R v Arnold

Case [2015] SASCFC 13

Supreme Court of South Australia

(Court of Criminal Appeal)

R v ARNOLD

[2015] SASCFC 13

Judgment of The Court of Criminal Appeal

(The Honourable Justice Gray, The Honourable Justice Parker and The Honourable Auxiliary Justice Duggan)

16 February 2015

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

CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-PAROLE PERIOD OR MINIMUM TERM  - SOUTH AUSTRALIA - GENERALLY

Appeal against sentence.  The defendant pleaded guilty to the offence of causing serious harm by dangerous driving.  The defendant was driving at an excessive speed and lost control of his vehicle, colliding with a tree and causing serious injuries to a passenger travelling in his vehicle.  The defendant also suffered injuries.  The Judge imposed a sentence of imprisonment of three years and six months and fixed a non-parole period of two years.  The Judge declined to suspend the sentence.  The defendant was disqualified from holding or obtaining a driver’s licence for a period of 10 years. 

Whether the head sentence and non-parole period were manifestly excessive.  Whether the Judge impermissibly fettered his discretion by stating that only an immediate prison sentence is capable of achieving the necessary sentencing considerations required for “such crimes”.  Whether the Judge erred in relation to the considerations relevant to the fixing of a non-parole period. 

Held per Duggan AJ (Parker J agreeing)(dismissing the appeal on ground two and refusing leave to appeal on grounds one and three):

1.  The Judge was not under any misunderstanding as to the exercise of the power to suspend any sentence which he might propose. 

2.  There was no error in the Judge’s approach in fixing the non-parole period. 

3.  The head sentence and non-parole period were within the bounds of the sentencing discretion and did not result in a manifestly excessive sentence.

Held per Gray J (dissenting):

1.  The sentence imposed by the Judge was manifestly excessive.

2.  The Judge unduly fettered his discretion.

3.  In fixing the non-parole period, the Judge was unduly influenced by considerations which bore upon the fixing of a head sentence rather than on the minimum term.

Criminal Law Consolidation Act 1935 (SA) s 19A(3); Road Traffic Act (SA) s 45A; Criminal Law (Sentencing) Act 1988 (SA) s 38, referred to.
Bugmy v The Queen (1990) 169 CLR 525; De Hollander v The Queen [2012] WASCA 127; The Queen v Robinson (1979) 22 SASR 367; Power v The Queen (1974) 131 CLR 623; R v Simpson (2001) 53 NSWLR 704; DPP v Gany (2006) 163 A Crim R 322; R v Whyte (2002) 55 NSWLR 252; R v Jurisic (1998) 45 NSWLR 209, considered.

R v ARNOLD
[2015] SASCFC 13

Court of Criminal Appeal:  Gray and Parker JJ, Duggan AJ

GRAY J.

  1. This is an appeal against sentence.

  2. The defendant and appellant, Peter Robert Arnold, pleaded guilty in the District Court to the offence of causing serious harm by…

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R v Arnold [2015] SASCFC 13
Case
[2015] SASCFC 13
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CaseChat Overview and Summary

The appeal concerned Peter Robert Arnold, who pleaded guilty in the District Court of South Australia to causing serious harm by dangerous driving. The sentencing judge imposed a head sentence of three years and six months imprisonment, with a non-parole period of two years, and declined to suspend the sentence. Arnold appealed against this sentence, arguing it was manifestly excessive.

The central legal issues before the Full Court of the Supreme Court of South Australia were whether the sentencing judge had erred in fixing the head sentence and the non-parole period, and whether the sentence imposed was manifestly excessive. Specifically, the court considered whether the judge had properly exercised his discretion to suspend the sentence and whether the non-parole period was fixed appropriately, taking into account the relevant sentencing principles.

The majority of the court, comprising Duggan AJ and Parker J, dismissed the appeal. They found that the sentencing judge had not misunderstood his power to suspend the sentence and that there was no error in his approach to fixing the non-parole period. The majority concluded that the head sentence and non-parole period were within the bounds of the sentencing discretion and did not result in a manifestly excessive sentence. In contrast, Gray J dissented, finding the sentence to be manifestly excessive. He held that the sentencing judge had unduly fettered his discretion and was improperly influenced by considerations relevant to the head sentence rather than the minimum term when fixing the non-parole period.

Orders

Orders of the court

Held per Duggan AJ (Parker J agreeing)(dismissing the appeal on ground two and refusing leave to appeal on grounds one and three):

1. The Judge was not under any misunderstanding as to the exercise of the power to suspend any sentence which he might propose.

2. There was no error in the Judge’s approach in fixing the non-parole period.

3. The head sentence and non-parole period were within the bounds of the sentencing discretion and did not result in a manifestly excessive sentence.

Held per Gray J (dissenting):

1. The sentence imposed by the Judge was manifestly excessive.

2. The Judge unduly fettered his discretion.

3. In fixing the non-parole period, the Judge was unduly influenced by considerations which bore upon the fixing of a head sentence rather than on the minimum term.

Background

Background to the litigation

The defendant and appellant, Peter Robert Arnold, pleaded guilty in the District Court to the offence of causing serious harm by dangerous driving, contrary to section 19A(3) of the Criminal Law Consolidation Act 1935 (SA). The Judge, having made a reduction of 12 months on account of the defendant’s plea of guilty, imposed a sentence of imprisonment of three years and six months. The Judge fixed a non-parole period of two years. The Judge declined to exercise his discretion to suspend the sentence. The defendant was disqualified from holding or obtaining a driver’s licence for a period of 10 years, commencing upon his release from prison. Background Shortly before midday on Saturday 19 February 2011, the defendant was driving his Ford utility vehicle south on Midway Road, Elizabeth Park. As he rounded a right-hand sweeping bend, he lost control and his vehicle crossed to the incorrect side of the road. The defendant’s vehicle almost collided head-on with two other vehicles whose drivers had to take evasive action to avoid a collision. The vehicle mounted the kerb, went careering through a fence and collided with a tree to the western side of the road. A police accident reconstruction expert estimated that the defendant was driving at about 100 kilometres per hour at the time that he lost control of his vehicle and began to slide across the road. The speed limit on that section of the road was 60 kilometres per hour. Eyewitnesses described the defendant’s vehicle as travelling at a speed well above that limit. An eyewitness gave a statement that she was following the defendant’s vehicle on Midway Road. She saw the defendant’s vehicle pull away from her own vehicle and heard the roar of the engine and the gear changes. She recalled thinking that the defendant’s vehicle was driving too fast. She observed the defendant’s vehicle enter the right-hand bend and lose control, moving on to the incorrect side of the road. She lost sight of the vehicle briefly and heard a loud bang. She saw that the vehicle had collided with a tree. The Judge noted that the defendant had modified his vehicle to enable it to be reprogrammed to increase the engine capacity’s output from that of a V6 to the equivalent of a V8. LH was travelling in the front passenger seat of the defendant’s vehicle. Following the crash, he was trapped and required extraction through the use of the Jaws of Life before being taken to hospital. He suffered numerous injuries, including a broken pelvis, a ruptured spleen requiring surgical removal, a punctured lung, fractured ribs, a fractured arm, a fractured left brow, a tear to the urethra, fractures of the lumbar vertebrae, a dissected descending aorta, a blood clot to his left leg, and extensive swelling and bleeding on the brain. He required a massive blood transfusion and developed cardiac arrest, but was successfully resuscitated. He spent three months at the Royal Adelaide Hospital before being transferred to the Hampstead Rehabilitation Centre. He was discharged to his home on 28 May 2011. He continues to suffer from brain injuries that are likely to be life-long and ongoing pain in his left hip. He is no longer able to work as a spray-painter and is likely to be on a disability support pension for life. He is no longer able to live independently and suffers from depression. He has no memory of the crash.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

GRAY J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: GRAY J

Dawson, Toohey and Gaudron JJ, in their judgment, observed:Although Brooking J. clearly gave detailed consideration to the task he had to perform, it is hard to resist the conclusion that in his reasons his Honour was unduly influenced by considerations which bear on the fixing of a head sentence rather than on the minimum term. The risk that the applicant might re-offend was of course a relevant factor in fixing a minimum term. But a minimum term of eighteen years and six months is of such length as to take the prospects of re-offending in this case beyond even speculation. The applicant was twenty-seven years of age when the minimum term was fixed. He will be over forty-five before the likelihood that he will re-offend will become a matter for assessment. It is not possible to say now what the likelihood will be then. Equally, the applicant's behaviour in prison is a relevant consideration, but the longer the minimum term the less importance it must assume, simply because of the impossibility of making a forecast of future behaviour so far ahead. …[Emphasis added.] These extracts from Bugmy[8] have been approved in subsequent High Court authority and have received widespread application throughout Australia.[9] [8] Bugmy v The Queen (1990) 169 CLR 525.[9] Inge v The Queen (1999) 199 CLR 295, [6]; Hili v The Queen (2010) 242 CLR 520, [44]; Singh v The Queen [2011] VSCA 333, [27]; De Hollander v The Queen [2012] WASCA 127, [80]-[82]. In De Hollander, Buss JA observed:[10]The considerations which a sentencing court must take into account when fixing a non-parole period are the same as those applicable to the setting of the head sentence. However, the weight to be given to these factors, and the manner in which they are relevant, will differ in consequence of the different purposes underlying each function. … [Emphasis added.]It is to be observed that the sentencing Judge in the present proceeding appeared not to have had proper regard to the emboldened passages from the above extracted authorities. He reasoned:I have not ignored your personal circumstances in all of this, including your own injuries and how imprisonment will be a difficult environment for your health related issues. However, in my view, lesser weight is to be afforded to these matters in cases which cause the community so much grief and concern. [Emphasis added.]The sentencing Judge was unduly influenced by considerations which bore upon the fixing of a head sentence rather than on the minimum term.[10] De Hollander v The Queen [2012] WASCA 127, [82]. General deterrence is an important matter in regard to sentencing for offending against section 19A(3) of the Criminal Law Consolidation Act. The public should clearly understand that offences against section 19A(3) may lead to immediate terms of imprisonment. However, when determining the period that a defendant should spend in custody before being eligible to apply for release on parole, as members of the High Court have pointed out, differing weight may be given to a number of factors relevant to sentencing. The personal antecedents of a defendant and the community’s interest in the rehabilitation of the defendant are two factors of particular relevance.