(The Honourable President Livesey, the Honourable Justice David and the Honourable Justice Nicholson)
20 April 2023
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN - PRINCIPLES APPLIED BY APPELLATE COURT TO CROWN APPEALS
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - CULPABLE OR DANGEROUS DRIVING CAUSING DEATH OR BODILY HARM
Crown appeal against sentence.
The respondent pleaded guilty to one count of aggravated causing death by dangerous driving. The sentencing Judge imposed a term of imprisonment for four years, three months and nine days, after allowing a five per cent discount for the plea from a starting point of four years and six months. A non-parole period of three years, five months and one day was fixed. The sentencing Judge ordered that the prison sentence was to be served on home detention. The sentencing Judge also imposed a licence disqualification for 13 years after allowing for one year of licence disqualification that had already been served.
The Director of Public Prosecutions (SA) sought permission to appeal on the ground of manifest inadequacy.
The offending occurred on the afternoon of 5 April 2021. The respondent and the victim had been drinking heavily. The respondent and the victim each drove the car with the other as front seat passenger on two occasions, following which the respondent drove on a fifth occasion. On the last occasion, the respondent lost control of the vehicle, understeered to the opposite side of the road and collided with a tree. The victim suffered facial and chest injuries and died at the scene. The respondent was found to have an estimated blood alcohol concentration of 0.193 per cent alcohol by volume at the time of the accident.
Held (Livesey P and David JA) granting permission to appeal and allowing the appeal:
1.The sentence imposed by the sentencing judge was manifestly inadequate.
2.It is important to ensure an appropriate degree of uniformity of sentencing, as well as to maintain adequate sentencing standards, for offending of this kind.
3.The very serious nature of the offending, combined with the very marked extent to which the sentence fell short of the appropriate range, demonstrate that permission should be granted notwithstanding the undoubted double jeopardy, vexation and distress caused to the respondent. There are strong policy reasons which warrant intervention in this case.
4.The sentence is set aside and the respondent is resentenced to a term of imprisonment of six years, seven months, and 25 days with a non-parole period of five years, three months, and 26 days.
Held (Nicholson AJA) dissenting and refusing leave to appeal:
5.The sentence was manifestly inadequate.
6.However, the public policy considerations in favour of avoiding the respondent from being seriously twice vexed are such that permission to…
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.
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Details
AGLC
R v Henderson [2023] SASCA 42
Case
[2023] SASCA 42
Decision Date
CaseChat Overview and Summary
The Director of Public Prosecutions (DPP) sought permission to appeal against a sentence imposed on the respondent, R v Henderson. The dispute concerned the adequacy of the sentence for a charge of culpable driving causing death, with the DPP arguing that the original sentence was manifestly inadequate. The matter was heard by the Full Court.
The central legal issue before the Court was whether permission to appeal the sentence should be granted. This required the Court to consider the principles governing Crown appeals against sentence, specifically whether the original sentence was so low as to fail to maintain adequate standards of punishment and public confidence in the administration of justice. The Court also had to determine whether the conduct of the deceased could be considered a mitigating factor in the respondent's offending.
The Court reasoned that permission to appeal should be granted because the sentence imposed was demonstrably too low, particularly given the serious nature of the offending. This involved a combination of high-level intoxication, excessive speed, and "hoon" driving. The Court distinguished the present case from *R v Walden*, stating that the approach in that case should not be followed. It was held that the victim's conduct, even if it involved voluntarily travelling with an intoxicated driver, did not mitigate the respondent's culpability. The respondent remained responsible for his decision to drive while heavily intoxicated and for driving in a manner that was seriously dangerous, which ultimately led to the fatal collision. The Court noted that the deceased's conduct was not established as a cause of the dangerous driving or the death.
The Court granted the DPP permission to appeal the sentence.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
We do not agree that the DPP should be refused permission to appeal. In our opinion, the DPP should be granted permission to appeal. The sentence was so low that it fails to maintain adequate standards of punishment for an offence where the dangerous driving is the product of a combination of a high level of intoxication, excessive speed and what is often described as “hoon” driving. It is necessary that this Court intervene to maintain public confidence in the administration of justice. The decision in R v Walden We agree with Nicholson AJA that the approach adopted in R v Walden should not be followed in this State.[2] Indeed, it may be doubted whether the conduct of the victim in that case – voluntarily traveling as a passenger with an intoxicated driver without wearing a seatbelt – could be regarded as involvement in the offender’s driving, or as permitting “a somewhat less serious view” to be taken of the offending.[3] [2] R v Walden (1993) 19 MVR 193.[3] Cf, R v Walden (1993) 19 MVR 193, 194 (King CJ), 199 (Olsson J). In this case it cannot properly be said that the respondent’s offending was mitigated or qualified where it was not established that the conduct of the deceased operated as a cause of the dangerous driving or of the deceased’s death.[4] Similarly, it was not established that these were caused by anyone or anything else. [4] DPP v Currie (2019) 87 MVR 340, [47] (The Court). Whatever might be said about the conduct and implicit encouragement of the deceased victim, it did not mitigate the respondent’s offending. The respondent remained responsible for his decision to drive whilst heavily intoxicated. The respondent remained at the wheel of his vehicle and responsible for driving in a manner which was seriously dangerous.The circumstances of the offending The offending was objectively very serious. The respondent was drinking with his neighbour (the deceased), the deceased’s wife, and another friend, Mr Bubner, at the respondent’s home in a town in the Adelaide Hills. During the late afternoon, the respondent and the deceased took turns driving the respondent’s vehicle around the town. The respondent and the deceased each drove the vehicle on two occasions. On one of those occasions, the deceased’s wife was a passenger in the vehicle when the respondent accelerated through an intersection and started to lose control of the vehicle. He continued to drive at speed and almost collided with a stobie pole. The deceased’s wife was scared and got out of the vehicle. Local residents and neighbours observed the vehicle shortly before the fatal collision. One resident described the driver of the vehicle as having completed a ‘burn out’, after which he continued to drive around the area. Other witnesses described the vehicle being driven at speed. One person said that the driver of the vehicle approached a moderate left-hand bend above the speed limit of 80 km/hr. Immediately before the collision, the respondent was driving in a northerly direction along Pyrites Road in the Brukunga area. The deceased was in the front passenger seat. The signed speed limit along the relevant part of Pyrites Road was 80 kilometres per hour. The respondent was travelling at 118 kilometres per hour when he failed to negotiate a sweeping left bend. He lost control and crossed over the solid middle white line, travelling onto the opposite lane, before colliding with a large tree on the other side of the road.