Henley v The King

[2024] SASCA 52

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Criminal)

HENLEY v THE KING

[2024] SASCA 52

Judgment of the Court of Appeal  

(The Honourable Justice Bleby, the Honourable Justice David and the Honourable Justice Stein)

2 May 2024

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE

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

CRIMINAL LAW - SENTENCE - INTERPRETATION OF SENTENCING PROVISIONS

Appeal against sentence.

The appellant pleaded guilty to manslaughter and to leaving the scene of an accident after causing death by careless driving.  The circumstances of the offending involved the appellant pursing another vehicle and culminated in the appellant repeatedly ramming his vehicle into the other vehicle causing it to roll three times.  Mr Nicholas Darling died due to injuries suffered in the collision.  The appellant left the scene, abandoned his vehicle and later set it on fire.

The appellant was sentenced to a single sentence of 13 years and six months.  A non-parole period of 11 years was imposed in respect of both counts.

The appellant sought permission to appeal against sentence on two grounds; namely that the sentence imposed was manifestly excessive; and that the sentencing Judge erred in utilising s 26 of the Sentencing Act 2017 (SA) to impose a single sentence for the offending.

Held, per the Court, granting permission to appeal, allowing the appeal, and resentencing the appellant:

1.The sentencing Judge erred in utilising s 26 of the Sentencing Act 2017 to impose a single sentence in circumstances where manslaughter was a designated prescribed offence under s 26 of the Sentencing Act 2017.

2.This Court cannot in the exercise of a separate and independent discretion conclude that no different sentence should be passed in a case involving multiple offences when one offence is manslaughter.  Accordingly, the appropriate course is to re-sentence the appellant. 

3.The appellant is to be re-sentenced to 10 years, five months and 13 days for the offence of manslaughter; and two years, 10 months and seven days for the offence of leaving the scene of an accident after causing death by careless driving with a period of concurrency of nine months and 20 days resulting in a combined period of imprisonment for both offences of 12 years and six months.  A non-parole period of nine years, being at least four-fifths of the sentence for manslaughter, is imposed.  The appellant is disqualified from holding a driver’s licence for 15 years to commence upon his release from custody.

Sentencing Act 2017 (SA) ss 5, 26; Road Traffic Act 1961 (SA) s 43, referred to.
House v The King (1936) 55 CLR 499; Kentwell v The Queen (2014) 252 CLR 601; R v Lavender (2005) 222 CLR 67; R v Forbes (2005) 160 A Crim R 1; Hassan v The Queen [2022] SASCA 56; Lees v The Queen [2022] SASCA 93; Teagle v The King [2023] SASCA 108; Bugmy…