Director of Public Prosecutions v Abdulrahman
[2021] NSWCCA 114
•11 June 2021
|
New South Wales |
Case Name: | Director of Public Prosecutions v Abdulrahman |
Medium Neutral Citation: | [2021] NSWCCA 114 |
Hearing Date(s): | 17 May 2021 |
Date of Orders: | 11 June 2021 |
Decision Date: | 11 June 2021 |
Before: | Garling J at [1] |
Decision: | (1) Appeal allowed; |
Catchwords: | SENTENCING – Crown appeal – manslaughter – offender on ICO for dangerous driving – consumes ice – drives through pedestrian crossing killing child – sentencing judge failed to address specific deterrence and community protection – sentence of 6 years and 10 months with non‑parole period of 4 years and 6 months manifestly inadequate – offender re‑sentenced |
Legislation Cited: | Children (Criminal Proceedings) Act 1987 (NSW) |
Cases Cited: | Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 40 |
Category: | Principal judgment |
Parties: | Director of Public Prosecutions (Crown) |
Representation: | Counsel: |
File Number(s): | 2019/279139 |
Publication Restriction: | Pursuant to s 15A of the Children (Criminal Proceedings) Act 1987, statutory non-publication applies to this matter in relation to the identity of the victim and any minor witness |
Decision under appeal: | |
Court or Tribunal: | District Court |
Jurisdiction: | Criminal |
Citation: | [2020] NSWDC 731 |
Date of Decision: | 25 September 2020 |
Before: | M L Williams SC DCJ |
File Number(s): | 2019/279139 |
JUDGMENT
GARLING J: I agree with the orders proposed by Beech-Jones J, and with the reasons his Honour gives.
The judgments of each of my colleagues adequately record the seriousness of the circumstances of these offences, and the lasting horror and tragedy inflicted by the respondent on the 12 year old victim, his family and his friend with whom he was walking to school.
BEECH-JONES J:This is an appeal by the Director of Public Prosecutions (the “Crown”) pursuant to s 5D of the Criminal Appeal Act 1912 (NSW) against an aggregate sentence imposed on the respondent for manslaughter and driving while disqualified. These offences arise out an incident when a speeding car driven by the respondent while he was affected by drugs, struck and killed a twelve-year old boy. As the boy is the victim of a crime, his name must not be published or broadcast (Children (Criminal Proceedings) Act 1987 (NSW); s 15A).
On 25 September 2020, the respondent appeared before Williams SC DCJ for sentence. He entered pleas of guilty. Associated with the manslaughter charge were two charges of possess prohibited drugs which were included on a notice filed by the prosecutor under s 32(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“Form 1” and the “Sentencing Procedure Act” respectively). The offence of driving while disqualified, being a summary offence, was included on a certificate prepared by a prosecutor for the purposes of s 166(1)(b)(i) of the Criminal Procedure Act 1986 (NSW).
On the same day, his Honour imposed on the respondent an aggregate sentence of 6 years and 10 months commencing on 6 October 2019 and expiring on 5 August 2026 with an aggregate non-parole period of 4 years and 6 months (R v Abdulrahman [2020] NSWDC 731). Subject to any intervention by this Court, the respondent will be eligible for release on 5 April 2024. The respondent was disqualified from driving for a period of 3 years from the time of his release from custody for the manslaughter offence and a concurrent period of 6 months for driving while disqualified.
The indicative sentences specified for each of the offences pursuant to s 53A(2) of the Sentencing Procedure Act, their maximum penalty, the applicable standard non-parole periods and the associated Form 1 offences were as follows:
| Offence | Maximum Penalty | Standard non- parole period | Indicative Sentence |
| Manslaughter S 18(1)(b) Crimes Act 1900 | 25 years imprisonment 3 years automatic disqualification from driving with 1 year minimum | Not applicable | 6 years 9 months imprisonment 3 years disqualification from driving |
| Form 1 offence attached to manslaughter offence: Possess prohibited drug – s 10(1) Drug Misuse and Trafficking Act 1985 | 2 years imprisonment | Not applicable | Not applicable |
| Form 1 offence attached to manslaughter offence – Possess restricted substance – s 16(1) Poisons and Therapeutic Goods Act 1966 | 6 months imprisonment | Not applicable | Not applicable |
| S 166 certificate: Drive motor vehicle while disqualified – s 54(1)(a) – Road Transport Act 2013 | 6 months imprisonment 6 months disqualification, 3 months minimum | Not applicable | 3 months imprisonment 6 months disqualification |
The Crown Appeal
On an appeal under s 5D, the Crown must demonstrate error of the kind identified in House v The King (1936) 55 CLR 499, 504 to 505 (see CMB v Attorney General for the State of NSW (2015) 256 CLR 346; [2015] HCA 9 at [54] per Kiefel, Bell and Keane JJ; “CMB”). Even if error is established, to justify resentencing an offender, the Crown must also “negate any reason why the residual discretion of the Court of Criminal Appeal not to interfere should be exercised” (CMB at [34] per French CJ and Gageler J and at [56] per Kiefel, Bell and Keane JJ).
There is scope for argument as to whether it is also necessary for the Crown on an appeal of this kind to also establish that the sentence was manifestly inadequate (see DPP v Burton [2020] NSWCCA 54 at [33] per Basten JA) although, on any view, the inadequacy of the sentence is a significant factor in considering the exercise of the residual discretion (see Manojlovic v R; R v Manojlovic [2020] NSWCCA 315 at [242] to [243] per N Adams J). It is unnecessary to consider this further because, by ground 2 of its appeal, the Crown contends that the sentence is manifestly inadequate and I would uphold that ground. I would also uphold part of ground 1 of the appeal, specifically, the contention that the sentencing judge failed to take into account the necessity to specifically deter the respondent from committing further crimes and the need to protect the community from him.
The Crown’s submissions were exclusively directed to the indicative sentence for manslaughter. Although the subject matter of the appeal is the aggregate sentence, the relative contribution of the indicative sentence for manslaughter to the total aggregate sentence is so large that the demonstration of patent error, manifest inadequacy or both in relation to the former will, in this case, demonstrate the same in relation to the latter.
The Offences
Tendered before the sentencing judge was an agreed statement of facts which his Honour summarised in the sentencing judgment. The following is taken from the agreed statement and other non-contentious evidence that was tendered at first instance.
On 4 October 2018, the respondent was convicted of driving a motor vehicle under the influence of drugs and resisting a police officer in execution of their duty. These offences were committed on 12 October 2017 when a vehicle he was driving collided with a sign located on a median strip. He was arrested by several police officers and had to be subdued. A blood sample reading showed the presence of amphetamines, cannabis and a benzodiazepine class drug. The respondent received a 12 month Intensive Correction Order (“ICO”) and was disqualified from driving for two years. Both the ICO and disqualification were still operative as at the date of the offences the subject of this appeal, namely 6 September 2019.
At about 8.35am on the morning of 6 September 2019, the respondent was “driving erratically and merging between lanes without indicating” as he drove along Lily Street, Hurstville. Other drivers had to take evasive action and brake to avoid a collision with the offender. The weather was dry and sunny. The agreed facts describe the traffic as “moderate”.
Lily Street widens into two lanes approximately 50 metres before a “T” intersection with Forest Road. On the opposite side of the T intersection to Lily Street is Hurstville Public School. Both lanes on Lily Street were marked with arrows indicating the turning options. The area was also clearly marked with signs and markings advising drivers it was a school zone and the maximum speed was 40 kilometres per hour between 8.00am and 9:30am on weekdays.
The respondent approached the T intersection in the right-hand lane on Lily Street. He faced a red traffic light. The cars travelling in both directions on Forest Road faced a green light and started to move. The pedestrian crossing on Lily Street showed a green light to pedestrians to allow them to cross the road. The victim walked onto Lily Street. According to the agreed facts, the respondent “did not slow down or brake before entering the intersection” even though the other cars on Lily Street had been facing amber and then red lights for 12 seconds.
When the victim was about half‑way across the pedestrian crossing, he was struck by the front bonnet of the respondent’s car. His 12‑year‑old friend was just behind him on the road and witnessed the collision. According to the agreed facts, the respondent was driving at a speed of approximately 65 kilometres per hour at the time of the collision. The respondent’s car drove across Forest Road. The traffic travelling in both directions on Forest Road applied brakes to avoid colliding with him.
The respondent applied the brakes about 13 metres after the stop line. He did not complete a right turn into Forest Road but instead mounted the kerb outside Hurstville Public School. His car dislodged a traffic light that was cemented into the footpath and crashed into a metal fence that bordered the school. When the car came to a complete stop the victim was thrown to the ground near the rear passenger side door of the vehicle. His head was near the rear end of the car. His body was partially underneath the car. He was bleeding heavily from his head.
Several bystanders including teachers from the school attempted to assist the victim. The police arrived. The agreed facts record as follows:
“While witnesses were providing first aid to the victim, the offender got out of the driver's seat. He looked at the body of the deceased. He collected his bag from the car. He got his mobile phone which was plugged in to a charger in the car. He deleted messages from his phone while standing on the footpath near his car. He smoked a cigarette. He did not assist or offer to assist as the witnesses were providing first aid.”
An ambulance and paramedics arrived. The victim was transported to Randwick Children's Hospital, but he was pronounced dead at 10:02am. The cause of death was multiple traumatic injuries to the head, chest and pelvis triggering cardiac arrest. His upper and lower limbs were fractured.
When police arrived at the scene, they approached the respondent. He was talking on his mobile phone. He told the police that "I'm talking to my family". He attempted to access his car saying he wanted to charge his mobile phone but was stopped. He told the police "I got hit by a car, it's not my fault". The agreed facts record that “[t]his was not true”. He admitted he did not have a driver’s licence.
The respondent also told the police that "I've got fucking PTSD. I need my medication." He attempted to access his bag, but the police stopped him. He was handcuffed and escorted to a caged vehicle. A search of the respondent’s car revealed two white codeine tablets. Inside his bag, police located a small clear resealable plastic bag containing two small diazepam tablets. His possession of these drugs constituted the two offences included on the Form 1.
The respondent was taken to hospital before being taken to the police station. At the hospital he told police that he was driving unlicensed. He said that he had used some cocaine "about 3 days ago" and "but I also take morphine every day. I [take] calmers every day". He said that he had not caused the accident. He said that his lights were green but that he had been hit on the side by another car. Again, this was untrue. The respondent declined to be interviewed at the police station.
The agreed facts record that a blood test revealed that in each litre of his blood there were the following intoxicating substances:
0.01mg amphetamine
0.26mg methylamphetamine
0.07mg methadone
0.25mg diazepam
0.12mg nordiazepam
0.04mg alprazolam
Amphetamine and methylamphetamine are illegal drugs. Methadone, diazepam, nordiazepam and alprazolam are all prescribed restricted substances. The agreed facts record their effect as follows:
“The offender was under the influence of the effects of methylamphetamine to the extent his driving ability would have been very substantially impaired and it is likely there would have been some additive impairment due to the combination of methadone, diazepam and alprazolam.
The level of methylamphetamine in his blood was well within the reported toxic to potentially fatal range. The concentrations of amphetamine and methylamphetamine in the offender's blood sample strongly suggest that the offender used methylamphetamine in the early hours of the morning on 6 September 2019. The levels of methadone, diazepam and alprazolam in the offender's blood were within the therapeutic levels. However, each of these three restricted substances is likely to have exacerbated the offender's driving impairment due to the other drugs.”
The Sentencing Judgment
In the sentencing judgment, his Honour summarised the agreed facts and noted the maximum penalty for manslaughter is 25 years imprisonment. His Honour then referred to factors affecting an assessment of the appropriate sentence for dangerous driving causing death as set out in the guideline judgment in R v Whyte (2002) 55 NSWLR 252; [2002] NSWCCA 343 (“Whyte”). His Honour noted that the aggravating factor identified in s 21A(2) of the Sentencing Procedure Act applied to this offence, namely, that the respondent was on conditional liberty at the time of the offending (at [41]). His Honour concluded that “insofar as is necessary to place the manslaughter charge on a scale, this is in the midrange, but very objectively serious” (at [42]). This aspect of the sentencing judgment is relevant to ground 1 of the appeal. Otherwise, I note the following five matters about the sentencing judgment.
First, his Honour noted the respondent’s criminal antecedents included previous periods in custody. His Honour noted that the respondent served a sentence of 12 months with a 6 month non-parole period in 2009 which followed the revocation of a periodic detention order. From May 2010 to May 2013, he served a sentence of 3 years imprisonment with a non-parole period of 2 years for firing a firearm in a public place (as well as assault occasioning actual bodily harm and supply prohibited drug) and an 8 month sentence with a 4 month non-parole period for affray commencing July 2010. The respondent served a sentence of 2 years and 6 months with a non-parole period of 2 years commencing June 2007 for accessory after the fact to manslaughter. He also served 3 months in custody following the revocation of his ICO. In addition, in 2002, he received a suspended sentence for demanding property with menaces with intent to steal. In 2008, he was convicted of driving with the low range prescribed concentration of alcohol in his blood and in 2014 he was convicted of driving while his licence was suspended.
Second, the sentencing judge described the history of the respondent’s abuse of drugs including his admission to “frequent use of heroin”. It seems that addressing his misuse of drugs was the intended object of the ICO. A “breach report” prepared in relation to the ICO described his response to supervision as “deemed to have been borderline” and notes that he was referred to a number of residential rehabilitation facilities but was not accepted due to his history of violence.
Third, his Honour noted the evidence given by the respondent and a psychiatrist, Dr Nielssen, which was directed to his remorse, his mental state and his willingness and capacity to address his substance abuse. His Honour noted that the respondent accepted he had taken ecstasy and ice on the day of the accident and methadone two days before and that he knew that those drugs affected his mental state. He agreed that he did not have a licence and he knew that by taking drugs he was in breach of the ICO (at [30]).
This evidence resulted in a positive finding and a non‑finding by his Honour that are not easily reconciled. Thus, his Honour noted Dr Nielssen’s recommendation that he complete all substance abuse related programs in custody and receive similar support on his release (at [34]). His Honour accepted “that is a powerful factor in support of a finding of special circumstances [under s 44(2B) of the Sentencing Procedure Act], which I make” (at [34]). The ratio of the non-parole period of the aggregate sentence to its total length was just under 66%. However, his Honour also found the respondent’s expressed willingness to rehabilitate himself should be “regarded with some caution”. Ultimately, his Honour made no express finding about his prospects of doing so (at [44]) or as to his prospects of reoffending. Otherwise, his Honour accepted the respondent’s “genuine expressions of remorse [in his evidence]” (at [39]).
Fourth, the sentencing judgment addressed some aspects of the respondent’s personal history beyond his antecedents and struggle with drug abuse. As at the date of the offence, he was 36 years old. His father is from Lebanon and his mother was born in Australia but is of Lebanese heritage. The respondent was born in Australia. He has five children, three of whom resided with his mother and twins who resided with their mother. He last worked in 2012 (at [33]).
According to some police facts, in 2002, when the respondent was 19 years old he was abducted, shot in the upper left leg and hit in the back of a head with a golf club (at [31]). Dr Nielssen recorded this incident as occurring when the respondent was 16 years old, suggested it caused post traumatic stress disorder (“PTSD”) and opined that was “likely to have been a significant contributing factor in the emergence of his substance use disorder”. This is doubtful given that it occurred when he was 19 and he was already abusing drugs by then. In his evidence before the sentencing judge, the respondent said he was shot again sometime after 2009 but he did not elaborate.
Fifth, His Honour noted that the victim’s father read to the Court a victim impact statement “which graphically describe[d] the tragic consequences of the accident and the long-term effects that his son’s death will have upon his family” (at [28]). The victim’s father stated that the loss of their son had “broken the completeness of our family, and has caused our entire family to descend into never-ending pain for the rest of our lives”. The victim’s father made particular reference to the respondent’s failure to rescue the victim as “absolutely breaking all moral bottom lines, and made our hearts chill”. The friend of the victim who witnessed his death read a victim impact statement describing the trauma and anxiety he feels from having watched his friend die.
Ground 1: Failure to take into account sentencing objectives
Ground 1 of the Crown appeal contends that the sentencing judge erred by failing to take into account (a) the need for general deterrence; (b) the need for specific deterrence of the respondent; and (c) the need to protect the community from the respondent.
Submissions
As formulated and argued, this ground of appeal had strong similarities to the Crown’s successful contention in R v Dong [2021] NSWCCA 82 (“Dong”) that the sentencing judge in that case failed to take into account community protection. In this case, as in Dong, the Crown’s submissions take as their starting point s 3A of the Sentencing Procedure Act which identifies each of the three matters identified in the ground of appeal and its end point the failure of the sentencing judge to expressly refer to those particular objectives in the sentencing judgment. With general deterrence, the Crown submitted that the failure to expressly address it was particularly significant because it “was a factor that needed to be given significant weight in the sentencing exercise”.
With specific deterrence and community protection, the Crown noted that detailed submissions were made to the sentencing judge about the respondent’s antecedents and risk of recidivism. It was submitted to the sentencing judge that the respondent’s “prior conviction for driving under the influence of drugs warrants a more severe sentence for reasons of retribution, deterrence and protection of society”. Before the sentencing judge, the Crown placed specific reliance on the following passage from Veen v The Queen (No 2) (1998) 164 CLR 465; [1998] HCA 14 at 478 (“Veen (No 2)”):
“…. the antecedent criminal history of an offender is a factor which may be taken into account in determining the sentence to be imposed, but it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence. To do so would be to impose a fresh penalty for past offences: ... The antecedent criminal history is relevant, however, to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind. Counsel for the applicant submitted that antecedent criminal history was relevant only to a prisoner's claim for leniency. That is not and has never been the approach of the courts in this country and it would be at odds with the community's understanding of what is relevant to the assessment of criminal penalties.”
The Crown submitted that, in light of the submissions made to the sentencing judge, the evidence of the respondent’s intractable drug usage and the absence of any finding by his Honour as to the respondent’s risk of reoffending or prospects of rehabilitation, it can be inferred that his Honour did not take into account specific deterrence or community protection.
In his written submissions, Senior Counsel for the respondent, Mr Odgers SC contended that, given the express reference by his Honour to section 3A, his Honour’s experience and the fact that the judgment was delivered ex tempore then it should not lightly inferred that a sentencing judge would overlook general deterrence given its significance to the sentencing exercise. He referred to R (Cth) v Nguyen; R (Cth) v Nguyen [2010] NSWCCA 331 in which Simpson J (with whom Hall and Garling JJ agreed) rejected a contention that it could be inferred from the absence of any express reference by a sentencing judge to general deterrence that it had been overlooked or given inadequate weight. Her Honour stated (at [44]):
“The issue of general deterrence is fundamental to any sentencing decision, and is known to be of particular importance in offences involving drugs. I would not infer that this was overlooked. Rather, I would infer that, by reason of its very primacy, it called for no express statement (although, I would add, it would generally be wise at least to record that it has been taken into account).”
Mr Odgers SC submitted that the same reasoning was applicable to the Crown’s contention in relation to specific deterrence and community protection especially given the findings of remorse and that his Honour referred to, without necessarily making a finding about, the respondent’s capacity to address his drug abuse.
Consideration
In the passage addressing the seriousness of the respondent’s offending summarised above (at [24]), his Honour stated at [37] that “the starting point [in sentencing] is also informed by the maximum penalty which is a yardstick in the sentencing process and the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act 1999”. His Honour then noted that manslaughter is a “markedly more serious offence” than dangerous driving occasioning death but nevertheless addressed a number of the factors identified in Whyte at [216]. Those factors all concerned the circumstances of the offending and not the offender. The guidelines in Whyte were formulated having regard to the characteristics of a “frequently recurring case” which was said to involve a young offender, with no or limited prior convictions and genuine remorse (at [204]). In specifying guidelines, Spigelman CJ drew on the Court’s experience before and after the publication of the guideline judgment in R v Jurisic (1998) 45 NSWLR 209 (“Jurisic”). His Honour emphasised the necessity for the sentences in such offences to property reflect considerations of general deterrence (Whyte at [142] to [143]; Jurisic at 233C-D per Wood CJ at CL).
In these circumstances and having regard to the observations in Nguyen, I am not satisfied that his Honour failed to have regard to considerations of general deterrence. To the contrary, I consider that addressing general deterrence was the unstated premise of the exercise that his Honour was undertaking. However, even allowing for the sentencing judgment having been delivered ex tempore, I am satisfied that his Honour failed to take into account the necessity for specific deterrence and the need to protect the community against further offending of a similar nature by the respondent. For the reasons just stated, those considerations play a reduced role in any direct application of Whyte as it effectively assumed, or at least its starting point was, that the offender was unlikely to reoffend. In this case, his Honour’s assessment of the respondent’s criminal history and his failure to make any express finding about his prospect of reoffending, including addressing his substance abuse, are explicable on the basis that his Honour only treated those matters as factors disentitling him to any leniency and not as potentially applicable in the manner stated in the above passage from Veen (No 2).
In Dong at [48] it was opined that, as the purposes of sentencing “often overlap [that] means, for many cases, if a sentencing judge gives proper consideration to general and specific deterrence then, in doing so, they will have addressed the protection of the community, including protection from the offender”. However, it was also noted that in some cases where the offender’s mental illness or other circumstances makes them a potential danger but also a poor candidate for general and specific deterrence “then the need to protect the community from them may be a very significant factor that needs to be separately and expressly considered by the sentencing judge, albeit in a manner consistent with Veen (No 2)” (Dong ibid). It was noted that that conclusion is more likely if the parties adverted to the potential danger posed by the offender in their submissions.
Similarly, in many cases where a sentencing judge refers to and makes findings about an offender’s criminal history, drug abuse, prospects of rehabilitation and reoffending, it will be very difficult to infer from the absence of any express reference to specific protection or community protection that they failed to address those factors. However, a contention that they failed to do so may be more readily accepted when the necessity to address those sentencing factors was the subject of a focussed submission. In this case, not only was there no express reference by the sentencing judge to those factors, there were no express findings on matters such as their prospects of reoffending. As noted, the Crown’s submissions specifically addressed this topic and made reference to the above passage from Veen (No 2). The respondent’s antecedents including his commission of the offence while subject to an ICO manifested “a continuing attitude of disobedience of the law”, “illuminate[d] his moral culpability” and, along with his unresolved history of drug abuse, “show[ed] his dangerous propensit[ies]” (Veen (No 2) supra). The necessity to specifically deter him and protect the community from him, while not imposing a disproportionate sentence, were especially strong factors in this case that had to be specifically addressed but were not.
Before concluding on ground 1, it is necessary to note another aspect of the submissions of Mr Odgers SC. In his written and oral submissions, Mr Odgers SC referred to the evidence concerning the efforts made by his client to address his problems with drug abuse in the immediate period prior to the offence. As noted, the “breach report” for the ICO referred to his being refused entry to a number of residential rehabilitation facilities due to his history of violence. Mr Odgers SC pointed to material from Corrective Services NSW which indicated that, during April and May 2019, he was at least trying to obtain access to such services but was apparently not receiving much assistance. Further, on 2 September 2019, which was four days prior to the offence, the respondent and his mother attended a hospital and he completed a drug and alcohol assessment. Two days later, he advised his ICO supervisor of this and that he expected to receive a response the following week. The Corrective Services notes record him stating that “he would like to get the support he needs while addressing his drug use because he no longer wants to be using now that his children are getting older and he wants to be there for them.”
Although this material was before the sentencing judge and could have been considered in making findings about the respondent’s prospects of reoffending, it was not referred to by his Honour. As noted, his Honour did not make any finding on this topic. The existence of this material only serves to reinforce, and not undermine, the contention that his Honour did not take into account the necessity to deter the respondent and protect the community from him. That said, I accept that this material shows that, during the period he was subject to the ICO, the respondent had insight into the effects of his substance abuse and made some efforts to address it.
It follows that I would uphold grounds 1(b) and (c) of the appeal but reject ground 1(a).
Ground 2: Manifest Inadequacy
Ground 2 of the Crown’s appeal contends that the sentence imposed was manifestly inadequate.
A finding that a sentence is manifestly inadequate does not follow from a conclusion that the result below was markedly different from sentences imposed in other like or similar cases but instead is warranted only if “the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons" (Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [58] cited in Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [59]; “Hili”). Ultimately, what “reveals manifest excess, or inadequacy, of sentence is consideration of all of the matters that are relevant to fixing the sentence” (Hili at [60]).
In support of its contention that the sentence was manifestly inadequate, the Crown pointed to various features of the offence and the offender; specifically his erratic manner of driving, his excessive speed, the timing and location of the collision being a busy suburban area with a number of schools on a Friday morning, his ingestion of drugs, his breach of the terms of his conditional liberty and the terrible impact of the offences. All of those matters have been addressed and can be accepted. The Crown also pointed to the respondent’s lack of remorse at the scene although, as noted, the sentencing judge found he was remorseful in his evidence. The Crown contended that he had a poor subjective case and the sentencing judge was “generous” in making the sentence partly concurrent with the three-month period he served following the revocation of his ICO. The Crown submitted that an assessment of moral culpability was critical to determining the appropriate sentence for manslaughter (citing R v Winter (2012) [2012] NSWCCA 218; 225 A Crim R 572 at [41] per McClellan CJ at CL). The Crown contended that the respondent’s moral culpability was high. The Crown further contended that the error in relation to ground 1 contributed to the imposition of a sentence that was “plainly unjust”.
Mr Odgers SC noted the sentencing judge’s finding that the offence was “in the mid-range”, although he accepted that his Honour treated it as “in the upper part of the midrange”, a finding Mr Odgers SC submitted was “open” and not challenged. He submitted that, given the respondent’s long standing drug addiction which he sought to address and his PTSD, it should not be found that his moral culpability was high and those factors warranted some leniency. He submitted that the acceptance at the time of sentencing that the respondent was remorseful was significant, especially given he was affected by drugs when he committed the offence.
While the sentencing judge’s assessment that the matter was in the “mid-range” was not the subject of direct challenge, I do not consider that much assistance can be gained from it. A review of manslaughter sentences in this context usually involves a consideration of cases within various subcategories which in this case are manslaughters by gross negligence or unlawful and dangerous act involving a motor vehicle. Bearing in mind that the factual circumstances that manslaughter entails can “vary from a joke gone wrong to facts just short of murder” (R v Blake Davis [2021] NSWSC 235 at [138]), it is unclear whether his Honour’s assessment that this case was “in the mid-range” concerned all possible permutations of manslaughter or was confined to vehicular manslaughters. It suffices to state that this was a very serious example of vehicular manslaughter.
Consistent with this, both parties drew the Court’s attention to various authorities concerning vehicular manslaughters similar to this case.
One of these decisions was Smith v R [2020] NSWCCA 181 (“Smith”), which the sentencing judge was referred to. In Smith, the offender was sentenced for one count of manslaughter along with three related offences on a s 166 certificate (possess prohibited drug, drive under the influence of drugs, and drive with high range prescribed concentration of alcohol in her blood). She was grossly intoxicated and had been driving dangerously for some distance, her driving described by one witness as “…the worst driving I have ever seen in all my life” (Smith at [8]). In Smith, the offender’s car travelled off the road, fishtailed, returned to the road and she drove for another 600 metres before colliding with the deceased’s car, killing her (Smith at [9]). After a 25% discount for her early plea of guilty, the offender was sentenced at first instance for manslaughter to 9 years imprisonment with a non-parole period of 6 years and 3 months. The sentence for manslaughter was set aside on an appeal to this Court as manifestly excessive. The offender was re-sentenced for that offence to a term of imprisonment for 7 years and 6 months, with a non-parole period of 5 years.
Mr Odgers SC submitted that the pre-discounted sentence imposed by this Court in Smith of 10 years was only a year higher than the indicative sentence in this case and the objective gravity of the manslaughter offence in that case was “extreme” given the period of time the offence took place over (at [42]).
The Crown drew attention to four matters that were said to differentiate Smith from this case. First, the background and the subjective case of the offender in Smith were accepted as engaging the principles in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 (“Bugmy”) including a diminution in her moral responsibility (at [33] and [41]). Bugmy has no application to this case. Second, unlike this case, the offender in Smith was not subject to conditional liberty at the time of the offending. Third, according to the Crown, while Ms Smith had previous convictions for PCA offences (at [14]), the respondent’s criminal record was “far lengthier and more serious and gave rise to Veen (No 2) considerations.” Fourth, the Crown pointed out that the sentencing judge in Smith found that it was extremely unlikely that she would reoffend “to the extent that she has offended in this case” (at [34]). Hence, the Crown contended that considerations of specific deterrence played a much lesser role in Smith (at [35]) than they should do in this case.
In R v Winter [2012] NSWCCA 218 (“Winter”), the offender experienced a medical episode. She was medicated and told not to drive but ignored the advice. After smoking cannabis she suffered a blackout while driving, lost control of the vehicle and killed two pedestrians. The offender had a criminal record for dishonesty and a driving record for speeding. The sentencing judge found that she had “good prospects of rehabilitation” although this Court was more circumspect (at [48] to [49]). Winter was a Crown appeal. This Court intervened and imposed a sentence of 7 years imprisonment with a non-parole period of 4 years. Prior to the discount, the head sentence was imprisonment for 9 years and 4 months. Mr Odgers SC noted that the offender in Winter had been warned not to drive and, unlike this case, was found to have lied to the sentencing judge (at [50]).
In Spark v R [2012] NSWCCA 140 (“Spark”) this Court dismissed an appeal against a sentence for two counts of manslaughter that was said to be manifestly excessive. The offender was driving while experiencing drug withdrawal after using methylamphetamine and amphetamines. He had never held a driver’s licence. He was on parole for car theft and engaged in a lengthy police pursuit. He drove erratically and at high speed. He eventually crossed to the opposite side of the road and collided with an oncoming car killing the driver and her 18-year-old daughter (at [15] to [16]). The offender was aged 23, with a lengthy criminal record (at [25]). The sentencing judge declined to find that he had good prospects of rehabilitation (at [30]).
Allowing for a 25% discount for the offender’s pleas of guilty, the sentence imposed at first instance in Spark for one count of manslaughter was 12 years 6 months with a non-parole period of 8 years 9 months; and for the other count was 13 years 6 months with a non-parole period of 9 years 9 months. Prior to any discount, the head sentences were 16 years and 8 months and 18 years respectively.
The Crown accepted that Spark involved more serious offending than this case, but submitted that Winter did not. The Crown accepted that none of these cases is precisely analogous to the respondent’s case, however, it was contended that “together they demonstrate that a longer sentence was necessary to reflect the objective and subjective factors in the respondent’s case.”
To an extent, I accept the Crown’s submissions concerning these cases in that the offender’s conduct in Spark was worse than that of the respondent. The respondent’s criminality was worse than that of the offender in Winter, as was his subjective case, and there are some matters of real distinction between his case and Smith, especially the necessity to address specific deterrence and protect the community from him. That said, I do not accept that these cases define some range for vehicular manslaughter or that, of themselves, they “demonstrate” the manifest inadequacy of the sentence imposed on the respondent, although they support that conclusion.
Bearing in mind these cases, I return to consider the sentencing considerations. I have already accepted that this was a very serious example of vehicular manslaughter. The sentencing judge did not make any findings concerning the respondent’s moral culpability even though the Crown submitted to him that it was “very high”. Given the manner and circumstances of his driving, his drug usage and the fact that he was on conditional liberty for the same conduct, I accept that submission even allowing for Dr Nielssen’s opinion. The sentencing judge’s finding of remorse can be accepted. However, the respondent’s antecedents, drug usage and the lack of any real evidence that he had some prospect of not reoffending, much less a finding to that effect, meant that, consistent with the analysis in ground 1, the necessity for specific deterrence and to protect the community from him were very significant factors in his sentencing. Having regard to these matters, I am satisfied that there was a “misapplication of principle” and the sentence imposed was manifestly inadequate. I would uphold ground 2 of the appeal.
Residual Discretion and Resentencing
There was no suggestion that the respondent was not notified of the Crown’s intention to appeal or at least consider appealing the sentence relatively promptly. The Crown’s appeal raises an issue of principle (ground 1). In addition, the matters raised under both grounds of appeal raise an issue about the protection of the community from the respondent and a matter of public concern about sentences for this type of offence generally.
The only contentious matter that arose in relation to whether to exercise the discretion to resentence was the potential impact that resentencing might have on the respondent’s rehabilitation. An affidavit affirmed by a solicitor employed by the DPP was read at the hearing of the appeal. The affidavit annexed records from Corrective Services NSW indicating that he had been involved in prison altercations including an incident on 3 March 2021 when he admitted ownership of an offensive weapon, being a modified “shiv”. These were addressed in an affidavit sworn by the respondent in which he stated that admitted to ownership of the weapon to avoid a threat from another inmate to whom it belonged. In that affidavit he attests to his completion of various positive lifestyle courses while in custody. He also states that, since early April 2021, he has been participating in a “buvidal injection program” which addresses cravings of opioid through the injection of suppressants. He states that he is attending regular sessions with a prison chaplain and expresses his intention to learn from his experiences. He says he is stressed by the uncertainty over the length of his sentence because of the Crown appeal. An affidavit from his solicitor attaches records confirming his involvement in the injection program.
In his written submissions, Mr Odgers SC submitted that any breaches by the respondent in custody should be considered with caution given the diagnosis of PTSD and otherwise referred to the material noted above concerning his attempts to obtain his assistance with his substance abuse problem. In his oral submissions he referred to his client’s affidavit. As noted, there was no positive finding by the sentencing judge about his prospects of rehabilitation. Even allowing for the evidence read on the appeal, I am not persuaded that his tentative steps towards rehabilitation are such that they should have much bearing upon the exercise of the discretion to resentence. I do not consider that the residual discretion not to intervene should be exercised.
In resentencing the respondent, I will adopt the sentencing judge’s finding that his evidence of remorse given at the sentencing hearing should be accepted. I will also accept his Honour’s finding of special circumstances and maintain a similar ratio between the aggregate non-parole period and head sentence that his Honour’s sentence did. I have already addressed the seriousness of the offending and his moral culpability. Even allowing for the evidence read on appeal and the material pointed to by Mr Odgers SC that showed he has some insight into his drug abuse problem (see [42]), I consider his prospects of rehabilitation to be poor. I consider that there is a real potential that that he will reoffend in a reasonably serious manner in the future. It follows that, any sentence must reflect considerations of specific deterrence and the need to protect the community from the respondent as well as general deterrence and denunciation.
In relation to the manslaughter offence, I consider that the appropriate (indicative) sentence is 13 years and 6 months imprisonment prior to the allowance for any discount for the respondent’s plea. After allowance for the plea of guilty and rounding, the indicative sentence becomes 10 years and 1 month. For the offence of driving while disqualified I will adopt the same indicative sentence as his Honour, namely, 3 months imprisonment and notionally accumulate that sentence by the same length of time as his Honour did, namely 1 month. The total sentence will be 10 years and 2 months and the non‑parole period will be 6 years and 8 months The sentence will commence from the same date, namely, 6 October 2019. No submissions were directed to the driving disqualification orders. Accordingly I do not propose that they be altered.
Accordingly, I propose the following orders:
(1) Appeal allowed;
(2) Set aside the sentence imposed by Williams SC DCJ on 25 September 2020 but not the orders disqualifying the respondent from driving;
(3) In place thereof:
(a) impose an aggregate sentence of 10 years and 2 months imprisonment to commence on 6 October 2019 and expire on 5 December 2029;
(b) pursuant to s 44(2A) of the Crimes (Sentencing Procedure) Act 1999 set a non-parole period of 6 years and 8 months;
(c) specify that the earliest date the respondent will be eligible to be released on parole is 5 June 2026;
(d) pursuant to s 53A(2)(b) of the Crimes (Sentencing Procedure) Act 1999, record that an aggregate sentence is imposed and indicate to the respondent that the sentences that would have been imposed for each offence under separate sentences instead of an aggregate sentence are as follows:
Manslaughter – 10 years and 1 month imprisonment
Drive while disqualified - 3 months imprisonment.
N ADAMS J: I have had the advantage of reading the judgment of Beech-Jones J in draft. I agree with his Honour’s proposed orders for the reasons provided.
As his Honour has noted at [49] this was a very serious example of vehicular manslaughter. The respondent, whilst disqualified from driving and having been afforded the leniency of an ICO 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 well within the “reported toxic to potentially fatal range”. The lives of both the family of the 12 year old child he killed and the child’s young friend who witnessed him die are forever changed.
I agree with Beech-Jones J that there is an insufficient basis to depart from the sentencing judge’s finding of remorse. The respondent gave evidence of remorse at his proceedings on sentence and it was accepted by the sentencing judge. It is appropriate that the respondent receive the benefit of the same finding on re-sentence. Despite this, it is to be noted that the remorse in this case was somewhat belated. The uncontested evidence is that after hitting the child with his car and observing his body, the respondent failed to render any assistance to the dying child and instead stood by smoking a cigarette and speaking on his mobile telephone. It is to be accepted that this callous behaviour may be explicable at least in part by the respondent’s consumption of a significant amount of “ice” and its effect on his thought processes, although he was able to think clearly enough to delete texts on his mobile telephone, speak with his family and concoct a lie to tell police as to the cause of the accident. Whatever be the explanation, it is unsurprising that the respondent’s failure to assist the dying child was a matter singled out by the deceased’s father as a matter that caused particular pain to his grieving family.
Given the respondent’s age, criminal record, driving record and the circumstances of the offence itself, findings as to the respondent’s moral culpability, risk of re-offending and the need for specific deterrence loomed large in the sentencing process. Regrettably, these important questions were not addressed in any meaningful way by the sentencing judge. These omissions may go some way to explain how the manifestly inadequate aggregate sentence the subject of this appeal was arrived at.
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