R v PEAKE No. SCCRM-02-129 [2002] SASC 303

Court of Criminal Appeal: Doyle CJ, Wicks and Besanko JJ

DOYLE CJ. The appellant pleaded guilty in the District Court to two counts of causing death by dangerous driving, contrary to s 19A(1) of the Criminal Law Consolidation Act ("the Act"). The maximum penalty for that offence, by a first offender, is imprisonment for ten years and disqualification from holding or obtaining a driver's licence for five years or such longer period as the Court orders.

The appellant also pleaded guilty to one count of driving a motor vehicle in a manner dangerous to the public and causing grievous bodily harm, contrary to s 19A(3) of the Act. The maximum penalty for that offence is the same maximum as that just mentioned.

The appellant also pleaded guilty to one count of driving a motor vehicle in a manner dangerous to the public and causing bodily harm, contrary to s 19A(3) of the Act. The maximum penalty for that offence is imprisonment for four years and disqualification for one year or such longer period as the Court orders.

The Judge imposed a single sentence of imprisonment for fifteen months. The Judge fixed a non-parole period of nine months. But for the plea of guilty, which the Judge said came "at a relatively late stage", the Judge would have sentenced the appellant to imprisonment for eighteen months. The Judge ordered that the appellant be disqualified from holding or obtaining a driver's licence for seven years.

The appellant appeals on the ground that the sentence is manifestly excessive.

The four charges arose from a collision between two motor cars on 14 March 2000.

The appellant was driving a light truck. The engine was fitted with a governor. The truck could not travel faster than 110kph.

The appellant was driving on the Sturt Highway between Truro and Gawler, driving towards Gawler in a westerly direction. The road was straight. There was a single lane for traffic in each direction. There was a broken white line in the centre of the road applicable to westbound traffic. Accordingly, it was permissible for a westbound vehicle to overtake another westbound vehicle. There was an unbroken line applicable to eastbound traffic. The speed limit on the section of road where the collision occurred was 110kph.

At the place where the collision occurred, there was a gentle downward grade for westbound traffic.

While travelling downhill and in a westerly direction, the appellant pulled out to overtake a Camira sedan travelling in the same direction. The Camira was travelling at about 80kph. The appellant was travelling at about 100kph as he began to overtake. The truck was capable of travelling only slightly faster than that. The appellant moved onto the incorrect side of the road. Although the Judge made no finding to this effect, it is likely that the driver of the Camira increased his speed slightly. The front of the appellant's truck was about level with the front of the Camira, when the appellant observed a Subaru sedan approaching from the west. A passenger in the appellant's truck had seen the Subaru before the overtaking manoeuvre began. After the passenger saw the Subaru, it may have been temporarily concealed behind a slight rise in the road to the west of where the collision occurred.

When the appellant saw the Subaru approaching he applied the brakes, with a view to returning to the correct side of the road. The truck began to skid. It clipped the Camira, which then spun into the oncoming Subaru. The result was that two persons were killed, and two were injured.

The appellant was not exceeding the speed limit. It was not unlawful to overtake another vehicle at the place where he attempted to do so. But the appellant should have seen the approaching Subaru sooner than he did. It was there to be seen. His passenger saw it. It is also clear that the length of roadway between where the appellant began to overtake, and the next crest to the west, or the limit of visibility, was not a sufficient distance for the manoeuvre to be undertaken safely. I make that point having regard to the speed at which the Camira was travelling, the maximum speed at which the truck could travel, and the fact that the truck was a little slow to pick up speed. Moreover, on two previous occasions the appellant had attempted to overtake the Camira. He had been travelling behind it for some time. On each of those occasions the Camira had accelerated slightly, and the appellant had been unable to overtake. The appellant should have realised that this might happen again, and that extra care was needed in the circumstances.

The Judge said that the driving "comes into the most serious form of dangerous driving for this offence". He also said that it amounted to "outrageous and bad driving".

Counsel for the appellant criticised the Judge's remarks, and submitted that they were wrong. I would not criticise the appellant's driving as severely as did the Judge. But one cannot attach too much weight to the precise terms used.

The appellant undertook a manoeuvre that required considerable care. There was only one lane for traffic in each direction. It was quite likely that oncoming traffic would be travelling at or above the speed limit of 110kph. The Camira was travelling at about 80kph. The truck could not be driven much faster than 100kph. The appellant knew that it took a little while to pick up speed. It should have been obvious that it would take the appellant some time to pass the Camira. The appellant knew that the Camira might accelerate again. In those circumstances, he should not have attempted to overtake where and when he did. The length of clear roadway ahead of him was not sufficient to undertake the manoeuvre safely.

The danger involved in attempting to overtake in those circumstances was self-evident. The speed at which the appellant was driving, and the likely speed of oncoming traffic, meant that any collision was likely to be a severe one, as the collision was. In attempting to overtake when he did, the appellant created a significant risk of a serious accident. The appellant made a serious error.

This was not a case of momentary inattention. It was not a case of a failure to deal adequately with an emergency or with an event that was not ordinarily to have been expected. It was a dangerous manoeuvre deliberately undertaken, at a time when the appellant should have realised that he should not have undertaken it.

Accordingly, this was dangerous driving that carried with it a grave risk of serious harm. The consequences were devastating.

If the Judge overstated the degree of wrongdoing, his overstatement was only a matter of degree. What he said does not amount to a material error.

As counsel for the appellant pointed out, there were powerful mitigating circumstances to be taken into account.

The appellant had led a good and industrious life, despite a troubled childhood. He was deeply remorseful. His reaction to the consequences of his conduct was such that he required psychiatric treatment. It is likely that he will require treatment for a long time. Since the accident he has been out of work. He has worked as a volunteer at a hospital, reflecting a desire to help others. His prospects of rehabilitation are good.

But the fact remains that these are serious offences. The tragic consequences must be taken into account. Two lives were lost, and one of the injured persons was seriously injured. The sentence imposed is a moderate one. It could easily have been heavier. The Judge must have taken full account of the mitigating circumstances.

I consider that the Judge did not err in declining to suspend the sentence.

The offences of causing death by dangerous driving are not at the lower end of seriousness for offences of their kind. It will not often be appropriate to suspend a sentence of imprisonment for causing death by dangerous driving, when the offending is serious. That is not to say that a sentence of imprisonment in such a case can never be suspended. But the offences are serious offences. The offence would usually call for a deterrent penalty.

When the circumstances of the offending are serious, the Court must think carefully before it finds good reason to suspend a sentence. In the present case the sentencing Judge had to take into account the fact that there were two further offences, even though all offences arose from one incident. The seriousness of the offending, and the consequences of the offending, were relevant matters to take into account, when deciding whether there was good reason to suspend the sentence having regard to the powerful mitigating circumstances to which I have referred.

In considering an attack upon the decision not to suspend the sentence, it has to be recognised that the decision to suspend or not to suspend a sentence of imprisonment involves the exercise of a discretion. The discretion has to be exercised by reference to the circumstances of the case and the circumstances of the offender, but having said that it is a wide discretion.

The role of the Court of Criminal Appeal is not to substitute its decision for that of the sentencing judge. The Court will interfere only if the decision is wrong. That is, if there has been an error of law or an error of principle in the manner in which the judge approached the exercise of the discretion, or if the actual decision is one that could not reasonably be made in the circumstances.

There was no error of approach in this case. The Court could interfere with the Judge's decision only if satisfied that it was not reasonably open in the circumstances.

There will often be room for debate as to whether a case is an appropriate one for a suspended sentence of imprisonment. The fact that there is room for debate does not indicate error by the judge. It is the inevitable result of the fact that a decision to suspend involves the exercise of a wide discretion. If there is a wide discretion to be exercised, there will necessarily be room for differences of opinion as to the exercise of the discretion in particular cases. If an exercise of the discretion is attacked on appeal on the grounds that the actual exercise is not reasonably open, the Court on appeal cannot interfere if the result falls within an acceptable range of decision-making.

In the present case, as I have said, there was no error of principle in the Judge's approach. In the circumstances of the case, one cannot say that the decision not to suspend the sentence was wrong. The Judge's decision was well and truly open in the circumstances.

32. WICKS J: I agree that the appeal should be dismissed for the reasons given by the Chief Justice. There is nothing I wish to add to the reasons.

33. BESANKO J: I agree that this appeal should be dismissed. I agree with the reasons of the Chief Justice.