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 136Court 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…
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- R v Dundovic [2008] SASC 136
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- [2008] SASC 136
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CaseChat Overview and Summary
The legal issues before the Court of Criminal Appeal were whether the District Court sentence was manifestly inadequate and if there were grounds for the Court to intervene. The court considered the seriousness of the offence, the maximum penalties, and the offender's criminal history. The Court also evaluated the absence of significant mitigating factors in Mr. Dundovic's case.
In determining the appropriate sentence, the Court of Criminal Appeal held that the District Court sentence was indeed manifestly inadequate. The Court considered the extreme recklessness and danger posed by Mr. Dundovic's actions, the lack of mitigating circumstances, and his poor criminal history. The Court imposed a new sentence of 11 years two months imprisonment with a non-parole period of nine years two months, and disqualified Mr. Dundovic from holding or obtaining a driver's licence for at least ten years. The Court concluded that the new sentence was commensurate with the seriousness of the offending conduct and the maximum penalties available.
Orders
Orders of the court
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Background
Background to the litigation
Evidence
Evidence Before The Court
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Decision
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Ratio Decidendi
Legal Principle Established
Established by: DOYLE CJ, BLEBY J, ANDERSON J
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.