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.
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; Tooheys Ltd v Commissioner of Stamp Duties (NSW) (1960-1961) 105 CLR 602; O’Grady v Northern Queensland Co Ltd (1990) 169 CLR 356; Oceanic Life Ltd v Chief Commissioner of Stamp Duties (1999) 154 FLR 129; R v Abdulla (2011) 109 SASR 258, considered.

R v CERUTO
[2014] SASCFC 5

Court of Criminal Appeal:  Kourakis CJ, Vanstone and Stanley JJ

1. KOURAKIS CJ:    I would dismiss the appeal for the reasons given by Stanley J. 

2. VANSTONE J:     I would dismiss the appeal for the reasons given by Stanley J. 

   STANLEY J:

   Introduction

3. This is an appeal against sentence.

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

5. The offences were committed on 11 January 2013.  The appellant was arrested and charged with causing death by dangerous driving, leaving the scene of an accident, driving without a licence and failing to answer questions as to the identity of a driver.  He first appeared in court on 14 January 2013.  On 8 July 2013 a new Information was filed charging one count of aggravated causing death by dangerous driving and one count of driving without a licence.  The other charges were discontinued.  The appellant pleaded guilty to these charges on 10 July 2013. 

6. For the offence of aggravated causing death by dangerous driving 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.  The appellant was disqualified from holding or obtaining a driver’s licence for a period of 10 years.

7. For the offence of driving without a driver’s licence the Court recorded a conviction but imposed no further penalty.

8. The offence of causing death by dangerous driving was aggravated because the appellant was driving his motor vehicle while there was present in his blood a concentration of more than .08 grams of alcohol in 100 millilitres of blood, and he was driving his vehicle in contravention of s 45A and s 47BA of the Road Traffic Act 1961 (SA) (“the Road Traffic Act”).

9. The maximum penalty for aggravated causing death by dangerous driving is life imprisonment and disqualification from holding or obtaining a driver’s licence for 10 years or such longer period as the Court orders. 

10. In fixing sentence, the learned sentencing judge’s starting point was a term of 10 years imprisonment.  In her sentencing remarks she said:

    You entered your plea of guilty at the first opportunity and you are entitled to a discount of up to 40%. This is a difficult question, given your behaviour following the accident, particularly your lack of cooperation with the police and the inevitability of conviction, given the evidence. However, you have avoided the necessity for a trial with consequent distress to Ms Smith’s family and I also note your apology in court. Taking these matters into account I consider an appropriate discount to be 30%. That brings your head sentence to seven years. From this I deduct a further two months for your time in custody and on home detention, bringing the head sentence down to six years and 10 months.

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

12. The sole ground of appeal is that the sentence is manifestly excessive. 

    Circumstances of the offending

13. At about 7 a.m. on Friday 11 January 2013 the appellant, while significantly under the influence of drugs and alcohol, forced his heavily pregnant fiancée, Lisa Smith, who was feeling unwell, into the appellant’s motor vehicle at their house at Woodville Park.  When they left their house, the appellant was naked and Ms Smith was wearing underwear only.  The appellant drove off at high speed.  Shortly thereafter the appellant’s motor vehicle collided with a stobie pole on Radstock Street, Woodville Park.  The impact was so severe as to uproot the stobie pole.  Ms Smith was critically injured and subsequently died in hospital.  Her unborn child also died as a result.  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, there was present in the appellant’s blood a concentration of somewhere between 0.141 and 0.161 grams of alcohol in 100 millilitres of blood.  In addition, there was a concentration of 0.65 mg/L of methylamphetamine in his blood.  Further, there was evidence of a quantity of cannabis.  There can be little doubt that the appellant’s consumption of alcohol and proscribed drugs markedly impaired his driving ability. 

14. Following the accident, the appellant fled the scene.  He did not provide any assistance or comfort to Ms Smith.  On the contrary, he demonstrated a callous disregard for her welfare and that of their unborn baby.

    Circumstances of the appellant

15. At the time of the offending the appellant was 30 years old.  His parents separated when he was a baby.  He was raised by his mother.  As a child he was physically abused by his stepfather.  Both his parents are now dead.  His mother died when he was 15.  He coped poorly with her death and began abusing drugs. 

16. The appellant was educated to Year 10.  He has been unemployed for most of the last 10 years.  He has a history of alcohol and substance abuse.  He has a history of offending both as a youth and as an adult.  I infer that most of his offending is connected to his drug use. 

17. The appellant has a nine-year-old son from a previous relationship. 

18. A report from Dr Jack White, a psychologist, diagnoses the appellant as suffering from a substance use disorder, post-traumatic stress disorder, an adjustment disorder with mixed anxiety and depressed mood, and an anti-social personality disorder. 

    The application of s 10C of the Sentencing Act?

19. Before turning to the question of whether the head sentence of seven years is manifestly excessive I should address an antecedent issue. It appears the learned sentencing judge applied the discount for an early guilty plea enshrined in s 10C of the Sentencing Act. In my view, this was an error. 

20. But for her view that the new sentencing regime applied, entitling the appellant to a discount for his early guilty plea of up to 40 per cent, I think it unlikely that she would have discounted the notional head sentence by the 30 per cent she adopted.  While the appellant was entitled to a discount for his plea of guilty, the case against him was overwhelming.  His DNA was found on the airbags.  A discount of 20 per cent would have been generous in the circumstances.  Accordingly, the sentencing judge’s error worked to the appellant’s advantage.  Unsurprisingly, the appellant makes no complaint concerning the error.  Neither does he submit that the approach adopted by the learned sentencing judge was correct.  Mr Press, counsel for the DPP, submitted that s 10C did not apply to the appellant’s offending.  As I have reached the conclusion, which I will explain shortly, that I would not interfere with the sentence imposed by the learned sentencing judge, it is strictly unnecessary to decide this point.  However, in deference to the submission put by the DPP and in case this matter goes further, I should briefly explain my reasons for accepting the DPP’s submission. 

21. The new s 10C was inserted into the Sentencing Act by the Criminal Law (Sentencing) (Guilty Pleas) Amending Act 2012 (SA) (“the Amending Act”).[1] Section 10C of the Sentencing Act commenced operation on 11 March 2013. The transitional provision provides that the amendments made by the Amending Act to the Sentencing Act apply to proceedings relating to an offence instituted after the commencement of the Amending Act, regardless of when the offence occurred. In my view, the proceedings relating to these offences were instituted before the commencement of the Amending Act on 11 March 2013.  The proceedings were instituted by the filing of the original Information in January 2013. 

    [1]    Act No. 49 of 2012.

22. The proper construction of the transitional provision is to be found from an examination of the text of the provision, the statutory context and the objects of the legislation.[2]  The purpose of the Amending Act is to provide incentives to defendants to plead guilty earlier, to reduce delays in the criminal justice system and to impose upon defendants a responsibility to engage in the process of negotiation.  The transitional provision is to be interpreted to give effect to these purposes.  The only way to do so is to construe “proceedings” in this context as meaning proceedings commenced in the court where the proceedings were instituted.  In this case that was the Magistrates Court.  To do otherwise would frustrate the purpose of the legislation.  The fact that a new Information was filed does not mean that new proceedings relating to the offences have been instituted. 

    [2]    Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 at [69] – [71], (1998) 194 CLR 355 at 381 – 382.

23. The transitional provision in the Amending Act is similar, although not identical, to the transitional provision considered in R v Seigneur.[3]  I consider the differences are important.  The transitional provision in Seigneur stated the amendments applied to “proceedings commenced” while the transitional provision in the Amending Act provides the amendments apply to “proceedings relating to an offence instituted” after the commencement of the Amending Act. 

    [3] [2009] SASC 59, (2009) 103 SASR 207.

24. In Seigneur Kourakis J, as he then was, explained that an Information alleging a major indictable offence may be laid in the Magistrates Court.  It is dealt with in accordance with the committal procedure prescribed in the Summary Procedure Act 1921 (SA).  Committal proceedings are administrative in nature.  Committal proceedings are separate and distinct from the subsequent proceedings in the trial court. 

25. While in Seigneur this Court determined that the expression “proceedings commenced” in the transitional provision to an amendment to the Sentencing Act meant “proceedings in the court of trial”, so that the amendment was not excluded from applying to proceedings that were instituted by the filing of an Information in the Magistrates Court prior to the commencement of the operation of the amended provision, I consider that the text, context and purpose of the transitional provision with which this Court is concerned compels a different construction. 

26. In Seigneur Kourakis J considered that the expression “proceedings commenced” refers to the institution of civil and criminal actions.[4]  The language of the transitional provision of the Amending Act: “proceedings relating to an offence instituted after the commencement” supports an interpretation of the transitional provision which means that it applies to the institution of the criminal prosecution relating to an offence.  This includes the committal proceedings.  In my view, the legislative intention enshrined in s 10C is to afford an incentive to a defendant to plead guilty at the earliest opportunity.  This construction is reinforced by Gray J’s view in Seigneur that a replacement Information is not to be considered as the institution of proceedings relating to an offence. [5]  Moreover, the phrase “relating to” is an expression of broad import.[6]  How broad depends upon the statutory context.[7]  It indicates a connection or relationship between one subject and another.[8]  In my view, the original Information had the requisite connection with the offending for which the appellant is being sentenced so that the Amending Act did not apply to his sentencing. 

    [4] [2009] SASC 59 at [123], (2009) 103 SASR 207 at 239.

    [5] [2009] SASC 59 at [37], (2009) 103 SASR 207 at 221.

    [6]    O’Grady v Northern Queensland Co Ltd (1990) 169 CLR 356 at 374.

    [7]    Oceanic Life Ltd v Chief Commissioner of Stamp Duties (1999) 154 FLR 129.

    [8]    Tooheys Ltd v Commissioner of Stamp Duties (NSW) [1999] NSWCA 416, (1960 – 61) 105 CLR 602 at 620.

27. If the contrary construction was adopted, it would frustrate the object of the Amending Act.  It would mean that a defendant who pleads guilty on the  morning of his trial to a new Information laid after the commencement of the Amending Act with substantially the same offences as previously charged, would be eligible for the significantly greater discounts provided for by the Amending Act.  Such a construction would be contrary to the clear purpose of the Amending Act and should not be adopted unless the language of the transitional provisions is so intractable as to preclude any other construction.   For the reasons given, I do not consider that is the case. 

    Manifestly excessive?

28. The approach of an appeal court in considering an appeal against sentence is explained by the High Court in Markarian v The Queen.[9]Gleeson CJ, Gummow, Hayne and Callinan JJ said:[10]

    As with other discretionary judgments, the inquiry on an appeal against sentence is identified in the well-known passage in the joint reasons of Dixon, Evatt and McTiernan JJ in House v The King, itself an appeal against sentence. Thus is specific error shown? (Has there been some error of principle? Has the sentencer allowed extraneous or irrelevant matters to guide or affect the decision? Have the facts been mistaken? Has the sentencer not taken some material consideration into account?) Or if specific error is not shown, is the result embodied in the order unreasonable or plainly unjust? It is this last kind of error that is usually described, in an offender’s appeal, as “manifest excess”, or in a prosecution appeal, as “manifest inadequacy”.

    [9] [2005] HCA 25, (2005) 228 CLR 357.

    [10] [2005] HCA 25 at [25], (2005) 228 CLR 357 at 370 – 371.

29. Mr Allen, counsel for the appellant, could not point to any error of principle or fact made by the judge.  Rather, he submitted the sentence itself disclosed error. 

30. He submitted the learned sentencing judge started with a notional sentence of 10 years. This was discounted by 30 per cent for the plea of guilty. The appellant was given further credit for time spent in custody and on home detention bail. He submitted that both the notional and the actual head sentences are manifestly excessive. He submitted that given the prevailing sentencing standards for this type of offence, a term of imprisonment of seven years is reserved for cases involving multiple charges or multiple offences against s 19A of the Criminal Law Consolidation Act 1935 (SA) (“the CLCA”) or for the worst possible type of case for one offence against s 19A. He sought to emphasise this submission by reference to R v Dundovic.[11]I will come back to Dundovic later in these reasons. 

    [11] [2008] SASC 136, (2008) 101 SASR 32.

31. He submitted that the appellant was not expecting to drive that morning.  He submitted that the learned sentencing judge accepted that the appellant drove in a state of panic, having been awoken by Ms Smith who was complaining of severe abdominal pain and nausea against a background where she had endured a difficult pregnancy and had been advised by her treating doctors that there was a risk of foetal death.  He submitted that the appellant could not find his mobile phone and so made a decision to drive Ms Smith to the hospital.  He submitted the case did not involve a prolonged course of bad driving, police pursuit or a stolen vehicle.  This was not joy riding or street drag racing.  The appellant was not driving disqualified nor was he an offender with numerous prior driving offences.  He was not on parole, on bail or in breach of a suspended sentence.  The decision to drive arose against a background of perceived emergency.  The learned sentencing judge accepted that the appellant’s conduct immediately following the crash was explicable on the basis of him having suffered a head injury and being under the influence of drugs and alcohol. 

32. None of these submissions indicate relevant error on the part of the sentencing judge.

33. Notwithstanding the starting point of 10 years in fixing the head sentence, it is the actual sentence imposed that must be considered in determining whether it is manifestly excessive.  In Baumer v The Queen[12] the High Court said the task of the sentencing judge is to evaluate the circumstances of the offence in their entirety, including the aggravating influence of alcohol, drugs and speed, and to determine an appropriate term of imprisonment having regard to the prescribed maximum of life, and to the possible range of offences to which it applies.[13] In addition, s 10 of the Sentencing Act requires the Court to consider the impact of the offending on the victims, the need to protect the safety of the community, the need for general deterrence and the personal circumstances of the offender.[14]

    [12] [1988] HCA 67, (1988) 166 CLR 51.

    [13]   Baumer v The Queen [1988] HCA 67, (1988) 166 CLR 51 at 57.

    [14]   R v Watkins [2013] SASCFC 150 at [24].

1. The circumstances of the offending are egregious.  The evidence discloses that in the 10 minutes immediately before the appellant and Ms Smith entered the appellant’s motor vehicle, he had been shouting abuse at Ms Smith and breaking glass.  As the sentencing judge found, Ms Smith was reluctant to get into the car with the appellant.  It appears that the Judge found that he forced her to do so.  The appellant drove while under the influence of proscribed drugs and alcohol.  The statement of Dr Jason White, the Professor of Pharmacology at the University of South Australia, indicates that the results of the blood test point to the appellant suffering “significant adverse effects” at the time of his offending as a result of his consumption of alcohol and methylamphetamine.  He was an experienced user of both.  The effect of his use of drugs and alcohol would have been obvious to him at the time.  His decision to drive was not made in ignorance of the danger he posed.  Moreover, the decision to drive was not spontaneous or made in circumstances that deprived him of the capacity to consider other options.  Plainly enough Ms Smith had decided that there were better options for dealing with whatever medical emergency she was facing than being a passenger in a car driven by the appellant.  The appellant’s prolonged abuse of Ms Smith immediately prior to leaving the house and his insistence that she come with him in the car notwithstanding her obvious reluctance to accompany him, evidenced his unwillingness to consider other courses of conduct.  This factor diminishes the sentencing judge’s finding that the appellant was panicking.  It is to be remembered that any panic was also a manifestation of his illegal use of methylamphetamine.  Such conduct is scarcely mitigatory.  The speed at which the appellant drove in a suburban street posed very significant danger not only to himself and his passenger, and their unborn child, but also to other persons who might have been using those streets at the time.  The appellant must have recognised the risks he was running.  Insofar as the appellant submits the bad driving was not prolonged, this is solely because of the fact of the collision.  His dangerous driving did not cease due to any decision by him.  Again, this is not a matter that can mitigate his offending.  The appellant’s conduct immediately after the collision demonstrates a lack of remorse and contrition at that time and is consistent with his pre-collision conduct in forcing Ms Smith into the car.  While his post-collision conduct cannot be taken into account as a matter of aggravation, it does form part of the circumstances of the offence and is a relevant consideration in the imposition of sentence. 

2. Ms Smith’s death orphaned two young children from a previous relationship.  It not only devastated her immediate family but left her parents with the responsibility for the care, maintenance and upbringing of their two grandchildren.  They are left bearing not just a heavy burden of grief but a heavy financial and emotional responsibility at a time when they were entitled to expect their lives would be easier. 

3. Further, as this Court said in R v Watkins,[15] deterrence and protection of the community are significant factors when considering an appropriate sentence for offending of this kind.  Deterrence in this instance includes not only specific deterrence but, more particularly, general deterrence.   Offending of this kind is too prevalent.  Courts are obliged to fix sentences for this category of offending that are sufficiently severe that they will act as a deterrent to others from driving at speeds and in a manner dangerous to the public, especially when they are affected by drugs or alcohol. 

   [15] [2013] SASCFC 150.

4. The appellant submits that a head sentence of seven years in this case is very high, by reference to R v Dundovic.[16] Dundovic is instructive.  It was a prosecution appeal from a sentence of four years, 10 months and two weeks imprisonment for the aggravated offence of causing death by dangerous driving and the aggravated offence of causing harm by dangerous driving.  In Dundovic the respondent had pleaded guilty to each count.  The Court of Criminal Appeal concluded that the sentence was manifestly inadequate.  In allowing the prosecution appeal, the CCA increased the sentence to imprisonment for 11 years and two months.  Doyle CJ, with whom Bleby and Anderson JJ agreed, considered that before making a reduction for the plea of guilty a single sentence of imprisonment of 14 years was warranted.  He arrived at this figure on the basis of a sentence of imprisonment of 12 years for the offence of aggravated cause death by dangerous driving and two years for the offence of aggravated cause harm by dangerous driving.  He reduced the sentence by 15 per cent on account of the guilty plea and gave further credit for time spent in custody.  Dundovic was particularly serious offending. The respondent was involved in a high-speed chase to elude police which resulted in a collision causing the death of the driver of another car and injury to a passenger in the respondent’s car.  The circumstances of aggravation were that the respondent committed the offence in the course of attempting to escape police pursuit, and was part of a prolonged, persistent and deliberate course of very bad driving.  In addition, he was found to have amphetamine and methylamphetamine in his blood.  He was driving in breach of a bail condition and without a driver’s licence.  Doyle CJ characterised the offending as being of the most serious kind.  There was nothing about the personal circumstances of the respondent which sounded in mitigation.  He had a long history of offending at a relatively young age, as well as an appalling record of traffic offending.

   [16] [2008] SASC 136, (2008) 101 SASR 32.

5. The head sentence in this case of seven years (before allowing for time spent in custody) compares with the notional head sentence of 12 years (before allowing for time spent in custody) in Dundovic.  The notional head sentence in Dundovic for aggravated causing death by dangerous driving is over 40 per cent higher than the head sentence in this case.  It is important also to recognise that Dundovic was decided before the introduction of s 340 into the CLCA.[17]  Accordingly, the Court, in fixing the substituted sentence, presumably approached that exercise in accordance with the principle in Dinsdale v The Queen[18] that in allowing a prosecution appeal the appellate court imposes a substituted sentence towards the lower end of the range of available sentences. 

   [17]   See R v Abdulla [2011] SASCFC 20 at [17], (2011) 109 CLR 258 at 262.

   [18] [2000] HCA 54 at [62], (2000) 202 CLR 321 at 341.

6. In my view, while at the high end, this sentence is within the range for offending of this kind.  It leaves room for a more severe sentence to be imposed in circumstances more extreme than this offending. 

7. I do not consider that the sentence imposed was manifestly excessive in all the circumstances.  The learned sentencing judge took all relevant matters into account including all matters personal to the appellant.  There was nothing in the appellant’s personal circumstances which would invite leniency. 

8. The sentence imposed was not unreasonable or plainly unjust. 

   Conclusion

9. I would dismiss the appeal.