R v Frencken

[2012] SASCFC 71

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v FRENCKEN

[2012] SASCFC 71

Judgment of The Court of Criminal Appeal

(The Honourable Justice Nyland, The Honourable Justice Vanstone and The Honourable Justice David)

15 June 2012

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

CRIMINAL LAW - SENTENCE - INTERPRETATION OF SENTENCING PROVISIONS

Appellant pleaded guilty to aggravated causing death by dangerous driving – sentencing judge imposed a head sentence of three years and four months imprisonment with a non-parole period of two years and eight months – whether the non-parole period was manifestly excessive – whether the judge erred in finding that no special reasons existed under s 32A of the Criminal Law (Sentencing) Act 1988 (SA) to justify the imposition of a non-parole period shorter than the mandatory minimum period of four-fiths of the head sentence.

Held: appeal dismissed – the sentencing judge's decision not to reduce the non-parole period was open to him – the reasons given for declining to reduce the non-parole period below the mandatory period were adequate.

Criminal Law (Sentencing) Act 1988 (SA) s 32(5)(ba), s 32A, referred to.
R v A, D (2011) 109 SASR 197, applied.
R v Narayan [2011] SASCFC 61, discussed.

R v FRENCKEN
[2012] SASCFC 71

Court of Criminal Appeal:  Nyland, Vanstone and David JJ

1. NYLAND J:          I would dismiss the appeal for the reasons expressed by Vanstone J.

2. VANSTONE J:     The appellant pleaded guilty in the District Court to aggravated causing death by dangerous driving.  The circumstance of aggravation was having a blood alcohol level of 0.08 grams or more of alcohol in 100 millilitres of blood.  The actual level was said to be about 0.16 grams per 100 millilitres.  A small amount of diazepam (Valium) was also present.  The maximum penalty for the offence is life imprisonment and not less than ten years disqualification from holding or obtaining a driver’s licence.  The judge imposed a head sentence of three years and four months imprisonment with a non-parole period of two years and eight months.

3. The appellant argues that the non-parole period was manifestly excessive.  He argues that the judge erred in finding that no special reasons existed to justify the imposition of a non-parole period shorter than the mandatory minimum period of four-fifths of the head sentence.

   Background

4. The incident occurred at around 3.35 in the morning of Sunday, 17 October 2010.  The appellant was driving a four-wheel drive vehicle east along North Terrace approaching King William Street.  The vehicle collided with the victim, who was walking north across North Terrace about 60 metres before the intersection.  Initially, the appellant accelerated away from the accident scene and turned left, but he then pulled up near the Festival Centre and returned to the scene.  The victim died in hospital later that morning from the injuries she sustained. 

5. The appellant had been drinking liquor during the evening and night.  A blood sample taken at around 5.45am yielded a blood alcohol level of 0.155 per cent.  An expert estimated the appellant’s blood alcohol content at the time of the collision to have been between 0.12 and 0.16 per cent, and more likely 0.16.  The appellant told police that he had been talking to one of his passengers at the time of the collision.  The victim had also been drinking that evening and had a blood alcohol content of 0.19 per cent.  The judge found that the victim’s intoxication could have contributed to her failure to see the appellant’s vehicle.

6. The appellant pleaded guilty to the charge on 23 January 2012, shortly after his scheduled trial was not reached, and after his offer to plead guilty to a lesser offence was rejected by the prosecution.

7. At the time of the offending the appellant was 25 years old.  He was in a long term relationship, the father of a young child, and had for some years worked for a company where he was well regarded.  The appellant had previously committed an offence of driving with a blood alcohol level of 0.24 per cent, for which his driver’s licence was disqualified for 12 months, taking effect on 27 May 2011.  Detection of this offence had followed the appellant having an accident while driving a ‘dirt bike’ on a road.  The present offence occurred about five months after that incident but before the appellant was dealt with for it.  Apart from that, the appellant’s record showed the commission of two minor offences.

8. In sentencing the judge took a starting point of four and a half years. He reduced that to three years and four months in recognition of the appellant’s remorse and guilty plea. The judge was asked to fix a non-parole period shorter than the mandatory minimum non-parole period prescribed, being four-fifths of the length of the sentence: s 32(5)(ba) Criminal Law (Sentencing) Act 1988 (SA) (the mandatory period). That led to a consideration of s 32A(3). That section relevantly provides as follows:

   32A—Mandatory minimum non-parole periods and proportionality

   (1)If a mandatory minimum non-parole period is prescribed in respect of an offence, the period prescribed represents the non-parole period for an offence at the lower end of the range of objective seriousness for offences to which the mandatory minimum non parole period applies.

   (2)In fixing a non-parole period in respect of an offence for which a mandatory minimum non parole period is prescribed, the court may—

   (a)     if satisfied that a non-parole period that is longer than the prescribed period is warranted because of any objective or subjective factors affecting the relative seriousness of the offence, fix such longer non-parole period as it thinks fit; or

   (b)     if satisfied that special reasons exist for fixing a non-parole period that is shorter than the prescribed period, fix such shorter non-parole period as it thinks fit.

   (3)In deciding whether special reasons exist for the purposes of subsection (2)(b), the court must have regard to the following matters and only those matters:

   (a)     the offence was committed in circumstances in which the victim's conduct or condition substantially mitigated the offender's conduct;

   (b)     if the offender pleaded guilty to the charge of the offence—that fact and the circumstances surrounding the plea;

   (c)     the degree to which the offender has co‑operated in the investigation or prosecution of that or any other offence and the circumstances surrounding, and likely consequences of, any such co‑operation.

   …

9. It was put to the judge that the appellant qualifies for a finding that special reasons existed for fixing a non‑parole period shorter than the mandatory period under both subsection (3)(b) and (3)(c).  It was said that the appellant’s plea of guilty and the circumstances surrounding it qualified under subsection (3)(b) and that his co-operation in submitting to breath and blood tests and pleading guilty amounted to special reasons under subsection (3)(c).  The judge did not agree.  He said:

   While there were understandable reasons why your plea was entered reasonably late, I do not think that the circumstances of the plea are such as to make out special reasons.

   Likewise, your prompt admission that you were the driver of the car and your preparedness to answer police questions were commendable, but I do not think that they amount to special reasons either. Your failure to provide a sufficient breath test is but one of the reasons I do not think that your cooperation can be seen as amounting to special reasons.

   Arguments on appeal

10. Mr Mead SC submitted that the judge erred in failing to find special reasons to reduce the non-parole period.  He pointed to the fact that it was not suggested that the appellant was speeding or driving erratically at the time of the collision.  Therefore, the offence fell at the lower end of the range of objective seriousness for such offences.  He put that from the beginning the appellant had acknowledged that his driving was defective and had offered to plead to a charge of driving without due care, and that although the final plea was not made at the earliest opportunity, it was made prior to the charge being relisted for trial.  He submitted that the appellant had shown genuine remorse.  Mr Mead also argued that special circumstances could be found in the appellant’s co‑operation in the investigation of the offence; by admitting he was the driver and that his lookout had been defective, and in blowing into the alcotest instrument (though not effectively) and in submitting to a blood sample being taken.

11. Counsel took the Court to R v A, D (2011) 109 SASR 197. There, the sentence under consideration was one fixed for an offence of murder committed by a youth. Where one or more of what I might call “qualifying matters” under s 32A(3) were present, the relevant question was said to be this:

    [42]The court has to ask itself whether, bearing in mind that a non-parole period of 20 years is appropriate for an offence at the lower end of the range of objective seriousness, the special reasons present in the case warrant or support a shorter non-parole period for this offence and this offender.

    The plurality (Doyle CJ, Duggan, Anderson and White JJ) went on to discuss the comparable process which might be followed in fixing a non‑parole period in respect of a person sentenced for a serious offence against the person, at [50]‑[54].  At [53] the plurality said this:

    [53]In a case in which the prisoner is sentenced for a serious offence against the person, the court will first fix a head sentence. This will be done in the usual way. The starting point for fixing a non-parole period will be to bear in mind that the mandatory period is four-fifths of that head sentence. If the head sentence were, for example, 10 years, the mandatory period would be eight years. If there are no “special reasons” the court will consider the non-parole period, applying existing principles, but bearing in mind that eight years (four-fifths of the head sentence) is appropriate for an offence at the lower end of the range of objective seriousness. If the period arrived at is greater than eight years, the court will fix the non-parole period accordingly. Even if the period arrived at is less than eight years, the court cannot go below eight years unless special reasons exist. If special reasons exist, the court will consider whether the special reasons warrant or support a shorter non-parole period than the tentatively identified non-parole period and shorter than the mandatory period, in this example eight years. The court must consider the notional non-parole period (for eight years or more, as the case may be), bearing in mind the impact of the special reasons and that eight years is the appropriate non-parole period for an offence of the relevant kind which is at the lower end of the range of objective seriousness. If that consideration of the special reasons does not warrant or support a non-parole period of less than eight years, the non-parole period will be eight years. If it does warrant or support a shorter non-parole period, the court will fix a non-parole period shorter than the mandatory period.

12. Counsel also referred to R v Narayan [2011] SASCFC 61 where the DPP was refused permission to appeal from a decision that a reduction from the mandatory period should be made.

13. Mr Mead focussed on the remarks of the sentencing judge in the present case.  He argued that inadequate reasons were given for finding that the appellant’s plea of guilty and the circumstances surrounding it and his co‑operation in the investigation did not amount to special reasons for reducing the mandatory period.

    Analysis

14. The relevant part of the sentencing judge’s task could be described as to first determine whether there were what I have called qualifying matters under s 32A(3) and then, if there were, to determine whether they were such as to warrant or support a non-parole period shorter than the mandatory period. I choose to divide the task in that way because it seems to me more satisfactory to deal first with the issue of classification of the victim’s or offender’s conduct and then to evaluate the matter in terms of whether it supports or warrants a reduction. The first step involves quite a confined enquiry; the second involves evaluation of the matter in a wider context.

15. Plainly the plea of guilty was a qualifying factor.  However, the judge noted that it was late, referred to the circumstances of it and expressed the view that it was not such as to warrant a reduction.

16. In relation to co-operation, there is first a question of assessing the degree of it.  Here, as the respondent’s counsel pointed out, there was an obligation upon the appellant to identify himself as the driver, to stop after the accident – immediately – and to submit to an alcotest, to comply with the directions of the breath analysis machine operator and to provide a sample of blood.  Even strict compliance with these requirements would not have amounted to a significant level of co-operation.  The appellant’s preparedness to answer police questions was, as the judge said, commendable.  However, in my view, the judge was entitled to conclude that such co-operation as there was did not warrant a reduction.

17. As the plurality said in R v A, D, at [44]:

    [44]… The presence of factors amounting to “special reasons” merely enables the court to consider whether those factors warrant or support a non-parole period shorter than the mandatory period.

18. In addition to considering the qualifying matters themselves, the judge was entitled to take into account, on the question of whether a reduction was warranted, any subjective factors tending against such a reduction.  Because, although a reduction could only be justified having regard to one or more of the qualifying matters, the proof of, for example, relevant prior convictions, or the offence being committed in defiance of conditions of parole or a good behaviour bond, could offset the impact of a qualifying matter.  It is important to note that the notional non-parole period of four-fifths already comprehends the objective features of the crime.  It must be at the point of considering whether a qualifying matter warrants a reduction that other factors personal to the defendant which point the other way are brought to account.  I do not read the reasons of the plurality in R v A, D as saying anything to the contrary. 

19. The judge referred to the conduct of the appellant of crashing a dirt bike on a road while grossly intoxicated five months earlier.  He was entitled to have regard to that in determining whether a reduction was warranted. 

20. I do not agree that the reasons given for declining to reduce the non‑parole period below the mandatory period were inadequate.  The judge was required to make an assessment of the significance of the qualifying matters and he did so.  In my mind no error of approach or factual error is demonstrated.  The question then for this Court is whether the judge’s decision not to reduce the non-parole period was open to him.  I consider that clearly it was.

    Conclusion

21. For these reasons I would dismiss the appeal

22. DAVID J:       For the reasons given by Vanstone J, I would dismiss the appeal.