R v Robert Borkowski

[2009] NSWCCA 102

Reported Decision: 195 A Crim R 152 MVR 528[2009] ALMD 4819[2009] ALMD 4858

New South Wales

Court of Criminal Appeal

CITATION:	R v Robert Borkowski [2009] NSWCCA 102
HEARING DATE(S):	17/03/2009
JUDGMENT DATE:	15 April 2009
JUDGMENT OF:	McClellan CJatCL at 1; Simpson J at 2; Howie J at 5
DECISION:	The Crown appeal is dismissed.
CATCHWORDS:	Criminal Law - Crown Appeal - Motor vehicle manslaughter - two deaths occasioned by racing vehicles on public streets - Discount for guilty plea - relevance of trial management procedures - Delay - effect of 15 months delay between arrest and sentence - Relevance of criminal record - Nature of manslaughter occasioned through use of motor vehicles - relevance of statutory scheme of offences - Crown's failure to appeal against sentence of co-offender - relevance to exercise of discretion.
LEGISLATION CITED:	Criminal Case Conferencing Trial Act 2008 Crimes Act 1900 - ss 51A, 52A, 53, 54 Road Transport (Safety and Traffic Management) Act - ss 40(1), 42(1)(b)
CATEGORY:	Principal judgment
CASES CITED:	R v Thomson and Houlton [2000] NSWCCA 309; 49 NSWLR 383 R v SZ [2007] NSWCCA 19; 168 A Crim R 249 Markarian v The Queen [2005] HCA 25; 228 CLR 357 R v Ellis (1986) 6 NSWLR 603 R v Todd [1982] 2 NSWLR 517 R v V (1998) 99 A Crim R 297 R v Shore (1992) 66 A Crim R 37 Lewins v R [2007] NSWCCA 189 R v Carter [1999] NSWCCA 376 Veen v The Queen (No.2) [1988] HCA 14; 164 CLR 465 R v Isaacs (1997) 41 NSWLR 374 R v Dally [2000] NSWCCA 162, 115 A Crim R 582 R v Pullman (1991) 25 NSWLR 89 R v Buttsworth [1983] 1 NSWLR 658 R v Cameron [2005] NSWCCA 359, 157 A Crim R 70 R v Diamond (NSWCCA, 18 February 1993, unreported) R v Chen [2002] NSWCCA 447 R v Ismunandar and Siregar [2002] NSWCCA 477, 136 A Crim R 206 R v Rexhaj (NSWCCA, 29 February 1996, unreported)
PARTIES:	Regina v Robert James Borkowski
FILE NUMBER(S):	CCA 2008/9615
COUNSEL:	M Grogan - Crown H Dhanji - Respondent
SOLICITORS:	S Kavanagh - Crown S O'Connor - Respondent
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	2008/9615
LOWER COURT JUDICIAL OFFICER:	Knight DCJ
LOWER COURT DATE OF DECISION:	05/11/2008

2008/9615

McCLELLAN CJ at CL
SIMPSON J
HOWIE J

WEDNESDAY 15 APRIL 2009

REGINA v Robert James BORKOWSKI

Judgment

1 McCLELLAN CJ at CL: I agree with Howie J.

2 SIMPSON J: I have read in draft the judgment of Howie J. I agree with the order proposed, and, generally, with his Honour’s reasons.

3 I expressly reserve my position in relation to the decision in R v Pullman (1991) 58 A Crim R 222. Since this Court was not invited to depart from the conclusions there reached, it would be inappropriate to reach a final view. I merely comment that the conclusions as stated are extremely broad; even if narrowed to encompass within the term “breach of some statutory or regulatory prohibition” only breaches of traffic laws, I am unable to see why such a breach could not form the basis of the ”unlawfulness” of an act necessary for a conviction for manslaughter by unlawful and dangerous act. That is a composite concept, and it is not every breach of traffic laws that would qualify – the act must also be dangerous, and sufficiently dangerous to justify the application of the criminal law.

4 With those reservations I agree with the judgment of Howie J.

The facts

5 HOWIE J: On Sunday 29 July 2007 at about 6.20pm, Mr and Mrs Howle were travelling in their motor vehicle along the Great Western Highway at St Mary’s. They were both aged in their 70’s. Mrs Howle was driving and her husband was in the passenger seat beside her. Mrs Howle had been stopped at a set of traffic lights and had just commenced to turn right out of the highway into a side street when there was an impact between her vehicle and that driven by the respondent. One observer described the impact as an explosion. So forceful was it that Mr Howle was thrown from the vehicle and died instantly. The Howle’s vehicle came to rest some 35 metres from the point of impact. Mrs Howle suffered grievous injuries and died at the scene.

6 At the time of the impact the respondent was engaged in racing two other vehicles along the Great Western Highway. Adam McDonald was driving one of the vehicles and Craig Johnson the other. The race had proceeded over a distance of about 5 kilometres and the vehicle driven by the respondent had reached speeds far exceeding the limit of 60kph. At the time of the collision the respondent’s vehicle was travelling at 120kph. The speedometer needle in his vehicle was stuck at 130kph and the tachometer needle at 2400 rpm. McDonald was travelling at about 100kph at the point when he applied his breaks just before the collision.

7 It was dark but the weather was fine. There were a number of persons in the area at the time who observed the manner of driving of the respondent and his co-offenders. They were seen to be travelling at high speed and weaving in and out of traffic. They stopped at a red traffic light and took off at high speed as soon as the light turned green. It is apparent that at times the three vehicles were in different lanes.

8 At about half a kilometre from the point of impact the vehicles again stopped at a red traffic light. At this stage the respondent was in the lane closest to the median strip. McDonald was in the outside lane and Johnson between the two. Again, when the light turned green, the three vehicles accelerated sharply and continued the race passing through a pedestrian crossing outside a licensed club.

9 As a result of the impact the respondent’s vehicle was out of control and turned 180 degrees to collide with the vehicle driven by McDonald. As a result of that impact the vehicle turned another 180 degrees and ended close to the Howle’s vehicle. Johnson’s vehicle managed to avoid the impact by travelling across the median strip. He did not stop.

10 The respondent was conveyed to hospital with minor injuries. A blood sample taken from him revealed that he had a blood alcohol reading of 0.031 and there was the presence of the residue of cannabis and methylamphetamine. Mr McDonald’s blood was sampled and revealed the presence of the residue of cannabis. Dr Perl was of the opinion that the most likely blood alcohol level of the respondent at the time of the collision was 0.063. She was of the opinion that there would have been some impairment of his driving skill from both intoxication by alcohol and drugs.

11 The respondent attended at a police station on 31 July 2007 and made a statement admitting he was the driver of the vehicle that impacted with Mrs Howle’s vehicle. He was arrested and refused bail. He remained in custody until the date of sentence.

The sentence

12 The respondent pleaded guilty to two charges of manslaughter on arraignment in the Penrith District Court. There had been a committal proceeding where witnesses were called because the Crown had been alleging that he had travelled through a red light. That allegation was subsequently dropped. McDonald pleaded guilty to two counts of manslaughter in the Local Court. The man Johnson died at some time after the incident. The statement of facts placed before the Judge stated that the basis of the manslaughter charge was unlawful and dangerous act. The nature of the unlawful act was not specified.

13 Manslaughter is an offence that carries a maximum penalty of imprisonment for 25 years. The Judge sentenced the respondent to a total sentence of 9 years with an overall minimum period of 6 years to date from 31 July 2007. McDonald was sentenced to a total sentence of 8 years with an overall minimum period of 5 years to date from 5 November 2008.

14 The sentence imposed upon the respondent was made up of a fixed term of imprisonment of 4 years from 31 July 2007 on the first count, relating to the death of Mrs Howle, and a term of imprisonment made up of a non-parole period of 4 years and a balance of term of 3 years from 31 July 2009 on the second count, relating to the death of Mr Howle. As a consequence the respondent is eligible to be released to parole on 30 July 2013. The respondent was disqualified from driving for a period of 6 years from 5 November 2008.

15 The Crown has appealed against the sentence imposed against the respondent. McDonald has appealed against the severity of his sentence. One of his grounds of appeal is disparity with the sentence imposed upon the respondent. The Crown has not appealed against the sentence of McDonald. At the conclusion of the hearing of the appeal by the Crown against the respondent, McDonald sought an adjournment. This was not opposed by the Crown and was granted.

Subjective matters

16 The respondent was born on 6 May 1970 and hence was aged 37 at the date of the offences. He has a criminal record dating back to 1984 when he was before the Childrens Court for malicious damage. He received short gaol sentences in 1992 and 1994 for dishonesty offences. He had other offences including malicious damage by fire in 1992, child sexual assault in 1998 and possession of a prohibited drug in 2001. His traffic record includes a low range PCA in 1995 and 1999, a mid range PCA and drive whilst disqualified in 2001 and disobeying traffic lights and making an unlawful u-turn in 2006.

17 There was a psychological report in evidence. It contained little of significance given the respondent’s age and the nature of the offences. He was described as of about average intellectual ability. He was found to have a personality disorder characterised by inadequate impulse control, above average predisposition to substance abuse and low tolerance for frustration. He was said to be remorseful and accepting of responsibility for the deaths of the victims. He expressed a hope of developing a more responsible life-style. He was assessed as having a moderate risk of recidivism.

18 There was also what was described as a “psychosocial assessment report” prepared by a social worker. The respondent maintained to the author that the race was not pre-planned and that he had never been a party to or member of a street racing group. The report added little to that contained in the psychological report or to the considerations in sentencing the respondent for manslaughter.

The Crown Appeal

19 The Judge described the offending as follows:

“It does not need words of mine to indicate that these were very serious offences. What we have is two men behaving in a totally irresponsible manner, with no regard for the rights and privileges of road users either themselves or of other people. They have in fact killed two very worthwhile, elderly members of the community because of their own stupidity and reckless acts. There can be no doubt that this represents a significant serious offence and indeed manslaughter in this case by unlawful and dangerous act, represents a major offence in the criminal calendar, as demonstrated by the fact that the legislature has seen fit to impose a maximum penalty of twenty-five years imprisonment. The community is fed up to the back teeth with men misbehaving themselves in driving motor vehicles and putting other persons at risk. In this case the risk actually materialised.

With respect, the use of the word “stupidity” to describe the conduct of the respondent falls well below a proper characterisation of what was gravely criminal conduct.

20 The Crown submitted that the Judge made three specific errors in imposing what was alleged to be a manifestly inadequate sentence. They were: allowing a discount of 25 per cent for the respondent’s plea; the treatment of delay as a mitigating factor; and failing to treat the respondent’s criminal and traffic record as an aggravating factor.

Alleged errors by the sentencing judge
(a) Discount for guilty plea

21 The first matter taken into account by the Judge as a mitigating factor was the plea of guilty. The respondent was charged on 31 July 2007. He did not plead guilty in the District Court until 11 September 2008. There was a contested committal proceeding. The explanation for that proffered by the respondent is that the prosecution was at that stage alleging that he failed to stop at a red light, a fact that the respondent disputed. But that allegation did not in any way prevent the respondent from indicating in the Local Court that he would plead guilty to manslaughter but deny that specific allegation. Had he been prepared to plead guilty the prosecution might well have abandoned that particular allegation. But had it not done so, the respondent should have received the benefit of his preparedness to plead guilty in the Local Court.

22 However, notwithstanding that the plea was not an early one, the Judge gave him the benefit of a discount of 25 per cent. His Honour stated:

…….As I have said he entered a plea of guilty on arraignment. It was strongly argued by the Crown that the utilitarian value of that plea represented somewhere between twenty and twenty-two and a half per cent in accordance with R v Thomson and Houlton. I do not agree. The fact is that [the respondent] has, by his plea prevented the necessity of a trial of the matter and the utilitarian value of his plea, in my judgment, being entered on arraignment, which is the first occasion that he’s appeared before this Court, should carry with it the maximum discount in accordance with the principles set forth in R v Thomson and Houlton. So I allow him a discount of twenty-five per cent for his plea.

23 On its face this is with respect a curious statement to make. The Judge purported to give a discount in accordance with the principles in R v Thomson and Houlton [2000] NSWCCA 309; 49 NSWLR 383 yet determined that the discount should be at the top of the range notwithstanding that the plea was not made at the earliest opportunity. But the application of the guideline in Thomson and Houlton would indicate that the discount should be less than the maximum because it was a late plea entered after the respondent had been committed for trial. There is nothing in the guideline judgment that suggests that the relevant date for the determination of the discount is the first appearance in the trial court or the date of arraignment.

24 It should be noted that the co-accused McDonald pleaded guilty to manslaughter before the Local Court and was committed for sentence. The Judge awarded him the maximum discount on the application of Thomson and Houlton. A member of the community would be entitled to ask, how can it be that two persons get the same discount for their pleas of guilty yet one pleads guilty at the first opportunity before a magistrate and the other pleads guilty only after having been committed for trial some 13 months after arrest? The answer is that, on a proper exercise of discretion in accordance with the principles laid down by this Court, the discounts cannot be the same. The Judge’s discretion miscarried in respect of the respondent.

25 The apparent explanation for the discount given to the respondent lies in what occurred during the submissions on sentence. The following exchange between his Honour and counsel took place after defence counsel indicated why committal proceedings had taken place. The Judge stated:

His Honour : Well yes [defence counsel] there’s one observation I want to make and that is and I made it recently and I’ll make it again. The practice in Penrith is to ensure that people are properly arraigned when they stand, come up before this Court, that is the charges are actually read out to them and they are asked to plead. It is not the practice in Sydney or in some other District Courts. The reason why I adopt that practice is that everybody knows that that‘s when the 25 per cent discount ceases.

Defence counsel : Yes your Honour.

His Honour : Now people say from time to time, well what about the person who pleas guilty before committal but really that goes more to the remorse aspect of the plea than it does to the utilitarian value of plea.

Defence counsel : Yes your Honour.

His Honour : So I’m minded at the moment, subject to hearing anything Mr Crown might wish to say to allow your client 25 per cent discount because he pleaded guilty on arraignment in this Court.

The Prosecutor contended that the discount could not be 25 per cent but conceded that it might be within the range of 20 to 22½ per cent. The Judge then went on;


HIS HONOUR: I understand what you are saying but Mr Crown the difficulty as I see it is that, as you know only too well, that the reason for the practice that I’ve adopted here is to make it absolutely crystal plain to everybody if they want the maximum discount for plea of guilty, it has to be done at or before arraignment.

PROSECUTOR: Of course your Honour in terms of Thomson and Houlton to get the real maximum discount for utilitarian benefit there should ideally be a plea in the Local Court as Mr McDonald did.

HIS HONOUR: Well even further it should be as soon as he’s spoken to by the police hold up you hands and say “yes”. But I think that people say well where do you draw the line, I think you draw the line at arraignment and you get an extra discount in effect for the remorse factor.

PROSECUTOR: I agree with the remorse factor your Honour, I don’t wish to be heard on that.

HIS HONOUR: If you plead.

PROSECUTOR: I agree with that your Honour, I don’t wish to be heard in terms of that but as far as utilitarian discount, the Crown still submits 20 to 22 and a half, there is a discount obviously for remorse by pleading at arraignment because that really, that’s the last chance he’s got to try and get, I suppose, to maximise his discount for remorse and contrition and I accept that.

26 With respect this exchange shows a number of errors by both the Judge and the prosecutor. They include: the fact that a plea in the Local Court is only a matter relevant to remorse; that there was a discount attributable to remorse either by itself or together with the plea of guilty; and that a practice set up by a particular judge or a particular court could affect the amount of discount that should be awarded for the utilitarian value of the plea of guilty. With respect this sentencing exercise occurred in November 2008 and yet the law and practice relating to discounts for pleas of guilty was by then so well established by judgments of this Court and so readily available to the bench and counsel that it is difficult to understand how the dialogue set out above could possibly take place.

27 In Thomson and Houlton, the Chief Justice, when discussing the extent of the discount for the utilitarian value of the plea, stated:

[154] There are however two circumstances which will generally affect the appropriate level of discount in a particular case:
(i) The time at which a plea is entered. A plea entered at committal has a more significant utilitarian benefit than a plea entered at first listing, which in turn has the greater benefit than a plea entered at the beginning of trial.
(ii) The complexity of the issues about which evidence will have to be gathered and adduced affects the value of the plea. The greater the difficulty of assembling the relevant evidence and the greater the length and complexity of the trial, the greater the utilitarian value of a plea.


It is clear that statements made by the Judge to the prosecutor failed to reflect that part of the guideline judgment in point (i) above.

28 The result was that the Judge’s discretion miscarried in relation to the exercise of his discretion in determining the value of the plea because he had set up a practice that was inconsistent with the decision in Thomson and Houlton and subsequent decisions of this Court. So far as his Honour was concerned, at least in the Penrith District Court and presumably only when his Honour was sitting in that Court, there was a regional practice that applied whereby the maximum discount was available when the plea of guilty came at arraignment regardless of when that occurred or whether there were committal proceedings in the Local Court. Hence the amount of the discount was being determined with insufficient consideration being given to the true utilitarian value of the plea.

29 With respect to the Judge, who was very senior and experienced, there is no place in the administration of the criminal law in this State for sentencing variations, including the amount of discount to be given for the plea of guilty, between District Courts or judges depending on where the court is sitting or whether there is in place a particular practice for the arraigning of accused persons who have been committed for trial to a particular court. Regional courts and judges of course may develop practices for the better management of their lists and the early determination of the issues at trial. They should be encouraged to do so. But those practices cannot be founded upon rewards for compliance, such as sentencing discounts, that do not accord with the general law of this State as determined by the judgments of this Court unless that variation has been prescribed by the legislature.

30 The Court is aware from sentencing decisions that have come before it that there is, or has been, a similar practice adopted by some judges in other regional courts. Discounts for pleas of guilty have been awarded depending upon when the plea of guilty comes in the proceedings in the District Court and disregarding what has taken place in the Local Court. Such a practice has no validity in law and is offensive to the principle that equal justice applies throughout the criminal courts of this State in accordance with established sentencing principles determined by the legislature or by the appellate courts.

31 As a matter of general practice, the maximum discount for the utilitarian value of the plea of guilty should be awarded only to those accused persons who plead guilty in the Local Court and continue that plea of guilty in the District Court. There may be a valid reason in the exercise of discretion for awarding the maximum discount where the plea of guilty does not occur until the District Court but that would be exceptional and arise from the peculiar factual situation in a particular case. The amount of the discount cannot depend upon the practice of the particular court based upon its administrative arrangements. It is difficult to see how, in the usual case, a plea of guilty on arraignment could justify a discount of more than about 15 per cent. There was nothing in the present case that justified a discount above that range.

32 It should not be necessary to do so, but, because there appears to be discrepancies in the application of the discount for the utilitarian value of the plea, it is apposite to set out in point form the principles laid down by this Court and to be applied by sentencing courts. Of course these are principles of general application and are subject to the scheme set out in Criminal Case Conferencing Trial Act 2008 and regulations made under that Act:

1. The discount for the utilitarian value of the pleas will be determined largely by the timing of the plea so that the earlier the plea the greater discount: Thomson at [154] ; Forbes [2005] NSWCCA 377 at [116].

2. Some allowance may be made in determining the discount where the trial would be particularly complicated or lengthy: Thomson at [154].

3. The utilitarian discount does not reflect any other consideration arising from the plea, such as saving witnesses from giving evidence but this is relevant to remorse: Thomson at [119] to [123]; nor is it affected by post-offending conduct: Perry [2006] NSWCCA 351 .

4. The utilitarian discount does not take into account the strength of the prosecution case: Sutton [2004] NSWCCA 225.

5. There is to be no component in the discount for remorse nor is there to be a separate quantified discount for remorse: MAK and MSK [2006] NSWCCA 381; Kite [2009] NSWCCA 12 or for the “Ellis discount”; Lewins [2007] NSWCCA 189; S [2008] NSWCCA 186.

6. Where there are multiple offences and pleas at different times, the utilitarian value of the plea should be separately considered for each offence: SY [2003] NSWCCA 291

7. There may be offences that are so serious that no discount should be given: Thomson at [158]; Kalache [2000] NSWCCA 2; where the protection of the public requires a longer sentence: El-Andouri [2004] NSWCCA 178.

8. Generally the reason for the delay in the plea is irrelevant because, if it is not forthcoming, the utilitarian value is reduced: Stambolis [2006] NSWCCA 56; Giac [2008] NSWCCA 280.

9. The utilitarian value of a delayed plea is less and consequently the discount is reduced even where there has been a plea bargain: Dib [2003] NSWCCA 117; Ahmad [2006] NSWCCA 177; or where the offender is waiting to see what charges are ultimately brought by the Crown: Sullivan and Skillin [2009] NSWCCA 296; or the offender has delayed the plea to obtain some forensic advantage: Stambolis [2006] NSWCCA 56; Saad [2007] NSWCCA 98, such as having matters put on a Form 1: Chiekh and Hoete [2004] NSWCCA 448.

10. An offer of a plea that is rejected by the Crown but is consistent with a jury verdict after trial can result in a discount even though there is no utilitarian value: Oinonen [1999] NSWCCA 310; Johnson [2003] NSWCCA 129

11. The discount can result in a different type of sentence but the resulting sentence should not again be reduced by reason of the discount: Lo [2003] NSWCCA 313.

12. The amount of the discount does not depend upon the administrative arrangements or any practice in a particular court or by a particular judge for the management of trials or otherwise.

The last of these principles is derived from the present judgment and is included for completeness.

33 There also appears to be some looseness in the use of the expression “a discount” that is apparent in the exchange between the prosecutor and the Judge set out above. Since Thomson and Houlton a “sentencing discount” should be taken to mean a reduction in the otherwise appropriate sentence by a quantifiable amount due to a specific policy consideration. Such a discount is applied after the otherwise appropriate sentence has been determined. There are two sentencing discounts that have been identified: a discount for the plea of guilty and a discount for assistance. Where both these discounts apply they should be combined: R v SZ [2007] NSWCCA 19; 168 A Crim R 249 at [11]. The High Court has indicated that there should be limited use of “arithmetical deduction” in determining an appropriate sentence: Markarian v The Queen [2005] HCA 25; 228 CLR 357 at [39].

34 There are also matters that mitigate the sentence. They are taken into account in the general synthesis to determine what is the appropriate sentence before the application of a discount. The mitigating factors include remorse and what has come to be known as the “Ellis discount”, although R v Ellis (1986) 6 NSWLR 603 was decided at a time when separate and discrete discounts in sentencing had not been recognised.

35 There is the possibility of at least confusion and perhaps even error occurring by referring to any general mitigating factor as giving rise to “a discount”. For example, in his sentencing remarks the Judge stated in reference to the respondent:

………I am satisfied that in fact he is remorseful and that is strongly shown by his plea of guilty. Subsection 3(k) is involved, that is the plea of guilty. I have already indicated how I intend to take it into account in relation to the utilitarian value of the plea. As far as the remorse factor is concerned a plea of guilty is always evidence or contrition and remorse or at least it is in most cases and it certainly is in this case. But I wish to make it plain that I have given one discount for remorse, not two.

36 In the present case the discount for the plea of guilty was unduly favourable to the respondent as a result of the erroneous exercise of discretion of the Judge and should have been no more than 15 per cent. However, in light of the fact that the prosecutor erroneously conceded before the sentencing judge that the discount should be 20 to 22½ per cent, I am of the opinion that the Court should not interfere with the sentence on this basis.

(b) Delay as a mitigating factor

37 The next mitigating factor taken into account by the Judge was delay between the date of the arrest of the respondent and the date of sentencing. The Judge stated:

The next matter to which I wish to refer is the delay that has occurred in this matter coming on for hearing. [The respondent] has been in custody now since 31 July 2007. That is a period of over fifteen months. Some of that delay has been obviously due to the necessity to conduct a committal hearing but nevertheless the fact is that the delay is significant and in accordance with the principles set forth by Sir Laurence Street in R v Todd, I take the delay into account as a discounting factor in [the respondent’s] favour because of the two matters mentioned by Sir Laurence, first that he has managed to behave himself in gaol and there’s no suggestion of anything other than progress and rehabilitation. Second, because he has had this sentence hanging over his head, as a sword of Damocles for a significant period of time.

38 The Crown contends that it was an error for the Judge to apply the principles arising from R v Todd [1982] 2 NSWLR 517 in the circumstances of this particular case. It is noted that the respondent had sought, and was granted, an order for the attendance of witnesses for cross-examination at the committal proceeding. The respondent was committed to stand trial on 18 June 2008 and the matter was listed for arraignment in the District Court on 31 July and 28 August 2008. On both occasions the matter was adjourned on the application of the respondent.

39 Todd was a very singular case where the sentencing proceedings for a “stale offence” had been delayed for 5 years while the offender served a period of custody in another state. The judgment of the Court is principally concerned with the issue of totality but so far as the Judge in the present case sought to rely upon the judgement of Street CJ, the headnote to the case adequately summarises the sentencing principle derived from that decision as follows:

(2) Where an interstate sentence has postponed a sentence hearing, fairness to the prisoner requires weight to be given to the progress of his rehabilitation during the term of the earlier sentence, to the fact that he has been left in a state of uncertain suspense as to the subsequent sentence and to the fact that when sentencing for a stale crime a considerable measure of understanding and flexibility is necessary.

40 Of course the principle in Todd has general application where there has been extensive delay for whatever reason between the date of the commission of the crime and the date upon which sentence is imposed. But the decision does not stand for the proposition that delay will result in leniency being afforded to the offender regardless of the reason for the delay, the extent of the delay, or the impact of the delay upon the offender: R v V (1998) 99 A Crim R 297. The degree to which leniency will be granted to the offender will depend upon the particular facts of the case. For example, little leniency is granted where the delay is a result of the offender fleeing the jurisdiction: R v Shore (1992) 66 A Crim R 37 and none where the offender has not disclosed other criminality at the time of the imposition of the earlier sentence: Lewins v R [2007] NSWCCA 189; 175 A Crim R 40. Where the offender is responsible for the delay “it is more difficult for him to call in aid the principle in Todd”: R v Carter [1999] NSWCCA 376.

41 I do not believe that Todd had any significant operation in the present case. The delay, while not to be encouraged, was not in the order of those cases where the principle has operated. It was largely due to the fact that the respondent wished to dispute a fact relied upon by the prosecution rather than to seek to avoid committal for the offences of manslaughter. There was no evidence of any deleterious impact upon the respondent by reason of the delay. He could have hardly been in any doubt about his fate given the fact that he must have known that he was guilty of a very serious offence, if not manslaughter, and that it was inevitable that a lengthy gaol sentence ultimately would be imposed upon him. The sword of Damocles analogy was misplaced in this case. The Judge must have taken into account any rehabilitation achieved by the respondent during the delay when deciding, as a mitigating factor, that he had “substantial prospects of rehabilitation”. The fact that he had been in custody during the period between arrest and sentence was taken into account by backdating the sentence.

42 In my opinion the Judge was in error in taking into account as a “discounting factor” the delay between charge and sentence.

(c) Relevance of the respondent’s record

43 The respondent’s criminal record has been outlined above. In respect of it the Judge stated:

………First of all his record is not such as would bring him within Veen No 2 and accordingly, in my judgment, the only effect of his previous record is that it disentitles him to that degree of leniency which he would have had, had he been a first offender…………

As far as his traffic record is concerned, he has had three previous offences of driving with above the prescribed concentration of alcohol. Two middle range and one being low range. He has also had an offence for driving whilst disqualified and various speeding offences. But I note that his last major driving offence was in 2001. Although there have been minor offences since that date.

44 The Crown submits that the respondent’s criminal and traffic record was such that the Judge ought to have found that, consistent with Veen v The Queen (No 2) [1988] HCA 14; 164 CLR 465 at 477, the record was an aggravating factor as demonstrating a “continuing disobedience to the law”.

45 The present submission is different to that put forward by the prosecutor before the sentencing judge. There the record was relied upon “not…to aggravate any sentence that can be imposed its to mitigate (militate?) against any degree of leniency that might be extended, particularly to [the respondent]”. Later the prosecutor confirmed that he was not relying upon the record as a matter of aggravation.

46 It is not generally appropriate on a Crown appeal for the Crown to seek to adopt a different stance in this Court than was taken before the sentencing judge. Certainly it would be a matter of considerable significance in the exercise of this Court’s discretion to refuse to intervene that the prosecutor led the sentencing court into error.

47 In any event, the determination of whether the criminal record was an aggravating factor or not was largely a matter of fact for the Judge to determine. This Court will not interfere in a factual determination unless there was no basis upon which the Judge could have reached the conclusion of fact that he did. I am unpersuaded that it was not open to the Judge to deal with the respondent’s criminal record in the way that he did.

The nature of the manslaughter alleged

48 It has been noted that the statement of facts identified the charges against the respondent as being manslaughter based upon an unlawful and dangerous act. Accordingly this is how the sentencing Judge referred to it in the passage of his sentencing remarks set out earlier in this judgment. It is not clear why it was thought necessary to identify the type of manslaughter for which the respondent was to be sentenced. But presumably this statement was made to distinguish this offence from a case of manslaughter based upon gross criminal negligence.

49 However it was made clear in R v Isaacs (1997) 41 NSWLR 374 at 381 that there is no hierarchy of manslaughter verdicts in which, for example, a manslaughter arising from provocation is necessarily more serious and worthy of a heavier sentence than a manslaughter arising from an unlawful and dangerous act. This is notwithstanding that provocation manslaughter involves an intention to kill or inflict grievous bodily harm. It is the particular facts of the killing and not the class of manslaughter that determines the seriousness of the offending: R v Dally [2000] NSWCCA 162; 115 A Crim R 582.

50 During the course of argument the Court was referred to the decision in R v Pullman (1991) 25 NSWLR 89. That was an appeal against a conviction for manslaughter where the appellant was alleged to have crossed an unbroken centre line to pass vehicles in front of him forcing a driver coming in the opposite direction to take evasive action. As a result the driver of the on-coming vehicle lost control and came into collision with a motor cycle and a vehicle going in the same direction as the appellant. The motorcyclist was killed and persons in the other vehicle seriously injured. Because there was no impact between the appellant’s vehicle and any other vehicle, the appellant could not be charged with the offence of culpable driving as that offence was then framed. Hence the appellant was charged with manslaughter and two offences under s 54 of the Crimes Act being by an unlawful act cause grievous bodily harm.

51 The appellant sought to have the convictions quashed on the basis that there was no evidence sufficient to support the charges. The manslaughter alleged an unlawful and dangerous act being a breach of the then relevant motor traffic regulation prohibiting the crossing of an unbroken centre line. This Court held, at 96-97 per Hunt CJ at CL, that the offence of manslaughter could only be based upon an act that was unlawful “otherwise than by reason of the fact that it infringes some statutory prohibition (by which term I include any regulatory prohibition)”. His Honour stated:

My conclusions, stated very shortly, are therefore:
(1) An act which constitutes a breach of some statutory or regulatory prohibition does not, for that reason alone, constitute an unlawful act sufficient to found a charge of manslaughter within the category of an unlawful and dangerous act.
(2) Such an act may, however, constitute such an unlawful act if it is unlawful in itself — that is, unlawful otherwise than by reason of the fact that it amounts to such a breach.

The result was that the appeal was upheld and the convictions quashed.

52 Applying this decision, the basis upon which the pleas of guilty to manslaughter were apparently made by the respondent and accepted by the Crown was misconceived, as was the basis upon which the Judge sentenced the respondent. The only unlawful act that has been identified in the respondent’s driving was a breach of the relevant regulation prohibiting the racing of motor vehicles on public roads. Yet according to the authority of Pullman that could not form the basis of unlawful and dangerous act manslaughter.

53 The only reason that the decision in Pullman was brought to the attention of the Court was because counsel for the respondent sought to use it to support an argument that, while the sentences imposed upon the respondent might have been inadequate had the charges been based upon gross criminal negligence, they were not so for charges based upon unlawful and dangerous act. The subtleties and ingenuity of that argument need not be considered because it seems to me to have an insuperable difficulty in that it is contrary to Isaacs.

54 Notwithstanding the conflict between the basis of the charges and the decision in Pullman, neither of the parties sought to argue that Pullman was wrongly decided. When the Court raised the suggestion that the matter might be returned for further consideration to the District Court, including, if necessary, an application that the respondent be permitted to withdraw his pleas, counsel for the respondent argued that such a course would be unfair to his client as it would make him liable for re-sentencing with the risk of a greater sentence that would not be tempered by any discretion such as this Court exercises on a Crown appeal. This argument seems to me to have merit. In effect it would be to subject the respondent to triple jeopardy.

55 At the present time, apart from the offences of murder and manslaughter, the Crimes Act contains the following provisions: s 51A, predatory driving causing grievous bodily harm; s 52A, dangerous driving; s 53, furious driving; and s 54, negligent act causing grievous bodily harm. Section 52A contains the following offences: dangerous driving causing death, maximum penalty 10 years; aggravated dangerous driving causing death maximum penalty 14 years; dangerous driving causing grievous bodily harm, maximum penalty imprisonment for 7 years; and aggravated dangerous driving causing grievous bodily harm, maximum penalty imprisonment for 11 years. The circumstances of aggravation are set out in s 52A(7) and include: having a concentration of alcohol of at least 0.15; driving at more that 45 kph above the speed limit; driving to escape police pursuit; and driving while driving skills are very substantially impaired by the influence of a drug or drugs.

56 As the law presently stands, there is a rational, logical and cohesive hierarchy of offences concerned with the infliction of death or serious injury by the use of a motor vehicle. The offences range from negligent driving causing grievous bodily harm (s 42(1)(b) of the Road Transport (Safety and Traffic Management) Act with a maximum penalty of 9 months imprisonment) through the driving offences in the Crimes Act to manslaughter by gross criminal negligence. All of these offences involve varying degrees of negligence, however the actual conduct may be described, ranging from a lack of care and proceeding through dangerousness to culpable negligence: R v Buttsworth [1983] 1 NSWLR 658. This structure is acknowledged by s 52AA(4) that provides that on a trial for an offence of manslaughter or an offence under s 53 or s 54 a jury can return a verdict of guilty of an offence under s 52A. It is also seen in s 52A(6), a provision that prevents a person being convicted of both manslaughter and an offence under s 52A arising from the same facts.

Are the sentences inadequate?

57 In my opinion the prosecutor ought not to have identified the manslaughter as based upon unlawful and dangerous act. According to Pullman it was not open to charge manslaughter on this basis. But in any event, it was unnecessary and liable to distract the sentencer from a proper assessment of the criminality of the driving by introducing the concept of an unlawful act. That was particularly so where the unlawful act is the mere breach of a traffic regulation. It is an offence under s 40(1) of the Road Transport (Safety and Traffic Management) Act to take part in a race between vehicles on a road, and the maximum penalty for that offence is a fine. But the offence charged was manslaughter and it carried a maximum penalty of imprisonment for 25 years. That was the offence to which the respondent pleaded guilty and that was the offence for which he was to be punished however it may otherwise be described.

58 Of course the offence of manslaughter is notorious for the range of conduct falling within its scope and hence the width of the sentencing discretion when punishing for that offence. This is no doubt why there is no standard non-parole period prescribed for the offence. However, when sentencing for the offence, like all offences, the court must take into account the maximum penalty prescribed by the legislature. Further in cases of motor manslaughter, in my opinion, the sentence to be imposed must also take into account the fact that there is a structure of offences dealing with the occasioning of death through driving and that manslaughter stands at the very pinnacle of that structure as the most serious offence. In particular the sentence must take into account that there is a less serious offence of causing death by driving under s 52A(2) of the Crimes Act that carries a maximum penalty of imprisonment for 14 years. Of course it does not follow that the sentence for manslaughter must exceed the maximum for the less serious offence or that the sentence for manslaughter is in some way calculated using the maximum sentence for the other offence: Markarian at [31].

59 In the present case the Judge failed to take into account the relevance of the range of driving offences presumably because the offence was identified as manslaughter by unlawful and dangerous act. In my view that was an erroneous approach caused by the prosecutor. But, however the manslaughter was described, it was an offence of the utmost seriousness because of the danger it posed to other persons in the vicinity, because of the flagrant breach of the road rules involved and because the loss of life was almost inevitable. It was more serious than other motor manslaughter cases to which the Court’s attention was taken because it involved three vehicles all being driven dangerously in a joint enterprise and, hence, the potential dangerousness to others in the vicinity was increased dramatically from a case involving the dangerous driving of a single vehicle. In my opinion that fact alone takes this offence well beyond the seriousness of the criminality considered in R v Cameron [2005] NSWCCA 359; 157 A Crim R 70.

60 Further, unlike many other cases of dangerous driving, there were opportunities for the respondent to come to his senses while the vehicles were stopped at red lights. The respondent was not so befuddled by alcohol or drugs that he could not have realised the very great dangerousness of his conduct and desisted. But these were occasions seen merely as part of the race, allowing the vehicles to accelerate away at high speed after coming together at the stoplights.

61 The respondent saw very great significance in a concession by the Crown in submissions to this Court that the sentences imposed would have been appropriate had the respondent been charged with offences under s 52A(2). The Crown saw this fact as supporting the proposition that the sentences were inadequate for offences of manslaughter. The respondent saw this concession as an admission that the sentences were not manifestly inadequate.

62 The respondent submitted that it was not axiomatic that a sentence for manslaughter should be longer than a sentence for the same conduct and consequences charged under s 52A of the Crimes Act. He relied upon statements of Grove J in Cameron to support that proposition. But his Honour was there indicating that, because the offence of manslaughter is more serious than an offence under s 52A, it should not be treated as if it were an offence under s 52A. There is nothing in the judgment of Grove J that suggests that a sentence for manslaughter might be the same or less than a sentence imposed for similar conduct charged under s 52A.

63 As I understand the respondent’s argument it was that, because his conduct could amount to an offence under s 52A(2), he should receive no heavier sentence than if he had been charged with that offence. This is notwithstanding that it must be accepted that manslaughter is, as a category of offence, more serious than an offence of dangerous driving and that there are very different maximum penalties prescribed for the two offences. As I have already indicated, this argument is based upon the fact that the offences charged were of unlawful and dangerous act manslaughter and not gross criminal negligence manslaughter. Quite frankly, if the respondent’s argument were correct, it would be an affront to logic, common sense and any rational application of sentencing principle that the same offender can receive the same sentence regardless of the nature of the offence charged, or the applicable maximum penalty. If this is the result of having motor vehicle manslaughter based upon unlawful and dangerous act, then it presents the best possible reason for affirming the correctness of Pullman. The respondent’s argument should be rejected.

64 There were two errors by the trial judge that I have identified. But I do not believe that, absent those errors, very different sentences would have been imposed. It was not these errors that resulted in what, in my view, were sentences that were manifestly inadequate to a very significant degree. The Judge must have very substantially underestimated the criminality involved in the offences to have imposed the sentences that he did. That may have been because they were described as unlawful and dangerous act manslaughters. There was little in the respondent’s subjective circumstances that called for leniency. He could not even avail himself of youth. There was nothing in the psychological reports that mitigated his criminal responsibility for the death of the victims or called for a moderation of sentences commensurate with his culpability for the death of two persons.

65 Each of the sentences imposed upon the respondent was itself manifestly inadequate. A sentence of 7 years with a non-parole period of 4 years for the offence of manslaughter relating to either one of the two victims reveals that the Judge’s assessment of the criminality of the respondent must have fallen well short of what it should have been. The inadequacy of the sentences was compounded by an accumulation between the two sentences of only 2 years.

66 The very least sentence that could have been imposed upon the respondent was, in my opinion, a total sentence of 12 years with a non-parole period of 9 years. Had I been the sentencing judge, I would have imposed a greater sentence. But it is the sentence that I would propose if the Crown appeal were allowed in recognition of the fact that this is a Crown appeal and the application of the principle of double jeopardy.

Should the Court intervene?

67 It has been noted that there was a co-offender, McDonald, who was also sentenced by his Honour. For some reason, which the Crown Prosecutor appearing on the appeal could not explain, the Director of Public Prosecutions did not appeal against the sentence imposed upon McDonald. If the sentence of the respondent were now increased, he would have a justifiable sense of grievance with the sentence imposed upon his co-offender. He would face a minimum period of custody of 9 years, whereas his co-offender, who it could be argued was equally as culpable for the deaths of the victims, would be serving a minimum period of custody of 5 years. There is nothing in their respective subjective circumstances that could possibly justify such different sentences nor could the disparity be justified on the basis that it was the respondent’s vehicle that came into impact with the vehicle driven by the Howles.

68 Counsel for the respondent submitted that this fact alone would cause the Court to refrain from interfering in the sentence imposed upon the respondent. He submitted that this Court would not knowingly create unjustified disparity between the sentences imposed upon joint offenders. In this particular case it was argued that, even if the Court viewed the sentence of McDonald as manifestly inadequate, that finding could not be used to justify the resulting disparity between his sentence and that of the respondent if the Crown appeal were allowed.

69 It is well established that this Court will not reduce a sentence that is otherwise appropriate simply because there is disparity between it and a manifestly inadequate sentence imposed upon a co-offender: R v Diamond (NSWCCA, 18 February 1993, unreported); R v Chen [2002] NSWCCA 447. That is because the sense of grievance held by the offender is unjustified where the co-offender’s sentence is unduly lenient to a significant degree. This is so even where the co-offender’s sentence was imposed by this Court: R v Ismunandar and Siregar [2002] NSWCCA 477; 136 A Crim R 206. There reliance was placed upon the judgment of Gleeson CJ in R v Rexhaj (NSWCCA, 29 February 1996, unreported) where his Honour stated:

The principle which underlies ... [intervention for disparity] ... is that inconsistency in punishment may lead to an erosion of public confidence in the administration of justice ... . There are, however, other things which may also lead to an erosion of public confidence in the administration of justice, and they include the multiplication of manifest errors. That is why numerous judges have stressed the unattractiveness of responding to one wrong decision by making another wrong decision.

70 Here there has been, in my opinion, a wrong decision by the sentencing Judge. But it cannot be said that the refusal to interfere to correct that decision is itself a wrong decision. That is because the purpose of a Crown appeal is not simply to increase an erroneous sentence imposed upon a particular individual. It has a wider purpose, being to achieve consistency in sentencing and the establishment of sentencing principles. That purpose can be achieved to a very significant extent by a statement of this Court that the sentences imposed upon the respondent were wrong and why they were wrong. The decision of this Court will have an effect on sentencing for motor manslaughter cases even though the Crown appeal is dismissed in the exercise of discretion.

71 It may well be that members of the public, either in general or in the case of particular individuals, will retain a sense of grievance that the respondent was not appropriately sentenced for his conduct and its consequences. But that grievance, if it exists, will be a consequence of the conduct of the Crown both before the sentencing judge and before this Court. It is not a result of the failure of this Court to recognise the seriousness of the offences and require that appropriate punishment be imposed upon such offenders. General deterrence, which is of the utmost importance in this case, will be achieved by the pronouncement of this Court as to the type of penalty that should be imposed upon similar offending in the future. Although the sentence imposed upon the respondent is manifestly inadequate, it is still a significant sentence for a person of the applicant’s age and record.

72 In my opinion having regard to the nature and purpose of a Crown appeal and the consequences that would flow were the Court to allow the Crown appeal against the respondent in circumstances where the Crown has not appealed against the sentence of the co-offender, this Court must exercise its discretion to dismiss the appeal.

73 I propose that the Crown appeal be dismissed.

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