Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: R v Shashati [2018] NSWCCA 167 Hearing dates: 27 June 2018 Decision date: 03 August 2018 Before: Basten JA at [1]; Wilson J at [67]; Lonergan J at [68] Decision: (1) Allow the Director's appeal and set aside the sentence imposed in the District Court. (2) Resentence the respondent as follows: (a) Impose a sentence of imprisonment for 6 years comprising a non-parole period of 3 years 3 months and a balance of the term of 2 years 9 months; (b) The sentence commenced on 6 April 2018 and will expire on 5 April 2024; (c) The non-parole period expires on 5 July 2021, which is the date on which the offender is first eligible for release on parole. Catchwords: SENTENCING – aggravated dangerous driving causing death – whether episodes of erratic driving before accident relevant to assessment of objective seriousness – manifest inadequacy SENTENCING – prosecution appeal against inadequacy of sentence – aggravated dangerous driving causing death – sentence manifestly inadequate – discretion to intervene – importance of adequacy and consistency of sentencing with respect to dangerous driving offences Legislation Cited: Crimes Act 1900 (NSW), s 52A Criminal Appeal Act 1912 (NSW), s 5D Cases Cited: Bombardieri v R [2010] NSWCCA 161 Gommesen v R [2012] NSWCCA 226; 62 MVR 196 Hei Hei v R; R v Hei Hei [2009] NSWCCA 87; 52 MVR 473 Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255 R v Elkassir [2013] NSWCCA 181; 233 A Crim R 411 R v Jurisic (1998) 45 NSWLR 209 R v Millwood [2012] NSWCCA 2 R v Ryan [2003] NSWCCA 202; 141 A Crim R 403 R v Scott [2003] VSCA 55; 141 A Crim R 323 R v Whyte (2002) 55 NSWLR 252; [2002] NSWCCA 343 R v Wright [2013] NSWCCA 82; 229 A Crim R 245 Regina v Ammar Elrifai [2002] NSWCCA 496 Regina v David Berg [2004] NSWCCA 300; 41 MVR 399 Regina v Manok [2017] NSWCCA 232; 81 MVR 427 Smith v R [2011] NSWCCA 290 Category: Principal judgment Parties: Director of Public Prosecutions (Appellant) Robert Gawdat Shashati (Respondent) Representation: Counsel: Mr D Kell SC/Mr M Pulsford (Appellant) Ms G Bashir SC (Respondent) Solicitors: Office of Director of Public Prosecutions (Appellant) Anderson Lawyers (Respondent) File Number(s): 2015/88328 Decision under appeal Court or tribunal: District Court Jurisdiction: Criminal Date of Decision: 06 April 2018 Before: Maiden SC DCJ File Number(s): 2015/88328 Judgment 1. BASTEN JA: On 6 April 2018 the respondent was sentenced in the District Court on a charge of aggravated dangerous driving occasioning death, being an offence under s 52A(2) of the Crimes Act 1900 (NSW). The sentencing judge (Maiden SC DCJ) imposed a non-parole period of 2 years 3 months with an additional term of 2 years 3 months, giving an overall sentence of 4 years 6 months. The sentence was fixed to commence on 6 April 2018, with the non-parole period expiring on 5 July 2020. 2. On 19 April 2018 the Director of Public Prosecutions gave notice of an appeal under s 5D of the Criminal Appeal Act 1912 (NSW), on the ground that the sentence was manifestly inadequate. On 7 June 2018 the Director added three further grounds in the following terms: (1) The sentencing judge erred in failing to take into account the offender's driving prior to the accident. (2) The sentencing judge erred in failing to take into account the length of the journey during which others were exposed to risk. (3) The sentencing judge erred in assessing the objective seriousness of the offending as being at the mid-range of objective seriousness. 1. For the reasons explained below, the Director has made good his grounds of appeal in two specific respects and in respect of manifest inadequacy. It is therefore necessary for the Court to consider whether the case warrants intervention and, if so, to resentence the offender. Material facts (a) circumstances of the accident 1. Shortly after 4pm on Wednesday, 21 January 2015 the offender, Robert Shashati, was driving south on Medowie Road, Williamtown, some 300 metres before the intersection with Nelson Bay Road. The offender was driving a maroon coloured Nissan Pathfinder 4-wheel drive vehicle. His passengers were his teenage son and three nephews. He was taking the boys to ride quad bikes in the sand dunes. 2. Medowie Road consisted of one lane in each direction. There was heavy traffic in both directions. The offender decided to pass the slow moving traffic by going off the road on the left and travelling along the bitumen shoulder, with one wheel on the grass verge. The offender proceeded at some 80km/h, until he hit a drainage ditch causing the vehicle to stop instantly. One of the boys in the car, Marcus Shashati, suffered severe neck and closed head injuries in the accident. He was taken by ambulance to John Hunter Hospital, but was pronounced dead on arrival. A crash investigator, Gavin Lennon, employed by the NSW Police Force investigated the accident scene on the evening of the accident. He gave evidence that the vehicle became airborne just before reaching the ditch and was travelling at a speed between 67 and 114km/h, the most likely speed being 82km/h. 3. Various witnesses described the offender's vehicle passing at significant speed on the grass verge to the left of the road. The investigation demonstrated that the car had travelled about 46 metres on the grass area after leaving the bitumen, before reaching the drainage ditch. 4. One of the brothers of the deceased suffered minor lacerations to the back of his head; the remaining passengers, including the offender's son, did not require medical attention. The fatal consequence for the deceased may have been due to the fact his seatbelt was a lap belt with no shoulder restraint. 5. Blood analysis on a sample of the offender's blood taken at 6.05pm on the evening of the accident revealed 0.32mg/L of methylamphetamine. In a record of interview, the offender admitted he had taken ice in the past, but not in the five days prior to the accident. A clinical forensic pharmacologist employed by the New South Wales Police Service, Dr Judith Perl, gave evidence based on the reading from the blood sample that the drug had been consumed between 10am and 12pm that day. She also said that readings from fatal overdoses had a mean value of 0.23mg/L and that readings above 0.2mg/l are considered potentially fatal. 6. In cross-examination, she agreed that her statistics derived from research in the 1980s and that more recent studies reported substantially higher non-fatal readings. She also agreed that the offender's reading could not readily be correlated with an opinion as to "very substantial impairment" in relation to driving. However, her evidence, in combination with descriptions of the offender's driving, was accepted by the jury as the basis for finding the pleaded circumstance of aggravation, namely that the accused's "ability to drive was very substantially impaired by the fact that the accused was under the influence of a drug (other than intoxicating liquor)". [1] 7. On the sentence hearing, the offender admitted having taken methylamphetamine shortly before 2 pm that afternoon. (b) earlier episodes of dangerous driving 1. There was a live issue at the sentencing hearing as to whether the Court was entitled to take into account the driving of the offender prior to the accident. The sentencing judge had not conducted the trial; the trial judge, the late Judge McLoughlin, had died before the offender was sentenced. In his judgment on sentence, Judge Maiden said: [2] "In the trial, his Honour Judge McLoughlin allowed evidence of observation of the offender driving his vehicle some hours earlier, but only to assist the experts in forming an opinion. It was not evidence that I can take into account as to the manner of driving." 1. As the Director challenged that approach as erroneous, it is necessary to set out the relevant evidence. 2. The evidence was summarised in the prosecution facts on sentence in the following terms: "a. At approximately 1pm, Ms Breese was driving along Medowie Road when she became aware of a Maroon vehicle approximately three (3) car lengths behind her. She saw the vehicle undertake a 'sharp, quick move' to the right and accelerate past her. The vehicle straddled the middle unbroken line as it approached the intersection. The vehicle then swerved to the left, and re-entered the line of traffic, without indicating or reducing its speed. b. At approximately 1:30pm, while travelling South on Nelson Bay Road, Ms Bradbury heard a car engine revving loudly with loud music. She saw a burgundy 4WD travelling 'very fast'. The vehicle undertook her in the left lane, before accelerating away. A short time later, she saw the same vehicle veer sharply to the left and travel on the gravel verge. It continued to undertake a number of cars on the left, before braking heavily and veering right, back into the lane of traffic. Ms Bradbury estimates that the distance the vehicle travelled on the gravel verge was [about] 100 metres. A little further down the road, Ms Bradbury again saw the Offender leave the sealed road and travel on the gravel verge for a distance of approximately 100 metres and undertake a number of cars before returning to the sealed road. Ms Bradbury typed the number plate of the Offender's vehicle into her phone. c. At approximately 2:30pm, while travelling South on Nelson Bay Road, Ms Turner heard a car horn being 'honked' a number of times behind her. She looked in her mirror and saw a maroon 4WD travelling on the gravel verge to the left of the sealed road. The vehicle was travelling at speed, but had to slow when it approached a concrete roadworks barrier, at which time it 'fishtailed' back into the line of traffic, behind Ms Turner. She could see that the driver was agitated and could hear him yelling 'FUUUCKKK' the whole time. As they passed the roadworks, she saw the vehicle again drive on to the gravel verge and undertake three (3) cars before veering back onto the road. Ms Turner estimated that the Offender was driving on the gravel verge for approximately 500 metres. She contacted 000 and provided them with a description of the vehicle. She saw the vehicle a short time later at 'Pit Stop' service station, and again contacted 000 to provide them with an update." 1. The prosecutor agreed that incidents (b) and (c) could have been the same conduct with one, or both, witnesses mistaken as to the time. 2. A brother of the deceased, Jake Shashati recorded an interview with police in March 2015, some two months after the accident and shortly after he had turned 15. He explained that the party had left the café, where they had had a late breakfast, at about 2pm to go quad bike riding. He believed their session had been booked for 2.30pm. They had initially thought the quad biking area was "around the corner", [3] but when they realised that it was a 45 minute trip, they were running late. Jake Shashati then described the events that followed: [4] "So, that's when we took off to go quad biking. And we were running late, and my uncle was, he was driving on the wrong side of the road, … we got the call from the lady who works at the quad biking stand and said, The 4 o'clock people are here, and obviously, you're running late, so is it O.K. if we swap your sessions over? And they said, Yeah, that would be great, thank you. So, we ended up doing that, and, so we slowed down, we were just driving casually, we weren't in a hurry any more, and we pulled over at a servo, we just got a couple of drinks …." 1. The party had a rest break at a service station and then proceeded to the quad biking office to sign papers. Whilst at the office, there was an incident in the car parking area, involving the offender's son Jeremiah being told to move by a driver wishing to park. Jake described Jeremiah as having "overreacted", causing the offender to become "very angry". [5] The owner of the premises showed the CCTV footage of the incident to the offender, demonstrating that his son had exaggerated what had happened and the stranger had simply asked him to "please move so I can park." Jake was asked how the offender's mood was after that and said: [6] "Still very angry, angry at Jeremiah. … And telling him a full, a story about how he could've gone to goal, 'cause he was gunna stab somebody that day, he was threatening to Jeremiah that he was gunna stab the man, and, you know, just telling Jeremiah not to lie, and, very angry." 1. The party then left to go to the quad biking area, but misread the map they had been given and turned left instead of right, so that they had to backtrack. Jake continued to describe the events in the following terms: [7] "And then my uncle tried to put the phone on his GPS up to take him to the, put the address in …. take him there. And his phone was also taking him the wrong way, and this was when he started to get really angry, and he pulled over and he threw his phone. And as he threw his phone, it's hit me on the leg …. He then picked up the phone, took the SIM card out and asked me to hold it, and then he snapped the phone in half and threw it out the window. And then he asked if he could borrow his wife's phone…. He started following that, and it took him in a big circle, which made him, again, he was getting angrier and angrier. It took us in a big circle, but eventually, it got us on the right track, and we were going the right way. … And we were running a bit late, and it was about 4.00, it was about 4.05 when he went off the road onto the grass, he veered off the road onto the grass, trying to overtake traffic, he actually has veered to the left, and, well, it felt instant, but, I'm not sure how long we were on the grass for, but … it felt as if the second we went on the grass was the second that we saw the drainage pipe." 1. From the time when the offender took methylamphetamine in the middle of the day, the offender was driving the boys between 2pm and 4pm, less the time when they had a rest break and were at the office where they filled in the relevant papers relating to the quad biking. It appears that the planned trip was in the order of 30 minutes, although the actual trip involved driving for a significantly longer period. (c) evidence on sentence 1. In addition to the material referred to above, the judge was provided with a copy of the offender's criminal record and his traffic record. Apart from a goods in custody charge dating from December 2006, the criminal record contained three entries for driving whilst his licence was suspended, in October 2002, September 2006 and April 2014. The traffic record contained more than 40 offences committed between the time when he obtained an unrestricted licence in January 2002 and January 2015. Most of the offences related to speeding, but included fines for disobeying traffic lights, not wearing a seatbelt, driving whilst unlicensed, disobeying a traffic signal and using a mobile phone. 2. A number of favourable character references were tendered on behalf of the offender; he also relied upon a report from Dr Olav Nielssen, consultant psychiatrist. Ground 1: offender's driving prior to accident 1. In the passage already noted, the sentencing judge stated that "evidence of observation of the offender driving his vehicle some hours earlier" could not be taken into account. After referring to the prosecutor's submission that it was available to be taken into account, the judge stated: [8] "I am unable to take into account the factual scenario that occurred from observations of the offender earlier in the day. I can only find that he diverted onto a grass verge, he travelled at 82 km/h and that he had not made any allowance for the possibility of a drain or other danger being present. That course of action was affected by his drug affected state. The evidence by the offender before me that he did in fact consume methamphetamine at lunch confirms the opinion of Dr Perl." 1. The sentencing judge did not explain the basis for that conclusion, nor is it clear from the submissions on the appeal why such a constraint was adopted. Three propositions are relevant in this regard. First, it is not in doubt that, with respect to offences under s 52A, the focus of the jury in relation to guilt turns on the character of the driving by the accused in the circumstances occasioning the death of another person. Similarly with respect to an offence under s 52A(2), the circumstance of aggravation must be established at the time of the fatal impact. 2. Secondly, driving at some point in time prior to the point of impact may be relevant to a finding as to the manner of driving (or some other element of the offence) at the time of the fatal impact. As explained by Winneke P in R v Scott: [9] "Whether the lack of care and attention in driving at one point can be logically probative of lack of care and attention at another point must ultimately depend upon whether the two points are so closely related in time, distance and circumstance [as] to allow the tribunal of fact to draw an inference that the manner of driving at the second point was of the same character as the manner of driving at the first point." 1. Thirdly, and importantly for present purposes, evidence relevant to the moral culpability of the offender is not to be narrowly confined. That proposition is illustrated by many cases, including the leading authority of this Court of R v Whyte. [10] Thus, where a driver is suffering from some disability, whether due to lack of sleep, intoxication or the consumption of drugs, the history of earlier conduct, together with possible inferences as to the driver's appreciation of the circumstances in which he or she had placed himself or herself will be relevant to moral culpability in most cases. In Whyte, the offending impact occurred at 6.10pm on 8 April 2000. There was evidence that the driver had been drinking from about 11am until 5pm before driving approximately 50 kilometres to the point of impact. [11] There is no suggestion that such evidence was otherwise than admissible and highly relevant to the assessment of moral culpability for the purposes of sentencing. In R v Jurisic, [12] express reference was made to the length of the journey during which others were exposed to risk and the ignoring of warnings, together with matters which might have indicated "that the offender has abandoned responsibility for his or her own conduct." More recently, where sleep deprivation was an issue, in Regina v Manok, [13] Payne JA stated: "[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. [7] 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." 1. To similar effect, Wilson J stated: "[74] 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. … [76] 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." 1. It follows that the whole of the offender's conduct from the time he decided to take methylamphetamine before setting out with his three nephews and son, including his extended period of anger and impulsive actions, bizarrely aggressive conduct in overtaking on the inside of slow moving or stationary traffic, merely to be able to undertake a recreational activity on time and thus not waste the pre-payment, was not only relevant to the sentencing exercise, but involved matters which, once understood to be admissible, could not reasonably have been ignored. 2. Because it is not to be doubted that the sentencing judge put these matters aside in assessing moral culpability, that assessment, which is separately challenged by the Director, was inherently flawed. Grounds 2 and 3: length of journey and objective seriousness of offending 1. There is a clear connection between the first and second grounds. Thus, it is an essential element of the offender's driving prior to the accident that the relevant driving took place over a lengthy period. The journey commenced at about 2 pm and concluded at the time of the accident, 4.05 pm. There were two breaks, one for refreshments at a service station, the other to complete forms at the quad bike office. The length of the journey was at least 30 km. 2. In fact, ground 2 constitutes a specific element of the first ground. Taken together they form the basis of the Director's challenge to the adequacy of the assessment by the sentencing judge of the objective seriousness of the conduct, as identified in ground 3. The Director submitted that the objective seriousness of the offending was high, rather than in the mid-range, as found by the sentencing judge. 3. Of the factors identified as aggravating factors in Whyte, the following matters are encompassed within the issues identified by these grounds, namely: 1. number of people put at risk; 2. element of speed; 3. degree of impairment resulting from ingestion of methylamphetamine; 4. erratic and aggressive driving; and 5. length of journey during which others were exposed to risk. [14] 1. These factors are conveniently addressed under the general ground of manifest inadequacy. General ground: manifest inadequacy 1. The maximum penalty for the aggravated form of dangerous driving occasioning death under s 52A(2) is imprisonment for 14 years. 2. In Whyte, in identifying a guideline for typical offences against s 52A(1) and s 52A(3), Spigelman CJ stated: [15] "Where the offender's moral culpability is high, a full time custodial head sentence of less than three years (in the case of death) … would not generally be appropriate." 1. The typical case identified by the Chief Justice was as follows: "[204] A frequently recurring case of an offence under s 52A has the following characteristics. (i) Young offender. (ii) Of good character with no or limited prior convictions. (iii) Death or permanent injury to a single person. (iv) The victim is a stranger. (v) No or limited injury to the driver or the driver's intimates. (vi) Genuine remorse. (vii) Plea of guilty of limited utilitarian value." 1. Of these characteristics, the respondent satisfied only (iii) and (vi); there was a finding of genuine remorse. Although the head sentence in the present case (4 years, 6 months) exceeded the guideline, there were factors that rendered that result necessary. The applicant was of a mature age (35 years), he had a long record of driving offences, the victim was a nephew in his care, three other boys in his care (including his son) were put at serious risk, and there was no plea. Although the guideline did not envisage a plea at the earliest opportunity, a three year sentence would reflect the present sentence with a 25% discount. 2. Given the period of continuing angry and aggressive behaviour, from lunchtime until 4pm, the moral culpability must be assessed as in the high range. It follows that the assessment in the District Court was erroneously low. 3. Further, having regard to the sentences imposed for offences against s 52A(2) since 2002 (almost all of which followed pleas of guilty), it is apparent that the sentence imposed is well below the general range. 4. The Director referred to four cases in which significantly heavier sentences have been imposed. The earliest, Hei Hei v R; R v Hei Hei, [16] involved an offence under s 52A(2) in which the offender's car left the road when he was driving whilst intoxicated, as a result of which his stepdaughter, a passenger in the car, died of her injuries. The offender was aged 38 years at the date of the offence and had taken steps thereafter towards rehabilitation, including abstaining from alcohol. A sentence of 5 years with a non-parole period of 3 years included a discount of 30% for a plea of guilty, giving a starting point of 7 years. 5. In Bombardieri v R, [17] an offender aged 20 years, driving at excessive speed, crossed into the path of oncoming cars whilst seeking to escape a police pursuit. Again there was remorse, good prospects of rehabilitation and a guilty plea. He was resentenced by this Court to a term of 9 years with a 5 years 9 month non-parole period. The discount for a plea was about 16.7%. 6. In Smith v R, [18] a 30 year old male offender, substantially impaired by alcohol, sped through a red light before landing in a ditch, killing his passenger (his girlfriend). Following an early guilty plea (discount 25%), he was sentenced to 7 years imprisonment with a non-parole period of 5 years 3 months. 7. In Lehn v R, [19] a 24 year old offender, driving whilst substantially impaired by drugs in a stolen car, collided with a pedestrian. Following an early guilty plea allowing a discount of 25%, he was sentenced under s 52A(2) to imprisonment for 8 years 3 months with a non-parole period of 5 years. 8. Senior counsel for the respondent correctly noted that there is a significant degree of variation amongst the sentences imposed for offences under s 52A(2). With respect to sentences at the higher end, counsel noted the statements in Bombardieri v The Queen (of both Beazley JA and Buddin J) that sentences should not be imposed which would be "more appropriate for an offence falling into the motor/manslaughter category of offence." [20] In that case a sentence of imprisonment for 10 years was reduced to 9 years. The reasoning in Bombardieri is also of assistance in that it extracted a passage from R v Ryan [21] reviewing a range of earlier sentences with respect to the same offence. In Ryan itself a sentence of 6 years imprisonment was imposed with a 4 year non-parole period. 9. After reviewing a range of sentences, Grove J concluded in Ryan: "[62] The preponderance of sentences at the upper range of impositions involve the aggravating factor of prior voluntary ingestion of alcohol or drugs or involve multiple available factors of defined aggravation or multiple victims. That is not the present case." The cause of the accident was excessive speed. The offender had been driving at some 140km/h over an incline, where the road on which he was travelling intersected with another street controlled by traffic lights. The vehicle in his lane was stationary at a red light, causing the offender to brake hard, leaving a skid mark approximately 64 metres in length, but still colliding with the rear of the stationary vehicle. That vehicle was forced into oncoming traffic, resulting in a further collision in which its driver was killed. The offender ran from the scene of the crime. 1. The offender had been sentenced to a term of 7 years 6 months imprisonment, following a 25% discount for an early plea of guilty. The starting point was therefore 10 years imprisonment. The sentence was reduced on appeal to 6 years with a non-parole period of 4 years, indicating a starting point of 8 years. The offender's record for driving offences was described as "deplorable", although it was not as lengthy as that of the applicant (the offender in Ryan was 24 years of age at the time of the offending). 2. In Bombardieri itself, the offender had left the Gold Coast intending to drive to South Australia, where his parents resided and where he had grown up. He had travelled almost 280km before reaching the location at which the fatal collision took place. Prior to the collision, he had been observed travelling at high speed, overtaking on the nearside of the highway, crossing double unbroken lines and on occasion coming into the path of oncoming vehicles. At one stage he was captured by a speed camera driving at 151km/h through a 100km/h zone. Some 45 minutes later, he was detected by police radar travelling at 156km/h and a police car gave chase. After evading police directions to stop on two occasions, he continued southward along the highway. Whilst overtaking by crossing unbroken lines he forced a vehicle off the road, so that the driver lost control and collided with an oncoming semi-trailer, being killed instantly. 3. Bombardieri and two other cases were referred to by Bathurst CJ in Lehn v R. The offender Lehn was travelling in a stolen vehicle through Campbelltown at a speed not less than 94km/h in a 50km/h zone when he lost control of his vehicle on a bend, the vehicle travelling onto the incorrect side of the road, thence on to the grassed nature strip and colliding with a pedestrian, who died in hospital from the injuries suffered. The vehicle was wrecked, but the offender escaped through a rear window and ran off. His driving was substantially impaired as a result of ingesting methylamphetamine. The offender was 24 years of age with a criminal record. He was sentenced in the District Court for the offence under s 52A(2) to 10 years imprisonment with a non-parole period of 7 years. The sentence was reduced on appeal to 8 years 3 months, with a 5 year non-parole period. 4. In the course of his reasons, the Chief Justice considered the sentences imposed in Bombardieri, R v Wright [22] and Smith v R. With respect to Wright, the Chief Justice said: "[98] In R v Wright …, a sentence of imprisonment of 9 years and 6 months with a non-parole period of 5 years and 9 months was held not to be manifestly excessive. The applicant in that case was convicted of aggravated dangerous driving causing death and a second count of aggravated dangerous driving causing grievous bodily harm. The matters of aggravation were driving the vehicle more than 45 km/h over the speed limit and having a blood alcohol level of at least 0.157 g of alcohol per 100 ml of blood. One passenger in the car, a 16 year old boy was killed whilst the other, a 14 year old girl was seriously injured. The applicant was sentenced to a fixed term of 3 years, commencing on 24 May 2012 for the second count, and 9 years with a non-parole period of 5 years and 3 months, commencing on 24 November 2012, for the first count, the overall sentence thus being 9 years and 6 months with a non-parole period of 5 years and 9 months. [99] The applicant had an appalling driving record. …" 1. With respect to Smith, the Chief Justice stated: "[102] The third case referred to by the applicant was Smith v R …. In that case, the offender, who was aged 30 at the time of the offence, was sentenced to imprisonment for 8 years with a non-parole period of 6 years. On appeal, the sentence was reduced to 7 years with a non-parole period of 5 years and 3 months. The offender had driven his utility at speeds of between 80 and 100 km/h in a 60 km/h zone. The vehicle went through a red light and shortly thereafter was found upturned in a ditch. The applicant's girlfriend was trapped in the vehicle and died at the scene. The applicant had a blood alcohol reading of 0.188. [103] Blanch J, who delivered the judgment of the Court, noted that the sentence was significantly higher than that specified in the guideline judgment of Whyte and, after referring to a number of cases including Bombardieri, reduced the sentence to 'maintain a consistency of approach'." 1. As counsel for the respondent noted, there are other cases where lesser sentences have been imposed in similar circumstances. In Regina v Ammar Elrifai, [23] the offender unsuccessfully challenged a sentence of 4 years imprisonment with a non-parole period of 2 years. The offence occurred whilst he had been travelling at about 40km/h on a suburban street, but driving in a manner which caused police to suspect he was under the influence of alcohol and causing them to activate flashing lights and a siren to tell him to stop. The offender accelerated harshly and sped away, driving through a red light at a speed in excess of 100km/h in a 60km/h zone. Crossing the Great Western Highway, again through a red light, the vehicle became airborne for approximately 26 metres, the offender lost control and collided with a tree at the edge of the road. His 25 year old male passenger was killed in the collision. 2. The offender suffered significant injuries in the accident, although no permanent impairment. He had no prior criminal record and was assessed as having good prospects of rehabilitation. The trial judge allowed a 30% discount for the plea of guilty. Accordingly, the starting point for the sentence was 5 years 8 months. 3. In Regina v David Berg, [24] an offender challenged a sentence of 5 years imprisonment with a non-parole period of 3 years. The offender was driving a vehicle on a country road when it left the road and collided with an earth embankment causing the vehicle to roll. The deceased, who was not wearing a seat belt, was partly ejected from the vehicle as it rolled and died as a result of injuries when the vehicle crushed her. The vehicle was in poor condition, and the offender was very substantially impaired in his ability to drive by alcohol. As a result of an early guilty plea, he was accorded a discount "towards the top of the range" which was not specified, but which must have been in the order of 25%. Although he had a criminal record, he also had significant subjective factors in his favour. The sentence was reduced by this Court to imprisonment for 4 years, indicating a starting point of some 5 years 4 months. 4. Two other cases involved sentences of a similar order, namely R v Millwood [25] and Gommesen v R. [26] 5. The third case relied upon by the respondent reflected a significantly lower sentence. In R v Elkassir, [27] the trial judge imposed a sentence of 3 years imprisonment, with a non-parole period of 12 months. The Director challenged the adequacy of the sentence. As succinctly explained by Emmett JA: "[2] On the evening in question, the respondent and three friends were at a poker tournament at a hotel in Condell Park. The respondent and one of his friends left in the respondent's car. The other two left in a second car. Shortly after leaving the hotel car park, the two cars drew together. The respondent attempted to incite the driver of the other car to a race. The other driver declined. The respondent then followed the other car for a short distance until just before the crest of a hill. As he approached the crest of the hill, the respondent passed the other car, at a speed of around 110 or 115km per hour, in a zone where the limit was 60km per hour. As the respondent's car reached the crest of the hill, he lost control and his car went onto the near side footpath and collided with a bus shelter and a wooden utility pole. As a result of the impact, the respondent sustained quite severe injuries and his passenger suffered fatal injuries. [3] In assessing moral culpability on the part of the respondent, the sentencing judge took into account the fact that there was an element of competitive driving or showing off in the respondent's conduct that led to the fatal collision. The respondent accepted that, at the time of the collision, he was driving at a speed that was more than 50km per hour in excess of the applicable speed limit. That, of course, is the basis upon which he was charged with aggravated dangerous driving, because the car was being driven at a speed that exceeded the speed limit by more than 45km per hour." 1. The offender was 18 years of age at the time of the offence and had relatively favourable subjective circumstances. There were a number of factors which persuaded the Court, in the exercise of its discretion, not to intervene. The trial judge allowed a discount of 20% for the plea, giving a starting point of 3 years 9 months. The loss of control appears to have been a function of the inexperience of the offender in driving at speed. 2. While it may be accepted that this review of the appellate case law suggests a range of sentencing for offences under s 52A(2), only the last case falls within the range adopted by the sentencing judge in the present matter, so far as the overall sentence is concerned. However, the circumstances of that case make it readily distinguishable from the present case. Otherwise, the general pattern of sentencing supports a conclusion that the sentence imposed in the present case was manifestly inadequate. Discretionary considerations 1. There is no doubt that the Director acted expeditiously in giving notice of his intention to appeal and in preparing for an appeal to be heard within three months of the date of sentencing. As a result, the offender has served but a short period of his non-parole period. He is not approaching eligibility for release. 2. In Whyte, Spigelman CJ stated: "[145] In my opinion, the numerical guideline contained in Jurisic has proven to be significant in ensuring both the adequacy of sentences and consistency in sentencing for this offence in New South Wales. If the numerical guideline were removed then the pattern of inadequacy and inconsistency would, in my opinion, quickly re-emerge. Section 52A … is an offence particularly likely to be affected by personal sentencing philosophy resulting in a wide divergence of outcomes. Some sentencing judges find it very difficult to accept that a person of good character who is unlikely to re-offend should be sent to gaol. However, Parliament has made it quite clear that the injuries occasioned by driving dangerously and, no doubt, the prevalence of the offence, require condign punishment." 1. This passage identified both adequacy of sentences and consistency in sentencing as ongoing issues with respect to dangerous driving with fatal effects. The Chief Justice in Whyte continued: "[146] As I emphasised in Jurisic (e.g. at 216B-C, 220C) there is tension between maintaining the discretion essential for individualised justice, on the one hand, and guidance to ensure consistency in sentencing decisions, on the other hand. The basic principle is that of equality of justice. Like cases must be treated alike. Unlike cases must be treated differently. The first statement requires consistency. The second statement requires individualised justice. In my opinion, numerical guideline judgments have a role to play in achieving the ultimate goal of equality of justice in circumstances where, as a matter of practical reality, there is tension between the principle of individualised justice and the principle of consistency." 1. If the nature of the error in this case involved no more than a disputable judgment as to the proper weight to be given to subjective circumstances of the offender, intervention might well be inappropriate, even if the sentence were perceived to be manifestly inadequate. However, that is not so; rather, the inadequacy resulted from a misapplication of principle in assessing the objective seriousness of the offending. This is a matter of importance with respect to the regular administration of justice. 2. Further, the cases relied upon by counsel for the respondent suggest that there are continuing discrepancies in sentencing for offences arising from fatal driving accidents, warranting intervention by this Court to give guidance in order to achieve a higher level of consistency. 3. These factors in combination support the view that this is a case in which the Director's appeal should be allowed and the Court should resentence the offender. Resentencing 1. The surrounding circumstances of the offending have been set out above. The subjective case was described as "strong" by the sentencing judge. Numerous character references were obtained from members of the congregation of the church he attended, although those attendances appear mainly to have post-dated the accident. It is, perhaps, a reflection of his reformed character, but there is no doubt, as explained by Father George Nakhil of the Coptic Orthodox Church at Punchbowl, that he was a "troubled man." This material, combined with the fact that this is the first custodial sentence imposed on the offender warranted a finding of special circumstances and some diminution in the non-parole period as a proportion of the overall sentence. 2. The sentencing judge found that it was "unlikely that he would reoffend". However, his age, his drug use and the length of his record of driving offences suggest that the finding in relation to prospects of rehabilitation must be qualified. Further, the finding that his subjective case was "strong", based on his positive character references, must be qualified by knowledge of his irresponsible abuse of illegal drugs, his shocking record of driving offences and apparent disregard of the law in that regard, the high level of methylamphetamine in his blood at the time of the accident and the fact that he was the adult responsible for the care not only of his own son, but for the sons of his brother who had died some two years before the accident. 3. Although the offender had indicated a plea in relation to the lesser offence of dangerous driving causing death, without circumstances of aggravation, that concession was based on him maintaining his denial to police of taking "ice" on the day of the accident. He maintained that denial through a 10 day trial, in the face of the pharmacological evidence to the contrary. It was only at the sentence hearing that he gave evidence of drug taking around midday. The sentencing judge correctly concluded that he was not entitled to any utilitarian discount with respect to his sentence for the aggravated offence, following his conviction by a jury. 4. In these circumstances, and bearing in mind the need to consider the appropriate sentence with respect to the circumstances of the particular offender, I propose a sentence of imprisonment with a non-parole period of 3 years 3 months and a balance of the term of 2 years 9 months. The overall sentence is 6 years imprisonment. Orders 1. The Court should make the following orders: 1. Allow the Director's appeal and set aside the sentence imposed in the District Court. 2. Resentence the respondent as follows: 1. Impose a sentence of imprisonment for 6 years comprising a non-parole period of 3 years 3 months and a balance of the term of 2 years 9 months; 2. The sentence commenced on 6 April 2018 and will expire on 5 April 2024; 3. The non-parole period expires on 5 July 2021, which is the date on which the offender is first eligible for release on parole. 1. WILSON J: I agree with the orders proposed by Basten JA and with his reasons. 2. LONERGAN J: I agree with the orders proposed by Basten JA and with his reasons. ********** Endnotes 1. Crimes Act, s 52A(7)(d). 2. Sentencing judgment, p 4. 3. Record of interview, Q56, 23 March 2015 (which was played to the jury at the trial). 4. Record of interview, Q56. 5. Record of interview, Q61. 6. Record of interview, Q138-139. 7. Record of interview, Q68. 8. Sentencing judgment, p 5. 9. [2003] VSCA 55; 141 A Crim R 323 at [11] (Phillips and Buchanan JJA agreeing). 10. (2002) 55 NSWLR 252; [2002] NSWCCA 343 (Spigelman CJ; Mason P, Barr, Bell and McClellan JJ agreeing). 11. Whyte at [236]-[238]. 12. (1998) 45 NSWLR 209 at 231B-D. 13. [2017] NSWCCA 232; 81 MVR 427. 14. See Whyte at [216]. 15. Whyte at [229]. 16. [2009] NSWCCA 87 52 MVR 473 (McClellan CJ at CL, Buddin and Rothman JJ). 17. [2010] NSWCCA 161; 203 A Crim R 89 (Beazley JA, Buddin J and Barr AJ). 18. [2011] NSWCCA 290 (McClellan CJ at CL, Blanch and Hislop JJ). 19. (2016) 93 NSWLR 205; [2016] NSWCCA 255 (Bathurst CJ, Beazley P, R A Hulme, Schmidt and Wilson JJ). 20. Bombardieri at [55] (Buddin J); and see [19] (Beazley JA). 21. [2003] NSWCCA 202; 141 A Crim R 403 (Grove J, Ipp JA and Shaw J agreeing). 22. [2013] NSWCCA 82; 229 A Crim R 245. 23. [2002] NSWCCA 496 (Buddin J, Bell J agreeing). 24. [2004] NSWCCA 300; 41 MVR 399 (Spigelman CJ, Wood CJ at CL and Howie J). 25. [2012] NSWCCA 2 (Simpson J, Bathurst CJ and Adamson J agreeing). 26. [2012] NSWCCA 226; 62 MVR 196 (Garling J, McClellan CJ at CL and McCallum J agreeing). 27. [2013] NSWCCA 181; 233 A Crim R 411 (R A Hulme J, Emmett JA and R S Hulme AJ agreeing). Amendments 03 August 2018 - Inserting the word "period" after "non-parole" in order (2)(c). 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: 03 August 2018