R v Smith

[2010] NSWDC 202

CITATION:	R v Smith [2010] NSWDC 202
JUDGMENT DATE:	6 August 2010
JURISDICTION:	Crime
JUDGMENT OF:	Norrish QC DCJ
DECISION:	S.166 certificate offence - convicted, sentenced to 9 months and 1 week imprisonment to commence on 03/12/09 and will expire 09/06/10. Drive in a manner dangerous causing grievous bodily harm – convicted, sentenced to 3 years and 1 month imprisonment to commence on 03/01/10 and will expire on 02/02/13. Principal offence, drive in a manner dangerous, cause death, taking into account matters on a Form 1, - convicted, sentenced to a term of imprisonment by way of non-parole period of 2 years and 2 months to commence on 3 February 2011 and expire on 2 April 2013. The balance of sentence of 2 years and 5 months to expire on 2 September 2015. Pursuant to s.77B Victim’s Support and Rehabilitation Act 1996 the prisoner is to pay the amount of $18,500 to M. Ahmad.
CATCHWORDS:	CRIME - Sentence - driving in a manner dangerous to the public occasioning death - driving in a manner dangerous to the public causing grevous bodily harm
LEGISLATION CITED:	Crimes Act 1900 Road Transport (Driver Licensing) Act 1998 Crimes (Sentencing Procedure) Act 1999
CASES CITED:	R v Whyte (2002) 55 NSWLR 525 Regina v Skrill [2002] NSWCCA 484 R v Jurisic (1998) 48 NSWLR 209 R v Henry (1999) 46 NSWLR 346 R v Rosenthal [2008] NSWCCA 149 Pearce v The Queen (1998) 194 CLR 610 Veen (No 2) v The Queen (1988) 164 CLR 365 Thomson and Houlton [2000] NSWCCA 309 (49 NSWLR 383) R v Read [2010] NSWCCA 78 R v Janceski [2005] NSWCCA 281
PARTIES:	Regina Anthony Christian Smith
FILE NUMBER(S):	2009/00056897
COUNSEL:	Ms A Brady (Director of Public Prosecutions) Ms S Alexander (Offender)
SOLICITORS:	Director of Public Prosecutions Alexander Lawyers - Offender

SENTENCE

1 Anthony Christian Smith appears for sentence today in relation to effectively three offences; two indictable offences for which he was committed for sentence and one offence, a summary offence, to be dealt with pursuant to a s.166 certificate. In respect of the principal offence which is an offence of driving in a manner dangerous to the public occasioning death, there are two offences to be taken into account set out on a Form 1.

2 The first offence to be particularised concerns the allegation of dangerous driving causing death. This, as with all the other offences, was committed on 2 June 2009 at Wiley Park. The allegation is that the accused did drive a motor vehicle to wit a Ford Fairlane sedan New South Wales registered number T1189, when the accused, driving in a manner dangerous caused the death of Wissam Ahmad. This is an offence contrary to s.52A(1)(c) Crime Act 1900. This carries a maximum penalty of ten years imprisonment. There is no standard non parole period for that offence. There is further, an allegation against the accused to which he pleaded guilty at the Local Court, that he did, on the same date, at Wiley Park, drive a motor vehicle in a manner dangerous causing grievous bodily harm to Thayur Ahmad. This offence, contrary to s.52A(3)(c) Crimes Act 1900, carries a maximum penalty of seven years imprisonment. There is no standard non parole period for that offence.

3 The matter on the s.166 certificate is an allegation that the accused drove whilst disqualified from holding a motor vehicle driver’s licence contrary to s.25A(1)(a) Road Transport (Driver Licensing) Act 1998. This offence, as I understand it, carries a maximum penalty of two years imprisonment. The two matters on the Form 1 to be taken into account occurring again on the same date at the same place as the other offences, are matters of failing to stop and assist after motor vehicle impact occasioned death to the deceased, contrary to s.52AB(1) Crimes Act 1900 and an offence contrary to s.154A(1)(b) Crimes Act 1900 of driving a conveyance or being carried in a conveyance knowing that it had been taken without the consent of the owner. The matters on the Form 1 are to be taken into account in accordance with the terms of the guideline judgment relating to Form 1, matters to which I will refer later.

4 There is a statement of agreed facts tendered. In summary it asserts that a co-offender, a juvenile who I will refer to as JK stole a motor vehicle from an address at Lakemba Street, Belmore. The vehicle in question was a silver Ford sedan, “a Silver Service taxi cab” registered number T1189. The juvenile drove the stolen car to where the prisoner was apparently either waiting, or expecting to be picked up, and the prisoner got into the cab and then the juvenile drove to pick up another co-offender who as I understand was a juvenile female, who I shall refer to as RB, she too got into the taxi cab. Within the next twenty minutes or so the prisoner took over the driving of the vehicle. At about 1.10am he was seen to be driving the taxi in an easterly direction along Punchbowl Road, Wiley Park. RB who was the girlfriend of the prisoner was seated in the rear near-side passenger seat and JK was in the front passenger seat. A witness, Mr Saline, was driving along Canterbury Road and observed the taxi, driven by the prisoner in his rear vision mirror. At that point the vehicle was about ten car lengths behind him and the taxi was approximately 3.4 kilometres from where the collision occurred. Near the intersection of Myall Street and Punchbowl Road, which is approximately 1.7 kilometres, or just over a mile from where the collision occurred, the witness Saline drove past another motor vehicle which was stopped on the side of the road, he looked into his rear vision mirror and saw the sedan pull onto the road and then saw the taxi that was driven by the prisoner, swerve out onto the wrong side of the road to avoid a collision with the sedan. The prisoner continued to drive the taxi behind Mr Saline and as Mr Saline noticed that the taxi was getting closer to him, he sped up to about 75 kilometres per hour to get some distance between his car and the taxi. He was obviously concerned about the driving of the taxi. Past the lights of the intersection of Acacia Avenue and Punchbowl Road, approximately one kilometre from where the collision occurred, Mr Saline saw the taxi behind him, the taxi drove up, as it is described in the facts, “fast”, behind Mr Saline’s vehicle then swerved past his vehicle overtaking him. At this point Mr Saline described the taxi as travelling “really fast”, when it overtook his vehicle.

5 The prisoner, driving the taxi cab, approached the intersection of King Georges Road and Punchbowl Road. He was facing a red traffic control light. He continued travelling into the intersection contrary to the red light signal. He did not stop, or according to the facts, slow down to avoid going through the red light. The front of the taxi collided heavily with the driver’s side of a silver Nissan 200SX vehicle travelling through the intersection along Wiley Avenue under a green traffic control signal. A collision reconstruction expert concluded from the evidence at the scene that the car driven by the prisoner was travelling at a speed of absolutely no less than 56 kilometres per hour at the time of the impact. The prisoner alighted from the taxi following the collision and decamped from the collision scene without checking on the welfare of the occupants of the vehicle with which his car, if I might say that advisably, had come into collision. Nor did he attempt to provide any assistance that may have been within his power to give. In fairness to the prisoner I would imagine, apart from pulling someone from the wreckage, if that was a feasible task, he was not well qualified to provide assistance in any event. The passengers in the taxi cab, the two juveniles, alighted and decamped from the collision scene. The prisoner was described by onlookers and no doubt that description was circulated. The deceased victim Mr Ahmad was ejected from the vehicle and suffered fatal injuries on contact with the road surface. He was pronounced dead at the scene.

6 The front passenger of the Nissan was also ejected from the vehicle during impact. He was conveyed to Liverpool Hospital suffering critical injuries which included a fracture of the inferior aspect of the clivus with slight displacement of the fracture fragments, fracture of the left temporal bone with associated fluid density within the left maxillary sinus, right rib fractures at 1 to 4 anteriorly and 6 to 7 posteriorly, liver laceration, with multiple hepatic contusions and small inter cranial haemorrhage in the occipital horns of the lateral ventricles. He required a chest drain for damage to his hemothorax. He was in intensive care from 2 June 2009 to 15 June 2009 and a number of medical issues associated with the injuries he suffered arose, including acute renal failure, acute respiratory distress syndrome with prolonged dependence on mechanical ventilators, high intra-abdominal pressures and persistent confusion. The victim required follow up at the brain injury rehabilitation team and it was anticipated that due to his injuries he would require ongoing rehabilitation in the medium to long term. The area at which the collision occurred, Punchbowl Road runs in a north-east direction and provides for two traffic lanes in each direction, the signposted speed limit of 60 kilometres per hour. At the time the collision occurred in the early hours of the morning it was obviously nighttime, a dry road surface and “medium traffic” and street lighting.

7 On the morning of Wednesday 3 June police attended at an address at Lakemba. They questioned the prisoner and placed him under arrest. He was taken into his custody and informed of his rights under the relevant legislation. He spoke to a solicitor and then participated in an electronically recorded interview where it would seem that he followed the advice of his solicitor not to answer any questions or provide any great detail about what was alleged against him. He did not provide any information regarding the circumstances surrounding the collision. He consented, as the record of interview makes clear, to a forensic procedure and various photographs were taken.

8 A search of premises at Belmore associated with the prisoner located a partially burnt red and black hooded jacket on the other side of the fence from the prisoner’s premises. This was the jacket the prisoner was wearing at the time of the offence and the facts allege that he attempted to burn the jacket sometime during 3 June, the day after the collision. Petrol was detected on examination of that item. Analysis by the Division of Analytical Laboratories revealed that the prisoner has the same DNA profile as the DNA profile recovered from blood located on the driver’s side airbag of the taxi, I need not talk about the probabilities of a match from two different people. Checks were conducted by the police with the RTA data base and, as I will deal with his criminal history in a moment, I will not say anything more at the moment other than the fact that he was disqualified from holding a motor vehicle driver’s licence at that time and was disqualified between 30 July 2008 and 29 July 2011.

9 I note the prisoner was born on 14 June 1990. Thus at the time of the collision the prisoner was eighteen years and eleven months, two weeks and a day or two days. In relation to his criminal history and some other material relating to his subjective circumstances. He first appeared at the Sutherland Children’s Court on 1 April 2008 and was placed on bonds in relation to being unlicensed and driving a motor vehicle without the consent of the owner. He was called up in relation to the orders that were made at that time and other orders were made. He was charged subsequently around about 30 July 2008, again with driving a conveyance, taken without the consent of the owner, and not being licensed. He was charged in relation to those matters it would appear, approximately four months after the charges dealt with in the Children’s Court.

10 At the Sutherland Local Court on 13 November 2008 in respect of the drive conveyance without the consent of the owner, he was placed on a bond pursuant to s.9 of the Crime (Sentencing Procedure) Act, for a period of eighteen months and required to be supervised by the Probation and Parole Service in various respects. In respect of the events of not being licensed, as I understand the record, he was not dealt with for that matter until 2 April 2009. On this occasion he was convicted, fined and disqualified for a period of three years, commencing from the date that I previously gave 30 July 2008 the date he was charged. He committed the offences with which I am concerned as the record reveals, while subject to the bond granted to him in respect of the drive conveyance without the owner’s concern matter. His criminal history also reveals that on 30 October 2008 he was charged with possessing a prohibited drug and supplying a prohibited drug. It would appear, as I would understand the record, that he failed to appear at the Burwood Local Court in relation to those matters on 6 January 2009. Those matters as well as other offences, including the matter for which he was placed on a bond in late 2008, were dealt with at the Burwood Local Court after the prisoner came into custody in early June 2009.

11 It would appear that the prisoner was sentenced on 29 July 2009 for the call up matter in respect of the good behaviour bond to a sentence of one month’s imprisonment commencing on 24 June 2009. On a charge of affray, for which he was charged on 1 December 2008, he was sentenced to two months imprisonment commencing from 24 June 2009.

12 In respect of what appears to be another offence of being carried in a conveyance without the consent of the owner, committed on 8 May 2009, a matter for which he would have been on bail I would assume at the time of the commission of the offences with which I am concerned, he was sentenced to one months imprisonment and ordered to pay $2,000 compensation. In respect of the possess prohibited drug and supply prohibited drug matters he was imprisoned for four months in each instance, each sentence commencing from 24 June 2009. He was also subject, according to the record I have, to a period of further disqualification for not being licensed and never having been licensed, of three years commencing from 29 June 2011. This matter would appear not to have found its way into the RTA record and it is a matter I need to clarify with the Crown in due course.

13 I have some other material in the Crown case which I will deal with before I turn to the material relied upon by the prisoner. I, firstly, have a victim impact statement provided by the father of the deceased Mr Ahmad. The document is a restrained and dignified document and sets out in summary the great grief and sadness occasioned by the criminal acts of the prisoner. I note the affect upon the father and the family of the victim by the prisoner’s actions. As learned counsel for the prisoner has pointed out, the victim impact statement is required to be considered in the context of the constraints of the Crimes (Sentencing Procedure) Act 1999. The matters raised in the victim impact statement are matters which would ordinarily be expected to be felt by the family of the deceased person in the circumstances with which I am concerned. I also bear in mind of course the impact upon the life of the seriously injured passenger. With regard to interests of the family of the deceased and the interests of the passenger in these proceedings, it must be made clear that sentencing of offenders for offences of this type do not by their measure seek to quantify the value of a life, or the value of the loss of comfort in life suffered by a person who has suffered grievous bodily harm. Such sentences as are imposed are required to be imposed within the context of the maximum penalties that area available and subject of course to the various legislative provisions and sentencing principles which constrain all sentencing judges. Thus in the consideration of the sentence that is imposed upon the prisoner again I stress the measure of the value of the life of the deceased and the measure of the value of the seriously injured person, is not to be seen by the length of the term of imprisonment or any other penalty that is imposed.

14 A Probation and Parole Service report has been prepared and it would seem that it is somewhat less than flattering. The report sets out the background of the prisoner which I will deal with shortly when I refer to the psychologist’s report, it notes the prisoner’s upbringing in New Zealand, a previous pre-sentence report in 2008 that indicated that the prisoner was described as “immature and spoilt” and some friction between he and members of his family, although there are a number of members of his family that support him. That support is evidenced in references written for the prisoner. The prisoner would appear to have not had a permanent place of abode, living with family members, other than his immediate family from time to time. He left school at year 11, at the age of seventeen, he undertook some courses and has had some sporadic employment but the report from the Probation and Parole Service says that he was not in receipt of Centrelink payments for the last twelve months of unemployment because he could not establish his identify with Centrelink. He asserted that his lack of income “induced him to turn to crime”. It is very difficult to see what financial advantage could have been a wrought for the prisoner by his driving of a stolen taxi cab. Certainly the claim of “turning to crime” through lack of income does not explain the manner of his driving for which I am concerned. The prisoner has claimed to the Probation and Parole Service that he has had a number of mental health issues. But a report in January 2009 stated that the prisoner is not mentally ill, within the terms of Chapter 3 of the Mental Health Act 2007. That same report further reported, however, that the prisoner required follow up and ongoing community management. The prisoner whilst he was at large was referred to the Mental Health Service for a follow up on 10 January but he failed to present himself. During the current period of custody he was prescribed some antipsychotic medication which is referred to in the psychologist’s report. He was also prescribed methadone, but is no longer, I am told according to the Probation and Parole Service, receiving any of the antipsychotic medication. He claims use of cannabis at the age of 17 and he has used both crystal methylamphetamine and cocaine on one occasion. The prisoner was placed on a Methadone program, apparently in about June 2010. He is recorded in the Justice Health notes as having claimed use of the drug Bupremorphine, that being the only opiate drug of dependence that he said he has used. But to the reporter he denied the use of that drug. There is a note on his medical file referring to “previous heroin use”. The prisoner does not believe he has a problem with his attitude. He told the Probation and Parole Service that he took over the driving of the vehicle because he was concerned with the co-offender’s erratic driving. He claimed that at the time that the collision occurred that he just wanted to go home and he burnt his jacket because he was “really scared”, having seen footage of the incident on television. He asserted to the Probation and Parole officer that he was “very, very regretful” and had nightmares about the collision.

15 The Probation and Parole Service says that his previous response to supervision has been unsatisfactory and he had continued to re-offend notwithstanding supervision. He had an unstable lifestyle compounded to some extent by substance abuse and “poor choice of associates”. It was said to be difficult to gauge the extent of his remorse and it noted that he proposed to prepare an apology for court.

16 I note in passing that the other two offenders have been dealt with in the Children’s Court. JK has been dealt with for the larceny of property from a taxi, the taking of the taxi without the owner’s consent and another offence, and was placed on a bond for twelve months. The female child was placed on a bond for being carried in a conveyance, taken without the consent of the owner. I have noted those penalties, but given their ages, the jurisdiction in which they were sentenced and the character of the offences that they have been dealt with, they provide little or no guidance in the current matter. There was certainly no submission made of any issue of parity arising. True it is JK had stolen the taxi in the first place, but the prisoner was more than willing to take over its driving. His claims as to the reasons for his driving cannot be tested. In any event, the evidence shows that he was driving erratically himself. Certainly there was no evidence of any particular restraint on his part.

17 I have a report from Tim Watson-Munro dated 15 July 2010. I am prepared to act upon the reporting of the prisoner’s history provided by the prisoner. However, I approach some aspects of this report with considerable circumspection, as I do claims from the prisoner appearing in the Probation and Parole Service to some extent. The prisoner has not given evidence in this Court and none of the hearsay contents of the various reports arising from what the prisoner has asserted, nor the contents of his own statement to the court, have been subject to the test of cross-examination. The other comment I wish to make about Mr Watson-Munro’s report is that it reports with some detail what the prisoner has reported to him but provides very little, in fact, almost nothing in the character of the results of psychometric testing.

18 The use of psychologist’s report to get into the proceedings a version from the prisoner is common place in these Courts. Occasionally it is the subject of comment by this Court and the Court of Criminal Appeal. There is ample authority for the proposition that reports of this nature relying upon representations made out of court that are not properly tested may be given little weight in the appropriate case. In fact they may be ignored. But more importantly a psychologist’s report should, in my view, contain at least the results of relevant testing within the expertise of the psychologist. I am not doubting this psychologist’s qualifications. I am not doubting the genuineness of his views in relation to the expressions of remorse by the prisoner and other matters from his examination of the prisoner in a personal manner. The facts of the matter are that Mr Watson-Munro has had a much better opportunity to speak to the prisoner and view the prisoner than I have. I have seen him from a distance in the dock. Mr Watson-Munro is able to interview him and interrelate to him face to face. On the other hand Mr Watson-Munro’s capacity to judge expressions of remorse as genuine or appearing to be genuine cannot, one would have thought, fall from his expertise. I appreciate he has considerable experience in interviewing people, but the most useful thing that one can obtain from psychologist’s reports in my experience, is the results of appropriate testing through psychometric testing and other tests that have been approved within the science of psychology. As I see the report, there is very little evidence of that here.

19 That having been said, I note from the report that the prisoner was born on the North Island of New Zealand and Mr Watson-Munro describes him as a person of “mixed decent with his parents being from the Samoan and Cook Islands”. He has got a younger brother and two younger sisters and he has the parents who are relatively young, forty and thirty-nine years of age. This report claims that “all family members are supportive of him” which is at odds with the report from the Probation and Parole Service. The family migrated to Australia in November 2006, so the report claims. The prisoner’s education was somewhat disrupted, it is claimed because of his mother’s employment in the New Zealand Army. He spent most of his primary school years in Wellington and Wainui. The report claims in contradiction of the previous paragraph that the family relocated to Sydney with him when he was eight years of age. On my calculation that would be around about the year 2000. The prisoner claimed to Mr Watson-Munro that in Australia he was bullied at Lakemba Public School and was sent back to New Zealand where he remained until he was sixteen years of age. Upon his return to Australia he went to Belmore Boy’s High, half way through year 11 and claimed that he was bullied again, and claimed that he was bashed by Lebanese and Fijian students. I have no means of knowing whether that be true or not. In any event it seems to have very little, if anything to do with the circumstances with which I am concerned. Mr Watson-Munro reports that the prisoner worked at Pizza Hut and that work ceased after five months, again because of claimed “continuing problems with ethnic groups”. The prisoner is said to have an ambition to be a diesel mechanic, but this never eventuated and again asserts his difficulties from “hanging out with the wrong people”. He says in this context he was introduced to cannabis and that led to the charges of drug possession and supply to which I have referred. The formulation of Mr Watson-Munro really turns upon matters relating to emotional distress arising from his formative childhood years and depression and anxiety and low self-esteem arising out of separation from his family and episodes of bullying and the like. There are some dysfunctional relationships that are referred to in the report.

20 The report notes the prisoner was affected by the ‘murder’, as it is described, of a close friend who was stabbed on a train at Campsie in December 2008. The offender was convicted of manslaughter. The prisoner has symptoms of grief and anxiety and anger arising out of that. The prisoner has also, it is said by Mr Watson-Munro symptoms “reflective of post traumatic stress” arising out of the collision and the death of Mr Ahmad. The prisoner claims to have nightmares and flash backs in relation to the incident, sleep disturbance, hyper-vigilance and escalating depression. In custody he has feared that he may be the subject of reprisal for reasons associated with the circumstances of the collision and was under some form of protective custody, for a period of time, which has recently been relaxed, I do not have conclusive evidence in relation to that matter.

21 I bear in mind of course that a young man of eighteen or nineteen years of age, going into custody, as the prisoner has in the last year, or so, for the first time, will have many difficulties in custody. There will be many dangers and threats to his safety, even ignoring some suggested concern arising out of the circumstances of the collision. But the circumstances of his custody are not so exceptional as to warrant substantial adjustment in the relevant orders. Mr Watson-Munro said the prisoner was cooperative and as I said expressed strong feelings of remorse. Mr Watson-Munro noted the various life stressors and tragedies that have befallen him, particularly the death of his friend and the consequences for the prisoner of this accident and noted that the prisoner requires “intensive psychotherapy”. In addition to any medication that he may receive for anxiety, he also needs one to one counselling in relation to Cognitive Behaviour Therapy, focussing upon improving his self esteem and communication skills in addition to developing effective relapse prevention strategies. In a nutshell he requires professional assistance to make himself into a better person than he was when he went into custody.

22 Mr Watson-Munro, without any evidence, does concede what is self evident from the facts, that the prisoner is a person who can be impulsive and has difficulty resolving problems. Unfortunately, as I said, I have no objective evidence to support any of those findings in the normal manner in which it would be produced through a psychologist’s report. I note the prisoner’s report to the Court. It should be noted the prisoner apologises to the family of the deceased and the family of the injured man, describing his own actions as “stupid, foolish and immature”. This would barely describe what has caused the current tragedy for the family of the deceased and the injured man. The prisoner says he is utterly regretful and remorseful for what he has done and would wish to, in some way relieve the pain and suffering for others. He claims to “take full responsibility” for his actions and will accept the consequences of his conduct. He makes self evident assertions about the fact that he has broken the law and there are consequences that will flow from that and that the experience that he has been through will be a “wake up” call for him and that he is taking steps to change himself, which I am prepared to accept are true. But he has quite a way to go to achieve the position where it might be fairly said that he is capable of controlling his impulsive, immature, dangerous behaviour.

23 I have a number of references from various family members which I have read, one apparently from New Zealand from a family member who dealt with him there whilst he was living apart from his family. It would appear that he has family members that have substantial business interests. One of his aunts is the owner, in partnership with her life partner, of a hotel at Leichhardt, where his mother works from time to time. I note their positive statements about his capacity for reform, his expressions of regret and remorse and his capacity to be an improved person. Offers of employment are made for the prisoner.

24 The references also note the dislocation of the prisoner being separated from his family in Australia for eight years, the consequences for the prisoner of the death of his friend in the stabbing to which I have referred and the close relationship of the prisoner to members of his family. One aunt, who I take it to be a resident of New Zealand, refers to the prisoner as “an intelligent, easy going, and lovable boy”, but a person who is also “very immature for his age”. The aunt in question has made a number of trips to Australia to visit him in prison. She says that he has seen the error of his ways and the situation which he finds himself is a considerable shock for him. I have taken into account all the evidence that has been produced by the parties, most of which I have at least adverted to and summarised.

25 In the submissions of the parties, effectively it is conceded by the prisoner’s counsel, who very learnedly took the Court to a number of principles and issues to be addressed, that imprisonment is to be imposed. Counsel for the prisoner noted, of course, that this was a very serious matter, although he said it was not a matter that could be considered the worst case of its type and it was not a case that could fairly be described as one involving conduct that could be categorised as the highest example of moral culpability, as that concept is discussed in the decision of Whyte (2002) 55 NSWLR 525. Of course I was taken to a number of other judgments, the decision of Read [2010] NSWCCA 78, TG a decision of the Court of Criminal Appeal relating to the deaths of four young people near Lismore, ([2010] NSWCCA 28) and other decisions R v Melas [2004] NSWCCA 198, R v Dandachli [2004] NSWCCA 100, R v Clampitt-Wotton [2002] NSWCCA 383 and R v Oddie [2001] NSWCCA 524. The Crown also was of assistance in relation to a number of authorities including the decision of Skrill [2002] NSWCCA 494. Counsel for the accused asserted that notwithstanding the objective seriousness of the offence the prisoner had matters in mitigation that would persuade the Court that as much as the court must have regard to the guideline judgment of Whyte, the prisoner’s youth, expressions of regret and the capacity for rehabilitation, would operate to mitigate the otherwise objectively appropriate sentence.

26 It was conceded in the submissions that the only appropriate penalty, notwithstanding the terms of s.5 Crimes (Sentencing Procedure) Act would be one of imprisonment. The Crown in its submissions made it very clear that obviously only a term of imprisonment could be imposed in this matter, which is self evidently true, and that there are a number of factors in aggravation both arising out of s.21(2) Crimes (Sentencing Procedure) Act, arising under the terms of the guideline judgment in Whyte and arising as an application of general commonsense in sentencing. It was submitted by the Crown that it was a high level of moral culpability involved and that the totality of the criminality required the imposition of the cumulative sentences.

27 The most significant authority guiding this particular sentencing exercise is of course the decision of the Court of Criminal Appeal in R v Whyte, to which I earlier made reference. In that particular judgment, the Court of Criminal Appeal revised the first ever guideline judgement, the decision of the Court in R v Jurisic (1998) 48 NSWLR 209. In considering Whyte of course I understand that it is a guideline judgment. It must be taken into account, under the legislation that now applies in relation to guideline judgments, and it is available to structure sentencing discretion in the lower courts. But it is also subject to the various observations made about the existence of the residual judicial discretion and the need to do justice in the individual case, that have been discussed in a number of cases, including those of Jurisic and the guideline judgment in relation to armed robbery of Henry. In the decision of Whyte, at [204], as with Jurisic, the Court noted the frequently recurring case of an offence under s 52A as a number of characteristics including the involvement of a young offender, usually of good character with no or limited convictions, with obvious death and/or permanent injury to a single person, where the victim is a stranger with no, or limited injury, to the driver or the driver’s intimates. But also genuine remorse, and a plea of guilty of limited utilitarian value.

28 The Court observed that as the Parliament has made clear in the maximum penalties for the offence, conduct which causes death or grievous bodily harm, even in the absence of any intention to cause such injury, is to be regarded as a serious crime. However 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. In Jurisic the Court had held, as part of the first limb of the guideline, that a non-custodial sentence for an offence under s 52A should be exceptional and almost invariably limited to cases involving momentary inattention or misjudgment. This clearly is not such a case. In dealing with an appropriate numerical guideline, reconsidered in Whyte, in Jurisic a number of aggravating factors, as they were described, had clearly been established by the authorities.

29 Those that are discussed in Whyte at [216], which are relevant here, in the context of the elements of the respective offences, include the extent and nature of the injuries inflicted. In one case, of course, there is a death. Thus attracting the higher maximum penalty. The other case involving the infliction of grievous bodily harm, involved very serious injuries. The exact degree of permanence of those injuries is not provided for in the material available to me, but one can see from what I have outlined of those injuries that they were life threatening injuries, one would have thought. Certainly the patient was in a critical condition for a lengthy period of time. Further, there is reference to the need to take into account the number of people at risk as an aggravating factor. Here, of course, the prisoner put at risk himself, his two passengers and the two victims. It would seem, by his conduct, he was putting at risk Mr Saline. They are six people in number that can be identified. With a medium level of traffic there were obviously other people whose safety was put at risk. The mere fact of driving through a red light at a bare minimum speed of 56 kilometres per hour speaks eloquently of the potential risk to other road users. The degree of speed which is referred to at [216] in Whyte is not a significant aggravating factor here. The prisoner was seen to be driving at a maximum, as I would understand it, of 75 kilometres per hour. The minimum speed going through the intersection at point of collision from the scientific testing is just under 60 kilometres per hour, the speed limit. But that is an absolute minimum. One cannot conclude beyond reasonable doubt what the actual speed was.

30 There is no evidence of intoxication or substance abuse, which is always a very significant aggravating factor. But there is here evidence of erratic driving for a distance of at least 1.7 kilometres, as I would understand the facts, up to the point of collision. Of course, the dangerous driving at the heart of this case, the driving of this car through a red light, speaks of such erratic driving. I have taken into account the length of journey during which others were exposed to risk in the context of what I have already held. There is no evidence of ignoring of warnings and there is no evidence of escaping a police pursuit.

31 However, a matter to be taken into account in the context of the Form 1 matter, is evidence of failing to stop in the sense of the prisoner failing to stop to render assistance. The vehicle itself stopped because it no doubt was forced to stop by the impact of the collision. As the Court held in Jurisic, and again in Whyte, the extent and nature of injuries inflicted and the number of people put at risk focuses on the occurrence whereas other matters of aggravation refer to the conduct of the offender. The presence of these latter factors may indicate that the offender, in the words of Jurisic, had abandoned responsibility for his own conduct. Where they are present to a material degree that would be relevant to the determination of the appropriate sentence. Ultimately in Whyte the Court concluded that “in a typical case identified above”, where the offender’s moral culpability is high, a full time custodial head sentence of less than three years in the case of death and two years in the case of grievous bodily harm would not generally be appropriate. In a case of a lower level of moral culpability a lower sentence of course would be appropriate and of course the aggravated version of the offences under s 52A are required to take into account the greater maximum penalties.

32 The Court held that the guideline was to reiterate a guide or a check and that the sentence imposed in a particular case would be determined by the exercise of a broad discretion, taking into account all the factors to be taken into account under s.21A.

33 I should point out in relation to the supposed “typical case”, as much as anyone could formulate criteria for a typical case, whilst the offender was young, he was not of good character, or of limited prior convictions, and it is difficult, notwithstanding the statements of remorse, to see the remorse as being of much weight in this matter. The plea of guilty however is of something more than limited utilitarian benefit.

34 It is to be noted too that at the time of the collision the prisoner was a disqualified driver. At this point of the sentencing exercise the significance of that is that he had no right to be on the road at all, let alone driving a car that he must have known, and in fact did know as the charges reveal, had been previously stolen. It was of its character a car that would not be driven ordinarily by a juvenile.

35 In R v Rosethal [2008] NSWCCA 149 it was pointed out by Justice Hidden at [16] and [17] that the fact that a person was a disqualified driver and was on bail at the time of the collision in question for other offences is not relevant to the assessment of moral culpability or “abandonment of responsibility”. It was noted of course however that issues that arise from offences committed on conditional liberty and/or whilst disqualified, bear upon the issue of deterrence both personal and general. They clearly do here.

36 Whilst I do not want it to be taken as detracting from what Justice Hidden said, supported I point out by Chief Justice Spigelman and Justice Latham, one issue relevant to the objective circumstances, putting aside the fact that the accused had no right to be driving any sort of motor vehicle at all, was the fact that this young offender had never been licensed at any time. The erratic driving that I have described and the circumstances of the collision are therefore to be considered in the context, not only of an inexperienced driver, but a driver who has never taken the trouble to qualify himself, so as to ensure a minimum understanding of his responsibilities on the road and a minimal level of proficiency in driving a vehicle, such as to obtain a licence. A driver’s licence is not given away. First of all, one must obtain a learner’s licence and then, as I understand it, a large number of hours of driving with a fully licensed driver directing before then undertaking a series of practical and theoretical tests. The failure of the prisoner to even have these basic qualifications to drive a motor vehicle do not work in his favour, as might be the case in the example of an inexperienced licensed driver, demonstrating negligent control of a motor vehicle through that inexperience, through momentary inattention, or for some other reason.

37 I do not take into account the fact he was disqualified as a matter relevant to the objective assessment of his driving per se. I make that clear. It is to be borne in mind I am required to fix a separate sentence too for the driving whilst disqualified matter and in considering this matter, I will consider it as an aggravating matter to the indictable charges, in the sense of being relevant to the greater weight to be given to general and personal deterrence. It is a matter where I have to be very careful not to “double dip”, so to speak. Hence the partial accumulation of the sentences for the indictable matters upon the drive whilst disqualified matter will be seemingly modest. I will return to that issue later.

38 In summary this is not the worst case by the worst type of offender. The various sentencing issues at work here require a proper integration and balance of the objective circumstances and the relevant subjective circumstances. But the subjective circumstances favourable to the prisoner offer only modest mitigation. I know that the majority of the High Court in the decision of Veen (No 2), decided in 1988, pointed out in upholding the imposition of a maximum penalty for that offender, that one can always conjure up a ‘worse case’ scenario than the one ‘at bar’ and that a range of offences may fit within a band of “worse case scenarios”. I am prepared to hold that this does not. However again I reiterate it is a very serious offence of its type committed by a young offender with few favouring mitigating circumstances.

39 Dealing with each separate offence on its merits, it can be pointed out that these offences, or each individual offence, was not committed whilst escaping a police pursuit or in order to commit some other crime such as an armed robbery or the like. There was no evidence of intoxication of any type, although clearly the driving through a red light is of itself a very dangerous thing to do and his counsel agreed that it was a very serious offence as I have pointed out.

40 Furthermore, the offender as I have said is not within the class of the worst type of offender. Whilst he was a disqualified driver and had never been licensed, his disqualification had arisen from offences relating to driving whilst unlicensed, rather than offences of driving in a manner dangerous, driving whilst disqualified or driving with the prescribed concentration of alcohol or under the influence of a drug or drugs.

41 Of course his record in its terms does not provide him with any entitlement to any special leniency in this matter. However, I do regard his criminal history as not a relevant aggravating factor, under s 21A(2) Crimes (Sentencing Procedure) Act.

42 Although the death and serious injury here have a common cause there must be separate penalties imposed for each offence (Pearce v Queen (1998) 194 CLR 610 at para 45). It is clear from the decisions cited in the course of argument such as the decision of Read to which I made earlier reference, Skrill and Janceski that it is the totality of the criminality which is to be considered in sentencing for several offences, or more than one offence committed at the one time. Thus, given that the totality of the criminality includes the relevant death and injury which has been occasioned, sentencing will require the imposition of partially accumulative sentences for the indictable matters although the relevant death and injury, or injuries, occur effectively from the one conduct. I point out again that this is a sentencing exercise to be constrained by the maximum penalty in each case, ten years and seven years and that the maximum penalty ought be reserved for the worse case committed usually by the worst type of offender.

43 A consideration of s 21A(2) Crimes (Sentencing Procedure) Act requires me in this matter to specifically find as an aggravating factor that the prisoner was subject to various forms of conditional liberty at the time of the commission of the offences. As I would understand it he was subject to a good behaviour bond granted in November 2008, that bond being subsequently revoked. He was on bail in relation to an offence of affray. He had been on bail in relation to offences of possession and supply of a prohibited drug, for which he had been charged in late 2007, and for which he failed to appear at court and thus was subject to outstanding warrants at the time of these offences.

44 In sentencing the prisoner I am required to have regard to s 3A Crimes (Sentencing Procedure) Act. Whilst his youth militates in favour to some respects of the promotion of his rehabilitation, the objective seriousness of the totality of the offending, the fact that the offences were committed on conditional liberty, the fact that he was a disqualified driver with no right to be on the road driving a stolen motor vehicle, also militates in favour of general deterrence and personal deterrence. Section 3A also requires, amongst other things, to make the prisoner accountable for this serious misconduct and for his conduct to be denounced amongst other matters.

45 Section 21A(3) of the Act identifies mitigating factors that maybe taken into account in sentencing an offender in relation to the matters with which I am concerned. In relation to the relevant mitigating factors I am satisfied that this offence was not part of planned or organised criminal activity. It was submitted to me that the prisoner is unlikely to re-offend or more particularly has good prospects of rehabilitation. Given his conduct up until the present time, even noting his expressions of contrition and regret and his determination to make good in the future, I cannot conclude that he is unlikely to re-offend. His negative report from the Probation and Parole Service does not provide confidence in that regard, nor does it provide confidence in relation to his prospects of rehabilitation. It is the case that he is young and he has time to rectify his life before too much longer, but I could not conclude on balance that he has good prospects of rehabilitation at this point. I would need a crystal ball to come to that conclusion.

46 As to the issue of remorse as it arises under s.21A(3), that can only be found as a mitigating factor under that provision if the offender has provided evidence that he has accepted responsibility for his actions and that he has acknowledged any injury, loss or damage cause by his actions in some way. His letter to me, untested though it is, does provide such evidence of those matters and ultimately it might be fairly said that in those circumstances on balance there is relevant evidence of remorse. He has expressed remorse to the psychologist and to the Probation and Parole Service. He has given the impression of being genuine in that regard to those persons. However, measuring the value of this remorse or contrition one has to have regard to his conduct immediately after the relevant events. His contemporaneous conduct does not speak of remorse or contrition. He did not co-operate in any material way with the investigation and it is fairly to be said that any remorse or contrition he has expressed, even if it does satisfy s.21A(3)(i), was not timely. Ultimately, even if found to be a mitigating factor, it is a matter of little weight in these proceedings. Although it is of some relevance to considering his future prospects with which I am concerned.

47 In respect of this matter of course the two matters on the Form 1 are required to be taken into account in relation to the principal offence. Form 1 matters are salient in the sentencing exercise as the guideline judgment of 2002 made clear. The Court there said that a court was not required in sentencing to fix an additional penalty for those matters on a Form 1. One was only required to fix an appropriate sentence for the principal offence. The Court said that the fact that there are matters to be taken into account on the Form 1 means that greater weight should be given to the need for personal deterrence and the community’s entitlement to extract retribution. The “entire point of the process” is to impose usually a longer sentence or to alter the nature of the sentence that would be imposed to the principal offence that stood alone. Of course, the principal offence here is a very serious matter. But the significance of driving a car that the prisoner knew had been taken without the owner’s consent in the circumstances of that offence being on the Form 1 should not be lost in assessing the appropriate sentence for the principal offence in light of these principles. The Court said in the guideline judgment that it was wrong to suggest that the additional penalty should be small, sometimes it would be substantial, although again the principal offence is the matter with which the sentencing process is concerned. In increasing the sentence for the primary offence the court observed that there are matters which limit the extent to which this will be so and as I said it would be rarely appropriate for a sentencing judge to attempt to quantify the effect on the sentence for the principal offence from taking into account the Form 1 offences. So far as the guideline judgment is concerned, I have had regard to all that the Court of Criminal Appeal said in that judgment (see (2002) 56 NSWLR 147).

48 The prisoner has been in custody as I have pointed out since 3 June. He has been subject to various sentences imposed at the Local Court totalling four months. Each of the sentences imposed at the Local Court in July were ordered to be served concurrently one with the other. In fact the prisoner received five separate sentences, bearing between one month and four months. What I propose to do is notionally calculate those sentences to have commenced from the date the prisoner came into custody which was 3 June 2009. The offences with which I am concerned are of course quite separate criminality, but I believe it is appropriate that I should commence the sentences that I impose three months into those sentences, in other words make the commencement date of the sentences I impose, not wholly accumulative to give effect to totality principles. In relation to of course the sentences I will impose I note as earlier I have cited the decision of Pearce and the effective decision such as Read and Janceski. As I have indicated, and it was not the subject of any contrary submission, there must be some additional penalty for the drive whilst disqualified offence, without permitting myself to double dip.

49 One important matter, the subject of considerable discussion, was the discount to be given for the utilitarian value of the plea of guilty. I was given some details from the bar table which I am prepared to accept and as I understand the matter, whilst this matter could have been dealt with through the conferencing system, the application by the prisoner pursuant to s 91 Criminal Procedure Act for witnesses or a witness to be called to give evidence, meant that there was no case conferencing. As I understood the submissions made, and I have no transcript of the submissions, the provisions in ss 16 and 17 Trial Case Conferencing Act did not apply. However, I am informed that the prisoner did plead guilty and was committed for sentence at the Local Court before any requirement was made by the Local Court for witnesses to actually attend. The chronology is not entirely clear, but my understanding was that on the day the s 91 application was to be heard, indication of a plea of guilty was given, or a plea of guilty was given. It was argued on behalf of the prisoner that the situation thus was not much different from what might have happened had the matter gone through case conferencing. The prisoner pleaded guilty during case conferencing and thus was entitled to the relevant discount of twenty-five percent under the relevant legislation. This is very much a case where the ‘common law’ principles in Thomson and Houlton come into contact, and overlap with, the case conferencing legislation. On the other hand the prisoner was not cooperative in the investigation and it is quite clear in relation to each of the three offences with which I am concerned, he was challenging the allegation of ‘driver’ up to a point when he pleaded guilty or indicated a wish to plead guilty. The Crown was put to the expense, if that be the correct word, of DNA testing to which I have referred, of obtaining expert reports in relation to matters that might otherwise have been self evident from the circumstances of the collision. I have had close regard to the guideline judgement of Thomson and Houlton, so far as it applies. I have had very much assistance from the submissions, but ultimately I could not afford the prisoner a discount of twenty-five percent given what was outlined even by his counsel. There was of course some delay in the matter coming to the District Court and the Crown pointed to certain time frames which must be accommodated for conferencing purposes. The fact that the matter was listed for s 91 application shows, at least at one point, a determination to at least explore the strength of the Crown case, in circumstances where, as we now know by his plea, the Crown case was overwhelming. I am of the view I should afford the prisoner a discount of twenty-two and a half percent, upon the otherwise appropriate sentence, in accordance with the discretion available to me under Thomson and Houlton. It is a marginal discount from that advanced by his counsel, but the full discount could not in my view properly be given.

50 Many of the submissions that have been made by the Crown and the defence which I generally referred to I have dealt with in the course of my analysis of legal issues and other matters. Clearly I am required to give a separate sentence as I have said for the matter on the s 166 certificate. The guideline judgement I have had close regard to but this case in all respects could be seen as a more serious case, clearly so than that contemplated by the guideline as a typical case and it has present in it, not only the aggravations spoken of in Whyte to a significant degree. But it has the aggravation, particularly under s.21A(2) to which I have referred, and the serious situation of a man, although young, driving a stolen motor vehicle when he had no right to be on the road at all and had nothing like the relevant qualifications one would expect as a bare minimum to control a motor vehicle. I have taken into account the circumstances of his custody. I am mindful of his youth as has been repeatedly pointed out by his counsel. I am mindful however also of observations that are made for example in TG about the fact that these cases frequently involve young people and the need for general deterrence is equally applicable in cases of this type where young drivers are involved, particularly where their actions are as calculated as occurred on this particular occasion. I have also had regard I, hasten to say, to the outcomes of the various cases to which I was referred so far as principles were concerned for some guidance as to appropriate sentences. I am mindful of course in TG that the total sentence imposed upon that offender, which was four years imprisonment as I understood it, for a case involving the deaths of four young people. Obviously it might be fairly said that causing four deaths as opposed to one death and one grievous bodily harm is assessed as objectively more serious. But the circumstances of that offence and particularly the conduct of the offender were nowhere near as egregious as the conduct of this prisoner. Of course, that young offender could be fairly said to have driven in a manner dangerous arising out of inexperience, not wilfully exercised. That young driver had a much clearer record than this offender and that young driver of course was in close friendship with the deceased persons. TG was licensed. Although I also point out in TG that whilst the appeal was unsuccessful on the part of the appellant the sentence was regarded by the court as being extremely lenient. In any event, every case has to be decided on its own facts and finding comfort from another case is very difficult where so many circumstances are varied and certainly that is the case here.

51 Thus, if you could stand up thanks very much Mr Smith. In relation to the matter on the s 166 certificate you are convicted, this is the offence of driving whilst disqualified on 2 June 2009 you are sentenced to nine months and one week imprisonment. That is a discount of twenty-two and a half percent rounded down somewhat on twelve months imprisonment. That sentence will commence on 3 December 2009 and will expire 9 June 2010.

52 In relation to the offence of driving in a manner dangerous causing grievous bodily harm, with the discount that I have given you, with a commencement point of four years imprisonment, you are convicted. You are sentenced to three years and one month imprisonment, that sentence will date from 3 January 2010, in other words it will be accumulative to the extent of four months upon the drive whilst disqualified matter, and it will expire on 2 February 2013. I do not propose to fix a non parole period for that matter and the reason for that is because in relation to the principal offence, the drive in a manner dangerous, cause death, taking into account the matters on the Form 1, you are convicted. You are sentenced to a term of imprisonment by way of non-parole period of two years and two months, that will commence from the date of 3 February 2011 and expire on 2 April 2013, so it is accumulative to the extent of one year upon the other sentence I impose for the cause grievous bodily harm offence. The balance of sentence will be two years and five months and the balance of sentence will thus expire on 2 September 2015 and, as I would calculate the matter, your total sentence thus is six years imprisonment with a non parole period effectively of three years and seven months from the date of the commencement of the sentence, bearing in mind there is a partial accumulation upon three months imprisonment imposed by a Magistrate for totally different offences at a different time.

53 Now in relation to the periods of disqualification I have foreshadowed them, but I do not propose to fix them until I am satisfied as to when the current period of disqualification expires.

54 It follows from what I have said that I have made a finding of special circumstances pursuant to s.44 Crime Sentencing (Procedure) Act. Special circumstances in this matter are, in my view, a need for an extended period of supervision to assist the accused to adjust to community living and a need for an extended period of supervision to assist the accused, both in relation to the treatment of psychological difficulties the prisoner is currently suffering and to receive counselling and guidance and direction in relation to matters such as drug dependence and abuse, employment and education. In my view the period of supervision which I have fixed, which as I said I calculate to be two years and five months, is a sufficient period of supervision for such counselling, direction and guidance to be complete.

55 Pursuant to s.77B Victim’s Support and Rehabilitation Act 1996 I order the prisoner pay the amount of eighteen thousand five hundred dollars to M Ahmad, of New South Wales.

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