R v Henderson [2023] SASCA 42 (20 April 2023)
This was a Crown appeal against an inadequate sentence imposed by a judge of the District Court. The appeal was allowed and Mr Henderson (H) was re-sentenced. He had pleaded guilty in the District Court to a charge of aggravated causing death by dangerous driving.
The circumstances of the offence were described by the Court of Appeal as very serious. On the day of the offence, H had been drinking heavily in company with the deceased, who was a passenger in the vehicle driven by H. The deceased and H had taken turns in driving around a small town in the Adelaide Hills. On one occasion when H had been driving and the deceased's wife was in the passenger seat, he had accelerated through an intersection, started to lose control and almost collided with a stobie pole. She was so scared she got out of the vehicle.
The crash which killed H's passenger occurred as H drove at a speed of 118km/h in an 80km/h speed zone. He failed to negotiate a bend, lost control, crossed over into the opposite lane and collided with a large tree on the other side of the road. On a back reading of his blood alcohol level the expert evidence was that it was 0.193mL/L at the time of the fatality. The blood alcohol level of the deceased upon autopsy was between 0.16 and 0.21. The circumstances of the offending were described by the Court of Appeal as 'egregious.
The District Court judge had imposed a sentence of imprisonment of 4 years, 3 months and 9 days after a 5% discount for the guilty plea. The judge imposed a non-parole period of 3 years, 5 months and 1 day and ordered that the sentence be served on home detention. The judge imposed a licence disqualification of 13 years.
The outcome
The Court of Appeal found that the term imposed in the District Court was manifestly inadequate and re-sentenced H to imprisonment for 6 years, 7 months and 25 day with a non-parole period of 5 years, 3 months and 26 days to be served in prison. The court remarked that the District Court order that the initial sentence imposed be served on home detention would 'undoubtedly affect public confidence in the administration of justice'.
Comments
The Court of Appeal remarked that the offending for which H was sentenced in the District Court was 'egregious' offending. The Courtof Appeal had increased the head sentence by 2 years, 4 months and 16 days, and the non-parole period by 1 year, 10 months and 25 days. H was disqualified from driving for 12 years on his being re-sentenced. This meant that the disqualification would amount in effect to over 17 years as H would be liable to the full term of 12 years disqualification on his release from prison.
The most significant aspect of the appeal was that the Court ordered that the sentence be served in a prison, not on home detention.
The Court recognised that home detention is a 'significantly less onerous' form of punishment than imprisonment within a prison. The Court emphasised that a sentence must take into proper account the criminality of the conduct involved, the need for the punishment of the offending and the need to deter others from similar behaviour.
The Court observed that the greater the need for punishment and deterrence, the less likely it will be appropriate that there be an order for home detention. The Court addressed the serious nature of drink driving when it remarked that 'Driving while intoxicated is not only a criminal offence it is very much regarded as morally repugnant. It is universally accepted that driving while intoxicated is very dangerous'.