R v Celani

[2012] SASCFC 134

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v CELANI

[2012] SASCFC 134

Judgment of The Court of Criminal Appeal

(The Honourable Chief Justice Kourakis, The Honourable Justice Peek and The Honourable Justice Nicholson)

14 December 2012

CRIMINAL LAW - APPEAL AND NEW TRIAL - INTERFERENCE WITH DISCRETION OR FINDING OF JUDGE - OTHER CASES

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

Appellant pleaded guilty to one count of aggravated causing serious harm by dangerous driving and one count of aggravated causing harm by dangerous driving - both offences arose out of the same conduct - appellant was sentenced to three years imprisonment with a non-parole period of 12 months and licence disqualification of ten years.

Appeal against sentence - whether the Judge erred in failing to suspend the sentence of imprisonment - whether the sentence was manifestly excessive.

Held: appeal dismissed - the relevant question is whether there has been a patent or latent error in the exercise of the discretion to suspend the sentence - no such error has been demonstrated - the Judge made no error in refusing to suspend the sentence of imprisonment in the exercise of his discretion - the sentence is not manifestly excessive.

Road Traffic Act 1961 (SA) s 47BA, referred to.

R v CELANI
[2012] SASCFC 134

Court of Criminal Appeal:  Kourakis CJ, Peek and Nicholson JJ

1. KOURAKIS CJ:       On 6 February 2012 the appellant pleaded guilty in the Magistrates Court to a charge of aggravated causing serious harm by dangerous driving and another of aggravated causing harm by dangerous driving. Both offences arose out of the same conduct and were committed on 14 July 2010. The offences were aggravated because the appellant was, at the time, driving a vehicle in contravention of s 47BA of the Road Traffic Act 1961 (SA) which proscribes driving a vehicle whilst a prescribed drug is present in the blood of the driver. In this case, the drug was tetrahydracannabinol.

2. The appellant was committed to the District Court where, on 27 September 2012, he was sentenced to three years imprisonment with a non-parole period of 12 months.  His licence was disqualified for ten years.

3. The appellant appeals against his sentence on the ground that the Judge erred in failing to suspend the sentence of imprisonment and on the ground that the sentence was manifestly excessive.

4. I would dismiss the appeal.  My reasons follow.

   The offence

5. On 12 July 2010 the appellant turned 29.   On the next day, 13 July 2010, he celebrated his birthday late into the night and into the early hours of the following morning.  He drank alcohol and smoked cannabis.   After just two hours sleep, he rose to start work as a forklift driver at the IGA warehouse in Kidman Park at 7.30 am.

6. On his own admission the appellant still felt hung over and was very tired while he was at work.  For his lunch break the appellant decided to go to a KFC outlet on Henley Beach Road.  A workmate, T, came along in the front passenger seat.  The appellant drove his manual V8 SS Commodore which the Judge described as “a very powerful car”. 

7. The appellant had only 30 minutes for lunch.  In wet conditions he tailgated another car as he drove south along Rowells Road.  The driver of that car observed, through her rear vision mirror, that the appellant appeared “agro and annoyed”.  The appellant continued to tailgate her car after turning left to drive east along Henley Beach Road.  The driver observed that the appellant appeared to be getting angrier as he negotiated around roadworks on the northern, left-hand side, lane for east bound traffic on Henley Beach Road and heard the engine of his car revving loudly as he did so. 

8. As soon as the appellant cleared the roadworks, he moved to the left hand lane and accelerated rapidly.  T deposed that it felt like the appellant had “planted his foot all the way to the floor”.   The car fishtailed several times, causing T to believe the car was about to crash into the trees and houses on his left, but the appellant appeared to regain control.  Moments later the appellant again lost control of his car.   The car slid to the right and jumped over the median strip.  It is likely that the appellant was driving at about 80 kilometres per hour at the time he lost control.  The appellant conceded that he was driving at least 75 kilometres per hour.  On the other side of the road the appellant’s commodore hit, head on, a car that was travelling in the opposite direction.  The driver of that car, N, was seriously injured and is the victim of the first count of aggravated causing serious harm by dangerous driving.

9. An analysis of a blood sample taken from the appellant revealed that, at the time of the collision, he had a significant concentration of tetrahydracannabinol which was indicative of recent ingestion, in his blood.  A witness statement given by Professor White, an acknowledged expert in psychopharmacology, and with extensive experience in the treatment of people with alcohol and drug problems, stated:

   While the risky manner of driving cannot be attributed to cannabis, Mr Celani’s ability to control the vehicle and to respond appropriately as he began to lose control, would have been impaired as a result of the effects of cannabis.  His reaction time would have been longer, slowing his response to the situation.  This slowing and the effects on thinking and decision making would have impaired his ability to respond appropriately to the potential crash situation as he lost control of the vehicle.  He would also have been more likely to make errors in his response to this situation as a result of the cannabis.

10. N was 23 years of age at the time of the collision. She suffered broken bones in both arms and both legs, a fractured jaw with a deep laceration, fractured ribs, a collapsed lung, smashed front teeth, a deep laceration to the forehead and multiple cuts and burns across her arms, legs and torso.  N required multiple and extensive surgery involving the insertion of plates, rods and screws to stabilise her bones.  She returned home after three months into the care of her partner.   She gradually moved to self help.  N continues to be dependent on the assistance of others in almost every aspect of her life and remains on strong pain killers.  N is distressed by her residual disfigurement.  Her injuries substantially detracted from her enjoyment of her wedding.  N is concerned that her injuries may preclude her from raising children.  The Judge observed, in summary, that the appellant’s offending had left N “with a life sentence of pain, discomfort and disability”. 

11. T, who is the victim of the count of causing non-serious harm, suffered a fracture of the upper sternum.  He was placed on strong analgesia.  T’s victim impact statement suggests that his physical injuries have largely resolved but that he remains depressed.

    Prior Offending

12. The appellant committed three offences of driving without due care about a decade before these offences.  The first was dealt with in the Youth Court.  No circumstances of the offence are known.   The second of the offences occurred after midnight on Sunday 8 April 2001.  The police heard the appellant’s vehicle revving loudly as it drove along Rundle Street Adelaide and saw its tyres spin on the wet bitumen and then fishtail.

13. The third offence was committed on 16 June 2001 when the appellant was involved in a collision, again just after midnight, at the Maid and Magpie corner in Stepney.  The police apprehension report alleges that the appellant and another driver were involved in a drag race along North Terrace, College Park, when their vehicles collided.  The appellant denied that he had been drag racing and submitted before the Judge that the collision was caused by the driver of the other vehicle who overtook his car when it was unsafe to do so.  It is accepted that, whatever the cause, the other driver’s vehicle crashed into the Maid and Magpie Hotel.  It is also common ground that the appellant immediately drove away from the scene of the collision.  He proffers by way of excuse that he was scared.    The appellant’s account cannot be entirely accepted because it denies any basis for his conviction. 

14. The Judge noted that the traffic offences occurred more than a decade earlier.  His Honour indicated that he could make no clear finding about the circumstances of the prior offending.  His Honour reminded himself that the appellant was not to be sentenced again for those offences but proceeded on the basis that they were “nonetheless relevant to the degree of leniency the Court is able to extend to [the appellant] and they are also relevant to [the appellant’s] prospects of rehabilitation”. 

15. The Judge was correct not to ignore the offences.  It would have been an error to treat the appellant as a first offender.  The second offence involved aggressive driving behaviour.  Even though it is not possible to resolve the dispute about the circumstances of the third offence, the offences resulted in a serious collision at a busy intersection.  The offences are indicative of an occasional reckless attitude to road safety which is also manifest in the circumstances of the present offence.

    Personal Circumstances

16. The appellant is now aged 31 years.   Even though the appellant left school when he was just 15, he has maintained continuous employment.  The appellant worked for IGA for ten years preceding the collision but his injuries prevented him from returning to that work.  He had been employed on a casual basis and was not offered further employment. 

17. V, the proprietor of a business known as AutoSpirit, provided a character reference for the appellant.  V is a relative of the appellant who has known him since he was a child.  The appellant has undertaken some work experience at the business since some time after September 2011.  In a written character reference provided by V, he stated that he intended to offer the appellant permanent part-time or full-time work because of the “outstanding work ethic” which he had demonstrated.

18. The Judge gave the appellant credit for apologising to his victims, paying for the damage to N’s car and being prepared to participate in restorative justice counselling.  The Judge proceeded on the basis that the appellant was extremely remorseful. 

19. A report from the psychologist Mr Broomhall was received by the Judge for the purposes of sentencing.  Mr Broomhall reported that the appellant continued to feel guilt, frustration and anger as a result of the offending.   The appellant has received psychological treatment and counselling.  Mr Broomhall diagnosed an adjustment disorder with depressed mood and anxiety.

20. The Judge made a guarded assessment that the appellant’s prospects of rehabilitation were “reasonable”.

    Disposition of the appeal

21. Tailgating on relatively busy suburban arterial roads, in the vicinity of roadworks, wet conditions, rapid acceleration, tiredness and drug intoxication are ingredients which, in combination, create, as the Judge rightly observed, a “recipe for disaster”.   N’s injuries are catastrophic. 

22. The appellant’s overall sentence had to reflect the consequences of his dangerous driving on two victims, albeit that T’s injuries were less serious.  The offences are not in the most serious category but they are moderately serious examples of their kind.   The effect of the tetrahydracannabinol was not the cause of the appellant’s reckless conduct.  He has neither an excuse nor any explanation for his deliberate and dangerous flouting of the road laws.  However, his ingestion of cannabis did compromise his capacity to control his car in the course of his dangerous escapade. 

23. In those circumstances a starting point of just over four years, which is just over half the maximum sentence applicable on count 2, but a small proportion of the maximum penalty of life imprisonment applicable on count 1, can only be described as lenient.  The non-parole period is less than the proportion that is often applied and gives much scope for rehabilitation. 

24. The only error of fact alleged is that the Judge described the appellant’s future employment as uncertain.  Even though he had undertaken work experience for some time, V had yet to make an offer of employment to the appellant.  Moreover, a real question remained as to whether V would offer permanent or part-time employment.  When he was interviewed by Mr Broomhall, Mr Celani acknowledged that his employment prospect with V would depend on whether or not he was disqualified from holding a licence.  The Judge’s description fairly reflects the material put before him.

25. The appellant also complains of a failure to take into account the appellant’s lack of offending between 2001 and these offences.  I do not accept that the Judge did not have regard to that period of offence-free driving even though he did not expressly refer to it.  It is implicit in his discussion of the appellant’s prior offending.  It is not surprising that the Judge did not expressly refer to this circumstance which, although relevant, is not of great mitigating weight.

26. It can be accepted that the appellant’s reasonably good work record, long term romantic relationship and remorse were factors which supported the favourable exercise of the discretion to suspend.  On the other hand, the manner of driving was reckless and displayed no insight into the risks the appellant was thereby creating.  That lack of insight in the context of the appellant’s previous, albeit dated, offending called for a very cautious approach to the prospects of rehabilitation.  Perhaps more importantly, general deterrence is a very important consideration for offences of this kind.  The appellant’s personal circumstances, and the matters calling for leniency in particular, were not very different from circumstances which are often encountered in cases such as these.  This is a case in which different judges might properly have exercised the discretion either in favour of, or against, suspension.

27. The question on an appeal against sentence is not whether the Appeal Judges would have suspended the sentence.  On an appeal, the relevant question is whether there has been a patent or latent error in the exercise of the discretion.  No such error has been demonstrated.  Even if the question were whether I would have suspended the sentence, I would answer it adversely to the appellant.  The Judge made no error in refusing to suspend the sentence of imprisonment in the exercise of his discretion.

28. PEEK J:       I would dismiss the appeal.  I agree with the reasons of the Chief Justice. 

29. NICHOLSON J:     I would dismiss the appeal.  For the reasons given by the Chief Justice, I agree that no error by the sentencing Judge in the exercise of the discretion has been demonstrated.  I express no view as to whether or not I would have suspended the sentence.