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.

1. This is an appeal against sentence.

2. 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. 

3. For the reasons that follow, I would dismiss the appeal and refuse the application for permission to appeal.

   Background

4. The defendant and appellant, Luke Davidson, pleaded guilty to the offence of resisting a police officer in the execution of his duty and to the further offence of 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.

5. 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

6. 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. 

7. 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.

8. 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.

9. As a result of the collision, the driver of the sedan lost consciousness for a short time.  She was conveyed to a hospital where she was treated for her injuries.  Her victim impact statement discloses that she suffered fractured and bruised ribs, damaged tendons in her left elbow and associated swelling, bruises and pain. 

10. The Judge addressed the defendant’s personal antecedents as follows:

    You are 23 years of age. Your parents separated when you were born. You maintained a healthy and positive relationship with your mother until your early 20s. Your mother remarried when you were about 8 years of age. Apparently you had a very poor relationship with your stepfather. He frequently subjected you to physical abuse which caused you to regularly run away from home. Your mother’s relationship with your stepfather ended when you were about 13 but you still resent the way he treated you.

    Unfortunately, your relationship with your mother has now broken down. On your last release from parole you went to stay with her and discovered she had turned into a drunk and a ‘junkie’ using drugs intravenously. You refuse to have contact with her until she eliminates drug addiction from her life. You say that you felt betrayed that your mother was unable to provide you with the support you needed following your release from prison. But you also believe that your conduct over the years contributed to her demise.

    You had no contact with your biological father until you were about 13 years of age. Your mother refused to allow contact by reason of his involvement in criminal activity. You say that your father has turned his life around and that you hope to emulate him. He has attended these proceedings with his new partner with whom you enjoy a good relationship.

    You have an 8-year-old son as a result of a brief relationship.  Your son and his mother now live in Sydney. You have only met your son once, and express no desire to be involved with him again. I have been told that you are now in a relationship with Ms Howlett and the relationship has been ongoing for about three years. You reported to the psychologist that Ms Howlett has been a positive influence in your life and that she has inspired in you a desire to cease offending and start a family with her. You fear that if you continue to spend extended periods of time in custody your relationship with her will end.

    You have had a problem with alcohol and drugs over the years. You began using cannabis and consuming alcohol at a very early age. You told Ms Barklay that you stopped using those substances because you found them boring. You have been a long time user of methylamphetamine. You were consuming the drug on a daily basis for a number of years prior to your incarceration in 2008. After your most recent release on parole you began using the drug again. You say that since your arrest in relation to the present matter you have remained amphetamine free but dependent on the drug substitute Suboxone.

11. The Judge had regard to psychological reports prepared by Carol Cayley and Madeline Barklay:

    The psychologists believe that you suffer from a range of conditions, including post-traumatic stress disorder, alcohol dependence, paranoid personality disorder, borderline personality disorder, anxiety and depression. The material before me further indicates that you have a history of self-harm and suicide attempts. As a teenager you were hospitalised for overdosing on antidepressant medication and after your last release from prison you engaged in similar conduct. You reported to Ms Barklay that since you have become involved with Ms Howlett you no longer entertain self-harm or suicidal thoughts.

12. The Judge addressed the defendant’s criminal antecedents as follows:

    Regrettably you have a substantial criminal history. Your offending commenced as a juvenile in late 2002 when you were 13 years of age. During your years as a juvenile you committed numerous offences involving dishonesty, violence, including multiple robberies, aggravated serious criminal trespass and assaults.  Your history as a juvenile also contains many convictions for motor vehicle offences, including convictions for interfering with motor vehicles, driving without a licence, and three convictions for dangerous driving. One such conviction related to an offence of driving dangerously to escape a police pursuit.

    Your offending as an adult commenced shortly after you turned 18. On 28 February 2008 you were sentenced in this court to imprisonment for four years and six months with a non-parole period of two years and three months for two counts of aggravated robbery and one count of theft. On 27 March 2009 you were sentenced to a further 21 months imprisonment with your non-parole period extended to three years and six months for escaping custody and illegally using a motor vehicle. More recently on 12 February 2013, you were again sentenced in this court to just over five months imprisonment for the offence of assault.  It is also to be observed that during 2012 you were sentenced on several occasions in the Magistrates Court for a range of less serious offences which resulted in you having to serve a period of community service which you later breached.

    Your criminal history reveals a continuing contempt for the law and the rights of others. You have responded poorly over the years to court orders as demonstrated by your numerous failures to comply with bail agreements, bonds and community service orders. Further, the pre-sentence report indicates that you have shown a lack of commitment to comply with the conditions imposed upon you by the Parole Board. This lack of commitment led to numerous breaches of your parole as set out in a letter from the Parole Board dated 14 January 2014 which resulted in cancellation of your parole and the issue by the Parole Board of the warrant police were attempting to execute on the day of the offences.

13. In fixing the defendant’s sentence, the Judge noted:

    I will give you credit for your guilty pleas. By reason of their timing you are entitled to a sentencing discount of up to 30%. However I do not believe you deserve a discount over 20%. The case against you was overwhelming. Furthermore, while I am prepared to accept that you regret the injuries caused to Ms Feklistova, I do not accept, in the light of your bad history and the nature of the offences you have committed in the past, that you genuinely regret driving in the manner in which you did to escape police. Indeed Ms Barklay’s report discloses that you blame the police for your current predicament. You told her that they acted like ‘wankers’. That statement reflects a lack of insight into the gravity of your conduct. There are however some positives signs. You are taking part in the Making Changes Program while in prison. Hopefully that will have a positive impact on you.

    …

    … Your manner of driving in the present case was outrageous.  In an unlawful attempt to escape police you engaged in conduct that endangered the life of other road users and caused actual injury to Ms Feklistova. The courts must do what they can to deter people from engaging in such dangerous and reprehensible conduct by imposing substantial terms of imprisonment. It is also necessary to impose a sentence that will bring home to you that your continuing flagrant disregard for the law will not be tolerated.

14. While the defendant was taken into custody on 21 June 2013, he was required to first serve the unexpired balance of his parole and a further sentence of four months imprisonment imposed in the Magistrates Court on 21 January 2014 in relation to an offence of failure to comply with a bail agreement.  Accordingly, as earlier noted, the defendant’s sentence was backdated to commence on 21 May 2014. 

    The Application for Permission

15. The offence of aggravated causing harm by dangerous driving was particularised in the Information as occurring at Albert Park.  It was alleged that the defendant “drove a motor vehicle in a culpably negligent manner, or recklessly, or at a speed or in a manner which was dangerous to the public, and by that culpable negligence, recklessness or other conduct, caused harm to Oksana Feklistova”.

16. In his remarks, the Judge commenced his description of the defendant’s offending as follows:

    The circumstances of your offences are as follows: at about 9 a.m. on 21 June 2013, Constables Smith and Mannering were carrying out patrol duties in a marked police car and saw you driving along Commercial Road, Port Adelaide. …

    The Judge went on to describe the defendant’s conduct up to the point where he was detained by the police officers.

17. On the appeal, the defendant submitted that the driving on Port Road was not sufficiently proximate to the crash on West Lakes Boulevard such that it could be said that it caused harm to the victim.  It was submitted that the one count of aggravated causing harm by dangerous driving could not be said to encapsulate the driving on Port Road, and that the Judge had therefore erred in sentencing the defendant in relation to conduct with which he had not been charged. 

18. A difficulty confronting this submission arises from the manner in which the proceedings unfolded before the sentencing Judge.  Initially, the defendant was charged with the offence of driving dangerously to escape police and also to the offence of causing harm by dangerous driving, aggravated by his attempt to escape police.  The circumstances leading to the causing of harm involved dangerous driving commencing on Commercial Road, Port Adelaide and continuing along a series of roads until the defendant collided head on with another vehicle on his incorrect side of the West Lakes Boulevard.  At the time of sentencing submissions, the 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.  Both counsel agreed with this suggestion and, as a consequence, the defendant was re-arraigned on the charge of driving dangerously to escape police.  He was permitted to withdraw his plea of guilty and to enter a plea of not guilty.  The prosecutor then withdrew that charge. 

19. The sentencing Judge addressed this topic at the outset of his reasons in the following terms:

    Luke Davidson you pleaded guilty in the Magistrates Court to one count of driving dangerously to escape police and one count of causing harm by dangerous driving, aggravated by your attempting to escape police and were committed to this court for sentence. Both the prosecution and your counsel agree that no plea should have been taken from you in respect to the offence of driving dangerously to escape police because that constituted an element of a more serious offence of aggravated causing harm by dangerous driving. I directed that you be rearraigned on the charge of driving dangerously to escape police and you entered a plea of not guilty. The charge was then discontinued.

20. A review of the transcript before the sentencing Judge confirms the accuracy of these observations.  There was no suggestion that the Judge should proceed, having regard to part only of the course of conduct. 

21. On 29 September 2014, a Judge of this Court refused permission to appeal in respect of the complaint that the defendant was sentenced for conduct which fell outside the charged conduct.  The Judge provided the following short ex tempore reasons for refusing permission:

    Given that the applicant was charged and pleaded guilty to aggravated causing harm by dangerous driving where the aggravating feature was the attempt to escape police [it] seems to me that the driving must be considered to be one continuous act of driving culminating in the injury to the victim.

22. In support of the application for permission, counsel before this Court suggested that it was not open to the sentencing Judge to proceed as he did and that only the course of driving immediately leading to the collision should have been considered.  In my view, this submission is unwarranted and can fairly be described as disingenuous.  I agree with the observations of the Judge refusing permission.  The 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 West Lakes Boulevard. 

23. I would refuse permission to appeal.

    Appeal

24. On the appeal, the defendant contended that the sentence imposed was manifestly excessive. 

25. The maximum penalty for an aggravated offence of causing harm by dangerous driving is imprisonment for seven years.  The maximum penalty for an offence of resisting police is imprisonment for six months. 

26. The defendant submitted that the Judge’s starting point of five years’ imprisonment was manifestly excessive having regard to both the circumstances of the offending and the personal circumstances of the defendant.  It was contended that neither the defendant’s manner of driving nor the injuries suffered by the driver of the Toyota Sedan were at the extreme end for offences of this type.  Accordingly, the defendant submitted that the conduct did not warrant a starting point so close to the applicable maximum. 

1. In regard to his personal circumstances, the defendant contended that his relative youth – he was aged 24 years at the time of the offending – meant that rehabilitation was to be accorded more weight.  He further submitted that, as he was a young man with a difficult personal history, he was more prone to ill-considered or rash conduct.  Attention was drawn to the fact that the defendant had symptoms of depression, anxiety and a post-traumatic stress disorder.  This was said to be relevant to the defendant lacking the skills to deal with the difficult situation that he found himself in. 

2. Counsel for the Director contended that the overall sentence was not manifestly excessive.  It was submitted that a discount of 20 per cent on account of the guilty pleas could be characterised as generous in circumstances where the defendant was confronted by an overwhelming prosecution case.  It was pointed out that there was a lack of genuine contrition.  Reference was made to the defendant’s comments to one of the reporting psychologists that he “felt that it was the police’s fault that he was currently incarcerated on remand”. 

3. Counsel for the Director submitted that the sentence imposed properly reflected the following relevant facts:

   -the offence occurred while the defendant was on parole, which was an aggravating circumstance;

   -the aggravating feature of the offence involved driving recklessly or at a speed or in a manner dangerous while escaping pursuit by a police officer. This aggravating feature is itself an offence pursuant to section 19AC of the Criminal Law Consolidation Act 1935 (SA), which carries a maximum penalty of three years’ imprisonment for a basic offence. This was therefore a particularly serious aggravating circumstance;

   -the sentence encapsulated two offences – the aggravated causing harm by dangerous driving and resisting arrest;

   -the speeds at which the defendant drove and his act of driving on to the wrong side of the road into oncoming traffic were extremely dangerous acts.  The roads were wet and it was 9.00 am on a weekday.  The possibility of vehicles entering main roads at such times is high;

   -the defendant’s previous behaviour on parole, his drug addiction and his continued use of drugs while on parole and the day before the offence undermine any claim that the protection of the community was not an important consideration in the sentencing process; and

   -the defendant had been convicted on three previous occasions of driving in a manner dangerous to the public, including one involving escaping a police pursuit, and 21 previous instances of either failing to comply with bail agreements or breaching his bond.  The defendant was therefore not entitled to the leniency that may be accorded to a first offender. The defendant’s antecedents further indicated a willingness to act in complete disregard for the rules of the road and without regard to the consequences to, and the well-being of, others.  The sentence therefore had to give effect to personal deterrence.

4. The sentencing Judge was correct to describe the defendant’s criminal conduct as outrageous.  As earlier noted, his offending was aggravated as he was in breach of his conditions of parole at the time.  The reason for his seeking to escape police was to avoid the execution of a warrant for his arrest.  It is possible that the defendant’s initial decision to flee was a spur of the moment decision.  However, his conduct thereafter was deliberate.  During the course of the pursuit, his vehicle stopped at lights, with the police vehicle directly behind.  His decision to continue and attempt to escape was deliberate and no longer a decision that could be described as being made in the spur of the moment. 

5. The defendant’s criminal antecedents precluded the leniency that would attach to an offender without relevant antecedents.  The reports from the psychologists, Dr Cayley and Ms Barklay, addressed the question of the defendant’s prospects for rehabilitation in some detail.  Both were guarded in their comments, acknowledging that there was some prospect for rehabilitation, though there were substantial impediments that lay in the path of the defendant.  It is relevant in this respect, as the sentencing Judge observed, that the defendant lacked insight into the gravity of his conduct.

6. 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

7. I would dismiss the appeal and I would refuse permission to appeal.

8. VANSTONE J:     I agree that, for the reasons written by Gray J, permission to appeal should be refused.

9. PEEK J.   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.