R v Way

(a) The fact that the applicant completed Year 10 at Terrigal High School when living with his father and engaged in periodic employment due largely to his transient and drug affected lifestyle. There is reference to the applicant's history of poly-substance abuse and dependence claiming that the applicant commenced cannabis use at 12 years of age, alcohol and amphetamine use by 14 years of age and intravenous amphetamine use from 16 to 21 years of age before the commencement of heroin.

(b) The history of drug treatment programmes (being incompleted programmes). He had undertaken, subsequent to the collision on 6 February 2004, a pharmacotherapy intervention programme at Coopers Cottage, Campbelltown Hospital (commencing 16 April 2004).

(c) The applicant's expressions of remorse for his actions causing injury to the pedestrian victim.

(d) The opinion that the applicant had made significant effort in addressing some of the maladaptive behaviours that had contributed to his past offending. It concludes with the statement:- "His ability to sustain such change and not relapse in relation to drug use will be an ongoing endeavour."

Evidence rejected by the sentencing judge 61 The sentencing judge stated that whilst he accepted the facts set out in the quoted extracts from the Probation and Parole report, he rejected what he termed the "positive spin" concerning the expectation of the birth of the child and in doing so, in my opinion inappropriately, referred to what he described as the irresponsible conception of the child adding that he inferred from the facts in relation to the mother's other children "that she is incompetent as a mother". The sentencing judge then added the sentence "this compounds the offender's irresponsibility". 62 Whilst the applicant's past criminal history and history of poly-substance abuse was relevant to the sentencing task, I consider that his Honour's reference to the conception of the child and his observations as to the irresponsibility of the applicant and of his partner were irrelevant considerations to the task which he was required to undertake. 63 The second matter to which his Honour took exception were observations by the psychologist, Ms. Anita Duffy, in her report of 16 November 2004. His Honour referred, disapprovingly, to the psychologist's expressions of opinion as to the need for alternatives to imprisonment being considered and this, the sentencing judge stated, he regarded as "offensive" and rejected her opinions. I have considered whether and to what extent the psychologist entered into questions that were ultimately for the sentencing judge. I am of the opinion that the psychologist did, but, having reflected on the matter, I do not consider that this was improper. A psychologist may legitimately address what he or she considers, from a professional or clinical perspective, is necessary or desirable to enhance an offender's rehabilitation and for issues related to custodial matters to be raised in relation thereto. Such an opinion will be one amongst other matters that a sentencing judge will have regard to and give it such weight as he or she considers appropriate in the particular circumstances.

History of the proceedings - the plea of guilty 64 On 11 June 2004, a Court Attendance Notice was issued. The proceedings were delayed whilst the Director of Public Prosecutions sought a medical report concerning the injuries suffered by Mrs. Subotic. According to the written submissions on behalf of the applicant, throughout this period it was indicated by the defence that the applicant would be pleading guilty in the matter. The Director of Public Prosecutions determined that the matter should be dealt with in the District Court (following receipt of the report from Dr. Hodgkinson dated 6 January 2005). The applicant entered a guilty plea to the charge on 25 February 2005 at the Liverpool Local Court and was committed for sentence that day to the Campbelltown District Court. On this history, the applicant was entitled to the benefit of a discount on sentence for an early plea of guilty. 65 On 11 March 2005, the matter came before the Campbelltown District Court but the matter was unable to proceed as the pre-sentence report from the Probation and Parole Service was unavailable. On 22 April 2005, the matter came before Maguire, DCJ. when evidence was taken at the sentencing hearing. The sentence was, as earlier noted, handed down on 2 May 2005.

Periodic detention 66 The applicant was serving two sentences of periodic detention at the time that he was sentenced on 2 May 2005. These related to an offence of driving whilst under the influence of a drug and a re-determination of a suspended sentence which he had received on 28 August 2003 (on that date he was dealt with at the Liverpool Local Court in relation to an offence which occurred on 21 March 2005 of take and drive conveyance without the consent of the owner). He received a 12 month sentence, such sentence being suspended upon him entering bond under s.12, Crimes (Sentencing Procedure) Act 1999. 67 The driving under the influence matter occurred on 3 January 2004. On that occasion, the applicant was observed by police driving his Mitsubishi van in the car park at the Stardust Hotel at Cabramatta. He was stopped by police and a blood and urine sample was taken. A Court Attendance Notice was posted to the applicant on 25 March 2004 in relation to this matter (that is 19 days after the collision on 6 February 2004).

Relevant legal and factual matters 68 Before dealing with the discrete grounds in support of the application for leave to appeal, it is appropriate to identify the relevant legal and factual matters that provide what I consider to be the relevant framework of reference within which those grounds and the sentence imposed may be properly evaluated.

(a) The relevant legal factors 69 The provisions of s.52A are prefaced by the subheading: Dangerous driving: substantive matters. Those provisions form part of Part 3 - Offences against the Person, of the Crimes Act 1900. Section 52A(4) is in the following terms:- "s.52A(4) Aggravated dangerous driving occasioning grievous bodily harm A person is guilty of the offence of aggravated dangerous driving occasioning grievous bodily harm if the person commits the offence of dangerous driving occasioning grievous bodily harm in circumstances of aggravation. A person convicted of an offence under this subsection is liable for imprisonment for 11 years." 70 Section 52A(7), Circumstances of aggravation, so far as is relevant, provides:- "In this section circumstances of aggravation means any circumstances at the time of the impact occasioning death or grievous bodily harm in which:- (a) … (b) … (c) ... (d) The accused's ability to drive was very substantially impaired by the fact that the accused was under the influence of a drug (other than intoxicating liquor) or a combination of drugs (whether or not intoxicating liquor was part of that combination)." 71 The relevant context and principles by which these provisions were to be applied in the present case included the following:-

(a) The imposition of a sentence with respect to s.52A offences requires the exercise of a broad discretion taking into account all of the factors specified in s.21A of the Crimes (Sentencing Procedure) Act 1999 .

(b) In cases such as the present involving the aggravated version of an offence under s.52A of the Crimes Act 1900 :-

(i) an appropriate increment to the Jurisic guideline will be appropriate ( R. v. Jurisic (1998) 45 NSWLR 209);

(ii) in a case involving grievous bodily harm, this will mean that a full-time custodial head sentence of not less than two years is to be adjusted in an upwards direction: R v. Whyte (2002) 55 NSWLR 252, 287;

(iii) an increment is also appropriate in order to reflect the higher maximum penalty for such an offence and what will generally be a higher level of moral culpability involved in such an offence; 72 The guideline in Whyte (supra) focuses attention on the objective circumstances of the offence. The subjective circumstances of the offender, of course, also require consideration: per Spigelman, CJ. at 288.

(b) The factual context: the objective gravity of the offence 73 In exercising the court's broad discretion, the sentencing judge was required to focus upon the relevant objective circumstances. In the present case these included:-

(i) The applicant's moral culpability for the offence in question against the background of the events in the preceding month (3 January 2004) in which the applicant was driving his van whilst under the influence of prohibited drugs. The fact that at this time he acknowledged that it was serious and against the law to be driving under the influence of drugs, established a very high degree of moral culpability in then proceeding on 6 February 2004 to repeat such conduct by driving whilst under the influence of a combination of prohibited drugs causing serious injury to Mrs. Subotic.

(ii) The conclusion of Dr. Perl that the applicant was "well affected" and was "significant(ly) impaired" by the combination of prohibited drugs on 6 February 2004.

(iii) The extent and nature of the injuries (described in paragraph [57]) which he inflicted upon Mrs. Subotic, which underline the magnitude and seriousness of the offence committed by the applicant. 74 The legal and factual matters to which I have referred in paragraphs [68] to [73] guide the evaluation of the grounds relied upon by the applicant in determining whether or not, as is contended, the sentence was manifestly excessive and whether, as is also contended on behalf of the applicant, he should have been ordered to serve his sentence by way of periodic detention. 75 The objective circumstances of the offence and those relating to the offender's conduct clearly place this case in a category of the more serious offences of its kind, though not a worst case. In Jurisic (supra), Spigelman, CJ. referred to the history leading to s.52A and the perceived need for an increase in the maximum penalties for offences such as that involved here. The Chief Justice at p.227 noted:- "The Attorney-General went on to note that the increase in penalties was designed to more accurately reflect the seriousness of the offence with a view to convictions acting as a 'strong deterrent' … The level of community concern about the conduct proscribed by s.52A, as reflected in this substantial increase in the maximum penalties, must be reflected in the sentences which trial courts impose. The concerns manifested by Parliament in this way, must be given effect to by the courts."

Ground 1: His Honour erred in not allowing any discount on sentence for the guilty plea 76 The applicant contended that no discount was allowed for the applicant's guilty plea. Reliance was placed upon the following passage in the remarks on sentence:- "He has, of course, pleaded guilty. That has a utilitarian value which I would reflect in a 20% discount except that the relevant guideline decision R. v. Jurasic (sic) itself must be taken to have allowed such a discount." 77 In this passage, his Honour's reference was to the guideline judgment in Jurisic (supra) considered in Whyte (supra). 78 In R. v. Thomson & Houlton (2000) 49 NSWLR 383, Spigelman, CJ. at 419 observed that the standard case identified in Jurisic included a plea of guilty but that the case was concerned with a guilty plea of limited value:- "… the guidelines for the offences considered in those cases (referring to R. v. Jurisic and R. v. Henry ) should be understood to involve a late plea of guilty, for purposes of the application of a guideline promulgated in these reasons." 79 Counsel for the applicant who appeared on this application appeared before the sentencing judge on 22 April 2005 and drew his Honour's attention to the fact that the court in Jurisic was concerned with a plea of limited value. However, in relation to the sentencing judge's remarks made on 2 May 2005, I accept as correct the submission made by Mr. Watts of counsel on behalf of the applicant that his Honour's statement incorrectly proceeds upon the basis that the guideline in Jurisic made allowance for an early plea or a plea which would reflect a discount of 20%. This, I believe, is demonstrated by his Honour's qualifying use of the words "… except that the relevant guideline decision in R. v. Jurasic (sic) itself must be taken to have allowed such a discount". 80 Error having been disclosed, the question then arises as to whether or not it is an error which requires the intervention of this court. That is an issue to which I will return later in this judgment.

Ground 2: His Honour erred in finding that the applicant "did not apply his brakes until after the victim collided with his windscreen" 81 The written submissions on behalf of the applicant and the Crown raise the question as to whether the evidence does support his Honour's abovementioned statement. 82 I consider it is unnecessary to examine all of the evidence that bears on this issue for the factual question is tied up with another ground for the application (Ground 7) which was concerned with the contention that his Honour impermissibly had regard to an element of the offence as an aggravating factor. 83 In the remarks on sentence, his Honour stated that he had regard to the following four circumstances:-

(a) The serious nature of the victim's injuries and their enduring consequences.

(b) The degree of intoxication which is demonstrated by the fact that the offender did not see the red light and did not apply his brakes until after the victim collided with his windscreen.

(c) He was engaged in a journey which would have kept him on the road for at least 45 minutes and rendered him a potential source of danger to countless other users of the road.

(d) His interception by the police some weeks before these events and the tests carried out upon him must be regarded as a warning, which warning the offender chose to ignore, although the actual results were not available to him at the date of the offence for which he was sentenced. 84 The issue raised in Ground 2 is tied to the question of the degree of intoxication in (b) above. His Honour went on to state:- "These factors were present to a material degree and must be regarded as aggravating his crime. The last three mentioned factors are present in such a degree as to demonstrate an abandonment of responsibility. In my view, his then recently detected, albeit not yet punished drug driving offence, amounts to an additional aggravating feature for the purposes of the application of the guidelines laid down in R. v. Jurasic (sic)." 85 I will return to consider his Honour's use of these factors as, in his view, aggravating factors to the crime when considering Ground 7.

Ground 3: His Honour erred in coming to the view that the applicant had poor prospects of rehabilitation 86 The sentencing judge stated:- "… I regard this offender as having a poor prospect of rehabilitation. I do not ignore opinions expressed to the contrary by the psychologist. However, it appears to me that the offender has made poor choices about his life since he committed this crime. His basing of so much reliance on the advent of his child demonstrates to me a very poor decision in his part. For whatever reason, the mother of this expected child has surrendered the care of her two existing children to others. The offender's prospect of rehabilitation appears to depend upon a 'lived happily ever after' dream that he has constructed for himself. I have little confidence in its success." 87 The report of Ms. Duffy dated 8 April 2005 contained an analysis of the history and post-offence conduct by the applicant. Whilst I have already referred to his Honour's entitlement to reject the psychologist's opinion as to the appropriate nature of the sentence to be imposed, his Honour was not, in my opinion, entitled to reject out of hand the factual analysis otherwise contained in the report without identifying a proper basis for doing so. I make the same comment in relation to the Probation and Parole Service pre-sentence report dated 13 April 2005. The psychologist's report refers to objective progress in terms of a significant and measurable improvement in the applicant's attitudes and behaviour in relation to drugs and alcohol abuse and that the results were consistent with abstinence from all substances apart from his methadone maintenance. The report of 13 April 2005 refers to the significant effort that had been made by the applicant in addressing some of his maladaptive behaviour which had contributed to his past offending. It is noted in that report that his compliance on the methadone programme together with the pending birth of his first child and his fear of incarceration have all been significant contributors to his recent change in attitude and behaviour. The report states that it did appear that he had "initiated substantial change over the past six months". 88 Not only did the sentencing judge not identify a basis upon which these opinions were not to be accepted, but he appears to have based his rejection of the opinions expressed on the question of the applicant's rehabilitation prospects on what he termed "poor choices about his life since he committed his crime". That appears to refer to his Honour's earlier expressed view that the conception of the child, whilst the applicant was on bail, "was irresponsible". Whether this statement is to be characterised as a moral judgment on the applicant's behaviour and/or that of his partner or not does not require resolution. It is sufficient to say that that matter, as earlier indicated, was not a relevant consideration to the sentencing judgment which his Honour was required to exercise. 89 I accordingly accept that his Honour, in light of evidence to the contrary, impermissibly formed the conclusion that the applicant had poor rehabilitation prospects and failed, in particular, to identify any cogent basis or reason for doing so. I will return to consider the possible significance of this error in the overall assessment of the application.

Ground 4: His Honour erred in ignoring the reports of Anita Duffy, psychologist, and thus gave insufficient, or no weight to his subjective circumstances 90 I have already dealt with this matter in relation to the previous ground. 91 The court was required by s.21A(3) of the Crimes (Sentencing Procedure) Act 1999 to take into account in determining the appropriate sentence for the offence, as a mitigating factor:- "(h) The offender has good prospects of rehabilitation, whether by reason of the offender's age or otherwise, … 92 There was material before the sentencing judge which established that he did have prospects of rehabilitation. Whether they could be classed as "good prospects" within the meaning of s.21A(3) is perhaps debatable. His Honour's unsubstantiated conclusion, however, as to the applicant's poor prospect of rehabilitation is a matter which is to be borne in mind in determining whether this court ought intervene. It is a further matter which I will refer to later in this judgment.

Ground 5: His Honour erred in refusing to hear further evidence on 2 May 2005 93 Mr. Watts of counsel indicated to this court that he did not press Ground 5.

Ground 6: His Honour failed to take into account the evidence of contrition and remorse by the applicant for his actions and discount his sentence accordingly 94 The applicant gave evidence at the sentencing hearing. He expressed his remorse for Mrs. Subotic. More importantly, there was recorded in Ms. Duffy's report statements by the applicant which were supportive of the remorse that he had expressed. Additionally, there is recorded in the probation officer's pre-sentence report expressions of significant remorse for his actions in having brought about injury to Mrs. Subotic. 95 The weight, if any, to be given to such evidence, of course, is one matter. The dismissal or outright rejection of such evidence, in the absence of an identified basis for doing so, is another. In dealing with this aspect, his Honour stated:- "There are also in evidence a number of written testimonials that serve little purpose. I find that it is difficult to accept that this man is genuinely contrite. His expression of contrition seems to me to amount to little more than an expression of his fear of impending imprisonment." 96 His Honour did not identify any factual or other material which supported the last two mentioned expressions of opinion. The relevant provision in s.21A(3)(i) is in the following terms:- "(i) The offender has shown remorse for the offence by making reparation for any injury, loss or damage or in any other matter." 97 Other than the applicant's own evidence, there was no specific evidence in terms of this provision which demonstrated remorse. That said, it is not, in my opinion, appropriate for a sentencing judge to reject out of hand expressions of remorse unless there is an evidentiary basis for determining that they are either not genuine or are motivated by some extraneous or self-interested factor.

Ground 7: His Honour fell into error by having additional regard for aggravating features which were elements of the offence, or not made out by the evidence 98 There is no doubt that his Honour regarded "the degree of intoxication" of the offender as having aggravated his crime. That is precisely what his Honour stated. In R. v. McMillan [2005] NSWCCA 28, this Court gave consideration, inter alia, to the provisions of s.52A(4) of the Crimes Act. In his judgment in that case, Howie, J. (with whom Santow, JA. and Bell, J. agreed) emphasised the importance of identifying the relevant objective factor which is an element of the offence under the section. The "circumstances of aggravation" as defined in s.52A(7) include, so far as is relevant to the present case, "the accused's ability to drive was very substantially impaired …" (by virtue of the fact that the applicant was under the influence of the drugs in question). Mr. Watts of counsel contended that the evidence of Dr. Perl could not be relied upon as identifying anything in addition to the substantial impairment (which constituted the element of the offence) and which could be regarded as further aggravating the offence under s.52A(4). I am of the opinion that in that respect the submission is correct. 99 I have earlier referred to the description of the applicant's condition given by police as recorded in Dr. Perl's report which does suggest significant impairment. However, the impairment and the nature of the impairment established by the evidence in this case was, as I have stated, an element of the offence itself and could not be utilised as an aggravating circumstance in the way in which his Honour in this case did consider it. ("… must be regarded as aggravating his crime"). 100 One of the factors identified by Spigelman, CJ. in Jurisic (supra) was "degree of intoxication or of substance abuse". In McMillan (supra), Howie, J. stated (at [38]):- "… but the offence of driving under the influence, particularly where it is alleged that the driver has a blood alcohol reading over 0.15, is premised on the fact that to drive in such condition is dangerous to other persons on the road. It seems to me that there would be an element of double counting in finding that the offence was aggravated by those factors mentioned in Jurisic and Whyte , which was generally concerned with the danger posed to members of the public by the driving, and then to find that the offence is also aggravated because the driving was without regard to public safety." 101 I believe that the principle here referred to by Howie, J. is relevant to the point presently under consideration. 102 I do not consider that the sentencing judge erred in having regard to the other three factors ((a), (c) and (d)) in the extract which I have previously set out (see paragraph [83]). The serious nature of the injuries, in particular, and their enduring consequences were appropriately considered by his Honour in determining the level of seriousness of the offence in question. 103 Similarly, the exposure to danger of other users of the road by the applicant undertaking his journey was a factor his Honour was entitled to regard as an aggravating factor. 104 In relation to the fact that the month before the police had intervened by reason of the applicant's drug affected state, to my mind, indicates a very high level of moral culpability in the applicant at the time of the offence. I accordingly am of the view that his Honour was not only entitled, but was bound to have regard, to that circumstance as an aggravating factor. 105 At the sentencing hearing held on 22 April 2005, the applicant conceded in cross-examination that when he was "picked up" by police on 3 January 2004, the police spoke to him about his drug affected state by reason of the fact that they considered that he was in fact "drug affected" on that occasion. He was also asked:- "Q. If I can ask you these questions, when you were picked up - when police approached you in relation to that offence and spoke to you, before they charged you, did you consider at that stage that it was serious to be driving under the influence of drugs? A. Yes I did, but I didn't think, yeah. I knew it was against the law, I didn't think. Q. You knew it was against the law but? A. I didn't think, I kept on." 106 This evidence confirmed that at the date of the offence, the applicant had abandoned all sense of responsibility and knew that in driving on a busy road in his drug affected state on 6 February 2004 over the distance involved (approximately 18 kilometres) he was doing so illegally and necessarily involving a risk to others. Tragically, that risk materialised with very adverse consequences to Mrs. Subotic. In this respect I adopt the description given by Howie, J. in McMillan (supra) of the circumstances in that case, namely, that the applicant in driving in such a condition "was not simply irresponsible, it was seriously criminal".

Ground 8: The sentence imposed was manifestly excessive 107 I will consider this ground in relation to the errors in sentencing earlier identified. 108 I consider that the sentence imposed in this case effectively of five years imprisonment with a non-parole period of two years and six months, commencing 2 May 2005 was a substantial one. The question is whether taking into account all relevant factors it was manifestly excessive. 109 In McMillan (supra), Howie, J. examined the statistical information concerning sentences imposed for sentences contrary to s.58A(3) and for offences under s.52A(4). 110 The sentencing range for offences of the present kind may be determined by reference to the factors identified in McMillan by Howie, J. including, in particular, the following:-

• The maximum penalty for an offence under s.52A(4) is greater than that for a non-aggravated offence causing death, the maximum penalty for an offence under s.52A(1) being 10 years, the maximum sentence for an offence under s.52A(4) being 11 years.

• Parliament should be taken as being of the view that generally an offence under s.52A(4) is slightly more serious than an offence under s.52A(1), notwithstanding that the consequences of the driving will be less serious. Yet the statistics show that sentences for an offence under s.52A(1) are markedly more severe than those for an offence under s.52A(4): only 14% of head sentences are less than three years.

• It may well be the case that insufficient regard has been paid to the seriousness of the driving as reflected in the matters of aggravation specified in s.52A(7) and the increased penalties that the aggravated form of the offence attracts.

• In a case of an offence under s.52A(4), the sentencing judge was required to sentence the applicant for an offence of significant gravity before any other objective factor was taken into account.

• Particular factual findings relevant to the degree of moral culpability and abandonment of responsibility are required to be taken into account over and above the substantial impairment referred to in s.52A(7)(d) which, as earlier discussed, is an element of the offence.

• In particular, regard is to be had to those facts indicating the seriousness of the driving, its consequences and the applicant's record. 111 In McMillan, the circumstance of aggravation was one involving driving with in excess of the prescribed concentration of alcohol, that is, a blood alcohol reading of more than 0.15 (a blood alcohol reading of at least .170). A discount of 20% for the plea of guilty had been allowed by the sentencing judge. Howie, J. classified that case as a very serious instance of an offence under the section aggravated by the abandonment of responsibility by the respondent (aged 56 years) in determining to drive approximately 15 kilometres on a road on which he knew there might be drivers. He had been drinking alcohol at various times throughout the day prior to driving his vehicle. The sentencing judge had found the applicant's moral culpability in that case to have been high and that the applicant had abandoned responsibility. Those factual findings had to be taken into account over and above the fact that the applicant had had a reading of over 0.15. The applicant's offending under the influence of alcohol in the past, both generally and specifically in relation to motor vehicles, deprived him of any leniency. The injuries occasioned to the pedestrian were serious. It was an offence, although not the worst of its kind, coming within the upper range of offences of its type. 112 I consider that the facts and circumstances of the present case similarly warrant it to be classified as a very serious instance of an offence under the section but overall a little below the culpability in McMillan. Howie, J. considered that the appropriate starting point in McMillan would have been six years but that it should be moderated because of the existing range of sentences to five years. A discount of 20% reduced the sentence to four years. However, it is important to note that that case was a Crown appeal which required the moderated approach taken.

Determination 113 On the above analysis, the sentencing judge erred in terms of Ground 1 of the application (in failing to allow a proper discount for the utilitarian value of the plea of guilty) and in respect of Ground 7 (in taking into account the degree of intoxication as an aggravating factor when, on the evidence, the substantial impairment established by the evidence constituted an element of the offence). In relation to Ground 1, the sentencing judge determined the utilitarian value of the plea at 20%. The error poses the question whether a further 10% discount on sentence over and above the implicit discount in Jurisic should be allowed. I have additionally determined that the sentencing judge erred in his finding as to the applicant's prospects of rehabilitation and failure to have regard to the evidence of the psychologist and the Probation and Parole report, insofar as they were relevant to subjective circumstances and the failure to have regard to the evidence of contrition and remorse. 114 The ultimate question is whether, in terms of s.6(3) of the Criminal Appeal Act 1912, notwithstanding established error, this court is of the opinion that a less severe sentence is warranted in law and should have been passed. 115 In circumstances where material error has been established at a number of points in the remarks on sentence, this Court will carefully scrutinise the sentence in question in order to determine whether or not the result of the sentencing process, the sentence itself, has been so affected by such error or errors as to require the intervention of this court. 116 It is necessary for me to only briefly refer to the principles which govern the approach that this Court should take when error has been demonstrated in the sentencing process. In R. v. Simpson (2001) 53 NSWLR 704 at [79], Spigelman, CJ. observed:- "Sentencing appeals in this Court frequently proceed as if the statutory trigger for the quashing of a sentence were expressed as follows: 'if it is of the opinion that error has occurred in the sentencing process'. That is not the statutory formulation. By s.6(3), this Court must form a positive opinion that 'some other sentence … is warranted in law and should have been passed'. Unless such an opinion is formed, the essential pre-condition for the exercise of the power to 'quash the sentence and pass such other sentence in substitution therefor' is not satisfied." 117 In AB v. The Queen (1999) 198 CLR 111, Hayne, J. observed, inter alia, at 160 (paragraph [130]) that in cases where specific error is identified by an appellate court, the sentence imposed below must be set aside and the appellate court is then required to exercise the sentencing discretion afresh. His Honour further observed that the offender must be re-sentenced unless, of course, in the separate and independent exercise of its discretion the appellate court concludes that no different sentence should be passed. 118 In R. v. Johnson [2005] NSWCCA 186, Hunt, AJA. (Hulme and Johnson, JJ. agreeing), following reference to relevant authority (at [33]) observed that the mere existence of error in a sentence imposed does not permit this court to substitute another sentence for it unless such substituted sentence is warranted in law and should have been imposed. His Honour additionally observed (at [34]):- "… in cases where the error is apparent, the Court must first consider whether the sentence imposed is outside the appropriate range for the circumstances of the particular case unaffected by that error and, if it is, determine for itself what sentence is warranted in law in substitution for that sentence." 119 See also Douar v. Regina [2005] NSWCCA 455 per Johnson, J. at [80] to [123]. 120 In McMillan, Howie, J., referred to the statistical information which revealed that sentences for an offence under s.52A(1) had been markedly more severe than those for an offence under s.52A(4): aggravated dangerous driving occasioning grievous bodily harm, with only 14% of head sentences being less than three years. Howie, J. observed at [51]:- "It may well be the case that insufficient regard is being paid to the seriousness of the driving as reflected in the matters of aggravation specified in s.52A(7) and the increased penalties that the aggravated form of the offence attracts …" 121 Whilst specific error has been disclosed in the present matter, having regard to the objective seriousness of the offence and the applicant's moral culpability, which on any assessment of the facts was high, I do not consider that this court could conclude that the ultimate sentence imposed of five years with a non-parole period of two years and six months was outside the range for a case of this level of seriousness. I accordingly do not consider that this court could conclude that a less severe sentence is warranted in law and should have been passed. 122 I propose the following orders:-

(a) That the application for leave to appeal be granted.

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