R v Thach - [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 v The Queen (1994) 181 CLR 295; R v Nemer (2003) 87 SASR 168; Day v Conn (1979) 22 SASR 372; Malvaso v The Queen (1989) 168 CLR 227; R v Malvaso (1990) 156 LSJS 152; R v HM (2007) 168 A Crim R 557; R v Hicks (1987) 45 SASR 270; DPP v Stone (1994) 63 SASR 297; R v Hayes (1987) 29 A Crim R 452; R v Taddeo (1993) 67 A Crim R 338; R v Rossi (1998) 142 LSJS 451, considered.

R v THACH; R v CHAU
[2010] SASCFC 16
Court of Criminal appeal: Doyle CJ, Gray and White JJ

DOYLE CJ: In each appeal I agree with the orders proposed by White J, and with the reasons that he gives. There is nothing that I wish to add.
GRAY J:
These two sentence appeals were heard together.
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 Count
Statement of Offence
Causing Harm by Dangerous Driving. (Section 19A(3) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Quang 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 Count
Statement of Offence
Leave Accident Scene After Causing Harm. (Section 19AB(2) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Vichat 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.
As a consequence of a slower moving vehicle in his lane, Thach swerved into the lane in which Chau was travelling. Chau lost control of his vehicle, veered to the right, slid across a dirt median strip and hit a ditch in the middle of the median strip. Chau’s vehicle became airborne, barrel rolled through the air, came into collision with the side of a bus on the opposite side of the highway and then crashed onto a vehicle travelling beside the bus. Significant injuries were caused to the driver of the crushed vehicle.
Thach observed the loss of control of Chau’s vehicle. Although he did not see the vehicle collide with the bus, Thach was aware that a collision had occurred. He did not stop to render assistance at the scene of the collision. He continued to travel on Port Wakefield Road.
Port Wakefield Road was straight, level, free of any debris or obstacles and in good condition. The weather conditions were fine and dry. There was nothing about the victim’s vehicle or the manner in which that vehicle was driven that would have contributed to or caused the collision. There were no factors which contributed to the collision other than the conduct of Chau and Thach.
Sentences Imposed
The sentencing Judge considered the seriousness of Chau and Thach’s conduct and made the following observations with respect to both:
There are a number of aggravating factors common to each case which I must have regard to. Both of you were driving high-powered cars and were travelling at perilously high speeds. You engaged in a drag race on a busy main road at a time when other road users were present, heightening the risk of an accident. In doing so, each of you acted in disregard for the welfare of other road users, and created a danger for other road users which was unacceptable.
I must also consider the issue of general deterrence which is of particular importance in this case. I am mindful of the need to impose a penalty which is not just a personal deterrent but will also act as a deterrent to others who might be minded to drive in a similar manner. All of the offences before the court are very serious. Offending of this character is unfortunately far too prevalent amongst young men driving high-powered vehicles of the kind that each of you were driving.
The Judge made the further following observations in relation to the personal circumstances of Thach:
I now turn to consider the personal circumstances of each of you. Vichat Thach, you are 19 years old. Your family migrated from Cambodia in 1987. Your parents own a market garden and you have helped in the family business since you were young. You continue to do so. You provide support and assistance to your family and in turn have the strong support of your family.
You initially pleaded not guilty to the charges. However, you changed your plea at a relatively early stage. You subsequently cooperated fully with police investigations and also gave evidence as a prosecution witness at the trial of Mr Chau. I accept that this is motivated, at least in part, by your contrition and accordingly you are entitled to credit for both your plea and your cooperation. I accept that you are extremely remorseful. Whilst you do have one previous conviction for aggravated assault, your previous record is not a bad one. I note you have completed the bond and community service requirements arising out of that earlier conviction. I do not consider that offence to be particularly relevant for present purposes. In particular you do not have a bad driving record. You have kept out of trouble since the accident and I accept that your prospects of rehabilitation are positive. Your counsel said, and I accept, that you have learnt your lesson.
and Chau:
Quang Minh Chau, you are 27 years old. You were born in Vietnam and migrated to Australia with your family at the age of four. Ironically you came to Australia for the purpose of receiving medical treatment for injuries suffered in a motor vehicle accident. You had a strict upbringing and performed well in school. You began tertiary studies in 2005 and intend to complete a double degree in commerce and commercial law. Your studies have been suspended pending resolution of this matter. I have read a number of letters from your colleagues and family members which attest to your general good character. You are described as gentle, polite, and a compassionate person. An employer speaks highly of you. It is clear that you come from a strong, supportive and stable family.
I accept the submission of your counsel that the disqualification of your licence will affect both yourself and your family. I have taken into account the letter of apology which you wrote to the victim and her family.
The Judge than made the following general observation:
In each case, having regard to material before me, I accept that the offending is out of character and that it is unlikely that either of you will reoffend, particularly given the licence disqualifications which the court must impose.
With respect to Thach, the Judge fixed the one sentence of imprisonment of 12 months, reduced from 24 months on account of Thach’s pleas of guilty and cooperation. A non-parole period of nine months was fixed. The Judge also ordered that Thach be disqualified from holding or obtaining a driver’s licence for a period of 10 years in relation to the offence of causing harm by dangerous driving and for a period of two years in relation to the offence of leaving the scene of the accident after causing harm. The Judge ordered that the two periods of disqualification operate concurrently.
With respect to Chau, the Judge fixed a sentence of imprisonment of 12 months. A non-parole period of nine months was fixed. The Judge ordered that Chau be disqualified from holding or obtaining a driver’s licence for a period of five years. The Judge made the following remarks in relation to the sentence imposed on Chau:
Mr Chau, the jury at your trial could not have been satisfied beyond reasonable doubt that your driving caused the injuries to the victim. However, the evidence establishes that you were racing at about 140 km/h on a public highway and you did not have sufficient experience to maintain control of your vehicle. I accept the evidence of the witness… as to the manner in which you lost control of your vehicle. There was no collision between the two vehicles. The inference is that because of inexperience you panicked when [Thach’s vehicle] swerved.
Your offending is at the most serious end of the scale for the offence of which you have been convicted.
I am unable to give you credit for a plea of guilty. Sadly, your attitude throughout indicates that you have yet to acknowledge that there was anything wrong with your driving. Your failure to understand just how bad your driving was is a matter of concern. You have written to the victim and apologised but you have still not acknowledged how bad your driving was.
The Judge considered it appropriate in each case to suspend the periods of imprisonment imposed on entry into good behaviour bonds by Chau and Thach. He noted that notwithstanding the need for general deterrence:
…I have decided by the narrowest possible margin that the sentences should be suspended. In each case I have taken into account the defendant’s relative youth, their previous good records and the fact that each of them is unlikely to reoffend. They are both on the road to rehabilitation and the prospects are that they will both become worthwhile citizens.
Legislative Scheme
Section 19A(3) of the Criminal Law Consolidation Act outlines the offence of causing harm by the dangerous use of a vehicle, to which Thach pleaded guilty. That section relevantly provides that a person who drives a vehicle in a culpably negligent manner, recklessly, or a speed or in a manner dangerous to the public, and by that culpable negligence, recklessness or other conduct, causes harm to another, is guilty of an indictable offence. The maximum penalty for a first offence that is a basic offence, is stipulated to be 15 years’ imprisonment, with a minimum disqualification from holding or obtaining a driver’s licence for 10 years. It is to be noted that an aggravated first offence under section 19A(3) attracts a maximum penalty of life imprisonment.
Section 46 of the Road Traffic outlines the offence of reckless or dangerous driving, of which Chau was found guilty. That section relevantly provides that a person must not drive a vehicle recklessly or at a speed or in a manner which is dangerous to the public. The maximum penalty prescribed for an offence against section 46 is imprisonment for two years, and in the case of a first offence, a minimum licence disqualification of 12 months or, in the case of a subsequent offence, a minimum licence disqualification of three years.
It is to be noted that in considering whether an offence under section 46 has been committed, the court must have regard to: the nature, condition and use of the road on which the offence is alleged to have been committed; the amount of traffic on the road at the time of the offence; the amount of traffic which might reasonably be expected to enter the road from other roads and places; and, all other relevant circumstances, whether of the same nature as those mentioned or not.[4]
[4] Section 46(2)(a)-(d) of the Road Traffic Act 1961 (SA).
Sections 19A of the Criminal Law Consolidation Act and 46 of the Road Traffic Act were amended in 2005 by the enactment of the Criminal Law Consolidation (Serious Vehicle and Vessel Offences) Amendment Act 2005 (SA). The enactment of that Act followed on recommendations of the Kapunda Royal Commission.[5] The second reading speech introduced the amendments as follows:[6]
The Bill deals with a matter of great concern to the Government and the public. The recent outcry about penalties imposed in prominent road accident cases, and one in particular, has highlighted the need for changes to the laws dealing with causing death by dangerous driving and leaving the scene of an accident.
The Government finds it abhorrent that a person could kill or seriously injure another in an accident and then drive off without stopping to provide assistance and pay so little by way of a penalty. The law must reflect the serious nature of such action and ensure penalties are sufficient. We must deter people who think about shirking their responsibilities.
[Emphasis added]
[5] South Australia Kapunda Road Royal Commission, Report of the Kapunda Road Royal Commission, (2005).
[6] South Australia, Parliamentary Debates, Legislative Council, 24 November 2005, 3213 (The Hon P Holloway).
Of particular relevance to the within proceedings are the increased penalties introduced for motor vehicle offences. The second reading speech addressed the proposed amendment to section 19A, causing death or harm by the dangerous use of a vehicle, as follows:[7]
This clause amends the penalties applying to offences under section 19A and extends the application of the section to cover use of vehicles and vessels generally. Currently, the penalty for causing death or serious harm by driving a motor vehicle is, for a first offence, imprisonment for 10 years and licence disqualification for 5 years or more and for a subsequent offence, imprisonment for 15 years and licence disqualification for 10 years or more. This is to be varied as follows:
for a first offence that is a basic offence involving use of a motor vehicle or motor vessel, the penalty will be imprisonment for 15 years and, if the offence involves a motor vehicle, licence disqualification for 10 years or more;
for a first offence that is an aggravated offence, or for any subsequent offence, involving use of a motor vehicle or motor vessel, the penalty will be imprisonment for life and, if the offence involves a motor vehicle, licence disqualification for 10 years or more;
…
The penalties for causing harm, other than serious harm, by driving a motor vehicle and for causing harm by driving a vehicle other than a motor vehicle are to be increased under provisions of the Statutes Amendment and Repeal (Aggravated Offences) Bill and this clause does not further increase those penalties, other than to introduce the concept of an aggravated first offence for causing non-serious harm by driving a motor vehicle. The aggravated first offence will carry the same penalty as is prescribed for a second or subsequent such offence. …
[7] South Australia, Parliamentary Debates, Legislative Council, 24 November 2005, 3215 (The Hon P Holloway).
It is to be noted that the amendments also increased the penalty for reckless and dangerous driving pursuant to section 46 of the Road Traffic Act, to two years imprisonment. The penalty for a first offence at that time was a fine of not less than $300.00 and not more than $600.00. In increasing the maximum penalty, the Minister stated that imprisonment should be an option for a first offence: [8]
The Government has reconsidered this penalty in light of the recommendations made in the Kapunda Road Royal Commission and accepts that the penalty should be increased and that imprisonment should be an option for a first offence. The new maximum penalty of two years imprisonment reflects a large increase but the Government believes this is justified when it is viewed against the potentially drastic consequences that such driving can cause.
[Emphasis added]
[8] South Australia, Parliamentary Debates, Legislative Council, 24 November 2005, 3215 (The Hon P Holloway).

The increase in penalties introduced by the amending Act demonstrated the growing awareness of the seriousness of driving offences. The increase in penalties reflected the recognition that those who drive in a manner that causes harm or the risk of harm to others, ought to be appropriately punished. The scope for punishment was increased to allow the range or scale of seriousness of conduct to be addressed, as it was recognised that the culpability of those involved in collisions may be similar or even greater than those who cause harm to others by committing traditional offences against the person. It is important to take into account the increase in penalties introduced in 2005 and the reasons for their introduction, when assessing the sentences imposed with respect to both Chau and Thach in the within proceeding.
In addition to significantly increasing the penalties relating to the causing of death or harm by the dangerous use of a vehicle or vessel, the amending legislation introduced section 19AB, creating a specific offence in relation to leaving an accident scene after causing death or harm by the careless use of a vehicle or vessel. That section relevantly provides that a person is guilty of an offence if they drive a vehicle without due care or attention and by that conduct, cause physical harm to another, and fail to satisfy the statutory obligations of a driver of a vehicle in relation to the incident. The relevant statutory obligation in the circumstances of this case is that outlined in section 43 of the Road Traffic Act, whereby a driver of a vehicle involved in an accident in which a person is killed or injured must immediately after the accident stop their vehicle and give all possible assistance. The maximum penalty prescribed for an offence against section 19AB(2) where the physical harm caused to a person amounts to serious harm is imprisonment for 15 years in the case of a first offence or imprisonment for life for a subsequent offence. A disqualification from holding or obtaining a driver’s licence for a minimum of 10 years is prescribed.
The second reading speech discussed the introduction of this provision:[9]
This provision is squarely aimed at drivers or operators who cause an accident resulting in death or physical injury, but who do not stop and provide all possible assistance to the victim. This is not to say that people must stop and perform first aid when they are not qualified to do so. Rather, they must take steps to assist a dead or injured person directly, or by obtaining expert help, for example, by calling police or an ambulance or emergency services. Such an action could save a life, minimise the extent of the injury and improve the chances of recovery.
A failure to observe these basic steps is reprehensible. The applicable maximum penalty must reinforce the public’s view that failure to fulfil these obligations is a serious breach of the law. The maximum penalty for a first offence, where death or serious harm results, will be imprisonment for 15 years, and disqualification from holding a driver’s licence for five years or such longer period as the court orders. The maximum penalty for any subsequent offence will be imprisonment for life and disqualification from holding a driver’s licence for 10 years or such longer period as the court orders.
The penalties in the new section generally reflect those applicable to the basic offences of causing death or serious harm by dangerous driving under section 19A.
[9] South Australia, Parliamentary Debates, Legislative Council, 24 November 2005, 3213 (The Hon P Holloway).
The introduction of section 19AB emphasised the obligations, and expanded the possible consequences for failing to meet those obligations, of a driver involved in a collision. Section 19AB provided more serious penalties for failing to meet the obligations existing under section 43 of the Road Traffic Act, requiring a driver of a vehicle involved in a collision where someone is killed or injured to stop and give all possible assistance. It is to be noted that the amending legislation also increased the penalty applicable under section 43 of the Road Traffic Act from a maximum penalty of $5,000.00 or imprisonment for one year, to imprisonment for five years.
Again, the appropriate penalty applicable with respect to the failure of Thach to stop and render assistance in the within proceeding is to be assessed in the context of the introduction of a provision specifically designed to combat particular behaviour, which is deemed to be unacceptable, by those involved in collisions. It is in the above context that the sentence imposed by the Judge is to be considered.
Seriousness of the Offences
The actions of Thach and Chau in racing each other on Port Wakefield Road are of a particularly serious nature. The actions of deliberately “dragging” each other may be characterised as being at the most serious end of the scale for offences of this nature. The actions of an individual who drives at an excessive speed may be contrasted with the actions of those people who race each other at high speed, where the very nature of the drag race results in a gross lack of attention being paid to their driving, the road and other, law-abiding, road users. The nature of a drag race means that the attention of the participants will be focused on “beating” their competitor. Furthermore, the nature of a drag race results in two or more vehicles travelling at excessive speeds, rather than a single vehicle, with an associated increase in risk for other road users. It is clear that a driver reaching excessively high speeds in tandem with a second driver, where both drivers are focused on the actions of each other rather than the road and traffic, constitutes a materially greater risk to other road users.
It is apparent, particularly among young men, that being entitled to drive a vehicle on a public road is often not treated with appropriate seriousness. Instead, amongst some, a culture has developed where the entitlement to drive is abused, and individuals recklessly endanger the lives of themselves and others by participating in activities such as drag racing. The actions of those who deliberately choose to race each other at excessive speeds, in addition to being extremely dangerous, can be properly described as self indulgent. Those actions are of particular concern when they are undertaken in high-powered vehicles.
It is a societal fact that there is a problem with high-powered vehicles being available to those who do not have the necessary experience nor the maturity to appropriately manage the associated responsibilities and risks. However, while that availability continues, drivers must be aware of the consequences that follow in the event of an incident occurring such as that the subject of the within proceeding. As emphasised by the sentencing Judge, the need for a sentence to provide general deterrence is a significant consideration.
Although a collision resulting from the actions of drivers dragging each other may not necessarily be foreseen, the risk ought to be readily apparent. It is to be observed that where a collision occurs as a result of such activities, it is difficult to characterise that collision as accidental. The following remarks made in support of the amendments in the second reading debates with respect to the amending Act, are apposite:[10]
…There is a trend in traffic safety research to refer to collisions rather than accidents, and there is a reasoned position that all collisions between vehicles or between vehicles and pedestrians or cyclists are the result of human error. Where a driver is impaired through the consumption of drugs or alcohol, driving while angry, racing or indulging in that appalling self-indulgent behaviour known as road rage, all these things are indications of someone who is not treating driving with appropriate seriousness.
Similarly, collisions caused through inattention while lighting a cigarette, fiddling with the radio, sending text messages on a mobile phone, talking on a mobile phone, arguing with other occupants of the vehicle, or doing anything that distracts attention from the fundamental activity of driving the vehicle in a calm and safe manner, all these things are indications that the event was anything other than an accident. I would be prepared to entertain an argument that contributing factors like these would be to varying degrees evidence of reckless endangerment: a basic willingness to expose a random stranger to the dangers of a hurtling tonne or more of steel and glass.
[10] South Australia, Parliamentary Debates, Legislative Council, 24 November 2005, 3309 (The Hon I Gilfillan).
Although it is true that often those involved in collisions where death or serious harm result do not have an associated antecedent record which speaks of general criminal or otherwise antisocial behaviour, the true nature of the dangerous driving must always be kept in mind when considering an appropriate sentence. As characterised in the passage above, reckless driving such as racing, demonstrates a “basic willingness to expose a random stranger to the dangers of a hurtling tonne or more of steel and glass”. The contemptibility of such behaviour is acknowledged by the fact that it is considered to be criminal behaviour rather than mere driving offending, with the associated applicability of serious penalties.
Where a driver operates a vehicle at excessive speed with minimal attention being paid to the road and other road users, the vehicle becomes an uncontrolled, highly dangerous, object. Again, the seriousness of that activity and the moral culpability associated with an offence that arises from that activity, must be kept in mind when considering the adequacy of a sentence. It is to be reiterated that the enactment of the Statutes Amendment (Vehicle and Vessel) Offences Act and the increase in penalties thereby effected, is a recent recognition of that seriousness.
Appeal by Director against Thach
The Director sought to appeal against the sentence imposed on Thach, on the basis that the sentence failed to maintain adequate standards of punishment and general deterrence for offences involving dangerous driving and leaving the scene of an accident where harm is caused.
The Director did not seek to challenge the suspension of the sentence. In addition, there was no complaint about the 50% reduction made to the sentence of imprisonment imposed on Thach, on account of his pleas of guilty and cooperation. Ultimately, it was submitted that the sentence of imprisonment imposed on Thach was manifestly inadequate as a consequence of it having been arrived at from an inadequate starting point, rather than due to any error in the application of the discount of 50%.
The Director contended that the offences for which Thach stood to be sentenced were of a particularly serious nature. With respect to the section 19A offence, it was emphasised that the terms of that section meant that the sentence to be imposed on Thach was to take account not only of the driving conduct, but also the seriousness of the consequences that resulted. This approach was to be contrasted with that to be applied with respect to Chau who stood to be sentenced only in relation to the driving conduct without regard of the consequences of that driving, as he was found guilty of the less serious offence of driving in a manner dangerous to the public. Attention was drawn to the driving conduct of Thach itself and the consequences of that conduct, in highlighting that the offence was not at the lower end of the scale of seriousness.
In relation to the section 19AB offence, of leaving the scene of the accident, attention was drawn to the penalties applicable to that offence – a maximum of 15 years imprisonment. It was emphasised that Thach was best-placed to stop and render assistance, being unharmed following the incident. It was submitted that his reason for not doing so, being fear that the collision might be his fault, only served to emphasise the importance of a significant penalty to operate as general deterrence for those who might similarly fail to stop and render assistance due to fear and panic.
The Director contended that to permit the penalty for leaving the scene to be effectively subsumed within the liability for the dangerous driving offence, would undermine the seriousness of the offence of leaving the scene as emphasised by the serious maximum penalties which apply. It was submitted that a failure to separately impose a significant penalty for the separate offence might result in the view that no additional penalty applied with respect to leaving the scene.
Attention was drawn to the total penalty of 12 months imprisonment imposed on Chau for the lesser offence. It was suggested that the 12 months imprisonment represented the appropriate penalty for the dangerous driving component of the offending of both Chau and Thach. The Director contended that the additional 12 months imposed on Thach did not adequately take into account as required, the serious harm caused and the additional serious offence of leaving the scene. Ultimately, it was submitted that the offending conduct of Thach required a substantially greater sentence than that which was imposed.
Counsel for Thach contended that no error had been demonstrated in the sentencing Judge’s approach. It was accepted that the sentence was merciful. However, it was submitted that it was a sentence within the discretion of the Judge. Particular emphasis was placed on Thach’s youth, his personal antecedents and his prospects for rehabilitation. These matters were addressed in the earlier extracted remarks of the sentencing Judge.
Prosecution Appeals
The approach to be taken with respect to prosecution appeals is well established. In Nemer, Doyle CJ summarised those principles as follows:[11]
The Director's right to seek leave to appeal against sentence, and the court's power to interfere, are found in s 352(1)(a)(iii) of the Criminal Law Consolidation Act 1935 (SA). Similar provisions exist in other States.
The High Court has determined that the court should grant leave to the Director to appeal against sentence "only in the rare and exceptional case": Everett v The Queen (1994) 181 CLR 295.
The result of the principles established by the High Court is that, to obtain leave to appeal against sentence, the Director must do more than satisfy the court that an error may have occurred. The court cannot grant leave to appeal, with a view to increasing a sentence, merely because it appears that an error has been made. Leave to appeal should be granted only if the allowing of the appeal would advance some wider purpose, such as to give the court an opportunity to establish a principle of sentencing law or to establish or to maintain an adequate standard of sentencing for a particular offence or kind of offence (as distinct from simply correcting an error in a particular case). In other words, the High Court has held that leave to appeal should be granted to the Director only when the allowing of the appeal is necessary to enable the court to establish relevant sentencing principles. However, even when those purposes would not be served, the court can correct a particular sentence if the sentence is so far below the appropriate range of sentence that the sentence reflects an error of principle or would "shock the public conscience": see R v Osenkowski (1982) 30 SASR 212 at 212-213 per King CJ; Everett (at 300). Another way of expressing this point is to say that the court should not grant leave to appeal to the Director merely with a view to correcting a sentence that is too low. But if the sentence is so far below the appropriate standard that to allow the sentence to stand would shake public confidence in the administration of justice, then it may be appropriate to grant leave to appeal even though no general point of principle will be established by the case. There is a question of degree and a subjective assessment involved here, and that makes it difficult to apply this criterion.
[11] R v Nemer (2003) 87 SASR 168 at [22]-[24].
In Osenkowski,[12] King CJ observed that the proper role for prosecution appeals is to enable courts to establish and maintain adequate standards of punishment for crime; to correct the idiosyncratic views of individual judicial officers as to particular crimes or types of crime; and occasionally to correct a sentence which is so disproportionate to the seriousness of the crime as to shock the public conscience.[13]
[12] R v Osenkowski (1982) 30 SASR 212.
[13] R v Osenkowski (1982) 30 SASR 212 at 212-213.
The High Court in Everett[14] determined that the court should grant leave to the prosecution to appeal against sentence “only in the rare and exceptional case”. The majority in that decision explained that the basis for the “rare and exceptional” test lies with the principle of double jeopardy, observing:[15]
An appeal by the Crown against sentence has long been accepted in this country as cutting across the time-honoured concepts of criminal administration by putting in jeopardy for the second time the freedom beyond the sentence imposed.
[Footnote omitted]
Earlier, in Malvaso,[16] Deane and McHugh JJ noted that the prosecution appeal against sentence:[17]
… [R]epresents a departure from traditional standards of what is proper in the administration of criminal justice in that, in a practical sense, it is contrary to the deep-rooted notions of fairness and decency which underlie the common law principle against double jeopardy.
[References omitted]
These principles are to be remembered when considering the appeal by the prosecution against the sentence imposed on Thach by the Judge.
[14] Everett v The Queen (1994) 181 CLR 295.
[15] Everett v The Queen (1994) 181 CLR 295 at 299.
[16] Malvaso v The Queen (1989) 168 CLR 227.
[17] Malvaso v The Queen (1989) 168 CLR 227 at 234.
Impact on Victim
Before coming to consider the adequacy of the sentence imposed on Thach, it is appropriate to set out the impact of Thach’s dangerous driving on the victim of the collision. The seriousness of the consequence of Thach’s conduct was a relevant matter to be taken into account with respect to Thach’s sentence.[18]
[18] Section 19A of the Criminal Law Consolidation Act1935 (SA) relating to causing death or harm by the dangerous use of a vehicle or vessel expressly contemplates the consideration of the consequences of the dangerous driving.
The victim of the collision suffered serious injuries. The roof of her vehicle was removed in order to allow ambulance personnel to attend to her injuries and to assist with her extrication. The victim suffered multiple facial bone fractures. On presentation at hospital her face appeared “severely deformed”. She also suffered a wrist fracture.
The victim suffered a significant traumatic brain injury. She sustained multiple contusions and bleeding to her brain. She suffered a lung collapse and significant dental damage.
The victim was admitted to intensive care and intubated for several days. On 26 February 2008, the victim was discharged to the brain injury rehabilitation service. On transfer she was found to have continuing disabilities. As a consequence, she remained an inpatient until 1 April 2008.
Following discharge, the victim continued to suffer ongoing effects from her injuries, including impaired cognitive function, impaired balance, impaired left hand function, altered personality and behaviour, headaches, dizziness and fatigue. Her ongoing disabilities caused difficulties for her to return to driving. These ongoing disabilities impacted on her ability to return to both domestic and other duties. It is axiomatic that her ongoing disabilities impacted significantly on her daily life and family.
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.
I would commence with a notional sentence of four years imprisonment for the offence of causing harm by dangerous driving. Although not warranting the maximum available sentence, the conduct of Thach in driving at the speed and in the manner which thereby caused the harm to the victim, and the serious nature of that harm, resulted in his offending conduct being of a particularly serious nature and warranted a penalty in the order of four years imprisonment. I would commence with a notional sentence of two years imprisonment for the offence of leaving the scene of the accident after having caused harm. Again, although not warranting the maximum available sentence, the offending was serious. I would reduce each notional sentence by one quarter on account of the pleas of guilty and cooperation.
I would exercise my powers under section 18A of the Sentencing Act and impose the one sentence of four years and six months imprisonment. I would fix a non-parole period of one year. I accept that this is an unusually short non-parole period. However, the circumstances of the case justified this course. In particular, I refer to Thach’s youth, personal antecedents, prospects of rehabilitation and the acute nature of the double jeopardy to which he is exposed.
The Director did not seek to have the Court interfere with the two year licence disqualification imposed with respect to the offence of leaving the scene of the accident after causing harm, despite pointing out that the two year term imposed was in error.
With respect to licence disqualification I would impose a licence disqualification of 10 years with respect to each offence, in accordance with the minimum term stipulated in relation to both the offence of dangerous driving causing harm and that of leaving the scene of an accident having caused harm. Having regard to the immediate term of imprisonment that I would impose, it is appropriate to order that the periods of disqualification operate concurrently.
Consideration of Discretion to Suspend
On the hearing of the appeal, the Director did not challenge the suspension of the sentence of imprisonment. However, the Court’s sentencing discretion cannot be fettered by the attitude or stance taken by the prosecution; it is to be exercised in the public interest.
In Malvaso[22] in the context of a prosecution appeal against sentence, King CJ made the following remarks about the role of the prosecution in the sentencing process:
The prosecution has a role in the sentencing process which consists of presenting the facts to the Court and of making any submissions which it thinks proper on the question of what sentence ought to be imposed. The decision as to what sentence is to be imposed is, however, entirely a matter for the Court which may, of course, be influenced by the arguments that are placed before it by the prosecution as well as by the defence, but must never be influenced by the attitudes or opinions as distinct from the arguments of either. In particular it must be stressed that the attitude of the prosecution towards a particular proposed course of action in relation to sentence is, as such, irrelevant; the view of the prosecution has no greater weight than the arguments advanced in support of that view. These propositions are elementary and fundamental propositions relating to the administration of criminal justice by independent courts… .
King CJ further noted that the view of the prosecution as to certain relevant circumstances may be significant. For example, the views of the Attorney-General that the prevalence of certain types of crime were of concern in the community or the prosecution’s views as to the value of assistance given by an offender to the authorities. However, King CJ emphasised that these matters were merely factors to be taken into account by the court in assessing the appropriate punishment to be imposed and that ultimately the court should not be influenced by the views expressed by the prosecution
[22] R v Malvaso (1989) 50 SASR 503 at 509-510.
In that case, the prosecution had promised Malvaso that as a consequence of his assistance to the authorities and in the administration of justice, the prosecution would “stand mute” in relation to the question of whether his sentence should be suspended – that is, the prosecution made no submissions to the sentencing judge upon the question of suspension. On appeal against sentence, the prosecution again did not make any submissions regarding suspension. In concluding that suspension was not appropriate, King CJ made the following further remarks:[23]
The prosecution, consistent with its neutral attitude resulting from its deal with Malvaso, did not make suspension of the sentence a ground of complaint on the appeal. Nevertheless it is this Court's responsibility to decide the question for itself once the sentence is re-opened in consequence of the prosecution appeal and I consider that it is the Court's duty to decline to suspend. I would allow the prosecution appeal against the sentence on Malvaso. …
[23] R v Malvaso (1989) 50 SASR 503 at 511.
Malvaso applied for special leave to appeal to the High Court. During the argument before that Court, it was discovered that leave to appeal had not been separately considered or granted by the South Australian Court of Criminal Appeal, in addition to that Court having proceeded on an incorrect premise with respect to the relevancy of statutory remissions when fixing the term of imprisonment. The High Court granted special leave to appeal, allowed the appeal, set aside the orders made by the Court of Criminal Appeal and ordered that the matter be remitted for determination in accordance with the judgment of the High Court.
It is to be observed, that in overturning the decision in Malvaso, the majority of the High Court, Mason CJ, Brennan and Gaudron JJ, recognised that although the bargain between Malvaso and the authorities was a relevant circumstance in determining whether leave to appeal should be granted, that bargain did not affect the duty of the Court to impose a sentence which it considered appropriate:[24]
…The prosecution's bargain to stand mute when a suspended sentence was sought on behalf of the applicant was carried into effect and the prosecution was thus compromised in its presentation of the arguments which might otherwise have led the learned sentencing judge to impose a sentence against which the Attorney-General would not have sought leave to appeal. That is not to say that the agreement between the prosecuting authorities and the applicant affected the duty either of the sentencing judge or of the Court of Criminal Appeal (if leave to appeal were given) to impose the sentence which appeared appropriate to the Court in the circumstances. The Court's sentencing discretion is to be exercised in the public interest; it cannot be fettered by a plea-bargaining agreement. Nor can such an agreement bind the Attorney-General not to exercise his statutory power to seek leave to appeal and to appeal in any case where, in his opinion, the proper administration of criminal justice requires that power to be exercised. Nevertheless, if an agreement between the prosecuting authorities and an offender has affected the course of proceedings before the sentencing judge and the course of proceedings is relevant to the order which should be made on the Attorney-General's application for leave to appeal, the Court may have regard to those circumstances in determining whether leave to appeal should be given. In this case, the Court did not consider that question and no order giving leave to appeal was made. …
[Emphasis added]
[24] Malvaso v The Queen (1989) 168 CLR 227 at 233.
The minority of the Court, Deane and McHugh JJ made similar remarks:[25]
There is obvious room for some divergence of opinion about the significance of the fact that the applicant had been induced to provide information and otherwise to co-operate with the prosecution by a prosecution undertaking to the effect that the Crown would, on his plea of guilty, say nothing at all on the question whether any sentence of imprisonment should be suspended. As King CJ forcefully points out in his judgment, it is fundamental to our notions of what is proper and desirable in the administration of criminal justice that the distinction between the role of the Attorney-General and those who assist him or her in the prosecution of crime and the role of the courts be maintained and carefully observed. It would, however, seem plain that those involved in the prosecution of the applicant did not purport to speak on behalf of the courts or to represent that the absence of any stated objection or opposition on the part of the prosecution to the suspension of any sentence of imprisonment would unduly influence the sentencing judge. It was, in our view, unfortunate that the prosecution should have fettered its ability to assist the sentencing judge by undertaking in advance to "stand mute" on any topic which was relevant to the sentencing process. Otherwise, the main effect of the undertaking to "stand mute" on the question of suspension of sentence was to focus attention upon what was of true significance in the sentencing process, namely, the fact that the applicant had provided vital and reliable information and assistance in the prosecution of a corrupt senior police officer involved in the organized production and distribution of drugs. That fact was a powerful consideration favouring exceptional leniency in the sentence imposed upon the applicant. …
[25] Malvaso v The Queen (1989) 168 CLR 227 at 238-239.
On remittal of the matter to the Court of Criminal Appeal, the majority of the Court refused leave to appeal.[26]
[26] R v Malvaso (1990) 156 LSJS 152.
King CJ in the minority considered that the minimum appropriate sentence was a four year term of imprisonment, but considered that the three year term imposed was manifestly inadequate, being significantly below that lowest appropriate sentence. King CJ further considered that the silence of the prosecution as to suspension had no bearing upon the grant of leave to appeal based upon the inadequacy of the length of sentence. Accordingly, King CJ considered it appropriate to resentence and in doing so, fixed an unsuspended term of imprisonment.[27]
[27] R v Malvaso (1990) 156 LSJS 152 at 156-157.
The majority considered that the leave application needed to be determined on the basis of the grounds on which that application was made, which in that case was merely the length of the sentence and not the suspension of that sentence. The majority considered that although a four year term was the minimum prison term that should have been imposed in that case, rather than the three year term imposed, the Court would not grant leave for the purpose of increasing a sentence on a prosecution appeal by such a small margin. The observations of the majority do not make clear whether, if they had considered the margin between the sentence imposed and that which they considered appropriate to be wide enough to warrant interference with the sentence, they would have proceeded to impose an unsuspended custodial term.[28]
[28] R v Malvaso (1990) 156 LSJS 152 at 158 (Cox J), at 164 (Perry J).
In Nemer, Doyle CJ made the following further observations in relation to the sentencing process, citing with approval King CJ in Malvaso:[29]
In sentencing an offender the court must act according to law. The court must reach its own conclusion on the factual basis on which sentence is to be passed, and must exercise its own judgment and discretion in arriving at the appropriate sentence. As has been said, the court exercises its power and makes its decision acting in the public interest: Malvaso v The Queen (1989) 168 CLR 227 (Malvaso). The Director of Public Prosecutions has a duty to assist the court in the sentencing process. In the discharge of that duty the Director puts submissions to the court, but those submissions are merely matters to be considered by the court, to be given such weight as they deserve. The court is not bound in any way by the submissions of the Director, nor is the Director’s attitude to a given case a matter that should influence the court: R v Malvaso (1989) 50 SASR 503 per King CJ. …
[Emphasis added]
[29] R v Nemer (2003) 87 SASR 168 at [28].
The observations of both King CJ and Doyle CJ clearly articulate that the exercise of the court’s discretion in sentencing is entirely independent from the attitude of the prosecutor. Although it may be of assistance to the court for a prosecutor to inform the court whether or not the discretion to suspend is available, the exercise of that discretion is entirely with the court.
As earlier observed, prosecution appeals are generally only entertained in “rare and exceptional cases”.[30] In particular, the appellate court will generally be reluctant to interfere with a suspension of imprisonment on a prosecution appeal.
[30] Everett v The Queen (1994) 181 CLR 295.
In HM,[31] in the context of a prosecution appeal against suspension, the Full Court noted that where an offender has been given a non-custodial or suspended sentence, the appellate court would be particularly reluctant to interfere and impose a sentence of immediate imprisonment. The following remarks of King CJ in Hicks were adopted:[32]
When a person … has been told that he will not have to go to prison, a great load is lifted from his mind. The consequences of reversing that intimation could be devastating.
[31] R v HM (2007) 168 A Crim R 557 (Gray J, with whom Duggan and White JJ agreed).
[32] R v Hicks (1987) 45 SASR 270 at 273; as cited in R v HM (2007) 168 A Crim R 557 at [18] (Gray J); see also R v Hayes (1987) 29 A Crim R 452 at 469 (Kirby P).
It was observed in HM, that accordingly:[33]
…a Crown appeal against suspension of sentence should be approached with great care, and the “rare and exceptional” test should be rigorously applied. …
[33] R v HM (2007) 168 A Crim R 557 at [19].
Those same remarks of King CJ in Hicks were adopted by Olsson J in the earlier decision of Stone, where his Honour observed:[34]
Moreover, on an appeal of this nature, as the learned Chief Justice stressed in the same case:
"…the special considerations relating to prosecution appeals referred to in cases such as R v Wilton (1981) 28 SASR 362 at 363-364; R v Osenkowski (1982) 30 SASR 212; and R v Drewett (1983) 35 SASR 344 assume particular importance. As has been pointed out in those cases, prosecution appeals fall to be decided on somewhat different considerations than appeals by persons under sentence. When a person such as the present respondent has been told that he will not have to go to prison, a great load is lifted from his mind."
In practical terms a prosecution appeal places such a person in a situation of double jeopardy; and it is only in the clearest of cases, demanding such action, that this Court ought to grant leave to appeal: Malvaso v The Queen (1989) 168 CLR 227 at 234; R v Wait (1991) 161 LSJS 357.
[Emphasis added]
[34] DPP v Stone (1994) 63 SASR 297 at 307.
In Stone, despite the reluctance of the Court to interfere with the suspension on appeal, the Court considered it appropriate to do so in the circumstances of the case. In arriving at that conclusion, Olsson J drew attention to the above matters which inform the Court’s reluctance to interfere, before observing:[35]
In this matter …counsel for the respondent, has properly stressed all of these considerations and has pleaded, with great sincerity, that it would be inappropriate to overturn the merciful approach which was adopted by the learned sentencing judge, particularly having regard to the character evidence before the court, the young age of the respondent, his history of hard work, his timely pleas of guilty and the devastating physical and psychological impact which the accident has made upon him.
There is no doubt that all of these factors personal to the respondent merit careful consideration and proper recognition. Indeed they have clearly been reflected in the modest head sentence and non-parole period fixed by the learned sentencing judge.
…
I am driven to the conclusion that so serious were the offences in this case that mitigating factors of a personal nature necessarily had to be subordinated to considerations of general and personal deterrence. To do otherwise was to transmit an erroneous signal to others who may be minded to drive whilst inebriated and would also, quite properly, attract public outrage. I consider that the suspension ordered constituted a demonstrable error in the sentencing process.
In my opinion, sympathetic as I am to the personal situation of the respondent, the clear duty of this Court, however unpleasant and unfortunate it may be having regard to the expectations engendered by the sentence originally imposed, is to allow the present application and to reverse the suspension sought to be appealed against.
I would therefore grant leave to appeal, allow the appeal and reverse the suspension of the custodial sentence imposed.
[35] DPP v Stone (1994) 63 SASR 297 at 307-308.

Prior J similarly observed:[36]
I agree with what the other members of the court have written. Leave to appeal should be granted and the appeal allowed.
An immediate custodial sentence was required given the gravity of the offence and the absence of exceptional circumstances to properly make out good reason to suspend that sentence. It is only in the most exceptional cases of this kind that a suspended sentence can be justified. The high blood alcohol level and the previous conviction for driving whilst under the influence of intoxicating liquor were not given sufficient weight against the personal circumstances of the offender. This is a case where the sentence is so disproportionate to the seriousness of the offence that this Court must interfere either to increase the licence disqualification or to revoke the suspension of the sentence. In this case, I consider that the principles of public and personal deterrence call for the sentence of imprisonment imposed being served. I would allow the appeal for that purpose.
[36] DPP v Stone (1994) 63 SASR 297 at 303-304.
Matheson J agreed and adopted the following remarks of King CJ in Taddeo:[37]
I must say that it seems to me that suspension is a quite inappropriate order to make in a case of possession of cannabis for sale committed against a background of substantial involvement in cannabis trading. If I had been the sentencing judge I would certainly have declined to suspend the sentence. Moreover, it seems to me that the expressed grounds for the suspension of the sentence are so inadequate that it must be said that the sentencing discretion has miscarried.
My only cause for hesitation in the present case is the fact that it is an appeal by the prosecution and on the well-known principles affecting prosecution appeals this Court has to look very carefully at the matter before reversing a decision of a sentencing judge in a way which would increase the penalty upon the offender. That is particularly so where there has been a suspension of the sentence and the offender has been told by the court that he will not have to serve the sentence if he obeys the bond.
Nevertheless, considerations of public interest have to prevail in the end over considerations of that kind. I think that the suspension of this sentence was wrong and that the public interest would not be served by allowing the suspension to stand. I think that to allow the suspension to stand would tend to erode the standards of punishment that are necessary to operate as a deterrent to persons who are inclined to engage in commercial activity with respect to cannabis. To allow this suspension to stand would send an entirely wrong signal to people who are tempted to engage in cannabis trading and could only tend to weaken the defences which the community expects to be erected and maintained against the drug trade. In my opinion therefore there is no real alternative but to grant leave to appeal and to allow this appeal and to reverse the order suspending the sentence.
As the remarks of the members of the Court in Stone make clear, although an appeal court will be reluctant to set aside the sentencing Judge’s suspension of a prison sentence, it may do so where the public interest requires it.
[37] R v Taddeo (1993) 67 A Crim R 338 at 340 as cited in DPP v Stone (1994) 63 SASR 297 at 301.
It is to be noted that in Taddeo, the prosecution appealed on the basis that the failure to suspend was in error. As noted, in the circumstances of the present case, the prosecution did not seek to disturb the suspension ordered by the sentencing Judge. Although the prosecution’s attitude is in no way binding on the Court, even more particular care would need to be exercised than that which is required when considering the reversal of a suspension for which the prosecution has advocated.
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 Chau
Submissions
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.
Counsel drew attention to matters of mitigation. It was pointed out that the sentencing Judge found that the offending was entirely out of character, that Chau was unlikely to reoffend and that he had good prospects of rehabilitation. It was further contended that although the conduct of Chau was serious, there was an absence of factors that might justify a particularly lengthy period of disqualification, such as a history of offending or elements of road rage. Ultimately, it was said that the overall effect of the licence disqualification of five years operated excessively harshly in all the circumstances and was “so crushing as to call for the merciful intervention of the court…”.[38]
[38] See R v Rossi (1988) 142 LSJS 451 at 453.
The Director contended that the five year term imposed was within the sentencing discretion of the Judge. It was submitted that the range of disqualification available for a first offender is not dictated by the minimum disqualification stipulated for a subsequent offence. The Director outlined the serious nature of Chau’s conduct and drew attention to the fact that the legislation, although providing a minimum period of disqualification, does not mandate a maximum period. It was pointed out that it was open for the sentencing Judge to suspend the sentence of imprisonment imposed and reflect the relevant considerations of deterrence in the period of licence disqualification.
The period of licence disqualification imposed on Chau was within the sentencing discretion of the Judge. The offence for which Chau was convicted attracted a mandatory minimum period of disqualification of 12 months and a maximum term of imprisonment of two years. It is significant that the legislation does not provide a maximum possible term of disqualification that may be imposed. It is also of significance that Parliament has recognised the seriousness of the relevant conduct by increasing the available penalties and enabling the imposition of a term of imprisonment. It is to be observed that the minimum term of licence disqualification of 12 months permitted by the legislation, should be reserved for those cases at the least serious end of the scale for the relevant offending.
In the circumstances of the present case, the Judge correctly characterised Chau’s offending as being at the most serious end of the scale for the offence of which he had been convicted – that is, driving in a manner dangerous to the public. As earlier discussed, the driving of Thach and Chau was of a particularly reckless and dangerous manner, and was undertaken with a complete disregard for the well-being and safety of other road users. Furthermore, the Judge correctly adverted to the particular prevalence of the offending under consideration and the importance of general deterrence in the circumstances. It was appropriate for those considerations to be reflected in the period of licence disqualification imposed. Despite the mitigating factors arising in relation to Chau, the disqualification of five years was warranted in the circumstances.
Conclusion
I would dismiss the appeal.
WHITE J: These appeals against sentence arise out of a drag race between the respondent Mr Thach and the appellant Mr Chau in the early evening of Saturday 9 February 2008 on Port Wakefield Road at Burton.
During a period of up to 30 seconds, cars driven by Mr Thach and Mr Chau travelled side by side at a speed of approximately 140kph, 50kph more than the applicable speed limit of 90kph. Because of a slower moving vehicle in the lane ahead of Mr Thach, he veered to his right, into Mr Chau’s lane. The sentencing Judge considered that this manoeuvre was the probable cause of Mr Chau losing control of his car. It veered to the right, slid off the road striking a ditch in the middle of the median strip, became airborne and barrel rolled until colliding with the side of a bus travelling in the westernmost lane for north bound traffic on Port Wakefield Road (i.e., on the opposite side of that road). After striking the bus, Mr Chau’s car fell onto a car travelling next to the bus. This caused very serious injuries to the driver of the car (“the victim”) and extensive damage to her car. Several passengers on the bus also suffered injuries although they do not appear to have been serious.
Mr Thach did not stop and sped away from the collision scene.
Each of Mr Chau and Mr Thach were charged on a joint information with causing harm by dangerous driving, contrary to s 19A(3) of the Criminal Law Consolidation Act 1935 (SA) (“CLCA”). In the case of Mr Chau, the charge was that he had driven his car recklessly or at a speed or in a manner which was dangerous to the public and thereby had caused serious harm to the car driver. In the case of Mr Thach, the charge was that he had been present, aiding, abetting, counselling or procuring Mr Chau to commit his offence. In addition, Mr Thach was charged with a contravention of s 19AB(2) of the CLCA by failing to stop and render assistance after the collision of Mr Chau’s car with the bus and the victim’s car.
Both defendants entered not guilty pleas and the matter was listed for trial. However, shortly after the listing Mr Thach indicated a willingness to plead guilty and agreed to be interviewed by the police. Subsequently, Mr Thach did plead guilty, was interviewed by the police, and was called by the prosecution as a witness in the District Court trial of Mr Chau.
At that trial, Mr Chau was found not guilty of the offence of causing harm by dangerous driving, but guilty of the alternative offence of driving in a manner dangerous to the public.[39] The verdict indicates that the jury must have been satisfied that Mr Chau was driving in a manner which was dangerous to the public, but that it was not satisfied beyond reasonable doubt that that manner of driving was the cause of the victim’s injuries, because they could not exclude, as a reasonable possibility, that Mr Thach’s veering into the right hand lane ahead of Mr Chau was the cause of the latter losing control.
[39] Road Traffic Act 1961 (SA) s 46(1) (RTA).
The Judge who presided over the trial of Mr Chau then sentenced both Mr Thach and Mr Chau.
In relation to Mr Thach, the Judge imposed a single sentence of imprisonment of 12 months. His starting point was 24 months but the Judge reduced that starting point to 12 months on account of Mr Thach’s plea of guilty and co-operation with the authorities. The Judge then fixed a non‑parole period of nine months. In respect of the offence of causing harm by dangerous driving, the Judge imposed a licence disqualification of 10 years. In respect of the offence of leaving the scene of an accident after causing serious harm, the Judge imposed a disqualification of two years. He ordered the two periods of disqualification to be served concurrently.
In relation to Mr Chau, the Judge imposed a sentence of imprisonment of 12 months. That sentence could not be reduced on account of a plea of guilty. The Judge fixed a non‑parole period of nine months and imposed a licence disqualification of five years.
The Judge suspended each of the sentences of imprisonment upon Mr Thach and Mr Chau entering into bonds in the sum of $1,000 to be of good behaviour for a period of three years. The conditions of the bond were that they were to be under the supervision of a community corrections officer for a period of 18 months, complete 150 hours of community service within that period of 18 months, and not drive a motor vehicle during the period of the bond. The latter condition was superfluous as each was, in any event, disqualified from holding or obtaining a driver’s licence for a period which exceeded the terms of the bond.
The Director of Public Prosecutions seeks permission to appeal against the sentence imposed on Mr Thach. He contends that both the head sentence of 12 months and the non-parole period of nine months do not maintain adequate standards of punishment for the two offences committed by Mr Thach and are likely to impair public confidence in the administration of justice. The Director does not challenge the reduction on account of the plea of guilty, the suspension of the sentence, nor the licence disqualifications.
Mr Chau appeals against the five year licence disqualification imposed upon him, contending that that period is unreasonably long.
The Circumstances of the Offending
I have already recounted the essential circumstances of the offences. I add the following detail. Each of Mr Thach and Mr Chau were travelling south on Port Wakefield Road and stopped at the traffic lights at the junction of Port Wakefield Road with Waterloo Corner Road. Mr Thach’s vehicle was behind Mr Chau’s vehicle. When traffic moved off from the lights, Mr Thach drew alongside Mr Chau’s vehicle in the left hand lane. The two vehicles accelerated, reaching speeds of 140kph. It is apparent that there had been some mutual “egging on” by each of the two drivers.
The incident occurred at about 7.00pm. There were a number of other vehicles on Port Wakefield Road at the time. In addition vehicles were entering Port Wakefield Road from Waterloo Corner Road. The presence of the other vehicles must have been obvious to both Mr Thach and Mr Chau.
The drag race extended over some 800 metres from the Waterloo Corner Road junction. Neither driver had given any indication of abandoning participation in the race before Mr Chau lost control of his vehicle.
Mr Thach had two passengers in his car. Mr Chau was travelling alone and, fortunately for him, did not suffer any significant injury in the impact. Mr Thach and Mr Chau did not know each other before participating in the drag race. The decision to race, although conscious and deliberate, appears to have been of an impromptu kind.
Maximum Penalties
The offences to which Mr Thach pleaded guilty are particularly serious. The maximum penalty for each of the two offences is imprisonment for 15 years together with disqualification from holding or obtaining a driver’s licence for a minimum period of 10 years.[40] Parliament’s intention that the offence of causing serious harm by dangerous driving should be regarded seriously, and that substantial sentences should be imposed by the Courts, is seen in the increase in the maximum penalty, with effect from 30 July 2006, from 10 years’ imprisonment together with a minimum licence disqualification of five years.[41] The maximum penalty for the offence of failing to stop after a collision was also increased with effect from 30 July 2006 as prior to that date the maximum was a fine of $5,000 or imprisonment for one year, together with a minimum licence disqualification of one year.
[40] CLCA s 19A(3), s 19AB(2). The statement of the maximum penalty in each of these two subsections involves some awkwardness because each requires the imposition of a minimum period of licence disqualification as part of their stipulation of a maximum penalty. However, it was common ground on the appeal that s 19A(3) and s 19AB(2) are to be understood in this way. This was also the view taken of s 19AB(2) by Doyle CJ in R v Jongewaard [2009] SASC 346 at [6].
[41] Statutes Amendment (Vehicle and Vessel Offences) Act 2005 (SA) s 9(6).
The increases in the penalties mean that caution is now required when considering sentences imposed for offences to which the previous maxima applied.
The offence of which Mr Chau was found guilty is also a serious offence. The maximum penalty for that offence is imprisonment for two years and, given that Mr Chau was a first offender, required a licence disqualification for a period of at least 12 months. This penalty too was increased with effect from 30 July 2006.
Effect on the Victim
The driving offence committed by Mr Thach had also to be regarded seriously because of its effect on the victim. She suffered fractures to facial bones, several serious facial lacerations, a severe traumatic brain injury, and a left wrist fracture. Those injuries required treatment at the Royal Adelaide Hospital for some 17 days, four days of which was in the Intensive Care Unit. Upon her discharge from the Royal Adelaide Hospital, the victim was an inpatient at the Hampstead Rehabilitation Centre until 1 April 2008.
Although the initial injuries have healed, it seems that the victim has been left with a number of permanent effects including a substantial amnesia, impaired cognitive functioning, impaired balance, dizziness, impaired left hand function, a sense of fatigue, and a changed personality reflected in her changed behaviour. Needless to say, those injuries, and the permanent effects, have had a substantial impact on the victim’s home life and upon her family.
The manner of driving of each of Mr Thach and Mr Chau also involved a substantial risk of serious injury or death to themselves, Mr Thach’s passengers, and to all road users who happened to be in the vicinity of their drag race.
The Judge’s Sentencing Remarks

Mr Thach was aged 18 years and two months at the time of the offending. He worked in a market garden owned by his parents. Mr Thach had one previous court appearance for aggravated assault, committed whilst he was a 16 year old. Otherwise he had a good record. The Judge was impressed with Mr Thach’s early change of plea and with his co-operation with the authorities which involved “significant admissions against his own interests”.
Mr Chau was aged 25 at the time of the offending. He has commenced tertiary study. The Judge accepted that he was of generally good character.
The Judge described Mr Thach’s driving as “outrageous” and being dangerous not only because of the speed, but also because of the lane changing at high speed. He regarded Mr Chau’s driving as being “at the most serious end of the scale” for offences of driving in a manner dangerous.
In each case, the Judge considered the offending to be out of character. He noted that each defendant came from a strong, supportive and stable family and considered it unlikely that either would reoffend. However, the Judge was concerned that Mr Chau had not acknowledged the wrongfulness of his driving.
The Judge referred to the importance of general deterrence, saying that the driving offences committed by Mr Thach and Mr Chau were “unfortunately far too prevalent amongst young men driving high‑powered vehicles”.
In relation to the suspension of the prison sentence, the Judge referred to the need for general deterrence and then continued:
I have decided by the narrowest possible margin that the sentences should be suspended. In each case I have taken into account the defendant’s relative youth, their previous good records and the fact that each of them is unlikely to reoffend. They are both on the road to rehabilitation and the prospects are that they will both become worthwhile citizens.
The Judge also noted that the Director had not opposed a suspension of the prison sentence in the case of Mr Chau.
No Inconsistency in the Convictions
The circumstances of this case involved Mr Thach being sentenced as an aider and abettor even though the principal (Mr Chau) was acquitted of the offence which Mr Thach was alleged to have assisted him to commit. This did not involve any incongruity. The effect of Mr Thach’s plea was to admit that he had aided and abetted Mr Chau to drive at a speed or in a manner which was dangerous to the public, and that Mr Chau’s driving had caused serious harm to the victim. The jury verdict in Mr Chau’s trial did not have the effect of negating those admissions. Mr Thach remained bound by them.
An analogous circumstance involving co-conspirators was considered by the High Court in R v Darby.[42] In that case two men were convicted of conspiracy, but one was successful on appeal in having the verdict overturned, and a verdict of acquittal entered. The second man then argued that the acquittal of his co-conspirator necessitated his own acquittal. The High Court rejected this argument. Gibbs CJ, Aickin, Wilson and Brennan JJ held:
… the conviction of a conspirator whether tried together with or separately from an alleged co-conspirator may stand notwithstanding that the latter is or may be acquitted unless in all the circumstances of the case his conviction is inconsistent with the acquittal of the other person.[43]
In reaching this conclusion, the majority emphasised that a verdict of not guilty may indicate that the jury was certain that the accused was innocent or that, although the evidence aroused considerable suspicion, it was insufficient to convince them of the accused’s guilt beyond reasonable doubt.
[42] (1982) 148 CLR 668.
[43] (1982) 148 CLR 668 at 678.
I note that the principles stated in R v Darby in relation to co-conspirators were applied by the Court of Criminal Appeal in Tasmania in R v Deane[44] in relation to accomplices.
[44] (1996) 88 A Crim R 36.
In the present case, Mr Thach’s admission that Mr Chau’s driving did cause the serious injuries to the victim removed any element of doubt about the effect of Mr Chau’s driving in the charge which Mr Thach faced.
Consideration of the DPP Appeal Concerning Mr Thach
The consideration of the adequacy of the sentence imposed on Mr Thach should commence with the Judge’s starting point of two years.
On any view, Mr Thach’s contravention of s 19A of the CLCA was serious. It had a number of aggravating features. The offence involved deliberate and sustained reckless driving which was entirely without justification. Mr Thach did not intend to cause serious harm to anyone, let alone to the victim, but he did intend to, and did engage, in highly dangerous conduct which involved inevitably the risk of serious harm being caused to someone, including to his own passengers. He engaged in that conduct for his own self-centred purposes and without regard to the interests of other road users. Mr Thach chose to maintain his manner of driving even when it must have been obvious to him that there was a slower moving vehicle ahead of him, the avoidance of which required his highly dangerous manoeuvre at high speed into the path of Mr Chau’s car. Both his driving and the “egging on” of Mr Chau encouraged the conduct of Mr Chau. Mr Thach chose to engage in the driving on a major highway at a time when numerous other vehicles were also using it. In my opinion, the Judge was correct to describe his manner of driving as outrageous.
It is true that there was no suggestion of other aggravating features, such as the use of alcohol or drugs, or an attempt to avoid police apprehension, but the absence of factors of that kind is of little significance when balanced against the obvious dangers which Mr Thach’s driving involved. Road racing of the kind in which Mr Thach and Mr Chau engaged is unfortunately far too common, and the community is understandably concerned about it. The recent increase in the maximum penalties indicates Parliament’s intention that the courts should give effect to that concern.
Mr Thach’s failure to stop after the collision was also particularly serious. His plea of guilty involved an admission that was he was aware that a collision had occurred. He knew that Mr Chau’s vehicle was travelling at speed which was comparable to his own. He must have been aware that a collision in which a vehicle travelling at approximately 140kph was involved was likely to result in serious injury to someone.
Although there was no collision by, or to, Mr Thach’s own car, he was “involved” in the collision between Mr Chau’s vehicle, on the one hand, and the bus and the victim’s vehicle, on the other. His plea of guilty acknowledged that. Mr Thach’s speed of approximately 140kph no doubt took him away from the collision scene quite quickly, but there was no impediment to him stopping as soon as reasonably practicable, and returning to the scene.
The obligation to stop and render assistance after a collision is a moral as well as a legal duty. The substantial maximum penalty fixed by Parliament reflects the moral nature of the duty.
Mr Thach breached each of the obligations required by s 43(1) of the RTA: by not stopping immediately after the collision; by failing to give all possible assistance; and by failing to present himself to a police officer at the scene or at a police station. These breaches, in the circumstances in which they occurred, make his offence a particularly serious breach of s 19AB.
It is true that Mr Thach’s failure to stop and render assistance did not have any adverse consequence for the victim, or for the bus passengers. Other drivers stopped quickly, rendered such assistance as they could, and called for the attendance of emergency services vehicles. However, these are not matters which are mitigatory of Mr Thach’s offence. In any event, his failure to report the accident, as required by s 43(1)(b) of the RTA, could have rendered the police investigation more difficult, although I note that Mr Thach was apprehended on the following morning.
Counsel for the Director emphasised the matters to which I have just referred. In addition, counsel emphasised the importance of general deterrence in sentencing for this kind of offending. In this respect counsel referred to R v Thompson in which Bray CJ said:
… there are offences where the deterrent principle must take priority and where sentences of imprisonment may properly be imposed, even on first offenders of good character, to mark the disapproval by the law of the conduct in question and in the hope that other people will be deterred from like behaviour. Offences against the public safety may often legitimately fall into this class.[45]
[45] (1975) 11 SASR 217 at 222.
Counsel for Mr Thach emphasised his relative youth, and the impromptu nature of the decision to participate in the drag race. He also emphasised Mr Thach’s contrition and remorse, as indicated by his entering a plea of guilty to both charges, even though there was a basis, as the verdict at Mr Chau’s trial indicates, in which the first charge could have been defended. I agree that these matters are important. However, account was taken of the pleas of guilty and of Mr Thach’s contrition in the substantial reduction which the Judge made from his starting point.
The Judge did not indicate individual notional sentences for each of the two offences. Nor did he indicate how his head sentence was reached, having regard to the overall gravity of each offence.[46] His failure to do so has made the task of this Court more difficult.
[46] Cf R v Major (1998) 70 SASR 488 at 490; R v Symonds [1999] SASC 217 at [22]; R v Waugh [2005] SASC 470 at [42]-[44]; (2005) 93 SASR 274 at 284.
In my opinion, the objective seriousness of the appellant’s driving, when measured against the maximum penalty of 15 years for the offence of causing harm by dangerous driving, required by itself a sentence of imprisonment of at least three years. I have said “at least three years” because a sentence of imprisonment for a longer period could be justified.
The circumstances described above also indicate that the s 19AB offence had to be viewed, objectively, as a serious offence of its kind. In my opinion, a sentence of imprisonment of at least two years was an appropriate starting point for this offence also. These starting points may be higher than has previously applied but, as already noted, account must be taken of the increase in maximum penalties which took effect on 30 July 2006.
A single sentence imposed under s 18A of the Criminal Law (Sentencing) Act 1988 (SA) (CLSA) had to reflect the overall gravity of the appellant’s conduct. Although arising out of the one incident of driving, the appellant’s conduct infringed the criminal law in distinct ways, and the sentence imposed had to reflect an element of general deterrence against the commission of each offence. In my opinion, the requisite deterrent effect would be undermined in the circumstances of this case if, in the event that the sentences had been imposed separately, they were ordered to be served concurrently. This means, in my opinion, that it would be appropriate for individual sentences, if they were imposed, to be ordered to be served cumulatively. As King CJ observed in R v Dube & Knowles:
Whether the sentences were made cumulative or concurrent the essential thing was to ensure that the punishment imposed adequately reflected the seriousness of the criminal conduct. It is of the utmost importance that the impression should not be gained that if a crime is committed, another crime of the same sort can be committed with little or no increase in the punishment.[47]
[47] (1987) 46 SASR 118 at 124.
Accumulating the two notional sentences produces a starting point of imprisonment for at least five years. This is two and a half times the starting point adopted by the Judge. As I have said a starting point of more than five years could be justified.
The Director did not contend that the Judge’s reduction of 50% from his starting point was inappropriate. I regard that reduction as extremely generous. However, bearing in mind the special circumstances of this case and that it is a prosecution appeal, I would not interfere with it. Application of that reduction to a starting point of five years produces a head sentence of two years and six months. A non-parole period of 20 months is appropriate.
The limited circumstances in which this Court allows a Crown appeal against sentence are well known.[48] It is not necessary to repeat them, beyond saying that a prosecution appeal against sentence should not be allowed unless the sentence is so low that, if allowed to stand, it would erode the standards of penalty appropriate for the offences in question, or would impair public confidence in the administration of justice. In some cases, it is appropriate for the Court to declare that the sentence imposed is too low but not to proceed to re-sentence.
[48] R v Osenkowski (1982) 30 SASR 212 at 213; Everett v The Queen (1994) 181 CLR 295 at 299; R v Nemer (2003) 87 SASR 168 at 172.
In my opinion, this Court should not allow the sentence against Mr Thach to stand. The sentence of imprisonment imposed on Mr Thach is so far below a proper sentence as to require this Court’s intervention. Accordingly, I would grant the Director permission to appeal and would allow the appeal. This being a prosecution appeal, it is appropriate on re-sentence to impose the minimum sentence necessary to maintain proper sentencing standards.[49] I would set aside the sentence of imprisonment imposed by the Judge. In its place, I would impose a single sentence under s 18A of the CLSA of imprisonment of two years and six months and fix a non-parole period of 20 months.
[49] Dinsdale v The Queen [2000] HCA 54 at [62]; (2000) 202 CLR 321 at 341.
Counsel for the Director accepted that, in the event that this Court re-sentenced Mr Thach, suspension of the sentence would still be appropriate. That concession does not bind the Court. But it is, in my opinion, an appropriate concession in the particular circumstances of this case. Mr Thach’s early and frank acceptance of responsibility for his conduct, and the assistance which he has provided to the authorities are significant matters. So also is his relative immaturity at the time he committed the offence. It is also a significant matter to require someone as young as he is to serve time in custody. Mr Thach’s family support indicates that his prospects of rehabilitation are good. The following observations made by King CJ in R v Johnston[50] remain pertinent:
The typical dangerous driver is not a hardened criminal. The thought of prison is as frightening to him as it is to almost all citizens who are not hardened offenders. The deterrent to such a person is the threat of imprisonment rather than the duration of the threat of imprisonment. … The truth is that in the great majority of cases, he simply does not expect to be involved in a serious accident. If he thinks about it at all, it is the prospect of the prison gates clanging behind him rather than the duration of his incarceration which operates as the deterrent. I agree with the Crown Prosecutor that, by reason of the paramount importance of deterrence in this area, suspension of a sentence should not be lightly resorted to. Nevertheless it remains an option for use in appropriate cases.[51]
[50] (1985) 38 SASR 582.
[51] Ibid at 586.
For these reasons, I consider that the service of an immediate period in custody is not necessary in his case and that there is good reason to order suspension. Accordingly, I would suspend the sentence on the same terms and conditions as those imposed by the Judge. However, credit should be given to Mr Thach for the period since being sentenced during which he has been under the supervision of a Community Corrections Officer and for the community service which he has carried out. The condition requiring Mr Thach to carry out a further 104.5 hours of community service should serve as a regular reminder to him of the wrongfulness of his actions.
Although it was not the subject of a separate ground of appeal, this Court should also increase the period of disqualification for the offence of failing to stop after the collision. The Judge noted, correctly, that the minimum period of disqualification required for this offence was 10 years, but imposed only a two year disqualification. This was an error. The error had no practical effect, because the Judge ordered that the two year disqualification be served concurrently with the 10 year disqualification imposed for the s 19A offence. Nevertheless, this Court should correct the error and increase the disqualification for the s 19AB offence to 10 years. The two periods of disqualification should be served concurrently.
Consideration of Mr Chau’s appeal
Mr Chau appealed only against his five year licence disqualification, contending that that period was manifestly excessive.
Counsel emphasised that Mr Chau had no prior convictions, was of good character, came from a strong, supportive and stable family, and referred to his letter of apology to the victim and her family. She emphasised the Judge’s conclusion that Mr Chau was unlikely to reoffend, as well as the significant impact that the prolonged licence disqualification would have on him and his family.
Counsel drew attention to the fact that the licence disqualification imposed on Mr Chau was five times the mandatory minimum and that it exceeded by two years the mandatory minimum disqualification of three years for a second offender. Finally, counsel submitted that the imposition of lengthy periods of disqualification can be counterproductive. In this respect, counsel referred to the comments of Mitchell J in Day v Conn:
Insofar as the disqualification from holding a driver’s licence may act as a general deterrent, lengthier disqualifications may have some effect upon those who would otherwise offend although the effect is not likely to be proportionate to the length of the disqualification. Insofar as it constitutes a deterrent of the defendant it is likely to be self-defeating. … Further the driving of a motor vehicle is so much as part of the life of the average citizen that its deprivation on a permanent or a very long basis may drive that individual to another breach of the law, namely to driving without a licence. The balance must be struck between imposing such a penalty as will reflect the degree of blame which will be attached for the particular breach of the law and at the same time will act as a deterrent, and imposing a penalty which is so severe that it may lead the defendant into a further breach of the law and which, in any event, raises the penalty beyond what is appropriate for the particular offence committed by the particular individual.[52]
[52] (1979) 22 SASR 372 at 375-6.
In my opinion, the caution sounded by Mitchell J about the counterproductive effect of lengthy periods of licence disqualification remains sound. Courts should not too readily assume that the more prolonged the period of disqualification, the greater the deterrent effect. In addition, as observed by Mitchell J, for many people the use of a driver’s licence is an essential aspect of their earning of a livelihood, either because they need to drive during the course of their work or getting to and from their workplace is not practical without the use of a vehicle. Nevertheless, the grant of a licence to drive is a privilege, and not a right, and its deprivation is an important aspect of sentencing in cases like the present.
I accept that it is likely that the five year disqualification will cause Mr Chau hardship and inconvenience. The prospect that others would suffer a like hardship is an important part of the general deterrent effect of a licence disqualification.
In Mr Chau’s case, there are other considerations. The Judge considered suspension of the sentence of imprisonment which he had imposed on Mr Chau only after he had imposed the five year licence disqualification. As already noted, the Judge said that he decided “by the narrowest possible margin” that Mr Chau’s sentence of imprisonment should be suspended. It is reasonable to suppose therefore that the lengthy licence disqualification formed part of the Judge’s consideration when he made the finely balanced decision to suspend the prison sentence. In this way, the period of licence disqualification and the decision to suspend were interdependent. In these circumstances, this Court should be reluctant to interfere with the sentencing discretion involved in the fixing of the licence disqualification.

I agree with counsel for the Director that the appropriate length of disqualification for a first offender is not dictated by the minimum period of disqualification fixed by the RTA for a subsequent offence. The courts are not required to engage in some form of scaling of the period of licence disqualification by reference to the minimum period of disqualification which would be required for a subsequent offence.
In the present case, the Judge described Mr Chau’s offending as being at “the most serious end of the scale”. In my opinion, this was a correct characterisation and made appropriate the imposition of a lengthy period of disqualification.
In all the circumstances, although I consider the period of licence disqualification imposed to have been severe, I do not consider that it can be regarded as manifestly excessive so as to require this Court’s intervention.
I would dismiss Mr Chau’s appeal against sentence.
Conclusion
For the reasons given above, I would grant the Director permission to appeal against the sentence imposed upon Mr Thach. I would allow that appeal. I would then set aside the sentence of imprisonment imposed by the District Court and in lieu thereof would impose a single sentence under s 18A of the CLSA of imprisonment for two years and six months and would fix a non-parole period of 20 months. I would suspend that sentence of imprisonment upon Mr Thach entering into a bond in the sum of $1000 to be of good behaviour for two years and seven months. It will be a condition of the bond that Mr Thach be under the supervision of a Community Corrections Officer for a period of 13 months, and that he complete 104.5 hours of community service within that period. These conditions are similar to those imposed by the sentencing Judge, save only that Mr Thach has been given credit for the period during which he has been under supervision since being sentenced on 26 February 2010 and for 45.5 hours of community service which he has performed since that time.
I would also increase the period of licence disqualification for the s 19AB offence to 10 years but order that this disqualification operate concurrently with that imposed for the s 19A offence.
I would dismiss Mr Chau’s appeal against sentence.