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.
39 The offences against s 52A(1) and (3) to which the Chief Justice referred were, of course, the un-aggravated forms of the offences - see R v Whyte at [231]. It might be noted also that in R v McKinney (1999) 29 MVR 351 at 357, the Chief Justice observed that "the basic reasoning in Jurisic reflects a long line of prior authority in this Court indicating the need for a sharp upward movement in sentencing for this offence".
40 Substantially affected as they were by considerations of double jeopardy, there is nothing to be gained by reflecting on the sentences imposed in R v Jurisic and R v Whyte.
41 The Judicial Commission statistics for manslaughter do not distinguish between manslaughter by criminal negligence and other types of manslaughter and accordingly nothing is to be gained by referring to them. Those for offences under s 52A(2) of aggravated dangerous driving causing death show that of 44 cases involving non-consecutive terms, the highest head sentence was of 8 years (imposed on 2 offenders), the median head sentence was 5 years and the most common head sentence, imposed on 13 offenders, was 6 years. The highest fixed term or non-parole period was of 5 years (imposed on 1 offender), the median sentence was between 30 and 36 months, 19 of the offenders having sentences of one or other of these periods.
42 Returning to the cases mentioned, the offending in R v Cramp where a sentence of 9 years and 4 months including a non-parole period of 7 years was imposed was substantially worse than the Appellant's. In R v Cameron, if the discount for the pleas were added back, the notional sentence for each offence was 9 years including a non-parole period of slightly above 5 years. Being the result of a Crown appeal at a time when principles of "double jeopardy" applied, they were at or below the bottom of what was considered an appropriate range. I regard Cameron's offending also as worse than the Appellant's.
43 The offending in R v Borkowski was again substantially worse than the Appellant's. While, as I have said, the suggested sentence of 12 years including a non-parole period of 9 years seems to me to relate to 2 charges, it was also after a 25% discount for the offender's pleas.
44 On one view the decision in R v Do where concurrent sentences of 4 years including non-parole periods of 3 years were imposed seems out of kilter with these other decisions. However in context the reference to "a criminally negligent act at some point, probably at the commencement of the downgrade, involving an 'initial abandonment of responsibility'" suggests that the offender's fault may have been merely not putting/leaving his truck into gear as soon as he should have, i.e. before it gained substantial speed. The report gives no detail of the operation of the truck's gear box but the Court can take judicial knowledge of the fact that it is not difficult to put many vehicles into gear while they are at some speed. While the full facts are not available, R v Do is thus explicable upon the basis that the criminality involved was of a much lesser degree than that exhibited in any of the other manslaughter offences to which I have referred. Absent some such explanation, I would regard the decision as wrong.
45 In R v Ryan, if the discount for the plea were added back, the notional sentence for an offence of aggravated dangerous driving causing death (another offence being taken into account) was 8 years including a non-parole period of 5 years and 3 months. Ryan's offending - albeit sustained speeding rather than sustained drunken driving - was in significant respects comparable to the Appellant's.
46 In its terms, and even if notionally increased to reflect that the aggravated form of the offence of dangerous driving causing death carries a maximum penalty of 14 years imprisonment compared with the 10 years provided for the form of the offence then under consideration, the guideline of a head sentence of at least 3 years indicated in R v Jurisic and R v Whyte provides limited support for the Crown contention that the sentence of 5 years including a non-parole period of 3 years imposed on the Appellant is manifestly inadequate. However, it must be recognised that in that case the Chief Justice was concerned to indicate what should be minimum sentences, not what they should normally be. Furthermore, it was expressly recognised that the degree to which the enumerated matters bearing on moral culpability was present was calculated to increase the extent of an offender's criminality. Of course the offence here under consideration is manslaughter.
47 This last observation must also be borne in mind when the Judicial Commission statistics for the offences under s 52A(2) are considered. The degree of alcohol and driving would tend to place the Appellant's offence high on the scale of offences that could be committed under s 52A(2), and thus those statistics at least suggest that the sentence imposed on the Appellant for her manslaughter offence was low. So do most of the cases referred to by Grove J in R v Ryan and tabulated above.
48 Clearly the sentence imposed on the Appellant for manslaughter should not have been as great as those imposed or reflected in R v Cramp, R v Cameron and R v Borkowski. However, as the length of sentences increases, the severity increases at a greater rate - see Einfield v R [2010] NSWCCA 87 at [185]; R v Amurao [2005] NSWCCA 32 at [65]. Once it is recognised that when allowance is made for plea discounts, the sentences in those cases were almost double or more the length of that imposed on the Appellant for manslaughter, those cases argue strongly for the conclusion that both the head sentence and the non-parole period imposed on the Appellant for manslaughter should have been greater than they were. In a comparison of the Appellant's sentence with that imposed in R v Ryan for an offence under s 52A(2), the Appellant's conviction for manslaughter argues strongly that her sentence should have been higher, albeit recognition must also be afforded to her subjective factors which were not present or matched in the earlier case.
49 Turning then to the purposes of criminal punishment - see Veen v The Queen (No 2) (1988) 164 CLR 465 at 476 and the Crimes (Sentencing Procedure) Act 1999 s 3A - I accept that in light of subsequent events, deterrence of the Appellant, her rehabilitation and protection of the community do not argue for any higher penalty than has been imposed. However as Hunt CJ at CL said in R v Musumeci (unreported, NSWCCA, 30 October 1997) at [15] where the facts, though different, raised similar considerations:-
… sentencing in this type of case presents a particularly difficult task. They are almost always sad cases for everyone involved. It is never easy to send a youthful person of good character to gaol but, where it is appropriate, it is something which must be done as a deterrent to others. The need for public deterrence will usually outweigh the fact that the particular offender has already learned his or her lesson. Also, retribution remains an important purpose which the sentence must serve.
50 In the last mentioned connection, it was said in R v Crump (unreported, NSWCCA 30 May 1994) and R v Gordon (1994) 71 A Crim R 459 that:-
Retribution, or the taking of vengeance for the injury which was done by the prisoner, is also an important aspect of sentencing: Regina v Goodrich (1952) 70 WN 42 at 43; Regina v Cuthbert (1967) 86 WN (Pt 1) 272 at 274; Regina v Rushby (at 598). Not only must the community be satisfied that the offender is given his just desserts, it is important as well that the victim, or those who are left behind, also feel that justice has been done.
51 While the law has long ago repudiated the concept of "an eye for an eye and a tooth for a tooth" and victims and their relatives are not in the best position to determine appropriate punishments for criminal offences, there seems to me to be a substantial disproportion between both of the sentences imposed on the Appellant and the crimes for which they were imposed. To take by way of example the sentence imposed for occasioning grievous bodily harm on Mr Haddad. The Appellant has more than half finished her sentence for that offence. Mr Haddad remains wheelchair bound, unable to control his bladder and bowel, and dependent on others for the rest of his life.
52 I acknowledge that in the above remarks, I have not attempted a comprehensive review of all cases in the area of driving manslaughter or of aggravated dangerous driving causing death. The number is too great. I have however considered all of the cases which were brought to the Court's attention and to a sufficient number of other cases to be satisfied that I can make an informed judgment on the issues in the Crown appeal.
53 Walmsley DCJ made a finding of special circumstances that has not been challenged. In my view the Crown appeal against both sentences should be allowed, the sentences imposed by Walmsley DCJ quashed and the Appellant re-sentenced as follows:-
(i) For the offence of manslaughter - imprisonment for 7 years including a non-parole period of 4 years, both such periods commencing on 27 November 2011; and