R v Ceruto

[2014] SASCFC 5

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v CERUTO

[2014] SASCFC 5

Judgment of The Court of Criminal Appeal

(The Honourable Chief Justice Kourakis, The Honourable Justice Vanstone and The Honourable Justice Stanley)

30 January 2014

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

CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - SENTENCING GUIDELINES

CRIMINAL LAW - SENTENCE - INTERPRETATION OF SENTENCING PROVISIONS

Appeal against sentence.

The appellant pleaded guilty to one count of aggravated causing death by dangerous driving and one count of driving without a licence. 

At about 7 a.m. on Friday 11 January 2013 the car that the appellant was driving collided with a stobie pole on Radstock Street, Woodville Park. The appellant’s fiancé, who was a passenger in the vehicle, was critically injured and subsequently died in hospital. She was in the advanced stages of pregnancy and her unborn child also died as a result of the collision. The reason for the collision is not clear. The appellant lost control, the vehicle rotated in a clockwise direction, travelled across the incorrect side of the road, left the road and collided with a stobie pole before it came to rest.

The collision occurred in a suburban street where the speed limit is 50 kilometres per hour.  Immediately prior to the collision the evidence suggests that the appellant’s vehicle was travelling at a speed somewhere between 115 and 137 kilometres per hour.  At the time of the collision, the appellant was under the influence of drugs and alcohol.  Following the accident, the appellant fled the scene.

The appellant was sentenced to a term of six years and 10 months imprisonment with a non parole period of five years and five months.

It appears the learned sentencing judge considered that the provisions of s 10C of the Criminal Law (Sentencing) Act 1988 (SA) applied.

Whether the sentence is manifestly excessive. Whether the judge erred in applying s 10C of the Criminal Law (Sentencing) Act 1988 (SA).

Held per Stanley J (Kourakis CJ and Vanstone J agreeing) (dismissing the appeal):

1.  The sentence imposed is not manifestly excessive (at [39] - [41]).

2.  The original Information had the requisite connection with the offending for which the appellant was sentenced so that the Criminal Law (Sentencing) (Guilty Pleas) Amending Act 2012 (SA) did not apply to his sentencing (at [26]).

Road Traffic Act 1961 (SA) s 45A, s 45BA; Criminal Law (Sentencing) Act 1988 (SA) s 10C; Criminal Law (Sentencing) (Guilty Pleas) Amending Act 2012 (SA); Summary Procedure Act 1921 (SA); Criminal Law Consolidation Act 1935 (SA) s 19A, s 340, referred to.
R v Seigneur (2009) 103 SASR 207; Markarian v The Queen (2005) 228 CLR 357; R v Dundovic (2008) 101 SASR 32; Baumer v The Queen (1988) 166 CLR 51; Dinsdale v The Queen (2000) 202 CLR 321; R v Watkins [2013] SASCFC 150, discussed.
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