Branscheid v The King

[2023] SASCA 103

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Criminal)

BRANSCHEID v THE KING

[2023] SASCA 103

Judgment of the Court of Appeal  

(The Honourable President Livesey, the Honourable Justice David and the Honourable Justice Nicholson)

27 September 2023

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE

CRIMINAL LAW - SENTENCE - RELEVANT FACTORS

CRIMINAL LAW - SENTENCE - PURPOSE OF SENTENCE

CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - SENTENCE - CULPABLE OR DANGEROUS DRIVING CAUSING DEATH  - SOUTH AUSTRALIA

This is an appeal against sentence.

The appellant pleaded guilty to one count of aggravated causing death by dangerous driving, contrary to s 19A(1) of the Criminal Law Consolidation Act 1935 (SA). On 10 March 2020, the appellant while driving on South Para Road at Kersbrook, moved onto the opposite side of a two-laned road and collided head-on with a vehicle driven by the deceased. At the time of the collision, the appellant had methylamphetamine, morphine and diazepam present in his blood.

The sentencing Judge commenced with a starting point of nine years and six months imprisonment, reduced on account of the appellant’s guilty plea to nine years and nine days imprisonment. A non‑parole period of seven years, two months and 19 days was fixed, that being about four-fifths of the head sentence. The sentencing Judge ordered that the appellant be disqualified from holding or obtaining a driver's licence for 20 years to commence on the appellant’s release from prison.

The sole ground of appeal is that the sentence was manifestly excessive.

Held, per the Court, granting permission to appeal but dismissing the appeal:

1.      The sentence imposed was not manifestly excessive.

Criminal Law Consolidation Act 1935 (SA) s 19A; Road Traffic Act 1961 (SA) s 169B; Sentencing Act 2017 (SA) s 3, 47(5)(d), 53, referred to.

Bubner v The Queen [2022] SASCA 27, distinguished.
Hackett v The Queen [2021] SASCA 32; Hili v The Queen (2010) 242 CLR 520; R v Akol (2020) 284 A Crim R 246; R v Ceruto [2014] SASCFC 5; R v Dundovic (2008) 101 SASR 32; R v Edwards [2016] SASCFC 145, discussed.

Abbott v The Queen [2021] SASCA 131; Hilfy v The Queen [2020] SASCFC 72; House v The King (1936) 55 CLR 499; Johnson v The Queen (2004) 78 ALJR 616; Markarian v The Queen (2005) 228 CLR 357; Purdell v The Queen (SACCA, 11 December 1990, Judgment No. 2683, unreported) ; R v Clancy [2013] SASCFC 63; R v Hietanen (1989) 51 SASR 510; R v Nozuhur [2013] SASCFC 81; R v Watkins (2013) 118 SASR 342; R v Whyte [2002] NSWCCA 343, considered.

BRANSCHEID v THE KING
[2023] SASCA 103

Court of Appeal – Criminal: Livesey P, David JA and Nicholson AJA

1. THE COURT:  The appellant pleaded guilty to one count of aggravated causing death by dangerous driving, contrary to…