Simpson v The King

[2022] SASCA 102

Supreme Court of South Australia

(Court of Appeal: Criminal)

SIMPSON v THE KING

[2022] SASCA 102

Judgment of the Court of Appeal  

(The Honourable Justice Doyle, the Honourable Justice Bleby and the Honourable Justice David)

6 October 2022

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE

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

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ACTS INTENDED TO CAUSE OR CAUSING DANGER TO LIFE OR BODILY HARM OR SERIOUS INJURY - SENTENCE

CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - SENTENCE

Appeal against sentence.

The appellant pleaded guilty to one count of creating likelihood of serious harm, contrary to s 29(2) of the Criminal Law Consolidation Act 1935 (SA) (‘CLCA’); one count of creating likelihood of harm, contrary to s 29(3) of the CLCA; one count of driving without due care, contrary to s 45(1) of the Road Traffic Act 1961 (SA) (‘RTA’); and one count of driving with excess blood alcohol, contrary to s 47B(1)(a) of the RTA.

At around 9:50 am on 6 June 2021, the appellant was intoxicated and driving in a large four-wheel drive vehicle with a bull bar on Commercial Road in Seaford. The appellant drove erratically, weaving in and out of traffic, pulling out from behind the first complainant, CL, going on the wrong side of the road and then pulling in front of her. After stopping at the traffic lights, the appellant drove off, whilst CL’s car remained stationary. The appellant executed a U-turn and drove on the wrong side of the road, straight towards CL’s vehicle at a speed of between 60 and 70 kph without braking. CL’s vehicle suffered major front-end damage. As a result of her vehicle’s airbags deploying, CL suffered a burn to her right leg and scratches on her right hand. The appellant then drove straight towards the second complainant, JB, who had filmed the earlier incident. JB moved out of the way and the appellant drove past him and his brother, onto the verge, before chasing them on foot whilst yelling obscenities.

On 22 March 2022, a judge of the District Court sentenced the appellant to a head sentence of five years, eight months and 13 days. He imposed a non-parole period of three years and six months. Pursuant to s 29(4) of the CLCA, the judge imposed a disqualification from holding or obtaining a driver’s licence for a total of 11 years, to commence upon the appellant’s release from prison.

The appellant appealed on the grounds that the sentence was manifestly excessive.

Held (by the Court), allowing the appeal and resentencing the appellant:

1.The total period of imprisonment was, in all the circumstances, manifestly excessive. While the two offences represented separate incursions, they were closely connected in time and as the criminal manifestations of a course of conduct of the appellant. Each sentence could contribute to achieving the sentencing objectives of the other by allowing for some overlap in periods.

2.The same considerations also point to the conclusion that the failure to allow for any concurrence in disqualification periods rendered the total period of disqualification manifestly excessive.

3.With respect to the s 29 offences, the appellant is resentenced to a head sentence of four years and a non-parole period of two years and six months, to commence on 6 June 2021, the day the appellant was taken into custody.

4.The Court imposes a total period of licence disqualification of nine years, to commence upon the appellant’s release from prison.

Criminal Law Consolidation Act 1935 (SA) ss 29(2), 29(3), 29(4); Road Traffic Act 1961 (SA) ss 45(1), 47B(1)(a), referred to.
Dinsdale v The Queen (2000) 202 CLR 321; Hassan v The Queen [2022] SASCA 56; Hili v The Queen (2010) 242 CLR 520; House v The King (1936) 55 CLR 499; Ndreka v The Queen [2021] SASCA 11; R v Morse (1979) 23 SASR 98, considered.

SIMPSON v THE KING
[2022] SASCA 102

Court of Appeal – Criminal:    Doyle, Bleby and David JJA

1. THE COURT:         This is an appeal against sentence. The sole ground of appeal is that the sentence was manifestly excessive.

   Background

2. On 22 March 2022, the appellant was sentenced for the following offences:

   ·One count of creating likelihood of serious harm, contrary to s 29(2) of the Criminal Law Consolidation Act 1935 (SA) (‘CLCA’). The maximum penalty for this offence is 10 years’ imprisonment;

   ·One count of creating likelihood of harm, contrary to s 29(3) of the CLCA. The maximum penalty for this offence is five years’ imprisonment;

   ·One count of driving without due care, contrary to s 45(1) of the Road Traffic Act 1961 (SA) (‘RTA’). The maximum penalty for this offence is a fine of up to $2,500; and

   ·One count of driving with excess blood alcohol, contrary to s 47B(1)(a) of the RTA. The maximum penalty for this offence is a fine of not less than $1,100 but not more than $1,600, and a minimum licence disqualification of 12 months.

   The circumstances of the offending

3. At around 9:50 am on 6 June 2021, the appellant was intoxicated and driving on Commercial Road in Seaford. He was in a large four-wheel drive vehicle that had a bull bar attached. He had been drinking heavily from about 3:00 am.

4. The first complainant, CL, was driving in front of the appellant in her Mitsubishi SUV. She touched her brakes to stay within the speed limit. She observed the appellant driving very closely behind her in an aggressive manner. The appellant was beeping his horn, making obscene gestures and appearing to threaten CL by swiping his thumb across his neck.

5. The appellant drove erratically, weaving in and out of traffic, pulling out from behind CL, going on the wrong side of the road and then pulling in front of her. That erratic driving was the subject of the count of driving without due care.

6. The appellant and CL both stopped at traffic lights, with the appellant’s vehicle directly in front of CL’s vehicle. The appellant then deliberately reversed into CL’s vehicle. That act was uncharged.

7. The appellant then drove off. CL’s vehicle stayed at the lights. Another driver, MC, whose vehicle was directly behind CL’s vehicle and who had witnessed what had happened, found CL shaking and crying in the driver’s seat of her vehicle. MC was still standing at CL’s driver-side door when the appellant executed a U-turn and drove on the wrong side of the road, straight towards CL’s vehicle.

8. CL screamed at MC to get out of the way and braced for the impact, with both hands on the steering wheel. MC moved away when she realised that the appellant’s vehicle was speeding up and was not going to stop. The appellant’s vehicle collided head-on with CL’s vehicle. The appellant’s estimated speed at the time of impact was between 60 and 70 kph.

9. The appellant did not apply the brakes before the collision. CL’s vehicle suffered major front-end damage. Both front airbags deployed. The vehicle was forced backwards by approximately 2.5 metres, causing it to collide with MC’s vehicle, knocking the bumper off that vehicle and denting the bonnet. As a result of her vehicle’s airbags deploying, CL suffered a burn to her right leg and scratches on her right hand. These actions of the appellant were the subject of the count of creating likelihood of serious harm.

10. The second complainant, JB, had been driving in his van with his brother along Commercial Road. After observing the appellant yelling and screaming at CL from his vehicle at the traffic lights, JB pulled over past the intersection and observed the appellant’s behaviour. He used his phone to record footage of part of the incident described above, including the appellant’s conduct in driving head-on into CL’s vehicle.

11. After the appellant caused the collision with CL’s vehicle, he reversed and turned around to face in the direction of JB, who was standing by his van and recording the incident. The appellant drove straight towards JB. JB moved out of the way and the appellant drove past him and his brother, onto the verge. The appellant’s vehicle skidded to a halt. The appellant exited his vehicle and sprinted towards JB, yelling obscenities. JB continued to film the appellant as he backed away. These events are the subject of the count of creating likelihood of harm.

12. Police arrived at the scene shortly afterwards and arrested the appellant. The appellant made a number of admissions while being filmed by police. These included words to the effect:

    ·he had been drinking since 3:00 am but did not take drugs;

    ·CL had been driving like an idiot, so he spun his car around and was like ‘I’ll show you bitch’ and drove straight into her;

    ·the ‘bitch’ got in front of him and driving like an idiot, driving slow, started braking, so he showed her what’s what by chucking a hand-braky and driving straight into the front of her fucking car;

    ·he and CL pulled up at the lights and he drove around her, flipped a U-turn and drove straight into her to teach her to say shit to him; and

    ·CL had pushed him to his limit.

13. Police alco-tested the appellant at 10:30 am. That test returned a blood alcohol concentration of 0.151 per cent. This was the basis for the count of driving with excess blood alcohol.

    The appellant’s personal circumstances

14. The sentencing judge summarised the appellant’s personal circumstances and his antecedent history. The appellant made no complaint about those summaries.

15. At the time of sentence, the appellant was 40 years old. He was born in McLaren Vale. His parents separated when he was five or six years old. He lived solely with his mother from the age of 14 and has not seen his father for 20 years. Due to undiagnosed learning difficulties, he found school difficult. He left home at 15 and school in year 10. He was in a major car accident in 1997 that left him with permanent leg damage.

16. The appellant completed TAFE courses in viticulture, butchery and retail. He has worked picking grapes and worked for about five years making air conditioners. He has been homeless for periods. In his early 20s he was diagnosed with severe depression, stress and anxiety and has had suicidal thoughts.

17. The appellant moved to Perth when he was 26 and was homeless for about nine months. He was diagnosed with bipolar disorder but did not take the prescribed medication. At that time, he became a heavy user of cannabis, methylamphetamine and ecstasy. He returned to Adelaide in December 2020. He worked in roles that required drug testing and abstained from drugs. He replaced his drug use with alcohol and later quit his job in the mines.

18. In late February and early March 2021, the appellant had a mental breakdown. He spent 10 days in hospital on account of the latest of several fallings out with his mother, relationship difficulties with his brother, poor sleep, overworking and heavy alcohol consumption. When he was discharged, he continued to drink even more heavily. This was his state on the day of the offending.

19. The appellant’s antecedent history extends across South Australia and Western Australia. It is characterised by driving offences, including driving with excess blood alcohol in 2008 and driving under the influence in 2016. The judge observed that those offences were outside of the prescribed period under the Sentencing Act 2017 (SA), and that he was required to sentence for the single count of driving with excess blood alcohol as a first offence. The appellant had not previously spent any time in prison.

    The judge’s approach to sentencing

20. In sentencing, the judge observed that the appellant had weaponised a large four-wheel drive vehicle to offend against CL and JB in a deliberate, violent and potentially deadly manner. It occurred on a busy road, against members of the community going about their daily lives. The judge observed it was extremely fortunate that no one was killed or seriously injured. The judge further considered that general and personal deterrence had a very significant role to play in sentencing. He observed that this was the third time the appellant had been before a court with respect to a drink driving offence and that this offending represented a significant and dangerous escalation. He observed that the offending was shocking and frightening, and that it was necessary to deter others from ‘such antisocial, violent and dangerous behaviour’.

21. The judge noted the effect on the victims. JB suffered shock and still fears what could have happened. He has heightened emotions and disturbed sleep. His capacity to work at his full potential has been impacted.

22. The appellant’s offending caused CL significant ongoing trauma, anxiety, fear and stress. She lost her car and independence in travelling. She was unable to start her new job when required, which caused further stress. She has a permanent scar from the burn, her hand injury required surgery and she suffers from heart palpitations and anxiety attacks. She has been left with ongoing psychological trauma with respect to driving.

23. The judge accepted that the appellant was capable of working productively when sober and in good mental health. He accepted that in his current sober state, the appellant was remorseful and accepted responsibility for his offending. He accepted the appellant’s letter of apology as genuine, and that the appellant was embarrassed and disgusted at his actions. He noted that the appellant cast no blame on the victims. He also noted the letters in support from the appellant’s mother and brother.

24. The judge noted the report from the psychologist, Ms Heinrich, who considered that the appellant suffers from borderline personality disorder and is at increased risk of substance abuse. Specifically, the appellant is at risk of relapse to alcohol abuse on his return to the community. The judge noted that the appellant had, to his credit, taken steps towards rehabilitation by attending Alcoholics and Narcotics Anonymous meetings and engaging in the Stay and Quit program.

25. Taking all those matters in account, the judge considered that a heavy sentence was nonetheless required to protect the community and to deter both the appellant and others from this type of offending.

26. With respect to the two offences contrary to s 29 of the CLCA, the judge considered that each count represented a separate incursion into criminality. Specifically, JB was not involved in the events the subject of the count concerning CL. JB had simply been a bystander. The appellant only turned his attention to JB, after his offending against CL was complete, because JB was filming that incident.

    The sentence

27. The judge sentenced the appellant as follows. With respect to the offence of creating likelihood of serious harm, he commenced with a starting point of five years’ imprisonment. He applied a 25 per cent reduction for the guilty plea, which made a sentence of three years and nine months. With respect to the offences of creating likelihood of harm, the judge selected a starting point of three years. He applied a 35 per cent reduction on account of the appellant’s guilty plea, making a head sentence of one year, 11 months and 13 days.

28. The judge made these two sentences wholly cumulative, resulting in a head sentence of five years, eight months and 13 days. He imposed a non-parole period of three years and six months. Both the head sentence and non-parole period commenced on 6 June 2021, the day the appellant was taken into custody.

29. With respect to the offences of driving without due care, the judge imposed a conviction without further penalty. For the offence of drive with excess blood and alcohol, the judge convicted the appellant and imposed a fine of $1,600.

30. Pursuant to s 29(4) of the CLCA, the judge imposed a disqualification from holding or obtaining a driver’s licence for five years with respect to each of the offences committed in contravention of s 29, that being the minimum required period of disqualification for each of those offences. He imposed a further licence disqualification of 12 months with respect to the offence of drive with excess blood alcohol. He ordered the disqualification periods to be served cumulatively, resulting in a period of licence disqualification of 11 years, to commence upon the appellant’s release from prison.

    The appeal

31. The principles applicable on a complaint of manifest excess are not in contention. It is necessary that the appellant show that the sentencing was affected by error in the matter described in House v The King.[1] In Hassan v The Queen, Doyle JA summarised the relevant principles in the context of sentencing appeals:[2]

    The principles governing the Court’s consideration of a submission of manifest excess are well-known.[3]  They were summarised by the High Court in Dinsdale v The Queen[4] and Hili v The Queen.[5]  They require satisfaction by the appellate court that the impugned sentence is unreasonably high, or plainly unjust, in the sense required by House v The King.[6]  It is not enough that the sentence is higher than what the appellate court, or some other sentencing judge, might have imposed.  The appellate court will only interfere if the sentence is outside the range of sentences that might reasonably have been imposed.  Whether this is so requires consideration of the range of matters relevant to the sentencing task, including the maximum penalty for the relevant offending, where the circumstances of the offending sit in the scale of seriousness of crimes of that type, and the personal circumstances of the offender.[7]  But ultimately there is a limit to the amount of analysis that may be brought to bear.  Often the existence or otherwise of manifest excess will be a conclusion that does not admit of lengthy exposition.[8]

    (Footnotes in original)

    [1] (1936) 55 CLR 499 at 505.

    [2]     Hassan v The Queen [2022] SASCA 56 at [61].

    [3]     The following summary is taken from this Court’s decision in Ndreka v The Queen [2021] SASCA 11 at [28] (Doyle JA, Kelly P and Bleby JA agreeing).

    [4]     Dinsdale v The Queen (2000) 202 CLR 321 at [6] (Gleeson CJ and Hayne J).

    [5]     Hili v The Queen (2010) 242 CLR 520 at [59]-[60] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).

    [6]     House v The King (1936) 55 CLR 499 at 504-505 (Dixon, Evatt and McTiernan JJ).

    [7]     R v Morse (1979) 23 SASR 98 at 99 (King CJ, White and Mohr JJ agreeing).

    [8]     Dinsdale v The Queen (2000) 202 CLR 321 at [6] (Gleeson CJ and Hayne J); Hili v The Queen (2010) 242 CLR 520 at [59]-[60] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).

32. The appellant did not make any complaint of process error, but did highlight a number of matters which, he submitted, when considered together warranted the conclusion that the sentence was manifestly excessive. He pointed first to the length of the head sentences for the two offences contrary to s 29, which he characterised as very high in each case. In this regard, he provided the Court with tables of offences imposed for offences of creating likelihood of serious harm and creating likelihood of harm over the past 12 years, both where the act was driving at another person. He also provided a table of sentences for offences of cause serious harm and cause harm for dangerous driving over the last seven years.

33. The first two tables, which related to the offences under consideration, provided some limited assistance in painting a broad picture of sentencing practice over the period covered. Each sentence described in those tables included a brief description of the offending. The appellant’s focus, in submissions, on a number of those individual instances of sentencing accorded them more relevance than they warranted. Tables such as these can provide a general sense of historical sentencing practice that can alert the reader to where a particular sentence might stand out as anomalous. They are unlikely to establish a persuasive case of manifest excess in any but the most extreme case.

1. The table of sentences for cause serious harm and cause harm for dangerous driving was of less, if any, assistance. Those offences do not have the same mental element that forms part of the two offences contrary to s 29 for which the appellant was sentenced.

2. Next, while the appellant acknowledged the judge’s finding that each was a separate incursion into criminality, he maintained that the two offences were of the same type, were committed within minutes of each other, in the same place, and were factually connected. The failure to allow any period of concurrency contributed, in his submission, to the conclusion of manifest excess. Finally, he submitted, the absence of any reduction on account of the principle of totality contributed, in its turn, to the manifest excessiveness of the final sentence.

3. None of these matters was raised as a complaint of process error. Rather, the effect of the submission was that when regard was had to all these matters, the resulting sentence was disproportionate to the offending in all the circumstances, including the personal circumstances of the appellant, as set out above.

4. Similarly, with respect to the total period of disqualification, the appellant submitted that in all the circumstances, and having regard to the all the matters discussed above, the total accumulated period of 11 years’ disqualification was manifestly excessive. The appellant submitted that this would impose a profound impediment upon his rehabilitation, given the effect it would have on his ability to move around in the community, and to obtain and travel to work. Acknowledging that the period imposed in respect of each offence was the minimum, he submitted that the failure to allow some degree of concurrency between the periods contributed to the total period of disqualification being manifestly excessive.

5. The respondent emphasised the egregiousness of the course of conduct, which commenced with the appellant not only harassing CL, but intimidating her to the point where she was already traumatised by the time that he rammed her vehicle. The appellant had ample opportunity to disengage. His course of conduct put that offending at the high end of seriousness. Following that, the appellant took aim at JB, an unprotected pedestrian, on account of JB filming his earlier actions. These were extreme offences against public safety. The appellant weaponised a large vehicle with a bull bar, with the potential to be lethal, in circumstances where having a licence to drive is a privilege.

6. The respondent accepted that it was open to the sentencing judge to allow some period of concurrency with respect to both the terms of imprisonment and the periods of licence disqualification. However, counsel submitted that it was not necessary to do so. She emphasised that the appellant’s conduct in respect of JB added quite another dimension of criminality to the overall conduct. That warranted additional penalty.

7. Counsel for the respondent also submitted that the licence disqualification periods represented a particularly effective tool for protection of the public in cases such as the present. Further, given the individual terms imposed were the minimum periods, it could not be said, in the circumstances of this offending, that their accumulation warranted a conclusion of manifest excess. The relevant consideration that the appellant had reasonable prospects of rehabilitation was, in the respondent’s submission, easily outweighed by the need in this case for personal and general deterrence, and protection of the public.

8. With respect to the terms of imprisonment, the starting point adopted by the judge for each offence was high. The appellant has a poor driving history and has previously been convicted of an offence of common assault. This offending represented a considerable escalation. It was serious offending indeed. While the starting points were high, it would be difficult to characterise them as manifestly excessive.

9. Taking those starting points together with the failure to allow for any period of concurrency does, however, point to the conclusion that the total period of imprisonment was, in all the circumstances, manifestly excessive. While the two offences contrary to s 29 did represent separate incursions, with the second offence adding an extra dimension to the criminality and affecting a second victim, they were closely connected in time and the criminal manifestations of one course of conduct of the appellant. Each sentence could contribute to achieving the sentencing objectives of the other by allowing for some overlap in periods. This was in circumstances where, egregious as the offending was, the appellant presented reasonable prospects for rehabilitation.

10. The same considerations also point to the conclusion that the failure to allow for any concurrence in disqualification periods rendered the total period of disqualification, being 11 years, manifestly excessive.

11. The sentence was manifestly excessive. We propose to allow the appeal, set aside the sentence and resentence the appellant.

    Resentencing

12. Taking into account all of the matters identified above, we resentence the appellant as follows.

13. With respect to the offence of creating likelihood of serious harm, we commence with a starting point of four years’ imprisonment. We apply a 25 per cent reduction for the guilty plea, which makes a head sentence of three years. With respect to the offence of creating likelihood of harm, we identify a starting point of two years and six months. We apply a 35 per cent reduction on account of the appellant’s guilty plea, making a head sentence of one year, seven months and 15 days.

14. For the reasons discussed above, some degree of concurrency is warranted. We make the sentence for creating likelihood of harm partially concurrent with that for creating likelihood of serious harm, to the extent of seven months and 15 days, resulting in a total head sentence of four years. We set a non-parole period of two years and six months. Both the head sentence and non-parole period are to commence on 6 June 2021, the day the appellant was taken into custody.

15. With respect to the offence of driving without due care, we would not impose any different sentence. We therefore impose a conviction without further penalty. Similarly, for the offence of drive with excess blood alcohol, we convict the appellant and impose a fine of $1,600.

16. Pursuant to s 29(4) of the CLCA, we impose a disqualification from holding or obtaining a driver’s licence for five years with respect to each of the offences committed in contravention of s 29. We impose a further licence disqualification of 12 months with respect to the offence of drive with excess blood alcohol. We order that the second five-year period of disqualification be imposed partially concurrently with the first, to the extent of two years, such that those two periods make a total of eight years’ disqualification. We would order the disqualification of 12 months with respect to the offence of drive with excess blood alcohol to be served cumulatively upon that period. This results in a total period of licence disqualification of nine years, to commence upon the appellant’s release from prison.