A man who killed his 7-year-old nephew when he got behind the wheel with four kids in the car after using the drug ice received a "manifestly inadequate" sentence that should be increased, a court has heard.
Robert Gawdat Shashati, 39, was sentenced in April to four years and six months in prison, with a non-parole period of two years and three months, for the 2015 crash that killed his nephew Marcus Shashati.
Shashati had driven off the road and was travelling at 82km/h when he crashed into an embankment at Williamtown, north of Sydney on January 21, 2015.
Marcus was in the back seat of the car, between his two brothers, wearing a lap seatbelt. When the car crashed, Marcus suffered a severe whiplash injury that damaged his spine and brain and led to his death.
A blood test found Shashati had 0.32mg/L of methylamphetamine in his system, as well as small amounts of amphetamine and codeine.
At trial, he denied that he had smoked ice just before getting behind the wheel and said he had done the drug the previous Friday, but before his sentencing said he remembered that he had in fact taken the drug on the day of the crash.
In April, Marcus' family labelled the sentence handed down by District Court Judge Peter Maiden an "absolute joke".
"It could never be enough for our loss if it were to be measured in any way," said Marcus' mother Claudia Boyagi Shashati outside court. "Marcus received a death penalty, we received life, and the convicted gets bed and breakfast."
The Crown is now appealing the sentence, saying Judge Maiden made a mistake when he didn't take into account Shashati's dangerous driving leading up to the crash, or his poor driving record, and that he underestimated the seriousness of the crime.
Maiden only took into account for sentencing "a few seconds of conduct where the car goes off the road onto the grass and then a matter of seconds later goes into the drain," said Crown barrister David Kell SC.
But in the time before the crash, witnesses reported seeing Shashati's dangerous and erratic driving.
One woman was driving when Shashati's car veered sharply in front of her, causing her to have to brake, and she also saw him driving at speed and off the road to overtake cars on the wrong side several times, Kell said.
Another woman had given evidence that when she heard a car honking, she looked in her rearview mirror and saw Shashati looking agitated, throwing his arms around and repeatedly saying "fuck".
This witness said she had seen Shashati drive off the road, brake to avoid hitting a concrete pillar, and then lose control of his car and "sort of fishtailed", causing her to move slightly to the right to avoid a collision, the court heard.
The young boys in the car had also given evidence, one saying Shashati was angry and "beeping his horn at whoever got in his way," Kell said.
Gabrielle Bashir SC, acting for Shashati, urged the Court of Appeal not to offer general guidance on whether someone's earlier driving should be taken into account on sentencing, saying "that is a matter that is going to vary from case to case".
Kell also argued that Maiden hadn't properly taken into account Shashati's driving record, which he said comprised of 39 traffic offences and could be described as "appalling".
“At the time of the accident causing death, the respondent was subject to a two-year good behaviour bond for a previous offence of driving while disqualified," Kell said. "He was also a person with a significant traffic record."
Kell said Maiden had taken the "wrong approach" to general deterrence (the notion that sentences deter other people from committing crimes) in Shashati's case by noting that these types of crimes were usually committed by younger men who had been drinking.
If the Court of Appeal did decide to re-sentence Shashati, it should take into account the fact he hasn't relapsed into ice addiction for two years and his "fulsome acceptance of responsibility" for the crime, Bashir said.
The court also heard that Shashati was distressed and anxious at the prospect of the appeal and serving more time in prison.
"There is evidence of real anxiety and stress," Bashir said. "He wasn’t allowed to see his own children because of this accident. He maintains his heartfelt and genuine remorse."
In the sentencing in April, Maiden found Shashati had good prospects of rehabilitation, that he had shown remorse for his crime, and took into account the fact he had pleaded guilty to the lesser charge of dangerous driving occasioning death.
But the jury found he had been substantially impaired by ice at the time of the incident and was guilty of the aggravated charge, which has a maximum penalty of 14 years.
The Court of Appeal has reserved its decision.