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Trewren v The King

Trewren v The King

Case [2023] SASCA 100 27 September 2023

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SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
TREWREN v THE KING
[2023] SASCA 100
Judgment of the Court of Appeal
(The Honourable President Livesey, the Honourable Justice David and the Honourable Justice Nicholson)
27 September 2023
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS
CRIMINAL LAW - SENTENCE - PURPOSE OF SENTENCE
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - SENTENCE - CULPABLE OR DANGEROUS DRIVING CAUSING DEATH - SOUTH AUSTRALIA
This is an appeal against sentence.

The appellant pleaded guilty to one count of aggravated causing death by dangerous driving, contrary to s 19A(1) of the Criminal Law Consolidation Act 1935 (SA). On 20 December 2021, the appellant, while driving along Mount Barker Road with her son in the vehicle, struck and killed a pedestrian. At the time of the collision, the appellant had a blood alcohol concentration of approximately 0.128 grams of alcohol per 100 millilitres of blood.
The sentencing Judge commenced with a starting point of eight years imprisonment, reduced by 25 per cent on account of the appellant’s guilty plea, to six years imprisonment. A non-parole period of four years, nine months and 18 days was fixed, that being the mandatory minimum non-parole period of four-fifths of the head sentence. The sentence was ordered to commence from 21 December 2021, when the appellant was first taken into custody. The sentencing Judge also ordered that the appellant be disqualified from holding or obtaining a driver's licence for 15 years, to commence upon the appellant’s release from prison.
The sole ground of appeal is that the sentence was manifestly excessive.
Held, per the Court, granting permission to appeal and allowing the appeal:
1.The sentence imposed was manifestly excessive.
2.The sentence imposed in the District Court is set aside and the appellant is re-sentenced to six years and six months imprisonment reduced by 25 per cent on account of her guilty plea to four years, 10 months and 16 days imprisonment. A non-parole period of three years, 10 months and 24 days is fixed pursuant to s 47(5)(d) of the Sentencing Act 2017 (SA). Both the head sentence and non-parole period are to commence from 21 December 2021, being the date the appellant was taken into custody.
3.The appellant is disqualified from holding or obtaining a driver’s licence for a period of 15 years, to take effect upon her release from prison.

Statutes Amendment (Vehicle and Vessel Offences) Act 2005 (SA); Criminal Law Consolidation Act 1935 (SA) ss 19A, 19AB; Road Traffic Act 1961 (SA) s 169B; Sentencing Act 2017 (SA) ss 3, 4, 10(1)(d), 47(12)(e)(i), referred to.
Bubner v The Queen (2022) 99 MVR 94 ; R v Akol (2020) 284 A Crim R 246; R v Wooldridge (2015) 123 SASR 422, distinguished.
Hackett v The Queen [2021] SASCA 32; R v Branscheid [2023] SASCA 103; R v De Simoni (1981) 147…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Trewren v The King

Details

AGLC: Trewren v The King [2023] SASCA 100
Case: [2023] SASCA 100
Decision Date: 27 September 2023

CaseChat Overview and Summary

The appeal in *Trewren v The King* was heard by the Full Court of the Supreme Court of South Australia. The appellant sought to appeal against a sentence imposed by the District Court for the offence of culpable driving causing death.

The central legal issue before the Full Court was whether the original sentence imposed by the District Court was manifestly excessive or inadequate, requiring interference on appeal. This involved considering the purposes of sentencing, including deterrence, denunciation, rehabilitation, and the recognition of mitigating factors.

The Court reasoned that the sentence must appropriately balance the need for strong deterrence and denunciation of the appellant's conduct with the recognition of her favourable personal circumstances. These circumstances included her remorse, public apology to the victims, good prospects of rehabilitation, and the adverse impact of incarceration on her son. The Court concluded that the original sentence did not strike this balance appropriately.

Consequently, the Full Court granted permission to appeal and allowed the appeal. The original sentence was set aside and the appellant was re-sentenced to six years and six months imprisonment, with a non-parole period fixed. The sentence was reduced by 25 per cent to account for her guilty plea, resulting in a final sentence of four years, 10 months, and 16 days imprisonment. A 15-year disqualification from holding or obtaining a driver's licence was also imposed, to commence upon her release from prison.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

In our view, this sentence will appropriately reflect and balance the need for a sentence which is both strongly deterrent and denunciative of the appellant’s wrongdoing, and which recognises her favourable personal circumstances, including her remorse, public apology to the victims, and her prospects of rehabilitation, as well as the adverse effect of incarceration upon her son. Conclusion We grant permission to appeal and allow the appeal. The appellant will be re-sentenced as indicated.Orders1.Permission to appeal is granted and the appeal is allowed. 2.The sentence imposed in the District Court is set aside and the appellant is re-sentenced to six years and six months imprisonment, reduced by 25 per cent on account of her guilty plea to four years, 10 months and 16 days. A non-parole period of three years, 10 months and 24 days is fixed. Both the head sentence and non-parole period are to commence from 21 December 2021. 3.The appellant is disqualified from holding or obtaining a driver’s licence for a period of 15 years, to take effect upon her release from prison.

Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

Trewren v The King [2023] SASCA 100

Most Recent Citation

Martain v The King [2023] SASCA 104

Cases citing this decision · 3 of 3 shown

Brooks v The King
[2025] SASCA 84 Para 10

…There is no discretion to order that the period of disqualification operate so that it expires before release from prison.[3] [3] Trewren v The King [2023] SASCA 100, [65] (Livesey P, David JA and Nicholson AJA).…
Hueppauff v The King
[2024] SASCA 11 Para 3

…ng aggravated forms of the offence.[5] [5] See, for example, Bubner v The Queen (2022) 99 MVR 94; R v Henderson (2023) 104 MVR 68; Trewren v The King [2023] SASCA 100; Branscheid v The King (2023) 105 MVR 387; Martain v The King (2023) 105 MVR 404.…
Martain v The King
[2023] SASCA 104 Para 22

…0]-[101] per Livesey J (with whom Nicholson and Bleby JJ agreed); Bubner v The Queen (2022) 99 MVR 94; R v Henderson (2023) 104 MVR 68; R v Trewren [2023] SASCA 100.…

View all 3 citing cases →

Cases cited in this decision · 23 of 23 shown

Branscheid v The King
[2023] SASCA 103 Para 6

…hom Nicholson and Bleby JJ agreed); Bubner v The Queen (2022) 99 MVR 94 at [36]-[38] per Livesey P, Doyle and David JJA. [10] (2023) 104 MVR 68. [11] [2023] SASCA 103. [12] (2020) 284 A Crim R 246 at [58]-[114] per Livesey J (with whom Nicholson and Bleby JJ agreed).…
Sims v The King
[2023] SASCA 21 Para 21

…, [22] and it is inappropriate for an appeal court to engage in mere ‘tinkering’ with a sentence, or the elements of it.[23] [22] Sims v The King [2023] SASCA 21 at [35] per Livesey P and Bleby JA. [23] See Dinsdale v The Queen (2000) 202 CLR 321 at [62] where Kirby J referred to the “strong resistance that exists…
Bubner v The Queen
[2022] SASCA 27 Para 6

…99 per King CJ (with whom White and Mohr JJ agreed). [8] R v Singh (2011) 111 SASR 219 at [32]-[34] per Sulan J (with whom David and Peek JJ agreed); Bubner v The Queen (2022) 99 MVR 94 at [36]-[37] per Livesey P, Doyle and David JJA. [9] See, for example, R v Akol (2020) 284 A Crim R 246 at [62] per Livesey J (with whom Ni…
R v Johnston
[2021] NSWDC 321 Para 10

…because of the importance placed by the law on the sanctity of human life but also because of the need for general deterrence.[18] [18] R v Johnston (1985) 38 SASR 582 at 585-586 per King CJ; R v Payne (2004) 89 SASR 49 at [50], [70] per Doyle CJ, Nyland, Sulan, Anderson and Mullighan JJ; R v Watkins (2013) 118 SASR…
Hackett v The Queen
[2021] SASCA 32 Para 4

…4-505 per Dixon, Evatt and McTiernan JJ. See also Pateras v The Queen (2021) 139 SASR 549 at [15]-[17] per Lovell, Livesey and Bleby JJA. [5] [2021] SASCA 32 at [8] per Kelly P, Lovell and Livesey JJA.…
R v Campbell; R v Smith
[2019] NSWCCA 1 Para 21

…equests for “tinkering” or “restructuring” sentences “have been firmly discouraged by this Court”. In R v Campbell; R v Smith [2019] NSWCCA 1 at [164] per Hulme J (with whom Rothman J and Beazley P agreed) the Court warned: “if intervention by the appellate court could be described as “tinkering”, then it would be…
R v Edwards
[2016] SASCFC 145 Para 7

…n, Anderson and Mullighan JJ. [16] R v Watkins (2013) 118 SASR 342 at [25] per Stanley J (with whom Kourakis CJ and Vanstone J agreed); R v Edwards [2016] SASCFC 145 at [31]-[33] per Blue, Lovell and Hinton JJ; R v Akol (2020) 284 A Crim R 246 at [100]-[101] per Livesey J (with whom Nicholson and Bleby JJ agreed). S…
R v Wooldridge
[2015] SASCFC 125 Para 10

…J and Vanstone J agreed). See also R v Ceruto (2014) 66 MVR 94 at [36] per Stanley J (with whom Kourakis CJ and Vanstone J agreed); cf R v Wooldridge (2015) 123 SASR 422 at [13]-[16] per Gray ACJ, Peek and Nicholson JJ.…
Harding v The State of Western Australia
[2015] WASCA 27 Para 21

…. See also Western Australia v Munda (2012) 43 WAR 137 at [212] per Buss JA; and Harding v State of Western Australia [2015] WASCA 27 at [51] per Martin CJ (with whom Mazza JA agreed).…
Dang v The Queen
[2014] VSCA 49 Para 21

…02 CLR 321 at [62] where Kirby J referred to the “strong resistance that exists against appellate “tinkering” with sentences”. In Dan v R (2014) 43 VR 29 at [98] per Tate JA (with whom Weinberg JA agreed) requests for “tinkering” or “restructuring” sentences “have been firmly discouraged by this Court”. In R v Cam…
R v Ceruto
[2014] SASCFC 5 Para 10

…Nyland, Sulan, Anderson and Mullighan JJ; R v Watkins (2013) 118 SASR 342, [25] per Stanley J (with whom Kourakis CJ and Vanstone J agreed). See also R v Ceruto (2014) 66 MVR 94 at [36] per Stanley J (with whom Kourakis CJ and Vanstone J agreed); cf R v Wooldridge (2015) 123 SASR 422 at [13]-[16] per Gray ACJ, Peek…
R v Watkins
[2013] SASCFC 150 Para 7

…ed). [14] (2004) 89 SASR 49. [15] R v Payne (2004) 89 SASR 49 at [68]-[73] per Doyle CJ, Nyland, Sulan, Anderson and Mullighan JJ. [16] R v Watkins (2013) 118 SASR 342 at [25] per Stanley J (with whom Kourakis CJ and Vanstone J agreed); R v Edwards [2016] SASCFC 145 at [31]-[33] per Blue, Lovell and Hinton JJ; R v Ako…
The State of Western Australia v Munda
[2012] WASCA 164 Para 21

…ing concluded that a sentence imposed at first instance is manifestly inadequate”. See also Western Australia v Munda (2012) 43 WAR 137 at [212] per Buss JA; and Harding v State of Western Australia [2015] WASCA 27 at [51] per Martin CJ (with whom Mazza JA agreed).…
R v Singh
[2011] SASCFC 128 Para 6

…menting the survey undertaken in R v Akol .[12] [7] R v Morse (1979) 23 SASR 98 at 99 per King CJ (with whom White and Mohr JJ agreed). [8] R v Singh (2011) 111 SASR 219 at [32]-[34] per Sulan J (with whom David and Peek JJ agreed); Bubner v The Queen (2022) 99 MVR 94 at [36]-[37] per Livesey P, Doyle and David JJA. […
Hili v The Queen
[2010] HCA 45 Para 5

…imposed in other cases.[6] [6] Markarian v The Queen (2005) 228 CLR 357 at [26]-[28] per Gleeson CJ, Gummow, Hayne and Callinan JJ; Hili v The Queen (2010) 242 CLR 520 at [59] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ.…
The Queen v Morse
[2009] NZCA 51 Para 6

…019 to 2022, where the aggravating feature was the ingestion of drugs or alcohol, supplementing the survey undertaken in R v Akol .[12] [7] R v Morse (1979) 23 SASR 98 at 99 per King CJ (with whom White and Mohr JJ agreed). [8] R v Singh (2011) 111 SASR 219 at [32]-[34] per Sulan J (with whom David and Peek JJ agree…
R v Whyte
[2006] NSWCCA 75 Para 8

…mstances of the offending enable the conclusion that ‘the offender has abandoned responsibility for his or her own conduct’.[17] [17] R v Whyte (2002) 55 NSWLR 252 at [228] per Spigelman CJ (with whom Mason P, Barr, Bell and McClellan JJ agreed).…
Markarian v The Queen
[2005] HCA 25 Para 5

…the original sentencing Judge, or that the sentence imposed is markedly different from sentences imposed in other cases.[6] [6] Markarian v The Queen (2005) 228 CLR 357 at [26]-[28] per Gleeson CJ, Gummow, Hayne and Callinan JJ; Hili v The Queen (2010) 242 CLR 520 at [59] per French CJ, Gummow, Hayne, Crennan, Kiefel…
R v Payne
[2004] SASC 160 Para 7

…six years without suspension.[16] [13] R v Akol (2020) 284 A Crim R 246 at [53]-[61] per Livesey J (with whom Nicholson and Bleby JJ agreed). [14] (2004) 89 SASR 49. [15] R v Payne (2004) 89 SASR 49 at [68]-[73] per Doyle CJ, Nyland, Sulan, Anderson and Mullighan JJ. [16] R v Watkins (2013) 118 SASR 342 at [25] per…
Dinsdale v The Queen
[2000] HCA 54 Para 21

…ith a sentence, or the elements of it.[23] [22] Sims v The King [2023] SASCA 21 at [35] per Livesey P and Bleby JA. [23] See Dinsdale v The Queen (2000) 202 CLR 321 at [62] where Kirby J referred to the “strong resistance that exists against appellate “tinkering” with sentences”. In Dan v R (2014) 43 VR 29 at [98] pe…
R v De Simoni
[1981] HCA 31 Para 36

…the offence, but cannot take into account circumstances of aggravation which would have warranted a conviction for a more serious offence. [1] (1981) 147 CLR 383. [2] De Simoni (1981) 147 CLR 383 at 389 per Gibbs CJ; See also Feldman v Samuels [1956] SASR 55; R v Traiconi (1990) 49 A Crim R 417; R v Burrows (1995) 7…
House v R
[1936] HCA 40 Para 4

…with other sentences is not, without more, to conclude that it exceeded the bounds of the sentencing judge's discretion. [4] House v The King (1936) 55 CLR 499 at 504-505 per Dixon, Evatt and McTiernan JJ. See also Pateras v The Queen (2021) 139 SASR 549 at [15]-[17] per Lovell, Livesey and Bleby JJA. [5] [2021] SAS…
House v The King
63 WN 176 Para 4

…y” when compared with other sentences is not, without more, to conclude that it exceeded the bounds of the sentencing judge's discretion. [4] House v The King (1936) 55 CLR 499 at 504-505 per Dixon, Evatt and McTiernan JJ. See also Pateras v The Queen (2021) 139 SASR 549 at [15]-[17] per Lovell, Livesey and Bleby JJA. [5]…

Legislation cited in this decision · 4

Sentencing Act 2017 (SA)
10(1)(d), 3, 4, 47(12)(e)(i), 47(5)(d) 6 mentions (from Para 3)
Criminal Law Consolidation Act 1935 (SA)
19A, 19AB 3 mentions (from Para 1)
Road Traffic Act 1961 (SA)
169B 1 mention (from Para 27)
Statutes Amendment (Vehicle and Vessel Offences) Act 2005 (SA)
1 mention (from Para 7)