SBF v R - [2009] NSWCCA 231

No judgment structure available for this case.

Reported Decision: 198 A Crim R 219[2010] ALMD 122[2010] ALMD 123[2010] ALMD 12153 MVR 438

New South Wales

Court of Criminal Appeal

CITATION: SBF v R [2009] NSWCCA 231

HEARING DATE(S): 22 June 2009

JUDGMENT DATE:
10 September 2009

JUDGMENT OF: Spigelman CJ at 1; McClellan CJatCL at 2; Johnson J at 7

DECISION: 1. Time extended for the Applicant to seek leave to appeal against sentences imposed at the Newcastle District Court on 22 August 2008.
2. Leave granted to appeal with respect to sentence.
3. Appeal against sentence dismissed.

CATCHWORDS: CRIMINAL LAW - sentence - aggravated dangerous driving causing death (two counts) - Form 1 offence of aggravated dangerous driving causing grievous bodily harm - 17-year old driver on learner’s permit - grossly excessive speed in residential area - some impairment by alcohol - collision with power pole - 16 and 17-year old passengers killed - 17-year old passenger seriously injured - late pleas of guilty - offender denies being driver until shortly before trial date - sentences of imprisonment imposed - whether error in assessment of aggravating features of offences - whether error in use of victim impact statements of families of deceased victims - whether breach of De Simoni principle in findings of fact - claim that findings amounted to findings of manslaughter - whether sentences manifestly excessive - relevance of offender’s youth, inexperience and immaturity - importance of general deterrence - no error established - sentences not manifestly excessive

LEGISLATION CITED: Crimes Act 1900
Children (Criminal Proceedings) Act 1987
Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912
Crimes and Other Acts (Amendment) Act 1974
Crimes (Life Sentences) Amendment Act 1989

CATEGORY: Principal judgment

CASES CITED: The Queen v De Simoni (1981) 147 CLR 383
Clarke v R [2009] NSWCCA 49
R v Jurisic [1998] 45 NSWLR 209
R v Whyte (2002) 55 NSWLR 252
R v Berg [2004] NSWCCA 300
R v Tzanis [2005] NSWCCA 274
House v The King (1936) 55 CLR 499
R v Merritt (2004) 59 NSWLR 557
R v Takai (2004) 149 A Crim R 593
R v Previtera (1997) 94 A Crim R 76
R v Bollen (1998) 99 A Crim R 510
Whybrow v R [2008] NSWCCA 270
Wilson v The Queen (1991) 174 CLR 313
R v Vukic [2003] NSWCCA 13
R v Buttsworth (1983) 1 NSWLR 658
R v Borkowski [2009] NSWCCA 102
Carroll v The Queen (2009) 83 ALJR 579
R v Hooper [2004] NSWCCA 10
Attorney General v Bindoff (1953) 53 SR(NSW) 489
Director of Public Prosecutions v Yeo [2008] NSWSC 953; 51 MVR 157
R v Forbes (2005) 160 A Crim R 1
R v Cameron (2005) 157 A Crim R 70
R v Cramp (1999) 110 A Crim R 198
Nydam v R [1977] VR 430
The Queen v Lavender (2005) 222 CLR 67
Thompson v R [2007] NSWCCA 299
Gillett v R (2006) 166 A Crim R 419
R v Peake (2002) 37 MVR 354; [2002] SASC 303
R v Slattery (1996) 90 A Crim R 519
SS v R [2009] NSWCCA 114
R v Voss [2003] NSWCCA 182
IE v R [2008] NSWCCA 70; 183 A Crim R 150
Director of Public Prosecutions v Neethling [2009] VSCA 116; 52 MVR 422
R v Bloomfield (1998) 44 NSWLR 734
Veen v The Queen (No. 2) [1987-1988] 164 CLR 465
R v Musumeci (NSWCCA, 30 October 1997, BC9705741)
R v MMK (2006) 164 A Crim R 481
Markarian v The Queen (2005) 228 CLR 357
Attorney General’s Application under s.37 of the Crimes (Sentencing Procedure) Act 1999 (No. 1 of 2002) (2002) 56 NSWLR 146

PARTIES: SBF (Applicant)
Regina (Respondent)

FILE NUMBER(S): CCA 2007/9536

COUNSEL: Ms A Francis (Applicant)
Mr L Babb SC; Ms M Rabsch (Respondent)

SOLICITORS: Legal Aid NSW (Applicant)
Solicitor for Public Prosecutions (Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 07/31/0344

LOWER COURT JUDICIAL OFFICER: Coolahan DCJ

LOWER COURT DATE OF DECISION: 22 August 2008

2007/9536

SPIGELMAN CJ
McCLELLAN CJ at CL
JOHNSON J
10 September 2009

SBF v Regina

Judgment

1 SPIGELMAN CJ: I agree with Johnson J.

2 McCLELLAN CJ at CL: I agree with the orders proposed by Johnson J and with his Honour’s reasons. As has been recognised in a number of cases to which Johnson J refers, the correct application of the High Court’s decision in The Queen v De Simoni (1981) 147 CLR 383, especially at 389, can cause difficulties when sentencing for the statutory offence involving the death of a person by the use of a motor vehicle.

3 In the present case the factual findings which the sentencing judge made, including that the Applicant “could not have but failed to realise the very serious danger in driving in the way he did” and “it must have been abundantly clear to him … that the course of driving which he embarked upon was potentially lethal”, were findings which were clearly open. His Honour concluded that the offences were “extremely serious” and that the sentence must reflect an adequate degree of general deterrence.

4 The maximum penalty for the offence contrary to s 52A(2) Crimes Act 1900 is 14 years imprisonment and for the offence contrary to s 52A(4) Crimes Act 1900 is 11 years. The maximum penalty for an offence of manslaughter is 25 years imprisonment.

5 The Applicant was sentenced on Count 1 (taking into account the Form 1 matter) to a non-parole period of two years and nine months with a balance of term of three years and seven months. On Count 2 he was sentenced to a non-parole period of two years and three months with a balance of term of two years and three months. The overall sentence was a term of imprisonment of seven years and 10 months with a non-parole period of four years and three months.

6 Consideration of either the individual sentences or the overall sentence indicates that, notwithstanding the Applicant’s youth, the sentences imposed were appropriate for the offences to which he pleaded guilty. To my mind, a more severe sentence could have been imposed. But more importantly having regard to the issues raised by the Applicant, the length of the sentences do not suggest that the Applicant has been sentenced as if he had been convicted of manslaughter. If that had been the case more significant penalties would have been appropriate.

7 JOHNSON J: Once again, this Court is called upon to consider the application of sentencing principles to a case involving a young driver, high speed, alcohol and death on the roads. In this case, the driver was a juvenile offender. The tension between the different purposes of sentencing is at its highest in a case such as this.

8 The Applicant, SBF, applies for an extension of time to seek leave to appeal with respect to sentences imposed by his Honour Judge Coolahan at the Newcastle District Court on 22 August 2008.

9 The Applicant was born in October 1989. On 7 November 2006, when the Applicant was 17 years old, he drove a vehicle at high speed, resulting in the death of two young persons, MA and DF, and serious injury to a third young person, KL.

10 Because the Applicant and the victims of the offences were under 18 years of age at the time of the offences, each of them will be referred to by initials in this judgment to meet the requirements of s.11 Children (Criminal Proceedings) Act 1987.

11 On 8 May 2008, the Applicant pleaded guilty in the District Court to an indictment containing two counts of aggravated dangerous driving causing death, an offence under s.52A(2) Crimes Act 1900 with a maximum penalty of imprisonment for 14 years. In addition, the Applicant requested the sentencing Judge to take into account, on a Form 1, an offence of aggravated dangerous driving causing grievous bodily harm under s.52A(4) Crimes Act 1900, for which the maximum penalty is imprisonment for 11 years.

12 The two counts contained on the indictment alleged that the Applicant drove in a manner dangerous to other persons (s.52A(1)(c)), in circumstances of aggravation, namely whilst driving at a speed that exceeded the applicable speed limit by more than 45 kilometres per hour (s.52A(2); s.52A(7)(b)). The Form 1 matter involved an offence of driving in a manner dangerous to persons (s.52A(3)(c)) in circumstances of aggravation, namely whilst driving at a speed that exceeded the applicable speed limit by more than 45 kilometres per hour (s.52A(4); s.52A(7)(b)).

13 Following a sentencing hearing, the Applicant was sentenced on 22 August 2008 as follows:

(a) Count 2 - aggravated dangerous driving causing the death of DF - imprisonment comprising a non-parole period of two years three months commencing on 5 August 2008 and expiring on 4 November 2010 with a balance of term of two years three months commencing on 5 November 2010 and expiring on 4 February 2013;

14 The overall effective sentence imposed upon the Applicant involved imprisonment for seven years 10 months to date from 5 August 2008, with a non-parole period of four years three months, with the Applicant to be eligible for release on parole on 4 November 2012.

15 Pursuant to s.19 Children (Criminal Proceedings) Act 1987, his Honour directed that the sentences of imprisonment be served in a juvenile facility until the Applicant attained the age of 21 years (viz 25 October 2010).

16 The Applicant was disqualified from driving, on each count, for a period of three years from 22 August 2008.

Facts of Offences

17 Evidence tendered, without objection, in the District Court revealed the following.

18 On the evening of 6 November 2006, the Applicant was socialising with a number of young persons at the flat of an adult friend, Sterling Pinkstone. Amongst those at the flat were young men, MA (aged 17 years) and DF (aged 16 years). Also present was a young woman, KL (aged 17 years). The group had dinner and alcohol was consumed during the evening. Mr Pinkstone went to bed about 1.00 am. About 45 minutes later, the Applicant went into Mr Pinkstone’s room and asked him for some cigarettes. Mr Pinkstone told the Applicant that there were cigarettes in his cupboard. The Applicant went to the cupboard and left the room. A short time later, Mr Pinkstone got out of bed and noticed that his vehicle, a 1987 Holden Commodore VL sedan, was missing. He asked his flatmate about the vehicle and was told that the Applicant, along with DF, MA and KL, had left the flat together at about the same time as the vehicle went missing. Mr Pinkstone noticed that a spare set of keys to his vehicle, which had been on the kitchen table, were no longer there. He attempted to contact the Applicant and MA by ringing their mobile phones, but the calls rang out.

19 At about 2.30 am on 7 November 2006, the Applicant was driving Mr Pinkstone’s Holden Commodore in Mount Hutton. The vehicle did not have an anti-lock braking system or airbags. The Applicant had been issued with a learner’s permit on 19 December 2005, but had never held a driver’s licence. He was to be tested for his provisional licence the following week and had undertaken preparations for that test. There were four people in the Commodore. The Applicant was driving and MA was in the front passenger seat. DF was seated in the back behind the Applicant. KL was the other backseat passenger.

20 A delivery truck driver, Andrew Trenerry, was driving on Wilson Road, Mount Hutton. He was about to make a delivery at the Lake Macquarie Shopping Centre, when he saw the Commodore pull out of the driveway of the shopping complex and turn to the right in front of his truck. The Commodore was estimated to be travelling at 40 kph - 50 kph at the time of turning, and the back wheels lost traction with the road surface. Mr Trenerry followed the Commodore and saw it turn left at the next intersection into Violet Town Road. When Mr Trenerry reached the intersection a few seconds after the Commodore, he could see it travelling along the road and said it was “sideways, doing wheel spins up the hill, the car was going from one side of the roadway, going close to the gutter, then to the other side”. Mr Trenerry saw “smoke coming from the wheels”.

21 Violet Town Road is an urban sub-arterial road carrying moderate traffic volumes along a north-south spine, in residential communities, to the west of the main north-south route (Pacific Highway) and the eastern side of Lake Macquarie. In the vicinity of the collision, the roadway provided for two lanes of through traffic, one in each direction.

22 The roadway was dry at the time and the weather was fine. The speed limit in the area was 60 kph.

23 Soon after 2.30 am, residents in the vicinity of the intersection of Violet Town Road and Regent Street, Tingara Heights, were awoken by what they described as a “whooshing” sound. The intersection was 1.6 kms from the Lake Macquarie Shopping Centre. One resident thought that the sound was of a car travelling at high speed. Witnesses heard a minor bang followed by a larger bang. One witness who lived on the intersection described the larger bang as “like a bomb going off … the house shook … the windows in the bedroom were vibrating”. The witness looked out and saw that the Commodore had hit a power pole.

24 Calculations of the speed of the Commodore at the time of impact were undertaken using physical evidence obtained from the scene. Using two accepted and independent methods of calculating speed, the vehicle was found to be travelling at a speed of 125 kph - 144 kph. His Honour Judge Coolahan sentenced the Applicant on the basis that the speed at the time of the collision was 125 kph, some 65 kph over the speed limit.

25 The driver’s side of the car impacted with a power pole. The force of the collision caused the vehicle to break in two, with the front of the car (including the two front seats) separating from the rear. The point of impact of the power pole was just behind the vehicle’s centre B pillar. The power pole penetrated the car by more than the pole’s full width. The rear of the vehicle remained embedded on the power pole while the front portion travelled a further 10 metres into Regent Street.

26 Those in the front of the Commodore, the Applicant and MA, were thrown from the vehicle as a result of the impact. MA was lying on the road near the gutter, approximately 35 metres from the collision point. The Applicant was approximately two metres from the power pole.

27 Five days later, MA died in John Hunter Hospital from injuries sustained in the collision.

28 DF and KL remained in the rear seat of the vehicle, restrained by their seatbelts. DF bore the full force of the impact and died instantly. KL suffered severe brain injury. She was in a coma for some time and was hospitalised for seven months, during which time she was completely paralysed down the right side of her body. She suffered fractures to the skull, jaw, neck, pelvis, spinal vertebrae and ribs. Her right hand was broken and was reconstructed with wires and a metal plate was inserted in her left wrist. Her diaphragm was torn, and her liver damaged. She had a tracheotomy, which left a scar and damage inside her throat which made it difficult for her to swallow and has changed her voice. She continues to suffer back, neck and stomach pain. She continues to suffer disabling migraine-type headaches. The head injury has affected her short-and-long-term memory. Apart from these physical injuries and disabilities, KL was affected psychologically as well, in ways explained to the sentencing Court.

29 Having been thrown from the vehicle, the Applicant was lying still about two metres from the power pole, with his upper torso on the footpath and his lower body on the road. The Applicant appeared to regain consciousness and stood up. He said to a witness who had left his nearby house “Where am I?” and started shouting and swearing. The Applicant said “I’ve got to get out of here”. By this stage, the police had arrived and the Applicant was assisted by civilian witnesses so that he did not cause himself further injury.

30 The Applicant was taken to hospital for treatment. He sustained bruising across his lower abdomen, mainly on the right-hand side above his hipbone, and on his right flank. Associated with this injury was the re-opening of a two-week old incision where his appendix had been removed. He had a dislocation of his right tenth rib. There was a small laceration of the right-upper eyelid and a small laceration above his right ear. There was associated linear bruising with the lacerations. A chest CT scan showed peripheral opacification, resulting from either a pulmonary contusion or aspiration. The Applicant was discharged from hospital on 10 November 2006.

31 The Applicant had been drinking alcohol at Mr Pinkstone’s flat. A blood sample was taken from the Applicant at hospital about an hour and 10 minutes after the collision. The blood alcohol content of the sample was found to be 0.058 grams per 100 ml of blood. In addition, 0.039 mg per litre of Delta 9-THC acid was detected in the Applicant’s blood. Dr Judith Perl, a pharmacologist, formed the view that, at the time of driving, the Applicant was under the influence of alcohol to an extent that there would have been some impairment of his driving ability. The discovery of Delta 9-THC acid indicated cannabis use at some stage by the Applicant. However, Dr Perl was unable to say whether it evidenced recent use or a residual concentration of cannabis arising from earlier use, so that an opinion could not be expressed concerning impairment by cannabis at the time of the collision. In these circumstances, his Honour disregarded the presence of Delta-9 THC acid in the Applicant’s blood.

History of Proceedings

32 It is pertinent to refer to the chronology of events between the commission of the offences and the imposition of sentence in the District Court.

33 The offences were committed on 7 November 2006.

34 On 16 November 2006, the Applicant made a signed statement concerning the collision in which he nominated MA as the driver of the vehicle at the time of the collision. In the statement, the Applicant said:

“I remember saying things to

about his driving, and I remember

saying similar things, but

didn’t slow down as far as I remember.

continued speeding along Violet Town Road and I remember we came close to some gutters and traffic islands as we proceeded along the Road. The car fish-tailed a few times until the road levelled out. Almost the last thing I remember is the car’s hub-caps hitting the left-hand gutter (on my side) somewhere near the intersection with Croudace Road. I don’t remember the car veering across the road and hitting the electricity pole near Regent Street, but I understand that is what happened. The next thing I remember is waking up in hospital.”

35 On 23 November 2006, the Applicant attended the Newcastle Police Station with his solicitor. The Applicant declined to take part in a record of interview with police, but the statement dated 16 November 2006 was handed to police.

36 On 23 November 2006, the Applicant was charged with a number of offences arising from the collision.

37 The officer-in-charge of the investigation, Senior Constable Harman of the Newcastle Crash Investigation Unit, prepared a report dated 7 January 2007 and a consultant engineer, Grant Johnstone, completed a report dated 6 October 2007. Both Senior Constable Harman and Mr Johnstone expressed similar opinions as to the dynamics of the collision. In summary, the conclusion was that moments prior to the collision, the Commodore was being driven in a generally southerly direction along Violet Town Road at a speed of between 125 kph and 144 kph. The driver was in the process of rounding a slight right-hand bend near the intersection of Croudace and Violet Town Roads, when the driver allowed the vehicle to run wide out of the bend. This caused the passenger side wheels to come into contact with a concrete kerb on the eastern side of Violet Town Road. The driver corrected the vehicle by steering to the right. This steering caused the vehicle to commence to rotate clockwise. The driver again tried to correct the vehicle by applying steering to the left. This caused the vehicle to commence to rotate anti-clockwise. The vehicle travelled in an arced path in a yaw across to the incorrect side of the road. The vehicle impacted with and mounted the western kerb and travelled briefly on the grassed footpath before impacting with the power pole.

38 Senior Constable Harman and Mr Johnstone were each of the opinion that the force of the impact would have forced the occupants in the front of the vehicle violently to their right. The driver would have been briefly, but violently, restrained by the seatbelt over his right shoulder, as well as being restrained by the lap sash. The front passenger would not have been restrained by his seatbelt and would have come into contact with anything immediately to his right.

39 The force of the collision caused the front of the vehicle to separate from the rear. The separation occurred forward of the centre B pillar, and when this separation occurred, the driver’s seatbelt, with one end still attached to the B pillar was ripped from the floor pan of the car. Both Senior Constable Harman and Mr Johnstone expected that the driver would have ended up in the vicinity where the Applicant was first observed. The front portion of the vehicle was halfway through the turn and the energy caused the occupant of the front-passenger seat to be launched backwards out of his seat and there was nothing to stop his trajectory. Both Senior Constable Harman and Mr Johnstone expected the front passenger would have come to rest in the area further along Regent Street where MA was located.

40 Dr Kevin Lee, senior specialist forensic pathologist, was engaged to review the photographs of the collision and of the injuries sustained by MA and the Applicant. Dr Lee provided a report in which he concluded that the injuries found on the Applicant were entirely consistent with him having been the driver, and that the pattern of injuries found on MA were not consistent with him being the driver at the time of the collision. Dr Lee’s opinion was supported by Associate Professor Timothy Lyons, the forensic pathologist who undertook the autopsies on the deceased. Associate Professor Lyons concluded that the injuries he observed on MA were consistent with him being the front passenger in the vehicle at the time of the collision.

41 On 4 December 2007, a three-day hearing commenced at the Broadmeadow Children’s Court which culminated in the Applicant being committed to stand trial in the Newcastle District Court. The prosecution case against the Applicant was based upon engineering, crash investigation and forensic evidence outlined above, which pointed very strongly to the Applicant being the driver of the vehicle at the time it struck the power pole.

42 The Magistrate held that there was a prima facie case, and the parties addressed on whether the matters should be dealt with according to law or finalised in the Children’s Court. The Magistrate determined that the penalties available under s.33 Children (Criminal Proceedings) Act 1987 were not sufficient to accommodate the seriousness of the case (if the Applicant was convicted), and that the matters should be dealt with according to law on indictment.

43 On 21 February 2008, the Applicant was arraigned at the Newcastle District Court and entered pleas of not guilty to the three counts then contained in the indictment. A trial date was fixed to commence on 12 May 2008.

44 On 8 May 2008, the matter was relisted and the Applicant pleaded guilty to the counts involving the deaths of MA and DF with the count concerning grievous bodily harm to KL being placed on a Form 1. The trial date of 12 May 2008 was vacated.

45 The sentencing hearing proceeded before his Honour Judge Coolahan on 1 and 5 August 2008, with the Applicant being remanded in custody on the latter date.

46 On 22 August 2008, sentences of imprisonment were passed which are the subject of the present application.

The Applicant’s Subjective Features

47 The Applicant was 17 years and two weeks old at the time of the offences. He had no criminal or traffic history. As mentioned earlier, he had held a learner’s permit for about 11 months, but had not obtained a driver’s licence.

48 The Applicant gave evidence at the sentencing hearing and wrote a letter which was tendered in evidence (ROS21-22). The sentencing Judge made adverse findings concerning aspects of the Applicant’s evidence, which will be mentioned later in this judgment (at [59], [64]).

49 The Applicant had formed a relationship with a young woman since the collision, and a son has been born to the relationship in March 2008. Testimonials were tendered from the Applicant’s partner and her father, from the Applicant’s grandmother and mother and from a butcher with whom the Applicant had undertaken work experience. Each of the testimonials spoke generally as to the Applicant’s good character (ROS22-23).

50 As required by law, a background report prepared by officers of the Department of Juvenile Justice was before the sentencing Judge. His Honour made extensive reference to this report in the remarks on sentence (ROS13-16).

51 A psychological report by Ms Katie Seidler dated 18 June 2008 was tendered on sentence. The sentencing Judge made extensive reference to Ms Seidler’s report (ROS16-21). Ms Seidler’s report recited the Applicant’s satisfactory progress through primary school before difficulties developed in his secondary education, culminating in his expulsion from school in Year 9. The family history given to Ms Seidler by the Applicant referred to a disturbed and dysfunctional family environment, including substance abuse and domestic violence. The Applicant informed Ms Seidler that he had been unemployed for about two years. Psychological testing showed that the Applicant’s overall intelligence was estimated to be in the average range.

52 As mentioned earlier, the Applicant was injured in the collision. A report from the treating doctor was tendered on sentence (ROS23-24). The Applicant was unconscious upon arrival at hospital. He had an open appendectomy wound. He had a dislocated rib, but no fractures. The Applicant had sustained cuts on his eyelid, scalp and knee that required sutures. He had pulmonary contusions. There was no evidence of any ongoing injury at the time of sentence and this was consistent with the treating doctor’s prognosis.

53 The aunt of the victim, DF, gave evidence on behalf of the Applicant and said that the Applicant was happy-go-lucky before the collision and had expressed to her his contrition and remorse (ROS22).

Grounds of Appeal

54 The Applicant relied upon the following grounds of appeal:

(a) Ground 1 - the sentencing Judge erred in his assessment of the aggravating features of the offences.

(b) Ground 2 - the sentencing Judge erred in the manner in which he had regard to the harm to third parties.

(c) Ground 3 - the sentencing Judge erred in making findings that were capable of giving rise to the more serious offence of manslaughter.

(d) Ground 4 - the sentence is manifestly excessive.

Some Findings by the Sentencing Judge

55 His Honour made detailed remarks on sentence. It is appropriate to set out parts of the remarks on sentence which have attracted attention in submissions. I have underlined certain passages about which particular complaint is made in Ground 3.

56 After reciting the facts, his Honour made the following observations (ROS8):

“These offences are of course extremely serious. This case is yet another example of young people failing to heed the warnings regarding the dangers of speed, whilst driving motor vehicles. There was on the part of the offender, and it is so conceded by his learned counsel, a complete abandonment of responsibility. As a result of this appalling incident of driving, two young men have lost their lives and another young woman has been seriously and permanently impaired. The grief and loss consequent upon these deaths and injury, can barely be imagined but some idea can be gained from the victim impact material.”

57 After referring to the victim impact statements, the sentencing Judge said (ROS12-13):

“I have taken these statements into account in the way in which it is appropriate to do so on sentence. What they do, in my view, is to provide a real insight into the extent of trauma, pain and loss that typically results from crimes such as this, not just to the victims but to their family and friends as well. Innocent people’s lives have been affected forever. I suspect that even these statements provide only a glimpse of the day to day pain and suffering endured by the family and friends of the deceased and by [KL] .

It is difficult to know what more Parliament can do to discourage people, such as this offender, from driving in the way that he did. The television is saturated with ads which point out the dangers of speeding on public roads. The offences which used to be known as culpable driving are in themselves, probably the only offences in the Crimes Act which do not require a criminal intent. However, these offences did involve a complete abandonment of responsibility.

Even given the youth of the offender, he could not have but failed to realise the very serious danger in driving in the way in which he did but he did so nonetheless

.”

58 After referring extensively to the report of Ms Seidler, his Honour said (T21.6):

“I have found the report from Dr Seidler, with due respect to her, of limited assistance for reasons which will become obvious shortly. I do not accept that the offender has little or no memory of the events leading up to the accident. Further, whilst this offence was committed whilst he was only sixteen

years of age, he was on the verge of obtaining his provisional licence and,

as I said earlier, it must have been abundantly clear to him and, indeed, anyone else in his position that the course of driving which he embarked upon was potentially lethal. That potential came to fruition

.”

59 His Honour turned to an assessment of the Applicant’s evidence, in particular with respect to the circumstances of the offences and the Applicant’s recollection of the events (ROS24-26):

“A real issue which arose during the course of the offender's evidence and, indeed, which has been present throughout the case, is the point at which he recognised his guilt, vis-a-vis, the point in time when he decided to admit his guilt and also as to how much of the accident and the events leading up to it, he actually remembers.

Much cross-examination was directed to the version which the offender gave to police on 23 November 2008 as contained in the statement signed by him on 16 November 2006, some nine days after the accident and at a time when he not

had access to the statements supplied by Mr Trenerry. There was, of course, a considerable degree of similarity between the statements signed by the offender and the account given by Mr Trenerry.

In his evidence, the offender attempted to explain this away in various ways. At one stage he said that people had told him things. He also said that he assumed that this would be the way in which hoons behaved, having conceded that he was driving like a hoon at the time. At another point, he said that he had been told that there were marks on the roadway. At another point, he said that he may have been guessing and that the similarity between his version and that of Mr Trenerry was, therefore, by implication, coincidental.

His answers in relation to this, are to say the least, inconsistent and unsatisfactory. I have no doubt that he has significantly more memory of the events preceding the accident than he claims to have and that in that regard, he simply transposed himself for the deceased [MA] in the statement of 16 November 2006. I do not mean to say by this that his memory of the events preceding the accident is necessarily perfect, but I am satisfied beyond reasonable doubt that it extended to the details of the driving which are set out in that statement which he attributed to [MA] .

Having said that, however, I should make it abundantly clear that whilst he failed to acknowledge his guilt and responsibility in respect of these offences until late in the piece, I do take into account his age, the fact that he may not have had the wherewithal to face the enormity of what he done and the consequences thereof and I stressed throughout argument the offender is not to be punished additionally for this failure but rather, in my view, it is more relevant to issues of remorse and the timing of his pleas.

I must say that the overall impression that I gained from his evidence is that he is still reluctant to fully acknowledge the consequences of his actions, but again this is not a matter which would involve extra punishment but rather maybe a reflection of his youth and inability to accept and acknowledge that he has caused the deaths of two persons and a very serious injury of another and the consequences for not only them and their families but for him as a result.

Insofar as in his evidence the offender claimed to have no memory of anything after the group being at the Lake Macquarie Fair. I reject this.”

60 The sentencing Judge referred to the relevance of alcohol to the collision (ROS26):

“He

submitted that I should ignore the aspect of cannabis being present in the blood of the offender at the time of the collision and I accept this submission in that Ms Perl could not be satisfied that it was relevant to his ability to drive. However, I do take into account the fact that his driving was partially impaired by his consumption of alcohol.”

61 With respect to contrition, his Honour said (ROS26-27):

“Mr Booth

submitted that I should accept that the offender was contrite and remorseful and that these feelings were heartfelt. I have some doubts about this, as I said earlier. I have no doubt that he suffers because his friends had been killed but I just think that he still has some problems coming to grips with the fact that his conduct was the cause of their death and the serious injury to

. As Mr Bates

has put it, his remorse and contrition was late.”

62 His Honour addressed a defence submission concerning the victim impact statements in the following way (ROS27):

“Mr Booth submitted that whilst the victim impact statements excited feelings of sadness they were not relevant to sentencing proceedings. Whilst this may strictly be true, in my view they do no more than outline, in a very real way, a glimpse of what must be expected to flow from the deaths of two young men and the very serious injury of a young woman.”

63 In the course of considering a defence submission concerning the Applicant’s youth, his Honour said (ROS27):

“Mr Booth drew attention to the offender’s youth and to the fact that perhaps because of this he had less ability to deal with responsibility. Whilst this may be the case it seems to me that this is somewhat of a double edged sword. The reality is that the laws of this State permit young people to drive motor vehicles.

As I said earlier, it is difficult to imagine what else Parliament can do to make it clear to young people that driving vehicles at speed on public streets is potentially lethal. The offender must have been acutely aware of this

. In these circumstances it seems to me that the courts must then assume a role of ensuring that like minded offenders are discouraged from driving in the same manner by imposing sentences that reflect an adequate degree of general deterrence.”

64 His Honour accepted certain Crown submissions concerning the Applicant’s manner of driving leading to the collision, general deterrence and the utilitarian discount for the pleas of guilty (ROS29):

“Mr Bates submitted that as soon as the offender took the car he assumed the responsibility of a prudent driver and I accept this submission. He referred to the evidence, which the offender himself gave, namely that he drove like a hoon. He submitted that I would accept beyond reasonable doubt that the version that the offender gave in his statement dated 16 November 2006 was what actually happened, apart from the fact that [MA] was a passenger and the offender was the driver. And I have no doubt that this is the case.

Whilst Mr Bates conceded that, generally speaking, aspects of general deterrence, when dealing with young offenders, give way to considerations of rehabilitation, he submitted that this is not so in a case such as this, and I agree with this submission. Mr Bates submitted that the discount for the pleas should be in the order of only ten percent and I agree that this figure is appropriate. The pleas were entered very late and after considerable investigation had been completed by the Crown and at a point where the Crown was obviously prepared for trial.”

65 In the course of addressing factors under s.21A Crimes (Sentencing Procedure) Act 1999, his Honour said (ROS29):

“In dealing with the offender I have taken into account those matters required to be considered under s 21A of the Crimes (Sentencing Procedure) Act. Aggravating factors which are not part of or inherent in the charges themselves are difficult to identify except perhaps for the very serious nature of the injuries to [KL] . As against that, the offender does not have any record of previous convictions. I am satisfied that he was a person of otherwise good character.”

66 With respect to remorse, his Honour concluded (ROS28-29):

“On the question of remorse, this is a difficult issue. On balance, however, I am satisfied that whilst he still has some reservations in this regard, he has by his ultimate pleas acknowledged that the death and injuries have been caused by his actions.”

67 His Honour observed that the Form 1 matter, to be taken into account on sentence for Count 1, was “a very serious offence and more than just lip service must be paid to it” (ROS30).

68 Before moving to imposition of the specific sentences, his Honour said (ROS30):

“As to the offences themselves, as I said they are incredibly serious. The driving involved many of the aggravating factors set out in the Court of Criminal Appeal Guideline in

Whyte

, there were two deaths and one grievous bodily harm occasioned, the degree of speed was very significant. There was some intoxication, a number of people were put at risk, namely the three passengers in the vehicle in particular. It may be that at that time of the night traffic was light but the reality is that anyone who was on the road at that time or even in the vicinity would have been put at risk by this driving. The driving was erratic and aggressive, the length of the journey was at least 1.6 kilometres and there is reference in the offender’s statement to warnings being issued by passengers about the nature of the driving.”

69 His Honour accepted a defence submission that “special circumstances” should be found by reference to the Applicant’s youth, his need for support upon release from custody and the fact that it was to be his first time in custody (ROS28). However, his Honour rejected a defence submission that there should be a significant alteration to the statutory ratio so that general deterrence could be reflected in the head sentences rather than the non-parole periods. His Honour observed that “the aggregate non-parole periods must also reflect a significant aspect of general deterrence” (ROS28).

70 The sentencing Judge had regard to the principles concerning concurrency, accumulation and totality (ROS28, 30-31).

71 The sentence imposed for Count 2 involved a non-parole period which was 50% of the full term. The sentence imposed for Count 1 (including the Form 1 offence) involved a non-parole period which was 44% of the full term. Although s.44 Crimes (Sentencing Procedure) Act 1999 applies to each individual sentence (Clarke v R [2009] NSWCCA 49 at [11]), it may be noted that the total effective non-parole period was 54% of the total effective head sentence.

Ground 1 - The Sentencing Judge Erred in his Assessment of the Aggravating Features of the Offences

Submissions

72 Ms Francis, counsel for the Applicant, submitted that the sentencing Judge inappropriately took into account a number of features as aggravating features. She submitted that his Honour (at [68] above) treated as aggravating factors matters which were inherent in the elements of the offences themselves. In particular, it was submitted that:

(a) the degree of speed in this case was an element of the aggravated offence and to have additional regard to it was an error;

(b) the fact that there were two deaths was not an aggravating feature where two charges were laid whilst the fact of the occasioning of grievous bodily harm to KL was to be taken into account, it did not aggravate the offences;

(c) the length of the journey (1.6 kms) was not, when regard was had to the generic offence, objectively aggravating and in any event it was unclear if the dangerous driving extended over the entirety of the journey;

(d) victims of offences such as these are always the persons “put at risk” and to have additional regard to this fact as a circumstance of aggravation must be double counting;

(e) it will always be the case that if other persons were relevantly present when such an offence was committed, then they would be put at risk - this was not an aggravating feature of the case;

“ignored warnings”

73 The Crown submitted that his Honour clearly appreciated that s.21A(2) Crimes (Sentencing Procedure) Act 1999 required that the Court not have additional regard to any aggravating factor on sentence if it was an element of the offence. His Honour went on to consider the guideline judgments in R v Jurisic [1998] 45 NSWLR 209 and R v Whyte (2002) 55 NSWLR 252 in the passage set out at [68] above. The Crown submitted that it was correct for his Honour to separately consider the aggravating features identified in these guidelines judgments: R v Berg [2004] NSWCCA 300 at [15].

74 In response to the submissions of the Applicant (see [72] above), the Crown submitted:

(a) the evidence was that the Applicant’s minimum speed at the point of impact was 65 kph over the speed limit, and therefore significantly faster than the speed that would have made him liable for the aggravated offence - he was driving at a speed which was about 40% higher than the speed that would have made him liable for the aggravated offence - this was a highly relevant matter and it was appropriate to be taken into account: R v Berg at [25];

(b) his Honour had not taken into account, as an aggravating factor of each offence, the fact that there was a death involved - rather his Honour had described these facts, conscious of the need not to have regard to aggravating factors twice - further, the seriousness of the injury to KL, in an aggravated dangerous driving occasioning grievous bodily harm case, was relevant to the objective gravity of the offence: R v Tzanis [2005] NSWCCA 274 at [13];

(c) contrary to the Applicant’s submissions, the Applicant’s dangerous driving extended over the entirety of the journey from the Lake Macquarie Shopping Centre to the point of impact - so much was demonstrated by Mr Trenerry’s observations and the Applicant’s own account in his letter to police dated 16 November 2006 - his Honour was entitled to take into account at least 1.6 kms of dangerous driving, as the length of the journey during which others were exposed to risk, and with the danger created by the length of the journey varying according to other circumstances such as the locale - in this case, a continuous course of dangerous driving over 1.6 kms through roads beside a retail shopping area, and in an established residential neighbourhood, entitled his Honour to take the length of driving into account;

(d) the more people an offender has in his or her car at the time of engaging in dangerous driving, the greater the risk involved and the greater the objective seriousness of the offending ( R v Berg at [26]) - every passenger in the Applicant’s car was either killed or very seriously injured - however that does not mean that it is double counting to take into account the number of people put at risk;

(e) read in context, what his Honour was saying was that all the passengers in the car were put at risk and anyone else on the road, either driving or on foot, during this course of dangerous driving was put at risk by the erratic and aggressive driving over the course of at least 1.6 kms - no error was revealed in this approach;

(f) his Honour’s finding that the Applicant had ignored warnings was not, the Crown submitted, based on speculation - it was open to his Honour to so find on the evidence to the criminal standard (ROS25) - the sentencing Judge found that the Applicant’s account of 16 November 2006 was false in only one respect, his denial that he was the driver, but otherwise constituted an account of events which was not denied by the Applicant in cross-examination (T19, 1 August 2008).

Decision

75 This Court is bound by findings of fact of the sentencing Judge, unless they were not open on the evidence or unless error is shown in the sense referred to in House v The King (1936) 55 CLR 499 at 504: R v Merritt (2004) 59 NSWLR 557 at 573 [61].

76 The remarks on sentence of the sentencing Judge must be fairly read. The sentencing Judge was conscious of the need to avoid double counting of aggravating factors, as demonstrated by the care taken by reference to s.21A considerations (see [65] above). The portion of the remarks on sentence challenged under this ground addresses matters which all bore upon the objective seriousness of the offences.

77 It is necessary to bear in mind, as Howie J (Spigelman CJ and Wood CJ at CL agreeing) observed in R v Berg at [15], that relevant factors influencing an assessment of the objective seriousness of an offence of this type were to be found in three distinct, but related, areas:

(a) the elements of the offence of aggravated dangerous driving;

(b) the guideline judgment in R v Whyte ; and

(c) s.21A Crimes (Sentencing Procedure) Act 1999 ,

78 By reference to the submissions set out at [72] above, I conclude:

(a) the sentencing Judge was entitled to have regard to the actual speed of 125 kph as an aggravating factor given that it was significantly above the statutory aggravating level (in this case) of 105 kph - this was a most relevant matter to be taken into account which aggravated the seriousness of the offence;

(b) I do not accept that the sentencing Judge treated as an aggravating factor of each offence the fact that two deaths had resulted - that two deaths had resulted, reflected in two separate offences, was relevant to the totality of the Applicant’s criminality;

(c) the sentencing Judge did not err in referring to the length of the journey of 1.6 kms, and the course of driving during that journey, as an aggravating factor on sentence - the observations of Mr Trenerry pointed to a course of dangerous driving over a significant distance on residential streets which culminated in the vehicle colliding with the pole at high speed: R v Takai (2004) 149 A Crim R 593 at 600 [39] - it is noteworthy that the Applicant’s counsel in the District Court had submitted that “the length of the journey was 1.6 kilometres and your Honour can find that that is indeed the length that he exposed those people [MA, DF and KL] to that risk” (T5.48, 5 August 2008) - this finding was open to the sentencing Judge in the circumstances of the case;

(d) it was open to the sentencing Judge to refer to the number of persons put at risk as a circumstance of aggravation - there were three other persons in the Commodore driven by the Applicant - the Applicant’s counsel in the District Court had accepted that “the risk to those in the car was extreme” (T5.47, 5 August 2008) - the Applicant knew that he had passengers in the motor vehicle who were in danger because of the manner in which he drove the vehicle: R v Berg at [26] - the fact that each of them was killed or seriously injured does not render it impermissible for the sentencing Judge to have regard to the number of people put at risk by the course of driving, as an aggravating factor;

(e) the observation of the sentencing Judge, fairly read, meant that all the passengers in the car were put at risk and anyone else who may be on or in the vicinity of the roadway at the time would likewise be put at risk by the Applicant’s course of driving over a significant distance - this approach was open to the sentencing Judge;

79 It has not been demonstrated that his Honour double counted aggravating factors on sentence. No error of principle has been demonstrated in his Honour’s approach, nor has it been demonstrated that the findings of fact of the sentencing Judge were not open on the evidence.

80 I would reject the first ground of appeal.

Ground 2 - The Sentencing Judge Erred in the Manner in Which He had Regard to the Harm to Third Parties

Submissions

81 Ms Francis submitted that error was revealed in the sentencing Judge’s reference to harm to third parties on sentence (ROS8-12). Counsel noted that his Honour had made extensive reference to the contents of the victim impact statements. It was submitted that error was revealed in the statements of the sentencing Judge set out at [56]-[57], [62] above.

82 Ms Francis observed that his Honour had not referred to R v Previtera (1997) 94 A Crim R 76, nor to relevant authorities concerning victim impact statements in cases of dangerous driving causing death, including R v Berg and R v Tzanis.

83 Although acknowledging that his Honour had expressed some qualification concerning the use which could be made of this material, Ms Francis submitted that the Court, in effect, had taken into account the victim impact statements in a manner prohibited by decisions of this Court.

84 The Crown submitted that his Honour had not taken the victim impact statements into account on sentence in an impermissible way. The authorities do not preclude the general relevance of the acknowledged fact that death is attended by distress, and his Honour’s comments did no more than demonstrate that point by reference to the victim impact statements. The Crown points to statements in the remarks on sentence indicating that his Honour was conscious of the limitations to be placed on the use of victim impact material.

85 The Crown submitted that the references to the victim impact statements in the remarks on sentence were warranted by s.28 Crimes (Sentencing Procedure) Act 1999, which required acknowledgement of receipt of the statements and permitted the Court to make any comment on them that the Court considered appropriate. The fact that his Honour did not refer to any authority concerning the use of victim impact statements, the Crown submitted, was not indicative of error.

Decision

86 A sentencing Judge must approach victim impact statements (from the family of a deceased victim) within the confines laid down by R v Previtera at 84-87; R v Bollen (1998) 99 A Crim R 510 at 529-530; R v Tzanis at [15]-[18] and Whybrow v R [2008] NSWCCA 270 at [17]. The seriousness of injury to a surviving victim is relevant to the objective gravity of an offence of dangerous driving occasioning grievous bodily harm: R v Tzanis at [13].

87 The victim impact statements were received and considered for the purposes of s.28 Crimes (Sentencing Procedure) Act 1999. Section 28(3) provides that a court must receive a victim impact statement given by a family victim (of the deceased, MA and DF) and acknowledge its receipt, and may make any comment on it that the court considers appropriate.

88 The sentencing Judge set out, in some detail, the content of the victim impact statements made by the mother of MA and the mother of DF (prepared on behalf of herself and the stepfather and siblings of DF), together with a victim impact statement of the surviving victim, KL. To the extent that complaint is made, under this ground of appeal, to the fact that extensive reference was made to the victim impact statements by the sentencing Judge, I observe that there is no statutory or other restriction upon the extent to which a sentencing Judge may set out the contents of such statements. There is no requirement for victim impact statements to be referred to in some shorthand way. It is understandable, in the present case, that his Honour set out the contents in some detail, a course which was open to the Court under s.28 of the Act. The victim impact statements outlined the devastating consequences upon the families of the deceased young men and also the profound effects upon the young woman who survived the collision.

89 One of the purposes for which a court may impose a sentence on an offender is “to recognise the harm done to the victim of the crime and the community”: s.3A(g) Crimes (Sentencing Procedure) Act 1999.

90 The experienced sentencing Judge was conscious of the limitations upon the use of this evidence (see [57], [62] above). I take these statements to be references to the well-known R v Previtera principle governing the use of such material from families of deceased victims. The Applicant’s counsel in the District Court had referred to R v Previtera in the course of submissions (T6.49, 5 August 2008).

91 It has not been demonstrated that his Honour misused the victim impact material on sentence in this case. I would reject Ground 2 of appeal.

Ground 3 - The Sentencing Judge Erred in Sentencing the Applicant as Though he was Liable for the Crime of Manslaughter

Submissions

92 Ms Francis submitted that a number of findings of the sentencing Judge breached the principle in The Queen v De Simoni (1981) 147 CLR 383 at 389, in that they were consistent with conduct which would give rise to the more serious offence of manslaughter by unlawful and dangerous act involving, from the standpoint of a reasonable person, an appreciable risk of serious injury: Wilson v The Queen (1991) 174 CLR 313 at 333. The comments of the sentencing Judge relied upon in this respect are those underlined in the passages set out at [57], [58] and [63] above. Indeed, in oral submissions (T9.27, 22 June 2009), Ms Francis contended that his Honour’s comments extended to an effective finding of reckless indifference to human life, an element of murder.

93 Ms Francis relied upon R v Vukic [2003] NSWCCA 13, where Adams J acknowledged the importance of distinguishing between culpability that would found the offence of manslaughter and that of dangerous driving causing death.

94 The Applicant submitted that his Honour’s comments carry with them the irresistible conclusion that the reasonable person (and indeed, the Applicant) would, by such driving as was disclosed in this case, have appreciated, at the very least, the real risk of death.

95 It was submitted that these findings went beyond those available for the offences for which the Applicant stood to be sentenced, and infected the exercise of the sentencing discretion as demonstrated, so it was submitted, by the severity of the sentences imposed upon a juvenile offender.

96 The Crown submitted that the impugned remarks of the sentencing Judge related to an assessment of the Applicant’s moral culpability and the degree of his abandonment of responsibility.

97 In written submissions dated 26 June 2009 (furnished in accordance with the Court’s direction at the hearing), the Crown acknowledged that motor vehicle manslaughter by gross negligence is a more serious crime than one under s.52A(2), with a greater degree of negligence being required for manslaughter: R v Buttsworth (1983) 1 NSWLR 658 at 664-674. The Crown also pointed to the statutory hierarchy of offences concerning the infliction of death or serious injury by the use of a motor vehicle, which includes, in s.52AA(4), the ability for a jury to convict of an offence under s.52A on a trial for manslaughter: R v Borkowski [2009] NSWCCA 102 at [56].

98 The Crown observed, however, that the Applicant’s complaint here was made by reference to the elements of manslaughter by unlawful and dangerous act.

99 The Crown accepted that manslaughter by unlawful and dangerous act requires the commission of an act causing death that carried with it an appreciable risk of serious injury: Wilson v The Queen at 333; Carroll v The Queen (2009) 83 ALJR 579 at 583 [21]. In the present case, the sentencing Judge observed that it must have been clear to the Applicant that the course of driving was “potentially lethal” (ROS21.8).

100 The Crown referred to R v Vukic, where Adams J at [9]-[11] acknowledged that an offender could not be punished for a crime for which he had not been convicted (manslaughter), although his Honour continued in that case to describe the offender as driving “with considerable recklessness and disgraceful irresponsibility, which resulted in a fatal collision which was clearly foreseeable to any reasonable person”. I take the Crown submission by reference to R v Vukic to be that, although it is always necessary for a sentencing Judge to keep in mind the principle in The Queen v De Simoni, strong findings of fact may and ought be made if the facts of the case warrant it, as long as the sentencing Judge does not breach the relevant principle.

101 The Crown submitted that the findings and conclusions expressed by his Honour were open, and that no error had been demonstrated in that respect.

102 Even if error had been established, the Crown submitted that no lesser sentence was warranted in law: s.6(3) Criminal Appeal Act 1912.

Decision

103 Two issues arise for consideration under this ground:

(a) Is manslaughter a more serious offence than aggravated dangerous driving occasioning death for the purpose of the principle in The Queen v De Simoni ?

(b) If so, do the comments complained of in this case infringe that principle?

Does the Principle in

The Queen v De Simoni

Apply

104 In imposing sentence, a Judge is entitled to consider all the conduct of the offender, including that which would aggravate the offence, but cannot take into account circumstances of aggravation which would have warranted a conviction for a more serious offence: The Queen v De Simoni at 389.

105 The usual approach to determine whether an offence is a “more serious offence”, for the purpose of this principle, is to consider the maximum penalty for the crime: R v Hooper [2004] NSWCCA 10 at [26]. The maximum penalty for manslaughter is imprisonment for 25 years. The maximum penalty for aggravated dangerous driving occasioning death is imprisonment for 14 years.

106 The legislative history of offences now contained in s.52A Crimes Act 1900 suggests that, at the time of their enactment, offences of culpable driving were understood to be offences of lesser gravity than manslaughter by criminal negligence: Attorney General v Bindoff (1953) 53 SR(NSW) 489 at 490; R v Buttsworth at 674-683; Director of Public Prosecutions v Yeo [2008] NSWSC 953; 51 MVR 157 at 161-163 [22]-[32]. The more recent history of s.52A was considered in R v Jurisic at 225-229, including the creation in 1994 of the offences of aggravated dangerous driving causing death or grievous bodily harm, offences carrying maximum penalties of imprisonment for 14 years and 11 years respectively.

107 In R v Borkowski, Howie J (McClellan CJ at CL and Simpson J agreeing) described the hierarchy of driving offences involving death or grievous bodily harm in the following way at [55]-[56]:

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

56 As the law presently stands, there is a rational, logical and cohesive hierarchy of offences concerned with the infliction of death or serious injury by the use of a motor vehicle. The offences range from negligent driving causing grievous bodily harm (s 42(1)(b) of the Road Transport (Safety and Traffic Management) Act with a maximum penalty of 9 months imprisonment) through the driving offences in the Crimes Act to manslaughter by gross criminal negligence. All of these offences involve varying degrees of negligence, however the actual conduct may be described, ranging from a lack of care and proceeding through dangerousness to culpable negligence:

R v Buttsworth

[1983] 1 NSWLR 658. This structure is acknowledged by s 52AA(4) that provides that on a trial for an offence of manslaughter or an offence under s 53 or s 54 a jury can return a verdict of guilty of an offence under s 52A. It is also seen in s 52A(6), a provision that prevents a person being convicted of both manslaughter and an offence under s 52A arising from the same facts.”

108 As noted in R v Borkowski at [56], the location of manslaughter above a s.52A offence in the hierarchy of offences is demonstrated by s.52AA(4) concerning alternative verdicts:

“(4)

Alternative verdicts

If on the trial of a person who is indicted for murder or manslaughter or for an offence under section 53 or 54 the jury is satisfied that the person is guilty of an offence under section 52A, it may find the accused guilty of the offence under section 52A, and the accused is liable to punishment accordingly.”

109 There is a further unusual feature about the offence of manslaughter. Historically, there has been a statutory qualification concerning the penalty for manslaughter. A maximum penalty was prescribed and, until 1974, other periods of imprisonment were specified in the relevant section. Further, a proviso has existed, and continues to exist, which permits a Judge to discharge the jury (giving rise to an acquittal) if a nominal punishment was sufficient in the circumstances.

110 As enacted in the Crimes Act 1900, s.24 provided:

“24. Whosoever commits the crime of manslaughter shall be liable to penal servitude for life, or for any term not less than three years, or to imprisonment for any term not exceeding three years:

Provided that, in any case, if the Judge is of opinion that, having regard to all the circumstances, a nominal punishment would be sufficient, he may discharge the jury from giving any verdict, and such discharge shall operate as an acquittal.”

111 In an article entitled “Manslaughter by Negligent Act or Omission” (1958) 31 ALJ 630 at 636, Mr HA Snelling QC observed that the NSW legislature (in s.24) had “recognized that in some circumstances manslaughter may merit no punishment”.

112 The 1973 Report of the Criminal Law Committee on Proposed Amendments to Criminal Law and Procedure, chaired by his Honour Judge Amsberg, recommended amendment to s.24 concerning punishment for manslaughter:

“We recommend that section 24 provide simply that the punishment for manslaughter be penal servitude for life - subject, of course, to reduction under section 442. The words of section 24 recommended for omission appear to us to have no practical effect other than to confuse the reader. We suspect that they are an unintended survival from the days before section 442 was amended, in 1924, to create the same effect as the words under attack.”

113 As a result, s.24 was amended by the Crimes and Other Acts (Amendment) Act 1974 to provide as follows:

“24. Whosoever commits the crime of manslaughter shall be liable to penal servitude for life.

Provided that, in any case, if the Judge is of opinion that, having regard to all the circumstances, a nominal punishment would be sufficient, he may discharge the jury from giving any verdict, and such discharge shall operate as an acquittal.”

114 Section 24 was amended again by the Crimes (Life Sentences) Amendment Act 1989, which made a series of amendments (to ss.24, 26, 27, 28 and 29) as part of the “truth in sentencing” statutory regime, whereby a maximum penalty of life imprisonment was replaced by a maximum penalty of imprisonment for 25 years. Since 1989, s.24 has been in the following terms:

“24

Manslaughter - punishment

Whosoever commits the crime of manslaughter shall be liable to imprisonment for 25 years:

Provided that, in any case, if the Judge is of the opinion that, having regard to all the circumstances, a nominal punishment would be sufficient, the Judge may discharge the jury from giving any verdict, and such discharge shall operate as an acquittal.”

115 The Hon Mervyn Finlay QC, in his “Review of the Law of Manslaughter in New South Wales” (April 2003, paragraph 6.4, page 26), observed that the “extreme range of moral culpability for the offence of manslaughter is acknowledged by the legislature” in s.24 of the Act in its present form.

116 In R v Forbes (2005) 160 A Crim R 1, Spigelman CJ at 27 [133]-[134] observed that “manslaughter is almost unique in its protean character as an offence. … In its objective gravity it may vary, as has been pointed out, from a joke gone wrong to facts just short of murder”.

117 In cases of motor vehicle manslaughter, it has been said to be unproductive to consider, in a manslaughter case, what might have been the appropriate sentence for an offence of aggravated dangerous driving occasioning death: R v Cameron (2005) 157 A Crim R 70 at 75 [26]. Manslaughter has been described as a “markedly more serious offence” than a s.52A offence: R v Cramp (1999) 110 A Crim R 198 at 220 [108]; R v Cameron at 75-76 [28].

118 Thus, both statutory provisions and relevant authorities point to a hierarchy of offences with manslaughter located above aggravated dangerous driving causing death under s.52A. Despite the unusual features surrounding the offence of manslaughter, it should be treated as a more serious offence for the purpose of the principle in The Queen v De Simoni.

Was the Principle Breached in this Case

119 In assessing the objective seriousness of a s.52A offence, it is necessary and appropriate for a sentencing Judge to make findings with respect to the degree of abandonment of responsibility and the moral culpability of the offender.

120 Clearly, a sentencing Judge cannot approach the question of penalty upon the basis that the offender has committed the crime of manslaughter when the offender stands to be sentenced for a s.52A offence.

121 Motor vehicle manslaughter cases ordinarily involve an allegation of manslaughter by unlawful and dangerous act and/or manslaughter by criminal negligence. Counsel for the Applicant focused upon the former category. However, reference should be made as well, in this context, to criminal negligence manslaughter. These are the two categories of involuntary manslaughter at common law. Manslaughter by an unlawful and dangerous act carries with it an appreciable risk of serious injury: Wilson v The Queen at 333. Manslaughter by criminal negligence involves the commission of an act which causes death where the act of the accused was conscious and voluntary, without any intention of causing death or grievous bodily harm, but in circumstances which involved such a great falling short of the standard of care which a reasonable person would have exercised, and which involved such a high risk that death or grievous bodily harm would follow that the doing of the act merited criminal punishment: Nydam v R [1977] VR 430 at 445; The Queen v Lavender (2005) 222 CLR 67 at 75 [17], 87-88 [60], 90 [72].

122 It will be apparent that some of the concepts which may arise for consideration in a case of motor vehicle manslaughter by unlawful and dangerous act or by criminal negligence are not far removed from concepts which arise with respect to, in particular, an offence of aggravated dangerous driving causing death under s.52A(2). The guideline judgments of this Court in R v Jurisic at 231 and R v Whyte at 286 [216]-[220], identified a range of factors which bear upon the objective seriousness of a s.52A offence:

(i) extent and nature of the injuries inflicted;

(ii) number of people put at risk;

(iii) degree of speed;

(iv) degree of intoxication or of substance abuse;

(v) erratic or aggressive driving;

(vi) competitive driving or showing off;

(vii) length of the journey during which others were exposed to risk;

(viii) ignoring of warnings;

(ix) escaping police pursuit;

(x) degree of sleep deprivation;
(xi) failing to stop.

123 In R v Whyte at 287-288 [223], [228]-[231], the Chief Justice proceeded to explain the process for determining the level of “abandonment of responsibility” and the degree of “moral culpability”:

“[223] As set out above, the guideline in

R v Jurisic

was expressed in terms of an aggravating factor involving the offender's conduct being present ‘to a material degree’. The factors identified all related to the moral culpability of the offender. The reference to ‘abandonment of responsibility’ was one formulation for describing a high degree of moral culpability. The case law subsequent to

R v Jurisic

does not suggest that it has been applied as if it were a statutory test.

…

[228] In the above list of aggravating factors, items (iii)–(xi) are frequently recurring elements which directly impinge on the moral culpability of the offender at the time of the offence. Individually, but more often in some combination, they may indicate that the moral culpability is high. One way of expressing such a conclusion is to ask whether the combination of circumstances are such that it can be said that the offender has abandoned responsibility for his or her own conduct. That is not the only way of expressing such a conclusion.

[229] The guideline for offences against s 52A(1) and s 52A(3) of the Crimes Act 1900 for the typical case identified above should be:

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

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

[231] In the case of the aggravated version of each offence under s 52A of the Crimes Act 1900, an appropriate increment to reflect the higher maximum penalty, and what will generally be a higher level of moral culpability, is required. Other factors, such as the number of victims, will also require an appropriate increment.”

124 In Thompson v R [2007] NSWCCA 299, Hislop J (Hodgson JA and Latham J agreeing) observed at [15]:

“Whilst there is a real distinction between the extent of culpability reflected in the offence of manslaughter as distinct from the offence of dangerous driving causing death, in some cases the distinction may be a fine one -

R v Vukic

[2003] NSWCCA 13 at [10], the more so in respect of the aggravated forms of offence under s 52A.”

125 In R v Vukic at [10], Adams J said that the distinction between manslaughter and dangerous driving causing death may, in some cases, be a fine one. His Honour then characterised the offence in question, at [11], in the manner mentioned earlier in this judgment (at [100]).

126 The absence of a clear line of demarcation for fact finding on a s.52A offence, given the need to look at the element of risk (and awareness of risk) as part of an assessment of moral culpability, is illustrated in Gillett v R (2006) 166 A Crim R 419, where McClellan CJ at CL (Sully and Hislop JJ agreeing) said at 437-438 [47]:

“Where, as in the present case, a person takes control of a motor vehicle in circumstances where they know they represent a real risk to others and it is a risk over which they have no control, they must expect that, if the risk materialises, the penalty which will be imposed will reflect the fact that their offending had a high degree of criminality. A licence to drive a motor vehicle is a privilege which carries with it significant obligations. Those obligations require the driver to not only drive safely on the road but also to ensure that by reason of their physical health and capacity they do not endanger the lives of others. If that obligation is not met and injury or death is occasioned to others, a severe penalty will be appropriate in most cases. Every user of the road accepts a risk of injury or death. Those risks are only acceptable if other users of the road do what they can to minimise or avoid identifiable risks.”

127 In the present case, the sentencing Judge was clearly alive to the maximum penalty for the offences to which the Applicant had pleaded guilty and the distinction between those offences and offences of murder and manslaughter. Like Adams J in R v Vukic, the sentencing Judge in this case made strong findings with respect to the level of objective seriousness of the Applicant’s crimes, his level of moral culpability and the degree of abandonment of responsibility. That process involved consideration of the factors identified in R v Jurisic and R v Whyte (at [122]-[123] above). The sentencing Judge referred to these factors in the passage set out at [68] above. The most significant aspects were the Applicant’s ignoring of warnings (factor (viii) at [122]) of passengers in the vehicle to slow down, combined with grossly excessive speed (factor (iii)) and some impairment by alcohol (factor (iv)). A finding that warnings were ignored whilst driving at very high speed, as part of the assessment of moral culpability and abandonment of responsibility, involves consciousness of risk or danger which is close to, if not overlapping with, consciousness that one’s driving is “potentially lethal”.

128 There is no bright line test to be applied in a case such as this to guard against a breach of The Queen v De Simoni principle. An assessment whether a breach of The Queen v De Simoni principle has occurred ought involve consideration of the substance of what was said, in the context of the case, and not merely the form of words used. An assessment of the level of moral culpability and the degree of abandonment of responsibility may, in a particular case, involve language which is close to aspects of manslaughter.

129 None of this is to suggest that sentencing Judges may disregard The Queen v De Simoni principle when determining sentence in cases of this type. However, I am not persuaded that the sentencing Judge in this case crossed the line into findings which took into account circumstances of aggravation which would have warranted a conviction for the more serious offence of manslaughter (or murder). In my view, this is not a case where the principle in The Queen v De Simoni has been breached.

130 Even if the learned sentencing Judge did overstate the degree of wrongdoing, his overstatement was only a matter of degree and what he said does not amount to a material error: R v Peake (2002) 37 MVR 354; [2002] SASC 303 at 356 [18]-[19] (Doyle CJ, Wicks and Besanko JJ).

131 I am not persuaded that the error alleged in Ground 3 has been established.

132 Even if the Applicant had made good the third ground of appeal, the question would remain as to whether it has been demonstrated that some other sentence is warranted at law and ought to have been passed for the purpose of s.6(3) Criminal Appeal Act 1912. In the circumstances of this case (for reasons which will appear from consideration of Ground 4), I would not have been persuaded that this Court should intervene even if error had been established.

Ground 4 - The Sentence is Manifestly Excessive in the Circumstances of the Case

Submissions

133 Ms Francis referred to a summary of sentencing decisions in other cases in support of the contention that the sentences in this case were manifestly excessive. Whilst acknowledging that general deterrence had operation irrespective of the Applicant’s youth, it was submitted that its significance required some amelioration in this case. Ms Francis submitted that it remained necessary to determine the role which immaturity and inexperience played in the commission of such offences by young persons.

134 Ms Francis submitted that his Honour did not have regard to s.6 Children (Criminal Proceedings) Act 1987, and in particular s.6(b), despite the fact that the provision had mandatory application given the age of the Applicant. Ms Francis submitted that the sentences imposed were manifestly excessive and that this Court should intervene to resentence the Applicant.

135 The Crown submitted that offences in contravention of s.52A(2) frequently concern offenders who are young men of good character who are genuinely remorseful: R v Whyte. In this instance, remorse only became evident close to the date fixed for trial, and followed a period when the Applicant had said that MA had been the driver at the time of the collision.

136 Whilst a sentencing judge must take the age and character of the offender into account, the Crown submitted that these factors had limited significance in this class of offence, and ought not be given undue weight so that sentences fail to reflect the objective seriousness of the offence and the need for general deterrence. In relation to youth, the Crown submitted that the relevant principle is that, given the prevalence of this offence amongst young drivers, and the need for general deterrence, youth is to be given less weight, as a mitigating factor, than in other types of cases: R v Slattery (1996) 90 A Crim R 519 at 522-3; R v Jurisic at 228.

137 The Crown submitted that youth and good character were appropriately taken into account in this matter by the sentencing Judge. His Honour found special circumstances and imposed a total effective non-parole period that was 54% of the total term.

138 The offences were committed against different victims and, in two cases, a human life was taken. The Crown submitted that a measure of accumulation was appropriate to mark the loss of two lives: R v Whyte at 287-288 [231].

139 The Crown emphasised that the degree of speed here was very significant and the Applicant was affected by alcohol. His Honour was required to have proper regard to the matter on the Form 1.

140 The Crown acknowledged that the relevant Judicial Commission of New South Wales statistics suggested that the total effective head sentence imposed in this case was towards the top of the range. However, the Crown observed that the same comment could not be made with respect to the non-parole period. By reference to sentencing statistics for aggravated dangerous driving occasioning death offences since R v Jurisic, the Crown submitted that it could not be concluded that the sentences imposed in this case were manifestly excessive.

Decision

141 It is correct that the sentencing Judge did not refer to s.6 Children (Criminal Proceedings) 1987 in his remarks on sentence. However, a failure by a sentencing Judge to make some reference to the statement of principles in s.6 does not of itself constitute error: SS v R [2009] NSWCCA 114 at [64]. It is clear that detailed submissions were made concerning the relevance of the Applicant’s youth on sentence and his Honour adverted to a number of these submissions in the course of the remarks on sentence.

142 The relevance of the principles in s.6 to each individual case depends, to a very large extent, upon the age of the particular offender and the nature of the particular offence committed. An offender almost 18 years of age cannot expect to be treated according to law substantially differently to an offender just over 18 years of age: R v Voss [2003] NSWCCA 182 at [15].

143 It is not the youth of an offender per se that justifies the amelioration of a sentence that would otherwise be imposed in accordance with the common law principles underlying s.6. It is only where the circumstances of a particular juvenile offender, and the circumstances of a particular offence, indicate that general deterrence and retribution ought play a lesser role that the principles are given their full expression: IE v R [2008] NSWCCA 70; 183 A Crim R 150 at 155 [16].

144 At the time of sentence, s.6 Children (Criminal Proceedings) Act 1987 provided as follows:

“6

Principles relating to the exercise of criminal jurisdiction

A court, in exercising criminal jurisdiction with respect to children, shall have regard to the following principles:

(a) that children have rights and freedoms before the law equal to those enjoyed by adults and, in particular, a right to be heard, and a right to participate, in the processes that lead to decisions that affect them,

(b) that children who commit offences bear responsibility for their actions but, because of their state of dependency and immaturity, require guidance and assistance,

(c) that it is desirable, wherever possible, to allow the education or employment of a child to proceed without interruption,

(d) that it is desirable, wherever possible, to allow a child to reside in his or her own home,

(e) that the penalty imposed on a child for an offence should be no greater than that imposed on an adult who commits an offence of the same kind.”

145 On 3 November 2008, s.6 was amended to vary the opening words and to add s.6(f)-(h):

“6

Principles relating to exercise of functions under Act

A person or body that has functions under this Act is to exercise those functions having regard to the following principles:

(a) that children have rights and freedoms before the law equal to those enjoyed by adults and, in particular, a right to be heard, and a right to participate, in the processes that lead to decisions that affect them,

(b) that children who commit offences bear responsibility for their actions but, because of their state of dependency and immaturity, require guidance and assistance,

(c) that it is desirable, wherever possible, to allow the education or employment of a child to proceed without interruption,

(d) that it is desirable, wherever possible, to allow a child to reside in his or her own home,

(e) that the penalty imposed on a child for an offence should be no greater than that imposed on an adult who commits an offence of the same kind,

(f) that it is desirable that children who commit offences be assisted with their reintegration into the community so as to sustain family and community ties,

(g) that it is desirable that children who commit offences accept responsibility for their actions and, wherever possible, make reparation for their actions,

(h) that, subject to the other principles described above, consideration should be given to the effect of any crime on the victim.”

146 Counsel for the Applicant stressed s.6(b) as being of particular significance in this case, by reference to the Applicant’s “immaturity”. Ms Francis submitted that the sentencing Judge failed to take into account the Applicant’s emotional immaturity, and his driving inexperience, and that this failure served to explain the imposition of manifestly excessive sentences.

147 The Victorian Court of Appeal has recently considered the relevance of inexperience where a young driver commits an offence of dangerous driving causing death: Director of Public Prosecutions v Neethling [2009] VSCA 116; 52 MVR 422 (“Neethling”). In that case, an 18-year old driver had been licensed for 12 days only at the time of the fatal collision. The Court (Maxwell P, Vincent JA and Hargrave AJA) referred, at [27]-[32], to New South Wales decisions, including R v Jurisic and R v Whyte, concerning assessment of an offender’s degree of moral culpability, and then turned, at [40]-[44], to consider submissions with respect to the driver’s inexperience:

“[40] As to Mr Neethling’s own culpability, defence counsel on the plea emphasised his inexperience as a mitigating factor. When the judge referred to his deliberate decision to overtake, his counsel agreed that it was deliberate, but said:

Against that, licence for 12 days; clear lack of judgment by someone who is inexperienced, as distinct, for example, from someone who had been driving for a fair length of time and done something like this.

[41] In our view, Mr Neethling’s youth and inexperience cannot be said to have reduced his culpability for what occurred. He elected to drive a powerful car at high speed - well over the speed limit - when he had virtually no experience of driving unsupervised. He elected to drive at high speed in conditions which, quite obviously, made driving difficult - and dangerous. It takes little experience to know that poor visibility and wet roads significantly heighten the risk to all road users. Mr Neethling chose to speed even though he had had no experience of driving in such conditions.

[42] Worse still, Mr Neethling embarked on a very dangerous manoeuvre - overtaking at high speed in conditions of poor visibility. By his own admission, he had no idea how the car would respond in such conditions if he accelerated sharply. It was, moreover, an unlawful manoeuvre in that he crossed over double lines. The fact that he did not see the oncoming car until it was almost upon him demonstrates just how poor the visibility was. The fact that he did not see the double lines demonstrates that he simply did not take sufficient care. The photographs tendered to the court show the double lines very clearly. The headlights on Mr Neethling’s vehicle were on, so the double lines would have been clearly visible. As he would have known, having recently completed his licence test, it was his obligation not to overtake unless he had first established that the line markings on the road permitted him to do so.

[43] The newly-licensed driver well knows that he/she is on probation, on trial. Quite obviously, driving unsupervised is fundamentally different from the supervised driving which the learner driver undertakes. For the first time, the new driver must confront unexpected situations, and make quick decisions without assistance. That is an adult responsibility, and it must be discharged accordingly. The new driver must realise that his/her inexperience creates risks for himself/herself, for passengers, and for other road users.

[44] These are all self-evident propositions. We have little doubt that they represents the universal view within our community. And they illustrate, without further explanation, why Mr Neethling’s culpability must be viewed as high. He took a completely unnecessary risk, and in so doing put others unnecessarily at risk. In the language of Spigelman CJ, he ‘abandoned his responsibility’ - to his passengers and to other road users - with catastrophic results.”

148 Adapting what Doyle CJ said in R v Peake at 356 [16] (see [130] above), the Court said (at [49]) that, in attempting to overtake when he did, Mr Neethling created “a significant risk of a serious accident”.

149 With respect to Mr Neethling’s youth, the Court said at [53]-[55]:

“[53] It has long been accepted that, as a general rule, rehabilitation should be a primary - if not the principal - concern in sentencing a young offender. It is equally well-established, however, that this principle has sometimes to give way to other sentencing considerations. It was submitted for the Director that the present was such a case. We respectfully agree.

[54] It was contended for the Director that, in cases such as this, general deterrence was of primary importance:

[T]here is widespread community alarm at very serious motor vehicle accidents involving young drivers. It is appropriate that deterrence be used to encourage young drivers not to drive dangerously.

We accept this submission, which accords with the authorities referred to earlier. As Spigelman CJ said in

Whyte

, the ‘frequently recurring case’ of dangerous driving causing death is one involving a young offender, of good character and with no or limited prior convictions, and showing genuine remorse. That description fits Mr Neethling perfectly.

[55] Unsurprisingly, experience in Victoria mirrors that in New South Wales. It is precisely because of the tendency of young drivers to drive dangerously that general deterrence must be regarded as of great importance, and youth must be given relatively less weight. In the present case, the victims were themselves young people. The importance of general deterrence is to try and prevent the very kind of damage which occurred here.”

150 These observations of the Victorian Court of Appeal apply to the present Applicant. His inexperience does not assist him. He had held a learner’s permit for 11 months (and was soon to be tested for a provisional licence). He chose to set out on a journey with three young passengers, and to drive in the manner which he did, after consuming alcohol which impaired his driving to some extent. He elected to drive at very high speed, despite his inexperience. He did not reduce speed in the face of warnings given to him by one or more of his passengers. He took on an adult responsibility and must realise that his inexperience created risks for others and himself. As the Victorian Court of Appeal observed in Neethling at [44], these were “self-evident propositions” which represent the “universal view within our community”. The “tendency of young drivers to drive dangerously” explains why general deterrence is of great importance. Young persons were killed or seriously injured by the Applicant’s driving and “the importance of general deterrence is to try and prevent the very kind of damage that occurred here”.

151 Ms Francis referred in submissions to the Applicant “having little appreciation of his own mortality” (T5.35, 22 June 2009). The Applicant’s counsel in the District Court had submitted that “it is also a fact of life that people at this tender age tend to - their brains tend to not allow them to deal with the responsibility that they sometimes demand so vocally” (T6.10, 5 August 2008). In a similar vein, the sentencing Judge in the Victorian County Court in Neethling at [51] had observed that the offender “like many young men … saw [himself] as ‘bullet proof’.” The fact that young men (in particular) may have such perceptions is a significant reason for general deterrence to be a prominent factor in cases such as these. Inexperience and immaturity, in persons aged 17 years and over, cannot operate as mitigating factors where the offender commits grave driving offences, with fatal consequences, as exemplified by Neethling and this case.

152 The provisions of s.6 Children (Criminal Proceedings) Act 1987 had application to the Applicant. However, he was over 17 years old and his proximity to 18 years was pertinent: R v Voss (at [142] above). The nature of the Applicant’s offences were such that general deterrence was a dominant factor on sentence: IE v R (at [143] above).

153 The question is whether the approach of the sentencing Judge revealed error in the way in which his Honour approached the Applicant’s youth, inexperience and relative immaturity. I am not persuaded that error has been demonstrated on the part of the sentencing Judge in this respect.

154 In my view, general deterrence was a very significant factor on sentence in this case. His Honour was conscious of the fact that offences of this type are frequently committed by young persons. It remained, of course, necessary to have proper regard to the role of general deterrence as part of the sentencing mix, together with the objective features of the offences and the subjective features of the Applicant in determining an appropriate sentence.

155 These were very serious examples of this class of offence. The Applicant drove the vehicle, with three passengers aboard, on a residential street at a grossly excessive speed whilst affected to some extent by alcohol. The Applicant’s moral culpability was substantial, as was his degree of abandonment of responsibility as the driver of the vehicle.

156 It was open to the sentencing Judge to find that warnings were given by one or more of the passengers to the Applicant to slow down. He did not do so. He lost control of the vehicle whilst it was travelling at such a very high speed that it left the road and collided with a power pole, severing the vehicle. One passenger died instantly and another died days later in hospital. A third passenger was injured and disabled in profound ways which will affect her for the rest of her life.

157 Although the Applicant was not to be punished for his denial that he drove the vehicle and his late admission of guilt, these factors serve to distinguish his case from the typical case where there is remorse and an early plea of guilty.

158 The Form 1 offence was a most serious one involving grave and long-lasting injuries and disabilities to KL. It was necessary, as the sentencing Judge recognised, for his Honour to increase penalty on the first count to reflect this additional criminality: Attorney General’s Application under s.37 of the Crimes (Sentencing Procedure) Act 1999 (No. 1 of 2002) (2002) 56 NSWLR 146 at 159 [42]-[43].

159 I have considered the Applicant’s submissions made by reference to sentencing statistics and other sentencing decisions. They demonstrate that the total aggregate term imposed upon the Applicant was substantial, although the total effective non-parole period was less so. Caution must be exercised in the use of statistical material: R v Bloomfield (1998) 44 NSWLR 734 at 739. Further, the Applicant was sentenced for two most serious offences with a third serious offence being taken into account on sentence. The Applicant’s late pleas of guilty and late remorse are other factors differentiating this case from typical cases.

160 This case is a stark example of the immense tragedy which can befall young persons and their families when responsibility is abandoned, in circumstances of high moral culpability, by a young person behind the steering wheel of a motor vehicle. A court is presented with the challenging task of passing sentence. The guideposts to the appropriate sentence point in different directions, reflecting the tension between relevant sentencing principles: Veen v The Queen (No. 2) [1987-1988] 164 CLR 465 at 476. However, the objective seriousness of these offences, and the need for general deterrence, are dominant considerations and remain so even where the offender is young and inexperienced.

161 The sentences must be seen to have a reasonable proportionality to the objective circumstances of the crimes, and persuasive subjective circumstances must not lead to inadequate weight being given to the objective circumstances: R v Musumeci (NSWCCA, 30 October 1997, BC9705741, page 5): R v Jurisic at 228; Neethling at 434 [58]. Given that the Applicant was to be sentenced for two offences, the totality principle also had application: R v MMK (2006) 164 A Crim R 481 at 486 [11]-[13].

162 I accept that the sentences imposed upon the Applicant are substantial. However, I am not persuaded that the sentences are manifestly excessive in the required sense, that is, that they are unreasonable or plainly unjust: Markarian v The Queen (2005) 228 CLR 357 at 370-371 [25].

Orders

163 I propose the following orders:

(a) extend time for the Applicant to seek leave to appeal against sentences imposed at the Newcastle District Court on 22 August 2008;

(b) grant leave to appeal with respect to sentence;

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Citations

SBF v R [2009] NSWCCA 231

Most Recent Citation

Charnock v Tasmania Police [2013] TASSC 64

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R v Tabbah; R v Tiriaki (No 6) [2014] NSWSC 1764

Cases Cited

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Statutory Material Cited

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R v De Simoni [1981] HCA 31

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Cited Sections

CITATION:	SBF v R [2009] NSWCCA 231
HEARING DATE(S):	22 June 2009
JUDGMENT DATE:	10 September 2009
JUDGMENT OF:	Spigelman CJ at 1; McClellan CJatCL at 2; Johnson J at 7
DECISION:	1. Time extended for the Applicant to seek leave to appeal against sentences imposed at the Newcastle District Court on 22 August 2008. 2. Leave granted to appeal with respect to sentence. 3. Appeal against sentence dismissed.
CATCHWORDS:	CRIMINAL LAW - sentence - aggravated dangerous driving causing death (two counts) - Form 1 offence of aggravated dangerous driving causing grievous bodily harm - 17-year old driver on learner’s permit - grossly excessive speed in residential area - some impairment by alcohol - collision with power pole - 16 and 17-year old passengers killed - 17-year old passenger seriously injured - late pleas of guilty - offender denies being driver until shortly before trial date - sentences of imprisonment imposed - whether error in assessment of aggravating features of offences - whether error in use of victim impact statements of families of deceased victims - whether breach of De Simoni principle in findings of fact - claim that findings amounted to findings of manslaughter - whether sentences manifestly excessive - relevance of offender’s youth, inexperience and immaturity - importance of general deterrence - no error established - sentences not manifestly excessive
LEGISLATION CITED:	Crimes Act 1900 Children (Criminal Proceedings) Act 1987 Crimes (Sentencing Procedure) Act 1999 Criminal Appeal Act 1912 Crimes and Other Acts (Amendment) Act 1974 Crimes (Life Sentences) Amendment Act 1989
CATEGORY:	Principal judgment
CASES CITED:	The Queen v De Simoni (1981) 147 CLR 383 Clarke v R [2009] NSWCCA 49 R v Jurisic [1998] 45 NSWLR 209 R v Whyte (2002) 55 NSWLR 252 R v Berg [2004] NSWCCA 300 R v Tzanis [2005] NSWCCA 274 House v The King (1936) 55 CLR 499 R v Merritt (2004) 59 NSWLR 557 R v Takai (2004) 149 A Crim R 593 R v Previtera (1997) 94 A Crim R 76 R v Bollen (1998) 99 A Crim R 510 Whybrow v R [2008] NSWCCA 270 Wilson v The Queen (1991) 174 CLR 313 R v Vukic [2003] NSWCCA 13 R v Buttsworth (1983) 1 NSWLR 658 R v Borkowski [2009] NSWCCA 102 Carroll v The Queen (2009) 83 ALJR 579 R v Hooper [2004] NSWCCA 10 Attorney General v Bindoff (1953) 53 SR(NSW) 489 Director of Public Prosecutions v Yeo [2008] NSWSC 953; 51 MVR 157 R v Forbes (2005) 160 A Crim R 1 R v Cameron (2005) 157 A Crim R 70 R v Cramp (1999) 110 A Crim R 198 Nydam v R [1977] VR 430 The Queen v Lavender (2005) 222 CLR 67 Thompson v R [2007] NSWCCA 299 Gillett v R (2006) 166 A Crim R 419 R v Peake (2002) 37 MVR 354; [2002] SASC 303 R v Slattery (1996) 90 A Crim R 519 SS v R [2009] NSWCCA 114 R v Voss [2003] NSWCCA 182 IE v R [2008] NSWCCA 70; 183 A Crim R 150 Director of Public Prosecutions v Neethling [2009] VSCA 116; 52 MVR 422 R v Bloomfield (1998) 44 NSWLR 734 Veen v The Queen (No. 2) [1987-1988] 164 CLR 465 R v Musumeci (NSWCCA, 30 October 1997, BC9705741) R v MMK (2006) 164 A Crim R 481 Markarian v The Queen (2005) 228 CLR 357 Attorney General’s Application under s.37 of the Crimes (Sentencing Procedure) Act 1999 (No. 1 of 2002) (2002) 56 NSWLR 146
PARTIES:	SBF (Applicant) Regina (Respondent)
FILE NUMBER(S):	CCA 2007/9536
COUNSEL:	Ms A Francis (Applicant) Mr L Babb SC; Ms M Rabsch (Respondent)
SOLICITORS:	Legal Aid NSW (Applicant) Solicitor for Public Prosecutions (Respondent)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	07/31/0344
LOWER COURT JUDICIAL OFFICER:	Coolahan DCJ
LOWER COURT DATE OF DECISION:	22 August 2008