New South Wales Court of Criminal Appeal CITATION: Black v R [2010] NSWCCA 321 HEARING DATE(S): 9 November 2010 JUDGMENT DATE: 17 December 2010 JUDGMENT OF: Simpson J at 1; Kirby J at 2; Schmidt J at 3 DECISION: Leave to appeal granted. Appeal dismissed CATCHWORDS: CRIMINAL LAW - leave to appeal sentence - whether sentencing judge failed to apply Guideline judgment R v Whyte and if so whether head sentence was calculated from wrong starting point - no error established - whether sentence imposed was manifestly excessive - not established - leave to appeal granted - appeal dismissed LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 CATEGORY: Principal judgment Georgopolous v R [2010] NSWCCA 246 CASES CITED : Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 R v Whyte [2002] NSWCCA 343; (2002) 55 NSWLR 252 PARTIES: Mitchell Black - Applicant Regina - Respondent FILE NUMBER(S): CCA 2009/9444 COUNSEL: Applicant - Mr B Brown Respondent - Ms S Dowling SOLICITORS: Applicant - J Byrnes Respondent - S Kavanagh (Public Prosecutions) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 2009/9444 LOWER COURT JUDICIAL OFFICER: Murrell J LOWER COURT DATE OF DECISION: 16 December 2009 - 18 - IN THE COURT OF CRIMINAL APPEAL 2009/3749 SIMPSON J KIRBY J SCHMIDT J FRIDAY, 17 DECEMBER 2010 BLACK v R JUDGMENT 1 SIMPSON J: I agree with Schmidt J. 2 KIRBY J: I agree with Schmidt J. 3 SCHMIDT J: On 16 December 2009, after entering a plea of guilty the applicant was sentenced by Murrell DCJ as follows: (i) One (1) count of Dangerous Driving Occasioning Grievous Bodily Harm (Crimes Act 1900 (NSW)) (s52A(3)(c) - maximum penalty seven (7) years), a term of imprisonment of two (2) years and three (3) months, commencing on 16 June 2010 and concluding 15 September 2012, with a non-parole period of one (1) year, three (3) months expiring on 15 September 2011. (ii) One (1) count of Failing to Stop and Assist after Vehicle Impact Causing Grievous Bodily Harm (Crimes Act 1900) (NSW) (s52AB(2) - maximum penalty seven (7) years) - a fixed term of imprisonment of six (6) months, commencing on 16 June 2009 and expiring on 15 December 2009. (iii) One (1) count of Drive Whilst Disqualified (Road Transport (Driver Licensing) Act 1988 (NSW) (s25A(1)(a) on 8 September 2009 - maximum penalty 2 years imprisonment and 50 penalty units) - a fixed term of imprisonment of three (3) months, commencing on 16 December 2009 and concluding on 15 March 2010. (iv) One (1) count of Drive Whilst Disqualified (Road Transport (Driver Licensing) Act 1988 (NSW)) (s25a(1)(a) on 5 November 2008) - a fixed term of imprisonment of six (6) months, commencing on 16 March 2010 and expiring on 15 September 2010. (v) One (1) count of Drive Whilst Disqualified (Road Transport (Driver Licensing) Act 1988 (NSW)) (s25A(1)(a) on 4 November 2008) - a sentence of four (4) months, commencing on 16 June 2010 and concluding on 15 October 2010. (vi) One (1) count of Possess Licence Obtained Dishonestly (Road Transport (Driver Licensing) Act 1998) (s22(1)(b)) Possess Licence Obtained Dishonestly (Road Transport (Driver Licensing) (Act 1998) (s22(1)(b)) - a fine of $1,000.00. (vii) One (1) count of Fail to Surrender Driver Licence Under Suspension Notice (Road Transport (General) Act 2005)) (s205(5)) - a fine of $250.00." 4 The applicant received a 25% discount for his early plea. The overall sentence imposed was 2 years and 9 months imprisonment, with a non parole period of 1 year and 9 months, special circumstances having been found. 5 The applicant seeks leave to appeal on two grounds: "(i) The sentencing judge has not correctly applied or considered the guideline set out in R v Whyte & Ors (2002) 55 NSWLR 252 , and as a consequence has calculated the head sentence from a wrong starting point. (ii) The sentence imposed by Her Honour in respect to the offence of Dangerous Driving Causing Grievous Bodily Harm, having regard to ground (i) of appeal above , was therefore manifestly excessive." The evidence 6 On Melbourne Cup Day November 2008 the applicant went to the King St Hotel Newcastle, to socialise with friends. At about 10 pm he was at McDonalds. He left in the company of friends, driving off in a Toyota 4 Runner, with one person in the front seat and another seated behind him. He was telephoned and asked to collect the victim and two others. The applicant picked them up near the hotel. All three got into the back of the vehicle, with a Mr Jobson still getting in, when the applicant asked 'Is everyone in?' Mr Jobson replied 'hang on dickhead'. The applicant did not hear, or could not recall hearing what Mr Jobson said and he accelerated away, while Mr Jobson was still attempting unsuccessfully to close the rear door of the vehicle. None of the four people in the back seat was wearing a seatbelt. The applicant then executed a U turn across a raised median strip in the middle of the road, turning into the west bound lanes of King St. 7 As the vehicle bounced across the median strip, two of those in the rear seat were pushed towards Mr Jobson, who fell from the car and landed on his feet on the median strip. The victim was also ejected head first and backwards from the vehicle, through the rear passenger door and onto the road, hitting her head, so as to suffer very serious injuries. The applicant proceeded until someone called out 'Stop. Ricky fell out.' One of the other passengers jumped out and ran back to the victim. The applicant then turned left and stopped the vehicle. He and the other passengers then ran back toward the victim. The applicant did not continue right up to the victim, but turned around, went back to his vehicle and drove away. 8 The victim was unconscious. She was transferred to hospital by ambulance, suffering a severe brain injury, with extensive fracturing of the skull and diffuse swelling, from which she has made a remarkable recovery, but has been left with serious lifelong disabilities. They include cognitive and memory deficits; difficulty with visual spatial orientation; difficulty with her eyes, for which procedures have been undertaken, but they have reached a state from which they will not improve. She has been left with minimal movement in her eyes; her left upper limb is seriously affected and she is not expected ever to regain a large amount of strength in her left limb; her jaw was fractured and that remains a problem. Her physical appearance and social life are affected, as is her ability to participate in sport and to care for herself. She cannot return to her work as a hairdresser and it is unclear what, if any fulltime work she will be able to resume in future. She has become reclusive and it is unclear to what extent she will ever become socially active. 9 The applicant pleaded guilty and gave evidence. There was also positive evidence given on his behalf by his stepfather. His subjective circumstances included his age of 20 years at the time of the offence and 21 at sentencing. There was evidence of genuine remorse and good prospects of rehabilitation. He was a tradesman in steady employment, in charge of a crew of 5 men. He was well regarded by his employer. The applicant had a poor driving record, initially in the Children's Court, which included 2 counts of driving whilst disqualified and one of driving in a dangerous manner, overtaking in heavy traffic at excessive speed while having other occupants in the vehicle. He was disqualified from driving and later fined and received a further disqualification from driving while disqualified. There was a further offence while disqualified. He was still unlicensed at the time of this offence. There was also a suspended control order in 2005 for aggravated robbery. Ground 1 – failure to apply R v Whyte and as a consequence calculating the head sentence from a wrong starting point. 10 R v Whyte [2002] NSWCCA 343; (2002) 55 NSWLR 252 was a guideline judgment. There the Court emphasised that it was to apply to what was described to be a typical case. Spigelman CJ observed: "204 A frequently recurring case of an offence under s52A has the following characteristics. (i) Young offender. (ii) Of good character with no or limited prior convictions. (iii) Death or permanent injury to a single person. (iv) The victim is a stranger. (v) No or limited injury to the driver or the driver's intimates. (vi) Genuine remorse. (vii) Plea of guilty of limited utilitarian value. 205 As the Parliament has made clear, in the maximum penalties for the offence, conduct which causes death or grievous bodily harm, even in the absence of any intention to cause such injury, is to be regarded as a serious crime. However, in determining the appropriateness of full time custody and the length thereof, the sentencing judge must give close attention to the degree of moral culpability involved. This is a critical component of the objective circumstances of the offence." 11 The Chief Justice also said: "229 Guideline for offences against s52A(1) and (3) for the typical case identified above should be: Where the offender's moral culpability is high, a full time custodial head sentence of less than three years (in the case of death) and two years (in the case of grievous bodily harm) would not generally be appropriate. 230 In the case of a low level of moral culpability, a lower sentence will, of course, be appropriate. 231 In the case of the aggravated version of each offence under s52A, an appropriate increment to reflect the higher maximum penalty, and what will generally be a higher level of moral culpability, is required. Other factors, such as the number of victims, will also require an appropriate increment. 232 The guideline is, to reiterate, a "guide" or a "check". The sentence imposed in a particular case will be determined by the exercise of a broad discretion taking into account all of the factors required to be taken into account by s21A of the Crimes (Sentencing Procedure) Act . 233 This guideline focuses attention on the objective circumstances of the offence. The subjective circumstances of the offender also require consideration. For the reasons I have given above, when discussing the proportionality cases, particularly Dodd, this approach reflects the principle of proportionality as discussed in those cases. No submission was made to this Court that the new s21A of the Crimes (Sentencing Procedure) Act inserted by the 2002 Act, affects this line of authority. 234 Insofar as this guideline involves a "two step" approach to sentencing it is, in my opinion, as a "check" for the reasons given above, consistent with an ultimate decision that involves the exercise of a broad discretion, sometimes referred to as an instinctive synthesis." 12 As to aggravating factors the Chief Justice said: "216 I had earlier set out a list of aggravating factors which had been established in the authorities as follows: "(i) Extent and nature of the injuries inflicted. (ii) Number of people put at risk. (iii) Degree of speed. (iv) Degree of intoxication or of substance abuse. (v) Erratic driving. (vi) Competitive driving or showing off. (vii) Length of the journey during which others were exposed to risk. (viii) Ignoring of warnings. (ix) Escaping police pursuit." 217 Further consideration of the authorities would cause me to amend this list by changing (v) to read "erratic or aggressive driving" and adding: (x) Degree of sleep deprivation. (xi) Failing to stop. 218 I went on to say at 231: "Paragraph (i) and par (ii) focus on the occurrence, whereas pars (iii)-(ix) refer to the conduct of the offender. The presence of these latter factors may indicate that the offender has abandoned responsibility for his or her own conduct. When the presence of such a factor can be so described, then it can be said to be present to a material degree for purposes of determining an appropriate sentence." 219 It was after this passage that the two limbs of the guideline in Jurisic were set out. 220 I said at 231 that the formulation of whether "the relevant aggravating factor manifest[s] in the circumstances of the case, that the offender has abandoned responsibility for his or her own conduct" involves an element of judgment on which sentencing judges could reasonably differ. 221 I also said at 231: "The period of three or two years, once the threshold of abandoning responsibility has been reached, is a starting point. The presence of additional aggravating factors, or their increased intensity, will determine the actual sentence." 13 Her Honour had regard to the guideline judgment, observing that: "As to the objective seriousness of the offence against s 52(3)(c) it seems to me that the most useful approach is to consider the seriousness in two respects. First, in relation to the conduct, that is the manner in which the offender's driving was dangerous and second, to consider the nature of the grievous bodily harm that was occasioned." 14 Her Honour observed that "the conduct itself does not go beyond the mid-range of objective seriousness. In fact taken in isolation the conduct itself is probably low to mid objective seriousness. The matter that makes this offence significantly more serious is the nature of the injuries that were occasioned." After describing the effect of the injuries her Honour concluded that 'Therefore I would characterise the objective seriousness of this matter as in the upper mid range of objective seriousness". This led her to observe: "I note that in the Whyte guideline judgment reference is made to a custodial sentence of full time imprisonment, unless there is a low level of moral culpability. There is no argument in this case about a low level of moral culpability, so that it is a situation where there must be a sentence of full time imprisonment. And in Whyte it is stated that where an offender's moral culpability is high and there is grievous bodily harm caused generally speaking a sentence of less than two years imprisonment would not generally be appropriate. I do emphasise, however, that is a guideline and not prescriptive. And furthermore, it would appear that is an outcome after a discount for a plea of guilty." 15 It was argued for the applicant that having determined the objective seriousness of the offence to be in the upper mid-range of objective seriousness, her Honour failed to take into account the applicant's subjective features, including aggravating and mitigating circumstances, to determine whether they acted to increase, or decrease a nominal starting point. Having concluded that the starting point for the sentence was 3 years, it was apparent from the conclusion reached that appropriate weight was not given to the applicant's subjective circumstances. 16 Further, it was argued, her Honour erred in adopting a starting point of 3 years for this offence. The guideline judgment in Whyte provided that 3 years was the starting point for an offence where death, not grievous bodily harm, had resulted. 17 I am satisfied that the applicant has not established this ground of appeal. 18 As the Crown submitted, her Honour's approach to determining the objective seriousness of the offence in two steps, itself arguably involved error, given the High Court's explanation in Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 of the instinctive syntheses required to be undertaken in respect of all of the matters relevant to a determination of the sentence to be imposed (see at [39]). In Georgopolous v R [2010] NSWCCA 246, Howie J, with whom Allsop P and Adams J agreed, said: "31 In Sivell v R [2009] NSWCCA 286 McClellan CJ at CL stated: 2 The sentencing Judge described the offence as lying in the mid range of "objective seriousness" but toward the lower end of that range. In so doing the language used by her Honour was that which is appropriate when sentencing for an offence which attracts a sentence which includes a standard non-parole period. The present offence does not attract a standard non-parole period. 3 Although a sentencing Judge must always identify the seriousness of the offence, caution should be exercised when using language relevant to an offence which attracts a standard non-parole period. The relevant principles were discussed by this Court in R v Way (2004) NSWCCA 131; 60 NSWLR 168: see also R v AJP (2004) NSWCCA 434; (2004) 150 A Crim R 575. 4 When assessing where an offence lies in the range of objective seriousness when the offence attracts a standard non-parole period it is important to put aside considerations that do not have a nexus with its commission: Way [99]. Identifying whether an offence falls within the mid range of objective seriousness or otherwise is necessary so that appropriate consideration can be given to the standard non-parole period provided by the statute. The "objective seriousness" of the offence is of relevance only to the non-parole period to be imposed. 5 The "objective seriousness" of an offence is a different concept to the "seriousness of the offence", the latter expression being commonly used when determining the sentence, both total term and non-parole period (if appropriate) for that offence. Where a standard non-parole period is not provided for an offence, the objective seriousness of the offence does not, of itself, direct attention to any particular type of punishment or term of imprisonment which must both be determined after all of the relevant matters, both objective and subjective, which inform the seriousness of the offence have been considered. 32 Further, it seems to me that the course adopted by the Conlon DCJ leads to a "two-step" approach to sentencing by dividing the "instinctive synthesis" into a decision on the objective seriousness of the offence followed by a consideration of the subjective circumstances of the offender: cf Markarian v The Queen [2005] HCA 25; 228 CLR 357 at [35] to [39]. In a case where a standard non-parole period applies the court is forced by the terms of the legislation to engage in a stepped approach to sentencing involving, as the first step, a consideration of the objective seriousness of the offence followed then by a consideration of the matters in s 21A: see MLP v R [2006] NSWCCA 271; 164 A Crim R 93. But where that legislation does not apply, a court should avoid embarking upon an independent and detailed analysis of objective seriousness." 19 Allsop P added: "3 Ms L Rowan, of counsel, who appeared for the applicant, frankly recognised the difficulty with this ground standing alone. Although not required by the presence of a standard non-parole period, the learned sentencing Judge appears to have been using this expression to evaluate and characterise the seriousness of the offence. The expression in the context of the charge, robbery in company, contrary to the Crimes Act 1900 (NSW), s 97(1), may, in the circumstances, with respect, have been inapt, given the maximum sentence for the offence (20 years). His Honour may well have been intending to refer more colloquially, and less technically, to "offences of this type" (ROS p 5). As Howie AJ points out, the use of the concept of "the mid-range of objective seriousness of the offence" called for by the Crimes (Sentencing Procedure) Act 1999 (NSW), Pt 4 Div 1A in sentencing for an offence not calling for a standard non-parole period could well lead to expressions of reasons that might be seen to reflect a "two stage" approach criticised in Markarian v The Queen [2005] HCA 25; 228 CLR 357 at 373-375 [35]-[39]. Without intending the slightest disrespect to the High Court or Parliament, it might be thought, however, that the potential for complexity involved with the intersection of these two aspects of the law of sentencing at this level of abstraction is unfortunate." 20 There was a similar difficulty in this case, the offence not being one which attracted a standard non parole period. Accordingly, there was no reason for adopting the two step process which the High Court warned against in Markarian. Its adoption may be understandable, when a judge is seeking to explain the process whereby a conclusion has been reached, but its adoption in a case where no standard non parole period applies invites both error and unnecessary appeals on the basis that the sentencing judge has fallen into error by not engaging in the necessary instinctive synthesis. 21 Her Honour correctly took the view on the evidence, that this was a relatively serious offence. The submission that having concluded that the offence 'fell into the upper mid range of seriousness' her Honour should then have returned to the objective and subjective matters which she had already earlier discussed, to determine how they impacted on the conclusion reached as to the objective seriousness of the offence, by increasing or decreasing that nominal starting point, may not be accepted. Such a stepped approach would be entirely inconsistent with the instintive synthesis which must be undertaken when the offence is one for which no standard non-parole period is fixed by the legislature. 22 Her Honour did return to the Whyte guideline judgment, concluding that compared to the typical case there discussed, there were differences which she considered. She also dealt with issues of deterrence, the sentencing objectives specified in s 3A of the Crimes (Sentencing Procedure) Act 1999, as well as the aggravating and mitigating factors dealt with in s 21A and the JIRS statistics. The sentence imposed was 2 years and 3 months. It is apparent from her Honour's remarks that she came to the conclusion that the offence warranted a sentence of 3 years, from which the defendant was entitled to a 25% discount for his plea. She also found special circumstances and so fixed a non parole period of 1 year, 9 months. 23 I can see no error in her Honour's approach to the guideline judgment, or in her assessment of the impact of the other matters which she was bound to consider, in concluding that in this offence, before discount for his early plea, a sentence of 3 years imprisonment should be imposed. The guideline judgment indicated that in a case of grievous bodily harm, a sentence of less than 2 years would not usually be warranted. It did not preclude a sentence such as that here imposed, if the circumstances of the particular offence warranted it. The evidence of the criminality involved in this serious offence, even taking into account the mitigating matters which had to be weighed in the balance, in my view warranted the sentence imposed. The sentences pronounced 24 When pronouncing sentence, her Honour said: "I find you guilty of each of these matters and you are convicted of each matter, including the matters on the s 166 certificate. Now in relation to the matters I am going to impose the following sentences: One the sequence 8, drive while disqualified, on 8 September 2008, you are sentenced to a fixed term of imprisonment of three months, from today 16 December 2009 to 15 March 2010. In relation to sequence 9, the drive while disqualified, on 5 November 2008, you are sentenced to six months imprisonment, which is partially accumulated by a factor of three months. So that sentence will date from 16 March 2010 to 15 September 2010. In relation to the fine matters, sequence 6, possessing the licence obtained dishonestly, you are fined the sum of one thousand dollars. In relation to the fail to surrender the licence you are fined two hundred and fifty dollars. In relation to the main matter, the offence of drive in a matter dangerous occasioning grievous bodily harm, the starting point for the sentence is three years imprisonment. I have deducted 25 per cent for the utilitarian value of the plea of guilty and so I will impose a sentence of two years and three months imprisonment. That sentence will be partially accumulated by a factor of three months. So that sentence will start on 16 June 2010 and it will conclude on 15 September 2012. In relation to sequence 3, the drive while disqualified, you are sentenced to a concurrent fixed term of imprisonment of four months from 16 June 2010 to 15 October 2010. ON the matter of failing to stop, you are sentenced to a concurrent sentence of sic months imprisonment, form 16 June 2010 to 15 December 2010." 25 In relation to sequence 8, her Honour said that the sentence was for a fixed term of 3 months to commence on 16 December 2009 to 15 March 2010. For sequence 9, a fixed term of 6 months was to be accumulated by 3 months on sequence 8, to commence on 16 March 2010 to 15 September 2010. The dates specified did not achieve that intent, but resulted in sequence 9 being wholly accumulated on sequence 8. The following exchange occurred: "Just in relation to that I should make reference to the objective seriousness. In my view that matter is right at the low end in terms of objective seriousness, because the offender did stop his vehicle, he did return to a position where he could see the victim. He did leave his companions there who attended to the victim. His act was cowardly and really unforgivable in the circumstances, however, it in no why deprived the victim of receiving appropriate assistance. So the total effective sentence is a sentence of two years and nine months imprisonment. There are special circumstances, being the accumulation of sentences, the offender's youth and his good prospects of rehabilitation. So I will set a non-parole period on the principal matter, that expires on - it will be non parole period effectively or one year and nine months, but it will expire on the fifteenth - sorry, the sentence expires on 15 September 2012 and the non parole period will expire on 15 September 2011. So that is on that particular sentence, a one year three month non parole period, but it is in effect a one year and nine month non parole period. The balance of term on that - I might have given the wrong date on that - the balance of term on that sentence is 15 September 2012. Her Honour: "You're looking confused, Mr Crown CARR: I had 15 December 2012. HER HONOUR: I think I said 15 December, but it should be -- CARR: Because your Honour, as I understood it, gave for what I will call the AB matter, six months to start from -- HER HONOUR: Yes, you're right. CARR: So that makes it 15 December 2012. HER HONOUR: No, I think I did say the wrong thing, but it is two years and three months from 16 June 2010 to 15 September 2012. That is two years and three months - 15 June 2010 to 15 September 2012. CARR: And then I thought your Honour said you started the "non stop and render assistance" from -- HER HONOUR: That is concurrent, 16 June 2010 to 15 December 2010. Sorry, I think I did say the wrong dates, Mr Crown. And the non-parole date is 15 September 2011. ROSSER: Your Honour, I had - with respect to sequences 8 and 9, I understood your Honour to say partial accumulation. HER HONOUR: Yes, that's right. ROSSER: Three months from -- HER HONOUR: No, it is actually not partial accumulation, it is full accumulation . Sorry Mr Rosser. I'm getting my numbers all muddled up. It is three months from 16 December 2009 to 15 March 2010, and then six months form 16 March 2010 to 15 September 2010. ROSSER: As I apprehend, your Honour's total effective sentence is two years, nine months with a non-parole of one year, nine months. HER HONOUR: That is correct." 26 It is thus apparent that her Honour's error in relation to sequences 8 and 9 was thereby corrected. The total sentence imposed for the dangerous driving charge was 2 years and 3 months imprisonment, accumulated by 3 months, commencing from 16 June 2010 and concluding on 15 September 2012. 27 Thus a total sentence of 2 years 9 months was imposed, commencing from 16 December 2009 and concluding on 15 September 2012, with a non parole period of 1 year, 9 months concluding on 15 September 2011. The sentences for sequence 3, for which a fixed term of 4 months was imposed and for the fail to stop offence, for which a fixed term of 6 months was fixed, were made entirely concurrent with the dangerous driving charge. 28 It follows that her Honour's correction of the error made when she initially said that the sequence 9 offence was to be partially accumulated by 3 months, when it was in fact fully accumulated, ensured that her stated intentions, including that the total effective sentence was to be 2 years, 9 months, with a non parole period of 1 year 9 months was achieved. Ground 2 – manifest excess 29 The applicant also argued that the guideline judgment indicated that the appropriate sentence for an offence causing grievous bodily harm was 2 years after discount and that a sentence of 3 years was appropriate for an offence causing death. The result of her Honour's approach was that a manifestly excessive sentence was imposed. 30 In my view this submission does not pay appropriate regard to the purpose underpinning the guideline judgment in Whyte, namely to give guidance as to minimum sentences. The guideline judgment dealt with a typical case, with described characteristics, where the victim suffered grievous bodily harm, where it was considered that a full time custodial head sentence of less than 2 years would not be appropriate, unless there was a low level of moral culpability. The actual sentence imposed must always have regard to the maximum penalty for the offence of 7 years, with the sentence reflecting the criminality of the particular offence in question, having in mind the relevant aggravating and mitigating matters which the evidence reveals. 31 In this case her Honour came to the view that the evidence did not allow the conclusion that there was a low level of moral culpability. That view was clearly open on the evidence, given the number of persons whom the applicant exposed to the risk of injury and the erratic and dangerous manner and circumstances in which the applicant drove the vehicle, in a busy street in Newcastle on the night of Melbourne Cup Day, in the vicinity of a well patronised hotel. There were four people in the rear seat, not wearing seat belts. The applicant drove off, performing an illegal U-turn over the median strip, before the fourth person was able to close the rear door of the vehicle. A warning was given, but the applicant either did not hear it, or heed it. It was his responsibility to ensure the safety of those whom he was driving. The result of his inattention and irresponsible driving was that two people fell out of the moving vehicle. It was a matter of luck that only one person was very seriously injured when she was ejected onto the road. That victim suffered significant head injuries, with serious life long consequences, albeit it is also a matter of good fortune that she has recovered as well as she has. 32 While the incident was of only short duration and did not involve significant speed, the driving was sufficiently erratic and fast, to have had the result that two people were ejected from the vehicle. All of these circumstances, made it apparent that the view that there was low moral culpability involved was not open. 33 These were all matters relevant to consider in determining whether a heavier penalty than that suggested in the guideline judgment as a minimum for a typical offence involving grievous bodily harm was warranted. In coming to a conclusion about that question, her Honour had to take into account the applicant's subjective circumstances, but she also had to consider questions of deterrence and totality. The applicant had a bad record, including another earlier dangerous driving offence when others were put at risk of injury. He was disqualified from driving at the time of this offence. That certainly did not leave open the conclusion that leniency was available to be shown the applicant, or that there was a lesser role for deterrence to play in the sentence imposed, notwithstanding the mitigating matters which her Honour dealt with. They included the applicant's youth and his remorse, demonstrated by his coming forward before arrest and entering a plea. Her Honour took proper account of those matters, including by the finding of special circumstances which resulted in the non parole period imposed. 34 Having in mind all of these matters and the regard which her Honour paid to them, in my view the conclusion that her Honour erred by imposing a sentence higher than the minimum discussed in the guideline judgment, with the result that the sentence imposed was manifestly excessive for this serious offence, is simply not open. Orders 35 For these reasons, I would order that leave to appeal be granted, but the appeal be dismissed. ********** 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. 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