2.Her Honour erred in determining the degree of moral culpability for this offence as being at a low level."
93Again, both grounds of appeal may conveniently be dealt with together.
94The Crown accepted that this was a difficult sentencing task. It was not disputed that the appellant had not only expressed, but had shown genuine remorse by his actions and that he had a strong subjective case, even though his driving record was not good. The Crown's case was however, that a lenient sentence was not available, merely because of the presence of strong subjective factors and that on the objective facts, there was a need for general deterrence, given her Honour's error as to the appellant's moral culpability. Nevertheless, the Court's residual discretion to decline to interfere with the sentence, even if it was erroneously lenient, was acknowledged.
95It was also accepted that to establish either ground, the Crown had to show that her Honour's findings were not open, or that error in the sense referred to in House v R was established (see Dinsdale v R [2000] HCA 54; (2000) 202 CLR 321). This required the Crown to establish that there had been some misapplication of principle (see Hili v R [2010] HCA 45). In particular, it was submitted that her Honour had erred in imposing an intensive correction order, inconsistently with the approach to such orders discussed by Simpson J in R v Boughen; R v Cameron [2012] NSWCCA 17.
96In my view, neither ground of this appeal was made out.
97Her Honour was obliged to come to a view as to the appellant's moral culpability. There was an issue between the parties as to that characterisation, which rested in part on a conflict in the evidence. That conflict was resolved by her Honour, who accepted the appellant's evidence as to how the accident had come to occur, namely that he had lawfully overtaken the first of the vehicles towing a boat that he encountered; that when he then attempted to return to his side of the road, he found that the gap between that vehicle and the one in front of it had closed; he then decided to overtake the second vehicle; that when he first noticed the oncoming vehicle, he did not have time to brake and fall behind the first vehicle; and that he then decided to steer onto the shoulder, on the right side of the road where the collision occurred.
98The appellant's evidence as to his unsuccessful attempt to regain his side of the road was supported in various respects by evidence given by Mr Kumar, Ms Kapur and Mr Piirlaid. His evidence as to the speed that the vehicle he was overtaking had been travelling, was supported by that given Mr Lucas Rosman. His evidence conflicted with that of Mr Piirlaid and Mr Lucas Rosman in other respects.
99Her Honour was in the best position to come to a conclusion as to what findings should be reached on the conflicting evidence. She was clearly impressed by the evidence given by the appellant. He had not only made admissions in relation to dangerous driving, he had accepted that he had made a serious error of judgment in deciding to overtake as he did, and in cross examination, he also made various other concessions, although disagreeing with certain matters put to him, including in relation to the speed of the vehicles, the place of the collision, and the time and distance over which he was on the incorrect side of the road before the impact occurred. By way of contrast, her Honour was not at all satisfied with the evidence given by Mr Piirlaid. His evidence was inconsistent in certain relevant respects with the evidence of the appellant, Mr Kumar and Mr Lucas Rosman. Her Honour resolved the conflicts in evidence, as to how the collision occurred, in favour of the appellant, as she was entitled to do, in the circumstances.
100No error has been shown in the factual findings which her Honour made. The submission that her Honour ought to have accepted the Crown case as to the speed at which the appellant must have been driving, rested on certain mathematical calculations which had regard to measurements made by Senior Constable Jenkins. In my view that submission should not be accepted. The calculations rested not only on measurements which she had made and which the appellant accepted, but also on certain assumptions, including as to the place of the collision and the speed at which the vehicles were travelling, which he disputed and which her Honour concluded had not been established. The appellant's evidence was in part supported by other evidence. On that evidence her Honour was clearly entitled to come to the view which she reached, as to the case which the Crown had advanced.
101Nor does the evidence leave open the conclusion that her Honour's view, that the level of the appellant's moral culpability was low, was not one reasonably open. As the Crown accepted, this was a discretionary conclusion which her Honour reached, having in mind the factors discussed in the authorities which bound her.
102The conclusion that the accident was the result of an error of judgment, in the course of a lawful attempt to overtake one vehicle towing a boat was clearly open. No error was shown in that regard. In reaching a conclusion as to the appellant's moral culpability, as the Crown submitted, her Honour also had to consider that this collision occurred early in the morning, in the dark, before a curve in the road. The appellant accepted that his decision to overtake the second vehicle, when he could not move back onto his side of the road, because the gap between the vehicles had closed, involved a serious error of judgment.
103It must be accepted on the evidence that it was a decision made quickly. Also to be considered was that it had very serious consequences, namely a head-on collision, which the appellant and Mr Kumar both unsuccessfully sought to avoid, with the result not only serious injuries for the appellant and Ms Kapur, but the eventual premature birth and death of a baby, who otherwise would have lived to full term.
104Her Honour did not overlook any of the relevant considerations. Her conclusion as to the appellant's moral culpability rested on the view to which she came as to what had contributed to the collision, as well as her consideration of the matters discussed in Jurisic and R v Whyte. No error was shown in her Honour's approach. It must be considered that in Whyte Spigelman CJ said at [228] - [230] that:
"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 s52A(1) and (3) for the typical case identified above should be:
Where the offender's moral culpability is high, a full time custodial head sentence of less than three years (in the case of death) and two years (in the case of grievous bodily harm) would not generally be appropriate.
230 In the case of a low level of moral culpability, a lower sentence will, of course, be appropriate."
105The aggravating factors to which the Chief Justice referred, were factors directed to the two limbs identified in Jurisic. As to this the Chief Justice said:
"213 Since the decision of this Court in Jurisic the Parliament has enacted s5 of the Crimes (Sentencing Procedure) Act 1999 which provides:
"5(1) A court must not sentence an offender to imprisonment unless it is satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate.
(2) A court that sentences an offender to imprisonment for 6 months or less must indicate to the offender, and make a record of, its reasons for doing so, including its reasons for deciding that no penalty other than imprisonment is appropriate."
This statutory directive requires an amendment to the first limb of the Jurisic guideline.
214 The guideline this Court should give pursuant to s37A of the Crimes (Sentencing Procedure) Act 1999 with respect to the typical case identified above is:
A custodial sentence will usually be appropriate unless the offender has a low level of moral culpability, as in the case of momentary inattention or misjudgment.
The Numerical Guideline
215 The second limb of the guideline in Jurisic at 231 was as follows:
"With a plea of guilty, wherever there is present to a material degree any aggravating factor involving the conduct of the offender, a custodial sentence (minimum plus additional or fixed term) of less than three years (in the case of dangerous driving causing death) and less than two years (in the case of dangerous driving causing grievous bodily harm) should be exceptional."
216 I had earlier set out a list of aggravating factors which had been established in the authorities as follows:
"(i) Extent and nature of the injuries inflicted.
(ii) Number of people put at risk.
(iii) Degree of speed.
(iv) Degree of intoxication or of substance abuse.
(v) Erratic driving.
(vi) Competitive driving or showing off.
(vii) Length of the journey during which others were exposed to risk.
(viii) Ignoring of warnings.
(ix) Escaping police pursuit."
217 Further consideration of the authorities would cause me to amend this list by changing (v) to read "erratic or aggressive driving" and adding:
(x) Degree of sleep deprivation.
(xi) Failing to stop.
218 I went on to say at 231:
"Paragraph (i) and par (ii) focus on the occurrence, whereas pars (iii)-(ix) refer to the conduct of the offender. The presence of these latter factors may indicate that the offender has 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."
219 It was after this passage that the two limbs of the guideline in Jurisic were set out.
220 I said at 231 that the formulation of whether "the relevant aggravating factor manifest[s] in the circumstances of the case, that the offender has abandoned responsibility for his or her own conduct" involves an element of judgment on which sentencing judges could reasonably differ."
106On appeal the Crown relied on Latham J's discussion in Mitreski v R; R v Mitreski [2008] NSWCCA 301 at [53] - [54]:
"53 It is important to return to what was said by the Chief Justice in Jurisic in order to understand the ambit of "momentary inattention". The first reference to "momentary inattention or misjudgement" in Jurisic at 223 derives from R v Guilfoyle (1973) 57 Cr App R 549 at 552. There, the distinction was drawn between cases falling into two broad categories, namely, momentary inattention and "those in which the accused has driven in a manner which has shown a selfish disregard for the safety of other road users."
54 The Chief Justice in Jurisic also referred to R v Musumeci (unreported) NSWCCA 30 October 1997, which was "in many respects .. a guideline judgment". Following the introduction of s 52A, which almost tripled the maximum penalty formerly applying to this offence, Hunt CJ at CL in Musumeci summarised the considerations to be taken into account on sentence. In the course of that summary, his Honour said that where "the offence is committed even though the offender has had no more than a momentary or casual lapse of attention, there must always be room for a non-custodial sentence,..... but the case in which a sentence other than one involving full-time custody is appropriate must be rarer for this new offence." (bold not in original)
55 Consistent with this formulation, the guideline promulgated by Jurisic characterised non-custodial sentences for an offence against s 52A as "exceptional and almost invariably confined to cases involving momentary inattention or misjudgement". Whilst the Chief Justice did not say "no more than momentary inattention", it is implicit, in my opinion, from the references to Guilfoyle and Musumeci. (See also R v Howland [1999] NSWCCA 10 at [39] "mere momentary inattention" ; R v Dunlop [2001] NSWCCA 435 at [42] "more than momentary inattention") Next, and most importantly, the guideline went on to state that "with a plea of guilty, wherever there is present to a material degree any aggravating factor involving the conduct of the offender, a custodial sentence of less than three years [in cases of death] ... should be exceptional."
107In my view no error was shown in her Honour's conclusions about these matters. The evidence established that this was a serious misjudgement, putting a number of people at risk and resulting in a death. She also concluded that this had occurred in circumstances where it was not only the appellant who had contributed to what had occurred and that the circumstances were not such that the view could properly be taken that the appellant had abandoned responsibility for his conduct. Her Honour's view as to the absence of other aggravating fact was, in my view, also open.
108I am not persuaded that her Honour erred in the conclusions which she reached, having in mind what was discussed in DPP v Samadi [2006] NSWCCA 308 at [16] - [19]:
"16 The promulgation of the guideline was in the following terms, namely that where the offender's moral culpability is high, a full-time custodial head sentence of less than three years in the case of death would not generally be appropriate. However, in the case of a low level of moral culpability, a lower sentence will be appropriate. It should also be noted that the guideline was predicated on a plea of guilty, so that the proposed sentencing range assumes a 10% discount of the sentences that might otherwise apply.
17 Since Whyte, a number of decisions of this Court have explored the above formulation. In R v Errington [2005] NSWCCA 348, Mason P commented that :-
There is a wide spectrum of behaviour indicative of differing levels of moral culpability, indeed differing degrees of abandonment [of responsibility]. It is not required that cases be assigned to one or other of two pigeon holes marked respectively "momentary inattention or misjudgment" and "abandoned responsibility". In R v Khatter [2000] NSWCCA 32, Simpson J (dissenting) held (at [31]:
Offences under s52A are not divided into those of momentary inattention and those of abandonment of responsibility. Those are the two extremes. There are shades and gradations of moral culpability in different instances of the offence and it is proper for the courts to recognise a continuum, rather than a dichotomy, when assessing moral culpability.
Sully J (Carruthers AJ concurring) agreed with these remarks, while differing from her Honour in the disposition of the appeal.
18 In R v Price [2004] NSWCCA 186, Simpson and Howie JJ (at par 37) said:-
It is clear that the Chief Justice in both Jurisic (1998) 45 NSWLR 209 and Whyte was not attempting to identify all the matters that might impact upon the assessment of the moral culpability of an offender in any particular case. For example, the type of vehicle being driven might be an aggravating factor that goes to the moral culpability or the abandonment of responsibility of the driver in a particular case.
19 To similar effect is the following passage from the judgment of Howie J in Gonzalez v R [2006] NSWCCA 4 (at par 13) :-
There is a high degree of moral culpability displayed where there is present to a material degree one or more of the aggravating factors numbered (iii) to (ix) set out in Whyte. However, there may be other factors that reflect on the degree of moral culpability involved in a particular case and the factors identified in Whyte can vary in intensity: R v Tzanis [2005] NSWCCA 274 at [25]. The list of factors is illustrative only and not definitive: Errington at [36]."
109 It was also submitted for the Crown that there were marked disparities with the sentences imposed in other cases, where similar offences arose for consideration, such as Hedges v Regina [2011] NSWCCA 263, although it was acknowledged that there had been unsuccessful crown Appeals in R v Radley [2010] NSWCCA 64, where a periodic detention sentence had been imposed and R v Townsend [2010] NSWCCA 336, where a community service order had been imposed.
110As to the imposition of an intensive correctional order, the Crown relied on the observations of Simpson J in R v Boughen; R v Cameron [2012] NSWCCA 17 at [110] - [111], a case concerning Commonwealth tax offences. Simpson J, with whom Hislop and Latham JJ agreed, discussed the purpose of intensive correction orders at [109]:
"109First, the use of Intensive Correction orders in these circumstances demonstrates a misconception of the nature of this, relatively new, form of punishment. Section 7 of the Sentencing Procedure Act was inserted by the Crimes (Sentencing Legislation) Amendment (Intensive Correction Orders) Act 2010, with effect from 1 October 2010. It is apparent that there has not been time for any significant judicial consideration of the circumstances in which its application is appropriate, certainly not at appellate level. However, it is clear that the principal focus of this sentencing option is rehabilitation. In the second reading speech the Attorney-General said:
"The Bill introduces a new sentencing option - the intensive correction order - designed to reduce the offender's risk of re-offending through the provision of intensive rehabilitation and supervision in the community.
It also abolishes the sentence of periodic detention, giving effect to recommendations from the NSW Sentencing Council and calls from the victims of crime representatives.
Essentially, an intensive correction order is a sentence of imprisonment for up to 2 years which is ordered to be served in the community, where offenders can be subject to a range of stringent conditions including 24 hour monitoring, regular community work and a combination of tailored educational, rehabilitative and other related activities.
...
While it is not intended to be a direct replacement of periodic detention, the power of the courts to make a periodic detention order will cease upon the commencement of the new intensive correction order.
...
The restriction of the court setting a non-parole period for an ICO was an essential feature of the model recommended by the Sentencing Council, on the basis that the offender should be subject to supervision and conditions of the order for its full term. This would ensure that the rehabilitative focus of the order is maintained from beginning to end." (Parliamentary Debates (Hansard), Legislative Council, 22 June 2010, P 24426 and following.)"
111In that case Simpson J was of the view that rehabilitation was an irrelevant consideration, there being no, or minimal, prospect of either of the respondents re-offending. In her Honour's view that rendered the use of the intensive correction order inappropriate, it being an order which should not be used as a substitute for the now unavailable option of periodic detention. In the circumstances, which concerned tax evasion, her Honour also took the view that such an order, which has inherent in it a high degree of leniency, was unwarranted. On the evidence and her Honour's findings, it is apparent that this was a different case.
112In this case her Honour was bound by s 5 of the Crimes (Sentencing Procedure) Act 1999 which provides:
"5 Penalties of imprisonment
(1) A court must not sentence an offender to imprisonment unless it is satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate."
113The possible alternatives available on sentencing, included that provided by s 7, which provides:
"7 Intensive correction orders
(1) A court that has sentenced an offender to imprisonment for not more than 2 years may make an intensive correction order directing that the sentence be served by way of intensive correction in the community.
(2) If a court makes an intensive correction order directing that a sentence be served by way of intensive correction in the community, the court is not to set a non-parole period for the sentence.
(3) This section is subject to the provisions of Part 5."
114An order under s 7 is not restricted to any particular class of offending. Her Honour was also obliged to observe the provisions of s 69 in Part 5 of he Act, which provides:
"69 Referral of offender for assessment
(1) Before imposing a sentence of imprisonment on an offender, the court may refer the offender for assessment as to the suitability of the offender for intensive correction in the community.
(2) A court is not to refer an offender for such an assessment unless satisfied, having considered all the alternatives, that no sentence other than imprisonment is appropriate and that the sentence is likely to be for a period of no more than 2 years."
115Her Honour made such a reference, having been addressed by the parties on the nature of the appellant's moral culpability and whether a sentence of imprisonment was appropriate. In that respect s 67 provides:
"67 Suitability of offender for intensive correction order
(1) An intensive correction order may not be made with respect to an offender's sentence of imprisonment unless the court is satisfied:
(a) that the offender is of or above the age of 18 years, and
(b) that the offender is a suitable person to serve the sentence by way of intensive correction in the community, and
(c) that it is appropriate in all of the circumstances that the sentence be served by way of intensive correction in the community, and
(d) that the offender has signed an undertaking to comply with the offender's obligations under the intensive correction order.
(2) In deciding whether or not to make an intensive correction order, the court is to have regard to:
(a) the contents of the assessment report on the offender (prepared under section 70), and
(b) such evidence from the Commissioner of Corrective Services as the court considers necessary for the purpose of deciding whether to make such an order.
(3) A court may, for any reason it considers sufficient, decline to make an intensive correction order despite the contents of the assessment report.
(4) A court may make an intensive correction order with respect to an offender's sentence of imprisonment only if the assessment report states that, in the opinion of the person making the assessment, the offender is a suitable person to serve the sentence by way of intensive correction in the community.
(5) If a court declines to make an intensive correction order with respect to an offender's sentence of imprisonment despite an assessment report that states that the offender is a suitable person to serve the sentence by way of intensive correction in the community, the court must indicate to the offender, and make a record of, its reasons for doing so.
(6) A sentence of imprisonment is not invalidated by a failure to comply with subsection (5)."
116The appellant was assessed to be suitable for an intensive correction order. The report was later tendered. In that respect s 70 provided:
"70 Assessment of suitability
(1) When an offender is referred for assessment, the Commissioner of Corrective Services is to investigate and report to the court on the matters referred to in section 67 (1) and such other matters as the regulations may require.
(2) An offender's assessment report:
(a) must take into account, and specifically address, the matters prescribed by the regulations, and
(b) may indicate the nature of any conditions that it would be appropriate for the court to impose on an intensive correction order if such an order is made.
(3) The regulations may make provision for or with respect to the conduct of investigations and the preparation of reports for the purposes of this Part."
117The report was governed by Regulation 14 of the Crimes (Sentencing Procedure) Regulation 2010, which provides:
"14 Assessment reports
(1) An offender's assessment report must take into account, and specifically address, the following matters:
(a) any criminal record of the offender, and the likelihood that the offender will re-offend,
(b) any risks associated with managing the offender in the community (taking into account the offender's response to supervision in the community on previous occasions),
(c) the likelihood that the offender will commit a domestic violence offence,
(d) whether the offender will have suitable residential accommodation for the duration of an intensive correction order,
(e) whether any circumstances of the offender's residence, employment, study or other activities would inhibit effective implementation of an intensive correction order,
(f) whether the persons with whom it is likely the offender would reside, or continue or resume a relationship, understand the requirements of an intensive correction order and are prepared to live in conformity with them, so far as may be necessary,
(g) whether the making of an intensive correction order would place at risk of harm any person who would be living with or in the vicinity of the offender,
(h) any dependency of the offender on alcohol or drugs, or other substance abuse, that would affect the offender's ability to comply with the offender's obligations under an intensive correction order,
(i) any physical or mental health conditions of the offender that would affect the offender's ability to comply with the offender's obligations under an intensive correction order,
(j) the existence and extent of any self-harm risk, including the likely impact of an intensive correction order on that risk, and the availability in the community of the support and treatment services necessary to manage the risk.
(2) If a child under the age of 18 years would be living with an offender serving a sentence of imprisonment by way of intensive correction, the assessment report must take into account, and specifically address, the effect on the child of that fact.
(3) If it appears to the officer preparing the assessment report that the offender is homeless:
(a) all reasonable efforts must be made by the Commissioner of Corrective Services, in consultation with the offender, to find suitable accommodation for the offender, and
(b) the report is not to be finalised until those efforts have been made.
(4) An offender's assessment report must also include an assessment of:
(a) factors associated with his or her offending that would be able to be addressed by targeted interventions under an intensive correction order, and
(b) the availability of resources to address those factors by targeted interventions under an intensive correction order, and
(c) any issues relevant to the administration of an intensive correction order in respect of the offender that may be relevant to the court's determination of an appropriate date to be fixed for the commencement of the sentence."
118The report identified that the appellant had been assessed as suitable for an intensive correction order; that he had signed the necessary undertaking; and that the factors to be targeted if the order was made were a driving programme and a counselling programme. The parties then made further submissions as to the appropriate sentence, before her Honour sentenced the appellant.
119In R v Bateson [2011] NSWSC 643 Buddin J also discussed intensive correction orders in the context of Commonwealth offences, there observing at [67] to [75]:
"67It is common ground that an ICO has been available as a sentencing option for Commonwealth offences since 29 October 2010: Crimes Amendment Regulations 2010 (Cth) (No.4).
68To assist my understanding of the operation of such orders, the parties provided me with a considerable amount of background information. Material provided by Corrective Services NSW suggests that a curfew may be imposed upon the offender in addition to the other conditions to which I have referred. As I understand the situation, the ICO consists of 4 stages, commencing with the most restrictive conditions and progressively working towards fewer restrictions.
69Because ICOs have been available in Victoria for some time, and particularly as there appears to be little difference between the two schemes, the parties drew my attention to some aspects of the scheme which operates in that State. Section 19 of the Sentencing Act 1991 (Vic) enables a court, in the circumstances set out in ss (1), to impose a sentence of imprisonment of not more than one year and order that it be served by way of intensive correction in the community. Section 20(1) sets out the core conditions of an ICO and ss (2) provides that an ICO must have all the core conditions attached to it.
70Core condition (d) requires that the offender attend at a specified community corrections centre, or as otherwise directed by a community corrections officer, for twelve hours during each week of the period of the order or a shorter period specified in the order for the purpose of -
(i) performing unpaid community work as directed by the Regional Manager for not less than eight of those hours; and
(ii) spending the balance (if any) of those hours undergoing counselling or treatment for a specified psychological, psychiatric, drug or alcohol problem as directed by the Regional Manager.
71In DPP v Nikolic [2008] VSCA 226, Warren CJ, with whom Vincent JA agreed, said that
[a]n intensive correction order is not a light sentence. It is intended to be, and ordinarily will be, burdensome and will substantially contribute to the punishment of an offender, including where condign punishment is warranted. [at para 21].
72In DPP v Karazisis & others [2010] VSCA 350, in the context of dismissing Crown appeals against the inadequacy of sentences in which ICOs had been imposed at first instance, a majority of the Court of Appeal in Victoria said:
In any case, it is well established that an Intensive Correction Order must be regarded as a significantly punitive disposition. The conditions of any such order are extremely onerous. Any breach is likely to have dire consequences. [at para 184]
73In R v Lanteri [2006] VSC 225, Gillard J said:
An Intensive Correction Order seeks to meet the objects of sentencing. There is no doubt that it is a form of penalty in that it will intrude into your life for the next 12 months. It will require you to provide your services to the community on an unpaid basis, and further will constantly remind you over the next 12 months of the evils of criminal conduct. It will be an appropriate adjunct to your rehabilitation and a constant reminder to you to never again involve yourself in criminal conduct. [at para 116].
74In Aitken v Moten-Connor (Supreme Court of Victoria, unreported, 9 February 1995) Smith J said:
It becomes necessary then to identify the important features of an Intensive Correction Order. It might be argued that major features of the Intensive Correction Order are the imposition of the term of imprisonment and the treating of the order as a sentence of imprisonment. From the legal point of view that is a very significant aspect of the order. Plainly, however, it is the requirement that the sentence of imprisonment be served by intensive correction that gives an Intensive Correction Order its identity. To remove the latter is to change the character of the Order so that it ceases to be an Intensive Correction Order. [at p 5]
75In Dimitrovski v Jones (Supreme Court of Victoria, unreported 23 August 1994) Mandie J said:
In his Second Reading Speech relating to the Sentencing Bill in the Legislative Assembly on 19 th March 1991, the then Attorney-General said this: "The Bill introduces a new sanction - the intensive correction order. This measure is designed to provide a severe punishment just short of imprisonment but more severe than a community-based order." [at p4]"
120It seems to me that the Crown's submission that an intensive correction order reflects a significant degree of leniency may be accepted, but that still it may not be overlooked that such an order involves a substantial punishment, properly available to be imposed in a case such as this, where her Honour came to the view that the appellant's offending was at the lower end of moral culpability. As discussed in the authorities, there will be cases where an error of judgment occurs in circumstances where the evidence establishes that an offender's moral culpability is low, even when a death has occurred. The authorities to which the Crown referred demonstrate that in some such cases, the imposition of a non-custodial sentence will not involve error.
121In this case, having come to the view dealt with in s 69(2) of the Act, namely that no sentence other than imprisonment was appropriate and that the term of such a sentence was likely to be less than 2 years, her Honour referred the appellant for an assessment in relation to an intensive correction order. He was assessed to be suitable. Her Honour was thus obliged to give consideration to the factors specified in s 67. She was required to consider the assessment report and to consider whether the applicant was a suitable person to serve the sentence by way of intensive correction order and whether in the circumstances, service of the sentence in the community by way of such an intensive correction order was appropriate.
122I am not persuaded that her Honour erred in coming to the conclusion which she reached. Her Honour's view was that in circumstances where she had assessed the appellant's moral culpability to be low, it was appropriate for the appellant to serve his sentence by way of an intensive correction order, for which he had been assessed as being suitable, on terms which were crafted by her Honour not only to have regard to appropriate and stringent conditions in relation to, for example, supervision, surveillance and community service, but also as to participation in programmes designed to address his serious offending in relation to the operation of motor vehicles. It seems to me that view was well open to her Honour as a matter of discretion, in the circumstances of this offender.
123It follows that this appeal must also be dismissed.