R v Janceski

[2005] NSWCCA 288

CITATION:	Regina v Janceski [2005] NSWCCA 288
HEARING DATE(S):	20/06/2005
JUDGMENT DATE:	18 August 2005
JUDGMENT OF:	Spigelman CJ at 1; Hunt AJA at 2; Howie J at 41
DECISION:	1. Crown appeal is upheld and sentences are quashed. 2. In lieu, the following sentences are imposed (i) On the first count a total sentence of imprisonment for 4 years commencing on 11 February 2004 and concluding on 10 February 2008 with a non-parole period of 2 years commencing on 11 February 2004 and concluding on 10 February 2006. (ii) On the second count, a total sentence of imprisonment for 4 years commencing on 11 February 2005 and concluding on 10 February 2009 with a non-parole period of 2 years commencing on 11 February 2005 and concluding on 10 February 2007. 3. The respondent will be eligible for release on parole on 10 February 2007. 4. The disqualification of the respondent for 3 years is confirmed.

CATCHWORDS:	Criminal Law - Sentencing - Crown appeal - Sentence imposed after trial for two counts of dangerous driving causing death - car chase through suburban streets - impact caused by driver of other vehicle - concurrent sentences - insufficient weight given to culpability of respondent - appeal allowed - respondent resentenced.
LEGISLATION CITED:	Crimes Act 1900 - ss 51A, 52A Crimes (Sentencing Procedure) Act 1999 - ss 3A, 21A
CASES CITED:	Regina v McMillan [2005] NSWCCA 28 Regina v Whyte (2002) 55 NSWLR 252 Pearce v The Queen (1998) 194 CLR 610 Vogel & Son Pty Ltd v Anderson (1968) 120 CLR 157 Regina v Tadrosse [2005] NSWCCA 145 Regina v Weldon (2002) 136 A Crim R 55 Regina v Price [2004] NSWCCA Regina v Errington [1999] NSWCCA 18 Regina v Whelan [2004] NSWCCA 379 Regina v Jurisic (1998) 45 NSWLR 209 Regina v Musumeci (Court of Criminal Appeal, 30 October 1997, unreported) Regina v Winchester (1992) 58 A Crim R 345 Regina v Salameh (Court of Criminal Appeal, 9 June 1994, unreported) Regina v Holder & Johnston [1983] 2 NSWLR 245 Regina v CJP [2004] NSWCCA 188
PARTIES:	Regina v Darko Janceski
FILE NUMBER(S):	CCA 2004/2625
COUNSEL:	G. Smith SC with D. Arnott - Crown H. Dhanji - Respondent
SOLICITORS:	S. Kavanagh - Crown Murphy's Lawyers Inc - Respondent

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	03/41/0098
LOWER COURT JUDICIAL OFFICER:	J B Phelan DCJ

2004/2625

SPIGELMAN CJ
HUNT AJA
HOWIE J

THURSDAY 18 AUGUST 2005

REGINA v DARKO JANCESKI

Judgment

1 SPIGELMAN CJ: I agree with Hunt AJA.

2 HUNT AJA: The respondent to this Crown appeal, Darko Janceski, was found guilty by Judge J B Phelan (sitting without a jury) on two charges of dangerous driving. The first charge was that he was driving a vehicle in a manner dangerous to other persons when that vehicle was involved in an impact with another vehicle occasioning the death of the driver of that other vehicle. The second charge was in the same terms and related to the death of the passenger in that other vehicle. The offence of dangerous driving is created by s 52A of the Crimes Act 1900, and the maximum sentence for each offence is imprisonment for ten years.

3 The facts found by the judge were that the respondent was driving a motor vehicle with one Steve Petkovski as a passenger, when Petkovski recognised another vehicle driving past as one which had been stolen from a friend. The respondent followed the other vehicle until both vehicles stopped at traffic lights. The respondent and Petkovski left their vehicle, Petkovski carrying a long metal car lock — the type which prevents the steering wheel being turned — and they confronted the occupants of the other vehicle in a threatening manner. That vehicle drove off, and the respondent and his passenger re-entered their vehicle and chased that vehicle.

4 The respondent asked Petkovski to contact the police on his mobile telephone. The operator to whom Petkovski spoke told him that they could not “go through any red lights or anything”, and repeated that warning. This conversation was recorded. Petkovski told the operator that they were travelling at 60-70 kilometres per hour, and the respondent was heard to say “We’re not speeding, we’re just keeping up with them”. The respondent also told Petkovski to tell the police to hurry as the vehicle being chased was going “to make a break soon”. Petkovski said “Yeah, they’re going to stack it soon, I can tell”.

5 The evidence in the trial demonstrates that the two vehicles were travelling over a distance of fifteen kilometres in the middle of the day, in concentrated traffic at high speeds of over a 100 kilometres per hour (estimated at one stage to have reached 150 kilometres per hour), running red lights and narrowly avoiding collisions with other vehicles, and at times being almost out of control. The judge said that both vehicle were being driven dangerously, with a high degree of risk to both their occupants and to other road users.

6 According to the version given by the respondent to the police, and corroborated by the driver of a heavy vehicle behind the respondent’s vehicle, when the two vehicles were travelling side by side in adjoining lanes, the driver of the chased vehicle deliberately moved to his right so that his vehicle came into contact with the respondent’s vehicle, forcing it on to and over the grass median strip, almost colliding with traffic travelling in the other direction. The driver of the chased vehicle then apparently lost control, and that vehicle collided with a power pole, killing the driver and his passenger. The judge referred to the respondent’s subsequent statement to the police as recognising that he may have prevented the collision by not pursuing the other vehicle.

7 An earlier trial with a jury of the charges against the respondent was inconclusive as the jury could not agree. At that trial, the Crown case was that the respondent had deliberately rammed into the rear of the chased vehicle. The Crown case at the second trial was based on the evidence of the driver of the heavy vehicle which supported the version the respondent had given to the police. He had not been called at the first trial.

8 The respondent unsuccessfully relied on the defence afforded by s 52A(8) of the Crimes Act 1900, that the deaths of the two occupants of the chased vehicle were not in any way attributable to the manner in which he was driving his vehicle, in that the impact had been caused by the driver of the chased vehicle deliberately coming into contact with his vehicle. The judge accepted that this action by the driver of the chased vehicle was the primary cause of the impact, but he held that the dangerous driving by both vehicles was also a cause of the impact. In the judgment he gave in the trial, the judge said that the respondent had been put on notice of the risks the other driver was taking and of the danger if the pursuit continued, yet he did not desist. In his remarks on sentence, the judge added that, if the respondent had not been a party to putting the driver of the chased car in fear with the long metal car lock when they both stopped at the red lights early in the piece, and if he had not continued to pursue the vehicle in which the two deceased were travelling in such a dangerous manner, the deaths would not have occurred.

9 The judge noted the submission made on behalf of the respondent that his persistence in the pursuit when he realised that the police had not responded was an act of folly on his part, but that he had not contemplated the actions of the driver of the chased car that led to the impact between them. The submission continued:

Although the offender’s engagement in the pursuit seems to have been initially actuated by a degree of altruism, bolstered and reinforced undoubtedly by the belief that his actions were community spirited, legitimised in a sense because he was in contact with the police via the 000 number and served a lawful object in seeking the recovery of Mr Psaila’s stolen vehicle. It is clear that such actuation [ sic ] became increasing perverse as the pursuit continued.

10 In sentencing the respondent, the judge acknowledged that the maximum sentence in relation to each count was imprisonment for ten years plus a mandatory disqualification from driving for three years. He accepted that the respondent did not at any stage deliberately come into contact with the chased vehicle, and that the respondent’s initial intention in chasing that vehicle was an “altruistic” one of assisting to recover his friend’s vehicle. He remarked that the comment of Petkovski (the passenger in the respondent’s vehicle) to the police on the telephone early in the chase — that he could tell that the driver of the chased vehicle was likely to “stack” it soon — should have brought the danger of continuing the pursuit home to the respondent. The respondent, when interviewed by the police after the accident, recognised that he may have prevented the accident by not persisting in the pursuit. Indeed, when it had soon become apparent to the respondent that the police had not taken steps to take over the chase, the judge said, he should have desisted because of the dangerous manner in which both vehicles were being driven.

11 The judge gave consideration to the fact that the respondent had not pleaded guilty, saying that such an attitude was reasonable in the first trial, when the Crown case placed the blame for the impact solely on the respondent. In this context, the judge said this:

I note s 51A of the Crimes Act dealing with predatory driving and in particular s 51A(1)(b). If proper investigation had taken place almost certainly the first trial would not have resulted in a hung jury and I take this factor into account.

Section 51A(1)(b), so far as it could here be relevant, provides that the driver of a vehicle who, while in pursuit of another vehicle intends by that course of conduct to cause a person in the other vehicle actual bodily harm, is guilty of the offence of predatory driving and liable to imprisonment for five years.

12 The judge rejected the Crown argument that the respondent would have been aware of the relative youth of the driver of the chased vehicle (he was fifteen years old). The judge noted that the driver of that vehicle was under the influence of a prohibited drug at the time of these events, and that he had convictions for possessing implements (apparently those capable of being used to break into vehicles), stealing a motor vehicle, maliciously destroying property, and a number of driving offences.

13 The respondent, who was almost twenty-two years old at the time of these offences, had a criminal record for a break, enter and stealing offence for which he had been given a community service order. He also had a traffic record. He had been driving for a period of approximately four years. During that period he had been convicted of two negligent driving offences (one within a short period of receiving a provisional licence) and he lost that provisional licence because of that conviction. His licence was re-issued three months later, and thereafter he was guilty of seven speeding offences (three of them after these offences), a failure to stop at a stop sign, something identified as a “burnout” offence and a further negligent driving offence after these offences. The judge, who did not refer to all of these convictions, described his record as involving a number of infringements of the law but “not a significantly serious” one.

14 The judge listed the subjective matters on which he particularly relied as the respondent’s satisfactory completion of the community service order for the break, enter and steal offence, his close knit and mutually supportive family and an upbringing “without significant adverse events”. The respondent’s family and his girlfriend had regularly attended court with him. He had completed a panel-beating apprenticeship, but had been involved in the building construction industry for some years. His employer current at the time of the first trial gave evidence of his good character, his punctuality and reliability and his competence, and he said that the respondent’s position would be available to him on his release.

15 The respondent made a statement expressing his very deep regret at the tragedy and his wish that things had not turned out the way they did. He said that almost everyday he relived the events and that he expected to carry a heavy burden to his grave. The judge referred to the respondent’s emotional state when he made that statement, and he accepted that the respondent had expressed appropriate remorse and regret.

16 The probation and parole report records the fact that the respondent began “binge” drinking after the offences occurred in response to persistent flashbacks of the crash, and that he had experienced anxiety as a result. His bail was revoked from the time of the first trial, and he attended weekly drug and alcohol group programs in custody. This report suggested to the judge that the respondent had matured considerably since the offences, and that he would “seem to have been able to entertain some sense of responsibility” for them.

17 The judge made specific reference to the purposes of sentencing identified by s 3A of the Crimes (Sentencing Procedure) Act 1999. He then gave consideration to various aggravating and mitigating factors listed in s 21A of the Crimes (Sentencing Procedure) Act 1999.

(a) He relied on the following factors in aggravation:

(i) Section 21A(2)(d): Record of previous convictions. The judge described these convictions (see par [13] supra ) as “relatively minor” by reference to the sentences imposed.
(ii) Section 21A(2)(g): Substantial emotional harm, loss or damage caused by the offence. No issue has been raised in relation to the judge’s reliance on this factor by either party to the appeal.
(iii) Section 21A(2)(i): Offence committed without regard to public safety. The judge referred to the findings already identified in this judgment as establishing this factor (see par [5] supra ). In its context, this statement goes beyond the mere fact that public safety was put at risk (which is an element of the crime); it refers to the grave extent to which the respondent’s conduct had that effect: cf Regina v McMillan [2005] NSWCCA 28 at [38].
(iv) Section 21A(2)(m): Offence involved multiple victims. The judge noted that this factor in aggravation applied in the present case.
(b) The judge relied on the following factors in mitigation :

(i) Section 21A(3)(h): The respondent’s good prospects of rehabilitation. The judge said that the respondent had taken active steps to rehabilitate himself, particularly by seeking out treatment whilst he has been in custody.
(ii) Section 21A(3)(i): The respondent had shown remorse. The judge accepted that he had shown genuine remorse for his involvement in these events. This was a reference to the statement read by the respondent referred to in par [15] supra.
(iii) Section 21A(3)(k): Plea of guilty. The judge said that, although the respondent had not pleaded guilty, there were compelling reasons as to why he would not have done so.
(iv) Section 21A(3)(l): Degree of pre-trial disclosure by the defence. The judge referred to the “significant” admissions made by the respondent when interviewed by the police within hours of the accident.

18 The judge referred to the more extended list of aggravating features in relation to dangerous driving cases identified in this Court’s guideline judgment in Regina v Whyte (2002) 55 NSWLR 252 at [216]–[217], and noted that those applicable were the death of two people, the fact that others were put at risk, there was a high degree of speed, a lot of erratic driving demonstrated, and a prolonged length of the journey. He noted the absence of alcohol and drugs.

19 Finally, the judge referred to the submission on behalf of the respondent that it was the driver of the chased vehicle whose driving constituted “contumacious offending by way of the manner of his driving” at the time when the two vehicles collided and which the judge had found to be the primary cause of the impact of the chased vehicle with the power pole and the death of the two occupants of that vehicle. He accepted the Crown’s submission that the contribution of the deceased’s driving to his own death was not relevant “in a case such as this”, but described the case as a highly unusual case, and said:

In the circumstances I am inclined to accept the submissions of Mr Farrer that the guideline judgment in Whyte is to some degree applicable and important, particularly from the point of view of stressing to young like-minded men that there will be heavy penalties for those who indulge in racing or pursuit driving in circumstances where even the police have to get consent to indulge in such … behaviour.
The judge held that the case was not within the “most serious” category, and noted that the respondent had not previously served a prison sentence. In relation to each count, the judge imposed a total sentence of imprisonment for two years, he found special circumstances in the respondent’s need for ongoing counselling and supervision, and he fixed a non-parole period of one year. The sentence on each of the two counts was made wholly concurrent with the other. He disqualified the respondent from driving for a period of three years. The judge said that he had imposed concurrent sentences “noting that multiple deaths in the usual type of case would involve additional penalty”.

20 The Crown’s “operative” ground of appeal in this appeal is that the sentences imposed were manifestly inadequate in the light of the objective gravity of the two offences, but it also points to a number of errors made by the judge in his remarks on sentence which may have contributed to that inadequacy.

Wholly concurrent sentences

21 The first error to which the Crown points is that the two sentences are wholly concurrent. There are at least two distinct categories of cases in which problems with concurrency arise. The first is when the offender is being sentenced for discrete offences committed on different occasions. The concurrency of sentences for that category is now governed largely by Pearce v The Queen (1998) 194 CLR 610, which overruled the practice previously common in this State of fixing one of several concurrent sentences to reflect the total criminality of the offender for all the offences. The second category is where the one incident or enterprise gives rise to different charges, usually where there is more than one victim. That category has at least two sub-categories. An example of one of those subcategories is where the offender repeatedly fires a gun, injuring a number of different persons, each as a result of a different action by the offender, although part of the one incident, when it is appropriate to take into account the fact that the offences were substantially contemporaneous and connected: Vogel & Son Pty Ltd v Anderson (1968) 120 CLR 157 at 168. The other sub-category is where the one action by the offender causes a number of people to be injured and where separate charges are laid in relation to each victim. That is the present case.

22 In this second sub-category, it is easy for the sentencing judge to consider the sentencing process as being related to a single action which has created multiple victims, and therefore to fall into the error of imposing wholly concurrent sentences, each of them having been assessed on the basis that the existence of the multiple victims aggravated that sentence. Section 21A(2)(m) of the Crimes (Sentencing Procedure) Act 1999, which identifies the fact that an offence involved multiple victims as an aggravating factor, may (read in isolation) unfortunately lend credence to that approach. That is how the judge approached his task in the present case. Such an approach overlooks the fact that, in a case such as the present, there are two counts, each identifying one of the victims and each requiring a separate sentence. It is completely contrary to principle to aggravate each of those sentences on the basis that each offence resulted in multiple victims: Regina v Tadrosse [2005] NSWCCA 145 at [28]–[29].

23 In a case falling within the second sub-category, separate sentences should usually be fixed which are made partly concurrent and partly cumulative, each such sentence being appropriate to the existence of only one victim and the aggregate of the sentences reflecting the fact that there are multiple victims resulting from the same action by the offender. The extent to which there should be an overlap in the partial accumulation will depend on what is required to represent the totality of the criminality involved in the one act of the offender. This, it seems to me, follows naturally from Pearce at [45]–[48] — and cases such as Regina v Weldon (2002) 136 A Crim R 55 at [46]–[53] and Regina v Price [2004] NSWCCA 186 at [38], [49] — when applying the general principles relating to the aggregation of sentences to this particular sub-category.

24 The respondent does not accept that any error was made by the judge in this case. He points to the judge’s explanation for making the sentences fully concurrent, quoted in par [20] supra, to the effect that this was not the usual type of multiple deaths case involving “additional penalty”. In its context, that statement appears to have been linked by the judge to the fact that he had taken the two deaths into account as a matter of aggravation in fixing each sentence. The respondent has argued that, as the total sentence imposed was sufficiently proportionate to the gravity of the offences taking into account all of the relevant facts and circumstances, an error in making the sentences wholly concurrent (error A) is effectively cancelled out by an error in taking the multiple deaths into account by way of aggravation (error B).

25 I would reject that somewhat facile argument, and in any event I reject the argument that in the present case error A cancelled out the effect of error B. But I do accept that the only issue in this appeal is, in the end, whether the total sentence imposed — even if erroneously reached by the sentencing judge — was manifestly inadequate in the circumstances of this case. The mere demonstration by the Crown of legal error by the sentencing judge in this case does not throw the sentence open for redetermination unless the sentence he imposed is itself objectively manifestly inadequate. That issue must be reserved until the other errors which the Crown asserts have been considered.

Responsibility of other driver

26 The second error to which the Crown points is that the judge took the primary responsibility of the deceased driver for the impact between the two vehicles into account in mitigation of the respondent’s responsibility. It relies on Regina v Errington [1999] NSWCCA 18 at [27]-[28], where this Court said that the fact that the victim, who was a passenger in the offender’s vehicle, had been drinking heavily and travelled apparently willingly with the offender knowing that he was grossly intoxicated and did nothing to dissuade him from driving, was not a matter in mitigation.

27 On the other hand, the respondent relies on Regina v Whelan [2004] NSWCCA 379 at [12] and [27], where this Court accepted that the sentencing judge was entitled to take into account the fact that the other driver made an extraordinary right-hand turn across the oncoming offender’s path in finding that the offender’s inability to control his own vehicle because of his own intoxication gave rise to a “minimal” culpability on his part.

28 Both cases are extreme examples. It is clearly incorrect to take the culpability of the victim into account in mitigation. The judge did not say expressly that he was taking that fact into account in mitigation. After referring to Errington, and stating that he accepted the proposition which it stated, the judge accepted the submission by counsel for the respondent as an answer to it that:

… it might well be argued that insofar as [the deceased driver’s] actions were deliberate, they constituted in themselves a criminal act. This is a far cry from any matter of contributory negligence referred to by the learned Crown prosecutor … . Further, far from the offender having abandoned responsibility for his conduct at least so far as his manner of driving was concerned immediately before the impact, it is submitted that it was [the deceased driver] whose driving constituted contumacious offending by way of a manner of his driving during this particular interval.

The judge said that he was therefore able to treat the guideline judgment in Regina v Whyte (2002) 55 NSWLR 252 as being only “to some degree applicable” to this “highly unusual case”, its importance being limited to the issue of general deterrence. This demonstrates that he did take the culpability of the deceased driver into account, but it does not necessarily suggest that he did so as a matter of mitigation.

29 The culpability of the victim will usually be relevant to the assessment of the seriousness of the offender’s conduct, and therefore to the offender’s culpability. However, I would not accept that the fact that the deceased driver in the present case was the primary cause of the impact would reduce the respondent’s culpability to “minimal”, or indeed would reduce that culpability to any great extent. The judge’s findings to which I have referred in pars [8] and [10] supra would not permit such a reduction. Those findings were that the respondent had put the driver in fear of attack when he and his passenger confronted the occupants of the chased car with the driving lock when it stopped at the red lights; the respondent had been put on notice of the risks that the deceased driver was taking (because of his passenger’s assertion at the time that the chased vehicle was likely to “stack” his car soon) and of the danger if the pursuit continued, yet he did not desist; and, if he had not continued to pursue the vehicle in such a dangerous manner, the deaths would not have occurred.

Degree of moral culpability

30 The third error to which the Crown points, which is related to the last, is that the judge “found” that the respondent’s moral culpability was “not high”. The need to assess the offender’s moral culpability involved in a dangerous driving offence, as the critical component of the objective circumstances of the particular offence, was stressed in Regina v Whyte at [205]. The judge nowhere made such a finding expressly. The Crown relies on:

(a) the judge’s findings against the respondent in relation to his excessive speed, his erratic and aggressive driving, his competitive driving, the length of the journey during which others were exposed to risk and his disregard of the warning given by the police to keep within the traffic regulations as fulfilling five of the nine factors identified in Regina v Jurisic (1998) 45 NSWLR 209 at 231B-D indicating that the offender had abandoned responsibility for his own conduct;

(b) the judge’s findings I have referred to in pars [8] and [10] supra and encapsulated in par [30] supra ; and
(c) the judge’s apparent acceptance of the submissions on behalf of the respondent referred to in pars [9] and [19] supra , and discussed in par [29] supra .

In the light of those findings, I would not be prepared to proceed on the basis of an inferred finding by the judge that the respondent’s moral culpability was “not high”.

31 The respondent has argued that the sentences imposed in this case are consistent with a finding of more than a low level of moral culpability, and that the limitations placed on the use of guideline judgments as indicative only should be respected. He suggests that the unusual nature of this case takes it outside of the influence of the guideline judgments. I would not myself accept that the case is unusual to that extent, and the better approach would be to assume from the judge’s silence on this “crucial” issue of the respondent’s moral culpability that he did not make any finding on the issue, leaving it open to this Court to make its own finding in the event that it is required to redetermine the respondent’s sentence.

Excessive weight given to subjective features

32 There are a number of matters which the judge took into account in mitigation where error has been demonstrated.

33 First, the judge’s acceptance that the respondent’s initial intention in chasing the other vehicle was an “altruistic” one of assisting to recover his friend’s vehicle left up in the air the respondent’s motive in continuing the chase even when it became apparent to him that the police had taken no steps to take over the chase (see par [10] supra). That motive could no longer have been the altruistic one assigned. It is clear beyond doubt that the thrill of the chase took over at that stage.

34 Secondly, the judge’s view that the respondent’s driving record was relatively minor. The details are referred to in par [13] supra, and the judge’s comment in relation to s 21A(2)(d) is referred to in par [17] supra. In the context of these present offences, his driving record can only be regarded as a bad one, and one which was directly relevant to the sentences to be imposed for them as showing a reckless disregard of the traffic rules. The fact that there were three speeding offences and one negligent driving offence after these present offences was relevant to the existence of that disregard. It was also relevant to the extent of the respondent’s remorse and to the prospects of his rehabilitation on which the judge relied in mitigation (see par [17] supra). Rehabilitation is in any event a somewhat subsidiary factor to be considered in dangerous driving cases in which death has been caused: Regina v Musumeci (Court of Criminal Appeal, 30 October 1997, unreported) at 8.

35 Thirdly, the finding by the judge that there were compelling reasons why the respondent had not pleaded guilty, which he took into account in mitigation, was erroneous. Whilst the respondent did have reason to dispute the Crown case at the first trial in which it was alleged that he had deliberately rammed into the chased vehicle, thereby being the primary cause of the death of the two occupants of that vehicle, the judge gave no weight in this context to the fact that the respondent persisted in his plea of not guilty at the second trial, even after the Crown expressly adopted the evidence of the driver of the heavy vehicle which supported the respondent’s version. The reference made by the judge to the availability of a charge of predatory driving (see par [11] supra) appears in its context to indicate that the judge thought that a plea of guilty to that offence might have been sufficient. That offence is not applicable to a death case. The respondent cannot receive greater punishment for pleading not guilty, but neither can he be afforded mitigation under s 21A(3)(k) if he did not plead guilty or otherwise provide some form of utilitarian assistance to the criminal justice system: Whyte at [203]; Regina v Winchester (1992) 58 A Crim R 345 at 350. In the present case, it could not have been appropriate to treat the respondent as being entitled to mitigation under s 21A(3)(k).

36 Fourthly, the judge took into account under s 21A(3)(l) what he said were “significant” admissions made by the respondent when interviewed by the police. He does not indicate what the significance of those admissions was. The whole of the respondent’s case was to put in issue the Crown’s case except for the fact that he was the driver of the vehicle. Section 22A(2) emphasises that the reduction in the sentences as a result of this mitigating factor must not render the penalty imposed one which is disproportionate to the nature and circumstances of the offence.

Manifest inadequacy of sentences imposed

37 In my opinion, the overall sentence of two years with a one year non-parole period was clearly inadequate in the circumstances of this case. The errors made by the judge no doubt contributed to that inadequacy, but it is the extent of that inadequacy which is usually the principle issue in any Crown appeal. In the present case, the extent of the inadequacy is itself indicative of error of principle. It was plainly unjust to the community on whose behalf the Crown acts. The moral culpability of the respondent (as to which the judge made no express finding) was high, for the reasons I have already given, and the departure from what was an appropriate range is so great as to warrant interference.

38 On behalf of the respondent, it was submitted that, as his existing non-parole period had already expired in January this year, it would be prejudicial to him now to extend that period. That is an argument which would have some weight if it were necessary for the respondent to a Crown appeal to be returned into custody. However, the respondent in this appeal was subsequently convicted of another offence, and he has been serving the sentence imposed on him for that other offence since the expiration of that non-parole period. A new trial is being ordered today in relation to that charge for reasons which are being delivered separately. The respondent does not, therefore, have to be returned into custody.

39 Even allowing for the restraint which must be applied in Crown appeals by reason of the double jeopardy involved in having to stand for sentence twice (Regina v Salameh (Court of Criminal Appeal, 9 June 1994, unreported) at 4-5), this is not a case in which the appeal should be rejected in the exercise of this Court’s undoubted residual discretion. The fact that the respondent is twice being put in jeopardy is, nevertheless, relevant to the new sentence to be imposed, which is usually less than what should have been imposed in the first place (Regina v Holder & Johnston [1983] 2 NSWLR 245 at 256); and it is customary to fix the new sentence at the lower end of the range which is applicable to the circumstances of the particular case: Regina v CJP [2004] NSWCCA 188 at [77].

40 I am satisfied that the judge completely misjudged the appropriate sentences which should have been imposed on the respondent, although I would not disturb his finding that there are special circumstances warranting a change in the statutory ratio (see par [20] supra). In my opinion, the appropriate total sentence to be imposed on each of the two charges is imprisonment for four years, with a non-parole period of two years, the second of the two sentences commencing twelve months after the first sentence. Accordingly, I propose that the following orders be made:

1 The Crown appeal against the sentences imposed by Judge JB Phelan on 2 September 2004 is upheld and those sentences are quashed.
2. In lieu thereof, the following sentences are imposed:
(i) On the first count, a total sentence of imprisonment for four years is imposed, commencing on 11 February 2004 and concluding on 10 February 2008, with a non-parole period of two years commencing on 11 February 2004 and concluding on 10 February 2006.
(ii) On the second count, a total sentence of imprisonment for four years is imposed, commencing on 11 February 2005 and concluding on 10 February 2009, with a non-parole period of two years commencing on 11 February 2005 and concluding on 10 February 2007.
3. The respondent will be eligible for release on parole on 10 February 2007.
4. The disqualification of the respondent for three years is confirmed.

41 HOWIE J: I agree with Hunt AJA.

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