THE KING v CAMPBELL HENDERSON [2023] SASCA 42

On Appeal from DISTRICT COURT OF SOUTH AUSTRALIA (HER HONOUR JUDGE FULLER) DCCRM-21-1946 Appellant: THE KING Counsel: MR M HINTON KC - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) Respondent: CAMPBELL HENDERSON Counsel: MR J MARCUS - Solicitor: MEAD ROBSON STEELE Hearing Date/s: 08/02/2023 File No/s: SCCRM-22-005820 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. R v HENDERSON [2023] SASCA 42 Judgment of the Court of Appeal (The Honourable President Livesey, the Honourable Justice David and the Honourable Justice Nicholson) 20 April 2023 CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN - PRINCIPLES APPLIED BY APPELLATE COURT TO CROWN APPEALS CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - CULPABLE OR DANGEROUS DRIVING CAUSING DEATH OR BODILY HARM Crown appeal against sentence. The respondent pleaded guilty to one count of aggravated causing death by dangerous driving. The sentencing Judge imposed a term of imprisonment for four years, three months and nine days, after allowing a five per cent discount for the plea from a starting point of four years and six months. A non-parole period of three years, five months and one day was fixed. The sentencing Judge ordered that the prison sentence was to be served on home detention. The sentencing Judge also imposed a licence disqualification for 13 years after allowing for one year of licence disqualification that had already been served. The Director of Public Prosecutions (SA) sought permission to appeal on the ground of manifest inadequacy. -- 1 of 39 -- The offending occurred on the afternoon of 5 April 2021. The respondent and the victim had been drinking heavily. The respondent and the victim each drove the car with the other as front seat passenger on two occasions, following which the respondent drove on a fifth occasion. On the last occasion, the respondent lost control of the vehicle, understeered to the opposite side of the road and collided with a tree. The victim suffered facial and chest injuries and died at the scene. The respondent was found to have an estimated blood alcohol concentration of 0.193 per cent alcohol by volume at the time of the accident. Held (Livesey P and David JA) granting permission to appeal and allowing the appeal: 1. The sentence imposed by the sentencing judge was manifestly inadequate. 2. It is important to ensure an appropriate degree of uniformity of sentencing, as well as to maintain adequate sentencing standards, for offending of this kind. 3. The very serious nature of the offending, combined with the very marked extent to which the sentence fell short of the appropriate range, demonstrate that permission should be granted notwithstanding the undoubted double jeopardy, vexation and distress caused to the respondent. There are strong policy reasons which warrant intervention in this case. 4. The sentence is set aside and the respondent is resentenced to a term of imprisonment of six years, seven months, and 25 days with a non-parole period of five years, three months, and 26 days. Held (Nicholson AJA) dissenting and refusing leave to appeal: 5. The sentence was manifestly inadequate. 6. However, the public policy considerations in favour of avoiding the respondent from being seriously twice vexed are such that permission to appeal should be refused. Criminal Law Consolidation Act 1935 (SA) s 19A(1); Criminal Law (Sentencing) Act 1988 (SA); Criminal Procedure Act 1921 (SA) ss 150, 157; Legislation Interpretation Act 2021 (SA) s 19; Sentencing Act 2017 (SA) ss 47(5)(d), 69(1), 71(1); Road Traffic Act 1961 (SA) s 169B, referred to. Arpaci v The Queen [2020] VSCA 81; Bubner v The Queen [2022] SASCA 27; Cullen v The Queen [1949] SCR 658; Cumberland v The Queen [2020] HCA 21; Disorganized Developments Pty Ltd & Ors The State of South Australia [2022] SASCA 6; DPP v Currie [2019] VCC 1795; DPP v Kandel [2021] VCC 2183; DPP v Karazisis (2010) VSCA 350; Everett v The Queen (1994) 181 CLR 295; George v The Queen (2017) 80 MVR 436; Griffiths v The Queen (1977) 137 CLR 293; Guseli v The Queen [2019] VSCA 29; Hackett v The Queen [2021] SASCA 32; Hili v The Queen (2010) 242 CLR 520; Lacey v Attorney-General (Qld) (2011) 242 CLR 573; Munda v Western Australia (2013) 249 CLR 600; Papagelou v The Queen [2022] VSCA 53; Peel v The Queen (1971) 125 CLR 447; Police v Cadd (1997) 69 SASR 150; R v Akol [2020] SASFC 75; R v Amos (a pseudonym) [2021] SASCA 126; R v Butler [2022] SASCA 112; R v Buttigieg [2020] SASCFC 38; R v CAB [2020] SASCFC 33; R v Camarhina [2018] SASCFC 118; R v Ceruto [2014] SASCFC 5; R v Dell [2016] SASCFC 156; R v Farrer [2017] SASCFC 27; R v Grundy [2021] SASCA 4; R v Harkin [2011] SASCFC 24; R v Kelly [2023] SASCA 22; R v Lean (2017) 128 SASR 451; R v Lumsden [2020] SASCFC 3; R v Mangelsdorf (1995) 66 SASR 60; R v McPartland & Polkinghorne [2014] SASCFC 84; R v Morse (1979) 23 SASR 98; R v Nemer [2003] SASC 375; R v Osenkowski (1982) 30 SASR 212; R v Payne (2004) 89 SASR 49 ; R v R, AW (2012) 113 SASR 179; R v Siozios (2004) 236 LSJS 88; R v Walden (1993) 19 MVR 193; R v Watkins [2013] SASCFC 150; R v Wooldridge (2004) 89 SASR 49; R v Yaroslavceff [2022] SASCA 123; Skinner v The King (1913) 16 CLR 336; Spanjol v The Queen [2016] VSCA 317; The Queen v Drewett (1983) 35 SASR 344; The Queen v Wilton (1981) 28 SASR 362; Whittaker v The King (1928) 41 CLR 230; Wong v The Queen (2001) 207 CLR 584, considered. -- 2 of 39 -- R v HENDERSON [2023] SASCA 42 Court of Appeal – Criminal: Livesey P, David JA and Nicholson AJA LIVESEY P AND DAVID JA. Introduction 1 This is an application for permission to appeal against sentence by the Director of Public Prosecutions (SA) (the DPP). The respondent 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), for which the maximum penalty is life imprisonment and disqualification from holding or obtaining a drivers licence for 10 years or such longer period as the court orders. 2 The circumstance of aggravation pleaded was that there was present in the respondent’s blood a concentration of alcohol of .08 grams or more of alcohol in 100 millilitres of blood. 3 The sentencing judge commenced with a notional starting point of four years and six months’ imprisonment. After allowing a reduction for the guilty plea of five per cent, the sentence became four years, three months and nine days. The sentencing judge fixed a non-parole period of three years, five months and one day,1 and disqualified the respondent from holding or obtaining a driver’s licence for 13 years. 4 The sentencing Judge ordered that the respondent serve the sentence of imprisonment on home detention with conditions. 5 The DPP seeks permission to appeal on the ground that the head sentence is manifestly inadequate and that it was inappropriate to order that the sentence be served on home detention. For the following reasons, we would grant permission to appeal and re-sentence the respondent. Manifest inadequacy and permission to appeal 6 We gratefully adopt the recitation by Nicholson AJA of the circumstances of the offending and the offender. We add to these only so as to explain our reasoning. 7 We agree with the conclusion by Nicholson AJA that the sentence was manifestly inadequate. We agree with and respectfully adopt his Honour’s reasons as to why it was in the circumstances of this case inappropriate to order home detention. 1 Pursuant to s 47(5)(d) of the Sentencing Act 2017 (SA), this was a serious offence against the person, and the sentencing judge was required to fix a non-parole period of at least four-fifths of the head sentence. -- 3 of 39 -- [2023] SASCA 42 Livesey P and David JA 2 8 We do not agree that the DPP should be refused permission to appeal. In our opinion, the DPP should be granted permission to appeal. The sentence was so low that it fails to maintain adequate standards of punishment for an offence where the dangerous driving is the product of a combination of a high level of intoxication, excessive speed and what is often described as “hoon” driving. It is necessary that this Court intervene to maintain public confidence in the administration of justice. The decision in R v Walden 9 We agree with Nicholson AJA that the approach adopted in R v Walden should not be followed in this State.2 Indeed, it may be doubted whether the conduct of the victim in that case – voluntarily traveling as a passenger with an intoxicated driver without wearing a seatbelt – could be regarded as involvement in the offender’s driving, or as permitting “a somewhat less serious view” to be taken of the offending.3 10 In this case it cannot properly be said that the respondent’s offending was mitigated or qualified where it was not established that the conduct of the deceased operated as a cause of the dangerous driving or of the deceased’s death.4 Similarly, it was not established that these were caused by anyone or anything else. 11 Whatever might be said about the conduct and implicit encouragement of the deceased victim, it did not mitigate the respondent’s offending. The respondent remained responsible for his decision to drive whilst heavily intoxicated. The respondent remained at the wheel of his vehicle and responsible for driving in a manner which was seriously dangerous. The circumstances of the offending 12 The offending was objectively very serious. The respondent was drinking with his neighbour (the deceased), the deceased’s wife, and another friend, Mr Bubner, at the respondent’s home in a town in the Adelaide Hills. During the late afternoon, the respondent and the deceased took turns driving the respondent’s vehicle around the town. The respondent and the deceased each drove the vehicle on two occasions. On one of those occasions, the deceased’s wife was a passenger in the vehicle when the respondent accelerated through an intersection and started to lose control of the vehicle. He continued to drive at speed and almost collided with a stobie pole. The deceased’s wife was scared and got out of the vehicle. 13 Local residents and neighbours observed the vehicle shortly before the fatal collision. One resident described the driver of the vehicle as having completed a ‘burn out’, after which he continued to drive around the area. Other witnesses 2 R v Walden (1993) 19 MVR 193. 3 Cf, R v Walden (1993) 19 MVR 193, 194 (King CJ), 199 (Olsson J). 4 DPP v Currie (2019) 87 MVR 340, [47] (The Court). -- 4 of 39 -- [2023] SASCA 42 Livesey P and David JA 3 described the vehicle being driven at speed. One person said that the driver of the vehicle approached a moderate left-hand bend above the speed limit of 80 km/hr. 14 Immediately before the collision, the respondent was driving in a northerly direction along Pyrites Road in the Brukunga area. The deceased was in the front passenger seat. The signed speed limit along the relevant part of Pyrites Road was 80 kilometres per hour. The respondent was travelling at 118 kilometres per hour when he failed to negotiate a sweeping left bend. He lost control and crossed over the solid middle white line, travelling onto the opposite lane, before colliding with a large tree on the other side of the road. 15 Professor White, a pharmacologist, estimated the respondent’s blood alcohol concentration to have been 0.193 mL/L of blood at the time of the fatal collision. 16 The deceased died from facial and chest injuries sustained in the collision. His blood alcohol level at the time of the autopsy was between 0.16 and 0.21. 17 The respondent also suffered multiple injuries as a result of the collision and had no recollection of the collision or the circumstances leading to it. 18 Professor White noted that the respondent’s level of intoxication would have had significant adverse effects on his ability to drive and his manner of driving including: his judgment and decision making; his ability to operate the vehicle to avoid a potential collision; a reduced response time and ability to react in difficult situations occurring on the roadway. 19 It is evident from this summary of the factual circumstances of the offending that there were several egregious features to it. 1. First, the dangerous driving was not an isolated occasion but occurred in the context of two earlier occasions of similarly dangerous driving by the respondent. Significantly, on one of those occasions the respondent narrowly avoided hitting a stobie pole. The deceased’s wife said she was scared and demanded to get out of the vehicle. That incident should have provided a warning to the respondent. Yet, he persisted with his conduct in driving dangerously and at speed with a passenger. 2. Secondly, the appellant was grossly intoxicated and had a blood alcohol content of almost four times the legal limit. 3. Thirdly, the respondent was driving at excessive speed and almost forty kilometres per hour above the speed limit. 4. Fourthly, the respondent’s driving was not necessary for any legitimate purpose; rather, it was undertaken for amusement. 20 For these reasons, the offending was at the upper end of the scale of objective seriousness. -- 5 of 39 -- [2023] SASCA 42 Livesey P and David JA 4 The circumstances of the offender 21 In relation to the respondent’s personal circumstances, he was 29 years old at the time of sentence. He had held a driver’s licence for 13 years. He had no prior convictions and fell to be sentenced as a first offender. 22 The respondent has a good employment history, although it was interrupted due to a diagnosis of Crohns disease. Numerous character references were tendered which spoke of his good work ethic and positive attributes. He has much support from his family and community. 23 It is to be accepted that the respondent is remorseful for his offending, and feels deeply the loss of the deceased, his best friend, and the understandably estranged relationship with the deceased’s family. 24 The respondent was also badly injured in the collision, and continues to suffer from cognitive impairment and ongoing pain. He requires the aid of a stick to walk. Since this offending, he has also been diagnosed with depression, anxiety, and post-traumatic stress disorder. 25 We agree with Nicholson AJA that the respondent’s positive personal circumstances limited the need for the sentencing exercise to focus on personal deterrence and provided some basis for leniency in sentence. Manifest inadequacy 26 The principles to be applied in considering the question of whether a sentence is manifestly inadequate are well-established. In Hili v The Queen the High Court said:5 As was said in Dinsdale v The Queen, “[m]anifest inadequacy of sentence, like manifest excess, is a conclusion”. And, as the plurality pointed out in Wong, appellate intervention on the ground that a sentence is manifestly excessive or manifestly inadequate “is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases”. Rather, as the plurality went on to say in Wong, “[i]ntervention is warranted only where the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons”. (Citations omitted.) 27 The Court explained that “…what reveals manifest excess, or inadequacy, of sentence is consideration of all of the matters that are relevant to fixing a sentence”.6 An assessment as to whether a sentence is manifestly excessive or inadequate requires a consideration of all the matters relevant to the sentencing exercise including the maximum penalty for the relevant offence, where the objective circumstances of the offending sit in the scale of seriousness of crimes 5 Hili v The Queen (2010) 242 CLR 520 at [59] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ. 6 Hili v The Queen (2010) 242 CLR 520, [60] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ). -- 6 of 39 -- [2023] SASCA 42 Livesey P and David JA 5 of that type, and the personal circumstances of the offender. Ultimately, manifest excess or inadequacy is a conclusion and may not permit of “lengthy exposition”.7 28 The relevant sentencing considerations for the offence of cause death by dangerous driving were reviewed in R v Wooldridge.8 As was explained in R v Akol, the introduction of a maximum sentence of life imprisonment for the offence of aggravated cause death by dangerous driving represented a significant change in Parliament’s view about the seriousness of this type of offending, “particularly where it involves a combination of any or all of speed, drugs and alcohol”.9 As a result, “sentences for the offence of aggravated cause death by dangerous driving have increased in the 15 years or so since the introduction of a maximum sentence of life imprisonment”.10 29 Bearing in mind the guidance provided by the recent decisions in R v Akol11 and Bubner v The Queen,12 the starting point of four years and six months is manifestly inadequate and outside the permissible range for this offence. 30 The circumstances of the offending placed it at the upper end of the scale of objective seriousness. It was attended by four very serious features: it was not isolated, the respondent was grossly intoxicated, driving at excessive speed and doing so only for his own amusement. Notwithstanding the respondent’s positive personal circumstances, including that he is unlikely to re-offend, the extra-curial punishment he continues to suffer by reason of his injuries and mental health, as well as the lengthy licence disqualification imposed, we are satisfied that the head sentence was significantly below the permissible range. 31 Given the serious circumstances of this case, a home detention order failed to ensure that the sentencing objectives of condign punishment and general deterrence were met. A home detention order would undoubtedly “affect public confidence in the administration of justice.” 32 We are satisfied that the sentence as a whole is manifestly inadequate by reason of the head sentence and the order that it be served on home detention. Crown appeals: permission to appeal against sentence 33 Despite concluding that the DPP has established error, and that the sentence is manifestly inadequate, it does not follow that the DPP should be granted permission to appeal against sentence. 34 The restraint exercised in connection with whether to grant permission to the prosecution to appeal sentence under ss 150 and 157 of the Criminal Procedure 7 Hili v The Queen (2010) 242 CLR 520, [59] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ). 8 R v Wooldridge (2004) 89 SASR 49. 9 R v Akol (2020) 284 A Crim R 246, [64] (Livesey J, with whom Nicholson and Bleby JJ agreed). 10 R v Akol (2020) 284 A Crim R 246, [100] (Livesey J, with whom Nicholson and Bleby JJ agreed). 11 R v Akol (2020) 284 A Crim R 246. 12 Bubner v The Queen [2022] SASCA 27. -- 7 of 39 -- [2023] SASCA 42 Livesey P and David JA 6 Act 1921 (SA) reflects the long-standing concern that these appeals put in jeopardy “the vested interest” that a defendant has in freedom which is “subject to the sentence of the primary tribunal”,13 for they cut across “time-honoured concepts of criminal administration”.14 That a prosecution appeal exposes the defendant to a form of double jeopardy is an important consideration.15 The determination as to whether to grant the prosecution permission to appeal engages questions of high public policy.16 That is a “stringent barrier” to the grant of permission to appeal.17 35 The appeal court cannot intervene merely because it would have exercised the sentencing discretion differently,18 and intervention is conditioned on the identification of a material error in the sentence under review.19 Nonetheless, mere error or disparity in sentence does not justify appellate intervention on a prosecution appeal.20 Prosecution appeals raise considerations additional to simply determining whether the sentencing judge made a material error in the exercise of sentencing discretion.21 36 The grant of permission for a prosecution appeal is reserved for those cases where it is necessary for the appeal court to determine a matter of principle, to establish or maintain adequate sentencing standards or to correct idiosyncratic views expressed by individual judges as to offending or sentencing.22 Consistently with the proper purpose of a prosecution appeal, it will be appropriate to grant permission where the sentence is so manifestly inadequate that it amounts to an error of principle.23 37 There is an inevitable tension between recognising the interest the community has in ensuring the imposition and maintenance of proper sentencing 13 Whittaker v The King (1928) 41 CLR 230, 248 (Isaacs J). See also Skinner v The King (1913) 16 CLR 336, 340 (Barton A-CJ). 14 Peel v The Queen (1971) 125 CLR 447, 452 (Barwick CJ). 15 Everett v The Queen (1994) 181 CLR 295, 299 (Brennan, Deane, Dawson and Gaudron JJ); Bui v Director of Public Prosecutions (2012) 244 CLR 638, [12]-[16] (The Court); and R v R, AW (2012) 113 SASR 179, [35] (Peek J, with whom Nyland J agreed). See generally Pearce v The Queen (1998) 194 CLR 610, [9]-[14] (McHugh, Hayne and Callinan JJ). 16 Lacey v Attorney-General (Qld) (2011) 242 CLR 573, [15]-[20] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ). 17 Everett v The Queen (1994) 181 CLR 295, 305 (McHugh J). 18 R v Butler [2022] SASCA 112, [41] (David JA and Mazza AJA). 19 Munda v Western Australia (2013) 249 CLR 600, [34] (French CJ, Hayne, Crennan, Kiefel, Gageler, and Keane JJ). 20 The Queen v Drewett (1983) 35 SASR 344, 345-346 (King CJ). 21 The Queen v Wilton (1981) 28 SASR 362, 363 (King CJ). See also R v Mangelsdorf (1995) 66 SASR 60, 62-63 (Doyle CJ, with whom Prior and Williams JJ agreed). 22 R v Osenkowski (1982) 30 SASR 212, 212-213 (King CJ); R v Payne (2004) 89 SASR 49; Munda v Western Australia (2013) 249 CLR 600, [87] (Bell J). 23 Everett v The Queen (1994) 181 CLR 295, 300 (Brennan, Deane, Dawson and Gaudron JJ) citing Griffiths v The Queen (1977) 137 CLR 293, 310 (Barwick CJ). See Munda v Western Australia (2013) 249 CLR 600, [76] (French CJ, Hayne, Crennan, Kiefel, Gageler, and Keane JJ): where the sentence was manifestly inadequate, the residual discretion to dismiss ought not be exercised because, amongst other considerations, “to decline to intervene would have been to perpetuate a manifest injustice”. -- 8 of 39 -- [2023] SASCA 42 Livesey P and David JA 7 standards, and recognising the interest the defendant has in avoiding being twice vexed by the coercive power of the State.24 38 In addition, prosecution appeals should not be allowed to unduly circumscribe the sentencing discretion of judges.25 An important feature of sentencing for criminal offending is the necessity to recognise and respect that sentencing entails individualised justice.26 It is fundamental to the administration of the criminal law that judges at first instance be allowed as much flexibility in sentencing as is consistent with the common law and statutory regime that applies. 39 There will often be a question of degree involved when determining whether a sentence is so inadequate that intervention is warranted.27 The appeal court must evaluate the extent to which the sentence is affected by error, and that may include the extent to which the sentence is manifestly inadequate. That requires an evaluation of the sentence as a whole, not merely one element of the sentence under review.28 Permission to appeal is reserved for cases where it is necessary to correct a sentence which is so disproportionate to the seriousness of the offending that it undermines public confidence in the administration of justice.29 40 When a sentence is adjudged to be so disproportionate to the seriousness of the offending and the circumstances of the offender that it undermines public confidence in the administration of justice, permission is granted so as to ensure that appropriate standards of penalty are imposed and that public confidence in the administration of justice is maintained.30 41 The High Court has consistently said that permission to appeal sentence will only be granted to the prosecution in “rare and exceptional” cases.31 42 Whilst it may be accepted that determining whether a case is “exceptional” requires a qualitative analysis, the determination of what is “rare” involves an analysis that is comparative, though not merely arithmetic. A case cannot properly be said to be rare if it is common or frequent.32 In important respects the analysis is evaluative. Having said that, the number of cases in which the prosecution is granted permission to appeal against sentence will depend on a range of 24 Cullen v The King [1949] SCR 658, 668 (Rand J); R v Lean (2017) 128 SASR 451, [4] (Hinton J, with whom Stanley and Nicholson JJ agreed); R v CAB [2020] SASCFC 33 at [8]-[9], [84]-[86] (Livesey J, with whom Kourakis CJ and Doyle J agreed), R v Buttigieg (2020) 352 FLR 170, [47] (Lovell J, with whom Kourakis CJ and Nicholson J agreed); R v Amos (A Pseudonym) [2021] SASCA 126, [38]. 25 R v Osenkowski (1982) 30 SASR 212, 212 (King CJ). 26 Hackett v The Queen [2021] SASCA 32, [8] (The Court) and the cases there cited. 27 R v Nemer (2003) 87 SASR 168, [24] (Doyle CJ). 28 R v Yaroslavceff [2022] SASCA 123, [32] (Livesey P and David JA). 29 Rather than whether it would “shock the public conscience”, R v Siozios (2004) 236 LSJS 88, [20]-[21] (Perry J, with whom Doyle CJ agreed). 30 R v Nemer (2003) 87 SASR 168, 172, [24] (Doyle CJ). 31 Everett v The Queen (1994) 181 CLR 295, 299 (Brennan, Deane, Dawson and Gaudron JJ). 32 Police v Cadd (1997) 69 SASR 150, 159 (Doyle CJ) these restrictions “may make it difficult for a Court of Criminal Appeal of a State to perform its supervisory function…[and] do not apply … to an appeal against a non-custodial sentence”. Cf, R v Yaroslavceff [2022] SASCA 123, [71] (Doyle JA). -- 9 of 39 -- [2023] SASCA 42 Livesey P and David JA 8 considerations, including the number of cases in which material errors were made by sentencing courts which have in turn been made the subject of applications for permission to appeal. Certainly, to say that the prosecution will only be granted permission to appeal against sentence in “rare and exceptional” cases does not suggest that most applications made by the prosecution should fail. 43 The requirement that permission to appeal sentence will only be granted to the prosecution in “rare and exceptional” cases reinforces both the public policy features which must be observed as well as the exceptional nature of the course the appeal court is being invited to take.33 Indeed, it identifies whether in a particular case there exist strong reasons of public policy which require that permission to appeal be granted notwithstanding the public interest in ensuring that a defendant is not twice vexed by the State. 44 The analysis required of the appeal court when considering an application by the prosecution for permission to appeal against sentence will often be aided by recognised features which inform, but do not determine, whether to grant permission to appeal. The lack of finality and the vexation imposed on a defendant are important features: the need for finality in the sentencing process and ensuring that a defendant is not twice vexed tend against the grant of permission to appeal. Nonetheless, the need for reasonable consistency in decision-making on sentence may tend in favour of granting permission to appeal:34 The outcome of discretionary decision-making can never be uniform, but it ought to depend as little as possible upon the identity of the judge who happens to hear the case. Like cases should be treated in like manner. The administration of criminal justice works as a system; not merely as a multiplicity of unconnected single instances. It should be systematically fair, and that involves, amongst other things, reasonable consistency. 45 Other recognised features bearing on whether to grant permission include the nature and extent of the error made, whether the appeal proposed by the prosecution is or is not inconsistent with the approach the prosecution took before the sentencing court,35 whether the prosecution has engaged in delay,36 and whether the defendant has been released from custody (including on a suspended sentence or a bond) and has undergone rehabilitative treatment but is now being vexed with the threat of incarceration.37 33 Everett v The Queen (1994) 181 CLR 295, 305 (McHugh J). 34 Wong v The Queen (2001) 207 CLR 584, 591 [6] (Gleeson CJ), cited in Munda v Western Australia (2013) 249 CLR 600, [93] (Bell J). See also Police v Cadd (1997) 69 SASR 150, 159 (Doyle CJ), “maintaining an appropriate degree of uniformity of sentencing and maintaining adequate sentences…”. 35 Director of Public Prosecutions v Karazisis (2010) 31 VR 634, 658-660 [115] (Ashley, Redlich and Weinberg JJA, with whom Warren CJ and Maxwell P agreed). 36 Munda v Western Australia (2013) 249 CLR 600, [77] and [90], where the delay of one year was not the fault of the prosecution. 37 Munda v Western Australia (2013) 249 CLR 600, [72]; R v R, AW (2012) 113 SASR 179, [76]-[80] (Peek J, with whom Nyland J agreed). -- 10 of 39 -- [2023] SASCA 42 Livesey P and David JA 9 46 How these various features are evaluated and balanced in any particular case will vary according to the facts and circumstances of that case.38 47 The respondent was sentenced on 16 September 2022. The DPP filed a notice of appeal on 5 October 2022. There was no delay by the DPP in bringing the appeal. The appeal was heard in February 2023. A period of about seven months has elapsed since sentence which is not the fault of either party. 48 An important factor in this case is the evident harshness of sentencing a person to an immediate term of imprisonment when he has been told that he will not be serving his sentence in prison and he has, for the preceding seven months, remained in the community serving his custodial sentence on home detention. 49 Should permission to appeal be granted the respondent will be twice vexed. He will also face a substantial increase in the sentence to be served. It is to be accepted that there are considerations that speak against a grant of permission in this case, as identified by Nicholson AJA. We have not overlooked the harsh consequences of granting permission to appeal. 50 If in that context the only issue was the imposition of a sentence which was manifestly inadequate, it may have been sufficient to say so and otherwise refuse permission to appeal. This case, however, raises additional features. 1. For the reasons earlier indicated, the offending represented a very serious example of aggravated cause death by dangerous driving. 2. In consequence, the sentence is not merely manifestly inadequate and it does not just represent a failure to observe proper sentencing standards. Having regard to the circumstances of the offending and notwithstanding the offender’s favourable personal circumstances, the sentence as a whole is so disproportionately low that it represents an error of principle and it undermines public confidence in the administration of justice. 3. It is important to ensure an appropriate degree of uniformity in sentencing, as well as to maintain adequate sentencing standards for offending of this kind. 4. The very serious nature of the offending combined with the very marked extent to which the sentence fell short of the appropriate range, demonstrate that permission should be granted notwithstanding the undoubted double jeopardy, vexation and distress caused to the respondent. 5. There are accordingly strong policy reasons which require intervention in this case. Recognising that the relevant considerations ultimately require the 38 This case does not require any determination as to whether there remains any “residual discretion” in this State, R v Yaroslavceff [2022] SASCA 123, [34] (Livesey P and David JA), which may require dismissing a prosecution appeal so as to avoid injustice, Cumberland v The Queen (2020) 94 ALJR 656, [4]-[6] (The Court). -- 11 of 39 -- [2023] SASCA 42 Livesey P and David JA 10 grant of permission does not involve a failure to properly apply cases such as Everett v The Queen,39 but rather that “to decline to intervene would have been to perpetuate a manifest injustice”.40 51 Accordingly, we would grant permission to appeal, allow the appeal and re-sentence the respondent. Re-sentencing the respondent 52 Having regard to the circumstances of the offending and the offender, particularly the respondent’s favourable personal circumstances and extra-curial punishment, we would sentence the respondent to a head sentence of seven years. 53 Again, we afford the respondent the full five per cent available on account of his guilty plea, resulting in a head sentence of six years, seven months, and 25 days. A non-parole period of four fifths of the head sentence must be fixed, being five years, three months, and 26 days. 54 We also give the respondent credit of seven months and four days for time spent in custody on home detention.41 The result is a head sentence of six years and 21 days, and a non-parole period of four years, eight months, and 22 days. 55 We impose a licence disqualification for 12 years. 56 The sentence will commence from the date the respondent is taken into custody. Conclusion 57 The DPP should be granted permission to appeal and the appeal should be allowed. 58 The respondent must now serve a sentence of imprisonment, as indicated. 39 Everett v The Queen (1994) 181 CLR 295, 300 (Brennan, Deane, Dawson and Gaudron JJ). 40 See Munda v Western Australia (2013) 249 CLR 600, [76] (French CJ, Hayne, Crennan, Kiefel, Gageler, and Keane JJ): where the sentence was manifestly inadequate, the residual discretion to dismiss ought not be exercised because, amongst other considerations, “to decline to intervene would have been to perpetuate a manifest injustice”. 41 R v Kelly [2023] SASCA 22, [104] (Bleby and David JJA). -- 12 of 39 -- [2023] SASCA 42 Nicholson AJA 11 NICHOLSON AJA. Introduction 59 The Director of Public Prosecutions has sought leave to appeal against a sentence imposed in the District Court on the respondent, Campbell Henderson. After pleading guilty to one count of aggravated causing death by dangerous driving,42 the respondent was sentenced to imprisonment for four years, three months and nine days, after allowing a five per cent discount for the plea from a starting point of four years and six months. A non-parole period of three years, five months and one day was fixed. The sentencing Judge ordered that the prison sentence was to be served on the strict but typical conditions of home detention. 60 After allowing for one year of licence disqualification that had already been served, the Judge disqualified the respondent from driving for 13 years.43 The Judge ordered that this period of suspension was to commence on the day of sentencing, 16 September 2022. It will be necessary in due course to consider the effect of section 169B of the Road Traffic Act 1961 (SA) on the effective length of the suspension and its relevance, if any, to an assessment of the adequacy or otherwise of the sentence as a whole. 61 The Director’s single ground of appeal, should leave be granted, is that of manifest inadequacy. When considering the question of manifest inadequacy, it is the sentence as a whole, that is, the head sentence and non-parole period, the fact that it is to be served on home detention and the length of the disqualification period in toto that must be assessed. The Director contends that the sentence is inadequate in each, and in combination, of two respects, first, as to the length of the head sentence and second, as to the decision to allow the sentence to be served on home detention. The offence committed is one that attracts a mandatory minimum non-parole period of four-fifths of the head sentence.44 The Director makes no complaint about the non-parole period fixed by the Judge other than that, if the sentence were found to be manifestly inadequate and the head sentence were to be increased, it would follow that the non-parole period as fixed would have to be adjusted accordingly. 62 Leave for the prosecution to appeal against sentence will only be granted in rare and exceptional cases. The principle stated by the plurality in Everett v The Queen,45 remains apposite. An appeal by the Crown against sentence has long been accepted in this country as cutting across the time-honoured concepts of criminal administration by putting in jeopardy for the 42 Contrary to subsection 19A(1) of the Criminal Law Consolidation Act 1935 (SA). The subsection provides for a maximum penalty of imprisonment for life with respect to the aggravated offence. The offence was aggravated in this case because the respondent drove with a blood alcohol reading of or in excess of 0.08. 43 Subsection 19A(1) mandates disqualification for a minimum of 10 years with respect to the aggravated offence. 44 Subsection 47(5)(d) of the Sentencing Act 2017 (SA). 45 (1994) 181 CLR 295 at 299 (Brennan, Deane, Dawson and Gaudron JJ). -- 13 of 39 -- [2023] SASCA 42 Nicholson AJA 12 second time the freedom beyond the sentence imposed. That being so, a “court entrusted with the jurisdiction to grant or refuse such leave should give careful and distinct consideration to the question whether the Attorney-General has discharged the onus of persuading it that the circumstances are such as to bring the particular case within the rare category in which a grant of leave to the Attorney-General to appeal against sentence is justified”. (Footnotes omitted) 63 The respondent contends that this is not the rare and exceptional case to which, according to the authorities, the granting of leave is restricted and that, even if the sentence were found to be manifestly inadequate, leave to appeal should be refused. The circumstances of the offending 64 During the afternoon of 5 April 2021, the respondent, his neighbours, Nicholas Peart and Elaine Revi-Peart and another friend, Graeme Bubner, were socialising at the respondent’s home in Brukunga, a small township in the Adelaide Hills. The respondent and Mr Peart had been drinking heavily. 65 At or about 5 o’clock in the afternoon, the respondent and Mr Peart decided to take turns driving each other on circuits around the surrounding streets, although one witness described seeing the respondent’s distinctive yellow Falcon utility as far away as leaving the township of Nairne which is about 4 kilometres from Brukunga. It is common ground that the respondent and Mr Peart each drove the car with the other as front seat passenger on two occasions following which the respondent drove on a fifth occasion at or about 5.25 pm. 66 On this last occasion, the respondent drove in a northerly direction along Pyrites Road. The weather was clear, dry and warm and visibility was good. The respondent failed to negotiate a sweeping left hand bend at a speed of approximately 118 kilometres per hour at a point where the mandated speed limit was 80 kilometres per hour. He lost control of the vehicle, understeered to the opposite side of the road and collided with a tree. The force of the impact with the tree caused a large limb to fall onto and to protrude into the front passenger side of the vehicle. Mr Peart suffered facial and chest injuries and died at the scene. 67 Immediately before the incident, one witness had observed the yellow utility travelling at speed before performing a “burnout”.46 Another two witnesses observed the vehicle drive past them at speed multiple times. Another saw the vehicle approach a moderate left hand bend at a speed above the prescribed 80 kilometres per hour limit. On an earlier occasion, the respondent had driven with Mr Peart’s wife, Elaine, as a passenger. He had accelerated quickly through an intersection, started to lose control but continued at speed and narrowly avoided a stobie pole. Mrs Revi-Peart was scared. 46 In this context I understand a “burnout” to refer to the practice of keeping a vehicle at or close to rest but spinning its wheels to create friction causing the tyres to heat up and smoke. -- 14 of 39 -- [2023] SASCA 42 Nicholson AJA 13 68 The eyewitness accounts provide some indication of the nature of the driving engaged in by both men. However, the precise details of the respondent’s driving immediately prior to and at the time of the incident are not apparent from the available evidence. The respondent did not retain a memory of the events. Nevertheless, the respondent was deliberately driving in a very dangerous and unsafe manner at the time of the incident; he was exceeding the speed limit by a significant amount on a public road and in circumstances where he was unable to control his vehicle. Further, the respondent, when tested at the hospital, was found to have a blood alcohol concentration of 0.169 per cent alcohol by volume. Professor Jason White, an expert pharmacologist, after employing the accepted “count back” analysis, estimated the respondent to have had a blood alcohol concentration of 0.193 at the time of the incident. At the autopsy, Mr Peart’s reading was found to be between 0.16 and 0.21. 69 According to Professor White, the respondent’s level of intoxication would have impaired his driving faculties including: his alertness; his concentration; his judgment; his decision making; his reaction times; and his ability to respond to a potential collision. 70 The respondent was badly injured and required immediate hospitalisation. His injuries included: chest injuries; a left femoral shaft fracture which required surgery; a toe dislocation; an abdominal haematoma; brain bleeds; and a diffuse axonal injury in the brain. The last has left the respondent with cognitive impairment. He also has ongoing pain and requires a stick when walking. The respondent’s personal circumstances 71 The respondent’s personal circumstances are such as to have limited significantly any need to focus on personal deterrence or the need for rehabilitation when fashioning a sentence, and to have provided a sound basis, more generally, in support of allowing some leniency when sentencing. General deterrence, denunciation of the conduct itself, and punishment remain as important sentencing considerations. 72 The respondent was 29 years old at the time he was sentenced. He had a difficult early upbringing, as a result of his father being verbally abusive and physically violent towards him and his mother, until the father left the family home when the respondent was 15. Prior to the incident, the respondent had a good work history notwithstanding that he suffers from Crohn’s disease, diagnosed when a young adult. He is a qualified panel beater. The respondent has held a driver’s licence for 13 years with no incidents of significance and he has no prior convictions. The respondent, when 16, was a victim of a severe bashing resulting in a lengthy period in hospital. He was also the victim of an armed robbery, during which he was stabbed, when working at a service station. As a result, and understandably, the respondent’s mental health prior to the incident can be described as fragile. As a result of the incident, the respondent now has an acquired brain injury with associated cognitive impairment. Medical reports by the -- 15 of 39 -- [2023] SASCA 42 Nicholson AJA 14 respondent’s general practitioner, a psychologist and a neuropsychologist indicate a diagnosis, as at early 2022 (some 12 months or so after the incident) of anxiety, mixed depression and post-traumatic stress disorder. 73 It is not to be doubted that the respondent is extremely remorseful. A letter, dated 8 August 2022, addressed to the sentencing Judge contains the following (formal parts omitted). I am writing this letter to express my sincere remorse for my irresponsible and dangerous actions on the day of Monday the 5thof April 2021. This resulted in the death of my best friend Nick, unrepairable damage to his family and friends. As a result of the accident, I have no memory of that day This is no excuse as to what resulted that day, I was totally irresponsible There is not a day that goes by that I don’t miss him and think of him and the suffering that I have caused his family. It is not fair that my actions have placed Nick’s family in this position and all I can say is that I am sorry for what I have done. If there is anyway I could trade places with Nick I would. I am now on higher medication for my depression and on other medications as I also don’t sleep well, I have lost most of my friends, sold and or have given away most of my possessions because my house was sold from under me as well as had to re home my dog, but this is nothing in comparison to what Nicks family are going through. My mental health has suffered but it can only pale in comparison to what Nick’s family has been and continue to go through. If I could reverse time I would. I have vowed to never again to engage in such dangerous behavior, I will never truly forgive myself for what I have done, and I never expect to be forgiven by Nicks family. 74 The Judge received an array of very positive personal references including from a number of close friends, work colleagues, former neighbours, a fellow member of an online male support group and the respondent’s mother. The respondent is consistently described as a kind and decent person, a good friend to others and now a broken man who will never forgive himself for what he has done. 75 The respondent continues to suffer significant extra-curial punishment, that is, deleterious consequences independent of any sentence that might be imposed. The extra-curial punishment includes: the ongoing distress at the loss of Mr Peart, his best friend; the complete breakdown, likely to be irretrievable, of his erstwhile very close relationship with Mr Peart’s family; and significant financial and lifestyle loss. I do not raise these matters as in any way excusing the respondent’s egregiously serious criminal conduct but as a reminder that, where an otherwise decent and lawabiding person commits an offence of this nature and with such consequences as in this case for the first and probably only time, they too will suffer significantly. None of this, of course, compares with the death of Mr Peart and the lifelong loss and suffering caused to his wife, their children and wider family and friends. The seriousness of the offending and its consequences 76 The offence of aggravated causing death by dangerous driving is a very serious offence. The fact that the prescribed maximum penalty is imprisonment -- 16 of 39 -- [2023] SASCA 42 Nicholson AJA 15 for life demonstrates how seriously this offence is regarded by the Parliament and the community. The respondent’s conduct constituted an objectively serious example of the offence. He was grossly intoxicated but chose to drive; he chose to flout the road rules and to drive recklessly for no purpose other than the “enjoyment” of driving recklessly; he chose to have a passenger in the car and to put that passenger at risk by driving recklessly; and he exceeded the speed limit by a significant amount, lost control and caused the death of his passenger. 77 The Judge received, considered and summarised in the sentencing remarks a large number of victim impact statements, provided by family and friends. I have also reviewed them; they describe the lifelong tragic heartbreak and suffering the appellant has caused to many family members and friends of Mr Peart. The Judge made the following pertinent observations. I have also read and listened to a large number of harrowing victim impact statements from Nicholas Peart's immediate and extended family members and friends. By all accounts, Nicholas was a devoted and loving husband, father, brother, son, family member and friend. He was caring and kind. He was an environmentalist involved in conservation and revegetation. I have been provided with family photographs depicting happy times involving Nicholas and his family. Nicholas and Elaine's children provided drawings which were their way of showing the visceral impact of your offending upon them. Their victim impact statements are full of hateful sentiments towards you, wishing you were dead or taken away in handcuffs or put in gaol in South Africa. It is tragic beyond words that not only have these children lost their father in such a senseless way, but now, rather than being happy and carefree children, they are consumed by feelings of hate and anger towards you for what you have done. Their mother and other family members are concerned for their mental health and the toll that your offending and the loss of their father will take. It was suggested by Mr Revi, Nicholas's brother-in-law, that this sentencing process may engender in the children a sense of injustice which might grow into contempt for law enforcement as they develop and grow older. He said that even the maximum sentence will feel insufficient because the children will only truly understand the meaning of it after that time has expired and they will still have lost their father at the hands of a man they called uncle and in whom they trusted. I truly hope this is not the case and that in time the children will understand that the sentencing process is not one that is based on the principle of taking an eye for an eye or a life for a life. No sentence I impose can ever restore what they have lost. The Judge’s sentencing remarks 78 I will not summarise the Judge’s sentencing remarks in any detail. They are lengthy and comprehensive. The Judge canvassed the facts, the victim impact statements and relevant legal principles. Apart from one matter that will need to be addressed, there is no complaint concerning the reasoning process; the Judge considered at length all relevant considerations and did not allow irrelevant -- 17 of 39 -- [2023] SASCA 42 Nicholson AJA 16 considerations to intrude. The prosecution complains that, notwithstanding this apparent proper reasoning process, the Judge arrived at a sentence that was egregiously too lenient. 79 The one element of the reasoning process, whilst not an express ground of appeal, that does call for consideration is the Judge’s reference to and application of dicta in Walden v R47 to the effect that when considering the objective seriousness of offences such as this one, a distinction can be drawn between an offence which results in injury or death to a person who has voluntarily driven with the offender knowing that they had been drinking to excess, and an offence which results in injury or death to a person who was not a “volunteer” in this limited sense. Legal principles when sentencing for the offence of aggravated causing death by dangerous driving General approach 80 The general principles applicable to sentencing for the driving offences in this category and the historical changes to and reasons for the significant increase in prison terms ordered over the last 10 years or so, have been explained at length in the recent appellate decisions in R v Wooldridge,48 R v Akol49 and Bubner v The Queen.50 It is unnecessary and can be unhelpful and risk confusion or inconsistency to repeat this exercise in different terms each time a difficult sentencing appeal comes before the court. The difficulties confronted by sentencing Judges in this area arise not so much from any lack of understanding of principles but from the inherently difficult task in applying those principles to the wide range of challenging fact situations that arise, and in particular, where persons of otherwise good character, whilst grossly negligent, unintentionally cause death or very serious harm. R v Walden – continued relevance 81 In R v Walden,51 the 18 year old appellant had driven his motor vehicle with a blood alcohol level, following a count back, of something a little higher than 0.17 per cent by volume. Whilst travelling at approximately 120 kilometres per hour on a section of road where the speed limit was 100 kilometres per hour, he lost control and the car overturned. One of his passengers suffered a serious head injury. Two of the appellant’s companions (who did not enter the vehicle) had warned him against, and had taken steps, unsuccessfully, to prevent him from, driving. The appellant was convicted of causing bodily injury by dangerous driving, the maximum penalty for which was imprisonment for four years. Had the appellant been charged with causing grievous bodily harm, the maximum would have been 10 years. The appellant was sentenced to imprisonment for three 47 (1993) 19 MVR 193 (King CJ, Millhouse and Olsson JJ). 48 [2015] SASCFC 125; (2015) 123 SASR 422. 49 [2020] SASCFC 75; (2020) 284 A Crim R 246. 50 [2022] SASCA 27. 51 (1993) 19 MVR 193. -- 18 of 39 -- [2023] SASCA 42 Nicholson AJA 17 years with a non-parole period of two years. He was separately charged, convicted and sentenced with respect to driving with the prescribed concentration of alcohol in his blood. 82 On appeal,52 the sentence for the dangerous driving offence was reduced to imprisonment for 18 months with a non-parole period of nine months. Chief Justice King as part of his review of relevant considerations said this.53 What converts a summary offence into an indictable crime punishable by imprisonment are the consequences in the form of bodily injury. The consequences are therefore important in assessing the gravity of the crime. I think that in this respect a somewhat less serious view can be taken of an offence which results in injury only to a person who has voluntarily driven with the offender knowing that he is under the influence of liquor than would be the case if the offence had caused injury to somebody who was quite uninvolved in the offender's driving. The unfortunate victim in the present case must have been aware that the appellant's driving capacity was impaired by liquor. The victim was not wearing his seat belt and that no doubt contributed to his injury. 83 Justice Olsson outlined a number of factors which in his view required the seriousness of the offending to be categorised towards the lower end of the scale. In doing so, his Honour included the following.54 In the matter now before the court it seems to me that some distinction needs to be drawn between what occurred on the night in question and a more heinous potential circumstance of injury being occasioned to some innocent third party not associated with the appellant and his vehicle. It is not to be forgotten that, in the instant case, the bodily harm was caused to a person who had, himself, been drinking; and who must be taken to have voluntarily entered the appellant's vehicle well knowing the intoxicated condition of the driver. Moreover it is a fair inference on the evidence that, had the passenger worn a seat belt, as he was legally bound to have done, he may well not have been occasioned injuries remotely as serious as those actually sustained. 84 Walden was decided in 1993. I have not been referred to and have not been able to locate any case in this State or interstate where these dicta have been directly applied other than the sentencing remarks in this case and the sentencing remarks by the same Judge in R v Shannon55 where a suspended prison term was ordered.56 85 The Victorian Court of Appeal adopted a different approach to this issue in Spanjol v The Queen57 in the context of an appeal against sentence for negligently 52 Chief Justice King and Olsson J; Millhouse J dissenting. 53 (1993) 19 MVR 193 at 194. 54 At 199. 55 R v Shannon (District Court of South Australia, 29 July 2020). 56 Walden was referred to in footnote 14 in R v Dawood [2002] SASC 346 but not on the point under construction. 57 [2016] VSCA 317; (2016) 55 VR 350. -- 19 of 39 -- [2023] SASCA 42 Nicholson AJA 18 causing serious injury. In Arpaci v The Queen,58 Kaye JA summarised the two propositions for which Spanjol stands.59 (i) 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 circumstance was partly responsible for the offender’s conduct; and (ii) Further, where it is established that there was an additional factor, outside the offender’s control, which was also a material cause of the accident, that circumstance should ordinarily be taken into account in mitigation of sentence. 86 An example where the second proposition applied is Papagelou v The Queen.60 Finally, we have viewed the closed circuit television footage of the fatal collision more than once, and consider there to be force in the contention that, had Mr Ekselman not been walking across the crossing in disobedience of the red pedestrian light, the fatal collision would not have occurred. In that sense, Mr Ekselman’s crossing against a red light — a matter outside the appellant’s control — was a material cause of his fatal injuries. We consider it to be likely that, as he approached the intersection, the appellant’s view was obscured by Mr Huang’s vehicle. Hence, when he manoeuvred to the left of Mr Huang’s vehicle, he would not have anticipated the presence of Mr Ekselman in the intersection walking against the applicable traffic control signal. So much bears upon the appellant’s moral culpability, and, in our view — as the prosecution accepted on the plea — puts the appellant’s towards the lower end of the spectrum of seriousness of cases of dangerous driving causing death. (Footnote omitted) 87 Another example is DPP v Kandel61 (excessive speed of the victim’s vehicle was a causal contributor). 88 The principle in Spanjol has been considered in a number of cases in Victoria but its precise scope has not yet been determined, insofar as the Victorian courts are concerned. According to DPP v Currie; DPP v Daniels (a pseudonym),62 “Spanjol will be determined on a case-by-case basis as those cases arise”. In Guseli v The Queen,63 the Victorian Court of Appeal cited with apparent approval the Court of Appeal’s adaptation, in George v The Queen,64 of the principles in Spanjol to the case of culpable driving causing death. Spanjol was recently applied by this Court in George v The Queen. That case involved, relevantly, two charges of culpable driving causing death. The offender’s vehicle and a 58 [2020] VSCA 81; (2020) 91 MVR 414. 59 Ibid 81 [264]. 60 [2022] VSCA 53 at [29]; (2022) 99 MVR 232. 61 [2021] VCC 2183. 62 [2021] VSCA 272 at [181]. 63 [2019] VSCA 29 at [47] (Kyrou and Weinberg JJA and Taylor AJA). 64 [2017] VSCA 152; (2017) 80 MVR 436 at 466-467. -- 20 of 39 -- [2023] SASCA 42 Nicholson AJA 19 vehicle driven by AB, in which DH was a passenger, were travelling at very high speed and in close proximity to each other. The front of the offender’s vehicle struck the rear of AB’s vehicle, causing both drivers to lose control of their vehicles, which collided with trees. Both AB and DH died at the scene. There was some evidence that the two vehicles were involved in a ‘drag race’. Priest JA, with whom Ashley JA and Croucher AJA relevantly agreed, referred to the principles summarised in Spanjol with approval. He adapted those principles to a charge of culpable driving causing death, where the particular relied upon is gross negligence, as follows: (1) In a case of [culpable driving by gross negligence], the finding of guilt (or plea of guilty) establishes that the offender’s driving was criminally negligent and that the negligent driving caused the victim’s [death]. (2) The sentencing court will treat as its starting point that the offender was solely responsible for the manner of his driving and that the manner of his driving was the sole cause of the serious injury. But the evidence may support a qualification of one or both of these propositions. (3) As to responsibility for the negligent driving, the offender may be able to establish that some other person (whether or not the victim) and/or some external circumstance was partly responsible for the manner of the driving. (4) As to the causal link with the [death], the offender may be able to establish that there was an additional factor, outside the offender’s control, which was also a material cause of the [death]. (5) The language of ‘complicity’ should be avoided in this context. ‘Complicity’ is a technical term, with a well-defined meaning. It connotes the attribution of criminal responsibility to a co-offender. No such question arises in either of the circumstances under consideration. (6) Instead, the language of ‘reduced responsibility’ should be used to describe the first kind of qualification and the language of ‘other contributing causes’ to describe the second kind of qualification. (Footnotes omitted) 89 The above review is not comprehensive either with respect to Victorian or interstate authority. However, it is sufficient to indicate, with respect, that as a matter of principle, an approach to this issue that is more nuanced than that suggested by Walden is called for. 90 In the prosecution submissions, the observations of King CJ and Olsson J in Walden are described as obiter, thus making available the submission that the approach of the Court of Appeal in Spanjol and subsequent Victorian cases can be preferred. 91 The Judges in Walden when re-sentencing the appellant were each exercising a discretion based on relevant sentencing considerations but not irrelevant considerations. The factual matters referred to as mitigatory, as in all such cases, required each Judge to make one or more evaluative judgments which, of themselves, can be of no precedential value. Nevertheless, they were essential to, -- 21 of 39 -- [2023] SASCA 42 Nicholson AJA 20 that is, part of the reason for, the majority’s decision, the re-sentencing outcome. They were factors among many and not the sole reason. However, they were essential in the sense that in the absence of those factual matters, the majority would have either dismissed the appeal and affirmed the original sentence or still allowed the appeal but re-sentenced differently. 92 There is no need for an arcane debate over whether the Walden observations should properly be characterised as ratio decidendi (the reason for the decision) or obita dicta (a judicial comment made in passing unnecessary to the decision in the case). In any event, they fell to be regarded by subsequent courts in this State as persuasive (in a formal sense, if not in fact). The sentencing Judge in this case did not err in this respect but was entitled, indeed probably obliged, to give consideration to these factors when exercising the sentencing discretion. Further, it is likely that the Judge would have arrived at a more severe sentence in the absence of these considerations which is of some importance as I later explain. 93 I take the view that it does not matter if the Walden observations are, strictly, to be considered as ratio. They identify matters of fact said at the time to be pertinent to the exercise of a sentencing discretion. As such, the weight, if any, they should bear is very much a product of the times, including societal attitudes, as at 1993. Things have changed. Driving whilst intoxicated today is not only a criminal offence it is very much regarded as morally repugnant. It is universally accepted that driving while intoxicated is very dangerous and a fortiori with respect to a passenger. Save for serious interventions by other persons such as in a “carjacking”, by way of example only, an owner/driver has, is entitled to and, in appropriate cases, should be obliged to exercise complete control over who enters their vehicle. A driver of a motor vehicle has a legal obligation and few would deny, also a moral obligation, to ensure that any passenger is wearing the fitted seatbelt before driving off. If the passenger refuses, the driver does not drive. 94 Notwithstanding that the deceased in this matter made his own choices, the respondent, potentially in charge of a lethal object when driven dangerously whilst intoxicated, was in sole control of these two matters. By 2022, this had become “driving 101”. I agree with the reasoning in Spanjol that where criminal responsibility is concerned, civil law notions akin to contributory negligence or even volenti non fit injuria, ordinarily, should not intrude. 95 I have a clear preference for the approach adopted in Spanjol, it is logical, accords with principle and reflects contemporary societal attitudes. I agree that its full ambit can only be ascertained on a case-by-case basis. In my view, the Walden dicta should no longer be applied unless the circumstances are such as to fall within the Spanjol criteria. 96 In the present matter, nothing done or not done by Mr Peart gave rise to the notions of “reduced responsibility” or “other contributing causes” as those terms are deployed in Spanjol. -- 22 of 39 -- [2023] SASCA 42 Nicholson AJA 21 Is the sentence manifestly inadequate? 97 When considering the question of manifest inadequacy, the following observations by the plurality in Hili v The Queen65 are apposite. The single ground of appeal advanced by the Director in each appeal to the Court of Criminal Appeal was that the sentences imposed at first instance were manifestly inadequate. That is, the error which the Director asserted that the sentencing judge had made was of the last kind mentioned in House v The King. By asserting manifest inadequacy, the Director alleged that the result embodied in the sentencing judge's orders was “unreasonable or plainly unjust”. The Director did not allege that any specific error could be identified (as would be the case if the sentencing judge were said to have acted upon wrong principle, allowed extraneous or irrelevant matters to guide or affect her, mistaken the facts or not taken into account some material considerations). Rather, the Director asserted that it was to be inferred from the result that there was “a failure properly to exercise the discretion which the law reposes in the court of first instance”. As was said in Dinsdale v The Queen, “[m]anifest inadequacy of sentence, like manifest excess, is a conclusion”. And, as the plurality pointed out in Wong, appellate intervention on the ground that a sentence is manifestly excessive or manifestly inadequate “is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases”. Rather, as the plurality went on to say in Wong, “[i]ntervention is warranted only where the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons”. But, by its very nature, that is a conclusion that does not admit of lengthy exposition. And, in the present matters, the Court of Criminal Appeal, having described the circumstances of the offending and the personal circumstances of the offenders, said that “the sentence imposed in these matters is so far outside the range of sentences available that there must have been error”. The Court of Criminal Appeal also said that “manifest error is fundamentally intuitive”. That is not right. No doubt, as the Court went on to say, manifest error “arises because the sentence imposed is out of the range of sentences that could have been imposed and therefore there must have been error, even though it is impossible to identify it”. But what reveals manifest excess, or inadequacy, of sentence is consideration of all of the matters that are relevant to fixing the sentence. The references made by the Court of Criminal Appeal to the circumstances of the offending and the personal circumstances of each offender were, therefore, important elements in the reasons of the Court of Criminal Appeal. (Footnotes omitted) 98 In R v Morse,66 King CJ pithily described the process to be undertaken on appeal where manifest excess is asserted. There is no suggestion that the learned sentencing Judge made any error of fact or law or that he failed in any way to take into account the relevant considerations. This Court can interfere only if it is convinced that the sentence was manifestly excessive. To determine whether a sentence is excessive, it is necessary to view it in the perspective of the maximum 65 [2010] HCA 45; (2010) 242 CLR 520 at [58]-[60] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ). 66 (1979) 23 SASR 98 at 99. -- 23 of 39 -- [2023] SASCA 42 Nicholson AJA 22 sentence prescribed by law for the crime, the standards of sentencing customarily observed with respect to the crime, the place which the criminal conduct occupies in the scale of seriousness of crimes of that type, and the personal circumstances of the offender. … No different approach applies where, as here, the contention is one of manifest inadequacy. The period of licence disqualification 99 The respondent’s disqualification from driving for 13 years is also a component of the sentence passed and must be taken into consideration when deciding whether or not the sentence is manifestly inadequate. Section 169B of the Road Traffic Act 1961 (SA) provides as follows. 169B—Effect of imprisonment on disqualification (1) If, in sentencing a convicted person for an offence under this or any other Act, the court imposes a sentence of imprisonment (other than a suspended sentence) and orders that the person be disqualified from holding or obtaining a driver's licence for a specified period, the person will be taken to be so disqualified for a period commencing at the time the order is made and ending at a time calculated as if the specified period commenced— (a) on the person’s release from a period of imprisonment served by the person that consists of or includes a period attributable to the court's sentence; or (b) if, on the person’s release from such a period of imprisonment, the person would, apart from this subsection, already be disqualified from holding or obtaining a driver's licence or holds a driver's licence that is suspended—on the expiration of that period of disqualification or suspension. (2) Subsection (1) applies despite the terms of the court's order and despite the fact that it will or might result in the convicted person being disqualified from holding or obtaining a driver's licence for a period exceeding the maximum period (if any) prescribed under this or another Act in relation to the relevant offence. 100 Relevant to the question of manifest inadequacy is the effective length of the disqualification period. The respondent has been sentenced to a period of imprisonment that has not been suspended, although it is to be served on home detention conditions. 101 I am not aware of any authority that has directly considered whether such a home detention sentence is or is not to be regarded as a suspended sentence for the purpose of subsection 169B(1). The term “suspended sentence” is not specifically defined in the Road Traffic Act 1961 nor in the Sentencing Act 2017 (SA) other than in section 25 for the purpose of that section and otherwise by implication. The provisions in the Sentencing Act 2017 dealing with the suspension of prison sentences are to be found in Division 2 of Part 4 under the heading “Other Community Based Sentences” and the subheading “Bonds, Community Service and Supervision in the Community”. The provisions dealing with sentences to be served on home detention are to be found in Division 7 of Part 3 under the heading -- 24 of 39 -- [2023] SASCA 42 Nicholson AJA 23 “Custodial Sentences” and the subheading “Community Based Custodial Sentences”.67 102 Section 69(1) of the Sentencing Act 2017 describes a home detention order as “a custodial sentence” and is in these terms. (1) The purpose of a home detention order is to allow a court to impose a custodial sentence but direct that the sentence be served on home detention. 103 Subsection 71(1) empowers a Court to order that a defendant “serve [a sentence of imprisonment]” on home detention provided, inter alia, that it first determines that the sentence should not be suspended. 104 The structure of the relevant provisions strongly indicates that a home detention order does not effect a suspension of the sentence of imprisonment but a means by which and, in effect, an order as to the location in which, a custodial penalty is to be served.68 105 Section 169B of the Road Traffic Act 1961 pre-dates the amendments to the Criminal Law (Sentencing) Act 1988 (SA) and the passage of the Sentencing Act 2017 which made provision for sentences of imprisonment to be served on home detention. When the carve out of “a suspended sentence” in subsection 169B(1) was provided for, sentences to be served on home detention were not in contemplation. Nevertheless, the reference to “suspended sentence” in subsection 169(1) should be construed strictly, as not including custodial sentences to be served on home detention.69 Such a construction accords with the evident intent of and policy underlying subsection 169(1) that whilst any suspension should operate during a period of time served, the length of the suspension ordered should not be reduced by the period of time served, even though the defendant would not be driving in any event. Home detention imposes severe restrictions on when a defendant can leave their house. Whilst in the circumstances where permission to leave might be given, a defendant might also in the ordinary case be able to drive, these occasions, typically, will be rare and the intent of and policy underlying subsection 169(1) with respect to a custodial setting should apply also to the home detention setting. 106 It follows that the 13 year disqualification period ordered in the present case commenced on the day of sentencing, 16 September 2022 (as correctly directed by 67 Section 19 of the Legislation Interpretation Act 2021 (SA) provides: 19—Material that is part of Act or instrument (1) Except as provided in subsection (2), everything appearing in an Act or a legislative instrument is part of the Act or instrument. (2) Subsection (1) does not apply to— (a) anything described as an editorial note; or (b) material appearing under the heading "Legislative History"; or (c) an appendix setting out a table of divisional penalty and expiation fee amounts that specifies that it is for convenience of reference only. And see, Disorganized Developments Pty Ltd & Ors v The State of South Australia [2022] SASCA 6 at [44]. 68 See also, R v Camarhina [2018] SASCFC 118 at [70]. 69 Cf; the discussion in R v Grundy [2021] SASCA 4 in a different context at [35]-[40]. -- 25 of 39 -- [2023] SASCA 42 Nicholson AJA 24 the Judge), but the 13 year period will not expire until 13 years after the respondent is released from “custody” albeit, on home detention. At the earliest, this will be on the expiration of the non-parole period of three years, five months and one day from that date of sentencing. In effect, the total disqualification period will amount to almost 17 and a half years,70 although recognising that the opportunity for the defendant to drive during the non-parole period will be extremely limited in any event. The head sentence 107 As a general proposition, prison sentences for aggravated causing death by dangerous driving have increased substantially over the last 20 years or so. There is no doubt that a harsher approach, particularly where drugs, alcohol or flagrant breaches of the road rules are concerned, has developed in response to the community’s and the Parliament’s heightened concerns. These developments have been traced by this Court in R v Akol71 and Bubner v The Queen.72 Nevertheless, the basic principles identified by Doyle CJ in R v Payne73 in cases of the basic offence of cause death by dangerous driving, whilst stated at a time when the sentencing regime provided for a substantially lower maximum penalty, continue to be of assistance. The maximum penalty at the time for the basic offence was imprisonment for 10 years. The references to three years by Doyle CJ are to be understood in this context. The function of the court is to impose an appropriate sentence for the offence, taking into account the maximum penalty of 10 years imprisonment for a first offence. The court does not measure the value of a human life, or regard itself as dealing directly with the road toll. A sentencing court must assess the objective circumstances of the offence, with a view to measuring its seriousness and the culpability of the offender. The court must also take into account the circumstances of the offender. Experience shows that the offender will often be a person of otherwise good character with no significant record of offending, who has killed another person as a result of a significant episode of bad driving, involving more than momentary inattention. As the practice of sentencing judges shows, a sentence of imprisonment of the order of three years, not suspended, will often be appropriate. It will be appropriate despite the reluctance of a court to imprison a person who has no record of offending, and whose prospects of rehabilitation are relatively good. This reflects the seriousness of the offence, and the fact that it continues to occur. There will be cases warranting a heavier penalty, and sometimes a much heavier penalty. That will usually be the result of significant circumstances of aggravation, and particularly circumstances linked to the bad driving which is at the heart of this offence. 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, 70 After also adding in the one year previously served for which the Judge allowed credit. 71 [2020] SASCFC 75; (2020) 284 A Crim R 246. 72 [2022] SASCA 27. 73 [2004] SASC 160; (2004) 89 SASR 49 at [69]-[74]. -- 26 of 39 -- [2023] SASCA 42 Nicholson AJA 25 and often a finding that the death was caused by momentary inattention or carelessness. A suspended sentence will usually reflect significant personal mitigating circumstances. Our reference to a sentence of three years imprisonment is not an endorsement of that sentence as the right sentence, or as a benchmark. We refer to it because sentencing practice shows that it has often been considered an appropriate sentence. We have not been satisfied that the sentencing patterns of the past reflect an inadequate assessment of the seriousness of the offence or inconsistency of approach. We simply remind sentencing judges of the need to bear in mind the statutory maximum, and remind them that from time to time there will be cases calling for substantially heavier punishment than a sentence of three years imprisonment. 108 It has been common of late, when considering the questions of manifest excess or manifest inadequacy with respect to causing death by dangerous driving, for this Court and the earlier Full Court, sitting as the Court of Criminal Appeal, to review at some length sentences passed in other cases. There are obvious and well understood difficulties with such an exercise. The predilection to do so in this area may be a reaction to the difficulties experienced, when sentencing for this offence, in seeking to maintain consistency and some sense of parity. Again, the plurality in Hili74 has provided observations that are of assistance. Next, in seeking consistency, sentencing judges must have regard to what has been done in other cases. In the present matter, the prosecution produced detailed information, for the sentencing judge and for the Court of Criminal Appeal, about sentences that had been passed in other cases arising out of tax evasion as well as cases of customs and excise fraud and social security fraud. Care must be taken, however, in using what has been done in other cases. In Director of Public Prosecutions (Cth) v De La Rosa, Simpson J accurately identified the proper use of information about sentences that have been passed in other cases. As her Honour pointed out, a history of sentencing can establish a range of sentences that have in fact been imposed. That history does not establish that the range is the correct range, or that the upper or lower limits to the range are the correct upper and lower limits. As her Honour said: “Sentencing patterns are, of course, of considerable significance in that they result from the application of the accumulated experience and wisdom of first instance judges and of appellate courts.” But the range of sentences that have been imposed in the past does not fix “the boundaries within which future judges must, or even ought, to sentence”. Past sentences “are no more than historical statements of what has happened in the past. They can, and should, provide guidance to sentencing judges, and to appellate courts, and stand as a yardstick against which to examine a proposed sentence” (emphasis added). When considering past sentences, “it is only by examination of the whole of the circumstances that have given rise to the sentence that ‘unifying principles’ may be discerned”. As the plurality said in Wong: “[R]ecording what sentences have been imposed in other cases is useful if, but only if, it is accompanied by an articulation of what are to be seen as the unifying principles which those disparate sentences may reveal. The production of bare statistics about sentences that have been passed tells the judge who is about to pass 74 At [53]-[55]. -- 27 of 39 -- [2023] SASCA 42 Nicholson AJA 26 sentence on an offender very little that is useful if the sentencing judge is not also told why those sentences were fixed as they were.” (Footnotes omitted) 109 When consideration is given to the circumstances of and the sentences imposed in recent decisions of this Court in R v Wooldridge,75 R v Akol76 and Bubner v The Queen,77 the starting point for the respondent in this case of four years and six months is too low and outside the available range, although, given the respondent’s personal circumstances and the very lengthy disqualification period also ordered, not egregiously so. 110 Before leaving this issue and in order to put this conclusion into further context, brief mention should be made to a number of other appellate decisions in this Court which have involved drunk or drug driving. 111 In R v Ceruto,78 the Full Court refused to interfere on a defence appeal and held that a sentence of six years and 10 months after reductions from a starting point of 10 years whilst “at the high end” was not manifestly excessive. The acts of and contributing to the dangerous driving which were far more serious than in the present case; the conduct beforehand in forcing the appellant’s wife who was in an advanced stage of pregnancy into the vehicle; the fact that both the appellant’s wife and unborn child were killed; the post-offence conduct including fleeing the scene and leaving his wife to fend for herself; and the appellant’s personal circumstances which were considerably less meritorious than in the present case, placed the appellant in Ceruto in a category far more serious than that within which Bubner, Akol and the present case fall. 112 In R v Watkins,79 the Full Court refused to interfere, on a defence appeal, with a head sentence of eight years reduced from a starting point of 10 years. The acts of and contributing to the dangerous driving were also far more serious than in the present case. Further, and whilst the appellant’s personal circumstances were commendable and he was genuinely remorseful, his driving affected six victims. He caused and was charged with respect to the death of one person, serious injuries 75 [2015] SASCFC 125; (2015) 123 SASR 422 – four counts of dangerous driving causing death (but no features of aggravation); maximum penalty for each count 15 years; momentary inattention simpliciter, but sufficient to amount to dangerous driving; compelling personal circumstances; starting point reduced on appeal to two and a half years for the first of four fatalities caused. 76 [2020] SASCFC 75; (2020) 284 A Crim R 246 – very high blood alcohol concentration (0.22 per cent); street racing at speeds significantly exceeding the speed limit; loss of control on wrong side of the road; single vehicle accident; 20 years old with compelling personal circumstances save for having driven whilst disqualified and very poor driving record, including earlier similar act of dangerous driving; starting point increased on appeal to six years and six months. 77 [2022] SASCA 27 – driving within the speed limit on country highway; drifted to be wholly on the wrong side of the road causing head on collision; high methylamphetamine level giving rise to markedly elevated likelihood of being involved in an accident and impaired ability to respond appropriately; strong personal circumstances but with a number of prior driving offences; starting point for first of two fatalities reduced on appeal to six years. 78 [2014] SASCFC 5. 79 [2013] SASCFC 150. -- 28 of 39 -- [2023] SASCA 42 Nicholson AJA 27 to two others and relatively minor injuries to three others, which the Full Court found to be relevant to fixing the final sentence. Again, the Full Court found the sentence appealed from to be at the high end but within range. 113 In R v Farrer,80 the Full Court refused to interfere on a defence appeal from a head sentence imposed following findings of guilt at trial, of five years, four years of which was referrable to the offence of aggravated causing death by dangerous driving.81 114 The appellant was driving within the speed limit on a country road when she caught up with, struck and killed a cyclist. The appellant did not stop. The appellant had a high concentration of methylamphetamine in her blood together with small quantities of other illicit drugs. The accident occurred through gross inattention. The appellant had been sleep deprived for a very long period and had been conscious of trying to stay awake. However, there was no finding at trial that the appellant had fallen asleep at the wheel. Apart from the existence of methylamphetamine and the leaving of the scene (for which the appellant was separately sentenced) there were no other aggravating features. 115 The appellant had no prior criminal record and gave birth to a baby conceived some 18 months after the accident, but otherwise her personal circumstances were unremarkable. The Court82 did not specifically endorse or criticise the four year sentence for the aggravated causing death but, rather, was satisfied that the two year sentence for leaving the scene, with one year to be served concurrently, was merciful. This, together with a “distinct benefit” thus enjoyed with respect to the calculation of the mandatory non-parole period, meant that it was “not even arguable” that the two sentences imposed were manifestly excessive. The facts of Farrer, the fact that it was a defence appeal and the reasoning of the Full Court on appeal render the case a particularly poor comparator. The decision to order service on home detention 116 The prosecution, as part of its submissions on appeal, provided a chart purporting to summarise briefly the circumstances and outcomes in 21 District Court (first instance and not appealed) and Court of Criminal Appeal matters dealing with sentences for aggravated causing death by dangerous driving. In only one, R v Shannon,83 was the sentence suspended. There was no prosecution appeal. In one other, R v Robertson,84 the head sentence was ordered to be served on home detention. Again, there was no prosecution appeal. In addition, there are the matters of Branscheid and Trewren in which suspension or home detention was not contemplated. These statistics are in no way, of themselves, decisive. However, it is readily apparent that an order for suspension or for service by way 80 [2017] SASCFC 27. 81 The appellant was also sentenced to imprisonment for two years with one year to be served concurrently with the four years, for leaving the scene of an accident. 82 Justice Kelly (with whom Vanstone and Nicholson JJ agreed). 83 R v Shannon (District Court of South Australia, 29 July 2020). 84 R v Robertson (District Court of South Australia, 28 May 2021). -- 29 of 39 -- [2023] SASCA 42 Nicholson AJA 28 of home detention with respect to the inevitable prison sentence for the offence of aggravated causing death by dangerous driving, nowadays, will be extremely rare.85 117 In Robertson, a District Court Judge sentenced the defendant to imprisonment for four years with a non-parole period of three years, two months and 12 days to be served on home detention with respect to one count of aggravated causing death by dangerous driving. In addition, he was banned from driving for life. The aggravating feature (cannabis) was unlikely to have significantly affected the defendant’s ability to drive. The accident may have been contributed to by an eyesight problem known to the licensing authority and which did not preclude the defendant from driving. The defendant was 58 with strong personal circumstances. 118 Shannon concerned a sentence passed by the same Judge who sentenced the present respondent. The defendant was sentenced to imprisonment for three years and six months after reduction for a plea with a non-parole period of two years, nine months and 19 days with respect to one count of aggravated causing death by dangerous driving. The sentence was suspended. In this case, the aggravating feature (drugs) was found to have contributed to impaired driving particularly as to slow reaction times. There was no other breach of the road rules other than losing control and colliding with a tree. The passenger was also affected by drugs and was not wearing a seatbelt; the Judge applied Walden (see earlier) as diminishing the moral culpability of the defendant who was only 19. 119 Without forming a concluded view as to the correctness or otherwise of the decisions to order home detention and suspension in Robertson and Shannon, respectively, on the basis of the very limited information available, both would appear to have been stronger cases for such leniency than the matter now under appeal. 120 Subsection 71(1) of the Sentencing Act 2017 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. Section 70 and the balance of section 71 provide for certain offences and types of offender to be expressly excluded from the home detention regime and for various considerations that must be taken into account before making such an order. There is no express preclusion with respect to the offence of aggravated causing death by dangerous driving or of an offender with the defendant’s characteristics. However, of relevance to the present case is subsection 71(2)(a) which is in these terms.86 85 In R v Wooldridge [2015] SASCFC 125; (2015) 123 SASR 422, the appellant was charged only with basic or non-aggravated offences (maximum penalty, 15 years) and otherwise had a strong case for suspension. 86 [2016] SASCFC 156 at [57]-[59]. -- 30 of 39 -- [2023] SASCA 42 Nicholson AJA 29 (2) The following provisions apply to a home detention order: (a) 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; 121 Also of relevance to the present case are certain, generally accepted and often cited, observations of Doyle J in R v Dell.87 The observations of Doyle J in Dell were made in the context of the earlier and slightly different regime for home detention in the Criminal Law (Sentencing) Act 1988 but they remain pertinent. 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 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. (Footnotes omitted) 122 The reference in the penultimate paragraph in the passage from Doyle J above, to the need to ensure that the objectives of punishment and general deterrence are not inappropriately undermined, and the terms of subsection 71(2)(a) together leave little scope, if any, for an order to serve a lengthy sentence on home detention in cases like the present one. As earlier indicated, the primary sentencing purposes that arise in this case are: general deterrence, denunciation and punishment. Whilst the respondent’s personal circumstances are to be accorded significant weight, the extremely serious nature of the offending and its 87 R v Dell [2016] SASCFC 156 at [54]-[56]; (2016) 126 SASR 571. -- 31 of 39 -- [2023] SASCA 42 Nicholson AJA 30 consequences must not be overlooked. If offending is so serious as to warrant a sentence of imprisonment with a non-parole period of almost three and a half years, it is almost certainly too serious to admit of home detention. The weight to be accorded to the respondent’s personal circumstances, in such a case, might more appropriately sound in leniency with respect the head sentence and non-parole period rather than in suspension or home detention. 123 The Judge erred in allowing the custodial sentence in this case to be served on home detention. It does not pay sufficient regard to the relevant objectives underlying the sentence imposed. It is also inappropriate, in this case, given the length of the sentence imposed. It lacks consistency with the approach adopted by other Judges and this Court in similar cases and is likely to promote a genuine sense of grievance in terms of parity on the part of other defendants. Manifest inadequacy of the sentence as a whole - conclusion 124 Even after taking into account the unusually long period of licence suspension, effectively almost 17 years and six months, the sentence as a whole was manifestly inadequate. The question of permission 125 In a lengthy exposition in R v Kelly,88 Lovell JA has provided a distillation of the principles governing an appeal by the Crown against sentence and, in particular, those governing the question of leave or permission to appeal. That exposition is far too long to repeat here, but I wish to acknowledge, with respect, my agreement with it. 126 The prosecution has succeeded in establishing error. Were leave to appeal be given, the appeal allowed and the sentence set aside, this Court should re- sentence rather than remit the matter to the District Court for re-sentence. When re-sentencing, the Court would be obliged to impose the sentence that should have been imposed in the first instance. There is no scope for double jeopardy considerations at the re-sentencing stage.89 Were the appeal to be allowed and the respondent re-sentenced, the head sentence would be increased after allowing some credit for time served on home detention, with a consequential adjustment to the non-parole period and the defendant would be required to serve the increased sentence in custody. However, the terms of section 150 of the Criminal Procedure Act 1921 (SA) do not affect the conventional common law approach to the question of whether the prosecution should be given leave to appeal from the imposition of a manifestly inadequate sentence. Double jeopardy considerations continue to apply to that question. 88 [2023] SASCA 22 at [22]-[50] (Lovell JA). 89 Criminal Procedure Act 1921 (SA) section 150, and see R v Harkin [2011] SASCFC 24; (2011) 109 SASR 334 at [33]-[37] with reference to sections 340 and 353(4)(a)(i) of the Criminal Law Consolidation Act 1935, now repealed but reinstated in materially the same form as sections 150 and 158(7) of the Criminal Procedure Act 1921. -- 32 of 39 -- [2023] SASCA 42 Nicholson AJA 31 127 The basic principle taken from Everett v The Queen90 is set out towards the beginning of these reasons. There have been many and repeated attempts by this and other courts to explain the meaning or context of the “rare and exceptional case”.91 The well accepted and often cited statement by Doyle CJ in R v Nemer92 remains apposite. The Director's right to seek leave to appeal against sentence, and the court's power to interfere, are found in s 352(1)(a)(iii) of the Criminal Law Consolidation Act 1935 (SA). Similar provisions exist in other States. The High Court has determined that the court should grant leave to the Director to appeal against sentence “only in the rare and exceptional case”. The result of the principles established by the High Court is that, to obtain leave to appeal against sentence, the Director must do more than satisfy the court that an error may have occurred. The court cannot grant leave to appeal, with a view to increasing a sentence, merely because it appears that an error has been made. Leave to appeal should be granted only if the allowing of the appeal would advance some wider purpose, such as to give the court an opportunity to establish a principle of sentencing law or to establish or to maintain an adequate standard of sentencing for a particular offence or kind of offence (as distinct from simply correcting an error in a particular case). In other words, the High Court has held that leave to appeal should be granted to the Director only when the allowing of the appeal is necessary to enable the court to establish relevant sentencing principles. However, even when those purposes would not be served, the court can correct a particular sentence if the sentence is so far below the appropriate range of sentence that the sentence reflects an error of principle or would “shock the public conscience”. Another way of expressing this point is to say that the court should not grant leave to appeal to the Director merely with a view to correcting a sentence that is too low. But if the sentence is so far below the appropriate standard that to allow the sentence to stand would shake public confidence in the administration of justice, then it may be appropriate to grant leave to appeal even though no general point of principle will be established by the case. There is a question of degree and a subjective assessment involved here, and that makes it difficult to apply this criterion. (Citations omitted) 128 More recently, the Full Court sitting as the Court of Criminal Appeal in R v Buttigieg93 emphasised that the “rare and exceptional” test should be rigorously applied and that: Both error and strong reasons of public policy are required to justify appellate intervention in a sentence said to be manifestly inadequate. The Crown must persuade the Court that such strong reasons of public policy exist which demand permission to appeal be granted despite the public interest in not twice vexing the respondent. 90 (1994) 181 CLR 295. 91 R v Buttigieg [2020] SASCFC 38 at [39] (Lovell J, Kourakis CJ and Nicholson J agreed). See also R v CAB [2020] SASCFC 33 at [8]-[9] (Livesey J, Kourakis CJ and Doyle J agreed); R v Lumsden [2020] SASCFC 3 at [47] (Bampton, Peek and Lovell JJ agreed); R v Payne (2004) 89 SASR 49 at [86] (Doyle CJ, Mullighan, Nyland, Sulan and Anderson JJ). 92 [2003] SASC 375 at [22]-[24] (Doyle CJ); (2003) 87 SASR 168. 93 [2020] SASCFC 38 at [39] (Lovell J). -- 33 of 39 -- [2023] SASCA 42 Nicholson AJA 32 129 The notion of twice vexing a defendant is an important one in the present context. Where a defendant has been led to believe that they have received a just sentence according to law and has come to terms with the reality of their future, it is morally problematic, if not wrong and unfair, to disturb that position and impose a more severe penalty simply because the sentencing Judge has erred with no fault of the defendant. 130 Paradoxically, the more egregious the judicial error and the more inadequate the sentence at first instance (as, for example, this case) the more vexed will be a defendant when a more severe sentence comes to be imposed. In addition, there is vexing and there is vexing. To imprison a defendant, particularly a first offender, for a lengthy period, having initially allowed a suspended or home detention sentence is a much more serious consequence for that offender than where a term of imprisonment already being served is increased (with a proportionately less increase in the non-parole period). 131 The respondent in this case was sentenced on 16 September 2022 at which time he was led to understand that he could serve his custodial sentence on home detention conditions. The Director’s notice of appeal was filed promptly, on 5 October 2022. As from that date the respondent, no doubt, has experienced a very anxious time awaiting the outcome of the appeal. It is now well into 2023, although the delay in resolving the appeal cannot be said to be the fault of either party or the Court. If leave were given and the appeal allowed, the respondent would be very seriously twice vexed. He would face a substantial increase to the head sentence of four and a half years and the non-parole period of three years, five months and one day and be required to serve at least the non-parole period in prison. Such unfairness to the respondent in this case would be the more serious given that a reason for the sentence being either inadequate or more inadequate than it otherwise would have been and thus adding to the extent of the second vexing, is that the Judge applied Walden, as the Judge was entitled to do, albeit inappropriately for the reasons earlier given. 132 These circumstances highlight the need for the prosecution to point to strong reasons of public policy which demand the giving of leave to appeal in this case. 133 The chart of sentencing outcomes for the offence of aggravated causing death by dangerous driving over the last three years or so, provided by the prosecution, does not indicate that sentencing judges are experiencing any difficulty in either identifying or applying the relevant principles. In addition to the prosecution appeal now under consideration, only R v Akol involved a prosecution appeal.94 This Court’s judgments in R v Akol,95 Bubner v The Queen96 and in this matter have set out and discussed the principles to be applied. The chart suggests that adequate standards for the punishment of this particular crime, by and large, are being 94 [2020] SASCFC 75; (2020) 284 A Crim R 246. 95 Ibid. 96 [2022] SASCA 27. -- 34 of 39 -- [2023] SASCA 42 Nicholson AJA 33 maintained. The standards that should have been but were not observed in this case are sufficiently clear from these reasons. No further assistance in this respect would be gained by giving leave to appeal. Of course, to refuse leave in this case would mean that an adequate standard of punishment will not have been achieved in this case. But that, of itself, cannot be a reason to give leave – otherwise the prosecution would obtain leave in every case of manifest inadequacy with only lip service being rendered to the Everett principle.97 134 The question whether there is a need to correct idiosyncratic views of individual judges with respect to particular crimes or types of crime does not arise in this case. There does not appear to be such a problem with the type of offence now under consideration. Nevertheless, the following observations may be of assistance. It obviously is important to the administration of justice in this State that all Judges sentence, as best they are able, within the appropriate range for an offence and an offender. An idiosyncratic view on the part of one or more Judges as to what should be proper levels of penalty and punishment for particular crimes can lead to a distortion of the proper approach on Crown appeals and result in a disservice to particular defendants who have been the beneficiary of undue leniency at first instance. Now that double jeopardy principles no longer apply at the re-sentencing stage, a successful Crown appeal can often lead to a sentence more severe than had the first instance Judge sentenced appropriately in the first place. The task of a sentencing Judge who sees the need for leniency and even, on occasion, mercy, is to give vent to that need but only to the extent possible within the range. Not to do so can result in a defendant being twice vexed with a substantially harsher re-sentence than should otherwise have been ordered at first instance and that would have survived appeal. 135 Finally, there is the question of whether the sentence in this case is so far below the appropriate range as to, in the language of earlier authorities, “shock the public conscience”. In this respect, I adhere to the position put by Peek J with which Stanley J and I agreed and the additional observations I made with which Stanley J agreed, in R v McPartland & Polkinghorne.98 136 Justice Peek said this.99 Some years ago now, the phrase “shock the public conscience” was originally used to stress the great height of the hurdle to be overcome before a prosecution appeal could succeed. However, it later came to be used in a rather emotive fashion, such as to be unhelpful to precise analysis. The use of the phrase was positively discouraged by the Court of Criminal Appeal in the decision of R v Siozios where, Perry J (with whom Doyle CJ agreed) stated:100 In considering whether it is proper to give leave to the Crown to appeal against sentence, I am not sure that the expression ‘shock the public conscience’ by reference to the sentence under appeal, should now be, or form part of, the appropriate test. 97 Everett v The Queen (1994) 181 CLR 295 at 299. 98 [2014] SASCFC 84. 99 At [23]-[29]. 100 (2004) 236 LSJS 88, 89. -- 35 of 39 -- [2023] SASCA 42 Nicholson AJA 34 There is much evidence to suggest that these days, the public conscience is easily shocked. It is an emotive expression which I tend to think ought no longer to be regarded as an appropriate test to apply in determining whether leave to appeal against sentence should be granted in favour of the Crown. [Footnotes omitted.] In both Jones101 and R, AW,102 I called attention to those remarks by Perry J and specifically endorsed them. In Jones, I stated:103 Although his Honour was no doubt intending to postulate a very high hurdle to be overcome, the phrase has since come to be used on occasions in a highly emotive fashion which may tend to blur rather than sharpen analysis. In DPP v Fucile and Tran,104 the Victorian Court of Criminal Appeal endorsed the above passage in Siozios. The Court noted that counsel for the Victorian Director of Public Prosecutions had used the expression ‘shock the public conscience’ in argument and stated:105 It should perhaps be noted that the ‘shock the public conscience’ test has been the subject of judicial criticism. In R v Siozios, Perry J, with whom Doyle CJ agreed, observed: In considering whether it is proper to give leave to the Crown to appeal against sentence, I am not sure that the expression ‘shock the public conscience’ by reference to the sentence under appeal, should now be, or form part of, the appropriate test. There is much evidence to suggest that these days, the public conscience is easily shocked. It is an emotive expression which I tend to think ought no longer to be regarded as an appropriate test to apply in determining whether leave to appeal against sentence should be granted in favour of the Crown. In R v Jones, Peek J endorsed the South Australian Full Court’s earlier disapproval of the use of the phrase ‘shock the public conscience’ as one possible limb of the test for granting leave to appeal. He said: ... although his Honour was no doubt intending to postulate a very high hurdle to be overcome, the phrase has since come to be used on occasions in a highly emotive fashion which may tend to blur rather than sharpen analysis. On the state of the authorities that bind this Court, Mr Silbert was clearly entitled to invoke the phrase in support of his submission. In our view, however, it should no longer be used in this area of discourse. The very notion of ‘the public conscience’ is itself of uncertain content, and its invocation sheds no light on the task which the appellate court must perform. The Victorian Court of Criminal Appeal was clearly correct in stating in Fucile and Tran that this notion of “the public conscience” is “itself of uncertain content”. However, one 101 (2010) 108 SASR 479, 503. 102 (2012) 113 SASR 179, 190 [42]. Nyland J agreed. 103 (2010) 108 SASR 479, 503. 104 [2013] VSCA 312, [99]-[102] (Maxwell P and Weinberg JA); Tate JA agreed. 105 DPP v Fucile and Tran [2013] VSCA 312, [101]-[102]. -- 36 of 39 -- [2023] SASCA 42 Nicholson AJA 35 is at least certain that neither the Courts, nor the Office of the Director of Public Prosecutions, nor the South Australian Police, have or claim to have, the role of being “the public conscience”; the respective roles of these institutions are well defined and well known. In so far as other persons or entities may purport to declare the nature or content of “the public conscience”, such declarations will usually be seen, on calm reflection, to be inconsistent both as between the various declarants and as between declarations made on different occasions by the same declarant. The observations of Doyle CJ directed to the closely related, and equally nebulous, term “the public opinion”, have analogous application to references to “the public conscience”:106 The judge can take account of public attitudes to the type of crime in question, and public concern about the prevalence of a type of crime or about its effects. In this general way public opinion is relevant. A sentencing judge can also have regard in a general way to a public expectation that serious crime will attract severe punishment. But it is not lawful for a judge to try to identify and then impose the sentence that the public expect. The judge must sentence according to law, not according to the public expectation. In any event, there is no way of knowing reliably what the public as a whole want or expect in a particular case. On appeal, the fact that many people have publicly criticised a sentence as inadequate cannot influence the court. If the sentence is within an appropriate range, the court cannot interfere. If the court does interfere, it does so because an error has been made, not because the sentence has been widely criticised. To be clear then, legal debate as to whether a person who has already been sentenced by a Judge should later have that sentence increased must be conducted in terms that are non- emotive and have substantive content. Terminology such as “shock the public conscience” lacks these essential features. I agree with the Victorian Court of Appeal that this terminology “should no longer be used in this area of discourse”.107 137 In McPartland & Polkinghorne, I added the following.108 I agree that the Director’s application for leave to appeal should be refused for the reasons given by Peek J. I also am of the view, essentially for the reasons his Honour has given, that the phrase “shock the public conscience” in this area is unhelpful and potentially distracting such that its use should be avoided. I add to the judicial observations on this topic, referred to by Peek J, what I said in R v Nedza.109 The proper approach to a Crown appeal against sentence, to be observed by an appellate court, is well settled. Permission to appeal is to be granted only in rare and exceptional circumstances.110 This State’s Court of Criminal Appeal (consisting of 106 R v Nemer (2003) 87 SASR 168 at 171. 107 [2013] VSCA 312 at [101]-[102]. 108 [2014] SASCFC 84 at [46]. 109 [2013] SASCFC 142 at [65]-[66]. 110 Everett v R (1994) 181 CLR 295 at 299-300. -- 37 of 39 -- [2023] SASCA 42 Nicholson AJA 36 five justices)111 not so long ago summarised the proper approach in the following terms.112 The principles to be applied to applications by the Director of Public Prosecutions for leave to appeal against a sentence are well known. Leave should only be granted to establish some matter of principle, pursuant to which the Court of Criminal Appeal might give guidance to sentencing judges, or if it is necessary for the court to establish and maintain adequate standards of punishment for a crime, or to correct a sentence which is so disproportionate to the seriousness of the crime as to require intervention so that standards of penalty and public confidence in the administration of justice can be maintained: see Everett v The Queen (1994) 181 CLR 295 at 299-300; Griffıths v The Queen (1977) 137 CLR 293; R v Osenkowski (1982) 30 SASR 212 at 212-213. In many cases, intervention has been said to be justified where a particular sentence is so far below the appropriate range of sentences for a particular crime that, if allowed to stand, it would “shock the public conscience”. One has a general appreciation of that to which this notion is directed. However, I do not find it easy to articulate what it means to “shock the public conscience” given the inherent difficulties in identifying what constitutes the “public” conscience in a way that is not simply a reflection of the views of those persons or groups of persons who happen to make their views known publicly and in a way that separates it from the conscience of the Judge hearing the appeal. I prefer the formulation used in R v Payne which is directed to a sentence that is “so disproportionate to the seriousness of the crime as to require intervention so that… public confidence in the administration of justice can be maintained. 138 In applying the less emotive language and bearing in mind the nature of the “public” as a fully informed body politic with no personal connection to the matter at hand, this requirement presents a high barrier for the prosecution to overcome in this case. Notwithstanding that the sentence in this case was plainly wrong, I am not satisfied that this criterion has been satisfied with respect to this offender. Conclusion 139 The following statements by Lovell JA as to why he would have refused permission to appeal in R v Kelly113 accord with my conclusions in the matter before me. The decision as to whether to grant the prosecution permission to appeal is finely balanced. The offending was serious, and the sentence imposed clearly manifestly inadequate. It is not necessary to grant permission in order to establish an adequate standard of punishment. Previous decisions have done that. All that has happened is that the sentencing Judge has departed from those decisions. The granting of permission in this case turns on the question of whether the departure from what are the adequate standards was so significant as to require correction. When considering that proposition, double jeopardy and the rare and exceptional principle require consideration. In my view, the wider purposes of the prosecution appeal may be achieved in this case by the finding of manifest inadequacy and the reasons which establish the sentence imposed was wrong and why. To reverse the decision of the sentencing Judge and impose an 111 R v Payne (2004) 89 SASR 49, Doyle CJ, Mullighan, Nyland, Sulan and Anderson JJ. 112 At [86]. 113 [2023] SASCA 22 at [77]-[79] (Lovell JA). -- 38 of 39 -- [2023] SASCA 42 Nicholson AJA 37 immediate custodial sentence would be to cancel the respondent’s right to be at liberty when he has clearly abided by what the Court has already required of him. I consider that to grant permission to appeal would come at too high a cost in terms of justice to the respondent. I do not consider that the public policy considerations outweigh the significant cost of the respondent being twice vexed by the coercive power of the State. This is not a “rare and exceptional” case that warrants granting the prosecution permission to appeal the sentence. 140 I would refuse leave to appeal. -- 39 of 39 --