R v Singh

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v SINGH
[2011] SASCFC 128
Judgment of The Court of Criminal Appeal
(The Honourable Justice Sulan, The Honourable Justice David and The Honourable Justice Peek)
11 November 2011
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - CULPABLE OR DANGEROUS DRIVING CAUSING DEATH OR BODILY HARM
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
Appeal against sentence – appellant pleaded guilty to one count of causing death by dangerous driving and one count of causing serious harm by dangerous driving – appellant sentenced to four years and nine months’ imprisonment with a non-parole period of three years and two months’ imprisonment – appellant disqualified from holding or obtaining a driver’s licence for 12 years on first charge and five years on second charge, to be served concurrently – whether sentence manifestly excessive.
Discussion of appropriate starting point for offences of death by dangerous driving where excessive speed is involved – consideration of sentencing practice taken by other judges in comparative offences.
Held: Appeal allowed – starting point too high – sentencing Judge failed to have adequate regard to appellant’s prospects of rehabilitation, age, good character and previous driving record.
Appellant re-sentenced pursuant to s 18A to one sentence of two years and six months’ imprisonment with a non-parole period of 15 months’ imprisonment – disqualified from holding or obtaining a driver’s licence for ten years.
Criminal Law (Sentencing) Act 1988 (SA) s 18A, s 32A, referred to.
R v Johnston (1985) 38 SASR 582; R v Payne (2004) 89 SASR 49; R v Spong (2008) 100 SASR 55; R v Thach and R v Chau (2010) 203 A Crim R 510; R v Williscroft & Ors (1975) VR 292; McCarthy v The Queen (2011) 206 A Crim R 131; R v Narayan [2011] SASCFC 61, considered.

R v SINGH
[2011] SASCFC 128
Court of Criminal Appeal: Sulan, David and Peek JJ

SULAN J: The appellant, Vinay Kumar Singh, pleaded guilty to one count of causing death by dangerous driving and one count of causing serious bodily harm by dangerous driving. The maximum penalty for causing death by dangerous driving is 15 years’ imprisonment, and for causing serious harm by dangerous driving 15 years’ imprisonment. Further, a person convicted for each offence is liable to disqualification of his or her driver’s licence for a minimum of ten years.
The appellant was sentenced pursuant to s 18A of the Criminal Law (Sentencing) Act 1988 (SA) (“Sentencing Act”) to four years and nine months’ imprisonment, with a non-parole period of three years and two months’ imprisonment. His driver’s licence was suspended for 12 years on the first charge and five years on the second charge, to be served concurrently. He has appealed against the severity of the sentence on the ground that the sentence is manifestly excessive. In arriving at the sentence, the Judge commenced with a head sentence of six years’ imprisonment, which he reduced to four years and nine months’ imprisonment, having regard to the appellant’s plea of guilty and remorse.
This case raises the question of the appropriate starting point for a sentence for the offence of causing death by dangerous driving and causing bodily harm by dangerous driving when the driving consisted of excessive speed.
Background
The appellant was driving his car along Oaklands Road, Park Holme, towards the intersection of Oaklands and Marion Roads at about 10.30 pm on 12 June 2010. His car was overtaken by another car driven by a man named Janes. The appellant then accelerated in an attempt to catch up with Janes. The sentencing Judge described the appellant’s driving as “ego driven” and “stupid”. The appellant concedes that to be the case.
The cars were involved in what might be described as a race along Oaklands Road, weaving in and out of traffic. Both vehicles slowed down and turned left into Marion Road. The appellant then accelerated at a high rate of speed along Marion Road. Janes slowed down and disengaged. At the time of the accident, the appellant was no longer involved in racing Janes. The reason for the appellant initially speeding was his desire to go faster than Janes’ vehicle. However, it is accepted that, prior to the collision, he was no longer racing Janes.
The agreed facts were that after Janes reduced his speed, the appellant’s car continued and, later, collided with a Mitsubishi sedan which was turning right from the T-intersection of Pildappa Avenue on to Marion Road.
There is no dispute that, prior to the accident, the appellant had been travelling at speeds of approximately 111 to 119 kilometres per hour and, at the time of the collision his vehicle, he having applied his brakes, was travelling between 86 and 96 kilometres per hour.
The sentencing Judge accepted that, at the time of the collision, the appellant was no longer racing but, nevertheless, was travelling at what was described by the Judge as “an intolerably high speed”.
The driver of the Mitsubishi was the deceased, Corey Siemers. His friend, Ms Ashlee Panagis, was in the front passenger’s seat, and another friend was in the rear seat. Ms Panagis sustained serious injuries. Mr Siemers was a young man in the prime of his life. The victim impact statements that were presented to the Court described him in glowing terms. The statements indicate the indescribable grief suffered by his family and friends. Ms Panagis described the physical effect the accident has had upon her. She suffered severe injuries from which she has not fully recovered. She has been affected emotionally. She continues to grieve for her lost friend. The victim impact statements starkly illustrate the tragedy which resulted from the appellant’s conduct.
The appellant was 24 years of age at the time of the collision. He is married with a young stepson. Until the time of the accident, he had led an impeccable life. He had a good employment history and was running his own business, which has been sold as a consequence of these events. He had no previous record for driving offences. He pleaded guilty at the earliest opportunity during the course of the preliminary proceedings. He is genuinely remorseful and contrite. He wrote letters of apology to Mr Siemers’ family and to Ms Panagis.
In his sentencing remarks, the Judge said:
You have been driving since you were 18. You hold an Indian driver’s licence and you are permitted to drive on that licence in this country.
You are genuinely remorseful and contrite. Very early on in the proceedings you indicated that you would be pleading guilty and you ultimately entered your pleas at the earliest opportunity which was reasonably open to you during the course of the preliminary proceedings.
You also made a very early offer to make a face-to-face verbal apology to your victim’s family and I have been provided with two apologies which you have written and which you have also offered to provide to the family.
The Judge, having made remarks about the appellant’s personal circumstances, then dealt with the offending. He described it as objectively reckless and not merely heedless, and referred to it as not being at the lower end of the scale of objective seriousness of crimes of this kind. The Judge referred to general deterrence and observed that sentences of imprisonment are likely to be imposed on first offenders with similar characters as the appellant. The Judge stated that he would impose one sentence pursuant to s 18A of the Sentencing Act, with a starting point of six years’ imprisonment. He reduced that to four years and nine months’ imprisonment, having regard to the pleas of guilty. He found special reasons for departing from the four-fifths rule[1] and imposed a non-parole period of three years and two months’ imprisonment. The appellant submitted that the starting point of six years’ imprisonment is manifestly excessive.
[1] Criminal Law (Sentencing) Act 1988 (SA) s 32A.
Mandatory minimum non-parole periods and proportionality
(1)If a mandatory minimum non-parole period is prescribed in respect of an offence, the period prescribed represents the non-parole period for an offence at the lower end of the range of objective seriousness for offences to which the mandatory minimum non-parole period applies.
(2)In fixing a non-parole period in respect of an offence for which a mandatory minimum non-parole period is prescribed, the court may –
(a) if satisfied that a non-parole period that is longer than the prescribed period is warranted because of any objective or subjective factors affecting the relative seriousness of the offence, fix such longer non-parole period as it thinks fit; or
(b) if satisfied that special reasons exist for fixing a non-parole period that is shorter than the prescribed period, fix such shorter non-parole period as it thinks fit.
(3)In deciding whether special reasons exist for the purposes of subsection (2)(b), the court must have regard to the following matters and only those matters:
(a) the offence was committed in circumstances in which the victim’s conduct or condition substantially mitigated the offender’s conduct;
(b) if the offender pleaded guilty to the charge of the offence – that fact and the circumstances surrounding the plea;
(c) the degree to which the offender has co-operated in the investigation or prosecution of that or any other offence and the circumstance surrounding, and likely consequences of, any such co-operation.
(4)This section applies whether a mandatory minimum non-parole period is prescribed under this Act or some other Act.
The approach to sentencing for causing death by dangerous driving
In R v Johnston,[2] the Attorney-General appealed against the sentence of two years’ imprisonment, with a non-parole period of one year, in the case of a respondent who pleaded guilty to causing death by dangerous driving. The respondent was driving at 145 kilometres per hour in a 110 kilometres per hour zone when he lost control of his car and collided with trees and posts on a median strip. His passenger was killed. The respondent was considerably under the influence of alcohol, and recorded a blood alcohol concentration of .17 grams of alcohol per 100 millilitres of blood, three and a half hours after the accident. His blood level at the time of the accident must have been at least .21 grams of alcohol per 100 millilitres of blood. The Crown appeal was dismissed. In the course of his judgment, King CJ had regard to prevailing standards of punishment as disclosed by statistics which were made available to the Court. He described the driving as a “bad case”. In the course of his judgment, King CJ observed that, although public outrage at offences of the kind with which the Court was dealing was not to be ignored, it is also necessary to consider the effect of sentences on offenders, particularly those who are involved in this type of offending. King CJ, with whom White and Millhouse JJ agreed, observed:[3]
… Few people deliberately cause a serious accident. The typical dangerous driver does not contemplate the possibility of a serious accident or the possibility of causing death or harm to others. It is important therefore that in concentrating our attention on the dreadful consequences of the driving, we do not obscure the chasm which exists between the moral quality of heedless or even reckless conduct which causes death or bodily harm and the moral quality of conduct which deliberately inflicts death or bodily harm. Consequences of conduct are important in the criminal law but they are not the determinant of the moral turpitude involved in the conduct. Comparisons which are sometimes made between the terrible consequences to the victim and the punishment inflicted on the wrongdoer seem to reflect a desire for a reversion to a form of lex talionis [the law of retaliation] rather than an attempt to relate the punishment imposed to the moral quality of the conduct which is punished or to any rational purpose of punishment.
(Bolding is mine)
King CJ dealt with the argument in favour of increasing penalties because of the need for general deterrence. He accepted that deterrence ought to be a major consideration in determining the proper level of penalties for this type of offence. However, he pointed out that it is not the only factor involved in the sentencing process. The Sentencing Act requires a sentencing court to have regard to many competing factors in arriving at an appropriate sentence. General deterrence is but one of those factors. King CJ observed:[4]
The typical dangerous driver is not a hardened criminal. The thought of prison is as frightening to him as it is to almost all citizens who are not hardened offenders. The deterrent to such a person is the threat of imprisonment rather than the duration of the threatened imprisonment. If a driver is not deterred from a dangerous course of driving by the threat of imprisonment for eighteen months or two years, is it realistic to suppose that he will be deterred by the prospect of two and a half or three and a half years imprisonment? The truth is that in the great majority of cases, he simply does not expect to be involved in a serious accident. If he thinks about it at all, it is the prospect of the prison gates clanging behind him rather than the duration of his incarceration which operates as the deterrent. I agree with the Crown Prosecutor that, by reason of the paramount importance of deterrence in this area, suspension of a sentence should not be lightly resorted to. Nevertheless it remains an option for use in appropriate cases. Where it is used, however, the demands of deterrence should ordinarily be reflected in the duration of the licence disqualification.
(Underlining is mine)
[2] (1985) 38 SASR 582.
[3] (1985) 38 SASR 582 at 585.
[4] (1985) 38 SASR 582 at 586.
Discussion
In my view, the sentencing Judge determined a starting point which is too high. I consider that the sentencing Judge failed to have adequate regard to the appellant’s prospects of rehabilitation and to his age, good character and previous good driving record.
The Judge referred to the appellant being genuinely remorseful and contrite. Although he noted that the appellant was a worthwhile member of the community, he did not give sufficient weight to his prospects of rehabilitation. The appellant demonstrated by his early plea, and by his conduct after the accident, that he was not only truly contrite but had embarked on a path to rehabilitation. He realised the severity of his conduct. According to the various character references tendered on his behalf, he had spoken to other young men with whom he had come into contact, telling them of his conduct and warning them of the dangers of driving at high speeds. This demonstrates that, not only was he contrite, but that he recognised the seriousness of his conduct. Further, he accepted that his conduct would result in an immediate custodial sentence. No submission was made to the Judge to consider suspending the sentence.
Although the Judge mentioned the appellant’s age, he failed to give it sufficient weight. A defendant’s previous good character and his prospects of resuming as a worthwhile member of the community are also relevant. It is accepted that, in many cases of causing death and injury by dangerous driving, the offender will be young and often have no prior offending history. But that is not always the case. There are numerous examples of offenders who have poor driving records, and who have convictions for alcohol or drug-related driving offences. The commencing point for these sentences must invariably be higher than for a first offender who is of impeccable character. Further, even though the Court has observed in the past that general deterrence is an important factor when considering dangerous driving offences, the fact of an immediate custodial sentence in itself is a deterrent to drivers who are not prone to other types of criminal conduct.
The imposition of a term of imprisonment upon a young person has a dramatic effect upon that person’s life. This is so, particularly in circumstances where the person has an impeccable record and has been a productive member of the community. It is also important that the courts recognise that, where the prospects of a person’s rehabilitation are high, any sentence should reflect the court’s recognition of that fact. Sentencing, particularly in the case of relatively young offenders, requires that consideration be given to their prospects of rehabilitation. That, of course, does not detract from the need for general deterrence and the punitive aspects of punishment. Nevertheless, there must be a balance.
I consider that the sentencing Judge erred in failing to have sufficient regard to the personal circumstances of the appellant. In determining a starting point for any head sentence, both the offending and personal circumstances of the offender are relevant. Further, the Judge failed to have sufficient regard to the particular circumstances of this offending, namely, that there was no alcohol or drugs involved, there was no police pursuit, and there were no features of aggravation which often accompany this kind of offending. The appellant had been driving for over five years without any convictions for driving offences. He held a current licence. In every respect, other than the excessive speed, he is to be regarded as a responsible person. It is within this context that an appropriate sentence must be imposed.
In R v Payne,[5] the Court (Doyle CJ, Mullighan, Nyland, Sulan and Anderson JJ) referred to the practice of sentencing judges in other cases to demonstrate what sentence will often be appropriate. One of the aims of sentencing courts is to maintain a consistent approach to the sentencing process. Although there are difficulties in making comparisons because each offence and the circumstances of each offender vary, an important part of sentencing review is to have regard to comparative sentences imposed within the jurisdiction for similar offences. In considering other cases, it is possible to discern some common features in the approach to sentencing for offences of this type.
[5] (2004) 89 SASR 49 at [70].
In Payne, the circumstances of the driving were considerably more serious than in the present case. At that time, the maximum penalty for causing death by dangerous driving was 10 years’ imprisonment. Mr Payne had a number of previous convictions for driving offences. He had been disqualified from driving. A number of the previous offences involved excessive speed. On the occasion in question, he had driven his car for a significant distance at high speed in excess of 100 kilometres per hour. He had driven through two junctions against a red light, without regard for other people. When the collision occurred, Mr Payne entered the junction at a speed of not less than 90 kilometres per hour and proceeded through the junction against a red light without slowing down. The collision involved three other vehicles. The deceased was a young girl who was a passenger in one of the cars.
Mr Payne pleaded guilty and was sentenced to three years’ imprisonment with a non-parole period of 18 months, and his licence was disqualified for a period of ten years. The Court considered the sentence was merciful but, nevertheless, dismissed the Crown appeal against sentence. It must be acknowledged that since Payne the maximum sentence for causing death by dangerous driving has been increased by Parliament.

In R v Spong,[6] the circumstances of the offending varied from this case, but there are similarities which are relevant. Mr Spong was charged with causing grievous bodily harm by dangerous driving. The maximum penalty for the offence was 10 years’ imprisonment and disqualification from holding or obtaining a driver’s licence for at least five years. Mr Spong was driving aggressively at a minimum of 95 kilometres per hour along Payneham Road, in heavy traffic, in a 60 kilometres per hour zone when he collided with the victim’s vehicle which was turning right into Payneham Road from premises adjoining that road. Mr Spong went to the victim’s car and commenced to abuse the victim. He acted aggressively to bystanders who sought to dissuade him. The Judge accepted that Mr Spong was truly contrite. He apologised once he realised that the other driver had sustained serious injuries. The 78-year-old victim suffered severe injuries which resulted in him being in a coma for two weeks, being in intensive care for three months, followed by four months in an orthopaedic ward and then followed by four months of rehabilitation. The accident resulted in the victim suffering permanent disabilities. The sentence imposed was 20 months, with a nine month non-parole period. On appeal, that sentence was suspended. In exercising the Court’s discretion to suspend the sentence, Gray J, with whom David J agreed, observed that the case was a serious case of dangerous driving causing bodily harm. However, there was no alcohol or drugs involved. Further, Mr Spong was truly remorseful. He had a settled, stable family life. Gray J referred to the need for general deterrence. In concluding the sentence should be suspended, he said:[7]
The appellant’s personal antecedents and his conduct since the offending demonstrate that there is little need for personal deterrence. There is strong evidence of genuine remorse. The appellant’s stable domestic circumstances speak well for his future. The evidence would suggest that the appellant has substantially advanced his rehabilitation. There is little or no need for personal deterrence in this case. The appellant would appear to have “learnt his lesson”.
[6] (2008) 100 SASR 55.
[7] (2010) 100 SASR 55 at [63].
There was no submission that the head sentence or non-parole period was too low. The statements of the majority supports the approach that factors personal to the defendant must be given weight when balancing them against general deterrence, particularly when there is no alcohol or drugs involved.
In R v Thach and R v Chau,[8] the circumstances of the offending were that at about 7.00 pm Chau and Thach were driving high-powered vehicles in the same direction on Port Wakefield Road at Burton. They were standing side-by-side at a red light intersection, and they then engaged in a race. They reached speeds of approximately 140 kilometres per hour in a 90 kilometre per hour zone. In the course of the race, Thach swerved into the lane in which Chau was travelling. Chau lost control of his vehicle and hit a ditch in the middle of the median strip, causing his vehicle to become airborne. It then collided with the side of a bus on the opposite side of the highway and crashed into a vehicle travelling on the opposite side of the highway. The driver of the vehicle sustained significant injuries. Thach was aware that a collision had occurred. He failed to stop to render assistance.
[8] (2010) 203 A Crim R 510.
The manner of the driving which caused the victim serious and permanent injuries was more culpable than the present case. Further, Thach was charged with leaving an accident scene after causing harm. Initially, both Chau and Thach pleaded not guilty, but Thach eventually entered pleas of guilty to the offences with which he was charged.
Thach was 19 years of age at the time. Chau was 27 years of age. The judge accepted that the offending was out of character, and that it was unlikely that either would offend again in the future. The judge placed some emphasis on the fact that both were to lose their licence for a long period of time.
In respect of Thach, the judge commenced with a sentence of 24 months’ imprisonment, reduced to 12 months, having regard to Thach’s pleas of guilty and cooperation, and set a non-parole period of nine months’ imprisonment. He disqualified Thach from holding or obtaining a driver’s licence for ten years.
As to Chau, the judge fixed a sentence of imprisonment of 12 months, with a non-parole period of nine months. He disqualified Chau from holding or obtaining a driver’s licence for a period of five years. In each case, the sentences were suspended.
White J, with whom Doyle CJ agreed, dismissed the appeal of the Director of Public Prosecutions who had argued that the sentences were manifestly inadequate. White J observed that Mr Thach’s offending was serious. It had a number of aggravating features. It involved deliberate and sustained reckless driving, involving conduct which had an inevitable risk of serious harm being caused to someone. Further, it was aggravated by Mr Thach’s failure to stop after the collision.
White J considered a notional sentence for Thach’s driving should be three years’ imprisonment and, for the offence of failure to render assistance, two years’ imprisonment. He said these were minimum sentences, but could have been more. The total starting point of five years’ imprisonment was reduced to an actual head sentence of 30 months’ imprisonment, with a 20 month non-parole period. White J did not interfere with the decision of the sentencing judge to suspend the sentence. He considered that Thach’s acceptance of responsibility for his conduct, his age and his good prospects of rehabilitation justified suspending the sentence.
Gray J considered that, although it was not inappropriate to utilise s 18A of the Sentencing Act to impose one sentence, this was a case where, in his view, notional sentences should have been identified. In respect of the offence of causing harm by dangerous driving, Gray J would have commenced with a sentence of four years’ imprisonment. For the offence of failing to render assistance, he would have commenced with two years’ imprisonment. He would have reduced that total of six years’ imprisonment to four years and six months’ imprisonment, having regard to the pleas of guilty and cooperation. He determined to fix a non-parole period of one year. He said the circumstances of the case justified this course. In particular, he referred to Thach’s youth, personality, antecedents, prospects of rehabilitation and the acute nature of the double jeopardy to which Thach was exposed. Gray J would have declined to exercise the discretion to suspend the sentence.
Other cases
Counsel for the DPP provided the Court with an historical chart of sentences in the District Court for offences of causing death and causing harm by dangerous driving. The use of comparative sentences is an important method by which sentencing courts maintain consistency and fairness as between different offenders and offences. In R v Williscroft & Ors, Adam and Crockett JJ observed:[9]
So, too, a judgment as to what is appropriate by way of sentence must depend upon knowledge of sentences for the same or similar offences which is derived from personal experience or any other source. To this end the Court asked for and was supplied with some statistical data relating to sentences imposed in this State during the past 18 months for armed robbery of banks, T.A.B. agencies and service stations. …
[9] (1975) VR 292 at 301.
Further, a comparison of sentences and sentencing trends are matters to which a sentencing judge should have regard when considering an appropriate sentence. Adam and Crockett JJ acknowledged that such comparisons will disclose a wide range of penalties.[10]
[10] See also McCarthy v The Queen (2011) 206 A Crim R 131.
I accept that a comparison of sentences in other cases has limitations. No two cases are the same. The circumstances of the offending and the offenders vary markedly from case to case. Great care must be placed upon comparing cases. Nevertheless, some assistance can be obtained by such consideration. In causing death by dangerous driving cases, there are some factors, such as the consumption of alcohol or drugs by the defendant, which is an aggravating feature of the offence. There can be some comparison of the manner of driving and factors, such as speed and traffic conditions.
The material provided by counsel for the Director revealed that in eleven cases, other than this case, in which there were multiple offences of causing death and causing harm by dangerous driving, the starting point in four cases was four years’ imprisonment, or less. In three cases, the starting point was less than six years’ imprisonment. In three cases, it was six years’ imprisonment. In one case, it was seven years’ imprisonment.
In the case of the seven-year starting point, the offending was aggravated and involved a high-speed police pursuit at night, reaching speeds of up to 163 kilometres per hour. The defendant had switched off the lights of the car. He had been consuming methylamphetamine. He was driving unlicensed and he was on parole. He had numerous prior convictions, including two previous high-speed chases.
In the three cases in which the starting point was six years’ imprisonment, two involved the defendant being seriously affected by alcohol. The third case involved excessive speed of up to 140 kilometres per hour on Tapley’s Hill Road. The defendant was a probationary licence holder. Others in the car had asked him to slow down. One of his passengers died and two were injured. Although the starting point was six years’ imprisonment, the head sentence was four years and two months’ imprisonment, with a non-parole period of 21 months.
Resentencing
The appellant was 24 years of age at the time of this offending. In every other respect, he was a responsible citizen. He had no previous convictions. Those who gave references refer to him being a responsible family man and member of the community. He demonstrated considerable remorse. He pleaded guilty at the first opportunity and has accepted full responsibility for his conduct. He has spoken to other young men about his situation and the futility of his conduct. He has warned them of the dangers that exist in driving dangerously.
He is a young man who, as a consequence of this conduct, has lost his business and will have to re-build his life and that of his family when he is released from custody. He has extremely good prospects of rehabilitation and, in my view, is unlikely to re-offend in the future.
I accept that his driving was highly irresponsible and, as a result of it, a young person has lost their life and another has been seriously injured. The seriousness of the defendant’s conduct should not be diminished. In setting the starting point for the head sentence, it should act as a general deterrent to drivers who drive at very excessive speeds on roads where there is a significant risk that other road users will be placed in danger.
In the circumstances of this case, having regard to all the factors, including factors personal to the defendant, I consider a starting point of four years’ imprisonment is appropriate. I would reduce the sentence to two years and six months’ imprisonment on account of the plea of guilty and the remorse shown by the defendant.
I agree with the sentencing Judge that special reasons exist to reduce the non-parole period to less than four-fifths of the head sentence. In R v Narayan,[11] in considering the factors which justified reducing the non-parole period, Doyle CJ said:[12]
I consider that it was open to the Judge to reduce the mandatory period to the extent that he did. Even though the mandatory period represents the non-parole period for an offence of manslaughter at the lower end of the range of objective seriousness, the matters that constituted special reasons demonstrate that Mrs Narayan is a good candidate for an early offer of parole. They suggest that her remorse and contrition are genuine. They indicate that the risk of further offending is minimal. It was open to the Judge to conclude that they supported a reduction in the mandatory period of the order that the Judge made.
Similar factors exist in this case.
[11] [2011] SASCFC 61.
[12] [2011] SASCFC 61 at [51].
There are circumstances, particularly in the case of offenders, where the court considers they have good prospects of rehabilitation, to set lower non-parole periods and leave it to the Parole Board to supervise a prisoner’s parole and when that prisoner should be released.
It is appropriate to fix a relatively low non-parole period of 15 months’ imprisonment
Conclusion
The appeal is allowed. The sentence imposed by the District Court Judge is set aside and, in lieu thereof, the appellant is sentenced for both offences, pursuant to s 18A of the Sentencing Act to one sentence of two years and six months’ imprisonment, with a non-parole period of 15 months’ imprisonment, the sentence and non-parole period to commence on 10 May 2011, when the appellant was taken into custody. The appellant is disqualified from holding or obtaining a driver’s licence for ten years. The suspension will commence upon his release from custody.
DAVID J: I would allow the appeal. In my view the sentence is manifestly excessive. I agree with the reasons of Sulan J and the orders he proposes.
PEEK J. I agree with the orders proposed by Sulan J and with his reasons. I would simply add the observation that the comparative sentence material referred to by Sulan J proved to be of particular importance here.
Some years ago, it was quite the usual practice for those representing an accused person on a sentencing appeal to assemble a detailed chart from the records of the Clerk of Arraigns. Later, the annual records available from the Office of Crime Statistics came to be somewhat more relied upon. More recently, the provision of such material has become much less frequent.
In Markarian v The Queen[13] the High Court rejected an approach to sentencing whereby courts “add and subtract item by item from some apparently subliminally derived figure, passages of time in order to fix the time which an offender must serve in prison.”[14] Their Honours endorsed an approach whereby sentencing courts balance what may be many different and conflicting features and “after weighing all of the relevant factors, reach a conclusion that a particular penalty is the one that should be imposed.”[15]
[13] (2006) 228 CLR 357.
[14] (2006) 228 CLR 357, [39] (Gleeson CJ, Gummow, Hayne and Callinan JJ).
[15] (2006) 228 CLR 357, [37] (Gleeson CJ, Gummow, Hayne and Callinan JJ).
Of course, a necessary element of this process is a good working knowledge of levels of sentence in comparable cases. This is not acquired by some mysterious process akin to osmosis. Judicial experience and research have major parts to play, but so too does the provision of comparative sentence material in particular cases. In Markarian v The Queen,[16] McHugh J emphatically debunked any notion that a sentence was to be pulled out of the air in a subjective or arbitrary way and indicated that comparative sentence material can be of importance in the sentencing process. His Honour stated:[17]
In fact, although a sentencing judge does ultimately select a number, it is not from thin air that the judge selects it. The judicial air is thick with trends, statistics, appellate guidance and, often enough these days, statutory guidance. … A further source of information about the sentences imposed by other judges is the sentencing statistics produced by (in New South Wales) the Judicial Commission. Hulme J referred to these statistics towards the end of his judgment in this case. It is surprising that they did not cause the Court of Criminal Appeal to see that the sentence of eight years that it was imposing was disproportionate. Those statistics showed that the Court was imposing a sentence as high as any that had been imposed during a six year period dealing with 22 cases concerning the same offence, despite the subordinate role played by this offender and the context of a Crown appeal. The failure of the Court to act on those statistics suggests that its belief in the “logic” of its numbers caused it to overlook the significance of the statistics. If so, it shows the dangers lurking in an approach that concentrates on numerical components.
[16] (2006) 228 CLR 357.
[17] (2006) 228 CLR 357, [76]-[79] (McHugh J).
Of course, as Sulan J observes in the present case, such material will have its limitations. As obvious examples only, the usefulness of such material may be limited by: insufficient quantity; by being in the nature of “bare” or “raw” statistics with insufficient detail,[18] by a lack of sufficient overall similarity of objective and/or subjective circumstances to the case under consideration; by a generally inadequate presentation or analysis of the comparative material. It may be that in some types of sentence appeals such material may not be useful at all.
[18] For example, of the type eschewed by the High Court in Wong v The Queen (2001) 207 CLR 584. See also Hili v The Queen; Jones v The Queen [2010] 242 CLR 520, [53]-[55].
However, in the present case the main thrust of the appeal is that the sentence is out of line with the approach usually taken in comparable cases and there is (regrettably) a substantial data base of sentencing decisions in relation to the offences of Cause Death (or Serious Harm) by Dangerous Driving which includes, as a large component, sentences imposed by the District Court rather than the Supreme Court.
Further, the very nature of the offence of Cause Death (or Serious Harm) by Dangerous Driving will often enable some useful comparisons to be made, at least in relation to the objective aspects of the offending, such as the location, speed, manner and duration of driving and the presence or absence of aggravating features such as alcohol or drugs, although such a comparison will constitute only one facet of the required broad approach to all of the features of the case, both objective and subjective.

[2011] SASCFC 128

11 November 2011

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