R v Cahill; R v Byrne

[2020] NSWDC 224

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:	R v CAHILL; R v BYRNE [2020] NSWDC 224
Hearing dates:	7 February 2020, 29 April 2020
Date of orders:	22 May 2020
Decision date:	22 May 2020
Jurisdiction:	Criminal
Before:	Lerve CDJ
Decision:	Sentenced to imprisonment - see [193]-[206]
Catchwords:	Vehicular Manslaughter – street race – vastly excessive speed in built up area - young offenders – need for general deterrence – value of plea of guilty – assessment of moral culpability where only one offender impacts with deceased’s vehicle – onerous bail conditions
Legislation Cited:	Crimes Act, 1900 Crimes (Sentencing Procedure) Act, 1999
Cases Cited:	R v AB [2011] NSWCCA 229 R v Anderson [2012] NSWCCA 175 Aslan v R [2014] NSWCCA 114 Bae v R [2020] NSWCCA 35 R v Barnett [2016] NSWDC 302 R v Borkowski (2009) 195 A Crim R 1; [2009] NSWCCA 302 Conte v R [2018] NSWCCA 209 De Angelis v R [2015] NSWCCA 197 R v Despotovski [2020] NSWDC 110 R v Dib [2003] NSWCCA 117 Hoskins v R [2016] NSWCCA 157 Hijazi v R [2020] NSWCCA 97 Imbornone v R [2017] NSWCCA 144 R v Tristan Lee [2019] NSWDC 59 Lehn v R [2016] NSWCCA 255 Locke v R (2010) 207 A Crim R 34; [2010] NSWCCA 296 R v Magro [2019] NSWSC 343 Makarian v The Queen (2005) 208 CLR 357 Marrow v R [2015] NSWCCA 282 McNaughton (2006) 66 NSWLR 566 Milat & Klein v R [2014] NSWCCA 29 Muldrock v The Queen [2011] HCA 39 Ngati v R [2014] NSWCCA 125 Pullman v R (1991) 25 NSWLR 89 R v SY [2003] NSWCCA 291 R v Scott [1999] NSWCCA 233 Sullivan & Skillen v R [2008] NSWCCA 296 TG v R [2010] NSWCCA 28 R v Taufahema [2004] NSWCCA 833 R v Thompson & Houlton (2000) 49 NSWLR 383; [1999] NSWCCA 309 R v Whyte (2002) 134 A Crim R 53 WW v R [2012] NSWCCA 165 Zhao v R [2016] NSWCCA 179
Category:	Sentence
Parties:	Regina Matthew Thomas CAHILL Joshua Aaron BYRNE
Representation:	Counsel: Mr P Kerr (Crown Prosecutor) Ms C Mendes (for the offender Cahill) Mr M King (for the offender Byrne)   Solicitors: Ms L Hanshaw instructing the Crown Prosecutor Mr Z Tankard (Tankards Law) instructing Ms Mendes Mr J Cooper (ALS) instructing Mr King
File Number(s):	2017/325691 (Cahill)2017/320907 (Byrne)
Publication restriction:	None

REMARKS ON SENTENCE

Introduction

1. This matter is a significant tragedy on a number of levels. The life of a completely innocent person has been lost through the deliberate, reckless and thoughtless but moreover criminal conduct of these two offenders. The family of the deceased are understandably devastated and have been deprived of a loving husband and father. Because of the conduct that I have just described the two young offenders will be spending many years in custody and have effectively ruined a substantial part of what ought to be the best years of their lives. This tragedy could have been so easily avoided. All that was needed to avoid the tragedy in this matter was a moment’s reflection at the traffic lights at the intersection of Coleman and Edmondson Streets, Wagga Wagga from either or preferably both of the offenders.

2. Mathew Thomas Cahill was committed for sentence from the Wagga Wagga Local Court on 4 September 2019 in respect of the charge that:

“(He) on 23 October 2017 at Turvey Park in the State of New South Wales did unlawfully kill Craig Ian Smith”, contrary to s 18(1)(b) of the Crimes Act, 1900.”

3. Joshua Aaron Byrne was committed for sentence from the Wagga Wagga Local Court on 18 September 2019 in respect of the charge that:

“(He) on 23 October 2017 at Turvey Park in the State of New South Wales did unlawfully kill Craig Ian Smith”, contrary to s 18(1)(b) of the Crimes Act.”

4. The offences in respect of which both offenders were committed for sentence is commonly or shortly known as manslaughter, which is the description that I will use for the remainder of these remarks on sentence. This matter arises out of an impact between a motor vehicle being driven by the offender Byrne and a motor vehicle being driven by the deceased Mr Smith while the two offenders were engaged in a street race. As I observed at the sentence hearing on 29 April 2020, given the conduct of the offenders Manslaughter is most certainly the appropriate charge in the circumstances rather than an offence contrary to s 52A of the Crimes Act.

5. The maximum penalty for the offence is 25 years imprisonment. Parliament has not specified a standard non-parole period in respect of the offence. On the issue of the maximum penalty the plurality (Gleeson CJ, Gummow, Hayne & Callinan JJ; HcHugh agreeing with the joint decision but with his own reasons) in the High Court in Makarian v The Queen (2005) 208 CLR 357 at [31] said:

“It follows that careful attention to maximum penalties will almost always be required, first because the legislature has legislated for them; secondly, because they invite comparison between the worst possible case and the case before the court at the time; and thirdly, because in that regard they do provide, taken and balanced with all of the other relevant factors, a yardstick.” 

6. Although dealing with less serious offending but nevertheless offending relating to dangerous driving the comments of her Honour Judge Yehia SC in R v Barnett [2016] NSWDC 302 are apposite. Her Honour said at [3]-[4]:

“In matters such as this Judges are asked to perform an impossible equation. No human life can ever be equated with a period of imprisonment. No gaol term can return a loved one and a life should never be measured simply by the punishment meted out to an offender: R v Jarad Smith [2016] NSWCCA 75 per R A Hulme J at [18] endorsing the remarks made in R v Melissa McKeown [2013] NSWDC 22.

The sentence I impose does not and cannot measure the value of BS’s life. Instead it reflects the sentencing discretion informed by proper principle. It must reflect an adequate punishment, recognising the harm done and denouncing the conduct of the offender. The sentence must also reflect the objective seriousness of the offence, the offender’s moral culpability, his prospects of rehabilitation and the likelihood or unlikelihood of future offending.”

7. Although the offending and circumstances were entirely different to the matter presently under consideration but involving an offence of Manslaughter, the remarks by Wilson J in her remarks on sentence in R v Magro [2019] NSWSC 343 are also apposite in this matter. Her Honour said at [6]:

“No court could reflect the value of his life, or the depth of grief his death has caused, by a sentence of so many years and months of imprisonment…”

Discount for the pleas of guilty

8. Ordinarily where an offender is committed for sentence from the Local Court it is uncontroversial that the offender is entitled to 25% for the utilitarian value of the plea – see generally R v Thompson & Houlton (2000) 49 NSWLR 383; [1999] NSWCCA 309, R v Borkowski (2009) 195 A Crim R 1; [2009] NSWCCA 302 at [32]. However in this matter despite a concession that “it appears the authorities are against me” (p 35:34 on 29 April 2020) the Crown submits that because the manner in which the matters were conducted in the Local Court, including a defended committal, the utilitarian value of the plea should be 15%. The history of the matter before committal for sentence is set out in detail at paragraphs 62 to 66 inclusive of the Crown’s written submissions (MFI 1 on sentence). In this regard the Crown said in oral submissions (p 35:46):

“Well there are cases where discounts for less than 25% have been given to people who plead guilty in the Local Court. It has been acknowledged. It’s a matter for your Honour I don’t take it any further”.

9. Be that as it may, despite the Crown not providing any relevant authorities to support the stance the Crown takes, I am obliged to examine the authorities and come to a conclusion on this issue. I have gone to considerable trouble to deal with this matter, principally to ensure that this same controversy does not continue to surface.

10. It is significant that both offenders were initially charged with Dangerous Driving Occasioning Death, contrary to s 52A of the Crimes Act. The charge of Manslaughter was brought against both offenders in the course of the proceedings in the Local Court and at a time after the Office of the Director of Public Prosecutions assumed carriage of the matter.

11. In R v Borkowski Howie J (McClellan CJ at CL, Simpson J agreeing with brief additional comments) said at [31]:

“As a matter of general practice, the maximum discount for the utilitarian value of the plea of guilty should be awarded only to those accused persons who plead guilty in the Local Court and continue that plea of guilty in the District Court. There may be a valid reason in the exercise of discretion for awarding the maximum discount where the plea of guilty does not occur until the District Court but that would be exceptional and arise from the peculiar factual situation in a particular case. The amount of the discount cannot depend upon the practice of the particular court based upon its administrative arrangements. It is difficult to see how, in the usual case, a plea of guilty on arraignment could justify a discount of more than about 15 per cent. There was nothing in the present case that justified a discount above that range.”

12. A little earlier in his judgment in Borkowski Howie J said at [27]:

“In Thomson and Houlton, the Chief Justice, when discussing the extent of the discount for the utilitarian value of the plea, stated:

‘[154] There are however two circumstances which will generally affect the appropriate level of discount in a particular case:

(i) The time at which a plea is entered. A plea entered at committal has a more significant utilitarian benefit than a plea entered at first listing, which in turn has the greater benefit than a plea entered at the beginning of trial.

(ii) The complexity of the issues about which evidence will have to be gathered and adduced affects the value of the plea. The greater the difficulty of assembling the relevant evidence and the greater the length and complexity of the trial, the greater the utilitarian value of a plea.’”

13. In Zhao v R [2016] NSWCCA 179 Adams J (Hoeben CJ at CL, Button J agreeing) said at [66]:

“Any reduction in sentence made in recognition of the utilitarian value of a plea of guilty is a matter for the discretion of the sentencing judge. The principal consideration is the timing of a plea: De Angelis v R [2015] NSWCCA 197 at [55] per Simpson JA, with whom Button and Fagan JJ agreed…”

14. In De Angelis v R Simpson JA said at [55]:

“Two principles concerning the reduction to be allowed in respect of pleas of guilty are well established. The first is that any such reduction is a matter of discretion lying within the province of the sentencing judge, and not readily upset on appeal: see House v The King [1936] HCA 40; 55 CLR 499. The second is that the principal consideration is the timing of a plea; this is related to its utilitarian value.”

15. Johnson J (Bathurst CJ, Hoeben J (as his Honour then was) agreeing) in R v AB [2011] NSWCCA 229 said at [30]-[33]:

“A person who pleads guilty to a criminal offence is, of course, entitled to dispute facts (beyond the elements of the offence) for the purpose of sentence. Where such a dispute occurs, any contested questions of fact adverse to an offender, must be established to the criminal standard of proof: O'Neil-Shaw v R [2010] NSWCCA 42. An offender is not to be penalised because he or she disputes certain facts on sentence and requires the Crown to prove those facts.

[31] The position is analogous to that of a person who goes to trial, who may not be penalised for the manner in which the defence at trial was conducted: Siganto v The Queen [1998] HCA 74; 194 CLR 656 at 666-667 [30]-[34]. However, as is made clear in Siganto v The Queen , a person who goes to trial is not entitled to mitigation for a plea of guilty.

[32] Likewise, a person who pleads guilty but puts the Crown to proof on certain factual issues and who loses that dispute, is not entitled to the same discount for a plea of guilty, on utilitarian grounds, as a person who does not require such a contested hearing.

[33] These observations will have no application to the determination of the present Crown appeal. However, as a matter of general principle, this Court should state that the utilitarian value flowing from a plea of guilty is not a fixed element, and is capable of erosion as a result of the manner in which the sentencing hearing is conducted. This involves no more than an acknowledgment of the fact that what may be gained in utilitarian terms as a result of the avoidance of a trial may be lost, also in utilitarian terms, by way of a protracted sentencing hearing involving the adducing of evidence and the consumption of public resources for a purpose ultimately determined adversely to an offender.”

16. Bathurst CJ in brief additional comments in R v AB at [2]-[3] said:

“In par [33] of his judgment, Johnson J emphasises that, as a matter of general principle, the Court should state that the utilitarian value flowing from a plea of guilty is not a fixed element and is capable of erosion as a result of the manner in which the sentencing hearing is conducted. I agree. Whilst, as Spigelman CJ pointed out in R v Thomson & Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383 at [152], the primary consideration for the extent of a utilitarian discount was the timing of the plea this should not obscure the fact that there may be circumstances as Johnson J has pointed out where the utilitarian value may be eroded. Equally, there may be some exceptional circumstances in which it is appropriate to give a full utilitarian discount for a plea, notwithstanding the fact that it has not been entered at the earliest opportunity.

[3] That is not to say that sentencing courts should not generally continue to follow the approach in R v Borkowski [2009] NSWCCA 102; (2009) A Crim R 1, but merely that the principles have to be applied by reference to the particular circumstances in any case.”

17. R v AB was cited with apparent approval (by RA Hulme J, Bathurst CJ, Hall J agreeing) in Milat & Klein v R [2014] NSWCCA 29 at [151]-[152].

18. The Crown relied heavily on the procedural history of the matter in the Local Court to justify the submission that the utilitarian value of the plea was worth something less than 25%. Byrne was charged on 25 October 2017 and Cahill on 6 November 2017 with Dangerous Driving Occasioning Death. Early in 2018 the charges were increased to the charge of Dangerous Driving Occasioning Death in the aggravated form. In May 2019 a two day defended committal is held in the Local Court at the conclusion of which both offenders offer to plead guilty to a charge of Aggravated Dangerous Driving Occasioning Death. The matter was adjourned. On 9 August 2019 Cahill offers to plead guilty to Manslaughter and on 22 August 2019 Byrne makes the same offer. The committal dates have already been set out. Johnson J in R v AB made the point that the utilitarian value of the plea can by eroded because of the means by which the sentence hearing is conducted. It seems to me that the Crown gets no support for the contention that the discount for the plea should be something less than 25% from what is said in R v AB.

19. The Crown may get some support from the decision in McNaughton (2006) 66 NSWLR 566; [2006] NSWCCA 242, particularly at [43]-[49]. However, it is not immediately obvious from the judgment whether the offender in that case was committed from the Local Court for trial or for sentence. In any event, it seems that the later decision in Borkowski is accepted as the authority on discounts for pleas of guilty with offending contrary to state legislation. See for example the recent decision of Bae v R [2020] NSWCCA 35 at [52]-[53] per Johnson J, which decision was applied in Hijazi v R [2020] NSWCCA 97 at [37] per Walton J (Bell P, Johnson J agreeing).

20. Superficially the Crown may also get some support from what Howie J said in R v SY [2003] NSWCCA 291 at [87], namely:

“Further, in R v Dib [2003] NSWCCA 117 this Court held that the fact that the plea to the lesser offence is offered at the first reasonable opportunity does not automatically mean that a full discount for the plea should be given. Hodgson JA, with whom Barr J agreed, stated:

‘[5] If a plea is entered a long time after a person is first charged, but at a time when a lesser charge is substituted for a greater charge, the advantages to the administration of justice are less, even though the plea may have been made at the earliest opportunity. There is in any event no entitlement to a 25% discount; and the fact that in this situation there are less advantages to the administration of justice can justify a smaller discount.

[6] This approach may mean that in some cases an offender may obtain a lower discount just because the prosecuting authorities initially brought a greater charge than that ultimately pursued, so that the delay in the plea of guilty was not the offender’s fault. But this is consistent with the nature of the discount as being at least in part a recognition of practical advantages, and not merely a recognition of mitigation of culpability.’”

21. However, this needs to be looked at in the context of what his Honour said at [86], namely:

“It does not always follow that a plea is entered at the first reasonable opportunity simply because the plea occurs after negotiations with the Crown once the offender has been committed for trial.”

22. The decisions of Dib and SY were referred to by Howie J in his judgment in the decision of Sullivan & Skillen v R [2008] NSWCCA 296 at [15] - [16].

23. The Crown may also get some support from the decision of Lehn v R [2016] NSWCCA 255 where Bathurst CJ (Beazley P agreeing, RA Hulme and Schmidt J agreeing both with separate additional comments, Wilson J dissenting as to the outcome of the appeal) said at [62]:

“In that context, it must be emphasised that the grant of the utilitarian discount of 25% for a plea entered at the earliest possible opportunity is not mandatory. Section 22(1A) of the Sentencing Procedure Act provides that a lesser penalty imposed under that section must not be unreasonably disproportionate to the nature and gravity of the offence. Although it is well accepted, consistent with the guideline judgment in R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309 (Thomson), that a utilitarian discount of 25% will generally be granted for a plea entered at the earliest possible opportunity, it remains a matter for the discretion of the sentencing judge: Thomson at [153]; see also Marrow at [39].”

24. However, the initial statement by the Chief Justice is immediately followed by reference to s 22(1A) of the Crimes (Sentencing Procedure) Act (1999).

25. I note that in Lehn v R in the Court of Criminal Appeal the Crown conceded that the sentencing judge at first instance should have applied the 25% discount for the utilitarian value of the plea of guilty. However it seems that that concession was because of a denial of procedural fairness.

26. Adamson J (Hidden and Davies JJ agreeing) in Marrow v R [2015] NSWCCA 282 said at [39]:

“Furthermore, although the question of the percentage discount for a plea of guilty pursuant to s 22 of the Act is a matter of discretion, there is a general expectation (although not a rule) that, where a plea is entered at the earliest available opportunity, the maximum discount of 25% will be applied. The reason for this is that the discount for the utilitarian value of the plea is determined largely by the timing of the plea: see the Guideline Judgment of R v Thomson; R v Houlton (2000) 49 NSWLR 383 at [154] and R v Borkowski [2009] NSWCCA 102 at [32(1)]. In the present case, there was no indication from his Honour, prior to the imposition of the sentence, that this would not occur. Moreover, the Crown, by accepting that the plea was entered at the first available opportunity, can be taken to have accepted that the highest discount was appropriate.”

27. In the matter presently under consideration the two offenders pleaded guilty in the Local Court and were committed for sentence. The offence to which both offenders have pleaded guilty is Manslaughter that carries a maximum penalty of 25 years imprisonment. It is entirely appropriate that an offender have a full and complete understanding of the case against them before entering a plea of guilty to such a serious charge, which is a charge of homicide. There are agreed facts in respect of each of the offenders in the District Court. At “an early stage” must mean at an early stage after the full nature of the case is known to the offenders. If taken literally it could potentially mean the first return date.

28. I note that this matter was committed before the commencement of s 25D of the Crimes (Sentencing Procedure) Act. Had this matter been committed for sentence after that commencement the offenders would have been entitled to the 25% discount for the pleas automatically by virtue of that section.

29. It is regrettable that the Crown’s submission as to the utilitarian value of the plea being reduced by reason of the conduct of the committal proceedings was not accompanied by some authority from an appellate court or even a decision of this Court rather than the Crown simply submit, “It’s a matter for your Honour and I don’t take it any further”. After several hours of research I have been unable to find any authority that supports the Crown’s position that a discount of 15% should be applied in this matter in circumstances where the offenders were committed for sentence and maintained that plea in the District Court and where as opposed to situation in R v AB there was no dispute on the facts.

30. Given the seriousness of the charge, taken with the fact that the pleas of guilty were entered in the Local Court and maintained in the District Court with an agreed set of facts, I am of the opinion that I should follow what Adamson J in Marrow v R described as the “general expectation”. I am firmly of the opinion that both offenders are entitled to the full 25% discount for the utilitarian value of the pleas of guilty.

Facts

31. To add to the complications in this matter there is a separate set of facts for each offender. This matter is very much one of a joint criminal enterprise. The statement of facts in each matter is within the respective Crown tender bundles, exhibit A for Cahill and exhibit B for Byrne.

32. A detailed description of the scene would have been useful for anyone reading these reasons who is not familiar with the scene. An attempt by me during the preparation of these reasons to have the parties agree on a physical description of the scene was unsuccessful. Counsel for one of the offenders was understandably concerned about the expansion of the agreed facts by reason of that description. Mr King at the sentence hearing observed (p 21:07), “I think we all know what Coleman Street is like”. The difficulty is of course that many who read these reasons will not know what Coleman Street is like.

33. At the sentence hearing on 29 April 2020 Mr King tendered a photograph of the scene, which is reproduced hereunder. Coleman Street is the wide street generally east-west (or left to right on the page) in approximately the middle of the photograph.

34. The TAFE College is approximately 290 metres from the traffic lights at the intersection of Edmondson and Coleman Streets in Wagga Wagga. The Wagga Wagga High School is located on the south eastern side of the intersection and another High School (Kildare College) is located on the north western corner of the intersection. Coleman Street runs generally east-west and Edmondson Street runs generally north-south. There are two lanes in each direction for about 65 metres to the west of the intersection. The sign-posted speed limit in the area is 50 km/h. The intersection is controlled by traffic lights.

35. On Monday 23 October 2017 both offenders, who were apprentices, were attending the Wagga Wagga TAFE College for the academic component of their automotive courses. Shortly before 10am the class that both offenders were attending had the morning break or “smoko”. It was common practice for TAFE students to go to a nearby café some 2 kms from the TAFE College.

36. Cahill, intending to drive to this café took the driver’s position in his vehicle, a VT SS model Commodore sedan registered DCL-33B. He had two passengers who were also students, namely Connor Henderson and Bradley Heinecke. Cahill had a P2 Provisional Driver Licence. Byrne also intending to drive to the café took the driver’s position of his vehicle a VE Commodore sedan registered CSM-60L. Byrne held a P1 Provisional Driver Licence. He too had passengers, namely Matthew Frost and Nathan French.

37. The vehicles being driven by the offenders pulled up side-by-side in Coleman Street at the intersection of that street and Edmondson Street. Byrne’s vehicle was in the second lane, i.e. closest to the centre median and Cahill’s vehicle was in the first lane, i.e. closest to the gutter. They were facing a red signal.

38. The agreed facts in respect of Cahill recite at paragraph 8, “Whilst the Crown does not allege the race was planned prior to the offenders’ attendance at the traffic lights, upon the light turning green, both offenders accelerated aggressively through the intersection and commenced a street race”. For reasons that are not immediately apparent the concession “Whilst the Crown does not allege the race was planned prior to the offenders’ attendance at the traffic lights” is not contained within the facts that relate to Byrne. Be that as it may, the matter proceeded on the basis that there was no agreement between them or planning of the race prior to the attendance at the intersection. I note that this was the subject of an exchange between the Crown and Mr King at (p 41:22) at the sentence hearing. Mr King submitted (p 41:28) that, “…But the Crown has deliberately and intentionally deleted that concession from the facts in Mr Byrne’s case at para 8”. The Crown responded, (p 41:35), “I reject that. It’s a compromise document between the parties. If Mr King wanted it in there, it would be in there”. There should have been one set of facts common to both offenders.

39. The facts in respect of both offenders recite that a large number of independent witnesses described both seeing and hearing the two vehicles racing each other at very high speeds.

40. During the street race the deceased Craig Smith was seated in the driver’s seat of his Ford Falcon utility outside his home in Coleman Street. His vehicle was parked on the left side of the road (southern side of Coleman Street), i.e. the same side of the street on which the offenders were travelling.

41. At some point shortly before the impact Byrne, who was travelling well in excess of the sign posted speed limit, caused his vehicle to move to the incorrect side of the road to overtake Cahill’s vehicle. However, by the point (I presume that means the precise time of the impact) Byrne was travelling in his correct lane, i.e. the west bound lane.

42. At about the same time the deceased Mr Smith commenced a lawful u-turn from his position on the southern side of Coleman Street, intending to travel in an easterly direction towards the intersection of Coleman and Edmondson Streets. As he did so the front of Byrne’s vehicle impacted heavily with the driver’s door of the utility. The impact was such that it forced the deceased’s vehicle to travel approximately 30 metres in a westerly direction along Coleman Street where it came to rest with Byrne’s vehicle still attached. The agreed facts in respect of Byrne note that the vehicles came to rest on the incorrect side of the road.

43. The facts in respect of both offenders include that the tray of the deceased’s vehicle was almost completely detached from the cabin by the force of the impact. The facts in respect of Byrne go on to record that the transmission assembly of Byrne’s vehicle was completely detached from the motor and chassis of the vehicle.

44. Mr Craig Smith was killed instantly by the impact.

45. Byrne and French were able to free themselves from Byrne’s vehicle. Frost was trapped in the front passenger’s seat and was freed by rescue personnel. Byrne sustained lacerations to his hands. Byrne was seen to be upset and crying when he exited the vehicle. He admitted to a witness at the scene that the accident was his fault and that he had been driving at over 100 km/h.

46. Cahill’s vehicle was travelling behind Byrne’s vehicle at the time of the impact and avoided the collision. Cahill pulled over and parked his vehicle near the crash site and he and his passengers went to the aid of the deceased and the occupants of Byrne’s vehicle.

47. The facts in respect of both offenders note that two and a half seconds prior to the airbag in Byrne’s vehicle being deployed the vehicle was recorded as travelling at 143 km/h. Half a second prior to deployment of the airbag the vehicle was recorded as travelling at 130 km/h. The exact speed of Cahill’s vehicle is not known but it is agreed between the Crown and the offender Cahill that Cahill’s “top” speed would not have been less than 100 km/h.

48. Common to the facts in respect of both offenders is the statement that the impact occurred at about 10am on Monday 23 October, 2017 (incorrectly noted as 24 October in the facts in respect of both), a normal school day. The road surface was in good condition, the weather was fine and clear and the road surface was dry. Coleman Street is a road that provides a direct thoroughfare for traffic between Edmondson Street and Bourke Street. The distance from the traffic lights at the intersection of Edmondson and Coleman Streets to the point of impact is 550 metres.

Assessment

49. This matter is manslaughter by gross criminal negligence as it must be noting the decisions of Pullman v R (1991) 25 NSWLR 89 and R v Borkowski. I repeat what I said in the course of my reasons in the matter of R v Tristan Lee [2019] NSWDC 59 at [21]-[26], which the Crown extracted at paragraphs 11 and continuing of his written submissions:

“[21] It will be necessary for me to make an assessment of the seriousness of the matter. Gleeson CJ (Grove & Ireland JJ agreeing) said in R v Blacklidge unrep NSWCCA 12 December 1994:

‘It has long been recognised that the circumstances which may give rise to a conviction for manslaughter are so various, and the range of degrees of culpability is so wide, that it is not possible to point to any established sentencing tariff which can be applied to such cases. Of all crimes, manslaughter throws up the greatest variety of circumstances affecting culpability.’

[22] However, the Chief Justice went on to say:

‘At the same time, the courts have repeatedly stressed that what is involved in every case of manslaughter is the felonious taking of a human life. That is the starting point for a consideration of the appropriate penalty, and a key element in the assessment of the gravity of the objective circumstances of the case. (R v Dodd (1991) 57 A Crim R 349; R v Hill (1981) 3 A Crim R 397 at 402.)’

[23] In the decision of R v MD, BM, NA & JT (2005) 156 A Crim R 372; [2005] NSWCCA 342 the court (Spigelman CJ, Simpson J (as her Honour then was) and Howie J) said at [61]:

‘The felonious taking of human life has always been regarded by the law as a most serious crime. It could never be otherwise for the protection of human life must be a fundamental objective of any criminal law system in a civilised society R v Edwards (1996) 90 A Crim R 510.’

[24] Spigelman CJ (Hulme & Adams JJ agreeing) said in R v Hoerler (2004) 147 A Crim R 520; [2004] NSWCCA 184, which like Blacklidge was also a Crown appeal said at [44]:

‘…When sentencing for the offence of manslaughter, a court must always have regard to the full context in which death was caused. That includes consideration of the extent of violence and the risk of death or serious injury which accompany it. It also includes consideration of any matter impinging on the moral culpability of the offender where there was no intention to inflict such injury, which can vary significantly. Where there was such an intention, but murder was reduced to manslaughter by provocation or mental impairment, the degree of provocation or of impairment, also bearing on moral culpability, can also vary significantly.’

[25] In the course of submissions the Crown referred to the decision of R v Loveridge [2014] NSWCCA 120 (co-incidentally another Crown appeal) where the court (Bathurst CJ, Johnson & Hulme JJ) said at [229]:

‘When sentencing for manslaughter, a court must always have regard to the full context in which death was caused: R v Hoerler at 531 [44]. The surrounding circumstances may bear upon the objective gravity of the offence and the moral culpability of the offender: R v Hoerler at 531 [44]; R v Wilkinson (No. 5) [2009] NSWSC 432 at [61].’

[26] Going to another matter of general principle, Mr King in his very helpful and comprehensive written submissions refers to R v MD, BM, NA & JT. The Court said at [65]:

‘In many cases where an offender is convicted of manslaughter there will be exculpatory matters and personal circumstances that can lead the court to significantly ameliorate the sentence which might otherwise be imposed. However, as this Court pointed out in R v Troja (unreported, CCA 16 July 1991) it is important for the court to ensure that the subjective circumstances of an individual offender do not divert the court from imposing a sentence which adequately reflects the part which the law must play in upholding the protection of human life and in punishing those who take it.’”

50. The Crown (paragraph 23 written submissions MFI 1 on sentence) submits that the matter is above the “mid-range of seriousness for matters of this kind”. The Crown goes on to note the fact the conduct of the two offenders involved a street race, the speeds at which the vehicles travelled and that the vehicles were travelling over twice the sign posted speed limit. The speed of Byrne’s vehicle was at one point 143km/h and therefore slightly more than 90 km/h over the sign posted limit.

51. Further on the aspect of the objective seriousness the Crown in paragraph 29 of MFI 1 details the area or scene where the driving occurred. Those matters include that Coleman Street was commonly used a thoroughfare for local road users preferring to avoid the main highway, the location of schools, the location of two places of worship and the location of one public café where at the relevant time at least five persons were seated at tables on the footpath outside the café on Coleman Street.

52. Most of these were the factors that I would have included in my physical description had there been an agreement between the parties. However a careful perusal of the written and oral submissions by both counsel for the offenders indicates no disagreement or issue with those matters raised by the Crown. Those matters submitted by the Crown are relevant to take into account on the issue of the seriousness of the matter.

53. Ms Mendes for Cahill submits at paragraph 17 of her written submissions (MFI 2 on sentence) a number of factors relevant to an assessment of the objective gravity of the offence. The submissions include that the offence was not planned, the anticipated length of the journey was about 2 kilometres, two vehicles were involved in the race, the race was impromptu, the speed of the vehicles, the location including a built up suburban street, the risk to the persons in the car as well as persons in the vicinity, the race went over a distance of 550 metres, the race would have taken less than 30 seconds, no evidence of ignoring of warnings from the occupants to slow down, and the facts there were “no warnings in the sense of traffic lights, give way or stop signs during which the short burst of offending that could have availed the offenders a moment of composure and reconsideration of their conduct”.

54. Ms Mendes goes on to submit that the “offence is a serious instance of offending involving a high order of moral culpability but falls short of the worst category”.

55. Further, Ms Mendes submits - as does the Crown - that the moral culpability of Cahill is less than that of Byrne. Mr King on behalf of Byrne submits that the matter is essentially one of a joint criminal enterprise and that there really can be no differentiation between the moral culpability of the two offenders.

56. On this aspect Ms Mendes submits that (paragraph 12 MFI 2 on sentence), “generally the perpetrator responsible for the actual killing will be treated as having demonstrated greater objective criminality than that of an offender who is not physically responsible for the death”. The decision cited as authority for that proposition is R v Taufahema [2004] NSWCCA 833. Sully J said at [49]

“There is the additional consideration that Penisini was the person who actually fired the fatal shots which brought about Constable McEnallay’s death. It must follow, it seems to me as a matter of common sense, that Penisini’s objective criminality is significantly greater than the objective criminality of his three co-offenders, including the present prisoner.”

57. The factual situation in Taufahema is very much different to the matter presently under consideration. In this matter the two offenders deliberately embarked upon the street race. Ms Mendes put in oral submissions (p 11:21 ff):

“…And in my submission there is some appreciable difference between the moral culpability of the two offenders, in respect of what happens a very short period prior to the fatal impact. In my submission the offenders’ culpability is equal until Mr Byrne accelerates to a speed that’s almost a third in excess of that of Mr Cahill and Mr Cahill was clearly already driving double the speed limit and then conducts a manoeuvre which lands him on the incorrect side of the road, then correcting and the fatal occurs.

In relation to Mr King’s submission about who started the race and as I understand the submission being advanced on behalf of Mr Byrne there is a submission that your Honour would find as an objective fact when determining the moral culpability of each offender, that it was Mr Cahill that initiated or started the race. The facts, in my submission, establish that both offenders departed from those traffic lights when they turned green in a manner described in the facts as accelerating aggressively, at para 8.”

58. In respect of what is extracted above, the facts in respect of Cahill say that the speed of his vehicle “was not less than 100 km/h”. Byrne’s speed was not necessarily “almost a third in excess of that of Mr Cahill”.

59. A little later (p 12:05) Ms Mendes submits that there is no evidence that Mr Cahill initiated the race. The submission continues at pp. 12-13, “…What your Honour knows objectively is that they aggressively sped through the lights, and then at some stage not far down the road they’ve had an impact, there been this overtaking”.

60. Mr King at paragraph 12 of his written submissions (MFI 3 on sentence) submits:

“It is apparent that Cahill must have initially driven his car more quickly than the offender, as it was he who took the lead as they proceeded down Coleman Street after the lanes merged. In this sense it may be said that it was Cahill’s actions that initiated the race. Both vehicles then drove in a very fast manner down Coleman Street, obviously well in excess of the posted speed limit of 50 km/h”.

61. In oral submissions (p 20:19) Mr King submits that the matter is a serious example of vehicular manslaughter. He goes on to submit that every vehicular manslaughter is a serious matter. A little later as part of that same submission (p 20:26) Mr King put, “…and to adopt the Crown’s nomenclature, it is not an offence above the mid-range”.

62. Ms Mendes submits (paragraph 14 MFI 2 on sentence) that there are a number of factors that warrant a downward adjustment in the assessment of Mr Cahill’s culpability vis-à-vis that of Byrne, namely that it was Byrne who conducted the overtaking manoeuvre, Byrne reached a top speed of 143 km/h whereas Cahill’s speed is “no less than 100 km/h” and it was Byrne’s vehicle that struck the deceased’s vehicle.

61. The Crown (p 30:07) put that, “the Crown stands by the submission made that Mr Cahill’s moral culpability is lower. On the issue raised at paragraph 12 of Mr King’s submissions the following appears attributed to Mr King (p 30:42) but it was put by the Crown:

“Yes. So the Crown says at some point Mr Cahill was in front of Mr Byrne’s car. When that commenced is simply an unknown, whether he was always in front, or was not, whether they were side by side at some point or not, is simply an unknown. But at some point he was in front.”

64. The agreed facts in respect of both offenders have the offender Byrne conducting an overtaking manoeuvre. It follows from that that Cahill must have been in front at least at some stage. The facts and the other material do not enable me to find at what point or for how long Cahill was in front of Byrne. However, likewise I am not able to make a finding that somehow Cahill started the race. The facts indicate – or at least my understanding of the facts is that they indicate – that the decision to participate in the race was one made by both of them. From the facts it is clear that this was very much a “spur of the moment” decision. I note the Crown indicated that it was the Crown case that there was no prior planning (p 28:18).

65. Byrne was travelling at a speed of 143 km/h very shortly before the fatal impact. He conducted an overtaking manoeuvre. The agreed facts are that Cahill’s “top” speed during the incident would not have been less than 100 km/h. Given these factors the moral culpability of Byrne is slightly higher than that of Cahill. However there is real substance in Mr King’s submission (paragraph 26 MFI 3) that “Their recklessness was the action of engaging in the street race itself, not any individual components of the race”.

66. Mr King concedes in his written submissions (paragraph 14, MFI 3 on sentence) “the actions of the offenders were clearly highly dangerous and incredibly irresponsible and their actions led to the death of an innocent road user. It is conceded that this represents a serious example of vehicular manslaughter”. Mr King submits (p 23) that the court would find that there is no real difference between the moral culpability of the two offenders. There is another aspect to the issue relating to Byrne’s moral culpability, namely the diagnosis of Adult Attention Deficit Hyperactivity Disorder. I will deal with this in detail when dealing with the subjective cases for each of the offenders. The submission continued (p 23:25) that even if I did find that Byrne’s moral culpability was greater, the adult ADHD would effectively negate any practical impact on the sentence because of that finding.

67. Ms Mendes submits (paragraph 19 MFI 2 on sentence) that the offence falls below the mid-range for such offending.

68. The Crown submits that the offending is above mid-range (p 31:42), agreeing with a preliminary view I expressed at the sentence hearing that the matter is above mid-range.

69. All counsel made submissions in the context of the Guideline Judgment in R v Whyte (2002) 134 A Crim R 53. As I made clear at the sentence hearing given the conduct of the two offenders I have no difficulty whatsoever in concluding that the both of them abandoned responsibility. They abandoned responsibility when they commenced the race at the traffic lights.

70. Both offenders were young offenders. Cahill is of good character but Byrne has a record involving a number of offences that seem to arise out of the one incident. The record, given his age, can be seen in my opinion as a relatively limited record. I will deal with this issue later. There was death to a single person. The victim was a stranger to both of them. As the Crown submits any person on Coleman Street or in the near vicinity of where the driving was taking place was put at risk. The speed was vastly excessive. As they were racing both offenders were engaging in competitive driving. Each of the offenders had two passengers in their respective vehicles. One of the passengers was trapped for some time in Byrne’s vehicle. The length of the journey was several hundred metres. Disaster was all but inevitable. It would be only speculation to determine for how far the driving would have continued but for the impact. There is no issue of sleep deprivation, failing to stop or avoiding a police pursuit.

71. The Crown maintained in both written and oral submissions that the court should take into account ignoring of warnings by both offenders. The submission continued that this is made out because the speed limit of the area where the driving occurred was 50 km/h and given the speed at which they were travelling they ignored the warnings as set out on the signs limiting the speed to 50 km/h. Ignoring of warnings is generally directed towards warnings from other persons in the vehicle. In any event the speeds at which the offenders were travelling and the extent to which those speeds exceeded the sign posted speed limit are some of the more significant factors in determining the objective seriousness. To give further weight to the ignoring of warnings based on what the Crown submits would be to engage in double counting.

72. These two offenders deliberately embarked upon what was serious criminal conduct. That conduct was also particularly and inherently dangerous conduct in deciding to have that impromptu street race on a public street in suburban Wagga Wagga and then continuing that race reaching the speeds that they did. That criminal, deliberate and inherently dangerous conduct had the most tragic of consequences.

73. Taking into account the conduct in general and the speeds in particular, together with the other matters to which I have referred, in particular the area where the driving occurred, I am of the opinion that this matter is above the mid-range of seriousness for matters of this type, meaning matters of manslaughter.

Victim Impact Statements

74. At a short sentence hearing on 7 February 2020 the court received three victim impact statements that were read to the Court. One can only hope that the offenders were listening carefully as those statements were read to the court in order that they might have an understanding as to the devastating effects their conduct had on so many people. From the subjective material it seems as though they were listening.

75. The Victim Impact Statements were from Ms Kailah Fraser, a daughter of the victim (exhibit C on sentence); Ms Jaimee Smith, a daughter of the victim (exhibit D on sentence) and from the wife of the deceased, Ms Tania Smith (exhibit E on sentence). Both Ms Jaimee Smith and Ms Tania Smith came upon the scene of the impact.

76. Those statements speak very powerfully and eloquently in significant detail of the short and longer term effects the death of the late Mr Craig Smith had on his family. Craig Smith was a much loved husband and father and well regarded citizen who was going about his daily affairs when the criminal and highly dangerous conduct of these two offenders cut his life short.

77. The court extends its sincere condolences to the family and friends of the late Mr Craig Smith.

Criminal History

78. The offender Cahill was born on 28 June 1999 and has no matters recorded against him. He is entitled to be dealt with as a person of prior good character.

79. The offender Byrne was convicted on 22 September 2015 (when he was 17) at the Geelong Magistrates Court of a number of driving offences, which I presume from the entry on the record arise out of the one incident. Those offences include Driving in a Manner Dangerous to the Public, Fail to Give Name and Address – Property Damaged, Drive While Suspended and Use Unregistered Motor Vehicle and Fail to Answer Bail. He was convicted and fined an aggregate of $1000 and ordered to pay court costs. He was also disqualified for 12 months. The facts of the matter are provided and it appears that the driving involved a police pursuit, which is a serious matter.

80. I understood from paragraphs 41 and 42 of the Crown’s written submissions that that record aggravated the offending. The matters on Byrne’s record were when he was 17 years of age. Even if the record was such that it was an aggravating factor pursuant to s 21A(2)(d) of the Crimes (Sentencing Procedure) Act, which it is not, such a record can never aggravate the seriousness of the offending.

81. As Mr King observed in oral submissions (p 21:41) the decision in McNaughton is authority for the proposition that criminal history cannot aggravate the offending, i.e. make the offending more serious. Spigelman CJ (McClellan CJ at CL agreeing with additional comments, Grove J agreeing with additional comments and Barr and Bell JJ (as Bell J then was) also with additional comments said at [30]:

“Although I agree with Howie J's identification in Wickham of the relevant sentencing principle, I do not agree with his characterisation of s21A(2)(d). (See Berg supra at [40].) His Honour said that the section appears "on its face" to "indicate that a prior criminal record is a matter of aggravation by making the offence more serious". With respect, I do not agree that the section should be interpreted in that way. There is a distinction at common law between what Callinan J has called "a circumstance of aggravation" and a "matter adverse to an offender". (Weininger supra at [116].) However, Parliament has not used the word "aggravation" in its common law sense.”

82. The Crown submitted at the sentence hearing on 29 April 2020 (p 5:26) that Byrne’s record disentitled him to any leniency”. Given Byrne’s age the record has not, in my opinion reached that stage. It also needs to be looked in the context of where he was and his personal situation at the time the convictions arose. I will deal with that issue in slightly greater detail when dealing with the subjective material. However, he is certainly not entitled to the same degree of leniency because of his record that can be extended to the co-offender.

Need for General Deterrence

83. As the Crown submits (paragraph 49 MFI 1 on sentence) the appellate courts have said that youth is of limited assistance as a mitigating factor in serious driving offences. The policy behind this is, as was clearly stated in the decision of TG v R [2010] NSWCCA 28, that if young men are old enough to hold a driver’s licence they are expected to have the maturity to comply with the relevant rules. In TG v R Howie J (McClellan CJ at CL, Harrison J agreeing) said at [33]:

“Thirdly, evidence from a psychiatrist as to the immaturity of young males of the age of the applicant was irrelevant. If a young male is old enough to be licensed to drive a motor vehicle, he is to be assumed to be mature enough to comply with its conditions and the traffic rules. In SBF v R [2009] NSWCCA 231; 53 MVR 438 at 151 Johnson J stated:

‘Ms Francis referred in submissions to the Applicant "having little appreciation of his own mortality" (T5.35, 22 June 2009). The Applicant's counsel in the District Court had submitted that "it is also a fact of life that people at this tender age tend to - their brains tend to not allow them to deal with the responsibility that they sometimes demand so vocally" (T6.10, 5 August 2008). In a similar vein, the sentencing Judge in the Victorian County Court in Neethling at [51] had observed that the offender "like many young men ... saw [himself] as 'bullet proof'." The fact that young men (in particular) may have such perceptions is a significant reason for general deterrence to be a prominent factor in cases such as these. Inexperience and immaturity, in persons aged 17 years and over, cannot operate as mitigating factors where the offender commits grave driving offences, with fatal consequences, as exemplified by Neethling and this case.’

The reference to "Neethling" was a reference DPP v Neethling [2009] VSCA 116; (2009) 52 MVR 422”.

84. On the issue of general deterrence the Crown also appropriately refers to the decision of the Court of Criminal Appeal in WW v R [2012] NSWCCA 165. Hoeben CJ at CL (Johnson & Button JJ agreeing) said at [65]:

“The applicant accepted that when sentencing for driving offences, because of the tendency of young drivers to drive dangerously and thus the greater prevalence of driving offences committed by young persons, general deterrence might be regarded as a "prominent factor". He submitted, however, that his Honour erred in this case when he said that he regarded general deterrence as "a dominant factor". The applicant submitted that "prominent" was not the same as "dominant" and that his Honour erred in substantially subordinating considerations relating to his youth to the concept of general deterrence. The applicant submitted that his youth and the need to foster rehabilitation had to be given appropriate weight. In this case his Honour's finding was that the applicant had ‘good prospects of rehabilitation’.”

85. His Honour went on to say at [69]-[70]:

“The distinction sought to be made by the applicant between the words ‘dominant’ and ‘prominent’ is a matter of semantics, rather than principle. Whichever word is used, the effect of what his Honour did is clear, i.e. that in relation to this offence because of the prevalence of young offenders, general deterrence is to be regarded as more important than the need for rehabilitation. In R v Scott [1999] NSWCCA 233 Levine J (with whom Smart AJ agreed) referred to the importance of general deterrence in the following terms:

‘17 His Honour paid particular regard to the consideration which is of paramount importance in a case in respect of this offence, namely general deterrence. Offences under section 52A are public offences. Everyone has some idea of what they are about. Everyone is involved as a driver, passenger or pedestrian with what goes on on the highways and streets of this State. It is a very public crime. The public are entitled to have sentences imposed that make it perfectly clear that conduct of this kind in an environment in which so many of the public are involved in their daily affairs, will be appropriately punished.’

[70] Although this was a decision of the Court with a bench of two judges, there is nothing contrary to principle in that statement, which was applied and adopted by a three judge Court in R v AB [2011] NSWCCA 229 at [101].”

86. Johnson J in R v AB said also referring to the decision in at [101]-[102], also referring to the decision in R v Scott:

‘In R v Scott [1999] NSWCCA 233, Levine J (Carruthers AJ agreeing) said at [17]:

‘Offences under s52A are public offences. Everyone has some idea of what they are about. Everyone is involved as a driver, passenger or pedestrian with what goes on on the highways and streets of this State. It is a very public crime. The public are entitled to have sentences imposed that make it perfectly clear that conduct of this kind in an environment in which so many of the public are involved in their daily affairs, will be appropriately punished.’

[102] It is the unfortunate fact that offences under s.52A Crimes Act 1900 can cause death or serious injury to persons in the driver's vehicle, in other vehicles which happen to be in or near the street at the time, or to pedestrians unlucky enough to be in the area when the offence is committed. The lethal or potentially lethal consequences of s.52A offences mean that relatives or friends of an offender, or complete strangers, may be killed or injured through the course of driving which constitutes the offence.”

87. Although the Court in Scott and in R v AB was dealing with offending contrary to s 52A of the Crimes Act the statements made are equally applicable in the matter presently under consideration. Subject to an issue in relation to the offender Byrne (i.e. adult ADHD), with which I will deal in detail when reviewing the subjective material, the sentence in this matter must contain a substantial element of general deterrence. Drivers in general and young drivers in particular must understand that conduct such as that engaged in by these two offenders will be met with condign punishment.

Subjective Case – Cahill

88. No oral evidence was called from or on behalf of the offender Cahill. However a volume of written material, exhibit 1 on sentence, including a report from Dr Olav Neilssen was tendered. I will go first to Dr Neilssen’s report.

89. The offender gave Dr Neilssen an account of driving a 1998 model VT SS Commodore that was fitted with a five litre V8 motor. I observe that this is a high performance vehicle. The offender, who lived at Batlow, would drive to Wagga Wagga weekly to attend TAFE as part of his training as a mechanic. He knew the co-offender Byrne as another student. The offender told Dr Neilssen that there had been no planning of the race. That is accepted.

90. At p 3 of the report Dr Neilssen recounts that a year after the incident the offender’s general practitioner referred him to Dr Roger Blake, psychologist, for anxiety and depression. There is a separate report from Dr Blake. Given the offender’s predicament it is not surprising that he has anxiety. Dr Neilssen records at p 4 that when asked about the symptoms of psychosis the offender denied having typical hallucinations of voices or holding beliefs he recognised to be false. There was no history of episodes that were suggestive of bi-polar disorder. The offender is a social drinker and has never used illicit substances.

91. The offender is the youngest of three siblings. His siblings work, as do his parents. He attended primary and secondary school in Batlow. According to Dr Neilssen’s report the offender gave a history of his employer approaching him and offering him an apprenticeship. This is confirmed in a letter from Michael Daley of Batlow Mechanical Repair Service, which is part of Exhibit 1 on sentence. The offender elected to continue and complete Year 10 before commencing the apprenticeship. He completed some of the components of the technical training stream while still at school. He plans, or at least hopes to return to employment with Mr Daley upon his eventual release. He and his fiancé – from whom there is also an affidavit contained within exhibit 1 - had commenced work on renovating a house near the offender’s father’s property prior to him going into custody.

92. Dr Neilssen (p 6 report) diagnosed a depressive illness (adjustment disorder with depressed mood). Immediately, Dr Neilssen goes on to say, “The diagnosis of a depressive illness, described as an adjustment disorder, or a clinically significant response to an adverse life events, was made on the basis of the symptoms described by Mr Cahill, the observations made by his mother and aspects of his presentation during the recent interview”. The doctor goes on to say that the main cause of his depressive illness would appear to be the effect of his role in the accident and its aftermath.

93. A little later in the report Dr Neilssen says, “However, normal eighteen year old males are in the process of development that the executive controls requires to contain their impulses, especially in the presence of a group of peers”. This is no doubt the case. However, I have set out above under the heading ‘General Deterrence” some of the pronouncements of the superior courts on the issue of the immaturity of young men and driving offences.

94. Dr Neilssen opines (p 7) that the offender Cahill has a favourable prognosis and a low probability of further offences. The offender Cahill has no prior criminal history. He was employed and undertaking an apprenticeship. There is further subjective material to be considered but I accept the opinions expressed. That opinion is one matter that leads me to the conclusion that the offender Cahill is unlikely to re-offend.

95. As indicated above, Dr Blake has also provided a report. The family background is repeated in that report. Dr Blake sets out at pp 2-3 that adolescence and young adulthood is a period where individuals can be ruled by impulse and emotion over common sense. He sets out a number of matters, mostly risk-taking behaviour, that young people are more likely to do. The issue of immaturity and youth is of little assistance in this matter noting what I have already said about the authorities on that issue.

170. Bail was granted to Byrne by Button J on 12 December 2017 but he was not admitted to bail immediately and was in custody for 50 days or seven weeks and 1 day but has been on bail since. The court is left to calculate the number of days to which Byrne was subject to bail. On my calculations Byrne was on bail for 2 years, 7 weeks or 779 days.

171. The restrictions on the offenders were similar to those in Hoskins. However, these offenders were able to continue to live in their own homes, work and have time with their families. While the conditions of bail were strict they also allowed both offenders some degree of freedom of movement. The question is not whether the offenders were fortunate to have bail. Nor is it a question of whether there were “incursions on their liberty”. The question is whether the bail conditions imposed were so onerous and restrictive as to amount to quasi custody – see Hoskins at [38].

172. I admit to considerable vacillation on this issue. Ultimately however, the bail conditions were very similar to those in Hoskins where Grove AJ (as his Honour was then, he having been a Judge of Supreme Court for many years), a highly experienced judge allowed 25% of the time on bail by way of backdating. In the matter presently under consideration rather than a percentage I will allow 3 months for each offender. Byrne has been subject to strict bail for longer than the 533 days as submitted by Ms Mendes on behalf of Cahill. Byrne however lives in Wagga Wagga which is a much bigger centre than Batlow. Cahill surrendered himself at committal realising the inevitability of a lengthy custodial sentence. Byrne elected to remain on bail until the sentence hearing on 7 February 2020. I note what I have already said as to my opinion on the issue of quasi-custody. I am of the opinion that Byrne should get no credit by way of backdating because of bail conditions after the date of the committal for sentence. It is significant that it was a committal for sentence as opposed to a committal for trial. Being aware that a lengthy custodial sentence was inevitable he chose to remain on bail and be subject to those conditions. However, Byrne must also receive credit by of backdating for the 50 days (7 weeks, 1 day) he spent in actual custody before being admitted to the bail Button J granted. The backdating to be applied to Byrne’s sentence will be three months and 50 days.

Other cases

175. Mr King, with his usual thoroughness, has made available the Public Defender’s Table of like cases for Manslaughter where motor vehicles were involved. The cases go back to 1991 and no case after 2012 is included within the table. The only matter that involves a street race is the decision in Borkowski. The facts in that matter are more serious than the matter presently under consideration in that there were three vehicles involved in the race, the driving was for a much longer distance and two people were killed. There was also “some impairment of his driving skills from both intoxication by alcohol and drugs”- see Howie J at [10]. I have already observed that the facts in that matter are more serious than that presently under consideration.

176. In Borkowski Howie J (McClellan CJ at CL agreeing, Simpson J (as her Honour then was agreeing with additional comments relating to the decision of Pullman v R ) said at [65]-[66]:

“Each of the sentences imposed upon the respondent was itself manifestly inadequate. A sentence of 7 years with a non-parole period of 4 years for the offence of manslaughter relating to either one of the two victims reveals that the Judge's assessment of the criminality of the respondent must have fallen well short of what it should have been. The inadequacy of the sentences was compounded by an accumulation between the two sentences of only 2 years.

[66] The very least sentence that could have been imposed upon the respondent was, in my opinion, a total sentence of 12 years with a non-parole period of 9 years. Had I been the sentencing judge, I would have imposed a greater sentence. But it is the sentence that I would propose if the Crown appeal were allowed in recognition of the fact that this is a Crown appeal and the application of the principle of double jeopardy.”

177. It is to be noted that in the decision of Borkowski the Court of Criminal Appeal declined to intervene on discretionary grounds essentially on the basis that the Crown brought an appeal against the sentence imposed in respect of only one of the offenders. Howie J did not indicate what sentence he would have imposed. He indicated however that the discount for the plea should have been no more than 15%. It is tolerably plain for the last sentence in [65] of his Honour’s judgment that he was of the opinion that the level of accumulation should have been more than two years.

178. However Howie J did say at [59]:

“But however the manslaughter was described, it was an offence of the utmost seriousness because of the danger it posed to other persons in the vicinity, because of the flagrant breach of the road rules involved and because the loss of life was almost inevitable…”

179. As indicated above, the facts in the matter presently under consideration are not as serious as those in Borkowski. However, the comments made by Howie J extracted above apply to this matter. There was very considerable danger to other persons on or in the vicinity of Coleman Street at the time the driving was taking place including the passengers in the respective vehicles of the two offenders. There was also a flagrant breach of the road rules and loss of life was almost inevitable.

180. I also note what Howie J said in Borkowski at [58]:

“Of course the offence of manslaughter is notorious for the range of conduct falling within its scope and hence the width of the sentencing discretion when punishing for that offence. This is no doubt why there is no standard non-parole period prescribed for the offence. However, when sentencing for the offence, like all offences, the court must take into account the maximum penalty prescribed by the legislature. Further in cases of motor manslaughter, in my opinion, the sentence to be imposed must also take into account the fact that there is a structure of offences dealing with the occasioning of death through driving and that manslaughter stands at the very pinnacle of that structure as the most serious offence. In particular the sentence must take into account that there is a less serious offence of causing death by driving under s 52A(2) of the Crimes Act that carries a maximum penalty of imprisonment for 14 years. Of course it does not follow that the sentence for manslaughter must exceed the maximum for the less serious offence or that the sentence for manslaughter is in some way calculated using the maximum sentence for the other offence: Markarian at [31].”

181. In his written submissions Mr King analyses a number of other cases of motor manslaughter. However so far as I can determine it is only the matter of Borkowski that involves offenders deliberately embarking upon a street race.

182. In an endeavour to obtain some guidance and assistance as to the appropriate starting point of the sentence in this matter I also considered a number of decisions involving serious examples of offences of Dangerous Driving Occasioning Death. One of those is Lehn v R to which I referred when dealing with the issue of the discount for the pleas of guilty. I also considered the decision in Conte v R [2018] NSWCCA 209.

183. It is plain enough from a review of those decisions and moreover the decisions reviewed in the joint judgment of Payne JA and Button J in Conte v R at [12] noting that the appeals by the appellants in Lehn v R and Conte v R were successful (both by majority) that there has been an upward movement in the sentences imposed in respect of serious driving offences since the decision in Borkowski.

184. I also note that at [15] and [23] in Conte v R, Payne JA and Button J refer to the offender’s youth. Given the well-established line of authority as set out in the decisions of TG v R and WW v R, I interpret this as meaning that the young age of the offender is taken into account in the instinctive synthesis approach rather than something in mitigation in accordance with authorities such as Locke v R (2010) 207 A Crim R 34; [2010] NSWCCA 296.

185. I also note that in Conte v R Payne JA and Button J gave an indicative sentence of a head sentence of 9 years for a serious example of the aggravated form of the offence contrary to s 52A of the Crimes Act. The maximum penalty was 14 years and there was no discount for a plea as the matter went to trial. Their Honours also said at [22]-[23]:

“Ultimately, the test to be applied when considering whether a sentence is manifestly excessive or manifestly inadequate is whether the sentencing outcome is simply and unaccountably too severe or too lenient, having regard to all relevant objective and subjective features in each case.

Applying that practical test to this outcome, we respectfully cannot accept that this aggregate sentence is appropriately reflective of the applicant’s youth, his deprived upbringing, the fact that all offences arise from one incident, and the fact that the maximum penalty for aggravated dangerous driving causing death is imprisonment for 14 years, as opposed to the maximum penalty for manslaughter of imprisonment for 25 years.”

186. This is yet another practical example of the statement of principle on the significance of the maximum penalty prescribed by Parliament in respect of an offence by the plurality in Makarian v The Queen. In the matter presently under consideration for the reasons I have given I have determined that this matter is above mid-range for vehicular manslaughter.

General Remarks

187. In passing sentence I will need to give proper effect and regard to sections 3A and 5 of the Crimes (Sentencing Procedure) Act. Section 3A sets out the purposes of punishment, namely:

1. to ensure that the offender is adequately punished for the offence,

2. to prevent crime by deterring the offender and other persons from committing similar offences,

3. to protect the community from the offender,

4. to promote the rehabilitation of the offender,

5. to make the offender accountable for his or her actions,

6. to denounce the conduct of the offender, and

7. to recognise the harm done to the victim of the crime and the community.

188. Section 5 of the Crimes (Sentencing Procedure) Act provides in effect that a court should not impose a sentence of imprisonment unless having considered all possible alternatives no other sentence is appropriate. Given the maximum penalty of 25 years, the offending and the need for general deterrence clearly a sentence of imprisonment is the only appropriate sentence. Likewise, given the offending and what will be the length of the sentence the sentence for both offenders must involve a substantial sentence of full time custody. I did not understand counsel for either of the offenders to submit otherwise.

189. Both offenders are entitled to a finding of special circumstances. The factors that entitle them to that finding are their ages, the fact that this is the first time in custody and that they will both require an extended period of supervision to ensure their proper and appropriate reintegration into the community. With the offender Byrne there is the additional factor of ensuring that he receives the appropriate treatment for his ADHD and counselling in respect of alcohol and substances.

190. Counsel for both offenders at the sentence hearing, as they are professionally obliged to do, set out and emphasised the factors in favour of their respective clients. Cahill is slightly less morally culpable and has a slightly stronger subjective case including a clear record. Byrne is slightly more morally culpable and has the record of driving matters. However he also has the issue of the adult ADHD which I have dealt with at some length. This offending is very much a matter of a joint criminal enterprise. As I said earlier in these reasons both offenders abandoned responsibility when they applied the accelerator of their respective vehicles at the traffic lights at the intersection. After a very great deal of consideration I have come to the determination that the various competing issues and factors for each of them lead to the conclusion that the same sentence should be imposed in respect of both of them.

191. Again, after a great deal of consideration I have determined that the appropriate starting point in respect of both offenders is 14 years imprisonment from which is deducted the 25% for the utilitarian value of the pleas resulting in a total sentence of 10 years and 6 months. For reasons already enunciated both offenders are entitled to a finding of special circumstances.

Orders

192. Mathew Thomas Cahill in respect of the offence that:

“(You) on 23 October 2017 at Turvey Park in the State of New South Wales did unlawfully kill Craig Ian Smith”, contrary to s 18(1)(b) of the Crimes Act, 1900.

You are convicted.

193. I sentence you to a non-parole period of 7 years to date from 4 June 2019 and which will expire on 3 June 2026.

194. Thereafter there will be a period on parole of 3 years 6 months to date from 4 June 2026 and which will expire on 3 December 2029.

195. You will be eligible for release to parole at the expiration of the non-parole period and I recommend that release.

196. The non-parole period is two thirds of the total sentence. The sentence indicates a finding of special circumstances, the reasons for which have been enunciated within these reasons.

197. You are disqualified from driving for the automatic period of 3 years. Section 206B of the Road Transport Act, 2013 applies and any period of suspension should be taken into account.

198. Joshua Aaron Byrne in respect of the offence that:

“(You) on 23 October 2017 at Turvey Park in the State of New South Wales did unlawfully kill Craig Ian Smith”, contrary to s 18(1)(b) of the Crimes Act.

You are convicted.

199. I sentence you to a non-parole period of 7 years to date from 18 September 2019 and which will expire on 17 September 2026.

200. Thereafter there will be a period on parole of 3 years and 6 months which will date from 18 September 2026 and which will expire on 17 March 2030.

201. You will be eligible for release to parole at the expiration of the non-parole period and I recommend that release.

202. The non-parole period is two thirds of the total sentence, which indicates a finding of special circumstances, the reasons for which have been enunciated within these reasons.

203. You are disqualified from driving for the automatic period of three years. Section 206B of the Road Transport Act, 2013 applies and any period of suspension should be taken into account.

204. In respect of the offender Cahill I direct that a copy of the report from Dr Neilssen, which is part of exhibit 1 be annexed to the warrant that is forwarded to the Department of Corrective Services.

205. In respect of the offender Byrne I direct that a copy of the report of Dr Dayalan, which is part of exhibit 2 be annexed to the warrant that is forwarded to the Department of Corrective Services.

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Amendments

26 May 2020 - Para 197 and 203 amended to include reference to s206B.