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

NYLAND J: I would dismiss the appeal for the reasons expressed by Vanstone J.
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.
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
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.
The appellant had been drinking liquor during the evening and night. A blood sample taken at around…

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 Frencken

Details

AGLC: R v Frencken [2012] SASCFC 71
Case: [2012] SASCFC 71
Decision Date: 15 June 2012

CaseChat Overview and Summary

The appeal in *R v Frencken* concerned a sentencing decision made by a judge in South Australia. The appellant had pleaded guilty to aggravated causing death by dangerous driving. The sentencing judge imposed a head sentence of three years and four months imprisonment, with a non-parole period of two years and eight months. The appellant argued that this non-parole period was manifestly excessive and that the sentencing judge had erred in finding no special reasons existed to justify a non-parole period shorter than the mandatory minimum of four-fifths of the head sentence, as stipulated by section 32A of the *Criminal Law (Sentencing) Act 1988* (SA).

The legal issues before the appellate court were whether the non-parole period imposed was manifestly excessive and whether the sentencing judge had correctly applied section 32A of the *Criminal Law (Sentencing) Act 1988* (SA) in determining that no special reasons warranted a reduction of the non-parole period below the statutory minimum. Specifically, the court had to consider if the judge's assessment of the factors relevant to "special reasons" under section 32A(3) was legally sound and if the resulting decision not to shorten the non-parole period was within the bounds of what was open to the sentencing judge.

The appellate court, comprising Nyland, Vanstone, and David JJ, dismissed the appeal. The court reasoned that the sentencing judge had adequately considered the relevant factors under section 32A(3) when deciding against imposing a non-parole period shorter than the mandatory minimum. The judge's assessment of the significance of these factors was found to be a matter for their discretion, and no error of approach or factual error was demonstrated. Therefore, the decision not to reduce the non-parole period below the mandatory minimum was considered to be an open and available decision for the sentencing judge.

Orders

Orders of the court

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Background

Background to the litigation

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 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. 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. 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. 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. 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.…

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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

Ratio Decidendi

Legal Principle Established

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