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…

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 Dundovic

Details

AGLC: R v Dundovic [2008] SASC 136
Case: [2008] SASC 136
Decision Date: 23 May 2008

CaseChat Overview and Summary

The case of R v Dundovic involves the appeal against the sentence imposed on Mr. Dundovic for causing the death of another driver through culpable negligent driving. The Court of Criminal Appeal of South Australia reviewed the District Court's sentence of four years ten months two weeks, considering it manifestly inadequate given the gravity of the offences and the maximum penalties available under the Criminal Law Consolidation Act 1935 (SA). Mr. Dundovic's actions, including a high-speed chase that led to a fatal collision, were deemed extremely reckless and dangerous, warranting a significant penalty.

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

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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

DOYLE CJ BLEBY J ANDERSON J

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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.