R v Pickard

Case [2011] SASCFC 134

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v PICKARD

[2011] SASCFC 134

Judgment of The Court of Criminal Appeal

(The Honourable Justice Gray, The Honourable Justice David and The Honourable Justice Blue)

11 November 2011

CRIMINAL LAW - SENTENCE - RELEVANT FACTORS  - RESPONSE TO CHARGES - DELAY BETWEEN OFFENCE AND SENTENCE

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE  - FRESH EVIDENCE AND EVENTS OCCURRING AFTER SENTENCE

CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - DANGEROUS DRIVING - GENERALLY

Appeal against sentence - appellant drove through a red light at high speed with alcohol and cannabis present in her blood and collided with another motor vehicle - appellant pleaded guilty to two counts of aggravated causing serious harm by dangerous driving contrary to section 19A(3) of the Criminal Law Consolidation Act 1935 (SA) - appellant sentenced to one year, 11 months and 28 days imprisonment - non-parole period of seven months and 28 days fixed - appellant disqualified from holding or obtaining a drivers licence on each count for a period of 10 years, to run concurrently - where, on appeal, appellant tendered affidavits said to contain further and fresh evidence - where there was a delay between the time of the offending and the time of sentencing - where appellant had significantly rehabilitated herself during that time - where appellant had a young child and was breast feeding at the time of sentencing - whether the sentence of imprisonment should have been suspended.

Held (The Court):  Appeal allowed – appellant’s term of imprisonment of one year, 11 months and 28 days with a non-parole period of seven months and 28 days suspended on entry into a three year good behaviour bond – appellant disqualified from holding or obtaining a driver’s licence for a period of 10 years on each count, to run concurrently.

Gray J: The circumstances of delay, the reasons for delay, the impact of arrest, the change of circumstances of the appellant and her positive rehabilitation are significant matters of mitigation - the Judge failed to give those factors proper consideration or weight - the Judge failed to adequately address the effect of the proposed sentence on the appellant's dependent child - accordingly, the Judge failed to have adequate regard to relevant matters when sentencing.

In obiter:  Even if there was no error on the part of the sentencing Judge, it would be appropriate to act on the further evidence – it would be appropriate to receive the further evidence as evidence on the appeal.

Blue J: The Judge erred in failing to take into account the fact or significance of the delay – accordingly, the sentencing discretion miscarried.

In obiter: But for the conclusion that the Judge erred in exercising his discretion whether or not to suspend the sentence, it is doubtful whether the further evidence ought to be received.

Criminal Law Consolidation Act 1935 (SA) s 19A, s 353(4), and s 359; Criminal…

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R v Pickard [2011] SASCFC 134
Case
[2011] SASCFC 134
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CaseChat Overview and Summary

The appeal concerned a sentence imposed on the appellant, Ms Pickard, by a sentencing judge in South Australia. Ms Pickard had pleaded guilty to two counts of aggravated causing serious harm by dangerous driving, stemming from an incident where she drove through a red light at high speed while under the influence of alcohol and cannabis, resulting in a collision that caused severe injuries to two other women. The sentencing judge imposed a term of imprisonment of one year, 11 months, and 28 days, with a non-parole period of seven months and 28 days, and disqualified her from holding a driver's licence for 10 years on each count, to run concurrently. The primary complaint on appeal was that the sentence of imprisonment should have been suspended.

The Full Court of the Supreme Court of South Australia was required to determine whether the sentencing judge erred in refusing to suspend the appellant's sentence of imprisonment. This involved considering whether the sentence imposed was manifestly excessive or unjust, particularly in light of fresh evidence tendered on appeal. The court also had to assess whether the sentencing judge adequately considered factors such as the delay between the commission of the offences and sentencing, the appellant's rehabilitation during that period, and the impact of imprisonment on her young child, who she was breastfeeding at the time of sentencing.

The Court allowed the appeal, finding that the sentencing judge had failed to give proper consideration or weight to significant mitigating factors, including the delay in the proceedings, the appellant's positive rehabilitation, and the impact of her imprisonment on her dependent child. The court also considered the fresh evidence, which included psychiatric reports detailing the appellant's precarious mental health and the potential for severe adverse psychological effects on her child if separated. Applying section 38 of the Sentencing Act, the Court found good reason to suspend the sentence of imprisonment.

Consequently, the Full Court quashed the original sentence and substituted a new one. The appellant was sentenced to one year, 11 months, and 28 days imprisonment, which was suspended upon her entering into a three-year good behaviour bond. The orders disqualifying her from holding or obtaining a driver's licence for 10 years on each count, to run concurrently, were upheld.

Orders

Orders of the court

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Background

Background to the litigation

On the hearing of the appeal, no complaint was made about the order of imprisonment, the fixing of the non-parole period or the orders of disqualification. The complaint was that the sentence of imprisonment should have been suspended. It was also contended that, in any event, having regard to further evidence tendered before this Court, an order suspending the sentence should be made. Background On 22 January 2008, at approximately 9:34 pm, Ms Pickard was driving a BMW coupe when it collided with a vehicle at the intersection of Oaklands Road and Morphett Road, Warradale in the State of South Australia. Immediately prior to the collision, Ms Pickard’s vehicle had overtaken a vehicle travelling west on Oaklands Road approaching the intersection between Oaklands Road and Morphett Road. Ms Pickard’s vehicle entered the intersection against a red light at a speed of between 103 and 111 kilometres per hour.[1] At the same time, a Holden vehicle which had been travelling in an easterly direction on Oaklands Road was turning to travel south on Morphett Road. The Holden entered the intersection with a green light at a speed of about 20 kilometres per hour. The vehicles came into a heavy collision. [1] This is an agreed fact. Evidence before the Court disclosed that there was 0.118 grams of alcohol in 100 millilitres of Ms Pickard’s blood just after midnight. An expert calculated the concentration at the time of the accident to be between 0.08 grams and 0.15 grams of alcohol in 100 millilitres of blood. Cannabis was also detected. In combination, these drugs significantly increased the risk of an accident and markedly reduced Ms Pickard’s capacity for safe driving. On any view, the departure from the ordinary and expected standard of care was gross. Ms Pickard approached the intersection at very high speed, failed to perceive a stop light at a major intersection and did not appreciate that a car was turning in front of her. The driver of the Holden was admitted to hospital. She sustained fractures of both the tibia and fibia of her right leg. Ms Pickard’s passenger suffered severe injuries including a shattered right kidney, a lacerated liver, a damaged spleen, fractured ribs, a lung contusion and multiple fractures of the spine which required fusion and pinning. Her injuries required extensive treatment. In both cases there will be permanent and significant disabilities and both women have been profoundly affected, physically and mentally. The maximum penalty for the offence of aggravated causing serious harm by dangerous driving is life imprisonment and a minimum licence disqualification of ten years.[2] [2] Section 19A(3) of the Criminal Law Consolidation Act 1935 (SA) is in the following terms: (3)A person who—(a) drives a vehicle or operates a vessel in a culpably negligent manner, recklessly, or at a speed or in a manner dangerous to the public; and(b)by that culpable negligence, recklessness or other conduct, causes harm to another,is guilty of an indictable offence.Maximum penalty: (a)where a motor vehicle or motor vessel was used in the commission of the offence and serious harm was caused to a person—(i) for a first offence that is a basic offence—imprisonment for 15 years and, in the case of an offence involving the use of a motor vehicle, disqualification from holding or obtaining a driver's licence for 10 years or such longer period as the court orders;(ii) for a first offence that is an aggravated offence or for any subsequent offence—imprisonment for life and, in the case of an offence involving the use of a motor vehicle, disqualification from holding or obtaining a driver's licence for 10 years or such longer period as the court orders;(b)where a motor vehicle or motor vessel was used in the commission of the offence but serious harm was not caused to any person—(i) for a first offence that is a basic offence—imprisonment for 5 years and, in the case of an offence involving the use of a motor vehicle, disqualification from holding or obtaining a driver's licence for 1 year or such longer period as the court orders;(ii) for a first offence that is an aggravated offence or for any subsequent offence—imprisonment for 7 years and, in the case of an offence involving the use of a motor vehicle, disqualification from holding or obtaining a driver's licence for 3 years or such longer period as the court orders;(c)where neither a motor vehicle nor motor vessel was used in the commission of the offence—imprisonment for 5 years.

Evidence

Evidence Before The Court

In these circumstances, this Court is to reconsider the sentence to be imposed on Ms Pickard. The Court’s powers are contained in section 353(4) of the Criminal Law Consolidation Act. Further Evidence On the hearing of the appeal, as earlier mentioned, Ms Pickard tendered affidavits said to contain further evidence. Annexed to one of those affidavits was a psychiatric report of Craig Raeside. That report contains the opinion that separation of the child from Ms Pickard, his primary caregiver, would be extremely stressful and may produce long term adverse psychological difficulties to the child. Dr Raeside added that such difficulties were likely to be more severe if Ms Pickard’s child was a year older. Further, the affidavit evidence establishes that the child has had little contact with his mother and that the previous regime of frequent breast feeding was interrupted by Ms Pickard’s imprisonment and that in particular, breast feeding was replaced by bottle feeding from expressed milk while Ms Pickard was in custody. Dr Raeside was of the view that Ms Pickard’s mental health is “quite precarious at present”. Following examination, Dr Raeside formed the opinion that Ms Pickard exhibited symptoms of significant depression and anxiety, secondary to her current stressful situation. Dr Raeside considered that should Ms Pickard be obliged to serve out the sentence imposed, he would “expect her mood and anxiety to worsen significantly and [Ms Pickard] would certainly require medical and even psychiatric review necessitating antidepressant medication. She may well become suicidal again and might require inpatient psychiatric hospitalisation”. The Director accepted that if error were found on the part of the sentencing Judge, it is appropriate for the Court to have regard to this further evidence without restriction in the resentencing process. However, even if I had not concluded that there was error on the part of the sentencing Judge, I consider that it would be appropriate to act on the further evidence. As set out below, the tests discussed in the authorities concerning the reception of further material on appeal, have been met. As earlier mentioned, pursuant to provisions of the Criminal Law Consolidation Act, this Court has the power to set aside a sentence on appeal and to resentence the offender. Section 353(4) provides:[11][11] Criminal Law Consolidation Act 1935 (SA) section 353(4). (4) Subject to subsection (5), on an appeal against sentence, the Full Court must—(a) if it thinks that a different sentence should have been passed—(i)quash the sentence passed at the trial and substitute such other sentence as the Court thinks ought to have been passed (whether more or less severe); or(ii)quash the sentence passed at the trial and remit the matter to the court of trial for resentencing; or(b) in any other case—dismiss the appeal.Section 359 relevantly provides:[12][12] Criminal Law Consolidation Act 1935 (SA) section 359.For the purposes of this Act, the Full Court may, if it thinks it necessary or expedient in the interests of justice—…(b) order any witnesses who would have been compellable witnesses at the trial to attend and be examined before the Court, whether they were or were not called at the trial, or order the examination of any such witnesses to be conducted in the manner provided by rules of court before any judge of the Supreme Court or before any officer of the Supreme Court or justice of the peace or other person appointed by the Full Court for the purpose, and allow the admission of any depositions so taken as evidence before the Full Court; and(c) receive the evidence, if tendered, of any witness (including the appellant) who is a competent but not compellable witness and, if the appellant consents, of the husband or wife of the appellant in cases where the evidence of the husband or wife could not have been given at the trial except with such consent; and…(f) exercise in relation to the proceedings of the Court any other powers which may for the time being be exercised by the Supreme Court on appeals or applications in civil matters; and… but in no case shall any sentence be increased by reason of, or in consideration of, any evidence that was not given at the trial.

Decision

Reasons for decision

The further evidence also establishes that there is a high probability that Ms Pickard will suffer from a psychiatric illness if she is to serve out her sentence of imprisonment. It would appear that this will result in part from her experience in custody in Western Australia, her anxiety and fears from being further separated from her child and of the consequences of such a further separation. I understand her precarious medical state to be directly related to her anxiety concerning the possible separation from her child. Conclusion Having regard to all relevant material, I am of the opinion that it is appropriate that Ms Pickard be imprisoned for a term of one year, 11 months and 28 days with a non-parole period of seven months and 28 days. The Court’s discretion to suspend a term of imprisonment is to be found in section 38 of the Sentencing Act, which relevantly provides:Suspension of imprisonment on defendant entering into bond(1)Where a court has imposed a sentence of imprisonment upon a defendant, the court may, if it thinks that good reason exists for doing so, suspend the sentence on condition that the defendant enter into a bond—(a) to be of good behaviour; and(b) to comply with the other conditions (if any) of the bond. I consider that good reason exists to suspend the sentence. I would do so on Ms Pickard’s entry into a three year good behaviour bond. In reaching this conclusion, I have considered all of the matters addressed above, including the time spent in custody and on home detention bail. I consider the time in custody to have been a salutary lesson to the defendant. I consider that the orders disqualifying the appellant from holding or obtaining a driver’s licence for two concurrent periods of 10 years are appropriate. DAVID J: I would allow the appeal because of the delay in prosecuting the offences and the change of circumstances during the period of delay as set out in the judgments of Gray and Blue JJ. I agree with their remarks on that topic and the sentence they would impose on resentencing. I have nothing further to add. I indicate, however, that I have severe reservations on the ground of further evidence being introduced as to the effect of imprisonment on her child and the alleged inadequacies of accommodating that child in custody. However, it is unnecessary for me to decide that point. BLUE J: The defendant/appellant pleaded guilty in the District Court to two charges of aggravated causing serious harm by dangerous driving.[28][28] Criminal Law Consolidation Act 1935 (SA) s 19A(3). The defendant was sentenced to imprisonment for two years less two days for time spent in custody on remand, with a non-parole period of eight months less two days for time spent in custody on remand, and disqualified from holding or obtaining a driver’s licence for 10 years. The sentencing Judge declined to suspend the sentence of imprisonment. The defendant appeals against the refusal of the sentencing Judge to suspend the sentence of imprisonment.Circumstances of offences

Ratio Decidendi

Legal Principle Established

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