R v Skrill

[2002] NSWCCA 484

CITATION:	Regina v Skrill [2002] NSWCCA 484
FILE NUMBER(S):	CCA 60432/02
HEARING DATE(S):	20 November 2002
JUDGMENT DATE:	20 November 2002
PARTIES :	Regina v Ryan Michael Skrill
JUDGMENT OF:	Heydon JA at 1 & 83; Hulme J at 5; Carruthers AJ at 9

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	02/11/0212
LOWER COURT JUDICIAL OFFICER :	His Honour Judge Shillington QC

COUNSEL :	Crown - P. G. Ingram Respondent - P.R. Boulten
SOLICITORS:	Crown - S.E. O'Connor Respondent - D.J. Humphreys
CATCHWORDS:	Sentencing - Crown appeal - one count of dangerous driving causing death - one count of aggravated dangerous driving causing grievous bodily harm - whether sentencing judge erred in imposing concurrent sentences - whether sentences manifestly inadequate.
LEGISLATION CITED:	Crimes Act 1900, s 52A(2), s 52A(4) Crimes (Sentencing Procedure) Act 1999, s 44(2)
CASES CITED:	Pearce v The Queen (1998) 194 CLR 610 R v AEM; KEM; MM [2002] NSWCCA 58 R v Comber (Unreported, CCA 11/11/98) R v Dunlop [2001] NSWCCA 435 R v Gleeson [2000] NSWCCA 101 R v Hanlon [2000] NSWCCA 55 R v Hammoud (2000) 118 A Crim R 66 R v Jurisic (1998) 45 NSWLR 209 R v Kalanj (1997) 98 A Crim R 505 R v McKinney (1999) NSWCCA 51 R v Musumeci (Unreported, CCA 30/10/97) R v Sen [1999] NSWCCA 199 R v Whyte [2002] NSWCCA 343
DECISION:	By majority, appeal allowed. Sentences imposed by Shillington DCJ quashed and in lieu thereof the following sentences are imposed: On the second count, sentence of three years to date from 12/7/02 and to expire on 11/7/05. On the first count a head sentence of six years to commence on 12/1/03 and to expire on 11/1/09. In relation to the first count a non-parole period of two and a half years fixed to date from 12/1/03 and to expire on 11/7/05. No non-parole period fixed in relation to the second count. Disqualification from holding a driver's licence for three years to date from 10/3/01 confirmed.

60423/02

HEYDON JA
HULME J
CARRUTHERS AJ

Wednesday, 20 November 2002

regina v Ryan Michael skrill

Judgment

1 HEYDON JA: This Crown appeal should be dismissed.

2 It would be an undue waste of time to give detailed reasons for that conclusion since this judgment is a dissenting judgment. It is sufficient to note that the arguments advanced with his usual skill by Mr P Boulten for the respondent for dismissing the appeal were powerful and in my opinion correct.

3 At the heart of these arguments lay the general findings of the immensely experienced sentencing judge recorded on pages 3 and 4 of his brief but clear and direct remarks on sentence. Those findings were amply supported by detailed evidence and by impressions which the judge formed of the respondent in the witness box. In short, the judge found that the crimes which the respondent has committed have had a deeply damaging effect on him and that effect is likely to last for the rest of his life.

4 For that reason, bad though the objective circumstances were, the attack on the five year head sentence on the first count fails. It also causes the attack on the two year non-parole period, selected after the sentencing judge made an unimpeachable finding of special circumstances, to fail. So far as the attack on the sentencing judge’s decision not to accumulate the sentences, which is a discretionary decision, is concerned, even if, which may be doubted, it is valid, the sentence on the second count is unduly high. The effect of that error tends to nullify the effect of any erroneous failure to accumulate. Further, the court in its discretion in a Crown appeal involving considerations of double jeopardy ought not to intervene on that ground alone, particularly in view of the impact of his crimes on the respondent.

5 HULME J: I agree with the orders proposed by Justice Carruthers and with his Honour’s recommendation. Subject to what follows I agree also with his Honour’s reasons.

6 The sentencing Judge, in my view, made a number of errors other than the including of a non parole period which, having regard to the respondent’s criminality, was too low, the imposition of identical sentences for offences which did not merit identical punishment and a failure to accumulate the sentences he imposed, or possibly to provide an explanation why he did not take that course. In the light of those errors I think it appropriate to revisit the totality of the various aspects of his Honour’s sentence.

7 My own view is that the sentence ordered by Justice Carruthers in respect of the second offence of three years is, having regard to the criminality, probably too low, but, given I am in agreement with his Honour as to the result of the appeal, it is unnecessary that I deal further with that matter. I mention it solely because I would not wish the three years suggested by his Honour to be a precedent for cases such as this where the offender’s conduct was not just to drive under the influence of alcohol but to drive with so much alcohol in his blood, and also under the influence of drugs.

8 I also do not find it necessary to consider whether the sentences which are to be imposed should be influenced by current campaigns arising in consequence of the road toll. I am content to base my conclusion on the terms of the statute, the terms of the guideline judgments, and normal sentencing principles.

9 CARRUTHERS AJ: This is a Crown appeal against the alleged inadequacy of sentences imposed upon the respondent, Ryan Michael Skrill, by his Honour Judge Shillington QC at the Sydney District Court on 12 July 2002.

10 The subject offences were committed on 11 March 2001 when the respondent was twenty-two years of age. On 26 February 2002 the respondent pleaded guilty in the Local Court to one charge of aggravated dangerous driving causing death under s 52A(2) of the Crimes Act 1900 (hereinafter “the Act”) which offence carries a maximum penalty of fourteen years imprisonment.

11 This charge was that the respondent:

“.... on 11 March 2001, at Beacon Hill in the State of New South Wales, did drive a vehicle, to wit motor vehicle, engine number A20A44301683, when it was involved in an impact occasioning the death of Kelly Orr. At the time of impact the said Ryan Skrill was driving the vehicle under the influence of intoxicating liquor, in circumstances of aggravation, namely the said Ryan Skrill had in his blood the proscribed concentration of alcohol and the reading at the time of the accident was 0.203 grams per 100 millilitres of blood.”

12 The respondent pleaded guilty at the same time to a charge of aggravated dangerous driving occasioning grievous bodily harm under s 52A(4) of the Act, which offence has a maximum penalty of eleven years imprisonment. This charge was in similar terms to the first charge except that it was one of occasioning grievous bodily harm to Paul Martin, also a passenger in the vehicle.

13 The respondent adhered to the pleas of guilty when the matter came before his Honour Judge Shillington QC in the District Court on 12 July 2002. On that date his Honour sentenced the respondent as follows:

(i) With regard to the first count, the respondent was sentenced to imprisonment for five years to commence on 12 July 2002 and to expire on 11 July 2007 with a non-parole period of two years to expire on 11 July 2004. The respondent was disqualified from possessing a driving licence for a period of three years to date from 10 March 2001.
(ii) With regard to the second count the respondent was sentenced to an identical head sentence and non-parole period as those under the first count. Thus both sentences were to be served concurrently.

14 His Honour found special circumstances pursuant to s 44(2) of the Crimes (Sentencing Procedure) Act 1999, being the youth of the respondent, the fact that he had no prior convictions of any kind, that he was obviously going to have a very difficult time whilst in custody, and finally, his need for psychiatric treatment which was recommended by his Honour whilst he is in custody.

15 By letter dated 18 July 2002, the Director of Public Prosecutions informed the respondent that consideration was being given to the question of a Crown appeal in relation to the sentences imposed. On 2 August 2002, the Director signed the notice of appeal and on 6 August a true copy of the notice of appeal was served upon the respondent.

16 The unchallenged evidence before his Honour disclosed the following sequence of events.

17 On the evening of Saturday, 10 March 2001 the respondent attended the twenty-first birthday party of the deceased, Ms Kelly Orr (his then girlfriend) at her parents’ home at Cromer. The respondent drove himself and two others to the party in a Honda Accord sedan WWA-885, which belonged to a friend, Stewart Wauchop. This vehicle was at the time unregistered and uninsured. They arrived at about 7.30 pm. Some time later Mr Wauchop decided to leave the party and the respondent drove him home in the Honda Accord sedan. Mr Wauchop told the respondent to leave the car at Ms Orr’s home after the party and that he, Mr Wauchop, would collect it the next morning. The respondent then drove back to the party in Mr Wauchop’s car.

18 At the conclusion of the party Ms Orr arranged with the respondent and others to drive to a venue at Manly to continue the celebrations. At about 12.30 am on Sunday morning March 11, the respondent sat in the driver’s seat of the Honda. Ms Orr sat in the front passenger seat and three young men sat in the rear of the vehicle, namely, Paul Martin, Matthew Lough and Bradley Perriott.

19 The respondent drove the car away from the house towards a roundabout. As he was negotiating the roundabout, the back wheels of the car skidded. The respondent stopped the car for a short period and then continued on the journey. At the intersection of Warringah Road and Beacon Hill Road, the respondent brought the car to a stop at a set of red lights and then went through the red light.

20 At about 1 am the respondent drove the car in a south easterly direction along Beacon Hill Road, Beacon Hill which has a downhill grade. The speed limit controlling this part of the road was sixty kilometres per hour. The respondent lost control of the vehicle as he was negotiating a sweeping left turn. At the time he was travelling at an excessive speed. Matthew Lough, who was sitting in the rear of the car at the time of the accident, informed the police, after the accident, that it felt as if they were going “very fast” down Beacon Hill Road and he noticed that the car was in fifth gear. Mr Lough informed the police that he looked at the speedometer and he thought it indicated a speed of 140 kilometres per hour.

21 The car crossed over double unbroken separation lines at the apex of the curve and crossed on to the incorrect side of the road. The car then collided with an Armco railing causing it to flip over. The vehicle came to rest on its roof on a brick fence. A police officer who attended the scene, Constable Cheryl Rees, measured the car’s brake marks to be 56 metres in length.

22 As a result of the collision Ms Orr was trapped in the passenger seat of the upturned car. The front passenger side of the car was crushed by the impact. Ms Orr died in that position due to asphyxia exacerbated by diffuse vascular injury of the brain and thoracic spinal haemorrhage.

23 The rear centre passenger, Paul Martin, sustained a laceration to his bowel and was admitted to surgery where the bowel was sutured and his appendix removed. He also suffered contusions on his forehead and tenderness in the lumbar spine. He was discharged from hospital on 18 March 2001.

24 The rear nearside and offside passengers, Matthew Lough and Bradley Perriott, were admitted to hospital and treated but were released shortly thereafter with minor injuries.

25 The respondent sustained a broken ankle. The respondent was taken to hospital and at 2.20 am a blood sample was obtained. Analysis revealed that he had a blood alcohol level of not less than 0.203. Also present in his blood were the drugs delta-9-THC at 0.013 milligrams per litre and delta-9-THC acid at 0.027 milligrams per litre, the active constituents in cannabis.

26 Dr Judith Perl, forensic pharmacologist, has estimated that, at the time of the collision, the respondent’s blood alcohol concentration would have been within the range of 0.182 grams and 0.238 grams per 100 ml. Dr Perl was of the opinion that a driver with a blood concentration of 0.182 grams per 100 ml, or above, would be under the influence of alcohol to the extent that driving ability would be very significantly impaired.

27 Dr Perl also noted that the blood concentrations of delta-9-THC indicate usage of cannabis by the respondent within one to two hours of the collision and this would have had an additive effect in impairing driving ability.

28 When subsequently examined, the Honda Accord sedan revealed no apparent defect which may have contributed to the cause of the collision.

29 The respondent attended Parramatta Police Station on 24 May 2001 in the company of his solicitor. He was arrested and cautioned. The respondent declined to be interviewed. However, he did provide a short typed statement in the following terms:

“My full name is Ryan Michael Skrill and I reside at 51 Smith Street, Manly.
On the evening of the 10th March 2001, I attended a 21st Birthday at 11 Carrington Avenue, Cromer. Sometime in the early hours of the 11 March 2001, I left the party in the company of a number of other guests. We left in a Honda Accord motor vehicle, registered number WWA-885 owned by Stewart Wauchop of 76 Queenscliff Road, Queenscliff. I was the driver of the vehicle.
We intended to meet other party guests at Manly. We were travelling down Beacon Hill Road which has a steep gradient. As the car travelled down the road it picked up speed. I was not familiar with the car as I had not drive (sic) it before that evening. The roadway was wet and the brakes and steering did not feel right. As we approached a bend in the road I applied the brakes and the car skidded at which point I lost control of the vehicle. I heard a loud bang and the car was stationary.”

30 His Honour had before him a statement by Paul Martin dated 19 May 2002. He deals briefly with the manner of driving of the respondent. I note the following passages:

“8. We then got to the car, it was just the three of us at that time, Kelly Ryan and me. Kelly then walked off and then got another two guys and they came with us. I got in the middle back seat. Ryan was in the drivers seat. There was really loud punk trashy music on. I came (sic) remember when we left that he screeched the wheels, I thought that he was showing off or something. I remember that we were cruising and I was pretty much laying back, the music was clearing, I was dazing out the back seat.
9. The next thing that I remember is that there was a loud screech from the car and someone yelled, ‘Slow down’, I don’t remember who yelled that. I am not sure which got my attention first the screech or the yell. But when I was alerted to the screech, I then felt that the car was going really fast. I then shut my eyes and then thought that we were going to hit something.
10. The next thing that I remember is waking up in the car, I was hanging upside down, the lap sash seat belt was really killing my stomach. ...”

31 As a result he has a ten inch scar on his stomach. As at 19 May 2001, he was regularly seeing his doctor and attending physiotherapy each week.

32 His Honour also had before him a statement from Stewart O’Brien, dated 7 July 2001. Mr O’Brien had been at the Cromer party but left that party to attend another party at Beacon Hill. As he could not get a taxi he decided to walk to the second party. He turned left into Beacon Hill Road and reached the traffic lights. I now quote paragraphs 5, 6, 7 and 8 of his statement.

“5. I stopped to take my backpack off to get my cigarettes out. I then heard the noise of a car, the engine was revving really hard, they were giving it heaps. I then looked around as I was not sure where it was coming from at first.
6. I then looked up Beacon Hill Road and I saw a grey car coming around the corner like a bat out of hell, it was definitely speeding. The car to me didn’t look like it was on the correct side of the road, it looked like he was a little sideways on the wrong side, I’m not quite sure but he was not taking the corner normally. I knew that he was not going to make the corner.
7. The car then came into the corner and the car went a little bit sideways, I could see the back going out, the car was not taking the corner at all and the passenger side was coming around, not the drivers as you would expect if he was to enter the corner correctly. The car then went over the other lanes on the wrong side of the road. The front tyre, I’m not sure if it was the front tyre only or completely front on has then hit the gutter. As he has hit the gutter the car has then spun around, the back has spun towards me, the back went up, as did the whole car, it went a fair bit up. As the car was airborne on the way down, the car then hit the gutter again, the front passenger side then hit the gutter first and then the rear passenger side hit the gutter, the hit with the gutter was not two separate hits but continuous flowing, the hits were very quick in sequence. This caused the car to flip straight up, airborne again, I was then looking at the back of the car, it then landed hard down on its roof against a tree and a small brick wall. It did not roll at all it was just straight up and then down.
8. When the car landed, I could see the rear of the car and the passenger side was down the bottom, on the ground.”

33 After having been removed from the vehicle the respondent was taken to Manly Hospital. Having arrived at the hospital he became extremely agitated and was subsequently admitted to the psychiatric ward in what was referred to as a “suicidal state”.

34 After the accident the respondent received psychological counselling from a trainee psychologist at Life Line in Balgowlah.

35 According to a report dated 4 April 2002 from Mr Kevin Fennell, the trainee psychologist, the respondent has over the period of counselling, re-established his social and occupational functioning and has a good sense of reality. He is reported as having regularly expressed concern for Ms Orr’s family and reports periodic suicide ideation, guilt, grief and loss, and a sense of detachment from society.

36 There was also a report from Dr John A. Roberts, a forensic psychiatrist, dated 28 May 2002.

37 The history which the respondent gave to Dr Roberts included one of experimentation with marihuana, ecstasy, amphetamines and cocaine. He also described what Dr Roberts referred to as classical features of excessive alcohol ingestion.

38 Dr Roberts’ conclusions were as follows:

“ SUMMARY AND OPINION:
Mr Ryan Michael Skrill presents as a young man who has been involved in a tragic accident, in which he was the driver of a vehicle while under the influence of alcohol. The accident resulted in the death of his girlfriend and a serious injury to another person.
Subsequent to that incident he developed significant feelings of depression with suicidal ideation which resulted in him being admitted for a period of two weeks to the psychiatric ward of Manly District hospital. He is receiving counselling from a trainee psychologist and is taking homeopathic preparations, namely St John’s Wort.
Mr Skrill appears to be benefiting from the sessions that he has with a trainee psychologist but it would be my opinion that a trainee psychologist is inadequately equipped to deal with the problems, complex and as serious as that from which Mr Skrill now suffers.
His condition which is associated with depression, suicidal ideation and understandable feelings of guilt and self blame, can be conceptualised as comprising elements of Post-traumatic stress disorder, an Adjustment Disorder with Depression and there is potential for the generation of a Pathological Grief reaction.

All of these conditions are associated with depression, anxiety and of there being in all such cases, a risk of self harm. I am of the view that Mr Skrill should be in receipt of conventional antidepressants and that treatment should be undertaken by a psychiatrist.
Mr Skrill clearly understands his culpability in regard to this matter, the loss of his girlfriend and the circumstances in which he now finds himself are at the basis of his current depression. The nature of these matters would lend him liable to predisposed to future episodes of depression and it is improbable that Mr Skrill will ever, regardless of the passage of time and treatment, be totally free of feelings of depression, guilt and self blame that would inevitably come out of an involvement in a matter such as this.
In regard to Mr Skrill’s future management, I am of the view that his depressive state renders him liable to be at risk of self harm.
In the event of Mr Skrill being sentenced to custodial sentence, I would most strongly recommend that he be referred to the Prison Psychiatric Services, such that he may obtain specialist attention for his depression and to ascertain that any potential suicidal risk is minimised.”

39 His Honour also had before him a number of references recording the respondent’s prior good character.

40 The respondent gave evidence before his Honour. He frankly admitted that he was “too drunk to drive” when he left the party for Manly. The respondent was an apprentice cabinet maker at the time of the accident, although shortly prior to the accident, he had been made redundant despite the fact that he only had six months remaining to complete his apprenticeship.

41 In his remarks on sentence, his Honour said that, in his view, the respondent was liable to future episodes of depression and that it was improbable that he will ever, regardless of the passage of time or treatment, be totally free of feelings of depression, guilt, and self blame that would inevitably come out of an involvement in a matter such as this.

42 The first basis upon which the Crown relied in this appeal was that his Honour erred in failing to impose sentences in conformity with the principles identified in Pearce v The Queen (1998) 194 CLR 610, in relation to the terms of the individual sentences and any accumulation of those sentences.

43 Specific reference was made to the following passage from the joint judgment of McHugh, Hayne and Callinan JJ (at 624):

“A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well, of course, as questions of totality.”

44 Thus it was argued that his Honour erred in imposing concurrent sentences for these two serious offences.

45 There is no guideline specifically dealing with aggravated dangerous driving occasioning death under s 52A(2) of the Act.

46 We were in argument referred to the guideline judgments in R v Jurisic (1998) 45 NSWLR 209 and the more recent case of R v Whyte [2002] NSWCCA 343, which was not available, of course, to the sentencing judge in the instant case. Reference was also made to R v McKinney (1999) NSWCCA 51.

47 It is not necessary to review these cases. I note that in Whyte, Spigelman CJ said at par [204] that a frequently recurring case of an offence under s 52A has the following characteristics:

(i) young offender;
(ii) of good character with no or limited prior convictions;
...........
(vii) death or permanent injury to a single person;
(viii) the victim is a stranger;
(ix) no or limited injury to the driver or the driver’s intimates;
(x) genuine remorse.

To this the Chief Justice added a plea of guilty of limited value.

48 Here was a young offender with good character with no prior convictions. There was death to one person and permanent injury to another. The victims were not strangers. They were, particularly in the case of Ms Orr, intimates of the driver. The respondent has, of course, shown genuine remorse.

49 The Chief Justice stressed at par [205] that in determining the appropriateness of full time custody and the length thereof, the sentencing judge must give close attention to the degree of moral culpability involved. This is a critical component of the objective circumstances of the offence.

50 At pars [216]-[217] the Chief Justice enunciated a list of aggravating features for such offences, namely,

(i) Extent and nature of the injuries inflicted.
(ii) Number of people put at risk.
(iii) Degree of speed.
(iv) Degree of intoxication or of substance abuse.
(v) Erratic or aggressive driving.
(vi) Competitive driving or showing off.
(vii) Length of the journey during which others were exposed to risk.

51 In my view each of the above features of an aggravating nature is appropriate to the present case. However, the remaining four are not relevant. They are:

(viii) Ignoring of warnings.
(ix) Escaping police pursuit.
(x) Degree of sleep deprivation.
(xi) Failing to stop.

52 The Chief Justice confirmed in Whyte what he had said in Jurisic, namely, that the presence of features (iii)-(ix) may indicate that the offender has abandoned responsibility for his or her own conduct. When the presence of such a factor can be so described, then it can be said to be present to a material degree for purposes of determining an appropriate sentence.

53 The Chief Justice then went on to say at pars [229]-[231] that the guideline for offences against s 52A(1) and (3) for the typical case identified above should, where the offender’s moral culpability is high, be a full time custodial head sentence of no less than three years (in the case of death) and two years (in the case of grievous bodily harm).

54 Further, that in the case of the aggravated version of each offence under s 52A, there should be an appropriate increment to reflect the higher maximum penalty and what will generally be a higher level of moral culpability. Other factors, such as the number of victims will also require an appropriate increment.

55 Applying these principles to the instant case, aggravating features (i) to (vii) all apply to a serious degree. The evidence clearly demonstrates that unfortunately this is a case where the respondent must be taken to have abandoned responsibility for his conduct when in control of the motor vehicle on the night in question. Inevitably the conclusion must be reached that there was moral culpability of a high level.

56 For present purposes, I do not see that the judgment of this Court in Whyte materially alters the guidelines enunciated in Jurisic which were available at the time of sentence to Judge Shillington.

57 In his careful submissions on behalf of the respondent Mr Boulten of counsel stressed the fact that the victim, Ms Orr, was the respondent’s girlfriend which added a complex layer to the respondent’s guilt and psychological reaction to his criminality. The victim impact statements, he frankly conceded, understandably contained scathing comments about the respondent. This hostile reaction to the respondent from the deceased’s family added greatly, it was submitted, to the respondent’s punishment for his criminality. Thus, it was argued that it was for reasons such as this that Whyte recognises that offences under s 52A which involve the death or injury to the driver’s intimates involve different considerations than death or injury to strangers. No criticism of Judge Shillington, it was argued, should be levelled simply because he took this sentencing feature into account.

58 Counsel referred the Court to what were said to be “comparative cases” being R v McKinney [1999] NSWCCA 51, R v Hanlon [2000] NSWCCA 55 and R v Kalanj (1997) 98 A Crim R 505.

59 In relation to the issue of concurrent sentences, Mr Boulten also cited the judgment of Simpson J in R v Hammoud (2000) 118 A Crim R 66 at 67, where her Honour said:

“There will be many cases in which sentencing judges might take differing views but neither view could be said to be wrong.”

60 Mr Boulten argued that the pattern of cases dealt with in this Court involving multiple offences arising out of the one accident (because there was more than one victim) demonstrates that totally concurrent sentences are always (if not always then nearly always) imposed. For example R v Sen [1999] NSWCCA 109, R v Gleeson [2000] NSWCCA 101, R v Dunlop [2001] NSWCCA 435 and R v Comber (Unreported, CCA 11 November 1998).

61 Mr Boulten frankly conceded that the problematic aspect of the instant sentences is that his Honour imposed sentences of five years with a non-parole period of two years in relation to each offence, despite the fact that the maximum penalty for the two offences is different. The fact that death was occasioned in relation to one count and grievous bodily harm in relation to the other count demonstrates that the offence under the first count was more serious than the offence under the second count. Thus it would be expected that a greater sentence would be imposed for the former than for the latter. In this regard it was conceded that his Honour may well not have given sufficient consideration to the appropriate sentence for the offence pursuant to s 52A(4).

62 He submitted that if one looks at a head sentence of five years with a non-parole period of two years for an offence under s 52A(4) it is, according to the statistics, towards the very top of the range for this type of offence.

63 However, Mr Boulten argued that this Court should not allow the fact that the sentences were identical for the two counts to trigger the Court’s intervention in this Crown appeal. It was submitted that neither sentence was manifestly inadequate and his Honour’s remarks did not identify any particular error.

64 We were of course referred to the JIRS statistics. In relation to s 52A(2) offences after Jurisic there was a sample of thirty-five cases from October 1998 to December 2001. With regard to All Offenders: 26% received head sentences of five years and 43% more than five years. Indeed, 14% received eight years. In relation to non-parole periods: 11% received two years, and 76% received non-parole periods in excess of two years.

65 As far as head sentences under s 52A(4) are concerned, there is a sample of thirty-four cases. Only 6% received five years and 6% received more than five years.

66 Of the thirty-four cases over the same period 12% received a non-parole period of two years and 21% received non-parole periods in excess of two years, the highest being four years.

67 The Crown submitted that the sentence of five years by way of the head sentence for the offence under s 52A(2) was manifestly inadequate appropriately to reflect the increments necessary to take account of the high level of moral culpability attaching to the respondent in relation to that offence.

68 However, the Crown submitted that the sentence of five years imposed by way of a head sentence in relation to the s 52A(4) offence was within the ambit of the appropriate exercise of the Court’s discretion. The Crown forcefully argued that this was a case that called for a partial accumulation of the individual sentences, particularly to take account of the principles enunciated in Pearce.

69 This Court acknowledged in Hammoud at 67, that since Pearce the question of whether to accumulate sentences for multiple offences has taken on a new dimension. In that case Simpson J said that except perhaps in cases of multiple offences committed as part of a single discrete episode of criminality, the sentence for an individual offence is to reflect the criminality involved in the offence untainted by reference to the other offences for which the offender is to be sentenced.

70 This proposition raises of course the perplexing question of what is a “single discrete episode of criminality”. Basically, in any particular case, this is a question of fact to be resolved by the sentencing judge. However, the resolution of the question in any particular case may well give rise to differing judicial opinions. In the instant case the sentencing judge did not explain why he deemed it appropriate to make the sentences concurrent.

71 In cases such as the present where more than one passenger in a motor vehicle involved in a serious accident is killed or injured by the same act of criminality the reference to a “single discrete episode of criminality” is really of little assistance – if any.

72 This Court in R v AEM; KEM; MM [2002] NSWCCA 58 stressed the need in cases of multiple offences (in those cases sexual offences), for the sentencing judge to determine whether there were discrete features of the individual offences which required accumulation, at least in part.

73 I acknowledge of course that those three cases were decided after the sentences in the instant case. Nevertheless it is appropriate for this Court to determine whether there were discrete features of the individual offences which required accumulation at least in part.

74 One of the aggravating features enunciated by the Chief Justice in Whyte, which I have quoted above, is a reference to the number of people put at risk. Speaking generally, of course, every user of the road in proximate vicinity to the vehicle being driven by the respondent on the night in question was put at risk. However, of course, his four passengers were specifically put at risk and he owed them each a duty of care.

75 Thus the offences were committed against different victims and the offences are of a different nature containing different degrees of seriousness reflected, of course, in the maximum penalties available.

76 As the Crown has reminded this Court, the s 52A(2) offence involving the death of Ms Orr was an offence “the real substance of which not just dangerous driving; it was the dangerous driving in association with the taking of human life”: see R v Musumeci (CCA, unreported, 30 October 1997). On the other hand the s 52A(4) offence, serious as it was, nevertheless lacked that critical element. Thus, in my view, the Crown has rightly argued that the sentences to be imposed by his Honour warranted some partial accumulation appropriately to mark these considerations. Absent that partial cumulation his Honour, in my respectful opinion, failed to comply with the principles identified in Pearce. The intervention of this Court is therefore, in my view, called for.

77 In re-sentencing, this Court must take account of the double jeopardy principle and impose the minimum sentences which could have been imposed at first instance.

78 In imposing sentences for these particular offences the public interest is very considerable indeed and, because of the general widespread concern about the frequency of serious accidents on New South Wales roads, it retains a significant impact in the sentencing process.

79 In relation to both offences, balancing the objective and the subjective circumstances, they call for sentences at the upper end of the available range.

80 Before I mention the sentences which I would propose, may I say, however, that I respectfully agree with his Honour’s conclusion that there were very strong subjective circumstances in this case. It is perfectly clear that the respondent suffered enormous psychological and emotional impact as a result of his driving on the night in question and the tragic sequelae. Although he has not been treated by a qualified psychologist or psychiatrist, it is clear that there are significant psychological problems which he must cope with in his future life and particularly during the period of custody which he must serve. There are other special circumstances, being the prior good character of the respondent, his youth, the fact that this is his first full time custodial sentence, together with the partial accumulation of the sentence, which I will propose.

81 I propose that the appeal be allowed and the sentences imposed by his Honour Judge Shillington be quashed. In lieu thereof I would propose the following sentencing regime. As to the second count, I would propose that the respondent be sentenced to a head sentence of three years to date from 12 July 2002 and to expire on 11 July 2005. With regard to the first count I would propose a head sentence of six years to commence on 12 January 2003 and to expire on 11 January 2009. I would propose, in relation to the first count, that there be a non parole period of two and a half years to date from 12 January 2003 and to expire on 11 July 2005. I would propose that there not be a non parole period fixed in relation to the second count, because of the partial accumulation of the sentences and the non parole period which I have proposed in relation to the first count.

82 In relation to the disqualification from holding a driver’s licence for three years to date from 10 March 2001, in view of the attitude taken by the Crown on this appeal, I would propose that it be confirmed. I would further propose a strong recommendation, in terms of Dr Roberts’ report, that the respondent be referred to the Prison Psychiatric Services, such that he may obtain specialist attention for his depression in the hope that at least any potential suicidal risk is minimised. To that end I would propose that the Crown be requested to ensure that the appropriate officers within the Department of Corrective Services be provided with a copy of Dr Roberts’ report.

83 HEYDON JA: The orders of the court will be, by majority, those proposed by Mr Justice Carruthers.