SUPREME COURT OF QUEENSLAND

[1]  MARGARET McMURDO P:  The applicant, Robert Alan Derks, pleaded guilty in the Supreme Court at Cairns on 27 April 2011 to stealing (count 1); three counts of unlawfully using a motor vehicle (counts 2, 5 and 6); dangerous operation of a motor vehicle (count 3); unlawful possession of a motor vehicle (count 4); dangerous operation of a motor vehicle with a circumstance of aggravation (count 7); and manslaughter (count 8).  He also pleaded guilty to the summary offence of unlicensed driving as a repeat offender.  He was sentenced on count 8 to 13 years imprisonment and that offence was declared to be a serious violent offence.  On all remaining offences, he was sentenced to lesser concurrent terms of imprisonment.  The judge declared 325 days of pre-sentence custody as time served under the sentence and ordered that the applicant be prohibited from obtaining a driver's licence for life.  The effect of the sentence is that the applicant must serve 80 per cent of his 13 year sentence (almost 10 years and five months) before becoming eligible for parole.  He will then be subject to supervision in the community on parole for no more than two years and seven months. 

[2] The applicant has applied for leave to appeal against his sentence contending it is manifestly excessive.  He submits that the approach taken by the judge in increasing the head sentence on count 8 (which was declared to be a serious violent offence) to reflect offending which was not subject to serious violent offence declarations was wrong.

[3] I am not persuaded that the 13 year sentence in this case is manifestly excessive.  But in this instance I agree with the applicant's submission that the head sentence on count 8, which was subject to a serious violent offence declaration, should not have been increased to reflect offending which was not.  I would substitute a sentence of 11 years for the 13 year sentence imposed on count 8 and instead order that the two year sentence imposed on count 7 be served cumulatively upon the 11 year sentence imposed on count 8.  I would then fix the date the applicant is eligible for parole at 6 November 2019.  The practical effect of this is that the applicant will be eligible for parole almost 12 months earlier and will be subject to parole for about three and a half years instead of two years and seven months.  These are my reasons.

The applicant's antecedents

[4] The applicant was 21 at the time of his offending and 22 at sentence.  For such a young man, he had a most concerning criminal and traffic history.  It commenced in Tasmania with formal police cautions when he was a child.  In 2006 he was given community based sentences without conviction for offences including burglary, stealing, unlawfully setting fire to property, driving whilst unlicensed and stealing a motor vehicle.  In 2007 he was sentenced to six months imprisonment suspended after three months, with a good behaviour bond for 12 months for an assortment of dishonesty and traffic offences (including operating a vehicle in a public place in an exhibition of speed, acceleration or loss of traction) and three common assaults.  He escaped during the three month custodial component of that sentence and in early February 2008 was sentenced to a further one month imprisonment.  On 24 July 2008, he was convicted of driving whilst unlicensed. 

[5] His Queensland criminal history commenced in the Cairns Magistrates Court on 4 December 2008 when he was convicted and fined for drug and property offences including the unlawful use of motor vehicles.  On 13 March 2009, he was convicted and placed on 12 months probation for further property offences.  Later that month, he was sentenced to six months imprisonment, suspended absolutely for 12 months, for unlawful use of a motor vehicle on 14 March 2009, the day after his previous court appearance.  On 9 December 2009, he was sentenced to nine months imprisonment with immediate release on parole having already served 99 days pre-sentence custody for property offences committed between May and July 2009, failing to appear, and breach of probation.  Three days later, he committed the present offences. 

The prosecutor's submissions at sentence

[6] Unsurprisingly, the prosecutor at sentence emphasised that many of the applicant's convictions involved stealing vehicles; his failure to comply with community based orders, and his persistent offending in breach of a parole order.  The prosecutor tendered a schedule of facts which set out the circumstances of the present offending which occurred late on 11 December or in the early hours of 12 December 2009. 

[7] The applicant had been staying with a man who had a Staffordshire bull terrier.  On or about 12 December, the applicant left the house taking his personal belongings and the dog which was later recovered (count 1).

[8] At about 10.00 pm on the evening of 11 December, the complainant parked his 1985 Toyota Hilux 4WD utility at Bentley Park, locked it and took the keys with him.  Some time that evening the applicant stole the vehicle and drove it to Innisfail (count 2). 

[9] At about 3.00 am on 12 December, police received a complaint about a Hilux utility performing burnouts in Innisfail.  The vehicle came within a metre of pedestrians who were required to take evasive action.  Police saw several circular skid marks on the road across both lanes.  Police then drove to the Innisfail CBD where a group of about 60 people were gathered outside Rumours nightclub after it had closed for the evening.  Police heard a loud "revving" motor noise and then saw the applicant driving the stolen utility about 60 metres away.  He took a corner at about 65 to 70 kph, fishtailed, and came within one metre of the parked police vehicle and within two metres of pedestrians standing by the road.  Police took the vehicle's number plate but were unable to apprehend the applicant (count 3).

[10]  At about 4.00 am on 12 December, a witness who shared a room with the complainant investigated noises and noticed that the complainant's motor bike had gone from its usual spot.  He saw the applicant pushing it from the western side of the house into the front yard.  He yelled out and ran towards the applicant who dropped the bike and fled in the stolen utility (count 4).

[11]  Later on 12 December, the applicant abandoned the utility at a place about 450 metres from the complainant's home.  The complainant heard the sound of his car starting.  He looked out the window and saw his Mazda 323 being driven away.  The applicant drove the vehicle to Wangan, approximately 3.3 kilometres away (count 5). 

[12]  On 11 December, the complainant parked a silver Holden Commodore sedan outside his Wangan home, leaving the car unlocked with keys in the sunglasses holder above the dashboard.  At about 5.00 am on 12 December, the complainant realised that his vehicle had been stolen and contacted police.  The applicant drove the Commodore to Woree (count 6).

[13]  At about 5.20 am on 12 December, the applicant was driving the stolen Commodore south along a two way service road adjoining the western side of the Bruce Highway.  The service road had a McDonald's restaurant on one side.  Police were conducting a roadside breath testing site on the outbound lane of the Bruce Highway, directly opposite the McDonald's restaurant.  They noticed the Commodore because it was travelling in excess of 120 kph down the service road.  As the Commodore drew up parallel with the police breath test site it stopped abruptly.  The applicant repeatedly sounded the horn before slowly entering the roundabout and revving the engine loudly whilst at the same time applying the brakes, causing a burnout.  It seems likely that he was attempting to gain the attention of the police at the breath test site.  He then accelerated his vehicle through the roundabout performing a fishtail motion.  Police lost sight of the vehicle but could hear it accelerating hard (count 7).

[14]  It is then that the applicant committed by far the most serious of the offences.  The police officers returned to their motorcycle and unmarked police vehicle intending to intercept the Commodore.  They activated their emergency lights.  They saw the stationary Commodore at traffic lights on the intersection of Anderson Road and the Bruce Highway.  The traffic lights were red and the applicant's vehicle was stopped behind another vehicle which was waiting to turn right onto the Bruce Highway.  The police officer on the motor cycle dismounted.  The applicant's vehicle reversed at speed towards the motor cycle.  The applicant stopped before hitting the officer or his motor cycle but the officer was apprehensive and had his hand on his gun.  He called out to the applicant, identified himself as a police officer and requested him to stop.  But the applicant accelerated over the centre traffic island onto the incorrect side of Anderson Road and continued over another traffic island to the north bound lanes of the Bruce Highway.  He then headed south in the wrong direction down the north bound lane of the Bruce Highway into the path of oncoming traffic, accelerating to a speed police officers estimated at 140 kph.  The speed limit was 80 kph.  He travelled about 580 metres before hitting the deceased's vehicle head on.  An eyewitness described the Commodore as "just going flat out down the road" with no attempt to slow down as it approached other vehicles. 

[15]  The completely innocent deceased was a 50 year old woman driving to her employment as a baker.  The analysis of the impact area and the absence of debris to the northern side of the crash scene suggested that at the time of impact the deceased's vehicle was either stationary or almost stopped.  The force of the impact caused her vehicle to move backwards and turn 300 degrees.  The applicant's vehicle was travelling between 135 and 153 kph at impact.  The module fitted inside the applicant's vehicle at the time of airbag deployment recorded a speed of about 161 kph on impact.  The applicant's blood alcohol level at 6.45 am was 0.194 so that his blood alcohol level at the time of the accident would have been about 0.219. 

[16]  The deceased was conscious when she was taken from her vehicle by ambulance officers.  She was transferred to Cairns Base Hospital but was declared dead at 6.25 am on 13 December.  She suffered massive injuries.

[17]  The prosecutor emphasised that, on this section of the Bruce Highway, north and south bound lanes were separated by a heavily treed median strip so that it was impossible to avoid the collision by moving onto the south bound side of the road.  Once the applicant began his course of conduct, driving the wrong way down the highway at speed towards on-coming vehicles, a life-threatening collision was inevitable.

[18]  Victim impact statements were tendered from the deceased's husband, step-daughter and niece.  They graphically recorded the extreme anger, pain and grief suffered by the deceased's family as a result of the applicant's offending, both on the morning of the collision and ever after.

[19]  The prosecutor submitted the appropriate sentencing range was between 14 and 15 years imprisonment for this offence of manslaughter.  This would automatically include a declaration that the offence was a serious violent offence.  The applicant should also be absolutely disqualified from holding a driver's licence.  His offending in count 8 would have been in the worst category of examples of dangerous driving causing death warranting the maximum of 14 years had that offence been charged.  As manslaughter was charged, his offending must be treated as even more serious.  In support of these propositions he cited R v Kelly;[1] R v Frost; ex parte A-G;[2] R v Clark[3] and R v Robertson.[4]

Defence counsel's submissions at sentence

[20]  Defence counsel made the following submissions.  He contended that a sentence of eight to 10 years imprisonment was appropriate for manslaughter (count 8) alone, but conceded that a higher penalty was warranted to reflect all the other offending.  Of the cases relied on by the prosecution, Kelly was the most comparable.  He emphasised the applicant had pleaded guilty to all the offences, including manslaughter, at the committal hearing. 

[21]  He tendered a psychological report from Mr Ian Ritchie.  Test results suggested the applicant was suffering from post-traumatic symptoms, despite not reporting exposure to significant traumatic events, perhaps because he was not consciously aware of them.  His profile was consistent with quite longstanding clinical depression and he reported suicidal ideation.  He was suffering from Personality Disorder Not Otherwise Specified, perhaps with moderate levels of psychopathy.  His severe alcohol and drug abuse suggested that he used these substances to self-medicate.  His profile highlighted his aggression and rated him at high risk of committing further violent acts based on his historical, clinical and risk management features, even though his previous record did not include significant violent acts.  The applicant had not self-reported inadequacies in his upbringing; may have had learning problems at school; and a diagnosis of Conduct Disorder could not be ruled out.  He was heavily intoxicated to the extent that he claimed to have blacked out repeatedly during these offences.  His behaviour was acutely risky, impulsive and anti-social.  He drew attention to himself before the fatal collision.  The applicant had expressed remorse which appeared genuine although "somewhat shallow".  He was lacking in normal levels of empathy and because of his drunkenness he felt removed from his behaviour and its outcomes.  He had adapted to prison life and was able to stick to work and routine when sober.  This was the best opportunity for him to "face his demons" and could result in his eventual rehabilitation, providing a break from alcohol abuse and treatment for his mental health issues. 

[22] Defence counsel also emphasised the following matters.  The applicant fractured both his legs in the collision.  Whilst his remorse might be shallow when compared to others, it was genuine and this was demonstrated by his particularly early plea of guilty to manslaughter at committal.  He was still only 22 years old.  Counsel tendered a handwritten letter from the applicant to the judge and a letter of apology to the deceased's family.  I note that although the applicant had difficulty reading some of Mr Ritchie's questionnaires, these letters, apparently in the applicant's handwriting, demonstrate competent communication skills and a degree of insight and apparent remorse.  His letter to the judge concluded with:

"I hope that no-one has to go through the pain & suffering that I have caused in the mistakes that I have made & people young & old can learn from my stupid mistakes & stay clear from drink driving/drugs. 

I know that you are going to give me a big sentence for my actions which has taken a life & I understand that what I have done was totally wrong & I take full responsibility for my actions."

[23]  Defence counsel submitted that an overall sentence to reflect all the applicant's offending was 12 years imprisonment.

The judge's sentencing remarks

[24]  The primary judge adjourned to consider his sentence.  On his return, his Honour gave detailed and thoughtful reasons in which he set out the circumstances of the offending, the applicant's poor criminal and traffic history, his personal circumstances as discussed in Mr Ritchie's report, and the various exacerbating and mitigating features.  After quoting at some length from the victim impact statements and Mr Ritchie's report, the judge noted the cases of Robertson, Kelly, Clark and Frost.  The offence of manslaughter carried the maximum penalty of life imprisonment.  Had count 8 been charged as dangerous operation of a motor vehicle causing death, the applicant's offending would have been in the class of worst cases so that a penalty in the region of 14 years imprisonment would have been appropriate.  But the applicant was young, had a troubled background and had pleaded guilty "at a relatively early time".  He had made some attempt at rehabilitation whilst in prison although he still had a long way to go.  Additionally, the applicant had committed other offences for which he must be punished.  It was appropriate to impose a global penalty of 13 years imprisonment to take account of all the offending rather than to ascribe a separate cumulative penalty. 

The applicant's contentions

[25]  Counsel for the applicant made the following submissions.  The most mitigating features were the applicant's youth and his plea of guilty to manslaughter at the committal proceedings.  The applicant expressed genuine remorse in his letter to the judge and to the deceased's family.  The judge's reference to the maximum penalty for the offence of dangerous operation of a motor vehicle causing death was not helpful in determining the appropriate sentence for a manslaughter resulting from the driving of a motor vehicle.  The applicant was prejudiced by the approach taken by both counsel at sentence in encouraging the judge to impose a global penalty to reflect all the offending.  The offences other than manslaughter (count 8) would not have attracted a declaration that they were serious violent offences.  This had the consequence that the applicant could only become eligible for parole in respect of them after serving 80 per cent of the global 13 year sentence.  His youth, early plea, remorse and rehabilitative prospects would have warranted a parole recommendation in respect of the offences which were not serious violent offences after serving about 30 per cent, not 80 per cent.  A sentence of about 10 years imprisonment was appropriate on the manslaughter offence (count 8).  A sentence of about 18 months cumulative for the remaining offences should be imposed with parole at about one-third of that sentence. 

Conclusion

[26] I consider there is some merit in the applicant's contention.  When a judge is sentencing an offender who has committed a series of offences, particularly where the offending constitutes a single episode as here, it is often appropriate to impose a global sentence on the gravest offence to reflect the seriousness of all the offending.  The advantage of this approach is that it avoids the possibility of inadvertent error which all too often flows from the unintended consequences on parole eligibility and release dates when sentences are made cumulative.  Alternatively, a judge may impose a cumulative, or a series of cumulative sentences.  Either approach is acceptable provided that the ultimate sentence imposed for the offending is just.  The point now raised by the applicant was not raised with the primary judge.  On the contrary, both counsel encouraged his Honour to give a global sentence on count 8, not appreciating the unfairness to the applicant which would flow from it.

[27] The applicant should be subjected to the requirement that he serve 80 per cent of his sentence before becoming eligible for parole only in respect of that part of his offending which was declared to be a serious violent offence under Pt 9A Penalties and Sentences Act 1992 (Qld), that is, manslaughter (count 8).  Manslaughter carries a maximum penalty of life imprisonment.  The maximum penalties for the remaining offences are stealing (count 1) five years imprisonment; unlawfully using a motor vehicle (counts 2, 5 and 6) seven years imprisonment; dangerous operation of a motor vehicle (count 3) three years imprisonment; unlawful possession of a motor vehicle (count 4) seven years imprisonment; and dangerous operation of a motor vehicle with circumstances of aggravation of adversely affected by an intoxicating substance and excessive speed (count 7) five years imprisonment.

[28]  It is clear from my summary of the applicant's criminal rampage that a heavy term of imprisonment of at least 10 years had to be imposed for manslaughter (count 8) and that this must attract a serious violent offence declaration.  It is also clear that the applicant must be punished additionally for the rest of his offences, which, though also serious, should not attract such declarations.  Ordinarily, courts recognise early pleas of guilty, youth, remorse and rehabilitative prospects by setting a parole eligibility date after about one-third of the sentence.  This allows for an offender who is rehabilitating to be released earlier than otherwise into the community, and to be subjected to the rigours of parole for a longer period than otherwise.   In imposing the 13 year global sentence on count 8 the judge did not state he had reduced it to reflect that his offending not subject to a declaration entitled him to a parole eligibility date at about 30 per cent rather than 80 per cent.

[29]  This error in approach requires this Court to resentence the applicant.  Before determining how to structure the sentences for the offences in this case, the sensible starting point is to determine the appropriate sentence for the most serious offence, manslaughter (count 8).  In deciding that issue, it is helpful to review the cases upon which counsel relied at first instance and in this application. 

[30] Frost is of no assistance as a comparable sentence as it concerned dangerous operation of a motor vehicle causing death while adversely affected by alcohol, punishable by a maximum of 14 years imprisonment, not manslaughter punishable by a maximum of life imprisonment.  Its only relevance in this case is for the self-evident proposition earlier noted in R v Wooler[5] that in most instances when a death arises out of a road accident, the appropriate charge is that of dangerous driving causing death.  Ordinarily, if manslaughter is charged in respect of a motor vehicle accident causing death, the penalty can be expected to be higher than for an offence where dangerous driving causing death is charged.  This is so even when the offence has the aggravating circumstances of the driver being adversely affected by an intoxicating substance, or excessive speed and taking part in an unlawful race or unlawful speed trial.[6]  But I reject the respondent's submission, apparently accepted by the primary judge, that where manslaughter is charged the starting point in determining the sentence is necessarily 14 years imprisonment.

[31]  In Kelly, the applicant pleaded guilty to manslaughter and unlawful use of a motor vehicle.  He claimed his effective sentence of eight years imprisonment was manifestly excessive.  Kelly would have been eligible for parole after serving four years as the offence was not declared to be a serious violent offence.  He opportunistically unlawfully used a baker's van at 5.30 am one Saturday after being out all night.  He drove it at speeds up to 130 kph whilst "wandering" over the road for some 23 kilometres before the fatal collision.  A marked police vehicle with its siren activated pursued the van.  Kelly did not stop.  He drove the van onto the incorrect side of the road and into the path of an oncoming car which swerved to avoid a collision.  A kilometre or so down the road Kelly forced another vehicle to pull onto the shoulder to avoid a collision.  The police attempted to overtake the van but Kelly blocked them by again driving onto the incorrect side of the road.  About two and a half kilometres later, with the police pursuit still in progress, Kelly drove onto the incorrect side of a bridge as the deceased's vehicle approached in the opposite direction.  The deceased was unable to avoid the van because of guardrails on the bridge.  Kelly was completely on the incorrect side of the road when he collided head on with the deceased's vehicle.  The deceased's passenger also suffered injuries.  Kelly's blood alcohol level was 0.187 per cent. 

He discharged himself from hospital and flew to South Africa where he had been born and lived before coming to Australia aged 11.  Some years later he consented to his extradition to Queensland.  Kelly was 22 at the time of his offences and 25 at sentence.  He came from a supportive family.  He had some minor criminal history including unlawful use of a motor vehicle and stealing for which he was sentenced to probation and community service without conviction.  He was subject to this probation order at the time of his offending.  He had rehabilitated himself in South Africa, obtaining employment and saving money with a view to marrying a young woman with whom he had commenced a relationship.  He had become a committed Christian and had ceased drinking alcohol.  He pleaded guilty at an early stage and showed genuine remorse. 

This Court noted that his unlawful use of the vehicle, his utter disregard of police attempts to pull him over, and his blood alcohol level were aggravating features.  He was on probation for the offence of unlawful use of a motor vehicle.  He killed an innocent man which caused much sadness amongst his friends and relatives.  Although Kelly had rehabilitated, he did so in circumstances where he had fled to another country.  The Court was not persuaded the sentence was manifestly excessive. 

[32]  In Clark, the applicant pleaded guilty to two counts of manslaughter and was sentenced to 10 years imprisonment on each count.  She took her husband's car to drive to a Centrelink office.  She mounted the footpath to overtake a car which she considered was travelling too slowly.  She struck and killed two youths aged 15 and 16.  She had taken prescription drugs and alcohol.  She gave police a false story in which she blamed the deceased youths.  She was not licensed to drive a motor vehicle and had been involved in other accidents whilst under the influence of prescription drugs.  Her husband, who continued to be supportive, had attempted to prevent her from driving and immediately reported his car as stolen so that the police would find her.  She was 35 at the time of the offending.  She had previous convictions for burglary and possession of dangerous drugs and was on probation at the time.  She had a history of mental health problems including bi-polar disorder and symptoms consistent with benzodiazepine dependency disorder and alcohol abuse.  A psychiatric report noted that her intoxication was the major component in the offences but her disordered mental state also impaired her decision-making ability. 

This Court determined that the judge did not give sufficient recognition to Clark's diminished moral culpability as a result of her bi-polar disorder and to her plea of guilty.  Although a late plea was not evidence of remorse, it was of utilitarian value.  Clark's recklessness in causing the deaths of two youths, even with the mitigating features, warranted a sentence heavier than in Kelly.  This Court substituted a sentence of nine years imprisonment on each count, again without a serious violent offence declaration.

[33] In Robertson, the applicant was charged with murder (count 1), dangerous operation of a vehicle causing grievous bodily harm whilst excessively speeding and leaving the scene (count 2) and three counts of assault occasioning bodily harm (counts 3, 4 and 5).  He pleaded not guilty to murder and to counts 3, 4 and 5, but guilty to count 2.  After a seven day trial, the jury found him not guilty of murder but guilty of manslaughter and counts 3, 4 and 5.  He was sentenced to 14 years imprisonment for manslaughter and to concurrent terms of imprisonment for the remaining charges.  He contended that the 14 year sentence for manslaughter was manifestly excessive. 

The circumstances of Robertson's offending were as follows.  After an altercation in a bottle shop car park with the deceased and one of his passengers, the deceased drove off saying, "See you later, old man."  Robertson claimed other offensive words were used and an obscene gesture given.  He drove after the deceased's car, colliding with its rear at a speed of less than 60 kph.  The deceased accelerated and drove through a red light in a left hand lane without traffic and Robertson followed.  The cars accelerated up to at least 70 to 80 kph with Robertson deliberately ramming the rear of the deceased's vehicle several times.  After the cars crested a rise and travelled downhill, Robertson repeatedly drove into the rear of the deceased's car.  The final collision occurred with the vehicles travelling at between 120 to 140 kph.  The deceased's car spun out of the control and collided with a light pole, almost instantly killing the deceased and injuring his passengers.  Robertson left the scene. 

Provocation was not a factor; the jury verdict was on the basis that Robertson did not intend to kill or do grievous bodily harm to the deceased or his passengers.  He was 47 at the time and 49 at sentence.  He had had a troubled upbringing, been unsuccessful in forming long term relationships, and had difficulties in controlling his anger.  He had some criminal history for minor offences of dishonesty and drugs; unlawful use of a motor vehicle; driving a motor vehicle under the influence of alcohol and a significant traffic history including nine convictions for exceeding the speed limit.  His licence was suspended at the time of the manslaughter offence as a result of an accumulation of demerit points.  When spoken to by police, he expressed disinterest in the condition of those in the deceased's vehicle.  He offered to plead guilty to manslaughter but the prosecution did not accept that offer and he did not plead guilty to manslaughter on his arraignment. 

This Court considered of limited relevance Kelly and R v Folland,[7] where a nine year sentence was imposed with a serious violent offence declaration when Folland deliberately drove over and killed a man who had provoked Folland's conduct.  Clark was the closest comparable decision.  But Robertson's susceptibility to anger was well short of a mental disorder like that from which Clark suffered and which lessened his moral culpability.  There was no evidence that Robertson had particularly good prospects of overcoming the personal difficulties which contributed to his offending.  Further, Clark had pleaded guilty to manslaughter, although at a late stage.  Unlike Robertson, she put at risk many vulnerable pedestrians who might have been on the footpath at the time she drove dangerously.  In driving a car over a footpath in a busy area to avoid a line of traffic, she was extraordinarily reckless.  But Robertson's conduct was more serious than Clark's.  His ramming of the deceased's vehicle at speed and then callously leaving the scene without concern for the victims called for a severe sentence.  He caused the death of one young man, the grievous bodily harm of another and injured three further passengers with devastating impact on their families.  A sentence in excess of that imposed in Clark was appropriate.  But Robertson's offending, which arose out of an extraordinary over-reaction,

"… did not have those additional features such as evasion of the police, disregard of a police direction, or considered persistence in highly dangerous driving over a long period and distance, which would have put this into the worst category of dangerous driving or criminal negligence."

This Court reduced Robertson's sentence for manslaughter from 14 years to 12 years and for count 2 from 12 years to 10 years.

[34]  These cases provide a useful overview of the sentencing range for manslaughter driving cases but none are closely comparable to the facts of this case.  If the present applicant's manslaughter offence is considered on its own, it must be considered as comparable to Kelly's offending which involved a police chase, alcohol and an extended period of dangerous driving.  But Kelly's prospects of rehabilitation were far more promising than this applicant's.  Clark's offending which killed two young men was arguably objectively more serious, but she was less morally culpable than this applicant because of her psychiatric illness.  Whilst some aspects of Robertson's offending were less serious than the present, he notably killed one young man, but he also caused caused grievous bodily harm to another and caused minor injuries to three more people.  Further, Robertson was a mature man who did not have the benefit of youth, an early plea of guilty and remorse.  Overall, the applicant's case warranted a slightly lesser sentence than Robertson.

[35]  I cannot accept the respondent's contention, following from the passage quoted from Robertson set out above,[8] that this case, serious as it is, is in the worst category of dangerous driving or criminal negligence.  Those observations were made in the context of explaining why Robertson was not in the worst category of cases.  What distinguishes the present case from being in the worst category of cases is that the applicant was young; he pleaded guilty at the very early stage of committal proceedings to the grave offence of manslaughter; he wrote letters demonstrating remorse to the judge and the deceased's family; and he was making progress in prison in his lengthy path towards rehabilitation.  Further, although his criminal history was damning, he did not have prior convictions for dangerous operation of a motor vehicle causing death or serious injury.  Count 8 was, however, a grave example of manslaughter arising from the criminally negligent driving of a motor vehicle.  The aggravating features were that the applicant provoked a police chase before driving the wrong way at high speed in a stolen vehicle whilst adversely and grossly affected by alcohol on a section of the Bruce Highway where oncoming traffic could not have avoided a life-threatening collision.  He did not have the advantage of prior good conduct or an unblemished traffic history.

[36]  Weighing up the many exacerbating and the few mitigating features, a sentence on count 8 alone of 11 years imprisonment, with a declaration that the offence is a serious violent offence, is appropriate. 

[37]  In imposing a cumulative sentence to reflect the applicant's remaining offences, questions of totality require moderation to ensure the overall sentence is not crushing.  The global sentence chosen by the primary judge, one of 13 years imprisonment, meets that criterion. But, as I have explained, it did not reflect that counts 1 to 7 were not serious violent offences and in this case warranted parole eligibility after about one third.  It is especially important for sentencing judges to make this distinction where, as here, youthful offenders have pleaded guilty, shown remorse and taken steps towards their rehabilitation so that the time spent in the community on parole after a lengthy jail sentence can be lawfully maximised.  This is in the community interest, both in the rehabilitation of the offender and in protection of the public.

[38]  I would vary the sentence imposed at first instance by substituting a sentence of 11 years imprisonment for the 13 year sentence imposed on count 8, and by ordering that the two year sentence imposed on count 7 be served cumulatively with the sentence imposed on count 8.  I would fix the date the applicant be eligible for parole as 6 November 2019.  This effectively gives parole eligibility on the sentence imposed on count 2 after eight months, that is, after one-third.  I would otherwise confirm the sentence imposed at first instance.  In practical terms, this means that the applicant will be eligible for parole almost 12 months earlier than under the primary judge's sentence and will be subject to parole for a period of about three and a half years instead of two years and seven months.  A sentence structured in this way more fairly reflects the applicant's offending.  It has the added advantage of providing both the community and the applicant with the benefit of a longer period during which he will be subject to the rigours of a parole order.  This should assist him in the potentially problematic transition from a lengthy period of incarceration to living and working in civil society. 

[39]  The indictment has been incorrectly endorsed and is inconsistent with the sentencing judge's order in so far as it states: "Direct offending be classified as serious violent offences."  The sentencing judge declared only "that the offence of manslaughter is a serious violent offence."  It may be that the verdict judgment record which is not in the appeal record book needs correction.

[40]  As Fryberg J points out, the applicant argued grounds of appeal which were not in the notice of appeal.  I agree with his Honour that the solicitors for the applicant should be directed to file an amended notice of appeal in accordance with 9.7 and 9.8 of their outline of argument within 48 hours of the delivery of these reasons.

[41]  I propose the following orders:

1.  Grant the application for leave to appeal.

2.  Allow the appeal to the extent of:

a) substituting the period of 11 years for the period of 13 years on count 8; and

b) ordering that the two year sentence on count 7 be served cumulatively on the sentence imposed on count 8; and

c) fixing the date the applicant is eligible for parole at 6 November 2019.

3.  The sentence imposed at first instance is otherwise confirmed.

[42]  WHITE JA:  I have read the reasons for judgment of the President and agree with her Honour and the orders she proposes.  I also agree with the observations of Fryberg J.

[43]  FRYBERG J:  It has become increasingly common in sentence applications to find that the sole ground of appeal is that the sentence imposed was manifestly excessive in cases where at least some of the points to be argued are quite different.  The present case is another example.  Without seeking leave to amend the notice of appeal, the applicant submitted:

“9.7The reference to the maximum penalty for dangerous operation is of doubtful relevance.  The sentence for vehicular manslaughter has been the subject of several cases.  The relevant maximum is life imprisonment.  The appropriate point in the range is best gauged by reference to cases rather than the statutory maximum for a cognate offence.  Certainly, any attempt by the defence to use lenient dangerous driving causing death cases as comparable decisions would have been given scant regard.

9.8The approach of increasing the head sentence to reflect the dishonesty offences had the capacity to prejudice the applicant because stealing and UUMV would not have attracted SVO declarations.  This was not brought to the learned judge’s attention.”

Those submissions raised distinct points of law, which ought to have been the subject of specific grounds of appeal.  They are not covered by the ground in the application.[9]

[44]  In circumstances where the operative sentence is for an offence the subject of an SVO declaration, it is a mistake to impose a global sentence reflecting non-declarable convictions unless the fact that those convictions are not declarable has been taken into account in reducing what would otherwise have been the global sentence.  I agree with what the President has written on this aspect of the application.[10]

[45]  I also agree with her Honour that in none of the cases cited are the facts closely comparable with those of the present application.  The conduct presently under review was particularly heinous.  In the absence of mitigating factors they would in my judgment warrant the maximum penalty of 14 years imprisonment had the applicant been charged under s 328A of the Criminal Code.  Given that the charge is manslaughter,[11] a sentence of 14-15 years imprisonment would be appropriate in the absence of mitigating factors.

[46]  Defence counsel below identified those factors.[12]  If the manslaughter charge stood alone, the appropriate sentence to take them into account would be 12 to 12½ years imprisonment.  I particularly agree with what the President has written about the community interest in parole.

[47]  The manslaughter charge did not stand alone.  I need not repeat the description of the other offending.  The sentence ultimately imposed must reflect it.  It must also reflect the totality of the applicant’s offending.  Cumulative sentences totalling 14 years or more would not reflect that totality; they would be too harsh.

[48]  I agree with the orders proposed by the President.  The sentence of two years imprisonment on count 7 may be regarded as a global penalty imposed to reflect the remaining counts, apart from count 8.

[49]  I would also direct that the solicitors for the applicant ensure that an amended notice of appeal reflecting the submissions described above is filed within 14 days of the date of delivery of these reasons for judgment.  This Court is a court of record and the integrity of its record ought to be preserved.[13]