SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v JONGEWAARD
[2009] SASC 346
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Layton and The Honourable Justice Kourakis)
18 November 2009
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - SUSPENDED SENTENCE OF IMPRISONMENT - GENERAL PRINCIPLES
Appellant convicted after trial of an offence against s 45(1) of the Road Traffic Act 1961 (SA) – the maximum sentence of imprisonment for an offence against this section is 12 months – appellant also convicted of an offence against s 19AB(2) of the Criminal Law Consolidation Act 1935 (SA), the maximum sentence for which is 15 years' imprisonment – the Judge sentenced appellant to two years’ imprisonment, and fixed a non-parole period of 9 months – the Judge declined to suspend the sentence of imprisonment that he imposed – appeal against sentence.
HELD: Judge’s decision not to suspend the sentence that he imposed is erroneous only if the Court considers it to be unreasonable – shock and panic on the part of a motorist charged with an offence against s 19AB(2) no excuse for a failure to stop after the accident giving rise to the offence – having regard to the seriousness of the offending, in particular, the offence against s 19AB of the Criminal Law Consolidation Act 1935 (SA), and to the need for general deterrence, it was open to the Judge to decline to suspend the sentence of imprisonment that he imposed – appeal dismissed.
Criminal Law Consolidation Act 1935 (SA) s 19A(3), s 19AB(2); Criminal Law (Sentencing) Act 1988 (SA) s 18A, s 38(1); Juries Act 1927 (SA) s 7; Road Traffic Act 1961 (SA) s 43(1), s 45(1), s 45(3), referred to.
Markarian v The Queen (2005) 228 CLR 357, applied.
R v Jongewaard [2009] SADC 90, discussed.
R v JONGEWAARD
[2009] SASC 346Court of Criminal Appeal: Doyle CJ, Layton and Kourakis JJ
DOYLE CJ: This is an appeal against sentence.
Mr Jongewaard was sentenced by a District Court Judge after being tried and found guilty by the Judge, sitting as a judge without a jury in exercise of the power conferred by s 7 of the Juries Act 1927 (SA).
The Judge found Mr Jongewaard not guilty of the offence of causing serious harm by driving a motor vehicle in a manner which was dangerous to the public, contrary to s 19A(3) of the Criminal Law Consolidation Act 1935 (SA) (“the CLCA”).
The Judge found Mr Jongewaard guilty of a statutory alternative offence of driving without due care or attention contrary to s 45(1) of the Road Traffic Act 1961 (SA) (“the RTA”). That offence is an aggravated offence by virtue of s 45(3), because the Judge found that the offence caused serious harm to Mr Rex. I will refer to this offence as “the first offence”.
The Judge also found Mr Jongewaard guilty of an offence against s 19AB(2) of the
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- R v Jongewaard [2009] SASC 346
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- [2009] SASC 346
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CaseChat Overview and Summary
The central legal issue before the court was whether the judge's decision not to suspend the sentence of imprisonment imposed on the appellant was erroneous. The court had to consider whether the sentence was unreasonable or manifestly excessive, and whether the judge failed to take into account relevant mitigating factors in making the decision not to suspend the sentence. The court was required to determine whether the judge's decision not to suspend the sentence was unreasonable, and whether it was open to the judge to decline to suspend the sentence given the seriousness of the offending and the need for general deterrence.
The court held that the judge's decision not to suspend the sentence of imprisonment was not erroneous. The court found that it was open to the judge to decline to suspend the sentence given the seriousness of the offending, particularly the offence under s 19AB of the Criminal Law Consolidation Act 1935 (SA), and the need for general deterrence. The court considered the appellant's age and lack of previous convictions to be mitigating factors, but held that these factors did not outweigh the seriousness of the offending and the need for deterrence. The court held that the sentence was appropriate, taking into account all of the circumstances. The appeal was dismissed.
The court did not make any further orders.
Orders
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Reasons for decision
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Ratio Decidendi
Legal Principle Established
Overall, Mr White submitted that the matters favourable to Mr Jongewaard, which supported a decision to suspend, were not outweighed by other matters. In particular, neither the gravity of the offences nor considerations of deterrence called for a decision not to suspend the sentence.Consideration of appeal The issue for this Court is whether the Judge was wrong in imposing the sentence that he imposed, and in deciding not to suspend that sentence. This Court does not substitute its opinion as to an appropriate sentence. The Court will intervene only if error is established. As Gleeson CJ, Gummow, Hayne and Callinan JJ said in Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at [25]:[25]As with other discretionary judgments, the inquiry on an appeal against sentence is identified in the well-known passage in the joint reasons of Dixon, Evatt and McTiernan JJ in House v The King (1936) 55 CLR 499 at 504-505, itself an appeal against sentence. Thus is specific error shown? (Has there been some error of principle? Has the sentencer allowed extraneous or irrelevant matters to guide or affect the decision? Have the facts been mistaken? Has the sentencer not taken some material consideration into account?) Or if specific error is not shown, is the result embodied in the order unreasonable or plainly unjust? It is this last kind of error that is usually described, in an offender's appeal, as "manifest excess", or in a prosecution appeal, as "manifest inadequacy". In the present case Mr White did not point to any specific error of fact or law by the Judge. His submission is that the result is unreasonable, and manifestly excessive, and in particular that the Judge should have suspended the sentence. The latter argument will succeed only if this Court is persuaded that it was not open to the Judge to find that there was not “good reason” for suspending the sentence, in exercise of the power conferred by s 38(1) of the Sentencing Act. I have given careful thought to the points made by Mr White. The question is whether the end result is unreasonable or plainly unjust, or whether the sentence does appear to be manifestly excessive. As well, there is the question of whether the Judge’s decision not to suspend the sentence is erroneous, but it will be erroneous only if the Court considers it to be unreasonable. I do not agree that the head sentence and non-parole period are unreasonable or excessive. The offences are serious offences. The sentence is appropriate, taking into account all of the circumstances. I turn to the decision not to suspend the sentence. I agree, as did the Judge, that the matters that I have accepted, and the mitigating circumstances generally, tend to support a decision to suspend. Particularly relevant are Mr Jongewaard’s age, and the fact that he had not previously served a sentence of imprisonment. But it was appropriate for the Judge to give substantial weight to the seriousness of the offending, the seriousness of the second offence in particular, and to the need for general deterrence.