R v Zeunert - [2004] SASC 165

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v ZEUNERT
Judgment of The Court of Criminal Appeal
(The Honourable Justice Mullighan, The Honourable Justice Nyland and The Honourable Justice Anderson)
17 June 2004
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - CULPABLE OR DANGEROUS DRIVING CAUSING DEATH OR BODILY HARM
Leave to appeal against sentence - appellant pleaded guilty to causing death by dangerous driving – appellant diagnosed with schizophrenia and drug addiction – appellant’s fitness to plead determined – whether trial judge misunderstood effect of drugs on mental health – whether reduction given for guilty plea sufficient – whether guilty plea entered at first opportunity – whether trial judge erred in calculating sentence – grounds one, two and three of appeal dismissed – ground four allowed.

R v ZEUNERT
[2004] SASC 165
Court of Criminal Appeal: Mullighan, Nyland and Anderson JJ

MULLIGHAN J I would allow the appeal only for the limited purpose indicated by Anderson J for the reasons given by him.
NYLAND J I agree with the reasons of Anderson J. I would allow the appeal solely for the purpose indicated by him.
ANDERSON J This is an appeal against sentence. The appellant, Dallas Zeunert, pleaded guilty to the charge of causing death by dangerous driving.
The accident occurred on 18 May 2001 at Shea-Oak Log at about 7.00 am when the appellant was driving to work.
The appellant was driving his Toyota Hilux utility along the Sturt Highway near Shea-Oak Log when he travelled on to the incorrect side of the road and was involved in a head-on collision with a Ford Falcon utility being driven in the opposite direction by the late Mr McCourt.
At the time of the accident, the appellant was 27 years old. He had previous driving offences including driving with excess blood alcohol, driving without due care and driving unregistered and uninsured. He had previously lost his licence but this had been returned one month before the accident.
His manner of driving for some 20 minutes prior to the accident was extremely poor. Witnesses observed his driving and gave descriptions of it. Mr Leaney, who was driving in front of the appellant was forced to break heavily and swerve to the left in order to avoid a collision when the appellant undertook an extremely dangerous overtaking manoeuvre.
The appellant continued driving after that incident in which he had inconvenienced not only Mr Leaney but the oncoming traffic as well. At a later stage Mr Leaney came across the appellant at a petrol station. Mr Leaney was so concerned about the appellant’s driving that he confronted the appellant. A heated exchange followed in which Mr Leaney describes the appellant as being vague during the whole encounter.
Other witnesses spoke of the appellant’s car veering on to the incorrect side of the road in dangerous circumstances on at least two occasions over a distance of between two and three kilometres. In particular, Mr Warburton, the driver of a truck, saw the appellant’s vehicle straddle the middle line on the road for about 50 or 60 metres in an attempt to overtake before returning to the correct side of the road.
Mr Warburton was concerned about the appellant’s driving and had to slow down in order to give the appellant a wide berth. Later Mr Warburton observed the appellant’s car again straddling the centre line of the road for a distance of about 50 metres. At that time he estimates the appellant’s speed to be 100 kilometres per hour. About one kilometre later Mr Warburton again saw the appellant veer across the centre line and unfortunately at that time the collision occurred.
Another driver, Mr Ross, was also forced to slow his vehicle quite suddenly by reducing his speed by 15 kilometres per hour when the appellant had commenced an overtaking manoeuvre. He was one of the witnesses observing the appellant’s car over the distance of 2-3 kilometres leading up to the accident.
A Ms Fitzgerald was driving on the other side of the road towards the appellant. She saw his driving for a short time prior to the collision. She says that half of his car was on her side of the road. She says that after the accident the appellant continued driving on the incorrect side of the road until he came to a stop.
The appellant claims that he has no memory of the accident. There was no evidence that the appellant had been under the influence of either drugs or alcohol at the time of the accident. His trial had been delayed previously due to events involving the appellant’s mental health. He was detained at Glenside for some time and later diagnosed with schizophrenia.
He admits that he has had a serious drug problem and has been taking amphetamines and heroin for many years. The diagnosis in relation to his illness was found to be independent of his drug taking, although it was earlier thought that he had a drug induced psychosis.
As a result of his mental health the appellant’s fitness to plead was not finally determined until the middle of 2003. He then pleaded guilty approximately six months later.
It is also of note that after the accident the appellant drove again whilst disqualified and was involved in another accident on 31 August 2001. In relation to this matter he was subsequently charged with driving under the influence and convicted of drink driving.
The main point on the appeal is covered by Grounds 1 and 2 of the amended notice of appeal. These grounds are as follows:
“1.The Learned Sentencing Judge incorrectly inferred that ingestion of illicit drugs:
(a) played a role in the commission of this offence; and
(b)was the ‘trigger’ to the mental illness, that the appellant suffered from, at the time of this offence.
2.The Learned Sentencing Judge had insufficient regard to the revised psychiatric diagnosis of Dr Craig Raeside.”
It was suggested that in argument that in her sentencing remarks the learned trial Judge misstated the true situation when she said:
“Unfortunate though your history is it is sadly the experience of this Court that young people who choose to ingest drugs often engage in unacceptable and irresponsible behaviour which leads to breaches of the criminal law. It is also now well documented that taking drugs can trigger the very mental illness with which you have now been diagnosed and your situation again sadly is not uncommon in these courts.”
It is suggested from this passage that the learned Judge misunderstood the psychiatric evidence. However, I do not think that this is so. She quite clearly directs herself to the correct situation earlier in her reasons where she states:
“After your admission to Glenside at that time you were diagnosed as having a drug-induced psychosis. Subsequent monitoring of your condition in the last two years has led to a somewhat revised diagnosis of schizophrenia which appears to be independent of your drug taking.”
That was an accurate statement of the correct psychiatric diagnosis although it was argued that her Honour confused the situation in the statement set out earlier and that she sentenced the appellant on the basis of his drug ingestion having a role in his mental state and his offending. I do not accept this argument.
In my view, the Judge clearly knew of the correct psychiatric diagnosis and in the statement by her Honour set out earlier she was merely relating something which is in fact the experience of this Court. She was not making her comments in relation to the circumstances leading up to the accident but merely in relation to the appellant’s life generally.
In relation to her sentencing, which is Ground 3 of the appeal, the learned trial Judge allowed a reduction of eight and one half per cent for the guilty plea and it is submitted that this is not sufficient. However, the circumstances explained by the Judge in her sentencing remarks, are relevant, namely, that although there were previous issues about his fitness to plead, these were resolved in mid 2003 and the plea of guilty came some six months later. The plea was in fact just prior to the trial commencing. Her Honour reasoned that the plea was not therefore made at the earliest reasonable opportunity.
I can see good reason why her Honour would allow only such a small reduction in these circumstances for a guilty plea. To interfere would only be tinkering with the percentage reduction and that is not justified in my view.
In relation to Ground 4 of the appeal there is an error in the calculation her Honour has made. The two and a half months which the appellant had spent in custody should have been subtracted from the head sentence as well as from the non-parole period. This is not in dispute and a correction needs to be made.
There is no doubt that the head sentence of three years and eight months is near the top of the range of sentencing but having regard to the circumstances of this man’s driving on the occasion in question, as set out earlier and in particular having regard to the warning which he was given by Mr Leaney shortly prior to the accident, it is my view that it is not such a sentence with which this Court should interfere. This was a case of extremely poor driving as previously discussed.
I would allow the appeal solely for the purpose of correcting the error which her Honour made in her failure to take the two and a half months spent in custody from the head sentence.