Abeyakoon v Brown
[2011] WASCA 63
•23 MARCH 2011
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: ABEYAKOON -v- BROWN [2011] WASCA 63
CORAM: McLURE P
PULLIN JA
HALL J
HEARD: 22 FEBRUARY 2011
DELIVERED : 23 MARCH 2011
FILE NO/S: CACR 93 of 2010
BETWEEN: SHANNON MICHAEL ABEYAKOON
Appellant
AND
PAULETTE ELIZABETH BROWN
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram :SIMMONDS J
Citation :ABEYAKOON -v- BROWN [2010] WASC 145
File No :SJA 1112 of 2009
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram :MAGISTRATE W G TARR
File No :PE 41296 of 2009, PE 41297 of 2009, PE 41298 of 2009, PE 41299 of 2009
Catchwords:
Criminal law - Appeal concerning sentences - Traffic offences - Whether there are two categories of seriousness in dangerous driving occasioning grievous bodily harm - Whether the type of sentence should be determined by such categorisation
Legislation:
Criminal Appeals Act 2004 (WA), s 14(1)(c), s 14(2), s 18
Road Traffic Act 1974 (WA), s 54(2), s 54(b), s 54(3), s 59(1)(b), s 59A(1)(b), s 64AA(1)
Sentencing Act 1995 (WA)
Result:
Leave to appeal granted
Appeal allowed
Appellant resentenced
Category: B
Representation:
Counsel:
Appellant: Mr S Vandongen SC
Respondent: Mr J A Scholz
Solicitors:
Appellant: James Chong Lawyers
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Eves v The State of Western Australia [2008] WASCA 7; (2008) 49 MVR 259
Joyce v Gee [2010] WASC 76
R v Guilfoyle [1973] 2 All ER 844
Smith v The Queen [1976] WAR 97
Wallam v Dent [2008] WASC 170
Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300
Wiltshire v Mafi [2010] WASCA 111
Wood v The Queen [2002] WASCA 95; (2002) 130 A Crim R 518
REASONS OF THE COURT: This appeal against sentence for traffic offences concerned a young man of good character who believed he was behaving responsibly, who was not speeding, and who had no intention of flouting the road rules, but because of a moment of inattention, caused serious injury to other road users and damage to vehicles. The appeal is against the judgment of Simmonds J, who dismissed an appeal to him against the sentences imposed by Magistrate W G Tarr.
The charges
The charges to which the appellant pleaded guilty were that on 9 November 2008 at Morley, the appellant:
(a)drove a motor vehicle on a road, namely Morley Drive, in a manner that was having regard to all the circumstances, dangerous to the public or to any person, and was involved in an incident occasioning grievous bodily harm to Nyssa Kate MASSAROTTO [contrary to s 59(1)(b) of the Road Traffic Act 1974 (WA)].
(b)being the driver of a vehicle involved in an incident occasioning bodily harm to another person, failed to stop immediately after the occurrence of the incident and for as long as necessary to comply with the requirements of (subsection(s) 54(2) (and) 54(6)) of the Road Traffic Act 1974 [contrary to s 54(3) of the Road Traffic Act 1974].
(c)drove a motor vehicle on a road, namely Morley Drive in a manner that was having regard to all the circumstances, dangerous to the public or any person, and was involved in an incident occasioning bodily harm to Jarrod Marcus DELDERFIELD [contrary to s 59A(1)(b) of the Road Traffic Act 1974].
(d)drove a motor vehicle, registered number 1CUH732 on a road namely, Morley Drive, with a blood alcohol content exceeding 0.05 grams of alcohol per 100 millilitres of blood, that blood alcohol content calculable as 0.059 grams of alcohol per 100 millilitres of blood [contrary to s 64AA(1) of the Road Traffic Act 1974]
The facts
On 9 November 2008 at about 1.00 pm the appellant and a friend, whose 23rd birthday it was, arrived at a hotel. The friend's girlfriend drove them there as she planned not to drink alcohol. The appellant was at the hotel until about 5.00 pm. He drank about six full strength stubbies over that period. He went back to the friend's place at 6.00 pm. Some food was consumed by the appellant. The appellant then went to sleep on the couch.
At about 9.00 pm that night, the appellant awoke. Thinking it was 2.00 am or 3.00 am, intent on going to work the next day and feeling 'okay', he went outside, got into his Holden Commodore utility and set off on the 15 minute drive to his home.
The appellant remembered travelling along Morley Drive in a westerly direction and following a car about 50 m in front of him, through a green light at an intersection. This intersection was about 150 m from the intersection of Morley Drive and Tonkin Highway. The intersection of Morley Drive and Tonkin Highway was well lit by street lighting and visibility was good. The appellant's utility approached the intersection and entered it against the red traffic light. The appellant later said he did not remember what colour the light was when he entered the intersection. He did remember that he was travelling at about 60 km per hour when he travelled through it.
Having entered the intersection, the appellant's utility hit three motor vehicles before coming to a stop. The appellant's utility first slid into the front end of a Holden Commodore utility turning right off Tonkin Highway (heading east onto Morley Drive). The latter vehicle stopped on impact. At that point the air bags in the appellant's utility were activated. There was a female driver and her mother in the other vehicle. There was no evidence of any injuries to them.
After it hit the first motor vehicle, the appellant's utility continued on and hit a Hyundai Excel on its right side, causing it to spin and slide so that it ended up facing west in the eastbound left turning lane on Morley Drive. The driver of the Excel was Nyssa Massarotto, and Jarrod Delderfield was seated in the front passenger seat. Both were injured in the incident, Ms Massarotto particularly seriously. Ms Massarotto suffered serious injuries. That resulted in the first charge. Mr Delderfield suffered fracture injuries. That resulted in the third charge.
After hitting the Excel, the appellant's utility continued forward, colliding head on with a stationary taxi, a Ford Falcon station wagon. The Falcon was in the right turning lane 'of the eastbound traffic on Morley Drive turning into Tonkin Highway'. The impact caused the Falcon to end up facing north-east into the westbound lanes of Morley Drive. There was no evidence of injury to the driver of the Falcon.
The appellant's utility came to a stop, facing west in Morley Drive in the eastbound right-hand turning lane. The appellant got out of his utility. He said the scene 'looked like a war zone'. He was not fully aware that he had been the cause of the accident at that stage. He was dazed and confused. After he alighted from his vehicle, someone came towards him and behaved, not unnaturally, in an 'aggressive and abrupt' manner. The appellant panicked and left the scene, walking down Morley Drive. This resulted in the second charge. He rang his parents or brother and said that he had been in an accident. The parents or brother informed the police.
The appellant then returned to the scene after having spoken with the police. The appellant provided a sample of his breath for a preliminary blood alcohol concentration test. The result calculated back to the time of the incident was 0.059 g per 100 ml of blood. That resulted in the fourth charge.
Personal circumstances of the appellant
A pre‑sentence report was obtained after the appellant pleaded guilty and before he was sentenced. The appellant's personal circumstances were described by Simmonds J:
The appellant was … 24 years of age at the date of the hearing, living with his parents and having a business degree. He had worked for a bank for about two years before commencing work with his current employer, from whom there was a reference speaking 'highly' of him. The appellant had shown 'a great amount of remorse' and was paying off the damage to all of the motor vehicles involved in the incident, a total amount of 'just over $50,000'. Counsel for the offender referred to the PSR as speaking of 'his stable employment [and] his family support'. Counsel added, in what may be another reference to the PSR, that 'there isn't any underlying drink problem by my client'.
I note that attached to the PSR was a criminal history for the appellant showing that his only convictions were for two traffic offences, one for driving a motor vehicle on the road not complying with vehicle standards regulations and the other for no authority to drive (incorrect class). Neither … indicate a criminal record of any significance to this sentencing [22] ‑ [23].
The magistrate's sentencing remarks
The following remarks were made by the sentencing magistrate. Emphasis has been added to two phrases which are referred to in the appellant's submissions in support of ground 1 of the appeal to this court. He said:
The most serious is the charge of dangerous driving causing grievous bodily harm, although the charge of failing to stop and render assistance also has a similar penalty to that penalty under section 59(1)(b) of the Road Traffic Act and there are the two other charges; the dangerous driving causing bodily harm under section 59A and the 08 charge.
Section 59 is the section which deals with dangerous driving causing death or grievous bodily harm and the section makes no distinction between death and grievous bodily harm as far as a penalty goes and throughout the section it refers to death or grievous bodily harm on a number of occasions, so it seems to me that the court when dealing with this matter is required to deal with it under the provisions of that section.
As I said, death and grievous bodily harm - there is no distinction made. I have had a look at a number of authorities and one of the leading authorities in relation to a charge of this type is Wood v The Queen (2002) WASCA 95 and the leading judgment in that of Murray J, and the appeal was from the District Court and a number of observations there are made and reference to early charges. There is reference to a case, Smith v The Queen, which is often cited in these matters.
It's a 1976 case where the chief justice, as he was referred to the fact that there are two broad categories of cases. The first is where the accident has arisen through momentary inattention or misjudgement and secondly, those in which the accused has driven in a manner that has shown a selfish disregard for the safety of other road users and in that case that he was talking to, it said it fell into the second category. Now, it seems to me that this case falls into that second category.
It could not be said that someone who had consumed alcohol and went through a red light in the way the accused did, it came within the first category of momentary inattention or misjudgement, but that case, another case follow the view of a New South Wales judgment where the court said that a noncustodial sentence for an offence of dangerous driving causing grievous bodily harm should be an exception and almost invariably confined to cases involving momentary inattention or judgement.
As I have said, in the case the accused went through a red light, as I understand. He'd consumed alcohol and as I have heard today in his terms, what was left looked like a war zone. There were a number of vehicles involved and a number of people injured. The most serious was the driver of one of the vehicles who has suffered grievous bodily harm and as I understand from the reports that have been handed up that of the injuries to her are of a permanent nature and the report doesn't take that any further, but - no, I'm sorry, it says they were not of a nature as to cause or likely to cause permanent injury or death, but they were substantial injuries which did endanger or be likely to endanger life. The government authorities involved with those (indistinct) spent a lot of money trying to get the message across to people that it's important that they drive with care and that alcohol and speed, although there's no evidence of speed as such in this case, are the cause of many fatalities on our roads.
That's why the authorities indicate that a sentence that is imposed on someone who does get involved in an accident must be - any sentence imposed must be seen as a deterrent and not necessarily deterrent to the accused, but it certainly must be a deterrent to the public generally. A message must be sent that others, that there will be serious consequences where drivers drive in a dangerous manner and cause death or grievous bodily harm to other road users. Now, it's not uncommon in cases of this type for the accused not to have any prior convictions and to be young and also a person of good character.
The accused is remorseful and that's certainly not uncommon. He's demonstrated his remorse on this occasion by his early plea of guilty, it's been held where someone defends a case of this type then that's not a demonstration of remorse. It's more likely a demonstration of regret, but in this case the accused has shown some regard to these matters. I'm aware of the provisions of the Sentencing Act and the options that are available to the court.
The penalty for dangerous driving causing grievous bodily harm in the summary penalty is imprisonment for three years or a fine of 720 - no, that's $36,000 plus a disqualification of the person's driver's licence. That is the same as the penalty that's imposed for the charge under section 54 where someone leaves the scene of an accident where there are people injured. The summary conviction in that is imprisonment for three years and under section 59, dangerous driving causing bodily harm, there is imprisonment of nine months and also a disqualification.
As I've indicated, the authorities are quite clear that where the offending falls within the second category, that a term of imprisonment is the only option open to the court and as I've indicated in the case of Wood v The Queen there was - one of the grounds of appeal was that the sentence should be - the term of imprisonment should be suspended and that ground of appeal was dismissed because the court said that in these matters, the term of imprisonment should be an immediate custodial sentence.
In the matter of the New South Wales matter that I've indicated which has been accepted by - or adopted by the authorities, the court said that with a plea of guilty wherever there is present a material degree of aggravating factor, a custodial sentence of less than three years for a charge of causing death or two years in relation to a charge of causing grievous bodily harm should be the exception. Now, in the matter of Wood, that was a case where the driver fell asleep and killed someone on the freeway.
In that case the woman was young. She had no prior convictions. She was a person otherwise of good character and it was held that a term of immediate imprisonment ordered by the District Court was appropriate. So it seems to me in all the circumstances, I have no alternative but to impose a custodial sentence to be served immediately.
…
It gives me no pleasure to sentence you to a term of imprisonment but your action on this night resulted in some serious injuries and I suppose it was fortunate that more people weren't injured and that no‑one was killed. As I've said, there's a concern in the community about the number of accidents, particularly when people have been drinking. Although your reading was just over the .05 limit, you had consumed alcohol.
There was something that contributed to you going through the red light and it may well have been that. What I propose to do, I take into account what's been said and the fact that you've pleaded guilty at an early opportunity and also the totality principle, so I'll make the terms concurrent. (ts 23 September 2009, 2 ‑ 4)
The sentences imposed by the magistrate
In relation to the charge of dangerous driving occasioning grievous bodily harm, the magistrate sentenced the appellant to 18 months' imprisonment and he was disqualified from holding or obtaining a driver's licence for 3 years.
On the charge of failing to render assistance to those injured, having left the scene of the accident, he was sentenced to 12 months' imprisonment and disqualified from holding or obtaining a driver's licence for 2 years.
On the charge of dangerous driving occasioning bodily harm, he was sentenced to 6 months' imprisonment and disqualified from holding or obtaining a driver's licence for 12 months.
On the 0.05 offence, he was fined $100 and ordered to pay costs of $114.20.
He was made eligible for parole.
The appeal to Simmonds J
The appellant appealed against the sentences imposed by the magistrate on the following grounds:
(a)the total effective term of 18 months' imprisonment was manifestly excessive;
(b)the magistrate erred in imposing an immediate term of imprisonment rather than a suspended term of imprisonment; and
(c)the magistrate erred by formulating the sentence upon the basis that he was obliged at law to impose a term of imprisonment to be served immediately for the offence of dangerous driving causing grievous bodily harm.
The last ground was added at the hearing of the appeal.
His Honour dismissed all grounds of appeal.
The grounds of appeal to this court
There are three grounds of appeal alleging that Simmonds J erred in law:
(a)by concluding that the magistrate did not impose a term of immediate imprisonment for the offence of dangerous driving causing grievous bodily harm on the basis that he was obliged to do so as a matter of law (ground 1);
(b)in deciding that the magistrate did not erroneously conclude that the consequence of grievous bodily harm could not be distinguished from the consequence of death for the purposes of the penalty (ground 2);
(c)by concluding that the sentence imposed in relation to the charge of dangerous driving causing grievous bodily harm was not manifestly excessive (ground 3).
Ground 1
The sentencing remarks by the magistrate reveal that he considered that a term of immediate imprisonment was the 'only' option open to the court and that he had 'no alternative' but to impose a custodial sentence to be served immediately. Earlier in his reasons, the magistrate referred to the case of Wood v The Queen [2002] WASCA 95; (2002) 130 A Crim R 518. In that case, Murray J at [42] said that the Crown prosecutor in that case had submitted that the circumstances of the offence being dealt with in that case fell within the 'more serious category of offences'. His Honour said that was a reference to Smith v The Queen [1976] WAR 97, 107 which in turn referred to an English case, R v Guilfoyle [1973] 2 All ER 844, where at 845 Lawton LJ said:
Cases of this kind fall into two broad categories; first, those in which the accident has arisen through momentary inattention or misjudgment, and secondly those in which the accused has driven in a manner which has shown a selfish disregard for the safety of other road users or of his passengers, or with a degree of recklessness. A subdivision of this category is provided by the cases in which an accident has been caused or contributed to by the accused's consumption of alcohol or drugs.
The magistrate then referred to 'a New South Wales judgment' where the court said that a non‑custodial sentence for an offence of dangerous driving causing grievous bodily harm should be an exception and almost invariably confined to cases involving momentary inattention or judgement'.
That view of the law overlooks what has been said in subsequent cases in this court: see Eves v The State of Western Australia [2008] WASCA 7; (2008) 49 MVR 259 [11] Steytler P, [21] ‑ [22] McLure JA. In Eves it was made clear that the categorisation of offences in the manner indicated in Guilfoyle is of little, if any, assistance in this State and may give rise to error.
The magistrate fell into such error in this case when he stated, in effect, that the penalty was to be determined by deciding whether the offences fell into either the 'momentary inattention or misjudgement' category or the more serious category. Having concluded that the offences did not involve momentary inattention or misjudgement (a conclusion which was not justified on the material before him), the magistrate then decided that the 'only' option was immediate imprisonment and that he had 'no alternative' but to impose a custodial sentence to be served immediately.
Simmonds J decided at [46] that the magistrate did not make such an error. The respondent submitted that his Honour was correct in that conclusion because the magistrate had taken into account all relevant considerations and arrived at an appropriate sentence. It is true that the magistrate did say that he had regard to the provisions of the Sentencing Act 1995 (WA) and the options available to the court in respect of sentencing, but that does not overcome his misplaced reliance and application of the stated principle in Guilfoyle and the statements made later in his sentencing remarks that the 'only' option was, and that he had 'no alternative' but, to impose a term of immediate imprisonment. Those remarks revealed error and Simmonds J erred in concluding that the magistrate did not err.
Ground 1 should be upheld.
Ground 2
Ground 2 concerned Simmonds J's conclusion that no error was revealed by the magistrate's statement in the second paragraph of his sentencing remarks. This was to the effect that s 59 of the Road Traffic Act 1974 (WA) makes no distinction between dangerous driving causing death and dangerous driving causing grievous bodily harm 'as far as penalty goes'. The ground alleges that this statement involved a misdirection on the law, which was part of the magistrate's reasoning governing the sentence to be imposed on the first charge.
This was not made the subject of a ground of appeal before Simmonds J, but it was fully argued and dealt with before his Honour as though it were a ground of appeal.
The magistrate did err in stating that there was no distinction between dangerous driving causing death and dangerous driving occasioning grievous bodily harm 'as far as penalty goes'. The maximum penalty for dangerous driving causing death is 10 years' imprisonment and the penalty for dangerous driving causing grievous bodily harm is 7 years: s 59(3)(b) Road Traffic Act. The respondent submitted that the magistrate meant to indicate that there was no distinction in terms of summary penalty, but even that is not a correct statement of the law. It is true that a jurisdictional limit of 3 years' imprisonment applies when those charges are dealt with summarily, but the law is clear that the starting point for the calculation of an appropriate sentence is not confined by the jurisdictional limit. The jurisdictional limit merely marks the upper limit of the magistrate's sentencing powers: see Wiltshire v Mafi [2010] WASCA 111 [24] ‑ [33].
Simmonds J considered that there was no error on the part of the magistrate because he was 'simply describing the summary conviction penalty structure' [41]. That, with respect, reveals the same error in reasoning. Ground 2 should be upheld.
Ground 3
Ground 3 was only necessary if grounds 1 and 2 failed. Grounds 1 and 2 have succeed and, as a result, it is not necessary to consider whether the sentence imposed was manifestly excessive. The appellant only appealed against the sentence imposed for the charge of dangerous driving occasioning grievous bodily harm. This sentence should be set aside and in lieu, this court should resentence the appellant by exercising its powers under s 14(1)(c) of the Criminal Appeals Act 2004 (WA), which applies by reason of s 18. The sentences imposed by the magistrate for the other charges should be varied under s 41(2) and (3) of the Criminal Appeals Act.
Section 14(2) Criminal Appeals Act 2004
Simmonds J considered that even if there had been error as alleged in ground 3 (ground 1 in the appeal to his Honour), then applying s 14(2) of the Criminal Appeals Act, no substantial miscarriage of justice had occurred. This provision applies to sentencing appeals: Wallam v Dent [2008] WASC 170 [30] ‑ [31]; Joyce v Gee [2010] WASC 76 [34].
Section 14(2) also applies to appeals from a single judge of the General Division of the Supreme Court to this court: see s 18 Criminal Appeals Act. The respondent did not submit that this court should conclude that if error was shown in Simmonds J's decision, that there was no substantial miscarriage of justice. Even if it had, the submission could not have succeeded because the task of the court in determining whether there has been any substantial miscarriage of justice is to make its own decision about the correct sentence: see Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300. That assessment is carried out below and that assessment is that lesser sentences should have been imposed. As a result, it cannot be said that there was no substantial miscarriage of justice.
Resentencing
The sentences to be imposed must be commensurate with the seriousness of the offence, and that must be determined by taking into account the statutory penalty and the circumstances of the commission of the offences, including the vulnerability of any victims, any aggravating factors and any mitigating factors. The court must not impose a sentence of imprisonment on an offender unless it decides that the seriousness of the offence is such that only imprisonment can be justified, or that the protection of the community requires it.
In this case, there were strong mitigating factors, which are recorded in Simmonds J's reasons. The appellant pleaded guilty and has demonstrated his remorse by working to pay for the property damage caused by the accident.
It is then necessary to take into account the circumstances of the commission of the offence, including the vulnerability of the victims. It is obvious that the consequences to the victim in the charge of dangerous driving occasioning grievous bodily harm were very serious. The victim Ms Massarotto suffered a severe closed head injury with diffuse axonal injury and multi‑trauma. The injuries have necessitated ongoing physiotherapy, occupational therapy, speech therapy and rehabilitation nursing. She remains severely disabled and requires assistance with all aspects of her self‑care and mobility. She has limited voice production and has to eat a modified diet because she continues to have a poor swallow as a result of her injuries. She has an ongoing risk of chest infection. She has limited use of her right arm and legs and requires assistance with transfers and is confined to a wheelchair when out of bed. It appears that these are permanent injuries and she will require access to care indefinitely. Parliament has determined that the consequence of the dangerous driving is part of the offence and it must be taken into account for the purpose of penalty. This factor weighs heavily in the basket of factors which have to be taken into account when imposing the appropriate sentence.
However, culpability is also an important factor. The circumstances show a very low degree of culpability. The appellant was not speeding at the time of the offences. He was travelling at the speed limit, which would have been permissible if he had not travelled through against a red light. He had consumed alcohol, but after consuming alcohol he had had something to eat and had then gone to sleep for three hours before rising and commencing his journey home. He mistakenly thought that more time had passed since his last drink than was the reality. There was no finding that alcohol caused the incident. He did not deliberately choose to run the red light. All indications are that he did not notice that the light was red. He had travelled through another intersection only 150 metres before the intersection where the accident happened and the lights at that intersection were green for the appellant. The only inference open was that he was momentarily inattentive to the lights facing him at the next intersection and that he travelled through it against the red lights because of that moment of inattention. The magistrate had no basis for concluding otherwise. In all other respects the appellant's personal circumstances were in his favour. He was employed and had no material criminal record.
Weighing all of those factors, it is then necessary to decide what sentence should be imposed. This court must not impose sentences of imprisonment unless the seriousness of the offence is such that only imprisonment can be justified.
The circumstances of the offence of dangerous driving occasioning grievous bodily harm are so serious that imprisonment rather than any lesser sentence should be imposed. The extent and permanence of the grievous bodily harm done to the victim, Ms Massarotto, was substantial. However, the other favourable factors, the plea of guilty, the expressions of remorse, the low level of culpability and the fact that there is no apparent need for personal deterrence, mean that the sentence should be lower than it might otherwise have been.
As to the charge of failing to stop immediately after the occurrence of the accident and for as long as necessary to comply with the requirements of the Road Traffic Act, all of the favourable factors mentioned above are relevant. The appellant did leave the scene for a time but he returned and submitted to a breath test. His departure from the scene is partly explained by his confusion and by the perceived risk to his person if he stayed in the vicinity.
On the charge of dangerous driving causing bodily harm to Mr Delderfield, all of the factors mentioned above are relevant, save that in this case attention must be directed to Mr Delderfield's injuries, which involved fractures.
On the charge of driving with an excess of 0.05 alcohol in his blood, it may be observed that the reading was just over the limit and was in circumstances where culpability was low because the appellant had some basis for believing that he would be able to lawfully drive his vehicle.
Leave to appeal should be granted, the appeal should be allowed, the sentence imposed by the magistrate in relation to the charge of dangerous driving occasioning grievous bodily harm should be set aside and the appellant should be resentenced as follows:
On the charge of dangerous driving occasioning grievous bodily harm, a sentence of 12 months' imprisonment should be imposed and the appellant should be disqualified from holding or obtaining a driver's licence for 3 years.
Pursuant to s 41(2) and (3) of the Criminal Appeals Act, the other sentences imposed by the magistrate should be varied as follows:
On the charge of failing to render assistance, the appellant should be sentenced to 9 months' imprisonment and disqualified from holding or obtaining a driver's licence for 2 years.
On the charge of dangerous driving occasioning bodily harm, the appellant should be sentenced to 6 months' imprisonment and disqualified from holding or obtaining a driver's licence for 12 months.
On the charge of driving with an excess of 0.05 alcohol in his blood, he should be fined $100 with costs of $114.20.
Taking into account totality principles, the terms of imprisonment should be served concurrently, as should the licence suspensions and disqualification periods. If the sentences of imprisonment were to be served immediately, then he should be eligible for parole.
It is then necessary to consider whether the sentences of imprisonment should be suspended. This requires a revisiting of all the factors that are relevant to the imposition of the sentence of imprisonment. Those factors, and particularly the low level of culpability, lead to the conclusion that all of the sentences of imprisonment should be suspended for a period of 12 months.
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