Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Chandler v R [2023] NSWCCA 59 Hearing dates: 23 September 2022 Date of orders: 22 March 2023 Decision date: 22 March 2023 Before: Beech-Jones CJ at CL at [1]; Hamill J at [81]; N Adams J at [90]. Decision: (1) Extend the time in which the applicant may apply for leave to appeal against sentence up to and including 23 February 2022; (2) Grant leave to appeal against sentence; (3) Set aside the sentence imposed on Christopher Chandler on 14 December 2017; (4) In lieu, impose a sentence of imprisonment, taking into account the offences on the Form 1, of 15 years and 8 months commencing on 12 August 2017 and expiring on 11 April 2033 with a non‑parole period of 10 years and 6 months commencing on 12 August 2017 and expiring on 11 February 2028. Catchwords: CRIME – appeals – appeal against sentence – manifest excess – applicant sentenced to 19 years' imprisonment with non-parole period of 13 years – one count of manslaughter arising from an unlawful and dangerous act – offender struck and killed 18-month-old child by deliberately driving stolen car through fence of suburban home – whilst evading police pursuit and with knowledge of the appreciable risk of serious injury to persons in the backyard – offender was 22 years old and had a substantial criminal history – offender experienced a profoundly deprived and dysfunctional upbringing and suffered from serious mental health issues – whether sentence properly reflected the total criminality of the offender's conduct – relevant factors on sentence – sentencing statistics – where reference made to "comparable cases" – where offender received second highest manslaughter sentence for single offence since relevant statistics have been recorded – where offender received highest sentence for vehicular manslaughter since relevant statistics have been recorded – where offender's sentence is broadly comparable with murder sentences where murder weapon was a motor vehicle – relevant factors on sentence –whether sentencing judge erred in concluding that offence was at the "gravest end of the spectrum" – held no error – finding not to be equated with finding that the offence was in the "worst category" of offending – offender's mental health had no bearing upon assessment of objective seriousness – whether sentencing judge erred in only allowing 5% discount for late plea of guilty – held no error – whether sentencing judge erred in application of Bugmy principles and consideration of applicant's mental illness and you – held no error – whether aggregate sentence manifestly excessive – held by a majority manifest excess established – appeal allowed – offender re-sentenced Legislation Cited: Crimes (High Risk Offenders) Act 2006 Crimes (Sentencing Procedure) Act 1999 (NSW) Crimes Act 1900 (NSW) Road Transport Act 2013 (NSW) Cases Cited: Attwater v R; Maris v R [2021] NSWCCA 17 Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 BW v R [2011] NSWCCA 176 Byrne v R; Cahill v R [2021] NSWCCA 185; (2021) 97 MVR 85 Clare v R [2008] NSWCCA 30; (2008) 181 A Crim R 45 Conte v R [2018] NSWCCA 209; (2018) 86 MVR 239 Craft v R [2021] NSWCCA 131 Crowley v R [2021] NSWCCA 45 Davidson v R [2022] NSWCCA 153; (2022) 100 MVR 336 Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 Director of Public Prosecutions (NSW) v Abdulrahman [2021] NSWCCA 114; (2021) 96 MVR 309 DS v R; DM v R [2022] NSWCCA 156 Dungay v R [2020] NSWCCA 209 Hallak v R [2014] NSWCCA 48 Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 Hoskins v R [2021] NSWCCA 169 House v The King (1936) 55 CLR 499; [1936] HCA 40 KT v The Queen (2008) 182 A Crim R 571; [2008] NSWCCA 51 Kutschera v R [2015] NSWCCA 73 Magro v R [2020] NSWCCA 25 Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 Martinez v R [2022] NSWCCA 12 Mitchell v R [2021] NSWCCA 306 Moananu v R [2022] NSWCCA 85; (2022) MVR 331 Obeid v R (2016) 96 NSWLR 155; [2017] NSWCCA 221 Paterson v R [2021] NSWCCA 273 R v Attwater; R v Maris [2017] NSWSC 1710 R v Bellchambers [2010] NSWDC 306 R v Blake Davis [2021] NSWSC 235 R v BW & SW (No 3) [2009] NSWSC 1043 R v Camilleri [2021] NSWSC 221 R v Chandler (No 2) [2017] NSWSC 1758; (2017) 84 MVR 399 R v Crabbe (1985) 156 CLR 464; [1985] HCA 22 R v DF [2022] NSWSC 762 R v JK [2012] NSWSC 710 R v Kilic (2016) 250 CLR 256; [2016] HCA 48 R v LC [2010] NSWSC 815 R v Millwood [2012] NSWCCA 2 R v Musa [2023] NSWSC 198 R v Nguyen [2013] NSWCCA 195; (2013) 234 A Crim R 324 R v Stefanato [2023] NSWSC 73 R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309 Regina v Holton [2002] NSWSC 775 Regina v LC [2010] NSWSC 815, Spark v R [2012] NSWCCA 140 Tabbah v R [2019] NSWCCA 324 Veen v the Queen (No. 2) (1988) 164 CLR 465; [1988] HCA 14 Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 Category: Principal judgment Parties: Christopher Chandler (Applicant) Crown (Respondent) Representation: Counsel: I McLachlan (Applicant) A Bonnor (Respondent) Solicitors: Aquila Lawyers (Applicant) Solicitor for Public Prosecutions (NSW) (Respondent) File Number(s): 2017/81974 Decision under appeal Court or tribunal: Supreme Court Jurisdiction: Criminal Citation: [2017] NSWSC 1758 Date of Decision: 14 December 2017 Before: Johnson J File Number(s): 2017/81974 HEADNOTE [This headnote is not to be read as part of the judgment] On 8 January 2015, while attempting to evade police, Christopher Chandler (the applicant) deliberately drove a stolen car through the fence of a suburban home and into its backyard. The car struck and killed an 18-month-old girl who was playing in the backyard with three other children. The sentencing judge found that in doing so the applicant knew that there was an appreciable risk of serious injury to persons in the backyard. At the time of the offence the applicant was 22 years of age and on bail for various unrelated charges. The applicant pleaded not guilty on charges of murder and, in the alternative, manslaughter. Subsequently, the applicant was arraigned again on a charge of manslaughter and pleaded guilty. He was sentenced at first instance to 19 years' imprisonment with a non-parole period of 13 years. The sentencing judge took into account three offences (the Form 1 offences) pursuant to s 32(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the Sentencing Act), namely: stealing a motor vehicle; driving unlicensed; and failing to stop for police and driving in a manner dangerous to others. The sentencing judge found that the applicant had experienced a dysfunctional and antisocial upbringing and suffered from mental health issues including psychotic symptoms. The applicant had a substantial criminal history including car stealing, dangerous driving and engaging in police pursuits as well breaking and entering. The sentencing judge found that the applicant's offending "is at the gravest end of the spectrum of crimes of involuntary manslaughter". To reflect the utilitarian value of the applicant's guilty plea, a discount of 5% was applied to the head sentence by the sentencing judge. The sentencing judge found that the applicant displayed a "belated acceptance of responsibility" and posed a "significant" risk of re-offending. The sentencing judge applied the principles stated in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 (Bugmy) to the circumstances of the applicant's upbringing to find that his moral culpability was somewhat "compromised". The applicant sought leave to appeal against his sentence on four grounds. The principal issues on appeal were: 1. whether the applicant's sentence was manifestly excessive (the manifest excess ground); 2. whether the sentencing judge erred in characterising the applicant's offence as the "gravest type" of manslaughter or as being "at the gravest end of the spectrum" of involuntary manslaughter (the objective seriousness ground); 3. whether the sentencing judge erred in allowing a discount of only 5% for the applicant's guilty plea (the discount ground); and 4. whether the sentencing judge erred in considering the applicant's dysfunctional and deprived upbringing, mental health issues and/or relative youth (the Bugmy ground). The Court held (Hamill and N Adams JJ, Beech-Jones CJ at CL dissenting on the manifest excess ground), granting leave to appeal against sentence, allowing the appeal on the manifest excess ground, setting aside the applicant's sentence and, in lieu, re-sentencing him to 15 years and 8 months imprisonment with a non-parole period of 10 years and 6 months: As to the manifest excess ground 1. The applicant's sentence was manifestly excessive having regard to four factors none of which alone or independently suggest error in the sentencing judge's instinctive synthesis: [99] (N Adams J); [82]–[89] (Hamill J, agreeing). a. The applicant's sentence is the second highest manslaughter sentence (for a single offence) since sentencing statistics have been recorded by the Judicial Commission of New South Wales (in the JIRS database), save for one case that was held to be in the "worst category" so as to justify the imposition of the maximum penalty: [101]–[106] (N Adams J). Davidson v R [2022] NSWCCA 153; Clare v R [2008] NSWCCA 30; (2008) 181 A Crim R 45; R v Camilleri [2021] NSWSC 221; R v DF [2022] NSWSC 762; Tabbah v R [2019] NSWCCA 324; Magro v R [2020] NSWCCA 25; Paterson v R [2021] NSWCCA 273; R v Attwater; R v Maris [2017] NSWSC 17170; R v Nguyen [2013] NSWCCA 195; (2013) 234 A Crim R 324; R v BW & SW (No 3) [2009] NSWSC 1043; Regina v LC [2010] NSWSC 815; R v Bellchambers [2010] NSWDC 306, considered. b. The applicant's sentence is the highest sentence ever imposed for a vehicular manslaughter involving one death, is higher than any indicative sentence for multiple vehicular manslaughters and is the second highest sentence when regard is had to aggregate sentences for multiple deaths: [107]–[112] (N Adams J). Davidson v R [2022] NSWCCA 153; Spark v R [2012] NSWCCA 140; Crowley v R [2021] NSWCCA 45, considered. Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194, approved. c. The applicant's sentence is broadly comparable with murder sentences imposed where the weapon was a motor vehicle: [118], [128] (N Adams J). Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14; R v Stefanato [2023] NSWSC 73; Regina v Houlton [2022] NSWSC 775; R v Musa [2023] NSWSC 198; R v JK [2012] NSWSC 710; Kutschera v R [2015] NSWCCA 73, considered. d. The sentencing judge's application of Bugmy principles discloses latent error, as it is not apparent that a commensurate reduction in moral culpability was reflected in the starting point of 20 years' imprisonment for manslaughter involving one death, in circumstances where his Honour only modified the applicant's moral culpability "to an extent" on the basis of his profoundly deprived and dysfunctional upbringing: [151] (N Adams J). R v Millwood [2012] NSWCCA 2, approved. 2. The applicant's sentence was not manifestly excessive. Notwithstanding the seriousness of the offences contained in the comparable vehicular manslaughter cases, the circumstances of the applicant's offence were significantly worse. The applicant deliberately drove through a suburban residence at high speed, whilst the offenders in the comparable cases were attempting to use a car for its intended purpose but lost control or breached road rules due to excessive speed or intoxication. Further, and contrary to the offenders in the comparable cases, the applicant drove a stolen vehicle whilst evading police and with knowledge of the appreciable risk of serious injury to innocent persons, which falls just short of the requisite mental state for murder: [77]–[78] (Beech-Jones CJ at CL, dissenting and dismissing the ground). Davidson v R [2022] NSWCCA 153; Spark v R [2012] NSWCCA 140; Crowley v R [2021] NSWCCA 45; Director of Public Prosecutions (NSW) v Abdulrahman [2021] NSWCCA 114; (2021) 96 MVR 309; Byrne v R; Cahill v R [2021] NSWCCA 185; (2021) 97 MVR 85, considered. As to the objective seriousness ground 3. The sentencing judge did not err in assessing the objective seriousness of the applicant's offence. In describing the offence as being at the "gravest end of the spectrum" of involuntary manslaughter, his Honour was purporting to place its objective seriousness within a certain range in order to make clear that it was an extremely serious offence. This did not involve a finding that the offence was "within the worst category" without attracting the maximum prescribed penalty: [46] (Beech-Jones CJ at CL); [81] (Hamill J); [90] (N Adams J). R v Kilic (2016) 250 CLR 256; [2016] HCA 48, considered. 4. The application of Bugmy principles, and acknowledgement of the applicant's mental health issues, have no bearing upon the assessment of objective seriousness. Nor does the fact that the applicant lacked the requisite mental element for murder: [48]–[49] (Beech-Jones CJ at CL); [81] (Hamill J); [90] (N Adams J). DS v R; DM v R [2022] NSWCCA 156, approved. As to the discount ground 5. The sentencing judge's assessment of a 5% discount disclosed no error in the exercise of his Honour's discretion. Deference should be afforded to an assessment of the utilitarian value of a late plea by a judge who was preparing to preside over a trial that was rendered unnecessary because of the acceptance of a late guilty plea: [55]–[56] (Beech-Jones CJ at CL); [81] (Hamill J); [90] (N Adams J). R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309; Hallak v R [2014] NSWCCA 48; Martinez v R [2022] NSWCCA 12, considered. As to the Bugmy ground 6. The sentencing judge did not err in considering the applicant's dysfunctional and deprived upbringing, mental health issues or relative youth holistically as part of his subjective case. Any attempt to separate those factors and consider them independently would have been artificial and susceptible to error. In the circumstances of the offence, and accounting for the application of the Bugmy principles, general and specific deterrence remained significant factors in the sentencing process: [63], [65] (Beech-Jones CJ at CL); [81], [87] (Hamill J); [90] (N Adams J). DS v R; DM v R [2022] NSWCCA 156; Craft v R [2021] NSWCCA 131, approved. JUDGMENT 1. BEECH-JONES CJ at CL: On the evening of 8 January 2015 while attempting to evade police, the applicant, Christopher Chandler, deliberately drove a stolen motor vehicle through the fence of a suburban home and into its backyard before driving through a public park. His vehicle struck and killed an 18-month‑old girl who was playing in the backyard with three other children. 2. These events resulted in the applicant entering a late plea of guilty to manslaughter. He received a lengthy custodial sentence. He now seeks, inter alia, leave to appeal against the sentence imposed, including on the ground that the sentence is manifestly excessive. For the reasons that follow, I would grant leave to appeal but dismiss the appeal. 3. It is important to note that this is not a case of a driver who lost control of their vehicle through speed or drug consumption and then injured or killed another person. Instead, the applicant maintained control of his vehicle, but deliberately drove it through a suburban backyard and park knowing of the appreciable risk of serious injury to innocent persons such as his victim. Background 1. On 7 April 2017, the applicant was arraigned in the Supreme Court on a charge of murdering Tateolena Tauaifaga [1] and, in the alternative, manslaughter. He pleaded not guilty to each charge. His trial was fixed to commence on 30 October 2017. An order was made that he be tried by judge alone. 2. On 20 October 2017, the applicant was arraigned again. He pleaded guilty to the offence of manslaughter which the Crown accepted in full discharge of the indictment. 3. On 14 December 2017, Johnson J sentenced the applicant to imprisonment for 19 years commencing on 12 August 2017 and expiring on 11 August 2036 with a non-parole period of 13 years commencing on 12 August 2017 and expiring on 11 August 2030 (R v Chandler (No 2) [2017] NSWSC 1758; (2017) 84 MVR 399) ("Chandler"). 4. At the applicant's request, his Honour took into account three offences included in a notice filed by the prosecutor under s 32(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (a "Form 1" and the "Sentencing Act" respectively) namely, that on 8 January 2015 he: took and drove a motor vehicle without the consent of the owner contrary to s 154A(1)(a) of the Crimes Act 1900 (NSW); drove that motor vehicle on a road having never been licensed for that purpose contrary to s 53(3) of the Road Transport Act 2013 (NSW); and, whilst driving that vehicle and knowing police officers were in pursuit, did not stop and then drove the vehicle in a manner dangerous to others contrary to s 51B(1) of the Crimes Act 1900. Extension of Time 1. Within a week of being sentenced, a Notice of Intention to Appeal was filed on behalf of the applicant. However, the notice has long since expired. The present application was not filed until 23 February 2022, being more than four years after he was sentenced. Accordingly, the applicant requires an extension of time in which to bring this application. 2. The applicant's solicitor swore an affidavit on 22 February 2022 in support of the application for an extension of time. He stated that in May 2018 he received a grant of Legal Aid to obtain an advice from Counsel as to the merit of the appeal. Counsel was briefed to advise in August 2018. However, he stated that "[o]n instructions", the obtaining of that advice was suspended pending a Coronial Inquest into the death of Tateolena. Why that occurred is not clear, although it appears that it was anticipated the inquest might yield evidence casting doubt on whether she was struck by the vehicle driven by the applicant or the pursuing police. 3. In October 2020 the applicant withdrew his instructions and did not reinstate them until "mid-2021". Counsel sought further information which was not received until December 2021. Counsel provided his advice in January 2022. 4. In one sense the affidavit "explains" the delay in the bringing of this application but it in no way justifies it. An unacceptable delay of over four years in the bringing of an appeal against sentence, especially one concerning the death of a child, has the potential to undermine public confidence in the system of criminal justice. However, given that at least some of the grounds of appeal are reasonably arguable, the length of the sentence imposed and the relative youth of the applicant, it is best that the application be dealt with on its merits. I would allow the application to extend time. The Offences 1. The sentencing judge made comprehensive findings of fact concerning the subject offences. None of those findings are the subject of challenge. The following is taken from his Honour's findings. 2. As at the date of the offending, ie, 8 January 2015, the applicant was 22 years of age. On 16 July 2014, he was granted bail by the Supreme Court on various unrelated charges, including aggravated breaking and entering with intent to commit a serious indictable offence, taking or detaining a person whilst in company with the intention of obtaining an advantage, stealing a motor vehicle and receiving stolen property. 3. From 11 December 2014, the applicant ceased complying with the reporting conditions attached to his grant of bail. In his evidence before the sentencing judge, the offender agreed that he may have stopped reporting because he was intoxicated with drugs. The sentencing judge found that the applicant had consumed "ice" on 7 January 2015 and that this contributed to him being "on edge" the following day. 4. On 7 January 2015, an Audi sedan was stolen from Kensington. Around midday the following day, police observed the vehicle parked in the vicinity of Sherwood Street, Constitution Hill. Soon after they observed it being driven by the applicant with a female, Katie Tuite, occupying the front passenger seat. The applicant then drove the vehicle to Wentworthville. The applicant parked the car. He and Ms Tuite entered a shopping centre. While they were inside, the police installed a global positioning surveillance device on the Audi vehicle. The taking and driving of the Audi vehicle was the basis for the offence under s 154A(1)(a) of the Crimes Act included on the Form 1. 5. At around 7.00 pm on 8 January 2015, the Audi vehicle was parked in Bessbrook Way, Constitution Hill. The sentencing judge described it as "a small and narrow dead-end street". The applicant had previously lived with his family nearby. The sentencing judge found that he was familiar with the area, including the house at 5 Bessbrook Way, and specifically knew that "[i]t was common, at times when the house was vacant, for people to use the backyard of 5 Bessbrook Way as a thoroughfare between Richill Park and Bessbrook Way." 6. As the Audi vehicle was stationary, police decided to apprehend the applicant. A number of police vehicles entered Bessbrook Way, including two "Toyota LandCruiser" 4WD vehicles containing members of the NSW Police Tactical Operations Unit ("TOU") along with two highway patrol vehicles. 7. The applicant saw the police vehicles approaching. He reversed the Audi vehicle out of Bessbrook Way slowly until it came into contact with the lead TOU vehicle. The sentencing judge accepted that the applicant said to Ms Tuite, "Fuck I don't want to go back to gaol" to which she replied, "I don't want to go back to gaol either". 8. The sentencing judge described the tragic events that happened next as follows: "After the Audi vehicle had come into contact with the lead TOU vehicle, the Offender accelerated forward harshly and away from the TOU vehicle and made a sharp left-hand turn across Bessbrook Way. He was heading for the fence with the intention of driving through the backyard of 5 Bessbrook Way to escape into Richill Park and beyond. He was thinking sufficiently clearly to decide to use this pathway for escape of which he was aware. The Offender accelerated the Audi up the kerb and across a dirt mound into the six-foot solid Colorbond fence that enclosed the side yard of 5 Bessbrook Way. It was not possible to see through the solid metal fence. At that point, the Audi vehicle appeared to become airborne for a couple of metres. The Offender was asked about his state of mind at this time in cross-examination at the sentencing hearing … : 'Q. You couldn't see through the Colorbond fence, could you? A. No. Q. You had no idea whether there were any adults, children, dogs, cats, you had no idea what was behind that fence? A. No, I had no idea. Q. You didn't care what was behind that fence, you just wanted to get away from the police, is that right? A. I wanted to get away from the police. Q. You didn't care what was behind that fence that night, you just wanted to get away from the police? A. I didn't know what was on the other side of that fence. Q. But you didn't care, you just wanted to get away from the police? A. I just wanted to get out of there. … Q. You didn't care what was behind that fence, isn't that right? A. Yeah.' The Audi struck the fence with sufficient force to completely dislodge the fence panels. The house at 5 Bessbrook Way was the home of Hellina Tauaifaga and Topaz Hunia and their children. At the time when the Audi vehicle crashed through the fence, four of their children were playing in the backyard. A four-year old girl was playing inside a cubby house. Six-year old twin girls were playing together. Eighteen-month old Tateolena was playing on her own near a pink and purple child's bicycle close to the fence. Tateolena was struck by the Audi vehicle which drove over her crushing her between the ground and the undercarriage of the vehicle. The two TOU vehicles followed closely behind the Audi through the backyard at speed. A third police vehicle stopped on the boundary line where the fence had previously been standing. The six-year old girls were knocked to the ground and suffered minor abrasions and cuts as a result." 1. Tateolena's mother, Hellina Tauaifaga entered the backyard. She found Tateolena lying on the ground on her back. According to the sentencing judge, "Hellina screamed out for help and police performed cardio-pulmonary resuscitation on the child until ambulance officers arrived." Tateolena was taken to Westmead Children's Hospital where she was pronounced dead at around 8.34 pm from sustained head injuries. The sentencing judge found that Tateolena's injuries were caused by her being struck by the Audi vehicle (and not any of the police vehicles). The unlawful killing of Tateolena was the basis for the manslaughter offence. 2. Meanwhile, the applicant drove the Audi vehicle across the backyard, knocking down the rear fencing which bordered Richill Park. He then drove through Richill Park where a number of people were located including children who were playing. They were forced to move quickly out of the way of the applicant's vehicle and the pursuing TOU vehicles, although the latter slowed down due to their presence. 3. The applicant drove the Audi vehicle out of Richill Park onto Lurgan Street. He collided with an unmarked police vehicle and other vehicles in the street. He continued to drive at high speed along streets in Constitution Hill before driving onto the Cumberland Highway. When he turned onto the Cumberland Highway, he avoided a marked police highway patrol vehicle and a high-speed pursuit entailed. The applicant drove the Audi vehicle at speeds of up to 130-140 km/hour in an 80 km/hr zone. He drove through several red lights. At Old Windsor Road, the applicant drove onto the wrong side of the road for approximately 800 metres. The pursuit continued onto Seven Hills Road and then Bingara Crescent at Baulkham Hills where the Audi vehicle lost the rear driver's side tyre. The police terminated the pursuit because of the risk to the public. The applicant drove the Audi vehicle back to the city and left it in Darlinghurst. He then absconded to the Central Coast. 4. The failure of the applicant to stop during the police pursuit was the basis for the offence under s 51B(1) of the Crimes Act included on the Form 1. The conduct of the applicant in driving without a licence is the basis for the other offence under s 53(3) of the Road Transport Act on the Form 1. 5. The applicant was arrested on the Central Coast on the afternoon of 14 January 2015. He declined to be interviewed. He was charged and refused bail. 6. The sentencing judge accepted that throughout the chase, Ms Tuite was screaming at the applicant. The sentencing judge described the driving of the applicant as follows: "The terrifying nature of the Offender's course of driving on major roads after leaving Richill Park is demonstrated starkly in the DVD recording taken from the following police vehicle. The recording depicts parts of the high speed chase from Ferndale Close in Constitution Hill to an area near Seven Hills Road and Marina Road at Winston Hills. It is completely clear that the Offender's course of driving on these roads placed multiple members of the public at great risk of serious harm or worse." 1. The sentencing judge noted that in his evidence at the sentencing hearing, the applicant agreed that he placed "members of the public who were in the vicinity of those roads in extreme danger" and knew that at the time. The Sentencing Judgment 1. After setting out the facts of the offences, his Honour addressed the evidence concerning the applicant's subjective case and the various sentencing factors. At this point it suffices to note the following eight matters about his Honour's findings. Except where noted, the following findings are not challenged. 2. First, his Honour carefully addressed the applicant's dysfunctional upbringing and mental health issues. The applicant was raised by and close to his mother, who died when he was 16 years old. By that time, he was abusing alcohol and drugs. His education was significantly disrupted, however he completed Year 10. He had "no appreciable period of paid employment". A forensic psychologist noted that the applicant had been exposed to "antisocial influences from an early age". It was accepted that "[h]is early formative experiences led him to believe that unemployment, uncontrolled substance use, violence and crime were a normal part of life." The applicant had also experienced psychotic symptoms in the context of heavy substance abuse, although his "present diagnosis" at the time of sentencing "include[d] major depressive disorder". 3. The degree of disadvantage experienced by the applicant was eloquently summarised by his counsel, Mr McLachlan, at the hearing of this appeal. He noted that the evidence demonstrated that the applicant first became acquainted with his father when they shared a prison cell together. 4. Second, his Honour described the applicant's "substantial criminal history". This included offences committed on 21 April 2007 when the applicant was aged 14, namely, taking and driving a vehicle without the consent of the owner and driving in a dangerous manner. The applicant stole a motor vehicle and drove at 100 km/hour while being chased by police. He committed almost identical offences on 24 April 2007 and then again on 12 May 2007. The last of these offences involved the applicant driving at high speed through a grass reserve which was adjacent to a Housing Commission estate to avoid the police. He later collided with a police car. He committed similar offences in August 2009 and November 2010. Beyond these offences, the applicant accumulated other serious convictions including several instances of aggravated breaking and entering and assault occasioning actual bodily harm. 5. In August 2012, the applicant was sentenced to a term of imprisonment for 2 years and 7 months commencing on 5 May 2011 with a non-parole period of 17 months that expired on 4 October 2012. He was arrested on 13 March 2013 for aggravated breaking and entering with intent to commit a serious indictable offence, taking and detaining a person while in company with the intention of obtaining an advantage, stealing a motor vehicle and receiving stolen property. As noted, he was released on bail for those offence on 16 July 2014. Following his conviction on those offences after a trial, the applicant was sentenced on 26 February 2016 to 11 years imprisonment commencing on 12 August 2013 with a non-parole period of 7 years and 3 months expiring on 11 November 2020. 6. Third, his Honour addressed the objective seriousness of the offences. With the offence of manslaughter, his Honour found that the applicant "realised that there was an appreciable risk of serious injury to persons in the backyard when he drove through the fence of the property", although his Honour distinguished between that state of mind and a realisation of a probable risk of really serious injury i.e. recklessness (see R v Crabbe (1985) 156 CLR 464; [1985] HCA 22). His Honour concluded: "I am well satisfied that this offence of manslaughter is at the gravest end of the spectrum of crimes of involuntary manslaughter. A little child died because the Offender chose to use the vehicle he was driving as a battering ram to enter private property to assist his escape from police in the course of a desperate and self-obsessed course of conduct on his part. He realised there was an appreciable risk of serious injury to another person when he did so." (emphasis added) 1. Later in the judgment, his Honour found that "the actions of this Offender represent[ed] unlawful and dangerous manslaughter of the gravest type". These findings are the subject of ground 1 of the appeal. His Honour described the offences of taking the Audi vehicle and driving without a licence as "serious", and the offence of driving dangerously during a police pursuit as "especially grave". 2. Fourth, his Honour addressed the various aggravating and mitigating factors in s 21A(2) and s 21A(3) of the Sentencing Act. His Honour noted that the manslaughter offence was committed in the home of the victim (s 21A(2)(eb)), in the presence of Tateolena's three siblings who were well under the age of 18 (s 21A(2)(ea)) and while on bail (s 21A(2)(j)). His Honour accepted that the offence was not part of a planned or organised criminal activity (s 21A(3)(b)). 3. Fifth, his Honour allowed for a discount of 5% for the applicant's plea of guilty. This is the subject of complaint by ground 2 of the appeal. 4. Sixth, his Honour found that the applicant had displayed a "belated acceptance of responsibility" for his conduct and that his risk of reoffending was "significant". His Honour accepted that the applicant's conditions of custody were more restrictive as a result of being a "target of violence and retaliation". His Honour addressed the effect of the applicant's "dysfunctional background" on the sentencing process through an application of the principles stated in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 ("Bugmy"). His Honour found that the applicant's moral culpability was "compromised". His Honour's approach to applying Bugmy is the subject of ground 3 of the appeal. 5. Seventh, in accordance with (former) s 28(4) of the Sentencing Act, his Honour took into account the contents of victim impact statements from Tateolena's parents. His Honour noted that the "terror of Tateolena's mother at finding her little daughter injured fatally was accompanied by the horror of the children in the backyard who witnessed the terrifying events which constituted this crime" and that "the family has suffered as a whole as a result of this offence and the loss and grief which they are experiencing will be permanent." His Honour found that the applicant's crime had caused "substantial harm to the community" (Sentencing Act, s 21A(2)(g)). 6. Eighth, having regard to the effect of the accumulation of the sentence for these offences upon the sentence for the offences noted above at [31], his Honour made a finding of special circumstances for the purposes of s 44(2) of the Sentencing Act. Ground 1: Objective Seriousness of Manslaughter 1. Ground 1 of the notice of appeal contends as follows: "In considering the objective seriousness of the manslaughter count, his Honour erred in characterising the offence as: (a) being 'at the gravest end of the spectrum' of involuntary manslaughter; and/or (b) representing unlawful and dangerous manslaughter 'of the gravest type'." 1. The findings referable to this ground of appeal are set out above. No point was taken that one finding refers to "involuntary manslaughter" and another to "unlawful and dangerous manslaughter". The agreed statement of facts provided to the sentencing judge specified that the applicant's plea to manslaughter was on the basis that his driving was an unlawful and dangerous act. 2. The submissions in support of this ground contend that the above findings by his Honour reveal error on the part of the sentencing judge for two, possibly related, reasons. First, it is contended that these findings were not relevantly different to a finding that an offence is "within the worst category" which was addressed in R v Kilic (2016) 250 CLR 256; [2016] HCA 48 ("Kilic"). Second, the submissions contend that the nature and circumstances of the manslaughter offence were not so serious as to justify his Honour's characterisation. 3. In Kilic, at first instance the offender received a lengthy, but not the maximum, sentence for dousing his pregnant partner with petrol and setting her alight. She suffered extensive burns that caused her to lose her baby and required ongoing medical and mental health care. On appeal, the Victorian Court of Appeal described the offence as being within the "worst category" for offences of its type but nevertheless concluded that the sentence imposed was manifestly excessive having regard to sentences imposed in other serious cases of that kind. The High Court found that the Court of Appeal erred in "impermissibly treat[ing] the sentences imposed in those few [other cases] as defining the sentencing range and, on that basis, conclud[ing] that, because the sentence imposed in [the instant] case exceeded the sentences imposed in all but one of the cases referred to, the sentence was beyond the range of available sentences" (at [24]). 4. Their Honours also commented on the Court of Appeal's statement that the offence fell "within the worst category" (at [18] to [19]): "What is meant by an offence falling within the 'worst category' of the offence is that it is an instance of the offence which is so grave that it warrants the imposition of the maximum prescribed penalty for that offence. Both the nature of the crime and the circumstances of the criminal are considered in determining whether the case is of the worst type. Once it is recognised that an offence falls within the 'worst category', it is beside the point that it may be possible to conceive of an even worse instance of the offence. Thus, an offence may be assessed as so grave as to warrant the maximum prescribed penalty notwithstanding that it is possible to imagine an even worse instance of the offence. Where, however, an offence, although a grave instance of the offence, is not so grave as to warrant the imposition of the maximum prescribed penalty − as the offending was agreed to be here − a sentencing judge is bound to consider where the facts of the particular offence and offender lie on the 'spectrum' that extends from the least serious instances of the offence to the worst category, properly so called. It is potentially confusing, therefore, and likely to lead to error to describe an offence which does not warrant the maximum prescribed penalty as being 'within the worst category'. It is a practice which should be avoided." (emphasis added) 1. Kilic did not hold that it was an error per se for the Court of Appeal to describe an offence that did not warrant the maximum penalty as being in the "worst category". Instead, their Honours observed that it was "potentially confusing" and "likely to lead to error" to do so (at [19]; emphasis added). Further, the emphasised passage above makes it clear that an assessment of whether a case is in the "worst category" so as to warrant the imposition of the maximum sentence is different to an assessment of the objective seriousness of an offence. Consistent with Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 ("Markarian"), Kilic confirms that a conclusion that the maximum sentence should be imposed does not follow from simply assessing the objective circumstances of the offence. Instead, absent statutory indication to the contrary, there must be a consideration of all the sentencing facts and factors, including "the circumstances of the criminal" (at [18]). 2. Further, for the sake of completeness, I note that the reference in the above passage from Kilic (at [19]) to a sentencing judge being "bound to consider where the facts of the particular offence and offender lie on the 'spectrum' that extends from the least serious instances of the offence to the worst category" is not a reference to making an assessment of the objective seriousness of an offence much less mandating that be done by reference to a range. Instead, that statement encapsulates the necessity, consistent with Markarian, to consider the relative seriousness of all the facts and factors relevant to sentencing including the "facts of the … offender" and the maximum penalty for the offence (which is appropriate for the worst category of cases). 3. The premise of the appellant's first contention is that the sentencing judge's reference to the manslaughter offence being at the "gravest end of the spectrum" is not materially different to the Court of Appeal's description of the offence in Kilic being "in the worst category". I do not accept that premise. His Honour's description of the offence as being at the "gravest end of the spectrum" is found in that part of the judgment that is headed "Objective Gravity of the Offences". As the Crown submitted, his Honour's finding was clearly an assessment that the objective gravity of the offence was extremely serious and fell in, or at least towards, the "high range". Unlike the concern expressed in the above passage from Kilic, His Honour was clearly not purporting to record a finding that incorporated all the "circumstances of the criminal". 4. The effect of the second submission made by the applicant in relation to this ground is to attack the sentencing judge's assessment of the objective seriousness of the manslaughter offence. In Paterson v R [2021] NSWCCA 273 at [33], I noted that it is not obligatory to undertake an assessment of where the objective seriousness of a particular crime of manslaughter is to be placed on a hypothetical range of manslaughters or types of manslaughters. I also expressed doubt about the utility of doing so given the range of circumstances that can give rise to criminal liability of manslaughter. That said, it is not necessarily an error to do so. To the extent that his Honour's reference to the offence being at the "gravest end of the spectrum" did involve the placement of the objective seriousness of this offence on some range, then his Honour did not err. 5. One of the applicant's contentions is that his Honour's assessment that the applicant's moral culpability was reduced (or "compromised") on account of the application of Bugmy necessarily affected the assessment of the objective seriousness of the offence as the "gravest type". This proposition was rejected by this Court in DS v R; DM v R [2022] NSWCCA 156 ("DS"). The submissions also contend that the findings that the applicant was affected by mental illness warranted a reduction in the assessment of the objective seriousness of the offending. The findings concerning the form and extent of his mental illness do not come close to having any bearing on the assessment of objective seriousness of the applicant's offence (see DS at [94] to [96]). 6. The remainder of the applicant's written submissions challenging the sentencing judge's assessment of objective seriousness points to the fact that his Honour found that the applicant only realised there was an "appreciable" risk of serious injury, as opposed to a probable risk, when he drove through the fence, and the unplanned nature of his actions. With the former, the applicant accepted that a finding that he was aware of the probability of such harm would correspond to the mental state for murder. A failure to make a finding that the applicant did not have the mental state of murder has no bearing on the objective seriousness of his crime of manslaughter. With the latter, the applicant's conduct in driving through the fence may have been "unplanned" in the sense that he did not form the intention of doing so until he realised it was the only escape. However, in the circumstances, that was barely a mitigating circumstance. The applicant stole the car and chose to escape the police when he was effectively trapped. He did so knowing of the risk to others. 7. I would reject ground 1 of the appeal. Ground 2: Discount for the Plea 1. Ground 2 of the appeal contends that his Honour erred in only allowing a discount of 5% for the applicant's plea of guilty. 2. The timing of the applicant's plea of guilty is described above. The proceedings at first instance predate the insertion of Division 1A of Part 3 into the Sentencing Act. The sentencing judge rejected a submission that the timing of the plea was justified by the late service of an expert report by the Crown which demonstrated that it was the applicant's vehicle which fatally struck Tateolena. His Honour noted that the applicant's culpability for manslaughter was not dependent on "which vehicle struck the child". His Honour concluded that the "utilitarian value of the Offender's very late plea of guilty to manslaughter [was] limited". 3. One of the guidelines enunciated by Spigelman CJ in R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309 at [160] ("Thomson") was that "[t]he utilitarian value of a plea to the criminal justice system should generally be assessed in the range of 10-25 per cent discount on sentence", with the "primary consideration determining where in the range a particular case should fall, [being] the timing of the plea" (emphasis added). Earlier his Honour noted that a "discount towards the bottom of the range is appropriate for late pleas, for example, on the date fixed for trial" (at [155]), although "[i]n some cases no discount is appropriate at all" (at [156]). That said, these observations are only "a guideline … [and] create no presumption nor entitlement to a particular discount to reflect the utilitarian value of an offender's plea of guilty" (Hallak v R [2014] NSWCCA 48 at [22]; "Hallak"). The determination of the level of discount to be afforded remains a matter for the sentencing judge's discretion (Hallak at [17]; Thomson at [10] and [72]). 4. In Hallak, this Court did not interfere with a discount of 5% which was applied when the offender pleaded guilty on the day the trial was due to commence (at [2] to [3]). The same conclusion was reached in Martinez v R [2022] NSWCCA 12 ("Martinez"), where this Court rejected a contention that a sentencing judge erred in only affording a discount of 5% to an offender who offered to plead guilty to manslaughter shortly prior to a retrial where he was found guilty of that offence. In Martinez, I observed that (at [71]): "The various cases … illustrate that the discount usually afforded to a plea offer of the kind made here on the day before the trial commences, is 10%. However, they do not demonstrate that affording a discount of 5% was somehow erroneous either as a matter of principle, unreasonable, unjust or otherwise "not open". It is an especially difficult task for this Court to second guess the assessment of the lost utilitarian value of a plea offer made by the judge who actually conducted the trial." 1. The observation in the last part of this passage, namely that a degree of deference should be afforded to a sentencing judge's assessment of the potential utilitarian value of a plea that was not accepted by the Crown, is equally applicable to sentencing judges preparing to preside over a trial that is rendered unnecessary because a late plea is accepted. Otherwise I note that in Martinez, an attack on the reasoning of the sentencing judge in only allowing a 5% discount because the applicant did not offer to plead guilty in front of the jury was upheld (at [72] to [75]), however that has no relevance to this case. 2. The applicant pointed to the observations of Spigelman CJ in Thomson and the (muted) findings that the sentencing judge made about the applicant's remorse justifying a discount greater than 5%. However, the present inquiry involves a search for an error of the kind stated in House v The King (1936) 55 CLR 499; [1936] HCA 40 at 504 to 505. No such error is articulated or apparent. His Honour's assessment was well open. 3. I would reject ground 2. Ground 3: Bugmy, Mental Illness and Youth 1. Ground 3 of the notice of appeal provides: "His Honour erred in failing to give any weight, or any proper weight, to: (a) the principles in Bugmy; (b) the applicant's mental illness; and/or (c) the applicant's youth." 1. To address these contentions, it is necessary to restate certain aspects of the sentencing judgment and decribe its structure. In a section of the judgment entitled "The Offender's Dysfunctional Upbringing", the sentencing judge discussed the applicant's upbringing, education and mental health in detail. In relation to the latter, his Honour noted that the applicant "has been diagnosed at different times with ADHD, schizophrenia, bipolar disorder, schizoaffective disorder and drug-induced psychosis" and that his "present diagnosis …. includes major depressive disorder and antisocial personality disorder". In the same part of the judgment, his Honour referred to the applicant's age and personal circumstances. 2. Later in the sentencing judgment, his Honour discussed the significance of these matters to the sentencing process as follows: "I accept that the Offender's moral culpability is modified to an extent by application of the principles in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37; Ohanian v R [2017] NSWCCA 268. The Offender has a dysfunctional background which has operated to a degree to compromise his capacity to mature and learn from experience. It is necessary to have regard to these considerations in undertaking the sentencing process in this case. At the same time, it is necessary to keep in mind the need for protection of the public in imposing sentence: Bugmy v The Queen at 595 [44]. Where the Offender has starkly exposed many members of the public to the risk of harm and one person to the reality of death, then these considerations are pertinent as well in the process of instinctive synthesis. ... The Offender's bleak history was summarised (accurately) by [his psychologist] Mr Sheehan in the following way: 'His background is of extreme deprivation and disadvantage in childhood, undermining his ability for suitable personality formation, emotional-regulation, stable attachment and socialisation. Severe behavioural disturbance emerged in childhood and despite external (medication and counselling) intervention, his domestic milieu was so damaging that his adjustment only worsened into adolescence, further aggravated by polysubstance use disorder and then the sudden loss of his mother when aged 16 years. He has engaged in a nihilistic lifestyle involving criminality in adolescence and early adulthood, with no understanding of how to go about navigating community life in a positive way, learning to manage his own unstable affect with substance use. In this way he has followed the sad example set for him in his childhood environment. He acknowledges the index offence in a way that suggests that he appreciates the terrible gravity of the loss, but is at this stage unable to withstand the psychological burden.' … At the same time, the Court is required to take into account the Offender's dysfunctional upbringing and compromised moral culpability on issues including personal and general deterrence, whilst at the same time keeping in mind the powerful need for protection of the community. ... I have regard, as well, to the need for personal and general deterrence to be reflected in the sentence. Some modification is required in this respect by operation of the principles in Bugmy v The Queen." 1. In relation to ground 3(a), the applicant's written submissions conceded that the sentencing judge was "acutely aware of the applicant's deprived upbringing" and that his Honour referred extensively to Bugmy. However, the applicant submitted that: "Yet, notwithstanding the clearly-stated need to take into account a reduction in the applicant's moral culpability, his Honour has ultimately found that the offending fell at the 'gravest end' in terms of the level of objective seriousness and that the appropriate sentence point was 20 years' imprisonment." 1. The submisson in relation to ground 3(b) was to the same effect although it concerned his Honour's findings about the applicant's mental health. 2. To the extent that these submissions refer to the sentencing judge's finding of objective seriousness then, for the reasons already stated, the reduction of the applicant's moral culpability by reason of the application of the Bugmy principles is irrelevant. Otherwise, the submission effectively contends that, bearing in mind the degree of social disadvantage to which the applicant was subject, the sentence was manifestly excessive. I address the contention that the sentence was manifestly excessive below. At this point it suffices to state that the only matter in the applicant's favour was his social disadvantage (and his mental illness and youth). All the other aspects of the applicant's subjective case did not assist him. The applicant's criminal record, especially so far as offences involving dangerous driving were concerned, was appalling. Given that and the circumstances of the manslaughter offence, it follows that general and specific deterrence were significant factors in the sentencing process, even if their full application were reduced on account of the applicant's background of social dysfunction. 3. In relation to ground 3(c), the applicant's submissions noted that submissions were made to the sentencing judge about the applicant's "relative youth" and the principles applicable to sentencing young offenders, which were identified in cases such as KT v The Queen (2008) 182 A Crim R 571; [2008] NSWCCA 51 at [22] to [24]. Those principles include alleviating the full application of general and specific deterrence in recognition of an offender's psychological immaturity. The applicant submitted that the "absence of any references to the issue of 'youth' (detailed or otherwise) in an otherwise lengthy judgment reflects the fact that his Honour failed to give this issue [ie youth] any weight in his sentencing considerations". 4. This submission, however, ignores the interrelationship between the applicant's age, mental health and dysfunctional upbringing. As the above passages demonstrate, his Honour (correctly) considered them together and had regard to their overall effect on the relevant sentencing factors. The applicant's poor mental health was either an aspect, or result, of his dysfunctional upbringing. Moreover, in this case, the various considerations relevant to sentencing that might follow from any separate consideration of an offender's relative youth were subsumed in his Honour's acceptance and consideration of the applicant's dysfunctional upbringing and its effect. On the sentencing judge's approach, the applicant was not just an offender who had a dysfunctional upbringing, but a young offender who had a dysfunctional upbringing. It would have been artificial to attempt to divide the dysfunctional or vulnerable aspects of the applicant's condition, namely his disadvantaged background, his poor mental health and his relative youth, and then attempt to separately assess their impact on his moral culpability and the various sentencing factors (DS at [155] to [156]; see also Craft v R [2021] NSWCCA 131 at [50] to [52]). 5. I would reject ground 3. Ground 4: Manifest Excess 1. Ground 4 contends that the sentence imposed by his Honour was manifestly excessive. 2. Appellate intervention on the ground that a sentence is manifestly excessive or manifestly inadequate "is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases" (Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [58]) ("Wong"). Instead, it is only warranted "where the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons" (Wong at [58]). 3. In support of this ground the applicant relied on submissions made in relation to grounds 1 to 3. The applicant placed particular emphasis on his dysfunctional upbringing, mental health issue and relative youth. The applicant noted the various findings of the sentencing judge, including that his Honour accepted the applicant had "some insight" into the enormity of his crime and that he "accepted responsibility" for his crime. The applicant also pointed to the overall length of time the applicant would serve in custody, being an effective sentence of 23 years imprisonment from 12 August 2013 with an effective non-parole period of 17 years. The Crown's submissions pointed to the appalling circumstances of the manslaughter offence including its aggravating factors, the Form 1 offences, the lateness of the plea and the applicant's poor criminal record. 4. Both parties undertook an analysis of what were said to be comparative cases of manslaughter involving the use of a motor vehicle that were contended to either demonstrate, or negate, the proposition that the sentence in this case was manifestly excessive. Most, if not all, of the potentially relevant decisions concerning vehicular manslaughters were reviewed by N Adams J in Davidson v R [2022] NSWCCA 153 at [246] ("Davidson"). I will not repeat that analysis, but simply note some of the cases referred to that involved a relatively high level of objective seriousness. 5. In Spark v R [2012] NSWCCA 140 ("Spark"), this Court dismissed an appeal against a sentence for two counts of manslaughter said to be manifestly excessive. The offender was driving while experiencing withdrawal from methylamphetamine and amphetamines. He had never held a driver's licence and was on parole for car theft. He engaged in a lengthy police pursuit, driving erratically and at high speed. He eventually crossed to the opposite side of the road and collided with an oncoming car, killing the driver and her 18-year-old daughter (at [15] to [16]). The offender was aged 23. He had a lengthy criminal record (at [25]). The sentencing judge declined to find that he had good prospects of rehabilitation (at [30]). Prior to any discount for his pleas of guilty, the offender received head sentences of 16 years and 8 months imprisonment and 18 years imprisonment respectively. 6. In Crowley v R [2021] NSWCCA 45 ("Crowley"), the offender was convicted of one count of manslaughter, two counts of causing bodily harm by misconduct in charge of a motor vehicle (as Form 1 offences) and three counts of aggravated dangerous driving occasioning grievous bodily harm. The offender was the subject of a police pursuit but evaded the police. He drove on the wrong side of the road at speed and "sideswiped" two motor vehicles before colliding "head on" with another vehicle that had four passengers, one of whom died and the rest of whom suffered a "wide range of serious injuries" (at [20]). The offender had a criminal record which disentitled him to leniency, but he was otherwise of good character (at [46]). He was found to be remorseful, have good prospects of rehabilitation and unlikely to re-offend (at [50]). The offender received an aggregate sentence of 14 years and 3 months imprisonment with a non-parole period of 10 years. His undiscounted indicative sentence for manslaughter was 14 years and 8 months imprisonment. This Court did not accept that the aggregate sentence was manifestly excessive, noting that it involved "considerable notional concurrency" (at [107]). 7. In Director of Public Prosecutions (NSW) v Abdulrahman [2021] NSWCCA 114; (2021) 96 MVR 309 ("Abdulrahman"), this Court allowed a Crown appeal in respect of an offender who pleaded guilty to manslaughter after killing a 12-year-old boy when he was driving under the influence of drugs, which included methylamphetamine (at [2] to [3], [22]). The offender drove through a red light while travelling at around 65 km/hour and struck the victim who was half-way across a pedestrian crossing (at [15]). The offender then mounted a curb after he lost control of his car (at [16]). The offender was 36 years old, unlicensed and subject to an Intensive Correction Order for driving under the influence of drugs and resisting police (at [11]). He had previously served custodial sentences for firearms and drug offences as well as accessory after the fact to manslaughter (at [25]). Prior to any discount for his plea of guilty, this Court indicated a sentence of 13 years and 6 months imprisonment for manslaughter (at [65]). 8. In Byrne v R; Cahill v R [2021] NSWCCA 185; (2021) 97 MVR 85 ("Byrne"), two offenders each pleaded guilty to one count of manslaughter. The offenders engaged in a street race in a built‑up area of Wagga Wagga. At one point their speed reached 143 km/hour (at [31]). The speed limit was 50 km/hour (at [117]). One of the vehicles collided with the deceased's car while the deceased was undertaking a "U-turn" (at [26]). Both offenders were young (at [48]), had reasonable work histories (at [52] and [62]) and were remorseful (at [61]). Overall, they had "strong subjective case[s]" (at [78]). At first instance, both offenders received a term of imprisonment of 14 years prior to any discount for their pleas of guilty. This Court rejected a contention that the sentences were manifestly excessive, although it was found they were "on the heavier side of the range available" (at [123] per Rothman J with whom Bell CJ and Button J agreed, at [1] and [127] respectively). 9. Most recently, in Davidson, a majority of this Court (Brereton JA and N Adams J; Adamson J dissenting) upheld an appeal against an aggregate sentence of 28 years imprisonment with a non-parole period of 21 years imprisonment for four counts of manslaughter, one count of aggravated dangerous driving occasioning grievous bodily harm and two counts of causing bodily harm by misconduct in charge of a motor vehicle (at [3]). While affected by drugs and alcohol, the applicant drove for a distance in excess of 5km in a menacing manner, at high speed and on the wrong side the road (at [2]). He lost control of the vehicle and collided with seven children who were walking on the footpath (at [1]). Four children were killed and three others were injured. The offender was 29 years of age and of prior good character (at [3]). He was remorseful and had good prospects of rehabilitation (at [13] and [160]). There were three judgments of this Court proposing three different sentences, but the dispositive orders were those proposed by N Adams J. Prior to the allowance for any discount for the offender's plea of guilty, the (dispositive) indicative sentence for each of the manslaughter counts was 14 years imprisonment. 10. In this case, the undiscounted sentence of 20 years imprisonment is higher than the undiscounted sentences for manslaughter imposed or indicated in Spark, Crowley, Abdulrahman, Byrne and Davidson. However, at one level that simply highlights the limits of using comparable cases when considering a complaint that a sentence for manslaughter is manifestly excessive. The parties selected the above cases by reference to the common factual feature that all involved the use of a motor vehicle, rather than, say, manslaughter by gross negligence or an unlawful and dangerous act. If cases were selected by the latter criteria, then the focus of the analysis might be on the degree of negligence or heinousness of the unlawful act. 11. The overreliance on cases involving grossly negligent driving is of significance to this application. Notwithstanding the seriousness of offending in Spark, Crowley, Abdulrahman, Byrne and Davidson, the circumstances of the individual count of manslaughter in this case were significantly worse. At least in Spark, Crowley, Abdulrahman, Byrne and Davidson, the relevant offender was attempting to use a motor vehicle for its designated purpose of driving on a road even though, at some stage through a combination of excessive speed along with drug and alcohol consumption, the offender either lost control of the vehicle or drove on the wrong side of the road. However, in this case, the applicant deliberately drove a motor vehicle at high speed through a suburban residence. The sentencing judge's analysis of other driving cases was to similar effect. 12. The difference between this case and those involving drivers who lost control of their vehicles is reflected in the finding about the applicant's mental state noted above at [32], being a mental state that falls just short of that which constitutes murder. No such finding was made in Spark, Crowley, Abdulrahman, Byrne or Davidson. In this case, the applicant did not lose control of his motor vehicle. Instead, he drove the motor vehicle exactly where he wanted it to go and did so knowing of the appreciable risk to innocent bystanders such as Tateolena. The fact that he was driving a stolen vehicle and evading the police only makes his crime worse. His subjective case was complex in that it pushed various sentencing factors in different directions. However, in the end result it was of little assistance to him. Overall, I am not satisfied that the sentence imposed was manifestly excessive. 13. I would reject ground 4. Proposed Orders 1. I propose the following orders: (1) Extend the time in which the applicant may apply for leave to appeal against sentence up to and including 23 February 2022; (2) Grant leave to appeal against sentence; and (3) Appeal dismissed. 1. HAMILL J: I have read the draft reasons of Beech-Jones CJ at CL and those of N Adams J. I am grateful to their Honours for their comprehensive analysis of the facts and circumstances giving rise to this difficult and troubling application. With some hesitation, I agree that grounds 1, 2 and 3 are not established given the thorough reasons of the sentencing Judge. As to ground 4 and the ultimate disposition of the application, I agree with the orders proposed by N Adams J and with her Honour's reasons for favouring those orders. I would only add the following brief observations, none of which is inconsistent with what her Honour has written. 2. Like N Adams J, I recently undertook a thorough review of sentences imposed in cases that fall within the high range of objective seriousness for this kind of offending: Moananu v R [2022] NSWCCA 85; (2022) 99 MVR 331 at [140]-[161]; see also the analysis undertaken by Leeming JA at [11]-[27]. I have re-visited the so-called comparable cases, understanding the limitations of such a review and with the benefit of the analyses undertaken by each of the Judges who sat on the appeal in Davidson v R [2022] NSWCCA 153; (2022) 100 MVR 336 and those of my colleagues in the present application. 3. This review and re-consideration of the sentencing patterns disclosed in previous cases leaves me in no doubt of the correctness of the conclusion reached by N Adams J: the sentence imposed on Mr Chandler is manifestly excessive. That conclusion is consistent with my intuitive response to the sentence bearing in mind the grave objective criminality and the applicant's individual circumstances. 4. I reach that conclusion giving full allowance to the broad discretion entrusted in a sentencing Judge, the requirement that a ground of appeal framed in the terms of Ground 4 requires a conclusion that the sentence under review is plainly wrong or unjust, and the important caveat that this Court cannot intervene merely because its members may have "taken a different course" in exercising the sentencing discretion: House v The King (1936) 55 CLR 499 at 505; [1936] HCA 40. 5. In agreeing with the conclusion reached by N Adams J, I have kept in mind the appalling and reckless conduct involved in the offence and its tragic consequences: cf the observations of Leeming JA in Moananu v R at [30]. I have not lost sight of the maximum penalty and the purposes of punishment in s 3A of the Crimes (Sentencing Procedure) Act 1999. I am also conscious of the degree of concurrence between the sentence under review and an existing sentence. 6. Like N Adams J, in reaching the conclusion that the sentence falls substantially outside the appropriate sentencing range for this individual offender, I am influenced by the impact of the applicant's dysfunctional upbringing on a proper assessment of his moral culpability. The draft reasons of N Adams J demonstrate that this was a case of extraordinary deprivation and neglect and I agree that the words of Simpson J (as her Honour then was) in R v Millwood [2012] NSWCCA 2 at [69] resonate in the applicant's case. 7. So powerful is the evidence of the applicant's deprived upbringing and its impact on his lifestyle and criminal conduct, my initial response was that ground 3 (reproduced by Beech-Jones CJ at CL at [58]) should be upheld. However, I am persuaded by the draft reasons of both the Chief Judge and N Adams J that the sentencing Judge correctly articulated the relevant principles and that no "patent" legal error is disclosed. However, like N Adams J, I am driven to the conclusion that the sentence imposed does not reflect the proper application of those important sentencing principles. As Beech-Jones J (as his Honour then was) said in Hoskins v R [2021] NSWCCA 169: "Complaints made to this Court about an alleged failure by a sentencing judge to apply the principles stated in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 must be considered in the context of the necessity for an applicant for leave to appeal against sentence to establish an error of the kind stated in House v R (1936) 55 CLR 499 at 504 to 505. Thus, it is not sufficient to simply say that insufficient weight was given to an applicant's social disadvantage unless that demonstrates or supports the contention that the sentence was manifestly excessive. Otherwise, any attempt to invoke Bugmy principles must be based on evidence." 1. In Mitchell v R [2021] NSWCCA 306 Dhanji J adopted the same approach at [50]: "However, insofar as there was a 'watering down' of Bugmy principles such that they were not given sufficient weight, consistent with the sole ground of appeal, the only way of determining this is by determining the question of manifest excess: see Hoskins v R [2021] NSWCCA 169 at [79] per Beech-Jones J (as his Honour then was)." 1. The evidence invoking "Bugmy principles" in this case was compelling and is summarised in some detail by N Adams J. Whether or not the failure to give proper effect to that evidence, and to the attendant principles, caused the sentencing discretion to miscarry is uncertain because the sentencing judgment contains no legal error or omission. It is one possible explanation. Even so, while "the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred": House v The King at 505. 2. N ADAMS J: I have had the significant advantage of reading the judgment of Beech-Jones CJ at CL J in draft. I agree with his Honour that grounds 1-3 should be dismissed for the reasons provided. 3. As for ground 4, after considering the competing submissions and the evidence upon which they were based, I have arrived at a different conclusion to his Honour on the question of whether the sentence imposed was manifestly excessive. I adopt his Honour's summary of the relevant evidence, findings of the sentencing judge and arguments in this court. My reasons for arriving at a different conclusion assume familiarity with the background set out in his Honour's judgment. 4. The starting point is that the applicant's actions constitute a very serious manslaughter. At the time of the fatal driving in this matter, the applicant was: driving a stolen vehicle; attempting to evade police; on Supreme Court bail for serious offences; an unlicenced driver; and under the influence of "ice". The sentencing judge made a finding that at the time the applicant deliberately drove through the fence and into the backyard of the deceased's suburban home, he knew there was an appreciable risk of serious injury to innocent persons such as his 18-month-old victim. 5. After his vehicle inflicted the fatal injuries on the deceased, the applicant drove off at speeds of up to 130-140 km/hr in an 80 km/hr zone, through several red lights, and onto the wrong side of the road for approximately 800 metres. The police chase had to be terminated because of the risk to the public. 6. At the time of the commission of this offence (and the three offences placed on a Form 1), the applicant had a substantial criminal history for a variety of offences. Significantly, he had previously been involved in dangerous police chases. By the time he came to be sentenced on the present matter, he was serving a sentence of 11 years (with a non parole period of 7 years and 3 months) imposed for the charges he was on Supreme Court bail for at the time of the commission of this offence. There was concurrence (of about three years) between that sentence and the one imposed by Johnson J. The sentencing judge was satisfied that the applicant's risk of re-offending was significant. 7. There can be no doubt that a stern sentence was warranted in the circumstances, but the question is whether the sentence imposed on the applicant goes beyond being stern such as to suggest that the sentencing discretion miscarried in some way. 8. The correct approach to a ground asserting manifest excess is well settled. The applicant must establish that the aggregate sentence imposed is "unreasonable or plainly unjust". Although such a determination involves a degree of intuition and evaluative judgment (see Conte v R [2018] NSWCCA 209; (2018) 86 MVR 239 at [9]); the assessment obviously requires more than that: Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 ("Hili") at [60] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ. The relevant principles derived from numerous High Court decisions have been frequently summarised by this court, including in Obeid v R (2016) 96 NSWLR 155; [2017] NSWCCA 221 at [443] by R A Hulme J, with whom Bathurst CJ, Leeming JA, Hamill J and I agreed. Any assessment of such a ground must be made in the context that there is no single correct sentence and judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle. Significantly, as Bell P (as his Honour then was) observed in Byrne v R; Cahill v R [2021] NSWCCA 185; (2021) 97 MVR 85 at [1]: "… A sentence will not be disturbed for the simple reason that members of the Court of Criminal Appeal may have taken a more lenient or harsh view of the matter, were they conducting the sentencing hearing, than the sentencing judge. Something more must be shown that warrants appellate interference with the sentencing judge's discretion, as the famous decision in House v The King (1936) 55 CLR 499; [1936] HCA 40 makes plain." 1. In determining whether the applicant's sentence is manifestly excessive, the starting point is the maximum penalty of 25 years imprisonment: s 24 of the Crimes Act 1900 (NSW). No standard non parole period is prescribed for manslaughter in the table behind s 54D of the Crimes (Sentencing Procedure) Act 1999 (NSW) ("the Sentencing Act"). That is understandable: the offence of manslaughter produces the greatest variety of circumstances affecting culpability of any criminal offence. It follows that a wide range of sentences can be imposed. 2. My instinctive response to the applicant's sentence, having regard to the relevant facts and objective and subjective factors, is that a starting point of 20 years' imprisonment more closely resembles a murder sentence than a manslaughter sentence on these facts. But in circumstances where there is no standard non parole period for manslaughter and it is accepted that the offence captures such a broad range of conduct, the task of articulating why a sentence is manifestly excessive can be a difficult one. 3. As Beech-Jones CJ at CL has observed at [70], I had occasion to consider the more serious vehicular manslaughter cases, including the applicant's sentence, in Davidson v R [2022] NSWCCA 153. I have also more recently considered a Crown appeal against inadequacy for an aggregate sentence imposed for multiple offences including two vehicular manslaughters in R v Cook [2023] NSWCCA 9. I am satisfied that when considering whether a sentence (or aggregate sentence) is manifestly excessive, there is utility in looking at what are said to be "comparable" cases. I do not propose to set those cases out again here: they are summarised at [246]-[274] of Davidson v R. I have considered those "comparable" decisions (which show that no two cases could ever be said to be truly comparable) as well as other aspects of the applicant's objective and subjective case. Ultimately, I consider that there are four aspects of this case which, in combination, lead to the conclusion that the sentence imposed is manifestly excessive. 1. This is the second highest manslaughter sentence (for one offence) imposed since JIRS statistics have been kept; apart from one case that was considered to be in the "worst category" justifying the imposition of the maximum penalty (Clare v R [2008] NSWCCA 30; (2008) 181 A Crim R 45); 2. This sentence is the highest sentence ever imposed for a vehicular manslaughter involving one death, is higher than any indicative sentence for multiple vehicular manslaughters and is the second highest when regard is had to aggregate sentences for multiple deaths; 3. The sentence is broadly comparable with murder sentences imposed when the weapon used for the murder was a motor vehicle; and 4. The sentencing judge's finding of a causal connection between the applicant's profoundly deprived background and the nature of his offending does not seem to be reflected in a starting point of 20 years' imprisonment for manslaughter involving one death. 1. I will deal with these four factors in turn. Other manslaughter sentences 1. In Davidson v R my examination of other manslaughter cases revealed that only one manslaughter case since JIRS statistics has been held to be in the worst category such as to warrant the maximum penalty: Clare v R. I have recounted the details of that case in [275]-[276] of Davidson v R and do not consider it necessary to repeat it here. There can be no doubt that it was significantly worse than the present case and warranted a finding of "worst category". 2. Although the Crown submitted in the present case that the applicant's offence lay "within the worst category of the crime of manslaughter" the sentencing judge did not ultimately so find. Rather, his Honour found (at [96]) that he was "well satisfied that this offence of manslaughter is at the gravest end of the spectrum of crimes of involuntary manslaughter". Accordingly, any comparison must exclude those (rare) cases where the maximum penalty was imposed because the offence was found to be in the "worst category": R v Kilic (2016) 250 CLR 256; [2016] HCA 48. 3. Turning to manslaughter cases not in the "worst category", as I observed in Davidson v R at [280], the highest head sentence imposed for one count of manslaughter is 21 years and 7 months. That was R v Camilleri [2021] NSWSC 221, a decision which is currently under appeal. I described that case in Davidson v R at [281]-[282] as follows: "In Camilerri, Wilson J at [1] described the offending as 'one of the most serious instances of manslaughter it is possible for any imagination to conjure'. A daughter stabbed her mother to death in a frenzy decapitating her. On a trial for murder, she was found guilty by a jury of manslaughter on the basis of a partial defence of substantial impairment. At [106]-[107], Wilson J assessed the offender's prospects of rehabilitation as 'very limited' and stated that 'the possibility of a violent outburst … looms large' such that '[t]he protection of the community must be a significant consideration'. A discount of 10% was applied to the sentence to account for the offender's plea of guilty to manslaughter prior to trial (meaning that starting point for the sentence was 24 years)." 1. Having regard to the JIRS statistics for the period from 24 September 2018–30 June 2022, a total of 108 sentences were handed down for the offence of manslaughter, irrespective of whether the offender had entered a plea; committed multiple offences, including those taken into account on a Form 1; or had a prior criminal record. From those 108 cases, the next four most severe sentences indicated for the offence of manslaughter (after R v Camilleri) were as follows: 1. R v DF [2022] NSWSC 762: 14 years and 3 months' imprisonment (applying a 5% discount for a late plea of guilty). The offender assaulted her son, who was aged 2 years and 5 months, inflicting multiple blunt force injuries that caused his death. Her 6-year-old son witnessed the assault. The offender did not take her son to the hospital until two hours later. The sentencing judge found that the offender's moral culpability was significant, and the objective seriousness was well above the mid-range; 2. Tabbah v R [2019] NSWCCA 324: 13 years' imprisonment (an appeal from the initial sentence of 14 years' imprisonment was allowed). The offender and a co-offender broke into the deceased's home at 1.40am and shot him at close range before fleeing. The deceased's two younger daughters, girlfriend, mother and two teenage nephews were home. He was convicted after trial. This court held that the offender's moral culpability was substantial; 3. Magro v R [2020] NSWCCA 25: 12 years and 7 months' imprisonment (applying a 20% discount for his offer to plead guilty). An appeal from an aggregate sentence which included an initial indicative sentence of 15 years and 3 months' imprisonment was allowed. The offender shot the deceased in the neck at close range following a series of fights and retaliations in preceding days; this court upheld the sentencing judge's finding that the offender's moral culpability was high; 4. Paterson v R [2021] NSWCCA 273: 12 years' imprisonment (accounting for a 25% discount for a plea of guilty; an appeal from the initial sentence of 16 years and 6 months' imprisonment was allowed on the ground of manifest excess). The deceased was a stranger to the offender who drunkenly verbally abused him. The co-offender punched the deceased and the offender kicked him to the head and stomped on his head. He then left him on the side of the road where he was subsequently hit and killed by a car. The offender was on parole for an offence of recklessly causing grievous bodily harm which had "striking similarities" to this offence. The offender had a long history of depression, a childhood of physical abuse and suffered from ADHD which was thought to at least partially explain his conduct. 1. For the period from January 2008 to 23 September 2018, JIRS records that a total of 263 full-time custodial sentences were handed down for the offence of manslaughter. From those 263 cases, the most severe sentences indicated for the offence of manslaughter were as follows: 1. R v Attwater; R v Maris [2017] NSWSC 1710: 18 years' imprisonment in respect of Mr Attwater. He was convicted of manslaughter by unlawful and dangerous act in circumstances where he killed the deceased during an aggravated sexual assault involving the act of "vaginal fisting". The sentencing judge was satisfied that the manslaughter was "an offence of extreme objective seriousness reflecting a high level of moral culpability" (at [113]). An appeal against sentence dismissed: Attwater v R; Maris v R [2021] NSWCCA 17; 2. R v Nguyen [2013] NSWCCA 195; (2013) 234 A Crim R 324: 16 years and 2 months' imprisonment (applying a 10% discount for a guilty plea). The offender shot a police officer and killed him during the execution of a search warrant of the offender's premises. The offender discharged his pistol, hitting the deceased's upper arm. Another police officer's shot in response hit the deceased's neck, killing him. An offence of possession or use of a prohibited weapon in contravention of s 7(1) of the Weapons Prohibition Act 1998 (NSW) was placed on a Form 1. The court held that the Form 1 matter was of such seriousness that it "called for a significantly longer sentence being imposed for manslaughter" (at [110]); 3. R v BW & SW (No 3) [2009] NSWSC 1043: 16 years' imprisonment. The offender was the father of the deceased who died at the age of seven as a result of protracted starvation and neglect. The sentencing judge found that the objective gravity of the offence was "within the worst case category for the crime of manslaughter" (at [176]). An appeal to this court was dismissed: BW v R [2011] NSWCCA 176); 4. Regina v LC [2010] NSWSC 815: 14 years and 6 months' imprisonment. The offender was the stepfather of the deceased, who was aged 13 months at the time of his death. The offender held the deceased around the neck with both hands and shook him violently. At the time of the manslaughter, the offender was on parole for a previous manslaughter conviction. The offender suffered from a personality disorder. The sentencing judge described the offender's case as "fall[ing] into the more serious category of [manslaughter]" given the brutality and the fact that "[w]hen the mother sought to protect [the deceased], the offender threatened her with a knife" (at [40]); 5. R v Bellchambers [2010] NSWDC 306: 13 years and 6 months' imprisonment. The offender killed the deceased by an act of domestic violence, which left the deceased in a coma for four and a half years prior to her death. 1. The applicant received a higher sentence than all of these cases. [2] Other serious vehicular manslaughter cases 1. The applicant's undiscounted sentence of 20 years' imprisonment is higher than any of the vehicular manslaughter sentences I considered in Davidson v R including Spark v R [2012] NSWCCA 140 and Crowley v R [2021] NSWCCA 45 referred to by Beech-Jones CJ at CL at [71]-[72], which included multiple deaths. 2. The facts in Davidson v R itself were shocking. The offender's grossly negligent driving resulted in the deaths of four children and injuries to three others. Mr Davidson had driven at very high speeds whilst grossly intoxicated for about 5 km in a manner of driving described at times as "menacing". He lost control of his vehicle and crashed into a fence killing four young children walking by at the time and injuring three others. The starting point for each of Mr Davidson's manslaughter charges (before a discount of 25% for the guilty plea) was an indicative sentence of 19 years' imprisonment, only slightly less than in the present case. The original aggregate sentence of 28 years with a non parole period of 21 years was reduced (by majority) to an aggregate sentence of 20 years' imprisonment with a non parole period of 15 years' imprisonment. 3. Without wishing to detract in any way from the very serious driving in Mr Davidson's case, and cognisant of the fact that no two cases can ever be seen as truly comparable, I am satisfied that the circumstances of the applicant's driving are worse than Mr Davidson's. Furthermore, Mr Davidson was of good character, was always gainfully employed, suffered from ADHD, had engaged in charity work, was genuinely remorseful, had excellent prospects of rehabilitation and was unlikely to re-offend. Mr Davidson received an aggregate sentence slightly longer than Mr Chandler because his actions caused the death of four children and injured three others. 4. In having regard to this "range" of sentences imposed in "comparable cases", I have had regard to what Simpson J (as her Honour then was) said about a "range" in Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [303]-[304]: "A history of sentencing can establish a range of sentences that have in fact been imposed. Such a history does not establish that that range is the correct range, nor that either the upper or the lower limit is the correct upper and lower limit. Sentencing patterns are, of course, of considerable significance in that they result from the application of the accumulated experience and wisdom of first instance judges and of appellate courts. But it would be a mistake to regard an established range as fixing the boundaries within which future judges must, or even ought, to sentence. To take that attitude would be, de facto, to substitute judicial selection of sentences in individual cases for the boundaries of sentencing for a particular offence laid down by Parliament. In this case, that range is from 0 to 25 years. Of course, it is well established that the maximum sentence is reserved for the most serious cases … the ranges of sentences actually imposed, while illuminating, are no more than historical statements of what has happened in the past. They can, and should, provide guidance to sentencing judges, and to appellate courts, and stand as a yardstick against which to examine a proposed sentence. But it is only by examination of the whole of the circumstances that have given rise to the sentence that 'unifying principles' may be discerned: Wong v The Queen (at [59])." 1. I note that the High Court approved this passage from DPP v De La Rosa as having "accurately identified the proper use of information about sentences that have been passed in other cases": Hili at [54]. 2. The fact that the applicant's sentence exceeds all of the aggregate sentences and sentences for vehicular manslaughter including for multiple deaths besides Mr Davidson does not alone suggest error; an established range clearly does not fix the boundaries within which sentencing judges are confined. Despite this, it is one of a number of relevant factors to which I have had regard. Reckless indifference murder sentences 1. The applicant was originally charged with murder, presumably based on reckless indifference to human life. As Johnson J observed in his sentencing reasons at [90]: "It is necessary to keep in mind the distinction between manslaughter and murder by reckless indifference to human life - where, at the time the accused person committed the act causing death, he or she foresaw or realised that the act would probably cause the death of a person but the accused continued to commit the act regardless of that consequence: The Queen v Crabbe (1985) 156 CLR 464; [1985] HCA 22 at 469-470." 1. The mental element for murder by reckless indifference to human life is whether an offender realised that the act causing death (in the present case, driving a vehicle through a fence into a suburban backyard) would probably cause the death of a person and continued regardless of the consequence. When the Director accepted a plea of guilty from the applicant to manslaughter by unlawful and dangerous act in full satisfaction of the indictment, the mental element for that offence was whether the death was caused by an "unlawful and dangerous act". It is well established that an act is dangerous if, viewed objectively, it carries with it an appreciable risk of serious injury; that is, that a reasonable person would have realised that it did. 2. At the proceedings on sentence the Crown invited the sentencing judge to make a finding in this case that the applicant (and not just a reasonable person) realised that his act of driving through the fence and into the backyard exposed another person or persons to an appreciable risk of serious injury and drove through regardless. This is a finding that brings the case precariously close to the murder charge that the Crown withdrew. 3. Given how close such a test is to that for murder by reckless indifference to life, Johnson J was careful to ensure that he did not err by sentencing the applicant on the mental element for murder rather than manslaughter, observing this at [92]: "I keep in mind the distinction between manslaughter and murder by reckless indifference to human life (see [89]-[90] above). The issue here is whether the Court should be satisfied beyond reasonable doubt that the Offender himself realised, at the time he drove through the fence, that his actions exposed another person to an appreciable risk of serious injury. The question is not whether he foresaw or realised that the act would probably cause death but continued with it anyway." 1. There was no ground of appeal contending for error in this finding by his Honour. Nor was it suggested that his Honour fell into error by, in effect, sentencing the applicant for murder. But given this finding, the question arises as to what sentence the applicant would have received had he been sentenced for murder based on reckless indifference to life. 2. The starting point for the manslaughter sentence for this 22-year-old man with a childhood of profound deprivation was 20 years' imprisonment. For my part, it is difficult to see that a murder sentence for the same facts would have been much higher. The reduction of the charge from murder to manslaughter which led to the late plea of guilty would inevitably have led the applicant to believe that he would receive a lower sentence; that is why offenders plead guilty to lesser charges. 3. Clearly there will be some cases in which offenders receive custodial sentences for manslaughter which may be longer than might be imposed on some persons for murder: factors such as an early plea of guilty, youth or old age, mental illness, assistance to authorities and the actual role played by an offender in the enterprise will usually ameliorate a sentence for murder such that it would be reduced to a sentence more consistent with one imposed for a serious manslaughter. Subject to a sentence being proportionate to the gravity of the offence, a longer custodial sentence for manslaughter might be imposed, having regard to the need to protect the community: Veen v the Queen (No. 2) (1988) 164 CLR 465; [1988] HCA 14 at [9]. To put this another way; less serious murders may warrant a shorter sentence than more serious manslaughters; it depends on the objective and subjective factors in each case. 4. By way of example, in the recent case of R v Stefanato [2023] NSWSC 73 a 75-year-old man murdered a defenceless woman by shooting her at close range to the head. The murder was described by the sentencing judge as senseless and brutal. He pleaded guilty, was remorseful and received a non parole period of 13 years and 7 months and with a head sentence of 18 years and 2 months; less than the applicant received for manslaughter (although accepting that Mr Stefanato pleaded guilty earlier). I use this case simply to illustrate that there is a range of sentences for murder and a range of cases for manslaughter and there will often be an overlap in the sentences imposed after the proper application of sentencing principles. 5. The Judicial Commission does not keep statistics for murder based on reckless indifference to life separately from murder sentencing statistics for felony murder or murder where the mental element was an intent to kill or inflict grievous bodily harm. I have had regard to the summary of murder cases based on reckless indifference since 1991 on the Public Defenders' website. Those cases broadly pertain to shooting cases (where the offender has shot and killed the victim), arson cases (where there have been multiple deaths), and suffocation cases. None of them are of assistance as to what this applicant may have received had he been sentenced for murder. 6. I have found one case of murder based on reckless indifference to life where the death involved the offender killing a police officer with his motor vehicle: Regina v Holton [2002] NSWSC 775. In that case the 25-year-old male offender was driving a stolen motor vehicle containing a passenger and a four-year-old child. After the passenger stole someone's bag while the car was stopped, the offender drove off at speed onto the freeway going in the wrong direction. He was pursued intermittently by the police for around 40 kilometres, during which time he exceeded the speed limit by substantial margins and travelled against the flow of traffic twice. He only stopped when he struck a police officer attempting to stop the vehicle by placing road spikes on the road, killing him. 7. As with the present matter, the offender asserted that the driving was motivated by a desire to evade arrest. He pleaded guilty to manslaughter, but that plea was not accepted. He was convicted of murder by a jury. He had an extensive criminal record and an almost non-existent employment history. He experienced a troubled childhood and was sexually assaulted as a child. He was sentenced to 16 years' imprisonment with a non parole period of 12 years. 8. It is to be accepted that Mr Holton was sentenced prior to the enactment of standard non parole periods and that sentences for murder have increased over the years since 2002. But the fact that Mr Holton received a lesser sentence for vehicular murder than Mr Chandler did for vehicular manslaughter is another matter which has led me to be troubled by the sentence imposed in this case. 9. More recently in R v Musa [2023] NSWSC 198 the offender was convicted of murder after a trial on the basis that she had driven her motor vehicle at her former partner, intending to inflict really serious physical injury on him. She drove with the deceased on the front of her vehicle. CCTV footage of this incident depicts that she did not slow the vehicle and it eventually came to a halt against a wall. The deceased was crushed to death by the impact. Button J observed at [21] that it was a "grave example of an extremely grave offence". The offender was a Sudanese Australian with PTSD and of prior good character. She was sentenced to 20 years' imprisonment (the same starting point as the applicant) with a non parole period of 14 years. 10. In R v JK [2012] NSWSC 710, the offender punched the deceased several times, sat in the driver's seat of the deceased's utility vehicle and then drove forward, striking the deceased with the vehicle. When the deceased tried to flee, the offender struck him a second time and ran him over, killing him, before driving off in the stolen vehicle. The offender did not have the intention to kill or inflict grievous bodily harm but was driving in a highly dangerous and reckless manner. This occurred in the context of a spree of criminal behaviour in which the offender and four other youth stole a number of motor vehicles, committed a break enter and steal and attacked a vehicle with two occupants. The offender received a discount of 17.5% for a plea of guilty to murder. The offender was young, had Bugmy factors and low intelligence. He received a term of imprisonment of 15 years with a non parole period of 10 years. 11. A more serious example of murder where the weapon was a motor vehicle is Kutschera v R [2015] NSWCCA 73. The offender was convicted of murder after a trial. The offender was sentenced on the basis that he intended to kill the deceased. Although the decision to drive over the deceased was impulsive, once he formed that intention to kill, he did so with "a cold and calculated detachment and not as a result of loss of self control": at [23]. He received a sentence of 24 years' imprisonment with a non parole period of 18 years. 12. In the applicant's case, it is not apparent to me that the applicant received any significant reduction in the sentence he would have received if he had not pleaded guilty to manslaughter and instead proceeded to a murder trial based on reckless indifference. Subjective case 1. As against the applicant's criminal history, poor prospects of rehabilitation and high risk of re-offending, he was still relatively young, had had a tragically dysfunctional upbringing and had mental health issues. In addition, he was enduring onerous custodial conditions given the nature of his crime (killing a child). 2. Ground 3 contended error in the failure of the sentencing judge to give weight or "proper weight" to the principles in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37, the applicant's mental illness, and/or the applicant's youth. I concurred with Beech-Jones CJ at CL that no patent error was established under that ground; the sentencing judge expressly stated that he had regard to those principles and found that the applicant's moral culpability was "compromised". This finding is consistent with what the High Court held in Bugmy (at [44]) when it observed that it is right to speak of giving "full weight" to an offender's deprived background in every sentencing decision. The High Court went on to state that "[a]n offender's childhood exposure to extreme violence and alcohol abuse may explain the offender's recourse to violence when frustrated such that the offender's moral culpability for the inability to control that impulse may be substantially reduced". The court went on to observe that "the inability to control the violent response to frustration may increase the importance of protecting the community from the offender." 3. The sentencing judge summarised the evidence of the applicant's deprived upbringing at [55]-[62] and his mental health history at [63] and [65] and concluded this: "I accept that the Offender's moral culpability is modified to an extent by application of the principles in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37; Ohanian v R [2017] NSWCCA 268. The Offender has a dysfunctional background which has operated to a degree to compromise his capacity to mature and learn from experience. It is necessary to have regard to these considerations in undertaking the sentencing process in this case. At the same time, it is necessary to keep in mind the need for protection of the public in imposing sentence: Bugmy v The Queen at 595 [44]. Where the Offender has starkly exposed many members of the public to the risk of harm and one person to the reality of death, then these considerations are pertinent as well in the process of instinctive synthesis." (Emphasis added.) 1. His Honour also referred to the Bugmy factors in a further context at [125]-[127]: "If the Offender is already institutionalised (and I accept that he is to a considerable extent), then he is dependent upon an institution such as prison to the point that he cannot live successfully outside it. If this is already the case, then the position can only become worse by way of the lengthy term of imprisonment which must be imposed for these offences as well as the sentences he is presently serving. It is no answer to the Offender's situation to consider the imposition of a sentence which does not reflect the objective gravity of his offences. At the same time, the Court is required to take into account the Offender's dysfunctional upbringing and compromised moral culpability on issues including personal and general deterrence, whilst at the same time keeping in mind the powerful need for protection of the community." 1. Although I can detect no patent error in his Honour's reasons, there was material before the sentencing judge to establish that the applicant's profound childhood deprivation had a significant impact on his offending in a number of ways. Although Beech-Jones CJ at CL has summarised some of that evidence above, I propose to do so in some further detail to explain why I am satisfied that the extent to which the stated consideration of the Bugmy factors is reflected in the sentence imposed may be another explanation for the manifestly excessive sentence. Childhood disadvantage 1. The applicant was born in 1992. Juvenile Justice records report that his parents were in a relationship from the age of 11 years. The applicant's mother first became pregnant at 15 but the baby was stillborn because of physical abuse from the applicant's father. After the applicant was born and whilst she was pregnant with his younger brother, the applicant's mother terminated the relationship with the applicant's father due to domestic violence. She was 23 years old. The applicant's father escaped from custody to exact retribution for this and she was sexually assaulted and stabbed. 2. The applicant's father is Aboriginal, has a long-standing opiate dependency and has spent much of his life in prison. When he was out of prison the applicant did not acknowledge him, although coincidentally, they shared a prison cell during a previous sentence. 3. When the applicant was a child, his mother had various boyfriends who were violent towards her and the children. One of her early partners ran an amphetamine production business from the home. There were dangerous chemicals in large quantities of drugs in full view of the children. That partner would lock the applicant in his room for days. On another occasion police attended the caravan park where his family was living to arrest his mother's partner. The partner fled and was shot (albeit not fatally) by police. This was but one of many experiences in his early childhood which, as psychologist Patrick Sheehan opined, "consolidated his antisocial perception that police held malevolent motives". 4. His mother subsequently had two more sons with another partner. The four children were neglected. The records confirm that the family had "on and off" involvement with DOCS/FACS from 1998 with formal notifications of inadequate parental supervision, domestic violence, alcohol and other drug use by parents and emotional harm. The children were all made state wards when the applicant was nine years old, but they were returned to his mother when she detoxified. She quickly relapsed and the applicant's life "returned to a familiar pattern of chaos and disorder". 5. The applicant's mother had a poly substance use disorder and the applicant was exposed to a variety of drugs and drug paraphernalia in the family home from a very early age. His mother would share her cannabis with the applicant from the age of 11 years. The applicant described having no reliable way of knowing whether he would be fed or cared for. He would be moved spontaneously from one temporary location to another. He loved his mother, but she had a terrible temper and would often "flog" him uncontrollably for misbehaviour. In his evidence in court and the history provided to Mr Sheehan, the applicant described his relationship with his mother as being more like a sister as she set no boundaries for him. 6. The applicant's mother died of a drug overdose/heart attack when the applicant was 16 years old. The contemporaneous Juvenile Justice records record that his mother's drug use had made the applicant concerned for his younger brothers, so he had called DOCS to report her and moved in with his grandmother a week before she died. She died in her bed at night whilst the two younger children were in the bed with her. The Juvenile Justice records report that the applicant felt responsible for her death and the effect that it has had on his younger brothers. He had to help organise his mother's funeral and clean out her house. He noted to an officer at the time that if the "end of life is just a cardboard box, then is it worth living?" 7. The applicant commenced alcohol consumption from the age of 13 years and was drinking a litre of spirits and 2 litres of wine most days by the age of 15 years. By then he started developing gastrointestinal problems from his excessive alcohol use. He ultimately managed to abstain from alcohol because, regrettably, he started smoking methylamphetamine. Once he started taking ice, he described obtaining an instant "peace of mind" and feeling "normal" when he used that drug. He told Mr Sheehan that in retrospect that is a point where his life truly spun out of control. 8. At the time of his proceedings on sentence the applicant's brother was also serving a lengthy sentence. A report of Dr Gilbert Whitton dated 28 March 2008 prepared when the applicant was in custody at the age of 15 noted that his brother, who was only 13 years old at that time, was also in custody at that time. Mental health 1. The applicant has been diagnosed over the years with ADHD, schizophrenia, bipolar disorder, schizoaffective disorder and drug induced psychosis. There is a family history of mental illness. His maternal uncle was diagnosed with schizophrenia and his maternal cousin has bipolar disorder. 2. The applicant was medicated heavily as a child and was seen frequently by staff at Westmead Hospital. The applicant told Mr Sheehan, "What could they do? Nothing. I was going back to the same place (his home) where all that shit was going on. The medication did nothing". 3. The applicant received close psychiatric care in Juvenile Justice. He was treated with the antipsychotic Risperidone in 2006. In 2007-2008 he was treated with lithium, mirtazapine, quetiapine Zoloft and acamprosate (for alcohol withdrawal). His antipsychotic medication was ceased in 2010. He has presented with psychiatric symptoms since then, but the general consensus of the experts is that this is the result of his use of ice rather than any underlying psychosis. 4. Mr Sheehan interviewed the applicant in February 2016 and then again on 13 November 2017. He described his mood as having undergone a clear deterioration during that time. He described the applicant as profoundly depressed with feelings of hopelessness, self-loathing, sleep disturbance, anhedonia, lack of motivation, desire for social isolation and persistent suicidal ideation. Much of the low mood is rooted in feelings of remorse, guilt and shame for his current offence. He is unable to accept the overwhelming magnitude of his wrongdoing (in taking the life of an innocent child through his recklessness). He suffers from a major depressive disorder with the possible differential diagnosis of adjustment disorder with mixed anxiety and depressed mood. Expert evidence 1. Having regard to the applicant's extensive criminal history and other background information, Mr Sheehan's opinion was as follows: "Mr Chandler was exposed to antisocial influences from an early age in his local social milieu and in the family home. His early formative experiences led him to believe that unemployment, uncontrolled substance abuse, violence and crime were a normal part of life. He has associated almost exclusively with substance users and people who are regularly involved with the criminal justice system. With the exception of his grandmother, he has no nexus to conventional and responsible social groups in the community." 1. Mr Sheehan also stated this: "The extreme deprivation of Mr Chandler's childhood is consistent with disruption to personality formation. He exhibited severe conduct disorder from childhood, which has gone on to manifest as Antisocial Personality Disorder and adulthood. Borderline Personality traits are also indicated by Mr Chandler's unstable sense of self, transient feelings of intense despair and suicidality, and his general difficulty tolerating emotional discomfort. He is unskilled in how to live in a conventional functional manner and will require assistance to acquire these skills." 1. And further: "His background is of extreme deprivation and disadvantage in childhood, undermining his ability for suitable personality formation, emotional-regulation, stable attachment and socialisation. Severe behavioural disturbance emerged in childhood and despite external (medication and counselling) intervention his domestic milieu was so damaging that his adjustment only worsened into adolescence, further aggravated by polysubstance use disorder and then the sudden loss of his mother when aged 16 years. He was engaged in a nihilistic lifestyle involving criminality in adolescence and early adulthood, with no understanding of how to go about navigating community life in a positive way, learning to manage his own unstable affect with substance abuse. In this way he has followed the sad example set for him and his childhood environment. He acknowledges the index offence in a way that suggests that he appreciates the terrible gravity of the loss, but is at this stage unable to withstand the psychological burden." 1. In his evidence in court Mr Sheehan observed the following in response to questions from the applicant's then counsel: "Q. You have dealt with many individuals, offenders in the prison system who have suffered from terrible upbringings and in early lives no doubt, have you not? A. Sadly true. Q. This man's upbringing, this man's early years, how does that rate, if you can, in terms of the deprivation and the effects of that deprivation on him? A. Yes it is towards the upper end even amongst the peer group, who often have difficult childhoods, destructive childhoods, his is notable. The level of dysfunction and to be prescribed such serious medications during that phase of development, it is unusual." (Emphasis added] 1. It is common for offenders who come before the courts to have had childhoods of disadvantage and dysfunction. Not only was the applicant's at the more severe level of deprivation, it is uncontroversial that there was a causal connection between it and his offending. There is no need for such a connection in order for the Bugmy principles to apply: Dungay v R [2020] NSWCCA 209. But when there is evidence of such a connection then there can be no doubt that moral culpability is reduced. As Simpson J (as her Honour then was) observed in R v Millwood [2012] NSWCCA 2 at [69]: "I am not prepared to accept that an offender who has the start in life that the respondent had bears equal moral responsibility with one who has had what might be termed a 'normal' or 'advantaged' upbringing. Common sense and common humanity dictate that such a person will have fewer emotional resources to guide his (or her) behavioural decisions." 1. Thus, although I am not satisfied of any patent error in relation to the Bugmy factors, I am satisfied of latent error in this regard as it is not apparent that the reduction in moral culpability is reflected in the starting point of 20 years' imprisonment for manslaughter. I have arrived at that conclusion having regard to his Honour's findings that he only modified the applicant's moral culpability "to an extent", that his dysfunctional background operated "to a degree" to compromise his capacity to mature and learn from experience and that it was still necessary to keep in mind the need for protection of the public in imposing sentence. Conclusion: ground 4 1. For these reasons, I would uphold ground 4. Despite the careful and detailed reasons of the sentencing judge, I am satisfied that the sentence imposed was manifestly excessive. Re-sentence 1. The Crown relied upon an affidavit of Steven Thomson, the solicitor with the NSW Office of the Director of Public Prosecutions with carriage of the matter, dated 12 September 2022, in the event of re-sentence. That affidavit set out the applicant's custodial infringements since he was sentenced on 14 December 2017 until 30 August 2020. Those infringements included possess prohibited goods, assault, intimidation and fight/other physical combat. The last custodial infringement was on 30 August 2020. He has had no infringements in the last two and a half years. 2. The applicant's affidavit dated 9 September 2022 includes updated information as to how he has been progressing in custody since he was sentenced. He has completed the Positive Lifestyle Program and the Health Survival Course. He expressed that he was motivated to engage in programs and vocational training and has attempted to undertake additional drug rehabilitation programs while in custody, although he has been informed that he is not yet able to do so. He expressed to his case officer in September 2020 that he is willing to participate in the Restorative Justice Program. 3. The applicant has been a yard delegate at Goulburn Correctional Centre for about 14 months. He is given responsibility to raise issues on behalf of inmates in his yard and is invited to attend meetings with other yard delegates, senior staff, the head nurse and the Governor. The applicant has also been employed in the yard to provide labour to contractors, including on the Segregation Project. He described his life in custody as being more manageable when he is employed and given work as it gives him structure and routine. He has enrolled in TAFE programs and traineeships, including a Certificate II in Construction. 4. The applicant's time in custody during the Covid-19 pandemic was very difficult and, at some points, he was locked in his cell all day. He was once locked in his cell for 14 days straight. He is regularly locked in his cell for three to five days at a time. 5. The applicant's only real support in the community is his grandmother, who he generally speaks to daily. However, he was unable to speak with her during Covid-19 lockdowns, which caused him a great deal of stress and anxiety. He has not seen her in over four years. 6. The applicant has been on the methadone treatment program since 2017. Since moving to Goulburn Correctional Centre in June 2020, he has been making a conscious effort to stay out of trouble and believes (correctly) that he has not had a custodial infringement since 31 August 2020. The applicant describes himself as having matured a lot since re-entering custody and is focused on showing the victim's family that he is taking steps to become a better person. He stated that he knows he has more work to do and hopes that continuing on his current path will help him avoid returning to custody. 7. I have had regard to this material. 8. I would adopt the findings of the sentencing judge, save for in the following respects. 9. First, I do not accept that the applicant's moral culpability should only be modified "to an extent" given his childhood of profound deprivation. I would not limit the finding in that way. 10. Secondly, I would depart from the sentencing judge's finding that the applicant's dysfunctional background only operated "to a degree" to compromise his capacity to mature and learn from experience. Again, given the evidence, including from Mr Sheehan, I would not limit the finding in that way either. 11. Thirdly, I would find the applicant's prospects of rehabilitation to be slightly better than they were before the sentencing judge given the effluxion of time and the opportunities the applicant has had to demonstrate his ability to take some responsibility for his actions, which he appears to be doing in custody. 12. Fourthly, when the applicant was sentenced, the sentencing judge could not have known that the applicant would be incarcerated during a pandemic. I would ameliorate his sentence to some extent for the years spent in custody during the Covid-19 pandemic. 13. Finally, although the sentencing judge found that the applicant was remorseful, he described his remorse as "belated". Although that is to be accepted insofar as the timing is concerned, on the material before the court the applicant was deeply remorseful at the time of sentence, which is a further relevant factor on re-sentence. 14. The sentence I will impose still falls into the category of the lengthier sentences for manslaughter. But for the discount of 5% for the plea of guilty I would have imposed a sentence of 16 years and 6 months' imprisonment. Applying a discount of 5% to the sentence for the plea (rounding down slightly), reduces that sentence to 15 years and 8 months. I would allow for the same finding of special circumstances as the sentencing judge of (approximately) 68%. 15. As the offender has been convicted of manslaughter by unlawful and dangerous act, a "serious violence offence" for the purpose of s 5A(2A)(b) of the Crimes (High Risk Offenders) Act 2006, the court is required by s 25C of that Act to warn him of the existence of the Crimes (High Risk Offenders) Act 2006. Although he was warned of that at the time of sentence, I would ask that the solicitor for the offender undertake that task again on the court's behalf. 16. I propose the following orders: 1. Extend the time in which the applicant may apply for leave to appeal against sentence up to and including 23 February 2022; 2. Grant leave to appeal against sentence; 3. Set aside the sentence imposed on Christopher Chandler on 14 December 2017; 4. In lieu, impose a sentence of imprisonment, taking into account the offences on the Form 1, of 15 years and 8 months commencing on 12 August 2017 and expiring on 11 April 2033 with a non parole period of 10 years and 6 months commencing on 12 August 2017 and expiring on 11 February 2028. ********** Endnotes 1. The publication of the name of the victim is not prohibited by s 15A of the Children (Criminal Proceedings) Act 1987 (NSW) because she is deceased and her parents consented to her name being published (s 15E(1)). 2. Prior to 2008 the JIRS statistics are recorded in periodical reports rather than as statistics. In a report titled "Sentenced Homicides in New South Wales 1994–2001", it is recorded (at 24) that "[f]or the 231 offenders who were sentenced to imprisonment for manslaughter [during the subject period], head sentences ranged from 18 months to 20 years. The median head sentence was 7 years". This report followed an equivalent study for the period from 1990–1993 ("Sentenced Homicides in New South Wales 1990–1993") in which, at 90, it is stated that "[o]f those 109 offenders who received a full time custodial sentence [for manslaughter], most received a minimum term of less than eight years. There were no fixed term sentences imposed. The average (median) full term sentence imposed was 63 months (slightly over five years). Sentences typically ranged from 42 months to 8 years. Only 29 offenders were sentenced to penal servitude for eight years or more. Two of these cases involved penalties of 24 and 25 years. The latter of these seems to be Paul Evers who shot and killed 5 people in a Housing Commission unit in Surry Hills: R v Evers (unrep, 16/6/93, NSWCCA). I have been unable to locate the other offender through the limited material on JIRS. Amendments 17 April 2023 - [103] - correction made to the second line of the quote. 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: 17 April 2023