R v COLE

[2010] SASCFC 13

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v COLE

[2010] SASCFC 13

Judgment of The Court of Criminal Appeal

(The Honourable Justice Duggan, The Honourable Justice Anderson and The Honourable Justice David)

2 August 2010

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ASSAULT - SENTENCE

Appellant pleaded guilty in the District Court to three offences, one being assault - the sentences were ordered to be served cumulatively - sentencing judge started with a head sentence for the assault of 12 months.

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

Appellant appeals again the sentence for assault on the ground that a starting point of 12 months is manifestly excessive.

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE  - OTHER MATTERS

In sentencing submissions counsel for the appellant argued that the balance of any term of imprisonment should be suspended - sentencing judge did not make comment on suspension in the remarks - whether this constitutes an error in approach.

Appeal dismissed.

Criminal Law (Sentencing) Act 1935 (SA) s 18A, referred to.

R v COLE
[2010] SASCFC 13

Court of Criminal Appeal:  Duggan, Anderson and David JJ

1. DUGGAN J.         I agree that the appeal should be dismissed for the reasons given by Anderson J.

2. ANDERSON J.

   Introduction

3. This is an appeal against sentence. A District Court judge sentenced the appellant for three offences involving his driving on 12 April 2009. The appellant pleaded guilty to aggravated causing harm by dangerous driving, assault, and failing to stop, assist and present himself to the police after an accident. The maximum penalties for these offences were:

Count 1	7 years with disqualification from holding a driver’s licence for 3 years or more in the court’s discretion
Count 2	2 years
Count 3	5 years with disqualification for a minimum of 1 year or a period in the court’s discretion

Background

1. The circumstances of the offending arise from Mr Cole’s driving. The details of what can only be described as a “road rage” incident are set out in the sentencing remarks of the judge appealed from. I adopt the background set out by the judge.

2. His Honour said:

   The victim of your offending is Mr Schwarz. At about 8.20 pm on Sunday, 12 April 2009 he was riding a Honda motorcycle at Largs Bay. After refuelling on Victoria Road he was about to leave a service station when he noticed a white Holden approaching to his right in a southerly direction about to enter the service station. He stopped the motorcycle to allow the vehicle to travel in front. You were driving the Holden and passed in front of the motorcycle yelling and shaking your fist as you did so. The rider nodded, lifted his wrists off the handlebars and said ‘What’s your problem?’. Your counsel told me that you thought he had given you the finger. You stopped the Holden and reversed quickly towards the motorcycle. The cyclist thought you were about to hit him and he took off heading north for about 10m before making a U-turn at Jetty Road.

   He proceeded south on Victoria Road assuming that the issue with you was over. However, after completing the U-turn he heard the sound of a high revving car engine, and when he looked in his rear view mirror he saw your white Holden rapidly approaching from behind in the same lane. He changed to the left lane to allow the vehicle to pass, however your Holden also changed lanes into the same lane as him to his rear. He saw that your vehicle was catching him at a very fast rate which caused him to fear for his safety as he felt you were trying to run him over. Your vehicle chased him along Victoria Road at increasingly high speeds of up to 140 km/h in a 60 km/h speed zone. He feared for his life the whole time he was being chased. He couldn’t pull over and stop because he feared that your vehicle would run over him. There was nowhere where he could safely turn left or right.

   Your vehicle came up to less than 4m from the back of his bike. He was trying to get away from your vehicle as he believed you were trying to knock him off his bike. He weaved between slower moving vehicles which he overtook and used as a barrier but you continued to close in. He was forced to keep increasing his speed to stay just ahead of your vehicle. As I have said, he estimates his speed at no less than 140 km/h in a 60 km/h speed zone. He was scared for his life and felt extremely unsafe.

   The chase continued until he reached a position about 200m from the traffic lights at the junction of Victoria Road and Nelson Street when he realised that he was going too fast to be able to navigate the oncoming intersection safely. Your vehicle remained to the rear at a distance not greater than 5m. He leaned the bike to the left and applied his front and rear brakes heavily. He did that so that your vehicle would have to go past him. He thought that you may just keep going and leave him alone. He said that as your vehicle passed it came within 30cm of his right leg, he saw that you were the driver. You were shouting as you went past but he couldn’t make out what you were saying. The rider said that you swerved towards him as you went past and nudged the front tyre of the motorcycle with the left rear of your car. The contact was minimal as the motorcycle was leaning to the left and braking hard, but the nudge was forceful enough to throw him off balance momentarily, cause the bike to wobble and collide with the median strip.

   He said the loss of control of his bike was entirely due to the impact of the car into his bike. He said it was a deliberate and intentional act by you. Had he not braked hard and pulled to the left he would have had an accident at the intersection. He lost control of the bike, mounted the median strip and travelled a distance before the bike slipped on gravel and came out underneath him. The rider hit the ground at around 90 km/h.

   In the fall he suffered serious injuries including an injury to his left collarbone.

   You had brought your car to a halt, got out and walked back towards the rider yelling ‘Not so fucking tough without your fucking bike now, are you cunt’. You continued to shout as you approached him. The rider held up his right arm, his left arm being disabled and both hands in a submissive non-threatening manner saying ‘Look mate, what’s your problem? I’ve done nothing wrong, back off. I’ve done nothing to deserve this. Look at what you’ve done to me and my bike’. You continued towards him yelling abuse and then punched him three times in the face with a closed fist. He was unable to raise his left arm because of the broken collarbone.

   Spectators started arriving at the scene and the motorcyclist pleaded with them ‘Help me, he’s trying to kill me. I’ve done nothing wrong, please stop him. He’s trying to kill me’. Onlookers intervened and went to his aid. Your female friend who had been a passenger in the car stood in front of you apparently requesting you to leave. You then walked off with her, swearing as you went. As you drove past the motorcyclist you pointed and continued to call out obscene threats.

3. The victim of the appellant’s “road rage” was seriously injured. He suffered injuries when he fell from his motorcycle as a result of the pursuit by the appellant described by the judge in the remarks above.

4. In the incident he suffered a fractured clavicle, a torn CV joint, a burn on the stomach, grazes and some damage to his ear.

5. I will now deal with the circumstances of the assault which is the subject of this appeal.

6. After having suffered the injuries which I have just described, the victim was punched three times to the face by the appellant. The appellant used a closed fist. The victim’s witness statement describes his helmet as bearing the bulk of the force, with contact being made to his face through the gap in the helmet as his visor had come off in the accident. At the time, the victim was stepping backwards away from the appellant on the median strip. This is stated by some of the witnesses in their statements. The victim did not retaliate.

7. The circumstances in which the appellant punched the victim were that he had just forced the victim into a road collision at 90 km/h. The appellant stated that he did not know at the time that he punched the victim that the victim had been injured. The witness Dempster stated in her statement that there appeared to be “something wrong with his left shoulder” because the victim’s left arm was “hanging down in a strange position”. The victim said the same in his statement. Even if the appellant did not know that the victim had been injured, he was recklessly indifferent as to the extent of his injuries.

8. According to the victim, the entire ordeal lasted approximately seven minutes. The court does not have any further detail in relation to the assault.

9. In his victim impact statement the motorcyclist mentions how his work, study and lifestyle have been affected. He still takes medication. He was previously in the Army Reserve but has not been able to return to that. He is still receiving treatment. In addition he has suffered financial loss and has sold his motorcycle and moved back to live with his parents.

10. In the hearing before us, Mr Stokes, who appeared for the appellant, abandoned the appeal ground based on totality.

    Sentences

11. The judge dealt with each of the offences individually and did not use the provisions of s 18A of the Criminal Law Sentencing Act 1935. For the first offence of aggravated causing harm by dangerous driving, His Honour started with a term of imprisonment for 3 years and 6 months which he reduced for the guilty plea to 33 months.

12. For the assault, His Honour started with a sentence of imprisonment for 1 year which he reduced for the guilty plea to 9 months.

13. For failing to stop, assist and present himself to the police, His Honour sentenced the appellant to imprisonment for 9 months which was reduced from a starting point of 1 year after taking his plea into account.

14. The total of those sentences therefore amounted to 51 months. His Honour ordered that the sentences were to be served cumulatively and he fixed a non-parole period of 30 months.

15. As I have indicated, Mr Stokes did not pursue the ground of appeal based on totality.

    Suspension of sentence

16. Although Mr Stokes did not abandon the ground of appeal based on a request for a suspension of the sentence, he did not pursue further argument based on that ground other than what was contained in his written outline. He pointed out that the judge simply did not mention the question of suspension in his remarks and that one cannot assume that the judge considered it. In his outline he asked the court to take into account the time which the appellant has spent in custody (some 8½ months), his efforts to rehabilitate himself whilst in custody and the medical report of Dr Cayley referring to the need for psychological treatment and to suspend the balance of a sentence. Mr Stokes submitted during the appeal that the appellant has, since being in custody, completed a series of positive courses, including anger management.

17. It is true that the sentencing judge did not comment about suspension in his sentencing remarks. Although not mentioned by the judge, the question of suspension was argued before him. In my view, he should have mentioned the arguments and dealt with them. However, this Court can consider whether suspension was appropriate. The failure by the judge to mention suspension is not of itself decisive in considering this appeal.

18. None of the matters mentioned by Mr Stokes would, in my view, justify the suspension of the sentence in the circumstances of this offending. Therefore although it was an error by the judge not to mention suspension, it is my view that suspension, because of the nature of the offending and the gravity of the offending, was not appropriate in this matter.

    Assault

19. The main ground of appeal pursued by Mr Stokes related to the sentence imposed by the judge for the offence of assault. Mr Stokes’ argument was that a starting point of 12 months was excessive, because the conduct for which the appellant was being sentenced had also been taken into account in sentencing for the aggravated causing harm by dangerous driving.

20. I do not agree with that submission  As the judge makes clear, after the incident whereby the appellant chased the victim on the motorcycle, he went to the defenceless victim, who was pleading for mercy, and struck him three times. As to the assault the judge said:

    It was an unjustified and cowardly attack upon a person whom you had just forced off a motorcycle. He had just suffered a broken clavicle, although you may not have known about that. You ignored his pleas for mercy and proceeded to hit him.

21. Mr Stokes argued that it was akin to what he called a pub brawl where something just went wrong and someone reacted and hit someone. I do not agree. There was a long and terrifying build up before the victim found himself, as I have said, defenceless on the ground. It was as His Honour said, “an unjustified and cowardly act”. The background of this assault made it more of a calculated act, as opposed to a spontaneous bar room brawl in the heat of the moment.

22. In the circumstances I do not consider that the starting point of 12 months with the reduction to 9 months was an excessive sentence for the assault. In my view, it fell within a range of what might be regarded as a normal sentence for that sort of behaviour.

23. I would dismiss the appeal.

24. DAVID J.              I agree the appeal should be dismissed for the reasons given by Anderson J.