R v Peake No. Sccrm-02-129 - [2002] SASC 303

R v PEAKE
[2002] SASC 303
Court of Criminal Appeal: Doyle CJ, Wicks and Besanko JJ

DOYLE CJ. The appellant pleaded guilty in the District Court to two counts of causing death by dangerous driving, contrary to s 19A(1) of the Criminal Law Consolidation Act (“the Act”). The maximum penalty for that offence, by a first offender, is imprisonment for ten years and disqualification from holding or obtaining a driver’s licence for five years or such longer period as the Court orders.
The appellant also pleaded guilty to one count of driving a motor vehicle in a manner dangerous to the public and causing grievous bodily harm, contrary to s 19A(3) of the Act. The maximum penalty for that offence is the same maximum as that just mentioned.
The appellant also pleaded guilty to one count of driving a motor vehicle in a manner dangerous to the public and causing bodily harm, contrary to s 19A(3) of the Act. The maximum penalty for that offence is imprisonment for four years and disqualification for one year or such longer period as the Court orders.
The Judge imposed a single sentence of imprisonment for fifteen months. The Judge fixed a non‑parole period of nine months. But for the plea of guilty, which the Judge said came “at a relatively late stage”, the Judge would have sentenced the appellant to imprisonment for eighteen months. The Judge ordered that the appellant be disqualified from holding or obtaining a driver’s licence for seven years.
The appellant appeals on the ground that the sentence is manifestly excessive.
Facts
The four charges arose from a collision between two motor cars on 14 March 2000.
The appellant was driving a light truck. The engine was fitted with a governor. The truck could not travel faster than 110kph.
The appellant was driving on the Sturt Highway between Truro and Gawler, driving towards Gawler in a westerly direction. The road was straight. There was a single lane for traffic in each direction. There was a broken white line in the centre of the road applicable to westbound traffic. Accordingly, it was permissible for a westbound vehicle to overtake another westbound vehicle. There was an unbroken line applicable to eastbound traffic. The speed limit on the section of road where the collision occurred was 110kph.
At the place where the collision occurred, there was a gentle downward grade for westbound traffic.
While travelling downhill and in a westerly direction, the appellant pulled out to overtake a Camira sedan travelling in the same direction. The Camira was travelling at about 80kph. The appellant was travelling at about 100kph as he began to overtake. The truck was capable of travelling only slightly faster than that. The appellant moved onto the incorrect side of the road. Although the Judge made no finding to this effect, it is likely that the driver of the Camira increased his speed slightly. The front of the appellant’s truck was about level with the front of the Camira, when…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2002] SASC 303
Decision Date: 16 September 2002

CaseChat Overview and Summary

In the matter of R v Peake, the appellant contests the severity of the sentence imposed, arguing it is manifestly excessive. The case concerns a collision between two vehicles on 14 March 2000, where the appellant, driving a light truck with a speed limiter, attempted to overtake a sedan on the Sturt Highway. Despite not exceeding the speed limit, the appellant moved onto the incorrect side of the road, leading to a collision that resulted in two fatalities and two injuries. The appellant's appeal focuses on whether the sentence, which includes imprisonment, is appropriately severe given the circumstances.

The primary legal issue before the court was whether the sentence imposed by the trial judge was excessive. The court had to consider whether the sentence appropriately balanced the gravity of the offences and the tragic consequences against the mitigating factors. Additionally, the court examined the decision not to suspend the sentence of imprisonment, assessing whether the judge exercised his discretion correctly in declining to suspend the sentence.

The court's reasoning centred on the principle that while the appellant's actions were not unlawful in isolation, the decision to overtake under the circumstances was dangerous and led to catastrophic outcomes. The court acknowledged the mitigating factors but emphasised the seriousness of the offences and the need for a deterrent penalty. The court found that the judge exercised his discretion appropriately and that the sentence, while moderate, could have been heavier. The decision not to suspend the sentence was upheld as reasonable, given the gravity of the offences and their consequences.

The final orders of the court were that the appeal against the sentence was dismissed, and the sentence of imprisonment, without suspension, was affirmed. The court's decision underscored the importance of balancing the gravity of the offences with mitigating circumstances in sentencing, and upheld the trial judge's exercise of discretion in not suspending the sentence.

Orders

Orders of the court

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Background

Background to the litigation

The appellant appeals on the ground that the sentence is manifestly excessive.Facts The four charges arose from a collision between two motor cars on 14 March 2000. The appellant was driving a light truck. The engine was fitted with a governor. The truck could not travel faster than 110kph. The appellant was driving on the Sturt Highway between Truro and Gawler, driving towards Gawler in a westerly direction. The road was straight. There was a single lane for traffic in each direction. There was a broken white line in the centre of the road applicable to westbound traffic. Accordingly, it was permissible for a westbound vehicle to overtake another westbound vehicle. There was an unbroken line applicable to eastbound traffic. The speed limit on the section of road where the collision occurred was 110kph. At the place where the collision occurred, there was a gentle downward grade for westbound traffic. While travelling downhill and in a westerly direction, the appellant pulled out to overtake a Camira sedan travelling in the same direction. The Camira was travelling at about 80kph. The appellant was travelling at about 100kph as he began to overtake. The truck was capable of travelling only slightly faster than that. The appellant moved onto the incorrect side of the road. Although the Judge made no finding to this effect, it is likely that the driver of the Camira increased his speed slightly. The front of the appellant’s truck was about level with the front of the Camira, when the appellant observed a Subaru sedan approaching from the west. A passenger in the appellant’s truck had seen the Subaru before the overtaking manoeuvre began. After the passenger saw the Subaru, it may have been temporarily concealed behind a slight rise in the road to the west of where the collision occurred. When the appellant saw the Subaru approaching he applied the brakes, with a view to returning to the correct side of the road. The truck began to skid. It clipped the Camira, which then spun into the oncoming Subaru. The result was that two persons were killed, and two were injured. The appellant was not exceeding the speed limit. It was not unlawful to overtake another vehicle at the place where he attempted to do so. But the appellant should have seen the approaching Subaru sooner than he did. It was there to be seen. His passenger saw it. It is also clear that the length of roadway between where the appellant began to overtake, and the next crest to the west, or the limit of visibility, was not a sufficient distance for the manoeuvre to be undertaken safely. I make that point having regard to the speed at which the Camira was travelling, the maximum speed at which the truck could travel, and the fact that the truck was a little slow to pick up speed. Moreover, on two previous occasions the appellant had attempted to overtake the Camira. He had been travelling behind it for some time. On each of those occasions the Camira had accelerated slightly, and the appellant had been unable to overtake. The appellant should have realised that this might happen again, and that extra care was needed in the circumstances.The Sentence

Evidence

Evidence Before The Court

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Decision

Reasons for decision

DOYLE CJ

But the fact remains that these are serious offences. The tragic consequences must be taken into account. Two lives were lost, and one of the injured persons was seriously injured. The sentence imposed is a moderate one. It could easily have been heavier. The Judge must have taken full account of the mitigating circumstances.The decision not to suspend the sentence I consider that the Judge did not err in declining to suspend the sentence. The offences of causing death by dangerous driving are not at the lower end of seriousness for offences of their kind. It will not often be appropriate to suspend a sentence of imprisonment for causing death by dangerous driving, when the offending is serious. That is not to say that a sentence of imprisonment in such a case can never be suspended. But the offences are serious offences. The offence would usually call for a deterrent penalty. When the circumstances of the offending are serious, the Court must think carefully before it finds good reason to suspend a sentence. In the present case the sentencing Judge had to take into account the fact that there were two further offences, even though all offences arose from one incident. The seriousness of the offending, and the consequences of the offending, were relevant matters to take into account, when deciding whether there was good reason to suspend the sentence having regard to the powerful mitigating circumstances to which I have referred. In considering an attack upon the decision not to suspend the sentence, it has to be recognised that the decision to suspend or not to suspend a sentence of imprisonment involves the exercise of a discretion. The discretion has to be exercised by reference to the circumstances of the case and the circumstances of the offender, but having said that it is a wide discretion. The role of the Court of Criminal Appeal is not to substitute its decision for that of the sentencing judge. The Court will interfere only if the decision is wrong. That is, if there has been an error of law or an error of principle in the manner in which the judge approached the exercise of the discretion, or if the actual decision is one that could not reasonably be made in the circumstances. There was no error of approach in this case. The Court could interfere with the Judge’s decision only if satisfied that it was not reasonably open in the circumstances. There will often be room for debate as to whether a case is an appropriate one for a suspended sentence of imprisonment. The fact that there is room for debate does not indicate error by the judge. It is the inevitable result of the fact that a decision to suspend involves the exercise of a wide discretion. If there is a wide discretion to be exercised, there will necessarily be room for differences of opinion as to the exercise of the discretion in particular cases. If an exercise of the discretion is attacked on appeal on the grounds that the actual exercise is not reasonably open, the Court on appeal cannot interfere if the result falls within an acceptable range of decision‑making.

Ratio Decidendi

Legal Principle Established

Established by: DOYLE CJ

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