R v Sharp

Exhibit 1

1. I will now highlight some important elements in some of the documents which have been placed before me.
2. The offender was convicted of drive with mid-range PCA in 2003, when he was approximately 25 years of age. He was fined $800 and disqualified from driving for 6 months. Over the last 15 years, his traffic record consists of one exceed speed by not more than 10 kilometres per hour.
3. Mr Mobarrez read his victim impact statement in court. He spoke about the loss of his beloved wife Tamy and the impact the incident has had on his life and the life of his young son, who will only have faint memories of his mother. He told the court that not only was Tamy a wonderful wife, mother and daughter, but that she had been an early childhood educator who had influenced many of the youngest members of our community. He eloquently spoke of how her senseless death had caused his family continuing heartbreak and hardship. Tamy Mobarrez's death is a loss to us all, and we share in this family's grief, as we are less as a society without her thriving amongst us. On behalf of our community, the court expresses its condolences and sympathy to the Mobarrez family.
4. The Crown says that I can take into account the harm suffered by Mr Mobarrez and his son as set out in the victim impact statement as an aggravating factor on sentence for the section 52A(3)(c) offences, and he made an application pursuant to section 30(3) of the Crimes (Sentencing Procedure) Act 1999 (the Sentencing Act) on the basis that the impact of Tamy Mobarrez's death on the members of her immediate family, is an aspect of harm done to the community. No submissions were put to the contrary by Mr Steirn, who appeared on behalf of the offender.
5. I will take into account all of these matters when sentencing the offender. I note that it is not in dispute that the deceased's son suffered the injury set out in the facts above, and that Mr Mobarrez suffered injuries that included a broken wrist, knee and thigh and a crushed foot. He has endured multiple operations including a recent one for a bowel obstruction.
6. Dr Perl's opinion has already been noted, as has Senior Constable Davenport's with respect to the mechanical functioning of the offender's vehicle at the time of the accident.
7. The offender's ERISP, in my opinion, is significant in that at an early stage he was frank to police about his intake of pharmaceutical and other drugs to the extent that he had a memory of events leading up to the accident. I will further address this matter later in this sentence judgment.
8. The notes of the Milton Ulladulla Hospital record that the offender was brought there by ambulance in a confused, disoriented and shocked state with a fluctuating Glasgow Coma Score (GCS). The notes of the Shoalhaven District Memorial Hospital also record a fluctuating GCS, that he was disoriented to time and place, and that he had retrograde amnesia. The notes are consistent with the offender's evidence before me.

Exhibit 2

1. Dr Perl provided an additional report in reply to that of Dr Robertson, which is addressed below. She agrees with him that the effects of psychoactive drugs are dependent on many factors including dose, blood concentration, route of administration, time of dose, tolerance due to regular use and also due to the interaction between drugs. She says that even if the accused was using alprazolam prn (as needed) up to a maximum of four 2 mg tablets daily (that is 8 mgs per day), his blood concentration was well above that dose and that he would have been driving impaired.

Exhibit 3

1. Dr Michael Robertson reported on behalf of the offender on 4 December 2018. Dr Robertson notes that the acute psychoactive effects of drugs, such as alprazolam, cannabis and oxycodone typically last for a period of 4 - 6 hours post-administration. He says that the mere presence of a drug in the blood of a driver does not in and of itself mean that the drug must have impaired the driver to the extent that it caused or contributed to a crash, although it is a possibility. In Dr Robertson's opinion, the alprazolam was at a concentration that would be regarded as higher than the usual therapeutic concentration and would reasonably lead to impairment in a non-tolerant individual. He says that in the absence of other reasonable explanations, the concentration of alprazolam, possibly in combination with cannabis, would have been sufficient to cause impairment of driving, including an increase in reaction time, loss of concentration or fatigue.

Exhibit 4

1. Dr Roberts's report of 21 January 2020, with respect to the offender, summarises the health conditions of the offender's daughter. Dr Roberts observes that she has dystonic quadriplegic cerebral palsy which has caused her profound disabilities. She requires 24-hour care. After the birth of his daughter in April 2014, Mr Sharp could not continue to work as he had to assist with the care of his daughter. In his opinion, as a consequence of the circumstances surrounding his daughter's birth and her subsequent disability, Mr Sharp is suffering from: 1. Major depressive disorder; 2. Post-traumatic stress disorder; and 3. Benzodiazepine abuse for which he is receiving ongoing treatment.
2. Mr Sharp reported panic attacks and insomnia, stated that he feels remorse and has flashbacks to "everything going on". He has limited recollection as to what occurred at the time of the accident, when he was taking the prescribed medication alprazolam (a benzodiazepine central nervous system depressant and anxiolytic which has addictive potential). Dr Roberts notes that the offender's blood serum levels were consistent with the consumption of 14 rather than 4 tablets of alprazolam, and that ecstasy and marijuana were also found on analysis. Mr Sharp commented that he had never been warned about the potential of alprazolam to interfere with driving. The offender was unaware of how many tablets of alprazolam he had consumed prior to the accident, which Dr Roberts says is consistent with the side effects of that drug, and he refers to the (then) current Monthly Index of Medical Specialities (MIMS) Annual, which speaks of transient amnesia or memory impairment reported in association with its use.
3. The offender previously worked as a painter and tradesman. At the date of the interview, he was a full-time carer for his daughter who chokes on her saliva, cannot be left alone, and suffers from epilepsy. Mr Sharp told Dr Roberts that they had commenced medical negligence proceedings, that the case was settled, and that he, his wife and his daughter were awarded damages, his daughter's damages being placed in trust. The offender believed that his daughter has a life expectancy of 27 years (or 21 years remaining). He and his wife each receive a carer's wage from the sum of money awarded to their daughter.
4. At the date of examination, the offender was taking diazepam instead of alprazolam, mirtazapine, and Lyrica.
5. Dr Roberts is of the opinion that the risk of psychiatric problems arising in the offender's wife would be exacerbated if she was to be placed in a position of having to care for her child on her own. Dr Roberts is further of the opinion that if the court sentenced the offender to a custodial sentence, it would be impossible for the offender's wife to care for the child herself.
6. Dr Roberts refers to the National Disability Insurance Report (see below) which states that the offender's daughter has complex, high level needs. Her physical deficits comprise of: 1. Unable to walk and is therefore wheelchair bound; 2. Variable muscle tone in the upper and lower limbs; 3. Poor core control; 4. Poor neck control; 5. Double incontinence; 6. Scoliosis; 7. Exaggerated clinical reflexes; 8. Epilepsy; 9. Asymmetric hip movements; 10. Spasticity in lower limbs; 11. Visual impairment; and 12. Difficulty with swallowing.
7. Dr Roberts reported with respect to Mr Sharp's wife, on 21 January 2020. She is a native of Indonesia, has limited English, and has no friends or relatives in Australia. She told Dr Roberts that she does not trust others to care for her daughter and that if she leaves her daughter with others, she screams. Her daughter has no communication ability. She requires percutaneous endoscopic gastrostomy (PEG) feeding. She must be constantly rotated or she will develop bedsores. The offender and his wife are assisted by another carer for about 10 hours per week. She is paid for 12 hours per week for care and her husband is paid for 10 hours per week. Her daughter was now 17 kg and required two people to lift her.
8. The offender's wife reported that she panics very quickly and is apprehensive about her daughter's health. She is constantly tired. She stated that she and her husband fight constantly and she expressed concern about his ongoing use of marijuana. She stated that her marriage was not good and that she would leave if not for her daughter.
9. Dr Roberts provisionally diagnosed the offender's wife with an Adjustment Disorder with anxiety and depression or Post-traumatic Stress Disorder. He notes that the provision of care to a severely disabled child imposes a significant strain upon carers and that the additional burden of having her husband in custody will increase the likelihood of her decompensating under such stress, which will in turn compromise her ability to provide ongoing care for her child.
10. In her report of 23 September 2015 with respect to the offender, and prepared for the purposes of the medical negligence proceedings, Dr Lana Kossof psychiatrist notes that after his daughter's birth, the offender began to abuse benzodiazepines and pain killers in an effort to "escape" from his predicament. Initially his general practitioner gave him diazepam and he then started using increased quantities. His (other) prescription drug use escalated, and he started to smoke marijuana on and off.
11. The offender reported that prior to the birth of his daughter, he had not been depressed or anxious. In Dr Kossof's opinion, the offender was suffering from a Major Depressive Disorder, Posttraumatic Stress Disorder and Benzodiazepine Abuse, all of which arose as a consequence of his daughter's birth.
12. Ms Luca, psychologist, reported with respect to the offender in the medical negligence proceedings on 27 February 2017. She gives some details about the offender's daughter's birth complications. Following her birth, the offender experienced multiple symptoms of generalised anxiety, all connected to the trauma surrounding his daughter's birth, resuscitation, ventilation and the events which followed. He had continuing anxiety about his ability to care for his daughter.
13. Ms Luca reports that there were two episodes of the offender taking an excess amount of over the counter or prescription medication when he felt overwhelmed and highly distressed by panic, anxiety and feelings of helplessness. Mr Sharp stated that he was prescribed antidepressant medication after his daughter was born but felt little or no benefit. After being prescribed alprazolam in late December 2016 /early January 2017 he stated that he felt significant benefit and could function better.
14. Ms Luca's report of 14 March 2017, with respect to the offender's wife, notes that she likewise suffered a deterioration in her mental state due to the complex and chronic nature of her daughter's medical issues and permanent disabilities.
15. The report of Ms Davies physiotherapist dated 28 August 2019 notes the offender's daughter's diagnoses of dystonic quadriplegic cerebral palsy on a background of hypoxic ischemic encephalopathy. She has microcephaly, with global developmental delay, exaggerated primitive reflexes, visual impairment and epilepsy. She is cared for by her parents and requires full assistance in all activities of daily living and has difficulty maintaining an upright posture and sitting. She requires support for sitting, or sits in her wheelchair which has supports. Without supports, she will slump forward and to the side.
16. The report of Ms Sant, occupational therapist, dated 10 September 2019 and prepared as a Paediatric NDIS Review Report, states that the offender's daughter requires her parents to carry out all tasks and activities of daily living. She requires equipment to allow her to be transferred in a safe manner and to increase the safety for her parents when caring for her. Ms Sant is of the view that the offender's daughter's care needs are very high and it is important that funding be considered for support in the home environment to prevent carer burnout for the parents. She sets out a detailed table of goals, practical strategies and requirements for the future.
17. A detailed NDIS Needs Assessment Report was prepared by Ms Erin Pavy, occupational therapist on 13 May 2019. She says that the offender's daughter requires two-person assistance with most of her daily tasks, due to her low muscle tone and need for constant supervision. She experiences seizures throughout the day and requires constant monitoring by a carer. She cannot be left alone at any time. Ms Pavy confirms that the offender's daughter currently receives a significant amount of unpaid care from her parents who are both at risk of carer burnout due to the complex nature of the care that their daughter requires. Additionally, both parents have suffered injuries as a result of caring for their daughter, which reduces their ability to provide adequate care.
18. The offender's daughter is an NDIS participant. She became a participant on 19 January 2018 but had not been issued with her first plan at the date of the report. The delay was caused by an inability to provide supporting documentation to the National Disability Insurance Authority (NDIA) regarding the offender's daughter's compensation as a result of "sealed court documents". The claim for compensation was settled and damages paid in April 2018.
19. At the date of the report, all manual handling was completed by manually lifting the offender's daughter, who will continue to grow. She has limited control of her body and limbs, and often moves involuntarily during lifts. At other times, she is a dead weight. She is unable to assist with any transfers. She is unable to walk and presents with profound cognitive and communication difficulties. She has very limited expressive or receptive language skills. She uses crying and screaming to express negative emotions. It is common for her to spend the majority of her day crying or screaming and will only settle with directed one-to-one attention and soothing. If attention is diverted away from her, she will resume screaming until attention is returned, which results in a need for her parents to constantly provide one-to-one attention to their daughter, which is emotionally exhausting. The offender's daughter has limited success with others comforting her. Her mother is regularly required to attend the school which her daughter attends irregularly to comfort her daughter. She becomes extremely anxious when her parents leave her side which triggers her screaming. She is on significant medication, all administered by a syringe through her PEG. Bathing and dressing require assistance from two people, as her muscle tone makes it difficult to adequately support her positioning while attempting to dress her. For example, she requires a person to support her neck and head during any movement of her torso. Without two-person assistance during dressing she is at risk of falling from the bed.
20. The offender's daughter cannot chew foods. She has irregular sleep patterns. She experiences seizures approximately five times per night. During a seizure, she will wake up and she will take time to settle afterwards. She sleeps in her bedroom with her mother sleeping in her bed beside her. She is unable to fall sleep alone, and requires constant monitoring of her seizure activity. The parents report that their daughter achieves, at best, three hours of un-interrupted sleep per night. I observe that the offender's daughter clearly requires active overnight care.
21. In Ms Pavy's opinion, the offender's daughter requires constant care from two people to assist with all personal activities of daily living, domestic duties, community access and participation and meaningful activity. She is unable to sit, stand, walk, and has very limited head control. She is unable to form words verbally. She experiences challenging behaviours including constant crying and frequent seizure activity. The combination of these symptoms means that her care regime is physically and emotionally demanding.
22. Ms Pavy concludes that the offender's daughter's current needs equate to an annual cost of approximately $254,000, of which approximately $171,000 is attributable to care. For the purpose of making the calculation, Ms Pavy assumes that the parents will provide the second person assistance a majority of the time (at a reduced or no cost).
23. With respect to the references, I note that Mr Howscroft states that the birth of his daughter was upsetting and harrowing for Mr Sharp. He says that the offender's character and demeanour have changed. He believes that Mr Sharp understands the pain he has caused to the victims and the burden he has created for his own family. Mr Asmussen states that Mr Sharp has expressed significant regret for causing the death of one passenger, and serious injury to the other occupants of the vehicle. Ms Alison Sharp observes that the birth of her granddaughter changed the offender. She says that her son feels a great deal of sadness and remorse for the accident.
24. A short video of the offender's daughter was viewed in court. This video assisted the court by illustrating the quantity and quality of care that the offender's daughter requires, and the significant role that Mr Sharp plays in administering that care. The video also demonstrated the love and affection that Mr Sharp has for his daughter.

Exhibit 5

1. The SAR notes that the offender said that at the time of the offending, he was exhausted, under severe stress and not sleeping. At the time of the offences, he did not know what to do and felt like it was a nightmare. Mr Sharp said that he was prescribed medication for his mental health issues and for back pain. He said he had not been informed that he should not drive a vehicle while under the influence of alprazolam.
2. The offender said that he feels constant guilt every day due to the offending. He acknowledged that he had crushed the victims' family. The offender was assessed at a low risk of reoffending.

The Offender's Evidence

1. The offender gave lengthy evidence before me. To the extent that I am able to make findings on account of his demeanour, I found him to be a truthful witness who made appropriate concessions, and made statements against his interest. He confirmed much of what is said in the documentary evidence about his daughter's condition and the day-to-day care he provides for her. The offender confirmed his use of alprazolam in the years following his daughter's birth and he conceded that he occasionally smokes cannabis as a sleep aid and to assist him with his anxiety. He recalled that on the day of the accident, his daughter was sick and that he and his wife were fighting. He believes that he was going to drop off the special milk that his daughter needs to his mother's home. He could not recall anything out of the ordinary that day or consuming excessive amounts of alprazolam, although he conceded that he must have. He also conceded that it was likely that he smoked marijuana the night before the accident and that he had taken an ecstasy tablet some days earlier at a party, which he said was the first such gathering he had attended since the birth of his daughter.
2. Mr Sharp could not recall the accident. He stated that he was very remorseful and that he still feels sick thinking about a child growing up without a mother.
3. In cross-examination, the offender said that he had not made any preparations for alternative care arrangements for his daughter in the event that he went into custody.

Dr Roberts's Evidence

1. In evidence before me, Dr Roberts noted that new people were being introduced into the offender's daughter's life as she is attending school, and that she has a part time carer who provides some assistance. He noted that the offender's daughter had already bonded with both her parents and that consistent carers are preferable. He was of the view that the offender's daughter would become distressed if one or other of her parents was absent and that she is able to differentiate between care given by a parent and a stranger.

Alison Sharp's Evidence

1. In evidence before me, the offender's mother Ms Sharp recounted the care that must be provided to her granddaughter every day. She stated that although her granddaughter attends a special school, she is often sick and in reality only attends 2-3 times a week and often has to leave early.
2. Ms Sharp also described the change in the offender's behaviour since her granddaughter's birth and how, to her observation, he now suffers from overwhelming and crippling anxiety. She said that the offender is anxious, depressed and rarely socialises. He has told her that he cannot forgive himself for what he did to another family.
3. Ms Sharp takes care of her granddaughter for 3-4 hours each Sunday as respite for the offender and his wife, during which time they usually attend to household chores. Often her granddaughter will get distressed, as she wants to be with her parents.
4. I find, on the balance of probabilities, that as a result of the traumatic birth of his daughter, the offender suffered a psychiatric illness variously described in the medical reports, and what the offender understands is an Anxiety Disorder. I find that as a result of his psychiatric illness, he required and was prescribed psychotropic medication in the form of, inter alia, alprazolam. At the time of the accident subject of these proceedings, he was abusing that drug which caused him to be impaired whilst driving.
5. I find also that the offender's daughter requires the complex care as set out in the report of Ms Davy. She often requires the assistance of two persons, and will do so for the rest of her life. That the offender's daughter has qualified for the NDIS indicates that to me that the award of damages she received does not adequately cover the care she requires. I make those findings on the balance of probabilities.
6. I note that I was greatly assisted by the thoughtful oral and written submissions of Mr Steirn SC on behalf of the offender and Mr Todd on behalf of the Crown.

Dangerous Driving

1. The Crown submits that Mr Sharp's moral culpability is high and that he has demonstrated a clear abandonment of responsibility, by reason of the fact that he chose to drive after consuming the drugs which were detected in blood and urine samples taken shortly after the collision. He drove whilst he was impaired on alprazolam.
2. It is not suggested that the offender was travelling beyond the speed limit.
3. The Crown says that an assessment of the offender's moral culpability is relevant to determining whether a custodial sentence should be imposed, as well as to determining the appropriate length of the sentence. He submitted that it was the central inquiry, rather than the subjective circumstances of this particular case. Even where the offender has not abandoned responsibility, he submitted it does not follow that a full-time custodial sentence can be avoided.
4. Mr Steirn conceded that a full-time custodial sentence will ordinarily be appropriate in a case of dangerous driving occasioning death or grievous bodily harm absent highly exceptional circumstances, or where the offender has a low level of culpability
5. In R v Musumeci (unreported 30 October 1997 NSWCCA), Hunt CJ at CL discussed the approach to be taken in sentencing for like cases. His Honour said that a number of considerations must be taken into account, including that the legislature has always placed a premium upon human life and the taking of a human life by driving a motor vehicle dangerously is to be regarded as a crime of great seriousness. Thus the real substance of the offence is the dangerous driving in association with the taking of a life. Due to the need for deterrence in these cases, the courts should tread carefully in granting leniency for good character, and it should be given less weight on sentence. Further his Honour said that the case in which a sentence other than one involving full-time custody will be rare.
6. In R v Whyte (2002) 55 NSWLR 252, the court recognised the discretion given to a judge at first instance but set out a typical case and suggested a guideline penalty. In that case at [214], Spiegelman CJ observed that "a custodial sentence will usually be appropriate unless the offender has a low level of moral culpability, as in the case of momentary inattention or misjudgement." The greater the degree a driver abandons their responsibility to others on the road, the greater their moral culpability and the more serious the offence, which impacts on penalty.
7. In Whyte, a frequently recurring case was said to have the following characteristics: a young offender of good character with limited or no prior convictions, death or permanent injury to a single person, the victim was a stranger, that there was limited injury to the driver or his intimates, there was genuine remorse, and there was a plea of guilty of limited utilitarian value. Recurring aggravating factors included: the extent and nature of the injuries inflicted, the number of people put at risk, the degree of speed, the degree of intoxication or of substance abuse, erratic or aggressive driving, competitive driving or showing off, the length of the journey during which others were exposed to risk, the ignoring of warnings, escaping police pursuit, the degree of sleep deprivation and the failing to stop.
8. There are some differences and similarities in the present case. As to the characteristics in the frequently recurring case, here the offender is not young, there was serious permanent injury to more than a single person and, in my view, the offender's plea of guilty at an early opportunity had utilitarian value. As to the frequently recurring aggravating factors, here there was no speed, no erratic or aggressive driving, no competitive driving, there was no ignoring of warnings, no escaping police pursuit, no failing to stop and there is no evidence of sleep deprivation.
9. Mr Steirn submitted that Whyte no longer represents the law as a guideline judgment in relation to sentencing in such offences. He said that the principles of sentencing in relation to dangerous driving offences needs to be revisited in light of legislative changes introducing intensive correction orders (ICO) and Court of Criminal Appeal decisions with respect to ICOs as an alternative to full-time custody. I do not accept that submission. Whyte is a guideline rather than a "tramline", and not a starting point but a reference point: R v Errington (2005) 157 A Crim R 553 at [40]. I retain a sentencing discretion which must be informed by proper principle.

Objective Seriousness

1. I find that the offender's abandonment of responsibility lies at above the mid-range of objective seriousness for each of the offences. Mr Sharp chose to drive when he had consumed a toxic level of alprazolam, evident in the blood and urine samples taken shortly after the collision, and which caused his driving to be impaired. He made the choice to drive of his own free will. It was not an emergency situation. The fact that there were other drugs in his blood and urine samples, in my opinion adds to his moral culpability, although, there is no evidence that they added to his impairment. The fact remains that he chose to drive after consuming those drugs prior to the event, which in my view demonstrates an abandonment of responsibility.
2. In coming to my conclusion, I note that Mr Sharp was driving on a road with which he was familiar and that there is no suggestion that he was speeding. However, this was more than momentary distraction or inattention, because the offender drove whilst impaired on prescription medication. This was dangerous, and he abandoned his responsibility as a driver.
3. I also take into account the legislative guideposts of the maximum penalties for the three offences.

Plea of Guilty

1. The offender pleaded guilty to all three counts. He did so at the earliest opportunity and is entitled to a 25% discount for the utilitarian value.

General Deterrence

1. The Crown submits that general deterrence is of great significance in sentencing for dangerous driving cases.
2. In R v Manok [2017] NSWCCA 232 at [78]-[79], Wilson J reiterated the importance of general deterrence, explaining that this was "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". The risk that any driver could commit an offence resulting in death or severe injury means that all drivers must be deterred from driving dangerously by the sentences imposed on those who transgress.
3. The Crown further submits that as the offence before the court involves the ingestion by Mr Sharp of a prescribed drug (alprazolam) to the extent that it affected his driving ability, and there is evidence that he had at sometime prior to the event ingested other prescribed and illicit drugs, there is a particular need for any sentence imposed to adequately reflect the principle of general deterrence.
4. In R v Carruthers (2008) 182 A Crim R 481 at [29]-[31]. McClellan CJ at CL emphasised the fact that holding a driver's licence is a privilege, and that the use of alcohol (or in the present case pharmaceuticals) significantly increases the risk to other drivers on the road.
5. Mr Steirn submitted that general and specific deterrence play little role in sentencing the mentally ill, and that it is clear that in the present matter, on the objective evidence, that in the months leading up to the incident the offender was suffering from a major depressive illness. Thus, he submits that general deterrence should play no part.
6. In my opinion, the factors set out in DPP v De La Rosa [2010] NSWCCA 194, are to some extent present here. In particular I find that the state of the offender's mental health (and his abuse of alprazolam) likely contributed to, and is linked to the commission of the offences. The offender gave evidence that he could not recall much about the offending and that he was in a terrible mental state at the time. He has long standing mental health issues which have not been appropriately treated. In my opinion, whilst the offender's moral culpability is somewhat reduced, it does not exculpate him. I accept that general deterrence is less of a factor in this exercise, which will be reflected in the sentence I will impose.

Personal Deterrence and Prospects of Rehabilitation

1. The Crown submits that in this case, specific (or personal) deterrence is also relevant in the sentencing of Mr Sharp for these matters, as the evidence discloses that the offender has, at least since 2015, had either an addiction to or dependence on both prescribed medication and illicit drugs and that he was driving whilst impaired with a toxic level of alprazolam. He says that any sentence should have an element of deterrence in respect of Mr Sharp's use of drugs and then driving a motor vehicle.
2. As I have said, the offender has longstanding, untreated and complex mental health issues, and on balance they arise out of the birth of his severely disabled daughter. I find this reduces the significance of specific deterrence.
3. As to his prospects of rehabilitation, I find on the balance of probabilities that the offender has reasonable prospects, in particular after he has accessed appropriate treatment for his mental health issues.

Remorse

1. The offender has taken responsibility for the offending. He pleaded guilty immediately to the charges, notwithstanding an absence of a clear memory of the details. When the offender addressed the court, he acknowledged the harm and damage he caused. I accept that he has genuine remorse for his actions, and that the day of the accident will be forever on his conscience.

Prior Criminal History

1. The offender has a limited history of driving offences. I do not consider that the offender's criminal or driving record is an aggravating factor on sentence. Neither, however, does it assist him.

Family Hardship and Exceptional Circumstances

1. Mr Steirn submits that the offender's daughter is profoundly handicapped and relies entirely on the offender and the offender's wife for her needs and continued existence, as a result of medical negligence at the time of the birth of the child. The extent of the child's disabilities is apparent from the video exhibited in the proceedings and the various reports.
2. Mr Steirn relies on R v Maslen (1995) 79 A Crim R 199, which he said dealt with a similar factual issue in relation to exceptional circumstances, and where the child of the offender was severely disabled, and suffering from duchennes muscular dystrophy. Although Mr Steirn acknowledged the difficulty in comparing facts in decided cases, he submitted that the offender's daughter is in a worse medical condition than the child in Maslen. He says that it follows that highly exceptional circumstances have been demonstrated in this case which would allow the court to deal with the matter other than by way of a full-time custodial sentence. As the law then stood in Maslen, the appellant was re-sentenced to periodic detention, which he submitted is a lesser penalty than an ICO.
3. The Crown submitted that any hardship caused to family/dependents by full-time imprisonment is only taken into account in highly exceptional cases where the hardship goes beyond the sort of hardship that inevitably results when the breadwinner is imprisoned: R v Edwards (1996) 90 A Crim R 510; R v Grbin [2004] NSWCCA 220; R v X [2004] NSWCCA 93.
4. The Crown submitted that the fact that young children will be left without a carer as a result of the imposition of a gaol term is not normally considered an exceptional circumstance: R v Byrne (1998) 104 A Crim R 456 at 464; R v Sadebath (1992) 16 MVR 138; R v Errington [1999] NSWCCA 18 at [29]-[30].
5. The Crown further submitted that whilst the situation Mr Sharp and his wife find themselves in is unfortunate, it is not so exceptional a circumstance to warrant a non-custodial sentence being imposed. If the court is of a view that the circumstances are 'exceptional', then the Crown submits that it can be reflected by adjusting any non-parole period.
6. The law with respect to exceptional circumstances and mercy is well known, and the cases were referred to in argument and are noted above. Generally, hardship to third parties will not impact sentencing, although on rare occasions it will be a relevant consideration, but must not overwhelm other sentencing considerations. Each case will depend on the seriousness of the crime, the need for general deterrence, and the nature and degree of the impact of the sentence to the third person(s).
7. In my opinion, the offender has demonstrated exceptional circumstances, and I propose to reflect them in the structure of the sentence I will impose upon the offender. I observe that in this case, the sentencing considerations, to paraphrase the court in R v Hopkins [2004] NSWCCA 105, appear incompatible with one another. It is not necessarily the case that the end result must constitute an averaging of them.

Totality

1. A court sentencing an offender for more than one offence must determine the appropriate sentence for each individual offence and then consider questions of accumulation or concurrence bearing in mind the principle of totality. The effect of the totality principle is to require me, having assessed all individual sentences, to stand back and consider whether the overall sentence to be imposed is just and appropriate and reflects the overall criminality of the offending.
2. This in turn requires consideration to be given to whether the sentences to be imposed for each offence should be concurrent or cumulative. Here, on one view, the offending constituted a single episode of criminality. In my opinion, there ought to be some degree of concurrency.
3. I have also considered the principle of proportionality.

Licence Disqualification

1. The offender must be disqualified from driving. The disqualification will be stayed whilst he is in custody. I accept that not having a license will also cause hardship to the offender's wife and daughter. Notwithstanding that comment, in my opinion the offender has forfeited his right to drive for a lengthy period.

Threshold

1. Both the Crown and Mr Steirn agreed that the section 5 threshold (of the Sentencing Act) has been crossed. There is no doubt that is so.

Time in Custody

1. The offender has spent no time in custody referrable to these offences.

Sentence

1. To paraphrase Hulme J in R v Smith [2016] NSWCCA 75 at [18] and [19], sentencing in a case of this type is amongst the most difficult judicial tasks. As Haesler SC DCJ said in R v McKeown [2013] NSWDC 22:- In matters such as this, judges are asked to perform an impossible equation. No life can ever be equated with a period of imprisonment, no gaol term can return a loved one, and a life should never be measured simply by the punishment meted out to the offender.
2. I have taken into account the various purposes of sentencing under s3A of the Sentencing Act. They include ensuring an offender is punished for his or her conduct, deterring crime, protecting the community, promoting an offender's rehabilitation, making an offender accountable for his or her actions, denouncing an offender's conduct, and recognising the harm done to victims of an offence in the community.
3. As the High Court said of s3A in Muldrock v The Queen (2011) 244 CLR 120 at [20]: The purposes there stated (in s3A) are the familiar, overlapping and, at times, conflicting, purposes of criminal punishment under the common law (Veen v The Queen (No 2) at [476-477]). There is no attempt to rank them in order of priority and nothing in the Sentencing Act to indicate that the court is to depart from the principles explained in Veen v The Queen (No 2) [at 476] in applying them.
4. The instinctive process of sentencing requires consideration of the relevant facts and circumstances as they are known to the court, including the facts surrounding the commission of each offence, matters affecting relative seriousness, the offender's subjective circumstances and other aspects which bear upon the question of sentence, including the guideposts of the maximum penalty and the standard non-parole period and the factors referred to in s21A of the Sentencing Act. The sentencing court is required to identify the factors relevant to the sentencing discretion and then to make a value judgment as to the appropriate sentence in all the circumstances (Markarian v The Queen [2005] HCA 25).
5. In determining an appropriate sentence I have kept in mind that there are three offences for which the offender is to be sentenced, one carrying a maximum sentence of ten years, and the other two carrying a maximum penalty of 7 years.
6. I intend to proceed to sentence the offender by way of an aggregate sentence pursuant to s53A of the Sentencing Act (NSW). I have been mindful to ensure that the aggregation of the sentences reflects an appropriate measure of the total criminality involved. Taking all matters into account, as I am satisfied that no alternative other than a sentence of imprisonment is appropriate, the next step is to determine the aggregate sentence in the quantitative sense. Having considered all of the matters I have referred to in this sentence judgment, I impose an aggregate sentence of imprisonment for 4 years.
7. The offender's counsel cavilled for an ICO in all of the circumstances. I note that an ICO is available only if the sentence of imprisonment is 3 years or less. It may be made in respect of an aggregate sentence of imprisonment, but the aggregate term must not exceed 3 years: section 68(2) of the Sentencing Act. It is not available in these circumstances.
8. In R v Fangaloka [2019] NSWCCA 173, the court discussed the effect of the competing purposes of sentencing on the consideration of whether a sentence of imprisonment should be served in custody or by way of an ICO. It was observed, at [67] that:- There will remain cases in which the significant element of leniency contained in an ICO is inconsistent with the imposition of an adequate penalty, so that an ICO is an unacceptable form of imprisonment.
9. In my opinion, even had an ICO been available, in this case a period of full-time custody is the only appropriate penalty.
10. As required by s53A(2)(b) of the Sentencing Act, the indicative sentences I would have imposed are as follows: 1. For the offence of dangerous driving occasioning death, contrary to section 52A (1)(c) of the Crimes Act, I would have imposed a sentence of 3 years, less a 25% discount bringing the sentence to 2 years and 3 months. 2. For the first offence of dangerous driving occasioning grievous bodily harm contrary to section 52A(3)(c) of the Crimes Act (Hamidreza Mobarrez), I would have imposed a sentence of 2 years, less a 25% discount bringing the sentence to 18 months. 3. For the second offence of dangerous driving occasioning grievous bodily harm contrary to section 52A(3)(c) of the Crimes Act (Mr Mobarrez Junior), I would have imposed a sentence of 22 months, less a 25% discount (rounding down) bringing the sentence to 16 months.
11. The non-parole period will be the minimum period of imprisonment to be served, having considered the crimes committed and the purposes of sentencing. It must also reflect the necessity that sentencing in such cases reflect the seriousness of the departure of responsibility as a road user. However, the prospects of the offender's rehabilitation and his ultimate adjustment to life after custody, and the needs of his wife and child are matters that I take into account.
12. Taking into account the extraordinary circumstances and hardship, I deviate from the statutory ratio for the non-parole period from 75% to 30%, and (rounding down), I impose a non-parole period of 1 year and two months.

Orders

1. Mr Sharp, please stand.
2. You are convicted of the offences of: 1. Dangerous Driving Occasioning Death contrary to s 52A(1)(c) Crimes Act 1900; 2. Dangerous Driving Occasioning Grievous Bodily Harm contrary to s 52A(3)(c) Crimes Act 1900; and 3. Dangerous Driving Occasioning Grievous Bodily Harm contrary to s 52A(3)(c) Crimes Act 1900.
3. You are sentenced to an aggregate term of imprisonment for 4 years.
4. I impose a non-parole period of 1 year and 2 months.
5. The sentence will commence today 3 July 2020 and will expire on 2 July 2024. You will be eligible for release on parole on 2 September 2021.
6. You are disqualified from driving for 12 months, the disqualification to commence on your release to parole.
7. Mr Sharp, do you understand the orders I have made?

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: 03 July 2020