(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…
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.
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Details
AGLC
R v Akol [2020] SASCFC 75
Case
[2020] SASCFC 75
Decision Date
CaseChat Overview and Summary
The Crown appealed against a sentence imposed by the District Court on the respondent, R v Akol, for a charge of culpable driving causing death. The appeal concerned the adequacy of the sentence handed down by the sentencing judge.
The central legal issue before the appellate court was whether the sentence imposed by the District Court was manifestly inadequate, thereby justifying the Crown's appeal against sentence. The court was required to consider the principles governing Crown appeals against sentence, particularly when the original sentence is alleged to be too lenient.
The court granted permission to appeal, finding that there was a public utility in doing so that outweighed the principle against a respondent being twice vexed. The court reasoned that the original sentence was inadequate, and therefore quashed it. The respondent was resentenced to a term of imprisonment of six years and six months, which was reduced by 30 per cent due to the guilty plea, resulting in an effective sentence of four years, six months, two weeks, and four days. A non-parole period of three years, seven months, and three weeks was fixed, backdated to the respondent's custody commencement date. Additionally, the period of disqualification from holding a driver's licence was increased from 13 years to 15 years.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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 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. 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.