R v Howcher

[2004] NSWCCA 179

Reported Decision: 146 A Crim R 371

New South Wales

Court of Criminal Appeal

CITATION:	R v HOWCHER [2004] NSWCCA 179
HEARING DATE(S):	12 December 2003
JUDGMENT DATE:	21 June 2004
JUDGMENT OF:	Grove J at 1; Hulme J at 2; Smart AJ at 54
DECISION:	Leave to appeal granted; Appeal dismissed
PARTIES :	Regina Mohamad HOWCHER
FILE NUMBER(S):	CCA 60278/03
COUNSEL:	Crown: D Frearson Appellant: P Byrne SC
SOLICITORS:	Crown: CK Smith Appellant: W Ball

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	02/21/0279
LOWER COURT JUDICIAL OFFICER :	Sides DCJ

- 20 -

60278/03

GROVE J
HULME J
SMART AJ

Monday, 21 June 2004

R v Mohamad HOWCHER

Judgment

1 GROVE J: I agree with Hulme J.

2 HULME J: On 12 September 2002 the abovenamed Applicant for leave to appeal pleaded guilty to a charge that on 20 May 1996 he drove a motor vehicle in a manner dangerous to another person or persons when it was involved in an impact occasioning death and at the time of the impact the Applicant was driving the vehicle on a road in circumstances of aggravation, namely a speed that exceeded by more than 45 kms per hour the applicable speed limit.

3 On 28 November 2002 Judge Sides sentenced the Applicant to imprisonment for 3 ½ years commencing on 21 November 2002 such term to include a non-parole period of 2 years. His Honour disqualified the Applicant from holding or obtaining a driving licence for 4 years from 28 November 2002.

4 The circumstances of the offence as found by his Honour – and to these there is no challenge – included the following. During the late morning of that day the Applicant was demonstrating the capabilities of a car he had purchased some 3 days before to some friends. After one friend had received such a demonstration, he got out of the car and the deceased became the passenger. The weather was fine. The road surface was dry and in a good state of repair and the visibility was excellent. The vehicle was an RX3 Mazda Rotary Sedan which, as the Applicant knew at the time of his purchase of it had been modified for the purposes of improving its performance. The modifications increased its maximum speed capability and its acceleration capacity. The speed limit in the area where the incident occurred was 60km per hour.

5 His Honour was satisfied to the requisite standard that the vehicle had began to yaw as a result of the Applicant driving the vehicle at a very high speed, somewhere within the range of 115-126kms per hour. His Honour was also satisfied that the vehicle had reached this speed as a result of the Applicant deliberately accelerating at a very rapid rate over a short distance.

6 His Honour was not persuaded that the Applicant lost control of the vehicle when he manoeuvred to overtake a learner driver or that any of three defects – contaminated rear brake linings, cracks and a lack of tread on the rear tyres and alterations to the differential had, either alone or in combination, caused the Mazda to yaw. His Honour also found that at the time of the incident the Applicant was under the influence of cannabis to an extent that his driving ability would have been impaired but his Honour was unable to determine the extent of such impairment. The Applicant had tried, unsuccessfully, to correct the yaw by movement of the steering wheel but the vehicle commenced to rotate about its vertical axis, crossed to the incorrect side of the road, mounted the kerb, crossed over a footpath, collided with a gum tree and split in two. The front portion of the vehicle came to rest about 14 metres west of the gum tree and the rear portion about 10 metres north of that tree.

7 In May 1996 the Applicant was aged 20. Although he had had the benefit of a close and supportive family he had been expelled from two schools and not welcome to return to a third. He left school shortly after the commencement of year 11 and from then until the time of the accident he was mostly unemployed.

8 He had started to abuse cannabis in his early teens and by the age of 18 was injecting heroin daily and binge using cocaine and amphetamines. Although he commenced a methadone program in 1996, he continued to use illicit drugs.

9 In the second half of 1996 in breach of bail he left Australia and went to Lebanon. He continued to abuse illicit drugs there until he entered a detoxification facility in January 1997. There he completed an 8 month residential rehabilitation program which concluded in August 1997. The Applicant asserted, and his Honour seemed to accept, that the Applicant had been free of illegal drugs since January 1997.

10 Thereafter the Applicant lived with his extended family in a village in Lebanon, obtained full employment, and in 1998 he married. His Honour accepted:-

“That the offender has matured considerably since he left this country in 1996. He is no longer an irresponsible individual but rather a person who is making a contribution to the community and seeking to establish a meaningful and productive life for himself. Also, he has been involved in charity work since his return to Australia.”

11 His Honour also accepted that the Applicant had returned to Australia on 22 May 2002 and did so to give himself up. He was in fact arrested on that day.

12 Some reference should be made to the Applicant’s prior record. It included in October 1992 driving in a manner dangerous and while unlicensed and driving an uninsured and unregistered vehicle; in January 1994 driving whilst disqualified and driving a vehicle unregistered and uninsured. In October 1993 the Applicant offended by the unlawful possession of a licence and driving an uninsured and unregistered motor vehicle. In August 1993 he exceeded the speed limit by between 15 and 30kms an hour. Community service he was ordered to perform was carried out so tardily that a further such order was made. In January 1994 he drove an uninsured motor vehicle whilst disqualified. In August 1995 he was convicted of conspiracy to rob and possession of a prohibited weapon having been charged with these offences in December 1994. In respect of the latter offence a 3 year bond was imposed. Obviously this bond was current at the time of the subject offence. At no time had the Applicant held a driving licence and his Honour concluded “that from an early age he has clearly established an attitude of ongoing disobedience to the law. This offence is a further example of that pattern. His prior traffic record demonstrates that this offence is not an isolated and uncharacteristic aberration. This is a relevant matter to consider in assessing his moral culpability - Veen (No 2) v R (1987-88) 164 CLR 465 at 477-478.

13 The grounds of appeal are:-

1. The sentence imposed upon the Applicant was manifestly excessive having regard to the relevant issues in the case for the purposes of sentence.

2. His Honour the learned sentencing judge erred in his application of the principles established by the decision of this Court in MJR (2002) 54 NSWLR 368 to the circumstances of the Applicant’s case.

3. His Honour the learned judge erred in his assessment of the impact of the Applicant’s rehabilitation since the commission of the offence upon the sentence to be imposed: R v Eastway (unreported, CCA NSW 19 April 1992); R v Shore (1992) 66 A Crim R 37.

4. His Honour the learned judge failed to have regard to the voluntary surrender of the Applicant to Australian authorities without the need for extradition proceedings: AB v The Queen (1999) 198 CLR 111.

5. His Honour the learned judge failed to have adequate regard to the fact that the victim of the Applicant’s offence was not a stranger to him: R v Whyte (2002) 55 NSWLR 252 at 284 [204].

14 I find it convenient to deal with these grounds of appeal in reverse order.

Ground 5
His Honour the learned judge failed to have adequate regard to the fact that the victim of the Applicant’s offence was not a stranger to him: R v Whyte (2002) 55 NSWLR 252 at 284 [204].

15 In R v Whyte at [204] the Court included as two of a group of characteristics commonly occurring in offences under Section 52A of the Crimes Act (Dangerous driving, or aggravated dangerous, driving occasioning death or grievous bodily harm) that “the victim is a stranger” and “no or limited injury to the driver or the driver’s intimates.” It was submitted that “the fact the victim is not a stranger is therefore a matter which may justify the extension of a degree of leniency. Where an offender has already suffered the psychological burden of responsibility for the death of a close friend, the need for formal punishment by the Judicial system may be diminished”.

16 Despite the reference in R v Whyte to the victim being a stranger and the extent of injury to the driver or persons known to him there is no discussion in that case of the significance of any such event. Nor as a matter of logic does it follow that the fact the victim is not a stranger of itself justify leniency. Rather is it a case that the offender’s relationship with the victim may be some indication of extra-curial suffering flowing from the occurrence.

17 In fact, all a psychological report from Messrs Duffy Barrier Robilliard tendered on the Applicant’s behalf said in this connection was:-

“Mental Health
Mohamed said he has never been treated for psychiatric illnesses. He did see a psychologist for a period after the accident to help him deal with his distress and guilt feelings.”

18 I can accept that suffering or the psychological impact on an offender of what he has done may properly be taken into account by a sentencing judge. Indeed his Honour said that the Applicant was “entitled to leniency as a consequence of the anguish that he has experienced because of a death of a friend: R v Marlin (unreported, NSWCCA 10 September 1997)” However, nothing was put to the Court and nor does anything appear in his Honour’s remarks, other perhaps than the sentence itself – a matter I deal with below – to indicate that his Honour did not give adequate weight or regard to the fact that the deceased was the Applicant’s friend.

19 This ground fails.

Ground 4
His Honour the learned judge failed to have regard to the voluntary surrender of the Applicant to Australian authorities without the need for extradition proceedings: AB v The Queen (1999) 198 CLR 111

20 His Honour recognised in his remarks on sentence that the Applicant had come back to Australia to give himself up, that the Applicant had said in evidence “I owe my mate something” and that these matters indicated that the offender was remorseful. These remarks concerning remorse were later qualified for reasons it is presently unnecessary to canvass. However the remarks to which I have referred make it clear that his Honour was conscious of the Applicant’s voluntary return. His Honour also observed that the Applicant’s decision after his return to Australia not to plead “not guilty” entitled him to a 10% reduction in the length of his sentence. However, It must be acknowledged that his Honour did not indicate that he was making in the Applicant’s favour any allowance on account of the utilitarian value of his return to Australia without the need for extradition proceedings.

21 In AB v The Queen the High Court held that a sentencing judge had erred in not taking into account in an offender’s favour a willingness and steps he had taken in demonstration thereof to have a number of offences he had disclosed dealt with without the necessity of extradition proceedings being taken in relation to them. In the words of Gummow and Callinan JJ, 2 of the judges in the majority, (at p 132) “the public interest in the waiver by the appellant (of his rights, so far as he was able to insist on extradition proceedings being taken against him) is a relevant matter to which the sentencing Court and the Court of Criminal Appeal should have had regard”. AB had fled overseas when it came to his attention that complaints had been made about his sexual activities with children in his care and that the police were investigating.

22 Despite the fact that in AB v The Queen the decision was by a majority of 3 to 2, there seems to have been no discussion of the significance of the fact that it was the offender’s conduct in fleeing which would have made any extradition proceedings necessary. Perhaps that was because when he went overseas, he was simply exercising a freedom he then had, although even then, I should have thought it impossible to give any weight to his waiver, without at the same time bringing into the scales, his obstruction by fleeing.

23 But be that as it may, I do not regard the decision in AB v The Queen as governing this case. Here any need for extradition proceedings would have been a consequence of the Applicant’s actions in escaping from Australia in breach of his bail conditions. It would be absurd to give him credit for returning to Australia which in effect only restored the situation to what (apart from the delay) it should always have been.

24 This ground fails.

Ground 3
His Honour the learned judge erred in his assessment of the impact of the Applicant’s rehabilitation since the commission of the offence upon the sentence to be imposed: R v Eastway (unreported, CCA NSW 19 April 1992); R v Shore (1992) 66 A Crim R 37.

25 The cases cited in this ground are certainly authority for the proposition that the Applicant’s rehabilitation since the commission of the offence was something to be taken into account. On the other hand it is made clear in Shore (at 47) that where that rehabilitation has occurred during a period when an offender has absconded it cannot be given the same significance as it would otherwise have.

26 In his Honour’s remarks on sentence he observed that “the Offender has made out a strong case on the question of rehabilitation” and “that the Offender has successfully rehabilitated himself” and recognised that he was entitled to have that rehabilitation taken into account. His Honour indeed referred to the case of Eastway mentioned in this ground.

27 However, as his Honour also recognised, rehabilitation was not the only matter that the Court was required to consider in imposing sentence. Again, unless one can conclude from the length of the sentence itself that it is manifestly excessive, there is nothing to show that this ground is made out.

Ground 2
His Honour the learned sentencing judge erred in his application of the principles established by the decision of this Court in MJR (2002) 54 NSWLR 368 to the circumstances of the Applicant’s case.

28 In MJR this court held that where there has been a delay in sentencing, a court should, when imposing sentence, seek to reflect the sentencing practice as at the date of commission of the offence, at least where there has been subsequently a change in that practice to the disadvantage of an offender. It is of a course a condition precedent to the application of any sentencing practice such as that for which the Applicant contends that a practice or particular range of sentences said to have been current at the time of the Applicant’s offence be identified – see R v MJR at [104, 107].

29 When sentencing the Applicant, Judge Sides recognised the principle adopted in MJR and sought to apply it. The Applicant’s submission is that he did not do so correctly. In this regard it was pointed out that in a matter of Slattery (1996) 90 A Crim R 519, which was heard and decided on 19 December 1996, and to which Judge Sides referred, this Court had indicated that the then “existing sentencing patterns are to move in a sharply upward manner”. This remark, and the pattern of low sentences which inspired this Court in R v Jurisic [1998] 45 NSWLR 209 to promulgate a guideline demonstrated, according to the submissions for the Applicant, that at the time of the Applicant’s offence on 20 May 1996, the sentencing practice was lower than reflected in those cases. Counsel further submitted that a comparison between the sentence imposed on the Applicant and that imposed in Slattery itself indicated that his Honour had erred.

30 In that case, on a Crown appeal, this Court substituted for 2 concurrent sentences of 3 years periodic detention, concurrent sentences which included minimum terms of 12 months and additional terms of 2 years. Slattery had faced the same charge as the Applicant here and the circumstance of aggravation, viz. driving so as to exceed the speed limit by over 45 kph, was the same. His speed was 115 kph. Although not identified as a circumstance of aggravation in the charge, also taken into account was the fact that his blood alcohol level was found to be 0.138. Three passengers had been in the car at the time, 2 of whom were killed.

31 The most obvious answer to the Applicant’s contention lies in the fact that he cannot establish the more lenient sentencing regime on which he relies. Indeed I am tempted to simply dispose of this ground upon the basis that counsel has not established such a regime since there was no attempt to provide the Court with any comprehensive account of the sentencing regime in operation at the time. A few cases were referred to but that falls a long way short of what is required before I would be satisfied that the regime at the time of the Applicant’s offence was as was contended.

32 However, a consideration of a few cases demonstrates that the regime was not as suggested. Certainly, habitual leniency seems to have existed in the District Court but in any determination of the regime operative at the time of the Applicant’s offence, it is impossible to simply ignore decisions in this Court made before, and within a short time after, the Applicant’s offence. A consideration of these shows that the relevant regime did not consist simply of the District Court decisions.

33 The first decision of this Court to which I would refer is R v Hallocoglu [1992] 29 NSWLR 67. In that case the offender pleaded guilty to 2 counts of driving in a manner dangerous to the public and occasioning death. The principal component of his offending conduct was that he had been driving in a 60 kph zone at speeds estimated to be 90 to 130 kph, pulled onto his incorrect side of the road to pass 2 slower vehicles, and lost control. His vehicle collided with a telegraph pole and 2 of his 3 passengers were killed. The maximum term of imprisonment then available was 5 years. The sentencing judge imposed fixed terms of imprisonment for 2 years to be served by way of periodic detention.

34 In this Court those sentences were set aside and, after taking into account 5 months of periodic detention already served, a sentence of 14 months, including a minimum term of 10 months, imprisonment substituted. Hunt CJ at CL, with the concurrence of the other members of the bench, said (at p79):-

“Notwithstanding the subjective features to which I have referred, I have no doubt that this was a case in which a full time custodial sentence was required. There was grossly excessive speed over a considerable period of time in this incident, and a contemptuous and reckless disregard by the respondent of his responsibilities. Two people were killed as a result of that conduct. This was pre-eminently a case in which, it can safely be said, a full time custodial sentence was not only warranted, it was also necessary in order to show that other young men in the position of the respondent cannot act in the way he did and receive extraordinarily lenient sentences such as this one.”

35 Obviously, there were differences between the circumstances in that case and those in this. However, enough appears in the combination of the sentence imposed considered in light of the statutory maximum, and the remarks I have quoted to cast doubt on the proposition that the sentence imposed on the Applicant here was outside the sentencing regime then current.

36 Following R v Hallocoglu, in December 1994, there was a change to the statutory provisions. The change was summarised by Hunt CJ at CL in Slattery [1996] 90 A Crim R 519 at 520:-

“The offence of dangerous driving provided by s52A of the Crimes Act 1900 (NSW) replaced the earlier offence of culpable driving. It came into operation on 23 December 1994. The offence of culpable driving had two gradations of seriousness, depending upon whether the culpable driving occasioned grievous bodily harm or death. The offence of dangerous driving has four gradations of seriousness, in that each of those former gradations is now accompanied by an aggravated offence. Circumstances of aggravation include the offender having the prescribed content of alcohol in his blood and driving at a speed which exceeds the applicable speed limit by more than 45kph. The most dramatic difference between the two offences of culpable and dangerous driving, and one which applies in the present case, is that the maximum sentence for aggravated dangerous driving occasioning death is imprisonment for 14 years, compared to five years for culpable driving occasioning death.”

37 Once those changes, particularly the increase in penalty from 5 to 14 years are taken into account with the decision and remarks in R v Hallocoglu, it becomes impossible to contend that the sentence imposed here was outside the sentencing regime then current, and this whether or not the District Court judges then failed to reflect adequately the changes.

38 The next decision to which reference may be made is Savka [1996] 88 A Crim R 393 which was heard and determined on 26 August 1996. The offender had pleaded guilty to 2 counts of aggravated dangerous driving occasioning grievous bodily harm. The offences had occurred on 15 January of, I would infer, 1996. The maximum penalty provided for was 11 years imprisonment. Driving with a blood alcohol level of 0.182 the offender had hit a tree, thereby injuring 2 passengers. In a Crown appeal, this Court set aside concurrent sentences of 300 hours community service and substituted a sentence of imprisonment for 3 years, including a minimum term of 18 months. It is clear that the Court endorsed the approach taken in R v Hallocoglu.

39 Reference should be made again to the decision of this Court in Slattery. The circumstances and sentences are referred to above. It should be mentioned that the offender seems to have had a far more severe psychological reaction to his offending than did the Applicant here. Remarks of Hunt CJ at CL at p525 make it clear that factors in and leading to the appeal, rather than the objective and subjective circumstances of the offence and offender, operated in persuading the Court not to make the 3 year term of the sentence longer.

40 Judge Sides took the view that a strict reading of MJR meant he could not take the decision in Slattery into account and I rather think that this was also the contention of counsel for the Applicant. I do not agree.

41 Slattery’s offence was committed on 29 October 1995 and, having pleaded guilty, he was sentenced on 16 August 1996. The Crown appeal was heard and the sentence increased on 19 December 1996.

42 The Applicant’s offence was committed on 20 May 1996. He failed to appear in the Local Court on 24 September 1996 pursuant to a bail undertaking. It is a fair inference that any sentence on him probably, and any appeal from such a sentence certainly, would not have been determined prior to the decision of this Court in Slattery. According to the submission for the Applicant, the Applicant is to be sentenced in accordance with a practice said to have prevailed in May 1996 but in disregard of the law laid down or as decided on 19 December 1996 and which would presumably have applied to him had he been sentenced, at first instance or on appeal, at that time.

43 Presumably the same should have applied to Mr Slattery if anyone had thought of it: As he was sentenced under the regime upon which the Applicant relies, his sentence should not have been increased by this Court to reflect any perceived error in that regime. The fact that this Court saw fit at the time it did to allow the Crown appeal in Slattery shows that the proposition advanced on behalf of the Applicant is absurd.

44 The change in sentencing pattern referred to in MJR was one which occurred over a period of time - in that case 15-20 years - during which, it would appear, a more severe sentencing regime had evolved – see at [100]. The remarks in that case to the effect that the sentencing regime operating at the time of MJR’s offence should apply must be considered against that fact. While sometimes statutory provisions dealing with when changes are intended to have effect are expressed to operate, as it were instantly on a specified day, their Honours’ references in MJR to the time of the offence cannot sensibly be regarded as excluding the law which, by correction of error or otherwise, would have been applied to the particular offender had he been sentenced in the normal course of events.

45 The decisions in R v Hallocoglu, Savka and Slattery and the change in the statutory provisions to which I have referred satisfy me that the sentencing regime, which includes not only decisions in the District Court but also in this Court, in operation at the time of the Applicant’s offending was not different from that now in operation. In so concluding, I do not forget that in R v Jurisic, the Chief Justice indicated concern at the pattern of sentencing then operating. However, a proper understanding of his Honour’s concern is not that the sentencing regime as referred to in MJR was less than now, but that many sentencing judges were not adhering to the law as laid down by this Court.

46 Nor, when regard is had to the decisions of this Court prior to R v Jurisic, am I persuaded that that case introduced any higher level of sentencing than had applied previously. What it did was to manifest with additional emphasis what this Court had been saying since prior to the Applicant’s offence.

47 This ground fails.

Ground 1
The sentence imposed upon the Applicant was manifestly excessive having regard to the relevant issues in the case for the purposes of sentence

48 I have set out above a summary of the circumstances of the Applicant’s offending and most of the other matters of significance to which his Honour was required to have regard. I should however add a little more on the topic of remorse. Although his Honour said that the Applicant’s return to Australia and his statement that “I owe my mate something” indicated remorse, and accepted also that the Applicant had exhibited some indications of remorse immediately after the accident his Honour also referred, inter alia, to the fact that the Applicant had both at the scene and later told a number of lies concerning his involvement, including that the deceased had been driving and that the vehicle’s speed had been 60-70 kph. In addition, his Honour pointed out that the Applicant had waited for 4½ years after his drug rehabilitation to return from Lebanon and after his return to Australia had remarked “if I wasn’t in this situation, I wouldn’t have spent six years in Lebanon”.

49 His Honour concluded that in light of these matters, “it is difficult to conclude that those expressions (of remorse) are genuine or justify the extension of leniency to him.”

50 His Honour did conclude that the Applicant had successfully rehabilitated himself and went on to say that no significant personal deterrence was called for. However, his Honour characterised the offence as “very much towards the upper end of the range of seriousness of offences of this type and said that the objective criminality was high – views certainly open to his Honour. He pointed out, again correctly, that sight should not be lost of the consequences of the Applicant’s conduct and the Court was required to give significant weight to the need to deter others. His Honour did not refer, as he might well have done, to the fact that conduct and consequences of the nature of those involved in the Applicant’s offending require that some weight be also given to the factor of retribution. As this Court said in R v Gordon (unreported, CCA, 7 February 1994):-

“Retribution, or the taking of vengeance for the injury which was done by the offender, is also an important aspect of sentencing: Regina v Goodrich (1952) 70 WN 42 at 43; Regina v Cuthbert (1967) 86 WN (Pt 1) 272 at 274; Regina v Rushby (at 598). Not only must the community be satisfied that the offender is given his just deserts, it is important as well that the victim, or those who are left behind, also feel that justice has been done.”

51 It may be acknowledged that the sentence imposed in this case was higher than those imposed in any one of R v Hallocoglu, Savka and Slattery. However, all of those cases were Crown appeals and Crown appeals furthermore where this Court was imposing full time custodial sentences in lieu of sentences lesser in the nature of their severity – a matter which argues for greater than usual leniency.

52 In R v Jurisic reference was made (at p230) to 14 cases of the nature of those committed by the Applicant. It was said that “All resulted in imprisonment, with full terms in eight of the fourteen cases being 4 years or less, four at five years and two at six years”. The identity of the 14 cases is not disclosed although it may be inferred they include most of those referred to on the preceding page – two of the ten there referred to involved different offences. A consideration both of those cases and of his Honour’s summary of the 14 persuades me that the sentence imposed on the Applicant was well within the boundaries of the legitimate exercise of his Honour’s sentencing discretion.

53 I would propose that the Court make the following orders:-

(i) Grant leave to appeal.
(ii) Dismiss the appeal.

54 SMART AJ: The circumstances relating to the commission of the offences and the subsequent events are summarised in the reasons for judgment of Hulme J.

55 The sentence imposed by the sentencing judge was a moderate one for the serious criminality revealed in the evidence. On the facts established by the evidence no lesser sentence was warranted in law.

56 I will also deal with the grounds of appeal in reverse order.

Ground 5

57 The judge held that the applicant was entitled to leniency as a consequence of the anguish that he experienced because of the death of a friend. The judge was not required to do more and extend additional leniency simply because the deceased was not a stranger. This ground fails.

Ground 4

58 In his remarks the sentencing judge stated on a number of occasions that the applicant failed to answer his bail. The judge also found, "He came back to Australia to give himself up. He said in evidence that he owed his mate something".

59 The applicant, through his solicitor, let the authorities know prior to his return to Australia that he was coming back. The police were waiting for him on his arrival and he was taken into custody. There is no suggestion in the papers that extradition proceedings had been taken against him or were about to be taken. The applicant paid his own fare to return. It seems that if he had not voluntarily returned to Australia he would never have been dealt with for the offence. However, all his immediate family, except his wife were in Australia and he had been born and brought up in Australia. Lebanon is a war torn country and the applicant is recorded as remarking, "If I wasn't in this situation I wouldn't have spent 6 years in Lebanon".

60 In absconding while on bail the applicant committed an offence for which he can be punished, if charged. However, there is a strong public interest in encouraging absconders who have fled to another country to return and face outstanding charges especially when there are no extradition proceedings. The absconder could have either remained in Lebanon or gone to another country. To provide that encouragement there must be a real expectation that his voluntary return will be taken into account by way of a somewhat more lenient sentence. If there is to be no benefit in returning it is less likely to happen.

61 The contention that in returning the offender has done no more than redress his absconding does not provide any encouragement to an offender to return and face the outstanding charges. If he does not return he is not officially punished and there is no closure for the victim's family. Of course, the extent of any leniency to be extended because of an offender's voluntary return will depend upon the particular facts of the particular case.

62 The judge while mentioning the offender's voluntary return did not state that he had afforded the offender any leniency because of his voluntary return. The voluntary return of an offender is taken into account as a factor which often gives rise to a measure of leniency. In the present case no question of further leniency arises when regard is had to the sentence imposed.

Ground 3

63 The judge accepted that the offender had successfully rehabilitated himself while overseas and took his rehabilitation into account. The judge found that this case did not call for any significant personal deterrence but that significant weight had to be given to the need to deter others. He correctly held that rehabilitation was not the only matter the Court was required to consider.

64 In Thompson (1987) 37 A Crim R 97 Street CJ, with whom the other members of the Court agreed, said:

"Rehabilitation already accomplished will, of course, always be taken into account however it may have arisen but, when it has arisen through self taken liberty by a bail absconder, it will be given less significance than if it has taken place simply in the ordinary passage of time."

65 Rehabilitation was taken into account and the sentence imposed suggests that it was given the correct weight.

Ground 2

66 During the period 1993-1994 the Court was troubled by the low level of sentences being imposed in the District Court for the offences of culpable driving, the elements of which were similar to he elements of the dangerous driving offences which existed in May 1996. That concern was widespread and was reflected by the legislature when in late 1994 it amended s 52A of the Crimes Act and introduced the offences of dangerous driving. That of dangerous driving occasioning death in circumstances of aggravation carried a maximum penalty of 14 years. It took a little time for the effect of the amendments to be fully appreciated by sentencing judges.

67 In May 1996 the sentence now under consideration, applying the correct principles was well within the permissible limits and not excessive. This was not a case for significant leniency. The judge did not err in his application of the principles in MJR (2002) 54 NSWLR 360.

Ground 1

68 The sentence imposed was not excessive

69 The judge correctly held that while the subject offence did not fall into the worst class of case it fell very much towards the upper end of the range of seriousness of offences of this type. I agree with these remarks of the judge.

"This is a most serious example of the offence … The offender deliberately accelerated at a very rapid rate and reached a very high speed, well in excess of forty five kilometres per hour above the prevailing speed limit. This was done in a residential street that was bordered by parkland areas that contained children's playgrounds. … he was intent upon gratifying himself by impressing his friends rather than behaving in a responsible manner that took into account ... the safety of others. He showed a wanton disregard for others."

70 The sentencing judge noted three aggravating features:

(a) The offender was on a bond
(b) He was unlicensed and had never previously been licensed
(c) His manner of driving was not an isolated aberration.

71 The sentencing judge took into account the offender's plea of guilty, his praiseworthy rehabilitation, the anguish he had experienced because of the death of a friend and the correct sentencing practice at the time of the offence. He noted the offender's voluntary return. The offender did not have the benefit of a record entitling him to leniency. The judge was correctly moved to comment:

"His prior motor traffic matters show that from an early age, he had clearly established an attitude of ongoing disobedience to the law."

72

The judge exercised much care and gave much thought to the question of the sentence. The sentence imposed was correct. Indeed, a lesser sentence could not have been imposed having regard to the objective criminality of the offence and taking into account all the subjective features of the offender.

73 I agree with the orders proposed by Hulme J.

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Last Modified: 06/28/2004