MARK NORMAN HUEPPAUFF v THE KING [2024] SASCA 11

On Appeal from DISTRICT COURT OF SOUTH AUSTRALIA (HIS HONOUR JUDGE ALLEN) DCCRM-19-1301 Appellant: MARK NORMAN HUEPPAUFF Counsel: MR C KUMMEROW - Solicitor: STANLEY LAW Respondent: THE KING Counsel: MR M HINTON KC WITH MS K BALLANS - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) Hearing Date/s: 18/09/2023 File No/s: SCCRM-23-020552 A SUPREME COURT OF SOUTH AUSTRALIA (Court of Appeal: Criminal) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated. HUEPPAUFF v THE KING [2024] SASCA 11 Judgment of the Court of Appeal (The Honourable President Livesey, the Honourable Justice Bleby and the Honourable Justice David) 22 February 2024 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 two counts of causing death by dangerous driving, contrary to s 19A(1) of the Criminal Law Consolidation Act 1935 (SA) (‘the CLCA’) (Counts 1 and 2); and one count of causing harm by dangerous driving, contrary to s 19A(3) of the CLCA (Count 3). On 12 September 2018, the appellant was driving behind a B-double semi-trailer (‘the semi-trailer’). His partner at the time was a passenger in the vehicle. As the appellant's vehicle approached a crest in the road obscuring his view of oncoming traffic, he misunderstood the hazard lights operating on the semi-trailer as a signal that it was safe to overtake. He attempted to overtake the semi-trailer, crossing over an unbroken white line in the process. Shortly after crossing onto the opposite side of the road, the appellant collided head-on with another vehicle causing the death of its two occupants. The appellant’s passenger also sustained injuries in the collision. The appellant was sentenced to four years and six months' imprisonment with a mandatory minimum non-parole period of three years, seven months, and seven days. The sentencing Judge also -- 1 of 16 -- disqualified the appellant from holding or obtaining a driver's license for 10 years to commence upon his release from prison. The sentencing Judge declined to suspend the sentence, or order that the sentence be served on home detention. The appellant sought permission to appeal against his sentence on the sole ground that the sentence was manifestly excessive. The appellant complained that the sentencing Judge erred in his application of s 96 of the Sentencing Act 2017 (SA) (‘the Sentencing Act’) by finding there was not good reason to suspend the sentence, and erred in his application of s 71 of the Sentencing Act by declining to order that the sentence be served on home detention. Held, per the Court, granting permission to appeal but dismissing the appeal: 1. The sentence imposed was not manifestly excessive. 2. There was no error by the sentencing Judge in finding there was not good reason to suspend the sentence or in declining to order that the sentence be served on home detention. 3. The licence disqualification of 10 years, combined with the length of the immediate custodial sentence, did not result in a manifestly excessive sentence. Criminal Law Consolidation Act 1935 (SA) ss 19A(1), 19A(3); Sentencing Act 2017 (SA) ss 3, 4, 47(5)(d), 96, 71, referred to. R v Wooldridge (2015) 123 SASR 422; R v Van Der Heyden (1990) 55 SASR 316, distinguished. Arpaci v The Queen (2020) 91 MVR 414; Hackett v The Queen [2021] SASCA 32; R v Dell (2016) 126 SASR 571; R v Henderson (2023) 104 MVR 68; R v O’Toole [2013] SASCFC 18; R v Payne (2004) 89 SASR 49; Spanjol v The Queen (2016) 55 VR 350; Tammaro v The King [2022] SASCA 103; Wessling v Police (2004) 88 SASR 57, discussed. Branscheid v The King (2023) 105 MVR 387; Bubner v The Queen (2022) 99 MVR 94; Hilfy v The Queen [2020] SASCFC 72; House v The King (1936) 55 CLR 499; Jiminez v The Queen (1992) 173 CLR 572; Johnson v The Queen (2004) 78 ALJR 616; Markarian v The Queen (2005) 228 CLR 357; Martain v The King (2023) 105 MVR 404; R v Coventry (1938) 59 CLR 633; R v Horstmann (2010) 269 LSJS 42; R v Stain [2021] SASCA 70; R v Whyte (2002) 55 NSWLR 252; Trewren v The King [2023] SASCA 100, considered. -- 2 of 16 -- HUEPPAUFF v THE KING [2024] SASCA 11 Court of Appeal – Criminal: Livesey P, Bleby and David JJA 1 THE COURT: The appellant was charged with two counts of causing death by dangerous driving, contrary to s 19A(1) of the Criminal Law Consolidation Act 1935 (SA) (‘the CLCA’) (Counts 1 and 2) and one count of causing harm by dangerous driving, contrary to 19A(3) of the CLCA (Count 3). The appellant pleaded guilty to all three charges. The maximum penalty for each offence was imprisonment for 15 years and disqualification from holding or obtaining a driver’s licence for 10 years or such longer period as the Court orders. 2 The appellant was sentenced as follows: • In relation to Count 1, to imprisonment for four years, reduced by five per cent on account of the appellant’s guilty plea to three years, nine months and 19 days. • In relation to Count 2, to imprisonment for four years, reduced by five per cent on account of the appellant’s guilty plea to three years, nine months and 19 days. • In relation to Count 3, to imprisonment for 12 months, reduced by five per cent on account of the appellant’s guilty plea to 11 months and 13 days. 3 The sentencing Judge ordered that eight months and 12 days of the sentence, imposed on Count 2, be served cumulatively upon the sentence imposed on Count 1, and that the sentence imposed on Count 3 be served wholly concurrently with the sentences imposed on Counts 1 and 2, resulting in an overall head sentence of four years and six months imprisonment. 4 In relation to Counts 1 and 2, being serious offences against the person for the purpose of s 47(5)(d) of the Sentencing Act 2017 (SA) (‘the Sentencing Act’), the sentencing Judge was obliged to fix a non-parole period equal to four-fifths of the head sentence. Accordingly, a non-parole period of three years, seven months and seven days was fixed. His Honour considered there was not good reason to suspend the sentence. His Honour also declined to order the sentence be served on home detention. 5 The appellant was disqualified from holding or obtaining a driver’s licence for a period of 10 years, to commence upon his release from prison. 6 The single ground of appeal is that the sentence imposed was manifestly excessive, in particular: -- 3 of 16 -- [2024] SASCA 11 The Court 2 • the sentencing Judge erred in his application of s 96 of the Sentencing Act by failing to find good reason to suspend the sentence; and • the sentencing Judge erred in his application of s 71 of the Sentencing Act by failing to order that the sentence be served on home detention. 7 For the reasons which follow, we are not satisfied that the sentence was manifestly excessive. We grant permission to appeal but dismiss the appeal. The circumstances of the offending 8 At about 2:00pm on Wednesday 12 September 2018, the appellant was driving his vehicle, a Ford Falcon, in an easterly direction along the Sturt Highway near Wigley Flat. He was travelling home to Berri from Adelaide. In the front left passenger seat was his then partner, Ms Raelene Trimper. 9 Immediately prior to the collision, the appellant was travelling behind a B-double semi-trailer (‘the semi-trailer’), each trailer loaded with shipping containers, on a stretch of road made of sealed bitumen in good condition. The stretch of road consisted of one lane travelling in each direction, with a signed speed limit of 110 kilometres per hour. However, because the semi-trailer was travelling at 90 kilometres per hour, the appellant was also travelling at that speed, and therefore below the speed limit. The weather conditions were fine. 10 A married couple, Mr Michael McAuliffe and Mrs Patricia McAuliffe, were travelling west, in the opposite direction, in their vehicle, a Mazda 2. Mr McAuliffe was driving the vehicle and Mrs McAuliffe was in the front passenger seat. 11 The semi-trailer and the appellant were travelling east on a section of the highway where a crest obscured oncoming traffic from view. The east and west bound lanes were divided by an unbroken white line for vehicles travelling east, such as the semi-trailer and the appellant, and a broken line for vehicles travelling west, such as Mr and Mrs McAuliffe. 12 The driver of the semi-trailer noticed the appellant’s vehicle moving to the right, as though planning to overtake him. With the advantage that the height of his cabin afforded him, the semi-trailer driver could see an approaching vehicle, so he activated his hazard lights to warn the appellant that it was unsafe to overtake. The appellant’s attention was focused solely on the right-hand side of the truck, so he only saw the right indicator and misunderstood the signal as indicating that it was safe to overtake. He rapidly moved to the right, across the unbroken white line and accelerated to overtake the semi-trailer. It soon became clear that he would not be able to complete the overtaking manoeuvre without colliding with the vehicle driven by Mr McAuliffe. Accordingly, the appellant turned his vehicle to the right at the same time as Mr McAuliffe turned his vehicle to the left, resulting in a collision between the vehicles on their respective passenger sides. -- 4 of 16 -- [2024] SASCA 11 The Court 3 13 Other drivers who had been travelling behind the appellant and the semi-trailer described the appellant’s vehicle as driving too close to the rear of the semi-trailer and continuously moving across the centre lane in numerous efforts to overtake. 14 Mrs McAuliffe died at the scene as a result of injuries she sustained in the collision. Mr McAuliffe was airlifted to hospital with critical injuries, including significant head trauma resulting in a haemorrhage. On 8 October 2018, he succumbed to the injuries sustained in the collision. Ms Trimper was also airlifted to hospital. She sustained a fractured left wrist, fractured sternum, fractured right ribs, and bruising and abrasions to her head, hands, chest and abdomen. The appellant sustained minor injuries in the collision. 15 Police conducted a video-recorded interview with the appellant later that evening. During the interview, he said: • He was the driver of the Ford Falcon. • He was following the semi-trailer when it activated what he thought was its right indicator, so he overtook the semi-trailer solely based on the indication. • When he saw the approaching vehicle, he accelerated hard and moved to the right, intending to drive through some smaller trees and a big bush. • The approaching vehicle also came off the road and came straight towards him, and they collided. • He knew he was not supposed to overtake, but the truck put the indicators on for him; he should not have overtaken. • He thought he could overtake on a solid white line if the road was clear, and it was safe. • He could not remember whether the line was solid or broken. • He was familiar with the road and knew the area well. The appellant’s personal circumstances 16 At the time of the offending, the appellant was 70 years old. He was 74 years old when sentenced. He was born in Angaston and spent the early years of his life growing up in the Barossa Valley. When the appellant was about eight years old, his parents divorced, and he moved to the Riverland with his mother and siblings. He had limited contact with his father after this time. When the appellant was 11 years old, his nine-year-old brother drowned in the Murray River. -- 5 of 16 -- [2024] SASCA 11 The Court 4 17 The appellant completed his schooling up to year 10 at Renmark High School. When he was 16 years of age, he left school to enter the workforce. He was registered for service with the armed forces in 1969 and thereafter served in the Royal Australian Artillery. Between 5 February 1970 and 5 February 1971, the appellant was deployed to Vietnam to undertake an operational tour. His duties included active combat. Whilst on tour, he experienced several traumatic events and witnessed the death of a colleague. 18 Subsequently, the appellant was diagnosed with post-traumatic stress disorder (‘PTSD’). Over the years his PTSD manifested itself in alcohol abuse, insomnia, depression and anxiety. The appellant sought treatment for his alcohol addiction and, by the time of sentencing, he was no longer dependent on alcohol. 19 After his tour of Vietnam, and upon his return to Australia, the appellant experienced difficulties working in an enclosed environment due to his PTSD. He obtained employment with various Riverland producers before eventually purchasing his own acreage on the outskirts of Renmark. 20 The appellant married in 1971 and has three adult children: two sons and a daughter. He continues to speak with one of his sons, sees the other son regularly, but does not have contact with his daughter. He divorced his wife in 1992. 21 The appellant’s relationship with Ms Trimper deteriorated in the aftermath of the collision. 22 The appellant has lived in the Riverland region for about 60 years and has been an active member of the local community. He has volunteered with a number of local organisations, including the Renmark Club, the Renmark Football Club and the local Meals on Wheels service. 23 The appellant replied on a psychiatric report prepared by Dr Ewer. Dr Ewer first assessed the appellant in 1999 when he diagnosed him with PTSD. He assessed the appellant again after the collision in March 2023. Dr Ewer opined that the appellant continues to suffer from PTSD and, as a result of the offending, a Major Depressive Disorder. Dr Ewer considered that the appellant would benefit from somatic trauma reprocessing (MASTR) therapy; he has been placed on a waiting list for that program. Dr Ewer opined that imprisonment ‘would see his PTSD deteriorate because he would be in a confined space in close proximity with others and because he probably couldn’t get the specialised treatment he needs for treating PTSD.’ Dr Ewer considered that the appellant has good prospects of rehabilitation. 24 The appellant has relevant, albeit dated, prior convictions for driving related offences for which he has received various penalties in the form of fines, licence disqualifications and good behaviour bonds. He has four prior convictions for driving with excess blood alcohol, and two prior convictions for driving under disqualification or suspension. Most recently, in August 2009, the appellant was -- 6 of 16 -- [2024] SASCA 11 The Court 5 convicted of the offences of driving with excess blood alcohol and contravening a condition of his probationary licence. He was fined $1,100 and disqualified from driving for one year, nine months and 12 days. Sentencing remarks 25 The appellant was sentenced on the factual basis that the truck driver, upon becoming aware that the appellant was attempting to overtake him, activated the hazard lights of his semi-trailer in an effort to warn him against undertaking such a manoeuvre. The appellant’s attention was focused on the right indicator and, as a result, he misunderstood what the truck driver intended to communicate to him. 26 The sentencing Judge proceeded on the basis that the appellant’s driving was dangerous by reason of him travelling too close to the rear of the semi-trailer, thus limiting his effective field of vision; attempting to overtake a semi-trailer by crossing to the right of an unbroken white line, which was in breach of the Australian Road Rules; and overtaking on a stretch of road approaching a crest, which obscured any view of oncoming traffic. 27 The sentencing Judge found that the appellant’s manner of driving was ‘inherently dangerous’, and his decision to overtake in the circumstances which he did ‘is the nightmare of any Australian driver traversing the vast distances of our country’. 28 The sentencing Judge had regard to the victim impact statements and the distress caused by the offending to the deceased’s family. 29 In considering the appellant’s personal circumstances, the sentencing Judge had regard to the appellant’s prior convictions but noted that he was not to be punished for those offences a second time. His Honour had regard to the psychiatric report of Dr Ewer as well as letters of support from individuals close to the appellant, including his sister. His Honour accepted that the appellant was remorseful for his offending and referred to a letter of apology written by him. 30 The sentencing Judge imposed the sentence outlined earlier in these reasons. In considering whether good reason existed to suspend the sentence, his Honour said: Having regard to all relevant matters, I am not satisfied that good reason exists to suspend your sentence. Your decision to overtake the road train in the circumstances that existed was dangerous in the extreme. You were too close to the road train to have any effective field of vision. You overtook on a crest. You overtook crossing a solid line. On your own version, you abdicated responsibility to safely overtake seemingly mistakenly acting on a misconstrued indication given by another road user. Whilst I accept that it is extremely difficult for a 74-year-old man who has led a productive life to be imprisoned for the first time, the seriousness of your offending, together with the need for a deterrent sentence, means that I cannot find that good reason exists to suspend your sentence. -- 7 of 16 -- [2024] SASCA 11 The Court 6 31 His Honour also declined to order the sentence be served on home detention and said that he considered that the ‘paramount consideration to protect the safety of the community requires the term of imprisonment to be served’. Manifest excess 32 The principles of manifest excess are well established. The determinative question is whether, after considering all the circumstances relevant to sentence, and notwithstanding that no specific error of reasoning may be apparent, the sentence imposed was unreasonable or plainly unjust.1 The principles governing the task for the appellate court were explained by this Court in Hackett v The Queen:2 The administration of the criminal law involves individualised justice. The imposition of a just sentence on an offender in a particular case is an exercise of judicial discretion concerned with doing justice in that case. The exercise of the discretion that the law reposes in a sentencing judge does not yield a single correct sentence. 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. (citations omitted) 33 In applying this approach, it needs to be borne in mind that there is no single correct sentence, and sentencing judges should be allowed ‘as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies’.3 34 The appellant does not challenge the length of the sentence. Rather, he complains that the sentence is manifestly excessive by reason of the sentencing Judge’s decision to exercise his discretion not to suspend the sentence; and to decline to order that it be served on home detention. The appellant does not allege 1 House v The King (1936) 55 CLR 499 at 504-505 per Dixon, Evatt and McTiernan JJ; Markarian v The Queen (2005) 228 CLR 357 at [25] per Gleeson CJ, Gummow, Hayne and Callinan JJ; Hilfy v The Queen [2020] SASCFC 72 at [36]-[38] per Nicholson J (with whom Peek and Stanley JJ agreed); Bubner v The Queen (2022) 99 MVR 94 at [31] per Livesey P, Doyle and David JJA. 2 [2021] SASCA 32 at [8] per Kelly P, Lovell and Livesey JJA. 3 Markarian v The Queen (2005) 228 CLR 357 at [27] per Gleeson CJ, Gummow, Hayne and Callinan JJ citing Johnson v The Queen (2004) 78 ALJR 616 at [5] per Gleeson CJ, [26] per Gummow, Callinan and Heydon JJ. -- 8 of 16 -- [2024] SASCA 11 The Court 7 any specific error but contends that an immediate custodial sentence was ‘plainly unjust’, and thus an ‘outcome error’.4 35 The appellant contends that his offending falls at the lower end of the scale of seriousness for this type of offence. The appellant emphasises that the offending was not occasioned by any aggravating features, and the conduct constituting dangerous driving was his gross inattention and misinterpretation of the signal emitted by the truck driver. For that reason, the appellant submits that the circumstances of this matter cannot be compared to recent cases involving aggravated forms of the offence.5 36 The appellant relies on R v Payne (‘Payne’).6 Doyle CJ said:7 There will be cases warranting a lesser sentence, or an order suspending a sentence of imprisonment. A lesser sentence will usually reflect a relatively low level of culpability, and often a finding that the death was caused by momentary inattention or carelessness. A suspended sentence will usually reflect significant personal mitigating circumstances. 37 Payne was decided at a time when the sentencing regime provided for a substantially lower maximum penalty for the basic offence. The maximum penalty for the basic offence was increased in 2006 from 10 years to 15 years. The sentencing practice which was considered in Payne (of imposing sentences in the order of three years without suspension) has long ceased to represent the usual approach.8 Generally speaking, the legislative increase in the maximum penalty for an offence signals an expectation on the part of the Parliament that sentences for that offence will increase. 38 As to whether this is a case ‘warranting a lesser sentence, or an order suspending a sentence of imprisonment’,9 the appellant seeks to draw parallels with R v Wooldridge10 (‘Wooldridge’) and R v Van Der Heyden11 (‘Van Der Heyden’), which both concerned instances of gross inattention and a low level of moral culpability. 39 Van Der Heyden was a Crown appeal. The respondent was sentenced for three counts of causing death by dangerous driving arising out of a single incident. The respondent had entered an intersection on a major arterial road against a red light while driving a prime mover and semi-trailer. The sentencing Judge found that the respondent failed to observe the amber light due to gross and culpable 4 See R v Horstmann (2010) 269 LSJS 42 at [37] per Kourakis J. 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. 6 (2004) 89 SASR 49. 7 R v Payne (2004) 89 SASR 49 at [72] per Doyle CJ, Nyland, Sulan, Anderson and Mullighan JJ. 8 R v Trewren [2023] SASCA 100 at [45] per Livesey P, David JA and Nicholson AJA; Martain v The King (2023) 105 MVR 404 at [78] per Lovell, Bleby and David JJA. 9 R v Payne (2004) 89 SASR 49 at [72] per Doyle CJ, Nyland, Sulan, Anderson and Mullighan JJ. 10 (2015) 123 SASR 422. 11 (1990) 55 SASR 316. -- 9 of 16 -- [2024] SASCA 11 The Court 8 inattention (as opposed to deliberately ignoring the amber light). The respondent had previous convictions for minor driving offences committed more than a decade earlier. The sentencing Judge imposed a head sentence of 30 months with a non-parole period of 15 months. On appeal, the sentence was not disturbed except to increase the period of licence disqualification from seven years to 12 years. 40 In Wooldridge, the appellant pleaded guilty to four counts of causing death by dangerous driving and one count of causing serious harm by dangerous driving. He was sentenced, at first instance, to four years and two months imprisonment with a non-parole period of two years. He was also disqualified from holding or obtaining a driver’s licence for a period of 10 years. In that matter, the appellant’s vehicle collided with another when the appellant entered a T-junction intersection whilst looking at the Global Positioning System (GPS) device in his vehicle. On appeal, the appellant complained, inter alia, that the sentence imposed was manifestly excessive. In allowing the appeal Gray ACJ, Peek and Nicholson JJ said:12 For the reasons which follow, the present case is one that, for a single offence, warrants a substantially “lesser sentence” within the Payne framework described above. When regard is had to the purposes of punishment and the objectives of sentencing, the starting point for one count of causing death by dangerous driving by this appellant, in the circumstances of this matter, should be no higher than two and a half years imprisonment. The starting point for the fifth count of causing serious harm should be no higher than 18 months. 41 The appellant was subsequently re-sentenced to a total sentence for the five offences of three years, one month and one week imprisonment. A non-parole period of one year, five months and one week was fixed. The sentence was suspended. The appellant was also disqualified from holding or obtaining a driver’s licence for 35 years. 42 In the present case, the appellant submits that the dangerous driving can be characterised as being the appellant’s gross inattention arising from his misunderstanding that the signal activated by the truck driver was an indication that it was safe to overtake. 43 The appellant also relies on R v Henderson13 where this Court accepted the reasoning of the Victorian Court of Appeal in Spanjol v The Queen14 (‘Spanjol’), which was summarised in Arpaci v The Queen15 as standing for two propositions.16 They are: first, that an offender’s responsibility and moral culpability may be moderated where it is demonstrated that some other person (whether or not the victim) and/or some external circumstances was partly responsible for the offender’s conduct; and secondly, where it is established that there was an 12 R v Wooldridge (2015) 123 SASR 422 at [54] per Gray ACJ, Peek and Nicholson JJ. 13 (2023) 104 MVR 68. 14 (2016) 55 VR 350. 15 (2020) 91 MVR 414. 16 Arpaci v The Queen (2020) 91 MVR 414 at [264] per Kaye JA (with whom Maxwell P agreed) citing Spanjol v The Queen (2016) 55 VR 350 at [5], [40]-[46] per Maxwell P, Redlich and McLeish JJA. -- 10 of 16 -- [2024] SASCA 11 The Court 9 additional factor, outside of the offender’s control, which was a material cause of the accident, that circumstance should ordinarily be taken into account in mitigation of sentence. 44 The appellant contends that the truck driver activating his indicators was an ‘external circumstance’ of the sort contemplated by the first proposition in Spanjol. The appellant submits that the appellant had a low level of moral culpability as, but for this external circumstance, it is unlikely he would have attempted to overtake the semi-trailer causing the collision. 45 The appellant contends that this case warrants a substantially ‘lesser sentence’ (as explained in Payne) given the driving was not attended by any aggravating features, his low level of moral culpability and favourable personal circumstances. Accordingly, the sentencing Judge imposed a manifestly excessive sentence by finding there was not good reason to suspend the sentence, or, in the alternative, declining to order it be served on home detention. Consideration 46 The starting point for this Court in determining whether the sentence was manifestly excessive is a consideration of the objective seriousness of the offending. Each of the three offences to which the appellant pleaded guilty alleged that he drove in a manner dangerous to the public. Whether driving is dangerous to the public involves the application of an ‘objective standard’ which is ‘impersonal in the sense that it does not vary with individuals, and it is universal in the sense that it is applicable in the case of all persons who drive motor vehicles.’17 As to what conduct constitutes dangerous driving, ‘there must be some feature which is identified not as a want of care but which subjects the public to some risk over and above that ordinarily associated with the driving of a motor vehicle’.18 47 The offence of causing death by dangerous driving attracts a maximum penalty of imprisonment for 15 years together with a mandatory minimum licence disqualification of 10 years. It is an offence of gravity as it involves the loss of human life. The consequences of a person’s dangerous driving are often profound, leading to irreversible harm and suffering. In this instance, two lives were lost and another individual seriously injured, causing terrible distress to their families and loved ones. 48 Contrary to the appellant’s submissions, his offending did not fall at the lower end of the scale of seriousness for this type of offence. It is to be accepted that the appellant’s offending did not involve any circumstances which would render him guilty of the aggravated form of the offences, such as alcohol or drug intoxication. Nor was the appellant disqualified from driving at the relevant time or driving in 17 R v Coventry (1938) 59 CLR 633 at 638 per Latham CJ, Rich, Dixon and McTiernan JJ. 18 Jiminez v The Queen (1992) 173 CLR 572 at 579 per Mason CJ, Brenna, Deane, Dawson, Toohey and Gaudron JJ. -- 11 of 16 -- [2024] SASCA 11 The Court 10 contravention of any court order. However, there were other objectively serious features to the offending. The appellant was travelling too close to the rear of the semi-trailer to be able to have an effective field of vision or to properly appreciate that the driver had activated both indicators (hazard lights). He attempted to overtake the semi-trailer by crossing an unbroken white line (in breach of the Australian Road Rules) at a section of the road approaching a crest which obscured any view of oncoming traffic on the other side of the crest. Any attempt to overtake a semi-trailer would necessitate the appellant driving on the opposite side of the road, at speed, for an extended period. 49 The appellant’s dangerous driving cannot properly be characterised as constituting ‘gross inattention’. Rather, the appellant made a series of deliberate decisions. These commenced with the decision to travel too close to the rear of the semi-trailer, with the consequence that he did not have an effective field of vision. With his vision obscured, the appellant attempted to overtake a lengthy semi-trailer at a point where a crest obscured his view of oncoming traffic. Finally, the appellant drove across an unbroken white line, contrary to the road rules. Thus, it was not gross inattention but a number of deliberate decisions which led to unlawfully overtaking the semi-trailer in perilous circumstances that caused a fatal collision in which two lives were lost and a third person was seriously injured. Accordingly, the dangerous driving in this case can be clearly distinguished from the facts in Wooldridge and Van Der Heyden. 50 The principles enunciated in Spanjol have no application to this matter. The truck driver’s decision to activate his hazard lights was not, as contended by the appellant, an ‘external circumstance’ partly responsible for his dangerous driving. The truck driver activated his hazard lights, not a single indicator, to warn the appellant it was dangerous to overtake. The appellant accepted that he only saw the right-hand indicator and thereby misunderstood the signal given to him by the truck driver. It was the appellant’s action in traveling too close to the semi-trailer, coupled with his inattention to the surrounding circumstances, which led him to misunderstand the truck driver’s signal, and decide to attempt to overtake the semi-trailer. This is not an ‘external circumstance’ partly responsible for the appellant’s driving which is capable of reducing his responsibility for the collision or lowering his moral culpability. 51 The appellant did not have a low level of moral culpability. He had the benefit of the unbroken white line to indicate that it was unsafe to overtake on that section of the road. It must have been apparent to him that he was driving up an incline with the obvious attendant risk that he could not see vehicles coming in the opposite direction, on the opposite side of the crest. He was also familiar with the road. He attempted to overtake a B-double semi-trailer in circumstances that he would be travelling, at speed, on the opposite side of the road for a relatively extended period of time given the length of the semi-trailer. By deciding to -- 12 of 16 -- [2024] SASCA 11 The Court 11 overtake in those circumstances, he ‘abandoned responsibility for his own conduct’.19 52 For these reasons, we consider that the appellant’s offending was a serious example of three basic offences of causing death or serious harm by dangerous driving. 53 Turning to the question of suspension, pursuant to s 96(1) of the Sentencing Act 2017, a sentence of imprisonment may be suspended if a sentencing court ‘thinks that good reason exists for doing so’. In Wessling v Police,20 and R v O’Toole,21 it was said that the relevant test in determining whether to suspend a sentence involves a consideration of only one issue, namely whether, having regard to all the relevant sentencing considerations, there is good reason to suspend. 54 There were features of the appellant’s personal circumstances that were undoubtedly favourable. He had an excellent work history. He had ultimately pleaded guilty and expressed his remorse for the offending. He was 74 years old at the time of sentence and while he had relevant antecedents, his prospects of rehabilitation were positive, and he was at low risk of re-offending. 55 Additionally, there were aspects of his personal history which excited sympathy. He had suffered during his tour of Vietnam and had compromised mental health as a result. By reason of PTSD, he would find incarceration more difficult than a person who did not suffer from this mental health condition. 56 His Honour expressly referred to all relevant mitigating factors. 57 Notwithstanding the appellant’s favourable personal circumstances, and for the reasons already outlined, this was a serious example of the three basic offences of causing death and serious harm by dangerous driving. It was not a case which involved a ‘relatively low level of culpability’22 nor was the collision caused by gross inattention or carelessness. Rather, the appellant made a series of deliberate decisions culminating in the decision to overtake in breach of the road rules and in obviously perilous circumstances. 58 Further, as the sentencing Judge expressly said in his remarks, general deterrence must be emphasised when sentencing for offences of this kind. As is recognised by ss 3 and 4 of the Sentencing Act, it is necessary for sentencing courts to afford paramountcy to the safety of the community as well as have regard to the secondary considerations of deterrence (whether personal or general), 19 R v Whyte (2002) 55 NSWLR 252 at [218], [220], [224], [228] per Spigelman CJ (with whom Mason P, Barr and Bell JJ agreed and McClellan J substantially agreed). 20 (2004) 88 SASR 57 at [26]-[27] per Besanko J, referred to by Doyle J in R v Dell (2016) 126 SASR 571 at [44] (with whom Kelly and Parker JJ agreed). 21 [2013] SASCFC 18 at [50] per Peek J (with whom Sulan J agreed), referred to by Doyle J in R v Dell (2016) 126 SASR 571 at [44] per (with whom Kelly and Parker JJ agreed). 22 R v Payne (2004) 89 SASR 49 at [72] per Doyle CJ, Nyland, Sulan, Anderson and Mullighan JJ. -- 13 of 16 -- [2024] SASCA 11 The Court 12 denunciation and punishment. The purposes expressed in ss 3 and 4 are interrelated and must be considered as a whole rather than separate from each other. The primary purpose of sentencing, namely the protection of the community, is met by sentences which not only act as a personal deterrent, but also by sentences which serve the purposes of general deterrence.23 59 We are satisfied that the sentencing Judge’s decision not to suspend the sentence was not ‘plainly unjust’. 60 As to the question of home detention, s 71 of the Sentencing Act empowers a court to order home detention where: a sentence of imprisonment has been imposed; the sentence is not to be suspended; and the court considers the defendant to be a suitable person to serve the sentence on home detention. Certain offences and types of offenders are expressly excluded from the home detention regime. In the present case, the sentencing Judge was not legislatively precluded from making a home detention order. 61 Section 71(2)(a) provides that a home detention order must not be made if the court considers that the making of such an order would (or may) affect public confidence in the administration of justice. 62 The determination of whether to order a sentence be served on home detention is a two-stage process. As this Court said in Tammaro v The King:24 The first stage involves an inquiry as to the suitability of the defendant to serve a sentence on home detention. If the court is satisfied that the defendant is a suitable person to do so, the second stage involves a broader consideration as to whether the court orders that the defendant serve the sentence on home detention. 63 There was no suggestion before the sentencing Judge, nor on appeal, that the appellant was not a ‘suitable person’ to serve his sentence on home detention. The issue was whether the making of such an order would (or may) affect public confidence in the administration of justice. 64 In respect of the second stage of the test, in R v Dell,25 Doyle J said:26 In this respect, it is important to bear in mind that while serving a term of imprisonment on home detention represents a significant entrenchment upon a defendant's ordinary liberty and freedom of movement, and is a more onerous form of punishment than a suspended sentence of imprisonment, the reality is that it is a significantly less onerous form of punishment than a requirement that the defendant serve an immediate term of imprisonment within a prison. The New South Wales authorities in relation to the similar regime for home detention orders that exists in that jurisdiction make this plain. The significance of the less onerous nature of a home detention order is that courts will need to be astute to ensure that the making of such an order — even if it will assist in the 23 R v Stain [2021] SASCA 70 at [50] per Kelly P, Bleby JA and Blue AJA. 24 [2022] SASCA 103 at [16] per David JA and Mazza AJA. 25 (2016) 126 SASR 571. 26 R v Dell (2016) 126 SASR 571 at [56]-[58] per Doyle J (with whom Kelly and Parker JJ agreed). -- 14 of 16 -- [2024] SASCA 11 The Court 13 rehabilitation of the defendant and provide sufficient personal deterrence — does not inappropriately undermine achievement of the objectives of punishment and general deterrence. The ultimate sentence imposed must always be appropriate having regard to the criminality of the conduct involved, and the Court's concern to achieve a level of punishment and general deterrence. The greater the weight to be attached to these objectives in an individual case, the less likely it will be appropriate that there be an order for home detention. It is notable that the legislature has not chosen to circumscribe the Courts' discretion by proscribing a home detention order in respect of any particular category of offence, or in respect of sentences of imprisonment beyond a particular period of length. However, this does not mean that home detention orders will not generally be inappropriate in respect of many types of offences, and in respect of defendants the subject of lengthy terms of imprisonment. To the contrary, there will be many cases in which the nature of the offending is such that the need to ensure achievement of the broader objectives of sentencing will for practical purposes foreclose any exercise of the discretion in favour of home detention. The length of the head sentence that has been imposed will often provide some indication of the weight that it is necessary to attach to the objectives I have mentioned. (citations omitted) 65 A sentence for the offence of causing death by dangerous driving must ensure that the objectives of punishment, denunciation and general deterrence are properly reflected in the sentence. Accordingly, in sentencing for matters of this kind, an order for home detention is rare.27 66 Further, the terms of s 71(2)(a) leave little scope, if any, for an order to serve a lengthy sentence on home detention.28 Where the offending constitutes a ‘serious offence against the person’ and warrants a sentence of four and a half years’ imprisonment with a non-parole period of three years, seven months and seven days, it would be a rare case where it was not too serious to admit of home detention. That is so irrespective of the fact the appellant has not committed the aggravated form of the offences and notwithstanding his favourable personal circumstances. 67 The sentencing Judge, when determining whether to order that the sentence be served on home detention, engaged in the requisite two-stage process. His Honour found that it was not appropriate to order that the sentence be served on home detention because the appellant’s offending was too serious. Bearing in mind the objective seriousness of the offending, and notwithstanding his favourable personal circumstances, we consider that a home detention order in the circumstances of this case would not meet the deterrent and denunciatory purposes of sentence. It follows that we are not satisfied that it was plainly unjust for the sentencing Judge to decline to order the sentence be served on home detention. 68 The appellant advanced two further matters during the hearing in support of his contention that the sentence was manifestly excessive. First, the appellant 27 R v Henderson (2023) 104 MVR 68 at [116] per Nicholson J. 28 R v Henderson (2023) 104 MVR 68 at [121]-[122] per Nicholson J. -- 15 of 16 -- [2024] SASCA 11 The Court 14 submits that he is unable to receive appropriate treatment for his PTSD while incarcerated. Prior to being taken into custody, the appellant was prescribed Temazepam and Panadeine Forte for pain relief and to treat his PTSD. The appellant asserts that since being remanded in custody, he has not been provided with his medication, nor can he continue his counselling sessions with Dr Ewer. This factual assertion was not made out. At the appeal hearing, counsel for the appellant tendered a mental health summary.29 A plain reading of that summary tends to suggest that the appellant has not seen the need to engage with the Prison Health Services. It also reveals that the Prison Health Service is aware of the appellant’s medical conditions and is providing him with appropriate medication, albeit different to the medication he was receiving in the community. 69 Secondly, the appellant submits that the licence disqualification of 10 years, combined with the length of the immediate custodial sentence, resulted in a manifestly excessive sentence. The minimum period of licence disqualification for each offence was ordered to be served concurrently. In this way, the sentencing Judge accorded the appellant some leniency. While it is to be accepted (as the sentencing Judge did) that the licence disqualification of itself will be a significant punishment to the appellant because of his semi-rural residence, we do not consider that, in combination, the length of the immediate term of imprisonment and the licence disqualification have resulted in a manifestly excessive sentence. Conclusion 70 We grant permission to appeal but dismiss the appeal. 29 Appeal Exhibit A1 – Mental Health Summary. -- 16 of 16 --