Kevin Patrick Power v R No. SCCRM 93/453 Judgment No. 4429 Number of Pages 3 Criminal Law and Procedure Sentence

[1994] SASC 4429

COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA COURT OF CRIMINAL APPEAL KING CJ(1), BOLLEN(2) AND MULLIGHAN(3) JJ

CWDS
Criminal law and procedure - sentence - causing grievous bodily injury by dangerous driving - collision between car driven by appellant and cycle - ingestion of Rohypnol tablets - failure to stop after collision - male aged 18 years - importance of rehabilitation - sentence 3 years with non-parole period of 27 months reduced to 2 years with non-parole period 15 months - licence disqualification 6 years affirmed.

HRNG ADELAIDE, 21 February 1994 #DATE 21:2:1994

Counsel for appellant:     Mr M T Boylan

Solicitors for appellant:    Tindal Glask Bentley

Counsel for respondent:     Mr P J L Rofe QC

Solicitors for respondent: DPP

ORDER
Appeal allowed.

JUDGE1 KING CJ This is an appeal against a sentence imposed in the District Court for the crime of causing bodily harm by dangerous driving. The offence is particularised in the information as driving a motor vehicle in a manner which was dangerous to the public and thereby causing grievous bodily harm to the victim.

2. The sentence which was imposed was imprisonment for three years with a non-parole period of 27 months. The appellant was disqualified from holding or obtaining a driver's licence for a period of six years.

3. The offence occurred in the late afternoon on Morphett Road, Morphettville. The victim was riding his bicycle home from work. The appellant was driving a motor car in which there were two passengers. The victim rode his cycle along Morphett Road in a southerly direction and rode across the junction of that road with Austral Terrace. The appellant's car was driven in a westerly direction on Austral Terrace. It became stationary at the junction of Morphett Road. The appellant then turned left into Morphett Road. He desired to overtake the cyclist and looked to the rear for the purpose of satisfying himself that there was no overtaking traffic.

4. In the course of overtaking the cyclist the appellant's car came into collision with the rear of the cycle. The appellant did not stop. He drove on carrying both the bicycle and the cyclist under the car. The cyclist, the victim, was dragged for some 330 metres under the car. The appellant continued on for almost a kilometre until he abandoned the car. The cycle was still jammed under the car when the car was abandoned.

5. When approached by the police two days later the appellant claimed that one of the passengers was the driver of the car. In fact, it appears that one of the other occupants of the car had driven the car to a point some distance before the collision with the cycle, but had himself been involved in an accident and the appellant had then taken over the driving of the car.

6. The victim suffered considerable injury. He suffered multiple soft tissue and bone injuries. There were fractures to his left scapula, a fracture of the left elbow and a fracture of the pelvis. There was an injury to the right hip, including skin loss, and there was skin loss on the left shoulder and also on his back. Skin grafts were required. The left elbow fracture had to be wired.

7. The victim has been left with some residual effects of the accident. He has, of course, scarring and possibly some residual loss of function in the left elbow. In all he suffered a considerable amount of pain and discomfort and the effects of the accident on him is disclosed by a victim impact statement which was before the sentencing judge.

8. There are serious aspects of this case. It has caused the considerable injury which I have described, the appellant did not have a licence to drive the motor vehicle. On his own version he had taken six Rohypnol tablets the night before the accident and two on the morning of the accident. There was expert evidence that the ingestion of that quantity of the drug was incompatible with safe driving.

9. Just what the effect of any drug which the appellant had ingested had had upon him of course cannot be ascertained because of his action in leaving the scene. This is a very serious aspect of this case. It is a serious aspect of a driving offence because it deprives the authorities of the opportunity of ascertaining whether the offender who leaves the scene is affected by alcohol or drugs. It is also serious, of course, in the callousness which it displays for the welfare of an injured victim.

10. It is quite understandable that the learned sentencing judge took a serious view of the case.

11. There are two things to be said in the appellant's favour. One is that he pleaded guilty; not, it appears, at the earliest opportunity but there was a plea which avoided the necessity of a trial.

12. The other is his youth. The appellant was only 18 years of age at the time of this accident. It is a very serious step to send to prison a young man who has not had previous experience of prison and the length of any prison sentence considered to be necessary must be carefully scrutinized.

13. The appellant does not have a clean record. He committed a number of offences as a juvenile, including two offences of driving whilst disqualified. As an adult he has been convicted of failing to wear a seat belt. Although that is the only offence bearing upon the use of a motor vehicle which he has committed as an adult, he has also been convicted as an adult of the crimes of receiving, unlawful possession, possession of cannabis and possession of equipment associated with drugs.

14. Nevertheless, he has never previously been in gaol. In those circumstances, considerations of rehabilitation must play an important part in the framing of an appropriate sentence. We have had a number of cases cited to us, both sentences with respect to offences of causing death by dangerous driving and offences of causing bodily harm by dangerous driving. As this court has often pointed out, the citation of other cases of sentences on different facts is of little value to the appellate court. In the end, every case has to be judged on its own facts and upon its own merits. The appellate court has to ask itself whether the sentencing discretion has miscarried.

15. I have given anxious consideration to this case, particularly having regard to the serious aspects of it to which I have made reference. In the end, however, I have reached the conclusion that, by reason of the youth of this offender, a sentence of three years with a non-parole period of 27 months does exceed the limits the sentencing discretion and does require the intervention of this court.

16. I would allow the appeal. I would reduce the head sentence to imprisonment for two years and would fix a non-parole period of 15 months, both to commence 9 November 1993. I would affirm the period of disqualification.

JUDGE2 BOLLEN J I agree.

JUDGE3 MULLIGHAN J I agree.