Daniel Kawhai Huriwai v R No. SCCRM 94/340 Judgment No. 4785 Number of Pages 7 Criminal Law and Procedure

[1994] SASC 4785

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA COURT OF CRIMINAL APPEAL KING CJ(2), MILLHOUSE(1) AND PERRY(3) JJ

CWDS
Criminal law and procedure - Prisoner's appeal against sentence - appellant pleaded guilty to causing death by dangerous driving and causing grievous bodily harm by dangerous driving and to two counts of causing bodily harm by dangerous driving - blood alcohol level 0.22%. - Trial judge imposed sentence of three years with non-parole period of 12 months: licence disqualification of nine years - trial judge sentencing on 1 July 1994 appeared to have overlooked Statutes Amendment (Truth in Sentencinq) Act 1994 - sentence reduced on appeal to two years with non-parole period of eight months. RoadTraffic Act (SA) s63. R v Hicks (1987) 45 SASR 270, discussed.

HRNG ADELAIDE, 19 September 1994 #DATE 7:10:1994

Counsel for appellant:     Mr P Rice

Solicitors for appellant:    Di Sotto and Rowe

Counsel for respondent:     Mr D Whittle

Solicitors for respondent: DPP (SA)

ORDER
Appeal allowed.

JUDGE1 MILLHOUSE J The appellant pleaded guilty before Judge Russell to causing death by dangerous driving, to causing grievous bodily harm by dangerous driving and to two counts of causing bodily harm by dangerous driving.

2. It happened at night on 3 July 1993 on Churchill Road at Prospect. The appellant was going north in his brown Valiant. The other car, a white Nissan, driven by a lad of 17 made a right hand turn into Churchill Road from a side street, Victoria Street, to travel in the same direction as the appellant. In this other car were a front seat passenger and four passengers in the back. They had all been to a school formal and at least one party afterwards. The lad had had his licence only for a short time.

3. As the lad completed his turn the appellant hit him causing the Nissan to roll over and finish on its hood. The dead boy, one of the four in the back, was trapped underneath other passengers and asphyxiated.

4. This is from the remarks of the learned sentencing judge:-
    " ... At the time of the collision, you admitted that you
    were travelling between 80 and 85 k.p.h. and that you had
    taken your eyes off the road for a couple of seconds in
    order to obtain a cigarette which was being lit for you by
    your brother. You had been drinking West End Export beer
    and smoking cannabis during the evening ... A count back of
    your blood alcohol reading from the time of the collision
    revealed that you would have had a blood alcohol reading
    of.22 per cent."

5. On 1 August this year Judge Russell imposed one sentence for the four offences, of three years imprisonment with a non parole period of 12 months: he did not suspend the sentence: he disqualified the appellant from driving for nine years. The appellant complains both of the failure to suspend and of the severity of his penalty.

6. Mr Paul Rice, for the appellant, took two points in arguing for suspension - first that the learned judge had come to the erroneous conclusion that the accident had been entirely the appellant's fault and secondly that he had not considered it a mitigating factor that the deceased (and apparently all the passengers in the other car) were not wearing seat belts.

7. As to these points His Honour said:-
    "Mr Rice, however, has endeavoured to shift some of the
    blame for the collision onto the driver of the other car.
    He labelled him as an inexperienced driver who had only had
    his provisional plates for three weeks ... what is clear is
    that Gabrielle Gilbert who was sitting in the front
    passenger's seat in the car with which your car collided,
    says that the driver of that other car, Damian Seeger,
    stopped his car at the junction of Victoria Street and
    Churchill Road. She saw the lights of an on-coming (car)
    to her left but, it was as she described it, a considerable
    distance away and she took the view that it was far enough
    away for Damian to make his turn to the right into
    Churchill Road with safety.

In my view, those circumstances are not such that any blame
    for the results of the collision can be shifted to Damian
    Seeger ... there is no suggestion that Damian Seeger had
    committed any road traffic offence. Mr Rice also submitted
    that the way in which Nicholas Altman met his death was
    also a mitigating factor which should incline me to
    suspending the sentence of imprisonment. I do not agree.
    Whilst it may be, and no doubt it was, wrong for there to
    be four passengers in the back seat of that Nissan car, and
    that at least Nicholas Altman, if not all of them, were not
    wearing seatbelts and he was crushed by the weight of the
    others who fell on top of him, after the impact of the
    collision.

He would have survived that journey to his home had it not
    been for the fact that you drove your car at a high speed
    into the rear of the Nissan car driven by Damian Seeger."

8. With respect, I think His Honour may be in error. The other driver had an obligation to give way to the appellant pursuant to s63 of the Road TrafficAct: he was turning right at a junction and should have given way to vehicles on the road into which he was turning. He did not give way, probably because he miscalculated the speed of the appellant's approach. Without minimising the bad driving of the appellant, the lad must be taken to have been in part - I do not attempt to work out what part - to blame for the accident.

9. As to the failure of the dead boy and the other passengers to wear seatbelts, that does, I think, favour leniency towards the appellant.

10. The question then is whether these considerations mean that the learned sentencing judge's discretion in not suspending the sentence so far miscarried as to mean we should interfere. I do not think so.

11. The Chief Justice said in The Queen v Hicks (45 SASR 270 at 272):-
    " Considerations of deterrence and satisfaction of public
    outrage must undoubtedly play a large part in the fixing of
    sentences for crimes of this kind. For that reason
    suspension of a sentence for this type of crime cannot be
    the norm."

12. The two points which Mr Rice has identified do not justify our interference; they do not, I suggest distinguish this case from the normal: they are not sufficiently exceptional. I should say as well, that if I were to have had to exercise my own discretion I would not have suspended the imprisonment either: the appellant's driving and his preceding conduct in drinking and smoking marijuana were too bad for that. Moreover the penalty was imposed not only for causing death but also for causing grievous bodily harm and bodily harm by his driving.

13. I consider the question of the length of sentence.

14. Mr David Whittle, for the Crown, acknowledged that the penalty was towards the higher end of the scale but argued that it was not manifestly excessive.

15. Two things worry me. The first is that His Honour sentenced on 1 August, the first day of the truth-in-sentencing legislation: that means no remissions. The learned sentencing judge does not, in his Remarks, mention the change of system: on the other hand he doesn't refer to remissions either. However I notice that he heard submissions on 18 July. If His Honour works in the same way as most of us he would not have waited until the Monday morning, the first of August, to decide on penalty and to prepare his sentencing remarks. He probably made up his mind some time between 18 July and 1 August, before truth-in-sentencing came into operation. I cannot put out of my mind the thought that he has overlooked the effect of the changes in the law on the very day he sentenced, has failed to adjust his sentence accordingly.

16. This surmise is strengthened by considering the penalty he had imposed on the preceding Friday on a man named Pym who was guilty of two counts of causing death by dangerous driving. Pym also had a blood alcohol reading of .22 percent. I acknowledge the inappropriateness and indeed the danger of making too close a comparison of cases - each is unique - but one may, as we all do, look at other similar cases as a guide. I look at Pym's penalty compared with the appellant's. Pym's driving was, from what I know of the facts, rather worse than the appellant's. His Honour gave him three years but only a nine month non parole period: remissions applied, meaning that the non parole period for Pym is only half that of the appellant. Justice must not only be done but also must be seen to be done. On a comparison of the two cases justice is not seen to have been done.

17. I have come to the conclusion that the head sentence and the non parole period should each be reduced by one-third.

18. I do not think the sentence should be suspended nor would I alter the licence disqualification of nine years (indeed there was no appeal against this) but I suggest that the appeal be allowed by reducing the head sentence to two years and the non parole period to eight months.

JUDGE2 KING CJ In my opinion this appeal should be allowed and the sentence should be reduced to imprisonment for two years with a non-parole period of eight months. I have nothing to add to reasons given by Justices Millhouse and Perry.

JUDGE3 PERRY J The appellant appeals by leave against the sentence imposed upon him in the District Court following his plea of guilty to an information alleging one count of causing death by dangerous driving, one count of causing grievous bodily harm by dangerous driving, and two counts of causing bodily harm by dangerous driving.

2. Pursuant to the provisions of s.18a of the Criminal Law Sentencing Act, one sentence was imposed, namely, a term of imprisonment for three years. The learned sentencing Judge fixed a non-parole period of 12 calendar months, together with a driver's licence disqualification for nine years, with a further order that the licence not be restored unless and until the appellant passes a driving test as prescribed by s.79a of the Motor Vehicles Act.

3. The appellant is a single man aged 25 years. He was born in New Zealand and came to South Australia in 1989. His licence had been disqualified in New Zealand, and he never attempted to obtain one in South Australia. Prior to the offence in question he had been living for about eight years in a de facto relationship. He had been working since October 1992 with the Submarine Corporation as an electrical trades assistant.

4. The offences arose out of a road accident which occurred on Churchill Road, Prospect, in the early hours of the morning of 3 July 1993. The appellant had been drinking most of the night. His blood alcohol level at the relevant time was approximately 0.22%. As well, he admitted to having smoked what he described as four cones of marijuana.

5. At the time of the accident, the appellant was driving a Valiant sedan motor car north on Churchill Road. A Nissan sedan emerged from Victoria Street, which adjoins Churchill Road on the east side, and executed a right hand turn so as to travel north in Churchill Road. The Nissan must only just have completed the right hand turn when the appellant's car ran into it from the rear, causing a violent collision. The force of the collision sent the Nissan across to the western side of the road where it side-swiped a post holding up a street sign, and careered over onto its roof, ending up facing south in an upturned position against the front fence of a house.

6. The appellant's car proceeded further north past the point at which the Nissan had come to rest, through the front fence of another house property, and into collision with another vehicle, a Holden station wagon, which had been parked in the driveway of that house. The impact forced the station wagon across the property to a position against the northern side fence where both vehicles came to rest.

7. There were six teenagers in the Nissan. They had all been to a school dance and then to a party. Two were in the front and four in the rear of the car. It does not appear that those in the rear were wearing seat belts. The driver was a probationary driver who was said to have had little driving experience. One of the rear seat passengers, a young student aged 16, died soon afterwards, as a result of injuries received in the accident. The remaining occupants of the Nissan all suffered injuries of varying degrees of severity. The appellant's brother, who was a passenger in the Valiant, suffered serious injuries which resulted, amongst other things, in the loss of his right eye.

8. During the course of his sentencing remarks, the learned District Court Judge exonerated the driver of the Nissan from any responsibility for the collision. In my opinion, that view was erroneous.

9. The appellant took his eyes off the road while he turned towards his brother who lit the appellant's cigarette. When he turned back, he must have seen the Nissan either in the process of completing its turn or very soon thereafter, as the appellant's car left a tyre mark measuring over 16 metres leading up to the point of impact. The Valiant was in a position in which the driver of the Nissan should have seen it as it approached. That driver had a duty under s.36 of the Road Traffic Act to give way to the appellant's vehicle. It seems likely that he made an error of judgment in estimating the speed of the appellant's approach.

10. I have referred in detail to the passage of the vehicles after impact which tends to confirm that the appellant was travelling at a very high speed. He admitted to 85 kilometres per hour in a 60 kilometres per hour zone. But even allowing for that, it appears to me that the learned Judge went too far in rejecting any suggestion that the driver of the Nissan was even partly to blame.

11. True it is that it was not the learned sentencing Judge's responsibility in any relevant sense to apportion blame between the drivers of the vehicles. There can be no doubt that his excessive speed, coupled with the consequences of the appellant's drinking and consumption of marijuana, must lead to the conclusion that the appellant's driving was a cause, if not the substantial cause, of the collision and resultant injuries. But where, as in my opinion was the case here, the other driver was guilty of a not insignificant breach of the road traffic laws, that is a matter which ought to have been taken into account.

12. Likewise, the learned sentencing Judge, although acknowledging that the deceased, and probably the other passengers in the back seat of the Nissan were not wearing seat belts, it appears that he was not willing (in my view wrongly) to take that aspect of the matter into account in determining sentence.

13. In fixing the head sentence of three years imprisonment, the learned Judge did not indicate what deduction he was allowing for the plea of guilty. This Court has said on a number of occasions that it is incumbent upon a sentencing Judge to indicate what reduction is allowed for that circumstance - see, for example, R v Harris and Simmonds (1992) 59 SASR 300 per King CJ at 302.

14. The sentence was imposed on the first day upon which the truth in sentencing legislation came into operation. The fact that no remissions for good behaviour are now allowed means that the sentence of three years equates with a sentence of approximately four and a half years if the sentence had been imposed before the relevant amendments came into effect.

15. Like Millhouse J, I think it likely that the learned Judge did not allow for this factor. My suspicion that this was so is strengthened when one compares the sentence imposed in this case with that imposed in the case of Pym referred to in the judgment of Millhouse J.

16. For the reasons which I have given so far, it seems to me that the sentencing discretion miscarried, and should be exercised afresh by this Court.

17. There is no question but that the offence was a serious one and deserved a custodial term of imprisonment. The learned sentencing Judge was clearly right in declining to suspend the sentence. But in all the circumstances, for the reasons which I have given, I consider that the appeal should be allowed for the purpose of reducing the head sentence and the non-parole period to the extent indicated in the judgment of Millhouse J.

18. I agree with the order which he proposes.