Zreika v R

The remarks on sentence

1. The sentencing judge noted that, given the Applicant's medical history and the observations of witnesses just before and just after the accident, it was clear that the Applicant suffered a seizure whilst driving on Burnett Street. [8] This was a conclusion consistent with that of the neurologists, Dr Dowla and Professor Somerville. The sentencing judge noted that due to the Applicant's incapacity, the truck continued down Burnett Street without any control from him, where it hit an oncoming car and then hit Mr Daher and Mr Moujalli.
2. The sentencing judge noted that the jury verdict indicated that the jury was satisfied, beyond reasonable doubt, that the Applicant's driving was objectively dangerous, and that he did not have an honest and reasonable belief that it was safe for him to drive. [9]
3. The sentencing judge found that the Crown had proved, beyond reasonable doubt, that the Applicant's driving was objectively dangerous for two reasons: (i) that he was driving while suffering from an untreated and undiagnosed epileptic condition; [10] and (ii) that he was driving whilst significantly impaired by a high level of tramadol. [11]
4. The sentencing judge outlined the Applicant's history of blackouts, dating back to 2014, as explained at [10]-[11] above.
5. The sentencing judge held that "the offender was aware of the warnings not to drive, that were given to him by Dr Chen and Dr Dowla". [12] The sentencing judge found that the Applicant clearly knew of his history of blackouts going back to 2014 and of the suspected seizure in January 2016, and could not "have held an honest, let alone a reasonable, belief that it was safe for him to drive". [13] The sentencing judge concluded that: "I am satisfied, therefore, that, consistent with the jury's verdict, the offender chose to drive on 22 July 2017 without any honest belief and without any reasonable belief that it was safe to do so. In my opinion, he chose to drive with knowledge of the risk that he might, without warning, suffer a seizure. In doing so, he favoured his own interests and disregarded the safety of others." [14]
6. In relation to the tramadol, the sentencing judge was unable to determine how many tramadol tablets the Applicant had ingested prior to the collision, but found that the Applicant "ignored instructions as to the use of the drug and took at least twice the prescribed dose". [15] His Honour found that it was dangerous to drive, because the Applicant's capacity to control the truck was significantly impaired by the high level of tramadol in his blood, [16] and the excessive use of tramadol increased the risk that the Applicant would suffer a seizure. [17]
7. However, his Honour was not satisfied that the tramadol in fact caused the Applicant's seizure, [18] and was unable to conclude that the collision was caused by any impairment as a result of the tramadol taken by the Applicant. [19] Nevertheless, his Honour was satisfied, based on the medical evidence, that the Applicant's excessive use of that drug increased the risk that he would suffer a seizure. [20] His Honour further held that he was satisfied beyond reasonable doubt that the Applicant's driving was objectively dangerous, because his capacity to control the truck was significantly impaired by the high level of tramadol in his blood. [21]
8. The sentencing judge rejected a third argument, said to support the jury's verdict, that the Applicant was participating in a telephone call and was therefore distracted, holding that he was not satisfied to the requisite standard that that aspect of alleged dangerousness had been established. [22]
9. Paragraphs 32-38 of the remarks on sentence require full citation because it was this aspect of the sentencing judge's reasoning which was the subject of criticism and attack on appeal. Those paragraphs were as follows: "32 An important part of the sentencing exercise is that I assess the objective seriousness of the offences. I have had regard to the guideline judgment in R v Whyte (2002) 55 NSWLR 252 of the Court of Criminal Appeal of New South Wales, which describes the common characteristics of a 'typical case' of dangerous driving. Of these, there are few which apply in this case. The offender, who was aged 28 at the time of the offences, cannot really be described as a young offender. Although at the time he had no previous criminal convictions, his traffic record does him no credit. While there is some evidence of remorse, the weight I can place on it is limited and the offender does not have the benefit of pleas of guilty. The Court of Criminal Appeal has said that in a typical case, after a guilty plea, a custodial head sentence less than three years in cases of death and less than two years in cases of grievous bodily harm would not generally be appropriate unless the offender's moral culpability is not high. 33 There are a number of aggravating factors that I need to take into account in this case and related to this is the need to consider the moral culpability of the offender. While I accept at the time of the accident there had been no formal diagnosis of the epileptic condition, the fact remains that the offender was aware that prior to 2014, he had suffered several blackouts without warning. He was also aware that in January 2016, he suffered a likely seizure, again without warning. 34 Notwithstanding this history, the offender failed to follow up on recommended testing and apparently continued to drive. It was by reason of his own irresponsible actions that his epileptic condition was not diagnosed earlier. There is also the fact that prior to the accident, and in spite of clear instructions from the pharmacist and on the packaging, the offender had ingested at least double the prescribed dose of tramadol, a drug that he had been told to stop taking when he consulted Dr Dowla in 2016. 35 In addition, and while the offender's driving caused fatal injuries to Mr Daher and grievous injuries to Mr Moujalli, he also put a large number of others at risk. Those persons included Mr Agha, the passenger in the truck, also Mr Youssef and his 13 year old son, who were in the car which was sideswiped on Burnett Street, as well as a young woman pushing a pram with a child in it who was captured on CCTV and who was placed in danger by reason of the need for Mr Youssef to take evasive action to avoid the truck. Also placed in danger were the persons, including young children, inside the house against which the truck eventually came to rest. 36 There is also the fact that the offender's driving on this day involved a 6.5 tonne truck with the increased risk to others associated with a vehicle of that size. Finally, I note also that the offender's driver's licence had been suspended and had not been renewed at the time of the accident, which means that he should not have been driving at all. 37 The maximum penalties make plain that the offences must be regarded as very serious, but of course, that question is also heavily dependent upon the particular circumstances of the case. I have had regard to the maximum penalties, as I am required to do, as guideposts in the sentencing exercise. Having taken into account all of the evidence, I find that the two offences of dangerous driving fall well within the middle range of objective seriousness and at the higher end of that middle range. 38 I consider the offender's moral culpability to be very high. In my view, this is a case where the offender had effectively abandoned responsibility for the risks involved in his driving and chose to continue driving, without investigating his blackout episodes, because it suited him." (emphasis added).
10. The sentencing judge noted that there was "some evidence of remorse" by the Applicant, [23] although it was given only limited weight because the Applicant did not give evidence on sentence. [24]
11. The sentencing judge further noted that he was "unable to form a positive view as to [the Applicant's] prospects of rehabilitation", given the Applicant's admitted history of drug problems, his prior record in relation to traffic offences, that he "chooses to put his own interests ahead of the safety of others", and evidence that just two days after the incident the subject of the charges, the Applicant reapplied for a drivers licence. [25]
12. The sentencing judge concluded that a sentence of imprisonment was "the only appropriate penalty", having regard to the objective seriousness of the offences, the various subjective matters, the purposes of sentencing, and the case law relating to offences of this kind. [26] However, his Honour held that there were special circumstances justifying some variation to the usual ratio between head sentence and non-parole period, being that it was the Applicant's first time in fulltime custody and the desirability that he be supervised over a reasonably extensive period, given the importance of managing his medical condition. [27]

Consideration

1. As noted above, the single ground of appeal relied upon by the Applicant is that the sentencing judge "erred in assessing the objective seriousness of the offence". Two particular criticisms were made in this regard.
2. First, it was submitted that the sentencing judge failed to take into account, in his consideration of the objective seriousness of the offence under s 52A(3)(c) of the Crimes Act, namely dangerous driving occasioning grievous bodily harm, the nature and extent of the injuries suffered by Mr Moujalli. Mr Dhanji SC who appeared for the Applicant submitted that, fully accepting that, by definition, the harm occasioned to Mr Moujalli met the description of "grievous bodily harm", this being an element of the offence under s 52A(3)(c), the harm subsumed by this expression covered a spectrum of seriousness and the sentencing judge for that reason needed to advert to the specific harm caused in assessing the objective seriousness of the offence. This, it was submitted, he failed to do.
3. Evidence regarding Mr Moujalli's injuries was tendered on sentence, both in the form of his medical records and in his victim impact statement, the latter of which referred to the ongoing nature of his injuries. A statement dated 25 September 2018 by Junior Medical Officer Mr Dominic Ku summarised the victim's injuries as including "contusion in the left lobe of liver, ruptured left-sided renal cyst, laceration of inferior pole of left kidney, comminuted and displaced left intertrochanteric fracture and multiple fractures involving the left acromion, left scapula, multiple left-sided ribs (T3-11) and costal cartilages and a moderate left-sided pneumothorax".
4. Mr Moujalli's victim impact statement summarised his physical injuries as follows: "• Injury to my ribs - fractures on the left-hand side - 3-10 ribs plus PTX • Injury to my lung in the form of a collapsed lung which required an operation • Injury to my left shoulder - left acromion fracture, left scapular fracture • Injury to thoracic spine - right T11 transverse process fracture • Injury to left kidney causing a left renal cyst rupture with perinephric stranding • Injury to left elbow - left intertrochanteric fracture • Injury to left thigh/leg • Injury to left knee • Head injury with frontal laceration without intracranial abnormality • post-traumatic amnesia for two weeks following loss of consciousness • traumatic scarring to the right forehead, left, chest, • left buttock, upper thigh region and surgical scarring to the ribcage • lnjury to left hip - intertrochanteric fracture • lnjury to left knee - post-traumatic retro patellar crepitus • Injury to liver - Contusion • Left renal Artery Thrombosis".
5. Mr Moujalli, a man of 74 years of age at the time of the collision, also gave evidence about a range of psychological impacts as a result of his injuries. On any view, his injuries were extremely serious.
6. Mr Dhanji submitted that: "It is not submitted that Mr Moujalli's injuries were other than very serious (or indeed at the bottom of the range of grievous bodily harm). The point made by the applicant is that no proper assessment of objective seriousness could be made without having regard to them… Further, while it is accepted that Mr Moujalli's injuries were numerous and that he continues to suffer ongoing pain and limited mobility as a result of the collision they fall short of the most serious form of injury. Put another way, on the broad spectrum of injuries, while Mr Moujalli['s] injuries were serious, they amounted to considerably less than being in a vegetative state. The level of injury was a matter to which his Honour was required to have regard in his assessment of the objective seriousness of the offence".
7. The Crown's counter to this argument noted that the sentencing judge had described Mr Moujalli's injuries as "very serious" at an early stage of his remarks on sentence and that in expressing his view that the two offences fell within the middle range of objective seriousness and at the higher end of that middle range, he had "taken into account all of the evidence". [28]
8. The sentencing judge commenced his assessment of the objective seriousness of the offences at [32] of his remarks on sentence before reaching the conclusion set out above at [37] of those remarks. It is significant that at [35] of his remarks, in the course of his assessment of objective seriousness, he referred to Mr Moujalli suffering "grievous injuries". That description was entirely appropriate in light of the evidence that was before the sentencing judge, some of which has been set out above. That evidence was not, in my opinion, overlooked by the sentencing judge in his assessment of the objective seriousness of the offence. The injuries were obviously of a very serious kind, as the sentencing judge had noted at an early stage of his remarks, and his Honour did not need to "rate" the level of seriousness on some form of notional scale. It was obvious that they were at the serious end of the spectrum, although they undoubtedly could have been even more serious and severe.
9. True it is that grievous bodily harm is an element of the offence, but I do not consider that the sentencing judge's use of the adjective "grievous" in reference to Mr Moujalli's injuries in the context of his Honour's consideration of the objective seriousness of the offence meant that he had not had specific regard to the nature of Mr Moujalli's injuries and their particular seriousness.
10. I would reject this aspect of the attack on the sentencing judge's assessment of the objective seriousness of the s 52A(3)(c) offence.
11. Mr Dhanji's second point had far more force. It was that the sentencing judge, in making reference to the Applicant's age, limited evidence of remorse and driving record at [32] of the remarks on sentence and the fact, noted at [36] of the remarks, that the Applicant's driver's licence had been suspended and not renewed at the time of the accident, were all matters that, whilst relevant to other aspects of the sentencing process, were extraneous and not properly taken into account in the assessment of the objective seriousness of the offences.
12. This submission relied heavily on the structure of the remarks on sentence. Emphasis was placed, in this regard, on the fact that the sentencing judge turned quite deliberately to the topic of "objective seriousness" of the offences at the beginning of [32] of his remarks on sentence, commenced the last sentence of [36] with the word "Finally", and stated his conclusion that the two offences "fall well within the middle range of objective seriousness" at the end of [37] of the remarks on sentence.
13. Against this it may be noted that paragraphs [33]-[34] of the remarks on sentence also address the topic of moral culpability of the offender, although moral culpability may feed into objective seriousness as this Court has recently confirmed on at least two occasions. [29]
14. It was submitted on behalf of the Applicant that: "The 'objective seriousness of an offence is to be assessed without reference to matters personal to a particular offender or class of offenders. It is to be determined wholly by reference to the nature of the offending' (Muldrock v R (2011) 244 CLR 120; [2011] HCA 39 at [27]). Questions of age and remorse are quintessentially matters personal to a particular offender. Similarly, the applicant's traffic record was not a matter going to the objective seriousness of the offence (R v McNaughton (2006) 66 NSWLR 566; [2006] NSWCCA 242 at [25]). Accordingly, it was an error to take these matters into account as part of his Honour's assessment of the objective seriousness of the offence".
15. In the context of the High Court's statement in Muldrock v The Queen that: "The objective seriousness of an offence is to be assessed without reference to matters personal to a particular offender or class of offenders. It is to be determined wholly by reference to the nature of the offending" [30] , Mr Dhanji drew attention to this Court's decision in Tepania v R where Johnson J (with whom Payne JA and Simpson AJA agreed) noted that: "In sentencing for an offence (whether or not a standard non-parole period offence), a court should make an assessment of the objective gravity of the offence applying general law principles, so that all factors which bear upon the seriousness of the offence should be taken into account (unless excluded by statute). Factors such as motive, provocation or non-exculpatory duress may be taken into account in this way. Regard may be had to factors personal to the offender that are causally connected with or materially contributed to the commission of the offences, including (if it be the case) a mental disorder or mental impairment." (emphasis added). [31]
16. It was submitted that the fact of the Applicant's driving licence suspension "had no causative relationship with the driving" in circumstances where the Applicant had in fact served the period of suspension that had been imposed, but the suspension remained in place pending him successfully passing the Driver Knowledge Test, which he did within a day or two of the offences being committed and which could have been done before they were committed. Mr Dhanji submitted that the Applicant's suspension thereby said "nothing about the danger that he poses on the road", as he was "perfectly entitled to have his licence back on sitting that [knowledge] test again".
17. As the Crown fairly acknowledged, the irrelevance of the Applicant's suspended driving licence to the objective seriousness of the offence was strongly supported by the observations of Hidden J (with whom Spigelman CJ and Latham J agreed) in Rosenthal v R, [32] in which his Honour said: "16 From the passage in the remarks on sentence quoted above, it appears that, in determining that the offence amounted to a 'serious abandonment of responsibility', his Honour had regard to the fact that the applicant was a disqualified driver and was on bail for other offences. Clearly, his Honour used the expression 'abandonment of responsibility' in the context of the guideline promulgated in Whyte (supra). However, the notion of abandonment of responsibility or high moral culpability in the guideline is directed to the objective gravity of the offence. It is concerned, where relevant, with the extent to which the driver was affected by alcohol or a drug and, generally, with the course of driving and the danger posed by it in its attendant circumstances. So much is apparent from the aggravating factors, on which a finding of abandonment of responsibility might be based, referred to by the Chief Justice in Whyte at [216] - [217]. 17 It does not appear to me that the fact that a driver was disqualified, let alone the fact that he or she was on bail for other offences, is relevant to that assessment. Of course, they are matters relevant to sentence generally as they bear on the issue of deterrence, both personal and general. However, I am satisfied that his Honour fell into error in taking them into account on the question of abandonment of responsibility. Accordingly, this Court's discretion to re-sentence the applicant is enlivened."
18. The Crown sought to distinguish the present proceedings from Rosenthal, by submitting that the offender there had been convicted of driving with a quantity of drugs in his system, as opposed to a charge of dangerous driving. However, as was rightly pointed out by Mr Dhanji, the offender in Rosenthal had, similarly to the Applicant in the proceedings before us, been charged under s 52A(3) of the Crimes Act with dangerous driving occasioning grievous bodily harm.
19. The Crown submitted that in Rosenthal, it was "difficult to see how his suspension ha[d] anything to do with his use of drug at the time of his driving", and that "his suspension said nothing in terms of his moral culpability for having the drug in his system at the time of his driving". The Crown submitted that: "Rosenthal should not be read as an all encompassing rule that being a suspended driver cannot speak to an offender's moral culpability. In this case, as his Honour pointed out and found, this applicant should not have been driving, he should not have been driving because he was told not to drive and that was because of his epilepsy. He had taken double the dose of Tramadol and so again, he should not have been driving. This is the point that is being made, more particularly about his neurological condition which was found to be a causative factor in the offence that he should not have been driving. When it comes to para 36, his Honour the sentencing judge noted that his licence had been suspended and not renewed so he shouldn't have been driving at all."
20. In oral submissions, the Crown acknowledged that Hidden J in Rosenthal was speaking in more general terms - that is, generally the fact that a driver is disqualified was not relevant to an assessment of objective gravity - as opposed to speaking with regard to the facts of the particular case and the particular offender.
21. In my opinion, Hidden J's observations in Rosenthal cannot be distinguished and should be applied. Although the fact of the Applicant's licence suspension may have had some relevance in the overall synthetic sentencing process, it did not bear on the objective seriousness of the offence and the structure of the remarks on sentence suggested or at least included the possibility that that consideration had been double-counted as going both to objective seriousness and other sentencing considerations.
22. The Crown also relied on Veen v The Queen (No 2) where the plurality outlined that: "It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind." [33] The Crown also referred to this Court's recent application of Veen in Director of Public Prosecutions v Abdulrahman, [34] in which Beech-Jones J (as his Honour then was and with whom Garling and N Adams JJ agreed) relied on the passage from Veen extracted above and accepted the Crown's submission that the offender's antecedents in that case, including his commission of the relevant offence while subject to an Intensive Correction Order, manifested a "continuing attitude of disobedience of the law" and "illuminate[d] his moral culpability".
23. Whilst the concepts of moral culpability and objective seriousness of an offence may overlap and interact, [35] they are not co-extensive. In the current case, the sentencing judge fell into error, in my opinion, in having regard to the non-causative and unrelated factor of the Applicant's suspended licence in the context of his assessment of the objective seriousness of the offence. That may have gone to or factored into general moral culpability but, for the reasons advanced in Muldrock, Tepania and Rosenthal, it was not relevant to the assessment of the objective seriousness of the offence.
24. This aspect of the appeal must be upheld, with the consequence that the Applicant must be resentenced in accordance with Kentwell v The Queen. [36]

Resentence

1. In moving to resentence, it is to be noted that the maximum sentences for the offences charged were 10 years, in respect of s 52A(1)(c) of the Crimes Act, and 7 years, in respect of s 52A(3)(c) of the Crimes Act. The maximum sentences act as legislative guideposts for an appropriate sentence. [37]
2. The fact that the offences necessarily involved, in the one case, the death of a person, and in the other case, grievous bodily harm, indicates the seriousness of the offences which is reflected in and by the maximum sentences. There is, however, a spectrum of seriousness, and an assessment of the appropriate sentence in any given case requires regard to be had to the range of factors identified in s 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW).
3. There is, of course, also the guideline judgment in R v Whyte. [38] A "frequently recurring case" by reference to which the guideline judgment is to be understood was described by Spigelman CJ in Whyte, [39] as involving the following characteristics: 1. a young offender; 2. of good character with no or limited prior convictions; 3. death or permanent injury to a single person; 4. the victim is a stranger; 5. no or limited injury to the driver or the driver's intimates; 6. genuine remorse; 7. plea of guilty of limited utilitarian value.
4. Spigelman CJ observed that where there is a plea of guilty and 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. [40] The Chief Justice observed that: "In the case of the aggravated version of each offence under s52A, an appropriate increment to reflect the higher maximum penalty, and what will generally be a higher level of moral culpability, is required. Other factors, such as the number of victims, will also require an appropriate increment." [41]
5. Spigelman CJ had earlier [42] identified a list of aggravating factors, building on a list he had first enumerated in R v Jurisic. [43] The amended and consolidated list of aggravating factors was as follows: 1. extent and nature of the injuries inflicted; 2. number of people put at risk; 3. degree of speed; 4. degree of intoxication or of substance abuse; 5. erratic or aggressive driving; 6. competitive driving or showing off; 7. length of the journey during which others were exposed to risk; 8. ignoring of warnings; 9. escaping police pursuit; 10. degree of sleep deprivation; 11. failing to stop.
6. It was submitted on behalf of the Applicant that the objective seriousness of both offences fell below the mid-range. In the case of the offence under s 52A(3)(c) of the Crimes Act, it was submitted in this context that the injuries suffered by Mr Moujalli fell within the lower range for grievous bodily harm. I do not accept this aspect of the submission. Mr Moujalli's injuries have been referred to at [35]-[36] above. They were extensive and debilitating, causing him to be hospitalised for almost a month prior to needing to undertake rehabilitation. Indeed, there was some tension between the oral submission quoted at [38] above and the written submission asserting that the injuries fell within the lower range for grievous bodily harm.
7. The Crown contended that the two offences were correctly characterised by the sentencing judge as being at the higher end of the middle range of objective seriousness. The Crown relied upon the fact that the Applicant drove a truck, with the consequences that would flow from even momentary inattention being obvious. In this respect, the Crown made reference to a number of decisions of this Court. [44]
8. In Gillett, McClellan CJ at CL (with whom Sully and Hislop JJ agreed) said that: "[w]here, as in the present case, a person takes control of a motor vehicle in circumstances where they know they represent a real risk to others and it is a risk over which they have no control, they must expect that, if the risk materialises, the penalty which will be imposed will reflect the fact that their offending had a high degree of criminality. A licence to drive a motor vehicle is a privilege which carries with it significant obligations. Those obligations require the driver to not only drive safely on the road but also to ensure that by reason of their physical health and capacity they do not endanger the lives of others. If that obligation is not met and injury or death is occasioned to others, a severe penalty will be appropriate in most cases. Every user of the road accepts a risk of injury or death. Those risks are only acceptable if other users of the road do what they can to minimise or avoid identifiable risks." [45]
9. In Harris, Adamson J (with whom Basten JA and RA Hulme J agreed) observed: "Although a motor vehicle is a modern convenience when properly handled, it is a deadly weapon when its driver is incapable of manoeuvring it safely. Once the respondent made the decision to drive, he made himself, those of his children who were passengers in his car, and any driver, passenger or pedestrian whom he might encounter on his journey, hostages to fortune. His ability to drive was already impaired to some extent by the drugs he ingested. If the risk of an epileptic response rendering him incapable of handling the vehicle (which was a real risk in light of what he knew as set out above) came to pass, it was a matter of pure chance whether any ensuing collision would result in injuries to himself and the occupants of his vehicle or to others, and whether death would ensue. The respondent decided to take that chance…" [46]
10. The taking of that chance by the Applicant resulted in fatal consequences for Mr Daher, lasting and serious injuries for Mr Moujalli and, as attested to in impact statements before the sentencing judge, a devastating impact on the immediate and extended families of both the deceased and Mr Moujalli.
11. This was not a case which was marked by a number of the aggravating factors identified by Spigelman CJ in Whyte such as excessive speed, sleep deprivation, competitive driving, showing off or seeking to escape police pursuit. It is true, however, as the sentencing judge correctly observed, that the Applicant put a large number of others at risk, [47] and there was, on the sentencing judge's findings, the ignoring of a number of warnings by medical practitioners about not driving, [48] most specifically the warning by Dr Chen who told him not to drive until cleared by a neurologist and cardiologist. [49] Whether the failure to act on these warnings was arrogance or a form of denial by the Applicant, the consequences of the ignoring of these expert warnings came home tragically.
12. Another aggravating factor relied upon by the Crown was substance abuse. The only relevant abuse in this context was the levels of tramadol found in the Applicant's system immediately after the collision. [50] The degree of substance abuse, although held to have increased the risk of seizure, [51] was not found by the sentencing judge to have been a cause of the Applicant's seizure, [52] which was held to be the cause of the collision. In this context, the sentencing judge recorded that "the various medical and scientific witnesses said that seizure is a rare side effect of tramadol use". [53] On the other hand, there is also the unchallenged finding that "the Applicant's capacity to control the truck was significantly impaired by the high level of tramadol in his blood". [54] There is also the fact, as the Crown accepted in its submissions below the sentencing judge, that the tramadol had been prescribed by a medical practitioner two weeks before the commission of the offences. That did not warrant the taking of excessive quantities of the tramadol, but it is to observe that this was not a case of abuse of illicitly obtained substances.
13. Whilst it is no excuse, it is not irrelevant, especially given the pejorative connotations associated with the word "abuse" in the context of substance abuse, that the Applicant's use of tramadol was associated with relief for chronic back pain sustained in a car accident when the Applicant was 19 years of age. [55] The tramadol found in the Applicant's system after the offences were committed was described in evidence as being "a narcotic analgesic used to treat moderate to severe pain and similar to codeine and morphine in its 'feel good serotonin effects'." [56] It is, however, relevant that the Applicant had apparently been told to stop taking this drug when he consulted Dr Dowla in 2016. [57]
14. The objective seriousness of the offences was, in my opinion, within the middle-range but not at the high end of that range, as the sentencing judge held, [58] nor below the mid-range, as Mr Dhanji contended. The use of language such as "mid-range" is somewhat invidious and perhaps unfortunate in that, to a layperson, especially a victim or the family of a victim, it may be understood as de-emphasising the terrible and devastating consequences of the offences. That is obviously not the Court's intent and, as has often been remarked, such cases are completely tragic. [59] It is necessary, however, as a central aspect of the sentencing task, to make an assessment of the degree of objective seriousness of an offence or offences in circumstances where there is a spectrum of seriousness involved. Aggravating factors, where present, will usually increase the objective seriousness of an offence. They may also increase moral culpability.
15. As to moral culpability, it was accepted on behalf of the Applicant that "[i]t would be fair to characterise" his moral culpability as "high". The sentencing judge's findings that the Applicant had knowledge of the risk that he might, without warning, suffer a seizure [60] and yet decided to drive anyway, and that he had also taken at least twice the prescribed dose of tramadol and was consequently impaired by a high level in his blood which increased the risk that he would suffer a seizure, [61] were unchallenged. The high level of moral culpability is reflected in the sentencing judge's conclusion that "the offender had effectively abandoned responsibility for the risks involved in his driving and chose to continue driving, without investigating his blackout episodes, because it suited him." [62] On the other hand, it is relevant to note that, as the sentencing judge also found, at the time of the collision, the Applicant "had an epileptic condition which was undiagnosed and untreated". [63]
16. There is evidence of remorse both in the form of a handwritten letter from the Applicant to the family of the deceased and Mr Moujalli in which, to adopt the sentencing judge's summary, the Applicant "expresses sympathy for their situation, and says, in effect, that he accepts the jury's decision". [64] That remorse is borne out by what the Applicant told a psychologist, Ms North, who provided a report to the Court and was cross-examined in the sentencing hearing. Whilst the sentencing judge evidently did not "attach a great deal of weight to the expressions of remorse in the psychological report or in the letter given that the offender chose not to give evidence and be cross examined in the sentence proceedings", [65] I would be inclined to give it more weight. Whilst the Applicant's offences undoubtedly involved high degrees of recklessness and risk taking and were selfish and self-centred in that regard, it is easy to be wise after the event. It would be entirely natural for a person in the Applicant's position to feel a high degree of remorse and contrition, and the terms in which the handwritten letter are expressed together with the psychologist's report of her observations of the Applicant support the view that the Applicant's remorse was genuine and sincere.
17. As to the Applicant's prospects of rehabilitation, nothing was put in written or oral submissions to challenge or contest the sentencing judge's assessment that: "It is difficult to form a positive view at to the prospects of rehabilitation and as to the unlikelihood of reoffending given the offender's admitted history of drug problems and his prior record in relation to traffic offences. In this regard, and as I have already noted, the Court is faced with evidence that a mere two days after the catastrophic accident involving Mr Daher and Mr Moujalli, and the very next day after being told by doctors at Westmead Hospital that he must not drive until cleared by medical follow up, the offender reapplied for a licence. Moreover, there is the fact that on 3 August 2017, 12 days after the accident, the offender was stopped by police for traffic offences and responded, when asked why he was using a mobile phone while driving, that the call had 'just made him $1 million'. In my view, this comment is illustrative of the offender's cavalier attitude to his driving. It is an indication, taken together with his history of traffic offences and failure to follow up on his medical condition, that he is a person who chooses to put his own interests ahead of the safety of others. For these reasons, I am unable to form a positive view as to his prospects of rehabilitation." [66]
18. The Crown submitted, and I accept, that the Applicant did not present a persuasive case on his prospects of rehabilitation. It may be that the remorse which the Applicant has come to feel may improve those prospects but, on balance, I take the same view as to his prospects of rehabilitation as did the sentencing judge, as set out in the passage extracted in the previous paragraph.
19. There is also the need for specific and general deterrence. As to both, the Applicant's failure to heed serious warnings about driving and to take appropriate treatment showed a pattern of risk taking, whether borne of arrogance or denial or a combination of both, but the risk was not personal only to himself but extended to all other users of the road and pedestrians and people such as the deceased and Mr Moujalli working happily and innocently in their front gardens. Such self-centred risk taking calls for strong deterrence.
20. As to special circumstances, I am of the same view as the sentencing judge, namely that there are special circumstances for some variation in the usual ratio between head sentence and non-parole period by reason that this is the offender's first time in fulltime custody and by reason of the desirability that he be supervised over a reasonably extensive period, given the importance of managing his medical condition. [67]
21. Taking all these matters into account, together with the guidance given in Whyte and the legislative guideposts provided by the maximum penalties for the two offences of which the Applicant was convicted, I would impose an aggregate sentence. As Adamson J (with whom Basten JA and RA Hulme J agreed) observed in Harris, [68] since all offences arose from the single incident there is nothing to be gained by expressing the degree of concurrence or accumulation, or specifying cascading commencement dates.
22. The aggregate sentence I would impose is 5 years and 6 months, a reduction of 6 months from the sentence imposed by the sentencing judge. The indicative sentences for each offence are the same as those identified by the sentencing judge, namely for the s 52A(1)(c) offence, imprisonment for a period of 5 years and, for the s 52A(3)(c) offence involving grievous bodily harm to Mr Moujalli, imprisonment for a period of 3 years 6 months.
23. The finding of special circumstances warrants a variation of the usual ratio of non-parole period to head sentence and I impose a non-parole period of 3 years 8 months. As the offender went into custody on 4 June 2019, the head sentence will expire on 3 December 2024. The non-parole period will expire on 3 February 2023. The offender will also be disqualified from driving for the automatic period of three years which, by operation of the Road Transport Act, will commence upon his release to parole.
24. PRICE J: I agree with Bell P and the orders the President proposes.
25. HAMILL J: I have had the considerable advantage of reading the draft reasons of Bell P. His Honour's comprehensive judgment relieves me of the need to repeat the details of the facts, evidence and legal issues that arise. I agree that the appeal must be upheld and that the applicant should be re-sentenced. However, I would uphold both aspects of the applicant's complaint under Ground 1 and, in exercising the sentencing discretion independently and afresh, would impose a shorter sentence than that proposed by the President. I note that these are minority views, Price J having indicated his agreement with Bell P, and can state my reasons quite briefly.

Ground 1

1. There are two parts of the applicant's contention under Ground 1 that the sentencing Judge erred in his assessment of the objective criminality of the offence. I agree with Bell P that the error relating to the inclusion of personal features and the suspension of the applicant's driver's licence is established. I agree with his Honour's reasons. The court as presently constituted should follow the earlier authority of this Court and, in particular, the decision of Hidden J (with whom Spigelman CJ and Latham J agreed) in Rosenthal v R [2008] NSWCCA 149. It should also confirm the long-standing principle that subjective matters such as an offender's criminal history do not (generally) inform the proper assessment of the "objective criminality" of an offence.
2. However, I am unable to agree with the conclusion of Bell P concerning the first aspect of the applicant's contention, namely the argument that there was error in the failure of the sentencing Court to take into account the nature and extent of the injuries suffered by Mr Moujalli.
3. At the risk of oversimplification, there are two central aspects in determining the relative objective seriousness of an offence under s 52A(3)(c) of the Crimes Act 1900 (NSW) alleging dangerous driving occasioning grievous bodily harm. The first is to make an assessment of the dangerousness of the driving and the extent to which the applicant has abandoned responsibility: see, generally, R v Jurisic (1998) 45 NSWLR 209 and R v Whyte (2002) 55 NSWLR 252; [2002] NSWCCA 343. The sentencing Judge undertook this task carefully and thoroughly.
4. The second aspect is to assess the degree and seriousness of the injury or disability that constitutes the element of "grievous bodily harm". I accept the applicant's submission that the failure to undertake this evaluation amounted to "House error"; [69] a relevant consideration was not taken into account. I accept the applicant' submission that "no proper assessment of the objective seriousness could be made without having regard to [Mr Moujalli's injury]".
5. In upholding those arguments, it is important to recall that "grievous bodily harm" or "really serious injury" encompasses a very broad range of injuries and disabilities: see, for example, Haoui v R [2008] NSWCCA 209 at [138]-[139], [142] (Beazley P) and [162] (Johnson J) and Swan v R [2016] NSWCCA 79. Cases like Haoui, which involved a facial bone fracture, fall (according to the majority in that case) at the very lowest end of the definition of grievous bodily harm. [70] At the other end of the spectrum, as Senior Counsel for the applicant pointed out, are cases where the victim is left in a vegetative state.
6. As to the relevance of the evaluation of the seriousness of the injury to an assessment of the criminality involved in such an offence, reference might be made to Judge Berman SC's remarks on sentence in R v Haoui [2007] NSWDC 139 and the judgment of this Court in R v Woodland [2007] NSWCCA 29 at [31]-[35]. In the original guideline judgment on dangerous driving causing death or grievous bodily harm, Spigelman CJ set out a list of factors that "will determine the appropriate penalty": R v Jurisic at 231B. The first of these was "the extent and nature of the injuries inflicted". The relevance of the factors identified in Jurisic matter was also discussed R v Whyte at [216].
7. An analogy or comparison can be drawn or made with offences under s 33 - 35 of the Crimes Act 1900 which also involve the infliction of grievous bodily harm. For instance, in R v Mitchell; Regina v Gallagher [2007] NSWCCA 296; (2007) 177 A Crim R 94 it was held at [27]: "A very important aspect of an offence under s 33 is the result of the offender's conduct. The nature of the injury caused to the victim will to a very significant degree determine the seriousness of the offence and the appropriate sentence. The nature of the injury caused to the victim will to a very significant degree determine the seriousness of the offence and the appropriate sentence. This is not to underestimate the intent component of the offence, after all that is the element that makes the offender liable to a maximum penalty of 25 years as opposed to 7 years for a s 35 offence. But there is less scope for variation in the nature of the intention to do grievous bodily harm when determining the seriousness of a particular instance of the offence than there is for variation in the nature of the injury inflicted."
8. Similar observations were made in R v Zhang [2004] NSWCCA 358 at [18] and in Kemp v R [2012] NSWCCA 281 at [44].
9. The President has detailed the evidence of Mr Moujalli's injuries, disabilities and their impact on the quality of his life at [35]-[37]. I agree with his Honour that it was not necessary for Judge Bourke SC to do that, and I also agree that the sentencing Judge was not required to "rate" the level of seriousness. However, I am unable to accept the respondent's submission that it was enough for the sentencing Judge merely to refer to the fact that the injuries were "very serious". That is to do no more than state the definition of grievous bodily harm. This is not sufficient when the expression encompasses such a wide range of injury or harm. Similarly, I do not accept that a general reference to having "taken into account all of the evidence" established a proper engagement with the task of evaluating "the extent and nature of the injuries": R v Jurisic at 231.
10. The failure to undertake some evaluation of [Mr Moujalli's injury], when considered with what Bell P has written about the use of the licence suspension as a factor elevating the objective seriousness of the offence, reinforces the conclusion that Ground 1 must be upheld.

Re-sentencing

1. As Simpson J said White v R [2016] NSWCCA 190 at [131]; (2016) 261 A Crim R 302: "The necessity to re-exercise the sentencing discretion requires that I put out of my mind the sentence originally passed, and bring to the exercise a fresh mind, taking into account all relevant circumstances. That involves a genuine fresh approach to sentencing, uninfluenced by the selection of sentence at first instance. The duty is not discharged by starting with the original sentence, and reducing it by a margin, to accommodate what might be taken to have been the effect of the errors exposed."
2. I agree generally with the President's analysis of relevant matters relating to re-sentencing and I will not attempt to repeat that analysis.
3. In view of what I have written above, I should commence by referring to Mr Moujalli's injuries. They were devastating injuries for him and are likely to have a lifelong impact on an innocent victim going about his day to day life. They fell well above the threshold of injuries that might constitute grievous bodily harm. On the other hand, they were far removed from injuries that result in serious brain damage, blindness, paraplegia or victims being left in a vegetative state. The nature and extent of the injuries is to be taken into account in assessing the seriousness of the offence and the appropriate sentence, but the injuries in this do not constitute an "aggravating factor" as that expression is used in either the guideline judgments or s 21A(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW). The injuries do not reach the threshold for that provision to be enlivened, as somewhere greater than that which ordinarily attaches to an offence of this kind. [71]
4. Insofar as it is necessary and useful to do so, I agree with the President's assessment of the objective seriousness of the offence in paragraph [70]. However, this was an unusual case of dangerous driving and making comparisons with more typical examples is fraught with difficulty. As Bell P has emphasised, the impact of all such offences on the victims and their families is devastating and tragic. While the applicant disregarded medical advice not to drive and clearly took more of his pain medication (Tramadol) that was prescribed, his epilepsy was undiagnosed and untreated. It was not accepted that his Tramadol use caused the seizure, let alone that the applicant was aware of the risk that it would. It remains the case that the applicant abandoned responsibility for the safety of other road users by failing to have his medical condition property investigated, by ignoring medical advice, by driving when he had a history of seizures, and by taking too much of his pain-killing medication. On the other hand, this was not a case of excessive consumption of alcohol or illegal drugs, competitive or erratic driving, or escaping a police pursuit.
5. Like Bell P I would give more weight to the applicant's expressions of remorse than did the sentencing Judge, although l also agree with the President that I would not deviate from the guarded assessment of the applicant's prospects of rehabilitation. I agree, for the reasons expressed by Bell P at [76], that there are special circumstances warranting a longer than usual period on parole. Deterrence, both general and specific, are important considerations; as is retribution, and the associated need to recognise the harm done to the victims and to make the offender accountable for his actions.
6. While I am not convinced it is necessary to do so in a case involving two offences, I will follow the lead of the sentencing Judge and the President and propose an aggregate sentence. I consider that different indicative sentences are appropriate. The difference in the ultimate numbers is not surprising because, as is often said, there is no single, correct sentence. The indicative sentences I propose for the purpose of s 53A(2)(b) of the Crimes (Sentencing Procedure) Act are:

• Count 1 - imprisonment for 4 years
• Count 2 - imprisonment for 3 years.

1. The aggregate sentence I would impose is four years and nine months with an aggregate non-parole period of three years and three months.
2. I would confirm: (i) the orders made in the District Court under s 10A of the Crimes (Sentencing Procedure) Act with respect to the offences dealt with under s 166 of that Act and (ii) the disqualification period.

Orders

1. Accordingly, the orders I would make are: 1. Application for leave to appeal granted. 2. Appeal allowed. 3. Quash the aggregate sentence imposed in the District Court and in lieu thereof the applicant is sentenced to an aggregate sentence of four years and nine months (commencing 4 June 2019 and expiring 3 March 2024) with a non-parole period of three years and three months expiring on 3 September 2022. 4. The applicant will be eligible for release to parole at the expiration of the non-parole period. 5. Confirm the orders under s 10A of the Crimes (Sentencing Procedure) Act 1999 (NSW) made in the District Court in relation to the offences in sequences 5 (drive while licence suspended) and 6 (drive with unsecured load). 6. The applicant will be disqualified from driving for the automatic period of three years which will commence upon his release to parole.

Endnotes

1. Remarks on sentence at [14] (ROS).
2. ROS at [14].
3. ROS at [15].
4. See [25] below.
5. ROS at [16].
6. ROS at [18].
7. ROS at [7].
8. ROS at [10].
9. ROS at [11].
10. ROS at [12].
11. ROS at [30].
12. ROS at [20].
13. ROS at [20].
14. ROS at [22].
15. ROS at [24].
16. ROS at [30].
17. ROS at [29].
18. ROS at [25].
19. ROS at [29].
20. ROS at [25].
21. ROS at [30].
22. ROS at [31].
23. ROS at [32].
24. ROS at [39].
25. ROS at [40].
26. ROS at [45].
27. ROS at [45].
28. ROS [37].
29. Fisher v R [2021] NSWCCA 91 at [70]; Kelley v R [2021] NSWCCA 173 at [38]-[39].
30. (2011) 244 CLR 120; [2011] HCA 39 at [27] (Muldrock).
31. (2018) 275 A Crim R 233; [2018] NSWCCA 247 at [112] (Tepania).
32. [2008] NSWCCA 149 at [16]-[17] (Rosenthal).
33. (1988) 164 CLR 465 at 477; [1988] HCA 14 (Veen).
34. [2021] NSWCCA 114 at [41]
35. See fn. 29 above.
36. (2014) 252 CLR 601; [2014] HCA 37.
37. Muldrock at [27].
38. (2002) 55 NSWLR 252; [2002] NSWCCA 343 (Whyte).
39. Whyte at [204].
40. Whyte at [229].
41. Whyte at [231].
42. Whyte at [216]-[217].
43. (1998) 45 NSWLR 209 at 231; (1998) 191 A Crim R 259.
44. R v Clampitt-Wotton [2002] NSWCCA 383 at [18]; Gillett v R (2006) 166 A Crim R 419; [2006] NSWCCA 370 (Gillett); Markham v R [2007] NSWCCA 295; Cvetjovski (Cvetkovski) v R [2019] NSWCCA 100; R v Harris [2015] NSWCCA 81 (Harris).
45. At [47].
46. At [60].
47. ROS at [35].
48. ROS at [15]-[20].
49. ROS at [15], [20].
50. See at [19]-[20] above.
51. ROS at [25].
52. ROS at [25].
53. ROS at [24] (emphasis added).
54. ROS at [30].
55. Report of Ms Kris North, Forensic Psychologist, dated 25 July 2019 (AB 175, 179).
56. ROS at [8].
57. ROS at [34].
58. ROS at [37].
59. See, for example, Byrne v R; Cahill v R [2021] NSWCCA 185 at [4].
60. ROS at [22]
61. ROS at [24], [25] and [30].
62. ROS at [38].
63. ROS at [12] (emphasis added).
64. ROS at [39].
65. ROS at [39].
66. ROS at [40].
67. ROS at [45].
68. At [70].
69. House v The King (1936) 55 CLR 499 [1936] HCA 40.
70. Beazley P (as her Excellency then was) held that the injury did not amount to grievous bodily harm.
71. R v Youkhana [2004] NSWCCA 412 at [26]. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 11 October 2021