Reubin Gary YOUNG v R

Objective seriousness of the offence 16 In her remarks her Honour referred to R v Whyte [2002] NSWCCA 343, 55 NSWLR 252, the guideline judgment dealing with dangerous driving causing death or grievous bodily harm under s 52A of the Crimes Act. At [216] - [217] of that decision Spigelman CJ set out a number of aggravating factors established by authorities dealing with offences of that kind. Her Honour saw three of those factors as relevant to the present case: the extent and nature of the injuries inflicted upon the deceased, the degree of the applicant's intoxication, and his failing to stop after the collision. Her Honour continued: "To these aggravating features must be added the fact that, as I have already found, the offence occurred after the offender had deliberately turned his large, heavy vehicle so as to drive it in the direction of the deceased. This, in my view, must put the case amongst the more serious of its kind." 17 Mr Thangaraj submitted that it was not appropriate in the present case to have regard to those three features as matters of aggravation. He argued, firstly, that the nature and extent of the deceased's injuries were not relevant, as he died shortly afterwards. That feature would be relevant only in relation to a victim who survived. So much was conceded by the Crown Advocate, Mr Babb SC, who appeared with Ms Rabsch for the respondent. Of itself, however, this is a matter of little or no significance. 18 As to the degree of the applicant's intoxication, Mr Thangaraj noted that the present case is different from an offence of dangerous driving causing death. Her Honour found that the applicant had deliberately driven towards the deceased. That being so, he argued, his degree of intoxication was not an aggravating feature. Rather, it mitigated his criminality because it contributed to an act done on the spur of the moment and the product of impaired judgment. 19 However, as the Crown Advocate pointed out in written submissions, no doubt the applicant's intoxication reduced his inhibitions and made him more aggressive, "a common feature of most instances of alcohol-fuelled aggression by young men". There is force in his submission that the culpability of the offence was increased by the fact that the applicant "got behind the wheel after consuming so much alcohol, thereby putting others within his vicinity at serious risk …" Her Honour observed that he should never have been driving his vehicle in that state. 20 Her Honour took into account in the applicant's favour that the offence was not planned or premeditated but, rather, "was very much a spur of the moment one in which he clearly gave no thought to the possible consequences". Nevertheless, his intoxication was an important factor in the commission of the offence and, no doubt, was the reason why he failed to stop the vehicle before it struck the deceased. In my view, her Honour's assessment of the significance of his intoxication was entirely appropriate and demonstrates no error. 21 The same is true of the manner in which her Honour had regard to his failing to stop after the collision. Mr Thangaraj argued that his decision to leave the scene must itself have been the result of impaired judgment due to intoxication, and that any aggravation of his criminality by his doing so was minimal. Nevertheless, her Honour found that he "clearly knew at that stage" that someone had been injured in the collision, and noted that it was "a matter of pure chance" that police were in the near vicinity and that he was arrested very shortly thereafter. 22 Mr Thangaraj also challenged her Honour's assessment of the case as "amongst the more serious of its kind". Indeed, a little later in her remarks her Honour observed that "we have a very serious offence of its kind …" Mr Thangaraj noted that, in oral submissions to her Honour, the Crown prosecutor then appearing had placed the offence in the mid-range of objective gravity. Of course, in a manslaughter case as much as in other cases, it is necessary for a sentencing judge to assess the objective gravity of the offence. However, given the wide variety of criminality embraced by the crime of manslaughter, it is not easy to assign any particular case to a position within a notional range and I would question whether it is helpful to do so. This remains true even if consideration is limited to motor car manslaughter. 23 Mr Thangaraj sought to contrast this case with Borkowski (supra) and R v Cameron [2005] NSWCCA 359, 157 A Crim R 70, arguing that both those cases would fall in the category of "more serious" motor car manslaughter. Each was a Crown appeal, and in each case there had been a sustained and very dangerous course of driving which terminated in a fatal accident. In Borkowski, the respondent's car collided with a vehicle containing an elderly couple, both of whom were killed. In Cameron, the respondent's car collided with a telegraph pole, killing three passengers in the vehicle (and seriously injuring a fourth). 24 In Borkowski, for two counts of manslaughter the respondent had been sentenced to partly cumulative terms aggregating imprisonment for 9 years with an effective non-parole period of 6 years. The Crown appeal was dismissed but, as I shall explain, only in the exercise of the Court's residual discretion. In Cameron, the Crown appeal was allowed and an overall sentence of 8 years with an effective non-parole period of 4 years was increased to an aggregate term of 9 years with a non-parole period of 6 years. 25 There is no need to examine the facts of these cases in any detail. Undoubtedly, they were both very serious cases of manslaughter. It is to be noted, however, that in Borkowski Howie J, with whom McClellan CJ at CL and Simpson J agreed, said that the "very least sentence" that could have been imposed at first instance was an aggregate term of 12 years with a non-parole period of 9 years: [66]. The reason the Court did not intervene and impose such a sentence was that there was a co-offender upon whom a moderate sentence had been imposed which had not been the subject of a Crown appeal. The course of driving in that case was street racing between the respondent and two other vehicles. The driver of one of those vehicles died some time after the incident. However, the driver of the other vehicle was also dealt with for two counts of manslaughter and sentenced to an aggregate term of 8 years with a non-parole period of 5 years. Howie J considered that that co-offender could be seen as equally culpable for the deaths of the victims, and concluded that to increase the respondent's sentence would create a disparity such as to leave him with a justifiable sense of grievance: [67] ff. 26 In Cameron, in delivering the leading judgment, Grove J noted that the Court's intervention was subject to "the well established restraint when proceeding to re-sentence after a successful Crown appeal …": [41]. McClellan CJ at CL, agreeing with the orders proposed by his Honour, observed that "the accepted principles require the respondent to be sentenced at the lowest end of the available range", adding that "a significantly greater sentence may have been appropriate": [3]. 27 Serious as the facts of those two cases were, they did not involve deliberate conduct such as that exhibited by the present applicant. As her Honour made clear in the passage from her remarks quoted above, it was that feature of his conduct which led her to the conclusion that the case was among the more serious of its kind. That was a conclusion well open to her Honour. This ground also is not made out.

Manifestly excessive? 28 Finally, Mr Thangaraj submitted that the sentence of 8 years with a non-parole period of 5 years is manifestly excessive. He relied on the matters argued in respect of the previous ground, and suggested that the appropriate sentence was in the order of 6 years with a non-parole period of roughly 4 years. 29 Such a sentence, in my view, would be inadequate to reflect the applicant's criminality, making all due allowance for his favourable subjective case. Mr Thangaraj can draw no comfort from Borkowski or Cameron for the reasons which I have explained. Those two cases are included in a schedule of decisions of this Court in motor vehicle manslaughter cases from the database of the Public Defenders' chambers, which Mr Babb supplied to us. 30 It is sufficient to refer to some other relatively recent cases on that schedule: R v Do [2000] NSWCCA 459, R v Falzon [2000] NSWCCA 530, R v Lavender [2004] NSWCCA 120 and Lawler v R [2007] NSWCCA 85, 169 A Crim R 415. As one would expect, those cases disclosed a wide range of criminality and the sentences imposed varied considerably. Viewed together, they do not demonstrate that the sentence which her Honour imposed was beyond the bounds of the proper exercise of discretion. It is not manifestly excessive. 31 Accordingly, I find none of the grounds of the application established. I would grant leave to appeal but dismiss the appeal. 32 McCALLUM J: I agree with Hidden J

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