R v Elkassir

[2013] NSWCCA 181

Court of Criminal Appeal

New South Wales

Case Title:	R v Elkassir
Medium Neutral Citation:	[2013] NSWCCA 181
Hearing Date(s):	21 June 2013
Decision Date:	02 August 2013
Before:	Emmett JA at [1] R A Hulme J at [7] R S Hulme AJ at [87]
Decision:	Appeal dismissed.
Catchwords:	CRIMINAL LAW - sentencing - Crown appeal - aggravated dangerous driving causing death - high moral culpability - strong subjective case - self punishment - consideration of guideline judgment in Whyte - importance of general deterrence even for young offender CRIMINAL LAW - sentencing - dangerous driving causing death - aggravated offence - double counting of speed of vehicle CRIMINAL LAW - sentencing - manifest inadequacy of non-parole period - residual discretion - principles - subsequent worsening of psychiatric condition
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 (NSW) Criminal Appeal Act 1912 (NSW)
Cases Cited:	Bugmy v The Queen (1990) 169 CLR 525 Deakin v The Queen (1984) 58 ALJR 367 Director of Public Prosecutions v Neethling [2009] VSCA 116; 52 MVR 422 DPP (Cth) v De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1 Duncan v R [2012] NSWCCA 78 Green v The Queen [2011] HCA 49; (2011) 244 CLR 462 KT v R [2008] NSWCCA 51; (2008) 182 A Crim R 571 Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 Power v The Queen (1974) 131 CLR 623 R v AEM Snr [2002] NSWCCA 58 R v Baker [2000] NSWCCA 85 R v Dhanhoa [2000] NSWCCA 257 R v Fidow [2004] NSWCCA 172 R v Hamieh [2010] NSWCCA 189 R v Howcher [2004] NSWCCA 179 R v Koosmen [2004] NSWCCA 359 R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566 R v Ryan [2003] NSWCCA 202 R v Simpson (2001) NSWCCA 534; (2001) 53 NSWLR 704 R v Whyte [2002] NSWCCA 343; (2002) 55 NSWLR 252
Category:	Principal judgment
Parties:	Regina Mohammed Elkassir
Representation
- Counsel:	Counsel: Ms J Dwyer (Appellant) Mr T Game SC (Respondent)
- Solicitors:	Solicitors: Solicitor for Public Prosecutions J H Fisher & Sons
File Number(s):	2011/215236
Decision Under Appeal
- Court / Tribunal:	District Court
- Before:	Flannery DCJ
- Date of Decision:	14 December 2012
- Court File Number(s):	2011/215236

JUDGMENT

1. EMMETT JA: This Crown appeal relates to the sentence imposed on the respondent following a plea of guilty to a charge of aggravated dangerous driving occasioning death. The respondent was sentenced in the District Court to imprisonment for three years, with a non-parole period of 12 months. I have had the advantage of reading in draft form the proposed reasons of R A Hulme J, in which his Honour concludes that, notwithstanding the manifest inadequacy of the non-parole period, the Crown appeal should be dismissed.

2. On the evening in question, the respondent and three friends were at a poker tournament at a hotel in Condell Park. The respondent and one of his friends left in the respondent's car. The other two left in a second car. Shortly after leaving the hotel car park, the two cars drew together. The respondent attempted to incite the driver of the other car to a race. The other driver declined. The respondent then followed the other car for a short distance until just before the crest of a hill. As he approached the crest of the hill, the respondent passed the other car, at a speed of around 110 or 115km per hour, in a zone where the limit was 60km per hour. As the respondent's car reached the crest of the hill, he lost control and his car went onto the near side footpath and collided with a bus shelter and a wooden utility pole. As a result of the impact, the respondent sustained quite severe injuries and his passenger suffered fatal injuries.

3. In assessing moral culpability on the part of the respondent, the sentencing judge took into account the fact that there was an element of competitive driving or showing off in the respondent's conduct that led to the fatal collision. The respondent accepted that, at the time of the collision, he was driving at a speed that was more than 50km per hour in excess of the applicable speed limit. That, of course, is the basis upon which he was charged with aggravated dangerous driving, because the car was being driven at a speed that exceeded the speed limit by more than 45km per hour.

4. The sentencing judge said, in considering the aggravating factors relevant to the respondent's moral culpability, that "the manner of the offender's driving is more towards the latter end of the continuum, bearing in mind the length of the journey, the degree of speed involved and the element of competitive driving or showing off". However, the speed at which the respondent was driving at the relevant time was already an element of the offence with which he was charged. To that extent, the sentencing judge's approach appears to involve double counting. It may also be accepted that the length of the journey, which in this case was very short, was of little significance.

5. The other aggravating factor referred to by the sentencing judge was "the element of competitive driving or showing off". R A Hulme J finds this also to be of little significance, like the length of the journey, and that it was based upon the respondent speeding away when his challenge to a race was turned down and so adds little to the speed aspect.

6. I consider that the conduct of the respondent, in following the other car and then overtaking it after his invitation to race was refused, was an aggravating factor distinct from the speed at which the respondent was driving and that it increased the moral culpability of the respondent. Subject to that comment, I agree with the reasons of R A Hulme J. I agree with the order proposed by his Honour.

7. R A HULME J: The Crown has appealed pursuant to s 5D(1) of the Criminal Appeal Act1912 (NSW) in respect of a sentence imposed upon Mohammed Elkassir (the respondent) in the District Court at Sydney on 14 December 2012.

8. The respondent was sentenced by her Honour Judge Flannery for an offence of aggravated dangerous driving occasioning death to imprisonment for 3 years with a non-parole period of 12 months. He was also disqualified from driving for a period of 2 years. The sentence was specified to commence on the day of imposition. Accordingly the respondent is to be released upon the expiration of the non-parole period on 13 December 2013.

9. The charge was that the respondent drove a car at a speed dangerous to other persons when it was involved in an impact which caused the death of Mohammed Yatim. The reason why the aggravated form of the offence was charged was that the car was being driven at a speed that exceeded the speed limit by more than 45km/h. The offence is contrary to s 52A(2) of the Crimes Act 1900 (NSW). The maximum penalty prescribed is imprisonment for 14 years.

Facts

1. There were agreed facts tendered before the learned sentencing judge. They were to the following effect.

2. On the evening of 13 April 2011 the respondent and the deceased were together at a poker tournament at a hotel at Condell Park. They left the hotel at about 9pm and entered the respondent's car, a Honda coupe. Two of their friends also left the hotel at the same time and entered a separate car, a Honda Accord sedan.

3. Both cars were driven out of the hotel car park and travelled together a short distance before turning into Marion Street. When negotiating a two-lane roundabout at the intersection of Marion Street the respondent's car drew along side the other car. Through an open window the respondent attempted to verbally incite the driver of the other car into a "street-race" but this was declined. After leaving the roundabout the respondent positioned his car behind the Honda Accord until just before the crest of a hill near Saltash Avenue. Upon approaching that crest the respondent passed the Honda Accord in the number two lane at a speed estimated by a witness to be around 100km/h, the prevailing speed limit being 60km/h.

4. As the respondent crested the hill he lost control and the car commenced to rotate in a counter-clockwise direction. It then went onto the nearside footpath, collided with a bus shelter and then with a wooden utility pole. The agreed facts described the car as being "effectively wrapped ... around that pole".

5. As a result of the impact the respondent sustained what was said to be "a moderate injury" whilst Mr Yatim suffered a fatal injury. (The respondent in fact sustained multiple injuries and they were more than "moderate" in severity. I will provide some detail shortly.)

6. A blood sample was taken from the respondent at hospital which was subsequently analysed for alcohol and drugs with a negative result.

7. There was nothing about the environment that could have had any causal influence upon the collision. The weather was fine; it was dark but there was ample street lighting; traffic conditions were light; and no pedestrians or animals had entered the roadway to cause the respondent to swerve or take evasive action.

8. A forensic crash analysis determined that the respondent had been travelling at a speed between 110 km/h and 115 km/h at the time of losing control; so, 50 km/h to 55 km/h in excess of the speed limit. It was also determined that the loss of control was initiated by the respondent lifting off the accelerator too harshly at a critical phase of his vehicle's cornering motion due to his inexperience in driving at high speeds.

9. The respondent was interviewed by police on 9 June 2011. He said that his only recollection of the evening was attending the hotel with his friends and then later waking up in hospital.

Subjective circumstances

1. The judge's sentencing remarks included a summary of the evidence as to the respondent's personal circumstances. No issue was taken on the appeal as to the accuracy of anything there described. I draw from it the following.

2. The respondent was 18 years of age at the time of the offence and 20 when he stood for sentence. He lived with his parents and siblings in the Bankstown area. He had a close and supportive relationship with his family. He was brought up in a positive environment except for some disruption in his final year of high school when his parents experienced marital difficulties. He missed some schooling and failed to complete his Higher School Certificate.

3. The respondent had been employed for about two years as a sales consultant in a business managed by his father. The general manager of the business gave evidence. He knew the family well and had a lot of contact with the respondent in the previous two years in the work environment. He said that he had noticed "a big difference" in the respondent since the accident. Previously he was enthusiastic, industrious and worked long hours. Subsequently he had difficulty even attending work as he was so weighed down with feelings of guilt because of his responsibility for causing the death of his best friend.

4. The judge referred to the respondent having sustained serious injuries in the accident. These comprised multiple rib fractures and fractures of the sternum, the lumbar vertebrae at L3, the lower end of both ulna and radius, the thoracic vertebrae at T5-6, T7-8 and T9-10. There was also traumatic pneumothorax, capsule tears of the spleen and traumatic subcutaneous emphysema. He spent ten days in hospital and underwent an open reduction of the fracture of the distal radius with internal fixation.

5. The respondent had become extremely depressed with "a very difficult and prolonged grieving process with survivor guilt and thoughts of death or suicide". He attempted self-harm and had been hospitalised once. He had trouble sleeping and concentrating. He reported feelings of hopelessness and had lost interest in things.

6. He had been seeing Dr John Roberts, psychiatrist, since November 2011. Dr Roberts' initial view was that the respondent was suffering from grief compounded by post-traumatic stress disorder. He prescribed medication but the respondent had been reluctant to take it. Dr Roberts suggested that the respondent undergo an MRI and a cerebral perfusion study. The results indicated a degree of intra cranial haemorrhage and scarring of the brain.

7. It was Dr Roberts' view that this damage contributed to the overall picture of a psychiatric condition characterised by considerable levels of depression, anxiety and guilt in relation to the accident and the death of his friend. Dr Roberts believed that the respondent's failure to comply with the taking of medication was prompted by a desire by the respondent to "self-punish" as part of an overall response to guilt. His ultimate diagnoses were "Post-traumatic stress disorder, Cognitive disorder not otherwise specified and as [a] portion of the Post-traumatic stress disorder, Major depression". It was his view that with optimal treatment and the passage of time, a degree of remission would be anticipated but that the symptoms would never completely abate.

8. The judge also referred briefly to a psychological report written by Dr Wendy Roberts. Dr Roberts conducted a number of tests and concluded that there was evidence of two areas of cognitive deficit together with some post-traumatic stress disorder symptoms and emotional disturbance. It was her impression that the respondent was genuinely distressed about the death of his friend.

9. The judge also had a report of another psychologist, Ms Pamela Costantini. Her conclusions were consistent with those set out in the other reports. Ms Costantini was of the view that the respondent would benefit from psychological treatment in addition to psychiatric intervention.

Some findings of the sentencing judge

1. The judge observed that the respondent had no criminal history but also said that "he does have a traffic record that does not particularly assist him". From the ages of 17 to 20 the respondent had incurred six traffic infringements, two of them for speeding, and he had experienced the suspension of his provisional driver's licence three times. In my view the judge was somewhat generous in her regard to the traffic record but the Crown takes no issue with it.

2. Her Honour referred to the respondent having pleaded guilty a number of months before the matter was to proceed to trial. She assessed the utilitarian value of the plea as warranting a reduction of sentence of 20 per cent.

3. With reference to s 21A(3) of the Crimes (Sentencing Procedure) Act 1999 (NSW), her Honour found as mitigating features that the offence was not part of planned or organised criminal activity (I observe that most s 52A offences are not); that the respondent did not have any record of previous convictions (her Honour added that this was less relevant in a case of this type); that he was a person of good character (with a similar observation as to reduced relevance); and that the respondent was unlikely to re-offend and had good prospects of rehabilitation if he started to take the medication prescribed for him and follow recommended treatment plans. Her Honour also found that the respondent was remorseful.

4. Her Honour said the following about the respondent's youth which is the subject of the first ground of appeal:

   His youth is also obviously an extremely significant matter in this sentencing exercise. It is accepted that in sentencing young offenders the emphasis should be on their rehabilitation and that general deterrence is not of the same significance it would be but for an offender's youth, although the emphasis on rehabilitation cannot defeat the primary purpose of punishment or stand in the way of the need to protect society.

Assessment of sentence

1. The judge observed that the maximum penalty for the offence is 14 years imprisonment and that there was no doubt that this was "a very serious offence". She also observed that the authorities had made clear that the real substance of the offence was not just the dangerous driving but its association with the taking of a human life. She then remarked that it was necessary to identify the degree of moral culpability involved.

2. Her Honour noted the Crown submission that the speed and an element of competitive driving or showing off, notwithstanding the absence of other aggravating factors listed in the guideline judgment in R v Whyte [2002] NSWCCA 343; (2002) 55 NSWLR 252 ("Whyte"), warranted a conclusion that the respondent's moral culpability was at a "high degree". The Crown Prosecutor who appeared in the court below had referred to the "element of competitive driving or showing off" as arising from the reference in the agreed facts to the respondent having initially challenged his friends to indulge in a race and, when that was declined, having accelerated away at high speed.

3. Before referring to her Honour's findings in relation to that submission it is worth setting out what was said by Spigelman CJ in Whyte:

   [204] A frequently recurring case of an offence under s52A has the following characteristics.

   (i) Young offender.
   (ii) Of good character with no or limited prior convictions.
   (iii) Death or permanent injury to a single person.
   (iv) The victim is a stranger.
   (v) No or limited injury to the driver or the driver's intimates.
   (vi) Genuine remorse.
   (vii) Plea of guilty of limited utilitarian value.

   ...

   [216] I had earlier set out [in R v Jurisic (1998) 45 NSWLR 209] a list of aggravating factors which had been established in the authorities as follows:

   (i) Extent and nature of the injuries inflicted.
   (ii) Number of people put at risk.
   (iii) Degree of speed.
   (iv) Degree of intoxication or of substance abuse.
   (v) Erratic driving.
   (vi) Competitive driving or showing off.
   (vii) Length of the journey during which others were exposed to risk.
   (viii) Ignoring of warnings.
   (ix) Escaping police pursuit.

   [217] Further consideration of the authorities would cause me to amend this list by changing (v) to read "erratic or aggressive driving" and adding:

   (x) Degree of sleep deprivation.
   (xi) Failing to stop.

   ...

   [229] The guideline for offences against s52A(1) and (3) for the typical case identified above should be:

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

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

   [231] In the case of the aggravated version of each offence under s52A, an appropriate increment to reflect the higher maximum penalty, and what will generally be a higher level of moral culpability, is required. Other factors, such as the number of victims, will also require an appropriate increment.

   [232] The guideline is, to reiterate, a "guide" or a "check". The sentence imposed in a particular case will be determined by the exercise of a broad discretion taking into account all of the factors required to be taken into account by s21A of the Crimes (Sentencing Procedure) Act.

4. Her Honour's conclusion based on Whyte was as follows:

   Having regard to the list of aggravating factors set out in the guideline judgment of Whyte (2002) 55 NSWLR 252 said to be relevant to the moral culpability of the offender, I consider that the manner of the offender's driving is more towards the latter end of the continuum, bearing in mind the length of the journey, the degree of speed involved and the element of competitive driving or showing off that was present.

5. Later in her sentencing remarks her Honour referred to a submission made on the respondent's behalf that the sentence should be of such a length that it could either be suspended or ordered to be served by way of intensive correction order. It may be observed that the principal point of contention between the parties seems to have been whether the respondent should serve a full-time custodial sentence, or whether, notwithstanding imprisonment was called for, some alternative to full-time incarceration was appropriate. After referring to some other matters, her Honour returned to Whyte and said:

   In the guideline judgment in Whyte it was held that in typical cases a custodial sentence will usually be appropriate unless the offender has a low level of culpability as in the case of momentary inattention or misjudgement.

   It also said in that case that where the offender's culpability is high, a full time head sentence of less than three years would generally not be appropriate.

   That sentence contains a built-in discount for a guilty plea of limited utilitarian value.

   For the aggravated version of the offence, which this one is, an appropriate increment is required.

   The present case has some characteristics of the type of case recognised in Whyte as a typical case frequently recurring for an offence of this kind. Those characteristics are that the offender is a young man of good character, with no prior criminal convictions, there was the death of a single person and there is genuine remorse.

   What takes this out of the typical case is that the victim was a very close friend of the offender, there was a plea of guilty worth something more than limited utilitarian value and the offender suffered significant injuries in the collision.

   I have found that on the continuum between momentary inattention or misjudgement at one end and an abandonment of responsibility or high moral culpability at the other end, the offender's driving is towards the higher end of the continuum.

   That finding requires that I impose a sentence of longer than two years custody and so I am unable to deal with the matter by way of a suspended sentence or an Intensive Correction Order.

1. Finally her Honour found that there were special circumstances justifying the imposition of a non-parole period that was less than the usual three quarters of the total term of the sentence. These were, "hardship of the offender's custody because of his psychiatric state, the fact that it is his first time in custody and by reason of his need for an extended period of parole supervision".

Grounds of appeal

1. The Crown relied upon the following grounds:

   Ground 1: Her Honour erred in the manner in which she dealt with the issues of the respondent's youth and general and specific deterrence.

   Ground 2: Her Honour erred in the variation made to the statutory ratio as a result of the finding of special circumstances.

   Ground 3: The sentence is manifestly inadequate.

Ground 1 - error in respect of youth and deterrence

1. It was submitted for the Crown that aside from the mention of general deterrence in the extract from the sentencing remarks set out earlier (at [31]), her Honour did not mention the significance of general and specific deterrence for this type of offence. It was also submitted that her Honour's approach to the respondent's youth was contrary to established principles of sentencing for this offence. It was contended that these errors affected the assessment of the total term as well as the non-parole period, but particularly the latter.

2. Issue was taken by senior counsel for the respondent as to the correctness with which the "principle" the Crown was relying upon was expressed in the written submissions. The Court need not concern itself with that debate. Suffice it to say that there has been discussion about it in a number of decisions and a relatively recent example is to be found in the judgment of Johnson J, with whom Spigelman CJ and McClellan CJ at CL agreed, in SBF v R [2009] NSWCCA 231; (2009) 198 A Crim R 219. That was a case involving two counts of aggravated dangerous driving (exceeding the speed limit by more than 45 km/h) occasioning death committed by a 17-year-old man.

3. Johnson J referred (at [147]-[150]) to Director of Public Prosecutions v Neethling [2009] VSCA 116; 52 MVR 422. There, the Court (Maxwell P, Vincent JA and Hargrave AJA) said (at [53]-[55]) that the long accepted general rule that rehabilitation should be the primary, if not the principal, concern in sentencing a young offender must sometimes give way to other sentencing considerations. The case at hand, one of dangerous driving causing death by an 18-year-old offender, was considered to be such a case. Their Honours explained (at [55]):

   It is precisely because of the tendency of young drivers to drive dangerously that general deterrence must be regarded as of great importance, and youth must be given relatively less weight.

4. Johnson J adopted those observations (at [150]) and added (at [151]):

   The fact that young men (in particular) may have such perceptions [of being "bullet proof"] is a significant reason for general deterrence to be a prominent factor in cases such as these.

5. Mr Game SC contended on a number of bases that the sentencing judge had given appropriate emphasis to general deterrence. Her Honour was influenced by the guideline judgment of Whyte which included a "young offender" as one of the features of the "frequently recurring case". The suggestion by Spigelman CJ that where there is a high level of culpability in such a case a custodial sentence of less than three years would not generally be appropriate by itself factored in the appropriate level of general deterrence.

6. It was also contended for the respondent that there were reasons to ameliorate the need for both general and specific deterrence in this case. The respondent had experienced a deep sense of guilt and grief and there were "significant behavioural/psychiatric sequelae thereto". His self punishment reduced the need for specific deterrence and he was a less suitable vehicle for general deterrence: DPP (Cth) v De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1 at [177].

7. Finally, it was contended that the passage from the remarks on sentence to which the Crown had drawn attention did not support its proposition in any event. Her Honour had referred to "the primary purpose of punishment" and the "need to protect society" not being deflected by an emphasis upon rehabilitation.

8. In my view the statement by her Honour which was quoted earlier (at [31]) is not, with respect, entirely clear. Given the similarity of the wordage, it may be that her Honour was drawing from R v AEM Snr [2002] NSWCCA 58 at [97]. That was a case involving serious sexual assaults in which it was held that the prominence usually given to the youth of an offender had to give way to principles of primary importance: general deterrence and public denunciation. R v AEM is part of a line of cases that stand for the proposition that the importance of the youth of an offender in the assessment of sentence diminishes where the young person has conducted him or herself in the way an adult might by committing an offence that involves violence or is of considerable gravity: KT v R [2008] NSWCCA 51; (2008) 182 A Crim R 571 at [25] per McClellan CJ at CL. The importance of general deterrence in driving offences of the present type stems from different bases as I have noted above. But the practical effect is the same: the need for rehabilitation of the offender is diminished by the need to protect society.

9. It must be borne in mind that her Honour sentenced and announced her reasons ex tempore. There are many statements to be found in judgments of this Court as to the care with which one must consider sentencing remarks delivered in this fashion, an example of which is R v Hamieh [2010] NSWCCA 189 at [29]-[33] per Beazley JA, Kirby and Johnson JJ. It is pertinent to quote the pithy observation of Spigelman CJ in R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566 at [48] to which their Honours referred:

   The conditions under which District Court judges give such reasons are not such as to permit their remarks to be parsed and analysed.

10. I am not prepared to conclude that the sentencing judge misapplied any principle about the importance of general deterrence in dangerous driving causing death or grievous bodily harm offences committed by young offenders as the Crown contends. Whether sufficient emphasis was given to both general and specific deterrence, based upon both the objective and subjective facts of the case, is a matter that can be left for assessment under Ground 3.

11. I would not uphold Ground 1.

Ground 2 - error in reduction of non-parole period

Ground 3 - manifest inadequacy

1. These grounds are related and, as they were dealt with in the submissions together, it seems appropriate that I do likewise.

2. The Crown accepted that it was open to her Honour to find that there were special circumstances for reducing the term of the non-parole period. However, it was contended that the respondent's subjective case did not warrant a reduction to 33 per cent of the total term. This, the Crown argued, suggested that her Honour had placed "undue weight" on the subjective case, including his youth.

3. In responding to the "undue weight" submission, Mr Game reminded the Court of the statement by Spigelman CJ in R v Baker [2000] NSWCCA 85 at [111]:

   Questions of weight in the exercise of a discretion are matters for the first instance judge. The circumstances in which matters of 'weight' will justify intervention by an appellate court are narrowly confined.

4. Counsel for the Crown referred to statistics maintained by the Judicial Commission of New South Wales which indicate that where there has been a plea of guilty and the offender is aged 18-20 years, the shortest sentences imposed in the 7 years to September 2012 have been 3 years and the shortest non-parole periods have been 18 months. There are only 8 cases in this database. The Crown, correctly with respect, acknowledged that this was of "limited usefulness". I find the statistics to be of very little assistance indeed.

5. The Crown also placed some reliance on three cases in this Court: R v Ryan [2003] NSWCCA 202; R v Howcher [2004] NSWCCA 179 and Whyte itself. The cases are few in number and are distinguishable in a variety of ways. For example, Ryan was a case of considerably greater objective seriousness. The offender in Howcher was on a bond, he was unlicensed and had never held a licence, and his driving on the occasion in question was not an isolated aberration. Whyte involved sentencing for a different offence (s 52A(4)) with a different maximum penalty (11 years).

6. In relation to the Whyte guideline, the Crown accepted, as the judge did, that there were a number of factors in this case that distinguished it from the "frequently recurring case" described by Spigelman CJ. But it was submitted that the head sentence imposed was the minimum suggested in the guideline that was applicable to the basic offence in s 52A(1) and "there is no apparent increment for the aggravated offence in respect of which the respondent was sentenced". That submission seems to assume that the distinguishing factors were of no significance. In my view they were.

7. Mr Game made reference to the various favourable aspects of the respondent's subjective case which he described as "very strong". It was submitted that aside from those matters, the psychiatric evidence indicated that the respondent was suffering a form of punishment and would do so "over a substantial and potentially indefinite continuum". This was said to be significant as well in "how time in custody is likely to be served, particularly with an offender ... who has a desire to 'self punish'".

8. Counsel for the respondent also sought to align the circumstances of self-punishment in this case to that in R v Dhanhoa [2000] NSWCCA 257, a case said to involve similar culpability but also a psychiatric condition and self-punishment. It was submitted that the approach taken there should be adopted here.

Consideration

1. The starting point for determination of ground 2 is to have regard to the common law principles that guide the setting of a non-parole period. They have been identified by the High Court of Australia, principally in Power v The Queen (1974) 131 CLR 623, Deakin v The Queen (1984) 58 ALJR 367, and Bugmy v The Queen (1990) 169 CLR 525. After reference to Power and Bugmy, Spigelman CJ in R v Simpson (2001) NSWCCA 534; (2001) 53 NSWLR 704 at [65] described the setting of a non-parole period as involving a:

   need to ensure that the time an offender must spend in prison reflects all of the circumstances of the offence and the offender - including the objective gravity of the offence and the need for general deterrence. (Emphasis added)

2. Alongside those principles is the statutory constraint provided by s 44 of the Crimes (Sentencing Procedure) Act of there needing to be "special circumstances" for setting the non-parole period at a level, in effect, at less than three quarters of the total term of the sentence. The correct approach to dealing with that constraint was authoritatively set out in the judgment of Spigelman CJ in R v Simpson and later in R v Fidow [2004] NSWCCA 172.

3. The written submissions for the respondent included reference to the statement of the High Court in Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 at [57] that "the non-parole period is imposed because justice requires that the offender serve that period in custody". On its own, the precise meaning of that statement is not readily apparent. It does become apparent, however, when regard is had to the fact that the Court cited as authority for it both Power and Bugmy. I do not understand what was said in Muldrock as in any way qualifying the expression of the principle by Spigelman CJ quoted above.

4. Before dealing with the adequacy of the non-parole period I will state my conclusions as to the submissions that concerned both it and the total term of the sentence.

5. As to Mr Game's reliance upon R v Dhanhoa, supra, I readily accept that the respondent's self punishment was "remarkably similar" to the offender in that case. But the written submissions went on (at [61]) to assert that "the culpability of the respondent in this case was comparable to that in Dhanhoa". The offender in Dhanhoa committed an offence against s 52A(1) for which the prescribed maximum penalty is imprisonment for 10 years. The respondent in the present case committed an offence against s 52A(2) with the higher maximum penalty earlier noted. Their respective culpabilities for their offences cannot be equated.

6. R v Dhanhoa was a case involving an offender who suffered post-traumatic stress disorder and ongoing depression following the commission of an offence of dangerous driving occasioning death. The sentencing judge accepted a counsellor's statement that "he has been enduring punishment for this incident for the last two and a half years". It was contended by the Crown in an appeal against the asserted inadequacy of the sentence that "undue weight" had been given to this aspect of the case. The Court was divided as to the result (Priestley JA and Foster AJA favoured dismissal of the appeal with Sperling J dissenting). There was no disagreement, however, as to the relevance to sentence of the effect upon the offender of the death of the victim. In R v Koosmen [2004] NSWCCA 359, Smart AJ, with whom Wood CJ at CL and Hislop J agreed, said (at [32]):

   Dhanhoa is authority for the proposition that the effect of the death in the accident on the offender and self punishment (the self inflicted sense of shame and guilt) were often highly relevant factors, that the weight to be given to these depended on the circumstances and that different judges may give different weight to those factors. Where the facts reveal gross moral culpability judges should be wary of attaching too much weight to considerations of self punishment. Genuine remorse and self punishment do not compensate for or balance out gross moral culpability.

7. It was not contended by the Crown that the sentencing judge was not entitled to have regard to the significant and enduring deleterious effect the consequences of the respondent's offence had had upon him. The complaint was confined to the judge having placed "disproportionate" or "undue" weight upon the respondent's subjective case in determining the overall sentence and the non-parole period.

8. Whether the overall sentence is manifestly inadequate can be assessed by reference to the maximum penalty prescribed by Parliament and to the guideline in Whyte.

9. The learned judge found that the case has some of the characteristics of the typical case identified in Whyte: young offender, of good character, with no prior convictions, death to a single person and genuine remorse. But distinguishing aspects were that there was the death of the respondent's close friend rather than a stranger, the significant injuries sustained by the respondent, and the plea of guilty having more than limited utilitarian value. Although the judge did not say so, these factors would militate in favour of a more benign approach to sentencing.

10. The judge assessed the respondent's moral culpability as being "towards the higher end of the continuum". I take that to mean that while she did not think his moral culpability was high, it was not far below that level. The Crown did not challenge that assessment and neither did the respondent in written submissions. However, upon the hearing of the appeal Mr Game submitted that the judge's approach had contained an element of double counting.

11. To put that submission in context it is worth reiterating that the assessment of moral culpability by the judge involved taking into account three findings. Two of them were "the length of the journey" and "the element of competitive driving or showing off". Those two matters, to my mind, were of marginal significance. The length of the journey was only about a kilometre to the scene of the collision. How far the intended journey was going to be is not apparent. Competitive driving or showing off was based upon him speeding away when his challenge to a race was turned down. It adds little to the speed aspect.

12. The most significant aspect underpinning the finding as to moral culpability was clearly the degree of speed. The respondent accepted that it was between 50 and 55 km/h in excess of the applicable speed limit. But that is the reason why the offence was charged in its aggravated form and exposed the respondent to the higher maximum penalty. The degree of speed was above the threshold to render the respondent liable to the aggravated form of the offence, but not substantially so.

13. The judge noted the rider to the guideline for the typical case described in Whyte where moral culpability is high ("less than three years ... would not generally be appropriate") that:

    In the aggravated version of each offence under s 52A of the Crimes Act 1900, an appropriate increment to reflect the higher maximum penalty, and what will generally be a higher level of moral culpability, is required.

14. The judge did not say anything to suggest that she regarded what was said in Whyte as being in any sense binding or prescriptive. She appears to have applied it in precisely the way Spigelman CJ intended, at [232]:

    The guideline is, to reiterate, a "guide" or a "check". The sentence imposed in a particular case will be determined by the exercise of a broad discretion ...

15. Nevertheless, it appears to me that having taken into account the degree of speed in the assessment of the respondent's moral culpability, her Honour also factored in an additional "increment" that, in effect, took into account the same thing.

16. The starting point before reduction by 20 per cent for the respondent's plea of guilty must have been 3 years 9 months. That is significantly more than the minimum 3 year sentence indicated in the Whyte guideline for the basic offence against s 52A(1) for a case involving a plea of limited utilitarian value. Further, the present case had other features distinguishing it from the "typical case" that were favourable to the respondent. Then there was the additional element of self punishment.

17. It may be expected that most offenders in relation to s 52A offences would experience significant remorse. In Duncan v R [2012] NSWCCA 78 at [25], a bad case of motor manslaughter and dangerous driving occasioning grievous bodily harm, Basten JA said that the absence of such a response might indicate the person would have "such gross insensitivity as to be, in effect, mentally unhinged". But the response in the present case went considerably beyond remorse and extended to the respondent having an enduring psychiatric condition.

18. The sentence of 3 years was lenient and I would characterise it as at the bottom of the range legitimately open to be imposed in the exercise of her Honour's discretion. It was not, in my view, manifestly inadequate.

19. I am persuaded, however, that the non-parole period of 12 months was manifestly inadequate. Even with regard to the deleterious psychiatric and psychological consequences the respondent had encountered, 12 months fails to adequately reflect the objective gravity of the offence, particularly that it involved the unlawful taking of a human life as a consequence of the highly irresponsible and reprehensible conduct of driving a motor vehicle at almost twice the speed limit in a suburban street.

Whether the Court should intervene and re-sentence

1. The Court has a residual discretion as to intervention. The majority observed in Green v The Queen [2011] HCA 49; (2011) 244 CLR 462 at [1]:

   The primary purpose of appeals against sentence by the Attorney-General or Director of Public Prosecutions (Crown appeals) under s 5D of the Criminal Appeal Act 1912 (NSW) is to "lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons". ... The Court of Criminal Appeal of New South Wales, in the exercise of its jurisdiction under s 5D, has a discretion to decline to interfere with a sentence even though the sentence is erroneously lenient. That discretion is sometimes called the "residual discretion".

1. Their Honours later (at [36]) described this primary purpose of laying down principles as "a limiting purpose" and said:

   It does not extend to the general correction of errors made by sentencing judges. It provides a framework within which to assess the significance of factors relevant to the exercise of the discretion.

2. The prospective creation of disparity with an unchallenged sentence imposed on a co-offender was said to be one reason for the exercise of the residual discretion. Other reasons were also identified (at [43]):

   Other circumstances may combine to produce injustice if a Crown appeal is allowed. They include delay in the hearing and determination of the appeal, the imminent or past occurrence of the respondent's release on parole or unconditionally, and the effect of re-sentencing on progress towards the respondent's rehabilitation. They are relevant to the exercise of the residual discretion. The guidance afforded to sentencing judges by allowing the appeal should not come at too high a cost in terms of justice to the individual.

3. There is a particularly compelling reason why the discretion to decline to intervene should be exercised in this case and it concerns the concluding words in the above quote, "justice to the individual". An affidavit by the respondent's solicitor was read at the hearing of the appeal. To that affidavit was annexed a report by Ms Ann-Marie De Santa Brigida, psychologist. Ms De Santa Brigida was provided with a body of material which included the reports that were before the sentencing judge. She assessed the respondent on three occasions in May 2013 over a period of five hours. A number of psychometric tests were administered.

4. The respondent claimed to Ms De Santa Brigida that he was unable to access medication (Amoxil) in custody. The Crown took issue with this and, pursuant to leave granted at the hearing, subsequently provided evidence in the form of an email from the Director of Clinical and Corporate Governance at Justice Health to the effect that the respondent had been administered his medication since he came into custody.

5. But the more significant aspect of Ms De Santa Brigida's initial report was not the subject of any contradiction. The respondent's mental condition has deteriorated since he was sentenced. Testing revealed that there had been an increase in the levels of depression, anxiety and stress to the point where they are each described as being "extremely severe".

6. It is to be recalled that in the report by Dr John Roberts it was indicated that "with optimal treatment and the passage of time" there would be remission of the respondent's symptoms but not completely. The additional material now available indicates not just that this anticipated remission has not yet occurred; but that the severity of symptoms has worsened.

7. I should record that a further report by Ms De Santa Brigida was provided on behalf of the respondent in response to the material filed by the Crown after the hearing. It contests aspects about the respondent receiving his medication and raises issues beyond the scope of the leave that was granted to file further material. It is unnecessary to refer to the detail as none of it conflicts with what I have said in the immediately preceding paragraphs.

8. My conclusion is that, notwithstanding the manifest inadequacy of the non-parole period, doing justice in this particular case requires that the Crown appeal be dismissed.

Order

1. I propose that the Crown appeal be dismissed.

2. R S HULME AJ: I agree with the orders proposed by R A Hulme J and with his Honour's reasons.

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