R v Weldon

1. [1]

   DAVIES J: I agree with Yehia J.

2. [2]

   YEHIA J: The Director of Public Prosecutions (NSW) (“the Crown”) appeals against the sentence imposed on Mr Weldon (“the respondent”) by Anderson SC DCJ (“the sentencing judge”) in the District Court of New South Wales at Newcastle on 19 July 2024 pursuant to s 5D of the Criminal Appeal Act 1912 (NSW) (“Criminal Appeal Act”). The respondent was sentenced for one count of dangerous driving occasioning grievous bodily harm, contrary to s 52A(3)(c) of the Crimes Act 1900 (NSW) (“Crimes Act”) and one count of fail to stop and assist after vehicle impact occasioning grievous bodily harm, contrary to s 52AB(2) of the Crimes Act.

3. [3]

   Mr Weldon received a sentence of an aggregate term of imprisonment for 2 years and 4 months, to be served by way of an Intensive Correction Order (“ICO”). The maximum penalty for each offence for which he was sentenced is 7 years’ imprisonment. Neither offence is subject to a standard non-parole period. The sentencing judge applied a discount of 25 per cent to each of the indicative sentences to reflect the utilitarian value of the plea. After the discount, in respect of the dangerous driving offence, his Honour specified an indicative sentence of 2 years’ imprisonment, and for the fail to stop and assist offence, 9 months’ imprisonment.

Grounds of Appeal

1. [4]

   The Crown relies on amended Grounds of Appeal filed on 4 October 2024:

Circumstances of the Offending

1. [5]

   The facts upon which the respondent was sentenced are contained in a “Statement of Agreed Facts”. They can be summarised as follows.

2. [6]

   The respondent was born in June 1993 and was almost 29 years of age at the time of the offending. The victim was 20 years of age. The respondent, the victim, a mutual friend, and others visited the Hunter Valley from Sydney over the weekend of 11 June 2022.

3. [7]

   On 11 June 2022 at about 4:00pm, the three men attended at the Denman Hotel. The respondent was captured on closed-circuit television drinking eight and a half schooners of beer between 4:23pm and 8:37pm. The facts are silent as to whether the respondent continued to drink alcohol after 8:37pm. An incident occurred at the Denman Hotel and the respondent was asked to leave between 10:00pm and 11:00pm.

4. [8]

   Sometime after the incident, the respondent, the victim and their friend left the Denman Hotel. They went to the car park and the victim went to the driver’s side door of the respondent’s Mitsubishi Colt motor vehicle. The respondent said to the victim, “it’s my car, give me the keys or I’ll slap ya”. The victim handed the car keys over to the respondent. The respondent got into the driver’s seat. The victim sat in the rear driver’s side passenger seat. The friend sat in the front passenger seat. Both the respondent and the friend fastened their seat belts. The victim did not.

5. [9]

   The respondent commenced driving towards the farmhouse where the three were staying for the weekend, initially at what is described as a normal speed. However, after taking a wrong turn, the respondent began to drive more recklessly, at about 75 kilometres per hour, which was about 25 kilometres per hour above the recommended speed limit for that portion of the road.

6. [10]

   The respondent approached a right-hand bend near a railway crossing at speed. The motor vehicle drifted to the left. It then left the road and drove into a ditch, at which point the respondent lost control as he tried to swerve back onto the road. The vehicle hit three guideposts and a small warning sign, before mounting a raised bitumen section of the road and colliding with the front left side of a railway signal post. The vehicle became airborne and collided with a small wire fence, landing upside down with such force that its front grille was torn off and the left front wheel ripped away. The vehicle stopped 35 metres away from the end point of the skid mark which it had left on the road.

7. [11]

   The victim was found on the side of the road about 30 metres from the vehicle. A nearby resident heard the collision and called triple zero. The other passenger sustained a cut to his nose. The respondent was uninjured.

8. [12]

   As fire and rescue services were arriving at the scene, the respondent fled and returned to where the group had been staying.

9. [13]

   The victim was airlifted to Royal North Shore Hospital. He suffered and continues to suffer a large number of injuries. The most significant injuries were to his spinal cord, leading to his permanent paraplegia. The victim had a displaced shattered fractured right collar bone and fractures to his neck and back. He suffered a bilateral pulmonary contusion to his left and right ears, fractures to his sternum, a fracture to his clavicle and other lacerations. The victim is now paralysed from the chest down and requires ongoing 24-hour care. The injuries are catastrophic.

10. [14]

    As the respondent was not at the scene at the time emergency services arrived, a blood sample was not taken. Subsequent expert evidence estimates the respondent’s blood alcohol reading at the time of the incident would have been in the range of 0.148 g per 100 mL and 0.200 g per 100 mL, with the most likely blood alcohol calculation being around 0.174 g, which would place him in the high range for Prescribed Concentration of Alcohol (PCA) offences. This estimation appears to be based on the number of alcoholic beverages consumed by the respondent.

11. [15]

    The respondent ultimately presented to Muswellbrook Police Station the following day and participated in an electronically recorded interview, where he admitted to being the driver of the car and having been at the Denman Hotel for five hours before the incident. He admitted to drinking alcohol but told police he did not feel drunk. He also admitted to leaving the scene of the collision before police arrived.

12. [16]

    There was a factual dispute in the sentencing proceedings as to whether the respondent attended the police station the following day of his own volition or whether he attended under the strong urging of Mr Tony Hiraki, a friend of the respondent’s. Both the respondent and Mr Hiraki gave evidence. The sentencing judge found that both versions of the evidence could sit together to some degree. The sentencing judge ultimately found that the respondent needed Mr Hiraki to insist that the respondent speak to police but once committed to that course, the respondent spoke to police willingly, cooperated, and made full admissions regarding his involvement in the incident.

Remarks on Sentence

1. [17]

   The sentencing judge considered the guideline judgment for offences of dangerous driving in R v Whyte (2002) 55 NSWLR 252; [2002] NSWCCA 343 (“Whyte”). His Honour noted the common features that often arise in such cases, as identified in Whyte at [204]:

2. [18]

   Where the features described above are present, a guideline as to the appropriate penalty was promulgated as follows (Whyte at [214]):

3. [19]

   His Honour noted that a number of factors are set out in Whyte at [216]–[217] which may aggravate the objective seriousness of an offence. His Honour observed that the factors in the guideline judgment are not a checklist but merely describe a typical case. His Honour noted that these factors do not circumscribe the sentencing court’s discretion.

4. [20]

   Applying Whyte, the sentencing judge made the following observations and findings:

   1. (1)

      The respondent was 29 years old, which did not make him a young offender.

   2. (2)

      The respondent is a person of good character with no previous driving offences or other criminal offences.

   3. (3)

      The offending caused permanent injury to a single person who was known to the respondent.

   4. (4)

      There were no injuries to the respondent.

   5. (5)

      The respondent has shown genuine remorse.

   6. (6)

      The respondent entered an early guilty plea, which entitled him to a discount of 25 per cent on his sentence.

5. [21]

   His Honour considered the aggravating factors referred to in Whyte and noted the following:

   1. (1)

      The injuries to the victim in this matter were life changing.

   2. (2)

      Three peoples’ lives in the car were put at risk but no other members of the public were put at risk.

   3. (3)

      The speed was 50 per cent higher than the speed limit at that time on that road, “but at 75 kilometres per hour it would not be considered excessive”.

   4. (4)

      There was a significant degree of intoxication, over three times the legal limit.

   5. (5)

      The length of the journey was relatively short.

   6. (6)

      There was a failure to stop and render assistance, but this is a discrete offence for which the respondent has been prosecuted, so the sentencing judge did not take it into account as an aggravating consideration for count 1.

6. [22]

   The sentencing judge found that one of the most significant aggravating factors was the terrible injuries sustained by the victim. Another critical consideration was the respondent’s blood alcohol reading.

7. [23]

   The respondent gave evidence that he believed he may have killed the victim and that he fled the scene. His conduct made it impossible for police to obtain his blood alcohol reading at the time.

8. [24]

   The sentencing judge noted however that the respondent did not leave the scene until he was aware that emergency services were on their way and that the other passenger was remaining on scene, which “mitigated his conduct” in respect to count 2.

9. [25]

   The sentencing judge did not assess the objective seriousness of the offending by reference to a notional mid-point, noting that he was not required “to place on a spectrum from less serious to most serious where this matter falls on a range of objective seriousness”.

10. [26]

    The respondent gave evidence in the sentencing proceedings. He expressed remorse, stating that:

11. [27]

    In respect of how he felt after leaving the scene, the respondent stated:

12. [28]

    Later, when asked about the victim impact statement and the gravity of the impact on the victim, the respondent stated:

13. [29]

    The sentencing judge accepted the respondent’s expressions of remorse as genuine.

14. [30]

    The respondent recognised he had a significant problem with alcohol and gave evidence that he had attended Alcoholics Anonymous meetings and engaged with a psychologist.

15. [31]

    The sentencing judge expressed some scepticism about the respondent’s recourse to treatment, remarking that “[a]ll of this positive conduct appeared 18 months after the offence and shortly before the matter was listed for a hearing…”: at [51]. However, the sentencing judge accepted that the respondent had continued this treatment and had since taken on a role of responsibility within Alcoholics Anonymous. The sentencing judge stated that the respondent ought to be congratulated for his commitment to rehabilitation.

16. [32]

    The respondent was employed and had been promoted to the role of site supervisor.

17. [33]

    The respondent’s background was gleaned from the report of Ms Paige Cornell, Psychologist dated 28 August 2023. The respondent was born in Ireland. The respondent’s parents separated when he was young and his mother re-partnered a few years later. The respondent’s stepfather lived with him for a short time, but the relationship between the respondent’s mother and stepfather also ended.

18. [34]

    The respondent’s biological father struggled with problematic alcohol use which resulted in him being unpredictable and inconsistent in his conduct. His father often unexpectedly arrived at the house and would verbally abuse his mother. The respondent reported feeling scared of his father and stood up to him at around the age of 14 to protect his mother. The respondent and his father had minimal contact until his father died in 2018.

19. [35]

    The respondent had a close bond with his mother. They were financially disadvantaged and lived in social housing. The respondent reported to Ms Cornell that his mother would work two to three jobs at a time and that she would be out of home for long periods and that led him to be particularly self-sufficient and also care for his stepsister. Except for his father, the respondent did not disclose a family history of substance abuse, criminal behaviour, or mental health difficulties.

20. [36]

    The respondent completed high school and continued to college and studied construction management for a year. He did not complete that course and instead undertook a course in sports management. He started working full-time at around the age of 19 or 20.

21. [37]

    The respondent moved to Australia for a fresh start. His employment was terminated a few times in Australia due to poor work performance and non-attendance, associated with his problematic alcohol use.

22. [38]

    The respondent first drank alcohol at the age of 14. At around the age of 25, when his father died, the respondent’s alcohol intake escalated to daily use. The respondent used alcohol to manage his emotional state. He planned to reduce his alcohol consumption when he moved to Australia but in fact drank more.

23. [39]

    Ms Cornell opined that the respondent reported symptoms associated with anxiety, depression, and post-traumatic stress disorder. The respondent’s mental health deteriorated after the death of his father and further deteriorated after the death of a friend in Ireland.

24. [40]

    The respondent also witnessed a fatal car crash in his early twenties and reported experiencing some post-traumatic stress type symptoms that were exacerbated after the collision.

25. [41]

    Ms Cornell opined that the respondent’s psychological wellbeing had deteriorated significantly. Ms Cornell concluded that the respondent met the criteria for a Major Depressive Disorder and Alcohol Use Disorder from approximately 2018, including at the time of the offending. Ms Cornell stated that due to his poor coping with his depressive symptoms, the respondent developed a problematic pattern of alcohol use, ultimately leading to an untreated alcohol use disorder. She noted that the respondent demonstrated a deterioration in his functioning over the years prior to the offences due to poor coping with the loss of his father and the major depressive disorder which he had at the time. She found that he struggled to regulate and manage these feelings, resulting in the avoidance of those feelings by using alcohol.

26. [42]

    Ms Cornell found these conditions led to the respondent’s decision to drive under the influence, drive recklessly, and to flee the scene of the incident. She said this happened in the context of disinhibition associated with alcohol intoxication and impulsive decision-making without consideration for the consequences of his actions. Ms Cornell stated that his actions also need to be understood in the context of experiences of bullying, social difficulties, and a history of engaging in behaviours motivated by the desire to be accepted by his peers. His offending took place as a result of poor decision-making and in the context of wanting to be perceived positively by his peers, alcohol intoxication, and a lack of consequential reasoning.

27. [43]

    These factors, in the opinion of Ms Cornell, are superimposed on a greater functioning issue associated with poor mental health status. It is her opinion that the offences occurred because of an alcohol use disorder in the context of unresolved grief and a major depressive disorder. She concluded that his mental health condition would deteriorate significantly if he was admitted into custody due to the separation from his supports and exposure to harsh custodial conditions. She stated that the respondent has a history of suicidal ideation which is likely to be exacerbated in custody.

28. [44]

    Also before the sentencing judge was a report by Ms Maria Leontios, Psychologist dated 19 March 2024. The respondent began seeing Ms Leontios in order to address his anxiety, depression and grief. In Ms Leontios’ view, the respondent was committed to continuing the counselling. The respondent had seen Ms Leontios 22 times as at the date of the sentencing judgment.

29. [45]

    The sentencing judge also considered a report from Dr Christopher Lennings, Psychologist dated 26 March 2024. This report addressed the issue of delay between the offending and the respondent taking steps to stop drinking permanently, engaging with Alcoholics Anonymous and seeing a psychologist. Dr Lennings stated that people with substance abuse issues often take a significant amount of time before seeking treatment and that some people in fact never do. He concluded that the respondent’s delay in seeking treatment was neither unusual nor unexpected.

30. [46]

    The sentencing judge found that the biggest motivator in the respondent deciding to deal with his alcohol abuse problem seemed not to be the fact that his drink driving had rendered his friend a paraplegic but rather his impending sentencing date. His Honour however accepted that the respondent’s rehabilitative progress demonstrated a genuine desire to remain abstinent.

31. [47]

    The sentencing judge also had regard to the Sentencing Assessment Report authored by Ms Emily Bond dated 20 March 2024. It described the respondent as someone who poses a low risk of reoffending and as someone who is suitable for community service work of up to 21 hours per month.

32. [48]

    Also before the sentencing judge were letters from character referees and the respondent’s sponsor at Alcoholics Anonymous, Mr John Keogh. The sentencing judge found that the letters demonstrate that the respondent is someone who has struggled with alcohol in the past but who is now taking responsibility for his problem.

33. [49]

    The sentencing judge found that the respondent’s subjective case and mental health issues supported amelioration of the sentence and lessened his moral culpability.

34. [50]

    In respect of other mitigating factors, the sentencing judge accepted that the respondent has good prospects of rehabilitation, particularly if he abstains from alcohol. His Honour noted the respondent was remorseful, pleaded guilty, and has no prior criminal history nor traffic offences.

35. [51]

    His Honour noted that in accordance with s 21A(5AA) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the CSP Act), the respondent’s self-induced intoxication could not be considered as a mitigating factor.

36. [52]

    The sentencing judge took the respondent’s mental health into account as part of his strong subjective case and to better understand why he abused alcohol. His Honour accepted that the respondent’s mental health would make a custodial sentence harsher but did not reduce the weight to be afforded to general or specific deterrence. His Honour noted that sentencing for offences of this type operates as an important reminder to the community at large about the seriousness of drink driving offences. In these circumstances, it would make no sense for a sentence to be mitigated because the respondent has used alcohol to self-medicate, given that alcohol is the very thing that caused the offences to occur.

37. [53]

    The sentencing judge had regard to the respondent’s deprived childhood, major depression, and alcohol dependence, accepting that these factors had an impact on the respondent’s moral culpability. The sentencing judge did not, however, accept that these features reduced the objective seriousness of his criminality. The sentencing judge did not accept that the respondent’s decision to drink and drive was a reflection of childhood deprivation or any mental health issues.

38. [54]

    The sentencing judge had regard to the statement provided by the victim, which set out the ongoing devastation the collision has caused him.

39. [55]

    The sentencing judge also noted the comparable cases and sentencing statistics placed before the Court, however found the sample size was particularly small and observed that statistics say nothing about objective criminality or the subjective features.

40. [56]

    The sentencing judge considered accumulation, concurrency and totality, observing that the two offences required discrete punishment.

41. [57]

    The sentencing judge was conscious of the statement in Whyte that a custodial sentence will usually be appropriate unless the offender has a low level of moral culpability, as in the case of someone who demonstrated momentary inattention or misjudgement. His Honour assessed the respondent’s conduct as more than momentary inattention or misjudgement.

42. [58]

    The sentencing judge concluded that both rehabilitation and general deterrence were of critical importance in this matter. Given the steps the respondent had taken to address his alcohol abuse in the community, the sentencing judge found that full-time detention was unlikely to address the respondent’s risk of reoffending and would interrupt his rehabilitation. His Honour found that community safety would be facilitated by the respondent completing his rehabilitation. His Honour concluded that an ICO would better serve community safety than full-time imprisonment. The sentencing judge placed conditions on the respondent designed to ensure his ongoing rehabilitation and the protection of the community.

Crown Appeals

1. [59]

   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 (“Green”) at [1] (per French CJ, Crennan and Kiefel JJ) quoting Griffiths v The Queen (1997) 137 CLR 293; [1977] HCA 44 at 310 [53] (per Barwick CJ). The purpose of Crown appeals against sentence extends to setting aside manifestly inadequate sentences to ensure uniformity of sentencing in order to maintain public confidence in the administration of justice: Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 (“Dinsdale”) at [61]–[62] citing Everett v The Queen (1994) 181 CLR 295; [1994] HCA 49 (“Everett”) at 306.

2. [60]

   In Kramer v R; R v Kramer [2023] NSWCCA 152, McNaughton J (Davies and Hamill JJ agreeing) said:

3. [61]

   In a Crown appeal against sentence, the Crown is required to satisfy two tests. These two tests were described in R v Hernando (2002) 136 A Crim R 451; [2002] NSWCCA 489 as follows (per Heydon JA, Levine J and Carruthers AJ agreeing):

4. [62]

   Firstly, an error of the kind identified in House v The King (1936) 55 CLR 499 at 505; [1936] HCA 40, must be established in the sentencing judge’s discretionary decision.

5. [63]

   Secondly, the Crown must negate any reason why the residual discretion of the Court not to interfere should be exercised: CMB v Attorney-General (NSW) (2015) 256 CLR 346; [2015] HCA 9 at [34] (per French CJ and Gageler J) and [56] (per Kiefel, Bell and Keane JJ) quoting R v Hernando at [12] (per Heydon JA, Levine J and Carruthers AJ agreeing). The discretion is residual only in that its exercise does not fall to be considered unless an error of the kind identified in House v The King is established: CMB v Attorney-General (NSW) at [33] (per French CJ and Gageler J) and [54] (per Kiefel, Bell and Keane JJ). Once the discretion is enlivened, it remains incumbent on the Crown as the appellant under s 5D to demonstrate that the discretion should be exercised: CMB v Attorney-General (NSW) at [33] (per French CJ and Gageler J).

Ground 1: The sentencing judge erred in finding that the moral culpability of the respondent was lessened

1. [64]

   The Crown submitted that the sentencing judge erred by finding that the respondent’s deprived childhood, major depression and alcohol dependence impacted the respondent’s moral culpability: R v Weldon [2024] NSWDC 313 at [76] and [82].

2. [65]

   The Crown submitted that the effect of his Honour’s findings was to take into account the respondent’s self-induced intoxication as a mitigating factor, contrary to s 21A(5AA) of the CSP Act.

3. [66]

   Notwithstanding the sentencing judge’s overt acknowledgement of s 21A(5AA) in his Honour’s remarks on sentence, the Crown submitted that by drawing on the respondent’s alcohol dependence to make a finding that moral culpability was diminished, his Honour was in substance taking self-induced intoxication into account, in combination with other factors, as reducing the respondent’s moral culpability.

4. [67]

   The Crown further submitted that the nature and the extent of the issues in the respondent’s childhood and the respondent’s mental health issues were not such as to diminish the respondent’s moral culpability.

5. [68]

   The Crown relied on the observation of Simpson J (Adams and McCallum JJ agreeing) in Aslan v R [2014] NSWCCA 114 at [34] that it does not follow that, because an offender suffers from some mental impairment or disability, his or her moral culpability is reduced. The sentencing court must examine the relevant facts in order to determine whether the mental condition has the consequence contended for. The Crown submitted that in this case, the matters referred to by the sentencing judge did not justify a finding that the respondent’s moral culpability was lessened.

6. [69]

   The respondent submitted that in concluding that the respondent’s moral culpability was reduced, his Honour considered the respondent’s subjective case and personal circumstances, including his background of having had an abusive alcoholic father, unresolved grief, and a history of suicidal ideation. The respondent submitted that his Honour was also relying on the report by Ms Cornell which found that the respondent met the criteria for a Major Depressive Disorder and Alcohol Abuse Disorder from 2018.

7. [70]

   In oral submissions, Ms Evers on behalf of the respondent, submitted that the sentencing judge acknowledged that self-induced intoxication is not a mitigating factor. Instead, his Honour adopted Ms Cornell’s opinion that it was the combination of all the identified factors, not just the respondent’s intoxication, that operated to reduce, at least to some extent, the respondent’s moral culpability. It was submitted that in this case, the assessment of moral culpability was a nuanced assessment, and the sentencing judge ultimately had regard to the combination of factors in the respondent’s deprived background.

8. [71]

   Section 21A(5AA) of the CSP Act stipulates that self-induced intoxication cannot be taken into account as a mitigating factor in sentencing. The section provides:

9. [72]

   Although the self-induced intoxication of the offender at the time the offence is committed is not a mitigating factor, evidence of past trauma, related substance abuse, and expert evidence about mental health conditions such as substance use disorder, is relevant to an offender’s subjective case. In some circumstances, those factors may materially impact on a sentence in a number of ways including in the reduction of moral culpability.

10. [73]

    That statement of principle is uncontroversial. In R v Millwood [2012] NSWCCA 2, Simpson J (Bathurst CJ and Adamson J agreeing) said:

11. [74]

    This is not a case where the sentencing judge determined that the respondent’s intoxication at the time of the offending was not self-induced. In the remarks on sentence, his Honour summarised the psychologist report provided by Ms Cornell. His Honour found as follows.

12. [75]

    His Honour then had specific regard to s 21A(5AA) under the heading “Mitigating factors”.

13. [76]

    His Honour continued:

14. [77]

    The respondent did not argue that his intoxication at the time of the offending was not self-induced. Instead, he relied upon his deprived background which included his excessive alcohol use and related mental health conditions as part of his subjective case, arguing that his deprived background operated to reduce his moral culpability.

15. [78]

    The sentencing judge was cognisant of the prohibition encapsulated in s 21A(5AA). His Honour did not take into account the self-induced intoxication of the respondent at the time of the commission of the offence as a mitigating factor. Instead, his Honour had regard to the interplay between the respondent’s mental health issues and his alcohol addiction, and the respondent’s deprived childhood, as features of his “strong subjective case”. His Honour was entitled to take into account that history in assessing the respondent’s moral culpability.

16. [79]

    I am not persuaded that his Honour’s approach demonstrates error. Ground 1 has not been made out.

Ground 2: The sentencing judge erred by considering whether an Intensive Correction Order should be made before considering the length of the sentence of imprisonment to be imposed

1. [80]

   The Crown submitted that the sentencing judge erred in that after his Honour was satisfied that no penalty other than imprisonment was appropriate, without first determining the length of the sentence of imprisonment to be imposed, his Honour turned to consider whether an ICO should be imposed.

2. [81]

   The Crown conceded that ex tempore judgments should be considered with a degree of latitude, but submitted that even allowing for this, his Honour determined that an ICO should be imposed prior to determining the length of the sentence of imprisonment that was warranted.

3. [82]

   The Crown submitted that this case presents a meaningful opportunity to provide guidance to sentencing courts as to the correct approach to be taken when a sentencing court is considering the imposition of an ICO.

4. [83]

   The respondent submitted that there is no evidence that the sentencing judge erred by considering whether an ICO should be made before determining the length of the sentence of imprisonment.

5. [84]

   During oral submissions, Ms Evers submitted that the three-step approach to the imposition of a sentence of an ICO is well-known. Ms Evers also submitted that the sentencing judge referred to Stanley v Director of Public Prosecutions (NSW) (2023) 278 CLR 1; [2023] HCA 3 (“Stanley”), albeit in relation to a different sentencing principle. Ms Evers submitted that while his Honour did not delineate the three steps he had taken, the totality of the evidence including the sentencing judge’s clear awareness of Stanley supports a finding that his Honour did not fall into error in this respect.

6. [85]

   There is abundant guidance available to sentencing judges with respect to the proper approach to the imposition of an ICO.

7. [86]

   In Stanley, the majority of the High Court clearly set out the three steps to be undertaken by a sentencing court in considering the imposition of an ICO. Firstly, a determination that no sentence other than a sentence of imprisonment is appropriate. Secondly, a determination of the appropriate term of the sentence of imprisonment. Thirdly, where the issue arises, consideration of whether to make an ICO: at [59].

8. [87]

   Subsequently, this Court in Zheng v R [2023] NSWCCA 64 reaffirmed that whether an offender is to be sentenced to a term of imprisonment and if so, for what term, are questions that must be answered prior to any consideration of whether or not to impose an ICO: at [270].

9. [88]

   Gleeson JA (Hamill and Ierace JJ agreeing) helpfully set out the necessary steps as follows:

10. [89]

    Indeed, prior to Stanley, guidance on the correct approach was provided as early as R v Zamagias [2002] NSWCCA 17 (“Zamagias”). The Court set out the proper approach at [26]: “[h]aving determined that there is no other penalty appropriate other than a sentence of imprisonment, the court is next to determine what the term of that sentence should be … [t]he determination of the term is to be made without regard to whether the sentence will be immediately served or the manner in which it is to be served. This is because any of the alternatives available in respect of a sentence of imprisonment can only be considered once the sentence has been imposed…”.

11. [90]

    The sentencing judge in this case clearly set out the first of the three steps in his Honour’s remarks on sentence: R v Weldon [2024] NSWDC 313 at [89]. However, his Honour did not explicitly set out his consideration of the second step, namely the term of imprisonment to be imposed, before his Honour turned to the question of whether an ICO should be imposed.

12. [91]

    In the proceedings on sentence, the sentencing judge made the following remarks to counsel for the respondent:

13. [92]

    Shortly after, his Honour said the following:

14. [93]

    Later in the proceedings, the following exchange took place between his Honour and the Crown:

15. [94]

    The above exchanges indicate that his Honour was alive to the proper three-step approach to the imposition of an ICO. His Honour referred to Stanley in his remarks on sentence (albeit with respect to the forward-looking approach to community safety, rather than with respect to the three steps outlined above): at [92].

16. [95]

    Although his Honour should have explicitly set out the three-step approach in his remarks on sentence, I am not persuaded that his failure to do so demonstrates error and would therefore reject Ground 2.

Ground 3: The sentence imposed was manifestly inadequate

1. [96]

   Under this ground, the Crown submitted that having regard to all of the relevant factors including the objective gravity of the offences, the length of the aggregate sentence imposed is manifestly inadequate.

2. [97]

   Whilst acknowledging that sentencing judges are to be allowed as much flexibility as is consonant with the application of proper principle and consistency of approach, the Crown emphasised that the maximum penalty for each of the two offences was 7 years’ imprisonment, which represents an “important yardstick or guidepost” for sentencing courts. The Crown relied on Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [27] and [31] in this respect. The Crown submitted that bearing in mind the objective gravity of the offences, against this guidepost, the aggregate sentence is manifestly inadequate.

3. [98]

   The Crown submitted that notwithstanding the respondent’s relatively strong subjective case, there was a “substantial disconnect” between the objective seriousness of the offences and the indicative sentences. The Crown submitted that neither the need for general deterrence and denunciation, nor the objective seriousness of the offences, were appropriately reflected in the sentence.

4. [99]

   The Crown pointed to the respondent’s significant intoxication and the fact he was driving in excess of the speed limit and with an unrestrained passenger at the time of the offending. The Crown also pointed to the “catastrophic nature of the injuries sustained by the victim”. The Crown submitted that these matters were not appropriately reflected in the indicative sentence.

5. [100]

   For the above reasons, the Crown submitted that the aggregate sentence is unreasonable or plainly unjust.

6. [101]

   Secondly, the Crown submitted that the manifest inadequacy of the aggregate sentence was compounded by the sentencing judge’s order that the sentence be served by way of ICO. The Crown submitted that the decision to impose an ICO seems to have focused exclusively on the respondent’s rehabilitation and community safety to the exclusion of all other factors.

7. [102]

   The Crown submitted that the order that the sentence be served by way of an ICO failed to adequately punish the respondent, fell short of recognising the harm done to the victim and the community, and failed to give effect to the need for denunciation and general deterrence in sentencing for offences such as these.

8. [103]

   The respondent, relying on Zamagias at [32], submitted that “although the purpose of punishment is the protection of the community, that purpose can be achieved in an appropriate case by a sentence designed to assist in the rehabilitation of the offender at the expense of deterrence, retribution and denunciation”. In all the circumstances, and having regard to all relevant factors, the respondent submitted that the sentence was not manifestly inadequate.

9. [104]

   In R v Sara [2020] NSWCCA 119, this Court set out the principles applicable to Crown appeals asserting manifest inadequacy. Harrison J stated as follows (Bathurst CJ and Hoeben CJ at CL agreeing):

10. [105]

    Manifest inadequacy is a conclusion that does not depend upon identification of specific error. A sentence may be “inadequate or excessive because the wrong type of sentence has been imposed (for example, custodial rather than non-custodial) or because the sentence imposed is manifestly too long or too short”: Dinsdale at [6] (per Gleeson CJ and Hayne J).

11. [106]

    Manifest inadequacy is revealed by “consideration of all of the matters that are relevant to fixing the sentence”, including the circumstances of the offending and the personal circumstances of the offender: Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [60] (per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).

12. [107]

    It is well-established that a term of imprisonment to be served by way of ICO is a “substantial punishment”, but as with all sentencing options which do not involve immediate incarceration, may also reflect “a significant degree of leniency”: R v Pogson; R v Lapham; R v Martin (2012) 82 NSWLR 60; [2012] NSWCCA 225 at [108] (per McClellan CJ at CL and Johnson J, RA Hulme and Button JJ agreeing, Price J dissenting) quoting Whelan v R (2012) 228 A Crim R 1; [2012] NSWCCA 147 at [120] (per Schmidt J, Allsop P and Davies J agreeing).

13. [108]

    It was accepted in the Court below and in this Court that the respondent has a “strong” or “very strong” subjective case. He demonstrated genuine remorse. He was assessed as posing a low risk of reoffending and having good prospects of rehabilitation. He has remained abstinent. He has no prior convictions and was found to be a person of good character. The respondent’s mental health issues and the challenges he faced in his childhood were appropriately taken into account in reducing his moral culpability.

14. [109]

    Notwithstanding the respondent’s compelling subjective case, the objective gravity of the offences, particularly Sequence 1, rendered the sentence manifestly inadequate in my view. The respondent lost control of the vehicle he was driving when he was significantly intoxicated and driving in excess of the speed limit.

15. [110]

    The respondent’s likely blood alcohol concentration was about 0.174 g per 100 mL, although, as conceded in the sentence proceedings, the respondent was entitled to be sentenced on the basis that his blood alcohol concentration was 0.148 g per 100 mL. That reading placed him just below the prescribed concentration of alcohol provided for in s 52A(9) of the Crimes Act and just below the threshold at which the respondent would have been liable for the aggravated form of the offence.

16. [111]

    Although the sentencing judge did not find that excessive speed constituted an aggravating factor, it is relevant to the objective gravity of the offence. In addition, the respondent was driving the car with an unrestrained passenger.

17. [112]

    The sentencing judge was undoubtedly correct to reject the submission put on behalf of the respondent that the driving offence was the product of momentary inattention or misjudgement. It was far from that, and constituted a very serious example of a s 52A(3)(c) offence.

18. [113]

    The respondent left the scene of the collision in circumstances where he was clearly aware that the victim was seriously injured. The offending constituting Sequence 2 is less serious than the driving offence. The respondent did not leave the scene until he was aware that emergency services were on the way. However, his decision to flee meant that the police were unable to obtain an accurate blood alcohol reading from him.

19. [114]

    It is well-established that the indicative sentences are not themselves amenable to appeal, although they may be a guide as to whether there is error in the aggregate sentence. Furthermore, even if the indicative sentences are assessed as being inadequate, it does not necessarily follow that the aggregate sentence is manifestly inadequate: JM v R (2014) 246 A Crim R 528; [2014] NSWCCA 297 (“JM”) at [40] (per R A Hulme J, Hoeben CJ at CL and Adamson J agreeing); R v Hill [2020] NSWCCA 197 at [105] (per Price J, Garling and Wright JJ agreeing).

20. [115]

    Notwithstanding that important qualification, I accept the Crown’s submission that an examination of the indicative sentences, and particularly the indicative sentence for Sequence 1, reveals that the sentencing discretion miscarried. The principal focus of the determination of the ground of manifest inadequacy is, however, whether the aggregate sentence reflects the totality of the criminality involved: JM at [40]. Having regard to the objective seriousness of the driving offence, it is my view that the aggregate sentence does not reflect the totality of the criminality involved. I am satisfied that the Crown has made out its contention that the sentence is manifestly inadequate. However, such a finding is not the end of the matter. Even where a sentence is erroneously lenient, the Court retains a residual discretion to decline to interfere with sentence.

Residual discretion

1. [116]

   The Crown submitted that the Court should not exercise the residual discretion not to interfere with the sentence. The Crown submitted that there was no delay in the institution of the appeal or in notifying and serving the respondent.

2. [117]

   The Crown also submitted that the Crown did not contribute to the manifest inadequacy of the sentence. The Crown maintained that an ICO was not appropriate throughout the sentencing proceedings.

3. [118]

   In respect of the contention that resentencing may adversely affect the respondent’s progress towards rehabilitation, the Crown made the following submissions:

4. [119]

   The Crown further submitted that allowing the “manifestly inadequate” sentence to stand would undermine the need for denunciation, punishment, protection of the community and recognising the harm done to the victim, and may undermine public confidence in the administration of justice.

5. [120]

   The respondent submitted that in light of his significant rehabilitation, the residual discretion should be applied. The respondent further submitted that the sentencing judge’s decision recognised, consistent with Stanley, that community safety is a paramount consideration in granting a non-full time custodial sentence. The respondent submitted that given his history of vulnerability and mental health issues, together with his commitment to rehabilitation, an ICO is better directed to community safety than a full-time custodial sentence.

6. [121]

   Even if error is established in a Crown appeal, the Court can decline to exercise the discretion to vary the sentence (the residual discretion): Green at [1]. Section 5D(1) of the Criminal Appeal Act provides:

7. [122]

   In CMB v Attorney-General (NSW), Kiefel, Bell and Keane JJ stated at [54]: “[w]here error … is established in an appeal by the prosecution, the Court of Criminal Appeal may in its discretion dismiss the appeal notwithstanding that the sentence is erroneously lenient.” (Emphasis added).

8. [123]

   The onus is on the Crown to “exclude any reason” for the Court to exercise the residual discretion not to interfere with the sentence: R v Rose [2024] NSWCCA 193 at [48] (per Campbell J, Harrison CJ at CL and Sweeney J agreeing); CMB v Attorney-General (NSW) at [54] (per Kiefel, Bell and Keane JJ). The Crown must persuade the Court to intervene: CMB v Attorney-General (NSW) at [36] (per French CJ and Gageler J) and [66] (per Kiefel, Bell and Keane JJ).

9. [124]

   There is ample authority for the proposition that even where a sentence is erroneously lenient, a court may decline to interfere with the sentence particularly where to do so would be to disrupt the respondent’s rehabilitation.

10. [125]

    In Green, French CJ, Kiefel, Heydon and Crennan JJ stated as follows:

11. [126]

    In R v Greaves [2014] NSWCCA 194, the respondent was convicted of one count of dangerous driving causing grievous bodily harm and four related summary offences, including fail to stop and assist after impact causing injury. The respondent was 21 years of age at the time of the offence. The respondent had consumed alcohol in the hours prior to the offence. The respondent was driving above the speed limit. The utility driven by the respondent collided with a vehicle travelling in the opposite direction, causing the respondent to lose control of the utility. The victim and one other passenger were unsecured in the rear tray of the utility. The utility ran over a culvert which caused the rear tray passengers to be thrown from the vehicle onto the nature strip. The respondent saw the victim lying motionless on the ground, panicked because he knew he was not permitted to drive under his bail conditions, and left the scene of the accident, driving to a friend’s house. The respondent parked the utility and then returned to the scene of the accident on foot. The victim was left a paraplegic.

12. [127]

    The respondent was sentenced to imprisonment for 19 months and 17 days to be served in the community by way of ICO. The Crown appealed. There were nine grounds of appeal. Relevantly, those grounds included that the sentence for the offence of dangerous driving occasioning grievous bodily harm was manifestly inadequate and that the sentencing judge erred in ordering that the sentence be served by way of ICO.

13. [128]

    The appeal was dismissed (except insofar as it related to the period for which the respondent was disqualified from driving). Hoeben CJ at CL (Beech-Jones Hamill JJ agreeing) held that the sentencing judge erred in his Honour’s assessment of the respondent’s moral culpability and the objective seriousness of the offending, which led his Honour to impose a sentence which was manifestly inadequate: at [55]. However, his Honour continued:

14. [129]

    In R v Manok [2017] NSWCCA 232, the Crown appealed against the sentence imposed on the respondent after he pleaded guilty to two charges of dangerous driving occasioning death and one charge of dangerous driving occasioning grievous bodily harm. The respondent was 25 years old. The respondent was the driver of a car that ran off the road and collided with a telegraph pole, leading to the death of the 63-year-old male front passenger and the 15-year-old male rear passenger seated behind the front passenger. The remaining two passengers were injured, one of them suffering grievous bodily harm. The evidence adduced established that the respondent fell asleep at the wheel before the collision occurred. The respondent was sentenced to imprisonment for two years, to be served by way of ICO.

15. [130]

    The Crown’s appeal against sentence was unanimously dismissed, albeit for different reasons.

16. [131]

    McCallum J found that the sentence imposed was not manifestly inadequate. Her Honour then continued, with respect to the Court’s residual discretion:

17. [132]

    Payne JA found that the sentence was manifestly inadequate. However, his Honour exercised the residual discretion to decline to interfere with the sentence. His Honour stated:

18. [133]

    In determining whether the sentence was manifestly inadequate, Wilson J noted:

19. [134]

    However, her Honour declined to interfere with the sentence. Her Honour concluded:

20. [135]

    In R v Pullen (2018) 275 A Crim R 509; [2018] NSWCCA 264 (“Pullen”), the respondent pleaded guilty to one count of dangerous driving occasioning grievous bodily harm and one count of failing to stop and assist after impact causing grievous bodily harm.

21. [136]

    The respondent was 23 years of age at the time of the offending. He had consumed alcohol and cannabis on the date of the offending. After driving the victim home to retrieve his wallet, the respondent was driving the two of them back towards the tavern where he had been drinking earlier in the evening. The respondent drove through a road works zone which had posted a speed limit of 40km/h. The road surface was wet as it had been raining. The victim observed a semi-trailer with its hazard lights on parked in a dead lane which had been blocked off by traffic cones. Road workers observed the respondent to be driving well over the speed limit. The victim advised the respondent to slow down. The respondent changed gears, which caused the wheels to lock up and the vehicle to slide into the dead lane. The respondent slammed on the brakes as the vehicle approached the semi-trailer. The victim unbuckled his seat belt and jumped towards the driver’s side in an attempt to avoid the full impact of the collision. The vehicle collided with the offside corner of the semi-trailer causing significant damage to the front near side of the vehicle and trapping the victim’s leg. The victim sustained significant injuries and required surgery.

22. [137]

    After the collision, the respondent attempted to run from the scene. He was stopped by the road workers. When the police arrived, the road workers released the respondent, and he attempted to run away again, before being apprehended by the police.

23. [138]

    The respondent was sentenced to imprisonment for 15 months to be served by way of an ICO. The Crown appealed on the sole ground that the sentence was manifestly inadequate. The respondent heavily relied on his subjective case, which included his father’s ill health and subsequent death, his alcohol and drug abuse, which he contended needed to be viewed in light of him being a young man without parental support who did not handle his father’s death well, and his significant steps towards rehabilitation, including full-time employment and counselling for his alcohol and drug issues.

24. [139]

    Harrison J stated:

25. [140]

    His Honour concluded that “Mr Pullen’s subjective case, although compelling, does not warrant the degree of leniency afforded to him. This is particularly so for offences of this nature where the need for general deterrence tends to outweigh considerations of remorse or rehabilitation”: at [44].

26. [141]

    With respect to the second offence of failure to stop and assist, his Honour said that the indicative sentence did not “reflect the distinct criminality involved in failing to stop and assist and [did] not give sufficient weight to considerations of general deterrence and denunciation”: at [52].

27. [142]

    His Honour concluded that the aggregate sentence imposed at first instance was manifestly inadequate.

28. [143]

    In Pullen, the legislative scheme governing ICOs was amended between the sentencing judgment and the hearing of the appeal. The new scheme decreased the number of mandatory conditions attached to ICOs and allowed the Court to impose further conditions which are appropriate in the circumstances of the particular case: Pullen at [61]–[64].

29. [144]

    As the sentencing judge did not impose any additional conditions, Harrison J found that Mr Pullen would only be subject to the standard conditions and a condition requiring him to undertake a minimum of 32 hours of community service per month. His Honour accepted the Crown’s contention that the commencement of the new scheme afforded, to a small extent, additional leniency to Mr Pullen. While this did not go to whether the Crown had established error, or whether the sentence was manifestly inadequate, it was found to be relevant to determining whether the residual discretion should be exercised.

30. [145]

    His Honour found that the statement in R v Pogson; R v Lapham; R v Martin that ICOs involve substantial punishment was premised on the existence of onerous mandatory conditions which imposed significant restrictions upon an offender’s liberty. His Honour went on to find that “[t]he degree of punishment involved in an ICO, and therefore its appropriateness in a particular case, must now be assessed having regard to the number and nature of conditions imposed”: at [66].

31. [146]

    The respondent pointed to the fact he had completed 50 hours of community service in compliance with his ICO whilst also working full-time. The Crown conceded that the imposition of an ICO at first instance is a factor militating in favour of applying the residual discretion. The respondent also contended that the public interest is best served by avoiding a situation where a relatively young man, who came late to the labour market as a result of tragic circumstances in his life, has his employment and path to rehabilitation, disrupted.

32. [147]

    The Court allowed the appeal and proceeded to resentence Mr Pullen to an aggregate sentence of imprisonment for 3 years to be served by way of an ICO.

33. [148]

    Harrison J made the following findings with respect to the suitability of an ICO:

34. [149]

    In determining whether to exercise the residual discretion, this Court can look at the facts available at the time of hearing the appeal, including events that have occurred since the sentence proceedings: R v Reeves (2014) 243 A Crim R 559; [2014] NSWCCA 154 at [19] (per Bathurst CJ, Hall and R A Hulme JJ); R v Deng (2007) 176 A Crim R 1; [2007] NSWCCA 216 at [28] (per James J, Mason P and Hislop J agreeing).

35. [150]

    In the present case, in addition to the sentencing judge’s summary of the respondent’s subjective case and his rehabilitative efforts, further material has been provided to this Court by way of an update about the respondent’s progress.

36. [151]

    A letter by Mr John Keogh dated 21 November 2024 confirms that the respondent has attended four Alcoholics Anonymous meetings per week, received his nine-month sobriety chip and was on track to receive his one-year sobriety chip as at the date of the letter. The respondent completed a term as Assistant Treasurer, served three months as Treasurer, and is now the Chairperson for the Maroubra Monday Beginner’s Meeting. The respondent also assists in setting up for the Tuesday Night Waverly Men’s Breakthrough. Mr Keogh described the respondent as a “role model for young people coming into AA”.

37. [152]

    A report by Ms Maria Leontios, Psychologist dated 19 November 2024 states that the respondent commenced treatment on 10 February 2024 to address his anxiety, depression, grief and relapse prevention for alcohol use. Ms Leontios states that the respondent had attended 32 sessions as at the date of the report. Ms Leontios further states:

38. [153]

    Whilst the sentencing judge acknowledged the not insignificant delay in the respondent seeking treatment and commencing rehabilitation, the evidence before the District Court and this Court demonstrates a sustained commitment to his rehabilitation.

39. [154]

    It has now been over two and a half years since the offending conduct and seven months since the respondent was sentenced at first instance. The new evidence placed before the Court confirms the respondent’s sustained commitment to rehabilitation and compliance with his ICO. The respondent has completed over 100 hours of his community service.

40. [155]

    The progress the respondent has made in the community is not only of a personal benefit to him but, importantly, protects the community and meaningfully addresses specific deterrence. The respondent’s rehabilitation would be interrupted, and in my view, potentially derailed if he were now sentenced to a term of full-time imprisonment. That would produce an injustice.

41. [156]

    I reject the Crown’s submission that there is no reason to assume or conclude that the respondent’s progress towards rehabilitation will be frustrated by the imposition of a term of full-time imprisonment. It has long been recognised that rehabilitation is better facilitated in the community. Indeed, it has long been recognised that rehabilitation in the community is “inextricably linked to community safety” and that disrupting an individual’s rehabilitation in the community may produce an injustice.

42. [157]

    In Green, the High Court provided examples of circumstances that may produce injustice if a Crown appeal is allowed:

43. [158]

    In R v Speechley (2012) 221 A Crim R 175; [2012] NSWCCA 130, this Court said (per Johnson J, McClellan CJ at CL and Hammerschlag J agreeing):

44. [159]

    In Pullen, on resentencing, Harrison J noted that community safety is the paramount consideration in determining whether an ICO should be imposed. His Honour then stated:

45. [160]

    His Honour then quoted from the Second Reading Speech to the Crimes (Sentencing Procedure) Amendment (Sentencing Options) Bill 2017 at [88]:

46. [161]

    In Mustafa v R [2021] NSWCCA 164, Rothman J (McCallum JA and Ierace J agreeing) stated with respect to the above extract of the Second Reading Speech: “[f]or those involved in the criminal justice system, the foregoing comment by the Attorney General is well-established”: at [128].

47. [162]

    R v Merillo [2017] NSWCCA 173 was a Crown appeal against sentence that considered whether the imposition of an ICO for a period of two years in the circumstances was manifestly inadequate. The Court found that the sentence was manifestly inadequate. In exercising the residual discretion, Hoeben CJ at CL (R A Hulme J agreeing, Garling J dissenting) said:

48. [163]

    R v Cahill [2015] NSWCCA 53 was a Crown appeal against sentence where the Court found that a sentence of two years of imprisonment to be served by way of ICO was manifestly inadequate. However, the Court considered the respondent’s “very substantial progress” towards rehabilitation and exercised the residual discretion to decline to intervene with the sentence. The respondent was engaged with a residential transformation centre in the community and had taken steps towards a leadership position at the centre in a volunteer capacity.

49. [164]

    Johnson J (Leeming JA and Schmidt J agreeing) found:

50. [165]

    Two significant factors militate against interfering with the sentence. First, the respondent has completed a substantial component of his community work. His compliance with the community work component reflects his determination to pursue his rehabilitation and his understanding that he must take his punishment seriously.

51. [166]

    Second, the respondent’s determination to remain abstinent and continue counselling and treatment demonstrates the extent of his rehabilitation. It is in the public interest that his rehabilitation be allowed to continue in the community.

52. [167]

    In reaching this conclusion I have not lost sight of the objective seriousness of the offences, especially the offence of driving dangerously causing grievous bodily harm, and the terrible injuries suffered by the victim. Nor have I lost sight of the fact that in sentencing for offences of this type, strong denunciation and general deterrence have always been recognised as very important. My acceptance that the sentence is erroneously lenient reflects my views in that regard.

53. [168]

    However, in Crown appeals on sentence, even where a sentence is erroneously lenient, the Court retains a residual discretion to decline to interfere with the sentence. For the reasons outlined above, this is a case where I would exercise the residual discretion to decline to interfere with the sentence under s 5D of the Criminal Appeal Act and dismiss the appeal.

54. [169]

    Accordingly, I propose the following order:

    1. (1)

       Crown appeal dismissed.

55. [170]

    R A HULME AJ: I agree with Yehia J that Grounds 1 and 2 should be rejected but that Ground 3 should be upheld for the reasons her Honour has provided. I respectfully disagree that the Court should refrain from interfering with the sentence in the exercise of the residual discretion.

56. [171]

    It is uncontroversial that the Court has such a discretion and that it may be exercised having regard to a wide variety of relevant factors, some of which are referred to in her Honour’s judgment. The following cases refer to some other matters which the Court has referred to in this context.

57. [172]

    In R v Dunlop [2001] NSWCCA 435, Wood CJ at CL (with whom Studdert and Bell JJ agreed) found error in sentencing for one count of dangerous driving causing death and one count of dangerous driving causing grievous bodily harm, including that the sentence should have involved full-time imprisonment rather than periodic detention. This was notwithstanding the respondent was aged 21 at the relevant time, had no prior criminal history and had subjective features which the Crown conceded were “as good as they could be”. His Honour then turned to consider (at [48]) “whether the Court should in the exercise of its discretion, and by reference to the principles of double jeopardy …, intervene.” (The double jeopardy consideration was subsequently abolished by the insertion of s 68A in the Crimes (Appeal and Review) Act 2001 (NSW) in 2009.)

58. [173]

    His Honour concluded that the Court should intervene but in a limited respect, namely, to increase the non-parole period. The need for intervention was said (at [51]) to be appropriate to “… underline the significant element of general deterrence that was otherwise lacking in the sentence, and provide a measure of punishment which more appropriately reflects the moral culpability of the respondent”.

59. [174]

    R v Kyle [2014] NSWCCA 300 concerned sentencing for aggravated dangerous driving (with a blood alcohol level of 0.206g/100ml) which resulted in the infliction of grievous bodily harm on the victim with permanent debilitating effects. The sentencing judge described the injuries as “catastrophic”; the victim was permanently wheelchair-bound and continued to suffer considerable pain and discomfort. The respondent was aged 27 and found to be “fully and genuinely remorseful” as well as “traumatised and scarred” by the incident. He had no prior convictions but had a history of binge drinking and was diagnosed with “chronic alcohol abuse”. He was suffering depression at the time of the incident as a consequence of a recent break up with his girlfriend.

60. [175]

    In determining that the Court should intervene and resentence, Adams J (Macfarlan JA and Hidden J agreeing) took into account that the sentence would be “but moderately increased” (in fact from 3 years to 4 years, 6 months) and there would be no injustice to the respondent. He added (at [31]):

61. [176]

    In R v Harris [2015] NSWCCA 81 at [64]-[68], Adamson J (Basten JA and myself agreeing) concluded that the residual discretion ought not be exercised because there had been no delay in relation to the appeal (it was instituted, heard and determined in about the same time frame as the present matter); there was no fault on the part of the Crown that contributed to the occurrence of error; and the sentence was manifestly inadequate and “… a substantial increase [was] warranted.”

62. [177]

    In R v Price [2016] NSWCCA 50 at [123]-[124], Button J (Gleeson JA and Fagan J agreeing) determined that the Court should proceed to resentence because:

63. [178]

    R v Pullen (2018) 275 A Crim R 509; [2018] NSWCCA 264, a case to which Yehia J has referred, concerned substantially the same offences as the present. Harrison J’s reasoning that the Court should not decline to exercise the residual discretion (with which Johnson and Schmidt JJ agreed) included (at [58]):

64. [179]

    R v Russell [2022] NSWCCA 294 was a Crown appeal in respect of an aggregate sentence imposed for two counts of dangerous driving occasioning death and one count of dangerous driving occasioning grievous bodily harm. McNaughton J (Kirk JA and N Adams J agreeing) found error in the assessment of a matter relevant to the objective seriousness of the offences and concluded the sentence was manifestly inadequate. As to whether the residual discretion to decline intervention should be exercised, she said (at [113]-[114]):

65. [180]

    This is not an exhaustive review but most of the matters taken into account in these cases are relevant to the exercise of the residual discretion in the present case in addition to the subjective features referred to by Yehia J.

66. [181]

    There is obviously no general rule governing whether the residual discretion should be exercised according to the presence or absence of particular factors. The cases merely provide examples of matters the Court has considered.

67. [182]

    Matters personal to a respondent may have significance but the extent by which they do must depend upon a consideration of all of the circumstances of the case. Those circumstances will include the nature of the offence; its objective seriousness; the sentence imposed; and the extent by which the sentence was outside the legitimate range of sentencing discretion, in other words, the extent by which it is manifestly inadequate.

68. [183]

    The seriousness of the respondent’s offences has been referred to in the judgment of Yehia J. I agree that the dangerous driving offence is a very serious example of its type. The history of the respondent’s abuse of alcohol is such that he must have realised his daily level of consumption was excessive. On the day in question, he consumed a substantial quantity of alcohol but nonetheless insisted on driving.

69. [184]

    As to the grievous bodily harm element, there has been brief reference to the severe nature of the injuries sustained by the victim, Mr Biddle. A more complete appreciation of the extent of that severity is available from the following description in his victim impact statement of the practical consequences from his perspective.

70. [185]

    Mr Biddle also said that he had spent 12 months in hospital; his parents and brother have cared for him since; he has experienced significant emotional and psychological harm; he is constantly depressed and upset and experiences continuous physical pain; he has abandoned his carpentry apprenticeship and his hopes for going into business with his brother; he receives a modest weekly insurance payment instead; his former active social life is substantially diminished; and his main interaction is with his family. He concluded his statement by saying that he did not have any ill feeling towards anyone and just wanted to get better and live a good life. (While the latter is to his credit it is not a matter relevant to the assessment of sentence: McGonigle v R [2020] NSWCCA 84 at [120] (Johnson J).)

71. [186]

    In respect of the offence of failing to stop and assist contrary to s 52AB(2) of the Crimes Act 1900 (NSW), I do not understand the finding by the primary judge that it was a mitigating factor that the respondent did not leave the scene until he was aware that emergency services were on the way or had arrived, and that he did so mindful of the fact that the other passenger remained on the scene. Regardless of that awareness, leaving the scene avoided the consequence of being breath tested and having his criminal culpability revealed. Fleeing was cowardly and reprehensible as the respondent conceded in his evidence.

72. [187]

    I do not cavil with any of the findings made in respect of the respondent’s subjective case.

73. [188]

    There was a need for sentences to be assessed for the individual offences that were proportionate to their objective gravity: R v McNaughton (2006) 66 NSWLR 566; [2006] NSWCCA 242 at [15] (Spigelman CJ). There was also a need to be mindful of the legislative guidepost of the maximum penalty prescribed by Parliament for each of the offences, that being imprisonment for 7 years.

74. [189]

    In addition to rehabilitation of the offender, most of the other purposes of sentencing listed in s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW) were also relevant. There was a need to ensure there was adequate punishment; to make the offender accountable for his actions; to denounce his conduct; and to recognise the extreme harm that was caused. General deterrence was of undoubted and particular importance. All of these matters are in the “public interest”. Their combined force outweighs the extent to which there is also an interest in the respondent’s rehabilitation.

75. [190]

    The sentence imposed by the primary judge failed sufficiently to reflect these matters to such an extent that it is manifestly inadequate. It is so unreasonable and plainly unjust that it amounts to an affront to the administration of justice and there is a need for correction to maintain public confidence in the criminal justice system: Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 at [69]. A decision by this Court to refrain from correcting this state of affairs primarily because of the personal circumstances of the respondent and a perceived public interest in his rehabilitation is not one with which I can agree.

76. [191]

    The fact that the respondent has completed a substantial component of his community work under the intensive correction order is also relied upon in support of this Court declining to intervene. However, as indicated by Beech-Jones CJ at CL in R v FF [2023] NSWCCA 186 at [80], “that can be accommodated by a partial backdating of any sentence imposed by this Court”. There the respondent had been sentenced on 15 December 2022; the appeal was heard on 30 June 2023; and judgment was handed down on 26 July 2023. In quashing the intensive correction order and imposing an aggregate sentence of 4 years the Court backdated the sentence by about 3 months to 21 April 2023.

Resentencing

1. [192]

   I propose that after allowance is made for the early pleas of guilty there would be sentences of 3 years and 1 year, 6 months respectively. Being mindful of the principle of totality, there should be an aggregate sentence of imprisonment for 3 years, 9 months.

2. [193]

   Pursuant to s 44(2B) of the Crimes (Sentencing Procedure) Act, there should be a finding of special circumstances to provide for a longer period of supervision to enhance the respondent’s continued rehabilitation in the community following release on parole.

3. [194]

   The circumstances in this case are a little different to those in R v FF. The time between the appeal being heard and judgment being handed down has been greater because of the intervening vacation period. I am prepared to assume in the respondent’s favour that he has continued to comply with his obligations under the intensive correction order, including performance of community service. I would allow full credit for the time during which he has served the intensive correction order by backdating the sentence to the date of sentencing in the District Court.

4. [195]

   I propose the following orders which, because they will not take effect, need not be specified in all technical respects:

   1. (1)

      Allow the Crown appeal against sentence.

   2. (2)

      Quash the sentence imposed in the District Court on 19 July 2024.

   3. (3)

      In lieu, sentence the respondent to an aggregate term of imprisonment for 3 years and 9 months with a non-parole period of 2 years and 6 months dating from 19 July 2024.