R v Davenport No. Sccrm-98-150 Judgment No. S6816

R v DAVENPORT
[1998] SASC 6816

Court of Criminal Appeal: Prior, Olsson and Lander JJ (ex tempore)

OLSSON J

This is an appeal, by leave, against a sentence imposed on the appellant by a District Court Judge. The appellant pleaded guilty to one count of causing death by dangerous driving, four counts of causing grievous bodily harm by negligent and reckless driving and four counts of endangering life. All offences arose from a single, ongoing incident and, not unsurprisingly, the learned sentencing Judge elected to impose one sentence in respect of them, pursuant to section 18A of the Criminal Law (Sentencing) Act.
In the event the appellant was sentenced to six years’ imprisonment, with a non parole period of four years. He was disqualified from holding or obtaining a driver’s licence for 12 years.
The present appeal is prosecuted on the grounds that the sentence imposed was, in all the circumstances, manifestly excessive; and that insufficient credit was given for the pleas of guilty.
The offences were committed at Whyalla Norrie in the early hours of 5 July 1997. At that time the appellant was a single man, 22 years of age. He had, by then, already amassed a significant antecedent record, including two counts related to driving whilst intoxicated, a count of driving in a reckless or dangerous manner, two counts of driving an unregistered vehicle and one count of driving without a licence.
It was the prosecution case that, at the date of the offences, the appellant was living at Port Augusta. He first went to the Pastoral Hotel at Port Augusta late in the evening of 4 July. He there met one Hamilton and the two of them were drinking for some time. By virtue of a drink/drive offence which he had committed in 1995, the appellant had been disqualified from holding or obtaining a driver’s licence for a period of 12 months. This had led to the situation that, on the night in question, he was only in possession of a Probationary Licence, a condition of which he was not entitled to drive if he had consumed any alcohol at all.
According to Hamilton the two of them left the hotel at about midnight and went to a nearby roadhouse to get something to eat.
At about 12.30 am the appellant drove his utility to Whyalla, with Hamilton as a passenger. On arrival they went to the Spencer Hotel, in the main street, and resumed drinking.
It appears that the Spencer Hotel closed at 3.00 am on the Sunday morning, whereas the Sundowner Hotel at Whyalla Norrie remained open until 5.00 am. It was said that, not infrequently, numbers of patrons would migrate from the Spencer, when it closed, to the Sundowner.
On this occasion, at shortly after 3.00 am the appellant drove his utility away from the Spencer with the intention of going to the Sundowner. He had, by then, been drinking steadily for several hours. Some seven people were in the back of his utility, as well as the appellant and Hamilton in the front.
At about 3.25 am two police officers were stationed in a police vehicle at the junction of Lincoln Highway and Keith Street, Whyalla Norrie. They were operating a speed detection laser equipment. At one point they heard a loud engine revving noise and male voices yelling out.
The police officers observed what proved to be the appellant’s utility approaching at a high speed from some 500 metres distance. As it came closer the speed of the utility was recorded at 100 kph. The sounds referred to appeared to be emanating from it.
The police vehicle activated its lights and gave chase.
The utility attempted to turn right into Norrie Avenue, but was going too fast. Its brakes locked up and the vehicle mounted a triangular section of traffic island, smashing down a “keep left” sign. As it continued on down Lincoln Highway a male person either jumped or was thrown from the rear of the utility and rolled across the road.
The police officers observed that the utility then did what was tantamount to a U-turn, again driving over the corner of the traffic island and an adjacent kerb. At that point a second male was seen to jump or fall from the back of the vehicle.
The appellant’s vehicle was seen to do another full circle of the traffic triangle. It then accelerated heavily off along Lincoln Highway, pursued by the police vehicle, which had, at that stage, activated its siren as well as its lights.
The utility accelerated up to 140 kph, with the police vehicle about 100 metres to its rear.
As the utility approached the intersection of Broadbent Terrace and Playford Avenue, it accelerated strongly up to 160 kph. The appellant was totally unresponsive to pleas from his passengers to slow down. The police steadily fell back as the appellant’s vehicle pulled away from it. The police driver had decelerated considerably because of approaching bends in the road and the presence of other vehicles and persons on, or adjacent to, what was a narrowing carriageway.
The police officers saw the utility overtake another vehicle in the eastbound lane of Broadbent Terrace. To do so it veered over into the westbound lane on a bend, approaching head on, both a taxi and what proved to be a second police vehicle in that lane, about to pass the taxi. The utility did not traverse the bend, but continued straight on and struck a stobie pole with considerable force.
After impact both the appellant and his front seat passenger were seen to be trapped in the utility. Two young males were observed lying on the roadway. Another male (who showed no sign of consciousness) appeared to have gone through the rear window of the passenger compartment (smashing the driver’s seat forward and jamming his lower back and behind through the driver’s window). A second male also appeared to have been thrown forward from the rear of the utility and was trapped in the passenger compartment behind the driver’s seat. Yet another male was lying unconscious in the rear of the utility.
Expert medical opinion, based on a blood alcohol reading obtained from the appellant at 5.55 am, was to the effect that, at the time of the accident, the appellant’s blood alcohol concentration would have been of the order of 0.17%.
As an outcome of the accident one passenger was killed. A passenger Kilpatrick was rendered a totally dependent inmate of Julia Farr Centre, with significant permanent disabilities (including left sided paralysis). Another passenger Radford sustained head injuries and a collapsed lung, which caused difficulty in breathing, although he has now largely recovered. The passenger Schreiber was evacuated to hospital, but the full nature and extent of his injuries does not readily appear. The fifth passenger, Boyd, suffered multiple fractures, facial injuries and broken teeth.
The appellant himself suffered quite serious injuries, both physical and psychological. He sustained facial lacerations, and facial disruption. Immediately after the accident (as was the situation earlier in the evening) he displayed an aggressive, belligerent presentation.
The four counts related to endangering life were, of course, related to the danger caused to the persons who were occupants of the oncoming taxi, across the course of which the appellant’s vehicle veered, prior to its impact with the stobie pole.
The material before the learned sentencing Judge indicated that the appellant was something of an enigma. On the one hand he had a good work record and had almost completed his apprenticeship as a carpenter. A series of excellent character references were placed before the court; and it appeared that he had assisted training aboriginal people under the CEDAP scheme.
However, his driving record was appalling. He had, prior to the commission of the present offences, been disqualified from holding or obtaining a driver’s licence on no less than four occasions.
These had occurred during the years 1994 and 1995. Two of them were in relation to drink/driving offences.
The inference to be drawn from the evidence is that the appellant has tended to drink to excess and, when he does so, becomes both aggressive and irresponsible.
The learned sentencing Judge accepted that the appellant was truly contrite and that the realisation of what he had done had had a profound impact on him.
Notwithstanding that and the appellant’s relatively young age, the learned sentencing Judge considered that the appellant’s irresponsible behaviour and total disregard for the law mandated severe punishment. He obviously felt that the offences, in their setting, must rank amongst the worst cases of their type.
At the end of the day he concluded that, had it not been for the timely pleas of guilty, a sentence of eight years’ imprisonment would have been called for. In recognition of the timely pleas he imposed the head sentence of six years and fixed a non parole period of four years to which I have already referred.
In essence, it is argued on behalf of the appellant that, even given the seriousness of the offences, the sentence imposed is crushing and well outside the sentencing norms for this type of matter, particularly given the young age of the offender and other mitigating factors. It is also complained that the discount allowed for the timely pleas was unduly modest.
On the hearing of the appeal considerable time was occupied by counsel for the appellant in contrasting the sentence in this case with those imposed in other, generically similar, cases.
It must at once be said that such an exercise is of quite limited benefit. The circumstances of each incident, the severity of outcomes of it and relevant factors personal to the offender vary so much that it is difficult, if not impossible, for meaningful comparisons to be made. At best other cases can provide some, very broad, indication of general sentence tariffs. In the present case there is the added complication of the multiplicity of offences.
It seems to me that the submissions which have been made on behalf of the appellant really tend, largely, to ignore one aspect of this matter which must assume paramount importance.
It must be borne firmly in mind that, although the various charges arose from a single, continuing course of conduct, nevertheless the learned sentencing judge was called upon to determine a single composite sentence which adequately satisfied the factors of punishment and deterrence. As Wells J pointed out in The Queen v O’Loughlin: ex parte Ralphs [1971] 1 SASR 219, in a situation such as that now under consideration, the offences charged, all of which are extremely serious in nature, must be seen as quite independent breaches of the law which happened to occur at the same, or a similar, point in time. They could, quite fairly, each have attracted separate sentences.
In assessing what composite sentence was appropriate in this case the learned sentencing Judge had to consider not only that, bearing in mind the circumstances as I have outlined them, these offences clearly ranked amongst the most serious of their type, but also that it is quite erroneous in principle that some discount for quantity should be allowed for multiple offences arising from the same general incident.
In arriving at a final conclusion, due regard must always be had to the totality principle. In addressing that issue it had to be borne in mind that the facts and circumstances were unique. They necessarily attracted condign punishment.
However, having regard to what was said by King CJ in The Queen v Johnston (1985) 38 SASR 582, it seems to me that the commencement point adopted by the learned sentencing Judge was unduly high and did not reflect current sentencing tariffs for these types of offence. This is readily discernible from the material to which counsel invited our attention.
I consider that, having regard to the various factors which were identified by Mr Peek - particularly the young age of the appellant and the fact that he had not previously served a custodial sentence - the sentence imposed must be said to be manifestly excessive. An additional factor which also leads to that conclusion is that, although the conduct of the appellant on the night in question undoubtedly constituted very serious breaches of the law, the actual accident which ultimately took place was, at least in part, a product of the fact that the road ahead effectively became blocked by the presence of the second police vehicle. In a very real sense this left the appellant, literally, with nowhere to go.
I would therefore allow the appeal for the purpose of reducing the head sentence to five years and the non parole period to three years.
I also consider that the period of licence disqualification was too long, bearing in mind the severe custodial sentence already imposed. It is certainly disproportionate to the adjusted sentence which I propose. I would reduce the period to nine years, which is still a very substantial term of disqualification by contemporary standards.

PRIOR J

Had the appellant not been sentenced on the basis of submissions put by counsel that the road may well have been blocked by the police car overtaking the taxi, I would not have interfered in this case. That being the basis upon which the matter proceeded, I agree with the reasons given by Olsson J, and with the orders he proposes.

LANDER J

The facts have been fully set out in the reasons of Olsson J. There is no doubt that this appellant had a very bad driving record prior to this offence. His behaviour in driving on the night in question, as the reasons of Olsson J demonstrate, was appalling. He caused the death of a young man, and serious bodily injury to four other persons. Moreover, his driving endangered the lives of four other persons.
The appellant has demonstrated that he is presently not fit to drive a motor vehicle. The appellant's behaviour required a severe penalty. It required an immediate term of imprisonment. Suspension of that sentence could not have been an appropriate option.
The only matters of mitigation that were relevant were the appellant's age, his previous work history and the contrition which he has exhibited in a number of ways, including the very early plea of guilty. His prospects of rehabilitation could not have been ignored.
I have found this matter difficult, but in the end I have been persuaded by Mr Peek, counsel for the appellant, that the learned sentencing judge took too high a starting point for the purpose of the sentencing process pursuant to s18A of the Criminal Law Sentencing Act. I think that commencing with a starting point of eight years after taking into account the appellant's age, his work history and his prospects of rehabilitation was, given previous decisions of this court, too high. I agree, therefore, that the appeal ought to be allowed and I agree with the sentence proposed by Olsson J.

[1998] SASC 6816

20 August 1998