R v Sully - [2012] SASCFC 9

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v SULLY
[2012] SASCFC 9
Judgment of The Court of Criminal Appeal
(The Honourable Justice Sulan, The Honourable Justice Vanstone and The Honourable Justice Anderson)
22 February 2012
CRIMINAL LAW - GENERAL MATTERS - ANCILLARY LIABILITY - COMPLICITY - WITHDRAWAL
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - CULPABLE OR DANGEROUS DRIVING CAUSING DEATH OR BODILY HARM - CAUSATION
TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - MISCELLANEOUS ROAD RULES - DUTIES OF DRIVER INVOLVED IN A CRASH - FAILURE TO STOP AT SCENE OF CRASH
CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE - APPEAL DISMISSED
Appeal against conviction - appellant was convicted following trial by judge alone for causing death by dangerous driving, causing harm by dangerous driving (three counts) and leaving the accident scene after causing death by careless driving - appellant was involved in a high speed street race with another car driven by F - F collided with a third car containing the victims - appellant was charged on the basis that he aided and abetted F's dangerous driving - whether at the time of the collision the appellant had effectively withdrawn from the common purpose - survey of authorities bearing on what is required of an aider and abettor to effect withdrawal so to end his criminal responsibility - whether a unilateral decision to withdraw is sufficient - whether there need be communication to the principal of the abandonment - whether trial judge erred in finding the appellant was a substantial cause of the accident having regard to the presence of a bush obscuring the victim's view of oncoming traffic - whether appellant was "involved in an accident" within the meaning of the statutory provisions obligating him to stop at the scene - whether verdicts unsafe or unsatisfactory.
Held: appeal dismissed.

CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - PARITY BETWEEN CO-OFFENDERS - OTHER MATTERS
Appeal against sentence - appellant sentenced to four and a half years imprisonment with a non-parole period of 30 months - whether sentence was manifestly excessive having regard to penalty imposed on the co-offender F, who was given a head sentence of 2 years and 9 months and non-parole period of 12 months - F received discount for pleas of guilty and judge found special reasons why a period shorter than the mandatory minimum period should apply - whether it was open to sentencing judge to reduce the sentence to which the appellant was otherwise liable by reference to the principles of parity and totality - whether the difference in the sentences imposed on the co-offenders was such as to give rise to a justifiable sense of grievance.
Held: appeal dismissed.
Vanstone J (Anderson J agreeing) - the marked difference in the sentences was dictated by the operation of statute and the policy of giving credit to an offender who pleads guilty.
Sulan J (in dissent) - the differing operation of the Sentencing Act provisions gave rise to a justifiable sense of grievance and it was open to the Court to reduce the appellant's head sentence so that his non-parole period reflected the correct proportional differential between the two offenders.
Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002 (NSW) s 54, s 21A; Criminal Law Consolidation Act 1935 (SA) s 19AB; Road Traffic Act 1961 (SA) s 43; Criminal Law (Sentencing) Act 1988 (SA) s 18A, s 32(5)(ba), referred to.
White v Ridley (1978) 140 CLR 342; M v The Queen (1994) 181 CLR 487; R v Nguyen (2010) 242 CLR 491; Green v The Queen; Quinn v The Queen (2011) 86 ALJR 36, applied.
Guthridge v The Queen (2010) 27 VR 452, distinguished.
R v O'Flaherty [2004] 2 Cr App R 315; R v Mitchell & King (1998) 163 JP 75, not followed.
R v Croft [1944] 1 KB 295; R v Becerra (1976) 62 Cr App R 212; R v Whitefield (1984) 79 Cr App R 36; R v Tietie (1988) 34 A Crim R 438, discussed.
R v MacGowan (1986) 42 SASR 580; Lowe v The Queen (1974) 154 CLR 606; Postiglione v The Queen (1996-1997) 189 CLR 295; Muldrock v The Queen (2011) 85 ALJR 1154; R v Duong (2011) 110 SASR 296; R v Whitehouse [1941] 1 WWR 112; R v Rook [1993] 1 WLR 1005; Miller v Miller (2011) 242 CLR 446, considered.

R v SULLY
[2012] SASCFC 9
Court of Criminal Appeal: Sulan, Vanstone and Anderson JJ

SULAN J: I have had the opportunity of considering the reasons of Vanstone J. I agree with her that, in relation to ground 2, permission to appeal should be refused, and in relation to the other grounds of appeal against conviction, the appeal should be dismissed. I agree with Vanstone J’s reasons, and I have nothing further to add.
As to the appeal against sentence, for the reasons which follow, I would allow the appeal. I would set aside the sentence. Pursuant to s 18A of the Criminal Law (Sentencing) Act 1988 (SA) (‘the Sentencing Act’), I would impose one overall sentence for all offences of 23 months’ imprisonment, and I would impose a non-parole period of 19 months’ imprisonment.
My reasons for allowing the appeal against sentence and concluding that the sentence to be imposed should be that to which I have earlier referred, must be considered, having regard to the legislative provisions of the Sentencing Act, and to the common law principles of sentencing.
Section 10 of the Sentencing Act requires a sentencing court to have regard to a number of matters which includes any other relevant matters.[1] In R v MacGowan,[2] King CJ, with whom Mohr and von Doussa JJ agreed, concluded that the common law principle of disparity applies to the imposition of sentences in South Australia. The common law principles of sentencing continue to apply to sentences imposed in South Australian courts, and must be considered having regard to other legislative requirements. In arriving at his conclusions in MacGowan, King CJ referred to the High Court decision in Lowe v The Queen,[3] and summarised certain principles from Lowe’s case, including:[4]
1.Where two or more persons are sentenced by the same judge for the same crime or crimes the sentences imposed on them should be proportionate to their respective degrees of culpability and to the various personal factors of aggravation and mitigation. Any distinctions in the sentences imposed should fairly reflect differences in the respective degrees of culpability and the circumstances of the offenders and should be explained by the sentencing judge. Unjustified disparities will be rectified by the Court of Criminal Appeal on appeal by the Attorney-General or the offender even though the sentence under review, considered apart from disparity, might be regarded as within the permissible sentencing range.
[1] Criminal Law (Sentencing) Act 1988 (SA) s 10(1)(o).
[2] (1986) 42 SASR 580.
[3] (1984) 154 CLR 606.
[4] Lowe v The Queen (1984) 154 CLR 606 as cited in R v MacGowan (1986) 42 SASR 580, 582-583 per King CJ.
King CJ confirmed that, where there are marked disparities in a sentence which cannot be justified in the circumstances of a particular case, the Court of Criminal Appeal will interfere to eliminate the disparity. In Lowe, Mason J said:[5]
It has been urged with some force that a sentence which is appropriate to the offence should never be reduced on the ground of discrepancy because there can be no acceptable basis for substituting a lesser sentence for one which is appropriate. On this approach the tendency of a particular sentence to engender a justifiable sense of grievance in the offender and an appearance to the community of unfairness or injustice, by reason of the harshness of the sentence in comparison with that imposed on the co-offender, is immaterial, so long as it is appropriate to the circumstances of the case. It is said that the proper method of correcting the discrepancy is to increase the penalty of the co-offender if it is inappropriate or inadequate. The difficulty with this approach is that a court of criminal appeal is from time to time unable to avoid that sense of grievance and the appearance of injustice by increasing an inadequate penalty imposed on the co-accused simply because there is no Crown appeal against that penalty. It has therefore been generally accepted that it is preferable to err or [sic] the side of leniency and eliminate or diminish the sense of grievance and appearance of injustice by reducing the more severe penalty in appropriate cases. So the courts have on many occasions reduced a sentence to bring it more into line with the co-offender’s penalty, though it is well established that there is no principle of law that sentences must strictly compare.
The reference to an appropriate sentence is apt to be misunderstood. Generally speaking, a sentence within a limited range of years is appropriate to the circumstances in which the offence was committed and to the character, antecedents and conditions of the offender. As the ascertainment and imposition of an appropriate sentence involve the exercise of judicial discretion based on an assessment of various factors it is not possible to say that a sentence of a particular duration is the only correct or appropriate penalty to the exclusion of any other penalty. Accordingly, a court of criminal appeal confronted with the problem of discrepancy can substitute for a severe but appropriate sentence a lesser sentence which nevertheless falls within the order of what is appropriate. But the critical question is whether a court of criminal appeal can go further by reducing a sentence, which considered apart from disparity is otherwise appropriate, to a level where it is inadequate or might be regarded as inadequate.
[References omitted]
[5] Lowe v The Queen (1984) 154 CLR 606, 611-612.
It is to be noted that Mason J considered that courts should err on the side of leniency and eliminate, or diminish, the sense of grievance and appearance of injustice by reducing appropriate sentences to lesser sentences, when appropriate.   The principle referred to in Lowe was further discussed in Postiglione v The Queen,[6] in the joint judgment of Dawson and Gaudron JJ. They said:[7]
[6] (1996-1997) 189 CLR 295.
[7]    Postiglione v The Queen (1996-1997) 189 CLR 295, 301-302.
The parity principle upon which the argument in this Court was mainly based is an aspect of equal justice. Equal justice requires that like should be treated alike but that, if there are relevant differences, due allowance should be made for them. In the case of co‑offenders, different sentences may reflect different degrees of culpability or their different circumstances. If so, the notion of equal justice is not violated. On some occasions, different sentences may indicate that one or other of them is infected with error. Ordinarily, correction of the error will result in there being a due proportion between the sentences and there will then be equal justice. However, the parity principle, as identified and expounded in Lowe v The Queen, recognises that equal justice requires that, as between co-offenders, there should not be a marked disparity which gives rise to “a justifiable sense of grievance”. If there is, the sentence in issue should be reduced, notwithstanding that it is otherwise appropriate and within the permissible range of sentencing options.
Discrepancy or disparity is not simply a question of the imposition of different sentences for the same offence. Rather, it is a question of due proportion between those sentences, that being a matter to be determined having regard to the different circumstances of the co-offenders in question and their different degrees of criminality. The different circumstances involved in this case, namely, the fact that Savvas was the principal organiser in both conspiracies and that Postiglione rendered significant assistance to police and prosecuting authorities, clearly require that Postiglione receive a markedly lesser sentence than that imposed on Savvas.
If regard is had solely to the head sentences – twenty-five years in the case of Savvas, eighteen years in Postiglione’s case – the difference may fairly be regarded as reflecting their different roles in the conspiracies in respect of which they were convicted and Postiglione’s subsequent co-operation with police and prosecuting authorities. However, the head sentence is but one component of the sentences. A proper comparison involves a consideration of all components.
One component of each of the sentences involved in this case and one which is susceptible of easy comparison is the non-parole period. ...
[References omitted]
[Emphasis mine]
Their Honours referred particularly to comparisons of the non-parole period in that particular case. McHugh J also adopted the principle of parity referred to in Lowe:[8]
The principle of parity of sentencing between co-offenders is not in terms recognised in the Act but it is a well established principle. In R v Tiddy¸ the Court of Criminal Appeal of South Australia defined the principle as follows:
“Where other things are equal persons concerned in the same crime should receive the same punishment; and where other things are not equal a due discrimination should be made.”
A sentencing judge must give effect to the parity principle in cases to which the Act applies.
If a judge wrongly fails to give effect to the parity principle, an appellate court will intervene to correct what is an error in sentencing principle. In Lowe v The Queen, Gibbs CJ, with whom Wilson J agreed, said that an appellate court should intervene where “the disparity is such as to give rise to a justifiable sense of grievance, or in other words to give the appearance that justice has not been done”. Mason J stated that an appellate court is entitled to intervene when there is a manifest discrepancy such as to engender a justifiable sense of grievance. Dawson J, with whom Wilson J also agreed, was of the view that “[t]he difference between the sentences must be manifestly excessive and call for the intervention of an appellate court in the interests of justice”.
[References omitted]
[8]    Lowe v The Queen (1984) 154 CLR 606 as cited in Postiglione v The Queen (1996-1997) 189 CLR 295, 309 per McHugh J.
Kirby J discussed the various principles derived from the authorities in respect of what is described as “unjust disparity”. Those included the principle that:[9]
1.Consistency in punishment is “a reflection of the notion of equal justice”. It is an attribute of “any rational and fair system of criminal justice”. On the other side of the coin, inconsistency in punishment is regarded as “a badge of unfairness” which erodes public confidence in the integrity of the administration of justice. The removal of serious and unjustifiable disparities in the treatment of like cases is a legitimate goal of the administration of criminal justice. There are various ways to promote this objective. However, so long as sentencing remains a judicial task (as distinct from a function of a sentencing commission or like body) consistency may be promoted by the provision of appellate decisions on points of principle, by the supply to sentencing judges of data on sentencing practice, by statutory guidelines of the kind attempted in Part 1B of the Act and by general appellate supervision.
Kirby J confirmed that the wide sentencing discretion which was afforded to sentencing courts recognises that judges should have a wide measure of latitude to ensure that sentences are fair.
[9] Postiglione v The Queen (1996-1997) 189 CLR 295, 335-336 per Kirby J.
It is to be observed that, when considering the question of parity, not only must the court have regard to the head sentence, but also the non-parole period, which is an essential component of the sentence. In many respects, the non-parole period is more significant than the head sentence. To the prisoner and, in my view, in the perception of the public, the actual time a person is required to serve before being eligible for release on parole is more important and significant than the head sentence. When one considers the sense of grievance that is perceived in comparing sentences, that sense of grievance has greater relevance, insofar as the defendant is concerned, to the non-parole period than the head sentence. This is particularly so in cases of death by dangerous driving where, often, the court is confronted with a first offender who has no criminal record, who is unlikely to engage in criminal conduct in the future, whose prospects of rehabilitation are excellent, and who is unlikely to breach his or her parole. In those cases, the non-parole period is primarily a consideration, as it reflects the actual minimal time the offender will spend in custody.
In Postiglione, the Court referred to the actual period an offender will spend in custody as relevant to the application of the principle of parity.[10] (see McHugh J at 309).
[10] Postiglione v The Queen (1996-1997) 189 CLR 295, 309 per McHugh J.
The High Court has further endorsed the principle in Green and Quinn v The Queen.[11] French, Crennan and Kiefel JJ made the following observations:[12]
In Lowe v The Queen and in Postiglione v the [sic] Queen, this Court was concerned with the application of the parity principle to persons charged with the same offences arising out of the same criminal conduct or enterprise. Those decisions are not authority for the proposition that the principle applies only to persons so charged. The foundation of the parity principle in the norm of equality before the law requires that its application be governed by consideration of substance rather than form. Formal identity of charges against the offenders whose sentences are compared is not a necessary condition of its application. Nevertheless, as Campbell JA recognised in Jimmy v The Queen, there can be significant practical difficulties in comparing the sentences of participants in the same criminal enterprise who have been charged with different crimes. The greater the difference between the crimes, the greater the practical difficulties, particularly where disparity is said to arise out of a sentence imposed on a co-offender who has been charged with an offence that is less serious than that of the appellant. The existence of those difficulties may be accepted. So too may the inability of a court of criminal appeal to undertake, under the parity rubric, a de facto review of prosecutorial charging discretions. Those practical difficulties and limitations, however, do not exclude the operation of the parity principle. The effect given to it may vary according to the circumstances of the case, including differences between the offences with which co‑offenders are charged.
Because appeals are creatures of statute, the parity principle in appeals against sentence arises in a statutory context. The jurisdictions to entertain such appeals, conferred by statutes on courts of criminal appeal in Australia, are supported by powers to increase or reduce sentences affected by appealable error. In the exercise of those powers in appeals by convicted persons, and subject to the applicable sentencing statutes, a court may “reduce a sentence not in itself manifestly excessive in order to avoid a marked disparity with a sentence imposed on a co-offender”. The exercise of the statutory discretion is informed by the common law norm. Gibbs J said in Lowe v The Queen:
“the reason why the court interferes in such a case is that it considers that the disparity is such as to give rise to a justifiable sense of grievance, or in other words to give the appearance that justice has not been done.”
...
There is a question whether a sentence which would otherwise be appropriate can be reduced on the ground of disparity to a level which, had there been no disparity, would be regarded as erroneously lenient. In Lowe that question was answered explicitly in the affirmative by Mason J and less explicitly but to like effect by Dawson J, with whom Wilson J agreed. It has also been answered in the affirmative in a number of cases in the Court of Criminal Appeal of New South Wales. On the other hand, as Simpson J correctly pointed out in R v Steele, the existence of a discretion, where unjustified disparity is shown, to reduce a co-offenders’ sentence to one which is inadequate does not amount to an obligation to do so. Certainly, the discretion of the Court of Criminal Appeal to reduce a sentence to a less than adequate level would not require it to consider reducing the sentence to a level which would be, as Street CJ put it in R v Draper, “an affront to the proper administration of justice.” Moreover, if the relevant sentencing legislation, on its proper construction, does not permit an inadequate sentence to be imposed, there can be no discretion on appeal to impose one. Whether or not the discretion to reduce a sentence to an inadequate level is available, marked and unjustified disparity may be mitigated by reduction of the sentence appealed against to a level which, although lower, is still within the range of appropriate sentences.
[References omitted]
[11] (2011) 86 ALJR 36.
[12] Green and Quinn v The Queen (2011) 86 ALJR 36, [30]-[31], [33].

Section 32 of the Sentencing Act deals with fixing non-parole periods for offences. Sections 32(5) and 32(5a) provide:[13]
[13] Criminal Law (Sentencing) Act 1988 (SA).
(5)The above provisions are subject to the following qualifications:
(a)a non-parole period may not be fixed in respect of a person who is liable to serve a total period of imprisonment (or detention and imprisonment) of less than one year;
(ab)if fixing a non-parole period in respect of a person sentenced to life imprisonment for an offence of murder, the mandatory minimum non-parole period prescribed in respect of the offence is 20 years;
(b)where a person who is subject to a sentence of life imprisonment is further sentenced to imprisonment by the Magistrates Court or the Youth Court, the question of whether a non-parole period should be fixed or extended must be referred to the court by which the sentence of life imprisonment was imposed;
(ba)if fixing a non-parole period in respect of a person sentenced to imprisonment for a serious offence against the person, the mandatory minimum non-parole period prescribed in respect of the offence is four-fifths the length of the sentence;
(c)a court may, by order, decline to fix a non-parole period in respect of a person sentenced to imprisonment if the court is of the opinion that it would be inappropriate to fix such a period because of –
(i)the gravity of the offence or the circumstances surrounding the offence; or
(ii)the criminal record of the person; or
(iii)the behaviour of the person during any previous period of release on parole or conditional release, or
(iv)any other circumstance.
(5a)If –
(a)a court sentences a person under section 18A to the 1 penalty for a number of offences; and
(b)a mandatory minimum non-parole period is prescribed (mandatory period) in respect of any of those offences,
any non-parole period to be fixed by the court under that section –
(c)must be a period not less than the mandatory period prescribed in respect of the relevant offence; and
(d)if there is more than 1 such offence in respect of which a mandatory period is prescribed – must be a period not less than the greater of any such mandatory period; and
(e)must be commenced or be taken to have commenced on the date specified by the court (which may be the day on which the person was first taken into custody or a later date specified by the court that occurs after the day on which the defendant was taken into custody but before the day on which the person is sentenced).
Note –
See PNJ v The Queen [2009] HCA 6.
A serious offence against a person includes the offence of causing death by dangerous driving. It follows that, in respect of that offence, the sentencing Judge was required to impose a minimum non-parole period of four‑fifths of at least the head sentence for the offence of death by dangerous driving.
The approach taken by the sentencing Judge was to determine that four‑fifths of 36 months, being the notional sentence she imposed for the offence which attracted the minimum non-parole period, resulted in a notional non-parole period of 28.8 months.
In respect of the dangerous driving which caused injury to persons in the accident, that is the three counts of causing bodily injury by dangerous driving, she imposed a notional sentence of six months’ imprisonment and, for the offence of failing to render assistance, she imposed a sentence of 12 months’ imprisonment. Of that additional 18 months’ imprisonment, she imposed a notional non‑parole period of 1.2 months.
The final sentence she imposed, pursuant to s 18 of the Sentencing Act, was, therefore, 54 months with a 30-month non-parole period.
Vanstone J has raised the question of whether, under the statute, the approach taken by the sentencing Judge is open, but she has not finally dealt with that question, because both the Director of Public Prosecutions and the appellant agreed that the approach was open to the trial Judge. On this question, I agree with the comments of Vanstone J.
The Judge’s approach in setting a non-parole period for the offences which did not attract minimum non-parole periods was somewhat artificial. To set a notional non-parole period of 1.8 months on an 18 months’ head sentence would, in normal circumstances, be unrealistically low, but it was done in this case to lessen the disparity in the non-parole periods imposed on the two drivers, having regard to the requirement to impose a minimum non-parole period for the offence of causing death by dangerous driving.
The approach of the sentencing Judge demonstrates how the minimum non‑parole provisions can lead to an “unfair” or an “unjust” result, when mandatory minimum sentences are imposed by a statute. The requirement to impose minimum sentences has been the subject of comments by a number of single judges when imposing sentences.[14] The comments have highlighted the injustice which can flow from a mandatory sentencing regime. This case demonstrates the unfairness which can result from legislation which provides for mandatory sentencing.
[14] See The Queen v Faeck and Warkor (sentencing remarks, District Court of Queensland, Acting Judge Farr SC, 8 June 2011); The Queen v Nasir and Jufri (sentencing remarks, Supreme Court of Queensland, Atkinson J, 2 December 2011) and The Queen and Dokeng (sentencing remarks, The Supreme Court of the Northern Territory, Kelly J, 2 December 2010).
The question which then arises is whether the principle of parity in sentencing has application in the circumstances of this case and to the non-parole period imposed.
In Muldrock v The Queen,[15] the High Court considered a provision in the Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002 (NSW). Certain offences have been specified as subject to a standard non‑parole period. Those offences and standard non-parole periods are set out in a table. In considering s 54(2) of that Act, the Court said:[16]
[15] (2011) 85 ALJR 1154.
[16] Muldrock v The Queen ()2011) 85 ALJR 1154, [12]-[13].
The provision of standard non-parole periods for the sentencing of offenders in New South Wales was introduced by the Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002 (NSW) (“the Amending Act”), which inserted Div 1A of Pt4 into the Sentencing Act. Division 1A governs the sentencing of offenders for offences to which standard non-parole periods apply. These are the offences specified in the Table to the Division. The standard non-parole period is the non-parole period set out for each offence in the Table. Section 54A(2) provides:
“For the purposes of sentencing an offender, the standard non-parole period represents the non-parole period for an offence in the middle of the range of objective seriousness for offences in the Table to this Division.”
[References omitted]
...
... Section 54B applies when a court sentences an offender to imprisonment for an offence listed in the Table. At the material time, s 54B relevantly provided:
“...
(2)     When determining the sentence for the offence, the court is to set the standard non-parole period as the non-parole period for the offence unless the court determines that there are reasons for setting a non-parole period that is longer or shorter than the standard non-parole period.
(3)     The reasons for which the court may set a non-parole period that is longer or shorter than the standard non-parole period are only those referred to in section 21A.
(4)     The court must make a record of its reasons for increasing or reducing the standard non-parole period. The court must identify in the record of its reasons each factor that it took into account.
...”
Section 21A(4) provides that regard must not be had to aggravating and mitigating factors if to do so “would be contrary to any Act or rule of law”. The High Court, French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ observed that the fixing of a non-parole period is but one part of the larger task of fixing an appropriate sentence upon a particular offender. They observed that, at common law, the exercise of a sentencing discretion is the subject of established principles which include parity. The principles of common law, the Court observed, answer the description of matters to be taken into account by the Court under any rule of law.
The question which arises in this appeal is, having concluded that the principles of common law have application and that s 32 does not exclude the application of those principles, in order to achieve a fair comparison of sentences in this case is it open to this Court to reduce what would otherwise be an appropriate head sentence to achieve parity in the non-parole period? In my opinion, to do so would be to give effect to the Sentencing Act by applying a non-parole period which is four-fifths the head sentence, whilst achieving parity in the non‑parole period. This is one of the cases in which it is appropriate to reduce a head sentence below that which is appropriate to achieve parity.
Having arrived at that conclusion, it is appropriate to set out in some detail how the principle applies to the case in question.
The Judge considered that both Fenney and the appellant were equally culpable for the death of the driver who died in the accident, and equally responsible for the injuries to the persons who suffered injuries in the accident the subject of counts 2, 3 and 4. I agree with the Judge’s conclusion. No error has been demonstrated in her approach.
The death and injuries were as a result of the appellant and Fenney engaging in a race. The fact that the appellant’s vehicle was not directly involved in the collision is not a basis to distinguish between the culpability of each driver. The Judge dealt with the personal circumstances of the appellant and Fenney and concluded, correctly in my view, that there were no distinguishable features in their circumstances. If they were the only factors, then the principle of parity which I have discussed would have required the Judge to impose the same head sentence and non-parole period for each offender.
The points of distinction between the two are that the appellant faced a further charge of failing to render assistance and, further, that he pleaded not guilty to the charges and, therefore, was not entitled to a reduction of the head sentence on account of a plea of guilty.
Further, the Judge was required by s 32 to impose a minimum non-parole period in respect of the offence of causing death by dangerous driving.
Putting aside for a moment the operation and effect of s 32 of the Sentencing Act, and applying the relevant sentencing principles, as well as the notional sentences indicated by the Judge, the result would have been as follows. In the case of Fenney, the Judge started with a notional head sentence of three years for death by dangerous driving and, for the offence of causing injury, she added a further six months. She, therefore, arrived at a starting point of 42 months. She reduced that to 33 months on account of the plea of guilty. Using s 18A of the Sentencing Act, she imposed an overall sentence of two years and nine months’ imprisonment, and she determined a non-parole period of 12 months’ imprisonment. The non-parole period is approximately 36 per cent of the head sentence.
In the case of the appellant, the sentencing Judge determined that the same notional head sentence for the offences resulting in death and injury as a consequence of the driving; that is, 42 months’ imprisonment. She then added a further 12 months for the offence of failing to stop and render assistance. The total notional sentence was, therefore 54 months’ imprisonment.
The appellant was not entitled to a discount, as he had pleaded not guilty. Therefore, applying the same percentage in setting a non-parole period the result would have been a non-parole period of approximately 19 months’ imprisonment. That is approximately 36 per cent of the head sentence of 54 months’ imprisonment.
It can be seen, therefore, but for the operation of s 32 of the Sentencing Act, having regard to the fact that there were no distinguishing features between the two offenders, other than those to which I have referred, the appellant would have received a non-parole period of 19 months’ imprisonment. This would have reflected approximately equal treatment between offenders.
Vanstone J has set out the approach the Judge adopted by applying s 32 to the offence of causing death by dangerous driving, which required the Judge to impose a non-parole period of four-fifths of the notional head sentence for the offence of death by dangerous driving. The final result was that the appellant must serve a non-parole period of 30 months’ imprisonment, which is some 11 months more than would be the case if the principle of parity was applied without the application of s 32 in the way in which the sentencing Judge applied it.
The effect of the application of the mandatory non-parole period for the offence of death by dangerous driving in this case is that two offenders with indistinguishable personal circumstances, and with very good prospects of rehabilitation, will have received substantially different non‑parole periods for effectively the same offending. Clearly, this has the effect, when considered objectively, of leaving the appellant with a justifiable sense of grievance. As I have indicated, the principle of parity entitles a court of appeal to intervene when there is a manifest discrepancy in sentences. The court is permitted to reduce what is not an excessive or inappropriate sentence to a point where it might be regarded as inadequate if it stood alone, in order to achieve parity.
Applying that principle in the present case, it is not only the head sentence which is to be considered, but also the non-parole period. As I have indicated, in my view, it is open to the appeal court to give effect to the principle of disparity by reducing the head sentence in respect of the appellant so that the non-parole period will reflect the correct proportional differential between the two offenders, even though the head sentence of the appellant will be well below what might be regarded as an adequate sentence.
As I have indicated, the appropriate non-parole period to have been imposed on the appellant, having regard to the two differences, namely his plea of not guilty and the additional offence of failing to render assistance, would have been approximately 19 months’ imprisonment.
In order to reflect that, it is necessary to adjust the head sentence to 23 months’ imprisonment. If the total head sentence is 23 months’ imprisonment, then applying the requirement that the non-parole period be four-fifths the head sentence, that would result in an non-parole period of slightly less than 19 months’ imprisonment.
I would therefore allow the appeal, impose one sentence pursuant to s 18A of the Sentencing Act for all offences of 23 months’ imprisonment, and I would set a non-parole period of 19 months’ imprisonment.
VANSTONE J: Corey Michael Sully stood trial in this Court before a judge sitting without a jury on charges of causing death by dangerous driving, three counts of causing harm by dangerous driving (one count alleging serious harm) and leaving the accident scene after causing death by careless driving. He was found guilty as charged. The essence of the prosecution case was that Sully was involved in a high speed race with another driver (Fenney) along a major suburban road. It was Fenney’s car that was involved in a collision which led to the death of one person and injuries to others. Sully was charged on the basis that he aided and abetted Fenney’s dangerous driving. Sully did not give evidence at his trial.
He now appeals against the convictions on various grounds. Principal among them is his contention that an aider and abetter who ceases to aid and abet before the actus reus takes place is not criminally responsible for the principal’s offence. He also argues that he could not properly be convicted of an offence of leaving an accident scene after causing death by careless driving because the statutory obligation to stop and render assistance falls only upon the driver of a vehicle “involved in an accident”, which, the appellant argues, he was not. A further ground complains that the convictions are unsafe and unsatisfactory. The appellant also renews an application for permission to appeal in respect of a ground raising the proof of causation.
Background
The collision occurred on Torrens Road, Woodville North at the junction of Audley Street soon after 8:30 pm on 14 May 2009. Each of the appellant and Fenney were driving along Torrens Road in a south easterly direction, that is, towards the city. Each was driving a Subaru WRX, the appellant’s being a distinctive green colour and Fenney’s being blue.
Extensive reasons for the verdicts were given: R v Sully [2011] SASC 169. The judge found, contrary to his denials in an interview with police, that the appellant and Fenney were engaged in a race for “at least 500 metres”: [173]. During the race speeds of at least 100 kilometres per hour were attained. The judge found that the appellant pulled out of the race not long before the junction of Torrens Road and Audley Street because he intended to turn left into Audley Street: [174]; and that the collision occurred “in a matter of seconds only of [the appellant] braking and slowing down” to take that turn: [176].
The judge further found that even if the appellant was not still racing at the time of the collision he was criminally responsible for the dangerous driving of Fenney as an aider and abettor because the appellant’s abandonment of the race (if that is what it was) was “too late”: [176]; the appellant’s encouragement of Fenney to drive in a dangerous manner along Torrens Road to Audley Street was “still operating” at the time when the collision occurred: [178]; the abandonment was “not such as to negate the earlier encouragement” given to Fenney: [178]; the encouragement earlier given to Fenney “was still operating in the mind of Fenney” at the time of the collision: [178]; “[t]he chain of causation had not at that stage been broken irrespective of the precise point at which the [appellant] slowed down and made the left hand turn into Audley Street”: [178].
The aiding and abetting argument
Mr Algie SC, for the appellant, argued that on these findings, the appellant could not properly be found guilty of the charges. He argued that the relevant principle is that, where aiding and abetting is constituted by spontaneous acts of encouragement by “A” of “B”, ceasing to aid and abet is withdrawal sufficient to render A no longer criminally responsible for the ensuing acts of B. He asked rhetorically: “How else could a person in the appellant’s position signify abandonment?” He argued that it followed that any continuing impact of A’s earlier acts on B’s mind beyond the point of A’s withdrawal was not relevant. The ongoing effect of the earlier encouragement was, he suggested, possibly relevant to civil liability, but was not so in a criminal prosecution.
In support of his argument Mr Algie referred to the discussion in this Court of R v Duong (2011) 110 SASR 296 and the citation within it of R v O’Flaherty [2004] 2 Cr App R 315. He made especial mention of a passage in Guthridge v The Queen (2010) 27 VR 452. That was an appeal against conviction for an offence of dangerous driving causing death. The case against Guthridge was that he was engaged in a high speed race with another man (Roast) when Roast’s vehicle came into collision with a car driven by a young woman, who died from injuries sustained. The conviction was quashed on account of deficits in the directions defining dangerous driving, but the Court went on to discuss the liability of an aider and abettor in such circumstances. The passages to which Mr Algie took us were concerned with the first and second grounds of appeal. Ground 1 asserted that there was not sufficient evidence on which to base a conclusion that the two men were racing at the time of the collision. Ground 2 asserted that, even if racing were found proved, a jury could not properly find Guthridge liable for the death on the basis of complicity. The defence case at trial was that there was insufficient evidence to justify a conclusion that there had been a race. Defence counsel had not suggested that there was any evidence of the appellant having withdrawn from any race found to be proved. The Court said:
[90]The applicant could only be complicit in any offence committed by Roast if the men were still racing when the collision occurred. In our opinion it was open to the jury to reach that conclusion beyond reasonable doubt. As we have concluded that the conviction must in any event be quashed, it will suffice if we refer only briefly to the evidence that supports that conclusion.
Having dealt with evidence going to prove a race, the Court then turned to the complicity argument. It concluded that there could, in some circumstances, be liability on the basis of pre-concert. However, it found that, given the requisite factual findings, it was open to the jury to convict on the basis of aiding and abetting the other’s dangerous driving: [111]. Indeed the Court said that this was, in the circumstances, the preferable way for the prosecution to frame its case.

I do not consider that this authority assists the appellant. The paragraph cited by Mr Algie does not pretend to be a statement of general principle. It must be understood in the context of the facts, which centred on the contest as to whether or not Guthridge and Roast had been racing at all. As I have said, there was no suggestion of an earlier race followed by withdrawal from it by Guthridge. The Court’s attention was focussed on whether there was any evidence at all upon which a conclusion that there had been racing could be based.
In Duong counsel for one of the appellants, Sem, put to this Court an argument based on a decision of the English Court of Appeal in R v O’Flaherty. The case was referred to in the context of a submission that the trial judge in Duong failed to bring home to the jury that one of the appellants, Sem, must be shown to have still been a part of a joint enterprise to inflict violence at the time when the fatal wounds were sustained. In the judgment of Doyle CJ, with which Peek J agreed, the Chief Justice set out some passages from O’Flaherty. Those passages in turn made reference to R v Mitchell & King (1999) 163 JP 75. The Chief Justice said that he found the observations in O’Flaherty helpful, but since the case against Sem did not involve spontaneous violence, O’Flaherty’s case was not directly applicable: [132]. In any event the directions given, which spoke of a requirement that the agreement or arrangement was still on foot and had not been called off, were found to adequately address the complaint, especially in light of the fact that there was no evidence that Sem had withdrawn from any joint enterprise. I do not consider that Duong’s case signifies an unqualified acceptance of O’Flaherty by this Court.
In order to better consider the ambit and authority of the decision in O’Flaherty, it is helpful to examine cases and commentary which preceded and followed it.
I start with the important case of Rex v Croft [1944] 1 KB 295. There, the English Court of Criminal Appeal considered the appeal of a person convicted of murder after he had encouraged the female victim to take her own life in pursuance of a suicide pact. He argued on appeal that he could not incur accessorial liability by reason of the fact that he had terminated the agreement to commit suicide prior to the victim shooting herself a second time. He claimed that she had asked him to go for help and he had moved away to do so, when he heard the revolver discharge again. The Court held that there was no error in the trial judge having not left to the jury the question of withdrawal because there was no evidence of express countermand or revocation of the appellant’s previous advice, counselling, procuring or abetting. The Court said at 298:
We are of opinion that the circumstances in this case did not amount, and could not reasonably have been held to amount, to such a clear countermanding or determination of the agreement as would discharge the appellant from liability to a charge of murder if that which occurred was the result of what he had done before. He never said anything to the woman which could have removed from her mind the effect of the counsel which he had previously given her.
Writing in 1961, Professor Glanville Williams, Criminal Law: The General Part (Stevens & Sons, 2^nd ed, 1961, 384) having referred to Croft, said that to demand express withdrawal might be “in some cases too stringent”. He said that in some circumstances withdrawal could be implied from conduct. He also observed that the question of withdrawal should be approached by asking whether the “authorisation” had been withdrawn, rather than asking whether the accessory had influenced the principal’s mind.
In R v Becerra (1976) 62 Cr App R 212 the Court approved of the requirement in Croft for express and actual countermand or revocation of the advising, counselling, procuring or abetting: at 219. There, three men had formed an agreement to break into a house. It was agreed that a knife would be taken in case they should be surprised. Becerra handed the knife to one of the others, Cooper, as they entered the house. When an occupant interrupted them he was stabbed to death by Cooper. Becerra argued that he was not liable because just before the killing he had said to Cooper “let’s go” and had jumped out of the house through a window.
The Court undertook a survey of the leading cases on the issue of withdrawal. It extended to consideration of the Canadian Court of Appeal decision in R v Whitehouse [1941] 1 WWR 112. A passage from the judgment of Sloan JA was specifically approved. I set it out in part (218):
After a crime has been committed and before a prior abandonment of the common enterprise may be found by a jury there must be, in my view, in the absence of exceptional circumstances, something more than a mere mental change of intention and physical change of place by those associates who wish to dissociate themselves from the consequences attendant upon their willing assistance up to the moment of the actual commission of that crime. I would not attempt to define too closely what must be done in criminal matters involving participation in a common unlawful purpose to break the chain of causation and responsibility. That must depend upon the circumstances of each case but it seems to me that one essential element ought to be established in a case of this kind: Where practicable and reasonable there must be timely communication of the intention to abandon the common purpose from those who wish to dissociate themselves from the contemplated crime to those who desire to continue in it. What is ‘timely communication’ must be determined by the facts of each case but where practicable and reasonable it ought to be such communication, verbal or otherwise, that will serve unequivocal notice upon the other party to the common unlawful case that if he proceeds upon it he does so without the further aid and assistance of those who withdraw. The unlawful purpose of him who continues alone is then his own and not one in common with those who are no longer parties to it nor liable to its full and final consequences.
The Court in Becerra went on to say that if Becerra’s withdrawal was to be effective to countermand or repent his earlier involvement, something “vastly different and vastly more effective” was required. The Court refrained from considering whether the only effective withdrawal would have involved physically intervening so as to stop Cooper’s attack on the victim.
Some time ago the High Court considered this issue in the context of what might be effective countermand by a principal who had recruited the assistance of an innocent agent: White v Ridley (1978) 140 CLR 342. The applicant, being in Singapore, gave instructions to Singapore Airlines to deliver a box, ostensibly containing a stereo receiver, to Sydney. In fact the stereo receiver contained a quantity of cannabis. When the applicant returned to Sydney he was searched and found to be in possession of the relevant consignment note. Being apprehensive of detection he instructed Ansett Airlines to advise Singapore Airlines to cancel delivery of the box. A telex message was sent but not acted upon.
The decision in the High Court by majority (Jacobs and Murphy JJ dissenting) was that the appellant had been properly convicted. Gibbs J found that if the applicant was criminally responsible for the importation, it was as a principal. He held that the applicant’s responsibility, against his claimed withdrawal, could be determined by reference to analogous questions arising where a counsellor or procurer had countermanded his earlier counselling (at 347). Gibbs J concluded that there would be no liability if “timely countermand” had been given. It was necessary for the countermand to have been “manifested by words or conduct sufficiently clear to bring it home to the mind of the agent that the accused no longer desires the agent to do what he was previously asked to do”. In addition, the accused must have “done or said whatever was reasonably possible to counteract the effect of his earlier request” (at 351). Gibbs J cautioned against analysis of withdrawal by accessories as an issue of causation. Like the court in Becerra, he quoted from the Canadian decision of Whitehouse, with apparent approval. He went on to say (at 351):
A trial judge or a jury need not in my opinion decide a case such as this by considering questions of causation. It may be true that the rules relating to countermand may be explained by reference to the principles of causation, and that if after a sufficient countermand the agent nevertheless proceeds to act in accordance with the request originally made, his acts may be regarded as resulting from a new and intervening cause. But it is enough to apply directly the rules I have endeavoured to state; for a trial judge or jury to go behind them, and consider questions of causation, is more likely to lead to confusion than to provide assistance.
Stephen J, with whose reasons Aickin J agreed, characterised the issue as one of causation. His Honour held that once the applicant had taken action calculated to result in the prohibited importation, and bearing in mind that the importation in fact occurred, only an event liable to be seen as depriving the arrangement of its quality as the cause of the importation would be sufficient to absolve him of criminal responsibility; in effect, a break in the chain of causation. Stephen J held that there having been only an ineffective attempt to countermand the earlier instruction, there was no such new cause and the applicant remained liable.
It is to be borne in mind that in this case White was the principal rather than an aider and abettor. There is a difficulty with applying the approach of Stephen J to an aider and abettor, inasmuch as the prosecution need never prove that the encouragement or assistance provided by an aider and abettor was causative of the offence. Accordingly, the approach of Gibbs J can be applied more readily to accessorial liability.
In R v Whitefield (1984) 79 Cr App R 36 the English Court of Criminal Appeal considered an appeal against a conviction for burglary. The appellant admitted that he had told two others that the flat next to his was unoccupied and had agreed that they would break into it, gaining access from his balcony. They discussed how the property should be divided between them. However, the appellant decided he would not go through with the plan and informed the others of his decision. He knew that the crime was committed because he could hear it from his flat and he did nothing to prevent it. The question on appeal was whether the trial judge had properly left the issue of withdrawal to the jury. The Court proceeded on the basis that the law was that a person who had counselled another to commit a crime could escape liability by withdrawing prior to the crime being committed, but it was not sufficient that he should merely repent. The Court said:
If his participation is confined to advice or encouragement, he must at least communicate his change of mind to the other, and the communication must be such as ‘will serve unequivocal notice upon the other party to the common unlawful cause that if he proceeds upon it he does so without the aid and assistance of those who withdraw’. (Citing Whitehouse and Becerra)
It was held that the judge had been wrong to instruct the jury that such notice as the appellant had given, falling short of communicating with the police or taking other steps to prevent the burglary, could not absolve him of criminal responsibility.
A more demanding approach to the question of what is required to effect withdrawal once having aided and abetted was taken in the only Australian criminal case on the question which my researches have turned up: R v Tietie (1988) 34 A Crim R 438, a decision of the Court of Criminal Appeal of New South Wales.
There, the three appellants had spontaneously attacked the victim in the street, knocking him down, punching and kicking him until he was mortally injured. The appellants were convicted for murder. One of the grounds of appeal was that the directions on common purpose were misleading. In his interview, Tietie said that after the victim was knocked down he held his legs while the others rained blows on the victim’s upper body. He claimed that he then decided the victim had had enough and that he resigned any role in the attack and also called out loudly to the others to stop. He said when they refused he ran away and jumped on a train. On the matter of withdrawal, the judge directed as follows:
To effectively withdraw from a common enterprise upon which he has embarked he must withdraw completely. It must be timely. He must make it known to the others that he was withdrawing and he must, by such acts and words as may be appropriate, do what he reasonably can to dissuade the others from continuing with the unlawful purpose.
He went on:
A person, by timely withdrawal and timely communication of intention to do so can abandon the common purpose and cease to bear criminal responsibility for what his former co-offenders thereafter do.
Upon the appeal the direction to the effect that a person in Tietie’s position was required to take reasonable steps to undo the effect of his previous encouragement and participation was the subject of complaint by his counsel. It was said that too much was required by way of countermand.
Lee J, with whose reasons Mathews and Loveday JJ agreed, referred to White v Ridley and in particular to the judgment of Gibbs J, to which I have already referred. (As seen, White v Ridley was a case of importation by use of an innocent carrier.) Having quoted extensively from the judgment of Gibbs J, Lee J said he was content to apply the approach there taken to the current case. Thus, the appeal was dismissed. It can be seen that the principle applied by the New South Wales Court was a rather more stringent one than expressed in the English decision of Whitefield and the Canadian decision of Whitehouse.
In R v Rook [1993] 1 WLR 1005 the English Court of Appeal dismissed the appeal of a man convicted for murder. He had been recruited by another to carry out the murder of a woman and he himself recruited a further man to assist. Plans were made to accomplish the killing but, on the day, the appellant did not present himself to play his part. The crime was carried out without his assistance.
In discussing the appellant’s contention that he had withdrawn from the enterprise the Court referred to Croft, Whitehouse and Becerra. It was held that the appellant’s absence on the day did not amount to unequivocal communication of his withdrawal. He did not advise the others of his intention not to take part. The Court dismissed the appeal.
I turn then to the decision of the divisional court in R v Mitchell & King. The appeals were against convictions for murder. An incident began in a restaurant at Bradford. Mitchell’s brother, Matthew, and the appellant King, assaulted customers inside the restaurant. Matthew also damaged the restaurant itself. They were followed out by the proprietor and his sons and some staff. Fighting broke out and King was beaten. Bystanders joined in. One of the proprietor’s sons was kicked in the head, stamped upon and beaten with a stick. He suffered brain damage which led to his death. Mitchell’s defence included a contention that if he joined the joint enterprise he withdrew before the fatal injuries were inflicted. King’s case was that he tried to act as a peacemaker but was attacked and defended himself.
The trial judge had told the jury that once an accused had begun his participation, he could only withdraw by making it clear to his associates that he was withdrawing and that must have happened before the fatal blow was struck. The trial judge had adopted the statement of principle by Sloan JA in Whitehouse. The divisional court distinguished Whitehouse, saying that communication of withdrawal was only necessary in cases of pre-planned violence. It was not necessary where, as here, the violence was spontaneous. Accordingly, the appeals were allowed.
This decision attracted criticism by Professor K J M Smith: Withdrawal in Complicity: A Restatement of Principles [2001] Crim LR 769 at 775. He doubted the justification for drawing a “hard and fast distinction” between spontaneous and pre-planned violence. Professor David Lanham in Criminal Laws in Australia (The Federation Press, 2006) at 555 – 556 was also critical of this distinction. He suggested the case should not be followed in Australia. (See also the commentary in [1999] Crim LR 496, 497.)
I turn to the decision of the Court of Appeal in R v O’Flaherty, a decision upon which the appellant expressly relied.
A group of young men, known as the “Peckham Boys” travelled from Peckham to Luton, ostensibly to hear a band play at a nightclub. When they arrived the concert was almost over. Afterwards there was a confrontation in Chapel Street involving the trading of blows between the Peckham Boys, including the victim and the appellant’s group who had emerged from the club. One of the appellant O’Flaherty’s friends was pursued along Flowers Way by a number of men, one of whom wielded a stick. O’Flaherty determined to go to his friend’s assistance and for that purpose took a cricket bat from the car in which he had arrived. Soon after O’Flaherty and the victim came to blows. The appellant Toussaint joined in, as did the appellant Ryan. The incident then moved from Flowers Way into Park Street West. The victim was seen on security footage in the middle of the street on the ground surrounded by a number of men. O’Flaherty, still holding a cricket bat, could be seen approaching him but not touching him. Ryan and Toussaint had not moved into Park Street West. By this time the victim had received severe injuries, being stab wounds, slash wounds to his face and a fractured skull. It could not be determined which of them caused death or whereabouts the fatal injuries had been inflicted. The Court upheld the appeals of Ryan and Toussaint on the basis that there was no evidence from which it could be inferred that Ryan and Toussaint were involved in the affray beyond Flowers Way. Since there was no evidence that any injury causative of death was inflicted whilst they were still involved, there was no case for them to answer on the charge of murder: [65]. O’Flaherty’s appeal was dismissed. He was present still carrying the cricket bat as the group attacked the victim in Park Street West. The inference that he was at least providing encouragement to the victim’s attackers or that he was prepared to lend support in the attack was irresistible.
The Court acknowledged the force of the decisions in Whitehouse, Becerra, and Whitefield: [60]. It noted that these authorities contained no reference to a requirement that reasonable steps must be taken by the withdrawing person to prevent the crime. The Court followed the decision in Mitchell & King and distinguished cases of spontaneous violence from those concerned with joint enterprise and pre-planned violence. The Court said that Mitchell & King “shows that in a case of spontaneous violence in principle it is possible to withdraw by ceasing to fight, throwing down one’s weapons and walking away”. The Court said:
[63]For these reasons a defendant who effectively disengages or withdraws before the fatal injury is or injuries are inflicted is not guilty of murder because he was not party to and did not participate in any unlawful violence which caused the fatal injury or injuries. We consider that the question whether or not the violence formed one evolving incident or was two separate and discreet incidents is only relevant in helping to decide whether a particular defendant disengaged before the fatal injury [was caused]. …[t]he issue of disengagement or withdrawal may be no more than a consideration of the scope of the joint enterprise.
The Court went on:
[65]In a case of spontaneous violence such as this where there has been no prior agreement the jury will usually have to make inferences as to the scope of the joint enterprise from the knowledge and actions of the individual participants.
As earlier observed, there was no evidence that Ryan and Toussaint were present in Park Street West where it was likely the victim sustained his fatal injuries.

Like Mitchell & King, O’Flaherty has been subjected to criticism. James Richardson, editor Criminal Law Week (Issue 14 April 5, 2004) described the court’s ready acceptance of what was said in Mitchell & King as “highly controversial”. In a brief case note, David Cowley observed that the distinction between spontaneous violence and pre-planned assistance was new. He expressed the view that “it may still be open to question whether it should be enough for disassociation for the accused in a joint enterprise to simply walk away”: David Cowley, Joint Enterprise – Withdrawal (1999) 63 J Crim L 538, 539. Similarly, Andrew Ashworth, Vinerian Professor at Oxford University has been critical of both Mitchell & King and O’Flaherty, noting that the sharp distinction drawn in the former between planned and spontaneous violence as a basis for a different rule establishing what is required to effect withdrawal was not supported by authority. In respect of the latter case, Professor Ashworth was critical of the artificial approach of inferring a joint enterprise from spontaneous actions by those present and then focussing on determining its scope as a means of determining criminal responsibility; as opposed to considering the issue of withdrawal.
The High Court quite recently considered the question of withdrawal, but it did so in a context which does not allow direct application to the present appeal. The decision concerned the law relating to illegality in tort: Miller v Miller (2011) 242 CLR 446. The plaintiff had taken a motor vehicle illegally and driven it away. Then the plaintiff allowed the defendant to assume control of the car and he drove it at speed and dangerously. The plaintiff, being concerned at the manner of driving, twice asked the defendant to let her out of the car, but he refused. As a result of the dangerous driving the car crashed and the plaintiff was seriously injured and another passenger killed. The defendant’s liability for damages for the plaintiff’s injuries was denied on the basis that no duty of care was owed to the plaintiff, she having suffered her injuries in the course of an illegal enterprise in which she had been complicit.
The plaintiff succeeded in the High Court. The majority found that, in terms of the relevant state law governing criminal responsibility, the plaintiff had effected a withdrawal from the prosecution of the unlawful purpose of illegally using the vehicle. Accordingly, even if the plaintiff’s complicity in the illegal use and (under statute) her constructive complicity in the dangerous driving meant that the defendant initially owed her no duty of care, he could no longer disclaim such a duty, once her participation in and criminal responsibility for his crimes was at an end.
The provision under consideration concerning withdrawal was s 8(2) Criminal Code (WA). It required both communication to the co-offender by words or conduct of the withdrawal as well as the taking of all reasonable steps to prevent the commission of the unlawful purpose. The majority held that since in the circumstances no such reasonable steps were available to the plaintiff, her communications to the defendant were sufficient: [104].
Although Heydon J was in dissent, two observations made by his Honour are of interest. First, Heydon J described the section under consideration as providing a regime similar to, but less demanding than the common law. The common law required, additionally, steps to undo the effect of the previous participation: [127]. In support of that proposition Heydon J cited the judgment of Gibbs J in White v Ridley. (The majority made no reference to the common law.) Second, in his summation of an argument that might have been put by the defendant, Heydon J observed that “there are some enterprises which once embarked on, give no opportunity for instant withdrawal”. In such cases, he said, even clear communication of withdrawal might not have immediate effect: [129].
In any event, since the case turned on the interpretation of the Western Australian statute, it has no direct application to the present matter.
It is neither necessary nor appropriate to attempt an overarching statement of the principles which emerge from this review of the authorities. It is enough to make the following observations.
What will suffice in terms of withdrawal from a joint enterprise or from a situation which a defendant has counselled and procured or aided and abetted a crime will vary markedly from case to case. It will involve an assessment of what was reasonable and practical in the circumstances. The more the defendant has done by way of planning or providing information or items to enable completion of the crime, the more is likely to be required of him by way of withdrawal or countermand, if he is to avoid criminal responsibility. In some cases, particularly where the participation or aiding and abetting is spontaneous, withdrawal by leaving the scene, especially when coupled with advice or other indication to those who remain of the abandonment, or with the effluxion of time, might be sufficient. However, with respect to those who have expressed a contrary view, I do not agree that there is any distinction in point of principle between cases where there is a pre-existing agreement to commit the crime in cases of spontaneous participation, such as by aiding and abetting. It is a matter of fact and degree. Therefore I do not consider that Mitchell & King and O’Flaherty should be followed in this Court. Also, while there might seem to be a degree of incongruence in introducing questions of causation to an aiding and abetting situation, it seems clear that withdrawal could be demonstrated where the secondary party’s encouragement has been “spent”, even where there was no communication.
Returning to the argument in the instant case, I would reject Mr Algie’s proposition, said to be based on O’Flaherty, to the effect that a person’s criminal responsibility necessarily ends at the point where he ceases to aid and abet. This over simplifies the position. I also reject criticisms of the judge’s finding that the appellant’s encouragement of Fenney’s dangerous driving was still “operating” at the time of the collision. Had the appellant braked, slowed down and turned left, say, a minute before the collision, then the situation may well have been otherwise. However, given the judge’s finding that the collision occurred within a matter of seconds of the appellant’s preparation to turn left, and that there was no signal or other communication by the appellant to Fenney of the decision to abandon the race, I consider the judge’s finding to the effect that the appellant bore criminal responsibility for the results of Fenney’s dangerous driving was well open to her.
In my view the criticisms of the judge’s analysis and findings are misplaced.
This ground of appeal must fail.
Argument against findings of causation (proposed ground 2)
The appellant renewed his application for permission to appeal on this ground, permission having been refused by a single judge of this Court.
The proposed ground arises from statements made by the judge in her reasons for verdict at [152] and [153]. There, the judge was addressing the matter of causation. There had been some evidence to the effect that, at the relevant time, there had been a bush growing in the centre of Torrens Road near its junction with Audley Street. For drivers waiting to turn right into Audley Street it impeded their view of city bound traffic on Torrens Road. It was agreed that subsequently the council removed that tree, having received several complaints from road users about the danger created by it.
I propose to set out the passage of the reasons about which complaint is made, highlighting the particular statements which are said to disclose error.
[151]It is not necessary for the prosecution to prove that the dangerous driving of Mr Fenney was the sole cause of the collision leading to death or injury. It is sufficient if the prosecution prove that the dangerous driving was a substantial cause.
[152]It might be that a reasonable and careful driver who was driving that night at the speed limit might also have collided with the Toyota Corolla. However the fallacy in the line of reasoning advanced by Mr Algie in support of the submission that therefore the driving of Mr Fenney was not a substantial cause of the collision, is the assumption that the Toyota Corolla would inevitably have turned right at the very moment when the blue Subaru entered the intersection. The preponderance of the evidence supports the conclusion that Ms Smith, having waited for Mr Watkins’ vehicle to pass, a car which she had no difficulty in seeing and waited for, would have also seen the blue Subaru had he approached the intersection at a safe rate of speed. It was the rapid rate of speed at which Mr Fenney approached that intersection which also effectively deprived Ms Smith of any opportunity to react and take evasive action. There seems to be little doubt that the presence of the overhanging bush obstructed the view of each of the oncoming drivers at least for a short period; however I repeat Ms Smith had no difficulty in sighting and waiting for Mr Watkins’ oncoming vehicle which was travelling in the same lane as the blue Subaru.
[153]I am in no doubt that Mr Fenney’s speed effectively deprived both him and Ms Smith of any opportunity to stop, slow down or take any effective evasive action and avoid the collision.
Mr Algie’s complaint in relation to the first highlighted sentence is that allowing that a reasonable and careful driver (in Fenney’s position) might also have collided with the victim’s motor vehicle is inconsistent with a finding that Fenney’s driving was a substantial cause of the accident. In relation to the second and third highlighted sentences, the complaint is that there was no evidence to support such conclusions.
As I understand the first argument it is that, absent a conclusion that but for Fenney’s driving the accident would not have happened, there could be no conclusion that his driving was a substantial cause of the accident. A rather similar and in my view equally fallacious argument was put and rejected in R v Leaf-Milham (1987) 47 SASR 499 at 503-504. As the observations made by the trial judge in her reasons demonstrate, had Fenney not been driving at excessive speed then the driver of the Toyota, Ms Smith, would have had more time to see his approaching vehicle and make a judgment as to whether it was safe to proceed. Similarly, had Fenney been travelling at no more than the speed limit he would have had more time to take evasive action, even if the Toyota driver imprudently turned in his path. It is not necessary for the prosecution to go further and prove that, were that additional time available, a collision would not have occurred, or, if it occurred, would not have been fatal. I think the point being made by the judge in the first highlighted sentence is simply that even if the Toyota driver was in some degree blameworthy (or even if the tree played a part in obscuring Fenney’s approach) that would not preclude a finding that Fenney’s driving was a substantial cause of the death.
In relation to the other highlighted sentences, Mr Algie argued that there was no expert evidence called to prove that there was a nexus between Fenney’s elevated speed and the collision. He put by way of analogy that in cases where alcohol intoxication is said to have played a role in causing a collision, evidence is often called about the effect on a person’s capacities of the relevant level of intoxication.
In my view the judge was entitled to conclude on the evidence as it stood that it was the speed at which Fenney approached the intersection which was a substantial cause of the collision. The judge had evidence from a number of eye witnesses, including from the driver of the Toyota who said she did not, despite keeping a proper lookout, see Fenney’s car approaching. As a matter of commonsense, the judge was entitled to find that Fenney’s speed was a substantial cause. There was no need for expert evidence on that topic; indeed apart from providing calculations of speed and distance and evidence of reaction times and the time taken to slow or stop a vehicle, it is hard to see what expert evidence could properly have been called. To a large degree those are matters involving basic calculations and common experience.
I do not consider that this ground raises a reasonable argument. Like the single judge, I would refuse permission to appeal.
The unreasonable verdict argument
The appellant further submitted that the verdict was “unsafe and unsatisfactory and against the weight of the evidence”. The essence of that argument was that the trial judge was wrong to accept the evidence of two witnesses, namely Mr Kozuszko and Mr Petruzzelli to the effect that the two Subarus were racing, in preference to the evidence of other witnesses, particularly Mr Watson and Mr Hamilton who saw only one car. It was put that the judge failed to scrutinise the infirmities in the evidence of the first two witnesses, and that she was wrong to reject aspects of the latter two witnesses’ accounts which were said to be capable of casting doubt on whether the appellant was involved in the collision at all.
On appeal, the task of this Court, as stated in M v The Queen (1994) 181 CLR 487, and reiterated in R v Nguyen (2010) 242 CLR 491, is to consider whether “the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead [it] to conclude that, even making full allowance for the advantages enjoyed by the [trier of fact], there is a significant possibility that an innocent person has been convicted”. In performing that task “[t]he question is one of fact which the court must decide by making its own independent assessment of the evidence and determining whether, notwithstanding that there is evidence upon which a jury might convict, ‘none the less it would be dangerous in all the circumstances to allow the verdict of guilty to stand’”: M v The Queen at 492-493.
Upon the hearing of the appeal, Mr Algie focussed on what he called the four principal eyewitnesses. At the time of their critical observations, Kozuszko and Watkins were each driving along Torrens Road, toward the city. Watkins, who was driving ahead of the appellant (and must have been ahead of Fenney), made all his observations through his rear vision mirror. Kozuszko, who was driving behind him, was overtaken by the two Subarus; he observed the cars both behind and in front of him. Petruzzelli and Hamilton, who worked together at Trident Plastics, the premises of which faced Torrens Road, were sitting in an alcove of that factory facing Torrens Road having an evening break. The thrust of Mr Algie’s argument was that the judge failed to appreciate not only weaknesses in the evidence of Kozuszko and Petruzzelli, but also important inferences from the evidence of Watkins and Hamilton, all of which, coalesced to support a reasonable possibility that only Mr Fenney had been speeding.
First, it was submitted that the judge failed to analyse critically, and to recognise the flaws in, the accounts of Kozuszko and Petruzzelli. In relation to Petruzzelli, it was complained that the judge gave insufficient weight to aspects of his evidence in chief and to prior inconsistent statements, both of which were said to indicate he had only ever seen and heard one car. It was submitted that the judge should have concluded from those inconsistencies that Petruzzelli’s reconstruction of events was tainted by information he obtained subsequently.
During cross-examination, it was put to Petruzzelli that consistent with his statement to police at the scene, he might have seen only a single car. He refuted that suggestion, being adamant that he had seen two cars “neck and neck”. He explained that his initial statement may not have included reference to the second car because at the time he gave it he was distraught, having just come from assisting the accident victims. The judge reproduced this section of cross-examination in her reasons. It is to be noted that Petruzzelli’s steadfast claim that his first statement was wrong in this respect meant that there was no evidence that he saw other than two cars racing.
The portions of Petruzzelli’s evidence-in-chief to which Mr Algie pointed, when read in context, make clear that Petruzzelli was relating his impressions as they occurred to him. Initially those impressions were based on sound. It was only when the cars came into view that he realised there were two of them. Given that he described the noise as being very loud, and that the cars were the same make, it is unsurprising that, until they were in sight, he thought he was only hearing a single engine. I consider the judge was entitled to rely on this evidence.
It was submitted that the evidence of Kozuszko was wholly unreliable due to a number of established errors. His evidence was that he had been travelling in the same direction as the appellant and had seen both Subarus overtake him at speed. After seeing the collision he stopped and assisted. He made some notes of the event after having arrived at work. It was established during cross-examination that he was incorrect on certain issues, and that in making his notes he had made certain assumptions about how the collision had ultimately occurred.
Mr Algie drew attention to a number of infirmities in this evidence. Firstly, Kozuszko said that the appellant’s car was in the right-hand lane and Fenney’s to the left. As the judge acknowledged, that was plainly wrong: [31] and [72]. Then, Kozuszko conceded he was unsure as to matters of distance and exact speed of the cars once they were in front of him, and that in making his notes he had made a number of assumptions about the way the collision had occurred and the movements of the appellant’s car after the collision. The judge acknowledged these concessions. However, as the judge noted at [31] and [32], none of those mistakes cast doubt on Kozuszko’s observation that the two cars had overtaken him at speed and continued abreast ahead of him. Although he was uncertain of their speed, he was capable of making an approximation of it by reference to his own: [33] and [36]. That was the only evidence of Kozuszko upon which the judge relied in concluding that the appellant was racing.
Mr Algie also argued that her Honour failed to give effect to what were said to be exculpatory inferences based on Watkins’ and Hamilton’s evidence. It was submitted that the judge should have found that Watkins’ evidence that he saw only one set of headlights was consistent with the appellant’s case that he was not racing prior to the collision. Mr Algie pressed the Crown’s concession at trial that Watkins could be seen as an impressive witness. Further, he submitted that although Watkins was likely wrong about which lane Fenney’s car was travelling in, that mistake was immaterial and did not justify rejecting all his evidence.
However, that was not the only difficulty affecting Watkins’ evidence. The judge also considered that his observations were made exclusively through the rear-vision mirror at a time when he was also watching the road ahead and traffic alongside him. Further, the judge noted that Watkins’ observation of only one car approaching from behind was necessarily wrong, as at least Kozuszko and the appellant were following him. Given those difficulties, and the clear evidence from witnesses with a better view, it is not surprising that the judge did not act on this evidence. The concession of prosecuting counsel as to Watkins’ credibility could not bind the judge any more than it could diminish these difficulties attending his evidence.

Mr Algie further submitted that Hamilton’s evidence of hearing and seeing only a single car moments before the collision should have been accepted, particularly since it resonated with Watkins’ observation of a single car. As mentioned, Hamilton and Petruzzelli were sitting in an alcove facing on to Torrens Road. Hamilton was sitting on a step and Petruzzelli on a milk crate. The judge considered that, because Hamilton’s view was more limited than Petruzzelli’s, Hamilton’s sighting of only a single car was not significant. Indeed, Hamilton himself accepted that because of their relative positions Petruzzelli would have seen more. It is important to note that the judge attended a view, during which the witnesses’ various vantage points were seen. In my opinion, these are examples of factual findings that this Court should be slow to disturb. The points made by Mr Algie were also made to the judge and dealt with by her. The judge gave comprehensive reasons for preferring the evidence of certain witnesses. Having conducted the independent assessment of the evidence required by M v The Queen, I have no misgivings about the way in which this evidence was evaluated, or about the safety of the verdicts.
The conviction for leaving the accident scene
This ground of appeal raises a matter of law. It attacks the finding of guilt of the offence of leaving the accident scene after causing death by dangerous driving, an offence created by s 19AB Criminal Law Consolidation Act 1935 (SA) and drawing on s 43 Road Traffic Act 1961 (SA) (“RTA”). It was argued that the appellant could not properly be found guilty of the offence as he was outside the ambit of s 43 RTA, not being “the driver of a vehicle involved in an accident…”. Mr Algie argued that only the drivers of the two vehicles which came into collision were involved in the accident. He put that, being a penal provision, s 43 had to be read narrowly.
It is necessary to set out the relevant parts of the provisions. The offence is created in these terms:
19AB—Leaving accident scene etc after causing death or harm by careless use of vehicle or vessel
(1)A person who—
(a)     drives a vehicle or operates a vessel without due care or attention; and
(b)     by that conduct, causes the death of another; and
(c)     fails to satisfy the statutory obligations of a driver of a vehicle or an operator of a vessel (as the case may be) in relation to the incident,
is guilty of an offence.
…
The relevant statutory obligation is found in s 43(1) RTA:
43—Duty to stop, give assistance and present to police where person killed or injured
(1)The driver of a vehicle involved in an accident in which a person is killed or injured must—
(a)     immediately after the accident—
(i)stop the vehicle; and
(ii)give all possible assistance; and
(b)     not more than 90 minutes after the accident, present himself or herself to a police officer at the scene of the accident or at a police station for the purpose of providing particulars of the accident and submitting to any requirement to undergo a test relating to the presence of alcohol or a drug in his or her blood or oral fluid.
Penalty:
(a)     imprisonment for 5 years; and
(b)     disqualification from holding or obtaining a driver's licence for such period, being not less than 1 year, as the court thinks fit.
(2)…
(3)It is a defence to a charge of an offence against subsection (1) to prove that—
(a)     the defendant was unaware that the accident had occurred and that the defendant's lack of awareness was reasonable in the circumstances; or
(b)     …
In her reasons the judge set out the relevant statutory provisions, and from them drew and enumerated the elements of the offence charged. There is no challenge to the correctness of that analysis.
In interpreting what was encompassed by the expression “involved in an accident” the judge drew on dictionary definitions of the verb “to involve”, as follows at [190]:
To cause to be inextricably associated or concerned, as in something embarrassing or unfavourable.
To implicate, as in guilt or crime, or in any matter or affair.
The judge then stated:
[191]In my view the finding of guilt against the accused on the first four counts involves the inevitable finding that the accused was connected by participation as an aider and abetter in the offences committed by Mr Fenney.
[192]I find therefore that he was also a driver of a vehicle involved in the accident in which a person was killed and three persons injured. …
In other words the judge considered that the finding that the appellant was involved in the accident effectively flowed from the finding (already made) that the appellant aided and abetted the other offences in which Fenney was the principal in the first degree. Therefore, the judge reasoned, the appellant was the “driver of a vehicle involved in an accident”. The judge found the other elements of the offence made out.
I agree with the judge’s analysis. It is clear that involvement in an accident need not take the form of coming into collision with another vehicle or the persons killed or injured. If there were any doubt about that, s 43(3)(a) assuages it. (In fact in this case it was common ground that the appellant was aware of the accident). As a matter of commonsense there is no reason why several drivers of vehicles cannot be involved in the same accident some colliding with another car and some not. The essence of involvement is the connection or association or concern in the accident. In my view, it would be perverse to find that although the appellant aided and abetted Fenney’s dangerous driving (and vice versa) he was not the driver of a vehicle involved in the accident which directly resulted from that dangerous driving.
This ground is not made good.
Appeal against sentence
The appellant also appeals against the sentence imposed upon him. He contends that the sentence is manifestly excessive when regard is had to the sentence imposed on the co-offender, Fenney. That submission is made notwithstanding that the appellant was liable for sentence for the additional offence of leaving the accident scene after causing death by dangerous driving.
The relevant maxima applicable to the offences common to both offenders were, for the causing death offence and the causing serious harm offence, 15 years imprisonment and licence disqualification of not less than 10 years, and for each of the two offences of causing harm by dangerous driving a sentence of five years imprisonment and disqualification for one year or more. The maximum penalty for the offence of leaving the accident scene committed only by the appellant was 15 years imprisonment and licence disqualification for at least 10 years.
The judge sentenced both Fenney and the appellant on the same day. In the case of the appellant the judge utilised s 18A of the Criminal Law (Sentencing) Act 1988 (SA) to impose one sentence for all offences, being a sentence of four and a half years imprisonment. The judge indicated a starting point for the offences common to both offenders of three and a half years imprisonment. The non‑parole period was fixed on the basis of the view taken by the judge (and promoted by counsel on both sides) that the mandatory minimum of “four-fifths the length of the sentence”: s 32(5)(ba) applied only to the notional period of three years imprisonment which the judge said she would have imposed for the causing death offence, had it stood alone. I shall say more of this approach a little later. The non-parole period attributable to that offence, once the mandatory minimum proportion was applied, was about 28.8 months. The final non-parole period was one of 30 months. The judge expressed the view that the appellant and Fenney were equally culpable for the accident and resultant death and injuries. The judge remarked on the differences in the circumstances of the co-offenders, noting that the appellant was not entitled to credit for pleas of guilty, that he was to be sentenced for an additional serious offence and that, unlike in Fenney’s case, the mandatory minimum non‑parole period would apply.
Fenney was sentenced to a period of imprisonment of two years and nine months with a non-parole period of 12 months. For the offences common to both the judge indicated the same starting point of three and a half years imprisonment before deducting nine months on account of Fenney’s pleas of guilty. In Fenney’s pleas of guilty the judge found “special reasons” for fixing a non-parole period shorter than the mandatory minimum: s 32A(2) and (3) Sentencing Act.
The argument on behalf of the appellant was, in essence, that although due allowance had to be made for the differences in the circumstances of the two men, the sentences imposed showed an undue disparity. Mr Algie argued that the judge should have ameliorated the harshness of the final disparity, which had its root principally in the relevant sentencing legislation, by reducing the appellant’s sentence, particularly having regard to the fact that the appellant was not the principal in the driving offences and had, on the judge’s findings, pulled out of the race at the time of the collision. His argument, as I understood it, was that the power available to reduce a sentence by reference to the totality principle could have been utilised to achieve a more just relationship between the sentences of the appellant and Fenney.
The parity principle has been discussed in a number of High Court cases; most recently in Green v The Queen; Quinn v The Queen (2011) 86 ALJR 36; [2011] HCA 49. Its importance was stressed, again, in Green at [28] by French CJ, Crennan and Kiefel JJ:
Consistency in the punishment of offences against the criminal law is “a reflection of the notion of equal justice” and “is a fundamental element in any rational and fair system of criminal justice”. It finds expression in the “parity principle” which requires that like offenders should be treated in a like manner. As with the norm of “equal justice”, which is its foundation, the parity principle allows for different sentences to be imposed upon like offenders to reflect different degrees of culpability and/or different circumstances.
(Citing Lowe v The Queen (1984) 154 CLR 606 and Postiglione v The Queen (1997) 189 CLR 295).
I consider the judge was entitled to take the view that the culpability for the common driving offences was the same for each offender. Neither the finding that the appellant pulled out of the race seconds before the collision, nor the fact that Fenney and not the appellant collided with the vehicle containing the victims necessarily called for any discrimination in terms of penalty. In a sense, both facts were accidents of history.
It is true that there is a marked difference in the sentences to be served by the two offenders. However, as already observed, that is a function of first, the reduction in Fenney’s head sentence on account of his pleas of guilty, second the judge’s finding in Fenney’s case that special reasons existed for fixing a non-parole period shorter than the prescribed period and, to a lesser extent, the additional offence of the appellant.
It is the clear policy of the law to encourage and reward pleas of guilty. I consider it would have been unfair to deprive Fenney of the credit the judge considered he was entitled to expect for his pleas. Alternatively, to use a lower starting point in the appellant’s case just to bring the final sentences closer would have been itself a departure from principle. To the extent that the greater non‑parole period fixed in the appellant’s case was dictated by statute, the appellant’s argument is attended by difficulty. Had the judge striven to reduce the difference in the non‑parole periods it would have been at the cost of giving full recognition to the will of Parliament. It is not suggested by the appellant that his liability to the separate penalty for failing to stop should not have been reflected in his overall penalty.
In conclusion, I find that the different outcomes were dictated by the differences in applicable policy consideration and statutory provision. There is a marked difference in the final outcomes, but no relevant disparity. The appeal against sentence should be dismissed.
Before leaving this topic I make an additional observation about the interpretation of s 32 of the Sentencing Act. In my view there is a respectable argument that where s 18A is utilised, and the mandatory minimum non‑parole period is a proportion rather than a figure, then the proportion must apply to the whole of the head sentence. That may not seem a just result, but it might be dictated by the terms of s 32. Parliament contemplated a situation in which a person might be sentenced for one or more offences attracting a mandatory minimum non‑parole period, as well as other offences. Section 32(5a) applies. It relevantly provides:
(5a)If—
(a)     a court sentences a person under section 18A to the 1 penalty for a number of offences; and
(b)     a mandatory minimum non parole period is prescribed (mandatory period) in respect of any of those offences,
any non parole period to be fixed by the court under that section—
(c)     must be a period not less than the mandatory period prescribed in respect of the relevant offence; and
(d)     if there is more than 1 such offence in respect of which a mandatory period is prescribed—must be a period not less than the greater of any such mandatory period; and
(e)     [irrelevant].
The argument to which I refer runs as follows. It can be seen that subsection (5a)(c) requires that the non-parole period fixed by the judge is to be “not less than the mandatory period prescribed in respect of the relevant offence”. The mandatory period prescribed for the relevant offence (causing death by dangerous driving) is “four-fifths the length of the sentence”: s 32(5). Because only one sentence was being imposed for all offences, the proportion could only be applied to that sentence. Therefore, returning to the wording of subsection (5a), the non-parole period to be fixed by the Court under s 18A had to be a period of not less than four-fifths of the length of the (total) sentence. Reading the subsection as requiring the mandatory minimum proportion to be applied only to the sentence attributable to the relevant offence requires the construction of a fiction, to the effect that a head sentence has been fixed for the relevant offence alone. The whole point of s 18A is that a single penalty taking into account multiple offences can be fixed.
As I said, this perceived difficulty only arises where the mandatory minimum is a proportion, rather than a fixed period. Because of the contrary position put to the judge by both sides and accepted by her, it is not necessary to decide whether there is any force in this argument.
Conclusion
The orders I would make are:
1.permission to appeal on ground 2 is refused.
2.the appeal against conviction is dismissed.
3.the appeal against sentence is dismissed.
ANDERSON J. I agree with the orders proposed by Vanstone J and I agree with Her Honour’s reasons