LEIF BRANSCHEID v THE KING [2023] SASCA 103

On Appeal from DISTRICT COURT OF SOUTH AUSTRALIA (HIS HONOUR JUDGE MUSCAT) DCCRM-20-1945 Appellant: LEIF BRANSCHEID Counsel: MR B ARMSTRONG - Solicitor: MANGAN EY & ASSOCIATES Respondent: THE KING Counsel: MR M HINTON KC - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) Hearing Date/s: 07/02/2022 File No/s: SCCRM-22-007501 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. BRANSCHEID v THE KING [2023] SASCA 103 Judgment of the Court of Appeal (The Honourable President Livesey, the Honourable Justice David and the Honourable Justice Nicholson) 27 September 2023 CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE CRIMINAL LAW - SENTENCE - RELEVANT FACTORS CRIMINAL LAW - SENTENCE - PURPOSE OF SENTENCE CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - SENTENCE - CULPABLE OR DANGEROUS DRIVING CAUSING DEATH - SOUTH AUSTRALIA This is an appeal against sentence. The appellant pleaded guilty to one count of aggravated causing death by dangerous driving, contrary to s 19A(1) of the Criminal Law Consolidation Act 1935 (SA). On 10 March 2020, the appellant while driving on South Para Road at Kersbrook, moved onto the opposite side of a two-laned road and collided head-on with a vehicle driven by the deceased. At the time of the collision, the appellant had methylamphetamine, morphine and diazepam present in his blood. The sentencing Judge commenced with a starting point of nine years and six months imprisonment, reduced on account of the appellant’s guilty plea to nine years and nine days imprisonment. A non-parole period of seven years, two months and 19 days was fixed, that being about four-fifths of the head sentence. The sentencing Judge ordered that the appellant be disqualified from holding or obtaining a driver's licence for 20 years to commence on the appellant’s release from prison. -- 1 of 17 -- The sole ground of appeal is that the sentence was manifestly excessive. Held, per the Court, granting permission to appeal but dismissing the appeal: 1. The sentence imposed was not manifestly excessive. Criminal Law Consolidation Act 1935 (SA) s 19A; Road Traffic Act 1961 (SA) s 169B; Sentencing Act 2017 (SA) s 3, 47(5)(d), 53, referred to. Bubner v The Queen [2022] SASCA 27, distinguished. Hackett v The Queen [2021] SASCA 32; Hili v The Queen (2010) 242 CLR 520; R v Akol (2020) 284 A Crim R 246; R v Ceruto [2014] SASCFC 5; R v Dundovic (2008) 101 SASR 32; R v Edwards [2016] SASCFC 145, discussed. Abbott v The Queen [2021] SASCA 131; Hilfy v The Queen [2020] SASCFC 72; House v The King (1936) 55 CLR 499; Johnson v The Queen (2004) 78 ALJR 616; Markarian v The Queen (2005) 228 CLR 357; Purdell v The Queen (SACCA, 11 December 1990, Judgment No. 2683, unreported) ; R v Clancy [2013] SASCFC 63; R v Hietanen (1989) 51 SASR 510; R v Nozuhur [2013] SASCFC 81; R v Watkins (2013) 118 SASR 342; R v Whyte [2002] NSWCCA 343, considered. -- 2 of 17 -- BRANSCHEID v THE KING [2023] SASCA 103 Court of Appeal – Criminal: Livesey P, David JA and Nicholson AJA 1 THE COURT: The appellant pleaded guilty to one count of aggravated causing death by dangerous driving, contrary to s 19A(1) of the Criminal Law Consolidation Act 1935 (SA) (‘the CLCA’). The circumstance of aggravation was that there was present in the appellant’s blood a prescribed drug, methylamphetamine. The maximum penalty for this offence is life imprisonment and in the case of an offence involving the use of a motor vehicle, disqualification from holding or obtaining a driver’s licence for a minimum of 10 years or such longer period as the Court orders. 2 On 10 March 2020, the appellant while driving on South Para Road at Kersbrook, moved onto the opposite side of a two-laned road and collided head-on with a vehicle driven by the deceased. At the time of the collision, the appellant had methylamphetamine, morphine and diazepam present in his blood. 3 The sentencing Judge imposed a sentence of nine years and six months imprisonment reduced on account of the appellant’s guilty plea to nine years and nine days imprisonment. A non-parole period of seven years, two months and 19 days was fixed, that being about four-fifths of the head sentence. Both the head sentence and the non-parole period were ordered to commence on 26 July 2022, the date the appellant was remanded in custody. 4 The sentencing Judge also disqualified the appellant from holding or obtaining a driver’s licence for 20 years to commence on the appellant’s release from prison pursuant to s 169B of the Road Traffic Act 1961 (SA). 5 The sole ground of appeal is that the sentence was manifestly excessive. 6 For the reasons that follow, we grant permission to appeal but dismiss the appeal. Circumstances of the offending 7 On 10 March 2020 at about 7:15pm, the appellant was driving north on South Para Road towards Kersbrook in a Peugeot station wagon. He was the only occupant of the vehicle. It was still daylight. The weather conditions were clear, and the road was dry. The signed speed limit along the relevant stretch of South Para Road where the collision occurred was 100km/h. 8 Several road users observed the appellant driving erratically. On multiple occasions, his vehicle was seen swerving across the unbroken white line in the middle of the road and overtaking other road users in a reckless manner. Two road users, Mr Graeme Cole and Ms Denise Cole, were travelling behind the appellant and observed him speeding up and then slowing down, swerving within the correct lane, and crossing over the centre white line onto the opposite side of the road. -- 3 of 17 -- [2023] SASCA 103 The Court 2 They observed this occurring for several minutes. This erratic driving continued until the appellant’s vehicle moved entirely onto the incorrect side of the road and directly into the path of an oncoming vehicle, which had to swerve to the opposite side of the road to avoid a head-on collision with the appellant’s vehicle. 9 Another road user, Ms Lili Detot, was driving in a northerly direction on South Para Road when she observed the appellant driving erratically in her rear view mirror. He was driving in the opposite lane over an unbroken white line. At one point, Ms Detot observed the appellant swerve onto the incorrect side of the road when another vehicle was approaching. The driver of the approaching vehicle was forced to swerve to avoid a head-on collision with the appellant’s vehicle. Ms Detot also observed the appellant speeding up and slowing down, in a similar manner to the observations made by Mr and Mrs Cole. 10 The appellant continued to drive along South Para Road, swerving across the centre white lines onto the incorrect side of the road. A second vehicle travelling in the opposite direction was forced to swerve out of the appellant’s way to avoid a head-on collision. 11 As Ms Detot approached the township of Kersbrook, she observed the appellant ‘jolting’ his vehicle to the right and onto the incorrect side of the road before he would swerve back to the correct side of the road. At one point, the appellant over-corrected causing his vehicle to swerve off the bitumen surface of the road and travel across a dirt verge, creating a large plume of dust. To try and stop the appellant’s vehicle, Ms Detot positioned her vehicle in the middle of the road. The appellant, instead of stopping his vehicle, mounted the kerb and drove around her. 12 Ms Alina Andrew was travelling in a southerly direction on South Para Road in a Ford utility. She was the sole occupant of the vehicle. The appellant drove onto the opposite side of the two-laned road, crossing over a double unbroken white line, and collided head-on with the vehicle driven by Ms Andrew. She died from extensive blood loss caused by a ruptured femoral artery sustained as a result of the collision. 13 There was no evidence that the appellant applied his brakes or attempted to avoid colliding with the deceased’s vehicle. There was no evidence that the appellant was speeding. 14 After the collision, the appellant was assessed at the scene by an SA Ambulance paramedic. She formed the opinion that the appellant was affected either by drugs or alcohol. He was observed to be vague and drowsy. His speech was slow and slurred and he was difficult to understand. The appellant told the paramedic that he had used methylamphetamine and heroin but was unable to say how much he had used. -- 4 of 17 -- [2023] SASCA 103 The Court 3 15 Similar observations to that of the paramedic were made by a member of the traffic camera section of the police and a civilian witness, who both attended at the scene shortly after the collision. 16 A number of people attending at the scene observed the appellant talking loudly into a mobile telephone and acting in an aggressive manner. 17 The appellant later told police that he had no memory of the collision and claimed to have had an epileptic seizure. However, he earlier told the paramedic that he had a good recollection of the collision. The appellant also told police that he was suffering from symptoms of methadone withdrawal and that he had taken a quantity of Valium (diazepam) to combat those symptoms. He said he had been using methadone daily as a treatment for heroin addiction but claimed he had stopped taking it about 11 or 12 days prior to the collision. That was contradicted by records from Drug and Alcohol Services South Australia which revealed that the appellant collected a methadone dose on 6 March 2020, four days prior to the collision. 18 The appellant said he had taken Valium tablets at about 3:00am on the day of the collision but denied using methylamphetamine. He said he last used methylamphetamine at around 9:00pm on 8 March 2020 and estimated that he had consumed less than ‘a point’ (0.1g) of the drug. 19 An analysis of the appellant’s blood showed that it contained 0.20mg of methylamphetamine per litre, approximately 0.01mg of amphetamine per litre, 0.011mg of morphine per litre, 0.55mg of diazepam per litre, and 0.23mg of nordiazepam per litre. 20 Professor Jason White, a pharmacologist, reported that the level of methylamphetamine in the appellant’s system would likely have resulted in him engaging in high-risk driving; impaired his ability to concentrate on the road; and impaired his ability to respond appropriately by slowing his reaction time and impairing his coordination. The presence of diazepam in the appellant’s blood would have further impaired his coordination and concentration. Professor White said it was unlikely that the concentration of morphine in the appellant’s blood would have produced any significant adverse effects on his alertness or behaviour due to his high tolerance of opiate drugs through his long use of methadone. Professor White considered the most likely effect of the morphine would have been to suppress the symptoms of opiate withdrawal after the appellant stopped using methadone. 21 Professor White also explained the possible combined effects of the ingestion of methylamphetamine, morphine and diazepam on the appellant’s driving ability based on the concentration found in his blood. He said: As noted above, methylamphetamine alone would have had significant impairing effects on Mr Branscheid's driving and his risk of being involved in an accident would have been significantly elevated as a result of the effects of methylamphetamine. The type of -- 5 of 17 -- [2023] SASCA 103 The Court 4 accident, drifting off the line of travel and on to the incorrect side of the road, is consistent with the most common type of accident associated with methylamphetamine use. Diazepam could have further increased the impairment in driving due to methylamphetamine and further increased Mr Branscheid's crash risk. In particular, both drugs impair the ability to concentrate on the road and on driving and, as such, impairment is likely to be greater when the two drugs are combined, as was the case for Mr Branscheid. Had he perceived the risk of an accident occurring, Mr Branscheid's ability to take rapid evasive action would have been significantly impaired by the combination of methylamphetamine and diazepam. While morphine has the potential to impair driving, it is unlikely that it had a significant effect on Mr Branscheid's driving due to his tolerance to the effects of opioid drugs; it is unlikely to have significantly altered the effects of methylamphetamine and diazepam. 22 Professor White discounted the appellant’s claims to police that he may have experienced an epileptic seizure before the collision. 23 A psychological report of Dr Lorraine Lim dated 25 July 2022 was tendered to the sentencing Judge. The appellant told Dr Lim that he had been using methylamphetamine, Valium and morphine for a number of days prior to the collision. After conducting an assessment of the appellant, Dr Lim opined that there was a ‘direct nexus between Mr Branscheid’s drug intoxicated state, specifically methamphetamine, opioids, and benzodiazepine (i.e. Valium) and his involvement in the fatal motor collision’. Dr Lim agreed with Professor White that the accident was not the result of an epileptic seizure. Personal circumstances of the appellant 24 At the time of sentencing, the appellant was 46 years old. He was born in Forreston, South Australia, and was raised solely by his mother. He had a positive childhood. Growing up, he shared a close relationship with his mother and maternal grandparents, particularly his grandfather, who was a positive role-model. He spent much of his childhood at his grandparents’ farm in Kersbrook, which his mother later inherited upon their deaths. 25 The appellant completed primary school at St John’s Lutheran School in Lobethal and years eight to 10 at Pedare Christian College. He did not have any significant behavioural issues and consistently achieved above-average grades. In year 11, however, the appellant transferred to Birdwood High. It was during that year that the appellant began engaging in problematic behaviour including drug use and fighting, which resulted in multiple periods of suspension. The appellant left school at the end of year 11. 26 After leaving school, the appellant obtained work at a concreting factory. From the age of 17 to 19, he worked for his grandfather, who was a tiler by trade. In 1995, when he was 19 years of age, the appellant was convicted of the offences of armed robbery and robbery in company, which he committed whilst under the influence of drugs. For that offending, the appellant served four years in prison before being released on parole. -- 6 of 17 -- [2023] SASCA 103 The Court 5 27 Upon being released on parole, the appellant commenced full-time work as a delivery truck driver. He was employed intermittently in that role for 10 to 12 years until 2013, when he developed an epileptic condition and lost his driver’s licence after having a seizure at work. The appellant has been largely unemployed since that time. 28 The appellant has a daughter from a long-term relationship that ended in early 2014. He continued to co-parent his daughter until he was sentenced for a drug trafficking offence in 2017. After being released on parole in 2018, the appellant spent a short period living in a boarding house at Salisbury before returning to live with his mother at Kersbrook in early 2019. He continued to live there until June 2022 before moving into a share-house in Bowden. 29 The appellant has a long history of drug abuse. He commenced using cannabis when he was 16 years old. At age 17, he started using amphetamines, and eventually became addicted to methylamphetamine when he was 19 years old. The appellant reportedly stopped using cannabis when his daughter was born in 2005, and from that time until 2013, his drug use was limited. It was not until he became unemployed in 2013 that he began smoking cannabis every day and resumed using methylamphetamine. 30 In the months leading up to his remand in custody in early 2017, the appellant was smoking up to $500 worth of methylamphetamine per day. In 2016, he began misusing methadone and became progressively more dependent on that drug until his arrest for the drug trafficking offence in 2017. The appellant also began misusing Valium after initially being prescribed the medication to counteract withdrawal from amphetamines. 31 In 2017, whilst serving his sentence for the drug trafficking offence, the appellant commenced an opiate substitution program (methadone). Upon his release on parole in 2018, he continued to remain compliant with his methadone prescription and engaged in weekly counselling sessions at Drug Arm in Hillbank and at Relationships Australia. At that time, the appellant was drug-free. However, when the appellant started living at Kersbrook in 2019, his counselling sessions ceased and, approximately one week after his parole ended, he relapsed into the use of methylamphetamine, cannabis and benzodiazepines. He also continued to use methadone. 32 The appellant claimed that about a week or so before the collision, he stopped taking methadone as it was making him feel lethargic and depressed. To counteract the effects of withdrawal from methadone, he started abusing morphine tablets and Valium. 33 In the days preceding the offending, the appellant had been staying with friends and had been ingesting a combination of methylamphetamine, morphine and Valium. The appellant told Dr Lim that he only had ‘flashes of memory of the accident’ because of the drug induced state he was in at the time. After the -- 7 of 17 -- [2023] SASCA 103 The Court 6 collision, he continued to use illicit substances as a means of coping with the stress and depression arising from the criminal proceedings in relation to this matter. 34 Dr Lim, in her psychological report, said that the appellant appeared genuinely remorseful for his offending. At sentencing, the appellant was too distressed to read out an apology he had written to the family of the deceased and so his counsel did so on his behalf. The sentencing Judge accepted his expressions of remorse as genuine. 35 Dr Lim diagnosed the appellant with Polysubstance Use Disorder and Antisocial Personality Disorder, though she considered that his dysfunctional personality traits were only mild to moderate in severity. Dr Lim expressed the opinion that the appellant’s antisocial attitudes likely contributed to his relapse into drug use shortly after his parole expired in 2019. She said that he displayed several cognitive distortions in that regard. Moreover, instead of seeking professional assistance in the form of counselling or psychotherapy to manage the stress and depression arising from the criminal proceedings in relation to this matter, the appellant continued to abuse illicit substances as an emotional coping strategy. She considered that such behaviours were indicative of his lack of insight into his psychological functioning and offending conduct. 36 As to his risk of re-offending, Dr Lim concluded: … I am of the opinion that Mr Branscheid is of ‘High’ risk of re-offending in a drug-related manner at the time of this assessment. This risk estimate is predicated on his ongoing use of illicit drugs, his poor insight, his current absence of professional support, and his lack of protective factors in the wider community. While his mother appears to be a source of support, she is not considered to be a protective or mitigating risk factor since Mr Branscheid was living with her at the time of this offending and yet, he had suffered a drug relapse and had re-offended. Consequently, I consider Mr Branscheid's prospects for rehabilitation and his prognosis at present to be poor. 37 Dr Lim recommended that the appellant engage in a rehabilitation program to reduce his risk of recidivism. Dr Lim also recommended that the appellant be referred to a psychologist for individual intervention to address his poor emotional regulation, anti-social attitudes, and cognitive distortions with regard to drug use and to improve his problem-solving skills, noting that this targeted intervention is only available in the community. Dr Lim cautioned that any rehabilitation program would only be as effective as the appellant’s commitment towards a positive change and taking personal ownership of his lifestyle and his choices. 38 The appellant has an extensive criminal history and is a ‘serious repeat offender’ for the purposes of s 53 of the Sentencing Act 2017 (SA) (‘the Sentencing Act’). 39 As previously mentioned, the appellant was first sentenced in 1995, when he was 19 years old, for offences of armed robbery and robbery in company. Two weeks later, he was convicted of offences of carrying an offensive weapon, failing to comply with a bail agreement and threatening to cause harm. In 2002, he was -- 8 of 17 -- [2023] SASCA 103 The Court 7 convicted and sentenced to five years, 10 months and 14 days imprisonment with a non-parole period of two years and six months for offences of manufacturing methylamphetamine, taking part in the manufacture of methylamphetamine, possession of a firearm while not holding a firearm's licence, illegally using a motor vehicle, and driving at a speed that was dangerous to the public. In 2007, the appellant was placed on a bond for two counts of assault causing harm. He was also convicted of driving dangerously to escape police pursuit and was disqualified from holding or obtaining a driver's licence for three years. In 2008, he received a suspended sentence for driving whilst disqualified. In 2015, the appellant was convicted of several counts of contravening an intervention order and various cannabis offences. In 2016, the appellant was imprisoned for the offences of unlawful possession and providing false personal details. In March 2017, he was imprisoned for six weeks and 30 days for various offences, including driving whilst disqualified, contravening an intervention order and theft. Later that year, he was convicted of three counts of assault and imprisoned for three months. In November 2017, the appellant was convicted of the offences of trafficking in methylamphetamine and carrying an offensive weapon. For that he was imprisoned for a total of two years, five months, two weeks and three days. He was also convicted without further penalty for possessing prescription medication. 40 It is evident that the appellant has an extensive history of criminal offending. 41 On 21 July 2020, about four months after committing the offence of aggravated causing death by dangerous driving (the subject of this appeal), the appellant committed the offence of driving a vehicle (a motorcycle) with a combination of cannabis and methylamphetamine in his oral fluid. He was convicted of that offence on 13 January 2021 and sentenced to imprisonment for four months and six days. He was also disqualified from holding or obtaining a driver’s licence for six months. Sentencing remarks 42 In his remarks, the sentencing Judge considered this offending to be a very serious example of an offence of this kind and at the higher end of the range of objective seriousness: Based upon all of the evidence, I assess your dangerous driving to be at the higher end of objective seriousness for an offence of this kind. Your moral culpability or blameworthiness is also high, as you deliberately drove in the knowledge that you had been consuming drugs. You told Dr Lim, a forensic psychologist, that you had been consuming methylamphetamine, morphine tablets and Valium over a number of days before the collision while you were staying with friends in Adelaide before you made the journey back home to Kersbrook. You presented a totally unacceptable risk to the public that evening, as the many near misses reflect. Very sadly for the deceased, it appeared as though such a fatal head-on collision was always going to be the inevitable consequence of your being on the road affected, as you so obviously were, by the drugs you had consumed. -- 9 of 17 -- [2023] SASCA 103 The Court 8 There are serious repercussions for you as a result of your patently dangerous driving that evening. There is very little to mitigate your offending. 43 Before imposing a sentence, the sentencing Judge set out the primary and secondary purposes of sentencing. His Honour said: The primary purpose of sentencing is to protect the safety of the community, which naturally includes the general public being protected from those who drive dangerously while affected by drugs. It must always be remembered that you were not involved in a mere accident, but that you committed a very serious crime in a field of human activity which is of a binding concern to the community. An innocent motorist has lost her life as a result of your dangerous driving which so easily could have been avoided if you had not been so affected by drugs contributing to you driving in such a dangerous manner. Furthermore, in this case, the secondary purposes of sentencing are very important, including ensuring that you are punished for the offence; that you are held accountable to the community for what you did; the need to publicly denounce dangerous driving such as yours which results in the death of another person and to deter you and others from committing offences like this. Of course, the sentence imposed must also reflect your personal circumstances and promote your rehabilitation where possible. In your case, you have had opportunities to reform and address your drug addiction which has, on the whole, not been terribly successful. As Dr Lim reported, she considered your prospects of rehabilitation and prognosis to be poor. I agree with that assessment. 44 The sentencing Judge proceeded to impose a head sentence of nine years and six months imprisonment, reduced by five per cent on account of the appellant’s guilty plea to nine years and nine days imprisonment. 45 It was common ground at first instance, and on appeal, that the appellant was a serious repeat offender. However, the sentencing Judge considered that a disproportionate sentence was not warranted. Accordingly, his Honour fixed a non-parole period of seven years, two months, and 19 days, that being the mandated four-fifths of the head sentence. His Honour also disqualified the appellant from holding or obtaining a driver’s licence for 20 years. Manifest excess 46 The question of whether a sentence is manifestly excessive is to be determined by asking whether, after considering all the circumstances relevant to sentence, and notwithstanding that no specific error of reasoning may be apparent, the sentence imposed was unreasonable or plainly unjust.1 The principles 1 House v The King (1936) 55 CLR 499 at 504-505 per Dixon, Evatt and McTiernan JJ; Markarian v The Queen (2005) 228 CLR 357 at [25] per Gleeson CJ, Gummow, Hayne and Callinan JJ; Hilfy v The Queen [2020] SASCFC 72 at [36]-[38] per Nicholson J (with whom Peek and Stanley JJ agreed); Bubner v The Queen [2022] SASCA 27 at [31] per Livesey P, Doyle and David JJA. -- 10 of 17 -- [2023] SASCA 103 The Court 9 governing the task for the appellate court were explained by this Court in Hackett v The Queen:2 The administration of the criminal law involves individualised justice. The imposition of a just sentence on an offender in a particular case is an exercise of judicial discretion concerned with doing justice in that case. The exercise of the discretion that the law reposes in a sentencing judge does not yield a single correct sentence. Absent a specific error it is only if the sentence is found to be “unreasonable or plainly unjust” that a challenge of manifest excess will succeed. A sentence which is unreasonable or plainly unjust for no reason other than that it is manifestly too long or too short is a sentence which has not been imposed according to rules of reason and justice. It is not sufficient for this court to conclude that it would have come to a different decision to the one reached by the sentencing judge. The judgment is a discretionary one and what is required is that the sentencing judge must take into account all relevant (and only relevant) considerations in forming the conclusions reached. Judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies. To observe that a sentence is “very heavy” when compared with other sentences is not, without more, to conclude that it exceeded the bounds of the sentencing judge's discretion. (Citations omitted) 47 This Court will only intervene if the sentence is unreasonably or plainly unjust; that is to say, outside the permissible range of sentences for the offender and the offence. It is not sufficient for this Court to merely conclude that it would have come to an alternative decision from that reached by the sentencing Judge, or that the sentence imposed is markedly different from the sentences imposed in other cases.3 48 In assessing whether a sentence is manifestly excessive, it is necessary to consider all matters relevant to the determination of a sentence, including the maximum penalty for the relevant offending, where the objective circumstances of the offending sit in the scale of seriousness of crimes of that type, and the personal circumstances of the offender. Ultimately, however, manifest excess or inadequacy is a conclusion and may not permit of ‘lengthy exposition’.4 49 In applying this approach, it needs to be borne in mind that there is no single correct sentence, and sentencing judges should be allowed ‘as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies’.5 50 The appellant contended that, while the offending was attended by several serious features, the sentence was outside of the permissible range and was ‘plainly 2 [2021] SASCA 32 at [8] per Kelly P, Lovell and Livesey JJA. 3 Hili v The Queen (2010) 242 CLR 520 at [59] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ. 4 Hili v The Queen (2010) 242 CLR 520 at [59] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ. 5 Markarian v The Queen (2005) 228 CLR 357 at [27] per Gleeson CJ, Gummow, Hayne and Callinan JJ citing Johnson v The Queen (2004) 78 ALJR 616 at [5] per Gleeson CJ, [26] per Gummow, Callinan and Heydon JJ. -- 11 of 17 -- [2023] SASCA 103 The Court 10 wrong’. It was submitted that the sentencing Judge gave insufficient weight to the appellant’s remorse and contrition, and the need to fashion a sentence which promoted his rehabilitation. The appellant further submitted that the length of the licence disqualification, when considered in conjunction with the term of imprisonment imposed, was disproportionately high. 51 The appellant emphasised several previous sentences which involved serious examples of this offence and for which varying terms of imprisonment, but lesser periods of licence disqualification, were imposed. Whilst acknowledging that the sentencing of an offender for this offence calls for an individualised approach, the appellant contended that a review of other sentences demonstrated that the sentence imposed was outside the permissible range and required correction. 52 In sentencing for the offence of aggravated causing death by dangerous driving, the objective seriousness of the offending and personal circumstances of the offender will inevitably vary from case to case. Accordingly, a comparison of cases is generally of limited use. Notwithstanding that qualification, an analysis of the range of sentences imposed for similar offending may still provide a general guide when considering whether a sentence is manifestly excessive.6 53 R v Dundovic7 (‘Dundovic’) was a Crown appeal. The offending in that case was described as being ‘of the worst kind’.8 Over the course of the morning in February 2007, the respondent was engaged in two police pursuits at such high speeds (at least 100km/h) that police terminated both pursuits. Later, a third police patrol embarked on a high-speed pursuit of the respondent which resulted in a fatal collision. At the time of the collision, the respondent was driving without headlights and had both amphetamine and methamphetamine in his blood. In addition, he was on parole as well as subject to a bail agreement and in breach of his bail conditions. Initially, the respondent was sentenced to imprisonment for five years and eight months. The Court of Criminal Appeal, in holding that the sentence was manifestly inadequate, said:9 Parliament amended s 19A of the CLCA with effect from 30 June 2006, to create the category of an aggravated offence, attracting life imprisonment, and defining an aggravated offence in s 5AA. The fact that the maximum punishment for these offences is life imprisonment demonstrates the seriousness with which Parliament views offences against s 19A. This is something that must be acknowledged by sentencing judges. It does not follow that sentences for all offences against s 19A, or even for all offences attracting the maximum punishment, must increase: see R v Hietanen (1989) 51 SASR 510 at 516, King CJ. But due regard must be paid to the seriousness of an offence, having regard to the maximum punishment stipulated by Parliament. 54 In that case, permission was granted, and the respondent was re-sentenced to 11 years and two months imprisonment with a non-parole period of nine years and 6 R v Nozuhur [2013] SASCFC 81 at [55] per Nicholson J citing R v Clancy [2013] SASCFC 63 at [63] per Sulan and Blue JJ. 7 (2008) 101 SASR 32. 8 R v Dundovic (2008) 101 SASR 32 at [16] per Doyle CJ (with whom Bleby and Anderson JJ agreed). 9 R v Dundovic (2008) 101 SASR 32 at [26] per Doyle CJ (with whom Bleby and Anderson JJ agreed). -- 12 of 17 -- [2023] SASCA 103 The Court 11 two months; and disqualified from holding or obtaining a driver’s licence for not less than 10 years. 55 In R v Ceruto10 (‘Ceruto’), the Court of Criminal Appeal dismissed an appeal against sentence. The appellant in that matter, while significantly under the influence of drugs and alcohol, forced his unwell pregnant fiancée into his vehicle. He was driving above 100km/h along a suburban street where the signed speed limit was 50km/h when his vehicle collided with a stobie pole. The appellant’s fiancée died as a result of her injuries, as did her unborn child. He fled the scene and rendered no assistance, exhibiting a ‘callous’ disregard for the welfare of his fiancée and unborn child. 56 The appellant was 30 years of age at the time of the offending and had a long history of alcohol and substance abuse, a history of offending, and had been unemployed for almost a decade prior to the offending. 57 The sentencing Judge described the offending as ‘egregious’ and proceeded to impose a head sentence of six years and 10 months. The appellant was disqualified from holding or obtaining a driver’s licence for 10 years. The appellant appealed on the sole ground that the sentence was manifestly excessive. The Court of Criminal Appeal held that the sentence, whilst ‘at the high end’, was not manifestly excessive. 58 R v Edwards (‘Edwards’) was a Crown appeal.11 The respondent was driving home from work when he travelled onto the wrong side of the road and collided with another vehicle, causing the death of the driver of the other vehicle. The respondent had tetrahydrocannabinol (‘THC’) in his system. The appellant was sentenced for numerous offences. 59 For the offence of aggravated causing death by dangerous driving, the respondent was sentenced to three years and two months imprisonment. A non-parole period was fixed at two years and six months. The respondent was disqualified from holding or obtaining a driver’s licence for 10 years. For all other offences, the respondent was sentenced to imprisonment for one year and eight months with a non-parole period of 12 months. A suspended sentence of 21 days was revoked. All sentences were ordered to be served cumulatively. A total sentence of four years 10 month and 21 days with a non-parole period of three years and six months was imposed. 60 On appeal, the sentence was held to be manifestly inadequate. On re-sentence for the offence of aggravated causing death by dangerous driving, the respondent was sentenced to imprisonment for four years and six months, reduced by 10 per cent for the guilty plea to four years and one month imprisonment, with the mandatory non-parole period fixed at three years and four months. For all other offences, the respondent was re-sentenced to imprisonment for two years and five 10 [2014] SASCFC 5. 11 [2016] SASCFC 145. -- 13 of 17 -- [2023] SASCA 103 The Court 12 months, ordered to be served cumulatively on the earlier sentence and the revoked suspended sentence of 21 days, resulting in a head sentence of six years, six months and 21 days. A non-parole period of four years was fixed. 61 R v Akol (‘Akol’) was a Crown appeal.12 The respondent pleaded guilty to one count of aggravated causing death by dangerous driving. The sentencing Judge commenced with a starting point of four years and six months which was reduced by 30 per cent on account of the respondent’s guilty plea to three years, one month and 25 days imprisonment. A non-parole period of two years, six months and eight days was fixed. The respondent was disqualified from holding or obtaining a driver’s licence for 13 years. 62 The respondent was aged 19 at the time of the offending. The victim was his girlfriend and a passenger in the vehicle at the time of the collision. Immediately prior to the collision, the respondent was travelling at a speed exceeding 100 km/h in a 60 km/h zone and on the wrong side of the road whilst racing another vehicle. The respondent had a blood alcohol level of 0.22 per cent at the time of the offending. The drug MDMA was also detected in his blood. He was driving in breach of a court ordered licence disqualification. Four months earlier, the respondent had been involved in another collision where he drove onto the wrong side of an expressway and collided head-on with another vehicle. On that earlier occasion, he had returned a blood alcohol reading of 0.14g of alcohol per 100ml of blood. 63 On appeal, the Court held the sentence was manifestly inadequate and re-sentenced the respondent to six years and six months, reduced on account of his guilty plea to four years, six months, two weeks and four days imprisonment. A non-parole period of three years, seven months and three weeks was fixed, and the respondent’s licence disqualification was increased to 15 years. 64 In the more recent decision of Bubner v The Queen13 (‘Bubner’) the appellant pleaded guilty to two counts of aggravated causing death by dangerous driving. The factual circumstances of the case were that the appellant, while driving on Victor Harbor Road, traversed onto the wrong side of the road, and collided head-on with a vehicle occupied by the two deceased. At the time of the collision the appellant had methylamphetamine and amphetamine present in her blood. She was not speeding nor driving in an aggressive or reckless manner prior to the collision. She had a limited history of traffic offences. 65 The appellant was sentenced to 12 years imprisonment reduced on account of her guilty plea to nine years imprisonment with a non-parole period fixed at seven years, two months, and 12 days, that being the mandatory four-fifths of the head sentence. The appellant was disqualified from holding or obtaining a licence for 10 years. The sole ground of appeal was that the sentence imposed was 12 (2020) 284 A Crim R 246. 13 [2022] SASCA 27. -- 14 of 17 -- [2023] SASCA 103 The Court 13 manifestly excessive. The appeal was allowed and, after conducting a review of recent sentences, including those imposed in Akol and Edwards, this Court determined that a notional head sentence of six years imprisonment for each offence was appropriate, with three years to be served concurrently to reflect the single course of conduct, resulting in a notional head sentence of nine years imprisonment. This was further reduced by 25 per cent on account of the appellant’s early guilty plea to six years and nine months imprisonment with a non-parole period fixed at five years and five months, that being four-fifths of the head sentence. 66 In the present case, the sentencing Judge considered the appellant’s driving to be ‘worse than that’ of the appellant in Bubner. We agree with that observation. The offending in this case was, as his Honour appropriately observed, at the ‘higher end of objective seriousness for an offence of this kind’. The appellant’s conduct was reckless and extreme. He engaged in erratic, high-risk driving over a sustained period, placing numerous other road users at risk before the collision. The manner of his driving indicated that he gave no thought, nor concern, to the risk of harm to other road users. He had been consuming methylamphetamine, morphine and Valium in the days preceding the offending and yet chose to drive whilst under the influence of those drugs, knowing that this would pose a potentially catastrophic risk to members of the public. At the time of the collision, those drugs remained in his system. 67 The offending in the present case is at least as serious as the offending in Dundovic, Ceruto, Edwards, Akol and Bubner. 68 The sentencing Judge correctly noted that the sentence needed to reflect the seriousness of the offending which ended the life of an innocent member of the community. Deterrence and protection of the community are significant factors when considering an appropriate sentence for offending of this kind.14 Deterrence in this instance includes not only specific deterrence but, more particularly, general deterrence. Offending of this kind is prevalent. Courts are obliged to fix sentences of sufficient severity that they will deter others from driving in a manner dangerous to the public, especially when offenders are affected by drugs or alcohol.15 69 The appellant accepted that his offending was attended by the very serious features outlined above but contended that the sentencing Judge gave insufficient weight to his expressions of remorse and prospects of rehabilitation. The appellant emphasised that he would not be able to receive targeted or one on one counselling whilst incarcerated. These contentions formed particulars of the overarching complaint of manifest excess. 14 R v Watkins (2013) 118 SASR 342. 15 R v Watkins (2013) 118 SASR 342 at [25] per Stanley J (with whom Kourakis CJ and Vanstone J agreed). -- 15 of 17 -- [2023] SASCA 103 The Court 14 70 While the appellant’s remorse was a relevant mitigating factor to be taken into account by the sentencing Judge,16 that consideration had to be measured against the circumstances of the offending and the appellant’s personal circumstances, including his extensive criminal antecedents and his real risk of re-offending. 71 As concluded by Dr Lim (and as accepted by the sentencing Judge), the appellant’s prospects of rehabilitation were poor. He has an entrenched history of illicit drug use linked to past criminal conduct, and he has in the past experienced difficulties in abstaining from drug use. Moreover, and significantly in respect of his risk of re-offending, on 21 July 2020, just four months after causing the death of the deceased, the appellant was convicted of driving a vehicle with a combination of cannabis and methylamphetamine in his system. That conduct militated against his prospects of rehabilitation, at least in the short term. As his Honour appropriately observed, there was ‘very little to mitigate [the appellant’s] offending’ in this case. 72 When set against those considerations, the appellant’s remorse and prospects of rehabilitation, do not support a conclusion that the head sentence was manifestly excessive. 73 The serious features of the appellant’s offending, including his willingness to endanger the public by flagrantly violating the road rules, and principles of both general and specific deterrence, as well as the protection of the community, called for a significant sentence. 74 In our view, while the head sentence of nine years and nine days (after reduction for a guilty plea) was at the high end of the permissible range for this offending and offender, it was not manifestly excessive. 75 A further particular advanced by the appellant is that the licence disqualification of 20 years of itself rendered the sentence manifestly excessive, or that when looked at in combination with the sentence of imprisonment imposed, the combined effect was a manifestly excessive sentence. 76 Under s 19A(1) of the CLCA, the disqualification of an offender’s licence is mandatory upon being convicted of an offence under that provision. The minimum disqualification period is 10 years, irrespective of whether the offence was a basic or aggravated offence. Mandatory disqualification of an offender’s licence serves both a punitive and protective function. In doing so it serves the primary purpose of sentencing, which is the protection of the community.17 77 For the reasons we have already set out, the appellant posed a very real and significant risk to the community. That risk well exceeded that of an ordinary first 16 Abbott v The Queen [2021] SASCA 131 at [18] per Livesey P, Doyle JA and Stanley AJA. 17 Sentencing Act 2017 (SA) s 3; see R v Akol (2020) 284 A Crim R 246 at [125] per Livesey J (with whom Nicholson and Bleby JJ agreed). -- 16 of 17 -- [2023] SASCA 103 The Court 15 offender. The appellant has a history of drug use, and prior convictions for traffic offences and dangerous driving (outlined earlier) and was apprehended driving with drugs in his system only four months after the offending the subject of this appeal. To meet the protective purposes for which the mandatory disqualification regime exists, a greater period of disqualification was required than, for example, a first-time offender or an offender whose risk of recidivism was low.18 The sentencing Judge had appropriate regard to the factors which were indicative of the appellant’s risk to the public. We are satisfied that the disqualification period imposed by his Honour was necessary to protect the safety of the public. Any lesser disqualification period would not have adequately served that purpose. 78 We are not satisfied that the period of licence disqualification, combined with the period of imprisonment, rendered the sentence as a whole manifestly excessive. Conclusion 79 We grant permission to appeal but dismiss the appeal. 18 See, for example, Purdell v The Queen (SACCA, 11 December 1990, Judgment No. 2683, unreported). -- 17 of 17 --