Wells v R

Proceedings on sentence

1. On 24 June 2022, the sentence hearing was held at Gosford District Court.
2. The Crown Prosecutor tendered a Crown sentence bundle (Exhibit 1) which included the charge certificate and s 166 certificate, a statement of agreed facts, and the applicant's criminal and traffic histories. The applicant's criminal history indicated no prior convictions. As adverted to above, the applicant's traffic history revealed a number of previous traffic offences, including seven speeding offences.
3. A Victim Impact Statement prepared by the deceased's father, Osman Osman, was tendered as part of Exhibit 1 and read aloud to the Court by Mr Osman, who spoke of the profound anguish caused by Ms Osman's death. A Victim Impact Statement written by the deceased's first cousin, Kamali Aydin, was also tendered as part of Exhibit 1 and read aloud to the Court by another relative of the deceased.
4. A bundle was tendered on the applicant's behalf and marked Exhibit W1. It included an engineering report dated 6 March 2022 by Grant Johnston of CSI Australia, which addressed a dispute on sentence as to whether the deceased's vehicle failed to give way; a map of the relevant area and four character references. The character reference provided by Tracy Lindley (a mother of a friend of the applicant's) referred to the applicant's car being a "new car that he had worked hard to purchase". The character reference provided by Paul Mailath expressed his opinion that "(t)here are plenty of 'ratbags' I would have expected to speed over the hill but [the applicant] was absolutely not one of them".
5. The applicant gave evidence in the sentence hearing. In examination-in-chief, the applicant gave evidence that he was 35 years old and married with two children; that he had worked as a carpenter for just under 15 years; that his wife had a photography business; and that his incarceration would effectively cut the household income in half. The applicant marked a map (Exhibit W2) to indicate the journey he took on the night of the offences; and said he had been intending to return to the Caltex Woolworths when the collision occurred. The applicant said he was sorry (see T 5.43ff).
6. In cross-examination, the applicant accepted that his excessive speed and showing off to his friend caused the accident. The applicant acknowledged that, at the time of the accident, he was familiar with the stretch of road; that he was aware that it was a busy public road; that he was aware that the road was not particularly well lit at night time; and that he was aware that the road generally would be relatively busy. The applicant agreed that he made an intentional decision to drive his vehicle as fast as he could to show off to Mr Davies, and that he knew when did so that he was placing many people at risk. The applicant agreed he had been driving for around 12 years, and that he knew of the dangers and responsibility of managing a motor vehicle. In relation to his traffic record, the applicant recalled his speeding offences prior to 2008 when he was a "P-plater" (i.e., a provisional licence holder) but could not recall any of his speeding offences from 2011, 2011, 2012, 2014 or 2018. The applicant did not accept the proposition that he had completely abandoned his responsibility as a driver (but the Crown notes that in the Court, when asked to explain why he maintained that belief, the applicant was unable to say).
7. In re-examination, the applicant said that the road was not busy at the time. In relation to the injuries to Mr Davies, the applicant said that he was sorry. The applicant said that Mr Davies was in a "bad state too" and was "seeing counsellors and stuff like that as well". The applicant agreed that his conduct was at least an abandonment of some of his responsibilities as a driver.
8. As adverted to above, at the sentencing hearing there was a factual dispute as to whether the deceased had failed to give way to the applicant's vehicle at the intersection (such that she was partially responsible for the collision). (The sentencing judge found that the deceased was not responsible in any way for the collision.)

Submissions on sentence

1. The solicitor appearing for the applicant at the sentencing hearing (Mr Mantaj) filed written submissions dated 24 June 2022 and made oral submissions. Mr Mantaj conceded that the applicant had been "showing off"; that the applicant's speed could be characterised as "aggressive"; and that, had the applicant been driving within the speed limit, the distance would have allowed Ms Osman to complete her crossing without any collision. However, the applicant here emphasises that Mr Mantaj's concession was that he (the applicant) was grossly disregarding the rules of the road; and that it was not an acceptance that there was a "gross" abandonment of his responsibility as a driver (see T 3). What was said was that: Whilst it is very clear that the offender in this case was grossly disregarding the rules of the road so far as speeding is concerned nonetheless he doesn't lose the benefit of that assumption that other road users will abide by the road rules. In those circumstances in my submission the failure of another road user, of the victim, to abide by the road rules must eliminate his level of culpability.
2. As noted, the submission was made for the applicant that the deceased had failed to give way and, as such, was partially responsible for the collision. Mr Mantaj argued that this reduced the applicant's moral culpability, submitting that: [A] driver in the position of the offender was entitled to assume that the victim would obey the give way sign. The fact that he himself was disobeying the road rules does not mean that he forfeits the benefit of that assumption. It follows that the offender's moral culpability is reduced on account of the victim's failure to give way.
3. As noted by the applicant on the present application, rejection of the submission that the deceased was partially responsible for the collision removed the basis on which it was argued that the applicant's moral culpability was reduced but did not of itself lead to a finding that his moral culpability was high.
4. In relation to the s 52A(2) aggravated dangerous driving causing death offence, in written submissions it was submitted for the applicant during sentencing that his culpability was "somewhat above that present in the typical case referred to in Whyte but not sufficiently elevated to be described as high". The reference to Whyte is, of course, a reference to Whyte v R (2002) 55 NSWLR 252; [2002] NSWCCA 343 (Whyte), being the guideline judgment relating to the non-aggravated version of the dangerous driving offence. A similar submission was made orally. As to the objective seriousness of the s 53 wanton driving offence, the submission for the applicant (both in writing and orally) was that it was "around the mid-range of offences of its type".
5. Addressing the applicant's traffic record, Mr Mantaj submitted: Certainly, there's nothing on the traffic record of this nature that would suggest that he's got a tendency to speed in the gross manner that he sped on this particular day and your Honour would find that his conduct on this particular day was an aberration and it was out of character for him.
6. The Crown prosecutor filed written submissions dated 23 June 2022 and also made oral submissions. The Crown submitted that a substantial term of full‑time imprisonment was the only available sentencing option; that the applicant's speeding and showing off demonstrated a complete abandonment of responsibility; and that the applicant's degree of moral culpability was high. The Crown argued that the deceased had taken due care but that her judgment about safely crossing was inaccurate because of the illegal actions of the applicant.

Sentencing judgment - R v Wells [2022] NSWDC 748

1. The sentencing judge described the road where the offences occurred, including: that the intersection of the Pacific Highway and Colongra Bay Road, Lake Munmorah, is a T-style intersection with a signposted 80 km/hr speed limit; that the Pacific Highway at that location has two lanes of traffic in each direction, with a turning lane leading into Colongra Bay Road; and a bay in the median strip with give way signs allows traffic to turn onto, and off, the Pacific Highway; that (as the Crown here emphasises) the area around this section of the Pacific Highway is residential; and that leading up to the intersection from the westbound lanes (the direction of the applicant's travel) there is a slight left-hand bend leading up a hill. There is no issue here with that description of the area where the collision occurred.
2. His Honour found that the deceased "made an entirely reasonable decision to cross but only realised as she was crossing that the [applicant] was proceeding at a very high speed" such that the actions of the deceased "did not in any way contribute to the accident". There is no issue on appeal with this finding.

Objective seriousness

1. As to the objective seriousness of the offending, his Honour made the following findings (addressing various of the factors identified in Whyte): that the applicant was not young; that the applicant was genuinely remorseful; that the applicant was entitled to a discount of 25% for his plea of guilty; and that the s 52A(2) (aggravated dangerous driving) offence involved loss of life rather than injury, which was an element of the offence.
2. Under the heading "Aggravating Features", his Honour found that: the offending occurred at 8pm on a major highway with low to moderate lighting; there were multiple people placed at risk by the applicant's driving, "not simply himself or Mr Davies [the passenger] or Ms Osman [the deceased]" but also the deceased's baby and "potentially other road users"; the applicant was very familiar with the roadway, including the possibility that there might be other traffic wishing to cross over and off the Pacific Highway to residential areas; the applicant was travelling at a high speed, in excess of 45km/hr over the speed limit (138 km/hr in an 80 km/hr zone); and the applicant was showing off the capabilities of the vehicle, engaging in aggressive driving and had "abandoned responsibility to a gross degree". This latter finding (as to his abandonment of responsibility) is the subject of challenge in relation to the proposed ground 1. The applicant also cavils with the description of his driving as "aggressive".
3. The sentencing judge noted that, while the road was not busy, the applicant was aware that the particular road he was driving on "generally would be relatively busy" at that time of night, and that the applicant was aware that he was placing many people at risk, including the deceased and her baby, and his passenger.
4. Taking those matters into account, his Honour said (at [17]): It is for those reasons that I have concluded that the offender had abandoned his responsibility in a gross fashion and his moral culpability in the circumstances must be found to be high and, in those circumstances, this is a serious case of such offending. Although it is not necessary to assess it in relation to any midrange of objective seriousness as there is no standard non parole period provided, I would assess it as being above the midrange.
5. Thus, his Honour concluded that the applicant's moral culpability for the offences was high and that this was "a serious case of such offending". His Honour determined that the objective seriousness of the dangerous driving offence was above the midrange. (This finding is the subject of proposed ground 1.)

Subjective matters

1. Turning to subjective matters, his Honour said (at [18]): As to subjective matters, before the Court is the offender's criminal history, which I note indicates that he has never been convicted of a criminal offence. In addition, before the Court is his traffic record. He was first issued a provisional licence in February of 2004 and has been convicted of a number of offences up to October 2020. Of relevance is that there are seven offences of speeding; three of those are for speeding at more than 15 kilometres but not more than 30 kilometres, two of those in 2005 and one in 2006. The further four speeding offences are all by exceeding the speed limit by not more than ten in 2011, 2012, 2014 and 2018. He has at least on those occasions according to his traffic record, demonstrated a degree of contempt for the speed limit. Although I would not regard his criminal history as a particularly aggravating feature, it nonetheless is relevant that almost all his offences as a driver are in relation to speeding over the period of time I have referred to.
2. Pausing here, it is apparent that the reference in the last sentence extracted above to the applicant's criminal history (as not being a particularly aggravating feature) must be a reference to the applicant's traffic history, since his Honour followed this observation with the comment that it remained relevant because "almost all his offences as a driver are in relation to speeding". (This is the subject of proposed ground 2.)
3. Later in the reasons for sentence, his Honour said (and this supports the reading of the previous observation as relating only to his traffic history) that (at [21]): It is also tragic in relation to the offender, as I have said he had no criminal history. He is a married man with two children of his own. He must inevitability receive a sentence of imprisonment…. [my emphasis]
4. His Honour noted the character references that had been tendered, including one that described the applicant as "hardworking, a generous and thoughtful person" (see at [23]) and others that his Honour accepted spoke highly (and well) of the applicant and as to his remorse.
5. His Honour made an express finding that the applicant was remorseful and contrite; and after consideration of the applicant's remorse, his Honour said at [28]: Fortunately, in this matter there were no other aggravating circumstances in the matters I have referred to. The offender was not affected by alcohol or any prohibited drug, although in my view the overtaking of the first vehicle and the speed at which he was doing so can be referred to as aggressive driving, and that he was proceeding at the speed of approximately 138 kilometres in an 80- kilometre zone, in my view, indicates an abandonment of responsibility.
6. His Honour found that the applicant was unlikely to reoffend and had good prospects of rehabilitation (at [30]). However, his Honour said that specific deterrence and particularly general deterrence remained relevant. As adverted to above, his Honour made a finding of special circumstances to assist the applicant in rehabilitation and reintegration into the community (at [32]).
7. Also as noted above, his Honour's sentence for the s 53 wanton driving offence was wholly concurrent with the sentence for the s 52A(2) dangerous driving offence.

Disqualification

1. At the conclusion of his Honour's remarks on sentence, counsel for the applicant raised the question of the appropriate period of disqualification. His Honour indicated that the automatic period of three years would apply; and then stated: I ask Road and Maritime Services to take into account the period of time that the offender was without a licence, being from the date of arrest on 18 October 2020 until [the date of sentence].
2. This is the subject of proposed ground 3 of the appeal.

Grounds of Appeal

1. In his notice of appeal dated 29 September 2023, as amended with leave at the hearing of the appeal, the following proposed grounds on which the applicant seeks leave to appeal against the sentences imposed on him are specified: Ground 1: His Honour erred in assessing the objective seriousness of the aggravated dangerous driving offence as above midrange and/or the moral culpability as abandonment in a "gross fashion". Ground 2: His Honour erred by not taking into account the applicant's good character and absence of previous convictions as mitigating factors. Ground 3: His Honour erred in imposing a period of three years' licence disqualification because he misapprehended the operation of s 206B(2) of the Road Transport Act (NSW).
2. The applicant's notice of intention to appeal was filed on 9 August 2022 and lapsed on 8 August 2023. The applicant thus requires an extension of time for his appeal. In circumstances where (as explained in due course) the Crown correctly concedes that there was error as identified in ground 3, an extension of time for the filing of the notice of appeal should be granted.

Ground 1: His Honour erred in assessing the objective seriousness of the aggravated dangerous driving offence as above midrange and/or the moral culpability as abandonment in a "gross fashion".

Applicant's submissions

1. The applicant accepts that the assessment of the objective seriousness of an offence is part of the role of the sentencing judge; and that it has been recognised that an appellate court will be slow to set aside the judgment made by a first instance judge exercising a broadly based discretion (citing Mulato v R [2006] NSWCCA 282 (Mulato) per Spigelman CJ at [37]). It is noted that the question is whether or not the particular characterisation which the sentencing judge gave to the circumstances of the offence was open to the judge (Mulato at [37] (Spigelman CJ), [46]-[47] (Simpson J, as her Honour then was); Magro v R [2020] NSWCCA 25 (Magro) at [31] (Gleeson JA)); and that error must be demonstrated in accordance with the principles in House v The King (1936) 55 CLR 499; [1936] HCA 40 (House v The King) (see Magro at [31]).
2. The applicant notes that his Honour's finding that the objective seriousness of the offence was above the midrange was reflected in an undiscounted sentence of seven years and four months, just over half the maximum penalty; and says that the finding as to his moral culpability was critical to that assessment as to the objective seriousness of the offence (noting that it was unnecessary for his Honour to characterise the seriousness of the offence by use of a putative scale of objective seriousness (see R v Eaton [2023] NSWCCA 125 (Eaton) at [57]-[59] per Hamill J, with whom Lonergan and Ierace JJ agreed)).
3. In this regard, the applicant says that what influenced his Honour's characterisation of the aggravated dangerous driving offence as "above the midrange" was the finding that he had abandoned his responsibility in a gross fashion, his Honour following that finding by concluding that "his moral culpability in the circumstances must be found to be high".
4. The applicant submits that whether his Honour's reference to moral culpability was within the context of the aggravating factors referred to in Whyte (at [216]-[217] per Spigelman CJ, with whom Mason P, Barr, Bell and McClellan J agreed), which are essentially matters that may bear on the objective gravity of the offending (see Eaton at [56]), or was in the way that term is understood in DS v R; DM v R (2022) 109 NSWLR 82; [2022] NSWCCA 156 (DS; DM) at [63]-[96] (see as discussed in due course), it was an error for his Honour to describe the applicant's moral culpability as high or as involving an abandonment of responsibility "in a gross fashion". The applicant maintains that such a finding was not open to his Honour; and that it was also an error to hold that the objective seriousness of this offence of aggravated dangerous driving was above the midrange of seriousness.
5. The applicant's complaint under ground 1 in respect of the impugned finding thus raises two issues. First, the applicant says that the factors referred to by his Honour under the heading "Aggravating Features" were not aggravating to a material degree so as to justify a finding that the applicant "had abandoned his responsibility in a gross fashion"; and, second, the applicant says that, in determining that the offence of aggravated dangerous driving was "above midrange", the sentencing judge did not take into account the absence of a number of the factors identified in Whyte at [216]-[217].
6. As to the first, the applicant says that the mere presence of one or more of the aggravating factors listed in Whyte (at [216]-[217]) does not, without more, give rise to a finding of gross abandonment of responsibility and high moral culpability; rather, it is the presence of aggravating factors "to a material degree" that is relevant (citing Whyte at [215]; R v Tadman [2001] NSWCCA 225 at [14] per Spigelman CJ, with whom Howie J agreed). In that regard, the applicant maintains that a finding that an offender has abandoned moral responsibility in his or her mode of driving is reserved for only "very serious" cases (citing R v Bortic [2021] NSWCCA 138 (Bortic) at [97] per Hoeben CJ at CL).
7. The applicant accepts that he was speeding at 13 km/hr over the limit set by the aggravating factor (of 45 km/hr in excess of the speed limit), and that he was showing off to his passenger, but the applicant says that this was in an unplanned manner that arose after he ran into his friend at the shopping centre (contrasting this, by way of example, with an offence following a meeting at licensed premises after they had been drinking) and that his friend expressed an interest in the applicant's vehicle (cf R v Elkassir [2013] NSWCCA 181 (Elkassir), where the offender there was trying to incite the driver of another vehicle to a race). It is also accepted that others were put at risk by the applicant's driving but the applicant points out that there was only a single passenger in his vehicle and that the road was otherwise not busy.
8. The applicant says that there is no issue that these matters increased the applicant's moral culpability and the gravity of the offence; and does not suggest that his moral culpability was low. However, the applicant submits that some moderation in his Honour's approach to those matters was warranted; and that those matters did not support a finding that the applicant had abandoned responsibility to a gross degree.
9. As to the second, the applicant notes that, in Whyte, Spigelman CJ observed that a finding of high moral culpability might arise where "[i]ndividually, but more often in some combination" the aggravating factors listed in the guideline judgment are present (at [228]). The applicant says that, of the factors considered in Whyte, in the present case: there was no aggressive or erratic driving (except to the extent that there was "showing off" which included overtaking one vehicle) (a submission with which the Crown cavils, see AT 5.35-40; 12.14-15); he was not intoxicated and had not used illicit drugs; the length of the journey during which others were exposed to risk was intended to be one kilometre, and was in fact about three hundred metres; he did not ignore warnings, for example from his passenger; he was not escaping a police pursuit; there was no sleep deprivation; and he did not try to leave the scene or fail to stop.
10. The applicant does not suggest that the absence of those factors mitigates the offending (cf TM v R [2018] NSWCCA 88 at [65] per Hoeben CJ at CL, with whom Walton and R A Hulme JJ agreed); rather, the applicant invokes the observation in Simpson v R [2019] NSWCCA 137 at [27] by Davies J, with whom Leeming JA and Button J agreed, that: In some cases, the only way an adequate explanation can be provided for where an offence lies in the range of objective criminality, is to note not only what factors are present but also what factors are absent. That is not to conclude that the absence of some factors will mitigate the offending, but only to help to place the offending correctly on the spectrum. The need to do this may be highlighted in cases where guideline judgments list factors which should be taken to aggravate an offence.
11. The applicant notes that the sentencing judge was required to determine an appropriate term of imprisonment having regard to the prescribed maximum of fourteen years for the aggravated offence and to the possible range of offences to which it applied (Baumer v The Queen (1988) 166 CLR 51 at 57; [1988] HCA 67 per Mason CJ, Wilson, Deane, Dawson and Gaudron JJ). The applicant submits that his Honour's finding about his (the applicant's) moral culpability (and, consequently, where the offence fell in the range) failed properly to reflect a scale of objective seriousness for aggravated dangerous driving occasioning death that would include driving where (unlike the present case) the factors listed at [55] above were present.
12. The applicant argues that the absence of most of the aggravating factors listed in Whyte on the facts of this case means it did not fall into the category of above the midrange, contrasting the present case with examples of what the applicant says may properly be described as "above the midrange" (vis a vis offences of aggravated dangerous driving), namely: Nealon v R [2021] NSWCCA 286 (Nealon); Bortic; Norouzi v R [2020] NSWCCA 237 (Norouzi); and R v Shashati [2018] NSWCCA 167 (Shashati). Reference is also made by the applicant to the cases referred to in Conte v R [2018] NSWCCA 209 at [12], being Bombardieri v R [2010] NSWCCA 161; Smith v R [2011] NSWCCA 290; R v Wright [2013] NSWCCA 82; Lehn v R (2016) 98 NSWLR 205; [2016] NSWCCA 255 (Lehn); and Shashati.
13. The applicant says that it is no answer (to his complaint under this ground 1) that his Honour later (under the heading "Subjective Matters"), after consideration of the applicant's remorse, noted that there were no other aggravating circumstances (and referred to the fact that he was not affected by alcohol or any prohibited drug) (see as extracted above); the applicant pointing out that the sentencing decision was not given ex tempore and has since been published. (As I understand it, this appears to be a submission to the effect that because these comments were made under the heading "Subjective Matters", not the heading "Objective Seriousness", and the reasons were considered and not delivered ex tempore, it must be concluded that his Honour was only addressing this comment as to the absence of aggravating factors to the applicant's subjective position, not the objective seriousness of the offence.)
14. The applicant contends that, reading the remarks on sentence as a whole, his Honour erred in his assessment both of the objective seriousness of the offence (as being "above the mid-range") and of his moral culpability (as high).

Crown submissions

1. The Crown submits that the objective seriousness of an offence and an offender's moral culpability are separate but related concepts (citing DS; DM at [63]-[96]), noting that the assessment of moral culpability is concerned with moral blameworthiness and that this can involve considering a wider set of subjective factors affecting an offender than an assessment of objective seriousness.
2. The Crown notes that, in relation to the aggravated dangerous driving offence, it was submitted for the applicant in both written and oral submissions at the sentencing hearing that his culpability was "somewhat above that present in the typical case referred to in Whyte, but not sufficiently elevated to be described as high"; and emphasises that in those submissions (extracted above) it was conceded that the applicant was speeding in a "gross manner" and was "grossly disregarding" the road rules as to speed. The Crown argues that the sentencing judge's finding that the applicant had abandoned his responsibility in a "gross fashion" adopted the language of those concessions; and submits that the finding was well open to his Honour in the circumstances of the case. (As noted above, the applicant submits that this in effect misstates the submission made by his solicitor at the sentencing hearing; and that what was conceded was in relation to speed; not a concession as to the abandonment of responsibility in a gross fashion.)
3. The Crown also refers to the applicant's solicitor's submission (see as extracted above) as to a reduction of moral culpability on account of the asserted failure of the deceased to give way to the applicant's vehicle and, as such, the assertion that she was partially responsible for the collision (which was disputed by the Crown). The Crown submits that, his Honour having dismissed the factual contention underlying the applicant's submission as to his moral culpability not being high, it was well open to the sentencing judge to conclude that his moral culpability was in fact high and that the offending was serious. (The applicant here submits that the rejection of the submission made at the sentencing hearing as to a reduction in moral culpability does not mean that his moral culpability was high.)
4. As to the applicant's two main complaints about the sentencing judge's approach, the Crown's response is as follows.
5. First, as to the assertion that the aggravating matters identified by the sentencing judge were not aggravating to a material degree so as to support a finding that the applicant had "abandoned responsibility to a gross degree", the Crown refers to the agreed facts as to the circumstances of the offending and the finding (at [28]) that the applicant had engaged in what could be referred to as "aggressive driving". The Crown points out that the immense speed at which the applicant was travelling is evident from the photographs in the agreed facts and the engineering report of Grant Johnston, which show the catastrophic damage to the deceased's Landcruiser (the driver's side essentially being wrapped around the concrete pole in a U-shape).
6. The Crown emphasises that the maximum speed of the applicant's vehicle in the five seconds immediately before the collision was 138 km/hr. In oral submissions, the Crown pointed out (in response to the argument by the applicant as to the short duration of the speeding) that this indicates that there must have been a great degree of acceleration involved. The Crown also emphasises the acknowledgement by the applicant that he made an intentional decision to drive his vehicle as fast as he could to show off to his passenger; and that he did so knowing that he was placing other people at risk. In this regard, the Crown points out that there was no suggestion in this case that the applicant's conduct was attributable to any momentary inattention or misjudgment on his part (noting that this is a factor relevant in assessing the level of moral culpability of an offender, referring to Whyte at [214]).
7. The Crown says that the finding by the sentencing judge that the applicant's traffic record demonstrated a "degree of contempt for the speed limit" was also well open to his Honour; and points out that his Honour found that the applicant was "clearly very familiar with the possibility that as he approached there might be other traffic wishing to cross over and off the Pacific Highway and the residential areas".
8. The Crown submits that, in all the circumstances, the aggravating factors present this case were sufficiently aggravating, and were aggravating to a material degree, such that the finding that the applicant had "abandoned responsibility to a gross degree" was open to the sentencing judge.
9. As to the second complaint (the assertion that the sentencing judge erroneously failed to take into account the absence of a number of factors identified in Whyte in determining that the dangerous driving offence was above midrange), the Crown says that this assertion should be rejected for the following reasons.
10. First, that the absence of certain aggravating factors under the Whyte guideline in this case did not preclude a finding that the offence fell into the category of above the midrange, nor did it necessarily determine the objective seriousness of the offence. The Crown points to the observation in SB v R [2022] NSWCCA 164 at [61]ff (Wilson J, with whom Beech-Jones CJ at CL, as his Honour then was, and Garling J agreed) that it is "unhelpful, as well as contrary to authority, to seek to diminish the gravity of a crime by reference to what it is not". The Crown submits that the present is a case where the aggravating factors that are present are such that a finding of significant objective seriousness is required.
11. The Crown submits that a fair reading of the reasons on sentence as a whole demonstrates that his Honour did have due regard to the aggravating factors that were absent in this case (notwithstanding the context in which his Honour referred to the absence of other aggravating factors), noting that his Honour had earlier explained the common characteristics of a "typical case" as outlined in Whyte; listed the aggravating factors discussed in Whyte; identified which of those aggravating factors were present in this case; considered the extent to which each applied; and then noted the absence of other aggravating circumstances before reaching the conclusion that the applicant was driving aggressively and saying that this and the speed at which he was proceeding indicated "an abandonment of responsibility". The Crown argues that the sentencing judge was not required explicitly and individually to address and consider each aggravating factor noted in Whyte that was absent here; and submits that no error is disclosed in his Honour's approach in this regard.
12. Second, insofar as the applicant asserts that this case can be contrasted with other "above mid-range" cases to demonstrate that it does not fall into the category of above midrange, the Crown says that the decisions on which the applicant relies do not establish, individually or in combination, that the sentencing judge's assessment of objective seriousness and of the applicant's moral culpability was not open to him.
13. In particular, while the Crown accepts that some of those cases have significant aggravating factors that were either absent or only present to a marginal extent in the present case, the Crown notes that the converse is also true. By way of example, the Crown notes that in Nealon both the length of the journey (800 metres) and the intended journey were (as here) short but that, while there was a degree of alcohol intoxication that was significant in Nealon (a factor not here present), the degree of speed was much less (80 km/hr in a 60 km/hr zone compared to 138 km/hr in an 80 km/hr residential area) and there was no element of "showing off" in Nealon, though there was "erratic driving" (for at least 15 minutes before the offender mounted the kerb).
14. The Crown points to the higher starting points for the respective s 52A(2) charges in three of the cases relied on by the applicant (in Nealon, 8 years and 6 months, in Bortic, 8 years, and in Norouzi, 7 years and 11 months; cf 7 years and 4 months in the present case); and to the fact that Bortic was a sentence imposed following a successful Crown appeal. The Crown argues that authorities with similar findings of objective seriousness but markedly higher starting points (which it submits are therefore necessarily more objectively serious cases) do not support the contention that here the sentencing judge's finding of objective seriousness was not open. (I note that the applicant cavils with the proposition that markedly higher starting points indicate more objectively serious cases.) The Crown points out that, while the starting point in Shashati was lower than in the present case, that was also a sentence imposed following a successful Crown appeal and the degree of speed involved in that case was considerably less than in the present case.
15. The Crown also notes that three of the cases relied on by the applicant (Nealon, Norouzi and Shashati) involved only a single s 52A(2) charge and a single victim, whereas in the applicant's case there was also a separate wanton driving offence relating to a second victim (Mr Davies) for which the applicant received a wholly concurrent sentence.
16. The Crown thus submits that, when the facts of this case are considered closely, in combination with the concessions that were made on the applicant's behalf on sentence and the lack of any challenge on appeal to the sentencing judge's finding that the deceased was not in any way responsible for the collision, this ground of appeal should be dismissed.

Determination

1. It is not necessary in the present case to enter into the debate between the parties as to the role that moral culpability plays in the assessment of the objective seriousness of the offending conduct given that the applicant's position is that, whatever the context in which his Honour's reference to moral culpability is to be understood, the impugned findings (that objective seriousness was above the midrange and that there was a high level of moral culpability because there was a gross abandonment of responsibility) were not open to his Honour.
2. Nevertheless, it is relevant here to note that, although in Whyte moral culpability was described as an aspect of objective seriousness, the reference at [205] to close consideration of the aggregating factors appears to have been limited to a series of objective circumstances. More pertinently, in DS; DM, this Court rejected the submission that the trial judge's approach to sentencing in that case was erroneous because the trial judge did not act on the basis that an assessment of each appellant's moral culpability was part of the determination of objective seriousness of the offending.
3. In Paterson v R [2021] NSWCCA 273 (Paterson), Beech-Jones CJ at CL, as his Honour then was, explained (from [29]) the distinction between the two concepts (objective seriousness being an objective assessment of the seriousness of the offence, including the circumstances of the crime and matters causally related to it; and moral culpability being that of the offender, which could involve consideration of an individual set of subjective factors); his Honour noting at [30] Johnson J's observations in Tepania v R [2018] NSWCCA 247 at [112] where it was said that an assessment of the factors which bear on the seriousness of the offence can include regard to matters personal to the offender that are causally connected with or materially contribute to the commission of the offence (unless excluded by statute). Drawing on Beech-Jones CJ at CL's comments in Paterson, the Court (Beech-Jones CJ at CL, N Adams and Cavanagh JJ) in DS; DM, expressly rejected the suggestion that an assessment of moral culpability always forms part of the assessment of objective seriousness (at [85]-[88], see also [66]-[77]).
4. Nor is it necessary to restate the general principles in relation to appellate review of a sentencing judge's characterisation of the objective seriousness of the offence, given that it is accepted here that the question is whether that assessment was not open to the sentencing judge (see Mulato) and it is a broad evaluative decision with which an appellate court will be slow to interfere. As the Crown notes, the assessment of objective seriousness occurs on a spectrum (the Crown referring to the endorsement by Fullerton J in McClelland v R [2019] NSWCCA 59 at [27], of the observation by Walton J in Battersby v R [2018] NSWCCA 141 at [52], his Honour there citing Salafia v R [2015] NSWCCA 141 at [76] to similar effect).
5. In the present case, the finding that the applicant's moral culpability was high on the basis that the applicant had abandoned responsibility in a gross fashion was in my opinion open to his Honour. The nub of the applicant's complaint in this regard, as I understand it, is that, properly analysed, everything "collapsed into speed"; in other words, the excessive speed was an element of the offence (and not an aggravating factor for the aggravated version of the offence as this would be double counting) and the "showing off" over some 200-300 metres did not permit a finding of high moral culpability.
6. As adverted to above, the factors relied upon by the Crown to support the finding of a "gross" abandonment of responsibility and high moral culpability were the degree of speed (including the high degree of acceleration that must have been involved given the short duration between the acceleration and reaching the speed of 138km/hr); the manner of driving (relevantly, the overtaking manoeuvre approaching the crest of the hill and the slight bend in the road); and the fact that there was a deliberate decision to speed (knowing the possibility that there would be other road users in the area - including, I would add, the possibility of which the applicant was aware that other road users might be seeking to enter the road at the intersection where the collision occurred).
7. While the applicant complains that the degree of acceleration was not relied upon or the subject of submission at the sentencing hearing, to my mind it is axiomatic that, in order to reach a speed of 138km/hr in a very short distance, there must be a large degree of acceleration and the agreed facts themselves included that the applicant had "accelerated hard" through the gears. In any event such a conclusion is not necessary to sustain a finding that the applicant's driving could be described as aggressive. Overtaking at very high speed whilst approaching a slight hill with a slight bend in the road (as it is accepted the applicant did), even though the overtaking was in a permitted overtaking lane, would suffice in my view to permit a finding that the applicant was driving in an aggressive manner. When coupled with the fact that the applicant acknowledged that his intention was to show off and that he was aware that the road was through a residential area with an intersection ahead and there was a possibility of other road users in the area, this more than permits a finding of aggressive driving.
8. The applicant's concession that his conduct involved a gross disregard of the speed limit was well made. I accept that the concession did not extend to a gross abandonment of responsibility to other road users. However, I consider that such a finding was well open to the sentencing judge in light of his aggressive driving in the location in which it occurred.
9. As to the complaint that the finding of above midrange objective seriousness was not open to the sentencing judge, again I am not persuaded that this is made good. It was accepted that the fact that this was an aggravated version of the dangerous driving offence meant that there had to be an increment to the starting point for the guideline judgment; and that there might be some increment for the fact that the speed was above the threshold for the aggravated version of the offence. The sentencing judge considered the relevant aggravating factors and turned his mind, albeit under the heading "Subjective matters", to the absence of other aggravating factors that would have been relevant in applying the aggravating factors identified in Whyte.
10. I do not accept that the "showing off" was of the marginal significance that the applicant here suggests, nor do I accept that in the present case everything collapsed into the speed. Here, the combination of the aggressive driving and the deliberate intention to drive at excessive speed knowing that the road ran through a residential area and that there was a possibility of other road users in the area, makes open the finding that the offending was above midrange in terms of objective seriousness.
11. As to the comparable cases to which the applicant refers, ultimately it was an evaluative exercise for the sentencing judge to determine where, on the spectrum of objective seriousness, the present offence fell. True it is, that in each of the four cases to which the applicant has principally referred, the offenders had alcohol or illicit drugs in their system; and, in Shashati the erratic driving involved overtaking traffic on a grass verge. However, as the Crown points out, there are also differences in terms of the speed in both Nealon and Shashati; and both Bortic and Shashati were Crown appeals.
12. In oral submissions, emphasis was placed by the applicant on Shashati. There, the offender was driving under the influence of a potentially fatal level of methylamphetamine (0.32mg/L), passing slow moving traffic at speed on the grass verge, with four child passengers in the vehicle, over a lengthy period (see at [4]-[10] and [28]). The speed at which the offender was travelling was, however, considerably less than that in the present case; the evidence given there gave the most likely speed as being 82km/hr. The offender did not plead guilty (and hence was not entitled to a discount for such a plea, see at [35]). The applicant points to the fact that the offender was resentenced (on a Crown appeal) to imprisonment for six years with a non-parole period of three years and three months, whereas here the applicant's starting sentence (before reduction for the guilty plea) was seven years and four months.
13. On one view the facts in Shashati (particularly, driving with child passengers over a lengthy period while under the effects of illicit drugs) may be said to be a more "gross" abandonment of moral responsibility than in the present case where there was no drug use (or intoxication) and no child passengers in the applicant's vehicle. However, that simply illustrates the evaluative nature of the exercise. What is clear is that the applicant intentionally set out to show off the capabilities of his vehicle, driving at very high speed through a residential area, and overtaking at a very high speed whilst approaching a bend in the road and a slight hill (and an intersection of which he was aware). I am not persuaded that the conclusion that this was aggressive driving was not open to the sentencing judge; and nor am I persuaded that it was not open to the sentencing judge to conclude that in all the circumstances there was a gross abandonment of moral responsibility; and hence to conclude that the objective seriousness of the offence was above midrange.
14. Ground 1 is therefore not made good.

Ground 2: His Honour erred by not taking into account the applicant's good character and absence of previous convictions as mitigating factors.

Applicant's submissions

1. The applicant emphasises that the evidence was that he was a person of prior good character (s 21A(3)(f) of the Crime (Sentencing Procedure) Act 1999 (NSW) (Crime Sentencing Procedure Act)) and that he had no previous convictions (s 21A(3)(e) of the Crime Sentencing Procedure Act).
2. The applicant accepts that his Honour noted that he had no criminal history but the applicant complains that his Honour made no positive finding as to good character, despite having significant relevant material before him. The applicant points out that good character is: a factor listed in the Whyte guideline judgment; a mitigating factor under s 21A(3)(f) of the Crime Sentencing Procedure Act; and a relevant matter in the instinctive sentencing exercise. It is submitted that addressing other aspects of the applicant's positive subjective case was not sufficient.
3. Complaint is made as to his Honour's finding that "[a]lthough he would not regard the applicant's criminal history as a particularly aggravating feature, it is nonetheless relevant that almost all of his offences as a driver are in relation to speeding over the period of time I have referred to", namely that it did not denote a mitigating finding that the applicant did not have any record of previous convictions pursuant to s 21A(3)(e) of the Crime Sentencing Procedure Act. Indeed, the applicant suggests that there is some doubt as to whether it was even rejected as an aggravating factor, given the sentencing judge's immediately earlier finding of a degree of contempt for the speed limit and description of the driving matters as offences in the context of the finding as to no criminal history.
4. The applicant accepts that he had a traffic record since obtaining his licence in February 2004, including speeding infringements. However, the applicant says that it was not open to his Honour to be satisfied beyond reasonable doubt that his traffic record demonstrated "a degree of contempt for the speed limit", nor that it tempered his lack of criminal history as a mitigating factor. In this regard, the applicant says that in the five years before the offence he only had one traffic infringement of speeding not more than 10 km/hr over the speed limit; and that the more serious speeding infringements (speeding at more than 15 km/hr but not more than 30 km/hr) occurred over 15 years previously. The applicant says that this was not a case where the traffic record was a Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14 consideration (see at 476: i.e., protection of society) or might be considered "aggravating" (R v McNaughton (2006) 66 NSWLR 566; [2006] NSWCCA 242 at [20], [26] per Spigelman CJ); and that his case can also be contrasted with cases where an offender was on conditional liberty for traffic or other matters at the time of an offence (such as Kerr v R [2016] NSWCCA 218 at [70]-[71] per Bathurst CJ, his Honour referring also to R v Borkowski [2009] NSWCCA 102; (2009) 195 A Crim R 1 at [16], [34]-[37], Gonzalez v R [2006] NSWCCA 4 at [7] per Howie J).
5. The applicant says that prior good character should have been positively found to be satisfied on the balance of probabilities, and that this and the absence of a criminal history are mitigating factors that must be taken into account (citing Ryan v The Queen (2001) 206 CLR 267; [2001] HCA 21 per McHugh J at [25]) in cases of aggravated dangerous driving; and that his Honour's failure to do so amounted to error.

Crown submissions

1. The Crown submits that it is clear, from a fair reading of sentencing remarks as a whole, that both the applicant's good character and his absence of previous convictions were taken into account by the sentencing judge and given due weight in mitigation in the sentencing exercise.
2. Referring to the comments (extracted at [36] above) by the sentencing judge in relation to the applicant's antecedents, the Crown says (and I agree) that, read in context, the sentencing judge's comment that he did "not regard [the applicant's] criminal history as a particularly aggravating factor" was clearly a reference to the applicant's traffic record. The Crown submits that, in circumstances where his Honour twice referred to the applicant as a person with no prior criminal convictions, and treated the applicant as such, this remark discloses no error. The Crown notes that his Honour later referred (when saying the matter was also tragic in relation to the applicant) to the fact that the applicant had no criminal history.
3. As to the character references, the Crown submits that his Honour carefully considered each of the applicant's character references (quoting portions of them) and notes that his Honour twice stated that, because of the applicant's evidence on sentence and his character references, he accepted that the applicant was genuinely remorseful.
4. Further, the Crown points out that his Honour used qualified language when assessing the applicant's traffic record, stating that the applicant had "at least on those occasions" demonstrated "a degree" of contempt for the speed limit, and that, while he would not regard the applicant's "criminal history" as a "particularly aggravating feature", it was nonetheless relevant that almost all his offences as a driver were in relation to speeding. The Crown says (and I agree) that these findings were well open to the sentencing judge.
5. The Crown argues that the applicant's seven previous speeding offences over a number of years had particular relevance in the present case, where the applicant stood to be sentenced for dangerous driving that had caused the death of a young mother, and also injuring his passenger, as a result of his decision to drive at an extreme speed to show off to his passenger. It is submitted that the sentencing judge's findings were consistent with the submissions of the Crown prosecutor, who had accepted that the applicant was of good character but had nonetheless made the available submission that (at T 23.12-16): [The applicant contended that the sentencing judge] would find that the conduct of the offender here was an aberration and it was out of character. The Crown doesn't assert that it was within his character to speed at this level but one couldn't say that to drive a motor vehicle over the speed limit was out of character to that extent for his [sic] particular offender.
6. The Crown contends that the sentencing judge's effective acceptance of the above submission demonstrates no error.
7. It is noted that his Honour also took into account the applicant's otherwise good character in support of a finding that the applicant had excellent prospects of rehabilitation, as follows: As to the risk of reoffending, considering the offender's past history, the impact on him of this offending and the fact that he will have to serve a prison sentence, in my view indicates that there will be very little risk of the offender reoffending. As to rehabilitation, I also find that there is a high probability that the offender can be rehabilitated. Nonetheless, both specific deterrence and general deterrence remain relevant, and particularly general deterrence, where offending such as this can lead to such serious consequences and so adversely impact other members of the community. (emphasis added)
8. Accordingly, the Crown submits that the applicant's "past history" (of which his otherwise good character and absence of criminal convictions necessarily formed part) was factored favourably into the sentencing judge's mitigatory findings that the applicant was at "very little risk" of reoffending, and that there was a "high probability" of rehabilitation.
9. For these reasons, the Crown says that no error is disclosed in his Honour's treatment of the applicant's subjective case.

Determination

1. I accept the Crown's submission that the sentencing judge took the applicant's lack of criminal history (and good character references) into account and that it was not necessary for there to be a positive finding as to the lack of a previous criminal history in circumstances where it is clear that his Honour accepted that this was a mitigating factor in favour of the applicant (and treated it as such in his assessment of the applicant's subjective circumstances). His Honour's reference to this being a case where "the tragedy falls on both sides" surely reflects his acceptance of the good character of the applicant.
2. In the context in which it was made (see as extracted at [36] above) I do not regard the observation the sentencing judge that his lack of criminal history (by which it is clear that his Honour was referring to the applicant's traffic record) was "not a particularly aggravating factor" as meaning that his Honour did in fact treat it to some extent as an aggravating factor. Rather, this is consistent with his Honour considering that "at least" insofar as the applicant's traffic record was concerned this showed "a degree of contempt" for the speed limit. Such a conclusion was well open to his Honour. The applicant had over a decade of speeding offences, not all limited to when he was on a provisional licence. Moreover, the offence with which he was charged clearly showed contempt for the speed limit - the applicant made no bones about his intention to disobey the speed limit.
3. Read in context, I consider that the sentencing remarks disclose no error in the treatment of the applicant's subjective case.
4. Ground 2 should be dismissed.

Ground 3: His Honour erred in imposing a period of three years' licence disqualification because he misapprehended the operation of s 206B(2) of the Road Transport Act 2013 (NSW).

1. As noted above, the parties are agreed that his Honour erred as contended for by the applicant in ground 3.
2. An automatic period of three years disqualification applied under s 205(2)(c)(i) of the RTA because dangerous driving occasioning death is a "major offence" under s 4 of the RTA. Section 206B of the RTA deals with how the court should take into account periods of suspension when approaching disqualification periods and provides: 1. This section applies where a driver licence or other authority to drive in this jurisdiction has been suspended under this Act or the statutory rules for an alleged offence. 2. A court that determines a charge for the offence (or for a related offence) is required to take into account the period of suspension when deciding on any period of disqualification from holding or obtaining a driver licence on conviction for the offence (or for the related offence). 3. An offence is related to another offence if it relates to the same act or omission that gave rise to the other offence. 4. The period of suspension satisfies all or the relevant part of any minimum period of disqualification that is or is required to be imposed under this Act on conviction for the offence (or for the related offence). Accordingly, the total of the period of suspension and of the period of disqualification is not to be less than that minimum period of disqualification. 5. The court may order that the period of disqualification ends on a day specified by the court.
3. A disqualification order takes effect when a person is released to parole, pursuant to ss 206A(3) and (4) of the RTA.

Applicant's submissions

1. The applicant takes no issue with what his Honour intended: namely, that there should be a period of three years disqualification reduced by the period of suspension. However, the applicant says that s 206B does not give a sentencing court the power to order the Road and Maritime Services to take into account any period of suspension after a disqualification period has been ordered. The applicant says that, pursuant to s 206B(2), his Honour was required to take that period into account and to set the disqualification period accordingly (citing Moodie v R [2020] NSWCCA 160 at [100]; (2020) 284 A Crim R 87 (Moodie)).

Crown submissions

1. Similarly, the Crown submits that the sentencing judge clearly intended: in relation to the s 52A(2) offence, that the applicant be disqualified from holding a driver's licence for a period of 3 years, less the period of time that "the offender was without a licence, being from the date of arrest on 18 October 2020…"; and, in relation to the s 53 offence, that the applicant be disqualified from holding a driver's licence for a concurrent term of one year.
2. The Crown says that the sentencing judge mistakenly assumed that the applicant's licence was suspended from the date of his arrest on 18 October 2020, rather than from the actual date of suspension on 16 October 2020 (which is evidenced by the applicant's traffic record). The Crown accepts that his Honour was required to take into account the (correct) period of suspension when deciding on any period of disqualification (s 206B(2) of the RTA).
3. In addition to this factual error, the Crown accepts that the sentencing judge also erred by failing himself to take into account the period of time during which the applicant was without a licence and instead asking Roads and Maritime Services to take that period of time into account (that being a similar error to the error that arose in Moodie).
4. The Crown submits that these are confined arithmetical errors, the extent of which can be properly determined; and it is noted that there is no challenge to the period of time for which the sentencing judge intended to disqualify the applicant from holding a driver's licence. Accordingly, the Crown submits (and the applicant does not demur from this) that if this ground alone is upheld then it would not be necessary to re-exercise the sentencing discretion; rather, it would be open simply to make a discrete adjustment to the period of disqualification for the s 52A(2) offence (see Lehn).

Determination

1. For the reasons submitted by both parties, his Honour erred as contended for in ground 3 of the grounds of appeal (not having been sufficiently assisted by the parties at first instance). The parties ultimately agreed as to the appropriate orders to be made in order to rectify the position in relation to the period of the applicant's disqualification from driving. Those orders should be made.

Conclusion

1. For the above reasons, an extension of time to appeal and leave to appeal should be granted but, other than in respect of ground 3, the appeal should be dismissed.

Orders

1. The orders I propose are as follows: 1. Extend time for the filing of the notice of appeal to 29 September 2023 and give leave for the appeal against sentence. 2. Uphold ground 3 of the appeal. 3. Quash the order of the sentencing judge in relation to the period of disqualification for sequence 4. 4. Disqualify the applicant for 1 year and 92 days. 5. Confirm the disqualification period for sequence 3 (s 166 matter), to be served concurrently with the disqualification period the subject of order 4 above. 6. Otherwise dismiss the appeal against sentence.
2. BUTTON J: I agree with Ward P.
3. IERACE J: I also agree with Ward P.

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