Crowley v R

1. [1]

   BASTEN JA: For the reasons given by Adamson J, I agree that the applicant should have leave to appeal against the sentence imposed on him in the District Court on 28 October 2019, but that the appeal should be dismissed.

2. [2]

   Despite the seeming complexity of the grounds of appeal, the challenge to the sentence turned on the proposition that the judge had failed to give proper consideration to evidence that the furious driving on the part of the applicant resulted from a mental condition variously described as an anxiety disorder, a panic attack or a blackout. The applicant accepted that he could not have driven as he did had he in fact blacked out. That possibility may be discounted. However, his psychiatrist, Dr Nielssen, accepted that he had “an anxiety disorder, with features of both panic disorder and obsessive compulsive disorder”, which found occasional expression. The question for the sentencing judge, however, was whether such intermittent events were shown to have any causal connection with the conduct leading to the fatal accident. Dr Nielssen stated:

3. [3]

   That was the high point of the evidence in favour of such a causal link. There was no science-based evidence of these conditions typically leading to such conduct, nor is such a causal link something which could be inferred without some scientific support.

4. [4]

   The sentencing judge formed a similar view, stating that it seems to be “completely incongruous that a panic attack could persist for the whole of the course of the driving”. He further stated that it seemed to be “inherently implausible that a person with anxiety, even in a panic state, would drive for this distance at grossly excessive speeds against the traffic, against road signs to withdraw from some perceived confrontation.” Absent science-based evidence to the contrary, that view was entirely reasonable. The judge continued, “there is no evidence that the panic condition precludes a driver’s control of the vehicle and clearly there are many explanations which are much more likely for his course of driving.” The judge concluded:

5. [5]

   The aggregate sentence imposed was undoubtedly a severe one. However, the judge was entitled to find that the conduct demonstrated a flagrant disregard for the lives of other road users and the consequences were, as Adamson J notes, nigh on inevitable. No basis has been shown for this Court to intervene.

6. [6]

   HARRISON J: I agree with Adamson J.

7. [7]

   ADAMSON J: Robbie Crowley (the applicant) seeks leave to appeal against the aggregate sentence imposed on him by Frearson SC ADCJ on 28 October 2019 following his plea of guilty to four offences: the manslaughter of Blake Feeney and three offences of aggravated dangerous driving causing grievous bodily harm to Mark Johan, Matthew Johan and Grace Hiett respectively. There were two further charges on a Form 1, cause bodily harm by misconduct in charge of a motor vehicle to Teresa Strach and Penata Tevita, which the applicant asked to be taken into account on the manslaughter count.

8. [8]

   His Honour imposed an aggregate sentence of 14 years and 3 months’ imprisonment with a 10 year non-parole period. The sentence commenced on 30 March 2018. The applicant will be eligible for release after the expiry of the non-parole period on 29 March 2028.

9. [9]

   The offences, the maximum penalties and the indicative sentences are set out in the following table:

The grounds of appeal

1. [10]

   The grounds in respect of which leave is sought are set out in the amended application which was filed on 28 July 2020 as follows:

2. [11]

   As circumstance 7, relied on in support of ground 1, was not added until the hearing of the appeal, it was not addressed in the written submissions, but was dealt with orally.

3. [12]

   Because grounds 1-3 pertain to the conduct of the proceedings on sentence it is necessary to address in some detail what occurred at the sentence hearing. It is also necessary to set out the facts and evidence for the purposes of addressing ground 4.

The sentence proceedings

1. [13]

   The sentence proceedings took place on 25 October 2019. Both parties prepared, and relied on, written submissions.

2. [14]

   Of present relevance, the Crown submitted in writing that the applicant’s moral culpability was high as he had “driven the vehicle in a dangerous manner at high speeds and on the incorrect side of the road for a substantial period of time.” It also submitted that the applicant’s decision to drive while intoxicated constituted “an abandonment of responsibility.” The Crown noted that it was difficult to assess the applicant’s state of mind at the time of the offences as he said he had no recollection of the events and the offending.

3. [15]

   The Crown attached a map to its written submissions which set out the path of the applicant’s vehicle from the time he left his partner’s place until the time of the fatal collision. The map (in accordance with the statement of facts set out below) showed the vehicle heading south-east along Raby Road, turning left into Spitfire Road, doubling back along Spitfire Road, turning left into Raby Road and then travelling the wrong way down the one-way off-ramp coming from Campbelltown Road, travelling approximately 2kms along Campbelltown Road, in a southerly direction down the northbound bicycle lane and through the intersection of Rose Payten Drive towards Collaroy Road.

4. [16]

   In the written submission relied on by the applicant, he accepted that the evidence revealed not only a high level of moral culpability but also an abandonment of responsibility. As to his state of mind, he indicated that he would rely on the report of Dr Marcelo Rodriguez, psychologist, dated 12 October 2019, the report of Dr Olaf Nielssen, psychiatrist, dated 3 October 2019 and the Justice Health records.

5. [17]

   At the hearing on 25 October 2019 the Crown informed the sentencing judge that, on 30 March 2018, the applicant had been arrested and charged with the offences for which he stood to be sentenced as well as the offences on the Form 1. The Crown also informed his Honour that on 22 May 2019, the applicant had pleaded guilty in the Local Court, as a result of which the matter had been committed for sentence to the District Court.

6. [18]

   It was common ground that the manslaughter to which the applicant had pleaded guilty would fulfil the requirements of both unlawful and dangerous act manslaughter and gross negligence: for the elements of each and the differences, see Lane v R [2013] NSWCCA 317; (2013) 241 A Crim R 321 at [54]-[64] (Bathurst CJ, Simpson and Adamson JJ).

7. [19]

   The Crown tendered a bundle of documents on sentence, which comprised the notice of committal and court attendance notices; a copy of the Form 1; a certificate pursuant to s 166 of the Criminal Procedure Act 1986 (NSW); a document entitled, “Statement of facts” (which, although non-compliant with s 190 of the Evidence Act 1995 (NSW) was accepted by the parties to be a statement of agreed facts); the applicant’s criminal and custodial histories; and four victim impact statements.

8. [20]

   The facts relating to the circumstances of the offences were as follows:

9. [21]

   The balance of the agreed facts related to the death of Mr Feeney, who was then 17 years old and the injuries sustained by Mark Johan, Matthew Johan, Gracie Hiett, Penata Tevita and Teresa Strach.

10. [22]

    The defence tendered a bundle which comprised the following documents: a report dated 22 October 2019 from Dr Nielssen; a report dated 17 October 2019 from Dr Rodriguez; extracts from Justice Health records; an affidavit of Dianne Crowley (the applicant’s mother); medical certificates relating to Dianne Crowley; an affidavit of Renee Cubbo (the applicant’s sister); documents relating to the applicant’s (post-incarceration) bankruptcy on his own petition; extracts from the Computerised Operational Policing System (COPS) entries regarding an assault on him in 2011; and extracts from documents produced by Campbelltown Hospital relating to the 2011 assault.

11. [23]

    Also included in the bundle were references from Ashleigh Blackwell (the applicant’s partner); Sandra Sperling (the payroll manager at Sperling Enterprises, where the applicant had worked from 14 September 2010 until 3 April 2018, most recently as a receiving dock supervisor); Penny Williams (manager of Disability Macarthur, where the applicant volunteered for the five years before his incarceration); Corrinne Blackwell (the mother of the applicant’s partner); Michelle Tomkins (the applicant’s partner’s step-mother); Mark Clissold (a neighbour of the applicant); and Aidan Martin (a friend of the applicant from school). The final document in the bundle was a letter written by the applicant expressing his sorrow and regret at the consequences of his actions.

12. [24]

    Dr Nielssen, who was not required for cross-examination, identified the material with which he had been briefed, which included the applicant’s Electronically Recorded Interview of a Suspected Person (ERISP) conducted on 4 June 2018 and an affidavit from the applicant’s partner affirmed on 20 August 2019 (referred to below but not tendered at the sentence proceeding).

13. [25]

    In his report, Dr Nielssen recorded that the applicant gave the following history to him in the consultations on 30 July 2019 and 1 October 2019:

14. [26]

    Under the heading, “DOCUMENT REVIEW”, Dr Nielssen said in part:

15. [27]

    Dr Nielssen said, under the heading, “Mental State Examination”, that there were “no odd usages or odd beliefs suggesting underlying psychotic illness or brain injury affecting communication”. He also said:

16. [28]

    Under the heading, “OPINION”, Dr Nielssen said in part:

17. [29]

    Dr Nielssen diagnosed obsessive compulsive disorder. He also noted that the applicant sustained an acquired brain injury in an assault when he was 19 “which added to his anxiety symptoms”. He continued:

18. [30]

    Dr Rodriguez assessed the applicant on 8 October 2019. In his report, dated 17 October 2019, he recorded that he, too, had been provided with the affidavit of the applicant’s partner and the ERISP. Under the heading, “MENTAL HEALTH HISTORY”, Dr Rodriguez recorded:

19. [31]

    Footnote 5 in Dr Rodriguez’s report said:

20. [32]

    Ms Blackwell’s reference, dated 15 October 2019, contained the following:

21. [33]

    The applicant was called to give evidence at the sentence proceeding. His counsel asked him whether the histories he had given to the psychiatrist (Dr Nielssen) and the psychologist (Dr Rodriguez) were correct. The applicant answered in the affirmative. His Honour immediately interjected and pointed out that there was a discrepancy in the histories given. The following exchange ensued:

22. [34]

    Mr Peluso elicited from the applicant that the history he had given to Dr Nielssen about having suffered blackouts in the past was correct. Mr Peluso continued:

23. [35]

    His Honour asked the applicant to describe what happens when he has a panic attack. The applicant said that when he got really anxious he just walked away. He also said that when he is having a panic attack, he might also have a blackout. He described the situation as follows:

24. [36]

    The applicant also gave evidence that, in the course of such attacks he suffered “headaches, dizziness [and] blurry vision” and that his motor functions can “go away” and that this affected his “alertness”.

25. [37]

    In his evidence at the sentence hearing, the applicant deposed to the following events immediately prior to getting into the car to leave his partner’s residence:

26. [38]

    The applicant admitted to having drunk to excess but said that he could not recall how much he had drunk. He told the Court that when he left in his car he was intending to drive home.

27. [39]

    In cross-examination of the applicant, the Crown put to him what he had said in his ERISP in the following exchanges:

28. [40]

    Although the ERISP was not separately marked as an exhibit, it was treated as if it had been added to Exhibit A, the Crown bundle. The Crown did not cross-examine the applicant further on the ERISP.

29. [41]

    The understanding of the applicant’s counsel that the ERISP had been tendered is evident from the following exchange at the conclusion of the hearing on 25 October 2019, where Mr Peluso referred the sentencing judge to parts of the interview which had not been the subject of cross-examination, as follows:

30. [42]

    In the course of the Crown’s oral submissions, the sentencing judge raised Dr Nielssen’s explanation (in the passage commencing “From the information that is available” extracted above) that the applicant was having a panic attack when he decided to drive that evening. His Honour, in an exchange with counsel, contrasted this with what the applicant said in his ERISP (that he had left to see a “mate”). His Honour put to the parties that, in these circumstances, the applicant’s departure would not appear to have been connected with any panic attack. The Crown, in effect, submitted that the Court should prefer the version the applicant had given to police since that was closer to the time of the incident.

31. [43]

    In addition to this matter, his Honour invited Mr Peluso to address him on the apparently inconsistent history which the applicant is recorded as having given to Dr Rodriguez. I shall reproduce the entire exchange which followed because it is at the heart of grounds 1, 2 and 3:

The sentencing judgment

1. [44]

   His Honour accurately stated the maximum penalties for the offences for which the applicant stood to be sentenced. His Honour recorded that a 25% discount would apply by reason of the plea of guilty. The sentencing judge set out the circumstances of the offences by reading out the agreed facts. His Honour described the injuries sustained by the deceased and the other victims.

2. [45]

   His Honour noted that the applicant was travelling at 140km/h on Raby Road where the speed limit was 70km/h and 144km/h on Campbelltown Road in an 80km/h zone. His Honour said:

3. [46]

   His Honour noted the applicant’s antecedents. In June 2014 he was dealt with under s 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW) and was also fined for driving with mid-range PCA. His Honour found that his record disentitled him to leniency but that he was otherwise of good character.

4. [47]

   His Honour noted the victim impact statements which set out the consequences of the offences. His Honour noted the various histories given, as recorded in the ERISP, his oral evidence and the histories given to Dr Nielssen and Dr Rodriguez. The sentencing judgment continued:

5. [48]

   His Honour referred to the evidence of Dr Rodriguez and said:

6. [49]

   The sentencing judge referred to Dr Nielssen’s report and addressed the question whether the description of panic attacks was thought to be referable to the card game that was played that evening. His Honour continued:

7. [50]

   His Honour accepted that the applicant was remorseful, that his prospects of rehabilitation were good and that he was unlikely to re-offend. His Honour referred to the guideline judgment of R v Whyte (2002) 55 NSWLR 252; [2002] NSWCCA 343 (at [203]-[204] (Spigelman CJ, Mason P, Barr, Bell and McClellan JJ agreeing)) and said that he did “not see anything typical about this case” and, accordingly, that it had to be dealt with on its own facts.

Further evidence sought to be adduced on appeal

1. [51]

   Mr Game SC, who appeared with Ms Khalilizadeh on behalf of the applicant, sought leave to tender further evidence on the appeal. He read two affidavits of Chadi Irani, the solicitor with carriage of the matter, dated 27 July 2020 and 25 February 2021 respectively, and sought to tender a further report of Dr Rodriguez dated 17 June 2020, which was annexed to Mr Irani’s first affidavit. Mr Game confirmed that, because of the matters raised in the grounds, Mr Irani no longer had carriage of the matter.

2. [52]

   The Crown did not object generally to the further evidence. However, it objected to certain paragraphs in Mr Irani’s affidavit of 27 July 2020 in which he gave evidence about his expectation that counsel would seek an adjournment (in paragraph 22) and about his view about what the sentencing judge’s reaction to such an application would be (in paragraphs 23 and 24). These paragraphs are irrelevant to the issues in the hearing and are therefore inadmissible. The transcript record speaks for itself.

3. [53]

   The Crown also objected to parts of Dr Rodriguez’s further report. First, the Crown’s objected to Dr Rodriguez’s speculation about why the history was recorded as it was in the original report (under the heading “Interview with Mr Crowley” and the answer to question 2). He did not suggest erroneous recording on his part. The objection ought be upheld since it involved speculation and could not assist the Court.

4. [54]

   The Crown also objected to Dr Rodriguez’s opinion (set out in the answer to the first question and in the answers to questions 3, 4 and 5) that the applicant met the criteria for Panic Disorder and his opinion as to the causes and consequences of the disorder in the applicant. Its ground of objection was that Dr Rodriguez lacked the expertise both to make such a diagnosis and to opine as to its consequences.

5. [55]

   Mr Game contended that, if grounds 1, 2 or 3 were upheld, this Court would be obliged to remit the matter to the District Court for sentence since the applicant would not have had a fair hearing on what sentence ought be imposed on him. Mr Game said the purpose of tendering Dr Rodriguez’s second report was to demonstrate the evidence which would be adduced at the remitted hearing. Thus, the purpose of the tender in this Court was to demonstrate that, by being denied a fair hearing in the District Court, the applicant had been denied the opportunity to obtain a better result at the rehearing. In other words, this evidence was adduced to demonstrate both that the applicant had suffered practical injustice (in the sense addressed by Gleeson CJ in Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Lam (2003) 214 CLR 1; [2003] HCA 6 at [38]) and that the grant of relief in the form of a remission to the District Court would not be futile.

6. [56]

   Section 79 of the Evidence Act provides, in substance, that opinion evidence given by an expert is admissible only if it falls within the expert’s area of expertise. However, s 4 of the Evidence Act relevantly provides:

7. [57]

   If the appeal were upheld and the case remitted to the District Court, it would be a matter for the sentencing judge to determine whether a direction ought be made that the rules of evidence applied. I am not persuaded that the evidence of Dr Rodriguez as to the diagnosis and its causes and consequences with respect to the applicant ought be excluded by this Court in this context, since it would be open to a sentencing court to refrain from making a direction under s 4 and take such material into account. In these circumstances, I would allow the evidence in for the purposes of the hearing in this Court. In these circumstances, it is not necessary to address the question of the precise parameters of the relative expertise of a psychologist when compared with that of a psychiatrist: cf. R v Peisley (1990) 54 A Crim R 42 at 52 (Wood J); WW v R [2012] NSWCCA 165 at [58] (Hoeben JA, Johnson and Button JJ agreeing).

8. [58]

   In his second affidavit (affirmed 25 February 2021), Mr Irani deposed as to the following matters.

9. [59]

   On 23 July 2019 Mr Irani engaged Dr Nielssen to prepare a report for the applicant’s sentence hearing “for the purposes of assisting the court in sentencing the client and to provide an opinion as to whether there were any psychiatric or psychological mitigating and subjective factors relevant at the time of the commission of the offence for the Judge to consider.”

10. [60]

    In preparation for the sentence hearing, Mr Irani obtained an affidavit from the applicant’s partner as to her recollection of the events on the evening of the offending conduct. This affidavit, sworn 20 August 2019, was tendered in this Court by the Crown in response to the further evidence relied on by the applicant. Mr Irani deposed that this affidavit was the one that had been provided to both Dr Nielssen and Dr Rodriguez (as their reports indicate) but which had not been tendered at the sentence hearing (as her reference was tendered instead). Mr Irani did not give any explanation for the forensic choice to convert the affidavit into a reference. The obvious consequence of this choice was that Ms Blackwell could not be cross-examined on her version.

11. [61]

    Of present relevance, Ms Blackwell deposed in her affidavit as follows:

12. [62]

    Mr Irani also deposed to the following in his second affidavit. On 3 October 2019, he received a report from Dr Nielssen, which was subsequently amended, by a further version, dated 22 October 2019, which was served and tendered.

13. [63]

    On 4 October 2019, Mr Irani sent an email to Dr Rodriguez requesting a report for the sentence hearing on 25 October 2019. He listed the material attached to the affidavit, which included Dr Nielssen’s report of 3 October 2019. The letter included the following:

14. [64]

    On 8 October 2019, Mr Irani emailed a letter of instructions to Dr Rodriguez engaging him to interview the applicant and provide a report for the sentence hearing. He also attached hospital records relating to an assault on the applicant in 2011 in which he had injured his head. The documents attached to the letter included the report of Dr Nielssen dated 3 October 2019, the statement of facts and the ERISP. The letter included the following:

15. [65]

    On 9 October 2019, Mr Irani sent a further email to Dr Rodriguez instructing him to proceed “with the forensic psychologist report as requested” and attached affidavits from the applicant’s family “which outline the history, and [give] examples of the OCD, anxiety and panic attacks”. Mr Irani also noted that there was reference in the reports provided to CT scans of the applicant’s brain.

16. [66]

    Mr Irani’s evidence was that he had not appreciated the discrepancy between the instructions he had received (that the applicant had suffered panic attacks and blackouts since he was a young boy) and the history recorded in Dr Nielssen’s report (to the same effect) on the one hand and the history that Dr Rodriguez recorded in his first report (that the applicant had suffered panic attacks only since his incarceration) on the other hand. He deposed that he was first alerted to the discrepancy when the sentencing judge raised it with counsel at the sentence proceedings. At that time, he instructed counsel (Mr Peluso) to ask the applicant (who was in the witness box) about the history he had given to Dr Rodriguez. Mr Irani then communicated by text message with Dr Rodriguez, who was, at the time, in consultation with a patient.

17. [67]

    The text messages (which are annexed to Mr Irani’s first affidavit) showed that Mr Irani’s inquiries elicited the following responses from Dr Rodriguez:

18. [68]

    In the exchange, Dr Rodriguez said that, in his field, anxiety attacks were different from panic attacks.

19. [69]

    During the short adjournment in the sentence hearing on 25 October 2019, Mr Irani telephoned Dr Rodriguez and was told that he was not available that day or in the following week. Dr Rodriguez told him, “If you want me to come, you’ll need to do it the right way.”

20. [70]

    Mr Irani also confirmed in his affidavit that the Crown had not notified him of its intention to tender the ERISP at the sentence proceedings.

21. [71]

    Mr Irani contacted Dr Rodriguez and asked him to prepare a supplementary report. On 5 June 2020, Dr Rodriguez informed him that he would need to see the applicant again for that purpose. Mr Irani sent a briefing letter.

22. [72]

    Dr Rodriguez interviewed the applicant again on 11 June 2020, following which he prepared a further report dated 17 June 2020, which Mr Irani filed in this Court on 7 July 2020. Mr Irani deposed in his affidavit of 27 July 2020 that, had the sentencing judge adjourned the hearing of the sentence proceedings, he would have obtained a further report from Dr Rodriguez, based on what he contended was the correct history: namely, that the applicant had a long history of panic attacks prior to the evening of the offending conduct.

23. [73]

    In this report Dr Rodriguez revised his earlier opinion and said as follows:

The parties’ submissions

1. [74]

   Mr Game argued that the sentence proceedings had miscarried, in substance, because of the incompetence of the applicant’s legal representatives. He accepted that it was forensically necessary for the applicant to give evidence on oath at the hearing in order to prove the factual substratum to the reports and that, therefore, he would have been cross-examined by the Crown on the basis of prior inconsistent statements given in his ERISP. Further, he accepted that the discrepancies between the ERISP and the evidence could not be explored in examination in chief because they were relevant only to credibility.

2. [75]

   However, he submitted that the failure of the applicant’s legal representatives to detect what he contended was an obvious inaccuracy of the history recorded by Dr Rodriguez (that he only suffered panic attacks after being incarcerated) had resulted in his Honour forming an unduly poor view of the applicant’s reliability as a historian. Further, he contended that the applicant was deprived of the opportunity to establish that his decision to drive had been precipitated by a panic attack and have his moral culpability reduced accordingly.

3. [76]

   Mr Game was critical of the applicant’s legal representatives in several respects. He contended that they ought to have detected the inconsistency between the history recorded by Dr Rodriguez as to when the panic attacks began and dealt with it in the applicant’s evidence in chief, if it had not been corrected earlier. He also submitted that they ought to have reminded the applicant of the contents of his ERISP before he gave evidence, because it contained prior statements which were inconsistent with the histories he had given to Dr Nielssen and Dr Rodriguez. Further, he submitted that they should have made a formal adjournment application on the day of the sentence hearing.

4. [77]

   The Crown responded by submitting that the conclusion that the applicant was a poor historian was, in effect, inevitable because the version the applicant had given to police about two months after the incident was inconsistent not only with his evidence at the sentence hearing but also with the versions he had given to Dr Nielssen and to Dr Rodriguez.

5. [78]

   The Crown submitted that there was no real basis for concluding that there had been any practical injustice because the issues for the applicant at the hearing before the sentencing judge would remain if the matter were remitted. He submitted that Ms Blackwell’s affidavit (which was not used at the sentence hearing before his Honour) provided another basis on which to impugn the applicant’s credit since the version of what had precipitated the applicant’s departure in his vehicle on the evening of the offending conduct was at odds with his having had a panic attack immediately prior to getting into the vehicle.

6. [79]

   Further, the Crown submitted that, whatever discrepancies there had been between the history of panic attacks given to Dr Nielssen, and otherwise established by the evidence and the (inaccurate) history given to Dr Rodriguez, they were immaterial as his Honour was prepared to sentence the applicant on the basis that he did have a history of panic attacks and that these affected his mental health. The Crown contended that there was no evidence to support the proposition that the applicant could have driven for any distance, much less the distance he in fact drove, when in the throes of a panic attack. It submitted that any deficiency in Dr Rodriguez’s report was not replicated in Dr Nielssen’s report and that Dr Nielssen’s evidence had been accepted by his Honour. The Crown submitted that, if this Court were to remit the matter, the applicant would still be found to be an unreliable historian, based on the discrepancies between what he told police and his more recent versions. It contended that the Crown case, if the matter were remitted, would be fortified by the affidavit evidence of Ms Blackwell.

Consideration

1. [80]

   Before turning to the specific circumstances relied upon, I propose to address ground 1 generally.

2. [81]

   The issue of what the applicant told Dr Rodriguez about the onset of panic attacks took some time in the sentence hearing and was apparently regarded as an “important point” by his Honour at the time, and led to the applicant’s legal representatives foreshadowing that Dr Rodriguez ought be called to clarify the position. However, this issue was ultimately of little moment when regard is had to the reasons for sentence.

3. [82]

   In substance, the sentencing judge accepted that the applicant had a history of panic attacks, as established by other evidence, including from the applicant’s mother. His Honour was not satisfied that the applicant had actually suffered a panic attack immediately prior to his departure on the evening of the offending conduct, in part because of the description given by Ms Blackwell in her reference (which was more favourable to the applicant than the version given in her affidavit), but also because of what the applicant had told police and the fact that he had had not identified anything when police gave him the opportunity to identify any tension at the time of his departure which might have affected his mental state.

4. [83]

   Further, his Honour noted, correctly, that whether or not the offender had a history of panic attacks, Dr Rodriguez did not, in his report, associate any panic attack with his driving and the applicant did not, when being interviewed by Dr Rodriguez, assert any connection. His Honour also reasoned that any panic attack could not have persisted throughout the course of driving because of the length of the driving and the manoeuvres undertaken. Further, the sentencing judge was not satisfied on the balance of probabilities that a panic attack had influenced the applicant to drive in the first place. His Honour noted that Dr Nielssen put the prospect that the applicant had been affected by an acute panic attack just before the crash as a result of anxiety suffered when he left the premises no higher than that it was “one possible reason for his driving behaviour just before the crash”. It was open to his Honour to regard this as insufficient to prove the mitigating factor on the balance of probabilities.

5. [84]

   The issue whether the applicant’s decision to drive was precipitated by a panic attack was considered by Dr Nielssen who said that it seemed likely that the applicant left his partner’s place because of anxiety symptoms and that this might have led to a panic attack “just before the crash”. It was open to his Honour to regard the expression “likely” as being no more than a speculative possibility that the applicant had a panic attack. However, even if he had a panic attack immediately before the crash (as Dr Nielssen hypothesised as being a possibility), he must have driven a considerable distance, both furiously and without suffering from a panic attack. Moreover, the question whether it was likely that the applicant suffered from anxiety before leaving his partner’s residence was one to be determined, having regard to the balance of the evidence, including what the applicant himself said to police in June 2018.

6. [85]

   The principles as to onus of proof in sentencing are well established in that it is settled law that matters of aggravation need to be proved by the Crown beyond reasonable doubt and matters of aggravation need to be proved by the offender only 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). However, as Gleeson CJ said in Weininger v The Queen (2003) 212 CLR 629; [2003] HCA 14 at [19]:

7. [86]

   In the present case, the precise chronology could not be known (except in so far as the path and direction of his vehicle could be established by other evidence), given the unreliability of the applicant’s evidence as to what occurred, by reason of the inconsistency of his versions and also as to the amnesia which prevented him from recalling either the driving or the collision. Although his Honour found beyond reasonable doubt that panic did not influence the applicant’s driving, this was, in my view, not a necessary finding since his Honour had already found that matter on the balance of probabilities. This finding was open to his Honour on the evidence. To the extent to which it was influenced by credit findings, the statement to Dr Rodriguez about the onset of panic attacks was immaterial. The applicant had shown himself to be an unreliable historian by the time he spoke to Dr Nielssen on 30 July 2019 and 1 October 2019 and gave a different version to the one given to police on 4 June 2018.

8. [87]

   The difficulty with the applicant’s submission that he was incompetently represented is that there are substantial limitations on what a legal representative can do when a client departs in a significant way from what he or she said previously. The narrative derived from the further evidence, which is set out above, demonstrates the lengths to which the applicant’s legal representatives went to obtain some basis for mitigation, either by reason of panic attacks or the acquired brain injury arising from the previous assault. They obtained evidence from Dr Nielssen, which was not as favourable as they might have hoped, which led them to engage Dr Rodriguez in an attempt to improve the position.

9. [88]

   What they could not do was alter what the applicant had said to police in the ERISP or, if the applicant was to rely on Dr Nielssen’s report, what Dr Nielssen recorded that the applicant had told him. Nor could they change the incontrovertible facts (which were agreed) that the applicant had driven a significant distance at excessive speed and in a dangerous manner before the ultimate collision. The skill and co-ordination required to keep such a motor vehicle on the road (albeit on the wrong side of the carriageway and, for some distance, going the wrong way) for such a distance and over such a route was patently inconsistent with anything that might affect motor function beyond intoxication and therefore inconsistent with suffering a panic attack. There was no expert evidence on this matter.

10. [89]

    Although it might be possible to criticise the applicant’s legal representatives for not detecting the inconsistency between the history recorded by Dr Nielssen and that recorded by Dr Rodriguez; or failing to make an application for an adjournment (as opposed to foreshadowing it as a possibility), I am not satisfied that these matters could have affected the ultimate result. Were this Court to remit the matter, the evidence would be largely the same or to the same effect. Dr Rodriguez’s further report is insufficient to assist the applicant in terms of a panic attack accounting for his decision to drive or the collision, since those matters would depend on his history, which must be regarded as unreliable, having regard to the version given to police.

11. [90]

    I do not discern any error in the sentencing judge’s refusal to adjourn the matter to permit Dr Rodriguez to clarify the history he had been given. As is evident from the reasons for sentence, this matter was not, ultimately, material to the sentence imposed (notwithstanding its apparent significance in the course of the sentence hearing before his Honour had had a chance to read all the material). Further, the sentencing judge was entitled to ascribe importance to finality and to take into account the benefits of imposing the sentence, as far as the family of the deceased and the survivors and their families were concerned. The applicant had had the opportunity to have the sentencing hearing and to adduce evidence. The reason for the proposed adjournment was not such as to make it erroneous to refuse it.

12. [91]

    I propose, in so far as it is necessary, and having regard to what I have said above, to address the individual circumstances relied on by the applicant.

13. [92]

    I accept that the sentencing judge indicated that he was not inclined to adjourn the matter. Although no formal adjournment application was made, I accept that there was a reasonable apprehension that if nothing further was forthcoming as to why the matter ought be adjourned, the matter would not be adjourned. The sentencing judge had effectively indicated that he would not adjourn the matter for an apparently indefinite period (given that Dr Rodriguez was not available the following week and there was no indication as to when he would become available). I do not regard this circumstance as giving rise to any procedural unfairness.

14. [93]

    Although I accept Mr Irani’s evidence that he was not aware of the discrepancy in the histories recorded by Dr Nielssen and Dr Rodriguez, there is no evidence from Mr Peluso, who appeared on behalf of the applicant. Had Mr Peluso been aware of this, he could have asked the applicant in chief as to whether he had in fact told Dr Rodriguez that he had a history of panic attacks prior to his incarceration before his Honour raised the inconsistency. However, as his Honour raised the matter early in the applicant’s evidence in chief and directed Mr Peluso’s attention to the passage which appeared to be inconsistent, Mr Peluso was given the opportunity to have the applicant correct the history as a matter of underlying fact. Because this issue was ultimately of no moment, it did not give rise to any unfairness to the applicant. Further, there was no suggestion that panic attacks were either a recent invention on the part of the applicant or a recent development as Dr Nielssen had recorded a prior history of them and the applicant’s mother’s evidence established the prior history in any event.

15. [94]

    The new report from Dr Rodriguez, which was obtained after the applicant had been sentenced, contained a “corrected” history of panic attacks in that it recorded the applicant’s long history of panic attacks. This accorded with the history given to Dr Nielssen in July and October 2019, which was before his Honour in any event. Furthermore, as set out above, the sentencing judge accepted Dr Nielssen’s opinion and the history given to him, except in so far as it was at odds with what the applicant had said to police in June 2018.

16. [95]

    It is also of significance that the new report of Dr Rodriguez dated 17 June 2020 did not rise beyond the level of possibility or plausibility on the issue of a connection between the offending conduct and the applicant’s panic attacks. On this basis, there is no reason to infer that it would have made any material difference to the sentencing judge’s decision, since his Honour considered that possibility in any event.

17. [96]

    As referred to above, Mr Game accepted both that the ERISP was admissible on the sentence hearing and that the applicant was, in effect, required to give evidence on sentence in order to prove matters such as remorse and the histories given to experts. Once the ERISP was tendered (as I am satisfied it was and that this was common ground), it was in evidence for all purposes. Mr Game did not suggest any particular limitation which he contended Mr Peluso ought to have applied for. While the cross-examiner could have taken the applicant through all the statements he made to the police and asked him to explain why they were, in some cases, at odds with his evidence or the histories he had given or his oral evidence at the hearing, it was not necessary that this be done to fulfil the requirements of procedural fairness.

18. [97]

    The transcript indicates that the applicant accepted that he was interviewed by police and that he had given the answers recorded in the ERISP. Some of these answers painted a different picture from the versions he gave later. What the cross-examiner did was sufficient to accord natural justice since this approach put the applicant squarely on notice that his credibility was sought to be impugned on the basis of prior inconsistent statements and that the Crown would contend that the version he had given two months after the incident was more reliable. It was then a forensic decision for Mr Peluso to decide whether to re-examine the applicant on the inconsistencies, with a view to obtaining an explanation for them (a potentially dangerous forensic course) or to leave the matter where it was. He did the latter. I am not satisfied that this was other than a reasonable forensic decision in the circumstances or that it gave rise to any unfairness to the applicant. The applicant was the author of his own predicament by committing himself to one version to police (who gave him ample opportunity to explain himself) and then seeking to depart from it later. For the reasons given above, his legal advisers cannot be criticised for being unable to remedy this situation.

19. [98]

    It was plain from the Crown’s cross-examination that the Crown sought that an adverse inference be drawn that the applicant was not a reliable historian because of the discrepancy between the ERISP and subsequent accounts. Further, the Crown submitted that the account given to police was accurate (and more reliable because of its relative proximity to the actual events) and that there was no mental condition which mitigated the offending conduct as the applicant left the premises to visit a friend in circumstances where there was no particular tension and no suggestion of a panic attack. In these circumstances, I am not persuaded that defence counsel was not on notice of the prospect that the sentencing judge would draw those inferences. Indeed, one of the principal purposes of cross-examination is to provide procedural fairness, including by signalling submissions that will be made as to inferences that could be drawn by the judge: Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] 1 NSWLR 1 at 16C-E (Hunt J).

20. [99]

    For the reasons given above, I do not regard the Crown as having failed to put the statements to the applicant. It was plain from the cross-examination that the Crown relied on the fact of there being inconsistent statements as to what had happened immediately before the applicant left his partner’s premises.

21. [100]

    This matter has already been addressed above. For the reasons already given, I am not persuaded that this circumstance has been made out.

22. [101]

    This ground repeats circumstance 5 in ground 1 and does not need to be addressed further.

23. [102]

    The question whether the applicant’s mental state affected either his decision to drive, his driving or his conduct at the time of the collision was one to be answered by reference to factual evidence of what occurred immediately before he drove the vehicle, the route, length and manner of his driving, and expert evidence about those facts and circumstances. The applicant could not recall the time between walking to his car and being in the ambulance after the collision. The manner of his driving and his route was the subject of the agreed facts.

24. [103]

    The evidence about his decision to drive came from the applicant and his partner. In the first version he gave, there was no tension which led him to drive. In his later versions, the applicant said that he was suffering anxiety (which was consistent with a panic attack) and in a later version (in the reference, which was tendered), Ms Blackwell said that the applicant appeared to be uncomfortable, had a look of panic and had “zoned out”.

25. [104]

    Dr Nielssen (in his report which was before the sentencing judge) said that it was possible that he was suffering anxiety (and an associated panic attack) just before the collision. Dr Rodriguez said (in his latest report) that it was possible that he was suffering anxiety before leaving his partner’s home in his car. No expert evidence provided any support for a finding that driving of the type and length engaged in by the applicant was consistent with a prolonged panic attack.

26. [105]

    The narrative set out above demonstrates the extent to which the applicant’s solicitors endeavoured to obtain evidence, whether of the effect of panic attacks, or of the acquired brain injury, which would mitigate the offending conduct. I am not persuaded that the further report of Dr Rodriguez makes any material change to the evidence which had already been adduced on behalf of the applicant before the sentencing judge.

27. [106]

    In order to make out ground 4, the applicant must demonstrate that the aggregate sentence was unreasonable or plainly unjust: Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [3]-[4] and [6] (Gleeson CJ and Hayne J); Markarian v The Queen (2005) 228 CLR; [2005] HCA 25 at [25] (Gleeson CJ, Gummow, Hayne and Callinan JJ). Such a finding is a conclusion and does not depend on the demonstration of patent error. Although the indicative sentences are relevant because they provide some indication of the basis for the aggregate sentence, they are not amenable to appeal: see the principles summarised in [40] of JM v R [2014] NSWCCA 297; (2014) 246 A Crim R 528 (R A Hulme J, with whom Hoeben CJ at CL and I agreed).

28. [107]

    There was considerable notional concurrency incorporated in the aggregate sentence (notional because the overlap did not need to be expressed, as would have been required, before the enactment of s 53A of the Crimes (Sentencing Procedure) Act), which had regard to the circumstance that the offences were committed in a single episode within a short period of time. There was some degree of notional accumulation to take account of the circumstances that one person had been killed and three others had suffered grievous bodily harm.

29. [108]

    There is considerable difficulty, as the sentencing judge noted in his reasons, in making comparisons with other cases in areas such as the present. The differences between the instant case and the typical case outlined in the guideline judgment of R v Whyte were significant. Further, comparisons between sentences for manslaughter are apt to be unhelpful because of the myriad situations in which the offence can be committed, which have led to the offence being described as “protean”: R v Blacklidge (Court of Criminal Appeal (NSW), Gleeson CJ, Grove and Ireland JJ agreeing, 12 December 1995, unrep) at 2-3 and R v Forbes [2005] NSWCCA 377; 160 A Crim R 1 at [133] (Spigelman CJ, McClellan CJ at CL and Hall J agreeing).

30. [109]

    The present offending was characterised by its length in terms of time and distance, the highly excessive speed at which the applicant was travelling and that he was, for a significant portion of his journey, driving against, and in the same lane as, oncoming traffic in circumstances where those he encountered would not have been expecting a car coming towards them and would have little or no opportunity to avoid that car. It appears remarkable that the journey continued over such a distance before the applicant’s vehicle collided with another (although it side-swiped three other vehicles prior to the fatal collision). At the speed at which he was travelling, it was nigh inevitable that those in vehicles with which he collided would suffer grievous bodily harm if not death, as occurred in the present case. It was also inevitable that, if his vehicle collided with another, the forces would be significant, given that a collision was likely to be head-on when he was driving at high speed against the permissible direction of travel.

31. [110]

    It is important that a sentence for an unlawful homicide reflect that a human life has been taken. The injuries sustained by the three other persons were, as the plea implied, grievous. The survivors will have to live with the physical and emotional scars left by the offending conduct for the rest of their lives.

32. [111]

    Mr Game referred to other cases where lesser sentences were imposed. I have considered each of those cases, although they are of limited assistance in this context: Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [53]-[54] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).

33. [112]

    It is evident from the reasons that the sentencing judge appropriately took into account the discount for the plea of guilty, the applicant’s youth, his mental conditions, the sincerity of his remorse, his prospects of rehabilitation and the unlikelihood that he would ever re-offend. However, these favourable subjective matters had to be weighed in the balance against the objective seriousness of the offending.

34. [113]

    Notwithstanding the submissions of Mr Game, I am not satisfied that it was not open to the sentencing judge to impose the aggregate sentence which was in fact imposed nor that it was either unreasonable or plainly unjust. Accordingly, ground 4 has not been made out.

Proposed orders

1. [114]

   For the following reasons, I propose the following orders:

   1. (1)

      Grant leave to appeal against sentence.

   2. (2)

      Dismiss the appeal.