R v Spong - [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

Mr Spong appeals, pursuant to permission granted by a judge of this Court, against a sentence of imprisonment imposed by a judge of the District Court. Mr Spong pleaded guilty to one count of causing bodily harm by dangerous driving, contrary to s 19A(3) of the Criminal Law Consolidation Act, 1935 (SA). The particulars were that he drove in a manner dangerous to the public and thereby caused grievous bodily harm to the victim.
The Judge fixed a head sentence of 20 months’ imprisonment with a non-parole period of nine months. He declined to suspend the sentence. He ordered that Mr Spong be disqualified from holding or obtaining a driver’s licence for six years.
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.
The Judge considered that some aspects of Mr Spong’s conduct immediately before and after the collision “aggravated” the offending, a matter to which I shall return. The Judge found that Mr Spong was driving in an impatient and aggressive manner, attempting to get past vehicles which were travelling in a normal way and at normal speed in the two citybound lanes on the road. The Judge noted that it was evident from the statements of witnesses and from concessions by Mr Spong that he was frustrated at that, and accelerated when he saw a way of getting clear. His driving attracted the attention of numerous witnesses in the area.
Following the collision, he went over to the victim’s vehicle and began loudly abusing the victim who was obviously then in a very distressed state. When bystanders sought to dissuade him from doing that, he behaved to them also in a threatening manner.
The Judge acknowledged that, after he realised the seriousness of the injuries caused to the victim, Mr Spong’s attitude changed and he endeavoured to help. He subsequently made enquiries through his mother as to the victim’s welfare and the Judge accepted that he was remorseful for his offending. He has suffered from nightmares and flashbacks and has expressed his regret through a psychologist and a letter handed to the prosecution. It would appear that he now has a clear insight into the nature of his offending and its effect on the victim and the victim’s family.
The Judge noted and had regard to all of Mr Spong’s personal circumstances as disclosed in the report of a psychologist. He noted that his antecedent record included minor disorderly offences between 1998 and 2000, being offences which implied a measure of aggressive behaviour on Mr Spong’s part. The Judge considered of greater significance two speeding offences preceding this offence in 2004, one of them already mentioned, which occurred some 12 days before this offence. The other involved travelling on an open highway at 149 km/h.
The Judge noted Mr Spong’s late plea of guilty. He decided that but for the plea of guilty, he would have imposed a sentence of two years imprisonment. On account of the plea, that was reduced to 20 months. Having arrived at that conclusion, the Judge then addressed the question of suspension. He addressed a number of matters to which reference is made below, and concluded:
“In the end, I have not been persuaded to exercise a discretion in your favour. 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. It will be one of nine months.”
Grounds Of Appeal
The grounds on which Mr Spong appeals are that the Judge erred in not suspending the term of imprisonment, that the sentence was manifestly excessive, and that the Judge erred in principle in considering the question of suspension after the imposition of a sentence of imprisonment but before imposition of the non-parole period.
On the hearing of the appeal Mr Spong did not argue that the sentence was excessive. The bulk of Mr Spong’s submissions were devoted to the third of those grounds. It is to that ground that I first turn.
The starting point is s 38 of the Criminal Law (Sentencing) Act 1988 (SA). That provides that a court may suspend a sentence of imprisonment “where (the) court has imposed a sentence of imprisonment upon a defendant” and if it thinks that good reason exists for doing so.
It is well settled that when an issue of suspension arises, a judge must first consider the length of the sentence of imprisonment which is appropriate and then consider whether it is appropriate to suspend the sentence.[1] As is apparent from the cases, the reasons for that are several. One is that the proper length of the term of imprisonment should be fixed having regard to relevant factors which go to determine that, and that suspension does not justify a term longer than that appropriate for an immediate sentence.[2] Another reason is that the matters to be considered in determining whether a sentence should be suspended will include some of the matters relevant to a determination of the length of sentence as well as other factors not relevant to such a determination but which concern the offender’s personal circumstances and prospects of rehabilitation. Such circumstances will include the appropriateness of an opportunity for the offender to reform, to reconstruct his or her own life, to make some form of recompense or whether the offender should be afforded the benefit of a merciful sentence. There is also a material risk that some extraneous matters might be considered when declining to suspend the sentence.
[1] R v Wilton (1981) 28 SASR 362 at 367; R v Palliaer (1984) 35 SASR 569 at 571; R v P (1993) 111 ALR 541 at 551; R v Doecke (1999) 205 LSJS 304; Landers v Police (2002) 131 A Crim R 59 at [12]–[16]; R v Stubberfield [2005] SASC 383 at [19], [28]-[29].
[2] R v P (1993) 111 ALR 541 at 551.
As the authorities demonstrate, the primary question to determine is whether a term of imprisonment is the only appropriate sentence to impose. Only when that question has been decided, can the question of suspension be addressed. Otherwise there is a risk of imposing a higher sentence as compensation for exercising the discretion in favour of suspending.
In this case, the Judge did determine the appropriate head sentence before venturing upon the question of suspension. The complaint is that he considered suspension before determining the non-parole period. None of the cases suggest that that is a course which must necessarily be followed. That is not surprising as there will be many factors, particularly those personal to the offender, which are relevant both to suspension and to the fixing of a non-parole period. Not least of those is the question of the likelihood of successful rehabilitation and how that might best be achieved.[3] That is not to say that a non-parole period should not be properly proportionate to the gravity of the crime. Likewise with suspension, no matter how favourable the offender’s personal circumstances and prospects of rehabilitation may be, there are some crimes for which a suspended sentence is just inappropriate. The point is that consideration of an appropriate non-parole period is inextricably linked with a consideration of the question of suspension.
[3] See for example, R v Szabo (1994) 36 SASR 89, White J at 98; R v Major (1998) 70 SASR 488, Doyle CJ at 491.
Both, for example, provide an opportunity for supervised rehabilitation. A long period of parole will be appropriate where the sentencing Judge considers in all the circumstances that a custodial sentence of some length should be served, but with a greater than usual opportunity for supervised rehabilitation, assuming observation of the necessary conditions which justify release at the end of the non-parole period. Suspension is a more generous approach, where the Court sets the conditions appropriate for rehabilitation on suspension of the sentence.
There is no reason why those courses should not be considered as possible alternatives by a sentencing judge. In this case, the Judge had obviously decided what he would do before embarking on pronouncing his sentencing remarks. The fact that he discussed the possibility of suspension before settling on a non-parole period merely indicates that he had seriously considered both.
As Mr Heffernan, counsel for the respondent, submitted, it would introduce an air of unreality to the sentencing process if a sentencing judge was required to set a “conditional” non-parole period on the basis that no consideration had yet been given to the question of suspension and then, as a final adjustment, revisit and reduce the non-parole period to reflect a decision not to suspend, coupled with a desire to allow a longer period of supervision on parole.
The sentencing Judge in this case, gave careful consideration to the possible suspension of the sentence he had fixed. He decided, in his discretion, that those factors which are favourable to the question of suspension were best recognised, in this case, by fixing a lower than usual non-parole period. That was an appropriate course to follow and taking that course did not expose the sentencing Judge to the possibility of error. I would reject this ground of appeal.
The Failure To Suspend
In suggesting that the Judge erred in not suspending the sentence Mr Spong complains that there was no articulation in the Judge’s sentencing remarks of the relevant personal matters which were taken into account in declining to suspend.
In his sentencing remarks, the Judge was careful to identify all relevant factors concerning the nature of the offending and all relevant circumstances personal to Mr Spong before fixing the sentence of 20 months imprisonment. It was not necessary to repeat all of those when he came to consider the question of suspension. Mr Spong argues that the only favourable matters mentioned by the Judge in considering the question of suspension, among a list of unfavourable matters, were his remorse and the fact that the accident and its consequences had preyed upon him since. However, the Judge did go further than that in mentioning factors favourable to Mr Spong. He referred to “your personal circumstances, including your age, your contrition and remorse and your prospects of rehabilitation”, which had been stressed by his counsel and the details of which the Judge had earlier recorded. He further observed that he had “considered everything that has been put with respect to suspension”. True it is that most of the remarks of the Judge, when considering suspension, focussed on the offending and matters of aggravation. That is not indicative of any failure to consider the other matters. The Judge was merely at pains to point out, in some greater detail, the reasons why he felt unable to exercise his discretion in favour of suspension. There was no error in doing so.
Although it was not part of Mr Spong’s argument or a ground of appeal, questions did arise as to whether the sentencing Judge erred in not accepting the two submissions made on behalf of Mr Spong. These have been referred to earlier. The first was that he was driving an unfamiliar car and had no real idea of its speed. The second was that he was distracted momentarily by checking his mirrors as he changed lanes.
As to the first, the Judge rejected that because knowledge of his precise speed was of little moment, as he admitted to police that he was aware of the power of the vehicle, and he had, some 12 days before, been detected travelling at 95 km/h in a 60 km/h zone. As to the second, the Judge, while accepting that he may have checked his mirrors, considered that the checking of mirrors would not have mattered but for his excessive and dangerous speed. On the material before the Judge there was good reason to reject those submissions.
A further question arose which was not the subject of a ground of appeal or of a properly prepared argument by either party. It was whether the sentencing process miscarried by virtue of the following remark of the Judge:
I have … been concerned about your conduct in the moments preceding the collision and immediately after it; conduct which I consider aggravates your offending.
The conduct of Mr Spong immediately after the collision was his appallingly belligerent attitude to the victim and to members of the public. If the Judge took into account post-offence conduct as aggravating the offence with which Mr Spong was charged, he erred in doing so. The post-offence conduct could not have any aggravating effect on the conduct constituting the offence. However, those remarks must be read in their context.
Immediately after making that observation the Judge said:
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.
He then referred to the abusive conduct of Mr Spong towards the victim and members of the public. The Judge conceded that that may have been due in part to shock but added, “it also appears to me to have been a continuation of your earlier impatience and aggression” (emphasis added).
Mr Spong was charged with driving in a manner dangerous to the public. The essence of that offence was driving at high speed and changing lanes in reasonably dense traffic so that he was unable to avoid colliding with a car driven by the victim who, for good reason, was apparently unaware of his high-speed approach. The aggravating feature was that he was driving with impatience and aggression, born out of frustration. The frustration was admitted. The impatience and aggression was an obvious inference from the admitted frustration, from the description of Mr Spong’s driving evident from statements of witnesses who saw the driving, and from Mr Spong’s post-offence conduct. It was an inference which the Judge could readily draw beyond reasonable doubt. It was not the post-offence conduct which itself constituted the aggravation. The Judge merely observed that the post-offence conduct was a continuation, and I would add, confirmatory of his impatience and aggression while driving.

In my opinion, impatience and aggression while driving at high speed in suburban traffic are matters that go to aggravation of the offence. Suburban driving in heavy traffic requires patience and courtesy. Impatience and aggression can only cloud the judgment and increase the risk of unlawful conduct and collision.
However, leaving that aside, the post-offence conduct was also conduct which in itself was relevant to sentencing. It affected conclusions as to the genuineness of Mr Spong’s contrition and delay in expressing it in the context of a late plea of guilty. In its context I do not consider that the Judge’s remark constituted a vitiating error in the sentencing process.
In the course of submissions on sentence before the Judge, counsel for the prosecution acknowledged that the question of suspension was “finely balanced” in that it would not be an appealable error if the Judge should suspend or not suspend the sentence. In submissions on the appeal, counsel for the appellant agreed with that submission. If the decision is finely balanced, and I agree that it was, and there is no vitiating error, it is not for this Court to interfere. The decision not to suspend the sentence was one that was plainly open to the sentencing Judge. It was a matter for his discretion. The driving was dangerous and inexcusable. The injuries caused were extensive and serious. Reckless driving of that nature is prevalent and requires deterrent action. It does not matter that some or all members of this Court might have exercised the discretion in Mr Spong’s favour. No error has been demonstrated in the exercise of that discretion and it is therefore not for this Court to interfere with that exercise. As the Judge acknowledged, there were good reasons to ameliorate the harshness of the sentence which the nature of the offending required to be imposed. That was done by fixing a shorter than usual non-parole period.
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.

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”.
The Judge then turned to discuss the appellant’s antecedents:
I turn then to your antecedents, which I note involve three different and relatively minor disorderly offences between 1998 and 2000, but all of which imply a measure of aggressive behaviour on your part. Of more significance are the two speeding offences of 18 January and 11 April 2004. The first of those is the one I have already mentioned where you were travelling at a greatly excessive speed in that same car. You were perhaps fortunate that you were not then charged with a more serious offence. The latter offence involved your travelling on the open highway at 149 km/h. Your counsel explained this as being attributable to some stress you were then under. Neither offence speaks well for your level of regard for your own safety, let alone the safety of other road users.
The Judge then outlined the appellant’s unremarkable home life, his difficulties at school, his work record and his domestic relationship. He noted that the appellant was living with his partner. He had contact with his own child from an earlier relationship as well as his partner’s three young children. The Judge noted the appellant’s remorse and his reluctance to drive since his offending.
The Judge declined to suspend the sentence of imprisonment imposed. He noted the respective submissions as follows:
Your counsel argued that in considering that, I should have regard to your plea, to the submission, which I have not accepted, that your driving can be characterised as reckless and inattentive, and to your personal circumstances, including your age, your contrition and remorse, and your prospects of rehabilitation.
...
[The Director] has submitted that the question of suspension is a finely balanced [one] and, in considering it, the court should take account of your prior offending, particularly your very recent speeding; the circumstances of this offending; the seriousness of the injuries caused; your behaviour at the scene; and your level of remorse in the context of your late plea.
The Judge then concluded:
In the end, I have not been persuaded to exercise a discretion in your favour. 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. It will be one of nine months.
The Appeal
Matters of Aggravation
Circumstances of aggravation may be described as those matters, beyond the objective facts established by jury verdict or a plea of guilty, that suggest that a more substantial penalty than that indicated by the objective facts should be imposed. If the prosecution contend that the role of the offender is more serious than established by the objective facts, it must prove matters of aggravation beyond reasonable doubt.
The approach to be taken to determining disputed facts when sentencing has been addressed by the High Court in Anderson,[5] where Deane, Toohey and Gaudron JJ observed:
If, on a sentencing hearing after a plea of guilty, the Crown wishes to rely on some alleged, but disputed, factual circumstance as aggravating the offence, the ordinary rule is that the onus lies upon the Crown to establish the existence of that circumstance. It is common ground, and rightly so, that the standard of proof which rests upon the Crown in such a case in South Australia is the ordinary criminal standard, namely, beyond reasonable doubt. If the Crown fails to establish the disputed circumstance of aggravation to that standard of proof, the offender must be sentenced on the basis that that circumstance of aggravation has not been shown to exist.
[5] Anderson v The Queen (1993) 177 CLR 520 at 536 (footnotes omitted).
These observations were approved in Olbrich,[6] where Gleeson CJ and Gaudron, Hayne and Callinan JJ summarised the position as follows:
[6] The Queen v Olbrich (1999) 199 CLR 270 at [24]-[25] (footnotes omitted).
Courts of Criminal Appeal in Australia have considered the subject of fact finding for sentencing many times in the last thirty years. Not all of the questions that have been examined in those decisions must be considered now. For present purposes, it is enough to say that we reject the contention that a judge who is not satisfied of some matter urged in a plea on behalf of an offender must, nevertheless, sentence the offender on a basis that accepts the accuracy of that contention unless the prosecution proves the contrary beyond reasonable doubt. The incongruities that would result if this submission were accepted are well illustrated by the present case. The respondent swore that he was a courier but the judge disbelieved him. To require the judge to sentence the respondent on the basis that he was a courier is incongruous.
Much of the discussion of fact finding for the purposes of sentencing addresses questions of onus and standard of proof. References to onus of proof in the context of sentencing would mislead if they were understood as suggesting that some general issue is joined between prosecution and offender in sentencing proceedings; there is no such joinder of issue. Nonetheless, it may be accepted that if the prosecution seeks to have the sentencing judge take a matter into account in passing sentence it will be for the prosecution to bring that matter to the attention of the judge and, if necessary, call evidence about it. Similarly, it will be for the offender who seeks to bring a matter to the attention of the judge to do so and, again, if necessary, call evidence about it. (We say “if necessary” because the calling of evidence would be required only if the asserted fact was controverted or if the judge was not prepared to act on the assertion.)
Kirby J observed:[7]
Like the Court of Appeal in Storey, this Court cannot explore the psychology of judicial decision making when it comes to fact-finding for sentencing purposes. But it can insist that the process engaged in is a vital part of the unconcluded criminal trial. That, as a matter of principle, specifying the facts which justify the sanction is no less important a judicial task than identifying the facts which justify the conviction. And that, if the Crown wishes to rely upon a contested factual circumstance as aggravating an offence, an onus lies on the Crown to establish beyond reasonable doubt the existence of that circumstance. These are established principles. In this Crown appeal, this Court should uphold and apply them.
...
In Australia, upon a plea of guilty, a degree of informality has ordinarily marked sentencing procedures. Usually, an agreed statement of facts, sometimes negotiated between the accused and the prosecution, will be placed before the sentencing judge. Sometimes an amount of material, representing the prosecution brief (or parts of it) will be given to the judge, together with victim impact statements and other documentary material which may not conform to the ordinary rules of evidence. However, sentencing proceedings remain part of the criminal trial. They do not cease to be so upon the conviction of the accused, either following a jury’s verdict or a plea of guilty. In the event that asserted facts are disputed, those facts must be proved or disregarded. It is the duty of the judge to ensure (if there be any doubt) that the accused is aware of all of the material provided to the Court upon which the judge will rely in determining the sentence. Where a fact in that material is contested, it may not be acted upon for sentencing purposes unless it is established. The proof of such a fact must occur in the context of the proceeding concerned, namely an uncompleted criminal trial. It is fundamental that in any such proceeding, without clear statutory authority, the accused person cannot be obliged to prove a fact. The criminal trial process does not cease to be accusatorial after the conviction is recorded and during the proceedings relevant to the determination of the sentence.
...
The accused who stands for sentence once convicted following a plea, is certainly not obliged to disprove matters which would tend to aggravate the seriousness of the circumstances of his or her offence. He or she may seek (where the Crown contests an assertion) to adduce facts aimed at convincing the sentencing judge of circumstances relevant to the mitigation of the offence and thus to the diminution of punishment. But such a prisoner is not required to disprove the opposite. Specifically, the prisoner is not required to disprove circumstances which the Crown asserts (or from which the Court might infer a conclusion) that the case is an aggravated one warranting more serious punishment than would be appropriate if nothing else were known about the offence of which the accused had been convicted except the fact of conviction and the legal ingredients of the offence.
[7] The Queen v Olbrich (1999) 199 CLR 270 at [31], [52], [55] (footnotes omitted).
As earlier observed, the sentencing Judge in the present case had regard to two suggested matters of aggravation – the appellant’s manner of driving leading to the collision, and to his abusive conduct directed toward the other driver following the collision.
It is difficult, having regard to the terms of the indictment, to understand how the manner of driving leading to the collision could be viewed as a matter of aggravation. The indictment alleged dangerous driving. Section 19A(3) distinguishes between, inter alia, speed and dangerous driving. The section provides:
A person who—
(a)drives a vehicle ... 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.
The driving was dangerous because of the appellant’s manner of driving. His speed at the time of the collision was a result of his decision to move through the two lanes of city bound traffic. This involved moving between lanes to overtake vehicles and speed. It was not appropriate to differentiate between the speed and other components of driving.
The conduct of the appellant toward the victim after impact was appalling. There was no occasion for the appellant to abuse the other driver or other persons at the scene. However, as the Judge noted, the appellant was immature. He was also in a state of shock. As earlier observed he had obviously sustained a blow to the chest sufficient to fracture his sternum. These matters may explain the appellant’s conduct. However, more relevantly, these were not matters that aggravated the appellant’s offending.
Even if either matter could be characterised as a matter of aggravation, questions of disputed fact arose on which, as earlier observed, the Crown carried the onus to establish those facts beyond a reasonable doubt. The appellant’s case was that the manner of driving was admitted, but that it was out of frustration rather than aggression. This was not an unreasonable hypothesis. The Director did not attempt to discharge its onus. The appellant’s case on the post-collision abuse was that it occurred in, and was explained by, the appellant’s resultant state of shock. The behaviour did not continue once the appellant realised what had happened. This was a reasonable hypothesis that had not been excluded by the Director. Again, the Director did not attempt to discharge its onus.
It follows that the appellant was sentenced on an incorrect basis. The Judge had regard to extraneous matters when sentencing. As observed in Markarian[8]
As with other discretionary judgments, the inquiry on an appeal against sentence is identified in the well-known passage in the joint reasons of Dixon, Evatt and McTiernan JJ in House v The King, itself an appeal against sentence. Thus is specific error shown? (Has there been some error of principle? Has the sentencer allowed extraneous or irrelevant matters to guide or affect the decision? Have the facts been mistaken? Has the sentencer not taken some material consideration into account?) Or if specific error is not shown, is the result embodied in the order unreasonable or plainly unjust? It is this last kind of error that is usually described, in an offender's appeal, as “manifest excess”, or in a prosecution appeal, as “manifest inadequacy”.
[8] Markarian v The Queen (2005) 228 CLR 357 at [25] (footnotes omitted).
The Power to Suspend
Section 38(1) of the Criminal Law (Sentencing) Act 1988 (SA) provides the a sentencing Judge with power to suspend a sentence of imprisonment. That section provides:
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.
The reach of the power to suspend contained in comparable interstate legislation was considered by the High Court in Dinsdale,[9] when Kirby J, in considering the Sentencing Act 1995 (WA), observed:
In Western Australia, the “starting point” for judicial analysis concerning the availability and suitability of a suspended sentence of imprisonment is the language of ss 39(2) and 76 of the Act. From s 39(2)(f) can be deduced the purpose of Parliament to afford “suspended imprisonment” as an option to be available in an appropriate case. It is there treated as the penultimate punishment in the hierarchy of sentencing options provided, just slightly lower in severity than the imposition of a term of imprisonment to be immediately served. It is to be read with the injunction in s 6(4) restraining the imposition of a sentence of imprisonment and confining it to the punishment of last resort.
From s 76, it may be inferred that suspension of imprisonment is only to be available where, first, the court has concluded that sentence to a term of imprisonment is warranted and where the court imposes that sentence. Moreover, by s 76(1), it is not to be available where the term of imprisonment imposed, in aggregate terms, is more than five years. Within such limitations, the discretion apparently conferred on the court is expressed in very wide language. By s 76(1), a court “may order” suspended imprisonment. By s 76(2), it may not do so unless imprisonment for the term or terms equal to that suspended would, if it were not possible to suspend the sentence, be appropriate “in all the circumstances”. Plainly, s 76(2) is designed to restrain the imposition of an artificial term of imprisonment, inflated with the object of giving an appearance of severe punishment although it is expected that this will not actually be carried into effect.
The common failure of Parliaments to state expressly the criteria for the suspension of a term of imprisonment has led to attempts by the courts to explain the considerations to which weight should be given and the approach that should be adopted. The starting point, given emphasis by the terms of s 76(2), is the need to recognise that two distinct steps are involved. The first is the primary determination that a sentence of imprisonment, and not some lesser sentence, is called for. The second is the determination that such term of imprisonment should be suspended for a period set by the court. The two steps should not be elided. Unless the first is taken, the second does not arise. It follows that imposition of a suspended term of imprisonment should not be imposed as a “soft option” when the court with the responsibility of sentencing is “not quite certain what to do”.
The question of what factors will determine whether a suspended sentence will be imposed, once it is decided that a term of imprisonment is appropriate, is presented starkly because, in cases where the suspended sentence is served completely, without reoffending, the result will be that the offender incurs no custodial punishment, indeed no actual coercive punishment beyond the public entry of conviction and the sentence with its attendant risks. Courts repeatedly assert that the sentence of suspended imprisonment is the penultimate penalty known to the law and this statement is given credence by the terms and structure of the statute. However, in practice, it is not always viewed that way by the public, by victims of criminal wrong-doing or even by offenders themselves. This disparity of attitudes illustrates the tension that exists between the component parts of this sentencing option: the decision to imprison and the decision to suspend.
A number of attempts have been made to resolve this tension and to provide guidance concerning the circumstances in which a sentence of imprisonment should be suspended. There is a line of authority in Australian courts that suggests that the primary consideration will be the effect such an order will have on rehabilitation of the offender, which will achieve the protection of the community which the sentence of imprisonment itself is designed to attain. But most such statements are qualified by judicial recognition that other factors may be taken into account. The point is therefore largely one of emphasis.
These observations apply equally to this State’s sentencing legislation.
[9] Dinsdale v The Queen (2000) 202 CLR 321 at [77]-[81] (footnotes omitted).
The Sentencing Process

When sentencing, the Judge concluded that the appellant’s conduct called for a sentence of imprisonment, and after making a reduction on account of the plea, he imposed a sentence of 20 months’ imprisonment. The Judge then considered the question of suspension and concluded that he would not exercise his discretion to suspend the sentence. The Judge then proceeded to fix a non-parole period of nine months and, in doing so, observed that this lower than usual non-parole period was designed to facilitate the appellant’s rehabilitation.
Counsel for the appellant submitted that the question of suspension should have been the last step in the process and should follow the imposing of a sentence and the fixing of a non-parole period. A number of authorities, including the earlier referred to observations of Kirby J in Dinsdale,[10] have identified the approach as involving, first, whether there should be a term of imprisonment before coming to consider suspension.[11] This approach avoids the risk of considering extraneous matters when declining to suspend, to ensure that proper consideration is given to the primary question of whether it is appropriate to impose a term of imprisonment and to avoid the risk that a higher sentence would be imposed when exercising the discretion to suspend.
[10] Dinsdale v The Queen (2000) 202 CLR 321.
[11] R v Wilton (1981) 28 SASR 362; R v Palliaer (1984) 35 SASR 569; R v Doecke (1999) 205 LSJS 304; Landers v Police (2002) 131 A Crim R 59.
Counsel for the Director submitted that it was a proper exercise of the sentencing discretion to impose a non-parole period that reflected a consideration of the personal circumstances of a defendant and the appropriate non-parole period. It was pointed out that this exercise can only meaningfully be undertaken when an immediate term of imprisonment is being considered. It was said that in this circumstance the consideration of an appropriate non-parole period and the question of suspension are inextricably linked. The submission continued:
It would introduce an air of unreality to the sentencing process if a sentencing judge was required to set a ‘conditional’ non-parole period on the basis that no consideration had yet been given to the question of suspension and then as a final adjustment, revisit and reduce the non-parole period to reflect a decision not to suspend coupled with a desire to allow a longer period of supervision on parole.
It was pointed out that the authorities do not go so far as to suggest that it is necessary to determine the length of a non-parole period before considering a discretion to suspend.
In the present case the process followed by the Judge did not involve error. There were mitigating factors that did not, in the Judge’s view, give rise to good reason to suspend, however those factors did allow for the fixing of a shorter than usual non-parole period.
Relevant Considerations
It was submitted that the sentencing Judge failed to have adequate regard to a number of the personal circumstances of the appellant, in particular the appellant’s rehabilitation with his altered attitude to his responsibilities including his driving, the stability of his current domestic situation, his relative youth and his good behaviour and in particular, his good driving record over the three and a half years since his offending. It was pointed out that these matters received no reference at all in the Judge’s sentencing remarks. There is some substance in these submissions but it is unnecessary to resolve the appeal on this basis, having regard to my earlier reasons with respect to the matters of aggravation.
Re-sentence
It is appropriate for this Court to re-sentence the appellant.
This is a serious case of dangerous driving causing bodily harm. The other driver suffered significant injuries with ongoing disabilities. He was lucky to survive. General deterrence is an important consideration.
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”.
In my view the overall circumstances of the present case give rise to good reason to suspend. This was a serious case of dangerous driving causing bodily harm. However, there was no suggestion of any involvement of alcohol or drugs. The personal circumstances of the appellant, his ongoing genuine remorse and his apparently settled domestic situation all provide good reason to suspend.
There was no challenge to the appropriateness of the head sentence or the non-parole period, to the reduction made on account of the plea of guilty, or to the six year licence disqualification. In all the circumstances, it is appropriate to notionally start with the sentence imposed by the sentencing Judge – a sentence of imprisonment of 20 months and a non-parole period of nine months. However, as the appellant has now spent approximately three months in custody, there needs to be an appropriate adjustment to that sentence. As a result I would sentence the appellant to a term of imprisonment of 17 months. I would fix a non-parole period of six months. I would suspend the sentence on the appellant entering into a three year good behaviour bond.
Conclusion
The appeal should be allowed. Save for the licence disqualification, the sentence imposed by the District Court should be set aside. The appellant should be sentenced to a term of imprisonment of 17 months. A non-parole period of six months should be fixed. The sentence should be suspended on the appellant entering into a three year good behaviour bond.
DAVID J. I would allow the appeal for the reasons given by Gray J. I agree with the sentence proposed by Gray J.