R v Bortic

HOEBEN CJ at CL:

The respondent was driving a car containing three passengers after a night at a tavern. The respondent’s car failed to negotiate a sweeping right-hand bend and collided with a tree. The respondent had a blood alcohol reading of at least 0.183 (high range) and was travelling at a speed in excess of 45 kilometres over the speed limit, which was 50 kilometres per hour.

On 7 October 2020 in the District Court at Newcastle, Ellis DCJ sentenced the respondent to an aggregate non-parole period of 2 years and 9 months (to expire on 6 July 2023) and an aggregate head sentence of 6 years (to expire on 6 October 2026). The respondent’s non-parole period represents 46 per cent of his head sentence. The respondent received a 25 per cent discount for the utilitarian value of his pleas of guilty. The maximum penalty for the offence of aggravated dangerous driving occasioning death is 14 years imprisonment. The maximum penalty for an offence under s 53 is 2 years imprisonment.

There was a related offence on a s 166 certificate of driving a motor vehicle with an illicit drug present in his blood contrary to s 111(1)(a) of the Road Transport Act 2013 (NSW) which his Honour dealt with under s 10A of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the Sentencing Act), convicting the respondent but imposing no other penalty. His Honour disqualified the respondent from driving for four years.

The Director’s Notice of Appeal was filed and served on 10 December 2020.

A table summarising information relevant to the charges, the subject of the aggregate sentence, including the maximum penalties and indicative sentences (before and after discounts) is set out below. None of the charges attracts a standard non-parole period.

By Amended Notice of Appeal, the Director appeals on the following grounds:

The respondent was sentenced on the basis of a statement of agreed facts. The offences occurred at Salamander Bay, New South Wales on 13 April 2018, when the respondent was aged 31. The respondent worked in the building industry and principally resided in Queensland, where he held a driver’s licence. In April 2018, he was working at a building site in Salamander Bay and residing with fellow workers in a town house at the Horizons Golf Club.

During the afternoon and evening of Thursday 12 April 2018, the respondent consumed an unknown quantity of alcohol at a private residence in Salamander Bay before travelling to the Salamander Bay Tavern with several work colleagues. CCTV depicted the respondent arriving at the tavern at around 10:30pm and leaving at around 12:37am (on 13 April 2018). While present at the tavern, the respondent appeared to consume two or three alcoholic drinks. Also present at the tavern were five of the respondent’s work colleagues - Jamie Ward, Lauri Juerman, Reece Ashe, Matthew Wiperi and Gordon McRandle.

The respondent drove from the tavern in his vehicle, a white Mazda 3 hatchback, with Mr Ward seated in the front passenger seat, Mr Ashe in the rear onside passenger seat, and Mr Juerman in the rear on the driver's side. All of the occupants were affected by alcohol.

Mr Wiperi was driving a second vehicle with Mr McRandle sitting in the front passenger seat. Mr McRandle was significantly affected by alcohol. Mr Wiperi was also affected by alcohol.

The agreed facts indicate that the respondent was either intending to drive to his accommodation approximately two kilometres from the tavern, or to Mr Wiperi's residence in Soldiers Point, approximately five and a half kilometres away.

When the two vehicles left the tavern, the respondent was first to leave. By the time Mr Wiperi had pulled out, another vehicle was between Mr Wiperi’s vehicle and the respondent’s vehicle. Almost immediately after both vehicles left the tavern, Messrs Wiperi and McRandle observed that the respondent was “driving fast”.

The vehicle between Mr Wiperi and the respondent turned off the road. Mr Wiperi caught up to the respondent, who by then had driven past the turn off to his accommodation. When Mr Wiperi began to catch up with the respondent’s vehicle, he flashed his lights and may have also activated his horn. The respondent was observed by Messrs Wiperi and McRandle to “accelerate away”. In his recorded statement to police, Mr Wiperi described the respondent’s driving at this point in the following terms:

In his statement to police, Mr McRandle said:

The agreed facts state that the observations of Messrs Wiperi and McRandle as to speed “are not relied upon in support of any particular calculation of the offender’s speed” (Agreed facts 13 and 15).

A subsequent analysis of the airbag data from the respondent’s vehicle revealed that in the five seconds before the collision, the respondent’s vehicle was travelling at speeds of up to 136km/h with 100 per cent application of the engine throttle. The agreed facts state that the indicated speed readings from the airbag data involved a margin of error and did not necessarily reflect the precise speed the vehicle was travelling. However, “It is accepted by the offender that he was travelling “in excess of 45km/h” over the posted speed limit”. The posted speed limit where the collision occurred was 50km/h.

The collision occurred on Soldiers Point Road, near the intersection of George Road (south), at approximately 12:50am. At this time it was dark, the weather was fine and the surrounding areas were dry. The particular stretch of road where the collision occurred separates the residential areas of Salamander Bay and Soldiers Point. There is a largely industrial area on one side of the road and bushland on the other. Traffic travelling generally north travels along a predominantly straight and level section of the road. The road leads to a slight right hand bend, then straightens and continues past the collision location. The road provides one lane for traffic travelling north and one lane for traffic travelling south, separated by white painted double unbroken lines. Both lanes are bordered by single white painted lines which lead to bitumen shoulders.

Upon approaching the slight right-hand bend at the intersection of George Road (south), the respondent failed to negotiate the bend. The respondent’s vehicle impacted the concrete kerb and guttering on the north-western side of George Road, mounted the kerb and travelled along the grassed footpath area for approximately 35 metres. During this time, the rear passenger side impacted with a treated pine post in a glancing manner. The front of the vehicle then impacted heavily with a large tree located approximately 6.8 metres west of the western kerb of Soldiers Point Road, and the vehicle rotated in an anti-clockwise direction before coming to rest close to the tree. As a result of this:

A blood sample was taken from the respondent at hospital at 3:25am on 13 April 2018, which subsequently returned a positive reading for alcohol of 0.183g/100mL. This sample also returned a positive reading for drugs, namely, Delta-9-terahydrocannabinol (<0.001 ml/L) and Delta -9-THC Acid (0.005 mg/L) (related offence on s 166 certificate). An additional blood sample was taken at 6:11am that day, which returned a positive reading for alcohol of 0.106g/100mL.

An expert report by Dr Judith Perl opined that the respondent’s blood alcohol concentration (BAC) at the time of the collision would not have been lower than 0.183g/100mL. Using a “back-calculation”, the lowest of the readings estimated by Dr Perl was that the respondent’s BAC would have been 0.217g/100ml at the time of the collision. A defence report by Dr Christie McDonald estimated the respondent’s BAC at between 0.183g/100ml and 0.228g/100ml. The agreed facts state “[t]he precise reading at the time of the collision is therefore uncertain, but it was at least 0.183 g/100ml”. Dr Perl further opined that the extremely low THC and delta-9-THC acid levels found in the respondent’s blood did not suggest recent use of cannabis – merely usage at some much earlier time – and that it would not have caused any impairment of the respondent’s driving ability.

A subsequent examination of the respondent’s vehicle found no mechanical defects which would have contributed to the collision. On 20 April 2018, the respondent, on legal advice, declined to take part in a formal electronic interview. He was charged by way of a Field Court Attendance Notice and issued with a driving suspension notice.

The respondent pleaded guilty to the three charges in the Local Court. The respondent sought an adjournment in the District Court on 2 May 2019, (due to negotiations between the parties) on 13 June 2019 (respondent’s surgery) and on 11 December 2019 (the need for expert evidence).

On 27 March 2020, the matter was listed for sentence. The Crown was not ready to proceed due to agreement not having been reached as to the facts. The sentence hearing was adjourned to 31 March 2020 at which time his Honour told the parties that the respondent would serve a term of imprisonment and indicated that due to the pandemic, it would be better not to proceed at that time but rather to wait six months.

The sentence proceedings took place on 7 October 2020. A victim impact statement by the sister of Mr Juerman was tendered (exhibit D). On sentence, the respondent tendered an expert report by a forensic psychologist, Megan Godbee, (exhibit 1), a letter from his treating psychologist, Karen Witzerman, (exhibit 2), medical documents relating to his hospital admission following the collision and subsequent treatment (exhibits 3-5), affidavits by his mother and his previous partner’s younger sister (exhibits 6 and 7), a number of character references (exhibits 8 to 17), a letter from his employer (exhibit 18) and an affidavit from his partner (exhibit 19).

An affidavit by the respondent himself was tendered (exhibit 20). In the affidavit he accepted full responsibility, including acknowledging the impact of his actions on the families of the deceased and the injured victim. The respondent did not give or call oral evidence on sentence. The respondent relied on written submissions (exhibits 21 and 22). The Crown accepted that a 25 per cent discount for the plea of guilty was appropriate.

At the hearing, his Honour told the parties that he had in mind an aggregate sentence of five years with a non-parole period of two and a half years. The Crown submitted that such a sentence ran the risk of falling into appealable error. The Crown relied on R v Shashati (2018) 85 MVR 194; [2018] NSWCCA 167 and R v Smith, Jarad (2016) 75 MVR 367; [2016] NSWCCA 75. The Crown accepted that the “current circumstances … would result in some limited reduction in the term of the respondent to be served, to recognise the slightly more onerous conditions of custody”. The Crown submitted that a head sentence of five years would involve a “significant departure from the sort of sentences that have been imposed in cases with some factual equivalence”. His Honour responded by saying “I was just going to play around with all those figures”. The respondent’s counsel submitted that COVID-19 “does permit a sentence of the kind that your Honour has foreshadowed”.

The respondent was born in December 1986. He was aged 31 at the time of the offences and 33 at the time of sentence. He is currently aged 34.

The respondent had no criminal history or traffic record in NSW. In Queensland he had two “non-convictions” (2010 and 2013) for offences of assault or obstruct a police officer, possessing dangerous drugs and possessing utensils or pipes that had been used with drugs. His Queensland traffic record included a number of speeding matters.

The respondent told Ms Godbee, forensic psychologist, that he grew up in Brisbane as the older of two children. He described having a positive relationship with his parents, who had remained married throughout his life. He denied any experiences of abuse or other trauma during his early life and reported feeling safe and loved in the home environment. He described his childhood as that of a typical suburban family, without anything bad occurring. He described being academically gifted in school but became bored in class. After the Year 12 exams, he completed an apprenticeship and worked as a carpenter.

The respondent reported a pattern of binge drinking a few times per month during his teens and early 20’s. He said that he had engaged in occasional binge drinking at about the time of the offending. He reported first consuming cannabis in his late teens, and that he had gone through periods when he had used cannabis every few weeks and when he had not used it for months at a time. He participated in a two-hour drug diversion counselling session in his teens after being caught with cannabis by police.

Ms Godbee noted that as a result of the collision, the respondent was experiencing significant depressive symptoms. She opined that the respondent was suffering from Post Traumatic Stress Disorder (PTSD). She opined that the respondent did not present as inherently antisocial, noting that he had a history of stable relationships and employment and was supported by his immediate and extended family.

In his reasons for sentence, the sentencing judge referred to the two statutory aggravating circumstances in the case (ss 52A(7)(a) and (b)) and found that there may have been some aspect of “showing off” when he accelerated away from the following vehicle. The two statutory circumstances of aggravation were the presence of the prescribed concentration of alcohol and driving at a speed which exceeded the relevant limit by more than 45km/h.

The sentencing judge found counts 1 and 2 to be mid-range offences in terms of objective seriousness. The sentencing judge noted a need for some accumulation between the two counts, given that the respondent’s driving culminated in the death of two persons. His Honour found that “by driving at this speed while under this level of intoxication” there was “an abandonment of moral responsibility” (Sentence judgment 6).

The sentencing judge referred to the respondent’s lack of relevant criminal history and his traffic record. The sentencing judge regarded the respondent as a person of good character. The sentencing judge took into account the purposes of sentencing expressed in 3A of the Sentencing Act and noted the particular relevance of general deterrence for offences of this type – stating:

The sentencing judge took into account the victim impact statement provided by the sister of Mr Juerman. His Honour found special circumstances on three bases:

The sentencing judge noted that the respondent had repeatedly expressed remorse. His Honour assessed the respondent as having excellent prospects of rehabilitation and that he would be unlikely to re-offend. The sentencing judge noted that this would be the respondent’s first time in custody.

There was considerable unanimity between the parties as to such principles.

The Crown accepted that the primary purpose of a Crown appeal against sentence was to lay down principles of law for the governance and guidance of courts having the duty of sentencing convicted persons.

The Crown submitted that in the exercise of its jurisdiction under s 5D of the Criminal Appeal Act, the Court retained a residual discretion to decline to interfere with a sentence even though the sentence was erroneously lenient (Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 at [1], [26] (Green v The Queen; Quinn v The Queen); Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 at [24] (Bugmy v The Queen). The applicant submitted that the Crown must negate any reason why the residual discretion of this Court not to interfere should be exercised.

The Crown accepted that a Crown sentence appeal based on a claim of manifest inadequacy of sentence required the Crown to establish that the sentence imposed was unreasonable or plainly unjust in a sentencing environment where there is no single “correct” sentence, and judges at first instance are to be allowed as much flexibility in sentencing as is consonant with the application of proper principle and consistency of approach: Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at 325 (Dinsdale v The Queen); Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25] (Markarian v The Queen); Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at 538 [58]. Manifest inadequacy is a conclusion and does not depend on the establishment of specific error: Dinsdale v The Queen at [6].

On that last issue, Gleeson CJ and Hayne J said in Dinsdale v The Queen:

The Crown accepted that uniformity of sentencing was a matter of great importance in maintaining confidence in the administration of justice and that inadequate sentencing gave rise to a sense of injustice, not only in those who are the complainants of the crimes in question, but also in the general public; lack of uniformity in sentence was likely to undermine public confidence in the ability of the courts to play their parts in deterring the commission of crimes.

The Crown agreed that the Court might conclude that the inadequacy of the sentence appealed was so marked that it amounted to “an affront to the administration of justice: Green v The Queen; Quinn v The Queen at [42].

The Crown submitted that the present Crown appeal was brought for the purpose of engaging the discretion of this Court to intervene and set aside the sentence imposed upon the respondent because it was “plainly unjust”. The basis for the appeal was that the sentence was so far below the range of sentences that could justly be imposed and was thereby likely to undermine public confidence in the proper administration of criminal justice.

The Crown submitted that guidance could thereby be provided to sentencing judges concerning the approach to sentencing in cases of aggravated dangerous driving occasioning death. The Crown submitted that such guidance could be provided as to the need, in serious cases such as this present matter, to set an appropriate head sentence and non-parole period which properly reflects the overall criminality involved in the offending.

The respondent submitted that the bringing of a Crown appeal should be a rarity and that this must be reflected in that the exercise of discretion engaged in by sentencing judges should rarely be interfered with in favour of increased penalties unless some matter of principle demands it.

The respondent accepted that prosecution appeals may be brought to establish some matter of principle and to allow appellate courts to lay down principles for the governance and guidance of sentencing courts. The respondent submitted that in Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29 (Lowndes v The Queen) the High Court endorsed the summary of principles by Charles JA where his Honour identified six occasions when the bringing of a prosecution appeal would be appropriate:

The respondent accepted that in Everett v The Queen (1994) 181 CLR 295; [1994] HCA 49 at 306, the High Court clarified that manifest inadequacy or inconsistency in sentencing involve matters of principle that are properly the subject of correction in a Crown appeal.

The respondent submitted that McHugh J linked the correction of manifestly inadequate sentences to the need for uniformity in sentencing. His Honour explained that it was only where the appellate court is convinced that the sentence imposed by the sentencing judge is “definitely outside the appropriate range” that it is ever justified in granting leave to the prosecution to appeal against the inadequacy of sentence. His Honour cautioned that such cases were likely to be rare, noting that “defining the limits of the range of appropriate sentences with respect to a particular offence is a difficult task”.

The respondent submitted that the need for reasonable consistency in sentencing was prominent in Gleeson CJ’s discussion of the principles in Wong v The Queen; Leung v The Queen (2001) 207 CLR 584; [2001] HCA 64 at 591; [6]:

The respondent noted that Gleeson CJ had pointed out that sentencing judges and appellate courts are frequently referred to sentences imposed in what are said to be comparable cases and acknowledged that “there will often be room for argument about comparability and about the conclusions that may be drawn from comparison” but that “inadequacy or excessiveness is often demonstrated by a process of comparison”.

The respondent submitted that past sentencing decisions are sometimes described as evidencing “the range” of sentences for an offence. The respondent submitted that this was a potentially misleading description because the pattern of sentences imposed in past cases does not define the limits of the sentencing discretion. The respondent submitted that to speak of a range of sentences for an offence, is a shorthand way of acknowledging that there is no one correct sentence for an offender. It does not mean that the range of sentences so disclosed is necessarily the correct range or otherwise determinative of the upper and lower limits of sentencing discretion. The respondent submitted that it followed that the correct application of sentencing principle may result in a range of sentences, all of which are correct. The respondent submitted that a sentence that is in line with sentences that have been imposed in relevantly similar cases has the virtue of consistency and is unlikely to impress as a unreasonable or plainly unjust. That will be so unless the past decisions reflect the standard of punishment for a crime that is unreasonable or plainly unjust.

The respondent submitted that in order to succeed on a ground of appeal asserting that an aggregate sentence (or the non-parole period) is manifestly inadequate, the Crown must establish that the judge imposed a sentence “that was below the range of sentences that could be justly imposed for the respondent’s offending consistently with sentencing standards” (R v Hill [2020] NSWCCA 197 at [99]). The respondent submitted that because sentencing is a discretionary judgment, there is no single correct sentence for an offender and an offence. The respondent submitted that appellate intervention is not justified simply because this Court may have exercised its sentencing discretion differently.

The Crown submitted that the present case provided an example of a serious aggravated dangerous driving causing death offence in that two of the four aggravating factors allowed for under the Crimes Act were present. These factors were that the respondent was driving under the influence of intoxicating liquor (high range) and that he was travelling “in excess of 45km/h over the posted speed limited” which in this case was 50 km/h. While the agreed facts did not disclose the exact speed at which the respondent was travelling, nor his precise level of intoxication, it was clear from the agreed facts considered as a whole, that the respondent was travelling at a grossly irresponsible speed, well over the posted speed limit, while significantly affected by the consumption of alcohol. The Crown submitted that his moral culpability was high in that he had three passengers in his vehicle at the time.

The Crown submitted that consistent with the limiting purpose of Crown appeals under s 5D, this appeal was brought to provide guidance when sentencing serious offenders. The Crown submitted that in serious cases of this kind, the sentencing court should set an appropriate head sentence and non-parole which properly reflected the overall criminality involved in the offending.

The Crown submitted that the appeal was also brought for the purpose of engaging the discretion of this Court to intervene and set aside the sentence imposed on the respondent because it was “plainly unjust” and was far below the range of sentences that could properly be imposed for the offence consistent with appropriate sentencing standards. The Crown submitted that the sentence under consideration was so manifestly inadequate as to be likely to undermine public confidence in the proper administration of justice (Dinsdale v The Queen at [61]).

The Crown submitted that under this ground his Honour had erred in finding that the objective seriousness of the respondent’s offending fell within the mid-range. In his reasons on sentence, the sentencing judge relevantly said:

The Crown submitted that the assessment of and attribution of due weight to the objective gravity of an offence is fundamental to the sentencing process (Markarian v The Queen; Khoury v R (2011) 209 A Crim R 509; [2011] NSWCCA 118 at [71]). The Crown submitted that in accordance with the guideline judgment in Regina v Whyte (2002) 55 NSWLR 252; (2002) 37 MVR 1; [2002] NSWCCA 343 (Regina v Whyte) in driving cases the offender’s moral culpability is directly relevant to the determination of the appropriate sentence.

The Crown submitted that as was explained by Spigelman CJ in Regina v Whyte at [205] the degree of moral culpability was a critical component of the objective circumstances of the offence and required “close attention” in the determination of sentence.

The Crown submitted that in Regina v Whyte at [216]-[217] Spigelman CJ had added to the list of relevant considerations in R v Jurisic (1998) 45 NSWLR 209; (1998) 29 MVR 49; (1998) 101 A Crim R 259 and had identified eleven aggravating factors which had been established in the authorities concerning dangerous driving. Those aggravating factors were:

The Crown submitted that at [231] Spigelman CJ noted that paragraphs (i) and (ii) of that list focused on the occurrence of the event whereas paragraphs (iii)-(xi) referred to the conduct of the offender. Spigelman CJ had identified at [228] in Regina v Whyte that:

By way of contrast, Spigelman CJ identified what he assessed constituted low moral culpability by reference to a case of “momentary inattention or misjudgment”: (see Regina v Whyte at [214]).

In Regina v Whyte Spigelman CJ stated at [231] that in an aggravated version of each offence under s 52A:

The Crown submitted that it was not open to the sentencing judge to assess the objective seriousness of the respondent’s offending at mid-range having regard to the following matters.

In terms of the extent and nature of the injuries inflicted (factor (i)), the respondent’s offending had resulted in the death of two passengers and serious injuries to a third.

With respect to factor (ii), on 13 April 2018 the respondent after consuming a significant quantity of alcohol drove a car full of passengers so that his driving put at risk not only those passengers but also potentially members of the public.

With respect to factor (iii), the degree of speed was in excess of 45km over the speed limit.

With respect to factor (iv), the degree of intoxication was high and provided an alcohol reading of at least 0.183 which was high range.

With respect to factor (vi), while his Honour did not find that there were warning signs (despite the flashing light and potential use of a horn by Mr Wiperi as described in the agreed facts), his Honour did find that there may have been some aspect of “showing-off” in terms of accelerating away from the following vehicle. Moreover, the evidence of the respondent’s earlier driving negated any suggestion of momentary inattention or misjudgment on the part of the respondent. (This is directly relevant to assessing the extent of moral culpability of an offender: Regina v Whyte at [78] and [214].)

With respect to factor (vii), the passengers were put at risk as were other road users in the vicinity of the collision (agreed fact 29).

The Crown submitted that his Honour’s finding of “mid-range” objective seriousness was made in circumstances where two of the four aggravating factors under s 52A(2) were present.

The Crown submitted that while the sentencing judge acknowledged that two statutory aggravating factors were present, his Honour appeared to reach his conclusion in relation to objective seriousness by reasoning that “many of the other factors set out within the guideline judgment do not exist” (Sentence judgment 5.6). This was against a background of at least half of the aggravating factors having been made out.

The Crown submitted that after making that statement, the sentencing judge went on to observe:

The Crown submitted that the sentencing judge then made his finding in relation to the offending being in the mid-range in terms of objective seriousness and found “by driving at this speed while under this level of intoxication, there was in my view an abandonment of moral responsibility”.

The Crown submitted that when assessing the objective seriousness of an offence under s 52A(2), the absence of certain aggravating factors under the Regina v Whyte guidelines was not necessarily determinative of the finding of objective seriousness. The Crown submitted that his Honour seemed to have made his assessment on that basis. The Crown submitted that the aggravating factors that were present in this case were of such significance that a finding of a high level of objective seriousness was nevertheless required.

The Crown submitted that the respondent’s moral culpability was high. The Crown further submitted that while accepting the restraint that must be accorded to the review of an assessment of objective seriousness by an appellate court consistent with decisions such as Mulato v Regina [2006] NSWCCA 282 at [37] and [46] (Mulato v R); R v Fahda [2013] NSWCCA 86 at [4], the assessment of “mid-range” was not open to the sentencing judge.

The respondent submitted that Ground of Appeal 1 did not give rise to a House v The King (1936) 55 CLR 499; [1936] HCA 40 error and in any event, no error was demonstrated. The respondent submitted that the Crown had not demonstrated why the residual discretion ought not be exercised in the respondent’s favour.

The respondent submitted that questions of weight were at the heart of the exercise of judicial discretion so that a court reviewing an exercise of discretion would be slow to conclude that the decision maker had failed to give proper weight to a particular matter and a mere preference for a different result will not be sufficient. The respondent submitted that a challenge to the exercise of discretion in sentencing was not an exercise in reviewing the merits of the sentence but was an inquiry into whether there has been error.

The respondent submitted that in order to succeed on a ground of appeal asserting that an aggregate sentence (or the non-parole period) is manifestly inadequate, the Crown must establish that the judge imposed a sentence that was below the range of sentences that could be justly imposed for the respondent’s offending consistent with sentencing standards. The respondent submitted that sentencing involved a discretionary judgment and there was no single correct sentence for an offender and an offence.

The respondent submitted that the factors relevant to any particular sentence will almost certainly conflict with each other in their tendency. He submitted that it was for the sentencing judge to perform the difficult task of synthesis in order to arrive at a coherent penalty that accommodated all such opposing factors.

The respondent submitted that that was why a sentencing judge must have a wide scope within which to assess the weight to be given to factors that drive a decision in opposing directions. The respondent submitted that that is why a sentence that is arithmetically out of line with earlier, somewhat similar cases, may still be the result of a proper exercise of discretion. The respondent submitted that there would be no error if leniency in sentencing was based upon a rational view that in the particular offender’s case, leniency would serve the public interest and that a more severe penalty would not.

In relation to the guideline judgment in Regina v Whyte, Spigelman CJ (with whom the other four judges agreed) set out seven “characteristics” which frequently occur in dangerous driving scenarios and 11 “aggravating factors” which occur in many dangerous driving offences (see [61] hereof).

The seven frequently occurring characteristics were:

The respondent noted that having set out those characteristics and aggravating factors, the guideline put forward by the Chief Justice was:

The respondent noted the following additional comments by the Chief Justice to similar effect:

The respondent’s primary position in relation to Ground of Appeal 1 was that assessments of “objective seriousness” of offending are only required under s 54A(2) of the Sentencing Act when consideration is being given to sentencing for offences which carry a standard non-parole period. Since no standard non-parole period applied here, the respondent submitted that a challenge to an assessment of objective criminality is largely irrelevant.

In the alternative, the respondent submitted that:

The respondent submitted that determining the objective seriousness or gravity of an offence was “classically” within the discretion of the sentencing court. The respondent submitted that the real question is whether or not the particular characterisation was open to the sentencing judge. The respondent submitted that in those circumstances, such a finding is reviewable only where error in the sense identified in House v The King is established.

The respondent submitted that none of the matters identified by the Crown, both below and in this Court, as necessary to have regard to, were overlooked by the sentencing judge. The respondent submitted that his Honour’s unwillingness to embrace the nomenclature which was urged on the court both then and now, i.e. the extent of the objective seriousness of the offending, adds little to the required task of determining whether the aggregate sentence did or did not properly reflect all the factors as noted by the sentencing judge as having been established.

The respondent’s primary position in relation to this ground of appeal, set out at [87] hereof, is not supported by the principles of sentencing applied in this Court. This Court has said on a number of occasions that it is most important that an assessment be made as part of the instinctive synthesis process, of the objective seriousness of the offending under consideration. Such an assessment does not involve any particular precision, nor does it require the gravity of an offence to be assessed by assigning to it a place within a notional scale. What is essential is to identify the “facts, matters and circumstances” bearing upon that assessment so as to make clear that they have been considered (FL v R [2020] NSWCCA 114 per Wilson J (with whom R A Hulme and Hamill JJ agreed) at [59]-[60]).

Any doubt on this issue was resolved by the High Court (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ) in Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [26]-[29] where their Honours said:

In this case, the sentencing judge chose to assess the objective seriousness of the offending by reference to such a notional scale and did not err in doing so. Where his Honour erred was in the assessment which he made, i.e. the assessment of objective seriousness at “mid-range”. I have reached that conclusion despite the fact that an assessment of objective seriousness involves an evaluative exercise by the sentencing judge with which this Court would be slow to intervene (Mulato v Regina at [37] and at [46]).

When regard is had to the reasoning of the sentencing judge (set out at [58] hereof) leading to his conclusion that the objective seriousness of the offending was mid-range, a clear incongruity emerges which was left entirely unexplained by the sentencing judge.

As can be seen from that reasoning, apart from the aggravating factors set out in the Crimes Act, there were two other significant findings made by him to which adequate weight was not given. One important finding was the possibility, that as well as the other deficiencies in his driving, the respondent may have been showing off. The other which was of fundamental importance was the ultimate conclusion set out at the end of his Honour’s analysis of the facts. This was the conclusion, having regard to the moral culpability to which the offending gave rise, that there had been “an abandonment of moral responsibility” by the respondent.

This was a highly significant finding which clearly took into account the objective seriousness of the offending and the personal characteristics of the respondent to reach a conclusion as to the moral culpability of his conduct.

When regard is had to the rationale behind the assessments of moral culpability in the guideline judgments of R v Jurisic and R v Whyte, it is clear that a finding that an offender has abandoned moral responsibility in his or her mode of driving is reserved for only very serious cases and certainly cases which are correctly characterised as above mid-range.

Accordingly, when the totality of his Honour’s reasoning is taken into account a significant incongruity emerges between the finding of mid-range for objective seriousness of the offending and the assessment of moral culpability as involving “an abandonment of moral responsibility”. The incongruity becomes even more striking when regard is had to the percentage which the non-parole period bears to the total sentence.

It follows that his Honour has erred in his assessment of the objective seriousness of the offending and that this ground of appeal has been made out.

The Crown submitted that for offences against s 52A(1) (dangerous driving occasioning death) and s 52A(3) (dangerous driving occasioning grievous bodily harm), the Court’s guideline “for the typical case” was that “[w]here the offender’s moral culpability is high, a full time custodial head sentence of less than three years (in the case of death) and two years (in the case of grievous bodily harm) would not generally be appropriate”: Regina v Whyte at [229]. The Crown noted that Spigelman CJ observed at [231] that in the aggravated version of each offence in s 52A “an appropriate increment to reflect the higher maximum penalty, and what will generally be a higher level of moral culpability, is required”. The Crown noted that it was against that background that the maximum penalty for the aggravated form of the offence causing death at the time of this offending had increased from 10 to 14 years imprisonment.

As the grounds of appeal make clear, the Crown appeal challenged the notional degree of concurrency and accumulation of the individual sentences on the basis that the non-parole period and total effective sentence did not adequately reflect the total criminality revealed by the respondent’s offences. In determining such issues, questions of totality and proportion also arise. The Crown submitted that these issues were not properly assessed.

For the reasons already set out, the Crown submitted that the respondent’s moral culpability was high, having regard to the sentencing judge’s finding that there had been an abandonment of responsibility by him. The Crown submitted that this conclusion was inevitable given the speed at which the respondent was travelling and his intoxication taken with the other aggravating factors, i.e. the extent and nature of the injuries inflicted, the number of people put at risk and the generally erratic driving.

The Crown submitted that while the respondent possessed a number of characteristics of a “typical case” he compared unfavourably with the typical case to which the guideline judgment applies in two respects:

The Crown submitted that his Honour erred in failing to take into account, or to attach appropriate weight to the matters that further aggravated the respondent’s offending:

The Crown noted that annexed to its submissions was a table of cases relevant to offences of aggravated dangerous driving causing death. The Crown referred particularly to R v Shashati (at [38] to [55]) and Conte v R (2018) 86 MVR 239; [2018] NSWCCA 209 (at [12] and [86] to [96]).

The Crown submitted that the importance of these decisions was that they reviewed a number of other relevant cases. The Crown submitted that the general pattern of sentencing in those cases in particular and in relation to this area generally, supported a conclusion that the sentence imposed in the present case was manifestly inadequate. This was particularly so when consideration is given to the aggregate non-parole period. The Crown did accept that there was no fully comparable case and that no two cases and no two offenders were the same.

The Crown submitted that a non-parole period should be fixed by what the sentencing court concludes are all the circumstances of the case, including the need for rehabilitation and what should be the minimum period of actual incarceration: R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534 at [59] (Spigelman CJ; Mason P, Grove J. Sully J and Newman AJ agreeing), citing Power v The Queen (1974) 131 CLR 623; [1974] HCA 26. The Crown submitted that a non-parole period is imposed because justice requires that the offender serve that period in custody: Muldrock v The Queen at [57].

The Crown submitted that the principle was restated in R v Lulham (2016) 263 A Crim R 287; [2016] NSWCCA 287 (R v Lulham), where Bellew J held (with whom Bathurst CJ, Beazley P and Hall and N Adams JJ agreed) at [55]:

The Crown noted that the statement of principle in R v Lulham was cited in Thach v R [2018] NSWCCA 252 at [43] and Goodbun v R [2020] NSWCCA 77 at [124]).

The Crown submitted that when one had regard to those statements of principle, it became apparent that they had not been applied to the facts of this case. The Crown noted that the non-parole period imposed was 2 years and 9 months which represented 46 per cent of the total aggregate sentence. The Crown submitted that even though the extent of an adjustment for special circumstances was discretionary, this Court was entitled to interfere with that discretionary decision if the result produced a sentence which was manifestly inadequate.

The Crown submitted that the non-parole period imposed did not reflect the criminality involved in the offending and has been reduced to a level beyond that which is necessary to punish the offender and provide general deterrence.

The Crown submitted that notwithstanding the strength of the respondent’s subjective case, such a comparatively short non-parole period was not justified. The Crown submitted that the circumstances relied upon by his Honour as establishing special circumstances, namely the respondent’s mental health issues (which his Honour found were not causally connected to the offending), delay and COVID-19 restrictions on persons in custody, even in combination, did not warrant a reduction of the statutory ratio to 46 per cent.

There was no suggestion that the Crown had been responsible for any portion of the delay. The COVID-19 and mental health issues were relevant to the conditions of custody likely to be encountered by the respondent but to nothing else. Most particularly, there was nothing put forward by way of rehabilitation prospects and the extent and likelihood of those being enhanced by such a modest non-parole period.

The Crown submitted that none of the cases which it had included in its table of cases had a non-parole period as low as 46 per cent. The Crown submitted that the ratios in those cases were:

The Crown accepted that in the event that this Court was satisfied that error has been demonstrated in the setting of the non-parole period, it was necessary for the Crown to also satisfy the Court that the residual discretion to decline to intervene and re-sentence the respondent should not be exercised in the present case: CMB v The Attorney General for New South Wales (2015) 256 CLR 346; [2015] HCA 9 at [33], per French CJ and at [54], per Kiefel, Bell and Keane JJ; Green v The Queen; Quinn v The Queen at [1] and Bugmy v The Queen at [24].

The Crown submitted that the following matters were relevant to the Court’s decision whether or not to apply the residual discretion.

The Crown submitted that significant disparity between the sentence imposed and what was necessary to reflect the objective seriousness of the offence was such that the residual discretion should not be exercised in the present case.

Finally, the Crown submitted that the need for denunciation, punishment and general deterrence would be undermined by allowing the manifestly inadequate sentence imposed in this case.

The respondent submitted that insofar as aggregation and totality were concerned, the sentencing judge had made an appropriate allowance. On that issue, the respondent noted that the indicative sentences amounted to 9 years and 1 month and that the aggregate sentence amounted to 6 years.

In relation to “comparable cases”, the respondent noted that in the hearing before the sentencing judge the Crown conceded that there was no strictly comparable case to that under consideration in these proceedings. The respondent submitted that the “comparable cases” relied upon in these proceedings revealed a very wide range of sentences. This was against a factual background which differed substantially from case to case and revealed a wide range of facts giving rise to different levels of moral culpability. The respondent briefly summarised the cases to which the Crown had referred and in doing so emphasised the broad range of factual differences which that analysis revealed. The respondent also noted that in none of the cases considered, either at first instance or in this Court, had the complication created by COVID-19 and the consequential difficulties encountered by inmates who were presently in custody.

The respondent accepted that the aggregate sentence imposed by the sentencing judge was lenient, but submitted that there were “rational” reasons to warrant the approach taken by his Honour. The matters taken into account by the sentencing judge were:

The respondent submitted that for these reasons, Grounds of Appeal 2 and 3 had not been made out by the Crown.

As the submissions make clear, the Crown appeal in relation to Grounds 2 and 3 challenged the degree of concurrency of the individual sentences with the result that the non-parole period and total effective sentence did not adequately reflect the criminality revealed by the respondent’s offences. I agree with that conclusion.

A finding that the respondent’s moral culpability was high was not challenged on appeal and flowed directly from the finding by the sentencing judge that the respondent’s conduct amounted to an abandonment of moral responsibility. Such a conclusion was inevitable given the age of the respondent, the speed at which he was driving and his intoxication. The respondent was well aware of the fact that he was carrying three passengers.

What is also clear is that not only was the respondent’s moral culpability high in respect of all three offences, but the objective seriousness of the offences was greater than that considered in the guideline judgment of Regina v Whyte by virtue of the number of victims and the death of two of them. In that regard, the respondent was being dealt with for the aggravated form of the offence under s 52A of the Crimes Act which carried a maximum penalty of imprisonment for 14 years.

Given the sentencing judge’s finding on moral culpability and the other aggravating factors present, it is clear that the head sentence and indicative sentences were lenient (as was conceded by the respondent). The sentencing judge appears to have approached the guideline judgment in Regina v Whyte as establishing a norm above and below which the sentences should be ordered. This emerges when one has regard to the starting point for the indicative sentences.

I am satisfied that when the leniency shown to the respondent by the sentencing judge in fixing the indicative head sentences, is combined with the inadequacy of the notional accumulation of the indicative sentences, the result is an overall head sentence that was manifestly inadequate.

While I accept that questions of accumulation and concurrency are discretionary, as to which there is no single correct answer, the real issue in this matter was whether the effective total non-parole period and head sentence properly reflected the respondent’s criminality, taking into account all of the circumstances. As already indicated, I would answer that question in the negative.

It is trite to observe that in sentencing for multiple offences of dangerous driving, appropriate regard must be had to the consequences of the respondent’s acts and that in terms of seriousness the greater the number of persons injured or killed, the graver the crime becomes (R v Janceski [2005] NSWCCA 288; (2005) 44 MVR 328 at [23]).

The Crown submitted and I accept that the degree of notional accumulation did not reflect the criminality of the respondent’s conduct and in particular did not sufficiently acknowledge that two deaths had been caused by that conduct. It follows that such a modest increment did not properly reflect the sentencing judge’s findings of a high degree of moral culpability which resulted in injuries which had led to the death of two of the passengers.

When regard is had to the principle of totality, the modest notional accumulation does not comprehend the criminality involved in the offending against each of the victims and in particular, the two who died as a result of the conduct. This can be seen from the fact that the non-parole period fixed will result in the respondent being eligible for release to parole after serving less than 50 per cent of the head sentence.

It follows that, having regard to those circumstances, I am satisfied that Grounds of Appeal 2 and 3 of the Crown appeal have been made out and that the sentence imposed was inadequate, having regard to the seriousness of the driving and its consequences. Error having been demonstrated, the respondent should be re-sentenced.

When considering re-sentencing, the following statements of principle from Johnson J in R v AB (2011) 59 MVR 356; [2011] NSWCCA 229 (with whom Bathurst CJ and Hoeben J agreed) are apposite.

As the Crown has established, the measure of notional accumulation as between the offences was manifestly inadequate with the consequence that the total effective non-parole period and the total effective sentence are manifestly inadequate. Accordingly, it has been demonstrated that the non-parole period and head sentence are unreasonable or plainly unjust: Markarian v The Queen at 370-371 [25].

Given the basis for the Crown’s success in this appeal, and for the reasons set out in [116] hereof, I am not persuaded that the Court should exercise its residual discretion to decline to intervene and re-sentence the respondent. Accordingly, the matter should proceed to re-sentence.

Consistent with the manner in which the appeal was run by the Crown, this Court should not greatly increase the indicative sentences for each of the three counts.

The effective sentence imposed by the sentencing judge comprised a non-parole period of 2 years and 9 months with an effective head sentence of 6 years. This clearly needs to be increased.

In determining questions of accumulation, concurrency and totality the Court must have regard to all factors relevant to sentence including the objective gravity of the offences. Regard should be had to the respondent’s subjective circumstances and the need for retribution and personal and general deterrence to be reflected on sentence while continuing to allow the respondent a 25 per cent discount for his pleas of guilty in the Local Court.

In accordance with that guidance, the orders which I propose are as follows:

BELLEW J: I have read in draft the judgment of Hoeben CJ at CL.

I adopt his Honour’s summaries of the facts of the offending, the subjective case of the respondent, the submissions of the parties in respect of each ground and the principles relating to Crown appeals.

I agree with his Honour’s conclusions that each of the three grounds of appeal have been made out and wish to shortly express my own additional reasons for coming to that view.

Ground 1 asserts error in the conclusion reached by the sentencing judge as to the objective seriousness of the offending.

In Mulato Spigelman CJ observed (at [37]) that the characterisation of the degree of objective seriousness of an offence is classically within the role of a sentencing judge in performing the task of finding the facts. It is for that reason that his Honour went on to observe that this Court will be slow to determine such matters for itself, or set aside a determination made by a sentencing judge in the exercise of a broadly based sentencing discretion. In a case where this Court is asked to set aside the determination of a sentencing judge as to the objective seriousness of particular offending, the question is whether or not such determination was reasonably open.

In the present case, the sentencing judge found that the respondent's offending was at the mid-range of objective seriousness (ROS 5). That finding was made in circumstances where, in terms of the facts of the offending, his Honour found that:

Those findings were largely based upon facts which were agreed between the parties.

In my view, in light of those findings, the determination of the sentencing judge that the respondent's offending fell at the mid-range of objective seriousness was not reasonably open. Put simply, and bearing in mind that the entirety of the respondent's conduct on and from the time that he commenced drinking was relevant in determining objective seriousness (Shashati at [26]), there is a serious displacement between those findings and his Honour’s determination. That is particularly so given his Honour’s conclusions that there may have been an element of “showing off” in the respondent's driving, and that he had abandoned his moral responsibility. The latter finding can only be interpreted as encompassing a finding that the respondent's moral culpability was at a high level.

Further, by reference to judgment of Spigelman CJ in Whyte, his Honour concluded (at ROS 6) that although speed and intoxication were aggravating factors, “many of the other factors set out in the guideline judgment do not exist”. That conclusion overlooked the fact that amongst the factors referred to by Spigelman CJ in Whyte as constituting a “typical case” were that an offender was young, and that the offending caused the death of a single person. In the present case, the offender was 31 years of age, and his offending caused the death of two persons.

Ground 2 asserts that the sentence imposed was manifestly inadequate. My reasons for coming to the view that this ground is also made out can be shortly stated.

In Whyte Spigelman CJ set out the characteristics of a “typical” case of an offence contrary to s 52A and concluded (at [240]) that in such a case, where an offender’s moral culpability was high, a full time custodial sentence of less than three years (in the case of a death) would not generally be appropriate. Importantly, his Honour also concluded that in the case of an aggravated offence contrary to s 52A(2) or 52A(4), an appropriate increment to reflect the higher maximum penalty, and what will generally be a higher level of moral culpability, is required.

As I have already noted, the sentencing judge found that there had been an abandonment of moral responsibility by the respondent. Given that the respondent was charged with two counts of the aggravated offence contrary to s 52A(2) (the circumstance of aggravation being the fact that he was driving with the prescribed concentration of alcohol) any sentence imposed was required to incorporate the appropriate increment to which Spigelman CJ referred.

The characteristics of a “typical” case set out by Spigelman CJ included the fact that the offender was young. At 31 years of age, the respondent did not, from the point of view of being sentenced, fall into the category of a “young offender”. Moreover, as I have pointed out, this was not simply a case where the respondent's moral culpability was high, but was a case in which his Honour found that there had been an abandonment of moral responsibility, to the point where his Honour appears to have been satisfied that there was “some aspect of showing off in terms of accelerating away from the other vehicle”. The fact that the respondent was not, as his Honour found (at ROS 5) “escaping police or ignoring particular warnings” when showing off was of limited significance.

His Honour applied an appropriate discount to reflect the utilitarian value of the respondent's early pleas of guilty and found that he was remorseful and demonstrated excellent prospects of rehabilitation. Those matters were properly taken into account.

His Honour also concluded (at ROS 6) that the respondent was a person of prior good character. Whilst that finding was open, the respondent's good character was deserving of limited weight. In R v McIntyre (1988) 8 MVR 371, a case involving offending contrary to s 52A, Lee CJ at CL (with the concurrence of Hunt J (as his Honour then was) and Campbell J) observed (at 375):

Such observations are particularly apt in the present case.

His Honour also found that the respondent's driving history contained “no major offences …. that is no prior alcohol related offences” (at ROS 6). Whilst that was correct, it tended to overlook the fact that the respondent's driving history also included repeated instances of exceeding the speed limit. In the context of sentencing for an offence in which excessive speed was a factor, that driving history was obviously relevant.

His Honour also found that the delay in the finalisation of proceedings had “caused some issues” for the respondent(at ROS 8). Whilst not expressly stated, it is to be inferred that his Honour found that delay was a mitigating factor. If an offender has been placed in what is sometimes described as a “state of uncertain suspense” as a consequence of delay, that is a factor which is capable of attracting an added element of leniency: see for example R v Blanco (1999) 106 A Crim R 303 at [11]; [16]. However, an offender who wishes to rely upon delay as a factor in mitigation bears the onus of establishing it on the balance of probabilities: Sabra v R [2015] NSWCCA 38 at [47].

The “issues” which were said to have been caused by the delay were not identified in his Honour’s judgment. As far as I am able to ascertain, there does not appear to have been any evidence within the reports of Ms Godbee or Ms Witzerman which supported a conclusion that any delay in the finalisation of proceedings had caused any issues at all for the respondent. Certainly, his Honour’s summary of those reports (at ROS 8 – 9) did not identify any such evidence.

Perhaps even more significantly, the respondent tendered an affidavit in his case on sentence. Leaving aside the fact that this Court has previously been critical of the practice of an offender tendering affidavits and statements without giving sworn evidence (see for example R v Elfar [2003] NSWCCA 358 at [25]) the respondent did not assert in that affidavit that any issue had arisen as a consequence of any delay in the finalisation of the proceedings. One would have thought that if the delay in the finalisation of the proceedings had caused him any issues, he would have referred to them.

It follows that in my view, his Honour’s finding that delay was a mitigating factor was largely, if not totally, unsupported by any evidence.

The absence of evidence to support the finding which was made was, in my view, compounded by what occurred when the matter first came before his Honour for sentence on 31 March 2020 (and thus at an early stage of the current pandemic). On that occasion, his Honour observed (at T 1.33 and following):

The response of counsel for the respondent included the following (at T2.22 – T 2.24):

His Honour then responded (at T2.26 – T2.33):

In my view, the only reasonable conclusion that can be drawn from this exchange is that the respondent saw some advantage in the proceedings being delayed as it would give him additional time to prepare his case on sentence. There is, in my view, a serious incongruity between an offender effectively embracing a delay in proceedings for personal advantage, and then calling in aid the effect of that delay as a mitigating factor on sentence, particularly when no evidence is adduced in support of such effect.

Finally, and acknowledging the limitations placed upon a consideration of the outcomes of other cases, the review undertaken by this Court in Shashati (at [38] – [54] further supports a conclusion that the sentence imposed in the present case was manifestly inadequate.

Ground 3 asserts that the non-parole period of the aggregate sentence was manifestly inadequate. It is apparent the non-parole period which was imposed, which represented only 46% of the aggregate sentence, was consequent upon his Honour’s finding of special circumstances. That finding was not specifically challenged by the Crown before this Court, ground 3 being confined to an assertion that the non-parole period is manifestly inadequate.

In order to explain why I consider that this ground has been made out, it is necessary for me to commence by setting out some of the principles which govern the imposition of a non-parole period generally, and a discretionary finding of special circumstances specifically.

Firstly, the fixing of a non-parole period is not a matter to be determined solely, or even primarily, by reason of considerations of rehabilitation: R v Simpson (2001) 52 NSWLR 704; [2001] NSWCCA 534 per Spigelman CJ at [59].

Secondly, a non-parole period is to be fixed according to what all of the circumstances of the case indicate should be the minimum period of actual incarceration: Simpson at [53] citing Power and ors v The Queen [1974] HCA 26; (1974) 131 CLR 623. The phrase “all of the circumstances of the case” necessarily includes a consideration of any need for rehabilitation. It also encompasses a consideration of the facts and circumstances of the offending, and any criminal history.

Thirdly, and fundamentally, it is necessary for circumstances be sufficiently “special” in order to justify a variation in the statutory ratio between the head sentence and the non-parole period: Simpson at [68]; R v Fidow [2004] NSWCCA 172 at [22];

Fourthly, the fact that an offender is to face imprisonment for the first time is unlikely to justify a finding of special circumstances: Collier v R [2012] NSWCCA 213.

Fifthly, even if special circumstances are made out, a sentencing judge is not permitted to reduce a non-parole period to a level below that which is necessary to punish the offender, and to act as a deterrent, be it to the offender or to others: R v Cramp [2004] NSWCCA 264 at [34].

Finally, in order for special circumstances to be made out there must be some evidence that a longer period on parole would be likely to assist in the offender’s rehabilitation: R v Carter [2003] NSWCCA 243 at [20]; R v Tuuta [2014] NSWCCA 40 at [57].

Bearing all of these principles in mind, the bases on which his Honour made the finding of special circumstances, and which apparently resulted in the imposition of the non-parole period, appear to have been:

I have already canvassed the issue of delay. I have also noted the observations of this Court regarding whether the fact that an offender is in custody for the first time may justify a finding of special circumstances. Those matters aside, and with the exception of the respondent's mental health issues, none of the matters upon which his Honour based his finding of special circumstances, and thus his calculation of the non-parole period, had much, if any, connection to the issue of the respondent's successful rehabilitation. Further, the evidence in support of a finding that a longer period on parole would enhance the respondent's rehabilitation was essentially confined to the observation of Ms Godbee that he would benefit from individual psychological treatment which was “more likely to occur in the community” and that he “[was] “likely to require longer in treatment before he [was] able to make observable changes (at [39]).

Even if it is accepted that those aspects of Ms Godbee’s opinion supported a finding of special circumstances, the calculation of the non-parole period was to be determined according to all of the circumstances of the case, including the facts of the offending. In my view, a non-parole period of 2 years and 9 months completely fails to reflect the circumstances of the respondent's offending which resulted in the deaths of two persons. In particular, it acts as no deterrent whatsoever. The entirety of the circumstances of this case warrant a far longer minimum period of incarceration.

It follows from my agreement that ground 1 is made out that I regard the offending in the present case as falling above the mid-range of objective seriousness.

In determining the appropriate sentence I have had regard to the affidavit of Michael Jones which was read by the Crown, and which sets out the response of Corrective Services NSW to the current pandemic and the effect on persons incarcerated. I have also had regard to the circumstances of the offending, the respondent's subjective circumstances, and the principles to which I have referred in relation to the determination of an appropriate non-parole period. In light of the evidence of Ms Godbee to which I have referred, I am satisfied that special circumstances have been established.

For these reasons I agree with the orders proposed by Hoeben CJ at CL.

HIDDEN AJ: I find it unnecessary to determine ground 1, and I prefer to express no concluded view about the ambit of the conduct encompassed by the notion of abandonment of moral responsibility. However, the offending here was undoubtedly serious and, taking into account all the circumstances of the case, I agree with Hoeben CJ at CL that grounds 2 and 3 are made out.

I am satisfied that this Court should intervene and I agree with the orders his Honour proposes.