Davidson v R

1. [1]

   BRERETON JA: On the evening of Saturday 1 February 2020, at about 7.50pm, seven children – Angelina Abdallah then aged 12, Sienna Abdallah then 8, Antony Abdallah then 13, Leanna Abdallah then 10, Veronique Sakr then 11, Charbel Kassas then 11, and Mabelle Kassas then 13 – who had been at a family function, were walking slowly and lawfully along the footpath of Bettington Road, Oatlands, to get some ice-cream. In a moment of time, their lives and those of their families would be shattered forever: Angelina, Sienna, Antony and Veronique were killed; Charbel was critically injured and though he survived sustained a significant brain injury with a long-term impact on his cognitive and social abilities and quality of life; Mabelle and Leanna suffered lacerations, and Leanna will have a significant facial scar.

2. [2]

   This catastrophic carnage was wrought by the applicant Samuel Davidson who, having spent the day drinking alcohol and consuming cocaine and MDMA, with a blood alcohol concentration (BAC) of 0.18%, drove his motor vehicle from his home to a service station and then back, a distance of 5.3 kilometres, at times in a menacing manner, swerving to endeavour to overtake other vehicles, at times on the wrong side of the road, at high speed, driving through a roundabout anti-clockwise on the wrong side of the road, sticking his finger up at other motorists, disobeying a red light to cross Pennant Hills Road (a major four lane highway), then reaching a speed of 133 Kph as he continued along Bettington Road, losing control as he rounded a bend and mounting the kerb, striking all seven children from behind.

3. [3]

   Mr Davidson, who was 29 years of age and of prior good character and has attention deficit hyperactivity disorder (ADHD), was immediately remorseful. He pleaded guilty, at the first opportunity, to seven offences: four of manslaughter (Crimes Act, s 18(1)(b)), one of aggravated dangerous driving occasioning grievous bodily harm (“grievous bodily harm”) (Crimes Act, s 52A(4)), and two of cause bodily harm by misconduct in charge of a motor vehicle (“actual bodily harm”) (Crimes Act, s 53). For those offences, he was sentenced in the District Court to an aggregate term of imprisonment of 28 years, with a non-parole period of 21 years. By the time he is eligible for parole – 31 January 2041 – he will be fifty years of age. In imposing the aggregate sentence of 28 years imprisonment, the sentencing judge, as required by s 53A(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW), indicated the individual sentences that would have been imposed had the applicant been separately sentenced for each offence, after allowing a 25% discount in each case for the plea of guilty, as follows:

   1. (1)

      for each of the four manslaughters, 14 years and 3 months;

   2. (2)

      for the grievous bodily harm, 6 years;

   3. (3)

      for each of the actual bodily harms, 16 months.

4. [4]

   No sentence that a court of criminal jurisdiction could impose can make good the tragedy of the loss of four young lives, the maiming of three others, and the grief and devastation to their families. The view that it calls for a sentence of utmost severity is a natural response. However, it cannot be overlooked that the applicant’s crimes are not crimes of intent. As was said by the Full Court of the Supreme Court of South Australia in R v Wooldridge: [1]

5. [5]

   Here, the tragic “happenstance” of the deaths converted offences of driving with the high range prescribed concentration of alcohol (Road Transport Act 2013 (NSW), s 110(5)) carrying a maximum penalty of 18 months imprisonment; furious, reckless or dangerous driving (Road Transport Act, s 117(2)) carrying a maximum penalty of 9 months imprisonment; and/or menacing driving (Road Transport Act, s 118(1)) carrying a maximum penalty of 18 months imprisonment, into four counts of manslaughter each carrying a maximum sentence of 25 years imprisonment.

6. [6]

   Mr Davidson applies for leave to appeal against the sentence, on grounds that:

   1. (1)

      The sentencing judge erred in holding that there was no causal link between the applicant’s ADHD and the commission of the offences; and

   2. (2)

      The sentence imposed is manifestly excessive.

7. [7]

   I have had the benefit of reading in draft the judgments to be delivered by Adamson J and N Adams J. I agree, for the reasons given by Adamson J, that ground 1 fails. But I agree with N Adams J that ground 2 should succeed, and upon resentencing I would reduce the sentence imposed in the District Court by a greater margin than would her Honour. Because the other members of the Court differ as to ground 2, and although, except as otherwise indicated below, I agree with the reasons of N Adams J, from whose judgment I have derived much assistance, it is appropriate that I state my own reasons.

Manifest excess

1. [8]

   The principles applicable to a complaint that a sentence is manifestly excessive, derived from authority, [2] were summarised in Hughes v R, [3] as follows:

2. [9]

   A finding of manifest excess reflects concealed error, in that the error may not be apparent from analysis of the remarks on sentence, but is inferred from the discrepancy of the sentence, as R A Hulme J observed in Obeid v R: [4]

3. [10]

   To similar effect, in Mills v R, R A Hulme J said: [5]

4. [11]

   Ultimately, an appellant must establish that the sentence is “unreasonable or plainly unjust”. [6]

The indicative sentences

1. [12]

   The facts of the offending have been summarised above, and are set out more fully in the judgment of Adamson J. [7] Their objective gravity is great, and so much is undisputed. It was rightly described by the sentencing judge as “a horrific example of unlawful and dangerous conduct and gross negligence”, where the applicant had “no regard for the safety of any other road users including his victims”. However, as N Adams J explains, [8] the mental basis of the applicant’s criminal liability is criminal negligence, not intent, and he fell to be sentenced on the basis that, although he never intended to cause death or grievous bodily harm, it resulted from such a breach of his duty of care as to merit criminal punishment.

2. [13]

   The applicant’s subjective case has been summarised by N Adams J. [9] At the time of the offence, he was a 28-year-old man of previous good character. Although he had on six occasions received infringement notices and fines for exceeding the speed limit, and once for driving unlicensed (his previous license having expired), he had no serious driving or other offences, and in particular no record of driving under the influence of alcohol or drugs. Born with ADHD, he struggled academically and socially in high school and left school at the end of Year 10. Thereafter he worked at first in the hospitality industry, as an apprentice chef, kitchenhand and cook, a disc jockey, and for about six years prior to the offence as a truck driver. In a letter to the sentencing Court, he described that his “worst punishment” was waking up every day knowing that he was responsible for the horrible accident that will stay with him forever. He apologised to the family of the victims and told them that he prayed for them every day. He stated that he will never again touch drugs or alcohol nor drive a motor vehicle. He was found by the sentencing judge to be genuinely remorseful, with good prospects of rehabilitation and unlikely to reoffend. The combination of good character, remorse, and good prospects of rehabilitation, culminating in a finding that he unlikely to re-offend, constitute a substantial subjective case. As N Adams J explains, [10] the subjective features of the applicant’s case were more favourable than those in many of the comparable cases mentioned below.

3. [14]

   The applicant received a discount of 25% for his early pleas of guilty. While authority establishes that the discount is applied to the indicative sentences and not the head sentence, [11] for the purposes of comparing an aggregate sentence after a plea of guilty with an undiscounted sentence, it is not impermissible to “add the discount back” to the head sentence in order to obtain at least an approximate comparator. [12] Indeed, there is not really any other way to do so, and where the same discount has been applied to all the offences that have been aggregated, it should make no difference whether the discount is applied to the individual indicative sentences or to the aggregated sentence.

4. [15]

   Adopting that approach, the head sentence of 28 years implies an undiscounted starting point of 37 years. My instinctive reaction – like that of Leeming JA to the shorter sentence (15 years imprisonment with a non-parole period of 10 years) that had been imposed in comparable circumstances in Moananu [13] – was that that seemed excessive for offences which, notwithstanding their horrific consequences, were attributable to criminal negligence and not to wilful intent, on the part of an offender of prior good character. But, notwithstanding the caution which is to be applied to their use, and in particular that they describe rather than define a range of sentences, comparable cases provide a surer basis for assessment than mere instinct, and what is often described as instinct in this field is informed, if sub silentio, by a judicial officer’s experience in and knowledge of more or less comparable cases. Comparable cases are important also because they assist in achieving consistency and predictability of outcomes. Without reference, whether expressed or not, to comparable cases, instinct is not far removed from idiosyncrasy.

5. [16]

   An aggregate sentence is necessarily informed by, and represents an accumulation to some degree of, the indicative sentences. While, in an appeal from an aggregate sentence on the ground of manifest excess, a principal focus is whether the aggregate sentence appropriately reflects the totality of the criminality involved, [14] and while the indicative separate sentences are not themselves amenable to appeal, error in an indicative sentence may assist a finding of error in the aggregate sentence, [15] though it has been said that the latter conclusion does not necessarily follow, [16] a matter to which I return in discussing totality below. At this point, it is appropriate first to consider the indicative sentences. Consistently with the manner in which the appeal was conducted, and because they are by far the lengthiest and greatest component of the ultimate aggregate sentence, the focus is the 14 year 3 month indicative sentences for each of the four manslaughters.

6. [17]

   It has several times been said in the course of these proceedings that there is no case comparable to it. While that may be so in terms of the number of victims and thus offences, that is not relevant to the indicative sentence for each individual offence, for which there are many comparable cases. They are extensively discussed by N Adams J. For my purposes, the salient points that emerge from them are summarised below. Save where noted, all were, like the present, pleas of guilty.

7. [18]

   In R v Cameron, [17] for three counts of manslaughter and one of dangerous driving causing grievous bodily harm arising out of a collision with a telegraph pole, the offender was re-sentenced to a total effective sentence of 9 years, with a non-parole period of 6 years. This was derived through the partial accumulation of sentences, for each count of manslaughter of a term of 7 years (being a non-parole period of four years and a balance term of three years), and for the grievous bodily harm a fixed term of 3 years. [18] The accumulation on the longest individual sentence (7 years) was 2 years (for two manslaughters and one grievous bodily harm). A higher sentence may well have been appropriate had it not been a Crown appeal prior to the enactment of s 68A of the Crimes (Appeal and Review) Act 2001 (NSW). [19] The offending conduct was broadly similar to that in the present case, though the BAC was lower (in excess of 0.114%). Subjectively, the offender was only 21 years of age, but at the time of offending was subject to a good behaviour bond.

8. [19]

   In Lawler v R, [20] for one count of manslaughter (with a number of Form 1 matters) and two of dangerous driving occasioning grievous bodily harm, a sentence of 10 years and 8 months (non-parole period 8 years) for the manslaughter count and sentences of 2 years and 18 months respectively for the two grievous bodily harms were held not to be manifestly excessive. The objective gravity of the offending was increased relative to the current case by the nature of the vehicle – a prime mover – and the offender’s knowledge that its brakes were defective with the result that when the brakes failed on a long, steep incline, the prime mover collided with 33 vehicles. There was no accumulation, the sentences for the other counts being wholly concurrent.

9. [20]

   In R v Robert Borkowski, [21] the offender with a BAC of 0.06 and residual effects of cannabis and methylamphetamine was engaged in racing two other vehicles along the Great Western Highway at St Marys for a distance of some 5 kilometres at speed up to at least 130kph and collided with a vehicle killing its two passengers. On a Crown appeal, Howie J, with whom McClellan CJ at CL and Simpson J agreed, held that sentences of a fixed term of 4 years for one manslaughter and 7 years (non-parole period 4 years) for the second, accumulated by only 2 years to produce a total effective sentence of 9 years, were manifestly inadequate, and that the least total effective sentence that could have been imposed was 12 years (non-parole period 9 years), though had he been the sentencing judge his Honour would have imposed a higher sentence than that. However, that sentence was not imposed, because the residual discretion was exercised to dismiss the Crown appeal. His Honour regarded the case as more serious than cases such as Cameron “because it involved three vehicles all being driven dangerously in a joint enterprise and, hence, the potential dangerousness to others in the vicinity was increased dramatically from a case involving the dangerous driving of a single vehicle”. [22]

10. [21]

    In Woodbridge v R, [23] a case which exceptionally involved a conviction after trial, for one count of manslaughter and one count of dangerous driving occasioning grievous bodily harm (a stroke leaving the victim wheelchair bound), on a Crown appeal, the offender was resentenced to a total effective term of 9 years with a non-parole period of 6 years, the manslaughter attracting a sentence of 7 years with a non-parole period of 4 years, and the grievous bodily harm a fixed term of 3 years. The accumulation on the longest individual sentence (7 years) was 2 years (for one grievous bodily harm). The offending conduct was no less grave than that of the present applicant; the BAC was much higher, around 0.277%; the offender drove for 9 km in a built-up area in the vicinity of schools and shopping centres. Her subjective case that she had suffered from depression and alcohol abuse and had ongoing psychiatric issues was offset by her having previously been convicted of driving with the high range prescribed concentration of alcohol.

11. [22]

    In Duncan v R, [24] for two counts of manslaughter and three of dangerous driving causing grievous bodily harm, a total effective sentence of 12 years and 6 months with a non-parole period of 8 years was upheld; the sentences of 9 years and 6 months (non-parole period 5 years) for each manslaughter and fixed terms of imprisonment for 3 years for the dangerous driving offences were partially accumulated. The accumulation on the longest individual sentence (9 years 6 months) was 3 years (for one manslaughter and three grievous bodily harm). This case, in which the 36-year-old offender encouraged one of her younger passengers to drive faster (up to 210km/h), before taking the wheel and indicating she would go even faster and losing control, is objectively no less serious than the present.

12. [23]

    In Spark v R, [25] for two counts of manslaughter, a total effective sentence of 15 years with a non-parole period of 11 years and 3 months was upheld. It reflected partial accumulation of sentences of 12 years and 6 months (non-parole period 8 years and 9 months), and of 13 years and 6 months (non-parole period 9 years and 9 months), the latter after taking into account two offences on a Form 1 (aggravated break and enter and commit serious indictable offence contrary to s 112(2) of the Crimes Act and an offence of take and drive conveyance contrary to s 154A(1) of the Crimes Act). The objective gravity was accentuated by circumstances that the offender had never held a licence, was on parole for car theft, drove while experiencing drug withdrawal after using methylamphetamine and amphetamines, participated in a lengthy police pursuit and ultimately drove onto the wrong side of the road at which time he crashed into a car travelling into the opposite direction killing a woman and her 18-year-old daughter. The offender had a significant criminal record. The accumulation on the longest individual sentence (13 years 6 months) was 18 months (for the second manslaughter). Spark was objectively more serious, and subjectively less favourable, than the applicant’s case.

13. [24]

    In R v Winter, [26] a Crown appeal against a sentence imposed for two counts of manslaughter decided after the introduction of s 68A of the Crimes (Appeal and Review) Act, the offender was resentenced for two counts of manslaughter to an aggregate sentence of 9 years imprisonment with a non-parole period of 6 years; each indicative sentence was 7 years, with the observation that this involved “an identifiable period of custody for count 1 of 2 years”. [27] Thus the accumulation on the longest individual sentence (7 years) was 2 years (for the second manslaughter). The offending conduct was less objectively grave than in the instant case (the offender lost consciousness due to undiagnosed epilepsy, but was found to know of her potential to do so, and drove under the influence of morphine and cannabis contrary to medical advice), but her subjective case was weaker (she had a significant criminal history and was serving a periodic detention order at the time of the offence).

14. [25]

    In R v Chandler (No. 2), [28] for a single count of manslaughter, but taking into account matters on a Form 1 relating to the theft of the vehicle and escaping from police, the offender was sentenced to 19 years’ imprisonment (non-parole period 13 years), after a 5% discount on 20 years for a late guilty plea; for purposes of comparison it equates to a sentence of 15 years assuming a 25% discount. The 22-year-old offender having taken ice (crystal methamphetamine) drove at speed and in a stolen vehicle, and in an attempt to escape a police pursuit, deliberately drove through the front fence of a residential property, using the vehicle as a battering ram, and colliding with and killing an 18-month-old child (two other children suffered minor injuries). He was sentenced on the basis of manslaughter by unlawful and dangerous act, [29] in that he realised that there was an appreciable risk of serious injury to persons in the backyard when he drove through the fence of the property, “at the gravest end of the spectrum of crimes of involuntary manslaughter”. [30] Thus, the mental element upon which Chandler was sentenced was very close to that of murder. As N Adams J explains, the case is in that respect significantly more serious than the applicant’s case. [31]

15. [26]

    In Lees v R, [32] for a single offence of manslaughter, a sentence of 16 years’ imprisonment (non-parole period 12 years) was held on appeal to be manifestly excessive and reduced to a head sentence of 12 years (non-parole period 9 years). The offender had killed her de facto partner by driving her vehicle at him with the intention of hitting him, and was sentenced on the basis that the offence was manslaughter by unlawful and dangerous act. [33] Again, the case does not fall far short of murder.

16. [27]

    In Smith v R, [34] for one count of manslaughter, one of possession of cannabis, one of driving with cannabis in her blood, and one of driving with the high range prescribed concentration of alcohol), a sentence of 9 years imprisonment (non-parole period 6 years 3 months) was held to be manifestly excessive, and a sentence of 7 years and 6 months (non-parole period 5 years) was substituted. The offender had a BAC of at least 0.243%, had collided with a post and a hedge before leaving a car park with her tyres “squealing”, was warned that she should not be driving and declined offers to drive her home, narrowly missed a small boy pushing his bicycle across the road, left the road and fishtailed striking and snapping a speed sign and tearing the door panel from the door frame, after remaining off the road for 90 metres continued to drive at high speed for 700 metres, again leaving and returning to the road and narrowly missing a car travelling in the opposite direction, before striking the victim. She had previous convictions for driving with the prescribed concentration of alcohol. This Court held that the sentence imposed was manifestly excessive having regard to prevailing sentencing practice, [35] and that the appropriate starting point (prior to the application of the 25% discount for the guilty plea) was imprisonment for 10 years, and after reduction for the prompt plea of guilty and adjustment of the statutory proportions between the head sentence and the non-parole period, the applicant should be resentenced to imprisonment for 7 years and 6 months with a non-parole period of 5 years. [36] Objectively and subjectively it was a worse case than the applicant’s.

17. [28]

    In Crowley v R, [37] for one count of manslaughter and three counts of aggravated dangerous driving causing grievous bodily harm, an aggregate sentence of 14 years and 3 months with a non-parole period of 10 years was upheld. The indicative sentence for the sole count of manslaughter was 11 years’ imprisonment, and for the grievous bodily harms the indicative sentences were 4 years and 8 months for two and 4 years and six months for the third. The accumulation on the longest individual sentence (11 years) was 3 years and 3 months (for the three grievous bodily harms). The offender had driven with a BAC not less than 0.12%, in a dangerous manner at high speeds up to at least 144 kph in 70 and 80 kph zones and on the incorrect side of the road for a substantial period, sideswiping three other vehicles and colliding with a fourth, injuring a passenger, before ultimately coming into collision head-on with another motor vehicle. The offending conduct was objectively no less serious than the applicant’s, and the subjective considerations inferior: he had a previous mid-range prescribed concentration of alcohol which disentitled him to leniency though was otherwise of good character.

18. [29]

    In Director of Public Prosecutions v Abdulrahman, [38] for a single count of manslaughter and a count of driving while disqualified, on a Crown appeal, the offender was resentenced to an aggregate sentence of 10 years and 2 months (non-parole period 6 years and 8 months); the indicative sentence for the manslaughter was 10 years and one month. The respondent, whilst disqualified from driving and having been afforded the leniency of an intensive correction order for driving under the influence of drugs, drove a motor vehicle through a red light, without stopping, near a busy school, with a level of methylamphetamine in his blood in the “reported toxic to potentially fatal range”. Two 12-year-old boys were crossing the road. One was killed instantly whilst the other looked on. After observing his body, the respondent failed to render any assistance to the dying child and instead stood by smoking a cigarette and speaking to family members on his mobile telephone. He deleted texts on his mobile telephone and lied to police about the cause of the accident. His subjective case was very weak: he had a criminal history, a poor driving history and little in the way of mitigation beyond his guilty plea, save that he was on medication for post-traumatic stress disorder as a result of a shooting some years earlier. In considering as comparable cases Smith, Spark, and Winter, Beech-Jones J (as his Honour then was), with whom Garling J and N Adams J agreed, considered that the offender’s criminality was worse than Winter (aggregate sentence 9 years, indicative 7 years for each count of manslaughter) but not so serious as Spark (aggregate sentence 15 years, indicative sentence 12 years 6 months for manslaughters), and distinguishable, especially as to the necessity to address specific deterrence and protect the community, from Smith. [39] In my view, the objective gravity was not materially different from the present case, and the subjective considerations were inferior.

19. [30]

    In Byrne v R; Cahill v R, [40] this Court considered that for a single count of manslaughter, sentences of 10 years and 6 months (non-parole period 7 years) were high but not manifestly excessive. The two offenders were involved in a street race in a large regional city in mid-morning, reaching speeds up to 143 and 130km/h where the speed limit was 50km/h, hitting another car the passenger of which was killed. This Court considered it to be a most serious example of its kind calling for significant general deterrence. In my view, the objective gravity was not materially different from the present case.

20. [31]

    Most recently, in Moananu, [41] for two counts of manslaughter contrary to s 18 of the Crimes Act (one of which involved a woman pregnant with twins) and one count of aggravated dangerous driving occasioning grievous bodily harm, an aggregate sentence of 15 years imprisonment with a non-parole period of 10 years (where the indicative sentences for the two manslaughter offences were 8 years and 6 months and 9 years (including the Form 1 matters) respectively and 4 years and 6 months for the aggravated dangerous driving occasioning grievous bodily harm), was held to be manifestly excessive, and the applicant was re-sentenced to an aggregate sentence of 12 years and 6 months with a non-parole period of 8 years and 4 months. The indicative sentences for manslaughter were 7 years and 6 months and 8 years and 3 months and for the aggravated driving causing grievous bodily harm was 4 years and 6 months. The accumulation on the longest individual indicative sentence (8y3m) was 4 years and 3 months (for one manslaughter and one grievous bodily harm). Mr Moananu’s offending conduct was broadly similar to that of the applicant, but, it seems to me, his driving was somewhat more reckless, he was unlicensed at the time, and his BAC was considerably higher. Subjectively, he had a bad traffic record and a prior criminal conviction. It is true that he had some Bugmy [42] factors, but they were considered of limited significance: Leeming JA, while noting the “powerful” evidence of childhood deprivation, agreed with the sentencing judge that it did not greatly diminish the offender’s moral culpability. [43]

21. [32]

    Reference might also be made to Guode v R, [44] a Victorian case in which the offender pleaded guilty to the infanticide of her 16-month-old youngest child, the murder of her 4-year-old twins, and the attempted murder of her 5-year-old, by deliberately driving her car into a lake. On appeal, a total effective sentence of 26 years and 6 months (non-parole period 20 years), comprised of two sentences of 22 years for the murders, one of 6 years for the attempted murder and one of 12 months for the infanticide, with a total accumulation on the longest sentence of 4 years and six months, was set aside as manifestly excessive. Upon resentencing, a total effective sentence of 18 years (non-parole period 14 years), with 16 years for the two murders, 4 years for the attempted murder and 12 months for the infanticide (accumulation of 2 years, for the second murder, attempted murder and infanticide), was substituted. On any view, that offender’s criminality must be viewed as very substantially greater than the present applicant’s.

22. [33]

    The cases to which reference has been made – with the exceptions of Lees (12 years) and Chandler (15 years when adjusted), which were both cases in which the mental element was not far removed from murder – are suggestive of a range of actual or indicative head sentences on early pleas of guilty for a single count of vehicular manslaughter, generally between 7 years and 11 years. Most notably, in two reasonably closely comparable cases, actual or indicative sentences for counts of manslaughter less than those indicated in respect of the applicant – Moananu, where the original aggregate sentence was 15 years based on indicative sentences for two manslaughter offences of 8 years and 6 months, and Smith, where the original sentence for manslaughter was 9 years – were held to be manifestly excessive, and in each case sentences of 7 years and 6 months substituted. Those are to be compared with the indicative sentences of 14 years and 3 months for this applicant’s manslaughter offences. And in terms of the criminal conduct (as distinct from the consequences), the present case lacked factors which have been regarded as especially aggravating, in particular being engaged in a pursuit, ignoring requests to slow down or warnings not to drive, or prior collisions or near-misses during the driving immediately before the ultimate offence.

23. [34]

    This analysis confirms my instinctive reaction. The indicative sentences of 14 years and 3 months for each manslaughter count were plainly excessive according to prevailing sentencing practices.

The aggregation

1. [35]

   However, as explained above, an appeal lies not from the indicative sentences but from the aggregate sentence, and the ultimate question is whether the aggregate sentence is manifestly excessive. As I have mentioned, it has been said that, as the appeal lies from the aggregate sentence, error in an indicative sentence, though it may be relevant to whether the aggregate sentence is excessive, [45] is not determinative of that question: “the fact that the indicative sentences are excessive does not necessarily mean that the aggregate sentence is excessive”. [46] However, as the indicative sentence is, or at least should be, part of the reasoning process that culminates in the aggregate sentence, it is easy to see how an erroneous indicative sentence would support a conclusion that the aggregate sentence miscarried; it is less easy to see why it is not demonstrative of error in the aggregate sentence, except perhaps that it might be offset by the approach taken to accumulation and totality in reaching an aggregate sentence – as greater accumulation may be acceptable where the individual sentences are relatively shorter, and less accumulation when the individual sentences are lengthier. [47]

2. [36]

   The comparable cases to which reference has been made illustrate the principle that in a case where a single criminal act or course of conduct constitutes multiple offences because there are multiple victims, most of the purposes of punishment will be reflected in the sentence on the first count, [48] and the accumulation of the sentences in respect of the subsequent counts reflects additional elements of retribution and denunciation. [49] The rationale was explained in Wooldridge: [50]

3. [37]

   Application of the totality principle required that regard be had to the violation of each victim, but also to the circumstance that they were the result of but a single course of criminal conduct. As was said by the Victorian Court of Appeal in Guode v R: [51]

4. [38]

   I do not share the reservation expressed by N Adams J as to the application of the approach stated in Wooldridge in the context of multiple deaths caused by criminal negligence. In my view, its application in that context is supported by the approach adopted in Moananu, where the accumulation was expressed, in the words of Hamill J, to reflect “the suffering and individual dignity” of each separate victim. [52] It is also supported by Guode.

5. [39]

   The above analysis of comparable cases reveals that in cases of multiple offences arising from a single act or course of dangerous driving which has resulted in multiple victims, accumulations upon the longest individual sentence to account for the additional offences have ranged from nil (that is, total concurrency) in Lawler, where the longest individual sentence was 10 years and 2 months, to 4 years and 3 months in Moananu, where the indicative sentence was 7 years and six months. Notably, Hamill J in this Court observed that the degree of accumulation in the initial sentence in Moananu (which involved an accumulation of six years on the longest indicative sentence) was “unusually high for a case involving a single course of criminal conduct”. [53]

6. [40]

   In this respect no case is directly comparable to the present because no case involves three additional manslaughters, a grievous bodily harm and two actual bodily harms. Unquestionably, some degree of accumulation for each additional offence was appropriate individually to recognise the violation of each victim. While a greater total accumulation than in the comparable cases is appropriate given the unprecedented number of victims, it must also be borne in mind that each increment in a sentence is exponentially more severe, as “the severity of a sentence increases at a greater rate than any increase in the length of the sentence”. [54] So viewed, the degree of accumulation (13 years and 9 months, for 3 manslaughters, 1 grievous bodily harm and two actual bodily harms) applied in the aggregate sentence to the already harsh indicative sentences (14 years 3 months) – counter to the guidance of the High Court that “generally speaking … the imposition of … more severe individual sentences may necessitate a greater degree of concurrency” [55] – to produce an aggregate sentence of 28 years, was grossly discordant with prevailing sentencing practices. It will be recalled that in Cameron, the accumulation on the longest individual sentence (7y) was 2 years (for two manslaughters and one grievous bodily harm).

7. [41]

   As I have noted, the effect of the aggregate sentence and non-parole period is that the applicant, who at the time of the offences was 29, will not be eligible for parole until he is 50, and will not have served his sentence until he is 57. The cases which inform the relevance of a sentence being so long as to be “crushing” are discussed by N Adams J. [56] I accept that there is no standalone principle that a sentence must not be “crushing”, in the sense that a sentence that is “crushing” will not on that account alone necessarily be manifestly excessive; in some circumstances, the only proper sentence may be one that is “crushing”. The “crushing” effect of a sentence is but one of the matters to be taken into account in determining whether the sentence is beyond the range of sentences properly available to the sentencing judge, the ultimate question is whether the sentence is proportionate to the offender’s overall criminality. [57] However, the same cases establish that it is a relevant consideration, in the aggregation of sentences, that the result may be “crushing”. That consideration is likely to have most relevance in a case of a relatively young offender of prior good character, with good prospects of rehabilitation, who is in custody for the first time.

8. [42]

   This is such a case. A sentence for an offence of criminal negligence which leaves a 29-year-old man of prior good character with good prospects of rehabilitation no prospect of release until he is 50 is indeed crushing, and not proportionate to the totality of his criminality. This is not a case of a “discount” for multiple offending: there was but a single course of criminally negligent conduct, albeit one which had catastrophic consequences.

9. [43]

   It follows that in my opinion the indicative sentences for manslaughter were excessive, the degree of accumulation applied to them was excessive, and the result was an aggregate sentence that was manifestly excessive and inappropriately “crushing” in the circumstances of the case.

Resentencing

1. [44]

   I have set out at the outset of this judgment in summary form the relevant objective and subjective considerations, [58] and in my consideration of the comparable cases my assessment of the relativity of the subject case to them. Having regard to those matters, I indicate that were I imposing separate sentences for each individual offence, and after allowing a 25% discount for the pleas of guilty, those sentences would be, for each of the four manslaughters, 9 years (in lieu of 14 years 3 months).

2. [45]

   As the applicant must be resentenced, it is unnecessary to consider whether the indicative sentence for the grievous bodily harm, or those for the two actual bodily harms, were manifestly excessive. However, if imposing sentences for them individually, I would impose lesser sentences than the sentencing judge, as follows:

   1. (1)

      for the grievous bodily harm: 5 years (in lieu of 6 years); and

   2. (2)

      for each of the two actual bodily harms: 12 months (in lieu of 16 months).

3. [46]

   In my judgment, an accumulation of 7 years (for three manslaughters, the grievous bodily harm and the two actual bodily harms), is appropriate to recognise the additional requirements of retribution and denunciation for each separate victim, in order to reflect the totality of the offender’s criminality. I would therefore impose an aggregate sentence of 16 years. When adjusted for the 25% discount for the plea of guilty, this equates to an implied starting point in excess of 21 years, which would still be the most severe sentence ever imposed in this State for vehicular manslaughter. At 16 years, it would be only two years less than the sentence imposed (after pleas of guilty) for multiple murders in Guode.

4. [47]

   The trial judge did not find special circumstances, nor would N Adams J. I respectfully differ. Special circumstances are not confined to circumstances that indicate the desirability of a longer than standard period of parole, and extend to other circumstances that may point to the desirability of a shorter than standard non-parole period. [59] The facts that this is his first custodial sentence, that his incarceration will be more onerous by reason of his ADHD and his need for protection, but above all his good prospects of rehabilitation, which will be promoted by affording him an earlier than otherwise opportunity to commence restarting his life in his forties, but compromised by later release to parole, amount to special circumstances warranting a shorter than standard non-parole period. I would fix a non-parole period of 11 years.

Resolution

1. [48]

   In my opinion, therefore, leave to appeal should be granted, the appeal allowed, the aggregate sentence imposed by the District Court quashed, and in lieu thereof the applicant should be sentenced to imprisonment for a term of sixteen years expiring on 31 January 2036, with a non-parole period of eleven years expiring on 31 January 2031.

2. [49]

   In circumstances where Adamson J would dismiss the appeal, N Adams J would allow it and substitute a sentence of imprisonment for 20 years with a non-parole period of 15 years, and I would allow it and substitute a sentence of imprisonment for 16 years with a non-parole period of 11 years, there is a majority in favour of allowing the appeal, but no majority for any particular outcome. The traditional means for resolving such a situation is that the junior judge withdraws his or her proposed orders and agrees with those proposed by the senior judge. [60] In this case, that approach would require N Adams J to withdraw her Honour’s proposed orders, and agree with mine. However, in Woolworths v Kelly, [61] Kirby P (as he then was) explained that a more logical approach, which does not depend on the accident of judicial seniority, is to ascertain the “highest common denominator”. In this case, the highest common denominator is represented by the orders proposed by N Adams J. In order to secure a majority, I would therefore withdraw the orders I propose, and agree with those proposed by her Honour.

3. [50]

   ADAMSON J: Samuel Davidson (the applicant) pleaded guilty to the following seven offences which arose from his driving a motor vehicle on 1 February 2020:

   1. (1)

      Four offences of manslaughter (sequences 1, 2, 3 and 4), which caused the deaths of four children: Angelina Abdallah, Siena Abdallah, Antony Abdallah and Veronique Sakr;

   2. (2)

      One offence of aggravated dangerous driving occasioning grievous bodily harm (ADDOGBH) against Charbel Kassas (sequence 26); and

   3. (3)

      Two offences of cause bodily harm by misconduct in charge of a motor vehicle (CBHMV) (sequences 15 and 16) against Mabelle Kassas and Liana Abdallah.

4. [51]

   Each of these offences was committed when the car which the applicant was driving mounted the kerb and hit seven children who were walking together on the footpath on their way to buy ice-creams after a family function.

5. [52]

   On 9 April 2021, Bennett SC DCJ (the sentencing judge) sentenced the applicant to an aggregate term of imprisonment of 28 years with a non-parole period of 21 years, commencing on 1 February 2020. The applicant will be eligible for release on parole on 31 January 2041.

6. [53]

   The offences, the victims and their ages as at 1 February 2020, the maximum penalty and the implied indicative sentences (before the discount of 25%) and the indicative sentences (after the discount of 25%) are as follows:

7. [54]

   The applicant seeks leave to appeal against his sentence on the following grounds:

   1. (1)

      The sentencing judge erred in holding that there was no causal link between the applicant’s Attention Deficit Hyperactivity Disorder (ADHD) and the commission of the offences; and

   2. (2)

      The sentence imposed is manifestly excessive.

The sentence hearing

1. [55]

   The Crown tendered a statement of agreed facts. The Crown also tendered a map of the area in which the offending occurred; a Computer Assisted Design (CAD) map; CCTV footage of the applicant’s driving which was shown in court in the sentence hearing; and the applicant’s criminal and custodial histories (which showed that he had no criminal history although there were some traffic infringements).

2. [56]

   The Crown also tendered nine victim impact statements, some of which were read in Court.

3. [57]

   The applicant tendered two reports by Dr Richard Furst, forensic psychiatrist; a letter of apology from the applicant to the Court; references from each of his parents and his employer and an affidavit of his solicitor, who was not cross-examined. The applicant did not give evidence at the sentence hearing.

4. [58]

   To the extent relevant this evidence will be summarised later in these reasons.

5. [59]

   The following narrative is based on the statement of agreed facts which was reflected in the sentencing judge’s reasons (and is largely derived from the Crown’s submissions).

6. [60]

   On 1 February 2020, the applicant, with his friends and flatmates, including Daniel Newman and Daniel Smith, drank vodka cruisers, beer and rum. The applicant commenced drinking at about 7:00am and had his last drink at about 7:40pm. He had also drunk the night before and did not eat while drinking on 1 February 2020. Sometime after 11:00am, he snorted cocaine. Sometime after 4:45pm, he also used a quantity of 3,4-methylenedioxymethamphetamine (MDMA).

7. [61]

   At some stage in the evening of 1 February 2020, there was a discussion about the applicant and one of his flatmates (Mr Newman) owing money to the other flatmate (Mr Smith). At 7:30pm, the applicant and Mr Newman left their house in the applicant’s Mitsubishi Triton dual cab 4-wheel-drive utility vehicle. The applicant drove to a liquor store where they made a purchase and withdrew $120 in cash. The applicant then drove sharply into the driveway of a petrol station. He parked and waited for Mr Newman who went to the store. While Mr Newman was in the store, the applicant sounded his horn repeatedly. On Mr Newman’s return, the applicant accelerated sharply, left the petrol station at speed and sped through a red light as he turned right onto Statham Avenue, Oatlands. His driving was depicted on the CCTV footage. The conditions were dry, and the road was in a good condition.

8. [62]

   At about 7:45pm, the applicant turned onto Bettington Road, Oatlands and travelled south. Angele Wakim was also driving south along Bettington Road, at about 60kph with one adult and two child passengers in her car. She saw the applicant drive very close to the rear of her vehicle and then swerve from side to side in an effort to get past her. She saw that both males in the car were shirtless and laughing. The sentencing judge described the applicant’s manner of driving as “menacing”.

9. [63]

   As Ms Wakim approached a roundabout, at the corner of Bettington Road and Felton Road, the applicant crossed on to the incorrect side of the road, and overtook her car. As the applicant passed Ms Wakim, Mr Newman stuck his middle finger up at her. She then watched the applicant briefly stop his vehicle at the roundabout on the wrong side of the road while a car exited the roundabout. The applicant then drove through the roundabout in an anti-clockwise direction, on the wrong side of the road. Two other witnesses in a motor vehicle, Chief Inspector Hall and Ms Hall, also saw this occur. Ms Hall observed the applicant laughing, being quite animated and also sticking his middle finger up. Chief Inspector Hall saw a motor bike swerve sharply towards the gutter as the applicant drove through the roundabout. He also observed the applicant’s vehicle being driven at high speed on the wrong side of the road and rocking from side to side.

10. [64]

    When the applicant came to a red light at an intersection with Pennant Hills Road, he edged his vehicle across the stop line, looked in both directions, and then accelerated abruptly, crossing four lanes of traffic against the red light. On the basis of the CCTV footage, at least six vehicles passed in front of the applicant’s vehicle on a green light. The red light at that intersection lasted only 40-60 seconds.

11. [65]

    The applicant travelled south on Bettington Road, which sloped slightly downward as he approached a right-hand bend in the road. His Honour observed that, at this stage, the applicant was driving significantly faster than the sign-posted speed limit of 50kph, as revealed by his appearing as just a “flash” on the CCTV footage. Expert analysis of the CCTV footage resulted in a conservative estimate of the applicant’s speed at this point (the right-hand bend) of at 122-125kph. Expert analysts estimated that a vehicle on the applicant’s trajectory could accommodate no more than a corner speed of approximately 75kph on the approaching bend. Data retrieved from the applicant’s vehicle revealed a maximum speed of 133kph prior to reaching the bend, with a slight deceleration to 111kph at the point of impact. Analysis of the vehicle data revealed that, 4.5 seconds prior to impact, the accelerator was completely depressed and that the brake pedal was not engaged any time in the 5 seconds before the impact.

12. [66]

    The seven victims, who were siblings and cousins, had left a family function to get some ice-cream. They were walking slowly along the footpath of Bettington Road in a southerly direction on the left (eastern) side of the road. The CCTV footage depicted the victims walking along the footpath, where, at about 7:50pm, approximately ten minutes before sunset, as his Honour found, they were behaving lawfully and walking where they were entitled to be.

13. [67]

    At about 7:50pm, the applicant entered the right-hand bend in the road and lost control of the vehicle due to the excessive speed. The total length of the journey from the applicant’s home to the service station and back to where the collision occurred was approximately 5.3km.

14. [68]

    The applicant’s vehicle mounted the kerb and struck all seven children from behind, dragging some of them along a cyclone fence that bordered a golf course.

15. [69]

    Four of the seven children were killed almost instantly. They were 12-year-old Angelina Abdallah, 8-year-old Sienna Abdallah, 13-year-old Antony Abdallah, and 11-year-old Veronique Sakr. The other three children were injured, 11-year-old Charbel Kassas critically.

16. [70]

    Neither the applicant nor Mr Newman was injured. When they got out of the vehicle, Mr Newman attended to Charbel Kassas. The applicant appeared distressed and said, “What have I done? I’ve killed people. I am going to gaol.”

17. [71]

    Members of the community rushed to the scene of the collision and assisted. Emergency services arrived soon afterwards. The applicant was arrested and has remained in custody ever since.

18. [72]

    It was not long before family members came to the scene and were confronted with the terrible sight of four corpses and three injured children. His Honour described the injuries to the dead children as “horrific”. Details of the injuries were set out in detail in the agreed facts and judgment on sentence. The direct cause of death of each of the four children was multiple blunt force injuries.

19. [73]

    As referred to above, Charbel Kassas, aged 11, survived but was in a critical condition on impact. He was taken to Westmead Children’s Hospital and required surgery for a severe brain injury and high impact trauma to the head and face. He spent 13 days in the intensive care unit. Expert opinion confirmed that he sustained a significant injury to the brain with likely long-term impacts on his cognitive and social abilities, resulting in lifelong disabilities and poor quality of life.

20. [74]

    Mabelle Kassas, aged 13, sustained a 3cm deep laceration to her right thigh requiring sutures. She also experienced pain and swelling. Liana Abdallah, aged 10, sustained a 5cm laceration to her right eyebrow and pain. An expert opined that she will have a significant facial scar.

21. [75]

    A roadside breath test conducted at 8:33pm returned a high-range reading of 0.182g of alcohol in 210 litres of breath which measures blood alcohol concentration (BAC). At 9:35pm, a breath analyser at a police station returned a high range BAC reading of 0.150. A blood and urine analysis performed at 10:45pm indicated a BAC reading of 0.142. That analysis also indicated 0.12mg/litre of a cocaine by-product, 0.13mg/litre of MDMA and less than 0.01mg/litre of 3,4-methylenedioxyamphetamine (MDA).

22. [76]

    Expert evidence confirmed that the applicant would have had “very substantial impairment of driving skills given the blood alcohol concentration … at the time of collision”. Any effect from the MDMA would have been minor compared to the alcohol. The effect of the cocaine was uncertain.

23. [77]

    Dr Furst noted that the applicant had been diagnosed with ADHD when he was five years old and reported that when the applicant was adolescent, several attempts made to treat him with Ritalin and Dexamphetamine were discontinued due to side effects (facial tics).

24. [78]

    When the applicant was 19 years old, his sister died from cystic fibrosis. Dr Furst reported that the applicant engaged in binge drinking for a year or two but his alcohol consumption became more controlled by the time he was about 21.

25. [79]

    Between the ages of 21 and 26, the applicant came to tolerate the ADHD medication but stopped taking it for fear of becoming dependent. In 2019, the applicant began taking this medication again but he abused it.

26. [80]

    Between 2017 and 2019, the applicant used MDMA every 6 months or so.

27. [81]

    The applicant told Dr Furst that he had no idea why he was driving at the time of the offences, noting he was never “silly” enough to drive after drinking and after consuming drugs often waited three to four days before driving. He expressed remorse to Dr Furst and said he had been seeing the prison chaplain and was in segregation.

28. [82]

    In his first report, Dr Furst opined that the applicant met the diagnostic criteria for ADHD and Alcohol Use Disorder (Binge Pattern) and that the applicant suffered from ADHD at the time of the offending. Dr Furst said that impulsivity is a “core symptom of ADHD”, which was characterised by doing things without thinking through the harmful consequences and “[the applicant’s] decision to drive in the first place … whilst intoxicated, was probably also influenced by his ADHD.”

29. [83]

    Dr Furst opined that:

30. [84]

    Mr Furst recorded that the applicant had told him:

31. [85]

    Dr Furst was not required for cross-examination.

32. [86]

    The applicant’s father, in a reference dated 7 February 2021, stated that:

33. [87]

    The applicant’s mother stated in her reference that, “[the applicant] would not normally drink and drive and clearly he was not in his right mind”.

34. [88]

    In a reference tendered at the sentence hearing, the applicant’s employer, Leigh Smart, said that the applicant’s behaviour was out of character and there had been no instances of alcohol or drug use while driving. Mr Smart said that the applicant worked as a truck driver in a heavily regulated industry in which the applicant would be subject to regular drug and alcohol testing, such as when stopping at road safety stations. Mr Smart also said that the employer had policies and procedures relating to alcohol consumption with which the applicant had always abided. Mr Smart said that, if there was alcohol present, the applicant planned ahead and did not drive, using Uber drivers and taxis instead. Mr Smart remembered one occasion when the applicant helped with a charity convoy for drought relief and refused alcohol at a “Thank you” event afterwards, as he knew he would be driving the next morning. Mr Smart said that the applicant “had a clear understanding of his responsibility for himself and others on the road”.

35. [89]

    None of these references had been provided to Dr Furst.

36. [90]

    The parties relied on written and oral submissions at the sentence hearing.

37. [91]

    The Crown included, as an appendix to its submissions, a 6-page digest of 10 cases of road-related manslaughter. None of the cases was said to be comparable.

38. [92]

    The Crown submitted that the objective seriousness of all sequences apart from 15 and 16 (for which the objective seriousness was in the mid-to-high range) was high. In support of this submission, the Crown relied on the very substantial level of intoxication, the significant excess of speed, the manner of driving, the length of the journey and the number of road-users put in danger. The Crown submitted the applicant’s moral culpability was “extreme” because his conduct exhibited a complete abandonment of responsibility which put a significant number of lives at risk and made tragedy “almost inevitable”.

39. [93]

    The Crown submitted that the following factors in the Crimes (Sentencing Procedure) Act 1999 (NSW) (the Act) were relevant to an assessment of objective seriousness but should not be double-counted as aggravating factors:

    1. (1)

       s 21A(2)(g) of the Act (substantial loss and damage);

    2. (2)

       s 21A(2)(i) of the Act (offence committed without regard to public safety); and

    3. (3)

       s 21A(2)(ib) (the offence involved a grave risk of death to other persons).

40. [94]

    The Crown requested that, pursuant to s 30E(3) of the Act, the victim impact statements be taken into account on the basis that the harm done to the family is an aspect of the harm done to the community.

41. [95]

    Further, the Crown relied on the references of the applicant’s parents and employer, to the effect that the applicant was aware of his responsibility not to drive when consuming alcohol and had displayed the maturity to understand the consequences of his actions and act accordingly.

42. [96]

    The Crown argued that Dr Furst’s evidence merely linked the applicant’s ADHD to his intoxication, which could not amount to mitigation. To the extent that Dr Furst also linked the applicant’s ADHD to the decision to drive in the first place, the Crown submitted that Dr Furst did not suggest that the applicant’s ADHD also influenced his decision to drive dangerously or that he drove without knowing what he was doing or appreciating the gravity of his actions.

43. [97]

    The Crown challenged Dr Furst’s opinion by submitting, first, that it was based on an unreliable history given to him by the applicant that he had no memory of his conduct when driving and, second, that Dr Furst had not been privy to the significant information in the references from his parents and employer about the applicant’s demonstrated and long-standing capacity to decide to drive only when he was not intoxicated and, when intoxicated, decide not to drive.

44. [98]

    The Crown submitted that s 21A(5AA) of the Act prevented the applicant’s self-induced intoxication being taken into account in mitigation of sentence. Section 21A(5AA) of the Act provides:

45. [99]

    The Crown also submitted that, in circumstances where the applicant had deliberately chosen to discontinue his ADHD medication at the time of the offences, the applicant’s moral culpability should not be mitigated on the basis of his ADHD and relied on Cicekdag v R [2007] NSWCCA 218 at [42] (James J, Giles JA and Hislop J agreeing).

46. [100]

    The Crown submitted that the Court ought not find that the applicant’s ADHD contributed to the offending in any material way or that his moral culpability was reduced to an extent that would moderate the need for either specific or general deterrence.

47. [101]

    The applicant’s counsel provided seven cases for “judicial reflection” but did not contend that any were comparable.

48. [102]

    He submitted that the consequences of the impact (the deaths and injuries to the children) were not the sole determinants of objective seriousness and that the factors set out in the guideline judgments of R v Whyte (2002) 55 NSWLR 252; [2002] NSWCCA 343 (Whyte) and R v Jurisic (1998) 45 NSWLR 209 (Jurisic) were informative. He submitted that objective seriousness of the manslaughter offences was between the high end of the mid-range and the high range; the aggravated dangerous driving offence was at the high end of the mid-range, and the cause bodily harm offences were at the “mid-to-high mid-range”.

49. [103]

    The applicant’s counsel submitted that Dr Furst’s evidence established a material causal link between the applicant’s ADHD and the offending, which reduced the applicant’s moral culpability.

50. [104]

    The offender’s counsel relied on the lack of planning as a mitigating factor under s 21A(3)(b) of the Act.

The sentencing judge’s reasons

1. [105]

   The factual findings made by the sentencing judge as to the circumstances of the offending are set out in the above narrative.

2. [106]

   When assessing the applicant’s moral culpability, his Honour found that the agreed facts disclosed “an horrific example of unlawful and dangerous conduct and gross negligence … in [the applicant’s] use of the subject motor vehicle in which he demonstrated no regard for the safety of any other road users including his victims”.

3. [107]

   His Honour found that the applicant’s conduct amounted to both unlawful and dangerous conduct and gross negligence in the context of the manslaughter offences. The sentencing judge found that:

4. [108]

   His Honour found that the manner of the applicant’s driving “was such that tragedy was inevitable; the magnitude of the tragedy though extends to the unimaginable”. His Honour found the applicant’s moral culpability to be high as he had abandoned all responsibility.

5. [109]

   The sentencing judge found that all of the offences fell well above the midrange of objective seriousness. His Honour found that the offences of manslaughter (sequences 1 to 4) fell “near to the high end of the range”, while the aggravated dangerous driving offence (sequence 26) sat marginally below the manslaughter offences. The two offences of bodily harm by misconduct (sequences 15 and 16) sat marginally below the aggravated dangerous driving offence.

6. [110]

   In assessing objective seriousness, his Honour specifically referred to the course of driving undertaken up to the collision, the length of the journey and the number of other members of the community, including the victims, who were put at risk by the applicant. His Honour also referred to the applicant’s manner of driving, which included menacing behaviour and had no regard to public safety.

7. [111]

   His Honour observed that the Crown’s description of the applicant’s moral culpability as “extreme” was, perhaps, another way of expressing what his Honour had found.

8. [112]

   In assessing objective seriousness, his Honour noted the applicant’s submission “that there is but one sequence of driving with the tragic consequence wrought in respect of each of the victims”. However, his Honour said:

9. [113]

   His Honour expressly had regard to the victim impact statements when determining the harm to the community.

10. [114]

    The sentencing judge accepted that the applicant was entitled to a 25% discount for the utilitarian value of his pleas of guilty, they having been entered at the earliest opportunity.

11. [115]

    His Honour found that the applicant was contrite and remorseful, and had acknowledged the injury and loss caused by his actions.

12. [116]

    The sentencing judge found the applicant to be a person of otherwise good character. His Honour noted the applicant’s history of traffic infringements (for which he had received a demerit point warning letter three weeks before the offences were committed).

13. [117]

    The sentencing judge found that the applicant’s ADHD condition was relevant to the circumstances of the applicant’s incarceration (because it would make it more onerous) but that it did not mitigate his offending.

14. [118]

    His Honour did not accept Dr Furst’s opinion “that the primary cause of his aggressive dangerous driving was probably intoxication through excessive drinking to which he was predisposed by ADHD”. His Honour said

15. [119]

    His Honour also found that neither “impulsivity”, nor the ingestion of alcohol explained the applicant’s decision to drive, or the manner in which he did so. The sentencing judge did not accept (as extracted below) that the applicant “impulsively ingested the substances”.

16. [120]

    His Honour also said:

17. [121]

    His Honour relevantly concluded:

18. [122]

    The sentencing judge noted the importance of denunciation, general deterrence and the need for adequate punishment. His Honour found the risk of reoffending to be low. He did not regard specific deterrence as significant, given past instances of relevant insight. His Honour gave substantial weight to the need to recognise the harm done to the community.

19. [123]

    His Honour noted the need to take into account the principles of totality when sentencing for several offences.

Grounds of appeal

1. [124]

   As manifest excess need only be considered if no other ground is made out, I propose to address ground 1 before considering, if need be, ground 2.

2. [125]

   In support of this ground, Mr Odgers SC, who appeared on behalf of the applicant, contended that the sentencing judge must have accepted Dr Furst’s evidence that the primary cause of the manner of driving was probably intoxication but rejected his opinion that the applicant was pre-disposed to becoming intoxicated by reason of his ADHD. He submitted that, in circumstances where Dr Furst was not cross-examined, it was not open to the Crown or to the sentencing judge to reject his opinion.

3. [126]

   Mr Odgers submitted that the fact that the applicant had successfully implemented plans not to drive while intoxicated in the past meant that it ought be inferred that his failure to do so in the present case was due to ADHD-related impulsivity.

4. [127]

   In my view, it was open to the sentencing judge to make the finding he did that the applicant’s ADHD did not materially contribute to the offending conduct. His Honour was not bound to accept the opinion of Dr Furst, in circumstances where significant aspects of the evidence before his Honour were not available to Dr Furst when he gave his opinions. It was his Honour’s obligation to determine the facts on the basis of the evidence. The facts found did not accord with the history given to Dr Furst which formed the foundation for his opinion. This discrepancy affected the weight that could be given to his opinion: Paric v John Holland (Constructions) Pty Ltd (1985) 59 ALJR 844 at 845-846 (Mason ACJ, Wilson, Brennan, Deane and Dawson JJ); [1985] HCA 58.

5. [128]

   The facts which weakened Dr Furst’s opinion came from evidence adduced by the applicant (being the references from his parents and his employer). Thus, the applicant had the opportunity to put these matters to Dr Furst to see if his opinion remained the same or was altered by those matters. The Crown had no obligation to put these matters to Dr Furst. It was entitled to make the forensic choice to impugn his opinion on its factual basis.

6. [129]

   I regard the submission made by Mr Odgers that the fact that the applicant had successfully implemented plans not to drive while intoxicated in the past meant that it ought be inferred that his failure to do so in the present case was due to ADHD-related impulsivity as speculative and unfounded in the evidence. The finding his Honour made to the contrary was open on the evidence.

7. [130]

   Because the connection, if any, between the applicant’s ADHD and the offending conduct was a matter in mitigation, the applicant bore the onus of establishing it on the balance of probabilities: The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54 at [27] (Gleeson CJ, Gaudron, Hayne and Callinan JJ). I am not persuaded that his Honour erred in finding that such a connection had not been established.

8. [131]

   Mr Odgers argued that the sentence imposed by his Honour was out of the range of available sentences and disproportionately high when compared with other sentences imposed in other cases, including by this Court. He sought to draw a distinction between cases of so-called “vehicular manslaughter” and other forms of manslaughter, such as those committed with a knife or a gun. He submitted that only those authorities which related to “vehicular manslaughter” were relevant to be considered because of this categorisation.

9. [132]

   Further, Mr Odgers submitted that the sentence imposed on the applicant was disproportionately long when compared with the sentence imposed by this Court (on re-sentence) in Moananu v R [2022] NSWCCA 85 (Moananu). In Moananu, this Court (Hamill J, Leeming JA agreeing, Price J contra) allowed an appeal against an aggregate sentence of 15 years’ imprisonment with a non-parole period of 10 years’ imprisonment on the grounds of manifest excess and imposed an aggregate sentence of 12½ years’ imprisonment with a non-parole period of 8 years and 4 months imprisonment.

10. [133]

    Mr Odgers also placed significant reliance on what was said by the South Australian Court of Appeal in Bubner v R [2022] SASCA 27 (concerning dangerous driving causing death) at [59] (Livesey P, Doyle and David JJA):

11. [134]

    Mr Odgers argued that it was reasonable to proceed on the basis that the undiscounted aggregate sentence was 37 years’ imprisonment (by scaling up the aggregate sentence by 25%) and that this demonstrates excess. He submitted that this amounted to a “crushing sentence” and that this Court ought intervene to reduce it.

12. [135]

    In Hughes v R [2018] NSWCCA 2 at [86], this Court (Payne JA, R A Hulme and Garling JJ) summarised the principles to be applied when there is a ground of alleged manifest excess as follows:

13. [136]

    In JM v R [2014] NSWCCA 297; (2014) 246 A Crim R 528 at [40], R A Hulme J (Hoeben CJ at CL and myself agreeing), set out propositions concerning aggregate sentences. Proposition 11 was:

14. [137]

    Thus the indicative sentences may also be considered when assessing whether an aggregate sentence is manifestly excessive. In order to work out the pre-discount starting point, the discount for the plea of guilty is to be added back to the indicative sentence. The process of “grossing up” an aggregate sentence by undoing the discount for the plea of guilty has been deprecated by this Court: BB v R [2021] NSWCCA 283 at [64]-[68] (Wilson J, Bathurst CJ and Wright J agreeing), although it was used, presumably as a rough guide, in Moananu. The reason for this is that the discount is to be applied before indicating the sentences which would have been imposed but for the imposition of the aggregate sentence pursuant to s 53A(2)(a) of the Act. I reject Mr Odgers’ submission to the contrary, or that it is an appropriate exercise to “gross up” the aggregate sentence. This process is wrong as a matter of principle and is apt to mislead.

15. [138]

    While judicial decisions on sentencing are important, what has been decided in other cases cannot determine the appropriate sentence in any particular case. This is particularly so in a case such as the present, which was accepted to be of unprecedented gravity because of several factors, the most important of which was the substantial harm to the community through the loss of four lives and the harm done to the three children who survived.

16. [139]

    The maximum penalty for manslaughter is 25 years’ imprisonment. This was an important guidepost in the sentencing task: Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [27] (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ). The maximum penalty is reserved for the worst category of case. It is important to recognise that the charges for unlawful homicide in the present case were charges of manslaughter. Manslaughter is the offence to which the applicant pleaded guilty in respect of the four deaths. In these circumstances, Whyte and Jurisic do not apply, since they related to different offences: dangerous driving occasioning death or bodily harm contrary to s 52A of the Crimes Act. This is no mere matter of prosecutorial discretion. The most serious offence under s 52A of the Crimes Act, aggravated dangerous driving occasioning death (s 52A(2)), carries a maximum penalty of 14 years’ imprisonment, which is slightly more than half the maximum penalty of 25 years’ imprisonment for manslaughter.

17. [140]

    Manslaughter has been described as a “protean” offence because the circumstances of its commission are many and various: R v Forbes [2005] NSWCCA 377; (2005) 160 A Crim R 1 at [133]-[134] (Spigelman CJ, McClellan CJ at CL and Hall J agreeing). Manslaughter may involve acts which would, but for provocation and excessive self-defence, amount to murder. Such manslaughter is termed “voluntary manslaughter” because, in such cases, the offender has an intention to kill or cause grievous bodily harm. The second category, involuntary manslaughter, comprises an unlawful and dangerous act or criminal negligence which causes the death of another. The elements and the various categories are set out and explained in Lane v R [2013] NSWCCA 317; (2013) 241 A Crim R 321 at [50]-[64] (Bathurst CJ, Simpson J and myself).

18. [141]

    In R v Blacklidge (Court of Criminal Appeal (NSW), 12 December 1995, unrep) (Blacklidge) at page 3, Gleeson CJ (Grove and Ireland JJ agreeing) said:

19. [142]

    In R v Loveridge [2014] NSWCCA 120; (2014) 243 A Crim R 31 (Loveridge) Bathurst CJ (with whom Johnson and R A Hulme JJ agreed) said at [226]-[227]:

20. [143]

    I regard Blacklidge and Loveridge as powerful statements of principle against the submission made by Mr Odgers. Although it is understandable that counsel, when seeking to assist a sentencing judge, will select cases which are thought to involve similar facts or offending, it does not follow that such cases give rise to a range within the category. The reason for this is that each case must be determined by reference to the maximum penalty and the general principles of sentencing, as applied to the specific facts of that case.

21. [144]

    Other judicial decisions may be helpful but they are no more than a guide and play a relatively limited role in sentencing, as the High Court explained in Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [53]-[55] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ). Having warned, at [53] that care must be taken in using other cases, their Honours approved Simpson J’s statements of principle as follows:

22. [145]

    Their Honours, at [59], cited the passage from Wong v The Queen (2001) 207 CLR 584 at [58], where their Honours (Gaudron, Gummow and Hayne JJ) said that appellate intervention on the ground of manifest excess or inadequacy “is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases.” This principle is particularly apposite in the present case where it was accepted in the Court below that the case had no relevant analogues.

23. [146]

    Thus, in Director of Public Prosecutions (Vic) v Dalgleish (2017) 262 CLR 428; [2017] HCA 41 (Dalgleish), the High Court reversed the decision of the Victorian Court of Appeal on the basis that the Court of Appeal had erred by treating the range established by then current sentencing practices as dispositive. The plurality (Kiefel CJ, Bell and Keane JJ) at [53] emphasised the need to have regard to the maximum penalty for the offence and the moral culpability of the offender (as well as all other relevant objective and subjective factors) in order to determine the appropriate sentence in a given case.

24. [147]

    Consistency of principle is particularly important when sentencing for manslaughter offences. Otherwise, an impression can be created that certain types of manslaughter, such as manslaughter when the offender is the driver of a car, are less serious than manslaughter where the offender has killed with a knife, a gun or a fist. This too can create the impression that leniency is extended to those who kill by doing what many members of the community, including judges, do every day, that is, drive a car, in contrast to those whose actions kill by other means.

25. [148]

    There are, of course, factual differences, depending on the manner of death. A car may, as in the present case, kill and injure several people at once in what may be regarded as a single act by the offender (which will amount to several offences depending on the number of people killed or injured). Usually, a person wielding a knife can only kill one person at a time. The same goes for a gun, unless the gun is a semi-automatic weapon. The number of people killed by a car or a semi-automatic weapon is determined by the number of people who happen to be in the vicinity at the particular time as well as the forces involved (which are a product of the speed and mass of the car, as well as its dimensions). But chance plays a part in much criminal offending. A punch to the head may result in the victim feeling transient pain or, as in Loveridge, in the victim’s death. Stabbing someone once may result in an injury which heals or in the victim’s death.

26. [149]

    In this context, I regard the passage extracted above from Bubner v R (relied on by Mr Odgers), taken by itself, as failing to reflect one of the purposes of sentencing: “to recognise the harm done to the victim of the crime and the community”: s 3A(g) of the Act. While an offender’s moral culpability, from his point of view, may be the same if one person is killed by his or her driving rather than four, the harm to the community is significantly greater in the latter case. Sentencing requires the Court to view the matter not merely from the perspective of the offender, but also from the perspective of the community, which includes the victims. Further, for the reasons given by this Court in R v Knight [2005] NSWCCA 253; (2005) 155 A Crim R 252 at [112], it is important to avoid the impression that a discount for multiple offending is being given.

27. [150]

    Other factors relevant to sentencing may also change by reference to the mode of killing. For example, the principle of general deterrence may be entitled to greater weight when the manslaughter involves the use of a motor vehicle because of the number of members of the community who drive every day.

28. [151]

    These examples demonstrate the lack of utility of considering a case by reference to the so-called category to which it belongs. The approach sanctioned by the authorities is for the sentencing judge to have regard to the maximum penalty, make an assessment of objective seriousness and moral culpability, take into account all relevant objective and subjective circumstances, apply a discount, where applicable, for a plea of guilty (by reference to its timing), and assistance to authorities, and come to a view as to the appropriate sentence for each offence. The sentencing judge will also have regard to the principle of totality to ensure that the aggregate sentence or overall effect of the sentence is appropriate in all the circumstances: Mill v The Queen (1988) 166 CLR 59 at 63 (Wilson, Deane, Dawson, Toohey and Gaudron JJ); [1988] HCA 70.

29. [152]

    Bearing in mind the limited utility of decided cases, I do not propose to catalogue the decisions of the Court which relate to sentencing for manslaughter in a similar context, although they were addressed by the parties in written submissions.

30. [153]

    However, it is necessary to address Moananu because of the reliance placed on it by the applicant. In Moananu, the offender was sentenced for two offences of manslaughter and one offence of aggravated driving occasioning grievous bodily harm. One of the deceased was pregnant with twins. The death of the twins in utero did not result in additional manslaughter charges: their deaths were subsumed in the manslaughter charge for the death of their mother.

31. [154]

    The sentence was regarded as manifestly excessive, not because of objective factors but because the offender’s moral culpability was found to have been reduced by factors outlined in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37. The majority in this Court referred to the extreme deprivation to which the offender had been subjected throughout his childhood. Leeming JA said at [28]:

32. [155]

    Hamill J found at [81] that the applicant’s background was characterised by abandonment, family violence, dysfunction and exposure to alcohol.

33. [156]

    Thus, in Moananu, the offender’s subjective case was very powerful and must be taken to have significantly reduced the sentence which would otherwise have been appropriate absent such factors.

34. [157]

    The contrast between the present case and Moananu highlights the limitations of comparing sentences imposed by reference to raw data relating to the number of persons killed, harm done, injuries inflicted and matters of that nature. The sentencing discretion involves giving weight to many factors, both subjective and objective, with no quantification of the weight given to any, apart from the discounts for a plea of guilty or for assistance to authorities, which the Act requires to be quantified. In these circumstances, it is neither possible nor useful to derive a figure which enables any strict comparison between sentences to be made. This is why the High Court referred to “consistency of principle” at [49] in Hili v The Queen, rather than consistency of result. I am not persuaded that Moananu assists the submission that the present sentence is manifestly excessive.

35. [158]

    It is also necessary to address Mr Odgers’ submission that the sentence imposed by the sentencing judge was “crushing”. The concept of a “crushing sentence” was addressed by this Court in response to a similar submission by Mr Odgers in R v MAK; R v MSK [2006] NSWCCA 381; (2006) 167 A Crim R 159; where the Court (Spigelman CJ, Whealy and Howie JJ) said:

36. [159]

    I am not persuaded that any of the sentences indicated pursuant to s 53A(2)(a) of the Act for each offence was excessive. In any event, the aggregate sentence is the only sentence which is actually imposed. As explained by Leeming JA in Moananu at [9], what matters is the aggregate sentence since the degree of notional accumulation or concurrence of indicative sentences can give rise to different results.

37. [160]

    The sentence imposed on the applicant was lengthy because the crimes were so objectively serious and there were limited subjective factors in the applicant’s favour apart from his previous good character, remorse, good prospects of rehabilitation and unlikelihood of re-offending. In the present case, I consider it to be important that this Court avoid giving the impression that the applicant is entitled to a discount for multiple offending, although a significant level of concurrency is appropriate. While sentencing is not linear, it is important that each of the four lives lost and the harm done to the other three children be recognised as part of the harm done to the community. I am not persuaded that this Court ought intervene on the basis that the sentence might be regarded by the applicant as crushing.

38. [161]

    The present case was accepted by the parties at the sentence hearing before the sentencing judge to be unprecedented in several respects, including the number of deaths, as reflected in the four charges of manslaughter. Individualised justice required that the sentencing judge exercise the judicial discretion to impose a just sentence, having regard to all relevant objective and subjective factors: Dalgleish at [49] (Kiefel CJ, Bell and Keane JJ).

39. [162]

    His Honour’s carefully expressed and well-reasoned judgment explains how and why the aggregate sentence was imposed. There is no error in either the process or the result. The aggregate sentence imposed was neither unreasonable or plainly unjust, having regard to the number of offences and the substantial harm done to the community, as well as the limited subjective factors in the applicant’s favour.

Orders

1. [163]

   I propose the following orders:

   1. (1)

      Grant leave to appeal.

   2. (2)

      Dismiss the appeal.

2. [164]

   N ADAMS J: I have had the significant advantage of reading the judgment of Adamson J in draft. I agree with her Honour that no error has been shown in relation to ground 1. It was open to the sentencing judge to find that there was no causal connection between the applicant’s attention deficit hyperactivity disorder (“ADHD”) and his decision to drive on that fateful day. In those circumstances, no error within the fifth limb of House v The King is established (House v The King (1936) 55 CLR 499; [1936] HCA 40). Despite this, for reasons I explain below, the applicant’s ADHD was relevant to his subjective case.

3. [165]

   As for ground 2, after considering the competing submissions and the evidence upon which they were based, I have arrived at a different conclusion to Adamson J on the question of whether the aggregate sentence imposed was manifestly excessive. I am grateful to her Honour for her summary of what occurred before the sentencing judge, his Honour’s reasons on sentence and the respective submissions of the parties in this Court. My reasons for arriving at a different conclusion assume familiarity with the background set out in Adamson J’s judgment.

Ground 2: Manifest excess

1. [166]

   That judges of this Court might arrive at different conclusions as to whether a sentence is manifestly excessive (or manifestly inadequate) is hardly surprising. As Payne JA and Button J (Schmidt J in dissent) observed in Conte v R [2018] NSWCCA 209 at [9] in the context of considering a ground contending manifest excess:

2. [167]

   That is not to say that a judge of an intermediate appellate court considering such a ground is required simply to engage in a process of intuition (see Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 (“Hili”) at [60] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ) or simply consider whether he or she would have imposed a different sentence. As Bell P (as his Honour then was) recently observed in Byrne v R; Cahill v R [2021] NSWCCA 185 at [1] (“Byrne & Cahill”):

3. [168]

   The correct approach to a ground asserting manifest excess is well settled. The applicant must establish that the aggregate sentence imposed is “unreasonable or plainly unjust”. Adamson J has extracted the relevant principles as summarised in Hughes v R [2018] NSWCCA 2 at [86] by Payne JA, R A Hulme and Garling JJ (see also Obeid v R [2017] NSWCCA 221 at [443] per R A Hulme J, with whom Bathurst CJ, Leeming JA and Hamill and I agreed). Those principles identify what is not sufficient to establish such a ground: it is not sufficient merely to show that the sentence is “markedly different” from sentences imposed in other cases or that this Court might have exercised the sentencing discretion differently. Any assessment of such a ground must be made in the acceptance that there is no single correct sentence and judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle.

4. [169]

   Another principle summarised in Hughes v R is taken from observations of the High Court in Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [58] where Gaudron, Gummow and Hayne JJ stated:

5. [170]

   This passage was cited by the High Court with approval in Hili at [59]. Implicit in the Court’s statement is that there is a requirement to show a “difference” from other sentences that is such as to warrant appellate intervention. In order to ascertain whether there is such a difference, an intermediate appellate court will often need to have regard to other cases as part of the relevant assessment, albeit whilst exercising the requisite caution that each case will be different. The numerous statements of principle regarding the limitations of “comparable” decisions cannot lead to the result that they should all be put to one side completely given the need to identify a relevant “difference” in the sentence under appeal.

6. [171]

   In assessing a ground contending that a sentence is manifestly excessive, it is inevitable that a range of past sentences will become apparent. In Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194, Simpson J (as her Honour then was) said the following about this “range” at [303]-[304]:

7. [172]

   In Hili at [54], the High Court observed that this passage from DPP v De La Rosa “accurately identified the proper use of information about sentences that have been passed in other cases.” In Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2 at [40]-[41], French CJ, Hayne, Kiefel and Bell JJ said (footnotes omitted):

8. [173]

   A similar point was made, albeit in the context of sentencing for Commonwealth offences, in R v Pham (2015) 256 CLR 550; [2015] HCA 39 by French CJ, Keane and Nettle JJ at [26]-[27] (footnotes omitted):

9. [174]

   More recently, in Smith v R [2020] NSWCCA 181; 93 MVR 345 (“Smith”) Simpson AJA observed at [78]:

10. [175]

    A similar approach was taken by both Leeming JA and Hamill J (at [158]-[159]) in Moananu v R [2022] NSWCCA 85 (“Moananu”). Leeming JA observed the following at [7]:

11. [176]

    This approach was also taken by Beech-Jones J (as his Honour then was) (with whom Garling J and I agreed) in Director of Public Prosecutions v Abdulrahman [2021] NSWCCA 114 (“Abdulrahman”) (discussed below at [272]).

12. [177]

    It seems to me that having regard to other decisions is a valid approach, even if, such as here, there is no truly comparable case, so long as it is undertaken with the requisite caution. If the top of the range is the maximum penalty and a case is not considered to be the “worst case”, past cases can still be of assistance if only to assess how much worse a particular case is than the next highest sentence imposed.

13. [178]

    A similar difficulty arises when having regard to JIRS statistics. They have been described as a “blunt tool” but that does not mean that they are to be put to one side either, as can be seen from the passage in Barbaro extracted above at [172]. As Simpson AJA observed in Gibbons (a pseudonym) v R [2019] NSWCCA 150 at [148] (although her Honour was considering there an offence contrary to s 66A of the Crimes Act 1900 (NSW)):

14. [179]

    Although it is to be accepted that every case is different and that the criminal offending in this matter was very grave, I am satisfied that assistance can still be had from considering sentences imposed in other cases.

15. [180]

    So, how then is the question of manifest excess to be determined? In the present case, the maximum penalty is 25 years’ imprisonment (as set by s 24 of the Crimes Act 1900 (NSW)). There is no standard non-parole period prescribed in the table behind s 54D of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“the Sentencing Act”) nor could there be given the wide variety of offending contemplated under manslaughter. As I observed in R v Blake Davis [2021] NSWSC 235 at [10] (footnotes omitted):

16. [181]

    I propose to address the question of whether the aggregate sentence imposed on the applicant is unreasonable and plainly unjust under the following headings: the scope of the offence of vehicular manslaughter, the purposes of sentencing, the applicant’s subjective case, a consideration of “comparable” cases and relevant statistics, and the application of the totality principle in cases of criminal negligence where there have been multiple deaths.

17. [182]

    No challenge was made to the sentencing judge’s findings of objective seriousness. His Honour found the objective seriousness of each the four manslaughter offences to fall “near to the high end of the range”, but not in the “worst category”: R v Kilic (2016) 259 CLR 256; [2016] HCA 48. His Honour described the applicant’s criminal conduct as “a horrific example of unlawful and dangerous conduct and gross negligence”, where the applicant had “no regard for the safety of any other road users including his victims”. His Honour noted that the dangerous and aggressive driving behaviour was sustained over a significant period of time up to the tragic impact of the applicant’s vehicle with the seven child victims as they walked along a footpath adjacent to the road where he lost control. I have watched the CCTV footage which captured only brief glimpses of the applicant’s driving given the excessive speed. His Honour also noted that the applicant had ingested alcohol and illicit drugs that day. These factors led his Honour to state:

18. [183]

    His Honour also found the offence of driving dangerously causing grievous bodily harm to fall toward the high end of the range of objective seriousness but marginally below the objective seriousness of the offences of manslaughter upon the assessment of the harm suffered by the victim. Finally, his Honour found that the offences of causing bodily harm by misconduct fell marginally below the objective seriousness of the offence of dangerous driving causing grievous bodily harm upon the assessment of the harm suffered by the victims.

19. [184]

    His Honour had regard to the course of driving undertaken by the applicant up to the collision, the length of the journey during which he drove so dangerously and the number of other members of the community, including the victims, he put at risk. His Honour concluded that the driving amounted to menacing behaviour without regard to public safety within the meaning of s 118 of the Road Transport Act 2013 (NSW) and s 21A(2)(i) of the Sentencing Act.

20. [185]

    The applicant’s decision to drive at speed whilst intoxicated, having not eaten all day and having also taken cocaine and MDMA (3,4-Methylenedioxymethamphetamine), had catastrophic consequences both to the families of the children killed that day and the community. Adamson J has not set out the details of how the four young children died nor do I consider it necessary to do so. The tragedy received significant media attention at the time. That is unsurprising. What happened to the families of these children is every parent’s worst nightmare. Seven young children go out for ice cream and only three survive, one of whom is left with permanent cognitive impairment. It is a tragic reminder of how life can change in an instant

21. [186]

    Although his Honour observed that the conduct to which the applicant pleaded guilty could be relied upon by the Crown “for both unlawful and dangerous conduct and gross negligence in the prosecution of the manslaughter charges”, it seems to me that the applicant was sentenced on the basis of manslaughter by criminal negligence. The Crown prosecutor had submitted to the sentencing judge that the applicant’s “extreme negligence and gross irresponsibility can only be characterised as extremely serious criminal conduct. Further, his Honour observed the following in his finding of objective seriousness:

22. [187]

    Manslaughter based on criminal negligence is a species of involuntary manslaughter. As the High Court (Gleeson CJ, McHugh, Gummow and Hayne JJ) observed in The Queen v Lavender (2005) 222 CLR 67; [2005] HCA 37 (“Lavender”) at [2], there are two categories of involuntary manslaughter at common law: manslaughter by an unlawful and dangerous act carrying with it an appreciable risk of serious injury and manslaughter by criminal negligence. The High Court went on to note:

23. [188]

    The elements necessary to be established in a case of manslaughter by criminal negligence are those set out in Nydam v R [1977] VR 430 (“Nydam”) at 445 approved by the High Court in Lavender, and also approved in Burns v The Queen (2012) 246 CLR 334; [2012] HCA 35 (“Burns”) at [19] where French CJ stated the following (citing Nydam):

24. [189]

    French CJ also observed in Burns (at [7]) that the criteria for establishing each type of involuntary manslaughter are not necessarily mutually exclusive: the same set of facts may give rise to liability under each of them. Burns concerned the death of a person by a drug overdose.

25. [190]

    In Lane v R [2013] NSWCCA 317, Bathurst CJ, with whom Simpson J (as her Honour then was) and Adamson J agreed considered the elements of the two forms of involuntary manslaughter, albeit not in a vehicular manslaughter case, at [51]-[65], and at [62] observed that in order to sustain a conviction for manslaughter based on criminal negligence it is necessary that the Crown prove four elements:

26. [191]

    Thus, an offender being sentenced for vehicular manslaughter by criminal negligence is being sentenced on the basis that, although he or she never intended to cause death or grievous bodily harm, there was such a serious breach of their duty to others on or near the road on which they were driving that it merited criminal punishment.

27. [192]

    Although the same set of facts may give rise to liability under each of the two categories of involuntary manslaughter, there is authority for the proposition that, except in extreme cases (where a vehicle is deliberately used as a weapon), vehicular manslaughter cannot be established on the basis of a dangerous and unlawful act.

28. [193]

    In R v Pullman (1991) 25 NSWLR 89 (“Pulman”), Hunt CJ at CL (with whom Campbell and Newman JJ agreed) considered an appeal against conviction on one charge of vehicular manslaughter (and of two charges of causing grievous bodily harm by unlawful act) on the basis that the primary judge erred in holding that there was a prima facie case. The Crown alleged that while driving and approaching a blind turn, the appellant had crossed an unbroken centre line on the road which caused a vehicle travelling in the opposite direction to take evasive action, occasioning a crash. The offence of culpable driving under s 52A of the Crimes Act (as then formulated) was not applicable to the appellant as his white Holden Commodore did not make any impact with another vehicle.

29. [194]

    Allowing the appeal and quashing the convictions, Hunt CJ at CL concluded (at 97) that a mere breach of a statutory or regulatory prohibition (in this case, crossing the unbroken centre line) would not, without more, constitute an “unlawful act” such as to support a conviction of unlawful and dangerous act manslaughter. His Honour said:

30. [195]

    In R v Robert Borkowski [2009] NSWCCA 102; 95 A Crim R 152 (“Borkowski”), Howie J (with whom McClellan CJ at CL agreed) considered the correctness of Pullman. Simpson J (as her Honour then was) agreed generally with Howie J but made separate observations as to the correctness of Pullman. In that case, the Court was considering a Crown appeal in relation to an offender who, with two other vehicles, had raced at speed on a public road. Howie J queried whether vehicular manslaughter, other than in extreme cases, can ever be categorised as a form of manslaughter by unlawful and dangerous act (at [50]-[54] and [57]). Simpson J expressed doubts about the decision in Pullman at ([3]). Ultimately, it was decided that the question did not need to be determined given that it was an appeal against sentence. Instead, Howie J observed the following at [49] in response to a suggestion that vehicular manslaughter by gross criminal negligence might be less serious than vehicular manslaughter by dangerous and unlawful act:

31. [196]

    The question of the correctness of Pullman appears to remain unresolved. In R v Cahill; R v Byrne [2020] NSWDC 224, Lerve DCJ observed at [49] that the basis of the manslaughter charge in that case (arising out of street racing, discussed further below at [271]) was criminal negligence “as it must be noting the decisions of R v Pullman and R v Borkowski”. That observation by his Honour was not challenged or otherwise commented on in the subsequent appeal to this Court.

32. [197]

    On the other hand, in R v Nguyen [2010] VSC 442, Lasry J expressed some doubt about the decision in Pullman in the context of considering whether the mishandling of a firearm could amount to manslaughter by a dangerous and unlawful act (in addition to one of negligence). In that context, his Honour noted the following at [28]:

33. [198]

    Although the correctness of the decision in Pullman on this issue remains unresolved, Hunt CJ at CL accepted in that case that manslaughter by way of dangerous and unlawful act would be applicable in an extreme case where the motor vehicle was deliberately used as a weapon. Two decisions which illustrate such a scenario are Lees v R [2019] NSWCCA 65 (“Lees”) (discussed below at [284]) and R v Chandler (No. 2) [2017] NSWSC 1758 (“Chandler (No. 2))”. In Lees, the offender killed her de-facto partner by driving her vehicle at him with the intention of hitting him. As the Court observed at [11]:

34. [199]

    There may well be a fine line between manslaughter by dangerous and unlawful act and murder when the offender has aimed his or her vehicle at the victim resulting in their death, as the High Court (Gleeson CJ, McHugh, Gummow and Hayne JJ) observed in Lavender at [10]. The offender in Lavender was found guilty of manslaughter by criminal negligence after he chased some children whilst he was driving a front-end loader at a sand mine. As he drove through dense scrub, he could not see the children and ran over a child causing injuries leading to death. In that factual context, the Court observed (at [10]):

35. [200]

    In Chandler (No. 2), the 22-year-old offender drove at speed in a stolen vehicle. In an attempt to escape a police pursuit he deliberately drove through the front fence of a residential property, colliding with, and killing, an 18-month-old child (two other children suffered minor injuries). Taking into account matters on a Form 1 relating to the theft of the vehicle and escaping from police, the offender was sentenced to 19 years’ imprisonment (non-parole period 13 years); reduced from 20 years after applying a 5% discount for a late guilty plea). Johnson J described the basis of his plea as follows at [89]:

36. [201]

    In Chandler (No. 2), the Crown submitted that it was a “worst case” for manslaughter and that the Court would find the offender himself (and not just a reasonable person) actually realised that his act of driving through the fence and into the backyard exposed another person or persons to an appreciable risk of serious injury. His Honour noted (at [92]) that in approaching that issue it was important to consider the distinction between manslaughter and murder by reckless indifference to human life; the latter arises when an offender realised that the act would probably cause the death of a person but continued to commit the act regardless of that consequence: The Queen v Crabbe (1985) 156 CLR 464 at 469-470; [1985] HCA 22. Johnson J was ultimately satisfied beyond reasonable doubt that Mr Chandler realised that there was an appreciable risk of serious injury to persons in the backyard when he drove through the fence of the property, and he was sentenced on that basis. His Honour concluded (at [96]):

37. [202]

    Thus, the offender in Chandler (No. 2) was sentenced on the basis that whilst travelling at speed and having taken ice (crystal methamphetamine) he deliberately used his vehicle as a battering ram to smash through a fence on private property realising that there was a risk of serious injury to another person if he did so. The mental element upon which Mr Chandler was sentenced was very close to that of murder. As Spigelman CJ observed in R v Forbes [2005] NSWCCA 377; 160 A Crim R 1 at [133] (citations omitted):

38. [203]

    If the gravest manslaughters are those which fall just short of murder, then it follows that the basis upon which Mr Chandler was sentenced is such a case. That is a very different case to the applicant’s case. I will return to the decision in Chandler (No. 2) further below.

39. [204]

    It is to be accepted that there is no category of manslaughter that is to be considered more or less serious than others and it may be the case that often the basis of the involuntary manslaughter charged will not impact upon the sentence to be imposed. Similar observations to those made by Howie J in Borkowski were repeated by this Court in R v Loveridge [2014] NSWCCA 120, extracted by Adamson J above at [142]. But that does not mean that the basis upon which a person is to be sentenced for manslaughter does not need to be identified. The above cases suggest that offenders in NSW have only been sentenced for vehicular manslaughter by dangerous and unlawful act (carrying with it an appreciable risk of serious injury) when they have aimed their vehicle with the intention of ramming either a fence on a residential property or a person. That is not this case. It seems to me that, whether or not it impacts on the sentence imposed, it is still important to identify with clarity the basis upon which an offender is to be sentenced. I propose to proceed on the basis that the applicant was sentenced for manslaughter by criminal negligence for the reasons I have explained above at [191].

40. [205]

    Another relevant factor when sentencing for vehicular manslaughter is to note that it is a more serious offence than the aggravated statutory offences in s 52A(2) of the Crimes Act. Section 52A(1) of the Crimes Act provides that:

41. [206]

    An aggravated form of this statutory offence is provided in s 52A(2) which is in these terms:

42. [207]

    Subsection 52A(7) defines “circumstances of aggravation” as follows:

43. [208]

    In some cases, it may well be a matter of prosecutorial discretion as to whether an offender is charged with the aggravated statutory offence or manslaughter by criminal negligence. By way of example, an offender who causes the death of one or more persons as a result of engaging in a police chase could be liable either for the statutory offence or the offence of manslaughter. The relevant distinction, whether they were driving to escape pursuit by a police officer (s 52A(2)) or whether they were driving in such a breach of their duty to other members of the public as to merit criminal punishment, may often be a fine line.

44. [209]

    It is well settled that when an offender, such as the applicant, is being sentenced for vehicular manslaughter he or she is being sentenced for the most serious of the driving offences which cause a death. As Howie J observed in Borkowski at [58] (in a passage referred to by Bennett DCJ in the applicant’s sentencing decision):

45. [210]

    A further difference between offences contrary to s 52A of the Crimes Act and vehicular manslaughter is that there is a guideline judgment in relation to the former: R v Whyte (2002) 55 NSWLR 252; [2002] NSWCCA 343. That guideline judgment is discussed in some detail in Moodie v R [2020] NSWCCA 160 in which this Court (Bell J (as his Honour then was) with whom Davies and I agreed), allowed an appeal on the grounds, inter alia, that the sentencing judge had failed to have regard to the guideline. That guideline does not apply to vehicular manslaughter. Moreover, it is concerned with “typical” offenders and not with a case such as the applicant’s.

46. [211]

    An issue arose during the hearing in this Court as to whether the sentencing judge found these offences to be near to the high end of the range for manslaughter or near to the high end of the range for vehicular manslaughter. Given that his Honour was only provided with vehicular manslaughter cases and the focus of the submissions before him was on vehicular manslaughter, I am prepared to accept that his Honour was referring to the range for vehicular manslaughter. But that does not really assist the applicant given that there are no categories of manslaughter which are more or less serious than others. What matters in each case is the relevant criminal conduct.

47. [212]

    In sentencing the applicant for his criminal negligence which led to the death of four children, the serious injury of a fifth child and further injury to another two children, the sentencing judge was required to have regard to the relevant purposes of sentencing which, as is often said, pull in different directions. Those purposes are set out in s 3A of the Sentencing Act:

48. [213]

    The sentencing judge addressed the relevance of these purposes in his Honour’s reasons in these terms at:

49. [214]

    His Honour thus accepted that in the applicant’s case the sentencing purposes of specific deterrence, the need to protect the community and the need for rehabilitation were of lesser significance. His Honour found the need for general deterrence, to make the offender accountable for his actions, denunciation and to recognise the harm done to the victim and the community to have greater significance.

50. [215]

    His Honour’s emphasis on the need for general deterrence is consistent with the principles derived from the relevant decisions. It is well settled that general deterrence is of particular relevance in driving cases, as Adamson J has observed. Most adults drive a car at one time or another. There is a hierarchy of driving offences with manslaughter at the pinnacle. Many people are dealt with daily for speeding or driving whist intoxicated. Although losing demerit points causes inconvenience and the requirement to have an interlock is expensive and inconvenient, the numerous people every day dealt with for these offences may not fully comprehend that it was often only sheer luck that they too did not kill someone. Driving a motor vehicle is like driving a weapon. The public needs to be made aware that there will be stern punishment in the tragic event that one or more people are killed or incapacitated as a result of criminally negligent driving.

51. [216]

    It is to be accepted that s 3A(e) and (f) of the Sentencing Act were important parts of this sentencing process. There was a need to make the applicant accountable for his actions, given their tragic consequences, and there was a need for denunciation of his conduct.

52. [217]

    The final purpose of sentencing is to recognise the harm done to the victim of the crime and the community. His Honour placed “substantial weight” on this purpose. Section 28(2)(a) of the Sentencing Act provides that where a primary victim of an offence has died as a result of the offence, a “family victim” may prepare a victim impact statement (“VIS”) that contains particulars of the impact of the primary victim’s death on the family victim and other members of the primary victim’s immediate family. Section 30E(1) and (3) of the Sentencing Act provides for how a court can use such a statement as follows:

53. [218]

    The Crown made application in this matter pursuant to s 30E(3)(a) of the Sentencing Act that the numerous VISs provided be taken into account on the basis that the harm done to the families is an aspect of the harm done to the community, consistent with s 3A(g). His Honour did so.

54. [219]

    His Honour stated that it was appropriate to bring to account the observations of Howie J in R v Palu [2002] NSWCCA 381; 134 A Crim R 174 (“Palu”) and Johnson J in R v Burton [2008] NSWCCA 128. The effect of those decisions is that the attitude of the victim cannot interfere with the proper exercise of the sentencing discretion but where a serious crime is committed the community is entitled to retribution. Further, crimes of violence committed in public require deterrent sentences to “protect the public, not to mollify the victim” (see Palu at [37]).

55. [220]

    Putting to one side the VIS of the primary victim Charbel Kassas (who suffered grievous bodily harm), his Honour found that the VISs of the secondary victims provided “ample” undisputed material of the “extensive and substantial emotional harm to the family victims and correspondingly to the community in general”. His Honour also attributed substantial weight to the extent of the harm the applicant has caused to each individual victim and to the community generally, beginning with the family members who are now forced to live on without the opportunity to see their children develop to their full potential in life.

56. [221]

    The Sentencing Act does not explain how the court is to determine when it is “appropriate” to consider the impact of the offence on the deceased’s family. As McCallum J (as her Honour then was) observed in R v Halloun [2014] NSWSC 1705 at [46], the provision cannot be taken to suggest that some lives are more valuable than others. All human lives are of equal value. Every unlawful death causes harm to the community and to the family of the person killed. But, given the facts of this case, I would proceed on the basis that his Honour found this consideration to be of “substantial weight” on the basis that so many deaths were occasioned by the driving in question.

57. [222]

    The primary judge summarised the VISs in some detail in his sentencing remarks. They are expressive of the immeasurable grief suffered by so many people as a result of these tragic deaths.

58. [223]

    Daniel and Leila Abdullah are the parents of three of the children killed: Antony, Angelina and Sienna. A fourth child of theirs, Leanna, was also injured. All of the siblings have cousins who have suffered the loss as well. Mr Abdullah spoke eloquently of how his wife was “broken” and how he feels pain every day, waking up with “a massive void etched in [his] heart”. Mrs Abdullah spoke of how her heart has been “pierced”, how she is “broken” but needs to live for her husband and children. She had thought she would die before her children as that is the “circle of life”. She is “no longer living ... just existing” and joy and love have been taken from her house leaving her empty inside. She will never see her children grow, graduate, celebrate their birthdays or weddings, or see her grandchildren.

59. [224]

    Veronique Sakr’s parents, Bob and Bridget, both wrote letters describing the harsh impact of her death. Mr Sakr stated that many of the family cannot even bear to hear her name as it is too hard. Both were at the scene shortly after the collision and described the horror that confronted them there. Mr Sakr described every day as a struggle. Mrs Sakr described how their lives have been turned upside down and how “life is just about existence to make it to the other side the best way possible”. She described no longer feeling part of the world.

60. [225]

    Veronique’s brother Michael also spoke of the profound loss of his sister. He was not with the group of seven children as he was playing a soccer match. He wonders if he could have saved his sister had he been there that day and he must live with that thought every day of his life. Craig McKenzie, Bridget Sakr’s fiancé, also described their lives changing forever and how they have all received a life sentence, describing the tragedy as completely avoidable.

61. [226]

    Rania Kassas is Charbel’s mother and described in detail the trauma of his brain injury, the long stint in the intensive care unit and that at 12 years old he functions as a four-year-old. She arrived at the scene and thought there had been an explosion as the surviving children were all covered in blood. She described realising the children were dead and hitting herself hoping she would wake up from her nightmare.

62. [227]

    Marbel Kassis received a fractured jawline and stitches on the back of her left knee. She described the impact on her family. She described witnessing the other children dead at the scene. She described herself as sad and her family as angry after the accident.

63. [228]

    As the sentencing judge observed, there was much to be said in favour of the applicant. At the time of the accident, he was a 28-year-old man of previous good character. He grew up as one of two children. His father was a police officer and his mother worked in retail. He had no brothers but one sister who was born with cystic fibrosis. She died when the applicant was 19 years old. They were close and her death had a profound effect on him. The applicant is very close to his parents and lived at home until a few months prior to the collision when he had moved out of home for the first time to be closer to his work.

64. [229]

    The applicant left school in Year 10. He was born with a learning disability, ADHD, which appears to have been resistant to medication. His treatment for this condition was well documented and not challenged by the Crown. He was diagnosed at the early age of five years old and was medicated for it, but the medication gave him facial tics. He was under the care of councillors and paediatricians in his primary school years and continued to struggle in class and socially in his high school years. He left school having completed Year 10. His parents both provided letters to the Court about the difficulties the applicant suffered at school due to his diagnosis. Dr Furst set out further details as well.

65. [230]

    The applicant worked as an apprentice chef between the ages of 18 and 19 and when the restaurant went into liquidation, he continued in the hospitality industry working as a kitchenhand and cook until he was about 21 years old. Between the ages of 19 and 20 he also worked intermittently as a disc jockey. When he was about 24 or 25 years of age, he started driving trucks for a living. He was employed as a truck driver for Price Chemicals for five years and had worked in the same position with Formula Chemicals for the year prior to the offences. His current employer provided a favourable character reference for the applicant which has been summarised by Adamson J above at [88].

66. [231]

    The applicant wrote a letter to the Court below in which he described how his “worst punishment” was waking up every day knowing that he was responsible for the horrible accident that will stay with him forever. He apologised to the family of the victims for what he has put them through and told them that he prayed for them every day. He also stated that he will never again touch drugs or alcohol nor drive a motor vehicle.

67. [232]

    The sentencing judge found that the applicant was genuinely remorseful, had good prospects of rehabilitation and was unlikely to reoffend.

68. [233]

    The blemish in the applicant’s otherwise strong subjective case was the fact that he had a traffic record which included speeding tickets. He was fined for exceeding speed limits in February 2009, February 2010, June 2013, November 2013, February 2018, and November 2018. He was also fined for driving unlicensed (his previous license had expired) in November 2013. His record did not show any instances of driving under the influence of alcohol or drugs.

69. [234]

    The applicant identifies as a Christian and had been attending services in custody. Dr Furst noted that the applicant finds sessions with the chaplain, whom he sees on a weekly basis, helpful and the applicant’s father stated that the applicant had told him that he reads the Bible every day and prays for the families involved. The applicant expressed this in his letter to the victims’ families as well.

70. [235]

    As will be seen below, offenders who come before the Court for vehicular manslaughter all have differing subjective cases. This applicant’s subjective case was more favourable than many of them.

71. [236]

    The applicant received an aggregate sentence under s 53A of the Sentencing Act. Section 53A(2) requires that the court, in imposing an aggregate sentence, should indicate the individual sentences which would otherwise have been imposed, had the offender been separately sentenced for each offence. It is well settled that the discount for a plea of guilty is to be applied to the indicative sentences and not the aggregate sentence: PG v R [2017] NSWCCA 179.

72. [237]

    As Adamson J has observed, it is permissible to have regard to the indicative sentences in order to address a ground asserting manifest excess of an aggregate sentence: JM v R [2014] NSWCCA 297; 246 A Crim R 528 at [40]. Despite this, as Bathurst CJ observed in Kerr v R [2016] NSWCCA 218; 78 MVR 191 at [114], “the fact that the indicative sentences are excessive does not necessarily mean that the aggregate sentence is excessive.”

73. [238]

    Given that there are no other vehicular manslaughter decisions in which four deaths have occurred, it is helpful to compare the indicative sentences in the present cases with the (non-aggregate) sentences or indicative sentences in other matters. Before turning to consider such decisions, including those placed before both the sentencing judge and this Court, I note what appears to be some divergence of opinion in this Court as to whether it is ever appropriate to try and work out the pre-discounted starting point for an aggregate sentence, given that the discount for the guilty plea is applied to the indicative sentences prior to the application of the totality principle.

74. [239]

    In Chartres-Abbott v R [2021] NSWCCA 239 Brereton JA (with whom Campbell and Hamill JJ agreed) acknowledged at [23] that the discount is to be applied to the indicative sentences but went on to state (footnotes omitted):

75. [240]

    In BB v R [2021] NSWCCA 283 (“BB”), Wilson J, with whom Bathurst CJ and Wright J agreed, cited the passage above and then observed at [68]:

76. [241]

    In Ibbotson (a pseudonym) v R [2020] NSWCCA 92 (one of the decisions relied upon by Wilson J in BB), Leeming JA, Rothman J and I upheld a ground of appeal on the basis that applying the discount to the aggregate sentence rather than to the indicative sentences is the sort of error which requires this Court to intervene and re-sentence consistent with the decision in Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37. The reason is that, as I observed at [145], applying the discount to the aggregate sentence rather than the indicative sentences has the capacity to affect the outcome. Leeming JA explained why that is so at [11]-[13]:

77. [242]

    The last observation by Leeming JA reflects the totality principle discussed further below.

78. [243]

    It seems to me that the divergence of opinion on this point is, for practical purposes, between, on the one hand, identifying the correct approach under s 53A of the Sentencing Act and, and on the other hand, finding a meaningful way to compare aggregate sentences imposed following pleas of guilty with those imposed following a trial. It is only after a proper application of the totality principle that an aggregate sentence is arrived at but courts, both at first instance and on appeal, will often be asked to compare discounted and undiscounted aggregate sentences for the purposes of fixing an appropriate sentence, or in order to comply with the parity principle. There must be a shorthand way for this to be achieved.

79. [244]

    By way of illustration of the problem, in oral submissions Mr Odgers described the applicant’s undiscounted sentence (prior to the application of the 25% discount), as being about 37 years’ imprisonment. This is not a precise figure for the reasons I have already stated. The accurate way to describe the applicant’s undiscounted sentence of imprisonment is: 19 years plus 19 years plus 19 years plus 19 years plus 8 years plus 20 months plus 20 months, which adds up to an undiscounted sentence, before the application of the totality principle, of 87 years and 4 months. It is difficult to see how describing the aggregate sentence (accurately) as 87 years and 4 months before the application of both the 25% discount on each indicative sentence and the totality principle makes it possible to assess it in a meaningful way.

80. [245]

    For my part, I would proceed on the basis that although the undiscounted sentence is 87 years and 4 months before the application of the totality principle, it is permissible to use 37 years’ imprisonment as a rough estimate of the actual undiscounted sentence. The approach is taken purely for the purpose of a shorthand comparison acknowledging that it may be a few years out either way. The precise figure cannot be known because one of the purposes of the enactment of s 53A was to remove the requirement of sentencing judges to state the start and finish dates of each sentence thus the precise nature of the application of the totality principle cannot be identified. But it seems to me that there needs to be some way to nominate approximately what a particular undiscounted aggregate sentence is for the purpose of comparison. I note that Hamill J and Leeming JA took the approach that this can be done as a “rough guide” in Moananu. That is all it is: a rough guide.

81. [246]

    I turn then to consider other decisions concerning vehicular manslaughter. Most of the relevant decisions were provided to the sentencing judge by counsel for the Crown appearing below (who did not appear on this appeal). He handed up a schedule of decisions to assist the sentencing judge. They were R v Cramp [1999] NSWCCA 32; 110 A Crim R 198, Lawler v R [2002] NSWCCA 85; 169 A Crim R 415, R v Cameron [2005] NSWCCA 359; 157 A Crim R 70, R v Robert Borkowski [2009] NSWCCA 102; 195 A Crim R 1; Woodbridge v R [2020] NSWCCA 185; 208 A Crim R 503; Spark v R [2012] NSWCCA 140; Day v R [2014] NSWCCA 333; R v Chandler (No 2) [2017] NSWSC 1758; Smith v R [2020] NSWCCA 181; and R v Moananu [2020] NSWDC 672.

82. [247]

    The applicant’s counsel below relied upon the decisions in R v Cahill; R v Byrne [2020] NSWDC 224 and Duncan v R [2012] NSWCCA 78, in addition to Day, Lawler, Borkowski, Cameron and Cramp.

83. [248]

    In oral submissions before the sentencing judge the Crown submitted that every case is different but also that, if the sentencing judge turned to consider the cases provided, the one to look at in particular was R v Moananu [2020] NSWDC 672. It was submitted that it was the closest case factually to the present case. Counsel for the Crown later returned to this point and repeated that the case of Moananu “might be of assistance”. The applicant’s counsel submitted that the cases were not meant to be “comparative” but were provided for “judicial reflection” and “contemplation” given that another case with four deaths could not be found.

84. [249]

    His Honour did not expressly refer to Moananu in his sentencing reasons. Rather, he noted that “comparative cases” had been provided but there was no one case that was comparable. I take this to mean that none of the other cases concerned four deaths. His Honour then noted that after the hearing both parties had brought the decision of Crowley v R [2021] NSWCCA 45 (“Crowley”) to his attention. That decision is summarised in some detail in his Honour’s reasons. It concerned an offender charged with manslaughter and three counts of aggravated dangerous driving causing grievous bodily harm. In respect of the sole count of manslaughter the indicative sentence was 11 years’ imprisonment and for the other three offences the indicative sentences were 4 years and 6 months’ imprisonment. An aggregate sentence of 14 years and 3 months was imposed with a non-parole period of 10 years. An appeal to this Court was dismissed. That offender had driven at speed and engaged upon a sequence of dangerous manoeuvres until ultimately coming into collision head-on with another motor vehicle. The sentencing judge observed:

85. [250]

    In this Court the applicant relied upon a number of decisions to assist the Court in relation to this ground. One of those cases was the Court of Criminal Appeal decision in Moananu. Since the applicant was sentenced, Mr Moananu has successfully appealed to this Court against the severity of the aggregate sentence imposed on him. This was acknowledged by the Crown, but it was submitted that the decision in Moananu was distinguishable on the basis that Mr Moananu had Bugmy factors (Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37), and the applicant did not. Having read that decision closely, I am unable to accept that the applicant’s background alone can account for the significantly different indicative sentences in that matter. Moreover, although Leeming JA described the evidence of Mr Moananu’s deprivation as powerful, he also expressly stated the following at [28]:

86. [251]

    Although Hamill J took a more favourable view of the applicant’s Bugmy factors when re-sentencing the applicant, I am not satisfied that that factor alone can account for the significant differences in the indicative sentences in that matter as well as the aggregate sentence imposed, as will be seen in the discussion of that decision below.

87. [252]

    At the time that this applicant was sentenced, Mr Moananu had received the highest sentence of all the decisions put before the sentencing judge by the Crown. It was the one decision that the Crown identified as being the most relevant. The sentencing judge was satisfied that the applicant’s case was more serious than any of the cases he had been provided with. For my part, the fact that the sentence in Moananu relied upon by the Crown before the sentencing judge as being of the most assistance has recently been reduced by this Court is a matter of some relevance.

88. [253]

    Mr Moananu pleaded guilty to two counts of manslaughter contrary to s 18 of the Crimes Act and one count of aggravated dangerous driving occasioning grievous bodily harm. In relation to the second of the manslaughter counts, the sentencing judge took into account three related traffic offences pursuant to s 32 of the Sentencing Act: driving on the wrong side of the road and causing bodily harm to a fourth victim, driving without a licence, and driving while cannabis was present in his blood.

89. [254]

    The high range prescribed concentration of alcohol is 0.150 milligrams of alcohol per 100 millilitres of blood. Mr Moananu’s reading was 0.204 mg/100ml. That is four times the legal limit (0.05 mg/100ml) to drive in New South Wales. The people killed were a 17-year-old and her young aunt who was pregnant with unborn twins who also died in the collision. The only surviving passenger was her husband who sustained very serious physical and psychological injuries requiring ongoing treatment and monitoring.

90. [255]

    Mr Moananu had spent the day drinking and gambling at a hotel then drove home whilst highly intoxicated. He drove in an erratic manner, weaving in and out of lanes whilst speeding to a degree described as “ridiculous” by an eyewitness. He was seen to be tailgating other vehicles and switching lanes without notice. When he mounted a concrete median strip, his car rotated and became airborne. He then crashed into a vehicle travelling in the opposite direction carrying the victims. There were signs that indicated that the speed limit was reduced due to roadworks. The erratic and dangerous driving continued over more than 6 km. One eyewitness described his driving just before the point of impact as “the craziest thing I have ever seen anyone do”.

91. [256]

    Mr Moananu had an unfortunate driving record and was unlicenced at the time of the collision. He had refused a breath test in 2012 and was disqualified as a result. He was also suspended from driving on numerous other occasions for speeding and refusing to display his “P-plates”. He also had a conviction for damaging property in 2016.

92. [257]

    Mr Moananu pleaded guilty at an early stage and received a 25% discount. He was remorseful. He was 29 years old at the time of the collision. He presented “a sad and compelling subjective case” and “had a childhood history of abandonment, familial violence, dysfunction, and exposure to alcohol”. He had received injuries in the collision. Mr Moananu was initially sentenced to an aggregate sentence of 15 years’ imprisonment with a non-parole period of 10 years. That was the sentence to which the sentencing judge’s attention in the current matter was drawn. The indicative sentences for the two manslaughter offences were 8 years and 6 months and 9 years (including the Form 1 matters) respectively and 4 years and 6 months for the aggravated dangerous driving occasioning grievous bodily harm.

93. [258]

    The appeal to this Court was allowed by majority. Price J was in dissent. Hamill J (with whom Leeming JA agreed) upheld the appeal and re-sentenced the applicant to an aggregate sentence of 12 years and 6 months with a non-parole period of 8 years and 4 months. The indicative sentences for manslaughter were 7 years and 6 months and 8 years and 3 months and for the aggravated driving causing grievous bodily harm was 4 years and 6 months. Those are to be compared with the indicative sentences of 14 years and 3 months for this applicant’s manslaughter offences.

94. [259]

    The judges in the majority accepted the finding of the sentencing judge that the objective seriousness of the two offences of manslaughter fell within the high range but not within the worst category of such cases.

95. [260]

    The criminality involved in Moananu is broadly the same as the current applicant’s insofar as the relevant driving was concerned. The distance travelled was similar (Mr Moananu reached a minimum average speed of at least 112 km/h whereas the applicant reached the speeds described by Adamson J above at [65]). Mr Moananu was more intoxicated, but the applicant had also consumed cocaine and MDMA. Mr Moananu was unlicenced, had a worse traffic history and a minor criminal conviction. The most striking feature of his subjective case was his profoundly deprived background. As Hamill J observed at [169]:

96. [261]

    Even accepting that Mr Moananu had a childhood of profound childhood deprivation, and this applicant did not, the indicative sentences for the applicant are nearly double that of Mr Moananu. The applicant’s aggregate sentence was over twice of Mr Moananu’s which raises questions about the application of the totality principle in this case which I will address further below. The significant distinguishing feature in the applicant’s case is the number of deaths but that is relevant to the aggregate sentence rather than the indicative sentences.

97. [262]

    Although there are no other cased involving four deaths, I have found the following cases to be of some assistance.

98. [263]

    The decision in R v Cameron [2005] NSWCCA 359; 157 A Crim R 70 is factually similar but, as the Crown submitted, is of less assistance as it was a Crown appeal prior to the enactment of s 68A of the Crimes (Appeal and Review) Act 2001 (NSW). The offender was sentenced for three counts of manslaughter and one of dangerous driving causing grievous bodily harm arising out of a collision with a telegraph pole. The driver had never been licenced. The collision was on his 21st birthday. His blood alcohol concentration was in excess of 0.114mg/100ml. There was evidence that he had consumed both methamphetamine and cannabis prior to driving. At the time of the collision, the offender was travelling well over the speed limit and was subject to a good behaviour bond. After this Court intervened, he was sentenced to a total effective sentence of 9 years with a non-parole period of 6 years’ imprisonment.

99. [264]

    In Lawler v R [2007] NSWCCA 85; 169 A Crim R 415, the collision killed one person, injured two others and caused less serious injuries to others. The offender had knowingly driven an unregistered and uninsured prime mover and trailer with defective brakes. When the brakes failed on a long, steep incline, the prime mover collided with 33 vehicles. A sentence of 10 years and 8 months with a non-parole period of 8 years was held not to be manifestly excessive for the manslaughter count, which was also the total effective sentence.

100. [265]

     In Duncan v R [2012] NSWCCA 78, the female driver was 36 years old. The accident occurred on a country road. The five passengers in the vehicle were teenagers. Ms Duncan let one of the passengers drive and taunted them to go faster (up to 210km/h) before taking the wheel and indicating she would go even faster. When she accelerated to a speed of up to 200km/h, she was unable to take a bend in the road and crashed into bushland, colliding with some trees. Two of the passengers were killed and three suffered serious injuries. She was charged with two counts of manslaughter and three counts of dangerous driving causing grievous bodily harm. Her appeal against an overall (not aggregate) sentence of 12 years and 6 months with a non-parole period of 8 years was dismissed. Sentences of imprisonment of 9 years and 6 months with non-parole periods of 5 years were imposed for each manslaughter offence and fixed terms of imprisonment for 3 years were imposed for the dangerous driving offences.

101. [266]

     In Spark v R [2012] NSWCCA 140 (“Spark”), the offender had never held a licence, was on parole for car theft and drove while experiencing drug withdrawal after using methylamphetamine and amphetamines. He participated in a lengthy police pursuit and ultimately drove onto the wrong side of the road at which time he crashed into a car travelling into the opposite direction killing two people: a woman and her 18-year-old daughter. This Court dismissed an appeal against a total effective sentence of 15 years with a non-parole period of 11 years and 3 months.

102. [267]

     R v Winter [2012] NSWCCA 218; 225 A Crim R 572 (“Winter”) was a Crown appeal against a sentence imposed for two counts of manslaughter. It was decided after the introduction of s 68A of the Crimes (Appeal and Review) Act. The offender had previously blacked out whilst driving and been told not to drive. She was on morphine tablets for pain and migraines. She smoked cannabis before driving, suffered a blackout while driving, and killed two pedestrians when her vehicle mounted the kerb. She had a criminal history (for dishonesty) and a traffic history of speeding. She pleaded guilty. She was also found to have lied to the sentencing judge. After intervention by this Court aggregate sentence of 9 years’ imprisonment with a non-parole period of 6 years with indicative sentences of 7 years for each count was imposed.

103. [268]

     In Woodbridge v R [2010] NSWCCA 185, 208 A Crim R 503, the offender was convicted after trial of one count of manslaughter and one count of dangerous driving occasioning grievous bodily harm, the harm being that the victim suffered a stroke and was wheelchair bound. This is one of the few cases where no discount was applied for any plea of guilty. The offender’s blood alcohol concentration was nearly double the current applicant’s, being around 0.277mg/100ml. The offender drove for 9 km during the daytime in a built-up area in the vicinity of schools and shopping centres. Following a successful Crown appeal, he received a term of imprisonment of 9 years with a non-parole period of 6 years. The manslaughter sentence was increased to 7 years with a non-parole period of 4 years. Relevant to the offender’s subjective case is that she had suffered from depression and alcohol abuse and had previously been convicted of driving with a high range PCA. She also presented evidence of ongoing psychiatric issues.

104. [269]

     In Borkowski, discussed above at [195], Howie J noted at [59] that the driving in that case was more serious than the other motor manslaughter cases put before the Court in that appeal because it involved three vehicles all being driven dangerously in a joint enterprise. There were two deaths. The Court considered that the objective seriousness was well beyond that in Cameron. I note that the Court in Borkowski had regard to other decisions in assessing the ground of manifest excess if only to distinguish them. In this case, the sentencing judge had imposed a total effective sentence of 9 years’ imprisonment with a non-parole period of 6 years (made up of a fixed term of imprisonment of 4 years on the first count of manslaughter, and a term of 7 years’ imprisonment with 4 years non-parole in respect of the second count). A sentence of 8 years’ imprisonment with a non-parole period of 5 years had been imposed on a co-offender. Constrained by “the application of the principle of double jeopardy” as it was a Crown appeal, Howie J at [66] indicated that the “very least” total sentence which should have been imposed on the respondent was 12 years’ imprisonment with a non-parole period of 9 years. His Honour indicated that, “[h]ad [he] been the sentencing judge, [he] would have imposed a greater sentence.” However, the Court dismissed the Crown appeal due to the failure of the Crown to also appeal against the sentence imposed on the co-offender, and the disparity in sentences which would arise as a result (see the judgment of Howie J from [67]).

105. [270]

     All of the above cases concerned multiple counts. I have found the following two decisions for single counts of manslaughter to be helpful as well.

106. [271]

     In Byrne v R; Cahill v R [2021] NSWCCA 185, this Court considered an appeal against a sentence imposed for manslaughter caused by two offenders. The two offenders were involved in a street race in Wagga Wagga whilst on a morning tea break at TAFE. The speed limit was 50km/h and the two men travelled at speeds up to 143 and 130km/h, hitting another car the passenger of which died instantly. Both appealed from their sentence of 10 years and 6 months’ imprisonment, with a non-parole period of 7 years. Although the objective seriousness of the matter was held to be in the mid-range of seriousness by the sentencing judge, this Court considered it to be a most serious example of its kind calling for significant general deterrence. The sentence was considered by this Court to be high but not manifestly excessive.

107. [272]

     In Director of Public Prosecutions v Abdulrahman [2021] NSWCCA 114, the respondent, whilst disqualified from driving and having been afforded the leniency of an intensive correction order for driving under the influence of drugs, drove a motor vehicle through a red light, without stopping, near a busy school, with a level of methylamphetamine in his blood well within the “reported toxic to potentially fatal range”. Two 12-year-old boys were crossing the road. One was killed instantly whilst the other looked on. After observing his body, the respondent failed to render any assistance to the dying child and instead stood by smoking a cigarette and speaking to family members on his mobile telephone. He also deleted texts on his mobile telephone and concocted a lie to tell police as to the cause of the accident. He had a criminal history, a poor driving history and little in the way of mitigation beyond his guilty plea. He was on medication for post-traumatic stress disorder as a result of a shooting some years earlier. He was also dealt with for driving whilst disqualified. Offences of possession of both a prohibited drug and a restricted substance were taken into account on a Form 1. The Crown appeal was successful. The aggregate sentence of 6 years and 10 months with an aggregate non-parole period of 4 years and 6 months was increased to one of 10 years and 2 months’ imprisonment with an aggregate non-parole period of 6 years and 8 months.

108. [273]

     The sentencing judge referred to the decision of Crowley in his reasons. I have found that decision to be of assistance as well.

109. [274]

     It is to be noted that in Abdulrahman this Court relied upon other decisions to arrive at a conclusion that the sentence was manifestly inadequate. The three cases of relevance were Smith, Spark, and Winter, all of which I have referred to above. In that context, Beech-Jones J (as his Honour then was) (with whom Garling J and I agreed) observed at [58]:

110. [275]

     Although the Crown submitted in Chandler (No. 2) that it was a “worst case”, Johnson J did not find it to be. I have been unable to find any vehicular manslaughter cases in this category. An example of manslaughter (as opposed to vehicular manslaughter) held to be a worst case is Clare v R [2008] NSWCCA 30. The offender had befriended the vulnerable mother of a six-year-old girl and a three-year-old boy and persuaded her that he could mind her children for her. He then sexually assaulted both of them. When he anally penetrated the three-year-old boy the pain of the penetration caused the child to vomit, and he choked and died. The dangerous and unlawful act was having anal intercourse with the child. The offender was convicted after a trial. The sentencing judge was satisfied that it was a worst case and imposed the maximum penalty for the manslaughter (25 years’ imprisonment). He was also sentenced in relation to the sexual assault of the deceased child and was already serving a sentence for sexually assaulting the deceased’s six-year-old sister by the time of his appeal.

111. [276]

     On appeal to this Court the non-parole period for the manslaughter offence was reduced to 15 years and 9 months’ imprisonment but the head sentence of 25 years remained. This Court was satisfied that the sexual abuse of a three-year-old child for sexual gratification leading to his death was a worst case of manslaughter. The Court’s attention was drawn to other cases of manslaughter concerning children as well as the Judicial Commission statistics for manslaughter between April 2000 and March 2007. They showed that Mr Clare was the only person to receive the maximum penalty for manslaughter in that period and that the next highest non-parole period for manslaughter was 12 years’ imprisonment.

112. [277]

     As part of my consideration of whether the indicative sentences set by the sentencing judge are too high, I have also had regard to data produced by the Judicial Information Research System (“JIRS”) on manslaughter sentencing in NSW. One set of data shows the length of head sentences imposed on an individual offender for manslaughter (both indicative and effective sentences, depending on the number of counts on which an offender was sentenced) in NSW between 24 September 2018 and 31 March 2021.

113. [278]

     When the data is restricted to cases where the offender had no prior criminal record (like the present applicant) there were only 17 cases in this category, with head sentences ranging between 6 and 12 years. Within this group, the highest sentence for manslaughter was Bentley v R [2021] NSWCCA 18 being 12 years (indicative). This case involved a violent assault on the deceased by a group of offenders who also stood to be sentenced for the supply of a commercial quantity of methamphetamine. The case of R v Cahill; R v Byrne which was before the sentencing judge and is discussed above at [271], was also in the highest band. The sentence imposed was 10 years and 6 months (an appeal was dismissed: Byrne v R; Cahill v R [2021] NSWCCA 185).

114. [279]

     When the analysis is extended to all offenders (those both with and without a prior criminal history) the sample size increases to 70 cases which is a more helpful distribution. The fact that the applicant does not have a prior criminal record makes him statistically unusual for an offender sentenced for manslaughter.

115. [280]

     Of the 70 cases, the range of sentences for manslaughter is shown to be between 2 years and “>20 years”. Of those cases, 66 of them fall between 5 years and 14 years. The highest head sentences imposed for one count of manslaughter is 21 years and 7 months. That is the case of R v Camilleri [2021] NSWSC 221 (“Camilleri”).

116. [281]

     In Camilerri, Wilson J at [1] described the offending as “one of the most serious instances of manslaughter it is possible for any imagination to conjure”. A daughter stabbed her mother to death in a frenzy decapitating her. On a trial for murder, she was found guilty by a jury of manslaughter on the basis of a partial defence of substantial impairment. At [106]-[107], Wilson J assessed the offender’s prospects of rehabilitation as “very limited” and stated that “the possibility of a violent outburst … looms large” such that “[t]he protection of the community must be a significant consideration”. A discount of 10% was applied to the sentence to account for the offender’s plea of guilty to manslaughter prior to trial (meaning that starting point for the sentence was 24 years).

117. [282]

     After this case, the next highest head sentences for manslaughter during this period are 12 years and 7 months (Magro v R [2020] NSWCCA 25; applying a 20% discount to a starting point of 15 years and 9 months – a case involving firearms and excessive self-defence) and 13 years with non-parole period of 8 years and 6 months (Tabbah v R [2019] NSWCCA 324 – a firearms death in the context of a home invasion).

118. [283]

     Although it is to be accepted that these figures are for one count of manslaughter, they are relevant to the assessment of the indicative sentences in this case which were 19 years on each count of manslaughter prior to the 25% discount which reduced them to 14 years and 3 months.

119. [284]

     The two highest sentences imposed for vehicular manslaughter during the 2018-2021 period were in Lees (12 years) and Crowley (11 years, indicative). Lees, discussed above, was a case where the offender had killed her de facto partner after driving into him with her car. The sentencing hearing proceeded on the basis that the offence was manslaughter by unlawful and dangerous act and the judge imposed a sentence of 16 years’ imprisonment, with a non-parole period of 12 years. This Court held the sentence to be manifestly excessive and reduced it to a head sentence of 12 years with a non-parole period of 9 years. In Crowley, the Court dismissed an appeal brought by the offender against an aggregate sentence of 14 years and 3 months’ imprisonment (non-parole period 10 years) with an indicative sentence on the manslaughter count of 11 years. In Crowley, the offender had driven his vehicle in a dangerous manner on the incorrect side of the road for a substantial period of time, leading to a collision in which one person was killed and five people were injured, three seriously so. As stated above, the sentencing judge in the applicant’s case specifically referred to Crowley in his reasons.

120. [285]

     I have also had regard to the equivalent data from January 2008 to 23 September 2018. Again, by limiting the data to cases where the offender has no prior criminal record, the range of sentences is between 3 and 16 years for a sample of 72 cases. However, only one case falls above 12 years. This is the case of R v BW & SW (No 3) [2009] NSWSC 1043 where the father of the deceased (his 7-year-old daughter) was sentenced to 16 years’ imprisonment (non-parole period 12 years) for manslaughter by gross criminal negligence, being the protracted starvation and neglect of his daughter.

121. [286]

     By removing the limitation of no prior record, the sample size increases to 263 cases with sentencing ranging from 3 to 20 years. Of those, 242 cases fall within the range of 4 to 14 years. The most serious case is Chandler (No. 2) discussed above at [200]-[202] in which the sentencing judge sentenced the offender on the basis that he knew there was an appreciable risk of serious injury when he drove his vehicle through a fence on private property to avoid police.

122. [287]

     I repeat the observations I have made above to the effect that although statistics are only a blunt tool, they can be helpful when the decisions behind the statistics are identified. Even accounting for the limitation of the statistics I make the following observations following my examination of the JIRS data.

123. [288]

     For the period from 24 September 2018 until 31 March 2021, other than the extreme case of Camilerri, the applicant’s indicative sentences of 14 years and 3 months’ imprisonment set by the sentencing judge in this case in respect of each manslaughter count is higher than any manslaughter sentence recorded. In respect of the period from January 2008 to the present, the applicant’s indicative sentences are the second highest for vehicular manslaughter after Chandler (No. 2). Finally, the applicant’s indicative sentences fall at the very high end of the distribution of sentences for the two periods of time I examined.

124. [289]

     The applicant contends that the aggregate sentence imposed on him is manifestly excessive on the basis that the indicative sentences of 14 years and 3 months were too high and that the extent of accumulation was too high. The first question is whether the indicative sentences are so high in this matter as to suggest error.

125. [290]

     It is to be accepted that there is no other case in NSW in which this Court has considered a sentence imposed for four manslaughter offences. That means that there is no other aggregate sentence for four deaths for the Court to consider. But that does not mean that there have been no other cases where the objective seriousness of the driving has been as gravely serious as this one, as the cases referred to above establish. It seems to me that driving at speed in a built-up area to escape police whilst under the influence of illicit drugs or conducting a street race with two other cars is similarly serious conduct. I have found the other decisions to be of assistance with respect to assessing whether the indicative sentences imposed in this matter are so high as to suggest error in the aggregate sentence.

126. [291]

     The applicant’s criminality was found to fall near to the high end of the range. He was a man of prior good character, had genuine remorse, little risk of re-offending and had suffered the long-term impact of ADHD. His Honour accepted that the sentence did not need to reflect specific deterrence, rehabilitation or the protection of the community. In making his finding of objective seriousness the primary judge had regard to the particular harm to the community in this matter. That harm arose from the fact of the multiple deaths of children from the one extended family. The number of people killed is relevant to the aggregate sentence imposed rather than to each indicative sentence. To approach the sentencing exercise on the basis that each indicative sentence should reflect the number of deaths would breach the principle in R v Di Simoni (1981) 147 CLR 383; [1981] HCA 31.

127. [292]

     The only offender to have ever received a sentence close to this applicant’s starting point of 19 years for each count of manslaughter was the offender in Chandler (No. 2) where it was found that he knew that there was an appreciable risk of serious injury to another person. That is a state of knowledge so close to that of murder by reckless indifference to human life, realising that the act would probably cause the death of a person, as to put it in a completely different category to the applicant’s case in terms of objective seriousness.

128. [293]

     Although it is difficult to compare cases, apart from the number of deaths, it seems to me that the applicant’s conduct is broadly comparable to that in Moananu. The distinguishing feature was that Mr Moananu had a deprived childhood.

129. [294]

     Having regard to the relevant sentencing principles, the objective and subjective factors, the maximum penalty, the other cases and JIRS statistics, I am satisfied that the 19 years starting point is so high as to suggest error in the aggregate sentence. It does not necessarily follow that the aggregate sentence is too high. The real question raised by this appeal is how the fact of the multiple deaths is to be punished in circumstances where the same act in driving caused four deaths. The ultimate question is whether the aggregate sentence is manifestly excessive. This requires a consideration of the application of the totality principle.

130. [295]

     Although his Honour summarised the submissions on behalf of both the Crown and Mr Davidson as to the application of the totality principle in some detail, including the applicable principles, his Honour made no finding as to how he would apply those principles in this case beyond observing the following as part of his assessment of the objective seriousness of the offences:

131. [296]

     It is a well established principle of sentencing that, when sentencing for multiple criminal acts, the judge is not to simply add all of the sentences together. Questions of accumulation and concurrence will arise in each case. It was put this way by the High Court (Wilson, Deane, Dawson, Toohey and Gaudron JJ) in Mill v The Queen (1988) 166 CLR 59 at 63; [1988] HCA 70:

132. [297]

     Ten years later, in Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57, the same principle was expressed this way by McHugh, Hayne and Callinan J at [45]:

133. [298]

     This Court considered the totality principle in MAK & MSK in the context of offenders who had committed multiple sexual assaults in company on more than one victim. It was in that context that the application of the totality principle came to be considered. Adamson J has extracted [17] and [18] of the decision of Spigelman CJ, Whealy and Howie JJ above at [158]. The observations by their Honours at [15]-[16] are also relevant:

134. [299]

     As Howie J observed in Cahyadi v Regina [2007] NSWCCA 1; 168 A Crim R 41 at [27], when discussing sentencing for multiple offences arising out of the one episode of criminality (but not one act):

135. [300]

     In Regina v Janceski [2005] NSWCCA 288, this Court considered a Crown appeal against the inadequacy of a sentence for two vehicular manslaughters in which the sentencing judge had imposed wholly concurrent sentences for both manslaughter counts. One of the complaints made concerned the application of the totality principle. In that context, Hunt AJA, with whom Spigelman CJ and Howie J agreed, observed at [21] that there are two categories in which problems with concurrency will arise. The first is when the offender is being sentenced for discrete offences committed on different occasions and the second category is where the one incident or enterprise gives rise to different charges, usually where there is more than one victim. His Honour went on to note that the second category has at least two further sub-categories. The first is where an offender does separate acts, such as repeatedly firing a gun, which injures a number of different persons as a result of a different action taken by the offender in each instance. The other sub-category includes the present case where the one action by the offender causes a number of people to be injured and where separate charges are laid in relation to each victim. His Honour went on to state at [22]-[23]:

136. [301]

     I pause to note that s 21A(2) of the Sentencing Act provides that it is an aggravating factor on sentence if “the offence” involved multiple victims or a series of criminal acts. That is not this case. Each separate offence referred to a separate victim.

137. [302]

     The applicant contends that error is disclosed in the application of the totality principle in this matter resulting in a “crushing” sentence. Reliance was placed on the decision in Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26 (“Postiglione”) and other more recent cases in Western Australia, Tasmania and South Australia to contend that the need to ensure a sentence is not “crushing” is an aspect of the totality principle. In response the Crown noted the decision in ZA v R [2017] NSWCCA 132 to the contrary.

138. [303]

     In Postiglione, the High Court considered how the totality principle and the parity principle can be applied harmoniously. In that context, Dawson and Gaudron JJ observed this at 304:

139. [304]

     McHugh J observed something similar at 307-8 where he said (footnotes partially omitted):

140. [305]

     At 313, McHugh J continued, observing that the sentencing judge, no doubt, justified the disparity in that case to avoid a “crushing” sentence on one of the co-offenders.

141. [306]

     Kirby J discussed the totality and parity principles in the following terms at 340-1 (footnotes partially omitted):

142. [307]

     Kirby J then described that the sentencing judge must first reach an appropriate sentence by having regard to the maximum penalty and the objective and subjective features of the offending. His Honour then observed at 341:

143. [308]

     Finally, his Honour said this at 342:

144. [309]

     In MAK & MSK at [15] (extracted above at [298], this Court accepted that, on the one hand, each year in custody weighs heavier on a prisoner whereas on the other hand, as this Court observed in R v Knight [2005] NSWCCA 253; 155 A Crim R 252 (“Knight”) at [112], it is important to avoid the impression that a discount for multiple offending is being given in such cases. It is always a question of proportionality.

145. [310]

     Since MAK & MSK, the notion of a “crushing” sentence has been accepted by this Court in the context of the application of the totality principle in some cases: see Jodeh v R [2011] NSWCCA 193 at [62]; Chaouk v R [2017] NSWCCA 295 at [62]-[63] and McLaren v R [2021] NSWCCA 12 by way of illustration. But in those cases, the word “crushing” was used to describe a sentence that was held to be manifestly excessive. In other cases, the notion of a “crushing” sentence has been recognised as but one factor which may determine whether a sentence is manifestly excessive. In Atai v R [2020] NSWCCA 302 at [88], (Bathurst CJ, with whom Price and I agreed) observed:

146. [311]

     In GS v R [2016] NSWCCA 266, Gleeson JA (with whom Fagan and I agreed) observed the following in relation to the description of a sentence as “crushing” at [51]:

147. [312]

     Similar observations were made in Sivell v R [2019] NSWCCA 77 by Beech-Jones J (as his Honour then was) (with whom McCallum JA and Hoeben CJ at CL agreed) who observed the following at [122]:

148. [313]

     In R v Hraichie (No 3) [2019] NSWSC 973 at [350], Johnson J emphasised that the idea of a “crushing” sentence pertains largely to the offender’s subjective perception which should not override other considerations:

149. [314]

     This Court has approached the concept of a “crushing” sentence on the basis that it forms part of the assessment of whether a sentence is manifestly excessive. There has been no clear acceptance in this Court that Postiglione is authority for the proposition that there is a second limb of the totality principle which requires a court to ensure that a sentence is not “crushing”. It is to be noted that the decision in Pearce post-dates the decision in Postiglione and makes no reference to any such second limb of the totality principle.

150. [315]

     In ZA v R [2017] NSWCCA 132 (“ZA”) Johnson and Fullerton JJ (Payne JA agreeing) observed the following at [71]-[73]:

151. [316]

     Their Honours went on at [78] to observe, “[t]o attempt to erect, as the applicant seeks to do, a second limb of the totality principle which concentrates on the offender’s subjective circumstances to determine whether the total sentence is ‘crushing’, is not supported by authority” before citing the decisions in Jarvis v The Queen (1993) 20 WAR 201, R v E (2005) 93 SASR 20; [2005] SASC 332, Azzopardi v R (2011) 35 VR 43; [2011] VSCA 372 (“Azzopardi”) and R v Zaydan [2004] VSCA 245.

152. [317]

     The approach in ZA was referred to with approval in Hall v R [2021] NSWCCA 220 at [87] (R A Hulme J, with whom Leeming JA and Campbell J agreed).

153. [318]

     Recently, in Australian Building and Construction Commissioner v Pattinson [2022] HCA 13, the High Court considered the scope of the power conferred on the Federal Court of Australia by s 546 of the Fair Work Act 2009 (Cth) to impose civil pecuniary penalties in respect of contraventions of the civil remedy provisions of that Act. The majority (Kiefel CJ, Gageler, Keane, Gordon, Steward and Gleeson JJ) made no reference to the totality principle in considering that question, but Edelman J, in dissent, did. His Honour noted three instances where the law concerning civil penalties “replicates the approach of the criminal law in ensuring that a penalty does not exceed what the law requires that an offender deserves” (at [93]). The first of those was the totality principle which was described in these terms at [94] (I have inserted the relevant authorities in lieu of the first two footnotes for ease of reference):

154. [319]

     Although that case concerned civil pecuniary penalties, Edelman J accepted, citing Postiglione, that a second aspect of the totality principle in criminal law is that the penalty should not be “crushing” in light of the offender's record and prospects. But his Honour said nothing in that judgment that suggests any departure from the principle of proportionality: a sentence must still be proportionate to the gravity of the crime. A person sentenced to a lengthy term of imprisonment may well consider the sentence to be “crushing” but in many cases a long sentence may be the proportionate response to the circumstances of that case.

155. [320]

     So, how is the question of whether error is established in the application of the totality principle to be assessed? Although there are numerous decisions of this Court in which the totality principle has been considered, I have found the observations of Redlich JA in Azzopardi to be of particular assistance on the question of how to assess whether there has been inadequate concurrence having regard to the need for proportionality. His Honour also considered the submission, as in the present case, that the sentence was “crushing”. From [56] his Honour attempts to answer to the question: “When is a sentence proportionate to or a just and appropriate measure of the offender’s overall criminality”. His Honour observed the following at [58]:

156. [321]

     At [62], his Honour spoke of the need to adjust the sentence to comply with the totality principle and then observed at [65]:

157. [322]

     Finally, at [69] his Honour observed the following in response to the complaint that the sentence was “crushing”:

158. [323]

     Despite all of the statements of principle to which I have already referred, there has been little judicial consideration of how to determine when there has been insufficient regard to the totality principle in cases of manslaughter by criminal negligence where one negligent act has caused multiple deaths. The applicant relied on the decision of the South Australian Court of Appeal in Bubner v R [2022] SASCA 27 (“Bubner”) to the effect that in such cases most of the purposes of punishment will be reflected in the sentence on the first count. Adamson J has extracted [59] of Bubner above at [133]. The applicant also cited R v Wooldridge (2015) 123 SASR 422; [2015] SASCFC 125 at [80] in support of the proposition at [59] of Bubner.

159. [324]

     Wooldridge concerned an appeal from a sentence for culpable driving where, like this matter, four deaths occurred, as well as an instance of serious harm. The case is very different factually and also by virtue of the charges the appellant faced: he was not charged with manslaughter but with the South Australian equivalent of s 52A of the Crimes Act, albeit with a maximum penalty of 15 years’ imprisonment. I do not rely on this decision as a “comparable” case; it is far from it. But it is the only decision I have found which has considered the application of the totality principle when one criminal act causes four deaths and/or serious injury.

160. [325]

     The dangerous driving in Woolridge was one of inattentiveness and the driver had led a “blameless” life for 65 years. In that context, the Court (Gray ACJ, Peek and Nicholson JJ) observed the following at [25]:

161. [326]

     Their Honours went on to observe the following at [80]:

162. [327]

     The sentencing principle derived from this decision is that the application of the totality principle where the one act of criminal negligence has caused multiple deaths requires a consideration of whether all of the relevant purposes of sentencing come into play when setting the degree of accumulation between sentences, or whether most of the purposes of sentencing will be met by the sentence imposed on the first count favouring greater concurrence.

163. [328]

     I am unaware of any decision of this Court in which such a sentencing principle has been held to be applicable in the context of multiple deaths caused by criminal negligence. Although there is some force in Mr Odgers SC’s submission that it is applicable in this case, I would expressly reserve my position on this issue.

Ground 2: Conclusion

1. [329]

   As stated above at [294], I am satisfied that a starting point of 19 years imprisonment’ for each of the four separate counts of manslaughter is too high in the circumstances of this case. The question is whether that finding leads to the conclusion that, after the application of the totality principle, the aggregate sentence is manifestly excessive.

2. [330]

   In any case concerning multiple victims the proper application of the totality principle will invariably mean that an offender will serve less time in custody for the criminality pertaining to each count and each victim than would be the case had there only been one victim and/or one charge. This consequence of the proper application of the totality principle may well leave victims of crime feeling that the offender has received little additional punishment in relation to the offences committed on them. In a factual scenario that arises more commonly in this Court, a paedophile who sexually assaults numerous children on numerous occasions will, after the application of the totality principle, usually receive a relatively short cumulative increment for each additional sexual assault. This is the case even though, unlike the present case, the offender has committed numerous discrete acts in sexually assaulting each child. By further way of analogy, if a driver acting in a criminally negligent manner, such as this applicant, collided with a school bus and killed 20 children, the application of the totality principle may lead to a result in which there is a relatively short portion of the total sentence attributable to each additional death. That is not to say that the harm to the victims and the community as a result of those deaths was any the less; clearly the unspeakable loss for the families of each child would be the same. But the fact that the proportion of the sentence which could be seen to reflect each death was lower than it would have been had there only been one death is a consequence of the proper application of the totality principle.

3. [331]

   I have referred above at [309] to the note of caution expressed by Johnson J (Mason P and Barr J agreeing) in Knight that, when applying the totality principle, it is important to avoid the impression that a discount for multiple offending is being given. That case concerned an offender who was sentenced in relation to over 30 separate property offences. In that context, his Honour observed the following at [112]:

4. [332]

   This passage in Knight was cited in MAK & MSK at [18], a passage which is commonly cited in cases concerning the application of the totality principle. But the decision in Regina v Wheeler [2000] NSWCCA 34 (“Wheeler”) from which the quote in Knight is taken is not so commonly cited. In Wheeler, Sully J (with whom Carruthers J agreed) was considering an appeal by an offender charged with multiple serious armed robberies committed whilst on conditional liberty with a previous criminal record. In that context, his Honour referred to the need to apply the totality principle (at [35]) and then observed the following at 36-37:

5. [333]

   The applicant’s driving was a very serious example of criminally negligent conduct. Although he did not intend to cause death or grievous bodily harm to anyone, he is liable for manslaughter because his manner of driving fell so short of the standard of care which a reasonable person would have exercised, and which involved such a high risk that death or grievous bodily harm would follow that the manner of driving merited criminal punishment. His one act of criminally negligent driving had catastrophic consequences. When applying the totality principle in this matter, it was important to have regard to all of those consequences and the life lost in each case when arriving at an aggregate sentence; but it seems to me that it is also important to consider that it was the one criminal act which caused so much harm. Unlike the offender being considered by Sully J in Wheeler, the applicant did not “embark upon a deliberate series of discrete offences”.

6. [334]

   The sentencing judge was faced with a difficult task in sentencing the applicant for the highest number of manslaughter charges arising from the one act of criminal negligence in NSW to date. His Honour’s sentencing reasons addressed the relevant factors on sentencing in a careful and thoughtful way. No patent error is disclosed in the sentence. Despite this, for the reasons I have set out in some detail above, I am satisfied that the aggregate sentence imposed is “unreasonable or plainly unjust”. I would uphold this ground.

Re-sentence

1. [335]

   As Mr Abdullah acknowledged in his letter to the court, no sentence imposed will ever be enough for the loss the families of the deceased have suffered. But this Court is required to reconcile their grief with the application of the relevant sentencing principles and, by way of instinctive synthesis, arrive at the appropriate aggregate sentence to punish the applicant.

2. [336]

   The applicant did not rely upon any additional material in the event that this Court came to re-sentence him.

3. [337]

   I would adopt all of the findings made by the sentencing judge with regard to the objective seriousness, remorse, prospects of rehabilitation, the early plea, and the applicant’s prior good character. As the sentencing judge noted, the purposes of specific deterrence, protection of the community and rehabilitation are of less significance in this matter.

4. [338]

   Although I would not uphold ground 1, the applicant’s ADHD was nonetheless relevant as part of his subjective case. As Dr Furst explained, ADHD is a disorder that interferes with functioning and to be diagnosed with it at such a young age is to have chronic and long-lasting symptoms.

5. [339]

   Due to the publicity surrounding this matter and the risk of being killed by other inmates in mainstream custody, the applicant was placed in segregation for the first 11 months and at the time of sentence had been classified as a special management and protection inmate (“SMAP”). Such a classification is a form of protective custody which allows for limited contact with other inmates. A letter from the governor of the correctional centre where he was incarcerated at the time of sentence, dated 2 February 2021, confirmed that the applicant was physically separated from other inmates given his assessed high risk of assault due to his offence but was able to converse with a limited number of inmates through a physical barrier. I have had regard to the fact that his incarceration has been and will continue will be more onerous due to this fact as well as his ADHD and the impact of the COVID-19 pandemic.

6. [340]

   No finding of “special circumstances” within the meaning of s 44(2) of the Sentencing Act was made by the sentencing judge given the length of the sentence imposed. I would impose a lesser sentence which raises the question of whether that question should be revisited. Most offenders in the lower courts (including the District Court) do have their non-parole periods reduced following a finding of special circumstances: see Brennan v R [2018] NSWCCA 22 at [86]. Despite this, I am satisfied that the sentence I would impose is of sufficient length to provide for an adequate period on parole.

7. [341]

   For the reasons I have already provided, I would apply the totality principle in a manner which would allow for some accumulation for each subsequent offence. I am satisfied that the sentence I would impose acknowledges the dignity of each child who was killed by the applicant’s conduct.

8. [342]

   This appeal has focussed on the appropriate sentence for the four manslaughter sentences. I am not persuaded that the indicative sentence for the count of aggravated dangerous driving occasioning grievous bodily harm to Charbel Kassas was excessive, but in re-sentencing the applicant I would fix a slightly lower indicative sentence in the exercise of my sentencing discretion. The same applies to the indicative sentences for the two summary offences of causing bodily harm by misconduct in charge of a motor vehicle.

9. [343]

   I have applied the 25% discount for the utilitarian value of the plea of guilty to the indicative sentences. For the manslaughter offences the starting point for the indicative sentences before the application of the 25% discount for the early pleas of guilty was 14 years’ imprisonment. For the remaining three offences there has been some rounding down to avoid figures measured by years, months and days after the application of the discount. The indicative sentences are as follows:

   1. (1)

      Manslaughter (Angelina Abdallah): 10 years and 6 months

   2. (2)

      Manslaughter (Sienna Abdallah): 10 years and 6 months

   3. (3)

      Manslaughter (Antony Abdallah): 10 years and 6 months

   4. (4)

      Manslaughter (Veronique Sakr): 10 years and 6 months

   5. (5)

      Aggravated dangerous driving occasioning grievous bodily harm (Charbel Kassas): 5 years and 3 months

   6. (6)

      Cause bodily harm by misconduct in charge of a motor vehicle to Mabelle Kassas: 1 year and 1 month

   7. (7)

      Cause bodily harm by misconduct in charge of a motor vehicle to Leanna Abdallah: 1 year and 1 month

ORDERS

1. [344]

   I would propose the following orders:

   1. (1)

      Grant leave to appeal.

   2. (2)

      Uphold the appeal.

   3. (3)

      Quash the sentence imposed on the applicant in the District Court on 9 April 2021 and, in lieu thereof, sentence the applicant to an aggregate sentence of 20 years’ imprisonment to commence on 1 February 2020 and expire on 31 January 2040. The aggregate non-parole period is 15 years’ imprisonment to commence on 1 February 2020 and expire on 31 January 2035.

   4. (4)

      The offence of manslaughter is a "serious violence offence" as defined in s 5A of the Crimes (High Risk Offenders) Act 2006 (NSW). Accordingly, I am obliged by s 25C of that Act to advise the applicant of the existence of that legislation and of its application to the offences he has committed.