Crane v The King

[2024] NSWCCA 87

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available
• Amendment notes

Medium Neutral Citation:

Crane v R [2024] NSWCCA 87

Hearing dates:

3 May 2024

Date of orders:

5 June 2024

Decision date:

05 June 2024

Before:

Stern JA at [1];
Rothman J at [2];
Yehia J at [4]

Decision:

(1)   Grant leave to appeal.

(2)   Appeal allowed.

(3)   Quash the sentence imposed in the District Court on 16 August 2023.

(4)   In lieu thereof, sentence the applicant to a non-parole period of 3 years and 9 months commencing on 10 February 2022 and expiring on 9 November 2025, with a balance of a term of 2 years and 9 months, expiring on 9 August 2028. The total term is one of 6 years and 6 months imprisonment.

(5)   The earliest date upon which the applicant will be eligible for release to parole is 9 November 2025.

Catchwords:

CRIME – Appeals – appeal against sentence – dangerous driving causing death – where the statutory element of aggravation is excessive speed – whether the sentencing judge conflated the statutory element of aggravation with the circumstance of aggravation being driving under the influence of methylamphetamine – whether the applicant’s mental health conditions materially contributed to the offending – giving practical effect to a finding of special circumstances – variation to the statutory ratio should meaningfully reflect the period of parole required to sufficiently address rehabilitation – appeal upheld – re-sentence

Legislation Cited:

Crimes Act 1900 (NSW), ss 52A(7)(b), 52A(7)(d)

Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 37A, 44

Criminal Appeal Act 1912 (NSW), s 5(1)(c)

Cases Cited:

AM v R [2020] NSWCCA 101

C v R [2022] NSWCCA 285

Carl v R [2023] NSWCCA 190

CM v R [2013] NSWCCA 341

DC v R [2023] NSWCCA 82

DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194

El-Ahmad v R [2015] NSWCCA 65

Foaiaulima v R [2020] NSWCCA 270; 285 A Crim R 222

Grant v R [2014] NSWCCA 67

Hawat v R [2020] NSWCCA 121

Hili v R (2010) 242 CLR 250; [2010] HCA 45

Kentwell v R (2014) 252 CLR 601; [2014] HCA 37

Khorami v R; R v Khorami [2021] NSWCCA 228

Luque v R [2017] NSWCCA 226

MD v R [2015] NSWCCA 37

Moiler v R [2021] NSWCCA 73

Norouzi v R [2020] NSWCCA 237

R v Bortic [2021] NSWCCA 138

R v Crane [2023] NSWDC 315

R v Ferguson [2022] NSWCCA 147

R v Fidow [2004] NSWCCA 172

R v Meakin [2019] NSWSC 1555

R v Moffitt (1990) 20 NSWLR 114; (1990) 49 A Crim R 20

R v Munro [2019] NSWDC 743

R v Pickard [2023] NSWCCA 7

R v Polutele [2020] NSWDC 33

R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534

R v Sutton [2004] NSWCCA 225

R v Whyte (2002) 55 NSWLR 252; [2002] NSWCCA 343

Ryan v R [2017] NSWCCA 209

Sevastopoulos v R [2011] NSWCCA 201

Tuncbilek v R [2020] NSWCCA 30

Wong v R (2001) 207 CLR 584; [2001] HCA 64

Woods v R [2020] NSWCCA 219

Young (a pseudonym) v R [2021] NSWCCA 163

Category:

Principal judgment

Parties:

Peter Stephen Crane (Applicant)
Rex (Respondent)

Representation:

Counsel:
R Rodger (Applicant)
J Styles (Respondent)

Solicitors:
Legal Aid NSW (Applicant)
Office of the Director of Public Prosecutions (Respondent)

File Number(s):

2022/00039789

 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Citation:

[2023] NSWDC 315

Date of Decision:

16 August 2023

Before:

Montgomery DCJ

File Number(s):

2022/00039789

HEADNOTE

[This headnote is not to be read as part of the judgment]

The applicant, Peter Stephen Crane, pleaded guilty in the District Court to one count of aggravated dangerous driving occasioning death, contrary to s 52A(2) of the Crimes Act 1900 (NSW). The offence attracts a maximum penalty of 14 years imprisonment and there is no standard non-parole period applicable.

Montgomery DCJ sentenced the applicant to a term of imprisonment of 6 years and 6 months imprisonment, commencing on 10 February 2022 and expiring on 9 August 2028. The non-parole period imposed was 4 years and 6 months, to expire on 9 August 2026. The sentencing judge applied a 25% discount to reflect the applicant’s early plea of guilty.

On 19 January 2022 at about 1:25am Mr Crane was driving a vehicle at Wentworth Falls, with a passenger in the front seat. As the vehicle approached a gentle right-hand bend in the road, it continued straight and collided with a concrete safety barrier. At the time of the collision, the applicant was travelling at 112km/h. The posted speed limit was 60 km/h. The passenger sustained significant internal injuries and was conveyed to hospital. En route, the passenger went into cardiac arrest and was pronounced life extinct. The injuries sustained in the collision were the cause of the passenger’s death.

At sentence, it was not in dispute that at the time the applicant was driving he was under the influence of methylamphetamine to such an extent that his ability to drive was significantly impaired. The element of aggravation relied upon by the Crown, for the purposes of s 52A(7)(d), was the speed at which the applicant was driving at the time of the collision. The sentencing judge considered that the applicant’s driving was “substantially, in a high level, affected” by methylamphetamine intoxication and that was a circumstance of aggravation.

The sentencing judge did not consider the applicant’s diagnoses of schizophrenia, post-traumatic stress disorder and attention deficit hyperactivity disorder to be a contributing cause of the offending (although his Honour did acknowledge there was a “well known” and indirect link between the applicant’s schizophrenia and methamphetamine addiction such as to mitigate “to some extent” the applicant’s subjective moral culpability for the offending).

The sentencing judge also made a finding of special circumstances. The standard parole/non-parole period ratio was adjusted downwards by a modest period of 4 months.

The applicant sought leave to appeal against his sentence on the following four grounds:

1. The sentencing judge erred in finding that the applicant’s ability to drive was “substantially, in a high level, affected” when the Crown had conceded that the element of aggravation pursuant to s 52A(7)(d) could not be made out on the evidence.

2. The sentencing judge erred in finding that there was no causal connection between the applicant’s mental health and the offending and/or failed to have regard to other relevant principles applicable to offenders suffering from mental health issues.

3. The sentencing judge erred as the finding of special circumstances was not given practical effect.

4. The overall term of imprisonment is manifestly excessive.

The Court held (per Stern JA, Rothman and Yehia JJ) granting leave to appeal against the sentence, allowing the appeal and re-sentencing the applicant.

As to ground (i), per Yehia J at [57], [59] (Stern JA at [1] and Rothman J at [2] agreeing):

1. The sentencing judge did not conflate the concept of statutory aggravation (speed) and a circumstance of aggravation (intoxication). The sentencing judge’s various descriptions of the applicant’s degree and effect of intoxication were made in the context of addressing the relevant aggravating factors, and the remarks on sentence, when read as a whole, did not refer to intoxication as an element of statutory aggravation for the purposes of s 52A(7)(d). Ground (i) is not made out.

   R v Whyte (2002) 55 NSWLR 252; [2002] NSWCCA 343

As to ground (ii), per Yehia J at [82], [84], [85] (Stern JA at [1] and Rothman J at [2] agreeing):

1. The sentencing judge did not err in determining that there was no causal connection between the applicant’s mental health and the offending. The sentencing judge turned his mind to the issue, finding that there was a link between the applicant’s schizophrenia and methamphetamine addiction which reduced his subjective moral culpability “to some extent.” It was entirely open to the sentencing judge to find that the applicant’s mental health issues did not materially contribute to the offending. Ground (ii) is not made out.

   DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194; DC v R [2023] NSWCCA 82; Moiler v R [2021] NSWCCA 73; Ryan v R [2017] NSWCCA 209.

As to ground (iii), per Yehia J at [94], [100], [104] (Stern JA at [1] and Rothman J at [3] agreeing):

1. Failure to give practical effect to a finding of special circumstances may constitute error.

   Sevastopoulos v R [2011] NSWCCA 201; El-Ahmad v R [2015] NSWCCA 65; Woods v R [2020] NSWCCA 219

2. Where a finding of special circumstances is made, at least in part, in reliance on the need for extended rehabilitation, any variation to the statutory ratio should meaningfully reflect the period of parole required to sufficiently address that rehabilitation. There was no explanation by the sentencing judge as to why, having found special circumstances, at least in part, to afford the applicant the opportunity of rehabilitation, there was only a modest downward adjustment in the non-parole period. The variation here, was so small that it did not give practical effect to the finding of special circumstances. Ground (iii) is made out.

   AM v R [2020] NSWCCA 101; R v Moffitt (1990) 20 NSWLR 114; (1990) 49 A Crim R 20

As to ground (iv), per Yehia J at [106] (Stern JA at [1] and Rothman J at [2] agreeing):

1. Ground (iii) of the appeal was made out therefore it was not necessary to consider Ground (iv).

   C v R [2022] NSWCCA 285

JUDGMENT

1. STERN JA: I agree with the orders proposed by Yehia J and with her Honour’s reasons for proposing those orders. Like Yehia J, I am satisfied that the sentencing judge erred but that no lesser head sentence is warranted. I am also satisfied that there should be a finding of special circumstances and that the non-parole period should be three years and nine months.

2. ROTHMAN J: I agree with Yehia J and the orders her Honour proposes. Whether or not a lesser sentence is warranted, I consider, quite independently, that 8 years and 8 months imprisonment is the appropriate starting point for the sentence. Allowing 25 per cent reduction for the plea of guilty at the earliest opportunity, I conclude that 6 years and 6 months is the appropriate head sentence.

3. I agree that a non-parole period of just over half, allowing an extended period of 33 months parole is appropriate. I am comforted in this approach as the only successful ground of appeal was the failure to provide adequate allowance for the special circumstances.

4. YEHIA J: The applicant, Peter Stephen Crane, seeks leave, under s 5(1)(c) of the Criminal Appeal Act 1912 (NSW), to appeal against the sentence imposed on him by Montgomery DCJ (“the sentencing judge”), in the District Court of New South Wales at Penrith on 16 August 2023.

5. The applicant entered a plea of guilty at Penrith Local Court to one count of aggravated dangerous driving occasioning death, contrary to s 52A(2) of the Crimes Act 1900 (NSW). The offence attracts a maximum penalty of 14 years imprisonment and there is no standard non-parole period applicable.

6. The element of aggravation relied upon by the Crown was driving at a speed in excess of 45 km/h above the posted limit at the time of the collision: s 52A(7)(b). While intoxication due to methylamphetamine was an aggravating circumstance relied upon by the Crown, it was not an element of aggravation as the evidence only established that the applicant was “significantly” impaired as opposed to “very substantially impaired”, as required by s 52A(7)(d).

7. The applicant was sentenced to 6 years and 6 months imprisonment, commencing on 10 February 2022 and expiring on 9 August (after a 25% discount for an early plea). The non-parole period imposed was 4 years and 6 months, to expire on 9 August 2026.

Notice of Appeal and the grounds of appeal

8. The applicant filed his Notice of Appeal against sentence on 20 February 2024. The grounds of appeal on which he seeks to rely are:

1. Ground 1: The sentencing judge erred in finding that the applicant’s ability to drive was “substantially, in a high level, affected” when the Crown had conceded that the element of aggravation pursuant to s 52A(7)(d) could not be made out on the evidence.

2. Ground 2: The sentencing judge erred in finding that there was no causal connection between the applicant’s mental health and the offending and/or failed to have regard to other relevant principles applicable to offenders suffering from mental health issues.

3. Ground 3: The sentencing judge erred as the finding of special circumstances was not given practical effect.

4. Ground 4: The overall term of imprisonment is manifestly excessive.

Remarks on Sentence

9. At the outset of the decision in R v Crane [2023] NSWDC 315 (“the remarks on sentence” or “ROS”), Montgomery DCJ (“the sentencing judge”) noted that the agreed element of aggravation pursuant s 52A(7) is that at the time of the collision, the applicant was driving at a speed in excess of 45 km/h above the posted limit, “but that his intoxication is an aggravating circumstance for consideration in the synthesis of sentencing.”

10. His Honour accepted that the applicant had suffered significant injuries in the collision and that following his release from hospital he was arrested and taken into police custody. At the time of sentence the applicant had spent 552 days in custody. The sentencing judge also noted that at the time of the offending, the applicant was subject to a Community Corrections Order (“CCO”).

11. The sentencing judge referred to the applicant’s driving record, itemising the applicant’s extensive convictions for driving related offences between 1998 and 2022. His Honour returned to the applicant’s criminal record later in the remarks on sentence, concluding that the applicant was not entitled to leniency.

12. His Honour set out the facts at [9]-[26] of the remarks on sentence. Late on 19 January 2022, at about 1:25am the applicant was driving a vehicle and the deceased was seated in the front passenger seat of that vehicle. At Wentworth Falls, as the vehicle approached a gentle right-hand bend in the road, it continued straight and the front-end collided with a concrete safety barrier. At the time of the collision, the applicant was travelling at 112 km/h. The posted speed limit was 60 km/h.

13. The brakes were activated approximately two seconds before impact. During those two seconds the vehicle decelerated sharply to the point of impact. At the time of the collision, it was raining lightly, streetlights were functioning and visibility was good. The parties agreed that the driving conditions did not contribute to the collision. Mechanical defects, roadway conditions and the environment at the time were also eliminated as contributing factors. The sole cause of the collision was the applicant’s driving.

14. The front of the vehicle was badly crushed. The passenger door was jammed closed. Airbags had been deployed. Police attended the scene. Upon speaking to the applicant, they observed that his eyes were heavy and he appeared to be affected by drugs. He was disorientated, drowsy, and barely maintaining consciousness. About 7 metres from the vehicle, police located a box containing used syringes and small clear resealable plastic bags (which were empty). Drug-taking paraphernalia was also found in the vehicle.

15. Police observed the passenger to be in a state of distress. She was also drowsy and would not open her eyes. She was lapsing in and out of consciousness. The applicant was concerned about his passenger’s welfare. He asked paramedics about her condition and was cooperative with them.

16. Paramedics assessed that the passenger had suffered significant internal injuries. En route to Nepean Hospital, due to the injuries, she became agitated and aggressive. She dislodged her cannula and went into cardiac arrest. She was pronounced life extinct at 3:55am. An autopsy was conducted on 25 January 2022 which determined that the multiple injuries sustained in the collision were the cause of death.

17. The applicant was conveyed to Nepean Hospital (and subsequently Lithgow Hospital). Analysis of his blood sample revealed that his bloodstream contained levels of amphetamine at 0.07 mg/L; methylamphetamine at 0.77 mg/L and morphine (free) at 0.008 mg/L. The presence of amphetamine was as a result of the metabolism of methylamphetamine in the offender’s liver and indicative of repeated use of methylamphetamine in the day or days prior to the collision.

18. Expert evidence certified that at the time of driving the applicant was under the influence of methylamphetamine “to the extent that his ability to drive was significantly impaired” and that that “the offender’s blood level of methylamphetamine [was] well into the reported toxic range and potentially fatal range, and [was] highly suggestive of recent use of the drug most likely within 12 hours of the blood sample.”

19. His Honour referred to the observations made of the offender after the collision, which were “consistent with the repeated use of methylamphetamine, as expected during a ‘run’ and the signs shown shortly after the collision indicate there to have been onset of significant rebound sedation due to methylamphetamine withdrawal.”

20. As a result of the injuries sustained in the collision, the applicant underwent three surgeries for fractures to both legs and an injury to one of his wrists. The applicant was arrested on 10 February 2022 following his release from Lithgow Hospital. He was restricted to a wheelchair due to his injuries. His Honour took into account the applicant’s injuries as a form of extra curial punishment. The sentencing judge also had regard to the applicant’s injuries, in determining that the applicant would suffer greater hardship in custody.

Objective Seriousness

21. The sentencing judge referred to the guideline judgment of R v Whyte (2002) 55 NSWLR 252; [2002] NSWCCA 343 (“Whyte”), noting that the present case involved an aggravated form of the offence contrary to s 52A(2) of the Crimes Act, which carries with it a maximum penalty of 14 years imprisonment. His Honour referred to the applicant’s “significant impairment due to methylamphetamine intoxication at the extremely high level of toxic and potentially fatal range” as a “significantly aggravating circumstance to be taken into account in accordance with that guideline judgment.”

22. In reference to the considerations set out in the guideline judgment, his Honour noted the following in the remarks on sentence at [27]:

1. Whilst the applicant drove in a high state of intoxication over two hours and over a substantial distance, there was no evidence of a deliberate, reckless manner of driving other than the evidence of excessive speed during approximately five seconds before impact.

2. The road was not quiet but it was a main regional arterial highway and approaching motorists were not far off.

3. The applicant was not young.

4. The applicant was not a person of good character.

5. The applicant’s criminal record disclosed a history of like offences including multiple breaches of the posted speed limit, excessive speed offences and driving whilst intoxicated.

6. The offence occurred while the applicant was subject to a CCO and while he was not licensed. Both of these matters were treated as aggravating factors.

23. The sentencing judge accepted that the applicant was “immediately deeply and genuinely remorseful”. His acceptance of responsibility was not contested.

24. In applying the non-exhaustive list of considerations set out in Whyte (at [216]-[218]), his Honour referred to the expert pharmacological evidence that the applicant was “significantly impaired” by a blood level of methylamphetamine at a “toxic range and potentially fatal range”, together with the observations made by police of the applicant soon after the collision. His Honour referred to the concession made on behalf of the applicant (at sentencing) that his driving was “substantially” affected.

25. The sentencing judge found, beyond reasonable doubt, that the driving was “substantially, in a high level, affected”, and that intoxication was a “significantly aggravating factor”. In observing that the applicant had driven for approximately two hours while so intoxicated, his Honour acknowledged that there was no evidence “of erratic or aggressive driving, competitive driving or showing off, escaping police pursuit, sleep deprivation or failing to stop.”

23. Given the aggravating factors (the applicant’s level of intoxication and the fact that he was on conditional liberty being of greatest aggravating effect), the sentencing judge assessed the objective seriousness of the offending as “above the mid-range”. That finding was consistent with the Crown’s submission and the defence’s concession, at first instance.

Subjective Case

27. Extracting the applicant’s subjective case from the Sentencing Assessment Report (“SAR”), his Honour noted the following in the remarks on sentence at [22]:

“• The offender lives alone in a Wentworth Housing Unit in Lithgow.

• The offender is supported by his mother and stepfather with whom he maintains regular telephone contact.

• The offender maintained regular employment until lastly employed as a coalminer in 2015.

• The offender is in receipt of the New Start Allowance.

• The offender’s offending shows an escalation in seriousness when compared with his earlier offending.

• The offender recognises that drug use and mental health are risk factors in his offending behaviours.

• (As the parties agree) The offender acknowledged responsibility for the incident and the death of Bonnie (his comment that she grabbed the steering wheel is agreed not to mean that she contributed to the collision).

• The offender acknowledged that his drug intake impaired his judgement resulting in him not recognising his driving was at a dangerous speed and that his decision to drive whilst intoxicated contributed to the loss of Bonnie’s life.

• The offender has a history of drug use since the age of 22 years and was using approximately half a gram of ice daily leading up to the offence.

• Drug dealing funded his drug use.

• On the night leading to the offence, he increased his intake and injected between two and three points of ice.

• The offender used ice to self-medicate and was not compliant with his mental health medication.

• The offender is responsive to the impact of his offending including displaying insight and concern for trauma suffered by Bonnie’s family due to the loss of her life as well as recognising the impact of his offending on his own family.

• The offender has been diagnosed with schizophrenia, post-traumatic stress disorder (“PTSD”) and attention deficit hyperactivity disorder (“ADHD”).

• One month prior to the offence the offender engaged with his mental health team regarding his concerns around his mental health. He reported experiencing auditory hallucinations through the television and radio.

• The offender acknowledged his need to comply with his mental health medication regime and his need to do so in order to remain stable in the community.

• Whilst in prison, through Justice Health he is receiving a depot injection and oral medication to treat his schizophrenia and PTSD.

• The offender is willing and able to undertake intervention if directed to do so by Community Corrections and willing and able to complete community service work.

• The offender’s performance had been unsatisfactory at times during earlier periods of supervision in the community by Community Corrections when subject to various orders including Community Corrections Orders, a s 9 Crimes (Sentencing Procedure) Act 1999 (NSW) (CSP Act) Act Good Behaviour Bond and Community Service Work.

• When compliant with the treatment regime for his mental health, the offender was “able to engage with Community Corrections satisfactorily”.

• The offender was assessed as of a Medium-High risk of reoffending.

• If subject to a supervision order, Community Corrections will supervise him at the T2 Medium-High supervision level of the Service Delivery Standards, pursuant to which he would be required to have weekly contact with a Community Corrections Officer.”

• The offender was assessed as suitable to undertake community service work and Community Corrections can provide the equivalent of up to 10 hours of work per month for him.”

28. The sentencing judge referred to important contextual material and past medical records tendered on behalf of the applicant (Exhibit 1), relating to the applicant’s mental health and illicit drug affected lifestyle. The medical records revealed the following at [23]:

“• On 28 March 2019, on examination at Lithgow Hospital Emergency, he was found to be mentally disordered, agitated, restless with paranoid thoughts of “doctors” (GP) are working with the police to stop me getting help”. He was assessed as suffering a drug induced psychosis and admitted as an Involuntary Inpatient to the Nepean Mental Health Centre, Nepean Hospital.

• On 12 January 2021, the offender’s mother contacted his treating psychiatrist, Associate Professor Gurr because he was showing disturbed behaviour consistent with his abusing ice again and he had left the family home after more than one year of abstinence from drugs. On 21 January 2021, Police and Ambulance attended the offender in the Aldi car park, Lithgow, he having texted his father that he was going to hang himself and following a previous suicide attempt. Lithgow Police caused him to be conveyed to Lithgow Hospital to be dealt with under the Mental Health Act 2007 (NSW), rather than in accordance with law. At hospital (Nepean Mental Health Unit) on 22 January 2021, it was recorded that his suicidal ideation included him having actually made a noose. He was assessed as “mentally disordered” for the purposes of the Mental Health Act2007.”

29. The sentencing judge’s findings as to the applicant’s mental health issues were further informed by the contents of the report of Ms Leesa Morris, forensic psychologist, and the report of Associate Professor Roger Gurr, consultant psychiatrist. The sentencing judge summarised the subjective material by itemising twenty pertinent features: ROS at [23(i)]-[23(xx)].

30. The sentencing judge accepted that the applicant was raised in a “rough family environment” within which he was exposed to physical violence at the hands of his stepfather. He left school following Year 10 and suffered from Attention Deficit Hyperactivity Disorder (“ADHD”) from a young age. His Honour acknowledged that such deprivations during childhood and adolescence had a continuing effect on the applicant “in regard to decision-making” and that in this case, compounding factors included the applicant’s diagnoses of Post-traumatic stress disorder (“PTSD”), schizophrenia and ADHD.

31. In addressing the applicant’s mental health issues, the sentencing judge concluded that the applicant’s mental health did not inform the offending in that “it was not a contributing cause of the offending”. His Honour did acknowledge the association between schizophrenia and methamphetamine addiction as being “well-known” and that such an association was indirectly relevant, concluding that “this is a life hardship, again, to some extent mitigating his subjective moral culpability for the offending.”

32. On the same point, the sentencing judge also referred to Associate Professor Gurr’s evidence that there was a “close association between [the applicant’s] diagnosis of schizophrenia and his abuse of the drug ice”, concluding that this was a “special circumstance of significance but not of great mitigating effect in the sentencing process.”

33. The sentencing judge found that the applicant’s schizophrenia, in combination with his other mental health ailments, would result in the applicant suffering greater hardship in custody, entitling the applicant to some mitigation of sentence “on account of that special circumstance.”

34. The sentencing judge found that the applicant’s prospects of rehabilitation should be “assessed as good while significantly guarded.” His Honour explained that in making that determination, he accepted that the applicant was motivated and wanted to rehabilitate but that he had been assessed as “at least a moderate if not a high risk of recidivism.”

35. The sentencing judge concluded that the applicant’s childhood deprivation reduced his moral culpability. With respect to special circumstances, his Honour was of the view that there should be an adjustment of the non-parole/parole ratio “to afford the offender the opportunity of reintegration into the community by way of compliance with an appropriate Mental Health Plan, abstinence from use of illicit substances and in the interests of the community, to afford him the opportunity of rehabilitation.”

36. The sentencing judge addressed the purposes of sentencing. The seriousness of the offending required adequate punishment and a sentence that would deter the applicant and other persons from committing dangerous driving offences, particularly whilst intoxicated. The sentence should not only denounce the offending conduct but also hold the applicant accountable for his offending, which caused the death of another human being. His Honour concluded that the sentence and “specifically the non-parole period” must be sufficient to protect the community from the applicant, recognising that the “parole period should promote his opportunity for rehabilitation.”

37. The sentencing judge did not reduce the weight to be afforded to general deterrence. In the context of addressing the considerations in Whyte, his Honour concluded that “general deterrence is a dominant factor on sentence, particularly because of the importance of deterring those who might choose to drive long distances at night at speed on a highway whilst substantially intoxicated.” The applicant was 39 years old at the time of the offending and was found to have a level of maturity and greater experience of life which provided him with a greater degree of appreciation of the risk he was taking (as compared to a younger offender).

38. The sentencing judge had regard to the Judicial Commission of NSW Judicial Information Research System Statistics (“JIRS Statistics”), noting the usual limitations that apply to such statistics. His Honour referred to four cases where offenders had been sentenced for an offence of aggravated dangerous driving causing death.

39. Following a review of these cases and the JIRS statistics, and applying a 25% discount for the early plea, the sentencing judge sentenced the applicant to 6 years and 6 months imprisonment with a non-parole period of 4 years and 6 months. The ratio imposed of 69% between the non-parole and parole periods, resulted in the reduction of the non-parole period by 4 months.

Ground 1

40. The essence of the complaint in Ground 1, is that the sentencing judge conflated the circumstance of aggravation (as referred to in Whyte) with the element of aggravation pursuant to s 52A(7)(d), thereby erring in the proper consideration of the non-elemental aggravating feature of “significant impairment” that applied.

41. The applicant submitted that by finding that the applicant’s driving was “substantially, in a high level, affected” by his level of intoxication, his Honour left no room for an impairment of a higher level than that provided for pursuant to s 52A(7)(d).

42. In relation to this ground, the Crown submitted that the sentencing judge’s language does not amount to a holding that impermissibly applies a circumstance of aggravation which was not open on the evidence. The sentencing judge’s various descriptions of the level and effect of intoxication did not miscategorise the statutory element of the offence or overemphasise the intoxication of the applicant.

Determination

43. The offence for which the applicant was sentenced was the aggravated form of an offence of dangerous driving occasioning death. Section 52A of the Crimes Act relevantly provides:

52A Dangerous driving: substantive matters

(1) Dangerous driving occasioning death A person is guilty of the offence of dangerous driving occasioning death if the vehicle driven by the person is involved in an impact occasioning the death of another person and the driver was, at the time of the impact, driving the vehicle—

(a) under the influence of intoxicating liquor or of a drug, or

(b) at a speed dangerous to another person or persons, or

(c) in a manner dangerous to another person or persons.

A person convicted of an offence under this subsection is liable to imprisonment for 10 years.

(2) Aggravated dangerous driving occasioning death A person is guilty of the offence of aggravated dangerous driving occasioning death if the person commits the offence of dangerous driving occasioning death in circumstances of aggravation. A person convicted of an offence under this subsection is liable to imprisonment for 14 years.

…

(7) Circumstances of aggravation In this section, circumstances of aggravation means any circumstances at the time of the impact occasioning death or grievous bodily harm in which—

…

(b) the accused was driving the vehicle concerned on a road at a speed that exceeded, by more than 45 kilometres per hour, the speed limit (if any) applicable to that length of road, or

...

(d) the accused’s ability to drive was very substantially impaired by the fact that the accused was under the influence of a drug (other than intoxicating liquor) or a combination of drugs (whether or not intoxicating liquor was part of that combination).

44. It was not in dispute that the applicant, at the time of driving, was under the influence of methylamphetamine to the extent that his “ability to drive was significantly impaired” and that “the offender’s blood level of methylamphetamine [was] well into the reported toxic range and potentially fatal range, and [was] highly suggestive of recent use of the drug most likely within 12 hours of the blood sample.” Nor was it in dispute that following the collision, police made observations of the applicant that were “consistent with the repeated use of methylamphetamine, as expected during a ‘run’ and of significant rebound sedation due to methylamphetamine withdrawal.”

45. At the commencement of the sentencing proceedings, the Crown clarified that only one circumstance of aggravation was available as an element of aggravation, namely that the applicant was driving the vehicle at a speed that exceeded the posted speed limit by more than 45 km/h.

46. The expert evidence established that the applicant’s driving was “significantly impaired”, and as such fell short of the element of aggravation under s 52A(7)(d) which requires that the accused’s ability to drive was “very substantially impaired” by the fact that the offender was under the influence of a drug or a combination of drugs. As a result, the prosecution could not rely upon intoxication as an element of aggravation, a matter that was made abundantly clear at the outset of the sentencing proceedings.

47. The prosecution, in submitting that the offence fell above the mid-range of objective seriousness for offences of this type, relied upon the evidence that the applicant’s driving was significantly impaired by his intoxication. Counsel appearing for the applicant at first instance, conceded that the objective seriousness of the offence fell above the mid-range because “of the aggravating fact that the offender was under the influence of methylamphetamine additional to the speed”. Counsel submitted that the description that the level of toxicity in the offender’s bloodstream was “almost to a lethal range”, said little about the actual effect on his driving. However, Counsel conceded that the level of the applicant’s intoxication did affect his driving “substantially”.

48. In Whyte, this Court held that s 37A of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“CSPA”), empowered the Court to give a judgment which contains guidelines to be taken into account by sentencing judges: Whyte at [63]-[65]. Several factors were identified as constituting a “typical case” of an offence of dangerous driving causing death or bodily harm contrary to s 52A of the Crimes Act: Whyte at [204], [228]. Several aggravating factors were identified including an individual’s degree of intoxication or substance abuse: Whyte at [216]-[218].

49. This Court promulgated the guideline that in a “typical case” where the offender’s moral culpability is high, a full-time custodial head sentence of less than 3 years (in the case of death) and 2 years (in the case of grievous bodily harm) would not generally be appropriate: Whyte at [229]. In the case of the aggravated version of each offence under s 52A, an appropriate increment to reflect the higher maximum penalty (14 years) and what will generally be a higher level of moral culpability, is required: Whyte at [231].

50. The applicant’s degree of intoxication was a relevant consideration in determining whether, and to what extent, his intoxication operated as an aggravating factor: Whyte at [216]. In the remarks on sentence, the sentencing judge considered the issue of intoxication on several occasions: ROS at [2], [25], [27], [29], [34], [37].

51. First, the sentencing judge distinguished between excessive speed as an element of aggravation and the applicant’s degree of intoxication as an aggravating circumstance at [2]:

“The parties agreed that the element of aggravation (s52A(7) Crimes Act 1900 (NSW) is that the time of collision the offender was driving at a speed in excess of 45 km/h above the posted limit but that his intoxication is an aggravating circumstance for consideration the synthesis of sentencing.” (Emphasis added.)

52. Second, in referring to the guideline judgment, and the statutory aggravation based on speed alone, the sentencing judge said at [27]:

“…In addition, the parties agree that the offender’s significant impairment due to methylamphetamine intoxication at the extremely high level of toxic and potentially fatal range, is a significantly aggravating circumstance to be taken into account in accordance with that guideline judgement…. (Emphasis added).”

53. Third, the sentencing judge referred to the applicant’s state of intoxication in the context of excluding additional aggravating circumstances at [27]:

“Whilst the offender drove in a high state of intoxication over two hours and over a substantial distance, there is no evidence of deliberate, reckless manner of driving other than, and the evidence of excessive speed is, during approximately five seconds before impact.” (Emphasis added.)

54. Fourth, the sentencing judge referred to the applicant’s degree of intoxication in addressing the importance of general deterrence at [29]:

“…general deterrence is a dominant factor on sentence, particularly because of the importance of deterring those who might choose to drive long distances at night at speed on a highway whilst substantially intoxicated….”

55. Fifth, in referring to the expert pharmacological evidence, the sentencing judge said at [34]:

“The defence presses that there is no specific evidence, including expert evidence, of the level of contribution by effect of his driving with that intoxication, but concedes that his driving was substantially affected. In my opinion, that evidence, beyond reasonable doubt infers that his driving was substantially, in a high level, affected. In my opinion that inference is consistent with his having hit a concrete barrier in a situation of only a gentle right-hand bend, in the absence of environmental or mechanical contributing factors and his being unable to recall the course of his driving leading up to the collision. Intoxication was a significantly aggravating factor. That said, and again returning to the frequently recurring facts observed in R v Whyte which should be identified as aggravating features, I acknowledge there is no evidence of erratic or aggressive driving, competitive driving or showing off, escaping police pursuit, sleep deprivation of failing to stop; however, as I have already stated, the offender had driven for approximately two hours while so intoxicated and that is an aggravating factor.”

56. Sixth, the sentencing judge, in the context of identifying the objective seriousness of the offence as being above the middle of the range, said at [37]:

“…Of greatest aggravating effects are that the offending occurred whilst the offender was subject to a reconnaissance, and that he was so highly intoxicated. The offender’s antecedent criminal and driving history disentitles him to leniency which might have mitigated the sentence of a “typical” offender as identified in R v Whyte (that being a person of good character). Further, his extreme level of intoxication, with which, despite his experience of life, he chose to drive a long journey on a major highway; resulted in him suffering a sedative affect during which he reached a speed of 54 km/h above the posted speed limit and lost control of the vehicle without contribution of anything but his choice to drive intoxicated to appoint of a toxic and potentially fatal range.”

57. Remarks on sentence should be read as a whole, without engaging in an unduly critical analysis or minute scrutiny in search of error: Hawat v R [2020] NSWCCA 121 at [32] per R A Hulme J (Fagan J and Hidden AJ agreeing) citing Tuncbilek v R [2020] NSWCCA 30 at [57] per Johnson J (Meagher JA agreeing) and Grant v R [2014] NSWCCA 67 at [38] per Leeming JA, N Adams and Hall JJ (see also Foaiaulima v R [2020] NSWCCA 270; 285 A Crim R 222 at [38] per Bathurst CJ). The sentencing judge was clear in differentiating between the nominated statutory aggravation (speed) and the aggravating circumstance (intoxication). His Honour’s various descriptions of the degree and effect of intoxication were made in the context of addressing the relevant aggravating factors identified in Whyte, and, when read as a whole, did not refer to intoxication as an element of statutory aggravation.

58. The factual characterisation that the intoxication had “substantially impaired” the applicant, was conceded during the sentencing proceedings. His Honour clearly addressed the factors informing his assessment of objective seriousness, which was identified as above the mid-range, an assessment with which both parties agreed.

59. I am not persuaded that the sentencing judge conflated the concept of statutory aggravation and intoxication as an aggravating factor (as referred to in Whyte).

60. Ground 1 is not made out.

Ground 2

61. Ground 2 asserts that the sentencing judge erred in finding that there was no causal connection between the applicant’s mental health and the offending and/or failed to have regard to other relevant principles applicable to offenders suffering from mental health issues. During the course of oral submissions in this Court, the applicant further particularised ground 2 to rely more specifically on the sentencing judge’s failure to refer to the applicant’s ADHD and PTSD when considering whether a causal connection existed between the applicant’s mental health and the offending.

62. The applicant submitted that the evidence established an interconnection between his untreated psychological conditions of complex PTSD, ADHD and his drug issues such that his addiction was “not a matter of personal choice but attributable to underlying mental health and trauma and the abuse of substances at a very young age when the ability to exercise appropriate judgment and choice was incomplete.”

63. The applicant submitted that the sentencing judge’s failure to find a “causal connection” between the applicant’s mental health and the offending resulted in error, as did the sentencing judge’s failure to reduce the weight afforded to deterrence, retribution, and denunciation, by reason of the applicant’s mental health conditions.

64. The Crown submitted that the mental health of the applicant was in fact considered to have mitigated the applicant’s “subjective moral culpability”. The Crown submitted that this was a generous finding having regard to the lack of connection between the applicant’s mental health issues and the offending. Although it is accepted that the applicant suffered from diagnosed mental illnesses, the Crown relied on the absence of expert evidence as to any connection between the mental illnesses and the offending.

65. Furthermore, the Crown submitted that this point was not raised at the proceedings on sentence. Had the contention that there was a causal connection been raised at first instance, it could have resulted in submissions being made, cross-examination of the experts, or evidence being called by the respondent.

66. The Crown, at first instance, submitted that there was no link between the applicant’s mental health conditions and the offending conduct such as to reduce the applicant’s moral culpability or render him an inappropriate vehicle for general deterrence. During an oral exchange between the sentencing judge and the Crown, his Honour raised the “well known fact” of “the association of schizophrenia with methamphetamine addiction”. The Crown accepted that this was a matter that the sentencing judge could take into account in making a finding of special circumstances.

67. Written submissions filed on behalf of the applicant at first instance (MFI 2), were silent on the topic of how the applicant’s mental health conditions impacted upon the proportionate sentence. Nor were there any oral submissions made about a causal connection between the applicant’s mental health impairments and the offending conduct. The sentencing judge was provided with no assistance on the subject from defence counsel.

Determination

68. The ways in which mental illnesses and impairments may impact on the exercise of the sentencing discretion, have been considered in many previous cases. The relevant principles were summarised by McClellan CJ at CL in DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [177]:

“Where an offender is suffering from a mental illness, intellectual handicap or other mental problems the courts have developed principles to be applied when sentencing: see, for example, R v Engert (1995) 84 A Crim R 67; R v Tsiarias [1996] 1 VR 398 at 400; R v Fahda [1999] NSWCCA 267 at [40]–[48]; Lauritsen v The Queen (2000) 22 WAR 442 at [43]–[51]; R v Harb [2001] NSWCCA 249 at [35]–[45]; R v Israil [2002] NSWCCA 255; R v Hemsley [2004] NSWCCA 228 at [33]–[36]; R v Verdins (2007) 16 VR 269 at [32]; Courtney v The Queen [2007] NSWCCA 195; (2007) 172 A Crim R 371 at [14]–[18]; and R v Henry [2007] NSWCCA 90 at [28]. They can be summarised in the following manner:

• Where the state of a person's mental health contributes to the commission of the offence in a material way; the offender's moral culpability may be reduced. Consequently the need to denounce the crime may be reduced with a reduction in the sentence: R v Henry (1999) 46 NSWLR 346 at [254]; Miller v The Queen [1999] WASCA 66 at [23]; R v Jiminez [1999] NSWCCA 7 at [23], [25]; R v Tsiarias (at 400); Lauritsen (at [51]); R v Israil (at [23]); R v Pearson [2004] NSWCCA 129 at [43]; R v Henry (2007) (at [28]).

• It may also have the consequence that an offender is an inappropriate vehicle for general deterrence resulting in a reduction in the sentence which would otherwise have been imposed: R v Engert (at 71); R v Wright (1997) 93 A Crim R 48 at 50–51; R v Israil (at [22]); R v Pearson (at [42]); R v Henry (2007) (at [28]).

• It may mean that a custodial sentence may weigh more heavily on the person. Because the sentence will be more onerous for that person the length of the prison term or the conditions under which it is served may be reduced: R v Tsiarias (at 400); R v Jiminez (at [25]); R v Israil (at [26]); R v Henry (2007) (at [28]).

• It may reduce or eliminate the significance of specific deterrence: Courtney (at [14]); R v Tsiarias (at 400); R v Israil (at [25]); R v JW (at [192]).

• Conversely, it may be that because of a person's mental illness, they present more of a danger to the community. In those circumstances, considerations of specific deterrence may result in an increased sentence: R v Israil (at [24]); R v Henry (2007) (at [28]). Where a person has been diagnosed with an Antisocial Personality Disorder there may be a particular need to give consideration to the protection of the public: R v Lawrence [2005] NSWCCA 91 per Spigelman CJ (at [23]–[24]).”

69. An offender does not need to demonstrate that his actions were beyond his control or that he had no understanding of what he was doing. Rather, the question is whether an offender has established, on the balance of probabilities, that his mental health conditions played a role, in some material way, in his offending conduct: DC v R [2023] NSWCCA 82 (“DC”) at [74] per Yehia J (Rothman and Wilson JJ agreeing).

70. The sentencing task should not be approached in “an unduly technical or restrictive way”: Luque v R [2017] NSWCCA 226 at [114] per Hamill J; Carl v R [2023] NSWCCA 190 at [48] per Yehia J (Weinstein J agreeing); DC at [75] per Yehia J (Rothman and Wilson JJ agreeing). Nor should a sentencing judge approach the task as though deciding the issue of causation in a civil case. Where the mental illness or impairment explains or sheds light on the offending conduct in some material way, an offender’s moral culpability may be reduced, and the weight afforded to denunciation and deterrence may be lessened.

71. The observations made by Button J (Basten JA and Davies J agreeing) in Moiler v R [2021] NSWCCA 73 at [59], are apposite:

“It is well known that the assessment of the extent of a mental condition, its causative connection (if any) with offending and any concomitant reduction in moral culpability and sentence to be imposed are all very much a matter for a sentencing judge: Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [177]. Even so, in my opinion care should be taken not to take too prescriptive an approach, in a process of instinctive synthesis, whereby mitigating features such as mental illness or cognitive impairment are thought to require establishment as the direct or precipitating cause of an offence before they can operate to reduce the appropriate sentence. It is noteworthy that the first dot point of that oft-quoted paragraph speaks of material contribution to the offending, not singular or direct causation of it”.”

72. An assessment of whether a person’s mental health conditions contributed, in a material way, to their offending, requires a nuanced analysis of the evidence. A sentencing judge should not become preoccupied with the issue of “causation” as a technical matter: Ryan v R [2017] NSWCCA 209 at [15] per Hamill J (Leeming JA and Button J agreeing); DC at [72] per Yehia J (Rothman and Wilson JJ agreeing). The question is not whether there is a “causal link” between the mental health condition and the offending, but whether the mental illness or intellectual impairment materially contributed to, either directly or indirectly, the offending conduct.

73. The sentencing judge accepted that the applicant was diagnosed with ADHD at the age of 12. The applicant reported that his attention and behavioural issues began in primary school and included being “distracted”’, having “difficulty sitting still” and “fidgeting”.

74. The applicant commenced drinking alcohol at the age of 12, increasing to regular consumption at 16 years of age. The applicant started swapping alcohol for drugs “because of the hangovers” at about the age of 21. He used “ecstasy and speed mostly” until they became less available, transitioning to crystal methamphetamine when he was between 32 and 33 years of age, after the birth of his daughter.

75. The applicant’s biological father was diagnosed with ADHD as well as dyslexia and alcoholism. The applicant described a “challenging” childhood where he was punished with increasingly violent means in an effort to control his behaviour. In addition to his ADHD, the applicant was diagnosed as suffering from complex PTSD. He was also diagnosed with schizophrenia between 2018 and 2019.

76. In summarising the applicant’s subjective case, the sentencing judge acknowledged the applicant’s diagnoses of schizophrenia, PTSD and ADHD. His Honour extracted a portion of the report of forensic psychologist, Ms Morris, in which she stated:

“Mr Crane presents as an insightful man who has good understanding of the part that led him to his current circumstances. He has pre-existing untreated psychological conditions of complex post-traumatic stress disorder and attention deficit/hyperactivity disorder. The behaviours associated with the latter were met with physical abuse, leading to the former, which was added to by the motor vehicle accident. Largely as a result of his unaddressed psychological and substance use issues, Mr Crane is considered to be at moderate risk of reoffending.”

77. With respect to the applicant’s mental health conditions, the sentencing judge concluded at [39]:

“Whilst his mental health did not inform the offending in that it was not a contributing cause to the offending; indirectly and is recognised by the Crown during submissions, the association between schizophrenia and methamphetamine addiction is well known. This is a life hardship, again, to some extent mitigating his subjective moral culpability for the offending.”

78. The sentencing judge referred to the report of Associate Professor Gurr in which he opined that there was “a close association between [the applicant’s] diagnosis of schizophrenia and his abuse of the drug ice”. His Honour considered this to be a “circumstance of significance but not of great mitigating effect in the sentencing process.”

79. The sentencing judge was satisfied the applicant’s ongoing schizophrenia, in combination with “those mental health ailments” would result “in him suffering greater hardship than a normal prisoner during incarceration.” His Honour concluded that the applicant “is entitled to some mitigation of sentence on account of that special circumstance.”

80. Neither report directly addressed the issue of whether the applicant’s mental health conditions materially contributed to the offending conduct. Ms Morris concluded her report by stating:

“Mr Crane presented as an open and reflective man who has good insight into his psychological functioning. He described the challenge in childhood which has impacted him psychologically through his life. Mr Crane details a common story of the neuro divergent child who is considered ‘bad’ and punished with increasingly violent means in an effort to control his behaviour. Without surprise, Mr Crane has sought means to psychologically absent himself from a traumatic environment through substances until he was able to physically do so. Despite this, Mr Crane’s criminal and employment history has demonstrated some considerable prosocial engagement despite is substance use and untreated trauma.”

81. The evidence suggests a connection between the applicant’s background and the onset of PTSD. There is also a suggestion of a connection between the applicant’s substance abuse as a way to “psychologically absent himself” from a traumatic environment. However, it is unclear on the evidence as to how the interplay between the applicant’s mental health conditions and his substance abuse, materially contributed to the offence.

82. Although the applicant’s degree of intoxication was found to be an aggravating circumstance of some substance, the element of statutory aggravation is the excessive speed at which the applicant was driving. It was entirely open to the sentencing judge to find that the applicant’s mental health conditions did not materially contribute to the offending conduct.

83. However, it must be observed that notwithstanding the absence of any submissions by the applicant’s counsel, the sentencing judge did find an indirect link, in light of the association between schizophrenia and methamphetamine addiction which his Honour regarded as “well-known”, and concluded that “this life hardship” mitigated, “to some extent” the applicant’s subjective moral culpability for the offending. The sentencing judge determined that whilst the close association between the applicant’s diagnosis of schizophrenia and his abuse of the drug “ice” was a special circumstance of significance, it did not have great mitigating effect in the sentencing process.

84. The sentencing judge did turn his mind to the issue of whether the applicant’s mental health conditions materially contributed to the offending. His Honour was alive to the association between schizophrenia and methamphetamine addiction and by reason of that “life hardship”, the applicant’s subjective moral culpability for the offending was mitigated “to some extent”.

85. I am not persuaded that his Honour erred in finding that the applicant’s mental health conditions were not a contributing cause of the offending. Equally, I am not persuaded that the sentencing judge erred in failing to refer to the applicant’s diagnoses of ADHD and PTSD explicitly, in determining whether those mental health ailments materially contributed to the offending such as to reduce the applicant’s moral culpability.

86. His Honour did have regard to the applicant’s mental health conditions in determining that the applicant would “suffer greater hardship than a normal prisoner during incarceration… entitling [him] to some mitigation of sentence on account of that special circumstance”.

87. The sentencing judge considered and determined the weight to be afforded to general deterrence. His Honour’s findings that general deterrence was important was informed by the public dangerousness of the offence, particularly “because of the importance of deterring those who might choose to drive long distances at night at speed on a highway whilst substantially intoxicated”. It was open to his Honour not to reduce the weight afforded to general deterrence, denunciation, and retribution, given the seriousness of the offence.

88. Ground 2 is not made out.

Ground 3

89. The sentencing judge made a finding of special circumstances. The ratio imposed was 69%, resulting in a reduction in the non-parole period of only 4 months. The applicant submitted that the sentencing judge erred in failing to give any practical effect to the finding of special circumstances.

90. The Crown submitted that the minimum term was well open as was the nominated variation of the statutory ratio. The quantification of the reduction takes into account all the elements of punishment, including the objective seriousness of the offence: R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534 at [65] per Spigelman CJ (Mason P, Grove, Sully JJ and Newman AJ agreeing); R v Ferguson [2022] NSWCCA 147 at [97] per R A Hulme J at [97] (Ward P and Bellew J agreeing); Khorami v R; R v Khorami [2021] NSWCCA 228 at [419] per Johnson J.

Determination

91. Section 44(1) of the CSPA requires the Court to first set a non-parole period for a sentence when sentencing an offender to imprisonment (unless imposing an aggregate sentence of imprisonment). With respect to “special circumstances”, ss 44(2) and (2B) relevantly provide:

44 Court to set non-parole period

…

(2) The balance of the term of the sentence must not exceed one-third of the non-parole period for the sentence, unless the court decides that there are special circumstances for it being more (in which case the court must make a record of its reasons for that decision).

…

(2B) The term of the sentence that will remain to be served after the non-parole period set for the aggregate sentence of imprisonment is served must not exceed one-third of the non-parole period, unless the court decides that there are special circumstances for it being more (in which case the court must make a record of its reasons for that decision).

…

92. The relevant principles pertaining to finding “special circumstances” were restated in MD v R [2015] NSWCCA 37 by Gleeson JA (Johnson and Hall JJ agreeing) at [38]-[42]:

“[38] The principles applicable to the setting of the non-parole period of a sentence under s 44 of the Sentencing Act are well settled. A non-exhaustive statement of principles may be found in Caristo v R [2011] NSWCCA 7 at [26]-[31] (R A Hulme J; Giles JA and Adams J agreeing). Three matters are of particular relevance in the present case.

[39] First, the non-parole period is the minimum period of actual incarceration that the offender must spend in custody having regard to all the elements of punishment, including rehabilitation, the objective seriousness of the offence and the offender’s subjective circumstances: Power v R [1974] HCA 26; 131 CLR 623 at 627-629; R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 at [59]; R v Cramp [2004] NSWCCA 264 at [34].

[40] Secondly, simply because there are circumstances which are capable of constituting special circumstances, does not compel the Court to make such a finding and reduce the non-parole period: R v Fidow [2004] NSWCCA 172 at [22]. The decision to find special circumstances is first, one of fact, to identify the circumstances and secondly, one of judgment, to determine that those circumstances justify a lowering of the non-parole period below the statutory ratio: R v Simpson at [73]. The degree or extent of any adjustment of the “statutory ratio” is a matter for the discretion of the sentencing judge: R v Cramp at [31]; Trad v R [2009] NSWCCA 56; 194 A Crim R 20 at [33].

[41] Thirdly, in setting an effective a non-parole period for more than one offence the focus should not be solely upon the percentage proportions that the non-parole and parole periods bear to the total term: “the actual periods involved are equally, and probably more, important” (Caristo v R at 42 (R A Hulme J)).

[42] Generally speaking where this Court has intervened, it has usually been the case that the sentencing judge has not given effect to a finding of special circumstances through inadvertence or miscalculation. Examples can be found in the cases collected by McClellan CJ at CL in Fina’i v R [2006] NSWCCA 134 at [31]-[40].”

93. No challenge was made on this appeal to the principle, previously enunciated in decisions of this Court, that even where special circumstances exist, a sentencing judge is not obliged to alter the ratio of the non-parole period to the head sentence: R v Fidow [2004] NSWCCA 172 at [22] per Spigelman CJ (Hulme and Adams JJ agreeing); R v Pickard [2023] NSWCCA 7 at [73] per N Adams J (Garling and Adamson JJ agreeing).

94. This appeal does not therefore provide the occasion to revisit the reasoning underpinning this principle. It is sufficient to state that a failure to give practical effect to the finding of special circumstances, may constitute error: Sevastopoulos v R [2011] NSWCCA 201 at [77], [86] per Hall J (Tobias AJA and Johnson J agreeing); El-Ahmad v R [2015] NSWCCA 65 at [49]-[51] per R A Hulme J (Beazley P and Adamson J agreeing); Woods v R [2020] NSWCCA 219 at [71] per Wright J (Bathurst CJ and Garling J agreeing).

95. Where a finding of special circumstances is made, but the sentencing judge declines to vary the statutory ratio, or applies only a modest downward adjustment, that decision should be accompanied by reasons: CM v R [2013] NSWCCA 341 at [39]-[40] per R A Hulme J. Tinkering with the non-parole period risks making a “mockery of a finding of special circumstances” in response to the need for extended supervision and counselling: R v Sutton [2004] NSWCCA 225 at [30] per Howie J (Studdert and Dunford JJ agreeing).

96. In AM v R [2020] NSWCCA 101, it was held that there was an error in the absence of any explanation given, for a very modest reduction in the non-parole period. The applicant in AM appealed against an aggregate sentence of 8 years and 3 months imprisonment with a non-parole period of 6 years. The sentencing judge found special circumstances, warranting a departure from the statutory ratio between the parole and the non-parole period, relying on several factors, including the applicant’s youth, the fact that it was his first time in custody, accumulation, and the need for assistance and treatment in the community.

97. The sentencing judge in AM initially specified a non-parole period of 6 years and 2 months which was almost exactly 75% of the head sentence. Upon reflection, the sentencing judge announced his intention to specify the non-parole period as 6 years. As a result, there was a downwards adjustment of the non-parole period by 9 weeks.

98. With respect to the reduction of the statutory ratio by only 9 weeks, this Court concluded that such a reduction was of little utility and the sentencing discretion had miscarried: AM at [26]-[29].

99. In R v Moffitt (1990) 20 NSWLR 114; (1990) 49 A Crim R 20, the Court had occasion to deal with the scope of the considerations relevant for the purpose of deciding whether the statutory ratio should be varied. It was in that context that Samuels JA observed, at [115]-[116]:

“It is unnecessary to attempt a comprehensive definition of special circumstances; but the general character and scope of the phrase is determined by the statutory context of both language and purpose in which it appears. It must be assumed that s 5 has the rehabilitative purpose (affirmed by Pt 3 of the Act) generally perceived to be advanced by a system of release on parole; and regards it as adequately achieved in the ordinary course by setting the period during which a sentence may be served on parole at no more than one-third of the preceding period of incarceration to be served for the same offence. This relationship is the statutory norm which may be varied if the court decides there are special circumstances. “Special circumstances” must therefore include those circumstances, particular to the prisoner, which justify increasing the statutory proportion which the additional term bears to the minimum term. The purpose of parole being rehabilitative, any extension of that part of a sentence to be served on parole (the additional term) by increasing the time during which the support and supervision of the parole system is available, must be designed to benefit the prisoner. It follows that special circumstances must mean those circum­stances which justify enlarging in the prisoner's favour the existing rehabilitative purpose of s 5.” (Emphasis added).

100. The rehabilitation of an offender is not the sole consideration in fixing a non-parole period. The non-parole period must reflect the minimum period an offender must spend in custody to reflect the objective seriousness of an offence and the various purposes of sentencing. However, where a finding of special circumstances is made, at least in part, in reliance on the need for extended rehabilitation, any variation to the statutory ratio should meaningfully reflect the period of parole required to sufficiently address that rehabilitation.

101. In the present case, the sentencing judge made a finding of special circumstances justifying an adjustment of the non-parole/parole ratio to “afford the offender the opportunity of reintegration into the community by way of compliance with an appropriate Mental Health Plan, abstinence from use of illicit substances and in the interests of the community, to afford him the opportunity of rehabilitation.” In addition (and although not specifically referred to in the context of a finding of special circumstances), the sentencing judge had acknowledged that this was the applicant’s “first experience with full-time incarceration.”

102. Although the sentencing judge made a finding that the applicant’s prospects of rehabilitation were “significantly guarded”, having regard to the assessment of the applicant’s risk of recidivism made by the author of the SAR and by Ms Morris, his Honour found that the applicant was motivated to rehabilitate, finding that the applicant “held motivation to change his lifestyle from the drug abusing and mental health complicated circumstances which led to the subject offending and which lifestyle is reflected in his antecedent criminal history.”

103. In light of the applicant’s complex psychological and psychiatric profile and his long-standing substance abuse, the sentencing judge clearly intended that the parole period “should promote his opportunity for rehabilitation.” However, that intention was not given practical effect. The modest reduction of the non-parole period by 4 months resulted in a period of parole of only 2 years.

104. There was no explanation by the sentencing judge as to why, having found special circumstances, at least in part to afford the applicant the opportunity of rehabilitation, there was only a modest downward adjustment in the non-parole period. The variation here, was so small that it did not give practical effect to the finding of special circumstances.

105. Accordingly, I would uphold Ground 3. Error having been established, it is necessary to resentence the applicant unless, in the separate and independent exercise of my discretion, I conclude that no different sentence should be passed: Kentwell v R (2014) 252 CLR 601; [2014] HCA 37 at [35] per French CJ, Hayne, Bell and Keane JJ; Young (a pseudonym) v R [2021] NSWCCA 163 at [88]-[95] per Beech-Jones J (Basten J agreeing).

Ground 4

106. In addition to alleging error on the part of the sentencing judge, the applicant also contended that the sentence imposed was manifestly excessive. As I have decided to uphold Ground 3, which calls for the resentencing exercise to which I have just referred, it is not necessary to deal with Ground 4: C v R [2022] NSWCCA 285 at [67] per Mitchelmore JA (Bell CJ at CL and Yehia J agreeing).

107. In resentencing the applicant, I have had regard to the submissions made in support of Ground 4, the JIRS statistics and the comparative cases referred to by the sentencing judge.

Resentence

108. The applicant’s affidavit, affirmed on 9 April 2024, was read on the usual basis and without objection. I have made reference to the content of that affidavit where relevant below.

109. For the purpose of resentencing, I adopt the factual findings of the sentencing judge, together with the assessment of objective seriousness, which I have outlined above and to which no challenge was made. This was a serious offence involving the element of statutory aggravation, namely driving in excess of 45 km/h above the posted speed limit, and the circumstance of aggravation (as referred to in Whyte) of intoxication.

110. The applicant has numerous previous convictions for exceeding the posted speed limit and driving whilst intoxicated. His criminal and traffic record disentitles him to leniency. I have had regard to the aggravating factors that the applicant was subject to a CCO at the time of the offending and was driving whilst his license was suspended.

111. In relation to the applicant’s subjective case, in addition to the affidavit read in this Court, I have viewed the evidence that was before the sentencing judge. I have summarised the applicant’s subjective case above. I adopt the findings made by the sentencing judge that the association between the applicant’s schizophrenia and methylamphetamine addiction mitigates his moral culpability for the offending but not to a great extent.

112. The applicant is remorseful and has accepted responsibility for his actions. I accept, as the sentencing judge did, that the applicant has good prospects of rehabilitation in that he is genuinely motivated to rehabilitate. However, I acknowledge that he has been assessed by the author of the SAR as being at a medium-high risk of reoffending and assessed by Ms Morris as being at a moderate risk of reoffending.

113. The applicant deposes that when he first entered custody, he was moved to Long Bay Hospital where he remained for five months for treatment of his mental health conditions. He is currently being treated for schizophrenia and PTSD. The applicant is medicated for his schizophrenia with Paliperidone and receives 100g of that medication by depot injection once a month. The applicant is stable on his medication and feels more settled. He has had limited contact with family members but receives AVL calls from his mother and 10-year-old daughter.

114. I have had regard to the purposes of sentencing that are identified in s 3A of the CSPA. I am not persuaded that the applicant’s mental health conditions operate to reduce the weight to be afforded to deterrence, denunciation and retribution. I have come to that view because the danger to the public constituted by the applicant’s driving was of a high order. The total sentence must denounce the offending conduct and deter other like-minded offenders from driving at an excessive speed whilst intoxicated.

115. The JIRS statistics, upon which reliance is placed, reveal that 28.6% of offenders (irrespective of plea) received a higher total sentence than the applicant and 21.3% received a higher non-parole period. Reliance upon these statistics is not capable of establishing a benchmark with which to measure consistency for sentencing purposes. As was explained in Hili v R (2010) 242 CLR 250; [2010] HCA 45 at [55] (citing Wong v R (2001) 207 CLR 584; [2001] HCA 64 at [59]) the “production of bare statistics about sentences that have been passed tells the judge who is about to pass sentence on an offender very little that is useful if the sentencing judge is not also told why those sentences are fixed as they are.”

116. The applicant committed a serious offence of aggravated dangerous driving. The extent of the danger posed to the public was high. Not only was the applicant driving the vehicle at a speed that exceeded, by more than 45 km/h the posted speed limit (the statutory element of aggravation), he was driving whilst intoxicated (a circumstance of aggravation). The applicant was also subject to conditional liberty at the time of offending. The objective seriousness of the offence was rightly assessed as above the middle of the range. Notwithstanding the applicant’s subjective case, the head sentence of 6 years and 6 months is within the range of appropriate sentences.

117. In making that determination I have had regard to the “comparable cases” to which reference was made by the sentencing judge and which were either distinguished or relied upon during the appeal.

118. In Norouzi v R [2020] NSWCCA 237, the applicant’s appeal against severity of sentence was dismissed. The applicant in that case received a discount of 20% for the plea of guilty. The applicant was driving in excess of the posted speed limit and had a blood alcohol concentration of 0.0666. Cannabis was also detected in his blood. The offending was assessed as above the mid-range. He was sentenced to 6 years and 4 months imprisonment with a non-parole period of 4 years and 6 months.

119. The offender in that case was 32 years old at the time of sentencing. He had a “very short” criminal record with only one prior conviction for a driving-related offence. There was evidence of previous attempts at self-harm and an admission to hospital for his mental health. He was clinically tested as having severe depression and anxiety, although there was no evidence that at the time of the offence he suffered from a psychological or psychiatric disorder. The applicant was found to be extremely remorseful and had reasonable prospects of rehabilitation.

120. In R v Meakin [2019] NSWSC 1555, Hidden AJ applied a 12.5% discount for a late plea of guilty. The offender was driving with a blood alcohol concentration of 0.15. He was not exceeding the speed limit but failed to take action to avoid striking a pedestrian and did not stop to render assistance. He was sentenced to 7 years imprisonment with a non-parole period of 4 years.

121. Mental health issues and childhood deprivation did not operate to reduce the offender’s moral culpability in that case. On the other hand, the offender had a “credible record of employment” and had demonstrated “exemplary” behaviour whilst in custody. He was assessed as having good prospects of rehabilitation.

122. In R v Polutele [2020] NSWDC 33, Harris DCJ, following a 25% discount for the early plea of guilty, sentenced the offender to 3 years and 3 months imprisonment with a non-parole period of 1 year and 10 months imprisonment. The offender was driving at a speed of 108 km/h in a 60 km/h zone, hitting and killing a 19-year-old cyclist. The offender was not intoxicated. The offence was assessed as below the mid-range. He was genuinely remorseful, of good character and suffered anxiety and depression at a level requiring medication.

123. The sentence imposed in that case was significantly less than the head sentence in the present case and the points of distinction are stark. The applicant in that case was not driving whilst intoxicated and the objective seriousness of the offence was assessed as below mid-range. In addition, but for one matter on the applicant’s criminal history (an offence of assault occasioning actual bodily harm) he would have been entitled to a positive finding of good character. Subjectively, psychological assessments concluded that he had scored in the “extremely severe” category for depression, anxiety and stress.

124. In R v Munro [2019] NSWDC 743, Hatzistergos DCJ, following a 25% discount for an early plea of guilty, sentenced the offender to 3 years imprisonment with a non-parole period of 1 year and 4 months. The offender was driving at not less than 152 km/h in a 100 km/h zone. His vehicle became airborne before colliding with a tree, killing his ex-partner and mother of his children. The offender’s blood test results were positive for 0.14 mg/L of methylamphetamine and 0.02 mg/L of amphetamine. Hatzistergos DCJ considered that the death of the offender’s ex-partner was a form of extra curial punishment which reduced the need for general and specific deterrence. The offender was assessed as being at a low risk of reoffending and a finding of special circumstances was made.

125. The term of 3 years imprisonment reflected the sentencing judge’s finding that the offender’s consumption of illicit substances did not affect his manner of driving. The sentencing judge concluded that the objective seriousness of the offending fell towards the low range. The offender had no prior convictions and was a person of prior good character. The sentencing judge accepted that the offender was remorseful for his actions and that it was appropriate to take into account the extra curial impact arising from the death of his passenger, who was his wife.

126. A case that was not considered by the sentencing judge but referred to by the applicant on appeal is R v Bortic [2021] NSWCCA 138. Counsel for the applicant in these proceedings pointed to the circumstances of the offending in that case as being more serious than the present offending, in support of the contention that the head sentence imposed by the sentencing judge was manifestly excessive. The case involved a plea of guilty to an offence of aggravated driving in a dangerous manner, the offender having driven over 45 km/h above the posted speed limit and was alcohol affected. Two pedestrians were killed and the third seriously injured. The offender did not suffer from mental health issues nor was there any evidence of childhood deprivation. The sentence imposed, after a 25% discount to account for a plea of guilty, was 8 years with a non-parole period of 4 years and 9 months.

127. Having considered the statistics and the “comparable cases”, I have determined that no lesser head sentence is warranted.

128. Like the sentencing judge, I make a finding of special circumstances warranting a variation of the statutory ratio. Unlike his Honour, I am not of the view that the modest downward adjustment to the non-parole period (four months), gives practical effect to the finding of special circumstances.

129. The applicant’s ongoing schizophrenia, in combination with his other mental health ailments, will result in the applicant suffering greater hardship in custody than an individual not suffering from those conditions or ailments. I have had regard to the fact that this is the first time that the applicant is serving a term of full-time imprisonment. He will require an extended period on supervised parole for treatment of his mental conditions and substance abuse issues. I find special circumstances. Given the complex interplay between his mental health conditions and substance abuse, the applicant will require a lengthy period on parole.

130. A longer period on parole will more likely allow the applicant to address the underlying issues giving rise to the finding of special circumstances, namely, to allow the applicant the opportunity of reintegration into the community by way of compliance with an appropriate Mental Health Plan; to obtain treatment and counselling to address his substance abuse; and, to afford the applicant the opportunity of rehabilitation.

Conclusion

131. Accordingly, I propose the following orders:

1. Grant leave to appeal.

2. Appeal allowed.

3. Quash the sentence imposed in the District Court on 16 August 2023.

4. In lieu thereof, sentence the applicant to a non-parole period of 3 years and 9 months commencing on 10 February 2022 and expiring on 9 November 2025, with a balance of a term of 2 years and 9 months, expiring on 9 August 2028. The total term is one of 6 years and 6 months imprisonment.

5. The earliest date upon which the applicant will be eligible for release to parole is 9 November 2025.

Amendments

07 June 2024 - Correction of counsel details on coversheet

Decision last updated: 07 June 2024