R v Barnett

[2009] SASC 332

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v BARNETT

[2009] SASC 332

Judgment of The Court of Criminal Appeal

(The Honourable Justice Gray, The Honourable Justice Vanstone and The Honourable Justice Kourakis)

30 October 2009

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - OTHER MATTERS

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

Appeal against sentence - defendant and appellant charged with aggravated offence of causing death by dangerous driving - matter of aggravation blood alcohol reading - defendant pleaded guilty and was sentenced to term of imprisonment of four years and six months reduced to three years and four months on account of the plea of guilty - non-parole period of two years and eight months fixed - defendant disqualified from holding or obtaining a driver's licence for 12 years - whether judge erred in fixing mandatory minimum non-parole period of four fifths of head sentence - whether special reasons existed to fix a non-parole period lower than the mandatory minimum in circumstances.

Held:  (Gray J): appeal dismissed - factual matters for finding that special reasons exist to fix non-parole period shorter than prescribed minimum established - Court's unfettered discretion enlivened - Court entitled to fix non-parole period as it thinks fit - non-parole period of four fifths of head sentence appropriate in circumstances - notwithstanding error in Judge's approach to sentencing, no miscarriage of justice occasioned.

(Vanstone J): appeal dismissed - although pre-condition for the fixing of non-parole period less than prescribed minimum established, no room for reduction of non-parole period in circumstances - sentence imposed moderate in circumstances. 

(Kourakis J): appeal dismissed - relatively slight weight can be accorded to the prescribed matters in circumstances of case - no special reasons established - those prescribed matters not sufficient reason to depart from general rule established by the Criminal law (Sentencing) Act.

Criminal Law Consolidation Act 1935 (SA) 19A; Criminal Law (Sentencing) Act 1988 (SA) s 10, s 32 and s 32A; Criminal Law (Sentencing) (Dangerous Offenders) Amendment Act 2007 (SA) s 11, referred to.
Palling v Corfield (1970) 123 CLR 52; R v Ironside (2009) 104 SASR 54; Bugmy v The Queen (1990) 169 CLR 525; R v P (S) (1978) 5 RFL (2d) 118; Shrimpton v Commonwealth (1945) 69 CLR 613; P1 Contingency Landfill Site Cost Application (1991) 25 OMBR 385; Protean (Holdings) Ltd v Environment Protection Authority [1977] VR 51; Willett v Willett (1976) 9 ALR 470; In Re McCarthy [1975] 1 WLR 807; Giris Pty Ltd v Federal Commissioner of Taxation (1969) 119 CLR 365; Hoffmann v Waters (2007) 98 SASR 500; Roberts v Hopwood [1925] AC 578; Performing Rights Organization of Canada Ltd v Canadian Broadcasting Corp (1986) 7 CPR (3d) 433; Ross v Ross (1984) 39 RFL (2d) 51; R v Shrestha (1991) 173 CLR 48; R v Perre (1986) 41 SASR 105; R v Nemer (2003) 87 SASR 168; R v Stewart (1984) 35 SASR 477; R v Miller (2000) 76 SASR 151; Baker v The Queen (2004) 223 CLR 513; Baskerville v Martin [1967] SASR 156; Grassner v Frost [1940] SASR 295; Saturno v Dunsmore (1981) 28 SASR 4; Binnkamp v Keepes (1983) 32 SASR 255; Mercorella v Page (1975) 12 SASR 431; R v Von Einem (1985) 38 SASR 207; R v Buckman (1988) 47 SASR 303; Smith v Dixon (Unreported, Supreme Court of South Australia, Hogarth J, 2 March 1966); Lawrence v Baskerville [1968] SASR 86; Barwick v Crichton (1983) 43 SASR 142; Mitchell v The Queen (1996) 184 CLR 333; House v The King (1936) 55 CLR 499; Coombe v Bell (1985) 38 SASR 539; Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, considered.

R v BARNETT
[2009] SASC 332

Court of Criminal Appeal:       Gray, Vanstone and Kourakis JJ

GRAY J:

1. This is an appeal against sentence.

2. John Richard Barnett, the defendant and appellant, was charged with the aggravated offence of causing death by dangerous driving contrary to section 19A(1) of the Criminal Law Consolidation Act 1935 (SA).[1]  The circumstance of aggravation alleged was that, at the time of the offence, the defendant had a blood alcohol reading in excess of 0.08.  The offence occurred on 5 January 2007 at Strathalbyn.

   [1] Section 19A of the Criminal Law Consolidation Act 1935 (SA) relevantly provides:

   (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.

3. The defendant pleaded guilty on 14 November 2008 at the committal proceeding and was arraigned in the District Court for sentence.  On 16 February 2009, the defendant was sentenced to a term of imprisonment of three years and four months.  A non-parole period of two years and eight months was fixed.  When imposing the sentence, the Judge made a reduction of one year and two months on account of the defendant’s plea of guilty, contrition and remorse.  The defendant was disqualified from holding or obtaining a driver’s licence for a period of 12 years. 

4. When addressing the appropriate non-parole period, the Judge determined to fix the mandatory minimum non-parole period of four fifths of the head sentence.  In doing so, the Judge observed:

   Clearly, a sentence of imprisonment is warranted, and you have not sought to contend otherwise or that it ought to be suspended. Even so, your counsel has invited the court to consider the steps you have taken to rehabilitate yourself, in the context of personal deterrence, and to have regard to your early plea, your remorse, your work record, your general reputation and the support you have had, and continue to have, from those close to you, in fixing a non-parole period that is merciful.

   In that respect I am mindful of the fact that the offence to which you have pleaded is a serious offence against the person and that s.32(5)(ba) of the Criminal Law (Sentencing) Act requires that there be a mandatory non-parole period of four-fifths of the length of the sentence I impose. Your counsel has asked the court to consider whether there may be special reasons within the meaning of sub-s.(2)(b) of s.32A whereby a shorter non-parole period may be fixed. The special reasons relied upon are the matters I have discussed above.

   The prosecution has opposed that course, pointing to the maximum penalty for your offending, which is life imprisonment and mandatory licence disqualification for 10 years. In support of its opposition, it contended that there were a number of factors weighing against special circumstances. Whilst there was an early plea, it said your conviction was inevitable. It pointed to the evidence relating to speed and alcohol and, as well, to your antecedents. It noted that yours was not an offence at the lower end of the scale of seriousness and, inferentially, that a greater proportion of four-fifths might be considered. I was referred to the cases of R v Payne (2004) 89 SASR 49, R v Dundovic (2008) 255 LSJS 380, Pfeiffer v The Queen (unreported, SACCA, 11.12.1990, 680 of 1990) and R v Dawood (2002) 223 LSJS 19.

   I am mindful of the fact that the required non-parole portion is one established for an offence at the lower end of the range of seriousness, and it cannot be said that your offending comes within that description. That, however, does not preclude a finding of special reasons.

   I can, and do, take account of your early plea, your cooperation and your remorse, and I have considered the question of whether the victim’s conduct mitigated your offending. There is no doubt that he was also drunk and permitted you to use his car and, indeed, encouraged you to speed in it. Having said that, you were plainly aware that you, too, had had too much to drink and there is no suggestion that he encouraged you to attempt to make the right-hand turn at the speed and in the circumstances that you undertook it.

   I am not, therefore, persuaded that his conduct significantly mitigates your offending and nor am I satisfied, for any other reasons, that special reasons exist to reduce the non-parole period below the statutory proportion.

5. On appeal, it was submitted that the Judge erred in the exercise of his discretion pursuant to section 32A(3) of the Criminal Law (Sentencing) Act 1988 (SA) and that special reasons existed so as to render the non-parole period excessive in the circumstances. No challenge was made to the appropriateness of the head sentence.

6. On the day of the offence, the defendant and two friends met at the Strathalbyn Hotel.  The defendant’s two friends were brothers.  He travelled with one of the brothers to the hotel by taxi.  The other brother, who died as a result of the defendant’s offending conduct, drove to the hotel.  He arrived some two hours later.  The three men drank at the hotel until after midnight.  The defendant at the time of the offence had a blood alcohol reading of between 0.16 and 0.19.  The deceased’s reading at the time of death was 0.253, and his brother’s reading was 0.234.  It is clear that all three men were grossly affected by their consumption of alcohol.

7. When the three men left the hotel, they intended to go to the home of the deceased’s brother.  They intended to travel in the deceased’s motor vehicle.  The defendant asked if he could drive, and the deceased threw the car keys to him and sat in a rear passenger seat.  The deceased did not attach his seatbelt.  The deceased’s brother sat in the front passenger seat. 

8. The drive out of Strathalbyn was uneventful, but on leaving the town, the defendant accelerated.  The deceased encouraged the defendant, saying: “open her up and see what she can do.”  The defendant responded, reaching speeds of about 180km an hour.  The defendant approached a junction travelling at high speed, lost control of the vehicle and the vehicle left the road at a speed in excess of 100km an hour.  On leaving the road, the vehicle travelled into a nearby paddock and rolled over.  The deceased was thrown from the vehicle and died at the scene.  The deceased’s brother sustained minor injuries and the defendant suffered a number of injuries that rendered him unfit to work for some months.

9. At the time of the offending the defendant was 40 years of age.  He was born in New South Wales, educated to year 10 and came from a close and supporting family.  He undertook and completed an apprenticeship as a butcher and later worked as a truck driver and as a Gyprocker.  He then undertook and completed an apprenticeship in sheet metalwork and thereafter worked within the air-conditioning industry.  The Judge accepted that throughout his life, the defendant had been hardworking and industrious.  The defendant was not married, but had an 18-year-old son from a short-term relationship.  References were tendered which suggest that the defendant was well respected in the community.

10. The defendant has a history of alcohol abuse.  He was convicted for drink driving in New South Wales in 1986 and more recently in 2005 at Mt Barker.  His antecedent record discloses two convictions for the offence of culpable driving.  The defendant has lost his driver’s licence on at least four occasions and had only just regained his licence shortly prior to the present offending.  Since the time of the present offence, the defendant has attended Alcoholics Anonymous.  This has led to a significant improvement in his behaviour over the last two years.  The present offending and the death of his friend has had a profound impact on the defendant, and the Judge accepted that he lived every day with the consequences and associated shame. 

11. As earlier observed, it was acknowledged on appeal that the defendant’s offending conduct should have led to the imposition of an immediate term of imprisonment.  The issue on appeal was whether it was appropriate to fix a non-parole period at the mandatory minimum of four fifths of the head sentence.

    The Legislative Regime

12. Section 32(1)(a) of the Sentencing Act imposes a duty on a sentencing Judge to fix a non‑parole period.[2] 

    [2]Section 32(1)(a) provides:

    (1)Subject to this section, where a court, on convicting a person of an offence, sentences the person to imprisonment, the court must—

    (a)     if the person is not subject to an existing non-parole period—fix a non-parole period;

13. Mandatory minimum non-parole periods were introduced by the Criminal Law (Sentencing)(Dangerous Offenders) Amendment Act 2007 (SA) which came into operation on 1 November 2007.  This Act introduced amendments to the Sentencing Act with retrospective effect.[3] The amendments of relevance to the present proceeding were additions to section 32 of the Sentencing Act, and the introduction of a new section 32A. The new section 32(5)(ba) provides for the imposition of minimum non-parole periods:

    if fixing a non-parole period in respect of a person sentenced to imprisonment for a serious offence against the person, the mandatory minimum non-parole period prescribed in respect of the offence is four-fifths the length of the sentence;

    A “serious offence against the person” is defined by section 32(10)(d) to mean a major indictable offence (other than an offence of murder) that results in the death of the victim or the victim suffering total incapacity. If such injury, or death is caused, the mandatory minimum non-parole provisions are enlivened.

    [3]    Criminal Law (Sentencing)(Dangerous Offenders) Amendment Act 2007 (SA) section 11.

14. Section 32A provides for the circumstances in which the sentencing court may reduce or increase the prescribed minimum:

    Mandatory minimum non-parole periods and proportionality

    (1)     If a mandatory minimum non-parole period is prescribed in respect of an offence, the period prescribed represents the non-parole period for an offence at the lower end of the range of objective seriousness for offences to which the mandatory minimum non-parole period applies.

    (2)     In fixing a non-parole period in respect of an offence for which a mandatory minimum non-parole period is prescribed, the court may—

    (a)if satisfied that a non-parole period that is longer than the prescribed period is warranted because of any objective or subjective factors affecting the relative seriousness of the offence, fix such longer non-parole period as it thinks fit; or

    (b)if satisfied that special reasons exist for fixing a non-parole period that is shorter than the prescribed period, fix such shorter non-parole period as it thinks fit.

    (3)     In deciding whether special reasons exist for the purposes of subsection (2)(b), the court must have regard to the following matters and only those matters:

    (a)the offence was committed in circumstances in which the victim's conduct or condition substantially mitigated the offender's conduct;

    (b)if the offender pleaded guilty to the charge of the offence—that fact and the circumstances surrounding the plea;

    (c)the degree to which the offender has co-operated in the investigation or prosecution of that or any other offence and the circumstances surrounding, and likely consequences of, any such co-operation.

    (4)     This section applies whether a mandatory minimum non-parole period is prescribed under this Act or some other Act.

15. The defendant submitted that the discretion to fix a shorter non-parole period than the mandatory minimum was activated in the present proceeding.  It was argued that the defendant’s plea of guilty and his cooperation with the police and prosecuting authorities, each separately enlivened the discretion.  It was said that these factors amounted to special reasons and in the circumstances should have led the court to fix a shorter non-parole period.  It was acknowledged that a victim’s conduct could enliven the discretion, but this element was not pursued at trial or on the appeal.  However, this Court in reconsidering the matter is entitled to consider this factor if it thinks fit.

16. It is settled that a state parliament can legislate to require the imposition of a mandatory term of imprisonment.[4]  It follows that state parliaments have power to legislate with respect to mandatory minimum non-parole periods.[5] 

    [4]    Palling v Corfield (1970) 123 CLR 52.

    [5]    R v Ironside (2009) 104 SASR 54.

17. It is also settled that when interpreting statutory provisions, regard should be had to the relevant context. Section 32A forms part of the statutory regime of sentencing and is to be interpreted in that context together with other relevant provisions of the Sentencing Act.  Further, as French CJ observed in K-Generation,[6] it is appropriate to have regard to extrinsic materials as an aid to the proper interpretation of the provision and the ascertainment of the mischief which it sought to cure.[7]

    [6]    K-Generation Pty Ltd & Anor v Liquor Licensing Court & Anor (2009) 252 ALR 471 at [46]-[48].

    [7]    R v Ironside (2009) 104 SASR 54 at [121].

18. Another relevant canon of construction is that where possible, meaning is to be attributed to all the words appearing in the section.  Further, as the section would operate to erode existing rights, ambiguities in the legislation should be construed in such a way as would minimise any such erosion.

19. In Ironside[8] this court considered the circumstances that would enliven the court’s discretion to fix a shorter non-parole period than the mandatory minimum.  In the course of my reasons I discussed the principles of statutory construction relevant to the interpretation of the above provisions.  I traced the history of the amendments to these provisions and set out relevant extracts from the second reading speeches.  I concluded that the amendments when properly construed did not offend the Kable doctrine and that there was no relevant discrimination between those who pleaded guilty and those who pleaded not guilty.  The court in Ironside did not directly consider the issues arising on this appeal.

    [8]    R v Ironside (2009) 104 SASR 54.

20. A perusal of section 32A allows the conclusion that Parliament intended that in specified circumstances the court should impose a mandatory minimum non-parole period. The direction to the court in that respect is limited to those offences for which a mandatory minimum non-parole period has been prescribed. In the present proceeding, the offence of aggravated causing death by dangerous driving is such an offence.

21. In section 32A(1), Parliament set out to identify what a prescribed mandatory minimum non-parole period was to represent. Parliament provided that the period prescribed represents the non-parole period for an offence at the lower end of the range of objective seriousness for the subject offence. Parliament made no attempt to define what was meant by “the range of objective seriousness for [the subject offence]”.

1. Traditionally, courts, when considering the seriousness of an offence, have had particular regard to the criminal culpability involved in the offending conduct.  This process involves a consideration of subjective matters.  The phrase “objective seriousness for [the subject offence]” would appear to be a reference to the objective elements of the offence – the actus reus.  In the present case, this presumably would include the nature of the danger alleged; the level of alcohol in the defendant’s blood and the fact of the death.  To put it another way, the objective seriousness of the defendant’s offending, involves an assessment of drink driving associated with speed and the death of a passenger.  Presumably, other objective matters of relevance would include the conduct of the deceased in agreeing that the vehicle over which the deceased had control be driven by the defendant, the deceased’s participation in and active encouragement of the defendant to travel at an excessive speed, and finally, the deceased’s failure to wear a seatbelt.  The objective seriousness of this offence is markedly less serious than would be the case if an innocent bystander or passer-by had been killed.  Other circumstances of greater objective seriousness can be readily contemplated; for example, flight from police.

2. As noted, conventionally, non-parole periods are fixed having particular regard to all relevant circumstances, including subjective considerations. The circumstances of the offending are generally included within the concept of criminal culpability. Other subjective factors relate to issues of rehabilitation, health, family, antecedents and the other subjective matters or partly subjective matters identified in section 10(1) of the Sentencing Act.  It is to be observed that it is settled law that the same factors are to be addressed in determining a head sentence and when fixing a non-parole period, although it has been accepted that greater weight may be given to personal circumstances when fixing a non-parole period.[9]

   [9]    Bugmy v The Queen (1990) 169 CLR 525.

3. The identification of a prescribed period representing the non-parole period for an offence at the lower end of the range of objective seriousness indicates that only objective considerations are being addressed by the legislature at this point.

4. Section 32A permits the court to fix a non-parole period longer than four fifths in the event that the court is satisfied of specified matters. The section also provides the court with the discretion to impose a non-parole period less than the mandatory minimum. However, the court can only impose a lesser non-parole period if it is satisfied that special reasons exist to do so. Section 32A(3) limits the enlivening of the discretion to fix such lesser non-parole period to three circumstances that may broadly be described as follows: the victim’s conduct or condition substantially mitigating the offender’s conduct; a plea of guilty and the circumstances surrounding the plea; and cooperation with the investigation or prosecution by the defendant.

5. Section 32A requires the court, when reaching a decision as to whether special reasons exist, to have regard only to the above matters. Once satisfied that special reasons exist, section 32A directs the court to proceed to fix such shorter non-parole period as it thinks fit. The words “as it thinks fit” have a broad reach.

6. Judicial “discretion” has been defined generally to be a word of wide import. It has been said that the word implies the reaching of his personal conclusion by the judge whose duty it is to come to a decision, provided that the discretion is exercised in a judicial manner,[10] and not arbitrarily, capriciously or vaguely.[11]  A discretion to be exercised as the court or judge thinks fit has been described as the “widest discretion”.[12]  As Goff J observed in In Re McCarthy:[13]

   The words "as it thinks fit" appear to me to give the court the widest possible discretion and therefore, as a matter of law, in my judgment the section entitles the court, if it thinks fit in all the circumstances, not only to make an order for sale, hut an order that possession be delivered up to the trustee in bankruptcy.

   [10] R v P (S) (1978) 5 RFL (2d) 118 at 124 (Kimelman Sr. Prov J)

   [11] Shrimpton v Commonwealth (1945) 69 CLR 613 at 620; see also Re Durham (Regional Municipality) P1 Contingency Landfill Site Cost Application (1991) 25 OMBR 385 at 416.

   [12] See eg Protean (Holdings) Ltd v Environment Protection Authority [1977] VR 51 at 58 where Gillard J stated: “…this sub-section confers upon the Authority the widest discretion. It may impose such conditions, limitations or restrictions ‘as it thinks fit’.” See also Willett v Willett (1976) 9 ALR 470 where Barblett J stated: “By virtue of s 79(1), the court is empowered to make such order 'as it thinks fit'. This gives the widest possible discretion.”

   [13] In Re McCarthy [1975] 1 WLR 807.

7. In Giris Pty Ltd v Federal Commissioner of Taxation[14] Kitto J commented in the following manner on an authority given to the Commissioner of Taxation to have regard to certain matters “as he thinks fit”:

   …I think, that notwithstanding the specification in sub-s. (3) of s. 99A of some of the matters to which the Commissioner may have regard, the authority that is given him to have regard to such other matters, if any, as he thinks fit makes it extremely difficult for him or anyone else to know with any degree of certainty what really is the judgment that he is to form in a given case.

   These observations highlight the breadth of the discretion implicitly conferred by the words “as he thinks fit”.[15]

   [14] Giris Pty Ltd v Federal Commissioner of Taxation (1969) 119 CLR 365 at 379 – 380.

   [15] In Hoffmann v Waters (2007) 98 SASR 500 at [21] Debelle J observed that section 7(8) of the Wills Act which provides: “In determining an application under this section, the courts may make such incidental orders relating to costs or other matters as it thinks fit.” …clearly invests the Court with a wide discretion….

8. A discretion to be exercised “…as it may think fit…” was also examined in Roberts v Hopwood,[16] where Lord Wrenbury discussed the meaning of the word “fit”:[17]

   ... A person in whom is vested discretion must exercise his discretion upon reasonable grounds. A discretion does not empower a man to do what he likes merely because he is minded to do so - he must in the exercise of his discretion do not what he likes but what he ought. In other words, he must, by use of his reason, ascertain and follow the course which reason directs. He must act reasonably.

   Thirdly and lastly, I point to the word 'fit'. That word means, I think, 'fitting' or 'suitable'. The words 'as they think fit' do not mean 'as they choose'. The measure is not the volition of the person vested with the discretion, it is the suitability or adequacy or fitness of the amount in the reasonable judgment of the person vested with the discretion.

   These observations were adopted by the Canadian Federal Court of Appeal in Performing Rights Organization of Canada Ltd v Canadian Broadcasting Corp.[18]  The Macquarie Dictionary similarly defines “fit” as “well adapted or suited”, “to be adapted to or suitable for (a purpose, object, occasion, etc)” and “to be suitable or proper”.[19]

   [16] Roberts v Hopwood [1925] AC 578.

   [17] Roberts v Hopwood [1925] AC 578 at 613.

   [18] Performing Rights Organization of Canada Ltd v Canadian Broadcasting Corp (1986) 7 CPR (3d) 433 at 445.

   [19] Similarly, in the Canadian case of Ross v Ross (1984) 39 RFL (2d) 51 at 63 Matas J A discussed the use of the words “fit and just to do so” and considered the Oxford Universal Dictionary meaning for “fit”: “suited to the circumstances of the case, answering the purpose, proper or appropriate”.

9. Accordingly, a discretion to be exercised “as it thinks fit” is to be exercised in a manner that the judge or court, in the exercise of their discretion, considers appropriate in the circumstances.

10. Section 32A represents a significant fetter on what is otherwise a wide judicial sentencing discretion. As noted, the phrase “as it thinks fit” connotes a wide discretion. The use of these words and their import indicate that once the discretion in section 32A not to impose the prescribed minimum non-parole period is enlivened, sentencing is no longer to be guided by that provision. Instead, the judge or court is to sentence “as it thinks fit” utilising their discretion in accordance with conventional sentencing principles. Had Parliament intended to limit the discretion conferred by the phrase “as it thinks fit” in any way, it could have done so.

11. Having regard to the above discussion, the process provided by section 32A may be described in the following way. The court is to determine whether factual circumstances that may give rise to special reasons and enliven the discretion have been established. Once so satisfied, the court is to determine whether it is satisfied that special reasons exist, having regard to those matters, and only those matters.[20] Having found special reasons to exist, the court, in its unfettered discretion, is to fix such shorter non-parole period “as it thinks fit”. The discretion is to be exercised having regard to the relevant legal authorities and in particular having regard to the matters identified in section 10 of the Sentencing Act.

    [20] See for example in R v Ironside (2009) 104 SASR 54 where the Court took the view that there had been cooperation with the prosecution, but it was of a minor nature and not such as to give rise to a special reason.

12. Against the background of the above observations, it is convenient to return to the circumstances in the present appeal.  The deceased’s conduct and condition mitigated the defendant’s conduct.  The deceased was the owner of the vehicle driven by the defendant in committing the offence and had control of the use of that vehicle.  As earlier observed, the deceased agreed that the defendant drive in circumstances when he must have been aware that the defendant was unfit to drive as a consequence of the consumption of alcohol.  The deceased was a rear seat passenger and he did not wear a seatbelt.  The deceased was also aware of the nature of the road and that it was a winding road.  The deceased encouraged the defendant to speed and used words to encourage the defendant to see how fast the vehicle would go.  Unsurprisingly in these circumstances, the defendant lost control and the vehicle left the road on a bend and overturned in a nearby paddock.  The force of the impact ejected the deceased from his unrestrained position such that his body came into contact directly with the ground, causing his death. 

13. It is to be observed that other aspects of the defendant’s conduct, and in particular, the danger presented to other members of the public, were not mitigated.  The gravity of the defendant’s conduct in relation to the death of the deceased was less serious than a circumstance where a passenger did not have control of the vehicle, did not encourage the speeding and wore a seatbelt.

14. The defendant pleaded guilty to the charge as soon as practicable and he cooperated with the prosecution in accepting all facts alleged. 

15. Having regard to the above, the factual matters for a finding that special reasons exist for fixing a non-parole period shorter than the prescribed minimum, have been established.  As a consequence, the Court’s unfettered discretion has been enlivened and the Court is entitled to fix a non-parole period that it considers appropriate.  However, notwithstanding the enlivening of the discretion to do so, the Court in its discretion is not bound to fix a non-parole period shorter than the prescribed minimum.

16. In failing to find the existence of special reasons and applying the prescribed mandatory minimum non-parole period of four fifths of the head sentence, the Judge erred in his approach to sentencing the defendant. However, it is my view, that the circumstances of the present proceeding were such, that absent section 32A and absent any mandatory minimum non-parole period, it would in any event have been appropriate to fix a non-parole period at or about four-fifths of the head sentence.

17. This was an extremely serious offence.  The defendant has an extensive record of drink-driving offences.  The defendant was the driver of the vehicle, he was heavily intoxicated and he drove at a dangerous speed, which conduct resulted in a death.  The defendant’s cooperation with the prosecution was to accept the unchallengeable and not to require proof of matters that he was unable to contest.  In these circumstances a non-parole period of four fifths of the head sentence is appropriate.  Notwithstanding the error in the Judge’s approach to sentencing identified above, having regard to the appropriateness of the sentence imposed, no miscarriage of justice was occasioned. 

18. I would dismiss the appeal.

    VANSTONE J:

    Introduction

19. The applicant pleaded guilty to causing death by dangerous driving, with a circumstance of aggravation.  In sentencing, the learned judge took a starting point of four and a half years imprisonment and reduced it to three years and four months on account of the plea of guilty.  He fixed a non-parole period of two years and eight months, being exactly four-fifths of the head sentence.

20. The sentence was imposed after 31 October 2007 and so amendments made to the Criminal Law (Sentencing) Act 1988 by the Criminal Law (Sentencing) (Dangerous Offenders) Amendment Act 2007 (No 27 of 2007) applied to it. Because the judge was sentencing the applicant for a “serious offence against the person”, as defined in s 32(10)(d), he was obliged to fix a mandatory minimum non-parole period of four-fifths of the length of the head sentence – s 32(5)(ba) – unless, either he was satisfied that a longer period was warranted, having regard to s 32A(2)(a), or he was satisfied that “special reasons” to fix a shorter period existed. Section 32A(3) provides a limited class of factors to which regard might be had in determining whether “special reasons” exist.

21. The applicant correctly pointed to his plea of guilty as being a matter which fell within that limited class of factors.  The applicant declined to rely on any conduct of the victim as amounting to a further such factor.  However, while acknowledging the plea, the judge found that there were no special reasons to reduce the non-parole period below the mandatory minimum.

22. The applicant asserts that the judge erred in his approach to the determination of whether or not there were “special reasons … for fixing a non-parole period … shorter than” four-fifths of the sentence.  The applicant also argues that the judge mistook the attitude of the prosecution to the question of whether special reasons existed and that this mistake could have affected his decision.  Permission to appeal on these grounds was refused by a judge of this court at an earlier hearing.

    Background

23. A court sentencing for a “serious offence against the person” may only fix a non-parole period shorter than the prescribed mandatory minimum non-parole period if it is satisfied that there are “special reasons” for doing so: s 32A(2)(b) Criminal Law (Sentencing) Act 1988. Section 32A(3) specifies three matters to which the court is to have regard in deciding whether special reasons exist. In essence, these are where the victim’s conduct or condition constitutes a mitigating factor, or where there is a plea of guilty by the offender, or co-operation by the offender in the investigation or prosecution of the offence. I shall refer to these as the “prescribed” matters or a similar term.

24. It is clear that there may be no finding of special reasons in terms of s 32A(2)(b) without the presence of a prescribed matter. But the presence of such a matter, though necessary, may not be sufficient.

25. The applicant’s first argument is that once such a matter is identified, the question of whether there are special reasons to reduce the non-parole period below the mandatory minimum is to be determined only by an evaluation of the mitigating effect of the prescribed matter.  To put the proposition differently, it is said that in considering a reduction, the wording of the section dictates that no countervailing factors, outside the prescribed matter, may be taken into account.

26. It is convenient now to set out the relevant provisions.

    32—Duty of court to fix or extend non-parole periods

    (1)     Subject to this section, where a court, on convicting a person of an offence, sentences the person to imprisonment, the court must—

    (a)if the person is not subject to an existing non-parole period—fix a non-parole period; or

    …

    (5)     The above provisions are subject to the following qualifications:

    …

    (ba)if fixing a non-parole period in respect of a person sentenced to imprisonment for a serious offence against the person, the mandatory minimum non-parole period prescribed in respect of the offence is four‑fifths the length of the sentence;

    …

    (10)   For the purposes of this section—

    …

    (d)     a serious offence against the person means—

    (i)a major indictable offence (other than an offence of murder) that results in the death of the victim or the victim suffering total incapacity; or

    (ii)a conspiracy to commit an offence referred to in subparagraph (i); or

    (iii)aiding, abetting, counselling or procuring the commission of an offence referred to in subparagraph (i); and

    …

    32A—Mandatory minimum non-parole periods and proportionality

    (1)     If a mandatory minimum non-parole period is prescribed in respect of an offence, the period prescribed represents the non-parole period for an offence at the lower end of the range of objective seriousness for offences to which the mandatory minimum non‑parole period applies.

    (2)     In fixing a non-parole period in respect of an offence for which a mandatory minimum non‑parole period is prescribed, the court may—

    (a)if satisfied that a non-parole period that is longer than the prescribed period is warranted because of any objective or subjective factors affecting the relative seriousness of the offence, fix such longer non-parole period as it thinks fit; or

    (b)if satisfied that special reasons exist for fixing a non-parole period that is shorter than the prescribed period, fix such shorter non-parole period as it thinks fit.

    (3)     In deciding whether special reasons exist for the purposes of subsection (2)(b), the court must have regard to the following matters and only those matters:

    (a)the offence was committed in circumstances in which the victim's conduct or condition substantially mitigated the offender's conduct;

    (b)if the offender pleaded guilty to the charge of the offence—that fact and the circumstances surrounding the plea;

    (c)the degree to which the offender has co‑operated in the investigation or prosecution of that or any other offence and the circumstances surrounding, and likely consequences of, any such co‑operation.

    Analysis

27. In my view the applicant’s first argument must fail.  I say so for two reasons.  First, it overlooks the wider purposes of fixing a non-parole period and the rationale for fixing a non-parole period which is longer, or shorter, than the mandatory minimum.  The principles which govern the fixing of a non-parole period were discussed by Doyle CJ (with whose reasons Kourakis J agreed) in R v Ironside [2009] SASC 151 at [24]-[27]. He referred (citing R v Shrestha (1991) 173 CLR 48 at 68-69) to the principle that all factors bearing on the sentencing process are relevant at each stage of that process. The Chief Justice also analysed the impact which the new provisions might be expected to have on the process of determining a non-parole period: [28]-[49]. In particular, the Chief Justice said (at [38]:

    … the prescribed period is identified as a yardstick or benchmark. It is appropriate for an offence of the relevant kind at the lower end of the range of objective seriousness. Any aspects or circumstances of the particular offence that are referred to in s 32A(2) then have to be identified, and in light of those matters the particular offence has to be compared with the benchmark or yardstick, with a view to deciding whether the particular offence, in light of that comparison, warrants a non-parole period equal to, longer than or shorter than the prescribed period.

    The discussion did not explicitly take in the particular point now raised.

1. However, while the differences between the old and new regimes must be acknowledged, it remains true that the punitive, protective and rehabilitative purposes of fixing a non-parole period are constant under either one.  In essence, the sentencing process for serious offences against the person remains much as it is in respect of other offences:  all relevant factors are weighed and balanced.  The new provisions both fix a floor, or a minimum ratio which the non-parole period is to bear to the head sentence, and link that minimum ratio to offences at the lower range of objective seriousness for those offences.  As Kourakis J observed in Ironside at [179] the amendments, where they apply, will result in “… a smaller variation around a higher benchmark …”. By contrast, if the changes were to be interpreted in the manner advocated by the applicant, the result would be a fragmentation and distortion of the sentencing process – or at least that part of it concerned with the fixation of the non-parole period – such that the factors enumerated in s 32A(3) would be extracted from their context and, potentially, elevated beyond their true importance.

2. Second, having identified a s 32A(3) matter, the issue becomes whether its force is such as to justify a reduction from the mandatory minimum non-parole period otherwise to be fixed for the offending under consideration. The exercise involves a consideration of making a reduction from the mandatory minimum. That requires an evaluation of the prescribed matter, in the context of the non-parole period which would otherwise have been fixed. The non-parole period would otherwise have been fixed, having regard to all relevant factors, both objective and subjective, including the prescribed matter. In my view, in practical terms, special reasons to reduce the mandatory minimum non-parole period will only be found where, in the court’s evaluation of the matter as a whole, the court was prevented by s 32(5)(ba) from fixing a non-parole period which constituted a proportion of the head sentence less than four-fifths. In other words, only in circumstances where the court found itself constrained by s 32(5)(ba) from giving full weight to the prescribed matter, will the exercise result in a non-parole period bearing a lesser ratio to the head sentence than four-fifths.

3. In this case the sentencing judge found that the offending was not at the lower end of the range of seriousness for offences of this type. Such an assessment was plainly correct. The offence was committed while the applicant was extremely intoxicated. Evidence before the judge suggested that the actual blood alcohol level was between 0.16 and 0.19 per cent. It was this factor which was the circumstance of aggravation. Also, the manner of driving was quite appalling. The applicant reached very high speeds in the period leading up to the loss of control of the vehicle. I do not consider that the fact of the early plea of guilty, or any other mitigating factor, could have operated to reduce the applicant’s culpability to a level where it could be referred to as “at the lower end of the range of objective seriousness” for such offences. That is the expression used in s 32A(1). Such offences attract the mandatory minimum non-parole period. Added to that, the applicant had an extremely poor driving record, including drink-driving offences.

4. I consider that a proper assessment of the seriousness of the offence could well have led the judge to fix a non-parole period greater than the mandatory minimum. He was not asked to do so by counsel for the prosecution and no particular complaint about this aspect of his approach was made during the argument upon the appeal. I draw attention to this matter only because it seems to me that where, having considered all relevant matters, a sentencing judge determines that the offending is not at the lower end of the range, then there is no occasion to consider whether special reasons exist for fixing a non-parole period shorter than the mandatory minimum. The only question is, under s 32A(2)(a), whether a longer period is called for.

5. It is plain from the structure and scheme of these provisions that Parliament’s aim was not to elevate the significance of the three matters identified in s 32A(3). Rather, the Parliament’s intention was that non-parole periods should not be reduced below a certain level, without a justification founded in one or more of those factors.

6. I turn then to the second ground argued by the applicant.  This complaint raised an apparent misapprehension by the sentencing judge of the prosecution’s position as regards “special reasons”.  It is true that the judge incorrectly elevated the stance of counsel for the prosecution to one of contesting the existence of “special reasons”.  In fact, while counsel pointed to some of the more serious features of the crime, the position taken was one of neutrality as to whether one or more prescribed matters should be considered to be “special reasons”.

7. I do not consider that any such misapprehension had any impact on the sentencing process.  For one thing, the attitude of prosecuting counsel, however accommodating, in no way binds the court:  R v Perre (1986) 41 SASR 105; R v Nemer (2003) 87 SASR 168. But also, accepting the judge’s assessment of the seriousness of the offence, the only live issue arising under s 32A was whether the non-parole period should have been increased from the mandatory minimum. While the applicant could claim in his favour at least one of the pre-conditions for the exercise described by s 32A(2)(b), there was no room for a reduction of the non-parole period.

   Conclusion

8. In my view, the sentence imposed was, in all respects, moderate.  Because the application raises a matter of importance relating to the operation of important new legislation, I would grant permission to appeal, but I would dismiss the appeal.

   
   

   KOURAKIS J

9. The applicant pleaded guilty to aggravated causing death by dangerous driving.[21] The offence was an aggravated offence because the applicant’s blood alcohol concentration exceeded 0.08 percent; at the time of the offence it was between 0.16 percent and 0.19 percent. He was sentenced to imprisonment for four years and six months. A non-parole period of two years and eight months was fixed. The non-parole period so fixed was the mandatory minimum non-parole period of four-fifths of the head sentence prescribed by s 32(5)(ba) of the Criminal Law (Sentencing) Act 1988 (the Act).  The offence attracted the mandatory minimum non-parole period because the offence of aggravated cause death by dangerous driving is a major indictable offence.[22]

   [21] Criminal Law Consolidation Act 1935 s 19A(1).

   [22] Pursuant to s 32(10)(d)(i) of the Criminal Law (Sentencing) Act 1988, s 32(5)(ba) of that Act applies to major indictable offences that result in the death or total incapacity of the victim.

10. The applicant seeks permission to appeal against the non-parole period. There is no permission sought to appeal against the head sentence. The applicant complains that the Judge erred in failing to find that there were special reasons pursuant to s 32A(3) of the Act to fix a non-parole period lower than the mandatory minimum. In particular, the applicant contends that the existence of special reasons is to be determined exclusively by reference to the three matters prescribed by that sub-section, which are: mitigation arising out of the victim’s conduct, the offender’s guilty plea and his co-operation with police (the prescribed matters). For the reasons that follow, that submission should be rejected. Special reasons exist when, either alone or in combination, the prescribed matters justify a reduction of the mandatory minimum term when weighed against all the circumstances of the offence. On the facts of this case the prescribed matters fail to do so and for that reason I would grant permission to appeal, but I would dismiss the appeal.

    The Offence

11. The offence occurred just after midnight on 5 January 2007.  On 4 January 2007, the applicant, who was at the time aged 40, travelled by taxi with Nathan Siddall to a hotel in Strathalbyn.  Nathan Siddall was aged 27.  His younger brother, Michael Siddall, who was aged 25, joined them later.  He had driven to the hotel in a 2004 Holden Commodore sedan which he had bought only about four months earlier.  They all drank a large amount of alcohol.  Michael’s blood alcohol concentration was later determined to be 0.253 percent and Nathan’s 0.234 percent.

12. The applicant has no recollection of the events of that evening.  Nathan Siddall recalled in a statement that he gave to police that they left the hotel just after midnight.  According to another patron of the hotel, as the three men were leaving the hotel, the applicant asked Michael if he could drive the Commodore.  Michael threw him the keys, and then sat in a rear seat.  Nathan sat in the front passenger seat.  The drive was initially uneventful.  According to Nathan, as they approached the town limits of Strathalbyn, Michael encouraged the applicant to “open her up and see what she can do”.  The applicant accelerated to a speed of 180 kilometres per hour.  He continued to drive at that speed until the car approached the junction of Callington and Bletchley Roads.  The applicant then took his foot off the accelerator but did not apply the brakes, or at least did not apply them with much force.  The applicant attempted to turn into Bletchley Road by suddenly pulling the steering wheel sharply to the right but at a point where it was far too late to take the turn safely.  The car careered off the road and into an adjacent paddock where it rolled on to its roof.  Michael Siddall, who had not been wearing a seatbelt, was thrown from the car and killed.

13. The applicant pleaded guilty at the conclusion of the committal proceedings in the Magistrates Court.  He was committed to the District Court for sentence.

14. The applicant was educated to year 10 level in New South Wales.  He completed an apprenticeship as a butcher but then worked for many years in the building industry in Sydney.  The applicant moved to Strathalbyn with his parents when building work declined in Sydney, in about the year 2000.  He found work with a construction company and was employed at the time of the offence.  He did not work for several months thereafter because of injuries which he had sustained in the incident, but he subsequently found work as a truck driver.  References from the applicant’s employers spoke highly of him.

15. The applicant’s driving record was bad.  In 1986 he was convicted in New South Wales of driving with the prescribed concentration of alcohol.  He was convicted of the same offence in the Mount Barker Magistrates Court in June 2005.  The applicant also had convictions in New South Wales for culpable driving and exceeding the speed limit.

    The Appeal

16. The applicant’s primary contention concerns the scope of the matters that may be taken into account in deciding whether to fix a non-parole period below the mandatory minimum.  However, it is more convenient to deal first with a subsidiary ground.  The applicant complains that the Judge erred in finding that the prosecution opposed his submission that there were special reasons to fix a non-parole period below the mandatory minimum.  It is true that the Judge recorded in his sentencing remarks that the prosecution opposed that submission.  On this application the Director of Public Prosecutions accepts that the Judge was mistaken in that respect.  The submission made to the Judge by counsel for the Director of Public Prosecutions was that it was a matter for him whether there were special reasons.

17. In my view the error is immaterial.  It is clear that the Judge did not regard the opposing stance, which he mistakenly thought the prosecution was taking, as, in itself, a relevant factor.  The Judge correctly observed that the prosecution had submitted that, notwithstanding the early plea, a conviction was almost inevitable.  The Judge also correctly recorded that the prosecution had made submissions to the effect that the speed at which the applicant drove, his blood alcohol concentration and his antecedents were important factors for his Honour to consider in sentencing.  The Judge did have regard to the substance of the prosecution submissions.  He was entitled, indeed obliged, to do so.  The prosecution’s attitude to sentence is, however, an irrelevant matter.  There is no indication that the Judge gave it any weight.  The reference to the prosecutor’s attitude was merely part of the Judge’s (admittedly mistaken) narrative of the sentencing submissions made by the prosecution and the accused.  I would refuse permission on this ground.

18. The applicant’s primary complaint is that the Judge had regard to matters other than the matters prescribed by s 32A(3) of the Act in determining whether or not there were special reasons to fix a non-parole period below the mandatory minimum. It was submitted that those circumstances included the applicant’s antecedents. However, insofar as the Judge had regard to the applicant’s personal circumstances, such as his good work record, that could only have been favourable to the applicant.

19. Of greater significance is the applicant’s complaint that in determining whether or not there were special reasons to reduce the mandatory minimum non-parole period, the Judge had regard to the objective circumstances of the offence, including the extreme speeds at which the applicant had driven and his gross intoxication.  The Judge also referred to the applicant’s bad driving record.  I am prepared to accept that, on a proper reading of the Judge’s remarks, he did have regard to those matters.  For the reasons that follow, he made no error in doing so.

    Mandatory minimum non-parole periods

20. Pursuant to s 32(1) of the Act, a court which sentences a convicted person to imprisonment must, subject to the other provisions of the section, fix such non-parole period as it considers appropriate. However, the latter discretion is limited by s 32(5) which relevantly provides:

    (5)     The above provisions are subject to the following qualifications:

    (a)     a non-parole period may not be fixed in respect of a person who is liable to serve a total period of imprisonment (or detention and imprisonment) of less than one year;

    …

    (ba)   if fixing a non-parole period in respect of a person sentenced to imprisonment for a serious offence against the person, the mandatory minimum non-parole period prescribed in respect of the offence is four-fifths the length of the sentence;

    (c)     a court may, by order, decline to fix a non-parole period in respect of a person sentenced to imprisonment if the court is of the opinion that it would be inappropriate to fix such a period because of—

    (i)the gravity of the offence or the circumstances surrounding the offence; or

    (ii)the criminal record of the person; or

    (iii)the behaviour of the person during any previous period of release on parole or conditional release; or

    (iv)any other circumstance.

21. The way in which the mandatory minimum non-parole period must be applied and the discretion of the Court to depart from it are controlled by s 32A of the Act which provides:

    32A—Mandatory minimum non-parole periods and proportionality

    (1)If a mandatory minimum non-parole period is prescribed in respect of an offence, the period prescribed represents the non-parole period for an offence at the lower end of the range of objective seriousness for offences to which the mandatory minimum non-parole period applies.

    (2)In fixing a non-parole period in respect of an offence for which a mandatory minimum non-parole period is prescribed, the court may—

    (a)     if satisfied that a non-parole period that is longer than the prescribed period is warranted because of any objective or subjective factors affecting the relative seriousness of the offence, fix such longer non-parole period as it thinks fit; or

    (b)     if satisfied that special reasons exist for fixing a non-parole period that is shorter than the prescribed period, fix such shorter non-parole period as it thinks fit.

    (3)In deciding whether special reasons exist for the purposes of subsection (2)(b), the court must have regard to the following matters and only those matters:

    (a)     the offence was committed in circumstances in which the victim's conduct or condition substantially mitigated the offender's conduct;

    (b)     if the offender pleaded guilty to the charge of the offence—that fact and the circumstances surrounding the plea;

    (c)     the degree to which the offender has co-operated in the investigation or prosecution of that or any other offence and the circumstances surrounding, and likely consequences of, any such co-operation.

    (4)This section applies whether a mandatory minimum non-parole period is prescribed under this Act or some other Act.

22. Those statutory provisions must be understood against the general principles established by this Court for fixing a non-parole period pursuant to s 32. The first step in fixing a non-parole period is to identify the minimum period which the defendant must spend in prison to satisfy the punitive, deterrent and preventative purposes of punishment.[23]  Next, it is necessary to consider the likelihood of the prisoner responding to parole, his or her prospects of rehabilitation and the prospects that the terms and conditions of parole will be observed.[24]

    [23] R v Stewart (1984) 35 SASR 477 at 477.

    [24]  R v Stewart (1984) 35 SASR 477 at 479.

23. In R v Miller,[25] Doyle CJ summarised the purpose of parole, by reference to several judgments of the High Court, in this way:

    [25] R v Miller (2000) 76 SASR 151.

    What is the purpose of a grant of parole?  The High Court has considered this question on a number of occasions.  While there have been some variations of emphasis, a fairly consistent view has been expressed in a line of decisions which includes Power v The Queen (1974) 131 CLR 623; Deakin v The Queen (1984) 58 ALJR 367; Bugmy v The Queen (1990) 169 CLR 525 and R v Shrestha (1991) 173 CLR 48. In Shrestha, Deane, Dawson and Toohey JJ conveniently drew together the principles that can be found in these cases. They said (at 67):

    ‘The basic theory of the parole system is that, notwithstanding that a sentence of imprisonment is the appropriate punishment for the particular offence in all the circumstances of a case, considerations of mitigation or rehabilitation may make it unnecessary, or even undesirable, that the whole of that sentence should actually be served in custody.’

    Having identified the basic theory of the parole system, they said (at 68) that:

    ‘the parole system allows for a review of the offender's case after he has actually served a significant part of a custodial sentence, for the purpose of deciding whether he should be released on parole at that stage.  At the time of that review, the reviewing authority should have available to it up-to-date information about the prisoner's conduct while in custody, his current attitudes, his present circumstances and the prospects of his rehabilitation in the community if he be released on parole.’

    Having explained the operation of the system, they then referred to the manner in which the decision to fix a non-parole period (the decision to be made by me) and the decision to release a prisoner should be made.  They said (at 68-69):

    ‘The fact that considerations of mitigation and rehabilitation will ordinarily found a decision that a prisoner be released on parole does not mean that they are the only considerations which are relevant to the question (for the sentencing judge) whether a convicted person should be eligible for release on parole at some future time or to the subsequent question (for the parole authority) whether the prisoner should be actually released.  All of the considerations which are relevant to the sentencing process, including antecedents, criminality, punishment and deterrence, are relevant both at the stage when a sentencing judge is considering whether it is appropriate or inappropriate that the convicted person be eligible for parole at a future time and at the subsequent stage when the parole authority is considering whether the prisoner should actually be released on parole at or after that time.  Thus, in Power v The Queen, Barwick CJ, Menzies, Stephen and Mason JJ drew attention to the fact that the legislative intent to be gathered from the terms of the parole legislation applicable in that case was to provide for possible mitigation of the punishment of the prisoner only when the stage is reached where ‘the prisoner has served the minimum time that a judge determines justice requires that he must serve having regard to all the circumstances of his offence’.  This approach has been consistently accepted in subsequent cases in this Court.  Except where it is inappropriate that a convicted person should ever be considered for release on parole, the sentencing judge must formulate an overall sentence, including a non-parole period, at the end of which the parole authority must determine, according to the circumstances which then exist, whether the offender should be released on parole.’ (references omitted)[26]

    [26] R v Miller (2000) 76 SASR 151 at 158-9.

1. It follows that the mandatory minimum non-parole period is properly to be understood as a legislative determination that for the generality of major indictable offences resulting in death or total incapacity, the minimum period that will satisfy the punitive and deterrent requirements of sentencing is four-fifths of the head sentence. It is for that reason that the Act provides, by s 32A(1), that the mandatory minimum represents the non-parole period for an offence at the lower end of the range of objective seriousness. For more serious offences, a non-parole period of four fifths may not satisfy the demands of justice. Of course, in fixing a higher non-parole period than the mandatory minimum, the prospects for rehabilitation must also be considered in the way explained by King CJ in R v Stewart.[27]

   [27] (1984) 35 SASR 477 at 479.

2. In the context, therefore, of the principles established by this Court for fixing a non-parole period, the statutory minimum is a floor fixed by Parliament which underpins the discretion conferred by s 32(1) of the Act. It is also a benchmark or yardstick[28] against which longer non-parole periods and, where there are special reasons for fixing them, shorter non-parole periods must be measured.

   [28] R v Ironside (2009) 104 SASR 54 at 63, [34] and 64, [42] per Doyle CJ; at 54, [179]-[180] per Kourakis J.

3. When s 32A is considered in the context of the principles to which I have referred, it is plain that a finding of special reasons by reference to the matters prescribed by s 32A(3) of the Act is not an abstract question. The discretion to fix a non-parole period below the mandatory minimum is not enlivened by the mere existence of one or more of the prescribed matters, nor even by a finding that there is something special about the prescribed matters in the facts of the particular offence for which a non-parole period is being fixed. Rather, the Court can only fix a non-parole period below the mandatory minimum if it is satisfied that “special reasons exist for fixing a non-parole period that is shorter than the prescribed period” (emphasis added). Combining sub-sections (2) and (3) of s 32A, the relevant question for the sentencing Court is whether, having regard to the mitigating circumstances in which the offence was committed, the plea of guilty and the degree of co-operation, there is special or sufficient reason to allow an exception to the prescribed benchmark in the particular case. It could hardly be otherwise. The prescribed matters cannot be weighed in a vacuum. Indeed, s 32A(3) expressly directs that the Court is to have regard to the prescribed matters “for the purposes” of considering whether special reasons exist to fix a shorter non-parole period than the mandatory minimum.

   Special Reasons

4. The statutory expedient of enacting a general rule, but conferring on sentencing courts a discretion to depart from it where special reasons exist, is well known in this State.  It is a salutary practice which acknowledges that as much as there may be good reasons for the general rule, circumstances may arise in which it would work unjustly and oppressively.[29]  In those cases, the Court is given a discretion to ameliorate the standard punishment that would otherwise apply.  The discretion is narrowly confined and is not to be exercised according to subjective views about what is just or oppressive.  Rather, whether there is special reason to depart from the general rule must be informed by the objects of the provision and the mischief to which the enactment of the rule was directed.  It is for that reason that the decisions of this Court on similar provisions have often defined the existence of special reasons by reference to circumstances that must have been beyond the contemplation of Parliament.  Those decisions have, for that reason, sometimes defined special reasons in terms of circumstances which are exceptional or extraordinary.[30]

   [29] In Baker v The Queen (2004) 223 CLR 513 at 523, Gleeson CJ noted:

   There is nothing unusual about legislation that requires courts to find ‘special reasons’ or ‘special circumstances’ as a condition of the exercise of a power.  This is a verbal formula that is commonly used where it is intended that judicial discretion should not be confined by precise definition, or where the circumstances of potential relevance are so various as to defy precise definition. (reference omitted)

   [30] See also the remarks made by Callinan J in Baker v The Queen (2004) 223 CLR 513 at 573, [173]-[174].

5. In Baskerville v Martin,[31] Bray CJ considered the meaning of the term “special reasons” in s 102 of the Motor Vehicles Act 1959. Section 102 fixed a minimum fine and period of disqualification for driving without third party insurance. Section 102(2)(i) provided that, in the case of a first offence, “if the court for special reasons thinks fit to do so” it may impose less than the statutory minimum. Bray CJ approached the issue in this way:

   What then are special reasons?  They cannot, in my view, be exhaustively enumerated.  All that can be said at large is that special is the antithesis of general; Whittall v Kirby per Lord Goddard CJ; and that Parliament was contrasting reasons which are special with reasons which are general.  Lines v Hersom.  Nothing which is a common or usual factor in the ordinary typical case can constitute a special reason.  There must be something extraordinary, unusual or atypical.  This has often been said before.  Perhaps it cannot be put better than it was put by Napier J, as he then was, in Gassner v Frost, that there must be something ‘clearly distinguishable from the general run of the cases that Parliament had in mind when it provided for the penalty of disqualification’.[32]

   [31] [1967] SASR 156.

   [32] Baskerville v Martin [1967] SASR 156 at 160-1. Bray CJ went on to reject the contention that the special reason must be found in the circumstances of the offence and not the antecedents of the offender. The description of the special reasons adopted by Bray CJ in Baskerville was applied by Mitchell J in Saturno v Dunsmore (1981) 28 SASR 4 at 8 and again in Binnkamp v Keepes (1983) 32 SASR 255 at 258.

6. In Gassner v Frost,[33] Napier J also explained that special reasons “must refer to some facts, or circumstances, which justify the Court in treating the case as one which falls outside the ordinary purview of the section”.[34]

   [33] [1940] SASR 295.

   [34]  Gassner v Frost [1940] SASR 295 at 298. See also Walters J in Mercorella v Page (1975) 12 SASR 431.

7. Properly understood, there is no tension between the passage from the judgment of Bray CJ in Baskerville v Martin that I have just cited and the following remarks of Doyle CJ in R v Ironside:[35]

   I mention here that I consider that ‘special reasons’ must mean sufficient reasons.  I do not consider that ‘special reasons’ should be read as requiring not only the presence of one or more of the identified matters, but also that there be something exceptional or out of the ordinary about the case.[36]

   [35] (2009) 104 SASR 54.

   [36] R v Ironside (2009) 104 SASR 54 at 65, [52].

8. In my respectful opinion, in that passage Doyle CJ was correctly explaining that the discretion conferred by s 32A(2)(b) should not be replaced by a search for something “exceptional” or “extraordinary” which is unconnected to the purpose for which the discretion is conferred. The concept of sufficient reasons necessarily imports the idea of weighing the prescribed matters against the circumstances of the offence and the offender.

9. Given the very nature of a non-parole period explained in the passages I earlier extracted from Miller, it is difficult to see how anything else could have been intended by the legislature in enacting s 32A of the Act.

10. Consistently with that view, I understand the references in the following passages of the reasons of Doyle CJ in Ironside to the obligation to have regard only to the prescribed matters to be addressed to the limited circumstances which can be weighed in the defendant’s favour against all of the other circumstances of the offence:

    [46]Then the court must direct its attention to s 32A(2)(b) and to s 32A(3). The court can now consider only the matters referred to in s 32A(3).

    …

    [48]Once again there is a difficulty in making the relevant comparison. One is not comparing like with like. The difficulty is increased by the fact that the court must engage in the unfamiliar task of arriving at a putative or possible non-parole period by reference only to the limited matters identified in s 32A(3), rather than by reference to all of the circumstances (subjective and objective) that would usually be relevant.[37]

    [37] R v Ironside (2009) 104 SASR 54 at 65, [46], [48].

11. So understood, the approach of Doyle CJ in Ironside is, in my respectful opinion, consistent with the tests proposed by Napier J and in particular the proposition from Gassner that I earlier cited. A “sufficient” reason, to use the expression preferred by Doyle CJ, is one that, in accordance with the test propounded by Napier J, justifies the treatment of the particular matter as one which falls outside the rule. Whether the reasons are sufficient for that purpose is left to the discretion of the Court. However, that discretion must be approached on the basis that the only matters that are capable of justifying the different treatment are those prescribed by s 32A(3). Special reasons will exist when one or more of the prescribed matters effectively negate the apparent justification for the general rule.

12. The outline of the approach I have sketched is consistent with the approach taken to other sentencing discretions defined by reference to special reasons.  In R v Von Einem,[38] King CJ considered the discretion in s 65(1) of the Correctional Services Act 1982 not to fix a non-parole period where there was special reason not to do so.  He said:

    It is unnecessary, and perhaps undesirable, for the Court to endeavour to explore exhaustively the circumstances which might amount to special reason under the section.  Generally speaking, in my opinion, special reason for not fixing a non-parole period will be found through a prisoner’s record, and in particular his record of failure to respond to bonds, suspended sentences and parole in the past, lead reasonably to the conclusion that he would be unlikely to respond to parole in a positive way.[39]

    [38] (1985) 38 SASR 207.

    [39] (1985) 38 SASR 207 at 221. See also Flentjar v Wright (1986) 42 SASR 246.

13. In R v Buckman,[40] the Full Court considered the power to reduce the period of imprisonment activated on the revocation of an earlier suspension of that imprisonment pursuant to s 9(6) of the Offenders Probation Act 1913.  King CJ observed that in the context of that section:

    The special circumstances which must exist to authorise a reduction, must therefore be such as render the original sentence inappropriate for that offence in the special circumstances now existing.  The probative court must be able to say that if those circumstances, which I should think would almost always be circumstances personal to the offender, had existed at the time of the passing of sentence, the sentence imposed would have been thereby rendered inappropriate.  It cannot be too strongly emphasised that where a suspension is revoked, the consequence, in the absence of special circumstances so understood, is that the offender is ordered to serve the sentence which the original court judged to be proper.  Subsection (6) exists to enable the probative court to avoid the injustice of activating a sentence the length of which has been rendered oppressive or inappropriate by subsequent circumstances of a special nature.[41]

    [40] (1988) 47 SASR 303.

    [41] R v Buckman (1988) 47 SASR 303 at 304.

14. The common idea in both passages is that in the special circumstances of the particular case, the application of the general rule would not advance the purpose of its enactment.

    Discretion or Evaluative Judgment

15. In Baskerville v Martin, Bray CJ adopted a two stage approach suggested by Hogarth J in Smith v Dixon.[42]  Hogarth J had identified two elements in the special reasons provision; first there must be a finding of special reasons; then the Court must “think fit” because of the special reasons to mitigate the penalty.  Bray CJ observed that the two stage approach had an air of artificiality, but nonetheless he thought that the words “think fit” conferred a discretion that was enlivened on a finding of special reasons.[43]  That approach was confirmed by Bray CJ in Lawrence v Baskerville:[44]

    If then there must be something extraordinary, unusual or atypical outside the general run of cases, it is obvious that many cases involving hardship and claiming sympathy will fail to qualify.  And conversely there may well be cases where the unusual element exists, but which are not particularly meritorious.  In such cases a Court could, and probably, in my view, should, find that there are special reasons, but not ones upon which it thinks fit to act.  If a man proves, for example, that he has been engaged to drive a mechanical elephant, falling within the definition of a motor vehicle, down King William Street in a pageant, and that he would be unable to do this if he were disqualified or that he had sent the cheque for the renewal of the premium to the insurance company by carrier pigeon which had gone astray, these might well constitute special reasons because they would be sufficiently out of the general run of cases, but in the absence of anything more they would probably not be reasons on which the Court would think fit to act.  The discretion would exist, but it would probably not be proper to exercise it.

    …

    Does it follow that the Courts can take no account of the altered situation?  Not if my division of the problem into two parts, first the finding of special reasons, then the exercise of a discretion to act on them or not, is correct.  Ex hypothesi it seems to me the new scheme for the satisfaction of persons injured by uninsured drivers cannot be relevant to the existence of the discretion because it is not a special reason, but I can see no reason why it should not be relevant to its exercise, once special reasons are found elsewhere.[45] (references omitted)

    [42] (Unreported, Supreme Court of South Australia, Hogarth J, 2 March 1966).

    [43] Baskerville v Martin [1967] SASR 156 at 159-160.

    [44] [1968] SASR 86.

    [45] Lawrence v Baskerville [1968] SASR 86 at 88-89.

16. In the same case, Chamberlain J observed that it is not always useful to divide what is really one question into two, but thought it was necessary to do so in the case of s 102 of the Motor Vehicles Act 1959 because whether the reasons advanced for the reduction of the minimum penalty are special is a matter of law, and the fixing of the penalty itself is a matter of discretion.[46]

    [46] Lawrence v Baskerville [1968] SASR 86 at 93.

17. The two stage approach has since been universally followed in applications pursuant to s 102 of the Motor Vehicles Act 1959.  Many of the decisions on the special reasons power conferred by that section were usefully collected by Cox J in Barwick v Crichton.[47]

    [47] (1983) 36 SASR 142 at 145-146. See also Schulz v Mill (1984) 37 SASR 41 at 45; Sullivan v Hillman (1986) 43 SASR 181 at 184.

18. In a sense, two steps are also involved in the application of s 32A(2)(b). The first is the decision that there are special reasons to fix a shorter non-parole period than the mandatory minimum. The phrase “if satisfied that special reasons exist” suggests an evaluative judgment. On the other hand, the language of s 32A(3) suggests a discretionary balancing. I find the distinction between discretionary and evaluative judgments elusive. Nonetheless, the power conferred by s 32A(2) bears sufficient similarity with the power considered by the High Court in Mitchell v The Queen[48] for me to hold that it involves an evaluative judgment rather than a discretion.  The consequence is that on an appeal against a finding of special reasons, or equally a failure to find special reasons, it is for the Court of Criminal Appeal to decide, for itself, subject only to any particular factual findings of the sentencing Judge that are not attended by error, whether or not there is sufficient reason to set a lower non-parole period.  The limits applicable to an appeal against a discretionary judgment explained in House v The King[49] do not restrict appellate review of a decision made under s 32A(2).

    [48] (1996) 184 CLR 333.

    [49] (1936) 55 CLR 499.

19. In my view, however, s 32A(2) must be read as an “all embracing combination of words”.[50] The question is not just whether there are “special reasons”. If the question is posed in that way it is devoid of both legal and grammatical meaning. The word “reasons” means, in the context of s 32A(2)(b), grounds or causes for action. The relevant question is therefore in the words of the subsection; whether “special reasons exist for fixing a non-parole period that is shorter than the prescribed period”.  I cannot accept that it is logically possible to find that special reasons exist, but then exercise the discretion to fix a non-parole period equal to, or higher than, the mandatory minimum.  Nor can I see any utility in engaging in the mental gymnastics that such an approach appears to demand.  As the High Court explained in Mitchell v The Queen,[51] the word “may” is often used to both indicate the conferral of a power and the circumstances in which it is to be exercised.  For those reasons, the theoretical possibility adverted to by Bray CJ in Baskerville, in the context of s 102 of the Motor Vehicles Act 1959, of a court finding special reasons but exercising its discretion not to reduce the minimum penalty should not, in my view, be accepted for the purposes of s 32A of the Act.

    [50] Coombe v Bell (1985) 38 SASR 539 at 548.

    [51] (1996) 184 CLR 333 at 345-6.

20. One thing is relatively clear.  The prescribed matters cannot be considered as mere pegs upon which to hang the special reasons hat.  They must alone or in combination establish a persuasive case for departure from the general rule, by showing that the purpose of the rule will not be advanced by its application to the particular case.  In practice, therefore, one would only expect to find special reasons in the case of an offence which is at the very lower end of the range of seriousness and where, by reason of the prescribed matters, the imposition of the mandatory minimum would appear to be disproportionate and oppressive.

21. If the question whether there are special reasons to reduce the mandatory non-parole period is answered in the affirmative, then the next step is to determine the length of the non-parole period.  In exercising the discretion to “fix such shorter non-parole period as it thinks fit”, the Court must have regard to all of the circumstances ordinarily relevant to the fixing of a non-parole period.  However, the Court must also have regard to the benchmark established by the mandatory minimum.[52]  To do otherwise would lead to significant disparity between those cases where there are special reasons and those where the are not.  An approach which creates two quite distinct and disparate sentencing regimes, which are divided by a finding of special reasons, will inevitably engender a sense of grievance on the part of those who are without special reasons and should be eschewed.

    [52] Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24.

    No special reasons in this case

22. For all of the above reasons I would hold that it is not an error to balance the prescribed matters against the circumstances of the offence.

23. I turn now to apply the above principles to the circumstances of this case.  The first observation I make is that relatively little weight can be accorded to the prescribed matters on the facts of this case.

24. The applicant did not submit that the victim’s conduct substantially mitigated his conduct in the circumstances of this case.  The applicant was plainly right not to do so.  The applicant asked for the car keys.  It was the applicant who made the decision to drive, even though the victim consented to that course by handing over his keys.  Equally, it was the applicant who made the decision to drive, and must therefore take responsibility for driving, at such an excessive speed, notwithstanding the victim’s encouragement.  The applicant must also take responsibility for the fatal manoeuvre at the T-junction where he lost control.  The applicant’s moral culpability for those actions was in no way diminished by the victim’s conduct.  It is a sad and all too prevalent fact that offences of this nature are committed with the consent and sometimes encouragement of the victims.  For that reason, the victim’s conduct does not take this matter “outside the ordinary purview of the section”.  It is irrelevant that the victim’s conduct may have the consequence in civil proceedings that the victim’s damages, or the damages awarded to his or her family, may be reduced.  A control mechanism used in the civil law cannot, for that reason alone, be regarded as a mitigating circumstance.  The victim’s conduct in this matter, in my view, did not mitigate the applicant’s offending other than in the most trifling of ways.

1. The applicant pleaded guilty at the committal proceedings.  That is of itself not a remarkable circumstance; the prosecution case was a very strong one.  In enacting the general rule Parliament must have considered that it would apply to offenders who had pleaded guilty even at committal proceedings.  Offenders who plead guilty will receive a reduction in the head sentence.  The mandatory minimum will therefore apply to a lower sentence.  Nonetheless, I accept that the plea before committal to the District Court deserves significant consideration.  I am prepared to accept that the letter of apology and remorse sent by the applicant to the victim’s family can be considered as a surrounding circumstance.  However, I would not accord it great weight.

2. The matters relied on by the applicant as showing cooperation in the investigation in the prosecution of the offence are all encompassed by the plea of guilty.  For example, the reason that the applicant did not cross-examine witnesses, including the victim’s brother, was that he had pleaded guilty.  In any event, the applicant’s cooperation with the police was limited.  He answered those questions that he was required by law to answer but declined to be further interviewed by the police.

3. On the opposite side of the scales, the circumstances of this offence epitomise the offending at which the provision is directed.  Warnings about the dangers of driving after bouts of heavy drinking have been sounded often, loudly and for a long time.  Unfortunately, such offending continues to extract a high human cost.  The applicant is himself a repeat drink driving offender.  The offence here involved a fast car, driven by an offender who was grossly intoxicated, at a fast speed and while executing a dangerous turn.  The applicant’s criminal conduct is precisely the sort of mischief at which the mandatory minimum non-parole period, in its application to the offence of causing death by dangerous driving, was directed.

4. The relatively slight weight which can be accorded the prescribed matters in their application to this case is not sufficient reason to depart from the general rule established by the Act.

   Conclusion

5. I would dismiss the appeal.