R v Spong

Case [2008] SASC 36

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v SPONG

[2008] SASC 36

Judgment of The Court of Criminal Appeal

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

20 February 2008

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - FACTORS TO BE TAKEN INTO ACCOUNT

Application for permission to appeal against sentence - applicant convicted, after plea of guilty, of causing bodily harm by dangerous driving contrary to section 19A(3) of the Criminal Law Consolidation Act 1935 (SA) - sentenced to a term of imprisonment of 20 months with a non-parole period of 9 months - disqualified from holding or obtaining a driver’s licence for 6 years - sentencing Judge considered that there were two matters of aggravation: the applicant's conduct in the moments preceding the collision, in that he drove with an impatient and aggressive manner, and his conduct immediately after the collision, in that he loudly abused the victim and behaved toward bystanders in a threatening manner - in his sentencing remarks the Judge said that the "sentence will not be suspended, but I will give you the opportunity to show that you can rehabilitate yourself by fixing a non-parole period that is lower than the usual non-parole period that might be fixed" - whether the Judge erred in considering the applicant's conduct before and after the collision as matters of aggravation - whether the Judge erred in considering the question of suspension of sentence before the question of setting a non-parole period, and so impermissibly fixed a lower non-parole period instead of suspending the sentence.

Held: No error in considering suspension before setting non-parole period and (by majority) allowing the appeal - the manner of driving immediately prior to the collision was part of the conduct that constituted the offence, and so was not a matter of aggravation - the applicant's conduct after the collision was not a matter of aggravation - the process followed by the sentencing Judge in considering the non-parole period and whether to suspend the sentence did not involve error - applicant re-sentenced - sentence suspended on the applicant entering into a 3-year good behaviour bond.

Criminal Law Consolidation Act 1935 (SA) s 19A(3); Criminal Law (Sentencing) Act 1988 (SA) s 38, referred to.
Anderson v The Queen (1993) 177 CLR 520; The Queen v Olbrich (1999) 199 CLR 270; Markarian v The Queen (2005) 228 CLR 357; R v Wilton (1981) 28 SASR 362; R v Palliaer (1984) 35 SASR 569; R v P (1993) 111 ALR 541; R v Doecke (1999) 205 LSJS 304; Landers v Police (2002) 131 A Crim R 59; R v Stubberfield [2005] SASC 383; R v Szabo (1994) 36 SASR 89; R v Major (1998) 70 SASR 488, considered.

R v SPONG
[2008] SASC 36

Court of Criminal Appeal:       Bleby, Gray and David JJ

BLEBY J.

Introduction

  1. Mr Spong appeals, pursuant to permission granted…

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R v Spong [2008] SASC 36
Case
[2008] SASC 36
Decision Date

CaseChat Overview and Summary

In the case of R v Spong, the appellant appealed against his sentence for causing bodily harm by dangerous driving, as he believed that the sentencing judge had erred in his considerations. The appellant was convicted after a guilty plea and was sentenced to imprisonment for 20 months, with a non-parole period of 9 months, and was disqualified from holding or obtaining a driver’s licence for 6 years. The sentencing judge considered two matters of aggravation: the appellant’s conduct in the moments preceding the collision, and his conduct immediately after the collision, in that he loudly abused the victim and behaved in a threatening manner towards bystanders. The appellant argued that these factors should not have been considered as matters of aggravation, and that the judge erred in considering the question of suspension of sentence before the question of setting a non-parole period. The court needed to determine whether the judge erred in his considerations, and if the sentence should be suspended.

The court found that the appellant's conduct before and after the collision was not a matter of aggravation, as the manner of driving immediately prior to the collision was part of the conduct that constituted the offence. Additionally, the court held that the process followed by the sentencing judge in considering the non-parole period and whether to suspend the sentence did not involve error. Consequently, the appeal was allowed, and the appellant was re-sentenced. The sentence was suspended on the appellant entering into a 3-year good behaviour bond.

In conclusion, the court held that the appellant's sentence of imprisonment should have been suspended, and that the sentencing judge did not err in his considerations. The appellant was re-sentenced with the sentence being suspended on the condition that he enters into a 3-year good behaviour bond.

Orders

Orders of the court

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Background

Background to the litigation

The penalty for this offence at the time was imprisonment for not more than ten years and disqualification from holding or obtaining a driver’s licence for five years or such longer period as the court orders.The Facts The incident occurred on Saturday 24 April 2004 at 9.15am. Mr Spong was driving a Holden Commodore HSV Clubsport sedan, a very powerful car which he had owned for three weeks. He was driving along Payneham Road in Stepney, towards the city. Traffic was heavy. He was travelling at about 90 km/hour. At the point of collision he was travelling at at least 95 km/h. He had accelerated to try to avoid the oncoming collision. All this took place in a 60 km/h speed zone. He was observed to be driving in an impatient and aggressive manner in trying to get past other vehicles. Having stopped in the right hand lane behind another car at the traffic lights at the intersection of Payneham Road and Nelson Street and Stephen Terrace, he changed lanes to overtake that car on its left and rapidly changed back to the right hand lane to overtake another car travelling in the left hand lane. He admitted to having been frustrated by slow vehicles in front of him, and when he finally saw a way of getting clear, he accelerated rapidly to overtake them. He was then confronted with the victim’s vehicle about to cross the centre line in front of him. The victim was driving his vehicle out of business premises onto Payneham Road, intending to turn right into Payneham Road to proceed away from the city. The front passenger’s side of Mr Spong’s vehicle collided violently with the front driver’s side of the victim’s vehicle. Although the victim was obliged to afford Mr Spong right of way, there was evidence from witnesses that he could have completed the turn into Payneham Road safely, but for the fact that Mr Spong approached him from behind other cars at a greatly excessive speed. The victim suffered extensive injuries which have had lasting effects on him. He was then aged 78. He suffered fractures to both legs, multiple rib fractures, a closed head injury, facial fractures, loss of teeth, vertebral fractures, an injury to his carotid artery, dysphagia, brain injury and consequential strokes, and a resulting heart condition. He was in a coma for two weeks and remained in intensive care for three months, followed by four months in an orthopaedic ward and a further four months of rehabilitation. He continues to suffer from extensive disabilities.The Sentencing Remarks The sentencing Judge considered that Mr Spong’s excessive speed was the real and effective cause of the accident. The Judge rejected submissions that Mr Spong’s speed was contributed to by his driving an unfamiliar car or that he was momentarily distracted by checking his mirrors as he moved from the left hand to the right hand lane of the citybound carriageway. The Judge considered that he was well aware of the power of the vehicle because he had, some 12 days before, been detected travelling at 95 km/h in a 60 km/h zone, in the same vehicle. The Judge concluded that the effective cause of the collision was Mr Spong’s greatly excessive and dangerous speed in the circumstances of the applicable speed limit and of traffic conditions at the time.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

BLEBY J GRAY J (dissent) DAVID J
In my opinion, it has not been demonstrated that the Judge erred in failing to suspend the sentence.Conclusion In all the circumstances I would dismiss the appeal. However, as I am in the minority, and as Mr Spong must be resentenced, I agree that the sentence to be suspended should be as now proposed by Gray J. Introduction This is an appeal against sentence. At issue in this appeal is whether the appellant’s sentence of imprisonment should have been suspended. Issues of aggravation arise for consideration. The appellant was charged with causing bodily harm by dangerous driving contrary to section 19A(3) of the Criminal Law Consolidation Act 1935 (SA).[4] The appellant was convicted following his plea of guilty. He was sentenced to a term of imprisonment of 20 months. A non-parole period of nine months was fixed. He was disqualified from holding or obtaining a driver’s licence for six years.[4] At the time the maximum imprisonment for this offence was a term of imprisonment of 10 years. The circumstances of the offence were that on Saturday 24 April 2004 at 9.15 am, the appellant drove at a speed of 90 kilometres per hour on Payneham Road toward the city in busy traffic. As he travelled toward the city his vehicle moved between lanes overtaking other vehicles. Another driver was leaving business premises on the southern side of Payneham Road and was in the process of turning right to travel away from the city when a collision occurred between his vehicle and the appellant’s vehicle. It appears that a stationary vehicle parked on the southern side of Payneham Road obscured their view of each other. Witnesses expressed the view that, but for the speed of the appellant, the other driver would have executed his manoeuvre without difficulty. The appellant had not consumed any alcohol or drugs. The vehicles collided heavily. The front passenger side of the appellant’s vehicle collided with the front driver’s side of the other vehicle. The other driver, a man aged 78 years, sustained serious injuries. These included head, neck, chest and leg fractures, a brain injury, an injury to the carotid artery, strokes and a heart condition. He was in a coma for two weeks, intensive care for three months, hospitalised for a further four months, followed by four months of rehabilitation. He has been left with long-term disabilities including general weakness and a significant loss of the enjoyment of life. The appellant sustained a fractured sternum. The sentencing Judge concluded:When all is said and done, however, there is no doubt that the effective cause of the collision was your greatly excessive and dangerous speed in the particular circumstances of the applicable speed limit and your driving on that road in busy Saturday morning traffic. The Judge considered that there were two matters of aggravation, which he discussed as follows:I have, however, been concerned about your conduct in the moments preceding the collision and immediately after it; conduct which I consider aggravates your offending.The Judge then continued:It is evident from the statements of numerous witnesses that you were driving in an impatient and aggressive manner, attempting to get past vehicles which were travelling in a normal way and speed in various lanes on the roadway. It is evident from the facts and, indeed, from your own concessions that you were frustrated at this and when you finally saw a way of getting clear, you accelerated away loudly, so much so that the attention of numerous people in the area was attracted.Then, immediately after the accident, you alighted from your car, went over to Mr Tindall’s vehicle and began loudly abusing him. He was obviously then in a very poor state. When bystanders sought to dissuade you from doing that, you behaved towards them in a threatening manner. It has been put that that conduct on your part was likely attributable to shock and I will allow that that may have been in part so, but it also appears to me to have been a continuation of your earlier impatience and aggression.It is apparent that the Judge only partly accepted the appellant’s claim that his state of shock explained his behaviour. The Judge’s finding that the after collision conduct was a matter of aggravation remained. Later in his remarks, when addressing the topic of suspension, the Judge made further reference to the prosecution’s submission concerning “the circumstances of this offending” and to the appellant’s “behaviour at the scene”.

Ratio Decidendi

Legal Principle Established

Established by: BLEBY J, DAVID J

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