Abeyakoon v Brown - [2010] WASC 145

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: ABEYAKOON -v- BROWN [2010] WASC 145

CORAM: SIMMONDS J

HEARD: 11 FEBRUARY 2010

DELIVERED : 18 JUNE 2010

FILE NO/S: SJA 1112 of 2009

BETWEEN: SHANNON MICHAEL ABEYAKOON
Appellant
AND
PAULETTE ELIZABETH BROWN
Respondent

ON APPEAL FROM:
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 - Sentencing - Offences of dangerous driving involving grievous bodily harm, bodily harm and failure to stop - Blood alcohol offence - Errors in approach by reference to categorisation of offending - Whether total effective sentence of imprisonment manifestly excessive

Legislation:

Crimes Act 1990 (NSW), s 52A
Criminal Appeals Act 2004 (WA), s 14, s 40
Criminal Code (WA), s 5
Criminal Law Amendment (Homicide) Act 2008 (WA), s 38
Interpretation Act 1984 (WA), s 67
Road Traffic Act 1974 (WA), s 54, s 59, s 59A, s 59B, s 64AA
Road Traffic Amendment Act (No 2) 2007 (WA), s 22
Sentencing Act 1995 (WA), s 6, s 39, s 76

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Ms L B Black
Respondent: Mr S L Dworcan

Solicitors:

Appellant: James Chong Lawyers
Respondent: Director of Public Prosecutions (WA)

Case(s) referred to in judgment(s):

Ainsworth v D (a child) (1992) 7 WAR 102
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
Eves v The State of Western Australia [2008] WASCA 7
Furber v The Queen [2008] WASCA 233
Joyce v Gee [2010] WASC 76
Kay v The Queen [2004] WASCA 222
Knott v Moriarty [2010] WASC 36
Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665
Marshall v Lockyer [2006] WASCA 58
Mount Lawley Pty Ltd v Western Australian Planning Commission [2004] WASCA 149; (2004) 29 WAR 273
Poletti v Adams [2005] WASC 66
R v Guilfoyle [1973] 2 All ER 844
R v Jurisic (1998) 45 NSWLR 209
R v Olbrich [1999] HCA 54; (1999) 199 CLR 270
Sakkers v Thornton [2009] WASC 175
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Sheppard v Blakey [2001] WASCA 309
Smith v The Queen [1976] WAR 97
Taylor v The State of Western Australia [2009] WASCA 226
The State of Western Australia v BLM [2009] WASCA 88; (2009) 256 ALR 129
Wallam v Dent [2008] WASC 170
Withnell v Walker [2005] WASCA 8
Wood v The Queen [2002] WASCA 95

SIMMONDS J:

Introduction

This is an appeal against sentences of imprisonment imposed by a magistrate for four offences arising out of an incident of dangerous driving.
The background to and circumstances of the offending, which I have concluded were not in significant contest before the learned magistrate, were these.
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 had driven them, as she would not be drinking. The appellant and others were at the hotel until about 5.00 pm. The appellant drank about six full strength stubbies over that period. On their way back to the friend's place they picked up some fast food, which they ate after getting to that place at about 6.00 pm. 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 place.
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. It was at the latter intersection that the incident of dangerous driving occurred.
At the time of that incident the intersection of Morley Drive and Tonkin Highway was well lit by street lighting and visibility was good. The appellant's utility was seen to approach the intersection and contravene the red traffic light as it entered the intersection. The appellant did not remember what colour the light was when he entered the intersection. He did remember he was travelling at about 60 km per hour when he travelled through it.
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 on to 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 is no indication of 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 Jarrad Delderfield was seated in the front passenger seat. Both were injured in the incident, Ms Massarotto particularly seriously.
Ms Massarotto suffered injuries which counsel for the offender accepted before the learned magistrate were 'serious', and which were described in a medical report provided to the magistrate but not to me. That report was current as at August 2009. The prosecutor did not have a copy before him but referred to his belief it showed 'brain injuries'. In his sentencing remarks, the magistrate provided more detail, apparently from that medical report. I return to that detail below.
Mr Delderfield suffered injuries which the prosecutor described to the learned magistrate as involving a 'fracture'. It was common ground before me that there was also a medical report before the learned magistrate as to Mr Delderfield's injuries.
After hitting the second vehicle, the Excel, the appellant's utility continued forward, colliding head on with a stationary taxi, a Ford Falcon station wagon. The Falcon was, as described by the prosecutor, 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 Driver. There are no indications of any injuries to the driver of the Falcon.
At this point the appellant's utility came to a stop, facing west of 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'. The prosecutor stated to the learned magistrate that the appellant 'was aware that the accident [had] occurred' and he 'failed to check or render assistance to any other person involved in the crash' (25 August 2009, ts 4). His counsel stated to the learned magistrate that the appellant 'wasn't sure what had happened', and 'he wasn't fully aware that he had been the cause of the accident at that stage', adding that the appellant was 'quite dazed and confused and panicked'. Counsel stated that after the appellant had got out of his utility, someone came towards him whom he perceived as 'quite aggressive and abrupt'. The appellant 'panicked due to his confusion' and left the scene, walking down Morley Drive without knowing where he was going (23 September 2009, ts 3). His counsel further added that he 'didn't know what was going on' and so he rang his parents telling them 'Look, I've just had an accident. Can you come?' (23 September 2009, ts 3). None of the prosecutor, counsel or the learned magistrate returned to these matters. I consider that I should regard the sentencing as having proceeded on the basis that the appellant was aware the accident had occurred and had not remained at the scene after he exited his utility. However, he was not sure how the accident had occurred and was dazed and confused. He had panicked at the time of the incident.
The appellant had telephoned either his parents (on the account of his counsel) or his brother (on the account of the prosecutor) who informed the police. He returned to the scene after (on the account of the prosecutor with which counsel for the appellant appeared to take no issue) having spoken with the police. Those differences do not seem to me to have any significance for the sentencing.
At the scene the appellant provided a sample of his breath for a preliminary test. The result calculated back to the time of the incident was 0.059 g per 100 ml of blood.
On 25 August 2009 before Magistrate Tarr at Perth the appellant pleaded guilty to four charges.
One charge was for the offence that the appellant drove a motor vehicle on a road, Morley Drive, in a manner that was in all of the circumstances dangerous to the public or to any person and was involved in an incident occasioning grievous bodily harm to Ms Massarotto (the grievous bodily harm offence). This was an offence against s 59(1)(b) of the Road Traffic Act 1974 (WA) (the Road Traffic Act).
Another charge was for the offence that, being the driver of a vehicle involved in an incident occasioning bodily harm to another person, the appellant failed to stop immediately after the occurrence of the incident and for as long necessary to comply with the requirements of s 54(2) and s 54(6) of the Road Traffic Act (the failure to stop offence). This was an offence against s 54(3).
The third charge was for the offence that the appellant drove a motor vehicle on a road, Morley Drive, in a manner that was, having regard to all of the circumstances, dangerous to the public or any person and was involved in an incident occasioning bodily harm to Mr Delderfield (the bodily harm offence). This was an offence against the Road Traffic Act s 59A(1)(b).
The final charge was for the offence that the appellant drove a motor vehicle on a road, Morley Drive, with a blood alcohol content exceeding 0.05 g of alcohol per 100 ml of blood (the blood alcohol offence). This was an offence against the Road Traffic Act s 64AA(1).
At the hearing on 25 August 2009, after the prosecutor had put a statement of facts to him, the learned magistrate ordered a pre‑sentence report (PSR).
At the next hearing, on 23 September 2009, counsel for the appellant made a plea in mitigation, which included references to the PSR. The appellant was described as 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 seems to me, and neither seemed to the learned magistrate (as I will explain) to indicate a criminal record of any significance to this sentencing.
At the hearing on 23 September 2009, following the sentencing submissions, the learned magistrate delivered sentencing remarks at the conclusion of which he imposed the following sentences.
For the grievous bodily harm offence, he imposed a sentence of 18 months' imprisonment to be immediately served and disqualification from holding or obtaining a driver's licence for 3 years.
For the failure to stop offence he imposed a sentence of 12 months' imprisonment to be immediately served and disqualification from holding or obtaining a driver's licence for 2 years.
For the bodily harm offence he imposed a sentence of 6 months' imprisonment to be immediately served and disqualification from holding or obtaining a driver's licence for 12 months.
For the blood alcohol offence he imposed a fine of $100 with costs of $114.20.
The learned magistrate made all of the sentences of imprisonment and all of the disqualification periods concurrent, resulting in a total effective term of imprisonment of 18 months and a total effective disqualification period of 3 years. The appellant was made eligible for parole.

This appeal

By appeal notice dated 24 September 2009, the appellant sought leave to appeal against sentence. The appeal notice specified two grounds.
By orders made on 1 December 2009 Jenkins J granted leave to appeal on those two grounds.
During the hearing before me, counsel for the appellant sought leave to add a third ground. That ground was described, correctly in my view, as covering matters canvassed in the submissions she had made to me, both in writing and orally. Counsel for the respondent made no objection to my granting leave, and I did so. As will become apparent, I consider the third ground as one on which leave to appeal could properly be granted, in accordance with Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473.
The three grounds were as follows:
1.The total effective term of 18 months imprisonment imposed upon the Appellant was manifestly excessive having regard to the circumstances of the offences and the personal circumstances of the Appellant.
Particulars
(a)The circumstances of the offences, while serious, were not so serious as to require an immediate term of imprisonment without regard to all of the circumstances;
(b)The Learned Magistrate failed to give sufficient regard to the personal circumstances of the Appellant including that he was a first offender;
2.The Learned Magistrate erred in imposing an immediate term of imprisonment and failed to adequately consider the appropriateness of a suspended term of imprisonment which was plainly open in the circumstances.
Particulars
(a)The circumstances of the offences, while serious, were not so serious as to require an immediate term of imprisonment without regard to all of the circumstances.
(b)No adequate explanation was provided by the learned Magistrate as to why a suspended term would not be appropriate;
(c)The Learned Magistrate failed to give sufficient regard to the personal circumstances of the Appellant including that he was a first offender.
3.The Learned Magistrate erred when sentencing the Appellant to a total effective sentence of 18 months imprisonment 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 without regard to all the circumstances of the case.
I should note that each of the grounds of appeal concerns the sentence or sentences of imprisonment the learned magistrate imposed and not the licence disqualification or disqualifications and the fine. Counsel for the appellant confirmed that no appeal was taken against those latter penalties. However, as she put it to me, in determining the appeal I consider I should take account of the other penalties, in the case of the disqualifications because they were addressed to the same offending, and in the case of the fine for the blood alcohol offence because of the possibility of double punishment.
As the hearing before me on 11 February 2010, most of the submissions by both counsel were directed to the matters subsumed by ground 3. I also gave leave to the respondent to make supplementary written submissions in relation to that ground. Counsel for the respondent provided such submissions, dated 16 February 2010.
I will start with ground 3, before considering the other grounds.

Ground 3: error in approach to sentencing

This ground rested on the learned magistrate's reliance on his understanding and application of Wood v The Queen [2002] WASCA 95. That understanding and application appear from the following passages in the learned magistrate's sentencing remarks (23 September 2009, ts 2):
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 R, (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 R, which is often cited in this 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 misjudgment, 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 judgment.
I note the learned magistrate's reference to the Road Traffic Act s 59 making 'no distinction between death and grievous bodily harm as far as a penalty goes'. It was common ground before me that this was a reference to the summary conviction penalty of 3 years' imprisonment in s 59(1). The imprisonment penalty under s 59(3) for the offence against s 59(1)(b) for a person convicted on indictment is, in the absence of the statutory circumstances of aggravation, 10 years if the offender has caused death or 7 years if the offender has caused grievous bodily harm. For the statutory circumstances of aggravation see s 59B(3): it was common ground that none of these applied in this case.
Counsel for the appellant submitted that the learned magistrate was indicating that the matter of whether death rather than grievous bodily harm was caused was irrelevant to the exercise of his sentencing discretion. It is not clear to me that an error of that kind is subsumed within the present ground of appeal, although counsel for the respondent did not object to the raising of that matter while at the same time not engaging it in his submissions. I did not take that as his acceptance of the submission.
In my view, it would clearly have been an error for the learned magistrate to have held that the consequence of grievous bodily harm should be equated with that of death for the purposes of the summary conviction penalty to be imposed under s 59(1). The difference in penalty structure between s 59(1) and s 59(3) does not, in my view, compel a different conclusion. There is no doubt that the more serious the consequences of the s 59(1) offence, the more serious the offence, although as I will indicate below care must be taken to avoid double punishment when the consequences give rise to multiple offences: see Wood [66] (Murray J) on s 59 before the change to the present penalty structure of s 59(3), when its counterpart did not make the present distinction between death and grievous bodily harm.

However, I do not consider the learned magistrate made that error, but was simply describing the summary conviction penalty structure. I see this most clearly in his reference to New South Wales authority in a passage which I will shortly reach.
The learned magistrate went on to say, in that portion of his sentencing remarks to which counsel for the appellant drew my attention for the purposes of the present ground (25 September 2009, ts 2 ‑ 3):
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.
The learned magistrate then referred to the circumstances of the dangerous driving and its consequences; to the need for general deterrence; to it being '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'; to the offender being remorseful, as demonstrated by his early plea of guilty; to the authorities being 'quite clear … in regard to these matters'; to the learned magistrate being aware of the Sentencing Act 1995 (WA) and 'the options that are available to the court'; and to the summary conviction penalties under the Road Traffic Act s 59(1) of 'imprisonment for three years or a fine of 720 ‑ no that's $36,000 plus a disqualification of the person's driver's licence'.
The learned magistrate then went on to say, in further passages to which counsel for the appellant drew my attention for the purposes of the present ground, (25 September 2009, ts 3 ‑ 4):
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 R, 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. [Emphasis added]
I took counsel to be emphasising the words emphasised above.
I also note the learned magistrate's reference to a New South Wales authority distinguishing between sentencing for dangerous driving causing death and for dangerous driving causing grievous bodily harm, and to that authority's relevance to his sentencing. I consider that this clearly indicates the learned magistrate appreciated the need to distinguish between cases of death and of grievous bodily harm.
I am of the view, on reading the reasons of the learned magistrate as a whole, that he did not make the error attributed to him by the present ground. While language he used (being that which I have emphasised) standing alone, would support the opposite conclusion, the learned magistrate's reliance on Wood must also be taken into account. In that case both of the judges in the majority noted that the sentencing judge in that case had properly exercised his discretion to determine, in the circumstances of the case before him, including matters personal to the offender, that 'a fine or a sentence of suspended imprisonment would not sufficiently mark the seriousness of the offence': [82] (Murray J); and see [108] (Miller J). The learned magistrate had, in my view, proceeded in this case by his reference to the remorse of the appellant expressed in his plea of guilty and to the fact it was 'not uncommon' in cases of this kind for the offender not to have any prior convictions, to be young and to be of good character. All of those were present in this case, except for the matter of prior convictions, which were, for traffic offences of a completely different and much less serious character. This would have justified the learned magistrate taking them to be irrelevant to his sentencing. The learned magistrate also emphasised the seriousness of the offending and the need for general deterrence.
However, it must be noted that the learned magistrate appears to have erred, in two other respects, in ways different from that assigned by the present ground of appeal. At the same time, both forms of error were addressed in argument before me by both counsel, and I consider they treated these as subsumed by the present ground. Accordingly I will so deal with them.
In my view, neither error is sufficient to sustain the present appeal.
The first respect was the learned magistrate's statement that there are two 'broad categories of cases' which he took from Wood. This appears to be a reference to Wood [42] (Murray J), referring to Smith v The Queen [1976] WAR 97, 107, which as Murray J noted referred with approval to R v Guilfoyle [1973] 2 All ER 844, 845 (Lawton LJ). Murray J reproduced the following from Guilfoyle 845, referring to cases of dangerous driving causing death:
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, 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.
However, it is important to note the following paragraph from Wood [43] (Murray J), referring to Ainsworth v D (a child) (1992) 7 WAR 102 and R v Olbrich [1999] HCA 54; (1999) 199 CLR 270:
That proposition was again referred to with apparent approval by Malcolm CJ in Ainsworth … at 116. However, this Court has not bound itself as a general proposition to such a dichotomy of culpability in relation to sentencing for cases of dangerous driving. In my opinion, while the remarks quoted above usefully focus attention upon the driving behaviour of the offender when considering his or her culpability for sentencing purposes, the division of cases into broad categories may, if one is not careful, obscure the essential task of determining where to place the particular case, in the circumstances of the commission of the offence, into a hierarchy of seriousness. The problem is not dissimilar to the difficulty which may arise in a drug trafficking case where a categorisation of cases into those where the offender may properly be described as a courier and those where he or she is to be regarded as a principal in the criminal enterprise is often employed: cf … Olbrich ….
It was common ground that the learned magistrate did not appear to take account of the views in the paragraph just quoted.
Those views, which Murray J recapitulated in Kay v The Queen [2004] WASCA 222 [3], were recognised in Eves v The State of Western Australia [2008] WASCA 7 [11] (Steytler P) as follows:
As to the balance of the matters raised by this appeal, I need say no more than that I agree with what has been said by McLure JA. However, I should specifically endorse her comments concerning the inapplicability, in this State, of the approach taken by the English Court of Appeal in … Guilfoyle … A division of cases of this kind into two broad categories, one involving momentary inattention or misjudgment and the other involving a selfish disregard for the safety of others or a degree of recklessness, for the purposes of sentencing is, for the reasons given by McLure JA, prone to lead to error. That risk has previously been recognised by Murray J in Wood … [43] and in Kay [3] (see also the comments of Miller J in Kay [53]).
I also note the comments of McLure JA to which I consider Steytler P was referring, appearing at [21] - [23]:
I turn now to the sentencing judge's conclusion that the appellant's conduct fell into the more serious category of dangerous driving. The Court of Criminal Appeal in this State has on a number of occasions cited with approval the decision of the Court of Appeal in England in … Guilfoyle … in which it is stated that cases of this kind fall into two broad categories being 'first, those in which the accident has arisen through momentary inattention or misjudgement, 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': Smith …; Wood …; Kay ….
The court in Guilfoyle said that offenders in the first category with a good driving record should normally be fined and those in the second category would ordinarily receive a custodial sentence. In my respectful opinion, the approach taken by the English Court of Appeal in Guilfoyle is of little, if any, assistance in this State and may give rise to error. The circumstances of the offence of dangerous driving causing death and those of the offender will give rise to differing degrees of culpability on a continuum between low and high which is not consistent with separating the conduct into two categories. Nor is it consistent with the Sentencing Act 1995 (WA) which provides for a variety of sentencing options in addition to a fine and immediate imprisonment.
The real question in this case is not into which category the conduct falls but whether a non-custodial sentence was open on the facts found by the sentencing judge. In my respectful opinion the sentencing judge was, having regard to the circumstances of the offences, the type of sentence customarily imposed in such circumstances and the importance of general deterrence, correct to conclude that a term of immediate imprisonment was the only available sentencing option. I would dismiss grounds 3 and 4.
See, also Taylor v The State of Western Australia [2009] WASCA 226 [18] (Wheeler JA, with whose reasons McLure P and Owen JA agreed). Wheeler JA referred to the form of that error that consisted in a determination that because behaviour could not be characterised as momentary inattention or misjudgement it 'necessarily fell into the other category of serious behaviour for purposes of sentencing'.
However, in my view, it is not necessarily error to have regard to whether dangerous driving fell within one or other category, although so doing may well lead into error, as explained in Eves [11] and [21] ‑ [23] above. It is true that the learned magistrate noted that, by reason of the consumption of alcohol and going through a red light 'in the way the accused did', it could not be said that the case fell into the first category. This seemed to lead him to conclude or confirm that the case fell into the second, more serious category.
However, I do not consider this led the learned magistrate to fail to consider whether a non-custodial sentence was open on the facts found by him or instead that a term of imprisonment was the only available sentencing option: see Eves [23] (McLure JA). I am of this view because of the learned magistrate's reference to all of the circumstances of the offences and to the importance of general deterrence, and because of my review of the sentences customarily imposed in such circumstances. I undertake that review below, in relation to ground 1.
In particular, it was not an error for him to take into account the fact the offender had consumed alcohol, whether or not that consumption caused or contributed to the incident: see on the relevance of alcohol consumption, Wood [45] ‑ [46]. I did not understand counsel for the appellant to contend that the appellant's consumption of alcohol earlier in the day, followed later by his decision to drive, could not be taken into account, although her submission was that those matters were 'marginally relevant only'.
On my reading of Wood [45] and [46] that is to view those matters too favourably to the appellant. At the same time, it would have been an error to weigh that consumption of alcohol followed by the decision to drive as heavily as if alcohol had been shown, which it had not, to have caused or contributed to the incident. In that regard, I have noted what the learned magistrate had to say with respect to the particular effect of that consumption before announcing his sentences (ts 4):
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.
I have considered whether the last reference was a finding on alcohol's role in the incident. Compare the conclusion said by the sentencing judge in Kay to be 'well open on the facts' that the driver of the road train in that case was attempting to beat a train across a level crossing. If that was a finding that the road train was travelling in that way, that finding could not be made on the evidence in that case: Kay [26] (Miller J with whose reasons in this respect Murray and Wheeler JJ agreed). In this case it was no part of the prosecutor's statement of material facts that the appellant's alcohol consumption had caused or contributed to the incident. However, in my view, the reference in this case was a description by the learned magistrate of what, consistently with Wood [45] and [46], contributed to making the driving 'dangerous' within the Road Traffic Act s 59(1)(b). It did not indicate he had reached a conclusion beyond reasonable doubt or otherwise that alcohol had caused or contributed to the incident.
It was also not an error for the learned magistrate to take account of the appellant's entry into the intersection, against the red light, 'in the way the accused did', as relevant to his sentencing. It seems to me he meant to refer to entry into the intersection in the conditions described by the prosecutor in terms not challenged by the defence and as added to by the defence. The terms were of an intersection controlled by traffic lights, 'well lit by street lights; visibility good' and against a red light, at which intersection four motor vehicles were hit by the appellant's motor vehicle. Counsel for the offender added that the appellant travelled into the intersection at approximately 60 km per hour, which was the speed limit.
The learned magistrate's remarks concerning the consumption of alcohol and entry into the intersection sufficiently indicate, in my view, the basis for his view that there was a degree of culpability greater than low. This was a degree of culpability which the learned magistrate described by reference to the category of driving of a kind which showed a reckless disregard for the safety of other road users. While the learned magistrate's concern to locate the driving in one or other of the two categories he described was an error, I do not consider his approach prevented him from taking account of where in the continuum of dangerous driving involving grievous bodily harm the appellant's driving was to be located.
It may also be accepted there was an error in another respect, in the learned magistrate's reference to the guidelines on sentencing from 'a New South Wales judgment' (23 September 2009, ts 2) as 'accepted by ‑ or adopted by the authorities' (23 September 2009, ts 4). This appears to be a reference to R v Jurisic (1998) 45 NSWLR 209, a guideline judgment on Crimes Act 1990 (NSW) s 52A offences, which was considered in Wood [69] ‑ [70] (Murray J). However, Murray J referred to the guidelines in Jurisic as ones 'I would not, in relation to s 59 of the Road Traffic Act, think it proper to follow … because the offence is so much more serious in NSW than is the case in this State': [70].
In that last respect, I note that the Road Traffic Amendment Act (No 2) 2007 (WA) s 22, effective 15 March 2008, increased the maximum term of imprisonment on indictment where the offence of dangerous driving against s 59(1)(b) was not committed in circumstances of statutory aggravation, from 4 years without distinction between driving causing death and driving causing grievous bodily harm, to 10 years, again without such distinction. The Criminal Law Amendment (Homicide) Act 2008 (WA) s 38, effective 1 August 2008, changed the penalty structure under s 59(1)(b) so that the penalty of 10 years was reserved for death while 7 years was set for grievous bodily harm. Those latter two penalties were the levels of imprisonment under the Crimes Act 1990 (NSW) s 52A at the time of Jurisic as described in Wood.
However, it was not contended that this made the Jurisic guidelines relevant in this State, given that none of the authorities of Wood, Kay, Eves or Taylor have indicated this. Rather, the approach to be followed in this state is that in Eves [11] and [21] ‑ [23].
Nor was it suggested there is a tariff for sentences for offences against the Road Traffic Act s 59.
However, as I have previously explained the learned magistrate, in my view, determined his sentence by reference to the matters in Eves [11] and [21] ‑ [23]. His sentence for the grievous bodily harm offence (18 months) was not one that in my view followed the particular guideline he identified from the New South Wales authority. That guideline was that where there is a 'material degree' of any 'aggravating factor' a custodial sentence of less than 2 years would be 'exceptional' (Jurisic 231).
In those circumstances, I do not consider the error in referring to the New South Wales guidelines in Jurisic as the learned magistrate did was an error sufficient to sustain the present ground.
In any event, even if ground 3 were made out because of the errors in the two respects I have identified, I consider the 'proviso', in the Criminal Appeals Act 2004 (WA) s 14(2), would apply here. This is for the reasons below, in relation to ground 1.
However, counsel for the appellant submitted that the proviso had no application to this case, either on the basis that the proviso does not apply to sentencing appeals, or if ground 3 were made out there had been a failure to sentence such that the proviso should not be applied.
With respect to the first submission, counsel for the appellant was unable to cite any authority. However, as counsel for the respondent pointed out in his written supplementary submissions of 16 February 2010 there is authority directly contrary to the submission: see Wallam v Dent [2008] WASC 170 [30], [31] (Jenkins J). I consider that, as stated in Joyce v Gee [2010] WASC 76 [34] (Mazza J), 'it is now settled that the proviso potentially applies to appeals against sentence from a magistrate'.

With respect to the second submission, I consider it is also settled, as also stated in Joyce [34], that the proviso will usually apply if it established that 'the error or errors made by a court at first instance would not have led to any reduction in the sentence that was imposed by that court'.
However, on the authority of Wallam it should be noted that this is subject to further considerations that need to be borne in mind, as indicated at [32] ‑ [33]:
However, not every case will be able to be so analysed. In Weiss v The Queen [2005] 224 CLR 300 [45] the High Court considered the meaning of a similar provision from Victoria in the context of an appeal against conviction. The provision said that the Court of Appeal may, notwithstanding that in its opinion that the point raised in the appeal might be decided in favour of the appellant may dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred. The court said:
'… no single universally applicable criterion can be formulated which identifies cases in which it would be proper for an appellate court not to dismiss the appeal, even though persuaded that the evidence properly admitted at trial proved, beyond reasonable doubt, the accused's guilt. What can be said, however, is that there may be cases where it would be proper to allow the appeal and order a new trial, even though the appellate court was persuaded to the requisite degree of the appellant's guilt. Cases where there has been a significant denial of procedural fairness at trial may provide examples of cases of that kind.'
These principles can be extrapolated to an appeal against sentence to which the Criminal Appeals Act s 14(2) applied. There will be cases where it is appropriate to allow an appeal against sentence even though the sentence imposed by the magistrate was not excessive or greater than the appeal court would have imposed if sentencing the appellant at first instance. Those cases will be uncommon and as in the case of appeals against conviction it is not possible to articulate the criterion to identify the cases which will fall into this category.
As I understood the submissions of counsel for the appellant, it was on principles of that kind she sought to rely.
However, in my view, the errors in the two respects I have identified were not of a kind to which those principles apply. The appellant had been properly sentenced in the sense I described when I considered the other aspects of ground 3. Neither of the errors I have identified, in my view, denied the appellant procedural fairness, or were such as to show that the appellant had not had a proper sentencing hearing in which the circumstances of the offending and factors personal to him had been taken into account.
I turn now to consider the other error in sentencing the appellant alleges, ground 2, before turning to consider ground 1.

Ground 2: error in imposing a sentence of immediate imprisonment

It was not contended that the learned magistrate erred in concluding that a sentence of imprisonment was the only appropriate sentence. See Sentencing Act s 39(3) and s 6(4).
I did not understand the principles of law applicable to the present ground to be in contest. Having considered that a sentence of imprisonment is the only appropriate penalty (see Sentencing Act s 76(2)), it is necessary for a sentencing judge to determine whether or not to impose a sentence of suspended imprisonment and in doing this 'to look again at all the matters relevant to the circumstances of the offence as well as those personal to the offender': Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 [85] (Kirby J).
In my view, it could not be contended that the learned magistrate failed to consider the sentencing option of suspended imprisonment. Three passages from his sentencing remarks, taken together, lead me to that view:
1)his reference to the 'options that are available to the court' (23 September 2009, ts 3);
2)his reference shortly afterwards to Wood in terms that (23 September 2009, ts 3):
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.
3)his conclusion that 'in all the circumstances, I have no alternative but to impose a custodial sentence to be served immediately' (23 September 2009, ts 4).
In my view, the learned magistrate had sufficient regard to all of the circumstances, including the personal circumstances of the appellant, including his offending record. I note for that purpose the learned magistrate's account of the circumstances of the offending and his emphasis on the importance of general deterrence. That emphasis for the offence is amply supported by the authorities. See Wood [68] (Murray J) referring to authority on dangerous driving causing grievous bodily harm. I also note the learned magistrate's remarks, immediately after he laid that emphasis, which I have previously quoted but which I quote again for convenience (23 September 2009, ts 3):
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.
Immediately following those remarks, the learned magistrate referred to the appellant's remorse, demonstrated by his 'early plea of guilty' (23 September 2009, ts 3).
It was not in contest that his Honour had before him the appellant's criminal and traffic offence record from the PSR. I have previously considered that record.
In my view, the quoted remarks and the subsequent references just described, in the context of the record I have considered, indicate that the learned magistrate paid sufficient regard to the personal circumstances of the offender, including that he was effectively a first offender.
Particulars (a) and (c) of the present ground are not made out.
As to particular (b), with respect to the lack of an adequate explanation of why a suspended sentence was not appropriate, the applicable principles appear to be the following.
An inadequacy of reasons 'does not necessarily amount to an appealable error'; however, an inadequacy 'such as to give rise to a miscarriage of justice' may lead an appeal court to intervene: Mount Lawley Pty Ltd v Western Australian Planning Commission [2004] WASCA 149; (2004) 29 WAR 273 [29]. Inadequacy producing a miscarriage of justice is shown if any reasons given are not sufficient to enable an appeal court to consider and determine whether or not the decision was erroneous: Marshall v Lockyer [2006] WASCA 58 [344] (Murray AJA).
In my view, no inadequacy of reasons producing a miscarriage of justice within those principles is made out here. I again note the learned magistrate's reference to Wood (quoted above) in the context of his conclusion that the offending fell into the 'second category', as well as his reference to the other circumstances as I have indicated. The learned magistrate was, in my view, indicating that the circumstances of the offending as he had described them, considered with the importance of general deterrence, meant, in all of the other circumstances of the case as he had described them, that a term of immediate imprisonment was the only available sentencing option. See Eves [23] (McLure JA).
Accordingly, I consider that particular (b) is not made out. Thus, I consider ground 2 not to be made out.
I turn now to ground 1.

Ground 1: total effective sentence manifestly excessive

I consider the applicable principles to be as I described them in Sakkers v Thornton [2009] WASC 175 [50] ‑ [52] referring to Furber v The Queen [2008] WASCA 233, among other authorities, as follows:
A convenient general statement of those principles is in R v Taitand Bartley (1979) 24 ALR 473, 476 (Fed Ct, Full Ct, Brennan, Deane and Gallop JJ) as follows:
'An appellate court does not interfere with the sentence imposed merely because it is of the view that that sentence is insufficient or excessive. It interferes only if it be shown that the sentencing judge was in error in acting on a wrong principle or in misunderstanding or in wrongly assessing some salient feature of the evidence. The error may appear in what the sentencing judge said in the proceedings, or the sentence itself may be so excessive or inadequate as to manifest such error (see generally, Skinner v R [1913] HCA 32; (1913) 16 CLR 336-40 at 339; R v Withers (1925) 25 SR (NSW) 382 at 394; Whittaker v R [1928] HCA 28; (1928) 41 CLR 230 at 249; Griffiths v R (1977) 15 ALR 1–17 at 15).'
See also House v The King (1936) 55 CLR 499, 505 (Dixon, Evatt and McTiernan JJ); and Cranssen v The King (1936) 55 CLR 509, 519 - 520 (Dixon, Evatt and McTiernan JJ).
In respect of the matter of a sentence 'so excessive or inadequate as to manifest such an error' (Tait 476), it is accepted that such a sentence is one that falls 'outside the range of a sound exercise of sentencing discretion': Furber [46] (Murray AJA); see also [1] (Buss JA) and [2] (Miller JA).
See, also, Sheppard v Blakey [2001] WASCA 309 [15] (McLure J) and Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665, 671 ‑ 672.
Sheppard [17] states that the matters I should consider in determining whether or not a sentences is manifestly excessive are as follows:
Further, to determine whether a sentence is excessive, it is necessary to view it in the perspective of the maximum sentence prescribed by the law for the crime, the standards of sentencing customarily observed with respect to the crime, the place which the criminal conduct occupies in the scale of the seriousness of crimes of that type and the personal circumstances of the offender: R v Chan (1989) 38 A Crim R 337 at 342.
I took it there was no contest as to a statement of the applicable principles of the foregoing kind.
I understood particulars (a) and (b) of this ground to be directed to matters to be particularly borne in mind in assessing whether or not the total effective term of imprisonment of 18 months, to be immediately served, was manifestly excessive by reference to those principles.
Counsel for the appellant contended that I should consider the sentences for each of the offences individually but acknowledged I would nonetheless need to have regard to how the sentences of imprisonment might be aggregated, as the ground of appeal related to the total effective sentence.
I begin with the grievous bodily harm offence.
I have already described the maximum penalties in the Road Traffic Act s 59 for the grievous bodily harm offence. Counsel for the appellant put to me that it was the summary conviction penalty in s 59(1) which was the relevant maximum, not that in s 59(3) for the person convicted on indictment. Counsel accepted that the position appears to be established that where a penalty for a crime is prescribed, with a lower summary conviction penalty also prescribed for that offence, it is the former penalty which is the relevant maximum. See Knott v Moriarty [2010] WASC 36 [53] ‑ [55] where I refer to the authorities, including Withnell v Walker [2005] WASCA 8 [13] (Miller J), which appears to be at odds with that position, and which there I seek to explain. See, also Poletti v Adams [2005] WASC 66 [23] (Blaxell J).
Counsel for the appellant, while making particular reference to Withnell, did not take issue with the authorities for the position I have described. Rather, she submitted they were not applicable, in view of the form of the Road Traffic Act s 59. As I understood the argument, s 59 created two forms of the offence, one to which the summary conviction penalty applied and the other to which the penalty for convictions on indictment applied.
I do not consider that the position I have described is inapplicable to s 59. By s 59(1) a 'crime' is created. This makes the offence an indictable offence: see the definition of 'crime' in the Interpretation Act 1984 (WA) s 67. The provision of a summary conviction penalty for that 'crime' and the separate provision of a penalty for a person convicted on indictment for that offence, in my view, does not mean that two separate offences are created, but rather that the offence is an 'either way' offence, to which the Criminal Code (WA) s 5 is capable of application: see s 5(1).
Therefore, authorities including sentencings on indictment for offences against the Road Traffic Act s 59 involving grievous bodily harm are relevant for my purposes. Three authorities on sentencings for offences involving grievous bodily harm were cited. They were Ainsworth (conviction on a plea of guilty of a juvenile offender in the Children's Court; driving involving unlawful use of a motor vehicle where offender had been awake for more than 24 hours after using amphetamines; serious prior record; 9 month suspended detention order set aside; no evidence of remorse or apology; 12 month detention order substituted; no apparent challenge to licence disqualification for life), Kay (conviction following trial in the District Court; driving road train at inappropriate speed; not keeping proper look out at level crossing; 'one of the worst of its kind'; apart from one grievous bodily harm, two deaths and one bodily harm also involved; significant prior record including road train collisions; sentence for grievous bodily harm reduced from 2 years to 1 year 4 months; sentence for bodily harm unchanged at 8 months; total effective term of imprisonment reduced from 8 years to 6 years; no apparent challenge to licence disqualification for life) and Taylor (conviction following trial in the District Court; offender 18 years old at time of trial, 20 years old at sentencing; no record but had one driving offence involving alcohol; offender was sober; driving came at end of short race where driving was at 90 kph in an 80 kph zone; dangerous driving involved death; sentence of 14 months' immediate imprisonment for grievous bodily harm not challenged; total effective sentence of imprisonment reduced from 26 months to 20 months; no apparent challenge to total licence disqualification of 2 years).
Four authorities on sentencings for dangerous driving involving death were cited. They were Wood (conviction following trial in the District Court; offender 22 years old; tiredness following lack of sleep of which the offender was aware at the time of driving; no record; sentence of 18 months' immediate imprisonment not disturbed on appeal; no indication of licence disqualification), Kay (sentence of 2 years 4 months for each death), Taylor (sentence of 26 months for death reduced to 20 months) and Eves (conviction following trial in the District Court; driving involved towing trailer which was swerving to which offender's attention drawn by other drivers; offender 29 years old; driving involving three deaths; offence of dangerous driving as a juvenile, one offence as an adult of refusing to submit to a breath test; no change to sentences of 20 months for each offence; total effective sentence of imprisonment of 5 years arrived at by making each sentence cumulative; reduced by partial cumulations to 3 years and 4 months; no apparent change to 2 years licence disqualification for each offence, made cumulative for a total of 6 years). Those four authorities must of course be approached with very great caution, because of the difference between dangerous driving involving death and dangerous driving involving grievous bodily harm.
This brief survey would indicate that the sentence of 18 months' imprisonment for the grievous bodily harm offence was at the least severe. However, it might be contended, as I understood counsel for the respondent to be contending, that that appearance of severity was reduced by the presence of two factors: the appellant's consumption of alcohol before driving and the nature and consequences of the grievous bodily harm suffered (on the medical evidence).
I have previously described how the learned magistrate took into account the appellant's consumption of alcohol. In my view, it is relevant to note that the appellant's resultant blood alcohol level, while sufficient to give rise to the offence in the Road Traffic Act s 64AA, was not greatly in excess of the threshold of 0.05. The appellant was separately sentenced for that offence. It is important where he was so sentenced to avoid double punishment, as by adjusting the otherwise appropriate sentence, provided that correct sentencing principles are applied: see Eves [26], [27] (McLure JA). It was not contended in this case that there was double punishment. I consider this was a case where an adjustment would have been appropriate.
For these reasons, I do not consider that the consumption of alcohol has a significant role in reducing the appearance of severity. It did have a role in placing the driving above the low end of the continuum of dangerous driving, as I earlier indicated.
As to the nature of the grievous bodily harm suffered and its consequences, counsel for the respondent at the hearing provided a medical report as an attachment to an affidavit sworn by him on 9 February 2010. This report was dated 9 February 2010 and was from a consultant in rehabilitation medicine who stated that he has been the victim's consultant since 3 March 2009. Counsel for the respondent submitted I could consider this report in determining the seriousness of the nature and consequences of the victim's injuries in the exercise of my power to admit evidence under the Criminal Appeals Act s 40(1)(e). Counsel for the appellant did not oppose such admission but submitted it did not advance matters in the appeal. I took this to be a submission that the report did not add anything of significance to the report of August 2009 that was before the learned magistrate.
I consider that I may take account of the matter in the report. It describes tragic injuries: a 'severe closed head injury' and 'permanent injuries and resulting disability' such that 'she will require access to care indefinitely'. I consider this goes beyond what apparently was available to the learned magistrate in the medical report of August 2009, at least in respect of the consequences of the injuries. The learned magistrate described them by reference to 'the report' as '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' (23 September 2009, ts 3). It cannot be doubted that on either report the injuries were very serious and, on the later report, likely to have serious long term consequences.
At the same time I must note that in those authorities, Ainsworth and Taylor, in which there is some detail as to the nature and consequences of the grievous bodily harm before the court, that detail also points to very serious injuries with likely serious long term or permanent effects in each case: see Ainsworth at 110 ‑ 111, 115; and Taylor [8] and [11].
It is, of course, very difficult to compare injuries of different kinds in cases of this sort. However, I do not consider that the medical evidence in the form of the report of 9 February 2010 has a significant role in reducing the appearance of severity. At the same time it has a role in placing the grievous bodily harm in terms of its nature and consequences towards the more serious end of the continuum of such nature and consequences.
However, there is a further matter of significance in relation to the present ground. All of the authorities I have referred to were decided under the Road Traffic Act s 59 on offences committed before the increase, effective 15 March 2008, in the maximum penalty of imprisonment for prosecutions on indictment made by the Road Traffic Amendment Act (No 2) 2007 (WA) s 22, and thus before the later change in the structure of penalty for such prosecutions made by Criminal Law Amendment (Homicide) Act 2008 (WA) s 38. I note that the s 22 of the 2007 Act also increased the summary conviction penalty for the offence against either s 59(1)(a) or s 59(1)(b) from 18 months to 3 years. I have already dealt with the matter of which maximum is relevant for the purposes of assessment of sentence.

An increase in the relevant maximum penalty is relevant to the assessment of sentences to be imposed for that offence. That is because courts should regard an increase in the statutory maximum penalty as Parliament requiring them to 'regard offences of that kind more seriously in the future': The State of Western Australia v BLM [2009] WASCA 88; (2009) 256 ALR 129 [35] (Wheeler and Pullin JJA with whose judgment Owen JA agreed).
I turn to the personal circumstances of the appellant. Counsel for the appellant laid particular emphasis on the lack of a relevant criminal record and the fact the appellant, in addition to expressing remorse through his plea of guilty and otherwise, had assumed a financial burden in respect of the incident. However, I consider that, as the learned magistrate noted, it is not uncommon for an offender to have no prior record or to be young and a person of good character. A number of the authorities involved pleas of guilty, which the learned magistrate clearly took into account as indicating remorse. It is true the learned magistrate did not refer to the assumption of a financial burden in respect of the incident, which appears to have no counterpart in any of the authorities I have referred to. I accept this is a significant point of distinction for the purposes of assessment of the sentence for the grievous bodily harm offence.
However, on balance, in view of the recent increase in the maximum penalty for prosecutions on indictment (effectively to 7 years) considered with the matters of the nature of the driving as the learned magistrate described it and the nature and consequences of the grievous bodily harm involved in the incident, it is not apparent that the circumstances of the offending, considered with all of the personal circumstances of the appellant including his assumption of a financial burden in respect of the incident, were such that an immediate term of imprisonment of 18 months was not a sentence within the range of the sound exercise of sentencing discretion. In arriving at this conclusion I have taken into account the licence disqualification for the offence of 3 years that the learned magistrate also imposed.
I do not find particulars (a) or (b) of ground 1 to be made out. I would not uphold the ground.
This conclusion strictly makes it unnecessary for me to examine the other individual sentences of imprisonment.
However, I should add that, on the maximum penalty for the failure to stop offence, the circumstances of the offending as I have described them and the personal circumstances of the appellant, it appears that the sentence of 12 months' immediate imprisonment for that offence has not been shown to be manifestly excessive. For this purpose I adopt the approach to sentencing for conduct (here, dangerous driving) involved in multiple offences (here, the grievous bodily harm offence, the bodily harm offence and the failure to stop offence) referred to in Eves [29] (McLure JA). I have allowed for the uncertain, dazed and confused condition of the appellant and the licence disqualification he also received for the offence. In my view, the required showing has not been made, given the maximum penalty of imprisonment for the failure to stop offence, which for the purposes of the sentencing here, given the way the appellant was charged, was accepted to be 10 years (see the Road Traffic Act s 54(3)(c)).
As to the bodily harm offence, the question is a more difficult one. The maximum penalty of imprisonment for the offence for the appellant, given his criminal record, was 9 months (Road Traffic Act s 59A(3)(a)). Given his plea of guilty and other personal circumstances, it seems to me that the sentence of 6 months' imprisonment for the bodily harm offence in this case has been shown to be manifestly excessive.
I should also add that it seems even if the sentence of imprisonment for the grievous bodily harm offence was manifestly excessive, the respondent has shown that the application of the proviso in the Criminal Appeals Act s 14(2) should produce the result that the present appeal must be dismissed. Applying either of the approaches to the aggregation of sentences for a case such as this one, referred to in Eves [28] and [29] (McLure JA) and illustrated by the result in that appeal, it seems to me that, to reflect the totality of the criminality in this case properly, the appropriate sentence of imprisonment for the bodily harm offence should be made partially cumulative on the appropriate sentence for the grievous bodily harm offence. The sentence of imprisonment for the failure to stop offence should be made partially or wholly cumulative on the other two sentences. On that basis I am satisfied that 'the error or errors made by a court at first instance would not have led to any reduction in the sentence that was imposed by that court' (Joyce [34]), understanding that 'the sentence' means for this case the total effective sentence of imprisonment as well as the disqualification periods aggregated as the learned magistrate aggregated them, and after allowing for the fine for the blood alcohol offence.

Conclusion and orders

I have not upheld any of the grounds of appeal, and would in any event have applied the proviso in this case. I dismiss the appeal.
I will hear from the parties as to the orders I should make.