McGonigle v R

1. [1]

   McCALLUM JA: I agree with Johnson J.

2. [2]

   JOHNSON J: By Notice of Application for Leave to Appeal filed on 19 December 2019, the Applicant, Mark McGonigle, seeks leave to appeal against an aggregate sentence imposed at the Lismore District Court on 24 June 2019 for offences of aggravated dangerous driving causing grievous bodily harm contrary to s.52A(4) Crimes Act 1900 and driving dangerously during a police pursuit contrary to s.51B(1) Crimes Act 1900.

The Aggregate Sentence

1. [3]

   Following pleas of guilty, the Applicant was sentenced by way of aggregate sentence to a term of imprisonment for four years and three months to date from 24 June 2019, with a non-parole period of two years and three months. The Applicant’s non-parole period will expire on 23 September 2021.

2. [4]

   The indicative sentences for the offences were as follows:

3. [5]

   The maximum penalty for an offence under s.52A(4) is 11 years’ imprisonment with the maximum penalty for a s.51B(1) offence being three years’ imprisonment.

4. [6]

   With respect to each offence, an automatic period of licence disqualification of three years applied with the disqualification period to commence upon the Applicant’s release from custody: s.206A Road Transport Act 2013; Gray v R [2018] NSWCCA 39 at [43]-[44].

Ground of Appeal

1. [7]

   The Applicant relies upon a single ground of appeal which asserts that the sentence imposed was manifestly excessive.

Facts of Offences

1. [8]

   A Statement of Agreed Facts signed by the Applicant was relied upon at the sentencing hearing. The following is drawn from that document.

2. [9]

   The Applicant and Lee Mullan are friends and both are citizens of the Republic of Ireland who, as at 3 November 2018, were living and working in Australia. They had travelled to Australia in May 2017. In November 2018, they were living in Maclean in northern New South Wales. At that time, the Applicant was 24 years old. Mr Mullan was 26 years old.

3. [10]

   The Applicant and Mr Mullan had been working on Friday, 2 November 2018. After work, they went for dinner at the Shores Tavern in Yamba. Mr Mullan drove the Applicant’s Toyota Camry sedan to that destination. The two men had dinner at about 8.00 pm that evening.

4. [11]

   After dinner, Mr Mullan drove the Toyota Camry to the Pacific Hotel in Yamba. During this journey, Mr Mullan was subjected to a random roadside breath test by police officers. Although the Statement of Agreed Facts is silent on the issue, it may be taken that Mr Mullan passed that test.

5. [12]

   At the Pacific Hotel, according to his later account to police, the Applicant consumed around three bottles of Strongbow cider and five or six vodka drinks mixed with “Mother” energy drink. The Applicant told police that his first drink was about 8.30 pm or 9.00 pm and his last drink was around midnight. Mr Mullan was also consuming alcohol at the hotel.

6. [13]

   In the early hours of Saturday, 3 November 2018, the Applicant drove his vehicle away from the Pacific Hotel with Mr Mullan in the front passenger seat. The Applicant intended to drive the vehicle to their home in Maclean.

7. [14]

   At about 1.00 am on 3 November 2018, the Applicant was driving on Yamba Street in Yamba when he veered onto the incorrect side of the road. He had been driving about 400 metres from the Pacific Hotel when this occurred. Police travelling in the opposite direction in a marked police vehicle had to swerve to avoid the Applicant’s vehicle. The Applicant swerved back onto the correct side of the road. The police vehicle made a three-point turn to follow the Applicant’s vehicle and the Applicant’s vehicle accelerated away.

8. [15]

   The Applicant turned left onto Wooli Road with the police vehicle following. Police activated the lights on the police vehicle. The Applicant’s vehicle was observed to overtake vehicles by crossing onto the incorrect side of the road against double unbroken lines. The Applicant was driving at a speed where police were unable to catch up to his vehicle.

9. [16]

   Police lost sight of the Applicant’s vehicle at the intersection of Yamba Road and Norfolk Road. At various times, police saw headlights in the distance which they inferred were from the Applicant’s vehicle and police continued to follow in that general direction.

10. [17]

    The Applicant was travelling on Yamba Road which provides for one lane of eastbound traffic and one lane of westbound traffic. The lanes are separated by painted centre lines. The speed limit for Yamba Road varies between 40 kilometres per hour (in a roadwork area), 50 kilometres per hour, 60 kilometres per hour and 70 kilometres per hour.

11. [18]

    The Applicant continued driving in a westerly direction, passing the Yamba Police Station and the Yamba BP Service Station. The Applicant’s vehicle was depicted on CCTV at both locations. The Applicant’s vehicle continued out of Yamba heading towards Palmers Island.

12. [19]

    At this time, Eric Lollback was driving his cane truck on Yamba Road towards Yamba. He observed the oncoming headlights of the Applicant’s vehicle, which he described as “flying” along the road towards him. Mr Lollback slowed his truck believing that the oncoming vehicle would not be able to handle the bend at the speed it was travelling. He came to a stop just before a bend in the road.

13. [20]

    As the Applicant’s vehicle approached Palmers Island, it entered into a left-hand bend. The Applicant lost control of his vehicle around this bend. The vehicle commenced to rotate in an anticlockwise direction as it continued moving along its path. The vehicle crossed onto the incorrect side of the roadway and collided with the Armco rail on the side of the road.

14. [21]

    This impact was depicted on CCTV at The Palmers Store. The vehicle scraped along the rail for about eight metres before going off the road, hitting a grass embankment and becoming airborne. The vehicle hit the ground and started to roll down an embankment. The vehicle rolled multiple times including over a row of trees, causing one of the trees to break and two trees to bend. The vehicle came to a stop in a macadamia plantation.

15. [22]

    The Applicant’s vehicle had travelled about 8.5 kilometres from the Pacific Hotel, Yamba to the collision site. He had driven at high speed for about 8.1 kilometres from the time when police commenced to pursue the Applicant’s vehicle.

16. [23]

    The Applicant’s vehicle stopped at a point approximately 72.5 metres west of the western alignment of Yamba Street and 28.7 metres north of the northern edge of Yamba Road. The vehicle finished in an upright position facing east.

17. [24]

    During the vehicle rollover, Mr Mullan was ejected from the vehicle, colliding with a macadamia tree which caused the tree strap and branch to break. Mr Mullan came to a rest approximately 39.5 metres west of the Applicant’s vehicle.

18. [25]

    Around this time, the owner of The Palmers Store Café, Marco Ustiani, approached Mr Lollback and advised him he had heard a noise. Mr Ustiani believed the noise to be a collision as there had been previous collisions at this site. Mr Ustiani heard a male voice yelling from a paddock near the macadamia trees. Mr Lollback and Mr Ustiani took torches and went towards the paddock. There, they located the Applicant’s vehicle in the paddock with the Applicant standing near the vehicle calling out “Lee”. Mr Lollback made arrangements for police to be notified.

19. [26]

    Police attended the scene and the Applicant identified himself as the driver of the vehicle. The Applicant was unable at this point to locate Mr Mullan. Police recorded their conversation with the Applicant, during which the Applicant said he had driven away from police as he had been drinking and he panicked. He stated that he believed that he was driving at between 100 to 110 kilometres per hour and that he was not familiar with the roads or the speed limits.

20. [27]

    Police located Mr Mullan lying unconscious and badly injured on the ground. An ambulance was requested and Mr Mullan was later airlifted to Princess Alexandra Hospital in Brisbane.

21. [28]

    The Applicant was taken to Maclean District Hospital for assessment where blood and urine samples were taken from him. The Applicant was released from hospital at about 4.00 am. The Applicant had suffered no major injuries as a result of the collision.

22. [29]

    Forensic examination of the Applicant’s vehicle at the scene ruled out other contributory causes to the collision.

23. [30]

    There was extensive damage to the Applicant’s vehicle including damage to a majority of the panels. The front windscreen was broken and the rear windscreen was completely broken out.

24. [31]

    The rear driver side wheel was detached and underneath the vehicle. The front passenger side tyre had poor tread depth and was deemed not to be roadworthy. The remaining tyres were considered roadworthy. The vehicle did not have airbags.

25. [32]

    Photographs of the vehicle tendered at the sentencing hearing depict the extent of the damage to the Applicant’s vehicle, reinforcing a view that both men were lucky to survive the collision. Two of these photographs are reproduced below:

26. [33]

    CCTV footage was obtained from the Yamba Police Station, the Yamba BP Service Station and The Palmers Store which depicted the Applicant’s vehicle as it passed each of these locations. Speed analysis was conducted using CCTV as well as tyre marks located at the scene of the collision.

27. [34]

    At 1.26 am, the Applicant drove past the Yamba Police Station at an approximate speed of 86 kilometres per hour in a 50 kilometres per hour area.

28. [35]

    At 1.27 am, the Applicant drove past the Yamba BP Service Station at an approximate speed of 108 kilometres per hour in a 50 kilometres per hour area.

29. [36]

    Soon after, the Applicant drove past The Palmers Store at a speed between 128 and 136 kilometres per hour. The CCTV footage captured the Applicant losing control of the vehicle and colliding with the Armco rail and then driving off the road. The speed limit in that area was 60 kilometres per hour.

30. [37]

    Speed analysis revealed that, at the time of passing between the Yamba Police Station and The Palmers Store, the Applicant was travelling at an average speed of approximately 139 kilometres per hour.

31. [38]

    Speed analysis was conducted on the yaw marks identified at the collision site. A yaw is the rotation of a vehicle about its vertical axis as it moves along its path. The analysis revealed that, at the time of tracking along the identified yaw mark, the Applicant’s vehicle was travelling at a calculated speed of approximately 136 kilometres per hour.

32. [39]

    Speed analysis was conducted using calculations to identify the airborne trajectory of the vehicle. The analysis revealed that, at the time the vehicle left the embankment, it was travelling at a speed of approximately 98 kilometres per hour. This speed was consistent with the vehicle having lost energy due to side slipping during the yaw sequence and the impact with the Armco rail.

33. [40]

    The average speed of the Applicant’s vehicle at the time of the collision was calculated to be approximately 136 kilometres per hour. The conclusion was reached, to a high degree of certainty, that at the time of the collision, the Applicant’s vehicle was travelling at a speed in the range of 128 to 136 kilometres per hour with the speed limit at the collision site being 60 kilometres per hour.

34. [41]

    Two blood samples taken from the Applicant were subjected to drug and alcohol analysis. A blood sample taken from the Applicant at 2.40 am on 3 November 2018 returned a reading of 0.151 grammes of alcohol in 100 millilitres of blood. The blood sample taken from the Applicant at 3.10 am on 3 November 2018 returned a reading of 0.138 grammes of alcohol in 100 millilitres of blood.

35. [42]

    A report from Dr Judith Perl, a clinical forensic pharmacologist, stated that at the time of the collision, the Applicant’s blood alcohol concentration was no less than 0.155 and no greater than 0.180 grammes of alcohol in 100 millilitres of blood. Dr Perl expressed the opinion that the Applicant’s ability to drive at the time of the collision would have been very substantially impaired by the effects of alcohol.

36. [43]

    Police at the collision scene observed the Applicant to struggle to control his fine motor skills as well as being sluggish in his movements, repetitive in his conversation and slurring his speech. Police considered the Applicant to be well affected by alcohol.

37. [44]

    Mr Lollback described the Applicant as being “drunk as a skunk”. Mr Ustiani, who had worked in licenced premises for 27 years, considered that the Applicant was well affected by alcohol.

38. [45]

    After being released from hospital, the Applicant was arrested and taken to Grafton Police Station where he participated in an electronically recorded interview.

39. [46]

    During the interview, the Applicant told police that when he saw blue lights coming from behind in Yamba, he panicked and drove faster because he knew that he had alcohol in his system and was trying to get closer to home in Maclean so that, if he did get pulled over, it would not be as far for him to walk. He admitted that his driving actions were not safe and that he was travelling at excessive speeds. He told police in this interview of the amount of alcohol which he consumed on the evening of 2 November 2018 (see [12] above).

40. [47]

    The Applicant told police that the reason for the crash was a “misjudgement”, which he explained as being that “the brakes had locked up causing the vehicle to slide”. He said that the reason that the vehicle left the road was “a lack of concentration”.

41. [48]

    It was during this interview that the Applicant told police that he and Mr Mullan had dined together in Yamba the previous evening and that, on the journey to the Shores Tavern, Mr Mullan had been breath tested by police.

42. [49]

    As noted, the Applicant was arrested on 3 November 2018. He was granted conditional bail that day and remained on bail until sentence was passed on 24 June 2019.

43. [50]

    As mentioned earlier, Mr Mullan was airlifted to the Princess Alexandra Hospital in Brisbane where he remained sedated and in an induced coma for four days.

44. [51]

    Mr Mullan’s injuries included a C1 fracture, L1 and L2 fractures, L2 and L3 transverse fractures (cervical spine injury), multiple rib fractures, right clavicle fracture, lung laceration, pneumothorax, coeliac trunk dissection (a tear to the artery that supplies the liver), liver contusion and numerous lacerations to the body and head.

45. [52]

    On 9 November 2018, Mr Mullan underwent surgery to support a “halo” brace. Pins were inserted into the skull to support a “halo” brace that is connected by bars to a body-worn vest. Mr Mullan was required to wear the brace as a result of spinal fractures, with the brace to be worn for a period of 12 weeks.

46. [53]

    Evidence tendered in the defence case on sentence related to Mr Mullan’s injuries and his level of recovery. Reports dated 4 June 2019 and 21 June 2019 from Dr John Pentis, a Brisbane orthopaedic surgeon, concerned Mr Mullan.

47. [54]

    Dr Pentis stated that Mr Mullan had worked in the family business as a stonemason in Ireland after leaving school. At the time of the collision in November 2018, Mr Mullan was working as a steel fixer, but had not been able to return to work by June 2019.

48. [55]

    Mr Mullan returned to Ireland in December 2018 and, by June 2019, was performing light work for the family business including grass cutting. Mr Mullan had played soccer in the past, but had not returned to this sporting activity. Dr Pentis noted that “It will be trial and error from now on” for the purpose of determining activities which Mr Mullan can carry out.

49. [56]

    Dr Pentis noted Mr Mullan’s past work as a stonemason and a steel fixer. He observed that these are quite vigorous occupations and that, with time, work of that type would cause degenerative problems for Mr Mullan’s spine and limbs. Dr Pentis considered that Mr Mullan would have to change to employment involving lighter duties.

50. [57]

    Mr Mullan made a statutory declaration dated 20 June 2019 which was tendered at the sentencing hearing. There, Mr Mullan stated that the Applicant was and remained a good friend of his and that he held no grudge against the Applicant. Mr Mullan stated that he believed he was recovering adequately “as well as can be expected”.

The Applicant’s Subjective Circumstances

1. [58]

   The Applicant was born in July 1994 and was 24 years old at the time of the offences. He was almost 25 years of age at the time of sentence.

2. [59]

   The Applicant has no prior criminal history in Australia, Ireland or elsewhere.

3. [60]

   The Applicant came to Australia with Mr Mullan in May 2017 for the purpose of a working holiday.

4. [61]

   The Applicant had an Irish driver’s licence and obtained a Queensland driver’s licence in November 2017. The Applicant’s traffic record in Australia contained four speeding infringements between May and September 2017 in New South Wales and Queensland.

5. [62]

   A report of Dr Ian Katz, a consultant psychiatrist, dated 18 March 2019 was tendered in the defence case on sentence. Dr Katz considered that the Applicant probably fulfilled the criteria for an adjustment disorder with anxious and depressed moods as at March 2019, with likely features consistent with a transient post-traumatic stress disorder and major depressive disorder in proximity to the accident.

6. [63]

   Also tendered in the defence case on sentence were statutory declarations from Pauline Mullan (Mr Mullan’s mother), Megan Gillen (a friend of the Applicant), Aggie McGonigle and Patrick McGonigle (the Applicant’s parents) and the Applicant’s brother and sister. A favourable reference was also tendered from the Applicant’s employer in Australia at the time of the offences.

7. [64]

   The Applicant gave evidence at the sentencing hearing. He stated that he had a girlfriend in Ireland and that his plan had been to return to Ireland to complete the construction of a house where he proposed to live.

8. [65]

   The Applicant spoke of his close friendship with Mr Mullan and his concern and regret with respect to the injuries Mr Mullan sustained as a result of the offences.

9. [66]

   In cross-examination by the Crown, the Applicant acknowledged that he was “very aware of the obligation not to drive whilst intoxicated” as a result of Mr Mullan being breath tested on the evening of 2 November 2018 (T14, 24 June 2019). The Applicant acknowledged that he was “trying to get away from the police” as he drove away from Yamba and that he realised how dangerous it was for other road users.

10. [67]

    The Applicant said that he expected to be deported from Australia to Ireland when released from custody.

The Sentencing Remarks

1. [68]

   Following the sentencing hearing on 24 June 2019, her Honour Judge Wells SC sentenced the Applicant later that day in ex tempore sentencing remarks. It is appropriate to refer to parts of those remarks.

2. [69]

   Her Honour outlined the facts of the offences by reference to the Statement of Agreed Facts and CCTV footage which had been played at the sentencing hearing. Her Honour described parts of the factual narrative which were supplemented by the CCTV footage, which constituted graphic evidence of the Applicant’s course of driving. Her Honour said (ROS2-3):

3. [70]

   The sentencing Judge noted the Applicant’s explanation to police that he panicked after seeing the police vehicle. As mentioned earlier, the Statement of Agreed Facts had noted that the Applicant’s vehicle had travelled approximately 8.5 kilometres from the Pacific Hotel Yamba to the collision site, with this including a distance of approximately 8.1 kilometres from the point where the Applicant almost collided with the police vehicle which then pursued the Applicant’s vehicle. The sentencing Judge observed that the Applicant “certainly panicked for a considerable period of time over the eight and a half kilometre journey” (ROS4).

4. [71]

   Photographs of the Applicant’s vehicle sitting in the macadamia plantation were tendered on sentence. Her Honour observed that, “As is obvious from the photos that were tendered, it suffered major damage from rolling over at speed” (ROS4).

5. [72]

   An understanding of the force and impact of the collision is assisted from the photographs of the Applicant’s vehicle reproduced earlier in this judgment. Consideration of the photographs supports the view that both the Applicant and Mr Mullan were lucky to survive the collision and that it was fortunate indeed that the Applicant was effectively uninjured with Mr Mullan suffering very substantial injuries from which he has made a considerable, but incomplete, recovery.

6. [73]

   Her Honour outlined the injuries to Mr Mullan observing (ROS7):

7. [74]

   Her Honour recounted aspects of the Applicant’s subjective case including the report or Dr Katz and references and other character evidence adduced on his behalf. Her Honour stated (ROS10-11):

8. [75]

   The sentencing Judge observed that the offence was to be regarded as “a serious crime” (ROS11). Her Honour turned to consider the objective gravity of the offence and the degree of the Applicant’s moral culpability or blameworthiness having regard to the guideline judgment in R v Whyte (2002) 55 NSWLR 252; [2002] NSWCCA 343 at [204]-[234]. Her Honour said (ROS11-13):

9. [76]

   Her Honour found a high degree of moral culpability on the Applicant’s behalf (ROS13):

10. [77]

    The sentencing Judge then turned to the Applicant’s subjective case (ROS13-14):

11. [78]

    Her Honour allowed a 25% discount for the Applicant’s pleas of guilty (ROS14). The sentencing Judge had regard to the Applicant’s degree of despair and depression and the element of self-punishment (ROS15):

12. [79]

    Her Honour referred to further aggravating features of the case (ROS15-16):

13. [80]

    The sentencing Judge concluded that full-time imprisonment was the only appropriate sentence (ROS16):

14. [81]

    A finding of special circumstances was made with the sentencing Judge referring to the Applicant’s psychological condition and noting that “will make his time in custody somewhat more difficult than other prisoners” as well as his relatively young age (ROS16).

15. [82]

    Her Honour determined that some degree of notional accumulation was required because of the separate offences and then noted the indicative sentences before imposition of the aggregate sentence referred to earlier in this judgment.

The Sole Ground of Appeal - The Aggregate Sentence was Manifestly Excessive

1. [83]

   Mr Averre, counsel for the Applicant, submitted that the aggregate sentence in this case was manifestly excessive by reference to the component of that sentence referable to the s.52A(4) offence. He submitted that the indicative sentence for this offence was erroneous so that the Court should find that the aggregate sentence itself was manifestly excessive: JM v R (2014) 246 A Crim R 528; [2014] NSWCCA 297 at [40](11).

2. [84]

   Counsel made submissions by reference to the guideline judgment in R v Whyte, submitting that the Applicant’s prescribed concentration of alcohol was not far above the prescribed reading of 0.15 contained in s.52A(7)(a) (as defined in s.52A(9)) as a statutory aggravating circumstance. It was acknowledged that a further aggravating circumstance existed in this case being the fact that the Applicant was driving at a speed which exceeded the speed limit by more than 45 kilometres per hour for the purpose of s.52A(7)(b) of the Act.

3. [85]

   No challenge was made to her Honour’s finding that there was a high degree of moral culpability in this case.

4. [86]

   Counsel for the Applicant challenged a starting point (before application of the 25% discount) of five years’ imprisonment for the s.52A(4) offence given the prescribed concentration of alcohol in this case, the finding of the sentencing Judge that Mr Mullan’s injuries did not fall into the more serious range for injuries, the fact that Mr Mullan was not a stranger and the Applicant’s very powerful subjective case, including his prior good character, deep remorse and good prospects of rehabilitation. It was submitted that a starting point of five years’ imprisonment for the s.52A(4) offence was unjust and unreasonable in all of the circumstances of the case.

5. [87]

   Counsel for the Applicant relied upon sentencing statistics in support of this submission. Whilst acknowledging the limitations upon sentencing statistics, it was argued that the information may still provide assistance in determining whether the sentence was manifestly excessive. The Applicant’s written submissions referred to statistics for s.52A(4) offences in different periods, with reference being made as well to a number of decisions on sentence for this class of offence.

6. [88]

   It was submitted that the Court should conclude from the statistical information that, from the period before sentencing reforms made in September 2018, in just under 12% of cases had a higher sentence been imposed than the indicated sentence for the Applicant’s s.52A(4) offence with lower sentences being imposed in some 80% of cases. The Applicant has the highest sentence for a s.52A(4) offence committed since the sentencing reforms made in September 2018.

7. [89]

   Counsel for the Applicant also referred to a number of other sentencing decisions in support of a submission that the indicative sentence for the s.52A(4) offence was manifestly excessive. In this regard, reference was made to decisions including Brookes v R [2009] NSWCCA 265, R v Kyle [2014] NSWCCA 300, R v Tuhakaraina [2016] NSWCCA 81, Vale v R [2016] NSWCCA 154, Priovolidis v R [2016] NSWCCA 201, Ul-Hassan v R [2018] NSWCCA 177, Reddy v R [2018] NSWCCA 212, Lawson v R [2018] NSWCCA 215 and a number of District Court sentencing decisions.

8. [90]

   It was submitted that an examination of these sentencing decisions supported the Applicant’s contention that the indicative sentence for the s.52A(4) offence in this case was manifestly excessive such that a conclusion should be reached that the aggregate sentence itself was manifestly excessive.

9. [91]

   The Crown submitted that on an appeal against an aggregate sentence, the principal focus in determining whether the sentence was manifestly excessive is whether the aggregate sentence reflects the total criminality of the offences: XZ v R [2018] NSWCCA 76 at [62]. It was acknowledged that although an indicative sentence itself is not amenable to appeal, it may be a guide as to whether error is established in relation to the aggregate sentence: JM v R at [40].

10. [92]

    Contrary to the Applicant’s submissions, the Crown submitted that neither the indicative sentence for the s.52A(4) offence nor the aggregate sentence was unreasonable or plainly unjust so as to constitute a manifestly excessive sentence. The Crown pointed to the following features in support of this submission:

11. [93]

    When these considerations are taken into account, the Crown submitted that the indicative sentence for the s.52A(4) offence was not unreasonable or plainly unjust. As a degree of notional accumulation was appropriate to reflect the separate criminality of the s.51B police pursuit offence, it was submitted that the aggregate sentence was not manifestly excessive.

12. [94]

    To the extent that the Applicant sought to rely upon the guideline judgment in R v Whyte, the Crown submitted that the s.52A(4) offence was an aggravated offence which required an appropriate increment to reflect the higher maximum penalty and higher level of moral culpability in the Applicant’s case: R v Whyte at [231].

13. [95]

    The Crown submitted that caution must be exercised in the use of statistics in support of a sentence appeal. It was submitted that the fact that a sentence may fall towards the top of a statistical range is not determinative of manifest excess: Owen v R [2017] NSWCCA 54 at [76]. It was submitted that the very serious circumstances of the present offence serve to explain why a substantial indicative sentence was nominated for the s.52A(4) offence in this case.

14. [96]

    The Crown submitted that sentencing statistics did not provide assistance to the Applicant in support of this ground of appeal.

15. [97]

    With respect to the Applicant’s reliance upon comparative cases, the Crown noted the limitations upon the use of comparative cases in support of a ground alleging manifest excess: Vandeventer v R [2013] NSWCCA 33 at [45].

16. [98]

    To the extent that the comparative cases relied upon by the Applicant are said to provide some guidance, the Crown submitted that they tend to suggest that the indicative sentence for the s.52A(4) offence was within an appropriate range. The Crown submissions addressed particular features of the comparative cases relied upon by the Applicant in support of this submission.

17. [99]

    The Crown submitted that the Applicant had not established that the indicative sentence for the s.52A(4) offence was manifestly excessive either by reference to the guideline judgment in R v Whyte or the statistics and comparative cases upon which he relies. The Crown noted that the Applicant did not contend that the indicative sentence for the s.51B(1) offence was excessive.

18. [100]

    It was submitted that a degree of notional accumulation was required and that no challenge is made by the Applicant to the notional period of accumulation of six months utilised in fixing the aggregate sentence.

19. [101]

    The Crown noted that a finding of special circumstances had been made with a very generous ratio being utilised with the non-parole period constituting 52.9% of the total sentence.

20. [102]

    The Crown submitted that the objective gravity of the offences was substantial and the Applicant’s moral culpability was high. It was important, as the sentencing Judge recognised, that the Applicant’s strong subjective case not lead to inadequate weight being given to the objective gravity of the offences.

21. [103]

    The Crown submitted that the Applicant had not demonstrated that the aggregate sentence was manifestly excessive.

22. [104]

    It is necessary to keep in mind the approach to be taken by this Court in determining a ground of appeal which asserts that a sentence is manifestly excessive.

23. [105]

    In Obeid v R (2017) 96 NSWLR 155 at 241; [2017] NSWCCA 221, this Court said at [443]:

24. [106]

    It is open to the Applicant to contend that the indicative sentence for the s.52A(4) offence is manifestly excessive in support of an argument that the aggregate sentence itself is erroneous. However, on an appeal against an aggregate sentence, the principal focus of a ground alleging manifest excess will be whether the aggregate sentence reflects the total criminality of the offences: XZ v R at [62].

25. [107]

    As the extracts from the sentencing remarks set out earlier demonstrate, the sentencing Judge outlined succinctly and accurately the factors which bore upon sentence in this case. The aspects of the s.52A(4) offence referred to by the Crown (see [92] above), emphasise the gravity of the Applicant’s offence and the high degree of moral culpability involved in it.

26. [108]

    In addition, the Applicant was on notice that evening of the particular need to guard against driving after consuming alcohol. Just hours earlier, Mr Mullan had been subjected to a roadside breath test and had apparently passed. Far from taking note of this particular warning or reminder of the need to comply with the law, the Applicant then consumed a considerable amount of alcohol before setting off behind the steering wheel of his vehicle, on the journey from Yamba to Maclean. It is clear that the Applicant was well affected by alcohol at that time.

27. [109]

    A short way into the journey, the Applicant was confronted with the reality of his circumstances when he almost collided with a police vehicle which then took pursuit after his vehicle. Rather than pulling over and facing the consequences of his actions, the Applicant set off at a great speed on a rural road placing other members of the public at risk as well as his friend, Mr Mullan.

28. [110]

    It is pertinent to note the circumstances of aggravation which can render a s.52A(3) offence of dangerous driving occasioning grievous bodily harm (punishable by imprisonment for seven years), an offence of aggravated dangerous driving occasioning grievous bodily harm under s.52A(4) (punishable by imprisonment for 11 years). Section 52A(7) specifies the circumstances of aggravation:

29. [111]

    The circumstance of aggravation relied upon in the charge against the Applicant was that contained in s.52A(7)(a) in that the prescribed concentration of alcohol was present in his breath or blood. In this respect, s.52A(9) defines “prescribed concentration of alcohol” as “a concentration of 0.15 grammes or more of alcohol in 210 litres of breath or 100 millilitres of blood”.

30. [112]

    As noted earlier (at [41]-[42]), the Applicant returned a reading of 0.151 at 2.40 am on 3 November 2018. The expert opinion of Dr Perl was that the Applicant’s blood alcohol concentration at the time of the collision was between 0.155 and 0.180 grammes of alcohol in 100 millilitres of blood. The evidence of persons who observed the Applicant after the collision described him as being well affected by alcohol.

31. [113]

    A further circumstance of aggravation in this case, which the Court was entitled to take into account, was that referred to in s.52A(7)(b) being the fact that the Applicant was driving the vehicle on a road at a speed which exceeded the speed limit by more than 45 kilometres per hour. The Applicant’s very high speed on a rural road was mentioned earlier in this judgment (at [33]-[40]), with the speed at the time of the collision being in the range of 128 to 136 kilometres per hour in a 60 kilometres per hour area. This aspect was an especially aggravating feature of the offence.

32. [114]

    It will be noted that a further statutory aggravating factor in s.52A(7)(c) is that the person was driving a vehicle to escape pursuit by a police officer. That factor did exist in this case, but was addressed by the separate s.51B(1) offence. As her Honour recognised, this aspect could not be double counted against the Applicant by use of it as a statutory aggravating factor for the s.52A(4) offence.

33. [115]

    However, in determining the aggregate sentence, the separate s.51B(1) offence was to be taken into account in a manner which emphasised the particular gravity of the Applicant’s total criminality arising from these events.

34. [116]

    As noted earlier, the description of the Applicant’s course of driving, and the movement of the vehicle from the time it left the road until it reached its resting place, emphasises the good fortune of the Applicant and Mr Mullan that the two men did not die in this incident. This observation is fortified by the photographs of the wreckage of the Applicant’s vehicle reproduced earlier in this judgment.

35. [117]

    Despite being thrown some 40 metres from the vehicle, Mr Mullan survived although sustaining very serious injuries. The fact that Mr Mullan has made a substantial recovery from these injuries is fortunate for him and the Applicant. However, Mr Mullan, who was only 26 years old at the time of this incident, has sustained permanent injury which will restrict his capacity to work in areas in which he did in the past, including the family stonemason business in Ireland. The sentencing Judge had proper regard to the extent of the injuries to Mr Mullan in determining sentence in this case.

36. [118]

    The Applicant is not assisted by reference to the guideline judgment in R v Whyte for a basic s.52A(3) offence. In nominating an indicative sentence for the s.52A(4) offence, it was necessary, as her Honour observed, that an appropriate increment be allowed to reflect the higher maximum penalty and the higher level of moral culpability involved in that offence: R v Whyte at [231].

37. [119]

    As the sentencing Judge recognised, the Applicant had a strong subjective case on sentence. He had no prior convictions although he had a number of speeding offences committed in Australia in the months prior to the present offences. Other aspects of the Applicant’s subjective case are not unusual features when Courts sentence for offences of this type.

38. [120]

    Her Honour had proper regard to the Applicant’s remorse and the concern which he had expressed for the injuries caused to his friend, Mr Mullan, arising from these offences. The fact that Mr Mullan bears no grudge towards the Applicant was not relevant to the determination of sentence as the attitude of the victim, whether forgiveness or vengeance, should play no part on sentence: R v Palu (2002) 134 A Crim R 174; [2002] NSWCCA 381 at [37].

39. [121]

    In R v Whyte, Spigelman CJ referred (at [157]-[158], [233]) to the need for reasonable proportionality between a sentence and the circumstances of the crime by reference to the objective gravity of the offence, citing R v Dodd (1991) 57 A Crim R 349 at 354.

40. [122]

    As the Court (Gleeson CJ, Lee CJ at CL and Hunt J) observed in R v Dodd at 354, the “relative importance of the objective facts and subjective features of a case will vary” and “there is sometimes a risk that attention to persuasive subjective considerations may cause inadequate weight to be given to the objective circumstances of the case” contrary to the requirement for reasonable proportionality between a sentence and the circumstances of the crime. This principle was emphasised in R v Whyte and was applied by the sentencing Judge in this case in an appropriate fashion.

41. [123]

    The Applicant is not assisted, in support of this ground of appeal, by reference to sentencing statistics. As counsel for the Applicant acknowledged, there is limited information provided in the statistical data with respect to objective seriousness, the subjective circumstances of offenders, the presence or absence of aggravating and mitigating factors, prospects of rehabilitation or remorse for the offending.

42. [124]

    Having considered the statistical information placed before the Court, I do not think it advances the Applicant’s case. The fact that the Applicant’s sentence falls towards the top of a statistical range is explained by the objective gravity of his offending which was to be reflected in a reasonably proportionate sentence in accordance with sentencing principles.

43. [125]

    It is appropriate to say something about the comparative cases relied upon by the Applicant. Counsel for the Applicant submitted that some assistance may be gleaned from these decisions although he acknowledged the limitations expressed concerning this class of material in a sentencing appeal.

44. [126]

    In The Queen v Pham (2015) 256 CLR 550; [2015] HCA 39 at [50], Bell and Gageler JJ said that “comparable cases decided by intermediate courts of appeal provide the most useful guidance to a sentencing judge” and that those “reasons reveal the mix of factors that were taken into account and will usually involve consideration of the appropriateness of the sentence imposed at first instance”.

45. [127]

    In Director of Public Prosecutions (Vic) v Dalgliesh (a Pseudonym) (2017) 262 CLR 428; [2017] HCA 41, Gageler and Gordon JJ said at [83] (footnotes omitted):

46. [128]

    With those principles in mind, I will consider the cases relied upon by the Applicant.

47. [129]

    In Reddy v R, the 32-year old offender pleaded guilty to a single offence under s.52A(4) and was sentenced to a term of three years and five months’ imprisonment with a non-parole period of two years. The circumstance of aggravation was driving with a blood alcohol concentration of 0.27. The offender was travelling at speed and collided with a vehicle, causing injury to the victim by way of fractures to the vertebrae and ribs. On appeal, this Court observed (at [39]) that, bearing in mind the principle of proportionality, a sterner sentence would have been justified were it not for the offender’s “compelling subjective case”. Because of a failure to backdate the sentence to allow for a period of quasi-custody, the sentence was confirmed but backdated.

48. [130]

    Although the offender in Reddy v R had a higher blood alcohol level than the Applicant, the offence did not involve a second aggravating circumstance of exceeding the speed limit by more than 45 kilometres per hour. Further, unlike Mr Mullan, the facts do not record that the victim ceased to work in her occupation following her injuries. In addition, there was no further warning sign in that case such as occurred here when the Applicant observed Mr Mullan being breath tested some hours before the commission of the offences.

49. [131]

    In Lawson v R, the 20-year old offender pleaded guilty to one offence under s.52A(4) and a further offence of failing to stop to give assistance under s.52AB(2) Crimes Act 1900. An indicative term of three years and six months’ imprisonment was specified in relation to the s.52A(4) offence as part of an aggregate sentence of imprisonment for four years with a non-parole period of two years and six months. The circumstance of aggravation was driving at a speed more than 45 kilometres above the speed limit. The victim suffered significant injuries including facial and arm injuries and brain injury causing some memory loss and some diminution of cognitive function. On appeal, this Court observed (at [42]-[43]) that, but for reduction of the offender’s moral culpability on account of mental illness, the objective seriousness of the s.52A(4) offence would have been “well above the mid-range” so that “a sentence considerably longer than three years and six months would have been called for”. This sentence was upheld on appeal.

50. [132]

    The victim in Lawson v R suffered more serious injuries than Mr Mullan. However, unlike the Applicant, the offender was not intoxicated by alcohol at the time of the offence. Additionally, the offender was suffering from paranoid schizophrenia which was found to have materially contributed to his offending, thereby reducing his moral culpability and making his case a less appropriate vehicle for general deterrence.

51. [133]

    In Ul-Hassan v R, the 24-year old offender pleaded guilty to three offences under s.52A(4), with a further offence of driving with the mid-range prescribed concentration of alcohol placed on a certificate under s.166 Criminal Procedure Act 1986. He was sentenced by way of an aggregate sentence of imprisonment for six years with a non-parole period of three years. On appeal, the offender was resentenced to an aggregate term of five years’ imprisonment with a non-parole period of two years and six months. An indicative term of two years and six months’ imprisonment was nominated for each of the s.52A(4) offences. The circumstance of aggravation was travelling at more than 45 kilometres at the time of the collision. Each victim sustained multiple fractures.

52. [134]

    Although affected by alcohol, the offender in Ul-Hassan v R had less than the prescribed concentration of alcohol in his blood at the time of the collision. On resentence, the offender tendered evidence that each of the victims had fully recovered. He had also made monetary payments on their behalf and assisted them in obtaining employment which was found to be a form of extra-curial punishment.

53. [135]

    In R v Tuhakaraina, the 48-year old offender pleaded guilty to a single offence under s.52A(4) and was sentenced to two years and six months’ imprisonment with a non-parole period of six months. The circumstance of aggravation was driving with a blood alcohol concentration of between 0.187 and 0.207. The victim sustained significant injuries including fractures with likely lifelong functioning impairment.

54. [136]

    On a Crown appeal in R v Tuhakaraina, the Court declined to intervene but the Court observed (at [98]) that the head sentence could be regarded as “very lenient” and that a “considerably higher non-parole period” was warranted. Additionally, whilst the offender had a higher blood alcohol level than the present Applicant, the offence did not involve a second aggravating circumstance of exceeding the speed limit by more than 45 kilometres per hour.

55. [137]

    In Brookes v R, the offender pleaded guilty to two offences under s.52A(4). He was sentenced to a total term of three years and six months’ imprisonment with a non-parole period of two years. Individual terms of three years were fixed for each of the two s.52A(4) offences. The circumstance of aggravation was driving with a blood alcohol concentration of 0.162. Those sentences were upheld on appeal. The injuries sustained by the two victims are not detailed in the judgment. The offender had a worse subjective case than the Applicant due to his criminal history, but his offences did not involve a second aggravating circumstance of exceeding the speed limit by more than 45 kilometres per hour.

56. [138]

    In R v Kyle, the 27-year old offender pleaded guilty to a single s.52A(4) offence. At the time of the collision, which caused permanent disabling injuries to the victim, the offender had a blood alcohol concentration alcohol of 0.206. There was no second aggravating circumstance of speeding nor did the offence involve a police pursuit. The offender had no prior criminal history. The offender was sentenced in the District Court to imprisonment for three years with a non-parole period of one year and nine months. On a Crown appeal, the sentence was increased to imprisonment for four years and six months with a non-parole period of two years and nine months.

57. [139]

    In Priovolidis v R, the 45-year old offender pleaded guilty to one s.52A(4) offence and one s.51B(1) offence. A collision occurred during a police pursuit when the offender, whilst travelling at speed, crossed onto the wrong side of the road and collided with another vehicle, causing the 72-year old victim’s vehicle to become airborne. Substantial injuries were caused to the victim. The circumstance of aggravation was the fact that the offender was driving to escape pursuit by a police officer. The offender had a criminal history which disentitled him to any leniency. A finding was made that he was genuinely remorseful. A sentence of six years’ imprisonment with a three-year non-parole period was fixed for the s.52A(4) offence and a sentence of imprisonment for two years and six months for the s.51B(1) offence. The overall sentence comprised imprisonment for six years and six months with a non-parole period of three years and six months. An appeal against sentence was dismissed. Unlike the Applicant’s offence, the offender in this case was not driving with the prescribed concentration of alcohol.

58. [140]

    In Vale v R, the 40-year old offender pleaded guilty to a single offence under s.52A(4) and a single offence under s.51B(1). The offender drove a vehicle at high speed during a police pursuit and lost control and crashed into a tree with substantial injuries being caused to a 17-month old child who was in the vehicle. The offender had an extensive criminal history and was on parole at the time of the offences. For the s.52A(4) offence, the offender was sentenced to imprisonment for six years with a non-parole period of three years with an entirely concurrent fixed term of imprisonment of three years for the s.51B(1) offence. An appeal against sentence was dismissed by this Court. Unlike the Applicant’s offence, the offender in that case was not driving with the prescribed concentration of alcohol.

59. [141]

    In addition to these decisions of this Court, reference was made as well to a number of District Court sentencing decisions which I have also considered, being R v Innes [2009] NSWDC 345; R v Coffee [2010] NSWDC 261; R v Glover [2011] NSWDC 65; R v MacPherson [2017] NSWDC 170 and R v Reay [2018] NSWDC 386. It is sufficient to observe that none of these cases involved the combination of two aggravating factors under s.52A(7), let alone engagement in a police pursuit as part of the total criminality involved in the case.

60. [142]

    In my view, consideration of the sentencing decisions relied upon by the Applicant does not demonstrate that the indicative sentence for the s.52A(4) offence in this case fell outside the available range of sentence. The Applicant’s offence involved driving whilst significantly affected by alcohol (with a concentration above the statutory prescribed concentration of alcohol) and at very high speeds over an extended distance. He was driving in this way after having observed Mr Mullan being breath tested a few hours before, an event which apparently did not deter him or make him think twice about the wisdom or lawfulness of driving a motor vehicle whilst intoxicated.

61. [143]

    In addition, the Applicant was driving in this fashion when being pursued by police. Although this was not a separate statutory aggravating factor for the purpose of the s.52A(4) offence, it formed part of the Applicant’s total criminality by reference to the s.51B(1) offence to be reflected in the aggregate sentence.

62. [144]

    The gathering of aggravating circumstances in this case was unusual and operated adversely to the Applicant on sentence. Consideration of other sentencing cases does not support the Applicant in his claim of manifest excess.

63. [145]

    To succeed on this ground of appeal, it is necessary for the Applicant to demonstrate that the aggregate sentence was unreasonable or plainly unjust: Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25].

64. [146]

    In my view, the sentencing Judge considered all factors relevant to the sentencing of the Applicant in a balanced and measured way before fixing an aggregate sentence and nominating indicative sentences which were open and appropriate in the circumstances of the case.

65. [147]

    Her Honour had proper regard to the Applicant’s strong subjective case and fixed a sentence which was reasonably proportionate to the objective gravity of the Applicant’s total criminality. The Applicant has not demonstrated that the sentence was manifestly excessive.

66. [148]

    I propose that leave to appeal against sentence be granted, but that the appeal be dismissed.

67. [149]

    ADAMSON J: I agree with Johnson J.