(xi) Failing to stop.
15 The Chief Justice went on, adopting what he had said in Jurisic, to observe that the first two of those factors focus on the occurrence, whereas the others relate to the conduct of the offender. The presence of those other factors might indicate that the offender had abandoned responsibility for his or her own conduct, and would bear upon an assessment of the moral culpability of the offender at the time of the offence: Whyte at paras 218 and 228. His Honour continued:
229 The guideline for offences against s 52A(1) and (3) for the typical case identified above should be:
Where the offender's moral culpability is high, a full time custodial head sentence of less than three years (in the case of death) and two years (in the case of grievous bodily harm) would not generally be appropriate.
230 In the case of a low level of moral culpability, a lower sentence will, of course, be appropriate.
231 In the case of the aggravated version of each offence under s 52A, an appropriate increment to reflect the higher maximum penalty, and what will generally be a higher level of moral culpability, is required. Other factors, such as the number of victims, will also require an appropriate increment.
16 The Chief Justice emphasised (at para 232) that the guideline is a "guide" or a "check", and that the appropriate sentence in each case must be determined by the exercise of a broad discretion. His Honour also observed that the guideline focuses on the objective circumstances of the offence, and that the offender's subjective circumstances must also be considered.
17 The present case differs in several respects from the typical case identified in Whyte at para 204. The respondent is not a young man and did not plead guilty. Far from death or permanent injury to a single person, two children were killed and two others were seriously injured. Turning to the aggravating factors listed at paras 216-17, the extent and nature of the injuries inflicted were very serious and the respondent's manner of driving was such as to put a significant number of people at risk. On the other hand, his conduct did not exhibit any of the other factors referred to.
18 Counsel for the respondent, Mr Dhanji, argued that the accident was the result of misjudgement and that the respondent's conduct was at the lowest end of the scale in terms of moral culpability: cf Whyte, per Spigelman CJ at para 214. It is true that one could readily imagine a much more culpable course of driving. The respondent was not driving recklessly, at an excessive speed or under the influence of alcohol. Nevertheless, his inattention at the critical time cannot fairly be described as misjudgement. As I have said, the sentencing judge did not see the accident as the product of momentary inattention. His Honour's unchallenged findings, set out in paras 5 and 6 of these reasons, were that the respondent took a calculated risk in taking his eyes from the road and that, given the volume of traffic and conditions at the time, he was in serious disregard of his obligation as the driver of a heavy vehicle. That is the measure of his blameworthiness, and nothing would be gained by an attempt to assign to his conduct some position within a notional scale of culpability.
19 Mr Dhanji relied upon three decisions of this Court in cases involving driving which amounted to more than momentary inattention, but all of them are distinguishable from the present case and are of little assistance in resolving this appeal. In R v Mansour [1999] NSWCCA 180, a sentence of four years for one charge of dangerous driving occasioning death was reduced to two years, comprising a minimum term of twelve months and an additional term of twelve months. In R v Foster [2001] NSWCCA 215, a Crown appeal against a suspended two year sentence for one charge of dangerous driving occasioning death was dismissed. Apart from other distinguishing features, each of those cases involved the death of one person only.
20 Of more significance is R v Oddie [2001] NSWCCA 524, in which an effective sentence of two years with a non-parole period of twelve months for one count of dangerous driving occasioning death and two counts of dangerous driving occasioning grievous bodily harm was reduced to sixteen months with a non-parole period of eight months. However, the Court intervened in that case because the sentencing judge had made no clear finding about the culpability of the offender's driving apart from accepting a Crown submission that it was more than misjudgement.
21 Of course, appropriate weight must be given to the respondent's subjective case. It is true, as Mr Dhanji pointed out, that he suffered a significant measure of extra curial punishment as a result of the vandalism and harassment to which I have referred, leading to the collapse of his business and his financial ruin, and that that is a matter properly to be taken into account: cf R v Allpass (1994) 72 A Crim R 561 at 566. Similarly, regard should be had to the severe and continuing psychological effect upon him of the accident: R v Dhanhoa [2000] NSWCCA 257, per Priestley JA at paras 12, 24, 34 and 40-44.
22 However, while giving full weight to those matters, I am satisfied that the effective sentence passed upon the respondent is manifestly inadequate and that this Court must intervene. I am not dissuaded from that conclusion by some additional evidence which we received going to our residual discretion to dismiss the appeal, although that material must be taken into account on re-sentence.
23 The primary reason why I would increase the sentence is that it fails to reflect the seriousness of the offences, given the particularly tragic consequences of the accident. As Hunt CJ at CL observed in R v Musumeci (CCA, unreported, 30 October, 1997) the "real substance" of the offence of dangerous driving occasioning death is "not just the dangerous driving; it is the dangerous driving in association with the taking of a human life" (at p 5). Similarly, the extent of physical injury is relevant to the assessment of the seriousness of an offence of dangerous driving occasioning grievous bodily harm.
24 It is this which is reflected in the first of the aggravating factors set out at para 216 of Whyte, that is, the extent and nature of the injuries inflicted, while para 231 recognises that the number of victims must bear upon the appropriate sentence. The sentence of two years in the present case is not adequate to denounce a course of driving which took the lives of two young people and seriously injured two others. Nor does it serve the requirement of general deterrence, so as to emphasise the special need for vigilance on the part of the drivers of heavy vehicles.
25 None of this is to deny that sentencing for offences of this kind is notoriously difficult. So much was recognised by Hunt CJ at CL in Musumeci. His Honour observed (at p 8) that "… sentencing in this type of case presents a particularly difficult task. They almost always are sad cases for everyone involved." The devastating effect of this tragedy upon Ms Lerch and all the loved ones of those unfortunate children hardly needs to be stated. For their part, the lives of the respondent and his wife will never be the same again.
26 What, then, is to be done? The fresh material before this Court comprises a recent psychological report, and certificates from the Department of Corrective Services attesting to the respondent's good behaviour and industriousness whilst in custody. The psychological report affirms the evidence which was before his Honour of the emotional effect of the accident upon the respondent. It also discloses that the children's education has been disrupted through their being taunted at school about the incident. The psychologist saw the respondent on 6 September 2002, and noted what she considered to be "remnants of what was probably a severe Post Traumatic Stress Disorder" resulting from the accident. She observed him to be "profoundly remorseful" and to have "demonstrated empathy for the parents of the victims based on a personal understanding of parental love and attachment." She found him also to be suffering for his own family who were "sharing his trauma in different ways …".
27 The psychologist noted that the respondent had not had adequate counselling whilst in prison, due to the fact that the resources of the psychology staff were "always stretched." She concluded:
"Anthony's personal qualities and his understanding of the joys and responsibilities of parenthood make his private grief over the offences very poignant indeed. He is unlikely to ever completely leave this tragic incident in the past, an experience he knows he shares with the parents of the victims."
28 The respondent was sentenced on 11 April 2002, some six months ago. The principle of double jeopardy in Crown appeals means that he should not now have to face a sentence of the severity which might then have been passed upon him. The sentence which this Court passes should be the least which could properly have been imposed upon him at first instance: Jurisic at 232. In my view, that would be an effective sentence of four years with a non-parole period of two years. I would achieve this by increasing the sentences on each of the first two counts accordingly. I do not consider that accumulation is called for. Clearly, there are special circumstances and the Crown prosecutor did not suggest otherwise.
29 I would allow the appeal. I would quash the sentence on the first two counts and on each count I would substitute a sentence of four years imprisonment, with a non-parole period of two years, to date from 11 April 2002. I would confirm the sentences of six months on the third and fourth counts, also commencing on 11 April 2002.
30 HOWIE J: I agree with Hidden J.