R v Peake No. Sccrm-02-129

[2002] SASC 207

R v PEAKE
[2002] SASC 207

Leave to Appeal Against Sentence

GRAY J

1. Adam John Peake the applicant pleaded guilty to two counts of causing death by dangerous driving, one count of causing bodily harm by dangerous driving and one count of causing grievous bodily harm by dangerous driving.  The charges arose out of a course of conduct in which he attempted to overtake the vehicle in front of him whilst driving on the Sturt Highway. During the course of the manoeuvre, the applicant’s vehicle collided with that vehicle.  It then spun out of control and hit another vehicle that was travelling in the opposite direction.  That collision caused the deaths and injuries that were the subject of the charges.

2. Prior to sentencing the applicant sought the Crown’s agreement that any term of imprisonment should be suspended.  The Crown however indicated during the course of the negotiations that it would adopt a neutral position regarding the issue of suspension.  During the course of sentencing submissions the Crown said that the issue of suspension was a matter for the judge.

3. The judge imposed a term of imprisonment of 15 months with a non-parole period of nine months.  He said that without the plea of guilty the head sentence would have been 18 months.  The applicant’s licence was suspended for seven years.

4. The applicant now seeks leave to appeal that sentence on the following grounds:

   1.   the sentencing process miscarried by reason of the Crown reneging upon an agreement:

   1.1to not allege that the offence was committed other than as single error of judgment in his decision to overtake immediately before the accident; and

   1.2to not make submissions in opposition to a suspended sentence being imposed.

   2.   the judge erred in failing to give any or any adequate weight to the agreement of the Crown not to oppose a suspended sentence.

   3.   the judge erred in finding that the applicant’s driving “comes in to the most serious form of dangerous driving for this offence; and was “outrageous …driving”

   4.   the sentence imposed was manifestly excessive and ought to have been suspended.

5. Counsel for the applicant said that an agreement had been reached between the Crown and defence counsel as to the basis on which the pleas would proceed.  It was said that the Crown had reneged on that agreement and that the Crown had made submissions that were calculated to encourage the judge to impose an immediate term of imprisonment.

6. Affidavit evidence indicates that a firm agreement had not been reached with the Crown even though a level of understanding may have been achieved.  A review of the transcript demonstrates that the Crown advanced an account of the facts that were appropriate to allow the judge to perform his sentencing duties.  At the time submissions were made, defence counsel made no protest about the position taken by the Crown.  The judge was not informed that the Crown had departed from an agreement or understanding.

7. Before this court counsel for the applicant did not seek to pursue an application to withdraw the pleas or to pursue a disputed fact hearing.  The submission was put that the Crown should be bound to its “bargain” and that in effect an estoppel arose.

8. In Malvaso v The Queen[1] the High Court considered plea bargaining agreements and their effect on the prosecuting party.  Mason CJ, Brennan and Gaudron JJ commented:

   “The Court’s sentencing discretion is to be exercised in the public interest; it cannot be fettered by a plea-bargaining agreement. Nor can such an agreement bind the Attorney-General not to exercise his statutory power to seek leave to appeal and to appeal in any case where, in his opinion, the proper administration of criminal justice requires that power to be exercised. Nevertheless, if an agreement between the prosecuting authorities and an offender has affected the course of proceedings before the sentencing judge and the course of proceedings is relevant to the order which should be made on the Attorney-General’s application for leave to appeal, the Court may have regard to those circumstances in determining whether leave to appeal should be given.”

   [1] (1989) 168 CLR 227 at 233

9. Counsel for the applicant’s submissions with respect to grounds 1 and 2 have no substance.  The Crown adopted a neutral position.  This accorded with the arrangement reached.  No complaint was made at the time of submissions or sentencing. This is the first time such a complaint has been raised.  Leave to appeal on grounds 1 and 2 is refused.

10. It was submitted that the judge viewed the factual circumstances of the offending too seriously.  This complaint raises an arguable issue.  Leave to appeal on grounds 3 and 4 is granted.

    CITATION IN JUDGMENT

    1 (1989) 168 CLR 227 at 233