R v Payne - [2004] SASC 160

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v PAYNE
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Mullighan, The Honourable Justice Nyland, The Honourable Justice Sulan and The Honourable Justice Anderson)
7 July 2004
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY ATTORNEY-GENERAL OR OTHER CROWN LAW OFFICER - APPLICATIONS TO INCREASE SENTENCE
Application to establish a sentencing guideline for offences against s19A of the Criminal Law Consolidation Act 1935 (SA) - whether the Court should establish a sentencing guideline - whether there has been an incorrect approach to or inconsistent application of sentencing principles - whether the Court should establish a sentencing guideline increasing the penalty - whether the Court should emphasise an appropriate penalty in terms of an ordinary or typical case - sentencing principles discussed.
Application by Director of Public Prosecutions for leave to appeal against sentence - Defendant convicted of cause death by dangerous driving - whether sentence manifestly inadequate - application for leave to appeal against sentence dismissed.
Criminal Law Consoliation Act 1935 (SA) Part 11, s 19A, s 19A(1), s 19A(3), s 19A(4); Criminal Law (Sentencing) Act 1988 (SA) s 10, s 11, Pt 2 Div 4, s 29A, s 29A(1), s 29A(2), s 29A(3), s 29A(5); Criminal Law (Sentencing) Act 1988 (SA) s 29B, s 29B(1)(d), s 29B(2), s 29C, s 29C(3), s 74; Controlled Substances Act 1984 (SA), referred to.
R v Place (2002) 81 SASR 395; Police v Cadd (1997) 69 SASR 150; R v King (1988) 48 SASR 555; R v Mangelsdorf (1995) 66 SASR 60; R v D (1997) 69 SASR 413; The Queen v Knight (1986) 40 SASR 479; Wong v The Queen (2001) 207 CLR 584; Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51; The Queen v Johnson (1985) 38 SASR 582; R v Nemer (2003) 87 SASR 168, discussed.
Everett v The Queen (1994) 181 CLR 295; Griffiths v The Queen (1997) 137 CLR 293; R v Osenkowski (1982) 30 SASR 212, considered.

R v PAYNE
[2004] SASC 160
Court of Criminal Appeal

Doyle CJ, Mullighan, Nyland, Sulan and Anderson JJ The Court has before it an application by the Director of Public Prosecutions for leave to appeal against a sentence imposed by the District Court.
The sentence is for the offence of causing death by dangerous driving (as it is commonly called) contrary to s 19A(1) of the Criminal Law Consolidation Act 1935 (SA) (“the CLCA”).
The Director has asked the Court, in the course of these proceedings, to establish sentencing guidelines for offences against s 19A. As well as providing for the offence of causing death by dangerous driving, s 19A provides for the offence of causing bodily harm by dangerous driving by s 19A(3). Parliament has differentiated between cases in which grievous bodily harm is caused and cases in which bodily harm falling short of grievous bodily harm is caused, those different consequences attracting different maximum penalties by virtue of s 19A(4) of the CLCA.
On the application for a judgment establishing sentencing guidelines, we heard Mr Edwardson, counsel for Mr Payne, the person sentenced by the District Court. He opposed a guideline judgment. In support of the application we heard the Solicitor-General, appearing for the Attorney-General, and Ms Layton QC, appearing for Victim Support Service. As will appear, they did not support a sentencing guideline on the same basis as the Director. In opposition to the application we heard Mr Barrett QC, appearing for Offenders Aid and Rehabilitation Service of SA Inc, Ms Shaw QC appearing for the Legal Services Commission and Mr Gaite appearing for the Aboriginal Legal Rights Movement Inc. A number of affidavits were tendered, and exhibited to some of those affidavits was a considerable amount of documentary material. It is neither necessary nor practical to refer to all of that material. Our reference to it will necessarily be selective.
The legislation
This is the first application made to the Court under provisions contained in Division 4 of Part 2 of the Criminal Law (Sentencing) Act 1988 (SA) (“the Sentencing Act”). This division was added to the Sentencing Act in 2003.
The provisions of Division 4 are as follows:
“29A. (1) The Full Court may give a judgment establishing sentencing guidelines.
(2)A sentencing guideline is to guide a sentencing court in determining sentence for –
(a)     offences generally or a particular class of offences;
(b)    offenders generally or a particular class of offenders.
(3)A sentencing guideline may –
(a)     indicate an appropriate range of penalties for a particular offence or offences of a particular class; and
(b)    indicate how particular aggravating or mitigating factors (or aggravating or mitigating factors of a particular kind) should be reflected in sentence.
(4)In particular, a sentencing guideline may indicate (and give guidance about the extent of) a reduction of sentence below the level that would otherwise be appropriate in any of the following cases:
(a)     where the defendant has co-operated with authorities in the investigation of an offence;
(b)     where the defendant has pleaded guilty to the charge;
(c)    where the defendant has contributed in some other way to reducing the burden on the criminal justice system or the burden of crime on the community.
(5)A sentencing court –
(a)     should have regard to relevant sentencing guidelines; but
(b)    is not bound to follow a particular guideline if, in the circumstances of the case, there are good reasons for not doing so.
29B. (1)            The Full Court may establish (or review) sentencing guidelines –
(a)     on the Full Court’s own initiative; or
(b)    on application by the Director of Public Prosecutions; or
(c)    on application by the Attorney-General; or
(d)    on application by the Legal Services Commission.
(2)Each of the following is entitled to appear and be heard in proceedings in which the Full Court is asked or proposes to establish or review sentencing guidelines:
(a)     the Director of Public Prosecutions;
(b)    the Attorney-General;
(c)    the Legal Services Commission;
(d)    the Aboriginal Legal Rights Movement Inc.;
(e)    an organisation representing the interests of offenders or victims of crime that has, in the opinion of the Full Court, a proper interest in the proceedings.
29C. (1) The Full Court may, if it thinks appropriate, establish or review sentencing guidelines in the course of an appeal against sentence.
(2)However, if sentencing guidelines are to be established or reviewed on the application of the Attorney-General, the proceedings must be separate from other proceedings in the Full Court.
(3)The Full Court may inform itself in any way it thinks fit on any question affecting the formulation or revision of sentencing guidelines and is not bound by the rules of evidence.
(4)However, if evidence relevant to the formulation or revision of sentencing guidelines is considered by the Full Court in the course of appellate proceedings, that evidence must not be used by the Court as a basis for increasing the sentence imposed on the offender unless the evidence was before the court that imposed the sentence in the first instance.”
These provisions take their place in the Sentencing Act, and are to be interpreted in that context. They are to be given their ordinary and natural meaning, but subject to that a meaning that is consistent with the fact that they are in Part 2 of the Sentencing Act, which is headed “General Sentencing Provisions”.
Sentencing guidelines
It is desirable to explain how this Court as a court of appeal gave guidance to judges and magistrates when they impose sentence, before the enactment of Division 4 of Part 2. We do so to put the statutory provisions in their context.
This Court exercises jurisdiction under the CLCA within a system of common law principles that impose certain limits on the function of a court of appeal, as well as conferring certain powers on a court of appeal The conferral of appellate jurisdiction by Part 11 of the CLCA assumes their existence. Those limitations and powers are part of our common law system. It is within the power of the Parliament of this State to alter them, but legislation will not be interpreted as intended to alter basic principles of our common law system unless it clearly indicates an intention to do so.
Accordingly, it is desirable to explain the nature of a sentencing guideline in the context of our common law system. That involves stating briefly what a court of criminal appeal can and cannot do. It is also desirable to explain why the outcome in this case is not, and cannot be, a decision that dictates in advance the actual sentence to be imposed whenever in future a person is sentenced for an offence against s19A, or even a decision that dictates the sentence to be imposed for an offence against s 19A if a particular circumstance or particular circumstances are present or absent.
The general nature of the function of the Court when it gives guidance to judges and magistrates is conveniently indicated by the fact that Parliament has referred to “sentencing guidelines” and to the fact that such guidelines may “guide a sentencing court in determining sentence”: s 29A(1) and (2).
This Court has given guidance to courts of the State, to be followed when sentencing offenders, in the exercise of its ordinary jurisdiction to hear appeals against sentence under the CLCA. It has done so for many years. It has done so implicitly in deciding particular cases. A decision on the sentence to be imposed in a particular case will necessarily, by implication, give some indication of the level of sentence to be imposed for an offence of the kind in question in light of the circumstances that are present. But quite apart from that, on occasions the Court has given more general guidance as to the principles to be applied to the punishment of crimes of a particular type, and as to the general standard of sentencing to be applied. The practice of this Court was conveniently summarised in the reasons of the majority (Doyle CJ, Prior, Lander and Martin JJ) in R v Place [2002] SASC 101; (2002) 81 SASR 395 commencing at [21]. Without repeating what is said there, it is convenient to cite two passages from earlier decisions. Each passage makes important points that have underpinned the practice of this Court, and similar observations can be found in numerous other cases. In Police v Cadd (1997) 69 SASR 150 at 165, Doyle CJ said:
“It is the function of this Court to ensure that the sentencing process in individual cases is not affected by error of principle. It is also the function of this Court to ensure that sentences are neither excessive nor inadequate. The latter function is performed in two ways. First, in individual cases, by correcting a particular sentence that is considered to be excessive or inadequate. Secondly, by establishing standards of sentencing for particular offences, when the court thinks it appropriate to do so. That may be done over time through the process of correcting individual sentences. But it may also, in my opinion, be done by the court indicating an appropriate sentence range for a particular offence or offences of a particular type.”
In R v King (1988) 48 SASR 555 at 557-558 Cox J said:
“In a word, this case is about sentencing standards, but it is important, I think, to bear in mind that when a standard is created, either by cumulative force of individual sentences or by a deliberate act of policy on the part of the Full Court, there is nothing rigid about it. Such standards are general guides to those who have to sentence in the future, with certain tolerances built into or implied by the range to cater for particular cases. The terms of approximation in which such standards are usually expressed – “about” and “of the order of” and “suggest” and so on – are not merely conventional. The same notion must qualify, in my opinion, any inclination to apply the policy of s 302 in a purely mechanical way. It follows that a particular sentence will not necessarily represent a departure from the standard because it is outside the usual or nominal range; before one could make that judgment it would be necessary to look at all of the circumstances of the case. Those circumstances will include, but of course not be confined to, the questions whether or not the offences charged are multiple or single and whether the defendant is a first offender with respect to the particular crime charged. That is not to undermine the established standard but simply to acknowledge that no two cases, not even two “standard” cases, are the same.”
This Court has continued to follow the approach outlined in Place and to apply the principles reflected in the citations from Cadd and from King.
The Court has done so usually in response to a submission by counsel for the Attorney-General or for the Director that there should be an increase in the standard or severity of sentence imposed in respect of a particular offence, or a particular category of offences. On the occasions on which the Court has accepted such a submission, it has usually indicated a range within which a sentence for the relevant offence might be expected to fall, but in doing so has acted on the basis of the principles referred to above. In R v Mangelsdorf (1995) 66 SASR 60, the approach that the Court took was to emphasise, and to remind sentencing courts of, the standards that had been established by existing decisions of the Court. The Court was dealing with offences against the Controlled Substances Act 1984 (SA). In Cadd the Court reviewed and gave guidance on the approach to be taken in sentencing persons convicted for driving a motor vehicle while disqualified from holding or obtaining a driving licence. Sometimes the Court has acted of its own initiative, in the course of disposing of an appeal. In R v D (1997) 69 SASR 413, the Court was dealing with an appeal against sentence imposed for the recently created offence of persistent sexual abuse of a child contrary to s 74 of the CLCA. In dealing with that appeal the Court considered a number of decisions relating to the offence of unlawful sexual intercourse with a child, and having done so, Doyle CJ said at 423:
“This review of the decisions of this Court leads me to think that in future the sentences imposed for cases like this should be increased for persons who commit such offences in the future. By this I mean cases involving a course of conduct including unlawful sexual intercourse with a child, and committed by a person in a position of trust and authority.”
He then went on to indicate the general approach that should be taken in the future. Bleby J agreed with his reasons. Similarly, in The Queen v Knight (1986) 40 SASR 479, King CJ, in the course of sentencing an offender, took the opportunity to indicate that in future the offence of escaping from prison should attract heavier punishment than it had been attracting. He said at 480:
“I feel somewhat constrained in the sentence which I can impose by the level of sentences which has prevailed in the last few years. I consider that level to be too low, but I hesitate to impose a sentence which goes too far beyond the prevailing standard without due warning. I think that the time has come for a substantial increase in the level of punishment for this offence. The maximum of five years imprisonment prescribed by law, although, of course, reserved for the most serious offences of this kind should not be regarded as an unreal and irrelevant maximum sentence. It is the duty of the courts to impose sentences for this crime which will have a genuinely deterrent effect upon prisoners who are tempted to escape.”
We refer to these cases simply to make the point that the concept of sentencing guidelines is not a new one, and to indicate in a general way how sentencing guidelines operate and how they come to be created.
Although we have referred to the terms “guidelines” and “guidelines judgment”, the following observation by Gleeson CJ in Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584 at [5] is apposite:
“The expressions “guidelines” and “guidelines judgments” have no precise connotation. They cover a variety of methods adopted by appellate courts for the purpose of giving guidance to primary judges charged with the exercise of judicial discretion. Those methods range from statements of general principle, to more specific indications of particular factors to be taken into account or given particular weight, and sometimes to indications of the kind of outcome that might be expected in a certain kind of case, other than in exceptional circumstances.” (Footnote omitted)
Bearing in mind what Gleeson CJ said, and that on different occasions there will be different reasons for giving a guideline, we affirm what Doyle CJ said in Cadd at 166:
“The function of establishing appropriate standards is an important aspect of ensuring, as best one can, that adequate standards of punishment are observed. Establishing appropriate standards also tends to ensure that there is such consistency of approach as is achievable in a system in which the appropriate sentence depends upon, in part, the circumstances of the individual case and of the individual offender, and a system in which sentencing is as individualised as it is in our system.”
In this context we again refer to prior decisions of this Court, and in particular to the decision in Place.
We have summarised the Court’s approach and practice, to emphasis that the practice of this Court giving guidance to sentencing courts is well established, and is regulated by principles that govern the exercise of the Court’s jurisdiction. Those principles dictate that the guidance given is in terms of sentencing principles to be applied, and the sentencing range that can be expected for certain types of case. The guidance does not take, and as a matter of law cannot take, the form of a determination of the actual sentence to be imposed in future cases. That would amount to an attempt to exercise the power, that rests with the sentencing court, to determine the sentence appropriate to the case, in light of relevant statutory provisions and of the principles and standards identified by this Court.
A matter which received some attention in the submissions in this case, and rightly so, warrants particular mention. A guideline judgment may help the public understand the approach that a court takes in relation to sentencing for a particular offence or category of offence. Public confidence in the administration of justice is vital, and as has been often said, depends in part upon the public having a general understanding of how the courts proceed, and why they proceed as they do. Circumstances can arise in which there is heightened public concern about a particular offence or category of offending, and about the approach that the courts take to sentencing for that offence. When that is so, one purpose served by a guideline judgment may be to explain to the public the approach that the courts are taking in dealing with the offence in question. A guideline judgment is likely to do this better than individual sentencing remarks, which usually are not the appropriate place for a consideration of general sentencing principles.
The application of the legislation

As we have already indicated, the enactment of Division 4, providing for sentencing guidelines, is to be seen in the context that we have outlined.
We interpret s 29A as a legislative endorsement of the existing practice of the Court, and as authorising and in a sense encouraging the continuation of that practice. There is nothing in s 29A to suggest that Parliament has authorised or required the Court to depart from its existing practice, a practice that is consistent with common law principles that regulate the exercise by this Court of its appellate jurisdiction under the CLCA. We consider that this conclusion is supported by the statutory reference to guidelines, and to the function of a guideline judgment as being the giving of guidance.
Section 29A(3) refers to the function of guidelines in a manner consistent with the Court’s existing practice. In Mangelsdorf this Court indicated an appropriate range of penalties for certain offences under the Controlled Substances Act. In numerous decisions this Court has indicated that ordinarily an early plea of guilty should be regarded as a substantial mitigating factor. These are simply two illustrations of the use of guidelines in a manner contemplated by subsection (3) of s 29A. There is nothing in subsection (5) to suggest that Parliament contemplated a departure from existing practice. When the Court has given guidance in the past it has emphasised that it is doing no more than that, and that the guidance it gives is not intended to dictate a particular outcome in a particular case, and that the guidance it gives may be inapplicable to a particular case.
Accordingly, there is no reason to treat s 29A as authorising any departure from the requirement, found in s 10 of the Sentencing Act, that a sentencing court is to take account of any of the numerous matters referred to there that are relevant in the circumstances of the case, and of those other matters not specifically referred to there, that remain as relevant considerations in arriving at a sentence in a particular case. Three obvious illustrations of that latter residual category of matters are the statement in s 11 of the Sentencing Act that imprisonment may be imposed only in certain circumstances; the statutory maximum provided for an offence, and the common law principle that when several persons are sentenced for the same offence, there should be an appropriate relationship between the penalty imposed on each of them, and any unjustified disparity should be avoided.
When exercising the power conferred by s 29A to establish sentencing guidelines, it is the function of this Court to identify and explain the principles according to which a sentencing court should proceed, subject always to the provisions of the Sentencing Act. This Court has the power to indicate in general terms the appropriate range of penalties for a particular offence, or for a particular kind of a particular offence, although whether the Court should do so in a particular case will depend on the offence in question and the suggested reason for doing so. On occasions, the Court may indicate the weight to be given to a particular factor, although it will be relatively rare that the Court will do so. The reason for this is that the statutory obligation to take account of all relevant factors tends to militate against the utility of this Court singling out a particular factor, and indicating the weight to be given to it. However, exceptionally, for reasons that are well known, the Court has consistently said that an early plea of guilty will ordinarily attract a substantial reduction in sentence, and has indicated that a reduction of the order of 20 per cent may well be appropriate, although in a particular case the reduction may be more or less than that: see Place at [40]–[46] and [80]–[83].
A judge or magistrate passing sentence must identify the relevant circumstances in the case before the judge or magistrate, and the weight to be given to each of those circumstances, having regard to any relevant requirements in the Sentencing Act and to any guidance that this Court has given. In giving a guideline judgment this Court cannot and does not claim to dictate the outcome of the sentencing process in a particular case. To do so would be to depart from the proper role of this Court. Even when the Court indicates the range of sentence that will ordinarily be appropriate for a particular offence, the Court must express itself in general terms and, as it has in the past must emphasise that it is doing no more than giving general guidance. That is because it is not the function of this Court, in the abstract, to identify by category or by class certain factors (for example, the age of the offender, the offender’s character, the effects of the crime) and then to specify the sentence to be expected in such a case. The objection to this is that it is an attempt to assign in advance the weight to particular factors, when the weight to be given to those factors or circumstances can only be determined in the light of all of the circumstances of the relevant case. That is what the Sentencing Act itself requires in s 10.
We acknowledge that there is an element of imprecision in this, but the distinction that we draw rests on the distinction between a court determining matters of principle and sentencing standards, and on the other hand the application of the relevant principles and standards by a sentencing court to the circumstances of a particular case, resulting in a sentence appropriate to that case.
It is within the power of Parliament to confer on this Court a power that would enable it to do more than the Court in practice does. Parliament can, if it wishes, confer on this Court a power which it does not have by virtue of the common law principles that regulate the exercise of the statutory function of deciding appeals. But Parliament’s power is subject to the restrictions derived from the Commonwealth Constitution referred to in the decision of the High Court in Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51. In any event, our view is that Parliament has not altered the relevant common law principles.
Finally, in this context, we refer to the decision of the High Court in Wong. That decision indicates that in giving guidance to lower courts when sentencing offenders, an appellate court must exercise care for two reasons. First, because unless the relevant common law principles have been modified, the guidance given must not go beyond the legitimate function of an appellate court. Second, because if the sentencing process is regulated by statutory provisions, the guidance that an appellate court gives cannot override any statutory requirements such as s 10 of the Sentencing Act, which requires the sentencing court to consider all relevant matters.
Drawing that line will not always be easy. That point is illustrated by Wong, in which the High Court said that the Court of Criminal Appeal of New South Wales had crossed the line in giving a guideline judgment. It is not necessary on this occasion to examine the reasons in Wong in detail. It is sufficient to refer to one passage in the reasons of Gaudron, Gummow and Hayne JJ, where their Honours identified as erroneous an attempt to give a guideline prescriptive effect, and an attempt to determine by a guideline the outcome in a particular future case. Their Honours said at [83]:
“For the reasons that have already been given, the guideline stated in the present matters was intended to have prescriptive effect. As was said in McDonnell, it was to be treated as if departure from it would evidence an error of principle by the sentencing judge. Again, for the reasons given earlier, there is an important distinction between a court articulating the principles which do, or should, underpin the determination of a particular sentence and the publication of the expected or intended results of future cases. Articulation of applicable principle is central to the reasoned exercise of jurisdiction in the particular matters before the court. By contrast, the publication of expected or intended results of future cases is not within the jurisdiction or the powers of the court.”
On that point we refer also to the reasons of Gleeson CJ at [31], Kirby J at [137] – [139], and Callinan J at [167].
In its decision in Place this Court explained how its existing practice was thought to be consistent with the decision of the High Court in Wong. We will not go over the same ground here.
We conclude this part of our reasons with a reference to the purpose to be served by a guideline judgment. In the passage from his reasons in Wong, set out earlier, Gleeson CJ conveniently referred to one of the purposes, that of giving guidance to sentencing judges. That guidance is intended to promote consistency of approach, in terms of principles and standards of sentencing. As Gleeson CJ said at [10]:
“The increasing size of the judiciary, and the legal profession, is a factor in the importance which is attached to the problem of inconsistency, and the need for appellate guidance. In the days when criminal justice was administered by a relatively small group of judges, it was easier to maintain consistency. The range of likely penalties for common offences was well known, and significant departures from that range were readily identified. Idiosyncratic decision-making was not difficult to recognise. Now, at least in New South Wales, a large number of judges (and acting judges) sentence offenders, and there is a growing need for the Court of Criminal Appeal to give practical guidance to primary judges. The form that such guidance might properly take is an important issue in the administration of criminal justice. If there is insufficient guidance and resulting inconsistency, public confidence in the value of discretionary sentencing will suffer.”
In the passage set out above from the Court’s reasons in Cadd, other purposes are identified. Another significant purpose that we would identify is one to which we have already referred, namely, informing the public about the basis of the Court’s approach, and in that way hopefully enhancing public confidence in the administration of justice.
We have already said that we treat s 29A as endorsing the Court’s existing practice. The provisions of Division 4 do more than that. Section 29B contains some procedural provisions that are new. The provision in s 29B(1)(d) that the Legal Services Commission may apply to the Court to establish or review a sentencing guideline is new. The Commission would lack standing to do so, but for the legislative provision. Section 29B(2) is also new, in that it confers an entitlement to be heard on persons other than the Director and the Attorney-General. Section 29C is new in so far as it authorises the Court to establish or review sentencing guidelines in proceedings that are separate from an appeal against sentence. Previously, the Court could have considered giving guidance only in the course of an appeal before it. Section 29C enables the Court to establish or to review a guideline whether or not an appeal involving the category of offence in question or category of offender has come before it. There is no reason to conclude that when the Court does this, it should depart from the approach taken to establishing or reviewing a guideline in the course of an appeal. The power that Section 29C(3) gives to the Full Court to inform itself as it thinks fit may also be new, but it is not necessary to decide that point.
Apart from these procedural provisions, the Attorney-General’s Second Reading speech on the amendment (Hansard, House of Assembly, Wednesday 29 May 2002, pages 370- 373) indicates that another reason for the legislation was to provide statutory support for the giving of guideline judgments, in light of some doubts cast on the practice, or at least on some aspects of it, by the High Court decision in Wong.
Should the Court establish sentencing guidelines?
Ms Davison, counsel for the Director, the Solicitor-General as counsel for the Attorney-General, and Mr Barrett as counsel for Offenders Aid and Rehabilitation Service of SA Inc., each urged the Court to establish sentencing guidelines for the offences in question. They differed as to the reasons for doing so, and to some extent as to the form that the sentencing guideline should take.
Ms Davison submitted that a survey of decisions in individual cases indicated an undesirable level of inconsistency of approach, and that an appropriately expressed guideline would achieve greater consistency. She did not submit that the general level of sentencing needed to be increased. She suggested that the Court could identify an “ordinary case”, which was a case in which there was a plea of guilty, an offender of previously good character or with few prior convictions, death or injury to one person, and driving that was dangerous either in its manner or having regard to the speed. She suggested that the Court should identify the appropriate sentence for an ordinary case, and that sentencing courts would then sentence by reference to that standard, imposing heavier sentences in more serious cases and lesser sentences in less serious cases.
At the conclusion of submissions the Court invited those counsel who proposed the adoption of a sentencing guideline to submit an outline of the proposed guideline. The guideline submitted by the Director is somewhat different from the submission put in argument, although we make no criticism on that account. It suggests that the starting point for an offence “of low moral culpability” should be in the range of three years, and for an offence with “a high level of moral culpability”, which means that one or more of identified aggravating features were present, should be a sentence in the range of five years. The draft guideline also states that suspension of a term of imprisonment could not be the norm, and that good reason to suspend is unlikely to be found in routine aspects of the offence or of the offender’s circumstances.
The Solicitor-General submitted that the Court should publish a guideline that would have the effect of increasing sentences generally for the offences in question. He submitted that a significant number of sentences that had been imposed in the past were inadequate. He argued that sentencing judges were failing to reflect sufficiently circumstances of aggravation. He argued that a survey of sentencing remarks indicated inappropriate compression, by which he meant too many cases at about the same level of sentence, even though, according to his submission, some of those cases had warranted heavier sentences.
We mention here that over the last few years there have been barely any applications by the Director for leave to appeal against sentences imposed for causing death by dangerous driving, suggesting that the Director takes a different view of the matter.
The Solicitor-General also made the point that statistics before the Court suggested that in the 15 year to 19 year age group, an alarmingly high proportion of all deaths (about 75%) were attributable to vehicle accidents, whereas for the population as a whole the proportion of all deaths attributable to vehicle accidents was about 2%. This suggested, he argued, that it was so important to deter young people from driving dangerously that in relation to the offence of causing death by dangerous driving the Court should depart from the usual practice of treating youth or immaturity as a mitigating factor, and should treat it as not a matter of mitigation at all, or give it much less weight than courts tended to give youth or immaturity in relation to other offences. However, the statistical significance of that figure was not explained, nor did we have other information that enabled us to make a confident assessment of its significance, or of the appropriate response to it. The Solicitor-General submitted a draft guideline that proposed that a young offender of substantially good character who pleaded guilty to causing death by dangerous driving of one person, and who was genuinely remorseful, would ordinarily be sentenced to imprisonment unless there was good reason to do otherwise. If the offence involved a high degree of recklessness the sentence would ordinarily be not less than three years. He identified a number of aggravating factors. His guideline suggested a distinction between offenders who drove with a high degree of recklessness or who failed to stop after an accident, and offenders who merely made an unacceptable error of judgment or were guilty of gross inattention. The former group should attract higher sentences. He proposed in the alternative a “non-numerical guideline” which emphasised, for sentencing purposes, the need to place substantial weight on the degree of culpability of the offender, as evidenced by the manner of driving. That is a matter on which, in our experience, sentencing judges regularly place substantial weight.
Mr Barrett, counsel for Offenders Aid and Rehabilitation Service of SA Inc., supported the publication of a guideline, but argued that the guideline should not be directed towards increasing sentences, but rather towards emphasising the importance, for sentencing purposes, of participation by the offender in processes or procedures that emphasise principles of restorative justice.
It is worth mentioning that the table tendered by Mr Barrett as part of his submissions referred to sentences imposed in this State for the offence of causing death by dangerous driving from 1992 to 2002. The table indicates that the average length of the sentence of imprisonment imposed for this offence between 1992 and 2002 has not varied much, with the exception of the year 1997 when it was a lot higher. That was a year in which only two sentences of imprisonment (not suspended) were imposed. A reading of the sentencing remarks in those two cases indicates that they were unusually serious cases.
This table demonstrates how statistics can mislead and it demonstrates also the significance of the years chosen for the purpose of such an exercise. One newspaper, on the day this case was heard, claimed that statistics demonstrated that between 1997 and 2002 the average term of imprisonment had “shortened despite community outrage”. That article is based on a comparison that took 1997 as the starting point, whereas the table tendered by Mr Barrett shows that that year was an exceptional year. Taking 1997 as the starting point gives a misleading impression.
The article referred to community outrage. In some cases, outrage may be expressed by the family of a victim, or by a victim. We understand the grief of those who have lost members of their family. The punishment of the person responsible for that loss can never be compensation for such loss. The grief and outrage expressed by victims and those close to them does not translate into “community outrage”. Unless the community is informed of the material placed before the sentencing judge, it is not possible to arrive at an informed conclusion about any particular case.
Mr Barrett argued that there was no evidence before the Court supporting an increase in the level of punishment, because there was no evidence that the incidence of the offence was increasing.
Ms Layton QC, counsel for Victim Support Service, ultimately did not oppose the publication of a guideline, but submitted that it should emphasise the need for sentencing courts to recognise more clearly and to acknowledge more clearly the impact and effects of the offence on victims, and one that would emphasise more heavily, for sentencing purposes, the value of restorative justice practices. The draft guideline that she submitted proposed that a particular mitigating factor would be conduct demonstrating “genuine remorse and acceptance of guilt” by the preparedness of the offender to meet with the victim and family of the victim if they so wished, to offer an apology; by the preparedness to engage in community service by way of reparation, and by the preparedness to undergo treatment for aggressive tendencies, and for drug and alcohol abuse.

A number of counsel submitted that a sentencing guideline would help the public understand how the court approached sentencing for this offence, and for that reason would enhance public confidence in the administration of justice.
We will return to these submissions, but at this stage it is convenient to make some points about them. In our view the sentencing decisions brought to our attention do not indicate that there is any significant uncertainty about the relevant sentencing principles, or about their application to offending of the kind in question. Nor was it demonstrated that the relevant principles were not being consistently applied by sentencing courts. We have considered carefully Ms Davisons’s analysis of the sentencing remarks. It may be that there is a little more “bunching” of sentences for causing death by dangerous driving around the three year mark than one would expect. On the other hand, although we have not submitted every case to a close analysis, we do not get the impression that the sentencing remarks indicate a wrong approach, or inconsistent application of the principles. It is true that in the period surveyed there is no sentence of imprisonment in excess of seven years (the maximum for a first offence is ten years imprisonment), but once again we are not satisfied that it is evident that cases that have come before the courts in the period in question should have attracted sentences above that level. Of course, if the general level of sentencing were to be increased, as a result of the guideline, one would then expect to find some sentences in excess of seven years. It is worth recording again that applications by the Director for leave to appeal against sentences for causing death by dangerous driving have been quite rare. We are not satisfied that the pattern of sentencing that is disclosed by the cases in the period surveyed discloses a failure to differentiate adequately between cases warranting heavy penalties and cases warranting lesser penalties.
The material put before the Court
We have considered the factual material placed before the Court, which was both voluminous and wide-ranging. We have not considered it in complete detail. Nor did counsel submit it to a detailed scrutiny. We have done our best to make a general assessment of it.
We note the opinion expressed by Ms Wundersitz in an Information Bulletin published by the Office of Crime Statistics, entitled “Cause Death by Dangerous Driving” (Information Bulletin No. 23 November 2001) that:
“…The number of cause death by dangerous driving offences recorded by police in South Australia over the past 13 years have remained extremely small and have fluctuated considerably from one year to another.”
We note also her conclusion from a comparison with practice in New South Wales:
“While the small numbers recorded for South Australia make comparisons with New South Wales difficult, overall from 1996 to 1999, only one of the 35 finalised cases in South Australia did not involve any form of imprisonment (either direct or indirect). By comparison, in NSW, 20.8% of cases received a penalty other than imprisonment, suspended imprisonment, home detention or periodic detention. There is also some indication that the length of imprisonment in South Australia was no less than that imposed in New South Wales, even after the judgement issued in New South Wales in late 1998.”
We note also the table exhibited to the affidavit of Mr Llewellyn-Jones, an affidavit filed by the Offenders Aid and Rehabilitation Service of SA Inc., to which we have already referred. As we said earlier, this table indicates that between 1992 and 2002 the average jail sentence imposed for the offence of causing death by dangerous driving has been fairly steady, the exceptional year being 1997.
We have also taken into account the opinion expressed by Professor McLean, who is an expert on the causes of road accidents. He makes the point that there are a number of factors that contribute to the occurrence of road accidents, including fatal accidents. Our own experience indicates that road design or construction and the use of traffic control devices are important considerations, although as Professor McLean says, road conditions are rarely the sole cause of an accident. Professor McLean considers in particular matters that he classifies under the heading of driver performance (broadly, the ability or skill of the driver), and matters that he classifies as driver behavior (referring to choices made by a particular driver, such as a decision to exceed the speed limit). Driver performance may be affected by driver behaviour. For example, making the choice to consume alcohol and then drive, knowing that the alcohol will affect the driver’s performance. Some matters of particular significance in relation to road accidents that he identifies are speed, the consumption of alcohol and fatigue. Above 60km per hour, the risk of involvement in a casualty crash approximately doubles with each 5km per hour increase in speed. The way in which alcohol impairs driver performance is well known.
We draw the following conclusions from the material. First, over the last ten years the number of road fatalities has not been increasing. Nor is the occurrence of the offence of causing death by dangerous driving increasing. That is not any cause for complacency. We are all well aware of the significant social cost and the human tragedy caused by road accidents, and by fatal accidents in particular. One argument for increasing the level of sentencing for a given offence is that the incidence of the offence is increasing, but that cannot be said here. When one considers the range of factors that contribute to fatal accidents, one becomes all the more conscious of the fact that the punishment of offenders through the courts is only one of a range of appropriate responses to the problem of road fatalities. The courts must play their part, but it is a mistake to assume that increasing the severity of sentences is the answer to the problem. In the light of the information before us we are not satisfied that increasing the level of sentences would further reduce the incidence of this offence. Driver performance and driver behaviour are obviously significant factors, but whether an increased level of sentences would have any significant effect is doubtful. As we have already said, our survey of sentencing remarks has not satisfied us that they disclose uncertainty about the relevant sentencing principles, a failure to apply them, or inconsistency in their application as distinct from differing outcomes that may be attributable to the assessment made by sentencing judges of the weight to be given to particular factors in particular cases. We agree that the number of road fatalities involving young people is cause for great concern, but this is not a new problem. We do not pretend to be experts in assessing these matters but it seems to us that the likely explanation is a combination of driver inexperience, immaturity, attitudes to alcohol and the belief, that one tends to encounter with young people, that “it cannot happen to me”. Bearing in mind those matters and the consequences of imprisoning for a substantial period of time a young person, who will often have good prospects of rehabilitation, we are not satisfied that the appropriate response to this factor is to treat young offenders more harshly than has been the practice in the past.
In The Queen v Johnson (1985) 38 SASR 582 the Crown Prosecutor argued that the prevailing standards of punishment for causing death by dangerous driving were too lenient, and referred to community concern about the number of road fatalities and in particular to the “deadly combination” of youth, speed, alcohol and country roads. We know that the community remains justifiably concerned about the number of road fatalities, and about the particular matters referred to above. The response of King CJ to that submission remains apposite. He said at 584:
“The Judges of this Court, like all sensible citizens, must share the concern expressed by the Crown Prosecutor on behalf of the government at the number of deaths occurring on the roads and at the continued prevalence of dangerous driving as a cause of such deaths. The penalties imposed by the Courts must be such, within the limits imposed by reason and considerations of justice, as to operate as a deterrent to those who might be inclined to engage in dangerous driving. We must take care, however, not to allow the continuing road toll to produce knee jerk reactions. A proposal to increase the level of prevailing punishments must be judged calmly and dispassionately. It is necessary to assess what, if any, capacity such an increase would have, to deter possible offenders, and to weigh that capacity, if any, against any negative effects which might flow from the increase in penalties. The need to satisfy public feeling and to calm public outrage is not to be ignored, but courts must guard against permitting the course of justice to be distorted by the influence of attitudes which are based upon emotion rather than reason.”
He added at 585 – 586:
“Deterrence undoubtedly ought to be a major consideration in determining the proper level of penalties for this offence. Many drivers are deterred by the penalties which they might incur for misconduct in the way of driving. The courts must therefore maintain sentencing standards at levels which will operate as a realistic deterrent. Deterrence is not, however, the only value involved in the sentencing process. The sentence should not exceed that which is proportionate to the moral turpitude involved in the crime having regard both to the objective character of the wrongdoing and the qualities of the individual offender. The prevalence of the crime amongst the young should not lead us to ignore youthful immaturity as a mitigating factor. The impact of a term of imprisonment, particularly a long term, upon the individual who must at some stage re-enter society, and the needs of rehabilitation, must always be considered. The desire to deter must not be given inordinate scope to the exclusion of other values with the result that sentencing becomes an exercise in pointless and even counter-productive severity.”
Should the Court publish a sentencing guideline?
Our view is that no case has been made for the Court establishing a sentencing guideline with a view to increasing the level of punishment for the offences in question.
In that connection, it is necessary to emphasise that the function of a sentencing court is to arrive at an appropriate sentence having regard to the maximum penalty (ten years imprisonment for a first offence of causing death by dangerous driving) and having regard to all relevant circumstances. The court is not fixing the punishment to be imposed for the taking of a life. The driver of a motor car might kill a person in circumstances amounting to murder (attracting a maximum punishment of imprisonment for life); amounting to manslaughter (attracting the same maximum punishment but almost always a lesser punishment than would be imposed for murder); causing death by dangerous driving (attracting a maximum punishment of ten years imprisonment for a first offence); or amounting only to the offence of driving without due care (attracting a maximum punishment of a fine not exceeding $1250 and disqualification from holding or obtaining a driving licence for a period fixed by the court). The differences in the maximum penalties reflect differences in moral culpability on the part of the offender, as well as Parliament’s assessment of other factors relevant to the offence. The court in fixing sentence is not simply determining the punishment appropriate for the taking of a life.
We make this point because we understand the sentiment expressed by the family of a person killed by the driver of a motor vehicle, that they have suffered the loss of the life of a family member. The value of that life, and its impact on the family of the victim, are not affected by the category into which the offence of the driver is placed, or by the circumstances of the offender. But the punishment of the offender must be affected by those matters.
We add that the court is also not concerned, in sentencing an offender, to grapple directly with the question of road safety or the level of road fatalities. Of course these are relevant factors, but the function of the court is to punish an offender according to law, not to regard itself as responsible for dealing with the road toll.
Nor has a case been made for a guideline on the basis that judges are imposing sentences that reflect a failure to appreciate or to apply relevant sentencing principles, or on the basis that judges are applying them with inconsistent results. The decisions brought to our attention do indicate some variation, but it is a variation within an acceptable range. It reflects the variations that inevitably occur in the process of sentencing. As to that, we repeat what Doyle CJ said in R v Nemer [2003] SASC 375; (2003) 87 SASR 168 at [6]-[9]:
“The sentence imposed in a particular case should reflect certain broad objectives of sentencing. These do not replace the provisions of the Sentencing Act. They describe in broad terms the main objectives of the various requirements in the Sentencing Act. These objectives are the punishment of the offender or retribution (to reflect society’s disapproval and rejection of the conduct in question); deterrence of the offender from further offending; deterrence of other persons from offending, and rehabilitation or reform (that is, encouraging the offender to reform and to behave in accordance with the law). Sometimes it is said that these are the means by which the court protects the community.
In different cases these considerations will operate in different ways and to differing degrees. As has been said, these considerations are no more than guideposts to the appropriate sentence, and sometimes they point in different directions: Veen v R [No 2] (1988) 164 CLR 465 at 476. In a given case considerations of deterrence might point towards a heavier sentence, while considerations of reform might point towards a lenient sentence. Arriving at a sentence in a particular case involves a balancing of all of the matters identified in the Sentencing Act, and the exercise of a judgment in the light of all relevant matters.
That is why sentencing an offender is not a precise process. There is no sentence that is exactly right in a given case. In any particular case the most that can usually be said is that an appropriate sentence will be within a certain range. Any sentence within that range is appropriate. Different judges, presented with the one case, are likely to arrive at different results within that range. The different results do not indicate that an error has been made, as long as they are within the acceptable range. They reflect the nature of the sentencing process.
This may be disconcerting to some. But it is important that the public understand it.”
It is desirable that reasons for sentence should recognise in specific terms the impact of the offence on the victim and on the victim’s family. This is usually done, and it is a practice that we commend. However, there is no need for a guideline in relation to that.
We agree that the offences in question are particularly appropriate for the use of sentencing options based on the principles of restorative justice. We accept the submission for the Victim Support Service that the family of a victim (and the victim in the case of injury) will often wish to engage in a process that would involve the offender meeting with the family and with the victim, and that would permit and perhaps require demonstrable proof of contrition and remorse, for example, by the offender engaging in community service or undertaking appropriate treatment for aggressive behaviour, or for the abuse of alcohol or drugs. To the extent that appropriate programs are available, it can be expected that sentencing judges will make use of them when appropriate. The thrust of the submission was for a greater emphasis to be put on these matters. That will require appropriate action by the executive government. In a particular case a judge may be able to encourage some of these things to happen. But if greater use is to be made of sentencing options based on principles of restorative justice, it is necessary for the executive government to provide programs and procedures with appropriately qualified staff who have the necessary resources. In some respects legislation may be necessary. It would not be appropriate to give particular emphasis to these matters by way of a guideline judgment, in the present circumstances.
That leaves the question of whether the Court should emphasise the appropriate level of penalty for an ordinary or typical case, and should identify the factors of aggravation that might lead to a higher penalty, and matters of mitigation that might lead to a lesser penalty, with a view to improving community understanding of the process.
We have already said that we do not consider that to do so will help sentencing judges, or will produce greater consistency.
We consider that to act on the submission to this effect would not be appropriate, as a matter of sentencing principle, and would not give the public an accurate picture of the sentencing process.
The ordinary case postulated by Ms Davison for the Director was one with factors that include a plea of guilty, the offender being of good character or with limited prior convictions, death or injury to one person and driving in a manner or at a speed that was dangerous. Ms Layton, for the Victim Support Service, identified the “typical dangerous driver” as one with good character and with no or few prior convictions, causing death or injury to one person and affecting the family of the victim, the victim being a stranger, neither the driver nor the driver’s companions being injured, the driver pleading guilty and expressing remorse. She added that such a typical dangerous driver was frequently a young person. There is an element of common ground here, and we agree that many cases of causing death by dangerous driving and causing bodily harm by dangerous driving fit those descriptions, but in every case there will be other circumstances that must be taken into account. The need to take other circumstances into account limits the value of indicating an appropriate sentence for the “ordinary case” or “typical dangerous driver”. The indication necessarily refers to an incomplete description.
As well, to indicate an expected sentence for a case described in this general fashion invites an approach that departs from the requirement of s 10 of the Sentencing Act to take account of all relevant circumstances in their actual context. It implies that certain circumstances can be assessed and allowed for in advance, and at a high level of generality, and weighted to give an outcome also identified in advance. To do so would be inconsistent with principle, and with the requirements of the Sentencing Act. For example, the fact of a plea of guilty is always a matter to be taken into account in fixing sentence. But the reduction to be made on that account will depend on a number of circumstances. The suggested approach implies that, in some way, the reduction can be assessed in advance.
If that is so, it means that the indicative sentence for the ordinary case or a typical dangerous driver would not really be what it pretends to be. It would not give the public a reliable indication of sentencing practice.
Nor is there any need or any great value in identifying a list of aggravating and mitigating circumstances. We agree with the examples provided to us by counsel of such circumstances. For example, Ms Davison referred to aggravating circumstances as including excessive speed, degree of intoxication or substance abuse, the number of people put at risk, erratic or aggressive driving, competitive driving or showing off, sleep deprivation, some warning having been given to the driver that the driver was driving dangerously, an attempt to escape from the police, failing to stop after an accident and the distance and length of time over which the dangerous driving occurred. Other counsel raised similar matters. But these matters are generally well known, are easily identified, and would not be overlooked by a sentencing judge.

Overall, we consider that the suggested approach of indicating a sentence for the ordinary case, or the typical dangerous driver, and then listing aggravating and mitigating circumstances, is likely to lead to a distracting comparison of the particular case with the ordinary case or typical dangerous driver, and to a matching of aggravating and mitigating factors. It is better to approach the matter directly. The courts have shown that they are doing so appropriately.
We understand the desire to identify a benchmark sentence and the sort of case it applies to. But this will not remove the need for the individual assessment of each case, and for the making of what is always a difficult decision. The circumstances of the offences in question vary too much for the fixing of a benchmark to be wise or helpful. And, we repeat, it has not been shown that we should act as proposed because courts are not observing appropriate standards and need to be given a standard to work from.
We consider that what follows is sufficient by way of guidance and explanation.
The offence of causing death by dangerous driving, and the related offences the subject of the application, are serious offences. The offence of causing death by dangerous driving is particularly serious, because it involves the taking of a life. While not a common offence, or apparently increasing, it contributes to a tally of road fatalities and injuries that cause great financial cost and human cost. The public are rightly concerned about the deaths and injuries that are caused on our roads.
The function of the court is to impose an appropriate sentence for the offence, taking into account the maximum penalty of ten years imprisonment for a first offence. The court does not measure the value of a human life, or regard itself as dealing directly with the road toll. A sentencing court must assess the objective circumstances of the offence, with a view to measuring its seriousness and the culpability of the offender. The court must also take into account the circumstances of the offender. Experience shows that the offender will often be a person of otherwise good character with no significant record of offending, who has killed another person as a result of a significant episode of bad driving, involving more than momentary inattention.
As the practice of sentencing judges shows, a sentence of imprisonment of the order of three years, not suspended, will often be appropriate. It will be appropriate despite the reluctance of a court to imprison a person who has no record of offending, and whose prospects of rehabilitation are relatively good. This reflects the seriousness of the offence, and the fact that it continues to occur.
There will be cases warranting a heavier penalty, and sometimes a much heavier penalty. That will usually be the result of significant circumstances of aggravation, and particularly circumstances linked to the bad driving which is at the heart of this offence.
There will be cases warranting a lesser sentence, or an order suspending a sentence of imprisonment. A lesser sentence will usually reflect a relatively low level of culpability, and often a finding that the death was caused by momentary inattention or carelessness. A suspended sentence will usually reflect significant personal mitigating circumstances.
Our reference to a sentence of three years imprisonment is not an endorsement of that sentence as the right sentence, or as a benchmark. We refer to it because sentencing practice shows that it has often been considered an appropriate sentence. We have not been satisfied that the sentencing patterns of the past reflect an inadequate assessment of the seriousness of the offence or inconsistency of approach.
We simply remind sentencing judges of the need to bear in mind the statutory maximum, and remind them that from time to time there will be cases calling for substantially heavier punishment than a sentence of three years imprisonment.
The application for leave to appeal
We turn now to the Director’s application.
Mr Payne pleaded guilty to causing death by dangerous driving. The District Court judge imposed a sentence of three years imprisonment and set a non-parole period of eighteen months. She disqualified Mr Payne from holding or obtaining a driver’s licence for a period of ten years. In sentencing Mr Payne, she said that but for his plea of guilty, she would have imposed a sentence of three years and nine months imprisonment.
The Director did not challenge the factual findings of the sentencing Judge, but submitted that the sentence was manifestly inadequate and failed to reflect the seriousness of the criminal conduct. As a consequence, adequate sentencing standards were not maintained for this offence.
The deceased, Abigail Ralph, a nine-year-old girl, was the passenger in a motor vehicle driven by her mother in which her eleven-year-old sister was also a passenger.
The collision occurred on Monday, 13 June 2003, shortly after 3.30 in the afternoon at the junction of Main South Road and Blacks Road, O’Halloran Hill. Mr Payne was driving south along Main South Road on his way home from work. Prior to the accident, he had been observed driving at speed and in a manner which was dangerous to other road users.
He was observed by a witness who was travelling south on Main South Road some distance from the collision. The witness was overtaken by the respondent, who was in a Commodore station wagon. She estimated his speed to be in excess of 100 kilometres per hour in an 80 kilometre per hour zone.
Mr Payne’s car approached the junction of Majors Road and Main South Road. The junction is on the western side of Main South Road and is about 120 metres north of the junction of Blacks Road and Main South Road. That junction is on the eastern side of Main South Road. There were vehicles stationary at the intersection. Mr Payne moved to his right into the right-hand lane for vehicles turning right (or west) into Majors Road, but then continued along Main South Road veering to his left and back into the centre of the junction and proceeding through it against a red light. He then continued travelling south along Main South Road in the centre lane, and entered the junction of Blacks Road and Main South Road against a red light. His vehicle collided with the vehicle driven by Mrs Ralph. She was turning to her right from Blacks Road with a view to travelling north on Main South Road. Three other vehicles were also involved in the collision. The deceased, Abigail Ralph, was seated in the rear passenger’s seat and took the full force of the impact. She was taken to hospital and placed on a life support system, but died two days later, never having regained consciousness.
The effect of Abigail’s death on her parents and her sister has been devastating. Her death has also greatly affected her extended family and close friends. The victim impact statements demonstrate how the offence of causing death by dangerous driving can have far reaching and enduring effects. Her family will never forget the events of the day of the accident. In a sense, they relive those events, and will continue to do so. The absence of Abigail is something that they suffer on a daily basis. The victim impact statements speak graphically of the emotional effect the events of 13 June 2003 have had upon the family. The conduct of Mr Payne has resulted in a senseless loss of a young life.
The sentencing Judge found that as Mr Payne approached the junction of Majors Road and South Road he was travelling at a speed of not less than 90 kilometres per hour, that he did not indicate any intention to move into either of the right-hand turning lanes for traffic intending to turn into Majors Road, that he did not apply his brakes or slow down as he approached the junction and, at the time he proceeded through it, the traffic lights for vehicles travelling south along Main South Road were red. Mr Payne’s vehicle then moved into the centre lane travelling towards the junction of Blacks Road and Main South Road. He did not apply the brakes on his vehicle until it was too late to avoid the collision with Mrs Ralph’s vehicle, which had moved out with a line of traffic on Blacks Road, intending to turn right on to Main South Road to travel in a northerly direction. Mr Payne entered this junction against a red light. Mrs Ralph had entered the intersection on a green light.
Mr Payne’s driving was highly irresponsible. He showed no concern for other road users. He drove at a dangerous speed and in a dangerous manner over a significant period of time, entering two junctions against a red light in total disregard of the safety of other road users. It was almost inevitable that his conduct would result in an accident, with a high likelihood that other road users would be killed or injured. He placed numerous people at risk, and ultimately caused a four car collision which resulted in the death of a child. The offending is a serious case of this type of offending. Although it is accepted that Mr Payne did not intend the tragic consequences of his conduct, his driving was so irresponsible that he is morally culpable for what occurred. One can only describe his driving as an appalling disregard of the rules of the road.
Mr Payne has a number of previous convictions. He has a history of breaches of the traffic rules, including instances of exceeding the speed limit and a previous driving incident of driving in an unsafe manner. On 1 December 1998, he exceeded the speed limit in a town, and on 4 December 1998 he again exceeded the speed limit. He was in breach of a condition of his licence. As a consequence, he was disqualified from driving from 4 May 1999 until 3 November 1999. Subsequent to the accident, he again exceeded the speed limit on 24 July 2003. That occurred at a time when he was racing to hospital because of the illness of one of his children. Nevertheless, the incident of speeding which occurred after the accident indicates that Mr Payne has not fully appreciated the seriousness of his past conduct. The sentence of three years imprisonment with a non-parole period of eighteen months was a merciful sentence.
The principles to be applied to applications by the Director of Public Prosecutions for leave to appeal against a sentence are well known. Leave should only be granted to establish some matter of principle, pursuant to which the Court of Criminal Appeal might give guidance to sentencing judges, or if it is necessary for the Court to establish and maintain adequate standards of punishment for a crime, or to correct a sentence which is so disproportionate to the seriousness of the crime as to require intervention so that standards of penalty and public confidence in the administration of justice can be maintained. (See Everett v The Queen (1994) 181 CLR 295 at 299-300; Griffiths v The Queen (1977) 137 CLR 293; R v Osenkowski (1982) 30 SASR 212 at 212-213)).
Mr Edwardson, on behalf of Mr Payne, submitted that the sentence imposed by the learned sentencing Judge was well within the range of sentences set for this offending over recent years. He submitted that, out of 24 sentences imposed for this offence over the past two years, only four other decisions of the court have resulted in a higher sentence. Many of the sentences imposed in the past were for offending which Mr Edwardson submitted was comparable to the offending of the respondent.
The circumstances of each case vary markedly. In cases of death by dangerous driving, the variation of circumstances is almost unlimited. The personal circumstances of offenders are different, and the comparison of one sentence with another is of limited assistance to the court. What is demonstrated by Mr Edwardson’s submission is that the sentence was not outside the range set by other sentences for this offence. No idiosyncratic approach was demonstrated on the part of the sentencing Judge. Nor can it be said that the circumstances of this offence required a sentence outside the range set by other sentences.
Mr Payne pleaded guilty and his sentence was reduced by 20 per cent on account of his plea. It cannot be said that the reduction was inappropriate. There were also a number of mitigating factors personal to Mr Payne. At the time of sentence Mr Payne was married and had five children, the last two being twins who were six months old and born after the accident. He is the main breadwinner. The consequence of a prison sentence has caused great hardship to his family. His wife suffers from severe postnatal depression, and one of the twin children is profoundly deaf. Mr Payne has been under considerable personal pressure and stress. The Judge had regard to the fact that Mr Payne has been deeply affected by the accident. He has difficulty in sleeping. He is truly contrite and has expressed his contrition in writing to Abigail’s family. These were matters to which the sentencing Judge properly had regard in arriving at the sentence.
The offending was serious. The sentence is moderate. It could have been more. But it is not, in the circumstances, so lenient as to indicate that it was wrong. This is not a case in which this Court needs to intervene to set or to identify an appropriate standard of penalty for the offence. As this Court has said in the past, the range of penalty for this offence is a fairly wide one. The Court must always recognise the discretion that sentencing judges have. This is not a case where it can be said that the Court should intervene. It is not a case in which it is appropriate to grant leave to appeal. The fact that the sentence can be described as merciful is not sufficient to require the Court to intervene.
The application should be refused.