R v Grgeta - [2004] SASC 407

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v GRGETA
Judgment of The Court of Criminal Appeal
(The Honourable Justice Duggan, The Honourable Justice Bleby and The Honourable Justice Anderson)
7 December 2004
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - CULPABLE OR DANGEROUS DRIVING CAUSING DEATH OR BODILY HARM
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - FACTORS TO BE TAKEN INTO ACCOUNT - PURPOSE OF SENTENCE
Appellant pleaded guilty to causing bodily harm by dangerous driving pursuant to s19A(3) of the Criminal Law Consolidation Act 1935 (SA) - sentenced to imprisonment for twenty-seven months, reduced from three years because of the plea of guilty, with a non-parole period of six months and disqualified from driving or obtaining a driver's licence until further order - a number of aggravating factors - appellant had been tailgating, speeding and 'dragging' with another car before the collision with the victim - appellant had a bad driving record - appellant had consumed cannabis and prescription medication - mitigating factors - appellant had suffered brain damage some years prior to the collision but was found to be competent to stand trial - medical reports indicated his brain injury contributed to his poor driving - appellant contended that sentence should have been suspended and that the sentencing Judge erred in his emphasis on general deterrence - no justification for interfering with the sentencing discretion - appeal dismissed.
Criminal Law Consolidation Act 1935 (SA); Criminal Law (Sentencing) Act 1988 (SA), referred to.
R v Thompson (1975) 11 SASR 217; R v Leach (2003) 85 SASR 139; R v Wiskich (2000) 207 LSJS 431, applied.

R v GRGETA
[2004] SASC 407
Court of Criminal Appeal: Duggan, Bleby and Anderson JJ

DUGGAN J. I would dismiss the appeal for the reasons given by Anderson J.
BLEBY J: I agree with Anderson J that this appeal should be dismissed. There were a number of aggravating features of the offending, including persistently driving on the wrong side of a winding country road at high speed when the danger to oncoming vehicles was obvious, driving in the knowledge that the appellant was affected by drugs and medication, the exhibitionist nature of the driving and the appellant’s already poor driving record.
However, the evidence showed that the appellant’s previous brain injury was a contributing factor to the way he behaved, although not such as to affect his knowledge of the nature and gravity of his conduct, and so the element of general deterrence was not greatly affected: R v Wiskich (2000) 207 LSJS 341; R v Leach (2003) 85 SASR 139. Nevertheless, the sentencing Judge gave due credit to the appellant’s mental condition by imposing what, in other circumstances, would have been a very lenient sentence and generous non-parole period.
General deterrence must still weigh heavily.
I agree that in a case like this the exercise of the discretion to suspend the sentence is difficult but the discretion is wide. There is no justification for interfering with the manner in which the discretion was exercised on this occasion.
ANDERSON J This is an appeal from a sentence imposed by a Judge of the District Court on 17 August 2004. The appellant pleaded guilty in the District Court to causing bodily harm by dangerous driving contrary to s19A(3) of the Criminal Law Consolidation Act 1935 (SA). The maximum sentence for a first offence is imprisonment for ten years and disqualification from holding a driver’s licence for five years or such longer period as the court orders.
There were a number of aggravating features in relation to the appellant’s driving leading up to the unfortunate incident in which a twenty-five year old school teacher received a shearing injury to her brain which has left her with considerable residual disabilities. At the time of the accident, the appellant was thirty-six years old.
The appellant, for a few kilometres prior to the collision, had been tailgating, speeding, “dragging” with another car, and driving on the incorrect side of the road. This was not an isolated incident or a momentary lapse, as was emphasised by the respondent. The appellant’s irresponsible driving led to his vehicle colliding head on with a vehicle driven by the young school teacher which was on the correct side of the road.
The dangerous driving was part of an exhibition by the appellant in which he hoped to impress a young lady. He had consumed cannabis prior to the accident, and he had also taken a high level of prescription medication, such that the combination would have been likely to lead to a lack of alertness and drowsiness. He was reckless to the consequences of his very poor driving.
The appellant has a bad driving record. He has lost demerit points for speeding on nine previous occasions. Three of those were in the year immediately prior to the offence.
Prior to this accident, the appellant himself had suffered from brain damage sustained in a motor cycle accident in 1999. He sustained serious damage to his frontal lobe, and there was initially a question as to whether he was fit to stand trial because of possible mental impairment.
Various medical reports indicate, however, that he was fit to stand trial, albeit that it was generally agreed by the experts that his brain injury was a contributing factor to the way in which he was driving.
The driving leading up to the accident was described by the sentencing Judge as, “a culmination of a protracted period of continual dangerous driving.” The learned sentencing Judge imposed a notional head sentence of three years imprisonment which he then reduced to twenty-seven months imprisonment because of the plea of guilty. His Honour then took the personal circumstances, and particularly the mental problems of the appellant into account in fixing what he described as, ‘a substantially lesser than usual non-parole period”. A non-parole period was fixed at six months. The driving licence was suspended until further order.
The argument on appeal was that, in all the circumstances, the sentence should have been suspended, and in particular, it was argued that the learned sentencing Judge was in error in the emphasis he placed on general deterrence when he said:
“People such as Grgeta must be given a strong message by the law that if they abuse their privilege of driving motor vehicles on roads by indulging in wanton dangerous driving out of bravado or the like, they must expect to suffer severe consequences. The Courts must be careful not to give an impression to persons who can understand the dangerousness and wrongfulness of such conduct that they can hide behind their disabilities to avoid imprisonment.”
The respondent argued that there must be offences where deterrent principles take priority over personal circumstances, and that this was one of them. The respondent relied on a comment by Bray CJ in R v Thompson (1975) 11 SASR 217 (at 222) to that effect.
The respondent also relied on the decisions of R v Leach (2003) 85 SASR 139 at 144 and R v Wiskich (2000) 207 LSJS 431 at 457 and 460 to the effect that where the mental illness does not affect the offender’s knowledge of the nature and gravity of the conduct, the relevance of general deterrence is not greatly affected.
In Wiskich, Martin J said (at 457-458):
“The existence of a mental disorder is always a relevant factor in the sentencing process, but its impact upon that process and the various issues that arise in sentencing will vary considerably according to the circumstances of the individual case. An assessment of the severity of the disorder is required. A sentencing court must determine the impact of the disorder upon both the offender’s thought processes and the capacity of the offender to appreciate the gravity and significance of the criminal conduct…if an offender acts with knowledge of what is being done and with knowledge of the gravity of the criminal conduct, the importance of the element of general deterrence otherwise appropriate in the particular circumstances is not greatly affected. The gravity of the criminal conduct is also an important consideration … In some circumstances, however, the mental disorder may not be serious or causally related to the commission of the crime, and the circumstances of the crime so grave, that very little weight in mitigation can be given to the existence of the mental disorder and full weight must be afforded to the element of general deterrence. In between those extremes, an infinite variety of circumstances will arise in which competing considerations must be balanced.”
This was followed in Leach, and then in turn both decisions were relied on by the learned sentencing Judge.
His Honour said, after considering those two decisions:
“Here the reports of Dr Branson the psychiatrist, and Mr Balfour, the psychologist, show that Grgeta did have a fair understanding of the nature and quality of his actions leading up to the accident and their wrongfulness and dangerousness. He probably acted more impulsively than a normal person because of the effects of his own brain injury, but he was capable of controlling his conduct.”
In my opinion, whilst other views were expressed by other experts in different ways, the learned sentencing Judge was quite entitled to take this view as being representative of the preponderance of medical opinion.
His Honour went on to say:
“I do not consider that the element of general deterrence can be properly satisfied unless Grgeta is required to serve some significant time in prison.”
Counsel for the appellant, Mr White, argued that apart from the general discretion to suspend a sentence, there should also be a suspension considered pursuant to s 38(2c) of the Criminal Law (Sentencing) Act 1988 (SA) (“the Act”).
S38(2c) enables the court to suspend a sentence where the court is of the view that because of the defendant’s ill health, disability or frailty, it would be unduly harsh for the defendant to be imprisoned. His Honour did not consider that there was a case either for suspension generally or pursuant to s 38(2c) of the Act. In light of the learned Judge’s assessment of the appellant’s mental state, s38(2c) was not a sentencing option.
I think that the question of suspension in this case is very much a fine line. I can see reasons why, in the exercise of the sentencing discretion, I may have been persuaded to suspend the sentence. However, that is not the test. The learned sentencing Judge was well within the proper exercise of his discretion in considering all of the matters which he took into account. Indeed, it cannot be said that his Honour failed to take anything into account or placed undue or incorrect emphasis on any other factor. At the end of the day, it is my view that the sentencing discretion did not miscarry.
In conclusion, therefore, I would dismiss the appeal.