R v Winter [2012] NSWCCA 218

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: R v Winter [2012] NSWCCA 218 Hearing dates: 12 September 2012 Decision date: 16 October 2012 Before: McClellan CJ at CL at [1] Johnson J [57] Garling J at [58] Decision: 1. Uphold the appeal and quash the sentences imposed in the District Court. 2. In relation to count 1, sentence the respondent to a non-parole period of 4 years commencing on 17 November 2011 and concluding on 16 November 2015 with an additional term of 3 years expiring on 16 November 2018. 3. In relation to count 2, sentence the respondent to a non-parole period of 4 years commencing on 17 November 2013 and concluding on 16 November 2017 with an additional term of 3 years expiring on 16 November 2020. Catchwords: CRIMINAL LAW - Crown appeal - sentence - whether sentence for manslaughter is manifestly inadequate - where respondent drove vehicle in circumstances where she was aware she may lose consciousness - where respondent had lost consciousness while driving on prior occasion - sentence manifestly inadequate - respondent re-sentenced - sentence increased. Legislation Cited: Crimes Act 1900 Criminal Appeal Act 1912 Cases Cited: Borkowski [2009] NSWCCA 102; (2009) 195 A Crim R 1 Dinsdale v R [2000] HCA 54; (2000) 202 CLR 321 Everett v R (1994) 181 CLR 295 Gillett [2005] NSWDC 3 Gillett v R [2006] NSWCCA 370; 166 A Crim R 419 Green v The Queen [2011] HCA 49; (2011) 244 CLR 462 Griffiths v R (1977) 137 CLR 293 R v Cramp [2004] NSWCCA 264 R v Forbes [2005] NSWCCA 377; (2005) 160 A Crim R 1 R v Jurisic (1998) 45 NSWLR 209 R v Wall [2002] NSWCCA 42; (2002) 71 NSWLR 692 R v Whyte [2002] NSWCCA 343; (2002) 55 NSWLR 252 Wong v R [2001] HCA 64; (2001) 207 CLR 584 Woodbridge v R [2010] NSWCCA 185; (2010) 208 A Crim R 503 Category: Principal judgment Parties: Crown (Appellant) Karen Winter (Respondent) Representation: Counsel: T Smith (Crown/Appellant) C Smith (Respondent) Solicitors: Solicitor for Public Prosecutions (Appellant) Legal Aid of NSW (Respondent) File Number(s): 2011/107456 Decision under appeal Date of Decision: 2012-02-29 00:00:00 Before: Toner DCJ File Number(s): 2011/107456

Judgment 1McCLELLAN CJ at CL: The respondent, Karen Winter, pleaded guilty to two counts of manslaughter that were committed when she was driving a motor vehicle and collided with, and killed, two pedestrians. The offences, which are contrary to s 18(1)(b) of the Crimes Act 1900, each carry a maximum penalty of 25 years imprisonment. There is no standard non-parole period. 2The respondent pleaded guilty at the earliest opportunity and was afforded a 25% discount by the sentencing judge. His Honour imposed a sentence of 3 years imprisonment in relation to each offence and provided for an accumulation of 1 year. His Honour imposed a single non-parole period of 2 years. In the result the respondent was sentenced to a total of 4 years imprisonment with a non-parole period of 2 years. 3The Director of Public Prosecutions has appealed the leniency of the sentences under s 5D of the Criminal Appeal Act 1912. It was submitted that the sentencing judge erred by finding that epilepsy caused or contributed to the offences and that his Honour failed to have regard to all the circumstances surrounding the respondent's driving on the day of the offences. It was further submitted that the sentences are manifestly inadequate. 4The respondent was aged 43 at the time of the offences. She lived at Edgeworth with her 19 year old son and a friend, Anita McCarthy. Ms McCarthy apparently moved in with the respondent in about September of 2010. Not long before Ms McCarthy took up residence the respondent had been involved in an accident in her work vehicle. The respondent told Ms McCarthy that she had "blacked out" whilst driving her work van on deliveries and had crashed into a letter box. Ms McCarthy assisted the respondent to find a replacement letter box and deliver it to the owner. 5Ms McCarthy also became aware that the respondent had other medical problems. She understood that the respondent was taking morphine tablets at night for pain and that she suffered from migraine headaches. 6The respondent was employed as a delivery driver. Her usual duties involved the collection and delivery of sanitary bins from various locations in Newcastle and the Central Coast. On the day of the collision, 7 October 2010, she was driving a white Toyota HiAce van. 7On that day the respondent commenced her rounds at about 7 am. At about 10.30 am she went to the Warners Bay Medical Centre at Warners Bay as part of her rounds. Whilst she was at the Centre she suffered a vasovagal episode and almost fainted when she was completing the exchange of the hazard waste bins. She required medical treatment and was treated by Dr Carruthers at the Centre. She told the doctor that she was suffering from a migraine headache that was causing her severe pain. The trial judge found that she had had this headache for about 24 hours. 8Dr Carruthers prescribed a treatment of 10 milligrams of Maxolon and 15 milligrams of morphine by injection. The nurse who gave the injection told the respondent that she was not to drive her vehicle for the rest of the day. The respondent lied and told the nurse that she had a colleague in her van outside who would be able to drive her home. Instead of complying with the nurse's direction after receiving the injection the respondent left the surgery and went to her vehicle and drove home. She arrived at about 11.30 am and was met by Ms McCarthy. The respondent asked Ms McCarthy to ring the medical centre to tell them that the respondent had arrived home safely and to also tell them that Ms McCarthy had been the driver. Ms McCarthy did as she was asked. 9Ms McCarthy encouraged the respondent to lie down for a while and offered to ring her employer to advise that the respondent would bring the work van back the following day. However, the respondent did not take up this offer. She went to her bedroom and smoked two or three cones of cannabis and, after about 35 to 45 minutes, told Ms McCarthy that she was going to take the van back to her employer. Ms McCarthy asked whether the respondent was feeling alright. The respondent replied "I'm fine. I feel better." Ms McCarthy offered to go with the respondent but she rejected the offer saying "No, it's okay, I'm fine. The sooner I get up there, the sooner I get back." The sentencing judge found that the respondent left home at about 12.45 pm. 10At about 2 pm the respondent was driving the van east along Main Road, Edgeworth towards the intersection of Main Road and Minmi Road. The speed limit in that area was 70 kilometres an hour. The speed the respondent was travelling is not known. The weather was overcast and the roadway dry. 11At this location Main Road consists of two traffic lanes in each direction with additional turning lanes in each direction for traffic turning from Main Road into Minmi Road. For vehicles travelling east, the Main Road presents a generally level section of roadway with a slight right-hand curve through the intersection. At the intersection there is a dedicated pedestrian crossing controlled by traffic lights. The Edgeworth Tavern stands to the northern side of the intersection and has concrete footpath outside between the tavern and the road. 12As the respondent approached the intersection Ms Janet Sharples and Ms Rebecca Weir were standing on the footpath outside the tavern waiting to cross the road. A witness, Ms Jacqueline Hornery, was also driving along Main Road approaching the intersection. Ms Hornery was travelling east on Main Road in the lane nearest the median strip and was travelling about 50 to 60 kilometres per hour. She saw the respondent's vehicle overtake in the left lane and travel through the intersection while the traffic lights were green. 13At the point where Main Road began to curve to the right the respondent's vehicle continued straight on, colliding with the northern kerb. The front side of the van then collided with the traffic light on the edge of the footpath, knocking it horizontal. It then continued on, mounted the footpath in front of the Tavern and collided with Ms Sharples and Ms Weir. Both Ms Sharples and Ms Weir were severely injured. Ms Sharples died at the scene and Ms Weir a short time later in hospital. 14After colliding with the pedestrians the respondent's vehicle continued on until it hit the wall of the Tavern. The respondent remained in the driver's seat until Mr Raub, a bystander, reached in and turned the engine off. When the vehicle began to roll backwards the respondent put the vehicle into park which stopped it from moving any further. The respondent then spoke to Mr Raub saying "What's happened?" Mr Raub responded "I'm not sure. Are you okay?" The respondent apparently replied "Yes, I'm fine." 15When the respondent was still in the vehicle she was spoken to by Ms Hornery who observed her to be looking straight ahead and shuffling through papers on a clipboard. The respondent looked at Ms Hornery and said "What's up? What's going on?" Ms Hornery replied "You have been in an accident. I want you stay in the car." The respondent then said "Did I do this? Did I cause this? Did I hit someone?" Ms Hornery replied "People have been hit. I want you to stay in the car." 16Ms Hornery concluded that the respondent had no idea what had happened. The respondent then alighted from the van and dropped to the ground crying and saying "Did I do this?" The respondent remarked that "I have had a headache all day." Ms Hornery said that the respondent seemed really strange one minute and panicky about the accident the next and that she "Didn't seem to know where she was." When the police arrived the respondent told them that she had a migraine headache. She said that she remembered travelling in the slow lane approaching the traffic lights but remembered nothing further about the accident. She said that "I always slow down for those traffic lights so I wouldn't have been doing faster than 60 kilometres an hour." 17The sentencing judge recorded that the respondent denied to the constable who questioned her that she had suffered from blackouts or fainting. When she was asked when she had last seen a doctor she replied "About two months ago and it was for the flu." 18The respondent was subjected to a breath test which proved negative. However, when she was later taken to hospital for blood and urine samples she was found to have 0.006 milligrams per litre of delta-9-tetrahydrocannabinol and 0.036 milligrams per litre of delta-9-THC acid in her blood. Metoclopramide was also found in her urine sample. Dr Judith Perl, a forensic pharmacologist, later certified that the respondent was "under the influence of cannabis to the extent that her driving ability was impaired, but it is also possible that there was additional impairment due to some uncontrolled medical condition capable of producing blackouts." 19The respondent later spoke to her treating doctor. The doctor recorded that the respondent told her that she could remember approaching the traffic lights and slowing down at the intersection. The respondent said that as she approached the intersection she felt she was going to be sick and planned to pull over after the lights. The respondent told the doctor that she remembered a man opening the door of her vehicle after the collision. 20A mechanical examination of the vehicle found no mechanical defect that may have contributed to a collision. 21Having found these facts, the sentencing judge turned to consider the extent of the moral culpability of the respondent. He identified the question of concern to him as being "the extent of her knowledge of her vulnerability to have blackouts." 22The sentencing judge acknowledged that the agreed facts included the statement that the respondent had a vasovagal episode at the Warners Bay Medical Centre earlier that day during which she almost fainted. His Honour referred to the other events which happened at the Centre to which I have previously referred. 23The sentencing judge found that the respondent had blacked out just before the accident. His Honour rejected evidence given by the respondent that she had not blacked out on any previous occasion. His Honour said: "I do not believe her. Evidence tendered in reply overwhelmingly demonstrates otherwise." His Honour referred to hospital notes from the Calvary Mater hospital of 30 June 2010, 4 months before the accident, which include as part of the respondent's history: "Some months ago collapse in shower, woke on shower floor with black eye, sat on floor for some time, memory poor, saw general practitioner next day." 24His Honour also referred to the fact that there was a further medical note stating that the respondent had reported dizzy spells and collapsing in public on 8 March 2010. Furthermore, there is a reference to similar episodes in 1998 when the respondent lost consciousness. 25There was evidence before his Honour that after the incident giving rise to the charges the respondent was diagnosed with epilepsy and is now being medicated for it. However, the sentencing judge also found that the evidence "shows that there was a connection between her migraine headaches and previous losses of consciousness." His Honour then said: "Although the episode of 30 June 2010 [a reference to the notes from the Calvary Mater hospital] does not appear to have been preceded by a headache, that is, the one where she collapsed in public, on the day of the accident she told Dr Carruthers that she had had a migraine for the preceding 24 hours. She also felt faint at the premises at Warners Bay, but without a loss of consciousness. After the morphine injection she was advised not to drive. That advice, however, was not given because of a history of a loss of consciousness preceded by headaches as the evidence before me demonstrates, as it was not known to Dr Carruthers. In other words, what Dr Carruthers was treating was her complaint of migraine headache and the warning was given to her as a conventional warning given to all those who receive morphine injections." 26His Honour then expressed a conclusion that the blackout suffered by the respondent was the "proximate cause" of the accident and that that blackout had not been caused by the cannabis smoked by the respondent. 27His Honour then referred to Dr Perl's certificate and made the following finding: "I find that the offender's culpability is founded upon the fact that she knew that after or when she had migraine headaches she might lose consciousness and that in the hours before this accident she had had a migraine of extended duration. She had become light-headed at least to the extent that she required medical attention and yet she chose to drive the van with the attendant risk that she might lose consciousness whilst doing so and thus cause an accident such as the one which eventuated." 28His Honour stated that although the respondent had been warned not to drive he did not believe this had a particular role to play in the cause of the accident. His Honour said: "The reason she blacked out was not because of the morphine injection. The reason she blacked out was because of the underlying medical condition that she endured, and she knew it. She knew that when she had migraines there was a risk that she could lose consciousness and she drove that day knowing that that risk existed." 29His Honour considered the culpability of the respondent in the context of the decision in the District Court in Gillett [2005] NSWDC 3. His Honour did not conclude that the respondent's culpability was as high as that of Ms Gillett, who had set about to deceive the Roads & Traffic Authority by deliberately lying when she denied that she suffered from epilepsy when applying for the renewal of her licence. 30His Honour went on to conclude that in all probability the respondent's blackouts derived from the fact that she suffered from epilepsy, although that was not diagnosed at the time of the accident. Although he expressed this conclusion he also said "she did, however, know that she was prone to lose consciousness in circumstances such as those which prevailed in the hours before this accident." 31His Honour then turned to consider the subjective circumstances of the respondent. He described her as a "battler" who had worked as a nurse but left that calling to look after her aging parents. She has a son who lives with her in Department of Housing accommodation but as a result of the accident she has lost that house. His Honour concluded that she had a social network but "as her referees demonstrate, will need support to re-integrate into the community on her release." For this reason his Honour found special circumstances. 32His Honour found that although the respondent denied having previous blackouts she accepted responsibility for the present crimes. His Honour concluded that the respondent was genuinely remorseful. His Honour also found that, although the respondent was on a bond at the time of the offence, she nevertheless had good prospects of rehabilitation which will be assisted by her supervision by the Probation and Parole Service. This finding was relevant to his Honour's finding of special circumstances. 33The sentencing remarks did not express a conclusion in relation to the level of culpability of the respondent. Although his Honour found that it was not as high as that of Ms Gillett he did not otherwise make a finding in respect of that matter. His Honour also indicated that he was mindful of what had been said by this Court in Borkowski [2009] NSWCCA 102; (2009) 195 A Crim R 1 but concluded this was not a case where the offender's driving can be characterised as a flagrant breach of the road rules. 34Although the Crown advanced an argument in this Court that his Honour had erred in finding that epilepsy caused or contributed to the offence, I do not believe that that issue is of any significance. It may be, as his Honour suggested, that the respondent's blackouts are the result of an epileptic condition. However, the respondent's moral culpability is found in the fact that she was aware that when she was suffering from migraine headaches there was a risk that she would lose consciousness. The critical finding that his Honour made was that the respondent drove on the relevant day "knowing that that risk existed." 35Although his Honour did not place any significance in the advice that the respondent had been given that she should not drive because she had received a morphine injection, his Honour found that the respondent ignored that advice. His Honour also found that she smoked cannabis and her blood tests revealed that she was affected to an extent that her driving ability was impaired. 36Having regard to the findings which his Honour made the significant issue for this Court to determine is whether or not the sentences that his Honour imposed sufficiently reflect the respondent's moral culpability. I am in no doubt that they do not. 37This Court has regrettably on many occasions had to consider circumstances where a person has driven a motor vehicle when, by reason of their knowledge of an existing medical condition or a state of inebriation, this should not have occurred. In Gillett v R [2006] NSWCCA 370; 166 A Crim R 419, which involved the offence of dangerous driving causing death, I said at 437-438 [47]: "Where, as in the present case, a person takes control of a motor vehicle in circumstances where they know they represent a real risk to others and it is a risk over which they have no control, they must expect that, if the risk materialises, the penalty which will be imposed will reflect the fact that their offending had a high degree of criminality. A licence to drive a motor vehicle is a privilege which carries with it significant obligations. Those obligations require the driver to not only drive safely on the road but also to ensure that by reason of their physical health and capacity they do not endanger the lives of others. If that obligation is not met and injury or death is occasioned to others, a severe penalty will be appropriate in most cases. Every user of the road accepts a risk of injury or death. Those risks are only acceptable if other users of the road do what they can to minimise or avoid identifiable risks." 38In Woodbridge v R [2010] NSWCCA 185; (2010) 208 A Crim R 503 R S Hulme J examined a number of cases in which an offender was sentenced for manslaughter arising from the use of a motor vehicle. 39His Honour said at [24]-[35]: "Sentences imposed in earlier cases also provide some guidance in the case of both offences. The Appellant in R v Cramp [1999] NSWCCA 324; (1999) 110 A Crim R 198 was found guilty of one count of manslaughter. The deceased was 16 and a learner driver whom the Appellant had encouraged to drink and drive his car because he was too drunk to drive. His encouragement extended to her driving approximately 35 kilometres over a 3 hour period interrupted by stops to drink more alcohol and at speeds of up to 150 kph. In the car were 2 younger brothers of the deceased who, a number of times urged the deceased to slow down. Ultimately the deceased lost control of the car. She was killed instantly and the Appellant received severe head injuries. The blood alcohol concentration of the deceased was 0.167 and of the Appellant some 5 hours after the collision, 0.103. Expert evidence estimated his range at the time of the collision to have been between 0.13 and 0.178. This Court dismissed an appeal against a sentence that included a non-parole period of 7 years and an additional term of 2 years and 4 months. Barr J, with whom Sully and Ireland JJ agreed, said that the case was of such a serious nature as to be seen as falling into the worst category of cases of its kind and that the sentence imposed was not manifestly excessive. In R v Do [2000] NSWCCA 459 the Respondent to a Crown appeal had been found guilty of 2 counts of manslaughter. He had driven his fully laden truck with a gross weight of 21 tonnes along Mona Vale Road. When he reached the top of a hill near where there was a sign that read, "Truck must use low gear", the vehicle was seen to accelerate very quickly reaching what Beazley JA described as a "terrifyingly high speed". Thereafter, he tried unsuccessfully to put the truck into gear and control it. However, at the bottom of the hill the vehicle mounted the apron of a roundabout, collided with a car killing the driver and then a house killing an occupant. Beazley JA, with whom Wood CJ at CL and O'Keefe J agreed, said that the evidence did not establish deliberate acceleration on the part of the Respondent and that it was apparent that the basis upon which he had been sentenced was "that there had been a criminally negligent act at some point, probably at the commencement of the downgrade, involving an 'initial abandonment of responsibility'". The Respondent was a hard working family man whose subjective factors were referred to as "substantial". He was sentenced on each charge to concurrent terms of imprisonment of 4 years comprising a minimum term of 3 years with an additional term of 1 year. In dismissing the appeal, Beazley JA observed that the sentences imposed were not manifestly inadequate although "at the very bottom of the range". The Crown had not sought to challenge the concurrency of the sentences. In R v Ryan (2003) 39 MVR 395 this Court reduced to a head sentence of 6 years including a non-parole period of 4 years, a sentence of 7 years and 6 months including a non-parole period of 5 years for one count of aggravated dangerous driving causing death. An offence of knowingly failing to stop and give assistance was taken into account and a 25% discount had been allowed for the offender's plea. The principal offence carried a maximum penalty of 14 years imprisonment. The circumstances of the offence were that in a 60 kph area the offender had been driving at in excess of 135 kph and, after a braking skid that extended for something of the order of 64 metres, ran into the rear of another vehicle stopped at traffic lights, forcing that vehicle into an intersection. He had been observed for some 3 kilometres prior to the collision travelling at speeds estimated at between 90 and 140 kph. The offender had a significant record for driving offences but was otherwise of good character and Grove J, with whom Ipp JA and Shaw J agreed, held that the original sentencing judge had erred in his approach to this. ... In R v Cameron [2005] NSWCCA 359; (2005) 157 A Crim R 70, the Respondent pleaded guilty to 3 counts of manslaughter and one count of aggravated driving in a manner dangerous causing grievous bodily harm. Although never licensed, the Respondent had been permitted to drive a powerful 5 litre V8 car in which were 4 passengers including the car's owner. The Respondent drove into a 50 kph area in Parkes at speeds considerably in excess of 100 kph and despite requests by his passengers to slow down. He lost control and ultimately smashed into a telegraph pole splitting the vehicle in two and resulting in the death of 3 passengers and injury to the front seat passenger. The Respondent had prior convictions the details of which are not disclosed in the report and was on a 2 years good behaviour bond at the time of the offences, a circumstance that was regarded as a matter of aggravation. When a blood sample was subsequently taken in hospital, the Respondent's blood alcohol content was 0.114. Expert opinion was that at the time of collision it was higher. By the time of sentence he was regarded as genuinely contrite and remorseful. He had been attacked and rendered unconscious in prison and was on protection. On each count of manslaughter the Respondent was originally sentenced to imprisonment for 6 years with a non-parole period of 2 years. There was partial accumulation of the sentences with the overall period in custody being 4 years with an additional 4 years sentence. In a Crown appeal, this Court held that the sentences were manifestly inadequate and re-sentenced the offender on each count of manslaughter to imprisonment for a non-parole period of 4 years and a balance term of 3 years, accumulating those sentences to result in an effective sentence of a non-parole period of 6 years and a balance term of 3 years. The sentence imposed on the grievous bodily harm charge was made concurrent. Grove J, with whom Hislop J agreed, observed that the Respondent's conduct must be regarded as being of a high order of culpability, and said that the sentence on each manslaughter count imposed by this Court was arrived at after reducing a notional sentence of 9 years that took account of objective and subjective factors by 2 years for the offender's plea and that in re-sentencing the usual restraint in Crown appeals was being applied. McClellan CJ at CL who also agreed with Grove J, observed that those sentences were the minimum that could be imposed and, but for the fact that the proceedings were a Crown appeal and the offender had to be sentenced at the lowest end of the available range, a significantly greater sentence may have been appropriate. In Borkowski [2009] NSWCCA 102; (2009) 195 A Crim R 1, the Respondent to a Crown appeal had pleaded guilty to 2 counts of manslaughter. He had been engaged in racing 2 other vehicles along the Great Western Highway at a speed of about 120 kph in a 60 kph speed zone. The Respondent had a blood alcohol reading of 0.031 at the time a blood sample was taken in hospital but the expert Dr Perl thought that his blood alcohol level at the time of the collision was likely to have been 0.063. The blood also revealed the presence of the residue of cannabis, and Dr Perl was of the opinion that there would have been some impairment of driving skill from intoxication both by alcohol and drugs. The vehicle he was driving struck a vehicle that was making a right hand turn out of the highway into a side street, killing the driver and passenger in that vehicle. After a discount of 25% for his pleas, the Respondent was sentenced on each count to imprisonment for a fixed term of 4 years on one count and for 7 years including a non-parole period of 4 years on the second. The sentences were partially accumulated such that the effective total term was of 6 years non-parole with an additional term of 3 years. The Respondent was 37 and had a criminal record that was regarded as disentitling him to the leniency that a first offender might have received. Although the appeal was dismissed on grounds of parity with a co-offender against whom no Crown appeal had been brought, Howie J, with whom McClellan CJ at CL and Simpson J agreed, said that the sentences were manifestly inadequate and that, had the Court interfered, and notwithstanding the principle of double jeopardy, the very least sentence that could have been imposed was one of 12 years with a non-parole period of 9 years. (It is not entirely clear but it seems to me probable that Howie J was talking of an effective total sentence for the 2 offences.) His Honour also remarked (probably with the concurrence of the other members of the bench), that had he been sitting at first instance he would have imposed more. His Honour also observed that the fact that the racing in which the Respondent was engaged involved 3 vehicles, the potential dangerousness to the public was increased well beyond the criminality considered in R v Cameron. " 40In Ryan Grove J created a table that set out the details of ten previous cases of aggravated driving causing death. This is of course a lesser offence than manslaughter. It is unnecessary to explore the detail of each case in this judgment. However, it is apparent that the sentence imposed in the present matter is significantly lower than some of the sentences for the offences included in Grove J's table. 41This Court has long recognised the difficulties in identifying the appropriate sentence for the offence of manslaughter. The problems were discussed by the Chief Justice in R v Forbes [2005] NSWCCA 377; (2005) 160 A Crim R 1. Both the remarks of R S Hulme J above and the Chief Justice make plain that critical to the appropriate sentence will be the identification of an offender's moral culpability. This is a complex task in the present case. 42The sentencing judge found that the applicant drove in circumstances when she knew that she could lose consciousness. That risk was not a mere possibility. The respondent knew that she had had a vasovagal episode that morning and had almost fainted. On a previous occasion she had blacked out and lost control of her motor vehicle. Although the sentencing judge believed that it was appropriate to exclude consideration of the fact that the respondent had received morphine, smoked cannabis and been warned not to drive again that day I do not believe that it was open to him to do so. His Honour found that it was only the migraine and the possibility of an epileptic seizure that were the proximate cause of the accident. Even if that was the case, the respondent had been so unwell that she required medical treatment, including a morphine injection, and was told to go home to rest and not drive again that day. 43Although the doctor and nurse who treated the respondent were not aware of the possibility of epilepsy the advice that they gave was sound and, if followed, the tragedy would have been avoided. Of course, not only did the respondent ignore that advice but she increased the risk of an accident by driving the vehicle under the influence of cannabis and morphine. 44The conjunction of these circumstances would, but for one matter, suggest that it is appropriate to conclude that the culpability of the respondent is of a very high order. The reservation that I have is that the respondent did report that after she had smoked the marijuana (and no doubt with a contribution from the morphine) she felt better and able to continue her work for the day. Of course this was a false sense of well being induced by the combination of drugs and could never justify the complete abandonment of her obligations to others by resuming driving. However, no doubt motivated by a desire to fulfil her obligations to her employer, she allowed her apparent sense of wellbeing to prevail as against the obligations she owed to those who may be using or near the roads she travelled. 45I am satisfied that the finding that the respondent's loss of consciousness was the result of the respondent's undiagnosed epilepsy has caused his Honour to diminish the respondent's culpability for the offences, which has in turn led to the imposition of erroneously lenient sentences. Although not of the highest order of culpability, the respondent's determination to return to work in the face of the medical advice she had been given and her own knowledge of her potential to lose consciousness places her moral culpability at a high level. It is important to bear in mind that the respondent was charged with and pleaded guilty to manslaughter rather than to one of the statutory offences concerned with injury or death to others as the result of using a motor vehicle. The offence is accordingly, more serious than the offences considered in the guideline judgments in R v Jurisic (1998) 45 NSWLR 209 or R v Whyte [2002] NSWCCA 343; (2002) 55 NSWLR 252. 46The respondent submitted that the facts of the present case were unique. As with many other cases of manslaughter there is no case with similar facts of which I am aware. Gillett has some similarity in that in that case the offender falsely denied having epilepsy which would have precluded her from obtaining a licence. 47The respondent emphasised that the sentencing judge had found that the respondent was genuinely remorseful and had good prospects of rehabilitation. The medical evidence before his Honour indicated that it was likely that the respondent would serve her sentence in more onerous circumstances than other prisoners. In particular because the respondent suffers from epilepsy she will require ongoing monitoring and treatment. 48Although his Honour found that there were good prospects of rehabilitation, that finding has a diminished significance when the respondent's record and her circumstances at the time of those offences are considered. The respondent has a criminal history which involves some dishonesty offences. She was sentenced for 11 counts of false pretence in 1988 for which she received a bond. She was also convicted of one count of altering a prescription in relation to morphine in 2009. Again she received a bond. This was the bond that was current at the time of the present offences. 49There was also evidence that the respondent was serving a periodic detention order at the time of the offences, although these offences did not appear on her criminal history. The respondent's driving record included four occasions of exceeding the speed limit. 50With respect to the issue of remorse it must be remembered that even before the sentencing judge the respondent continued to deny that she was aware that she had previously blacked out when suffering from a migraine. That lie, as his Honour found it to be, is quite inconsistent with a person who is remorseful and accepts responsibility for her offending. 51The sentencing judge found that the respondent will need assistance to reintegrate into the community and accordingly found special circumstances. His Honour reflected this finding by providing an overall non-parole period which is 50% of the total sentence. 52The finding of special circumstances is not directly challenged by the Crown although, of course, it forms part of the challenge to the overall sentence which is submitted to be manifestly inadequate. This Court is always reluctant to intervene in relation to a finding of special circumstances. The issues were discussed by the Court in R v Cramp [2004] NSWCCA 264 by Spigelman CJ (Hidden and Buddin JJ agreeing) at [31]. However, in the present case I do not believe that a proportion of 50% is appropriate. 53I am mindful of the fact that this is a Crown appeal. The principles appropriate to Crown appeals have been considered in many cases. These cases make plain that such appeals should be rare. As was recently emphasised by the High Court in Green v The Queen [2011] HCA 49; (2011) 244 CLR 462 at 465 [1], a primary purpose of Crown appeals under s 5D is 'to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons'. This is a primary consideration relevant to the exercise of the court's discretion to intervene in Crown appeals, even where error is demonstrated: see also Griffiths v R (1977) 137 CLR 293 at 310 (Barwick CJ). However, as was indicated by Wood CJ at CL in R v Wall [2002] NSWCCA 42; (2002) 71 NSWLR 692 the court's power to intervene "extends to doing what is necessary to avoid manifest inadequacy or inconsistency in sentencing, that is, where the sentence is definitely outside the appropriate range for the case in hand": see also Everett v R (1994) 181 CLR 295 at 299; Dinsdale v R [2000] HCA 54; (2000) 202 CLR 321 at [61] and [62] and Wong v R [2001] HCA 64; (2001) 207 CLR 584 at [58] and [109]. 54In my opinion, the sentences handed down by Toner DCJ are so disproportionate to the offences committed by the respondent as to warrant the intervention of this Court. 55In my opinion the sentences imposed in the District Court should be quashed and the respondent resentenced. In resentencing the respondent, I have taken into account the evidence concerning the respondent's health and treatment in custody, including the affidavits furnished to the Court following the hearing of the appeal. Having regard to all the matters to which I have referred, the appropriate sentence in relation to count 1 is a total sentence of 7 years imprisonment with a non-parole period of 4 years. A similar sentence is appropriate in relation to count 2. I would provide an identifiable period of custody for count 1 of 2 years. 56Accordingly I would impose an aggregate sentence of 9 years imprisonment with a non-parole period of 6 years.

Orders: 1.Uphold the appeal and quash the sentences imposed in the District Court. 2.In relation to count 1, sentence the respondent to a non-parole period of 4 years commencing on 17 November 2011 and concluding on 16 November 2015 with an additional term of 3 years expiring on 16 November 2018. 3.In relation to count 2, sentence the respondent to a non-parole period of 4 years commencing on 17 November 2013 and concluding on 16 November 2017 with an additional term of 3 years expiring on 16 November 2020. 57JOHNSON J: I agree with McClellan CJ at CL. 58GARLING J: I agree with McClellan CJ at CL.

********** 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: 18 October 2012