R v Singh

Case [2011] SASCFC 128

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

  1. 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.

  2. 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…

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R v Singh [2011] SASCFC 128
Case
[2011] SASCFC 128
Decision Date

CaseChat Overview and Summary

The appeal concerned a sentence imposed on the appellant, Mr Singh, who had pleaded guilty to causing death by dangerous driving and causing serious harm by dangerous driving. The appellant was initially sentenced to four years and nine months imprisonment with a non-parole period of three years and two months, and disqualified from holding a driver's licence for 12 years. The appeal was heard by Sulan, David, and Peek JJ of the Supreme Court of South Australia.

The central legal issue before the court was whether the sentence imposed was manifestly excessive, particularly in light of the appellant's circumstances and the nature of the dangerous driving, which involved excessive speed. The court was required to consider the appropriate starting point for sentencing in such cases and to have regard to relevant sentencing practices and principles, including the appellant's prospects of rehabilitation, age, good character, and previous driving record.

The court allowed the appeal, finding that the sentencing judge had failed to adequately consider the appellant's positive attributes and prospects for rehabilitation. The court noted that while the appellant's driving was dangerous and resulted in tragedy, his remorse, early guilty plea, good character, and lack of prior driving offences were significant mitigating factors. Applying the principles of sentencing, which involve balancing various factors and considering comparative case law, the court determined that the initial sentence was too high.

Consequently, the appellant was re-sentenced to two years and six months imprisonment with a non-parole period of 15 months. He was also disqualified from holding or obtaining a driver's licence for ten years. The court emphasised the importance of judicial experience and the use of comparative sentencing material in reaching a just outcome.

Orders

Orders of the court

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Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

PEEK J
It is appropriate to fix a relatively low non-parole period of 15 months’ imprisonmentConclusion 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. 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).

Ratio Decidendi

Legal Principle Established

Established by: PEEK J

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