R v Dundovic - [2008] SASC 136

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v DUNDOVIC
[2008] SASC 136
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Bleby and The Honourable Justice Anderson)
23 May 2008
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY ATTORNEY-GENERAL OR OTHER CROWN LAW OFFICER - APPLICATIONS TO INCREASE SENTENCE
Application for permission to appeal against sentence and appeal against sentence by Director of Public Prosecutions - respondent involved in high-speed chase to elude police which resulted in a high speed collision causing the death of another driver - respondent pleaded guilty to an aggravated offence under s 19A(1) of the Criminal Law Consolidation Act 1935 (SA) of driving a vehicle in a culpably negligent manner, or recklessly, or at a speed or in a manner dangerous to the public causing death, and also to an offence under s 19A(3) of the Criminal Law Consolidation Act 1935 (SA) of driving a vehicle in a culpably negligent manner, or recklessly, or at a speed or in a manner dangerous to the public causing harm to his passenger - maximum sentence of life imprisonment and a licence disqualification for at least ten years for offence under s 19A(1) - respondent sentenced in District Court to four years ten months two weeks - whether sentence manifestly inadequate - whether proper case for intervention of the Court of Criminal Appeal.
Held: sentence manifestly inadequate, particularly in light of the seriousness of the offending conduct, the maximum sentence that applies and the respondent's bad criminal history and the lack of any significant mitigating factors - application for permission to appeal against sentence granted and appeal against sentence upheld - District Court sentence quashed - new sentence imposed of 11 years two months with a non-parole period of nine years two months - respondent disqualified from holding or obtaining a driver's licence for not less than ten years and then until further order.
Criminal Law Consolidation Act 1935 (SA) s 5AA(1a)(a), s 5AA(1a)(c), s 19A, s 19A(1), s 19A(3), s 19A(7); Criminal Law (Sentencing) Act 1988 (SA) s 10(1)(b), s 10(1)(c), s 31, s 32(2), s 32(5)(a), s 32(5)(ba), s 32(10)(d), s 32A(1), s 32A(2), s 32A(2)(a), s 32A(2)(b), 32A(3); Correctional Services Act 1982 (SA) s 75, referred to.
R v Hietanen (1989) 51 SASR 510; R v Nemer (2003) 87 SASR 168, applied.

R v DUNDOVIC
[2008] SASC 136
Court of Criminal Appeal: Doyle CJ, Bleby and Anderson JJ

DOYLE CJ. Mr Dundovic pleaded guilty to two charges. First, a charge under s 19A(1) of the Criminal Law Consolidation Act 1935 (SA) (“the CLCA”) of driving a vehicle in a culpably negligent manner, or recklessly, or at a speed or in a manner dangerous to the public, thereby causing the death of Mr Godfrey. The offence is an aggravated offence, and so attracts a maximum punishment of imprisonment for life and a licence disqualification for at least ten years. The second charge was under s 19A(3) of the CLCA. The charge was that he drove, on the same day and at the same place, in a culpably negligent manner, or recklessly, or at a speed or in a manner which was dangerous to the public, thereby causing harm to Ms Cailes. That offence also was an aggravated offence. It attracts a maximum punishment of imprisonment for seven years and a licence disqualification for at least three years.
The Judge imposed a single sentence of imprisonment. The Judge appropriately reduced the sentence by nine months and two weeks, to allow for time spent in custody by Mr Dundovic. The sentence that the Judge would have imposed was one of imprisonment for five years eight months, but after the reduction it became a sentence of four years ten months two weeks. In fact, due to some errors by the Judge, the recorded sentence is different. I will return to that.
The Director of Public Prosecutions has applied for permission to appeal against the sentence. He submits that the sentence is manifestly inadequate, and that this is a proper case for intervention by the Court.
The application raises the question of the proper approach to sentencing for an offence against s 19A of the CLCA, having regard to amendments to the CLCA that came into effect on 30 June 2006. Those amendments provided for new maximum punishments, and created the concept of an aggravated offence and a basic offence under s 19A. The application also raises the question of whether the sentence is manifestly inadequate, and whether there are circumstances that call for intervention by this Court.
Facts
Early one morning in February 2007 police officers on patrol observed a Holden Calais sedan being driven by Mr Dundovic. It had been reported as stolen. Mr Dundovic was not sentenced on the basis that he had stolen the car, or that he knew that his use of it was unlawful. I understand that this aspect of the matter is the subject of other charges. It was because the Calais had been reported as stolen that it attracted the attention of the police.
The police pursued Mr Dundovic. Mr Dundovic drove at such a high speed (at least 100 kilometres per hour) that the police abandoned the pursuit.
About two hours later another police patrol observed the Calais being driven by Mr Dundovic. Another high-speed pursuit ensued, but Mr Dundovic eluded the police.
About 4.30 am the police again observed the Calais being driven by Mr Dundovic. Another high-speed pursuit ensued. It continued for some time. Although traffic was light, Mr Dundovic’s driving created a risk of injury to other road users. There is no need to go into the details. It suffices to say that he drove at a high speed, drove through red lights and, towards the end of the chase, was driving with the lights of the Calais extinguished.
The Calais being driven by Mr Dundovic collided with a car being driven by Mr Godfrey, who was on his way to work. Mr Godfrey was travelling in the opposite direction at the relevant time, and was turning across the path of Mr Dundovic. Mr Dundovic’s speed at the time of the collision is estimated at about 160 kilometres an hour. As the lights of the Calais were extinguished, it is probable that Mr Godfrey did not see Mr Dundovic approaching, or he might not have appreciated the speed at which he was approaching.
Tragically, Mr Godfrey died at the scene. Ms Cailes, a passenger in the Calais, suffered relatively minor injuries. So did Mr Dundovic. Another passenger fled from the scene.
Sentencing considerations
This was a very serious instance of offences against s 19A of the CLCA. The tragic and unnecessary death of Mr Godfrey illustrates the danger that Mr Dundovic created that night. His driving was extremely reckless. Reading the more detailed description of events that was available to the sentencing Judge, it seems inevitable that there was going to be a collision with another car sooner or later.
The fact that there had been two pursuits by police earlier that night is an aggravating factor: see s 10(1)(c) of the Criminal Law (Sentencing) Act 1988 (SA) (“the Sentencing Act”). It demonstrates that the pursuit the subject of the charges was not due to momentary panic by Mr Dundovic. Despite the two earlier pursuits, he had decided to keep driving the Calais, and if observed by the police, to attempt to outrun them yet again. He was prepared to run the risk that he would encounter the police, and to create the risks inherent in another high speed chase.
Each offence is an aggravated offence for the purposes of s 19A by virtue of s 5AA(1a)(a) and (c) of the CLCA, which respectively provide:
5AA(1a)For the purposes of section 19A, an aggravated offence is an offence committed in the following circumstances:
(a)the offender committed the offence in the course of attempting to escape pursuit by a police officer;
…
(c)the offender committed the offence as part of a prolonged, persistent and deliberate course of very bad driving or vessel operation; …
There are other circumstances of aggravation, by which I mean circumstances that apart from any statutory provision make the offending worse.
There were two passengers in the Calais. Mr Dundovic endangered them as well as members of the public. He was found to have amphetamine and methamphetamine in his blood. There was evidence before the sentencing Judge to show that this drug can cause over confidence and risk taking. Mr Dundovic was on parole, having served part of a sentence imposed in May 2005 for serious offences. Mr Dundovic was on bail at the time of the offences. He was in breach of a bail curfew condition by being out and about at the time in question. Mr Dundovic had no driving licence, and had never had one.
The Judge said that Mr Dundovic’s conduct was “towards the upper end of the scale of seriousness for crimes of this type”. I consider that this statement understates the matter. I regard Mr Dundovic’s offences as being of the most serious kind that the Court is likely to encounter. One can always postulate a worse case, and I do not suggest that there cannot be more serious cases. That is not to the point. My point is that these offences are offences of the worst kind, or of the same order as offences of the worst kind.
There is almost nothing by way of mitigation in Mr Dundovic’s personal circumstances. He is 24 years of age. The Judge described his childhood as “unfortunate”. I agree. As the Judge said, his upbringing gave him “no real guidance in life”. Mr Dundovic said that he had been affected by the death of a sister in 2003. About 11 days before he committed the offences, he said that he had learned that his father had cancer, and on learning this resumed taking methamphetamine, from which he had abstained while on parole.
It is appropriate to recognise, and to make some allowance for, the impact on Mr Dundovic of his upbringing. The same applies to his family circumstances. But his very bad record, to which I refer below, means that little allowance can be made on this score.
Mr Dundovic has a long record of offending between 1999 (when he was aged 15) and September 2004 (when he was aged 21). He was last sentenced to imprisonment in May 2005. His record of offences includes a number of offences involving assaults and offences involving criminal trespass. As well he has what the Judge described as an “appalling” record of traffic and vehicle offences, throughout the period of offending. He has also been found guilty of breaching a bond on several occasions. His prior offending includes offences arising from a police pursuit in October 2003 and from another police pursuit in September 2004. Mr Dundovic has had the benefit of a bond on a number of occasions. He has served several sentences of imprisonment. His record suggests that he is not a good candidate for parole.
It is apparent that the prospects of Mr Dundovic rehabilitating himself are not good, at this stage. He has continued to offend, despite attempts to help him, despite earlier lenience, and despite earlier punishment.
Mr Dundovic is entitled to a reduction in his sentence for his early plea of guilty. The Judge reduced the sentence by 20 per cent. That was generous. The prosecution case was overwhelming. Moreover, although the Judge accepted that Mr Dundovic regrets the death of Mr Godfrey, the Judge did not find that Mr Dundovic was genuinely contrite and remorseful.
The impact of Mr Godfrey’s death on his family is a matter that must be borne in mind. He has been taken from the family that he loved, and that loved him, in circumstances that can only add to the grief of his family.
It is apparent that Mr Dundovic’s personal circumstances contain almost nothing by way of mitigation. The most that can be said is that he has had a difficult upbringing, but that he has shown little or no inclination to change his ways. His prospects of rehabilitation are not good. It is not appropriate to sentence him on the basis that he will now change his ways.
The seriousness of the offences, and Mr Dundovic’s circumstances, are to be taken into account.
It is also necessary to have regard to such of matters set out in s 10(1) of the Sentencing Act as are relevant. I refer as well to s 10(1b) which states:
10 Matters to be considered by sentencing court
…
(1b) A primary policy of the criminal law is to protect the safety of the community.
Mr Dundovic has demonstrated by his behaviour that he is likely to put members of the community at risk, and that he is a person against whom the community requires protection. It is apparent that Mr Dundovic gives no thought to, and has no concern for, the risk of harm to members of the community that his behaviour can create. Deterrence and protection of the community are significant factors when considering an appropriate sentence.
Parliament amended s 19A of the CLCA with effect from 30 June 2006, to create the category of an aggravated offence, attracting life imprisonment, and defining an aggravated offence in s 5AA. The fact that the maximum punishment for these offences is life imprisonment demonstrates the seriousness with which Parliament views offences against s 19A. This is something that must be acknowledged by sentencing judges. It does not follow that sentences for all offences against s 19A, or even for all offences attracting the maximum punishment, must increase: see R v Hietanen (1989) 51 SASR 510 at 516, King CJ. But due regard must be paid to the seriousness of an offence, having regard to the maximum punishment stipulated by Parliament.
Another relevant factor in the present case is that attempts by drivers of motor cars to outrun police, when called upon to stop, are fairly common. This is a form of offending that puts innocent members of the public at risk of serious injury or death, merely because they happen to be on the road when and where the pursuit takes place. The prevalence of this kind of offending, and the risk of harm that it creates, warrants a firm response from the courts, with due attention being paid to general deterrence. The fact that Mr Dundovic has prior convictions arising from police pursuits, and was involved in two earlier pursuits on the night in question, emphasises the importance of general deterrence and, in his case, the need for individual deterrence.
Is the sentence manifestly inadequate?
When all the relevant circumstances are taken into account, I consider that the sentence is manifestly inadequate, particularly in light of the seriousness of the offending conduct, the maximum punishment that applies, Mr Dundovic’s bad record and the absence of significant mitigating circumstances.
It was appropriate for the Judge to exercise the powers conferred by s 18A of the Sentencing Act, and to impose a single sentence. The same act of driving gave rise to each of the two offences, although the death of Mr Godfrey and the injury to Ms Cailes properly resulted in separate charges: see s 19A(7) of the CLCA.
I consider that, before making a reduction for the plea of guilty, a single sentence of imprisonment for 14 years was called for. I arrive at that figure on the basis of a sentence of imprisonment for 12 years for the offence against s 19A(1), and for two years for the offence against s 19A(3). I am conscious of the need to avoid double punishment for the same act of dangerous driving. It is on that basis that the punishment for the offence against s 19A(3) is as low as it is. If it stood alone, the punishment for that offence would be greater. I would reduce that sentence by 15 per cent on account of the guilty plea, resulting in a sentence of imprisonment for 11 years 11 months.
It is apparent that the Judge has erred. His comment that the offences were towards the upper end of the scale of seriousness indicates that he underestimated the seriousness of the offences. But in any event, a sentence as low as that that the Judge imposed cannot be justified in the circumstances.
It does not follow that permission to appeal should be granted: see R v Nemer [2003] SASC 375, (2003) 87 SASR 168 at [22]-[32], where I reviewed the relevant principles. Something more than error is usually required before the Court will grant permission to the Director to appeal against a sentence.
There are two factors in the present case that support a grant of permission to appeal. First, the sentence that the Judge imposed is so far below what I consider to be appropriate, that it calls for correction. To allow the sentence to stand would tend to shake public confidence in the administration of justice. The second factor is that the sentence that the Judge imposed does not reflect an appropriate standard of punishment for offences of the kind in question. To some extent that can be corrected by the Court indicating what is an appropriate sentence, but maintenance and observance of appropriate standards of sentencing is a relevant factor for consideration.
I consider that permission to appeal should be granted. For the same reasons, I would allow the appeal. The error that is manifest should be corrected.
It is appropriate, as the Judge did, to give credit for the time spent in custody. The parties agreed on appeal that the period for which credit is to be given is in fact nine months four days, and not nine months two weeks as stated by the Judge. The days can be ignored. Accordingly, an appropriate sentence, after the reduction for the plea of guilty, and giving credit for the time in custody is a sentence of imprisonment for 11 years two months.
Mr Dundovic is liable to serve the balance of the sentence of imprisonment in respect of which he was on parole: s 75 of the Correctional Services Act 1982 (SA). It is agreed that that balance is a period of four months and one day. Mr Dundovic became liable to serve that balance upon being sentenced for the offences now under consideration, and so he began to serve that balance on 25 February 2008, the day when he was sentenced.
Accordingly, it is appropriate to direct that the sentence of imprisonment for 11 years two months be cumulative upon the sentence of four months one day, and commence upon the expiry of that sentence: s 31 of the Sentencing Act.
Next, it is necessary to fix a non-parole period, having regard to the total period of imprisonment that Mr Dundovic is liable to serve: s 32(2) of the Sentencing Act. That is a total period of 11 years six months one day.
The fixing of the non-parole period raises a number of issues on which the parties made no submissions. As will appear, in the end I have not found it necessary to resolve these issues. But they are issues that will arise in the future, and I consider that it is appropriate to identify them now, so that they are not overlooked.
For the purposes of s 32(5)(ba) of the Sentencing Act, the offence against s 19A(1) of the CLCA is a serious offence against the person, because it resulted in Mr Godfrey’s death: s 32(10)(d) of the Sentencing Act. A mandatory minimum non-parole period (four-fifths the length of the sentence) is prescribed by s 32(5)(ba) of the Sentencing Act.
Accordingly, a non-parole period in respect of that offence must be four-fifths the length of the sentence, unless it is inappropriate to fix such a period having regard to the circumstances set out in s 32A(2) and 32A(3) of the Sentencing Act.
The present case appears to be affected also by s 32(5a) of the Sentencing Act, which provides:
32Duty of court to fix or extend non-parole periods
…
(5a) If a person is sentenced under section 18A to the 1 penalty for a number of offences and a mandatory minimum non-parole period is prescribed in respect of the sentence for 1 or more of those offences, the non-parole period fixed in relation to the sentence imposed under that section must be at least the length of the prescribed mandatory minimum non-parole period.
The application of this provision to the present case is not straightforward. Does it require only that the non-parole period be at least four-fifths the length of the sentence that I would impose for the offence that attracts the mandatory minimum non-parole period? That is the offence against s 19A(1). Or does the provision refer to the total sentence imposed under s 18A? That includes the sentence for the offence against s 19A(3), which does not attract a mandatory minimum non-parole period. To so read it would work a hardship on the offender. It would require the non-parole period to be at least four-fifths of a total sentence under s 18A that includes a sentence in respect of offences that do not attract a mandatory minimum non‑parole period.

For the purposes of illustration only, I will assume that I should calculate the prescribed mandatory minimum non‑parole period in relation to the sentence imposed in respect of the offence against s 19A(1). That sentence is 12 years less 15 per cent for the plea of guilty. How is allowance to be made for time spent in custody? Does one make that deduction (for time spent in custody) from the main offence for which a sentence is to be imposed? That would mean that the mandatory minimum non-parole period is four-fifths of, on my calculations, nine years five months. So the mandatory minimum non-parole period in relation to the offence against s 19A(1) would be seven years six months. I have ignored fractions for these purposes. Or does one apportion the time spent in custody as between the two offences, and if so on what basis?
These are some of the issues that will arise when the application of s 32(5a) arises in a case like this one. I return now to the decision in this case.
The fact that Mr Dundovic pleaded guilty is capable of supporting a conclusion that there are special reasons for fixing a non-parole period shorter than the prescribed period: s 32A(2)(b) of the Sentencing Act.
I am not persuaded in the circumstances of this case that the plea of guilty amounts to special reasons for fixing a shorter non-parole period than the prescribed period, whatever approach is taken to the application of s 32(5a) to the facts. It could be argued that a non-parole period longer than the prescribed period is called for: see s 32A(2)(a) of the Sentencing Act. Having regard to the circumstances of the case, I consider that a lengthy non-parole period is called for.
The non-parole period that I must fix is to be fixed in relation to the total period of imprisonment to be served, namely 11 years six months one day. In all the circumstances I consider that justice will be done if I fix a non-parole period of four-fifths of the total period to be served. That is, a non-parole period of nine years two months. If s 32(5a) of the Sentencing Act has the more stringent effect referred to above, then this non-parole period satisfies its requirements. To the extent that s 32A(1) might mean that the non-parole period for the offence against s 19A(1) should be more than four-fifths of the appropriate head sentence, that consideration can be balanced against the fact that the non-parole period in respect of the other sentences is a high one. As that non-parole period is fixed in relation to the total period of imprisonment, I would direct that the non-parole period commence on 25 February 2008.
It is apparent from this that the requirement to impose a mandatory minimum non-parole period will complicate the sentencing process in cases like this one.
I would order that Mr Dundovic be disqualified from holding or obtaining a driver’s licence for not less than ten years and then until further order. This order is warranted by Mr Dundovic’s persistent disregard of the requirement to obtain a driver’s licence by the fact that he has been disqualified from holding or obtaining a driver’s licence on eight previous occasions, and by his persistent offending against the road traffic laws.
There is one other matter that I should mention. The Judge appears to have added the sentence that he imposed to the unexpired balance of the sentence in respect of which Mr Dundovic was on parole, and then to have deducted the period in custody from that total, resulting in him ordering that Mr Dundovic be sentenced to imprisonment for five years two months two weeks, with a non-parole period of four years two months two weeks, that sentence operating from 25 February 2008. That sentence was erroneous. The unexpired balance of the sentence in respect of which Mr Dundovic was on parole, brought into effect by s 75 of the Correctional Services Act, had to be served before the sentence of imprisonment imposed by the Judge. Accordingly, the sentence had to be structured in the manner in which I have structured the sentence.
Orders
Accordingly, I would grant permission to the Director to appeal against sentence. I would allow the appeal. I would quash the sentence imposed by the District Court. In respect of the offences before the District Court, I would impose a single sentence of imprisonment for 11 years two months. I would direct that that sentence be served upon the expiry of the sentence of four months one day, brought into effect on 25 February 2008 by s 75 of the Correctional Services Act. In relation to the total period of imprisonment to be served by Mr Dundovic, I would fix a non-parole period of nine years two months, and direct that that non-parole period commence from 25 February 2008. I would order that Mr Dundovic be disqualified from holding or obtaining a driver’s licence for not less than ten years and then until further order.
BLEBY J. I agree with the orders proposed by the Chief Justice. I agree with his reasons and have nothing to add.
ANDERSON J. I agree with the orders proposed by the Chief Justice and I agree with his reasons.