Factual Disputes

When an accused person pleads guilty to any offence – there are generally two considerations. Firstly, the elements of the offences – by pleading guilty, the offender is accepting all elements of the offence. The second issue, is the facts – that is, what are the facts for which the offender is to be sentenced upon. Hence, an offender is able to plead guilty to the elements of the offence but not necessarily accept the facts that are put forward by the prosecution. The risk in challenging the facts is demonstrated in the case of R v AB [2011] NSWCCA 229 below – where the utilitarian value of the plea of guilty was eroded due to the prosecution being put to proof and (more importantly), the witnesses still being required to come to court and be cross examined. 

R v AB [2011] NSWCCA 229 (14 October 2011)

Court of Criminal Appeal
New South Wales

Case Title:
R v AB

Medium Neutral Citation:
[2011] NSWCCA 229

Hearing Date(s):
16 August 2011

Decision Date:
14 October 2011

Jurisdiction:
Before:
Bathurst CJ at 1
Hoeben J at 4
Johnson J at 5

Decision:

Crown appeal allowed.

Sentences imposed in the District Court on 9 March 2011 with respect to the first, second, third and fourth counts are quashed.

In their place, the Respondent is sentenced to an aggregate sentence of imprisonment of six years and seven months commencing on 28 May 2010 and expiring on 27 December 2016.

A single non-parole period of four years and nine months is fixed commencing on 28 May 2010 and expiring on 27 February 2015.

The sentence imposed in the District Court on 9 March 2011 for the offence of driving whilst disqualified, pursuant to a certificate under s.166 Criminal Procedure Act 1986 , is confirmed.

The orders for disqualification made in the District Court on 9 March 2011 are confirmed.

The earliest date upon which the Respondent will be eligible for release on parole is 28 February 2015.

Catchwords:
CRIMINAL LAW – Crown sentence appeal – pleas of guilty – three counts of dangerous driving occasioning grievous bodily harm – one count of take and drive vehicle without consent – three victims were passengers in Respondent’s vehicle – 15-year old victim rendered a C2 tetraplegic – 18-year old son of Respondent loses an arm – 15-year old son of Respondent suffers multiple fractures – Respondent a 44-year old man who had never held a driver’s licence – disqualified driver at time of collision – finding by sentencing Judge of high level of moral culpability – speed and alcohol – challenge by Crown to levels of accumulation and to total effective sentence – error demonstrated – non-parole period and head sentence both manifestly inadequate – Respondent resentenced 

Legislation Cited:

Criminal Appeal Act 1912

Children (Criminal Proceedings) Act 1987

Crimes Act 1900

Criminal Procedure Act 1986

Road Transport (Driver Licensing) Act 1998

Crimes (Sentencing Procedure) Act 1999

Cases Cited:

R v Thomson & Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383

R v JW [2010] NSWCCA 49; 77 NSWLR 7

R v Wilkinson (No. 5) [2009] NSWSC 432

R v Borkowski [2009] NSWCCA 102; 195 A Crim R 1

O’Neil-Shaw v R [2010] NSWCCA 42

Siganto v The Queen [1998] HCA 74; 194 CLR 656

Haoui v R [2008] NSWCCA 209; 188 A Crim R 331

R v Dutton [2005] NSWCCA 248

R v Whyte [2002] NSWCCA 343; 55 NSWLR 252

R v Berg [2004] NSWCCA 300

Hughes v R [2008] NSWCCA 48; 185 A Crim R 155

R v Janceski [2005] NSWCCA 288; 44 MVR 328

Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41

R v MMK [2006] NSWCCA 272; 164 A Crim R 481

Rosenthal v R [2008] NSWCCA 149

R v Koosmen [2004] NSWCCA 359

R v MAK [2006] NSWCCA 381; 167 A Crim R 159

R v Dodd (1991) 57 A Crim R 349

R v Simpson [2001] NSWCCA 534; 53 NSWLR 704

R v MA [2004] NSWCCA 92; 145 A Crim R 434

R v Fidow [2004] NSWCCA 172

R v Scott [1999] NSWCCA 233

Legge v R [2007] NSWCCA 244

Markarian v The Queen [2005] HCA 25; 228 CLR 357

Gillett v R [2006] NSWCCA 370; 166 A Crim R 419

R v Nguyen [2008] NSWCCA 11

Texts Cited:

Category:
Principal judgment

Parties:
Regina (Appellant)
AB (Respondent)

Representation
– Counsel:
Ms S Dowling (Appellant)
Mr G Corr (Respondent)

– Solicitors:
Solicitor for Public Prosecutions (Appellant)
M Doughty (Respondent)

File number(s):
2009/55060

Decision Under Appeal
– Court / Tribunal:

– Before:
Her Honour Judge Murrell SC

– Date of Decision:
09 March 2011

– Citation:
– Court File Number(s)
2009/55060

Publication Restriction: 

JUDGMENT

1. BATHURST CJ : I agree with the orders proposed by Johnson J and with his Honour’s reasons.
2. In par [33] of his judgment, Johnson J emphasises that, as a matter of general principle, the Court should state that the utilitarian value flowing from a plea of guilty is not a fixed element and is capable of erosion as a result of the manner in which the sentencing hearing is conducted. I agree. Whilst, as Spigelman CJ pointed out in R v Thomson & Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383 at [152], the primary consideration for the extent of a utilitarian discount was the timing of the plea this should not obscure the fact that there may be circumstances as Johnson J has pointed out where the utilitarian value may be eroded. Equally, there may be some exceptional circumstances in which it is appropriate to give a full utilitarian discount for a plea, notwithstanding the fact that it has not been entered at the earliest opportunity.
3. That is not to say that sentencing courts should not generally continue to follow the approach in R v Borkowski [2009] NSWCCA 102; (2009) A Crim R 1, but merely that the principles have to be applied by reference to the particular circumstances in any case.
4. HOEBEN J : I agree with Johnson J.
5. JOHNSON J : This is a Crown appeal under s.5D Criminal Appeal Act 1912 with respect to sentences passed upon the Respondent, AB, at the Goulburn District Court on 9 March 2011 arising from a devastating motor vehicle collision.
6. As will be seen, the Respondent’s children, MB (then aged 15 years) and JB (then aged 18 years) were injured in the collision as was DW (then aged 15 years), a friend of MB. As two of the three victims of the offences were under 18 years of age at the time of the offences, each of the victims will be referred to by initials in this judgment to further the purpose of s.15A Children (Criminal Proceedings) Act 1987 . In addition, the Respondent will be referred to by initials as disclosure of his identity would serve to identify MB.

The Sentences

1. Following pleas of guilty entered in the Local Court, the Respondent was sentenced by her Honour Judge Murrell SC on 9 March 2011 as follows:

1. As against a total effective sentence of imprisonment for three years and seven months, the sentencing Judge set a non-parole period of two years and one month commencing on 28 May 2010 and expiring on 27 June 2012.
2. In addition, the sentencing Judge was asked to deal with the Respondent under s.166 Criminal Procedure Act 1986 for a related offence of driving whilst disqualified contrary to s.25A(1)(a) Road Transport (Driver Licensing) Act 1998 for which the maximum penalty was imprisonment for 18 months. For that offence, the Respondent was sentenced to imprisonment for four months from 28 June 2010 to 27 October 2010.
3. With respect to each of Counts 2, 3 and 4, the Respondent was disqualified from driving for a period of four years from 9 March 2011. For the offence of driving whilst disqualified, he was disqualified for a period of two years from 9 March 2011.
4. There are problems with the sentencing orders in this case. It appears that her Honour purported to sentence the Respondent under the aggregate sentence provisions now contained in the Crimes (Sentencing Procedure) Act 1999 , at least in the sense of fixing a single non-parole period. However, the aggregate sentencing provision (s.53A) and the provision to fix a single non-parole period for multiple offences (s.44(2A)) did not commence until 14 March 2011, five days after the Respondent was sentenced. I will return to these issues later in the judgment.

The Grounds of Appeal

1. A Notice of Appeal under s.5D Criminal Appeal Act 1912 was filed by the Crown on 15 April 2011, asserting that the sentences passed were manifestly inadequate. In accordance with the usual practice: R v JW [2010] NSWCCA 49; 77 NSWLR 7 at 15-16 [33]– [38], the Crown filed a document on 25 April 2011, giving notice of grounds of appeal. The Crown relies upon the following grounds of appeal:

(a) Ground 1 – the sentencing Judge erred in failing to properly accumulate the sentences.

(b) Ground 2 – the aggregate head sentence and the non-parole period are manifestly inadequate.

1. In response to questions from the Court at the hearing of the appeal on 16 August 2011 concerning the form and structure of the sentences, the Crown was granted leave to rely upon a further ground of appeal: Ground 1A – The trial Judge erred in failing to provide reasons for declining to set a non-parole period for Counts 2 and 3, contrary to s.45(2) Crimes (Sentencing Procedure) Act 1999 .

History of Proceedings

1. Before turning to the facts of the offences, it is appropriate to place in context the sentencing hearings which took place concerning the Respondent’s offences.
2. The offences occurred on 17 and 18 January 2009. A police investigation ensued thereafter with the Respondent being arrested and charged with the offences on 15 July 2009.
3. The Respondent first appeared before the Moss Vale Local Court on 21 September 2009. Thereafter, the proceedings were adjourned with the Respondent pleading guilty to the charges, and being committed for sentence by the Moss Vale Local Court on 2 March 2010.
4. The proceedings came before the Goulburn District Court on 12 April 2010 and were listed in the May 2010 sittings of that Court.
5. On 28 May 2010, the Respondent appeared before his Honour Judge Toner SC and adhered to his pleas of guilty. The sentencing hearing commenced and documents were tendered for that purpose. The sentencing Judge was informed that there was a factual dispute on sentence which required evidence to be given by DW and the Respondent. The Respondent disputed DW’s account concerning the speed at which the vehicle was travelling shortly before it left the road. He disputed, as well, DW’s account that DW had warned the Respondent to slow down shortly before the vehicle left the road.
6. As will be seen, DW was rendered a C2 tetraplegic as a result of injuries sustained in this collision. It was not possible to accommodate the taking of evidence from DW. It was necessary for the sentencing hearing to be adjourned. His Honour Judge Toner SC was not in a position to be part heard in the matter.
7. Over the opposition of counsel for of the Respondent, his Honour refused bail given the inevitability of a full-time sentence of imprisonment.
8. Thereafter, the Respondent’s matter came before his Honour Judge Bennett SC in the November 2010 sittings of the Goulburn District Court. The matter was before his Honour on 15, 29 and 30 November 2010, but could not proceed because of continuing practical difficulties in arranging for evidence to be given by DW. The matter was adjourned until the next sittings of the Goulburn District Court commencing on 28 February 2011.
9. In due course, the sentencing hearing commenced de novo before her Honour Judge Murrell SC on 8 March 2011. DW gave evidence by audio-visual link and was cross-examined. The Respondent gave evidence and was cross-examined. The Respondent’s sister also gave evidence on general matters relevant to sentence. Submissions on sentence commenced on 8 March 2011 and continued on 9 March 2011. At the conclusion of submissions, her Honour proceeded to sentence the Respondent.
10. Although the Respondent pleaded guilty to the charges in the Local Court and was committed for sentence, the course of the proceedings in the District Court was protracted and involved a significant evidentiary hearing to resolve disputed questions of fact.
11. The Respondent was given a 25% discount on sentence to reflect the utilitarian value of his pleas. At the conclusion of the sentencing hearing in the District Court on 9 March 2011 (T30-31), in response to an enquiry from the sentencing Judge, the Crown maintained the position that there was no issue about the 25% discount in the circumstances of the case. This was a generous concession by the Crown.
12. The Crown accepted in this Court that the present appeal should go forward upon the basis that the Respondent retains the benefit of the Crown concession in the District Court which saw him receive a substantial discount for the suggested utilitarian value of his pleas. However, by that time, the sentencing hearing had proceeded before three different Judges of the District Court over a period exceeding nine months between 28 May 2010 and 9 March 2011. It had been necessary, because of the Respondent’s dispute as to facts, for DW, a young man who had suffered profound injuries as a result of the Respondent’s criminal conduct, to give evidence and be cross-examined by audio-visual link. No doubt this process required DW to recall and relive the horrific events which gave rise to his injuries.
13. The proceedings before the District Court occupied more than 115 transcript pages over six sitting days between May 2010 and March 2011. There was, in reality, a substantial erosion of the utilitarian value flowing from the Respondent’s pleas of guilty.
14. Where a sentencing Court is required to undertake a lengthy hearing in circumstances where there is an unsuccessful application for leave to withdraw the plea of guilty ( R v Wilkinson (No. 5) [2009] NSWSC 432 at [75]), or where, as in this case, there are disputed questions of fact which are resolved adverse to an offender, then a sentencing Court is entitled, if not required, to have regard to these practical events in assessing the utilitarian value flowing from the pleas of guilty.
15. It might be said in the present case that the time ultimately taken to deal with the Respondent’s matters in the District Court, was close to the time which would have been occupied if he had gone to trial.
16. Further, DW was required to give evidence. The utilitarian discount for pleas of guilty does not reflect any other consideration arising from the plea, such as saving witnesses from giving evidence, but this is relevant to remorse: R v Borkowski [2009] NSWCCA 102; 195 A Crim R 1 at 10 [32]. It might be thought that the Respondent’s insistence that DW give evidence at the contested sentencing hearing would operate against the Respondent on the question of remorse.
17. A person who pleads guilty to a criminal offence is, of course, entitled to dispute facts (beyond the elements of the offence) for the purpose of sentence. Where such a dispute occurs, any contested questions of fact adverse to an offender, must be established to the criminal standard of proof: O’Neil-Shaw v R [2010] NSWCCA 42. An offender is not to be penalised because he or she disputes certain facts on sentence and requires the Crown to prove those facts.
18. The position is analogous to that of a person who goes to trial, who may not be penalised for the manner in which the defence at trial was conducted:Siganto v The Queen [1998] HCA 74; 194 CLR 656 at 666-667 [30]– [34]. However, as is made clear in Siganto v The Queen , a person who goes to trial is not entitled to mitigation for a plea of guilty.
19. Likewise, a person who pleads guilty but puts the Crown to proof on certain factual issues and who loses that dispute, is not entitled to the same discount for a plea of guilty, on utilitarian grounds, as a person who does not require such a contested hearing.
20. These observations will have no application to the determination of the present Crown appeal. However, as a matter of general principle, this Court should state that the utilitarian value flowing from a plea of guilty is not a fixed element, and is capable of erosion as a result of the manner in which the sentencing hearing is conducted. This involves no more than an acknowledgment of the fact that what may be gained in utilitarian terms as a result of the avoidance of a trial may be lost, also in utilitarian terms, by way of a protracted sentencing hearing involving the adducing of evidence and the consumption of public resources for a purpose ultimately determined adversely to an offender.

Facts of Offences

1. The sentencing Judge made findings of fact arising from an agreed statement of facts and other documentary materials tendered at the sentencing hearing, together with her Honour’s conclusions having heard oral evidence from DW and the Respondent on aspects in dispute. In this respect, her Honour accepted the evidence of DW where it was in conflict with that of the Respondent and made findings to the criminal standard based upon acceptance of DW’s evidence.
2. The Respondent was born in July 1964 and was 44 years’ old at the time of the offences. The Respondent has never held a licence to drive a motor vehicle. He had held a rider’s licence between 1983 and 1987.
3. In January 2009, the Respondent was working as a tyre fitter at JAXQuickfit Tyres at Campbelltown. He was living at Ingleburn. He had separated from his partner in 2006. There were four children of the relationship, including MB and JB.
4. On 23 January 2008, the Respondent appeared at the Campbelltown Local Court upon a number of charges. For an offence of driving a vehicle in a manner dangerous, he was ordered to perform 200 hours of community service and was disqualified from driving for 18 months, commencing on 22 January 2008 and expiring on 21 July 2009. He was fined for offences of driving a vehicle on a road having never been licensed, and for not stopping a vehicle when directed to do so.
5. Between 1.30 pm on Saturday 17 January 2009 and 12.55 pm on 18 January 2009, the Respondent took possession of a 2001 Ford utility from his place of work at Campbelltown. The vehicle was a company vehicle and could not be used by any employee without the written permission of the employer. The Respondent had no such permission (Count 1).
6. About 12.55 pm on Sunday, 18 January 2009, the Respondent was driving the Ford utility on Argyle Street, Moss Vale. His youngest son, MB (then aged 15 years), saw him and requested a ride home. At that time, MB was in the company of his friend, DW (also 15 years’ old), who also requested a ride home. The Respondent firstly collected his eldest son, JB (then aged 18 years), from another location in Moss Vale before returning to Argyle Street, where MB and DW were waiting.
7. The Ford utility was fitted with two bucket-style seats. The Respondent occupied the driver’s seat and JB sat in the front passenger seat. MB sat in the area behind the front seats. DW sat next to the Respondent in the space in between the two seats. Accordingly, the Respondent set off on the journey towards New Berrima with only himself and JB occupying seats with seat belts. MB and DW were not seated and were unsecured in the cabin of the vehicle.
8. The Respondent told the District Court that, in the period prior to the collision, he had consumed three stubbies of beer. One was consumed at work, the second was consumed en route from Campbelltown to the Southern Highlands and the third was partially consumed after the Respondent had arrived in the vicinity of Moss Vale, shortly before he picked up his sons and DW.
9. The vehicle proceeded along Berrima Road, Moss Vale towards New Berrima in an area where a 70 km per hour speed zone applied.
10. It was the evidence of DW, accepted by her Honour, that as the vehicle proceeded along Berrima Road, it was travelling at what DW described as a“normal speed” . However, the vehicle then overtook three cars “on the straight” and, in the course of overtaking those vehicles, the Respondent’s vehicle reached about 130 kms per hour to 140 kms per hour. As DW was seated in the console area, he had a clear view of the speedometer. He described the speed as being “way over” the speed limit.
11. It was DW’s evidence, again accepted by her Honour, that he asked the Respondent to slow down. He made that request three or four times whilst the vehicle was overtaking the other three vehicles. He first asked the Respondent to “slow down a bit” . When the Respondent did not slow down, he repeated his request and then he said “stop the car so I can get out” . DW was particularly concerned because he knew that the vehicle was approaching a “blind corner” and, according to DW, the Respondent had “left it a bit late on a blind corner” . DW stated that the Respondent’s vehicle“had just returned to the correct side of the road when we got to the blind corner” . DW’s next recollection was waking up in hospital when he regained consciousness from a coma about three weeks later.
12. The Respondent’s vehicle was seen by witnesses to be driving at high speed and, when rounding a slight right-hand bend about 100 metres west of Brookdale Road, near the Moss Vale Sale Yards, the vehicle commenced to rotate clockwise with the passenger side leading, crossing on to the incorrect side of the road, through a fence into a paddock, through another fence, along a dam embankment before colliding with a tree and rolling on to its roof. As a result of the impact, the tree was uprooted.
13. The place where the Respondent lost control of the vehicle, Berrima Road, Moss Vale, comprised one lane in each direction, separated by a double unbroken white line. On either side of the lanes of traffic was a white continuous edge line. The road surface was sealed and in good condition. The weather at the time was fine and sunny.
14. Detective Senior Constable Robert Burlin, of the Southern Region Crash Investigation Unit, expressed the opinion, which was accepted by her Honour, that the Respondent’s vehicle was travelling at a minimum speed of 113.39 kms per hour when it entered the yaw, a term applied to a sideways movement of a vehicle, such as occurs when the rear of the vehicle rounding a corner, side slips and moves out from the curved path in which it has been moving, so that the vehicle revolves around the centre of mass.
15. As a result of the collision, the three passengers were trapped inside the vehicle. They were assisted by other drivers who stopped to help.
16. JB and DW were flown to Royal North Shore Hospital by Air Ambulance. MB was flown by Air Ambulance to Liverpool Hospital.
17. The Respondent had a number of superficial injuries and was taken to Bowral Hospital for treatment and mandatory blood and urine samples were taken.
18. Thereafter, the Respondent returned to the Bowral Police Station and participated in an ERISP. In the interview, he stated to police that he was travelling at 70 kms per hour and, as he entered the corner, the vehicle struck something, such as a rock, or dropped a wheel off the roadway, and then fishtailed and lost control.
19. Dr Judith Perl, pharmacologist with the Clinical Forensic Medicine Unit of the New South Wales Police Force, expressed the opinion that the Respondent’s blood alcohol concentration at the time of the collision would have been not less than 0.092 grams per hundred millilitres of blood. The sentencing Judge accepted that a blood alcohol concentration of 0.092 evidenced impairment of skills in relation to emergency reaction and complex skills and impairment of some general driving skills, so that the Respondent’s driving capacity was significantly impaired.
20. Her Honour inferred that the impairment was likely to manifest itself when he was driving at speed and was called upon to react quickly, as occurred in this case.

Injuries Suffered by the Victims

1. There was a substantial volume of documentary medical evidence tendered at the sentencing hearing concerning the injuries sustained in the collision by MB, JB and DW.
2. Her Honour made the following findings concerning JB’s injuries (ROS, paragraph 24):

“As a result of the collision, [JB] suffered a traumatic amputation of the left arm at the level of his humoral diaphysis, ie above the elbow, and a right elbow fracture. He has undergone multiple surgeries for his injuries. There is no evidence as to [JB’s] current circumstances, but I can only assume that he has been left very significantly disabled as a consequence of the effective loss of his left arm. The offender did volunteer that [JB] was left handed, but will overlook that statement in the absence of confirmation from him or a medical practitioner.”

1. The following findings were made concerning MB’s injuries (ROS, paragraph 25):

“As far as [MB] is concerned he was the least injured. He suffered a damaged ulna nerve in the left arm, a fractured sternum, a fractured scapula and four fractured vertebrae as well as a collapsed lung. Fortunately, the only ongoing disability is some nerve damage to the left arm which results in some sensory interference, sensations of numbness and the like, in more than one finger in the left hand. As at February 2009 he had decreased sensation over the left little and ring fingers and over the ulna aspect of the left hand. He was left with some weakness in the abduction/adduction of the fingers of the left hand. Otherwise, his muscular power and sensation was normal in all limbs. Fortunately for [MB] , in terms of his physical injuries in any event, he escaped relatively unscathed.”

1. Her Honour then turned to the devastating injuries sustained by DW (ROS, paragraph 26):

“Unfortunately for [DW] his life has been completed devastated as a result of the injuries that he sustained. [DW] had serious spinal injuries and he has been classified as a C2 tetraplegic. He was in a coma for a long time. He then underwent rehabilitation. There have been multiple surgical interventions, but he is left with extremely serious disabilities. He is confined to a wheelchair. The report that is in highly technical terms, so it is somewhat difficult to follow. However, I gather that [DW] is permanently confined to a wheelchair and has been deprived of the effective use of all four limbs.

The reports, or perhaps it was the Victim Impact Statement, referred to difficulty in communication, but that difficulty must have been addressed to a large extent because he was able to verbally communicate on the AVL link. I do not know whether that was painful to him but he was able to communicate quite clearly on that link. However, he was a very independent young man at the time of the accident.

He had employment and he was looking forward to a bright future. He is now entirely dependent on others, not only in relation to outdoor activities, but in relation to his personal activities, showering, toileting and matters of that type He has carers in addition to his family. His daily routine is described in the Victim Impact Statement. It is quite unenviable. His house has required renovations.

He will never be able to go upstairs because he is confined to the wheel chair. He is acutely aware of the impact of his disabilities on his family. His parents have become his full time carers and his siblings are also deeply affected. His friends are finding it difficult to cope with the extent of [DW’s] injuries.

For that reason, they have not been providing him with full support. That is all quite understandable. He also sees his friends moving on with their lives and he is aware that that is what he should be doing. He tries to stay positive, but the accident has had a devastating impact on [DW] . The Court acknowledges that and it also acknowledges his courage in facing the future.”

1. In addition to the matters mentioned by the sentencing Judge, the Victim Impact Statement of DW prepared on 12 May 2010 (when DW was 16 years’ old) referred to other consequences of his injuries. DW had been a successful football player and had been ready to join a team in Moss Vale. He had just obtained permanent employment and was thinking about joining the armed forces. These possibilities no longer exist. The demands upon his parents because of his care needs had affected detrimentally the support and assistance which his parents could give to his older brother and sister and his younger sister. The direct and indirect physical, mental and social consequences experienced by DW and his family, as the result of the Respondent’s criminal conduct, are very great.
2. Her Honour summarised the injuries sustained by each of the three victims, and their consequences, in the following way (ROS, paragraph 27):

“The injuries to [DW] are vastly worse than those to [MB]. [JB] also sustained a very serious and permanent disability that will impact upon him, not only in relation to his personal life but, potentially, on his employment prospects.”

1. It was an element of each of the second, third and fourth counts that MB, JB and DW had suffered grievous bodily harm. Section 4(1) Crimes Act 1900defines “grievous bodily harm” to include any permanent or serious disfiguring of the person, the destruction of a foetus and any grievous bodily disease. At common law, the words “grievous bodily harm” are given their ordinary natural meaning. “Bodily harm” needs no explanation and “grievous”simply means “really serious” : Haoui v R [2008] NSWCCA 209; 188 A Crim R 331 at 356 [137], 360 [160]-[162].
2. In R v Dutton [2005] NSWCCA 248, Howie J (Studdert and Kirby JJ agreeing) observed at [30], in the context of a s.52A offence, that the loss of a hand was “grievous bodily harm of a very high order” and that there “can be cases of course where the injury is worse but then the penalty would approach closer to the maximum than a sentence of imprisonment [in that case] for two years”.
3. That each of the three young men had suffered grievous bodily harm was admitted by the Respondent’s pleas of guilty. However, the profound and permanent injury sustained by DW placed that offence close to, if not at, the top of the range of grievous bodily harm encompassed by the section. The substantial maiming of JB, involving loss of an arm, constituted a very serious and permanent disability. The fact that the injuries sustained by MB were not as grave and far reaching as those suffered by DW and JB does not detract from the seriousness of those injuries.
4. These offences involved grave injuries to three individuals who will suffer the consequences, in a multitude of ways, for the rest of their lives.
5. The gravity of the injuries suffered by the victims will be mentioned again in the context of accumulation of sentences and totality.

The Respondent’s Subjective Circumstances

1. As mentioned earlier, the Respondent was 44 years’ old at the time of the offences and 46 years’ old at the time of sentence.
2. The Respondent’s criminal history included entries for break, enter and steal (fined in 1988) and assault (placed on a bond in 1992).
3. The Respondent was convicted, fined and disqualified at the Southport Magistrates Court in 2004 for traffic matters and was placed on a suspended sentence for a domestic violence offence at the same Court in 2006.
4. As mentioned earlier (at [37]), the Respondent was sentenced to undertake community service and was disqualified from driving at the Campbelltown Local Court on 23 January 2008.
5. As mentioned at [35] above, the Respondent has never held a licence to drive a motor vehicle and held a rider’s licence only between 1983 and 1987. His traffic record reveals two infringements for negligent driving (in 1983 and 1985) and nine speeding offences (between 1984 and 1986).
6. In evidence before the sentencing Judge were a presentence report dated 8 April 2010, a report of Dr Michael Giuffrida, forensic psychiatrist, dated 14 May 2010 and references from the Respondent’s employers in the tyre service industry in 2009 and 2010. In addition, as mentioned earlier, the Respondent gave evidence at the sentencing hearing, as did his sister, who was employed as a disability worker. This evidence traversed the Respondent’s personal background and history.
7. The sentencing Judge adverted to this evidence, and the Respondent’s personal history (ROS, paragraphs 30-32):

“30. The offender is a rather a [sic] difficult person to fathom. He gave evidence. His sister gave evidence. Her evidence was extremely helpful. A report was tendered from a psychiatrist, who had not managed to sort things out. He simply described the offender as ‘obviously depressed’ and, generally speaking, described the fact that the offender would not open up to the psychiatrist. That was of minimal use. It appears through the evidence of the offender’s sister that they both came from a very violent household. The offender’s father was a very violent man. There was constant domestic violence in the household, which was primarily directed at the offender’s mother and the offender himself, rather than the sisters.

One incident described by the sister (which was not witnessed by the offender, but is indicative of the level of violence in the household) was that, when the mother was pregnant, the offender’s father threw boiling water over her, resulting in premature labour and the birth of one of the offender’s sisters with a disability, inferentially related to the fact that her mother had gone into premature labour because of the father’s conduct. The offender’s sister said that the offender was always very nervous around his father and that the offender’s father would beat the offender for no apparent reason. He was kicked. He was thrown across rooms. He received bleeding noses and bruises.

This sort of behaviour was perpetrated against the offender from when the offender was seven or eight years of age until he reached his teens and the parents separated. The whole family, in effect, walked on egg shells through the offender’s childhood. The offender performed poorly at school. He engaged in dangerous behaviour such as climbing on roofs. He started drinking in his pre-teen years.

31. According to his sister, the offender has turned to drink and become very withdrawn. He drinks and withdraws into himself rather than discussing his problems. That was demonstrated in the offenders failure to disclose important matters to the author of the pre-sentence report and psychiatrist who was trying to prepare a report to help him. The offender’s sister described her observation that the offender, appeared to be suicidal after the accident. The family insisted that he move to live with them. They did not want him living alone because they feared that he might take his own life.
32. The offender’s evidence accorded with that of his sister, although he did not describe the violence within the household. He informed the Court the psychiatrist, that he does not remember anything about his life before he was ten years of age. The inference is that the offender has suppressed his memory of that part of his life because his primary memory was of being assaulted by his father.”
33. Her Honour turned to the issue of remorse, before returning to other features relevant to the case (ROS, paragraphs 33-34):

“33. As far as the accident is concerned, there is no doubt that the offender is extremely remorseful. Not only in relation to the impact on his own children, but also in relation to the impact on- [DW]. His words were, ‘I wish I had died in the accident’ because of the injuries that he caused to [DW] and to his two sons. That was not just an expression. Based on the evidence of the sister, it seems to be the literal truth. The offender is certainly remorseful within the meaning of s 21 (A)(3).

34. Currently, the offender is not seeing any of his children, except [JB] , whom the sister takes to visit him in gaol. He has a responsible position as a sweeper in gaol. He is quite content to serve a sentence of imprisonment because he believes that he deserves it. When he is released, the offender intends to live with his mother and sister. He has good employment prospects. References have been tendered to the effect that he is a very good worker, very reliable and honest. There is no doubt that he will be able to return to a good situation of employment upon his release. The offender presents as someone with two very serious issues that need to be addressed. The first is his very deep seated psychological problems as a result of childhood abuse, and the second is his related alcoholism.”

Some Further Findings of the Sentencing Judge

1. Her Honour had regard to sentencing factors identified in the decision of this Court in R v Whyte [2002] NSWCCA 343; 55 NSWLR 252. Her Honour accepted the Crown submission and found that a “high level of moral culpability” was involved and that sentences to be imposed should reflect that finding (ROS, paragraph 36).
2. Her Honour made the following findings (ROS, paragraph 43):

“I must consider the sentencing purposes in s 3A. For offences of this type, considerations of general deterrence, accountability, denunciation and recognition of harm to the victims and the community are always very important and that is certainly true in this case. I do not believe that personal deterrence is an important consideration in this case.

I do not think the length of sentence will have any impact on the offender. The fact that the incident occurred is what will weigh with him more than anything else. The consideration of adequate punishment is relevant. I also need to consider the question of rehabilitation of the offender. He is somebody who is in need of rehabilitation in relation to his alcoholism and underlying problems related to childhood abuse.”

1. Her Honour then turned to aggravating and mitigating factors in s.21A Crimes (Sentencing Procedure) Act 1999 (ROS, paragraph 44):

“I need to consider the relevant aggravating and mitigating features in s 21A of the Crime (Sentencing Procedure) Act. Although this is a matter of common sense, I am not taking these matters into account by way of double counting the aggravating features and other features referred to in the guideline judgment. As far as aggravating features are concerned, there is the criminal history, in particular the drive manner dangerous for which he was sentenced in January 2008.

There is the consideration in relation to [DW] , s1A, (2)(g), the injury was substantial. Any grievous bodily harm is a substantial injury, but within grievous bodily harm there are a range of injuries and the injury to [DW] was very much at the upper end of that range, not only because of the nature of the injury but because it happened to a boy who was only about fifteen or sixteen years old at the time and upon whom the accident will impact for many, many decades.

On the other hand, in relation to [MB] , the injury was towards the lower end of the range in terms of grievous bodily harm. I would not describe it as ‘not substantial’ within s 21A(3), but it is a factor to be taken into account in the sentencing of the offence concerning [MB].

Factors under s 21 A(3) are the (h), the prospects of rehabilitation. I do not know that I would describe them as good, but I would describe them as reasonable because the impact of the offence, of incarceration, the realisation of the harm that he has caused, will very likely cause the offender to look closely at his underlying problems and his alcohol problem. I have already noted that I accept that he is remorseful within the meaning of s 21A(3)(i) and I have noted the plea of guilty.”

1. The sentencing Judge adverted to the s.154A(1)(a) Crimes Act 1900 offence (ROS, paragraph 45):

“So far, I have said nothing about the take and drive matter. There was no explanation for why the offender took the vehicle. None was advanced. On the other hand, the offender does not have a record for dishonesty. There is a very minor matter a couple of decades ago, which resulted in a fine. In effect, this is his first matter of dishonesty. The taking was from an employer, someone in relation to whom the offender had a position of trust. That is a consideration in respect of the take and drive matter.”

1. Before passing sentence upon the Respondent, her Honour addressed the issues of “special circumstances” and accumulation of sentences in the following way (ROS, paragraph 46):

“It has been submitted that there are special circumstances that I should take into account in varying the usual relationship between the head sentence and the non parole period. I agree with that submission. The special circumstances that I take into account are partial accumulation of sentences, first time in prison and the need for a lengthy period of support through rehabilitation in relation to alcohol and psychiatric/psychological issues.”

1. Her Honour then imposed the sentences referred to earlier in this judgment, explaining that the “non-parole period of 27 June 2012 applies in relation to the offences involving [JB] and [DW] because they are the sentences which extend beyond that date” (ROS, paragraph 47).

The Crown Appeal

1. As the grounds of appeal makes clear, the Crown appeal challenges 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 total criminality revealed by the Respondent’s offences.
2. Apart from Ground 1A, added by leave at the hearing of the appeal, there was no challenge to the individual sentences for each offence. If the Court determines to intervene and resentence the Respondent upon the primary grounds of appeal, the technical issue raised by Ground 1A will not require further attention.

Submissions of the Crown

1. The Crown pointed to the finding of the sentencing Judge that the Respondent’s moral culpability was high, a finding that was not challenged on appeal. The Crown submitted that this conclusion was inevitable given the mature age of the Respondent, the speed at which the Respondent was driving, both before and at the time that he lost control of the vehicle and his intoxication. Further, the Crown submitted that the fact that the Respondent knew that two of the child passengers were not sitting in seats within the vehicle and were not wearing seatbelts (itself an offence) constituted a further highly aggravating feature that greatly increased his moral culpability: R v Berg [2004] NSWCCA 300 at [26].
2. Further, DW was a stranger to the Respondent and this did not assist the Respondent on sentence: Hughes v R [2008] NSWCCA 48; 185 A Crim R 155at 160 [23].
3. The Crown submitted that not only was the Respondent’s moral culpability high in respect of all three offences, but that the objective seriousness of the offences was greater than that considered in the guideline judgment in R v Whyte , by virtue of the number of victims and the very severe and permanent injuries sustained by two of the victims. In particular, in light of the total and permanent disabilities sustained by DW, the Crown submitted that the offence against him was arguably in the worst-case category of offences of this kind, bearing in mind that this was not the aggravated form of offence under s.52A Crimes Act 1900 .
4. Given the sentencing Judge’s finding on moral culpability, and the other aggravating factors present, the Crown submitted that the head sentences imposed were lenient. It was submitted that her Honour appeared to have approached the guideline judgment in R v Whyte as establishing a norm above and below which the sentences should be ordered.
5. The Crown submitted that the offence involving MB had, as a starting point on sentence, a period of 24 months, the sentence identified by Spigelman CJ in R v Whyte as being appropriate in a case where there were no such aggravating features.
6. The Crown submitted that the starting point for the offence involving JB was a period of 32 months, despite the very serious and permanent injury suffered by JB and the presence of other aggravating factors.
7. With respect to the offence involving DW, the Crown submitted that the starting point was a period of 48 months, only twice that identified in R v Whyteand only minimally over 50% of the maximum penalty, despite it being arguably an example of the worst case of an offence of its kind.
8. The Crown submitted that the sentencing Judge also adopted an unjustifiably lenient approach to considerations of personal deterrence. It was observed that her Honour was clearly impressed by the Respondent’s deep remorse, as a result of which she concluded that personal deterrence was not an important consideration in the case (ROS, paragraph 43). However, the Crown submitted that such a conclusion failed to take proper account of the Respondent’s history of driving offences. For many years, the Respondent had repeatedly driven without a licence and he had been convicted on three prior occasions of driving negligently or driving in a manner dangerous. In 2008, the Respondent had been sentenced to 200 hours community service for such an offence. He has been charged nine times with speeding offences.
9. On this occasion, the Crown submitted that he stole a vehicle, overloaded it with children and drove it, intoxicated, in a manner dangerous. The Respondent’s driving history demonstrated a continuing attitude of disobedience for the law and a complete disregard for other users of the road. Notwithstanding the Respondent’s feeling of guilt and contrition, the Crown submitted that considerations of personal deterrence remained relevant in the sentencing process.
10. Whilst the Crown did not submit that the individual head sentences themselves were manifestly inadequate in the sense that they are plainly unjust or unreasonable, it was submitted that the leniency shown to the Respondent in the fixing of the head sentences, when combined with the inadequacy of the accumulation, resulted in an overall head sentence that was manifestly inadequate.
11. Whilst acknowledging that questions of accumulation and concurrency are discretionary, as to which there is no single correct answer, the Crown submitted that the real issue is whether the effective total non-parole period and head sentence properly reflected the Respondent’s criminality, taking into account all the circumstances.
12. It was submitted that, in sentencing for multiple offences of dangerous driving, appropriate regard must be paid to the consequences of the Respondent’s acts and that, in terms of seriousness, the greater the number of persons injured, the graver the crime becomes: R v Janceski [2005] NSWCCA 288; 44 MVR 328 at [23].
13. The Crown submitted that the degree of accumulation imposed here, being three-month increments for each of the offences relating to JB and DW, did not reflect the criminality of the Respondent’s conduct and, in particular, did not sufficiently acknowledge the devastating injuries suffered by DW.
14. Further, the Crown submitted that such minimal increments did not properly reflect the sentencing Judge’s findings that each of the offences involved a high degree of moral culpability and had resulted in injuries that were at “the upper end of the range” of seriousness.
15. Even when regard is had to the principle of totality, the Crown submitted that increments of three months did not comprehend the criminality involved in the offending against each of these three young men. It was submitted that this is illustrated by the fact that the non-parole period fixed will result in the Respondent being eligible for release to parole after only serving 50% of the sentence imposed with respect to the offence against DW.
16. The Crown submitted that, in the circumstances, the sentences were inadequate having regard to the seriousness of the driving, its consequences and in light of the Respondent’s record, so that error had been demonstrated and the Respondent should be resentenced.

The Respondent’s Submissions

1. Mr Corr, counsel for the Respondent, submitted that her Honour had imposed a measure of accumulation for each offence and that error had not been demonstrated in this discretionary sentencing process.
2. Mr Corr submitted that the findings of the sentencing Judge concerning the Respondent’s remorse and contrition operated, as her Honour held, to reduce the significance of personal deterrence on sentence. He submitted that this approach was open to the sentencing Judge.
3. Mr Corr submitted that there ought be no effective increase in the non-parole period and full-term component of the sentences.

Resolution of Competing Submissions

1. At the forefront of this appeal is the need to keep in mind the fact that the Respondent’s grossly irresponsible driving involved three separate crimes, committed against three separate victims with grave consequences to each of them and, in particular, to DW.
2. In R v Scott [1999] NSWCCA 233, Levine J (Carruthers AJ agreeing) said at [17]:

“Offences under s52A are public offences. Everyone has some idea of what they are about. Everyone is involved as a driver, passenger or pedestrian with what goes on on the highways and streets of this State. It is a very public crime. The public are entitled to have sentences imposed that make it perfectly clear that conduct of this kind in an environment in which so many of the public are involved in their daily affairs, will be appropriately punished.”

1. It is the unfortunate fact that offences under s.52A Crimes Act 1900 can cause death or serious injury to persons in the driver’s vehicle, in other vehicles which happen to be in or near the street at the time, or to pedestrians unlucky enough to be in the area when the offence is committed. The lethal or potentially lethal consequences of s.52A offences mean that relatives or friends of an offender, or complete strangers, may be killed or injured through the course of driving which constitutes the offence.
2. It is important that the guideline judgment in R v Whyte does not become the undue focus of attention on the part of a sentencing Judge, with less attention being paid to the maximum penalty for each offence (in this case imprisonment for seven years). The guideline is a “guide” or “check” with the sentence to be imposed to be determined by the exercise of a broad discretion taking into account all relevant factors, including the maximum penalty: R v Whyte at 288 [232]. As Spigelman CJ said in Legge v R [2007] NSWCCA 244 at [59], “a guideline is not a tramline” .
3. The Crown submission that the offence involving DW is close to a worst-category offence of this kind is correct. The driving of the Respondent, as the sentencing Judge found, involved a high level of moral culpability. Added to this were the devastating consequences for DW, a teenager whose life has been altered profoundly. It is difficult to envisage a more serious example of “grievous bodily harm” than that relating to DW. It was and remains important that the grave seriousness of the Respondent’s crime against DW be marked by a significant period of imprisonment referrable to that offence alone.
4. The offence against the Respondent’s son, JB, also caused serious and permanent injury and disability. It was necessary that there be a significant and identifiable period of imprisonment referrable to the offence against JB.
5. On the scale of injuries in this case, the offence against MB involved the least serious injuries. It was important, however, that the sentencing process did not dilute the objective seriousness of the offence against MB, who sustained significant and serious injuries. Once again, a separate and identifiable period of imprisonment was necessary with respect to this offence.
6. Relevant to sentence for the offence against DW is the fact that the Respondent had responsibility for a teenage friend of his own son, whom he carried as a passenger in the vehicle. Further, the fact that the Respondent drove the vehicle in this manner with four persons in the cabin, which contained only two seats, was a serious aggravating factor on sentence. Two of the young persons were not only unseated, but without seatbelts at a time when the Respondent drove in this dangerous fashion. The number of persons put at risk is a relevant aggravating factor, and the Respondent knew that two of the passengers were neither seated nor secured by seat belts: R v Berg at [26]. A driver is responsible for the safety of his passengers, including the need to ensure they are seated and secured by seat belts: R v Dutton at [36].
7. The s.52A offences tend to overwhelm the offence concerning the vehicle under s.154A Crimes Act 1900 . It is important, however, that that offence not be effectively sidelined in the sentencing process.
8. The Respondent was not a young person who took a vehicle on a joy ride with friends, leading to an accident with tragic consequences. The Respondent was a mature man, aged 44 years, who (for reasons that remain unexplained) took a work vehicle without permission and then, whilst driving two of his sons and a teenage friend, drove the vehicle in an extraordinary fashion whilst they were vulnerable and exposed to great risk of harm. All of this occurred, of course, after the Respondent had been consuming alcohol which affected him to some extent.
9. In reality, the Respondent had few factors operating in his favour on sentence. Reference has already been made to the 25% discount for the utilitarian value of his pleas of guilty, a generous discount in the circumstances of this case, with which this Court cannot interfere.
10. The Respondent’s history of persistent driving, and driving offences whilst unlicensed, was a significant factor which ought to have operated against him on sentence. The sentencing Judge observed (ROS, paragraph 29) that the fact that the Respondent was disqualified from driving at the time of the offences could not bear upon the objective gravity of the offences, although being relevant to issues of personal and general deterrence: Rosenthal v R[2008] NSWCCA 149 at [16]– [17].
11. In the context of sentencing for this class of offence, this Court has said that a licence to drive a motor vehicle is a privilege which carries with it significant obligations to drive safely and not to endanger the lives of others: Gillett v R [2006] NSWCCA 370; 166 A Crim R 419 at 437-438 [47]. The Respondent had never been licensed to drive a motor vehicle and was a disqualified driver at the time of these offences. Far from being privileged to drive as a licensed driver, he was prohibited by law from driving. His driving history, and status as a disqualified driver, indicated an attitude of disobedience to the law and required that increased weight be given on sentence to issues of retribution and personal deterrence: R v Nguyen [2008] NSWCCA 113 at [51].
12. However, as set out at [74] above, her Honour appears to have placed personal deterrence to one side because of the Respondent’s feelings of remorse for what he had done. In my view, this approach was unduly favourable to the Respondent and was erroneous.
13. It might be expected that a person who commits this class of offence, where family members and acquaintances are seriously injured, will feel great sorrow for their actions. Indeed, if those feelings were absent, there would be significant psychological and behavioural issues arising for consideration.
14. The fact that the Respondent had responded to the offences in the way he did could not, in my view, operate so as to reduce significantly the role of personal deterrence in this case. In R v Koosmen [2004] NSWCCA 359, Smart AJA (Wood CJ at CL and Hislop J agreeing), in the context of a sentence appeal with respect to an offence of driving under the influence of intoxicating liquor occasioning death, observed at [32]:

” Dhanhoa [[2000] NSWCCA 257] is authority for the proposition that the effect of the death in the accident on the offender and self punishment (the self inflicted sense of shame and guilt) were often highly relevant factors, that the weight to be given to these depended on the circumstances and that different judges may give different weight to those factors. Where the facts reveal gross moral culpability judges should be wary of attaching too much weight to considerations of self punishment. Genuine remorse and self punishment do not compensate for or balance out gross moral culpability.”

1. The principles expressed in R v Koosmen have particular application in a case such as this, where personal deterrence is a critical consideration on sentence, given the Respondent’s long-term (if not lifetime) disregard for driver licensing laws. The Respondent has committed offences repeatedly when unlicensed, culminating in a serious offence in 2008 for which a community service order was imposed, together with a period of disqualification. Yet the Respondent drove again on this occasion, in the criminal manner which gave rise to these offences. The Respondent’s feelings of shame, guilt and self punishment, could not remove the need for a significant element on sentence for personal deterrence and retribution. In addition, general deterrence remained as an important consideration on sentence.
2. Hunt AJA (Spigelman CJ and Howie J agreeing), in R v Janceski at 333 [23], referred to principles concerning concurrency and accumulation in the context of offences where a number of people are injured in a motor vehicle collision, and where separate charges are laid in relation to each victim:

“In a case falling within the second sub-category, separate sentences should usually be fixed which are made partly concurrent and partly cumulative, each such sentence being appropriate to the existence of only one victim and the aggregate of the sentences reflecting the fact that there are multiple victims resulting from the same action by the offender. The extent to which there should be an overlap in the partial accumulation will depend on what is required to represent the totality of the criminality involved in the one act of the offender.”

1. General sentencing principles with respect to accumulation, concurrency and totality were expressed by Howie J (Price J agreeing) in Cahyadi v R[2007] NSWCCA 1; 168 A Crim R 41 at 47 [27]:

“In any event there is no general rule that determines whether sentences ought to be imposed concurrently or consecutively. The issue is determined by the application of the principle of totality of criminality: can the sentence for one offence comprehend and reflect the criminality for the other offence? If it can, the sentences ought to be concurrent otherwise there is a risk that the combined sentences will exceed that which is warranted to reflect the total criminality of the two offences. If not, the sentences should be at least partly cumulative otherwise there is a risk that the total sentence will fail to reflect the total criminality of the two offences. This is so regardless of whether the two offences represent two discrete acts of criminality or can be regarded as part of a single episode of criminality. Of course it is more likely that, where the offences are discrete and independent criminal acts, the sentence for one offence cannot comprehend the criminality of the other. Similarly, where they are part of a single episode of criminality with common factors, it is more likely that the sentence for one of the offences will reflect the criminality of both.”

1. In Cahyadi v R , Howie J referred at 47 [28] to the decision in R v MMK [2006] NSWCCA 272; 164 A Crim R 481 where the Court (Spigelman CJ, Whealy and Howie JJ) said at 486 [13]:

“In some cases the fact that a sentence for a particular offence is to be served completely concurrently with another sentence for a different offence will result in a sentence that is erroneously inadequate because it does not reflect the totality of the criminality for which the offender was to be punished for the two acts of offending: see for example R v Brown [1999] NSWCCA 323. This may be so even if the two offences arise from the same precise criminal act, such as the dangerous driving of a motor vehicle on the one occasion: R v Janceski (No 2) [2005] NSWCCA 288. The same principle has been applied to sexual assault offences arising from a single incident of sexual assault: R v Gorman [2002] NSWCCA 516; (2002) 137 A Crim R 326. Although, it has been held that a determination of the extent, if any, that a sentence is to be served cumulatively with another sentence is an exercise of discretion on which minds might differ, R v Hammoud [2000] NSWCCA 540; (2000) 118 A Crim R 66, that discretion is generally circumscribed by a proper application of the principle of totality.”

1. The principle of totality is not unrelated to the principle of proportionality: R v MMK at 486 [11]. A sentencing Court must take care when applying the totality principle, with public confidence in the administration of justice requiring the Court to avoid any suggestion that what is in effect being offered is some kind of a discount for multiple offending: R v MAK [2006] NSWCCA 381; 167 A Crim R 159 at 164-165 [18].
2. It has been demonstrated that the sentencing Judge in this case, in determining issues of accumulation and totality, did not apply relevant principles so as to ensure that the objective gravity of the Respondent’s offences were reflected appropriately in the non-parole period and the effective head sentence to be served for the offences. Significantly inadequate accumulation was ordered so that the sentences imposed for discrete offences were accompanied by minimal increments. In reality, the sentences imposed for the offences were close to being concurrent, with only minimal overlap by way of accumulation.
3. The explanation for this conclusion appears to flow from inadequate attention being paid to the maximum penalties for the offences, together with certain subjective features of the Respondent’s case (his troubled upbringing in a destructive household) being taken into account in a manner which diverted the sentencing Court from imposing sentences which adequately reflected his objectively serious crimes: R v Dodd (1991) 57 A Crim R 349 at 354. The Respondent’s troubled family history could have only a limited role to play on sentence for crimes committed when he was 44 years’ old, with a lengthy history of disobedience to the traffic laws, and with his offences involving high moral culpability and grave injury to the three young victims.
4. In my view, error has been established in the sentencing process with respect to accumulation, concurrency and totality.
5. The Crown has established that the measure of accumulation as between the offences in this case was manifestly inadequate, with the consequence that the total effective non-parole period and the total effective sentence are manifestly inadequate. It has been demonstrated that the non-parole period and head sentence are unreasonable or plainly unjust: Markarian v The Queen [2005] HCA 25; 228 CLR 357 at 370-371 [25].
6. This Court retains a discretion whether to resentence a respondent on a Crown appeal: R v JW at 33 [150]. However, no discretionary basis has been demonstrated for the Court to decline to resentence in this case.

Resentencing the Respondent

1. If the point was reached where the Court determined to resentence the Respondent, the Court was asked to take into account an affidavit of the Respondent sworn 11 August 2011 which outlined his current custodial status and his plans upon release. I have had regard to that affidavit for the purpose of resentencing the Respondent.
2. As this Court is to resentence the Respondent at this time, the aggregate sentencing provisions in the Crimes (Sentencing Procedure) Act 1999 are available for use by this Court on appeal.
3. Consistent with the manner in which the appeal was argued by the Crown, this Court should not increase the individual sentences to be served on each of the four counts. The appropriate sentencing outcome should be reached by varying the orders for accumulation and by increasing the non-parole period to be served by the Respondent.
4. The effective sentence imposed by the sentencing Judge comprised a non-parole period of two years and one month with an effective head sentence of three years and seven months. For reasons disclosed in this judgment, that outcome is manifestly inadequate.
5. In determining questions of accumulation, concurrency and totality, the Court has regard to all factors relevant to sentence, including the objective gravity of the offences, the Respondent’s subjective circumstances, and the need for retribution, and personal and general deterrence to be reflected on sentence, whilst continuing to allow the Respondent the 25% discount for his pleas of guilty in the District Court.
6. The non-parole period to be set ought reflect the minimum period of actual incarceration that the Respondent must spend in full-time custody, having regard to all the elements of punishment including the objective gravity of the offences, the Respondent’s subjective circumstances, rehabilitation, and personal and general deterrence: R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 at 716-717 [55]– [58]. The non-parole period must reflect adequately the objective seriousness of the offences and the necessary punitive considerations: R v MA [2004] NSWCCA 92; 145 A Crim R 434 at 440[34].
7. With respect to the first count, a fixed term of imprisonment for three months was imposed. I note that her Honour was misinformed by the Crown that the maximum penalty for that offence was imprisonment for two years (AB32), when the maximum penalty was in fact imprisonment for five years: ss.117, 154A Crimes Act 1900 . On appeal, the Crown acknowledged that this error had been made, and accepted that the Court should not take it into account given that the District Court had been led into error in this respect by the Crown: R v JW at 33 [149].
8. The real issues ventilated on appeal concerned the approach to sentencing for the s.52A offences.
9. The sentencing Judge’s measure of accumulation of one month, as between the first and second counts, should remain.
10. The sentence for the second count (the offence involving MB) was one of imprisonment for a fixed term of 18 months. The sentence on the third count (the offence involving JB) involved a fixed term of imprisonment for two years. Having regard to the conclusions reached on appeal, accumulation for a period of one year and three months is appropriate as between these offences.
11. The sentence on the fourth count (the offence involving DW) was one of imprisonment for three years. Accumulation for a period of two years and three months is appropriate as between the third and fourth count.
12. Aggregation of these sentences in this way under s.53A Crimes (Sentencing Procedure) Act 1999 will see a total head sentence of six years and seven months commencing on 28 May 2010 and expiring on 27 December 2016.
13. Where a single non-parole period is fixed for an aggregate sentence of imprisonment, the usual statutory formula applies as well, with the Court required to give reasons for varying the ratio after a finding of special circumstances: s.44(2B) Crimes (Sentencing Procedure) Act 1999 .
14. If the statutory formula in s.44(2B) Crimes (Sentencing Procedure) Act 1999 was applied to this head sentence, a non-parole period of four years, 11 months and one week would result. The sentencing Judge identified the special circumstances in this case as being the partial accumulation of sentences, the fact that it was the Respondent’s first time in prison and the need for a lengthy period of support through rehabilitation in relation to alcohol and psychiatric/psychological issues (ROS, paragraph 46), set out at [77] above.
15. It is important that the sentencing process does not see double counting of subjective factors, so as to reduce the overall sentence, and then to operate again to reduce the term of the non-parole period: R v Fidow [2004] NSWCCA 172 at [18].
16. The non-parole period should not fall below that which is appropriate, having regard to the objective gravity of the Respondent’s crimes. In my view, a non-parole period of four years and nine months is the minimum period which the Respondent should be required to serve in the circumstances of the case. This reflects a modest variation for special circumstances, being the Respondent’s need for extended support upon release. If the Respondent is released to parole at the expiration of the non-parole period, these orders will allow for a substantial period of conditional liberty to aid his rehabilitation.
17. For the purposes of s.53A(2)(a) Crimes (Sentencing Procedure) Act 1999 , I record the fact that an aggregate sentence should be imposed in this case. For the purposes of s.53A(2)(b) of that Act, I record that the fixed-term sentences referred to at [132], [135]-[136] above constitute the sentences that would have been imposed for each offence, had separate sentences been imposed instead of an aggregate sentence.
18. I propose that an aggregate sentence of imprisonment of six years and seven months be imposed for the offences comprised in the first, second, third and fourth counts. A single non-parole period of four years and nine months is appropriate in the circumstances of the case.

Orders

1. I propose the following orders:

(a) Crown appeal allowed;

(b) sentences imposed in the District Court on 9 March 2011 with respect to the first, second, third and fourth counts are quashed;

(c) in their place, the Respondent is sentenced to an aggregate sentence of imprisonment of six years and seven months commencing on 28 May 2010 and expiring on 27 December 2016;

(d) a single non-parole period of four years and nine months is fixed commencing on 28 May 2010 and expiring on 27 February 2015;

(e) the sentence imposed in the District Court on 9 March 2011 for the offence of driving whilst disqualified, pursuant to a certificate under s.166 Criminal Procedure Act 1986 , is confirmed;

(f) the orders for disqualification made in the District Court on 9 March 2011 are confirmed;

(e) the earliest date upon which the Respondent will be eligible for release on parole is 28 February 2015.