Trewren v The King

Case [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…

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Trewren v The King [2023] SASCA 100
Case
[2023] SASCA 100
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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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