Davidson v R

[2022] NSWCCA 153

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available
• Amendment notes

Medium Neutral Citation:

Davidson v R [2022] NSWCCA 153

Hearing dates:

2 May 2022

Date of orders:

15 July 2022

Decision date:

15 July 2022

Before:

Brereton JA at [1];
Adamson J at [50];
N Adams J at [164].

Decision:

(1) Grant leave to appeal.

(2) Uphold the appeal.

(3) Quash the sentence imposed on the applicant in the District Court on 9 April 2021 and, in lieu thereof, sentence the applicant to an aggregate sentence of 20 years’ imprisonment to commence on 1 February 2020 and expire on 31 January 2040. The aggregate non-parole period is 15 years’ imprisonment to commence on 1 February 2020 and expire on 31 January 2035.

(4) The offence of manslaughter is a "serious violence offence" as defined in s 5A of the Crimes (High Risk Offenders) Act 2006 (NSW). Accordingly, the applicant is advised, as required by s 25C of that Act, of the existence of that legislation and of its application to the offences he has committed.

Catchwords:

CRIME – appeals – appeal against sentence – spree of dangerous driving giving rise to seven offences – where four children died, one injured seriously, two injured – whether ADHD causally linked to commission of offences – whether sentence manifestly excessive – no truly comparable case – indicative sentences on manslaughter counts too high – aggregate sentence too high – appeal allowed – re-sentence

CRIME – appeals – appeal against sentence – totality principle – whether sentence “crushing” – approach where one criminal act but multiple victims

CRIME – manslaughter – use of a motor vehicle – species of involuntary manslaughter in driving cases

Legislation Cited:

Crimes Act 1900 (NSW), ss 18, 18(1)(b), 24, 52A,52A(4), 53, 66A

Crimes (Appeal and Review) Act2001 (NSW), s 68A

Crimes (Sentencing Procedure) Act1999 (NSW), ss 3A, 21A, 21A, 28, 30E, 32, 44, 45D, 53A, 53A(2)

Fair Work Act 2009 (Cth), s 546

Road Transport Act 2013 (NSW), ss 110(5), 117(2), 118, 118(1)

Cases Cited:

Aryal v R [2021] NSWCCA 2

Atai v R [2020] NSWCCA 302

Bubner v R [2022] SASCA 27

Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37

Byrne v R; Cahill v R [2021] NSWCCA 185; 97 MVR 85

Chartres-Abbott v R [2021] NSWCCA 239; 291 A Crim R 225

Crowley v R [2021] NSWCCA 45

Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54

Director of Public Prosecutions vAbdulrahman [2021] NSWCCA 114; 96 MVR 309

Duncan v R [2012] NSWCCA 78

GS v R [2016] NSWCCA 266

Guode v R [2018] VSCA 205

Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45

House v The King (1936) 55 CLR 499; [1936] HCA 40

Hughes v R [2018] NSWCCA 2

JM v R [2014] NSWCCA 297; 246 A Crim R 528

Kerr v R [2016] NSWCCA 218; 78 MVR 191

Lawler v R [2002] NSWCCA 85; 169 A Crim R 415

Lees v R [2019] NSWCCA 65

Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29

Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25

Mills v R [2017] NSWCCA 87

Moananu v R [2022] NSWCCA 85

Nguyen v R (2015) 256 CLR 656; [2016] HCA 17

O’Brien v Tanning Research Laboratories Inc (1988) 14 NSWLR 601

Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221

Pennant Hills Restaurants Pty Ltd v Barrell Insurances Pty Ltd [1977] 2 NSWLR 827

PG v R [2017] NSWCCA 179; 268 A Crim R 61

R v Cameron [2005] NSWCCA 359; 157 A Crim R 70

R v Camilleri [2021] NSWSC 221

R v Chandler(No 2) [2017] NSWSC 1758; 84 MVR 399

R v Clinch (1994) 72 A Crim R 301

R v Cramp [1999] NSWCCA 324; 110 A Crim R 198

R v Gordon (No 8) [2017] NSWSC 574

R v Hraichie (No 3) [2019] NSWSC 973

R v MAK; R v MSK [2006] NSWCCA 381; 167 A Crim R 159

R v Robert Borkowski [2009] NSWCCA 102; 95 A Crim R 152

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

R v Winter [2012] NSWCCA 218; 225 A Crim R 572

R v Wooldridge (2015) 123 SASR 422; [2015] SASCFC 125

Sivell v R [2019] NSWCCA 77

Smith v R [2020] NSWCCA 181; 93 MVR 345

Spark v R [2012] NSWCCA 140

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

Woodbridge v R [2020] NSWCCA 185; 208 A Crim R 503

Woolworths v Kelly (1991) 22 NSWLR 189

ZA v R [2017] NSWCCA 132; 267 A Crim R 105

Category:

Principal judgment

Parties:

Samuel Davidson (Applicant)
Regina (Respondent)

Representation:

Counsel:
S Odgers SC (Applicant)
D Kell SC with G Newton (Respondent)

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

File Number(s):

2020/33651

 Decision under appeal 

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

09 April 2021

Before:

Bennett SC DCJ

File Number(s):

2020/33651

HEADNOTE

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

Mr Davidson (the applicant) pleaded guilty to seven offences arising from his driving a motor vehicle on 1 February 2020. This included four offences of manslaughter, which caused the death of four children, one offence of aggravated dangerous driving occasioning grievous bodily harm, which was inflicted on a child, and two offences of cause bodily harm by misconduct in charge of a motor vehicle, which caused injuries to two children. The applicant pleaded guilty to all offences in the Local Court. On 9 April 2021, Bennett SC DCJ sentenced the applicant to an aggregate term of imprisonment of 28 years with a non-parole period of 21 years.

At 7:00am on 1 February 2020, the applicant was at his home with friends and flatmates. He consumed alcohol throughout the day but no food. Sometime after 11:00am, he used cocaine. Sometime after 4:45pm, he used MDMA.

That evening, at around 7:30pm, the applicant and his flatmate left their house in the applicant’s utility vehicle. They drove to a liquor store and to a petrol station. CCTV footage showed the applicant drive sharply into the driveway of the petrol station and accelerate sharply as he left.

At about 7:45pm, the applicant turned onto Bettington Road, Oatlands, travelling south. He was swerving from side to side and another motorist described the manner of driving as “menacing”. CCTV footage showed the applicant accelerating across four lanes of traffic on Pennant Hills Road against a red light. Another motorist witnessed an incident where the applicant’s driving caused a motorcyclist to swerve sharply.

The applicant travelled further on Bettington Road, where the signposted speed limit was 50km/h. Expert analysis of the CCTV footage of his driving placed a conservative estimate of the applicant’s speed at 122-125km/h and data retrieved from the applicant’s vehicle showed a maximum speed of 133km/h.

As the applicant approached a right-hand bend in the road, he lost control of the vehicle due to the excessive speed, which was measured at 111km/h at the point of impact. The applicant’s vehicle mounted the kerb and struck seven children from behind dragging some of them along a cyclone fence which bordered a golf course.

Four children were killed almost instantly. The other three children were injured, one of them critically, sustaining significant brain injuries. Neither the applicant nor his flatmate, who was in the car, was injured.

A roadside breath of test of the applicant conducted at 8:33pm returned a BAC reading of 0.182g/210L of breath. A blood and urine analysis conducted at 10:45pm indicated a BAC reading of 0.142g/210L as well as 0.12mg/L of a cocaine by-product, 0.13mg/L of MDMA and less than 0.01mg/L of MDA.

The applicant sought leave to appeal from his sentence pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW). The two grounds of appeal were:

1. That the sentencing judge erred in holding that there was no causal link between the applicant’s ADHD and the commission of the offences (the ADHD causal link issue); and

2. That the aggregate sentence was manifestly excessive (the manifest excess issue).

The Court held (per N Adams J, Brereton JA agreeing; Adamson J dissenting) granting leave to appeal on both issues, dismissing the appeal on the ADHD causal link issue and upholding the appeal on the manifest excess issue:

As to the ADHD causal link issue

Per Brereton JA, Adamson and N Adams JJ:

3. It was open to the sentencing judge to find that the applicant’s ADHD did not materially contribute to the offending conduct. The evidence available to the sentencing judge and the facts found did not accord with the facts provided to the expert on which the expert’s evidence was based: [7] (Brereton JA); [127] (Adamson J); [164] (N Adams J).

As to the manifest excess issue

Per Brereton JA, N Adams J:

4. There are several exercises available to an appeal court determining a ground of appeal that a sentence is manifestly excessive which, provided caution is used, may assist in the determination of such a ground. These include looking to comparative cases: [170], [177] (N Adams J) and looking to sentencing statistics: [178], [287] (N Adams J). Looking to sentences imposed in other cases can assist to show a “difference” between the sentence under consideration and past sentences which is required before appellate intervention is warranted: [170] (N Adams J).

Hughes v R [2018] NSWCCA 2; Obeid v R [2017] NSWCCA 221 applied.

Hili v The Queen (2010) 242 CLR 520; Wong v The Queen (2001) 207 CLR 584; Chartres-Abbott v R [2021] NSWCCA 239; BB v R [2021] NSWCCA 283; Ibbotson (a pseudonym) v R [2020] NSWCCA 92 discussed.

5. Where the sentence appealed against is an aggregate sentence, the appeal lies against the aggregate term and not the individual indicative sentences. However, an erroneously high indicative sentence may reveal error in the aggregate sentence, though it does not necessarily do so: [16], [35] (Brereton JA); [237], [289] (N Adams J).

JM v R [2014] NSWCCA 297; 246 A Crim R 528; Kerr v R [2016] NSWCCA 218; 78 MVR 191 applied.

6. There is no truly comparable case to the present one because there is no other reported case where one motor vehicle accident has caused so many deaths and led to so many charges. But there are other cases of vehicular manslaughter where the seriousness of the criminally negligent driving was comparable even though it resulted in fewer deaths. A comparison is possible between those cases and the indicative sentences on each manslaughter count in the present case to assist the Court in assessing the ground of manifest excess: [17] (Brereton JA); [177], [238] (N Adams J).

7. A charge of involuntary manslaughter where the driving of a motor vehicle results in a death may be based on either gross criminal negligence or unlawful and dangerous act, but cases to date have generally been dealt with on the basis of gross criminal negligence: [192], [198], [204] (N Adams J).

R v Pullman (1991) 25 NSWLR 89 considered.

R v Robert Borkowski [2009] NSWCCA 102; 95 A Crim R 152; Lees v R [2019] NSWCCA 65; R v Chandler (No. 2) [2017] NSWSC 1758 discussed.

8. While it is to be accepted that no “category” of manslaughter is more or less serious than others, it is still relevant to the sentencing exercise to identify the nature of the criminal liability on which the applicant was sentenced. In the present case, on the manslaughter counts, the applicant was sentenced on the basis of gross criminal negligence: [12] (Brereton JA); [191], [204] (N Adams J).

9. It is permissible to “gross up” an aggregate sentence by undoing discounts applied in order to arrive at a “rough guide” of what the undiscounted sentence would have been, when necessary: [14] Brereton JA; [243]-[245] (N Adams J).

BB v R [2021] NSWCCA 283; Chartres-Abbott v R [2021] NSWCCA 239; Ibbotson (a pseudonym) v R [2020] NSWCCA 92 considered.

10. The applicant had no criminal record and a good subjective case: [13] (Brereton JA); [228]-[235] (N Adams J).

11. The indicative sentences of 14 years and 3 months (reduced from 19 years’ imprisonment after the application of the 25% discount for the early pleas of guilty) for each of the four manslaughter offences were excessive. This conclusion is supported by an analysis of sentences imposed in other cases: [34] (Brereton JA); [294] (N Adams J).

Moananu v R [2022] NSWCCA 85 considered.

12. A claim that a sentence is “crushing” is a matter relevant to the determination of whether a sentence is manifestly excessive. It is not a standalone requirement when applying the totality principle: [41] (Brereton JA); [319] (N Adams J).

Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26; Atai v R [2020] NSWCCA 302; GS v R [2016] NSWCCA 266; Sivell v R [2019] NSWCCA 77; R v Hraichie (No 3) [2019] NSWSC 973; ZA v R [2017] NSWCCA 132; Australian Building and Construction Commissioner v Pattinson [2022] HCA 13 discussed.

13. A case, such as the present one, where one criminal act causes harm or death to multiple victims poses particular challenges when applying the totality principle. It may be that most of the purposes of sentencing are reflected in the first or longest indicative sentence, and the accumulation of the remaining indicative sentences will reflect additional elements of retribution, denunciation and the individual dignity of each victim: [36]-[38] (Brereton JA); [327]-[328] (N Adams J expressly not deciding).

Bubner v R [2022] SASCA 27; R v Wooldridge (2015) 123 SASR 422; [2015] SASCFC 125 considered.

14. The aggregate sentence imposed on the applicant is manifestly excessive and the applicant should be re-sentenced: [43] (Brereton JA); [334] (N Adams J). All of the findings of the sentencing judge should be adopted: [337] (N Adams J). There should be no finding of special circumstances as a five-year parole period is sufficient: [340] (N Adams J); [47] (Brereton JA contra).

Per Adamson J, dissenting:

15. Whilst consideration of other judicial decisions on sentencing are important, they cannot determine the appropriate sentence in any particular case, particularly such as the present, given its unprecedented nature. The focus of an appellate court is on consistency of principle. An important guidepost is the maximum penalty for the offence charged, which, for the offence of manslaughter is 25 years’ imprisonment.

Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 considered; Director of Public Prosecutions (Vic) v Dalgleish (2017) 262 CLR 428; [2017] HCA 41 considered.

16. It is also not appropriate, when conducting this comparison, to gross up an aggregate sentence by undoing discounts applied.

BB v R [2021] NSWCCA 283 considered.

17. The sentence imposed was necessary and appropriate to reflect the significant harm caused by the loss of the lives of four children and the injuries sustained to the three surviving children. The aggregate sentence imposed was neither unreasonable or plainly unjust, having regard to the number of offences, the substantial harm done to the community, and the limited subjective factors in the applicant’s favour. Individualised justice requires a close consideration of the specific circumstances. The applicant’s reliance on Moananu does not assist his case. In that case, which involved only two offences of manslaughter, the offender presented a very strong subjective case.

Moananu v R [2022] NSWCCA 85 distinguished.

Judgment

1. BRERETON JA: On the evening of Saturday 1 February 2020, at about 7.50pm, seven children – Angelina Abdallah then aged 12, Sienna Abdallah then 8, Antony Abdallah then 13, Leanna Abdallah then 10, Veronique Sakr then 11, Charbel Kassas then 11, and Mabelle Kassas then 13 – who had been at a family function, were walking slowly and lawfully along the footpath of Bettington Road, Oatlands, to get some ice-cream. In a moment of time, their lives and those of their families would be shattered forever: Angelina, Sienna, Antony and Veronique were killed; Charbel was critically injured and though he survived sustained a significant brain injury with a long-term impact on his cognitive and social abilities and quality of life; Mabelle and Leanna suffered lacerations, and Leanna will have a significant facial scar.

2. This catastrophic carnage was wrought by the applicant Samuel Davidson who, having spent the day drinking alcohol and consuming cocaine and MDMA, with a blood alcohol concentration (BAC) of 0.18%, drove his motor vehicle from his home to a service station and then back, a distance of 5.3 kilometres, at times in a menacing manner, swerving to endeavour to overtake other vehicles, at times on the wrong side of the road, at high speed, driving through a roundabout anti-clockwise on the wrong side of the road, sticking his finger up at other motorists, disobeying a red light to cross Pennant Hills Road (a major four lane highway), then reaching a speed of 133 Kph as he continued along Bettington Road, losing control as he rounded a bend and mounting the kerb, striking all seven children from behind.

3. Mr Davidson, who was 29 years of age and of prior good character and has attention deficit hyperactivity disorder (ADHD), was immediately remorseful. He pleaded guilty, at the first opportunity, to seven offences: four of manslaughter (Crimes Act, s 18(1)(b)), one of aggravated dangerous driving occasioning grievous bodily harm (“grievous bodily harm”) (Crimes Act, s 52A(4)), and two of cause bodily harm by misconduct in charge of a motor vehicle (“actual bodily harm”) (Crimes Act, s 53). For those offences, he was sentenced in the District Court to an aggregate term of imprisonment of 28 years, with a non-parole period of 21 years. By the time he is eligible for parole – 31 January 2041 – he will be fifty years of age. In imposing the aggregate sentence of 28 years imprisonment, the sentencing judge, as required by s 53A(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW), indicated the individual sentences that would have been imposed had the applicant been separately sentenced for each offence, after allowing a 25% discount in each case for the plea of guilty, as follows:

1. for each of the four manslaughters, 14 years and 3 months;

2. for the grievous bodily harm, 6 years;

3. for each of the actual bodily harms, 16 months.

4. No sentence that a court of criminal jurisdiction could impose can make good the tragedy of the loss of four young lives, the maiming of three others, and the grief and devastation to their families. The view that it calls for a sentence of utmost severity is a natural response. However, it cannot be overlooked that the applicant’s crimes are not crimes of intent. As was said by the Full Court of the Supreme Court of South Australia in R v Wooldridge: [1]

“In this case, the appellant has been charged with, and had to be sentenced for, five separate offences. This was so even though the appellant committed just the one act of dangerous driving which caused just the one accident. The consequences of such a single act of driving will be, as the judge pointed out, largely a matter of happenstance or chance. It is possible that no one will be killed or injured or that one or a number of persons will be killed or injured. In this case, the appellant’s dangerous driving had the catastrophic consequence that four people were killed and another very seriously injured.”

1. (2015) 123 SASR 422; [2015] SASCFC 125 at [25].

5. Here, the tragic “happenstance” of the deaths converted offences of driving with the high range prescribed concentration of alcohol (Road Transport Act 2013 (NSW), s 110(5)) carrying a maximum penalty of 18 months imprisonment; furious, reckless or dangerous driving (Road Transport Act, s 117(2)) carrying a maximum penalty of 9 months imprisonment; and/or menacing driving (Road Transport Act, s 118(1)) carrying a maximum penalty of 18 months imprisonment, into four counts of manslaughter each carrying a maximum sentence of 25 years imprisonment.

6. Mr Davidson applies for leave to appeal against the sentence, on grounds that:

1. The sentencing judge erred in holding that there was no causal link between the applicant’s ADHD and the commission of the offences; and

2. The sentence imposed is manifestly excessive.

7. I have had the benefit of reading in draft the judgments to be delivered by Adamson J and N Adams J. I agree, for the reasons given by Adamson J, that ground 1 fails. But I agree with N Adams J that ground 2 should succeed, and upon resentencing I would reduce the sentence imposed in the District Court by a greater margin than would her Honour. Because the other members of the Court differ as to ground 2, and although, except as otherwise indicated below, I agree with the reasons of N Adams J, from whose judgment I have derived much assistance, it is appropriate that I state my own reasons.

Manifest excess

8. The principles applicable to a complaint that a sentence is manifestly excessive, derived from authority, [2] were summarised in Hughes v R,[3] as follows:

“(1) appellate intervention is not justified simply because the result arrived at in the court below is markedly different from sentences imposed in other cases;

(2) intervention is only warranted where the difference is such that it may be concluded that there must have been some misapplication of principle, even though where and how is not apparent from the reasons of the sentencing judge, or where the sentence imposed is so far outside the range of sentences available that there must have been error;

(3) it is not to the point that this Court might have exercised the sentencing discretion differently;

(4) there is no single correct sentence and judges at first instance are allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle; and

(5) it is for the applicant to establish that the sentence was unreasonable or plainly unjust.”

2. Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [59] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ); Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25], [27] (Gleeson CJ, Gummow, Hayne and Callinan JJ); Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [58] (Gaudron, Gummow and Hayne JJ); Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 (“Dinsdale”) at [6] (Gleeson CJ and Hayne J); Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29 at [15] (Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ); House v The King (1936) 55 CLR 499 at 505 (Dixon, Evatt and McTiernan JJ); [1936] HCA 40.

3. [2018] NSWCCA 2 at [86] (Payne JA, RA Hulme and Garling JJ).

9. A finding of manifest excess reflects concealed error, in that the error may not be apparent from analysis of the remarks on sentence, but is inferred from the discrepancy of the sentence, as R A Hulme J observed in Obeid v R: [4]

“Intervention is only warranted where the difference is such that it may be concluded that there must have been some misapplication of principle, even though where and how is not apparent from the reasons of the sentencing judge, or where the sentence imposed is so far outside the range of sentences available that there must have been error.”

4. (2017) 96 NSWLR 155; [2017] NSWCCA 221 at [443] (R A Hulme J; Bathurst CJ, Leeming JA, Hamill J and N Adams J agreeing); (“Obeid”).

10. To similar effect, in Mills v R, R A Hulme J said: [5]

“A complaint of manifest excess is a conclusion; it does not admit of lengthy exposition; and it is derived from an inference that there was ‘a failure properly to exercise the discretion which the law reposes in the court’ below”.

5. [2017] NSWCCA 87 at [63] (R A Hulme J; Leeming JA and Beech-Jones J agreeing); see also Dinsdale at [6] (Gleeson CJ and Hayne J).

11. Ultimately, an appellant must establish that the sentence is “unreasonable or plainly unjust”. [6]

    6. Dinsdale at [6] (Gleeson CJ and Hayne J).

The indicative sentences

12. The facts of the offending have been summarised above, and are set out more fully in the judgment of Adamson J. [7] Their objective gravity is great, and so much is undisputed. It was rightly described by the sentencing judge as “a horrific example of unlawful and dangerous conduct and gross negligence”, where the applicant had “no regard for the safety of any other road users including his victims”. However, as N Adams J explains, [8] the mental basis of the applicant’s criminal liability is criminal negligence, not intent, and he fell to be sentenced on the basis that, although he never intended to cause death or grievous bodily harm, it resulted from such a breach of his duty of care as to merit criminal punishment.

    7. Below at [59]-[76].

    8. Below at [204].

13. The applicant’s subjective case has been summarised by N Adams J. [9] At the time of the offence, he was a 28-year-old man of previous good character. Although he had on six occasions received infringement notices and fines for exceeding the speed limit, and once for driving unlicensed (his previous license having expired), he had no serious driving or other offences, and in particular no record of driving under the influence of alcohol or drugs. Born with ADHD, he struggled academically and socially in high school and left school at the end of Year 10. Thereafter he worked at first in the hospitality industry, as an apprentice chef, kitchenhand and cook, a disc jockey, and for about six years prior to the offence as a truck driver. In a letter to the sentencing Court, he described that his “worst punishment” was waking up every day knowing that he was responsible for the horrible accident that will stay with him forever.  He apologised to the family of the victims and told them that he prayed for them every day. He stated that he will never again touch drugs or alcohol nor drive a motor vehicle. He was found by the sentencing judge to be genuinely remorseful, with good prospects of rehabilitation and unlikely to reoffend. The combination of good character, remorse, and good prospects of rehabilitation, culminating in a finding that he unlikely to re-offend, constitute a substantial subjective case. As N Adams J explains, [10] the subjective features of the applicant’s case were more favourable than those in many of the comparable cases mentioned below.

    9. Below at [228]-[234].

    10. Below at [235].

14. The applicant received a discount of 25% for his early pleas of guilty. While authority establishes that the discount is applied to the indicative sentences and not the head sentence, [11] for the purposes of comparing an aggregate sentence after a plea of guilty with an undiscounted sentence, it is not impermissible to “add the discount back” to the head sentence in order to obtain at least an approximate comparator. [12] Indeed, there is not really any other way to do so, and where the same discount has been applied to all the offences that have been aggregated, it should make no difference whether the discount is applied to the individual indicative sentences or to the aggregated sentence.

    11. PG v R [2017] NSWCCA 179; 268 A Crim R 61.

    12. Chartres-Abbott v R [2021] NSWCCA 239; 291 A Crim R 225 at [23] (Brereton JA; Campbell J and Hamill J concurring); Moananu v R [2022] NSWCCA 85 (“Moananu”) at [6] (Leeming JA), [138] (Hamill J).

15. Adopting that approach, the head sentence of 28 years implies an undiscounted starting point of 37 years. My instinctive reaction – like that of Leeming JA to the shorter sentence (15 years imprisonment with a non-parole period of 10 years) that had been imposed in comparable circumstances in Moananu [13] – was that that seemed excessive for offences which, notwithstanding their horrific consequences, were attributable to criminal negligence and not to wilful intent, on the part of an offender of prior good character. But, notwithstanding the caution which is to be applied to their use, and in particular that they describe rather than define a range of sentences, comparable cases provide a surer basis for assessment than mere instinct, and what is often described as instinct in this field is informed, if sub silentio, by a judicial officer’s experience in and knowledge of more or less comparable cases. Comparable cases are important also because they assist in achieving consistency and predictability of outcomes. Without reference, whether expressed or not, to comparable cases, instinct is not far removed from idiosyncrasy.

    13. Moananu at [6].

16. An aggregate sentence is necessarily informed by, and represents an accumulation to some degree of, the indicative sentences. While, in an appeal from an aggregate sentence on the ground of manifest excess, a principal focus is whether the aggregate sentence appropriately reflects the totality of the criminality involved, [14] and while the indicative separate sentences are not themselves amenable to appeal, error in an indicative sentence may assist a finding of error in the aggregate sentence, [15] though it has been said that the latter conclusion does not necessarily follow, [16] a matter to which I return in discussing totality below. At this point, it is appropriate first to consider the indicative sentences. Consistently with the manner in which the appeal was conducted, and because they are by far the lengthiest and greatest component of the ultimate aggregate sentence, the focus is the 14 year 3 month indicative sentences for each of the four manslaughters.

    14. Aryal v R [2021] NSWCCA 2 at [49]-[50] (R A Hulme J; Johnson J and Wilson J agreeing); JM v R [2014] NSWCCA 297; 246 A Crim R 528 at [85] (R A Hulme J; Hoeben CJ at CL and Adamson J agreeing).

    15. JM v R [2014] NSWCCA 297; 246 A Crim R 528 at [40].

    16. Kerr v R [2016] NSWCCA 218; 78 MVR 191 at [114] (Bathurst CJ; Hoeben CJ at CL and Price J agreeing).

17. It has several times been said in the course of these proceedings that there is no case comparable to it. While that may be so in terms of the number of victims and thus offences, that is not relevant to the indicative sentence for each individual offence, for which there are many comparable cases. They are extensively discussed by N Adams J. For my purposes, the salient points that emerge from them are summarised below. Save where noted, all were, like the present, pleas of guilty.

18. In R v Cameron, [17] for three counts of manslaughter and one of dangerous driving causing grievous bodily harm arising out of a collision with a telegraph pole, the offender was re-sentenced to a total effective sentence of 9 years, with a non-parole period of 6 years. This was derived through the partial accumulation of sentences, for each count of manslaughter of a term of 7 years (being a non-parole period of four years and a balance term of three years), and for the grievous bodily harm a fixed term of 3 years. [18] The accumulation on the longest individual sentence (7 years) was 2 years (for two manslaughters and one grievous bodily harm). A higher sentence may well have been appropriate had it not been a Crown appeal prior to the enactment of s 68A of the Crimes (Appeal and Review) Act2001 (NSW). [19] The offending conduct was broadly similar to that in the present case, though the BAC was lower (in excess of 0.114%). Subjectively, the offender was only 21 years of age, but at the time of offending was subject to a good behaviour bond.

    17. [2005] NSWCCA 359; 157 A Crim R 70 (Grove J; McClellan CJ at CL and Hislop J agreeing).

    18. [2005] NSWCCA 359; 157 A Crim R 70 at [42], [47] (Grove J).

    19. [2005] NSWCCA 359; 157 A Crim R 70 at [3] (McClellan J).

19. In Lawler v R,[20] for one count of manslaughter (with a number of Form 1 matters) and two of dangerous driving occasioning grievous bodily harm, a sentence of 10 years and 8 months (non-parole period 8 years) for the manslaughter count and sentences of 2 years and 18 months respectively for the two grievous bodily harms were held not to be manifestly excessive. The objective gravity of the offending was increased relative to the current case by the nature of the vehicle – a prime mover – and the offender’s knowledge that its brakes were defective with the result that when the brakes failed on a long, steep incline, the prime mover collided with 33 vehicles. There was no accumulation, the sentences for the other counts being wholly concurrent.

    20. [2007] NSWCCA 85; 169 A Crim R 415.

20. In R v Robert Borkowski, [21] the offender with a BAC of 0.06 and residual effects of cannabis and methylamphetamine was engaged in racing two other vehicles along the Great Western Highway at St Marys for a distance of some 5 kilometres at speed up to at least 130kph and collided with a vehicle killing its two passengers. On a Crown appeal, Howie J, with whom McClellan CJ at CL and Simpson J agreed, held that sentences of a fixed term of 4 years for one manslaughter and 7 years (non-parole period 4 years) for the second, accumulated by only 2 years to produce a total effective sentence of 9 years, were manifestly inadequate, and that the least total effective sentence that could have been imposed was 12 years (non-parole period 9 years), though had he been the sentencing judge his Honour would have imposed a higher sentence than that. However, that sentence was not imposed, because the residual discretion was exercised to dismiss the Crown appeal. His Honour regarded the case as more serious than cases such as Cameron “because it involved three vehicles all being driven dangerously in a joint enterprise and, hence, the potential dangerousness to others in the vicinity was increased dramatically from a case involving the dangerous driving of a single vehicle”. [22]

    21. [2009] NSWCCA 102; 95 A Crim R 152 (“Borkowski”).

    22. [2009] NSWCCA 102; 95 A Crim R 152 at [59] (Howie J).

21. In Woodbridge v R,[23] a case which exceptionally involved a conviction after trial, for one count of manslaughter and one count of dangerous driving occasioning grievous bodily harm (a stroke leaving the victim wheelchair bound), on a Crown appeal, the offender was resentenced to a total effective term of 9 years with a non-parole period of 6 years, the manslaughter attracting a sentence of 7 years with a non-parole period of 4 years, and the grievous bodily harm a fixed term of 3 years. The accumulation on the longest individual sentence (7 years) was 2 years (for one grievous bodily harm). The offending conduct was no less grave than that of the present applicant; the BAC was much higher, around 0.277%; the offender drove for 9 km in a built-up area in the vicinity of schools and shopping centres. Her subjective case that she had suffered from depression and alcohol abuse and had ongoing psychiatric issues was offset by her having previously been convicted of driving with the high range prescribed concentration of alcohol.

    23. [2010] NSWCCA 185, 208 A Crim R 503.

22. In Duncan v R,[24] for two counts of manslaughter and three of dangerous driving causing grievous bodily harm, a total effective sentence of 12 years and 6 months with a non-parole period of 8 years was upheld; the sentences of 9 years and 6 months (non-parole period 5 years) for each manslaughter and fixed terms of imprisonment for 3 years for the dangerous driving offences were partially accumulated. The accumulation on the longest individual sentence (9 years 6 months) was 3 years (for one manslaughter and three grievous bodily harm). This case, in which the 36-year-old offender encouraged one of her younger passengers to drive faster (up to 210km/h), before taking the wheel and indicating she would go even faster and losing control, is objectively no less serious than the present.

    24. [2012] NSWCCA 78.

23. In Spark v R,[25] for two counts of manslaughter, a total effective sentence of 15 years with a non-parole period of 11 years and 3 months was upheld. It reflected partial accumulation of sentences of 12 years and 6 months (non-parole period 8 years and 9 months), and of 13 years and 6 months (non-parole period 9 years and 9 months), the latter after taking into account two offences on a Form 1 (aggravated break and enter and commit serious indictable offence contrary to s 112(2) of the Crimes Act and an offence of take and drive conveyance contrary to s 154A(1) of the Crimes Act). The objective gravity was accentuated by circumstances that the offender had never held a licence, was on parole for car theft, drove while experiencing drug withdrawal after using methylamphetamine and amphetamines, participated in a lengthy police pursuit and ultimately drove onto the wrong side of the road at which time he crashed into a car travelling into the opposite direction killing a woman and her 18-year-old daughter. The offender had a significant criminal record. The accumulation on the longest individual sentence (13 years 6 months) was 18 months (for the second manslaughter). Spark was objectively more serious, and subjectively less favourable, than the applicant’s case.

    25. [2012] NSWCCA 140 (“Spark”).

24. In R v Winter,[26] a Crown appeal against a sentence imposed for two counts of manslaughter decided after the introduction of s 68A of the Crimes (Appeal and Review) Act, the offender was resentenced for two counts of manslaughter to an aggregate sentence of 9 years imprisonment with a non-parole period of 6 years; each indicative sentence was 7 years, with the observation that this involved “an identifiable period of custody for count 1 of 2 years”. [27] Thus the accumulation on the longest individual sentence (7 years) was 2 years (for the second manslaughter). The offending conduct was less objectively grave than in the instant case (the offender lost consciousness due to undiagnosed epilepsy, but was found to know of her potential to do so, and drove under the influence of morphine and cannabis contrary to medical advice), but her subjective case was weaker (she had a significant criminal history and was serving a periodic detention order at the time of the offence).

    26. [2012] NSWCCA 218; 225 A Crim R 572 (“Winter”).

    27. Winter at [55] (McLellan CJ at CL; Johnson J and Garling J agreeing).

25. In R v Chandler (No. 2), [28] for a single count of manslaughter, but taking into account matters on a Form 1 relating to the theft of the vehicle and escaping from police, the offender was sentenced to 19 years’ imprisonment (non-parole period 13 years), after a 5% discount on 20 years for a late guilty plea; for purposes of comparison it equates to a sentence of 15 years assuming a 25% discount. The 22-year-old offender having taken ice (crystal methamphetamine) drove at speed and in a stolen vehicle, and in an attempt to escape a police pursuit, deliberately drove through the front fence of a residential property, using the vehicle as a battering ram, and colliding with and killing an 18-month-old child (two other children suffered minor injuries). He was sentenced on the basis of manslaughter by unlawful and dangerous act, [29] in that he realised that there was an appreciable risk of serious injury to persons in the backyard when he drove through the fence of the property, “at the gravest end of the spectrum of crimes of involuntary manslaughter”. [30] Thus, the mental element upon which Chandler was sentenced was very close to that of murder. As N Adams J explains, the case is in that respect significantly more serious than the applicant’s case. [31]

    28. [2017] NSWSC 1758 (“Chandler (No. 2))”.

    29. Chandler (No. 2) at [89].

    30. Chandler (No. 2) at [96].

    31. Below at [200]-[203].

26. In Lees v R, [32] for a single offence of manslaughter, a sentence of 16 years’ imprisonment (non-parole period 12 years) was held on appeal to be manifestly excessive and reduced to a head sentence of 12 years (non-parole period 9 years). The offender had killed her de facto partner by driving her vehicle at him with the intention of hitting him, and was sentenced on the basis that the offence was manslaughter by unlawful and dangerous act. [33] Again, the case does not fall far short of murder.

    32. [2019] NSWCCA 65 (“Lees”).

    33. Lees at [11].

27. In Smith v R, [34] for one count of manslaughter, one of possession of cannabis, one of driving with cannabis in her blood, and one of driving with the high range prescribed concentration of alcohol), a sentence of 9 years imprisonment (non-parole period 6 years 3 months) was held to be manifestly excessive, and a sentence of 7 years and 6 months (non-parole period 5 years) was substituted. The offender had a BAC of at least 0.243%, had collided with a post and a hedge before leaving a car park with her tyres “squealing”, was warned that she should not be driving and declined offers to drive her home, narrowly missed a small boy pushing his bicycle across the road, left the road and fishtailed striking and snapping a speed sign and tearing the door panel from the door frame, after remaining off the road for 90 metres continued to drive at high speed for 700 metres, again leaving and returning to the road and narrowly missing a car travelling in the opposite direction, before striking the victim. She had previous convictions for driving with the prescribed concentration of alcohol. This Court held that the sentence imposed was manifestly excessive having regard to prevailing sentencing practice, [35] and that the appropriate starting point (prior to the application of the 25% discount for the guilty plea) was imprisonment for 10 years, and after reduction for the prompt plea of guilty and adjustment of the statutory proportions between the head sentence and the non-parole period, the applicant should be resentenced to imprisonment for 7 years and 6 months with a non-parole period of 5 years. [36] Objectively and subjectively it was a worse case than the applicant’s.

    34. [2020] NSWCCA 181; (2020) 93 MVR 345.

    35. Referring to Woodbridge v R [2010] NSWCCA 185; (2010) 208 A Crim R 503; R v Cameron [2005] NSWCCA 359; (2005) 157 A Crim R 70; R v Cramp [1999] NSWCCA 324; (1999) 110 A Crim R 198; R v Gordon (No 8) [2017] NSWSC 574.

    36. [2020] NSWCCA 181; (2020) 93 MVR 345 at [79], [84] (Simpson AJA; Rothman J and Bellew J agreeing).

12. In Crowley v R, [37] for one count of manslaughter and three counts of aggravated dangerous driving causing grievous bodily harm, an aggregate sentence of 14 years and 3 months with a non-parole period of 10 years was upheld. The indicative sentence for the sole count of manslaughter was 11 years’ imprisonment, and for the grievous bodily harms the indicative sentences were 4 years and 8 months for two and 4 years and six months for the third. The accumulation on the longest individual sentence (11 years) was 3 years and 3 months (for the three grievous bodily harms). The offender had driven with a BAC not less than 0.12%, in a dangerous manner at high speeds up to at least 144 kph in 70 and 80 kph zones and on the incorrect side of the road for a substantial period, sideswiping three other vehicles and colliding with a fourth, injuring a passenger, before ultimately coming into collision head-on with another motor vehicle. The offending conduct was objectively no less serious than the applicant’s, and the subjective considerations inferior: he had a previous mid-range prescribed concentration of alcohol which disentitled him to leniency though was otherwise of good character.

    37. [2021] NSWCCA 45 (“Crowley”).

13. In Director of Public Prosecutions v Abdulrahman,[38] for a single count of manslaughter and a count of driving while disqualified, on a Crown appeal, the offender was resentenced to an aggregate sentence of 10 years and 2 months (non-parole period 6 years and 8 months); the indicative sentence for the manslaughter was 10 years and one month. The respondent, whilst disqualified from driving and having been afforded the leniency of an intensive correction order for driving under the influence of drugs, drove a motor vehicle through a red light, without stopping, near a busy school, with a level of methylamphetamine in his blood in the “reported toxic to potentially fatal range”. Two 12-year-old boys were crossing the road. One was killed instantly whilst the other looked on. After observing his body, the respondent failed to render any assistance to the dying child and instead stood by smoking a cigarette and speaking to family members on his mobile telephone. He deleted texts on his mobile telephone and lied to police about the cause of the accident. His subjective case was very weak: he had a criminal history, a poor driving history and little in the way of mitigation beyond his guilty plea, save that he was on medication for post-traumatic stress disorder as a result of a shooting some years earlier. In considering as comparable cases Smith, Spark, and Winter, Beech-Jones J (as his Honour then was), with whom Garling J and N Adams J agreed, considered that the offender’s criminality was worse than Winter (aggregate sentence 9 years, indicative 7 years for each count of manslaughter) but not so serious as Spark (aggregate sentence 15 years, indicative sentence 12 years 6 months for manslaughters), and distinguishable, especially as to the necessity to address specific deterrence and protect the community, from Smith. [39] In my view, the objective gravity was not materially different from the present case, and the subjective considerations were inferior.

    38. [2021] NSWCCA 114.

    39. [2021] NSWCCA 114 at [58].

14. In Byrne v R; Cahill v R,[40] this Court considered that for a single count of manslaughter, sentences of 10 years and 6 months (non-parole period 7 years) were high but not manifestly excessive. The two offenders were involved in a street race in a large regional city in mid-morning, reaching speeds up to 143 and 130km/h where the speed limit was 50km/h, hitting another car the passenger of which was killed. This Court considered it to be a most serious example of its kind calling for significant general deterrence. In my view, the objective gravity was not materially different from the present case.

    40. [2021] NSWCCA 185.

15. Most recently, in Moananu, [41] for two counts of manslaughter contrary to s 18 of the Crimes Act (one of which involved a woman pregnant with twins) and one count of aggravated dangerous driving occasioning grievous bodily harm, an aggregate sentence of 15 years imprisonment with a non-parole period of 10 years (where the indicative sentences for the two manslaughter offences were 8 years and 6 months and 9 years (including the Form 1 matters) respectively and 4 years and 6 months for the aggravated dangerous driving occasioning grievous bodily harm), was held to be manifestly excessive, and the applicant was re-sentenced to an aggregate sentence of 12 years and 6 months with a non-parole period of 8 years and 4 months. The indicative sentences for manslaughter were 7 years and 6 months and 8 years and 3 months and for the aggravated driving causing grievous bodily harm was 4 years and 6 months. The accumulation on the longest individual indicative sentence (8y3m) was 4 years and 3 months (for one manslaughter and one grievous bodily harm). Mr Moananu’s offending conduct was broadly similar to that of the applicant, but, it seems to me, his driving was somewhat more reckless, he was unlicensed at the time, and his BAC was considerably higher. Subjectively, he had a bad traffic record and a prior criminal conviction. It is true that he had some Bugmy [42] factors, but they were considered of limited significance: Leeming JA, while noting the “powerful” evidence of childhood deprivation, agreed with the sentencing judge that it did not greatly diminish the offender’s moral culpability. [43]

    41. [2022] NSWCCA 85.

    42. Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37.

    43. Moananu at [28].

16. Reference might also be made to Guode v R, [44] a Victorian case in which the offender pleaded guilty to the infanticide of her 16-month-old youngest child, the murder of her 4-year-old twins, and the attempted murder of her 5-year-old, by deliberately driving her car into a lake. On appeal, a total effective sentence of 26 years and 6 months (non-parole period 20 years), comprised of two sentences of 22 years for the murders, one of 6 years for the attempted murder and one of 12 months for the infanticide, with a total accumulation on the longest sentence of 4 years and six months, was set aside as manifestly excessive. Upon resentencing, a total effective sentence of 18 years (non-parole period 14 years), with 16 years for the two murders, 4 years for the attempted murder and 12 months for the infanticide (accumulation of 2 years, for the second murder, attempted murder and infanticide), was substituted. On any view, that offender’s criminality must be viewed as very substantially greater than the present applicant’s.

    44. [2018] VSCA 205.

17. The cases to which reference has been made – with the exceptions of Lees (12 years) and Chandler (15 years when adjusted), which were both cases in which the mental element was not far removed from murder – are suggestive of a range of actual or indicative head sentences on early pleas of guilty for a single count of vehicular manslaughter, generally between 7 years and 11 years. Most notably, in two reasonably closely comparable cases, actual or indicative sentences for counts of manslaughter less than those indicated in respect of the applicant – Moananu, where the original aggregate sentence was 15 years based on indicative sentences for two manslaughter offences of 8 years and 6 months, and Smith, where the original sentence for manslaughter was 9 years – were held to be manifestly excessive, and in each case sentences of 7 years and 6 months substituted. Those are to be compared with the indicative sentences of 14 years and 3 months for this applicant’s manslaughter offences. And in terms of the criminal conduct (as distinct from the consequences), the present case lacked factors which have been regarded as especially aggravating, in particular being engaged in a pursuit, ignoring requests to slow down or warnings not to drive, or prior collisions or near-misses during the driving immediately before the ultimate offence.

18. This analysis confirms my instinctive reaction. The indicative sentences of 14 years and 3 months for each manslaughter count were plainly excessive according to prevailing sentencing practices.

The aggregation

35. However, as explained above, an appeal lies not from the indicative sentences but from the aggregate sentence, and the ultimate question is whether the aggregate sentence is manifestly excessive. As I have mentioned, it has been said that, as the appeal lies from the aggregate sentence, error in an indicative sentence, though it may be relevant to whether the aggregate sentence is excessive, [45] is not determinative of that question: “the fact that the indicative sentences are excessive does not necessarily mean that the aggregate sentence is excessive”. [46] However, as the indicative sentence is, or at least should be, part of the reasoning process that culminates in the aggregate sentence, it is easy to see how an erroneous indicative sentence would support a conclusion that the aggregate sentence miscarried; it is less easy to see why it is not demonstrative of error in the aggregate sentence, except perhaps that it might be offset by the approach taken to accumulation and totality in reaching an aggregate sentence – as greater accumulation may be acceptable where the individual sentences are relatively shorter, and less accumulation when the individual sentences are lengthier. ^[47]

    45. JM v R [2014] NSWCCA 297; 246 A Crim R 528 at [40] (R A Hulme J).

    46. Kerr v R [2016] NSWCCA 218; 78 MVR 191 at [114] (Bathurst CJ).

    47. Nguyen v R (2015) 256 CLR 656; [2016] HCA 17 at [64] (Gageler, Nettle and Gordon JJ).

36. The comparable cases to which reference has been made illustrate the principle that in a case where a single criminal act or course of conduct constitutes multiple offences because there are multiple victims, most of the purposes of punishment will be reflected in the sentence on the first count, [48] and the accumulation of the sentences in respect of the subsequent counts reflects additional elements of retribution and denunciation. [49] The rationale was explained in Wooldridge: [50]

“… [T]he sentence that would have been imposed had there been just the one offence would need to be significantly increased. However, this again has to be considered in the context that even though the legal culpability has been increased, the moral turpitude has not changed and all of the purposes of punishment, but for retribution or denunciation (as explained earlier), have been fully reflected in the sentence for the first count. The extent of any concurrency ordered must also take into account that it will be a question of happenstance as to whether one person or two persons or in the case of, perhaps, a minibus 20 persons, are killed or injured.”

48. Bubner v R [2022] SASCA 27 at [59] (Livesey P, Doyle and David JJA).

49. R v Wooldridge (2015) 123 SASR 422; [2015] SASCFC 125 at [80] (Gray ACJ, Peek and Nicholson JJ).

50. Wooldridge at [80] (Gray ACJ, Peek and Nicholson JJ).

37. Application of the totality principle required that regard be had to the violation of each victim, but also to the circumstance that they were the result of but a single course of criminal conduct. As was said by the Victorian Court of Appeal in Guode v R: [51]

“…[A]lthough it must be recognised that the applicant owed a separate obligation to each victim not to cause them harm, it must also be recognised that there is a commonality between the four offences embraced by the indictment, in that it was the single act of driving the motor vehicle into the lake which constituted the criminal act common to each offence. Therefore, despite there being a necessity for there to be some cumulation between the sentences on each charge, that cumulation should be moderate.”

51. [2018] VSCA 205 at [73] (Ferguson CJ, Priest and Beach JJA).

38. I do not share the reservation expressed by N Adams J as to the application of the approach stated in Wooldridge in the context of multiple deaths caused by criminal negligence. In my view, its application in that context is supported by the approach adopted in Moananu, where the accumulation was expressed, in the words of Hamill J, to reflect “the suffering and individual dignity” of each separate victim. ^[52] It is also supported by Guode.

    52. Moananu at [172].

39. The above analysis of comparable cases reveals that in cases of multiple offences arising from a single act or course of dangerous driving which has resulted in multiple victims, accumulations upon the longest individual sentence to account for the additional offences have ranged from nil (that is, total concurrency) in Lawler, where the longest individual sentence was 10 years and 2 months, to 4 years and 3 months in Moananu, where the indicative sentence was 7 years and six months. Notably, Hamill J in this Court observed that the degree of accumulation in the initial sentence in Moananu (which involved an accumulation of six years on the longest indicative sentence) was “unusually high for a case involving a single course of criminal conduct”. [53]

    53. Moananu at [61].

40. In this respect no case is directly comparable to the present because no case involves three additional manslaughters, a grievous bodily harm and two actual bodily harms. Unquestionably, some degree of accumulation for each additional offence was appropriate individually to recognise the violation of each victim. While a greater total accumulation than in the comparable cases is appropriate given the unprecedented number of victims, it must also be borne in mind that each increment in a sentence is exponentially more severe, as “the severity of a sentence increases at a greater rate than any increase in the length of the sentence”. [54] So viewed, the degree of accumulation (13 years and 9 months, for 3 manslaughters, 1 grievous bodily harm and two actual bodily harms) applied in the aggregate sentence to the already harsh indicative sentences (14 years 3 months) – counter to the guidance of the High Court that “generally speaking … the imposition of … more severe individual sentences may necessitate a greater degree of concurrency” ^[55] – to produce an aggregate sentence of 28 years, was grossly discordant with prevailing sentencing practices. It will be recalled that in Cameron, the accumulation on the longest individual sentence (7y) was 2 years (for two manslaughters and one grievous bodily harm).

    54. R v Clinch (1994) 72 A Crim R 301 at 306 (Malcolm CJ); R v M.A.K.; R v M.S.K. [2006] NSWCCA 381; 167 A Crim R 159 at [15]-[16] (Spigelman CJ, Whealy and Howie JJ).

    55. Nguyen v R (2015) 256 CLR 656; [2016] HCA 17 at [64] (Gageler, Nettle and Gordon JJ).

41. As I have noted, the effect of the aggregate sentence and non-parole period is that the applicant, who at the time of the offences was 29, will not be eligible for parole until he is 50, and will not have served his sentence until he is 57. The cases which inform the relevance of a sentence being so long as to be “crushing” are discussed by N Adams J. [56] I accept that there is no standalone principle that a sentence must not be “crushing”, in the sense that a sentence that is “crushing” will not on that account alone necessarily be manifestly excessive; in some circumstances, the only proper sentence may be one that is “crushing”. The “crushing” effect of a sentence is but one of the matters to be taken into account in determining whether the sentence is beyond the range of sentences properly available to the sentencing judge, the ultimate question is whether the sentence is proportionate to the offender’s overall criminality. [57] However, the same cases establish that it is a relevant consideration, in the aggregation of sentences, that the result may be “crushing”. That consideration is likely to have most relevance in a case of a relatively young offender of prior good character, with good prospects of rehabilitation, who is in custody for the first time.

    56. Below at [302]-[322].

    57. Atai v R [2020] NSWCCA 302 at [88] (Bathurst CJ; Price J and N Adams J agreeing); GS v R [2016] NSWCCA 266 at [51] (Gleeson JA; Fagan and N Adams J agreeing); Sivell v R [2019] NSWCCA 77 at [122] (Beech-Jones J; Hoeben CJ at CL and McCallum JA agreeing); R v Hraichie (No 3) [2019] NSWSC 973 at [350] (Johnson J); ZA v R [2017] NSWCCA 132 at [71]-[73] (Johnson and Fullerton JJ; Payne JA agreeing).

42. This is such a case. A sentence for an offence of criminal negligence which leaves a 29-year-old man of prior good character with good prospects of rehabilitation no prospect of release until he is 50 is indeed crushing, and not proportionate to the totality of his criminality. This is not a case of a “discount” for multiple offending: there was but a single course of criminally negligent conduct, albeit one which had catastrophic consequences.

43. It follows that in my opinion the indicative sentences for manslaughter were excessive, the degree of accumulation applied to them was excessive, and the result was an aggregate sentence that was manifestly excessive and inappropriately “crushing” in the circumstances of the case.

Resentencing

44. I have set out at the outset of this judgment in summary form the relevant objective and subjective considerations, [58] and in my consideration of the comparable cases my assessment of the relativity of the subject case to them. Having regard to those matters, I indicate that were I imposing separate sentences for each individual offence, and after allowing a 25% discount for the pleas of guilty, those sentences would be, for each of the four manslaughters, 9 years (in lieu of 14 years 3 months).

    58. The objective circumstances are set out more fully in the judgment of Adamson J, below at [59]-[76], and the subjective considerations in the judgment of N Adams J, below at [228]-[235].

45. As the applicant must be resentenced, it is unnecessary to consider whether the indicative sentence for the grievous bodily harm, or those for the two actual bodily harms, were manifestly excessive. However, if imposing sentences for them individually, I would impose lesser sentences than the sentencing judge, as follows:

1. for the grievous bodily harm: 5 years (in lieu of 6 years); and

2. for each of the two actual bodily harms: 12 months (in lieu of 16 months).

46. In my judgment, an accumulation of 7 years (for three manslaughters, the grievous bodily harm and the two actual bodily harms), is appropriate to recognise the additional requirements of retribution and denunciation for each separate victim, in order to reflect the totality of the offender’s criminality. I would therefore impose an aggregate sentence of 16 years. When adjusted for the 25% discount for the plea of guilty, this equates to an implied starting point in excess of 21 years, which would still be the most severe sentence ever imposed in this State for vehicular manslaughter. At 16 years, it would be only two years less than the sentence imposed (after pleas of guilty) for multiple murders in Guode.

47. The trial judge did not find special circumstances, nor would N Adams J. I respectfully differ. Special circumstances are not confined to circumstances that indicate the desirability of a longer than standard period of parole, and extend to other circumstances that may point to the desirability of a shorter than standard non-parole period. [59] The facts that this is his first custodial sentence, that his incarceration will be more onerous by reason of his ADHD and his need for protection, but above all his good prospects of rehabilitation, which will be promoted by affording him an earlier than otherwise opportunity to commence restarting his life in his forties, but compromised by later release to parole, amount to special circumstances warranting a shorter than standard non-parole period. I would fix a non-parole period of 11 years.

    59. R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534 at [29]-[59] (Spigelman CJ; Mason P, Grove J, Sully J and Newman AJ agreeing).

Resolution

48. In my opinion, therefore, leave to appeal should be granted, the appeal allowed, the aggregate sentence imposed by the District Court quashed, and in lieu thereof the applicant should be sentenced to imprisonment for a term of sixteen years expiring on 31 January 2036, with a non-parole period of eleven years expiring on 31 January 2031.

49. In circumstances where Adamson J would dismiss the appeal, N Adams J would allow it and substitute a sentence of imprisonment for 20 years with a non-parole period of 15 years, and I would allow it and substitute a sentence of imprisonment for 16 years with a non-parole period of 11 years, there is a majority in favour of allowing the appeal, but no majority for any particular outcome. The traditional means for resolving such a situation is that the junior judge withdraws his or her proposed orders and agrees with those proposed by the senior judge. [60] In this case, that approach would require N Adams J to withdraw her Honour’s proposed orders, and agree with mine. However, in Woolworths v Kelly, [61] Kirby P (as he then was) explained that a more logical approach, which does not depend on the accident of judicial seniority, is to ascertain the “highest common denominator”. In this case, the highest common denominator is represented by the orders proposed by N Adams J. In order to secure a majority, I would therefore withdraw the orders I propose, and agree with those proposed by her Honour.

    60. Pennant Hills Restaurants Pty Ltd v Barrell Insurances Pty Ltd [1977] 2 NSWLR 827 at 866; O’Brien v Tanning Research Laboratories Inc (1988) 14 NSWLR 601 at 641.

    61. (1991) 22 NSWLR 189 at 200. See also Hawi v R [2014] NSWCCA 83 at [373]-[380] (Bathurst CJ), whose reasons also explain (at [366]-[369]) why it would not be appropriate to convene an enlarged bench to resolve the difference – namely that it is not clear that there is power to do so, that doing so would not necessarily produce a majority in favour of any particular outcome, and that doing so might potentially deprive the appellant of what is presently a successful appeal. To those reasons it might be added that a hearing before an enlarged bench, three members of which had already made up their mind, would not be procedurally fair.

50. ADAMSON J: Samuel Davidson (the applicant) pleaded guilty to the following seven offences which arose from his driving a motor vehicle on 1 February 2020:

1. Four offences of manslaughter (sequences 1, 2, 3 and 4), which caused the deaths of four children: Angelina Abdallah, Siena Abdallah, Antony Abdallah and Veronique Sakr;

2. One offence of aggravated dangerous driving occasioning grievous bodily harm (ADDOGBH) against Charbel Kassas (sequence 26); and

3. Two offences of cause bodily harm by misconduct in charge of a motor vehicle (CBHMV) (sequences 15 and 16) against Mabelle Kassas and Liana Abdallah.

51. Each of these offences was committed when the car which the applicant was driving mounted the kerb and hit seven children who were walking together on the footpath on their way to buy ice-creams after a family function.

52. On 9 April 2021, Bennett SC DCJ (the sentencing judge) sentenced the applicant to an aggregate term of imprisonment of 28 years with a non-parole period of 21 years, commencing on 1 February 2020. The applicant will be eligible for release on parole on 31 January 2041.

53. The offences, the victims and their ages as at 1 February 2020, the maximum penalty and the implied indicative sentences (before the discount of 25%) and the indicative sentences (after the discount of 25%) are as follows:

Sequence	Offence / Crimes Act 1900 (NSW)	Victim / age	Maximum penalty	Implied indicative sentence before discount of 25%	Indicative sentence after discount of 25%
1	Manslaughter, s 18(1)(b)	Angelina Abdallah (12 years old)	25 years’ imprisonment	19 years’ imprisonment	14 years, 3 months’ imprisonment
2	Manslaughter, s 18(1)(b)	Siena Abdallah (8 years old)	25 years’ imprisonment	19 years’ imprisonment	14 years, 3 months’ imprisonment
3	Manslaughter, s 18(1)(b)	Antony Abdallah (13 years old)	25 years’ imprisonment	19 years’ imprisonment	14 years, 3 months’ imprisonment
4	Manslaughter, s 18(1)(b)	Veronique Sakr (11 years old)	25 years’ imprisonment	19 years’ imprisonment	14 years, 3 months’ imprisonment
26	ADDOGBH s 52A(4)	Charbel Kassas (11 years old)	11 years’ imprisonment	8 years’ imprisonment	6 years’ imprisonment
15	CBHMV s 53	Mabelle Kassas (13 years old)	2 years’ imprisonment	1 year 8 months’ imprisonment	1 year and 4 months’ imprisonment
16	CBHMV s 53	Liana Abdallah (10 years old)	2 years’ imprisonment	1 year 8 months’ imprisonment	1 year and 4 months’ imprisonment

54. The applicant seeks leave to appeal against his sentence on the following grounds:

1. The sentencing judge erred in holding that there was no causal link between the applicant’s Attention Deficit Hyperactivity Disorder (ADHD) and the commission of the offences; and

2. The sentence imposed is manifestly excessive.

The sentence hearing

The evidence tendered

55. The Crown tendered a statement of agreed facts. The Crown also tendered a map of the area in which the offending occurred; a Computer Assisted Design (CAD) map; CCTV footage of the applicant’s driving which was shown in court in the sentence hearing; and the applicant’s criminal and custodial histories (which showed that he had no criminal history although there were some traffic infringements).

56. The Crown also tendered nine victim impact statements, some of which were read in Court.

57. The applicant tendered two reports by Dr Richard Furst, forensic psychiatrist; a letter of apology from the applicant to the Court; references from each of his parents and his employer and an affidavit of his solicitor, who was not cross-examined. The applicant did not give evidence at the sentence hearing.

58. To the extent relevant this evidence will be summarised later in these reasons.

The facts found by the sentencing judge (largely based on the agreed facts)

59. The following narrative is based on the statement of agreed facts which was reflected in the sentencing judge’s reasons (and is largely derived from the Crown’s submissions).

The applicant’s consumption of alcohol and prohibited drugs

60. On 1 February 2020, the applicant, with his friends and flatmates, including Daniel Newman and Daniel Smith, drank vodka cruisers, beer and rum. The applicant commenced drinking at about 7:00am and had his last drink at about 7:40pm. He had also drunk the night before and did not eat while drinking on 1 February 2020. Sometime after 11:00am, he snorted cocaine. Sometime after 4:45pm, he also used a quantity of 3,4-methylenedioxymethamphetamine (MDMA).

The trip to the petrol station

61. At some stage in the evening of 1 February 2020, there was a discussion about the applicant and one of his flatmates (Mr Newman) owing money to the other flatmate (Mr Smith). At 7:30pm, the applicant and Mr Newman left their house in the applicant’s Mitsubishi Triton dual cab 4-wheel-drive utility vehicle. The applicant drove to a liquor store where they made a purchase and withdrew $120 in cash. The applicant then drove sharply into the driveway of a petrol station. He parked and waited for Mr Newman who went to the store. While Mr Newman was in the store, the applicant sounded his horn repeatedly. On Mr Newman’s return, the applicant accelerated sharply, left the petrol station at speed and sped through a red light as he turned right onto Statham Avenue, Oatlands. His driving was depicted on the CCTV footage. The conditions were dry, and the road was in a good condition.

The return journey

62. At about 7:45pm, the applicant turned onto Bettington Road, Oatlands and travelled south. Angele Wakim was also driving south along Bettington Road, at about 60kph with one adult and two child passengers in her car. She saw the applicant drive very close to the rear of her vehicle and then swerve from side to side in an effort to get past her. She saw that both males in the car were shirtless and laughing. The sentencing judge described the applicant’s manner of driving as “menacing”.

63. As Ms Wakim approached a roundabout, at the corner of Bettington Road and Felton Road, the applicant crossed on to the incorrect side of the road, and overtook her car. As the applicant passed Ms Wakim, Mr Newman stuck his middle finger up at her. She then watched the applicant briefly stop his vehicle at the roundabout on the wrong side of the road while a car exited the roundabout. The applicant then drove through the roundabout in an anti-clockwise direction, on the wrong side of the road. Two other witnesses in a motor vehicle, Chief Inspector Hall and Ms Hall, also saw this occur. Ms Hall observed the applicant laughing, being quite animated and also sticking his middle finger up. Chief Inspector Hall saw a motor bike swerve sharply towards the gutter as the applicant drove through the roundabout. He also observed the applicant’s vehicle being driven at high speed on the wrong side of the road and rocking from side to side.

64. When the applicant came to a red light at an intersection with Pennant Hills Road, he edged his vehicle across the stop line, looked in both directions, and then accelerated abruptly, crossing four lanes of traffic against the red light. On the basis of the CCTV footage, at least six vehicles passed in front of the applicant’s vehicle on a green light. The red light at that intersection lasted only 40-60 seconds.

65. The applicant travelled south on Bettington Road, which sloped slightly downward as he approached a right-hand bend in the road. His Honour observed that, at this stage, the applicant was driving significantly faster than the sign-posted speed limit of 50kph, as revealed by his appearing as just a “flash” on the CCTV footage. Expert analysis of the CCTV footage resulted in a conservative estimate of the applicant’s speed at this point (the right-hand bend) of at 122-125kph. Expert analysts estimated that a vehicle on the applicant’s trajectory could accommodate no more than a corner speed of approximately 75kph on the approaching bend. Data retrieved from the applicant’s vehicle revealed a maximum speed of 133kph prior to reaching the bend, with a slight deceleration to 111kph at the point of impact. Analysis of the vehicle data revealed that, 4.5 seconds prior to impact, the accelerator was completely depressed and that the brake pedal was not engaged any time in the 5 seconds before the impact.

The victims

66. The seven victims, who were siblings and cousins, had left a family function to get some ice-cream. They were walking slowly along the footpath of Bettington Road in a southerly direction on the left (eastern) side of the road. The CCTV footage depicted the victims walking along the footpath, where, at about 7:50pm, approximately ten minutes before sunset, as his Honour found, they were behaving lawfully and walking where they were entitled to be.

The loss of control of the vehicle

67. At about 7:50pm, the applicant entered the right-hand bend in the road and lost control of the vehicle due to the excessive speed. The total length of the journey from the applicant’s home to the service station and back to where the collision occurred was approximately 5.3km.

The consequences

68. The applicant’s vehicle mounted the kerb and struck all seven children from behind, dragging some of them along a cyclone fence that bordered a golf course.

69. Four of the seven children were killed almost instantly. They were 12-year-old Angelina Abdallah, 8-year-old Sienna Abdallah, 13-year-old Antony Abdallah, and 11-year-old Veronique Sakr. The other three children were injured, 11-year-old Charbel Kassas critically.

70. Neither the applicant nor Mr Newman was injured. When they got out of the vehicle, Mr Newman attended to Charbel Kassas. The applicant appeared distressed and said, “What have I done? I’ve killed people. I am going to gaol.”

71. Members of the community rushed to the scene of the collision and assisted. Emergency services arrived soon afterwards. The applicant was arrested and has remained in custody ever since.

72. It was not long before family members came to the scene and were confronted with the terrible sight of four corpses and three injured children. His Honour described the injuries to the dead children as “horrific”. Details of the injuries were set out in detail in the agreed facts and judgment on sentence. The direct cause of death of each of the four children was multiple blunt force injuries.

73. As referred to above, Charbel Kassas, aged 11, survived but was in a critical condition on impact. He was taken to Westmead Children’s Hospital and required surgery for a severe brain injury and high impact trauma to the head and face. He spent 13 days in the intensive care unit. Expert opinion confirmed that he sustained a significant injury to the brain with likely long-term impacts on his cognitive and social abilities, resulting in lifelong disabilities and poor quality of life.

74. Mabelle Kassas, aged 13, sustained a 3cm deep laceration to her right thigh requiring sutures. She also experienced pain and swelling. Liana Abdallah, aged 10, sustained a 5cm laceration to her right eyebrow and pain. An expert opined that she will have a significant facial scar.

The level of the applicant’s intoxication

75. A roadside breath test conducted at 8:33pm returned a high-range reading of 0.182g of alcohol in 210 litres of breath which measures blood alcohol concentration (BAC). At 9:35pm, a breath analyser at a police station returned a high range BAC reading of 0.150. A blood and urine analysis performed at 10:45pm indicated a BAC reading of 0.142. That analysis also indicated 0.12mg/litre of a cocaine by-product, 0.13mg/litre of MDMA and less than 0.01mg/litre of 3,4-methylenedioxyamphetamine (MDA).

76. Expert evidence confirmed that the applicant would have had “very substantial impairment of driving skills given the blood alcohol concentration … at the time of collision”. Any effect from the MDMA would have been minor compared to the alcohol. The effect of the cocaine was uncertain.

Other evidence

The reports of Dr Furst

77. Dr Furst noted that the applicant had been diagnosed with ADHD when he was five years old and reported that when the applicant was adolescent, several attempts made to treat him with Ritalin and Dexamphetamine were discontinued due to side effects (facial tics).

78. When the applicant was 19 years old, his sister died from cystic fibrosis. Dr Furst reported that the applicant engaged in binge drinking for a year or two but his alcohol consumption became more controlled by the time he was about 21.

79. Between the ages of 21 and 26, the applicant came to tolerate the ADHD medication but stopped taking it for fear of becoming dependent. In 2019, the applicant began taking this medication again but he abused it.

80. Between 2017 and 2019, the applicant used MDMA every 6 months or so.

81. The applicant told Dr Furst that he had no idea why he was driving at the time of the offences, noting he was never “silly” enough to drive after drinking and after consuming drugs often waited three to four days before driving. He expressed remorse to Dr Furst and said he had been seeing the prison chaplain and was in segregation.

82. In his first report, Dr Furst opined that the applicant met the diagnostic criteria for ADHD and Alcohol Use Disorder (Binge Pattern) and that the applicant suffered from ADHD at the time of the offending. Dr Furst said that impulsivity is a “core symptom of ADHD”, which was characterised by doing things without thinking through the harmful consequences and “[the applicant’s] decision to drive in the first place … whilst intoxicated, was probably also influenced by his ADHD.”

83. Dr Furst opined that:

“… although the primary cause of his aggravated dangerous driving was probably his intoxication with alcohol … I am of the opinion that his ADHD pre-disposed [him] to drink excessively in the first place”.

84. Mr Furst recorded that the applicant had told him:

“I have never been that silly to get behind the wheel [after drinking or using drugs] … If I went to a rave, I’d give 3 or 4 days clearance [before driving again] … I don’t understand why.”

85. Dr Furst was not required for cross-examination.

The references tendered on behalf of the applicant

86. The applicant’s father, in a reference dated 7 February 2021, stated that:

“I believe [the offences are] totally out of character. His manner of driving and actions that day are beyond my comprehension. … I have never known [the applicant] to drive this way and I have drummed into him to never drink and drive. When living at home he would ring me to pick him up or he would use an Uber driver service if he had been drinking alcohol … He would not normally drink and drive.”

87. The applicant’s mother stated in her reference that, “[the applicant] would not normally drink and drive and clearly he was not in his right mind”.

88. In a reference tendered at the sentence hearing, the applicant’s employer, Leigh Smart, said that the applicant’s behaviour was out of character and there had been no instances of alcohol or drug use while driving. Mr Smart said that the applicant worked as a truck driver in a heavily regulated industry in which the applicant would be subject to regular drug and alcohol testing, such as when stopping at road safety stations. Mr Smart also said that the employer had policies and procedures relating to alcohol consumption with which the applicant had always abided. Mr Smart said that, if there was alcohol present, the applicant planned ahead and did not drive, using Uber drivers and taxis instead. Mr Smart remembered one occasion when the applicant helped with a charity convoy for drought relief and refused alcohol at a “Thank you” event afterwards, as he knew he would be driving the next morning. Mr Smart said that the applicant “had a clear understanding of his responsibility for himself and others on the road”.

89. None of these references had been provided to Dr Furst.

The parties’ submissions to the sentencing judge

90. The parties relied on written and oral submissions at the sentence hearing.

The Crown’s submissions

91. The Crown included, as an appendix to its submissions, a 6-page digest of 10 cases of road-related manslaughter. None of the cases was said to be comparable.

92. The Crown submitted that the objective seriousness of all sequences apart from 15 and 16 (for which the objective seriousness was in the mid-to-high range) was high. In support of this submission, the Crown relied on the very substantial level of intoxication, the significant excess of speed, the manner of driving, the length of the journey and the number of road-users put in danger. The Crown submitted the applicant’s moral culpability was “extreme” because his conduct exhibited a complete abandonment of responsibility which put a significant number of lives at risk and made tragedy “almost inevitable”.

93. The Crown submitted that the following factors in the Crimes (Sentencing Procedure) Act 1999 (NSW) (the Act) were relevant to an assessment of objective seriousness but should not be double-counted as aggravating factors:

1. s 21A(2)(g) of the Act (substantial loss and damage);

2. s 21A(2)(i) of the Act (offence committed without regard to public safety); and

3. s 21A(2)(ib) (the offence involved a grave risk of death to other persons).

94. The Crown requested that, pursuant to s 30E(3) of the Act, the victim impact statements be taken into account on the basis that the harm done to the family is an aspect of the harm done to the community.

95. Further, the Crown relied on the references of the applicant’s parents and employer, to the effect that the applicant was aware of his responsibility not to drive when consuming alcohol and had displayed the maturity to understand the consequences of his actions and act accordingly.

(Emphasis added.)

308. Finally, his Honour said this at 342:

“It is difficult to say in this case that a new principle has been invoked because, essentially, the parity principle remains that stated by this Court in Lowe. The totality principle remains that stated by the Court in Mill. The real issue in this appeal is the interaction between the principles. One explanation of the source of the suggested disparity in the punishment of the appellant and Mr Savvas was said to be that Grove J imposed on Mr Savvas a lighter sentence than he might have done. Yet the sentence which Grove J imposed on Mr Savvas may have been no more than the application in that case of the aspect of the ‘totality principle’ which is designed to avoid the imposition of ‘crushing’ sentences.”

309. In MAK & MSK at [15] (extracted above at [298], this Court accepted that, on the one hand, each year in custody weighs heavier on a prisoner whereas on the other hand, as this Court observed in R v Knight [2005] NSWCCA 253; 155 A Crim R 252 (“Knight”) at [112], it is important to avoid the impression that a discount for multiple offending is being given in such cases. It is always a question of proportionality.

310. Since MAK & MSK, the notion of a “crushing” sentence has been accepted by this Court in the context of the application of the totality principle in some cases: see Jodeh v R [2011] NSWCCA 193 at [62]; Chaouk v R [2017] NSWCCA 295 at [62]-[63] and McLaren v R [2021] NSWCCA 12 by way of illustration. But in those cases, the word “crushing” was used to describe a sentence that was held to be manifestly excessive. In other cases, the notion of a “crushing” sentence has been recognised as but one factor which may determine whether a sentence is manifestly excessive. In Atai v R [2020] NSWCCA 302 at [88], (Bathurst CJ, with whom Price and I agreed) observed:

“The real complaint made by the applicant was that the sentencing judge misapplied the totality principle such that the overall effect of the sentence was crushing: see R v MAK; R v MSK [2006] NSWCCA 381; 167 A Crim R 159 at [15]-[18]. As was pointed out in GS v R [2016] NSWCCA 266 at [51], the description of the sentence as ‘crushing’ is but one of the matters taken into account in determining whether the sentence is beyond the range of sentences properly available to the sentencing judge.”

311. In GS v R [2016] NSWCCA 266, Gleeson JA (with whom Fagan and I agreed) observed the following in relation to the description of a sentence as “crushing” at [51]:

“The description of a sentence as crushing on the offender is but one of the matters that is taken into account in determining whether he is beyond the range of sentences properly available to the sentencing judge: R v Cumberbatch (2004) 144 A Crim R 253; [2004] VSCA 37 at [12] (Chernov JA, Vincent JA and Bongiorno AJA agreeing). In Paxton v R [2011] NSWCCA 242 Johnson J (Tobias AJA and Hall J agreeing) explained at [215]:

‘An assessment whether a particular sentence is a ‘crushing sentence’ must have regard to the offence or offences committed by the offender, the maximum penalties and standard non-parole periods relevant to those offences, and all objective and subjective factors which should be appropriately brought into account on sentence, together with principles concerning accumulation, concurrency and totality. As Grove J observed in Ta'ala v R [2008] NSWCCA 132] at [42], ‘justice is individual and each offence and each offender requires assessment’.’”

312. Similar observations were made in Sivell v R [2019] NSWCCA 77 by Beech-Jones J (as his Honour then was) (with whom McCallum JA and Hoeben CJ at CL agreed) who observed the following at [122]:

“Where the effect of one or more sentences imposed on an offender is such that their total impact might be said to have a ‘crushing impact’, that of itself will not be sufficient to establish that the sentence(s) are manifestly excessive. Instead, the correct position is that one matter that is ‘considered under the totality principle is the proposition that an extremely long total sentence may be ‘crushing’ upon the offender in the sense that it will induce a feeling of hopelessness and destroy any expectation of a useful life after release’ (R v M.A.K.; R v M.S.K. [2006] NSWCCA 381 at [17]). Nevertheless, the ‘sentencing court must, however, take care when applying the totality principle’ in that ‘[p]ublic confidence in the administration of justice requires the Court to avoid any suggestion that what is in effect being offered is some kind of a discount for multiple offending (R v M.A.K.; R v M.S.K. at [18]). The ultimate question is whether the sentence imposed bears reasonable proportionality to the objective gravity of the offences for which the applicant is to be sentenced (ZA v R [2017] NSWCCA 132 at [84]). As Doyle CJ (with whom Debelle and Besanko JJ agreed) stated in R v E (2005) 93 SASR 20; [2005] SASC 332 at 30 [38]:

‘Care must be taken in using the concept of a crushing sentence. Not uncommonly, for particularly serious crimes, a sentence that is crushing in its effect must be imposed. The use of that term does not imply that when a very heavy sentence is called for, it is appropriate for the court to reduce it simply because to the offender the sentence may be crushing. At the end of the day if that is what is called for, that is the sentence that must be imposed’.”

313. In R v Hraichie (No 3) [2019] NSWSC 973 at [350], Johnson J emphasised that the idea of a “crushing” sentence pertains largely to the offender’s subjective perception which should not override other considerations:

“It has been observed that an extremely long total sentence may be crushing upon an offender, in the sense that it may induce a feeling of hopelessness and destroy any expectation of a useful life after release, and that this effect both increases the severity of the sentence to be served and also destroys such prospects as there may be of rehabilitation and reform: R v MAK (2006) 167 A Crim R 159 at 164; [2006] NSWCCA 381 at [17]. A sentencing court must, however, take care when applying the totality principle, keeping in mind that public confidence in the administration of justice requires the Court to avoid any suggestion that what is in effect being offered is some kind of discount for multiple offending: R v MAK at 164-165 [18]. The principle of totality is directed to the broader question whether the total sentence is proportionate to the Offender’s overall criminality and is not dependent upon the subjective views of the Offender: ZA v R at 126 [81]-[82].”

314. This Court has approached the concept of a “crushing” sentence on the basis that it forms part of the assessment of whether a sentence is manifestly excessive. There has been no clear acceptance in this Court that Postiglione is authority for the proposition that there is a second limb of the totality principle which requires a court to ensure that a sentence is not “crushing”. It is to be noted that the decision in Pearce post-dates the decision in Postiglione and makes no reference to any such second limb of the totality principle.

315. In ZA v R [2017] NSWCCA 132 (“ZA”) Johnson and Fullerton JJ (Payne JA agreeing) observed the following at [71]-[73]:

“In this context, it has been said that the totality principle serves to ensure that an offender is not subjected to a ‘crushing sentence’: Postiglione v The Queen at 304, 308.

Only Kirby J in Postiglione v The Queen (at 340), has suggested that there are two tasks or stages to the totality principle. No other member of the High Court has adopted a similar approach. It will be recalled that Kirby J was a strong supporter of two-stage sentencing as opposed to the instinctive synthesis approach: Johnson v The Queen at 626-627 [40]-[44]. This may serve to explain his Honour’s views in Postiglione v The Queen. It does not represent the law as stated by the High Court.

There has been no acceptance by the High Court that there is a two-stage approach to totality, with the initial focus being on objective factors and the second stage on subjective considerations. Such an approach would be inconsistent with the High Court’s rejection of two-stage sentencing in favour of the instinctive synthesis approach.”

316. Their Honours went on at [78] to observe, “[t]o attempt to erect, as the applicant seeks to do, a second limb of the totality principle which concentrates on the offender’s subjective circumstances to determine whether the total sentence is ‘crushing’, is not supported by authority” before citing the decisions in Jarvis v The Queen (1993) 20 WAR 201, R v E (2005) 93 SASR 20; [2005] SASC 332, Azzopardi v R (2011) 35 VR 43; [2011] VSCA 372 (“Azzopardi”) and R v Zaydan [2004] VSCA 245.

317. The approach in ZA was referred to with approval in Hall v R [2021] NSWCCA 220 at [87] (R A Hulme J, with whom Leeming JA and Campbell J agreed).

318. Recently, in Australian Building and Construction Commissioner v Pattinson [2022] HCA 13, the High Court considered the scope of the power conferred on the Federal Court of Australia by s 546 of the Fair Work Act 2009 (Cth) to impose civil pecuniary penalties in respect of contraventions of the civil remedy provisions of that Act. The majority (Kiefel CJ, Gageler, Keane, Gordon, Steward and Gleeson JJ) made no reference to the totality principle in considering that question, but Edelman J, in dissent, did. His Honour noted three instances where the law concerning civil penalties “replicates the approach of the criminal law in ensuring that a penalty does not exceed what the law requires that an offender deserves” (at [93]). The first of those was the totality principle which was described in these terms at [94] (I have inserted the relevant authorities in lieu of the first two footnotes for ease of reference):

“The first instance is the totality principle. ‘……In criminal law, an aspect of [the totality] principle is to prevent an outcome where ‘the imposition of a cumulative sentence [is] incommensurate with the gravity of the whole of [the offender's] proven criminal conduct or ... due deserts’ [Mill; and R v Knight (1981) 26 SASR 573 and 576]. A second aspect of the totality principle in criminal law is that the penalty should not be ‘crushing’ in light of the offender's record and prospects [Postiglione at 304, 308, 340-1]. Both aspects of this principle have been repeatedly applied in relation to civil penalties to ensure that the penalty is ‘proportionate to the gravity of the [contraventions]’ or, put differently, to ensure that the penalty is not ‘out of proportion to the overall misconduct’ and is ‘just and appropriate’.”

(Emphasis added.)

319. Although that case concerned civil pecuniary penalties, Edelman J accepted, citing Postiglione, that a second aspect of the totality principle in criminal law is that the penalty should not be “crushing” in light of the offender's record and prospects. But his Honour said nothing in that judgment that suggests any departure from the principle of proportionality: a sentence must still be proportionate to the gravity of the crime. A person sentenced to a lengthy term of imprisonment may well consider the sentence to be “crushing” but in many cases a long sentence may be the proportionate response to the circumstances of that case.

320. So, how is the question of whether error is established in the application of the totality principle to be assessed? Although there are numerous decisions of this Court in which the totality principle has been considered, I have found the observations of Redlich JA in Azzopardi to be of particular assistance on the question of how to assess whether there has been inadequate concurrence having regard to the need for proportionality. His Honour also considered the submission, as in the present case, that the sentence was “crushing”. From [56] his Honour attempts to answer to the question: “When is a sentence proportionate to or a just and appropriate measure of the offender’s overall criminality”. His Honour observed the following at [58]:

“Callaway JA said in R v Aleksov [[2003] VSCA 44 at [54]], that just like in the case of manifest excess, whether the total effective sentence offends the principle of totality is often a matter of impression. The factors which combine to inform the instinctive synthesis are those which also determine whether an individual sentence is manifestly excessive, namely the objective gravity of the offence, current sentencing practice, the maximum sentence, matters in mitigation and matters personal to the offender. Hence it is often said that the question of whether a sentence is manifestly excessive does not admit of much elaboration. While those factors enable the identification of a relevant range of sentences available for that offence, more subtle considerations are at work in determining the aggregate sentence which sufficiently reflects the offender’s total criminality. Whatever comfort a sentencing judge may derive from the fact that an intermediate appellate court can as a “matter of impression” identify when a sentence infringes the principle of totality, the content of the principle remains unstated.”

321. At [62], his Honour spoke of the need to adjust the sentence to comply with the totality principle and then observed at [65]:

“This adjustment reveals an inherent tension in the sentencing judge’s discretionary function. It seems to run counter to the theory that the offender should receive his full measure of punishment for each crime he commits [Jarvis v R (1998) 20 WAR 201 at 215 per Anderson J]. It may be misunderstood as the court not treating each offence as seriously as it would have if the offender fell to be sentenced for that offence alone, thereby devaluing the effect of each offence on its victim, relegating the victims to mere statistics [Director of Public Prosecutions v Solomon (2002) 36 MVR 425 at 429 and 430, [30] per Winneke P]; and treating the offender as though he was able to have committed many of the offences almost with total impunity [Director of Public Prosecutions v Grabovac [1998] 1 VR 664 at 684 per Ormiston JA].

322. Finally, at [69] his Honour observed the following in response to the complaint that the sentence was “crushing”:

“Azzopardi described his sentence as ‘crushing’ …. The Crown submitted that the notion of a crushing sentence was therefore one usually relied upon by older offenders. The applicant’s argument proceeded upon the false but often stated assumption that a crushing sentence and one that infringed totality were the same. Whether a sentence offends the principle of totality is directed to the broader question whether the total sentence is proportionate to the offender’s overall criminality. It is not dependent upon the subjective views of the offender. Thus a sentence may offend the totality principle without being ‘crushing’. It may be too long without destroying any reasonable expectation of a useful life after release [Jarvis v R (1998) 20 WAR 201 at 216 per Anderson J]. On the other hand, a crushing sentence may not necessarily offend the totality principle though it may provide an indicator that it has infringed the principle. The subjective effect of a total effective sentence upon the offender must be put in perspective. While relevant, it cannot be regarded as of paramount importance. Hence in R v Vaitos, O’Bryan J rejected the notion that a richly deserved sentence should be reduced because the offender may feel crushed by it [R v Vaitos (1981) 4 A Crim R 238 at 301]. The overriding principle is that the sentence ‘should fairly and justly reflect the total criminality of the offender’s conduct’ [(1998) 20 WAR 201 at 207 per Ipp J].”

323. Despite all of the statements of principle to which I have already referred, there has been little judicial consideration of how to determine when there has been insufficient regard to the totality principle in cases of manslaughter by criminal negligence where one negligent act has caused multiple deaths. The applicant relied on the decision of the South Australian Court of Appeal in Bubner v R [2022] SASCA 27 (“Bubner”) to the effect that in such cases most of the purposes of punishment will be reflected in the sentence on the first count. Adamson J has extracted [59] of Bubner above at [133]. The applicant also cited R v Wooldridge (2015) 123 SASR 422; [2015] SASCFC 125 at [80] in support of the proposition at [59] of Bubner.

324. Wooldridge concerned an appeal from a sentence for culpable driving where, like this matter, four deaths occurred, as well as an instance of serious harm. The case is very different factually and also by virtue of the charges the appellant faced: he was not charged with manslaughter but with the South Australian equivalent of s 52A of the Crimes Act, albeit with a maximum penalty of 15 years’ imprisonment. I do not rely on this decision as a “comparable” case; it is far from it. But it is the only decision I have found which has considered the application of the totality principle when one criminal act causes four deaths and/or serious injury.

325. The dangerous driving in Woolridge was one of inattentiveness and the driver had led a “blameless” life for 65 years. In that context, the Court (Gray ACJ, Peek and Nicholson JJ) observed the following at [25]:

“In this case, the appellant has been charged with, and had to be sentenced for, five separate offences. This was so even though the appellant committed just the one act of dangerous driving which caused just the one accident. The consequences of such a single act of driving will be, as the judge pointed out, largely a matter of happenstance or chance. It is possible that no one will be killed or injured or that one or a number of persons will be killed or injured. In this case, the appellant’s dangerous driving had the catastrophic consequence that four people were killed and another very seriously injured.”

326. Their Honours went on to observe the following at [80]:

“… [T]he sentence that would have been imposed had there been just the one offence would need to be significantly increased. However, this again has to be considered in the context that even though the legal culpability has been increased, the moral turpitude has not changed and all of the purposes of punishment, but for retribution or denunciation (as explained earlier), have been fully reflected in the sentence for the first count. The extent of any concurrency ordered must also take into account that it will be a question of happenstance as to whether one person or two persons or in the case of, perhaps, a minibus 20 persons, are killed or injured.”

327. The sentencing principle derived from this decision is that the application of the totality principle where the one act of criminal negligence has caused multiple deaths requires a consideration of whether all of the relevant purposes of sentencing come into play when setting the degree of accumulation between sentences, or whether most of the purposes of sentencing will be met by the sentence imposed on the first count favouring greater concurrence.

328. I am unaware of any decision of this Court in which such a sentencing principle has been held to be applicable in the context of multiple deaths caused by criminal negligence. Although there is some force in Mr Odgers SC’s submission that it is applicable in this case, I would expressly reserve my position on this issue.

Ground 2: Conclusion

329. As stated above at [294], I am satisfied that a starting point of 19 years imprisonment’ for each of the four separate counts of manslaughter is too high in the circumstances of this case. The question is whether that finding leads to the conclusion that, after the application of the totality principle, the aggregate sentence is manifestly excessive.

330. In any case concerning multiple victims the proper application of the totality principle will invariably mean that an offender will serve less time in custody for the criminality pertaining to each count and each victim than would be the case had there only been one victim and/or one charge. This consequence of the proper application of the totality principle may well leave victims of crime feeling that the offender has received little additional punishment in relation to the offences committed on them. In a factual scenario that arises more commonly in this Court, a paedophile who sexually assaults numerous children on numerous occasions will, after the application of the totality principle, usually receive a relatively short cumulative increment for each additional sexual assault. This is the case even though, unlike the present case, the offender has committed numerous discrete acts in sexually assaulting each child. By further way of analogy, if a driver acting in a criminally negligent manner, such as this applicant, collided with a school bus and killed 20 children, the application of the totality principle may lead to a result in which there is a relatively short portion of the total sentence attributable to each additional death. That is not to say that the harm to the victims and the community as a result of those deaths was any the less; clearly the unspeakable loss for the families of each child would be the same. But the fact that the proportion of the sentence which could be seen to reflect each death was lower than it would have been had there only been one death is a consequence of the proper application of the totality principle.

329. I have referred above at [309] to the note of caution expressed by Johnson J (Mason P and Barr J agreeing) in Knight that, when applying the totality principle, it is important to avoid the impression that a discount for multiple offending is being given. That case concerned an offender who was sentenced in relation to over 30 separate property offences. In that context, his Honour observed the following at [112]:

“The mechanism of making some sentences cumulative and others concurrent (or partly so) may be used where the aggregate of sentences imposed in respect of each count exceeds the appropriate total sentence: R v Myers [2002] NSWCCA 162 at paragraph 34. At the same time, it is necessary to ensure public confidence in the administration of justice by imposing sentences which do not suggest that multiple offences will be punished in the same way as one or two offences: R v Wheeler [2000] NSWCCA 34 at paragraphs 36-37.”

332. This passage in Knight was cited in MAK & MSK at [18], a passage which is commonly cited in cases concerning the application of the totality principle. But the decision in Regina vWheeler [2000] NSWCCA 34 (“Wheeler”) from which the quote in Knight is taken is not so commonly cited. In Wheeler, Sully J (with whom Carruthers J agreed) was considering an appeal by an offender charged with multiple serious armed robberies committed whilst on conditional liberty with a previous criminal record. In that context, his Honour referred to the need to apply the totality principle (at [35]) and then observed the following at 36-37:

“The countervailing factor, no less legitimate, is the need to ensure public confidence in the administration of criminal justice; and, in particular, to ensure that there does not emerge in the community at large a perception that there is not all that much to choose between the person who commits one or two offences, and the person who commits six or seven offences, for the reason that somehow or other they all manage to finish up with effective sentences between or among which there is hardly anything in practical terms to choose.

It needs to be clearly understood by all concerned that a person who commits a deliberate series of discrete offences, - and the present applicant's case, is a good example of the kind, - he must not be left with the idea that by intoning references to the principle of totality as though it were some magic mantra, he can escape effective punishment for the offences which follow successively one upon another throughout the whole course of a studied and deliberate course of criminal behaviour.”

(Emphasis added.)

333. The applicant’s driving was a very serious example of criminally negligent conduct. Although he did not intend to cause death or grievous bodily harm to anyone, he is liable for manslaughter because his manner of driving fell so short of the standard of care which a reasonable person would have exercised, and which involved such a high risk that death or grievous bodily harm would follow that the manner of driving merited criminal punishment. His one act of criminally negligent driving had catastrophic consequences. When applying the totality principle in this matter, it was important to have regard to all of those consequences and the life lost in each case when arriving at an aggregate sentence; but it seems to me that it is also important to consider that it was the one criminal act which caused so much harm. Unlike the offender being considered by Sully J in Wheeler, the applicant did not “embark upon a deliberate series of discrete offences”.

334. The sentencing judge was faced with a difficult task in sentencing the applicant for the highest number of manslaughter charges arising from the one act of criminal negligence in NSW to date. His Honour’s sentencing reasons addressed the relevant factors on sentencing in a careful and thoughtful way. No patent error is disclosed in the sentence. Despite this, for the reasons I have set out in some detail above, I am satisfied that the aggregate sentence imposed is “unreasonable or plainly unjust”. I would uphold this ground.

Re-sentence

335. As Mr Abdullah acknowledged in his letter to the court, no sentence imposed will ever be enough for the loss the families of the deceased have suffered. But this Court is required to reconcile their grief with the application of the relevant sentencing principles and, by way of instinctive synthesis, arrive at the appropriate aggregate sentence to punish the applicant.

336. The applicant did not rely upon any additional material in the event that this Court came to re-sentence him.

337. I would adopt all of the findings made by the sentencing judge with regard to the objective seriousness, remorse, prospects of rehabilitation, the early plea, and the applicant’s prior good character. As the sentencing judge noted, the purposes of specific deterrence, protection of the community and rehabilitation are of less significance in this matter.

338. Although I would not uphold ground 1, the applicant’s ADHD was nonetheless relevant as part of his subjective case. As Dr Furst explained, ADHD is a disorder that interferes with functioning and to be diagnosed with it at such a young age is to have chronic and long-lasting symptoms.

339. Due to the publicity surrounding this matter and the risk of being killed by other inmates in mainstream custody, the applicant was placed in segregation for the first 11 months and at the time of sentence had been classified as a special management and protection inmate (“SMAP”). Such a classification is a form of protective custody which allows for limited contact with other inmates. A letter from the governor of the correctional centre where he was incarcerated at the time of sentence, dated 2 February 2021, confirmed that the applicant was physically separated from other inmates given his assessed high risk of assault due to his offence but was able to converse with a limited number of inmates through a physical barrier. I have had regard to the fact that his incarceration has been and will continue will be more onerous due to this fact as well as his ADHD and the impact of the COVID-19 pandemic.

340. No finding of “special circumstances” within the meaning of s 44(2) of the Sentencing Act was made by the sentencing judge given the length of the sentence imposed. I would impose a lesser sentence which raises the question of whether that question should be revisited. Most offenders in the lower courts (including the District Court) do have their non-parole periods reduced following a finding of special circumstances: see Brennan v R [2018] NSWCCA 22 at [86]. Despite this, I am satisfied that the sentence I would impose is of sufficient length to provide for an adequate period on parole.

341. For the reasons I have already provided, I would apply the totality principle in a manner which would allow for some accumulation for each subsequent offence. I am satisfied that the sentence I would impose acknowledges the dignity of each child who was killed by the applicant’s conduct.

342. This appeal has focussed on the appropriate sentence for the four manslaughter sentences. I am not persuaded that the indicative sentence for the count of aggravated dangerous driving occasioning grievous bodily harm to Charbel Kassas was excessive, but in re-sentencing the applicant I would fix a slightly lower indicative sentence in the exercise of my sentencing discretion. The same applies to the indicative sentences for the two summary offences of causing bodily harm by misconduct in charge of a motor vehicle.

343. I have applied the 25% discount for the utilitarian value of the plea of guilty to the indicative sentences. For the manslaughter offences the starting point for the indicative sentences before the application of the 25% discount for the early pleas of guilty was 14 years’ imprisonment. For the remaining three offences there has been some rounding down to avoid figures measured by years, months and days after the application of the discount. The indicative sentences are as follows:

1. Manslaughter (Angelina Abdallah):   10 years and 6 months

2. Manslaughter (Sienna Abdallah):      10 years and 6 months

3. Manslaughter (Antony Abdallah):      10 years and 6 months

4. Manslaughter (Veronique Sakr):        10 years and 6 months

5. Aggravated dangerous driving occasioning grievous bodily harm (Charbel Kassas):              5 years and 3 months

6. Cause bodily harm by misconduct in charge of a motor vehicle to Mabelle Kassas:                1 year and 1 month

7. Cause bodily harm by misconduct in charge of a motor vehicle to Leanna Abdallah:               1 year and 1 month

ORDERS

344. I would propose the following orders:

1. Grant leave to appeal.

2. Uphold the appeal.

3. Quash the sentence imposed on the applicant in the District Court on 9 April 2021 and, in lieu thereof, sentence the applicant to an aggregate sentence of 20 years’ imprisonment to commence on 1 February 2020 and expire on 31 January 2040. The aggregate non-parole period is 15 years’ imprisonment to commence on 1 February 2020 and expire on 31 January 2035.

4. The offence of manslaughter is a "serious violence offence" as defined in s 5A of the Crimes (High Risk Offenders) Act 2006 (NSW). Accordingly, I am obliged by s 25C of that Act to advise the applicant of the existence of that legislation and of its application to the offences he has committed.

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Endnotes

Amendments

17 April 2023 - [281] line 2 - word "partially" deleted

Decision last updated: 17 April 2023