R v Russell

Court of Criminal Appeal (NSW)|2022-10-21|Before: Kirk JA, Adams J, McNaughton J

WLR 382 R v West [2011] NSWCCA 91 R v Whyte [2002] NSWCCA 343 R v Wright [2013] NSWCCA 82; (2013) 229 A Crim R 245 Regina v M A [2004] NSWCCA 92; (2004) 145 A Crim R 434 The Warkworth (1884) 9 PD 145 Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 Category: Principal judgment Parties: Director of Public Prosecutions (NSW) (Appellant) Stephen George Russell (Respondent) Representation: Counsel: M England (Appellant) G D Wendler (Respondent)

Solicitors: Solicitor for Public Prosecutions (Appellant) Stacks Law Firm (Respondent) File Number(s): 2019/183928 Decision under appeal Court or tribunal: District Court of NSW Jurisdiction: Criminal Date of Decision: 5 May 2022 Before: Payne DCJ File Number(s): 2019/183928

HEADNOTE [This headnote is not to be read as part of the judgment] On 22 February 2022, Stephen George Russell ("the respondent") pleaded not guilty in the District Court to four offences: two counts of dangerous driving occasioning death; one count of dangerous driving occasioning grievous bodily harm; and a fourth count of doing an act intending to pervert the course of justice. On 10 March 2022, the jury returned verdicts of guilty to the first three counts of dangerous driving and a verdict of not guilty verdict for the fourth count. On 5 May 2022, her Honour Judge Payne ("the sentencing judge") imposed an aggregate sentence of 4 years imprisonment, commencing on 5 May 2022, with a non-parole period of 2 years imprisonment. The offences for which the respondent was sentenced related to a single collision which occurred in the course of the respondent descending a hill while towing a grossly overloaded caravan. Pursuant to s 5D of the Criminal Appeal Act 1912 (NSW), the Director of Public Prosecutions ("the appellant") has appealed the sentence on the following grounds: (1) That the sentencing judge erred in her assessment of the length of the journey during which others were exposed to risk; (2) That the sentence imposed is manifestly inadequate. The Court held (per McNaughton J, Kirk JA and N Adams J agreeing), allowing the appeal and resentencing the respondent: In respect of ground 1 The sentencing judge erred as it was not open for her Honour to make a finding of fact that the dangerous driving only arose from the time of the caravan first swaying. The dangerousness arose from the respondent's deliberate decision to set off on a journey towing a grossly overloaded caravan. The passengers, as well as members of the travelling public, were exposed to risk for the entire length of the journey: at [54], [57]. R v Manok [2017] NSWCCA 232; R v Warner (1991) 25 NSWLR 382; Jiminez v The Queen (1992) 173 CLR 572; [1992] HCA 14; Mina Nashed v Regina [2010] NSWCCA 282; R v Takai [2004] NSWCCA 392 considered. In respect of ground 2 The aggregate sentence failed to recognise the totality of the criminality, particularly given the death of two people and the grievous bodily harm of a third person. The indicative sentences showed error, and when combined with the extent of the notional accumulation, contributed to the imposition of a wholly inadequate aggregate sentence: at [99] - [102]. R v Whyte [2002] NSWCCA 343; Moodie v R [2020] NSWCCA 160; R v Manok [2017] NSWCCA 232; R v Bortic [2021] NSWCCA 138; R v Janceski [2005] NSWCCA 288; (2005) 44 MVR 328 considered. The degree of departure of the non-parole period from the statutory ratio of 75% to 50% assisted in bringing about a non-parole period which was manifestly inadequate and did not reflect the criminality involved in the serious offending: at [108]. General deterrence, specific deterrence and denunciation were not properly reflected in the ultimate sentence: at [109]. Caristo v R [2011] NSWCCA 7; Power v The Queen (1974) 131 CLR 623; [1974] HCA 26; Regina v M A [2004] NSWCCA 92; (2004) 145 A Crim R 434; Hejazi v R [2009] NSWCCA 282; (2009) 217 A Crim R 151; Maglis v R [2010] NSWCCA 247; R v West [2011] NSWCCA 91 considered. The Court's residual discretion and resentencing The appellant satisfied the Court that it should not exercise its discretion to decline to intervene: at [111]. The appellant swiftly instituted the appeal, succeeded on both grounds of appeal and the seriousness of the offending are such that the Court should intervene to increase the respondent's sentence to properly reflect the need for general deterrence, specific deterrence, punishment and denunciation: at [114]. The respondent is resentenced to a new aggregate sentence of 6 years and 6 months imprisonment with a non-parole period of 4 years: at [118].

JUDGMENT

KIRK JA: I agree with McNaughton J.
N ADAMS J: I agree with McNaughton J.
MCNAUGHTON J: The Director of Public Prosecutions (NSW) ("the appellant") has appealed against the sentence imposed on Stephen George Russell ("the respondent") by her Honour Judge Payne ("the sentencing judge") in the District Court at Tamworth on 5 May 2022 following a trial by jury.1 The respondent was sentenced to an aggregate sentence of 4 years imprisonment with a non-parole period of 2 years for three offences arising from the respondent's dangerous driving occasioning the deaths of two people and the grievous bodily harm of a third person. The aggregate sentence commenced on 5 May 2022.
Tragically, the people killed were the respondent's wife of over 30 years, Lynette Russell, and the respondent's stepson, Steven Russell. The person grievously harmed was Steven Russell's partner, Lisa Willis.
The details of the charges, the maximum penalties and the indicative sentences provided by the sentencing judge are as follows: 1. Dangerous driving occasioning the death of Lynette Russell (pursuant to s 52A(1)(c) of the Crimes Act 1900 (NSW)) carries a maximum penalty of 10 years imprisonment. The indicative sentence provided by the sentencing judge was 2 years and 6 months; 2. Dangerous driving occasioning the death of Steven Russell (pursuant to s 52A(1)(c) of the Crimes Act), carries a maximum penalty of 10 years imprisonment. The indicative sentence provided by the sentencing judge was also 2 years and 6 months; 3. Dangerous driving occasioning the grievous bodily harm of Lisa Willis (pursuant to s 52A(3)(c) of the Crimes Act) carries a maximum penalty of 7 years imprisonment. The indicative sentence provided by the sentencing judge was 1 year and 9 months.
The respondent was also disqualified from driving for three years.
The appellant relies on two grounds of appeal as follows: 1. That the sentencing judge erred in her assessment of the length of the journey during which others were exposed to risk; 2. That the sentence imposed is manifestly inadequate.
The respondent concedes the first ground is made out but argues (even with that concession having been made) that the final sentence, whilst merciful, is not manifestly inadequate. I am of the view for the reasons that follow that both grounds have been made out, that the appeal should be allowed, and the respondent's sentence should be increased. The orders I propose are at the conclusion of my reasons.

Trial

The trial commenced on 22 February 2022 and concluded on 10 March 2022. The jury deliberated for approximately one hour in total. In addition to the three counts in relation to which the respondent was found guilty, there was a fourth count for which he was found not guilty. That was an allegation that he intended to pervert the course of justice by telling Lisa Willis to withhold information she intended to give to police in relation to the collision (pursuant to s 319 of the Crimes Act).

Facts

At the sentence proceedings, the appellant tendered an agreed statement of facts which the sentencing judge reproduced in her judgment, and no issue is taken with this account.
In summary, the collision occurred on 3 January 2019 at Yarrowitch in the course of the respondent driving himself and some family members (Lynette Russell, Steven Russell and Lisa Willis) who were moving from Tamworth to Wauchope (near Port Macquarie). The respondent was driving his Toyota Prado and towing an overloaded Jayco Heritage caravan which was essentially being utilised as a removalist truck. He was responsible for overloading the caravan, having supervised and directed Lisa Willis and her partner Steven Russell in its loading.
The maximum specified weight of the caravan and its contents was 2,387 kilograms. Following the collision, the caravan and contents were weighed at 3,200 kilograms. The caravan was therefore overloaded by 813 kilograms. The Toyota Prado was also loaded with items for the move and had a silver Quintrex aluminium boat on its roof. The weight of the caravan also exceeded the maximum tow ball load, the maximum dual axle loading and the maximum tyre load.
On the day of the collision, the respondent and his passengers left Tamworth to drive to Wauchope, a distance of approximately 250 kilometres. The respondent drove from Tamworth along the Oxley Highway to Walcha where they stopped for a short break before continuing. Lisa Willis gave evidence at the trial that the vehicle was sluggish and had no power going up the hills and had to shift into first gear to go up the hills.
After the break at Walcha, the respondent continued to drive the vehicle towing the overloaded caravan. About 42 kilometres past Walcha, the respondent towing the overloaded caravan started to descend down a hill into the Yarrowitch Valley. The respondent told a police officer at the scene that he was "comin' over the rise, I started to speed up and I tried to slow the car down, and the caravan started swayin'. And all I could remember was the tree comin at me."
The weight of the caravan pushed against the rear of the vehicle and caused the vehicle to rotate in an anti-clockwise direction. The caravan rolled and the hitch receiver which connected the caravan to the vehicle broke. The caravan detached from the vehicle, slid in an easterly direction along the Oxley Highway and collided with a guard rail on the northern side of the road. It was substantially damaged with the chassis and contents being strewn across the road and into the gully on the north side of the road. The vehicle left the road and collided with the wire barrier causing the vehicle to roll over. The boat and roof of the vehicle on the passenger side impacted a large tree just off the roadway, causing the boat to detach and the roof to collapse. The vehicle bounced off the tree and landed right side up on an embankment below the tree.
An examination of the tyre scuff marks on the road showed that the caravan began to sway side to side. The swaying increased in intensity and became more violent. The scuff marks showed that when the caravan was swaying from side to side it crossed to the incorrect side of the road. The respondent lost control of the vehicle causing the collision. The respondent had travelled a distance of about 130 kilometres towing the overloaded caravan before the collision.
The vehicle and the caravan were inspected for mechanical faults and defects which may have been a contributing factor toward the collision, but none were found. The electric brakes of the caravan were tested and found to be operational.

Sentencing proceedings

The proceedings on sentence were heard on 4 and 5 May 2022. The sentence bundle tendered by the appellant included the agreed facts; the respondent's criminal history and traffic record; the facts for a prior driving offence from 2012; and victim impact statements from Lisa Willis and family members of Lynette Russell and Steven Russell, together with a table outlining the familial relationships. The appellant also tendered a sentencing assessment report and provided written submissions.
The respondent read an affidavit in which he described his background, family history, criminal history, medical conditions, and matters following the offence. Various medical documents were annexed.
The respondent's affidavit included the following in relation to the collision: "How the accident came to this I will never know or understand." "I have loaded the caravan before with belongings and equipment when going on holidays for 2-3 weeks, with the dinghy on top. While it may be heavy I was use [sic] to it and never had a problem." "I have to accept the juries verdict and take responsibility but it distresses me that it happened. I just can't get over it."
The affidavit also contained information about his criminal history which included larceny and driving offences, the latter of which involved driving a vehicle recklessly, furiously, or at a speed or manner dangerous to the public on 18 October 2012. In relation to this he stated he was: "…recklessly driving a truck towards roadworks when a vehicle in front towing a trailer was stopped. I braked but clipped the rear of the trailer veering down the same side of the road for about 50 metres pulling the handbrake on and stopped. The offside front wheel was damaged and turned inwards. The box trailer was carrying a dismantled garden shed. The driver of the vehicle was not injured."
The respondent also gave short oral evidence, confirming the matters in his affidavit. He also confirmed that he accepted the jury's verdict, and accepted responsibility for what occurred. He also confirmed that he had set out in his affidavit "aspects of remorse about the loss of [his]…stepson and Lynette". The respondent was not cross-examined.
Also tendered on behalf of the respondent was an affidavit from another stepson, Scott Wilcox, and a family tree. The respondent's counsel provided a series of three documents setting out the respondent's written submissions.

The remarks on sentence

In relation to the facts, the sentencing judge stated, "The factual circumstances of the offending are found in an agreed facts document apart from one matter to which I will return shortly". After setting out those agreed facts, the sentencing judge stated as follows: "The [appellant] said in this case a feature of aggravation I would be satisfied of was in relation to the length of the journey this being a matter noted in the case of R v Whyte [2002] NSWCCA 343 [("Whyte")]. The [appellant] submitted that the length of the journey [was] from when the vehicle and caravan left South Tamworth to when the incident occurred. The incident occurred 42 kilometres past Walcha. The [respondent] had travelled for approximately 130 kilometres. [The respondent's] counsel on the other hand said that the dangerous driving was at a time after the first sway rather than the whole period of driving, this being a feature of aggravation of which I have to be satisfied beyond reasonable doubt and the focus of the trial being the impact together with the driving in a manner dangerous of which the jury must have been satisfied of beyond reasonable doubt consistent with a jury verdict. I am of the view the driving in a manner dangerous was as [the respondent's] counsel said for that period of time."
The sentencing judge went on to state that it was agreed that the level of moral culpability was high, and that this was not a case involving momentary inattention or misjudgement. There was then a further reference to the guideline judgement of Whyte with the remarks continuing as follows: "Continuing from Whyte at [229], 'Where the [respondent's] moral culpability is high a fulltime custodial head sentence of less than three years in the case of death and two years in the case of grievous bodily harm would not generally be appropriate.['] This is a guideline only. It is a reference point not a starting point. R v Errington (2005) 157 A Crim R 553. I accept the submission of both parties that there must also be levels within high moral culpability or there must be different levels of high moral culpability and in my view it is towards the lower end of that spectrum. The case law has made it clear abandonment of responsibility is only one way of describing a high level of moral culpability. Degrees of moral culpability are a continuum. The [appellant] said that it would not place the case as being an abandonment of responsibility but high on the relevant continuum. This is the submission that I accept. Degrees of moral culpability are a continuum. There is a considerable continuum of criminality in between momentary inattention or misjudgement and abandonment or responsibility R v Khatter [2000] NSWCCA 32. The caselaw is clear that the threshold of abandonment of responsibility does not have to be reached before a fulltime custodial sentence is appropriate. The [appellant] in the submissions carefully considered the elements in the case of Whyte a young offender, that is not applicable here. At the time the [respondent] was 58, he was a truck driver with a heavy vehicle licence. There have been three separate offences here, he is not a person of good character, the victims were not strangers, the injuries he suffered were as follows [these were then set out]. In relation to remorse I accept the [respondent] is remorseful for his offending behaviour."
The extent and nature of the injuries suffered by Lisa Willis were found by the sentencing judge to be an aggravating factor. These included an undisplaced fracture of the left occipital condyle (base of skull and neck) with apical ligament tear; displaced fracture of the third metacarpal shaft (left middle finger); undisplaced fracture of the left acetabulum (hip); surgery to clean and repair cut to her forehead; and surgery to repair her left middle finger.
In relation to the aggravating features under s 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW), the sentencing judge said: "In respect of 21A there were no aggravating features and the other subjective matters I will consider later in these remarks. The [appellant] quite correctly says that the real substance of the offence is not just the dangerous driving it is the dangerous driving in association with the taking of a human life. In this case the [respondent's] dangerous driving resulted in the taking of two human's life [sic] and serious injuries to a third. The Courts have always placed a premium on the importance of human life. I accept the [appellant's] submission that the [respondent] made a deliberate and conscious decision to load his caravan as a removalist van as they were moving to the coast. The caravan was grossly overloaded and the extent of that overloading goes to the seriousness of the offence."
The sentencing judge then set out the respondent's subjective details.
At the time of sentence, the respondent was 61 years of age (and thus 58 years old at the time of the offending). The respondent had been married to Lynette Russell since 1984. They had two children together (Shane Russell and Iain Russell). Lynette Russell also had four children of her own from an earlier relationship (Tracy Wilcox, Scott Wilcox, Darren Wilcox and the victim Steven Russell).
The respondent had served in the Army for about 25 years until 2002. While in the Army, the respondent suffered injuries to his back and right knee and hearing loss from the gunfire. He had been a heavy vehicle truck driver for a transport carrier in Tamworth between 2007 and 2012, driving to Sydney and back weekly. From 2012, he was in receipt of a Department of Veteran Affairs pension. The respondent has not been employed since 2015 due to his back problems which have resulted in difficulties with bending, lifting, and stepping up to the driver's seat of a truck. The respondent had a back operation in 2017.
The respondent was being treated by a psychiatrist in relation to the accident, and he was previously seeing a counsellor. He was also attending physiotherapy for his back and knees once a fortnight and had a regular check-up of his sugar levels, blood pressure and general health with his general practitioner because of the number of medications he was taking. The remarks also recorded that he had treatment for glaucoma in his left eye which required specific eyedrops that slowed the condition as it was inoperable. He also had the use of a walking stick from 2012 onwards due to his knees (one of which had been replaced) and to ease the pain in his back and to keep balance. The sentencing judge noted that custody would be more onerous for him because of his health conditions.
The remarks further recorded the respondent's account in his affidavit that he and the victim Lynette had a loving relationship and that they were living in a rented house in Tamworth together with the victim Steven and their son Shane. The remarks quoted the following from the affidavit: "We had no problems and were happy. We were married for 37 years and what happened is a [sic] extreme loss. There is just a big hole in everything and what I do now with my life".
The sentencing judge found that the respondent's criminal history did not completely disentitle him to leniency, noting that he had served a period of imprisonment for larceny and also driving a vehicle recklessly, furiously, or at a speed or manner dangerous to the public in 2012. It was noted that the matter was initially dealt with in the Local Court, with a subsequent District Court appeal decreasing the sentence from four months to three months (for the driving matter), with additional time for the larceny matters. That is the only time the respondent had been in full time custody.
The sentencing judge found that the respondent's traffic record disentitled him to leniency "even making full allowance that he lived in the country or has lived in the country and he was a transport driver." He had received his licence more than 44 years ago, getting his provisional licence in 1977, his unrestricted 1A licence in August 1978 and his class 3A licence in November 1978. He had a number of suspensions and 14 exceed speed offences between May and August of 2012. The sentencing judge again noted the offence of driving the vehicle recklessly, furiously, or at a speed or manner dangerous to the public, noting it went back to 2012.
The sentencing judge noted that the respondent's mental health concerns would make custody more onerous for him and his physical disabilities, combined with his age, would make him more vulnerable in custody. It was further noted that he would be going into custody during the COVID-19 pandemic and his custody would be more difficult with the court "being fully aware" of "lockdowns and the transfer of covid within the gaol" and noted some cases in support of that proposition.
Victim impact statements were received from Ms Jennifer Martin, the sister of Lynette Russell; Mr Barry Roberts, the natural father of Steven Russell; Mr Darren Wilcox, the son of Lynette Russell; Ms Tracy Wilcox, the daughter of Lynette Russell, and Ms Lisa Willis, the victim in relation to count 3. The sentencing judge stated: "Each of these documents were heartfelt and the Court gives weight to them in relation to s 3A of the Crimes (Sentencing Procedure) Act. The [appellant] did not submit that the harm could be elevated to a feature of aggravation. Unfortunately the very negative and continuing effect that this crime or crimes has had upon them is one which should be expected after such a terrible event. Section 3A says amongst other things '(g) to recognise the harm done to the victim of the crime and the community.' It is in this way the Court takes into account the victim impact statements."
The sentencing judge determined that the respondent had "good prospects for rehabilitation" but went on to state: "As to whether he will or will not re-offend it is very difficult to assess whether that will or will not happen and I make no finding in respect of that, the matter is neutral".
In relation to deterrence and totality the sentencing judge stated: "General deterrence must be a significant feature of this sentencing exercise. Specific deterrence also has a role to play, given the previous driving offence and also his driving record. Totality is an important principle to be applied and I have considered the case of Hall v R [2021] NSWCCA 220 in this connection."
The sentencing judge also noted that she had taken into account a sentencing assessment report, both oral and written submissions of the appellant and counsel for the respondent, the affidavits of the respondent and Scott Wilcox, and all the medical material attached to the respondent's affidavit.
The appellant did not argue against special circumstances being found, and the sentencing judge found them on the basis of the age of the respondent, his conditions of custody including the impacts of COVID-19, his mental health concerns and his requirement for supervision and assistance upon release from custody to reintegrate back into the community.
After passing the indicative and aggregate sentences indicated at the beginning of this judgment, the sentencing judge also disqualified the respondent from driving for a period of three years and noted s 206B of the Road Transport Act 2013 (NSW) applies.

Principles on Crown Appeal

Section 5D of the Criminal Appeal Act 1912 (NSW) provides to the Attorney-General or the Director of Public Prosecutions a right of appeal against a sentence and states that this Court "may in its discretion vary the sentence and impose such sentence as to the said court may seem proper".
The primary purpose of Crown appeals against sentence is to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons: Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 at [1].
As can be seen from the terms of s 5D above, even if error is established, the Court has a discretion whether or not to intervene. It is for the Crown (the appellant) to negate any reason why the residual discretion not to interfere should be exercised: CMB v Attorney-General for New South Wales (2015) 256 CLR 346; [2015] HCA 9.
The grounds of appeal allege both a patent error (Ground 1) and a latent error (Ground 2 - manifest inadequacy).
In relation to Ground 2, the appellant must establish that the sentence was "unreasonable or plainly unjust" such that this Court "may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance" (House v The King (1936) 55 CLR 499 at 505; [1936] HCA 40).
Further, as to sentence appeals on the ground of manifest excess or manifest inadequacy, the High Court stated in Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [58] (Gaudron, Gummow and Hayne JJ) ("Wong"): "… [A]ppellate intervention is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases. Intervention is warranted only 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."
The task of sentencing requires that the sentencing judge must take into account a wide variety of matters which concern the seriousness of the offence for which the offender is to be sentenced as well as the personal history and circumstances of the offender (Wong at [77]). In Elias v The Queen (2013) 248 CLR 483; [2013] HCA 31, the Court (French CJ, Hayne, Kiefel, Bell and Keane JJ) emphasised at [27]: "… the factors bearing on the determination of sentence will frequently pull in different directions. It is the duty of the judge to balance often incommensurable factors and to arrive at a sentence that is just in all of the circumstances. The administration of the criminal law involves individualised justice, the attainment of which is acknowledged to involve the exercise of a wide sentencing discretion." (Footnotes omitted.)

Ground 1: that the sentencing judge erred in her assessment of the length of the journey during which others were exposed to risk

As indicated above, the respondent has conceded error in relation to this ground. He is correct to do so for the following reasons.

The factual dispute at the sentence proceedings

There was a dispute between the parties at the sentencing proceedings regarding the length of the journey during which others were exposed to risk. This factor is the seventh of the list of aggravating factors identified in R v Jurisic (1998) 45 NSWLR 209 at 231 (Spigelman CJ) ("Jurisic"), which were then consolidated and added to in Whyte at [216]-[217]. They are aggravating in the context of an otherwise "typical" case to assist the court in determining the appropriate penalty. The list of factors read 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." (Emphasis added.)
In addition to pointing to the seventh factor, the appellant on sentence also pointed to the eighth factor, that is, that it was an aggravating factor that the respondent had ignored warnings as he had ignored the signs that the vehicle was struggling with the load of the caravan. It was argued in oral submissions that this factor was analogous to a journey by an intoxicated driver or a driver who knew a vehicle's brakes were faulty.
The respondent submitted that the duration of the journey was not an aggravating factor as the respondent had driven without issue for 130 kilometres and that the dangerous driving was at a time after the first swaying of the caravan.

The issue before this Court

In making the contested finding regarding the length of the journey during which others were exposed to risk, the appellant argues to this Court that the sentencing judge made a finding of fact that was not open. Given the nature of the contended error, it is not necessary for me to discuss the appropriate standard of review of findings of fact made by a sentencing judge, a topic which has been the subject of differing views in this Court (see R v O'Donoghue (1988) 34 A Crim R 397; Hordern v R [2019] NSWCCA 138 at [20]; Gibson v R [2019] NSWCCA 221; Martinez v R [2022] NSCCA 12 at [39]).
In my view, the finding that the dangerous driving only arose from the time of the caravan first swaying was not open to the sentencing judge.
The appellant had opened and closed its case to the jury that it was the fact that the caravan was overloaded that made the driving itself dangerous (which caused the sway and ultimately led to the impact and consequences) and therefore, the whole of the journey with the overloaded caravan was dangerous. The respondent's case to the jury was that the overloading of the caravan did not result in the first sway, that an unknown intervening factor caused the first sway, that the respondent lost control of the vehicle after the first sway and therefore, was not the "driver" from the time of the first sway to impact. On sentence, it was incumbent upon the sentencing judge to determine the length of the journey during which the respondent had in fact exposed others to risk as part of the assessment of the respondent's culpability. As noted above, the sentencing judge resolved this dispute in favour of the respondent. Unfortunately, no reasons were provided for that resolution. It was incumbent upon the sentencing judge to provide reasons for this contested issue: R v Lau [2022] NSWCCA 131 at [76]-[78] (Bellew J, Adamson and Lonergan JJ agreeing at [1]; [183]).
A summary of the relevant evidence was conveniently referred to in the written submissions provided by the appellant to this Court, to the following effect: 1. The evidence referred to in the appellant's proposed findings of facts document before the sentencing judge was: "i. [Lisa] Willis and Steven Russell were involved in loading the caravan under the direction and supervision of the respondent. ii. The caravan was overloaded, exceeding its maximum specified weight by 813kg. iii. [Lisa] Willis gave evidence that the vehicle was sluggish and had no power going up the hills. The vehicle had to go into first gear to go up hills. iv. Witnesses gave evidence of the amount of debris and contents from the caravan at the scene, including that the shower cubicle was packed with items. Photographs were tendered at trial showing the extent of the contents of the caravan." (Footnotes omitted.) 1. The appellant's written submissions to the sentencing judge referred to further evidence led in the trial regarding the gross overloading of the caravan. This included the following submissions: "i. Lisa Willis gave evidence of the items loaded in the caravan. [Lisa] Willis also stated that the caravan was a little bit over half full. You could not get to the bathroom or bedrooms. There was no walk space. You could get into the caravan and maybe walk a metre and the rest was packed with things.' [Lisa] Willis also gave evidence that under the respondent's supervision, she and [the victim] Steven Russell packed the caravan with luggage, two fridges and a bar freezer which came from a storage unit, as well as a television, two suitcases, bedding, bags and cooking things." "ii. The witnesses at the scene were amazed at the amount of stuff packed into the caravan. They also described items located such as fridges, bbq, generator an outboard motor as well as household and personal items." (Footnotes omitted.) 1. In the appellant's written submissions to the sentencing judge, to support the proposition that the overloading of the caravan caused the caravan to sway (which caused the collision), the appellant referred to the evidence of the expert, Mr Colin Young, who was called by the appellant at trial, and summarised his evidence as being: "i. The overloading would have horribly impacted upon the (sic) whether the caravan would have swayed. This would have been compounded by speed, travelling downhill and trying to slow the vehicle. ii. Considered the overloading dangerously impaired the handling and stability of the caravan and Prado. He described it as the tail wagging the dog. iii. The uncontrollable swaying was absolutely caused by the overloading of the caravan." (Footnotes omitted.) 1. Additionally, in Mr Young's evidence at trial, when explaining how the overloading of the caravan would have impacted upon whether it would have swayed, Mr Young explained: "If a semi-trailer went past just the different air pressures on the side of the caravan will set up dangerous oscillations or any bump or just a slight increase in speed or a slight inadvertent correction of the steering wheel can be enough to start it swaying." (Footnotes omitted.) 1. Mr Young further explained that the speed of the vehicle "immensely" impacts upon the likelihood of the overloaded caravan starting to sway: "It goes up in exponential range. So if you go from 60 to 120 kilometres an hour you don't just double the momentum or the inertia, you increase it four-fold. So just a small increase up around a typical travelling speed of 90 to 100 kilometres an hour perhaps can have an enormous effect on increasing the propensity of the caravan starting to sway. And that critical speed being reached literally in the blink of an eye." (Footnotes omitted.) 1. Mr Young said that the combination of speed, the caravan being over the regulated weight, and the vehicle travelling downhill is "the worst case scenario". 2. The appellant also referred the sentencing judge to the evidence of Mr Alan Joy, the expert called on behalf of the respondent at trial. The appellant summarised his evidence as follows: "…the crash occurred due to the uncontrollable swaying of the caravan, that if the caravan was exceedingly overloaded it can cause a caravan to sway, and the greater the overloading the greater the risk the caravan will sway." (Footnotes omitted.) 1. In response to the respondent pointing to other periods of the journey which involved driving downhill and applying various speed conditions which were navigated without incident, the appellant contended: "That the [fact that the] risk did not eventuate did not mean that there was not a risk or that the passengers of the respondent's vehicle were not exposed to danger. The fact that the respondent managed to avoid a crash in the earlier parts of the journey does not assuage the evidence of Mr Young and the concessions made by Mr Joy, which were to the effect that objectively the excessive weight of the caravan posed a risk that the caravan would sway, a risk which increased exponentially with speed and when going downhill." 1. Mr Joy conceded in cross-examination that to overload the caravan to that extent was "potentially dangerous because it could result in a loss of control".
In my view, it is clear the evidence showed (and given the way the case was put before the jury, the jury must have found) that the caravan was grossly overloaded from the start of the journey. The dangerousness did not arise from the driving skill, or lack thereof, of the respondent. Nor was it a result of any inattention around the time immediately leading up to the collision. The dangerousness arose from the respondent's deliberate decision to set off on a journey towing a grossly overloaded caravan. The passengers, as well as members of the travelling public, were exposed to risk for the entire length of the journey. The fact that the dangerousness did not manifest itself until the caravan started its fatal swaying was part of the factual circumstances which explained how and when the collision occurred (and was relevant to proving the offence), but that did not determine the dangerousness of the journey, a matter highly relevant to sentencing. The respondent's skill, experience, attention, and his sobriety were no match for the risk posed by his deliberate decision to drive a grossly overloaded caravan - which once it started swaying - was uncontrollable.
This conclusion is in accordance with two analogous cases.
R v Manok [2017] NSWCCA 232 ("Manok") involved a severely sleep deprived driver. The respondent in that case was fatigued from jet lag and had inadequate sleep in the three days preceding the offence. He was driving four passengers and at about 10:30 or 11:00pm, he drove along a highway and took a turnoff onto another road. Around the time of the turnoff, the respondent began to feel tired and a short time later he experienced a microsleep but thought it was unsafe to stop at that point so he continued driving. He drove for another 12 kilometres when he experienced another microsleep which caused the collision. Payne JA at [7] found that: "The circumstances in which [Manok] entered the car that evening were objectively dangerous and exposed passengers in the vehicle and others on the road to real risk from the time that the respondent decided to drive home…Tragically, those risks came to pass."
Payne JA observed at [12]-[13]: "[Manok] knew in embarking on the 1.5 hour drive to Mangrove Mountain that there would be limited opportunities to stop on the freeway or otherwise during the course of that drive. It is not to the point that [Manok], subjectively, did not feel tired until the turn off from the Pacific Highway. In getting into the car in Pyrmont [Manok], on the objective evidence, was sleep deprived and taking a risk. His subjective belief that he was not then tired was of little consequence, in the same way as the subjective beliefs of a driver who believes there is no danger in his or her travelling over the speed limit, or overtaking 'safely' despite it being prohibited, or driving believing (incorrectly) he or she is below the legal blood alcohol limit is of little consequence. The genuine subjective belief of many (or even most) offenders involved in fatal car accidents will be that there is little relevant risk in their conduct. Tragically, in all cases where death or serious injury occurs, that subjective belief will be incorrect."
Wilson J came to the same conclusion, expressed in separate reasons. Her Honour stated at [76]: "[Manok's] decision to drive at all, but particularly to continue to drive as he entered Peats Ridge Road, represents more than a fleeting error of misjudgement involving low moral culpability; rather, the misjudgement was a serious one, and it was maintained over some time and many kilometres before the first sleep incident occurred, and thereafter until the fatal crash."
This conclusion accorded with that of R v Warner (1991) 25 NSWLR 382 ("Warner") - albeit Warner was not cited in Manok. Warner involved a boat navigated in a manner dangerous because it was grossly overloaded and therefore unstable and particularly susceptible to overturning. In the course of his analysis, Carruthers J at 385-386 quoted a passage of Barwick CJ from McBride v The Queen (1966) 115 CLR 44 at 49-50; [1966] HCA 22 (said to have obtained the status of a "locus classicus") in relation to the concept of driving a motor vehicle in a manner dangerous to the public within the meaning of s 52A of the Crimes Act 1900 (NSW): "The section speaks of a speed or manner which is dangerous to the public. This imports a quality in the speed or manner of driving which either intrinsically in all the circumstances, or because of the particular circumstances surrounding the driving, is in a real sense potentially dangerous to a human being or human beings who as a member or as members of the public may be upon or in the vicinity of the roadway on which the driving is taking place… This quality of being dangerous to the public in the speed or manner of driving does not depend upon resultant damage, though to complete the offence under the section, impact-causing damage must occur during that driving. Whilst the immediate result of the driving may afford evidence from which the quality of the driving may be inferred, it is not the result which gives it that quality. A person may drive at a speed or in a manner dangerous to the public without causing any actual injury: it is the potentiality in fact of danger to the public in the manner of driving, whether realized by the accused or not, which makes it dangerous to the public within the meaning of the section." (Emphasis added.)
Carruthers J in Warner added the following at 386: "To this may be added the principle, which is now well-established, that a latent mechanical defect in a motor vehicle may be a defence to a charge of dangerous driving under s 52A, if it causes a sudden total loss of control and is in no way due to any fault on the part of the driver, but such defence has no application where the defect is known to the driver or should have been discovered by him had he exercised reasonable prudence."
In the course of his reasons, Carruthers J referred to consideration of the words "improper navigation" within the meaning of the limitation of liability provision contained in s 54(4) of the Merchant Shipping Act Amendment Act 1862 (UK) as considered by the English Court of Appeal in The Warkworth (1884) 9 PD 145. In that case, the Warkworth collided with another vessel by reason of a defect in its steam steering gear. The defect was the result of faulty work by shore personnel prior to the vessel putting to sea. The Court of Appeal upheld the decision of Butt J that the collision had occurred through "the improper navigation" of the Warkworth. Brett MR said at 147: "… To say that the statute does not apply to negligence on shore is true if it has no effect on the navigation on the water. You must assume that the negligence on shore had its effect on the water, and had an effect on the ship […] Although the negligence occurred before the vessel started its effect was continuous and operated while the ship was on her voyage."
Bowen LJ said at 148: "… A person who uses his ship which is not in a condition to be so employed does in reality improperly navigate her."
Other shipping insurance cases, to similar effect, were discussed by Carruthers J who concluded at 398 that he could see no difference in the alleged overloading which occurred in the instant case and the errors or faulty work which had occurred prior to starting the journeys in the shipping cases: "they all constitute improper conduct which continues through the voyage and may be categorised as improper navigation."
Further, it is noted that in Jiminez v The Queen (1992) 173 CLR 572; [1992] HCA 14 ("Jiminez") the High Court (Mason CJ, Brennan, Deane, Dawson, Toohey and Gaudron JJ) stated at 580: "In the same way, driving a motor vehicle in a seriously defective condition may constitute driving in a manner dangerous to the public, even though the defect does not manifest itself until such time as the vehicle is out of the control of the driver…Driving in that condition must constitute a real danger to the public." (Footnotes omitted.)
I also note that underpinning the sentencing judge's error in relation to the length of the journey (at least in part) appears to be an acceptance of a submission made by the respondent's counsel at the sentencing proceedings which referred to "foreseeability". It is important to remember that this offence is one of strict liability: Jiminez. Concepts of foreseeability arising from civil actions in negligence have no part to play in determining liability for this offence. The error made by the sentencing judge appears to have been affected by importing notions of foreseeability into determining the length of the journey during which others were exposed to risk.
Finally in relation to this ground, I also note that in its written submissions at sentence, the appellant set out that the relevant length of the journey was the length of the planned journey from Tamworth to Wauchope - a distance of 250 kilometres, also noting that the collision occurred approximately 130 kilometres into that journey. The intended length of the journey was indeed relevant to culpability. In Mina Nashed v Regina [2010] NSWCCA 282, Garling J stated at [23] (with whom Price and Simpson JJ (as her Honour then was) agreed at [1]-[2]) that he agreed with the judgment of Simpson J (as her Honour then was) in R v Takai [2004] NSWCCA 392 at [39] where her Honour held that the journey contemplated by this factor "… was the intended journey and not the journey attenuated by the collision …".
I am of the view that Ground 1 is made out.

Ground 2: that the sentence imposed is manifestly inadequate

In considering whether the sentence was manifestly inadequate, the following matters can be noted. The maximum penalty applicable to the two offences of dangerous driving occasioning the deaths of Lynette Russell and Steven Russell is 10 years imprisonment. The maximum penalty applicable to the offence occasioning grievous bodily harm to Lisa Willis is 7 years imprisonment.
The appellant contends that the aggregate sentence in this case manifestly fails to recognise the totality of the criminality, and particularly fails to recognise the loss of two human lives and the grievous bodily harm occasioned to the third victim. It is also contended that the indicative sentences showed error and contributed to the imposition of a wholly inadequate aggregate sentence. The appellant also contends in relation to special circumstances that the extent of the departure from the statutory ratio of 75% pursuant to s 44(2B) of the Crimes (Sentencing Procedure) Act 1999 (NSW) was unwarranted.
Although the respondent conceded that ground 1 was made out, he has nevertheless contended that the sentence is not manifestly inadequate. Rather, at most, it is said to be (as stated on his behalf at the hearing of the appeal) "a sentence which is soft and merciful and it was open in the circumstances for [the sentencing judge] to be merciful having regard to the age, character and antecedents of this particular respondent."
As referred to above, this is an offence to which a guideline judgement applies. [1] In the guideline judgment of Whyte Spigelman CJ at [204] (with whom Mason P, Barr, Bell and McClellan JJ agreed) set out a "frequently recurring case of an offence under s52A" which had the following characteristics: "(i) Young offender. (ii) Of good character with no or limited prior convictions. (iii) Death or permanent injury to a single person. (iv) The victim is a stranger. (v) No or limited injury to the driver or the driver's intimates. (vi) Genuine remorse. (vii) Plea of guilty of limited utilitarian value."
The first limb of the Whyte guideline - the custodial limb - applies to "the typical case" with the above characteristics and is to the effect that in such a 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 misjudgement." [2]
The second limb of the Whyte guideline is the numerical guideline. The numerical guideline relies on both the factors associated with a typical case set out at [74] above, as well as one or more of the aggravating factors impinging on moral culpability set out at [50] above. In the passage preceding the setting out of the numerical guideline, Spigelman CJ stated at [228]: "In the above list of aggravating factors, items (iii)-(xi) are frequently recurring elements which directly impinge on the moral culpability of the offender at the time of the offence. Individually, but more often in some combination, they may indicate that the moral culpability is high. One way of expressing such a conclusion is to ask whether the combination of circumstances are such that it can be said that the offender has abandoned responsibility for his or her own conduct. That is not the only way of expressing such a conclusion."
Spigelman CJ then set out at [229]-[230] of Whyte the reformulated numerical guideline as follows: "The guideline for offences against s52A(1) and (3) for the typical case identified above should be: Where the offender's moral culpability is high, a full time custodial head sentence of less than three years (in the case of death) and two years (in the case of grievous bodily harm) would not generally be appropriate. In the case of a low level of moral culpability, a lower sentence will, of course, be appropriate." (Emphasis added.)
At [231], Spigelman CJ stated: "Other factors, such as the number of victims, will also require an appropriate increment."
Further, at [232], Spigelman CJ stated: "The guideline is, to reiterate, a 'guide' or a 'check'. The sentence imposed in a particular case will be determined by the exercise of a broad discretion taking into account all of the factors required to be taken into account by s21A of the Crimes (Sentencing Procedure) Act."
Importantly, at [205], Spigelman CJ also stated: "As the Parliament has made clear, in the maximum penalties for the offence, conduct which causes death or grievous bodily harm, even in the absence of any intention to cause such injury, is to be regarded as a serious crime. However, in determining the appropriateness of full time custody and the length thereof, the sentencing judge must give close attention to the degree of moral culpability involved. This is a critical component of the objective circumstances of the offence."
In Moodie v R [2020] NSWCCA 160 ("Moodie"), Bell P (as his Honour then was) stated at [66] that where there is a guideline judgment about a particular offence, the sentencing judge is: "[T]o make an assessment about whether the particular case has features about it which suggest that it is sufficiently within or akin to the frequently recurring case described in Whyte to mean that, for the purpose of the guidelines, it ought be regarded as a typical and not an exceptional case."
In Manok, Wilson J stated at [78]-[79]: "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. 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."
Further, Bell P stated in Moodie at [109]: "In approaching the task of re-sentencing in cases involving death by dangerous driving, as has frequently been said (see, for example, R v Jarad Smith [2016] NSWCCA 75 at [18] endorsing the remarks made in R v Melissa McKeown [2013] NSWDC 22 at [5]; R v Steven Barnett [2016] NSWDC 302 at [3]- [4]), judges are asked to perform an impossible task as no human life can ever be equated with a period of imprisonment and no gaol term can return a loved one. A life should never be measured simply by the punishment meted out to an offender. The sentencing discretion must reflect an adequate punishment, recognising the harm done and denouncing the conduct of the offender and also reflect the objective seriousness of the offence, the offender's moral culpability, his or her prospects of rehabilitation and the likelihood or unlikelihood of future offending."
The appellant acknowledges that indicative sentences are not themselves amenable to appeal, and that even if they are inadequate, it does not necessarily follow that the aggregate sentence is manifestly inadequate. However, they may be a guide as to the whether there is error in the ultimate sentence: JM v R [2014] NSWCCA 297; (2014) 246 A Crim R 528 at [40]; R v Hill [2020] NSWCCA 197 at [105]. See also Ladas v R [2022] NSWCCA 160 at [31] and Kliendienst v R [2020] NSWCCA 98 at [76]-[103].
With these principles in mind, it is convenient to return to the remarks on sentence.
In the course of the remarks, the sentencing judge referred to the appellant's submissions which "carefully considered the elements" in Whyte. The sentencing judge at pages 6-7 of the remarks appeared to undertake an exercise of determining whether or not those elements applied in this case, and noted the following in relation to the Whyte "typical" factors (with emphasis added): 1. The respondent was not a young offender, rather a 58 year old truck driver with a heavy vehicle license. 2. There was not one offence here, but three separate offences (and the sentencing judge did not at this point use the terminology of Whyte that the driving resulted in the deaths of two people as well as grievous injury to a third person). 3. The respondent was not a person of good character. 4. The victims were not strangers (although it is not clear whether the sentencing judge considered the fact the respondent knew his victims made the offending more or less serious or indeed was neutral in the circumstances and was set out simply as being different from one of the "elements" in Whyte - I return to this and the following matter below). 5. As to the factor of "No or limited injury to the driver or the driver's intimates", it was also noted that the respondent suffered injuries. Again, it was not clear whether or not this was regarded by the sentencing judge as more or less serious than the Whyte factor. The sentencing judge further noted in this context the "very significant" grievous bodily harm to Lisa Willis (this latter factor clearly increasing the objective seriousness). 6. As to the Whyte factor of "genuine remorse", the sentencing judge accepted the respondent was remorseful for his offending behaviour. 7. As to the Whyte factor of "a plea of guilty of limited utilitarian value", no comment was made in this section of the remarks that this was not a plea of guilty and that the sentence followed findings of guilt by a jury.

Atypical factors

That this matter was "atypical" when compared to the "typical" case of Whyte is clear and indeed striking. The following factors all compared unfavourably to the "typical" Whyte features.
The respondent was a man of mature years, who had been a truck driver who had held a heavy vehicle licence for 42 years. He acknowledged that he was aware of the importance of weight limits and how exceeding those limits could impact on the handling and stability of the vehicle. The respondent was the person who directed and supervised the loading of the caravan which was grossly overloaded. The respondent was the driver of the vehicle when it was sluggish going up hills.
The respondent pleaded not guilty and was found guilty after trial and received no utilitarian discount on his sentence.
The respondent's moral culpability was found by the sentencing judge to have been high (albeit within the lower end of that spectrum) notwithstanding the error made by the sentencing judge in relation to the length of the journey over which others were exposed to risk.
The sentencing judge did not make an explicit finding as to the objective seriousness of the offence but did find that the respondent's deliberate decision to grossly overload the caravan and the extent of that overloading "goes to the seriousness of the offence".
The respondent was not a person of good character, but the sentencing judge found that whilst his criminal record did not completely disentitle him to leniency, his traffic history did disentitle him to leniency.

Typical factors

The only "typical" Whyte feature to be found in this case was the finding of genuine remorse. However, that single "typical" feature was neither so extensive nor powerful to bring the indicative sentences down to the level they were, nor to explain the final aggregate sentence. Indeed, it can be noted that the Community Corrections report stated that: "[The respondent] reported that life was good at the time of the offences, and he was making life changes to help ease his medical burdens by relocating to the coast with his wife. He minimised his actions stating, 'I don't know what happened, it was an accident'. [The respondent] claimed to take accountability for his offences by stating 'I was in the driver's seat, I have to live with that for the rest of my life'; however, he appeared to make efforts to downplay his responsibility, reporting he had conducted all basic vehicle checks prior to the trip. He did acknowledge his car was 'playing up' and needed a service."
Furthermore, in the respondent's affidavit tendered before the sentencing judge, he deposed that "How the accident came to this I will never know or understand". The respondent further indicated that this was not the first occasion in which he had loaded the caravan with belongings and equipment and that "while it may be heavy I was use [sic] to it and never had a problem."

Relevance on sentence of the remaining Whyte factors

Before leaving the Whyte factors, it can be remembered that one of the "typical" matters listed was that the victims were strangers. Whilst this factor might be "typical", unlike most of the other Whyte factors it does not have obvious sentencing implications. Indeed, in my view it is neutral in relation to affecting the length of any sentence.
Causing the unexpected death of a fellow human being by dangerous driving is devastating in all circumstances. There is no obvious objective moral gradation in causing the death of a stranger rather than someone well loved (or indeed someone who falls anywhere between those two points). That an offender may be subjectively more seriously affected by the death of a loved one as against a stranger is possible - but again, it is not necessarily the case that causing the death of a loved person would have a greater effect on an offender than bearing the guilt of killing, for instance, someone else's life partner or child. Considerations may well pull in many directions in determining the effect on sentence on both an objective and subjective level: see R v Wright [2013] NSWCCA 82; (2013) 229 A Crim R 245 at [62]-[63] referring to Hughes v R [2008] NSWCCA 48; (2008) 185 A Crim R 155 and R v Howcher [2004] NSWCCA 179; (2004) 146 A Crim R 371.
In this case, the sentencing judge noted the effect of the deaths on the respondent and took that into account as a mitigating factor.
The same observations can be made in relation to the Whyte factor concerning "no or limited injury to the driver or the driver's intimates." [3]

Consideration

It is clear that Whyte had prominence in the course of the sentencing hearing which flowed through to the remarks on sentence. This was appropriate - indeed the sentencing judge was obliged to take that guideline judgement into account. [4] However, after systematically going through the "typical" factors and finding very few of those occurred to any extent in this case, the numerical guideline should have made clear to the sentencing judge that the indicative sentences were likely to be significantly too lenient in the circumstances of this sentencing exercise. It bespeaks error in the exercise of the sentencing discretion that the indicative sentences were markedly below the numerical guides for both offences rather than markedly above, as might be expected given the objective features of the offending and absent an unusually compelling subjective case. There was no such unusually compelling subjective case to warrant such an outcome.
I am further of the view that the significance of the manifestly inadequate indicative sentences was compounded by the extent of notional accumulation between the three counts. Where more than one person has been injured or killed: "It is trite to observe that in sentencing for multiple offences of dangerous driving, appropriate regard must be had to the consequences of the respondent's acts and that in terms of seriousness the greater the number of persons injured or killed, the graver the crime becomes." [5]
The level of notional accumulation, especially when combined with the length of the indicative sentences, was patently insufficient to recognise the death of two people and the grievous bodily harm of a third.
Further, the sentencing judge found special circumstances and set the non-parole period at 50%, a significant departure from the statutory ratio of 75% pursuant to s 44(2B) of the Crimes (Sentencing Procedure) Act 1999 (NSW). It is not clear the basis on which such a large departure was made by the sentencing judge.
It is well-established that a finding of special circumstances is a discretionary finding of fact with which this Court will be slow to intervene: Caristo v R [2011] NSWCCA 7 at [27]. As stated in Power v The Queen (1974) 131 CLR 623; [1974] HCA 26 at 628: "In a true sense the non-parole period is a minimum period of imprisonment to be served because the sentencing judge considers that the crime committed calls for such detention."
The importance of the non-parole period for the purposes of general and specific deterrence was conveniently summarised in Regina v M A [2004] NSWCCA 92; (2004) 145 A Crim R 434 at [33]: "…the purpose of fixing the non-parole period is not to convert a punishment into an opportunity for rehabilitation, but that the non-parole period should be the minimum period that the offender must spend in gaol having regard to all the elements of punishment, including the objective seriousness of the crime, deterrence and the subjective circumstances. Considerations which the sentencing judge must take into account when fixing the non-parole period are the same as those applicable to fixing the head sentence, although the weight to be attached to such factors and the way in which they are relevant differ due to the different purposes behind each function. A serious offence warrants a greater non-parole period due to its deterrent effect upon others, but the nature of the offence does not assume the importance it has when the head sentence is determined…Considerations of general deterrence are at least equally significant to both decisions which are, in any event, interrelated…". (Citations omitted.)
In Hejazi v R [2009] NSWCCA 282; (2009) 217 A Crim R 151 at [36] it was also stated: "…the ultimate question to be asked is what is the least period the offender is required to serve before being eligible for parole? The answer to that question will depend upon a consideration of all the purposes of punishment and not simply the rehabilitation of the offender."
It is also well-established that the reduction of the non-parole period by a finding of special circumstances cannot result in an overall non-parole period that fails to reflect the seriousness of the offence and both specific and general deterrence: Maglis v R [2010] NSWCCA 247 at [28]; R v West [2011] NSWCCA 91 at [56].
It is not in contest that the respondent's age, the impact of the COVID-19 pandemic on conditions of custody and his physical and mental health concerns would justify a finding of special circumstances. However, the sentencing judge also reduced the non-parole period because of the respondent's "requirement for supervision and assistance upon release from custody to reintegrate back into the community". There was no evidence before the sentencing judge to point to any significant or extensive rehabilitative needs.
In my opinion, the degree of departure from the statutory ratio to 50% resulting in a non-parole period of 2 years assisted in bringing about a non-parole period which was manifestly inadequate and did not reflect the criminality involved in this serious offending.
In light of all the above matters, whilst it is appropriate to make due allowance for the physical difficulties faced by the respondent as an older and more vulnerable man in custody, together with his mental health issues, his remorse and prospects of rehabilitation, those factors cannot be permitted to reduce the sentence to a point where general deterrence, specific deterrence and denunciation are not properly reflected in the ultimate sentence.
Ground 2 should be upheld.

Residual Discretion

Having found error under both grounds, it remains for the appellant to satisfy the Court that it should not exercise its discretion to decline to intervene.
In this case, there was no delay in the institution, service or listing of the appeal. The sentence was delivered on 5 May 2022. On 10 May 2022, the respondent was notified by the appellant that the institution of a Crown appeal was being considered, and the Notice of Appeal was filed on 1 June 2022 and served on the respondent on the following day. The conduct of the appellant before the sentencing judge did not contribute to the errors now relied upon. To the contrary, the appellant made detailed oral and written submissions in relation to all the matters now relied upon by the appellant.
The respondent, on the other hand, contends that the residual discretion not to interfere should be exercised. He states that this was not a case where the appeal needs to be allowed to correct some special idiosyncrasy of the sentencing by this particular judge or to clarify or promulgate some special principle. The respondent acknowledges the relevance of general deterrence, but, in relation to the exercise of the discretion, points to the respondent's age of 61 years, his marriage of over 30 years, his public service in the army for 25 years, and that he is a father of two children and stepfather to three additional children. He also points to the deep antagonism towards him from two of his stepchildren as a result of the accident. In addition to this, the respondent points to his own physical challenges and his post-traumatic stress disorder for which he has been receiving psychiatric intervention. He also points to his statement to the author of the sentencing assessment report (also noted above) that, "I was in the driver's seat, I have to live with that for the rest of my life."
Whilst these are all cogent matters, in all of the circumstances, I am of the view that the appellant has satisfied the Court that it should not exercise its discretion to decline to intervene. The swift institution of the appeal combined with the success of both grounds of the appeal, the seriousness of the offending including the length of the journey over which others were exposed to risk, the respondent's background including his criminal history and traffic record, the acknowledged need for general deterrence, as well as specific deterrence, punishment and denunciation are such that the Court should intervene to increase the respondent's sentence to properly reflect those matters. The seriousness of the matter is even more significant given the tragic loss of two lives and the serious injury to a third person.

Resentence

Having found error, it is necessary to exercise the sentencing discretion afresh. Apart from the factual finding in relation to which error has been found concerning the length of the journey during which the public was exposed to risk under Ground 1 above, I adopt the factual findings of the sentencing judge. I find that the length of the journey over which the public was exposed to risk was 130 kilometres, and that it is relevant to the assessment of the respondent's culpability that the intended journey was 250 kilometres. I adopt the sentencing judge's findings in relation to the respondent's subjective case.
I would make a finding of special circumstances by reason of the physical and mental difficulties the respondent faces in custody, as well as the effect of COVID-19 on his custodial conditions for at least some of his period in custody.
In my view, the following sentences are indicated: 1. Count 1: 4 years' imprisonment; 2. Count 2: 4 years' imprisonment; 3. Count 3: 2 years and 6 months' imprisonment.
I would impose an aggregate sentence of 6 years and 6 months' imprisonment with a non-parole period of 4 years.
The orders I propose are as follows: 1. Allow the appeal; 2. Quash the sentence imposed on the respondent in the District Court on 5 May 2022 and in lieu thereof, sentence the respondent to a term of imprisonment of 6 years and 6 months with a non-parole period of 4 years commencing on 5 May 2022. The date the respondent is first eligible for release to parole is 4 May 2026.

Endnotes

Pursuant to s 5D of the Criminal Appeal Act 1912 (NSW).
A guideline judgment is defined under s 36 of the Crimes (Sentencing Procedure) Act 1999 to mean a judgment that is expressed to contain guidelines to be taken into account by courts sentencing offenders. It includes guidelines that apply to particular offences. Guideline judgments are no longer being promulgated following the introduction of standard non-parole periods. However, existing guideline judgments are still operative, as a policy decision was made not to introduce standard non-parole periods to offences covered by a guideline judgement: see Foaiaulima v R [2020] NSWCCA 270 at [16]-[27] (Johnson J) and at [127] (Rothman J).
Whyte at [214] (Spigelman CJ).
Whyte at [204] (Spigelman CJ).
"By reason of the combined effect of s21A(4) and s42A, and in light of the definition of what s37A authorises this court to do, sentencing judges are obliged, by force of statute, to 'take into account' a guideline judgment given by this Court. What was implicit in the 1998 Act is made explicit by the 2001 Act" Whyte at [65] (Spigelman CJ); see also Crimes (Sentencing Procedure) Act 1999 (NSW) s 36. 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: 22 December 2022

Crimes Act 1900(NSW)ss 52A(1)(c), 52A(3)(c), 319

Crimes (Sentencing Procedure) Act 1999(NSW)ss 3A, 21A, 36, 37A, 42A, 44(2B), 52A, s 36.

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