SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
HUEPPAUFF v THE KING
[2024] SASCA 11
Judgment of the Court of Appeal
(The Honourable President Livesey, the Honourable Justice Bleby and the Honourable Justice David)
22 February 2024
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 two counts of causing death by dangerous driving, contrary to s 19A(1) of the Criminal Law Consolidation Act 1935 (SA) (‘the CLCA’) (Counts 1 and 2); and one count of causing harm by dangerous driving, contrary to s 19A(3) of the CLCA (Count 3).
On 12 September 2018, the appellant was driving behind a B-double semi-trailer (‘the semi-trailer’). His partner at the time was a passenger in the vehicle. As the appellant's vehicle approached a crest in the road obscuring his view of oncoming traffic, he misunderstood the hazard lights operating on the semi-trailer as a signal that it was safe to overtake. He attempted to overtake the semi-trailer, crossing over an unbroken white line in the process. Shortly after crossing onto the opposite side of the road, the appellant collided head-on with another vehicle causing the death of its two occupants. The appellant’s passenger also sustained injuries in the collision.
The appellant was sentenced to four years and six months' imprisonment with a mandatory minimum non-parole period of three years, seven months, and seven days. The sentencing Judge also disqualified the appellant from holding or obtaining a driver's license for 10 years to commence upon his release from prison.
The sentencing Judge declined to suspend the sentence, or order that the sentence be served on home detention.
The appellant sought permission to appeal against his sentence on the sole ground that the sentence was manifestly excessive. The appellant complained that the sentencing Judge erred in his application of s 96 of the Sentencing Act 2017 (SA) (‘the Sentencing Act’) by finding there was not good reason to suspend the sentence, and erred in his application of s 71 of the Sentencing Act by declining to order that the sentence be served on home detention.
Held, per the Court, granting permission to appeal but dismissing the appeal:
1.The sentence imposed was not manifestly excessive.
2.There was no error by the sentencing Judge in finding there was not good reason to suspend the sentence or in declining to order that the sentence be served on home detention.
3.The licence disqualification of 10 years, combined with the length of the immediate custodial sentence, did not result in a manifestly excessive sentence.
Criminal Law Consolidation Act 1935 (SA) ss 19A(1), 19A(3); Sentencing Act 2017 (SA) ss 3, 4, 47(5)(d), 96, 71, referred to.
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- AGLC
- Hueppauff v The King [2024] SASCA 11
- Case
- [2024] SASCA 11
- Decision Date
CaseChat Overview and Summary
The Court of Appeal was required to determine whether the sentencing judge had erred in finding that there was no good reason to suspend the sentence or order it to be served on home detention, and whether the combined effect of the custodial sentence and the licence disqualification was manifestly excessive. In doing so, the court had to consider the objective seriousness of the offending, applying an objective standard to assess whether the driving subjected the public to a risk beyond that ordinarily associated with driving.
The court reasoned that while the appellant's offending did not involve aggravating factors such as intoxication or driving whilst disqualified, it did possess objectively serious features. These included driving too close to a semi-trailer, failing to appreciate the trailer's indicators, and attempting to overtake on a section of road with an unbroken white line approaching a crest that obscured oncoming traffic. The court affirmed that dangerous driving causing death is an offence of gravity, particularly given the loss of two lives and serious injury to another. While acknowledging the significant punishment the licence disqualification would represent for the appellant due to his residence, the court concluded that the combination of the immediate custodial sentence and the licence disqualification did not result in a manifestly excessive sentence.
Permission to appeal was granted, but the appeal itself was dismissed.
Orders
Orders of the court
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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
The appellant contends that this case warrants a substantially ‘lesser sentence’ (as explained in Payne) given the driving was not attended by any aggravating features, his low level of moral culpability and favourable personal circumstances. Accordingly, the sentencing Judge imposed a manifestly excessive sentence by finding there was not good reason to suspend the sentence, or, in the alternative, declining to order it be served on home detention. Consideration The starting point for this Court in determining whether the sentence was manifestly excessive is a consideration of the objective seriousness of the offending. Each of the three offences to which the appellant pleaded guilty alleged that he drove in a manner dangerous to the public. Whether driving is dangerous to the public involves the application of an ‘objective standard’ which is ‘impersonal in the sense that it does not vary with individuals, and it is universal in the sense that it is applicable in the case of all persons who drive motor vehicles.’[17] As to what conduct constitutes dangerous driving, ‘there must be some feature which is identified not as a want of care but which subjects the public to some risk over and above that ordinarily associated with the driving of a motor vehicle’.[18] [17] R v Coventry (1938) 59 CLR 633 at 638 per Latham CJ, Rich, Dixon and McTiernan JJ.[18] Jiminez v The Queen (1992) 173 CLR 572 at 579 per Mason CJ, Brenna, Deane, Dawson, Toohey and Gaudron JJ. The offence of causing death by dangerous driving attracts a maximum penalty of imprisonment for 15 years together with a mandatory minimum licence disqualification of 10 years. It is an offence of gravity as it involves the loss of human life. The consequences of a person’s dangerous driving are often profound, leading to irreversible harm and suffering. In this instance, two lives were lost and another individual seriously injured, causing terrible distress to their families and loved ones. Contrary to the appellant’s submissions, his offending did not fall at the lower end of the scale of seriousness for this type of offence. It is to be accepted that the appellant’s offending did not involve any circumstances which would render him guilty of the aggravated form of the offences, such as alcohol or drug intoxication. Nor was the appellant disqualified from driving at the relevant time or driving in contravention of any court order. However, there were other objectively serious features to the offending. The appellant was travelling too close to the rear of the semi-trailer to be able to have an effective field of vision or to properly appreciate that the driver had activated both indicators (hazard lights). He attempted to overtake the semi-trailer by crossing an unbroken white line (in breach of the Australian Road Rules) at a section of the road approaching a crest which obscured any view of oncoming traffic on the other side of the crest. Any attempt to overtake a semi-trailer would necessitate the appellant driving on the opposite side of the road, at speed, for an extended period.