R v Weldon

ns) Bill 2017 New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 11 October 2017 Category: Principal judgment Parties: Director of Public Prosecutions (NSW) (Appellant) Dean Weldon (Respondent) Representation: Counsel: M Millward (Appellant) T Evers (Respondent)

Solicitors: Office of the Director of Public Prosecutions (NSW) (Appellant) O'Brien Winter Partners (Respondent) File Number(s): 2022/00172083 Publication restriction: Nil Decision under appeal Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Citation: [2024] NSWDC 313 Date of Decision: 19 July 2024 Before: Anderson SC DCJ File Number(s): 2022/00172083

HEADNOTE [This headnote is not to be read as part of the judgment] The Crown appealed against the aggregate sentence imposed on Dean Weldon (the respondent) by Anderson SC DCJ on 19 July 2024 in the District Court of New South Wales. The respondent was sentenced following pleas of guilty to an offence of dangerous driving occasioning grievous bodily harm contrary to s 52A(3)(c) of the Crimes Act 1900 (NSW) and an offence of failing to stop and assist after vehicle impact occasioning grievous bodily harm contrary to s 52AB(2) of the Crimes Act. An aggregate sentence of imprisonment for 2 years and 4 months to be served by way of an Intensive Correction Order was imposed. The Crown appealed on three grounds: 1. the sentencing judge erred in finding that the moral culpability of the respondent was lessened; 2. the sentencing judge erred in his approach to the determination of an appropriate sentence by considering whether an Intensive Correction Order (ICO) should be made before determining the length of the sentence of imprisonment that should be imposed; and 3. that the aggregate sentence pronounced is manifestly inadequate. The Court held per Yehia J (Davies J agreeing, R A Hulme AJ agreeing on the grounds and in dissent on the exercise of the residual discretion), dismissing the appeal: As to ground 1, per Yehia J at [77]-[79] (Davies J at [1] and R A Hulme AJ at [170] agreeing): 1. The sentencing judge did not take into account the respondent's self-induced intoxication at the time of the offending as a mitigating factor contrary to s 21A(5AA) of the Crimes (Sentencing Procedure) Act 1999 (NSW). 2. The sentencing judge was entitled to take into account the interplay between the respondent's mental health issues, alcohol addiction and deprived childhood in assessing the respondent's moral culpability. Ground 1 is not made out. R v Millwood [2012] NSWCCA 2, applied. As to ground 2, per Yehia J at [85], [90]-[95] (Davies J at [1] and R A Hulme AJ at [170] agreeing): 1. While the sentencing judge should have explicitly set out the three-step approach to the imposition of an ICO in his Honour's remarks on sentence, his failure to do so does not demonstrate error. 2. There is abundant guidance available to sentencing judges with respect to the proper approach to the imposition of an ICO. The transcript of the sentence proceedings indicates that the sentencing judge was alive to the proper approach. Ground 2 is not made out. Stanley v Director of Public Prosecutions (NSW) (2023) 278 CLR 1; [2023] HCA 3; Zheng v R [2023] NSWCCA 64; R v Zamagias [2002] NSWCCA 17, considered. As to ground 3, per Yehia J at [115] (Davies J at [1] and R A Hulme AJ at [170] agreeing): 1. Notwithstanding the respondent's compelling subjective case, the aggregate sentence does not reflect the objective seriousness of the offending and the totality of the criminality involved. The aggregate sentence is manifestly inadequate. Ground 3 is made out. R v Sara [2020] NSWCCA 119; Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54; Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45; JM v R (2014) 246 A Crim R 528; [2014] NSWCCA 297; R v Hill [2020] NSWCCA 197, applied. Residual discretion Per Yehia J at [115], [155]-[156], [165]-[166], [168] (Davies J at [1] agreeing), exercising the residual discretion to decline to interfere with the sentence: 1. Even where a sentence is erroneously lenient, the Court retains a residual discretion to decline to interfere with the sentence. Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49; CMB v Attorney-General (NSW) (2015) 256 CLR 346; [2015] HCA 9; R v Rose [2024] NSWCCA 193, applied. 1. It has long been recognised that rehabilitation is better facilitated in the community. R v Speechley (2012) 221 A Crim R 175; [2012] NSWCCA 130; R v Pullen (2018) 275 A Crim R 509; [2018] NSWCCA 264; Mustafa v R [2021] NSWCCA 164; R v Merillo [2017] NSWCCA 173; R v Cahill [2015] NSWCCA 53, considered. 1. The evidence before the Court demonstrates a sustained commitment by the respondent to his rehabilitation and completion of his community work. The progress the respondent has made protects the community and meaningfully addresses specific deterrence. The respondent's rehabilitation would be interrupted and potentially derailed if he were now sentenced to a term of full-time imprisonment. It is in the public interest that his rehabilitation be allowed to continue in the community. R v Greaves [2014] NSWCCA 194; R v Manok [2017] NSWCCA 232; R v Pullen (2018) 275 A Crim R 509; [2018] NSWCCA 264, considered. Per R A Hulme AJ at [182], [188]-[191] in dissent: 1. In addition to rehabilitation of the respondent, most of the other purposes of sentencing in s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW) were relevant. There was a need to ensure there was adequate punishment; to make the respondent accountable for his actions; to denounce his conduct; and to recognise the harm that was caused. General deterrence was of undoubted and particular importance. All of these matters are in the "public interest". Their combined force outweighs the extent to which there is also an interest in the respondent's rehabilitation. R v Dunlop [2001] NSWCCA 435; R v Kyle [2014] NSWCCA 300; R v Harris [2015] NSWCCA 81; R v Price [2016] NSWCCA 50; R v Pullen (2018) 275 A Crim R 509; [2018] NSWCCA 264; R v Russell [2022] NSWCCA 294, considered. 1. The sentence imposed by the primary judge failed sufficiently to reflect these matters to such an extent that it is manifestly inadequate. It is so unreasonable and plainly unjust that it amounts to an affront to the administration of justice and there is a need for correction to maintain public confidence in the criminal justice system. Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49, applied.

JUDGMENT

1. DAVIES J: I agree with Yehia J.
2. YEHIA J: The Director of Public Prosecutions (NSW) ("the Crown") appeals against the sentence imposed on Mr Weldon ("the respondent") by Anderson SC DCJ ("the sentencing judge") in the District Court of New South Wales at Newcastle on 19 July 2024 pursuant to s 5D of the Criminal Appeal Act 1912 (NSW) ("Criminal Appeal Act"). The respondent was sentenced for one count of dangerous driving occasioning grievous bodily harm, contrary to s 52A(3)(c) of the Crimes Act 1900 (NSW) ("Crimes Act") and one count of fail to stop and assist after vehicle impact occasioning grievous bodily harm, contrary to s 52AB(2) of the Crimes Act.
3. Mr Weldon received a sentence of an aggregate term of imprisonment for 2 years and 4 months, to be served by way of an Intensive Correction Order ("ICO"). The maximum penalty for each offence for which he was sentenced is 7 years' imprisonment. Neither offence is subject to a standard non-parole period. The sentencing judge applied a discount of 25 per cent to each of the indicative sentences to reflect the utilitarian value of the plea. After the discount, in respect of the dangerous driving offence, his Honour specified an indicative sentence of 2 years' imprisonment, and for the fail to stop and assist offence, 9 months' imprisonment.

Grounds of Appeal

1. The Crown relies on amended Grounds of Appeal filed on 4 October 2024: "1. The sentencing judge erred in finding that the moral culpability of the respondent was "lessen[ed]". 2. The sentencing judge erred in his approach to the determination of an appropriate sentence by considering whether an Intensive Correction Order (ICO) should be made before determining the length of the sentence of imprisonment that should be imposed. 3. That the aggregate sentence pronounced is manifestly inadequate."

Circumstances of the Offending

1. The facts upon which the respondent was sentenced are contained in a "Statement of Agreed Facts". They can be summarised as follows.
2. The respondent was born in June 1993 and was almost 29 years of age at the time of the offending. The victim was 20 years of age. The respondent, the victim, a mutual friend, and others visited the Hunter Valley from Sydney over the weekend of 11 June 2022.
3. On 11 June 2022 at about 4:00pm, the three men attended at the Denman Hotel. The respondent was captured on closed-circuit television drinking eight and a half schooners of beer between 4:23pm and 8:37pm. The facts are silent as to whether the respondent continued to drink alcohol after 8:37pm. An incident occurred at the Denman Hotel and the respondent was asked to leave between 10:00pm and 11:00pm.
4. Sometime after the incident, the respondent, the victim and their friend left the Denman Hotel. They went to the car park and the victim went to the driver's side door of the respondent's Mitsubishi Colt motor vehicle. The respondent said to the victim, "it's my car, give me the keys or I'll slap ya". The victim handed the car keys over to the respondent. The respondent got into the driver's seat. The victim sat in the rear driver's side passenger seat. The friend sat in the front passenger seat. Both the respondent and the friend fastened their seat belts. The victim did not.
5. The respondent commenced driving towards the farmhouse where the three were staying for the weekend, initially at what is described as a normal speed. However, after taking a wrong turn, the respondent began to drive more recklessly, at about 75 kilometres per hour, which was about 25 kilometres per hour above the recommended speed limit for that portion of the road.
6. The respondent approached a right-hand bend near a railway crossing at speed. The motor vehicle drifted to the left. It then left the road and drove into a ditch, at which point the respondent lost control as he tried to swerve back onto the road. The vehicle hit three guideposts and a small warning sign, before mounting a raised bitumen section of the road and colliding with the front left side of a railway signal post. The vehicle became airborne and collided with a small wire fence, landing upside down with such force that its front grille was torn off and the left front wheel ripped away. The vehicle stopped 35 metres away from the end point of the skid mark which it had left on the road.

Remarks on Sentence

1. The sentencing judge considered the guideline judgment for offences of dangerous driving in R v Whyte (2002) 55 NSWLR 252; [2002] NSWCCA 343 ("Whyte"). His Honour noted the common features that often arise in such cases, as identified in Whyte at [204]: "A frequently occurring case of an offence under s 52A has the following characteristics. i. Young offender. ii. Of good character with no or limited prior convictions. iii. Death or permanent injury to a single person. iv. The victim is a stranger. v. No or limited injury to the driver or the driver's intimates. vi. Genuine remorse. vii. A plea of guilty of limited utilitarian value."
2. Where the features described above are present, a guideline as to the appropriate penalty was promulgated as follows (Whyte at [214]): "[214] … 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. … [228] In the above list of aggravating factors, items (iii)-(xi) are frequently recurring elements which directly impinge on the moral culpability of the offender at the time of the offence. Individually, but more often in some combination, they may indicate that the moral culpability is high. One way of expressing such a conclusion is to ask whether the combination of circumstances are such that it can be said that the offender has abandoned responsibility for his or her own conduct. That is not the only way of expressing such a conclusion. [229] … Where the offender's moral culpability is high, a full time custodial head sentence of less than three years (in the case of death) and two years (in the case of grievous bodily harm) would not generally be appropriate."
3. His Honour noted that a number of factors are set out in Whyte at [216]-[217] which may aggravate the objective seriousness of an offence. His Honour observed that the factors in the guideline judgment are not a checklist but merely describe a typical case. His Honour noted that these factors do not circumscribe the sentencing court's discretion.

Objective seriousness

1. Applying Whyte, the sentencing judge made the following observations and findings: 1. The respondent was 29 years old, which did not make him a young offender. 2. The respondent is a person of good character with no previous driving offences or other criminal offences. 3. The offending caused permanent injury to a single person who was known to the respondent. 4. There were no injuries to the respondent. 5. The respondent has shown genuine remorse. 6. The respondent entered an early guilty plea, which entitled him to a discount of 25 per cent on his sentence.
2. His Honour considered the aggravating factors referred to in Whyte and noted the following: 1. The injuries to the victim in this matter were life changing. 2. Three peoples' lives in the car were put at risk but no other members of the public were put at risk. 3. The speed was 50 per cent higher than the speed limit at that time on that road, "but at 75 kilometres per hour it would not be considered excessive". 4. There was a significant degree of intoxication, over three times the legal limit. 5. The length of the journey was relatively short. 6. There was a failure to stop and render assistance, but this is a discrete offence for which the respondent has been prosecuted, so the sentencing judge did not take it into account as an aggravating consideration for count 1.
3. The sentencing judge found that one of the most significant aggravating factors was the terrible injuries sustained by the victim. Another critical consideration was the respondent's blood alcohol reading.
4. The respondent gave evidence that he believed he may have killed the victim and that he fled the scene. His conduct made it impossible for police to obtain his blood alcohol reading at the time.
5. The sentencing judge noted however that the respondent did not leave the scene until he was aware that emergency services were on their way and that the other passenger was remaining on scene, which "mitigated his conduct" in respect to count 2.
6. The sentencing judge did not assess the objective seriousness of the offending by reference to a notional mid-point, noting that he was not required "to place on a spectrum from less serious to most serious where this matter falls on a range of objective seriousness".

Subjective case

1. The respondent gave evidence in the sentencing proceedings. He expressed remorse, stating that: "When the fire brigade and first responders showed up and started asking questions as to who was the driver I fled the scene purely out of fear and cowardice…".
2. In respect of how he felt after leaving the scene, the respondent stated: "I was ashamed of myself, disgusted by what I'd done, absolutely mortified".
3. Later, when asked about the victim impact statement and the gravity of the impact on the victim, the respondent stated: "I just feel absolutely terrible, I'm completely ashamed of myself. I'm so so sorry for what I've caused."
4. The sentencing judge accepted the respondent's expressions of remorse as genuine.
5. The respondent recognised he had a significant problem with alcohol and gave evidence that he had attended Alcoholics Anonymous meetings and engaged with a psychologist.
6. The sentencing judge expressed some scepticism about the respondent's recourse to treatment, remarking that "[a]ll of this positive conduct appeared 18 months after the offence and shortly before the matter was listed for a hearing…": at [51]. However, the sentencing judge accepted that the respondent had continued this treatment and had since taken on a role of responsibility within Alcoholics Anonymous. The sentencing judge stated that the respondent ought to be congratulated for his commitment to rehabilitation.
7. The respondent was employed and had been promoted to the role of site supervisor.
8. The respondent's background was gleaned from the report of Ms Paige Cornell, Psychologist dated 28 August 2023. The respondent was born in Ireland. The respondent's parents separated when he was young and his mother re-partnered a few years later. The respondent's stepfather lived with him for a short time, but the relationship between the respondent's mother and stepfather also ended.
9. The respondent's biological father struggled with problematic alcohol use which resulted in him being unpredictable and inconsistent in his conduct. His father often unexpectedly arrived at the house and would verbally abuse his mother. The respondent reported feeling scared of his father and stood up to him at around the age of 14 to protect his mother. The respondent and his father had minimal contact until his father died in 2018.

Determination of sentence

1. The sentencing judge had regard to the statement provided by the victim, which set out the ongoing devastation the collision has caused him.
2. The sentencing judge also noted the comparable cases and sentencing statistics placed before the Court, however found the sample size was particularly small and observed that statistics say nothing about objective criminality or the subjective features.
3. The sentencing judge considered accumulation, concurrency and totality, observing that the two offences required discrete punishment.
4. The sentencing judge was conscious of the statement in Whyte that a custodial sentence will usually be appropriate unless the offender has a low level of moral culpability, as in the case of someone who demonstrated momentary inattention or misjudgement. His Honour assessed the respondent's conduct as more than momentary inattention or misjudgement.
5. The sentencing judge concluded that both rehabilitation and general deterrence were of critical importance in this matter. Given the steps the respondent had taken to address his alcohol abuse in the community, the sentencing judge found that full-time detention was unlikely to address the respondent's risk of reoffending and would interrupt his rehabilitation. His Honour found that community safety would be facilitated by the respondent completing his rehabilitation. His Honour concluded that an ICO would better serve community safety than full-time imprisonment. The sentencing judge placed conditions on the respondent designed to ensure his ongoing rehabilitation and the protection of the community.

Crown Appeals

1. The primary purpose of Crown appeals against sentence is to "lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons": Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 ("Green") at [1] (per French CJ, Crennan and Kiefel JJ) quoting Griffiths v The Queen (1997) 137 CLR 293; [1977] HCA 44 at 310 [53] (per Barwick CJ). The purpose of Crown appeals against sentence extends to setting aside manifestly inadequate sentences to ensure uniformity of sentencing in order to maintain public confidence in the administration of justice: Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 ("Dinsdale") at [61]-[62] citing Everett v The Queen (1994) 181 CLR 295; [1994] HCA 49 ("Everett") at 306.
2. In Kramer v R; R v Kramer [2023] NSWCCA 152, McNaughton J (Davies and Hamill JJ agreeing) said: "[132] It was also observed in Green that cases might arise where the court concludes that the inadequacy of the sentence is so marked that it amounts to 'an affront to the administration of justice' which risks undermining public confidence in the criminal justice system. In such a case, a court is justified in interfering with the sentence: Green at [42] (French CJ, Crennan and Kiefel JJ)."
3. In a Crown appeal against sentence, the Crown is required to satisfy two tests. These two tests were described in R v Hernando (2002) 136 A Crim R 451; [2002] NSWCCA 489 as follows (per Heydon JA, Levine J and Carruthers AJ agreeing): "[12] … if this Court is to accede to the Crown's desire that the respondent be sentenced more heavily, it must surmount two hurdles. The first is to locate an [appealable] error in the sentencing judge's discretionary decision. The second is to negate any reason why the residual discretion of the Court of Criminal Appeal not to interfere should be exercised."
4. Firstly, an error of the kind identified in House v The King (1936) 55 CLR 499 at 505; [1936] HCA 40, must be established in the sentencing judge's discretionary decision.
5. Secondly, the Crown must negate any reason why the residual discretion of the Court not to interfere should be exercised: CMB v Attorney-General (NSW) (2015) 256 CLR 346; [2015] HCA 9 at [34] (per French CJ and Gageler J) and [56] (per Kiefel, Bell and Keane JJ) quoting R v Hernando at [12] (per Heydon JA, Levine J and Carruthers AJ agreeing). The discretion is residual only in that its exercise does not fall to be considered unless an error of the kind identified in House v The King is established: CMB v Attorney-General (NSW) at [33] (per French CJ and Gageler J) and [54] (per Kiefel, Bell and Keane JJ). Once the discretion is enlivened, it remains incumbent on the Crown as the appellant under s 5D to demonstrate that the discretion should be exercised: CMB v Attorney-General (NSW) at [33] (per French CJ and Gageler J).

Ground 1: The sentencing judge erred in finding that the moral culpability of the respondent was lessened

1. The Crown submitted that the sentencing judge erred by finding that the respondent's deprived childhood, major depression and alcohol dependence impacted the respondent's moral culpability: R v Weldon [2024] NSWDC 313 at [76] and [82].
2. The Crown submitted that the effect of his Honour's findings was to take into account the respondent's self-induced intoxication as a mitigating factor, contrary to s 21A(5AA) of the CSP Act.
3. Notwithstanding the sentencing judge's overt acknowledgement of s 21A(5AA) in his Honour's remarks on sentence, the Crown submitted that by drawing on the respondent's alcohol dependence to make a finding that moral culpability was diminished, his Honour was in substance taking self-induced intoxication into account, in combination with other factors, as reducing the respondent's moral culpability.
4. The Crown further submitted that the nature and the extent of the issues in the respondent's childhood and the respondent's mental health issues were not such as to diminish the respondent's moral culpability.
5. The Crown relied on the observation of Simpson J (Adams and McCallum JJ agreeing) in Aslan v R [2014] NSWCCA 114 at [34] that it does not follow that, because an offender suffers from some mental impairment or disability, his or her moral culpability is reduced. The sentencing court must examine the relevant facts in order to determine whether the mental condition has the consequence contended for. The Crown submitted that in this case, the matters referred to by the sentencing judge did not justify a finding that the respondent's moral culpability was lessened.
6. The respondent submitted that in concluding that the respondent's moral culpability was reduced, his Honour considered the respondent's subjective case and personal circumstances, including his background of having had an abusive alcoholic father, unresolved grief, and a history of suicidal ideation. The respondent submitted that his Honour was also relying on the report by Ms Cornell which found that the respondent met the criteria for a Major Depressive Disorder and Alcohol Abuse Disorder from 2018.
7. In oral submissions, Ms Evers on behalf of the respondent, submitted that the sentencing judge acknowledged that self-induced intoxication is not a mitigating factor. Instead, his Honour adopted Ms Cornell's opinion that it was the combination of all the identified factors, not just the respondent's intoxication, that operated to reduce, at least to some extent, the respondent's moral culpability. It was submitted that in this case, the assessment of moral culpability was a nuanced assessment, and the sentencing judge ultimately had regard to the combination of factors in the respondent's deprived background.

Determination

1. Section 21A(5AA) of the CSP Act stipulates that self-induced intoxication cannot be taken into account as a mitigating factor in sentencing. The section provides: 21A Aggravating, mitigating and other factors in sentencing … (5AA) Special rule for self-induced intoxication In determining the appropriate sentence for an offence, the self-induced intoxication of the offender at the time the offence was committed is not to be taken into account as a mitigating factor. …
2. Although the self-induced intoxication of the offender at the time the offence is committed is not a mitigating factor, evidence of past trauma, related substance abuse, and expert evidence about mental health conditions such as substance use disorder, is relevant to an offender's subjective case. In some circumstances, those factors may materially impact on a sentence in a number of ways including in the reduction of moral culpability.
3. That statement of principle is uncontroversial. In R v Millwood [2012] NSWCCA 2, Simpson J (Bathurst CJ and Adamson J agreeing) said: "[69] … I am not prepared to accept that an offender who has the start in life that the respondent had bears equal moral responsibility with one who has had what might be termed a 'normal' or 'advantaged' upbringing. Common sense and common humanity dictate that such a person will have fewer emotional resources to guide his (or her) behavioural decisions. I should not be taken as implying that such a person bears no moral responsibility; but I consider that the DPP's submission significantly underestimates the impact of a dysfunctional childhood. Indeed, it sits uneasily with the immediately preceding acknowledgement that his upbringing had been 'tragic and dysfunctional'. That his background is a relevant consideration affording some (although limited) mitigation is entirely consistent with the approach taken by Wood J (as he then was) in R v Fernando (1992) 76 A Crim R 58, a decision which has repeatedly been followed in this Court. If that were not so, there would be no purpose in sentencing courts receiving, as they invariably do, evidence concerning the personal background of offenders."
4. This is not a case where the sentencing judge determined that the respondent's intoxication at the time of the offending was not self-induced. In the remarks on sentence, his Honour summarised the psychologist report provided by Ms Cornell. His Honour found as follows. "[67] Ms Cornell concluded that the offender meets the criteria for a Major Depressive Disorder and Alcohol Use Disorder from approximately 2018, including at the time this incident occurred. Ms Cornell stated that because of his poor coping with these depressive symptoms, the offender developed a problematic pattern of alcohol use, ultimately leading to an untreated alcohol use disorder. She refers to the offender demonstrating a deterioration in his functioning over [the] years prior to the offences due to poor coping with the loss of his father and also the major depressive disorder which he had at the time. She found that he has struggled to regulate and manage these feelings, resulting in the avoidance of those feelings by the use of alcohol. … [76] I regard the offender's subjective case and mental health issues as supporting the amelioration of sentence and lessening moral culpability."

Ground 2: The sentencing judge erred by considering whether an Intensive Correction Order should be made before considering the length of the sentence of imprisonment to be imposed

1. The Crown submitted that the sentencing judge erred in that after his Honour was satisfied that no penalty other than imprisonment was appropriate, without first determining the length of the sentence of imprisonment to be imposed, his Honour turned to consider whether an ICO should be imposed.
2. The Crown conceded that ex tempore judgments should be considered with a degree of latitude, but submitted that even allowing for this, his Honour determined that an ICO should be imposed prior to determining the length of the sentence of imprisonment that was warranted.
3. The Crown submitted that this case presents a meaningful opportunity to provide guidance to sentencing courts as to the correct approach to be taken when a sentencing court is considering the imposition of an ICO.
4. The respondent submitted that there is no evidence that the sentencing judge erred by considering whether an ICO should be made before determining the length of the sentence of imprisonment.
5. During oral submissions, Ms Evers submitted that the three-step approach to the imposition of a sentence of an ICO is well-known. Ms Evers also submitted that the sentencing judge referred to Stanley v Director of Public Prosecutions (NSW) (2023) 278 CLR 1; [2023] HCA 3 ("Stanley"), albeit in relation to a different sentencing principle. Ms Evers submitted that while his Honour did not delineate the three steps he had taken, the totality of the evidence including the sentencing judge's clear awareness of Stanley supports a finding that his Honour did not fall into error in this respect.

Determination

1. There is abundant guidance available to sentencing judges with respect to the proper approach to the imposition of an ICO.
2. In Stanley, the majority of the High Court clearly set out the three steps to be undertaken by a sentencing court in considering the imposition of an ICO. Firstly, a determination that no sentence other than a sentence of imprisonment is appropriate. Secondly, a determination of the appropriate term of the sentence of imprisonment. Thirdly, where the issue arises, consideration of whether to make an ICO: at [59].
3. Subsequently, this Court in Zheng v R [2023] NSWCCA 64 reaffirmed that whether an offender is to be sentenced to a term of imprisonment and if so, for what term, are questions that must be answered prior to any consideration of whether or not to impose an ICO: at [270].
4. Gleeson JA (Hamill and Ierace JJ agreeing) helpfully set out the necessary steps as follows: "[270] Turning to the sequence of determinations to be made by a sentencing court under the Sentencing Act, as Gageler J recently observed in Stanley v Director of Public Prosecutions (NSW) [2023] HCA 3 at [30]: 'The Court of Criminal Appeal of the Supreme Court of New South Wales has held, repeatedly and correctly, that whether an offender is to be sentenced to a term of imprisonment, and (if so) for what term, are questions to be asked and answered within the scheme of the Sentencing Procedure Act before any question can arise as to whether or not to make an ICO and (if so) on what conditions.' (Citations omitted) [271] As to the question of whether the threshold in s 5(1) of the Sentencing Act is met, I accept her Honour's unchallenged finding that no penalty other than imprisonment is appropriate. The applicant did not argue to the contrary. [272] It is next necessary to determine the appropriate term of the sentence of imprisonment and, where the issue arises, consideration of whether or not to make an ICO. An ICO is a sentence of imprisonment for the purpose of s 5(1) of the Sentencing Act that is directed, under s 7(1), to be served by way of intensive correction in the community rather than full-time detention. The determination of the appropriate term of the sentence of imprisonment to be imposed is to be made without regard to, and cannot be adjusted to reflect, the manner in which the sentence is to be served: R v Zamagias [2002] NSWCCA 17 at [26]; Wany v R (2020) 103 NSWLR 620; [2020] NSWCA 318 at [20]."

Ground 3: The sentence imposed was manifestly inadequate

1. Under this ground, the Crown submitted that having regard to all of the relevant factors including the objective gravity of the offences, the length of the aggregate sentence imposed is manifestly inadequate.
2. Whilst acknowledging that sentencing judges are to be allowed as much flexibility as is consonant with the application of proper principle and consistency of approach, the Crown emphasised that the maximum penalty for each of the two offences was 7 years' imprisonment, which represents an "important yardstick or guidepost" for sentencing courts. The Crown relied on Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [27] and [31] in this respect. The Crown submitted that bearing in mind the objective gravity of the offences, against this guidepost, the aggregate sentence is manifestly inadequate.
3. The Crown submitted that notwithstanding the respondent's relatively strong subjective case, there was a "substantial disconnect" between the objective seriousness of the offences and the indicative sentences. The Crown submitted that neither the need for general deterrence and denunciation, nor the objective seriousness of the offences, were appropriately reflected in the sentence.
4. The Crown pointed to the respondent's significant intoxication and the fact he was driving in excess of the speed limit and with an unrestrained passenger at the time of the offending. The Crown also pointed to the "catastrophic nature of the injuries sustained by the victim". The Crown submitted that these matters were not appropriately reflected in the indicative sentence.
5. For the above reasons, the Crown submitted that the aggregate sentence is unreasonable or plainly unjust.
6. Secondly, the Crown submitted that the manifest inadequacy of the aggregate sentence was compounded by the sentencing judge's order that the sentence be served by way of ICO. The Crown submitted that the decision to impose an ICO seems to have focused exclusively on the respondent's rehabilitation and community safety to the exclusion of all other factors.
7. The Crown submitted that the order that the sentence be served by way of an ICO failed to adequately punish the respondent, fell short of recognising the harm done to the victim and the community, and failed to give effect to the need for denunciation and general deterrence in sentencing for offences such as these.

Determination - manifest inadequacy

1. In R v Sara [2020] NSWCCA 119, this Court set out the principles applicable to Crown appeals asserting manifest inadequacy. Harrison J stated as follows (Bathurst CJ and Hoeben CJ at CL agreeing): "[97] The assertion that a sentence is manifestly inadequate is an assertion that the sentence is "unreasonable or plainly unjust", as that expression is used in House v The King: see Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25]. In other words, the Court must be satisfied that the non-parole periods and total sentences imposed were outside the range of sentences that could have been imposed: see R v Mereb; R v Younan [2014] NSWCCA 149 at [32]. [98] However, appellate intervention will not be justified simply because the result arrived at below is markedly different from other sentences imposed in other cases. The Court must be driven to conclude that there must have been some misapplication of principle: Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [58]; Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [58]-[59], [75]-[76]; The Queen v Pham (2015) 256 CLR 550; [2015] HCA 39 at [28]. [99] In assessing whether the sentence imposed was "unreasonable or plainly unjust", the following principles apply: (1) Sentencing is a discretionary judgment and there is no single correct sentence: Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 at [24]. (2) The Court of Criminal Appeal must not substitute its own opinion merely because it would have exercised the sentencing discretion differently to the sentencing judge: Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29 at [15]. (3) 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: Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6]; Markarian at [25]; Hili at [58]. (4) The weight to be given to the various factors to be taken into account (including the evidence and various purposes of sentencing) is a matter for the sentencing judge: Bugmy at [24], [99]. (5) Although the Court of Criminal Appeal is not bound by the sentencing judge's assessment of objective seriousness, the Court should be very slow to form its own view: CMB at [78]; Mulato v R [2006] NSWCCA 282 at [37]. (6) Whether or not manifest error has occurred is not "fundamentally intuitive". What reveals manifest inadequacy is a consideration of all of the matters that are relevant to fixing the sentence: Hili at [60]. (7) Reviewing a history of sentencing can establish a range of sentences that have in fact been imposed. However, that history does not establish either that (i) that range is the correct range; or (ii) that the upper or lower limits to the range are the correct limits. They are only a yardstick against which to examine a proposed sentence: Hili at [54] approving Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194 at [303]-[304].

Submissions

1. The Crown submitted that the Court should not exercise the residual discretion not to interfere with the sentence. The Crown submitted that there was no delay in the institution of the appeal or in notifying and serving the respondent.
2. The Crown also submitted that the Crown did not contribute to the manifest inadequacy of the sentence. The Crown maintained that an ICO was not appropriate throughout the sentencing proceedings.
3. In respect of the contention that resentencing may adversely affect the respondent's progress towards rehabilitation, the Crown made the following submissions: 1. The sentencing judge was justified in his Honour's scepticism towards the timing of the respondent's efforts at rehabilitation. As a consequence of the respondent's "late" commitment to rehabilitation, this is not a case where a full-time custodial sentence would "interrupt or frustrate a well-established course of rehabilitation". 2. If the respondent's commitment to rehabilitation and abstinence is as steadfast as he has represented, his progress towards rehabilitation would not be frustrated by the imposition of a custodial term.
4. The Crown further submitted that allowing the "manifestly inadequate" sentence to stand would undermine the need for denunciation, punishment, protection of the community and recognising the harm done to the victim, and may undermine public confidence in the administration of justice.
5. The respondent submitted that in light of his significant rehabilitation, the residual discretion should be applied. The respondent further submitted that the sentencing judge's decision recognised, consistent with Stanley, that community safety is a paramount consideration in granting a non-full time custodial sentence. The respondent submitted that given his history of vulnerability and mental health issues, together with his commitment to rehabilitation, an ICO is better directed to community safety than a full-time custodial sentence.

Determination - residual discretion

1. Even if error is established in a Crown appeal, the Court can decline to exercise the discretion to vary the sentence (the residual discretion): Green at [1]. Section 5D(1) of the Criminal Appeal Act provides: 5D Appeal by Crown against sentence (1) The Attorney-General or the Director of Public Prosecutions may appeal to the Court of Criminal Appeal against any sentence pronounced by the court of trial in any proceedings to which the Crown was a party and the Court of Criminal Appeal may in its discretion vary the sentence and impose such sentence as to the said court may seem proper. (Emphasis added). …
2. In CMB v Attorney-General (NSW), Kiefel, Bell and Keane JJ stated at [54]: "[w]here error … is established in an appeal by the prosecution, the Court of Criminal Appeal may in its discretion dismiss the appeal notwithstanding that the sentence is erroneously lenient." (Emphasis added).
3. The onus is on the Crown to "exclude any reason" for the Court to exercise the residual discretion not to interfere with the sentence: R v Rose [2024] NSWCCA 193 at [48] (per Campbell J, Harrison CJ at CL and Sweeney J agreeing); CMB v Attorney-General (NSW) at [54] (per Kiefel, Bell and Keane JJ). The Crown must persuade the Court to intervene: CMB v Attorney-General (NSW) at [36] (per French CJ and Gageler J) and [66] (per Kiefel, Bell and Keane JJ).
4. There is ample authority for the proposition that even where a sentence is erroneously lenient, a court may decline to interfere with the sentence particularly where to do so would be to disrupt the respondent's rehabilitation.
5. In Green, French CJ, Kiefel, Heydon and Crennan JJ stated as follows: "[2] In Crown appeals, circumstances may combine to produce the result that if the appeal is allowed the guidance provided to sentencing judges will be limited and the decision will occasion injustice. Relevant circumstances include consequential disparity relative to an unchallenged sentence imposed on a co-offender and delay in the appeal process which may be associated with disruption of the offender's progress towards rehabilitation. In such cases it may be appropriate for a court of criminal appeal, in the exercise of its residual discretion, to dismiss a Crown appeal".
6. In R v Greaves [2014] NSWCCA 194, the respondent was convicted of one count of dangerous driving causing grievous bodily harm and four related summary offences, including fail to stop and assist after impact causing injury. The respondent was 21 years of age at the time of the offence. The respondent had consumed alcohol in the hours prior to the offence. The respondent was driving above the speed limit. The utility driven by the respondent collided with a vehicle travelling in the opposite direction, causing the respondent to lose control of the utility. The victim and one other passenger were unsecured in the rear tray of the utility. The utility ran over a culvert which caused the rear tray passengers to be thrown from the vehicle onto the nature strip. The respondent saw the victim lying motionless on the ground, panicked because he knew he was not permitted to drive under his bail conditions, and left the scene of the accident, driving to a friend's house. The respondent parked the utility and then returned to the scene of the accident on foot. The victim was left a paraplegic.

Rehabilitation in the community

1. The progress the respondent has made in the community is not only of a personal benefit to him but, importantly, protects the community and meaningfully addresses specific deterrence. The respondent's rehabilitation would be interrupted, and in my view, potentially derailed if he were now sentenced to a term of full-time imprisonment. That would produce an injustice.
2. I reject the Crown's submission that there is no reason to assume or conclude that the respondent's progress towards rehabilitation will be frustrated by the imposition of a term of full-time imprisonment. It has long been recognised that rehabilitation is better facilitated in the community. Indeed, it has long been recognised that rehabilitation in the community is "inextricably linked to community safety" and that disrupting an individual's rehabilitation in the community may produce an injustice.
3. In Green, the High Court provided examples of circumstances that may produce injustice if a Crown appeal is allowed: "[43] Other circumstances may combine to produce injustice if a Crown appeal is allowed. They include delay in the hearing and determination of the appeal, the imminent or past occurrence of the respondent's release on parole or unconditionally, and the effect of re-sentencing on progress towards the respondent's rehabilitation. They are relevant to the exercise of the residual discretion. The guidance afforded to sentencing judges by allowing the appeal should not come at too high a cost in terms of justice to the individual." (Emphasis added).
4. In R v Speechley (2012) 221 A Crim R 175; [2012] NSWCCA 130, this Court said (per Johnson J, McClellan CJ at CL and Hammerschlag J agreeing): "[146] From time to time, this Court has declined to resentence an offender on a Crown appeal, despite error having been established, because of solid and substantial evidence of rehabilitative steps taken by the offender between the time of sentence and the hearing of the appeal: R v Tortell [2007] NSWCCA 313 at [63]; R v SC [2008] NSWCCA 29 at [55]. In such circumstances, it may be seen that the offender has taken full advantage of opportunities for rehabilitation which have presented themselves as a result of an erroneous and unduly lenient sentence. Depending upon the circumstances of the case, the residual discretion may be exercised in favour of the offender with the Court dismissing the Crown appeal. …"

Resentencing

1. I propose that after allowance is made for the early pleas of guilty there would be sentences of 3 years and 1 year, 6 months respectively. Being mindful of the principle of totality, there should be an aggregate sentence of imprisonment for 3 years, 9 months.
2. Pursuant to s 44(2B) of the Crimes (Sentencing Procedure) Act, there should be a finding of special circumstances to provide for a longer period of supervision to enhance the respondent's continued rehabilitation in the community following release on parole.
3. The circumstances in this case are a little different to those in R v FF. The time between the appeal being heard and judgment being handed down has been greater because of the intervening vacation period. I am prepared to assume in the respondent's favour that he has continued to comply with his obligations under the intensive correction order, including performance of community service. I would allow full credit for the time during which he has served the intensive correction order by backdating the sentence to the date of sentencing in the District Court.
4. I propose the following orders which, because they will not take effect, need not be specified in all technical respects: 1. Allow the Crown appeal against sentence. 2. Quash the sentence imposed in the District Court on 19 July 2024. 3. In lieu, sentence the respondent to an aggregate term of imprisonment for 3 years and 9 months with a non-parole period of 2 years and 6 months dating from 19 July 2024.

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