Appeal Dismissed for Dangerous Driving Causing Death and Grievous Bodily Harm

The Court of Criminal Appeal dismissed an appeal against a sentence for dangerous driving causing death and grievous bodily harm. The applicant argued the sentence was manifestly excessive, but the court found it reflected the objective seriousness of the offending and the moral culpability of the offender.

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: [NAME_1] v R [2020] NSWCCA 259 Hearing dates: 25 September 2020 Decision date: 07 October 2020 Before: Simpson AJA at [1] Rothman J at [2] Bellew J at [3] Decision: (1) Leave to appeal granted. (2) Appeal dismissed. Catchwords: CRIMINAL LAW – Sentence – Appeal – Offences of dangerous driving occasioning death and dangerous driving occasioning grievous bodily harm – Where applicant was driving a B-double vehicle along a motorway – Applicant took eyes off the road in order to retrieve a drink and removed both hands from the wheel – Vehicle suddenly left the northbound carriageway, crossed a wide median strip and entered the southbound carriageway where it collided with another vehicle killing the passenger and severely injuring the driver – Two drivers behind forced to take evasive action and collided with the trailer of the applicant's truck after it had come to rest – Where sentencing judge found that this was not a case of momentary inattention – Whether this was a "typical" case of the kind identified in R v [NAME_2] – Whether aggregate sentence of 4 years and 6 months' imprisonment with a non-parole period of 3 years' imprisonment was manifestly excessive – Serious offending – Not a typical case attracting the strict application of the guideline – Level of notional accumulation justified having regard to the injuries sustained to the driver – Finding of manifest excess not supported by reference to sentencing outcomes in other cases – Leave to appeal granted – Appeal dismissed Legislation Cited: Crimes Act 1900 (NSW) Cases Cited: Cahyadi v R (2007) 168 A Crim R 41; [2007] NSWCCA 1 Director of Public Prosecutions (DPP) (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 FL v R [2020] NSWCCA 114 [NAME_3] v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 Moodie v R [2020] NSWCCA 160 Preston v R (2011) 57 MVR 346; [2011] NSWCCA 25 R v Clampitt-Wotton (2002) 37 MVR 340; [2002] NSWCCA 383 R v [NAME_2] (2002) 55 NSWLR 252; [2002] NSWCCA 343 Vaiusu v R [2017] NSWCCA 71 Category: Principal judgment Parties: [NAME_4] – Applicant [NAME_5] – Respondent Representation: Counsel: [redacted] [NAME_6] – Respondent

Solicitors: [redacted] [NAME_7] – Solicitor for Public Prosecutions (NSW) – Respondent File Number(s): 2017/311054 Publication restriction: Nil Decision under appeal Court or tribunal: District Court of NSW Jurisdiction: Criminal Date of Decision: 08 November 2019 Before: [NAME_8] Judge Huggett

Judgment 1. SIMPSON AJA: I agree with Bellew J.

2. ROTHMAN J: I agree with Bellew J.

3. BELLEW J: On 23 July 2019 [NAME_9] (the applicant) pleaded guilty before the District Court of New South Wales to an indictment containing the following counts:

1. On 14 October 2017, at Berrima in the [ADDRESS] [POSTCODE], when it was involved in an impact occasioning the death of [NAME_11], and at the time of the impact the said [NAME_4] was driving the vehicle in a manner dangerous to another person (count 1).

2. On 14 October 2017, at Berrima in the [ADDRESS] [POSTCODE], when it was involved in an impact occasioning grievous bodily harm to [NAME_13], and at the time of impact the said [NAME_4] was driving the vehicle in a manner dangerous to another person (count 2).

1. The offending in count 1 was contrary to s 52A(1) of the Crimes Act 1900 (NSW) (the Act) and carried a maximum penalty of 10 years' imprisonment. The offending in count 2 was contrary to s 52A(3)(c) of the Act and carried a maximum penalty of 7 years' imprisonment.

2. On 8 November 2019 the sentencing judge gave the following indicative sentences: 1. count 1 – imprisonment for 3 years and 6 months; 2. count 2 – imprisonment for 2 years and 3 months.

1. The applicant was sentenced to an aggregate sentence of 4 years and 6 months' imprisonment with a non-parole period of 3 years' imprisonment. In addition, he was disqualified from driving a motor vehicle for 5 years.

2. The applicant now seeks leave to appeal against that sentence on the single ground of appeal more fully discussed below.

THE FACTS OF THE OFFENDING 1. The sentencing judge found the facts of the offending to be as follows. [1]

2. At about 3:59am on 14 October 2017 the applicant was driving a Kenworth B-double truck with two attached trailers in a northerly direction along the [NAME_14] at Berrima, a dry, sealed and fully marked stretch of roadway consisting of three northbound lanes and two southbound lanes with a posted speed limit of 110km per hour. The three northbound lanes sat higher than the two southbound lanes, and were separated by a wide nature strip which was the approximate width of four lanes. There was no street lighting on either side.

3. The applicant's truck suddenly left the motorway via the eastern road shoulder and travelled down, and then across, the nature strip and onto the southern bound carriageway. As this was occurring, [NAME_13] was driving his vehicle in a southerly direction along the motorway, with his friend [NAME_11] in the front passenger seat. As the applicant's truck crossed onto the southern carriageway, an impact occurred between the first trailer of his truck and the vehicle being driven by [NAME_12]. The applicant's truck then continued across the motorway, travelling up a steep embankment on the eastern side of the motorway and rolling onto its nearside, before coming to rest on the embankment with the undercarriage facing south and the trailers lying across both southbound lanes.

4. The impact caused the death of [NAME_15], and grievous bodily harm to [NAME_12]. There was no medical evidence before the sentencing judge which set out, in precise terms, the nature and extent of the injuries sustained by [NAME_12]. However, his victim impact statement set out his injuries as: 1. a grade 3 laceration of the spleen; 2. cuts and abrasions to the left and right hands; 3. multiple rib fractures; 4. a major tear of the left pectoral muscle; 5. a pulmonary contusion; 6. a laceration of the scalp; 7. an injury to the finger requiring surgery in the nature of a tendon repair with the use of K-wires; 8. chipped front teeth; and 9. a subluxation the left distal radioulnar joint requiring open reduction and internal fixation. 1. [NAME_17] was driving her vehicle, with a passenger in the front seat, in a southbound direction behind [NAME_12]. As a consequence of the collision, she was required to take evasive action by steering her vehicle towards the nature strip, which resulted in a collision between the front near side of her vehicle and the rear roof portion of the second trailer attached to the applicant's truck. 2. [NAME_20] was driving a semi-trailer with two attached trailers, also in a southerly direction. Upon sighting the stationary vehicles across the southbound lanes, [NAME_21] applied his brakes but was unable to avoid an impact with the roof of the applicant's second trailer.

3. Following the collision, the applicant was observed outside his truck looking through a backpack and walking around with logbooks in his hand. A number of witnesses described him as appearing to be disorientated, "bouncing around" and walking unusually. He told [NAME_21] that he ran off the road because he was "just grabbing [his] drink".

4. The applicant was taken to hospital. The clinical notes taken at the time including the following: "[NAME_22] was leaning over the passenger console to get a drink → caused accident."

1. The applicant was then taken to the police station where he participated in an electronically recorded interview. Whilst that interview was not before the sentencing judge, the agreed facts tendered on sentence included the following: [2] [The applicant] … admitted to not paying attention to the roadway in order to drink from a bottle of Fanta. He described having removed both hands from the steering wheel to replace the lid. While steering the vehicle with only the edge of his right hand, [NAME_23] described seeing the trees passing the windscreen. [NAME_23] stated that he did not apply his brakes or attempt to correct the path of his vehicle after it left the roadway. He said that this was due to the fact he had no time to react as he was not sure what was happening.

1. In the course of the interview the applicant provided police with information regarding his recent driving and sleeping patterns. He denied feeling tired or experiencing any symptoms of fatigue at the time of the collision and there was no evidence to the contrary. He also told police that although he had been prescribed medication for an injury to his hand, he had not taken it for some days because it could not be ingested when operating heavy machinery. Call charge records established that the applicant was not using his mobile telephone to make calls or send messages at the time of the collision, and an analysis of a blood sample taken at the hospital evidenced no impairment of his driving due to drugs or alcohol.

2. The applicant's truck and trailers were seized for mechanical examination. Leaving aside the damage caused by the collision, no mechanical defects were detected. The brake readings on both trailers were within an appropriate range. [NAME_25] were unable to locate any brake marks leading up to the applicant's vehicle. According to the applicant, he had been travelling between 95 and 100km/h at the time his vehicle left the north bound lane. That assertion was not contradicted.

THE OBJECTIVE SERIOUSNESS OF THE OFFENDING 1. The sentencing judge concluded that the objective seriousness of the offending in respect of both counts fell at, or slightly below, the middle of the range for offences of this kind. In reaching that conclusion [NAME_8] said: [3] The agreed facts state [NAME_23]'s manner of dangerous driving was crossing from the northbound lane to the [NAME_14] and across the path of southbound vehicles. An essential part of the sentencing discretion is the consideration of the objective gravity of the offences committed by [NAME_23]. In considering this, guidance is offered by R v [NAME_2] [2002] NSWCCA 343 a guideline judgment in relation to sentencing for offences of the present type which reformulated the Jurisic guideline in light of the decision of the High Court in Wong v The Queen (2001) 207 CLR 584. The guideline judgment is not proscriptive [sic] and there remains a need for the sentencing discretion to be exercised in a manner appropriately befitting the particular circumstances at hand. The guideline is to be taken into account only as a check or sounding board or guide, but not as a rule or presumption. It is submitted on behalf of [NAME_23] that this is a case of momentary inattention and that the Court would find moral culpability falls towards the lower end. The [NAME_26] submits the offending involved more than momentary inattention and [NAME_23]'s moral culpability is high and is approaching but falling short of an abandonment of responsibility. The evidence establishes that [NAME_23] was an experienced driver of heavy vehicles. He was a truck driver by profession and was familiar with the [NAME_14] as it formed part of his regular routes. While driving a B-double truck on a motorway [NAME_23] made a decision to take his eyes off the road and having done that removed his hands from the steering wheel apparently to obtain a bottle of Fanta and have a drink. In doing so he failed to maintain control of the truck and failed to keep it within its lane resulting in the vehicle crossing over the nature strip and travelling in the path of oncoming vehicles.

1. Having made reference to photographs reproduced within the agreed facts which showed the path travelled by the applicant's truck, [NAME_8] continued: [4] As an experienced driver of heavy vehicles, [NAME_23] would have been well aware of the inherent qualities of the vehicle he was driving. He would have known that driving such a vehicle at speed (albeit within the speed limit for the motorway in question) requires a high degree of concentration because of the difficulty in regaining control should control be lost and because of the catastrophic consequences a loss of control could have. Knowing the concentration required to maintain control of his vehicle, the conscious and deliberate decision [NAME_23] made to take his eyes off the road for a time coupled with removing his hands completely from the steering wheel if only for a moment before using the edge of his right hand to steer the truck in order to retrieve a drink was conduct that was objectively very dangerous and carried with it real risks to the safety of others travelling on the motorway. Tragically, some of those risks materialised but would have been avoided entirely had [NAME_23] not acted as he did. While I accept that the dangerous driving did not take place over an extended period of time and accept that [NAME_23] was not affected by fatigue or by any substance that had impaired his ability to drive or his decision-making, nor was there any competitive driving or showing off or conduct related to seeking to escape a police pursuit, this is not a case akin to momentary inattention or misjudgement. [NAME_23] took a calculated risk of a very serious kind in acting as he did and his conduct represents an extremely gross disregard for his obligations as a driver of a heavy vehicle on a motorway. In my view his moral culpability is higher than that attributable to momentary inattention but not at the extreme of being an abandonment of responsibility. I note in relation to Count 2 that the harm occasioned to [NAME_12] involved a number of parts of his body and included harm to his left wrist that required both internal and external fixation to treat in hospital. Bearing all relevant matters in mind, I consider the objective seriousness of both Counts 1 and 2 to fall at or slightly below the middle of the range for offences of their type.

THE APPLICANT'S SUBJECTIVE CASE 1. The applicant was born in the United [NAME_22] and was aged 65 at the date of sentence. He was educated in New Zealand but left before completing high school. He was an average student who experienced no disciplinary issues. Following school he worked as a painter and decorator for a period before entering the trucking industry. During the 1980s he lived between Australia, New Zealand and the United [NAME_22] before returning to settle in Australia permanently in 1988. [5] At the time of the offending he had worked in the trucking industry for more than 45 years. [6] He gave evidence that as a consequence of what had occurred on this occasion he would not drive a truck again, and had made an application to suspend his licence to drive a heavy vehicle. [7]

2. In the course of giving evidence, the applicant was asked about the circumstances in which he entered the pleas of guilty: [8] Q: It's true, isn't it, that you took some time before accepting that you were guilty of these offences, is that right? A: Yes. Q: But once you accepted that you entered your plea of guilty, is that right? A: Yes. Q: It's true to say as well that you felt that, in short, you didn't think what you did was dangerous, is that right? A: Yes, I didn't want to accept it, I didn't want to believe so. Q: But after the accident is it the case you began some psychological treatment? A: Yes after seeing the psychiatrist I just couldn't cope with things and I realised that what I'd done was dangerous. Q: And in realising it was dangerous you sought to enter your plea of guilty? A: Yes, I didn't want to put the family through any more than they'd been through, it has never been my intentions. Q: And you accept as a result of what happened that's brought you before the court you may well go to jail? A: Yes. Q: How do you feel about that prospect? A: For myself I just think about [NAME_10], I think about his family you know, so what happens to me you know I'm sorry, I'm sorry.

1. The sentencing judge found that the applicant's pleas of guilty, having been entered on the day of his trial, warranted a discount "in the order of 10%". [9]

2. When asked whether he wished to say anything in particular about his offending, the applicant said: [10] I want to say sorry it happened. If I could take it back I certainly would. I'm just so sorry. I had no intentions, I'm so sorry.

1. In a letter addressed to the sentencing judge which was tendered in his case, the applicant said: I long for everything to be as it was before this unthinkable accident, but I know it cannot. I now see a psychologist regularly to help me progress [sic] the guilt I feel. I always felt guilty but I admit I did struggle to accept that what I did was dangerous because I had the wrong view of what that meant, thinking that I was negligent more than anything else. When I came to terms with everything I entered my plea of guilty and tried to save the victims, the witnesses, and the Court from the trial. … In my many years of driving heavy vehicles interstate I have always tried my best to uphold and respect my responsibilities to ensure I have done what I can to keep myself and all other road users safe. I'm extremely ashamed that I am the cause of this tragedy. My job was not only my livelihood, but my passion. … To the family and love [sic] ones of [NAME_15] and [NAME_12]. I pray, please the Lord guide, comfort, and help them grieve through this emotional loss. I am so sorry. I wish I could turn the clock back and make everything as it was. I apologise for what I may have said or didn't say, all the things I did or may not have done. 1. [NAME_8] observed that whilst the applicant's pleas of guilty were not entered at an early stage, [11] she was nevertheless satisfied that when they were eventually entered they conveyed some evidence of remorse. [12] [NAME_8] generally accepted that the applicant was genuinely remorseful. [13]

2. The applicant's criminal history included convictions for receiving stolen property, attempted false pretences, assault, destroying property, and possessing a prohibited drug. In respect of that history [NAME_8] said: [14] The relevant guideline recognises that offences of the type before this Court are frequently committed by [NAME_27] persons of good character with no prior criminal convictions. This [NAME_24] however is not a [NAME_28] and comes before the Court with a criminal record both here and in New Zealand. Whilst it is not a particularly lengthy one, it dates from 1969 when he was a child through to 2017 and includes convictions for offences including dishonesty offences and possession of a prohibited drug. While there are no offences of the present kind, in my view his record denies him the leniency otherwise available to a first time [NAME_24].

1. The applicant had a significant traffic record which included entries for: 1. disobeying traffic lights; 2. speeding; 3. fatigue driving; 4. driving whilst licence cancelled; 5. driving whilst disqualified; 6. failing to stop; 7. driving contrary to the direction of a traffic lane arrow; 8. making an unlawful u-turn; 9. negligent driving; and 10. driving a heavy vehicle contrary to [NAME_29] rules.

1. Having noted the applicant's driving history, [NAME_8] continued: [15] I accept that as a professional driver [NAME_23] is frequently on the roads which it might be argued increases the chance of the commission of a driving offence. However his occupation as a driver of heavy vehicles imposes an increased need for care and vigilance because of the consequences such a vehicle can have if driven dangerously. While [NAME_23]'s traffic history does not aggravate the offences he committed on 14 October 2017 and I well appreciate that it is not suggested that excessive speed was a factor in his offending that day, his record suggests that at least prior to that date he had at the very least questionable regard for the rules and regulations put in place to ensure safe driving. In my view his traffic record heightens the need for specific deterrence and has some relevance to a consideration of his risk of reoffending. In that regard, the author of the Sentence Assessment Report has assessed [NAME_23] as being in the low - medium risk of reoffending. While I accept there is a low risk of this [NAME_24] committing a criminal offence in the future, his driving record is such that in my view there does remain a risk of future driving offences being committed whether in a motor vehicle or in a heavy vehicle.

1. The sentencing assessment report to which [NAME_8] referred also recorded that the applicant: [redacted] accepted responsibility for his actions with no justification; reported being momentarily distracted after dropping an open bottle of drink; and stated he never thought that his actions could have caused such an event; acknowledged the hurt he had caused the victims and their families, as well as his own; and said that the incident was something he would never be able to forget.

1. Testimonials from the applicant's daughters [NAME_31] and [NAME_32], along with a further testimonial from [NAME_36], were tendered before the sentencing judge. All spoke of the emotional and financial support the applicant had consistently provided to his family, and the remorse that he had expressed for his offending. [NAME_8] found that the applicant's strong family ties and his employment history were such that, as far as she could predict, he had reasonable to good prospects of rehabilitation. [17] [NAME_8] found special circumstances on the basis that this was the applicant's first sentence of imprisonment, and that he would require assistance upon his release from custody to reintegrate into the community. [18] 2. [NAME_8] concluded that in sentencing for offending of this nature, there was a need for strong denunciation and general deterrence, and that such factors would ordinarily outweigh the subjective considerations of an [NAME_24]. [19] [NAME_8] also observed that any sentence was required to reflect the objective gravity of the offending and the applicant's moral culpability. [20] [NAME_8] concluded: [21] This is not a case of momentary inattention or misjudgement but a grave derogation of one's duties as a driver of a heavy vehicle. I repeat, in so finding I am mindful this is not a case where it can be said that any of the aggravating factors listed in the guideline judgement operate to elevate [NAME_23]'s conduct to that of a high moral culpability and I appreciate that he was not speeding; in other words was travelling under the speed limit. [NAME_23] is to be sentenced for two offences. While I recognise that both offences arose out of the one course of dangerous driving and therefore in the same circumstances, the grievous bodily harm occasioned to [NAME_12] is such that subject to totality and proportionality, I consider it appropriate that there be some degree of accumulation.

THE GROUND OF APPEAL - The sentence imposed was manifestly excessive

SUBMISSIONS OF THE PARTIES

Submissions of the applicant 1. [NAME_6] advanced two specific submissions in support of the ground of appeal, the first of which centred upon the judgment of this Court in R v [NAME_2]. [22] Counsel accepted that whilst it was the aggregate sentence which was to be considered in determining the ground of appeal, it remained relevant to consider the indicative sentences, and pointed out that the indicative sentence for each count exceeded the guideline which was expressed in [NAME_2] as being applicable to what was described as a "typical case". Counsel emphasised that the sentencing judge had specifically found that there were no aggravating factors of the kind referred to in [NAME_2], and had also found that the applicant's moral culpability had not risen to a level which constituted a complete abandonment of responsibility. It was submitted that all of these factors supported the conclusion that the sentence was manifestly excessive.

2. Counsel's second submission related to the level of notional accumulation applied by the sentencing judge. Whilst accepting that some accumulation was warranted in order to acknowledge the harm done to [NAME_12], [NAME_6] submitted that in circumstances where there was no offending conduct in count 2 over and above that in count 1, the notional accumulation of 12 months fortified the conclusion that the aggregate sentence was manifestly excessive.

3. These submissions were supplemented by reference to two particular decisions of this Court, namely R v Clampitt-Wotton [23] and Preston v R. [24] Counsel submitted that the manifest excess of the sentence imposed upon the applicant was further supported by the sentences imposed in each of those cases, bearing in mind the recent observations of [NAME_39] in Moodie v R [25] regarding the use to which such material can be put.

Submissions of the respondent 1. Counsel for the respondent submitted that the circumstances of the applicant's offending were such that this was not a typical case of the kind which attracted the strict application of the guideline referred to in [NAME_2], and that [NAME_8]'s finding in that respect was entirely correct. It was further submitted that there was no error in [NAME_8]'s conclusion that the applicant's offending involved his having taken a "calculated risk". It was submitted, in particular, that there was no error in [NAME_8]'s finding that this was not a case of momentary inattention, and that the evidence supported a conclusion that the applicant's distraction was far more significant.

2. Counsel for the respondent also pointed out that the [NAME_40] had set a maximum penalty of 10 years for the offending in count 1 and a maximum penalty of 7 years' imprisonment for the offending in count 2. It was submitted that taking into account these statutory guideposts, the objective seriousness of the offending, and the applicant's subjective case, the sentence did not fall outside the permissible range of sentencing discretion, and was neither unreasonable nor plainly unjust.

CONSIDERATION 1. In order to establish the complaint of manifest excess, the applicant must demonstrate that the sentence imposed was unreasonable or plainly unjust. In Vaiusu v R [26] R A Hulme J summarised the relevant principles in the following terms: [28] … (a) Appellate intervention is not justified simply because the result arrived at in the court below is markedly different from sentences imposed in other cases. (b) Intervention is only warranted where the difference is such that it may be concluded that there must have been some misapplication of principle, even though where and how is not apparent from the reasons of the sentencing judge, or where the sentence imposed is so far outside the range of sentences available that there must have been error. (c) It is not to the point that this Court might have exercised the sentencing discretion differently. (d) There is no single correct sentence and judges at first instance are allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle. (e) It is for the applicant to establish that the sentence was unreasonable or plainly unjust.

1. As I have noted, the first of the submissions advanced on behalf of the applicant was based upon the decision of this Court in [NAME_2]. In that case, Spigelman CJ observed: [27] [204] A frequently recurring case of an offence under s52A has the following characteristics: (i) [NAME_28]. (ii) Of good character with no or limited prior convictions. (iii) Death or permanent injury to a single person. (iv) The victim is a stranger. (v) No or limited injury to the driver or the driver's intimates. (vi) Genuine remorse. (vii) Plea of guilty of limited utilitarian value.

1. His Honour then made reference to aggravating factors often seen in this type of offending: [28] [216] I had earlier … set out a list of aggravating factors which had been established in the authorities as follows: "(i) Extent and nature of the injuries inflicted. (ii) Number of people put at risk. (iii) Degree of speed. (iv) Degree of intoxication or of substance abuse. (v) Erratic driving. (vi) Competitive driving or showing off. (vii) Length of the journey during which others were exposed to risk. (viii) Ignoring of warnings. (ix) Escaping police pursuit." [217] Further consideration of the authorities would cause me to amend this list by changing (v) to read "erratic or aggressive driving" and adding: (x) Degree of sleep deprivation. (xi) Failing to stop.

1. His Honour concluded: [29] [229] The guideline for offences against s52A(1) and (3) … for the typical case identified above should be: Where [NAME_23]'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. [230] In the case of a low level of moral culpability, a lower sentence will, of course, be appropriate.

1. The "typical case" to which his Honour referred was a case which had the characteristics set out in the passage extracted in [39] above.

2. The sentencing judge specifically referred to the judgment of this Court in [NAME_2] and correctly observed that the judgment was not prescriptive. [NAME_8] found that this was not a case of momentary inattention, and was not a "typical" case of the kind referred to by Spigelman CJ in [NAME_2]. In my view, no error is demonstrated in those findings, for a number of reasons.

3. To begin with, the applicant's offending arose from his having made a conscious decision to take his eyes off the road and, at least for a period of time, to remove his hands completely from the steering wheel before using the edge of his right hand to steer a heavy vehicle. Such conduct, which was directed to retrieving a drink and replacing the cap on the bottle, was obviously extremely dangerous. These actions are not properly described as momentary inattention. Moreover, and leaving aside the death of [NAME_15] and the injuries to [NAME_12], the applicant's actions placed other drivers in immediate peril, as evidenced by the necessity for [NAME_16] and [NAME_21] to take evasive action.

4. The applicant was not, at the age of 65, a [NAME_28]. Even taking into account the testimonials tendered on his behalf, he was not a person of good character with no or limited prior convictions. He had long history of offending which included an unenviable driving history.

5. Further in my view, the accumulation applied by the sentencing judge does not support a conclusion that the aggregate sentence is manifestly excessive. The level of accumulation was a matter for [NAME_8]'s discretionary determination, by reference to the principle of totality. [30] It is apparent that in making that determination [NAME_8] was, quite properly, mindful of the injuries sustained by [NAME_12]. [31]

6. In oral submissions before this Court, [NAME_6] pointed out that before the sentencing judge, the [NAME_26] had categorised the harm suffered by [NAME_12] as falling towards the lower end of the scale. [32] It was submitted, in effect, that even accepting that the injuries sustained by [NAME_12] were relevant to the issue of accumulation, they did not, in view of the [NAME_26]'s categorisation of them, warrant the level of accumulation that the sentencing judge had adopted.

7. Two observations may be made in relation to that submission. Firstly, the injuries sustained by [NAME_12] were such that in my view the [NAME_26]'s categorisation of them was, to say the least, generous to the applicant. Secondly, and in any event, [NAME_8] made express reference to [NAME_12]' injuries in the context of considering accumulation and obviously took those injuries into account in determining the extent of any accumulation that was to be applied. Such an approach does not reflect error. Moreover, and however one might categorise them, the nature and extent of [NAME_12]' injuries were such that I am not satisfied that the level of accumulation adopted by [NAME_8] supports a conclusion that the sentence is manifestly excessive.

8. It remains to consider the two cases to which [NAME_6] referred and which, it was submitted, supported a conclusion that the sentence was manifestly excessive. In doing so, I am mindful of the observations of [NAME_39] (with whom Davies and N Adams JJ agreed) in Moodie [33] about the use to which sentences imposed in cases of like offending can be put, and of his Honour's disagreement with the differing views expressed in respect of that issue in FL v R. [34] However, irrespective of what view might be taken, two propositions relevant to the use of such material are beyond dispute. The first, is that consistency in sentencing requires consistency in the application of relevant legal principles, as opposed to mathematical equivalence. [35] The second, is that whilst sentences imposed in cases of like offending may establish a range of sentences which have been imposed, they do not establish that such range is the correct range, nor do they establish that the upper and lower limits are the correct upper and lower limits of such range. [36] This is particularly relevant in circumstances where the Court was referred to, and [NAME_6] relied upon, sentences imposed in two other cases. Two cases obviously do not establish a range.

9. In any event, for the reasons that follow, an examination of these cases establishes that they can be distinguished from that of the applicant in a number of respects.

10. In Clampitt-Wotton [NAME_23], who was the respondent to a [NAME_26] appeal against inadequacy had been found guilty by a [NAME_41] of two charges of dangerous driving occasioning death and two charges of dangerous driving occasioning grievous bodily harm. [NAME_23] had failed to stop whilst driving a heavy vehicle, and collided with the rear of another vehicle killing two [NAME_27] children, and injuring two others. There was no dispute that [NAME_23] had not applied his brakes before the collision, that he was not driving at excessive speed and that had he been keeping a proper lookout, he should have been able to stop in time. Evidence was given that [NAME_23] had taken his eyes off the road and had looked downwards and to his left just before the impact.

11. The sentencing judge found that [NAME_23] had not been looking ahead but had been "intent upon doing something else, whatever that may have been". [37] The sentencing judge did not view the offending as being one of momentary inattention. He found that [NAME_23] had taken a calculated risk in taking his eyes off the road and that in doing so he had seriously disregarded his obligations as the driver of a heavy vehicle. [38] 12. [NAME_23] was 34 years of age. He had no prior convictions and had what this Court described as a "minor traffic record which [the sentencing judge] treated as of no significance. [39] [ADDRESS] set aside concurrent sentences of imprisonment of 2 years with a non-parole period of 12 months on the most serious charges and imposed, in lieu thereof, a sentence of 4 years' imprisonment with a non-parole period of 2 years in each case. 13. [NAME_23] in that case was substantially younger than the applicant, and his traffic record was minor. In each of those respects, the applicant's case is markedly different. Further, this Court re-sentenced [NAME_23] in circumstances where the principle of double jeopardy remained applicable, a matter in respect of which [NAME_42] said: [40] The principle of double jeopardy in [NAME_26] appeals means that he should not now have to face a sentence of the severity which might then have been passed upon him. The sentence which this Court passes should be the least which could properly have been imposed upon him at first instance.

1. In Preston, [NAME_23] had been found guilty by a [NAME_41] of one count of dangerous driving occasioning death. Whilst driving a 42-tonne semi-trailer, [NAME_23] failed to stop at a [ADDRESS] sign, proceeded directly onto a highway, and failed to observe the presence of the vehicle driven by the deceased, which had been approaching from his right, until about three seconds before colliding with it. [ADDRESS] set aside the sentence of 4 years' imprisonment with a non-parole period of 3 years which had been imposed by the sentencing judge and substituted, in lieu thereof, a non-parole period of 18 months and the balance of term of 18 months.

2. In doing so, this Court observed that [NAME_23]'s driving record over 40 years was "excellent" which was viewed as an important factor given the number of kilometres he had driven. [41] It was also observed that [NAME_23], at the age of 60, had been convicted after leading a "blameless life". [42] Moreover, [NAME_23] faced only one charge. In all of those respects, that case is plainly distinguishable from that of the applicant.

3. In all of these circumstances, and given the numerous distinguishing features in each, I am not satisfied that either of the two cases to which this Court was referred supports a conclusion that the sentence imposed on the applicant was manifestly excessive.

4. For all of the reasons I have expressed I am not satisfied that the ground of appeal has been made out.

CONCLUSION 1. I propose the following orders: 1. Leave to appeal granted. 2. Appeal dismissed.

**********

Endnotes 1. Commencing at ROS 2.

2. At [12]-[13].

3. At ROS 6-7.

4. AT ROS 7-8.

5. ROS 8.

6. ROS 9.

7. T7.25-T7.26.

8. T5.9-T5.35.

9. ROS 2.

10. T7.37-T7.38.

11. ROS 10.

12. ROS 10.

13. ROS 10.

14. ROS 10.

15. ROS 11-12.

16. At p. 2.

17. ROS 12.

18. ROS 15.

19. ROS 13-14.

20. ROS 14.

21. ROS 14. 22. (2002) 55 NSWLR 252; [2002] NSWCCA 343. 23. (2002) 37 MVR 340; [2002] NSWCCA 383. 24. (2011) 57 MVR 346; [2011] NSWCCA 25. 25. [2020] NSWCCA 160 at [83]. 26. [2017] NSWCCA 71 at [28], citations omitted.

27. At [204].

28. At [216]-[217].

29. At [229]-[230].

30. Cahyadi v R (2007) 168 A Crim R 41; [2007] NSWCCA 1 at [27].

31. See [32] above. 32. [NAME_26]'s written submissions on sentence at [23].

33. At [94]-[96]. 34. [2020] NSWCCA 114 at [77]-[79]. 35. [NAME_3] v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [48]-[49].

36. Director of [NAME_43] (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [303]-[305] per Simpson J (as [NAME_8] then was).

37. At [6]

38. At [6].

39. At [8].

40. At [28] citations omitted.

41. At [44] per Beazley P.

42. At [45] per Beazley P.

Amendments 08 October 2020 - Correction to Catchwords DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 08 October 2020