Bubner v The Queen
[2022] SASCA 27
•31 March 2022
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
BUBNER v THE QUEEN
[2022] SASCA 27
Judgment of the Court of Appeal
(The Honourable President Livesey, the Honourable Justice Doyle and the Honourable Justice David)
31 March 2022
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - CONCURRENT, CUMULATIVE AND ADDITIONAL SENTENCES - CONCURRENT SENTENCES
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - SENTENCE - CULPABLE OR DANGEROUS DRIVING CAUSING DEATH - SOUTH AUSTRALIA
The applicant pleaded guilty to two counts of aggravated causing death by dangerous driving, contrary to s 19A(1) of the Criminal Law Consolidation Act 1935 (SA). On 2 May 2020, the applicant, while driving, moved onto the wrong side of the road and collided head-on with a vehicle occupied by the two deceased.
The sentencing Judge commenced with a starting point of eight years imprisonment for each count. His Honour considered that there should be partial concurrency as the two deaths were caused by one act of driving and commenced with a notional starting point of 12 years imprisonment. This was reduced by 25 per cent for the applicant’s guilty pleas, resulting in a head sentence of nine years imprisonment. A non-parole period of seven years, two months, and 12 days was fixed. The sentencing Judge also imposed a 10 year licence disqualification to commence on the applicant’s release from prison.
The single ground of appeal is that the sentence was manifestly excessive.
Held, per the Court, granting permission to appeal and allowing the appeal:
1. The sentence imposed was manifestly excessive.
2. The sentence of imprisonment imposed in the District Court is set aside.
3.On resentence, a notional starting point of six years imprisonment is adopted for each offence. Three years of the sentence for Count 2 is to be served concurrently with the sentence for Count 1. This results in a notional head sentence of nine years imprisonment. That sentence is reduced by 25 per cent for the applicant's guilty pleas, resulting in a head sentence of six years and nine months imprisonment. A non-parole period of five years and five months is fixed. The sentence is to commence on 7 October 2021.
4. The applicant is prohibited from obtaining or holding a driver's licence for 10 years, commencing on the applicant's release date from prison.
Criminal Law Consolidation Act 1935 (SA) ss 5AA, 19A; Road Traffic Act 1961 (SA) s 47BA; Sentencing Act 2017 (SA) ss 26, 47, 54, referred to.
Hackett v The Queen [2021] SASCA 32; Hilfy v The Queen [2020] SASCFC 72; Hili v The Queen (2010) 242 CLR 520; Markarian v The Queen (2005) 228 CLR 357; R v Akol (2020) 284 A Crim R 246; R v Ceruto [2014] SASCFC 5; R v Chalmers (2012) 115 SASR 150; R v Clancy [2013] SASCFC 63; R v Dundovic (2008) 101 SASR 32; R v Edwards [2016] SASCFC 145; R v Hietanen (1989) 51 SASR 510; R v Nozuhur [2013] SASCFC 81; R v Watkins (2013) 118 SASR 342; R v Wooldridge (2015) 123 SASR 422; The Queen v Johnston (1985) 38 SASR 582, considered.
BUBNER v THE QUEEN
[2022] SASCA 27Court of Appeal – Criminal: Livesey P, Doyle and David JJA
THE COURT:
The applicant pleaded guilty to two counts of aggravated causing death by dangerous driving, contrary to s 19A(1) of the Criminal Law Consolidation Act 1935 (SA).[1] On 2 May 2020, the applicant, while driving on Victor Harbor Road, moved onto the wrong side of the road and collided head-on with a vehicle occupied by the two deceased, who were brothers.
[1]The sentencing Judge commenced with a starting point of eight years imprisonment for each count. His Honour considered that there should be partial concurrency as the two deaths were caused by one act of driving and commenced with a notional starting point of 12 years imprisonment. This was reduced by 25 per cent for the applicant’s guilty pleas, resulting in a head sentence of nine years imprisonment. A non-parole period of seven years, two months, and 12 days was fixed, that being the mandatory four-fifths of the head sentence.[2]
[2] Sentencing Act 2017 (SA) s 54(1)(b).
The sentencing Judge also imposed a 10 year licence disqualification to commence on the applicant’s release from prison.
The single ground of appeal is that the sentence was manifestly excessive.
Circumstances of the offending
On 2 May 2020 at about 4pm, the applicant was driving a four-wheel drive utility in a northerly direction on Victor Harbor Road. She was returning to Adelaide from her employment in Victor Harbor. The road consisted of a
two-way, single carriageway. The lanes were separated by solid double white painted lines. The speed limit on this stretch of road was 100 km/h. The applicant was travelling at about 85 km/h.The applicant had driven approximately 18 km from Victor Harbor when she crossed the centre lines onto the wrong side of the road instead of negotiating a left-hand corner. She collided head-on with the vehicle travelling in the opposite direction. The other vehicle was occupied by the two deceased men. At the point of impact, the applicant’s vehicle was wholly on the wrong side of the road. There was no evidence of the applicant having braked, swerved or otherwise having made any attempt to avoid a collision. There were no witnesses to the collision and the applicant has no memory of it.
The applicant appeared to have drifted or veered onto the wrong side of the road shortly before the collision. It is unknown for how long she was travelling on the wrong side of the road, except to say that she was wholly on the wrong side of the road at the point of impact with the other vehicle.
At the time of the collision, the applicant had methylamphetamine and amphetamine (and small amounts of prescription medication) present in her blood. Dr Jason White, a Professor of Pharmacology, reported on the concentration of methylamphetamine found in the applicant’s blood sample. He said:[3]
It is not possible to give a precise estimate of Ms BUBNER’S methylamphetamine concentration at the time of the accident in the absence of information as to the time of her last use of the drug and the method of use. However, if Ms BUBNER had used methylamphetamine intravenously, or had smoked or taken it orally more than three hours prior to the accident, then the concentration of methylamphetamine would have been falling between the time of the accident and the time of blood sample collection. Assuming that the concentration of the drug was falling over that time, and using an average half-life of methylamphetamine of 10 hours, the likely concentration of the drug at the time of the accident is 0.54 mg/L.
[3] Affidavit of Dr Jason White affirmed 15 December 2020 at [6], [13].
Dr White also set out the potential effects of the ingestion of methylamphetamine on the applicant’s driving based on the concentration of methylamphetamine in her blood. He said:[4]
Potentially, Ms BUBNER could have been experiencing any of the general effects of methylamphetamine described above, including risky, impulsive or reckless behaviour, erratic behaviour, agitation and confused thinking. She would also have been at risk of experiencing psychotic symptoms.
Ms BUBNER’S driving could have been affected by methylamphetamine in a number of ways, including high risk driving and failure to concentrate on the road and on driving, with the potential to drift off the direction of travel. The likelihood of Ms BUBNER being involved in an accident would have been markedly elevated at this methylamphetamine concentration.
If Ms BUBNER had recognised the likelihood of a collision, methylamphetamine would have impaired her ability to respond appropriately so as to avoid the collision. The relevant effects of the drug include impairment of thinking and decision making, slower reaction time and impaired coordination leading to a diminished ability to control the vehicle. In this situation she would also have been more likely to make an error in operation of the vehicle due to the effects of methylamphetamine.
[4] Affidavit of Dr Jason White affirmed 15 December 2020 at [39]-[41].
There is no suggestion that prior to the collision the applicant was driving in an aggressive or risky manner arising out of over confidence from having ingested methylamphetamine. For example, there was no evidence of her speeding or travelling around bends in an unsafe manner, nor of any other dangerous driving. Further, there was also no suggestion that the applicant moved to the wrong side of the road as a risk-taking side effect of the methylamphetamine. Rather, the applicant accepted before the sentencing Judge, and in this Court, that her driving onto the wrong side of the road was caused by either fatigue or distraction at least in part because of her consumption of methylamphetamine.
Subsequent police examinations revealed that there was nothing about either vehicle that contributed to the crash.
As indicated earlier, the collision resulted in the death of the two occupants of the other vehicle. The applicant sustained a fracture of the left foot and two broken bones in the right foot. She was flown from the collision scene to hospital.
Personal circumstances
At the time of sentencing, the applicant was aged 51. She was born in Broken Hill. Her parents separated when she was aged nine. She was raised by her mother, but maintained a good, albeit distant, relationship with her father. She has three biological siblings. She described her childhood as ‘fairly “normal”’,[5] except for an incident of indecent touching by her mother’s partner when she was aged 10. She reported that incident to her mother, who did not believe her account. This led to some tension in their relationship, although the applicant said she loves her mother and she tried to keep the peace to maintain a relationship with her. The applicant said she tried to avoid her mother’s partner. Her mother’s partner did not abuse her again.
[5] Psychological Report of Susan Heinrich dated 27 September 2021 at 4.
The applicant completed her secondary education in year 10. After leaving school, she undertook courses in retail and management and obtained work as a sales assistant in various retail stores. The applicant has been regularly employed during her adult life.
The applicant has had two serious relationships: the first with the father of her eldest son from whom she separated after about four years; and the second with her ex-husband whom she married in 2000, and from whom she separated in 2018. Together, they have a son. Both her sons are now young adults. The applicant reported that her relationship with her first partner, the father of her eldest son, was characterised by domestic violence. After separating from him, she raised her son alone until she met her now ex-husband. The applicant continues to remain close with her ex-husband.
The applicant has suffered from periods of poor mental health. In 2003, she was working as the manager of a retail store when she was the victim of an armed robbery. Following this incident, she was unable to work and received WorkCover payments for about four years. She developed post-traumatic stress disorder (‘PTSD’) for which she received cognitive treatment. The applicant was then able to resume working in her own eBay business. Thereafter, the applicant started working as a cleaner in newly built residential premises.
In 2016, the applicant’s younger brother committed suicide; she stayed with his body until the ambulance arrived. His death proved traumatic for her. After her brother’s suicide, her symptoms of PTSD returned, and she suffered from flashbacks, depression and anxiety.
After separating from her ex-husband in 2018 the applicant began to recreationally use methylamphetamine. She reported to a psychologist, Ms Susan Heinrich, that she had used methylamphetamine on four or five occasions during the period leading up to the collision as she was stressed and wanted to ‘feel normal’.[6]
[6] Psychological Report of Susan Heinrich dated 27 September 2021 at 7.
Over the years, the applicant’s mental health was deteriorating. Shortly before the offending in 2020, the applicant obtained a mental health plan. She was prescribed antidepressant and antipsychotic medication. She sought a referral to a psychologist and was placed on a waitlist for psychological treatment. As noted earlier, the applicant was recreationally using methylamphetamine.
After the offending, in June 2020 and September 2021, the applicant was admitted to mental health facilities at Noarlunga Hospital.
Ms Heinrich, in a report dated 27 September 2021, said that the applicant meets the criteria for PTSD and presents with high anxiety and depression, which is probably symptomatic of her PTSD. She said the applicant’s PTSD was initially triggered by the robbery in 2003, and in 2016, the death of her brother brought on a relapse. The applicant also reported experiencing symptoms of PTSD related to the present offending.
Ms Heinrich expressed the opinion that the applicant’s personal history contributed significantly to her use of methylamphetamine, which ultimately contributed to the offending. She said that whilst the applicant was a user of methylamphetamine, she did not meet the criteria for a substance use disorder.
Ms Heinrich believed that the prison system could manage the applicant’s mental health.
As to the applicant’s criminal history, it is limited and relates to traffic offences. She was convicted of four counts of the offence of exceed speed (on three separate occasions) and one count of failing to wear a seatbelt in 1996. She was also convicted of the offence of driving an unregistered motor vehicle in 1997.
Sentencing remarks
The sentencing Judge summarised the applicant’s offending and her personal circumstances. His Honour then turned to outline the seriousness of the offending in the following terms:
Your driving constituted a complete failure to exhibit the most basic of care, attention, lookout or precautions. Driving completely onto the wrong side of the road and head-on into another vehicle is a very serious example of this category of offending. Your offence is aggravated by the complete irresponsibility of you driving when you would have been, according to police evidence, plainly and significantly adversely affected by the methamphetamine you had taken.
Mohammad and Mojtaba Mohammadi were two young men going about their business, who did not deserve to have their lives cut short by your drug-fuelled, dangerous driving.
His Honour later said, ‘[y]our driving was extremely dangerous; crossing over entirely into the single opposite lane and driving head-on into another vehicle whilst significantly affected by methamphetamine’.
His Honour referred to the devastating impact the offending has had on the deceased’s family and the ‘heartfelt and tragic’ nature of the victim impact statements tendered to the Court.
The sentencing Judge noted that the applicant was fully cooperative with the police and that she was entitled to a reduction of up to 25 per cent in her sentence for her guilty plea. As to the applicant’s remorse, his Honour referred to the applicant’s letter of apology to the deceased’s family and that, through her counsel, she did not agitate for a suspended sentence or home detention order. His Honour also referred to several positive character references tendered on her behalf.
In turning to sentence, his Honour began with a starting point of eight years imprisonment for each offence. The sentencing Judge then considered that ‘as the events comprise a single course of action on your part, but resulted in two fatalities, there should, in the court’s view, be some partial concurrency’. A notional starting point of 12 years imprisonment was imposed. His Honour then reduced the sentence by the maximum 25 per cent for her guilty plea, resulting in a head sentence of nine years imprisonment.
The non-parole period was fixed at four-fifths of the head sentence as the offence was a ‘serious offence against the person’ and there were no submissions, nor any basis, to find that there were exceptional circumstances to fix a shorter non-parole period.[7] Accordingly, the sentencing Judge fixed a non-parole period of seven years, two months, and 12 days. His Honour also imposed a licence disqualification of 10 years to commence upon the applicant’s release from prison.
[7] Sentencing Act 2017 (SA) s 47(5)(d).
Manifest excess
The question of whether or not a sentence is manifestly excessive is to be determined by asking whether, after considering all the circumstances relevant to sentence, and notwithstanding that no specific error of reasoning may be apparent, the sentence imposed was unreasonable or plainly unjust.[8] The principles governing the task for the appellate court were explained by this Court in Hackett v The Queen:[9]
The administration of the criminal law involves individualised justice. The imposition of a just sentence on an offender in a particular case is an exercise of judicial discretion concerned with doing justice in that case. The exercise of the discretion that the law reposes in a sentencing judge does not yield a single correct sentence. Absent a specific error it is only if the sentence is found to be “unreasonable or plainly unjust” that a challenge of manifest excess will succeed. A sentence which is unreasonable or plainly unjust for no reason other than that it is manifestly too long or too short is a sentence which has not been imposed according to rules of reason and justice. It is not sufficient for this court to conclude that it would have come to a different decision to the one reached by the sentencing judge. The judgment is a discretionary one and what is required is that the sentencing judge must take into account all relevant (and only relevant) considerations in forming the conclusions reached. Judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies. To observe that a sentence is “very heavy” when compared with other sentences is not, without more, to conclude that it exceeded the bounds of the sentencing judge’s discretion.
(citations omitted)
[8] Hilfy v The Queen [2020] SASCFC 72 at [36]-[38] per Nicholson J (with whom Peek and Stanley JJ agreed); Markarian v The Queen (2005) 228 CLR 357 at [25] per Gleeson CJ, Gummow, Hayne and Callinan JJ.
[9] [2021] SASCA 32 at [8] per Kelly P, Lovell and Livesey JJA.
This Court will only intervene if the sentence is unreasonable or plainly unjust; or, put another way, if the sentence is outside the permissible range of sentences for the offender and the offence. It is not sufficient for the Court to determine that it would have imposed a lesser sentence.
The applicant contends that the offending, whilst attended by several serious features, did not warrant the sentence imposed. It was submitted that the sentence was disproportionately high compared to the objective seriousness of the offending and the positive matters personal to the applicant. In developing this argument, the applicant emphasised that lesser sentences have been imposed in other cases involving arguably more egregious examples of dangerous driving.
The applicant provided the Court with a schedule of sentences for the offence of aggravated causing death by dangerous driving ranging from 2016 to 2021. It includes both first instance and appellate decisions. The Court notes that it is unclear how complete this schedule is.
The material provided by the applicant revealed that:
1.There were only three decisions (in the schedule) in which the sentencing judge adopted a starting point of eight years or more for a single offence of aggravated causing death by dangerous driving.[10]
2.In decisions involving multiple counts of aggravated causing death and aggravated causing harm by dangerous driving, there were no matters in which a sentencing judge commenced with a starting point which exceeded 10 years (after accumulating the sentences and applying either total or partial concurrency, but before reducing the sentence for guilty pleas). Indeed, in most the starting point was considerably lower.
[10] The Queen v Butler (DCCRM-20-1594); The Queen v Clarke (DCCRM-20-632 and DCCRM-19-607); The Queen v Brine (DCCRM-19-1140). In argument, the applicant was also referred to the cases of R v Dundovic (2008) 101 SASR 32, R v Watkins (2013) 118 SASR 342 and R v Ceruto [2014] SASCFC 5 where the starting points for single offences were higher than eight years (although on the applicant’s argument, these cases involved more egregious examples of dangerous driving).
The limitations associated with any historical survey of comparative sentences are well known.[11] The process of instinctive synthesis which sentencing judges must undertake is not simply an exercise of mathematical comparison.[12] There is a need for sentencing courts to apply the principles of individualised justice. As the High Court explained in Hili v The Queen:[13]
Consistency is not demonstrated by, and does not require, numerical equivalence. Presentation of the sentences that have been passed on federal offenders in numerical tables, bar charts or graphs is not useful to a sentencing judge. It is not useful because referring only to the lengths of sentences passed says nothing about why sentences were fixed as they were. Presentation in any of these forms suggests, wrongly, that the task of a sentencing judge is to interpolate the result of the instant case on a graph that depicts the available outcomes. But not only is the number of federal offenders sentenced each year very small, the offences for which they are sentenced, the circumstances attending their offending, and their personal circumstances are so varied that it is not possible to make any useful statistical analysis or graphical depiction of the results.
The consistency that is sought is consistency in the application of the relevant legal principles. And that requires consistency in the application of Pt IB of the Crimes Act. When it is said that the search is for “reasonable consistency”, what is sought is the treatment of like cases alike, and different cases differently. Consistency of that kind is not capable of mathematical expression. It is not capable of expression in tabular form. That is why this Court held in Wong that guidelines that the New South Wales Court of Criminal Appeal had determined should be used in sentencing those knowingly concerned in the importation of narcotics were inconsistent with s 16A of the Crimes Act. Those guidelines had made the weight of the narcotic the chief factor determining the sentence to be imposed, thus distracting attention from the several considerations set out in the non-exhaustive list of matters prescribed by s 16A(2) as matters “the court must take into account” in fixing a sentence, if those matters are relevant and known to the Court.
[11] Hili v The Queen (2010) 242 CLR 520 at [48]-[49] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ.
[12] Hili v The Queen (2010) 242 CLR 520 at [46]-[57] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ.
[13] (2010) 242 CLR 520 at [48]-[49] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ.
In sentencing for the offence of aggravated causing death by dangerous driving, the objective seriousness of the offending and personal circumstances of the offender will inevitably vary, sometimes markedly, from case to case. No two cases are alike. The schedule of previous decisions relied upon by the applicant in the present matter demonstrated the wide range of circumstances encompassed by this offence. For that reason, a historical schedule or comparison of cases is generally of limited use.
Notwithstanding the qualifications outlined above, a comparable schedule of the range of sentences for similar offending may still provide a general guide when considering whether a sentence is manifestly excessive.[14]
[14] R v Nozuhur [2013] SASCFC 81 at [55] per Nicholson J citing R v Clancy [2013] SASCFC 63 at [63] per Sulan and Blue JJ.
The applicant, in contending that her sentence was manifestly excessive, emphasised several previous decisions which arguably involved more serious and egregious examples of this offence and for which markedly lower sentences were imposed by the sentencing judge than in the present case.
R v Akol (‘Akol’) was a Crown appeal.[15] The respondent pleaded guilty to one count of aggravated causing death by dangerous driving. The sentencing Judge commenced with a starting point of four years and six months and after a reduction of 30 per cent for the respondent’s guilty plea, imposed a sentence of three years, one month, and 25 days imprisonment. A non-parole period of two years, six months and eight days was fixed. The respondent was disqualified from holding or obtaining a driver’s licence for 13 years.
[15] (2020) 284 A Crim R 246.
The respondent was aged 19 at the time of the offending. The victim was his girlfriend and a passenger in the vehicle at the time of the collision. Immediately prior, the respondent was travelling at a speed exceeding 100 km/h in a 60 km/h zone and on the wrong side of the road, racing another vehicle. The respondent had a blood alcohol level of 0.22 per cent at the time of the offending. MDMA was also detected in his blood. He was driving in breach of a court ordered licence disqualification. Four months earlier, the respondent had been involved in another collision where he drove onto the wrong side of an expressway and collided head‑on with another vehicle. On that earlier occasion, he had returned a blood alcohol reading of 0.14 g of alcohol per 100 ml of blood.
On appeal, this Court held the sentence was manifestly inadequate and resentenced the respondent. The Court began with a starting point of six years and six months, reduced on account of his guilty plea to four years, six months, two weeks, and four days imprisonment. A non-parole period of three years, seven months, and three weeks was fixed. The respondent’s licence disqualification was increased to 15 years.
The applicant submitted that there were features in Akol more serious than in the present case, including the fact the respondent was racing another car immediately prior to the collision, had both alcohol and drugs in his system, and was driving in breach of a court ordered disqualification. He also had a similar prior conviction which had been committed shortly before the offending. Yet, the starting point on appeal in Akol of six years and six months was substantially less than the starting point of eight years in the present case. However, it is to be noted that the respondent in the matter of Akol was a very young man with a difficult upbringing as a refugee.
R v Edwards (‘Edwards’) was also a Crown appeal.[16] The respondent was sentenced for multiple offences including the offence of aggravated causing death by dangerous driving to imprisonment for four years, 10 months and 21 days, with a non-parole period of three years and six months. For the relevant offence of aggravated causing death by dangerous driving, the sentencing Judge started with a notional sentence of three years and six months. It was reduced on account of his guilty plea by 10 per cent to three years and two months. A non-parole period of imprisonment of two years and six months was fixed. The respondent was disqualified from holding or obtaining a driver’s licence for 10 years.
[16] [2016] SASCFC 145.
On appeal, the sentence for the relevant offence was held to be manifestly inadequate; a starting point of four years and six months was adopted, reduced by 10 per cent for the guilty plea to four years and one month, with the mandatory non-parole period of three years and four months fixed.
In Edwards, the respondent was driving home from work when he travelled onto the wrong side of the road and collided with another vehicle, causing the death of the driver of the other vehicle. The respondent had tetrahydrocannabinol (‘THC’) in his system. He subsequently committed other offences for which he was also sentenced at the same time.
The applicant submitted that the objective seriousness of the offending in Edwards was comparable with the present case, yet the starting point markedly lower.
Both the cases of Akol and Edwards involved a single count of aggravated causing death by dangerous driving. In the present matter, the applicant committed two counts of the offence and caused the deaths of two young men. For that reason, the applicant also relied on other decisions concerning more than one offence of aggravated causing death or harm by dangerous driving where it was said that the offending was more serious, and yet the sentences imposed were markedly less than in the present case.
In R v Watkins (‘Watkins’),[17] the appellant pleaded guilty to the offences of aggravated causing death by dangerous driving, one count of aggravated causing serious harm by dangerous driving, and four counts of aggravated causing harm by dangerous driving. A composite sentence of eight years imprisonment (reduced from 10 years to account for the guilty pleas) with a non-parole period of six years and five months was imposed. The appellant appealed against his sentence on the basis it was manifestly excessive. The appeal was dismissed.
[17] (2013) 118 SASR 342.
In Watkins, the appellant was driving with four passengers in his vehicle at very high speeds in the early hours of the morning. He was under the influence of alcohol and methylamphetamine. He also had THC in his blood. He collided with an oncoming vehicle, causing the death of one of the passengers in the appellant’s vehicle, serious injury to two other passengers, and minor injuries to the remaining passenger and the occupants of the other vehicle. In the present matter, the applicant noted that Watkins concerned driving that was more dangerous because the appellant was travelling at very high speeds on a suburban road in excess of the speed limit, thrill seeking by taking his hands off of the steering wheel with passengers on board, and he had a concoction of drugs and alcohol in his system. Yet the starting point (for the composite sentence) was markedly less than the 12 year starting point adopted in the present case.
The applicant in the historical schedule also referred the Court to several first instance decisions concerning multiple counts of aggravated causing death by dangerous driving,[18] or a combination of the offences of aggravated causing death and harm by dangerous driving.[19] These decisions were said to involve more serious or comparable offending for which significantly lower sentences were imposed.
[18] The Queen v Thomas (DCCRM-20-1877).
[19] The Queen v Ramsay (DCCRM-21-795); The Queen v Butler (DCCRM-20-1594); The Queen v Clarke (DCCRM-20-632 and DCCRM-19-607); The Queen v Panozzo (DCCRM-19-17); The Queen v Sang (DCCRM-18-1481); The Queen v Scott (DCCRM-16-991); The Queen v Greatley (DCCRM-17-1222); The Queen v Kay (DCCRM-17-1793); The Queen v Nguyen (DCCRM-14-1314); The Queen v Daley (DCCRM-16-2218).
Whilst acknowledging the serious aspects of her offending, the applicant submits that her manner of driving was not one of the more serious or egregious examples of this offence as it was not attended by other matters of aggravation which feature in other sentencing decisions where comparable or lesser sentences were imposed. For example, it is submitted there is no evidence of speeding, racing another vehicle, or a police pursuit prior to the collision, the driving was not in breach of a court order, and the applicant has limited prior convictions for traffic offences committed over 20 years ago.
The applicant does not point to any identifiable error by the sentencing Judge. Rather, she contends that the sentence imposed is so lengthy that it must be infected by error. The applicant submits that the sentence is disproportionately high to the objective seriousness of the offending and her personal circumstances and is outside the permissible range of sentence.
Notwithstanding the serious aspect of the applicant’s offending, in our view, the sentencing Judge commenced with a starting point in respect of each offence which is too high and outside the permissible range of sentences for each offence.
Undoubtedly, the serious features of the applicant’s offending needed to be properly reflected in the sentence. They included the following matters. The applicant set out from Victor Harbor to Adelaide knowing there was about 90 km to travel on a single carriageway with speed zones of up to 100 km/h having ingested methylamphetamine. She did not make a spontaneous decision to drive in circumstances where she was deprived of other options. It was inherently dangerous for the applicant to drive in her physical condition over a long distance at a high speed, albeit not exceeding the speed limit. The applicant crossed wholly over the double white lines and had a head-on collision with the vehicle driven by the deceased. The driver of the other vehicle had no opportunity to avoid the collision.
Further, the consequences of the applicant’s driving are that two brothers, young men with their futures ahead of them, have lost their lives. Their deaths have had a devastating impact on their family and community. Whilst the consequences of this type of offending will not ordinarily reflect the moral blameworthiness of an offender,[20] it is always a factor in assessing the gravity of the offence.[21] The unintended consequences of an offence must always be taken into account.[22]
[20] The Queen v Johnston (1985) 38 SASR 582 at 585 per King CJ; R v Hietanen (1989) 51 SASR 510 at 517 per King CJ (with whom Mohr J agreed); R v Edwards [2016] SASCFC 145 at [31] per Blue, Lovell and Hinton JJ.
[21] R v Edwards [2016] SASCFC 145 at [31] per Blue, Lovell and Hinton JJ.
[22] R v Chalmers (2012) 115 SASR 150 at [15] per Kourakis CJ.
The sentencing Judge correctly noted that the sentence needed to reflect the seriousness of the offending which ‘ended the lives of two innocent members of the community and seriously affected the lives of many others’. However, principles of personal deterrence did not loom as large in the sentencing process. The applicant had limited and dated antecedents. She pleaded guilty at an early opportunity and accepted responsibility for her offending conduct. She expressed remorse for her offending to the forensic psychologist, the sentencing Judge, and in a letter to the deceased’s family. The sentencing Judge had regard to and accepted the applicant’s remorse. There was also material before the sentencing Judge to indicate that the applicant had ceased using illicit drugs (after an initial relapse) and obtained treatment for her mental health. For those reasons, principles of personal deterrence did not need to feature prominently in the sentence.
Notwithstanding the serious aspects of the offending which we have outlined, and the need for the principles of deterrence and the paramountcy to be afforded the protection and safety of the community, we have reached the conclusion that the starting point for each sentence was too high and outside the permissible range for each offence. The objective circumstances of the offending were not attended by many of the more egregious circumstances which would justify a starting point of eight years. There were also several positive aspects of the applicant’s personal circumstances. As outlined earlier, she had accepted full responsibility for her offending conduct and expressed her remorse. She had made considerable efforts to address her poor mental health and use of illicit drugs. She had limited and dated antecedents. There were many positive influences in her life, as evidenced by the several character references tendered on her behalf. A starting point of eight years for each offence was simply disproportionate to the applicant’s offending conduct and her personal circumstances.
The sentencing Judge applied the principles of concurrency and ordered that the sentences be served partially concurrently. It was open to the sentencing Judge to exercise the discretion under s 26 of the Sentencing Act2017 (SA)
(‘Sentencing Act’) to impose one composite penalty for multiple counts. In the present case, the sentencing Judge adopted another and equally appropriate approach. His Honour imposed separate sentences for each offence and ordered that the second sentence be partially concurrent. This approach reflected that both offences were committed by the one act of driving and militated against the applicant being punished for the same conduct more than once. Legal culpability rather than moral culpability may, in matters such as the present case, be increased where the defendant’s wrongdoing causes more than one death. In such matters, most of the purposes of punishment will be fully reflected in the sentence for the first count.[23] For that reason, if separate sentences are to be imposed for multiple offences committed by one act of driving, it is often appropriate to make the sentence for a subsequent offence or offences partially concurrent.[23] R v Wooldridge (2015) 123 SASR 422 at [80] per Gray ACJ, Peek and Nicholson JJ.
In the present case, in making the sentences partially concurrent, the sentencing Judge imposed an accumulated sentence of imprisonment for 12 years (before reducing that to nine years on account of the applicant’s guilty pleas). As discussed, it was appropriate for the sentencing Judge to partially accumulate the sentence for the second count to reflect the compounded consequences of the driving. However, the ultimate question is whether the accumulated sentence of 12 years (reduced to nine years) is manifestly excessive. Whilst acknowledging that a determination of whether a sentence is manifestly excessive is, to some extent, a conclusion and does not lend itself to a detailed analysis, we are of the view that the accumulated sentence of 12 years (reduced to nine years for the applicant’s guilty pleas) was outside the permissible range of sentences. The sentence was disproportionate to the criminality of the applicant’s conduct, including the seriousness of the offending and her personal circumstances. We are satisfied the sentence was manifestly excessive.
It follows that the appeal should be allowed, and the applicant resentenced.
Resentence
For reasons we have outlined earlier, there were several serious aspects to the offending. As such, principles of general deterrence and the paramountcy to be afforded the protection and safety of the community must be reflected in the sentence. However, as discussed earlier, principles of personal deterrence, whilst still relevant, in this case have less of a role to play. There is a sound basis to consider that with appropriate ongoing treatment of the applicant’s mental health and in light of her associated abstinence from using illicit drugs, she has good prospects of rehabilitation and is unlikely to reoffend.
In the circumstances of this case, we would adopt a notional starting point of six years imprisonment for each offence.
In order to reflect the fact that the two offences involved one act of driving and to ensure that the sentence reflects the total criminality of the offending conduct, including that it involved two deaths, we would order that the sentences be partially concurrent with three years of the sentence for Count 2 to be served concurrently with the sentence for Count 1.
This results in a notional head sentence of nine years imprisonment.
We reduce that sentence by 25 per cent for the applicant’s guilty pleas, resulting in a head sentence of six years and nine months imprisonment. Pursuant to s 47(5)(d) of the Sentencing Act, we fix a non-parole period of five years and five months, that being four-fifths of the head sentence. The head sentence and non-parole period are to commence on 7 October 2021, when the applicant was taken into custody.
There was no submission before this Court that it is appropriate to suspend the sentence of imprisonment or order that it be served on home detention.
We would not interfere with the order that the applicant be prohibited from obtaining or holding a driver’s licence for 10 years, commencing on the applicant’s release date from prison.
Conclusion
We grant the applicant permission to appeal and allow the appeal.
We set aside the sentence of imprisonment imposed by the sentencing Judge and substitute in lieu thereof, a sentence of six years and nine months imprisonment, with a non-parole period of five years and five months to commence on 7 October 2021.
The applicant is prohibited from obtaining or holding a driver’s licence for 10 years, commencing on the applicant’s release date from prison.
Pursuant to s 19A(1) of the Criminal Law Consolidation Act 1935 (SA), for an aggravated offence, the maximum penalty is imprisonment for life and disqualification from holding or obtaining a driver’s licence for 10 years or such longer period as the court orders. Pursuant to
s 5AA(1a) of the Criminal Law Consolidation Act 1935 (SA), the offending was aggravated as the applicant was driving a vehicle in contravention of s 47BA of the Road Traffic Act 1961 (SA) due to the methylamphetamine in her blood at the time of the offending.
12
13
1