R v Russell

1. [1]

   KIRK JA: I agree with McNaughton J.

2. [2]

   N ADAMS J: I agree with McNaughton J.

3. [3]

   MCNAUGHTON J: The Director of Public Prosecutions (NSW) (“the appellant”) has appealed against the sentence imposed on Stephen George Russell (“the respondent”) by her Honour Judge Payne (“the sentencing judge”) in the District Court at Tamworth on 5 May 2022 following a trial by jury.1 The respondent was sentenced to an aggregate sentence of 4 years imprisonment with a non-parole period of 2 years for three offences arising from the respondent’s dangerous driving occasioning the deaths of two people and the grievous bodily harm of a third person. The aggregate sentence commenced on 5 May 2022.

4. [4]

   Tragically, the people killed were the respondent’s wife of over 30 years, Lynette Russell, and the respondent’s stepson, Steven Russell. The person grievously harmed was Steven Russell’s partner, Lisa Willis.

5. [5]

   The details of the charges, the maximum penalties and the indicative sentences provided by the sentencing judge are as follows:

   1. (1)

      Dangerous driving occasioning the death of Lynette Russell (pursuant to s 52A(1)(c) of the Crimes Act 1900 (NSW)) carries a maximum penalty of 10 years imprisonment. The indicative sentence provided by the sentencing judge was 2 years and 6 months;

   2. (2)

      Dangerous driving occasioning the death of Steven Russell (pursuant to s 52A(1)(c) of the Crimes Act), carries a maximum penalty of 10 years imprisonment. The indicative sentence provided by the sentencing judge was also 2 years and 6 months;

   3. (3)

      Dangerous driving occasioning the grievous bodily harm of Lisa Willis (pursuant to s 52A(3)(c) of the Crimes Act) carries a maximum penalty of 7 years imprisonment. The indicative sentence provided by the sentencing judge was 1 year and 9 months.

6. [6]

   The respondent was also disqualified from driving for three years.

7. [7]

   The appellant relies on two grounds of appeal as follows:

   1. (1)

      That the sentencing judge erred in her assessment of the length of the journey during which others were exposed to risk;

   2. (2)

      That the sentence imposed is manifestly inadequate.

8. [8]

   The respondent concedes the first ground is made out but argues (even with that concession having been made) that the final sentence, whilst merciful, is not manifestly inadequate. I am of the view for the reasons that follow that both grounds have been made out, that the appeal should be allowed, and the respondent’s sentence should be increased. The orders I propose are at the conclusion of my reasons.

Trial

1. [9]

   The trial commenced on 22 February 2022 and concluded on 10 March 2022. The jury deliberated for approximately one hour in total. In addition to the three counts in relation to which the respondent was found guilty, there was a fourth count for which he was found not guilty. That was an allegation that he intended to pervert the course of justice by telling Lisa Willis to withhold information she intended to give to police in relation to the collision (pursuant to s 319 of the Crimes Act).

Facts

1. [10]

   At the sentence proceedings, the appellant tendered an agreed statement of facts which the sentencing judge reproduced in her judgment, and no issue is taken with this account.

2. [11]

   In summary, the collision occurred on 3 January 2019 at Yarrowitch in the course of the respondent driving himself and some family members (Lynette Russell, Steven Russell and Lisa Willis) who were moving from Tamworth to Wauchope (near Port Macquarie). The respondent was driving his Toyota Prado and towing an overloaded Jayco Heritage caravan which was essentially being utilised as a removalist truck. He was responsible for overloading the caravan, having supervised and directed Lisa Willis and her partner Steven Russell in its loading.

3. [12]

   The maximum specified weight of the caravan and its contents was 2,387 kilograms. Following the collision, the caravan and contents were weighed at 3,200 kilograms. The caravan was therefore overloaded by 813 kilograms. The Toyota Prado was also loaded with items for the move and had a silver Quintrex aluminium boat on its roof. The weight of the caravan also exceeded the maximum tow ball load, the maximum dual axle loading and the maximum tyre load.

4. [13]

   On the day of the collision, the respondent and his passengers left Tamworth to drive to Wauchope, a distance of approximately 250 kilometres. The respondent drove from Tamworth along the Oxley Highway to Walcha where they stopped for a short break before continuing. Lisa Willis gave evidence at the trial that the vehicle was sluggish and had no power going up the hills and had to shift into first gear to go up the hills.

5. [14]

   After the break at Walcha, the respondent continued to drive the vehicle towing the overloaded caravan. About 42 kilometres past Walcha, the respondent towing the overloaded caravan started to descend down a hill into the Yarrowitch Valley. The respondent told a police officer at the scene that he was

6. [15]

   The weight of the caravan pushed against the rear of the vehicle and caused the vehicle to rotate in an anti-clockwise direction. The caravan rolled and the hitch receiver which connected the caravan to the vehicle broke. The caravan detached from the vehicle, slid in an easterly direction along the Oxley Highway and collided with a guard rail on the northern side of the road. It was substantially damaged with the chassis and contents being strewn across the road and into the gully on the north side of the road. The vehicle left the road and collided with the wire barrier causing the vehicle to roll over. The boat and roof of the vehicle on the passenger side impacted a large tree just off the roadway, causing the boat to detach and the roof to collapse. The vehicle bounced off the tree and landed right side up on an embankment below the tree.

7. [16]

   An examination of the tyre scuff marks on the road showed that the caravan began to sway side to side. The swaying increased in intensity and became more violent. The scuff marks showed that when the caravan was swaying from side to side it crossed to the incorrect side of the road. The respondent lost control of the vehicle causing the collision. The respondent had travelled a distance of about 130 kilometres towing the overloaded caravan before the collision.

8. [17]

   The vehicle and the caravan were inspected for mechanical faults and defects which may have been a contributing factor toward the collision, but none were found. The electric brakes of the caravan were tested and found to be operational.

Sentencing proceedings

1. [18]

   The proceedings on sentence were heard on 4 and 5 May 2022. The sentence bundle tendered by the appellant included the agreed facts; the respondent’s criminal history and traffic record; the facts for a prior driving offence from 2012; and victim impact statements from Lisa Willis and family members of Lynette Russell and Steven Russell, together with a table outlining the familial relationships. The appellant also tendered a sentencing assessment report and provided written submissions.

2. [19]

   The respondent read an affidavit in which he described his background, family history, criminal history, medical conditions, and matters following the offence. Various medical documents were annexed.

3. [20]

   The respondent’s affidavit included the following in relation to the collision:

4. [21]

   The affidavit also contained information about his criminal history which included larceny and driving offences, the latter of which involved driving a vehicle recklessly, furiously, or at a speed or manner dangerous to the public on 18 October 2012. In relation to this he stated he was:

5. [22]

   The respondent also gave short oral evidence, confirming the matters in his affidavit. He also confirmed that he accepted the jury’s verdict, and accepted responsibility for what occurred. He also confirmed that he had set out in his affidavit “aspects of remorse about the loss of [his]…stepson and Lynette”. The respondent was not cross-examined.

6. [23]

   Also tendered on behalf of the respondent was an affidavit from another stepson, Scott Wilcox, and a family tree. The respondent’s counsel provided a series of three documents setting out the respondent’s written submissions.

The remarks on sentence

1. [24]

   In relation to the facts, the sentencing judge stated, “The factual circumstances of the offending are found in an agreed facts document apart from one matter to which I will return shortly”. After setting out those agreed facts, the sentencing judge stated as follows:

2. [25]

   The sentencing judge went on to state that it was agreed that the level of moral culpability was high, and that this was not a case involving momentary inattention or misjudgement. There was then a further reference to the guideline judgement of Whyte with the remarks continuing as follows:

3. [26]

   The extent and nature of the injuries suffered by Lisa Willis were found by the sentencing judge to be an aggravating factor. These included an undisplaced fracture of the left occipital condyle (base of skull and neck) with apical ligament tear; displaced fracture of the third metacarpal shaft (left middle finger); undisplaced fracture of the left acetabulum (hip); surgery to clean and repair cut to her forehead; and surgery to repair her left middle finger.

4. [27]

   In relation to the aggravating features under s 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW), the sentencing judge said:

5. [28]

   The sentencing judge then set out the respondent’s subjective details.

6. [29]

   At the time of sentence, the respondent was 61 years of age (and thus 58 years old at the time of the offending). The respondent had been married to Lynette Russell since 1984. They had two children together (Shane Russell and Iain Russell). Lynette Russell also had four children of her own from an earlier relationship (Tracy Wilcox, Scott Wilcox, Darren Wilcox and the victim Steven Russell).

7. [30]

   The respondent had served in the Army for about 25 years until 2002. While in the Army, the respondent suffered injuries to his back and right knee and hearing loss from the gunfire. He had been a heavy vehicle truck driver for a transport carrier in Tamworth between 2007 and 2012, driving to Sydney and back weekly. From 2012, he was in receipt of a Department of Veteran Affairs pension. The respondent has not been employed since 2015 due to his back problems which have resulted in difficulties with bending, lifting, and stepping up to the driver’s seat of a truck. The respondent had a back operation in 2017.

8. [31]

   The respondent was being treated by a psychiatrist in relation to the accident, and he was previously seeing a counsellor. He was also attending physiotherapy for his back and knees once a fortnight and had a regular check-up of his sugar levels, blood pressure and general health with his general practitioner because of the number of medications he was taking. The remarks also recorded that he had treatment for glaucoma in his left eye which required specific eyedrops that slowed the condition as it was inoperable. He also had the use of a walking stick from 2012 onwards due to his knees (one of which had been replaced) and to ease the pain in his back and to keep balance. The sentencing judge noted that custody would be more onerous for him because of his health conditions.

9. [32]

   The remarks further recorded the respondent’s account in his affidavit that he and the victim Lynette had a loving relationship and that they were living in a rented house in Tamworth together with the victim Steven and their son Shane. The remarks quoted the following from the affidavit: “We had no problems and were happy. We were married for 37 years and what happened is a [sic] extreme loss. There is just a big hole in everything and what I do now with my life”.

10. [33]

    The sentencing judge found that the respondent’s criminal history did not completely disentitle him to leniency, noting that he had served a period of imprisonment for larceny and also driving a vehicle recklessly, furiously, or at a speed or manner dangerous to the public in 2012. It was noted that the matter was initially dealt with in the Local Court, with a subsequent District Court appeal decreasing the sentence from four months to three months (for the driving matter), with additional time for the larceny matters. That is the only time the respondent had been in full time custody.

11. [34]

    The sentencing judge found that the respondent’s traffic record disentitled him to leniency “even making full allowance that he lived in the country or has lived in the country and he was a transport driver.” He had received his licence more than 44 years ago, getting his provisional licence in 1977, his unrestricted 1A licence in August 1978 and his class 3A licence in November 1978. He had a number of suspensions and 14 exceed speed offences between May and August of 2012. The sentencing judge again noted the offence of driving the vehicle recklessly, furiously, or at a speed or manner dangerous to the public, noting it went back to 2012.

12. [35]

    The sentencing judge noted that the respondent’s mental health concerns would make custody more onerous for him and his physical disabilities, combined with his age, would make him more vulnerable in custody. It was further noted that he would be going into custody during the COVID-19 pandemic and his custody would be more difficult with the court “being fully aware” of “lockdowns and the transfer of covid within the gaol” and noted some cases in support of that proposition.

13. [36]

    Victim impact statements were received from Ms Jennifer Martin, the sister of Lynette Russell; Mr Barry Roberts, the natural father of Steven Russell; Mr Darren Wilcox, the son of Lynette Russell; Ms Tracy Wilcox, the daughter of Lynette Russell, and Ms Lisa Willis, the victim in relation to count 3. The sentencing judge stated:

14. [37]

    The sentencing judge determined that the respondent had “good prospects for rehabilitation” but went on to state: “As to whether he will or will not re-offend it is very difficult to assess whether that will or will not happen and I make no finding in respect of that, the matter is neutral”.

15. [38]

    In relation to deterrence and totality the sentencing judge stated:

16. [39]

    The sentencing judge also noted that she had taken into account a sentencing assessment report, both oral and written submissions of the appellant and counsel for the respondent, the affidavits of the respondent and Scott Wilcox, and all the medical material attached to the respondent’s affidavit.

17. [40]

    The appellant did not argue against special circumstances being found, and the sentencing judge found them on the basis of the age of the respondent, his conditions of custody including the impacts of COVID-19, his mental health concerns and his requirement for supervision and assistance upon release from custody to reintegrate back into the community.

18. [41]

    After passing the indicative and aggregate sentences indicated at the beginning of this judgment, the sentencing judge also disqualified the respondent from driving for a period of three years and noted s 206B of the Road Transport Act 2013 (NSW) applies.

Principles on Crown Appeal

1. [42]

   Section 5D of the Criminal Appeal Act 1912 (NSW) provides to the Attorney-General or the Director of Public Prosecutions a right of appeal against a sentence and states that this Court “may in its discretion vary the sentence and impose such sentence as to the said court may seem proper”.

2. [43]

   The primary purpose of Crown appeals against sentence is to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons: Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 at [1].

3. [44]

   As can be seen from the terms of s 5D above, even if error is established, the Court has a discretion whether or not to intervene. It is for the Crown (the appellant) to negate any reason why the residual discretion not to interfere should be exercised: CMB v Attorney-General for New South Wales (2015) 256 CLR 346; [2015] HCA 9.

4. [45]

   The grounds of appeal allege both a patent error (Ground 1) and a latent error (Ground 2 – manifest inadequacy).

5. [46]

   In relation to Ground 2, the appellant must establish that the sentence was “unreasonable or plainly unjust” such that this Court “may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance” (House v The King (1936) 55 CLR 499 at 505; [1936] HCA 40).

6. [47]

   Further, as to sentence appeals on the ground of manifest excess or manifest inadequacy, the High Court stated in Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [58] (Gaudron, Gummow and Hayne JJ) (“Wong”):

7. [48]

   The task of sentencing requires that the sentencing judge must take into account a wide variety of matters which concern the seriousness of the offence for which the offender is to be sentenced as well as the personal history and circumstances of the offender (Wong at [77]). In Elias v The Queen (2013) 248 CLR 483; [2013] HCA 31, the Court (French CJ, Hayne, Kiefel, Bell and Keane JJ) emphasised at [27]:

Ground 1: that the sentencing judge erred in her assessment of the length of the journey during which others were exposed to risk

1. [49]

   As indicated above, the respondent has conceded error in relation to this ground. He is correct to do so for the following reasons.

2. [50]

   There was a dispute between the parties at the sentencing proceedings regarding the length of the journey during which others were exposed to risk. This factor is the seventh of the list of aggravating factors identified in R v Jurisic (1998) 45 NSWLR 209 at 231 (Spigelman CJ) (“Jurisic”), which were then consolidated and added to in Whyte at [216]-[217]. They are aggravating in the context of an otherwise “typical” case to assist the court in determining the appropriate penalty. The list of factors read as follows:

3. [51]

   In addition to pointing to the seventh factor, the appellant on sentence also pointed to the eighth factor, that is, that it was an aggravating factor that the respondent had ignored warnings as he had ignored the signs that the vehicle was struggling with the load of the caravan. It was argued in oral submissions that this factor was analogous to a journey by an intoxicated driver or a driver who knew a vehicle’s brakes were faulty.

4. [52]

   The respondent submitted that the duration of the journey was not an aggravating factor as the respondent had driven without issue for 130 kilometres and that the dangerous driving was at a time after the first swaying of the caravan.

5. [53]

   In making the contested finding regarding the length of the journey during which others were exposed to risk, the appellant argues to this Court that the sentencing judge made a finding of fact that was not open. Given the nature of the contended error, it is not necessary for me to discuss the appropriate standard of review of findings of fact made by a sentencing judge, a topic which has been the subject of differing views in this Court (see R v O’Donoghue (1988) 34 A Crim R 397; Hordern v R [2019] NSWCCA 138 at [20]; Gibson v R [2019] NSWCCA 221; Martinez v R [2022] NSCCA 12 at [39]).

6. [54]

   In my view, the finding that the dangerous driving only arose from the time of the caravan first swaying was not open to the sentencing judge.

7. [55]

   The appellant had opened and closed its case to the jury that it was the fact that the caravan was overloaded that made the driving itself dangerous (which caused the sway and ultimately led to the impact and consequences) and therefore, the whole of the journey with the overloaded caravan was dangerous. The respondent’s case to the jury was that the overloading of the caravan did not result in the first sway, that an unknown intervening factor caused the first sway, that the respondent lost control of the vehicle after the first sway and therefore, was not the “driver” from the time of the first sway to impact. On sentence, it was incumbent upon the sentencing judge to determine the length of the journey during which the respondent had in fact exposed others to risk as part of the assessment of the respondent’s culpability. As noted above, the sentencing judge resolved this dispute in favour of the respondent. Unfortunately, no reasons were provided for that resolution. It was incumbent upon the sentencing judge to provide reasons for this contested issue: R v Lau [2022] NSWCCA 131 at [76]-[78] (Bellew J, Adamson and Lonergan JJ agreeing at [1]; [183]).

8. [56]

   A summary of the relevant evidence was conveniently referred to in the written submissions provided by the appellant to this Court, to the following effect:

   1. (1)

      The evidence referred to in the appellant’s proposed findings of facts document before the sentencing judge was:

   2. (2)

      The appellant’s written submissions to the sentencing judge referred to further evidence led in the trial regarding the gross overloading of the caravan. This included the following submissions:

   3. (3)

      In the appellant’s written submissions to the sentencing judge, to support the proposition that the overloading of the caravan caused the caravan to sway (which caused the collision), the appellant referred to the evidence of the expert, Mr Colin Young, who was called by the appellant at trial, and summarised his evidence as being:

   4. (4)

      Additionally, in Mr Young’s evidence at trial, when explaining how the overloading of the caravan would have impacted upon whether it would have swayed, Mr Young explained:

   5. (5)

      Mr Young further explained that the speed of the vehicle “immensely” impacts upon the likelihood of the overloaded caravan starting to sway:

   6. (6)

      Mr Young said that the combination of speed, the caravan being over the regulated weight, and the vehicle travelling downhill is “the worst case scenario”.

   7. (7)

      The appellant also referred the sentencing judge to the evidence of Mr Alan Joy, the expert called on behalf of the respondent at trial. The appellant summarised his evidence as follows:

   8. (8)

      In response to the respondent pointing to other periods of the journey which involved driving downhill and applying various speed conditions which were navigated without incident, the appellant contended:

   9. (9)

      Mr Joy conceded in cross-examination that to overload the caravan to that extent was “potentially dangerous because it could result in a loss of control”.

9. [57]

   In my view, it is clear the evidence showed (and given the way the case was put before the jury, the jury must have found) that the caravan was grossly overloaded from the start of the journey. The dangerousness did not arise from the driving skill, or lack thereof, of the respondent. Nor was it a result of any inattention around the time immediately leading up to the collision. The dangerousness arose from the respondent’s deliberate decision to set off on a journey towing a grossly overloaded caravan. The passengers, as well as members of the travelling public, were exposed to risk for the entire length of the journey. The fact that the dangerousness did not manifest itself until the caravan started its fatal swaying was part of the factual circumstances which explained how and when the collision occurred (and was relevant to proving the offence), but that did not determine the dangerousness of the journey, a matter highly relevant to sentencing. The respondent’s skill, experience, attention, and his sobriety were no match for the risk posed by his deliberate decision to drive a grossly overloaded caravan – which once it started swaying – was uncontrollable.

10. [58]

    This conclusion is in accordance with two analogous cases.

11. [59]

    R v Manok [2017] NSWCCA 232 (“Manok”) involved a severely sleep deprived driver. The respondent in that case was fatigued from jet lag and had inadequate sleep in the three days preceding the offence. He was driving four passengers and at about 10:30 or 11:00pm, he drove along a highway and took a turnoff onto another road. Around the time of the turnoff, the respondent began to feel tired and a short time later he experienced a microsleep but thought it was unsafe to stop at that point so he continued driving. He drove for another 12 kilometres when he experienced another microsleep which caused the collision. Payne JA at [7] found that:

12. [60]

    Payne JA observed at [12]-[13]:

13. [61]

    Wilson J came to the same conclusion, expressed in separate reasons. Her Honour stated at [76]:

14. [62]

    This conclusion accorded with that of R v Warner (1991) 25 NSWLR 382 (“Warner”) – albeit Warner was not cited in Manok. Warner involved a boat navigated in a manner dangerous because it was grossly overloaded and therefore unstable and particularly susceptible to overturning. In the course of his analysis, Carruthers J at 385-386 quoted a passage of Barwick CJ from McBride v The Queen (1966) 115 CLR 44 at 49-50; [1966] HCA 22 (said to have obtained the status of a “locus classicus”) in relation to the concept of driving a motor vehicle in a manner dangerous to the public within the meaning of s 52A of the Crimes Act 1900 (NSW):

15. [63]

    Carruthers J in Warner added the following at 386:

16. [64]

    In the course of his reasons, Carruthers J referred to consideration of the words “improper navigation” within the meaning of the limitation of liability provision contained in s 54(4) of the Merchant Shipping Act Amendment Act 1862 (UK) as considered by the English Court of Appeal in The Warkworth (1884) 9 PD 145. In that case, the Warkworth collided with another vessel by reason of a defect in its steam steering gear. The defect was the result of faulty work by shore personnel prior to the vessel putting to sea. The Court of Appeal upheld the decision of Butt J that the collision had occurred through “the improper navigation” of the Warkworth. Brett MR said at 147:

17. [65]

    Bowen LJ said at 148:

18. [66]

    Other shipping insurance cases, to similar effect, were discussed by Carruthers J who concluded at 398 that he could see no difference in the alleged overloading which occurred in the instant case and the errors or faulty work which had occurred prior to starting the journeys in the shipping cases: “they all constitute improper conduct which continues through the voyage and may be categorised as improper navigation.”

19. [67]

    Further, it is noted that in Jiminez v The Queen (1992) 173 CLR 572; [1992] HCA 14 (“Jiminez”) the High Court (Mason CJ, Brennan, Deane, Dawson, Toohey and Gaudron JJ) stated at 580:

20. [68]

    I also note that underpinning the sentencing judge’s error in relation to the length of the journey (at least in part) appears to be an acceptance of a submission made by the respondent’s counsel at the sentencing proceedings which referred to “foreseeability”. It is important to remember that this offence is one of strict liability: Jiminez. Concepts of foreseeability arising from civil actions in negligence have no part to play in determining liability for this offence. The error made by the sentencing judge appears to have been affected by importing notions of foreseeability into determining the length of the journey during which others were exposed to risk.

21. [69]

    Finally in relation to this ground, I also note that in its written submissions at sentence, the appellant set out that the relevant length of the journey was the length of the planned journey from Tamworth to Wauchope – a distance of 250 kilometres, also noting that the collision occurred approximately 130 kilometres into that journey. The intended length of the journey was indeed relevant to culpability. In Mina Nashed v Regina [2010] NSWCCA 282, Garling J stated at [23] (with whom Price and Simpson JJ (as her Honour then was) agreed at [1]-[2]) that he agreed with the judgment of Simpson J (as her Honour then was) in R v Takai [2004] NSWCCA 392 at [39] where her Honour held that the journey contemplated by this factor “… was the intended journey and not the journey attenuated by the collision …”.

22. [70]

    I am of the view that Ground 1 is made out.

Ground 2: that the sentence imposed is manifestly inadequate

1. [71]

   In considering whether the sentence was manifestly inadequate, the following matters can be noted. The maximum penalty applicable to the two offences of dangerous driving occasioning the deaths of Lynette Russell and Steven Russell is 10 years imprisonment. The maximum penalty applicable to the offence occasioning grievous bodily harm to Lisa Willis is 7 years imprisonment.

2. [72]

   The appellant contends that the aggregate sentence in this case manifestly fails to recognise the totality of the criminality, and particularly fails to recognise the loss of two human lives and the grievous bodily harm occasioned to the third victim. It is also contended that the indicative sentences showed error and contributed to the imposition of a wholly inadequate aggregate sentence. The appellant also contends in relation to special circumstances that the extent of the departure from the statutory ratio of 75% pursuant to s 44(2B) of the Crimes (Sentencing Procedure) Act 1999 (NSW) was unwarranted.

3. [73]

   Although the respondent conceded that ground 1 was made out, he has nevertheless contended that the sentence is not manifestly inadequate. Rather, at most, it is said to be (as stated on his behalf at the hearing of the appeal) “a sentence which is soft and merciful and it was open in the circumstances for [the sentencing judge] to be merciful having regard to the age, character and antecedents of this particular respondent.”

4. [74]

   As referred to above, this is an offence to which a guideline judgement applies. [1] In the guideline judgment of Whyte Spigelman CJ at [204] (with whom Mason P, Barr, Bell and McClellan JJ agreed) set out a “frequently recurring case of an offence under s52A” which had the following characteristics:

5. [75]

   The first limb of the Whyte guideline – the custodial limb – applies to “the typical case” with the above characteristics and is to the effect that in such a typical case “[a] custodial sentence will usually be appropriate unless the offender has a low level of moral culpability, as in the case of momentary inattention or misjudgement.” [2]

6. [76]

   The second limb of the Whyte guideline is the numerical guideline. The numerical guideline relies on both the factors associated with a typical case set out at [74] above, as well as one or more of the aggravating factors impinging on moral culpability set out at [50] above. In the passage preceding the setting out of the numerical guideline, Spigelman CJ stated at [228]:

7. [77]

   Spigelman CJ then set out at [229]-[230] of Whyte the reformulated numerical guideline as follows:

8. [78]

   At [231], Spigelman CJ stated:

9. [79]

   Further, at [232], Spigelman CJ stated:

10. [80]

    Importantly, at [205], Spigelman CJ also stated:

11. [81]

    In Moodie v R [2020] NSWCCA 160 (“Moodie”), Bell P (as his Honour then was) stated at [66] that where there is a guideline judgment about a particular offence, the sentencing judge is:

12. [82]

    In Manok, Wilson J stated at [78]-[79]:

13. [83]

    Further, Bell P stated in Moodie at [109]:

14. [84]

    The appellant acknowledges that indicative sentences are not themselves amenable to appeal, and that even if they are inadequate, it does not necessarily follow that the aggregate sentence is manifestly inadequate. However, they may be a guide as to the whether there is error in the ultimate sentence: JM v R [2014] NSWCCA 297; (2014) 246 A Crim R 528 at [40]; R v Hill [2020] NSWCCA 197 at [105]. See also Ladas v R [2022] NSWCCA 160 at [31] and Kliendienst v R [2020] NSWCCA 98 at [76]-[103].

15. [85]

    With these principles in mind, it is convenient to return to the remarks on sentence.

16. [86]

    In the course of the remarks, the sentencing judge referred to the appellant’s submissions which “carefully considered the elements” in Whyte. The sentencing judge at pages 6-7 of the remarks appeared to undertake an exercise of determining whether or not those elements applied in this case, and noted the following in relation to the Whyte “typical” factors (with emphasis added):

    1. (1)

       The respondent was not a young offender, rather a 58 year old truck driver with a heavy vehicle license.

    2. (2)

       There was not one offence here, but three separate offences (and the sentencing judge did not at this point use the terminology of Whyte that the driving resulted in the deaths of two people as well as grievous injury to a third person).

    3. (3)

       The respondent was not a person of good character.

    4. (4)

       The victims were not strangers (although it is not clear whether the sentencing judge considered the fact the respondent knew his victims made the offending more or less serious or indeed was neutral in the circumstances and was set out simply as being different from one of the “elements” in Whyte – I return to this and the following matter below).

    5. (5)

       As to the factor of “No or limited injury to the driver or the driver’s intimates”, it was also noted that the respondent suffered injuries. Again, it was not clear whether or not this was regarded by the sentencing judge as more or less serious than the Whyte factor. The sentencing judge further noted in this context the “very significant” grievous bodily harm to Lisa Willis (this latter factor clearly increasing the objective seriousness).

    6. (6)

       As to the Whyte factor of “genuine remorse”, the sentencing judge accepted the respondent was remorseful for his offending behaviour.

    7. (7)

       As to the Whyte factor of “a plea of guilty of limited utilitarian value”, no comment was made in this section of the remarks that this was not a plea of guilty and that the sentence followed findings of guilt by a jury.

17. [87]

    That this matter was “atypical” when compared to the “typical” case of Whyte is clear and indeed striking. The following factors all compared unfavourably to the “typical” Whyte features.

18. [88]

    The respondent was a man of mature years, who had been a truck driver who had held a heavy vehicle licence for 42 years. He acknowledged that he was aware of the importance of weight limits and how exceeding those limits could impact on the handling and stability of the vehicle. The respondent was the person who directed and supervised the loading of the caravan which was grossly overloaded. The respondent was the driver of the vehicle when it was sluggish going up hills.

19. [89]

    The respondent pleaded not guilty and was found guilty after trial and received no utilitarian discount on his sentence.

20. [90]

    The respondent’s moral culpability was found by the sentencing judge to have been high (albeit within the lower end of that spectrum) notwithstanding the error made by the sentencing judge in relation to the length of the journey over which others were exposed to risk.

21. [91]

    The sentencing judge did not make an explicit finding as to the objective seriousness of the offence but did find that the respondent’s deliberate decision to grossly overload the caravan and the extent of that overloading “goes to the seriousness of the offence”.

22. [92]

    The respondent was not a person of good character, but the sentencing judge found that whilst his criminal record did not completely disentitle him to leniency, his traffic history did disentitle him to leniency.

23. [93]

    The only “typical” Whyte feature to be found in this case was the finding of genuine remorse. However, that single “typical” feature was neither so extensive nor powerful to bring the indicative sentences down to the level they were, nor to explain the final aggregate sentence. Indeed, it can be noted that the Community Corrections report stated that:

24. [94]

    Furthermore, in the respondent’s affidavit tendered before the sentencing judge, he deposed that “How the accident came to this I will never know or understand”. The respondent further indicated that this was not the first occasion in which he had loaded the caravan with belongings and equipment and that “while it may be heavy I was use [sic] to it and never had a problem.”

25. [95]

    Before leaving the Whyte factors, it can be remembered that one of the “typical” matters listed was that the victims were strangers. Whilst this factor might be “typical”, unlike most of the other Whyte factors it does not have obvious sentencing implications. Indeed, in my view it is neutral in relation to affecting the length of any sentence.

26. [96]

    Causing the unexpected death of a fellow human being by dangerous driving is devastating in all circumstances. There is no obvious objective moral gradation in causing the death of a stranger rather than someone well loved (or indeed someone who falls anywhere between those two points). That an offender may be subjectively more seriously affected by the death of a loved one as against a stranger is possible – but again, it is not necessarily the case that causing the death of a loved person would have a greater effect on an offender than bearing the guilt of killing, for instance, someone else’s life partner or child. Considerations may well pull in many directions in determining the effect on sentence on both an objective and subjective level: see R v Wright [2013] NSWCCA 82; (2013) 229 A Crim R 245 at [62]-[63] referring to Hughes v R [2008] NSWCCA 48; (2008) 185 A Crim R 155 and R v Howcher [2004] NSWCCA 179; (2004) 146 A Crim R 371.

27. [97]

    In this case, the sentencing judge noted the effect of the deaths on the respondent and took that into account as a mitigating factor.

28. [98]

    The same observations can be made in relation to the Whyte factor concerning “no or limited injury to the driver or the driver’s intimates.” [3]

29. [99]

    It is clear that Whyte had prominence in the course of the sentencing hearing which flowed through to the remarks on sentence. This was appropriate – indeed the sentencing judge was obliged to take that guideline judgement into account. [4] However, after systematically going through the “typical” factors and finding very few of those occurred to any extent in this case, the numerical guideline should have made clear to the sentencing judge that the indicative sentences were likely to be significantly too lenient in the circumstances of this sentencing exercise. It bespeaks error in the exercise of the sentencing discretion that the indicative sentences were markedly below the numerical guides for both offences rather than markedly above, as might be expected given the objective features of the offending and absent an unusually compelling subjective case. There was no such unusually compelling subjective case to warrant such an outcome.

30. [100]

    I am further of the view that the significance of the manifestly inadequate indicative sentences was compounded by the extent of notional accumulation between the three counts. Where more than one person has been injured or killed:

31. [101]

    The level of notional accumulation, especially when combined with the length of the indicative sentences, was patently insufficient to recognise the death of two people and the grievous bodily harm of a third.

32. [102]

    Further, the sentencing judge found special circumstances and set the non-parole period at 50%, a significant departure from the statutory ratio of 75% pursuant to s 44(2B) of the Crimes (Sentencing Procedure) Act 1999 (NSW). It is not clear the basis on which such a large departure was made by the sentencing judge.

33. [103]

    It is well-established that a finding of special circumstances is a discretionary finding of fact with which this Court will be slow to intervene: Caristo v R [2011] NSWCCA 7 at [27]. As stated in Power v The Queen (1974) 131 CLR 623; [1974] HCA 26 at 628:

34. [104]

    The importance of the non-parole period for the purposes of general and specific deterrence was conveniently summarised in Regina v M A [2004] NSWCCA 92; (2004) 145 A Crim R 434 at [33]:

35. [105]

    In Hejazi v R [2009] NSWCCA 282; (2009) 217 A Crim R 151 at [36] it was also stated:

36. [106]

    It is also well-established that the reduction of the non-parole period by a finding of special circumstances cannot result in an overall non-parole period that fails to reflect the seriousness of the offence and both specific and general deterrence: Maglis v R [2010] NSWCCA 247 at [28]; R v West [2011] NSWCCA 91 at [56].

37. [107]

    It is not in contest that the respondent’s age, the impact of the COVID-19 pandemic on conditions of custody and his physical and mental health concerns would justify a finding of special circumstances. However, the sentencing judge also reduced the non-parole period because of the respondent’s “requirement for supervision and assistance upon release from custody to reintegrate back into the community”. There was no evidence before the sentencing judge to point to any significant or extensive rehabilitative needs.

38. [108]

    In my opinion, the degree of departure from the statutory ratio to 50% resulting in a non-parole period of 2 years assisted in bringing about a non-parole period which was manifestly inadequate and did not reflect the criminality involved in this serious offending.

39. [109]

    In light of all the above matters, whilst it is appropriate to make due allowance for the physical difficulties faced by the respondent as an older and more vulnerable man in custody, together with his mental health issues, his remorse and prospects of rehabilitation, those factors cannot be permitted to reduce the sentence to a point where general deterrence, specific deterrence and denunciation are not properly reflected in the ultimate sentence.

40. [110]

    Ground 2 should be upheld.

Residual Discretion

1. [111]

   Having found error under both grounds, it remains for the appellant to satisfy the Court that it should not exercise its discretion to decline to intervene.

2. [112]

   In this case, there was no delay in the institution, service or listing of the appeal. The sentence was delivered on 5 May 2022. On 10 May 2022, the respondent was notified by the appellant that the institution of a Crown appeal was being considered, and the Notice of Appeal was filed on 1 June 2022 and served on the respondent on the following day. The conduct of the appellant before the sentencing judge did not contribute to the errors now relied upon. To the contrary, the appellant made detailed oral and written submissions in relation to all the matters now relied upon by the appellant.

3. [113]

   The respondent, on the other hand, contends that the residual discretion not to interfere should be exercised. He states that this was not a case where the appeal needs to be allowed to correct some special idiosyncrasy of the sentencing by this particular judge or to clarify or promulgate some special principle. The respondent acknowledges the relevance of general deterrence, but, in relation to the exercise of the discretion, points to the respondent’s age of 61 years, his marriage of over 30 years, his public service in the army for 25 years, and that he is a father of two children and stepfather to three additional children. He also points to the deep antagonism towards him from two of his stepchildren as a result of the accident. In addition to this, the respondent points to his own physical challenges and his post-traumatic stress disorder for which he has been receiving psychiatric intervention. He also points to his statement to the author of the sentencing assessment report (also noted above) that, “I was in the driver’s seat, I have to live with that for the rest of my life.”

4. [114]

   Whilst these are all cogent matters, in all of the circumstances, I am of the view that the appellant has satisfied the Court that it should not exercise its discretion to decline to intervene. The swift institution of the appeal combined with the success of both grounds of the appeal, the seriousness of the offending including the length of the journey over which others were exposed to risk, the respondent’s background including his criminal history and traffic record, the acknowledged need for general deterrence, as well as specific deterrence, punishment and denunciation are such that the Court should intervene to increase the respondent’s sentence to properly reflect those matters. The seriousness of the matter is even more significant given the tragic loss of two lives and the serious injury to a third person.

Resentence

1. [115]

   Having found error, it is necessary to exercise the sentencing discretion afresh. Apart from the factual finding in relation to which error has been found concerning the length of the journey during which the public was exposed to risk under Ground 1 above, I adopt the factual findings of the sentencing judge. I find that the length of the journey over which the public was exposed to risk was 130 kilometres, and that it is relevant to the assessment of the respondent’s culpability that the intended journey was 250 kilometres. I adopt the sentencing judge’s findings in relation to the respondent’s subjective case.

2. [116]

   I would make a finding of special circumstances by reason of the physical and mental difficulties the respondent faces in custody, as well as the effect of COVID-19 on his custodial conditions for at least some of his period in custody.

3. [117]

   In my view, the following sentences are indicated:

   1. (1)

      Count 1: 4 years’ imprisonment;

   2. (2)

      Count 2: 4 years’ imprisonment;

   3. (3)

      Count 3: 2 years and 6 months’ imprisonment.

4. [118]

   I would impose an aggregate sentence of 6 years and 6 months’ imprisonment with a non-parole period of 4 years.

5. [119]

   The orders I propose are as follows:

   1. (1)

      Allow the appeal;

   2. (2)

      Quash the sentence imposed on the respondent in the District Court on 5 May 2022 and in lieu thereof, sentence the respondent to a term of imprisonment of 6 years and 6 months with a non-parole period of 4 years commencing on 5 May 2022. The date the respondent is first eligible for release to parole is 4 May 2026.