R v Harkin

[2010] SASCFC 39

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal: Criminal)

R v HARKIN

[2010] SASCFC 39

Judgment of The Court of Criminal Appeal

(The Honourable Justice Gray, The Honourable Justice Anderson and The Honourable Justice Kelly)

14 October 2010

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - OTHER MATTERS

CRIMINAL LAW - SENTENCE - INTERPRETATION OF SENTENCING PROVISIONS

CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - SENTENCE - CULPABLE OR DANGEROUS DRIVING CAUSING DEATH  - SOUTH AUSTRALIA

Appeal against sentence - appeal against non-parole period imposed - appellant pleaded guilty to two counts of causing death by dangerous driving - appellant lost control of car and collided with stobie pole killing two passengers - in relation to the same incident the appellant pleaded guilty to six further summary offences - where appellant was driving under the influence of alcohol - where appellant speeding - where appellant driving an unroadworthy vehicle at night without lights - where appellant had alternative means of transport - where appellant had previous conviction for driving with excess blood alcohol - where appellant generally of good character - where appellant showed remorse and contrition and cooperated with authorities - appellant sentenced to four years imprisonment with three years and four months non-parole - whether sentencing Judge misapplied s 32A of the Criminal Law (Sentencing) Act 1988 (SA) in giving too much weight to the statutory mandatory minimum non-parole period - whether non-parole period manifestly excessive.

Held: Appeal dismissed.

(Gray J): Appeal does not call for consideration of the construction of s 32A of the Criminal Law (Sentencing) Act 1988 (SA) - non-parole period was well within the sentencing Judge's discretion.

(Anderson and Kelly JJ): Having determined that the offence was not at the lower end of the range of objective seriousness, all that was left for the trial judge was to consider whether the circumstances warranted the imposition of a non-parole period longer than the statutory minimum prescribed - the sentencing judge did not err in this approach.

Criminal Law (Sentencing) Act 1988 (SA) s 18A, s 32(1)(a), s 32(5)(ba), s 32A ; Criminal Law Consolidation Act 1935 (SA) s 19A(1), referred to.
R v Ironside (2009) 104 SASR 54; R v Barnett [2009] SASC 332, discussed.

WORDS AND PHRASES CONSIDERED/DEFINED

"lower end of objective seriousness"

R v HARKIN
[2010] SASCFC 39

Court of Criminal Appeal:       Gray, Anderson and Kelly JJ

GRAY J.

1. This is an appeal against sentence.

2. The defendant and appellant, Benjamin Jeremiah Harkin was charged with two counts of aggravated causing death by dangerous driving.[1]  With respect to each count, the defendant faced a maximum penalty of life imprisonment and disqualification from holding or obtaining a driver’s licence for a minimum of 10 years.  He was also charged with six summary offences – driving an unregistered vehicle, driving an uninsured vehicle, failure to display “L” plates, driving as a learner driver without a licenced driver, driving without headlights and driving a vehicle without number plates.  These latter offences attracted in each case a maximum penalty of a fine. 

   [1] Contrary to section 19A(1) of the Criminal Law Consolidation Act 1935 (SA).

3. A District Court Judge convicted the defendant on his pleas of guilty to the two counts of causing death by dangerous driving. Pursuant to section 18A of the Criminal Law (Sentencing) Act 1988 (SA), the Judge imposed the one penalty in respect of both offences and sentenced the defendant to a term of imprisonment of four years. A non-parole period of three years and four months was fixed. When arriving at the head sentence of four years the Judge made a reduction of two years as a result of the defendant’s pleas of guilty, his remorse and cooperation with the police.

4. On 30 May 2009, in the early hours of the morning, the defendant was involved in a serious driving incident which resulted in him being charged with the two counts of aggravated causing death by dangerous driving.  At the time of the incident the defendant was aged in his early twenties.  He was driving an unregistered and unroadworthy motor vehicle.  He had been drinking at a hotel with friends earlier in the evening and at the time of the collision had a blood alcohol level of 0.147.  He was driving at an excessive speed.  The defendant lost control of the vehicle, which left the roadway and collided with a tree.  Two of the defendant’s friends, backseat passengers in the vehicle, were not wearing seatbelts.  They both died as a result of injuries sustained. 

5. The stupidity and recklessness of the defendant’s conduct is difficult to comprehend.  Apparently the reason for the escapade was that there had been some form of altercation earlier in the evening with other persons at the hotel.  As a result the defendant and his friends decided to leave the scene of the altercation.  They made their way to nearby premises where the defendant’s vehicle was stored.  The defendant had made contact with his partner who had arrived to transport the defendant and his friends, however, they elected instead to leave in the defendant’s vehicle.  That vehicle was in the process of being rebuilt.  Amongst other things, it had no headlights and poor tyres.  It was both unregistered and uninsured.

6. Immediately following the incident the defendant sought emergency assistance and thereafter was fully accepting of his responsibility for what had occurred.  There is no doubt that he was immediately contrite and remorseful for his conduct and the consequences that had followed.  His contrition and remorse have continued until the present time.

7. The complaint on appeal was that the non-parole period was manifestly excessive. It was argued that the Judge in fixing a non-parole period had misapplied section 32A of the Sentencing Act. Section 32(1)(a) of the Sentencing Act imposes a duty on a sentencing Judge to fix a non-parole period. Section 32(5)(ba) provides for the imposition of mandatory minimum non-parole periods following convictions for specified offences, and section 32A provides for the circumstances in which the sentencing court may reduce or increase the prescribed minimum. Section 32A has been considered by this Court in Ironside[2] and Barnett,[3] and has not been without its difficulties.  I return to this issue later in these reasons.  Section 32A is in the following terms:

   [2]    R v Ironside (2009) 104 SASR 54.

   [3]    R v Barnett [2009] SASC 332.

   (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.

   (4)This section applies whether a mandatory minimum non parole period is prescribed under this Act or some other Act.

8. The personal circumstances of the defendant were unexceptional.  He came from a loving, caring family.  He undertook secondary education.  He then embarked on an apprenticeship as a motor mechanic.  He was in a steady relationship.  He was generally of good character.  The defendant was and remains grief-stricken, remorseful and contrite.  He had developed a psychological state of depression as a consequence of the incident. 

9. In 2006 the defendant had been convicted of a number of traffic related offences, including driving with excess blood alcohol.  As a result he was subject to penalties, and in particular, a six-month driving disqualification.

10. I should say immediately that in my view the overall sentence imposed by the Judge was merciful.  There are a number of aggravating features to the defendant’s conduct.  Not only did the incident give rise to the two deaths, but it arose from circumstances where the defendant was driving an unroadworthy motor vehicle without lights at night time at an excessive speed when affected by alcohol.  The driving also occurred in circumstances where there was a readily available safe alternative; that is, accepting the offer of the defendant’s partner to drive the defendant and his friends in her vehicle.  The Judge was entitled to take the view that the defendant’s conduct called for the fixing of the lengthy non-parole period.  In the circumstances, quite apart from the operation of section 32A, the non-parole period fixed by the Judge was well within his discretion.

11. I do not consider that this appeal calls for a consideration of the difficult questions of construction that arise from the terms of section 32A.  The offending was serious and the sentence merciful.  I do not agree that any clear ratio as to the meaning and effect of section 32A can be drawn from either of the decisions of this Court in Ironside[4] or Barnett.[5]  A number of the difficulties and illogicalities of the provision are referred to in those judgments.  The various approaches taken and the reasons provided in those decisions further demonstrate the exigent nature of section 32A.  Other difficulties will arise for consideration in the appropriate case. 

    [4]    R v Ironside (2009) 104 SASR 54.

    [5]    R v Barnett [2009] SASC 332.

12. In my view, having regard to all the circumstances, including the defendant’s offending and his personal circumstances, I consider the defendant to be fortunate in being sentenced to the term of imprisonment and non-parole period that have in fact been imposed.

    Conclusion

13. I would dismiss the appeal.

    ANDERSON and KELLY JJ:

    Introduction

14. The appellant, Benjamin Jeremiah Harkin pleaded guilty to two counts of aggravated causing death by dangerous driving contrary to s 19A(1) of the Criminal Law Consolidation Act 1935 (SA). On 24 May 2010 a District Court Judge sentenced him to imprisonment for four years and fixed a non‑parole period of three years and four months. The sentencing Judge declined to suspend the sentence. The offence of aggravated causing death by dangerous driving attracts a maximum penalty of life imprisonment and disqualification from obtaining or holding a drivers licence for a minimum of 10 years.

15. The appellant appeals that sentence. A Judge of this Court granted permission to appeal on two grounds, that the non‑parole period is manifestly excessive and that the sentencing Judge erred in the application of s 32A of the Criminal Law (Sentencing) Act 1988 (SA) (“the Act”). That section is concerned with mandatory minimum non‑parole periods and proportionality.

16. It was submitted that the sentencing Judge erred in determining that before he could determine whether he should impose a non‑parole period lower than the prescribed minimum, it was necessary to characterise the appellant’s offending as at the lower end of seriousness for an offence of this nature. It was further submitted that in all of the circumstances a lower than prescribed non‑parole period was warranted and the failure of the Judge to exercise the discretion in s 32A(2)(b) of the Act has resulted in the imposition of a non‑parole period which is manifestly excessive.

    Background

17. In the early hours of Saturday 30 May 2009 the appellant was driving a Falcon sedan on a road at Mount Barker when he lost control of the car and it collided with a stobie pole.  As a result of the collision two out of three passengers were killed.  The two men who died in the collision had earlier been drinking with the appellant at a hotel in Mount Barker.

18. During the night after some sort of incident had occurred with another group of people outside the hotel, the appellant telephoned his girlfriend to pick him up and drive him home.  While waiting for his girlfriend to arrive the appellant walked to his workplace in Mount Barker and prepared to drive the vehicle which was ultimately involved in the collision.  That vehicle was unroadworthy and unregistered.  The appellant took the vehicle out of the workshop.  Although the appellant’s girlfriend arrived before he commenced to drive the vehicle, the appellant nevertheless chose to drive off in the vehicle with his friends.  He had a blood alcohol content of approximately 0.147 per cent and was travelling at approximately 80 kilometres per hour in a 50 kilometre per hour speed zone at the time of the crash. 

19. The appellant at the time of the offending was 23 years of age and had been working as a mechanic with the same employer for a period of eight years since leaving school.  On 26 April 2006 the appellant had been previously convicted of a number of traffic related offences including driving with excess blood alcohol in respect of which he received a sentence which included a disqualification from holding or obtaining a drivers licence for six months.  At the time of this offending he held a learners permit.

20. In addition to the two counts of causing death by dangerous driving, the appellant also pleaded guilty to six summary offences namely driving an unregistered vehicle, driving an uninsured vehicle, failing to display ‘L’ plates, driving as a learner driver without a licensed driver, driving without headlights, and driving a vehicle without number plates.  The maximum penalty for each of those offences is a fine. 

21. The sentencing Judge indicated that but for the early guilty pleas, and the appellant’s remorse and cooperation with the police, he would have fixed a head sentence of six years imprisonment.  In light of those factors he reduced the head sentence to four years. 

22. In fixing the non‑parole period the Judge commented:

    I have to fix a non-parole period. When fixing the non-parole period I must bear in mind the seriousness of your offending but I must pay particular regard to your personal circumstances. At 23, you are young. You have never been to prison before, but you did have the warning of the conviction in 2006 for driving with an excess blood alcohol content. You have an excellent work record. You have strong family support. Your referees speak of your regard for others in the community.

    In addition to those matters I have just referred to, I have to apply special provisions of the Sentencing Act dealing with offences such as causing death by dangerous driving. Parliament has said that even for offences at the lower end of seriousness, courts should fix a non-parole period that is four-fifths of the head sentence. It is true, as your counsel has said, that if there are special reasons for fixing a lower proportion of the head sentence than four-fifths, then a court can do so. He submitted that the circumstances of your guilty pleas and the degree of your co-operation with the police are sufficient to warrant the fixing of a lower proportion.

    If those considerations stood alone, I would agree with your counsel. I have already referred to the particular significance of your early guilty pleas and your co-operation with the police. However, those considerations do not stand alone. Before I can consider whether there should be a lower than minimum non-parole period, your offending must be at the lower end of seriousness. The objective factors of your offending do not put you at the lower end of seriousness of offending. Although it was only one act of driving, there were two deaths. Your speed and alcohol readings were substantially over the limits. The car should not have been on the road…

23. The sentencing Judge then imposed a non‑parole period of three years and four months which was slightly in excess of the mandatory minimum non‑parole period prescribed by s 32A of the Act.

    Issues on Appeal

24. Counsel for the appellant submitted that in the passages quoted above the learned sentencing Judge has made a fundamental error in reasoning that before he could consider whether a lower than minimum non‑parole period prescribed by the section could be set, it was necessary to determine that the offending was at the lower end of seriousness. It was submitted that in the circumstances of this case the discretion available to the sentencing Judge in s 32A(2)(b) and s 32A(3) of the Act was activated, and in all the circumstances the sentencing Judge should have exercised the discretion and imposed a non‑parole period lower than the prescribed minimum. The failure to do so has resulted in a manifestly excessive non‑parole period. Permission to appeal the head sentence, on the ground that it is manifestly excessive, was refused.

    Analysis

25. The provisions of s 32A of the Act were applicable to the sentencing of the appellant because the offences to which he pleaded guilty are classified as “serious offences against the person”.

26. In respect of such an offence a mandatory minimum non‑parole period of four fifths of the head sentence is prescribed except in the circumstances set out in s 32A(2) of the Act. Section 32A of the Act is set out for convenience below:

    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.

    (4)     This section applies whether a mandatory minimum non parole period is prescribed under this Act or some other Act.

1. It can be seen that the Court may, if satisfied that there are special reasons to do so, impose a shorter non‑parole period than the minimum of four fifths prescribed.  The Court may also, if satisfied that a non‑parole period longer than the prescribed period is warranted because of any objective or subjective factors affecting the relative seriousness of the offence, fix a longer non‑parole period than the prescribed minimum. 

2. Section 32A(3) of the Act specifies the three matters to which the Court must have regard in determining whether special reasons exist to depart from the prescribed minimum by imposing a shorter non‑parole period. Section 32A(2)(a) of the Act requires the Court to consider whether any of the objective or subjective factors affecting the relative seriousness of the offence justify imposing a longer non‑parole period than the prescribed minimum.

3. In the circumstances of this case some of the factors referred to in s 32A(3) of the Act were present. It was not disputed that the appellant pleaded guilty at the earliest opportunity and indeed accepted responsibility for the deaths of his two passengers to the police at the scene on the evening in question. In those circumstances both sub‑sections (b) and (c) of s 32A(3) of the Act were relevant. The Court was therefore entitled to consider imposing a shorter non‑parole period than the prescribed minimum.

4. In our view the learned sentencing Judge implicitly acknowledged that when he said that if those considerations (referring to the early plea and cooperation with the police) stood alone that he would have agreed with the submission made by counsel for the appellant that the fixing of a non‑parole period lower than the prescribed minimum may have been warranted.

5. However the Judge went on to note that there were other considerations namely those referred to in s 32A(1) and (2) of the Act. By virtue of s 32A(1) of the Act, the mandatory minimum non‑parole period of four fifths prescribed by the Parliament is deemed to represent the non‑parole period for an offence at the lower end of the range of objective seriousness for that offence.

6. His Honour then considered the objective circumstances surrounding the commission of the appellant’s offending and identified a number of factors relevant to his assessment that the appellant’s offending could not be categorised as at the lower end of objective seriousness for the offence of causing death by dangerous driving.  Those factors included the fact that two deaths were caused, the excessive speed which the appellant was travelling, and the fact that his blood alcohol level was substantively over the legal limit.  His Honour concluded that those objective features together with some of the other factors which must have included the appellant’s previous conviction for drink driving, warranted a longer non‑parole period than the prescribed minimum. 

7. It was submitted that this approach by the sentencing Judge was flawed and that it was necessary for him to consider all of the circumstances and then decide whether the discretion in s 32A(2)(b) should be exercised.

8. Section 32A was the subject of detailed analysis in R v Ironside (2009) 104 SASR 54. Doyle CJ (with whom Kourakis J agreed) discussed the approach to be taken to the fixing of a non‑parole period in respect of an offence to which the mandatory minimum non‑parole period is prescribed by the section. After noting that the Court is required by s 32A(2) to consider whether the non‑parole period that it proposes to fix should be equal to, longer than, or shorter than the prescribed period, his Honour went on to discuss the enquiry that the Court must then undertake. Any aspects or circumstances of the particular offence which are referred to in s 32A(2) of the Act then have to be identified and in light of those matters the particular offending has to be compared with the statutory benchmark or yardstick, with a view to deciding whether the particular offending, in light of that comparison, warrants a non‑parole period equal to, longer than or shorter than the minimum non‑parole period.

9. First the Court considers all of the objective and subjective circumstances relevant to the fixing of the non‑parole period.  This necessarily will involve the Court making an assessment of the seriousness of the relevant offence but with a view to fixing the non‑parole period. 

10. As Doyle CJ observed, Parliament clearly intends that the fixing of the non‑parole period in respect of an offence to which the section applies should be approached by reference to the yardstick or statutory benchmark, which Parliament has determined will be four fifths of the head sentence, whatever that may be.  The Court noted there is something of an inherent illogicality about this process, as it requires a comparison of a potential non‑parole period arrived at by considering all of the relevant circumstances both objective and subjective, with a prescribed non‑parole period identified by reference only to the objective seriousness of the offence.  However as Doyle CJ commented in Ironside, that is precisely what Parliament requires this Court to do. 

11. In a later case R v Barnett [2009] SASC 332 Vanstone J made explicit what we consider to have been implicit in the reasoning of Doyle CJ in Ironside.  At [49] her Honour said:

    However, while the differences between the old and new regimes must be acknowledged, it remains true that the punitive, protective and rehabilitative purposes of fixing a non-parole period are constant under either one. In essence, the sentencing process for serious offences against the person remains much as it is in respect of other offences: all relevant factors are weighed and balanced. The new provisions both fix a floor, or a minimum ratio which the non-parole period is to bear to the head sentence, and link that minimum ratio to offences at the lower range of objective seriousness for those offences. As Kourakis J observed in Ironside at [179] the amendments, where they apply, will result in “… a smaller variation around a higher benchmark …”. By contrast, if the changes were to be interpreted in the manner advocated by the applicant, the result would be a fragmentation and distortion of the sentencing process — or at least that part of it concerned with the fixation of the non-parole period — such that the factors enumerated in s 32A(3) would be extracted from their context and, potentially, elevated beyond their true importance.

12. Later her Honour said at [52] and [53]:

    I consider that a proper assessment of the seriousness of the offence could well have led the judge to fix a non-parole period greater than the mandatory minimum. He was not asked to do so by counsel for the prosecution and no particular complaint about this aspect of his approach was made during the argument upon the appeal. I draw attention to this matter only because it seems to me that where, having considered all relevant matters, a sentencing judge determines that the offending is not at the lower end of the range, then there is no occasion to consider whether special reasons exist for fixing a non-parole period shorter than the mandatory minimum. The only question is, under s 32A(2)(a), whether a longer period is called for.

    It is plain from the structure and scheme of these provisions that Parliament’s aim was not to elevate the significance of the three matters identified in s 32A(3). Rather, the Parliament’s intention was that non-parole periods should not be reduced below a certain level, without a justification founded in one or more of those factors.

13. Although Kourakis J wrote a separate judgment in Barnett we do not understand him to be saying anything different to Vanstone J in the paragraphs quoted above.

14. Here, what the sentencing Judge did was consistent with the Court’s approach in Ironside and Vanstone J in Barnett. After acknowledging that even though the circumstances set out in s 32A(3)(b) and s 32A(3)(c) of the Act were present, the Judge acknowledged that he was nevertheless required to consider whether, in light of all the relevant circumstances, a non‑parole period longer than the statutory minimum for an offence at the lower end of the range of objective seriousness was called for. Having then determined that the offending was not at the lower end of the range of seriousness for an offence of causing death by dangerous driving, the only live issue left for the sentencing Judge was to consider whether those circumstances warranted the imposition of a non‑parole period longer than the statutory minimum prescribed.

15. In our view no criticism can be made of the sentencing Judge because he approached the matter in that way.

16. The question which arises in the circumstances of this case is whether the Judge was correct to classify the appellant’s offending as “not at the lower end of seriousness of offending”. 

17. The appellant was a 23 year old learner driver.  His speed at the time of the crash was excessive, his blood alcohol was substantially over the legal limit, the vehicle he was driving was unregistered and unroadworthy, and he caused the death of two people.  These factors without taking anything else into account, justified the categorisation of the appellant’s offending as in a more serious category of offending.

18. When all of the circumstances of the appellant’s offending are taken into account, including amongst others, his prior conviction and the fact that the appellant had available to him an alternative means of transport, it can be seen that considerations of both general and personal deterrence were very important.  In these circumstances we consider it was open to the sentencing Judge to determine as he did, that the fixing of a longer non‑parole period than the statutory minimum was warranted.  Even so, the increase was a mere fraction above the statutory minimum by about three per cent.  We do not think that such an approach discloses error.  If anything given the overall circumstances of the offending it might be observed that the head sentence of four years (about which there has been no complaint on appeal) was moderate if not merciful. 

19. For all of these reasons we would dismiss this appeal.