R v Millwood

[2012] NSWCCA 2

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	R v Millwood [2012] NSWCCA 2
Hearing dates:	6 December 2011
Decision date:	06 February 2012
Before:	Bathurst CJ at 1 Simpson J at 2 Adamson J at 78
Decision:	Crown appeal dismissed.
Catchwords:	CRIMINAL LAW - crown appeal - sentencing - sentencing guidelines - plea of guilty - dangerous driving occasioning death; dangerous driving occasioning grievous bodily harm - s 5D Criminal Appeal Act 1912 - s 52A Crimes Act 1900 - s 12 Crimes (Sentencing Procedure) Act 1999 - s 44 Crimes (Sentencing Procedure) Act 1999 - s 166 Criminal Procedure Act 1986 - objective criminality of offences - moral culpability - objectives of sentencing - consideration of deterrence - provisional driving licence - licence disqualifications - drugs - alcohol - vehicle restrictions
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Criminal Procedure Act 1986
Cases Cited:	R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383 R v Berg [2004] NSWCCA 300 R v AB [2011] NSWCCA 229 R v Fernando (1992) 76 A Crim R 58 R v Jurisic (1998) 45 NSWLR 209 R v Whyte [2002] NSWCCA 343, 55 NSWLR 252
Category:	Principal judgment
Parties:	Regina (Applicant) Shane Richard Millwood (Respondent)
Representation:	Counsel S Dowling (Applicant) P Strickland SC (Respondent) Solicitor S Kavanagh (Applicant) Legal Aid NSW (Respondent
File Number(s):	10/418221
Decision under appeal	Jurisdiction: 9101 Citation: N/A Date of Decision: 2011-07-26 00:00:00 Before: Black DCJ File Number(s): 10/418221

Judgment

1. BATHURST CJ: For the reasons given by Simpson J, I agree that the appeal should be dismissed.

1. SIMPSON J: Pursuant to s 5D of the Criminal Appeal Act 1912, the Director of Public Prosecutions ("the DPP") appeals against the asserted inadequacy of sentences imposed upon the respondent in District Court at Lismore, following his pleas of guilty to one count of aggravated dangerous driving occasioning death, and one count of aggravated dangerous driving occasioning grievous bodily harm. Both offences were committed in the early hours of 18 July 2010 as part of the same event. In each count the single circumstance of aggravation alleged in the indictment was that the respondent's ability to drive was very substantially impaired by the fact that he was under the influence of a combination of drugs (they being alcohol and cannabis): see Crimes Act 1900 s 52A(7).

1. Pursuant to s 52A(2) of the Crimes Act , the first count carries a maximum penalty of imprisonment for 14 years. Pursuant to s 52A(4) the second count carries a maximum penalty of imprisonment for 11 years.

1. On the first count, Black DCJ sentenced the respondent to imprisonment for 4 years, commencing on 8 September 2011, and expiring on 7 September 2015, with a non-parole period of 3 years, expiring on 7 September 2014. On the second count he sentenced the respondent to imprisonment for 2 years, commencing on 7 September 2014 (it should have been 8 September 2014), and therefore wholly accumulated upon the non-parole period of the previously-imposed sentence, expiring on 6 September 2016 (it should have been 7 September), with a non-parole period of 9 months, expiring on 6 (7) June 2015.

1. His Honour imposed successive licence disqualifications of 4 years and 2 years, expiring on 16 July 2016.

1. Also before the court was a certificate under s 166 of the Criminal Procedure Act 1986 on which were listed four "back up" charges, two of which were ultimately withdrawn and dismissed. The remaining two (of driving whilst there was present in the respondent's blood the prescribed concentration of alcohol, and failing to comply with high performance vehicle restriction) resulted in, respectively, a fixed term of imprisonment for 9 months, commencing on 8 September 2011 and expiring on 7 June 2012 (and therefore wholly subsumed in the two previously-imposed sentences) and a further disqualification of 12 months, from 18 July 2010 to 17 July 2011, (and therefore also wholly subsumed).

1. The aggregate term of imprisonment is 5 years with a non-parole period of 3 years and 9 months. The DPP complains that that sentence is manifestly inadequate.

The facts

1. The facts are undoubtedly very serious indeed. They were put before the court by way of an agreed statement.

1. On the day before the offences, 17 July 2010, the respondent attended a memorial service marking the first anniversary of the death of a friend. He then attended a hotel, from which he was, at 1.45 am the following day, removed because of intoxication and aggressive behaviour. At 3.15 am, he was driving a turbocharged Volvo station wagon on a road in Byron Bay. He stopped to pick up two hitchhikers, Dylan Garft and Ben Donohoe. Ben Donohoe sat in the rear seat behind the respondent. Dylan Garft sat in the front passenger seat. The respondent told the two passengers to "buckle up" and pressed his foot on the accelerator. The speed limit on that part of the road was 50 kph, but the respondent travelled at a speed well in excess of that. Mr Garft formed the view that the respondent was showing off. The acceleration was such that Mr Garft felt himself being pushed back in the passenger seat.

1. The respondent approached a moderate left bend in the roadway and crossed to the incorrect side of the road, in the path of a Commodore travelling in the opposite direction. The driver of the Commodore swerved to avoid collision with the respondent; the respondent also swerved and began to rotate on the roadway. His vehicle left the roadway and collided heavily with a tree. The area was residential. The impact of the vehicle was of sufficient severity to dislodge the engine, and throw it a considerable distance, into the middle of an intersection, where it narrowly missed a taxi travelling on the roadway. The force also caused the right wheel of the Volvo to break off and travel a distance of 80 metres. These events give some idea of the force of the impact, and therefore the speed at which the vehicle was travelling.

1. Ben Donohoe was thrown through the back window of the Volvo. He sustained multiple injuries which were fatal.

1. Dylan Garft sustained an injury to his eye (which subsequently required surgery), fractured ribs, pneumothorax, lung contusions, a fracture of the left scapula and a fracture of the right ankle.

1. The respondent also suffered fractures to his neck and ribs.

1. Blood testing (at some later time) disclosed a blood alcohol reading of 0.132 mg of alcohol per 100 ml of blood (which, it was agreed, would, at the time of collision, have been not less than 0.150 mg and not more than 0.176 mg, with a most likely level of 0.158 mg). There were also present in the respondent's blood various other drugs, ecstasy, cannabis and diazepam. At the time, the respondent's capacity to drive was very substantially impaired. So much is acknowledged by the respondent's pleas of guilty to the counts on the indictment.

1. The respondent was the holder of a provisional driving licence. He was therefore not permitted to drive with any concentration of alcohol in his bloodstream at all. Moreover, he was not permitted to drive high performance vehicles such as the turbocharged station wagon.

1. The respondent told ambulance officers at the scene that he had not been in the vehicle. He was subsequently interviewed, and agreed that he had been driving, and had been travelling at about 90 kph at the time of the collision. This was consistent with expert evidence, which was that the minimum speed of the vehicle would have been 91 kph, and the maximum 109 kph.

The proceedings on sentence

1. Before the court, beside the statement of facts, was a "Collision Reconstruction and Analysis Report" with photographs both of the vehicle and the location of the collision. There was also a statement of facts of a previous offence committed by the respondent, on 30 November 2003, when he was found, by a random breath test unit, to have been driving a motor vehicle with a blood alcohol concentration of 0.120 gm per 100 ml. The respondent hand, at that time, never held a driving licence. Three passengers were in the vehicle.

1. Also in evidence were a Pre-Sentence Report, some medical evidence concerning the respondent, and a number of reports and testimonials. A significant document was a letter from the respondent's sister, Letechia Lucas. Dylan Garft and Ms Yvonne Donohoe (Ben Donohoe's mother) read Victim Impact Statements to the court. Mr Garft described both the physical and emotional effects upon him. He said that the accident had left him "emotionally ruined"; he suffers nightmares of the crash, and finds it very difficult to travel in a car, which makes him anxious and nervous. He has feelings of guilt because he survived and his friend did not. He finds media reports of events relating to speed, drink driving or crashes confronting and difficult to cope with. His normal life has been "totally overwhelmed". He said that all of his symptoms left him with "chronic emotional dis-regulation".

1. He also said that it had been "financially straining", had impeded him in his career goals, and affected his relationships.

1. Ms Donohoe's statement was lengthy, extending to over six pages of typescript. It is impossible to read it without a consciousness of the severity of the repercussions of the respondent's behaviour.

1. Although the respondent did not give evidence in the sentencing proceedings, he read a statement to the court. It is as follows:

"To the families that I've hurt so badly: I don't know how to start a letter to the families that I am the cause of their son to pass away; one to be hospitalised. I feel sorry every day for my actions and now I have to pay the price. I just hope you can get some kind of relief from this letter and I hope you know that I didn't mean to hurt anyone let alone kill someone that night.

I just think every day why couldn't I keep driving at not pick anyone up but it all comes back to I shouldn't have been drink driving in the first place. It is the worst choice I have ever made in my life. If I make it out of gaol I want youse to know I will move away from Byron Bay so you don't have see my face and be reminded of what happened that night.

If there is anything else I can do to help please let me know.

Yours sincerely with great remorse

Shane Millwood"

1. Both the Crown Prosecutor and the respondent's legal representative put detailed and carefully considered submissions to the sentencing judge. The Crown Prosecutor expressly submitted that the offences were:

"very substantially above the mid-range of objective seriousness, indeed above what might be regarded as the mid-point between the mid-range and the worst category.:."

The respondent's personal circumstances

1. Evidence of the respondent's personal circumstances was provided in the form of the reports which I have already mentioned. He was born in March 1984 and was 26 years of age at the time of the offences. He had some criminal record, to which I will come, including the previous drink driving offence mentioned above.

1. The Pre-Sentence Report shows that he had a severely dysfunctional childhood. He was the third of four siblings; his mother and stepfather were heroin addicts who neglected the family. His stepfather was physically abusive and often intolerant of the children's needs. At the age of 16 the respondent witnessed the death of his mother from a heroin overdose, having failed in attempts to resuscitate her. He did not receive any counselling following this traumatic event. His sister's letter expanded on the circumstances of his childhood and youth, and his consequent behaviour. She also spoke of the respondent's deep regret for what he had done.

1. Unsurprisingly, given the circumstances of his family life, his behaviour degenerated from an early age, and he began to use alcohol as well as a variety of illicit drugs.

1. He has convictions for offensive behaviour and associated offences, shoplifting, motor vehicle offences (driving unregistered and uninsured motor vehicles, driving without a licence, and the drink driving offence in 2003), assault (at least eight counts), and damage to property. In April 2006, he was sentenced to a term of imprisonment for 8 months, but the sentence was, pursuant to s 12 of the Sentencing Procedure Act , suspended. In October 2006, in respect of offences of assault, assault occasioning actual bodily harm and contravention of an apprehended domestic violence order, he was sentenced to imprisonment for 8 months.

1. The respondent entered a plea of guilty to the charges on 8 June 2011, and was then first taken into custody. On the same day, in respect of offences of assault occasioning actual bodily harm, and trespass with intent to commit an indictable offence, he was sentenced to a fixed term of imprisonment for 6 months, commencing on that date. No details of those offences were provided.

1. The sentencing judge had available to him a brief psychological report dated 14 January 2011. The psychologist had begun treatment of the respondent on 3 January, but had had only one consultation. On the basis of that consultation, he considered the respondent to be showing symptoms of anxiety, depression, guilt and trauma, much of it directly related to the offences. He also expressed the view that the respondent:

"... had and continues to have unresolved emotional issues that were existent prior to the 18 th of August."

He considered that the events had affected the respondent deeply. He proposed to continue treatment.

1. There was also a report of a "credentialed mental health nurse", dated 25 May 2011, saying, inter alia , that because the respondent's bail conditions required him to live in the Byron Bay area, he had become reclusive, leading to "a significant level of depression and anxiety", and predicting "long-term psychological distress." He said that:

"Since the accident, [the respondent] has lived in fear and under siege in a hostile environment, where he has attracted a high level of notoriety, including being assaulted and allegedly received death threats."

There was no direct evidence to substantiate these assertions. There was also evidence of the physical consequences of his injuries.

1. The respondent had also sought assistance from a local community health centre in October 2010. A youth drug and alcohol counsellor reported that he was "working hard to get on with his life", not drinking alcohol, and taking only prescription medication.

The Remarks on Sentence

1. The Remarks on Sentence are very brief. His Honour recounted the facts of the offences, noting the expert evidence concerning the blood alcohol reading and the extrapolation to the higher figure that would have been the case at the time of the collision. His Honour said:

"... and there were also significant traces of other illegal substances. The indictment I note limits itself to cannabis and I will limit myself to that in considering this matter."

That was a reference to the specific circumstances of aggravation alleged in the indictment, which charged that the respondent drove in a manner dangerous:

" ... when his ability to drive was very substantially impaired by the fact that he was under the influence of a combination of drugs, namely alcohol and cannabis ..."

Precisely what his Honour meant by the observation is not clear. Since it featured in the submissions advanced on behalf of the DPP on the appeal, it will have to be considered below.

1. By way of analysis of the objective gravity of the offences, his Honour said only this:

"The Crown describes the situation here as a serious abandonment of responsibility. According to the authorities as I read them, that is another way of saying that the moral culpability of the offender was high. The Crown correctly refers to the fact that he was a P plate driver and should not have been drinking at all. It is a 50 kilometre speed limit and the material shows that the speed of the impact was nearly double the speed limit and there is reference in the material possibly to showing off. The facts on their own are serious enough and the case of White [sic - R v Whyte [2002] NSWCCA 343, 55 NSWLR 252] gives significant guidance where moral culpability is high. The position here is that there are two offences, one death and one grievous bodily harm, there has to be in my view an overlapping of sentencing for that and in considering the appropriate sentence as I have already said I bear in mind the age of the offender."

1. He proceeded to make equally brief mention of the evidence of the respondent's personal circumstances.

1. His Honour made reference to the Victim Impact Statements, particularly that of Ms Donohoe, and also the letter written by the respondent's sister. He determined that, in recognition of the pleas of guilty, and in accordance with the principles stated in R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383, he would reduce the sentences imposed by "between 15 and 20%". In this context he noted that, although the pleas were entered almost 12 months after the offences, it had been known before then that the respondent would plead guilty, and he said:

"The Crown has indicated that they would concede 20% but I must say the circumstances of this accident, if I can call it that, mean that there was not much chance of avoiding conviction of this. I do give credit for the plea but it is more somewhere between 15 and 20% the credit that I give."

1. He considered whether he should find, pursuant to s 44 of the Sentencing Procedure Act, that there were special circumstances justifying departure from the proportions there stated between the non-parole period and the head sentence, but concluded that there were not. It can be seen that the first sentence imposed does conform with those proportions; the second does not, but that is clearly in order to restore the statutory proportions in the overall sentence, and that was achieved.

1. The judge noted the sentences of 6 months imposed on 8 June 2011 (expiring 7 December 2011). It is those sentences that explain the selection of commencement date of the current sentences; his Honour accumulated upon those sentences, by 3 months, the first of the sentences he imposed.

The grounds of appeal

1. The DPP pleads four grounds of appeal. They are formulated as follows:

"1. The sentencing judge failed to adequately assess the objective criminality of the offences leading to the imposition of manifestly inadequate sentences.

2. The sentencing judge failed to adequately assess the moral culpability of the respondent leading to the imposition of manifestly inadequate sentences.

3. The sentencing judge failed to have regard to the objectives of sentencing and in particular to considerations of deterrence leading to the imposition of manifestly inadequate sentences.

4. The sentencing judge gave excessive weight to the respondent's subjective case leading to the imposition of manifestly inadequate sentences."

1. Both parties argued grounds 1 and 2 together. I will deal with them in the same way.

Ground 1: Objective Criminality

Ground 2: Moral culpability

1. In written submissions filed behalf of the Crown it was (correctly) pointed out that:

"Assessment of and the attribution of due weight to the objective gravity of an offence is fundamental to the sentencing process: Markarian v The Queen [2005] HCA 25; 228 CLR 357; R v Khoury [2011] NSWCCA 118 at [71]."

1. The submission went on to characterise the sentencing judge's consideration of the facts as "cursory and incomplete", involving:

"... no meaningful analysis of how those matters affected the assessment of objective seriousness or the respondent's moral culpability ..."

In oral submissions it was said that the brevity of the Remarks on Sentence was indicative of a failure to give adequate reasons for the sentence imposed.

1. It was argued that, having regard to "the multitude of serious aggravating factors", it was necessary that his Honour accurately identify both the objective seriousness of the offences and the level of moral culpability of the respondent. Counsel for the DPP argued that it was "difficult to imagine a more serious example of aggravated dangerous driving". She pointed to:

• the level to which the respondent was affected by drugs and alcohol;
• that he was driving a high performance vehicle in breach of his licence restriction;
• that, knowing his level of intoxication, he picked up two hitchhikers, who were unaware of his ingestion of alcohol and drugs and his inexperience as a driver;
• that, within 500 metres, in a residential area, he accelerated to almost twice the legal speed; and
• that he was driving on the wrong side of the road and "showing off". Features that place the offences in the highest category of objective criminality include the number of victims, and the extent of their injuries.

1. The Crown also identified, separately, features of the offences relevant to the high level of moral culpability. These were:

the level of alcohol intoxication;

the level of multiple drug consumption;

the excessive speed at which the respondent was travelling;

the erratic driving prior to impact;

the showing off;

that the respondent was driving a high performance vehicle which he was licensed to drive;

the fact that Mr Donohoe was not wearing a seat belt (see R v Berg [2004] NSWCCA 300; R v AB [2011] NSWCCA 229);

the fact that the respondent "deliberately" put the two victims in the gravest danger by picking them up when they were hitchhiking, where he knew of the amount of drugs and alcohol he had consumed and that he was a provisional licence driver, circumstances of which the two victims were ignorant.

1. By way of response, senior counsel for the respondent argued that there was no substance in either of these grounds. He pointed out, correctly, that his Honour succinctly and accurately recited the key facts (drawing on the agreed statement) and that he did make reference, although brief, to each of the matters mentioned by the Crown. He took issue with the proposition (in reliance on Berg and AB ) that the fact that Mr Donohoe was not wearing a seat belt was a highly aggravating feature.

1. In Whyte , to which the sentencing judge made brief reference, this Court, constituted by a bench of five, including the then Chief Justice and the President of the Court of Appeal, promulgated guideline sentences applicable to offences against s 52A.

1. At [229 -231] the following appears in the judgment of Spigelman CJ:

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

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

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

231 In the case of the aggravated version of each offence under s52A [of the Crimes Act 1900], an appropriate increment to reflect the higher maximum penalty, and what will generally be a higher level of moral culpability, is required. Other factors, such as the number of victims, will also require an appropriate increment."

1. Section 52A(1) creates an offence of dangerous driving causing death, where the driver of a vehicle was under the influence of intoxicating liquor or a drug, or driving at a speed or in a manner dangerous to others. It prescribes a maximum penalty of imprisonment for 10 years. Section 52A(3) creates an equivalent offence, where grievous bodily harm is occasioned. It prescribes a maximum penalty of imprisonment for 7 years.

1. Section 52A(2) and s 52A(4) provide for the aggravated versions of these offences, with the increased maximum penalties I have set out above (14 years and 11 years respectively). Circumstances that take the offences into the aggravated category are set out in subs (7) and are:

"(a) the prescribed concentration of alcohol was present in the [driver's] breath or blood,

(b) the [driver] was driving the vehicle ... at a speed that exceeded, by more than 45 kilometres per hour, the speed limited ... applicable ...;

(c) the [driver] was driving the vehicle to escape pursuit by a police officer;

(d) the [driver's] ability to drive was substantially impaired by the fact that [the driver] was under the influence of a drug (other than intoxicating liquor) or a combination of drugs (whether or not intoxicating liquor was part of that combination."

(The only aggravating circumstance pleaded in the indictment was that provided for by subs (7)(d).)

1. The "typical case" mentioned in [229] of the judgment of Spigelman CJ was described in [204] as having the following features:

(i) Young offender.

(ii) Of good character with no or limited prior convictions.

(iii) Death or permanent injury to a single person.

(iv) The victim is a stranger.

(v) No or limited injury to the driver or the driver's intimates.

(vi) Genuine remorse.

(vii) Plea of guilty of limited utilitarian value."

1. The Chief Justice also identified a series of aggravating factors relevant to the assessment of objective gravity of an offence against s 52A. "Aggravating features" nominated in this list are to be distinguished from those "circumstances of aggravation" in subs (7) which take an offence of dangerous driving either occasioning death, or occasioning grievous bodily harm, into a higher penalty scheme: The aggravating features specified in Whyte (at [216], most of which are adopted from R v Jurisic (1998) 45 NSWLR 209 at 231 B-C) are:

"(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.

(x) Degree of sleep deprivation.

(xi) Failing to stop."

These features, if present, aggravate the offence, whether it is of the unaggravated or aggravated form as provided in s 52A.

1. A number of them are here applicable. Two people were immediately put at risk; but others on the roadway (for example the driver of and any passengers, in the Commodore) were put at risk, as was the driver of, and any passengers in, the taxi (but in respect of most dangerous driving charges the possibility of the presence of other road users may be assumed); the speed at which the respondent was travelling was almost double the prescribed speed limit for the area; the driving was erratic and competitive, or "showing off". In my opinion, the extent and nature of the injuries inflicted is not applicable; death is an integral element of the offence of which Mr Donohoe was the victim, and, while it could not be said that the injuries to Mr Garft were minor, nor were they in the realm of gravity sometimes seen in such cases. The length of the journey from the hotel prior to the respondent picking up Mr Garft and Mr Donohoe is not apparent from the materials; the length of the journey during which Mr Donohoe and Mr Garft (as passengers) were put at risk was relatively short. But that was because the nature of the driving was such that the journey came to an abrupt and tragic end.

1. As was pointed out by senior counsel for the respondent, the focus of each of these grounds is asserted failure adequately "to assess" objective criminality and moral culpability. The criticism is of the extent to which his Honour's reasoning to the sentences he imposed explains those sentences.

1. I accept that the Remarks are economical. But, when pressed, counsel for the DPP was unable to identify any matter of objective criminality that was omitted. In the passage extracted, the judge mentioned:

that the respondent was driving on a provisional licence and was permitted no level of blood alcohol;

that the speed limit applicable was 50 kilometres per hour;

that the respondent was travelling at almost double that speed;

that the respondent was "possibly showing off".

In other parts of the Remarks, he noted the presence of the "other illegal substances" in the respondent's bloodstream.

The comment by the judge that he would "limit [himself]" to cannabis in considering the drug ingestion by the respondent brought particular criticism on behalf of the DPP. It was pointed out that diazepam and ecstasy were also present, and that this fact aggravated the offences even if not specified in the indictment.

1. There was no evidence as to the nature of diazepam; counsel described it as "a sleeping tablet" and submitted that it was unlawful to drive having ingested that drug. In the absence of any identified statutory authority for that proposition, I would reject it. It is, of course, true that ecstasy is a prohibited drug, but, while the statement of facts identified the quantity present, there is no explanation, in non-scientific terms, of what that quantity signifies, and no evidence as to what effect it might have had, alone or in combination with alcohol and ecstasy, on the respondent's driving capacity.

1. I accept, however, that there was no mention that the respondent was driving a high performance vehicle in breach of his licence restrictions and no mention of his previous conviction for drink driving. These are not insignificant matters.

1. I am unable to identify in the Remarks any undue emphasis on the respondent's personal circumstances. They were, in fact, given equally brief treatment. Some emphasis was placed by counsel for the DPP on the failure to take into account "the number of victims". That is erroneous. The reference in Whyte is to "number of people put at risk." Each of these offences involved a single victim; to have taken into account, on one offence, that there was a second victim, in circumstances where that second victim was the subject of a separate charge, would have involved serious error.

1. Nevertheless, it is apparent that this was a case in which both the objective gravity, and moral culpability, were very high, such as to call for sentences in excess, and well in excess, of those the subject of the guidelines in Whyte .

1. Of course, guideline judgments are precisely that: guidelines. They do not bind sentencing judges to any greater degree than as a guide.

1. In my opinion, it is clear that, in respect of the more serious charge, by imposing a head sentence of imprisonment for 4 years (against the guideline of 3 years) his Honour has taken into account both the fact that this was an aggravated offence, and the other circumstances of aggravation that are applicable. The sentence imposed is, in fact, 33% longer than that promulgated in Jurisic .

1. That is not the case in respect of the offence of dangerous driving occasioning grievous bodily harm, which is precisely in alignment with the sentence promulgated in the guideline judgment, but with no apparent allowance for the fact that it was the aggravated form of the offence, or for the other aggravating features.

1. However, that has to be seen in the light of the total accumulation, and the resulting totality. When that is factored into the debate, I am not persuaded that inadequate attention was paid to objective criminality or to moral culpability.

1. A relevant circumstance in respect of moral culpability lies in the respondent's personal circumstances, which are plainly such as to invite some allowance to be made. I deal with this in more detail below.

1. Although the offences were indeed very serious, and notwithstanding the omission of mention of two circumstances relevant to objective gravity, I am not persuaded that the overall sentence was manifestly inadequate. It would have been open to the judge to have imposed a lengthier term, particularly in respect of the second offence, but that would have called for a degree of accumulation that would have resulted in an aggregate sentence much the same as that which was imposed.

1. I would reject Grounds 1 and 2 of the appeal.

Ground 3: Objectives of sentencing/deterrence

1. Complaint was made on behalf of the DPP that the sentencing judge made no reference to the objectives of sentencing or to how the sentence imposed achieved those objectives. It was submitted that the omission to refer to these matters is demonstrative of error.

1. I do not accept that submission. There is no call for sentencing judges to recite, in every sentencing decision, the objectives of sentencing. Sentencing is a daily task undertaken in the District Court and the objectives are plainly well known to those who perform that function.

1. Particular complaint was made that his Honour failed to refer at all to the important sentencing considerations of general and specific deterrence. That is, I accept, an omission. It is, however, overcome by the reference to the guidance given by Whyte , and the sentences there promulgated, which have built into them a general and specific deterrence component.

1. I would reject this ground of appeal.

Ground 4: "Subjective case"

1. The argument advanced under this ground was that a large proportion of the Remarks on Sentence was devoted to the respondent's personal circumstances. The submission was made that:

" ... it is evident that his Honour was greatly affected by the respondent's statement to the court, and his tragic and dysfunctional upbringing."

The submission went on:

" ... there is little in the circumstances of the respondent that assist him by way of mitigation. He is not young, being 27 years old at the time of sentencing. He has a lengthy criminal history ... the victims were strangers to him. His plea of guilty was not entered at the earliest opportunity."

1. I would reject the proposition contained in the first sentence. I am not prepared to accept that an offender who has the start in life that the respondent had bears equal moral responsibility with one who has had what might be termed a "normal" or "advantaged" upbringing. Common sense and common humanity dictate that such a person will have fewer emotional resources to guide his (or her) behavioural decisions. I should not be taken as implying that such a person bears no moral responsibility; but I consider that the DPP's submission significantly underestimates the impact of a dysfunctional childhood. Indeed, it sits uneasily with the immediately preceding acknowledgement that his upbringing had been "tragic and dysfunctional". That his background is a relevant consideration affording some (although limited) mitigation is entirely consistent with the approach taken by Wood J (as he then was) in R v Fernando (1992) 76 A Crim R 58, a decision which has repeatedly been followed in this Court. If that were not so, there would be no purpose in sentencing courts receiving, as they invariably do, evidence concerning the personal background of offenders.

1. It was acknowledged on behalf of the DPP that the respondent suffered injury himself and that this is a relevant sentencing consideration.

1. The timing of the plea of guilty, in this case, is of no assistance; it is apparent that the respondent had signalled his intention of pleading guilty at an early stage, sufficient for the Crown Prosecutor at sentencing to accept that a reduction of 20% in sentence would be appropriate.

1. Moreover, while the complaint is that the sentencing judge devoted "a large proportion" of his Remarks to the respondent's personal circumstances, complaint was also made about the paucity of the remarks devoted to analysis of the objective circumstances. In fact, a fair reading of the Remarks on Sentence shows that both aspects of the sentencing task were treated with the same, considerable, economy. The Remarks do not suggest to me that undue attention was given to personal circumstances as distinct from objective gravity.

1. I would reject this ground of appeal.

1. I note also that, as was pointed out on behalf of the respondent, the reduction allowed by reason of the plea of guilty, stated as "15 - 20%" appears to have been influenced, at least in part, by the strength of the Crown case. While the strength of the Crown case might be relevant to whether a plea of guilty is indicative of remorse, it is not relevant to the utilitarian value of the plea, which is the determinant for the identified reductions. It may be that, by taking this approach, the judge allowed a lesser reduction than he otherwise would have.

1. Although it is plain, in my view, that lengthier individual sentences, and a lengthier overall sentence, could have been imposed without error, I am not satisfied that the aggregate sentence in this case is manifestly inadequate.

1. I would dismiss the Crown appeal.

1. ADAMSON J: I agree with Simpson J.

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Decision last updated: 14 February 2012