R v Edwards

Case [2016] SASCFC 145

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v EDWARDS

[2016] SASCFC 145

Judgment of The Court of Criminal Appeal

(The Honourable Justice Blue, The Honourable Justice Lovell and The Honourable Justice Hinton)

21 December 2016

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE  - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE

CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-PAROLE PERIOD OR MINIMUM TERM  - SOUTH AUSTRALIA - PARTICULAR CASES

Crown appeal against sentences. The respondent was sentenced for multiple offences namely aggravated causing death by dangerous driving, aggravated serious criminal trespass in a place of residence, aggravated assault causing harm, being unlawfully on premises and damaging a motor vehicle. Some of the offences breached a 21 day suspended sentence bond.

For the offence of aggravated causing death by dangerous driving the respondent was sentenced to 3 years and 2 months imprisonment. A non-parole period of 2 years and 6 months was fixed. For all other offences the sentencing Judge utilised section 18A of the Criminal Law (Sentencing) Act 1988 (SA) and sentenced the respondent to 1 year and 8 months. A non-parole period of 12 months was fixed. The 21 day suspended sentence was revoked and the respondent received total sentences of 4 years 10 months and 21 days with a non-parole period of 3 years and 6 months. All sentences were made cumulative.

Whether sentences manifestly inadequate - whether sentencing Judge erred in his approach to fixing and accumulating the non-parole periods.

Held per the Court (granting permission to appeal):

1. The appeal is allowed.

2. The sentences imposed are manifestly inadequate.

3. The sentences and orders are set aside.

4. The respondent is resentenced.

5. For the offence of aggravated causing death by dangerous driving the respondent is resentenced to imprisonment for 4 years and 1 month. 

6. The suspended sentence of 21 days imprisonment is revoked and the respondent is to serve this sentence. This sentence is to be served cumulatively.

7. For the other offences using section 18A of the Criminal Law (Sentencing) Act 1988 (SA) the respondent is resentenced to imprisonment for 2 years and 5 months. This sentence is to be served cumulatively.

8. A non-parole period of 4 years is fixed.

9. The respondent is disqualified from holding or obtaining a driver's licence for 10 years to operate from the date he is released from prison.

Criminal Law Consolidation Act 1935 (SA) s 18A, s 32, referred to.
Everett v The Queen (1994) 181 CLR 295; R v Delphin (2002) 79 SASR 429; R v Mittiga [2010] SASCFC 67, applied.
Hili v The Queen (2010) 242 CLR 520; R v Hietanen (1989) 51 SASR 510; R v Shrestha (1991) 173 CLR 48; R v Shrestha (1991) 173 CLR 48; R v Singh (2011) 111 SASR 219; R v Van Der Heyden (2010) 242 CLR 520; R v Woolridge (2015) 123 SASR 422; Timbrell v…

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AGLC
R v Edwards [2016] SASCFC 145
Case
[2016] SASCFC 145
Decision Date

CaseChat Overview and Summary

The appellant, the Director of Public Prosecutions, appealed against sentences imposed by the District Court on the respondent. The respondent had been sentenced to a total of four years, 10 months, and 21 days imprisonment, with a non-parole period of three years and six months, for offences including aggravated causing death by dangerous driving, aggravated serious criminal trespass, aggravated assault causing harm, being unlawfully on premises, and damaging a motor vehicle. The appellant argued that these sentences were unduly lenient and should be increased.

The central legal issues before the Full Court of the Supreme Court of South Australia were whether the sentences imposed by the District Court were so manifestly inadequate as to warrant appellate intervention, and if so, what increased sentences should be substituted. This involved considering the appropriate weight to be given to the respondent's guilty pleas, his subsequent development of post-traumatic stress disorder and substance abuse, and the specific circumstances of the dangerous driving offence, including the presence of THC in his blood.

The Court considered the evidence regarding the presence of THC in the respondent's blood, noting that while THC levels do not precisely correlate with impairment in the same way as alcohol, a concentration of 5 mcg/L or above generally indicates recent cannabis use. The Court found it highly unlikely that the respondent's THC level of 7 mcg/L, detected approximately four hours after the collision, could be explained by use eight hours prior, suggesting he was likely under the influence of cannabis at the time of the crash. The Court acknowledged the known effects of cannabis on driving ability, including impaired concentration, coordination, and decision-making, while also noting a potential decrease in risk-taking behaviour compared to alcohol. The Court ultimately found that the sentencing judge had erred in his assessment of the objective seriousness of the dangerous driving offence and the impact of the respondent's drug use.

The Court allowed the appeal, quashed the sentences imposed by the District Court, and resentenced the respondent. The new sentence for aggravated causing death by dangerous driving was imprisonment for four years, with a non-parole period of three years. The sentences for the other offences were also adjusted, resulting in a total head sentence of five years, 10 months, and 21 days imprisonment, with a non-parole period of four years and six months.

Orders

Orders of the court

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Background

Background to the litigation

On 23 May 2016 the respondent was sentenced to imprisonment for terms totalling four years, 10 months and 21 days imprisonment with a non-parole period of three years and six months for the offences of aggravated causing death by dangerous driving, aggravated serious criminal trespass in a place of residence, aggravated assault causing harm, being unlawfully on premises and damaging a motor vehicle. The appellant submits that the sentences were so low that this Court should interfere and increase them.Background On 27 August 2013 at about 5.00pm the respondent was driving home after completing work in Cobdogla. About a kilometre west of the junction of the Sturt Highway and the Old Sturt Highway the respondent’s vehicle began to drift onto the incorrect side of the road and into oncoming traffic. His vehicle collided with a small white utility. The driver of the utility died as a result of injuries suffered in the collision. A subsequent analysis of blood taken from the respondent showed the presence of tetrahydrocannabinol (“THC”) at a relatively high level. He was charged with aggravated causing death by dangerous driving. Whilst the respondent initially pleaded not guilty to that offence it is clear that he felt, at least morally, responsible for the accident he had caused. He developed symptoms of post-traumatic stress disorder. As a consequence of his poor coping skills he was unable to deal with the effects of the underlying post-traumatic stress disorder and turned to abusing alcohol and drugs. This led to a breakdown in his relationship and his partner eventually left him. On 26 November 2013 the respondent committed the offences of disorderly behaviour and resist police. On 4 March 2014 the respondent was sentenced for that offending to 21 days imprisonment. This sentence of imprisonment was suspended on him entering into a bond to be of good behaviour for 12 months. On 11 July 2014 the respondent committed the offences of aggravated serious criminal trespass in a place of residence, aggravated assault causing harm, being unlawfully on premises and damaging a motor vehicle. On 19 August 2014 he was committed for sentence to the District Court having pleaded guilty to those four offences at the earliest opportunity. This offending breached the bond entered into by him on 4 March 2014. On 1 March 2016, shortly before the trial of the charge of aggravated causing death by dangerous driving was to commence, the respondent changed his plea to guilty. On 23 May 2016 the respondent was sentenced for the offending committed on 24 August 2013 and 11 July 2014 as well as for breaching the bond imposed on 4 March 2014. The sentencing Judge concluded his sentencing remarks as follows:[1]For your offence of causing death by dangerous driving on 27 August 2013 I start with a sentence of imprisonment for three years and six months. I reduce that to three years and two months for your guilty plea. I fix a non-parole period of imprisonment for two years and six months.For the four offences you committed on 11 July 2014 I start with a single sentence of imprisonment for two years and nine months. I reduce that to a single sentence of imprisonment for one year and eight months for your pleas of guilty. I fix a non-parole period of imprisonment for 12 months.I revoke the suspended sentence and order that you serve 21 days.All those sentences will be cumulative. They total a head sentence of imprisonment for four years, 10 months and 21 days and a non-parole period of three years and six months. Those sentences will date from 11 July 2014.You will be disqualified from holding or obtaining a driver’s licence for 10 years to operate from the date you are released from prison.[1] Appeal Book p 131.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

He stated that:[7]THC is the major active component in cannabis (or marijuana). Concentrations of THC increase in the blood rapidly in the period during and immediately after the cannabis is smoked, usually reaching a peak within minutes. The concentration of THC then decreases quite rapidly, before gradually tapering off over a period of many hours to a day or more. In comparison, the effects of cannabis peak around 15 minutes to 1 hour after smoking and then decrease over a period of several hours. The subjective and behavioural effects of cannabis lasts for about 4 hours after smoking. In contrast to alcohol, the concentration of THC in blood does not accurately reflect the brain concentration of THC. For this reason, it is difficult to relate THC concentrations to the magnitude of effect on an individual with any degree of precision. Nevertheless, concentrations in blood of 5 mcg/L of THC or above are usually taken to indicate that cannabis was smoked within a few hours prior to the blood sample being collected. In this instance, the threshold concentration was exceeded even though the sample was collected approximately 4 hours after the crash. This could have occurred for two reasons. Firstly, as a regular cannabis smoker, Mr Edwards would have stored THC in fat tissue that is slowly released into blood over time. This can add to the THC present in blood due to recent cannabis use and hence the levels can be higher than might be expected. Secondly, if Mr Edwards was severely injured, it is possible that, due to hormonal changes, some of the THC stored in fat tissue may have been released at a faster rate than normal. Again, this could explain the relatively high THC level given the period between the collision and sample collection. On balance, given the high concentration of THC in the blood sample from Mr Edwards, it is likely that he was under the influence of cannabis at the time of the crash. Mr Edwards claims to have last smoked cannabis at about 11:00am, approximately 8 hours prior to blood sample collection. It is very unlikely that a concentration of 7 mcg/L would still be present such a long period after cannabis use. (Emphasis added)[7] Appeal Book p 325. Dr White further commented on the effect of ingestion of cannabis on a driver’s skills and abilities. He said:[8][8] Appeal Book pp 325-326.From research using laboratory tests, cannabis has a number of effects on skills and abilities related to driving. These include decreased ability to concentrate for prolonged periods of time, decreased eye-hand coordination, decreased ability to monitor and respond appropriately to multiple events or stimuli in the visual field, diminished muscular control and impaired decision making. The effects of cannabis on driving, as assessed through driving simulators and on-road driving tests, include: ·Decreased reaction time·Poor decision making·Impaired obstacle avoidance ·Lesser ability to maintain appropriate position on the road, including greater side-to side movement·Decreased ability to respond to unexpected events, particularly in emergency situationsHowever, in contrast to alcohol, there is no increase in risk taking behaviour under the influence of cannabis and, indeed, there may be some decrease in risk taking. The effect of cannabis is therefore to impair driving performance and decrease ability to respond to unexpected events, but with no enhanced risk taking.