Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Spark v R [2012] NSWCCA 140 Hearing dates: 3/04/2012 Decision date: 04 July 2012 Before: Macfarlan JA at [1] Fullerton J at [2] Grove AJ at [67] Decision: 1. Leave to appeal against sentence granted. 2. Appeal dismissed. Catchwords: CRIMINAL LAW - appeal against sentence - manslaughter - reckless driving - stolen vehicle - police pursuit - whether trial judge erred in failing to give effect to finding of special circumstances - whether trial judge erred in finding offending conduct reflected higher serious criminality than other cases - extra-curial punishment -whether sentence manifestly excessive Legislation Cited: Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Criminal Case Conferencing Trial Act 2008 Cases Cited: Butters v R [2010] NSWCCA 1 Caristo v R [2011] NSWCCA 7 Director of Public Prosecutions (DPP) (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1; 205 A Crim R 1 Hili v R; Jones v R [2010] HCA 45; 242 CLR 520 House v R [1936] HCA 40; 55 CLR 499 Jackson v R [2010] NSWCCA 162 Kalache v R [2011] NSWCCA 210 Lawler v R [2007] NSWCCA 85; 169 A Crim R 415 Maglis v R [2010] NSWCCA 247 Markarian v R [2005] HCA 25; 228 CLR 357 R v Borkowski [2009] NSWCCA 102; 195 A Crim R 1 R v Cameron [2005] NSWCCA 359; 157 A Crim R 70 R v Cramp [1999] NSWCCA 324; 110 A Crim R 198 R v Cramp [2004] NSWCCA 264 R v Daetz; R v Wilson [2003] NSWCCA 216; 139 A Crim R 398 R v Falzon [2000] NSWCCA 530 R v MAK; R v MSK [2006] NSWCCA 381; 167 A Crim R 159 R v Swan [2005] NSWCCA 252 R v Young [2009] NSWCCA 298 Whybrow v R [2008] NSWCCA 270 Windle v R [2011] NSWCCA 277 Category: Principal judgment Parties: The Crown Glen Ewan Spark (Applicant) Representation: Counsel: J Girdham (Crown) T Edwards (Applicant) Solicitors: Solicitor for Public Prosecutions (Crown) O'Brien Solicitors (Applicant) File Number(s): 2008/74486 Decision under appeal Jurisdiction: 9101 Date of Decision: 2010-05-14 00:00:00 Before: Syme DCJ File Number(s): 2008/74486 Judgment 1MACFARLAN JA: I agree with Fullerton J. 2FULLERTON J: The applicant seeks leave to appeal against sentences imposed in the District Court in May 2010 after pleading guilty to two counts of manslaughter in the Local Court in October 2009. These offences were committed on 6 September 2008 when the applicant drove a stolen vehicle on the incorrect side of the road and collided head on with another vehicle killing the driver and the passenger. 3Section 18(1) of the Crimes Act 1900 provides for a maximum of 25 years imprisonment on each count. 4A non-parole period of 8 years and 9 months with an additional term of 3 years and 9 months was imposed on the second count. This was partially accumulated on the first count where a non-parole period of 9 years and 9 months with an additional term of 3 years and 9 months was imposed after two offences on the Form 1 were taken into account in accordance with s 32 of the Crimes (Sentencing Procedure) Act 1999. The offences on the Form 1 consisted of an aggravated break and enter and commit serious indictable offence contrary to s 112(2) of the Crimes Act and an offence of take and drive conveyance contrary to s 154A(1) of the Crimes Act. In the result, an effective term of imprisonment of 15 years was imposed comprised of a non-parole period of 11 years and 3 months with a parole period of 3 years and 9 months. The facts for sentencing purposes 5A statement of agreed facts was tendered on sentence. An expert pharmacologist and a consultant physician in sleep and respiratory medicine gave evidence for the Crown. What follows is a summary of the agreed facts and the evidence of the experts from which the sentencing judge made relevant factual findings. 6At about 10.50pm on 5 September 2008, a residence at Glenmore Park was broken into in the course of which the car keys to a Mazda RX8, which was parked in the driveway, were stolen. The owner saw the car being reversed down the driveway and driven away. This conduct gave rise to the offences on the Form 1. The applicant was under the combined influence of the drugs methylamphetamine and amphetamines at this time. He has never held a drivers licence. He informed police that over the preceding month he had used 3.5 grams of amphetamine daily. 7He did not sleep that night by reason of the effects of the illicit drugs. He also consumed alcohol. 8The following morning, 6 September 2008, he drove the stolen Mazda around the Riverstone/Windsor area. At about 8.05am police received notification of a failure to pay at a service station on Windsor Road involving a stolen Mazda RX8. About 30 minutes later, highway patrol police observed the Mazda turning left onto Windsor Road from Bandon Road heading north. At that point Windsor Road is a two lane roadway with a designated speed of 80 kilometres per hour. Police activated the lights, sirens and in-car video and accelerated up behind the Mazda. The applicant accelerated away from the highway patrol vehicle. He crossed lanes without indicating, overtook a vehicle and accelerated away under increasing speed. The police called a pursuit over the radio. 9The Court was given access to an aerial map tendered on sentence which was cross-referenced to various witness statements which tracked the police pursuit over 2.2 kilometres. The applicant's path of travel was then tracked for a further 3.2 kilometres to the point of impact with the car in which the deceased were travelling. We also viewed the in-car video of the police pursuit which showed, in graphic terms, the applicant's manner of driving under speed in the hazardous wet conditions as he changed lanes without indicating, on two occasions overtaking vehicles after moving onto the left hand shoulder area of the roadway and on one occasion on approach to the intersection with Blackwood Road. Although the Blackwood Road intersection is not controlled by traffic lights, the applicant passed through three intersections before the collision which were controlled by traffic lights. It was simply fortuitous that the applicant had the green lights in his favour as he proceeded through those three intersections as the speed at which he was travelling would not have enabled him to stop were they to have changed from amber to red. 10On approaching a left hand bend in Windsor Road, the applicant cut across the centre marking before overtaking two vehicles. At this time, the Highway Patrol vehicle was registering a speed of 186 kilometres per hour against the applicable speed limit of 80 kilometres per hour. 11At the intersection with Brennan's Dam Road a vehicle pulled out onto Windsor Road and stopped at the centre concrete divider. The applicant continued to accelerate past that vehicle before driving in the centre of double lanes, straddling the centre dividing line before proceeding through the intersection of Windsor Road and Park Road. 12Police terminated the pursuit at 8.33am, 54 seconds and 2.2 kilometres after activating the sirens. The applicant was last seen by police travelling north along Windsor Road towards Windsor at an excessive speed. 13A driver preparing to turn from Windsor Road into the Mobil service station near the intersection of Pitt Town Road described the applicant as "flashing" past with water spraying everywhere "like rooster tails from a speed boat". Another driver travelling south on Windsor Road and preparing to make a right turn into the Mobil service station became aware of the applicant coming towards him at speed. He quickly changed lanes narrowly avoiding a collision. The applicant sped past that vehicle on the incorrect side of the road overtaking two vehicles at the Pitt Town Road intersection on the incorrect side of the road. 14At this point Windsor Road narrows to one northbound and one southbound lane. The applicant moved back onto the correct side without indicating, travelling at a speed which was described by a witness as "flat out". He then came up behind another vehicle and tailgated that vehicle causing the driver to fear imminent collision. The applicant then edged his vehicle towards the centre of the road before crossing to the incorrect side of the road under speed. 15Mrs Christine Paterson was driving south along Windsor Road at Windsor. Her 18-year-old daughter, Christine Paterson, was seated in the front passenger seat. Mrs Paterson was driving her daughter to work. As Mrs Paterson's vehicle neared the crest of the Fitzroy Bridge, she was confronted with the applicant's vehicle on the incorrect side of the road occupying the southbound lane. She attempted to take evasive action but the vehicles collided head on. 16Both vehicles left the road surface under the force of the collision. Mrs Paterson's vehicle hit the protective railing rotating 180 degrees before it came to rest. It sustained very heavy front-end damage. The bonnet had been pushed inwards towards the dashboard. Although both airbags were deployed Mrs Paterson and her daughter died instantly. 17The minimum average speed of the applicant's vehicle during the police pursuit was 146 kilometres per hour, with speeds up to 185 kilometres per hour being registered. The distance from the commencement of the pursuit to the collision was 5.4 kilometres. The total distance from the termination of the pursuit to the collision was 3.2 kilometres. From the termination of the pursuit until the collision the applicant drove at an average speed of between 122.4 and 130.8 kilometres per hour. The applicable speed limit at the site of the collision was 60 kilometres per hour. 18The damage to the front end of the Mazda was also extensive. The applicant suffered injuries to his back and neck and internal abdominal injuries. He was transported to Nepean Hospital where he remained for twelve days under police guard. An order revoking his parole was served whilst he was in hospital. Upon discharge he was taken into custody where he remained until sentence. 19The applicant participated in an electronically recorded interview with police on 30 October 2008. He told police: (a) The Thursday prior to the collision he had a couple of drinks and smoked approximately half a gram of ice (methylamphetamine). (b) He did not sleep Thursday (4 September) or Friday (5 September) and was heading back to where he was staying on the Saturday morning (6 September) for a shower and some sleep. (c) He had used "speed" every day from August until the day of the collision. He was using about 3.5 grams per day. (d) Due to his level of drug use the applicant told police that he was confused to the point where he did not know what day of the week it was. (e) He admitted to driving the Mazda knowing it was stolen. (f) He recalled driving the Mazda on a number of occasions leading up to the collision including along the M4 and, on the morning of the collision, along Windsor Road. He said that he did not have any recollection of the police pursuit or the collision. 20Dr Judith Perl, pharmacologist, provided a report concerning the effect of the applicant's drug use on his driving ability, based on the history he provided to police. Her opinion was that symptoms described by the applicant of being "dead tired" on the morning of the collision were consistent with the intense fatigue which is customarily experienced following heavy use of methylamphetamine. She also gave evidence that, accepting that the applicant was in the drug withdrawal stage on the morning of the collision after heavy methylamphetamine use, his perception and judgment would have been impaired, as would his reaction skills. This is in contrast with an increase in aggressive or risk taking behaviour whilst subject to the effect of the drug. She also reported that in the withdrawal phase the applicant would have had an impaired ability to concentrate with decreased vigilance and alertness. Dr Perl stated that these symptoms commonly manifest themselves in erratic driving or weaving, an inability to maintain lane position and an inability to maintain a vehicle at a consistent speed. She did not consider that the applicant's alcohol intake leading up to the collision was a factor in the collision. 21Dr Peter Buchanan, a consultant physician in sleep and respiratory medicine, provided a report in relation to the level of alertness of the applicant at the time of the collision. Again, based on the applicant's account to police, Dr Buchanan concluded that the applicant was driving with a total sleep deprivation of over 40 hours which likely led to his having marked sleepiness and severely impaired psychomotor performance. Dr Buchanan agreed that the withdrawal state from major methylamphetamine abuse would also have contributed to the applicant's sleepiness and impaired driving ability. 22Police examined the Mazda. No mechanical fault was detected. On the day of the collision the weather was wet and overcast. It was raining steadily throughout the police pursuit and at the time of the collision. The applicant's case on sentence 23The applicant relied upon a psychological report from Dr Emma Collins dated 16 December 2009 and evidence from his stepfather, a letter from his mother and a letter the applicant forwarded to the husband and father of the deceased. Plea of guilty and remorse 24The sentencing judge accepted that his letter reflected genuine remorse and that his record of interview was also reflective of his having accepted responsibility for his conduct. Together with his plea of guilty in the Local Court from which he was committed to the District Court for sentence she allowed a discount of 25 per cent on each count. (This is the subject of the fourth ground of appeal.) The applicant's subjective circumstances 25At the time of the offence the applicant was aged 23 and 25 at the time of sentence. The sentencing judge noted that he had a significant criminal record, commencing in the Children's Court, which not only included repeated offences involving the taking and driving of motor vehicles whilst unlicensed but also offences of violence including robbery in company and assault occasioning actual bodily harm, and various offences of dishonesty. Her Honour also noted that the applicant had been the recipient of almost every form of custodial and non-custodial supervision since 2000 including, most recently, a period of full-time imprisonment for a take and drive offence and that he was subject to parole for this offence at the time of committing the subject offences. 26On 27 May 2008 the applicant was sentenced to imprisonment for 9 months with a non-parole period of 6 months (back dated to January 2008) for breach of a s 12 bond imposed for a take and drive vehicle offence in July 2007 and using a stolen vehicle in May 2008. His criminal antecedents, which are otherwise extensive, record four take and drive offences between 2000 and 2008. He was released on parole on 11 July 2008 - just short of two months prior to the offending the subject of this appeal. 27His criminal offending as a juvenile was coincident with and consequent upon the Department of Community Services assuming responsibility for his welfare at age 13 after his persistent refusal to accept supervision in the family home. He lived in various forms of hostel care with little supervision from that time where he continued to commit offences. At the time of sentence he had a long-term girlfriend and a young child and enjoyed ongoing support from his mother, stepfather and sisters. 28His primary school education was interrupted by changes in schools. The greater part of his secondary school education was provided in custodial settings. He had a limited employment history having admitted to Dr Collins that he financed his lifestyle by committing criminal offences. 29His medical and psychological history included a diagnosis for ADHD in his early teenage years for which he was medicated. This regime was complicated by drug abuse with various failed attempts by community-based services to assist him to address his substance abuse issues. In her remarks on sentence, the sentencing judge noted that his attempts to cease drug use in the past had invariably failed upon his release from custody despite access to a custody-based methadone program. She also noted that evidence was tendered in respect of the injuries he sustained in the collision and his ongoing medical difficulties. Special circumstances and prospects of rehabilitation 30The sentencing judge quoted at some length from Dr Collins' report when considering the question of rehabilitation. Although she was urged to make a finding that that the applicant's prospects of rehabilitation were good and that his risk of reoffending was low, she was unable to reach that concluded view. She noted that while the applicant is in a custodial setting and not using drugs he was able to develop some degree of empathy and insight into his offending behaviour, and that although his claim of wanting to make some positive changes to his life could be genuine it remained untested. That said, she also found that he may have reached a stage where offending is a less attractive proposition than it has been in the past. The sentencing judge also observed that the applicant appeared to already be institutionalised to some extent in that he appeared to cope better inside the prison environment than in the community. She concluded that the seriousness of the offending and the need for a significant custodial sentence outweighed the need for rehabilitative treatment in the short term. 31The sentencing judge was however satisfied that the various matters mentioned in Dr Collins' report, including the applicant's age, health and his personal circumstances, supported what she described as a "limited" finding of special circumstances. In this context she again made reference to the applicant's failed attempts at rehabilitation in the past and his chronic drug addiction. Neither the fact that she was satisfied that the applicant was already to an extent institutionalised nor the need for partial accumulation of the individual sentences were identified by her Honour as material to her finding of special circumstances. The grounds of appeal 32The applicant relies on five grounds of appeal. The first ground of appeal 33There was no challenge to the accumulation of 18 months between the first and second counts, or to the statutory ratio on the first count being moderated to 70 per cent and on the second count to 72 per cent by reason of her Honour's finding that special circumstances justified disturbing the statutory ratio of 75 per cent fixed by s 44 of the Crimes (Sentencing Procedure) Act. The applicant contended that the sentencing judge was in error in failing to give effect to that finding after the order for partial accumulation. The statutory ratio between the non-parole period and the total term was preserved in the aggregated sentence. 34The degree of variation to the ratio between non-parole period and total term following a finding of special circumstances is discretionary. As Allsop P observed in Kalache v R [2011] NSWCCA 210 at [2], the concept of special circumstances in the Crimes (Sentencing Procedure) Act is a reflection of the rehabilitative purposes of sentence and for that reason affects the justice and appropriateness of the overall sentence. 35While the factors relevant to the exercise of the discretion obviously differ from case to case, in a given case the same factors are frequently relied upon both to attract a finding of special circumstances and the degree to which the statutory ratio should be varied so as to provide for extended supervision on parole. When sentences for multiple counts are imposed, and when it is clear that some accumulation is necessary between individual counts, the relative weight to be afforded these discretionary considerations will be important. The exercise of the discretion may however be productive of different results at different phases of the sentencing process as occurred in this case. To the extent that the applicant contends that because of the finding of special circumstances he was entitled to the same or a similar degree of variation in the statutory ratio after partial accumulation as that provided for in the calculation of the individual sentences, that submission must be rejected (R v Swan [2005] NSWCCA 252). The sentencing judge retains a wide discretion as to whether the accumulation of sentences itself qualifies as a special circumstance. In this case the sentencing judge made no such finding. On the appeal this was not said to constitute error. In R v Cramp [2004] NSWCCA 264 at [36] Spigelman CJ said subject to the non-parole period being either manifestly inadequate or manifestly excessive, this Court should be very slow to intervene to alter the ratio ultimately determined by the sentencing judge as an appropriate reflection of the minimum period which should be served in custody and what is required by way of extended supervision, even after a finding of special circumstances. 36In Kalache at [37] Buddin J cited a large number of cases where applications for leave to appeal against sentence have been mounted on the basis that the sentencing judge had failed to give effect to a finding of special circumstances when structuring the overall sentencing outcome, and where this Court has intervened as a result. As Howie J observed in Maglis v R [2010] NSWCCA 247 (noted with approval by Allsop P in Kalache), where a finding of special circumstances is made it is crucial that the intention of the sentencing judge in producing the sentencing outcome is discernible lest there be a suggestion that the structure of a particular sentence or sentences is the result of inadvertence in the failure to give effect to a finding of special circumstances. In Caristo v R [2011] NSWCCA 7 RA Hulme J observed at [36] that: There was no inadvertence or miscalculation in the present case. The sentence judge explicitly stated that she was satisfied that there should be some increase in the parole period on the sentence for the ecstasy offence because a longer period of supervision following release from custody was required. However, she also specifically stated that the increase she proposed would not be "much". 37When dealing with the issue of special circumstances the sentencing judge said: ...The statutory ratio does provide significant supervision time when a lengthy sentence is proposed. It will be appropriate to adjust it slightly, but as accumulation is anticipated, the major adjustment will be made on the second sentence imposed, to reflect a proper ratio on the accumulated sentences. Later in her sentencing remarks her Honour described the finding of special circumstances as "limited". 38The Crown submitted her Honour made an express finding that the impact of special circumstances would be limited to an alteration in the statutory ratio of the individual sentences, and that the length of the aggregate non-parole period, fixed in accordance with the statutory ratio, reflected her intention. The Crown also submitted that her Honour was clearly mindful of the principle that the non-parole period should reflect the criminality involved in an offence, including the need for general deterrence, and that in this case those considerations weighed heavily in the fixing of the aggregate non-parole period of 11 years and 3 months, particularly where she had made only guarded findings on the applicant's prospects of rehabilitation. 39The applicant relied upon the same extract in support of the submission that her Honour intended some minor adjustment to the statutory ratio after accumulation, and that the reference to the "proper ratio on the accumulated sentence" was not the statutory ratio but of a variation of the ratio to the same degree as that which was applied to the individual sentences but that in the result she failed to carry that intention into effect. 40While both constructions may be arguably open, when her Honour imposed the aggregate sentence it is difficult to conclude otherwise than that she intended to provide for a period of supervision on parole in the order of 3 years and 9 months and to provide for further rehabilitative support in that period. While it would have been open to her Honour to have varied the ratio to provide for a slightly longer non-parole period, either because she had made a finding that the applicant was at the time of sentence to some extent institutionalised (Jackson v R [2010] NSWCCA 162) or because of the fact that the sentences were to be partially accumulated, it was not submitted on the appeal that her Honour's discretion miscarried for that reason. It is not for this Court to substitute its own view. 41In Kalache Buddin J observed that in Caristo, RA Hulme J (with whom the other members of the court agreed) reviewed the principles that underpin the discretionary finding of special circumstances at [41]: ... the focus should not be solely upon the percentage proportions that the non-parole and parole periods bear to the total term. The actual periods involved are equally, and probably more, important. In the present case the judge's sentencing order allows for a potential period on parole of 2 years 6 months. There was no evidence before the judge that required a conclusion that this was insufficient to meet the purposes for which the judge found special circumstances. 42I would dismiss the first ground of appeal. The second and fifth grounds of appeal 43Grounds 2 and 5 are related. Ground 2 contends that the sentencing judge was in error in finding that the offending conduct reflected "a higher and more serious criminality" than other cases of motor vehicle manslaughter to which she was referred by counsel. Ground 5 contends that the sentences imposed on both counts were otherwise manifestly excessive. 44In assessing the level of objective seriousness as towards what the sentencing judge described as "the higher end" (of seriousness) falling short of the worst category of case comprehended by s 18(1) of the Crimes Act, her Honour took into account a number of features of aggravation about which there is no complaint. In her sentencing remarks she said: [47] When considering aggravating and mitigating circumstances, the court considers the following features as aggravating for matters of this type: (i)Driving a stolen car in the circumstances to which I have already referred. There is some evidence of premeditation in the taking for driving and in the type of car taken. (ii)Not stopping when called upon by police to do so. In fact the offender took evasive action to stop police pursuing him, by increasing his speed, thus forcing in effect the police to abandon any hope of stopping him. (iii)A continuation of excessive speed, even after the police stopped the pursuit, reinforces the finding that the manner of driving and total criminality had little to do with the pursuit by a police vehicle. (iv)The manner of driving in wet road conditions. (v)The fact that the offender had never been judged as competent to hold a driver's licence and drove nonetheless. (vi)The number of road users in the vicinity of the immediate collision. All of these road users were in potential danger and at least one was successful in taking evasive action. However, in addition were the presumably many more road users, whom we do not see in the video and road users before the police actually saw the offender driving. This and previous considerations are further evidence of the offender's lack of regard for rules and societal norms that relate to public safety. The degree of criminality and potential danger to the public is compounded by the length of use of this vehicle by the offender, remembering at all times he was unlicensed and under the influence to some extent of illicit drugs. (vii)The manner of driving for the short snapshot of time the police have evidence of is extraordinarily dangerous. The offender drove at speed more than double the speed limit, 146 to 186 in an 80 kph zone and 120 to 130 in a 60 zone. He drove on the wrong side of the road, not just at the time of the collision, but also at other times, when passing other cars at speed. In general there was a flagrant breach of many road rules and a total and criminal disregard for public safety. [48] The level of recklessness is extreme. The criminality of the offending behaviour as a whole is high. 45Her Honour also took into account as an aggravating feature the fact that the offences were committed while the applicant was on conditional release for similar offending as reflected in the offence on the Form 1. 46In another part of her Honour's sentencing reasons, again not the subject of challenge, her Honour referred to the fact that the applicant's actions from the time of stealing the car until the collision (including 40 hours when he was deprived of sleep through his ingestion of illicit drugs and his determination to continue driving notwithstanding) were relevant to sentence as constituting a course of conduct which culminated in the offences for which he was to be sentenced. She went on to say: ...the course of criminality is not just the 5.4 km travelled from when he was first seen by police but from the time he first drove the car, and the focus of the criminal recklessness for this offence concentrated at least from the time he left Riverstone, some time before 7.55am [on the morning of the offences]. The collision was an almost inevitable result of the applicant's series of criminal decisions, commencing with taking and driving the motor vehicle. 47Her Honour was well aware of the range of sentences imposed in a number of motor vehicle manslaughter cases. In her sentencing remarks she accurately and succinctly summarised the same body of case law to which the applicant referred on the appeal (R v Cramp [1999] NSWCCA 324; 110 A Crim R 198; R v Falzon [2000] NSWCCA 530; R v Cameron [2005] NSWCCA 359; 157 A Crim R 70; Lawler v R [2007] NSWCCA 85; 169 A Crim R 415; R v Borkowski [2009] NSWCCA 102; 195 A Crim R 1; R v Young [2009] NSWCCA 298). It is unnecessary to repeat that summary or undertake a summary of my own. Unsurprisingly, there are both similarities and differences in the objective features of the offending in each case, and differences in the range and type of both aggravating factors and mitigating factors influencing the ultimate imposition of sentence. It is also significant that some of the cases in this Court which attracted re-sentence involved considerations of double jeopardy (Cameron) and parity (Borkowski), and one where a different maximum penalty was involved (Cramp). 48The sentencing judge's finding that the level of objective criminality was worse or more serious (words she used interchangeably) than any of the cases to which she was referred was in part in response to the Crown's submission that this was a case in the worst category of manslaughter cases. Although she did not ultimately find that the offending was in the worst category (determining instead to locate the offences towards the higher end of seriousness), given the range and extent of aggravating features identified by her Honour and the weight she was entitled to afford them, it was open to her to make the comparative assessment that the offending overall displayed a higher, or more serious criminality than any of the cases to which she had been referred. The fact that some of the objective features of this applicant's offending appear in some of the cases, in particular drug use, speed, a police pursuit and reckless driving, did not oblige her Honour to assess the relative weight of the same features in the same way that other judges in other cases have assessed (or might have assessed) those features. Neither am I of the view that her finding of a comparative high level of seriousness operated to impermissibly inflate the sentences that were ultimately imposed given the necessity for the sentence to reflect the need for general deterrence, and in this case to provide for personal deterrence given the applicant's criminal record, and the need for the sentence on the second count to reflect the separate and serious offences on the Form 1. 49Moreover, there are well recognised limitations on the utility of referring to sentences imposed in other cases to support an argument that a particular sentence is manifestly excessive. In Hili v R; Jones v R [2010] HCA 45; 242 CLR 520 at [48] the High Court had occasion to emphasise again that consistency in sentencing is not demonstrated by numerical equivalence and does not require it in order for the objective of reasonable consistency in sentencing to be achieved. In Director of Public Prosecutions (DPP) (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1; 205 A Crim R 1 at [303]-[305], Simpson J identified the use to which information about other cases might legitimately be put. In Hili the High Court regarded her Honour's remarks as accurate. They said at [54]: ...As her Honour pointed out, a history of sentencing can establish a range of sentences that have in fact been imposed. That history does not establish that the range is the correct range, or that the upper or lower limits to the range are the correct upper and lower limits. As her Honour said: "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 the range of sentences that have been imposed in the past does not fix "the boundaries within which future judges must, or even ought, to sentence". Past sentences "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" (emphasis added). When considering past sentences, "it is only by examination of the whole of the circumstances that have given rise to the sentence that 'unifying principles' may be discerned". 50In order to make good the submission that the individual sentences imposed were manifestly excessive, it is necessary for the applicant to demonstrate that the sentences were unreasonable or plainly unjust, and in that sense are outside the range of sentences open to be imposed in the exercise of a sentencing discretion, such as to demonstrate error (Markarian v R [2005] HCA 25; 228 CLR 357 at [25]). In Windle v R [2011] NSWCCA 277 at [55], Hoeben JA endorsed that as the principled test to be applied where a sentence is said to be manifestly excessive. It is not enough simply to show that the sentencing judge could have imposed a lesser sentence or that this Court might have done so (see House v R [1936] HCA 40; 55 CLR 499 at 504-505). 51The cases to which the sentencing judge was referred, and to which we were referred on the appeal, doubtless provided her Honour with some guidance as to the features of the offending which might impact upon the ultimate imposition of sentence, in particular the use of a high-performance stolen vehicle and driving under the influence of drugs and at high speed in heavily trafficked areas in hazardous conditions after refusing to respond to police direction to stop. They did not however fix any upper limit of sentence inhibiting the exercise of her sentencing discretion. 52Although the individual sentences of respectively 12 years and 6 months on the second count and 13 years and 6 months on the first count (after taking into account the matters on the Form 1) are higher than any sentence imposed either in this Court or at first instance in a case of motor vehicle manslaughter, I am not persuaded, by that fact alone, that the sentences were beyond her Honour's legitimate sentencing discretion such as to constitute error. 53Accordingly, I am not persuaded that either Ground 2 or Ground 5 of the appeal are made out. The third ground of appeal 54The third ground of appeal concerned what is said to be error in the failure of the sentencing judge to take into account as a mitigating factor that the applicant sustained injuries in the collision. The applicant's legal representative on sentence disclaimed any reliance on his injuries operating in mitigation of sentence independently of them forming part of the applicant's overall subjective circumstances and attracting such weight in the calculation of sentence as was appropriate having regard to the objective seriousness of the offending. In my view that concession was properly made. 55In R v Daetz; R v Wilson [2003] NSWCCA 216; 139 A Crim R 398 this Court held at [62]: ... while it is the function of the courts to punish persons who have committed crimes, a sentencing court, in determining what sentence it should impose on an offender, can properly take into account that the offender has already suffered some serious loss or detriment as a result of having committed the offence. This is so, even where the detriment the offender has suffered has taken the form of extra-curial punishment by private persons exacting retribution or revenge for the commission of the offence. In sentencing the offender the court takes into account what extra-curial punishment the offender has suffered, because the court is required to take into account all material facts and is required to ensure that the punishment the offender receives is what in all the circumstances is an appropriate punishment and not an excessive punishment. How much weight a sentencing judge should give any extra-curial punishment will, of course, depend on all the circumstances of the case. Indeed, there may well be many cases where extra-judicial punishment attracts little or no significant weight. 56From the materials tendered on sentence, including the discharge summary from the Nepean Hospital and some accompanying medical records, it must be assumed that her Honour was aware that the applicant's physical injuries included minimally displaced fractures in the vertebrae of his neck, a moderately comminuted fracture in the mid spine which required a laminectomy, and a bowel resection which was also surgically treated over the course of twelve days hospitalisation immediately following the collision. Although she accepted that the applicant experienced physical pain during the course of his hospitalisation, she was not satisfied that this amounted to extra-curial punishment there being no evidence that the applicant suffered any ongoing disability as a result of the injuries aside from some discomfort which was treated with physiotherapy and pain relief as reflected in the Justice Health Progress Notes and as reported upon by Dr Collins. 57Although her Honour did not refer to the authorities which have recently considered the basis upon which injuries sustained in the commission of an offence may amount to extra-curial punishment (including in particular Whybrow v R [2008] NSWCCA 270 where the authorities including Daetz were considered), it is clear that she approached the question in a principled way. While it is true that when considering the question of special circumstances her Honour noted that the applicant had enjoyed good health until, as she described it, he was "seriously injured" and that he had "provided information of his ongoing medical difficulties", there was no evidence to support the further and what I consider to be the necessary finding that his injuries constituted a serious loss or detriment as might amount to extra-curial punishment in mitigation of sentence. The injuries suffered by the applicant and their sequelae can be readily distinguished from the injuries and associated ongoing disabilities recognised in Whybrow at [19] and [25] as being capable of being taken into account in mitigation of sentence. 58The third ground of appeal has not been made out. The fourth ground of appeal 59The applicant submitted that her Honour was in error in allowing a discount of 25 per cent for the utilitarian value of the early pleas of guilty which, it was submitted, also incorporated "a discount" for remorse contrary to Borkowski where at [32] that approach was held to be reflective of error. 60The applicant relied upon a discrete passage in the sentencing remarks where error of that precise kind is said to be patent. After referring to the Criminal Case Conferencing Trial Act 2008,which would have applied had the matter been dealt with in a Sydney trial court rather than at Penrith and where, by operation of section s 17(1)(a) the applicant would have been entitled to a 25 per cent discount as a matter of statute, her Honour said: I have taken into account that the offender made some admissions in his record of interview, and at that time expressed remorse. He has expressed remorse since then and continues to do so. It is in all of those circumstances the combination of all of those factors justify a 25 per cent discount on the sentences that would have otherwise been appropriate, had the matters proceeded to trial and verdict. 61When her Honour refers to "the combination of all those factors justify a 25 per cent discount" there can be no other interpretation open than that she erroneously included remorse in the quantification of the discount for the plea. 62In R v MAK; R v MSK [2006] NSWCCA 381; 167 A Crim R 159 at [44] this Court held that the correct approach to evidence of remorse in the sentencing exercise is not to provide any separate quantified discount but to afford evidence of remorse appropriate weight a mitigating factor as provided for in s 21A(3)(i) of the Crimes (Sentencing Procedure) Act in accordance with the principled approach to sentence the High Court identified in Markarian v R. 63When her Honour came to consider the various factors relied upon in mitigation of sentence she made express reference again to the issue of remorse where she repeated her finding that the applicant's expressions of remorse were genuine reinforcing what she described as "the position where he has reached a stage of his life where offending behaviour may become less attractive proposition than has been the case in the past" (emphasis added). The applicant submitted that this was a powerful indicator of the applicant's positive prospects of rehabilitation and because of error in her Honour's approach to the quantification of the discount for the plea of guilty this Court would readily conclude that insufficient weight was given to it in the calculation of sentence as a feature of mitigation and that for that reason we should move to re-sentence as a more lenient sentence is warranted as provided for in s 6(3) of the Criminal Appeal Act 1912. 64In Butters v R [2010] NSWCCA 1 at [21] I observed that: ...The limitations on the jurisdiction of this court when entertaining an application for leave to appeal against sentence have been recently restated in Jones v R [2009] NSWCCA 169 at [33]-[34]: [33] The Court of Criminal Appeal functions within well-established jurisdictional boundaries and is concerned, on an application for leave to appeal against sentence, primarily to ascertain whether the decision of the first-instance Judge was in error: R v Vachalec (1981) 1 NSWLR 351 at 353. An appeal to this court is not by way of rehearing, and error must be established before the court may intervene: R v O'Donoghue (1988) 34 A Crim R 397 at 401. This court is bound by findings of fact of the sentencing Judge unless they were not open on the evidence or unless error is shown in the sense referred to in House v R (1936) 55 CLR 499 at 504; Kardoulias v R (2005) 159 A Crim R 252 at 265 [56]. [34] To the extent that some of the Applicant's submissions assert that "insufficient weight" was given to a factor or that "appropriate weight" had not been given to another factor, it is timely to refer to the observation of Spigelman CJ in R v Baker [2000] NSWCCA 85 at [11] that "questions of weight in the exercise of a discretion are matters for the first instance judge" and that "the circumstances in which matters of 'weight' will justify intervention by an appellate court are narrowly confined". 65The Crown submitted that remorse would only operate as a mitigating factor to the extent that it is coincident with a positive finding that the offender is unlikely to reoffend and has good prospects of rehabilitation and that her Honour made no such finding in this case having expressed herself in qualified terms at best. For this reason, so it was submitted, even if error is made out because of her Honour's treatment of issue of remorse when calculating the discount to the plea of guilty, no other sentence is warranted in law. The Crown submitted that the evidence relied upon for the purposes of re-sentence would not permit this Court to come to any different view than that reached by the sentencing judge as to the applicant's prospects of rehabilitation and that the need for the sentence to reflect the need for punishment, deterrence and denunciation led inevitably to the conclusion that no more lenient sentence in all the circumstances is warranted. I accept the Crown's submission. 66The orders I propose are: 1. Leave to appeal against sentence granted. 2. Appeal dismissed. 67GROVE AJ: I agree with Fullerton J. ********** 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: 05 July 2012