% discount for an early guilty plea and the offences on the form 1, record an indicative sentence of 9 years imprisonment for the offence of manslaughter of Ms Gordon. 4. Taking into account the 25% discount for an early guilty plea, record an indicative sentence of 4 ½ years for the offence of aggravated dangerous driving occasioning grievous bodily harm to Mr Hoang. 5. Impose an aggregate sentence of 15 years imprisonment with an aggregate non-parole period of 10 years imprisonment. The sentence commences on 29 September 2018 and expires on 28 September 2033. The non-parole period expires on 28 September 2028 6. Impose the mandatory three year licence disqualification period on each of the three offences. The disqualification periods are to commence when the Offender is released from custody. 7. The offences on the s 166 Certificate are withdrawn and dismissed.

Amendments 06 November 2020 - Amended to give effect to s 15A of the Children (Criminal Proceedings) Act 1987 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: 06 November 2020