R v Passehl No. Sccrm-99-48 Judgment No. S252

[1999] SASC 252

R v PASSEHL
[1999] SASC  252

Court of Criminal Appeal: Doyle CJ, Duggan J and Wicks J

1. DOYLE CJ.       I agree with Duggan J that the appeal against the head sentence and the non-parole period should be dismissed.  I would allow the appeal, but only for the purpose of reducing the period of licence suspension from eight years to four years.  I agree with the reasons given by Duggan J.

2. DUGGAN J.      The appellant, who appeals against his sentence, pleaded guilty to offences which took place on 19th April 1998.   Shortly after 5.00 pm on that day police officers were requested to keep a lookout for a white Ford utility which, according to the information provided to them, was being driven by a person affected by drugs and alcohol.   Approximately one hour later two police officers saw a utility answering the description parked in the driveway of a house at Elizabeth East.

3. The appellant was slumped over the steering wheel of the utility and, after a short time, he kicked open the driver’s side door and abused the officers.   The officers warned the appellant not to drive the vehicle and left the premises. They drove a short distance from the house and stopped in a location from which they could see the vehicle.  They then observed the appellant get into the vehicle and drive off at a fast rate of speed.  After a short distance he stopped the vehicle and yelled abuse at the police officers.  He then drove off again.

4. The police gave chase and pursued the vehicle as it was driven in an erratic manner around the streets of Elizabeth.  The vehicle mounted the kerbing of the road at various places and the appellant braked suddenly from time to time.  The vehicle veered across the paths of other vehicles and travelled at speeds of up to an estimated 130 kms per hour. Other police vehicles joined in the pursuit.   Two of the police vehicles had to swerve away from the path taken by the appellant.   Eventually the utility collided with a vehicle at an intersection after the appellant drove through a red light.

5. The vehicle with which the utility collided was driven by Mr Amos who was accompanied by a friend sitting in the front passenger seat.   Mr Amos was injured in the accident and was taken to hospital in an ambulance.   He had pain in the region of the right collarbone and in his neck.  There was bruising to his left knee and he was in shock.

6. The appellant pleaded guilty to causing bodily injury by dangerous driving and driving under the influence of liquor.  A charge of endangering life was withdrawn. The learned sentencing judge sentenced the appellant to imprisonment for two years on the count of causing bodily injury by dangerous driving and imposed a non-parole period of 18 months.  He suspended the appellant’s driving licence for a period of eight years.  A further term of imprisonment for one month was imposed on the charge of driving under the influence of liquor, but this term was made concurrent with the sentence of two years.   A suspension of licence for twelve months on the drink driving count was also made concurrent with the driving suspension imposed on the other count.

7. The appellant was 36 years of age at the time of sentencing.  He has a number of previous convictions.  There are several convictions for driving offences including driving at a speed dangerous to the public, driving under disqualification, driving without a licence and failing to submit to breath analysis.

8. The learned sentencing judge was told that the appellant had been drinking alcohol and consuming drugs on the day of the incident and that he had been drinking alcohol to excess for some days prior to the offences.  His Honour stated that he took into account the appellant’s pleas of guilty, although he did not specify the extent of the reduction in accordance with the urging of  this court in R v Harris (1992) 59 SASR 300 at 302 and other cases which preceded it.

9. The first argument put forward by Mr Waye, for the appellant, was that the appellant was unaware of his actions at the time of driving by reason of the consumption of alcohol and the taking of prescription drugs.  Mr Waye argued that this was a mitigating factor.  Generally speaking, intoxication will not be a mitigating factor in the case of a driving offence.  More often than not, it will be an aggravating factor and, in some case, the substantial cause of the dangerous driving.   (DPP v Stone (1994) 63 SASR 297 at 307; Pfeiffer v The Queen JN2682 11th October 1990.  Unreported).

10. In any event, I do not think that this court should accept that the appellant was completely unaware of his actions while driving the vehicle.  It is true that the learned sentencing judge appears to have accepted that submission, but the appellant had sufficient awareness to start the vehicle, drive it, stop and reverse it towards the police officers and abuse them in the course of the incident.   There is no doubt that his faculties were substantially impaired, but this was not a case involving automatic behaviour.   Even if it was, I do not accept that this would have mitigated the seriousness of the behaviour.

11. There was a further suggestion by Mr Waye in his submissions before us that acquaintances of the appellant deliberately plied the appellant with alcohol and drugs so that he would sign cheques from which, presumably, they would benefit.  There was no evidence before the sentencing judge that this occurred.  Mr Waye told the sentencing judge in the course of submissions that the appellant had been intoxicated for some days, that he had purchased some alcohol himself and that he had been given prescription pills by acquaintances.  Mr Waye told the court that while the appellant was drinking people gave him some cheques to sign.   It was not put to the sentencing court that there was a deliberate attempt to intoxicate the appellant so that he would sign cheques.  He may well have been supplied with alcohol and drugs by others, but in my view there was no basis on the material before the court to find that the circumstances in which he became intoxicated constituted a mitigating factor.

12. Our attention was drawn to the report of a neurologist tendered at the sentencing hearing.  The appellant received injuries in a road accident in 1980 and the examination of the neurologist confirmed that there was surgery to the  vault of the appellant’s skull.     The neurologist reported as follows:

    “There is a past history of frontal head injury as outlined in October 1980.   CT scanning demonstrates scarring in the right frontal region and an EEG reveals a disturbance of cerebral function in both frontal regions, right greater than left.  Frontal lobe injuries do not generally affect intellect.  Indeed, he was able to successfully develop his diesel companies following the injury.  However, frontal lobe injuries can affect personality and behaviour and in particular may cause one to be less inhibited.  He could therefore be more susceptible to the disinhibiting effects of alcohol.  In my opinion, it would seem unlikely that he was able to know that his act on 19th April 1998 was likely to endanger life and to form the intention to endanger life or be recklessly indifferent thereto.”

13. The sentencing judge referred to the report in his sentencing remarks and accepted that the injury could affect the appellant’s personality and make him less inhibited.  I agree that this was a matter to take into account in assessing penalty.

14. The next argument advanced on behalf of the appellant was that the police should have arrested him at the time they first spoke to him and that this would have prevented the driving from taking place.  The material before the court does not justify this criticism of the police officers.  There is insufficient evidence to make such judgment, although on the little that is known, it would seem that the officers did not act improperly.   But whatever the true position, the appellant could not rely on the inaction of the police officers to excuse or palliate his own behaviour.

15. Mr Waye argued that only the driving which was related directly to the collision could be taken into account for the purposes of assessing penalty.   He submitted that consideration should be restricted to the act of driving through the intersection against the red light.  In my view this argument must be rejected as being without authority and contrary to the principles of sentencing.   Subject to the requirement that a person is not to be punished for an offence other than that for which a conviction has been recorded, the court is entitled to have regard to all the circumstances of aggravation.  Furthermore, the court is required by section 10(a) of the Criminal Law (Sentencing) Act 1988 to have regard to the “circumstances of the offence”.  This requirement should not be restricted in an artificial manner by limiting those circumstances to the driving which took place immediately before the accident.  Different considerations might apply if a court were asked to take into account driving which took place as part of a separate episode.  In such cases the issue would be whether the driving was sufficiently connected with the commission of the offence as to be relevant to penalty.  However the driving in the present case which commenced at the house and culminated in the collision took place over a relatively short period of time and was clearly part of the circumstances of the offence.

16. In considering whether the sentence was manifestly excessive it is relevant to have regard to the consideration that the penalties for causing death by dangerous driving and causing bodily injury by dangerous driving were increased in 1986.   The maximum penalty for a first offence of causing grievous bodily harm by dangerous driving is now imprisonment for 10 years. If the offence is one of causing bodily injury falling short of grievous bodily harm the maximum penalty for a first offence is imprisonment for four years.

17. A number of previously decided cases were cited to the court but, because of the variety of factual circumstances, they are of limited use. The circumstances of the driving, the nature of the injury caused and the antecedents of the offender are usually the most significant factors to take into account when assessing a penalty for offences under s19A of the Criminal Law Consolidation Act.   There is no doubt that the circumstances of the driving in this case were particularly serious and towards the higher end of the scale.   The appellant’s ability to control his vehicle was greatly reduced by his intoxication and he placed road users in the vicinity in danger.  The injuries to the victim were not serious, although it must be borne in mind that the causing of really serious injury would constitute a more serious offence under the legislation.  Then there are the previous convictions of the appellant which indicate obvious disregard on a number of occasions for the road traffic laws.  The appellant has not responded in an appropriate manner to the penalties which have been imposed up to this time for serious offences against the Road Traffic Act.

18. The cases to which we were referred suggest that this is a severe penalty, but in my view it has not been demonstrated that either the head sentence or the non-parole period was manifestly excessive.  Nor is there any reason to hold that the sentencing judge erred in his discretion in refusing to suspend the sentence.  However, when regard is had to the length of the sentence, I think that the suspension of the appellant’s driving licence for eight years in addition to the custodial penalty was manifestly excessive.   I would allow the appeal for the limited purpose of reducing the period of licence disqualification to four years.  I would confirm the custodial sentence.

19. WICKS J.          I agree with the orders proposed by Duggan J for the reasons he gives.