Smith v The Queen

[2020] NSWCCA 181

Court of Criminal Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Smith v R [2020] NSWCCA 181

Hearing dates:

7 May 2020

Date of orders:

3 August 2020

Decision date:

03 August 2020

Before:

Simpson AJA at [1];
Rothman J at [86];
Bellew J at [87].

Decision:

1. Leave to appeal against sentence is granted;

2. The appeal is allowed and the sentence imposed in the District Court is quashed;

3. In lieu thereof the applicant is sentenced to a non-parole period of imprisonment for 5 years, commencing on 13 June 2019 and expiring on 12 June 2024, with a balance of term of 2 years and 6 months which will expire on 12 December 2026.

Catchwords:

CRIME — appeals — appeal against sentence — manifest excess – manslaughter arising out of the manner in which motor vehicle was driven – applicant heavily intoxicated – comparable decisions of the New South Wales Court of Criminal Appeal used to demonstrate that the starting point, and, therefore, the sentence imposed, were so far out of line with the established pattern of sentencing as to be demonstrably manifestly excessive – after factoring in a 25% discount for plea of guilty, the starting point of 12 years was manifestly excessive

CRIME — appeals — appeal against sentence — failure to take into account a relevant consideration – Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 571 – whether the sentencing judge failed to make an assessment of the applicant’s moral culpability in the light of the evidence of her background – where applicant has a strong subjective case but the objective seriousness of the manslaughter offence was extreme

Legislation Cited:

Crimes (Appeal and Review) Act 2009 (NSW), s 68A

Crimes (Sentencing Procedure) Act 1999 (NSW) s 44(2)

Crimes Act 1900 (NSW) ss 18(1), 24, 52A

Criminal Procedure Act 1986 (NSW), s 166

Drug (Misuse and Trafficking) Act 1985 (NSW), ss 10(1), 21

Road Transport Act 2013 (NSW), ss 110(5)(a), 111(1)(a)

Cases Cited:

Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 571

Dang v R [2014] NSWCCA 47

Day v R [2014] NSWCCA 333; (2014) 69 MVR 103

Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54

Director of Public Prosecutions(Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194

Duncan v R [2012] NSWCCA 78

Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45

House v The King (1936) 55 CLR 499; [1936] HCA 40

Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37

Lawler v R [2007] NSWCCA 85; (2007) 169 A Crim R 415

Pham v R [2014] NSWCCA 115

R v Cameron [2005] NSWCCA 359; (2005) 157 A Crim R 70

R v Cramp [1999] NSWCCA 324; (1999) 110 A Crim R 198

R v Gordon (No 8) [2017] NSWSC 574

R vThomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309

R v Whyte (2002) 55 NSWLR 252; [2002] NSWCCA 343

Woodbridge v R [2010] NSWCCA 185; (2010) 208 A Crim R 503

Category:

Principal judgment

Parties:

Carly Renee Smith (Applicant)
The Crown (Respondent)

Representation:

Counsel:
R Khalilizadeh (Applicant)
Dr D Kell SC/E Jones (Respondent)

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

File Number(s):

2018/61055

 Decision under appeal 

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

13 June 2019

Before:

Robison DCJ

File Number(s):

2018/61055

HEADNOTE

[This headnote is not to be read as part of the judgment]

The applicant entered a plea of guilty to an indictment that charged her with the manslaughter of Ms Stephen-Nelson on 30 January 2018. She was committed to the District Court at Port Macquarie for sentence for that offence, and three “related offices”. These were offences of possession of a prohibited drug (cannabis), driving a motor vehicle while there was present in the applicant’s blood a prescribed illicit substance (delta-9-tetrahydrocannabinol), and driving while there was present in her blood the high range prescribed concentration of alcohol. The applicant admitted her guilt of each of the related offences which were all committed on the same day, 30 January 2018. She was sentenced to imprisonment for 9 years with a non-parole period of 6 years and 3 months.

The relevant facts were put before the sentence judge in an agreed statement. The death of Ms Stephen-Nelson was caused when the motor vehicle she was driving east on Old Bar Road, Old Bar (east of Taree) was struck by a motor vehicle then being driven by the applicant in the opposite direction. The applicant was heavily intoxicated. At the time of the collision, the applicant had a blood alcohol concentration of not less than 0.243 gms per 100 milliletres of blood, and not more than .296 gms, with the most likely concentration being 0.261.

There was evidence of the manner of the applicant’s driving in the period prior to the collision which one observer described as “the worst driving [she had] ever seen in all of [her] life”:

• at about 7.15pm when already intoxicated, the applicant drove some kilometres from her home to a supermarket;

• when leaving the supermarket car park the applicant drove into a pole and a hedge, reversed, and drove again into the hedge and then drove off, her tyres “squealing”;

• as she drove down the ramp of the car park the applicant encountered an acquaintance in another car who told her that she should not be driving and twice offered to drive her home;

• the applicant declined the offers and accelerated over a speed hump which scraped the undercarriage of her car;

• a small boy, 10 or 11 years of age, who was crossing the road while pushing his bicycle was pulled to safety by a nearby adult pedestrian; the applicant’s car passed within one to one and a half metres from the back wheel of the bicycle; and

• the applicant’s car travelled off the right side of the road and fishtailed, striking a speed sign, snapping a steel post near its base at a 90 degree angle, the impact of which tore the door panel of the car from the door frame and the side skirt from the door sill. The car was off the road for a distance of 90 metres.

Notwithstanding these events, after the collision with the speed sign, the applicant continued to drive at a high speed for about 700 metres, at which point the vehicle again left and then returned to the road, narrowly missing a car travelling in the opposite direction, and then colliding with Ms Stephen-Nelson’s vehicle. Ms Stephen-Nelson was transported by helicopter, conscious and in severe pain, to a hospital in Newcastle. She died at 10.41pm.

The applicant had previous convictions for driving whilst there was present in her blood the high range concentration of alcohol, and the “special concentration” of alcohol, in 1998 and 2016 respectively.

The applicant’s early family life was dysfunctional; she suffered bullying from other children at primary and secondary schools; in adulthood she entered into a series of abusive relationships. A psychologist found that the applicant had elevated scores on the Depression and Dependent scales, and identified anxiety, dysthymia (persistent depressive disorder) alcohol dependence and post-traumatic stress disorder.

On 13 June 2019 the applicant was sentenced, on the count of manslaughter, to imprisonment for 9 years with a non-parole period of 6 years and 3 months with a reduction of 25% for the applicant’s guilty plea. In so sentencing, the judge allowed a small variation in the proportions between the head sentence and the non-parole period. The applicant’s custodial sentences on the other counts were specified to commence on the date they were imposed (13 June 2019) and to be served concurrently.

The sentencing judge found that “there was an absolute abandonment of responsibility” by the applicant but recognised the applicability of the principles of Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37. The sentencing judge stated that the applicant’s circumstances are matters which can inform her moral culpability and “may properly be taken into account when assessing objective seriousness”, but that “when it comes to the Bugmy principles however, they come back to the subjective circumstances”.

The applicant sought leave to appeal against the sentence imposed in respect of the manslaughter conviction, relying on two grounds of appeal: first, the sentencing judge failed to assess whether the applicant’s moral culpability was reduced by virtue of her background; and secondly, the sentence imposed was manifestly excessive.

Held, granting leave to appeal and allowing the appeal (per Simpson AJA; Rothman and Bellew JJ agreeing):

1. The sentencing judge was fully aware of the need to balance moral culpability, especially where diminished by reason of childhood deprivation, with the objective seriousness of the offence for which sentence is to be imposed. Important as the assessment of moral culpability is, it does not swamp the objective gravity of an offence. Even taking into account her deprived background, the applicant’s moral culpability was high: at [41]-[43].

2. The sentence imposed on the applicant was, having regard to prevailing sentencing practice, manifestly excessive and should be set aside. The appropriate starting point (prior to the application of the 25% discount for the guilty plea) for the offence was imprisonment for 10 years, after reduction in recognition of the prompt plea of guilty and adjustment of the statutory proportions between the head sentence and the non-parole period the applicant should be resentenced to imprisonment for 7 years and 6 months with a non-parole period of 5 years: at [79], [84].

Woodbridge v R [2010] NSWCCA 185; (2010) 208 A Crim R 503; R v Cameron [2005] NSWCCA 359; (2005) 157 A Crim R 70; R v Cramp [1999] NSWCCA 324; 110 (1999) A Crim R 198; R v Gordon (No 8) [2017] NSWSC 574 considered.

Judgment

1. SIMPSON AJA: On 4 December 2018 in the Local Court at Forster the applicant entered a plea of guilty to an indictment that charged her with the manslaughter, on 30 January 2018, of Ms Abbey Stephen-Nelson. Pursuant to s 24 of the Crimes Act 1900 (NSW), the maximum penalty applicable to that offence is imprisonment for 25 years.

2. The applicant was committed to the District Court at Port Macquarie for sentence. Also referred to the District Court (pursuant to s 166 of the Criminal Procedure Act 1986 (NSW)) were three “related offences” identified on a certificate pursuant to that section. These were offences of:

• possession of a prohibited drug (cannabis), contrary to s 10(1) of the Drug (Misuse and Trafficking) Act 1985 (NSW), for which a maximum penalty of imprisonment for 2 years is prescribed (s 21);

• driving a motor vehicle while there was present in the applicant’s blood a prescribed illicit substance (delta-9-tetrahydrocannabinol), contrary to the Road Transport Act 2013 (NSW), s 111(1)(a), for which the maximum penalty is a fine of 10 penalty units and automatic licence disqualification for 6 months;

• driving while there was present in the applicant’s blood the high range prescribed concentration of alcohol (“PCA”), for which s 110(5)(a) of the Road Transport Act prescribes a maximum penalty (because the offence was a second offence) of imprisonment for 2 years and/or a fine of 50 penalty units.

The applicant admitted her guilt of each of the related offences.

3. All offences were committed on the same day, 30 January 2018. On 13 June 2019 the applicant was sentenced, on the count of manslaughter, to imprisonment for 9 years with a non-parole period of 6 years and 3 months. In so sentencing, the judge allowed a small variation in the proportions between the head sentence and the non-parole period stated in s 44(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“the Sentencing Procedure Act”). On the count of drug possession the applicant was sentenced to imprisonment for 2 months; on the count of driving while there was present in her blood an illicit drug, a fine of $300 was imposed together with a licence disqualification of 6 months; for the high range PCA offence the applicant was sentenced to imprisonment for 4 months with a licence disqualification of 5 years. All custodial sentences were specified to commence on the date they were imposed (13 June 2019) and to be served concurrently. The applicant will be eligible for release on parole on 12 September 2025.

4. The applicant now seeks leave to appeal against the sentence imposed in respect of the manslaughter conviction. She does not challenge the other sentences. She has identified two proposed grounds of appeal, as follows:

“1.   The sentencing judge failed to assess whether the applicant’s moral culpability was reduced by virtue of her background.

2.   The sentence imposed was manifestly excessive.”

The facts of the offences

5. The relevant facts were agreed, and put before the sentencing judge in a statement signed by the applicant and on behalf of the Crown.

6. The death of Ms Stephen-Nelson was caused when the motor vehicle she was driving east on Old Bar Road, Old Bar (east of Taree) was struck by a motor vehicle then being driven by the applicant in the opposite direction. The collision occurred at about 7.20 pm. The applicant was heavily intoxicated. A blood sample taken on the night of 30 January showed that, at the time of the collision, her blood alcohol concentration was not less than 0.243 gms per 100 millilitres of blood, and not more than .296 gms, with the most likely concentration being 0.261. The collision with Ms Stephen-Nelson’s car was the culmination of an episode of driving that was described in detail in the agreed statement of facts by reference to the observations of a number of individuals who had witnessed the driving at different points. To facilitate an understanding of the conduct of the applicant, and the basis on which she was sentenced, it is necessary to set out something of the events that preceded the collision.

7. During the day the applicant, who was then 40 years of age, became heavily intoxicated. At about 7.15 pm, for reasons she could not explain, the applicant attended the Old Bar supermarket (some kilometres from her home) where she purchased tobacco. She was then showing signs of intoxication. She collected her car from the supermarket car park. When she started the car she drove into a pole and a hedge, reversed, and drove again into the hedge. She nevertheless drove off, her tyres “squealing”. As she drove down the ramp of the car park she encountered an acquaintance in another car. The acquaintance told her that she should not be driving and twice offered to drive her home. The applicant accelerated and drove off, in a westerly direction, towards her home. She continued to accelerate, including over a speed hump on which the undercarriage of her car was scraped. She continued, for some distance, towards her home. The manner of driving was consistently described by those who witnessed it as dangerous.

8. A small boy, 10 or 11 years of age, who was crossing the road while pushing his bicycle and accompanied by his dog, was pulled to safety by an adult pedestrian who was nearby. The applicant’s car passed within one to one and a half metres from the back wheel of the bicycle. The applicant’s vehicle sped off and continued towards her home. One observer described what she saw as:

“… the worst driving I have ever seen in all of my life.”

9. The applicant’s car travelled off the right side of the road and fishtailed. The right wheels left the road and the car slid sideways to the left. It struck a speed sign, snapping a steel post near its base at a 90 degree angle. The impact tore the door panel of the car from the door frame and the side skirt from the door sill. The car was off the road for a distance of 90 metres. Notwithstanding these events, after the collision with the speed sign, the vehicle continued to travel west at high speed for about 600 metres, at which point it again left and then returned to the road, narrowly missing a car travelling in the opposite direction (east) but then colliding with Ms Stephen-Nelson’s vehicle, which was also travelling east. The impact was of such force that the engine was ripped from Ms Stephen-Nelson’s car and landed on the road. Ms Stephen-Nelson’s car was propelled from the road and came to rest on its roof in a paddock. At that time Ms Stephen-Nelson was alive, conscious, and trapped upside down in her car.

10. The front wheel on the driver’s side of the applicant’s vehicle was torn from it; the vehicle continued to travel on three wheels for a further 50 metres, sliding and spinning to the right side of the road; it travelled through a fence and struck two trees, and then a third, on the passenger side before coming to a rest. The applicant was ejected from the car.

11. Ms Stephen-Nelson was transported by helicopter, conscious and in severe pain, to a hospital in Newcastle. She died at 10.41 pm.

12. The applicant was also transported by helicopter to the hospital. When she was examined she was found to be in possession of a small quantity of cannabis. Initially, she denied that it was hers. Her blood alcohol level, as mentioned above, was found to be most likely 0.261. Also present in her blood stream was an illicit drug, identified as “THC” – the concentration of which was conservatively estimated to be 0.029 mg per litre of blood. These circumstances gave rise to the charges on the s 166 certificate.

13. The applicant suffered spinal and hip fractures as well as fractures to the leg and foot bones. She was discharged from hospital on 23 February 2018. She was interviewed by police and confirmed that she was the driver of the vehicle, but said that she had no recollection of the collision or the events that preceded it.

The applicant’s personal circumstances

14. Evidence of the applicant’s personal circumstances was put before the court by way of a report by a psychologist, Ms Diana Grujoska. The applicant and her father both gave oral evidence. That evidence discloses the following. The applicant was born in May 1977. She was 40 years of age at the date of the offences. She had a previous history of a conviction for driving a car whilst there was present in her blood the high range concentration of alcohol; that offence was committed in January 1998. A fine was imposed. In 2016 she was convicted of driving whilst there was present in her blood the “special concentration” of alcohol. The “special concentration” applies, inter alia, to holders of provisional licences. No more is disclosed about these offences in the material before this Court.

15. As recorded by Ms Grujoska, the applicant’s early family life was dysfunctional. Her parents had separated when she was 3 years of age and her mother remarried. Her stepfather was physically and mentally abusive, both to the applicant and to her mother.

16. Initially, after the separation of her parents, the applicant spent some time with her father with whom she appears to have had a good relationship. That contact diminished when he moved to Queensland, apparently not very long after the separation.

17. The applicant suffered bullying from other children at primary and secondary schools.

18. As is so often the pattern, in adulthood the applicant entered into more abusive relationships. The first commenced when she was 16 and continued until she terminated it (with help from her father and police) at the age of 18. A second abusive relationship commenced almost immediately after, and lasted 5 years and ended as a result of her partner’s infidelity, and on his incarceration for drug offences.

19. At the age of 24 the applicant began a relationship with a man who was not then abusive and with whom she had 3 children (born in, approximately, 2006, 2009 and 2015). That man subsequently became addicted to methylamphetamine and also became violent. Thereafter the applicant moved to the Taree district, where she was living at the time of the present offences.

20. Subsequently, her partner also moved to Taree and the relationship resumed but continued to be marked by drug use and violence. In about 2016 the applicant’s father also moved to Taree and lived with the family. Notwithstanding his presence the applicant’s partner’s violence continued.

14. Eventually, the applicant’s father purchased a property in Taree on which were two dwellings. The applicant and her family (her partner and 3 children) lived in one, her father in the other.

15. The relationship with the applicant’s partner came to an end when she discovered that he was attempting to seduce her friend by supplying drugs. Her father required him to leave the property. The applicant told Ms Grujoska that at this point she began to drink excessively (in fact, she had been drinking excessively in the past). She sought some help from a general practitioner and a hypnotherapist, but, apparently, with limited profit.

16. Besides using alcohol, the applicant also consumed marijuana.

17. Ms Grujoska made a number of assessments of the applicant. She found elevated scores on the Depression and Dependent scales, and identified anxiety, dysthymia (persistent depressive disorder), alcohol dependence and post-traumatic stress disorder.

18. Ms Grujoska concluded:

“Ms Smith appears to have challenges regulating her emotions, leading to strong instability and changes in mood. She likely has recurring thoughts of self-harm and/or suicide, which are heightened during conflicting feelings of rage, love, and guilt towards others.”

She recommended specific forms of treatment.

26. The applicant gave evidence in the sentencing proceedings. She began by accepting full responsibility for what had happened and offered an apology to Ms Stephen-Nelson’s family. She said that she had at times sought assistance from a psychologist, whom she had arranged to see a few days before the day of the offence, but had no money and felt unable to ask her father for assistance. She said that she had not used alcohol or drugs since the date of the collision. She intends to seek access to rehabilitation courses when in custody.

27. At sentencing the applicant had been on bail, living in the Taree property with her father and 3 children who were then aged 13, 10 and 4. It was proposed that her former partner, the father of the children, would also live at the premises and care for the children.

Victim Impact Statements

28. Also before the court were Victim Impact Statements made by Ms Stephen-Nelson’s mother, father, two sisters and grandmother, each of which was read to the court. Unsurprisingly, they painted a vivid picture of the family devastation that results from the tragic loss of a valued family member.

The remarks on sentence

29. The sentencing judge began by recording the offences for which the applicant stood to be sentenced and the maximum penalties applicable. He noted that the applicant had entered a plea of guilty to the manslaughter charge at the earliest opportunity and allowed a reduction of 25% in the sentence that he otherwise would have imposed: R vThomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309.

30. His Honour noted the Victim Impact Statements and observed that members of Ms Stephen-Nelson’s family were and remain “profoundly affected” by her death. He recorded in some detail the circumstances of the applicant’s driving that led to and caused Ms Stephen-Nelson’s death. He noted the content of Ms Grujoska’s report and commented:

“So life certainly has not been easy for the offender. I hasten to add at the outset that none of this excuses what she did at the time – none. However, it does assist the Court in determining certain subjective matters that the Court must take into account when sentencing an offender such as this lady. The law requires the Court to take into account things such as how serious the offence was, the circumstances that led up to the commission of the offence and the circumstances of the offender. …

There has been clearly a long history of drug and alcohol abuse and certainly that needs to be addressed sooner rather than later and to the offender’s credit she did take some steps to address those problems before these tragic events occurred.”

31. He stated that he had taken into account what Ms Grujoska had recorded as “the attitude displayed by the offender”.

32. As to the objective circumstances of the manslaughter offence, his Honour said:

“When it comes to the objective seriousness of the offence I am mindful of the submissions made by the Crown and [counsel for the applicant]. In my view when one looks at the overall criminality of the specific offence of manslaughter and there can be so many factors which may arise in such a matter, it is clear from the manner of driving and what she did prior to that and when one puts all of that together, I come to the conclusion that there was an absolute abandonment of responsibility at the time.”

33. He went onto say:

“When it comes to the moral culpability and I note the submissions about that. In particular in the context of the Bugmy principles and there is a number of those principles which I consider are applicable here when it comes to the background of the offender. It has been submitted and I would agree with this, that moral culpability can be informed by the circumstances of the offender and while these circumstances are personal to the offender or subjective to the extent that they are relevant to the moral culpability of the offender, they are matters which may properly be taken into account when assessing objective seriousness. But when it comes to the Bugmy principles however, they come back to the subjective circumstances in my mind as to her upbringing and her disposition generally prior to the commission of these offences. Her driving ability was clearly substantially impaired at the time.”

The reference to “The Bugmy principles” was a reference to the decision of the High Court in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37, explained below.

34. As to the applicant’s prospects of rehabilitation his Honour said:

“When it comes to the likelihood or otherwise of re-offending and the prospects of rehabilitation, I have come to the view that provided she rises to the challenge of rehabilitation and I think she will, the likelihood of re-offending to the extent that she has offended in this case would be extremely unlikely but much depends on her commitment towards rehabilitation. She certainly has drug and alcohol issues which need to be addressed and to some extent she has already embarked on a process of self-rehabilitation given her abstinence from those mind altering substances since the appalling events last year occurred.”

35. He found, indisputably correctly, that general deterrence was an important sentencing factor but doubted that the same applied to specific deterrence. He again stated that he was:

“… mindful of the personal background circumstances of the offender and her moral culpability in the commission of these offences.”

36. Pursuant to s 44(2) of the Sentencing Procedure Act, he found special circumstances that justified departure from the statutory ratio between the non-parole period and the head sentence.

37. He then proceeded to impose the sentences mentioned above.

The proposed grounds of appeal

(i)    Ground one: personal circumstances

38. In her written submissions counsel for the applicant gave due recognition to the seriousness of the principal offence and the need for sentencing to recognise that circumstance. She relied, however, on a passage from the judgment of Spigelman CJ in R v Whyte (2002) 55 NSWLR 252; [2002] NSWCCA 343 (a case in which a five judge bench promulgated a guideline for sentencing in respect of offences of dangerous driving causing death or bodily harm, contrary to s 52A of the Crimes Act). At [205] the Chief Justice said:

“As the Parliament have made clear, in the maximum penalties for the offence, conduct which causes death or grievous bodily harm, even in the absence of any intention to cause such injury, is to be regarded as a serious crime. However, in determining the appropriateness of full time custody and the length thereof, the sentencing judge must give close attention to the degree of moral culpability involved. This is a critical component of the objective circumstances of the offence.”

39. The guideline promulgated was stated in the following terms:

“229   …

‘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.’”

40. With respect to the assessment of moral culpability, counsel cited the decision of the High Court in Bugmy. In Bugmy the High Court held that, where the evidence in a sentencing proceeding establishes “profound childhood deprivation”, that circumstance is to be given “full weight” in the sentence decision. That circumstance may be relevant in the proper assessment of the offender’s moral culpability.

41. Counsel submitted that the sentencing judge had failed to make an assessment of the applicant’s moral culpability in the light of the evidence of her background. I am unable to accept that proposition. The extracts from the remarks on sentence quoted above make clear that his Honour was fully aware of the need to balance moral culpability, especially where diminished by reason of childhood deprivation, with the objective seriousness of the offence for which sentence is to be imposed. His Honour paid due attention to the applicant’s disturbed and dysfunctional background and the effect on her of a lifetime of domestic violence, both at parental (stepfather) and partner levels.

42. Important as the assessment of moral culpability is, it does not swamp the objective gravity of an offence. It may be accepted that the applicant made a strong subjective case. But the objective gravity of the manslaughter offence was extreme. The precise period of time over which she drove her car consistently at a dangerous speed and in a dangerous manner is not known, but it was far from momentary. She had several warnings; she twice drove her car into a bush at the supermarket; she ignored the offer, made twice, of an acquaintance to drive her home; she scraped the undercarriage of her car on a speed hump; she narrowly missed hitting a small boy and his dog; her vehicle left the road on more than one occasion and at one point the right side was airborne; she narrowly missed colliding with a vehicle travelling in the opposite direction, ahead of Ms Stephen-Nelson. Even in her intoxicated state, she must have realised that she was incapable of driving safely. The speed at which she drove was extreme, as was the demonstrated lack of control over the car. She had present in her blood not only a very high concentration of alcohol, but also an illicit drug. She had previous convictions for driving whilst there was present in her blood the prescribed concentration of alcohol.

43. All of that had to be balanced against the applicant’s reduced moral culpability resulting from her long history of exploitative relationships. Even taking into account her deprived background, the applicant’s moral culpability was high. There was no challenge to the finding that there had been “an absolute abandonment of responsibility”.

44. The sentencing judge did not fail to make the assessment. In a difficult sentencing exercise, he weighed up the competing factors and reached the result that he did. Ground one is not made out.

1. Ground two: manifest excess

45. The principles relating to the determination of such a ground of appeal are well known: in short, it is necessary to demonstrate that the sentence is unreasonable or plainly unjust: House v The King (1936) 55 CLR 499 at 504-505; [1936] HCA 40; Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54.

46. Counsel for the applicant pointed out that, when the 25% reduction in recognition of the plea of guilty is factored in, the starting point was a sentence of imprisonment for 12 years. This, it was submitted, was a manifestly excessive sentence.

47. Having regard to the circumstances of the offence, it might be thought difficult to imagine a more serious case of manslaughter by the use of a motor vehicle. What follows will unfortunately put that notion to rest.

48. In her written submissions, filed and served on the Crown in advance of the hearing, counsel for the applicant referred to four previous decisions of this Court in which consideration has been given to sentencing for offences of manslaughter arising out of the manner in which motor vehicles are driven, and which, counsel argued, demonstrate that the starting point, and, therefore, the sentence imposed, were so far out of line with the established pattern of sentencing as to be demonstrably manifestly excessive. In three of the cases cited the sentence was markedly less than the starting point of 12 years.

49. The cases to which counsel for the applicant referred were:

• Woodbridge v R [2010] NSWCCA 185; (2010) 208 A Crim R 503;

• R v Cameron [2005] NSWCCA 359; (2005) 157 A Crim R 70;

• R v Cramp [1999] NSWCCA 324; (1999) 110 A Crim R 198;

• R v Gordon (No 8) [2017] NSWSC 574.

50. The facts in Woodbridge in a number of respects bear a close similarity to those of the present. Ms Woodbridge was convicted after trial of one count of manslaughter by gross criminal negligence and one count of aggravated dangerous driving occasioning grievous bodily harm, contrary to s 52A(4) of the Crimes Act, arising out of the manner in which she drove a motor vehicle. A maximum penalty of imprisonment for 11 years is prescribed for the dangerous driving offence. The circumstance of aggravation was that there was present in Ms Woodbridge’s blood the prescribed concentration of alcohol. Both offences arose out of the collision of a vehicle being driven Ms Woodbridge with another vehicle. The passenger in the other vehicle was killed; the driver was very seriously injured. For the purposes of s 52A(4) the prescribed concentration of alcohol is more than 0.15 grams per 100 ml of blood (s 52A(9)). Ms Woodbridge was found to have a blood alcohol concentration that was calculated to have been, at the time of the collision, not less than 0.277 grams per 100 ml of blood.

51. In her intoxicated state Ms Woodbridge had, before the collision, driven a distance of 9 kilometres and through 18 traffic lights, through built up areas which included shopping centres and schools. She had a previous conviction for driving while there was present in her blood the high range prescribed concentration of alcohol (0.15 grams or more in 100 ml of blood). She also had a number of speeding offences on her record. In these circumstances the sentencing judge found that there had been an abandonment of responsibility.

52. Ms Woodbridge had suffered from depression and was undergoing psychological and psychiatric treatment.

53. At first instance she was sentenced, in respect of the manslaughter offence, to imprisonment for 5 years with a non-parole period of 3 years. On the dangerous driving count she was sentenced to a fixed term of imprisonment of 2 years. After some accumulation the overall sentence was imprisonment for 6 years with a non-parole period of 4 years. A Crown appeal asserting manifest inadequacy of the sentence was, by majority, upheld. For the manslaughter offence a term of imprisonment for 7 years with a non-parole period of 4 years was substituted; for the dangerous driving offence a partially concurrent fixed term of imprisonment for 3 years was imposed. Taking into account accumulation and concurrence, the overall sentence was one of a total term of imprisonment of 9 years with a non-parole period of 6 years.

54. Resentencing of Ms Woodbridge took place after the insertion of s 68A into the Crimes (Appeal and Review) Act 2009 (NSW), which reversed a long standing practice in this Court that, on sentencing after a successful Crown appeal, a sentence less than otherwise would have been imposed was justified. The sentence imposed on Ms Woodbridge after appeal cannot therefore be explained by reference to that practice.

55. As counsel for the applicant pointed out, Ms Woodbridge was sentenced in relation to two offences, in not materially different circumstances from those in the present case, and where she was not entitled to any reduction by reason of the utilitarian value of the plea of guilty, or of contrition or remorse. The appropriate comparator, so far as the applicant is concerned, is the starting point of 12 years before the 25% reduction referrable to her plea of guilty.

56. In Woodbridge, the principle of totality applied. The manslaughter sentence cannot be viewed in isolation from the dangerous driving sentence. It is, however, a significantly lesser sentence than that imposed on the applicant. In the result, after a successful Crown appeal, without the benefit of any reduction for a plea of guilty, and in relation to two offences, Ms Woodbridge’s total head sentence was equal to that imposed on the applicant, and her non-parole period was slightly less.

57. Of course, a sentence imposed in one case does not determine a sentence in another, even if the cases are substantially comparable.

58. Other cases cited by counsel lend support to her proposition that the sentence imposed on the applicant is out of step with current sentencing practice. In R v Cameron [2005] NSWCCA 359; (2005) 157 A Crim R 70 the offender was charged with three counts of manslaughter and one of dangerous driving causing grievous bodily harm arising out of a collision of the powerful vehicle he was driving with a telegraph pole. The collision occurred on Mr Cameron’s 21^st birthday (or the early hours of the following morning). Mr Cameron had never held a driver’s licence but was permitted, at his request, to drive the vehicle. He was carrying four passengers, including the owner of the vehicle. He was intoxicated; his blood alcohol level was calculated as having been, at the time of the collision, somewhere in excess of 0.114 mgs of alcohol per 100 ml of blood. Other drugs (methamphetamine and cannabis) were found in his system.

59. On a road subject to a 50 kilometre per hour speed limit Mr Cameron reached speeds considerably in excess of 100 kilometres per hour. During the course of the drive he was asked, more than once, to slow down. Three passengers in the vehicle were killed; one suffered grievous bodily harm. At the time Mr Cameron was on conditional liberty subject to a two year good behaviour bond as a consequence of earlier offences.

60. Mr Cameron had been diagnosed as suffering Attention Deficit Hyperactivity Disorder which had affected his school performance; he was diagnosed, as a result of the collision, as needing regular and consistent psychiatric care. He was found to be genuinely contrite and remorseful.

61. At first instance Mr Cameron was sentenced, on each count of manslaughter, to imprisonment for 6 years with a non-parole period of 2 years. On the dangerous driving count he was sentenced to a fixed term of imprisonment for 3 years. After allowing for some accumulation of the sentences, the overall sentence was one of imprisonment for 8 years with a non-parole period of 4 years. Incorporated in the sentences was some allowance (15 – 20%) attributable to the pleas of guilty which were entered on the day fixed for a trial to commence.

62. A Crown appeal was upheld (McClellan CJ at CL, Grove and Hislop JJ). The Court substituted sentences, on each count of manslaughter, of imprisonment for 7 years with a non-parole period of 4 years; on the dangerous driving count, a sentence of imprisonment for a fixed term of 3 years was imposed. The overall sentence that resulted, after some accumulation, was one of imprisonment for 9 years with a non-parole period of 6 years. Thus, in respect of three counts of manslaughter and one of dangerous driving causing grievous bodily harm, the head sentence imposed on Mr Cameron was equal to that imposed on the applicant, and the non-parole period was slightly less. That also took into account a lower level of reduction referable to the pleas of guilty.

63. That sentence has to be seen in light of the former practice of this Court, referred to above and operative at the time Mr Cameron was sentenced, that when resentencing after a successful Crown appeal, this Court will impose a sentence less than otherwise would have been imposed. McClellan CJ at CL said:

“3   But for the fact that this is a Crown appeal in respect of which the accepted principles require the respondent to be sentenced at the lowest end of the available range … to my mind a significantly greater sentence may have been appropriate”.

64. The facts in R v Cramp [1999] NSWCCA 324; (1999) 110 A Crim R 198 were quite different. Mr Cramp, then 55, supplied alcohol to a 16 year old girl and then permitted her to drive his motor vehicle a considerable distance on a country road. She was by then intoxicated. He also was intoxicated. The 16 year old held a learner’s permit but no licence. Her two younger brothers and a friend were also in the car. Mr Cramp incited the girl to drive at greater speeds and she reached speeds of 150 kilometres per hour. She lost control of the vehicle and struck a telegraph pole. She was killed. The applicant received serious head injuries and suffered brain damage. At the time of the collision the applicant’s blood alcohol concentration was between 0.13 and 0.178 milligrams per 100 litres of blood.

65. This was not the first occasion on the day in question when Mr Cramp had followed a similar course of action. He had earlier similarly encouraged the 16 year old to drink, to drive, and to increase her speed. He had two previous convictions for driving whilst there was present in his blood the prescribed concentration of alcohol.

66. Mr Cramp was charged with manslaughter. He pleaded not guilty to the charge and was convicted after trial. He was sentenced to imprisonment for 9 years and 4 months with a non-parole period of 7 years. He appealed against both the conviction and the sentence imposed. Each appeal was dismissed. Thus, without any reduction by reason of a plea of guilty, the sentence was only marginally longer than that imposed on the applicant.

67. The last of the cases cited on behalf of the applicant (R v Gordon (No 8) [2017] NSWSC 574) involved the conviction, after trial, for manslaughter by an unlawful and dangerous act, resulting from the manner in which the offender drove a car which he put into reverse in order to collide with the victim. The offender was grossly intoxicated and had a criminal record for offences of compulsive violence. The offender had offered a plea to a lesser charge prior to trial, and, notwithstanding that he was convicted by a jury, he was allowed a reduction of 15% for that offer. Mr Gordon was sentenced to imprisonment for 10 years with a non-parole period of 6 years and 6 months. He was allowed a 15% reduction in recognition of his proffered plea. The starting point was therefore a sentence of 11 years and 9 months.

68. In its written submissions in respect of this ground of appeal, the Crown confined itself to the proposition that sentences passed in other cases do not establish a “correct range” (Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45) and that manslaughter cases present particular difficulties in establishing an appropriate range because of the “protean” nature of the offence.

69. In oral submissions the Crown drew attention to what it contended were broadly comparable cases in which equivalent or heavier sentences have been imposed. No notice of these cases had been given to counsel for the applicant and she protested that she had had no opportunity to consider them. That protest was justified.

70. None of the cases to which the Crown referred was properly comparable to the present case. Each involved multiple deaths and/or serious injuries. In Lawler v R [2007] NSWCCA 85; (2007) 169 A Crim R 415 the offender was charged with one count of manslaughter and two counts of causing grievous bodily harm, arising out of his driving of a heavy prime mover and trailer, each of which was unregistered and uninsured, with brakes that the defendant knew to be defective. An overall sentence of imprisonment for 10 years and 8 months, with a non-parole period of 8 years (after a sentence reduction of 25% referrable to the offender’s pleas of guilty), was held not to be manifestly excessive. The starting point before reduction was 14 years with a non-parole period of 10 and a half years.

71. The offender in Day v R [2014] NSWCCA 333; (2014) 69 MVR 103 was also driving a heavy truck, this time a tipper truck. It struck four cyclists, one of whom died. The offender was suffering from “acute exhaustion” as a result of having worked excessive hours in the preceding period. He also was charged with one count of manslaughter and two of dangerous driving causing grievous bodily harm.

72. An overall sentence of imprisonment of 10 years with a non-parole period of 7 years (again, after reduction of 25%) was held not to be manifestly excessive.

73. In Duncan v R [2012] NSWCCA 78 the offender was aged 36 and was driving a vehicle on a country road with five young people as passengers. Three of them were 15 and 16 years old. One was 13. At an earlier point in the evening the car had been driven by one of the passengers. Ms Duncan taunted him, encouraging him to drive faster. Under his control, and in response to Ms Duncan’s taunts, the car reached a speed of 210 kilometres per hour.

74. Ms Duncan took the wheel, and told the young man that she would “beat [his] speed”. She accelerated to about 200 kilometres per hour. The car failed to take a bend in the road and crashed into bushland, colliding with a number of trees. The car “sheared in half”. Two of the passengers were killed, three suffered serious injuries.

75. Ms Duncan was charged with two counts of manslaughter and three of dangerous driving causing grievous bodily harm. On each count of manslaughter, sentences of imprisonment for 9 years and 6 months with non-parole periods of 5 years were imposed. Fixed terms of imprisonment for 3 years were imposed for the dangerous driving offences. An overall sentence of 12 years and 6 months with a non-parole period of 8 years after accumulation and concurrency was imposed and was held not to be manifestly excessive.

76. These decisions do not assist me in determining whether the sentence imposed on the applicant was outside the bounds of a legitimate sentencing discretion. In each case, there were multiple offences; in Lawler and Day the nature of the vehicles was such as to call for particular caution. In Duncan the conduct of the offender was, by a significant margin, more reprehensible than that of the applicant.

77. The cases propounded on behalf of the applicant as reference points are more nearly comparable.

78. In Hili, the plurality in the High Court stated the principles to be applied in relation to the use of sentencing in other cases in the determination of the sentence to be imposed in a particular case. In the administration of criminal justice reasonable consistency is sought. The consistency that is sought is in the application of relevant legal principles. To that end, sentences imposed in other cases can have a role to play, as indicators of what have been considered by experienced sentencing judges and appellate courts to be appropriate dispositions in individual cases. The raw data – the actual sentences imposed – is rarely sufficient to provide any meaningful guidance. The circumstances of the individual cases need to be examined. That examination, in relation to the cases advanced on behalf of the applicant and the Crown as relevant and comparable, has persuaded me that the sentence imposed on the applicant is inconsistent with past and current practice. In those few cases where an equal or greater sentence was imposed (or would, but for reduction, have been imposed), the offending behaviour was of considerably greater magnitude than that of the applicant. Invariably, more deaths and/or injuries were caused.

79. I am satisfied that the sentence imposed on the applicant was, having regard to prevailing sentencing practice, manifestly excessive and should be set aside. It will therefore be necessary that the court proceed to exercise the sentencing discretion afresh: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37.

80. I have rejected the challenge to the approach taken by the sentencing judge to the evidence of the applicant’s early life and disadvantage. In other respects the findings of the sentencing judge have not been challenged. I would adopt them.

81. Against the possibility of resentencing, the court received an affidavit affirmed by the applicant on 28 April 2020, and one affirmed by her solicitor on 29 April 2020. These confirm that the applicant is continuing with the progress she had already made towards rehabilitation.

82. There have been circumstances that have made the applicant’s incarceration more onerous than it otherwise would have been. The house in which her children were living was threatened by bushfires that were widespread in NSW in December/January, and the children were evacuated. She had no contact with them at that time.

83. Family visits resumed, but were terminated with the outbreak of COVID-19 in March or April of 2020. That outbreak also caused restrictions within the prison where the applicant is held. These are relevant circumstances to take into account in the sentencing exercise. They have some, but limited, bearing on the selection of an appropriate sentence.

84. In my opinion, the appropriate starting point for the offence is imprisonment for 10 years. Application of a 25% reduction for the prompt plea of guilty reduces that to 7 years and 6 months. Implementing the finding of special circumstances, I propose that the applicant be sentenced to imprisonment for 7 years and 6 months with a non-parole period of 5 years.

85. The orders I propose are:

1. Leave to appeal against sentence is granted;

2. The appeal is allowed and the sentence imposed in the District Court is quashed;

3. In lieu thereof the applicant is sentenced to a non-parole period of imprisonment for 5 years, commencing on 13 June 2019 and expiring on 12 June 2024, with a balance of term of 2 years and 6 months which will expire on 12 December 2026.

   86. ROTHMAN J: I agree with Simpson AJA both as to the orders proposed and her Honour’s reasons therefor.

   87. BELLEW J: I have had the advantage of reading, in draft, the judgment of Simpson AJA. I agree with her Honour’s conclusion as to ground 1. I also agree with her Honour’s conclusion as to ground 2, but as to that ground I wish to add the following observations of my own.

   88. The applicant's driving was, quite simply, appalling. In my view, it is of some significance that in the period of time which elapsed between the applicant leaving the supermarket and striking Ms Stephen-Nelson, there were a number of objective indicators which made it plain that the applicant was in no fit state to drive a motor vehicle. These included the applicant:

   1. driving into a pole, driving into a hedge on two separate occasions, and rejecting two offers to be driven home by an acquaintance who was observing her driving, all before she had even left the confines of the supermarket car park;

   2. driving in a dangerous fashion immediately upon leaving the car park, including accelerating over a speed hump resulting in the scraping of the undercarriage of her vehicle;

   3. narrowly missing striking a young boy, in circumstances where she exhibited what one bystander described as the worst driving that she had ever seen;

   4. colliding with a speed sign, causing a steel post to snap near its base at a 90° angle, the door panel to be torn from the vehicle, and the side skirt to be torn from the door sill, in circumstances where her vehicle had left the road for a distance of 90m; and

   5. narrowly missing colliding with a car travelling in the opposite direction immediately prior to colliding with the vehicle driven by Ms Stephen-Nelson.

   89. The applicant’s failure to respond to even one of these objective indicators and immediately cease diving is seemingly explicable only by the fact that she was grossly intoxicated.

   90. Simpson AJA has set out in her judgment a number of cases to which this Court was referred by counsel for the applicant in support of the conclusion that the sentence is manifestly excessive. I have considered each of those cases carefully. In doing so, I have had regard to the fact that care must be taken when drawing comparisons between sentences passed in other cases. This is because sentencing requires the exercise of discretion in which a number of factors are taken into account: Dang v R [2014] NSWCCA 47 at [55]. As a consequence, considerable limitations must be applied in relying upon a series of individual cases to establish a range of sentence: Pham v R [2014] NSWCCA 115 at [57]. It is also important to bear firmly in mind that the consistency which is sought in sentencing means consistency in the application of the relevant legal principles, as opposed to mathematical equivalence: Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [48] – [49].

   91. Accepting those caveats, it remains the case that sentences imposed in previous cases can provide guidance to appellate courts. Accepting that it is only by examination of the whole of the circumstances that have given rise to the sentence that unifying principles may be discerned, such cases stand as a yardstick against which to examine a sentence which has been passed: Hili at [54], citing Director of Public Prosecutions(Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [303] – [305].

   92. Acknowledging all of these matters, I agree with Simpson AJA, for the reasons her Honour has given, that the authorities to which this Court was referred by counsel for the applicant support a conclusion that the sentence imposed on the applicant is manifestly excessive.

   93. I agree with the orders proposed by Simpson AJA.

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Amendments

13 April 2022 - [70] The words "dangerous driving causing death" removed and replaced with "two counts of causing grievous bodily harm".

Decision last updated: 13 April 2022