R v Watkins

[2013] SASCFC 150

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v WATKINS

[2013] SASCFC 150

Judgment of The Court of Criminal Appeal

(The Honourable Chief Justice Kourakis, The Honourable Justice Vanstone and The Honourable Justice Stanley)

20 December 2013

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

CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - SENTENCING GUIDELINES

The appellant pleaded guilty to one count of aggravated causing death by dangerous driving, one count of aggravated causing serious harm by dangerous driving and four counts of aggravated causing harm by dangerous driving.

The appellant's offending occurred at around 2:00 am on 6 November 2011 at Woodville North.  He was driving along Torrens Road towards the city.  He had four passengers in his vehicle.  He travelled at very high speeds.  He was driving under the influence of alcohol and methylamphetamine.  It is less clear whether he was affected by cannabis.  His driving was reckless and resulted in a collision with an oncoming car.  The collision caused the death of one of the passengers in the appellant's car, serious injury to two others and minor injuries to the remaining passenger in the the appellant's car and the occupants of the oncoming vehicle.

The Court fixed a single sentence pursuant to s 18A of the Criminal Law (Sentencing) Act 1988 (SA) ("the Sentencing Act"). The appellant was sentenced to a term of eight years imprisonment with a non-parole period of six years and five months.

Whether the sentence is manifestly excessive.  Whether the judge erred in imposing a non-parole period of four-fifths of the head sentence.

Held per Stanley J (Kourakis CJ and Vanstone J agreeing) (dismissing the appeal):

1.  The sentence imposed is not manifestly excessive (at [23] - [27]).

2. Given that the four-fifths rule applied to the charge of aggravated causing death by dangerous driving, s 32(5a)(c) of the Sentencing Act applied once the sentencing judge utilised s 18A (at [29] - [32]).

Criminal Law (Sentencing) Act 1988 (SA) s 10, s 18A, s 32; Road Traffic Act 1961 (SA) s 45A, s 47BA; Criminal Law Consolidation Act 1935 (SA) s 340, referred to.
Markarian v The Queen (2005) 228 CLR 357; R v Dundovic (2008) 101 SASR 32; Dinsdale v The Queen (2000) 202 CLR 321, discussed.
R v Abdulla (2011) 109 SASR 258, considered.

R v WATKINS
[2013] SASCFC 150

Court of Criminal Appeal:  Kourakis CJ, Vanstone and Stanley JJ

1. KOURAKIS CJ:   I would dismiss the appeal for the reasons given by Stanley J. 

2. VANSTONE J:     I agree that this appeal should be dismissed and with the reasons of Stanley J.

   STANLEY J:

   Introduction

3. This is an appeal against sentence. 

4. The appellant pleaded guilty to one count of aggravated causing death by dangerous driving, one count of aggravated causing serious harm by dangerous driving and four counts of aggravated causing harm by dangerous driving. 

5. The Court fixed a single sentence pursuant to s 18A of the Criminal Law (Sentencing) Act 1988 (SA) (“the Sentencing Act”).  The appellant was sentenced to a term of eight years imprisonment with a non-parole period of six years and five months.  But for the appellant’s guilty pleas, the learned sentencing judge would have imposed a term of imprisonment of 10 years. 

6. The appellant was disqualified from holding or obtaining a driver’s licence for a period of 12 years. 

7. The offences were aggravated as the appellant was driving his motor vehicle with proscribed drugs in his blood, namely, cannabis and methylamphetamine, contrary to s 47BA of the Road Traffic Act 1961 (SA) (“the Road Traffic Act”) and at a speed exceeding, by 45 kilometres per hour or more, the speed limit that applied, contrary to s 45A of the Road Traffic Act.

8. The maximum penalty for aggravated causing death by dangerous driving is life imprisonment and disqualification from holding or obtaining a driver’s licence for 10 years or such longer period as the court orders.  The maximum penalty for aggravated causing serious harm by dangerous driving is life imprisonment and disqualification from holding or obtaining a driver’s licence for 10 years or such longer period as the court orders.  The maximum penalty for aggravated causing harm by dangerous driving is seven years imprisonment and disqualification from holding or obtaining a driver’s licence for three years or such longer period as the court orders.

9. The appellant’s offending occurred at around 2:00 a.m. on Sunday 6 November 2011 at Woodville North.  He was driving in a south-easterly direction along Torrens Road towards the city.  He had four passengers in his car.  He travelled at very high speeds.  He was driving under the influence of alcohol and methylamphetamine.  It is less clear whether he was affected by cannabis.  THC was present in his blood.  His driving was reckless in the extreme and resulted in a collision with an oncoming car.  The collision caused the death of one of the passengers in the appellant’s car, serious injury to two others and minor injuries to the remaining passenger in the appellant’s car and the occupants of the oncoming vehicle.

10. The appellant appeals the sentence on the basis that it is manifestly excessive. 

    Circumstances of the offending

11. The circumstances of the offending are comprehensively described in the judge’s sentencing remarks as follows:

    The relevant sequence of events commenced some hours earlier. You were sharing a house with the man who was ultimately killed. You were at home with him and two of the people who were ultimately injured. You then all got into your car and you drove to the home of the third person who was ultimately injured in your vehicle. You then drove to a hotel at Semaphore. You were driving at above the speed limit. You were drifting over the road and you had to correct in order to avoid oncoming traffic or the kerb.

    You had more to drink at the hotel. You and your companions eventually left the hotel. You then drove along Semaphore Road and you were bumping into roundabouts as you negotiated them. You then drove to Alberton. You were cornering harder than necessary and your rear-seat passengers were somewhat thrown around at times. You then drove through the back streets of Alberton at no less than 50 km/h.

    You then turned onto Torrens Road and drove south-east. You announced that you were going to speed up and you accelerated to not less than 80 km/h. You then deliberately drove through a red light at the intersection of Torrens Road and Cheltenham Parade. As you were running the red light one of your passengers told you to slow down, whereupon you said that there were bumps ahead and you said, and I quote from one of your passengers, ‘Look what happens when I go over them really fast’. You then said something about the lights and you switched your headlights off so that the car was illuminated by the parking lights only. You changed into the left lane, where the bumps were located or at their most prominent, and you accelerated heavily to a grossly excessive speed. You then said, and I again quote from one of your passengers, ‘Watch this’, and you took your hands off the wheel. Your vehicle became airborne as it passed over the bumps and it landed, straddling the two lanes for east bound traffic. You were unable to bring the vehicle back under your effective control and it crossed over the median strip and collided with an oncoming vehicle before sliding off the road and impacting with the fence post before coming to rest up against the wall on the southern footpath of Torrens Road.

    Your speed at the relevant time has been scientifically estimated between not less than between about 110 km/h and about 130 km/h. Your blood alcohol level at the time of the fatal impact has been estimated at 0.058% and cannabis and methylamphetamine were present in your system and I am satisfied, both from your earlier driving and from the way you drove and what you did after you turned onto Torrens Road, that for some reason your inhibitions were loosened and your faculties were impaired.

    Your crimes are aggravated by the fact that you were exceeding the speed limit by over 45 km/h and by the fact that both methylamphetamine and cannabis were in your system.

    You were spoken to at the scene and you said that the relevant stretch of road was extremely bumpy and that you travelled along it every day.

    You were thrill seeking and your speed, your impaired faculties, your deliberate driving over the bumps and your taking your hands off the wheel as you did so created a potential risk of death or injury to others which was well over and above the ordinary risks of the road.

    Your driving was reckless rather than heedless, in the sense that you must have recognised the risks you were running and you nonetheless went ahead and ran them.

    Your front-seat passenger was killed. As far as your passengers in the rear are concerned, the first suffered serious injuries comprising fractured ribs, fractured thigh bone, a fractured kneecap, a lacerated leg and concussion. He underwent surgery and consequential rehabilitation. The second suffered a fractured collarbone, a fractured jaw, bruising and swelling to the face and pain to the hip and the third suffered bruising and soreness to the face, neck and back.

    The two occupants of the oncoming vehicle were also injured. The driver suffered cuts and bruises and the passenger suffered bruising and soreness.

    You committed your crimes against the background of your earlier faulty driving both before you arrived at the hotel and after you left the hotel and, indeed, before you accelerated towards the bumps.

    Circumstances of the appellant

12. The appellant was 42 years of age at the time of the offending.  He is the father of two children.  At the time of the offending he was separated from his wife from whom he is now divorced.  He was the proprietor of a transport business which he subsequently closed as a result of the loss of his driver’s licence and his failure to procure a loan to finance the debts of his business.  He had operated the business for 12 years.  He has a solid pre-offending work history.  At the time of the accident he was living with his friend David Kernohan, who was killed in the collision.

13. After the appellant was charged he went to live with his widowed mother in Murray Bridge.  He unsuccessfully sought to obtain employment in Murray Bridge.  He undertook study and completed an Aged Care Certificate III.  He suffers from depression. 

14. The appellant’s prior offending is relatively minor and had occurred more than 15 years before these offences.

15. I accept he is and was deeply remorseful and contrite concerning his offending and its tragic consequences.  This is reflected in his pleas of guilty which, although coming late, had not been in doubt.  His counsel, Mr Kane, submitted that he has good prospects of rehabilitation. 

    Manifestly excessive?

16. The approach of an appeal court in considering an appeal against sentence is explained by the High Court in Markarian v The Queen.[1]Gleeson CJ, Gummow, Hayne and Callinan JJ said:[2]

    As with other discretionary judgments, the inquiry on an appeal against sentence is identified in the well-known passage in the joint reasons of Dixon, Evatt and McTiernan JJ in House v The King, itself an appeal against sentence. Thus is specific error shown? (Has there been some error of principle? Has the sentencer allowed extraneous or irrelevant matters to guide or affect the decision? Have the facts been mistaken? Has the sentencer not taken some material consideration into account?) Or if specific error is not shown, is the result embodied in the order unreasonable or plainly unjust? It is this last kind of error that is usually described, in an offender’s appeal, as “manifest excess”, or in a prosecution appeal, as “manifest inadequacy”.

    [1] [2005] HCA 25, (2005) 228 CLR 357.

    [2] [2005] HCA 25 at [25], (2005) 228 CLR 357 at 370 – 371.

17. The appellant submits that in imposing sentence the learned sentencing judge failed to give sufficient weight to the appellant’s prospects for rehabilitation, particularly given his demonstrated contrition and remorse, his pleas of guilty and his comparatively unblemished record.  This resulted in the imposition of a head sentence that is manifestly excessive.[3]

    [3]    It is implicit in the appellant’s submission that the non-parole period is too high, but only by reason of the head sentence being too high.  The sentencing judge fixed the non-parole period at four-fifths of the head sentence.  I infer that the appellant contends the Court should fix a fresh non-parole period on that same basis if it concludes the head sentence is manifestly excessive. 

18. Mr Kane referred to this Court’s judgment in R v Dundovic.[4]  He did so on the basis that the learned sentencing judge had referred to Dundovic during the course of submissions.  This had occurred in the context of the DPP providing a comparative sentencing table for the aggravated offence of causing death by dangerous driving.  Dundovic was not included in the table.  Dundovic was a prosecution appeal from a sentence of four years, 10 months and two weeks imprisonment.  In Dundovic the respondent had pleaded guilty to one count of aggravated cause death by dangerous driving and one count of aggravated cause harm by dangerous driving.  In Dundovic the Court of Criminal Appeal concluded that the sentence was manifestly inadequate.  In allowing the Director’s appeal, the Court increased the sentence to imprisonment for 11 years and two months.  Doyle CJ, with whom Bleby and Anderson JJ agreed, considered that, before making a reduction for the plea of guilty, a single sentence of imprisonment for 14 years was warranted.  He arrived at this figure on the basis of a sentence of imprisonment of 12 years for the offence of aggravated cause death by dangerous driving and two years for the offence of aggravated cause harm by dangerous driving.  He reduced the sentence by 15 per cent on account of the guilty plea and gave further credit for time spent in custody. 

    [4] [2008] SASC 136, (2008) 101 SASR 32.

19. Dundovic was particularly serious offending.  The respondent was involved in a high speed chase to elude police which resulted in a collision causing the death of the driver of another car and injury to a passenger in the respondent’s car.  The circumstances of aggravation were that the respondent committed the offence in the course of attempting to escape police pursuit and as part of a prolonged, persistent and deliberate course of very bad driving.  In addition, he was found to have amphetamine and methylamphetamine in his blood.  He was driving in breach of a bail condition and without a driver’s licence.  Doyle CJ characterised the offending as being of the most serious kind.  There was nothing about the personal circumstances of the respondent which sounded in mitigation. He had a long history of offending at a relatively young age, as well as an appalling record of traffic offending. 

20. Mr Kane, for the appellant, submitted that Dundovic was a far more serious example of offending than the appellant’s case. 

21. Mr Kane does not point to any identifiable error in the approach of the learned sentencing judge.  Rather, he submits that the term of imprisonment imposed is so lengthy that it must be infected by error. 

22. I would reject this submission.

23. In my view the sentence imposed cannot be characterised as manifestly excessive.

24. In fixing sentence the Court must have regard to a range of factors for offending of this kind. Those factors are the circumstances of the offending, in particular the manner of driving, the nature of the matters of aggravation, the number and nature of offences committed, the impact of the offending on the victims, the matters referred to in s 10(1) of the Sentencing Act, in particular the need to protect the safety of the community, the need for general deterrence and the personal circumstances of the offender.

25. In my view the circumstances of the offending was reckless in the extreme.  Torrens Road is a busy arterial road.  Even at 2:00 a.m. on a Sunday one would expect to find other vehicles using the roadway.  The appellant well understood the surface of the carriage way was to some extent bumpy rather than smooth, which created some danger for road users.  He was travelling at very high speeds.  He took his hands off the steering wheel.  He had been driving in a manner, and at a speed, which created apprehension on the part of the passengers in his vehicle for a distance of some kilometres before the collision.  This was a sustained period of dangerous driving.  There were six offences involving six victims.  One person died and five people were injured, two of them seriously,[5] as a result of the appellant’s driving.  The appellant was driving with cannabis and methylamphetamine in his blood at a speed not less than 110 kilometres per hour in a 60 kilometre per hour zone.  The impact of his offending will be felt by a number of people for many years, if not for the remainder of their lives.  These people include not just the injured but their families and friends and the families and friends of the deceased.  The manner of the appellant’s driving indicated that he gave no thought to, and had no concern for, the risk of harm to other road users that night.  Deterrence and protection of the community are significant factors when considering an appropriate sentence for offending of this kind.  Deterrence in this instance includes not only specific deterrence but, more particularly, general deterrence.  Offending of this kind is too prevalent.  Courts are obliged to fix sentences for this offending that are sufficiently severe that they will act as a deterrent to others from driving at speeds and in a manner dangerous to the public, especially when they are affected by drugs or alcohol.

    [5]    While the appellant was charged with only one count of aggravated causing serious harm by dangerous driving, in respect of Glenn Phillips, the evidence satisfies me that the injuries suffered by Jaclyn Ann Fitzgerald were serious.  She suffered a broken collar bone, a fractured pelvis and her jaw was broken in three places. 

26. When set against these factors, the matters personal to the appellant, namely, his remorse and contrition and prospects for rehabilitation, do not support a conclusion that the head sentence was manifestly excessive.  The head sentence in this case of eight years compares with the notional head sentence of 10 years, two months and two weeks in Dundovic.  While there are aspects of the offending in Dundovic which can be characterised as worse than this case, it cannot be overlooked that in Dundovic the driving resulted in the death of one person and relatively minor injuries to another.  In this case, as I have noted, the appellant’s driving caused the death of one person, serious injuries to two others, and relatively minor injuries to three others.  While an inventory of death and injury can only go so far in informing the sentencing process, it is nonetheless relevant to the imposition of sentence for this kind of offending.  It must also be recognised that Dundovic was decided before the introduction of s 340 into the Criminal Law Consolidation Act 1935 (SA).[6]  Accordingly, the Court in fixing the substituted sentence, presumably approached that exercise in accordance with the principle in Dinsdale v The Queen[7] that in allowing a prosecution appeal the appellate court imposes a substituted sentence towards the lower end of the range of available sentences.  In my view, while at the high end, this sentence is within the range for offending of this kind, even allowing for the appellant’s personal circumstances. 

    [6]    See R v Abdulla [2011] SASCFC 20 at [17], (2011) 109 SASR 258 at 262.

    [7] [2000] HCA 54 at [62], (2000) 202 CLR 321 at 341.

1. For these reasons I would dismiss the appeal.  However, there is one other matter that should be addressed.

   One other matter:  the non-parole period

2. As I have said, the learned sentencing judge fixed a single sentence pursuant to s 18A of the Sentencing Act.  He fixed a non-parole period at four-fifths of the head sentence.  The appellant does not complain about this.  He accepted during sentencing that the so-called four-fifths rule was appropriate. 

3. Pursuant to s 32(5)(ba) of the Sentencing Act the court, if fixing a non-parole period in respect of a person sentenced to imprisonment for a serious offence against the person, must fix a mandatory minimum non-parole period of four-fifths of the head sentence. For this purpose, “serious offence against the person” means a major indictable offence (other than murder) which results in the death of the victim or the victim suffering total incapacity. While the provisions of s 32(5)(ba) of the Sentencing Act applied to the offence of aggravated causing death by dangerous driving, it did not apply to the offence of aggravated causing serious harm by dangerous driving as the victim’s injuries did not result in him suffering total incapacity.  Nonetheless, it was open to the learned sentencing judge to fix a non-parole period for the latter offending of at least four-fifths of the sentence.  During sentencing submissions counsel for the appellant accepted that the imposition of a non-parole period of four-fifths of the head sentence was appropriate.  On appeal, Mr Kane accepted that the fixing of a non-parole period of four-fifths of the head sentence, where the sentencing judge had utilised s 18A, did not disclose error. 

4. In my view this is unsurprising giving the provisions of s 32(5a) of the Sentencing Act which provides:

   (5a) If—

   (a)     a court sentences a person under section 18A to the 1 penalty for a number of offences; and

   (b)     a mandatory minimum non-parole period is prescribed (mandatory period) in respect of any of those offences,

   any non-parole period to be fixed by the court under that section—

   (c)     must be a period not less than the mandatory period prescribed in respect of the relevant offence; and

   (d)     if there is more than 1 such offence in respect of which a mandatory period is prescribed—must be a period not less than the greater of any such mandatory period; and

   (e)     must be commenced or be taken to have commenced on the date specified by the court (which may be the day on which the person was first taken into custody or a later date specified by the court that occurs after the day on which the defendant was taken into custody but before the day on which the person is sentenced).

   Note— See PNJ v The Queen [2009] HCA 6.

5. Given that the so-called four-fifths rule applied to the charge of aggravated causing death by dangerous driving, s 32(5a)(c) of the Sentencing Act applied once the sentencing judge utilised s 18A.  In my view, there was no error in the approach adopted by the learned sentencing judge in fixing the relevant non-parole period. 

6. Accordingly, given my view that there are no proper grounds to interfere with the head sentence, it follows that no basis exists to interfere with the non-parole period. 

   Conclusion

7. I would dismiss the appeal