Moananu v R

1. [1]

   LEEMING JA: I have had the advantage of reading in draft the judgments of each of Price J and Hamill J. Like Price J, I agree with Hamill J that grounds 1, 2 and 3 should be dismissed. However, on the final ground of appeal, which is that the aggregate sentence of 15 years’ imprisonment, with a non-parole period of 10 years, is manifestly excessive, their Honours are divided. What follows assumes familiarity with the background set out in Hamill J’s judgment.

2. [2]

   In determining this ground of appeal, this Court is not identifying any error apparent on the face of the judgment. The essential issue is whether the sentence is unreasonable or plainly unjust, such that it may be inferred that something has gone awry in the application of principle, even though it is not apparent on the face of the reasons where and how. In addressing that issue, it is trite that it is not to the point that this Court would impose a different sentence, and it must be borne steadily in mind that there is no single correct sentence for any offence.

3. [3]

   Whether this Court dismisses the appeal, leaving Mr Moananu to serve the entirety of his non-parole period of 10 years with the prospect thereafter of being released to parole (and in all likelihood deportation), or whether the appeal is allowed, leaving him to serve a lesser period of imprisonment followed by the prospect of parole (and likely deportation), will make no difference to the lives which have been lost, the very serious ongoing injuries suffered by Mr Hoang, or the grief to families and friends caused by the senseless loss.

4. [4]

   General deterrence in cases such as this is important, as the sentencing Judge rightly observed. In particular, I agree with his Honour’s observation at [121]:

5. [5]

   That said, it may be doubted whether a sentence of imprisonment for 15 years with a non-parole period of 10 years, as opposed to a sentence of imprisonment for 12½ years with a non-parole period of 8 years and 4 months, will materially alter the effect of general deterrence in offending of this nature.

6. [6]

   My immediate response when receiving the papers in this appeal was that the sentence, for two counts of manslaughter and one count of aggravated dangerous driving occasioning grievous bodily harm, with some other offending taken into account, seemed very high. Each indicative sentence (of 8½ years, 9 years, and 4½ years) incorporated a 25% discount for Mr Moananu’s plea. The undiscounted starting points for the indicative sentences were thus 11 years and 4 months, 12 years, and 6 years. The appeal is from the sentence imposed, the undiscounted starting point for which was 20 years’ imprisonment.

7. [7]

   Does the history of sentencing for offences of this nature bear out that initial, impressionistic response? Conscious as I am of the limitations in relying on individual cases in order to establish a range of sentence, I see no other way to approach the task, although it is important to bear in mind the facts in every individual case which have been brought to account in the exercise of the sentencing discretion. My approach accords with that adopted in Smith v R [2020] NSWCCA 181; 93 MVR 345 where this Court intervened on this ground, and I have been further assisted because that appeal identifies a number of comparable decisions.

8. [8]

   There is some utility in comparing the sentence imposed for single instances of manslaughter with the indicative sentences in this appeal. When that is done, I see no basis for a concluding that any of the indicative sentences would, if it had in fact been imposed, be manifestly excessive. A sentence of 9 years’ imprisonment, representing an undiscounted starting point of 12 years’ imprisonment, for a manslaughter involving the misuse of alcohol killing an entirely innocent road user is not of itself manifestly excessive. The starting point for the sentence for a single count of manslaughter in Byrne v R; Cahill v R [2021] NSWCCA 185; 97 MVR 85 was higher (14 years), although that killing occurred followed street racing. Although one member of that Court said that he might have started at 12 years (at [123]), and the others regarded the sentence as “heavy” (at [5]) and “stern” (at [128]), all members agreed that it was not manifestly excessive.

9. [9]

   But the appeal is not brought from the indicative sentences, but the aggregate sentence which was in fact imposed. Bearing in mind the broad discretion in relation to (notional) accumulation and concurrency, it is to my mind more useful to compare sentences for driving causing the death of more than one victim. When an actual sentence for the offence of manslaughter is imposed, that is of greater weight than the indication of a notional sentence for manslaughter which is but one of the offences for which a single sentence is imposed. That is because of the impact of the broad discretion in relation to notional accumulation and concurrency. The point may be illustrated by noting that in the present case, it would have been open to the sentencing Judge to specify indicative sentences for the manslaughter counts of, say, 8 years and 8½ years, or 8 years and 8 years and 4 months, or 9 years and 9½ years, rather than the 8½ years and 9 years in fact specified, and still impose the same aggregate sentence of 15 years’ imprisonment with a non-parole period of 10 years. It may also be made by observing that a notional undiscounted starting point of 11 years and 4 months (which corresponds to the indicative sentence of 8½ years) is a little unintuitive. None of this is to suggest that when specifying indicative sentences, judges do not diligently try to identify the sentence which would have been imposed as part of a traditional sentence. But it would be natural for greatest attention to be given to the sentence which mattered, namely, the actual sentence, and less attention to be given to the individual indicative sentences.

10. [10]

    Further, I note, and respectfully agree with, the observations of Simpson AJA that little assistance is obtained in considering sentences imposed for multiple offences when considering whether the sentence imposed for single offences is manifestly excessive: Smith v R at [76]. The converse is equally true.

11. [11]

    Accordingly, I turn to those sentences for multiple offences resulting from the same driving. All of the following, save R v Cameron [2005] NSWCCA 359; 157 A Crim R 70 and R v Chandler (No 2) [2017] NSWSC 1758, are cases where there was a 25% discount for guilty pleas. Most are summarised in more detail by Hamill J.

12. [12]

    In Cameron, the offender was sentenced for three counts of manslaughter and one of dangerous driving causing grievous bodily harm arising out of a collision with a telegraph pole, occurring on his 21st birthday, by a driver who had never held a licence and whose blood alcohol level was somewhere in excess of 0.114 mgs of alcohol per 100 ml of blood, with traces of methamphetamine and cannabis also present. The collision occurred when the vehicle was driving considerably in excess of 100 km/h on a road with a 50 km/h limit. At the time the offender was on conditional liberty subject to a two-year good behaviour bond as a consequence of earlier offences. The overall sentence was one of imprisonment for 8 years with a non-parole period of 4 years, which reflected late pleas of guilty to which a discount between 15 and 20% was attributed. This Court allowed a Crown appeal and imposed sentences of 7 years’ imprisonment with non-parole periods of 4 years for each manslaughter count, resulting in a total effective sentence of 9 years with a non-parole period of 6 years. Importantly, that resentencing preceded the enactment of s 68A of the Crimes (Appeal and Review) Act 2001 (NSW), with McClellan CJ at CL noting that:

13. [13]

    In Lawler v R [2007] NSWCCA 85; 169 A Crim R 415, the offender drove a prime mover and trailer, known to be unregistered and uninsured, with defective brakes, and killed one driver, grievously injured two others, and collided with 33 vehicles, causing less serious injuries, on a long steep decline when he could not stop. A sentence of 10 years and 8 months, with a non-parole period of 8 years was held not to be manifestly excessive.

14. [14]

    In Duncan v R [2012] NSWCCA 78, the offender, aged 36, was driving a vehicle on a country road with five young people as passengers. She had earlier encouraged the only other adult passenger to drive faster, and the vehicle reached a speed of just under 210 km/h. Shortly after this, Ms Duncan took the wheel, accelerated to about 200 km/h, and crashed into bushland. Two of the passengers were killed and the other three suffered serious injuries. She was charged with two counts of manslaughter and three of dangerous driving causing grievous bodily harm. On each count of manslaughter, sentences of imprisonment for 9 years and 6 months with non-parole periods of 5 years were imposed, with fixed terms of imprisonment for 3 years for the dangerous driving offences, yielding a total effective sentence of 12½ years with a non-parole period of 8 years. This Court held that the sentences were not manifestly excessive.

15. [15]

    In Spark v R [2012] NSWCCA 140, this Court dismissed an appeal against a total effective sentence of 15 years with a non-parole period of 11 years and 3 months. The offender was driving while experiencing drug withdrawal after using methylamphetamine and amphetamines. He had never held a driver’s licence. He was on parole for car theft at the time, and the collision occurred after a lengthy police pursuit. His car killed the driver of an oncoming car and her 18-year-old daughter when he crossed to the opposite side of the road.

16. [16]

    In R v Winter [2012] NSWCCA 218; 225 A Crim R 572, the offender was told not to drive after a medical episode. She smoked cannabis, suffered a blackout while driving, and killed two pedestrians. She had a driving record for speeding, a criminal record involving dishonesty, and was found to have lied to the sentencing Judge. A Crown appeal was allowed, with this Court imposing sentence of 9 years’ imprisonment with a non-parole period of 6 years. This Crown appeal post-dated the introduction of s 68A of the Crimes (Appeal and Review) Act.

17. [17]

    In Crowley v R [2021] NSWCCA 45, this Court regarded an aggregate sentence of 14 years and 3 months’ imprisonment with a 10-year non-parole period for one count of manslaughter and three counts of aggravated dangerous driving occasioning grievous bodily harm as severe but not manifestly excessive, notwithstanding the guilty pleas, the offender’s youth, remorse, prospects of rehabilitation and unlikelihood of reoffending. The offender’s blood alcohol was 0.12, and he had been driving, for part of the time followed by police, in the wrong direction of traffic onto an off-ramp contrary to two large signs showing “Wrong Way Go Back” and continued for some 2 kilometres, before travelling south down a north bound bicycle lane, side-swiping at least three vehicles before colliding head-on with a vehicle containing five people, one of whom was killed, the others sustaining serious injury. The offending was summarised at [109]:

18. [18]

    A ground that the sentence was manifestly excessive was rejected. The indicative sentence for the manslaughter was imprisonment for 11 years (reflecting a notional starting point of 14 years and 8 months). However, this ground was far from being at the forefront of the appeal. I do not mean merely that it was the last ground, which is not uncommon and ordinarily appropriate because its premise is the absence of patent error. It was regarded as subordinate.

19. [19]

    I have also reviewed the transcript of the hearing of 3 March 2021 which occupies 49 pages. It records that the hearing occupied 2 hours and 50 minutes, which is very long for a sentence appeal. Senior counsel for the appellant addressed for slightly more than 32 pages. All save the last nine lines of the transcript of his submissions were directed to the other grounds, especially the application to adduce fresh evidence about the applicant’s medical condition and the complaint that the representation at trial was incompetent. The entirety of what was said on manifest excess was this:

20. [20]

    The Crown said the following:

21. [21]

    Counsel for the Crown returned to this ground and said:

22. [22]

    There followed some short submissions on the distance Mr Crowley had driven. No submissions were made about manifest excess in reply.

23. [23]

    The reasons reflect the emphasis in the submissions. Most of the long judgment addressed the factual challenges directed to the new evidence of mental illness and the conduct of the sentencing proceedings. The short reasoning on manifest excess focussed on the unusually appalling conduct of the offender, and did not address a single decision in terms, reflecting the Crown’s submission that none was comparable.

24. [24]

    Spark and Crowley are the only instances which involve sentences in the same ballpark as that in the present case. Both involved police chases, which is a significant difference from the offending for which the applicant was sentenced. Spark is quite different, involving an unlicensed driver who was on parole for car theft at the time. Crowley also differs in that the police abandoned their pursuit when Mr Crowley drove his vehicle in the same lane as, and in the opposite direction of, oncoming traffic for a significant period of time. Mr Crowley’s subjective case was less powerful than the applicant’s, following the rejection of the evidence concerning the effect of mental illness. However, it must be acknowledged that only one of the occupants of the vehicle with which Mr Crowley collided head-on was killed, with four being injured.

25. [25]

    My sense that the sentence imposed on the applicant sits ill with sentencing patterns is also strengthened by this Court’s decision in Day v R [2014] NSWCCA 333; 69 MVR 103. There a sentence of 10 years’ imprisonment with a non-parole period of 7 years was regarded as stern but not manifestly excessive for the manslaughter of one cyclist, and the grievous injuries to 3 other cyclists (one of whom suffered ongoing mild brain injury, and another had suffered from ongoing mental illness) struck while riding in the breakdown lane by an acutely exhausted truck driver who had smoked marijuana within hours of driving.

26. [26]

    There are many instances of drivers who killed multiple victims but who have been sentenced on the basis of aggravated dangerous driving occasioning death contrary to s 52A(2) of the Crimes Act 1900 (NSW). Little assistance is derived from such cases for present purposes, because they invariably result in a substantially lower sentence than was imposed on the applicant. That is because the s 52A(2) offence is less serious, as reflected in the maximum penalty for that offence being 14 years’ imprisonment, as opposed to the 25 years which manslaughter attracts, as noted by this Court in R v Wright [2013] NSWCCA 82; 63 MVR 250 at [82].

27. [27]

    The applicant’s sentence is significantly higher than the sentences imposed in Lawler and Duncan, and very substantially higher than those imposed in Cameron and Winter. The head sentence is identical to that imposed in Spark, where two road users were killed while the offender was in a police chase, and the subjective case was completely different, the offender being unlicensed and on parole for car theft at the time. Crowley involves significantly worse offending insofar as it too involved a police chase and then driving into oncoming traffic for a significant distance, and lacks the applicant’s very powerful subjective case.

28. [28]

    I respectfully agree with the sentencing Judge that the applicant’s childhood deprivation did not greatly diminish his moral culpability for driving which was rightly found to be at the upper end of the range. Yet the evidence of deprivation in this family of 13 children was powerful. Physical abuse of children is not uncommonly adduced in appeals heard in this Court, yet it is not common in this Court to hear of an offender who, like the applicant, has been beaten by his mother with a piece of timber with nails sticking out, leaving holes in his back, traumatising his sister who “started to wipe away the blood and bits of timber that was stuck in his back”, and who was taken away by relatives as “mum and dad no longer wanted him there”. Poverty is likewise not uncommon, but it is uncommon to read of a child who was ridiculed for scavenging for food in school garbage bins, the adults having gambled away what money there was. His sister said that when the applicant was aged around 10, he was left in charge of his baby brother, who died that night, and that she always saw the applicant “crying and blaming himself as my parents were blaming him” and that “[h]is beatings also became worse following this event”. She concluded that “it was because of my parents addictions that Richard was forced to give up his youth and take on the role of looking after us younger siblings as if he was our mother”.

29. [29]

    There is one final way of looking at the position. The head sentence imposed upon the applicant was as heavy as any of those mentioned above. The only non-parole period which was heavier was Spark and for the reasons mentioned, Spark is a much worse case. There is one other case of comparable manslaughter which I am aware in which a greater sentence was imposed by the Supreme Court. That was Chandler, but in that case there was an extensive criminal history, the offender stole a vehicle while on bail and drove it backwards into a police vehicle and then through a fence into a backyard killing a very young child. The sentence of 19 years’ imprisonment with a non-parole period of 13 years incorporated a discount of 5% for a very late plea, and so the undiscounted starting point (admittedly for a single manslaughter) was identical with that of the applicant. I do not regard the sentence in Chandler as denying the conclusion that the applicant’s sentence was manifestly excessive.

30. [30]

    The result of the above is that I conclude that this Court should intervene. The offender’s conduct was appalling, and its consequences tragic. Yet similarly appalling conduct, with similarly tragic consequences, has resulted in substantially lesser sentences, and identical sentences have only been imposed in significantly worse cases. I agree with the orders proposed by Hamill J.

31. [31]

    PRICE J: I have had the considerable advantage of reading the judgment in draft of Hamill J. I agree that grounds 1, 2 and 3 should be rejected. However, I respectfully do not agree that the aggregate sentence of 15 years with a non-parole period of 10 years is manifestly excessive and that ground 4 should be upheld.

32. [32]

    The relevant parts of the applicant’s offending, his subjective case, and the experienced sentencing Judge’s remarks on sentence are comprehensively covered in Hamill J’s judgment and I gratefully adopt them.

33. [33]

    The correct approach to a ground asserting manifest excess is well settled. The applicant must establish that the aggregate sentence imposed is “unreasonable or plainly unjust”. Bell P (as the Chief Justice then was) recently observed in Byrne v R; Cahill v R (‘Byrne & Cahill’) (at [1]): [1]

34. [34]

    I am grateful for Hamill J’s analysis of sentencing outcomes in other vehicular manslaughter cases. I would add to that analysis, Byrne & Cahill, where this Court (Bell P, Rothman and Button JJ) dismissed an appeal against the sentences imposed upon two appellants, the drivers of two motor vehicles engaged in a street race, one of which had collided with a vehicle being driven by an innocent person, causing that person’s death. The appellants held provisional licenses and drove their vehicles at excessive speeds in Wagga Wagga over a distance of approximately 550 metres. The speed limit over the course of the race was 50km/h and occurred at about 10am in a residential area with a high school nearby. Mr Byrne’s vehicle was recorded travelling at 143km/h shortly before impact whereas the speed of Mr Cahill’s car was not less than 100km/h. The street race was unplanned and opportunistic. However, the involvement of two vehicles in a race significantly increased the danger to others.

35. [35]

    Each of the appellants was a young person whose subjective case was relatively strong. However, the primary Judge observed that youth is of less assistance as a mitigating factor in serious driving offences.

36. [36]

    The appellants received a 25% discount on sentence for their pleas of guilty and were each sentenced to imprisonment of 10 years and 6 months with a non-parole period of 7 years. The undiscounted starting point of the sentences was 14 years. The sole ground of appeal was manifest excess which this Court rejected.

37. [37]

    The limited use that may be made of comparable cases is well known. As Rothman J explained in Byrne & Cahill:

38. [38]

    The analysis of the comparable cases demonstrates that the facts and circumstances which give rise to vehicular manslaughter may vary in many ways. However, the pattern of past sentencing may be used as a check or yardstick against a proposed sentence.

39. [39]

    In the present case, the applicant drove his car with a blood alcohol level of 0.204g/100ml along The Northern Road, Orchard Hills in a southerly direction. The speed limit was 60km/h. He was observed to be weaving between traffic at a speed in excess of the speed limit. He attempted to overtake a vehicle on the right-hand side but there was no room to do so. His vehicle mounted a concrete dividing median strip, continued through the grass section, rotated in a clockwise direction, became airborne, entered the northbound lane and collided head on with the vehicle being driven by AH. Ms Gordon and AH were killed, and Mr Hoang was seriously injured.

40. [40]

    In the reconstruction report of the collision, the minimum speed of the applicant’s vehicle leading up to the collision was 112km/h and the speed of the vehicle at the time that the airbag was deployed was approximately 106.4km/h. The distance from the hotel, where the applicant had been drinking, to the point of the collision was 6.4km. The applicant did not hold a valid licence.

41. [41]

    The applicant’s complaints of error in grounds 1, 2 and 3 have failed. Accordingly, the sentencing Judge’s assessment of the objective seriousness of the offences and the applicant’s subjective case are undisturbed. It is not open to the members of this Court, where discrete error has not been established, to substitute their own opinion about the objective seriousness of the offending or the strength of the applicant’s subjective case.

42. [42]

    The favourable findings his Honour made included that the applicant’s remorse was genuine and he had reasonable prospects for rehabilitation. His Honour was satisfied “[t]o some degree the [applicant’s] deprived upbringing reduces the moral culpability of the [applicant]”. [2]

43. [43]

    The sentencing Judge assessed the objective seriousness of the two offences of manslaughter to fall within the high range but not within the worst category of such cases. The undiscounted starting points for the indicative sentence of the manslaughter of AH was 11 years and 4 months and for Ms Gordon (‘the second count’) was 12 years. The difference in the undiscounted starting points of these indicative sentences is explained by the three related traffic offences taken into account pursuant to s 32 of the Crimes (Sentencing Procedure) Act for the second count. The maximum penalty for manslaughter is 25 years’ imprisonment.

44. [44]

    The sentencing Judge assessed the objective gravity of the aggravated dangerous driving occasioning grievous bodily harm to be within the upper end of the range of objective seriousness but not within the worst case. The undiscounted starting point of the indicative sentence was 6 years’ imprisonment. The maximum penalty for this offence is 11 years’ imprisonment.

45. [45]

    The applicant’s complaint on manifest excess focuses on the aggregate sentence, however, the indicative sentences may be a guide as to whether error is established. [3]

46. [46]

    Using the pattern of past sentencing as a yardstick, I am not persuaded that any of the indicative sentences are manifestly excessive. The length of the applicant’s journey was 6.4km, during which time he was very substantially impaired as a result of his alcohol consumption. His driving significantly exceeded the speed limit and was, as the sentencing Judge found, “erratic, aggressive and grossly negligent” [4] and demonstrated that “the [applicant] had completely abandoned his responsibility to other users of the road.” [5]

47. [47]

    In my view, the circumstances of the applicant’s offending called for a significant measure of general deterrence. I agree with the sentencing Judge’s remarks when his Honour said:

48. [48]

    Although the indicative sentences may not be manifestly excessive, it does not necessarily follow that the aggregate sentence is not excessive.

49. [49]

    The sentencing Judge carefully considered the question of accumulation, describing the approach that he would have taken if he had not utilised the aggregate sentencing provisions as follows:

50. [50]

    Questions of accumulation involve the exercise of discretion in which this Court is slow to intervene. [8] Furthermore, where an aggregate sentence is imposed this Court is unable to analyse issues of concurrence and accumulation in the same way as traditional sentencing structures. [9] In Burgess v R, [10] Hoeben CJ at CL (with whom Wright and Fagan JJ agreed) said at [40]:

51. [51]

    Although one episode of driving was involved, two innocent victims of the applicant’s offending were killed and the other seriously injured. To my mind, the extent of notional accumulation does not lead to the conclusion that the aggregate sentence is unreasonable or plainly unjust.

52. [52]

    By the sentencing Judge’s finding of special circumstances, the aggregate non-parole period was reduced to two thirds of the aggregate head sentence.

53. [53]

    The destruction of the lives and future aspirations of the innocent victims in the car being driven by AH was brought about by the applicant’s appalling conduct. The aggregate sentence of 15 years and the aggregate non-parole period of 10 years appropriately reflects the totality of the applicant’s criminality. The applicant’s sentence is not manifestly excessive.

54. [54]

    Accordingly, the orders I propose are:

    1. (1)

       Leave to appeal granted.

    2. (2)

       Appeal dismissed.

55. [55]

    HAMILL J: On 28 September 2018, Richard Moananu engaged in a course of grave and reckless criminal conduct that destroyed a number of lives including his own. He caused the death of two people, one of whom had viable and well-advanced twins in utero who did not survive, and the infliction of grave injuries on a third victim. He is now serving a very long sentence of imprisonment.

56. [56]

    Mr Moananu pleaded guilty to two counts of manslaughter and one count of aggravated dangerous driving occasioning grievous bodily harm. He also admitted three driving offences to be taken into account in sentencing on the second of the manslaughter counts. [11] Sentencing proceedings took place on 8 October 2020 in the District Court sitting at Penrith and Judge Buscombe imposed sentence on 5 November 2020 upon delivery of thoughtful and comprehensive reasons. Despite the plea of guilty, the applicant’s deep remorse, his deprived and dysfunctional childhood and other mitigating features, his Honour imposed an aggregate sentence of 15 years with a non-parole period of 10 years.

57. [57]

    Mr Moananu seeks leave to appeal against the aggregate sentence. He raises three related grounds that assert specific and identifiable legal error in Judge Buscombe’s approach to finding the facts and assessing the objective gravity of the offending, and one general ground asserting latent error and contending that the sentence imposed was manifestly excessive.

58. [58]

    It could not seriously be disputed that the sentence imposed on the applicant was an extremely heavy one. When one factors in the 25% discount for the early plea of guilty, the sentence is one approaching the kind of sentence imposed in many cases of murder. On the other hand, a survey of past cases does not readily disclose examples of vehicular manslaughter of greater objective seriousness. I have concluded that the sentencing Judge did not fall into the specific legal errors asserted by grounds 1, 2 and 3. However, the indicative sentences were very high while possibly falling within the wide range reserved to the discretion of the sentencing Judge and, once the degree of “notional” accumulation is taken into account, I am satisfied the aggregate sentence was manifestly excessive in the sense that it was patently unreasonable and unjust.

59. [59]

    I would grant leave to appeal, allow the appeal and impose an aggregate sentence of 12½ years with a non-parole period of 8 years and 4 months. These are my reasons for those conclusions.

The offences, pleas of guilty, indicative sentences and grounds of appeal

1. [60]

   Mr Moananu pleaded guilty to two counts of manslaughter contrary to s 18 of the Crimes Act 1900 (NSW). Each of those offences carry a maximum penalty of 25 years’ imprisonment. In relation to the second of the manslaughter counts, the sentencing Judge took into account three related traffic offences pursuant to s 32 of the Crimes (Sentencing Procedure) Act 1999 (NSW). Those offences were (1) misconduct by driving on the wrong side of the road and causing bodily harm to a fourth victim, (2) driving without a licence and (3) driving while cannabis was present in his blood.

2. [61]

   Mr Moananu also pleaded guilty to one count of aggravated dangerous driving occasioning grievous bodily harm, an offence created by s 52A(4) of the Crimes Act and carrying a maximum penalty of 11 years. The circumstance of aggravation was that he was driving while there was present in his blood a concentration of alcohol greater than the high range. The high range prescribed concentration of alcohol is 0.150g / 100ml of blood. Mr Moananu’s reading was .204 which, as noted by the sentencing Judge, is more than four times the legal limit (0.05) to drive in New South Wales.

3. [62]

   The offences were committed on 28 September 2018 in the course of a single episode of driving. A number of less serious offences before the District Court, pursuant to a certificate under s 166 of the Criminal Procedure Act 1986 (NSW), were withdrawn.

4. [63]

   Mr Moananu entered pleas of guilty during the committal process and was entitled to, and received, a 25% discount pursuant to the current legislative scheme. [12] Because the primary Judge imposed an aggregate sentence, the 25% reduction in the sentence was applied to the individual indicative sentences, rather than to the aggregate sentence. [13]

5. [64]

   The sentencing proceedings were heard on 18 September 2020. The prosecution tendered a bundle of material (Ex 1) which included a statement of agreed facts, the applicant’s criminal, traffic and custodial histories, three victim impact statements and a sentencing assessment report. A map of the route taken by Mr Moananu from the hotel where he had been drinking to the scene of the collision, and photographs of the cars destroyed in the crash, were also tendered (Ex 2 and 3). The victim impact statements were read. Counsel for the applicant tendered a bundle of documents including a sentence assessment report, two psychological reports, one psychosocial report, a report from a consultant physician, 13 character references, and three reports relating to the COVID-19 pandemic and its impact on Mr Moananu and his conditions of incarceration.

6. [65]

   Sentence was imposed on 5 November 2020. The aggregate sentence of 15 years was ordered to commence on 29 September 2018. The non-parole period will expire on 28 September 2028 with the balance of term to expire on 28 September 2033.

7. [66]

   Pursuant to s 53A(2)(b) of the Crimes (Sentencing Procedure) Act, and taking into account the 25% discount for the pleas of guilty, the sentencing Judge indicated the following individual sentences:

   1. (1)

      Manslaughter of AH – 8 ½ years.

   2. (2)

      Manslaughter of Katherine Gordon – 9 years.

   3. (3)

      Aggravated dangerous driving occasioning grievous bodily harm – 4 years and 6 months.

8. [67]

   This means the starting points for the three indicative sentences, before the application of the discount for the pleas of guilty, were 11 and 4 months, 12 years, and 6 years respectively. Judge Buscombe said there was to be a “reasonable level of accumulation … given the number of victims involved.” [14] The 15-year aggregate sentence imposed means, noting again that the discounts apply to the individual indicative sentences, [15] that the notional starting point was 20 years’ imprisonment.

9. [68]

   The applicant’s complaint of patent, specific or identified legal error concerns a finding of fact said not to be open on the evidence or in relation to which he was denied procedural fairness. This complaint lies behind grounds 1 and 2, and the applicant submits that the error infected Judge Buscombe’s assessment of the objective gravity, giving rise to ground 3. Ground 4 asserts, whether for that reason or for reasons which are unclear from the otherwise unchallenged judgment on sentence, the aggregate sentence is manifestly excessive. The grounds of appeal were couched in the following terms:

   1. (1)

      That his Honour erred in finding that the applicant “must always have intended that he would drive away from the hotel”.

   2. (2)

      That his Honour erred in failing to afford the applicant an opportunity to address on the issue of the applicant’s intention to drive away from the hotel.

   3. (3)

      That his Honour’s assessment of the objective seriousness of the offending was affected by grounds 1 and 2.

   4. (4)

      The combination of errors resulted in a sentence that was manifestly excessive.

The facts of the offences

1. [69]

   Apart from the issue which arose on the appeal under grounds 1-3, the facts of the offending were not in dispute and are set out in the statement of agreed facts and the judgment on sentence. [16]

2. [70]

   The applicant worked as a bricklayer but his job on 28 September 2018 was cancelled due to wet weather. He went with a colleague to the St Marys Hotel. The colleague left after a few hours while the applicant remained at the venue for more than 8 hours playing the poker machines and drinking continuously. The applicant said he became increasingly less aware of his state of intoxication and the amount he was drinking as the day went on. His memory of his decision-making was imperfect. By the time he left the hotel and got into his car to drive his blood alcohol level must have exceeded 0.2g / 100ml, noting the legal limit for driving is 0.05 and high range under the traffic legislation is 0.15. [17]

3. [71]

   At around 8pm, the applicant was observed to be driving in an erratic manner on Mamre Road in St Marys. He was weaving in and out of traffic and between lanes, narrowly avoiding a collision with another vehicle as he merged onto the M4 through three lanes of traffic and across a solid white line. The applicant was speeding on the M4 to a degree that one onlooker described as “ridiculous”. Others said he was “caning it” and “flyin”. The erratic driving continued once he turned south onto The Northern Road at Orchard Hills. A young family, including a pregnant mother expecting twins, with a 17-year-old learner driver (AH) at the wheel, was travelling north on the same road.

4. [72]

   There were roadworks on The Northern Road and clear signs indicating the roadwork and the reduced speed limit of 60km/h. The applicant was observed to be driving at excessive speed and tailgating other vehicles. He attempted to overtake another car, switching lanes when there was insufficient space and mounting the concrete median strip. His car rotated and became airborne. One witness said it was “the most craziest thing I have ever seen anyone do” and another observed “there was nowhere to go because there was a car there … that’s when he clipped the median strip”. Mr Moananu’s vehicle entered the northbound traffic and crashed head-on into the vehicle being driven by AH. The collision caused “catastrophic damage” with both cars coming to rest around 20 metres from the point of impact.

5. [73]

   To comprehend the degree to which the applicant abandoned responsibility that night, it is useful to study a marked up aerial photograph showing his route. The document was Ex 2 at the sentencing hearing:

6. [74]

   The evidence was that the erratic and dangerous driving continued over more than 6 km.

7. [75]

   AH, Katherine Gordon and both children in-utero were killed in the collision. The only surviving passenger, Bronko Hoang – the brother of AH, husband of Ms Gordon and would be father to the twins – sustained several extremely serious physical and psychological injuries. He requires ongoing treatment and monitoring.

8. [76]

   The applicant was trapped in his vehicle for some time before being conveyed from the scene to Westmead Hospital for leg injuries sustained in the crash. Police attended the hospital the following day and the applicant admitted that he had been at a hotel before he got in his vehicle and that he did not have much memory of what occurred immediately before the collision.

9. [77]

   Blood alcohol analysis established the applicant was driving with a reading of 0.204 mg / 100 ml reading. A pharmacologist, Dr Perl, provided an opinion that this would have resulted in a substantial impairment to the applicant’s ability to drive. There was also a positive result for cannabis but no opinion was provided as to the impact this may have had on the applicant’s driving.

10. [78]

    The impact on the victims was devastating. The 17-year-old learner driver sustained extensive head injuries, injuries to their torso and fractures to their lower limbs. He died at the scene. Ms Katherine Gordon, who was seated in the rear of the car, sustained bruising and abrasions to her chest and upper body. She suffered severe injuries to her abdomen including large lacerations with fragments of glass and seatbelt embedded into them. One of these wounds severed her uterus into two parts and fatally injured the twins with whom she was heavily pregnant.

11. [79]

    The surviving victim, Bronko Hoang, experienced a loss that is unimaginable and difficult to describe. He suffered an abdominal haemorrhage caused by a rupture to his colon necessitating several surgeries, a traumatic brain injury requiring a drain insertion, foot fracture requiring a reduction and pinning, reduced blood flow to his upper left limb, a collapsed lung and nerve damage resulting in diplopia (double vision). The traumatic brain injury resulted in persistent cognitive inefficiencies which prevent Mr Hoang resuming work and other activities in the same capacity. Mr Hoang has adjustment issues and post-traumatic grief requiring counselling and continuing care for his complex mix of needs resulting from the accident. [18]

12. [80]

    The factual dispute that played out on appeal under grounds 1, 2 and 3 concerned Judge Buscombe’s finding, which echoed the Prosecutor’s submission at first instance, that Mr Moananu “must always have intended that he would drive away from the hotel”. I will deal with that finding when dealing with the applicant’s submissions under those grounds.

The applicant’s personal circumstances and mitigating features of the case

1. [81]

   The applicant presented a sad and compelling subjective case. He gave evidence and tendered several references, some of which confirmed his childhood history of abandonment, familial violence, dysfunction, and exposure to alcohol. There were also expert reports explaining the impact of this abuse, the impact of the injuries he sustained in the car crash, and material relating to the impact of the COVID-19 pandemic on the applicant’s conditions of incarceration.

2. [82]

   The applicant was born in May 1989 and was 31 years old at the time of sentence, and 29 years old at the time of the offence. He was born in New Zealand of Samoan parents and came to Australia as a child.

3. [83]

   The applicant had a limited criminal record consisting of one offence of refusing a breath test in 2012 and another of damaging property in 2016. These were dealt with by fines and licence disqualification in the Local Court. The sentencing Judge acknowledged that, subject to a consideration of his traffic record, his lack of a serious criminal history “entitled him to some leniency”. [19]

4. [84]

   However, his Honour held that the traffic history “disentitles him to significant leniency given the nature of the offences for which he is to be sentenced.” [20] The sentencing Judge summarised the traffic history as follows:

5. [85]

   The approach taken by Judge Buscombe was not subject to criticism on appeal.

6. [86]

   There was evidence of the applicant’s remorse in the reports and testimonials and his evidence before Judge Buscombe. He said he constantly thought of the incident, caried immense regret, and wished that he had died in the collision himself:

7. [87]

   There was other evidence tendered on sentence that established the genuineness of the applicant’s remorse. For example, when he was interviewed by police in hospital, he volunteered “tell the family I’m sorry for what I’ve done.” [22] The applicant’s former partner saw the applicant two days after the incident and said in her letter to the Court:

8. [88]

   There was other evidence to similar effect. The sentencing Judge held:

9. [89]

   The evidence established that the applicant’s childhood was marred by violence, abandonment, exposure to alcohol abuse, and dysfunction. There was evidence of this in the expert reports and the letters provided to the Court by family members. The child protection file reviewed by the experts established frequent departmental contact with the family during this period. Mr Moananu’s uncle (Tanumafili Malietoa) said that welfare authorities removed Mr Moananu from his home at 7 years of age because of “domestic violence inflicted by Richard’s father and grandmother”. His removal from this home was not the end of the violence. He lived in various group homes and foster placements before being placed in his mother’s care at 10 years old. The applicant’s mother had re-partnered with another man prone to domestic violence who shared the mother’s alcohol and gambling addictions. The applicant was frequently beaten by this man. [24] His sister (Chantelle Faasavlu) described the violence:

10. [90]

    The neglect was extreme and included a lack of supervision and failure to provide food to the applicant and his younger siblings. The applicant recalled waiting for the adults to return from playing poker machines, unfulfilled promises to “bring home food” [25] and an incident where he and his brother were ridiculed for searching for food in the garbage bins at school. His former partner described the history including the applicant taking on the role of carer for his younger siblings when he was 11 years of age. This included bathing them, changing their nappies, feeding them and getting them ready for school. When his baby brother died while the applicant was caring for him, “the family blamed Richard”. This was in the year 2000 when the applicant was around 11 years old.

11. [91]

    There was a lot of evidence to this and similar effect tendered on sentence.

12. [92]

    The psychologist, Brian Bembrick, summarised the history in his report. He noted, amongst other things:

13. [93]

    Mr Bembrick found that, despite “this very troubled background”, Mr Moananu “displayed resilience as evidenced by a very strong work ethic over the years.” [26] Mr Bembrick also found the applicant was “struggling with a substance abuse [disorder] and gambling problem for which he had not sought professional help.”

14. [94]

    Another psychologist, Patrick Sheehan noted the report of:

15. [95]

    Mr Sheehan referred to the “modest criminal history” and said there was “no evidence of antisocial functioning or the type of reckless indifference to human life that is evident in the current offence”.

16. [96]

    While the sentencing Judge found that the applicant’s moral culpability was diminished due to his deprived upbringing, his Honour concluded that the moral culpability remained significant:

17. [97]

    The Sentence Assessment Report noted that the applicant left school after completing year 10, and remained in consistent employment including as a bricklayer and steel fixer. [28] Mr Sheehan reported additional details of the work history, which included employment at a fast-food outlet, as a furniture removalist, barman and panel-beater. The author also recorded the applicant’s work history in custody, which includes having worked as a laundry sweeper for several months at Long Bay Hospital and more recently in heavy engineering. [29]

18. [98]

    The applicant sustained the following injuries in the collision:

    1. (1)

       A mild traumatic brain injury;

    2. (2)

       External injuries to his lower limbs including a large wound to his right calf;

    3. (3)

       Lacerations to his face, scalp and upper limbs;

    4. (4)

       Abdominal tenderness and injury caused by his seatbelt;

    5. (5)

       A displaced fracture to his right thigh, which later required “revision nailing” of the femur due to the non-union of the fracture;

    6. (6)

       Non-displaced fracture to his left calf; and

    7. (7)

       Depressed fracture, rupture of ligament and injury to the lateral meniscus in his left knee, which required reconstruction and repair surgery.

19. [99]

    The leg injuries have resulted in persistent pain requiring management with analgesic medication and physiotherapy.

20. [100]

    A neuropsychologist, Dr Molly Schafer, found that despite the mild traumatic brain injury, Mr Moananu “did not demonstrate widespread impairment to his cognitive functioning”. There were some deficits in tasks “measuring concentration, verbal abstract reasoning and cognitive flexibility.”

21. [101]

    Dr Seamus Dalton, a physician in rehabilitation medicine, provided opinions concerning the ongoing treatment and disabilities arising from the applicant’s physical injuries. These included the likelihood of ongoing pain from his knee injury and difficulties in squatting and crouching. The applicant may develop arthritis from the knee injury. Assuming the fracture to the femur heals completely there was little likelihood of ongoing issues. Dr Dalton noted the applicant had developed a dependence on pain killers since the accident and indicated that pain management was complicated as a result.

22. [102]

    The sentencing Judge was circumspect in his assessment of the applicant’s prospects of rehabilitation. His Honour took the view that the applicant’s comments to Christopher Baker, who prepared a Sentence Assessment Report (‘SAR’), to the effect he did not have an alcohol problem revealed a lack of insight. [30] The applicant did admit that he had alcohol problems on other occasions and in evidence. However, Judge Buscombe said:

23. [103]

    The applicant tendered a report of Dr Andrew Ellis, consultant psychiatrist, and a study and supplementary report by four academics from the University of New South Wales which deals with the psychiatric and other impacts of the COVID-19 pandemic on inmates resulting from changes in the conditions of incarceration within NSW prisons. The sentencing Judge identified this evidence at the beginning of his judgment and referred to the applicant’s evidence that since March 2020 he had received no prison visits. Prior to that his family visited him regularly.

24. [104]

    Judge Buscombe said of COVID-19 and its relevance:

The sentencing judgment

1. [105]

   Judge Buscombe delivered a thorough sentencing judgment which encompassed the factual matters to which I have referred and identified correctly the applicable legal principles. Apart from the matters argued under grounds 1-3, no complaint was directed to his Honour’s legal reasons, factual findings, and remarks.

2. [106]

   His Honour found special circumstances and reduced the non-parole period to 66.66% of the aggregate sentence. His reasons were that this was the first time the applicant had been in custody, the compounding effects of COVID-19 and the need for in-community treatment of his alcohol problem. [32]

3. [107]

   The sentencing Judge found that although there were circumstances of aggravation within s 21A(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW), including the substantial harm caused, disregard for public safety and grave risk of death to others, these features would be accounted for in the determination of objective seriousness in order to avoid “double counting”. [33]

4. [108]

   The prosecution submitted that the offending was in the highest range of objective seriousness due to the level of intoxication, the speed driven at the time of the collision, the manner of driving prior to the collision and the length of journey and risk to other road users. The Prosecutor made the following submissions, the first of which is relevant to grounds 1-3:

5. [109]

   Counsel for Mr Moananu submitted that the offending fell within the mid-range and was significantly less serious than the worst category which might include:

6. [110]

   It was also submitted that descriptors of the extent of any “abandonment of responsibility” in cases of vehicular manslaughter do little more than restate the definition of an offence itself:

7. [111]

   His Honour referred to the guideline judgment on culpable driving in R v Whyte (2002) 55 NSWLR 252; [2002] NSWCCA 343 and to the observations in R v Borkowski [2009] NSWCCA 102; (2009) 52 MVR 528 concerning the much higher maximum penalty when an offence is charged as manslaughter. His Honour found:

8. [112]

   His Honour appeared largely to accept the position urged by the Prosecutor, concluding:

9. [113]

   In respect of the dangerous driving count, his Honour decided:

10. [114]

    No issue was taken on appeal with Judge Buscombe’s assessment of the objective gravity of the three offences as falling within the upper end of the range of objective seriousness but falling short of the worst case.

(3) His Honour’s assessment of the objective seriousness of the offending was affected by grounds 1 and 2.

1. [115]

   Following the approach taken by counsel on the hearing of the appeal, it is appropriate to deal with these grounds together. The factual finding upon which each is founded was as follows:

2. [116]

   This finding echoes the submission made by the Prosecutor set out above at [108]. However, it is not in precisely the same terms.

3. [117]

   The applicant submitted, orally and in writing, that his Honour must have meant that the applicant intended to drive having consumed alcohol. The applicant argued that this was not an inference available on the evidence and that it conflated an intention of attending the premises to gamble and then drive home, with an intention to drink alcohol and then drive home. The applicant further submitted that the failure to put the proposition to the applicant, or to raise the matter in the course of argument, amounted to a denial of procedural fairness.

4. [118]

   The respondent submitted that no such finding was made. Rather, the finding was that the applicant always intended to drive away from the premises, and had consumed a significant amount of alcohol in the interim. The respondent submitted that no evidence was led to the contrary and the finding was open to the sentencing Judge.

5. [119]

   The applicant consistently said that his reason for attending the hotel was to gamble in the hope that he would win some money. He said he was under financial strain and anxious about returning home to his partner without pay after his work shift was cancelled.

6. [120]

   In evidence, Mr Moananu disavowed that he intended to drink and drive. He said that he began drinking because he started to lose money on the poker machines:

7. [121]

   The applicant maintained this account in cross-examination:

8. [122]

   The applicant’s evidence was consistent with the history he provided to Mr Sheehan:

9. [123]

   To similar effect was his account to Mr Bembrick:

10. [124]

    Dr Schafer reported a similar version of the events:

11. [125]

    The applicant relied on the Prosecutor’s failure to cross-examine on the issue and on the fact that the “issue of the intention of the applicant to drive after consuming alcohol was not raised” in oral submissions. It was submitted “his Honour has endorsed a factor adverse to the to the applicant without giving the applicant the opportunity to be heard on the issue”.

12. [126]

    Contrast was made with the “approach endorsed” in Moodie v R [2020] NSWCCA 160; (2020) A Crim R 87, where this Court “had regard to the authority” of the High Court in R v Olbrich (1999) 199 CLR 270; [1999] HCA 54 in upholding a ground that an offender was denied procedural fairness.

13. [127]

    The circumstances in Moodie v R were quite different. That case involved a sentencing Judge departing from the agreed facts which included an assertion that dangerous driving involved a “momentary distraction” on the part of the offender. Bell P (as the Chief Justice then was) said at [33]:

14. [128]

    In the present case the sentencing Judge did not make findings contrary to the agreed facts. There was no agreement concerning the applicant’s intention to drive or when he formed that intention. Nor was there any acquiescence on the part of the Prosecutor to the version given by Mr Moananu. On the contrary, and as acknowledged by the applicant, the Prosecutor made a submission in writing that the “overwhelming inference is that [the applicant] always intended to drive his car home after consuming alcohol”. Given that submission, there was no denial of procedural fairness. The applicant had the opportunity at the hearing to give evidence and make submissions to the contrary. He did so, at least by inference, and it was not incumbent on the sentencing Judge to accept all of his evidence. Nor was it necessary for his Honour to provide a warning of any adverse finding that he might ultimately make after reserving judgment and considering the evidence and submissions.

15. [129]

    Further, there was a significant, if subtle, difference between the Prosecutor’s submission that the applicant always intended to drive “after consuming alcohol” and the sentencing Judge’s finding that the applicant “must always have intended that he would drive away from the hotel”. Judge Buscombe’s finding was open on logical inferences from the evidence of where the applicant was heading after leaving the hotel, and the fact that he drove to the hotel in the first place. The finding did not directly contradict the thrust of the applicant’s evidence that he did not generally drive when he had been drinking, that he did not intend to drink when he first went to the hotel, that he began drinking because he started losing money at the poker machines, or that he thereafter lost focus on how much alcohol he consumed.

16. [130]

    Finally, it is questionable whether the particular finding played any great role in informing the Judge’s assessment of the objective criminality of the offences. It may have played some part but, in the overall scheme of things, it was not a matter of great significance. Mr Moananu’s decision to drive was made when he must have been greatly affected by alcohol and his driving thereafter was, as Judge Buscombe described it, “disgracefully irresponsible.”

17. [131]

    Insofar as ground 3 is otherwise concerned with the Judge’s evaluation of the objective seriousness of the offences, the Court is constrained by the authority of Mulato v R [2006] NSWCCA 282 at [37] (Spigelman CJ) and [46] (Simpson J, as her Honour then was) and the many cases that have adopted the approach taken in that case to appellate interference with a sentencing Judge’s assessment of the objective criminality of an offence. [47]

18. [132]

    I discern no error in Judge Buscombe’s approach to an assessment of the objective seriousness of the offences either generally or by reference to the finding which the applicant attempts to impeach by his arguments under grounds 1 and 2.

19. [133]

    I would reject grounds 1, 2 and 3.

Ground 4: The combination of errors resulted in a sentence that was manifestly excessive.

1. [134]

   While the terms of this ground appear to link the complaint of latent error to the errors contended under grounds 1, 2 and 3, the applicant’s real complaint is that the aggregate sentence falls above a legitimate and discretionary sentencing range when all matters relevant to sentence are taken into account. [48] Counsel for the applicant drew the Court’s attention to several comparative cases, although it was acknowledged that no two cases are alike and that the test to be applied to a ground asserting manifest excess is a high one because the law allows the primary Judge a wide discretion in determining the appropriate sentence.

2. [135]

   The correct approach is well settled. In Markarian v The Queen (2006) 228 CLR 357; [2005] HCA 25, it was emphasised that there is “no single correct sentence” and that “a court of criminal appeal may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing judge exercised his or her discretion”. [49] Before intervention is warranted the Court must be satisfied that the sentence imposed is “manifestly unreasonable or plainly unjust”: Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [22] (Gaudron and Gummow JJ), [59] (Kirby J). As R A Hulme J held in Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 at [443]:

3. [136]

   Some of the important High Court authorities were summarised by this Court in Hughes v R [2018] NSWCCA 2 at [86]:

4. [137]

   In the case of a sentence imposed under s 53A of the Crimes (Sentencing Procedure) Act, the appeal is against the aggregate sentence, rather than the individual putative sentences indicated for the purpose of s 53A(2)(b). [50] However, those individual sentences “may be a guide to whether error is established in relation to the aggregate sentence” [51] and are “relevant because they provide some indication of the basis for the aggregate sentence.” [52] However, “the fact that the indicative sentences are excessive does not necessarily mean that the aggregate sentence is excessive.” [53]

5. [138]

   Both parties suggested it was appropriate to consider the starting points for the sentences indicated for each of the offences, prior to the application of the discount for the early guilty pleas. As I have said, the starting points were 11 years 4 months (count 1), 12 years (count 2) and 6 years (count 3). Further, in a case like the present, where the same discount is applied to each of the individual sentences, it is not inappropriate to consider the notional starting point of the aggregate sentence. [54] The mathematics of this, and its legal limitations, was explained by Leeming JA in Ibbotson (a pseudonym) v R [2020] NSWCCA 92 at [12]:

6. [139]

   Leeming JA went on to discuss the discretionary nature of decisions concerning whether sentences should be served concurrently or consecutively, when such sentences should be partly cumulative and partly concurrent, the principle of totality and the “implicit assessment of notional accumulation or concurrency” involved when an aggregate sentence is imposed. [55]

7. [140]

   The applicant submitted that having regard to other vehicular manslaughter cases involving objectively more serious conduct, the Court would conclude that the sentence imposed was manifestly excessive. The respondent submitted that the manner of driving in this case went beyond driving impaired by alcohol consumption and was “aggressive” in its own right, distinguishing it from the authorities upon which the applicant relies. [56]

8. [141]

   The parties referred the Court to a number of authorities said to support their competing arguments. In one of those cases, Smith v R [2020] NSWCCA 181; (2020) 93 MVR 345, Simpson AJA emphasised at [78]:

9. [142]

   That is so notwithstanding the wide range of circumstances and degrees of culpability that may be involved in imposing sentence for manslaughter: see the decisions mentioned in Nealon v R [2021] NSWCCA 286 at [22].

10. [143]

    In Smith, the offender pleaded guilty to one count of manslaughter and admitted three related counts being possession of cannabis, driving with cannabis in her system and driving with the high range concentration of alcohol. Simpson AJA said:

11. [144]

    The driving occurred on the Old Bar Road near Taree and one person was killed. The offender was sentenced in the District Court to 9 years’ imprisonment with a non-parole period of 6 years and 3 months. The starting point was 12 years prior to the discount (25%) being applied. The offender’s level of intoxication was comparable to that of Mr Moananu and the sentencing Judge made similar findings in respect of her deprived background, and its impact on her moral culpability, whilst still finding the culpability to be “high”. A survey of cases persuaded Simpson AJA (with whom Rothman J agreed) that the sentence was manifestly excessive. Bellew J also agreed, adding at [88] that “the applicant's driving was, quite simply, appalling” but that “the authorities to which this Court was referred by counsel for the applicant support a conclusion that the sentence imposed on the applicant is manifestly excessive.” [58] On appeal, this Court reduced the sentence to a term of 7 years and 6 months with a non-parole period of 5 years.

12. [145]

    The respondent distinguished Smith as a single-victim crime and on the basis that Mr Moananu drove aggressively for a long period and exposed more people to risk:

13. [146]

    The fact that Smith involved a single victim is relevant to a comparison with the total aggregate sentence, but the appropriate comparison is with the individual indicative sentences. Each of the individual manslaughter sentences indicated in the applicant’s case (8½ and 9 years respectively; with starting points of 11 years 4 months and 12 years) was significantly higher than that imposed on Ms Smith (7½ years after discount; a starting point of 10 years).

14. [147]

    In Woodbridge v R [2010] NSWCCA 185, the offender was “grossly intoxicated” when he collided with a concrete median strip rounding a right-hand curve on Pennant Hills Road and crashed into oncoming traffic. The offender was convicted after trial of one count of manslaughter and one count dangerous driving occasioning grievous bodily harm. The surviving victim suffered a stroke and was wheelchair bound. The offender’s blood alcohol reading level was higher than the applicant’s, around 0.277 mg / 100 ml. The incident occurred on a Wednesday afternoon and the offender drove for 9 km through a heavily built-up area including in the vicinity of schools and shopping centres. The offender presented evidence of ongoing psychiatric issues and put (unsuccessfully) a case of sane automatism to the jury. The offender was sentenced to 6 years’ imprisonment with a non-parole period of 4 years. The prosecution appealed against the inadequacy of this sentence and a majority upheld the appeal (McClellan CJ at CL and RS Hulme J; Davies J dissenting). The manslaughter sentence was increased to 7 years with a non-parole period of 4 years and the dangerous driving occasioning grievous bodily harm was increased to a fixed term of 3 years. The sentences were accumulated to the extent of 2 years so that the total effective sentence was one of 9 years with a non-parole period of 6 years. It must be noted, in making comparisons, that the offender in Woodbridge ran a trial and appealed against his conviction; no discount was applied to the sentences imposed on him.

15. [148]

    The respondent again sought to distinguish Woodbridge on the basis that it did not involve the sort of aggressive driving identified in the applicant’s case:

16. [149]

    While the distinction drawn by the respondent may be correct, the blood alcohol level was substantially higher that the applicant’s and the “starting point” (and end point) for the sentence imposed in Woodbridge is some 4 or 5 years lower than the starting point in each of the manslaughter sentences imposed on the applicant. The total sentence (9 years) imposed was less than half of the notional starting point (20 years) in the applicant’s case.

17. [150]

    The applicant also relied on Duncan v R [2012] NSWCCA 78, the circumstances of which were summarised by Simpson AJA in Smith at [73]-[75]:

18. [151]

    The respondent sought to distinguish Duncan on its facts because it involved a single vehicle collision and occurred on a country road exposing fewer people to risk. While that much is correct, Ms Duncan was aware that there was five young people in her own car, so the risk to the lives of others was obvious and immediate. She had taunted a most inexperienced driver to drive at outlandish speeds and then taken over driving, showing off by reaching a speed of 200 km/h when she was well aware of the lives she placed at risk. [61]

19. [152]

    The respondent referred to two recent cases of vehicular manslaughter, namely Crowley v R [2021] NSWCCA 45 and DPP v Abdulrahman [2021] NSWCCA 114; (2021) 96 MVR 309. These cases were relied on as examples of higher indicative sentences for manslaughter, prior to discounts being applied, although the sentence ultimately imposed in each of those cases was less severe than that imposed on the applicant.

20. [153]

    In Crowley v R, the intoxicated offender was travelling at a speed exceeding 140 km/h in a 70 km/h zone and was pursued by police but somehow evaded them. Some time later he was observed travelling against the flow of oncoming traffic, side-swiping several cars before colliding with the vehicle of the first victim who sustained minor injuries, and then continued into a head-on collision with another car, seriously injuring three passengers and killing one person. His speed was estimated to be 144 km/h in 80 km/h zone at the time of the collision. The sentencing Judge described the course of driving as “dangerous in the extreme and the driving manifested in abandonment of responsibility approaching the highest level”. [62] Mr Crowley sought to explain his driving on the basis that he was suffering from what was described as an anxiety disorder, panic attack or blackout. However, the sentencing Judge referred to this as “highly implausible” and noted that it was inconsistent with evidence that the applicant told police drove because he was going to see a mate. In relation to the manslaughter count, two further offences of causing actual bodily harm by misconduct in the charge of a motor vehicle were taken into account. There was a 25% discount for the plea of guilty. The sentencing Judge indicated individual sentences of 11 years (manslaughter) and 4 years 8 months (for each of three counts of dangerous driving occasioning grievous bodily harm). There was an aggregate sentence imposed of 14 years and 3 months with a non-parole period of 10 years. This Court declined to intervene although Basten JA described the sentence as “undoubtedly a severe one”.

21. [154]

    DPP v Abdulrahman was a prosecution appeal against the inadequacy of an aggregate sentence for manslaughter and driving while disqualified. The offence fell within, or approached, the “worst case” category. The offender was driving under the influence of methylamphetamine in an amount described as “toxic to potentially fatal”. He ran a red light and sped through an intersection adjacent to a primary school, striking and killing one child with his car and traumatising their 12-year-old friend who witnessed the accident. At the time of the incident, he was on an intensive corrections order (‘ICO’) for an offence of driving under the influence, a matter which demonstrated a continuing attitude of disobedience to the law and illuminated his moral culpability. The applicant pleaded guilty and received a 25% discount, although he displayed an attitude of indifference, and distinct lack of remorse, at the scene and in subsequent interactions with authorities. For the individual count of manslaughter this Court increased the sentence to 10 years and 1 month (with a starting point of 13 ½ years). There was a 3-month fixed term for the drive whilst disqualified offence and accumulation of 1 month. The result was an aggregate sentence of 10 years and 2 months with a non-parole period of 6 years and 10 months.

22. [155]

    In addition to those cases to which the parties referred, I have also considered the helpful survey of comparative cases in the judgments of Simpson AJA in Smith and Beech-Jones J (as the Chief Judge then was) in Abdulrahman.

23. [156]

    A case not referred to by either party is Spark v R [2012] NSWCCA 140. Apart from Crowley, it is the only case where the offender was subject to a total sentence of a similar magnitude to that imposed on Mr Moananu. Like Crowley, it was a case involving a high-speed police pursuit where the police were unable to cause the offender to desist from the highly reckless course of conduct. Mr Spark had broken into a house, taken the keys to a sports car (a Mazda RX8), and taken the car. There were offences of aggravated break and enter and take and use conveyance on a Form 1 attached to the first of two manslaughter charges, to which the offender pleaded guilty. The police pursuit involved the offender driving at speeds of around 185 km/h in an 80 km/h zone in wet and hazardous conditions. Police terminated the pursuit after 2.2 km and the offender continued to drive “flat out” through traffic for a further 3.2 km. He was weaving through traffic, crossing onto the wrong side of the road and at one stage driving at a speed of 130 km/h in a 60 km/h zone. On Windsor Road, at a point where it narrows to one lane in either direction, he was tailgating a vehicle, then crossed on to the wrong side of the road and collided “head on” with a vehicle occupied by a mother and her daughter, each of whom was killed. The offender was a chronic methylamphetamine user, had not slept for more than 40 hours, and expert evidence established that his driving ability would have been greatly compromised at the time of the collision. The offender had never held a driver’s licence and told police he had used about 3.5 g of “speed” each day in the month leading up to the collision. He was 25 years old at the time of sentence and was on parole at the time of the collision. He had a “significant criminal record” including “repeated offences involving the taking and driving of motor vehicles whilst unlicensed but also offences of violence including robbery in company and assault occasioning actual bodily harm.” [63]

24. [157]

    Mr Spark received a 25% discount for his plea of guilty although this (wrongly) may have included a component for remorse. [64] He was sentenced to 13½ years on the first count and 12½ years on the second count with non-parole periods of 9 years 9 months and 8 years 9 months respectively. There was partial accumulation (18 months) resulting in a total effective sentence of 15 years with a non-parole of 11 years and 3 months

25. [158]

    It needs hardly be said that no sentence imposed in another individual case is capable of establishing, or for that matter rebutting, an assertion of manifest excess in the aggregate sentence imposed on this applicant. The comparable cases, while not establishing the “range” appropriate to the case under consideration, may nevertheless assist in answering the applicant’s complaint that the sentencing discretion miscarried for reasons not apparent from the sentencing judgment. In Hilli v The Queen (2010) 242 CLR 520; [2010] HCA 45, it was said at [54]:

26. [159]

    However, as the judgments of Beech-Jones J in Abdulrahman and Simpson AJA in Smith demonstrate, a discerning analysis of the sentencing outcomes in comparable cases can illuminate the arguments in a case where the issue is whether a sentence is manifestly excessive or inadequate. While it is said often enough that a decision whether a sentence is manifestly excessive “is a conclusion”, [65] decisions in other sentencing cases provide a context in which that conclusion might be reached in a principled and consistent way.

27. [160]

    The two cases where aggregate (or total effective) sentences of the same or similar magnitude have been imposed were Crowley and Spark. What distinguishes those cases is the fact that both involved high speed police pursuits where the driving was so extraordinary and dangerous that the pursuing police were forced to terminate the pursuit. That is an unusual feature and one that is recognised as a particular aggravating circumstance in each of the guideline judgments on dangerous driving. [66] In each case it adds a layer of lawlessness to the conduct involved and highlights that the offender was on notice that their driving was dangerous. [67]

28. [161]

    I have also surveyed a large number of sentencing cases, mostly driving cases, involving a single course of criminal conduct occasioning the death or grievous injury to more than one victim. [68] I undertook this exercise to confirm (or refute) my instinctive impression that the degree of notional accumulation in the applicant’s case was unusually high for a case involving a single course of criminal conduct. The exercise confirmed my impression, although it also demonstrated that there are rare cases where a similar degree of accumulation was applied to the individual sentences. I do not suggest, and nor did the applicant contend, that the approach taken in the present case discloses legal error. Questions of concurrency and accumulation are to be considered within the wide discretion allowed to sentencing judges. [69] It must also be remembered that the question for this Court is whether the aggregate sentence is manifestly excessive and not whether the individual sentences can be so described, or whether the degree of notional accumulation was unjust or unusually high. However, where the indicative sentences are very high and there is a substantial degree of accumulation (be it notional or otherwise), the result may be that the total sentence finally imposed is manifestly excessive.

29. [162]

    The course of conduct undertaken by the applicant in the present case was outrageous and appalling. It threatened the lives of many road users and had a devastating impact on Mr Hoang and his family. The tragedy to that family is barely able to be imagined.

30. [163]

    On the other hand, the applicant presented a strong subjective case, demonstrated deep remorse from the day of the collision and received a 25% discount for his early plea of guilty.

31. [164]

    In my assessment, when comparison is made with sentences imposed in similar cases, the individual indicative sentences nominated by the sentencing Judge were very high. Assuming those sentences were within a legitimate discretionary range, they stretched that range to its limit. When the degree of notional accumulation is taken into account, and comparison is made to other cases, I am persuaded that the aggregate sentence imposed on the applicant was manifestly excessive.

32. [165]

    I would uphold ground 4 and allow the appeal.

Re-sentencing

1. [166]

   The applicant read three affidavits to be considered if the Court came to re-sentence. This included the applicant’s affidavit and two affidavits affirmed by his solicitor which annexed a number of prison case notes.

2. [167]

   The affidavits suggest the applicant remains “haunted by what [he] did” and is exhibiting symptoms of post-traumatic stress (as described in the gaol records) or suffering “panic attacks” (as the applicant refers to those symptoms). His behaviour in custody appears to be exemplary. He has undertaken courses and received positive work reports. He has engaged with a counsellor for 12 months and has found the process to be very helpful. The evidence allows the Court to take a more sanguine view to the applicant’s prospects of rehabilitation, although the sentence to be imposed must reflect the extraordinarily serious objective facts.

3. [168]

   I have essentially adopted the reasoning of the sentencing Judge and applied his Honour’s findings to the re-sentencing exercise. I agree with his Honour’s finding of special circumstances, the reasons for that finding, and with the proportion of the non-parole period to the aggregate sentence (about 66%).

4. [169]

   In exercise the sentencing discretion afresh, I suspect I have given greater weight to the applicant’s deprived and dysfunctional childhood and its impact on his moral culpability. I am also not persuaded that the applicant’s traffic record was so bad as to deny him significant leniency in the sentencing exercise, given its nature considered against the magnitude of the applicant’s offending on this occasion. His traffic record did not include any previous offences of drink driving and there was a limited number of previous speeding offences, and none of those involved speeding in excess of 20 km/h above the speed limit.

5. [170]

   I would indicate slightly lower individual sentences for the two manslaughter offences and the same individual sentence for the offence under s 52A(4) of the Crimes Act. There remains a significant amount of notional accumulation in the formulation of the aggregate sentence although not quite to the extent implicit in the aggregate sentence imposed by Judge Buscombe.

6. [171]

   Balancing the grave objective criminality against the personal circumstances of the applicant, and allowing the 25% discount to which the applicant is entitled in recognition of his early guilty plea, I would indicate the following individual sentences:

   1. (1)

      Manslaughter of AH – a sentence of 7½ years (being 10 years reduced by 25%).

   2. (2)

      Manslaughter of Ms Gordon, taking into account the three offences admitted by the applicant and included on the Form 1 – a sentence of 8 years and 3 months (being 11 years reduced by 25%).

   3. (3)

      Aggravated driving causing grievous bodily harm of Mr Hoang – 4½ years (being 6 years reduced by 25%).

7. [172]

   Like the sentencing Judge, in setting the aggregate sentence, I would allow a “reasonable” amount of notional accumulation to recognise the suffering and individual dignity of the three separate victims. However, the putative sentences remain substantially (if notionally) concurrent because this was a single episode of criminality. I would impose an aggregate sentence of 12½ years with a non-parole period of 8 years and 4 months.

Orders

1. [173]

   I would make the following orders:

   1. (1)

      Leave to appeal granted.

   2. (2)

      Appeal allowed.

   3. (3)

      Quash the sentence imposed in the District Court on 5 November 2020 and in lieu thereof:

   4. (4)

      Confirm the order for disqualification from driving made by the District Court.