KC v Director of Public Prosecutions & Director of Public Prosecutions v KC

[2007] NSWDC 25

CITATION:	KC v Director of Public Prosecutions & Director of Public Prosecutions v KC [2007] NSWDC 25 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	13/11/06, 14/11/06, 15/11/06,16/11/06, 17/11/06, 20/11/06, 21/11/06, 23/11/06,4/12/06, 5/12/06,
JUDGMENT DATE:	23 February 2007
EX TEMPORE JUDGMENT DATE:	23 February 2007
JURISDICTION:	Criminal
JUDGMENT OF:	Taylor DCJ at 1
DECISION:	See paras 105 - 113 of the judgment.
CATCHWORDS:	Dangerous driving occasioning death, Dangerous driving occasioning grievous bodily harm,
LEGISLATION CITED:	s.6(b), s.33C, s33(1)(g),s.33(1)(a)-(f) Children (Criminal Proceedings) Act 1987; s.52A, s.52A(1) &(3),s.52A (1)(c), s.52A(2), s.52A(3)(c), s.52A(4) Crimes Act; Crimes Act (Dangerous driving occasioning death) 1900; Crimes Act (Dangerous driving occasioning greivous bodily harm) 1900; s.12, s.16, s.18, s.20, s.23, s.26 Crimes (Local Courts Appeal and Review) Act 2001; s.3 A(g), s.6(b), s.21 A(2), s.44 Crimes( Sentencing Procedure) Act 1999.
CASES CITED:	R v Sherbon 5 December 1991 NSWCCA (unreported). Comptroller-General of Customs v D'Aquino Bros Pty Ltd (1996) 135 ALR 649 at 669-672. R v Whyte (2002) 55 NSWLR 252 at [146, 209,216-231, 218-228, 254-255]. Rv Jurisic (1998) 45 NSWLR 209 at [228 C-D, 228-229, 231 E-F]. R v Errington (2005) 157 A Crim R 553 at [23, 36, 40]. R v Berg (2004) 41 MVR 399 at [21]. R v Berg [2004] nswcca 300. R v Tzanis (2005) 44 MVR 160. R v Murnin 16 August 1985 NSWCCA (unreported). R v Hallacoglu (1992) 29 NSWLR 67 at [75]. R v MacIntyre (1988) 38 A Crim R 135 at [139]. R v Wilkins (1988) 38 A Crim R 445 at [449-450, 452]. R v Romanic [2000] NSWCCA 524 at [18]. R v Vale [2004] NSWCCA 469. R v Dunlop [2001] NSWCCA 435 at [20]. R v Y [2002] NSWCCA 191 at [26,32-36]. R v Elyard [2006] NSWCCA 43 at [10, 43]. R v McMillan [2005] NSWCCA 28. R v Ancuta [2005] NSWCCA 275 at [12]. R v Winter 9 September 1998 NSWCCA (unreported). R v Slattery (1996) 90 A Crim R 519 at [519, 523]. R v Musumeci 30 November 1997 NSWCCA at [5] (unreported). R v Smith (1997) 95 A Crim R 373. R v Howland (1999) 104 A Crim R 273 at [23-24]. R v Turner 12 August 1991 NSWCCA at [6] (unreported). R v Marlin 10 September 1997 NSWCCA at [9] (unreported). R v Koosmen (2004) 42 MVR 123. R v Turner 12 August 1991 NSWCCA at [6] (unreported). R v Davies [2000] NSWCCA 84 at [53-54]. R v Blanco (1999) 106 A Crim R 303. R v Previtera (1997) 94 A Crim R 76. R v Bollen (1998) 99 A Crim R 510. R v Crampton [2004] NSWCCA 56. MS2 v R [2005] NSWCCA 397 at [14].
PARTIES:	KC Severity Appeal (Appellant) DPP (Respondent) DPP Inadequacy Appeal (Appellant) KC (Respondent)
FILE NUMBER(S):	05/12/1976
COUNSEL:	Mr. G. Tabuteau (DPP) Mr. J . Glisson QC (Appellant) Mr. W. Wilcher (Appellant)
SOLICITORS:	Ms. Sharon Fleming (DPP). Mr. Peter O'Grady (Appellant)

JUDGMENT

Introduction.

1 Between 11 and 11.30pm on 29 June 2004 KC was driving a Peugeot 206 motor vehicle in Raglan Street, Mosman, which crossed to the incorrect side of the road. KC lost control of the vehicle. After crossing the kerb and colliding with a number of objects the convertible vehicle, with its roof down, rolled over. The appellant was travelling with three passengers. One of them, JG was killed in the accident. JM suffered severe injuries, as did GA.

2 KC was charged with a number of dangerous driving offences. At the time of the accident KC was seventeen years of age. Proceedings brought by way of Court Attendance Notices were instituted under the Children (Criminal Proceedings) Act 1987. The Children’s Court at Bidura, pursuant to s 18(1)(b) of the Act, dealt with the matters under Division 4 of part 3. On the fifth day of the defended hearing KC entered a plea of guilty to the charges. The Children’s Magistrate made findings of guilt on the three dangerous driving charges and proceeded to make penalty orders under s 33(1)(g) of the Act. KC appealed against the severity of the sentences. Subsequently KC sought leave under s 12 of the Crimes (Local Courts Appeal and Review) Act to appeal against the convictions. As noted in more detail later in these reasons, following a contested hearing, I granted leave on 10 August 2006 to withdraw the pleas. Subsequently the conviction appeals were heard and determined by me by dismissal of those appeals on 13 December 2006. The finding of guilt in respect of each matter was confirmed.

3 Although each of the decisions appealed from was a finding of guilt by a Children’s Magistrate, the proceedings are described as a conviction appeal. This is because in s 3 of the Crimes (Local Courts Appeal and Review) Act states that conviction includes a reference to a finding of guilt on an appeal from the Children’s Court.

4 KC’s appeal in respect of the penalty orders made by the Magistrate was enlivened following the dismissal of the conviction appeals. Concurrently with those appeals is an appeal by the Director of Public Prosecutions against the inadequacy of the sentences. As the appeals arise out of the same sentencing disposition, for convenience, KC in these reasons is sometimes referred to as the appellant.

5 At the time of the accident KC was seventeen years and one month old and had held a driver’s licence for eleven days. In May this year the appellant turned twenty. The appellant’s driving experience was limited to L plate experience and ten days as a licensed P plate driver.

6 The vehicle the appellant was driving was a gift from the appellant’s parents for obtaining a driving licence. The vehicle was purchased brand new and was a comparatively powerful sports convertible vehicle. The appellant is a person of good character and has no prior driving or other convictions.

7 The appellant’s senior counsel submitted “It may be that the car was inherently inappropriate for a driver of KC’s limited skill and experience.”

The charges against the appellant were brought under s 52A of the Crimes Act.

8 That section relevantly states:

Dangerous driving occasioning death

9 A person is guilty of the offence of dangerous driving occasioning death if the vehicle driven by the person is involved in an impact occasioning the death of another person and the driver was, at the time of the impact, driving the vehicle:

10 (a)…(b) …or (c) in a manner danger to another person or persons.

Dangerous driving occasioning grievous bodily harm

11 A person is guilty of the offence of dangerous driving occasioning grievous bodily harm if the vehicle driven by the person is involved in an impact occasioning grievous bodily harm to another person and the driver was, at the time of the impact, driving the vehicle:

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

Particulars Of The Charges And The Applicable Maximum Penalties

13 The charged offences were:

14 (1) Dangerous driving occasioning death, in respect of the death of JG, (s52A(1)(c) of the Crimes Act.)

15 (2) Dangerous driving occasioning grievous bodily harm to JM, (s52A(3)(c) of the Crimes Act.)

16 (3) Dangerous driving occasioning grievous bodily harm to GA, (s52A(3)(c) of the Crimes Act.)

17 The particulars of the offences as recorded in the Court Attendance Notices were:

a. That KC on 29 June 2004, at Mosman in the state of New South Wales, did drive a vehicle to wit, a 2004 silver Peugeot convertible motor vehicle bearing NSW registered number AQS-75Q when it was involved in an impact occasioning the death of JG and at the time of the impact the said KC was driving the vehicle in a manner dangerous to other persons.

b. That KC on 29 June 2004, at Mosman in the state of New South Wales, did drive a vehicle to wit, a 2004 silver Peugeot convertible motor vehicle bearing NSW registered number AQS-75Q, when it was involved in an impact occasioning grievous bodily harm to JM and at the time of the impact the said KC was driving the vehicle in a manner dangerous to other persons.

c. That KC on 29 June 2004, at Mosman in the state of New South Wales did drive a vehicle bearing NSW registered number AQS-75Q, when it was involved in an impact occasioning grievous bodily harm to GA and at the time of the impact the said KC was driving the vehicle in a manner dangerous to other persons.

18 The medical reports disclose that the rear offside passenger, JG aged eighteen, died at the scene from the injuries she had sustained in the collision. The front passenger, JM aged seventeen, suffered grievous bodily harm from injuries received in the collision, including a degloved right hand and multiple fractures entailing the left clavicle. The rear nearside passenger, AG aged seventeen, suffered grievous bodily harm from injuries received in the collision, including a fractured skull, blood clot to the brain and fractured left hand.

19 The appellant also received injuries in the collision, including a deep cut to the back of the head, injuries to the left arm and right heel, and loss of consciousness.

20 At law a contravention of s 52A(1) of the Crimes Act (Dangerous driving occasioning death) carries a maximum penalty of ten years imprisonment. A contravention of s 52A(3) of the Crimes Act (Dangerous driving occasioning grievous bodily harm) carries a maximum penalty of seven years imprisonment. It was open to police or the Director of Public Prosecutions to prosecute KC at law. See s 18(1) of the Children (Criminal Proceedings) Act 1987 and R v Sherbon 5 December 1991 NSWCCA (unreported).

21 Appropriately, as was open to the prosecution, proceedings were brought in the Bidura Children’s Court. The Magistrate heard and determined the proceedings under part 3 of the Children (Criminal Proceedings) Act 1987. It is not in contention that this court is to apply the more lenient sentencing regime provided for in s 33(1) of the Children (Criminal Proceedings) Act rather than according to law.

22 It is the control orders made by the Magistrate under s 33(1)(g) of the Act that are the subject of these appeals.

Further Discussion On The Application Of The Children (Criminal Proceedings) Act

23 The effect of s 33A of the Act is that the court may make a control order for the detention of the person for not more than two years. Where more than one control order is made, such orders may be cumulative or concurrent, and not exceed three years, and the person must not be detained for more than two periods specified in different control orders where those periods are not concurrent to any extent.

24 It is important to note at this point that the principle of parsimony is embodied in s 33(2) which provides that the court shall not impose a control order unless it is satisfied that it would be wholly inappropriate to deal with the person by the imposition of any other penalty under s 33(1)(a)-(f).

25 The nature of the appeals is such that this court is called upon to exercise its own discretion and consider what is proper. It is not limited to a review of the Magistrate’s sentences and orders to determine whether the Magistrate erred in law, see R v Sherbon, 5 December 1991 NSWCCA (Unreported). See also Comptroller-General of Customs v D’Aquino Bros Pty Ltd (1996) 135 ALR 649 at 669-672 where the judge held that he was obliged to exercise judicial restraint in crown appeals.

26 Section 44 of the Crimes (Sentencing Procedure) Act 1999 applies to the proceedings in the Children’s Court by virtue of s 33 of the Children (Criminal Proceedings) Act. Section 44 required the Magistrate to decide that there were special circumstances justifying the balance of the sentence exceeding one third of the non-parole period and to record his reasons for so deciding.

27 Section 6 of the Children (Criminal Proceedings) Act in terms states that it is desirable wherever possible, to allow the education or employment of a child to proceed without interruption and wherever possible, to allow a child to reside in his or her own home. Once as here, a court has determined that a custodial sentence is required, s 6 is an important factor in deciding how the sentence should be served and its overall length and the length of the parole period.

28 In my opinion this section is applicable notwithstanding that the appellant has reached the age of eighteen years.

A Guilty Plea Before The Magistrate

29 On 21 October 2005 at the commencement of the fifth day of defended proceedings in the Bidura Children’s Court, Glebe, KC entered pleas of guilty to three offences alleged to have been committed on 29 June 2004 in a motor vehicle accident in which she was the driver, as follows:

(1) Dangerous driving occasioning death in respect of the death of JG, s 52A(1)(c) of the Crimes Act.

(2) Dangerous driving occasioning grievous bodily harm to JM, s 52A(3)(c) of the Crimes Act.

(3) Dangerous driving occasioning grievous bodily harm to GA, s 52A(3)(c) of the Crimes Act.

30 Sentence proceedings in respect of the pleas of guilty were adjourned to 9 December 2005 for sentence.

31 A further charge of aggravated dangerous driving occasioning death in respect of JG, s 52A(2), and two further charges of aggravated dangerous driving occasioning bodily harm to JM and GA, s 52A(4), were adjourned generally, as were three further charges arising from the same incident, negligent driving occasioning death, disobey keep left sign and not keep left of dividing line.

The Sentences Imposed By The Magistrate

32 The appellant was sentenced on 12 December 2005, as follows:

(1) Dangerous driving occasioning death in respect of JG, eighteen month control order under s 33(1)(g) of the Children (Criminal Proceedings) Act from 12 December 2005 with a two month non parole period, with release subject to supervision by the NSW Probation Service and disqualified from driving for three years from 12 December 2005.

(2) Dangerous driving occasioning grievous bodily harm to JM and to GA. On each of those two matters eight month control order, s 33(1)(g) of the Children (Criminal Proceedings) Act from 12 December 2005 with a one month non parole period with release subject to supervision by the NSW Probation Service and disqualified from driving for three years from 12 December 2005.

The Progress Of The Appeals

33 The applicant filed a notice of appeal on 12 December 2005, the date of sentence to the District Court against the severity of the sentences.

34 The Director of Public Prosecutions filed a notice of appeal on 6 January 2006 to the District Court under s 23 of the Crimes (Local Courts Appeal and Review) Act against the inadequacy of the sentences.

35 On 8 February 2006 the appellant filed a notice of motion in effect seeking to appeal against the conviction in respect of which the pleas of guilty had been entered on 21 October 2005.

36 On 4 August 2006 this court granted the appellant leave under s 12 and s 16 of the Crimes (Local Courts Appeal and Review) Act to appeal against the convictions following pleas of guilty.

37 Between 13 November and 6 December 2006 the appeals against conviction were heard by way of rehearing.

38 On 13 December 2006 in respect of each of the three appeals against conviction, each was determined by dismissing the appeal under s 20(1)(b) of the Crimes (Local Courts Appeal and Review) Act 2001.

39 The Director of Public Prosecutions appeal against the sentences imposed on 12 December 2005 is brought under s 23 of the Crimes (Local Courts Appeal and Review) Act 2001. Under s 26 of that Act, such an appeal is by way of rehearing.

The Circumstances Surrounding The Driving.

40 The principal circumstances surrounding the driving at the time of the collision were:

(i) The applicable speed limit was fifty kilometres per hour.

(ii) The vehicle was full with four occupants.

(iii) The appellant had very limited driving experience.

(iv) It was night.

41 The road’s characteristics, which, significantly included a curve and a divided roadway south of Musgrave Street.

42 Further circumstances are that at the time of the collision the appellant was required to meet a curfew deadline for one of the passengers in the vehicle, AG. The appellant had been driving intermittently since 5.30pm. The vehicle’s sound system was turned to an “extremely loud” level which may have constituted a potential distraction for the appellant.

Findings.

43 The accident occurred in Raglan Street, Mosman between 11 and 11.30 pm on 29 June 2004. The incident involved a Peugeot sedan being driven by KC travelling onto the incorrect carriageway of Raglan Street near the separation of the upper and lower carriageway, a short distance to the south of Musgrave Street. The lower carriageway is designed to carry south bound traffic, whilst the upper carriageway is designed to carry north bound vehicles. KC at the time of the incident was travelling south but entered the north bound carriageway. There were three other young females in the vehicle at the time of the incident.

44 Approximately twenty five metres south from the commencement of upper Raglan Street and on the incorrect carriageway, the vehicle swerved suddenly to its right leaving visible yaw marks on the road pavement from its two right side tyres. The vehicle began to rotate in a clockwise direction during the yawing motion. The vehicle then mounted the western kerb of Raglan Street where it impacted in a glancing fashion with a roadside tree, impacted heavily with a telephone utility pole, then travelled into a heavy impact with a block fence surrounding a stairway to an apartment complex.

45 During impact with the fence, the vehicle commenced to roll about its longitudinal axis onto its roof. The vehicle continued to rotate after impact with the fence and bounced away from the fence into the western gutter of Raglan Street, coming to rest in an inverted position with the vehicle facing north, that is in the opposite direction from which it approached.

46 As a result of the impact the death of JG was occasioned and JM and AG suffered grievous bodily harm. The vehicle after crossing to the incorrect side of the road collided with a number of objects whilst it travelled some eighty metres before coming to rest upside down in Raglan Street.

47 The appellant was driving the vehicle immediately before and at the time of the collision in Raglan Street on the incorrect side of the road at a speed of not less than seventy to eighty kilometres an hour and most probably between seventy five to eighty kilometres per hour. It is possible she was travelling faster.

48 Driving the vehicle at such a speed in the circumstances surrounding the driving was dangerous to the three persons in the appellant’s vehicle and constituted driving in a manner dangerous to another person in respect of each of the appellant’s three passengers. Driving at a high speed out of control on the incorrect side of the road was also a danger to other road users. The combination of the appellant’s speed, loss of control of the vehicle and travelling to the incorrect side of the road produced a very dangerous situation and caused a terrible accident.

49 As a result of the impact the death of JG was occasioned and JM and AG suffered grievous bodily harm.

Discussion Of The Guideline Judgments.

50 The guideline judgments of Whyte and Jurisic have application on sentence. The guideline judgment in R v Whyte (2002) 55 NSWLR 252 reformulated the earlier guideline in R v Jurisic (1998) 45 NSWLR 209.

The Judgments Refer To a Typical Case

51 A frequently recurring case of an offence under s 52A has the following characteristics:

(1) Young offender.

(2) Of good character with no or limited prior convictions.

(3) Death or permanent injury to a single person.

(4) The victim is a stranger.

(5) No or limited injury to the driver or the driver’s intimates.

(6) Genuine remorse.

(7) Plea of guilty of limited utilitarian value.

52 The guideline with respect to custodial sentences is:

A custodial sentence will usually be appropriate unless the offender has a low level of moral culpability, as in the case of momentary inattention or misjudgement.

53 Aggravating factors referred to in the guidelines judgements are:

(i) Extent and nature of the injuries inflicted.

(ii) Number of people at risk.

(iii) Degree of speed.

(iv) Degree of intoxication or of substance use.

(v) Erratic or aggressive driving.

(vi) Competitive driving or showing off.

(vii) Length of the journey during which others were exposed to risk.

(vii) Ignoring the warnings.

(ix) Escaping police pursuit.

(x) Degree of sleep deprivation.

(xi) Failing to stop.

54 Items 3 to 11 relate the moral culpability of an offender. Guidelines with respect to the custodial sentences for offences under s 52A(1) and (3) of the typical case is:

Where the offender’s moral culpability is high, a full time custodial head sentence of less than three years in the case of death and two years in the case of grievous bodily harm, would not be generally appropriate.

55 The guideline focuses attention on the objective circumstances of the offence. The subjective circumstances of the offender will also require consideration. In Whyte, Spigelman CJ said:

In the above list of aggravating factors, items 3 to 11 are frequently recurring elements which directly impinge on the moral culpability of the offender at the time of the offence. Individually, but more often in some combination, they may indicate that the moral culpability is high. One way of expressing such a conclusion is to ask whether the combination of circumstances are such that it can be said that the offender has abandoned responsibility for his or her own conduct. That is not the only way of expressing such a conclusion.

56 The guideline is a “guide” or “check”.

The Use Of The Guideline

57 It has been held that it is erroneous to treat the Whyte guideline as a starting point rather than a reference point. A reference point is not the same thing, so long as appropriate adjustments are made in accordance with the guideline R v Errington (2005) 157 A Crim R 553 at [40]. As Simpson J noted in R v Woodland (2007) NSWCCA 29 [41], when her Honour said:

Guideline judgments were never intended as a straightjacket for sentencing judges, the sentencing discretion remains important, to enable judges to take account of the specific features of an individual case and to ensure that a fitting sentence, in all the circumstances, is imposed…

58 In R v Berg (2004) 41 MVR 399, Howie J with whom Spigelman CJ and Woods CJ at Common Law agreed, said:

But the factors in the list set out in Whyte as indicative of the typical case, do not operate as a checklist, the presence or absence of characteristics having some mathematical relationship with the sentence to be imposed. They merely describe the typical case and were not intended to circumscribe the sentencing judge’s discretion…

59 In R v Errington Mason J, with whom Grove J and Buddin J agreed, noted that the aggravating factors listed in Whyte remain illustrative, not definitive, of what is capable of representing “abandoning responsibility”.

60 While the guideline focuses attention on the objective circumstances of the offence, the subjective factors of the offender also require consideration and may be deserving of considerable weight, R v Tzanis (2005) 44 MVR 160.

61 Paraphrasing [146] in Whyte, the underpinning principle in coming to sentence is equality of justice which resolves the tension between maintaining the discretion essential for individualised justice on the one hand and guidance to ensure consistency in sentencing decisions on the other. It is for this reason that numerical guideline judgments have been held to have a role to play in achieving equality of justice.

62 The manner of driving in this case did not involve momentary inattention, misjudgement or conduct that would not be described as contumacious as that word is explained at [209] in Whyte.

63 The circumstances I found in this case lead me to conclude that the offender abandoned responsibility for her own conduct in crossing to the incorrect side of the road, driving at an excessive speed and travelling a distance of some eighty metres without control of her vehicle. Again the findings I have made lead me to conclude that the offender has a high moral culpability of her conduct.

64 I emphasise again the guideline in Jurisic is just that, a “guide” or a “check”. The guideline focuses the attention on the objective circumstances of each offence. The subjective circumstances of the offender are also given consideration.

65 It is accepted and it is appropriate that the orders made in the Children’s Court have an inbuilt degree of leniency. It is also not in issue that comparable cases at law have attracted substantially higher sentences.

The Premium On Human Life

66 The legislature has always placed a premium on human life, and the taking of human life by driving a motor vehicle dangerously is to be regarded as a crime of some seriousness, R v Murnin (unreported 16/8/85 NSWCCA) per Street CJ, cited in R v Hallacoglu (1992) 29 NSWLR 67 at 75.

67 The real substance of the offence of dangerous driving causing death is not just the dangerous driving, it is the dangerous driving in association with the taking of a human life, R v MacIntyre (1988) 38 A Crim R 135 at 139.

68 It is legitimate in sentencing for culpable driving to have regard to the consequences of that driving. In terms of seriousness, the greater the number of deaths, the greater number of people injured, the graver the crime becomes. It may be appropriate to accumulate sentences arising from one incident, especially where the maximum penalty for one offence is inadequate to reflect the criminality involved, R v Wilkins (1988) 38 A Crim R 445 per Lee CJ at CL at 449-450, c.f. Allen J dissenting at 452 and R v Romanic [2000] NSWCCA 524 at [18] illustrates the need to take into account as an aggravating fact of the circumstances that there was more than one victim who was injured as a consequence of the offence. I will discuss this issue further in these reasons.

69 However where the death of the victim is an element of the offence, it is an error to treat this fact as an aggravating circumstance. This contravenes s 21A(2) of the Crimes (Sentencing Procedure) Act which states that the court is not to have additional regard to any aggravating factor in sentencing if it is an element of the offence, see R v Vale [2004] NSWCCA 469.

70 The extent and nature of the injuries inflicted will contribute to the determination of the appropriate penalty of these offences.

(i) The degree of speed in the particular circumstances surrounding the driving at the time of the collision, bearing in mind the road’s characteristics. The appellant being an inexperienced driver, was travelling on the incorrect side of the road at a speed not less than seventy to eighty kilometres per hour and most probably seventy five to eighty kilometres an hour at the time of the collision in a fifty kilometre speed limit zone at night with three additional passengers in the vehicle.

(ii) The culpability of the offender’s conduct. Culpable conduct which kills must be treated as a serious crime, R v Dunlop [2001] NSWCCA 435 at [20] and also R v Janceski [2005] NSWCCA 288 at [30], where it was held that the offender’s moral culpability is the critical component of the objective circumstances of the offences.

(iii) The number of deaths or people injured . The greater the number of deaths or people injured, the more serious the offence, R v Whyte (2002) 55 NSWLR 252 at [216, 231].

(iv) The circumstances are indicative of an abandonment of responsibility , R v Whyte (2002) 55 NSWLR 252 at [218, 228].

(v) The paramount importance of general deterrence , even in cases of youthful offenders of good character, R v Jurisic (1998) 45 NSWLR 209 at 228C-D, R v Dunlop at [20] and R v Y [2002] NSWCCA 191 at [26].

Section 21A Of The Crimes (Sentencing Procedure) Act 1999

71 Section 21A(2)(i) of the Crimes (Sentencing Procedure) Act provides an aggravating feature that a court may take into account where the offence was committed without regard to public safety. Section 21A(2) provides that the court is not to have regard to a factor if it is an element of the offence. In R v Elyard [2006] NSWCCA 43 at [10] it was held that the prohibition in s 21A(2) extends to inherent characteristics of an offence. An inherent characteristic of dangerous driving offences is that committed without regard for public safety. Baston J said:

Acting without regard for public safety should not in 52A cases, be given additional effect as an aggravating factor in its own right, unless the circumstances of the case involve some unusually heinous behaviour or inebriation or above the statutory pre-condition.

72 Howie J said:

In a particular case the lack of regard for public safety may also be so egregious that it transcends that which would be regarded as an inherent characteristic of the offence.

73 That is not this case. In this case there is no evidence to support that finding of unusually heinous behaviour. This approach was proved in R v McMillan [2005] NSWCCA 28 and that case disapproved the comment in R v Ancuta [2005] NSWCCA 275 at [12].

Youth

74 The youth of the offender is an important factor on sentence. Generally speaking, deterrence is given less weight in cases involved young offenders and there is greater emphasis on rehabilitation

75 Section 6(b) of the Children (Criminal Proceedings) Act provides that courts exercising criminal jurisdiction over children consider that “children who commit offences bear responsibility for their actions, but because of their state of dependency and immaturity, require guidance and assistance”.

76 However there are a number of cases which place “youth” in a special category in relation to dangerous driving offences. It has been held that there is a need for general deterrence to play a factor in cases such as this, R v MacIntyre (1988) 38 A Crim R 135 at 139, R v Winter (unreported 9/10/98, NSWCCA), R v Jurisic (1998) 45 NSWLR 209 at 228-229 and R v Slattery (1996) 90 A Crim R 519 and R v Musumeci (unreported 30/11/97, NSWCCA).

77 Indeed the usual rule that general deterrence applies with less force to the sentencing of young offenders does not wholly apply to dangerous driving offences, because there is a prevalence of these offences amongst young drivers and the courts have a duty to seek to deter this behaviour, R v Smith (1997) 95 A Crim R 373 per Grove J.

78 It is acknowledged that it is a difficult thing to send a young person of good character to custody, but where appropriate must be done to deter others, R v Slattery at 523.

79 In cases involving youthful offenders of good character, the sentence must be seen to have a reasonable proportionality to the objective circumstances of the crime and persuasive subjective considerations must not lead to inadequate weight being given to those objective circumstances, R v Slattery at 523, R v Musumeci at [5], R v Howland (1999) 104 A Crim R 273 at [23]-[24].

Death And Injury To Friends

80 The fact that the offender has suffered grief over causing the death of a friend and severe injury to two of her other friends is a mitigating circumstance in this case, R v Turner (unreported 12/8/91, NSWCCA at [6], R v Marlin (unreported 10/9/97 NSWCCA) at [9], R v Slattery (1996) 90 A Crim R 519, R v Errington (1999) 29 MVR 344 at [23] and R v Koosmen (2004) 42 MVR 123.

Further Subjective Factors

81 As I noted earlier the appellant is a person of good character. It is trite to note that dangerous driving can involve criminal conduct by persons who are otherwise of good character. The juvenile justice report notes that the appellant “reports extremely close, warm and affectionate ties between herself and her parents”. Her results in the HSC were considerably lower than she anticipated. This is attributed to the accident. The appellant has completed a diploma in photography and is presently employed as a receptionist. Her plea of guilty before the Children’s Magistrate must be understood in the context of the adverse technical evidence it was anticipated the prosecution would lead. She has no recollection of the accident. This is supported by medical evidence. She has expressed sorrow at the circumstances of the accident. “There is no question that KC suffers intense remorse and sadness of the accident and its consequences.” She has not developed a specific psychiatric disorder as a result of the accident but her health has been impaired. Dr Wilcox also states “she wants to believe that it was not her fault, however at times she still experiences a degree of guilt”. Dr Wilcox also says that when the court proceedings have completed, KC “could benefit from the opportunity to participate in counselling aimed at reviewing her coping strategies and allowing her to express and manage her feelings”.

Injuries To The Offender

82 I have taken into account the fact that the offender suffered serious injuries in the collision, R v Turner (unreported 12/8/91 NSWCCA) at [6] and R v Slattery (1996) 90 A Crim R 519.

Double Jeopardy And Delay

83 In my view the delay in this matter plays an important part in the sentencing synthesis. The element of double jeopardy must be taken into account in assessing what the proper sentence should be, R v Y at [34-36] and R v D’Aquino at 669-672, where it was also said:

84 “It has become accepted that the distress occasioned to a respondent to a crown sentence appeal by twice being put in jeopardy of his freedom usually requires a discount to be applied by the appellant court”.

85 Delay to the extent not the appellant’s responsibility is also a relevant factor, R v Davies [2000] NSWCCA 84 at [53-54] and R v Whyte at [254-255]; R v Y at [32-36]. The appellant did not occasion the delay. The delays with expert witnesses should not have occurred. It will be three years in June since the accident. Disputes between the owner of the vehicle and the prosecution over access to the vehicle for the purpose of testing would have facilitated a timely resolution by experts seeking to reconstruct the dynamics of the accident. The terms of access and inspection were the subject of Supreme Court proceedings. Testing continued to and during the hearing of the conviction appeal.

86 Also, the appellant was confronted with expert evidence during the hearing before the Children’s Magistrate indicating a speed of just over a hundred kilometres an hour. I accepted the appellant’s evidence that this was the genesis of the plea of guilty before the Magistrate in December 2005. The prosecution on the conviction appeal did not rely upon that evidence. For reasons given in my earlier judgment, this is not surprising. It is not my purpose to attribute blame for the delay. The fact is a substantial time has passed since the accident. It is a significant factor to be taken into account on sentence in favour of the appellant.

87 The reason why delay is to be taken into account when sentencing an offender relates first to the fact of the uncertain suspense in which a person may be left. Secondly, any demonstrated progress the person has made towards rehabilitation during the intervening period and thirdly, to the extent that a sentence for a stale crime does call for a measure of understanding and flexibility of approach. See Jose Blanco (1999) 106 A Crim R 303.

88 This delay and its impact upon the offender is taken into account in the context of the more lenient statutory regime for criminal proceedings involving children which is consistent with the long term approach of the common law towards sentencing young persons. A sentence is imposed which is considerably less than would be appropriate at law.

89 It is important to always bear in mind that the gravamen of the major offence here is the taking of human life. It would be usual to order at least a partial accumulation of the sentences to reflect the multiple victims and applying the principles in Pearce’s case. In deciding the sentences should be served concurrently, I have borne in mind the leniency I have referred to and the fact the Magistrate ordered sentences to be served concurrently over twelve months ago.

Victim Impact Statements

90 Three victim impact statements from the family of the deceased were tendered in evidence. The survivors have maintained a close relationship with the appellant. In death cases the use of a victim impact statements from members of the deceased’s family were regarded as not relevant to the quantum of the sentence, R v Previtera (1997) 94 A Crim R 76 cited with approval in R v Bollen (1998) 99 A Crim R 510. In the light of the text of s 3A(g) of the Crimes (Sentencing Procedure) Act, which states the purpose for which a court may impose a sentence on an offender includes to recognise a harm done to the victim of the crime and the community, there is an applicability of those victim impact statements here.

91 The Chief Justice stated in R v Berg [2004] NSWCCA 300, that Previtera may need to be reconsidered. As noted earlier the gravamen of the offence of dangerous driving occasioning death is the taking of human life. The impact on the family of the deceased is self evident. The victim impact statements by the family each reflect this. The victim’s impact statements have been considered here in the sentencing exercise on the basis of the reference in s 3A(g) to recognise the harm done to the community and it is only to this extent that it is permissible to take them into account. The community has lost a young person.

Course Of Driving

92 The appellant contends that the evidence of highway patrol police concerning the appellant’s driving at Dee Why less than two hours before the accident has no relevance on the sentence as being too remote. It is also argued that the evidence of one of the survivors as to the appellant’s driving was inconsistent with the two constables observations. This is a sensitive issue. The evidence concerning the appellant’s manner of driving on the evening completed the picture given the evidence to which I have just referred, that is the evidence of the other passengers.

93 This accident is a tragedy for everyone concerned and indeed the community. It is not my purpose and I expressly do not intend to communicate any unnecessary criticism of the appellant. The evidence of the constables was persuasive. The appellant’s speed earlier in the evening was such that it was sufficiently high to attract the attention of police, who at the time were not particularly concentrating their attention on the opposite roadway where the appellant’s vehicle was being driven at the time. The constables only concern was the potential risk to the appellant and the passengers. The evidence points to a lack of insight in the appellant as to the speed she was travelling in the course of her driving on that evening. However, in the overall circumstances of this case it does not sound in the length of sentence.

Special Circumstances

94 In s 44 of the Crimes (Sentencing Procedure) Act, by s 33C of the Children (Criminal Proceedings) Act apply to these appeals. Accordingly, special circumstances are required to be found before adjusting the balance of the sentence exceeding one third of the non parole period. The appellant is a young person who accepting as I do the reports of Dr Wilcox, Dr Coffey and Ms Duffy will require counselling and support to assist her in her rehabilitation. I find special circumstances.

Further Conclusions

95 The appellant’s driving cannot be characterised as momentary inattention or misjudgement. Only full-time custodial sentences in all the circumstances are appropriate, R v Jurisic (1998) 45 NSWLR 209 at 231 E-F.

96 The serious objective circumstances I have identified under the heading Findings, include the loss of human life make it wholly inappropriate to deal with the offender under s 33(1)(a)-(f).

97 Youth and good character are very important considerations on sentence. Again I note that the sentence must be seen to have a reasonable proportionality to objective circumstances of the crime and persuasive subjective factors must not lead to inadequate weight being given to those objective circumstances, R v Campton [2004] NSWCCA 56.

98 In my view, bearing in mind the subjective factors, double jeopardy and delay, the non parole period of two months for the most serious of the offences is not an adequate sentence.

99 In my view the relationship between the non parole period and the total sentence in each matter imposed by the Magistrate was inappropriate, as was the balance of the term imposed by the Magistrate. It is necessary to increase the non parole periods. However, of the delay particularly occasioned through the expert evidence issues, to my mind balances out the fact that the Magistrate was sentencing upon a plea of guilty. Significant increases in sentence would be justified on the objective circumstances. The Magistrate did not accumulate the sentences at all. In my view it would be ordinarily appropriate to do so to reflect the number of victims, however as I said I have concluded that the correct approach on sentence for this offender is to leave the overall sentences to be served concurrently, but increase the length of the balance of the term slightly and to increase the length of the non parole period on the most serious matter to six months.

100 There was evidence of the significant increase of risk of injury in motor vehicles where there are a number of passengers. That evidence suggests the odds of a car crash injury among young drivers aged between seventeen and twenty five years who carry two or more passengers of the same age group in the vehicle were about sixteen times when compared with unaccompanied drivers. Whilst those statistics result from scientific research, it is notorious, and has been for a long while, that there is an increased risk to young drivers in vehicles carrying a number of passengers. The fact that the vehicle was full was an expressed concern of the police who warned the appellant earlier in the evening. Perhaps also Mr Eather’s interest in the training of young drivers is reflected in this circumstance. The appellant was of course very inexperienced.

101 I have borne in mind the youthfulness of the offender as a “very significant factor”. Taking into account the statements of Adams J in MS2 v R at [14] where his Honour said:

The reasons for this are two fold. The first is there is substantial public interest in the rehabilitation of youthful offenders.

102 His Honour went on to say:

The second reason is that immaturity is relevant to culpability or criminality. The point may be put simply, children do not have the adult value judgments, adult experience, adult appreciation of consequences, especially catastrophic consequences, or adult understanding of criminal culpability. That is of course not to say that depending on age and background such children may not be intentionally wicked and know very well what they do is not intend to do is very seriously wrong and even criminal.

103 The point is made by the Parliament of this state in the Children (Criminal Proceedings) Act when it relevantly states at s 6(b):

Principles relating to the exercise of criminal jurisdiction. A court in exercising criminal jurisdiction with respect to children shall have regard to the following principles:

(b) that the children who commit offences bear responsibility for their actions but because of their state of dependency and immaturity, require guidance and assistance.

104 A child is by definition, a person under the age of eighteen years as we have seen for these reasons. I have applied these principles to this offender and I impose sentence.

Orders

105 I have considered the sentencing options available and determine that it would be wholly inappropriate to deal with the appellant by way of the imposition of any other available penalty under s.33(1)-(f). It flows from that that I have given careful consideration to the imposition of a sentence to be served as a suspended sentence but have concluded that in the circumstances of the case it is not appropriate to do so.

The Severity Appeals

106 The appeals are dismissed.

The Inadequacy Appeals

107 The appeals are allowed.

108 The control orders imposed by the magistrate set aside.

109 The offence of dangerous driving occasioning death in respect of the death of JG:

110 Order a 20 month control order under s.33(1)(g) Children (Criminal Proceedings) Act 1987 from 23 February 2007 with a 6 month non-parole period with release subject to supervision by the New South Wales Probation Service.

111 Dangerous driving occasioning grievous bodily harm to JM and JG and GA. On each of these two matters:

112 Order an 8 month control order under s.33(1)(g) Children (Criminal Proceedings) Act 1987 with a 3 month non-parole period commencing on 23 February 2007 with release subject to supervision by the New South Wales Probation Service.

113 Periods of disqualification imposed by the magistrate are confirmed.

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15/03/2007 - Amended title page by deleting all the orders and substituting their paragraph numbers in the judgment - Paragraph(s) 105 - 113