R v James - [2017] SASCFC 53

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v JAMES
[2017] SASCFC 53
Judgment of The Court of Criminal Appeal
(The Honourable Justice Vanstone, The Honourable Justice Kelly and The Honourable Justice Stanley)
25 May 2017
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-PAROLE PERIOD OR MINIMUM TERM - SOUTH AUSTRALIA
Appeal against sentence after pleas of guilty to property damage and aggravated causing harm by dangerous driving. Concurrent sentences were imposed, the longer one, for the second offence, being imprisonment for 3 years, 2 months and 1 week. A non-parole period of 2 years and 2 months was fixed. Whether sentences are manifestly excessive having regard to the circumstances of the offending and the appellant’s personal circumstances – whether non-parole period too high a proportion of head sentence.
Held: Vanstone J (Kelly and Stanley JJ agreeing) appeal dismissed.
Criminal Law Consolidation Act 1935 (SA) s 85; Criminal Law (Sentencing) Act 1988 (SA) s 18A, referred to.
Bugmy v R (2013) 249 CLR 571, considered.

R v JAMES
[2017] SASCFC 53
Court of Criminal Appeal: Vanstone, Kelly and Stanley JJ

VANSTONE J: Upon his first arraignment in the District Court Mark Allan James pleaded guilty to property damage and aggravated causing harm by dangerous driving. The first offence was constituted by his ramming of a police vehicle and the second by his driving dangerously, including driving into the vehicle of a Mr and Mrs Warren, thereby causing harm to Mrs Warren. The Judge fixed a sentence of two years, four months and three weeks for the first count and three years, two months and one week for the second. The sentences were to be served concurrently. He fixed a non-parole period of two years and two months.
Upon the appeal it is contended that the sentence is manifestly excessive.
Background
The offending can be summarized as follows. In the early hours of 7 February 2016 Mr and Mrs Warren were driving through Roseworthy on their way home. Ahead of them they saw the tail lights of a vehicle which was behaving erratically. It was braking heavily and swerving as it did so, and driving onto the wrong side of the road. The driver then executed a u-turn and so Mr Warren pulled over to the side of the road. The car drove towards their car. The car seemed to be heading straight for them on the wrong side of the road. At the very last moment the car veered away to avoid hitting them. Mr Warren drove off while Mrs Warren telephoned police. The car then executed another u-turn and came up behind them. Mr Warren turned off the road and for a time they could not see the car. But shortly afterwards they saw it again and Mr Warren pulled to the side of the road and switched off the headlights. Mrs Warren was still speaking to police. The car was then seen to be parked. Next they saw a police car nearing their location. They saw it stop in front of the other car, nose to nose. They then observed the car start up and drive forward, ramming the front of the police car and forcing it backwards along the road. About $4300 in damage was caused. The police car was later towed away. That is count one.
At that point Mr Warren turned into a driveway about 50 to 100 metres east of the other car. The couple then saw the car reverse at speed straight towards them. At the last moment Mr Warren drove his car quickly forward so that the other car collided with the rear of his car, rather than with the front passenger area. He said that prior to impact the car was travelling at “a fair rate of knots”. The impact was “fairly hard”. Mrs Warren was shaken and suffered bruising and soreness to her left shoulder. The car then “took off”, continuing to drive through the nearby streets until becoming inoperable due to a further collision with a tree and fence, where it became lodged. The driver, the appellant, abandoned it and ran from the scene. This is count two.
The appellant was found to have a blood alcohol level of 0.16 per cent. The Judge was told the appellant had no recollection of the trip from New South Wales to South Australia, of which these incidents were the culmination. Victim impact statements described the ongoing problems which Mrs Warren has experienced, including with night driving.
The Judge was told that the appellant is a 33 year old man of indigenous descent. A report about the appellant prepared by Dr Lorraine Lim was provided to the Judge. The appellant had an unfortunate childhood, details of which the Judge sketched. His record of previous offending is significant and includes driving offences, as well as criminal damage offences. Bonds associated with suspended sentences previously entered into have been the subject of estreatment proceedings.
The maximum penalty for the property damage offence against s 85(2) of the Criminal Law Consolidation Act 1935 (SA) is ten years imprisonment and the maximum for the second offence, aggravated causing harm by dangerous driving, is seven years imprisonment, together with licence disqualification for a least three years.
It appears that, while the appellant pleaded guilty to both charges upon arraignment, the property damage was a different charge from that faced previously in respect of the incident involving the police car, and therefore his plea rendered him eligible for a discount of up to 40 per cent. The plea to count two attracted a discount of up 20 per cent.
In sentencing in relation to count one the Judge took a starting point of four years. He reduced that to two years, four months and three weeks on account of the appellant’s plea of guilty. In relation to count two he took a starting point of four years and reduced it by 20 per cent to three years two months and one week. He ordered that the two sentences be served concurrently and fixed a non-parole period of two years and two months. The sentence was backdated to 7 February 2016, being the date when the appellant went into custody.
Arguments on appeal
The principal argument put in support of the appeal is that the starting point for each sentence was too high having regard to the objective circumstances of the offending, as well as the personal circumstances of the appellant, which engender great sympathy. The appellant contends that the Judge was wrong in finding that, notwithstanding the appellant’s background, the principal consideration in sentencing had to be the safety of the community. He referred to Bugmy v R (2013) 249 CLR 571.
In relation to the non-parole period counsel argued that it failed to adequately reflect the appellant’s personal circumstances and was too high a proportion of the head sentence. He put that it amounted to 68 per cent of the head sentence. At the very least, it was suggested that the non-parole period should be reduced.
Consideration
The sentence to be imposed needed to reflect the fact that, although the two offences occurred at a similar time and place, they were two separate offences involving different victims. They were committed at a time when the appellant was significantly affected by liquor and at the end of a long drive which he claimed not to recall. It cannot be said that the observation made by the learned sentencing Judge to the effect that the trip from New South Wales must have created a great danger to other road users is anything but apposite.
As mentioned, the personal history of the appellant is extremely unfortunate. His upbringing can only be described as deprived and in 2014 he suffered the loss of close family members. However, as was observed in Bugmy at 595, an offender’s deprived background does not necessarily have the same (mitigatory) relevance for all purposes of sentencing. Here, as the Judge observed, the need for protection of the public loomed large.
That there were two offences to be considered and that the Judge ordered that each sentence be served concurrently makes any discussion of the starting point for each count rather theoretical. This appeal, and other such appeals, proceeds against the final order, not the starting point. How the Judge determined to construct the sentence in terms of accumulation, or concurrency, or the use of s 18A of the Criminal Law (Sentencing) Act 1988 (SA) was a matter for him. What now needs to be considered is whether the sentences imposed, in particular the final sentence, are appropriate to the criminality involved in the two offences, while taking into account all the circumstances including the appellant’s background and his timely pleas of guilty. It is to be noted that a consideration of the sentence fixed in respect of each count must proceed in the realization that the two sentences were ordered to be served concurrently. Had the Judge determined to accumulate them he would have approached each one differently, ensuring that the circumstances aggravating each were kept strictly separate.
While the individual sentences were at the higher end of the available ranges I do not consider they were outside those ranges. The first involved a deliberate act which both endangered the police constable – who was next to the appellant’s drivers door at the time – and caused enough damage to the police car to decommission it, robbing the constable of its use. Count two was a particularly serious example of the charge, involving an extended period of danger to road users, an intentional act of driving into the vehicle of the Warrens’, and a continuation of dangerous driving thereafter. The level of deliberation associated with the second count is such as to distinguish it from other, like, charges.
In my mind it cannot be said that the final sentence is manifestly excessive. It was well within the range of sentences available to the Judge. Furthermore, I agree with the Judge’s observation that having regard to the appellant’s conduct, the safety of the community was the pre-eminent consideration.
The non-parole period was a high proportion of the head sentence. No doubt that was because of the appellant’s poor response to bonds previously entered into and his limited prospects of rehabilitation. It cannot be said to bespeak error.
Conclusion
I would dismiss the appeal.
KELLY J: I would dismiss the appeal. I agree with the reasons of Vanstone J.
STANLEY J: I would dismiss the appeal. I agree with the reasons of Vanstone J.