R v Cook

[2022] NSWDC 157

District Court

New South Wales

Medium Neutral Citation:

R v Cook [2022] NSWDC 157

Hearing dates:

26 April 2022

Date of orders:

13 May 2022

Decision date:

13 May 2022

Jurisdiction:

Criminal

Before:

Priestley SC, DCJ

Decision:

1 - The offender is convicted of each of the 7 charges set out in the above table.

2 - Taking into account the objective seriousness of each of the matters and the subjective matters detailed above, and taking into account the various Form 1 matters in relation to the particular offences to which they relate, and applying the 25% discount for the early plea of guilty, the offender is sentenced to an aggregate term of imprisonment of 14 years, to date from 1 November 2019, and with a non parole period of 9 years, to date from 1 November 2019 and expiring on 31 October 2028.

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999
Drugs Misuse and Trafficking Act 
Crimes (High Risk Offenders) Act 2006 (NSW)

Cases Cited:

Muldrock (2011) 244 CLR 120

R v McLaren [2012] NSWCCA 284

Moananu [2022] NSWCCA 85

Bugmy (2013) 249 CLR 571

Millwood v R [2012] NSWCCA 2

De la Rosa [2010] NSWCCA 194

Nguyen[2005] NSWSC 600

R v Mohamad Ali [2005] NSWSC 334

R v Walsh [2004] NSWSC 111; (2004) 142 A Crim R 140

Smith v R [2020] NSWCCA 181

Woodbridge v R [2010] NSWCCA 185

Duncan v R [2012] NSWCCA 78

Crowley v R [2021] NSWCCA 45

Hall v R [2021] NSWCCA 220

R v Holder [1983] 3 NSWLR 245

Mill v The Queen [1988] HCA 70

Cahyadi v R [2007] NSWCCA 1

Category:

Sentence

Parties:

Regina (Crown)
Cook (Offender)

Representation:

Swift Crown Prosecutor
Krisenthal Counsel for the Offender

File Number(s):

2019/00206586

Publication restriction:

Unrestricted

Introduction: the offences, form 1 matters, maximum terms and standard non-parole periods

The facts

Objective seriousness of manslaughter and grievous bodily harm offences

Form 1 matters relating to manslaughter and grievous bodily harm

Drug offences

Aggravated break, enter and commit a serious indictable offence (larceny)

Firearm offences

Victim impact statements

Criminal history

The offender’s subjective case.

Sentencing considerations

Table of Indicative sentences

Totality

Determination of sentence

Orders

Introduction: the offences, form 1 matters, maximum terms and standard non parole periods

1. The offender, James Cook, appears for sentence in respect of 7 offences with a further 6 offences to be dealt with by way of the Form 1 procedure. The written submissions of the offender helpfully set out in a table each charge, its maximum penalty, whether or not there was a standard non-parole period and if so of what length, and the Form 1 matter attaching to the particular principal charge. That table is gratefully adopted and there has been added to it the date of the principal offences and Form 1 matters.

Charge	Date	Max Pen	SNPP	Form 1	Date
Manslaughter Daniel Elliott	9.12.18	25	No	52AB(1); fail to stop and render assistance	9.12.18
Manslaughter Jared Ward	9.12.18	25	No	52AB(1); fail to stop and render assistance	9.12.18
GBH Renee Fox	9.12.18	10	4 years	52AB(2); fail to stop and render assistance	9.12.18
Supply 72.25 meth	18.3.19 - 30.6.19	15	No	s25(1) DMTA x 2; 112 g and 9g methylamphetamine	22.6.19 & 3.7.19
Agg BES	14.6.19	20	5 years	No
Poss firearm	3.7.19	14	No	s65(3) Poss ammunition	3.7.19
Poss loaded firearm in public place	3.7.19	10	no

2. In regards to the Form 1 procedure it is important that the focus remains on the principal offences for which the offender is being sentenced. The procedure allows that in doing this greater weight may be given to the elements of personal deterrence and the community’s entitlement to extract retribution for serious offences. Those two elements are entitled to greater weight than they may otherwise be given when sentencing for the primary offence; see attorney General’s Application under s37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146 per Spigelman CJ.

3. Two of the principal offences have standard non-parole periods. They are the offence of recklessly causing grievous bodily harm which has a standard non-parole period of four years and the offence of aggravated break and enter and steal which has a standard non-parole period of five years.

4. The maximum sentences, and additionally in respect of the two offences just mentioned, the standard non-parole periods, are taken into account as legislative guideposts to assist in arriving at the appropriate sentence. In relation to the standard non-parole periods I note that in Muldrock (2011) 244 CLR 120 at [29] the High Court made clear that it has application even when the offending is not considered to be in the middle of the range of seriousness as that term is used in section 54A of the Crimes (Sentencing Procedure) Act (“CSPA”). The standard non-parole period, as with the maximum sentence, is an indication of the legislative view of the seriousness of the offence.

5. In assessing objective seriousness for the purpose of section 54B(2) the matter is determined wholly by reference to the nature of the offending. In assessing moral culpability for overall sentencing purposes, also sometimes referred to as objective seriousness, matters personal to the offender can be taken into consideration such as for example mental health. See in this regard the decision of McCallum J in R v McLaren [2012] NSWCCA 284 at [29].

The facts

6. The following statement of the facts is taken from the agreed sentence facts found in exhibit A. The victims of the two manslaughter offences were Daniel Elliott and Jared Ward. The offender and Mr Ward had grown up together and were good friends. In 2014 Mr Ward seriously assaulted a member of the offender’s family. The offender provided a statement to the police about that assault. Mr Ward was convicted and sentenced to 2 years imprisonment. Mr Ward was released from prison in July 2015 and held a grudge against the offender for the role Mr Ward perceived the offender played in his conviction. In the latter half of 2018 Mr Ward, as part of a planned revenge against the offender led the offender to believe that he no longer held any grudge against him. In December 2018 Mr Ward conspired with the other victim, Mr Elliott to arrange a drug transaction with the offender with the intent of defrauding him. The plan was to arrange a meeting at an isolated location with the offender under the impression he would be purchasing 2 ounces of the drug ice from Mr Elliott for approximately $7000. The intention was to steal the $7000 and provide no drugs.

7. The manslaughter and reckless grievous bodily harm offences occurred on 9 December 2018. On that day there was communication between Mr Ward and Mr Elliott in relation to the plan to “rip off” the offender. There was also communication between the offender and Mr Ward setting up the meeting. The plan involved Mr Ward being picked up by the offender and then going to the designated location at Halfway Creek where they were to meet the other party which was Mr Elliott. The offender used a blue Holden Commodore borrowed from a neighbour and drove with Mr Ward at about 6 PM to Halfway Creek.

8. Prior to this Mr Elliott prepared a bag of rice to be fake methamphetamine. He did this at the home of Ms Fox, who was a friend of both Mr Ward and Mr Elliott. Ms Fox was aware of the plan and borrowed a friend’s car, a silver Mitsubishi Lancer to travel with Mr Elliott to Halfway Creek.

9. Shortly after 7 PM the offender and Mr Ward arrived at the agreed location near an abandoned rose farm. The car was parked in a cul-de-sac facing the exit. When Mr Elliott and Ms Fox arrived they parked next to the car facing the same exit. Mr Elliott and the offender got out of their respective cars and met at the back of the Lancer. It is unclear what happened next however the offender stated that Mr Elliott physically overpowered him and “choked him out”, leaving him on the ground and unconscious for a few seconds. Mr Elliott took the offender's money and returned to the front seat of the Lancer. The offender regained his feet and walked between the cars at which time the Lancer drove off at very high speed. The offender immediately got into the Commodore and chased after the Lancer. Both cars came out of the side road onto the Pacific Highway heading north.

10. It is from the conduct of the offender in chasing after the Lancer in the Commodore that the two manslaughter charges and the grievous bodily harm charge arise. The driving of the Commodore is agreed by the offender to have been intimidatory and predatory driving so as to constitute an unlawful and dangerous act. The Lancer was recorded by a speed sign as travelling over 140 km/h. Crash investigator analysis estimated both vehicles travelled at 144 km/h 610 m after entering the Pacific Highway. A truck driver, Mr Bates, was driving north and observed the Lancer pass him in the right-hand lane and the Commodore tailgating the Lancer. As soon as the Commodore passed Mr Bates it moved into the left lane beside the Lancer. The Commodore moved to the right closer to the Lancer. The Lancer moved its right side wheels over the right fog line. Mr Bates described the Commodore as being given a good few shakes of the wheel to move back and forth, which I take to mean left to right, so away from and then back closer towards the Lancer. When the Lancer was over the fog line the Commodore continued into the right-hand lane and was very close to the Lancer. At one point the Lancer hit the brakes and so too did the Commodore with the Lancer then accelerating away as did the Commodore. There was then a U-turn by the Lancer and the Commodore did the same so that the cars were now travelling south along the Pacific Highway. The Lancer was travelling in the right-hand lane. The Commodore continued its pursuit. The offender misjudged how close the Lancer was to the Commodore and the front right panel of the Commodore unintentionally came into contact with the rear left panel of the Lancer. This caused Mr Elliott to lose control of the Lancer and to enter an anticlockwise rotation, so that the Lancer left the roadway on the left-hand side and rolled over. Later calculations of the speed of the Lancer at the point of impact were of between 102 and 112 km/h. The Lancer came to rest having rolled down an embankment on its roof. The roof was crushed in.

11. Mr Elliott was initially responsive to 000 calls but became unresponsive and was dead when paramedics arrived. So too was Mr Ward. The direct cause of death for Mr Elliott was neck injuries suffering a C4 vertebral fracture which likely lead to spinal shock and rapid cardiac arrest. The direct cause of death of Mr Ward were multiple injuries to the head, neck, thorax and upper limbs as well as injuries to his pelvis and lower limbs. His death was likely instantaneous.

12. Ms Fox was flown to Gold Coast hospital and received treatment for compression fractures to 3 vertebrae requiring surgery, massive subgaleal haematoma, a fractured rib and small glass fragments in her left index finger.

13. After the Lancer crashed the offender stopped and went back to the accident scene. He left the scene as a passerby vehicle pulled up to render assistance. The driver extinguished a small fire. The offender rendered no assistance and did not call 000. When the Lancer was examined at the scene no money was found. The Crown contested that this was because that was the reason the offender had returned to the scene and that the offender indeed took the money and then left. No argument to the contrary was put by the offender. For a finding adverse to the offender to be made in this regard I need to be satisfied beyond reasonable doubt. In the circumstances where Mr Elliott took the money into the Lancer I conclude that it was certainly in the Lancer at the time of the accident. In circumstances where the money was not found at the scene despite the examination being carried out I conclude beyond reasonable doubt that that was because the money was indeed taken by the offender when he returned to the scene. I find the offender returned to the scene to recover the money, not to render assistance.

14. The offender then returned home. His partner observed that he was acting strangely and he told of some of what had happened. His partner saw on news reports that Mr Elliott and Mr Ward had died in the crash. When the offender found this out his partner observed him to be crying, shaking and that “he went into shock”.

15. The offender participated voluntarily in two interviews with police on 18 December 2018 and 3 July 2019. On both occasions he gave exculpated reversions suggesting it was the Lancer that was responsible for the aggressive driving. The offender was arrested on 3 July 2019 and has remained in custody since that date.

Objective seriousness of manslaughter and grievous bodily harm offences

16. It was accepted by the parties that the offending conduct occurred over a period of only 2 to 3 minutes of driving. For the offender it was said that this was a relatively brief period supporting a lesser rather than greater assessment of objective seriousness. The offender also contended that there was no planning and that the conduct was responsive to the circumstances. Further the offending was on a highway and not in a heavily built up area where such conduct involving cars is inherently more dangerous. Examples were given of much worse cases involving alcohol and police pursuit.

17. Both parties made arguments based on the circumstances leading up to the offending conduct. For the offender it was said that the genesis of the offences lies with the decision of the victims to lure the offender to a remote location and rob him. A contrast is drawn between this considered action and the unplanned and reactionary behaviour of the offender.

18. In contrast the Crown asserts the incident occurred in the context of unlawful activity namely the attempt to source illegal drugs.

19. In my view the assessment of objective seriousness needs to be based predominantly on the actual conduct constituting the offence. If the offender conducted himself as he did because the Lancer had perhaps slightly touched his car when departing the cul-de-sac in circumstances where the parties were unknown to each other then in my view his offending is no less or more serious. That is, that the offender had been “ripped off” does not in my view lessen the seriousness of the manslaughter offences and grievous bodily harm offence. Similarly in answer to the Crown’s argument, the offending conduct is not made more serious because the offender was engaged in some earlier criminal activity. In whatever circumstances that preceded the offending it was the conscious and deliberate choice of the offender to behave as he did. The position might be different if the prelude to the offending was different; for example if the pursuit was with an objective of protecting a person, but that is hypothetical. Dealing with the present facts the view I take is that the illegal activity preceding the driving conduct neither assists nor hurts the offender so far as the assessment of objective seriousness is concerned. It may be that conduct is relevant for other reasons on sentence such as a factor when considering prospects or considering the likelihood of reoffending.

20. A major point for the Crown was to say that the offender had weaponised his motor vehicle. His car, it was argued, was used as a weapon to intimidate others and to force others off the road.

21. I accept the submission of the Crown that whilst the offending conduct was reactionary to what had occurred the cul-de-sac they were far from momentary.

22. The manner of driving was very dangerous. This is perhaps highlighted by the failure of the offender to veer away from the Lancer once the Lancer’s right side had passed the fog line. Whilst I consider the use of the term “weaponised” to be somewhat dramatic it is certainly the case that the Commodore was being used by the offender in an intimidatory and predatory way with a very clear and very obvious great risk of accident and death and serious injury.

23. I accept the offender’s submission that the offending occurred on a highway and not a built-up area and that there is no evidence of intoxication on the part of the offender. I note a reference to the offender suffering withdrawal from “ice” at the time of the offence, but there was no evidence of the consequence of this.

24. The deaths of the two victims is a necessary element of the offence of manslaughter, just as is the serious injuries suffered by Ms Fox. The deaths themselves do not add to the inherent seriousness of the manslaughter offences. On the other hand, the evidence is not detailed as to the injuries and sequelae affecting Ms Fox. Necessarily as an element of the offence Ms Fox is seriously injured. The injuries here included compressed fractures of three vertebrae, requiring surgery. Ms Fox attended the sentence hearing. There was no suggestion of paraplegia to any extent in the evidence. In the perspective of “grievous bodily harm”, the injuries she suffered, whilst clearly significant and serious, support a finding of objective seriousness of that offence less than what is contended for by the Crown.

25. The offender drew the Court’s attention to the recent case of Moananu [2022] NSWCCA 85. That case gives a number of “comparable” cases of this type. The facts of those cases illustrate the great range of factual circumstances in which this type of offending may occur. The case refers to occasions of offenders driving whilst grossly intoxicated, of driving on the wrong side of the road, of driving for a greater period of time and a greater distance than the offender did here, and of being in busy built up areas, and at much higher speeds than here.

26. In the present case, whilst a speed of 144 km/h was reached, the speed at the time of going off the road was in line with the likely speed limit on a highway. There was other traffic but it was heavy and it was not a built up area. There is no evidence of intoxication. The factor in this case that heightens the seriousness of the conduct is the element of pursuit by the offender of the Lancer, in a manner where he was so close to the Lancer that whilst not intentional, the ultimate touching of the vehicles was highly likely. The continuation of this conduct after the Lancer crossed the fog line, when heading both north and south, adds to the seriousness of the matter.

27. It is of course necessary to consider each offence separately. The view or assessment of the manner of driving in each case is necessarily the same. The factor distinguishing the manslaughter charges and the grievous bodily harm charge in terms of objective seriousness is the relevance of the extent of the injuries suffered by Ms Fox.

28. The conclusions I reach as to the objective seriousness of these matters are that both the manslaughter offences are in the mid range of objective seriousness, and so too is the reckless grievous bodily harm offence, though in light of the injuries suffered, I assess that offence as being slightly less serious than the manslaughter offences, and below the midpoint of seriousness referred to in section 54A.

Form 1 matters relating to manslaughter and grievous bodily harm

29. In respect of both of the manslaughter charges and the grievous bodily harm charge there is a Form 1 matter to take into account which in each case is of failing to stop and render assistance. The charges are under section 52AB(1) in respect of the manslaughter charges and section 52AB(2) in respect of the grievous bodily harm charge. The more serious charge relates to the manslaughter charges as it carries a maximum penalty of 10 years imprisonment by reason of the accident involving a death. The maximum penalty under subsection 2 relating to an impact occasioning grievous bodily harm is 7 years.

29. I have set out the facts relating to these matters above. The conduct of the offender in this regard can only be described as callous, self-interested, and showing no concern or respect whatsoever for the lives and well-being of the three victims. Rather the concern of the offender was to reclaim the $7000. The sentence for the primary offence in each case will reflect additional weight as to personal deterrence and retribution than may otherwise have been the case, without exceeding the sentence appropriate for the objective gravity of the offence.

Drug offences

31. The next primary offence is under section 25 (1) of the Drugs Misuse and Trafficking Act of supplying 72.25 g of methylamphetamine. The maximum penalty is 15 years imprisonment. The charge is referred to as a “rolled up offence” in that the quantity of 72.25 g is the total amount of methylamphetamine supplied by the offender in the course of affecting a total of 53 separate transactions to 21 different people. The supplies occurred between 18 March 2019 and 30 June 2019. The offending was uncovered by investigations carried out by a police strike force which involved lawful monitoring of telephone conversations and messages. The facts set out in some detail these communications. It is not necessary to recount them in similar detail. The facts set out the circumstances of supplies 1 to 38. Supplies 39 to 53 are described as simply being 15 occasions of supply for a total of 21.75 g.

32. In respect of 38 supplies detailed by the facts, the amount supplied ranged from .3 of a gram to 4.6 g. 33 of the transactions were for 1.75 grams or less. Thus of those 38 occasions of supply, on only five occasions was there a supply beyond 1.75 g. Given that in the remaining 15 occasions 21.75 g was supplied it would seem likely that those 15 supplies were of similar quantities of 1.75 g or less.

33. The quantities being supplied and the manner of communications which were largely by text on an ad hoc basis bear out the statement in the agreed facts that the offender was a user dealer. He is plainly well imbued in the business of drug supply. The conversations recounted at paragraphs 14 and 19 demonstrate the depth of the offender’s involvement and his connections to those further up the chain albeit that they show him to be to a very great extent a subordinate to those people, to the point of being in fear of them.

34. The charge is under section 25 (1). The rolled up amount of 72.25 g is well in excess of the indictable quantity of 5 g but by an even greater margin less than the commercial quantity of 250 g. As is well recognised the quantity of the drug is not the sole or even major determinant in these matters.

35. I accept the submission for the offender that the facts bear out that his role is only marginally above that of a street level dealer. The quantities involved most commonly support street dealing, with the larger quantities indicating that the offender’s role is not able to be classified as simply a street level dealer.

36. In terms of objective seriousness I would assess this in the low mid range. This is due to the apparent degree of involvement in the illegal activity borne out by the multitude of supplies over a three month period.

37. There are two Form 1 matters to take into account with the supply prohibited drug charge. Both are further charges under section 25 (1), and again both are in respect of the supply of methylamphetamine, in one case 112 g and in the other 9.6 g. Those offences occurred on 22 June 2019 and 3 July 2019. The first of these offences was detected again due to the police investigation. The offender was called in by Gregory Reiley to assist in organising the supply of the 112 g of methylamphetamine. The buyer of the drug was dissatisfied with the amount and contacted the offender to express his displeasure that the amount was less than agreed, and made threats to the offender if more was not supplied. This amount of 112g is far in excess of any of the individual amounts the subject of the principal charge, and significantly more than the rolled up amount. Whilst the offender is not the primary actor in this supply it demonstrates a degree of involvement consistent with the above findings of the role of the offender in drug supply being more than simply a street dealer. Based on the brief facts provided it also provides an example where the quantity involved although greater than the earlier amounts would see the matter being assessed as less objectively serious than the primary offence. It will nevertheless result in a greater weighting being given to personal deterrence and retribution.

38. The second Form 1 matter must also be taken into account, but impacts the sentence to a lesser extent. That is because the 9.6 g of methylamphetamine was found by police carrying out a search of the offender’s bedroom after his arrest. It is accepted this quantity was possessed partly for supply and partly for his own use. That is something entirely consistent with a street dealer and does not add a great deal to any weighting for deterrence or retribution.

Aggravated break, enter and commit serious indictable offence (larceny)

39. On 14 June 2019 between 12.30am and 2.30am the offender and a Mr Godwin cut a hole in a wire perimeter fence of a location in Schwinghammer Street South Grafton. Three days before the offender had noticed deliveries being made to that location of certain materials including telephone cabling. He was told somebody would “still take that” which I take to mean buy. Following that the offender had discussions with others about the logistics of breaking and entering into the location and removing goods from the property..

40. Having cut through the perimeter fence the offender and Mr Godwin then cut padlocks on two storage containers and took various construction tools and equipment including two large rolls of copper wire. The items were placed in the car of either a Mr Healy or the offender’s car and then left the scene. The total value of the stolen items was some $66,000.

41. Following the offence the offender made arrangements to relocate the copper wire pending a sale. This involved storing the wire at the home of a Mr Pategna, who that same morning was arrested on unrelated matters causing the offender to be concerned of the copper being found by police. That night the offender with Mr Healy relocated the wire.

42. On the morning of the offence employees noticed the cut padlocks and empty storage sheds. The matter was reported to police who attended. On 3 July 2019 the offender was arrested on an unrelated matter and found with some property from this theft in his vehicle. A subsequent search of his premises found more of the property taken on 14 June.

43. The offender submitted that the objective seriousness of this offence fell well below the mid range and was towards the bottom of the low range. The Crown submits that this underestimates the seriousness of the offending. The Crown says it was a break and enter and larceny from a commercial premises of a serious nature, involving some planning, the identification of the site and the arranging of transport for the bulky items. There is some merit in all of these points.

44. This is not a case where other people present at the time of the offence. There was obviously some planning but it was far from sophisticated and was to some extent opportunistic with the goods being placed on the site just happening to have been noticed only three days earlier. The lack of sophistication is perhaps highlighted also by the aftermath of not having a safe place to store the goods so that ultimately some were discovered at the premises of and in the car of the offender.

45. It is significant that some 60 different items were stolen. The rolls of wire were 100 m in length. One of the items was a battery press valued at $15,000 and another 2 items were insulation testers valued at a total of $20,000. I take into account the submission for the offender, which I accept, that the matter of aggravation of being in company could be described as the least aggravating factor under section 105A and also that the serious indictable offence of larceny carries the minimum penalty of five years required to fit that definition. Taking these objective matters into account I would assess this as being at the high-end of the low range of objective seriousness. There are no form one matters to be taken into account with this offence.

Firearm offences

46. The firearms offences arise from the searches carried out upon the arrest of the offender on 3 July 2019. The shortened firearm was found at 105 Armidale Road inside a locked metal cabinet found within a trailer belonging to the offender and containing his property. The firearm was a CBC brand .410 shot gun with shortened barrel and woodstock. Also found in the breech of the shotgun was a live .410 cartridge which constitutes the Form 1 matter of possessing ammunition. That is an offence under section 65(3) which prohibits possessing ammunition unless the relevant license or permit is held. I note the maximum penalty is a fine only of 50 penalty units.

47. The second firearms charge was possessing a loaded firearm in a public place. That firearm was home-made and found inside the dashboard of the offender’s vehicle upon the search on 3 July 2019. As police were rendering the firearm safe a live .22 cartridge fell from inside the gun barrel and onto the ground.

48. In respect of the firearms charges the Crown made a submission that it was of great concern given the other criminal activity of the offender. That with respect is a common sense submission to make. The difficulty is however that whilst on one view it may seem blindingly obvious that these firearms were tools of the offender’s criminal trade the charges relate specifically to 3 July 2019 and the only offending that occurred on that occasion was the supply of some 9 g of methylamphetamine. For that reason I would assess both of these offences as being below the mid range of offending and in the low range. In respect of the home-made firearm I would assess that as more serious (but still below the mid range, so in the high low range) given the efforts to construct such a dangerous item and keeping it loaded. It was also more readily available to the offender given its location.

Victim impact statements

49. The Crown relies upon seven victim impact statements. These statements were of the mother and father of Mr Elliott, Mr Elliott’s sister, the mother of Mr Ward and the sister of Mr Ward and her husband. There was also a victim impact statement of Ms Fox.

50. Those statements were read out in court. They were very moving. They serve to demonstrate just how important each individual person is to their family and loved ones. It is due to the criminal conduct of the offender that each of these people is deprived of their ongoing clearly close and loving relationships with the deceased, and in the case of Mr Brahm, the potential of such a relationship. The harm done by the offender extends well beyond the immediate deaths and injuries he caused. I have taken those statements into consideration in accordance with section 30E.

Criminal history

51. The offender was born on 17 July 1984 and first offended in 2003 at the age of 19 on a charge of driving recklessly/furiously or in a speed/manner dangerous and was fined. There was also a negligent drive charge in 2003. There were further driving offences in 2006 and 2007 and again in 2009. In 2008 he was convicted of assault occasioning actual bodily harm. In 2010 and 2011 there were matters of offensive behaviour and resist police. In 2013 there were a further 2 drive disqualified matters. In 2014 there was possession of a prohibited drug and of a knife. There are a number of possess prohibited drug matters and a contravention of an apprehended violence order. In 2014 there were also a number of property offences. In 2015 there was a series of dishonesty offences for which he received an intensive correction order. He did not offend in the course of that ICO. In 2017 he was charged with firearms offences and received a suspended 12 month sentence to date from 8 January 2018. He was called up on some of those matters and received an ICO. That ICO was to run from 19 February 2019 to 18 February 2020. In other words he was on conditional liberty by way of a suspended sentence at the time of the manslaughter and reckless grievous bodily harm offences, and on an ICO at the time of all of the other offences. In March 2019 there was the offence of driving with an illicit drug present in his blood.

52. This record plainly disentitles the offender to any leniency based on his record. Further, that all the offending occurred whilst the offender was on conditional liberty is an aggravating factor that will be taken into account. That said the offender’s record up to the age of 34, his age at the time of the manslaughter and grievous bodily harm offences, shows offending of far lesser seriousness than what is now being considered. The offending being sentenced represents a very significant escalation in his criminal lifestyle.

The offender’s subjective case.

53. It is agreed that the offender entered his plea at a time that entitles him to a 25% discount pursuant to section 25D of the Crimes (Sentencing Procedure) Act.

54. The offender relied upon a report of psychologist Luke Brabant dated 29 July 2021. He also relied on a letter prepared by the offender and signed on 11 April 2022. In addition there were four certificates achieved by him whilst in custody. A letter of his sister dated 21 April 2022 was relied upon as was a letter from a Dr Cooper in respect of the health of the offender’s mother. There were two letters received by the offender in custody which were abusive of him also in evidence.

55. The psychologist's report sets out the offender’s history. That history is largely his own account. That has not been tested under cross-examination. Nor was the letter written to the court by the offender tested under cross-examination. The Crown however took no issue with the offender’s history nor with his letter, other than to doubt the sincerity of the remorse expressed in the letter given its timing. The history given by the offender is of moving residence frequently from the age of 7 due he says to his parents growing and supplying cannabis. This affected his education and social development. The offender witnessed antisocial behaviour said to be violence and substance abuse and criminal activity behaviours which became normalised. His basic needs were met but to only minimal level. The offender’s father abused alcohol and was violent when intoxicated. Violence was directed at the mother and children. The father spent time in custody. The offender’s mother also abused alcohol. The offender’s mother did not abuse the offender and had no criminal history and his relationship with her was positive as it was with his two sisters.

56. At 13 he was sexually abused by a schoolteacher. This included anal penetration causing bleeding and also defecation which was observed by other students which in turn became a point of ridicule and bullying. It is only now that he is speaking of this childhood abuse.

57. At a young age he mixed with antisocial peers arising in circumstances where he was seeking to be out of the home due to his father’s behaviour. At 18 he had independent accommodation. Since then accommodation has been unstable and he has had periods of homelessness. Perhaps indicative of the offender’s environment, his father is presently in a coma having been physically assaulted by his nephew.

58. The offender is a member of the Bundjalung Nation. His connection to his culture was encouraged as a child but he has been less engaged in his adult life due to a focus on substance abuse and criminal activity.

59. The offender struggled at school and was disruptive at school. He left school at year 9 at age 14. He remains functionally illiterate. He first worked in a sawmill and later as a logger. At 26 he suffered a back injury and has not worked since in consistent employment. This has been due to a significant degree to substance abuse. He has gained money through selling drugs. He hopes when released to work as a traffic controller, for which he has done a course.

60. Apart from his back injury he has suffered lacerations from his ex-partner and head injuries as a result of fights and a workplace injury, though testing showed no adverse results.

61. He commenced drinking at about 13 years of age and says this is not a problem for him having last had alcohol three years prior to the assessment. He started smoking cannabis at 13 years of age which he stole from his parents. This became daily following his sexual abuse. He continued to smoke cannabis daily up to his current incarceration. Use of crystal methamphetamine began when he was 26 and led to smoking ice on a daily basis. He also used other drugs including heroin and also abused prescription drugs not prescribed for him. There has been an attempt at a residential rehabilitation program at Balund-a, which could not in my view be considered a success as the offender remained abstinent only for one month after it. He reported that he was motivated to maintain his abstinence in his present incarceration from which I infer he has been abstinent in this present incarceration. He has also had a gambling addiction.

62. The offender has a nine-year-old son and a five-year-old daughter from his one long-term relationship which ended in about 2019. This relationship was one of violence by both parties. The first child was taken into care by the authorities. An apprehended violence order was applied for against him by his ex-partner.

63. In relation to the current offences he says that he was withdrawing from ice when he was driving the motor vehicle. After that incident his relationship ended and the substance abuse escalated. He says the other offences of breaking and entering and stealing and supplying drugs was to fund his heavy substance abuse and to pay off the debt he owed to an outlaw motorcycle gang.

64. He expressed contrition for his offending stating he felt horrible about the deaths and often thinks what he could have done differently. He voiced particular concern for Mr Ward, his childhood friend.

65. In custody he is in a special management area placement. He says one of the deceased has a brother in custody and also has links to an outlaw motorcycle gang. In 2020 in custody he incurred three offences. The concerns expressed for the offender’s safety are supported by the letters he received which are in evidence. He worked initially but then that work became unavailable. He has undertaken various courses.

66. The report contains a psychological assessment. He initially sought assistance for mental ill-health in 2014 after his son had been taken from his care. He says he was diagnosed with depression and was prescribed an antidepressant and given a mental health care plan. He attended only one session with a psychologist due to his increased abuse of substances. Four years later he again sought intervention to assist in regaining care of his son. He was again diagnosed with depression, prescribed antidepressants and given a mental health care plan. He again did not persist with psychological intervention due to his drug abuse.

67. Symptoms of depression emerged from 2014 in the wake of the removal of his son from his care and worsened in 2019 when the offender’s long-term relationship ended. The psychologist considers the offender meets the diagnostic criteria for persistent depressive disorder. The psychologist also considers the offender meets the diagnostic criteria for post-traumatic stress disorder based on reported symptoms of hypervigilance, exaggerated startle response, irritability and sleep disturbance and recurrent distressing dreams. These symptoms emerge from a background of repeated traumatic events such as family violence, childhood physical and sexual abuse, and a home invasion in 2019 where his life was threatened.

53. The report then refers again to what I consider to be a significant feature of the offender’s history which is his heavy ice abuse from the age of 26. The offender said he would spend a great deal of time engaging in activities necessary to obtain ice, to use ice and then recover from its effects. This resulted in him failing to fulfil his obligations at home and as already noted impacted on his work options. This founded a finding of stimulant use disorder by the psychologist. Reference was made to an assessment of cognitive functioning which showed the offender to be in the low average range.

54. The psychologist undertakes a risk assessment. The risk factors considered were the range of matters of history set out above with the conclusion that there is a high risk of reoffence. This risk can be reduced with successful rehabilitative efforts on addressing social and substance abuse needs. Simply put the risk of reoffending reduces if support is given to manage the PTSD and depressive disorders which contribute to his substance abuse.

55. At paragraph 44 the view is expressed that the offender’s “early life experiences have had a significant and enduring impact on his trajectory through life, affecting his psychological stability and well-being, his cognitions and his behaviour. It would appear that this in turn has influenced his engagement in offending and contributed to his risk”.

56. As with the risk of reoffending the prospects of rehabilitation are also considered to be poor but also may improve subject to there being effective intervention.

57. Custody poses problems for the offender. It is said to worsen his back pain, and there is the fear for his safety when in mainstream custody. Custody also triggers reminders of his early traumatic experiences in gaol which are not specified.

58. The report recommends psychological intervention for PTSD and depressive disorder. This is more likely available in the community than in custody. The offender may also be eligible for a mental health care plan from his GP. Further intervention is required for the substance abuse history. Should there be a community-based order a residential rehab program is recommended.

59. There was no real challenge to the history recorded in the psychologist’s report nor to the opinions expressed by Mr Brabant. I accept that the history given establishes a childhood background of social disadvantage. Not only was that a background of disadvantage by reason of neglect and lack of care by his parents it was a childhood where violence and illegal activity were normalised. In addition I accept the offender suffered sexual abuse as described in the report.

60. I also accept the findings of how in those circumstances a lifetime of drug abuse ensued though it does not appear to have become unmanageable prior to the age of 26 with the commencement of the use of methylamphetamine.

61. The assessment of cognitive ability being poor and of poor literacy are also noted and accepted. The overall impact of these personal circumstances of the offender is that he is a person ill-equipped to manage his life in a pro social way. This in turn is compounded by mental health issues emerging in 2014 of persistent depressive disorder and there is also a view expressed of the criteria being met for post-traumatic stress disorder, no doubt based in part on the sexual abuse. The diagnostic criteria for severe stimulant disorder was also said to be met, something that is totally consistent with the offender’s history and I accept.

62. In these circumstances the offender in oral submissions made reference to and relied on the principles of Bugmy (2013) 249 CLR 571 for leniency, a submission which is well founded and I accept and apply. The offender in both oral and written submissions properly called in aid the decision of Millwood v R [2012] NSWCCA 2 and in particular the oft cited passage in the judgment of Justice Simpson at [69]. The effect of that passage is that an offender who has the start in life of the type experienced by this offender does not bear equal moral responsibility with a person who might have experienced what might be termed a “normal” upbringing. To quote her Honour “common sense and common humanity dictate that such a person will have fewer emotional resources to guide his (or her) behavioural decisions”. As Simpson JA pointed out this does not mean such a person bears no moral responsibility. The position is as her Honour went on to state that such a background is a relevant consideration for “affording some (although limited) mitigation”.

63. The offender argued that there was a clear causal connection between the offending and this background. I accept that in the terms on which the propositions to that effect are put in Millwood just stated, and which was relied upon by the offender. It may be a distinction without a difference but this I consider to be an approach different to a reliance on the principles of De la Rosa dealing with the appropriate way to deal with mental ill-health when causative to some extent of the offending.

64. The circumstances of the offender’s background therefore allow him some leniency and have the effect of lessening his moral culpability. It is important however that the limitation or qualification of Simpson J is borne in mind and the extent of the mitigation to be given effect to will vary with each case, and it is taken into account here in determining the offender’s sentence.

65. In his letter provided to the court the offender expressed sorrow and regret to the family of both deceased and to Ms Fox and her family. I accept that the offender has expressed remorse but any mitigating the effect of that must be tempered by his appalling conduct immediately following the crash and by his exculpatory versions of events given in his two interviews with police.

66. The courses undertaken in custody included five topics of remand addictions over two days, domestic violence sessions in total 6/5 days, attendance at a connect resilience program focusing on communications schools and logical mind and emotional mind and other matters; a vocational pathways certificate which required the completion of 11 units; and a computer certificate. I accept that this shows an acceptance of the need for intervention. The evidence showed his behaviour in custody had improved in the last 18 months.

67. The history given by the offender is supported by a letter to the court by his sister Alice O’Connor. She talks of living in a tent for a while and of the parents having parties that went the days and with their father drinking a lot and being violent. Ms O’Connor says the children would stay out till dark before coming back into the house. Their father denigrated them. There was much drug use. The father also punished them disproportionately to their behaviour including as I read the letter by tying them up.

68. A letter of a GP evidences that the offender’s mother has a life expectancy of less than five years due to her state of health. I have taken this into consideration but in all the circumstances of this case it will have little if any impact on the ultimate sentence.

69. Lastly there were two letters before the court received by the offender when in custody which are threatening, with one stating in relation to the offender’s time in jail “we’re gonna make sure you’re not getting out”. In addition to those matters in terms of the burden of custody I note the back condition referred to above and I also note the harder times in custody in Covid conditions. This latter factor is of more weight than the first. The issue with Covid should be recognised as not just the need for isolation when there is a risk of the disease spreading but also the impact it has on staffing levels. There was no evidence of this in this case, but it is referred to frequently in sentencing matters to the point that judicial notice may be taken of it, as well as what is reported on so widely with the difficulty for that same reason in many businesses. The effect of this is that there are increasing times where prisoners spend as much as 23 hours and even more per day in their cell for days at a time.

70. The offender receives some leniency due to his background as discussed above. He has also shown some late degree of remorse, and an increasing willingness for intervention. At the same time, it is that same history and his history of offending that results in any assessment of his future prospects as being poor, and his risks of reoffending as being high.

Sentencing considerations

86. Section 3A of the CSPA sets out the purposes of sentencing as follows:

86.1. To ensure the offender is adequately punished;

86.2. To prevent crime by deterring the offender and others from committing similar offences;

86.3. To protect the community from the offender;

86.4. To promote the rehabilitation of the offender;

86.5. To make the offender accountable for his actions;

86.6. To denounce the conduct of the offender;

86.7. To recognise the harm done to the victim of the crime and the community.

87. The offence of manslaughter has been described as a protean one, that is one where the circumstances of the offending can be found in the broadest expanse of possibilities. I note the following statements of Johnson J in R v Van Xuan Nguyen[2005] NSWSC 600 at [21]–[24]:

"[21] The maximum penalty prescribed for the offence of manslaughter is imprisonment for 25 years: s 24 Crimes Act 1900. The offence of manslaughter involves the unlawful taking of a human life, and as such it has long been recognised as one of the most dreadful crimes in the criminal calendar: R v Hill (1981) 3 A Crim R 397 at 402. In R v MacDonald (Court of Criminal Appeal, 12 December 1995, BC9501664), the Court (Gleeson CJ, Kirby P and Hunt CJ at CL) said at page 8:

'Manslaughter involves the felonious taking of human life. This may involve a wide variety of circumstances, calling for a wide variety of penal consequences. Even so, unlawful homicide, whatever form it takes, has always been recognised by the law as a most serious crime. (See R v Hill (1981) 3 A Crim R 397 at 402.) The protection of human life and personal safety is a primary objective of the system of criminal justice. The value which the community places upon human life is reflected in its expectations of that system.'

[22] In R v Blacklidge (Court of Criminal Appeal, 12 December 1995, BC9501665), Gleeson CJ (Grove and Ireland JJ agreeing) said at page 4:

'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.'

[23] The importance of denunciation in sentencing for manslaughter has been stressed: R v MacDonald, above, at page 9. Little assistance is to be gained by reference to sentencing statistics which encompass all forms of manslaughter, save so far as they disclose a broad range within which sentences have been passed since their compilation began: R v Mohamad Ali [2005] NSWSC 334 at paragraph 61.

[24] A sentence for manslaughter must reflect the seriousness of unlawfully taking the life of another human being and it is not of great moment whether the killing is characterised as coming within any particular head of manslaughter. Rather, it is a question of what sentence is required to reflect the objective facts by way of retribution and denunciation, the subjective circumstances and, if necessary, deterrence: R v Walsh [2004] NSWSC 111; (2004) 142 A Crim R 140 at 149 (paragraph 40); R v Mohamad Ali, above, at paragraph 56.

88. The offender’s counsel drew the Court’s attention to the recent case of Moananu v R [2022] NSWCCA 85. No particular submission was founded on this case but rather it was put forward as an example of a case canvassing a range of different circumstances resulting in charges similar to the present. The ground of appeal on which the offender succeeded in Moananu was that the sentence was manifestly excessive. The appellant had pleaded guilty to 2 counts of manslaughter and in respect of one of those counts an additional three traffic offences were taken into account by way of the Form 1 procedure. One of the deceased was pregnant with twins. A third count was of aggravated dangerous driving occasioning grievous bodily harm. The three Form 1 offences were driving on the wrong side of the road and causing bodily harm to a fourth person, driving without a license, and driving while cannabis was present in his blood. The offender’s blood alcohol limit was in excess of .2. Prior to driving he had spent eight hours in a pub. His driving was erratic, weaving in and out of traffic at excessive speed. The driving extended over more than 6 km.

89. The finding as to objective seriousness was that the two manslaughter offences fell within the high end of the range of objective seriousness but were not within the worst category of such cases.

90. The subjective case was a strong one. There were findings of remorse and of a deprived and dysfunctional childhood and other mitigating features. The deprived childhood was extreme including of the offender being beaten by his mother with a piece of wood with nails. The childhood history was of abandonment, family violence, dysfunction and exposure to alcohol. The offender was taken from his family when his parents no longer wanted him. The offender scavenged for food in school garbage bins. His parents gambled away what money they had. At the age of 10 the offender was left in charge of his baby brother who died that night.

91. The limitations on the assistance to be gained from comparable cases is recognised by Moananu, (see eg at [7]) and at the same time reference is made to numerous cases in the course of determining whether the ground of manifest access had been made out. The indicative sentences were 8 ½ years, 9 years and 4 ½ years after the application of the 25% discount. As noted by Justice Hamill at [67] the starting points were therefore 11 years and four months, 12 years and six years. The aggregate sentence imposed was 15 years with a non-parole period of 10. On appeal by majority the indicative sentences after the 25% discount were 7 years and 6 months, 8 years and 3 months, and 4 years and 6 months, with an aggregate sentence imposed of 12 years six months with a non parole period of 8 years and 4 months.

92. The so-called comparable cases, bearing in mind the limitations, are helpful in demonstrating the range of factual situations in which these charges can occur in connection with motor vehicles and also for showing examples of the length of sentence given in such cases. Justice Hamill commencing at [141] referred to the following cases with paragraph citations omitted:

92.1. Smith v R [2020] NSWCCA 181: the offender consistently drove her car at dangerous speed for a period far from momentary. She twice drove into a bush at a supermarket. She ignored an offer made twice for her friend to drive home. She scraped the car on a speed hump. She narrowly missed a small boy and his dog. At one point the right side of the car was airborne. She narrowly missed a vehicle travelling in the opposite direction. The speed was said to be extreme as was her lack of control over the car. The objective gravity of the offence was said to be extreme. One person was killed. It occurred on a road near Taree. The sentence imposed was 9 years imprisonment with a non-parole period of 6 years and 9 months. She drove with cannabis in her system. Like Mr Moananu she had a strong and similar subjective case. The sentence was found to be manifestly excessive and reduced to a term of 7 years and 6 months with a non-parole period of 5 years.

92.2. Woodbridge v R [2010] NSWCCA 185; the offender was grossly intoxicated, collided with a median strip on a curve and crashed into oncoming traffic. One person died while a surviving victim became wheelchair-bound. The blood alcohol reading was .277. The area travelled was 9 km in a built up area including schools and shopping centres. The matter proceeded to trial. The sentence imposed was 6 years imprisonment with a non-parole period of 4 years. The Crown appealed and the sentence was increased to 7 years with a non-parole period of 4 years for the manslaughter and a 3 year term for the grievous bodily harm with accumulation to the extent of 2 years, so the effective sentence was 9 years with a non-parole period of 6 years.

92.3. Duncan v R [2012] NSWCCA 78: the offender was driving with five young people. At the time of the crash she had accelerated to about 200 km/h, failed to take a bend and collided with a number of trees. Two passengers were killed and three suffered serious injuries. For each count of manslaughter there was a 9 year and 6 month sentence with non-parole periods of 5 years imposed. For the three dangerous driving offences there were fixed terms of 3 years imposed. The overall sentence amounted to 12 years and 6 months with a non-parole period of 8 years. This was held to not be manifestly excessive

92.4. In Crowley v R [2021] NSWCCA 45 the offender was pursued by police and travelled at speeds exceeding 140 km/h in a 70 km/h zone. He evaded the police and was later observed travelling against the flow of oncoming traffic side swiping several cars before colliding with the vehicle of the first victim and then had a head on collision with another car. Three passengers were seriously injured and one person was killed. At the time of collision he was travelling 144 km/h in an 80 km/h zone. This driving was described as dangerous in the extreme and manifesting an abandonment of responsibility approaching the highest level. The indicative sentences after applying the 25% discount was 11 years for manslaughter and 4 years and 8 months for each of the dangerous driving charges with an aggregate sentence imposed of 14 years and 3 months and a non-parole period of 10 years. The Court of Criminal Appeal did not intervene but described the sentence as a severe one.

93. I note above I assessed the objective seriousness of the present manslaughter offences as in the mid range and the grievous bodily harm offence in this case as in the low mid range. The driving in the present case represented an abandonment of any care or responsibility for fellow road users. As an example of such irresponsible driving it is not as egregious as the examples just given. Whilst there is excessive speed it is on a highway where the traffic, whilst present, could not be described on the evidence as more than modest. The maximum speed referred to in the facts is 144 km/h, on a highway where the speed limit was not stated in the facts, but I infer was likely to be either 100 km/h or 110 km/h, and at the time the vehicles came into contact causing the driver to lose control of the Lancer the speeds being travelled were approximately between 102 km/h and 112 km/h. The offender remained on the correct side of the road. It was not a built-up area. Adverse to the offender’s case is the factor identified at [26] above, the element of the pursuit by the offender of the Lancer and his manner of doing it, and his pressing on with it when the Lancer was moving further to the right, and thus out of room.

94. Returning then to the purposes of sentencing. In cases such as this, general deterrence is important; see Moananu at 4. That is to be tempered by my acceptance of the submission based on Millwood. I also accept the submission of the Crown for the strong need to denounce this behaviour. There is a need to make the offender accountable for his actions and to protect the community as well as to recognise the harm done to the victims and the community. It is also necessary to structure the sentence to promote rehabilitation. I appreciate that all of the purposes of sentencing have just been mentioned. In my view particular weight should be given to deterrence, both general and specific denunciation, recognising the harm done and protecting the community. As already noted, the weight to give deterrence is tempered by the subjective case, but it remains an important issue. Motor vehicles are ever present in the day to day lives of members of the community and when driven in the manner driven here pose a significant risk of harm.

93. There is a need to promote rehabilitation, and in my view in this case that purpose is met by a consideration of special circumstances. There is a sound basis for a finding of special circumstances. I accept the history of the offender’s childhood traumas and that they found a basis for a finding of social deprivation which I make and that the principles of cases such as Bugmy and Millwood have a role to play.

94. The background of the offender, and the fact that he is now 37 means that any hope of rehabilitation would be a lengthy process. The psychological report recounted above does not set out a bright future and realistically viewed suggests that the chances of not reoffending and successfully rehabilitating are not good.

95. Favourable to the offender is that this offending is by far the worst offending he has engaged in despite his background and having had a lifetime seemingly spent in an environment of antisocial conduct. That is not to say his record is good, it is simply not one which has involved offending as serious as this, and that is a reference not only to the manslaughter and grievous bodily harm charges but also the drug offending and the serious breaking enter and stealing.

96. That the offender’s offending had for his adult life until age 34 had remained of the nature that it was suggests there is some scope for rehabilitating him to lead a pro social life. To facilitate that the statutory ratio of the balance of the term to the non parole period should be increased.

97. With respect to the other offences, they were also committed whilst the offender was on conditional liberty and that must be taken into account. Relevant to the overall sentencing process is that despite this horrific event having occurred in December 2018 the offender carried on his criminal lifestyle. Whilst I have found that he has expressed some remorse and indeed is remorseful the weight given to that finding is tempered by the fact that it was very slow to be realised.

98. In the sentencing of the break and enter and steal offence the focus needs to be on deterrence, again tempered by my subjective case findings, and protection of the community, as well as denunciation and accountability. The same can be said of both the drug offending and the firearms offences with a greater emphasis in those cases on protection of the community. The same considerations as to rehabilitation apply to all of the offences in the way found in respect of the manslaughter and grievous bodily harm charges.

99. It need not be stated that there is no issue that there is no appropriate sentence other than a term of full-time custody in respect of each of these offences. Reproduced below is the table that appeared earlier in these reasons but amended to no longer indicate the date of the offending and instead to show the objective seriousness assessment and the indicative sentence for each offence before and after the application of the 25% discount. In respect of the two matters in which there is a standard non-parole period it is necessary to also indicate the non-parole period that would have applied for that sentence had an aggregate sentence not been the approach and those periods are set out after the table.

Table of Indicative sentences

Charge	Max Pen	SNPP	Form 1	Obj ser	Ind	Ind less 25%
Manslaughter Daniel Elliott	25 y	No	52AB	Mid	8 y	6 y
Manslaughter Jared Ward	25	No	52AB	Mid	8 y	6 y
GBH Renee Fox	10	4	52AB(2)	Low mid	4 y	3 y
Supply 72.25 meth	15	No	s25(1) x 2; 112 g and 9g meth	Low mid	3 y	2 y 3 m
Agg BES	20	5	No	High low	3 y	2 y 3 m
Poss firearm	14	No	s65(3) Poss ammo	Low	2 y	18 m
Poss loaded firearm in public place	10	No	High low	16 m	1 y

102. The non parole periods for the grievous bodily harm offence and the aggravated break enter and steal offence had an aggregate sentence not been imposed would have been approximately 2 years and 3 months, and 20 months respectively, periods which approximate the ration of the non parole period set for the aggregate sentence set out below. This differs from the standard non parole periods because the assessment of objective seriousness is in each case below the middle of the range of objective seriousness as referred to in s54A, and also due to the factors founding the finding of special circumstances.

Totality

103. On the question of totality I proceed on the basis that the sentence should reflect the overall criminality of the offender in the way discussed in R v MAK [2006] NSWCCA 381 at [15]-[18]. Those passages make the point that the aggregation of all the sentences is “a just and appropriate measure of the total criminality involved”. The point is made that the severity of the sentence is not simply linear. Further an extremely long total sentence may be crushing in the sense of creating a feeling of hopelessness in the offender. At the same time the impression is not to be given of a discount being given for multiple offending.

104. The principles regarding totality were reviewed by RA Hulme J in Hall v R [2021] NSWCCA 220 at [52] et seq. At [54] R v Holder [1983] 3 NSWLR 245 was referred to which makes plain that what is required is for a sentencing judge to evaluate the overall criminality involved in all of the offences and to adjust the aggregate sentences “to achieve an appropriate relativity between the totality of the criminality and the totality of the sentences”. Put perhaps even more simply his Honour referred to Mill v The Queen [1988] HCA 70 where it was said the Court “must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences”.

105. Significantly in the case the manslaughter and grievous bodily harm charges are clearly discrete from the drug offences which in turn are discrete from the break and enter and steal offence. Despite what may be reasonably suspected, the firearms offences on the evidence are also separate.

106. In regard to this separateness of the offences, I note that at [60] of Hall his Honour referred to the well-known passage of Cahyadi v R [2007] NSWCCA 1, where the question was posed as being whether the sentence for one offence can comprehend and reflect the criminality for another offence. Importantly in the present case that passage (at [27]) includes the following;

“this is so regardless of whether the offences represent two discrete acts of criminality or can be regarded as part of a single episode of criminality. Of course it is more likely that where the offences are discrete and independent criminal acts the sentence for one offence cannot comprehend the criminality of the other. Similarly where they are part of a single episode of criminality with common factors it is more likely that the sentence for one of the offences will reflect the criminality of both”.

107. The offender’s submissions recognised the discrete nature of the different categories of offending. I accept the submission that the manslaughter and reckless grievous bodily harm offences should have a significant degree of concurrence as they arise from the same conduct. The concurrency should not be total, and the submission was not to that effect. In each offence there has been a separate consequence of death and grievous injury which must be reflected in the aggregate sentence.

108. The Crown submitted that there should be a significant degree of accumulation in respect of the drug charge, and there would be no reason why that submission would not be made in respect of the aggravated break enter and steal and firearms offences also. The offender conceded there would be significant accumulation across the different categories of offending. I accept that to be so, but consider the aggregate sentence must be one that is not a “crushing” one. I also bear in mind, as was submitted for the offender, that whilst the different categories of offending are in one sense discrete and disconnected, the criminality has the common thread of the lifestyle led by the offender, arising in the circumstances of his life set out above.

Determination of sentence

109. Adopting these principles to the present case, and to make the reasoning clear, based on the above indicative sentences I have assessed a notional aggregate sentence for the manslaughter and reckless grievous bodily harm offences and then separately to that, a notional aggregate sentence for the firearms offences, and then taken into account the indicative sentences for drug offence and aggravated break enter and steal offence, and then made the final overall assessment of the aggregate sentence. That approach arrived at a notional aggregate sentence for the manslaughter and reckless grievous bodily harm offences of 10 years, and for the firearms offences, 2 years. Considering then the indicative sentences of the drug and break enter and steal offences (both 2 years and 3 months) together with the notional aggregate sentences, the ultimate aggregate sentence is 14 years.

110. This approach may appear cumbersome. When considering the outcome care needs to be applied to ensure it is recognised that the “notional” aggregate sentence of 10 years has already been arrived applying principles of totality. If an assessment was made without recourse to the “notional aggregate sentences” process adopted, an assessment which I have undertaken, I come to the same result.

111. The non parole period, consistent with the finding of special circumstances and the basis of that finding, should be 9 years. I note applying the statutory ratio the non parole period would have been 10 years and 6 months, so the additional period allowed for supervision is 18 months, a period consistent with the found need for long term supervision.

112. The parties differed as to the date the sentence should be backdated to. The offender was arrested on 3 July 2019 and has been in custody since that time. At that time he was on an ICO which was later revoked, and the expiring date of which was 18 February 2020. The offender contends the commencement date should be 3 July 2019. The Crown submitted that some later date is appropriate so as to reflect the different offending for which the ICO was imposed. That offending was firearms offences and possession of prohibited drugs. Due to the nature of the firearms offending, I accept the Crown submission, they being serious charges. The commencement date will be 1 November 2019.

113. As the offender will be convicted of two counts of manslaughter and one count of recklessly causing grievous bodily harm, he is convicted of a “serious violence offence” as defined by s5A of the Crimes (High Risk Offenders) Act 2006 (NSW). Pursuant to s25C(1) of that Act the offender is warned of the existence of that Act and its application to him.

Orders

114. The offender is convicted of each of the 7 charges set out in the above table.

115. Taking into account the objective seriousness of each of the matters and the subjective matters detailed above, and taking into account the various Form 1 matters in relation to the particular offences to which they relate, and applying the 25% discount for the early plea of guilty, the offender is sentenced to an aggregate term of imprisonment of 14 years, to date from 1 November 2019, and with a non parole period of 9 years, to date from 1 November 2019 and expiring on 31 October 2028.

Decision last updated: 20 May 2022