R v Jongewaard - [2009] SASC 346

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 346
Court 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 CLCA. That offence was that, having driven a vehicle without due care or attention, and having by that conduct caused physical harm to Mr Rex, Mr Jongewaard failed to satisfy his statutory obligations as a driver of a vehicle, those statutory obligations being found in s 43(1) of the RTA. The Judge found that Mr Jongewaard failed to stop his vehicle immediately after the accident and failed to give all possible assistance. I will refer to this offence as “the second offence”.
The first offence attracted a maximum penalty of imprisonment for twelve months and disqualification from holding or obtaining a driver’s licence for not less than six months. The second offence attracted a maximum penalty of imprisonment for 15 years, and disqualification from holding or obtaining a driver’s licence for at least ten years.
The Judge imposed a single sentence of imprisonment, exercising the power conferred by s 18A of the Criminal Law (Sentencing) Act 1988 (SA) (“the Sentencing Act”). The Judge sentenced Mr Jongewaard to imprisonment for two years. He fixed a non-parole period of nine months. The Judge considered whether he should suspend the sentence, in exercise of the power conferred by s 38 of the Sentencing Act. He decided that it was inappropriate to suspend the sentence.
The end result was an order for imprisonment for two years, a non-parole period of nine months, and an order that Mr Jongewaard be disqualified from holding or obtaining a driver’s licence for ten years.
The offences
Mr Jongewaard was about 27 years old at the time of the offences, and Mr Rex about 22 years old. They were friends, with a mutual interest in cycling. Each of them was competing at a high level, and each of them had prospects of working and competing at the elite level of the sport.
On Saturday 10 February 2007 they and eight others were celebrating Mr Rex’s birthday. They planned to stay that night at a resort, just south of Normanville, about 75 kilometres south of Adelaide.
During the late afternoon, they spent some time on the beach, and swimming at the resort. Some of them consumed alcohol during the afternoon. The Judge found that Mr Sam Rex, the brother of Mr Rex, persuaded Mr Jongewaard to drive him to Normanville to purchase cigarettes. This was a distance of about one kilometre. They set off about 9.00 pm. It was dark.
While they were away, and unknown to Mr Jongewaard, Mr Rex took a mountain bike that Mr Jongewaard had brought with him. He rode out of the resort and turned left onto the main road, riding in a northerly direction towards Normanville.
Mr Tsiavlis, one of the group, set off after him on a road bike that Mr Jongewaard had brought with him. Mr Tsiavlis was concerned about Mr Rex’s level of intoxication.
Neither bike was fitted with lights or with a reflector. As I have mentioned, Mr Rex had bare feet. Neither man was wearing reflective clothing and, on the Judge’s findings, neither of them was wearing light coloured clothing. Neither was wearing a helmet.
Mr Tsiavlis caught up with Mr Rex, and persuaded him to turn around. They then began to ride along the main road back towards the entrance to the resort.
It was now about 9.18 pm. Mr Jongewaard was returning from Normanville, the cigarettes having been purchased. While driving in a southerly direction, his car struck Mr Rex and the mountain bike that he was riding, about 160 metres north of the turn off (to the right) into the resort.
The road was a bitumen road, with one lane for travel in each direction. There were no street lights. There was fairly open land either side of the road, although there were some houses not far away. At the place where the collision occurred, there were trees on the side of the road making the road darker than at other places.
Mr Tsiavlis was riding the road bike in a southerly direction at the very edge of the bitumen. On the Judge’s findings there was an unbroken white line painted on the left hand side of the road, which the Judge referred to as a “fog line”. Between the fog line and the edge of the bitumen was a distance of about 0.9 metres, and this is where Mr Tsiavlis was riding.
Mr Rex was riding to the right of him, and about 0.5 metres to the right (or west) of the fog line. Prior to the collision Mr Tsiavlis was telling Mr Rex to get off the road. As Mr Rex was riding a mountain bike, he could have ridden on the sandy verge to the left (or east) of the bitumen roadway. Mr Rex did not respond to what Mr Tsiavlis said. Mr Tsiavlis said that Mr Rex was “just incoherent, still mumbling”. Mr Tsiavlis said that the alcohol was “most definitely” affecting Mr Rex’s bike riding. The Judge found that Mr Rex was “severely affected by alcohol and possibly a drug such as ecstasy as well”. I add that the Judge also found that Mr Jongewaard was affected by alcohol, although he did not make a specific finding as to the extent to which he was affected. The Judge said that he was not able to find beyond reasonable doubt that, at the time of the collision, the amount of alcohol in Mr Jongewaard’s blood exceeded 0.08 grams per 100 millilitres of blood.
Immediately before the collision Mr Jongewaard, on the Judge’s findings, was travelling at between 80 km/h and 100 km/h. The applicable speed limit was 80 km/h. The headlights on Mr Jongewaard’s car were on low beam.
In all the circumstances it is not surprising that Mr Jongewaard did not see Mr Rex or Mr Tsiavlis until it was too late. Mr Jongewaard tried to take evasive action, but his ability to do so was, he said, limited by an oncoming car. The attempted evasion was almost successful. It was the extreme left hand side of the car that hit Mr Rex. The car did not make contact with Mr Tsiavlis and he was not hurt. As to the collision, the Judge made the following findings, referring to Mr Jongewaard:
Your look out was defective. You did not see Mr Rex until it was too late to take any more effective evasive action. You were driving at that speed on low beam in those particular circumstances after having consumed alcohol. This required a much more effective look out particularly in light of the challenges presented by the oncoming car and the turn off which was only a short distance ahead.
It is not possible to separate any of these factors. The absence of any one of them may have made a difference – if you had not consumed alcohol, if you had not been driving at that speed, if you had been keeping a more effective look out, the outcome may have been different, but each of these factors combined to cause what happened. This constituted a substantial departure from the standard of care required from a driver in your position.
…
In actual fact, Mr Rex should accept a substantial amount of blame for the collision. His behaviour was reckless and dangerous. He, in fact, created the situation of danger which Mr Tsiavlis was well aware of, and desperately trying to extricate him from. Your fault was in failing to avoid the dangerous situation he created, and then not stopping afterwards.
Mr Jongewaard did not stop. He drove about 160 metres to the entrance of the resort, passed the entrance to the resort, then turned his car around and drove back to the resort gate. He then jumped over the fence and ran some 200 metres from the gate to the resort villa where his girlfriend and others were staying.
The rest of the group already knew that an accident had occurred. Mr Tsiavlis had telephoned them using Mr Jongewaard’s mobile telephone, which he had in his possession.
Several of the group set out for the scene of the accident to provide help. Mr Jongewaard remained at the resort until the police arrived. There is no suggestion that he attempted to evade the police.
As to the failure to stop, the Judge said:
As to the second count, you were aware that a collision had occurred and you made a decision not to stop. That constitutes a very serious offence. You had no idea whether only one, or whether indeed both cyclists may have been injured. Indeed, from the comments you made afterwards you may have thought you had even killed one rider. You did not know whether it was possible to assist either rider in the circumstances. One or both of them may still have been in a situation of danger on the road, yet you proceeded without stopping.
I accept that you panicked. You went back to the villa for advice and for the support of your friends. You were not entitled to do that. I accept that you intended to get help from the safety of the villa if possible. One factor which influenced you was the fact that you did not have your mobile phone with you. But Parliament has made it very clear by the provision of these extremely high penalties that the fundamental duty of a motorist, who is involved in a collision in which serious harm is caused, is to stop immediately and render such assistance as is possible.
…
I accept that it was decision taken on the spur of the moment and in a state of panic, as I said. …
Tragically, Mr Rex suffered numerous severe injuries. Mr Rex has been left suffering from significant disabilities. He continues to suffer considerably from his injuries. He will never be able to compete as a cyclist. He will be restricted in his ability to obtain employment. Not surprisingly, he feels bitter about what has happened.
I have set out the Judge’s findings about the circumstances of the collision, and about Mr Jongewaard’s failure to stop.
The Judge noted that once the police arrived, Mr Jongewaard cooperated with them. He also accepted that Mr Jongewaard was genuinely contrite and remorseful. He noted that Mr Jongewaard had made several attempts to contact Mr Rex after the accident, and desisted from doing so only after being asked by Mr Rex’s solicitor not to contact Mr Rex. The Judge accepted that Mr Jongewaard’s failure to stop was not attributable to a desire to escape from punishment, and he also found that Mr Jongewaard’s conduct did not, in fact, delay the arrival of help. Mr Tsiavlis was able to telephone for assistance, and did so. The Judge had before him a number of references from people who knew Mr Jongewaard. The Judge said that they spoke “very highly” of his integrity and determination. The effect of the references was that his actions that night were out of character. On the other hand, the Judge noted that Mr Jongewaard had been convicted of a number of quite serious offences, although he had never been imprisoned. When 21 years of age he had been convicted of driving under the influence of alcohol.
The Judge referred to the fact that Parliament has made it clear, by the maximum penalties that it has imposed, that the duty of a driver to stop and to render assistance is treated as a very serious obligation. Offences against the relevant provisions are serious offences, warranting significant punishment. The Judge said that deterrence was a significant factor in arriving at an appropriate sentence.
The Judge imposed a single sentence in exercise of the power conferred on him by s 18A of the Sentencing Act. He sentenced Mr Jongewaard to imprisonment for two years. He was satisfied that Mr Jongewaard was unlikely to reoffend. Having regard to this, to his personal circumstances and his contrition, he fixed a relatively low non-parole period of nine months. The Judge acknowledged that there were facts that could support a decision to suspend the sentence, on the basis that there was “good reason” to do so: s 38 of the Sentencing Act. He mentioned in particular Mr Jongewaard’s personal circumstances, his contrition, the extent to which he had paid the penalty for his conduct, and the unlikelihood that he would reoffend. But the Judge thought that the intention manifested by Parliament, and the importance of deterrence, made a suspended sentence inappropriate.
The Judge also made an order that Mr Jongewaard be disqualified from holding or obtaining a driver’s licence for a period of ten years.
Submissions on appeal
Mr White, counsel for Mr Jongewaard, criticised the head sentence, but the main attack was on the decision not to suspend the sentence of imprisonment that the Judge imposed.
Mr White emphasised a number of matters.
First, the fact that Mr Rex was substantially to blame for the collision, as the Judge found.
Second, that Mr Jongewaard did not make a calculated decision not to stop. He panicked. He did not attempt to escape from the police. There is no suggestion of that. He returned to the resort for “advice and support” from his friends, as the Judge found. I accept that this submission is correct, but I do not accept Mr White’s further submission that Mr Jongewaard thought that he was doing what was best in the circumstances, in returning to the resort. Mr White submitted that Mr Jongewaard went to the resort because he thought, having regard to his state of mind, that he was not best placed to help the person or persons whom he had injured and that his girlfriend and others at the resort would better assist at the accident scene. His girlfriend had undergone a first aid course. He was doing what seemed on balance the best thing to do. However, this is not what the Judge found. In his reasons for verdict (R v Jongewaard [2009] SADC 90 at [104]) the Judge said:
[104]Taking all the evidence into account, I am not persuaded on the balance of probabilities that Mr Jongewaard genuinely believed that to have stopped immediately would have endangered the physical safety of any person. It is more likely, on my view of the evidence, that he panicked, did not know what to do, and went back to the villa for advice and support. It is true that he did not have his mobile phone with him, but he did not know who did have it, let alone that Daniel Tsaivlis had it and had dialled “000” at the scene. He did not address his mind to the possibility of flagging down a passing motorist, as Mr Tsaivlis did, to obtain assistance.
In his sentencing remarks the Judge said:
I accept that you panicked. You went back to the villa for advice and for the support of your friends. You were not entitled to do that. I accept that you intended to get help from the safety of the villa if possible. …
The effect of this is that the panic to which the Judge refers was, as much as anything else, a concern by Mr Jongewaard for his own position. I am not suggesting that the Judge found that Mr Jongewaard was unconcerned about the welfare of the person or persons whom he had injured. But the Judge’s finding is not that Mr Jongewaard returned to the resort because he thought that this was in the best interests of the person or persons whom he had injured. As I understand the Judge’s finding, as I have said, the panic to which he refers was as much as anything else a concern by Mr Jongewaard for his own position, in light of what had happened, even though Mr Jongewaard did intend to call for help from the resort.
It is a significant fact that, for all Mr Jongewaard knew, he had left someone seriously injured and lying on the roadway, exposed to further danger from motor cars. This cannot be overlooked.
Mr White submitted that this was not a case in which considerations of deterrence should dominate. It is true that the Judge accepted that Mr Jongewaard was genuinely contrite. Personal deterrence was not a weighty factor. But the Judge rightly referred to the substantial maximum penalty for the second offence in particular, which was enacted in 2006. This reflects the gravity of the second offence. And the Judge rightly referred to the importance of general deterrence. It is important that motorists understand that they must stop and remain at the scene after an accident. Motorists involved in collisions potentially giving rise to serious injury are likely to experience shock and panic. This is not an excuse for failing to stop.
Mr White also pointed to the fact that Mr Jongewaard was generally of good character, and was unlikely to offend again. That is a relevant matter, but so were the previous convictions to which the Judge referred.
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.
Standing back, I am not at all persuaded that it was not open to the Judge, taking into account all relevant matters, to come to the conclusion that he reached. The result is not suggestive of error, nor is it unreasonable or unjust.
I would dismiss the appeal.
LAYTON J: I agree with the Chief Justice that the appeal should be dismissed and concur with his reasons.
KOURAKIS J: I agree that the appeal should be dismissed for the reasons given by the Chief Justice.