Andrew John Walden v R No. SCCRM 93/403 Judgment No. 4342 Number of Pages 9 Criminal Law and Procedure

[1993] SASC 4342

COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA COURT OF CRIMINAL APPEAL KING CJ (1), MILLHOUSE(2) and OLSSON(3) JJ

CWDS
Criminal law and procedure - appeal against sentence - causing bodily injury by dangerous driving - sentence of 3 years with 2 year non parole period imposed - driving a motor vehicle whilst prescribed concentration of alcohol present in blood - fine of $1,000 imposed and disqualification of driver's licence for 3 years - sentence failed to take into account mitigating factors - sentence manifestly excessive - sentence of 15 months with 9 month non parole period substituted for first count. Road Traffic Acts 47b.

HRNG ADELAIDE, 7 December 1993 #DATE 22:12:1993
Counsel for appellant:     Mr C J Kourakis
Solicitors for appellant:    Germein-Reed
Counsel for respondent:     Ms W J Abraham
Solicitors for respondent: Director of Public Prosecutions

ORDER
Appeal allowed.

JUDGE1 KING CJ This is an appeal against a sentence imposed in the District Court for the crime of causing bodily injury by dangerous driving. The appellant came before the District Court judge for sentence for two offences arising out of the same driving incident. For the offence of causing bodily injury by dangerous driving he was sentenced to imprisonment for 3 years with a non-parole period of 2 years. For the offence of driving with the prescribed concentration of alcohol in the blood he was sentenced to a fine of $1,000. He was disqualified from holding or obtaining a driving licence for a term of 3 years and it was ordered that at the end of the period of disqualification he be not granted a driver's licence until he had passed a driving test as prescribed by s.79A of the Motor Vehicles Act. This appeal relates solely to the sentence imposed for causing bodily injury by dangerous driving. There is no appeal against the sentence for the drink-driving offence. 2. The appellant was just 18 years of age at the time of the offence. He had acquired a former police vehicle with power-steering some weeks before. The power-steering was still somewhat strange to him. The appellant was at a party at Port Broughton. He became intoxicated. Some members of the party decided to go to the Port Broughton Hotel. When the appellant made as if to drive his car, two of his companions attempted to prevent him from doing so. One of them took the keys of the car. The appellant threatened to punch him and he was then given the keys. Two other companions voluntarily entered the car and went off with him. 3. The appellant did not stop at the Port Broughton Hotel but appears to have gone for a drive. As he came to a bend in the road he was confronted with a vehicle coming in the opposite direction. There was no marked centre line but the road was a sealed road. The appellant pulled to the left and his nearside wheels got into the dirt verge. He lost control of the car which veered across the road. He overcorrected, perhaps partially in consequence of the power-steering, and the car overturned. One of the passengers suffered a head injury. 4. The appellant's blood alcohol level at the relevant time was about 0.17 per cent. The speed of the car when the emergency developed was about 120 kph, the speed limit being 100 kph. 5. The circumstances of the accident itself were unremarkable. It is an all too common type of occurrence on the roads. A serious aspect of the matter is the appellant's blood alcohol concentration and the warnings which he had before embarking upon the driving. The victim's injury is significant, but the offence of which the appellant has been convicted is causing bodily injury, not grievous bodily injury for which the maximum sentence is higher. 6. If the appellant's driving had not resulted in bodily injury, it would have been punished, as indeed the drink-driving offence was, by fine and disqualification. What converts a summary offence into an indictable crime punishable by imprisonment are the consequences in the form of bodily injury. The consequences are therefore important in assessing the gravity of the crime. I think that in this respect a somewhat less serious view can be taken of an offence which results in injury only to a person who has voluntarily driven with the offender knowing that he is under the influence of liquor than would be the case if the offence had caused injury to somebody who was quite uninvolved in the offender's driving. The unfortunate victim in the present case must have been aware that the appellant's driving capacity was impaired by liquor. The victim was not wearing his seat belt and that no doubt contributed to his injury. 7. The appellant has no prior convictions, except one for driving without due care in June 1991 for which he was fined $100. 8. The appellant is shown by the evidence to be an industrious and conscientious young man. He was in regular employment in the building industry. His contrition is obvious from the evidence. He showed remorse and self-reproach at the scene of the accident. He was frank with the police. He pleaded guilty at the earliest opportunity in the Magistrates Court. 9. Prison is a new, and no doubt terrible, experience for this young man. It must cause him a great deal more suffering than others who have had the experience before. This aspect is not to be ignored when assessing the severity of the sentence. 10. The maximum sentence for causing bodily injury by dangerous driving is 4 years. Despite the blood alcohol level and the warnings which the appellant had received, I am clearly of opinion that the other features of this case render the sentence imposed an unduly high proportion of the maximum sentence. If it were not for the plea of guilty, I would have considered a sentence of 2 years appropriate. By reason of the plea of guilty I think that that should be reduced to 18 months. 11. The appellant is obviously an excellent candidate for parole. It is highly undesirable that he should remain in prison for longer than is absolutely necessary to serve the purpose of general deterrence. I think that an appropriate non-parole period would be 9 months. 12. Counsel for the appellant submitted that the sentence should be suspended. Despite the appellant's youth and good antecedents, I do not think that that course is appropriate in view of the blood alcohol level and the appellant's failure to heed the warnings as to his condition. 13. In my opinion the appeal should be allowed and the sentence should be varied by reducing the same to imprisonment for 1 year and 6 months with a non-parole period of 9 months commencing on 11th October 1993. 14. The fine with respect to the drink-driving offence and the orders with respect to the appellant's driving licence are unaffected by this order.

JUDGE2 MILLHOUSE J The Chief Justice and my brother Olsson have shewn me their draft Reasons for allowing this appeal. Each has set out the facts sufficiently and accurately: there is no need for me to repeat them. 2. I regret that I am quite unable to agree with their conclusions. 3. The appellant admitted causing bodily harm by dangerous driving, and of driving a motor vehicle while there was an excess of alcohol in his blood. He has appealed only on the penalty imposed on him for the dangerous driving. 4. In my view Judge Russell has taken into account all relevant factors and has properly balanced those encouraging leniency with those against and has come to a conclusion which should not be disturbed - a term of imprisonment for three years with a two year non-parole period. 5. Mr Kourakis submitted that any sentence ought to have been suspended but for the reasons given by my brothers that is out of the question. The only point at issue between us is whether the term of imprisonment and correspondingly the non-parole period should be reduced. 6. Section 19a(3) of the Criminal Law Consolidation Act under which the appellant was charged is:-
    2 " Death and injury arising from reckless driving, etc
    19a (1) ........
    (3) A person who
    (a) drives .. a vehicle ... in a culpably negligent
    manner, recklessly, or at a speed or in a manner dangerous
    to the public; and
    (b) by that culpable negligence, recklessness or other
    conduct, causes bodily harm to another, is guilty of an
    indictable offence." 7. Penalties are set out in s19a(4):-
    (4) The penalty for an offence against subsection (3) is
    as follows:
    (a) where a motor vehicle was used in commission of the
    offence and grievous bodily harm was caused to a person -
    (i) for a first offence - imprisonment for a term not
    exceeding 10 years and disqualification from holding or
    obtaining a driver's licence for 5 years or such longer
    period as the court orders;........
    (b) where a motor vehicle was used in commission of the
    offence but grievous bodily harm was not caused to any
    person-
    (i) for a first offence - imprisonment for a term not
    exceeding 4 years and disqualification from holding or
    obtaining a driver's licence for one year or such longer
    period as the court orders;........" 8. The learned judge spoke at some length in his sentencing remarks of the victim's injuries. He took what he said from a report by Dr John Bastian, Rehabilitation Registrar at the Julia Farr Centre. They were very nasty indeed. 9. The seriousness of the injuries comes out perhaps more starkly, because more shortly, in the report of Mr J A Trott, the plastic surgeon. I quote only his summary:-
    " This man suffered a severe head injury in association
    with a fracture of his jaw. The latter was complicated by
    infection, possibly due to the delay in treatment necessitated
    by the severity of his head injury. The consequence of this has
    been jaw stiffness and he will require ongoing work to achieve a
    more normal mouth opening. His condition is therefore not
    stable and will be unlikely to be stable for at least twelve
    months from the date of this report. ..If conservative measures
    do not succeed in increasing his mouth opening then he may well
    require to undergo further surgical procedures." 10. Mr Trott was writing in May of this year, all but five months after the injuries were sustained: even then he thought it would be another 12 months before the victim's condition will be stable. 11. The fact is the victim spent most of the first three months after the accident either in the Royal Adelaide Hospital or in the Julia Farr Centre and must have been most uncomfortable. I think the appellant was lucky indeed that only bodily harm and not grievous bodily harm was alleged against him. If the victim had received these injuries in, say, a fight, his assailant would, I should think, have been charged with grievous bodily harm. With respect, it seems to me that my learned brothers have not given sufficient weight to the seriousness of the victim's injuries. 12. I entirely agree with the learned sentencing judge when he said, having referred to the penalties in s19a(4), "I infer from that that Parliament intended that the more serious the injury the greater the penalty." 13. These injuries were at the top end of the scale of seriousness for bodily harm and the learned judge was quite right to reflect that in imposing a sentence of three years imprisonment when the maximum is four. 14. I accept that the victim voluntarily was a passenger in the vehicle, must have realised the appellant was affected by alcohol and was not wearing a seat belt. I suggest that those factors in favour of leniency are heavily outweighed by the probable alcohol content of the appellant's blood at the time of the accident - .18 per cent or .19 per cent - and by his obstinate persistence in driving in that affected condition - even threatening to punch the man who had taken his keys. 15. Nor do I think there is anything in the point that this car had power steering and the appellant had been driving it only for three weeks. Three weeks should have been more than long enough for him to become familiar with the vehicle. He was a youth who in August 1991, 18 months beforehand, had this written of him by a police officer:- " He has shown a keen interest in mechanical devices especially in motor vehicles, and would have above average knowledge of motor vehicles for a youth of his age." 16. If the appellant were not familiar by the time of the accident with the power steering he should have been the more careful in his driving. 17. Finally in my view the crimes created by s19a are crimes quite distinct from other kinds of crimes such as those of violence, dishonesty or sex. Such considerations as, for example, the background of the offender may be of less relevance than they may be for those who have committed other kinds of crimes. The sad fact is that people from all walks of life may commit crimes created by s19a, however upright good citizens they may be in other ways. Yet the Parliament has seen fit to provide the penalties it has. 18. The appeal should be dismissed.

JUDGE3 OLSSON J This is an appeal by leave against sentences imposed upon the appellant by a District Court Judge consequent upon him pleading guilty to one count of driving a motor vehicle in a manner which was dangerous to the public, thereby causing bodily harm to another person, and an allied count of driving a motor vehicle on a road whilst there was present in his blood the prescribed concentration of alcohol, contrary to section 47b of the RoadTraffic Act. 2. The learned sentencing judge sentenced the appellant to a term of imprisonment for a period of three years in relation to the first count and fixed a non parole period of two years in relation to it. On the second count he fined the appellant $1,000 and ordered that he be disqualified from holding or obtaining a driving licence for a period of three years. 3. The facts giving rise to the charges against the appellant were not in dispute. 4. The appellant is a young man, 19 years of age. Shortly prior to Christmas 1992 he purchased a 1981 V8 Holden Commodore sedan, a vehicle far more powerful than that which he had been accustomed to drive prior to that time. 5. On the night of 26 December 1992 he attended a party being held at a friend's flat at Port Broughton. He arrived at about 8.00 pm and commenced drinking bourbon and coke. As the evening wore on he clearly consumed a good deal of liquor to the point that, by about 9.30 to 10.00 pm, he was visibly, appreciably intoxicated. 6. At about that time the appellant left the party in his vehicle. Such was the appellant's obvious condition that two other persons at the party attempted to dissuade, and even physically prevent, him from driving, but he became truculent and they desisted. 7. The appellant drove away from the premises accelerating rapidly and spinning the rear wheels of his vehicle. Two persons who had also been at the party were passengers. He eventually drove north on Fishermans Bay Road, travelling at about 120 kph in 100 kph zone. As he was rounding a bend on the unmarked road he was dazzled by the lights of an oncoming vehicle. He veered to the left to avoid it, but the nearside wheels of his car left the bitumen surface and travelled onto the gravel verge. The appellant over-corrected and the car became out of control, slewed across the road and rolled over and through the fence into an adjacent paddock. Neither the appellant nor the passenger in the rear of the vehicle was badly injured. However, the passenger in the front nearside seat, Steven Richards, suffered serious bodily injury, mainly, it would seem, because he was not wearing a seatbelt at the time. 8. The major injuries sustained by Richards were closed head injuries. There was serious damage to the jaw structure and it was found that he had a depressed fracture of the skull. 9. The injured passenger was initially admitted to intensive care at the Royal Adelaide Hospital, following which, over a lengthy period of time, he had a series of operations, followed by other treatment aimed at his rehabilitation. He was off work for a total of about 30 weeks and it is not entirely clear, on the material before this court, as to whether he has been left with any and if so what residual incapacities, although he is still undergoing medical treatment. 10. The evidence indicates that Richards was, himself, drinking rum and coke during the evening, although it does not appear what his state was at the time when he left the party with the appellant. So far as the appellant was concerned, a breath analysis carried out at 11.49 pm indicated a blood alcohol concentration of 0.17 per cent. Clearly, on a count back basis, it would have been higher than that at the time of the accident. 11. The learned sentencing judge was informed that the appellant had no antecedent record, save for an offence of driving without due care - for which, on 5 June 1991, he was fined $100. It also appeared that, in December of the same year, he was detected contravening a probationary licence condition, in that one of his P plates had fallen off the vehicle being driven by him. 12. The material placed before the learned sentencing judge indicated that the appellant had been well regarded prior to the accident. He had a good work record. Various general references were tendered to the learned sentencing judge, including one from the officer in charge of the Police Station at Port Broughton, who testified to his general good character. 13. There also seemed little doubt that the appellant was not only contrite in relation to his offending, but also genuinely distressed at the injury which had been occasioned to his passenger. Following the accident he readily co-operated with the police and entered timely pleas to the charges brought against him. 14. Not unexpectedly the learned sentencing judge took a serious view of the principal offence, particularly having regard to the state of inebriation of the appellant at the relevant time, his insistence on driving when his friends endeavoured to persuade him against that activity, the speed at which he was driving at the time of the accident and the manner in which he had shown off as he left the party. He also bore in mind the fact that, in the course of the journey and immediately prior to the accident, both passengers in the vehicle had urged the appellant to "take it easy" in relation to the speed at which he was driving. 15. As against that it was necessary to bring into the balance the fact that, immediately prior to the accident, there was nothing overtly dangerous in the general manner of driving or in the apparent control of the vehicle by the appellant. The accident was essentially the product of driving at speed and pulling over on an unmarked road to clear an oncoming vehicle; and then overcorrecting when the nearside wheels entered the gravel verge. 16. Against the foregoing background the appellant complains that the totality of the sentences imposed upon him were manifestly excessive. 17. There can be no doubt that the evolving of a sentencing strategy for offences of the type now under consideration is a difficult task. 18. On the one hand there was a need adequately to recognise the inherent seriousness of a primary charge, such as that now under consideration, and the disastrous outcome of the driving, so far as the injured passenger was concerned. There was also the need to give proper recognition to the factors of personal and general deterrence - both as to the speed of driving and the state of intoxication of the appellant at the time. 19. As against that, there are several features which must be borne steadily in mind in the particular circumstance of this case. 20. In the first place it is to be recalled that the specific charge against the appellant was that of causing bodily harm by dangerous driving. This is a significantly lesser offence than the offences of causing either grievous bodily harm or causing death by dangerous driving. The charge here in question attracts a maximum penalty of four years imprisonment. 21. Secondly, it must be appreciated that, in the scale of criminal activity, the bare act of dangerous driving is one which normally attracts a relatively modest penalty by way of contrast with many other indictable offences. What is obviously recognised in the legislation as rendering the intrinsic conduct involved more serious is the consequence which results from it - in this case, the occasioning of bodily harm to Richards. 22. In the matter now before the court it seems to me that some distinction needs to be drawn between what occurred on the night in question and a more heinous potential circumstance of injury being occasioned to some innocent third party not associated with the appellant and his vehicle. 23. It is not to be forgotten that, in the instant case, the bodily harm was caused to a person who had, himself, been drinking; and who must be taken to have voluntarily entered the appellant's vehicle well knowing the intoxicated condition of the driver. Moreover it is a fair inference on the evidence that, had the passenger worn a seatbelt, as he was legally bound to have done, he may well not have been occasioned injuries remotely as serious as those actually sustained. 24. In their totality these were factors which required the seriousness of the offending to be categorised towards the lower, rather than the higher, end of the scale. 25. Added factors which needed to be taken into account were the young age of the appellant, his prior good background and record, and the separate punishment which was necessarily attracted by the associated punishment for the section 47b offence. For a young lad living in a country town (and no doubt requiring a vehicle normally to travel to work), licence disqualification of three years coupled with a fine of $1,000, was a not insubstantial punishment in its own right. 26. Not only was there a need to ensure that there was no undue double counting involving a total sentencing package, particularly by virtue of the element of intoxication related to both charges, but there was also a requirement to recognise the timely pleas of guilty and the obvious contrition of the appellant by granting him a substantial discount upon what would otherwise be a full and appropriate sentence for the offending. 27. Having regard to all of these factors I am not persuaded that a head sentence of three years in respect of the principal offence was warranted. 28. It seems to me that such a sentence, which is well towards the top end of the permissible scale, fails to recognise the proper, objective, categorisation of the offending as I have earlier discussed it. It is a head sentence which would be more appropriate, in relative terms, to the more serious offence of causing grievous bodily harm by dangerous driving. Moreover, it does not, on the face of it, appear to make due allowance for mitigating factors such as the young age of the appellant and his general good character and work record, or allow the customary discount for timely pleas of contrition. 29. This being so I am of opinion that the exercise of the sentencing discretion necessarily miscarried. As the non parole period was clearly a reflection of the head sentence, that also cannot be regarded as satisfactory. 30. In such circumstances it falls to this court to review the matter afresh and to exercise its own sentencing discretion. 31. In my view, particularly given the severity of the penalty and disqualification in relation to the section 47b offence, a proper head sentence that adequately reflects the countervailing factors to be taken into consideration in respect of the principal charge and gives the appropriate sentence discount for timely plea would be a term of imprisonment for a period of eighteen months with a non parole period of nine months, both to run from 11 October 1993. In practical terms he will qualify for release on parole after serving just under two-thirds of his non parole period. 32. I would, accordingly, allow the appeal, set aside the sentence imposed in respect of the primary offence and substitute for it a sentence as indicated above.