R v VENETSANOS - [2004] SASC 401

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v VENETSANOS
Judgment of The Court of Criminal Appeal
(The Honourable Justice Duggan, The Honourable Justice Bleby and The Honourable Justice Anderson)
7 December 2004
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - CULPABLE OR DANGEROUS DRIVING CAUSING DEATH OR BODILY HARM
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - FIRST OFFENDERS - SUSPENSION OF SENTENCE
Appellant pleaded guilty to two counts of causing bodily harm by dangerous driving pursuant to s19A(3) of the Criminal Law Consolidation Act 1935 (SA) - appellant deliberately swerved vehicle towards a group of pedestrians - disputed facts hearing as to whether appellant knew a particular man was part of the group - animosity between the appellant and that man - appellant only eighteen at time of offence - first offence - sentencing Judge imposed a head sentence of two years and three months, non-parole period of one year - appellant appeals on the grounds that the sentencing Judge failed to give sufficient weight to personal factors, in particular, the appellant's age, and should have suspended the sentence - sentence not manifestly excessive or requiring suspension - appeal dismissed.
Criminal Law Consolidation Act 1935 (SA) s19A(3); Criminal Law (Sentencing) Act 1988 (SA) s10(1), referred to.
R v Payne (2004) 89 SASR 49; R v Johnston (1985) 38 SASR 582; R v Peake (2002) 221 LSJS 407, applied.
R v Zeunert [2004] SASC 165, discussed.
R v Godwin (2001) SASR 195, considered.

R v VENETSANOS
[2004] SASC 401
Court of Criminal Appeal: Duggan, Bleby and Anderson JJ

DUGGAN J In my view this appeal should be dismissed for the reasons given by Anderson J.
BLEBY J The circumstances of this offending and the relevant personal circumstances of the appellant are set out in the reasons for judgment of Anderson J. I will not repeat them.
Many of the circumstances put in mitigation by counsel for the appellant are circumstances commonly encountered in cases of this nature. There is seldom an intention to cause harm. A relatively high proportion of offenders have no criminal record or are of previous good character. A plea of guilty is almost invariably accompanied by expressions of remorse and contrition. The offence is very often committed by young, inexperienced and emotionally immature drivers. Most offenders will pose no danger to the community if released on a suspended sentence.
Those are common and recurring features associated with breaches of s 19A of the Criminal Law Consolidation Act 1935. They were recognised as such by the Court in R v Payne (2004) 89 SASR 49 at 66, [61]. It must be remembered that it is against that background that Parliament has created the offence and set the maximum penalties. In other words, Parliament must be assumed to have known that those are common features associated with the offence.
Furthermore, the penalties for offences under s 19A of the Criminal Law Consolidation Act are graded, not according to the seriousness or culpability of the driving, but according to the outcome. For a first offence involving the use of a motor vehicle, if death or grievous bodily harm ensues, the maximum penalty is 10 years imprisonment with a minimum licence disqualification of 5 years. If the injury does not amount to grievous bodily harm, the maximum penalty is 4 years imprisonment with a minimum licence disqualification of one year.
Two things follow from these observations about the offence and the penalties prescribed in s 19A. The first is that what might be seen to be mitigating circumstances in many other types of offending will not carry the same weight for this offence because Parliament must have been aware that those features are commonly present. Secondly, the conclusion is inevitable that factors of punishment and general deterrence weigh heavily in the scales when it comes to fixing a penalty. That has been recognised in many cases. See, for example, R v Johnston (1985) 38 SASR 582 at 585; R v Godwin (2001) 80 SASR 195 at [23]; R v Peake (2002) 221 LSJS 407 at 410.
That is not to say that the factors I have mentioned cannot be relied on as factors in mitigation. As King CJ said in R v Johnston (supra) at 585-586:
“The impact of a term of imprisonment, particularly a long term, upon the individual who must at some stage re-enter society, and the needs of rehabilitation, must always be considered. The desire to deter must not be given inordinate scope to the exclusion of other values with the result that sentencing becomes an exercise in pointless and even counter-productive severity.”
There were a number of aggravating circumstances relating to this offending. There was the deliberate increase in speed and the reckless aiming of the vehicle at a group of pedestrians. The danger caused to the pedestrians by lack of judgment or by unexpected movement of them was obvious. There was the failure to stop after the accident and the seriousness of the injuries to at least one of the victims. The alleged mitigating factors that I have described were present. The most important of these is the appellant’s age and the undoubted effect that a term of imprisonment will have on him. However, given the seriousness of the offending, the sentence and non-parole period imposed were both quite reasonable in the circumstances.
The exercise of the discretion to suspend the sentence in such cases is often difficult. However, as Doyle CJ said in R v Peake (2002) 121 LSJS 407 at 410-411:
“There will often be room for debate as to whether a case is an appropriate one for a suspended sentence of imprisonment. The fact that there is room for debate does not indicate error by the judge. It is the inevitable result of the fact that a decision to suspend involves the exercise of a wide discretion. If there is a wide discretion to be exercised, there will necessarily be room for differences of opinion as to the exercise of the discretion in particular cases. If an exercise of the discretion is attacked on appeal on the grounds that the actual exercise is not reasonably open, the Court on appeal cannot interfere if the result falls within an acceptable range of decision-making.”
Given the seriousness of the offending, it cannot be said that such mitigating factors as there were caused the exercise of the sentencing Judge’s discretion to miscarry. It was a wide discretion. This is not a case in which an appeal court can justifiably interfere. I would dismiss the appeal.

ANDERSON J In this matter the appellant appeals from the sentence imposed on him by a Judge of the District Court. The appellant was convicted of two counts of causing bodily harm by dangerous driving contrary to s 19A(3) of the Criminal Law Consolidation Act 1935 (SA). The counts relate to two victims of the same offence.
The offence occurred on 5 October 2002 at St Agnes. The maximum sentence for a first offence of causing grievous bodily harm is imprisonment for ten years and disqualification from holding a driver’s licence for five years or such longer period as the court rules. For the second count where the harm caused was serious, the maximum penalty is four years and disqualification from holding a driver’s licence for one year or such longer period as the court orders.
The two victims were innocent pedestrians. The first victim sustained a closed head injury, facial cuts and abrasions, a bruising to the lung, and fractures to both a leg and an arm, and in particular, damage to his knee which required a knee reconstruction later on. He required some months of rehabilitation. The second victim sustained lacerations to his forehead which required stitches, he had his teeth chipped, and was bruised, and sustained a severe back strain as well as ligamentous injuries.
Both victims were standing near cars which were parked in a suburban street at about 2:15 a.m. in the morning.
The appellant was going to pick up a friend of his from a party, and when he turned into Toovis Avenue, St Agnes, where the incident happened, he deliberately swerved his vehicle towards a group of people who he saw standing in the street. Prior to this, he had been driving at about 20 or 25 kilometres per hour but then accelerated before driving at the group, and reached a speed of between 50 and 60 kilometres per hour.
There was a disputed facts hearing before the learned Judge. The Judge disbelieved the appellant in relation to his evidence that he was not aware that there was a man called McLean amongst the group of people on the roadway. There was a history of some animosity between the appellant and McLean, apparently because McLean was in a relationship with a former girlfriend of the appellant. The appellant contended that he was driving at an unknown group of people which, on the face of it, would seem highly unlikely. It is not surprising that he was disbelieved by the learned Judge.
The appellant was sentenced to a term of imprisonment of two years and three months which was reduced from three years because of the plea of guilty. The learned Judge imposed a non-parole period of one year because he took into account the appellant’s previous good character and matters affecting the appellant’s personal life and family responsibilities.
The argument on behalf of the appellant was that in all the circumstances the Judge should have suspended any period of imprisonment. It was suggested that despite the references the learned sentencing Judge made to personal factors, he failed to effectively give sufficient weight to those factors, and that therefore his sentencing discretion miscarried. One of these personal factors put to us is that at the time of the offence, the appellant was only eighteen years old.
Counsel for the appellant submitted that pursuant to s10(1) of the Criminal Law (Sentencing) Act 1988 (SA), the appellant’s expression of contrition was particularly important.
I have taken this factor, together with the other factors set out in s10(1), into consideration.
It was argued that the learned sentencing Judge was wrong in starting at a point of three years before allowing for the plea of guilty, and that this starting point was more appropriate for a charge of causing death by dangerous driving.
Reference was made to the recent decision of the Full Court in R v Payne (2004) 89 SASR 49, which involved a case of causing death by dangerous driving, and involved a review of many similar cases.
Payne had been sentenced for three years imprisonment with a non-parole period of 18 months for causing death by dangerous driving. The court found the sentence to be moderate but not so lenient as to cause the sentence to be increased.
The court in Payne said (at 70):
“The circumstances of each case vary markedly. In cases of death by dangerous driving, the variation of circumstances is almost unlimited. The personal circumstances of offenders are different, and the comparison of one sentence with another is of limited assistance to the court.”
The comments in Payne set out above apply equally to a case of causing bodily harm by negligent or reckless driving.
Whilst it is obvious that the more serious offence of causing death by dangerous driving will normally require a higher starting point in the fixing of a head sentence than the lesser offence of causing grievous bodily harm by dangerous driving, there may sometimes be a point at which the two offences can be regarded in similar terms. For instance, a case of momentary inadvertence with no other aggravating factors might be regarded as at the bottom end of a range of sentences for causing death by dangerous driving, whereas a deliberate act, such as occurred here, involving recklessness as to the consequences of what might happen by attempting to scare a group of people would require a severe penalty in relation to the offence of causing grievous bodily harm by dangerous driving. In the end, the difference between those two may not be all that much.
The court was also referred to a decision of the Full Court in R v Zeunert [2004] SASC 165 to illustrate that the original starting point of the learned sentencing Judge was too high. I do not believe it was. As I have indicated, I believe this matter falls at the higher end for offences of this type. Zeunert was a case on its own facts and is an example of the comment in Payne set out above.
The appellant’s driving, as previously discussed, was extremely poor, with reckless indifference as to the consequences. Therefore it is important that the sentence should reflect both personal and general deterrence factors.
In my view, the comparisons between the cases does nothing other than illustrate the fact that it was a case of very poor driving in Zeunert, and that for offences of this type, it was likewise a case of very poor driving.
It was also suggested that having regard to the appellant’s youth, there should have been leniency extended to him by not imposing a term of imprisonment or suspending any such term.
As against the appellant’s youth, the head sentence and non-parole period must reflect the serious nature of this offending and the public outrage at such a deliberate act must be reflected in the sentence imposed.
The basis of the findings by the learned trial Judge in the disputed facts hearing is important. His Honour summarised the position as follows:
“Your situation is, perhaps fortunately for you, mitigated by the limited extent of your victims’ injuries, serious enough as they are, but it is then aggravated by the element of deliberation in your driving, to the extent that you directed your vehicle at the pedestrians with the specific intention of frightening McLean, if not Purcell herself, because you bore McLean ill will and you then lost control of your vehicle. This matter of aggravation weighs heavily against you and I regard your offending at the more serious end of the scale of offending of this kind.”
I entirely agree with his Honour’s summation of the position as set out above and in particular where it sits in the scale of seriousness.
This was not a case where it could be said that the driving was at the low end of a scale of seriousness. Whilst acknowledging that this sentence was severe, it is not such a sentence which, in my view, calls for any reduction on the basis of being manifestly excessive or one that requires suspension.
I regard both the head sentence and non-parole period fixed by the learned Judge as appropriately reflecting the seriousness of the offence whilst taking into account the personal circumstances of the appellant. Both reflect properly the relevant considerations of personal and general deterrence in a case where the appellant’s driving showed a disregard for the users of the road.
For those reasons, I would dismiss the appeal.