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…
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- AGLC
- BUBNER v The Queen [2022] SASCA 27
- Case
- [2022] SASCA 27
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the Court were whether the sentence of imprisonment was manifestly excessive and whether the 10-year disqualification period was appropriate. The Court was required to consider the principles of sentencing for culpable driving causing death, including the appropriate weight to be given to a guilty plea and the need for deterrence.
The Court found that the original sentence imposed was manifestly excessive. In resentencing, the Court adopted a notional starting point of six years imprisonment for each offence, with three years of the sentence for Count 2 to be served concurrently with the sentence for Count 1, resulting in a notional head sentence of nine years. This was then reduced by 25 per cent for the guilty pleas, leading to a head sentence of six years and nine months imprisonment. A non-parole period of five years and five months was fixed, commencing on 7 October 2021. The Court did not interfere with the 10-year prohibition from holding a driver's licence, commencing on the applicant's release date.
Orders
Orders of the court
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.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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