Rigby v R

1. [1]

   ADAMSON JA: Cecilia Rigby (the applicant) seeks leave to appeal against the sentence imposed on her by Conlon SC ADCJ (the sentencing judge) on 13 November 2023 for a single charge of aggravated dangerous driving occasioning grievous bodily harm (contrary to s 52A(4) of the Crimes Act 1900 (NSW)), to which she pleaded guilty. The sentencing judge imposed a sentence of 2 years and 6 months imprisonment, commencing on 13 September 2023 and expiring on 12 March 2026, with a non-parole period of 1 year and 2 months, expiring on 12 November 2024 (reflecting a finding of special circumstances and a ratio of 47% between the non-parole period and the total term).

2. [2]

   The applicant seeks leave to appeal on the following grounds:

3. [3]

   The facts set out in the sentencing judgment, with one exception (which is the subject of ground 1) were derived from the facts agreed by the parties. The following is a summary of the agreed facts.

The agreed facts

1. [4]

   On Friday 4 September 2020, the applicant drove 50km along the Pacific Highway from her home at Nambucca Heads to the Plantation Hotel at Coffs Harbour to meet friends at noon. She stayed at the hotel, drinking red wine, until 6pm, when she left the hotel, got into her car and began to drive home. The visibility was good although the sun had set at 5.40pm.

2. [5]

   The applicant was driving in a southerly direction along the Pacific Highway in the kerbside lane at about 90km/h. There were two cars in front of her in that lane: the first was a car driven by Elizabeth Keen and the second was travelling between Ms Keen’s vehicle and the applicant’s vehicle. The applicant overtook the other car and rejoined the kerbside lane behind Ms Keen’s vehicle. She swerved from left to right and crossed over the left fog line on the left of the kerbside lane. She then attempted to overtake Ms Keen’s vehicle by moving into the centre lane. As she was doing so, her front passenger’s side door made contact with the rear driver’s side of Ms Keen’s vehicle, causing Ms Keen to lose control of her vehicle, which spun across the centre southbound lane and came to rest on the grass median strip. The applicant’s vehicle also spun out of control and travelled across the southbound centre lane and over the grass median strip into the northbound centre lane, where it collided with a vehicle driven by Lynette Jervis, which was travelling north at 70km/h. Although Ms Jervis tried to swerve, she could not avoid colliding with the applicant’s vehicle.

3. [6]

   The force of the collision activated the airbags in Ms Jervis’ vehicle and the whole front of her vehicle (which was subsequently written off) was caved in. Ms Jervis sustained a shallow fracture to her sternum, fractures to her L3 vertebrae and second rib as well as a subdural haematoma, thoracic trauma and various bruises and lacerations. By her plea of guilty, the applicant accepted that these injuries, taken together, constituted grievous bodily harm.

4. [7]

   Ms Jervis, who remained conscious, got out of her vehicle and was taken to hospital by ambulance. The applicant was also taken to hospital. The whole front of her vehicle was also caved in and one whole side had scrapes and dents and the rear bumper fell off. Her vehicle was also subsequently written off. She sustained a fractured neck and broken left wrist, which required surgery. There were bruises and scrapes on her body. A blood sample was taken at 7.30pm which returned a blood alcohol concentration reading of .208g/100ml.

5. [8]

   It was common ground (although it was not included in the agreed facts) that when Ms Jervis was admitted to hospital she was treated with blood thinners, which were contra-indicated because of the subdural haematoma which she had sustained in the collision. The blood-thinners caused her death at the hospital.

6. [9]

   On Monday 26 October 2020, the applicant went to the Coffs Harbour police station and took part in an Electronically Recorded Interview with a Suspected Person (ERISP) in which she said that she could recall arriving at the Plantation Hotel but had no recollection of subsequent events, including the collision. She was arrested, charged and remanded in custody, where she remained until 7 December 2020 (as recorded in JusticeLink) when she was granted bail. The applicant admitted that her manner of driving was the cause of the collision.

7. [10]

   The applicant was initially charged with aggravated dangerous driving causing death. She offered to plead guilty to aggravated dangerous driving causing grievous bodily harm. Her plea was ultimately accepted following investigation into the cause of Ms Jervis’ death (which was accepted to have been caused, in a legal sense, by the negligence of the hospital at which she was treated and not the applicant’s driving). The Crown accepted that she was entitled to a 25% reduction in her sentence as a result of the early plea.

The proceedings on sentence

1. [11]

   At the proceedings on sentence, which took place on 1 September 2023, documents were tendered and the parties relied on written submissions. No oral evidence was adduced.

2. [12]

   The Crown tendered the agreed facts, the applicant’s NSW criminal history, her custodial history and her NSW traffic history. The applicant tendered the following documents (the substance and relevance of which is set out in the following table).

3. [13]

   Both the Crown and the applicant filed written submissions before the sentence hearing.

4. [14]

   The Crown submitted in writing that, although Ms Jervis’ injuries did not reach the catastrophic level seen in other matters, the injuries were not at the “bottom of the range”. It submitted further:

5. [15]

   As to the subjective material, the Crown submitted:

6. [16]

   The Crown referred to the material tendered by the applicant which was “presumably relied upon to explain her consumption of alcohol prior to the collision” and referred to R v Doyle [2006] NSWCCA 118 in which this Court held at [28]-[30] that the reasons for consumption of alcohol were largely irrelevant since it was the decision to drive while affected which is the subject of punishment. It also submitted that the applicant’s “level of intoxication, length and timing of the trip proposed and thoroughfare to be negotiated resulted in significant risk presenting to the community”.

7. [17]

   The Crown highlighted the importance of general and specific deterrence. The Crown addressed the guideline judgments of R v Jurisic (1998) 45 NSWLR 209 (Jurisic) and R v Whyte (2002) 55 NSWLR 252; [2002] NSWCCA 343 (Whyte).

8. [18]

   The Crown accepted that there had been some delay, noting that the time between 26 October 2020, when the applicant was arrested, and 24 June 2022, when the applicant offered to plead guilty to aggravated dangerous driving occasioning grievous bodily harm, was attributable to a considerable investigation into the cause of Ms Jervis’ death. It was not until 17 April 2023, when the defence served a report of Dr Frellich that “sufficiently demonstrated the severance of the causal nexus” between the death of Ms Jervis and the applicant’s driving, that the Crown had a foundation to accept the plea, which was accepted in about May 2023.

9. [19]

   The Crown also accepted that the applicant’s subjective circumstances (particularly her diagnosis with cancer in June 2022 and her otherwise good character) establish special circumstances which would warrant an alteration of the statutory ratio.

10. [20]

    The Crown submitted that:

11. [21]

    It also submitted that the mandatory period of five years’ disqualification from holding a driver’s licence (s 205(3)(d)(i) of the Road Transport Act 2013 (NSW)) ought not be departed from.

12. [22]

    The applicant submitted that as “the degree of injury is very low”, the sentence ought be “at the lowest end of the spectrum”. Her counsel argued that several of the factors outlined in Whyte were inapplicable and refused to concede that the injury to Ms Jervis was permanent, submitting that “the injuries caused here but barely meet the definition of [grievous bodily harm]”.

13. [23]

    The applicant submitted in respect of her criminal history:

14. [24]

    The applicant submitted further:

15. [25]

    Under the heading, “Comparative cases and Statistics”, the applicant addressed the sentencing statistics from both the Local Court and the District Court for offences contrary to s 52A(4) of the Crimes Act. In this section, the applicant submitted:

16. [26]

    After referring to Stanley v Director of Public Prosecutions (NSW) [2023] HCA 3; (2023) 299 A Crim R 391 (Stanley), the applicant submitted, in support of her submission that an Intensive Correction Order (ICO) would be appropriate:

17. [27]

    The applicant also relied on delay, the diagnosis in June 2022 of breast cancer with subsequent treatment and ongoing need for monitoring, and the stress and anxiety she suffers. It was submitted on her behalf that a custodial penalty would occasion hardship to the applicant’s son and that any period of incarceration would be more onerous because of her mental health issues and cancer diagnosis. She submitted that she had demonstrated remorse and contrition, had good prospects of rehabilitation, was unlikely to re-offend and that she did not have a significant criminal history.

18. [28]

    The sentence hearing was brief. The sentencing judge enquired of the parties whether there was any objection to the imposition of the sentence being deferred until after the applicant’s son had completed his HSC exams. The parties agreed to this course. At the outset of the sentencing hearing before the parties had begun their oral submissions, the sentencing judge said:

19. [29]

    The Crown submitted that Ms Jervis’ injuries were not towards the mid-range but said that they had caused her to be taken to hospital after the accident and would have had a significant impact. In relation to delay, the Crown submitted that the applicant had only offered to plead guilty to the offence on 24 June 2022 and the delay until the plea was accepted in about May 2023 was due to the fact that the defence expert evidence which established that the causal nexus between the applicant’s driving and Ms Jervis’ death was severed was not served until this time. The Crown also relied on the applicant’s prior criminal history of drink-driving offences and reiterated that the applicant had a high degree of moral culpability. The Crown reminded the sentencing judge of s 21A(5AA) of the Crimes (Sentencing Procedure) Act 1999 (NSW) which precludes a sentencing judge from taking self-induced intoxication into account as a mitigating factor.

20. [30]

    The applicant submitted that Ms Jervis’ injuries “fall very much to the bottom end of the scale” and that “the degree of injury is a significant indicator of objective criminality and, therefore, sentence”. The applicant also submitted that, taking into account all relevant matters including the discount for the plea and some degree of extra-curial punishment, a sentence of less than two years’ imprisonment might be appropriate, in which case an ICO would be a suitable alternative.

21. [31]

    In the course of submissions, the sentencing judge put to the applicant’s counsel that the applicant would appear to have abandoned her responsibility to other road users as follows:

22. [32]

    The applicant argued against that proposition on the basis that the applicant had no memory of the collision. The sentencing judge put to the applicant’s counsel that the fact of abandoned responsibility did not have to take into account any subjective material about what was in the mind of the offender at the time.

The sentencing judgment

1. [33]

   The sentencing judge set out the facts in accordance with the agreed facts which have been summarised above.

2. [34]

   His Honour described the injuries sustained by Ms Jervis correctly in the following passage:

3. [35]

   However, there was a factual error regarding the treatment for Ms Jervis’ injuries (highlighted in the extract below) when the sentencing judge addressed the objective seriousness of the offence as follows:

4. [36]

   Under the heading, “SUBJECTIVE CIRCUMSTANCES”, the sentencing judge referred to the applicant’s criminal history as follows:

5. [37]

   His Honour summarised the evidence adduced on behalf of the applicant, including as to the history of domestic abuse which she had first suffered when she was 22 years old and that this occurred again in a subsequent relationship. The abuse had continued until about six years before the sentence hearing.

6. [38]

   The sentencing judge noted the injuries which the applicant sustained in the collision as follows:

7. [39]

   The sentencing judge also referred to the history which the applicant had given to the psychologist that on the day before the offence she had had a distressing exchange with her former partner in which he told her, “‘your kids are lucky they’ve still got a mum,’ which she said she interpreted as a veiled threat”. She chose to meet her friends in Coffs Harbour the following day at the hotel, hoping that “this would be ‘therapeutic’ for her, given her distressed state”.

8. [40]

   The sentencing judge referred to the purposes of sentencing in the following passage:

Ground 1: alleged error in assessment of objective seriousness

1. [41]

   Ms Rodger, who appeared for the applicant in this Court, submitted that the sentencing judge’s assessment of objective seriousness as being at least “mid-range” was based on two matters, each of which was erroneous: first, that it was based, “in large part” on the fact that the sentencing judge considered that the victim required surgery; and, second, that the sentencing judge failed to set out all the matters relevant to objective seriousness and the aggravating factors referred to in the guideline judgments of Whyte and Jurisic. These will be dealt with in turn.

2. [42]

   It is plain from the sentencing judge’s reasons for the finding of objective seriousness that the gravity of Ms Jervis’ injuries was only one of a number of factors which were relevant to that assessment. The high level of intoxication, the applicant’s incapacity to control her vehicle, the busyness of the highway at that time, the length of the trip and the time into the trip when the collision occurred were addressed before the trial judge referred to the injuries sustained by Ms Jervis, which his Honour did not accept fell “right at the bottom end of the range”. His Honour’s assessment of “these facts” (that is, all the facts under the heading, “OBJECTIVE SERIOUSNESS”) led him to conclude that there had been (objectively) an abandonment of responsibility by the applicant whose moral culpability (judged objectively) was, accordingly, high.

3. [43]

   Ms Rodger submitted that because the sentencing judge had made an error of fact in assessing the gravity of the injuries to Ms Jervis (by misstating that her injuries required surgery when that had not been positively established by the evidence), the assessment of objective seriousness was itself flawed and that this Court was, accordingly, required to set aside the sentence imposed and re-sentence in accordance with Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37.

4. [44]

   The apparent error in the present case is of a similar type to that considered in Kendall v R [2015] NSWCCA 13. In that case, the sentencing judge erroneously found that the offender had punched the victim, a 71-year old woman who was sexually assaulted by the offender in the course of a break and enter offence. The evidence did not establish that he had punched her but it did establish that he had pushed her to the ground. As in the present case, the offender argued that the factual error led to an incorrect assessment of objective seriousness (which the sentencing judge found to be “near … the highest level of offending behaviour”: [23]).

5. [45]

   Hoeben CJ at CL (Johnson and Hamill JJ agreeing) said, at [27]:

6. [46]

   This Court criticised the applicant’s submissions which it considered “somewhat artificially compartmentalised the elements of the offences as the only indicia of seriousness” and “made no mention of major aggravating features such as the vulnerability of the victim and the effect of the offences on her”: [29]. This Court referred to the classic statement in Mulato v R [2006] NSWCCA 282 at [37] in which Spigelman CJ (Simpson and Adams JJ agreeing) said:

7. [47]

   Whether or not an injury requires surgical intervention does not determine its seriousness. Indeed, many very serious injuries are serious because they are “inoperable”. Further, if surgery is not an option, the recovery may be more painful and take longer. A subdural haematoma (a bleed beneath the dura in the brain which gives rise to an accumulation of blood within the tissues) is commonly treated by surgery, although the evidence in the present case did not go so far as to establish positively that, but for Ms Jervis’ untimely death, it would have been. There is no necessary relationship between the severity of an injury and whether surgery is appropriate to treat it. Accordingly, the treatment required was neither aggravating nor mitigating and belonged to the category of facts which did not attract the differential standard of proof considered in The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54 at [27] (Gleeson CJ, Gaudron, Hayne and Callinan JJ): see Weininger v The Queen (2003) 212 CLR 629; [2003] HCA 14 at [22] (Gleeson CJ, McHugh, Gummow and Hayne JJ).

8. [48]

   In my view it was open to the sentencing judge to assess the objective seriousness as “mid-range”. The level of alcohol consumed and the corresponding level of the applicant’s intoxication, the speed at which she was travelling, the location, time and length of her journey, and the difficulties of successfully accomplishing the overtaking manoeuvre when her capacity to handle her vehicle was so significantly affected by her intoxication together put the objective seriousness well above the low level. The injuries sustained by Ms Jervis were very serious (as was implicit in the applicant’s plea to an offence which had grievous bodily harm as an element) although, as the sentencing judge found, far from catastrophic in the context of that offence.

9. [49]

   In my view, the factual error made was slight and of no consequence to the assessment of objective seriousness. It appears to have been no more than a slip of the tongue by the sentencing judge, who elsewhere stated the facts correctly. I am not persuaded that ground 1 has been made out on the basis of this alleged error.

10. [50]

    It is therefore not necessary in the present case to address the different approaches taken by this Court as to the consequences of factual error, including because the parties did not address this matter in their submissions. The applicant appeared to assume that any factual error would lead to the setting aside of the sentence and the Crown took a narrower view and appeared to contend that, if the factual error was shown to be of no, or little, moment, there was no requirement for this Court to intervene.

11. [51]

    The broadest approach to the effect of factual error on sentence is reflected in Hordern v R [2019] NSWCCA 138; (2019) 278 A Crim R 353 (Hordern). However, I do not understand Basten JA (Hamill and Lonergan JJ agreeing) in Hordern to have gone so far as to say that any factual error, of whatever magnitude or import, will invalidate the sentence and will require this Court to re-sentence the applicant. Rather, his Honour said that factual errors (implicitly, some factual errors) were capable of causing the sentencing discretion to miscarry such that the sentence imposed ought be set aside and the re-sentencing process undertaken.

12. [52]

    The applicant submitted that the sentencing judge failed to address each of the characteristics of the “frequently recurring case of an offence under s 52A” of the Crimes Act set out in Whyte and each of the aggravating factors referred to in Jurisic.

13. [53]

    Both Whyte and Jurisic were guideline judgments given pursuant to s 37A of the Crimes (Sentencing Procedure) Act which empowers this Court to give a judgment which contains guidelines to be taken into account by sentencing judges.

14. [54]

    In Jurisic, Spigelman CJ said at 231B-D:

15. [55]

    Spigelman CJ articulated the following guideline (with which the other members of the Court agreed) at 231E-F:

16. [56]

    In Whyte, Spigelman CJ said at [204]:

17. [57]

    At [217] of Whyte, Spigelman CJ amended aggravating factor (v) in Jurisic from “erratic driving” to “erratic or aggressive driving” and also added to the list:

18. [58]

    Spigelman CJ said of the list of aggravating factors in Jurisic (as amended), at [228] of Whyte:

19. [59]

    The applicant was not a typical offender envisaged by the guideline judgments since she was 56 years old at the time of the offending; she had relevant prior convictions for drink driving; and she sustained injuries in the collision. As referred to above, the parties at the sentence hearing listed the factors from Whyte and Jurisic and indicated in respect of each whether it was contended to be relevant.

20. [60]

    In this Court, Ms Rodger submitted that the sentencing judge’s assessment of objective seriousness was erroneous when regard is had to the guideline judgments in the following respects:

    1. (1)

       the guideline referred to the typical case as one involving “permanent injury” but the evidence in the presence case (due to Ms Jervis’ untimely death) did not establish whether any of the injuries she sustained were permanent; and accordingly the injuries could not be considered to be “mid-range”;

    2. (2)

       it was inconsistent with the guideline for the sentencing judge to find that the length of the trip (which the applicant submitted was a “short trip of 10 minutes”) aggravated the seriousness of the offence;

    3. (3)

       it was erroneous to find that the applicant had abandoned responsibility when:

    4. (4)

       the sentencing judge made no reference to the applicant’s submission that summary disposal was available for the offence in circumstances where the strictly indictable offence (aggravated dangerous driving occasioning death) had been withdrawn and the applicant did not have a significant criminal history; and

    5. (5)

       the sentencing judge did not “truly contemplate” the imposition of an ICO.

21. [61]

    As to (1), there were several significant differences between the typical case contemplated by the guideline judgments and the present case. Section 37A of the Crimes (Sentencing Procedure) Act does not require a sentencing judge to address factors in a guideline judgment which are not relevant to the case before the judge, particularly in a case such as the present which is far removed from the typical case envisaged by the guideline judgment. The sentencing judge did not sentence the applicant on the basis that Ms Jervis suffered permanent injury, it being plain that, in the events that happened, whether the injuries she sustained were permanent or not could not be ascertained. Further, the gravity or permanence of the injuries sustained is only one factor which is germane to an assessment of objective seriousness. Objective seriousness is not directly proportional to the gravity of the injuries sustained. For the reasons given above, their gravity was found to be neither at the lowest end nor catastrophic. The other factors identified above were plainly important to the assessment.

22. [62]

    As to (2), I reject the applicant’s submission that because the applicant’s journey of 50km was brought to an end by the collision after 10 minutes, the journey ought be regarded as “short”. There is a difference between embarking on a journey of 50km which is brought to an end after ten minutes by one’s own criminal conduct and embarking on a ten-minute journey. All other things being equal, embarking on a journey of 50km when seriously intoxicated is objectively more serious than embarking on a 10-minute journey. The fact that the collision occurred early in the applicant’s 50km journey is supportive of a finding that the applicant was unable to control her vehicle and was driving in a dangerous manner.

23. [63]

    As to (3), the question of moral culpability arising from abandonment of responsibility was plainly raised in the passage extracted at [228] from Whyte. Although it was not raised by the Crown in the sentence hearing, it was raised by the sentencing judge before the oral submissions began and his Honour put it clearly to the applicant’s counsel during the course of the submissions. I note for completeness that the moral culpability arising from abandonment of responsibility in this context was a purely objective matter arising from the level of intoxication, the length of the journey and the circumstances of the collision. There was no denial of natural justice to the applicant and it was entirely appropriate for the sentencing judge to raise it. I reject the applicant’s submission that the issue of abandonment of responsibility was confined to the immediate circumstances of the collision – the swerving and loss of control of the vehicle while the applicant was intoxicated. It was also relevant to a finding whether the applicant could be regarded as having abandoned responsibility to consider the level of intoxication, the length of the proposed journey, the type of road, number of users and speed limit, the time of day, as well as the manoeuvre which the applicant sought to accomplish when she lost control.

24. [64]

    In support of (4), the applicant relied on Zreika v R [2012] NSWCCA 44; (2012) 223 A Crim R 460 (Zreika). In Zreika, the Court (Johnson J, McClellan CJ at CL and Rothman J agreeing) considered the relevance, or otherwise, of an offence being charged on indictment although it could, and would, have been dealt with summarily but for extraneous factors. In [103] of Zreika, the Court referred to R v El Masri [2005] NSWCCA 167, in which the applicant was found not guilty of assault with intent to rob in circumstances of aggravation. He had pleaded guilty to the alternative count of assault occasioning actual bodily harm, but the Crown rejected the plea and the applicant was convicted of the second count only at trial. The Crown accepted that the offence for which the applicant stood to be sentenced would have been dealt with summarily, but for the inclusion of the more serious charge on the indictment.

25. [65]

    In Zreika, Johnson J said, of the relevance of an offence being amenable to being dealt with summarily:

26. [66]

    The applicant referred to the circumstance that the matter could have been dealt with summarily before the sentencing judge in support of the submission that Local Court sentencing statistics were also relevant. However, the prospect that the matter could have been dealt with by the Local Court did not, in my view, rise beyond a “bare theoretical possibility”. It is plain from the sentence actually imposed that the sentencing judge considered that the appropriate sentence (a head sentence of 2 years and 6 months’ imprisonment) exceeded the jurisdictional limit of the Local Court of 2 years’ imprisonment: see s 267(2) of the Criminal Procedure Act 1986 (NSW). Accordingly, in these circumstances, it was not necessary for the sentencing judge to state expressly in his Honour’s reasons for judgment that the matter could have been dealt with by the Local Court because, on his view, it would not have been appropriate in any event for that to have occurred.

27. [67]

    As to (5), it is plain from the transcript that the sentencing judge had read the material, including the parties’ written submissions, before the commencement of the sentence hearing. The fact that his Honour raised the possibility of deferring imposition of the sentence until after the applicant’s son had completed his HSC exams was a clear indication that the sentencing judge envisaged that a sentence of full-time imprisonment would be required.

28. [68]

    An ICO is not available for a single offence if “the duration of the term of imprisonment exceeds 2 years”: s 68(1) of the Crimes (Sentencing Procedure) Act. The sentencing judge followed the approach set out in Stanley: namely, his Honour determined that the threshold for a sentence of imprisonment had been crossed and determined the total term of the sentence (2 years and 6 months). As the term was greater than would allow for an ICO, his Honour was not obliged to consider an ICO further.

Ground 2: alleged error in assessing the applicant’s subjective circumstances

1. [69]

   The applicant submitted that the sentencing judge erred in addressing the applicant’s subjective circumstances by failing to address the following matters:

   1. (1)

      the relevance of the applicant’s prior offending;

   2. (2)

      the submission by the applicant that the injuries she suffered amounted to extra-curial punishment; and

   3. (3)

      the relevance of domestic abuse and the applicant’s use of alcohol to self-medicate.

2. [70]

   As to (1), the sentencing judge noted the applicant’s prior offending and found specific deterrence to be a “significant factor”. It was not necessary for the sentencing judge to say more than this since it was evident from the applicant’s written submissions that the applicant accepted that her criminal history was relevant to the index offending. I reject the applicant’s submission that it was put on her behalf that the criminal history was only such as to disentitle her from leniency. The applicant’s legal representative plainly appreciated that the criminal history was a matter which was potentially relevant to several factors, including specific deterrence, prospects of rehabilitation, likelihood of re-offending and the need for a sentence of full-time custody.

3. [71]

   As to (2), the applicant’s counsel in the sentence hearing made reference to “extra-curial punishment” in support of his submission that an ICO would be appropriate. However, it is not clear from the submission what was being referred to since there was no reference in this context to the injuries which the applicant had sustained in the collision (which were amply detailed in the sentencing judgment). It is possible that it was a reference to the disqualification from driving which had, during the period between the offending conduct and the imposition of the sentence, resulted in the applicant not being permitted to drive (including to obtain treatment for cancer). In these circumstances, it was not erroneous for the sentencing judge not to address the submission which was put on behalf of the applicant in this Court (and not the Court below) that her injuries amounted to extra-curial punishment. It is, accordingly, unnecessary for this Court to say anything further about whether such injuries amount to extra-curial punishment.

4. [72]

   As to (3), his Honour plainly took into account the applicant’s subjective circumstances, which included domestic abuse, and her tendency to self-medicate with alcohol at times of stress. However, the sentencing judge was prohibited by s 21A(5AA) of the Crimes (Sentencing Procedure) Act from taking into account self-induced intoxication as a mitigating factor when determining an appropriate sentence. Thus, even if it be the case that the applicant drank to excess because of the stress she was suffering as a result of the interchange with a former domestic partner the day before, the sentencing judge could not take that matter into account (because the applicant’s intoxication was self-induced) in mitigation on sentence. It was the applicant’s decision to drive while intoxicated, not her decision to drink and thereby render herself intoxicated, for which she is to be punished. I am not persuaded that his Honour was in error as alleged.

5. [73]

   For the reasons given above, ground 2 has not been made out.

Proposed orders

1. [74]

   For the reasons given above, I propose the following orders:

   1. (1)

      Grant leave to appeal.

   2. (2)

      Dismiss the appeal.

2. [75]

   WILSON J: I agree with the orders proposed by Adamson JA, for the reason her Honour has given.

3. [76]

   DHANJI J: I agree with the orders proposed by Adamson JA and, subject to the following observations, with her Honour’s reasons.

4. [77]

   Sentencing for offences such as the present is notoriously difficult. That difficulty, in large measure, stems from the fact that any sentence must incorporate the offender’s responsibility for death or serious injury which was neither intended, nor, in nearly all cases, contemplated by the offender. It was that difficulty that led to this Court setting, prior to any legislative scheme for doing so, the first of various guideline judgments in R v Jurisic (1998) 45 NSWLR 209 (which guideline was later modified in R v Whyte (2002) 55 NSWLR 252; [2002] NSWCCA 343). The conduct of the applicant in embarking on a lengthy journey, necessarily involving driving at high speed, with such a high level of alcohol in her blood, involved a high level of moral culpability. The consequences of her driving, that is, whether it occasioned death or serious injury, or something less, was largely a matter of happenstance. Nonetheless, as a result-based offence, the degree of injury is a significant aspect of the objective gravity of the offence. In the present case, the injuries were at the lower end of the range, though found by the sentencing judge not to be “right at the bottom end of the range”. Given this important aspect of the objective seriousness of the offending, I would accept that the sentence imposed on the applicant was a severe one. However, given the nature of the appeal (assuming leave is granted) it is necessary for the applicant to establish error in the exercise of his Honour’s discretionary judgment.

5. [78]

   With respect to ground 1, the applicant’s submissions in this Court were, as expressed in the ground itself, focussed on establishing an error in the assessment of objective seriousness. As Adamson JA points out, establishing a complaint in these terms will often be difficult, having regard to the nature of the exercise being performed by the sentencing judge when making this assessment: Mulato v R [2006] NSWCCA 282. As has been pointed out many times, expressions such as “mid-range”, “above mid-range” or “below mid-range” are necessarily imprecise: see the discussion in JG v R [2023] NSWCCA 33 at [94]-[103] , per Wilson J (in dissent, but not as to this point); Salama v R [2023] NSWCCA 141 at [47]-[49] per Wilson J (Wright and Fagan JJ agreeing); Braithwaite v R [2024] NSWCCA 15 at [37] (per Leeming JA); DH v R [2022] NSWCCA 200 at [60]; Cargnello v Director of Public Prosecutions (Cth) [2012] NSWCCA 162; (2012) 224 A Crim R 204 at [88].

6. [79]

   The point made above, however, does not mean that if the sentencing judge mistakes the facts in making an assessment of objective seriousness, that error is of no consequence if the assessment of objective seriousness ultimately arrived at was open to the sentencing judge. Indeed, it is because of the imprecision in the conclusion as to objective seriousness that an error of fact in the context of the assessment of objective gravity cannot be dismissed in this way. That is to say, the imprecision in the ultimate assessment of objective seriousness will often mean any contribution made to it by an error as to a fact cannot be determined, with the result that the possibility the error (adversely) impacted the result cannot be excluded.

7. [80]

   Returning to the present case, an aspect of the applicant’s complaint was that the sentencing judge mistook the facts when assessing the objective seriousness of the offence. House v The King (1936) 55 CLR 499 at 505 definitively sets out the bases on which it may be established that the exercise of a discretion has miscarried. A mistake as to the facts is, of course, one of those bases. Despite the apparent breadth of the High Court’s statement in House v The King, it will not be every mistake as to the facts (or error as to principle, or relevant or irrelevant consideration wrongly overlooked or taken into account) that will vitiate the exercise of the discretion: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [42]. For example, here, had the sentencing judge mistakenly considered the applicant to have been 57 years old rather than 56 at the time of driving, this would be an error of fact, but one which was not material. Here, the sentencing judge wrongly referred to the victim as having required surgery. As Adamson JA points out, his Honour did so after having correctly referred to the applicant’s injuries. I accept there is significance in his Honour’s incorrect reference coming, as it did, in the context of assessing objective seriousness. Nonetheless, the question remains as to the relationship between that finding and the assessment of objective seriousness. A conclusion that the error was not material is not as obviously drawn as with the example I have given in relation to the applicant’s age. In circumstances where nothing else is known about an injury, that there was a need for surgery will be informative (without providing clarity). That is, absent any other information, the need for surgery suggests something beyond a trivial injury. Here, however, it was accepted that the injuries amounted to grievous bodily harm. In a context where the injuries had necessarily reached that threshold, whether surgery was or was not required was not informative of their seriousness. That is so for the reasons given by Adamson JA.

8. [81]

   In relation to ground 2, unlike Adamson JA, I would accept that the submission on behalf of the applicant in the court below, referring to “extra-curial punishment” was a reference to the applicant’s injuries. That is, to my mind, the most natural meaning of the submission in its context. I would not however, infer that the sentencing judge failed to take this matter into account. As Adamson JA has pointed out, the sentencing judge was aware of the applicant’s injuries, correctly referring to them in the course of his reasons. In circumstances where the submission was not developed in detail, or given particular emphasis, I would not infer that, having referred to the applicant’s injuries, they did not form part of the synthesis of the various relevant considerations taken into account by his Honour in arriving at the sentence ultimately imposed.

9. [82]

   The applicant has not established either of the errors complained of and the appeal must be dismissed.