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.

This is an appeal against sentence.
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…

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 Harkin

Details

AGLC: R v Harkin [2010] SASCFC 39
Case: [2010] SASCFC 39
Decision Date: 14 October 2010

CaseChat Overview and Summary

The appellant, Benjamin Jeremiah Harkin, appealed against the sentence imposed by the District Court of South Australia, specifically the non-parole period of three years and four months. Harkin had pleaded guilty to two counts of aggravated causing death by dangerous driving, as well as six summary offences arising from the same incident. The dispute centred on whether the sentencing judge had correctly applied section 32A of the *Criminal Law (Sentencing) Act 1988* (SA) concerning mandatory minimum non-parole periods and proportionality, and whether the non-parole period was manifestly excessive.

The legal issues before the court were whether the sentencing judge erred in requiring the appellant's offending to be characterised as being at the lower end of seriousness before considering a non-parole period below the statutory minimum, and whether, in all the circumstances, a lower non-parole period was warranted, leading to the conclusion that the imposed period was manifestly excessive. The court was asked to determine if the judge had failed to properly exercise the discretion afforded by section 32A(2)(b) of the Act.

The court reasoned that the sentencing judge had correctly identified the objective factors of the offending, which included driving at a speed substantially over the limit, with a high blood alcohol content, in an unroadworthy and unregistered vehicle, resulting in the deaths of two passengers. While acknowledging the appellant's remorse, cooperation, good character, and previous conviction for driving with excess blood alcohol, the court found that these factors did not elevate the offending to the lower end of seriousness required to justify a non-parole period below the statutory minimum. The court concluded that the sentencing judge had not misapplied section 32A and that the appellant was fortunate to have received the sentence imposed.

Consequently, the appeal was dismissed, and the sentence, including the non-parole period, was upheld.

Orders

Orders of the court

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Background

Background to the litigation

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 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. 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. 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. 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. 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. 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…

Evidence

Evidence Before The Court

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Decision

Reasons for decision

GRAY J (dissent)

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 I would dismiss the appeal.ANDERSON and KELLY JJ:Introduction 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. 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. 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 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. 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.

Ratio Decidendi

Legal Principle Established

Established by:

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