Ground 1: Concurrency of Sentences
35 For the present the adequacy of the individual sentences is assumed. It is not entirely clear what the judge meant in saying that he had already identified why he had come to the view that the sentences should be concurrent. As I read the reasons, his Honour had in mind what he then expressed as the proximity of the victims and "this all occurred during the course of one act", and their injuries were similar although not identical.
36 The Crown submitted that the fact that the injuries were similar was largely irrelevant to concurrency, and that the concurrency failed to reflect that there were two victims of the same conduct of the respondent. Each of Ms Minzevska and Ms Lei suffered grievous bodily harm, it was said, and the sentence for one of the offences did not fully encompass the criminality in the other of the offences. It was said that on proper application of the totality principle, there should have been some accumulation.
37 In R v Janceski [2005] NSWCCA 288, Hunt AJA, with whom Spigelman CJ and Howie J agreed, said of a case where the one action by the offender causes a number of persons to be injured and separate charges are laid in relation to each victim -
"[22] In this second sub-category, it is easy for the sentencing judge to consider the sentencing process as being related to a single action which has created multiple victims, and therefore to fall into the error of imposing wholly concurrent sentences, each of them having been assessed on the basis that the existence of the multiple victims aggravated that sentence. Section 21A(2)(m) of the Crimes (Sentencing Procedure) Act 1999, which identifies the fact that an offence involved multiple victims as an aggravating factor, may (read in isolation) unfortunately lend credence to that approach. That is how the judge approached his task in the present case. Such an approach overlooks the fact that, in a case such as the present, there are two counts, each identifying one of the victims and each requiring a separate sentence. It is completely contrary to principle to aggravate each of those sentences on the basis that each offence resulted in multiple victims: Regina v Tadrosse [2005] NSWCCA 145 at [28]-[29].
[23] In a case falling within the second sub-category, separate sentences should usually be fixed which are made partly concurrent and partly cumulative, each such sentence being appropriate to the existence of only one victim and the aggregate of the sentences reflecting the fact that there are multiple victims resulting from the same action by the offender. The extent to which there should be an overlap in the partial accumulation will depend on what is required to represent the totality of the criminality involved in the one act of the offender. This, it seems to me, follows naturally from Pearce at [45]-[48] - and cases such as Regina v Weldon (2002) 136 A Crim R 55 at [46]-[53] and Regina v Price [2004] NSWCCA 186 at [38], [49] - when applying the general principles relating to the aggregation of sentences to this particular sub-category."
38 More generally, in the application of the totality principle it must be asked whether the sentence for one offence comprehends and reflects the criminality for the other offence. If it does not, the sentences should be at least partially cumulative, and that is so even if the two offences can be regarded as part of a single episode of criminality: R v Cahayadi [2007] NSWCCA 1 at [27]; Nguyen v R [2007] NSWCCA 14 at [12]; R v XX [2009] NSWCCA 115 at [52].
39 In R v Janceski there were two victims of the one occasion of dangerous driving. It was held that the sentences should be partially cumulative in order to acknowledge the harm occasioned to each of the victims. That is the present case also; each of Ms Minzevska and Ms Lei suffered serious injury, and there were separate offences of dangerous driving causing the separate injuries.
40 It was submitted on behalf of the respondent that the judge retained a discretion, and that making the sentences wholly concurrent was within his discretion. It may be accepted that there was a discretion, and one with the exercise of which this Court will not lightly interfere, see for example R v Hammoud [2000] NSWCCA 540; (2000) 118 A Crim R 66 at [7]; R v Carr [2002] NSWCCA 434; (2002) 135 A Crim R 171 at [32]. But as was said in R v Price [2004] NSWCCA 186 at [49] (Simpson and Howie JJ, RS Hulme J relevantly agreeing) -
"It will rarely be the case that sentences for multiple offences of dangerous driving causing death could be made wholly concurrent. Because, as was noted earlier, the criminality in the offence is not simply derived from the culpable act of driving without having regard to the consequences, the fact that more than one person is killed means that the criminality will not usually be sufficiently comprehended by a sentence that is appropriate for a single offence. In the present case, even assuming that a sentence of two years was appropriate for one offence, it could not, in my opinion, be an adequate reflection of the fact that the consequences of the respondent's driving was the death of two persons. This is notwithstanding the statements in R v Hammoud (2000) 118 A Crim R 66 to the effect that a judge has a discretion as to whether to make sentences cumulative or concurrent and legal minds might differ as to what order was appropriate in a particular case."
41 This is applicable also to the present case of significant injury suffered by the two victims. A proper basis for exercising the discretion as the judge did, notwithstanding that complete concurrency would not reflect the harm occasioned to each of Ms Minzevska and Ms Lei, must be seen. It was not enough that their injuries were suffered "during the course of one act". Nor was it relevant that their injuries were similar.
42 The reasons the judge gave for concurrency were not a proper basis for it. He did not address the need to compound the criminalities from the separate grievous bodily harm. In my opinion, there was error in principle in failing to consider whether the complete concurrency properly reflected the total criminality, and in making the sentences concurrent.
Grounds 2 and 3: General Deterrence, Objective Seriousness, Subjective Features and Manifest Inadequacy
43 These grounds were argued together, and it is convenient to deal with them together.
44 The Crown's submissions focused on R v Whyte. It was said, in summary, that the present case fell generally within the typical case identified in the guideline judgment; that the respondent's moral culpability was high and together with other factors at least the suggested range for the typical case was applicable; and that nothing in the respondent's subjective features warranted the significant departure from the range. It was said, as well, that there was double counting in that the subjective features of youth, depression and prospects of rehabilitation appeared to have been relied on in not imposing a full-time custodial sentence, and also in finding special circumstances so as to reduce the statutory ratio of the non-parole period to the head sentence.
45 R v Whyte identified a typical case of an offence of dangerous driving causing death or bodily harm contrary to s 52A of the Crimes Act. The case was one of a young offender of good character with no or limited prior convictions, where there was death or permanent injury to one person who was a stranger to the offender and no or limited injury to the offender or his or her intimates, and where there was genuine remorse and a plea of guilty of limited utilitarian value: at [204]. For such a case, a custodial sentence would usually be appropriate unless the offender had a low level of moral culpability, as in the case of momentary inattention or misjudgement: at [214]. Where the offender's moral culpability was high, a full time custodial head sentence of less than 2 years in the case of grievous bodily harm would not generally be appropriate; where there was a lower level of moral culpability, a lower sentence would be appropriate: at [229]-[230].
46 The respondent's case was close to the typical case, with variations warranting a higher sentence and a lower sentence but overall indicating a higher sentence. His early plea was of greater than limited utilitarian value; but on the other hand, the very many persons exposed to risk of injury contributed to the seriousness of the offending (see Application of the Attorney-General (No. 3 of 2002) [2004] NSWCCA 303; (2004) 61 NSWLR 305 at [108]; TG v R [2010] NSWCCA 28 at [28]) and he had a very bad traffic record. The judge's finding of high moral culpability was well justified: the respondent was intoxicated, was driving with complete irresponsibility, and was doing so only two days after a further suspension of his licence for significant speeding had ended.
47 The judge did remark that general deterrence loomed large, and one of his reasons for a sentence of imprisonment being warranted was "questions of general deterrence". It is not easy to see a finding as to objective seriousness in the remarks on sentence, save in what was said about moral culpability and the objective seriousness warranting a sentence of imprisonment (albeit one which was then ordered to be served by periodic detention). It is not particularly clear how the judge took account of the respondent's subjective circumstances, although he plainly gave weight to absence of a criminal history (as distinct from the driving record), to remorse, to contrition, to the character references and good character, to unlikelihood of repetition and to the diagnosis of a chronic depressive illness.
48 In my opinion, notwithstanding the respondent's favourable subjective features, sentences to be served by periodic detention cannot be reconciled with the guidance provided by R v Whyte.
49 The judge was at pains to say that a guideline judgment leaves a judicial discretion. However, a judicial discretion is one to be exercised in a principled way, relevantly in accordance with the guidance of the guideline judgment. As was said by Wood CJ at CL in R v Romanic [2000] NSWCCA 524 at [16], Dunford and Carruthers JJ agreeing -
[16] While guideline judgments are not to be treated as absolute directions for sentencing Judges, the rationale for their delivery lies in the objective of ensuring consistency in sentencing, and in the opportunity which they provide for a considered analysis by the Court of Criminal Appeal of sentencing principle, in respect of offences where some uncertainty or unevenness in sentencing practice has emerged. They are, accordingly, to be regarded as persuasive, and as a considered expression by this Court as to the proper range of sentences, from which there should be no departure save in accordance with a reasonable and justifiable exercise of discretion - Griggs [2000] NSWCCA 33 at paragraphs 29-30, per Simpson J, Henry (1999) NSWCCA 111 at paragraph 29.
50 Nowhere did his Honour address the typical case in R v Whyte, or the guidance provided by that judgment, beyond the unhelpful references such as taking it into account or being mindful of it. It is apparent from the remarks on sentence, in my view, that there was a failure to engage with the proper exercise of the discretion.
51 Moreover, there is just no explanation of why, having said that the objective seriousness of the offence warranted a sentence of imprisonment, the judge decided that the sentence should be served by way of periodic detention. The pre-sentence report gave qualified approval to eligibility and suitability, but that does not mean a decision that there should be periodic detention. If the reason was to be found in Mr Diment's report, that was not explained, and I do not think it was to be found.
52 Although the Crown did not take the point, arguably the judge further erred in that he did not first decide the appropriate term of imprisonment and then consider whether it should be served by an alternative to full-time detention: R v Jurisic (1998) 45 NSWLR 209 at 215, 249; R v Zamagias [2002] NSWCCA 17 at [24]-[30]; R v Carruthers [2008] NSWCCA 59 at [19]; TG v R at [25]. It is not necessary to take this further.
53 In my opinion, the judge failed to appreciate that a principled basis for the exercise of his discretion required a full time custodial sentence. When there is added that there were two offences and some accumulation was required, the error in sentencing is all the greater. There may have been double counting as to depression: it is hard to tell. It is not necessary to explore double counting.