R v Price

[2004] NSWCCA 186

CITATION:	R v Price [2004] NSWCCA 186
HEARING DATE(S):	26/05/2004
JUDGMENT DATE:	3 September 2004
JUDGMENT OF:	Hulme J at 1; Simpson J at 10; Howie J at 10
DECISION:	The appeal is allowed and the sentences imposed by Acting Judge Ducker are quashed. In respect of each count the respondent is sentenced to 3 years imprisonment with a non-parole period of 12 months to date from 27 November 2003. The non-parole period is to expire on 26 November 2004 the date upon which the respondent is to be released to parole. It is to be a condition of his parole that he places himself under the supervision of the Probation and Parole Service.
CATCHWORDS:	Criminal Practice and Procedure - Sentencing - Crown appeal following conviction on two counts of dangerous driving causing death - application of R Whyte - relevance of the number of deaths - Crown appeal allowed and the respondent re-sentenced.
LEGISLATION CITED:	Crimes Act 1900 - s 52A
CASES CITED:	R v Carr (2002) 135 A Crim R 171 R v Whyte (2002) 55 NSWLR 252 R v Skrill [2002] NSWCCA 484 R v Jurisic (1998) 45 NSWLR 209 R v Sullivan [2004] NSWCCA 99 Pearce v The Queen (1998) 194 CLR 610 Wilkins (1988) 38 A Crim R 445 Gorman [2002] NSWCCA 516 R v Hammoud (2000) 118 A Crim R 66
PARTIES :	Regina v Andrew Ian Price
FILE NUMBER(S):	CCA 60023/04
COUNSEL:	D. Woodburne - Crown A. Cook - Respondent
SOLICITORS:	S. Kavanagh - Crown S. O'Connor - Respondent

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	02/51/0196
LOWER COURT JUDICIAL OFFICER :	Ducker ADCJ

60023/04

HULME J
SIMPSON J
HOWIE J

FRIDAY 3 SEPTEMBER 2004

R v Andrew Ian PRICE

Judgment

1 HULME J: In this matter I have had the advantage of reading the reasons for judgment of Simpson J and Howie J. Subject to what follows I agree with their Honours.

2 In my view in respect of the first count the Respondent should be sentenced to imprisonment for 2 years and 9 months, including a non-parole period of 1 year and 6 months, both such terms to commence on 27 November 2003 and in respect of the second count the Respondent should be sentenced to imprisonment for 2 years and 9 months, including a non-parole period of 1 year and 3 months, both such terms to commence on 27 February 2005. The total effective sentence would thus be one of 4 years imprisonment, including a non-parole period of 2 years and 6 months. The non-parole period of the second sentence has been reduced in order to provide a parole period which gives reasonable effect to the finding of special circumstances and not because of any view that the Respondent’s criminality the subject of that charge is less than that the subject of the first charge.

3 Both the objective circumstances of the Respondent’s offences and his subjective circumstances have been detailed by their Honours and I need not repeat them. Otherwise the principal factors leading me to the conclusion that the sentences should be as I have described are the following. One is the guideline judgement of this Court in R v Whyte [2002] 55 NSWLR 252 where it was said, at [229], that for a typical case, there identified, of an offence such as the Respondent’s, “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.”

4 The second is my view that the Respondent’s moral culpability was high. In that regard there is his blood-alcohol level. At 0.1 or thereabouts, it was about twice the legal limit of 0.05 even if it was, as the trial judge said, “markedly below that which is commonly encountered in this particular form of dangerous driving”. However, more important to my mind was the nature of the Respondent’s driving at a time when he knew he had had a substantial amount to drink. As Simpson J and Howie J have pointed out, the Respondent succeeded in failing to negotiate a relatively gentle curve of a road despite adequate lighting and good road surface after travelling for but 5 minutes, and skidded, to some extent sideways, for some 38 metres before hitting a tree. Photographs of the car after the impact demonstrate that the impact must have been of some substantial force. Those facts indicate that there was grave inadequacy in his driving, whether this be in the form of speeding, inattention or otherwise.

5 A third lies in the fact that there is nothing otherwise in the circumstances of the case as it was presented to Acting Judge Ducker which argues for the view that the Respondent’s criminality was of a lesser order than the typical case referred to in R v Whyte. Nor is there anything in the Respondent’s subjective circumstances which argues for any significant reduction in the sentence otherwise indicated as appropriate.

6 I make it clear that, in my reliance on the decision in R v Whyte, I do not treat that case as doing any more than providing the guideline it purports to give. However it, and R v Jurisic [1998] 45 NSWLR 209 which preceded it, were considered judgments of this Court and in my respectful view represented a weighing of the competing considerations to be taken into account in the typical cases to which they referred in a way which was certainly not unfair to offenders. The result is undoubtedly hard on someone such as the Respondent – a person who, but for the particular transgressions the subject of present consideration, would seem to be a worthwhile member of the community. But his actions resulted in far worse for his victims and the tenor of the statutory provisions and the need to deter others from acting as he did means that a substantial punishment must be imposed.

7 To these considerations must be added reference to 3 further matters. One is that the Respondent did not plead guilty. He is not, of course, to be punished for that but he is not entitled to the discount which flows from a plea of guilty. The sentence of (not less than) 3 years envisaged in R v Whyte was for an offender who was entitled to a discount for a “plea of guilty of limited utilitarian value”. The sentence thus reflected a discount of the order of 10%. See R v Whyte at [204]; R v Sullivan [2004] NSWCCA 99 at [10-11] and [54].

8 The guideline also contemplated the commission of but one offence. As was said in the case itself, some increment in such a sentence could be expected in the event of there being more than one victim. I have difficulty in seeing how that increment could reasonably be less than an increase of 12 months in the non-parole period.

9 Thirdly, the Respondent is of course entitled to such benefits as flow from this being a Crown Appeal and the considerations which the double jeopardy consequent thereon necessarily involves. Nevertheless there must remain some balance between the allowance on that account and the punishment his conduct requires. The sentence I favour is what I regard as the lowest that could reasonably have been imposed at first instance and, although it does involve a large increase on that originally imposed, the principal cause lies in the grossly inadequate sentence imposed by Acting Judge Ducker.

10 SIMPSON J and HOWIE J: The respondent to this Crown appeal was convicted after trial by jury of two counts of dangerous driving causing death. Each offence was contrary to s 52A of the Crimes Act and carried a maximum penalty of imprisonment for 10 years. Acting Judge Ducker sentenced the respondent on each matter to imprisonment for 2 years with a non-parole period of 12 months. The sentences commenced on 27 November 2003, the date of sentence, and were to be served concurrently. The respondent is to be released to parole on 27 November 2004. The Crown asserts that the sentences are manifestly inadequate.

11 The jury found that the respondent was driving under the influence of intoxicating liquor at the time of the accident that resulted in the death of the two passengers in his vehicle. The Crown case was that the respondent was driving at an excessive speed and that he was under the influence of alcohol. The death of the two victims was occasioned by the vehicle leaving the road and coming into impact with a tree.

12 The respondent asserted before the jury, as he had done shortly after the collision, that the accident was a result of his having been forced to leave the road surface to avoid a vehicle being driven on the respondent’s side of the road. The jury were clearly not satisfied that the deaths occasioned by the impact were not in any way attributable to the fact that the respondent was under the influence of alcohol or driving at an excessive speed; s 52A(8). The sentencing judge found beyond reasonable doubt that there was no other vehicle.

13 It, therefore, follows that the respondent had lost control of the vehicle when negotiating a bend in the road because of his intoxicated state. Yet it was a paved road in relatively good condition, dry and reasonably well lit. There was no evidence to suggest that the conditions of the road or the lighting were responsible for the loss of control of the vehicle. The vehicle had slid 38 metres into the tree, almost sideways, causing extensive damage to the whole of the passenger side of the vehicle and resulting in the death of his two passengers.

14 The facts need a little further amplification. The respondent had on the evening of the accident attended a 21st birthday party at a football club. He had consumed alcohol there and at about 1.30am decided to adjourn to a nearby hotel. He asked a friend to move his car from the club to the hotel because he felt intoxicated. He left from the Ballina Hotel at about 3.30am and had been driving for about five minutes before the accident occurred. He said that he had been driving at 50kph before losing control of the vehicle after he swerved onto the grass. The persons who were killed in the accident were a long-standing friend of the respondent aged 23 and the deceased’s friend, a female aged 25, whom the respondent did not know well. They had asked him for a lift and he complied. The respondent was intending to drive them home, but, for some unexplained reason, the accident occurred after the respondent’s vehicle had passed the residence of the passengers.

15 It was clear that the respondent lost control of the vehicle when negotiating a sweeping right hand bend. The Crown asserted that this was as a result of the speed at which the vehicle was travelling combined with the respondent’s impaired ability to drive the vehicle because of his intoxication. According to the respondent he was awake, alert and in conversation with the male passenger at the time of the accident. The road was 8.3m wide with no centre line. It was described as being in good condition and free from loose material. It was governed by a 50kph speed limit. The marks on the road surface and the grass area before the crash site indicated that the vehicle was going into yaw on the road surface; that is traction was lost because of excessive speed or over-steering and causing the vehicle to rotate on its axis. There were photographs in evidence showing the positioning of a jig to represent the movement of the vehicle’s wheels at the time of loss of control and as it left the road surface.

16 The respondent told police, who spoke to him shortly after the accident, that he had consumed three or four middies of full-strength beer. He said that he commenced drinking at 8 pm and had a sip of a drink about an hour and half before the accident. Later in a recorded interview the respondent gave a different account of his consumption of alcohol. He said that he had commenced drinking at 7 pm and concluded at 12 pm. He had consumed six VB stubbies at the party and then a rum and coke at the hotel. The police officers, who spoke to him, both could smell alcohol on his breath.

17 In relation to the effect of the alcohol on him, the respondent told police:

I was, I was fine, cause I, when I go out I normally don’t drink alcohol, cause I can’t afford to, I just go out just to socialise and, and when I do drink I stop drinking well before I’ve got to drive home and I count drinks. So, I know when I’m right to drive.

He also said that he did not believe that he was over the “legal limit” when he entered his car to drive home. He felt fine before the accident, was alert and talking with the male friend who was sitting beside him.

18 A sample of blood was taken from the respondent when he attended the Ballina Hospital shortly after the accident. It returned a reading of 0.084 grams of alcohol per 1000 millilitres of blood. Evidence by Dr Pearl at the trial was to the effect that the likely concentration of alcohol at the time of the accident was 0.1 and not less than 0.095, a reading that his Honour described as being “towards the bottom of the scale of medium range offences”. The doctor’s evidence was that the respondent would have been significantly impaired in his capacity to drive a motor vehicle at the time of the impact. The less experienced the driver the greater the impairment. A police officer attending the scene of the accident thought that the respondent was slightly to moderately affected by intoxicating liquor.

19 The respondent gave evidence at his trial. He said that he felt he was “over the limit” at the time he asked a friend to move his motor vehicle to the hotel. He maintained that he had only one drink at the hotel, a rum and coke as he arrived. He had nothing to drink for the three hours thereafter. He was unfamiliar with the road where the accident occurred and was being directed by the male accused. He said that he had five years driving experience and believed that had it not been for the other motor vehicle he would have been able to safely negotiate the corner at the speed he was travelling. He was not feeling the effects of alcohol at all.

20 His Honour found that the respondent’s assertion that he lost control because of the lights of an on-coming vehicle was untrue. The respondent had steadfastly maintained this version from when police spoke to him at the scene, during the course of his evidence to the jury and when interviewed by an officer preparing a pre-sentence report. He had rejected any suggestion that his driving was affected by the alcohol he had consumed. In reference to the respondent’s assertion about the on-coming vehicle and his refusal to accept responsibility for the accident, his Honour said:

The offender has, at all times, claimed that [ ] a motor vehicle caused him to swerve to avoid a head-on collision with such a vehicle. I believe that the reason for the vehicle leaving the road was that the driving capacity of the offender was impaired and clearly the jury’s verdict confirmed that. It is very easy to be critical of the young offender - he was 23 at the time or less than that – in that he did give a version which was meant to be exculpatory of himself. I believe that he did that because he was so shocked and horrified by what had occurred – what must have been increasingly clear over those terrible moments after he made an inspection of the vehicle and saw the state of the two passengers – that they were either not alive or not going to survive. Once having made that claim he was in a sense stuck with it………..

21 With respect we do not understand the import of the last sentence in that passage. Whatever might have been his immediate reaction, he had ample opportunity to confess the truth. The simple fact is that the respondent has never accepted his criminal responsibility for the accident and the death of the two passengers. He may be remorseful for the consequences of the accident, and he may genuinely feel sorrow for the loss suffered by the families. We have little doubt that he would wish to turn back the clock. But true contrition does not arise without an acceptance of guilt. This lack of contrition affects both the measure of denunciation required in response to his conduct resulting in the death of two young persons and the prospects of his rehabilitation. Without the respondent accepting criminal responsibility, we do not share his Honour’s confidence that the respondent is unlikely to offend in the future.

22 Be that as it may, the real question raised in this appeal is whether the sentence is manifestly inadequate or whether his Honour’s sentence was so infected by error that it cannot be allowed to stand. The objective facts are clearly serious and to these we will shortly return after referring to the subjective circumstances of the respondent.

23 The respondent was aged 23 years at the time of sentence. The offences had occurred about 18 months earlier. He has no criminal record or traffic history. He had the benefit of a supportive upbringing with his parents in Ballina. At the time of sentencing he was unemployed but receiving Newstart Benefits. He had been discharged from the army, in which he had served for three years, after sustaining a back injury in a motor vehicle accident. He had undertaken casual work as a spray painter before the fatal accident but had not worked since. He was living with friends in Ballina.

24 A psychological report emphasised the effect of the accident upon the emotional stability of the respondent, who was described as being “profoundly disturbed and distressed”. He had sought to attend the funeral of both deceased, but the parents of his male friend did not want him present in the congregation. There is nothing, in my view, in the psychological report of relevance to an assessment of the respondent’s culpability. The report does, however, reveal the magnitude of the effect of the accident upon him. The psychologist concluded:

He is deeply traumatised despite his outwardly “stable” look. He is living with the distressing symptoms of Post Traumatic Stress Disorder, reactive depression and high anxiety. At present he has no notions of recovery from his current condition and no future perspective.

25 The respondent’s mother gave evidence as to matters of general background and the effects of the accident upon her son. She stated that he had been receiving counselling from a psychologist to help him cope. There were also two testimonials tendered on his behalf.

26 This is yet another tragic case of an otherwise fine young man failing to act responsibly in relation to the consumption of alcohol and driving, with the result that he took the lives of two other young citizens. A full-time gaol sentence was inevitable but the question arises as to whether the sentence imposed was adequate to reflect denunciation and general deterrence, the important goals of punishment when sentencing for this type of offence that is unfortunately so often committed by young persons of otherwise impeccable character.

27 The Crown raises three complaints that are said to have vitiated the sentencing discretion exercised by Judge Ducker. They are as follows:

1. failure to give any weight at all or adequate weight to the principle of general deterrence;

2. excessive weight to the subjective features of the respondent;

3. misapplication of the principle in Pearce (1998) 194 CLR 610

28 As is so often the case, the first two grounds can only be answered by a determination of whether the sentence is manifestly inadequate and, therefore, whether some unidentified error must have occurred in the proper assessment of the objective seriousness of the offences in light of the subjective circumstances of the offender and the purposes of punishment in the particular case.

29 Insofar as general deterrence is concerned, the sentencing judge did not mention this consideration. This is notwithstanding the importance that has been attributed to that factor when sentencing for offences such as those of which the respondent was convicted. But the failure of an experienced sentencing judge to mention a matter is not conclusive of a failure to have regard to it: see R v Carr (2002) 135 A Crim R 171 at [34]. Yet it is disturbing that, general deterrence being such a significant matter in sentencing for this type of offence, no reference appears to have been made to it by his Honour either in exchanges with counsel or in the sentencing remarks. However, we would not be prepared to find that the sentence imposed upon the respondent would not act as a deterrent or sufficient deterrent to other young persons in the community. If there is error in the sentence imposed, we do not believe it lies in this complaint.

30 The second ground is again one that, generally speaking, can only be made good by a consideration of the sentence imposed as against the objective seriousness of the offence. If the sentence fails to reflect the criminality inherent in the offence committed, then it might be assumed that the sentencing judge either failed to properly assess the criminality, or having done so, paid it insufficient regard as against the subjective case presented on behalf of the offender.

31 It must be said that this was not an exceptional subjective case having regard to the nature of the offence and the persons who are likely to commit it. In Whyte (2002) 55 NSWLR 252 at [204] the Chief Justice set out the factors that frequently recur in offences of this kind. So far as matters subjective to the respondent are concerned, they are: young offender; of good character with no or limited prior convictions; no or limited injury to the driver or the driver’s intimates; and genuine remorse. There is nothing in the material that was before his Honour to indicate that the subjective case presented on the respondent’s behalf was other than typical and there was, therefore, nothing that warranted or justified the sentencing judge taking a course that was unusually lenient.

32 There were, however, at least three matters that took the present out of the ordinary case, and these were highly significant: there was more than one death; there was a plea of not guilty; and there was no contrition as distinct from remorse. True it was that, with possibly one exception, there were not aggravating features, the presence of which might indicate that the moral culpability of the respondent was high. See Whyte at [228]. But it does not follow that the offence was not a serious one that warranted condign punishment. The matter of possible aggravation was the degree of speed at which the respondent was driving at the time of the accident.

33 Judge Ducker after referring to the matters in Whyte which were held to be indicative of the ‘typical case” stated:

Overall I think that it could be regarded as a typical case in the sense that it was serious, but no more serious certainly in terms of moral culpability than the typical case referred to in Whyte.

34 With respect, that assessment is erroneous because of the presence of the three matters to which we have made reference: in particular, the fact that there was more than one death. It was an atypical case despite the fact that it may not have fallen within the category where an offender’s moral culpability was high because of the aggravating factors set out in items (iii) to (xi) at [216] – [217] of Whyte.

35 In that list of aggravating factors (ii) is “Number of people put at risk”. This particular factor is not identified as one of the “frequently recurring elements which directly impinge on the moral culpability of the offender at the time of the offence” so that it is not one of the matters which may indicate that the offender’s culpability is high or “that the offender has abandoned responsibility for his or her own conduct”. We accept, with respect, that to be the case where one is considering only the fact that persons generally, such as other users of the roadway, are put at risk by the driving of the accused. It is in such a case, like (i), “Extent and nature of the injuries”, a consequence of the driving and says nothing about the moral culpability of the driver.

36 But it is a different situation where the offender knows the extent of the risk that was being created because he or she was aware of persons actually being placed in danger at the time of the driving. For example, it must be the case that the moral culpability of a driver of a bus full of passengers who is driving dangerously is worse than the moral culpability of the lone person driving the family vehicle in the same manner. So in the present case the fact that the respondent was driving two passengers in his vehicle at the time of the accident increased his moral culpability for driving in a manner dangerous or under the influence of alcohol. See R v Skrill [2002] NSWCCA 484 at [75] per Carruthers AJ with whom Hulme J generally agreed.

37 It is clear that the Chief Justice in both Jurisic (1998) 45 NSWLR 209 and Whyte was not attempting to identify all the matters that might impact upon the assessment of the moral culpability of an offender in any particular case. For example, the type of vehicle being driven might be an aggravating factor that goes to the moral culpability or the abandonment of responsibility of the driver in a particular case. The Chief Justice should not be taken in Whyte to be suggesting that the number of persons put at risk cannot be a matter that can affect an offender’s moral culpability, but only that in the normal case it would not.

38 It is trite that an offence under s 52A is a crime that has two distinct elements: a culpable act of driving and the consequence of that act. It is the consequence of the act of driving that gives rise to the particular offence committed and that makes the offender liable to a maximum penalty far in excess of that prescribed for the corresponding traffic offence. The fact that more than one person was killed as a result of the driving is such a significant attribute of the criminality arising from the offences charged against the respondent, that it had to result in a significant increase in the sentence that would have been appropriate in the typical case where only one person had been killed.

39 The significant matter of criminality arising from the respondent’s act of driving, without regard to the consequence of the driving, was the level of his intoxication and his loss of control of the vehicle. Judge Ducker held that “the degree of intoxication was markedly below that which is commonly encountered in this particular form of dangerous driving”. That assessment might be accurate but that does not necessarily resolve the issue of the respondent’s culpability for the loss of two lives, and certainly does not mean that the culpability was at the lower end of the scale. This was a case where the respondent maintained that he was alert at the time of the accident, observant of the roadway and conditions, and was travelling at a speed of between 50-60kms. Yet the motor vehicle left the road apparently because the respondent simply failed to negotiate a relatively gentle curve in the road despite adequate lighting and good road surface. He had only travelled for 5 minutes and was in a well-lit area of what appears to be an unremarkable location in the suburbs of a large country town.

40 If the version of the respondent as to the approaching vehicle is discounted, then he must have been incapable of the proper control of the motor vehicle to a very significant degree, regardless of what might be otherwise inferred from the blood-alcohol reading. Although his Honour found that the respondent was not driving in a manner dangerous because of excessive speed, the impact between the vehicle and the tree, some six metres off the edge of the road, was horrific. The respondent’s failure to control the motor vehicle was gross.

41 In any event, we cannot accept his Honour’s finding that the respondent was not travelling at an excessive speed for the circumstances in which he found himself. This is not to say that he was necessarily exceeding the speed limit to any substantial degree and certainly not to the speed calculated by Senior Constable Mills, being 83-93kph based upon the critical speed of the bend in the road. But it is obvious from the objective evidence that the respondent was travelling at a speed in excess of what was appropriate to negotiate the bend safely. The yaw marks were consistent with the vehicle either attempting to take the curve at excessive speed or with a sudden steering movement. The police officer gave evidence that there was no indication of the latter having occurred.

42 If one discounts the fact that there was another vehicle or some other incident to cause the loss of control, such as the respondent falling asleep at the wheel, there seems to be no other reason but excessive speed for the loss of control to such a marked degree that the vehicle acted as it did in travelling from the road surface to the accident site. Of course the respondent’s inability to assess the appropriate speed to take a bend is consistent with the significant impairment of his driving skills as a result of intoxication. However, even putting to one side the fact that the respondent was under the influence of alcohol, the loss of control when negotiating that particular stretch of roadway was, in my view, so gross that he was obviously driving in a manner dangerous to the public. The effect of intoxicating liquor may explain why he was driving in that manner.

43 We are, with respect, unable to understand how his Honour could come to a finding that the vehicle was not travelling at an excessive speed to safely take the curve in the road yet accept, as he was obliged to do, that the respondent’s driving ability was significantly impaired. The impairment had to have some impact on his driving in a practical and not simply theoretical basis for him to have lost control of the vehicle as he did. The respondent’s evidence that he was travelling at 50-60kph was given on the basis that he glanced at his speedometer shortly before the accident. But his whole account of the circumstances leading up to accident was untrue and there was no reason why he should be accepted on this particular fact when it was inconsistent with the objective evidence. Although his Honour was entitled to find facts for the purpose of sentencing, he could only do so on a rational basis in accordance with the evidence. There can be no doubt that the respondent was driving too fast to safely take the curve in the road and for that reason lost control of the vehicle. We are also in no doubt that he was travelling in excess of the speed limit of 50kph to a significant degree.

44 We are also of the view, with respect, that his Honour also gave insufficient regard to the seriousness of the blood-alcohol reading. The respondent had a blood-alcohol level of not less than 0.095. This is almost twice the legal limit. Had the level been at 0.15, he would have been guilty of an aggravated offence in respect of each death and the applicable maximum penalty would have been imprisonment for 14 years rather than 10 years. In that context we do not understand the significance of his Honour’s remark:

The degree of intoxication was markedly below that which is commonly encountered in this particular form of dangerous driving.

This seems to suggest that it was a matter of mitigation that the offence was not more serious. The degree of intoxication both by reference to the objective blood-alcohol level and the respondent’s inability to control the vehicle indicates a serious offence of its type.

45 His Honour’s finding that it was an important mitigating factor that the respondent did not have any criminal record was, with respect, erroneous. As has already been noted, it is a typical characteristic for offences under s 52A that the offender has little or no criminal record, as is the fact that the respondent had good character. Even before the guideline judgments of Jurisic and Whyte, it was accepted that general deterrence was so important when sentencing for this kind of offence that youth, good character and clear record could not be accorded the same weight they might have been given in sentencing for other offences where such subjective features were atypical.

46 The third ground of appeal asserting that his Honour erred in making the sentences wholly concurrent is clearly made out in my opinion. His Honour appears to have misunderstood the significance of the fact that two persons had died. He stated:

The sentences arising, as they do, out of exactly the same circumstances should be concurrent. An identical sentence for each of the offences is appropriate in the circumstance.

But it is simply not the law, and never has been, that, because two offences arise out of exactly the same circumstances, they should be dealt with by concurrent sentences.

47 Before Pearce v The Queen (1998) 194 CLR 610, what his Honour said might have been correct as a rule of thumb, because sentencing practice in this State allowed for the totality of criminality to be reflected in a single sentence where there were two or more offences arising from the same circumstances. But if the total criminality could not be reflected in a single sentence, the sentencer was required to cumulate the sentences, notwithstanding that the offences arose from a single criminal episode. Wilkins (1988) 38 A Crim R 445 is an example of a case where two offences of culpable driving occasioning death arising from a single accident resulted in cumulative sentences because the maximum penalty for one offence was insufficient to reflect the criminality involved.

48 Since Pearce it has been accepted that, generally speaking, the criminality arising from a particular offence is to be reflected in the sentence for that offence, and the issue of totality addressed by a consideration of whether the sentences are to be served concurrently or cumulatively. In Skrill, above, it was held by a majority of this Court that sentences for aggravated dangerous driving causing death and aggravated dangerous driving causing grievous bodily harm arising from the one incident of driving should have been imposed partly cumulatively to reach an appropriate overall sentence. See also Gorman [2002] NSWCCA 516 in respect of sexual assault offences arising from the same incident.

49 It will rarely be the case that sentences for multiple offences of dangerous driving causing death could be made wholly concurrent. Because, as was noted earlier, the criminality in the offence is not simply derived from the culpable act of driving without having regard to the consequences, the fact that more than one person is killed means that the criminality will not usually be sufficiently comprehended by a sentence that is appropriate for a single offence. In the present case, even assuming that a sentence of two years was appropriate for one offence, it could not, in my opinion, be an adequate reflection of the fact that the consequences of the respondent’s driving was the death of two persons. This is notwithstanding the statements in R v Hammoud (2000) 118 A Crim R 66 to the effect that a judge has a discretion as to whether to make sentences cumulative or concurrent and legal minds might differ as to what order was appropriate in a particular case.

50 It is clear that there have been a number of decisions of this Court that have either approved of, or imposed, concurrent sentences for multiple offences under s 52A even where more than one death has occurred. Some examples are set out in the judgment of Wood CJ at CL in R v Plumb [2003] NSWCCA 359 at [19]. That was an offender’s appeal against a sentence in which partly cumulative sentences were imposed for two offences arising from the one act of driving. As the Chief Judge notes, in none of the cases cited was any reference made to Pearce or its impact upon cases of multiple victims in dangerous driving cases. After referring to Skrill and Wilkins the Chief Judge, with whom Smart AJ agreed, stated:

I am not persuaded in the present case, having regard to the very serious injuries inflicted on the two victims, that some degree of accumulation was not called for. Otherwise it is difficult to see how the overall objective criminality could be accommodated within the confines of Pearce .

51 The reason given by the sentencing judge in the present case for imposing concurrent sentences does not appear to take into account whether such an order could, within the proper application of the principle in Pearce, reflect the totality of the criminality resulting from a single act of driving which was aggravated by the fact that the respondent had two passengers in his vehicle and which resulted in the death of both. His Honour went no further than concluding that the sentences should be concurrent because the offences arose “out of exactly the same circumstances”. In this regard his discretion miscarried.

52 In any event the overall sentence imposed did not reflect the objective circumstances of both the manner of driving and its consequences. Subject to any discretionary matters, the Crown appeal should be allowed notwithstanding the restraints and limitations placed upon this Court in allowing a Crown appeal. The sentencing discretion was infected with error and the sentences imposed were manifestly inadequate to a very marked degree.

53 The Court has received an affidavit by the respondent concerning his conduct while in custody. He has been doing what he can by way of work, courses and programmes to serve his period in gaol in a worthwhile manner. He has been involved in a Kickstart Camp for young offenders at Oberon in an attempt to instil in him an understanding of the need to take responsibility for other persons who rely upon him. He is hoping to attend two more such camps.

54 Mr Cook, on behalf of the respondent, has urged the Court not to intervene and disturb the sentence were the Court to find that there was error or that the sentence was manifestly inadequate. He relies upon the fact that the respondent is due for release to parole on 26 November next and is working toward that date. He also asked the Court to take into account the delay in lodging the appeal: a period of two months expired between the date of sentence and the filing of the appeal. A delay of that order is generally unacceptable, particularly where an offender has a period of 12 months or less to serve before release at the expiration of the sentence or on parole, and especially where he or she is serving a first gaol sentence. No good reason was given for the delay and it is a weighty matter in deciding whether to intervene.

55 The respondent also relies upon the conduct of the Crown at the sentencing hearing. During the course of the Crown’s submissions and after the prosecutor had submitted that the offences fell within the guideline and a fulltime custodial sentence was appropriate, his Honour said:

..It seems to me that it should be less than that indicated in Whyte’s Case. Do you wish to say anything about that? The moral culpability is less than in most cases. He showed considerable good sense earlier in the evening, a period elapsed where the suggestion is that he only had one drink, one further drink, and he believed himself capable of driving. And there is some suggestion that he still thinks that which is a little bit of a worry.


The Crown Prosecutor then went on to comment upon the evidence of Doctor Perl and her findings as to the respondent’s level of impairment.

56 We do not believe that the Crown Prosecutor should be taken as having accepted the proposition put by the sentencing judge in the first line of that quote or in some other way having led his Honour into error by accepting, even tacitly, that a sentence “less than that indicated in Whyte’s case” was appropriate.

57 Judge Ducker found that were special circumstances for a reduction in the non-parole period for the following reasons:

This will be the first sentence of imprisonment imposed upon a young man of good character, with a flawless prior record and who believed he was fit to drive and who earlier in the night – quite a lot earlier-and at that time thought he was not fit to drive and did not drive. He was mistaken but the moral culpability in my view is much less than usual.

However, it seems clear that he will need some careful counselling when he is released.

The Crown has not sought to argue that it was not open to his Honour to find special circumstances. However, apart from the fact that the respondent was a young man of good character being sentenced to full-time custody, there was nothing else in the material that could justify such a finding. There was no suggestion in the psychological report that the respondent needed counselling or would do so when released from custody. The probation officer thought he needed “medium level of intervention because of the serious nature of the offence and his attitude to his alcohol use”. But the fact that he continues to deny that alcohol was a cause of the accident and eschews responsibility for his loss of control of the motor vehicle leads me to have little confidence that any form of counselling would be met with an appropriate response.

58 A significant matter in determining the outcome of this appeal is the frustration and disappointment caused to the respondent by a variation in his anticipated release date, especially where it may result in a change of classification with more onerous conditions than he currently experiences, For that reason we would have found special circumstances and departed from the statutory ratio between the term and the non-parole period in order not to crush his endeavours at reform.

59 The sentence was manifestly inadequate and this Court must intervene and resentence the respondent. We agree with respect that the sentence proposed by Hulme J is within the range of sentences that ought to have been imposed by Judge Ducker, although opinions might differ as to where in the range of available sentences that proposed by His Honour would fall. However, we do not believe that it is now appropriate to impose such a sentence in light of the delay that has occurred since sentencing in the District Court.

60 The delay in the ultimate determination of the sentence to be served by the respondent has been occasioned by three stages in the judicial process: firstly, the delay in the lodging of the Crown appeal; secondly, in the time taken for the matter to be listed for a hearing in this Court; thirdly, the time take to resolve the appeal. Of course during the period of over 9 months since the respondent was sentenced by Judge Ducker, he has been continuing to serve his sentence. He has no doubt been in a state of uncertainty as to the outcome of the appeal and presumably continuing with the courses and programmes in which he was engaged at the time of the hearing of the appeal. In light of the fact that the respondent is a young man of generally good character serving his first period in custody, the delay between the sentencing in the District Court and the resolution of the appeal is a very significant matter in the exercise of this Court’s discretion to intervene at the behest of the Crown.

61 Had the matter been capable of being determined closer to the date when the sentence was imposed, we would have taken the course of allowing the appeal and increasing both the total term to be served by the respondent and the overall non-parole period, but not to the extent proposed by Hulme J. We would have imposed a total sentence of not less than 3 years and a total non-parole period of not less than 21 months. However, in light of the fact that the respondent is currently entitled to be released to parole on 27 November next and taking into account all the facts and circumstances of the offence and the subjective considerations touching upon the respondent and his rehabilitation, we are of the opinion that it would now be unduly harsh to extend his non-parole period at such a late stage in the course of the sentence imposed upon him. The justice of the matter, so far as both the respondent and the community are concerned, can best now be attained by allowing the respondent to be released to parole on 27 November, having served what was a not insignificant period in custody, but to extend the period during which he can serve the balance of the sentence in the community.

62 We come to this view having regard to the material before the Court both as to the impact upon the respondent of the deaths of his passengers and the manner in which he had approached his period in custody up to the date of the hearing. We accept, so far as can be reliably assessed, that at least one of the traditional sentencing objectives, the rehabilitation of an otherwise law-abiding young man, has been accomplished. We also consider that the sentence now imposed is not without a significant component of both general, and, to the extent to which it is necessary, specific deterrence.

63 In order to achieve that which we consider now to be the appropriate response to the Crown appeal we must depart from the general principle of sentencing stated in Pearce, and cannot do other than impose totally concurrent sentences. We are mindful of the fact that one of our reasons for finding error in the sentence imposed by Judge Ducker was his Honour’s failure to have sufficient regard to the fact that there were two deaths and the need for the sentences to reflect the increased criminality arising from that fact alone. However, his Honour’s error was that he determined to impose concurrent sentences for the wrong reason and the resulting overall sentence was inadequate.

64 We would allow the appeal and quash the sentences imposed by Acting Judge Ducker. In respect of each count the respondent should be sentenced to 3 years imprisonment with a non-parole period of 12 months to date from 27 November 2003. The non-parole period is to expire on 26 November 2004 the date upon which the respondent is to be released to parole. It is to be a condition of his parole that he places himself under the supervision of the Probation and Parole Service.

65 That is not to be regarded as the sentence that should have been imposed upon the respondent or which we believe is an appropriate one to punish the offences committed by him.

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Last Modified: 09/06/2004