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R v Selleck

R v Selleck

Case [2000] SASC 190 17 October 2000

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R v SELLECK
[2000] SASC 190
Court of Criminal Appeal: Olsson, Wicks & Gray JJ
1      OLSSON J                 This is an appeal, by leave, against a sentence imposed upon the appellant by a District Court Judge, consequent upon his conviction, by verdict of a jury, of the offence of causing death by dangerous driving. The appellant was sentenced to imprisonment for two years and three months, with a non-parole period of one year and three months. This sentence was suspended upon entry by the appellant into a bond of $200 to be a good behaviour for a period of two years and six months. The learned District Court Judge also imposed, as portion of the sentence, a monetary fine of $20,000 and allowed six months within which to pay that amount. She further disqualified the appellant from holding or obtaining a driver’s licence for a period of seven years.
2      The notice of appeal raised several issues.
3      First, it was contended that the learned sentencing judge had no power to impose a fine, in addition to imposing the custodial sentence above referred to. Second, it was argued that the sentence imposed was manifestly excessive with respect to the quantum of fine and licence disqualification. Third, the appellant asserted that, even if she had power to impose both a custodial sentence and a fine, the learned sentencing judge fell into error in imposing a substantial fine without first indicating that she had it in contemplation to do so; and affording the appellant an opportunity of adducing evidence and advancing submissions concerning his ability to pay. This was, it is said, particularly so in view of the fact that the effect of the overall sentence was to take away portion of the appellant's livelihood -- he being a heavy vehicle transport driver. Finally, it was complained that, in any event, a licence disqualification of seven years was manifestly excessive, given the inevitable impact of such a disqualification on the appellant in particular.
4      At about 5.50 p.m. on 12 December 1997 a Volvo truck, driven by the appellant, came into collision with a Holden Statesman sedan, driven by Phillip John Jones, at the intersection of Redbanks Road and Barabba Road, Mallala. At the time the truck was towing a tandem trailer equipped with laden grain bins. The appellant was engaged in contract grain carting, in a geographic area with which he was well familiar. The learned sentencing judge noted that he had been working long hours in his trucking business during the grain season.
5      At the time of the accident, the appellant was travelling south on Barabba Road, which had a dirt surface. His entry into the intersection with Redbanks Road was governed by a “Give Way” sign. The evidence indicated that, despite such sign, the Volvo entered the intersection at a speed which was found by the learned sentencing judge to be at least 60 km per hour. That was a speed at which the appellant had little hope…

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.

Continue reading R v Selleck

Details

AGLC: R v Selleck [2000] SASC 190
Case: [2000] SASC 190
Decision Date: 17 October 2000

CaseChat Overview and Summary

In the appeal of R v Selleck, the Court of Criminal Appeal considered the appellant's sentence for causing death by dangerous driving. The appellant was sentenced to imprisonment for two years and three months, with a non-parole period of one year and three months, suspended upon the entry into a bond of $200. The learned sentencing judge also imposed a monetary fine of $20,000 and disqualified the appellant from holding or obtaining a driver’s licence for a period of seven years. The appeal raised several issues, including whether the learned sentencing judge had the power to impose a fine in addition to the custodial sentence, if the sentence imposed was manifestly excessive, and if the learned sentencing judge erred in imposing a substantial fine without indicating it in contemplation and affording the appellant an opportunity of adducing evidence and advancing submissions concerning his ability to pay.

The Court held that the learned sentencing judge had no power to impose a fine in addition to the custodial sentence. The sentencing strategy adopted by the learned sentencing judge was based on the reasoning of Lunn DCJ in The Queen v Bawden, however, the Court disagreed with this reasoning. The Court found that the Criminal Law (Sentencing) Act 1988 constituted an exclusive and comprehensive general legislative framework related to the powers of all courts in sentencing offenders. The Court also found that the common law power to fine for misdemeanours had been replaced by the statutory regime of s 313 of the Criminal Law Consolidation Act 1935 and later by s 18 of the Criminal Law (Sentencing) Act 1988. Therefore, the learned sentencing judge did not have the power to impose a fine in addition to the custodial sentence.

The Court considered the overall sentence afresh and found that the suspended custodial sentence imposed by the learned sentencing judge, taken alone, was appropriate, having regard to the nature of the appellant’s offence. However, the Court considered that the period of licence disqualification ought to be revisited, given that the offence was not deliberate and was towards the low end of the scale. The imposition of the minimum prescribed period of disqualification would work great hardship on the appellant, bearing in mind his business and financial commitments. The Court allowed the appeal and set aside the order for payment of a monetary fine, confirmed the custodial sentence imposed and its suspension, and reduced the order for disqualification to five years.

Orders