R v Barker

[2016] NSWCCA 193

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	R v Barker [2016] NSWCCA 193
Hearing dates:	11 July 2016
Date of orders:	02 September 2016
Decision date:	02 September 2016
Before:	Bathurst CJ at [1] Hoeben CJ at CL at [2] Price J at [67]
Decision:	Crown appeal under s 5D dismissed.
Catchwords:	CRIMINAL LAW – Crown appeal against sentence – two counts of dangerous driving occasioning death and one count of dangerous driving occasioning grievous bodily harm – whether sentence manifestly inadequate – offender driving at excessive speed on rough road with passengers unrestrained – offending objectively serious and involving significant moral culpability – offender suffering serious psychiatric consequences as a result of accident – fragile mental health – sentence manifestly inadequate but residual discretion exercised – Crown appeal dismissed.
Legislation Cited:	Crimes Act 1900 (NSW) – s 52A(1)(c), s 52A(3)(c) Crimes (Sentencing Procedure) Act 1999 (NSW) – s 10A Criminal Appeal Act 1912 (NSW) – s 5D Road Transport Act 2013 (NSW) – s 117(1)(c)
Cases Cited:	Bugmy v The Queen [2013] HCA 37; 249 CLR 571 CMB v Attorney General for New South Wales [2015] HCA 9; 89 ALJR 407 DPP v Samadi [2006] NSWCCA 308 Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462 House v R [1936] HCA 40; 55 CLR 499 R v Janceski [2005] NSWCCA 288 R v Jurisic (1998) 45 NSWLR 209 R v Tuala [2015] NSWCCA 8 R v Whyte [2002] NSWCCA 343; 55 NSWLR 252 The Director of Public Prosecutions (Commonwealth) v De La Rosa [2010] NSWCCA 194; 205 A Crim R 1
Category:	Principal judgment
Parties:	Regina – Applicant Crown Bowden Owen Barker - Respondent
Representation:	Counsel: Mr P Ingram SC – Applicant Crown Belinda Rigg SC - Respondent   Solicitors: Solicitor for Public Prosecutions – Applicant Crown Legal Aid NSW - Respondent
File Number(s):	2014/358781
Decision under appeal	Court or tribunal: District Court of NSW Jurisdiction: Criminal Date of Decision: 27 November 2015 Before: Jeffreys DCJ File Number(s): 2014/358781

Judgment

1. BATHURST CJ: I agree with the order proposed by Hoeben CJ at CL and with his Honour’s reasons.

2. HOEBEN CJ at CL:

Offences and sentence

The respondent pleaded guilty to two counts of dangerous driving occasioning death, contrary to s 52A(1)(c) of the Crimes Act 1900 (NSW) for which the maximum penalty is imprisonment for 10 years. He also pleaded guilty to one count of dangerous driving occasioning grievous bodily harm, contrary to s 52A(3)(c) of the Crimes Act 1900 (NSW) for which the maximum penalty is imprisonment for 7 years.

3. The offences occurred when the respondent lost control of a utility motor vehicle which he was driving on the night of 5 December 2015 at Leeton. Two passengers in the cabin of the vehicle were killed and a third passenger on the back tray of the vehicle was injured.

4. The respondent was sentenced by Jeffreys DCJ on 27 November 2015 as follows:

Count 3 – cause grievous bodily harm to Kyle Dalzell by dangerous driving – imprisonment with a non-parole period of 6 months to commence 27 November 2015 and to expire 26 May 2016 with a balance of term of 8 months to expire 26 January 2017.

Count 1 – cause the death of Chloe Hardy by dangerous driving – imprisonment with a non-parole period of 10 months to commence 27 March 2016 and to expire 26 January 2017 with a balance of term of 1 year and 6 months to expire on 26 July 2018.

Count 2 – cause the death of Jake Isbister by dangerous driving – imprisonment with a non-parole period of 10 months to commence 27 September 2016 and to expire 26 July 2017 with a balance of term of 1 year and 6 months to expire on 26 January 2019.

5. The total effective sentence for all three counts was imprisonment for a term of 3 years and 2 months with a non-parole period of 1 year and 8 months. The total non-parole period (20 months) was 52.6% of the total head sentence (38 months). The effective non-parole period extended from 27 November 2015 to 26 July 2017. The balance of term of 1 year and 6 months will expire on 26 January 2019.

6. The respondent was also sentenced in relation to two related offences on a s 166 Certificate. These offences comprised a charge of negligent driving contrary to s 117(1)(c) of the Road Transport Act 2013 (NSW) for which the maximum penalty was 10 penalty units and which related to the respondent driving the vehicle earlier on the same night on two separate occasions while having persons on the back tray over a total distance for both offences of more than 13 kms. The sentencing judge imposed convictions without further penalty pursuant to s 10A of the Crimes (Sentencing Procedure) Act 1999 (NSW) for the two negligent driving offences. His Honour disqualified the respondent from driving for the automatic period of 3 years commencing 26 July 2017.

7. This is a Crown appeal brought by the Director of Public Prosecutions pursuant to s 5D of the Criminal Appeal Act 1912 (NSW) against the sentence imposed on the respondent by his Honour on 27 November 2015. The Notice of the s 5D Crown Appeal was signed on behalf of the DPP on 16 December 2015 and a copy of the Notice was served on the respondent two days later.

8. The Crown relied upon the following grounds of appeal.

Ground 1 – The learned sentencing judge erred by failing to take into account all the factors relevant to the proper assessment of the objective seriousness of the offences and the moral culpability of the respondent having regard to the terms of the Agreed Facts and the evidence given by the Respondent.

Ground 2 – The learned sentencing judge erred by formulating sentences that were predicated upon an erroneous finding that the Respondent was an inappropriate vehicle for general deterrence.

Ground 3 – The learned sentencing judge erred by erroneously ameliorating the non-parole periods of the sentences upon the basis that it was a “special circumstance” for the purposes of s 44(2) of the Crimes (Sentencing Procedure) Act that the present are the first custodial sentences to be served by the Respondent.

Ground 4 – The learned sentencing judge erred by misapplying the relevant guideline judgments.

Ground 5 – The terms and non-parole periods of the individual sentences are each manifestly inadequate and “plainly unjust”.

Ground 6 – The terms and the non-parole periods of the total effective sentence are each manifestly inadequate and “plainly unjust”.

Ground 7 – The period of driver’s licence disqualification was manifestly inadequate and “plainly unjust”.

Factual background

9. The vehicle involved was a black 2003 single cab Toyota Hilux, registration number EJT 005, with a flat tray. The respondent did not own the vehicle. He had, however, driven it on previous occasions. He was aware that the vehicle had a soft suspension which caused it to handle poorly. On the day of the accident, the respondent was the designated driver who had not consumed alcohol but had been driving his friends to and from various locations. At approximately 8.30pm the respondent drove the vehicle with Jake Isbister and Eaden Turner in the front cabin and with Kyle Dalzell on the rear tray. The respondent drove the vehicle a distance of approximately six kilometres to Seianne Isbister’s house in Canal Road, Yanco. This was the first of the negligent driving offences.

10. This group, with the respondent driving, left those premises at approximately 10.30pm. On this occasion, Isbister and Dalzell were both on the rear tray of the vehicle and Turner was in the cabin. The respondent drove the vehicle approximately eight kms. The vehicle did not speed, nor was it driven in a dangerous manner. The fact that Isbister and Dalzell were positioned on the rear tray during the journey gave rise to the second of the negligent driving offences.

11. At 11.25pm Turner received some messages from a female acquaintance as a result of which the respondent drove to McDonalds at Leeton where Turner met up with her and her friends, one of whom was Chloe Hardy. They arrived in a black Holden Astra sedan which was being driven by Jessica Campbell.

12. The young persons decided to collect the respondent’s swag from his house in Boronia Road Leeton and then go to Middle Beach to spend the night. Turner told Chloe Hardy that she should go with the respondent in his vehicle so that he could sit with Ms Campbell. Ms Hardy got into the middle seat of the vehicle. She had never met the respondent before.

13. When the respondent drove to his house, Chloe Hardy was in the middle of the front seat with Jake Isbister in the passenger seat and Kyle Dalzell, seated on a toolbox on the rear tray. No-one in the vehicle was wearing a seatbelt.

14. After departing from his home and with each passenger in the same position, the respondent drove into Petersham Road and travelled along it. There is a stop sign at the intersection of Petersham Road and Fivebough Road. As the respondent approached the stop sign, he caused the vehicle to slow down but did not apply the brakes. After the intersection, the respondent began accelerating. Dalzell, who had been standing on the tray, sat down as the vehicle gathered speed. He squashed a swag between his legs and began to hold on more tightly. When they got to the intersection of Grevillea Street, the vehicle hit a crest. Dalzell felt the front of the vehicle bounce up. The vehicle’s front suspension lifted, placing it off balance, causing it to sway from side to side. As the vehicle did this, Dalzell was thrown from side to side on the tray.

15. Immediately before the vehicle started swaying from side to side, it was travelling at no less than 104 km/h. The prevailing speed limit was 60 km/h. Scientific examination showed that the road on which the accident took place was straight. It was bounded by rural land on the eastern side and residential dwellings on the western side. The road was lit by street lights which ran along its eastern side. The road surface was dry bitumen and varied between 5.9 and 6.07 metres in width. The road surface was in poor condition. There was “damage to the road surface, had been patched in numerous sections with some sections still requiring repair thus resulted in an uneven road surface along Petersham Road.” The intersection with Grevillea Road was raised at the centre line. On the eastern side of the intersection was Grevillea Road which was unsealed. On the western side was Grevillea Street which was sealed. There was a low mound of loose gravel on the northbound side of Petersham Road. The respondent knew that the road surface in Petersham Road was in a poor condition.

16. When the vehicle was approximately 57 metres through the intersection it began to rotate in a clockwise direction. It crossed to the western side of Petersham Road and the rear of the vehicle began to rotate in a anti-clockwise direction. As it did so, a wheel left the edge of the road and the vehicle continued to travel sideways back to the eastern side of Petersham Road. As it did so, it began to roll nearside over offside. When it began rolling, Dalzell was thrown from the rear tray. The vehicle continued rolling until it stopped upside down and slid on its roof into an irrigation canal. The vehicle came to rest at a distance of 135 metres from the point where the nearside wheels first travelled off the bitumen after the Grevillea Street intersection. It was estimated that the vehicle rolled four to five times.

17. At some point during that rolling process, Chloe Hardy was ejected from the vehicle. She landed a distance of 10.8 metres further south of where the vehicle came to rest. She was lying on an angle so that her head was on the road but the rest of her body was on the grass verge. The passenger side of the cabin was crushed. The respondent and Jake Isbister were still in the vehicle when it landed in the canal. Most of the cabin of the vehicle was submerged in 1.5 – 2 metres of water.

18. The car driven by Jessica Campbell was approximately 150 metres behind the respondent as the vehicle began to sway from side to side. Ms Campbell had not attempted to keep up with the respondent’s vehicle, but instead continued to drive at 60 km/h. When she saw the respondent’s vehicle begin to roll, she sped up and stopped on the road next to where the utility had come to rest in the canal. Turner got out of the vehicle and ran to where the utility was. He saw that the respondent was still in the utility and helped him get out. Chloe Hardy was observed to be bleeding from her mouth, head, ears and her breathing was laboured and erratic.

19. The respondent was seated on the ground. Kyle Dalzell was standing next to him. A search found Jake Isbister approximately 5 metres from the rear of the utility under water. He was pulled out of the water by the respondent and laid on the bank next to the canal. He was bleeding from his mouth and head.

20. Shortly after 12.30am a paramedic arrived at the scene. When she checked Jake Isbister she found him to have no pulse. He was cyanosed with significant head injuries. Chloe Hardy was placed on a stretcher and moved to the back of an ambulance. She was not breathing, had no pulse, was cyanosed and suffering from significant head injuries.

21. Kyle Dalzell was treated at the scene for his injuries before being conveyed by ambulance to the Leeton Hospital. He was later transferred to the Wagga Wagga Base Hospital by helicopter. Chloe Hardy and Jake Isbister were taken to the Leeton Hospital where life was pronounced extinct in relation to each of them. Port mortems for Chloe Hardy and Jake Isbister found that they had died as a result of major head injuries.

22. Kyle Dalzell suffered the following injuries.

A large laceration to his forehead, with bone exposed requiring surgery.

A fracture to the left eye socket.

A fracture to the left orbital wall.

A fracture to the left maxillary antrum.

Grazes to his left cheek.

Severe bruising and grazing to his left rib area.

Grazing to his left hand, elbow, forearm, buttock and leg.

He was released from hospital on 8 December 2014.

23. The respondent attended Leeton Police Station at 9.50am on 5 December 2014, shortly after being released from hospital. He participated in an electronic interview and admitted to being the driver of the vehicle at the time of the collision. He stated that he was travelling at approximately 80km/h before the collision. He was then charged with the offences to which he in due course pleaded guilty.

Remarks on sentence

24. Jeffreys DCJ observed that the offences to which the respondent had pleaded were “serious criminal matters”. His Honour referred to the guideline judgments of R v Jurisic (1998) 45 NSWLR 209 and R v Whyte [2002] NSWCCA 343; 55 NSWLR 252. As a preliminary matter, his Honour observed that the guideline sentences discussed in those judgments related to a late plea so that further adjustment would need to be made where, as occurred here, an early plea had been entered.

25. His Honour set out the aggravating factors and comments made thereon by Spigelman CJ in R v Whyte at [215] – [218]. His Honour then set out the following extracts from R v Whyte:

“228   “In the above list of aggravating factors items (iii) - (xi) 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 the 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.

229   The guideline for offences against s 52A(1) and s 52A(3) of the Crimes Act 1900 for the typical case identified above should be:

“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 generally be appropriate”.

230   In the case of a low level of moral culpability, a lower sentence will of course be appropriate.

…

232   The guideline is, to reiterate, a “guide” or a “check”. The sentence imposed in a particular case will be determined by the exercise of a broad discretion taking into account all the factors required to be taken into account by s 21A of the Crimes (Sentence Procedure) Act.”

26. In addition, his Honour set out the following quotation from DPP v Samadi [2006] NSWCCA 308 (Mason P; Sully and Latham JJ):

“14    … It is clear that an individual aggravating factor is capable of indicating a high degree of moral culpability, although that conclusion is more likely where aggravating factors exist in combination. According to the Chief Justice (at par [228]), "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."

…

17 … In R v Errington [2005] NSWCCA 348, Mason P commented that:

“There is a wide spectrum of behaviour indicative of differing levels of moral culpability, indeed differing degrees of abandonment [of responsibility]. It is not required that cases be assigned to one or other of two pigeon holes marked respectively “momentary inattention or misjudgment” and “abandoned responsibility”. In R v Khatter [2000] NSWCCA 32, Simpson J (dissenting) held (at [31]:

“Offences under s52A are not divided into those of momentary inattention and those of abandonment of responsibility. Those are the two extremes. There are shades and gradations of moral culpability in different instances of the offence and it is proper for the courts to recognise a continuum, rather than a dichotomy, when assessing moral culpability.”

Sully J (Carruthers AJ concurring) agreed with these remarks, while differing from her Honour in the disposition of the appeal.”

27. His Honour observed that concepts such as “abandonment of responsibility” and “low level of culpability”, although used in the guideline judgments, should not be treated as terms of art. His Honour concluded that he should not treat R v Whyte as a starting point, rather it should be used as a reference point. His Honour said:

“I need to consider where, in the continuum, this driving falls. The Crown, in her helpful submissions, submits that the moral culpability involving the offender’s course of driving is above or at the middle of the range.

In my view, so far as the continuum is concerned, it is my view that the moral culpability of the offender in this case is towards the middle of the continuum and possibly just below the middle of the continuum.” (Sentence judgment, 13.9 – 14.1)

28. His Honour concluded that the dangerous driving relevant to the accident was the acceleration by the respondent, after he passed the stop sign to 104 km/h when the vehicle hit the mound. This acceleration took place over a distance of 700 metres. His Honour had regard to the fact that the respondent was well aware that none of the passengers was wearing a seatbelt and in particular, that one of them was positioned on the rear tray of the vehicle. His Honour concluded:

“… taking into account all of those circumstances, this is a matter that comes within the medium range and towards the lower medium range of the continuum spoken in the guidelines.” (Sentence judgment, 14.9)

29. His Honour had regard to the respondent’s subjective case. The respondent left school when he completed year 10. He thereafter moved to Wagga Wagga to work as a horse breaker and rodeo participant. Rodeo riding became a passionate pursuit of his and he engaged in little else apart from participating in competitions and training for them. After a year in Wagga Wagga, he returned to Leeton and commenced working in an abattoir. He continued to pursue his rodeo riding interests.

30. He suffered riding accidents which required surgery and which led to his employment being terminated. Because of that, his employment leading up to the accident was somewhat intermittent. Subsequent to the accident, the respondent was able to find regular employment in a food lot. He was aged 19 years and 3 months at the time of the accident.

29. The respondent’s father gave evidence that before the accident, he was a competent and reliable worker. He was a keen rodeo rider with aspirations to ride in rodeo competitions overseas. He said that the respondent had been severely affected by the accident and that he and his mother were very concerned about the respondent’s fragile mental state, so much so that they took shifts in observing him.

30. The respondent gave evidence. In the year before the accident, he had driven about 65,000 kms to rodeos in NSW, Victoria, Queensland and South Australia. He used to ride in rodeos every weekend. He was aware that the vehicle which he was driving at the time of the accident handled differently from the vehicle which he owned. It steered differently, its suspension was not as good and it was a lot saggier. He had only driven that vehicle on about 30 different occasions over short distances. He knew of the poor condition of the road. He knew that Jake Isbister did not have a seatbelt on but he did not know whether Chloe Hardy was wearing one. He wrote a letter addressed to the families of Chloe Hardy and Jake Isbister, but was so emotionally affected that he was unable to read the letter in court and his father read it on his behalf.

31. The respondent was examined by a psychologist, Mr Borenstein, whose report was before the court. The respondent confirmed that what he had told Mr Borenstein was the truth. His Honour concluded that the respondent had shown deep and genuine contrition and that there was evidence of “self guilt” and “self punishment”. His Honour reached that conclusion by reference to the respondent’s participation in an interview with police, his plea of guilty, what he told the psychologist and what was contained in the testimonials from his mother and other persons. His Honour had regard to the evidence of the respondent’s father, who described his son as “completely shattered”.

32. The respondent told Mr Borenstein that following the accident, he was socially limited in contrast to his usual outgoing self. He rarely left his parents’ home. He became anxious in crowds and got very nervous. He reported physical symptoms of anxiety such as chest pain, perspiration, elevated heart rate and palpitations. He consciously sought to avoid discussions or memories of the motor vehicle accident.

33. Before the accident he enjoyed 10 hours of sleep a night but afterwards slept for only short periods. He suffered a reduced appetite and had lost approximately 16 kilograms in weight since the accident. Before the accident he was a regular attender at the gym, in preparation for travel to the United States to compete in rodeos, but had now let go of that ambition. He no longer attended the gym and his motivation was compromised.

34. He told Mr Borenstein that he had nightmares of the accident. He said “I’m constantly dreaming about drowning or picking Jake up out of the water”. He estimated that those dreams occurred up to four times a week. He awoke from those dreams startled, tearful and perspiring. The respondent said “I try not to think about it, telling myself not to think about it. I end up thinking about it more”. He found it difficult to enjoy anything since the accident and harboured extensive guilt. He reported emotional lability, teariness and mood fluctuations.

35. Mr Borenstein’s conclusion in his report was:

“Mr Barker’s diagnosis is that of major depression (recurrent type) and chronic post-traumatic stress disorder (PTSD). Mr Barker’s psychological disorder dates to the accident and symptoms remain unabated. Mr Barker takes antidepressant medication as prescribed by his general practitioner. He had three counselling sessions with a psychologist which he said made matters worse.

…

Mr Barker harbours considerable guilt. He feels responsible for the accident. He mourns the loss of his very close friend Jake and also Chloe.

…

A period of incarceration will add to Mr Barker’s current stress, exacerbate as well as magnify his psychiatric/psychological disorders, PTSD and major depressant (recurrent type and anxiety panic). Mr Barker’s current mental state is precarious. I recommend Mr Barker engage in psychological treatment with a therapist who will guide Mr Barker gently through the process of managing the effects of trauma and grief.”

38. His Honour quoted from the judgment of McClellan CJ at CL in The Director of Public Prosecutions (Commonwealth) v De La Rosa [2010] NSWCCA 194; 205 A Crim R 1 at [177]. It is not clear from those quotations what factors relating to the respondent’s mental health his Honour was taking into account. His Honour specifically referred to the following:

“It may also have the consequence that the offender is an inappropriate vehicle for general deterrence resulting in a reduction in the sentence which would otherwise have been imposed.

It may mean that a custodial sentence may weigh more heavily on the person because a sentence will be more onerous for that person. The length of the prison term or the conditions under which it is served may be reduced.

It may reduce or eliminate the significance of specific deterrence.

I should stress that the mental health problems of an offender need not amount to a serious psychiatric illness before they be relevant to the sentencing process. The circumstances may indicate that when an offender has sentences that are of moderate severity it may nevertheless be appropriate to moderate the need for general or specific deterrence.”

39. His Honour considered the question of accumulation and concurrency (Sentence Judgment, pp 19-20), having regard to the total criminality involved in the respondent’s offending. On that issue, his Honour relied upon the observations of Hunt AJA in R v Janceski [2005] NSWCCA 288 where Hunt AJA said:

“21   The other sub-category is where the one action of the offender causes a number of people to be injured and where separate charges are laid in relation to each victim.

…

23   In a case falling within the second category, separate sentencing should usually be fixed which remain partly concurrent and partly cumulative, each sentence being appropriate to the existence of only one victim and the aggregate of the sentences reflecting the fact there are multiple victims resulting from the same action by the offender. The extent to which there should be an overlap and the partial accumulation will depend on what is required to represent the totality of the criminality involved in the one act of the offender.”

40. His Honour found that although the injuries to Mr Dalzell amounted to grievous bodily harm, they could not be described as catastrophic and were properly to be regarded as reasonably moderate. His Honour found special circumstances which warranted an adjustment of the normal ratio between the non-parole periods and the head sentences. Those special circumstances comprised the respondent’s youth, that he had not previously served a sentence of imprisonment, the need for a longer period of support in relation to his emotional issues and mental problems when he re-entered the community. The resulting ratio between the effective non-parole period and the head sentence was 52.6%.

41. His Honour then imposed the sentences which are the subject of this application.

Crown Appeal

42. Grounds 5 – 7 effectively raise the same issue and set out the principal complaint of the Crown. Grounds 1 – 4 are really particulars of the Crown’s primary contention, i.e. that the sentence is so manifestly inadequate that it is plainly unjust. The Crown contends that the sentences imposed upon the respondent are “plainly unjust” because they are so far below the range of sentences that could justly be imposed for the index offences consistent with appropriate sentencing standards and are each so manifestly inadequate as to be likely to undermine public confidence in the proper administration of criminal justice in the sentencing of offenders.

43. The basis for the complaint in Ground 1 is that his Honour assessed the respondent’s moral culpability by reference to two factual matters, i.e. the speed at which the vehicle was travelling when it hit the bump and that two passengers were not wearing seatbelts and a third passenger was in the tray of the utility. The Crown submitted that there were other matters which his Honour should have taken into account but did not. These are particularised by the Crown as follows:

1. The respondent had slowed but not stopped at the Fivebough Road “STOP” sign merely because he wanted to get to the camping site more quickly.

2. The respondent had intentionally accelerated the vehicle away from the Fivebough Road intersection along Petersham Road to a speed which he knew was excessive merely because he wanted to get to the camping site more quickly.

3. The respondent knew from past experience of it that the road surface along the relevant part of Petersham Road was potholed and rough.

4. The respondent knew from past experience of it that the vehicle he was driving had a soft suspension, which caused it to handle poorly.

44. The Crown submitted that when those matters are taken into account with the speed at which the vehicle was travelling and the unrestrained status of the passengers, a proper characterisation of the moral culpability of the respondent would be above the midrange or alternatively, along the continuum identified by his Honour, would approach an abandonment of responsibility for his conduct by the respondent. The Crown submitted that whichever way the matter is approached, his Honour’s assessment of the objective seriousness of the offending was flawed because he failed to take into account all of the relevant aggravating factors.

45. The Crown submitted that no proper assessment of objective seriousness could rationally place the respondent’s culpability at below midrange or as involving a short period of inattention.

46. Ground 2 raised the proposition that because the sentence imposed on the respondent was predicated on an erroneous finding that he was an inappropriate subject for general deterrence, it was inadequate and unjust. The Crown submitted that because the respondent’s mental health issues had arisen after and because of the motor vehicle accident, general deterrence remained relevant. This was because of the need to denounce by way of the imposition of an appropriate sentence, the wrongfulness of the respondent’s conduct, having regard to the particular circumstances surrounding it, i.e. irrationally speeding, lack of restraint of the passengers and full knowledge of the deficiencies of the road and the motor vehicle. The Crown accepted that specific deterrence was not relevant and that the respondent would find a custodial sentence more difficult because of his mental issues, remained relevant.

47. Ground 3 raised a relatively minor issue. Its purport was that one of the matters which his Honour took into account as justifying a finding of special circumstances was not a relevant consideration, i.e. that this was the first custodial sentence to be served by the respondent.

48. While the point taken by the Crown is correct, there were three other powerful (and unchallenged) factors on which his Honour’s finding of special circumstances was based. The fact that his Honour may have erred in the way asserted by the Crown would have little practical effect on the finding of special circumstances. Nevertheless the Crown challenged the extent of the reduction for special circumstances as excessive.

49. Ground 4 was largely a repetition of Ground 1, although expressed in terms of the guideline judgments in Jurisic and Whyte. The substance of the Crown complaint was that his Honour failed to properly assess the respondent’s moral culpability/degree of abandonment of responsibility because he had failed to properly identify all of the aggravating factors relevant to the driving. Additionally, the Crown submitted that his Honour had failed to give appropriate weight to aggravating factors (i) and (ii), i.e. the extent and nature of the injuries inflicted and the number of people put at risk. The Crown emphasised that one person had suffered serious injuries while two others had lost their lives. These considerations were serious and needed to be reflected in the sentence imposed. On the Crown case they were not.

50. The Crown submitted that when those matters are taken into account with the aggravating factors relevant to the respondent’s driving, the guideline judgments were an important reference point for determining an appropriate sentence for the respondent. The Crown submitted that in those respects proper effect was not given to the guideline judgments.

51. The Crown particularly challenged the level of accumulation allowed for by his Honour. The partial accumulation of count 1 on count 3 was 8 months and that of count 2 on count 1 was 6 months. The Crown submitted that when proper allowance was made for the importance of human life and proper regard was had to the moral culpability of the respondent, such modest accumulation of sentences was patently inadequate so that the intervention of this Court was required. The Crown also relied upon the maximum penalties of 10 and 7 years respectively for these offences, even though the offending resulted from a single course of action on the part of the offender.

Consideration

52. Crown appeals pursuant to s 5D of the Criminal Appeal Act 1912 must be brought for the primary purpose of this Court providing governance and guidance to sentencing courts. That requirement operates as a “limiting purpose” for such appeals and, by contrast with the Court’s jurisdiction in sentence appeals brought by offenders, so circumscribes the jurisdiction of this Court on Crown appeal as to prevent intervention (other than on the ground that the sentence is “plainly unjust” by reason of its manifest inadequacy) for the mere “correction of error in the individual sentencing proceedings” Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462; R v Tuala [2015] NSWCCA 8).

53. Accordingly, in a s 5D Crown appeal which asserts some errors of sentencing principle (apart from the ground that the sentence is “plainly unjust”) the Crown must:

1. Establish the existence of error(s) by the sentencing judge within one or more of the first four categories referred to in House v R [1936] HCA 40; 55 CLR 499 at 505 (R v Tuala at [99]);

2. Identify the sentencing principle which is engaged by such errors: (R v Tuala at [99]);

3. Establish that the sentence under appeal is manifestly inadequate: (Regina v Janceski per Hunt AJA at [25] with whom Spigelman CJ and Howie J agreed).

54. This Crown appeal sought to engage the discretion of the Court to provide governance and guidance to sentencing courts so as to ensure that due consideration continues to be given by such courts to properly applying the guideline judgments relating to dangerous driving occasioning death and/or grievous bodily harm and thereby passing adequate sentences to meet the requirements of the purposes of sentencing, including general and specific deterrence.

55. Crown appeals pursuant to s 5D might also be brought for the purpose of this Court providing governance and guidance to sentencing courts where the sentence under appeal is so manifestly inadequate that it is “plainly unjust” and is thereby likely to undermine public confidence in the proper administration of criminal justice in the sentencing of offenders: (Bugmy v The Queen [2013] HCA 37; 249 CLR 571 at [24]). Such appeals involve the fifth category of error referred to in House v R.

56. The present Crown appeal was also brought for the purpose of engaging the discretion of this Court to intervene and set aside the terms and non-parole periods of the sentences imposed upon the respondent because the Crown asserted that they were each “plainly unjust”, being so far below the range of sentences that could justly be imposed for the index offences, consistent with appropriate sentencing standards and that they are each so manifestly inadequate as to be likely to undermine public confidence in the proper administration of criminal justice in the sentencing of offenders.

57. Applying those principles, I am satisfied that his Honour did fail to take into account all the relevant aggravating factors when determining the moral culpability of the respondent for the offending. This resulted in his Honour understating the objective seriousness of the offending. Not only was the effect of this error demonstrated by the inadequacy of the sentences themselves but it was compounded by an excessive reduction for special circumstances and a failure to comply with the principle of totality by properly accumulating the sentences.

58. While it is clear that the respondent presented a powerful subjective case, particularly that relating to the psychological consequences for him of the accident, it was not such as to justify an almost 50% ratio between the non-parole period and the head sentence. While it is true that the offending arose from a single course of action, the modest accumulation failed to have regard to the catastrophic consequences of the offending, i.e. the deaths of two people and the serious injuring of another. While acknowledging the importance of the guideline judgments in R v Jurisic and R v Whyte the practical effect of the sentences imposed by his Honour was to disregard the rationale behind those judgments. This leads to the inevitable conclusion that the effective sentence imposed by his Honour was manifestly inadequate.

Residual discretion

59. A finding of manifest inadequacy does not end the matter. The effect of the residual discretion also needs to be considered. In doing so it needs to be kept in mind that the respondent has already served 8 months of his sentence with approximately 12 months of the non-parole period remaining.

60. It is necessary for the Crown to demonstrate that the discretion to resentence should be exercised by this Court (CMB v Attorney General for New South Wales [2015] HCA 9; 89 ALJR 407 at [6]). There French CJ and Gageler J said:

“33 Descriptions of the discretion expressly so conferred on the Court of Criminal Appeal as "residual" ought not to be misunderstood. To enliven the discretion, it is incumbent on the appellant in an appeal under s 5D to demonstrate that the sentence pronounced by the court of trial turned on one or more specific errors of law or of fact, or, in the totality of the circumstances, was unreasonable or plainly unjust. The discretion is residual only in the sense that its exercise does not fall to be considered unless that threshold is met. Once the discretion is enlivened, it remains incumbent on the appellant in an appeal under s 5D to demonstrate that the discretion should be exercised.”

61. To similar effect, Kiefel, Bell and Keane JJ said:

“54   … Where error of that kind is established in an appeal by the prosecution, the Court of Criminal Appeal may in its discretion dismiss the appeal notwithstanding that the sentence is erroneously lenient. This is sometimes described as "the residual discretion". As French CJ and Gageler J explain, the discretion is residual only in that its exercise does not fall to be considered unless House error is established.”

62. There are two considerations which strongly favour this Court exercising its discretion not to intervene and resentence despite the errors in sentencing established by the Crown. The first is the acceptance by the Crown at first instance that the moral culpability of the respondent could be described as in the middle range and in not suggesting that there had been an abandonment of responsibility.

63. In the course of submissions before his Honour, the Crown said:

“… and the Crown certainly has not urged that this course of driving was at the very high end of the range of total abrogation of responsibility but the Crown does say that it’s at the middle or above the middle of the range of seriousness and moral culpability in terms of the conduct in driving.” (Transcript, 18.11.2015 at 26.25)

64. The approach of the Crown at first instance was regarded in CMB as an important matter when considering the residual discretion (at [38], [64], [67] and [68]). The second consideration is the parlous psychological state of the respondent. The evidence on this issue is all one way and was not disputed by the Crown. It is clear from the respondent’s affidavit that while in custody he has not received treatment for his psychological conditions, that his nightmares continue and that he has already suffered significant consequences because of the Crown appeal in particular because it has delayed his classification process. In this case there is also evidence of actual distress experienced by the respondent as a result of the Crown appeal having been brought.

65. The undisputed evidence, not only of the psychologist Mr Borenstein but also of the respondent’s father, is that the respondent’s symptoms of anxiety and depression involving as they do self-blame and guilt, are severe. There is nothing in the material before the Court to suggest that these symptoms have in any way ameliorated while the respondent has been in custody. On the contrary, the respondent’s affidavit indicates no improvement. Accordingly, there exists a real risk that an increase in the respondent’s sentence would substantially and adversely affect his already fragile mental state.

Conclusion

66. It follows from the above analysis that although the Crown has established manifest inadequacy in the sentence imposed by his Honour, I am not persuaded that this Court should intervene and resentence the respondent. Accordingly, the order which I propose is that the Crown appeal under s 5D be dismissed.

67. PRICE J: I agree with Hoeben CJ at CL.

******

Decision last updated: 02 September 2016