R v Pullen

Count 2

1. After the collision, Mr Pullen exited the driver's side window and attempted to run from the scene. He was stopped by the road workers who restrained him until police arrived. When the police arrived, the road workers released Mr Pullen. He again attempted to run away but was quickly apprehended by the police.

The remarks on sentence

1. The following extracts from her Honour's remarks on sentence are relevant to the present appeal.
2. Her Honour considered the guideline judgment in R v Whyte (2002) 55 NSWLR 252; [2002] NSWCCA 343 at [229], which provides that for the typical case "[w]here an offender's moral culpability is high a full time custodial head sentence of less than … two years (in the case of grievous bodily harm) would not generally be appropriate". Spigelman CJ at [204] identified the characteristics of the typical case as follows: "(i) Young offender. (ii) Of good character with no or limited prior convictions. (iii) Death or permanent injury to a single person. (iv) The victim is a stranger. (v) No or limited injury to the driver or the driver's intimates. (vi) Genuine remorse. (vii) Plea of guilty of limited utilitarian value."
3. Her Honour considered the typical case in relation to Mr Pullen and said the following: "In relation to the offender, he is young being 23 years of age as at the date of the offence. He has limited prior convictions. The injury was to a single person, the victim was not a stranger but rather his friend. The offender suffered limited injury during the collision. I am satisfied he has genuine remorse and the plea of guilty was at the earliest opportunity".
4. Her Honour then considered the aggravating factors set out in R v Whyte at [216]-[217], which are as follows: "(i) Extent and nature of the injuries inflicted; (ii) Number of people put at risk; (iii) Degree of speed; (iv) Degree of intoxication or of substance abuse; (v) Erratic or aggressive driving; (vi) Competitive driving or showing off; (vii) Length of the journey during which others were exposed to risk; (viii) Ignoring of warnings; (ix) Escaping police pursuit; (x) Degree of sleep deprivation; (xi) Failing to stop."
5. In this respect, her Honour said, "[i]n the matter before me the Crown submitted that there were two aggravating features present, namely, the degree of speed and the degree of intoxication or of substance abuse". It is evident, however, that her Honour also took into account, as an aggravating factor, the number of people put at risk, namely Mr McKay and the other road workers who were present at the time of the collision, and the warnings Mr Pullen ignored.
6. Her Honour determined that Mr Pullen's offending in respect of count 1 fell between the "middle and high range of moral culpability". In reaching this conclusion, her Honour had regard to the following: 1. The relatively short length of the journey. Mr Feros' home was 1.8km from the tavern. At the time of the collision, they were on their way back to the tavern from Mr Feros' home. 2. The injuries suffered by Mr Feros, which were characterised as low to moderate. 3. The speed at which Mr Pullen was driving. In this respect, her Honour accepted that Mr Pullen was driving over the speed limit but noted there was no further evidence before her as to the actual speed. 4. Mr Pullen was under the influence of both alcohol and cannabis. 5. Mr Pullen's driving created a serious risk to the road workers that were present at the time of the collision.
7. In respect of the objective seriousness of count 2, her Honour said the following: "In assessing the objective seriousness of this offence I have taken into account that the offender fled immediately but was apprehended a short distance away. I regard this offending as well below the mid-level of objective seriousness".
8. Her Honour then dealt with Mr Pullen's subjective circumstances. Mr Pullen was 23 years old at the time of the commission of the offence and 25 years old at the time of sentence. He has a limited criminal history dating back to 2014, which includes offences for drive whilst licence suspended and drive with mid-range PCA as well as a number of fines, including a fine for speeding by more than 20km/h but less than 30km/h. Her Honour noted that Mr Pullen's criminal history "disentitle[d] him to any leniency on sentence that would ordinarily be available to a first time offender".
9. Her Honour then detailed Mr Pullen's background as follows: "The offender is the youngest of three boys. He has a mild deformity by way of only two digits on his left hand and as a result of this reported that he was teased as a child. His father became ill when he was eight and a half years old. By the time the offender was 16 years old his father could not walk. His mother left his father during the formative years and he and his two brothers were left in his father's care. His father was unwell for many years with multiple medical problems. He had repeated cardiac events requiring hospitalisation, stents and a defibrillator. The offender's father passed away in 2015. The offender was his father's main care giver for approximately 18 months prior to his death. After his father's death the offender experienced suicidal ideation and reported using drugs and alcohol for approximately six months to cope. His then girlfriend supported him to cease this coping method. … The offender completed school until Year 10, he was on Government benefits before obtaining his current fulltime employment as a renderer with a company on the Central Coast. He has been employed with Urban Texture Coatings and Rendering since 21 November 2016 when he was 23 years old. He is well regarded by his employer, Christian French, who considers him a valuable team member and a 'young man with the potential for a bright future'. His employer was in court to support the offender during sentence proceedings. This is the first job that the offender has had since leaving school. He secured this position approximately five weeks after the commission of the offences for which he is now being sentenced. The offender is estranged from his mother and has a limited family support network. He currently resides with his grandparents."
10. In respect of Mr Pullen's evidence at the sentencing proceedings, her Honour said the following: "He told the court that he was currently living with his grandparents. His current job was the first real job since school. Before his current employment he was caring for his father. After his father's death he said he self-medicated with alcohol and drugs. He indicated in evidence that he had not taken drugs since the offence and is no longer drinking. He was 'not sure' why he had driven. He said, 'I just did the wrong thing'. He was sorry that he had hurt his mate. He was not sure why he ran from the scene of the accident. He said he 'was just scared'."
11. Her Honour then referred to the observations of Dr Philip Olgers (Mr Pullen's general practitioner) who reported that Mr Pullen suffered from depression and anxiety. He said that Mr Pullen had "turned to alcohol and marijuana and was not working and fell into a negative spiral and was deeply depressed". Her Honour noted that since these offences, Mr Pullen had admitted himself to a three day detoxification program and had commenced psychological counselling. In the initial assessment, he scored in the moderate range for depression, extremely severe range for anxiety, severe range for stress and severe range for post-traumatic stress disorder. These scores significantly improved after five sessions of counselling.
12. Her Honour had regard to the pre-sentence report prepared by Nora Tavitan, a Community Corrections Officer, who assessed Mr Pullen as having a low to medium risk of reoffending. The report noted that Mr Pullen would benefit from a period of supervision by Community Corrections to monitor his engagement with his psychologists, for possible referral to relapse prevention programs and for the delivery of Practice Guide Intervention exercises during interview.
13. Her Honour accepted that Mr Pullen expressed genuine remorse for his conduct and assessed his prospects of rehabilitation as "excellent" and his likelihood of reoffending as "highly unlikely".
14. Her Honour determined that this was an appropriate matter to be dealt with by way of an ICO. In making that determination, her Honour said this: "In circumstances where the sentence is less than two years, I am required to consider whether it is appropriate that it be served by way of an intensive correction order. In determining that question, I have taken into account that whilst an intensive correction order does reflect a substantial degree of leniency, it is still an order that involves substantial punishment but can in an appropriate case meet the objects of sentencing. As was pointed out in R v Bates [2011] NSWSC 143 by Button J [sic - R v Bateson [2011] NSWSC 643 by Buddin J], and also in R v Whelan [2012] NSWCCA 147 an intensive correction order can substantially contribute to the punishment of the offender including where condign punishment is warranted. It is intended to be, and ordinarily will be, burdensome. The conditions are onerous and any breaches are likely to have dire consequences. It will intrude into an offender's life requiring services to the community on an unpaid basis and it is an appropriate adjunct to rehabilitation and is a measure designed to provide a severe punishment just short of imprisonment but more severe than a community based order. Having given anxious consideration to the matter and having carefully reflected upon the objective seriousness and the subjective circumstances, I have determined that this is an appropriate matter to refer for an intensive correction order assessment in the community having regard to the following matters: 1. The youth of the offender. 2. The offender has accepted responsibility for his conduct and is very unlikely to reoffend. 3. The offender is in fulltime employment for the first time in his adult life and has taken significant steps towards rehabilitation by engaging in counselling and abstaining from drug and alcohol consumption. 4. I am satisfied that the protection of the community from any further offending will be more likely to be achieved if the offender can continue on his current path towards rehabilitation."
15. The proceedings were stood over to 24 August 2018, when an ICO assessment report dated 21 August 2018 prepared by Marko Prso was provided to the Court. In light of that report, her Honour imposed the sentence referred to at [3] above.
16. The ICO was subject only to the mandatory conditions under cl 186 of the Crimes (Administration of Sentences) Regulation 2014 as it then existed.

General principles applicable to Crown sentence appeals

1. The general principles applicable to Crown appeals were outlined in R v Barker [2016] NSWCCA 193 at [52]-[53], [55]: "[52] Crown appeals pursuant to s 5D of the Criminal Appeal Act 1912 must be brought for the primary purpose of this Court providing governance and guidance to sentencing courts. That requirement operates as a 'limiting purpose' for such appeals and, by contrast with the Court's jurisdiction in sentence appeals brought by offenders, so circumscribes the jurisdiction of this Court on Crown appeal as to prevent intervention (other than on the ground that the sentence is 'plainly unjust' by reason of its manifest inadequacy) for the mere 'correction of error in the individual sentencing proceedings': Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462; R v Tuala [2015] NSWCCA 8). [53] Accordingly, in a s 5D Crown appeal which asserts some errors of sentencing principle (apart from the ground that the sentence is "plainly unjust") the Crown must: (i) Establish the existence of error(s) by the sentencing judge within one or more of the first four categories referred to in House v R [1936] HCA 40; 55 CLR 499 at 505 (R v Tuala at [99]); (ii) Identify the sentencing principle which is engaged by such errors: (R v Tuala at [99]); (iii) Establish that the sentence under appeal is manifestly inadequate: (Regina v Janceski per Hunt AJA at [25] with whom Spigelman CJ and Howie J agreed). … [55] Crown appeals pursuant to s 5D might also be brought for the purpose of this Court providing governance and guidance to sentencing courts where the sentence under appeal is so manifestly inadequate that it is 'plainly unjust' and is thereby likely to undermine public confidence in the proper administration of criminal justice in the sentencing of offenders: (Bugmy v The Queen [2013] HCA 37; 249 CLR 571 at [24]). Such appeals involve the fifth category of error referred to in House v R."
2. These principles have been cited with approval in a number of decisions of this Court, most recently in R v Phelps; R v Zalapa [2018] NSWCCA 191 at [50].
3. The principles that apply to a claim of manifest inadequacy are well settled. The Crown is required to establish that the sentence imposed was unreasonable or plainly unjust: Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6]; Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 at [24]. However, appellate intervention is not justified simply because the sentence imposed is markedly different from other sentences that have been imposed in other cases. It is only warranted where the "difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons": Hili v the Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [59]; Wong v the Queen (2001) 207 CLR 584; [2001] HCA 64 at [58].
4. Manifest inadequacy is a conclusion and does not require the Crown to identify a specific error: Dinsdale v The Queen at [6]. However, as Adamson J observed in Harris v R [2015] NSWCCA 81 at [46], the identification of a specific error may help to explain why a sentence is manifestly inadequate.
5. Similarly, while the indicative sentences themselves are not amenable to appeal, they are a useful guide for determining whether the aggregate sentence is manifestly inadequate: JM v R (2014) 246 A Crim R 528; [2014] NSWCCA 297 at [40].

Consideration

1. The Crown contends that the indicative sentences for each offence failed adequately to reflect the objective criminality of the offending as well as the need for denunciation and general and specific deterrence. This led to an aggregate sentence that is said to be manifestly inadequate.
2. Mr Pullen, on the other hand, contends that her Honour took a "deliberate, considered and reasoned approach to the sentencing task" which took into account all relevant considerations. He also emphasises his compelling subjective case and suggests that there are two factors which place him in a distinctly different category from other young people with a history of driving offences being sentenced for similar offences. First, he relies upon his father's ill health and subsequent death. He contends that his alcohol and drug abuse, which followed his father's death, needs to be viewed in light of him being a young man without parental support who "didn't really handle [his father's death] well". Secondly, he has taken significant steps towards rehabilitation in that he has obtained stable full-time employment and has sought counselling for his alcohol and drug issues.

Dangerous driving occasioning grievous bodily harm

1. In respect of Count 1, the Crown relied heavily upon the guideline judgment in R v Whyte. As her Honour acknowledged, the guideline is not intended to be prescriptive: R v Whyte at [113]. It represents a "useful statement of principle to assist trial judges to ensure consistency of sentencing with respect to particular kinds of offences": see, eg, Legge v R [2007] NSWCCA 244 at [40]; R v Jurisic (1998) 45 NSWLR 209 at 220.
2. Guidelines are, however, more significant in relation to offences such as dangerous driving, which tend to produce inconsistent sentencing outcomes. This was acknowledged by Spigelman CJ in R v Whyte at [145]: "[145] In my opinion, the numerical guideline contained in R v Jurisic has proven to be significant in ensuring both the adequacy of sentences and consistency in sentencing for this offence in New South Wales. If the numerical guideline were removed then the pattern of inadequacy and inconsistency would, in my opinion, quickly re-emerge. Section 52A of the Crimes Act 1900 is an offence particularly likely to be affected by personal sentencing philosophy resulting in a wide divergence of outcomes. Some sentencing judges find it very difficult to accept that a person of good character who is unlikely to re-offend should be sent to gaol. However, Parliament has made it quite clear that the injuries occasioned by driving dangerously and, no doubt, the prevalence of the offence, require condign punishment." (emphasis added).
3. The indicative sentence for Count 1 is below the numerical guideline provided in R v Whyte. It is also at the low end of the sentences imposed by higher courts for this offence.
4. Mr Pullen places significant emphasis upon his subjective circumstances. However, the typical case in R v Whyte already takes into account a number of subjective features, including that the offender is young and is of good character with no or limited prior convictions, has expressed genuine remorse and has entered a late guilty plea. Inherent in these characteristics is a strong prospect of rehabilitation. Accordingly, while Mr Pullen's subjective case is entitled to be given considerable weight, it does little to demonstrate that the sentence imposed by her Honour in respect of this offence is appropriate, particularly having regard to the considerations in R v Whyte.
5. In my view, the indicative sentence for Count 1 does not adequately reflect the objective seriousness of the offending, nor does it give sufficient weight to the need for general deterrence or denunciation. This is particularly so in light of her Honour's finding that Mr Pullen's conduct was "particularly reprehensible". Mr Pullen's subjective case, although compelling, does not warrant the degree of leniency afforded to him. This is particularly so for offences of this nature where the need for general deterrence tends to outweigh considerations of remorse or rehabilitation. In this respect, the comments of Wilson J in R v Manok [2017] NSWCCA 232 at [78]-[79] (which were considered by the sentencing judge) are apposite: "[78] In sentencing for offences of dangerous driving occasioning death or grievous bodily harm, the need for strong denunciation and general deterrence has always been recognised as very important. Indeed, the primacy of general deterrence is such that, ordinarily, it outweighs the remorse or rehabilitation of an offender: R v Paul Musumeci (Court of Criminal Appeal (NSW), 30 October 1997, unrep) per Hunt CJ at CL. [79] That is because of the prevalence of the activity of driving, and the terrible consequences that can flow from a failure by a driver in the management of a motor vehicle. Almost every adult in our community drives; any driver can commit an offence of dangerous driving, manifesting in death or severe injury. It is important that all drivers be deterred from driving dangerously by the sentences imposed on those who transgress."

Fail to stop and assist

1. In respect of Count 2, the Crown contends that the sentencing judge's finding that the objective seriousness of the offending was "well below the mid-level" discloses error. The Crown contends that this error "led to an indicative sentence for that offence which is manifestly inadequate" and therefore helps to explain why the aggregate sentence imposed is manifestly inadequate.
2. The assessment of the objective seriousness of an offence is a discretionary exercise that is only reviewable on the principles identified in House v The King (1936) 55 CLR 499; [1936] HCA 40 at 505: Mulato v R [2006] NSWCCA 282 at [37], [46].
3. The Crown contends, and I accept, that her Honour erred by failing to take into account a material consideration, namely whether Mr Pullen had actual or constructive knowledge of Mr Feros' injuries. The seriousness of the offending will of course be greater in circumstances where a person knows that the victim has suffered grievous bodily harm or death. In determining the offender's degree of knowledge, the Court can have regard to the way in which the offender was driving prior to the impact: Adam v R [2014] NSWCCA 265 at [35]-[36]. I am satisfied that Mr Pullen must have known that Mr Feros suffered significant injuries as a result of the collision. This is evident from his proximity to Mr Feros, the fact that Mr Feros' leg was trapped as a result of the manner in which Mr Pullen was driving just prior to the collision and how he had to escape through the window of the vehicle.
4. In my view, it was not open to her Honour to find that the offending was "well below the mid-range". This is so having regard to the following factors. First, Mr Pullen attempted to flee on two occasions. Secondly, Mr Pullen must have had actual knowledge of Mr Feros' injuries when he tried to flee. Thirdly, Mr Pullen was under the influence of drugs and alcohol at the time of the collision and his attempted flight would have frustrated attempts by police to test his blood alcohol concentration in a timely manner. In my view, the objective seriousness of the offence is just below the mid-range.
5. The purpose of the offences under s 52AB is twofold. First, it emphasises the need for drivers involved in serious motor vehicle accidents to stop and provide assistance to anyone who is injured by at least contacting emergency services. Secondly, it seeks to deter people from impeding a police investigation into an accident. If a driver in a serious motor vehicle accident flees, it may hinder police in their ability to collect the necessary evidence to discover the cause of the accident and to determine who is at fault as well as, if necessary, to lay charges against the driver or to issue fines: see Adam v R at [22].
6. These purposes are evident from the second reading speech in 2005 when this offence was first introduced, in which the following was said: "The focus of the new offences is to ensure assistance for victims of serious vehicle impacts. Assistance may save a life, minimise injury, improve the prospect of recovery, alleviate suffering, and preserve the dignity of the injured or deceased. Failure to stop and assist in serious accidents should invite significant punishment … What is required is for the person to stop and take steps to assist directly or obtain expert help by contacting police or emergency services to ensure that professional expert assistance is obtained at the earliest opportunity. The action of drivers fleeing may thwart police in their ability to identify the drivers and collect necessary evidence. The presence of drivers at the scene ensures that the investigation is at no disadvantage": NSW Legislative Assembly, Parliamentary Debates (Hansard), 21 September 2005 at 18124.
7. The fact that Parliament intended that these offences should invite "significant punishment" is reflected in the maximum penalty of imprisonment for 7 years where the impact occasions grievous bodily harm and 10 years where the impact cases death: Crimes Act, s 52AB(1), (2). In offences of this kind, the need for general deterrence and denunciation is of considerable importance. This is because failing to stop and assist in the event of a serious collision may result in unnecessary loss of life or the prolonging of suffering in circumstances where treatment for any injuries sustained may be readily available. In these circumstances, severe punishments are warranted to deter drivers from fleeing in the event of a serious collision.
8. In my opinion, the indicative sentence for Count 2 does not reflect the distinct criminality involved in failing to stop and assist and does not give sufficient weight to considerations of general deterrence and denunciation. This inadequacy is compounded by her Honour's error in relation to the assessment of the objective seriousness of the offence.

The aggregate sentence

1. Having regard to the foregoing, I am satisfied that the aggregate sentence imposed by her Honour is manifestly inadequate. The inadequacy of the sentence imposed is further compounded by the fact that her Honour ordered that it be served by way of an ICO. Although an ICO ordinarily involves substantial punishment, it also reflects a significant degree of leniency: R v Pogson; R v Lapham; R v Martin (2012) 82 NSWLR 60; [2012] NSWCCA 225 at 84 [106]; Whelan v R (2012) 228 A Crim R 1; [2012] NSWCCA 147 at [120]. This additional leniency was not warranted in Mr Pullen's case, under the then applicable legislative scheme given that, as her Honour found, the offending was much more than mere momentary inattention or misjudgement. In this respect, her Honour said the following: "I am satisfied that the offending demonstrates a considerable level of moral culpability falling between the middle and high range of moral culpability on the spectrum. In making this assessment I note the observations of McCallum J in R v Manok at [37]: 'offences under s 52A are not divided by a bright line between cases of momentary inattention and those of abandonment of responsibility. On that issue, I would respectfully adopt the remarks of Simpson J (as her Honour then was) in R v Khatter [2000] NSWCCA 32 at [31]: "Those are the two extremes. There are shades and gradations of moral culpability in different instances of the offence and it is proper for the courts to recognise a continuum, rather than a dichotomy, when assessing moral culpability".' To drive through a work zone at a speed in excess of the speed limit completely disregarding the safety of not only the offender's passenger but also the workers present at the time, whilst under the influence of alcohol and cannabis is particularly reprehensible and requires condign punishment."
2. In R v Whyte at [214], the Court issued the following guideline with respect to the typical case: "A custodial sentence will usually be appropriate unless the offender has a low level of moral culpability, as in the case of momentary inattention or misjudgment."
3. Similarly, in R v Pisciuneri [2007] NSWCCA 265 at [75], it was said that a "non-custodial sentence for an offence against s 52A is almost invariably confined to cases involving momentary inattention or misjudgement".
4. A principal focus of a determination of a ground of manifest inadequacy is whether the aggregate sentence reflects the totality of the criminality involved: JM v R at [40]. In my opinion, it does not. In imposing an aggregate sentence of imprisonment for 15 months to be served by way of an ICO, her Honour failed to give effect to the legal principles cited in her remarks on sentence and the factual findings that she made. In particular, the sentence fails adequately to account for the fact that Mr Pullen's actions placed a number of people in danger and that he acted with complete disregard for the safety of Mr Feros, the road workers and anyone else who may have been on the roads at the time he was driving. The inadequacy is reinforced by her Honour's error in respect of the objective seriousness of the fail to stop and assist offence.

The residual discretion

1. The Court retains a "residual discretion" to decline to interfere with a sentence notwithstanding that it is manifestly inadequate: Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 at [1]. The Crown bears the onus of demonstrating why the residual discretion should not be exercised: CMB v Attorney General for NSW (2015) 256 CLR 346; [2015] HCA 9 at [33]-[34], [66].
2. The Crown contends that the sentence imposed is so far below the range of sentences that could justly be imposed such that it undermines public confidence in the proper administration of criminal justice: see Green v The Queen at [42]. The purpose of the present appeal was also said to be to allow this Court to provide further guidance to sentencing courts to ensure that sentences imposed for these types of offences adequately reflect the criminality involved in the offending conduct. I accept the Crown's submissions in this respect. Offences of this kind are ones that tend to produce divergent sentencing outcomes: see, eg, R v Shashati [2018] NSWCCA 167 at [60] (in relation to dangerous driving occasioning death). Statements of principle from this Court will therefore be useful in promoting uniformity of sentencing and assist in the maintenance of public confidence in the administration of justice.
3. Further, in R v Shashati at [59], this Court said the following: "If the nature of the error in this case involved no more than a disputable judgment as to the proper weight to be given to subjective circumstances of the offender, intervention might well be inappropriate, even if the sentence were perceived to be manifestly inadequate. However, that is not so; rather, the inadequacy resulted from a misapplication of principle in assessing the objective seriousness of the offending. This is a matter of importance with respect to the regular administration of justice."
4. Similarly, in the present case, the inadequacy arose, in part, from a misapplication of principle in assessing the objective seriousness of the offending in relation to Count 2.
5. The Crown further contends that the Court should have regard to the changes to the legislative scheme governing ICOs. This Court is of course entitled to have regard to events which have occurred after the original sentence in considering whether or not to exercise the residual discretion: see R v Reeves (2014) 243 A Crim R 559; [2014] NSWCCA 154 at [19]; R v Deng (2007) 176 A Crim R 1; [2007] NSWCCA 216 at [28]. The previous scheme, under which Mr Pullen was sentenced, was replaced by the Crimes (Sentencing Procedure) Amendment (Sentencing Options) Act 2017, which commenced on 24 September 2018. The Amending Act inserted a transitional provision which deals with existing ICOs: Crimes (Sentencing Procedures) Act 1999, sch 2 cl 72. That provision relevantly provides as follows: "72 Existing intensive correction orders under section 7 (1) This clause applies to an intensive correction order (the intensive correction order) made under section 7 before its substitution by the amending Act and in force immediately before the commencement day. (2) The intensive correction order is taken to have been made under section 7 as substituted by the amending Act. (3) The intensive correction order is on the commencement day subject only to: (a) the standard conditions of an intensive correction order, and (b) any conditions imposed under section 81 (3) of the Crimes (Administration of Sentences) Act 1999 and in force immediately before the commencement day in respect of the intensive correction order, and (c) a condition that requires the offender to undertake a minimum of 32 hours of community service work a month, as directed by a community corrections officer, and (d) any other conditions prescribed by or determined under the regulations."
6. The standard conditions referred to in cl 72(3)(a) of schedule 2 are those found in s 73 of the Crimes (Sentencing Procedures) Act, which provides as follows: "73 Standard conditions (1) The sentencing court must at the time of sentence impose on an intensive correction order the standard conditions of an intensive correction order. (2) The standard conditions of an intensive correction order are the following: (a) a condition that the offender must not commit any offence, (b) a condition that the offender must submit to supervision by a community corrections officer."
7. The new statutory scheme provides some additional flexibility to sentencing judges in that it decreases the number of mandatory conditions attached to ICOs and allows the Court to impose further conditions which are appropriate in the circumstances of the particular case.
8. As her Honour did not impose any additional conditions under s 81(3) of the Crimes (Administration of Sentences) Act 1999 as it existed at the time, Mr Pullen will only be subject to the standard conditions and a condition requiring him to undertake a minimum of 32 hours of community service per month. Significantly, many of the mandatory conditions in the previous scheme are now reflected in the obligations attached to the supervision condition: see Crimes (Administration of Sentences) Regulation 2014, cl 187. The main differences between the two schemes are that the conditions requiring the offender to comply with a curfew and undertake community service at the direction of the offender's supervisor and prohibiting the offender from possessing or having in his or her control any firearm or other offensive weapon are no longer mandatory conditions. They are also not included in the list of obligations attached to the supervision condition. As a result, I accept the Crown's contention that, to a small extent, the commencement of the new scheme affords some additional leniency to Mr Pullen.
9. The commencement of the new legislative regime which has resulted in this additional leniency is, of course, not a matter that goes to whether or not the Crown has established error, or whether the sentence is manifestly inadequate to begin with, but it is relevant to determining whether the residual discretion should be exercised.
10. The statement in R v Pogson; R v Lapham; R v Martin that ICOs involve substantial punishment was to a significant extent premised on the existence of onerous mandatory conditions which imposed significant restrictions upon an offender's liberty: see, eg, at 76 [66], 76 [70], 83 [98], 84 [109]. That remains the case with the new scheme as persons subject to an ICO are required to comply with multiple mandatory obligations which are attached to the standard conditions: see Crimes (Administration of Sentences) Regulation 2014, cls 186 and 187. There are also additional obligations which are prescribed by regulation which attach to the additional conditions that may be imposed under s 73A(2): see Crimes (Administration of Sentences) Regulation 2014, cls 189-189G. The degree of punishment involved in an ICO, and therefore its appropriateness in a particular case, must now be assessed having regard to the number and nature of conditions imposed. In some cases, as a result of the significant number of obligations prescribed by the regulations, an ICO will be more onerous than it was under the previous scheme.
11. On the other hand, Mr Pullen points to two significant factors that favour the exercise of the discretion. First, he has already completed approximately 50 hours of community service in compliance with the conditions imposed upon him in addition to working full time. The Crown concedes that the imposition of an ICO at first instance is a factor militating in favour of applying the residual discretion. Secondly, he contends that the public interest is better served by avoiding a situation where a relatively young man, who came late to the labour market as a result of tragic circumstances in his life, has his employment, and with it his path to rehabilitation, disrupted. Significantly, he has been employed on a full-time basis for almost two years, the entirety of which postdates the commission of these offences.
12. Mr Pullen further contends that it is open for this Court to correct the approach taken by her Honour by providing a statement of principle without proceeding to resentence him. While it is open for this Court to adopt that approach, it is important to recognise that the sentence actually imposed is of considerable significance not only for providing guidance to sentencing judges but also in ensuring that the considerations of general and specific deterrence are adequately accounted for. This was adverted to by Adamson J in R v O'Connor (2014) 239 A Crim R 487; [2014] NSWCCA 53 at [88]-[89] where her Honour said: "[88] Although the principal purpose of the determination of a Crown appeal is to give guidance to sentencing judges, the sentence actually imposed on the respondent is still of considerable importance. The need for specific deterrence in the present case would not be served by an exercise of the residual discretion. [89] Nor indeed would the need for general deterrence be fulfilled were the residual discretion to be exercised. The general deterrence of a sentence is not to be measured solely by reference to its effect on putative offenders. One of the purposes of incorporating an element of general deterrence in a sentence is to ensure that sentences accord with legitimate community expectations and that public confidence in the administration of justice is maintained: Markarian v The Queen [2005] HCA 25; 228 CLR 357 at [82] per McHugh J. Another associated purpose is to prevent the community from supposing that justice could ever require the infliction of extra-curial punishment to make up for any perceived inadequacy of a sentence imposed by a court. As Lord Lane CJ said in R v Darby (1986) 8 Cr. App. R (S.) 487 at 490: '… one of the objects of punishment and by no means the least important object of punishment, is to prevent, so far as possible, the victims of crime from taking matters into their own hands. It is no great step from private vengeance to vendetta, and there is no knowing where vendetta will stop'."
13. In my opinion, the combination of these factors is such that the appeal should be allowed and the Court should proceed to resentence Mr Pullen.

Resentencing

1. I have taken into account two affidavits tendered on behalf of Mr Pullen. The first is the affidavit of Frances Low, a solicitor employed by Legal Aid NSW, affirmed on 17 October 2018. In that affidavit, Ms Low attests to speaking with Mr Marko Prso, a Community Corrections Officer, who advised her that Mr Pullen has been complying with the conditions of the ICO and remains at a low risk of re-offending. Annexed to that affidavit is a letter from Todd Cameron, the owner/director of Cameron Concreting Pty Ltd, who employed Mr Pullen on 6 August 2018. Mr Cameron described Mr Pullen as a "good, honest [and] hardworking person". He also said he understands that "Dominic has made a mistake but the guy I see in front of me from Monday to Saturday 10 hrs a day is not the same person who made that mistake".
2. The second is the affidavit of Mr Pullen affirmed on 18 October 2018, in which he states that he is currently working as a labourer 6 days per week and that on his only day off, he does about 7 hours of community service. He expresses genuine remorse for his actions. Mr Pullen is also "terrified" about the prospect of being sent to gaol as a result of this appeal. That is however not a matter that this Court can take into account in resentencing: Crimes (Appeal and Review) Act 2001, s 68A; R v JW (2010) 77 NSWLR 7; [2010] NSWCCA 49 at [54], [141].
3. In resentencing Mr Pullen, I have taken into account the uncontested factual findings made by her Honour. I also accept her Honour's unchallenged finding that no penalty other than imprisonment is appropriate: Crimes (Sentencing Procedure) Act, s 5(1).
4. Mr Pullen is entitled to a 25 percent discount for his early guilty plea.
5. In my opinion, the starting point for the dangerous driving occasioning grievous bodily harm offence should be imprisonment for a period of 3 years. After the application of the discount, the indicative sentence is imprisonment for a period of 2 year and 3 months. The starting point for the fail to stop and assist offence should be imprisonment for a period of 2 years. After the application of the discount, the indicative sentence is imprisonment for a period of 1 year and 6 months.
6. Having regard to the totality principle and after undertaking the process of notional accumulation pertinent to aggregate sentencing, I consider that an aggregate sentence of imprisonment for 3 years should be imposed in this case.

The appropriateness of an Intensive Correction Order

1. Mr Pullen contends that this Court should order that the sentence imposed be served by way of an ICO. The Crown contends that only a full-time custodial sentence is appropriate. This requires consideration of the new scheme introduced by the Crimes (Sentencing Procedure) Amendment (Sentencing Options) Act 2017.
2. The relevant provisions of the Crimes (Sentencing Procedure) Act 1999 provide as follows: "7 Intensive correction orders (1) A court that has sentenced an offender to imprisonment in respect of 1 or more offences may make an intensive correction order directing that the sentence or sentences be served by way of intensive correction in the community. (2) If the court makes an intensive correction order directing that a sentence of imprisonment be served by way of intensive correction in the community, the court is not to set a non-parole period for the sentence. (3) This section does not apply to an offender who is under the age of 18 years. (4) This section is subject to the provisions of Part 5. 17B Definition of and provisions relating to "assessment report" (1) In this Division: assessment report means a report made by a community corrections officer or a juvenile justice officer under this Part. (2) The purpose of an assessment report is to assist a sentencing court to determine the appropriate sentence options and conditions to impose on the offender during sentencing proceedings. (3) An assessment report is made by a community corrections officer or a juvenile justice officer. (4) The regulations may make provision for or with respect to matters to be addressed in, and the preparation and furnishing of, an assessment report. 17C Request for assessment report (1) Except as provided by section 17D: (a) the sentencing court may request, but is not obliged to request, an assessment report on an offender, and (b) such a request may be made at the following times only: (i) after finding an offender guilty of an offence and before a sentence is imposed, (ii) during sentencing proceedings after a sentence of imprisonment has been imposed on the offender, (iii) during proceedings to impose, vary or revoke an additional or further condition on a community correction order or conditional release order that has been made in respect of the offender, (iv) during proceedings to correct a sentencing error in accordance with section 43, (v) during proceedings to re-sentence an offender after a court has revoked the offender's community correction order or conditional release order. (2) If a court refers an offender for assessment in relation to a sentence and a sentence of imprisonment has been imposed in respect of the offence concerned: (a) the referral stays the execution of the sentence and the operation of section 48, and (b) the offender is to be remanded in custody, or granted bail in accordance with the Bail Act 2013, until the court decides whether or not to make an intensive correction order. 17D Requirement for assessment report (1) The sentencing court must not make an intensive correction order in respect of an offender unless it has obtained a relevant assessment report in relation to the offender. (1A) However, the sentencing court is not required to obtain an assessment report (except if required under subsection (2) or (4)) if it is satisfied that there is sufficient information before it to justify the making of an intensive correction order without obtaining an assessment report. (2) The sentencing court must not impose a home detention condition on an intensive correction order unless it has obtained an assessment report relating to the imposition of such a condition in relation to the offender. (3) The sentencing court must not request an assessment report relating to the imposition of a home detention condition on an intensive correction order unless it has imposed a sentence of imprisonment on the offender for a specified term. (4) The sentencing court must not impose a community service work condition on an intensive correction order or community correction order unless it has obtained an assessment report relating to the imposition of such a condition in relation to the offender. (5) The assessment reports referred to in this section may be in the 1 report or in more than 1 report. 66 Community safety and other considerations (1) Community safety must be the paramount consideration when the sentencing court is deciding whether to make an intensive correction order in relation to an offender. (2) When considering community safety, the sentencing court is to assess whether making the order or serving the sentence by way of full-time detention is more likely to address the offender's risk of reoffending. (3) When deciding whether to make an intensive correction order, the sentencing court must also consider the provisions of section 3A (Purposes of sentencing) and any relevant common law sentencing principles, and may consider any other matters that the court thinks relevant. 68 Intensive correction orders not available where imprisonment exceeds limits (1) An intensive correction order must not be made in respect of a single offence if the duration of the term of imprisonment imposed for the offence exceeds 2 years. (2) An intensive correction order may be made in respect of an aggregate sentence of imprisonment. However, the order must not be made if the duration of the term of the aggregate sentence exceeds 3 years. (3) Two or more intensive correction orders may be made in respect of each of 2 or more offences. However, the orders must not be made if: (a) the duration of the term of any individual term of imprisonment exceeds 2 years, and (b) the duration of the term of imprisonment imposed for all the offences exceeds 3 years. 69 Assessment of suitability of offender for intensive correction order (1) In deciding whether or not to make an intensive correction order, the sentencing court is to have regard to: (a) the contents of any assessment report obtained in relation to the offender, and (b) evidence from a community corrections officer and any other information before the court that the court considers necessary for the purpose of deciding whether to make such an order. (2) Subject to section 73A(3), the sentencing court is not bound by the assessment report. (3) The sentencing court may not make an intensive correction order in respect of an offender who resides, or intends to reside, in another State or Territory, unless the State or Territory is declared by the regulations to be an approved jurisdiction."
3. The general principles involved in statutory interpretation are well-established. In Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [69], McHugh, Gummow, Kirby and Hayne JJ said that the "primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute" and this must be determined having regard to the "language of the instrument viewed as a whole". Although the text of the statute is the "surest guide to legislative intention", the Court must also have regard to its context and purpose: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; [2009] HCA 41 at [47]; SZTAL v Minister for Immigration and Border Protection (2017) 91 ALJR 936; [2017] HCA 34 at [14]. As was said in Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503; [2012] HCA 55 at [39], context includes legislative history and extrinsic materials.
4. Section 17C(1) allows but does not require the Court to "request" an assessment report in relation to the offender. Section 17D(1) provides that the Court must not make an ICO unless it has "obtained" a relevant assessment report. Section 17D(1A) provides that the Court does not need to obtain a report if there is sufficient information already before the Court to justify the making of an ICO. This exception does not apply in respect of s 17D(4) which provides that the Court must not impose a community service work condition unless it has obtained an assessment report relating to the imposition of that condition. Section 73A(3) further provides that the Court must not impose a community service work condition unless an assessment report states that the offender is suitable to be the subject of such a condition. An assessment report is defined in s 17B(1) as "a report made by a community corrections officer or a juvenile justice officer under this Part".
5. Her Honour referred Mr Pullen for assessment as to his suitability for an ICO on 22 June 2018 pursuant to s 69 as it then existed. An assessment report dated 21 August 2018 was prepared by Marko Prso, a Community Corrections Officer, in accordance with s 70 as it then existed. Although the report was prepared under the old scheme, I am prepared to treat it as an assessment report under s 17B(1). The purpose of ss 17B, 17C and 17D is to ensure that the Court, when considering whether to impose an ICO, has sufficient information to make that determination: see NSW Legislative Assembly, Parliamentary Debates (Hansard), 11 October 2017 at 5. So much is evident from s 17D(1A), which dispenses with the requirement under s 17D(1) where the Court already has sufficient information to make that determination. It would be a statutory absurdity if this Court were required to delay the disposition of this appeal in order to obtain a further assessment report in circumstances where a report was provided approximately two and a half months ago and where a new report is unlikely to differ in substance from the existing report. In my opinion, if this Court has regard to an assessment report that was the subject of a request by the Court below, that satisfies the requirement in s 17D(1). It was accepted by the Crown that this course was appropriate in this case if the Court were minded to allow the appeal and resentence Mr Pullen to imprisonment by way of an ICO.
6. Section 67 provides that an ICO is not available for certain offences. It is not applicable in this case.
7. Section 68(2) provides that an ICO must not be made if the aggregate sentence of imprisonment exceeds three years. The Crown contends that an ICO is not available if the term of imprisonment for any one offence exceeds two years even where the Court imposes an aggregate sentence for the offences. Mr Pullen, on the other hand, submits that where the Court proceeds by way of an aggregate sentence, it does not matter whether the indicative sentence for any individual offence exceeds two years as long as the aggregate sentence does not exceed three years' imprisonment.
8. The proper construction of s 68 is clear. Section 68(1) and (3) provide for circumstances where the Court does not impose an aggregate sentence. However, where an aggregate sentence is imposed, s 68(2) makes clear that the only relevant limitation on the imposition of an ICO is that the aggregate sentence must not exceed three years' imprisonment. As indicated earlier, the Court has determined to proceed by way of aggregate sentencing in this case. Upon the proper construction of s 68, an ICO is available so long as the term of the aggregate sentence does not exceed three years. Accordingly, s 68 does not prevent the imposition of an ICO in this case.
9. In determining whether an ICO should be imposed, s 66(1) makes "community safety" the paramount consideration. The concept of "community safety" as it is used in the Act is broad. As s 66(2) makes plain, community safety is not achieved simply by incarcerating someone. It recognises that in many cases, incarceration may have the opposite effect. It requires the Court to consider whether an ICO or a full-time custodial sentence is more likely to address the offender's risk of re-offending. The concept of community safety as it is used in the Act is therefore inextricably linked with considerations of rehabilitation. It is of course best achieved by positive behavioural change and the amendments recognise and give effect to the fact that, in most cases, this is more likely to occur with supervision and access to treatment programs in the community.
10. Section 66(3) also requires the Court to consider the purposes of sentencing under s 3A, any common law sentencing principles as well as any other matters that the Court thinks relevant. Section 3A provides: 3A Purposes of sentencing The purposes for which a court may impose a sentence on an offender are as follows: (a) to ensure that the offender is adequately punished for the offence, (b) to prevent crime by deterring the offender and other persons from committing similar offences, (c) to protect the community from the offender, (d) to promote the rehabilitation of the offender, (e) to make the offender accountable for his or her actions, (f) to denounce the conduct of the offender, (g) to recognise the harm done to the victim of the crime and the community.
11. The Court must also have regard to, but is not bound by, any assessment report obtained as well as evidence from a community corrections officer: Crimes (Sentencing Procedures) Act, s 69. The prioritisation of the consideration of community safety as the "paramount consideration" necessarily means, however, that other considerations, including those enunciated in s 3A of the Act, become subordinate.
12. This is likely to occur most frequently in the case of a young offender with limited or no criminal history and excellent prospects of rehabilitation. In every case, however, a balance must be struck and appropriate weight must be given to all relevant factors which must be taken into account in arriving at the sentence, by way of the instinctive synthesis discussed in Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [51].
13. This interpretation is supported by the second reading speech, in which the Attorney General said the following: "New section 66 of the Crimes (Sentencing Procedure) Act will make community safety the paramount consideration when imposing an intensive correction order on offenders whose conduct would otherwise require them to serve a term of imprisonment. Community safety is not just about incarceration. Imprisonment under two years is commonly not effective at bringing about medium- to long-term behaviour change that reduces reoffending. Evidence shows that community supervision and programs are far more effective at this. That is why new section 66 requires the sentencing court to assess whether imposing an intensive correction order or serving the sentence by way of full-time detention is more likely to address the offender's risk of reoffending": NSW Legislative Assembly, Parliamentary Debates (Hansard), 11 October 2017 at 2 (emphasis added).
14. The result of these amendments is that in cases where an offender's prospects of rehabilitation are high and where their risk of reoffending will be better managed in the community, an ICO may be available, even if it may not have been under the old scheme. The new scheme makes community safety the paramount consideration. In some cases, this will be best achieved through incarceration. That will no doubt be the case where a person presents a serious risk to the community. In other cases, however, community protection may be best served by ensuring that an offender avoids gaol. As the second reading speech makes plain, evidence shows that supervision within the community is more effective at facilitating medium and long term behavioural change, particularly when it is combined with stable employment and treatment programs.
15. In my opinion, an ICO is more likely to address Mr Pullen's risk of reoffending. The evidence presented before this Court suggests that Mr Pullen is progressing quite well on his existing ICO. He has complied with the conditions of his ICO, maintained stable employment, undergone counselling and generally abstained from consuming alcohol and drugs. He also believes he is at a point where he no longer requires antidepressant medication or counselling but he has expressed a willingness to resume taking medication and counselling if the need arises. It is clear that Mr Pullen has gone some way to addressing his risk factors, which were identified in the assessment report as "alcohol/drug problems" and "emotional/personal". That progress would, in my view, be lost if he were to be incarcerated.
16. Her Honour assessed Mr Pullen's prospects of rehabilitation as "excellent" and his likelihood of reoffending as "highly unlikely". In these circumstances, I am satisfied that he does not pose a risk to the community. In my view, the safety of the community is better served if Mr Pullen continues on his current course.
17. I have also had regard to the pre-sentence report and the assessment report, both of which assess Mr Pullen's risk of reoffending as "low/medium". The pre-sentence report considers that Mr Pullen would benefit from treatment in the community. The assessment report considers Mr Pullen to be suitable for an ICO.
18. I accept that the imposition of an ICO in this case represents some degree of leniency. However, as I intend to impose a number of conditions in addition to the mandatory conditions, I am satisfied that the imposition of an ICO in this case still incorporates a substantial degree of punishment, having regard as well to the significant increase in the length of the ICO. This is particularly so when one has regard to the obligations which are prescribed by the regulations and which attach to those conditions. I accept that the emphasis on general and specific deterrence and denunciation in offences of this kind as well as the guideline in R v Whyte are factors that militate against the imposition of an ICO. However, in this case, these considerations should be considered in light of the paramount consideration of community safety introduced by the new s 66.
19. In my opinion, the sentence imposed should be served by way of an ICO, which should be backdated to commence on 24 August 2018, the date Mr Pullen was originally sentenced. The ICO will be subject to the two standard conditions under s 73(2) of the Act, which are that: 1. The offender must not commit any offence. 2. The offender must submit to supervision by a community corrections officer. The obligations attached to this condition are prescribed by cl 187 of the Crimes (Administration of Sentences) Regulation.
20. Section 73A(1)-(1A) requires the Court to impose at least one additional condition unless there are exceptional circumstances. I propose to impose the following additional conditions under s 73A(2) of the Act: 1. The offender must perform 650 hours of community service work. I note in respect of this condition that the assessment report prepared for Mr Pullen indicates that he is suitable to be the subject of a community service condition: s 73A(3). The obligations attached to this condition are prescribed by cl 189C of Crimes (Administration of Sentences) Regulation. 2. The offender is to participate in a rehabilitation program or to receive treatment. The obligations attached to this condition are prescribed by cl 189D of the Crimes (Administration of Sentences) Regulation. 3. The offender is to abstain from consuming alcohol and drugs. The obligations attached to this condition are prescribed by cl 189E of the Crimes (Administration of Sentences) Regulation.
21. I propose to impose the following further condition under s 73B of the Act: 1. The offender is to complete the Sober Driver Program if he is assessed as suitable by his supervisor.
22. Mr Pullen is also disqualified from driving for a period of 2 years commencing on 24 August 2018.

Conclusion and orders

1. In my opinion, the following orders should be made: 1. Appeal allowed. 2. Quash the sentence imposed by her Honour Bright DCJ on 24 August 2018. 3. In lieu thereof, sentence Dominic Ashley Pullen to an aggregate period of imprisonment of 3 years to be served by way of an Intensive Correction Order commencing on 24 August 2018 and expiring on 23 August 2021. 4. The Intensive Correction Order is subject to the following conditions: 1. The offender must not commit any offence. 2. The offender must submit to supervision by a community corrections officer. 3. The offender must perform 650 hours of community service work. 4. The offender is to participate in a rehabilitation program or to receive treatment. 5. The offender is to abstain from consuming alcohol and drugs. 6. The offender is to complete the Sober Driver Program if he is assessed as suitable by his supervisor. 1. Mr Pullen is disqualified from driving for a period of 2 years commencing on 24 August 2018.
2. SCHMIDT J: I agree with Harrison J.

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: 23 November 2018