R v Thach

Case [2010] SASCFC 16

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v THACH; R v CHAU

[2010] SASCFC 16

Judgment of The Court of Criminal Appeal

(The Honourable Chief Justice Doyle, The Honourable Justice Gray and The Honourable Justice White)

30 July 2010

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN - OTHER MATTERS

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE  - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE

CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - DANGEROUS DRIVING - DANGER TO PUBLIC

CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - SENTENCE - CULPABLE OR DANGEROUS DRIVING CAUSING BODILY HARM - SOUTH AUSTRALIA

Prosecution appeal against a single sentence imposed on the respondent Thach for the offence of the causing of harm by dangerous driving, contrary to s 19A(3) of the Criminal Law Consolidation Act 1935 (SA) (CLCA), and for the offence of failing to stop and render assistance in contravention of s 19AB(2) of the CLCA.

Whether sentence so low as to erode the standards of penalty appropriate for the offences and likely to impair public confidence in the administration of justice - whether a plea of guilty entered by an aider and abettor of an offence was inconsistent with the acquittal of the principal offender.

Held:  sentence of the trial Judge manifestly inadequate, having regard to the serious nature of the offences, and to the need for deterrence - plea of guilty not inconsistent with acquittal of the principal - the respondent re-sentenced (by majority) to imprisonment for two years and six months with a non-parole period of 20 months - sentence suspended.

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE  - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE

Chau sentenced for driving in a manner dangerous to the public, contrary to s 46(1) of the Road Traffic Act 1961 (SA) - appeal against the licence disqualification of five years - whether disqualification from driving was manifestly excessive.

Held:  Whilst severe, the sentence was not manifestly excessive.

Criminal Law Consolidation Act 1935 (SA) s 19A, s 19AB(2), s 340, s 353; Criminal Law Consolidation (Serious Vehicle and Vessel Offences) Amendment Act 2005  (SA) ; Road Traffic Act 1961 s 43(1)(b), s 46(1), s 46(2); Statutes Amendment (Vehicle and Vessel Offences) Act 2005 (SA) s 9(6); Criminal Law (Sentencing) Act 1988 (SA) s 18A, referred to.
R v Dube & Knowles (1987) 46 SASR 118; Dinsdale v The Queen [2000] HCA 54, applied.
R v Darby (1982) 148 CLR 668; R v Johnston (1985) 38 SASR 582, discussed.
R v Jongewaard [2009] SASC 346; R v Deane (1996) 88 A Crim R 36; R v Thompson (1975) 11 SASR 217; R v Major (1988) 70 SASR 488; R v Symonds [1999] SASC 217; R v Waugh [2005] SASC 470; R v Osenkowski (1982) 30 SASR 212; Everett…

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R v Thach [2010] SASCFC 16
Case
[2010] SASCFC 16
Decision Date

CaseChat Overview and Summary

This matter concerned appeals against sentences imposed on Vichat Thach and Quang Minh Chau, who were charged on the same information with causing harm by dangerous driving and leaving the scene of an accident. Thach pleaded guilty to both charges, while Chau was found guilty of the lesser offence of driving in a manner dangerous to the public. The appeals were heard by the Full Court of the Supreme Court of South Australia, comprising Doyle CJ, Gray and White JJ.

The primary legal issue before the court was whether the sentence imposed on Thach was manifestly inadequate, particularly in light of significant amendments to the Criminal Law Consolidation Act 1935 (SA) and the Road Traffic Act 1961 (SA) that substantially increased penalties for such offences. The court was required to consider the impact of these amendments and determine if the original sentence adequately reflected the seriousness of Thach's offending and served the purposes of punishment and general deterrence. A secondary issue concerned Chau's appeal against the licence disqualification period imposed for his conviction.

The court found that the sentence of 12 months imprisonment, suspended on Thach's entering into a recognisance, was manifestly inadequate and failed to maintain adequate standards of punishment and general deterrence. The judges reasoned that the suspension of the sentence would erode necessary deterrent standards and that the punishment imposed did not bear a proper proportion to the seriousness of the offending, which caused serious harm to an innocent victim. The court emphasised that despite Thach's good character and rehabilitation prospects, his conduct was criminal and serious.

Consequently, the Full Court allowed the Director's appeal against Thach's sentence. The original sentence was set aside, and Thach was resentenced to four years and six months imprisonment, with a non-parole period of one year. The court declined to suspend this sentence and imposed concurrent 10-year licence disqualifications for both offences. Chau's appeal against his licence disqualification was not detailed in the provided text, but the court's focus was on the significant increase in Thach's sentence.

Orders

Orders of the court

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Background

Background to the litigation

In 2005, significant amendments to the Criminal Law Consolidation Act 1935 (SA) and the Road Traffic Act 1961 (SA) were enacted, following on recommendations of the Kapunda Royal Commission. The amendments addressed matters of great concern to the Government and the public – the need for changes to the laws dealing with the causing of injury or death by dangerous driving, and leaving the scene of an accident. The amendments substantially increased the available penalties. These appeals give rise to the need to consider the impact of the amendments. Background The defendant and appellant, Quang Minh Chau, and the defendant and respondent, Vichat Thach, were both charged on the same information with the offence of causing harm by dangerous driving. Chau was charged as a principal and Thach as an aider and abettor. Thach was also charged with the offence of leaving an accident scene after causing harm.[1][1] First CountStatement of OffenceCausing Harm by Dangerous Driving. (Section 19A(3) of the Criminal Law Consolidation Act, 1935).Particulars of OffenceQuang Minh Chau on the 9th day of February 2008 at Burton, drove a motor vehicle recklessly or at a speed or in a manner which was dangerous to the public and thereby caused serious harm to [the victim].Vichat Thach on the 9th day of February 2008 at Burton, was present, aiding, abetting, counselling or procuring Quang Minh Chau to commit the said crime.Second CountStatement of OffenceLeave Accident Scene After Causing Harm. (Section 19AB(2) of the Criminal Law Consolidation Act, 1935).Particulars of OffenceVichat Thach on the 9th day of February 2008 at Burton, drove a motor vehicle in a manner which was dangerous to the public and thereby caused harm to [the victim], and failed to satisfy the statutory obligations of a driver of a vehicle in relation to the incident. Both Chau and Thach entered pleas of not guilty. However, Thach subsequently entered pleas of guilty to both counts. Chau was found, by jury verdict, to be not guilty of the charge of causing harm by dangerous driving, but guilty of the alternative offence of driving in a manner dangerous to the public.[2] [2] Pursuant to section 46(1) of the Road Traffic Act 1961 (SA). As a consequence of his pleas, Thach stood to be sentenced on the basis of conviction of the more serious offence of causing harm by dangerous driving, in addition to the count of leaving the scene of the collision after having caused harm.[3] [3] Contrary to section 19AB(2) of the Criminal Law Consolidation Act 1935 (SA). Section 19AB(3)(a) stipulates that a person fails to satisfy the statutory obligations of a driver of a vehicle in relation to an incident if the person commits an offence against section 43 of the Road Traffic Act 1961 (SA) in relation to the incident. That section outlines a duty to stop and render assistance when involved in a collision. On 9 February 2008, at or about 7.00pm Chau and Thach were both driving high powered vehicles in the same direction on Port Wakefield Road, Burton. They arrived side by side at a red light intersection. It is apparent that on leaving the intersection, the men engaged in a race. The vehicles travelled side by side in separate lanes attaining a speed of approximately 140 kilometres per hour. This was 50 kilometres per hour in excess of the applicable speed limit of 90 kilometres per hour.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

To allow the suspension of Thach’s imprisonment to stand would erode the standards of punishment that are necessary to operate as a deterrent to persons who are inclined to drive in a dangerous manner causing serious harm, and are inclined to flee the scene of the accident having caused harm. In the circumstances of the present case, having regard to the particularly serious nature of the offending, as evidenced by the increasingly serious penalties prescribed by Parliament, the suspension of Thach’s sentence is such as to shock the public conscience. The punishment imposed by the Judge did not bear proper proportion to the seriousness of the offending. Despite the previous good character of Thach and his prospects of rehabilitation, it must be emphasised that his offending was criminal and of a serious nature. His offending caused serious harm to an innocent stranger. The penalty imposed must reflect these matters. In my view, despite the rigorous approach required to the application of the “rare and exceptional” test when considering interference with a suspension of sentence, that test is satisfied in this case. Conclusion I would grant the Director permission to appeal. I would allow the appeal. I would set aside the sentence imposed by the District Court Judge. I would sentence Thach pursuant to section 18A of the Sentencing Act to the one sentence of imprisonment of four years and six months. I would fix a non-parole period of one year. I would decline to exercise the discretion to suspend the sentence. I would disqualify Thach from holding or obtaining a driver’s licence in respect of the causing harm by dangerous driving offence for a period of 10 years. I would also disqualify Thach from holding or obtaining a driver’s licence for a period of 10 years in respect of the offence of failing to stop at the scene of an accident. I would direct that the disqualifications operate concurrently. Appeal by ChauSubmissions Chau appealed against the five year licence disqualification imposed by the Judge on the basis that that period was manifestly excessive. Counsel did not seek to challenge the suspended term of imprisonment of 12 months imposed by the sentencing Judge. It was submitted that as a consequence of the jury acquitting Chau of the primary charge, he fell to be sentenced on the basis that he engaged in a drag race for a relatively short period of time on a dual highway with a speed limit of 90 kilometres per hour. It was emphasised that the consequences and the seriousness of those consequences could not be taken into account with respect to Chau due to the finding of guilt by the jury on the lesser charge. Counsel pointed out that the licence disqualification imposed of five years was five times greater than the mandatory minimum stipulated in the legislation. It was further highlighted that a period of three years is stipulated as the minimum term to be fixed for a subsequent offence. It was contended that this provides guidance as to the appropriate range for a first offender and suggests that the five year term imposed was manifestly excessive. Counsel submitted that the term of five years was not proportionate to the actual offending conduct.

Ratio Decidendi

Legal Principle Established

Passengers travelling on the bus with which Chau’s vehicle collided received minor injuries. Consideration of Head Sentence and Non-Parole Period The two offences to which Thach pleaded guilty each attract a maximum period of imprisonment of 15 years together with, in each case, a minimum licence disqualification for a period of 10 years.[19] [19] Criminal Law Consolidation Act 1935 (SA) sections 19A(3), 19AB(2). It is immediately apparent that the Judge was in error in imposing the two year licence disqualification in relation to the offence of leaving the scene of the accident after causing harm. However, as the two year disqualification was to operate concurrently with the 10 year disqualification imposed with respect to the section 19A offence, this error did not have any significant impact. Having regard to the nature of the offending conduct and the personal antecedents of Thach as set out above, I consider that the sentence of 12 months imprisonment imposed pursuant to section 18A of the Sentencing Act, being the one sentence in respect to both offences, was inadequate and manifestly so. The reduction from 24 months to 12 months was too great. But in any event the notional starting point of 24 months was totally inadequate. In my view, the sentence imposed on Thach of 24 months reduced to 12 months, was such that it failed to maintain adequate standards of punishment and general deterrence for the offences to which he pleaded guilty. Although it was not inappropriate to utilise section 18A of the Sentencing Act to impose the one sentence, this is a case where in my view, separate notional sentences should have been identified.[20] The offences are distinct and involve different criminal and moral culpability. [20] R v Major (1998) 70 SASR 488 (Doyle CJ, Olsson & Williams JJ). Section 340 of the Criminal Law Consolidation Act outlines the court’s powers and duties on an appeal against sentence,[21] and relevantly provides that if on an appeal against sentence the court is satisfied that the sentence should be quashed and another sentence, whether more severe or otherwise, imposed, the court must impose the sentence that should have been imposed in the first instance. In relation to the determination of appeals, section 353 of the Criminal Law Consolidation Act further provides:[21] Section 340 of the Criminal Law Consolidation Act 1935 (SA) provides:Despite any other rule of law, if on an appeal against sentence the court is satisfied that the sentence should be quashed and another sentence (whether more severe or otherwise) imposed, the court must—(a)impose the sentence that should have been imposed in the first instance; and(b)order that the sentence—(i) will be taken to have come into effect on a date before the date of the order; or(ii) will take effect on a date on or after the date of the order.(4) Subject to subsection (5), on an appeal against sentence, the Full Court must—(a) if it thinks that a different sentence should have been passed—(i)quash the sentence passed at the trial and substitute such other sentence as the Court thinks ought to have been passed (whether more or less severe); or(ii)quash the sentence passed at the trial and remit the matter to the court of trial for resentencing; or(b) in any other case—dismiss the appeal.(5) The Full Court must not increase the severity of a sentence on an appeal by the convicted person except to extend the non-parole period where the Court passes a shorter sentence.