R v Jesse Aaron Kelly

[2006] NSWDC 50

CITATION:	R v Jesse Aaron Kelly [2006] NSWDC 50 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	22/9/06, 12/10/06, 13/10/06
JUDGMENT DATE:	13 October 2006
JUDGMENT OF:	Knox SC DCJ
DECISION:	The offender is convicted on each of the two counts in the indictment.; The offender is sentenced as follows:; On count 1 the offender is sentenced to a term of imprisonment of 7 years and 3 months commencing on 9 September 2005 and expiring on 8 December 2012, with a non-parole period of 4 years and 6 months expiring on 8 March 2010.; On count 2 the offender is sentenced to a term of imprisonment of 7 years and 3 months commencing on 9 September 2006 and expiring on 8 December 2013 with a non-parole period of 4 years and 6 months expiring on 8 March 2011.; There is a partial accumulation of 12 months, giving a total effect of 5 years and 6 months non-parole imprisonment. The balance of the term will be 2 years and 9 months.; On the offender’s release to parole I recommend that the authorities impose conditions that:; He be of good behaviour for the period of his parole;; That he comply with all directions of the Probation and Parole Service as to: His residence; His associates; Any courses as to drug and alcohol counselling that may be recommended.; I dismiss the back up charge of negligent driving causing death under s.167(a) of the Criminal Procedure Act 1986 as well as the related charge of failing to stop after an accident.; The offender is convicted of the charge on the s166 certificate of take and drive conveyance without consent (seq 6) and is sentenced to a term of 12 months imprisonment. On the charge of drive while suspended (seq 7) he is sentenced to a term of 12 months imprisonment. The sentence on each count is to be served concurrently with the term to which he has already been sentenced, to date from 9 September 2005.; I impose a period of disqualification from driving for a period of three years to commence from today pursuant to S188(2)(d) of the Road Transport (General) Act 2005.
LEGISLATION CITED:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Criminal Procedure Act 1986 Road Transport (General) Act 2005
CASES CITED:	R v Veen (No 2) (1988) 164 CLR 465 R v McNaughton (2006) NSWCCA 242 R v Whyte [2002] NSWCCA 343 R v Jurisic (1998) 45 NSWLR 209 Elyard v R [2006] NSWCCA 41 R v Gobbett [2006] NSWCCA 46 Pearce v R (1998) 194 CLR 610 R v Cousins [2002] NSWCCA 81 R v Ryan [2003] NSWCCA 202 R v Pevy [2004] NSWCCA 414 R v Price [2004] NSWCCA 186 Richards v R [2006] NSWCCA 262 R v Quarta [2000] NSWCCA 406 R v Skrill [2002] NSWCCA 484 R v Woodward [2001] NSWCCA 90 R v Elrifai [2002] NSWCCA 496
PARTIES:	Regina Jesse Aaron Kelly
FILE NUMBER(S):	06/11/0130
COUNSEL:	For offender: Jankowski For Crown: J. Favretto (22/9/06); D. Stewart (12-13/10/06)
SOLICITORS:	M. Rumore (offender) T. Warr (Crown)

JUDGMENT

Charges

1 The offender has pleaded guilty to two counts of dangerous driving causing death in circumstances of aggravation.

2 The counts are brought pursuant to section 52A(2) of the Crimes Act 1900 for which the maximum penalty is 14 years imprisonment.

3 The circumstances of aggravation relied on in relation to each count were that at the time the offender was driving the vehicle to escape pursuit by a police officer.

Facts

4 The agreed facts were set out in exhibit S2.

5 In brief, the police received information that a car had been stolen on 21 or 22 February 2005 from a home in Oyster Bay. The vehicle involved was a new Holden Commodore sedan being leased from Motors Car Rentals.

6 Intelligence gathered pursuant to a listening device warrant obtained in relation to premises at Macquarie Fields was obtained by the Police.

7 At about 11pm on Tuesday 25 February 2005 two police officers were patrolling in Macquarie Fields. They turned right into Eucalyptus Drive and almost immediately the white Holden Commodore Sedan drove out of a side street to their right followed by an older maroon coloured Ford sedan. The police, who were following in an unmarked police car, were able to establish it was the white Holden Commodore sedan which had been stolen from Oyster Bay.

8 When the cars came to the end of Eucalyptus Drive to turn into Rosewood Drive, Macquarie Fields neither were travelling at any more than the designated speed limit of 50km per hour.

9 The stolen Commodore turned into another part of Eucalyptus Drive and the Police then activated the Police vehicle siren and flashing lights.

10 The stolen Commodore immediately accelerated and police notified the authorities that they had commenced a pursuit. The car continued to accelerate with the police vehicle doing likewise.

11 Approaching the kerb on Eucalyptus Drive, the car began to slip and left tyre marks on the surface about 15 metres past the intersection of Melia Place. The near side wheels collided with a heavy concrete pedestrian refuge island on the left hand northern side of Eucalyptus Drive. A posted traffic sign on the island was struck and the car continued in an easterly direction where the nearside wheels again came into heavy contact with the concrete kerb. At that stage the Commodore was out of control and slammed into a large eucalyptus tree located just behind the concrete kerb. The car was crushed by the tree and partially wrapped around it. There was massive impact damage occasioned to the car as is demonstrated by the tendered photographs.

12 In the front seat of the car was Matthew Robertson. Partially obscured in the near kerbside seat was DR. Both died immediately or shortly thereafter.

13 Police then approached the sedan and saw the driver’s door was open. A person, presumed to be the driver, was running away from the scene. That person ran into the property and scaled the fence. The police then received a message from a Police Officer manning a listening post who told him that a person identified as the offender had just re-entered the house at 33 Cottonwood Crescent. He was heard to be breathing heavily and puffing. A large number of Police and other emergency vehicles then convened on the scene.

14 At about 3:17am on 26 February the offender was heard on a recorded conversation saying to his aunt “I just lost it”.

15 In later conversations the offender said “if I knew how the boys are I would’ve stayed there”.

“I was just talking to ‘em, I just, I’m still thinking about things, like D... (DR) telling me to slow down bro, slow down, in the back of the car, bro and I didn’t know if he had a seat belt on or not bro”

and

“… I thought you were behind us and the Magna turned off and then youse turned off and the Magna stayed behind us, then fucken they put the sirens on just before… Rosewood. I just turned left and right and fucken just took off around euco and I just kept it flat. They were up my arse the whole way and fucken I was going around. I was skipping bro, skipping, skipping and all of a sudden the car stopped steering. It just stopped steering bro.”

16 On 9 August 2005 a DNA swab of the blood stain taken from the driver’s side air bag revealed a DNA profile similar to that of the offender. That DNA occurred in approximately 1 in 2.2 billion individuals in the general population.

17 The offender remained at large and continued to elude police until 9 March 2005 when he gave himself up to police at the Campbelltown Police Station. The offender declined to be electronically interviewed.

18 In the intervening period, other events occurred. I emphasise that the offender is not being sentenced for, or by reference to, any of those matters.

19 The offender was the holder of a provisional license which had been suspended on 26 April 2004 due to a fine default.

20 Photographs were tendered (S5) showing the roadway, the skid marks, and the damage to the Commodore and its position in relation to the tree into which it had crashed.

21 A certificate from Sergeant John Kelly of the NSW Police Crash Investigation Unit was tendered (S6). Sergeant Kelly’s conclusion was that the Commodore speed at the point of recording the yaw mark would have been most likely more than 120 km per hour, not less than 110 km per hour and not more than 140 km per hour. As discussed during the course of submissions, there does not seem to be any evidence in his report to support other than a finding that it is most likely that the speed involved was more likely to be 120 kph. The speed limit in the area was 50 kph.

Subjective circumstances

22 The offender is aged 21, his date of birth being 21 November, 1984. He was 20 at the time of the incident which gave rise to the charges.

23 He was born in Auburn and was an only child. His father was Lebanese and his mother Australian. His father, shortly after the offender’s birth, separated. The offender had had no contact with his father until his early teens. The offender regards his father as not being interested in him, although he, the father, has visited the offender in custody a couple of times.

24 The offender has few qualifications for employment and little education. He has a daughter who he describes as ‘his world’. He attributes to his daughter and his desire to maintain contact with her in the future, the reason why he gave himself up to police.

Police record

25 A summary of the offender’s police record was tendered (S7) which indicated that he had some traffic offences including using an unregistered vehicle, using an unregistered and uninsured motor vehicle, breaking and entering.

26 He was convicted for resisting an officer in the execution of his duty for which he was sentenced to a term of 6 months imprisonment as well as a charge of maliciously destroying property for which he was also sentenced to 2 months imprisonment. The facts which gave rise to those offences occurred in July, 2004, in other words, he had committed that offence prior to the matters for which he is being sentenced.

27 The relevant facts were set out in exhibit S17. In brief, that offence took place when the offender had broken into a construction site where he was apprehended by the police. He attempted to escape from the police, jumped a fence and, when the police closed on him, he attempted to break free and swung at police. He resisted police attempts to handcuff him by struggling and wrestling. He yelled at passers-by and continued to incite people within the street to come to his assistance. He was sentenced to six months imprisonment for that offence. There was also $5000 worth of damage to locks and doors of the affected site and he was sentenced to two months imprisonment for that offence.

28 Both those convictions date from 25 July, 2005 and the term of imprisonment was backdated to commence on 9 March, 2005. That was when the offender was taken into custody in relation to these offences.

Correctional services history

29 Also tendered was a summary of the offender’s corrective services history (S8) indicating the offences referred to above.

30 There are 3 matters said to be punishment details while he was within the correctional system in June and November of 2005 relating to the unauthorised possession of drug implements, failing a urine test, and receiving an unauthorised article. The offender is to continue on an alcohol and drug dependency course.

31 That evidence only seems to me to be relevant in relation to the circumstances of his on-going incarceration and to some limited extent in relation to his prospects for rehabilitation.

Psychologist’s report

32 A report from Messrs Duffy Barrier Robilliard, Psychologist, was tendered (S11). That report dated 18 September, 2006 indicated the offender has had two daughters, Sasha and Holly.

33 The report also provided information about his family background and insight into the circumstances of his formative years. The offender identifies his step-father, Shane Kelly, and Shane’s relatives as his own extended family.

34 The offender said that his mother was a chronic gambler who could lose the entire salary of the offender’s step-father in a day. She was also a drug user and both parental figures were heavy drinkers.

Adolescent background and education

35 The offender said that he seldom went to school as he never had appropriate clothes or equipment and there was no food for lunch. By early adolescence he had been expelled from the public school system and placed in a special school for behaviour disorder children.

36 He then went to live with his maternal grandmother at Macquarie Fields and attended the local school. He lived there with his grandmother and a person called ‘Pop’ who was apparently his grandmother’s partner. The offender said that his mother did not know who was her birth father.

37 The offender subsequently went to the Macquarie Fields High School in year 7. He was then expelled and sent to Campbell House, a special school for behaviour disorder children in Campbelltown. He said he was seldom there and smoked a lot of pot. From time to time he slept at his uncle’s place. At that time he said he learnt how to commit break and enters.

38 All the evidence as to his background explains, but does not excuse, his attitudes to the police and to the law generally.

Relationships

39 Subsequently, his mother separated from Mr Kelly and the offender’s mother started to live alone in a housing commission accommodation at Ingleburn.

40 At age 14 the offender formed a relationship with a girl called Melissa who is 12 months younger than he was. Melissa apparently lived two doors away. That relationship was inherently unstable and emotionally intense. Melissa fell pregnant and they moved into a caravan at the back of her parent’s home. Their daughter Sasha was born when Jesse was 17 and the second daughter, Holly, was born 12 months later. That daughter died within 48 hours of her birth. The offender was devastated and the young couple split up about two months later. There was a subsequent brief and volatile reconciliation which lasted a couple of months. Apparently Melissa’s mother, Ms Bailey, brings Sasha to visit the offender in custody. Sasha lives with Ms Bailey.

41 Evidence was also given by Ms Jeanette Bailey the mother of his former partner, Melissa, and the grandmother of his child, Sasha. Ms Bailey said that the offender could stay with her after his release from custody. She said that she would assist him in attempting to find work and in his relationship with Sasha. She said that she was aware of his drug usage. It was unclear to me what steps or strategies would be adopted to deal with any recurrence of that drug usage while the offender was living with or near her.

42 At the time of the offence the offender was occupying rented accommodation in Macquarie Fields - which he went to immediately after the crash.

Deceased victims

43 The two young men who were killed in the accident, namely Matthew Robinson (aged 19) and DR (aged 17) had also moved into that accommodation. Matthew Robinson had been the offender’s closest friend from early teens.

Offender’s attitude towards two victims

44 The report makes reference to the fact that the offender is “deeply distressed about the death of his two friends”. The author of the report said that the offender’s expressions of emotion about the death of his friends were significant and ongoing. The offender has said that “he cried a lot for his two friends, it’s the worst feeling you can ever have”.

45 He still has photographs of the deceased, Matthew, on the walls of his cell and has apparently tried to make contact with the families of each of the deceased boys, in one case with limited success and with some implicit recriminations. D’s father was at court during the sentencing proceedings.

Associates and environment at time of incident

46 The offender and his friends had been living at the premises in Macquarie Fields for about 6 months prior to the accident. They were apparently known to the local Police as the ‘Kelly gang’. The offender recalled that “people who did B & E’s hung out at my house”. Apparently other people moved into the premises at different times prior to the collision. The offender said that in the week before the crash “the boys” had stolen a car and kept it nearby.

47 The offender said that the house he was then occupying was the “local party house” and that he and his friends were all on the dole, drinking alcohol, and smoking cannabis as part of daily household activities. He said that the “Police raided the premises three times during that 6 month period and they used to pull up outside the house in the early hours of the morning and put on the flashing lights”. He said that he felt that his relationship with the Police at that point was “like a game”.

48 I interpolate to say that, if it was a game, it was a particularly deadly one for his two passengers and potentially himself and members of the community as well as the police.

49 He said that on the night he panicked because he was disqualified, he did not want to be caught by the police and on impulse attempted to accelerate away. He said the car did not seem to steer accurately and he quickly lost control.

Flight from the scene

50 A letter from the offender to the court was tendered (S 12). The letter confirms the matters set out in the psychologist’s report which I have made earlier reference. The letter also makes specific reference to the fact that he did not know that the two young men who were the passengers in his car were even hurt and that had he known that he would not have run from the scene. He said that he ran away from the car because he was panicking, expecting his friends to be close behind him. He said he had no idea his friends had been fatally injured and would not have left the scene had he realised that fact. It seems to me to be clear that he would have known soon afterwards that they were killed.

51 The report also notes that the offender did not want to implicate or blame anyone for his direction in life or his conduct. He admitted that he was avoiding any attempts to control or discipline him by his early or mid adolescence.

52 He said that he faced “an extraordinary level of pressure to shift blame from himself to the Police which he resisted”.

53 The report states that the offender did not express resentment, hostility, or anger towards anyone and he made deep and heartfelt statements of empathy for the victims family and his own. He is said to have “accepted total responsibility for the offences and will not blame or implicate anyone or anything from his past nor the circumstances of the incident itself”.

54 He has said that he no longer has friends in Macquarie Fields and has no intention of ever returning there. He intends to move near the south coast to be near his mother-in-law, Ms Bailey, who he identifies as the most positive and sensible influence in his life.

55 The offender said he is anxious to avoid media attention which he said will be stressful and very unwelcome. The report notes that he will need support from the Probation and Parole Service. The report also notes that relocating away from Sydney is therefore a sensible plan on his part – a sentiment with which I completely concur.

Drug history

56 The offender said that he recalled taking dexamphetamines from about the age of 13 to 15 years. Although he has drunk heavily at times, the psychologist’s report quotes him as saying that he “never drank as much as mum and dad did”.

57 He also smoked cannabis from the age of 13 which he did because “his family thought it slowed him down”. The offender said that he often spent $50 a day on cannabis because some members of his family would give him money “to stop him stealing”.

58 The offender stated, and the certificates tendered support, that he had done the Young Offenders and Anger Management courses as well as a drug and alcohol course while in custody. He has also attempted to continue his schooling to at least Year 10 level. He says that he has done all the courses available to him.

59 The offender also gave evidence that all of his offences had been in some way connected to his drug usage. However, there is no evidence of drug usage at the time of this offence.

60 The offender’s record while in custody shows offences within the correctional system of possessing a drug implement (June, 2005) and failing a urine test (also June, 2005). As will be referred to later, he has admitted using drugs in jail on once occasion.

Events within the correctional system

61 The offender appeared before me on the first day of the sentencing proceedings (22 September, 2006) in the middle of the general sentencing list allocated to me that day. Because of time pressures associated with the list, it was agreed that only evidence in chief would be taken from the offender. He gave evidence of having been assaulted by two Corrective Service Officers on 20 September, 2006 while in custody.

62 The matter was then stood over to today for the Crown to refer the matter on to the Correctional Service Authorities.

63 When I queried the relevance of the evidence, it was jointly submitted that the only relevance was to my consideration of the nature of the circumstances under which the offender would serve his sentence.

Further evidence

64 The offender gave further evidence yesterday in relation to events after his last court appearance. His evidence was to the effect that there was a search of the cell of the offender and another inmate at the Parklea Correctional Centre. The officers found a piece of foil which contained buphnemorphine – a methadone alternative. I was informed that it was a prescribed or prohibited drug.

65 The Crown has not sought to adduce any evidence on this matter or tender any other material – although the offender’s cross-examination was clearly based on an incident report prepared by the relevant Correctional authorities and personnel who were present at the time.

66 The offender’s custodial history makes it clear that the offender has come to adverse attention while in custody in relation to drug consumption – a relevant matter when one comes to consider what he says were the various correctional service officers’ comments when entering his cell, not simply the fact that the offender came from Macquarie Fields. It seems implicit in the offender’s evidence that the motivation for what he described as the attacks on him was his connection with Macquarie Fields.

67 The psychologist’s report (S11) which was prepared following a five hour interview on 14 September, 2006 at the Parklea Correctional Centre (where these events are said to have happened some six or seven days afterwards) also reports the offender has having said “coming to gaol has saved my life”. The offender gave evidence that he had been in Parklea since April, 2006.

Finding on events in custody

68 It was clear that the offender had bruising to his eyes consistent with having been struck or having struck something. There were no other injuries consistent with his accounts of having been slapped to the face 20 times or more or punched in the ribs.

69 In the circumstances where I am left with that evidence, the account does give rise to some concern. However, the offender has the remedies and procedures open to any inmate within the correctional system.

70 It is clear that the offender has come to the attention of the correctional authorities. Whether that has been in response to the circumstances surrounding this incident, as was submitted on his behalf, or the fact that he has had convictions within the corrective services system for drug related matters in the preceding months, I do not find it necessary to determine.

71 On the basis of the evidence available to me the only finding that I can, and need, to make is that the offender will continue to serve his sentence in protection and that it is likely to be of some hardship to him. But the evidence does not persuade me that that incarceration will be any more difficult than for any other offender who has the record of offences he has attracted while he has been in custody and who is on protection. I will take that matter into account in my assessment of what special circumstances there are and the adjustment to the statutory ratio should be made.

Consideration of matters of aggravation

72 This case raises some for consideration different matters which may be considered as matters of aggravation in the different senses that term is used in section 21A of the Crimes (Sentencing Procedure)Act, 1999, the factors referred to in the relevant guideline judgments of Whyte and Jurisic, as well as the fact that the offender is being sentenced in relation to an offence which as an aggravated offence under section 52A (2) of the Crimes Act. It is important to keep those separate matters in mind when considering the evidence and the final exercise of the sentencing discretion, particularly to ensure that there is no degree of double counting of factors or the evidence which would result in an inappropriate sentence. There is also the related need to ensure that matters which are an inherent part of the elements of the offences are not taken into account as a potential double-counting.

Aggravating factors – s21A Crimes (Sentencing Procedure) Act 1999

73 Here the offender has a record of prior convictions. They include a conviction for resisting an officer in the execution of his duty and a count of malicious damage. The facts which gave rise to that conviction pre-dated this offence occurring on 3 July, 2004. The conviction post-dated the offence. The offender was on a section 9 bond at the time of the offence which gives rise to these sentencing proceedings arising out of another break and enter offence at Wollongong. That was imposed on 7 April, 2004.

74 His driving record (S16) shows a number of traffic matters in 2003 and 2004. Significantly his driving licence had been suspended at the time of the offence and he had taken no steps to have it reinstated.

75 In my view the matters set out in the record, while significant in terms of the offender’s reaction when chased by and apprehended by police, are not of a sufficiently serious nature to be warranted as an aggravating factor as that is contemplated by the principles established by the High Court in R v Veen (No 2) (1988) 164 CLR 465 at 476 FF.

76 However, they are of some relevance when considering the likelihood for rehabilitation of this offender and when assessing the way the principles of personal deterrence should be reflected in the sentence – R v McNaughton (2006) NSWCCA 242 at 30-38.

77 What is more serious and a relevant matter of aggravation is that the offence was committed while the offender was on bail for one offence and on conditional liberty in relation to another offence. He had been the subject of a 12 months bond imposed pursuant to s.9 of the Act on 7 April 2004.

Guideline Judgments

78 In R v Whyte [2002] NSWCCA 343, at [216] the Court of Criminal Appeal referred to the earlier guideline judgment of R v Jurisic (1998) 45 NSWLR 209 and listed 9 factors which were relevant namely:

(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 or aggressive 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.

79 To that list was added the particulars of the degree of sleep deprivation (there is no evidence that that particular is relevant here given the collision occurred at 11 pm at night) and of failing to stop.

Failure to stop

80 The Crown has sought that the related charge of failing to stop after accident be dismissed, those proceedings having been discontinued.

81 The facts on the failing to stop charge are to be taken into account as an aggravating factor pursuant to Whyte.

82 That particular is relevant given that the offender ran from the scene of the collision, which, even if he did not know of the deaths of his friends and companions, was clearly a scene of great destruction. The photographs tendered show the car totally destroyed by the force of its violent contact with the large tree. The offender apparently came back at some time shortly thereafter and saw the car covered by a tarpaulin. His letter to the Court (S11) said that ‘…if I had known that Mathew and D was even hurt I would never had ran’ (sic).

83 If he did not know of the deaths, in my view, he must have known that they were at the very least immobilised very shortly thereafter – certainly at least by the time he realised they were not with him. He certainly did not bring their plight, which he had caused, to anyone’s attention nor render any assistance to his travelling companions, who were also his housemates, one of whom was a person he described as his best friend. His clear priority, albeit from the perspective of a young man who had had trouble with the police and who was panicking, was his own escape and to avoid apprehension.

Speed and driving

84 The facts establish that not only were two young men killed, but both they and the offender were put at considerable risk by the offender’s driving. The degree of speed was significant - being somewhere between 110 and 140 km per hour, most likely 120 kph, in an area where the speed limit was 50 Kph. The length of the journey over which others were exposed to risk would seem to be of the order of 600 – 700 metres.

Locality

85 What occurred took place in the early hours of the morning in a suburban residential street in western Sydney. Had the vehicle not been brought to a stop in the tragic circumstances it was by a very large tree, the photographs indicate there was a possibility that that vehicle, out of control and at the speed it was travelling, may have collided with other vehicles in the area, or the front fences, or indeed, homes in the area.

86 Fortunately, the events took place in the early hours of the morning when it could be anticipated that there would not be other vehicles nor pedestrians on the road. However, circumstances of public safety were obviously not uppermost in the offender’s mind. Having regard to the comments made by the Court of Criminal Appeal in Elyard v R [2006] NSWCCA 41 per Basten JA at [12] and Howie J at [40], I specify that I do not regard the relevant evidence as an aggravating factor showing a disregard of public safety within the meaning of section 21A of the Crimes (Sentencing Procedure) Act, 1999. In terms of the number of people put at risk, those affected were the three people in the car.

Element of aggravated charge: escape police pursuit

87 There was no evidence of intoxication or substance abuse. While the driving was erratic, it did not involve competitive driving or showing off. It seems to have been brought about by virtue of the offender’s desire to shake off the police as soon as he heard the siren. He knew the car was stolen. He knew he was suspended from driving.

88 Quite clearly, and seriously, the offender was escaping police pursuit which is the element of aggravation relied on by the Crown in relation to each count.

Ignoring of warnings

89 The intercepted telephone conversation indicates that at least one of the passengers, D, was telling him to slow down prior to the collision.

90 In my view there could have been no mistaking the police presence given the siren and contents of the intercepted telephone conversation.

Abandonment of responsibility

91 In my view, the facts establish that the offender abandoned responsibility for his driving once he decided to keep it “flat” – presumably referring to the accelerator of the car – immediately after the police activated the siren and flashing lights. The agreed facts refer to the fact that the car continued to accelerate with the police doing likewise. It slipped and went out of control, colliding near a pedestrian refuge island.

92 This attitude and behaviour must be looked at in the light of the fact that it was a stolen and relatively powerful car with which the offender could not have been familiar.

Moral culpability

93 The Court of Criminal Appeal in Whyte (per Spigelman CJ at [205]) referred to the fact that sentencing judges must give close attention to the degree of moral culpability involved, that being a critical component of the objective circumstances of the offence. At [228] it was said that

“In the above list of aggravating factors, items (iii)-(xi) are frequently recurring elements which directly impinge on the moral culpability of the offender at the time of the offence. Individually, but more often in some combination, they may indicate that the moral culpability is high. One way of expressing such a conclusion is to ask whether the combination of circumstances are such that it can be said that the offender has abandoned responsibility for his or her own conduct. That is not the only way of expressing such a conclusion’.

94 Here I regard the combination of factors as I have outlined them above as establishing a high degree of moral culpability - even taking into account the offender’s youth and background.

95 These matters must be looked at in the light of the fact that they are aggravated versions of the offences. As was said in Whyte (at [231]), there must be an appropriate increment to reflect the higher maximum penalty. It was also said that ‘…other factors, such as the number of victims, will also require an appropriate increment’.

96 Given the number of victims namely, the two deceased, it is in my view appropriate that there be a partial accumulation in the sentences to reflect the fact that two young men lost their lives.

Multiple counts

97 The Crown has relied on the decision of the Court of Criminal Appeal in R v Gobbett [2006] NSWCCA 46 and in particular at para. 18 to the effect that:

“Where a court is sentencing for multiple offences arising out of a single criminal act such as a bout of driving as here, it is erroneous to impose concurrent sentences each aggravated by consideration of the multiplicity of consequences. The proper approach is to fix a sentence for each offender without regard to the discrete effects of other offences, and then decide to what extent if any there should be an accumulation in order to produce an overall result that reflects the totality of criminality – Pearce v R (1998) 194 CLR 610.

98 Here the Crown submits that there should be at least a partial accumulation of sentences. In my view, that is correct.

Mitigating Factors

Plea of guilty

99 The offender pleaded guilty on 23 June, 2006.

100 The proceedings went through a contested committal on 31 January, 2006 where witnesses were called as to the identification of the driver.

101 The offender was originally charged with two counts of manslaughter. He

was committed for trial to the Sydney District Court on 16 February, 2006 and thereafter there were negotiations. There was ultimately an indication from the offender’s legal representative by letter dated 7 June 2006 that the offender would plead guilty to the charges which are now before the court.

Utilitarian value

102 In the circumstances this does not appear to me to be a plea at the earliest opportunity sufficient to attract the maximum utilitarian discount. The Crown submits the utilitarian discount of no more than 15% is appropriate.

103 I find that there was limited utilitarian value in the plea to the criminal justice system both in terms of the Police, the Crown, and for that matter the legal aid authorities, given that the offender went through the contested committal proceedings requiring witnesses to be called. As has been noted, the offender’s DNA was found on the crashed vehicle

104 Given those factors, the circumstances which surrounded this matter and the need for the matter to be ventilated within the court system at an early stage, I am prepared to adopt that figure of 15 % as an appropriate discount – although I consider that a discount of that order has an element of generosity to the offender.

Remorse

105 The offender has expressed his remorse in his letter to the court as well as his evidence. The plea is also evidence in itself of remorse. However, I do not regard those expressions as warranting any additional or different discount to the discount I have already referred to.

Accumulation/concurrence

106 Here the two deaths which are the subject of each of the two counts occurred on the one day and each arose from the same incident and the same act of criminality. Nevertheless there were two deaths. It is appropriate given the authorities and the matters that I have referred to earlier that there should be some partial accumulation of the sentences to mark this fact.

107 In my view the appropriate period of partial accumulation of the sentences in relation to the two offences should be one of 12 months imprisonment. A similar approach was taken in R v Price [2004] NSWCCA 186 per Hulme J at [8].

Analysis of authorities

108 Counsel referred me to the following authorities:

R v Cousins [2002] NSWCCA 81
R v Ryan [2003] NSWCCA 202
R v Pevy [2004] NSWCCA 414
R v Price [2004] NSWCCA 186
Elyard v R [2006] NSWCCA 43
Richards v R [2006] NSWCCA 262
Ian Gobbett v R [2006] NSWCCA 46

as well as the Public Defenders website and the relevant sentencing tables. I have considered all those authorities and details. It needs to be remembered that each authority must be looked at in terms not only of the facts and the different subjective features but also the section under which the relevant charge was brought, and, as here, whether the charge is an aggravated charge with different maximum penalties. It should also be noted that some of those authorities concerned sentences which were imposed in the context of a Crown appeal.

109 I regard the decisions of Pevy and Cousins to be of particular relevance.

110 In R v Pevy [2004] NSWCCA 414, Pevy received a sentence of 5 years imprisonment with a non-parole period of 3 years and 9 months. On appeal, the non-parole period was varied to 3 years and 3 months imprisonment. There the appellant accelerated from Police who were seeking to administer a random breath test. He was driving at a speed of between 100 and 110 km per hour, and was intoxicated at the time of the offence. His car collided with another, killing the driver. The sentencing Judge found that the offender (who had an alcohol problem) was remorseful, and there were good prospects of rehabilitation. His Honour did not find special circumstances.

111 In the Court of Criminal Appeal, Santow JA, on the issue of special circumstances stated, at [27]:

In saying this, I am not however to be understood as accepting the submissions of the applicant, subsequently not pressed, that the head sentence was in any way outside the range of an appropriate sentence when regard is had to comparable cases and their respective differences such as R v Quarta [2000] NSWCCA 406, R v Skrill [2002] NSWCCA 484, R v Woodward [2001] NSWCCA 90 and R v Elrifai [2002] NSWCCA 496. In particular Skrill involved speed and alcohol but no police pursuit, Quarta and Elrifai involved speed and a police pursuit but no alcohol, and Woodward involved speed and alcohol but no police pursuit. Here, speed, alcohol and police pursuit were all involved.

112 In R v Cousins [2002] NSWCCA 81, the appellant, who was driving in a stolen car, was involved in a high speed police chase. He was travelling at speeds well over 100 km per hour through suburban streets in the middle of the day. The duration of the chase went for some 14 minutes, and ended when the appellant collided at an intersection after running a red light. A passenger was killed, and his girlfriend was seriously injured.

113 The sentencing judge found that the gravity of the offence was extremely high, and that prospects of rehabilitation were poor.

114 There were a number of aggravating factors, including the fact that the offender was: driving whilst disqualified; using a stolen vehicle; driving at an excessive speed over a long period (erratic and dangerous driving); had a long criminal history; there were multiple victims; there was recklessness involving a serious risk to others.

115 The appellant had an appalling record including driving offences, and had spent 7 years of his adult life in prison.

116 The appellant pleaded guilty and for the offence of dangerous driving causing death was sentenced to a period of 7 years imprisonment, with a non-parole period of 4 years. For the offence of dangerous driving causing grievous bodily harm, he was sentenced to a 4 year fixed term, to be served concurrently.

117 The Crown appealed the sentence and the Court of Criminal Appeal allowed the appeal and the sentence was quashed. The Court did not find special circumstances justifying a variation between the head sentence and the non-parole period. The sentence for the offence of dangerous driving causing death was then varied to one of 8 years imprisonment, with a non-parole period of 6 years.

118 Here this offender does not have those subjective features – especially the record of that offender. That offender was 37. This offender was aged 20 at the time of the offence. There were no special circumstances found in that case. There was also one death involved, and one other person being injured.

119 I also think that there is a difference in the subjective features of this offender compared to the offender in that case which will be reflected, to some extent, in my finding of special circumstances. In terms of the objective circumstances of the offence, some of the factors present in that case, such as the length and circumstances of the driving, were more serious than in this case.

Special Circumstances

120 The offender has shown a degree of insight into the fact that he was manipulated by other people in the events subsequent to the actual incident. That would suggest that there are some, though in my view limited, prospects of rehabilitation. That fact, his age (now 21), his background, and the fact that he and the fact that this will be his first time in custody for an extended period, and that is likely to be in circumstances where he is on protection, in my view constitute special circumstances.

121 The offender’s plans for employment given his intention to relocate to the South Coast of NSW seem to be poorly thought through – for example, in relation to the suggestion of employment from his father who is located in Sydney and who he has had little contact. Ms Bailey, though undoubtedly well-motivated, was also available to the offender at the time of the offence and his life prior to the offence. She obviously had little impact on him at that time. All the other people who are said to be his supporters did not appear to be able to do much to keep him out of the pattern of serious misbehaviour that he had got into and which ultimately led to the deaths which occurred which had such an impact in this community.

122 I see little in the evidence and the offender’s background which would warrant any real measure of confidence that he will be able to desist from his behaviour patterns to date. Having considered the nature of the special circumstances I have found and all the evidence, including the evidence in the psychologist’s report as to the prospects of rehabilitation which I have reviewed against my own assessment of the offender’s evidence to me and that of Ms Bailey, I find that there are limited prospects for rehabilitation. I do not find that those circumstances warrant other than a slight adjustment to the normal statutory ratio.

123 The appropriate ratio which the non-parole period should bear to the parole period under supervision should be reduced from the statutory ratio to one of about two thirds.

The offender’s future

124 In the offender’s favour is his apparent determination to ultimately get out of the geographical environment where the events occurred and where he considers that he has been manipulated and let down. Given the matters set out both in the pre-sentence report and the psychologist’s report, I can only hope that he adheres to that intention and particularly to avoid people who would manipulate him and caste him into a particular light for their own purposes.

125 The evidence establishes that the offender would benefit from a period on parole being subject to supervision of longer than normal. It would seem important to me that, as the offender has himself suggested, that take place in an area away from Macquarie Fields.

Consideration

126 In my view, the facts of this offence and taking into account all the subjective factors of the appellant as well as the principles of sentencing which I am required to consider pursuant to s. 3A of the Crimes (Sentencing Procedure) Act, the relevant factors referred to in section 21A of the Act, the matters referred to in Whyte mean that a sentence of full time custody is the only appropriate sentence.

127 The non-parole period for each of the offences should be 4 and 1/2 years imprisonment.

128 I have had regard to the guideline judgment as a guide or check given my findings as to the combination of the factors I have outlined and the fact that these are aggravated offences. I have also had regard to the statistics published by the Judicial Commission (S10). In my view, having reviewed those statistics with all the qualifications which should be remembered when broad classifications of statistics are considered without amplification of the facts of the particular offences or the subjective features of any of the offenders, the sentence which I have determined is within the range of an appropriate sentencing discretion given the matters I have outlined.

Application of discounts and variation of ratio

129 From the point of view of transparency of sentencing, I indicate my view that, had this matter gone to trial, an appropriate total head sentence would have been of the order of a around 9 years and 8 months imprisonment, to which the discount of 15% when applied would have led to a sentence of about 8 years and 3 months imprisonment.

130 My finding of special circumstances would mean that the ratio that the total non-parole period bears to the total head sentence would be two-thirds, or, rounded down to the offender’s benefit, 5 years and 6 months.

Backdating of sentence

131 On 25 July 2005 the offender was sentenced to 6 months imprisonment to date from 9 March 2005 and expired on 8 September 2005 on unrelated charges. The offender has therefore been in custody solely referrable to these offences from 9 September 2005.

132 The offender submits, and the Crown agrees, and I think appropriately so, that the sentence should be backdated to commence from that date.

Sentence

133 The offender is convicted on each of the two counts in the indictment.

134 The offender is sentenced as follows:

On count 1 the offender is sentenced to a term of imprisonment of 7 years and 3 months commencing on 9 September 2005 and expiring on 8 December 2012 with a non-parole period of 4 years and 6 months expiring on 8 March 2010.

On count 2 the offender is sentenced to a term of imprisonment of 7 years and 3 months commencing on 9 September 2006 and expiring on 8 December 2013 with a non-parole period of 4 years and 6 months expiring on 8 March 2011.

There is a partial accumulation of 12 months, giving a total effect of 5 years and 6 months non-parole imprisonment. The balance of the term will be 2 years and 9 months.

135 On the offender’s release to parole I recommend that the authorities impose conditions that:

He be of good behaviour for the period of his parole
That he comply with all directions of the Probation and Parole Service as to
His residence
His associates
Any courses as to drug and alcohol counselling that may be recommended.

136 I dismiss the back up charge of negligent driving causing death under s.167(a) of the Criminal Procedure Act 1986 as well as the related charge of failing to stop after an accident.

137 The offender is convicted of the charge on the s166 certificate of take and drive conveyance without consent (seq 6) and is sentenced to a term of 12 months imprisonment. On the charge of drive while suspended (seq 7) he is sentenced to a term of 12 months imprisonment. The sentence on each count is to be served concurrently with the term to which he has already been sentenced, to date from 9 September 2005.

138 I impose a period of disqualification from driving for a period of three years to commence from today pursuant to S188(2)(d) of the Road Transport (General) Act 2005.

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13/10/2006	-	Stars to signify end of judgment at the end. - Paragraph(s) 138
18/10/2006	-	Name of the deceased child appeared in the judgment. Given the provisions of s11 of the Children (Criminal Proceedings) Act 1987, the reasons are amended to delete the name.Further, the length of the total term for each count is amended to read 7 years and 3 months, instead of 7 years and 9 months. This reflects the terms of the sentence where His Honour has said that the overall head sentence would be 8 years and 3 months. The date of expiration of the Parole Period for count 1 now reads 8 December 2012, and 8 December 2013 for count 2. - Paragraph(s) 12, 15, 43, 82, 89, 134.