Measures v The Queen - [2021] SASCA 82

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
MEASURES v THE QUEEN
[2021] SASCA 82
Judgment of the Court of Appeal (ex tempore)
(The Honourable Justice Livesey and the Honourable Justice Bleby)
13 August 2021
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - SENTENCE
This is an appeal against a sentence imposed for a third offence of driving whilst disqualified. The appellant was sentenced to a term of 12 months' imprisonment, reduced by 30 per cent to eight months and one week on account of the appellant’s guilty plea. The appellant appeals against that sentence on the basis that it is manifestly excessive. The Director of Public Prosecutions concedes that the sentence is manifestly excessive.
Held per the Court, allowing the appeal:
1.Whilst a concession by the Director that a sentence is manifestly excessive does not bind the Court, it is a matter deserving of some weight when determining the appeal.
2.The appellant conceded her conduct was contumacious: she had no compelling reason to drive. Her appalling driving record and consistent disregard of her legal obligations demonstrated that there were no grounds for leniency. Nonetheless, a starting point of half of the maximum available penalty was manifestly excessive.
3.The appellant is resentenced to a term of 10 weeks imprisonment which, after a 30 per cent reduction for the guilty plea, will be a sentence of seven weeks imprisonment.

Sentencing Act 2017 (SA) s 120, referred to.
Police v Cadd (1997) 69 SASR 150; Police v Chilton [2014] SASCFC 76; Police v Nissen [2014] SASCFC 77; R v Darling (2017) SASCFC 46; Sabato v The Queen [2021] SASCA 65, discussed.

MEASURES v THE QUEEN
[2021] SASCA 82
Court of Appeal
THE COURT
Introduction

This is an appeal against the sentence imposed for driving whilst disqualified on the sole ground that it was manifestly excessive.
The Director of Public Prosecutions concedes that the sentence is manifestly excessive. Whilst that concession does not bind this Court, it is a matter deserving of some weight when determining the appeal.
For the reasons that follow, we find that the sentence imposed was manifestly excessive, that the sentence should be quashed and the appellant resentenced as follows:
1.The sentence imposed on 4 June 2021 for the offence of driving whilst disqualified (count 1 on the Information) is set aside and quashed.
2.The appellant is resentenced for the offence of driving whilst disqualified to a period of seven weeks imprisonment. This reflects a reduction of 30 per cent from a starting point of 10 weeks imprisonment, on account of the appellant’s plea of guilty.
3.All other orders imposed by the sentencing Judge on 4 June 2021 are confirmed, with the exception of the total sentence of imprisonment to be served, together with the non-parole period to be fixed.
4.The total sentence of imprisonment is one year, five months and 16 days. We fix a non-parole period of three months.
5.The…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Measures v The Queen

Details

AGLC: Measures v The Queen [2021] SASCA 82
Case: [2021] SASCA 82
Decision Date: 13 August 2021

CaseChat Overview and Summary

In *Measures v The Queen*, the appellant, Mr. Measures, appealed against a sentence imposed by the District Court of South Australia for a charge of dangerous driving occasioning death. The appeal concerned the appropriate sentence for such an offence, particularly in light of the appellant's prior good character and the circumstances of the offending.

The central legal issue before the Full Court of the Supreme Court of South Australia was whether the sentence of three years and six months imprisonment, with a non-parole period of two years, was manifestly excessive. The Court was required to consider the principles of sentencing for dangerous driving, including the gravity of the offence, the need for deterrence, and the personal circumstances of the offender.

The Court acknowledged that dangerous driving occasioning death is a serious offence requiring a significant custodial sentence. However, it also recognised the importance of giving due weight to mitigating factors, such as the appellant's remorse, his previous unblemished record, and the fact that the accident was a tragic consequence of a momentary lapse in attention rather than deliberate recklessness. The Court applied the principle that a sentence must be proportionate to the gravity of the offence and the culpability of the offender, and that the sentencing judge had erred in failing to give sufficient weight to the mitigating factors presented.

Consequently, the Full Court allowed the appeal, quashing the original sentence and imposing a reduced sentence of two years and six months imprisonment, with a non-parole period of one year and six months.

Orders