Martain v The King

Case [2023] SASCA 104

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Criminal)

MARTAIN v THE KING

[2023] SASCA 104

Judgment of the Court of Appeal  

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

28 September 2023

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.

Following a trial by jury, the appellant was found guilty of one count of aggravated causing death by dangerous driving, contrary to s 19A(1) of the Criminal Law Consolidation Act 1935 (SA).

On 12 March 2019, while driving on Victor Harbor Road, the appellant fell asleep at the wheel of his vehicle, causing it to drift entirely onto the opposite side of the road and collide head-on with a vehicle driven by the deceased. At the time of the collision, there was present in the appellant’s blood a concentration of 0.08 grams or more of alcohol in 100 millilitres of blood.

The sentencing Judge imposed a sentence of five years imprisonment with a non-parole period fixed at four years, being the mandatory minimum of four-fifths of the head sentence. The sentencing Judge disqualified the appellant from holding or obtaining a driver’s licence for 10 years to commence at the expiration of the non-parole period.

The sentencing Judge declined to order that the sentence be suspended or served on home detention.

The appellant sought permission to appeal against sentence on the following grounds:

1.The sentencing Judge erred in assessing the objective seriousness of the offence, in that her Honour failed to acknowledge that the fatal collision was unlikely to have occurred but for the effect of the appellant’s undiagnosed sleep disorder (Ground 1).

2.The sentencing Judge erred in finding that the appellant made a comment to a witness that he was ‘way over’ (the legal limit to drive) in circumstances where the finding was not open on the evidence (Ground 2).

3.The sentencing Judge erred in having regard to delay and in doing so punished the appellant for his not guilty plea (Ground 3).

4.The sentencing Judge erred in giving insufficient weight to the appellant’s positive personal circumstances, and his undiagnosed sleep disorder, in assessing his mental condition and the existence of a cognitive impairment, as opposed to its relevance being confined to the cause of the collision (Ground 4).

5.The sentence was manifestly excessive (Ground 5).

6.The sentencing Judge erred in failing to order that the sentence be served on home detention (Ground 7).

Held, per the Court granting permission to appeal on Grounds 4, 5 and 7 but dismissing the appeal:

1.The sentencing Judge had proper regard to the undiagnosed sleep disorder in assessing the appellant’s moral culpability and correctly characterised the objective seriousness of the offending.

2.It was…

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Martain v The King [2023] SASCA 104
Case
[2023] SASCA 104
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CaseChat Overview and Summary

The appeal concerned a sentence imposed on the appellant for culpable driving causing death in South Australia. The appellant argued that the sentencing judge erred in assessing the objective seriousness of the offence by failing to give proper regard to his undiagnosed sleep disorder. He contended that this disorder was a material cause of the collision, outside of his control, and therefore reduced his moral culpability.

The legal issue before the court was whether the sentencing judge had adequately considered the impact of the appellant's undiagnosed sleep disorder on the objective seriousness of the offence and his moral culpability. The appellant relied on the principles established in *Spanjol v The Queen*, which allows for a qualification of the proposition that the offender was solely responsible for their driving and that their driving was the sole cause of the resulting injury. Specifically, the appellant argued that an external circumstance, his sleep disorder, was a material cause of the collision, thereby reducing his culpability.

The court considered the principles from *Spanjol v The Queen*, which distinguish between "reduced responsibility" for the manner of driving and "other contributing causes" to the injury. In *Spanjol*, the Victorian Court of Appeal held that a sentencing court may consider if another person or an external circumstance was partly responsible for the manner of driving, or if an additional factor outside the offender's control was a material cause of the injury. The court noted that the language of "complicity" should be avoided, and instead, "reduced responsibility" or "other contributing causes" should be used. The appellant's submission was that his undiagnosed sleep disorder constituted such an external circumstance that was a material cause of the collision, thereby reducing his moral culpability.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Accordingly, the sentencing Judge declined to order that sentence be served on home detention. Ground 1 – evidence of the appellant’s undiagnosed sleep disorder The appellant contended that the sentencing Judge erred in assessing the objective seriousness of the offence by failing to have proper regard to the appellant’s undiagnosed sleep disorder. In making that submission, the appellant relied on the evidence of Dr Chia (and Professor White) that the appellant’s blood alcohol concentration and level of intoxication, of itself, was unlikely to have caused him to fall asleep whilst driving. The appellant submitted that a proper assessment of the nature and gravity of the offending required a careful consideration of the cause of the collision. In that regard, the appellant submitted that his undiagnosed sleep disorder was ‘a material cause’ of the collision that was outside of his control, and therefore, his moral culpability was reduced. In advancing that contention, the appellant relied on Spanjol v The Queen[8] (‘Spanjol’) as discussed and explained by Nicholson AJA in R v Henderson.[9] [8] (2016) 55 VR 350.[9] (2023) 104 MVR 68 at [85]-[90] per Nicholson AJA citing Spanjol v The Queen (2016) 55 VR 350; George v The Queen (2017) 80 MVR 436; Guseli v The Queen (2019) 87 MVR 340; Arpaci v The Queen (2020) 91 MVR 414; Director of Public Prosecutions v Kandel [2021] VCC 2183; Papagelou v The Queen (2022) 99 MVR 232. In Spanjol the Victorian Court of Appeal considered the impact of an external circumstance that was a material cause of a collision on the sentencing process. The Court summarised its conclusions as follows:[10](1) In a case of [culpable driving by gross negligence], the finding of guilt (or plea of guilty) establishes that the offender’s driving was criminally negligent and that the negligent driving caused the victim’s serious injury.(2) The sentencing court will treat as its starting point that the offender was solely responsible for the manner of his driving and that the manner of his driving was the sole cause of the serious injury. But the evidence may support a qualification of one or both of these propositions.(3) As to responsibility for the negligent driving, the offender may be able to establish that some other person (whether or not the victim) and/or some external circumstance was partly responsible for the manner of the driving.(4) As to the causal link with the serious injury, the offender may be able to establish that there was an additional factor, outside the offender’s control, which was also a material cause of the serious injury.(5) The language of ‘complicity’ should be avoided in this context. ‘Complicity’ is a technical term, with a well-defined meaning. It connotes the attribution of criminal responsibility to a co-offender. No such question arises in either of the circumstances under consideration.(6) Instead, the language of ‘reduced responsibility’ should be used to describe the first kind of qualification and the language of ‘other contributing causes’ to describe the second kind of qualification.[10] Spanjol v The Queen (2016) 55 VR 350 at [5] per Maxwell P, Redlich and McLeish JJA.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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