Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Norouzi v R [2020] NSWCCA 237 Hearing dates: 10 August 2020 Date of orders: 18 September 2020 Decision date: 18 September 2020 Before: Payne JA at [1] Walton J at [5] Fullerton J at [74] Decision: (1) An extension of time is granted to bring the appeal out of time. (2) Leave to appeal is granted. (3) The appeal is dismissed. Catchwords: CRIME – appeals – appeal against sentence – manifest excess – aggravated dangerous driving occasioning death conviction – extension of time –objective seriousness of the offence above mid-range – subjective features not out of ordinary or substantial – comparative cases – JIRS statistics Legislation Cited: Criminal Appeal Act 1912 (NSW) Crimes Act 1900 (NSW) Cases Cited: Bombardieri v R (2010) 203 A Crim R 89; [2010] NSWCCA 161 Conte v R [2018] NSWCCA 209 Hili v R; Jones v R (2010) 242 CLR 520; [2010] HCA 45 House v The King (1936) 55 CLR 499; [1936] HCA 40 Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255 Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 Moodie v R [2020] NSWCCA 160 Obeid v R [2017] NSWCCA 221 R v Shashati [2018] NSWCCA 167 R v Whyte (2002) 55 NSWLR 252; [2002] NSWCCA 343 R v Williams [2014] NSWCCA 200 Small v R [2020] NSWCCA 181 Smith v R [2011] NSWCCA 290 Vale v R (2016) 77 MVR 194; [2016] NSWCCA 154 Vuni v R [2006] NSWCCA 171 Wong v R (2001) 207 CLR 584; [2001] HCA 64 Category: Principal judgment Parties: Hasan Norouzi (Applicant) Regina (Crown) Representation: Counsel: S Kluss (Applicant) B Hatfield (Crown) Solicitors: Ross Hill & Associate Solicitors (Applicant) Solicitor for Public Prosecutions (NSW) (Crown) File Number(s): 2017/384582 Decision under appeal Court or tribunal: District Court Jurisdiction: Criminal Date of Decision: 30 September 2019 Before: Herbert DCJ File Number(s): 2017/384582 JUDGMENT 1. PAYNE JA: I have read the decision of Walton J in draft and agree with his Honour's reasons. I wish only to add a few brief observations of my own. 2. The Crown's submissions on the appeal tended to deprecate the relevance of sentencing statistics and prior cases as providing any assistance to this Court on a sentence appeal. I regard what Bell P has observed about these issues in Moodie v R [2020] NSWCCA 160 as stating the correct approach to those issues. 3. There are cases, of which Conte v R [2018] NSWCCA 209 was one, where 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. 4. I agree with the orders suggested by Walton J. 5. WALTON J: By a notice of appeal filed 8 May 2020, Hasan Norouzi ("the applicant") sought leave to appeal pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) against the sentence imposed on him in the Parramatta District Court on 30 September 2019. 6. As the Notice of Intention to Appeal was filed on 4 October 2019 and the Notice of Application on 8 May 2020, the applicant requires an extension of time to bring the appeal. There being no opposition to the grant of leave to extend time and having regard to the issues raised on the appeal, I would grant the extension of time to bring the appeal. The balance of this judgment shall proceed upon that premise. 7. The applicant was charged on indictment as follows: On 31 January 2019, the Director of Public Prosecutions on behalf of Her Majesty charges that HASAN ALI NOROUZI 1. on the 21st day of October 2017, aat [sic] Gladesville in the State of New South Wales, did drive a motor vehicle, namely a Holden Maloo Utility bearing New South Wales registration [redacted] at a speed dangerous to another person or persons, whereby the vehicle was involved in an impact as a result of which the death of James Alexander GRAY was occasioned, and the said Hasan Ali NOROUZI was driving the vehicle on a road at a speed that exceeded, by more than 45 kilometres per hour, the speed limit applicable to that length of road. S 52A(2) Crimes Act 1900 Law part code 158. AND the Director of Public Prosecutions FURTHER CHARGES that HASAN ALI NOROUZI 2. on the 21st day of October 2017, at Gladesville in the State of New South Wales, did drive a motor vehicle, namely a Holden Maloo Utility bearing New South Wales registration [redacted] at a speed dangerous to another person or persons, whereby the vehicle was involved in an impact as a result of which the death of James Alexander GRAY was occasion[ed]. S 52A(1)(b) Crimes Act 1900 Law part code 135. 1. The applicant pleaded guilty to Count 1 of the indictment in full satisfaction of the charges on the indictment. 2. The maximum penalty for the offence is 14 years' imprisonment. No standard non-parole period applies. 3. The applicant was sentenced in the District Court by Herbert DCJ ("the sentencing judge") to a sentence of imprisonment of 6 years 4 months' imprisonment, with a non-parole period of 4 years 6 months. The applicant was disqualified from driving for 5 years. 4. Her Honour gave a discount of 20% for the utilitarian value of the plea; the plea having been entered at the arraignment. No controversy arises on the appeal in that respect although, the Crown submitted the discount was generous given the factual controversies ventilated on sentence, as discussed below. 5. The sentencing judge found special circumstances due to the likelihood of the applicant's depression and anxiety causing an additional degree of hardship in serving a custodial sentence. It was considered that the applicant would benefit from an extended period of supervision to allow an adequate opportunity to address his mental health issues in the community. This resulted in a variation of the statutory ratio to 71% of the head sentence. GROUND OF APPEAL 1. The single ground of appeal was that the sentence imposed was manifestly excessive. FACTUAL BACKGROUND Agreed Facts 1. As mentioned, the sentence proceeded upon the basis of a partially agreed factual basis. The Crown's submissions accurately reflect the agreed matters. 2. On Saturday 21 October 2017, James Gray, the deceased, was socialising with friends at the Bayview Hotel at Victoria Road, Gladesville. At about 2:00am, Mr Gray left the hotel with his friend, Michael Ho. They bought food nearby and ate it at a small park near the Gladesville Public School. 3. At about 2:10am, a witness who had left the Bayview Hotel heard a car engine revving loudly. She saw a light blue utility driving fast down Victoria Road. She was about seven metres from Victoria Road on Jordan Street. The witness described the utility as speeding as it passed her. She heard a car horn and turned in the direction of the horn to see two friends running across Victoria Road and a third standing in the middle of the road as the utility passed them at speed. 4. At about this time, Mr Ho and Mr Gray decided to go home. Mr Ho arranged an Uber for Mr Gray, who was living at Abbotsford, and advised Mr Gray that he needed to meet the Uber driver on the opposite side of Victoria Road to where they had been sitting and they parted ways. 5. The applicant continued to drive down Victoria Road Gladesville at a high speed. The applicable speed limit was 60 kilometres per hour. 6. Mr Gray headed across Victoria Road near the traffic light controlled pedestrian crossing at the intersection of Victoria Road and Cowell Street, just outside the Bayview Hotel. The utility being driven by the applicant struck Mr Gray between 24 and 40 metres before the pedestrian crossing. At the time the applicant was approaching the traffic controlled intersection at high speed, (defined further below). The weather was fine, the road surface was dry and the traffic controlled pedestrian lights and street lights were functioning. It was free of pot holes, loose debris or contaminants. 7. At about 2:16am, the front offside panel of the driving light of the applicant's utility impacted heavily with Mr Gray. The impact most likely occurred in lane 3, closest to the median strip. The collision caused Mr Gray to be catapulted into the air, before landing in lane 3 (eastbound towards the CBD) in the middle of the intersection of Victoria Road and Cowell Street Gladesville. 8. Witnesses described hearing the engine of a car revving loudly directly before and at the time of the collision. They described the sound of the collision as an immense bang. 9. The applicant stopped his vehicle a short distance away in the bus lane, lane 1 on Victoria Road. A number of bystanders rendered aid to Mr Gray. He was attended to by emergency personnel before being taken to Royal North Shore Hospital, where he was pronounced "life extinct" at about 3:15am, after attempts to revive him were unsuccessful. 10. An autopsy report detailed that Mr Gray's death was caused by multiple blunt force injuries including two broken legs, a broken lower mandible and a fractured left arm. His blood alcohol concentration was 0.146 grams per 100 millilitres of blood. 11. The applicant's vehicle sustained significant damage: 1. the windscreen was shattered in two striking points; 2. blood was located on the windscreen and the driver's seat; 3. the front side of the bumper bar was dislodged from its bracket; 4. the side panel and bonnet were significantly dented; 5. the panel over the front driver's side arch was twisted and had small folds; 6. the front LED light and the bumper bar was dislodged; and 7. the front offside driving light was broken. 1. The vehicle had no mechanical failures that could have contributed to the collision. 2. The applicant had a blood alcohol concentration of 0.066 grams per 100 millilitres of blood. Cannabis was also detected as being present in his blood. Dr Judith Perl, pharmacologist, was unable to form an opinion as to whether there was a degree of impairment due to the drugs and alcohol detected at the time of the collision. However, Dr Perl opined that given the applicant's blood alcohol concentration, it was likely that there was some impairment due to alcohol, which may have contributed to the applicant's manner of driving and failure to see or react to the victim. 3. A crash data retrieval report revealed that the applicant's vehicle was travelling at the following speeds up to 1 second prior to the impact: 1. 141 kilometres per hour at 2.5 seconds prior to the impact; 2. 139 kilometres per hour at 1.5 seconds prior to the impact; and 3. 136 kilometres per hour 1 second prior to the impact. 1. Crash data demonstrated that the brakes had been applied, even though it was too late. The last recorded speed was at 117 kilometres per hour at 0.5 seconds before "the deployment event" (this expression is found in the Agreed Statement of Facts, it is there cross-referenced to the statement of Crime Scene Officer Gavin Lennon and, it may be inferred, it concerns the application of the brake by the applicant immediately before the impact with Mr Gray). It was not possible to determine at what point in the 0.5 second interval the impact with Mr Gray occurred. The applicant accepted, by his plea of guilty, that he was travelling 45 kilometres per hour above the speed limit at the time of impact. Based on crash data retrieval and an analysis of throw distance, using the estimate of the area of impact at 24 to 40 metres, the speed was no less than 100 kilometres per hour and up to a maximum of 117 kilometres per hour. 2. Senior Constable Follington gave evidence that he had viewed closed circuit television footage recorded from various cameras in the vicinity of the collision site. There was a constant flow of traffic and numerous people in the area at about the time of the offence. A recording prepared by the police of the route of travel taken on approach to the collision site was also played during the proceedings. Disputed Facts in the Course of the Sentencing Proceedings 1. The matters in dispute concerned the following: 1. whether or not the road surface was dry; and 2. the relevance and reliability of evidence showing the manner in which the applicant was driving some hours prior to the offence. 1. As to the first issue, the sentencing judge accepted that the road surface was dry at the relevant time in her reasons for sentence. 2. The applicant described the second issue as follows: A preliminary issue was the subject of a ruling and considered the admissibility of evidence of the applicant's driving captured on a dash cam during a separate journey about five hours prior to the offence. There was an issue in these preliminary proceedings as to what occurred to this camera particularly as to the events which founded the charge for which the applicant was to be sentence, her Honour proceeded on the basis that the dash cam itself is not available, and could not be forensically examined… The evidence sought to be included was as follows: "Video footage was located that recorded the applicant's vehicle travelling at various times. At 8.45pm he was shown travelling at 85 kilometres per hour in a 60 kilometre zone, at 8.48pm travelling at 80 kilometres per hour in a 60 zone, at 8.50pm travelling at 98 kilometres per hour in an 80 zone, at 8.53pm travelling at 101 kilometres per hour in a 70 zone, and at 8:53:24 travelling at 91 kilometres per hour in a 60 kilometre zone." The footage sought to be admitted by the Crown related to driving earlier in the evening where the Crown said the applicant was driving at times, some very briefly, but at a speed recorded as ranging from 18 kilometres per hour over the speed limit to 39 kilometres per hour over the speed limit. The applicant's objection to the admission of the evidence was on the basis that it was said to be irrelevant because it was not part of a continuous journey prior to the offence, and could not be said to be so closely related to the driving at the time. Reliance was placed on the decision of R v Shashati [2018] NSWCCA 167 at [23]. 1. Police located a dash cam within the applicant's vehicle and seized a storage device that contained dash cam footage. There was no footage of the index offence. The last recording located was of the vehicle being stationery at 11:43pm on 20 October 2017 (some hours prior to the offence). 2. Ultimately, the sentencing judge admitted the applicant's dash cam footage and found it to be reliable evidence that the applicant was driving at about, but not exceeding, the speeds shown on the dash cam. No challenge is made to that finding on this appeal. 3. The video footage located recorded the applicant's vehicle travelling at various times as follows: 1. at 8:45pm he was shown travelling at 85 kilometres per hour in a 60 kilometres per hour zone; 2. at 8:48pm he was shown travelling at 80 kilometres per hour in a 60 kilometres per hour zone; 3. at 8:50pm he was shown travelling at 98 kilometres per hour in an 80 kilometres per hour zone; 4. at 8:53pm he was shown travelling at 101 kilometres per hour in a 70 kilometres per hour zone; 5. at 8:53:24pm he was shown travelling at 109 kilometres per hour in a 70 kilometres per hour zone; and 6. at 8:53:55pm he was shown travelling at 91 kilometres per hour in a 60 kilometres per hour zone. 1. The evidence was held, by the sentencing judge, to be relevant to determining the applicant's moral culpability and tended to show "an ongoing attitude of behaving with a reckless disregard for the safety of others" such as to deny the applicant leniency that might be afforded to an offender where the behaviour was out of character or an isolated incident. REASONS FOR SENTENCE 1. The sentencing judge made a number of findings as to the objective seriousness of the offence which haves not been challenged on this appeal and which I accept for the purposes of this judgment. Those findings were as follows: 1. The offence occurred on a major Sydney road which, even after midnight, had a continuous flow of traffic and numerous pedestrians. The number of people at risk was not low. 2. The applicant had clear warning as to the manner of his driving as he had encountered pedestrians as he approached the site of the collision. 3. Whilst driving at a speed dangerous to another person is an element of the offence "that does mean that this Court cannot take into account the offender's speed as he approached the site, and the degree to which it is higher than the offence threshold being more than 45 kilometres per hour". This finding was available to her Honour in assessing the objective seriousness of the offence. At 2.5 seconds prior to impact the applicant was driving at 81 kilometres per hour over the speed limit. The applicant did apply his brakes prior to impact and at 0.5 seconds prior to impact he was driving at 117 kilometres per hour. 4. The intended length of the journey to be travelled was from Ryde to the city. 1. The sentencing judge concluded that the offence was above the mid-range of objective seriousness. Again, that finding was not challenged and, in my view, is correct. 2. The sentencing judge had regard to the following subjective factors: 1. The age of the applicant. He was 32 years of age at the time of sentencing. 2. The applicant's criminal record was "very short". He had one conviction for knowingly drive in a menacing manner prior to the offence. That offence occurred two years prior to the offence and the applicant's licence had only been reinstated for a period of three months. In his early twenties he had a number of speeding offences such that her Honour found that "to drive at speed or without appropriate regard for the safety of other road users is not out of character for the offender". Subsequent to the offence, he was charged with possess prohibited drug and stalk and intimidate. Her Honour found that, "the offender's record is not such as to disentitle him to leniency". 3. Whilst the applicant had loving and supportive family, his father died when he was 7 years of age and he travelled to Australia with his mother and two siblings as a refugee. He was married to his first cousin, a relationship he described as good and loving but which broke down after the offence. 4. The applicant worked as a house painter full time until he was injured in a motor vehicle accident in 2011. He was unable to work for about four years and then was engaged as a casual painter, albeit with ongoing back pain. 5. After the offence, the applicant became suicidal. He made one suicide attempt which subsisted when his wife intervened. He had admissions to hospital for his mental health. He suffered depression in 2015, referable to the earlier motor vehicle accident. He saw a psychologist, Mr Bradley Jones, for depression. After the accident he drank excessively and smoked cannabis. 6. He was clinically tested as having severe levels of depression and anxiety, although there was no evidence that, at the time of the offence, he suffered from a psychological or psychiatric disorder. 7. The sentencing judge referred to a report provided by the applicant's treating psychologist which indicated that the applicant had been referred for treatment in July 2018. It was indicated that the applicant had been addressing "severe alcohol abuse, relationship issues, grief from the offence, suicidal thoughts and emotional regulation". The treating psychologist considered that he was of a low risk of reoffending. 8. Reference was made to a Sentence Assessment Report which indicated the applicant was extremely remorseful, acknowledging that his conduct caused the death of an innocent man and lifelong grief and trauma to the deceased's family. In October 2017, the applicant wrote a letter to the family of the deceased expressing his condolences for their loss. The applicant wrote again in September 2019 acknowledging the content of the victim impact statements. Her Honour also referred to Community Corrections assessing the applicant as being of a low risk of reoffending. 9. Her Honour was satisfied that the applicant had reasonable prospects of rehabilitation and that the applicant was unlikely to reoffend. It was also found that the applicant was genuinely remorseful. 10. Her Honour took into character references provided by the applicant's family members, his general practitioner, friends and associates from the Akram Islamic Centre, which, in addition to references to remorse and distress, refer to the applicant as being a person who worked hard to support and encourage his family members including his brother's decorating business. The references are recorded as indicating that the applicant was "a good team leader, his family is loving and supportive". 1. As to moral culpability, the sentencing judge stated: I acknowledge that the offender has suffered from significant challenged and issues in his life including the death of his father when he was young, being a family of refugees, being injured in a serious motor vehicle accident and the breakdown of his marriage. A number of these matters would have contributed to the offender suffering with his mental health. The offender's mental health issues appear to have largely resolved prior to his offence, and been significantly impacted by his offence. There is no reduction in moral culpability, but it is relevant to special circumstances in this matter. The time of the collision was not the only time that the offender was acting with a high level of disregard for his obligations as a driver by driving well above the speed limit. 1. Her Honour also took into account that the offender should not have been driving because he had a prohibited drug in his system and was driving with a prescribed concentration of alcohol for an offence of low range prescribed concentration of alcohol. 2. Her Honour made the following further finding as to moral culpability: This is an offence involving the death of a single person who was a stranger to the offender and the offender has shown genuine remorse. It was accepted on his behalf in driving his motor vehicle in the manner he did at that location, the offender totally abandoned the responsibility to drive safely which he owed to other road users and to himself, his manner of driving was extremely dangerous. This is not a case of momentary or a casual lapse of attention it is a case with a high level of moral culpability. 1. The sentencing judge considered that general and personal deterrence were relevant considerations and stated that condign punishment was to be expected. No other penalty than imprisonment was appropriate. As earlier acknowledged, her Honour found special circumstances. CONSIDERATION 1. The applicant's case substantially relied upon statistics published by the Judicial Commission of New South Wales ("JIRS statistics") and "outcomes disclosed in comparative cases", which were said to demonstrate that the sentence imposed upon him was manifestly excessive. 2. It was, however, accepted that such material alone could not make out the ground of appeal and, hence, those contentions were braced with a submission that the sentence was "high" having regard to the "particular circumstances of this case" and, in particular, the applicant's significant subjective case. (Whilst there was no separate ground of the application for leave to appeal directed to the findings of the sentencing judge as to subjective features, it was contended that insufficient regard was given to the facts). 3. So expressed, the contentions by the applicant compel attention to the principles applicable to the determination of a manifest excess ground. 4. By contending the exercise of the sentencing discretion below resulted in a sentence which was manifestly excessive, the applicant must be taken as asserting the sentencing process was attended by the last mentioned error in House v The King (1936) 55 CLR 499 at 505, such that a sentence is manifestly excessive where the applicant shows that the sentence is "unreasonable or plainly unjust": Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 ("Markarian") at [25] (per Gleeson CJ, Gummow, Hayne and Callinan JJ); Obeid v R [2017] NSWCCA 221 ("Obeid") at [443] (per RA Hulme J, with whom Bathurst CJ, Leeming JA and Hamill J agreed). This has to be established in a context where there is no single correct sentence and where judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle: Markarian at [27]; Vuni v R [2006] NSWCCA 171 ("Vuni") at [33] (per Hoeben J (as his Honour then was), with Tobias JA and James J agreeing); Vale v R (2016) 77 MVR 194; [2016] NSWCCA 154 at [37] (per Hoeben CJ at CL, with whom Rothman J and R A Hulme J agreed). It is not to the point that the Court might have exercised the sentencing discretion differently: Obeid at [443]. 5. Intervention is not warranted simply because the sentence is "markedly different", from other sentences that had been imposed in other cases: Wong v R (2001) 207 CLR 584; [2001] HCA 64 ("Wong") at [58]; Obeid at [443]. Rather, there must be some misapplication of principle, even though when and how is not apparent from the reasons given in the impugned judgment: Hili v R; Jones v R (2010) 242 CLR 520; [2010] HCA 45 at [58] (per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ); Wong at [58]. 6. An immediate problem confronting the applicant's case is how the contentions expressed at such a high level of generality, as summarised above, might, having regard to those principles, satisfy this Court that the sentence imposed was manifestly excessive. 7. In any event, I accept the submissions of the Crown that, in the facts and circumstances of the matter, the sentence imposed upon the applicant may not be characterised as unreasonable or plainly unjust. 8. I have earlier summarised, with acceptance, the findings of the sentencing judge as to the objective seriousness of the offence. Particular attention may also be given to three factors which demonstrate why the objective seriousness of the offence was above the mid-range: 1. The sentence of 6 years 4 months' imprisonment, with a non-parole period of 4 years 6 months, must be considered in the light of the maximum penalty for the offence, namely, 14 years' imprisonment. 2. The objective seriousness of the offence is informed by: 1. the excessive speeds at which the applicant was travelling in a relatively busy area (up to 141 kilometres per hour, being 81 kilometres per hour over the speed limit at 2.5 seconds before impact); 2. the warning given to the applicant, moments before the collision; 3. that pedestrians were in the vicinity and seeking to cross the road; and 4. the intended length of the journey of the applicant from Ryde to the city (it was not short). 1. The applicant's level of moral culpability was high. His driving at excessive speeds was not an isolated occurrence and he was driving at high speeds at the time of the offence, which was accompanied by a blood alcohol concentration above the legal limit and with a prohibited drug in his system. 1. The subjective factors of the matter do not demonstrate the sentence imposed was manifestly excessive. 2. The applicant relied on the following "significant matters of mitigation in the applicant's case": 1. the objective criminality was described as above the mid-range, but not at the high end; 2. a record that did not disentitle him to leniency; 3. his relatively early plea of guilty; 4. his remorse and contrition; 5. his strong family and community support; 6. his pre-existing mental health; 7. his continuing depression and anxiety; 8. his disadvantaged background; 9. a finding that special circumstances should apply; 10. the finding that there were good prospects for rehabilitation; and 11. he was unlikely to reoffend. 1. It may be accepted that the applicant's factors in mitigation were favourable, even positive in some respects, but the aforementioned factors relied upon by the applicant do not point to a subjective case that was so substantial or out of the ordinary as could sustain a manifest excess ground (when seen in the light of the aforementioned objective factors) for the following reasons (each corresponding to factors relied upon by the applicant, listed in the immediately preceding paragraph): 1. As to (a) and (b), I have discussed the objective seriousness of the offence above, together with observations as to the moral culpability of the applicant. While the applicant's criminal history involved convictions for driving matters in 2015, including an offence of knowingly drive in a manner that menaces another, it did not disentitle him to leniency. 2. As to (c), a discount of 20% was applied in circumstances where the applicant did not plead guilty at the earliest opportunity and where there was evidence called at sentence as to disputed questions on fact which, for the most part, were resolved against the applicant. 3. As to (d), her Honour made a favourable finding with regard to the applicant's remorse and contrition in the circumstances. Remorse is not easily measured, particularly where it is to be weighed against causing the death of a stranger and the grief of the deceased's family. 4. As to (e) and (h), the applicant's disadvantaged background appears to be limited to the fact that the applicant came to Australia as a refugee and lost his father at a young age. This does entitle someone to some discount but not substantial. He otherwise reported a generally loving and supportive family. 5. As to (f), (g) and (i), his mental health, which had declined following the offence, was taken into account in a finding of special circumstances, which varied the statutory ratio to 71% of the head sentence. 6. As to (j) and (k), the combined presence of genuine remorse and positive prospects of rehabilitation is not unusual for such offending: see Bombardieri v R (2010) 203 A Crim R 89; [2010] NSWCCA 161 ("Bombardieri") at [4], Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255 ("Lehn") at [40]; R v Williams [2014] NSWCCA 200 ("Williams") at [23], [25]. While the sentencing judge accepted that the applicant was remorseful, had "reasonable" prospects of rehabilitation and was unlikely to reoffend, the applicant had displayed "limited insight into and judgment regarding his offending behaviour". 1. In my view, when all factors are considered, and noting the applicant's submissions of "a starting point… of some eight years", the sentence imposed was well within the range of sentencing for the offence in all of the circumstances of the applicant and the offending. 2. As mentioned, the applicant relied upon JIRS statistics and comparable cases. 3. As to the former consideration, the material offers little or no support for the applicant's case. I note the observations of Bell P (with whom Davies and N Adams JJ agreed) in Moodie v R [2020] NSWCCA 160 ("Moodie") at [88] as follows: [88] Of course it remains correct, as Wilson J pointed out in Sabbah v R (Cth) [2020] NSWCCA 89 at [134] that a "glib" recitation of sentences imposed for similar offences without more will be of little or no utility to either a sentencing judge or an appellate court. Relatedly, the use of statistics alone is generally unlikely to supply the granularity necessary for critical appraisal of the closeness of cases presented as "like" or "similar" or "comparable". 1. In this case, the JIRS statistics relied upon by the applicant represent a very small statistical sample size of ten, filtered to show only offenders for the offence relevant to the ages between 31 and 40 years. The prior offences featured in the JIRS statistics were of a different type than the present case and concern offences in which a discount for the plea of guilty was afforded (although the degree of discount is unknown). Even though the applicant's sentence is towards the upper end of those represented in the sample, I agree with the submissions advanced by the Crown that there is nothing on the face of the JIRS statistics to indicate a misapplication of principle. 2. Turning to the consideration of comparable cases, in Moodie Bell P observed (at [85]-[87] and [89]): [85] Whilst it is true to say that no two cases and no two offenders are identical or the same, I do not share the opinion expressed by Wilson J that "no two crimes and no two offenders are alike": cf FL at [79]. Indeed, decisions which do take into account comparative sentences proceed on the basis that cases do share common, or at least similar, features. So too, guideline judgments proceed by reference to a concept of a "frequently recurring case": see, for example, Whyte at [204]. [86] In Wong at [12], Gleeson CJ observed that: Both in argument, and in reasons for judgment, inadequacy or excessiveness is often demonstrated by a process of comparison. Such a process is a legitimate forensic tool for advocates and judges; and has been employed for many years. [87] Further, in Hili v R (2010) 242 CLR 520; [2010] HCA 45 at [53] (Hili), the plurality went so far as to say that "in seeking consistency, sentencing judges must have regard to what has been done in other cases" (emphasis added). Moreover, in the context of not disturbing the Court of Criminal Appeal's decision that the sentence imposed in that case at first instance was manifestly inadequate, the plurality observed at [62] that the "chief considerations which pointed to inadequacy in these cases were the nature of the offending, and the sentences that had been imposed in cases most closely comparable with the present" (emphasis added). Indeed, in Hili, the plurality did not question the legitimacy of the use of "only one or two … closely comparable" cases (see at [64]) to found the conclusion of manifest inadequacy, stating at [67] that the: … sentences passed on the applicants at first instance were very much lower than those passed in either of those cases. Allowing, as one must, for the different circumstances of each of the cases under consideration, the difference in sentences passed on the applicants at first instance, and those that were passed on the other offenders, is so large that the Court of Criminal Appeal was right to conclude that 'there must have been some misapplication of principle [by the sentencing judge], even though where and how is not apparent from the statement of reasons'. [89] It is also correct, as Wilson J observed in FL at [78], that the analysis is not aided by an uncritical assembly of a greater number of cases involving the same offence, where little or no attention is paid to the degree of similarity between the cases relied upon and the facts of the case in which the sentencing discretion is being exercised or re-exercised by an appellate court. 1. Reference may also be made to the additional remarks made by Bellew J (who agreed with Simpson AJA) in Smith v R [2020] NSWCCA 181 (at [90]-[91]). His Honour observed: [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 R; Jones v R (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] . 1. I also mention the judgment of Johnson J (with whom McCallum JA and Adamson J agreed) in McGonigle v R [2020] NSWCCA 84 at [125]-[128] as follows: [125] It is appropriate to say something about the comparative cases relied upon by the Applicant. Counsel for the Applicant submitted that some assistance may be gleaned from these decisions although he acknowledged the limitations expressed concerning this class of material in a sentencing appeal. [126] In R v Pham (2015) 256 CLR 550; [2015] HCA 39 at [50], Bell and Gageler JJ said that "comparable cases decided by intermediate courts of appeal provide the most useful guidance to a sentencing judge" and that those "reasons reveal the mix of factors that were taken into account and will usually involve consideration of the appropriateness of the sentence imposed at first instance". [127] In Director of Public Prosecutions (Vic) v Dalgliesh (a pseudonym) (2017) 262 CLR 428; [2017] HCA 41, Gageler and Gordon JJ said at [83] (footnotes omitted): Sentences are not binding precedents, but are merely 'historical statements of what has happened in the past'. As was said in Hili v R, '[t]hat history does not establish that the range is the correct range, or that the upper or lower limits to the range are the correct upper and lower limits' (emphasis added). Examination of sentences imposed in comparable cases may inform the task of sentencing but such examination goes beyond its rationale when it is used to fix boundaries that, as a matter of practical reality, bind the court. [128] With those principles in mind, I will consider the cases relied upon by the Applicant. 1. The applicant relied upon the following cases as being comparable: 1. Bombardieri; 2. Smith v R [2011] NSWCCA 290 ("Smith"). 3. Lehn; 4. Williams; and 5. R v Shashati [2018] NSWCCA 167 ("Shashati"). (It may be noted that in Conte v R [2018] NSWCCA 209, Payne JA and Button J discussed, in the context of a conviction for, inter alia, an aggravated dangerous drug occasioning death offence contrary to s 52A(2) of the Crimes Act a number of the above judgments at [12], namely, Bombardieri, Smith, Lehn and Shashati). 1. In my view, the "comparative" cases do not demonstrate that the sentence imposed on the applicant was manifestly excessive. As previously noted, prior to the 20% discount, the starting point for the applicant's head sentence of 6 years 4 months' imprisonment, was 7 years 11 months' imprisonment. 2. Bombardieri involved an offender aged 20 years who committed the offence of aggravated dangerous driving causing death in circumstances where there was a police pursuit and the offender drove at speeds up to 160 kilometres per hour, including in speed zones of 80 and 100 kilometres per hour, over a significant distance. The key respects in which Bombardieri differed from the present case was that the offence was considered to be at the high end of objective seriousness (the present fell above the mid-range), it involved a youthful offender and there was "wealth of medical evidence" including from a psychiatrist that the offender was, both at the time of the offence and at sentence, "psychologically disturbed": [29]-[31]. This Court re-sentenced the offender to 9 years' imprisonment, with a non-parole period of 5 years 9 months, revealing a starting point of over 10 years 9 months (the discount being 16.66%), close to 3 years more than the present applicant's pre-discount sentence. 3. In Smith, the aggravating circumstance was that the prescribed concentration of alcohol (0.15) was present in the offender's blood, which returned a reading of 0.188 grams of alcohol per 100 millilitres. The offender, Mr Smith, was driving between 20 to 40 kilometres per hour above the speed limit. Mr Smith was re-sentenced by this Court to imprisonment for 7 years, with a non-parole period of 5 years 3 months (which reflected a starting point of 9 years 4 months' imprisonment). 4. For comparative purposes, it may be observed that the offender in Smith had a significantly higher blood alcohol reading than the applicant, although the applicant was, nonetheless, in excess of the legal driving limit and tested positive to cannabis. Conversely, the applicant was speeding to a greater degree. One feature identified as favouring some leniency in Smith, which was not present in the applicant's case, was that the deceased was not a stranger; she was a passenger and the offender's girlfriend: at [13]. On the other hand, the offender did not have a criminal history that entitled him to leniency: Smith at [4]. Although features may be identified that pull in different directions, the pre-discount sentence in Smith exceeded the applicant's by 1 year 5 months. The comparison with the decision in Smith does not suggest that the applicant's sentence was manifestly excessive. 5. The third decision referred to by the applicant, where the undiscounted sentence exceeded that in the applicant's case, is Lehn. In Lehn, the offender was 24 years old and drove a stolen car while substantially impaired by the use of methylamphetamine. He did not know how to drive a manual car and fled the scene after colliding with a pedestrian. This Court imposed a sentence of imprisonment for 8 years 3 months, with a non-parole period of 5 years, which reflected a starting point of 11 years' imprisonment for the head sentence. While the objective circumstances in Lehn were more serious than the present matter, a comparison does not suggest that the current sentence was manifestly excessive given that the starting point in Lehn was over 3 years more than that of the sentence for the applicant, notwithstanding Mr Lehn's relative youth, difficult upbringing and drug addiction: Lehn at [30]-[35], [107]. 6. Williams was a Crown appeal against the sentence imposed on a 20 year old offender for the non-aggravated charge of dangerous driving causing death (s 52A(1) of the Crimes Act), which carried the lower maximum penalty of 10 years' imprisonment. Despite the fact that the typical features of the guideline judgment in R v Whyte [2002] NSWCCA 343; 55 NSWLR 252 had been present and the offender had been engaged in driving that was "irresponsible and competitive in the short interval before he struck [the deceased]" and bore a high degree of moral culpability, he was initially sentenced to a head sentence of only 2 years' imprisonment. This Court upheld the Crown appeal and re-sentenced the offender to imprisonment of 2 years 8 months, with a non-parole period of 1 year 9 months, allowing for a 10% discount for a late plea of guilty. In so doing, the Court took into account evidence of the deterioration of the offender's mental health and, while not exercising the residual discretion, moderated the extent of intervention: Williams at [45]-[48]. 7. Shashati was also a Crown appeal. In Shashati, the offender had driven under the influence of methylamphetamine and, in attempting to bypass slow moving traffic, travelled at 80 kilometres per hour along a bitumen shoulder with one wheel on a grass verge before hitting a drainage ditch that caused the vehicle to stop instantly inflicting the neck and head injuries that killed the deceased, his teenage nephew. (It was noted that the fatal consequences for the deceased may have been due to the fact that his seatbelt was a lap belt with no shoulder restraint: Shashati at [7]). The circumstance of aggravation was that the offender's "ability to drive was very substantially impaired by the fact that [he] was under the influence of a drug (other than intoxicating liquor)". The Court re-sentenced Mr Shashati to imprisonment for a period of 6 years, with a non-parole period of 3 years 3 months, reflecting no discount (the initial head sentence was 4 years 6 months' imprisonment). 8. Whilst Williams and Shashati involved lesser sentences than that imposed on the present applicant, Williams does not, in my view, offer a useful comparison because of relevant differences including the maximum penalty for the offence charged. The driving in Shashati involved less inherent risk to the safety of others than that engaged in by the applicant because Shashati was driving along a verge beside slow moving traffic, whereas the applicant was driving at high speed through a populated pedestrian area at night where persons other than the deceased were in the immediate vicinity (it is also noted that offender's head sentence in Shashati was 4 months less than the applicant's). Neither case supports, in my view, the applicant's argument that the sentence imposed on him was manifestly excessive. CONCLUSION 1. The applicant has not demonstrated that the sentence imposed upon him was manifestly excessive. 2. The applicant should be granted leave to appeal, given the discussion of principle evoked by the appeal. Otherwise the appeal should be dismissed. ORDERS 1. I would make the following orders: 1. An extension of time is granted to bring the appeal out of time. 2. Leave to appeal is granted. 3. The appeal is dismissed. 1. FULLERTON J: I have read the decision of Walton J circulated in draft and the concurring judgment of Payne JA and his Honour's additional remarks. I also agree with the orders proposed by Walton J. 2. I would only wish to add that Bell P's review in Moodie of the principled approach to a consideration of comparative cases where a submission is made that a sentence is "unreasonable or plainly unjust" is consistent with the authorities that have both preceded that review and consistent with the most recent statement of principle in Smith v R [2020] NSWCCA 181. 3. For my part, I was assisted by the Crown's analysis of the cases upon which the applicant relied as respondent to the appeal. I did not interpret those submissions as understating the relevance of sentencing statistics or relevant comparative sentences as a useful comparator in an appropriate case. Rather, neither the sentencing statistics nor the cases cited by the applicant as comparators allowed for a finding that the sentence imposed by the sentencing judge in this case was other than in accordance with the legitimate reach of her sentencing discretion. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 21 September 2020