Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: R v Wright [2013] NSWCCA 82 Hearing dates: 3 April 2013 Decision date: 22 April 2013 Before: Macfarlan JA at [1] Price J at [2] Hulme AJ at [90] Decision: 1.Leave to appeal granted. 2.Appeal dismissed. Catchwords: CRIMINAL LAW - appeal - sentence - s 52A - Aggravated dangerous driving occasioning death - Aggravated dangerous driving occasioning grievous bodily harm -effect on offender - mental illness - moral culpability - extra-curial suffering - whether manifestly excessive - statistics - whether outside range Legislation Cited: Crimes Act 1900 s 52A(2), 52A(4) Cases Cited: Bombardieri v R (2010) 203 A Crim R 89; [2010] NSWCCA 161 Director of Public Prosecutions (Cth) v De La Rosa [2010] 79 NSWLR 1; [2010] NSWCCA 194 Duncan v R [2012] NSWCCA 78 Engert (1995) 84 A Crim R 67 Hughes v R (2008) 185 A Crim R 155; [2008] NSWCCA 48 Markarian v R (2005) 228 CLR 357; [2005] HCA 25 Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57 R v Cameron (2005) 157 A Crim R 70; [2005] NSWCCA 359 R v Cousins [2002] NSWCCA 81 R v Howcher (2004) 146 A Crim R 371; [2004] NSWCCA 179 R v Jaworowski (1999) 108 A Crim R 489; [1999] NSWCCA 430 R v Koosmen [2004] NSWCCA 359 R v Vachalec [1981] 1 NSWLR 351 R v Vukic [2003] NSWCCA 13 R v Woodward [2001] NSWCCA 90 Rosenthal v R [2008] NSWCCA 149 The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54 Thompson v R [2007] NSWCCA 299 Texts Cited: Butterworths Criminal Practice and Procedure, Vol 1 Category: Principal judgment Parties: Grant David Wright (Applicant) Regina (Respondent) Representation: Counsel: D Carroll (Applicant) N Adams SC + J Davidson (Respondent) Solicitors: B Sandland (Applicant) S Kavanagh (Respondent) File Number(s): 2011/67275 Decision under appeal Jurisdiction: 9101 Date of Decision: 2012-05-24 00:00:00 Before: Robison DCJ File Number(s): 2011/67275 Judgment 1MACFARLAN JA: I agree with Price J. 2PRICE J: The applicant, Grant David Wright, seeks leave to appeal against the sentence imposed upon him by Robison DCJ in the District Court at Grafton on 24 May 2012. He had pleaded guilty to one count of aggravated dangerous driving causing the death of CAM contrary to s 52A(2) Crimes Act 1900 (count one) and one count of aggravated dangerous driving occasioning grievous bodily harm to MBJ contrary to s 52A(4) Crimes Act (count two). 3The matters of aggravation averred to in each charge were driving the vehicle by more than 45 kph over the speed limit and driving the vehicle under the influence of intoxicating liquor, having in his blood a prescribed concentration of alcohol of not less than 0.157 grams of alcohol per 100 millilitres of blood. 4An offence contrary to s 52A(2) Crimes Act is punishable by a maximum penalty of 14 years imprisonment, whereas the maximum penalty for an offence contrary to s 52A(4) is 11 years imprisonment. 5The applicant was sentenced to a fixed term of 3 years imprisonment commencing on 24 May 2012 and expiring on 23 May 2015 for count two. A sentence of 9 years imprisonment with a non-parole period of 5 years 3 months commencing on 24 November 2012 and expiring on 23 February 2018 and a balance of term of 3 years 9 months expiring on 23 November 2021 was imposed for count one. 6The overall sentence, then was imprisonment for 9 years 6 months with a non-parole period of 5 years 9 months. 7The earliest date that the applicant is eligible to be released to parole is 23 February 2018. The applicant was disqualified from driving for five years. 8The judge had reduced the sentence by 25 per cent for the utilitarian value of the pleas of guilty. 9The Notice of Appeal identifies two grounds, namely: 1. That the learned sentencing judge impermissibly confined the issue of the applicant's mental illness to the issue of moral culpability. 2. That the sentence is manifestly excessive. 10An agreed statement of facts consisting of five pages was tendered in the sentencing proceedings. I shall set out the facts as succinctly as possible. 11At around 5.30am on 5 January 2011, the applicant set out on a journey from his home, north along the Pacific Highway near Tyndale in Northern New South Wales. There were two passengers in the vehicle, a 14 year old girl (MBJ) and a 16 year old boy (CAM). MBJ had been living with the applicant and his family off and on for four months prior to the offence. She was seated in the rear passenger side seat of the vehicle. CAM was the boyfriend of MBJ and was sitting in the front passenger seat. 12Prior to the collision, the applicant drove dangerously at high speeds along the Pacific Highway which attracted the attention of other motorists. One motorist observed the applicant's vehicle overtake his van at high speed over an unbroken centre line and on approach to a blind left hand bend. Another motorist saw the applicant's vehicle pass his B-Double Combination at well in excess of the 100 kph speed limit, noting that as the applicant's vehicle went passed him, the applicant had his arm extended out of the driver's side window giving him a two fingered peace sign and his vehicle was drifting onto the wrong side of the road. These motorists were so concerned with the manner of the applicant's driving that they phoned the police. 13Another motorist estimated that as the applicant's vehicle passed him, it was travelling at a speed of at least 200 kph. After the applicant's vehicle had passed, the motorist saw the rear of the vehicle "wriggling" around as it negotiated a sweeping right hand bend and drifted left over the fog line narrowly avoiding running off the edge of the highway. 14Other motorists who were travelling south saw the applicant's vehicle approaching in the opposite direction at high speed. One motorist whose vehicle was negotiating a sweeping right hand bend saw the applicant's vehicle travelling at high speed, leaning very heavily to the right and drifting towards his vehicle and trailer as it came around the corner towards him. Another motorist noted that as the applicant's vehicle negotiated a left hand bend at high speed, that the back right hand side was squatted down and appeared to be floating as it came round the bend. On seeing the high speed at which the applicant's vehicle was travelling, another motorist formed the opinion that the vehicle must have been an unmarked police vehicle in pursuit. 15At some stage, the applicant pulled over to the left hand side of the highway and informed his passengers that he did not have enough petrol to get to the destination and that he had forgotten his wallet. The applicant then did a U-turn and travelled south along the highway at a speed which was estimated to be close to 200 kph. 16The applicant's vehicle was seen by another motorist to lose control on a sweeping left hand bend, veering first onto the wrong side of the road, then skidding side ways out of control, crashing through a stand of trees. 17Gavin Lennon, a physicist specialising in "collision reconstruction", was of the opinion that the applicant's vehicle prior to skidding sideways was being driven at a speed between 163 kph and 197 kph. 18A blood test revealed that the applicant had a blood alcohol level of not less than 0.135 grams of alcohol in 100 millilitres of blood. Dr Judith Perl, a pharmacologist, was of the opinion that the applicant's blood alcohol concentration would have been not less than 0.157 g/100 ml with an upper limit of 0.189 g/100 ml and a most likely level of 0.167 g/100 ml at the time of the collision. Dr Perl opined that at a blood alcohol concentration of 0.157 g/100 ml and above, all people would be under the influence of alcohol to the extent that driving ability would be very substantially impaired. 19CAM died due to massive head injuries. MBJ sustained multiple leg and pelvic fractures. After being cut from the wreckage, she was flown to Lismore Base Hospital where she underwent a number of surgeries to insert a number of metal plates and splints into her body to stabilise her fractures. The applicant also sustained a number of injuries and was admitted to Lismore Base Hospital. 20The total distance travelled by the applicant from his home to the site of the collision was 38½ kilometres. The applicable speed limit was 100 kph. 21The judge found that the applicant's driving ability would have been very substantially impaired as a result of his level of intoxication. His Honour observed (ROS 10): "So this was an extraordinary course of driving, two young passengers who were entitled to expect that they would be kept safe within that vehicle, a vehicle being driven by a person who clearly had no regard for their safety and exposed them and others to a significant degree of risk and harm." 22When referring to the victim impact statements that had been read to the court, the judge had no doubt that "what [had] occurred [had] left a devastating impact on each of the victims" (ROS 10). MBJ's victim impact statement disclosed that she had spent almost two months in hospital and had two broken femurs, a broken ankle, three broken ribs, a fractured tail bone and had nine hours of surgery and was given three blood transfusions. She described herself as being "mentally damaged" and having a "very hard time coping with life." MBJ was on anti-depressants and anxiety medication for Post Traumatic Stress Disorder and had thought about committing suicide many times. 23Dr Graham Truswell's expert certificate that detailed MBJ's admission to Lismore Base Hospital, her injuries and operative treatment was in evidence before the judge. 24CAM's mother described the irreversible impact that the loss of CAM's life had had upon her family. She observed that (AB145): "To entrust your child in the care of an adult that presents as responsible and trustworthy, and to have that trust broken, is the worst of all deceptions." 25The applicant sustained extensive injuries in the accident which included a broken shoulder and scapula, broken collarbone, six broken ribs, two fractured vertebrae and a broken pelvis. Both lungs were punctured, as was his spleen. 26The judge found that the offences involved a "high level of moral culpability" (ROS 15). 27The applicant was born on 28 May 1967. He was 43 years old when the offences were committed. His record as a driver in New South Wales and Queensland reveals an appalling traffic history between 1984 and 1997. He had four convictions for driving with the high range concentration of alcohol, the last conviction being on 23 May 1997 when he was sentenced to serve 9 months imprisonment by way of periodic detention and disqualified from driving for 5 years. His driving history prior to 1997 includes convictions for driving whilst disqualified (four times) driving after license cancelled, driving under the influence and driving whilst suspended. It appears that since he was re-issued with an unrestricted license in August 2002, he exceeded the speed limit in July 2007 by not more than 15 kph and in April 2010 by more than 20 kph, but not more than 30 kph. These offences were dealt with by traffic infringement notices and the loss of demerit points. 28In referring to the applicant's traffic history, his Honour said that it spoke for itself, but noted (ROS 16) "the gap in the record from the time of the last offending to the date of the commission of these offences." 29The applicant gave evidence during the proceedings on sentence. He told the judge that he suffered a bad head injury in the accident and did not even remember his mother visiting him in hospital. He did not know why he drove. He extended his apologies to the relatives of the victims. He said that he had a "pretty horrific childhood" but that was no excuse. He had been on Seroquel for almost five years, which had been prescribed by a psychiatrist at Grafton and Maclean and was still on that medication. The applicant said that even with that medication, he had nightmares and could not sleep. He described his work history that had included his own garden care business that he ran for about four years and the running of a restaurant at a golf club that had finished about four months before the collision. 30The judge noted that the applicant had described as "shocking" what had occurred and did not know why he had driven. His Honour accepted that the applicant's apology was genuine and that his evidence overall was a "true expression of genuine remorse and contrition and empathy for the victims" (ROS 13). His Honour observed that the applicant was happily married, that his wife was very supportive of him and that he had a genuine love and affection for his children, aged 17 and 15. The judge noted the applicant's evidence that he was placed on medication some four or five years ago and the applicant's admission that his "pretty horrific childhood" was not an excuse. His Honour said that the applicant's admission went to his credibility as he did not blame his background on what had occurred. 31When referring to the applicant's employment history, his Honour remarked (ROS at 12): "...I note his evidence about jobs in his life, that he has held numerous jobs, apparently he was last employed at a restaurant, and from what he has told me, it seems that at least in so far as the restaurant employment was concerned, he had a managerial type position. I note he had that position no doubt with whatever degree of mental disability he may have had but he was still able to hold that position and other positions in his working life it would appear to me." 32A report from Dr Christopher Lennings, a psychologist, was before the judge. Dr Lennings detailed the applicant's background which included being born to a 16 year old mother who had a diagnosis of paranoid schizophrenia and had been at times abusive and aggressive towards him. The applicant had been to over twenty schools and had six stepfathers, five of whom beat him and one of whom put a shotgun to his head. The applicant completed Year 10 and since school had been in paid employment. He began drinking alcohol around the age of 17, had probably drunk a lot and was currently consuming about 70 standard drinks per week. 33The psychologist reported (AB 151): "...alcohol has been a significant component of his emotional regulation and a habit he is likely to find hard to break. He is likely to require detoxification if he is incarcerated." 34 Dr Lennings conducted a psychological assessment by asking the applicant to complete the Wechsler Abbreviated Scale of Intelligence (WASI) and the Personality Assessment Inventory (PAI). Dr Lennings expressed the opinion at paragraph 42 (AB 155): "The most likely diagnoses for [the applicant] on the PAI include Major Depression, alcohol dependence and posttraumatic stress disorder. On the basis of my interview each of these diagnosis [sic] is likely to be confirmed." 35At paragraph 43, Dr Lennings referred to the applicant as "a man with an exceptionally unfortunate history." Dr Lennings wrote (AB 155): "He experienced multiple child protection risks as a child. His family appears to have a high genetic predisposition to mental illness and given the vicissitudes of his life it is to his credit and resilience he has carved the essentially pro social life he has. He has developed problematic behaviours and presents as a person who is typically depressed, and has used alcohol unwisely at various times in his life as a form of self medication..." and; "Nonetheless, on his report in spite of a most problematic family of origin and limited social support he has done better than might otherwise been expected. His greatest risk of problems seems to have been his heavy regular drinking and whilst the individual days do not now result in severe inebriation the aggregate of his alcohol use is high and most concerning. It is alcohol that led, it seems to the current offence, although as he has no memory of what took place it is hard to reconstruct the events of the day..." 36Dr Lennings reported at paragraph 47 that the applicant "will experience a need for detoxification when he is incarcerated and this should be highlighted to prison authorities" (AB 156). He assessed the applicant's rehabilitative potential to be "moderate, but likely to be eroded by a long prison sentence" (AB 156). 37The judge referred in some detail to Dr Lennings' report and specifically to paragraphs 43 and 47. His Honour remarked that "drinking is an ongoing problem for [the applicant] and should be addressed in the rehabilitation process": (ROS 14). It was his Honour's "firm recommendation" that the [prison] authorities take on board the applicant's possible need for detoxification. His Honour considered that the applicant's prospects of rehabilitation would be greatly enhanced if he was to be released following a shorter non-parole period than would otherwise be the case and made a finding of "special circumstances". 38Following a consideration of the questions of cumulation or concurrence and totality, by his Honour, who cited Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57, the sentence for count one was partially accumulated on the sentence for count two by six months. 39Ground 1: That the learned sentencing judge impermissibly confined the issue of the applicant's mental illness to the issue of moral culpability. 40The applicant submitted that he had suffered from a mental disability both before and after the collision. He referred to Dr Lenning's opinion that he suffered from major depression, alcohol dependence and post traumatic stress disorder and that he had been prescribed Seroquel for five years prior to the collision. Specific reference was made to Dr Lenning's observations at paragraph 46 of his report (AB 156): "...a lengthy custodial sentence is likely to have severe consequences for [the applicant]. He is a psychologically fragile man and will be subject to significant bullying and anti social pressures in gaol. He has largely managed to forsake a life of "madness and badness" that the rest of his family of origin appear unable to have escaped, but gaol represents a potent risk factor to unhinge him. To that end I have significant concerns about his ability to weather a lengthy period of incarceration." 41The applicant drew the Court's attention to the following passage of his Honour's sentencing remarks (at ROS 16-17): "As far as the assertion that he has a mental disability, I ask myself did it contribute to the commission of these offences in a material way? I have been taken to what appears in the notes at p 96065 of the Butterworths Criminal Practice and Procedure Book, Vol 1. I am not of the view that any mental disability had contributed in a material way, he made the decision firstly to drink, secondly to drive and thirdly to drive in the way he did, he must have known at all material times that he was driving at a very excessive speed indeed and of course he knew he had two young passengers. General deterrence in my view, is a fair legitimate and necessary factor to take into account. The courts, must send a strong message to the community that offences of this nature will not be treated leniently. They must be treated appropriately and fairly. So I am therefore satisfied he had knowledge of what he was actually doing, particularly having regard to that time when he decided to stop and turn around..." 42The applicant pointed out that mental illness may mean that a custodial sentence may weigh heavily on a prisoner or it may be a very important factor in considering rehabilitation. The absence of a causal connection between the offence and the mental illness, the applicant submitted, does not produce the automatic result that an offender will not receive a lesser sentence by virtue of mental illness. The applicant argued that his serious mental illness demanded a softening of the importance of general deterrence and a reduction in penalty. 43It is well recognised that an offender's mental condition is not only relevant to a person's moral culpability but can have the effect of reducing the weight given to matters such as general deterrence, retribution and denunciation: Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [53]. However, the High Court made it clear at [54] that such a reduction will not occur in every case. 44The judge in his sentencing remarks did not confine his consideration of the applicant's mental illness to the question of moral culpability but took it into account when considering general deterrence. 45The judge determined that the mental illness had not contributed in a material way to the commission of the offences and went on to say (ROS 17): "General deterrence in my view, is a fair legitimate and necessary factor to take into account". Unsurprisingly, his Honour's finding as to causation is not challenged on appeal as there was not much material before the judge as to the applicant's mental health before the accident and Dr Lennings opined in the passage quoted at [34] above that it was alcohol that led to the offending. 46However, it does not necessarily follow that because of a lack of a causal connection between the mental illness and the commission of an offence, the mental illness has no relevance to general deterrence. As Allen J (with whom Sully J agreed) explained in Engert (1995) 84 A Crim R 67 at 72: "There is, however, one matter I would add for myself. It relates to the relevance to general deterrence of a mental disorder where the mental disorder did not play a causative role in the commission of the offence. The Chief Justice has indicated that even in that circumstance the existence of the mental disorder can be relevant to general deterrence. The cases to which the Chief Justice has referred are all cases dealing with mental disorder of some sort, whether it be deficiency in intellect or some psychiatric disorder. However, the general principles of sentencing in relation to taking into account general deterrence are no different, in respect of mental disorder, than they are in respect of any other characteristic of an offender which might make it inappropriate that he receive a full measure of punishment which reflects the need for general deterrence. General deterrence is simply the deterrence, of others and characteristics personal to an offender might make him an unpersuasive vehicle for the deterrence of others in the sight of those others. It must be emphasised that general deterrence is directed to deterring others. So one must look to the impact upon others. Even in a case where an offender has a mental disability which is unrelated to the commission of the crime the sympathy which his condition must attract in the eyes of others in the community generally may be such that to sentence him with full weight given to general deterrence might have no impact at all upon others. Human sympathy would say: "Well, you would not expect him to get the same sentence as someone else." In that respect there is no difference at all between mental disability and other personal characteristics or personal conditions which would attract sympathy. Assume, for example, that an offender is perfectly able mentally in all respects but, after the commission of the offence, he has become a quadriplegic as a result of a car accident, or he has contracted some dreadful disease which is in the process of shortening his life. In those circumstances, the same considerations of how members of the community would perceive the sentence would apply as in the case of mental disorder." 47The present case is not one, in my view, where the applicant's mental illness calls for lesser emphasis to be placed on the need for general deterrence. I do not think that the applicant's depressive illness and post traumatic stress disorder would in all the circumstances attract the sympathy of others so as to render him an inappropriate vehicle for general deterrence. 48Although there may be no causative link between the mental illness and the commission of the offences, the mental illness may have a significant part to play in the question of rehabilitation: Engert at 71. The judge emphasised the applicant's need for rehabilitation and made a finding of special circumstances. 49During the proceedings on sentence, the applicant's counsel made a brief reference to the applicant's custody being more onerous for him because of his mental illness. His Honour was also referred to a page in Butterworths Criminal Practice and Procedure, Vol 1, that contained the principles relevant to mental illness and the sentencing of offenders that had been summarised in Director of Public Prosecutions (Cth) v De La Rosa [2010] 79 NSWLR 1; [2010] NSWCCA 194 by McClellan CJ at CL which included at [177]: "It may mean that a custodial sentence may weigh more heavily on the person. Because the sentence will be more onerous for that person the length of the prison term or the conditions under which it is served may be reduced." (case citations omitted) 50The judge made no reference to this consideration in his sentencing remarks and it appears that he may have overlooked it. 51The Crown submitted that notwithstanding this oversight, there was no evidence as to how any mental abnormality the applicant was suffering from, would mean that he would suffer in prison any more than someone without a mental abnormality. On the other hand, the applicant relied upon Dr Lenning's opinion in the passage quoted at [39] above that the applicant "... is a psychologically fragile man and will be subject to significant bullying and antisocial pressures in gaol." 52Matters to be taken into account in favour of an offender are to be established on the balance of probabilities: The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54. 53There was no evidence before the judge that the applicant would be unable to obtain treatment in prison for his depression and post traumatic stress disorder, nor was there any evidence that his mental illness would place him in protective or segregated custody. Dr Lennings did, however, suggest that a review by psychological services should occur in custody and the applicant's medication may need adjusting. Furthermore, there was no evidence to support the psychologist's opinion that the applicant, who was almost 44 years old when sentenced, would be subjected to significant bullying and antisocial pressures. At its highest, it amounts to no more than informed speculation. 54For my part, I am not persuaded that the applicant's imprisonment will be more onerous for him because of his mental illness. 55I would reject Ground 1 of the appeal. 56Ground 2: That the sentence is manifestly excessive. 57The applicant's contention that the sentence is manifestly excessive focussed upon the sentence of aggravated driving causing death (count one). There is no complaint about the sentence for count two. 58The principal thrust of the applicant's argument was that the notional starting point of the sentence for count one was 12 years imprisonment before allowance was made for the utilitarian discount of 25 per cent for the plea, which is two years less than the maximum penalty of 14 years. The applicant submitted that the judge did not make a finding of worst case, or close to, a worst case scenario and there were a number of subjective mitigating features that should have been brought into account. They were: (a) the serious injuries suffered by the applicant in the collision and the disabilities that he continues to experience; (b) the applicant's "extra-curial" suffering; and (c) his mental illness. 59Other than the issue of mental illness which was the subject of the first ground of appeal, the applicant's contention of the judge's lack of attention to these subjective features is raised not as discrete error but as reflecting upon the manifest excess of the sentence for count one. 60It has long been the practice of courts to take into account the physical condition of an offender. The fact that serious injuries arise as a consequence of a motor vehicle collision, for which the offender is responsible does not alter the approach that is to be taken. Serious injuries may be taken into account: Rosenthal v R [2008] NSWCCA 149; as may any serious continuing disabilities, that may make imprisonment more burdensome for the offender. The principles stated in R v Vachalec [1981] 1 NSWLR 351 at 353 apply to this consideration. 61As to the notion of "extra-curial suffering", the effect of the death of another person in the accident on the offender and self punishment (the self inflicted sense of shame and guilt) are relevant factors to be taken into account, but the weight to be given to those factors depends on all the circumstances. As Smart AJ emphasised in R v Koosmen [2004] NSWCCA 359 at [32]: "...Where the facts reveal gross moral culpability judges should be wary of attaching too much weight to considerations of self punishment. Genuine remorse and self punishment do not compensate for or balance out gross moral culpability." 62An offender's close relationship with the deceased, as a matter of common sense, might provide some indication of the depth of the self punishment but that does not mean that this consideration does not extend to an offender to whom the deceased was a stranger. Grove J (with whom McClellan CJ at CL and Simpson J agreed) in Hughes v R (2008) 185 A Crim R 155; [2008] NSWCCA 48 observed at [23] that "leniency does not derive from the mere fact that the deceased was not a stranger: R v Howcher (2004) 146 A Crim R 371; [2004] NSWCCA 179, but from the consequential quality and depth of the remorse and shock." 63Each case will depend on its own circumstances and the weight to be given by a sentencing judge to these factors calls for the making of a discretionary decision. 64The applicant was seriously injured in the accident. His injuries are described at [24] above. Dr Lennings interviewed the applicant on 1 March 2012. Dr Lennings reported at paragraph 28 that the applicant was placed on heavy-duty painkillers (such as Oxycontin) and reported severe pain for several months. The applicant told Dr Lennings that he had to go "cold turkey" off the Oxycontin and was placed on alternate pain control, but remained on significant analgesia as he had severe pain, including sciatica. The applicant said that he continued to have severe nightmares that began following the accident, and reported his "life as hell", and "a dominant feeling of being scared by all that had happened". 65When the applicant gave evidence before the judge, he did not mention that he was in pain or taking analgesia for pain relief. He did tell the judge about his regular use of Seroquel and continuing nightmares. No submission was made to the judge that the applicant had (other than a mental illness) continuing disabilities resulting from the collision that should be taken into account. 66It is plain that the judge took into account all of the material before him as to the applicant's injuries and disabilities. He accepted Dr Lenning's description of the applicant's injuries and said (ROS 12): "As far as the injuries themselves are concerned it appears that he has had some degree of recovery, he refers to a sore back but no major medical issues until the severe injuries that he incurred in the accident. In any event there is a physical problem in so far as the accident is concerned and I take that into account to some extent." 67The applicant told Dr Lennings that CAM was "the best friend" of his son, that his son and daughter had put CAM's picture on a wall at home and he cried every time he looked at it. During his evidence, the applicant told the judge that "it used to kill [him]" every time he saw the picture. 68Although the applicant's counsel did not make a submission that the applicant had suffered "extra-curial" punishment, his Honour remarked upon the applicant's extreme distress in the witness box, that his apology was genuine and that the applicant had (ROS at 13): "...effectively, sentenced himself to life, bearing in mind what has occurred but this court must set an appropriate sentence having regard to the objective seriousness of each of these matters." 69His Honour (a very experienced sentencing judge) was mindful of the applicant's self-punishment and genuine remorse, but was aware that the applicant's high level of culpability could not be ignored. 70I would reject the applicant's submission that the judge did not bring into account, or gave insufficient weight to his subjective mitigating features. 71The submissions as to mental illness have been dealt with in the disposition of the first ground of appeal. 72The applicant referred to Buddin J's analysis of sentences imposed for driving offences that resulted in the death of another party in Bombardieri v R (2010) 203 A Crim R 89; [2010] NSWCCA 161. Buddin J's extensive review included offences sometimes referred to as motor/manslaughter and offences of aggravated driving causing death. The applicant submitted that the highest sentences for an offence contrary to s 52A(2) that were reviewed in Bombardieri were ones of 8 years: see R v Woodward [2001] NSWCCA 90; R v Cousins [2002] NSWCCA 81; Thompson v R [2007] NSWCCA 299; R v Jaworowski (1999) 108 A Crim R 489; [1999] NSWCCA 430. The applicant contended that the sentence imposed by the judge was more proportional to an offence of motor/manslaughter which was said to be much more serious than a s 52A(2) offence. In a further submission, the applicant said that the 9 year sentence was greater than the upper range of the Judicial Commission statistics that were tendered during the sentencing proceedings. 73The Crown pointed out that the Judicial Commission statistics for s 52A(2) offences disclosed that, in total, forty-seven such offences were dealt with by higher courts in this State between July 2005 and June 2012. The highest head sentence being one of 9 years, was imposed in Bombardieri and in three other matters, offenders were sentenced to head sentences of 8 years. The Crown submitted that statistics for this offence are complicated by the fact that there can be numerous combinations of death and grievous bodily harm caused in these matters and the question of totality makes isolating individual sentences difficult. 74I do not think it is necessary to detail here those cases that Buddin J so helpfully set out in Bombardieri; however, it is useful to refer to Bombardieri, Duncan v R [2012] NSWCCA 78, and R v Cameron (2005) 157 A Crim R 70; [2005] NSWCCA 359, as these authorities were handed to the judge during the proceedings on sentence and some reliance is placed on these decisions by the applicant upon appeal. 75In Bombardieri, an appeal against the manifest excess of a sentence of 10 years imprisonment with a non-parole period of 6½ years for one count of aggravated driving causing death was sustained. The offender had engaged in an extenuated period of dangerous driving at speeds of up to 160 kph over a significant distance, including in speed zones of 80 and 100 kph, in circumstances of aggravation, namely, to escape pursuit by a police officer. The offender's plea of guilty to the s 52A(2) offence was accepted by the Crown in full satisfaction of an indictment, which also charged him with manslaughter. The offender, aged 20 years at the time of sentencing, was receiving treatment for anxiety and depression. The deceased was the driver of an on-coming utility vehicle. In the result, the offender was sentenced to 9 years imprisonment with a non-parole period of 5 years 9 months. 76During his sentencing remarks, the judge referred to Bombardieri noting "for example the offender in that case was much younger than the offender we have here." His Honour remarked (ROS 16): "I am also mindful of the circumstances in relation to that case and there are some similarities there but no one case is identical with the other but I have taken that into account to the extent that I can." 77His Honour's observation that no cases are identical appositely recognises the limited value of what are said to be comparative cases. In any event, there are a number of factors in the applicant's case that heighten the seriousness of his offending when compared to Mr Bombardieri. The applicant was a middle aged offender, who did not have the benefit of Mr Bombardieri's youth. Furthermore, unlike Mr Bombardieri, who was the sole occupant of his vehicle, the applicant was entrusted with the safety of two young persons in his car. The extreme speed with which the applicant drove his vehicle was aggravated by the fact that his driving ability was substantially impaired as a result of his high level of intoxication. Alcohol was not a factor in Mr Bombardieri's offending. Although the applicant was not involved in a police pursuit, his manner of driving was such that an eyewitness assumed that his vehicle was an unmarked police car involved in a pursuit. The head sentence imposed by this Court in Bombardieri was the same as the judge imposed but the non-parole period of 5 years 9 months was 6 months higher than the applicant's sentence for count one. The totality principle did not apply in Mr Bombardieri's case whereas it did in the applicant's case. I do not think that Bombardieri provides assistance to the applicant's argument of manifest excess. 78Duncan v R concerned two counts of manslaughter and three counts of dangerous driving occasioning grievous bodily harm. Prior to entering into a sweeping left hand bend, the vehicle was travelling at a speed of 190 kph or 195 kph. The offender was unable to negotiate the curve, leaving the road and then impacting with a number of trees. Two of the passengers were killed and three other suffered grievous bodily harm. For each offence of manslaughter, the offender was sentenced to a non-parole period of 5 years imprisonment with a further term of 4 years 6 months. The second manslaughter sentence was accumulated by a period of 12 months on the first. On each of the three counts of dangerous driving, the offender was sentenced to a fixed term of three years imprisonment. As a result of the accumulation and concurrence, the total effective sentence was 12 years 6 months with a non-parole period of 8 years. The offender's appeal against sentence and the severity of sentence was rejected. 79In R v Cameron, the offender pleaded guilty to three counts of manslaughter and one count of aggravated driving in a manner dangerous causing grievous bodily harm. The offender with four passengers in the vehicle lost control of it on a sweeping left hand turn and hit a telegraph pole. The offender had been driving the vehicle at speeds considerably in excess of 100 kph, the applicable speed limit being 50 kph and had a blood alcohol reading of 0.114 gs of alcohol per 100 mls of blood. On each of the manslaughter counts, the offender was sentenced to imprisonment for 6 years with a non-parole period of 2 years. On the count of aggravated dangerous driving causing grievous bodily harm, he was sentenced to a fixed term of 3 years. The overall effective sentence amounted to a total sentence of 8 years imprisonment with a non-parole period of 4 years. The Crown successfully appealed against the manifest inadequacy of the sentences, the manslaughter sentences each being increased to 7 years with a non-parole period of 4 years. As a result of partial accumulation, the overall effective sentence was increased to 9 years with a non-parole period of 6 years. 80This was a Crown appeal which could only be of limited guidance on sentence for motor/manslaughter cases. McCllellan CJ at CL observed at [3]: "But for the fact that this is a Crown appeal in respect of which the accepted principles require the respondent to be sentenced at the lowest end of the available range to my mind a significantly greater sentence may have been appropriate. In the circumstances the sentences proposed by Grove J and with which I agree should be seen as the minimum appropriate." (case omitted) 81I agree with the Crown's submission that in so far as Cameron is said to set any sort of sentencing range, it could only be to indicate that a non-parole period of 7 years with a balance of term of 3 years is the bottom of the permissible range of three manslaughter offences in circumstances similar to those in Cameron. 82It is well recognised that manslaughter is a more serious crime than the offence of aggravated dangerous driving under s 52A(2), which is reflected by the former offence carrying a maximum penalty of 25 years imprisonment whereas the latter carries a maximum penalty of 14 years imprisonment. Sometimes the distinction in the culpability of an offender charged with the statutory offence as distinct from manslaughter will be a fine one, but that does not mean that the offender can be punished for the crime of manslaughter for which he has not been charged: R v Vukic [2003] NSWCCA 13 per Adams J at [9]; Thompson v R [2007] at [15]. 83However, sentences imposed in motor/manslaughter cases do not set an upper limit for offences of aggravated dangerous driving causing death. The upper limit is fixed by the maximum penalty of 14 years imprisonment, which remains a yardstick when assessing a sentence appropriate to the objective and subjective circumstances of the offence. 84Similarly, the upper limit of the range of sentence for a s 52A(2) offence is neither provided by the Judicial Commission sentencing statistics nor by comparative cases, but this material provides guidance and assists in achieving consistency in sentencing. As Simpson J in Director of Public Prosecutions (Cth) v De La Rosa said 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..." 85To establish ground two, the applicant must demonstrate that the sentence was manifestly excessive in the sense of being unreasonable or plainly unjust: Markarian v R (2005) 228 CLR 357; [2005] HCA 25. Each case must be considered in light of its own facts. No two cases are the same and there is no single correct sentence: Pearce v R. 86To my mind this is a very bad case of aggravated dangerous driving causing death. Whilst it is always possible to imagine driving that might have been more outrageous, the applicant's disgracefully irresponsible conduct is close to the worst type of offence of its kind. The judge described the applicant's driving as extraordinary and correctly found that the applicant's moral culpability was high. The applicant drove his vehicle at an extreme speed along a major highway for some 38½ kilometres whilst his driving ability was substantially impaired by alcohol. He placed not only his young passengers at great risk but also many other motorists who were travelling along the Pacific Highway. The judge did not impose the maximum penalty for the offence, but commenced with an undiscounted starting point of twelve years imprisonment. Although stern, the sentence imposed for count one was within the legitimate exercise of his Honour's sentencing discretion. 87I should mention that the partial accumulation by 6 months on the sentence for count two was generous to the applicant as the offence of dangerous driving occasioning grievous bodily harm to MPJ was itself very serious. 88I am not persuaded that either the individual sentence for count one or the overall sentence was manifestly excessive. 89Accordingly, the orders I propose are: (1)Leave to appeal granted; (2)Appeal dismissed. 90HULME AJ: I agree with Price 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: 23 April 2013