R v Smith, Jarad

Court of Criminal Appeal (NSW)|2016-04-28|Before: McCallum J, Hulme J, Schmidt J, Callum J

Judgment

McCALLUM J: I have read the judgment of R A Hulme J. The reasons stated by his Honour reflect my own reasons for joining in the order dismissing the appeal.
R A HULME J: Jarad Michael Smith ("the respondent") was sentenced by his Honour Judge McClintock SC in the District Court at Sydney on 13 November 2015 for two offences of aggravated dangerous driving causing death. He asked the judge to take into account his guilt for a further offence of failing to stop and assist after a vehicle impact causing death.
The maximum penalty for aggravated dangerous driving causing death is imprisonment for 14 years: s 52A(2) of the Crimes Act 1900 (NSW). There is also a mandatory period of licence disqualification of 3 years. An offence of failing to stop and assist after a vehicle impact causing death carries a maximum penalty of imprisonment for 10 years: s 52AB(1) of the Crimes Act.
The learned sentencing judge imposed an aggregate sentence of 7 years with a non-parole period of 4 years. His Honour indicated that if he had imposed individual sentences for the offences they would have been 6 years 3 months for one (taking into account the additional offence) and 6 years for the other.
The sentence was specified to commence on 19 September 2015. It was backdated to take into account a period of pre-sentence custody, the applicant having been refused bail on 15 December 2014. He was granted very strict conditional bail in the Supreme Court and was released on 6 February 2015.
The Crown appeals against the sentence pursuant to s 5D(1) of the Criminal Appeal Act 1912 (NSW) on the ground that it is manifestly inadequate.
A mandatory period of disqualification from driving applies to each of the offences pursuant to Ch 7 Pt 7.4 Div 1 of the Road Transport Act 2013 (NSW). The sentencing judge made a disqualification order when the matter came back before him on 25 November 2015. At the hearing of the appeal there was a discussion about whether the disqualification order was correctly made pursuant to the provisions of the legislation (see in particular s 206A). However, as the Crown appeal was not concerned with the disqualification period no more needs to be said about it.
At the conclusion of the hearing the Court ordered that the Crown appeal be dismissed. The following are my reasons for joining in the making of that order.

The offences

The facts of the respondent's offences were undisputed. He went to a Christmas party at his work place at Rozelle on Saturday 13 December 2014. Between 9.30pm and 11.00am the following day he had numerous alcoholic drinks (beers, vodka and shots of tequila); he snorted two "lines of cocaine"; and he had a drink that he said he was later told was "spiked with ice" although in fact it was likely spiked with ecstasy.
At 11.05am on Sunday 14 December 2014 the respondent drove his car along Victoria Road, Rozelle; a mixed commercial and residential area. He had a P2 (green) provisional licence and was not allowed to drive with any alcohol in his system. Traffic conditions were medium, the weather was fine and sunny and the road was dry. The car had no mechanical faults.
After driving for about a kilometre the car mounted the kerb when travelling at about 30 to 40 km/h. 47 year old Catherine Pracy and her partner, 49 year old Gary Kelley were walking along the footpath. The respondent's car collided heavily with them. Ms Pracy died instantly and Mr Kelley suffered critical head and internal injuries. He never regained consciousness and he died that evening.
Immediately after the collision the car hit a large pot plant and the side of a building before pulling sharply back onto Victoria Road into the bus lane where it came to a stop further down the road. Bystanders approached. The respondent got out of his car and appeared to one witness as "dazed and almost in shock". He then ran away. He was found a short distance away seated behind some tall plants in the back yard of a home in a nearby street. He was mumbling and slurring his words, his eyes were glassy and he smelt of alcohol. He admitted hitting the victims, said he was sorry and offered his phone so that police could be called. On arrest soon afterwards he immediately admitted his offences, revealed that he had consumed drugs and expressed his remorse.
Testing revealed he had a blood alcohol concentration at the time of the collision within a range of 0.179 to 0.239 with the most likely concentration being between 0.201 and 0.210. Dr Judith Perl (a pharmacologist) said that for all people with that blood alcohol concentration there would be a very substantial impairment of driving ability. Low levels of prohibited drugs detected on testing would not have significantly affected the respondent's driving ability aside from increasing his level of drowsiness after the stimulatory effects diminished.
The respondent was interviewed by police. He said that he did not remember being in the car at all; the last thing he remembered was walking towards it with some companions. The next thing he remembered was being breath tested. When asked about his level of intoxication he said "11 out of 10, I was pretty drunk".
The judge noted that in the respondent's evidence in the sentence proceedings he said that prior to the collision he had been "tooted" at a set of lights. His Honour concluded that this indicated he had fallen asleep. He further concluded that the respondent had fallen asleep moments later, immediately before the impact.
His Honour also noted the respondent's evidence that he became fearful of the understandable reactions of the bystanders who were upset and angry and were screaming and swearing at him. The respondent had said that he was in shock and became fearful of what might be done to him and that is why he ran away; not so as to avoid a breath test but because he was intimidated.

The impact of the offences

The judge received family victim impact statements from Ms Louise Miller and from Erica and John Binder, the sister and the parents of Catherine Pracy. The depth of grief and despair they have experienced is impossible to imagine. Words can scarcely describe it. The family, friends, and anyone who knew them have obviously paid a heavy price for the loss of Catherine Pracy and Garry Kelley in such tragic and inexcusable circumstances. There is no suggestion that McClintock SC DCJ was unmindful of this.
Sentencing in cases such as this is probably one of the hardest tasks that befall a judicial officer. Haesler SC DCJ observed in R v McKeown [2013] NSWDC 22 at [5]: "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."
However, Parliament tells judges through s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW) that the purposes of sentencing include providing for adequate punishment, recognising the harm done, denouncing the offender's conduct, making him or her accountable for what was done, and deterring the offender and others. Judges, of course, have a sworn (or affirmed) duty to apply the law as provided by Parliament. As Haesler SC DCJ went on to observe in R v McKeown at [17]: "While every Judge has an individual sentencing discretion, that discretion must be informed by proper principle, and those principles should be applied consistently."

The personal circumstances of the respondent

The respondent was 22 years old at the time of the offences. He attained a provisional driver's licence at the age of 20. He had no previous convictions or infringements for driving offences. He had no previous criminal convictions.
Ms Danielle Hopkins, a clinical psychologist, assessed the respondent and her report was tendered in the sentence proceedings. The history provided by the respondent included that he was the youngest of four children. His father committed suicide when he was aged two. He grew up in a Department of Housing block of flats in Randwick where he was exposed to an antisocial environment of drugs, alcohol and aggression but his mother was protective of him.
The respondent achieved below average marks at school. He was diagnosed with ADHD at about the age of 13 and was prescribed Ritalin. He described being bullied at school. He became rebellious in his mid-adolescence. He was suspended from high school on three occasions. After he attained his School Certificate in Year 10 he was asked not to return. He undertook some apprenticeships; ultimately commencing an apprenticeship in carpentry which led to his employment in the position he was in at the time of the offences. After being released on bail he worked as a volunteer in a canteen for the homeless and occasionally in demolition.
The respondent has had one serious relationship. He lived with his partner for about a year. He found the end of the relationship traumatic and he returned to live with his mother. He used alcohol to cope. He described binge drinking on a weekly basis. He told Ms Hopkins that he had not consumed alcohol since the offences. (I note that it was a condition of his bail that he not consume alcohol.)
The judge noted that the respondent had limited experimentation with illegal drugs prior to the offending which his Honour thought made his use of drugs on that occasion out of character. He had sought treatment for his abuse of alcohol. He said he was at a loss to explain his decision to drive in the state he was, claiming that he had never done it before. His Honour considered that from the regret and empathy he had expressed to Ms Hopkins he was clearly remorseful; he said at one point, "If I could change places with [the victims] I would. I'm so ashamed of myself."
The judge noted that the respondent had a history of anxiety attacks going back to when he was very young and he appeared to have developed post-traumatic stress disorder as a reaction to his offending. He also referred to Ms Hopkins having concluded her report with a series of recommendations for psychological management of the respondent in custody and in the community.
Another psychological report by Jane Maher and Christina Reid was tendered in the respondent's case. They had contact with him when he attended the Come In Youth Resource Centre soon after his release on bail in February 2015. He had self-referred for assistance with alcohol abuse. He said he was not currently drinking due to his bail conditions but added that he had no desire to do so. He had difficulty articulating his thoughts and feelings but it was noted that this improved over time. The report spoke of the work that had been done in helping the respondent to work through the consequences of the offences. He was described as being overwhelmed by the enormity of what had happened and how it had affected so many people. The report said that work on this subject will be long term.
Like the report of Ms Hopkins, this report included expressions of remorse by the respondent such as, "I wish I had died instead of the victims". He was considered to be greatly distressed knowing that he had caused the death of two people.
A letter by the respondent and nine character referees were summarised by the judge as confirming "his sincere remorse and contrition and the efforts he has made to rehabilitate himself, and his otherwise good character".
Referring to the respondent's evidence at the sentence hearing, the judge considered that he was sincere and that he presented in a manner that was consistent with the description of him in the reports. He gave a history of never driving whilst intoxicated which the judge accepted. He said his plan for the evening of the Christmas Party was to get a taxi home and he could not explain why he did not. He said he had no idea where he was going when he drove, or why he drove.
The judge also referred to the respondent's evidence as to his experience in custody when he was refused bail. He had been locked in a cell at the Surry Hills police station for 24 hours per day for 14 days before he was transferred to Long Bay where he witnessed a person being stabbed. It was described as the hardest time of the respondent's life but he was aware he had to go to gaol when sentenced.
His Honour accepted the respondent's evidence that he was devastated and ashamed of what he had done and that he knew that "sorry" was not good enough. It was found that the respondent was "profoundly sincere and empathetic".

Findings relevant to the assessment of sentence

The judge reduced the sentences by 25 per cent from what he would otherwise have imposed on account of the respondent's early pleas of guilty. That is long-established sentencing practice.
He took into account the respondent's lack of any prior record for driving or criminal offences and accepted that he was a person of otherwise good character.
The respondent's rehabilitation was found to be "well underway" and the judge noted the support he had in the community. His prospects of rehabilitation were considered to be "excellent".
Submissions by the Crown that the offences involved a "high degree of abandonment of moral responsibility" on the respondent's behalf were accepted. His Honour also accepted that there was a "need for a message to the community of a very strong degree of disapproval for the conduct involved". General deterrence was stated to be a "major factor" and a "fundamental consideration" in the assessment of sentence. Punishment and denunciation were also regarded as relevant factors.
Personal deterrence of the respondent and protection of the community (also included in the purposes of sentencing listed in s 3A of the Crimes (Sentencing Procedure) Act) were found to be less significant on the basis that his Honour considered that the respondent "appears to have been severely chastened and the process seems to have led to much greater maturity".
The judge found that the offence arising from the respondent leaving the scene without offering assistance was "towards the bottom of the range" of objective seriousness which did not contribute greatly to the respondent's moral culpability. This was a finding undoubtedly informed by his Honour's acceptance of the respondent's explanation.
The sentencing guideline judgments in R v Jurisic (1998) 45 NSWLR 209 and R v Whyte [2002] NSWCCA 343; 55 NSWLR 252 were considered with his Honour comparing the features of the typical case there considered with the facts of the case at hand. He noted (correctly with respect) that the guidelines are not prescriptive and there remained a need for the sentencing discretion to be exercised in a manner appropriately befitting the unique circumstances of the case at hand.
His Honour described the objective gravity of the two primary offences as follows: "[T]he objective gravity of driving a vehicle in the state in which the offender was, is high. He made a conscious decision to drive when he was highly intoxicated and barely capable of staying awake, let alone operating a motor vehicle with the necessary degree of caution or skill. He fell asleep moments after the journey began. From the moment he began driving, he was a danger to all road users and tragically to pedestrians."
In the light of this finding, his Honour also said: "Assessed only by reference to its objective gravity and moral culpability of the offender which is high, this offending would attract a very substantial term of imprisonment. Two lives have been lost in utterly unnecessary and catastrophic circumstances. However, there are in the offender's subjective circumstances, a number of matters that militate against a sentence of such severity that would be appropriate on the purely objective basis. I have mentioned some of these above. Included in these of course, are his excellent prospects of rehabilitation."
Other matters the judge identified as relevant to the assessment of sentence included the respondent's relative immaturity (although he immediately noted that this type of offence is often committed by young persons who need to be deterred), his family support, the mental health impact upon him (post-traumatic stress disorder), and the circumstances of his upbringing which had involved a degree of deprivation.
The Crimes (Sentencing Procedure) Act mandates (in s 44(2B)) that "the term of the sentence that will remain to be served after the non-parole period set for the aggregate sentence of imprisonment is served must not exceed one-third of the non-parole period, unless the court decides that there are special circumstances for it being more". The judge found that "there are special circumstances including his first custodial sentence, in combination with rehabilitation and accumulation, and his youth". I note that given a single, albeit aggregate, sentence was being imposed, there was in fact no accumulation. The Crown does not challenge this finding: see below at [56].
By way of conclusion, the judge noted the difficulties in sentencing in cases of this type but at the same time acknowledged the duty that reposed in him to send a strong message of deterrence: "It is never easy to send a young man to gaol for a considerable period of time, when he is a person who has never been in any significant trouble. However, one of the primary purposes of the law is to communicate that in circumstances like these, where you have driven drunk, there will be no escaping years and years of gaol. That is the unambiguous message of the law in this area … ."

Principles applicable to a Crown appeal against sentence

The written submissions for the Crown helpfully provided the following summary of principles applicable to Crown appeals against sentence: "A claim of manifest inadequacy requires the party advancing that complaint to establish that the sentences imposed were unreasonable or plainly unjust in a sentencing environment where there is no single "correct" sentence, and judges at first instance are to be allowed as much flexibility in sentencing as is consonant with the application of proper principle and consistency of approach: R v Dinsdale (2000) 202 CLR 321 at 325; Markarian v The Queen [2005] HCA 25; 228 CLR 357 at [25]; Hili v The Queen [2010] HCA 45, 242 CLR 520 at 538 [58]. It is acknowledged that the primary purpose of a Crown appeal against sentence is to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons, and that this Court in the exercise of its jurisdiction under s 5D Criminal Appeal Act 1912 retains a residual discretion to decline to interfere with a sentence even though the sentence is erroneously lenient: Green & Quinn v R (2011) 244 CLR 462; [2011] HCA 49 at [1]. It should be borne in mind that uniformity of sentencing is a matter of great importance in maintaining confidence in the administration of justice. Inadequate sentences give rise to a sense of injustice, not only in those who are the victims of the crimes in question but also in the general public and are likely to undermine public confidence in the ability of the courts to play their part in deterring the commission of crimes. To permit the Crown, as well as convicted persons, to appeal against sentences assists in maintaining confidence in the administration of justice: Everett v The Queen (1994) 181 CLR 295 at 306 per McHugh J."

Crown submissions and response

The Crown did not assert that there was any specific (patent) error disclosed in the sentencing judgment. However, it contended that there was latent error; the sentencing discretion must have miscarried because the sentence imposed: (i) fails to adequately reflect the objective criminality of the offences (which his Honour assessed as "high"); (ii) fails adequately to reflect the principle of general deterrence; and (iii) reflects an overly prescriptive approach to the guideline judgment in R v Whyte.
It was submitted that such errors were evident in each of the indicative sentences and in the resultant aggregate sentence. More specific submissions were made on the following topics.

The offence taken into account

The increase in the sentence for the first offence (3 months) was said to be a negligible reflection of the respondent's criminality even accepting the finding that it was towards the bottom of the range of seriousness. That finding, to my mind, was well open to his Honour given the factual finding that underpins it which is not challenged.
The respondent's evidence was to the effect that he did not run away to avoid a breath test and he was not hiding. The judge accepted that he was not trying to escape responsibility. He said, "it would appear that he was not acting rationally, being both fearful and in shock".
I am not persuaded that the increment of 3 months was an inadequate response in his Honour's discretionary assessment.

Regard to aggravating features

The written submissions for the Crown acknowledged the role that guideline judgments have in the sentencing process. Spigelman CJ said in R v Whyte (at [113]): "A guideline is to be taken into account only as a 'check' or 'sounding board' or 'guide' but not as a 'rule' or 'presumption'."
In R v Whyte, Spigelman CJ reiterated a number of aggravating factors he had identified in R v Jurisic and added two more. It was with obvious reference to these factors that the sentencing judge said: "There was no evidence of excessive speed or competitive driving. There was no evidence of ignoring any specific warnings not to drive although he must have been aware that he was intoxicated."
The Crown submitted, "when an offender was so heavily intoxicated that he could not even function properly it might be asked, 'what does it matter that he did not drive at high speed or for a long distance or take part in a drag race?'" This, it was contended, amounted to his Honour "focus[ing] so heavily on the absence of other aggravating features in assessing the respondent's moral culpability rather than upon the respondent's actual serious offending conduct".
I do not accept that the criticism is valid. As I read it, his Honour was simply identifying the aggravating features listed in the guideline judgment that were and were not present. Spigelman CJ referred in R v Whyte (at [228]) to the presence of one or more of the aggravating features tending to indicate that "the offender has abandoned responsibility for his or her own conduct". He said that another way of expressing such a conclusion is that "the moral culpability is high". That is what McClintock SC DCJ found in the present case (see above at [39]-[40]). Reference to some aggravating features being absent did not divert his Honour from reaching the correct conclusion.

Regard to subjective circumstances

Two criticisms were made of his Honour's treatment of the respondent's subjective case. First, reference was made to the portion of the judgment I have quoted above (at [40]). Secondly, it was said that his Honour "spent a significant portion of his Remarks addressing the respondent's subjective circumstances (ROS 6-14). I do not accept either of these criticisms. There is nothing wrong with what his Honour said in the passage I quoted earlier. It really amounts to a statement of the obvious. As to the second matter, the time it takes to say something is not a reliable guide to the importance the matter is assigned in the assessment of a sentence.
I note also that there was some tentativeness in the Crown's submission about his Honour's treatment of the respondent's subjective case in that it was expressed in the following terms: "It appears that his Honour may have concentrated too heavily on the respondent's subjective case" (emphasis added).

Finding of special circumstances

The Crown did not challenge his Honour's finding of special circumstances pursuant to s 44(2B) of the Crimes (Sentencing Procedure) Act which brought about a reduction of the non-parole component of the sentence from the usual three-quarters of the total term. It is the extent of the reduction that the Crown challenged on the basis that the non-parole period is "only 57% of the total term".
It was accepted that the extent of the reduction following a finding of special circumstances is discretionary: Spark v R [2012] NSWCCA 140 at [34]. Reference was made to the judgment of Johnson J in R v GWM [2012] NSWCCA 240 where his Honour (with the agreement of McClellan CJ at CL and Bellew J) said (at [118]): "As the decision of this Court in R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 (at 718 [65]) makes clear, the adjustment of the statutory ratio, after considering factors relevant to the fettered sentencing discretion, must lead to the imposition of a non-parole period which constitutes the minimum period which the offender should spend in custody having regard to all objective and subjective circumstances, including the objective gravity of the offence and the need for general deterrence. The non-parole period should constitute the least period which the Respondent ought be required to serve for his crime before being eligible for parole, having regard to all the purposes of punishment and not simply his rehabilitation: Hejazi v R [2009] NSWCCA 282 at [36]."
The Crown submitted that the 4 year non-parole period in this case was manifestly inadequate when regard is had to the findings by the judge concerning general deterrence and the "need for a message to the community of a very strong disapproval for the conduct". It was submitted that a more modest reduction of the non-parole period would still have met the needs identified in the judge's finding of special circumstances.
It was crystallised at the hearing of the appeal that the Crown's complaint was really devoted to the asserted inadequacy of the head sentence which had a flow-on effect in yielding what it says is an inadequate non-parole period. In any event, I proposed to examine the criticism in its terms.
The non-parole period is 4 years. If there had been no finding of special circumstances it would have been 5 years 3 months. The Crown accepts that the finding was open to be made. If the non-parole period had have been, say, 65 per cent, it would have been in the order of 4 years 6 months. At most, that signifies that the non-parole period is lenient, but not to a marked degree that amounts to discretionary error that calls for appellate intervention.

Application of the totality principle

It was common ground before his Honour that there was a need to partially accumulate the two sentences. The Crown submitted that the degree of notional accumulation of the two indicative sentences amounted to a period of 9 months.
The written submissions for the Crown cited the well-known authoritative statement of Howie J in Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41 at [27]: "In any event there is no general rule that determines whether sentences ought to be imposed concurrently or consecutively. The issue is determined by the application of the principle of totality of criminality: can the sentence for one offence comprehend and reflect the criminality for the other offence? If it can, the sentences ought to be concurrent otherwise there is a risk that the combined sentences will exceed that which is warranted to reflect the total criminality of the two offences. If not, the sentences should be at least partly cumulative otherwise there is a risk that the total sentence will fail to reflect the total criminality of the two offences."
The Crown submitted that the modest extent of the notional accumulation led to the imposition of an aggregate sentence that failed to reflect serious offending involving the death of two victims. It was said that the loss of one life brought about only an additional 9 months in the overall term and just over 5 months in the non-parole period.
Saying that there was a notional accumulation of 9 months assumes accumulation of the 6 year sentence upon the 6 year 3 months sentence. If it was the other way around, the accumulation was notionally 12 months. But that is probably just a quibble.
It is not really to the point to measure or estimate what "notional" accumulation there was. The key feature of the totality principle is the need to determine an appropriate total term of a sentence (or aggregate sentence) that is proportionate to the totality of criminality. That requires focus upon the primary issue in the appeal.

Is the aggregate sentence manifestly inadequate?

These were very serious offences on any view. The respondent's moral culpability for them was appropriately assessed by the primary judge as high. However, the Crown did not, either in this Court or in the District Court, contend that the offences fell in, or close to, the worst case category. To put that in context, a case found to be "close to the worst type" was R v Wright v [2013] NSWCCA 82; 229 A Crim R 245 where the offender drove with a blood alcohol reading of 0.157 at speeds between 163 and 197 km/h over a distance of over 38km until the car ran off a major highway killing a 16 year-old passenger and very seriously injuring his 14 year-old girlfriend. The offender had an "appalling traffic history" including four prior high-range drink driving offences as well as multiple instances of driving whilst disqualified or whilst his licence was suspended or cancelled.
The maximum penalty for an offence of aggravated dangerous driving causing death is 14 years. Judge McClintock SC assessed the appropriate sentence in each case as 6 years (putting aside the offence taken into account). In having regard to the maximum penalty, it must be borne in mind that the starting point before reduction on account of the respondent's pleas of guilty was 8 years.
Care is required in the use of comparable cases and sentencing statistics: see, for example, Wong v The Queen; Leung v The Queen [2001] HCA 64; 207 CLR 584 at 606 [59]; Hili v The Queen; Jones v The Queen [2010] HCA 45; 244 CLR 520 at 535 [48]; and the useful summary of principles provided by Bellew J in Skocic v R [2014] NSWCCA 225 at [19]-[20].
That said, a comparison with other cases may provide a guide as to the range of sentences that have been imposed in the past, although they do not fix "the boundaries within which future judges must, or even ought, to sentence. … They can, and should, provide guidance to sentencing judges, and to appellate courts, and stand as a yardstick against which to examine a proposed sentence": Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1 at 70 [304] (Simpson J (as her Honour then was)). These propositions were endorsed by the High Court in Hili v The Queen; Jones v The Queen at 537 [54] and in Munda v State of Western Australia [2013] HCA 38; 249 CLR 600 at 615 [39].
Simply to provide an illustration of how courts in the past have approached the sentencing task in serious cases of dangerous driving causing death it is worth mentioning two of the cases that were referred to at the hearing. R v Morrow [2009] NSWDC 78 was a case in the District Court involving a 40 year-old sole parent of a 12 year-old son with no prior criminal record and described by the sentencing judge as being of "excellent character". She tragically killed a husband and wife when she crossed to the wrong side of a highway when she had a blood alcohol reading of 0.161. Murrell SC DCJ (as her Honour then was) accumulated the two sentences for aggravated dangerous driving causing death by 12 months yielding a total effective sentence of 5 years with a non-parole period of 3 years. When this case was raised with senior counsel for the Crown her submission was that the sentence was "inadequate". There was no Crown appeal (but I draw nothing from that because there may be a variety of reasons why the Crown may not do so in the exercise of the prosecutorial discretion).
Gommesen v R [2012] NSWCCA 226 is another example of a tragic case of this type. The offender, who had a prior drink driving conviction, had been drinking alcohol at home, at a friend's house, and then at a party before he drove a car into a power pole and killed a passenger who was his half-brother. He had a blood alcohol reading of 0.172. The sentence of 4 years with a non-parole period of 2 years 6 months was held by this Court (at [60]) to be "within the broad range of penalties imposed for offences of this kind" and the appeal was dismissed. This was an appeal by the offender; not the Crown.
The written submissions by Mr Dhanji SC for the respondent referred to a number of other cases for the purpose of comparison: R v Skrill [2002] NSWCCA 484; Berg v R [2004] NSWCCA 300; R v Pevy [2004] NSWCCA 414; R v Smith [2005] NSWCCA 19; Lawrence v R [2007] NSWCCA 349; R v Millwood [2012] NSWCCA 2. It is to be kept in mind that cases involving Crown appeals prior to the enactment of s 68A of the Crimes (Appeal and Review) Act 2001 (NSW) on 24 September 2009 must be considered with some caution.
There is nothing to be achieved by spelling out a case by case review and comparison of each of them with the case at hand. It suffices to say that they are cases which, broadly speaking, have similarities with the present case in that they each involve serious examples of dangerous driving causing death. Viewing them in an overall and broad way they provide some measure of the types of sentences that have been passed in similar (not identical) circumstances.
Acknowledging the very limited utility of the statistics, those maintained by the Judicial Commission of New South Wales in respect of the offence of aggravated dangerous driving causing death indicate that a sentence of 6 years is 18 months above the median sentence that has been imposed in the 7 years to September 2015. An aggregate or total effective sentence of 7 years is a year above the median in the same period where an offender has been sentenced for more than one offence. (The latter is a less reliable indicator because it does not necessarily mean that the other offence(s) were of the same type.)
The judgment of McClintock SC DCJ reflects very careful consideration of all relevant aspects attending the assessment of sentence and the Crown does not assert any specific, or patent, error. His Honour was obviously and acutely conscious of the essential aspect of the offences being the tragic loss of the lives of two entirely innocent people. But his Honour was also required to pass sentence in accordance with well-established principles and not merely with emotion.
Senior counsel for the Crown was correct (with respect) to point out that a stern measure of punishment was required having regard to the fact that through his complete abandonment of responsibility by driving when grossly affected by alcohol the respondent caused not one but two deaths. She particularly emphasised the need for there to be a strong measure of general deterrence in order to discourage others who may be tempted to drive in a state in which they present a substantial danger to others.
The learned sentencing judge was alive to these matters; he said so plainly and clearly. But he was also required to take into account matters personal to the respondent. Pertinent matters that could not be ignored included his age, lack of prior driving or criminal offences, genuine remorse, his mental condition and his excellent prospects of rehabilitation.
The High Court has recognised more than once that "there is no single correct sentence" and that "judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies": Markarian v The Queen [2005] HCA 25; 228 CLR 357 at 371 [27].
I was not persuaded that the aggregate sentence imposed by McClintock SC DCJ failed to reflect the totality of the respondent's criminality. For the Crown to make good its assertion of manifest inadequacy it was necessary for it to establish that the sentence is "unreasonable or plainly unjust". I was not persuaded that when all relevant objective and personal matters are taken into account, the sentence can be so characterised. I consider that this conclusion is confirmed by the statistical material and comparable cases to which I have earlier referred.
It was for these reasons that I joined in the making of the order that the Crown appeal be dismissed.
SCHMIDT J: I agree with R A Hulme J.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 04 May 2016

Crimes Act 1900(NSW)ss 52A(2), 52AB(1)

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