SBF v R

[2009] NSWCCA 231

Court of Criminal Appeal (NSW)|2009-06-22|Before: Spigelman CJ, Johnson J

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Source facts

Court

Court of Criminal Appeal (NSW)

Decision date

2009-06-22

Before

Spigelman CJ, Johnson J

Source

Original judgment source is linked above.

Judgment (79 paragraphs)

[1]

The Applicant's Subjective Features 47 The Applicant was 17 years and two weeks old at the time of the offences. He had no criminal or traffic history. As mentioned earlier, he had held a learner's permit for about 11 months, but had not obtained a driver's licence. 48 The Applicant gave evidence at the sentencing hearing and wrote a letter which was tendered in evidence (ROS21-22). The sentencing Judge made adverse findings concerning aspects of the Applicant's evidence, which will be mentioned later in this judgment (at [59], [64]). 49 The Applicant had formed a relationship with a young woman since the collision, and a son has been born to the relationship in March 2008. Testimonials were tendered from the Applicant's partner and her father, from the Applicant's grandmother and mother and from a butcher with whom the Applicant had undertaken work experience. Each of the testimonials spoke generally as to the Applicant's good character (ROS22-23). 50 As required by law, a background report prepared by officers of the Department of Juvenile Justice was before the sentencing Judge. His Honour made extensive reference to this report in the remarks on sentence (ROS13-16). 51 A psychological report by Ms Katie Seidler dated 18 June 2008 was tendered on sentence. The sentencing Judge made extensive reference to Ms Seidler's report (ROS16-21). Ms Seidler's report recited the Applicant's satisfactory progress through primary school before difficulties developed in his secondary education, culminating in his expulsion from school in Year 9. The family history given to Ms Seidler by the Applicant referred to a disturbed and dysfunctional family environment, including substance abuse and domestic violence. The Applicant informed Ms Seidler that he had been unemployed for about two years. Psychological testing showed that the Applicant's overall intelligence was estimated to be in the average range. 52 As mentioned earlier, the Applicant was injured in the collision. A report from the treating doctor was tendered on sentence (ROS23-24). The Applicant was unconscious upon arrival at hospital. He had an open appendectomy wound. He had a dislocated rib, but no fractures. The Applicant had sustained cuts on his eyelid, scalp and knee that required sutures. He had pulmonary contusions. There was no evidence of any ongoing injury at the time of sentence and this was consistent with the treating doctor's prognosis. 53 The aunt of the victim, DF, gave evidence on behalf of the Applicant and said that the Applicant was happy-go-lucky before the collision and had expressed to her his contrition and remorse (ROS22).

[14]

62 His Honour addressed a defence submission concerning the victim impact statements in the following way (ROS27): "Mr Booth submitted that whilst the victim impact statements excited feelings of sadness they were not relevant to sentencing proceedings. Whilst this may strictly be true, in my view they do no more than outline, in a very real way, a glimpse of what must be expected to flow from the deaths of two young men and the very serious injury of a young woman." 63 In the course of considering a defence submission concerning the Applicant's youth, his Honour said (ROS27): "Mr Booth drew attention to the offender's youth and to the fact that perhaps because of this he had less ability to deal with responsibility. Whilst this may be the case it seems to me that this is somewhat of a double edged sword. The reality is that the laws of this State permit young people to drive motor vehicles. As I said earlier, it is difficult to imagine what else Parliament can do to make it clear to young people that driving vehicles at speed on public streets is potentially lethal. The offender must have been acutely aware of this . In these circumstances it seems to me that the courts must then assume a role of ensuring that like minded offenders are discouraged from driving in the same manner by imposing sentences that reflect an adequate degree of general deterrence." 64 His Honour accepted certain Crown submissions concerning the Applicant's manner of driving leading to the collision, general deterrence and the utilitarian discount for the pleas of guilty (ROS29): "Mr Bates submitted that as soon as the offender took the car he assumed the responsibility of a prudent driver and I accept this submission. He referred to the evidence, which the offender himself gave, namely that he drove like a hoon. He submitted that I would accept beyond reasonable doubt that the version that the offender gave in his statement dated 16 November 2006 was what actually happened, apart from the fact that [MA] was a passenger and the offender was the driver. And I have no doubt that this is the case.

[15]

Whilst Mr Bates conceded that, generally speaking, aspects of general deterrence, when dealing with young offenders, give way to considerations of rehabilitation, he submitted that this is not so in a case such as this, and I agree with this submission. Mr Bates submitted that the discount for the pleas should be in the order of only ten percent and I agree that this figure is appropriate. The pleas were entered very late and after considerable investigation had been completed by the Crown and at a point where the Crown was obviously prepared for trial." 65 In the course of addressing factors under s.21A Crimes (Sentencing Procedure) Act 1999, his Honour said (ROS29): "In dealing with the offender I have taken into account those matters required to be considered under s 21A of the Crimes (Sentencing Procedure) Act. Aggravating factors which are not part of or inherent in the charges themselves are difficult to identify except perhaps for the very serious nature of the injuries to [KL] . As against that, the offender does not have any record of previous convictions. I am satisfied that he was a person of otherwise good character." 66 With respect to remorse, his Honour concluded (ROS28-29): "On the question of remorse, this is a difficult issue. On balance, however, I am satisfied that whilst he still has some reservations in this regard, he has by his ultimate pleas acknowledged that the death and injuries have been caused by his actions." 67 His Honour observed that the Form 1 matter, to be taken into account on sentence for Count 1, was "a very serious offence and more than just lip service must be paid to it" (ROS30). 68 Before moving to imposition of the specific sentences, his Honour said (ROS30): "As to the offences themselves, as I said they are incredibly serious. The driving involved many of the aggravating factors set out in the Court of Criminal Appeal Guideline in Whyte , there were two deaths and one grievous bodily harm occasioned, the degree of speed was very significant. There was some intoxication, a number of people were put at risk, namely the three passengers in the vehicle in particular. It may be that at that time of the night traffic was light but the reality is that anyone who was on the road at that time or even in the vicinity would have been put at risk by this driving. The driving was erratic and aggressive, the length of the journey was at least 1.6 kilometres and there is reference in the offender's statement to warnings being issued by passengers about the nature of the driving." 69 His Honour accepted a defence submission that "special circumstances" should be found by reference to the Applicant's youth, his need for support upon release from custody and the fact that it was to be his first time in custody (ROS28). However, his Honour rejected a defence submission that there should be a significant alteration to the statutory ratio so that general deterrence could be reflected in the head sentences rather than the non-parole periods. His Honour observed that "the aggregate non-parole periods must also reflect a significant aspect of general deterrence" (ROS28). 70 The sentencing Judge had regard to the principles concerning concurrency, accumulation and totality (ROS28, 30-31). 71 The sentence imposed for Count 2 involved a non-parole period which was 50% of the full term. The sentence imposed for Count 1 (including the Form 1 offence) involved a non-parole period which was 44% of the full term. Although s.44 Crimes (Sentencing Procedure) Act 1999 applies to each individual sentence (Clarke v R [2009] NSWCCA 49 at [11]), it may be noted that the total effective non-parole period was 54% of the total effective head sentence.

[41]

Decision 86 A sentencing Judge must approach victim impact statements (from the family of a deceased victim) within the confines laid down by R v Previtera at 84-87; R v Bollen (1998) 99 A Crim R 510 at 529-530; R v Tzanis at [15]-[18] and Whybrow v R [2008] NSWCCA 270 at [17]. The seriousness of injury to a surviving victim is relevant to the objective gravity of an offence of dangerous driving occasioning grievous bodily harm: R v Tzanis at [13]. 87 The victim impact statements were received and considered for the purposes of s.28 Crimes (Sentencing Procedure) Act 1999. Section 28(3) provides that a court must receive a victim impact statement given by a family victim (of the deceased, MA and DF) and acknowledge its receipt, and may make any comment on it that the court considers appropriate. 88 The sentencing Judge set out, in some detail, the content of the victim impact statements made by the mother of MA and the mother of DF (prepared on behalf of herself and the stepfather and siblings of DF), together with a victim impact statement of the surviving victim, KL. To the extent that complaint is made, under this ground of appeal, to the fact that extensive reference was made to the victim impact statements by the sentencing Judge, I observe that there is no statutory or other restriction upon the extent to which a sentencing Judge may set out the contents of such statements. There is no requirement for victim impact statements to be referred to in some shorthand way. It is understandable, in the present case, that his Honour set out the contents in some detail, a course which was open to the Court under s.28 of the Act. The victim impact statements outlined the devastating consequences upon the families of the deceased young men and also the profound effects upon the young woman who survived the collision. 89 One of the purposes for which a court may impose a sentence on an offender is "to recognise the harm done to the victim of the crime and the community": s.3A(g) Crimes (Sentencing Procedure) Act 1999. 90 The experienced sentencing Judge was conscious of the limitations upon the use of this evidence (see [57], [62] above). I take these statements to be references to the well-known R v Previtera principle governing the use of such material from families of deceased victims. The Applicant's counsel in the District Court had referred to R v Previtera in the course of submissions (T6.49, 5 August 2008). 91 It has not been demonstrated that his Honour misused the victim impact material on sentence in this case. I would reject Ground 2 of appeal.

[43]

92 Ms Francis submitted that a number of findings of the sentencing Judge breached the principle in The Queen v De Simoni (1981) 147 CLR 383 at 389, in that they were consistent with conduct which would give rise to the more serious offence of manslaughter by unlawful and dangerous act involving, from the standpoint of a reasonable person, an appreciable risk of serious injury: Wilson v The Queen (1991) 174 CLR 313 at 333. The comments of the sentencing Judge relied upon in this respect are those underlined in the passages set out at [57], [58] and [63] above. Indeed, in oral submissions (T9.27, 22 June 2009), Ms Francis contended that his Honour's comments extended to an effective finding of reckless indifference to human life, an element of murder. 93 Ms Francis relied upon R v Vukic [2003] NSWCCA 13, where Adams J acknowledged the importance of distinguishing between culpability that would found the offence of manslaughter and that of dangerous driving causing death. 94 The Applicant submitted that his Honour's comments carry with them the irresistible conclusion that the reasonable person (and indeed, the Applicant) would, by such driving as was disclosed in this case, have appreciated, at the very least, the real risk of death. 95 It was submitted that these findings went beyond those available for the offences for which the Applicant stood to be sentenced, and infected the exercise of the sentencing discretion as demonstrated, so it was submitted, by the severity of the sentences imposed upon a juvenile offender. 96 The Crown submitted that the impugned remarks of the sentencing Judge related to an assessment of the Applicant's moral culpability and the degree of his abandonment of responsibility. 97 In written submissions dated 26 June 2009 (furnished in accordance with the Court's direction at the hearing), the Crown acknowledged that motor vehicle manslaughter by gross negligence is a more serious crime than one under s.52A(2), with a greater degree of negligence being required for manslaughter: R v Buttsworth (1983) 1 NSWLR 658 at 664-674. The Crown also pointed to the statutory hierarchy of offences concerning the infliction of death or serious injury by the use of a motor vehicle, which includes, in s.52AA(4), the ability for a jury to convict of an offence under s.52A on a trial for manslaughter: R v Borkowski [2009] NSWCCA 102 at [56]. 98 The Crown observed, however, that the Applicant's complaint here was made by reference to the elements of manslaughter by unlawful and dangerous act. 99 The Crown accepted that manslaughter by unlawful and dangerous act requires the commission of an act causing death that carried with it an appreciable risk of serious injury: Wilson v The Queen at 333; Carroll v The Queen (2009) 83 ALJR 579 at 583 [21]. In the present case, the sentencing Judge observed that it must have been clear to the Applicant that the course of driving was "potentially lethal" (ROS21.8). 100 The Crown referred to R v Vukic, where Adams J at [9]-[11] acknowledged that an offender could not be punished for a crime for which he had not been convicted (manslaughter), although his Honour continued in that case to describe the offender as driving "with considerable recklessness and disgraceful irresponsibility, which resulted in a fatal collision which was clearly foreseeable to any reasonable person". I take the Crown submission by reference to R v Vukic to be that, although it is always necessary for a sentencing Judge to keep in mind the principle in The Queen v De Simoni, strong findings of fact may and ought be made if the facts of the case warrant it, as long as the sentencing Judge does not breach the relevant principle. 101 The Crown submitted that the findings and conclusions expressed by his Honour were open, and that no error had been demonstrated in that respect. 102 Even if error had been established, the Crown submitted that no lesser sentence was warranted in law: s.6(3) Criminal Appeal Act 1912. Decision 103 Two issues arise for consideration under this ground:

[46]

Does the Principle in The Queen v De Simoni Apply ? 104 In imposing sentence, a Judge is entitled to consider all the conduct of the offender, including that which would aggravate the offence, but cannot take into account circumstances of aggravation which would have warranted a conviction for a more serious offence: The Queen v De Simoni at 389. 105 The usual approach to determine whether an offence is a "more serious offence", for the purpose of this principle, is to consider the maximum penalty for the crime: R v Hooper [2004] NSWCCA 10 at [26]. The maximum penalty for manslaughter is imprisonment for 25 years. The maximum penalty for aggravated dangerous driving occasioning death is imprisonment for 14 years. 106 The legislative history of offences now contained in s.52A Crimes Act 1900 suggests that, at the time of their enactment, offences of culpable driving were understood to be offences of lesser gravity than manslaughter by criminal negligence: Attorney General v Bindoff (1953) 53 SR(NSW) 489 at 490; R v Buttsworth at 674-683; Director of Public Prosecutions v Yeo [2008] NSWSC 953; 51 MVR 157 at 161-163 [22]-[32]. The more recent history of s.52A was considered in R v Jurisic at 225-229, including the creation in 1994 of the offences of aggravated dangerous driving causing death or grievous bodily harm, offences carrying maximum penalties of imprisonment for 14 years and 11 years respectively. 107 In R v Borkowski, Howie J (McClellan CJ at CL and Simpson J agreeing) described the hierarchy of driving offences involving death or grievous bodily harm in the following way at [55]-[56]: "55 At the present time, apart from the offences of murder and manslaughter, the Crimes Act contains the following provisions: s 51A, predatory driving causing grievous bodily harm; s 52A, dangerous driving; s 53, furious driving; and s 54, negligent act causing grievous bodily harm. Section 52A contains the following offences: dangerous driving causing death, maximum penalty 10 years; aggravated dangerous driving causing death maximum penalty 14 years; dangerous driving causing grievous bodily harm, maximum penalty imprisonment for 7 years; and aggravated dangerous driving causing grievous bodily harm, maximum penalty imprisonment for 11 years. The circumstances of aggravation are set out in s 52A(7) and include: having a concentration of alcohol of at least 0.15; driving at more that 45 kph above the speed limit; driving to escape police pursuit; and driving while driving skills are very substantially impaired by the influence of a drug or drugs.

[47]

56 As the law presently stands, there is a rational, logical and cohesive hierarchy of offences concerned with the infliction of death or serious injury by the use of a motor vehicle. The offences range from negligent driving causing grievous bodily harm (s 42(1)(b) of the Road Transport (Safety and Traffic Management) Act with a maximum penalty of 9 months imprisonment) through the driving offences in the Crimes Act to manslaughter by gross criminal negligence. All of these offences involve varying degrees of negligence, however the actual conduct may be described, ranging from a lack of care and proceeding through dangerousness to culpable negligence: R v Buttsworth [1983] 1 NSWLR 658. This structure is acknowledged by s 52AA(4) that provides that on a trial for an offence of manslaughter or an offence under s 53 or s 54 a jury can return a verdict of guilty of an offence under s 52A. It is also seen in s 52A(6), a provision that prevents a person being convicted of both manslaughter and an offence under s 52A arising from the same facts." 108 As noted in R v Borkowski at [56], the location of manslaughter above a s.52A offence in the hierarchy of offences is demonstrated by s.52AA(4) concerning alternative verdicts: "(4) Alternative verdicts If on the trial of a person who is indicted for murder or manslaughter or for an offence under section 53 or 54 the jury is satisfied that the person is guilty of an offence under section 52A, it may find the accused guilty of the offence under section 52A, and the accused is liable to punishment accordingly." 109 There is a further unusual feature about the offence of manslaughter. Historically, there has been a statutory qualification concerning the penalty for manslaughter. A maximum penalty was prescribed and, until 1974, other periods of imprisonment were specified in the relevant section. Further, a proviso has existed, and continues to exist, which permits a Judge to discharge the jury (giving rise to an acquittal) if a nominal punishment was sufficient in the circumstances. 110 As enacted in the Crimes Act 1900, s.24 provided: "24. Whosoever commits the crime of manslaughter shall be liable to penal servitude for life, or for any term not less than three years, or to imprisonment for any term not exceeding three years: Provided that, in any case, if the Judge is of opinion that, having regard to all the circumstances, a nominal punishment would be sufficient, he may discharge the jury from giving any verdict, and such discharge shall operate as an acquittal." 111 In an article entitled "Manslaughter by Negligent Act or Omission" (1958) 31 ALJ 630 at 636, Mr HA Snelling QC observed that the NSW legislature (in s.24) had "recognized that in some circumstances manslaughter may merit no punishment". 112 The 1973 Report of the Criminal Law Committee on Proposed Amendments to Criminal Law and Procedure, chaired by his Honour Judge Amsberg, recommended amendment to s.24 concerning punishment for manslaughter: "We recommend that section 24 provide simply that the punishment for manslaughter be penal servitude for life - subject, of course, to reduction under section 442. The words of section 24 recommended for omission appear to us to have no practical effect other than to confuse the reader. We suspect that they are an unintended survival from the days before section 442 was amended, in 1924, to create the same effect as the words under attack." 113 As a result, s.24 was amended by the Crimes and Other Acts (Amendment) Act 1974 to provide as follows: "24. Whosoever commits the crime of manslaughter shall be liable to penal servitude for life. Provided that, in any case, if the Judge is of opinion that, having regard to all the circumstances, a nominal punishment would be sufficient, he may discharge the jury from giving any verdict, and such discharge shall operate as an acquittal." 114 Section 24 was amended again by the Crimes (Life Sentences) Amendment Act 1989, which made a series of amendments (to ss.24, 26, 27, 28 and 29) as part of the "truth in sentencing" statutory regime, whereby a maximum penalty of life imprisonment was replaced by a maximum penalty of imprisonment for 25 years. Since 1989, s.24 has been in the following terms: "24 Manslaughter - punishment Whosoever commits the crime of manslaughter shall be liable to imprisonment for 25 years: Provided that, in any case, if the Judge is of the opinion that, having regard to all the circumstances, a nominal punishment would be sufficient, the Judge may discharge the jury from giving any verdict, and such discharge shall operate as an acquittal." 115 The Hon Mervyn Finlay QC, in his "Review of the Law of Manslaughter in New South Wales" (April 2003, paragraph 6.4, page 26), observed that the "extreme range of moral culpability for the offence of manslaughter is acknowledged by the legislature" in s.24 of the Act in its present form. 116 In R v Forbes (2005) 160 A Crim R 1, Spigelman CJ at 27 [133]-[134] observed that "manslaughter is almost unique in its protean character as an offence. … In its objective gravity it may vary, as has been pointed out, from a joke gone wrong to facts just short of murder". 117 In cases of motor vehicle manslaughter, it has been said to be unproductive to consider, in a manslaughter case, what might have been the appropriate sentence for an offence of aggravated dangerous driving occasioning death: R v Cameron (2005) 157 A Crim R 70 at 75 [26]. Manslaughter has been described as a "markedly more serious offence" than a s.52A offence: R v Cramp (1999) 110 A Crim R 198 at 220 [108]; R v Cameron at 75-76 [28]. 118 Thus, both statutory provisions and relevant authorities point to a hierarchy of offences with manslaughter located above aggravated dangerous driving causing death under s.52A. Despite the unusual features surrounding the offence of manslaughter, it should be treated as a more serious offence for the purpose of the principle in The Queen v De Simoni.

[48]

Was the Principle Breached in this Case ? 119 In assessing the objective seriousness of a s.52A offence, it is necessary and appropriate for a sentencing Judge to make findings with respect to the degree of abandonment of responsibility and the moral culpability of the offender. 120 Clearly, a sentencing Judge cannot approach the question of penalty upon the basis that the offender has committed the crime of manslaughter when the offender stands to be sentenced for a s.52A offence. 121 Motor vehicle manslaughter cases ordinarily involve an allegation of manslaughter by unlawful and dangerous act and/or manslaughter by criminal negligence. Counsel for the Applicant focused upon the former category. However, reference should be made as well, in this context, to criminal negligence manslaughter. These are the two categories of involuntary manslaughter at common law. Manslaughter by an unlawful and dangerous act carries with it an appreciable risk of serious injury: Wilson v The Queen at 333. Manslaughter by criminal negligence involves the commission of an act which causes death where the act of the accused was conscious and voluntary, without any intention of causing death or grievous bodily harm, but in circumstances which involved such a great falling short of the standard of care which a reasonable person would have exercised, and which involved such a high risk that death or grievous bodily harm would follow that the doing of the act merited criminal punishment: Nydam v R [1977] VR 430 at 445; The Queen v Lavender (2005) 222 CLR 67 at 75 [17], 87-88 [60], 90 [72]. 122 It will be apparent that some of the concepts which may arise for consideration in a case of motor vehicle manslaughter by unlawful and dangerous act or by criminal negligence are not far removed from concepts which arise with respect to, in particular, an offence of aggravated dangerous driving causing death under s.52A(2). The guideline judgments of this Court in R v Jurisic at 231 and R v Whyte at 286 [216]-[220], identified a range of factors which bear upon the objective seriousness of a s.52A offence: (i) extent and nature of the injuries inflicted;

[54]

[231] In the case of the aggravated version of each offence under s 52A of the Crimes Act 1900, 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." 124 In Thompson v R [2007] NSWCCA 299, Hislop J (Hodgson JA and Latham J agreeing) observed at [15]: "Whilst there is a real distinction between the extent of culpability reflected in the offence of manslaughter as distinct from the offence of dangerous driving causing death, in some cases the distinction may be a fine one - R v Vukic [2003] NSWCCA 13 at [10], the more so in respect of the aggravated forms of offence under s 52A." 125 In R v Vukic at [10], Adams J said that the distinction between manslaughter and dangerous driving causing death may, in some cases, be a fine one. His Honour then characterised the offence in question, at [11], in the manner mentioned earlier in this judgment (at [100]). 126 The absence of a clear line of demarcation for fact finding on a s.52A offence, given the need to look at the element of risk (and awareness of risk) as part of an assessment of moral culpability, is illustrated in Gillett v R (2006) 166 A Crim R 419, where McClellan CJ at CL (Sully and Hislop JJ agreeing) said at 437-438 [47]: "Where, as in the present case, a person takes control of a motor vehicle in circumstances where they know they represent a real risk to others and it is a risk over which they have no control, they must expect that, if the risk materialises, the penalty which will be imposed will reflect the fact that their offending had a high degree of criminality. A licence to drive a motor vehicle is a privilege which carries with it significant obligations. Those obligations require the driver to not only drive safely on the road but also to ensure that by reason of their physical health and capacity they do not endanger the lives of others. If that obligation is not met and injury or death is occasioned to others, a severe penalty will be appropriate in most cases. Every user of the road accepts a risk of injury or death. Those risks are only acceptable if other users of the road do what they can to minimise or avoid identifiable risks." 127 In the present case, the sentencing Judge was clearly alive to the maximum penalty for the offences to which the Applicant had pleaded guilty and the distinction between those offences and offences of murder and manslaughter. Like Adams J in R v Vukic, the sentencing Judge in this case made strong findings with respect to the level of objective seriousness of the Applicant's crimes, his level of moral culpability and the degree of abandonment of responsibility. That process involved consideration of the factors identified in R v Jurisic and R v Whyte (at [122]-[123] above). The sentencing Judge referred to these factors in the passage set out at [68] above. The most significant aspects were the Applicant's ignoring of warnings (factor (viii) at [122]) of passengers in the vehicle to slow down, combined with grossly excessive speed (factor (iii)) and some impairment by alcohol (factor (iv)). A finding that warnings were ignored whilst driving at very high speed, as part of the assessment of moral culpability and abandonment of responsibility, involves consciousness of risk or danger which is close to, if not overlapping with, consciousness that one's driving is "potentially lethal". 128 There is no bright line test to be applied in a case such as this to guard against a breach of The Queen v De Simoni principle. An assessment whether a breach of The Queen v De Simoni principle has occurred ought involve consideration of the substance of what was said, in the context of the case, and not merely the form of words used. An assessment of the level of moral culpability and the degree of abandonment of responsibility may, in a particular case, involve language which is close to aspects of manslaughter. 129 None of this is to suggest that sentencing Judges may disregard The Queen v De Simoni principle when determining sentence in cases of this type. However, I am not persuaded that the sentencing Judge in this case crossed the line into findings which took into account circumstances of aggravation which would have warranted a conviction for the more serious offence of manslaughter (or murder). In my view, this is not a case where the principle in The Queen v De Simoni has been breached.

[57]

Submissions 133 Ms Francis referred to a summary of sentencing decisions in other cases in support of the contention that the sentences in this case were manifestly excessive. Whilst acknowledging that general deterrence had operation irrespective of the Applicant's youth, it was submitted that its significance required some amelioration in this case. Ms Francis submitted that it remained necessary to determine the role which immaturity and inexperience played in the commission of such offences by young persons. 134 Ms Francis submitted that his Honour did not have regard to s.6 Children (Criminal Proceedings) Act 1987, and in particular s.6(b), despite the fact that the provision had mandatory application given the age of the Applicant. Ms Francis submitted that the sentences imposed were manifestly excessive and that this Court should intervene to resentence the Applicant. 135 The Crown submitted that offences in contravention of s.52A(2) frequently concern offenders who are young men of good character who are genuinely remorseful: R v Whyte. In this instance, remorse only became evident close to the date fixed for trial, and followed a period when the Applicant had said that MA had been the driver at the time of the collision. 136 Whilst a sentencing judge must take the age and character of the offender into account, the Crown submitted that these factors had limited significance in this class of offence, and ought not be given undue weight so that sentences fail to reflect the objective seriousness of the offence and the need for general deterrence. In relation to youth, the Crown submitted that the relevant principle is that, given the prevalence of this offence amongst young drivers, and the need for general deterrence, youth is to be given less weight, as a mitigating factor, than in other types of cases: R v Slattery (1996) 90 A Crim R 519 at 522-3; R v Jurisic at 228. 137 The Crown submitted that youth and good character were appropriately taken into account in this matter by the sentencing Judge. His Honour found special circumstances and imposed a total effective non-parole period that was 54% of the total term. 138 The offences were committed against different victims and, in two cases, a human life was taken. The Crown submitted that a measure of accumulation was appropriate to mark the loss of two lives: R v Whyte at 287-288 [231]. 139 The Crown emphasised that the degree of speed here was very significant and the Applicant was affected by alcohol. His Honour was required to have proper regard to the matter on the Form 1. 140 The Crown acknowledged that the relevant Judicial Commission of New South Wales statistics suggested that the total effective head sentence imposed in this case was towards the top of the range. However, the Crown observed that the same comment could not be made with respect to the non-parole period. By reference to sentencing statistics for aggravated dangerous driving occasioning death offences since R v Jurisic, the Crown submitted that it could not be concluded that the sentences imposed in this case were manifestly excessive.

[75]

[55] Unsurprisingly, experience in Victoria mirrors that in New South Wales. It is precisely because of the tendency of young drivers to drive dangerously that general deterrence must be regarded as of great importance, and youth must be given relatively less weight. In the present case, the victims were themselves young people. The importance of general deterrence is to try and prevent the very kind of damage which occurred here." 150 These observations of the Victorian Court of Appeal apply to the present Applicant. His inexperience does not assist him. He had held a learner's permit for 11 months (and was soon to be tested for a provisional licence). He chose to set out on a journey with three young passengers, and to drive in the manner which he did, after consuming alcohol which impaired his driving to some extent. He elected to drive at very high speed, despite his inexperience. He did not reduce speed in the face of warnings given to him by one or more of his passengers. He took on an adult responsibility and must realise that his inexperience created risks for others and himself. As the Victorian Court of Appeal observed in Neethling at [44], these were "self-evident propositions" which represent the "universal view within our community". The "tendency of young drivers to drive dangerously" explains why general deterrence is of great importance. Young persons were killed or seriously injured by the Applicant's driving and "the importance of general deterrence is to try and prevent the very kind of damage that occurred here". 151 Ms Francis referred in submissions to the Applicant "having little appreciation of his own mortality" (T5.35, 22 June 2009). The Applicant's counsel in the District Court had submitted that "it is also a fact of life that people at this tender age tend to - their brains tend to not allow them to deal with the responsibility that they sometimes demand so vocally" (T6.10, 5 August 2008). In a similar vein, the sentencing Judge in the Victorian County Court in Neethling at [51] had observed that the offender "like many young men … saw [himself] as 'bullet proof'." The fact that young men (in particular) may have such perceptions is a significant reason for general deterrence to be a prominent factor in cases such as these. Inexperience and immaturity, in persons aged 17 years and over, cannot operate as mitigating factors where the offender commits grave driving offences, with fatal consequences, as exemplified by Neethling and this case. 152 The provisions of s.6 Children (Criminal Proceedings) Act 1987 had application to the Applicant. However, he was over 17 years old and his proximity to 18 years was pertinent: R v Voss (at [142] above). The nature of the Applicant's offences were such that general deterrence was a dominant factor on sentence: IE v R (at [143] above). 153 The question is whether the approach of the sentencing Judge revealed error in the way in which his Honour approached the Applicant's youth, inexperience and relative immaturity. I am not persuaded that error has been demonstrated on the part of the sentencing Judge in this respect. 154 In my view, general deterrence was a very significant factor on sentence in this case. His Honour was conscious of the fact that offences of this type are frequently committed by young persons. It remained, of course, necessary to have proper regard to the role of general deterrence as part of the sentencing mix, together with the objective features of the offences and the subjective features of the Applicant in determining an appropriate sentence. 155 These were very serious examples of this class of offence. The Applicant drove the vehicle, with three passengers aboard, on a residential street at a grossly excessive speed whilst affected to some extent by alcohol. The Applicant's moral culpability was substantial, as was his degree of abandonment of responsibility as the driver of the vehicle. 156 It was open to the sentencing Judge to find that warnings were given by one or more of the passengers to the Applicant to slow down. He did not do so. He lost control of the vehicle whilst it was travelling at such a very high speed that it left the road and collided with a power pole, severing the vehicle. One passenger died instantly and another died days later in hospital. A third passenger was injured and disabled in profound ways which will affect her for the rest of her life. 157 Although the Applicant was not to be punished for his denial that he drove the vehicle and his late admission of guilt, these factors serve to distinguish his case from the typical case where there is remorse and an early plea of guilty. 158 The Form 1 offence was a most serious one involving grave and long-lasting injuries and disabilities to KL. It was necessary, as the sentencing Judge recognised, for his Honour to increase penalty on the first count to reflect this additional criminality: Attorney General's Application under s.37 of the Crimes (Sentencing Procedure) Act 1999 (No. 1 of 2002) (2002) 56 NSWLR 146 at 159 [42]-[43]. 159 I have considered the Applicant's submissions made by reference to sentencing statistics and other sentencing decisions. They demonstrate that the total aggregate term imposed upon the Applicant was substantial, although the total effective non-parole period was less so. Caution must be exercised in the use of statistical material: R v Bloomfield (1998) 44 NSWLR 734 at 739. Further, the Applicant was sentenced for two most serious offences with a third serious offence being taken into account on sentence. The Applicant's late pleas of guilty and late remorse are other factors differentiating this case from typical cases. 160 This case is a stark example of the immense tragedy which can befall young persons and their families when responsibility is abandoned, in circumstances of high moral culpability, by a young person behind the steering wheel of a motor vehicle. A court is presented with the challenging task of passing sentence. The guideposts to the appropriate sentence point in different directions, reflecting the tension between relevant sentencing principles: Veen v The Queen (No. 2) [1987-1988] 164 CLR 465 at 476. However, the objective seriousness of these offences, and the need for general deterrence, are dominant considerations and remain so even where the offender is young and inexperienced. 161 The sentences must be seen to have a reasonable proportionality to the objective circumstances of the crimes, and persuasive subjective circumstances must not lead to inadequate weight being given to the objective circumstances: R v Musumeci (NSWCCA, 30 October 1997, BC9705741, page 5): R v Jurisic at 228; Neethling at 434 [58]. Given that the Applicant was to be sentenced for two offences, the totality principle also had application: R v MMK (2006) 164 A Crim R 481 at 486 [11]-[13]. 162 I accept that the sentences imposed upon the Applicant are substantial. However, I am not persuaded that the sentences are manifestly excessive in the required sense, that is, that they are unreasonable or plainly unjust: Markarian v The Queen (2005) 228 CLR 357 at 370-371 [25].

Parties

Applicant/Plaintiff:

SBF

Respondent/Defendant:

Cases Cited (27)

Reported Decision: 198 A Crim R 219[2010] ALMD 122[2010] ALMD 123[2010] ALMD 12153 MVR 438

The Queen v De Simoni (1981) 147 CLR 383 Clarke v R [2009] NSWCCA 49 R v Jurisic [1998] 45 NSWLR 209 R v Whyte (2002) 55 NSWLR 252 R v Berg [2004] NSWCCA 300 R v Tzanis [2005] NSWCCA 274 House v The King (1936) 55 CLR 499 R v Merritt (2004) 59 NSWLR 557 R v Takai (2004) 149 A Crim R 593 R v Previtera (1997) 94 A Crim R 76 R v Bollen (1998) 99 A Crim R 510 Whybrow v R [2008] NSWCCA 270 Wilson v The Queen (1991) 174 CLR 313 R v Vukic [2003] NSWCCA 13 R v Buttsworth (1983) 1 NSWLR 658 R v Borkowski [2009] NSWCCA 102 Carroll v The Queen (2009) 83 ALJR 579 R v Hooper [2004] NSWCCA 10 Attorney General v Bindoff (1953) 53 SR(NSW) 489 CASES CITED : Director of Public Prosecutions v Yeo [2008] NSWSC 953; 51 MVR 157 R v Forbes (2005) 160 A Crim R 1 R v Cameron (2005) 157 A Crim R 70 R v Cramp (1999) 110 A Crim R 198 Nydam v R [1977] VR 430 The Queen v Lavender (2005) 222 CLR 67 Thompson v R [2007] NSWCCA 299 Gillett v R (2006) 166 A Crim R 419 R v Peake (2002) 37 MVR 354; [2002] SASC 303 R v Slattery (1996) 90 A Crim R 519 SS v R [2009] NSWCCA 114 R v Voss [2003] NSWCCA 182 IE v R [2008] NSWCCA 70; 183 A Crim R 150 Director of Public Prosecutions v Neethling [2009] VSCA 116; 52 MVR 422 R v Bloomfield (1998) 44 NSWLR 734 Veen v The Queen (No. 2) [1987-1988] 164 CLR 465 R v Musumeci (NSWCCA, 30 October 1997, BC9705741) R v MMK (2006) 164 A Crim R 481 Markarian v The Queen (2005) 228 CLR 357 Attorney General's Application under s.37 of the Crimes (Sentencing Procedure) Act 1999 (No. 1 of 2002) (2002) 56 NSWLR 146

[2002] SASC 303

[2009] VSCA 116

(1981) 147 CLR 383

(2002) 55 NSWLR 252

(1936) 55 CLR 499

(2004) 59 NSWLR 557

(1991) 174 CLR 313

(1983) 1 NSWLR 658

(2009) 83 ALJR 579

(2005) 222 CLR 67

(2002) 37 MVR 354

(1998) 44 NSWLR 734