R v Davidson - [2014] SASCFC 120

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v DAVIDSON
[2014] SASCFC 120
Judgment of The Court of Criminal Appeal
(The Honourable Justice Gray, The Honourable Justice Vanstone and The Honourable Justice Peek)
13 November 2014
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - GENERALLY
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - CULPABLE OR DANGEROUS DRIVING CAUSING DEATH OR BODILY HARM - GENERALLY
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST PEACE AND PUBLIC ORDER - ASSAULTING, RESISTING, HINDERING, OR OBSTRUCTING POLICE OFFICER - SENTENCE
Appeal against sentence. The defendant pleaded guilty to the offences of resisting a police officer in the execution of his duty and aggravated causing harm by dangerous driving. The circumstance of aggravation was that the offence was committed in the course of attempting to escape pursuit by a police officer. The Judge imposed one sentence in respect of both offences of imprisonment for four years. A non-parole period of two years and four months was fixed.
Whether the sentence imposed by the Judge was manifestly excessive. Whether the defendant should be granted permission to appeal on the ground that the Judge erred in sentencing the defendant in relation to conduct comprising the entirety of the police pursuit, and not just the conduct immediately preceding the collision that resulted in harm being caused to the driver of another vehicle. Where the defendant had initially been charged with the additional offence of driving dangerously to escape police. Where the defendant had been permitted to withdraw his plea to that offence when the sentencing Judge raised the issue of whether it would be more appropriate in the circumstances to treat the driving leading to the collision as an ongoing course of conduct, all encompassed within the offence of causing harm by dangerous driving, aggravated by the defendant’s attempt to escape police.
Held per Gray J (Vanstone and Peek JJ concurring)(dismissing the appeal and refusing permission to appeal on the second ground):
1. The sentence imposed was well within the Judge’s sentencing discretion.
2. The defendant’s course of driving was continuous, was in an effort to escape police pursuit and was a cause of the defendant driving head on into another vehicle on the incorrect side of the road.
Criminal Law (Sentencing) Act 1988 (SA) s 18A; Criminal Law Consolidation Act 1935 (SA) s 19AC, referred to.

R v DAVIDSON
[2014] SASCFC 120
Court of Criminal Appeal Gray, Vanstone and Peek JJ
GRAY J.

This is an appeal against sentence.
On the application for permission to appeal, a Judge of this Court granted permission in respect of a ground that complained that the sentence imposed was manifestly excessive. The Judge refused permission to appeal in respect of a further complaint that the sentencing Judge erred by sentencing for conduct which fell outside the charged conduct. The application for permission to appeal on this ground has been renewed before this Court.
For the reasons that follow, I would…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Davidson

Details

AGLC: R v Davidson [2014] SASCFC 120
Case: [2014] SASCFC 120
Decision Date: 13 November 2014

CaseChat Overview and Summary

The appeal concerned the sentence imposed on the defendant by the District Court for the offences of culpable driving causing death and resisting police. The defendant had pleaded guilty to both charges. The sentencing judge imposed a single sentence of four years imprisonment, reduced from five years due to the guilty pleas, with a non-parole period of two years and four months. The judge declined to suspend the sentence and backdated it to the date of arrest.

The legal issues before the appellate court were whether the sentencing judge had erred in the exercise of their discretion in imposing the sentence, and whether permission to appeal should be granted on a further proposed ground of appeal. The facts giving rise to the charges involved a police pursuit of the defendant, who was the subject of an active parole warrant. During the pursuit, the defendant drove at excessive speeds, crossed onto the wrong side of the road, and ultimately collided head-on with another vehicle, causing death. Following the collision, the defendant resisted arrest by kicking at and tensing his body to prevent police from handcuffing him.

The appellate court found that the sentencing judge had applied correct sentencing principles, considered relevant materials, and disregarded irrelevant ones. The court concluded that the sentence imposed was well within the sentencing judge's discretion.

Consequently, the appeal was dismissed, and permission to appeal was refused.

Orders

Orders of the court

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Background

Background to the litigation

On 18 July 2014, the defendant was sentenced in the District Court. The Judge imposed the one sentence in respect of both offences pursuant to section 18A of the Criminal Law (Sentencing) Act 1988 (SA) of imprisonment for four years, reduced from five years on account of the defendant’s guilty pleas. The Judge fixed a non-parole period of two years and four months. The Judge declined to exercise his discretion to suspend the sentence. The Judge backdated the sentence to 21 May 2014.The Facts At about 9.00 am on 21 June 2013, the defendant was observed driving along Commercial Road, Port Adelaide, by two police officers carrying out patrol duties in a marked police vehicle. At that time, the defendant was the subject of an active Parole Board warrant. The police followed the defendant along a series of roads before activating emergency lights and siren on Bishops Avenue, Alberton, in an attempt to get the defendant to stop. At that point, the defendant accelerated away from the police, speeding along Bishops Avenue. The defendant turned right onto Port Road, travelling in the direction of the city. The police pursued the defendant for a substantial distance down Port Road. The police estimated that the defendant reached speeds of 90 kilometres per hour. The speed limit on that section of Port Road was 60 kilometres per hour. When the defendant reached the intersection with West Lakes Boulevard, he applied his brakes and turned right onto West Lakes Boulevard. The defendant was stopped by vehicles which had pulled up at the intersection in response to a red traffic light. The police vehicle stopped behind the defendant. When the traffic lights turned green, the defendant accelerated, continuing along West Lakes Boulevard and overtaking traffic. The police pursued the defendant at a speed of about 90 kilometres per hour, but they reduced their speed out of concern for public safety. The defendant continued along West Lakes Boulevard and eventually crossed onto the wrong side of the road and drove towards oncoming traffic. Shortly thereafter, the defendant lost control of his vehicle and collided head on with a Toyota sedan. The police estimated that the defendant’s speed immediately before the collision was somewhere between 40 and 50 kilometres per hour. Following the collision, the defendant got out of the vehicle and ran along West Lakes Boulevard towards Clark Terrace. Constable Manning got out of the police vehicle and chased the defendant, calling out for him to stop. When Constable Manning caught up to the defendant, the defendant fell on the ground and kicked out at him. Constable Manning subdued the defendant with capsicum spray and was then assisted by the other police officer. The defendant attempted to prevent the police officers from handcuffing him by refusing to remove his arms from underneath his body and tensing his body. The defendant was forcibly handcuffed. This conduct gave rise to the charge of resist police. The defendant was taken to the Port Adelaide Police Station and interviewed. The defendant declined to answer any questions. The defendant has remained in custody since his arrest.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

GRAY J (dissent) PEEK J

The sentencing Judge provided comprehensive sentencing remarks, demonstrating the correct application of sentencing principle, an appropriate regard to the relevant materials and no regard to irrelevant materials. The sentence imposed, to my mind, was well within the Judge’s discretion. Conclusion I would dismiss the appeal and I would refuse permission to appeal. VANSTONE J: I agree that, for the reasons written by Gray J, permission to appeal should be refused. I agree that the appeal should be dismissed for the reasons given by Gray J. I agree that permission to appeal on the further proposed ground of appeal should be refused.

Ratio Decidendi

Legal Principle Established

Established by: PEEK J

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