R v Akol

[2020] SASCFC 75

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v AKOL

[2020] SASCFC 75

Judgment of The Court of Criminal Appeal

(The Honourable Justice Nicholson, The Honourable Justice Livesey and The Honourable Justice Bleby)

7 August 2020

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN - PRINCIPLES APPLIED BY APPELLATE COURT TO CROWN APPEALS

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

CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - CULPABLE OR DANGEROUS DRIVING CAUSING DEATH OR BODILY HARM

Crown appeal against sentence.

Following a plea of guilty to one count of aggravated cause death by dangerous driving contrary to s 19A(1) of the Criminal Law Consolidation Act 1935 (SA) the respondent was sentenced by the District Court to a term of imprisonment of three years, one month and 25 days, which reflected a 30 per cent discount from four years and six months for his plea of guilty. The offence was a “serious offence against the person”. Accordingly, the sentencing Judge was required to fix a minimum non-parole period of four-fifths of the head sentence, and a non-parole period of two years, six months and eight days was imposed. An order was made that the respondent’s driver’s licence be disqualified for 13 years.

The offending occurred in the early hours of the morning on Australia Day, 26 January 2019. The respondent was aged 19 at the time. He was driving at a speed exceeding 100 kilometres per hour in a 60 kilometre per hour zone, on the wrong side of the road, racing another vehicle. The victim was seated in the front left passenger seat and not wearing a seatbelt. The respondent lost control whilst negotiating a left-hand bend, still on the wrong side of the road. After striking a curb, the vehicle flipped, slid along the footpath for 55 metres before colliding with a retaining wall, fence and then a light pole whereupon it came to rest on its wheels. The victim died at the scene. The respondent’s blood alcohol concentration was estimated to be 0.22 per cent at the time of driving. MDMA was also present in his blood.

The respondent was, at the time, disqualified from holding or obtaining a driver’s licence. Only four months prior to the offending, he had driven on the wrong side of the Northern Expressway and collided head-on with another vehicle. The respondent had at the time returned a blood alcohol reading of 0.14 grams of alcohol per 100 millilitres of blood.

In this Court, the Director seeks permission to appeal the respondent’s sentence on the ground that it is manifestly inadequate.

Held, per Livesey J (Nicholson and Bleby JJ agreeing) granting permission to appeal and allowing the appeal:

1. The sentence imposed was manifestly inadequate. The sentence is so disproportionate to the seriousness of the crime as to require intervention so that appropriate standards of penalty, and public confidence in the administration of justice, can be maintained. As well, deterrence, particularly personal deterrence, warrants intervention.

2. The sentence imposed by the District Court is set aside, and the respondent is resentenced to a period of imprisonment for four years, six months, two weeks and four days, together with a non-parole period of three years, seven months and three weeks backdated to commence on 26 January 2019.

3. The period of disqualification will be increased from 13 years to 15 years, to commence upon the expiry of any earlier period of disqualification.

4. The history of the penalties for the offence of "cause death by dangerous driving" considered.

Acts Republication Act, 1967 (SA) s 8; Criminal Law Act, 1927 (SA); Criminal Law Consolidation Act 1935 (SA) s 5AA, s 14, s 19a, s 19A; Criminal Law Consolidation Act Amendment Act (No 2) 1983 (SA); Criminal Law Consolidation Act Amendment Act (No 2) 1986 (SA) s 4; Decimal Currency Act 1965 (SA); Sentencing Act 2017 (SA) s 3, s 9, s 10, s 40, s 47, s 48, s 96 ; Statutes Amendment (Vehicle and Vessel Offences) Act 2005 (SA) s 9; Statutes Amendment (Dangerous Driving) Act 2013 (SA) s 4, referred to.
R v Dundovic (2008) 101 SASR 32; R v Edwards [2016] SASCFC 145; R v Hicks (1987) 45 SASR 270; R v Hietanen (1989) 51 SASR 510; R v Johnston (1985) 38 SASR 582; R v Payne (2004) 89 SASR 49; R v Wooldridge (2015) 123 SASR 422, discussed.
Azzopardi v The Queen (2011) 35 VR 43; Barbaro v The Queen (2014) 253 CLR 58; Baumer v The Queen (1988) 166 CLR 51; Everett v The Queen (1994) 181 CLR 295; Griffiths v The Queen (1977) 137 CLR 293; Hili v The Queen (2010) 242 CLR 520; R v Boswell (1984) 79 Cr App R 277; R v Cavanagh-Novelli [2014] NTCCA 21; R v Ceruto (2014) 66 MVR 94; R v Chalmers (2012) 115 SASR 150; R v Coventry (1938) 59 CLR 633; R v McGaffin (2010) 206 A Crim R 188; R v Nemer (2003) 87 SASR 168; R v Osenkowski (1982) 30 SASR 212; R v Singh (2011) 111 SASR 219; R v Watkins (2013) 118 SASR 342; Ramsay v The Queen [2020] SASCFC 4, considered.

R v AKOL
[2020] SASCFC 75

Court of Criminal Appeal:  Nicholson, Livesey and Bleby JJ

1. NICHOLSON J:  For the reasons given by Livesey J, I would grant permission to appeal and would determine the appeal in the manner proposed by his Honour.

   LIVESEY J:

   Introduction

2. This is a Crown appeal against sentence following a plea of guilty to one count of aggravated cause death by dangerous driving contrary to s 19A(1) of the Criminal Law Consolidation Act 1935 (SA).

3. On 5 February 2020 the respondent, Akol Agiu Akol, was sentenced to a term of imprisonment of three years, one month and 25 days, which reflected a 30 per cent discount from four years and six months for his plea of guilty.[1]  Because the offence was a “serious offence against the person” the sentencing Judge was required to fix a non-parole period of at least four-fifths of the head sentence.[2]  A non-parole period of two years, six months and eight days was fixed. An order was made that the respondent’s driver’s licence be disqualified for 13 years.[3]

   [1]    Sentencing Act2017 (SA), s 40(3)(b).

   [2] Unless there were “special reasons” to fix a shorter non-parole period, s 47 of the Sentencing Act 2017 (SA). The sentencing Judge found that there were no special reasons, s 48(2)(b). There has been no challenge to that finding.

   [3] Pursuant to s 19A of the Criminal Law Consolidation Act 1935 (SA).

4. The offending occurred at around 12:37 am on the morning of Australia Day, Saturday, 26 January 2019. The respondent was driving at a speed exceeding 100 kilometres per hour in a 60 kilometre per hour zone, on the wrong side of the road, racing another vehicle. The respondent was aged 19 at the time.  The victim, Ms Bor Mabil, was at the time the respondent’s girlfriend, and was also 19 years old.  She was seated in the front left passenger seat and not wearing a seatbelt. The respondent lost control whilst negotiating a left-hand bend, still on the wrong side of the road.  After striking the curb on the wrong side of the road, the vehicle flipped onto the driver’s side, and slid along the footpath for around 55 metres before colliding with a retaining wall, a fence and then a light pole, whereupon it came to rest on its wheels.

5. Ms Mabil sustained an open skull fracture and other injuries. She died at the scene. 

6. A sample of the respondent’s blood was collected at 2 am on 26 January 2019. Analysis demonstrated the presence of alcohol at a concentration of “not less than” 0.177 per cent. Professor Jason White, an expert pharmacologist, later estimated that the blood alcohol at the time of driving was 0.22 per cent.  MDMA was also detected in the respondent’s blood.[4]

   [4]    MDMA is methylenedioxymethamphetamine. The sentencing Judge accepted the opinion of Professor White that the MDMA was unlikely to have had other than “relatively mild” effects, and the predominant adverse effects were caused by the very high concentration of alcohol.

7. At the time, the respondent was disqualified from holding or obtaining a driver’s licence. The fact of his disqualification was a circumstance of aggravation,[5] which increased the maximum penalty from imprisonment for 15 years to imprisonment for life, together with disqualification from holding or obtaining a driver’s licence for 10 years or such longer period as the court orders.[6]

   [5] The precise term pleaded was “disqualified … or … suspended by notice given under the Road Traffic Act 1961” and it appears that the respondent was subject to what was described in November 2018 as an “Immediate Loss of Licence”.

   [6] See ss 19A(1) and 5AA of the Criminal Law Consolidation Act1935 (SA). The other aggravating features that formed part of the offence details provided in the Information were that the offence occurred whilst engaged in a street race, that his blood alcohol concentration was 0.08 grams or more in 100 millilitres of blood and that there was MDMA in his blood.

8. The respondent was already disqualified from driving because, only four months earlier, on 29 September 2018 he had driven onto the wrong side of the Northern Expressway at Waterloo Corner and collided head-on with another vehicle.  The other driver was injured and his vehicle was destroyed by fire at the scene.  The respondent then returned a blood alcohol reading of 0.14 grams of alcohol per 100 millilitres of blood. 

9. Two months before the subject offending, on 26 November 2018, a police officer met with the respondent, gave him a notice and told him that he was disqualified from driving. The respondent signed an acknowledgment that he had received the notice.[7] 

   [7]    The respondent later pleaded guilty and was convicted and sentenced in the Elizabeth Magistrates Court on 5 March 2019. The respondent was fined and received two licence disqualifications of three months (drive with excess blood alcohol) and 12 months (drive in reckless and dangerous manner), both commencing that day.

   Disposition of the appeal

10. For the reasons that follow, the sentence was manifestly inadequate. The sentence is so disproportionate to the seriousness of the crime as to require intervention so that appropriate standards of penalty, and public confidence in the administration of justice, can be maintained.[8]  As well, deterrence, particularly personal deterrence, warrants intervention.[9] Permission to appeal should be granted and the appeal allowed. 

    [8]    Griffiths v The Queen (1977) 137 CLR 293; Everett v The Queen (1994) 181 CLR 295, 299-300 (Brennan, Deane, Dawson and Gaudron JJ); R v Osenkowski (1982) 30 SASR 212, 212-213 (King CJ) and R v Nemer (2003) 87 SASR 168, [24] (Doyle CJ, with whom Prior and Vanstone JJ agreed).

    [9]    These issues are also addressed under the heading, “The exercise of discretion”.

11. The sentence imposed on resentencing will be imprisonment for six years and six months, reduced by 30 per cent on account of the guilty plea to four years, six months, two weeks and four days, together with a non-parole period of three years, seven months and three weeks,[10] backdated to commence on 26 January 2019 when the respondent was first taken into custody. 

    [10] This is four-fifths of the head sentence which is the mandatory minimum non-parole period prescribed for a serious offence against the person, see Sentencing Act 2017 (SA), s 47(5)(d).

12. The period of disqualification will be increased from 13 years to 15 years, to commence upon the expiry of any earlier period of disqualification.[11]

    [11] Which appears to be from 5 March 2020, given the 12-month disqualification from 5 March 2019 which will end on 4 March 2020.

    Circumstances of the offending

13. The fatal collision occurred on Andrews Road at Andrews Farm in a new housing development.

14. The respondent had earlier been drinking with friends at a house in Andrews Farm when he received a phone call from his girlfriend. She asked that he pick her up from her work. He was seen to be obviously affected by alcohol. The respondent had the use of his girlfriend’s Audi A3 motor vehicle. He picked her up from work and drove her back to the house.

15. A “group decision” was then taken to drive to a local park, which was within “walking distance”.

16. There were two vehicles involved.

17. The respondent was driving the Audi A3 with four passengers.[12] The other vehicle was a Toyota Avalon being driven by Ms Alakiir Deng with three passengers.[13]

    [12] The deceased, Agum Deng, Athok Yuot and Achol Kuol.

    [13] Adal Marlow, Akoi Atem and Yasine Ramadhani.

18. The respondent later said that he agreed to drive notwithstanding that he was disqualified from driving because he “felt pressured to do so”. 

19. The Audi was soon overtaken by the Toyota driven at high speed. The respondent was then “incited” by passengers, including his girlfriend, “to not allow the … female driver to overtake”.  Some passengers overheard the deceased say to the respondent “are you going to let a girl beat you?”.  The race followed.

20. Occupants of the Audi later told police that they screamed at the respondent, asking him to slow and stop.

21. Before the motor accident, and whilst the Audi was on the incorrect side of the road, the respondent had to take evasive action because of an oncoming vehicle.  However, the race soon continued and the respondent returned to the wrong side of the road.

22. The loss of control of the Audi was preceded by it commencing to yaw at a speed exceeding 100 kilometres per hour as it approached the left-hand bend in a suburban area. The Toyota Avalon also failed to navigate the same bend and also made contact with the curb on the wrong side of the roadway.  However, unlike the Audi, the Toyota was brought under control and parked. The Toyota and the Audi did not collide.

23. The movements of the vehicles immediately before the accident were captured on a CCTV system installed at a nearby house.

    Circumstances of the respondent

24. At the time of sentencing the respondent was 20 years of age, having been born in the Kakuma Refugee Camp in Kenya.  He is the eldest of a family of seven children.  His childhood was spent in Nairobi before his family migrated to Australia as humanitarian refugees on 22 September 2006. 

25. The respondent initially lived with his aunt and uncle at Blair Athol before moving to Kilburn.  His four younger siblings were born in South Australia.  The sentencing Judge accepted that the respondent had considerable support from his family, including extended family, as well as from members of the community prepared to provide guidance and counselling. 

26. The respondent attended Pennington Junior Primary School before attending Elizabeth North Primary School.  He then spent around a decade at Thomas More College.  He completed his schooling at St Columba College, completing year 12.  He enjoyed playing sport, had a number of friends and was ranked in the middle of his class academically. 

27. At the age of 18 the respondent lived briefly in Victoria where he completed a security officer and first aid course.  On his return to Adelaide he obtained employment as a night stacker at a supermarket, three nights a week.  He was living with his parents at the time of the motor accident.

28. The respondent commenced consuming alcohol at 18 years of age.  At the same time he commenced smoking cannabis.

29. A number of people wrote to the sentencing Judge expressing support and attesting to the respondent’s good character.

30. The sentencing Judge acknowledged the “particular relevance” of the respondent’s antecedent criminal history.  Referring to the motor accident on the Northern Expressway at Waterloo Corner on 29 September 2018, the sentencing Judge observed that the driver of the other vehicle was rendered unconscious and suffered minor injuries.  Whilst the respondent could not be punished for this earlier offending for which he had already been sentenced, the fact of this earlier motor accident significantly negated the extent to which the respondent could expect leniency.[14] 

    [14] R v McInerney (1986) 42 SASR 111, 113 (King CJ) and 124 (Cox J).

31. The sentencing Judge also noted an earlier estreatment of bail found proved on 27 August 2018 for which the respondent was fined $500.  On 11 September 2018, the respondent was discharged without penalty for one count of “damage building or motor vehicle (not graffiti or unknown)”. 

32. The sentencing Judge appeared to accept statements made in a psychologist’s report that the respondent had problems with impulse control and a tendency to be influenced by female friends “in an attempt to impress them”. The respondent was described as having “underdeveloped stress management skills”.

33. After the subject offending the respondent had required antidepressant medication during his incarceration.  The sentencing Judge accepted that the respondent was genuinely contrite and remorseful and had written a “very sincere … letter of apology” that he read aloud to the Court. Among other things, Mr Akol wrote that no words could “show or bring any slither of justification for [his] actions”. He said that he would accept full responsibility for his actions and that he felt deep shame and embarrassment for causing Ms Mabil’s family to suffer such grief.

    The reasons of the sentencing Judge

34. In reasons delivered on 5 February 2020 the sentencing Judge outlined the circumstances of the plea, the offending and the offender.

35. The sentencing Judge referred to the respondent having returned a blood alcohol concentration reading of not less than 0.177 per cent. Later in his reasons the sentencing Judge referred to Professor White’s opinion that a blood alcohol concentration of not less than 0.17 per cent “would have had a very pronounced effect on [the respondent’s] ability and manner of driving”.

36. These references disclose an important error.  The reading of 0.177 per cent is a reference to that which was detected in the respondent’s blood at the time a sample of his blood was taken following the motor accident.  In submissions to the sentencing Judge the prosecutor described the respondent’s blood alcohol as being 0.22 per cent at the time of driving. This was based on what is sometimes described as a “count back” calculation, designed to demonstrate the likely blood alcohol content earlier in time when the relevant driving took place.

37. As Professor White’s affidavit explained, the “count back” he undertook was based on “the rates of elimination of alcohol from the body” over time. Whilst acknowledging that several factors can influence the elimination rate for any particular individual, with the result that the likely blood alcohol concentration at the time of the motor accident can only be estimated, Professor White’s best estimate of the respondent’s blood alcohol concentration at the time of the accident was 0.22 per cent. This was never challenged.  As Professor White explained:

    A blood alcohol concentration around 0.22% will produce marked impairment of concentration and attention; in particular, an impaired ability to maintain concentration or attention for a prolonged period of time and a reduced ability to attend to multiple events in the environment. While driving, Mr Akol would have failed to maintain full concentration on the road.

    There is also pronounced impairment of thinking, decision making and memory at this blood alcohol concentration. The consequences for driving include an increased probability of the person making decisions that would be regarded as inappropriate when sober as well as more areas of in judgement and decision making. A range of driving errors, including errors in vehicle operation such as steering and braking errors and failing to respond to road signs, are observed in drivers at blood alcohol concentrations from about 0.08% and above. These would be much more common at blood alcohol concentration around 0.22%.

1. Professor White also said that increased blood alcohol concentrations are associated with evidence of disinhibition and behaviours best described as impulsive, risky or reckless:

   In this instance Mr Akol was driving on the wrong side of the road and this may have been a manifestation of such alcohol-induced risk taking.

2. Professor White explained that an alcohol affected driver has a diminished ability to react appropriately in difficult situations, such as those that precede a potential accident:

   This is due, in part, to alcohol-induced slowing of reaction time which is particularly pronounced in situations requiring complex judgments. In addition, the affected driver will have impaired decision making, as noted above, and is more likely to make an inappropriate decision in the limited time available prior to an accident.

3. The sentencing Judge recognised that there was no evidence in rebuttal to contest the opinions of Professor White, and so he sentenced the respondent on the basis that his driving was reckless and dangerous “due, in part, to your intoxication”.  With respect, the sentencing Judge should also have sentenced the respondent on the basis that his likely blood alcohol concentration at the time of driving was higher than 0.177 per cent, and most likely 0.22 per cent. The difference between these readings is both material and relevant.

4. The sentencing Judge accepted that the offending had caused the victim’s family and friends “immeasurable personal trauma” and he acknowledged that the victim’s mother had told him, through her victim impact statement, that her life and the lives of her children had been “changed forever”.  An additional five victim impact statements were before the sentencing Judge. Ms Mabil came from a large extended family who suffered deeply and grieve every day.

5. The sentencing Judge then explained:

   Your offending is extremely serious. Whilst there is no doubt that the death of the deceased has had a significant impact on you, your driving that morning was reckless and dangerous, which caused the vehicle roll-over and the resulting fatality. It is quite remarkable that no other person was seriously injured.

   As well as personal deterrence, there is also a very profound need to deter others from driving in such a manner and from driving under the influence of alcohol or drugs. These are significant considerations when determining the appropriate sentence that I am to impose. These matters have weighed heavily in my considerations. Your counsel submitted that I should give you a merciful head sentence, taking into account your youth and the time you have already spent in custody …

   I am bound by the decision in R v Singh [2011] SASCFC 128 where his Honour Justice Sulan held that sentencing, particularly in the case of relatively young offenders, requires that consideration be given to their prospects of rehabilitation. Whilst this consideration should not detract from the need for general deterrence and the punitive aspects of punishment, there must still be a balance.

6. With respect, it is a little difficult to understand what the sentencing Judge meant when he said that he was “bound by the decision in R v Singh”.[15]  In that case Sulan J (with whom David and Peek JJ agreed) explained what can only be described as the ordinary approach to the sentencing of young offenders:[16]

   The imposition of a term of imprisonment upon a young person has a dramatic effect upon that person’s life. That is so, particularly in circumstances where the person has an impeccable record and has been a productive member of the community. It is also important that the courts recognise that, where the prospects of a person’s rehabilitation are high, any sentence should reflect the court’s recognition of that fact. Sentencing, particularly in the case of relatively young offenders, requires that consideration be given to their prospects of rehabilitation. That, of course, does not detract from the need for general deterrence and the punitive aspects of punishment. Nevertheless, there must be a balance.

   [15] R v Singh (2011) 111 SASR 219.

   [16] R v Singh (2011) 111 SASR 219, [17].

7. Nothing in these remarks constrains the approach of a sentencing court to favour rehabilitation over deterrence and punishment in a case of a very serious aggravated cause death by dangerous driving committed by a young offender, very soon after another serious motor accident involving bad driving and alcohol.

8. The sentencing Judge then referred to R v Payne[17] and Ramsay v The Queen[18] before emphasising:

   … as in every other case of this tragic type … you are being punished for your dangerous manner of driving that caused the death of the deceased. That is the principle that informs my decision about condign punishment here in light of all of the other considerations to which I have referred.

   [17] R v Payne (2004) 89 SASR 49.

   [18] Ramsay v The Queen [2020] SASCFC 4.

9. The emphasis given to the “dangerous manner of driving that caused the death” is probably a reference to the reasons of this Court in R v Wooldridge where the following was said:[19]

   Also of importance is the fact that the focus of this retribution or denunciation is “the conduct in question,”[20] that is, the accused’s conduct by which he or she has committed the offence. Of course, in the case of the dangerous driving offences, the consequences of that conduct (the taking of life or causing of harm) underscores or emphasises the seriousness of the driver’s conduct when considered in its full context. It is the act of killing or harming a victim by the conduct in question, and with the state of mind (in this case, unintentionally) in question, that is to be the subject of, or focus of, denunciation or retribution. The focus is the act of dangerous driving concerned and this is the focus because the driving has resulted in, albeit unintentionally, death of, or harm to, another person. However, the focus of denunciation or retribution is not the killing or harming of another person simpliciter. The point is a subtle but an important one. As King CJ put it, rather more succinctly, in Johnston,[21] “consequences of conduct are important in the criminal law but they are not the determinant of the moral turpitude involved in the conduct”.

   (Emphasis in original.)

   [19] R v Wooldridge (2015) 123 SASR 422, [29] (Gray ACJ, Peek and Nicholson JJ).

   [20] Being a reference to observations made by Doyle CJ in R v Nemer (2003) 87 SASR 168, [4]-[7] (with whom Prior and Vanstone JJ agreed).

   [21] R v Johnston (1985) 38 SASR 582, 585 (King CJ).

10. Whilst it is true that a defendant convicted of cause death by dangerous driving is not punished for intentionally killing another, and that the focus of denunciation or retribution “is not the killing … simpliciter”, it is quite wrong to refrain from sentencing other than on the basis that the dangerous driving has caused death.  That, indeed, is the very point of the offence.

11. As King CJ explained in R v Hietanen, the consequences of a defendant’s conduct “are always a factor in assessing the gravity of crime”,[22] because in cases of cause death by dangerous driving it is “the consequences which convert the same conduct from a summary offence to an indicatable crime and are therefore the principal measure of the seriousness of that crime”.[23]

    [22] R v Hietanen (1989) 51 SASR 510, 517 (King CJ).

    [23] R v Hietanen (1989) 51 SASR 510, 517 (King CJ).

12. In R v Edwards this Court recognised that the “essential point” made by King CJ in R v Johnston was that the “consequence of the offending does not ordinarily reflect the moral blameworthiness of the offender”.[24] Nonetheless, the same Court warned that King CJ was “not saying that the sentencing discretion is confined to imposing a sentence proportionate to the moral blameworthiness of the accused”.[25]

    [24] R v Edwards [2016] SASCFC 145, [31] (Blue, Lovell and Hinton JJ).

    [25] R v Edwards [2016] SASCFC 145 (Blue, Lovell and Hinton JJ).

13. In a pithy illustration of the way in which the consequences of offending must always be brought to account, in R v Chalmers Kourakis CJ explained that the sentence imposed on an offender who intends to cause a black eye, and does so, will invariably be less than the sentence imposed on the offender with the same intention who unintentionally causes serious brain injury.[26]

    [26] R v Chalmers (2012) 115 SASR 150, [15] (Kourakis CJ).

14. Whilst a minimum non-parole period of four-fifths of the head sentence applied in this case,[27] the offending did not involve a “prescribed designated offence”.[28] Accordingly, the sentencing Judge was not precluded from suspending the sentence or ordering home detention. However, and as with the rejection of the existence of “special reasons”,[29] the sentencing Judge correctly held that neither the primary nor secondary goals stipulated by the Sentencing Act 2017 (SA) permitted other than an immediate term of imprisonment.

    [27] Sentencing Act 2017 (SA), ss 47(5)(d) and 47(12)(e).

    [28] See Sentencing Act 2017 (SA), s 96(9).

    [29] Sentencing Act 2017 (SA), ss 48(2)(b) and 48(3).

15. Whilst there can be no criticism of the sentencing Judge’s references to R v Singh or to R v Wooldridge, it is difficult to avoid the conclusion that the reference to the wrong blood alcohol concentration and the respondent’s youth resulted in an approach to punishment that was less onerous than the circumstances demanded.

    Developments concerning “cause death by dangerous driving”

16. Set out below is a table summarising the penalties which have applied to the offence which has come to be known as “cause death by dangerous driving” since 1927 (penalties emboldened):

Principal or amending Act	Date	“Cause death by dangerous driving” provision
Criminal Law Act, 1927 (SA)	30 November 1927 (as enacted)	Section 3(1) of the Criminal Law Act, 1927 (SA): 3. (1) Any person who— (a)    drives a motor vehicle in a culpably negligent manner, or recklessly, or at a speed, or in a manner, which is dangerous to the public; and (b)   by such negligence, recklessness, or other conduct, causes the death of any person, shall be guilty of a misdemeanour, and, on conviction thereof, shall be liable to imprisonment for any term not exceeding seven years with hard labour, or to a fine not exceeding Two Hundred and Fifty Pounds, or to both such imprisonment and fine as aforesaid.
Criminal Law Consolidation Act 1935 (SA)	2 January 1935 (as enacted)	Section 14(1) of the Criminal Law Consolidation Act 1935 (SA): 14(1) Any person who— (c)    drives a motor vehicle in a culpably negligent manner, or recklessly, or at a speed, or in a manner, which is dangerous to the public; and (d)   by such negligence, recklessness, or other conduct, causes the death of any person, shall be guilty of a misdemeanour, and liable to be imprisoned for any term not exceeding seven years, or to a fine not exceeding two hundred and fifty pounds, or to both such imprisonment and fine as aforesaid.
Criminal Law Consolidation Act Amendment Act (No 2) 1983 (SA)	Amendments came into force on 16 June 1983	Section 14(1) of the Criminal Law Consolidation Act 1935 (SA): 14(1) Any person who— (a)     drives a motor vehicle in a culpably negligent manner, or recklessly, or at a speed, or in a manner, which is dangerous to the public; and (b)     by such negligence, recklessness, or other conduct, causes the death of any person, shall be guilty of a misdemeanour, and liable to be imprisoned for any term not exceeding seven years.
Criminal Law Consolidation Act Amendment Act (No 2) 1986 (SA), s 4	Amendments came into force on 18 December 1986	Section 19a of the Criminal Law Consolidation Act 1935 (SA): (1)     A person who— (a)     drives a motor vehicle in a culpably negligent manner, recklessly, or at a speed or in a manger dangerous to the public; and (b)     by that culpable negligence, recklessness or other conduct, causes the death of another, is guilty of an indictable offence. (2)  The penalty for an offence against      subsection (1) is as follows:               (a)     for a first offence—imprisonment for a term not exceeding 10 years and disqualification from holding or obtaining a driver’s licence for 5 years or such longer period as the court orders; (b)     for a subsequent offence—imprisonment for a term not exceeding 15 years and disqualification from holding or obtaining a driver’s licence for 10 years or such longer period as the court orders.
Statutes Amendment (Vehicle and Vessel Offences) Act 2005 (SA), s 9	Relevant amendments came into force on 30 July 2006	Section 19A of the Criminal Law Consolidation Act 1935 (SA): (1)     A person who— (a)     drives a vehicle or operates a vessel in a culpably negligent manner, recklessly, or at a speed or in a manner dangerous to the public; and (b)     by that culpable negligence, recklessness or other conduct, causes the death of another, is guilty of an indictable offence. Maximum penalty: (a)     where a motor vehicle or motor vessel was used in the commission of the offence— (i)    for a first offence that is a basic offence—imprisonment for 15 years and, in the case of an offence involving the use of a motor vehicle, disqualification from holding or obtaining a driver’s licence for 10 years or such longer period as the court orders; (ii)   for a first offence that is an aggravated offence or for any subsequent offence—imprisonment for life and, in the case of an offence involving the use of a motor vehicle, disqualification from holding or obtaining a driver’s licence for 10 years or such longer period as the court orders; (b)    where neither a motor vehicle nor motor vessel was used in the commission of the offence—imprisonment for 7 years.

1. The offence of “cause death by dangerous driving”, or in the words of the old language, “cause death by negligent driving”, was first introduced as a misdemeanour in 1927 as part of s 3 of the Criminal Law Act, 1927 (SA). It was introduced because of a reluctance in juries to convict drivers for manslaughter which carried with it a maximum penalty of life imprisonment. As the Honourable H Homburg, the then Attorney-General, explained in the second reading speech of the Bill:[30]

   … since the year 1919 some 27 persons have been charged with manslaughter caused by death from motors in this State, and of that number only three have been convicted. … there must be something radically wrong with our system of administering justice when we hear evidence of recklessness in the death of so many persons, and only three convictions for manslaughter. … Either drunkenness or downright recklessness is invariably an element in the offence, and although cases have to the satisfaction of the average mind been proved up to the hilt, yet there has lingered in the minds of the jury some doubt which persuaded them to resolve it in favour of the accused. Why? … There must be some explanation for this, and I think it is due to repugnance to the word manslaughter. The mere suggestion of slaughter is enough to act as a deterrent, and when the verdict of guilty carried with it punishment of imprisonment for life one can well understand that a jury will hesitate long and often before condemning the accused.

   [30] South Australia, Parliamentary Debates, House of Assembly, 6 October 1927, 953-954.

2. Parliament sought to rectify this mischief by introducing a new, more precise offence of driving in a negligent, reckless or dangerous manner that caused the death of another person, which carried with it a maximum penalty of seven years’ imprisonment or a fine not exceeding £250, or both.[31]

   [31] Criminal Law Act, 1927 (SA), s 3(1).

3. When the Criminal Law Consolidation Act 1935 (SA) came into force in January 1935, s 3 of the Criminal Law Act, 1927 (SA) was re-enacted as s 14 of the Criminal Law Consolidation Act 1935 (SA) in terms not materially different.

4. It was not until 1983 that the Parliament removed the penalty of a fine in s 14 as it was thought to bear “no realistic relationship to the term of imprisonment”.[32]

   [32] South Australia, Parliamentary Debates, Legislative Council, 20 April 1983, 905 (the Honourable C J Sumner). By this stage the reference to the maximum penalty of a fine of £250 had changed to $500 as a consequence of (the now repealed) s 8(1) of the Acts Republication Act, 1967 (SA) and the Decimal Currency Act 1965 (SA).

5. The case of R v Johnston was then decided in September 1985.[33]  R v Johnston is discussed below.  It is arguable that the response from the Parliament to R v Johnston, and perhaps other decisions, was swift, because the following year in August 1986 the offence was reclassified as an indictable offence and the maximum penalty raised to imprisonment for 10 years for a first offence and 15 years for a subsequent offence.  The then Attorney-General, the Honourable C J Sumner AM, explained the hardening in community attitudes to this kind of offending in his second reading speech:[34]

   This Bill proposes an amendment to the Criminal Law Consolidation Act relating to causing death by dangerous driving and causing bodily harm by dangerous driving. There has been considerable disquiet recently concerning death and injury on the State’s roads. …

   It would appear that community attitudes are now tending to be less accepting of drink drivers …

   The Government has been concerned for some time at the leniency shown by the courts … [and] now considers that the only alternative is for Parliament to increase the maximum penalties and in doing so give a signal to the courts that the present level of sentences is inadequate. …

   The increased penalties proposed in the Bill apply only to offences that cause death or cause bodily harm involving the dangerous driving of a motor vehicle. The increases are substantial, with the introduction of higher penalties for both first and subsequent offences. …

   In a recent appeal in the Court of Criminal Appeal, the Chief Justice warned against a knee-jerk reaction to the road toll.  However, the Government is of the view that the community as a whole is dissatisfied with the level of sentences, especially in the ‘cause death’ cases. Rather than a knee-jerk reaction, the Government sees the amendments as a measure calculated to act as a deterrent and to provide a more realistic punishment of offenders. …

   …

   Further, it must be borne in mind that driving is not a right but a privilege. People who abuse the privilege must learn that such behaviour is unacceptable to the community.

   [33] R v Johnston (1985) 38 SASR 582.

   [34] South Australia, Parliamentary Debates, Legislative Council, 13 August 1986, 278.

6. Soon after the decision in R v Payne[35] (discussed below) in 2005 Parliament introduced a Bill to amend s 19A of the Criminal Law Consolidation Act 1935 (SA) with effect from 30 July 2006 to create the category of an “aggravated offence” which attracts life imprisonment.[36] What is meant by an “aggravated offence” is defined by s 5AA.

   [35] R v Payne (2004) 89 SASR 49.

   [36] In 26 January 2014 the words “the public” in section 19A(1)(a) were substituted by the words “any person”, see Statutes Amendment (Dangerous Driving) Act 2013 (SA), s 4.

7. Again, the second reading speech reflects the view that community attitudes were thought to have hardened even further, fuelled in part by debate over a particular motor accident that culminated in the Kapunda Road Royal Commission.[37] Paradoxically, given the experience in the 1920s, it was explained that the increased penalty for the aggravated form of the offence was intended to place it on a par with cases of manslaughter:[38]

   [37] The Kapunda Road Royal Commission inquired into the circumstances surrounding the “hit and run” death of Ian Humphrey and the trial and conviction of Eugene McGee. The commission commenced on 12 May 2005 and the report by Greg James QC was delivered on 15 July 2005. The motor accident had occurred on 30 November 2003. On 15 April 2005, following a trial in the District Court of South Australia, Mr McGee was acquitted by a jury of “causing death by driving in a manner dangerous to the public”, but convicted of the alternative offence of “driving without due care”, having previously pleaded guilty to the charge of “failing to stop and give assistance”. On 28 April 2005 he was sentenced by the District Court.

   [38] South Australia, Parliamentary Debates, Legislative Council, 24 November 2005, 3213.

   The Bill deals with a matter of great concern to the Government and the public. The recent outcry about penalties imposed in prominent road accident cases, and one in particular, has highlighted the need for changes to the laws dealing with causing death by dangerous driving and leaving the scene of an accident.

   … We must deter people who think about shirking their responsibilities.

   …

   It creates a new offence of leaving an accident scene after causing death or physical harm by careless use of a vehicle or vessel, restructures the offence of causing death by dangerous driving …

   …

   The Bill also carries out some of the recommendations of the Kapunda Road Royal Commission. …

   The amendment restructures the offence in section 19A so that there is a basic offence and an aggravated offence. It adopts the same structure and terminology as is used in the Statutes Amendment and Repeal (Aggravated Offences) Bill …

   …

   The Bill provides that the maximum penalty for a first basic offence of cause death will be 15 years imprisonment with licence disqualification for 10 years. The maximum penalty for any subsequent offence, or an aggravated first offence, will be life imprisonment with licence disqualification for 10 years. This is consistent with the recommendation of the Kapunda Road Royal Commission with the penalty for driving in a manner dangerous causing death should be the same as the penalty for manslaughter. Life imprisonment is the maximum penalty for manslaughter.

1. R v Dundovic appears to be the first significant case decided after the 2006 amendments.[39] It too is discussed below.  The appropriate response to an increased maximum penalty was explained by Doyle CJ in R v Dundovic in the following way:[40]

   The fact that the maximum punishment for these offences is life imprisonment demonstrates the seriousness with which Parliament views offences against s 19A. This is something that must be acknowledged by sentencing judges. It does not follow that sentences for all offences against s 19A, or even for all offences attracting the maximum punishment, must increase: see R v Hietanen (1989) 51 SASR 510 at 516, King CJ. But due regard must be paid to the seriousness of an offence, having regard to the maximum punishment stipulated by Parliament.

   [39] R v Dundovic (2008) 101 SASR 32.

   [40] R v Dundovic (2008) 101 SASR 32, [26] (Doyle CJ, with whom Bleby and Anderson JJ agreed).

2. The need for a sentencing court to consider previous sentences, and the limitations necessarily associated with any historical survey, are matters that have been recognised in many cases.[41]  For example, in Barbaro v The Queen these issues were explained:[42]

   As the plurality pointed out[43] in Hili v The Queen, in seeking consistency sentencing judges must have regard to what has been done in other cases. Those other cases may well establish a range of sentences which have been imposed. But that history does not establish that the sentences which have been imposed mark the outer bounds of the permissible discretion. The history stands as a yardstick against which to examine a proposed sentence. What is important is the unifying principles which those sentences both reveal and reflect.[44] And as each of Buchanan JA and Kellam JA rightly observed[45] in MacNeil-Brown, the synthesis of the “raw material” which must be considered on sentencing, including material like sentencing statistics and information about the sentences imposed in comparable cases, is the task of the sentencing judge, not counsel.

   (Citations in original.)

   [41] See Barbaro v The Queen (2014) 253 CLR 58, [41] (French CJ, Hayne, Kiefel and Bell JJ) and Hili v The Queen (2010) 242 CLR 520, [48]-[49] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).

   [42]  Barbaro v The Queen (2014) 253 CLR 58, [41] (French CJ, Hayne, Kiefel and Bell JJ).

   [43] Hili v The Queen (2010) 242 CLR 520, [53]-[54] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).

   [44] Cf Wong v The Queen (2001) 207 CLR 584, [59] (Gaudron, Gummow and Hayne JJ); Hili v The Queen (2010) 242 CLR 520, [54] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ) and Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1, [304] (Simpson J).

   [45] R v MacNeil-Brown (2008) 20 VR 677, [130] (Buchanan JA) and [147] (Kellam JA).

3. Nonetheless, previous decisions concerning sentencing for the offence of cause death by dangerous driving are of some relevance because they demonstrate that, over time, community expectations and attitudes to the offence have hardened markedly. 

4. As well, they show that in 2006 the increased maximum penalty to imprisonment for life for the aggravated offence represented a significant change in Parliament’s view about the seriousness of this type of offending, particularly where it involves a combination of any or all of speed, drugs and alcohol. 

5. The review of previous decisions that follows also demonstrates the wide variability in the nature and seriousness of this kind of offending.  Whereas some cases demonstrate that the offending involves what might (apart from the outcome of a death) otherwise be a mere summary offence, others involve wrongdoing and recklessness so serious that they could properly be described as cases involving the indictable offence of manslaughter.[46]

   [46] R v Hietanen (1989) 51 SASR 510, 517 (King CJ). In R v Coventry (1938) 59 CLR 633 Latham CJ, Rich, Dixon and McTiernan JJ considered s 3(1)(a) of the Criminal Law Act, 1927 (SA), reproduced earlier in these reasons, and held that indifference (or recklessness) to consequences was not an essential element either of driving in a culpbably negligent manner, or of driving at a speed which is dangerous to the public, or in a manner which is dangerous to the public. Nevertheless, apparent indifference to consequences, or recklessness, will comprise an aggravating feature which is relevant to sentencing.

6. R v Johnston concerned a 1985 appeal by the Attorney-General against a sentence imposed in the District Court for causing death by dangerous driving.[47] Having pleaded guilty, Mr Johnston was sentenced to imprisonment for two years with a non-parole period of one year. He was also disqualified from holding or obtaining a driver’s licence for three years. At the time of the offence Mr Johnston was driving a defective Holden Torana owned by a friend.

   [47] R v Johnston (1985) 38 SASR 582.

7. After drinking at several hotels, at about 12:45 am Mr Johnston drove south along Main North Road at Smithfield with another young man as his passenger. He was travelling at 145 kilometres per hour in a 110 kilometre per hour speed zone. He lost control of the car at an S-bend, it left the road and collided with trees and posts in the median strip. The passenger was killed and Mr Johnston sustained considerable injuries. Mr Johnston’s blood alcohol concentration at the time of the accident was likely to be at least 0.21 per cent. As King CJ explained:[48]

   This is clearly a bad instance of the crime of causing death by dangerous driving. The appellant became intoxicated as a result of a deliberate course of drinking extending over a period of some hours. Deprived of inhibitions, control and judgment by his intoxication, he drove at an excessive speed. The loss of control of the vehicle may have been caused in part by the defective condition of the vehicle of which he must be taken to have been unaware. Nevertheless his driving was grossly culpable and resulted in the death of the unfortunate passenger whose judgment as to the respondent’s condition may have been impaired by his own ingestion of alcohol.

   [48] R v Johnston (1985) 38 SASR 582, 583.

8. Consideration was given to what was described as “the prevailing tariff of sentences for this type of crime” and, in the period 1983 to mid-1985, the highest sentences imposed in the District Court were of two years’ imprisonment with licence disqualifications for four years.[49] These seem to have been based upon observations made by Lord Lane CJ when speaking for the Court of Criminal Appeal in R v Boswell.[50] The argument for the Attorney-General was that the prevailing standards were “too lenient”:[51]

   The Crown Prosecutor submitted that there is grave community concern in relation to the number of people killed and injured on the roads. He stated that that community concern was shared by the Attorney-General and the government. He referred to the “deadly combination” of youth, speed, alcohol and country roads and, without limiting his submission to those factors, emphasized them as “substantial and predominating factors in relation to the road toll”. He argued that current sentences for this offence are not providing a sufficient deterrence that sentences should be increased.

   [49] R v Johnston (1985) 38 SASR 582, 583 (King CJ, with whom White and Millhouse JJ agreed).

   [50] R v Boswell (1984) 79 Cr App R 277, 282 (Lane CJ).

   [51] R v Johnston (1985) 38 SASR 582, 584 (King CJ, with whom White and Millhouse JJ agreed).

9. In dismissing the appeal King CJ emphasised that the “desire to deter must not be given inordinate scope” and that “the needs of rehabilitation, must always be considered”.[52] Despite having “reflected long on the argument”, King CJ considered that there was no evidence that an increase in penalty would have any effect on the incidence of the offence. Although he thought that the non-parole period was low, he emphasised that Mr Johnston was a married man with two children, planning a home for his family. In these circumstances, he thought that Mr Johnston was “likely to respond to parole”.[53]

   [52] R v Johnston (1985) 38 SASR 582, 586.

   [53] R v Johnston (1985) 38 SASR 582, 586-587.

10. Although White J agreed with King CJ, he would “have imposed a longer period of disqualification” and he would have “taken a less favourable view of the facts if the Crown had gone to the trouble of joining issue with the version of the facts put forward by the appellant” regarding his knowledge of the vehicle’s defects.[54] Similarly, though Millhouse J agreed that the appeal should be dismissed, this was “with some hesitation” and he would have preferred a longer sentence as well as a longer non-parole period.[55]

    [54] R v Johnston (1985) 38 SASR 582, 587.

    [55] R v Johnston (1985) 38 SASR 582, 587.

11. In 1987, just two years later, the Court of Criminal Appeal in R v Hicks considered another appeal by the Attorney-General in a case of cause death by dangerous driving, this time against the inadequacy of a suspended sentence imposed in the District Court.[56] The sentence was one of imprisonment for two years with a non-parole period of one year, suspended upon entry into a recognisance to be of good behaviour for two years and a disqualification from holding or obtaining a driver’s licence for four years.

    [56] R v Hicks (1987) 45 SASR 270.

12. On 9 November 1985 Mr Hicks was driving north along Port Wakefield road at Windsor at about 11:00 am.[57] Whilst this was below the speed limit, he moved onto the wrong side of the road and collided with another car. The other driver was travelling with his wife, daughter and two grandchildren. The wife and a granddaughter were killed.

    [57]   Mr Hicks was sentenced according to the law and the maximum penalty as it stood at the time of his offence which, as at 9 November 1985, was seven years’ imprisonment.

13. Around two hours after the accident a blood test disclosed that Mr Hicks had a blood alcohol concentration of 0.243 per cent.

14. Witnesses said that Mr Hicks appeared to be grossly affected by liquor and that he exercised very little control over his vehicle. He had been to an RSL function the night before and probably had liquor to drink on the morning of the accident.

15. Mr Hicks was aged 66, had no prior convictions, and he and his wife cared for their 31-year-old son who had a disability. During World War II he had served in Darwin and in New Guinea. He was retired on a war service pension.

16. King CJ was not satisfied that suspension was, in the particular circumstances of that case, inappropriate.[58] King CJ emphasised that, even had he had difficulty with the suspension, he would have “felt great reluctance” in allowing the appeal because Mr Hicks was an ailing, elderly man of previous good character.[59] Nonetheless, his Honour held that the period of four years licence disqualification was too short and he increased it to 15 years.

    [58] R v Hicks (1987) 45 SASR 270, 272, citing cases of causing death by dangerous driving where suspension was appropriate including R v Hewett (1981) 27 SASR 364, R v Haynes (1984) 113 LSJS 186, R v Andrews (1985) 40 SASR 133, and also R v Boll (1983) 33 SASR 321 where the Court of Criminal Appeal approved a fine and licence disqualification.

    [59] R v Hicks (1987) 45 SASR 270, 272-273, citing R v Wilton (1981) 28 SASR 362, 363-364 (King CJ), R v Osenkowski (1982) 30 SASR 212 and R v Drewett (1983) 35 SASR 344.

17. White J, in dissent, took an altogether more serious view.  His Honour was concerned by Mr Hicks’ failure to explain properly his history of drinking.[60] White J inferred that a high blood alcohol reading was “not unusual” for Mr Hicks.[61] After analysing the route taken, White J concluded that he was likely to have been driving badly for around 60 kilometres. White J would have allowed the appeal and imposed a head sentence of two years with a non-parole period of six months which Mr Hicks would be required to serve. He too would have substituted a disqualification period of 15 years, concluding that “[h]e should never drive again”.[62]

    [60] R v Calabria (1982) 31 SASR 423, 453 (White J, with whom King CJ and Matheson J agreed) and R v Perre (1986) 41 SASR 105, 105-106 (King CJ) regarding the respective roles of Crown counsel, the defence and a sentencing Judge as to the material to be put before the court for the purposes of sentencing.

    [61] R v Hicks (1987) 45 SASR 270, 278.

    [62] R v Hicks (1987) 45 SASR 270, 287.

18. If sentencing afresh, Prior J would have ordered a term of imprisonment of five years and fixed a non-parole period of two years, together with disqualification for 10 years. Prior J explained that, in that event, he would “agonise over whether the sentence of imprisonment should be suspended”.[63] Ultimately, Prior J was influenced by the fact that counsel for the Attorney could not assure the Court that no other charges were pending in relation to the injury sustained by a passenger in the other vehicle. Accordingly, he proposed a term of imprisonment of four years with a non-parole period of 18 months. Ultimately, however, he recognised that his was a minority view and he was persuaded by what King CJ had said, and by the fact that the sentencing Judge had chosen to suspend, to agree to a suspended sentence. Because the custodial sentence of four years proposed by him did not find favour with the other members of the Court, he concurred in the period of disqualification proposed by the Chief Justice (15 years).

    [63] R v Hicks (1987) 45 SASR 270, 287.

19. An important previous case is the decision by five Judges comprising the Court of Criminal Appeal in R v Payne.[64] This case was decided before the Kapunda Road Royal Commission and the 2006 amendments.  Mr Payne pleaded guilty to causing death by dangerous driving and received a sentence of three years’ imprisonment with a non-parole period of 18 months.  Mr Payne was disqualified from holding or obtaining a driver’s licence for 10 years.  But for his plea of guilty, Mr Payne would have been sentenced to imprisonment for three years and nine months.

    [64] R v Payne (2004) 89 SASR 49 (Doyle CJ, Mullighan, Nyland, Sulan and Anderson JJ).

20. On 13 June 2003 Mr Payne was driving on his way home when he entered the junction of Blacks Road and Main South Road against a red light, having already driven through a red light at an earlier junction. Mr Payne’s vehicle collided with a vehicle driven by a Mrs Ralph in which her two daughters were passengers. The youngest daughter, a nine-year-old, was seriously injured. After two days on life support she died, having never regained consciousness.

21. Mr Payne’s driving was “highly irresponsible”; he had been driving at a dangerous speed and in a dangerous manner for “a significant period”.[65] The offending was regarded as “a serious case of this type” and:[66]

    Although it is accepted that Mr Payne did not intend the tragic consequences of his conduct, his driving was so irresponsible that he is morally culpable for what occurred. One can only describe his driving as an appalling disregard of the rules of the road.

    [65] R v Payne (2004) 89 SASR 49, [84].

    [66] R v Payne (2004) 89 SASR 49, [84].

22. Mr Payne had a number of previous convictions and had been disqualified from driving for six months in 1999.  The sentence of three years with a non-parole period of 18 months was regarded as “merciful”.[67]  Nonetheless, there were mitigating factors, including that Mr Payne was married with five children. He was the main breadwinner and “truly contrite”. The Court concluded:[68]

    The offending was serious. The sentence is moderate. It could have been more. But it is not, in the circumstances, so lenient as to indicate that it was wrong. This is not a case in which this Court needs to intervene to set or to identify an appropriate standard of penalty for the offence. As this Court has said in the past, the range of penalty for this offence is a fairly wide one. The court must always recognise the discretion that sentencing judges have. This is not a case where it can be said that the court should intervene.

    [67] R v Payne (2004) 89 SASR 49, [85].

    [68] R v Payne (2004) 89 SASR 49, [90].

23. The Court refused leave to appeal, having earlier emphasised the relevant principles in the following manner:[69]

    Leave should only be granted to establish some matter of principle, pursuant to which the Court of Criminal Appeal might give guidance to sentencing judges, or if it is necessary for the court to establish and maintain adequate standards of punishment for a crime, or to correct a sentence which is so disproportionate to the seriousness of the crime as to require intervention so that standards of penalty and public confidence in the administration of justice can be maintained: see Everett v The Queen (1994) 181 CLR 295 at 299-300; Griffıths v The Queen (1977) 137 CLR 293; R v Osenkowski (1982) 30 SASR 212 at 212-213.

    [69] R v Payne (2004) 89 SASR 49, [86].

24. Of significance in that matter was that, of 24 sentences imposed over the previous two years, only four had resulted in a higher sentence.  As to this, the Court acknowledged:[70]

    The circumstances of each case vary markedly. In cases of death by dangerous driving, the variation of circumstances is almost unlimited. The personal circumstances of offenders are different, and the comparison of one sentence with another is of limited assistance to the court … No idiosyncratic approach was demonstrated on the part of the sentencing judge. Nor can it be said that the circumstances of this offence required a sentence outside the range set by other sentences.

    [70] R v Payne (2004) 89 SASR 49, [88].

25. R v Payne is also noteworthy for the careful explanation as to how the Court of Criminal Appeal gives guidance to judges and magistrates when imposing sentences, and giving sentencing guideline rulings.[71] This was described as an adjunct to the “system of common law principles” applicable to a court of appeal,[72] and regardless of the scope for a judgment giving sentencing guidelines under the (now repealed) s 29A of the Criminal Law (Sentencing) Act 1988 (SA).

    [71] R v Payne (2004) 89 SASR 49, [86].

    [72] R v Payne (2004) 89 SASR 49, [9].

26. In the result, the Court declined the invitation to give a “guideline judgment”.

27. A clear indication of the effect of the 2006 legislative introduction of the “aggravated” form of the offence that followed R v Payne, and the hardening in attitude to this type of offending, is provided by the decision of this Court in R v Dundovic.[73]  This was another application by the Director of Public Prosecutions for leave to appeal.  The sentencing Judge had imposed a single sentence for two offences:

    1A charge under s 19A(1) of the Criminal Law Consolidation Act 1935 (SA) of driving in a culpably negligent manner, or recklessly, or at a speed or in a manner that was dangerous to the public, thereby causing the death of a Mr Godfrey. As an aggravated offence, this attracted a maximum punishment of imprisonment for life and a licence disqualification for at least 10 years; and

    2A charge under s 19A(3) of the Criminal Law Consolidation Act 1935 (SA) of driving in a culpably negligent manner, or recklessly, or at a speed or in a manner that was dangerous to the public, thereby causing harm to a Ms Cailes. This was also an aggravated offence attracting a maximum punishment of imprisonment for seven years and a licence disqualification for at least three years.

    [73] R v Dundovic (2008) 101 SASR 32, [26] (Doyle CJ, with whom Bleby and Anderson JJ agreed).

28. But for an early plea of guilty for which a 20 per cent reduction was made, the sentence of imprisonment would have been five years and eight months. After reduction it was four years, 10 months and two weeks.

29. Early in the morning of February 2007 Mr Dundovic was engaged in a police pursuit at such a high speed (at least 100 kilometres per hour) that police broke off the pursuit. But, about two hours later, a different police patrol pursued him. A little later a third police patrol embarked on a high-speed pursuit, during which Mr Dundovic drove through red lights and, near the end of the pursuit, without his headlights on.

1. Mr Dundovic collided with a vehicle being driven by a Mr Godfrey who was on his way to work. Mr Godfrey turned across the path of Mr Dundovic at a time when Mr Dundovic’s speed was estimated at 160 kilometres per hour. The probabilities are that Mr Godfrey did not see the approach of Mr Dundovic or did not appreciate the speed at which he was approaching. Mr Godfrey died at the scene of the motor accident and a passenger in Mr Dundovic’s motor vehicle suffered minor injuries, as did Mr Dundovic.

2. The fact of two police pursuits before the motor accident was pleaded as an aggravating factor within s 10(1)(c) of the Criminal Law (Sentencing) Act 1988 (SA). In addition, within the meaning ss 5AA(1a)(a) and (c) of the Criminal Law Consolidation Act 1935 (SA), it was an aggravated offence because it was committed “in the course of attempting to escape pursuit by a police officer” and, in addition, the offence was committed “as part of a prolonged, persistent and deliberate course of very bad driving”.

3. Doyle CJ, with whom Bleby and Anderson JJ agreed, emphasised other circumstances of aggravation. These were that Mr Dundovic was travelling with two passengers and he had both amphetamine and methamphetamine in his blood. In addition, he was then on parole as well as on bail and in breach of his bail curfew condition. Finally, Mr Dundovic had no driver’s licence “and had never had one”.[74]

   [74] R v Dundovic (2008) 101 SASR 32, [15].

4. The observation by the sentencing Judge that the conduct was “towards the upper end of the scale of seriousness for crimes of this type” was criticised.[75]  That observation was an understatement because the offending was “of the worst kind, or of the same order as offences of the worst kind”.[76] Doyle CJ explained that there was “almost nothing by way of mitigation” in Mr Dundovic’s personal circumstances and, following an “unfortunate” childhood, there was a long record of offending which included several sentences of imprisonment.[77]  Mr Dundovic was “not a good candidate for parole”.[78]

   [75] R v Dundovic (2008) 101 SASR 32, [16].

   [76] R v Dundovic (2008) 101 SASR 32, [16].

   [77] R v Dundovic (2008) 101 SASR 32, [17] and [19].

   [78] R v Dundovic (2008) 101 SASR 32, [19].

5. Doyle CJ regarded the reduction in sentence by 20 per cent on account of an early plea of guilty as “generous” and, though there had been expressions of regret, there was no finding that Mr Dundovic “was genuinely contrite and remorseful”.[79]

   [79] R v Dundovic (2008) 101 SASR 32, [21].

6. Emphasising that the former sentencing Act, as with the present Act, stipulates that a “primary policy” is the protection of the safety of the community,[80] and that attempts to outrun police were “fairly common”, Doyle CJ explained that:[81]

   The prevalence of this kind of offending, and the risk of harm that it creates, warrants a firm response from the courts, with due attention being paid to general deterrence.

   [80] Criminal Law (Sentencing) Act 1988 (SA), s 10(1b) (repealed).

   [81] R v Dundovic (2008) 101 SASR 32, [27].

7. Doyle CJ held that the sentence was manifestly inadequate. There was a need to avoid double punishment. Before any allowance for the plea of guilty, the Chief Justice would have imposed a sentence of imprisonment for 14 years, being 12 years for the offence against s 19A(1), and two years for the offence against s 19A(3). A reduction of 15 per cent for the guilty plea was made, resulting in a sentence of imprisonment for 11 years and 11 months.

8. Whilst something more than mere error is usually required before the Court will grant permission to the Director to appeal against a sentence,[82] Doyle CJ held:[83]

   There are two factors in the present case that support a grant of permission to appeal. First, the sentence that the judge imposed is so far below what I consider to be appropriate, that it calls for correction. To allow the sentence to stand would tend to shake public confidence in the administration of justice. The second factor is that the sentence that the judge imposed does not reflect an appropriate standard of punishment for offences of the kind in question. To some extent that can be corrected by the court indicating what is an appropriate sentence, but maintenance and observance of appropriate standards of sentencing is a relevant factor for consideration.

   [82] R v Nemer (2003) 87 SASR 168, [22]-[32] (Doyle CJ, with whom Prior and Vanstone JJ relevantly agreed) and R v McIntosh [2017] SASCFC 87, [10]-[16] (Hinton J, with whom Peek and Nicholson JJ agreed).

   [83] R v Dundovic (2008) 101 SASR 32, [33].

9. The exercise of the discretion on re-sentencing was complicated by the need to make allowance for time spent in custody as well as for prior offending. Ultimately, the new head sentence imposed was 11 years and two months.

10. The existence of the extant sentence also complicated the fixing of a non-parole period.[84] Ultimately, Doyle CJ determined to fix a “lengthy non-parole period” of nine years and two months.

    [84] R v Dundovic (2008) 101 SASR 32, [38]-[48].

11. Few of these previous decisions involved relevant, recent prior offending, nor all of the aggravating features to be found in this case. Whilst it may readily be accepted that this case cannot be equated with R v Dundovic, it does tend to show that sentences for the offence of aggravated cause death by dangerous driving have increased in the 15 years or so since the introduction of a maximum sentence of life imprisonment.

12. That conclusion is reinforced by recent decisions of this Court. 

13. For example, in R v Watkins this Court dismissed the defendant’s appeal against a sentence of eight years’ imprisonment with a non-parole period of six years and five months.[85]  But for Mr Watkins’ guilty pleas, the sentencing Judge would have imposed a term of imprisonment of 10 years. Mr Watkins was disqualified from holding or obtaining a driver’s licence for 12 years. He had pleaded guilty to one count of aggravated causing death by dangerous driving, one count of aggravated causing serious harm by dangerous driving and four counts of aggravated causing harm by dangerous driving. 

    [85] R v Watkins (2013) 118 SASR 342 (Stanley J, with whom Kourakis CJ and Vanstone J agreed).

14. The offending occurred at around 2 am on Sunday, 6 November 2011 at Woodville North.  Mr Watkins drove with four passengers at very high speeds (110 to 130 kilometres per hour) whilst under the influence of alcohol (0.058 per cent) and methylamphetamine on a major suburban roadway.  It was unclear whether he was also affected by cannabis, although there was THC in his blood.  His driving was seriously reckless.  When Mr Watkins ran a red light, one of his passengers told him to slow down.  When he saw bumps ahead he said, “[l]ook what happens when I go over them really fast”.  He took his hands off the steering wheel.  He switched the headlights off.  He lost control, crossed onto the wrong side of the road and collided with an oncoming car.  One of the passengers in his car was killed, and injuries were sustained by five passengers in his car and the other car.

15. The appellant was 42 years of age at the time of the offending and the father of two children.  He was separated from his wife. He was the proprietor of a transport business which had failed.  He was found to be deeply remorseful and contrite.  It was submitted that he had good prospects of rehabilitation.  In dismissing the appeal, Stanley J, with whom Kourakis CJ and Vanstone J agreed explained:[86]

    In fixing sentence the court must have regard to a range of factors for offending of this kind. Those factors are the circumstances of the offending, in particular the manner of driving, the nature of the matters of aggravation, the number and nature of offences committed, the impact of the offending on the victims, the matters referred to in s 10(1) of the Sentencing Act, in particular the need to protect the safety of the community, the need for general deterrence and the personal circumstances of the offender.

    [86] R v Watkins (2013) 118 SASR 342, [24].

16. Similarly, in R v Ceruto this Court dismissed a defendant’s appeal against a sentence of imprisonment of six years and 10 months with a non-parole period of five years and five months for aggravated cause death by dangerous driving.[87]  The sentencing Judge started at 10 years before making a 30 per cent reduction for an early guilty plea.  Mr Ceruto was disqualified from holding or obtaining a driver’s licence for 10 years.  The offending was described as “egregious”.  Mr Ceruto was awoken by his fiancée.  She was unwell.  He panicked and decided to drive her to hospital. He had not planned to be driving:[88]

    At about 7 am on Friday 11 January 2013 the appellant, while significantly under the influence of drugs and alcohol, forced his heavily pregnant fiancee, Lisa Smith, who was feeling unwell, into the appellant’s motor vehicle at their house at Woodville Park. When they left their house, the appellant was naked and Ms Smith was wearing underwear only. The appellant drove off at high speed. Shortly thereafter the appellant’s motor vehicle collided with a stobie pole on Radstock Street, Woodville Park. The impact was so severe as to uproot the stobie pole. Ms Smith was critically injured and subsequently died in hospital. Her unborn child also died as a result. The collision occurred in a suburban street where the speed limit is 50 km per hour. Immediately prior to the collision the evidence suggests that the appellant’s vehicle was travelling at a speed somewhere between 115 and 137 km per hour. At the time, there was present in the appellant’s blood a concentration of somewhere between 0.141 and 0.161 grams of alcohol in 100 millilitres of blood. In addition, there was a concentration of 0.65 mg/L of methylamphetamine in his blood.

    [87] R v Ceruto (2014) 66 MVR 94 (Stanley J, with whom Kourakis CJ and Vanstone J agreed).

    [88] R v Ceruto (2014) 66 MVR 94, [13] (Stanley J, with whom Kourakis CJ and Vanstone J agreed).

17. Mr Ceruto fled the scene and rendered no assistance, exhibiting a “callous” disregard for the welfare of his fiancée and unborn child.  He was 30 years of age. He had a long history of alcohol and substance abuse, a history of offending both as a youth and as an adult, and had been unemployed for most of the decade before the subject offending. It was held that the discount of 30 per cent for his guilty plea was excessive:[89]

    In Baumer v R[90] the High Court said the task of the sentencing judge is to evaluate the circumstances of the offence in their entirety, including the aggravating influence of alcohol, drugs and speed, and to determine an appropriate term of imprisonment having regard to the prescribed maximum of life, and to the possible range of offences to which it applies.[91] In addition, s 10 of the Sentencing Act requires the court to consider the impact of the offending on the victims, the need to protect the safety of the community, the need for general deterrence and the personal circumstances of the offender.[92]

    (Citations in original.)

    [89] R v Ceruto (2014) 66 MVR 94.

    [90] Baumer v The Queen (1988) 166 CLR 51.

    [91] Baumer v The Queen (1988) 166 CLR 51, 57 (the Court).

    [92] R v Watkins (2013) 118 SASR 342, [24] (Stanley J, with whom Kourakis CJ and Vanstone J agreed).

18. In R v Wooldridge this Court allowed the defendant’s appeal following a plea of guilty to four counts of causing death by dangerous driving and one count of causing serious harm by dangerous driving.[93]  Mr Woolridge was 65 years of age and had “an unblemished record” and was regarded as “a pillar of [his] community”.

    [93] R v Wooldridge (2015) 123 SASR 422 (Gray ACJ, Peek and Nicholson JJ).

19. On 1 December 2014 Mr Wooldridge was approaching a T-junction, distracted by looking at his GPS device.  He entered the highway without giving way or reducing speed.  He was not speeding, nor deliberately flouting the road rules.  Unlike this case or the case of R v Dundovic, there was no positive act of recklessness, nor any drugs or alcohol involved.  One penalty was imposed for all five offences.  The Court criticised the starting point of seven years before reduction for the pleas of guilty.[94]

    [94] R v Wooldridge (2015) 123 SASR 422, [83].

20. The case is noteworthy for the exposition of the proper approach to determining sentence involving multiple counts associated with what was, effectively, one course of conduct.  After allowance for the “total criminality involved in the one act”[95] the Court ordered that the sentences be served partially concurrently with the result that the head sentence was determined to be five years and six months.[96]  This was reduced to three years and four months on account of the early guilty pleas, representing just under 40 per cent of the discount permitted by the then sentencing Act.[97] A non-parole period of one year and eight months was fixed. The Court found that there was good reason to suspend the sentence of imprisonment.  After allowance for the time spent in custody, the head sentence was three years, one month and one week and the non-parole was fixed at one year, five months and one week.[98] 

    [95] R v Wooldridge (2015) 123 SASR 422, [75].

    [96] R v Wooldridge (2015) 123 SASR 422, [81].

    [97] R v Wooldridge (2015) 123 SASR 422, [84].

    [98] R v Wooldridge (2015) 123 SASR 422, [91]-[92].

21. As for the period of the requisite licence disqualification, the Court held that it would be “appropriate, in the circumstances of this case, for the appellant not to drive again”.[99]  The total period of disqualification ordered was 35 years:[100]

    This in itself is a severe punishment but one that is warranted bearing in mind the appellant’s age, the nature of the driving concerned and its tragic consequences.

    [99] R v Wooldridge (2015) 123 SASR 422, [93].

    [100] R v Wooldridge (2015) 123 SASR 422, [93].

22. As may be obvious, R v Wooldridge was an unusual case and did not concern a case of aggravated cause death by dangerous driving. 

23. In R v Edwards this Court allowed a Crown appeal against sentences of imprisonment for terms totalling four years, 10 months and 21 days, with a non‑parole period of three years and six months for the offences of aggravated cause death by dangerous driving, aggravated serious criminal trespass in a place of residence, aggravated assault causing harm, being unlawfully on premises and damaging a motor vehicle.[101]  The relevant offence of aggravated cause death by dangerous driving involved Mr Edwards driving home after work, during which he drifted onto the wrong side of the road and into the path of oncoming traffic.  He collided with another vehicle, causing the death of the other driver.  Subsequent blood analysis showed a relatively high level of tetrahydrocannabinol.  Mr Edwards then developed symptoms of post-traumatic stress disorder and eventually turned to alcohol and drug abuse, causing a breakdown in his domestic relationship.  It was these consequences that eventually led to the other offending.

    [101] R v Edwards [2016] SASCFC 145 (Blue, Lovell and Hinton JJ).

24. The Court held that the sentences were manifestly inadequate and that it was appropriate to grant permission to appeal.  On the charge of aggravated cause death by dangerous driving, the Court started with a head sentence of four years and six months, reduced by 10 per cent on account of a plea of guilty, leaving a sentence of four years and one month.  The applicable sentencing Act provisions required that the non‑parole period be at least four fifths of the head sentence.

25. Whilst R v Edwards involved the ingestion of drugs, it did not involve both alcohol and drugs, nor did it involve offending with the same degree of serious recklessness and culpability as in this case. That there were other sentences imposed for other offending may well have influenced the approach taken to the sentence imposed for the aggravated cause death by dangerous driving offence.

    Young offenders — manifest inadequacy

26. Reference has already been made to the remarks made by this Court in R v Singh.[102]  This Court has considered the approach required in the case of young offenders on a number of occasions.[103] 

    [102] R v Singh (2011) 111 SASR 219.

    [103] See for example R v McGaffin (2010) 206 A Crim R 188 (White J, with whom Doyle CJ agreed, Gray J, contra) and R v Williams [2018] SASCFC 14, [41]-[45] (Hinton J, with whom Stanley and Blue JJ agreed).

27. Victorian authorities have, likewise, emphasised that the common law recognises that immature, young offenders are “prone to ill-considered or rash decisions” and that there may be greater “potential for young offenders to be redeemed and rehabilitated”.[104]  As well, consideration must be given to the risk that incarceration in an adult prison will more likely impede, rather than improve, a young offender’s prospects of successfully rehabilitating.[105] 

    [104] Azzopardi v The Queen (2011) 35 VR 43, [34]-[35] (Redlich JA, with whom Coghlan and Macaulay AJJA agreed).

    [105] R v McGaffin (2010) 206 A Crim R 188, [69] (White J, with whom Doyle CJ agreed).

28. Nonetheless, where the relevant demographic committing particular types of offences is “predominantly youths and young men”, and where the offending is “prevalent”, it remains appropriate for “general deterrence, specific deterrence and denunciation” to be emphasised.[106]

    [106] Director of Public Prosecutions (Vic) v Lawrence (2004) 10 VR 125, [22] (Batt JA, with whom Winneke P and Nettle JA agreed).

29. In this case it was of course relevant that the respondent was only 20 years of age at the time of sentencing.  His prospects for successful rehabilitation, and his evident genuine contrition, required close consideration.  However, and as against that, the sentencing Court was confronted with a young man who had engaged in relevant criminal offending only four months before the subject offending.  He well knew he was disqualified from driving at the time of the subject offending.  It is obvious that the dramatic example of having driven only four months before onto the wrong side of a major roadway whilst heavily affected by alcohol, colliding head-on and causing another driver to be injured and the other vehicle to be destroyed by fire, had not deterred this respondent. 

30. The sentencing Judge must also have been aware of the prevalence of young drivers, often but not always young men, to engage in high speed races in suburban streets whilst affected by alcohol or drugs.  That of itself called for a firm response from the Court.

31. Finally, the sentence also needed to reflect that the respondent’s conduct in the early hours of Australia Day 2019 was not only dangerous but seriously reckless.  Driving at high speed whilst heavily affected by alcohol on the wrong side of a suburban roadway at night, approaching a left-hand bend, cannot be relegated to mere immaturity, particularly given the previous offending only four months before.  The respondent knew that there were young passengers in both vehicles.  The risk of really serious injury or death[107] to the occupants of both vehicles must have been obvious given the “near miss” with an oncoming vehicle only moments before the motor accident.

    [107] The preferred term regarding the degree of harm that must be intended in cases of murder rather than manslaughter, R v Perks (1986) 41 SASR 335 and R v Wingfield [1994] SASC 4451 (King CJ with whom Bollen and Mullighan JJ agreed), though of course this case does not involve either of those charges.

32. As well, this case is noteworthy for the number of aggravating features, not all of which were pleaded in the Information or specified by s 5AA of the Criminal Law Consolidation Act 1935 (SA). So there was here a combination of excessive alcohol, some MDMA, racing another vehicle at high speed at night, driving on the wrong side of the road approaching a left hand bend, obvious risk to the safety of a number of young passengers and the community generally, driving whilst disqualified, and the earlier collision only four months before, also on the wrong side of a roadway whilst affected by alcohol.

1. Accordingly, whilst rehabilitation remained important and relevant, deterrence (both specific and general), denunciation and punishment were particularly important in the circumstances of this case.  Notwithstanding that the respondent was a young offender, the sentence of imprisonment which was imposed was in this case manifestly inadequate, enlivening this Court’s authority to intervene, albeit that whether this Court intervenes on a Crown appeal is subject to the exercise of the discretion next discussed.

   The exercise of discretion

2. Whilst permission to appeal is only granted to the Crown in “rare and exceptional cases”,[108] that will be appropriate where it is necessary to maintain adequate standards of sentence,[109] and where the sentence is so manifestly inadequate that correction is necessary to maintain “confidence in the administration of justice”.[110] In CMB v Attorney-General (NSW) the High Court restated the relevant principle as follows:[111]

   The joint reasons in Green v The Queen explain the difference in appellate approach to offender and prosecution appeals by reference to the purpose that each serves: offender appeals being concerned with the correction of error in the particular case and prosecution appeals being concerned with laying down principles for the guidance of sentencing courts. This is the “limiting purpose” which CMB invokes in his first ground.

   In R v Hernando, Heydon JA summarised the Court of Criminal Appeal’s approach to the disposition of prosecution appeals against sentence:

   “[I]f this Court is to accede to the Crown’s desire that the respondent be sentenced more heavily, it must surmount two hurdles. The first is to locate an appellable error in the sentencing judge’s discretionary decision. The second is to negate any reason why the residual discretion of the Court of Criminal Appeal not to interfere should be exercised.”

   (Footnotes omitted.)

   [108] Everett v The Queen (1994) 181 CLR 295, 299-300 (Brennan, Deane, Dawson and Gaudron JJ).

   [109] R v Osenkowski (1982) 30 SASR 212, 212-213 (King CJ).

   [110] Everett v The Queen (1994) 181 CLR 295, 306 (McHugh J) and R v Nemer (2003) 87 SASR 168, [24] (Doyle CJ, with whom Prior and Vanstone JJ relevantly agreed).

   [111] CMB v Attorney-General (NSW) (2015) 256 CLR 346, [55]-[56].

3. In this case the sentence imposed of four years and six months is vitiated by the error about the blood alcohol reading to which reference has already been made.[112]  However, it is not necessary to form a final view about that because, regardless of that error, when one has regard to the seriousness of the offending and the circumstances of the offender, the sentence is so low as to require intervention and correction.  It was not “proportionate” to the seriousness of the offending and the circumstances of the offender.[113] 

   [112] This issue, however, was not the subject of submissions from either party.

   [113] Sentencing Act 2017 (SA), s 10(1)(a). See for example in a different context, R v Phanos (2015) 122 SASR 129, [5] and [34]-[38] (Kourakis CJ, Peek, Blue and Nicholson JJ, Vanstone J contra): “a critical safeguard of the liberty of the individual”. See also R v Cavanagh-Novelli [2014] NTCCA 21 (Riley CJ, with whom Southwood and Barr JJ agreed) where a Crown appeal against sentence was allowed in part because the sentence imposed by the sentencing court was disproportionate to the seriousness of the offending.

4. Not only is the head sentence too low, but the need to protect the safety of the community[114] requires a longer period of licence disqualification as well. As has been said, “driving is not a right but a privilege”.[115]

   [114] Sentencing Act 2017 (SA), ss 3 and 9, whether as individuals, or in general.

   [115] South Australia, Parliamentary Debates, Legislative Council, 13 August 1986, 278 (the Honourable C J Sumner, Attorney-General).

5. Whilst it may be accepted that allowing the appeal will involve both hardship and vexation to the respondent, it is necessary for this Court to emphasise the proper approach required to the sentencing of young offenders involved in seriously reckless cases of aggravated cause death by dangerous driving where the maximum sentence is life imprisonment. 

6. Though it is possible to point to worse examples of aggravated cause death by dangerous driving, this is an egregious example and the allowance to be made for the respondent’s youth and prospects of rehabilitation is somewhat counterbalanced by the aggravated nature of his offending, its prevalence and the fact that there was relevant offending only four months before.  Accordingly, in this case the role of deterrence, especially personal deterrence, is particularly important, and these objectives cannot be achieved by simply declaring that the sentence is too low.[116]

   [116] Cf, R v Maroroa [2020] SASCFC 68, [96] (Nicholson J, with whom Peek J agreed, Kelly J contra) and R v CAB [2020] SASCFC 33, [8]-[12] and [85]-[86] (Livesey J, with whom Kourakis CJ and Doyle J agreed).

7. For these reasons, there is a public utility in the grant of permission to appeal which outweighs the public interest in ensuring that a respondent is not twice vexed by the repeated exercise of the coercive power of the State.[117]

   [117] R v Lean (2017) 128 SASR 451, [4] (Hinton J, with whom Stanley and Nicholson JJ agreed).

   Conclusion 

8. The orders of the Court should be:

   1Permission to appeal is allowed.

   2The sentence imposed by the District Court on 5 February 2020 is quashed.

   3The respondent is resentenced to a term of imprisonment of six years and six months, reduced by 30 per cent on account of the guilty plea to four years, six months, two weeks and four days, together with a non-parole period fixed at three years, seven months and three weeks, backdated to commence on 26 January 2019 when the respondent was first taken into custody. 

   4The period of disqualification from holding or obtaining a driver’s licence is increased from 13 years to 15 years, to commence upon the expiry of any earlier period of disqualification.

9. BLEBY J: For the reasons given by Livesey J, I would grant permission to appeal. I would join in the orders proposed by Livesey J.