R v WILLIAMS No. Sccrm-03-143

R v WILLIAMS
[2003] SASC 349
Court of Criminal Appeal: Doyle CJ, Prior and Vanstone JJ (Ex tempore)

DOYLE CJ. This is an application for leave to appeal against a sentence imposed by the District Court.
The applicant pleaded guilty to two counts. The first was a count of using a motor vehicle without consent of the owner contrary to s 86A of the Criminal Law Consolidation Act 1935 (SA) (the Act). That offence attracted, in the circumstances, a sentence of imprisonment for not less than three months and for not more than four years.
The second count to which he pleaded guilty was driving a motor vehicle knowing that the act was likely to endanger the lives of others, intending to endanger their lives or being recklessly indifferent to that danger contrary to s 29(1) of the Act. That offence attracted a maximum punishment of imprisonment of 15 years.
In brief, a friend came to the applicant’s home with a motor car that the applicant knew was stolen. The applicant and the other man set off, the applicant being the driver. Earlier in the day, without the applicant being in any way involved, the car had been involved in an attempted robbery. Not long after the applicant set out, the car was sighted by the police and they gave chase. There followed a chase for some 10 to 15 minutes during which the applicant drove at high speeds in an extremely dangerous manner. This was during peak hour morning traffic.
The applicant pleaded guilty to this count on the basis that it encompassed a series of separate incidents in which he drove in a very dangerous manner, clearly endangering the lives of other people on the road. The incident came to an end only when the motor car ran out of petrol. Fortunately, no-one was injured, although as the judge said, it seems a miracle that no-one was injured. The car was damaged to the extent of about $2500.
The applicant was 23 years of age. He is an Aboriginal. He was raised by his grandparents and after his grandmother died when he was 14 years of age, he lived with various relatives. He did not have a stable home. In his late teens, he coped with a number of adverse events by taking to alcohol and drugs and he became a heroin addict.
The applicant has a significant criminal record. He has committed offences as a young offender and as an adult. He was sentenced to imprisonment by the District Court on 19 January 2001 and again on 25 June 2001. These sentences were for robbery with violence, assault occasioning actual bodily harm and aggravated serious criminal trespass. The appellant had been released on parole on 24 June 2002, the present offences being committed on 29 August 2002. It is a circumstance of aggravation that the offences were committed while on parole.
On the date when he was sentenced, the appellant had a balance sentence to serve on the earlier offences of two years three months and 19 days. That sentence had to be added to the sentence which is now under appeal.
In his favour, the appellant pleaded guilty at an early stage. The judge accepted that he was contrite. The judge imposed a single sentence of imprisonment for four years 10 months. But for the plea of guilty, the sentence would have been six years. The judge reduced the sentence on account of time already spent in custody to three years nine months. When that was added to the unexpired balance to be served, the total head sentence amounted to six years, 19 days. The judge fixed a non-parole period of four years. The judge also disqualified the appellant from holding a driver’s licence until further order.
These were serious offences. Pursuits of this kind by the police are unfortunately common. The offences required the imposition of a sentence which would have a significant deterrent element. The applicant’s bad record meant that it was not possible to extend to all of the leniency that otherwise might have been extended.
Complaint is made on the application for leave to appeal that the head sentence and the non-parole period are manifestly excessive. On the face of things, that submission has no reasonable prospect of success. The seriousness of the offences, the need for a deterrent sentence and the applicant’s poor record all support the conclusion that the judge reached. The sentence is a substantial one but there is no reasonable prospect of it being held to be excessive.
The complaint of greater substance is that the judge failed to have adequate regard to the fact that the applicant is an Aborigine and that the judge failed to have adequate regard, bearing that in mind, to his disturbed upbringing, to the impact on him of a lengthy prison sentence, and to the availability of rehabilitation programs intended for aboriginal persons.
It is true that the appellant’s background is a sad one and that his upbringing probably left him ill-equipped to cope with the circumstances of life. His upbringing and the subsequent drug abuse provide a background to the offending which may indicate that he is not entrenched in criminal conduct. Nevertheless, his record shows that something has to be done to bring home to him that this kind of conduct cannot be accepted and will encounter severe consequences.
Moreover, there is nothing in the judge’s reasons to indicate that he overlooked any of the relevant matters. They are referred to by the sentencing judge with the exception of the appellant’s Aboriginality, but that is something that cannot have escaped the judge. It was referred to in sentencing submissions before the judge, although not heavily emphasised.
It is regrettable that a young man faces a substantial sentence of imprisonment like this but there are situations in which there is little that the court can do, other than impose a substantial deterrent sentence and hope that that has the desired effect.
The application for leave to appeal first came before a judge of this Court who refused leave to appeal. The applicant requested the application be considered and determined by the Full Court and requested that the matter be listed for oral argument. The Full Court has ordered accordingly and has now heard that argument.
I have taken into account the submissions before the sentencing judge, the remarks of the sentencing judge and the further submissions put to the court today. Having considered all these matters, my view is that the appellant has no reasonable prospects of success and I would refuse leave to appeal.
The order of the court is that the application for leave to appeal be refused.
PRIOR J: I agree.
VANSTONE J: I too agree.

[2003] SASC 349

17 September 2003