TY GEORGE MARTAIN v THE KING [2023] SASCA 104

On Appeal from DISTRICT COURT OF SOUTH AUSTRALIA (HER HONOUR JUDGE TELFER) DCCRM-20-188 Appellant: TY GEORGE MARTAIN Counsel: MR M ANDERS - Solicitor: TINDALL GASK BENTLEY LAWYERS Respondent: THE KING Counsel: MS A CAIRNEY WITH MS E MACGREGOR - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) Hearing Date/s: 07/06/2023 File No/s: SCCRM-22-017834 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. MARTAIN v THE KING [2023] SASCA 104 Judgment of the Court of Appeal (The Honourable Justice Lovell, the Honourable Justice Bleby and the Honourable Justice David) 28 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. Following a trial by jury, the appellant was found guilty of one count of aggravated causing death by dangerous driving, contrary to s 19A(1) of the Criminal Law Consolidation Act 1935 (SA). On 12 March 2019, while driving on Victor Harbor Road, the appellant fell asleep at the wheel of his vehicle, causing it to drift entirely onto the opposite side of the road and collide head-on with a vehicle driven by the deceased. At the time of the collision, there was present in the appellant’s blood a concentration of 0.08 grams or more of alcohol in 100 millilitres of blood. The sentencing Judge imposed a sentence of five years imprisonment with a non-parole period fixed at four years, being the mandatory minimum of four-fifths of the head sentence. The sentencing Judge disqualified the appellant from holding or obtaining a driver’s licence for 10 years to commence at the expiration of the non-parole period. -- 1 of 26 -- The sentencing Judge declined to order that the sentence be suspended or served on home detention. The appellant sought permission to appeal against sentence on the following grounds: 1. The sentencing Judge erred in assessing the objective seriousness of the offence, in that her Honour failed to acknowledge that the fatal collision was unlikely to have occurred but for the effect of the appellant’s undiagnosed sleep disorder (Ground 1). 2. The sentencing Judge erred in finding that the appellant made a comment to a witness that he was ‘way over’ (the legal limit to drive) in circumstances where the finding was not open on the evidence (Ground 2). 3. The sentencing Judge erred in having regard to delay and in doing so punished the appellant for his not guilty plea (Ground 3). 4. The sentencing Judge erred in giving insufficient weight to the appellant’s positive personal circumstances, and his undiagnosed sleep disorder, in assessing his mental condition and the existence of a cognitive impairment, as opposed to its relevance being confined to the cause of the collision (Ground 4). 5. The sentence was manifestly excessive (Ground 5). 6. The sentencing Judge erred in failing to order that the sentence be served on home detention (Ground 7). Held, per the Court granting permission to appeal on Grounds 4, 5 and 7 but dismissing the appeal: 1. The sentencing Judge had proper regard to the undiagnosed sleep disorder in assessing the appellant’s moral culpability and correctly characterised the objective seriousness of the offending. 2. It was open to the sentencing Judge to rely on the evidence that the appellant said he ‘was way over’ (the legal limit). Her Honour did not use the impugned comment to elevate the objective seriousness of the offending beyond that which was consistent with the guilty verdict. There was no denial of procedural fairness. 3. The sentencing Judge had proper regard to the sentiments expressed in the victim impact statements as to delay, and did not use those statements as a basis to punish the appellant for his plea of not guilty. 4. The sentence was not manifestly excessive. 5. There was no error by the sentencing Judge in declining to order the sentence be served on home detention. To have made such an order in this case would have been inappropriate given the serious features of the offending and would have been inconsistent with the approach adopted by this Court in similar cases. Criminal Law Consolidation Act 1935 (SA) s 19A(1); Sentencing Act 2017 (SA) ss 3, 4, 47(5)(d), 48(2), 48(3), 70, 71, referred to. Spanjol v The Queen (2016) 55 VR 350, distinguished. R v Dell (2016) 126 SASR 571; R v Henderson (2023) 104 MVR 68; R v Payne (2004) 89 SASR 49; Siganto v The Queen (1998) 194 CLR 656, discussed. Arpaci v The Queen (2020) 91 MVR 414; Bubner v The Queen [2022] SASCA 27; Director of Public Prosecutions v Kandel [2021] VCC 2183; George v The Queen (2017) 80 MVR 436; Guseli v The Queen (2019) 87 MVR 340; Hilfy v The Queen [2020] SASCFC 72; Hili v The Queen (2010) 242 CLR 520; House v The King (1936) 55 CLR 499; Johnson v The Queen (2004) 78 ALJR 616; Markarian v The Queen (2005) 228 CLR 357; Papagelou v The Queen (2022) 99 MVR 232; Pateras v The Queen (2021) 139 SASR 549; R v Akol (2020) 284 A Crim R 246; R v Branscheid [2023] SASCA 103; R v Ceruto [2014] SASCFC 5; R v Dundovic (2008) 101 SASR 32; R v Johnston (1985) 38 SASR 582; R v Morse (1979) 23 SASR 98; R v Singh (2011) 111 SASR 219; R v Trewren [2023] SASCA 100; R v Watkins (2013) 118 SASR 342; R v Wooldridge (2015) 123 SASR 422, considered. -- 2 of 26 -- -- 3 of 26 -- -- 4 of 26 -- MARTAIN v THE KING [2023] SASCA 104 Court of Appeal – Criminal: Lovell, Bleby and David JJA 1 THE COURT: On 7 December 2022, after being found guilty following a trial by jury, the appellant was sentenced for 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 maximum penalty for this offence is imprisonment for life and, in the case of an offence involving the use of a motor vehicle, disqualification from holding or obtaining a driver’s licence for 10 years or such longer period as the court orders.1 2 The circumstance of aggravation alleged that there was present in the appellant’s blood a concentration of 0.08 grams or more of alcohol in 100 millilitres of blood. 3 The appellant was sentenced to five years imprisonment with a non-parole period fixed at four years, being four-fifths of the head sentence.2 Additionally, the sentencing Judge disqualified the appellant from holding or obtaining a driver’s licence for 10 years, commencing at the expiration of the non-parole period. Both the head sentence and the non-parole period commenced on 7 December 2022. 4 The sentencing Judge declined to order that the sentence be suspended or served on home detention. 5 The appellant now seeks permission to appeal against sentence on the following grounds:3 1. The sentencing Judge erred in assessing the objective seriousness of the offence, in that her Honour failed to acknowledge that the fatal collision was unlikely to have occurred but for the effect of the appellant’s undiagnosed sleep disorder (Ground 1). 2. The sentencing Judge erred in finding that the appellant made a comment to Mr Jack Wagenknecht that he was ‘way over’ (the legal limit to drive) in circumstances where the finding was not open on the evidence (Ground 2). 3. The sentencing Judge erred in having regard to delay and in doing so punished the appellant for his not guilty plea (Ground 3). 4. The sentencing Judge erred in giving insufficient weight to the appellant’s positive personal circumstances, and his undiagnosed sleep disorder, in assessing his mental condition and the existence of a 1 Criminal Law Consolidation Act 1935 (SA) s 19A(1)(a)(ii). 2 Sentencing Act 2017 (SA) s 47(5)(d). 3 Ground 6 was abandoned. -- 5 of 26 -- [2023] SASCA 104 The Court 2 cognitive impairment, as opposed to its relevance being confined to the cause of the accident (Ground 4). 5. The sentence was manifestly excessive (Ground 5). 6. The sentencing Judge erred in failing to order that the sentence be served on home detention (Ground 7). 6 The question of permission to appeal on all grounds was referred to this Court for consideration. 7 For the reasons that follow, permission is granted on Grounds 4, 5 and 7 but the appeal is dismissed. Circumstances of the offending 8 On 12 March 2019, the appellant was driving his employer’s vehicle, an Isuzu light truck, along Victor Harbor Road. He was travelling from his employer’s home at Pages Flat to his home in Findon. The appellant had worked about a ten-hour day as a carpenter and, before travelling home, had attended a friend’s house where he consumed at least five to six cans of West End beer, each approximately 1.3 standard drinks. Rather than spending the night in Pages Flat, the appellant decided to drive home. 9 Shortly after 9:30pm, the appellant drove past the Seaford Road intersection, heading in the direction of Adelaide. Ms Nadine Varga (‘the deceased’) was driving on Victor Harbor Road in the opposite direction, heading towards her home at McCracken. The appellant’s vehicle drifted across the centre line and entered the opposite lane causing a head-on collision with the vehicle driven by the deceased. It was not disputed at trial that, at the time of the collision, the appellant’s vehicle was entirely on the wrong side of the road. 10 The impact of the collision caused the deceased’s vehicle to rotate 180 degrees and come to a rapid stop on the side of the road, facing the opposite direction to the direction she had been travelling in. The appellant’s vehicle was damaged in the collision and, after continuing to travel in a westerly direction for a short distance, came to rest on an embankment alongside the road. The reconstruction evidence suggested that the appellant had not applied the brakes prior to the collision (although, this was also explained by the steering column having been broken at the point of impact). 11 Police attended the scene just before 10:00pm. The appellant was subsequently taken to Christies Beach Police Station where he submitted to a breath test at approximately 11:25pm which returned a result of 0.093 grams of alcohol per 100 millilitre of blood. He was then taken to the Noarlunga Hospital, where three blood samples were extracted at 1:40am on the following morning, two of which were later sent to Forensic Science South Australia (‘FSSA’) for testing. The result from the original blood test was 0.068 grams of alcohol per 100 -- 6 of 26 -- [2023] SASCA 104 The Court 3 millilitres of blood.4 At trial, Professor Jason White relied on that data to estimate that, at the time of the collision, the appellant’s blood alcohol concentration was between 0.108 and 0.149 with the median result being 0.128 per cent.5 Professor White opined that the volume of alcohol required to be consumed to achieve that concentration of blood alcohol would have been no less than five full strength beers (or seven to eight cans of West End beer).6 The parties’ cases at trial 12 There was no dispute at trial that the appellant was driving the vehicle at the time of the collision nor that the appellant’s driving caused the deceased’s death. The contentious issue was whether the appellant was driving dangerously at the time of the collision or sufficiently contemporaneously to the point of impact. The prosecution alleged that the appellant had consumed about seven or eight cans of West End beer in the hours prior to the collision, and that he was suffering from fatigue by reason of having been awake for nearly 16 hours, and having worked a 10-hour day, in addition to the sedative effects of his alcohol consumption. The prosecution case was, primarily, that the appellant’s driving, whilst intoxicated and fatigued, was dangerous in that a reasonable person in his circumstances would have appreciated that he was at real risk of falling asleep at the wheel. 13 The prosecution relied on the evidence of Professor Jason White as to the effect of alcohol (at the appellant’s blood alcohol level) and fatigue on a person’s driving ability. Professor White agreed that the effects of fatigue on an individual’s driving ability are very similar to that of alcohol (but not the same). He said fatigue, like alcohol, can impact a person’s ability to concentrate and maintain effective control of the vehicle. He said: … [T]here have been studies showing that if a person is sleep deprived obviously they kind of lapse into what are sometimes called micro sleeps, and the same can occur with alcohol and they can be essentially additive in their effect. So a person affected by alcohol and sleep deprivation is more likely to fall into those brief periods of kind of loss of consciousness of sleep before awakening and continuing whatever they’re doing. 14 Professor White explained that alcohol consumption and sleep deprivation have an additive impact on a driver’s capacity to stay awake and control a vehicle whilst driving. 15 On the other hand, the defence case was that the appellant suffered from an undiagnosed sleep disorder (parasomnia) of which he had no knowledge prior to the collision. It was the defence case that the appellant experienced no feelings of tiredness or intoxication, and the onset of sleep came upon him without warning. On the defence case, the appellant’s underlying sleep disorder caused him to lose 4 There was also a more favourable result of 0.062 per cent which was relied upon by Mr Peter Stockham in his calculations. 5 Though it should be noted that the evidence of Peter Stockham, a toxicologist at the Forensic Science Centre, was that the blood alcohol reading could potentially have been lower. 6 Though there was some variability to the amount of alcohol consumed contingent upon the timing of the consumption, or the ‘drinking window’. -- 7 of 26 -- [2023] SASCA 104 The Court 4 consciousness whilst driving, without any forewarning, causing him to lose control of the vehicle and veer into the path of the deceased’s vehicle, causing her death. 16 The appellant gave evidence at trial. He said that he started drinking at around 7:00pm, or shortly after, and consumed a maximum of five cans of West End beer. He said that when he left his friend’s house, he felt ‘comfortable to drive’ and did not feel as though he was intoxicated. He denied that drinking alcohol tends to make him fall asleep more easily or feel more tired. He had no recollection of how the collision occurred but suspected he had fallen asleep at the wheel. He said he did not recall feeling drowsy or tired before the collision. He did not remember telling civilian witnesses at the scene that he ‘must have dozed [off]’. He denied that when he commenced his journey from Pages Flat to Findon, or at any time prior to the collision, he felt as though he might ‘nod off’ while driving. The appellant conceded under cross-examination that he had not been sleeping well in recent times and that he was taking melatonin to assist him to sleep. 17 As part of the defence case, evidence was adduced from Dr Michael Chia, a medical practitioner specialising in respiratory and sleep medicine diagnosis. Dr Chia considered that the appellant was likely suffering from parasomnia at the time of the collision. Dr Chia gave evidence that a person who experiences parasomnia might fall asleep without warning and in circumstances where they would not usually expect to fall asleep. The sleep disorder of parasomnia would have also caused him to become de-sensitised to the ordinary physiological warning signs of fatigue and the onset of sleep. 18 Dr Chia gave evidence that a blood alcohol concentration of 0.15 grams or less per 100 millilitres of blood, in the absence of a sleep disorder, is unlikely to cause a person to fall asleep whilst driving. 19 In challenging the prosecution case that the appellant’s driving was dangerous, defence counsel at trial also relied on the absence of any evidence of braking (so as to suggest the appellant fell asleep at the wheel), and several witness’ testimony that they observed no other aberrant driving by the appellant in the period immediately leading up to the collision. Various witnesses also gave evidence that the appellant, immediately after the collision, did not appear to be affected by alcohol. 20 At trial, the appellant also relied on the ‘defence’ of honest and reasonable mistake. It was submitted that the prosecution had not excluded beyond reasonable doubt that the appellant held an honest and reasonable belief that he was not affected by alcohol and fatigue, and that he was safe to drive. 21 The jury unanimously returned a verdict of guilty to the aggravated offence of causing death by dangerous driving. -- 8 of 26 -- [2023] SASCA 104 The Court 5 Personal circumstances of the appellant 22 At the time of the offence, the appellant was 22 years old. He was born and raised on Kangaroo Island and is one of three children. He did not experience any hardship growing up and he remains close to his family. 23 The appellant went to school on Kangaroo Island and, at the completion of year 12, when he was 17 years old, moved to the mainland where he obtained an apprenticeship in carpentry. Upon completing his apprenticeship and becoming an accredited carpenter, the appellant obtained employment at a construction business owned by Mr Timothy McLoud. He was a skilled and committed worker with a good work ethic. 24 Following the collision, the appellant remained living with Mr McLoud before moving back to Kangaroo Island to be near his family. The appellant obtained employment with his current employer who provided a letter of support to the Court which referred to the appellant’s commitment to his job; and that he was well regarded within his local community and amongst his associates. 25 The appellant has a relevant prior conviction. On 18 August 2014, when 17 years of age, he was convicted in the Youth Court sitting at Christies Beach of the offence of driving with excess blood alcohol. For that offence, he was fined $900 and had his licence disqualified for 20 days. He was driving with a blood alcohol concentration of 0.14 grams of alcohol in 100 millimetres of blood. Sentencing remarks 26 The sentencing Judge was satisfied that the collision was caused by the appellant falling asleep at the wheel. Based on the evidence of Professor White, her Honour concluded that the appellant must have consumed, at the very least, five to six cans of West End beer before driving to Adelaide. Despite noting that it was not possible to precisely identify the appellant’s blood alcohol concentration at the time of the collision, her Honour found, consistent with the verdict, that it was above 0.08 grams per 100 millilitres of blood. 27 The sentencing Judge accepted Dr Chia’s evidence that the appellant suffered from parasomnia at the time of the collision but considered the mitigatory effect of his undiagnosed sleep disorder was limited when viewed in the context of his alcohol consumption that evening. 28 The sentencing Judge referred to the appellant’s prior conviction, which she considered should have been a ‘serious wake-up call to [the appellant] about the need to carefully monitor [his] alcohol consumption if [he] planned to drive’. 29 The sentencing Judge considered the impact of the offending on the victim’s friends and family but emphasised that the appellant’s plea of not guilty did not reflect a lack of contrition. Rather, her Honour found the appellant’s conduct throughout the trial, and on sentence, suggested that he understood the gravity of his actions and was ‘deeply remorseful’. Further, her Honour acknowledged the -- 9 of 26 -- [2023] SASCA 104 The Court 6 appellant’s entitlement to test the evidence against him at trial and reiterated that the offending was not made more serious by the fact that he exercised his right to have a trial; he was not to be punished for choosing that course of action. 30 The sentencing Judge noted that the appellant had been diagnosed with Post Traumatic Stress Disorder (‘PTSD’) and prescribed antidepressants in the months after the collision. 31 Before turning to sentence, her Honour referred to the seriousness of an offence of this kind, where a life had been lost, and the requirement for adequate punishment in order to achieve both personal and general deterrence. Her Honour said: The offence of causing death by dangerous driving is so serious because it involves the taking of a human life. Every human life is valuable in the eyes of the law. Crimes that involve the taking of a life are naturally of great concern to the community and with offences of this kind, that is reflected in the penalty set by parliament and the sentences passed by the courts. All of these considerations must be weighed in light of the fact that the tragic consequences of your actions were not intended by you. Every occasion of dangerous driving increases the risk to all road users and the sentence that I impose must deter both you and others who might be tempted to drive a motor vehicle dangerously, thus risking their own lives and the lives of others. You have a prior good record of community contribution and you are still a very young man. However, offenders who come before these courts for offending of this kind often have no significant record of prior offending. It must be acknowledged that serving a term of imprisonment will inevitably have a dramatic effect on a young person's life. This is especially so when the young person, like you, has previously been a contributing and well-respected member of the community. The sentence I impose must balance the need to punish and deter you with the need to ensure that consideration is given to your positive prospects of rehabilitation. 32 The sentencing Judge imposed a sentence of five years imprisonment, and a non-parole period of four years was fixed, that being at least four-fifths of the head sentence as is required by s 47(5)(d) of the Sentencing Act.7 Her Honour determined that there were no exceptional circumstances (within the meaning of ss 48(2) or (3) of the Sentencing Act) that warranted fixing an alternative non-parole period. 33 The sentencing Judge declined to suspend the sentence. 34 Her Honour then considered the question of whether the appellant should be permitted to serve the sentence on home detention under s 71 of the Sentencing Act. Her Honour said: 7 Under s 47(5)(d) of the Sentencing Act 2017 (SA) a non-parole period of four-fifths of the head sentence is required where a sentence is imposed for a serious offence against the person. The offence of causing death by dangerous driving is classified as such an offence. -- 10 of 26 -- [2023] SASCA 104 The Court 7 Section 71 of the Sentencing Act provides that an order may be made permitting a sentence of imprisonment to be served on home detention conditions in identified circumstances. I must first be satisfied that you are a suitable person to serve the sentence on home detention and if you are, I must consider whether such an order should be made having regard to all the circumstances of the case. I do consider that the first test is satisfied. I have had regard to your age, your prior good character, your personal circumstances, your community engagement and your work history and the prosocial environment within which it is proposed that you will live. A home detention report was prepared for an address at Mount Barker which is occupied by friends of your family. The report concluded that the address was suitable for home detention. All of these factors address the first question as to whether you are a suitable person. I am satisfied that you are a suitable person. However, the second stage requires me to consider whether, having regard to all of the purposes of sentencing, including general deterrence, punishment and the protection of the public, it is appropriate to make the order for home detention. Your youth and your personal circumstances are important considerations. It is a serious thing to send a young man to gaol for the first time and there is no doubt that you have good prospects of rehabilitation. But I must give weight to the fact that your offending was committed in aggravated circumstances which involved you driving when you knew you consumed more alcohol than you should have. I must also give weight to the loss of life involved. The paramount consideration that the court must take into account when determining whether to make a home detention order is the protection of the safety of the community as individuals or in general. I have concluded that your offending is simply too serious for me to make an order that it be served on home detention. I do not consider that such an order would properly reflect the need for punishment and deterrence. 35 Accordingly, the sentencing Judge declined to order that sentence be served on home detention. Ground 1 – evidence of the appellant’s undiagnosed sleep disorder 36 The appellant contended that the sentencing Judge erred in assessing the objective seriousness of the offence by failing to have proper regard to the appellant’s undiagnosed sleep disorder. In making that submission, the appellant relied on the evidence of Dr Chia (and Professor White) that the appellant’s blood alcohol concentration and level of intoxication, of itself, was unlikely to have caused him to fall asleep whilst driving. 37 The appellant submitted that a proper assessment of the nature and gravity of the offending required a careful consideration of the cause of the collision. In that regard, the appellant submitted that his undiagnosed sleep disorder was ‘a material cause’ of the collision that was outside of his control, and therefore, his moral culpability was reduced. -- 11 of 26 -- [2023] SASCA 104 The Court 8 38 In advancing that contention, the appellant relied on Spanjol v The Queen8 (‘Spanjol’) as discussed and explained by Nicholson AJA in R v Henderson.9 39 In Spanjol the Victorian Court of Appeal considered the impact of an external circumstance that was a material cause of a collision on the sentencing process. The Court summarised its conclusions as follows:10 (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 serious injury. (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 serious injury, 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 serious injury. (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. 40 In R v Henderson, Nicholson AJA (with whom Livesey P and David JA agreed on this issue) accepted the reasoning in Spanjol. 41 It is important to note from the outset that consistent with the guilty verdict, the jury accepted the prosecution case that a reasonable person in the situation of the appellant would have appreciated that he was at risk of falling asleep at the wheel, and in continuing to drive his vehicle in those circumstances, he was driving in a manner dangerous to the public. The jury must also have rejected the appellant’s ‘defence’ of honest and reasonable mistake; that is, he was not tired or feeling the effects of intoxication, and the onset of sleep came upon him without warning by reason of his undiagnosed sleep disorder. 8 (2016) 55 VR 350. 9 (2023) 104 MVR 68 at [85]-[90] per Nicholson AJA citing Spanjol v The Queen (2016) 55 VR 350; George v The Queen (2017) 80 MVR 436; Guseli v The Queen (2019) 87 MVR 340; Arpaci v The Queen (2020) 91 MVR 414; Director of Public Prosecutions v Kandel [2021] VCC 2183; Papagelou v The Queen (2022) 99 MVR 232. 10 Spanjol v The Queen (2016) 55 VR 350 at [5] per Maxwell P, Redlich and McLeish JJA. -- 12 of 26 -- [2023] SASCA 104 The Court 9 42 The appellant’s reliance on the principle in Spanjol as explained in R v Henderson is misplaced. The appellant was solely responsible for his decision to continue driving at a time when he ought to have known that there was a significant risk of falling asleep at the wheel; there were no other external circumstances or contributing factors which were a material cause of the collision. The jury, by returning a verdict of guilty, found that the prosecution excluded the ‘defence’ of honest and reasonable mistake, and the appellant’s evidence that he did not feel tired or intoxicated and there was no warning of the onset of sleep. It is to be accepted that the sedative effects of alcohol, and any tiredness caused by a long working day, would have a greater impact on a person suffering from parasomnia. However, in the circumstances of the present case, and bearing in mind the amount of alcohol consumed by the appellant, and the length of time he had been awake, the appellant’s undiagnosed sleep disorder was not a material cause of the collision, and thus, did not give rise to the notions of ‘reduced responsibility’ or ‘other contributing cause’ as those terms are explained in Spanjol. 43 Accordingly, the appellant’s condition of parasomnia was of limited relevance in assessing his moral culpability or the objective seriousness of the offence. The only way in which it was potentially relevant was in relation to the appellant’s subjective appreciation of his level of fatigue (as caused by his alcohol consumption and having been awake for 16 hours) which may have been somewhat dulled by his undiagnosed sleeping disorder. That is, by reason of his sleeping disorder, the appellant may have become accustomed to a feeling of chronic tiredness and in those circumstances he may not have had as complete an understanding or subjective appreciation of his risk of falling asleep as, for example, a person who did not suffer from his condition. 44 However, the weight to be accorded to the appellant’s condition of parasomnia as a mitigating factor had to be viewed in the context of the other serious features of his offending, including that he had consumed about five or six beers in a matter of hours prior to embarking upon a one-hour drive, at night, along a poorly lit road in a light truck. 45 In any event, the sentencing Judge expressly took into account the evidence of the appellant’s undiagnosed sleep disorder when assessing his moral culpability. Her Honour said: At trial, evidence was given by your treating sleep specialist, Dr Michael Chia. I accept Dr Chia's evidence. I am satisfied that you did have an undiagnosed sleep condition at the time of these events. That condition is likely to have meant that you were in a chronically tired state, but would not have necessarily been aware that there was anything different about that. That is, the feeling associated with being sleep deprived was usual for you. I accept that the condition impaired your capacity to truly appreciate how tired you were as you were living in a state of chronic sleep deprivation. The background of your undiagnosed sleep disorder is, in my view, relevant to your subjective appreciation about the dangerousness of your driving when you embarked on your journey. However, its mitigatory effect is limited when viewed in the context of the -- 13 of 26 -- [2023] SASCA 104 The Court 10 large amount of beer that you had consumed and your awareness that you should not have been driving in those circumstances. In this regard, it is also relevant to note that you do not come to this court with a clean driving record. 46 The sentencing Judge also specifically considered the objective seriousness of the offence in light of his undiagnosed sleep disorder. Whilst her Honour considered the appellant’s offending did not sit at the lowest end of the scale of seriousness, she acknowledged that the appellant’s driving was not accompanied by any of the more egregious aspects of driving that are sometimes seen by courts. Her Honour said: Drink-driving has long been appreciated as one of the major risks to the safe use of our roads. The message from government, police and road safety advocates is loud and clear. People who choose to drink and drive selfishly risk causing death or serious other injury to other road users. Your decision to drive after drinking alcohol prioritised your convenience and desires over the safety of everyone else using the roads on which you travelled. Having said that, your driving was not accompanied by any of the more egregious aspects of driving that are sometimes seen in this court. Your speed was not excessive. You were not racing other cars and, in my view, it is relevant that your full appreciation of the dangerousness of your condition was impaired by the undiagnosed sleep condition. 47 We are satisfied that the sentencing Judge had proper regard to the undiagnosed sleep disorder in assessing the appellant’s moral culpability and when considering the objective seriousness of his offending. The appellant’s undiagnosed sleep disorder could only be relevant to explain why he may not have had a complete subjective appreciation of his fatigue as one factor relevant to his moral culpability (as well as other features of the offending) and that is exactly the way in which her Honour approached the matter. There was no error. 48 For those reasons, we refuse permission to appeal on Ground 1. Ground 2 – evidence of Mr Jack Wagenknecht 49 The appellant contended that it was not open for the sentencing Judge to find that the appellant told Mr Jack Wagenknecht at the scene of the collision that he ‘was way over’ (the legal limit to drive). Further, the appellant submitted that he was denied procedural fairness as her Honour did not give him notice that she intended to rely upon the impugned comment. In developing this submission, the appellant emphasised that: he had challenged the admissibility of the evidence at trial; the witness was cross-examined on the topic (the evidence having been admitted); and the appellant denied in evidence that he made the comment. 50 In sentencing, her Honour referred to the impugned comment in the context of discussing the appellant’s remorse. Her Honour said: Evidence that I heard at trial supports the conclusion that you were deeply distressed about what you had done and your concern was immediately for Ms Varga. At the time at the scene, you told various people who stopped to assist that you thought you had fallen asleep -- 14 of 26 -- [2023] SASCA 104 The Court 11 at the wheel. Mr Wagenknecht was one of the people who stopped to assist. I am satisfied that you told him that you dozed off at the wheel and that you had been drinking. I am satisfied that you described yourself as ‘being way over’. When Mr Wagenknecht asked you if needed anything, you responded 'A bullet'. 51 In considering this ground of appeal, it is necessary to set out the relevant evidence. Mr Wagenknecht was one of the first civilians to attend the collision scene and was a prosecution witness at trial. Relevantly, he gave the following evidence: Q. Now did you see a male. A. Yes. Q. Where was he when you first saw him. A. Like on the sidewalk sitting down in between the truck and the car but closer to the truck. Q. When you saw him was he with anybody at that time. A. No. Q. Was he standing or sitting. A. Sitting. Q. How was he sitting. A. He was just sitting sort of with his hands behind his head (DEMONSTRATES) like that. Q. How did he appear. A. Like a bit distraught and shocked. Q. What was it about him that made you think that. A. He was the only one near the truck at that time so I assumed that he was the truck driver, so obviously that he had just been in an accident. Q. Did you approach him. A. Yes. Q. Did you say anything to him. A. Yes, I asked [if] he was all right. Q. Did he respond. A. Yes, he said no, he wasn’t all right. Q. Did you ask him what had happened. -- 15 of 26 -- [2023] SASCA 104 The Court 12 A. Yes. To which he replied he had just dozed off and he had been drinking. Q. Did he say anything about how much he had been drinking. A. No, he just – he just said he was way over. Q. Anything else that he said in terms of, that you recall. A. No. Q. Was there anything, any other conversation, that you have had with him that evening. A. I asked him if he needed anything, he said ‘No’, he just needs a bullet. 52 He was cross-examined as follows: Q. Were there others then around you and the male A. No, I don’t think so. Q. But you’re not sure. A. I know the other lady was there but at that point I think she was closer towards the other vehicle. Q. What about other people again, you’ve talked about the other lady on the, well you assume on the emergency call, were there others in that area. A. At that point I can’t remember. Q. You’re not sure whether there were others around when you approached the male, is that what you’re saying. A. I couldn’t say for certain. Q. And you say you had some conversation with him, correct. A. Yes. Q. And as part of that conversation, if I understood your evidence correctly, you said he said … words to the effect of ‘ – way over’, is that what you recollect. A. Yes, yep. Q. If I suggest to you that that is not correct you would say, ‘Look, that’s what I can recall’. A. Correct, yep. 53 The appellant gave evidence and denied making the impugned comment to Mr Wagenknecht. 54 On the prosecution case, Mr Wagenknecht’s evidence on this topic was supported by the evidence of the appellant’s blood alcohol concentration at the time of the collision (approximately 0.128 per cent per 100 millilitres of blood), -- 16 of 26 -- [2023] SASCA 104 The Court 13 and the evidence of Ms Vicki Amabili that he smelt of alcohol. The impugned comment was nonetheless relevant to prove that the appellant was over the limit (contrary to the evidence of Mr Stockham who, on various calculations, placed his blood alcohol reading as low as 0.05 per cent). It was also relevant to establish that the appellant realised that he was affected by alcohol, which was in turn relevant to the question of whether he had any prior warning that he was at risk of falling asleep, and the ‘defence’ of honest and reasonable mistake. 55 Both the prosecutor and defence counsel referred to the impugned comment in their closing addresses. Defence counsel submitted that the jury should not rely on the comment as the prosecution could not exclude as a reasonable possibility that: the appellant did not make the comment; nor that the appellant was telling the truth when he denied making the comment. Defence counsel appeared to assert that the jury were required to be satisfied beyond reasonable doubt that the impugned comment had been made before they could use it. To the extent that the same proposition is put on appeal, in support of the contention that it was not open to the sentencing Judge to have regard to the evidence, it should be rejected. 56 Whilst the impugned comment was an important piece of evidence, it was not relied upon as establishing any aspect of the prosecution case that was an indispensable link in the jury’s chain of reasoning towards guilt. There was no requirement that the comment be proved beyond reasonable doubt. 57 In support of the contention that the sentencing Judge should not have had regard to the impugned comment, the appellant also submitted that Mr Wagenknecht’s evidence was undermined by the testimony of other witnesses at trial. In making that submission, the appellant relied on the observations of other witnesses (apart from Ms Amabili) that he did not appear intoxicated or smell of alcohol; and the body camera footage recorded by police officers who attended at the scene, which depicted him being cooperative and providing his personal details with clarity (as opposed to being impaired by alcohol). 58 However, those submissions ignored the blood alcohol concentration of the appellant, as well as the evidence of Ms Amabili. They also ignored the fact that no other witness was in the immediate vicinity of the appellant when he allegedly made the impugned comment to Mr Wagenknecht. Whilst there was no direct support from any witness for the comment, there was also no evidence from any witness which directly contradicted it. It was one piece of evidence in proof of the appellant’s level of intoxication, and relevant to the question of whether he ought to have been aware that he was at risk of falling asleep due, in part, to his level of intoxication (and fatigue), as well as the ‘defence’ of honest and reasonable mistake. 59 We are satisfied it was open to the sentencing Judge to rely on Mr Wagenknecht’s evidence that the appellant said he was ‘way over’. It was a cogent piece of evidence which was not directly contradicted by the evidence of any other prosecution witness, and as explained earlier, was in fact supported by -- 17 of 26 -- [2023] SASCA 104 The Court 14 the evidence of Professor White as to the appellant’s blood alcohol concentration at the time of the collision. It was also supported by the evidence of Ms Amabili. 60 Further, the sentencing Judge only referred to the impugned comment in the context of the appellant’s remorse. Her Honour’s remarks do not suggest that she used the impugned comment to render the offending more serious. Indeed, it was referred to by her Honour in the context of emphasising the appellant’s immediate and deep remorse for having caused the collision. 61 As to the submission that the appellant was denied procedural fairness, the evidence of the impugned comment was the subject of argument as to its admissibility, and once admitted, defence counsel directly challenged the witness on that topic. The appellant also denied that he made the comment. Both parties referred to the evidence in their closing addresses. As explained earlier, the evidence was relevant to prove that the appellant ought to have appreciated the risk of falling asleep at the wheel, and that by choosing to continue to drive, he was driving in a manner dangerous to the public. It was also relevant to rebut the ‘defence’ of honest and reasonable mistake. The evidence was part of the prosecution case which was encapsulated by the guilty verdict. Thus, the sentencing Judge was under no obligation to inform the parties that she intended to have regard to that evidence during the sentencing process. Indeed, her Honour found that it was not possible to identify precisely what the appellant’s level of blood alcohol was at the time of the collision, except to say that it was in excess of 0.08 per 100 millilitres of blood. Her Honour’s finding that the appellant made the impugned comment was consistent with the verdict; it did not render the offending more serious, nor was it used by her Honour for that purpose. 62 For those reasons, we are satisfied that it was open on the evidence for the sentencing Judge to find that the appellant told Mr Wagenknecht that he ‘was way over’, and there was no denial of procedural fairness to the appellant. Further, we are not satisfied that her Honour used the impugned comment to elevate the objective seriousness of the offending beyond that which was consistent with the guilty verdict. 63 We refuse permission to appeal on Ground 2. Ground 3 – delay and punishment for plea of not guilty 64 The appellant contended that the sentencing Judge erred in taking into account the delay in the matter proceeding to trial, and by doing so punished the appellant for his plea of not guilty. 65 The appellant committed the offence on 12 March 2019. A notice of committal was issued on 30 January 2020 and the appellant was first arraigned on 1 May 2020. The trial was initially listed for 12 April 2021, but did not commence until 16 August 2022. This was largely due to the COVID-19 pandemic. -- 18 of 26 -- [2023] SASCA 104 The Court 15 66 Prior to sentencing submissions, defence counsel objected to comments made by the deceased’s family within their victim impact material, including references to the ‘long drawn-out legal process’ and that the delay had ‘increased and prolonged the suffering of [the deceased’s] family and friends’. Defence counsel sought orders that the impugned comments not be read out in court. The sentencing Judge declined to make such an order. 67 The issue of delay was raised again by defence counsel during sentencing submissions. In response, the sentencing Judge said, ‘I think likely the delays which increased the grief and suffering for the family of the victim also increased the stress on Mr Martain and his family. So it’s [an] unfortunate circumstance all round which makes it more difficult for everyone.’11 68 The sentencing Judge, in her remarks, made observations about the impact of the appellant’s actions on the deceased’s family and loved ones. Her Honour said:12 I now turn to make some observations about the effect of your actions. I heard read to the court victim impact statements from Lorent Varga, Nadine Varga's father; Yolande Varga, her sister; Wendy McGuinness, Chris Steketee, July Walker and Lesley Russell, all friends of hers. It would not do justice to the deep loss that they have each described to attempt to summarise what they have said. … Ms Varga came from a close-knit family and her death has left a significant hole in the lives of her sister and her father. They have each had to face the practical aspects of organising her affairs while managing their unimaginable grief. … There was a theme expressed throughout the statements that Ms Varga's friends and family feel aggrieved by the amount of time this matter has taken to be resolved through the courts. They feel that their grief has been aggravated by the lack of resolution. They have drawn from your plea of not guilty that you lack remorse for your actions. It is understandable that they feel this way. There is no doubt that the uncertainties associated with the resolution of the criminal charges have stood in the way of aspects of their recovery. Their experience of the court system is a relevant aspect of the effect that the crime has had on them. However, it is important that you understand that I sentence you on the basis that you were entitled to test the evidence against you at trial. Your offending is not made more serious by the fact that you exercised your right to have a trial and you are not to be punished for taking that course. 69 The appellant submitted that the sentencing Judge inappropriately took into account the delay in proceedings which, apart from the protracted committal, were the result of various factors outside of his control, including COVID-19. 11 Emphasis added. 12 Emphasis added. -- 19 of 26 -- [2023] SASCA 104 The Court 16 70 In support of that submission, the appellant relied on Siganto v The Queen13 where Gleeson CJ, Gummow, Hayne and Callinan JJ observed:14 It is argued on behalf of the appellant that the manner in which Angel J referred to the appellant's plea of not guilty indicates that his Honour treated this as an aggravating circumstance, and increased the punishment which would otherwise have been imposed by reason of the fact that the appellant defended himself against the charge. Without question, that would have constituted a serious error. In R v Gray the Victorian Court of Criminal Appeal said: “It is impermissible to increase what is a proper sentence for the offence committed, in order to mark the court's disapproval of the accused's having put the issues to proof or having presented a time-wasting or even scurrilous defence.” A person charged with a criminal offence is entitled to plead not guilty, and defend himself or herself, without thereby attracting the risk of the imposition of a penalty more serious than would otherwise have been imposed. (Citations omitted.) 71 However, in the present case it is evident from the sentencing Judge’s remarks that she was not embracing the statements and sentiments of the deceased’s family, but rather, was summarising the impact of the crime on them and acknowledging that the delay in proceedings would have exacerbated their grief. After considering the effect of the crime (including the delay) on the deceased’s family, her Honour carefully delineated its relevance to sentence, and emphasised that the appellant was not being punished for his decision to plead not guilty and exercise his right to a trial. That is, her Honour purposefully removed her consideration of the sentiments expressed in the victim impact statements as to delay from the question of the appellant’s culpability and clarified that she was not punishing the appellant for any delay in proceedings. There is simply no support in the sentencing remarks for the appellant’s complaint; indeed, they revealed the contrary. 72 For those reasons, we refuse permission on Ground 3. Grounds 4, 5 and 7 – manifest excess 73 These grounds of appeal are interrelated and are all referable to the overarching complaint that the sentence was manifestly excessive (Ground 5). The appellant contended that in imposing a sentence that was manifestly excessive, the sentencing Judge gave insufficient weight to matters personal to the appellant including his young age, prospects of rehabilitation and his mental condition, namely the undiagnosed sleep disorder (Ground 4). The appellant also complained that her Honour erred in declining to order that the sentence be served on home 13 (1998) 194 CLR 656. 14 Siganto v The Queen (1998) 194 CLR 656 at [21]-[22] per Gleeson CJ, Gummow, Hayne and Callinan JJ. -- 20 of 26 -- [2023] SASCA 104 The Court 17 detention (Ground 7). It is therefore convenient to deal with all three grounds of appeal together. 74 The relevant principles in relation to manifest excess are well known.15 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.16 75 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.17 76 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’.18 77 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’.19 That being said, while the sentences imposed in other cases do not dictate whether the sentence under review is erroneous, it can be informative for an appeal court to consider the sentences customarily imposed when evaluating whether a sentence is manifestly excessive or inadequate.20 To that extent, a historical survey of comparative sentences can provide a general 15 House v The King (1936) 55 CLR 499 at 504-505 per Dixon, Evatt and McTiernan JJ. See also Pateras v The Queen (2021) 139 SASR 549 at [15]-[17] per Lovell, Livesey and Bleby JJA. 16 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. 17 Hili v The Queen (2010) 242 CLR 520 at [59] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ. 18 Hili v The Queen (2010) 242 CLR 520 at [59] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ. 19 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. 20 R v Morse (1979) 23 SASR 98 at 99 per King CJ (with whom White and Mohr JJ agreed). -- 21 of 26 -- [2023] SASCA 104 The Court 18 guide as to the adequacy of a sentence.21 Nonetheless, there are well recognised limitations in the evaluation of past sentences.22 78 It is apparent from Parliament’s amendments over time, as well as the decisions of the courts, that community attitudes toward dangerous driving have hardened markedly in recent decades, particularly at the time of the Statutes Amendment (Vehicle and Vessel Offences) Act 2005 (SA) when the penalty for aggravated or subsequent offences was increased to reflect the gravity of a manslaughter offence and the potential for life imprisonment.23 As can be seen, it is now clear that the practice which was considered in R v Payne24 (of imposing sentences in the order of three years without suspension) has long ceased to represent the usual approach.25 Further, in a number of relatively recent cases, particularly since the introduction of the aggravated form of the offence, the starting point has been imprisonment without suspension in the order of six years.26 79 Nonetheless, much higher sentences have also been imposed, particularly where the offender’s moral culpability is high because the circumstances of the offending.27 80 It is to be accepted that the sentencing discretion is not confined to imposing sentences proportionate to the moral blameworthiness of the offender. Even where his or her moral blameworthiness might be thought low, the sentence must nonetheless reflect that the offending has resulted in the loss of human life. Unsurprisingly, it is necessary for the sentence to reflect the very point of the offence being that the dangerous driving has caused death, even though that outcome was not intended. It is a serious matter to cause the loss of human life and it is necessary for the Court to give full weight to the high value attached by the community to the sanctity of human life. 81 A wide range of circumstances and conduct capable of constituting the offence of aggravated cause death by dangerous driving means that immediate imprisonment without suspension or home detention cannot be said to be inevitable; however, many cases, perhaps most, will require that a sentence of imprisonment be imposed and served immediately. That is so not only because of 21 R v Singh (2011) 111 SASR 219 at [32]-[34] per Sulan J (with whom David and Peek JJ agreed); Bubner v The Queen (2022) 99 MVR 94 at [36]-[37] per Livesey P, Doyle and David JJA. 22 See, for example, R v Akol (2020) 284 A Crim R 246 at [62] per Livesey J (with whom Nicholson and Bleby JJ agreed); Bubner v The Queen (2022) 99 MVR 94 at [36]-[38] per Livesey P, Doyle and David JJA. 23 R v Akol (2020) 284 A Crim R 246 at [53]-[61] per Livesey J (with whom Nicholson and Bleby JJ agreed). 24 (2004) 89 SASR 49. 25 R v Payne (2004) 89 SASR 49 at [68]-[73] per Doyle CJ, Nyland, Sulan, Anderson and Mullighan JJ. 26 R v Watkins (2013) 118 SASR 342 at [25]-[26] per Stanley J (with whom Kourakis CJ and Vanstone J agreed); R v Edwards [2016] SASCFC 145 at [31]-[33] per Blue, Lovell and Hinton JJ; R v Akol (2020) 284 A Crim R 246 at [100]-[101] per Livesey J (with whom Nicholson and Bleby JJ agreed); Bubner v The Queen (2022) 99 MVR 94; R v Henderson (2023) 104 MVR 68; R v Trewren [2023] SASCA 100. 27 R v Dundovic (2008) 101 SASR 32; R v Watkins (2013) 118 SASR 342; R v Ceruto [2014] SASCFC 5; Branscheid v The King [2023] SASCA 103. -- 22 of 26 -- [2023] SASCA 104 The Court 19 the importance placed by the law on the sanctity of human life but also because of the need for general deterrence.28 82 In addition, the need for personal deterrence will depend upon a range of factors such as the degree of carelessness or positive recklessness and the nature of the driving, including whether it exhibited high speed, deliberate flouting of the road rules and aggravating features such as the use of drugs or alcohol.29 83 As is recognised by ss 3 and 4 of the Sentencing Act, it is necessary for sentencing courts to consider the safety of the community as well as the secondary considerations of deterrence (whether personal or general), denunciation and punishment. It is also of course necessary to give full weight to the defendant’s personal circumstances and rehabilitation prospects. 84 In the present case, the appellant contended that the head sentence of five years imprisonment was manifestly excessive having regard to the circumstances of the offence and the offender. It was submitted that the sentencing Judge gave insufficient weight to certain relevant factors, including the appellant’s age, positive prospects of rehabilitation, low risk of recidivism, evidence of good character, employment history, and the undiagnosed sleep disorder (in the context of the existence of an underlying cognitive impairment). 85 The sentencing Judge’s remarks revealed her careful consideration of the appellant’s personal circumstances. Her Honour made express reference to his young age and accepted that he had a ‘good work ethic’. Her Honour also concluded that he had good prospects of rehabilitation. Further, her Honour stated that she had read and considered several character references which referred to the appellant’s contribution to the community. Her Honour said: I have read and considered a number of other references provided on your behalf. You are an active contributor to your local community and are well-regarded by those who have known you over the long term. You are fortunate to have the continuing support of a number of people as well as support from your family. The environment that you live within is a positive, prosocial one that will support your rehabilitation. 86 Significantly, the sentencing Judge returned to the appellant’s personal circumstances at each stage of the sentencing process but considered, however, that those factors had to be balanced with countervailing considerations when it came to fixing the head sentence. Her Honour correctly considered that the sentence also 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 sentencing for 28 R v Johnston (1985) 38 SASR 582 at 585-586 per King CJ; R v Payne (2004) 89 SASR 49 at [50], [70] per Doyle CJ, Nyland, Sulan, Anderson and Mullighan JJ; R v Watkins (2013) 118 SASR 342, [25] per Stanley J (with whom Kourakis CJ and Vanstone J agreed). See also R v Ceruto (2014) 66 MVR 94 at [36] per Stanley J (with whom Kourakis CJ and Vanstone J agreed); cf R v Wooldridge (2015) 123 SASR 422 at [13]-[16] per Gray ACJ, Peek and Nicholson JJ. 29 R v Akol (2020) 284 A Crim R 246 at [100]-[101] per Livesey J (with whom Nicholson and Bleby JJ agreed). -- 23 of 26 -- [2023] SASCA 104 The Court 20 offending of this kind.30 Deterrence in this instance included not only specific deterrence but, more particularly, general deterrence. Offending of this kind is prevalent. Courts are obliged to fix sentences for this type of offending that are sufficiently severe that they will act as a deterrence to others from driving in a manner dangerous to the public, especially when affected by alcohol.31 87 There were features of the appellant’s personal circumstances in this case that were undoubtedly favourable. He was aged 22 at the time of the offending and was still a young man of 25 at the time of sentence. He had positive prospects of rehabilitation and there was a low risk of recidivism. His evidence of previous good character, and his employment history were all relevant mitigating factors for the sentencing Judge to take into account, which she expressly did. The appellant was also clearly remorseful for his offending and had suffered from PTSD in the aftermath of the collision. There was much to be said in his favour. 88 However, those matters favourable to the appellant needed to be balanced with the fact that this was still a serious offence of its kind. The appellant’s blood alcohol concentration was approximately 0.128 per cent at the time of the collision. Consistent with the jury’s verdict, the appellant’s act of driving whilst intoxicated and fatigued was dangerous in that a reasonable person in his circumstances would have appreciated that he was at real risk of falling asleep at the wheel. The effects of intoxication on driving are well known and obvious. Yet, the appellant, having consumed at least five or six cans of beer, having worked a full day, and having been awake for 16 hours, made a deliberate decision to drive and embark on an hour-long journey on a poorly lit road, at night, in a light truck. 89 Further, the appellant has a relevant prior conviction for driving with a blood alcohol concentration above the legal limit. Yet, this did not personally deter him from re-offending, on this occasion with fatal consequences. There was a need for the sentence to also reflect principles of both general and specific deterrence. 90 For those reasons, and notwithstanding that the appellant is still a young man with good prospects of rehabilitation and a low risk of re-offending, we are not satisfied that the head sentence of five years imprisonment was plainly unjust or unreasonable. 91 The appellant also complained that the sentencing Judge erred in failing to order that the sentence be served on home detention, and for that reason the sentence was manifestly excessive. 92 Section 71 of the Sentencing Act empowers a court to order home detention where: a sentence of imprisonment has been imposed; the sentence is not to be suspended; and the court considers the defendant to be a suitable person to serve the sentence on home detention. Section 70 and the balance of s 71 provides that 30 R v Watkins (2013) 118 SASR 342. 31 R v Watkins (2013) 118 SASR 342 at [25] per Stanley J (with whom Kourakis CJ and Vanstone J agreed). -- 24 of 26 -- [2023] SASCA 104 The Court 21 certain offences and types of offenders are expressly excluded from the home detention regime. In the present case, the sentencing Judge was not legislatively precluded from making a home detention order. 93 Relevantly, however, s 71(2)(a) provides that a home detention order must not be made if the court considers that the making of such an order would (or may) affect public confidence in the administration of justice. 94 In sentencing for matters of this kind, an order of home detention is extremely rare.32 A sentence for the offence of causing death by dangerous driving must ensure that the objectives of punishment and general deterrence are properly reflected in the sentence. Further, the terms of s 71(2)(a) leave little scope, if any, for an order to serve a lengthy sentence on home detention.33 95 The observations of Doyle J in R v Dell34 made in the context of the earlier and slightly different regime for home detention in the Criminal Law (Sentencing) Act 1988 (SA) remain pertinent. His Honour said:35 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 32 R v Henderson (2023) 104 MVR 68 at [116] per Nicholson AJA. 33 R v Henderson (2023) 104 MVR 68 at [121]-[122] per Nicholson AJA. 34 (2016) 126 SASR 571. 35 R v Dell (2016) 126 SASR 571 at [54]-[55] per Doyle J cited in R v Henderson (2023) 104 MVR 68 at [121] per Nicholson AJA. -- 25 of 26 -- [2023] SASCA 104 The Court 22 some indication of the weight that it is necessary to attach to the objectives I have mentioned. (Citations omitted) 96 As earlier indicated, the primary sentencing purposes that arise in cases such as this are general deterrence, denunciation and punishment. Again, whilst the appellant’s personal circumstances are to be accorded appropriate weight, the extremely serious nature of the offending, and its consequences, must not be overlooked. If offending is so serious as to warrant a sentence of five years imprisonment with a non-parole period of four years, it would be a rare case where it is not too serious to admit of home detention. 97 The sentencing Judge, when determining whether to order that the sentence be served on home detention, considered that the appellant’s positive personal circumstances were outweighed by countervailing considerations of general deterrence and punishment. It is clear from her Honour’s remarks that she engaged in the two-stage process set out in R v Dell and found that it was not appropriate to order that the sentence be served on home detention because the offending was too serious. 98 There was no error by the sentencing Judge in declining to order that the sentence be served on home detention. To have made such an order in this case would have been inappropriate given the serious features of the offending and would have been inconsistent with the approach adopted by this Court in broadly similar cases. 99 We are satisfied that neither the length of the sentence nor the decision of the sentencing Judge to decline to order that the sentence be served on home detention resulted in a sentence that was plainly unjust or unreasonable for this offence or this offender. We are satisfied that the sentence was not manifestly excessive. 100 For those reasons, we grant permission to appeal on Grounds 4, 5 and 7 but dismiss the appeal. Orders 1. Permission to appeal is granted on Grounds 4, 5 and 7. 2. The appeal against sentence is dismissed. -- 26 of 26 --