Rose v R

Crimes Act 1900 LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 Criminal Appeal Act 1912

Ayton v R [2008] NSWCCA 13; 180 A Crim R 578 Bhuiyan v R [2009] NSWCCA 221 Binnie v R [2010] NSWCCA 14 R v Elchami (Court of Criminal Appeal, 15 December 1995, unreported) R v Errington [2005] NSWCCA 348; 157 A Crim R 553 R v Hei Hei [2009] NSWCCA 87 CASES CITED : R v Hemsley [2004] NSWCCA 228 R v Jurisic (1998) 45 NSWLR 209 R v Palu [2002] NSWCCA 381; 134 A Crim R 174 R v Price [2004] NSWCCA 186 R v Whyte [2002] NSWCCA 343; 134 A Crim R 53 TG v R [2010] NSWCCA 28 Whybrow v R [2008] NSWCCA 270

PARTIES: Glen Wayne Rose (App) The Crown (Resp)

COUNSEL: A Francis (App) P Miller (Resp)

SOLICITORS: Legal Aid Commission (App) Director of Public Prosecutions (Resp)

IN THE COURT OF CRIMINAL APPEAL 2007/7527

McCLELLAN CJ at CL SIMPSON J FULLERTON J

6 AUGUST 2010 Glen Wayne ROSE v R JUDGMENT 1 McCLELLAN CJ at CL: I agree with Fullerton J. 2 SIMPSON J: I agree with Fullerton J. 3 FULLERTON J: The applicant seeks leave to appeal against the severity of sentences imposed in the District Court in Sydney on 20 March 2009 after pleading guilty to three counts of aid and abet dangerous driving occasioning death contrary to s 52A(1)(c) of the Crimes Act 1900, carrying a maximum penalty of 10 years imprisonment, and one count of aid and abet dangerous driving occasioning grievous bodily harm contrary to s 52A(3)(c), which carries a maximum penalty of 7 years imprisonment. 4 For each of the three counts where death was occasioned the applicant was sentenced to terms of imprisonment of 3 years with non-parole periods of 2 years with each sentence being accumulated by four months. For the count where grievous bodily harm was occasioned the applicant was sentenced to a term of 2 years and 3 months with a non-parole period of 18 months. This sentence was then partially accumulated on the aggregate sentence for the first three counts. The total effective sentence was imprisonment for 3 years and 8 months, to date from 4 March 2009 expiring on 3 November 2012, with a non-parole period of 2 years and 10 months expiring on 3 January 2012.

5 In the sentence proceedings it was agreed that the particulars of aiding and abetting another to drive in a manner dangerous to others, an element of each offence, consisted in the applicant permitting JA to drive his vehicle on a dirt road, when he knew or believed she was aged between 14 and 15 years and was therefore both an unlicensed and inexperienced driver, and permitting six passengers to travel unrestrained in the rear tray of the vehicle while it was driven by JA.

6 The first ground of appeal contends that the sentencing judge erred by failing to give effect to his finding of special circumstances when the effective non-parole period exceeded the statutory ratio specified in s 44 of the Crimes (Sentencing Procedure) Act 1999 after partial accumulation of each of the four counts. 7 The second ground of appeal is that his Honour erred in identifying aggravating features of the offending by finding that: (a) the injury caused by the offences was substantial, as provided for in s 21A(2)(g) of the Crimes (Sentencing Procedure) Act ; (b) the emotional harm caused to the deceaseds' parents was substantial, as provided for in s 21A(2)(g); (c) the offences involved multiple victims, as provided for in s 21A(2)(m); and (d) the offences were committed with disregard to public safety, as provided for in s 21A(2)(i).

8 The third ground of appeal contends that the sentences were manifestly excessive. 9 The Crown conceded that were the Court satisfied that his Honour took into account the aggravating factors in (c) and (d) above, as it was submitted by the Crown he appeared to have done, he did so in error. It was accepted that since the disregard to public safety is an inherent feature of the offence of driving in a manner dangerous contrary to s 52A of the Crimes Act, it is not available to be taken into account in aggravation of that offence (see R v Hei Hei [2009] NSWCCA 87). It was also accepted that, in the circumstances of this case, where there were four separate offences involving four separate victims, to take into account the fact that multiple victims were involved as an aggravating feature of the offending under s 21A(2)(m) of the Crimes (Sentencing Procedure) Act was to engage in impermissible double counting.

10 The Crown also accepted that were his Honour to have taken into account the aggravating factors in (a) or (b) above, that would also constitute patent error being contrary to what this Court has most recently stated to be the law in Whybrow v R [2008] NSWCCA 270. The Crown submitted, however, that on a proper reading of his Honour's sentencing remarks he did not in fact take the deaths of the young people into account as an aggravating factor (having been informed by the Crown in sentence proceedings that this was an impermissible approach), and did not make a finding that the grievous bodily harm suffered by AnB was substantial. (I note that there was no medical evidence tendered on sentence which identified the nature of the injuries he sustained in any event and the agreed facts makes no reference to the injuries he suffered.) It was also submitted by the Crown that although his Honour referred to the emotional loss resulting from the offences as substantial, and referred to the devastating effect on the families of the young people who were killed, he did not do so in an impermissible way, but did so simply to identify the aggravating factor in s 21A(2)(g) of the Crimes (Sentencing Procedure) Act and to emphasise that the offences for which the applicant was to be sentenced were serious and that the community was entitled to expect retribution. This, it was submitted, was an approach in accordance with R v Palu [2002] NSWCCA 381; 134 A Crim R 174 where Howie J (Levine and Hidden JJ agreeing) said at [37]: "The attitude of the victim cannot be allowed to interfere with a proper exercise of the sentencing discretion. This is so whether the attitude expressed is one of vengeance or of forgiveness: R v Glen (NSWCCA, unreported, 19 December 1994). Sentencing proceedings are not a private matter between the victim and the offender, not even to the extent that the determination of the appropriate punishment may involve meting out retribution for the wrong suffered by the victim. A serious crime is a wrong committed against the community at large and the community is itself entitled to retribution. In particular, crimes of violence committed in public are an affront to the peace and good order of the community and require deterrent sentences: Henderson (NSWCCA, unreported, 5 November 1997). Matters of general public importance are at the heart of the policies and principles that direct the proper assessment of punishment, the purpose of which is to protect the public, not to mollify the victim." 11 I am unable to agree with the Crown's construction of his Honour's sentencing remarks. In my view the following passage makes it clear that his Honour's approach to the question of whether there were established factors of aggravation in this case was in error in the way contended for by the applicant. His Honour said: "The relevant aggravating factors pursuant to s 21A of the Crimes (Sentencing Procedure) Act , and referred to by the Crown, are also matters which the court ought to take into account in determining the objective criminality involved. One of those factors is that the injury, emotional harm and loss caused by the offences was substantial.

Evidence was given before me at the Armidale District Court by the victims' parents and relatives which clearly showed the devastating effect of the deaths of the victims on the families involved. Other relevant s 21A factors are that the offences were committed without regard to public safety, involved multiple victims and involved a grave risk of death to persons. " (emphasis added)

12 I am satisfied that the second ground of appeal has been made out. I am also satisfied that another sentence is warranted in law, as provided for in s 6(3) of the Criminal Appeal Act 1912, since his Honour was expressly of the view that the aggravating factors required that the only appropriate sentence was one of full-time custody and, as is also clear from the sentencing remarks, the aggravating factors he identified were taken into account in the calculation of the sentences imposed on each of the four counts.

13 In re-sentencing the applicant it will be necessary to refer to the guideline judgment in R v Whyte [2002] NSWCCA 343; 134 A Crim R 53 in order to make an assessment of the applicant's moral culpability for the death of three young people and the serious injury suffered by AnB. It will also be necessary to consider the extent to which the applicant's moral culpability is reduced because of his intellectual disabilities, it being conceded by the Crown that his disabilities are causally related to the offending.

14 In the course of re-sentencing I also propose to take into account his Honour's finding of special circumstances which makes it unnecessary to consider whether he made sufficient allowance for his finding as contended for in the first ground of appeal. It will not be necessary to consider the third ground of appeal. The evidence in the sentence proceedings and available for consideration on re-sentence 15 A statement of facts was tendered by consent on sentence together with the applicant's record of interview with police on his arrest. A neuropsychological report from Ms Lynda Troy was tendered as was a report from Dr Robert Delaforce, forensic psychiatrist. The applicant gave evidence in the sentence proceedings that the account of the accident given to both Ms Troy and Dr Delaforce was the truth. In his report Dr Delaforce referred to medical records relating to the applicant's medical history in connection with a diagnosis of cerebral palsy and epilepsy as a young child. Some of these records were also tendered.

16 From that material the following facts are derived for sentencing purposes.

The circumstances in which the offence was committed 17 On the morning of 2 February 2007 a group of young people, all aged between 14 and 17 years of age, were at the Captain Cook Skate Park at Warialda, a small country town between Moree and Inverell in western New South Wales. The group included JA, ES (deceased), KW (deceased), AmB (deceased), and three other young people CA, AnB (who suffered grievous bodily harm) and AM. The young people knew each other from school, and were in each other's company on the day of the offence at the end of the Christmas holidays. 18 Although the applicant was an adult, being aged 32 at the date of the offence, he was acquainted with the young people, to varying degrees, since they all lived in Warialda. The applicant was well known to at least some of the young people as a person who was intellectually disabled.

19 The applicant was driving his Toyota utility in the vicinity of the skate park when AnB motioned for him to pull over. After a brief conversation with one of the young people the applicant used the toilet facilities within the park. At either AnB's request or one of the other young people's request, the applicant handed over his car keys so they could listen to the radio. Whilst the applicant was in the toilet, JA and ES sat in the passenger seat of the applicant's vehicle while AnB drove the vehicle around the skate park. He did so without the applicant's knowledge or consent. The applicant told Dr Delaforce that he felt angry when he learnt they were driving his car. 20 When the applicant emerged from the toilet he motioned for AnB to bring the vehicle back. Once the vehicle was returned, a number of the young people asked the applicant to allow them to take turns to drive around the skate park. The applicant allowed a number of the young persons, including JA, to drive the vehicle around the dirt track near the skate park whilst he was seated in the front passenger seat.

21 It would seem that some of the young people felt that the skate park was too exposed and that their unlicensed driving might come to notice. It was decided between them, or some of them, that they should go to the Racecourse Road, a few kilometres out of Warialda township, to continue their driving. The applicant agreed. Racecourse Road was an unsealed road with low traffic flow. 22 The applicant drove with CA and AmB in the cabin of the vehicle. KW, JA, ES, AM and AnB walked towards Racecourse Road and met up with the applicant and the two passengers.

23 Once at Racecourse Road the applicant allowed AnB, KW and JA to drive up and down the road in turn. During each of these trips the applicant remained in the front passenger seat while the remaining young persons who were not driving were unrestrained in the rear tray of the utility. There is no evidence as to the time either AnB or KW were in control of the vehicle or the length of the roadway they drove along before JA was permitted to drive.

24 While JA was driving she lost control of the vehicle as a result of which it left the roadway and collided with a tree. ES, KW and AmB were ejected from the tray of the utility and died either at the scene or later in hospital. AnB, who was also ejected from the tray, suffered serious injury. The applicant sustained a broken collarbone, a fractured skull and injury to his eye. 25 In an interview with police AnB said that everyone was driving sensibly, including JA. He said that he did not know how she lost control of the vehicle or why. In his interview with police, AM said the applicant told him not to exceed 50-60 km/h when he was driving. He said that no one was being silly when they were driving but that when JA went around a corner she lost control.

26 CA explained to police how they prevailed upon the applicant to allow them to drive. She said they asked if they could drive and he said "Yeah". He told them not to be stupid. She said they were driving sensibly. Later in the interview she was asked by police whether the applicant encouraged anyone to drive. She answered, "No he didn't encourage anyone, it was just if someone asked".

27 CA also said of JA's driving, " it sounded as though she was pushing on the accelerator and then it just sort of started sliding sideways, the front end tipped like a metre towards the road." She went onto say that that: "…(JA) was trying to steer back into it, but it just hit the contour bank and then … we started going into the trees. That's all I remember". The applicant's account

28 The applicant told police that he met the young people at the park and that they asked him to take them for a drive. He said that he knew it was wrong but that "they just kept at me". He told Ms Troy that he knew he should not have let the young people drive and that he refused a couple of times but they talked him into it. He told Dr Delaforce that he was angry with the young people for driving his vehicle at the skate park without his permission and that he tried to get away from them. When Dr Delaforce asked why he continued to let the young people take turns driving the vehicle, he said that he refused them twice but then he agreed to allowing them to drive the car. He said the young people did not threaten him and that they were not nasty when they asked to be allowed to drive. He said that one or two of the young people asked him nicely. He said that he was not offered a reward to allow them to drive but they just kept on asking. He said, "I say I was pressured I think. I don't know how". He went on to say, "I'm soft at heart. I never hurt anyone. I never would. Not deliberate anyway. That's my problem". 29 As to the manner in which the young people drove his vehicle the applicant told the police that at the start they were not silly but that he did ask JA to slow down. He said she did not start off (driving) silly, but she started "gaining pace". He went on to say, "I tried to tell her to slow down ... she didn't … she could've put her foot on the brake but I didn't see her put it on the brake". He told Dr Delaforce that he gave the young people rules about driving the vehicle which he thought included not driving more than 40 km per hour. He said that the others responded to his request to slow down.

30 In his interview with police the applicant acknowledged that he may have placed the lives of the young persons at risk by allowing them to travel in the tray of the utility when JA was driving. He told Dr Delaforce that initially he was worried about the young people in the tray of the utility because he thought accidents could happen if the vehicle was being driven too fast. Subsequently, however, he said he forgot about the young people in the tray of the vehicle.

31 On the appeal the Crown sought to draw attention to the fact that under cross-examination in the sentence proceedings in March 2009 the applicant said the following: "Q: Do you accept that being the adult you have to take sole responsibility for your actions? A: Yes to my action.

Q: Yes and do you agree that it was through your actions and that action was that you allowed a young person, a child, to drive your motor vehicle? A: Yes.

Q: You accept that was your responsibility? A: Yeah, yes.

Q: Do you accept that as an adult you knew that it was not right for a young person, particularly a 13 or 14 year old, to drive the vehicle? A: Yes.

Q: Do you also accept that it was dangerous and put other people at risk by driving a vehicle with unrestrained people in the ute? A: Yes.

Q: In relation to your driving licence you've had that since 1997 haven't you? A: Yeah I think it was then, yes.

Q: Do you accept that when you have your driving licence you have a responsibility to other road users? A: Yes.

Q: You have a responsibility to passengers? A: Yes.

Q: Do you agree that driving as an everyday occurrence requires you to make decisions about risks that should or should not be taken? A: Yes.

Q: Do you accept therefore that you took a serious risk on 2 February 2007? A: Yes.

Q: And you knew that what you did was wrong? A: Yes.

Q: Do you accept then that it was your responsibility? A: Yes."

32 I do not consider that the applicant's evidence carries any significant weight in assessing his moral culpability. There can be no doubt that by the time of the sentence proceedings, over two years after the offence, the applicant had time to fully reflect upon and appreciate the tragic consequences that resulted from him permitting JA to drive his vehicle with other young people in the tray of the utility. In addition, in accepting criminal responsibility for those acts, and the role he played in the death and serious injury that resulted, he was doubtless guided by his lawyers as to the constituent elements of the offences to which he had pleaded guilty. Evidence of the applicant's intellectual disability

33 After comprehensive testing by Ms Troy the applicant satisfied the diagnostic criteria for a person with mild mental retardation. In so far as is relevant for the purposes of sentence she reported as follows: "It is my opinion that the profile of intellectual, cognitive, and adaptive deficits … have compromised his ability to demonstrate appropriate assertiveness to peer pressures, specifically to the young person's requests on 2 February 2007 to be allowed to drive his motor vehicle.

His cognitive impairment is at a level where his reading is at the level of a 5 year old, and he has mild impairment in understanding what he hears. He has poor verbal and commonsense reasoning, both of which impair his ability to evaluate and understand situations and problems solve. In the situation of the accident, when he was asked to allow young persons to drive his car, although he was aware this was not the right thing to do, he does not have the reasoning power to integrate that information, and will have difficulty in integrating conflicting information (eg he is being asked to do something he knows is wrong, others are telling him it is okay). This leaves him very vulnerable to the influence of others. It also means that if his initial strategy for asserting himself is not successful (eg "I said No a couple of times"), he will not be able to think of another strategy.

He has very limited attentional (sic) capacity, and showed moderate to severe deficits in his ability to mentally manipulate information, so he will become confused or overwhelmed easily, and have difficulty in considering more than one aspect of his situation at a time…

…Taken together, these aspects mean that he will not be able to respond when under pressure, and will respond in the way that is most salient or immediate, on a superficial level. When under pressure to respond, as in the situation when the young persons were asking him to let them drive his vehicle, he would initially be able to say no, as this was the most obvious response, however as the request is repeated, he is likely to become more overwhelmed, not be able to process the discrepancy between what he says is right and what others tell him/ask him to do. With repetition the request from the others becomes the most salient response, and his weakness in regulating his behaviour will lead to him agreeing to the strongest requests…"

34 In Dr Delaforce's opinion, although the applicant was capable of recognising that acquiescence to the requests of the young people was wrong, he would be much more vulnerable to being persuaded into agreeing to allow them to drive his vehicle because of his intellectual and related disabilities. After citing an unrelated incident three months earlier, when the applicant was unable to appropriately resist a person who was intent on pulling down his pants in public, despite knowing that it was wrong, Dr Delaforce went on to say that: "…appropriate balance is required when interpreting the relevance of his (the applicant's) lower than normal intellectual and related functioning and his capacity to act appropriately… He knew it would be wrong if the young persons drove his motor vehicle but that was not enough for him to maintain the necessary control of the situation. He had reduced capacity to deal appropriately with the young persons' continued requests and deny their requests or terminate their driving before the fatal accident…".

35 The Crown accepted that it was appropriate for the applicant's compromised intellectual and functional capacity to be taken into account on sentence, in accordance with long established principles most recently restated by this Court in Bhuiyan v R [2009] NSWCCA 221 and Binnie v R [2010] NSWCCA 14 at [21]-[25]. In Bhuiyan at [21] McClellan CJ at CL quoted with approval the established principles when sentencing a person with a mental illness for which R v Hemsley [2004] NSWCCA 228 is authority: "Mental illness may be relevant - and was relevant in the present case - in three ways. First, where mental illness contributes to the commission of the offence in a material way, the offender's moral culpability may be reduced; there may not then be the same call for denunciation and the punishment warranted may accordingly be reduced: Henry at [254]; Jiminez [1999] NSWCCA 7 at [23]; Tsiaras [1996] 1 VR 398 at 400; Lauritsen (2000) 114 A Crim R 333 at [51]; Israil [2002] NSWCCA 255 at [23]; Pearson [2004] NSWCCA 129 at [43].

Secondly, mental illness may render the offender an inappropriate vehicle for general deterrence and moderate that consideration: Pearce (NSW CCA, 1 November 1996, unreported); Engert (1995) 84 A Crim R 67 at 71 per Gleeson CJ; Letteri (NSW CCA, 18 March 1992, unreported); Israil at [22]; Pearson at [42].

Thirdly, a custodial sentence may weigh more heavily on a mentally ill person: Tsiaras at 400; Jiminez at [25]; Israil at [26].

A fourth, and countervailing, consideration may arise, namely, the level of danger which the offender presents to the community. That may sound in special deterrence; Israil at [24]."

The significance of the applicant's disabilities in the calculation of sentence 36 The sentencing judge was satisfied that having regard to the psychiatric and psychological evidence, which I have extracted at some length, and the authorities to which he was referred, the applicant's moral culpability for the deaths of the three young persons and the serious injury of the fourth young person was reduced.

37 His Honour did not expressly consider whether general deterrence should be moderated but he did accept that a custodial sentence would weigh more heavily on the applicant given his intellectual disabilities. I am of the view that the principle of general deterrence in this case does not have the weight otherwise attributed to it when sentencing for a breach of s 52A of the Crimes Act (see R v Jurisic (1998) 45 NSWLR 209 per Spigelman CJ at [228]). It is not, however, entirely neutralised.

38 His Honour also acknowledged and took into account in the calculation of sentence, the principle for which R v Elchami (Court of Criminal Appeal, 15 December 1995, unreported) is authority, namely that the extent of an offender's diminution in intellectual capacity can be such that the community would recognise that such an offender will receive a lesser sentence than would otherwise be the case, given the diminished responsibility for the crimes committed as a result of an offender's diminished intellectual capacity.

39 His Honour was also satisfied that the applicant had not abandoned responsibility in allowing the young people to drive his vehicle, since it was agreed for sentencing purposes that he did not encourage them to drive but simply complied with their requests; that he was in the front passenger seat of the vehicle at all times and that he warned the young people against driving recklessly.

41 The sentencing judge's enquiry into whether the applicant had abandoned responsibility for his conduct was in accordance with an approach to an assessment of aggravating factors proposed in the guideline judgment in Whyte. At [216] the Chief Justice listed the aggravating factors in a typical or frequently recurring breach of s 52A of the Crimes Act as follows: "(i) Extent and nature of the injuries inflicted. (ii) Number of people put at risk. (iii) Degree of speed. (iv) Degree of intoxication or of substance abuse. (v) Erratic driving. (vi) Competitive driving or showing off. (vii) Length of the journey during which others were exposed to risk. (viii) Ignoring of warnings. (ix) Escaping police pursuit."

42 At [218] his Honour identified factors (i) and (ii) as focusing on the particular features of the breach of s 52A under consideration, while the remaining paragraphs refer to the conduct of the offender in breaching the section. He went on to say: "[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] 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 s52A, 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.

[232] The guideline is, to reiterate, a "guide" or a "check". The sentence imposed in a particular case will be determined by the exercise of a broad discretion taking into account all of the factors required to be taken into account by s21A of the Crimes (Sentencing Procedure) Act ."

43 In TG v R [2010] NSWCCA 28 at [28] Howie J noted that in Whyte, at the paragraphs extracted above, the Chief Justice did not regard the fact that a number of persons were put at risk as a factor impinging upon moral culpability. Howie J was of the view, however, that his Honour should be taken to be referring to members of the public in general being put at risk by offenders driving dangerously. He considered that it was relevant to an assessment of the applicant's culpability in the case he was considering that the applicant knowingly exposed four passengers to risk when he overtook another vehicle across double unbroken lines on a wet road at night at a speed slightly over 100 km per hour. In dismissing the appeal against the severity of the sentence Howie J also referred to R v Price [2004] NSWCCA 186 where at [35]-[38], in a judgment published jointly with Simpson J, he noted the passage in Whyte where the Chief Justice considered that the number of people put at risk did not directly impinge on moral culpability and said: "[35] … We accept, with respect, that to be the case where one is considering only the fact that persons generally, such as other users of the roadway, are put at risk by the driving of the accused. It is in such a case, like (i), "Extent and nature of the injuries", a consequence of the driving and says nothing about the moral culpability of the driver.

[36] But it is a different situation where the offender knows the extent of the risk that was being created because he or she was aware of persons actually being placed in danger at the time of the driving. For example, it must be the case that the moral culpability of a driver of a bus full of passengers who is driving dangerously is worse than the moral culpability of the lone person driving the family vehicle in the same manner. So in the present case the fact that the respondent was driving two passengers in his vehicle at the time of the accident increased his moral culpability for driving in a manner dangerous or under the influence of alcohol. See R v Skrill [2002] NSWCCA 484 at [75] per Carruthers AJ with whom Hulme J generally agreed.

[37] It is clear that the Chief Justice in both Jurisic (1998) 45 NSWLR 209 and Whyte was not attempting to identify all the matters that might impact upon the assessment of the moral culpability of an offender in any particular case. For example, the type of vehicle being driven might be an aggravating factor that goes to the moral culpability or the abandonment of responsibility of the driver in a particular case. The Chief Justice should not be taken in Whyte to be suggesting that the number of persons put at risk cannot be a matter that can affect an offender's moral culpability, but only that in the normal case it would not.

[38] It is trite that an offence under s 52A is a crime that has two distinct elements: a culpable act of driving and the consequence of that act. It is the consequence of the act of driving that gives rise to the particular offence committed and that makes the offender liable to a maximum penalty far in excess of that prescribed for the corresponding traffic offence. The fact that more than one person was killed as a result of the driving is such a significant attribute of the criminality arising from the offences charged against the respondent, that it had to result in a significant increase in the sentence that would have been appropriate in the typical case where only one person had been killed."

44 In this case, the fact that there were a number of young people put at risk when the applicant permitted JA to drive along Racecourse Road is material to an assessment of his moral culpability. It is also relevant that more than one of those young people was killed, which is to be distinguished from the loss of life per se which is not relevant to an assessment of the applicant's moral culpability (see Howie J in TG at [27]). However, in the particular circumstances of this case, where I am not satisfied that the offender fully appreciated the extent of the risk that was being created by him permitting JA to drive along Racecourse Road, and where I am satisfied his capacity to evaluate the risk so as to enable him to resist the importuning of the young people was compromised, I do not consider that the exposure of the young persons in the tray of the utility to the risk of injury or death, and the exposure of JA as the driver to the same risk due to her lack of skill, operates to aggravate the applicant's moral culpability to any significant degree. Applying the same reasoning, while the fact that three young people lost their lives and a fourth young person was seriously injured as a result of the applicant's admitted criminal conduct is not irrelevant to the calculation of an appropriate sentence, it does not, in my view, have the effect of aggravating his moral culpability as it would have done were he not suffering under the functional disabilities identified in the evidence of Dr Delaforce and Ms Troy.

45 In addition, while I accept that the evidence reveals that the applicant knew what he was doing was wrong, and that he was aware of the inherent danger in permitting JA to drive with a number of young people unrestrained in the tray of the utility, I am not persuaded that he had the capacity to fully appreciate the extent of the danger the young people were exposed to by his actions, or to appreciate that his conduct was criminal, as contended for by the Crown on appeal (see Ayton v R [2008] NSWCCA 13; 180 A Crim R 578 at [33]-[34]). 46 There are no other aggravating features listed in the guideline judgment relevant to an assessment of the applicant's moral culpability. This Court has emphasised that this list is illustrative, and not definitive, of what is capable of amounting to conduct representing an offender's abandonment of responsibility or level of moral culpability (see R v Errington [2005] NSWCCA 348; 157 A Crim R 553 at [36]). That said, there were no other features of the offending identified by the Crown as deserving of weight in the event that the Court was to re-sentence the applicant. 47 The factor which dominates the re-sentencing exercise is the extent to which the applicant's diminished capacity to resist the repeated requests from a number of the young people who wanted to drive his car, and his compromised capacity to re-evaluate and appreciate the risks inherent in continuing to allow some of them to drive after they had moved from the skate park to Racecourse Road, with others unrestrained in the tray of the utility, impacts on sentence. It was the interplay of both of these features of his disability which led directly to the offender committing the offences to which he has pleaded guilty. 48 In the result, I am satisfied that a custodial sentence should be imposed, but one that effects a reduction in the sentences imposed by the sentencing judge both to reflect the fact that matters of aggravation were taken into account in error and to reflect my finding that there is a much moderated impact of those factors I have identified as aggravating the offending. The applicant's subjective circumstances

49 The applicant was aged 32 at the time of the offences and 34 at the time of sentence. He has no criminal record and was described by his general practitioner as never having caused any behavioural or social problems in the community in which he lived. He lived alone in Warialda, although his sister assisted him to deal with his correspondence and his maternal grandmother attended his home on a regular basis to help him identify and organise his domestic tasks. His social interaction was largely limited to his family or close neighbours and attending a weekly darts competition with his father. 50 According to the Probation and Parole Service pre-sentence report the applicant was bullied and harassed during his school years and, although he completed both primary and secondary schooling, his secondary schooling was undertaken in a special class via correspondence. Since leaving school the applicant has had access to training and employment options through various Commonwealth programs. The first program assisted him to acquire the necessary skills to obtain his driver's licence which he eventually obtained after repeated attempts and with the assistance of another person to complete the written component of the licensing exercise. He has held an unencumbered driver's licence since 1995. His licence was cancelled upon his arrest on the basis of a finding that he is not a fit and proper person to drive a vehicle. There were no entries on his traffic record at the time of cancellation. The Probation and Parole Service report notes that the applicant was the subject of abuse from some family members of the deceased and intrusive media attention, which has left him ostracised from his community. 51 In his affidavit, received without objection for the purposes of re-sentence, the applicant describes having injured himself in prison on a number of occasions by falling over as a result of the eye injury he sustained in the accident. He said that when he fell over a welfare officer, he was moved to a bottom bunk to minimise the risk of harming himself. The eye injury also inhibits his capacity to work in the prison setting although he sometimes helps the wing sweeper by lifting or moving things. He said he was hopeful of improving his literacy by going to a reading and writing class once a week. He said that as he was moved within the prison system he initially found social interaction with other prisoners frightening but that since being housed in Long Bay he has settled down. Since being in custody he has been prescribed antidepressant medication and is maintained on anti-epileptic medication. He said he intends to return to his home upon release and he is hopeful of being able to help people around the town with any projects they might need help with and to help with the sheep kept in the yard near where he lives.

Matters in mitigation 52 In mitigation of sentence I accept, as did the sentencing judge, that the applicant's remorse is genuine and that he has accepted responsibility for his actions and for the deaths and serious injury that resulted. I also take into account the pleas of guilty and allow a 25 per cent discount on each count. I also propose to partially accumulate the sentences on each of the four counts and to adjust the statutory ratio between the non-parole period and the balance of term on each count, and between the effective non-parole period and the balance of term, consistent with his Honour's finding of special circumstances. While there is no assessed benefit the applicant would receive from supervision by the Probation and Parole Service, I note he has been referred to a disability service provider to be assessed for inclusion in a structured living skills program. 53 The orders I propose are: 1. Leave to appeal is granted. 2. The sentences on each of the four counts are quashed. 3. In lieu thereof the following sentences are imposed: (i) In respect of count 1, a term of imprisonment of 2 years and 3 months is imposed comprising a non-parole period of 18 months to date from 4 March 2009 and to expire on 3 September 2010 with a balance of term of 9 months to expire on 3 June 2011.

(ii) In respect of count 2, a term of imprisonment of 2 years and 3 months is imposed comprising a non-parole period of 18 months to date from 4 May 2009 and to expire on 3 November 2010 with a balance of term of 9 months to expire on 3 August 2011.

(iii) In respect of count 3, a term of imprisonment of 2 years and 3 months is imposed comprising a non-parole period of 18 months to date from 4 July 2009 and to expire on 3 January 2011 with a balance of term of 9 months to expire on 3 October 2011.

(iv) In respect of count 4, a fixed term of 12 months is imposed to date from 4 July 2009 and to expire on 3 July 2010.

4. The total sentence is a term of imprisonment of 2 years and 7 months comprised of a non-parole period of 1 year and 10 months and a balance of term of 9 months. The applicant will be eligible for parole on 3 January 2011. **********

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