105 The Prado the subject of the receiving charge was the same vehicle the Appellant was driving on 14 January. The "steal from the person" event was that committed shortly before the police chase began. No information concerning the other matters was brought to the Court's attention.
106 It was also relevant for Davidson AJ to have regard to the Appellant's record. His Honour described it as extensive, consistent with the history of a disrupted childhood and early youth and the Appellant's almost non-existent employment record but that nothing in it approached the seriousness of the murder offence. All of these remarks are accurate but somewhat more attention to it should be given.
107 The Appellant's antecedent report shows he was born in May 1975. His first recorded conviction was in March 1992, for larceny. Prior to the instant offence he had been convicted of at least 64 offences. Six were for stealing or illegal use of a motor vehicle, 7 were for breaking, entering and stealing and 30 were for other offences of dishonesty. He has been dealt with by a Childrens or Local Court on 26 separate occasions. There have also been some appeals to the District Court. In September 1994, on the 6th occasion on which a sentence was imposed, he received his first sentence of imprisonment. Putting aside his numerous concurrent sentences, he has been sentenced to imprisonment on 8 further occasions before he committed the instant offence. One group of sentences in March 1998 involved him attending the William Booth Institute although the Antecedents Report suggests he may not have done so, or attended for only a very short period. The longest single period of actual custody imposed seems to have been 12 months.
108 The Appellant's conviction on the murder charge is not, of course, an occasion when he should again be punished for any of the offences on his antecedent report. However the history I have recounted shows that over a period of 9 years he has chosen to disregard the rules and mores of civilised society and had ignored the chances and leniency which many courts had extended to him. The offences on the Form 1 and his actions on 14 January 2001 prior to the time of colliding with his victim may fairly be regarded as a continuation of his attitude over the previous 9 years. In that situation, his past has a clear relevance - Veen v R (No 2) [1987-88] 164 CLR 465 at 477.
109 As the 9th offence of its type, the breaking entering and stealing offence on the Form 1, had it stood on its own, would have merited, indeed required, a substantial period of imprisonment. Albeit the offence on the Form 1 relating to the Prado was receiving, in light of the previous 6 offences of stealing or illegal use of a motor vehicle, the same may be said of that offence also.
110 Of course, the fact that these offences were, with others, included on a Form 1 means that their significance for sentencing purposes is attenuated - see Attorney General's Application under s37 of the Crimes (Sentencing Procedure) Act 1999, No 1 of 2002 [2002] 56 NSWLR 146 at [39] - [44]. However this should not be into a state of oblivion, particularly when regard is had to the matters referred to in the immediately preceding paragraph.
111 Also relevant of course were the Appellant's other subjective features. They are calculated to excite sympathy and undoubtedly argue for a lesser sentence than might otherwise be imposed.
112 He was always in trouble from a young age, sufficient for his mother to seek medical help and, when he was about 12, approach a solicitor about having the Appellant made a ward of state because she felt his parents' lives were being totally destroyed by his delinquent behaviour. He was then put into a boarding school for children with behavioural problems. Apparently the Appellant's biological father is in fact an uncle and on the advice of the school, the Appellant was then told so. This discovery totally destroyed his relationship with the person who he had thought was his father and led to behavioural problems so bad that he was asked to leave the school. In his early teens he was diagnosed as suffering from ADD.
113 The Appellant's parents said that if he was to live at home he would have to work and work with a family friend was arranged. However this person sexually assaulted the Appellant and was, in due course prosecuted and convicted. After 9 months the Appellant could stand the treatment no longer and decided to live on the streets. He told the author of the Pre Sentence Report that he could not bring himself to tell his parents about the sexual assaults as he thought they would think that he was lying to get out of work.
114 According to a report from Messrs Duffy, Barrier, Robilliard, the Appellant began abusing cannabis at 13 and his use in this regard has continued. He began binge drinking at about the same age. The binge drinking significantly reduced when he was 19 at which time he began to use amphetamines and hallucinogens. At 21 he began using heroin when he was in Silverwater Correctional Centre. Since then there have been a number of attempts to control his addictions but none have been completely successful. According to the report, "Trevor said that during the past 18 months in custody his substance use has been significantly decreased, although he had not maintained total abstinence." Gambling, another addiction, continues in a modified form in gaol.
115 The Appellant described himself to the author of that report as a quick learner and said that at he had found the school environment frustrating. Psychological testing revealed that he has a IQ of 117, placing him above 87% of the population. However testing in relation to emotional and interpersonal difficulties produced an invalid profile and his score indicated he had exaggerated his symptoms at a level greater than quite disturbed psychiatric populations. Testing for substance abuse led the psychologist to the conclusion that the Appellant needs relatively intensive rehabilitative treatment in this regard.
116 Given the age at which the Appellant's behavioural problems commenced, it seems to me to be a proper inference that to some extent his congenital makeup is partly to blame for the lifestyle he has led. That is, in a way, mitigating. However, it may also argue for greater emphasis on personal deterrence and it certainly does argue for more weight to be given to protection of the community. These are 2 of the considerations to be taken into account in sentencing.
117 In terms of a sentence what should be the result of the above, to some extent conflicting, factors? Davidson AJ concluded that an appropriate starting point was 18 years from which he allowed a discount of about 11% or 2 years on account of the Appellant having pleaded guilty to manslaughter. Thus it was that his Honour arrived at a head sentence of 16 years and, declining to find special circumstances, a non-parole period of 12 years.
118 I have previously remarked on the limits on the usefulness of statistics in sentencing. However it may be noted that they show that 50% of offenders sentenced for one count of murder and who have pleaded not guilty receive a head sentence of, or less than a period of 18 years. 28% of such offenders receive head sentences of 16 years or less. The range of head sentences is from 9 years to life imprisonment.
119 While, by definition, in all cases the victim has died, experience shows that there is a large range of criminality within the commission of the offence. Parliament has provided that in most situations, including this one, the courts shall have a choice as to the punishment to be imposed in a particular case - from nothing (although I cannot conceive where such would be the penalty) to life imprisonment. Thus it is necessary for a court to embark on some assessment of where, within the range of criminality, a particular offence falls.
120 Experience has also shown that many cases involve much greater criminality than that here. For example, all other things being equal - which they rarely are - the presence of an intention to kill is generally regarded as involving greater criminality than the presence of an intent to do merely grievous bodily harm. On a similar basis, I would regard an intent to kill as involving greater criminality than reckless indifference to human life.
121 But that is to talk in generalities. There remains the question where does the Appellant's offence fall. In my view the Appellant's conduct in continuing to drive when, as the jury must have concluded, he knew by his manner of driving, there was a real and substantial, not remote, likelihood that someone would be killed, places his criminality higher than most cases with which the Court has to deal where death results from acts done with, merely, an intent to do grievous bodily harm. A fortiori is this so when regard is had to the fact that the conduct was, in the way I have indicated, not momentary but the culmination of actions over a substantial period and when there had been plenty of time to reflect on where his actions might lead. It is notorious that the sort of driving the Appellant engaged in prior to the last few moments often leads to serious injury or death. Indeed this must or should have been brought home to the Appellant when, earlier, he narrowly evaded a head-on collision with another motorist.
122 Of course, the Appellant does not suffer from the disadvantage or aggravation of having premeditated his victim's death or that the victim would suffer grievous bodily harm. On the other hand, the Appellant does not have, by way of excuse or explanation for his conduct the sort of stress or emotion which leads, at times, to violence in a domestic or family situation. His motivation appears to have been solely to escape apprehension for other criminality. Not that, except insofar as it appears in the Form 1, he is to be punished for that criminality. I mention it solely to point out that he does not have in his favour some factors commonly regarded as mitigating.
123 In addition to these matters, which would place his offending in what I would regard as not less than the middle of the range of murder offences, there was the fact that the victim was a police officer killed in the circumstances I have described, and secondly, the matters of the Form 1. Notwithstanding the murder conviction itself is bound to result in a quantum leap in the length of the sentence imposed on the Appellant compared with those he had previously suffered, in light of the magnitude of his past offending, the offences on the Form 1 should have led to some increase in the sentence otherwise appropriate - and this even if, as Attorney General's Application under s37 of the Crimes (Sentencing Procedure) Act 1999, No 1 of 2002 suggests, one regards the Form 1 offences as relevant to only personal deterrence and retribution. Having regard to his past, it would be quite wrong to say that, because he has to suffer a long sentence for the murder itself, the demands of personal deterrence and retribution are satisfied.
124 Indeed, his past demonstrates the contrary. Very many of the sentences imposed on the Appellant have been made concurrent. At a practical level, and notwithstanding the imposition of sentences, the courts have in fact not imposed any punishment on the Appellant for much of his offending. The extent to which he has re-offended demonstrates that there is no community purpose served by this approach. The time has surely arrived where, in terms of both personal deterrence and retribution, he should suffer, and obviously suffer, punishment for every occasion of offending.
125 To take account of the fact that the Appellant's victim was a police officer killed in the circumstances he was, the increase from the sentence otherwise appropriate should have been substantial. I do not see any other way of giving effect to the authorities which I have quoted in this regard (and with which I respectfully agree). Nor, unless there be error in that too little weight was given to other factors, is it possible to avoid the conclusion that, in the sentence imposed, this has not occurred. It is impossible to find in the 18 year starting point, both proper reflection of the general pattern of sentencing for murder, apparent in the statistics to which I have referred and with which this Court has frequently to deal, and any proper allowance for the circumstances of the victim.
126 One particular factor which seems to me to argue very strongly for the conclusion that the sentence is too light is retribution. This Court said in R v Gordon (unreported, CCA, 7 February 1994):-
"Retribution, or the taking of vengeance for the injury which was done by the offender, is also an important aspect of sentencing: Regina v Goodrich (1952) 70 WN 42 at 43; Regina v Cuthbert (1967) 86 WN (Pt 1) 272 at 274; Regina v Rushby (at 598). Not only must the community be satisfied that the offender is given his just deserts, it is important as well that the victim, or those who are left behind, also feel that justice has been done."
127 See also Veen v R (No 2) at 476.
128 While there is obvious difficulty in accepting that the family of a murdered victim are the best or perhaps appropriate judges of what an offender's just deserts are, there is much to be said for the substance of this passage. After an irresponsible past which his prior court appearances and sentences must have demonstrated to him was unacceptable, on the day with which I am concerned he participated in a bag snatching. Then, to avoid a police pursuit and apprehension and his just desserts for the bag snatching, and/or driving a stolen vehicle, he embarked on a lengthy period of irresponsible driving, to some degree dangerous and which he must have known was dangerous. Finally, driving with reckless indifference to life he caused the unsurprising death of one of the police officers trying to apprehend him.
129 I am unable to regard, and I do not believe the community would regard, the 18 year starting point or the 16 year sentence imposed on the Appellant as justice done for such an offence.
130 In so concluding, I do not forget the Appellant's unfortunate life, for at least some of which he cannot fairly be held responsible. But, demonstrably, the courts have given him chances. Although there is scope for much improvement there, gaols do have courses directed to helping offenders. Either, he has chosen not to learn or, if he cannot, then the need for protection of the community looms large. I do not forget the limits on the operation that can legitimately be given to this topic of protection - see Veen v R (No 2) at p 473 et seq.
131 I would accept that Davidson AJ's starting point, although in my view low, could be justified had there been no Form 1 offences and the victim not being a police officer killed in the course of his duty. However I find it impossible to regard that starting point, or the sentence ultimately imposed as other than manifestly inadequate when these matters are taken into account and given their proper weight. There are, of course, restraints on this court in re-sentencing in consequence of a Crown appeal but the matters to which I have referred lead me to the conclusion that the minimum starting point which could reasonably be adopted in the sentencing of the Appellant is 22 years. Recognition of the fact that he pleaded guilty to manslaughter would lead me to reduce this period to 20 years. Davidson AJ said that there were no special circumstances, a view with which I agree, and accordingly the non-parole period should be 15 years. As did the sentence Davidson AJ imposed, both periods should date from 15 January 2001.
132 I would dismiss the appeal against conviction but allow the Crown appeal, quash the sentence imposed by Davidson AJ and impose in lieu a sentence in terms of that set out in the immediately preceding paragraph.
133 SMART AJ: I agree with Grove J.