R v Bennett - [2011] SASCFC 68

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v BENNETT
[2011] SASCFC 68
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Nyland and The Honourable Justice David)
24 August 2011
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - SENTENCING GUIDELINES
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS
Appeal against sentence – appellant pleaded guilty to aggravated driving without due care – two features of aggravation, viz death of cyclist and driving disqualified – breach of good behaviour bond imposed for prior drive disqualified offence – sentence of 15 months imprisonment for the drive disqualified cumulative on 8 months for aggravated driving without due care – non-parole period of 14 months – licence disqualification for 5 years cumulative upon previous disqualification of 2 years and 8 months.
Whether Judge erred by sentencing appellant for the drive disqualified offence on a mistaken factual basis – whether penalty imposed for the drive disqualified offence was manifestly excessive – no finding of contumacy – sentence imposed higher than prevailing sentencing standards.
Appeal allowed – sentence for drive disqualified offence reduced to a period of 7 months imprisonment to be served cumulative upon sentence of 8 months for offence of aggravated driving without due care – total sentence 15 months - non-parole period of 10 months – appellant resident in rural community with limited transport – licence disqualification particularly onerous with respect to future employment – appeal allowed to reduce disqualification to a term of 2 years to commence when the first period of disqualification of 2 years and 8 months expires.
Motor Vehicles Act 1959 s 91(5); Road Traffic Act 1961 (SA) ss 45 and 169B(1), referred to.
Police v Cadd (1997) 69 SASR 150; R v Gathercole [2001] SASC 248, distinguished.
Sadler v Crossman (1988) 47 SASR 331; Peart v Police [2003] SASC 274; Nash v Police [2009] SASC 112; Khammash v Police [1999] SASC 225; R, J v Police [2006] SASC 153; Nattrass v Police [2008] SASC 267; Police v Jachmann [2010] SASC 345; Jones v Police [2001] SASC 346, considered.

R v BENNETT
[2011] SASCFC 68
Court of Criminal Appeal: Doyle CJ, Nyland and David JJ

DOYLE CJ: I agree with the orders proposed by Nyland J. I agree also with the reasons for making those orders.
NYLAND J: This is an appeal against sentence. The appellant pleaded guilty to the offence of aggravated driving without due care which occurred at Minlaton on 5 March 2010 when the appellant’s motor car collided with a bicycle being ridden by Chris Hudson, thereby causing Mr Hudson’s death. At that time the appellant was disqualified from holding or obtaining a driver’s licence. The appellant was not charged with a separate offence of drive disqualified but that was alleged as a circumstance of aggravation.
Prior history
The appellant’s antecedent report discloses a number of prior driving offences.
-On 2 May 1994 he received a fine for an offence of drive with excess blood alcohol and he was disqualified from holding or obtaining a licence for a period of one year.
-On 20 July 1999 on a charge of drive under the influence he was fined and disqualified from holding or obtaining a driver’s licence for a period of 15 months.
-On 22 February 2000 the appellant was convicted of a further offence of driving with excess blood alcohol. He received a fine and he was disqualified from holding or obtaining a licence for a period of 39 months. On the same date for an offence of drive disqualified the appellant was sentenced to 14 days imprisonment.
-On 8 July 2008 the appellant was again convicted of an offence of drive with excess blood alcohol. He was fined and disqualified from holding or obtaining a driver’s licence for a period of 13 months.
-On 16 February 2010 for yet another offence of drive with excess blood alcohol committed on 26 September 2009 the appellant was fined and he was disqualified form holding or obtaining a licence for a period of 2 years and 8 months. On the same date the appellant was convicted of an offence of drive disqualified which had been committed on 19 November 2009. For that offence the appellant was released on an 18-month good behaviour bond which included the condition that he come up for sentence if he breached a condition of the bond.
The appellant breached the bond by the commission of the aggravated driving without due care offence on 5 March 2010. As a result, in addition to sentencing the appellant for the aggravated due care offence, the District Court Judge was obliged to sentence the appellant with respect to the drive disqualified offence committed on 19 November 2009.
Circumstances of offending
In his sentencing remarks the Judge described the circumstances of the appellant’s offending which resulted in the death of Mr Hudson as follows:
You were driving to start a job in a business at Yorketown. Your personal situation was that you say you did not have any friends or family who could take you there. You left home at about 6.10 – 6.15 am that morning. You were driving along the Yorketown-Minlaton road. It was still dark. That same morning, Chris Hudson, a very experienced and avid cyclist, got up to go for an early morning ride. He would ride nearly every day, sometimes twice a day. He would ride up to 500 kilometres per week. The bike he was riding on this day he had had for about a year. The odometer reading on it was 12,653 kilometres.
One of the questions that has arisen in this case is the degree of your failure to drive without due care. On your instructions, to which I will come in detail shortly, you passed an oncoming car and then felt the collision with Mr Hudson on his bike. You say you did not see him earlier on or at the time of impact.
Because you collided with him from behind, the rear lighting is of major importance. The front lighting still remains important because of the glow of the light coming from it and it provides some measure of the importance Mr Hudson placed on proper lighting.
The Judge then discussed the evidence concerning the form and adequacy of the rear lighting on Mr Hudson’s bike. He concluded that the preponderance of evidence supported a finding that the rear red light on the bike was flashing such that it could have been seen at a distance. The Judge therefore found that the appellant had been driving with a significant lack of due care, that Mr Hudson was there to be seen, was able to be seen and should have been seen and that the red flashing light should have alerted the appellant to Mr Hudson’s presence. The Judge then expressed the view that this was a case towards the upper end of driving without due care.
The Judge was mindful of the impact that Mr Hudson’s death had upon his family but remained conscious of the fact that this was a case of aggravated due care resulting in death and not causing death by dangerous driving.
Appellant’s personal details
At the date of sentence the appellant was aged 60 years. He was born on the Yorke Peninsula and had lived there all his life. He had left school in Year 9 when aged about 16 and worked on a farm. He married in about 1978 and had two sons. He had an involvement with two farming properties but got into financial difficulty in the late 1980s. Since that time the appellant had been working on various farming properties doing contract work. He had been active in the community both with the CFS at Marion Bay and the local football. He lived at his mother’s house on weekends and in a van on properties at which he worked during the week.
Sentencing remarks
The Judge said:
Returning to the offending, it must be said that there is no allegation of speeding, no alcohol and no erratic driving. You failed to drive with due care and see a cyclist who was readily visible at a distance on a straight stretch of road.
You have two previous convictions for driving under disqualification. The first, as I said, landed you in gaol for 14 days. The second resulted in a bond and now I must sentence you for that because this offending was a failure to be of good behaviour.
For the offending on 5 March 2010 there is no separate charge of drive under disqualification. Rather, it is a circumstance aggravating the offence of driving without due care.
It is appropriate to deal with the breach of bond first and sentence you for the drive disqualification committed on 19 November 2009 but dealt with on 16 February 2010. As mentioned, I will deal with you on the basis referred to by your counsel, which is not as serious as some, but you have, as I have said, prior convictions.
Sentence
The Judge imposed a sentence of 15 months imprisonment with respect to the drive disqualified offence committed on 19 November 2009. After allowing a reduction of 20 per cent for the appellant’s plea of guilty the Judge imposed a sentence of 8 months with respect to the aggravated driving without due care offence. The Judge ordered that sentence to be cumulative on the 15 months imposed with respect to the drive disqualified offence which made a total sentence of 23 months. He fixed a non-parole period of 14 months. The sentence and non-parole period were directed to commence from 14 February 2011, being the date on which the appellant had been taken into custody. He then ordered a licence disqualification for a period of 5 years to be cumulative upon the disqualification of 2 years 8 months, which had been imposed on 16 February 2010. That resulted in a total licence disqualification of 7 years and 8 months.
On appeal no issue was taken with respect to the sentence imposed for the aggravated due care offence, nor with the order for that sentence to be cumulative upon the sentence imposed with respect to the drive disqualified offence.
Appeal ground 1
Counsel for the appellant referred to the comment by the Judge in his sentencing remarks to the effect that the appellant had two previous convictions for drive disqualified. He submitted that in sentencing the appellant for the drive disqualified offence the Judge erred by sentencing on the mistaken factual basis that the appellant had two prior convictions for that offence, whereas on 19 November 2009 he only had one, namely that imposed on 22 February 2000.
In the course of sentencing submissions the appellant’s counsel conceded that the appellant had two previous convictions for drive disqualified at the time that he collided with Mr Hudson’s bike on 5 March 2010. I therefore consider that the Judge’s reference to “two previous convictions” of drive disqualified was made in the context of the aggravated due care charge, that being the third occasion on which the appellant had been driving whilst disqualified. It was understandable that the Judge treated the fact that this was the third occasion on which the appellant was driving disqualified as a significant matter of aggravation with respect to the due care charge.
The later reference by the Judge to the appellant having “prior convictions” in my opinion was not a reference back to the drive disqualified offences but rather to the more extensive driving history set out in the antecedent report. That showed that the appellant had been subject to orders for disqualification of licence on five separate occasions prior to 5 March 2010, in addition to five convictions for alcohol-related driving offences between 1994 and 2009. In my opinion this ground of appeal fails.
Appeal ground 2
The second ground of appeal is a complaint that the penalty imposed for the drive disqualified offence was manifestly excessive. On 19 November 2009 as a result of his prior conviction, the appellant was liable to be imprisoned for a maximum period of 2 years.[1] In his remarks, the Judge did not refer to the circumstances surrounding the driving on 19 November 2009, but appears to have accepted the factual basis put forward by the appellant’s counsel in sentencing submissions. Counsel told the Court that on the day in question the appellant was heading to the Curramulka fires. His property was in the vicinity of the fires and his personal property and his dog were both at the property. The appellant had no other means of reaching his home to retrieve his belongings or his dog. On the way there he went off the edge of the bitumen and the steering on his car broke. He left the car and hitched a lift to Minlaton. The police subsequently located the appellant’s motor vehicle on the side of the road. The appellant was not in attendance but when later spoken to by the police admitted that he had been the driver of the car at the relevant time and that he knew that he was disqualified from driving. Counsel submitted that the driving was not contumacious and the offence had been committed in the course of a genuine attempt to preserve property and to save the life of his dog in a threatening situation. The appellant had also pleaded guilty to that offence. On appeal, counsel submitted that, allowing a discount of 20 per cent for that plea as had been allowed by the Judge with respect to the aggravated driving charge, the starting point for the imposition of sentence for drive disqualified must have been 18 months and was therefore much higher than the prevailing sentencing standards, particularly in a situation in which the offending was not characterised as contumacious.
[1] Section 91(5) Motor Vehicles Act 1959.
In this regard counsel for the appellant referred to the cases which were discussed in Police v Cadd,[2] in which the highest sentence of imprisonment appears to have been a sentence of 28 days imposed on the defendant Hall. However, Cadd is of limited assistance as it was primarily concerned with the question of contumacy and there is a paucity of information available as to the offending history of the various defendants involved in that case.
[2] (1997) 69 SASR 150.
In Nash v Police,[3] an appeal against the failure to suspend a sentence of imprisonment of 21 days was dismissed. In that case the appellant had a prior offence and his driving was found to be contumacious. In Khammash v Police,[4] on appeal, a sentence of 18 months imprisonment with respect to an eighth conviction of drive disqualified was reduced to 12 months.
[3] [2009] SASC 112.
[4] [1999] SASC 225.
Against that background, the sentence imposed by the Judge in this case is at the higher end of the scale, particularly bearing in mind that the maximum penalty is 2 years.[5] As there is no finding by the Judge that the driving was contumacious I consider the sentence of 15 months for this particular act of driving was manifestly excessive. I would impose a sentence of 7 months with respect to this offence, such sentence to be cumulative on the 8 months imposed for the aggravated due care offence. That would result in a total sentence of 15 months. I would fix a non-parole period of 10 months to commence from 14 February 2011.
[5] Section 91(5) Motor Vehicles Act 1959.
Appeal ground 3
The third ground of appeal is concerned with the order made by the District Court Judge for the disqualification of the appellant’s licence for a further period of 5 years. The appellant submitted that the Judge imposed the further period of disqualification for both the offence of drive disqualified as well as the aggravated driving without due care. However, he submitted that in a case in which a term of imprisonment is imposed for a drive disqualified offence a further period of disqualification ought not to be imposed as it amounts to a double penalty for the same conduct. Counsel referred to Khammash v Police,[6] in which Perry J said at [35]:
Where there are no other circumstances of aggravation associated with the manner of driving and where the sentence of imprisonment is not reduced for some reason below the norm, that is, below what the circumstances of the offences and of the offender deserve, it is inappropriate to impose a term of suspension as well as a term of imprisonment.
[6] [1999] SASC 225.
Counsel also referred to R, J v Police,[7] wherein the Court said at [40]-[42]:
[7] [2006] SASC 153
In relation to the question of whether the imposition of disqualification in addition to imprisonment amounts to a double penalty, the appellant directed the Court to the case of Sadler v Crossman.[8] In that case von Doussa J, after discussing the purpose of the power to disqualify, and the importance of general deterrence, said that:
[8] (1988)47 SASR 331.
These observations, however, do not lead to the conclusion where immediate imprisonment is ordered, that a period of licence disqualification should be coupled with the sentence. Generally speaking, I think it should not be. Where a sentence of immediate imprisonment is imposed, that sentence should be punishment enough for the contempt which the defendant has shown for the order for disqualification which he has disobeyed…There may be cases where the circumstances lead the court to impose a sentence of imprisonment which is shorter than the norm, and to balance that fact by increasing the punishment by adding a period of licence disqualification. I would think that such cases would be rare.
His Honour went on to conclude that:
In my view, as periods of immediate imprisonment were ordered on the subsequent two s 91(5) offences, it was not appropriate to impose periods of licence disqualification in respect of them. Indeed in the context of the total package of sentences, I think there was additional reason besides those which I have mentioned for not doing so. This young man is required to serve three months in gaol, and seventeen months of disqualification under the other sentences. That is a heavy burden. The loss of his licence may well affect his employment prospects. I think considerations of his rehabilitation required that at the end of that time he be allowed once again to enjoy the privilege of using the roads.
This approach was accepted by Perry J in both Khammash v Police[9] and Peart v Police[10] In the latter case, Perry J said that:
While it is true that von Doussa J was referring to “immediate imprisonment”, which I assume means a term of imprisonment which is intended to take effect there and then, and not a suspended term of imprisonment, in my view, for the purposes of sentencing principles, in this context, I do not think that there is any difference.
The respondent submitted that the imposition of a period of licence disqualification did not amount to a double penalty because the period of imprisonment was suspended. The imposition of a suspended term of imprisonment ‘is a real punishment, although public opinion might be thought to disagree’. In some cases a combination of a suspended sentence of imprisonment and a licence disqualification may be appropriate, however, in my view the combination of three months imprisonment and a period of disqualification of eight months was manifestly excessive, even having regard to the suspension of the sentence.
[9] [1999] SASC 225.
[10] [2003] SASC 274.
However, in this case the disqualification imposed by the District Court Judge did not relate to the drive disqualified offence but, as is made clear in the Report of Prisoners Tried which was signed by the Sentencing Judge, it was imposed only with respect to the offence of aggravated driving without due care.

In R v Gathercole,[11] on appeal, a licence disqualification for driving without due care was reduced to 6 months, even though death had resulted from the driving. However, that was a decision prior to the amendments to s 45 of the Road Traffic Act 1961 (“RTA”) which came into operation on 30 April 2007. Those amendments increased the penalties for due care offences where circumstances of aggravation were proved, those circumstances including death or serious harm to a person (or the offender at the time of the offence for driving whilst disqualified). In addition to providing for a maximum penalty of 12 months imprisonment the amendment provided for a licence disqualification of not less than 6 months.
[11] [2001] SASC 248.
Nattrass v Police,[12] was concerned with an offence of aggravated driving without due care subsequent to the amendments. That also was a case involving the death of a cyclist. The defendant had been driving on a country road near Mount Gambier and had not seen the cyclist in front of him because the sun was in his eyes and his windscreen was dirty. On appeal the Court took into account the impact on the defendant’s ability to manage his farming properties and his trucking business and considered that the financial hardship as a consequence of the licence disqualification was significant and should be brought into account. However, the appellant was also required to transport his ill wife to medical appointments and the Court had particular regard to that aspect of the matter in deciding that there should be a merciful approach to penalty following which the disqualification was reduced to the mandatory minimum of 6 months.[13]
[12] [2008] SASC 267.
[13] Section 45(2)(b) Road Traffic Act 1961.
In Police v Jachmann,[14] Gray J allowed a prosecution appeal against sentence with respect to a charge of aggravated due care where the circumstance of aggravation was the death of a person. In that case, Gray J increased a licence disqualification of 6 months to 9 months.
[14] [2010] SASC 345.
The disqualification in this case is substantially higher than that imposed in either Nattrass or Jachmann. However the circumstances in this case were particularly serious. On 16 February 2010 the appellant was fined and he was disqualified from holding or obtaining a licence for 2 years and 8 months for an offence of driving with excess alcohol. He was extended considerable leniency by the Court on the charge of driving while disqualified by being released on a bond. Only 15 days later he breached that bond by committing the offence of aggravated driving without due care as a result of which Mr Hudson died. Mr Hudson’s death was a significant matter of aggravation. The fact that the appellant was driving disqualified so soon after the order had been made was a further matter of aggravation against a driving history which, at the time of committing the aggravated due care offence included two prior offences for drive disqualified.
The appellant’s driving was deliberate and sustained, and the only explanation was that the appellant needed to drive approximately an hour and a half to get to a new job. As the Judge said, if the appellant had not chosen to ignore the order for disqualification made just a few weeks earlier, the appellant would not have been on the road and Mr Hudson would not have died. In those circumstances it was inevitable that a substantial period of disqualification should be imposed by way of personal deterrence to the appellant as well as for protection of the community. However, the appellant resides in a rural community with limited public transport and the consequences of licence disqualification will be particularly onerous in respect of his prospects of future employment.
This was a matter discussed by Gray J in Jones v Police.[15]In that case the appellant was convicted of driving a motor vehicle whilst intoxicated. The Magistrate suspended his licence for a period of 15 months. On appeal, Gray J reduced the period of disqualification to 12 months. Gray J said at [24]:
I consider that the absence of services in rural areas is a relevant matter in mitigation. The loss of a driver’s licence to a person residing in a remote area is likely to cause greater hardship than to a city resident. The impact on Mr Jones’ day-to-day life is likely to be considerable.
[15] [2001] SASC 346.
In this case it was within the Judge’s discretion to impose a further and lengthy period of disqualification for the aggravated driving offence but in my opinion, notwithstanding the serious nature of the appellant’s offending, a term of 5 years was manifestly excessive. I would reduce the disqualification to a period of 2 years cumulative upon the 2 years and 8 months ordered on 16 February 2010. That would result in a total period of disqualification of 4 years and 8 months to commence upon the appellant’s release from prison.[16]
[16] Section 169B(1) Road Traffic Act 1961.
Orders
I would therefore allow the appeal to the extent that the sentence with respect to the drive disqualified charge committed on 19 November 2009 be reduced to a sentence of 7 months imprisonment to be cumulative upon the sentence of 8 months imposed with respect to the charge of aggravated driving without due care. That results in a total sentence of 15 months. I would fix a non-parole period of 10 months, both of which should commence from 14 February 2011.
I would further allow the appeal with respect to the order for disqualification of licence and order that the appellant be disqualified for a period of 2 years, cumulative upon the 2 years 8 months ordered on 16 February 2010, making a total period of disqualification of 4 years and 8 months to commence upon the appellant’s release from prison.
DAVID J: I agree with the orders of Nyland J and her reasons for making those orders.
A D D E N D U M

DOYLE CJ: I agree with the orders proposed by Nyland J in her addendum reasons, and with the reasons for making those orders. There is nothing that I wish to add.
NYLAND J: I refer to the order for disqualification of licence referred to in paragraphs 28 and 30 of my reasons for judgment delivered on 26 July 2011.
I now realise that in proposing that order I failed to give proper effect to s 169B of the Road Traffic Act 1961 which provides:
(1)If, in sentencing a convicted person for an offence under this or any other Act, the court imposes a sentence of imprisonment (other than a suspended sentence) and orders that the person be disqualified from holding or obtaining a driver's licence for a specified period, the person will be taken to be so disqualified for a period commencing at the time the order is made and ending at a time calculated as if the specified period commenced—
(a) on the person's release from a period of imprisonment served by the person that consists of or includes a period attributable to the court's sentence; or
(b) if, on the person's release from such a period of imprisonment, the person would, apart from this subsection, already be disqualified from holding or obtaining a driver's licence or holds a driver's licence that is suspended—on the expiration of that period of disqualification or suspension.
However section 169B does not apply to the order for disqualification imposed on 16 February 2010 as a sentence of imprisonment was not imposed at that time. That disqualification period therefore operates from 16 February 2010 and will expire on 16 October 2012. The appellant should be released from imprisonment on 15 May 2012 after serving his sentence of 15 months from 14 February 2011. When the appellant is released from prison, the disqualification order made on 16 February 2010 will still be in force. Accordingly, pursuant to the provisions of s 169B(1)(b), the further period of disqualification of 2 years imposed upon the allowing of the appeal should commence from 16 October 2012 when the first disqualification period expires.
I therefore propose that the earlier order be recalled and in accordance with s 169B that there be a fresh order that the disqualification of 2 years imposed on the hearing of the appeal commence from 16 October 2012.
DAVID J: I agree with the orders proposed by Nyland J in her addendum reasons, and with the reasons for making those orders.