R v Wooldridge

[2015] SASCFC 125

Supreme Court of South Australia

(Court of Criminal Appeal)

R v WOOLDRIDGE

[2015] SASCFC 125

Judgment of The Court of Criminal Appeal

(The Honourable Acting Chief Justice Gray, The Honourable Justice Peek and The Honourable Justice Nicholson)

3 September 2015

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

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

CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - SINGLE SENTENCE FOR MULTIPLE OFFENCES

Appeal against sentence. The appellant pleaded guilty to four counts of causing death by dangerous driving and one count of causing serious harm by dangerous driving. The appellant was sentenced to imprisonment for four years and two months with a non-parole period of two years.  The sentence was not suspended.  The appellant was also disqualified from holding or obtaining a driver's licence for a period of 10 years.

The appellant contends that the sentence which started at seven years before allowances is manifestly excessive and that the sentencing Judge erred in considering the proper test for and  in failing to suspend the period of imprisonment.

Held (per the Court):

1.  Appeal allowed.

2.  The starting point of seven years was too high to an extent such that the head sentence as ordered by the Judge is manifestly excessive.

3.  The District Court sentence is set aside.

4.  The appellant is resentenced to the one penalty of imprisonment for all five offences of three years, one month and one week with a non-parole period of one year, five months and one week, suspended.

5.  With respect to count one, the appellant is to be disqualified from holding or applying for a driver’s licence for a period of 15 years from 3 September 2015.

6.  With respect to each of the remaining four counts, the appellant is to be disqualified from holding or applying for a driver’s licence for a period of 15 years with each such disqualification to be served, as to ten years, concurrently with, and as to five years, cumulatively upon the 15 years ordered for count one, giving rise to a total period of disqualification of 35 years.

The approach to sentencing multiple counts of causing death or harm by dangerous driving when all arise from the same act of dangerous driving, considered and discussed.

Criminal Law Consolidation Act 1935 s 19A; Criminal Law (Sentencing) Act 1988 s 10, s 10C, s 18A, s 31, s 38, referred to.
R v Johnston (1985) 38 SASR 582; R v Payne [2004] SASC 160, (2004) 89 SASR 49; R v O’Toole [2013] SASCFC 18, applied.
R v Singh [2011] SASCFC 128, (2011) 111 SASR 219; Markarian v The Queen [2005] HCA 25, (2005) 228 CLR 357; R v Van Der Heyden (1990) 55 SASR 316, discussed.
R v Nemer [2003] SASC 375, (2003) 87 SASR 168; R v Spong (2008) 100 SASR 55; R v Thach; R v Chau (2010) 203 A Crim R 510; R v Nozuhur [2013] SASCFC 81; R v Watkins [2013] SASCFC 150, (2013) 118 SASR 342; R v Hietanen (1989) 51 SASR 510; R v Moore (1989) 153 LSJS 201; The Queen v Esposito (1985) 38 SASR 574; R v Hicks (1987) 45 SASR 270; Timbrell v The State of Western Australia (No 2) [2013] WASCA 269; R v Ceruto [2014] SASCFC 5; R v Janceski [2005] NSWCCA 288; R v Copeland (No 2) [2010] SASCFC 61, (2010) 108 SASR 398; R v Bagnato [2011] SASCFC 161, (2011) 112 SASR 39; Pearce v The Queen (1998) 194 CLR 610; R v AB [2011] NSWCCA 229; The Attorney-General v Tichy (1982) 30 SASR 84; R v Symonds [1999] SASC 217; House v The King (1936) 55 CLR 499; R v Lutze (2014) 121 SASR 144; Police v Chilton (2014) 120 SASR 32; Robinson v Police [2014] SASC 155; Noble v Police [2014] SASC 156; Wessling v Police (2004) 88 SASR 57; R v Kruger (1977) 17 SASR 214; R v Wacyk (1996) 66 SASR 530, considered.

R v WOOLDRIDGE
[2015] SASCFC 125

Court of Criminal Appeal:   Gray ACJ, Peek and Nicholson JJ

THE COURT

Introduction

1. The appellant has appealed against a sentence, imposed in the District Court, of four years and two months imprisonment with a non-parole period of two years, following his plea of guilty to four counts of causing death by dangerous driving and one count of causing serious harm by dangerous driving.[1]  The appellant was also disqualified from holding or obtaining a driver’s licence for a period of ten years.[2]  The prison sentence was not suspended.

   [1] Subsection 19A(1) of the Criminal Law Consolidation Act 1935 provides (in part):

   A person who-

   (a)drives a vehicle or operates a vessel in a culpably negligent manner, recklessly, or at a speed or in a manner dangerous to any person; and

   (b)by that culpable negligence, recklessness or other conduct, causes the death of another,

   is guilty of an indictable offence.

   Subsection 19A(3) is in analogous terms with reference to the causing of harm or serious harm to a person.

   [2] Subsection 19A(1)(a)(i) (under the heading “Maximum penalty”) of the Criminal Law Consolidation Act.

2. The appellant has raised the following grounds of appeal.

   1.[Permission to appeal on this ground refused by a single Judge; the ground was not reagitated at the appeal].

   2.Further, or in the alternative, the outcome of the sentence is manifestly excessive.

   3.Further, or in the alternative, the learned sentencing Judge erred in considering the proper test of whether the sentence of imprisonment should be suspended pursuant to section 38 of the Criminal Law (Sentencing) Act 1988.

   4.Further, or in the alternative, the learned sentencing Judge erred in failing to suspend the period of imprisonment imposed.

   As far as ground 2 is concerned, the focus of the appellant’s argument is to the effect that the head sentence imposed is manifestly excessive.  If this ground were to succeed, the appellant further submitted that on a resentencing by this Court, it would be open to it to suspend any new term of imprisonment imposed.

   The accident and aftermath 

3. On 1 December 2014, the appellant’s culpably negligent driving caused a motor vehicle accident which, given its horrific consequences, was and remains an unmitigated tragedy.

4. The appellant, who was 64 at the time, was driving along Main Road 300 towards the T-junction intersection with the Princes Highway in the vicinity of Hatherleigh in the South-East of the State.  He was unfamiliar with the road and the location and was engaging with the Global Positioning System (GPS) device in his vehicle.  An agreed cause of the accident and basis for sentencing is that the appellant, in effect, distracted himself by looking at his GPS for approximately ten seconds such that he failed to observe his approach to the intersection.  As a consequence, he drove directly onto the Princes Highway without giving way and without appreciably reducing his speed. 

5. Whilst it is agreed that the appellant was distracted by looking at his GPS for ten seconds or so, this is to be seen as an ex post facto rationalisation; an attempt to explain or understand how it was that the appellant drove in such a culpably negligent manner as to cause the accident.  However, whether or not the appellant stared fixedly at the GPS for such a long period of time (which seems, intuitively, unlikely),[3] or whether the appellant, whilst studying the GPS, glanced up and at the road for one or more fleeting moments during that period does not really matter.  The important factual basis underlying the admitted culpably negligent driving is that there were, at least, five indicators of the approaching intersection and of a prospective need to give way, all of which the distracted appellant failed to observe either at all or in time.  They were:

   (i)an advisory give-way sign approximately 240m from the intersection with the Princes Highway;

   (ii)a give-way sign situated just before the intersection itself;

   (iii)white line markings on the road confirming the cessation of Main Road 300 and the potential for a need to give way;

   (iv)black and white directional signs designating the end of Main Road 300 (on the other side of the Princes Highway as it formed the cross piece to the T-junction); and

   (v)the geography of the intersection itself observable on approach.

   [3]    Common experience suggests that an uninterrupted period of ten seconds is a long time for one’s eyes to be diverted from the road whilst also maintaining, during that period, steady passage along the road without veering off.

6. The accident occurred during the day time and in good driving conditions.  Whilst there is a slight curve to Main Road 300 as the T-junction is approached, the T-junction itself is observable for some distance on approach, provided the driver is keeping a proper lookout and concentrating.

7. The appellant, at all relevant times, was driving within the speed limit applicable to that section of Main Road 300.  There is no evidence to suggest that he was not driving at a speed appropriate to the conditions on that day apart from, of course, during the period when, in the ordinary course, he should have slowed as he approached the intersection.  The appellant’s speed upon entering the intersection was approximately 80kms per hour, which was the approximate speed he had been maintaining along the open road.  A dashboard mounted camera in the appellant’s vehicle recorded the vehicle as swerving at the very last moment before the collision and after having already entered the intersection. 

8. At the time the appellant entered the intersection, a white truck towing a trailer was travelling along the Princes Highway from the appellant’s right and towards the intersection.  A collision was inevitable.  The appellant struck the trailer causing it to move in an anti-clockwise direction such that it spun 90 degrees into the immediate path of another vehicle travelling along the Princes Highway from the appellant’s left.  It was not possible for the driver of that vehicle to avoid a collision with the trailer.  The driver and three of his passengers were killed immediately upon impact.  Those killed were Beverley Kahn aged 68, Michelle Doyle (the daughter of Beverley Kahn) aged 45, and Joshua Doyle (the driver) and Jessica Doyle, aged 22 and 16 respectively (the children of Michelle Doyle).  In addition, a fifth person, Bradley Kelly aged 21, suffered serious injuries, including bilateral fractures of the sacral vertebrae (from which, it seems, he is expected to recover) and significant ongoing psychological trauma.  

9. Immediately after the accident, the appellant admitted to witnesses that he had been preoccupied with his GPS at the time of the collision, because he had not known where he was, and that he had not seen the intersection or any of the indicators that he was approaching it.

   The Judge’s approach to sentencing

10. The Judge correctly identified the maximum penalty for each of the cause death offences and for the cause serious harm offence as imprisonment for 15 years together with disqualification from holding or obtaining a driver’s licence for not less than ten years.  His Honour noted that the appellant had pleaded guilty at the first available opportunity in the Magistrates Court.  There was no reason not to allow a discount of 40 per cent on account of these early guilty pleas, being the maximum discount available, in the circumstances, in accordance with the relevant legislation.[4] 

    [4] Section 10C of the Criminal Law (Sentencing) Act 1988.

11. Most understandably, the Judge was significantly affected by the unusual circumstances of the offending before him and the tragic nature of its consequences. 

    Members of the extended families of the victims and, of course, you, Mr Wooldridge and your extended family, have all had your lives adversely affected by the tragic event.

    Sadly, there have been several cases in recent times of multiple deaths considered by courts of this State.  But I have to say I have never heard such profound grief as expressed by the victims of this tragic accident either orally before me or in the victim impact statements read by others.  As I have noted this morning, I have also received and read other statements from family, friends of the victims and a representation of the communities so affected and which highlights the impact on small communities of such losses. 

    The enormity of the loss is amplified for Mr Darren Doyle and Mr Charles Kahn.  Mr Doyle lost his entire family, his wife Michelle, their children Josh and Jess and mother-in-law Beverley.  Mr Charles Kahn lost Beverley, his wife of 51 and a half years, their daughter Michelle and the two grandchildren, Josh and Jess. 

    Beyond the extended families, as I say, the tragic event has adversely affected the communities in which they lived, in which they worked, but also, of course, your community, Mr Wooldridge.

12. His Honour quoted from passages in the reasons of former Chief Justice King in R v Johnston.[5]  King CJ was concerned to emphasise the difficulty for the courts and for the public in reaching a proper understanding of the role of deterrence in cases concerning persons who drive dangerously.[6]  The Judge also drew attention to an earlier passage in Johnston,[7] where King CJ considered the need for a proper assessment of the extent of the moral turpitude involved in the offending.[8]

    [5] (1985) 38 SASR 582.

    [6]    R v Johnston (1985) 38 SASR 582 at 586 (King CJ, with whose reasons White J agreed).

    [7]    At 585.

    [8]    Moral turpitude and, in particular, turpitude are expressions of protean meaning.  The word turpitude generally refers to the notions of vile, base, ugly or shameful, and the phrase moral turpitude, as used in the present context, refers to some level of depravity, infamy or grossness in wrong doing.  See, Trischa Mann (ed), Australian Law Dictionary (Oxford University Press, 2^nd ed, 2013), published online in 2015 by Oxford University Press and available at

13. We depart from our summary of the Judge’s remarks for the moment to observe that, whilst the accident was caused by gross carelessness, no excessive speed, no deliberate flouting of the road rules or positive acts of recklessness (such as racing or skylarking, or driving aggressively) and no drugs or alcohol was involved.  As will be explained further below, this is an important sentencing consideration, because it bears on the weight to be given to the role of deterrence and on the nature and extent of the appellant’s moral turpitude. 

14. Various of the observations of King CJ in Johnston, including those to which the Judge drew attention, provide clear and sound guidance to the approach that should be taken when sentencing for dangerous driving offences.  We will return to the former Chief Justice’s observations, in this respect, in due course.

15. We return to the Judge’s sentencing remarks.  His Honour noted that the onerous task of sentencing was made even more onerous given that the appellant had led an otherwise blameless life for some 65 years.  The Judge described the appellant as having “an unblemished record”[9] and as someone “who is a pillar of [his] community”, who has lived a life, particularly in the CFS (Country Fire Service), devoted to assisting others and who has been highly decorated.  The Judge continued as follows.

    You are not a murderer.  You did not commit manslaughter.  You did not intend to cause such a catastrophic event.  It is probably even more difficult for the victims’ families here to realise that you are just a normal person with similar background and life experiences as themselves. 

    You all know the circumstances of the accident.  There were no aggravating circumstances.  You, Mr Wooldridge, had not consumed any alcohol.  You were not speeding.  You were not driving aggressively...

    There was foliage on both sides of the road.  It was for that reason that an advisory give-way sign had been placed 240 m from the intersection with the highway.  You should have seen it.  You did not see it because you chose to check your GPS because you were unfamiliar with the road.  Now who of us can honestly say that we have not been distracted when altering an air conditioner, radio or some other device in the car.

    The fact of the matter is you were unfamiliar with that road.  That is why it was so dangerous for you to do that.  It was grossly negligent for you to take your eyes off that unfamiliar road for such a long time as is calculated, namely about 10 seconds.  By the time you looked up, the truck... with an unloaded trailer appeared to your right.  ...

    [9]    The appellant has no prior criminal record whatsoever.

16. The Judge refused to categorise the appellant’s offending as “falling within the low end of the scale” for this type of offending, because of the relatively extended period during which the appellant’s gross inattention subsisted.  However, the Judge again acknowledged the absence of typical aggravating features, such as the presence of alcohol,[10] speeding or erratic driving. 

    [10]   And, we interpolate, as has become more prevalent in later times, drugs.

17. After acknowledging the immeasurable loss, pain and anger experienced by the family and friends of the victims, the Judge pointed out an important role of the court when sentencing for this offence.

    It is important, however, for all members of the respective victims’ families to understand the role of this court.  Not only am I incapable of placing a value on a human life, it is wrong in law to even attempt to do so. 

    In this context, his Honour went on to quote from the Court of Criminal Appeal in R v Payne.[11]

    The offence of causing death by dangerous driving is a serious offence.  It is particularly serious because it involves the taking of a life.  The role of the court, however, is not to measure the value of the human life nor to punish a life for a life.’  It said ‘the practice of sentencing, albeit under a different regime, shows a sentence of imprisonment of the order of three years not suspended will often be appropriate.  There will be cases warranting a heavier penalty linked to aggravating circumstances, particularly when there is bad driving which is at the heart of the offence.  There will be cases warranting a lesser sentence or an order suspending the sentence, often where the death is caused by momentary inattention and reflects personal mitigating circumstances.

    [11]   R v Payne [2004] SASC 160; (2004) 89 SASR 49 (the Court, comprising Doyle CJ, Mullighan, Nyland, Sulan and Anderson JJ, delivered a single judgment). The Judge does not appear to have quoted directly from the published reasons in Payne but (quite reasonably, given the nature and purpose of orally delivered sentencing remarks) appears to have collated a number of propositions from paragraphs [68]-[72].

18. The Judge noted that there was no doubt about the appellant’s remorse as made plain from the letter of apology, the appellant’s interview with the police and his “immediate pleas of guilty”.  The Judge then set out in some detail the appellant’s relevant personal circumstances.  The matters adverted to included: the appellant’s devastation as a result of the accident; his thoughts that it would have been better if he had died and the likelihood that he was suffering from some level of post-traumatic stress disorder; the appellant’s age (65 years) and the fact that he was before the Court for the first time in his life with an unblemished record; the fact that the appellant has now been suspended from involvement with the CFS; the fact that his wife suffers from epilepsy as a consequence of which she has difficulty driving at night; the fact that the appellant has devoted much of his life to his community, not just in his role with the CFS but also as a player, coach and an administrator of hockey in the region; and the fact that the loss of the appellant’s licence will be a burden because his income in the past depended upon being able to drive. 

1. The Judge, quite properly, noted that personal deterrence had little role to play in this case.  However, his Honour observed “that principles of general deterrence are paramount for offences such as these.  The road toll speaks for itself”. 

2. The Judge turned to explain his method of arriving at the sentence he was to impose.  After referring to the conspectus of decisions, concerning this offence, summarised in R v Singh,[12] and the various starting points for the head sentence imposed in a number of those cases, his Honour indicated his intention to exercise the power available under section 18A of the Criminal Law (Sentencing) Act 1988 to impose one penalty for all five offences “as they arose out of the one course of driving”. 

   [12] [2011] SASCFC 128; (2011) 111 SASR 219.

3. His Honour continued:

   I am obliged to concentrate upon the manner of driving rather than the tragic consequences which followed. 

   The court, however, has stressed that the larger the number of deaths and serious injury the vastly more seriously must the offending behaviour be treated.  That is so even if it was only one act of culpable driving and it was pure happenstance that more than one person was in the victims’ vehicle.  As in this case, you could not possibly have known how many people were in that vehicle.  While there are no aggravating features, as such, and you are of otherwise impeccable character, the devastating loss of four lives and the serious injury to the other is a paramount consideration in sentencing, while concentrating upon your manner of driving. 

   With this basis in mind, the Judge nominated a single starting point of seven years imprisonment.  His Honour recognised: “that starting point might seem severe on the case law, but it reflects the loss of those lives.”

4. His Honour allowed the full available discount of 40 per cent for the pleas of guilty which resulted in the head sentence of imprisonment, ultimately imposed, of four years and two months. The Judge proceeded to consider and to set a non-parole period. His Honour noted that, in the absence of special reasons, section 32(5)(ba) of the Criminal Law (Sentencing) Act 1988 would require him to set a non-parole period for each of the four offences of causing death, equivalent to four-fifths of the head sentence.  However, his Honour was satisfied that, in this case, there were special reasons in the nature of those envisaged by the legislation and that he was, as a consequence, relieved from having to fix this otherwise mandatory minimum non-parole period.  His Honour fixed a non-parole period of two years.  There has been no challenge by either party to his Honour’s approach to the fixing of the non-parole period, or to the non-parole period itself. 

5. The Judge then turned to the difficult question of whether or not the sentence of imprisonment imposed might be suspended.  His Honour observed, in this respect, that if he had been restricted to considering the appellant’s personal circumstances, “there would be abundant good reason to suspend the sentence”.  However, his Honour continued:

   But my task is not limited to your circumstances, as significant as they are.  I must weigh against it the seriousness of the offences, in particular the devastating loss of four lives and the serious injury to the other.

   I have come to the conclusion, after much consideration, that your offences and their consequences are just too serious to permit suspension of the sentence.  Ultimately I cannot find sufficient good reason to suspend the sentence.

6. The Judge directed that the head sentence of four years and two months and the non-parole period of two years were to commence on the day of sentencing, that is, 25 March 2015.  His Honour also ordered a licence disqualification for ten years with reference to each offence (the minimum to be imposed under the relevant legislation) but further ordered that each period of disqualification was to be served concurrently with the others.

   The proper approach to sentencing for an offence of causing death by dangerous driving

7. Sentencing for the offences of causing death by dangerous driving and causing serious harm by dangerous driving can be a particularly difficult exercise.  The difficulties will be exacerbated when the same act of driving causes the death of, or harm to, more than one victim.  In this case, the appellant has been charged with, and had to be sentenced for, five separate offences.[13]  This was so even though the appellant committed just the one act of dangerous driving which caused just the one accident.  The consequences of such a single act of driving will be, as the Judge pointed out, largely a matter of happenstance or chance.  It is possible that no one will be killed or injured or that one or a number of persons will be killed or injured.  In this case, the appellant’s dangerous driving had the catastrophic consequence that four people were killed and another very seriously injured.

   [13] And notwithstanding that, pursuant to section 18A of the Criminal Law (Sentencing) Act 1988, there is a discretion, typically exercised, to impose just the one penalty for all offences.

   General principles

8. The maximum penalty prescribed by Parliament is an important consideration for the reasons given by the plurality in Markarian v The Queen.[14] 

   [C]areful attention to maximum penalties will almost always be required, first because the legislature has legislated for them; secondly, because they invite comparison between the worst possible case and the case before the court at the time; and thirdly, because in that regard they do provide, taken and balanced with all other relevant factors, a yardstick.

   [14] [2005] HCA 25; (2005) 228 CLR 357 at [31] (Gleeson CJ, Gummow, Hayne and Callinan JJ).

9. It is also particularly important to keep steadily in mind the purposes of punishment and the broad objectives of the sentencing process.  A summary of these purposes and objectives was provided by Doyle CJ (with whose remarks, in this respect, both Prior and Vanstone JJ agreed) in R v Nemer.[15] 

   The sentencing of offenders who have committed serious crimes is difficult.

   The judge must impose a sentence arrived at by following the requirements of the Criminal Law (Sentencing) Act 1988 (SA) (the Sentencing Act). This requires consideration, putting things generally, of the penalty fixed by Parliament (usually a maximum only is specified), of the circumstances of the offence and of all of the matters affecting the sentence that are found in the Sentencing Act.

   The sentence imposed in a particular case should reflect certain broad objectives of sentencing. These do not replace the provisions of the Sentencing Act. They describe in broad terms the main objectives of the various requirements in the Sentencing Act. These objectives are the punishment of the offender or retribution (to reflect society's disapproval and rejection of the conduct in question); deterrence of the offender from further offending; deterrence of other persons from offending, and rehabilitation or reform (that is, encouraging the offender to reform and to behave in accordance with the law). Sometimes it is said that these are the means by which the court protects the community.

   In different cases these considerations will operate in different ways and to differing degrees. As has been said, these considerations are no more than guideposts to the appropriate sentence, and sometimes they point in different directions: Veen v The Queen (No 2) (1988) 164 CLR 465 at 476. In a given case considerations of deterrence might point towards a heavier sentence, while considerations of reform might point towards a lenient sentence. Arriving at a sentence in a particular case involves a balancing of all of the matters identified in the Sentencing Act, and the exercise of a judgment in the light of all relevant matters.

   [15] [2003] SASC 375; (2003) 87 SASR 168 at [4]-[7].

10. It is necessary to understand that the “punishment of the offender or retribution”, as one of the objectives of sentencing, is not used in the sense of retaliation for the consequences of the conduct in question, by or on behalf of surviving victims or a victim’s family or a section of the community, but in the sense of reflecting society’s disapproval of, and rejection of, the conduct in question.  This is sometimes described as society’s denunciation of the conduct and can be seen as the punitive element in the process of sentencing. 

11. Also of importance is the fact that the focus of this retribution or denunciation is “the conduct in question”, that is, the accused’s conduct by which he or she has committed the offence.  Of course, in the case of the dangerous driving offences, the consequences of that conduct (the taking of life or causing of harm) underscores or emphasises the seriousness of the driver’s conduct when considered in its full context.  It is the act of killing or harming a victim by the conduct in question, and with the state of mind (in this case, unintentionally) in question, that is to be the subject of, or focus of, denunciation or retribution.  The focus is the act of dangerous driving concerned and this is the focus because the driving has resulted in, albeit unintentionally, death of, or harm to, another person.  However, the focus of denunciation or retribution is not the killing or harming of another person simpliciter.  The point is a subtle but an important one.  As King CJ put it, rather more succinctly, in Johnston,[16] “consequences of conduct are important in the criminal law but they are not the determinant of the moral turpitude involved in the conduct.”

    [16]   At 585.  The full passage is quoted below.

12. We will return to the purposes of punishment when we come to consider the application of principle to the sentencing of the appellant.

    The application of general principle to offences of dangerous driving

13. The approach by King CJ in Johnston[17] was referred to with approval by the court of five judges in R v Payne.[18]

    In R v Johnson (1985) 38 SASR 582 the Crown Prosecutor argued that the prevailing standards of punishment for causing death by dangerous driving were too lenient, and referred to community concern about the number of road fatalities and in particular to the “deadly combination” of youth, speed, alcohol and country roads. We know that the community remains justifiably concerned about the number of road fatalities, and about the particular matters referred to above. The response of King CJ to that submission remains apposite. He said (at 584):

    The Judges of this Court, like all sensible citizens, must share the concern expressed by the Crown Prosecutor on behalf of the government at the number of deaths occurring on the roads and at the continued prevalence of dangerous driving as a cause of such deaths.  The penalties imposed by the courts must be such, within the limits imposed by reason and considerations of justice, as to operate as a deterrent to those who might be inclined to engage in dangerous driving.  We must take care, however, not to allow the continuing road toll to produce knee-jerk reactions.  A proposal to increase the level of prevailing punishments must be judged calmly and dispassionately.  It is necessary to assess what, if any, capacity such an increase would have, to deter possible offenders, and to weigh that capacity, if any, against any negative effects which might flow from the increase in penalties.  The need to satisfy public feeling and to calm public outrage is not to be ignored, but courts must guard against permitting the course of justice to be distorted by the influence of attitudes which are based upon emotion rather than reason.

    He added (at 585 – 586):

    Deterrence undoubtedly ought to be a major consideration in determining the proper level of penalties for this offence.  Many drivers are deterred by the penalties which they might incur for misconduct in the way of driving.  The courts must therefore maintain sentencing standards at levels which will operate as a realistic deterrent.  Deterrence is not, however, the only value involved in the sentencing process.  The sentence should not exceed that which is proportionate to the moral turpitude involved in the crime having regard both to the objective character of the wrongdoing and the qualities of the individual offender.  The prevalence of the crime amongst the young should not lead us to ignore youthful immaturity as a mitigating factor.  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.

    [17] (1985) 38 SASR 582.

    [18] [2004] SASC 160; (2004) 89 SASR 49 at [50] (Doyle CJ, Mullighan, Nyland, Sulan and Anderson JJ).

14. There are two other passages from the reasons of King CJ in Johnston that bear repeating here, because they place in a broader context these important notions of general deterrence and moral turpitude, as referred to in the remarks of the former Chief Justice just set out.  Aspects of these two passages were referred to by the Judge in his sentencing remarks. 

15. On the question of deterrence, King CJ also said this.[19]

    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 threatened imprisonment.  If a driver is not deterred from a dangerous course of driving by the threat of imprisonment for 18 months or two years, is it realistic to suppose that he will be deterred by the prospect of two and a half or three and a half years imprisonment?  The truth is that in the great majority of cases, he simply does not expect to be involved in a serious accident.

    On the topic of moral turpitude, the former Chief Justice said this.[20]

    It is evident then that the legislature attaches great importance to the consequences which flow from the driving.  But the nature of the conduct which is reprobated by [the legislation] is the same; it is heedlessness and recklessness in driving..., not malice.  Few people deliberately cause a serious accident.  The typical dangerous driver does not contemplate the possibility of a serious accident or the possibility of causing death or harm to others.  It is important therefore that in concentrating our attention on the dreadful consequences of the driving, we do not obscure the chasm which exists between the moral quality of heedless or even reckless conduct which causes death or bodily harm and the moral quality of conduct which deliberately inflicts death or bodily harm.  Consequences of conduct are important in the criminal law but they are not the determinant of the moral turpitude involved in the conduct.  Comparisons which are sometimes made between the terrible consequences to the victim and the punishment inflicted on the wrongdoer seem to reflect a desire for a reversion to a form of lex talionis [the law of retaliation] rather than an attempt to relate the punishment imposed to the moral quality of the conduct which is punished or to any rational purpose of punishment. 

    [19]   R vJohnston (1985) 38 SASR 582 at 586.

    [20]   At 585.

16. These remarks by King CJ were expressed in the context of an earlier form of the legislation that proscribed the commission of this offence.[21]  However, the essence of this type of offending has remained the same and the former Chief Justice’s remarks and their, with respect, compelling logic remain apposite.

    [21] Section 14 of the Criminal Law Consolidation Act 1935, repealed by Criminal Law Consolidation Act Amendment Act (No 2) 1986 (SA) s 3.

17. In Payne, the Court provided these additional observations.[22]

    In that connection, it is necessary to emphasise that the function of a sentencing court is to arrive at an appropriate sentence having regard to the maximum penalty (10 years imprisonment for a first offence of causing death by dangerous driving) and having regard to all relevant circumstances.  The court is not fixing the punishment to be imposed for the taking of a life.  The driver of a motor car might kill a person in circumstances amounting to murder (attracting a maximum punishment of imprisonment for life); amounting to manslaughter (attracting the same maximum punishment but almost always a lesser punishment than would be imposed for murder);  causing death by dangerous driving (attracting a maximum punishment of 10 years imprisonment for a first offence);  or amounting only to the offence of driving without due care (attracting a maximum punishment of a fine not exceeding $1,250 and disqualification from holding or obtaining a driving licence for a period fixed by the court).  The differences in the maximum penalties reflect differences in moral culpability on the part of the offender, as well as Parliament’s assessment of other factors relevant to the offence.  The court in fixing sentence is not simply determining the punishment appropriate for the taking of a life.

    We make this point because we understand the sentiment expressed by the family of a person killed by the driver of a motor vehicle, that they have suffered the loss of the life of a family member.  The value of that life, and its impact on the family of the victim, are not affected by the category into which the offence of the driver is placed, or by the circumstances of the offender.  But the punishment of the offender must be affected by those matters.

    [22] [2004] SASC 160; (2004) 89 SASR 49 at [52]-[53].

    The starting point when sentencing for a single offence

18. We have described the appellant’s act of dangerous driving in this case as unintentional.  We use the term unintentional guardedly.  It is true that the appellant’s actions in engaging with his GPS device and not keeping a proper lookout were willed and intentional.  It was these actions that comprised his act of dangerous driving.  However, the actions were willed and intentional in the same sense as many driving related and driving unrelated actions, engaged in by many drivers when in charge of a motor vehicle, are willed and intentional.  In the normal course, much of such conduct occurs spontaneously and without thought given to potential consequences.  A driver might turn or divert their attention from the road, albeit momentarily, to speak with the person in the front passenger seat or, even more dangerously, to small children in the rear seat; a driver, engaged in conversation, may do this repeatedly whilst endeavouring to, by and large, keep their eyes on the road; a driver may seek to adjust the sound system or the air conditioning system in the motor vehicle in any number of ways; or a driver may simply be preoccupied and distracted by the thoughts of the day.  Examples can be multiplied.  These are all willed and intentional acts but there is no intention to drive dangerously, much less to kill or cause injury to another. 

19. We refrain from commenting specifically, in this context, on the situation where a driver deliberately engages with a device such as a mobile phone, particularly by way of reading and typing and sending text messages.  The using of a mobile phone, depending on the circumstances, may constitute the gravamen of an offence of, for example, driving without due care or causing death by dangerous driving.  According to reports in the media and repeated statements by the police, the use of mobile phones whilst driving has become ubiquitous and poses serious risks to other motorists.  It is an activity that is roundly condemned by the authorities and is the subject of regular warnings and attempts at education through the media.  It may be that this activity raises considerations additional to those relevant to the type of spontaneous activities just now described.

1. No doubt many accidents are caused as a result of the inattention we have just described and it will be a matter of fact and degree, in each case, as to whether the driving is to be characterised as, for example, without due care[23] or as dangerous driving, essential to the more serious offences presently under consideration.  Even where the lack of attention constitutes dangerous driving, the more serious offence will not be committed unless death or harm to another person results. 

   [23] Giving rise to a summary offence pursuant to section 45 of the Road Traffic Act 1961 (SA) for which the penalty is a fine, unless the offence is in the aggravated form in which case it may incur a term of imprisonment of up to 12 months.

2. Having said this, there is no doubt that the actions of the appellant comprised a serious example of this type of failure to pay proper attention.  This is so, because of the length of time and/or number of times during which the appellant must have been distracted, the fact that he did this whilst driving on an unfamiliar road and in an unfamiliar locality, and the fact that he did this whilst driving at some speed on the open road, notwithstanding that he was driving within the speed limit. 

3. Nevertheless, this serious conduct engaged in by the appellant is to be distinguished from those situations where a driver deliberately drives dangerously or deliberately takes the risk of compromising his or her ability to drive safely, such as by deciding: to drive at excessive speed; to drive at an inappropriate and unsafe speed for the conditions; to drive aggressively and recklessly; to drive after having consumed alcohol or drugs; or to drive contrary to the road rules, including the deliberate decision to disobey traffic light signals or even, perhaps, the deliberate decision to use a mobile phone while driving, other than by an appropriate (hands free) method.

4. In Johnston,[24] King CJ referred to the distinction to be drawn between the moral quality of the conduct involved where death is caused by dangerous driving and the moral quality of the conduct involved where death or serious harm is deliberately inflicted (for example, manslaughter).  Distinctions, of a similar character, between the different types of conduct that qualify as dangerous driving, also must be recognised.

   [24]   At 585.

5. This Court, in R v Singh,[25] has recently canvassed the penalties imposed in a number of cases over the years involving the offence of causing death by dangerous driving.  Singh concerned a defence appeal.  The appellant had pleaded guilty to one count of causing death by dangerous driving and one count of causing serious bodily harm by dangerous driving. 

   [25] [2011] SASCFC 128; (2011) 111 SASR 219 (Sulan, David and Peek JJ).

6. The offending occurred during the aftermath of an event of high speed racing in a built-up area.  When the driver in the other car pulled out of the race, the appellant continued at high speed (approximately 111-119kms per hour) and collided with another vehicle at a T-intersection.  At the time of the collision and after having applied the brakes, the appellant’s vehicle still was travelling between 86 and 96kms per hour.  Whilst the appellant was no longer racing at the time of the collision, he was travelling at what was described by the sentencing Judge as “an intolerably high speed”. 

7. The appellant was relatively young (24 years of age) and had led what was described as “an impeccable life” until then.  He had a good employment history and no previous record for driving offences.  The appellant pleaded guilty at the earliest opportunity and was genuinely remorseful.  As in the present case, there were personal considerations favourable to the appellant.  However, the deliberate conduct involved in, and the nature of, his act of dangerous driving serves to distinguish Singh from the present case.  The criminal conduct in Singh was significantly more serious and so much so that the issues of personal and general deterrence and the moral turpitude involved had to loom large in the sentencing process. 

8. On appeal, it was argued that the initial sentence of four years and nine months with a non-parole period of three years and two months was manifestly excessive.  This argument was accepted; the appeal was allowed and a new sentence imposed of two years and six months imprisonment, reduced from four years imprisonment on account of the pleas, with a non-parole period of 15 months.

9. In arriving at this conclusion, Sulan J (with whose reasons David and Peek JJ agreed) reviewed a number of the relevant authorities including, in particular, the cases of Johnston and Payne in terms of general principle, and also a number of other cases in terms of the sentences imposed including, R v Spong,[26] R v Thach; R v Chau[27] and what was described as an “historical chart of sentences in the District Court for offences of causing death and causing harm by dangerous driving”.[28]  According to Sulan J,[29] this historical chart revealed that, in 11 cases in which there were multiple offences of causing death and causing harm by dangerous driving, the starting point in four cases was four years imprisonment or less, in three cases it was less than six years imprisonment, in three further cases it was six years imprisonment and in one case it was seven years imprisonment. 

   [26] (2008) 100 SASR 55.

   [27] (2010) 203 A Crim R 510.

   [28]   R v Singh [2011] SASCFC 128; (2011) 111 SASR 219 at [32]

   [29] At [35].

10. Sulan J went on to observe as follows.[30]

    In the case of the seven-year starting point, the offending was aggravated and involved a high speed police pursuit at night, reaching speeds of up to 163 kph.  The defendant had switched off the lights of the car.  He had been consuming methylamphetamine.  He was driving unlicensed and he was on parole.  He had numerous prior convictions, including two previous high speed chases.

    In the three cases in which the starting point was six years imprisonment, two involved the defendant being seriously affected by alcohol.  The third case involved excessive speed of up to 140 kph on Tapley’s Hill Road.  The defendant was a probationary licence holder.  Others in the car had asked him to slow down.  One of his passengers died and two were injured.  Although the starting point was six years imprisonment, the head sentence was four years and two months imprisonment, with a non-parole period of 21 months.

    [30]   At [36]-[37].

11. As has been noted elsewhere, and as is well understood, comparisons of other cases can only be of limited assistance.[31] 

    No two cases are alike, particularly given that any individual sentencing task will embrace consideration of the objective features of the particular offending itself and of matters personal to each offender.  However, “some indication of the range of sentences for similar offending can be gleaned and can be a guide when considering whether [a particular] sentence is manifestly excessive”.

    [31]   R v Nozuhur [2013] SASCFC 81 at [55] (Nicholson J) (footnote omitted). See the more extended discussion of the value of but caution to be exercised with respect to such comparison exercises, by Sulan J at [32]-[34] and Peek J at [48]-[53] in R v Singh, and see also R v Payne at [87]-[88].

12. In addition to our consideration of the conspectus of cases reviewed by the court in Singh and of the similar exercise undertaken by the court in Payne (as at 2004) we have reviewed a number of appellate decisions in this area.[32]  The variables as to the facts and sentencing regimes applicable across the years render such a comparison exercise particularly problematic for this type of offence.  Nevertheless, one can, in this way, acquire a sense of the range of penalties imposed, bearing these variables in mind.  However, the shortcomings in the comparison exercise do serve to emphasise the importance of applying sentencing principles to the particular facts at hand. 

    [32]   Including, and in addition to the cases referred to to this point, R v Watkins [2013] SASCFC 150; (2013) 118 SASR 342, R v Hietanen (1989) 51 SASR 510, R v Moore (1989) 153 LSJS 201, The Queen v Esposito (1985) 38 SASR 574, R v Van Der Heyden (1990) 55 SASR 316, R v Hicks (1987) 45 SASR 270, Timbrell v The State of Western Australia (No 2) [2013] WASCA 269, R v Ceruto [2014] SASCFC 5, R v Janceski [2005] NSWCCA 288.

13. In 2004, the court in Payne[33] was asked to provide a sentencing guideline pursuant to Division 4 of Part 2 of the Criminal Law (Sentencing) Act 1988 with a view to increasing the level of punishment for offences of causing death and causing harm by dangerous driving.  The court declined to do so.  However, it was prepared to offer “guidance and explanation” at some length as follows.[34]

    The offence of causing death by dangerous driving, and the related offences the subject of the application, are serious offences.  The offence of causing death by dangerous driving is particularly serious, because it involves the taking of a life.  While not a common offence, or apparently increasing, it contributes to a tally of road fatalities and injuries that cause great financial cost and human cost.  The public are rightly concerned about the deaths and injuries that are caused on our roads. 

    The function of the court is to impose an appropriate sentence for the offence, taking into account the maximum penalty of 10 years imprisonment for a first offence.  The court does not measure the value of a human life, or regard itself as dealing directly with the road toll.  A sentencing court must assess the objective circumstances of the offence, with a view to measuring its seriousness and the culpability of the offender.  The court must also take into account the circumstances of the offender.  Experience shows that the offender will often be a person of otherwise good character with no significant record of offending, who has killed another person as a result of a significant episode of bad driving, involving more than momentary inattention. 

    As the practice of sentencing judges shows, a sentence of imprisonment of the order of three years, not suspended, will often be appropriate.  It will be appropriate despite the reluctance of a court to imprison a person who has no record of offending, and whose prospects of rehabilitation are relatively good.  This reflects the seriousness of the offence, and the fact that it continues to occur. 

    There will be cases warranting a heavier penalty, and sometimes a much heavier penalty.  That will usually be the result of significant circumstances of aggravation, and particularly circumstances linked to the bad driving which is at the heart of this offence. 

    There will be cases warranting a lesser sentence, or an order suspending a sentence of imprisonment.  A lesser sentence will usually reflect a relatively low level of culpability, and often a finding that the death was caused by momentary inattention or carelessness.  A suspended sentence will usually reflect significant personal mitigating circumstances. 

    Our reference to a sentence of three years imprisonment is not an endorsement of that sentence as the right sentence, or as a benchmark.  We refer to it because sentencing practice shows that it has often been considered an appropriate sentence.  We have not been satisfied that the sentencing patterns of the past reflect an inadequate assessment of the seriousness of the offence or inconsistency of approach.

    We simply remind sentencing judges of the need to bear in mind the statutory maximum, and remind them that from time to time there will be cases calling for substantially heavier punishment than a sentence of three years imprisonment.

    [33] [2004] SASC 160; (2004) 89 SASR 49.

    [34]   At [68]-[74].

14. Two points should be made here.  First, the guidance in Payne was given in the context of the maximum penalty for the offence of causing death by dangerous driving then being ten years imprisonment, whereas now it is 15 years imprisonment for a first offence.  Second, the guidance did not take account of the relevance of an early guilty plea and, in particular, the statutory regime that now applies with respect to early pleas of guilty.

15. A very substantial number of the reported decisions in this area concern dangerous driving that involved one or more of the aggravating features earlier identified such as excessive speed or high levels of alcohol, which were central to the characterisation of the driving in question as dangerous and to the assessment of the level of seriousness and the moral turpitude involved.  There have been relatively few cases that have concerned gross inattention simpliciter.  For this reason, additional caution, when resorting to comparison exercises and the guidance in Payne, is called for. 

16. Nevertheless, there is one case, concerning gross inattention, that is of some assistance.  In R v Van Der Heyden,[35] the respondent had been convicted of three counts of causing death by dangerous driving arising out of a single accident.  The respondent, driving a prime mover and trailer, had entered an intersection on a major arterial road against a red light.  The sentencing Judge found that the respondent failed to observe the amber light due to gross and culpable inattention.  The respondent had convictions for driving offences (not involving harm to others) committed more than ten years earlier.  A suspended sentence of 30 months imprisonment with fifteen months non-parole was not disturbed following a Crown appeal.  However, in order to reflect the gravity of the offending and, in particular, that three deaths were caused, the initial licence disqualification of seven years was increased to 12 years.

    [35] (1990) 55 SASR 316 (King CJ, with whose reasons Matheson and Bollen JJ agreed).

17. For the reasons which follow, the present case is one that, for a single offence, warrants a substantially “lesser sentence” within the Payne framework described above.  When regard is had to the purposes of punishment and the objectives of sentencing, the starting point for one count of causing death by dangerous driving by this appellant, in the circumstances of this matter, should be no higher than two and a half years imprisonment.  The starting point for the fifth count of causing serious harm should be no higher than 18 months.   

18. We return to the heartland of the remarks by King CJ in Johnston.[36]  The punishment imposed must be proportional, or bear a proper relationship, to the moral quality of the conduct which is to be punished and it must serve the rational purposes, and only the rational purposes, of punishment.

    [36] (1985) 38 SASR 582 at 585.

19. In this case, the appellant’s moral turpitude was at the low end of the scale with respect to offences of this nature for the reasons already discussed.  The fact that death resulted heightens the seriousness of the culpable negligence by way of gross inattention but it does not add to its essential wrongness or criminality.

20. In addition, this is a case where there is simply no need to consider the question of personal deterrence.  The appellant has been devastated by the consequences of his conduct.  Any remaining perception of a need for personal deterrence can be accommodated with a lengthy licence disqualification.  The appellant is now 65 and it is unlikely that he will drive again and even more unlikely that, if he did, he would commit this offence again.

21. Similarly, and this is an area where we would depart from the Judge in terms of level of emphasis, whilst general deterrence is a consideration, it is not, on the facts of this matter, a paramount consideration.  This is, essentially, for the reasons given by King CJ in Johnston.   However, the case for limiting the role of general deterrence here is stronger.  This is not an occasion to remind people, again, that they will be punished severely and, ordinarily, with a lengthy term of imprisonment, if they kill or harm another person as a result of driving under the influence or driving at excessive speed or whilst street racing.  The conduct engaged in by this appellant was an extreme version of conduct that is lawfully engaged in by many drivers, most days.  There is certainly a need for continuing education and continuing confrontation in this area but the nature of the conduct is such that it will not readily be deterred by imposing a more severe prison sentence than otherwise would be warranted.  As King CJ observed, in this area the possibility of gaol may deter otherwise law abiding citizens but the length of the sentence is unlikely to add to that.  For the reasons earlier given, we leave to another time, the role general deterrence may have to play where deliberate and dangerous use of a mobile phone is involved.  In any event, each case will turn on its own facts.

22. It is, of course, very important to demonstrate the community’s denunciation of the appellant’s criminal conduct.  The imposition of a prison sentence starting at two and a half years will achieve this. 

23. No question concerning rehabilitation arises here.  There is no call for the appellant to be rehabilitated.  He has to this point been a decent law abiding citizen who has contributed greatly to his community.  In many cases, a court is faced with the difficult task of assessing future prospects for rehabilitation.  For example, in Singh, the young man of 24 needed to demonstrate that his prospects of leading a law abiding and productive life in the future were good.  This appellant does not need to demonstrate this. 

24. Finally, a sentence approaching two and a half years imprisonment is still a severe punishment, particularly for a person of 65 who has lived, to this point, a blameless life.

25. For these reasons, this is a case that warrants an appreciably lesser sentence than the guideline sentence of three years imprisonment in Payne.  As indicated there, such a lesser sentence can be justified where it reflects a relatively low level of culpability and often (but not necessarily) a finding that the death was caused by momentary intention or carelessness. 

26. We appreciate that “momentary” may not be an accurate description of the inattention in this case.  However, it is of similar character in terms of the (low) level of moral culpability involved.  Where inattention is concerned, there is a continuum of circumstances, starting with conduct of a more minor nature that will give rise to the summary offence of driving without due care with its relatively low penalties and which in many cases will not involve a prison sentence.  As the inattention and the circumstances in which it occurs become more serious, “so as to impose on other users of the road a risk which any reasonable person in the situation of the accused would recognise as a real danger to the public”,[37] the basis for the more serious offence of dangerous driving becomes established.  The appellant, by his pleas, admitted to conduct of this character when he pleaded guilty to causing death by dangerous driving.  As such, the use, in Payne, of the term “momentary inattention or carelessness”, in this context, must be understood as referring to the low end of this requirement of a serious departure from the fair or necessary risks to which all drivers on the road expect to be exposed, essential to the establishment of the more serious offence.

    [37]   This is a standard formulation of part of the direction given to jurors in this State with respect to the dangerous driving offences.

27. It will be apparent that we have focussed, to this point, on an appropriate starting sentence, that is, before allowing any reduction for a plea of guilty.  In this case, were a starting sentence of two and a half years for a single offence to be adopted, the appellant would end up with a head sentence considerably lower.  However, this is because of the, now legislated, and soundly based policy response that early pleas should be encouraged.  Had the appellant been convicted at trial, a sentence of two and a half years imprisonment still would be the outer limit in the circumstances of this case but with no discount.  The fact that an accused is entitled to a substantial discount (in this case, up to 40 per cent) for a plea at the earliest opportunity cannot be allowed to affect the starting point for the head sentence.

    The starting point when sentencing for the multiple offending in this case

1. The sentencing Judge exercised the discretion available under section 18A of the Criminal Law (Sentencing) Act to impose just the one penalty for all five offences committed.  Subsection (1) provides as follows.

   18A—Sentencing for multiple offences

   (1)If a person is found guilty by a court of a number of offences, the court may sentence the person to the one penalty for all or some of those offences, but the sentence cannot exceed the total of the maximum penalties that could be imposed in respect of each of the offences to which the sentence relates.

2. His Honour started at seven years before a reduction for the pleas of guilty.  Whilst his Honour outlined in general terms the various considerations, on the facts, which led him to conclude that this was the appropriate starting point, his Honour gave no other indication as to how he arrived at it. 

3. Ordinarily, where this approach to section 18A is adopted, it will be incumbent on the Judge to give some explanation as to how the one composite penalty has been arrived at. In particular, where, as here, the issue of concurrency or partial concurrency arises, some indication as to how that has been factored into the ultimate sentence should be provided.[38]  In this case, the only ground of appeal, with respect to the setting of the head sentence, is that it is manifestly excessive.  As such, it is a question for this Court to determine whether or not that is so, irrespective of the process that was, in fact, undertaken by the Judge to arrive at that head sentence. 

   [38]   See the discussion by Kourakis J, as his Honour then was, in R v Copeland (No 2) [2010] SASCFC 61; (2010) 108 SASR 398 at [96]-[98].

4. In cases such as the present, the conceptual difficulties involved when sentencing for five separate offences, each of which is comprised of the same single act of criminal conduct but which single act has, in effect, simultaneously caused death or harm to five people, are very testing. 

5. The approach, by way of an instinctive synthesis,[39] of endeavouring to assess the overall criminality involved in the five offences, as a whole, has a role to play.  However, before moving directly to a starting point for a single penalty for multiple offending of this nature, it is important, first of all, to arrive at a clear understanding of the appropriate starting point with respect to the commission of just one of the offences under consideration, as we have endeavoured to do to this point.  The question then becomes how to factor in the additional offences, each of which is of an identical nature and identical seriousness and had an identical outcome (apart from the fifth, causing serious harm, offence).

   [39]   See the discussion of this notion and of the relevant High Court authorities by Gray and Sulan JJ in R v Bagnato (2011) 112 SASR 39 at [43]-[52].

6. When sentencing for multiple offences of this nature, it is important to ensure that an accused is not punished for the same criminal conduct more than once and is not seen to be punished more than once.  It is true, as the cases repeatedly declare, that the consequences of conduct are a factor in assessing the gravity of a crime.  As King CJ observed in R v Hietanen,[40] (paraphrasing) consequences are especially serious in the driving dangerous offences because the consequences are of the essence of the offence and convert what would otherwise be relatively minor offending into a very serious indictable offence with a maximum penalty, in this case, of 15 years imprisonment.

   [40] (1989) 51 SASR 510 at 517.

7. It is convenient to start with the position that typically applied in this State before section 18A was enacted.[41]

   [41] Section 18A was inserted in the Criminal Law (Sentencing) Act by the Statutes Amendment (Sentencing) Act 1992 (SA) s5. Section 18A has been amended since then.

8. In Hietanen, King CJ approached sentencing for two counts of causing harm by dangerous driving by treating the sentence in the first count as “the leading sentence which must reflect the total criminality involved in the incident” and by, thereafter, ordering that the sentence with respect to the second count should be wholly concurrent. Indeed, in many of the cases decided before the introduction of section 18A, it was common practice to sentence for the total criminality with respect to the first count and for the sentence for each of the multiple counts thereafter to be ordered to be served concurrently. Such an approach achieves an appropriate outcome and can mirror the outcome arrived at when a single penalty is imposed pursuant to section 18A. However, and with respect, we have some difficulties with the approach, at least, conceptually.

9. Under this approach, an accused is sentenced for the conduct and its consequences that make up the first single offence.  However, when sentencing for that first count, regard is also had to events (the other deaths or injuries the subject of subsequent counts) which are not elements or parts of the first count.  Further, by sentencing again for the subsequent counts, even where ordered to be served concurrently, the accused is being sentenced again for the same criminal conduct and overall consequences.  The double or multiple punishment is neutralised by orders for total concurrency.  Nevertheless, we doubt that the approach in Hietanen would survive the reasoning in the later High Court decision of Pearce v The Queen.[42]

   [42] (1998) 194 CLR 610.

10. In our view, the proper approach to sentencing for multiple offending of this nature, ignoring for the moment the availability of section 18A, is as described by the New South Wales Court of Criminal Appeal in Regina v Janceski.[43]

    The first error to which the Crown points is that the two sentences [for two counts of cause death by dangerous driving] are wholly concurrent. There are at least two distinct categories of cases in which problems with concurrency arise. The first is when the offender is being sentenced for discrete offences committed on different occasions. The concurrency of sentences for that category is now governed largely by Pearce v The Queen (1998) 194 CLR 610, which overruled the practice previously common in this State of fixing one of several concurrent sentences to reflect the total criminality of the offender for all the offences. The second category is where the one incident or enterprise gives rise to different charges, usually where there is more than one victim. That category has at least two sub-categories. An example of one of those subcategories is where the offender repeatedly fires a gun, injuring a number of different persons, each as a result of a different action by the offender, although part of the one incident, when it is appropriate to take into account the fact that the offences were substantially contemporaneous and connected: Vogel & Son Pty Ltd v Anderson (1968) 120 CLR 157 at 168. The other sub-category is where the one action by the offender causes a number of people to be injured and where separate charges are laid in relation to each victim. That is the present case.

    In this second sub-category, it is easy for the sentencing judge to consider the sentencing process as being related to a single action which has created multiple victims, and therefore to fall into the error of imposing wholly concurrent sentences, each of them having been assessed on the basis that the existence of the multiple victims aggravated that sentence. Section 21A(2)(m) of the Crimes (Sentencing Procedure) Act 1999, which identifies the fact that an offence involved multiple victims as an aggravating factor, may (read in isolation) unfortunately lend credence to that approach. That is how the judge approached his task in the present case. Such an approach overlooks the fact that, in a case such as the present, there are two counts, each identifying one of the victims and each requiring a separate sentence. It is completely contrary to principle to aggravate each of those sentences on the basis that each offence resulted in multiple victims: Regina v Tadrosse [2005] NSWCCA 145 at [28] — [29].

    In a case falling within the second sub-category, separate sentences should usually be fixed which are made partly concurrent and partly cumulative, each such sentence being appropriate to the existence of only one victim and the aggregate of the sentences reflecting the fact that there are multiple victims resulting from the same action by the offender. The extent to which there should be an overlap in the partial accumulation will depend on what is required to represent the totality of the criminality involved in the one act of the offender. This, it seems to me, follows naturally from Pearce at [45] — [48] and cases such as Regina v Weldon (2002) 136 A Crim R 55 at [46] — [53] and Regina v Price [2004] NSWCCA 186 at [38], [49] when applying the general principles relating to the aggregation of sentences to this particular sub-category.

    [43] [2005] NSWCCA 288 at [21]-[23] (Hunt AJA, with whose reasons Spigelman CJ and Howie J agreed), subsequently approved of by a differently constituted Court of Criminal Appeal in R v AB [2011] NSWCCA 229 (Bathurst CJ, Hoeben and Johnson JJ).

11. In the present case, this approach would lead to the appellant, in the first instance, being sentenced for just one count of causing death by dangerous driving and with reference only to the circumstances and consequences referrable to that count, namely, the single loss of life.  Each count should be treated the same.  The question would then arise as to the extent to which the various sentences fixed should be made partly concurrent and partly cumulative.  It is at this stage that, as the New South Wales Court of Criminal Appeal pointed out, the total criminality involved in the one act of the appellant is to be assessed.

12. We recognise that under section 18A it was open to the sentencing Judge to move directly to a single starting point. His Honour did not err in doing so.[44]  It may well be that his Honour undertook such an exercise or similar but did not record it in his remarks.  Again, if so, this would not be an error.  However, the risk of erring as to the ultimate outcome when moving directly to a single starting point will be increased, in cases such as the present, unless there is first, a clear appreciation of the appropriate sentence for the offending on the assumption that only one person lost their life and second, a clear appreciation and application of the approach described by the New South Wales Court of Criminal Appeal in Janceski necessary to a safe arrival at the one penalty. 

    [44]   R v Symonds [1999] SASC 217 at [21]-[22], R v Copeland (No 2) [2010] SASCFC 61; (2010) 108 SASR 398 at [29], [96]-[97], R v Bagnato [2011] SASCFC 161; (2011) 112 SASR 39 at [39].

13. In the present case, as we have indicated, an appropriate sentence for count one, standing alone, would be no more than two and a half years imprisonment.  If so, this same starting point would apply to each of the other three counts of cause death by dangerous driving, treated in the same way.  A starting point of no more than 18 months would be appropriate for the fifth count of cause serious harm by dangerous driving. 

14. Section 31(1) of the Criminal Law (Sentencing) Act provides that a court may direct that a sentence imposed be cumulative upon any other sentence or sentences of imprisonment being, or to be, served by a defendant.  The principles underlying the exercise of a sentencing Judge’s discretion whether to order sentences to be served wholly concurrently, partially concurrently or wholly cumulatively have been recently examined, at some length, by this Court in a number of cases.[45]  However, the remarks of Wells J in The Attorney-General v Tichy are of particular assistance in this case.[46]

    It is both impracticable and undesirable to attempt to lay down comprehensive principles according to which a sentencing judge may determine, in every case, whether sentences should be ordered to be served concurrently or consecutively.  According to an inflexible Draconian logic, all sentences should be consecutive, because every offence, as a separate case of criminal liability, would justify the exaction of a separate penalty.  But such a logic could never hold.  When an accused is on trial it is part of the procedural privilege to which he is entitled that he should be made aware of precisely what charges he is to meet.  But the practice and principles of sentencing owe little to such procedure; what is fitting is that a convicted prisoner should be sentenced, not simply and indiscriminately for every act that can be singled out and brought within the compass of a technically identifiable conviction, but for what, viewing the circumstances broadly and reasonably, can be characterised as his criminal conduct.  Sometimes, a single act of criminal conduct will comprise two or more technically identified crimes.  Sometimes, two or more technically identified crimes will comprise two or more courses of criminal conduct that, reasonably characterized, are really separate invasions of the community’s right to peace and order, notwithstanding that they are historically interdependent; the courses of criminal conduct may coincide with the technical offences or they may not.  Sometimes, the process of characterization rests upon an analysis of fact and degree leading to two possible answers, each of which, in the hands of the trial judge, could be made to work justice.  The practice of imposing either concurrent or consecutive sentences cannot avoid creating anomalies, or apparent anomalies, from time to time.  What must be done is to use the various tools of analysis to mould a just sentence for the conduct of which the prisoner has been guilty.  Where there are truly two or more incursions into criminal conduct, consecutive sentences will generally be appropriate.  Where, whatever the number of technically identifiable offences committed, the prisoner was truly engaged upon one multi-faceted course of criminal conduct, the judge is likely to find concurrent sentences just and convenient.  There are dangers in each course.  Where consecutive sentences are imposed it may be thought that they are kept artificially apart where they should, to some extent, overlap.  Where concurrent sentences are imposed, there is the danger that the primary term does not adequately reflect the aggravated nature of each important feature of the criminal conduct under consideration.

    [45]   Including, for example, R v Copeland (No 2) [2010] SASCFC 61; (2010) 108 SASR 398 at [99]-[107] (Kourakis J, as his Honour then was), R v Bagnato [2011] SASCFC 161; (2011) 112 SASR 39 at [68]-[80] (Peek J).

    [46] (1982) 30 SASR 84 at 92-93 (emphasis added).

15. Total accumulation (11 and a half years) cannot be justified here.  Further, when turning to the question of partial concurrency and partial accumulation in this case and, in so doing, endeavouring to identify the totality of the criminality involved, it is important to ensure that the appellant is not punished for his single act more than once.  The additional feature arising from the multiple charges and which informs the overall criminality is the, undoubtedly, very important feature that four people were killed and one person seriously injured.  We again refer to King CJ in Hietanen[47] (as did the Judge). 

    Dangerous driving which causes serious injury to seven persons is vastly more serious for this purpose than dangerous driving which causes serious injury to two persons.

    [47] (1989) 51 SASR 510 at 517.

16. For this reason, the sentence that would have been imposed had there been just the one offence would need to be significantly increased.  However, this again has to be considered in the context that even though the legal culpability has been increased, the moral turpitude has not changed and all of the purposes of punishment, but for retribution or denunciation (as explained earlier), have been fully reflected in the sentence for the first count.  The extent of any concurrency ordered must also take into account that it will be a question of happenstance as to whether one person or two persons or in the case of, perhaps, a minibus 20 persons, are killed or injured. 

17. Ultimately, the extent of concurrency to be allowed can only be a matter of judgment after taking account of the relevant considerations.  On the facts of this case, each of the subsequent sentences should be served partially concurrently to an extent of no less than two thirds of each sentence.[48]  In other words, no more than one third of each of the subsequent sentences (ten months for the three additional cause death offences and six months for the cause serious harm offence) should be served cumulatively on the sentence for the first offence, in order to reflect the total criminality involved.  In the circumstances of this case, five years and six months would constitute the outer limit of the starting point for a head sentence aimed at representing the totality of the criminality involved. 

    [48]   In Janceski, but without suggesting that this is a single, determinative comparator, the New South Wales Court of Criminal Appeal allowed for greater concurrency, 75 per cent, when resentencing.

    Is the head sentence manifestly excessive?

18. The question of whether or not a sentence, and in this case, the head sentence, is manifestly excessive is to be determined by asking whether, upon the facts, the sentence imposed was unreasonable or plainly unjust.  In Markarian v The Queen,[49] a plurality in the High Court characterised the enquiry in this way.

    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[50], 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".

    [49] [2005] HCA 25; (2005) 228 CLR 357 at [25] (Gleeson CJ, Gummow, Hayne and Callinan JJ).

    [50] (1936) 55 CLR 499 at 504-505.

19. The head sentence ordered in this case was four years and two months after the discount for the pleas.  The discount allowed has not, and could not, be criticised.  However, the starting point of seven years is significantly too high.  For the reasons given, a starting point of no higher than five and a half years was called for in this case.  As a consequence the head sentence ordered, after the allowance for the pleas, is unreasonable and manifestly excessive.  We would allow the appeal on this basis (appeal ground two) and proceed to resentence.

    Resentence

20. We propose to exercise the discretion available under s18A of the Criminal Law (Sentencing) Act, but adopting the approach we have set out, to impose the one penalty for all five offences. We start with a head sentence of five and a half years reduced to three years and four months on account of the early pleas. This represents a shade under the 40 per cent discount required, given the circumstances of this case, in accordance with section 10C of the Criminal Law (Sentencing) Act.  We start with a non-parole period of one year and eight months.

21. As our reasons to this point would suggest, we disagree with the Judge’s decision not to suspend any term of imprisonment imposed.  In particular, for the reasons given, we disagree with the Judge’s observations that “the devastating loss of four lives and the serious injury to the other is a paramount consideration in sentencing” and that “principles of general deterrence are paramount for offences such as these”. 

1. The notion of “paramountcy” denotes something that is of chief concern or importance; something highest in rank or of the greatest importance or significance.  Parliament has expressly required that, for certain types of offending, paramount consideration is, indeed, to be given to the need for general and personal deterrence.[51]  However, the present offences have not been so characterised by parliament.

   [51]   Criminal Law (Sentencing) Act section 10(2)(c) [sexual exploitation of a child], (d) [arson or causing a bushfire], (e) [offences involving a firearm].

2. The consequences of the appellant’s offending do constitute a very important consideration, in the manner we have explained, but they are not a paramount consideration.  Similarly, very often, general deterrence will be a very important consideration but not paramount, and particularly not so in this case.

3. It is apparent, on a reading of the sentencing remarks as a whole, that the “paramountcy” of each of these two considerations was very influential in the Judge’s decision not to suspend. 

4. Given that we would allow the appeal in any event, it is unnecessary that we express a concluded view on whether his Honour’s refusal to exercise the discretion in favour of suspension constituted appellable error (grounds of appeal three and four).  In particular, it is not necessary for us to enter the thorny thickets of: whether his Honour’s reliance on paramountcy, in the two respects mentioned, meant that inappropriate weight was given to relevant factors and, if so, whether this could give rise to appellable error; whether his Honour’s elevation of these two considerations to the level of “paramountcy” went further and meant that he took into account irrelevant factors; and whether, in any event, the failure to suspend was unreasonable or plainly unjust.[52]

   [52]   See, generally, House v The King (1936) 55 CLR 499 at 504-5 and the recent discussions by members of this Court in, for example, R v Lutze (2014) 121 SASR 144; Police v Chilton (2014) 120 SASR 32; Robinson v Police [2014] SASC 155 and Noble v Police [2014] SASC 156.

5. Subsection 38(1) of the Criminal Law (Sentencing) Act provides.

   (1)Subject to this section, if a court has imposed a sentence of imprisonment on a defendant, the court may, if it thinks that good reason exists for doing so, suspend the sentence on condition that the defendant enter into a bond—

   (a)     to be of good behaviour; and

   (b)     to comply with the other conditions (if any) of the bond.

   In R v O’Toole,[53] Peek J (with whom Sulan J agreed) explained the correct approach to the exercise of this discretion as follows.

   This provision has been held to require the Court to ask only one question: whether, having regard to all the relevant sentencing considerations in the particular circumstances of the case, there exists good reason to suspend the sentences.[54]  The inquiry into “good reason” cannot be reduced to a set of comprehensive criteria, nor circumscribed by a precise formula to be applied in every case.[55]  It is also erroneous to attempt to define “good reason” by reference to other cases in which a sentence of imprisonment has been suspended or by inferring that a particular class of offences must attract an immediate term of imprisonment.[56]  The decision to suspend must be made solely on the facts and circumstances of the particular case at hand.

   [53] [2013] SASCFC 18 at [50].

   [54]   Wessling v Police (2004) 88 SASR 57 at 63 [27] (Besanko J).

   [55]   R v Kruger (1977) 17 SASR 214 at 221 (Bray CJ); R v Wacyk (1996) 66 SASR 530 at 535 (Perry J).

   [56]   R v Wacyk (1996) 66 SASR 530 at 535 (Perry J).

6. Given the nature of the offending, to be understood in the way we have explained, the proper roles of personal and general deterrence in this case, and the personal considerations in favour of the appellant including the fact that the appellant has already spent a little under three months in custody, we are satisfied that there is good reason to suspend.  We will do so provided that the appellant agrees to enter into a bond to be of good behaviour for two years.  We do not see the need for a condition requiring supervision.

7. Given that the sentence is to be suspended, allowance for time in custody will need to be made.  The appellant entered custody on the day of sentencing, 25 March 2015.  He was released on bail pending the outcome of this appeal on 15 June 2015.  The head sentence of three years and four months and the non-parole period of one year and eight months is reduced to three years, one month and one week and one year, five months and one week, respectively.

8. The Judge imposed the mandatory minimum licence disqualification of ten years for each offence, all to operate concurrently.  In our view, it would be appropriate, in the circumstances of this case, for the appellant not to drive again.  We order, on count one, that he be disqualified from holding or applying for a driver’s licence for a period of 15 years from today.  We order the same period of disqualification for each of the other four counts.  Each such disqualification is to be served, as to ten years, concurrently with, and as to five years, cumulatively upon the 15 years ordered for count one and cumulatively with respect to each other.  This makes for a total disqualification period of 35 years.  This in itself is a severe punishment but one that is warranted bearing in mind the appellant’s age, the nature of the driving concerned and its tragic consequences.

   
   

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