R v JASON No. SCCRM-02-06 [2002] SASC 201

Court of Criminal Appeal: Doyle CJ, Williams and Gray JJ

DOYLE CJ: I would dismiss the appeal. I agree with the reasons given by Gray J. There is nothing that I wish to add.

WILLIAMS J I agree that this appeal should be dismissed for the reasons given by Gray J.

The appellant pleaded guilty to nine counts of creating risk of bodily harm[1], two counts of damaging property[2] and one count of illegal use of motor vehicle[3]. He was convicted of each offence.

The learned sentencing judge ("the judge") invoked Section 18A of the Criminal Law (Sentencing) Act 1988 (SA) ("the Sentencing Act") and imposed one penalty for all offences. He sentenced the appellant to imprisonment for a period of five years and three months and set a non-parole period of three years and six months. In fixing the head sentence the judge took seven years as his starting point and made a reduction of 25 percent on account of the pleas of guilty. The judge declined to exercise his discretion to suspend the sentence. He disqualified the appellant from holding or obtaining a driver's licence until further order.

The offending occurred on 13 May 2001. At about 8.30 pm the appellant was observed driving at Hackham West by a police officer. He was followed in an unmarked police vehicle. A check indicated that the vehicle registration had expired some days earlier. The officer activated the vehicle's flashing red and blue lights. The appellant stopped and the unmarked police vehicle stopped to the rear of his vehicle. The officer started to get out of the police vehicle. The appellant then reversed into that vehicle. The officer had to jump out of the way to avoid injury.

The appellant then drove off, with the officer giving chase. During the pursuit, the appellant drove at high speeds. He overtook a number of vehicles and caused others to take evasive action. A marked police vehicle also joined the pursuit, as did the police helicopter. The appellant drove towards the marked police vehicle, causing it to swerve to avoid collision. At that time his speed was estimated at 60 to 70 kilometres per hour.

A second marked police vehicle began following the appellant's vehicle. That vehicle activated its siren, but the appellant continued driving at high speeds reaching up to 100 kilometres per hour. The appellant travelled through the intersection of South Road and Flaxmill Road, Morphett Vale. He disobeyed a red light at a speed of approximately 80 kilometres per hour. As he proceeded along South Road, he again disobeyed a red light at excessive speed.

Later the appellant rammed the second marked police vehicle and then drove off. Police officers were forced to take evasive action to avoid being injured. Later still more deliberate contact occurred with another of the police vehicles. Again the appellant drove off. During the final stages of the chase yet another police vehicle was forced to take evasive action to avoid collision. The appellant was finally apprehended in a private driveway. At that time it was ascertained that he was driving a stolen vehicle. Each of the driving incidents gave rise to a separate charge. On some occasions two police officers were involved in the incident.

The judge had regard to the victim impact statements of a number of the police officers. He noted that no physical injuries of any permanent nature had been sustained. However the incident was said to have affected the officers and their families.

The appellant had extensive criminal antecedents. He had numerous convictions for resisting police, assault police, assault occasioning bodily harm, offences of dishonesty and driving offences. Offences directed towards police officers extended over a period of many years. For these offences on occasions he received sentences of imprisonment. At times the sentences were suspended.

Dr Raeside concluded that the appellant did not have a psychiatric disorder but suffered from an anti-social personality disorder. He had problems with alcohol and drug abuse and required constant medication to control mood swings and epilepsy.

The judge took into account the appellant's personal antecedents, past difficult life and problems associated with his drug taking history. He had regard to his age of 34 years. It was the judge's view that unless the appellant's drug taking was controlled his future was bleak.

The judge took the view that the offending was serious. It required a lengthy term of imprisonment. He noted that the appellant's conduct created a grave risk to police officers as well as members of the public. Regard was had to personal and general deterrence.

The judge exercised his powers under section 168 of the Road Traffic Act 1961 (SA) to suspend the appellant's driver's licence until further order. He was of the view that the appellant was not entitled to drive until he could demonstrate that he had become sufficiently responsible.

The appellant was granted leave to appeal on the ground that the sentence imposed was manifestly excessive. Leave was refused with respect to the other matters of complaint.

The appellant pointed to a number of matters which were said to demonstrate that the sentence was manifestly excessive. It was said that the sentencing judge failed to give an adequate reduction for the appellant's plea of guilty; and failed to provide adequate reasons to disclose how he had arrived at the starting point of seven years. It was said that he erred in failing to consider the sentence that would have been imposed had separate sentences been imposed for each offence. This failure was said to offend principles enunciated in R v Major[4]. It was argued that the judge took an inappropriate view of the appellant's conduct. He treated it more seriously than was warranted. This was demonstrated by his use of emotive language such as "extreme danger" and "grave risk".

In Dinsdale v R[5] Gleeson CJ and Hayne J reaffirmed the principles to be applied in regard to sentencing appeals:

"The task of the Court of Criminal Appeal was to determine whether there was error made in sentencing the accused, error being understood, in this context, as it was explained in House v The King:[6]

'It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.'

Those principles apply both to Crown appeals based upon alleged inadequacy and appeals by offenders based upon alleged excessiveness."

"If it had not been for your plea of guilty, I would have sentenced you to 7 years imprisonment. Having regard to your plea of guilty, I reduce that sentence to 5 years 3 months imprisonment. ...."

This represents a discount of 25%. Counsel for the appellant suggested that the appellant was entitled to receive "the maximum [reduction] in the range of 30%-40% for his plea of guilty".

No material was identified in support of this proposition. The extent of any reduction for a plea of guilty is a matter for the sentencing judge. A maximum discount range of between 30% and 40% does not exist. To allow a reduction of 25% in this case was well within the judge's discretion. This ground of appeal is without substance.

Counsel for both parties accepted that it was appropriate for the judge to have imposed a single sentence pursuant to Section 18A of the Sentencing Act. The appellant submitted that the approach to sentencing identified in Major was the approach should have been followed. As has been made clear in later cases, Major does not set out a universal rule. The approach identified in Major does not assist in regard to a course of conduct case such as the present. To consider each offence in isolation does not allow a consideration of the aggravated nature of each important feature of the criminal conduct.To consider one necessarily involved considering all. They were relevantly a continuing course of conduct. Although related a number of separate criminal incursions were involved.

Counsel for the Crown referred to the following passage from R v Elliott[7]:

"To adopt the approach outlined in Major in this case would involve considering each offence in isolation before considering the total sentence. The difficulty with such an approach is that each offence cannot sensibly be treated in isolation. Each offence was aggravated by the other offences. To consider any one offence necessarily involves considering all offences. Proper consideration cannot be afforded to any on offence if considered in isolation.

I consider the approach outlined in Major even as modified in Symonds to be of no assistance in this case. It is not appropriate for a 'one course of conduct' case or a 'one transaction' case or a 'one multi-faceted course of criminal conduct' case. This is a case where it is appropriate and convenient 'to go directly to the single sentence to be imposed'."

In Elliott reference was made to the remarks of King CJ and Wells J in Attorney-General v Tichy[8]. In that case Wells J observed:

"The practice of imposing either concurrent or consecutive sentences cannot avoid creating anomalies, or apparent anomalies, from time to time. What must be done is to use the various tools of analysis to mould a just sentence for the conduct of which the prisoner has been guilty. Where there are truly two or more incursions into criminal conduct, consecutive sentences will generally be appropriate. Where, whatever the number of technically identifiable offences committed, the prisoner was truly engaged upon one multi-faceted course of criminal conduct, the judge is likely to find concurrent sentences just and convenient. There are dangers in each course. Where consecutive sentences are imposed it may be thought that they are kept artificially apart where they should, to some extent, overlap. Where concurrent sentences are imposed, there is the danger that the primary term does not adequately reflect the aggravated nature of each important feature of the criminal conduct under consideration."

The Crown submitted that the nine offences of creating risk of bodily harm could be fairly viewed as five incursions into criminal conduct. This was because on four of the occasions the risk of harm was to two police officers in the same vehicle. The Crown also accepted that the offences of damage to property related to two of five incursions. Accordingly it was said that it was appropriate to treat the course of conduct as giving rise to a consideration of both concurrence and consecutive sentencing principles. The illegal use offence was put in a separate category and the Crown submitted that consecutive sentence principles should apply.

The judge's starting point before having regard to a reduction for the pleas of guilty was seven years. He plainly had regard to sentencing principles relating to concurrent and consecutive sentences. This approach was open to him and accorded with proper sentencing practice. The appellant's submissions must be rejected. There is no basis for suggesting that the judge adopted an incorrect approach.

The appellant further complained that it was impossible to discern the judge's reasons for selecting seven years as his starting point. It was said that he was obliged to identify the precise approach taken to the issue of concurrent and cumulative sentencing. The submission went so far as to demand the articulation of the mathematical processes embarked on by the judge. Reliance was placed on Major and R v Place.[9] I do not consider that these authorities support this submission. I reject this submission. Recent High Court decisions have reaffirmed that sentencing involves the judge balancing many considerations and then arriving at a discretionary judgment as to an appropriate sentence.

In AB v The Queen[10] McHugh J considered the question of the proper approach to sentencing:

"To adopt a two-tiered approach to sentencing by beginning with an objectively determined sentence which is then arithmetically adjusted to take account of various factors is also a process which is plainly unsuited to the sentencing process in many cases. No doubt, where the circumstances of the offence are such that a heavy jail sentence is clearly required, the judge may make a notional or provisional assessment of the appropriate sentence and adjust it accordingly. But even in these cases - where punishment, deterrence and protection dominate the process - such an approach almost always invites error. Statutory exceptions aside, the task of the judge 'is to pass such sentence as in all the circumstances relating to the offence and to the offender is that which he regards as the appropriate sentence'. If the judge first formulates an objectively determined sentence, he or she has only relied on part of the relevant circumstances and has effectively allowed that part of the circumstances to dominate the sentencing process. Worse still, there is a danger that the objectively determined sentence will be formulated by reference to abstractions derived from the circumstances, rather than by reference to the concrete facts of the case. Instead of sentencing his embezzler, with this history, for taking this amount in these circumstances, consciously or unconsciously, the judge may determine the objective sentence by what is perceived to be appropriate for an embezzler who has taken a large (or small) amount of money in breach of trust. Abstraction replaces the convicted person's circumstances in determining the appropriate sentence.

The factors bearing on a sentence will vary from case to case. Frequently, they will point in different directions. The task of the sentencing judge or magistrate is not to add and subtract from an objectively determined sentence but to balance the various factors and make a value judgment as to what is the appropriate sentence in all the circumstances of the case. In R v Rushby, Street CJ said, correctly in my opinion, that the 'determination in any given case of the appropriate sentence involves an adjudicative balancing of a number of differing and not entirely consistent elements'. No doubt at the conclusion of the process, the judge will check the sentence against other comparable sentences and may feel compelled to adjust the sentence up or down. But that is quite different from beginning with an 'objectively' determined sentence."

As earlier observed counsel for the appellant complained that the judge had incorrectly assessed the seriousness of the appellant's conduct. This was said to be evident from his language, particularly the expressions, "extreme danger" and "grave risk".

Driving at high speeds on suburban streets in disobedience of red lights and ramming police vehicles is appalling behaviour which must be viewed seriously. The judge was well justified in using the language that he did. The appellant's driving gave rise to extreme danger. The police and the public were put at grave risk.

The judge incorrectly identified the maximum penalties for the two offences of damaging property. He proceeded on the basis that the maximum period of imprisonment that could be imposed was two years and one year. The correct maximum penalties were three years and two years imprisonment. This error operated in favour of the appellant. No valid complaint arises.

The judge identified 12 months as being the minimum licence disqualification he could impose for the offence of illegal use. Section 86A(2) of the Criminal Law Consolidation Act 1935 (SA) provides:

"Where an adult court finds a person guilty of an offence against this section, the court must (whether or not it convicts the person of the offence and in addition to any other order that it may make in relation to the person) order that the person be disqualified from holding or obtaining a driver's licence for a period of 12 months."

The 12 month period of disqualification could be described as the minimum. However, it was also the maximum. The judge's report to this court for the purposes of the appeal explained that he exercised his powers under section 168 of the Road Traffic Act 1961 (SA) to disqualify the appellant from holding or obtaining a driver's licence until further order. Section 168 (1) provides:

"When a person is convicted before the Supreme Court or any other court of-

(a) an offence against any provision of this Act relating to motor vehicles; or

(b) an offence (under this Act or any other Act or law) in the commission of which a motor vehicle was used or the commission of which was facilitated by the use of a motor vehicle,

(c) may order that that person be disqualified, either for a period fixed by the court or until further order, from holding or obtaining a driver's licence; and ..."

Disqualification until further order was a course open to the judge. It was an appropriate order given the appellant's anti-social personality disorder, his criminal antecedents, his poor driving record and his conduct on this occasion. The complaint about the order for disqualification is without substance.

The facts and circumstances of this offending and the criminal and personal antecedents of the appellant called for a substantial sentence. The sentence was within the judge's discretion. No error has been demonstrated. The judge did not have regard to any irrelevant matter or fail to have regard to any relevant matter. The penalty is not such that by itself it indicates that some error must have occurred.

1 Contrary to s 29(3) of the Criminal Law Consoldiation Act 1935 (SA). Maximum penalty is five years imprisonment.

2 Section 85(3) of the Criminal Law Consolidation Act 1935 (SA). Maximum penalties of two and three years imprisonment.

3 Section 86A of the Criminal Law Consolidation Act 1935 (SA). Maximum penalty two years imprisonment, with a disqualification of driver's licence for twelve months.

4 [1998] SASC 7089; (1998) 70 SASR 488

5 [2000] HCA 54; (2000) 202 CLR 321 at 324-5, see also Gaudron and Gummow JJ at 329 and Kirby J at 339

6 (1936) 55 CLR 499 at 505.

7 (2001) 121 A Crim R 254 at 267

8 (1982) 30 SASR 84 at 93

9 (2002) 219 LSJS 105.

10 [1999] HCA 46; (1999) 198 CLR 111 at 121-2. See also Hayne J at 156

[1] Contrary to s 29(3) of the Criminal Law Consoldiation Act 1935 (SA). Maximum penalty is five years imprisonment.

[2] Section 85(3) of the Criminal Law Consolidation Act 1935 (SA). Maximum penalties of two and three years imprisonment.

[3] Section 86A of the Criminal Law Consolidation Act 1935 (SA). Maximum penalty two years imprisonment, with a disqualification of driver's licence for twelve months.

[4] [1998] SASC 7089; (1998) 70 SASR 488

[5] [2000] HCA 54; (2000) 202 CLR 321 at 324-5, see also Gaudron and Gummow JJ at 329 and Kirby J at 339

[6] (1936) 55 CLR 499 at 505.

[7] (2001) 121 A Crim R 254 at 267

[8] (1982) 30 SASR 84 at 93

[9] (2002) 219 LSJS 105.

[10] [1999] HCA 46; (1999) 198 CLR 111 at 121-2. See also Hayne J at 156