27 As was said by Mason P at [33-34] in R v Errington 157 A Crim R 553:
" These factors engaged the second limb of the guideline in R v Jurisic as reformulated in Whyte at [228] - [229] as follows:
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 s 52A(3) of the Crimes Act 1900 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.
The nine identified factors refer to the conduct of the offender, as distinct from background subjective factors. Speaking of them, Spigelman CJ said (in Jurisic at 231; 277, restated in Whyte at [218]):
The presence of these latter factors may indicate that the offender may have abandoned responsibility for his or her own conduct. When the presence of such a factor can be so described, then it can be said to be present to a material degree for purposes of determining an appropriate sentence."
28 In the present case, the presence of the failure to stop was identified by the Judge in combination with the applicant's degree of intoxication, the degree of speed and the number of people who had been put at risk as indicating that the applicant had abandoned responsibility for his own conduct. His Honour determined that the applicant's moral culpability for the offence was high.
29 The High Court in Pearce v The Queen (1998) 194 CLR 610 considered the issue of double punishment. The indictment charged the offender with maliciously inflicting grievous bodily harm contrary to s 33 of the Crimes Act and with breaking and entering the dwelling house of the same victim and, while therein, inflicting grievous bodily harm on him contrary to s 110 of the Crimes Act. McHugh, Hayne and Callinan JJ stated (at 623 [40]):
"To the extent to which two offences of which an offender stands convicted contain common elements, it would be wrong to punish that offender twice for the commission of the elements that are common."
And (at 623 [42]):
"It is clear in this case that a single act (the appellant's inflicting grievous bodily harm on his victim) was an element of each of the offences under ss 33 and 110. The identification of a single act as common to two offences may not always be as straighforward. It should, however, be emphasised that the inquiry is not to be attended by 'excessive subtleties and refinements'. It should be approached as a matter of common sense, not as a matter of semantics.
The trial judge sentenced the appellant to identical terms of imprisonment on counts 9 and 10 and made those sentences wholly concurrent. We can only conclude that the sentence on each of those counts contained a portion which was to punish the appellant for his inflicting grievous bodily harm on his victim. Prima facie, then, he was doubly punished for the one act."
30 It was the single act of inflicting grievous bodily harm for which the offender was doubly punished in Pearce.
31 In Dudko (2002) 132 A Crim R 371 this Court dealt with the issue of double punishment. The appellant had been charged with rescuing an inmate in lawful custody by force contrary to s 32 of the Correctional Centres Act 1952 and assaulting a member of a crew of an aircraft contrary to s 206(a) of the Crimes Act. The first charge, 'rescue by force' involved conduct that was the subject of the assault, the second charge. The appellant argued that because a single act of force was common to both the rescue of the inmate and the assault on the pilot, there was a resulting "double conviction" or "double punishment". Spigelman CJ with whom Simpson J and Blanch AJ agreed said at [109]:
" So here the gist or gravamen of the offence under s 32 of the Correctional Centres Act is the rescue, whereas the gist or gravamen of the offence under s 206 of the Crimes Act is the diversion of a pilot from his functions and duties, that is, the hijack. That the element of force in one and the element of assault in the other was, apparently, said to be constituted by the same conduct, does not detract from the proposition that there were two quite distinct offences. In my opinion, there was no double conviction or double punishment."
And at [113]:
"As I have indicated above, the gravamen of the two offences in this case was quite distinct. Although both offences carried maximum penalties of 14 years, in one case the focus was on a rescue by force and in the other case, on a hijack by threat. Even though the force and the threat was constituted by the same act, it cannot be concluded in this case, unlike Pearce , that the appellant has been 'doubly punished for a single act'. In Pearce, the single act was the infliction of grievous bodily harm. That was much more than simply an element of the offence, it was the gist or gravamen of the criminal behaviour. In the present case the gist or gravamen of the criminal behaviour was not the same in the two offences. In my opinion it is not correct to say that there was a double punishment on the facts of this case."
32 For an offence contrary to s 52A(1)(c) the act which constitutes the offence is the driving of a vehicle at the time of the impact causing death in a manner dangerous to another person. The gravamen of the offence has been identified as being "…not just dangerous driving, but doing so in association with the causing of death of one human being": Mason P in Errington at [45]; see also R v Hallacoglu (1992) 29 NSWLR 67 at 75; 63 A Crim R 287 at 294. A failure to stop is not a necessary element of the offence nor does the section contain any provision for punishment for it. Where the facts disclose in an offence of driving in a manner dangerous causing death (or inflicting grievous bodily harm) a failure to stop, the relevance of that factor is confined to an assessment of the abandonment of responsibility (moral culpability) by the offender. It was in this way that the Judge considered on the first count the failure to stop in combination with the degree of intoxication, the degree of speed and the number of people who had been put at risk.
33 For a s 52AB(1) offence, the relevant acts which constitute the offence are the failure to stop and give any assistance necessary that is in the driver's power to give. The failure to stop is a necessary element of the offence. It is the failure to stop and give assistance in circumstances which the driver knows, or ought reasonably to know, that the vehicle has been involved in an impact occasioning death or grievous bodily harm that is the gravamen of this offence.
34 The gravamen of the criminal behaviour in the two offences is not the same. This is not a case where the applicant has suffered double punishment for a single act. In my opinion, the first ground of appeal has not been established.
Ground 2: The sentences imposed were manifestly excessive.
35 The applicant contended that the sentence imposed on each count was manifestly excessive. It was argued in respect of the first count that the sentence was double that of the guideline in Whyte.
36 Spigelman CJ said at [229] in Whyte:
"The guideline for offences against s 52A(1) and s 52A(3) of the Crimes Act 1900 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.'"
37 The guideline of a head sentence of not less than three years (in the case of death) is postulated on the characteristics of a typical case which include "genuine remorse" and a "plea of guilty of limited utilitarian value": Spigelman CJ in Whyte at [204]. In the present case the applicant had pleaded not guilty and no remorse was demonstrated. As the Chief Justice emphasised in Whyte at [232] the guideline is a "guide" or a "check" and 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 s 21A of the Crimes (Sentencing Procedure) Act". Each case depends on its own circumstances.
38 In the present case, the applicant whilst driving under the influence of alcohol and at an excessive speed caused the fatal injuries to Ms Harriss. His moral culpability was of a high order. The maximum penalty for the offence is imprisonment for 10 years. The Judicial Commission sentencing statistics as well as a number of sentences imposed in other cases to which the Court was referred do not persuade me that the sentence was manifestly excessive. The sentence imposed for the first count was, in my opinion, within the discretionary range open to his Honour.
39 The applicant submitted that the sentence imposed for the second count was manifestly excessive. I reject this argument. The Judge found that the impact of the vehicle sent Ms Harriss up onto and along the bonnet, aerial and left front windscreen pillar causing the applicant to slow his vehicle. Notwithstanding the force of the impact the applicant made the decision not to stop and render assistance to her. Ms Harriss had sustained a deep impact injury to the left thigh causing the fracture of her pelvis in several places and fatal head injuries.
40 It was next contended by the applicant that the Judge failed to consider the issue of totality with the result that the ultimate sentence was manifestly excessive.
41 During the proceedings on sentence, the Judge informed counsel that there would be a partial accumulation of sentences to which the applicant's counsel responded: