R v Newman No. Sccrm-02-341

[2002] SASC 444

R  v  NEWMAN
[2002] SASC 444

Court of Criminal Appeal:  Doyle CJ, Lander and Bleby JJ (Ex tempore)

1. DOYLE CJ:            This is an application for leave to appeal against sentence.

2. The applicant was convicted by the District Court, after a trial before a judge without a jury, on one count of causing death by dangerous driving and one count of causing bodily harm by dangerous driving. A District Court judge exercised the power conferred by s18A of the Criminal Law (Sentencing) Act to impose a single sentence. The Judge sentenced the applicant to imprisonment for five years, fixed a non-parole period of three years and ordered that the applicant be disqualified from holding or obtaining a driver’s licence for eight years.

3. Leave to appeal was refused by a judge of this Court. The applicant has requested that his application be considered by the Full Court. He requested that the matter be listed for oral argument and the court so ordered.

4. The court has now heard submissions on the application.

5. The maximum sentence for the offence of causing death by dangerous driving is 10 years imprisonment. The maximum penalty for causing bodily harm by dangerous driving is four years imprisonment.

6. The applicant was a long-term abuser of drugs. He was addicted to heroin at the time of the offences. He had little or no memory of the events. The evidence established that while he was driving a car on Woodville Road he ran off the road and onto the footpath. The car knocked down and killed Mrs Bromson and knocked down and injured Mrs Minge.

7. The Judge found that although the applicant was badly affected by heroin, he was still responsible for his conduct in driving the car. The explanation for the incident remains unclear, but it is likely that it was simply a result of the applicant’s intoxication from the heroin that he had consumed. That was the finding made by the Judge and the basis on which he sentenced.

8. This was a very serious offence. The applicant must have decided to drive the motor car knowing that he was affected by heroin. That, in itself, was a reckless act. It is an aggravating factor. There is no hint of any incident or emergency that contributed to the bad driving. There is nothing at all by way of mitigation in the circumstances of the offence. In that, the case is about as bad as it could be.

9. The fact that the applicant is addicted to drugs is no excuse. As an experienced drug user he should have known that he should not drive. As I have said, the fact that he drove while affected by heroin is an aggravating feature of the case.

10. The applicant relies, in a written outline submitted by his counsel, on the possibility that the events were attributable to a seizure or epileptic fit. The trial Judge expressly rejected the possibility of a seizure unrelated to heroin. His finding was that the events were due to heroin intoxication. If the events were attributable to a seizure relating to heroin, the trial Judge found that the applicant knew that might happen but still drove his car. In any event, the Judge sentenced on the basis that the death and injury were the result of heroin intoxication. That finding was open to him.

11. The applicant is 30 years of age. He has a number of prior convictions for dishonesty, in connection with drugs, and for some motor vehicle offences. As the Judge said, his prospects of rehabilitation are uncertain. Previous attempts to break his addiction have not been successful and one cannot be confident at this stage that they will be successful.

12. The offences have had a devastating impact on the family of Mrs Bromson. Mrs Minge also continues to suffer significant adverse effects from her injuries.

13. For all those reasons, these are, as I have said, very serious sentences. The Judge considered all relevant matters. It cannot be said that he overlooked anything. The sentence is a significant one and at the higher end, but is within the range for such a serious offence. It is also relevant that this is an offence in relation to which general deterrence and individual deterrence are also significant.

14. Having considered the submissions carefully I am of the view that there is no arguable prospect of the appeal succeeding and, accordingly, I would refuse leave to appeal.

15. LANDER J:            I agree that leave to appeal should be refused.

16. BLEBY J:               I also agree.

17. DOYLE CJ:            The order of the court is leave to appeal be refused.