Trewren v The King - [2023] SASCA 100

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 CLR 383; R v Henderson (2023) 104 MVR 68, discussed.
Dan v R (2014) 43 VR 29; Dinsdale v The Queen (2000) 202 CLR 321; Feldman v Samuels [1956] SASR 55; Harding v State of Western Australia [2015] WASCA 27; Hili v The Queen (2010) 242 CLR 520; House v The King (1936) 55 CLR 499; Markarian v The Queen (2005) 228 CLR 357; Pateras v The Queen (2021) 139 SASR 549; R v Burrows (1995) 79 A Crim R 154; R v Campbell; R v Smith [2019] NSWCCA 1; R v Ceruto (2014) 66 MVR 94; R v Edwards [2016] SASCFC 145; R v Johnston (1985) 38 SASR 582; R v Morse (1979) 23 SASR 98; R v Payne (2004) 89 SASR 49; R v Singh (2011) 111 SASR 219; R v Traiconi (1990) 49 A Crim R 417; R v Watkins (2013) 118 SASR 342; R v Whyte (2005) 55 NSWLR 252; Sims v The King [2023] SASCA 21; Western Australia v Munda (2012) 43 WAR 137, considered.

TREWREN v THE KING
[2023] SASCA 100
Court of Appeal – Criminal: Livesey P, David JA and Nicholson AJA

THE COURT: 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) (‘the CLCA’). The circumstances of aggravation were that there was present in the appellant’s blood a concentration of 0.08 grams or more of alcohol in 100 millimetres of blood; and at the time of the offence the appellant drove the vehicle whilst knowing she was disqualified from holding or obtaining a driver’s license.
The maximum penalty for this offence is life imprisonment and disqualification from holding or obtaining a driver’s licence for a minimum of 10 years.
On 3 August 2022, the sentencing Judge imposed a sentence of eight years imprisonment reduced by 25 per cent on account of the appellant’s guilty plea to six years imprisonment. The offence was a ‘serious offence against the person’ pursuant to s 47(12)(e)(i) of the Sentencing Act 2017 (SA) (‘the Sentencing Act’). Accordingly, a mandatory minimum non‑parole period of four‑fifths of the head sentence was fixed, that being four years, nine months, and 18 days. The sentence was ordered to commence on 21 December 2021, when the appellant was first taken into custody.
The sentencing Judge disqualified the appellant from holding or obtaining a driver’s licence for 15 years to take effect upon her release from prison.
The sole ground of appeal is that the sentence was manifestly excessive.
For the reasons which follow, we consider the sentence was manifestly excessive.
We grant permission to appeal and allow the appeal, and re-sentence the appellant as indicated.
The factual circumstances of the offending
In late 2021, the appellant was living with her 13-year-old son in Murray Bridge. On 20 December 2021, she was at home and had been drinking beer throughout the day, commencing soon after 11:00am. At around 6:00pm, the appellant’s former domestic partner, Mr Paul Lloyd, invited her and her son to his home in Hahndorf, and suggested they drive to the beach. He proposed that they stay overnight. The appellant and Mr Lloyd had been separated since 2019. The appellant said that their relationship was marred by mutual abuse of alcohol and domestic violence. Nonetheless, she decided to drive to Hahndorf with her 13‑year-old son to visit Mr Lloyd notwithstanding she was disqualified from driving.
The appellant drove from Murray Bridge to Hahndorf (a distance of approximately 50 kilometres). Along the way, she stopped at the Bridgeport Bottle Shop in Murray Bridge and purchased a carton of 330 millilitre bottles of full‑strength Carlton Dry beer. The appellant proceeded to drink the beer whilst driving the rest of the way to Mr Lloyd’s home. Upon their arrival in Hahndorf, the appellant was intoxicated and in no condition to drive. Mr Lloyd drove her and her son to Maslin beach.
At the beach, the appellant remained in her car drinking whilst Mr Lloyd and her son went for a walk along the beach. The appellant consumed two six packs of Carlton Dry beer during this time. Upon his return to the car, Mr Lloyd saw the appellant leaning out of the open door of the vehicle, vomiting onto the roadway.
Mr Lloyd drove the appellant and her son back to Hahndorf. During the drive the appellant’s mood changed; she became aggressive and spoke of wanting to return to Murray Bridge. Her son described the appellant as argumentative. Despite attempts by Mr Lloyd to convince the appellant to stay overnight in Hahndorf, she was adamant that she was going to drive back to Murray Bridge. Once they had reached Hahndorf, the appellant started verbally abusing Mr Lloyd and insisting that he ‘get out of the car’. Mr Lloyd threatened to call the police if the appellant drove off in her vehicle. The appellant responded by saying she did not care because he did not have a mobile telephone. She drove off with her son, and Mr Lloyd walked home.
The appellant drove along Echunga Road to Mount Barker Road before turning right and travelling in a south-easterly direction towards Murray Bridge. The appellant’s son was in the front passenger seat. He said that he did not feel safe because of the manner his mother was driving. He continually asked her to stop and not to drive, to which the appellant said words to the effect of, ‘[n]o, we’ll be all right, we’re just gonna go home’. She continued drinking a stubby of beer whilst driving.
The appellant’s son described her manner of driving as ‘scary’. He said that it involved her slowing down and speeding up at regular intervals.
As the vehicle travelled along Mount Barker Road it veered to its left, onto the northern side of the shoulder of the road, colliding with a guard rail before striking a pedestrian, Mr David Hoy, who was walking on the bitumen shoulder alongside the guard rail in the same direction as the appellant’s vehicle. He was pushing a sack truck in which he had gathered empty bottles.
The front left side of the appellant’s vehicle struck Mr Hoy, throwing him onto the bonnet and then into the top left corner of the windscreen, against which he struck his head. He was then thrown into the air before bouncing and rolling along the shoulder of the roadway. He later died in hospital from the injuries he sustained in the collision. Along the relevant stretch of Mount Barker Road, there was no street lighting in the area, and it was dark. The signed speed limit was 80 kilometres per hour and the appellant’s vehicle was estimated to have been travelling at between 55 and 68 kilometres per hour at the time of the collision.
The appellant stopped her vehicle, about 150 metres from the point of impact with Mr Hoy. The appellant’s son got out of the vehicle. He said that the appellant tried to drive off so no-one would find out what happened. The appellant told him not to call the police, but he did so anyway. He dialled ‘000’ and told the operator that the appellant had been driving whilst drunk and had struck the deceased. The appellant was heard by the police communication officer, who answered the ‘000’ call, saying ‘no, no’ as her son gave her name to the operator. She was also heard saying that she was in the middle of the road (when she hit something), and that she had only had a couple of drinks.
The police officers who spoke with the appellant at the scene described her as unsteady on her feet with a strong smell of alcohol about her body. During a later record of interview with police, the appellant claimed that she had been attacked by Mr Lloyd and wanted to get away from him. She said that she had ‘only consumed two six packs of Carlton Dry beer’.
A sample of the appellant’s blood was taken at 12:45am the following morning at the Mount Barker Hospital. Her blood alcohol level was not less than 0.162 per cent. Assuming that she had been drinking consistently between 6:00pm and 11:00pm, her blood alcohol concentration was calculated to be between 0.12 per cent and 0.20 per cent at the time of the collision, with the most likely blood alcohol concentration around 0.15 per cent.
The sentencing Judge said that he was not prepared to accept the appellant’s version of events, as provided in the police interview, without her giving evidence. The appellant elected not to do so. His Honour sentenced the appellant on the basis she travelled to see Mr Lloyd because she wished to, rather than because she felt compelled by him to do so, and declined to accept that she drove home to Murray Bridge because she was in fear of Mr Lloyd.
The appellant’s personal circumstances
At the time of sentence, the appellant was aged 39 years. She had enjoyed a loving and happy upbringing. She was particularly close to her mother, who died in 2019.
The appellant became involved in a relationship with Mr Lloyd in 2016, which ended in 2019. The relationship was a toxic one, marred by alcohol abuse by both parties. Following the breakdown of her relationship with Mr Lloyd, and the death of her mother in 2019, the appellant’s mental health deteriorated. She was prescribed anti-depressant medication and became increasingly reliant upon alcohol as a form of self‑medication.
In a psychological report dated 18 May 2022, Ms Susan Heinrich considered that at the time of the offending, the appellant was suffering from an undiagnosed prolonged grief disorder, primarily due to the death of her mother. Ms Heinrich said that she also satisfied the criteria for an Alcohol Use Disorder. Ms Heinrich considered that since the offence, the appellant satisfied the criteria for post‑traumatic stress disorder (‘PTSD’). Ms Heinrich noted that during the consultation the appellant expressed remorse for her offending and did not minimise her conduct. As to her prospects of rehabilitation, Ms Heinrich said that from a clinical perspective, even without further punishment, it was very unlikely the appellant would re-offend.
The appellant has one child, a son who she raised as a single mother after separating from his father a short time after his birth. She enjoys a close relationship with him. Following her incarceration, her son now lives between his maternal grandfather and his biological father, with whom he had previously only had limited contact. The sentencing Judge had regard to the adverse impact the appellant’s incarceration will inevitably have upon her son.
Character references tendered to the sentencing Judge attested to the highly commendable features of the appellant’s character. Since being remanded in custody, she has engaged with a psychologist and undertaken various rehabilitative courses including the SMART recovery program.
The appellant has limited antecedents. Relevantly, however, on 25 October 2021, (a short time prior to the offending the subject of the appeal) she was fined $1,100 and disqualified from driving for 12 months for a drink driving offence committed on 26 May 2021 when a breath test returned a reading of 0.155 per cent. On that occasion, police officers found three empty beer bottles in the appellant’s vehicle, together with a partially consumed bottle in the drink holder of the centre console. When sentenced in the Murray Bridge Magistrates Court, the Magistrate told the appellant that following the period of disqualification it would be necessary for her to have her driver’s licence re‑issued; as is usual, she was specifically warned not to drive whilst disqualified and, if she did so, she risked imprisonment.
The sentencing Judge’s remarks
The sentencing Judge found that the appellant’s offending was ‘objectively very serious and [the appellant’s] moral culpability in committing the offence was high.’ His Honour did not accept that the appellant drove to visit Mr Lloyd at his insistence, but rather, was satisfied that she chose to drive because that is what she wanted to do. His Honour considered that the appellant’s moral culpability was in the high range given she was extremely intoxicated, drove whilst disqualified, and did so notwithstanding she was warned by her son and Mr Lloyd, at various times, not to drive.
The sentencing Judge had regard to the victim impact statements and the distress caused to the deceased’s family.
The sentencing Judge accepted that the appellant was remorseful for her offending and referred to her expressions of contrition, letter of apology and early guilty plea.
The sentencing Judge considered that if the appellant abstained from alcohol, she was unlikely to re-offend.
In relation to the objectives of sentencing, his Honour said:
The primary purpose of sentencing is always to protect the safety of the community. There is a strong need to protect the safety of the community from disqualified and drunken drivers who drive dangerously. Your case exemplifies why that is so.
The sentence must also ensure that you are adequately punished for your offending behaviour and held accountable to the community for it. There is also a strong need, in cases of this kind, to publicly denounce this type of dangerous driving that results in the death of another person.
General deterrence is always an important secondary sentencing consideration for offences of this kind. As a community, we are all road users. Drivers who place the safety of others at risk by driving dangerously must be strongly deterred, especially from driving in the manner you did and against a disqualification order. All of us are invested in road safety and sentencing, in part, assists in that message.
Given that you drove whilst disqualified and when intoxicated, there is also an element of specific deterrence required, although in light of the report of the psychologist, I accept that it does not have a significant role to play in sentencing you.
The sentence must, of course, take into consideration your rehabilitation.
The sentencing Judge then proceeded to impose the sentence, outlined earlier.
Ground of appeal – manifest excess
The sole ground of appeal is that the sentence was manifestly excessive.
Nonetheless, the appellant also criticised the use by the sentencing Judge of the appellant’s conduct immediately after the collision. It is convenient to first address those criticisms, notwithstanding that they are not alleged as a separate ground of appeal.
The appellant’s complaint has two limbs. First, the appellant contended that the sentencing Judge made a factual error when he observed that the appellant ‘appeared to be willing to drive off and leave Mr Hoy on the side of the road. But for your son’s responsible actions you may well have done that.’ That finding by his Honour, however, was based on a prescribed interview conducted by police with the appellant’s son. During that interview, he said:
She wanted to drive off and so no one would find out coz she kept telling me not to call the cops or anything. I’m not quite sure what for but I just got out before the car started – before – coz she started to drive again a little bit … and I just got out then as well so like yeah. Cos I don’t know coz she said, she just wanted to drive off and she didn’t want me to call the police.
The finding that the appellant ‘appeared to be willing to drive off’ was consistent with her son’s statements to police during his interview. There was no error by the sentencing Judge in that regard.
Second, the appellant contended that the sentencing Judge infringed the principle enunciated in R vDe Simoni[1] (‘De Simoni’). A sentencing judge is prohibited from taking into account an uncharged offence which would render the unlawful conduct for which the appellant fell to be sentenced different or more serious.[2] This principle of sentencing was explained by Gibbs CJ in De Simoni:[3]
… the sentence imposed on an offender should take account of all the circumstances of the offence is subject to a more fundamental and important principle, that no one should be punished for an offence of which he has not been convicted. Section 582 reflects this principle. The combined effect of the two principles, so far as it is relevant for present purposes, is that a judge, in imposing sentence, is entitled to consider all the conduct of the accused, including that which would aggravate 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) 79 A Crim R 154.
[3] De Simoni (1981) 147 CLR 383 at 389 per Gibbs CJ.
This principle is now embodied in s 10(1)(d) of the Sentencing Act.
It is to be accepted that the appellant was not charged with the offence of leaving the scene of an accident without rendering assistance, contrary to s 19AB of the CLCA. Whilst the sentencing Judge was not entitled to sentence the appellant for an offence with which she was not charged, his Honour was entitled to have regard to the context and circumstances surrounding the offence. In sentencing, his Honour said:
Even allowing for the fact that you were intoxicated, panicked and in a state of shock after you struck Mr Hoy, your behaviour towards your son that night was deplorable. You appeared to have only been concerned for yourself. You appeared to be willing to drive off and leave Mr Hoy on the side of the road. But for your son's responsible actions you may well have done that.

Significantly, his Honour went on to say:
You are not here to be punished for your poor behaviour after the fatal collision, but your conduct does you no credit whatsoever. Your behaviour after the collision can only be described as amoral.
The appellant’s post-accident conduct was, at least, relevant to demonstrating the extent of her intoxication and, at least initially, her lack of contrition. The sentencing Judge made it clear that he was not punishing the appellant for her conduct after the event. Nor did his Honour lose sight of the appellant’s latter expressions of contrition, namely her plea of guilty, her written apology and her acceptance of the consequences of her conduct. We are satisfied there was no breach by his Honour of the De Simoni principle.
The question remains whether the sentencing Judge placed too great an emphasis on the appellant’s post-offence conduct, in his ultimate consideration of the appropriate sentence. To that extent, this issue is in effect a particular of the ground of manifest excess.
Returning to the sole appeal ground that the sentence was manifestly excessive, the relevant principles are well known.[4] As the Court of Appeal explained in Hackett v The Queen:[5]
Absent a specific error it is only if the sentence is found to be “unreasonable or plainly unjust” that a challenge of manifest excess will succeed. A sentence which is unreasonable or plainly unjust for no reason other than that it is manifestly too long or too short is a sentence which has not been imposed according to rules of reason and justice. It is not sufficient for this court to conclude that it would have come to a different decision to the one reached by the sentencing judge. The judgment is a discretionary one and what is required is that the sentencing judge must take into account all relevant (and only relevant) considerations in forming the conclusions reached. Judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies. To observe that a sentence is “very heavy” 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] [2021] SASCA 32 at [8] per Kelly P, Lovell and Livesey JJA.
It will be a rare case where error can be demonstrated by giving too much or too little weight to a relevant matter. Nor is it sufficient for an appellate court to merely conclude that it would have come to a different decision from that reached by 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 and Bell JJ.
Whilst the sentences imposed in other cases do not dictate whether the sentence under review is erroneous, it can be informative for an appeal court to consider the sentences customarily imposed when evaluating whether a sentence is manifestly excessive or inadequate.[7] To that extent, a historical survey of comparative sentences can provide a general guide as to the adequacy of a sentence.[8] Nonetheless, there are well recognised limitations in the evaluation of past sentences.[9] In the present appeal (and the recent cases of R v Henderson,[10] and R v Branscheid[11]) the Director provided an extensive schedule of sentences imposed for the offence of aggravated causing death by dangerous driving covering the period 2019 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 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 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).
The review undertaken in R v Akol demonstrated that the initial form of the offence was introduced in 1927 because juries were reluctant to convict drivers for manslaughter. Nonetheless, over time, it was apparent from Parliament’s amendments, as well as the decisions of the courts, that community attitudes have hardened markedly, particularly at the time of the Statutes Amendment (Vehicle and Vessel Offences) Act 2005 (SA) when the penalty for aggravated or subsequent offences was increased to reflect the gravity of a manslaughter offence and the potential for life imprisonment.[13] As can be seen, it is now clear that the practice which was considered in R v Payne[14] (of imposing sentences in the order of three years without suspension) has long ceased to represent the usual approach.[15] Indeed, in a number of relatively recent cases, particularly since the introduction of the aggravated form of the offence, the starting point has been imprisonment in the order of 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 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). See also Bubner v The Queen (2022) 99 MVR 94; R v Henderson (2023) 104 MVR 68.
Nonetheless, much higher sentences have also been imposed, particularly where the offender’s moral culpability is high because the circumstances 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).
Whilst it is true that the sentencing discretion is not confined to imposing sentences proportionate to the moral blameworthiness of the defendant, even where it might be thought low, the sentence must nonetheless reflect that the offending has resulted in the loss of human life. Unsurprisingly, it is necessary for the sentence to reflect the very point of the offence, being that dangerous driving has caused death, even though that was not intended. It is a serious matter to cause the loss of human life and it is necessary for the sentencing court to give full weight to the high value attached by the community to the sanctity of human life.
The wide range of circumstances and conduct capable of constituting the offence of aggravated cause death by dangerous driving means that immediate imprisonment without suspension or home detention cannot be said to be inevitable; nonetheless many cases, perhaps most, will require that a sentence of imprisonment be imposed and served immediately. That is so not only 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 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 and Nicholson JJ.
In addition, the need for personal deterrence will depend upon a range of considerations such as the degree of carelessness or positive recklessness exhibited, and the nature of the driving, including whether it exhibited high speed, deliberate flouting of the road rules and aggravating features such as the use of drugs or alcohol.[19]
[19] R v Akol (2020) 284 A Crim R 246 at [100]-[101] per Livesey J (with whom Nicholson and Bleby JJ agreed).
All these considerations take place in a context where, over some decades now, there has been considerable attention given in the media and the schools to road safety and avoiding driving under the influence of drugs or alcohol. The community is now much less tolerant of dangerous driving, particularly where it exhibits driving at high speed, racing or ‘hoon’ driving and marked recklessness, especially whilst intoxicated by alcohol or drugs.
As is recognised by ss 3 and 4 of the Sentencing Act, it is necessary for sentencing courts to consider the safety of the community as well as the secondary considerations of deterrence (whether personal or general), denunciation and punishment. It is also of course necessary to give full weight to the defendant’s personal circumstances and rehabilitation prospects.
In the present case, the appellant contended that the starting point of eight years imprisonment was manifestly excessive having regard to the circumstances of the offence, and the personal matters favourable to her. The appellant, whilst acknowledging the limitations in making direct comparisons with other cases, submitted that the circumstances in the present case were less egregious than in Bubner v The Queen[20] (where the dangerous driving caused the death of two individuals) and R v Akol (where the offender was subject to a suspended sentence for dangerous driving causing harm, intoxicated with drugs and had engaged in street racing immediately before the collision). Yet, the sentence imposed in this case was higher than in either of those cases.
[20] (2022) 99 MVR 94.
It is to be immediately recognised that in Bubner v The Queen, the offender was not disqualified from driving at the time of the relevant offending, nor was she warned against continuing to drive whilst intoxicated. Whilst this Court adopted a starting point of six years imprisonment for each offence (there being two victims) the partially concurrent sentence was in fact nine years before a reduction on account of the guilty pleas. In relation to R v Akol, it is to be remembered that the offender was a very young man at the time of the offending, with rather unusual and compelling personal circumstances.
The appellant submitted there were significant matters of mitigation including the appellant’s previous good character and lack of prior offending before 2021, the adverse impact of incarceration on her son, her undiagnosed psychological conditions of prolonged grief disorder and Alcohol Use Disorder which were causally linked to the offending, her remorse and contrition, and her good prospects of rehabilitation.
The respondent maintained that the sentence was within the permissible range for the offence and the offender.
Determination of the manifest excess contention
This was a serious example of an offence of its kind. Significantly, the appellant was disqualified from driving just two months earlier, having driven whilst intoxicated after returning a blood alcohol reading of 0.155 per cent. On that occasion, she was warned by a magistrate that she would face a period of imprisonment should she drive during the period of disqualification. Evidently, she was not deterred by this court-imposed sanction.
The appellant’s moral culpability for her offending was high. Her blood alcohol concentration was high at the time of the collision and the cause of her dangerous driving. The effects of that high level of intoxication are well known and obvious.[21] In this case, the appellant was vomiting a relatively short time before the collision and was told repeatedly by her son and Mr Lloyd not to drive. Yet, in the face of those warnings she persisted in driving. In addition, the appellant drove in an intoxicated state over an extended distance which, in turn, exposed her son and other road users to a serious risk of harm.
[21] Appendix II to the respondent’s written submissions is a copy of statistics provided by South Australian Police for drink and drug driving in South Australia for 2019-2022 (inclusive). These statistics demonstrate the prevalence of offences of this kind in South Australia.
Nonetheless, it may be accepted that there were features of the appellant’s personal circumstances which were undoubtedly favourable. She had no prior convictions before October 2021. She was remorseful. Her favourable rehabilitation prospects demonstrated that she was unlikely to re-offend. In addition, there is the deleterious effect of her incarceration on her teenage son.
We recognise that the appellant must do more than show that this Court may have sentenced differently,[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 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 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 inconsistent with the court having 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).
In our view, though there is no suggestion that the sentencing Judge overlooked any relevant consideration, we have come to the conclusion that this sentence was too high for an offender with limited antecedents and good prospects of rehabilitation. The starting point of eight years was beyond the upper end of the permissible range for an offence of this kind.
The sentence was manifestly excessive. It is necessary to set aside the sentence and re-sentence the appellant.
Re-sentencing the appellant
It is not necessary to repeat the circumstances of the offending and the offender. In our view, a sentence of imprisonment of six years and six months would appropriately reflect both the serious circumstances of the offending and the circumstances of the offender. Like the sentencing Judge, we will afford the appellant the full 25 per cent reduction for her guilty plea. That results in a sentence of four years, 10 months and 16 days.
As the offence is a serious offence against the person under the Sentencing Act, when fixing the non-parole period the mandatory minimum is four-fifths of the sentence.[24] It has never been suggested that special reasons exist for departing from the prescribed mandatory minimum. We fix a non-parole period of three years, 10 months and 24 days.
[24] Sentencing Act 2017 (SA) s 47(5)(d).
The sentence must commence to operate from 21 December 2021, when the appellant was taken into custody by police.
Given the seriousness of the offending and the associated circumstances of aggravation, the appellant will be disqualified from holding or obtaining a driver's licence for a period of 15 years, which must take effect upon her release from prison.[25]
[25] Road Traffic Act 1961 (SA) s 169B.
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.
Orders
1.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.