Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Regina v Manok [2017] NSWCCA 232 Hearing dates: 6 September 2017 Decision date: 27 September 2017 Before: Payne JA at [1] McCallum J at [20] Wilson J at [65] Decision: Appeal dismissed Catchwords: CRIME – sentence – Crown appeal – dangerous driving causing death and dangerous driving causing grievous bodily harm – fatigue – whether sentencing judge erred in assessment of moral culpability – whether sentence manifestly inadequate Legislation Cited: Crimes Act 1900 (NSW), ss 52A(1)(c), 52A(3)(c) Crimes (Sentencing Procedure) Act 1999 (NSW), ss 5, 7, 53A Criminal Appeal Act 1912 (NSW), s 5D Cases Cited: Carroll v The Queen [2009] HCA 13 CMB v The Attorney-General for New South Wales [2015] HCA 9 Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 Mulato v R [2006] NSWCCA 282 R v Begbie [2001] NSWCCA 206; (2001) 124 A Crim R 300 R v Hernando (2002) 136 A Crim R 451; [2002] NSWCCA 489 R v Janceski [2005] NSWCCA 288 R v Khatter [2000] NSWCCA 32 R v Merillo [2017] NSWCCA 173 R v Paul Musumeci (Court of Criminal Appeal (NSW), 30 October 1997, unrep) R v Whelan [2012] NSWCCA 147 R v Whyte (2002) 55 NSWLR 252; [2002] NSWCCA 343 Silvestri v R [2016] NSWCCA 245 Taylor v R [2006] NSWCCA 7 Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 Category: Principal judgment Parties: Crown (applicant)) Muhammad Al-Hafiz Manok (respondent) Representation: Counsel: B K Baker (Crown applicant) G Smith SC (respondent) Solicitors: Solicitor for Public Prosecutions (Crown applicant) Solve Legal Pty Ltd (respondent) File Number(s): 2016/149120 Publication restriction: None Decision under appeal Court or tribunal: District Court, Gosford Jurisdiction: Crime Date of Decision: 29 March 2017 Before: Bozic DCJ File Number(s): 2016/149120 Judgment 1. PAYNE JA: I have had the opportunity to consider the reasons of McCallum J in draft. I agree with her Honour that the Crown appeal against sentence should be dismissed, although for somewhat different reasons. 2. Although I am persuaded by the Crown that this is a case where the sentencing judge erred in his assessment of the facts, and thus in characterising the objective seriousness of the offence, I would exercise the residual discretion to decline to interfere with the sentence. 3. Objective seriousness of the offending 4. Whilst the moral culpability of the respondent was low on the hypothesis that the length of the journey during which others in the car were exposed to risk was only the 12km from the turn off onto Peats Ridge Road until the point of the accident, I am unable to accept this finding as one open to the sentencing judge on the evidence. 5. Whilst it may be accepted that, subjectively, the respondent only "felt tired" from the turn off onto Peats Ridge Road, the objective evidence about the length of the journey during which others in the car were exposed to risk was to the contrary. 6. The relevant circumstances were that the respondent: 1. had returned from a trip to Malaysia three days prior to the accident on an eight hour flight (on which he slept); 2. slept for four or five hours the two nights after returning from Malaysia; 3. worked until midnight the day before the accident setting up the new restaurant in Pyrmont; 4. woke up between 4:15am and 4:30am the day of the accident for morning prayer; 5. worked all day the day of the accident at the restaurant opening; and 6. began driving at about 10.30 or 11 pm that evening from Pyrmont to Guildford and on to Mangrove Mountain, a journey of about 1.5 hours. 1. The circumstances in which the respondent entered the car that evening were objectively dangerous and exposed passengers in the vehicle and others on the road to real risk from the time that the respondent decided to drive home. I accept the submission of the Crown that the risk "increased with every kilometre travelled by the respondent". The decision to drive in the circumstances described above was a decision that carried with it real risks. Tragically, those risks came to pass. 2. The sentencing judge failed adequately to address the risk that was posed by the respondent's actions in driving that night. When addressing the objective seriousness of the offence, his Honour really only considered the respondent's actions only from the time that the respondent first fell asleep. 3. The respondent gave evidence that he felt tired from the Pacific Highway turnoff, but had not felt tired before then. In the sentencing judge's remarks, his Honour said: "… To the extent that he was tired, I do not consider that there was a degree of sleep deprivation. The tiredness was not such as in the circumstances I would consider to amount to sleep deprivation as I have said, he did not fail to stop." 1. The sentencing judge did not analyse the objective seriousness of what occurred by reference to what occurred before the respondent first said he felt tired. By limiting his consideration of objective seriousness of the conduct to the period after the respondent said he first felt tired the sentencing judge fell into error. The focus on this evidence of the respondent's subjective feelings to the exclusion of the objective evidence addressed above was an error. In those circumstances it was not open to the sentencing judge to characterise the respondent's moral culpability as "very low" and "a little above momentary inattention". 2. The sentencing judge's finding that the respondent was tired but not suffering from "sleep deprivation" was a reference to this Court's guideline judgment in R v Whyte (2002) NSWLR 252; [2002] NSWCCA 343, which specified at [217] the "degree of sleep deprivation" as one of eleven potentially aggravating factors for an offence of this nature. 3. In my view the sentencing judge erred in concluding that the circumstances I have set out above did not amount to sleep deprivation as described in Whyte. Whilst, of course, there are varying degrees of sleep deprivation, with varying degrees of attendant risk, the circumstances here did not permit a finding of no sleep deprivation. The respondent had been awake since 4.15am, had slept for only four to five hours both nights before the accident and was suffering, at least to some extent, from jet lag. The respondent knew in embarking on the 1.5 hour drive to Mangrove Mountain that there would be limited opportunities to stop on the freeway or otherwise during the course of that drive. It is not to the point that that the respondent, subjectively, did not feel tired until the turn off from the Pacific Highway. In getting into the car in Pyrmont the respondent, on the objective evidence, was sleep deprived and taking a risk. 4. His subjective belief that he was not then tired was of little consequence, in the same way as the subjective beliefs of a driver who believes there is no danger in his or her travelling over the speed limit, or overtaking "safely" despite it being prohibited, or driving believing (incorrectly) he or she is below the legal blood alcohol limit is of little consequence. The genuine subjective belief of many (or even most) offenders involved in fatal car accidents will be that there is little relevant risk in their conduct. Tragically, in all cases where death or serious injury occurs, that subjective belief will be incorrect. 5. On the evidence, this was not a case akin to momentary inattention. The objective seriousness of the offending should have led to a sentence of full time custody being imposed. Given the unusual circumstances in this case and my conclusion about the exercise of the residual discretion, however, it is unnecessary to identify what that period of full time custody should have been. Conclusion concerning exercise of residual discretion 1. In Crown appeals on sentence, even where a sentence is erroneously lenient, the Court retains a residual discretion to decline to interfere with the sentence: Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 at 465-466 [1]. The onus rests on the Crown to persuade the Court to intervene: CMB v Attorney General for New South Wales [2015] HCA 9 at [36] (French CJ and Gageler J) and [66] (Kiefel, Bell and Keane JJ). 2. The Crown very properly submitted concerning the residual discretion that "we concede there are matters to be agitated in that area." In this case, the offender's remarkably strong subjective case and real progress toward rehabilitation since the offending conduct are powerful factors in favour of the exercise of the residual discretion to decline to interfere with the sentence imposed. 3. Whilst there was no delay in the appeal being brought by the Crown and the increase to the sentence which was warranted would not amount to mere "tinkering", the effect upon the offenders' progress towards rehabilitation, together with the other matters to which McCallum J has referred, is such that I would exercise the residual discretion to decline to interfere with the sentence in these cases. 4. The nature of this appeal, and its focus on the errors made by the sentencing judge in finding facts for the purposes of addressing the objective seriousness of the offending, suggests that any re-sentence in this case would have limited utility in providing broader guidance to sentencing judges in the future. In any event, this is a case where the guidance afforded to later sentencing judges by allowing an appeal should not come at too high a cost in terms of justice to the individual. 5. Whilst error has been shown and the sentence imposed was erroneously lenient, this was a case where I would exercise the residual discretion to decline to interfere with the sentence under s 5D of the Criminal Appeal Act 1912 (NSW). 6. For these reasons I agree with McCallum J that the appropriate order is: 1. Crown appeal dismissed. 1. McCALLUM J: This is a Crown appeal against the sentence imposed on Muhammad Al-Hafiz Manok after he pleaded guilty in the District Court to two charges of dangerous driving occasioning death contrary to s 52A(1)(c) of the Crimes Act 1900 (NSW) and one charge of dangerous driving occasioning grievous bodily harm contrary to s 52A(3)(c) of the Crimes Act. The maximum penalty for dangerous driving occasioning death is imprisonment for 10 years. The maximum penalty for dangerous driving occasioning grievous bodily harm is imprisonment for 7 years. Neither offence carries a standard non-parole period. 2. The respondent pleaded guilty at the earliest opportunity and was allowed a discount of 25% to reflect the utilitarian value of the plea. The sentencing judge was satisfied that no penalty other than imprisonment was appropriate: cf s 5 of the Crimes (Sentencing Procedure) Act 1999 (NSW). His Honour determined to impose an aggregate sentence of 2 years. Pursuant to s 7 of the Crimes (Sentencing Procedure) Act, his Honour directed that the sentence be served by way of intensive correction in the community. 3. In imposing an aggregate sentence, the judge indicated the sentences that would have been imposed for each offence had separate sentences been imposed. The sentences indicated were, for each of the two charges of dangerous driving occasioning death, a term of imprisonment, before allowing the discount for the plea, of 2 years (reduced to 18 months applying the discount). For the offence of dangerous driving occasioning grievous bodily harm, the sentence indicated, before application of the discount, was 15 months (discounted to 11 months to reflect the plea). The aggregate sentence accordingly reflected accumulation in the order of 6 months. 4. The Crown relies on a single ground of appeal: that the sentence pronounced was manifestly inadequate. As noted in the Crown's written submissions, a claim of manifest inadequacy is a conclusion and does not depend upon the establishment of specific error. In the present case, the Crown nonetheless specified three particulars in support of the ground of manifest inadequacy, as follows: 1. His Honour erred in the assessment of the respondent's moral culpability. 2. His Honour failed to have due regard to general deterrence. 3. His Honour failed to properly apply principles of totality. 1. The first of those at least alleged specific error and ought to have been stated as a discrete ground of appeal: Carroll v The Queen [2009] HCA 13 at [8]. 2. The circumstances of the offences were not in dispute. The aspect of the respondent's driving relied upon as amounting to dangerous driving (fatigue) was established by his own admissions after he consented to be interviewed by police. 3. The agreed facts were repeated almost verbatim in his Honour's sentencing judgment and it is convenient to take the same course. The offences arose out of an accident on 13 May 2016. The respondent, who was 25 years old at the time, was the driver of a car that ran off the road and collided with a telegraph pole. 4. The respondent lives in a Muslim community at Wiseman's Ferry Road, Mangrove Mountain. The community owns a number of businesses. On 11 May 2016 the respondent was opening a new Malaysian Restaurant in Pyrmont with other community members. He was in Pyrmont helping to set up the restaurant for opening until 12am on 12 May. He stayed in Sydney that night and woke up at around 4 to 4:30am to prepare for 5am prayer. 5. The new restaurant opened on 13 May 2016 and the respondent was awake all that day assisting with the opening. At about 10:30pm on 13 May the respondent went to Guildford. From there he drove back towards the property at Mangrove Mountain. From Guildford to Mangrove Mountain he was driving with the following passengers, all of whom lived in the same religious community and had been assisting in opening the restaurant. The front passenger was Welna Penny, a 63 year old man. The rear passenger behind the front passenger was FH, a 15 year old boy whose parents live in Perth. He had been residing in the community with his parents' knowledge and approval for about eight months. The middle rear passenger was RS, a fifteen year old boy, the grandson of Welna Penny. The rear passenger behind the driver's seat was Nural Sholehoddin, a 28 year old woman and the second wife of Welna Penny. 6. Welna Penny was the only other licenced driver. The offender was driving a white Toyota Hilux. The trip was without incident until the offender turned onto Peats Ridge Road from the Pacific Highway. He drove generally north for about 20km at or about the posted speed limit before experiencing a strong and clear sign of high level of fatigue; he experienced what is colloquially known as a micro-sleep. His head nodded forward and his eyes closed as he momentarily fell asleep before waking up. He continued driving. 7. The respondent again fell asleep at the wheel a short time later and left the road a short distance south of the road entrance to number 1350 Peats Ridge Road approximately 60m from the power pole with which the vehicle would ultimately collide. At about that moment the offender woke up again. He saw he was going to collide with the power pole and attempted to brake after the vehicle had already left the road. He also took evasive action, turning the steering wheel to the right. Despite this the vehicle continued on its course and collided with the power pole. The majority of the passenger's side of the Hilux came into contact with the pole. The vehicle was spun around in an anti-clockwise direction and came to rest in the draining ditch on the western side of the road facing south. 8. Welna Penny and FH died instantly. Nural Sholehoddin was admitted to hospital for a number of days suffering from shock. The offender suffered a few cuts and bruises. RS sustained a number of injuries including a laceration to his forehead, skull fractures, extensive injuries to his left eye, a brain haemorrhage, a spinal injury, flank bruising and a kidney injury. 9. The applicant gave evidence at the proceedings on sentence and also called evidence from the victim of the third offence who suffered grievous bodily harm. 10. For the purpose of determining the objective seriousness of the offences, the sentencing judge made the following findings of fact based on all the material before him: (1) Two days before the accident the offender returned to Australia from Malaysia. It was an eight-hour flight and he slept on the flight. (2) Over the next two days he worked setting up a cafe in Pyrmont. (3) On the two nights before the accident the offender had between four and five hours sleep on each night. (4) On the day of the accident he worked at the cafe and after leaving the cafe he drove to Guildford. (5) At about 10:30 to 11pm he departed for Peats Ridge. He drove up the M1 motorway and turned off at the Peats Ridge exit. On Peats Ridge Road the road was dry, there was limited traffic and his vehicle was in a good condition. (6) At about the time he turned off the M1 the offender began to feel tired. A short time later he nodded his head and closed his eyes. He immediately woke up and realised that he had to stop. He planned to stop at a Caltex Service Station which he knew was not far ahead. (7) He did not want to stop immediately because he did not feel it was safe to do so. He knew that it was common for trucks to travel the road. At the point of this first micro-sleep the road was still "bendy". (8) The offender drove on and "experienced a micro-sleep". He awoke just as the vehicle was about to collide with a power pole. Two of the passengers were killed and one suffered grievous bodily harm. (9) According to the extract from Google Maps contained in tab 4 of the bundle the distance from the scene of the accident to the Caltex Service Station s approximately 2.2km or "two minutes without traffic". 1. His Honour noted the guidance provided by the guideline judgment of this Court in R v Whyte at [229] that, for a typical case where the respondent'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. 2. His Honour noted that the guidance so expressed reformulated the Jurisic guideline [1] in light of the decision of the High Court in Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64. His Honour also referred to the composite list provided in Whyte of factors that might be regarded as aggravating the seriousness of the offending. Those factors are: (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 or aggressive driving; (vi) Competitive driving or showing off; (vii) Length of journey during which others are exposed to risk; (viii) Ignoring of warnings; (ix) Escaping police pursuit; (x) Degree of sleep deprivation; (xi) Failing to stop. 1. The first two of those factors are matters unrelated to the manner of driving. The extent and nature of the injuries inflicted must of course be considered in the assessment of objective seriousness because the law has regard to consequences. The number of people put at risk is also significant as an indication of objective seriousness. Each of those considerations pointed to a conclusion that the present offences were objectively serious, as his Honour recognised. 2. The remaining factors listed in Whyte relate to the manner of driving and are often analysed by reference to the extent to which they indicate that an offender has abandoned responsibility for his or her own conduct. However, as has been explained in a number of decisions expressly referred to in his Honour's sentencing judgment, offences under s 52A are not divided by a bright line between cases of momentary inattention and those of abandonment of responsibility. On that issue, I would respectfully adopt the remarks of Simpson J (as her Honour then was) in R v Khatter [2000] NSWCCA 32 at [31]: Those are the two extremes. There are shades and gradations of moral culpability in different instances of the offence and it is proper for the courts to recognise a continuum, rather than a dichotomy, when assessing moral culpability. 1. Of the factors listed in Whyte which may inform that assessment, his Honour noted that speed was not a factor; alcohol and drugs were not involved; the driving was not erratic or aggressive; there was no competitive driving or showing off; the respondent did not ignore warnings; he was not escaping police pursuit and he did not fail to stop. 2. The only factors which required assessment from that list were the length of the journey and the question of sleep deprivation. His Honour found that the length of the journey during which others were exposed to risk was the distance of 12km from the turn off onto Peats Ridge Road up to the point of the accident. The respondent's evidence was that he had not felt tired until that point. For most of that 12km distance, the extent of the evidence was that the respondent was "feeling tired". The judge found that after the respondent had a micro-sleep he recognised the need to pull over to have a break but did not do so immediately because he was concerned as to the safety of stopping on that part of the road. The judge accepted that evidence without qualification. 3. As to sleep deprivation, the judge found that the degree of tiredness from which the respondent was suffering was not such as to amount to sleep deprivation but that he did drive while tired. 4. The judge rejected a submission by the Crown that the respondent had ignored the warning of the first micro-sleep, accepting that he had taken note of the fact that he had fallen asleep and had determined to stop at the first safe opportunity. 5. In those circumstances, the judge assessed the moral culpability as low. His Honour held that it was not a case of momentary inattention or misjudgment but nor was it a case of abandonment of responsibility, concluding "to the extent that it is necessary to identify where on the continuum of the spectrum this offence lies, it is very close to that end of the spectrum which ends at momentary inattention". 6. The Crown submitted that that finding was infected by error in that the judge mischaracterised the nature of the offending. Specifically, it was submitted that, although his Honour had regard to the fact that the length of the journey during which others were exposed to risk was 12km, that finding did not find its way into the assessment of objective seriousness. Secondly, the Crown submitted that, in accepting the applicant's evidence that it was not safe to stop immediately after he had a micro-sleep, the judge erroneously fastened on the respondent's subjective belief. 7. I do not accept those submissions. As to the distance over which others were exposed to risk, the Crown's submissions appeared to assume that the risk was objectively high over the whole distance of 12km. However, up until the point where the respondent had a micro-sleep, the only evidence as to any indication of risk was that, at the turnoff onto Peats Ridge Road, the respondent "began to feel tired". It was dangerous to continue driving while feeling tired but there is nothing to indicate that the degree of risk at that point (before the micro-sleep) was, and ought to have been perceived to be, high. 8. It may be accepted that the micro-sleep served as an acute warning of a high degree of risk. The difficulty with the Crown's submission as to his Honour's fastening on the respondent's subjective belief at that point is that there is no objective evidence as to whether there was a safe place to pull over between that point and the point when the respondent fell asleep immediately before the collision. The respondent's subjective assessment of that issue, whilst not determinative, is not wholly irrelevant. 9. The Crown submitted that, if the respondent's subjective assessment that it was not safe to stop were to be accepted, it would follow that he was not guilty of the offences. I do not accept that submission. By his plea, the respondent accepted that the degree of fatigue was enough to render his driving dangerous. He accepted that he felt tired from the point of the turnoff. But there is simply no basis, in my respectful opinion, for concluding that the degree of tiredness over the 12km journey and up to the point of the micro-sleep was high enough to warrant an assessment of his moral culpability as being any higher than it was assessed to be by the sentencing judge. 10. On the strength of his Honour's findings, the sum of the respondent's culpability lay in the fact that he drove for a period of up to 12km whilst "feeling tired" and that, after the micro-sleep, he momentarily misjudged the wisdom of continuing to the next safe stopping point (which he thought was 500m down the road) rather than pulling over immediately, the objective safety of doing which is not established on the evidence. I am not persuaded that his Honour's assessment of the objective seriousness of the offences as being "very close to that end of the spectrum which ends at momentary inattention" entailed error. General deterrence 1. The Crown accepted that this aspect of its argument was "result-based". 2. Leaving aside the question of the result, it is clear enough that his Honour did consider the importance of general deterrence. His Honour expressly referred to the remarks of Allsop P (as his Honour then was) in Whelan v R [2012] NSWCCA 147 at [4] as follows: The consideration and choice of a sentence for an offence contrary to s 52A(1) may be one of extraordinary difficulty. A sentencing judge may well be faced with an offender of otherwise good character who faces the potentially catastrophic consequences of imprisonment, yet that offender has taken the life of another by the kind of misconduct in paragraph (a), (b) or (c). The views expressed in many cases such as R v Jurisic (1998) 45 NSWLR 209 and R v Whyte (2002) 55 NSWLR 252 reflect the fact that the charge of a motor vehicle is one that is of great responsibility. The community expects such instruments of danger to be controlled responsibly. General and specific deterrence are important as is the statement of the sentencing court of the public denunciation of dangerous driving. That does not however require that every error of judgment, tragic in its consequences, demands incarceration. If it be necessary to state it for any judicial officer, the Crimes (Sentencing Procedure) Act 1999 (NSW), s 51 requires that a court not sentence an offender to imprisonment unless satisfied that no penalty other than imprisonment is appropriate. The evaluation, here, by the sentencing judge, of an appropriate non-custodial sentence was, in my view, both reasonable and just. 1. On the strength of a finding that the level of moral culpability was low, it was open to his Honour to conclude that a sentence of imprisonment to be served by way of an intensive correction order was appropriate. Totality 1. The Crown submitted that inadequate accumulation of itself is indicative of error in the present case. It was accepted that questions of accumulation, concurrence and totality are matters falling squarely within the discretion of the sentencing judge. However, the Crown submitted that accumulation of only 6 months failed to reflect the total criminality of the offending, which was committed against three victims, and that it failed to reflect the discrete harm suffered by each. 2. It must be borne in mind that, as his Honour noted, it was necessary in considering the principle of totality not to deprive the respondent of the benefit of his plea. But for the discount of 25%, the degree of accumulation would have been 8 months. Further, while it was of course necessary to have regard to the fact that there were three victims, his Honour also had to have regard to the fact that all three offences arose from exactly the same conduct. I am not persuaded that the measure of accumulation reflected in the aggregate sentence reveals error. 3. Although the sole ground of appeal was of manifest inadequacy (for which specific error need not be established), the Crown's submissions in this case were very much dependent upon the alleged specific error in the assessment of moral culpability. If it is accepted (as in my view it should be) that his Honour did not err in assessing the degree of moral culpability to be low, the complaint of manifest inadequacy is not sustained. I did not understand the Crown to contend otherwise. An aggregate sentence of imprisonment for two years, even where ordered to be served by way of intensive correction in the community, could not be said to fall outside the range of penalties for offences entailing low moral culpability or to overlook the guidance of the decision in Whyte. 4. For those reasons, I am of the view that the Crown's appeal should be dismissed. 5. In case I am wrong in reaching that conclusion, it is appropriate to consider the Court's residual discretion under s 5D of the Criminal Appeal Act 1912 (NSW) to dismiss the appeal. The Crown very fairly acknowledged that this is a very difficult case from the point of view of residual discretion. The respondent presented an extremely strong subjective case at the proceedings on sentence and even stronger considerations at the hearing of the appeal. He is married with two children aged four and two and his wife is currently pregnant with their third child. He lives on a community farm on the Central Coast with a number of other adults and children where they raise animals and grow crops. The community lives entirely off the land. One of the victims of the respondent's offences was formerly the manager of the farm; since these offences the respondent has taken over that role, feeling that it is his responsibility to continue to manage the farm "as a form of penance" for what he did. There is no one else capable of managing the farm within the community. 6. The respondent has complied with the terms of his intensive correction order and shows excellent prospects of rehabilitation. The person who has supervised his community service work wrote a letter attesting to his excellent performance of his duties. 7. The respondent gave evidence that he is very concerned for his mental health if he goes to prison. He said the thought of it terrifies him and he has a genuine fear that he would be a target for violence in prison. The prospect of success of this Crown appeal has had an impact on the applicant's health, affecting his sleeping and eating. He described his weight loss as an eating disorder which has been "magnified somewhat" since he received notice of the Crown appeal. 8. The prospect that the respondent would be a target of violence if imprisoned is reinforced in the report of the psychologist tendered at the proceedings on sentence. She described the respondent as a person of low confidence with a tendency to look to others for guidance and direction and who may on that account be vulnerable to the anti-social influence of others. She also expressed the opinion that those factors would increase the respondent's vulnerability to mistreatment within a custodial environment. 9. In my view, that evidence presents a compelling case for this Court to exercise its residual discretion to dismiss the appeal. Had I been persuaded that the sentencing decision was erroneously lenient, that is the course I would have proposed. 10. In any event, I am not satisfied that the decision entailed specific or manifest error and for that reason the order I propose is that the appeal be dismissed. 11. Since writing this judgment I have had the benefit of reading the judgments of Payne JA and Wilson J. In order further to explain what is now a dissenting judgment, I wish to add the following remarks. As noted above, the sentencing judge in this case made brief reference to the fact that, in Whyte, this Court reviewed the Jurisic guideline in light of the decision of the High Court in Wong. His Honour was referring to the careful analysis of the status of guideline judgments undertaken by the Chief Justice in Whyte. In particular, Spigelman CJ noted in Whyte at [195] that the majority judgment in Wong cast doubt on the use to which sentencing judges could put the Jurisic guideline and that it was "desirable to clarify the degree of 'prescription', or lack thereof, in that guideline". 12. The terms in which the guideline was reformulated were explained by the Chief Justice at [113] in Whyte as follows: However, the authorities referred to above suggest that this Court should take particular care when expressing a guideline judgment to ensure that it does not, as a matter of practical effect, impermissibly confine the exercise of discretion. This involves, in my opinion, ensuring that the observations in the original guideline judgment of R v Jurisic – that a guideline was only an "indicator" – must be emphasised, albeit reiterated in the language of the 2001 Act as a matter to be "taken into account". A guideline is to be taken into account only as a "check" or "sounding board" or "guide" but not as a "rule" or "presumption". I see this as a reaffirmation of the reasoning in R v Jurisic. 1. The sentencing judge in the present case undertook a full and careful evaluation of the respondent's moral culpability. In the course of that assessment, his Honour concluded that the extent of the respondent's tiredness (about which he gave evidence) was not such as to amount to the aggravating factor listed as item (x), "degree of sleep deprivation", in the Whyte list of aggravating factors. He concluded, having regard to all of the evidence, that the level of moral culpability was low and that an aggregate sentence of imprisonment for two years was appropriate. 2. That was an evaluative judgment which, in my respectful opinion, reflected a thoughtful and proper consideration of all relevant matters including the guideline judgment in Whyte using that guideline, as it was expressly intended, as a check or a sounding board or a guide and not as a rule or a presumption or, worse, a rigid algorithm for determining the length of time a young man must spend in gaol. The Crown's submissions have not persuaded me that there is any basis for this Court to interfere with the sentencing judge's exercise of his discretion. 3. WILSON J: I agree with the order proposed by McCallum J, but for different reasons. I will state them relatively briefly, relying upon her Honour's outline of the facts and circumstances of the matter. 4. The Crown brings its appeal arguing that the sentence imposed upon the respondent is manifestly inadequate, being so far below the range of sentences that could justly be imposed, as to undermine the proper administration of criminal justice in the sentencing of offenders for driving crimes of this nature. It is submitted that it is important for this Court to provide guidance to sentencing courts such that the criminality of these offences, where the dangerousness relied upon is driving whilst fatigued, is properly reflected. 5. The Crown refers to three particulars of error as set out by McCallum J. The Assessment of Moral Culpability 1. The Crown submits that the sentencing judge was in error in concluding that risk manifested in the respondent's driving only in the last twelve kilometres of the journey, rather than in finding that the whole of the journey from Guildford to the crash scene was attended with risk due to fatigue. 2. The evidence before the sentencing court as to the level of the respondent's tiredness was that which he himself had told police. In the three days prior to the crash the respondent had undertaken an eight hour international flight that had left him feeling "jet lagged", and had spent two days working long hours setting up a new business, having only four or five hours sleep on those nights. On the morning of the crash he had arisen at 4.15am or 4.30am, and had no sleep before setting out from Guildford at 10.30 or 11pm. 3. Despite that evidence, the sentencing judge found that the respondent only experienced tiredness at the point at which he left the M1 Motorway, the distance over which others were exposed to risk from the respondent's driving thus being confined to the last 12 kilometres of the journey. His Honour did not regard the respondent as being "sleep deprived". On the basis of those conclusions the sentencing judge characterised the relevant driving as an error of judgment. 4. The question is whether those conclusions were open on the evidence, having regard to the caution with which this Court should approach any challenge to the factual findings, or assessment of seriousness, made by a first instance judge. As was said by Spigelman CJ in Mulato v R [2006] NSWCCA 282 at [37]: "Characterisation of the degree of objective seriousness of an offence is classically within the role of the sentencing judge in performing the task of finding facts and drawing inferences from those facts. This Court is very slow to determine such matters for itself or to set aside the judgment made by a first instance judge exercising a broadly based discretion. The question must be whether or not the particular characterisation which [the sentencing judge] gave to the circumstances of the offence was open to [the judge]." 1. Having carefully considered the evidence, I am of the view that his Honour's findings were not open on the evidence. The resulting assessment by the sentencing judge of the respondent's moral culpability as little beyond that of momentary inattention was also erroneous. 2. It must be borne in mind that, in circumstances where the respondent was aware of the heavy workload and small amount of sleep he had had over the preceding three days, and must have been conscious of his tiredness, he commenced to drive from Guildford, late at night, upon a journey involving both city road conditions and highway driving. When he left the motorway at Peats Ridge Road he continued to drive despite being so tired that, within what can only have been two or three minutes of taking the exit, he fell asleep at the wheel of a moving car. He must have been aware of his acute level of tiredness from a point before falling asleep for the first time, but drove on nevertheless. In doing so the respondent subjected his passengers and other road users to a high level of risk, a risk which sadly manifested. 3. As was noted in R v Taylor [2006] NSWCCA 7, at [33]: "The consequences of people with a diminished capacity to control their actions in driving a motor vehicle are apparent almost every day. Drowsiness for whatever reason is a common cause of accidents. Those accidents can be, and often are, catastrophic, […]." 1. The respondent's decision to drive at all, but particularly to continue to drive as he entered Peats Ridge Road, represents more than a fleeting error of misjudgement involving low moral culpability; rather, the misjudgement was a serious one, and it was maintained over some time and many kilometres before the first sleep incident occurred, and thereafter until the fatal crash. 2. The level of moral culpability involved is higher than just above that attributable to momentary inattention, and to some not inconsiderable extent. General Deterrence 1. In sentencing for offences of dangerous driving occasioning death or grievous bodily harm, the need for strong denunciation and general deterrence has always been recognised as very important. Indeed, the primacy of general deterrence is such that, ordinarily, it outweighs the remorse or rehabilitation of an offender: R v Paul Musumeci (Court of Criminal Appeal (NSW), 30 October 1997, unrep) per Hunt CJ at CL. 2. That is because of the prevalence of the activity of driving, and the terrible consequences that can flow from a failure by a driver in the management of a motor vehicle. Almost every adult in our community drives; any driver can commit an offence of dangerous driving, manifesting in death or severe injury. It is important that all drivers be deterred from driving dangerously by the sentences imposed on those who transgress. 3. The sentence imposed upon the respondent is one that fails to adequately reflect the substantial need for general deterrence. Totality 1. The Crown submits that the aggregate sentence of 2 years imprisonment to be served by an intensive corrections order ("ICO") is so low as to indicate that the degree of partial accumulation of the indicative sentences failed to reflect the total criminality of the offending, including the discrete harm suffered by each victim. 2. In R v Janceski [2005] NSWCCA 288 Hunt AJA considered questions of accumulation and concurrency in circumstances where more than one offence arose from one act by an offender. At [21] and [23] he observed, "21 The other sub-category is where the one action of the offender causes a number of people to be injured and where separate charges are laid in relation to each victim. … 23 In a case falling within [this sub-] category, separate sentencing should usually be fixed which remain partly concurrent and partly cumulative, each sentence being appropriate to the existence of only one victim and the aggregate of the sentences reflecting the fact there are multiple victims resulting from the same action by the offender. The extent to which there should be an overlap and the partial accumulation will depend on what is required to represent the totality of the criminality involved in the one act of the offender." 1. That principle was recently confirmed in Silvestri v R [2016] NSWCCA 245 at [50] – [52]. 2. A degree of accumulation is warranted in cases such as this to reflect the catastrophic consequences of the respondent's act, being the loss of two lives, and the infliction of severe injury to a third person. That is so regardless of the forgiveness expressed by the surviving passenger, and the families of the deceased, a feature not relevant to the exercise of the sentencing discretion in this or any other regard. 3. It may be that the level of accumulation of sentence was determined by a desire to confine the sentence to one of no more than 2 years imprisonment, thus permitting consideration to be given to an intensive corrections order. Such an approach would be an error, since it is necessary that the length of any sentence is fixed prior to considering the manner in which it is to be served: R v Merillo [2017] NSWCCA 173 at [77]; R v Begbie [2001] NSWCCA 206; (2001) 124 A Crim R 300 at [34]. 4. That two sentences of 18 months imprisonment, and one of 11 months imprisonment, could result in an aggregate sentence of 2 years is in my opinion conclusive of inadequacy in the degree of accumulation, resulting in a sentence which fails to reflect the grave harm done to three individuals, as well as the community. Manifest Inadequacy 1. I have concluded that this was not a case which involved momentary misjudgement or some level of judgement error only very slightly above that. Rather, it involved the respondent in making, and then continuing in, over some time and distance, a serious miscalculation in circumstances where his own feelings of tiredness, particularly from the commencement of his journey along Peats Ridge Road, must have provided a clear warning to him of the dangers of driving. The consequence of persisting in driving in an acutely fatigued state was the death of two people and the serious injury of another. 2. I have also concluded that the aggregate sentence fails entirely to provide a deterrent to others who might be tempted to drive when fatigued; and that the degree of accumulation was inadequate to reflect the gravity of the offences. 3. The legislature has always placed a premium upon human life, and the taking of a human life by driving a motor vehicle dangerously is to be regarded as a crime of seriousness requiring a sentence which reflects that seriousness. 4. In my opinion, and even having regard to the respondent's compelling subjective case, an ICO of 2 years was wholly inadequate to reflect the gravity of the respondent's crimes, and falls outside the range of sentence that could be justly imposed. 5. The respondent is a young man of whom Hunt CJ at CL could have been speaking when he observed, in R v Paul Musumeci, "[…] sentencing in this type of case presents a particularly difficult task. They are almost always sad cases for everyone involved. It is never easy to send a youthful person of good character to gaol but, where it is appropriate, it is something which must be done […]." The Residual Discretion 1. The Crown having surmounted the first hurdle to its appeal, that of error, it is necessary to consider the second - has the Crown negated any reason why the residual discretion of the Court not to interfere should be exercised: CMB v The Attorney-General for New South Wales [2015] HCA 9; 317 ALR 308; citing R v Hernando (2002) 136 A Crim R 451; [2002] NSWCCA 489 at 458 [12]. 2. As McCallum J says at [55], the case presented by the respondent to the sentencing court and to this Court is a powerful one. The respondent is a young married man with two children and a third expected shortly. The work he does on the farm on which he and his family and others live is essential to the capacity of the farm to continue operating. He is of excellent character and there is no realistic prospect that he will ever offend against the criminal law again. 3. The respondent deposed to this Court that he is terrified of going to gaol and fears violence. He has expressed concern for his mental well-being, referring to the adverse impact on his health caused by notification to him of the Crown's appeal. 4. Whilst these are all features that can evoke considerable sympathy, many offenders appearing for sentence with respect to offences of dangerous driving causing death or grievous bodily harm share them. A strong subjective case is not unusual, and not a basis upon which to decline to intervene to correct error. Nor is fear of imprisonment, whilst entirely understandable and no doubt justified, a feature militating in favour of exercising the Court's residual discretion. Many offenders facing sentence for serious crimes will fear prison, particularly where, as is often so in cases of dangerous driving, the offender is a person of good character, without any experience of a custodial environment. 5. The feature of the applicant's case that has persuaded me that the Court should not intervene is the fact that the respondent has completed a significant portion of the work component of the ICO imposed upon him. A reference before the Court, to be considered in the event of resentence, made it clear that the respondent has diligently applied himself to the unpaid work he is required to do and has, in the relatively short period between the date upon which he was sentenced, 1 June 2017, and the hearing of this appeal, already undertaken a significant part of the work that will be asked of him during the whole of the ICO. 6. In such circumstances I would, in the exercise of the Court's residual discretion, decline to intervene and re-sentence the respondent. 7. The role of the Court in laying down principles for the guidance of sentencing courts can be met by an indication of the sentence I would have imposed if proceeding to resentence the respondent. 8. Like the sentencing judge, I would have imposed an aggregate sentence pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW). The aggregate sentence I would have imposed for two counts of dangerous driving occasioning death, and one of dangerous driving occasioning grievous bodily harm, and importing a degree of accumulation, is one of 3 years and 6 months imprisonment, with a non-parole period of 2 years and 3 months, making a finding of special circumstances on the basis of the respondent's fragile psychological state. 9. For each count of dangerous driving occasioning death the indicative sentence is one of 1 year and 10 months, (having applied a discount of 25% to reflect the utilitarian value of the pleas, and rounding down the resulting figure). For the remaining count of dangerous driving occasioning grievous bodily harm the indicative sentence is one of 1 year and 1 month, again allowing for the discount on sentence and rounding the resulting figure down. ********** Endnote 1. See R v Jurisic (1998) 45 NSWLR 209. 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: 28 September 2017