R v Edwards - [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 The 21 day suspended sentence was revoked and the respondent received total sentences of 4 years 10 months and 21 days with a non-parole period of 3 years and 6 months.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 Western Australia (No 2) [2013] WASCA 269, discussed.
Bugmy v The Queen (1990) 169 CLR 525; Power v The Queen (1974) 131 CLR 623; Dinsdale v The Queen (2000) 202 CLR 321; R v AWR (2012) 113 SASR 179; R v Chalmers (2012) 115 SASR 150; Power v The Queen (1974) 131 CLR 623; R v AWR (2012) 113 SASR 179; R v Chalmers (2012) 115 SASR 150; R v F, AD [2015] SASCFC 130; R v Harkin (2011) 109 SASR 334; R v Johnston (1985) 38 SASR 582; R v Nemer (2003) 87 SASR 168, considered.

WORDS AND PHRASES CONSIDERED/DEFINED
"Manifestly inadequate"

R v EDWARDS
[2016] SASCFC 145
Court of Criminal Appeal: Blue, Lovell and Hinton JJ
THE COURT:
Overview

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.
It was common ground that the Judge erred in fixing and then accumulating two separate non-parole periods; by law he was not permitted to do so.[2] The appellant conceded, appropriately, in our view, that this error of itself would not have led to an appeal by the Director of Public Prosecutions (“the Director”).
[2] R v Mittiga [2010] SASCFC 67.
The Director contended that the sentences for each of the aggravated causing death by dangerous driving and the aggravated serious criminal trespass in a place of residence (and associated offences) were so disproportionate to the seriousness of the crimes as to require this Court to intervene to maintain adequate standards of punishment and public confidence in the administration of justice.
Principles relating to Crown appeal
It was accepted that permission to appeal should only be granted to the prosecution in “exceptional cases”.[3] It was common ground that a grant of permission is appropriate in order to determine a matter of principle, correct an error of principle, establish or maintain adequate standards of sentence, enable idiosyncratic views of individual judges as to particular crimes or types of crimes to be corrected, or correct a sentence which is so manifestly inadequate that it amounts to an error of principle.[4]
[3] Everett v The Queen (1994) 181 CLR 295, 299.
[4] R v Harkin (2011) 109 SASR 334; R v Nemer (2003) 87 SASR 168.
An error in the sentencing process may be inferred from a result that is manifestly unreasonable or plainly wrong, or by identifying the adoption by the sentencing Judge of an incorrect principle, the giving of weight to some extraneous or irrelevant matter, the failure to give weight to material consideration, or the making of a mistake as to the facts.[5]
[5] Dinsdale v The Queen (2000) 202 CLR 321, 339.
Jurisdiction exists to correct an inadequate sentence if the sentence is likely to undermine public confidence in the ability of the courts to contribute to deterring the commission of crimes. This assists in maintaining confidence in the administration of justice.[6]
[6] Everett v The Queen (1994) 181 CLR 295, 306; R v F, AD [2015] SASCFC 130.
Aggravated causing death by dangerous driving
Sturt Highway at the scene of the collision is an interstate highway running generally east-west. The road, in this vicinity, consisted of a two-way, single carriageway extending east-west from the collision scene. The lanes were separated by a double white painted line. The general topography of the area was flat with sparsely located scrub along the dirt verges on either side of the road. The speed limit on the stretch of road around the point of impact was 100 kilometres per hour for both east and west bound traffic.
Mr Passmore (“the deceased”) was travelling home after making deliveries to Berri and Renmark as part of his fruit and vegetable business. He was travelling west on Sturt Highway at the time of the collision. The respondent had been working at Cobdogla and had intended to drive to Renmark to purchase food for his family. He was travelling east at the time of the collision. It was accepted before the sentencing Judge that the respondent was a regular smoker of cannabis.
Mr Hentschke was a witness to the accident. At about 5.00pm on 27 August 2013 he was driving his vehicle in an easterly direction along Sturt Highway near Berri. After passing through the township of Monash, he noticed a “white older people mover van” with “taxi” written on it driving in front of his vehicle; this was the respondent’s vehicle. He thought the van was about 100 metres in front of his vehicle and both were travelling at about 95 to 105 kilometres an hour. He followed the van for about five kilometres at a constant speed. There was nothing about the driving of the van at that stage that caught his attention.
On the straight stretch of road about a kilometre west of the junction of Sturt Highway and Old Sturt Highway at Berri Mr Hentschke noticed that the van in front of him started to veer slowly to the right. He thought that it appeared that the driver had been distracted or had fallen asleep. The van moved into the oncoming west bound traffic. Mr Hentschke noted that the van in front of him veered into the other lane at a point where the west bound traffic would straighten up after completing a sweeping bend and where there was the beginning of an overtaking lane for west bound traffic. He saw the van collide with a small white utility that had a refrigeration box on the back of the vehicle. He only observed the utility in the west bound lane when the two vehicles collided. Unfortunately Mr Hentschke did not state the distance the van travelled on the incorrect side of the road before the collision. He simply referred to it as veering “slowly to the right”.
Mr Hentschke said that the weather was fine, there was no wind nor was it raining; the road was dry. At the time there was no sun glare, dust or smoke and he noted no obstacles in front of his vehicle or the van in front of him.
Senior Constable First Class Mark Kingsland of the Major Crash Investigation Section attended the scene of the accident. He made observations of various matters at the scene of the accident and took a number of photographs. He determined that the point of impact between the two vehicles was adjacent or just inside the dirt verge of the western lane of the Sturt Highway. There was no evidence that the respondent’s vehicle had attempted to change direction prior to the impact. There was evidence that suggested that the deceased had attempted to avoid the collision by turning his vehicle to the left and onto the dirt verge to avoid the oncoming vehicle.
A blood sample was collected from the respondent. Analysis of the sample showed the presence of the following drugs: r⁹–tetrahydrocannabinol (THC) 7 mcg/L, 11-nor-9-carboxy-r⁹-tetrahydrocannabinol (carboxy THC) 110 mcg/L, morphine approximately 0.02 mg/L and citalopram approximately 0.04 mg/L.
The morphine was most likely administered after the collision as the respondent suffered significant injuries.
Citalopram is an antidepressant drug. The concentration found in the sample of the respondent was at the lower end and within a normal therapeutic level arising from prescribed use. The respondent had been prescribed this antidepressant medication.
The presence of THC was the result of the respondent smoking cannabis. An issue on sentence was the timing of when the respondent had last smoked cannabis prior to driving.
Dr Jason White, a professor of pharmacology and head of the School of Pharmacy and Medical Sciences at the University of South Australia reported on the concentration of THC found in the respondent’s sample.
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 situations
However, 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.
The sentencing Judge made no finding as to how long before driving the respondent had last smoked cannabis. Given the report of Dr White it was most unlikely to have been as the respondent stated. However the more important question was not when cannabis was last ingested but whether the THC in his system affected his driving.
The Judge, when sentencing, stated:[9]
A toxicology report and an “effects statement” indicated that cannabis was present in your blood at a level which was likely to have affected your ability to drive. Those effects would have included a decreased ability to maintain concentration and a decreased ability to control a vehicle and keep it within a marked traffic lane. It was stated that it was also evident that the cannabis was consumed by you at a time much nearer the time of the collision than you initially said.
[9] Appeal Book p 128.
Whilst the Judge used the expression that the cannabis was “likely to have affected” the respondent it is clear from the rest of the sentencing remarks that the Judge considered that it was, in fact, affecting the respondent. Given the description of the respondent’s driving shortly before the collision such a finding, in light of Dr White’s statement, was inevitable.
It has often been acknowledged that sentencing for the offence of causing death by dangerous driving is a difficult matter. Recently in R v Singh[10] and R v Wooldridge[11] the Court has considered the proper approach to sentencing for this type of offence including canvassing the penalties involved in a number of relevant cases. In both cases it was observed that the remarks of King CJ in R v Johnston[12] remained apposite to current sentencing practice. King CJ stated:[13]
It is evident then that the legislature attaches great importance to the consequences which flow from the driving. But the nature of the conduct which is reprobated by all the above sections is the same; it is heedlessness and recklessness in driving, not malice. Few people deliberately cause a serious accident. The typical dangerous driver does not contemplate the possibility of a serious accident or the possibility of causing death or harm to others. It is important therefore that in concentrating our attention on the dreadful consequences of the driving, we do not obscure the chasm which exists between the moral quality of heedless or even reckless conduct which causes death or bodily harm and the moral quality of conduct which deliberately inflicts death or bodily harm. Consequences of conduct are important in the criminal law but they are not the determinant of the moral turpitude involved in the conduct. Comparisons which are sometimes made between the terrible consequences to the victim and the punishment inflicted on the wrongdoer seem to reflect a desire for a reversion to a form of lex talionis rather than an attempt to relate the punishment imposed to the moral quality of the conduct which is punished or to any rational purpose of punishment.
(Footnotes omitted)
[10] (2011) 111 SASR 219.
[11] (2015) 123 SASR 422.
[12] (1985) 38 SASR 582.
[13] R v Johnston (1985) 38 SASR 582, 585.

The essential point being made by King CJ is that for offences of causing death by dangerous driving, the consequence of the offending does not ordinarily reflect the moral blameworthiness of the offender. It is not that the consequence is irrelevant to the sentencing function: consequences of offending are always relevant. In R v Hietanen[14] King CJ also said:[15]
Consequences of conduct are always a factor in assessing the gravity of a crime. They are especially serious in this type of offence because they are of the essence of the offence. If bodily harm had not resulted, the appellant would have been punished in a court of summary jurisdiction by fine, or perhaps a short term of imprisonment, and license disqualification, for driving under the influence. It is the consequences which convert the same conduct from a summary offence to an indictable crime and are therefore the principle measure of the seriousness of that crime. Dangerous driving which causes serious injury to seven persons is vastly more serious for this purpose than dangerous driving which causes serious injury to two persons…
[14] (1989) 51 SASR 510.
[15] R v Hietanen (1989) 51 SASR 510, 517. See also R v Van Der Heyden (1990) 55 SASR 316, 318 (King CJ, Matheson and Bollen JJ agreeing).
It is also important to note that King CJ in R v Johnston[16] was not saying that the sentencing discretion is confined to imposing a sentence proportionate to the moral blameworthiness of the accused. That would be to bind the discretion by the subjective. As Kourakis CJ noted in R v Chalmers:[17]
…the consequences of an offence must always be taken into account whether or not they were intended and whether or not they are more serious than they needed to be to constitute the offence. … it remains the case that all other things being equal, the sentence imposed on an offender who, for example, intends only to cause a black eye, and causes no more harm than that, will be less than the sentence imposed on an offender with the same intention who by misfortune causes serious brain injury. Sentences continue to reflect considerations which go beyond subjective culpability.
[16] (1985) 28 SASR 582.
[17] R v Chalmers (2012) 115 SASR 150, 154 [15].
Thus whilst it is important in sentencing for the offence of causing death by dangerous driving to keep firmly in mind the moral blameworthiness of the offender and not to be overwhelmed by the all too often tragic consequences of such offending lest the sentence imposed take on the hue of the lex talionis, the consequences remain a highly relevant factor to be taken into account with all other relevant factors. At the forefront of the sentencer’s consideration must, nonetheless, be that the offence is one of recklessness or heedlessness.
Having reviewed a number of cases the Court in R v Wooldridge[18] stated:
In addition to our consideration of the conspectus of cases reviewed by the Court in Singh and of the similar exercise undertaken by the Court in Payne (as at 2004) we have reviewed a number of appellate decisions in this area.[19] The variables as to the facts and sentencing regimes applicable across the years render such a comparison exercise particularly problematic for this type of offence. Nevertheless, one can, in this way, acquire a sense of the range of penalties imposed, bearing these variables in mind. However, the shortcomings in the comparison exercise do serve to emphasise the importance of applying sentencing principles to the particular facts at hand.
(Emphasis added)
[18] (2015) 123 SASR 422, 436-437 [49].
[19] Including, and in addition to the cases referred to this point, R v Watkins (2013) 118 SASR 342; R v Hietanen (1989) 51 SASR 510; R v Moore (1989) 153 LSJS 201; R v Esposito (1985) 38 SASR 574; R v Van Der Heyden (1990) 55 SASR 316; R v Hicks (1987) 45 SASR 270; Timbrell v Western Australia (No 2) [2013] WASCA 269; R v Ceruto (2014) 66 MVR 94; R v Janceski (2005) 44 MVR 328.
The offence is charged in its aggravated form due to the undisputed presence of THC in the blood of the respondent demonstrating his use of cannabis. The exact cause of the accident may never be known but it is relevant to sentencing that the cannabis use and its effect on the respondent was an operative factor in the manner of driving by the respondent. The maximum penalty for an offence that is aggravated is life imprisonment. The degree of moral turpitude of the respondent’s driving is reflected in the fact that he drove whilst affected by cannabis.
The impairment that ingestion of cannabis has on a driver’s ability to drive safely as described by Professor White is, like the effects of alcohol, now generally known. That a person chooses to drive in such circumstances is a factor highly relevant to assessing his or her moral blameworthiness. At a minimum, particularly bearing in mind the repeated public campaigns admonishing those who take drugs and drive, it bespeaks heedlessness.
The respondent has a lengthy offender history. In relation to offences involving the use of motor vehicles it is extensive but almost entirely related to matters such as driving his vehicle unregistered and uninsured and also failing to hold an appropriate licence. There is no prior offending that indicates, when driving, that he disobeys the rules of the road as opposed to administrative requirements. Despite his extensive record, his current incarceration is the first time he has served a long term of imprisonment.
The sentencing Judge accepted that the respondent was remorseful despite the plea of guilty being relatively late.
Other offending
On 26 November 2013 the respondent was charged with offences of disorderly behaviour and resist police. On 4 March 2014 the respondent was convicted of those two offences in the Berri Magistrates Court. He was sentenced to imprisonment for 21 days, that sentence being suspended on the condition that he entered into a bond to be of good behaviour and to comply with the conditions of that bond. He signed the bond acknowledging the conditions on 4 March 2014.
On 11 July 2014, three days after he was committed for trial on the aggravated causing death by dangerous driving charge the respondent committed four further offences. The offences were aggravated serious criminal trespass in a place of residence, aggravated assault causing harm, being unlawfully on premises and damaging a motor vehicle.
The sentencing Judge summarised the offending as follows:[20]
At just before midnight on Friday, 11 July 2014 a man was at his house at Barmera watching TV with his wife. He heard somebody knocking on the front door. The knocking was getting louder. He opened the front door and you barged in. You fell backwards and broke the glass in the door. You tried to get into the bedroom but his wife was on the other side of the door pushing it. You punched the man twice to his head. His wife called out ‘Call the cops’. You then said ‘Fuck the cops. I don’t care about that, money, money. I want money’. The man then asked you whether he owed you any money. You said ‘I want $2500. I have a wife and kids to look after.’ You then said to him ‘I will kill you, I will kill you’. You then picked up some of the glass pieces and pushed them into the top of his head about 10 times. He started bleeding from his head. You left when you heard a car come. Your victim was 79 years old. His wife was 76 years old.
The car you heard was your victim’s son as he had seen on his phone that his mother was trying to contact him. He left work and drove to his parents’ place at Barmera. As he was pulling up he saw you and saw you run off. He chased after you and in the dark he grabbed you and you both overbalanced among plants and both ended up on the ground. You did not struggle much.
The son went back to the house and when he saw blood on his father’s face he went out to try and find you. He saw that a neighbour was also looking for you. He found you lying flat up against a fence. He rang police. He then jumped a fence and was in the same area as you. When you saw his torch you got onto your knees and put your hands up. You did not then say anything.
As he was waiting for police you stood up. You said ‘I’m here to clean up. I’m here to clean up. If I don’t do it, somebody will. I know you Greek boys, I’ve been sent to clean up’. When you were asked who you were sent by you replied ‘You want to pay me 10 grand or do you want to make some easy money?’ You later said ‘Do you have a bottle? Why don’t we have a bottle of scotch, I need it. I’ve had too much drugs.’ You then said ‘My wife said if I get caught again I go to gaol.’ You said that you had had too much drugs that night. You said ‘I don’t give a fuck. I don’t give a fuck’. You kept mumbling and repeating stuff. Police arrived and arrested you.
[20] Appeal Book pp 129-130.
As can be seen the offending described was particularly serious. Not only did the respondent burst into the house of the victims, he threatened and then assaulted the 79 year old male owner. It can be seen from the Judge’s remarks that the respondent was clearly affected by drugs. However it was a cowardly assault of a vulnerable person. At some stage of this incident the respondent damaged a car parked in the street. The damage cost $4,214.00 to repair.
This offending breached the bond the respondent had entered into on 4 March 2014.
Respondent’s background
The respondent is currently 38 years old. His parents separated when he was a young man; the respondent had a reasonable relationship with his step-father. He had little or nothing to do with his biological father. He left school at 14 and at 18 joined the army. Unfortunately due to a shoulder problem, he was unable to complete his training.
After being discharged as medically unfit from the army, he returned to the Riverland and surrounding areas and worked as a fruit picker. He began using marijuana and later consumed amphetamines and heroin. Between the ages of 22 and 25 he lived in Queensland. The antecedent report indicates he committed a number of offences largely due to his drug problem.
When he was about 25 the respondent commenced a relationship with Ms Houghton and he has three children aged three, six and eight. There appears to have been a period of stability around this time although consumption of excessive amounts of marijuana continued to be a problem. At the time of the driving offence the respondent was still in a relationship with Ms Houghton. However as a result of his reaction to that offending she left the relationship and moved to Queensland with the children. It was after that time that the respondent committed the later offences.
The sentencing Judge had before him pre-sentence reports and a report of psychiatrist Dr Begg. Dr Begg considered the respondent was a man poorly equipped to deal with emotional events. He found it not at all surprising that the respondent could not manage the post-traumatic symptoms that arose after the motor vehicle collision. Consistent with the development of a post-traumatic stress disorder the respondent began to use excessive amounts of alcohol. He also made some impulsive decisions, such as quitting his employment and this eventually meant Ms Houghton left the relationship. Once she left the respondent had no significant support and began to use LSD. His behaviour during the course of the aggravated serious criminal trespass and other offending was consistent with the ingestion of LSD. However Dr Begg was of the opinion that the behaviour, which involved anger, aggression and violence, was still purposeful and his attempt to evade apprehension was consistent with the respondent understanding the wrongfulness of his actions.
Dr Begg considered that at the time of the offending it was likely that the respondent was suffering from a post-traumatic stress disorder, alcohol abuse and LSD intoxication. There was also the long term marijuana dependency which was a problem.
In his sentencing remarks the Judge stated:[21]
Your mother wrote that after you found out that your partner had relocated to Queensland to be with another man you took drugs and you were drinking. She later found out that you were in custody when police came to the home to get your medications. Your mother wrote that she knows you were very remorseful about the collision that led to the other driver passing away and further, for your more recent offences.
I received other evidence that you have been a good friend to people you know and have been a good worker. You have also used your time in custody well. This is reflected in pre-sentence reports I received during the sentencing process. The latter one indicated that you consider that your offending against the elderly [residents] of the house you invaded was “repulsive” and you were completely ashamed of your actions, especially because the victims were elderly. You also said that you were “happy that (you were remanded in prison as (you have) had time to reflect on (your) antisocial and offending behaviour with a “clearer mind” whilst (you have) been able to abstain from illicit drugs and alcohol”. You have just turned 38 years of age.
[21] Appeal Book p 131.
Sentences
In our view the sentences imposed by the Judge for the offending on 27 August 2013 and the offending on 11 July 2014 were both manifestly inadequate. Our reasons for so finding are set out below.
For the offence of aggravated causing death by dangerous driving on 27 August 2013 the Judge started with a sentence of imprisonment for three years and six months which was then reduced by 10 per cent on account of the guilty plea, leaving a sentence of three years and two months for this offence.
When sentencing, the Judge had to consider the aggravated nature of the offending and the maximum penalty, namely life imprisonment. The decision to drive whilst affected by cannabis increases the moral turpitude of the offending. In our view the starting point adopted by the Judge was, given the presence of cannabis and the effect it had on his driving, so low that the sentence can be described as manifestly inadequate such that, in order to maintain adequate standards of sentence, this Court should interfere and resentence.
We would start with a head sentence of four years and six months imprisonment which is to be reduced by 10 per cent to take into account the plea of guilty. That leaves a sentence of imprisonment of four years and one month. We note that the eventual non-parole period to be set in relation to all of the offending cannot be less than 80 per cent of this sentence.
Given the operation of section 32A it is appropriate that the mandatory minimum non-parole period be identified at this stage of the sentencing process in relation to this offence, namely three years and four months.
Other offending
The offending of 11 July 2014 breached a suspended sentence of 21 days imprisonment. The bond was entered into by the respondent on 4 March 2014.
The Judge did not err in his approach to this aspect of the sentence. However, it is appropriate in the circumstances for us to set his order aside and resentence the respondent to the same term as part of an overall sentencing package specifying the order of accumulation.
The breach was admitted. We would revoke the bond and order that the respondent serve the 21 days imprisonment. That 21 days is to be served cumulatively on the expiration of the sentence just imposed in relation to the charge of aggravated causing death by dangerous driving on 27 August 2013.
For the offences committed on 11 July 2014 the sentencing Judge noted the maximum penalties. For aggravated serious criminal trespass in a place of residence the maximum penalty is life imprisonment. The maximum penalties for the other offences ranged from 10 years imprisonment to six months imprisonment.
The Judge, appropriately in our view, utilised section 18A of the Sentencing Act 1988 (SA) (“the Act”) in relation to the offending and imposed one sentence. He started with a single sentence of two years and nine months and then reduced that sentence by 40 per cent to allow for the early plea.
The maximum penalty for the aggravated serious criminal trespass was life imprisonment. The victims were aged 79 and 76 years. The aggravated assault was nasty and cowardly and the elderly male victim was injured. The damage to the vehicle was random, pointless and not insubstantial. The respondent has prior convictions for similar offending.
In our view the starting point of the Judge, particularly given the observations in R v Delphin,[22] was so low that the sentence can be described as manifestly inadequate such that, in order to maintain adequate standards of sentence, this Court should interfere and resentence.
[22] (2001) 79 SASR 429.
Like the Judge we would use section 18A of the Act and impose one sentence. Had it not been for the early plea, we would have imposed a sentence of four years imprisonment. To allow for the plea we reduce that sentence by 40 per cent. That leaves a sentence of two years and five months imprisonment. That sentence is to be served cumulatively at the expiration of the earlier two sentences imposed. The total of the sentences imposed is therefore six years, six months and 21 days.
Fixing the non-parole period
In Power v The Queen,[23] Barwick CJ, Menzies, Stephen and Mason JJ characterised the non-parole period as the “minimum period of imprisonment to be served because the sentencing judge considers that the crime committed calls for such detention”.[24] The purpose of the non-parole period was described as follows:[25]
To read the legislation in a way we have suggested fulfils the legislative intention to be gathered from the terms of the Act, i.e. to provide for mitigation of the punishment of the prisoner in favour of his rehabilitation through conditional freedom, when appropriate, once the prisoner has served the minimum time that a judge determines justice requires that he must serve having regard to all the circumstances of his offence.
[23] (1974) 131 CLR 623.
[24] Power v The Queen (1974) 131 CLR 623, 628 (Barwick CJ, Menzies, Stephen and Mason JJ).
[25] Power v The Queen (1974) 131 CLR 623, 629 (Barwick CJ, Menzies, Stephen and Mason JJ).
Whilst these observations were made in relation to the Parole of Prisoners Ordinance 1971 (ACT), they apply no less to non-parole periods imposed under the Criminal Law (Sentencing) Act 1988 (SA).
In Bugmy v The Queen,[26] Mason CJ and McHugh J said:[27]
…although the fixing of a minimum term confers a benefit on the prisoner, it serves the interests of the community rather than those of the prisoner; Attorney-General v Morgan and Morgan. In that case Jenkinson J., with whom Kaye J. agreed, pointed out that considerations relevant to the interests of the community which the imprisonment of offenders is designed to serve, as well as circumstances which mitigate punishment, will be taken into account in determining the head sentence and, again, in fixing the minimum term. At that stage the various interests of the community “will be balanced against the advantages to the community which release on parole is thought likely in the particular circumstances to confer, and against whatever degree of mitigation mercy to the offender may claim without injustice.”
Once this is accepted, it follows that the considerations which the sentencing judge must take into account when fixing a minimum term will be the same as those applicable to the setting of the head sentence. Obviously, the weight to be attached to these factors and the way in which they are relevant will differ due to the different purposes behind each function.
(Footnotes omitted)
[26] (1990) 169 CLR 525.
[27] Bugmy v The Queen (1990) 169 CLR 525, 531.
Mason CJ and McHugh J then proceeded to identify an offender’s prospects of rehabilitation as being relevant to the determination of the non-parole period by way of mitigation and because of the benefit accruing to the community from the offender’s reformation. Their Honours noted that protection of the community will be relevant as will the nature of the offending. Their Honours added that the nature of the offence does not assume the same importance as it does in the setting of the head sentence, because the head sentence is proportionate to the circumstances of the offending and offender, whereas the non-parole period is a proportion of the head sentence. Importantly their Honours stated that, “the perceived prospects of rehabilitation will make a significant difference” in the portion of the head sentence set as the non-parole period. Mason CJ and McHugh J explained:[28]
In fixing a minimum term, a sentencing judge is bound to give close attention to the danger which the offender presents to the community. Naturally, as the length of the minimum term under consideration increases, so does the difficulty of making satisfactory predictions about the future progress of the offender and the danger he or she would present to the community. But that difficulty does not relieve the judge of his or her responsibility to take account of the need to protect the community. Necessarily the judge will be influenced by an assessment of the material before the court as to the prisoner’s prospects of rehabilitation. If the judge’s assessments of those prospects is that they are minimal or bleak, a minimum term should be fixed in the light of that assessment, along with other factors relevant to the fixing of the minimum term.
[28] Bugmy v The Queen (1990) 169 CLR 525, 532.

Dawson, Toohey and Gaudron JJ did not disagree on any point of principle. Their Honours similarly considered the risk of reoffending and the offender’s rehabilitation whilst in custody relevant to setting a non-parole period.[29] Dawson, Toohey and Gaudron JJ observed:[30]
…while the desire on the part of His Honour to protect the community is material to the fixing of a minimum term as well as a head sentence, its significance must be the less the longer the minimum term, simply because relevant forecasts cannot be made at such a distance.
[29] Bugmy v The Queen (1990) 169 CLR 525, 537.
[30] Bugmy v The Queen (1990) 169 CLR 525, 537.
The High Court returned to the topic in The Queen v Shrestha.[31] In that case, Deane, Dawson and Toohey JJ observed:[32]
The fact that considerations of mitigation and rehabilitation will ordinarily found a decision that a prisoner be released on parole does not mean that they are the only considerations which are relevant to the question (for the sentencing judge) whether a convicted person should be eligible for release on parole at some future time or to the subsequent question (for the parole authority) whether the prisoner should be actually released. All of the considerations which are relevant to the sentencing process, including antecedents, criminality, punishment and deterrence, are relevant both at the stage when a sentencing judge is considering whether it is appropriate or inappropriate that the convicted person be eligible for parole at a future time and at the subsequent stage when the parole authority is considering whether the prisoner should actually be released on parole at or after that time. Thus, in Power v. The Queen, Barwick C.J., Menzies, Stephen and Mason JJ. drew attention to the fact that the legislative intent to be gathered from the terms of the parole legislation applicable in that case was to provide for possible mitigation of the punishment of the prisoner only when the stage is reached where "the prisoner has served the minimum time that a judge determines justice requires that he must serve having regard to all the circumstances of his offence". This approach has been consistently accepted in subsequent cases in this Court. Except where it is inappropriate that a convicted person should ever be considered for release on parole, the sentencing judge must formulate an overall sentence, including a non-parole period, at the end of which the parole authority must determine, according to the circumstances which then exist, whether the offender should be released on parole.
(Footnotes omitted)
[31] (1991) 173 CLR 48.
[32] The Queen v Shrestha (1991) 173 CLR 48, 68-69. See also The Queen v Shrestha (1991) 173 CLR 48, 63 (Brennan and McHugh JJ).
Significantly, a non-parole period can never be shorter than “the lower limit of what might be reasonably regarded as a condign punishment”.[33]
[33] The Queen v Shrestha (1991) 173 CLR 48, 63 (Brennan and McHugh JJ).
More recently six justices of the High Court reaffirmed the application of the principles identified in Power v The Queen[34] and Bugmy v The Queen[35] to the determination of non-parole periods.[36]
[34] (1974) 131 CLR 623.
[35] (1990) 169 CLR 525.
[36] Hili v The Queen (2010) 242 CLR 520, 533 [40]-[44] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).
Established rehabilitation may provide a reasonable basis for a relatively low non-parole period whereas “predictive” rehabilitation can be a problematic task.[37]
[37] R v AWR (2012) 113 SASR 179 per Peek J.
The respondent’s background is set out earlier in these reasons.
The respondent is contrite about his offending. He appears to have insight into his offending and the consequences for the victims. The pre-sentence report indicates that he has used his time in prison wisely having completed a number of courses. He works in the metal shop and has been described as diligent, polite and hard working. The respondent has been receiving treatment for his post-traumatic stress disorder from the prison psychiatrist which is assisting his mood. It can be seen that he has already made progress in his rehabilitation.
Prior to the offending on 27 August 2013 the respondent was in a stable relationship and in full-time employment. He was a good employee. There was no dispute before the Judge that the accident was responsible for the post-traumatic stress disorder he suffers. The breakdown in his relationship and the increase in drug use can be attributed to his psychiatric problems.
The respondent has expressed a desire to seek treatment for his drug problems. He currently has some contact with his children.
As mentioned for the offending of 27 August 2013 the mandatory minimum non-parole period is three years and four months. That must provide the “floor” for the fixing of the non-parole period for the offending generally. The task of fixing a non-parole period where a mandatory minimum non-parole period forms part of the overall non-parole period is not easy. There is however no reason to suppose that the general principles should not apply subject to giving weight to the fact that Parliament has seen fit, for one of the offences, to fix a mandatory minimum non-parole period.
Taking those matters into account we would fix a non-parole period of four years.
An alternative approach to sentencing would be to impose a sentence and non-parole period for the offence of aggravated causing death by dangerous driving before turning to consider the other offending. Having imposed the further sentence, a court would, pursuant to section 32 of the Act, review and, if appropriate, extend the existing non-parole period. Whichever method is used the result should be the same.
Orders
1.Permission to appeal is granted.
2.The orders of the sentencing Judge are set aside.
3.For the offence of aggravated causing death by dangerous driving, the respondent is resentenced to imprisonment for four years and one month. That sentence is to run from 11 July 2014.
4.The suspension of the sentence of 21 days imprisonment for the offences of disorderly behaviour and resist police is revoked. The respondent shall serve the sentence of 21 days imprisonment. This sentence is to be served cumulatively on the expiration of the sentence imposed in order 3.
5.For 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 section 18A of the Act is utilised to impose one sentence. The respondent is resentenced to imprisonment for two years and five months. This sentence is to be served cumulatively at the expiration of the sentence imposed in order 4.
6.A non-parole period of four years is fixed. The non-parole period is to run from 11 July 2014.
7.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.