Blum v Director of Public Prosecutions for Western Australia [No 2]
[2023] WASCA 123
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: BLUM -v- DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA [No 2] [2023] WASCA 123
CORAM: BUSS P
HALL JA
VANDONGEN JA
HEARD: 22 JUNE 2023
DELIVERED : 26 JUNE 2023
PUBLISHED : 23 AUGUST 2023
FILE NO/S: CACR 1 of 2023
BETWEEN: STEVEN JAMES BLUM
Appellant
AND
DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram: LUNDBERG J
File Number : SJA 1065 of 2022
Catchwords:
Criminal law - Appeal against conviction and sentence - Appellant convicted in Magistrates Court of unlawfully doing an act as a result of which the life, health or safety of a person was endangered, reckless driving and failing to stop - Whether verdicts unreasonable or unsupported by evidence - Whether magistrate erred by using lies told by appellant as evidence of guilt - Whether there was a denial of procedural fairness - Whether sentence of 15 months' immediate imprisonment for s 304(1)(b) offence manifestly excessive - Whether driver's licence disqualification was double punishment and contrary to s 11 of Sentencing Act 1995 (WA)
Legislation:
Criminal Code (WA), s 304(1)
Road Traffic Act 1974 (WA), s 60, s 60A, s 60B, s 106A
Sentencing Act 1995 (WA), s 11
Result:
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | In person |
| Respondent | : | Mr R P Arndt |
Solicitors:
| Appellant | : | In person |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Barnes v Cooper [2011] WASC 5
Blum v Director of Public Prosecutions for Western Australia [2022] WASC 464
Dansie v The Queen [2022] HCA 25; (2022) 96 ALJR 728
Davis v The Queen (1990) 5 WAR 269
Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193
Evans v The State of Western Australia [2019] WASCA 73
Filippou v The Queen [2015] HCA 29; (2015) 256 CLR 47
Forrest v The State of Western Australia [2019] WASCA 172
Kabambi v The State of Western Australia [2019] WASCA 44
Narrier v The State of Western Australia [2011] WASCA 193
Schamotta v The Queen [2002] WASCA 262
The State of Western Australia v Maee [2018] WASCA 53
The State of Western Australia v PJW [2015] WASCA 113
The State of Western Australia v Popal [2020] WASCA 200
The State of Western Australia v Wallam [2008] WASCA 117
Webb v Tang [2023] WASCA 119
Wells v The State of Western Australia [2017] WASCA 27
Zoneff v The Queen [2000] HCA 28; (2000) 200 CLR 234
REASONS OF THE COURT:
The appellant was convicted after a trial in the Magistrates Court of one count of unlawfully doing an act as a result of which the life, health or safety of a person was endangered, contrary to s 304(1)(b) of the Criminal Code (WA), one count of reckless driving, contrary to s 60(1A)(b) of the Road Traffic Act 1974 (WA), and one count of failing to stop after being involved in an incident where property was damaged, contrary to s 55(1) of the Road Traffic Act. He was acquitted of a fourth charge of failing to report an accident to the police, contrary to s 56(4) of the Road Traffic Act.
The appellant was sentenced to 15 months' immediate imprisonment for the first offence and fined $750 for the failing to stop offence. No penalty was imposed for the reckless driving offence, other than ordering that the appellant be disqualified from holding or obtaining a driver's licence for six months.
The appellant appealed against his conviction and sentence to a single judge of the General Division. On 22 December 2022 Lundberg J refused leave to appeal and dismissed the appeals.
The appellant sought leave to appeal against the decision of Lundberg J. We heard that appeal on 22 June 2023. On 26 June 2023 we made orders refusing leave to appeal, dismissing the appeal and dismissing an application by the appellant for bail. We said that reasons for making those orders would be given in due course. These are our reasons.
Prosecution case
The prosecution case was that at approximately 2.00 am on Friday, 11 June 2021 the appellant was driving his Ford Falcon vehicle in a westerly direction on Robertson Drive, Bunbury. At that time Mr Orlando Ata‑Ambo was driving his white Toyota Corolla on the same road and in the same direction. It was alleged that the appellant drove up behind and tailgated Mr Ata‑Ambo's vehicle, flashed his lights on high beam and used the car horn to intimidate Mr Ata‑Ambo. He then rammed his vehicle into the rear of Mr Ata‑Ambo's vehicle.[1]
[1] ts 15 - 16 (15 March 2022).
Mr Ata‑Ambo was able to negotiate a left‑hand turn into Bussell Highway. It was alleged that the appellant followed and again rammed Mr Ata‑Ambo's vehicle from behind. The second impact pushed Mr Ata‑Ambo's vehicle for approximately 30 m along Bussell Highway, forcing it off the road and onto a gravel verge, where it collided with a street sign.[2]
[2] ts 16 (15 March 2022).
Mr Ata‑Ambo's vehicle sustained damage to the front and rear bumpers and an oil leak. He was, however, able to drive from the scene and drove to his brother's house, from where he called police.[3]
[3] ts 16, 26 (15 March 2022).
It was alleged that the appellant drove his vehicle from the road, near the location of the second impact, removed personal property from the vehicle, including the car key, and walked from the scene. Sometime later police attended, located the appellant's vehicle and seized and impounded it. The vehicle was later towed from the scene.[4]
[4] ts 16 (15 March 2022).
The appellant was identified as the registered owner of the abandoned vehicle. He was located and interviewed by police on 16 June 2021. When interviewed he admitted that he had driven the vehicle to a place near to where it was found but denied any involvement in the incident.[5]
[5] ts 15 - 17 (15 March 2022).
Defence case
At trial, the appellant's defence was that an acquaintance, now deceased, had borrowed his vehicle and had been driving it at the relevant time. The appellant claimed that he was not present or in any way involved in the incident. He said that his admission to the police that he was driving the vehicle near to the location where it was found was false and that he had only made that statement because he was told to do so by his acquaintance.
Grounds of appeal
The appellant represented himself at the trial, on the appeal to the General Division and on this appeal. The grounds of appeal are lengthy but, in essence, raise the following issues:
1.Whether the appellant's conviction was unreasonable or unsupported by the evidence (grounds 1, 7 and 8).
2.Whether the magistrate erred by using the evidence of the police interview as consciousness of guilt lies, rather than as evidence that was only relevant to the credibility of the appellant (grounds 4 and 6).
3.Whether there was a significant denial of procedural fairness in the manner in which the magistrate dealt with a no case to answer submission and in her questioning of witnesses, including the appellant (ground 5).
4.Whether the sentence of 15 months' imprisonment for the offence of unlawfully doing an act as a result of which the life, health or safety of a person was endangered was manifestly excessive (ground 2).
5.Whether the magistrate erred in law in imposing the six‑month driver's licence disqualification for the reckless driving offence, in that such disqualification was a double punishment and contrary to s 11 of the Sentencing Act 1995 (WA) (ground 3).
In respect of each of those issues, the appellant submits that Lundberg J erred by refusing leave to appeal and failing to allow the appeals.
It is convenient to firstly summarise the evidence at the trial in the Magistrates Court.
The prosecution evidence
Orlando Ata-Ambo
Mr Ata-Ambo said that on the evening of Thursday, 10 June 2021 he visited a friend in Eaton. He arrived at the friend's house at about 11.00 pm and stayed until about 1.00 am on the morning of Friday, 11 June 2021. He left to drive home in his Toyota Corolla.[6]
[6] ts 21 (15 March 2022).
As Mr Ata‑Ambo was driving towards the traffic lights on Robertson Drive, a vehicle drew up alongside him. The vehicle then fell back and was driving behind him. The vehicle 'put his headlight on [Mr Ata-Ambo]' which caused him to think that something must be wrong. However, he continued to drive and then heard the engine of the vehicle behind revving. He was then rammed by that vehicle. At the time he was in the vicinity of the TAFE college.[7]
[7] ts 22 (15 March 2022).
Mr Ata‑Ambo said that he slammed on his brakes and that the vehicle behind was 'continuously' hitting him. By this it seems that he meant that the vehicle behind maintained contact for some distance. He was pushed towards a roundabout, and it then felt 'like the car gave a little space'.[8]
[8] ts 22 - 23 (15 March 2022).
Mr Ata‑Ambo took the opportunity to turn his vehicle towards Bussell Highway. The other vehicle came up behind him again, and again rammed into his vehicle at the back. His vehicle was forced off the road onto the gravel. He hit a sign and his vehicle stalled. He could see that the other vehicle was not moving and was afraid but decided to keep on driving. He drove to his brother's house.[9]
[9] ts 23 - 24 (15 March 2022).
Mr Ata‑Ambo said that throughout the incident he was frightened. Due to the fact that he was frightened and that it was night-time, he was unable to give a description of the vehicle or the driver. He said that the other vehicle appeared to have stopped close to the turn off to the hospital on Bussell Highway.[10]
[10] ts 24 - 25 (15 March 2022).
Mr Ata‑Ambo said that as soon as he arrived at his brother's house, he called police. He did not inspect his vehicle for damage until the following morning. The police attended and took photographs of his vehicle, which showed damage to the front and rear. There was a missing rear bumper, which was found by police at the scene of the incident. After the incident the vehicle stopped working because 'the engine was totally wrecked'. He was unable to take it to a mechanic as it was undriveable. He ended up selling the vehicle to an auto wrecker.[11]
[11] ts 26 - 27, 32 (15 March 2022).
In cross‑examination Mr Ata‑Ambo confirmed that he could not provide any details of the other vehicle, including the make, model or colour of it. He was not, however, challenged as to the occurrence of the incident, or that it occurred as he described.[12]
Cameron Stuart Hobson
[12] ts 33 - 34 (15 March 2022).
Senior Constable Hobson was on nightshift on the evening of 10 ‑ 11 June 2021. After receiving a report of an abandoned vehicle on Bussell Highway he attended at the scene, together with Constable Sharna Beardman, at around 2.12 am. At the scene they located a white Ford Falcon sedan, registration GNG 3469. The vehicle was parked on the verge of Bussell Highway, about 400 m south of the intersection with Robertson Drive. The location was just past the southern entrance to the health campus.[13]
[13] ts 35 - 36 (15 March 2022).
Senior Constable Hobson observed damage to the front of the Ford vehicle. This included damage to the front bumper, rear front quarter panel and bonnet. About 5 m ‑ 7 m away from the vehicle the police located a white rear bumper from another vehicle. There was also a large oil stain on the verge that trailed away from the scene in a southerly direction on Bussell Highway.[14]
[14] ts 37 - 40 (15 March 2022).
The police followed the oil trail and it led to an address in the suburb of Underwood. At that address they found a Toyota Corolla parked at some units. They were approached by the driver of that vehicle, who identified himself as Mr Ata‑Ambo. They also took photographs of the Toyota, showing that it was missing the rear bumper.[15]
[15] ts 39 - 40 (15 March 2022).
On 16 June 2021 Senior Constable Hobson arrested the appellant, who was later interviewed under caution. A recording of the interview was tendered in evidence.[16]
[16] ts 48 (15 March 2022).
During the police interview the appellant admitted driving the Ford vehicle proximate to the time of the offences and admitted that he had parked it near to the location where it was found by police. However, he denied driving it at the time of the incident. He said that he had stopped to come to the aid of a person while driving along Bussell Highway, and had got out of his car, leaving it unattended. He said that his car was stolen by an unknown person, who must have used it in the incident in question.[17]
[17] Appellant's recorded police interview, 16 June 2021.
There was some cross‑examination of Senior Constable Hobson regarding the circumstances in which he had taken a witness statement from Mr Ata‑Ambo. The magistrate noted that no questions in this regard had been put to Mr Ata‑Ambo and that he was available to be recalled for this purpose. The appellant stated that he did not wish to ask any further questions of Mr Ata‑Ambo and did not pursue the matter with Senior Constable Hobson.[18]
Stephen David Dixon
[18] ts 49 - 58 (15 March 2022).
Sergeant Stephen Dixon gave evidence that he also attended at the abandoned vehicle on Bussell Highway on the morning of 11 June 2021. Sergeant Dixon arrived with Senior Constable Mitchell at about 3.15 am. He observed that the vehicle was unoccupied, the driver's side window was open and there were no keys inside. He observed some damage to the front left corner of the vehicle.[19]
[19] ts 60 - 61 (15 March 2022).
Sergeant Dixon also observed skid marks which extended over about 30 m, coming off Bussell Highway and onto the gravel. At the point where the skid marks stopped, he observed a pool of oil on the road. Nearby were the remnants of a reduce speed sign and an 80 km per hour sign. Near to the point where the skid marks stopped, he noticed a rear bumper, a front grille and a wingmirror from another vehicle. The items appeared to have come from a Toyota vehicle.[20]
[20] ts 61 - 62 (15 March 2022).
Sergeant Dixon noticed that there was a trail of oil from the point where the skid marks stopped. It appeared that the vehicle that caused the skid marks had stopped for a short period of time and then driven off, because the oil trail was heavy at first and then went back out onto the road and headed in a southerly direction along Bussell Highway.[21]
[21] ts 62 (15 March 2022).
While still at the scene Sergeant Dixon received some information from Senior Constable Hobson. As a result of that information, he instructed Senior Constable Mitchell to impound the vehicle, after obtaining authorisation from an inspector. According to police records the registered owner of the Ford Falcon vehicle found abandoned adjacent to Bussell Highway was the appellant.[22]
[22] ts 64 - 65 (15 March 2022).
In cross‑examination Sergeant Dixon said that the vehicle was impounded on the basis that he was satisfied that it had been involved in an offence of reckless driving. He said he did not authorise any forensic examination of the vehicle and had no involvement in any such examination.[23]
[23] ts 69 (15 March 2022).
It was put to Sergeant Dixon that it was possible that a drunk driver had driven through, 'collected the sign' and then driven around and caused damage to the front of the Ford vehicle. Sergeant Dixon said that from his observations of the scene, including the skid marks and the sign that had been run over and the oil trail leaving the scene, he was not of the view that some other vehicle collided with the front of the white Ford Falcon whilst it was parked at the scene.[24]
Korric Neil Worrell
[24] ts 70 (15 March 2022).
First Class Constable Worrell was on duty on the morning of 11 June 2021. He attended at a high school near the hospital in response to a report that a glass window had been damaged during the night. He attended at the scene with First Class Constable Forster to complete an assessment. They were shown the broken window by staff, collected some photographs and then left the scene.[25]
[25] ts 72 (15 March 2022).
Later that day, at about 11.00 am, the officers returned to the school on receiving a report that staff had seen a male person on the school grounds, acting erratically. On arrival, the officers observed the appellant. When they spoke to him, he was vague in his answers and appeared to be somewhat disoriented. The appellant told the police that he was searching for his vehicle, which he said was parked within the school grounds. He had his car keys with him. When asked why he could not recall where exactly he had parked the vehicle, he gave vague answers.[26]
[26] ts 72 - 73 (15 March 2022).
The police drove around the school and checked every car park and, after some time searching, came to the conclusion that the appellant's vehicle was not at the school. They told the appellant to leave the area and suggested to him that perhaps he had parked his vehicle at the hospital car park, which was about 500 m away.[27]
Martin Mitchell
[27] ts 73 (15 March 2022).
Senior Constable Mitchell gave evidence that he was on duty on 11 June 2021 and attended the scene with Sergeant Dixon. He also observed the white Ford Falcon sedan about 50 m south of the entrance to the Bunbury Hospital. He saw the skid marks in the gravel close to this vehicle. He noticed parts of a second vehicle on the ground nearby, including a white rear bumper, white wingmirror and the front end of a grille that had a Toyota badge on it. He observed a temporary road sign that had been overturned, and what looked like a pool of oil.[28]
[28] ts 26 (28 March 2022).
In cross‑examination the appellant attempted to question Senior Constable Mitchell regarding apparent inconsistencies in police reports as to whether there had been one or two collisions with Mr Ata‑Ambo's vehicle. The magistrate ruled this line of questioning irrelevant on the basis that Mr Ata‑Ambo had not been challenged regarding there being two collisions, and any error in that regard in police records was immaterial.[29]
[29] ts 32 - 37 (28 March 2022).
Defence evidence
The appellant
The appellant elected to give evidence. He said that as at 11 June 2021 he had a current driver's licence. He also said that he suffers from chronic paranoid schizophrenia, for which he takes medication. He said that he had trouble remembering exactly what had occurred on the night of 10 ‑ 11 June 2021.[30]
[30] ts 38 (28 March 2022).
The appellant said that he was at his parents' house on the evening of 10 June 2021 and left there at 9.30 pm to drive to Busselton. He said he went to Mr Joel Crawford's house at 5B Moylan Way, Busselton. At the time he did not have much fuel in his vehicle. He said that he arrived at about 10.00 pm and whilst there, a couple of other men came around. He did not know who they were. A young girl, who he referred to as Ms McDonald, also arrived whilst he was talking in the lounge room. He said that one of the men asked if they could get a lift from him to an ATM. He said that he was sorry, but he could not do so as he did not have any fuel.[31]
[31] ts 38 - 40 (28 March 2022).
The appellant said that Mr Crawford then asked to borrow his vehicle because he needed to go and meet someone in Bunbury. He said he agreed to allow Mr Crawford to borrow the vehicle and saw him drive away. Sometime later Mr Crawford telephoned him and said that the vehicle had run out of fuel at the junction of Robertson Drive and Bussell Highway, near the hospital.[32]
[32] ts 40 (28 March 2022).
The appellant said that a short time later Mr Crawford arrived back at the house with another man in a small vehicle which he thought was a red Hyundai. He asked the man who was driving that vehicle to give him a lift back to collect his vehicle, which he did. He said that he did not know the name of that man, but believed he was an acquaintance of Mr Crawford. The man dropped him at the hospital, and he got out and walked through the car park to look for his vehicle. He said that Mr Crawford did not provide him with an exact location but just said that it was at the hospital, on the side of the road.[33]
[33] ts 40 - 41 (28 March 2022).
The appellant said that he called police and was told that they needed to speak to him in relation to his vehicle. However, he was told that it was not so important that he needed to come into a police station at that time and that it could wait until the following Monday morning. He said that he was told that his vehicle was probably at the towing yard. He then rang a towing yard and was told that his vehicle was not there. He said that he panicked and thought that his vehicle had been stolen. He then rang police again and was told the name of the company that had towed his vehicle.[34]
[34] ts 41 - 42 (28 March 2022).
The appellant said that when Mr Crawford came back in the red Hyundai he said that he did not have a driver's licence and that when the appellant went to pick up his vehicle, if there were any 'hassles' the appellant should 'just say [he was] driving, [he'd] left [his] house, come into Bunbury, gone around the roundabout, saw a vehicle a four‑wheel drive'. The appellant said that this was what he said in the record of interview. He told the police in the interview what he had been told to say by Mr Crawford in order to get Mr Crawford out of trouble. He said that he did not appreciate that he would be charged with these offences when he was interviewed.[35]
[35] ts 42 - 43 (28 March 2022).
The appellant said that Mr Crawford has since died in a subsequent car accident. He had made enquiries to attempt to identify the other people who had been at Mr Crawford's house that night. He had identified Ms McDonald and asked her to attend court, but she had been unable to do so. He accepted that he had not issued a witness summons to her.[36]
[36] ts 39 - 43 (28 March 2022).
In cross‑examination the appellant was asked how his mental health was around the time of the incident. He said at the time he was an outpatient of the Bunbury Community Mental Health Service and was receiving medication. He said his mental health fluctuated and he had a relapse after he was arrested and was remanded in custody. At that time he was not medicated and it took several weeks to see a psychiatrist to obtain a prescription.[37]
[37] ts 44 (28 March 2022).
The appellant said that at around the time of the alleged incident he was medicated but would have good days and bad days. He was asked by the magistrate whether there was a possibility that he could have done the things alleged and have no recollection of them due to his mental health. The appellant accepted that that was a possibility but said that, in his view, it did not fit with his recollection of going to Busselton to see Mr Crawford and being stuck there.[38]
[38] ts 45 (28 March 2022).
It was put to the appellant that his evidence that he had left his parents' home at about 9.30 pm was inconsistent with what he had said in the police interview, which was that he had left his home at 1.30 am. He said that this was because Mr Crawford had told him to say that to the police in order to cover for him because Mr Crawford did not have a driver's licence. He said that Mr Crawford told him to 'cover his arse' but that Mr Crawford had left out the fact that he had hit another vehicle.[39]
[39] ts 46 - 47 (28 March 2022).
When asked why he had loaned his vehicle to Mr Crawford, the appellant said that Mr Crawford said that he needed to go and pick up something in Bunbury and that he would give the appellant some money when he returned. When it was put to him that he had refused another person a lift on the basis that he did not have much fuel in his vehicle, the appellant said that he agreed to allow Mr Crawford to borrow the vehicle on condition that he paid him some money and that the vehicle would be returned with fuel in it. He said that Mr Crawford agreed to do that.[40]
[40] ts 49 - 52 (28 March 2022).
In cross‑examination the appellant said that after Mr Crawford left, he received a telephone call from him in which Mr Crawford said that he had had a 'fender bender' and that he had no driver's licence. The appellant said he felt obliged to lie for Mr Crawford because he feared retribution. He accepted that in his evidence-in-chief he had not mentioned Mr Crawford referring to a 'fender bender'. He said that he could not now recall what Mr Crawford said but knew that there was something wrong.[41]
[41] ts 53 - 55 (28 March 2022).
The appellant said that when he returned to the scene with the man in the red Hyundai, he could not find his vehicle. When asked whether he asked the man in the red Hyundai where he had picked Mr Crawford up from, the appellant said that he did not because he did not know the man. He said he did not ask the man in the red Hyundai any questions about the location of his vehicle.[42]
[42] ts 57 - 58, 69 - 70 (28 March 2022).
The appellant was asked how it was that having been dropped at the scene by the man in the red Hyundai, he was seen by police officers many hours later looking for the vehicle. It was put to him that on this basis, he had spent some 11 hours looking for his vehicle. In response the appellant said that during this time, he rang police twice and also rang a towing company. However, he accepted that on his version of events he was at the scene from sometime around 1.30 am until 11.00 am, when seen by the police. The appellant accepted that when his vehicle was taken from the towing yard, it had a damaged front left headlight, side fender and bonnet.[43]
[43] ts 59 - 61 (28 March 2022).
The appellant was asked whether he had loaned his vehicle to people on other occasions. He said that he had and that this had caused him difficulties in the past. Given this, he was asked why he had loaned his vehicle to Mr Crawford on this occasion. He said it was because he had not loaned his vehicle to Mr Crawford before and did not suspect that anything illegal would occur. He said that he had loaned his vehicle to others on many other occasions when nothing untoward had happened.[44]
[44] ts 62 - 63 (28 March 2022).
No case submission
Prior to the conclusion of the prosecution case the appellant raised the possibility that he would make a no case submission. The following exchange with the Magistrate occurred:[45]
[45] ts 8 (28 March 2022); BGAB 205.
[APPELLANT]: Your Honour, can I just say one more thing? What I had anticipated was after the close of the prosecution case I would submit a no case to answer.
HER HONOUR: That will not be successful, Mr Blum. I'm just letting you know now. Even on the basis of the evidence that has been led, thus far - - -
[APPELLANT]: And, I think - your Honour, there is some case law. I don't have it with me but - - -
HER HONOUR: I'm very familiar with the law in respect of no case submissions, and the prosecution case is to be put at its highest. All inferences that are available to be drawn should be drawn in favour of the prosecution case. In other words, where I'm looking at evidence - and it could go either way - I'm to draw all of those inferences, all of those conclusions, in favour of - - -
[APPELLANT]: Evidence. Yes.
HER HONOUR: - - - the prosecution and if I do that, Mr Blum, I have a car registered to you involved in an incident, as described by the complainant, in circumstances where you admit to being in the vehicle at about that time, in about that area, in fact, that exact area at one point, and that you had the keys.
[APPELLANT]: Now, that is the inference - - -
HER HONOUR: So Mr Blum - - -
[APPELLANT]: Yes.
HER HONOUR: - - - that is what is currently available on the prosecution case. So if I draw all of the inferences in favour of the prosecution case on the basis of those matters I've just outlined, there is a case, capable - - -
[APPELLANT]: I do have - I do have - - -
HER HONOUR: - - - of sustaining a verdict of guilt beyond reasonable doubt.
The appellant did not make a no case submission at the end of the prosecution case, however he did raise the issue again at the conclusion of his own evidence. The following exchange with the Magistrate occurred:[46]
[APPELLANT]: I would wish to submit a no case to answer please.
HER HONOUR: Well, I've already explained to you, Mr Blum, and while, of course, you're entitled to make that application, the application is made, the application to dismiss the case on the basis that there is no case to answer is refused. I am satisfied that there is a case on what the prosecution has outlined and on the evidence led in both the prosecution case and in the defence case. If I are [sic] draw - if I draw all inferences in favour of the prosecution case in that way, then I am satisfied that there is a prima facie case with reasonable prospects of conviction upon which you could be found guilty beyond reasonable doubt. Put in very simple terms, accepting [Mr Ata‑Ambo's] evidence as to the incident that occurred, that that involved a vehicle which was left in a location consistent with the location where your vehicle was subsequently found.
The fact that that is your vehicle registered to you, that you had a set of keys, what you say is the only set of keys and that even on this new version of events that you've provided in court you have given evidence as to driving that vehicle at about that time in about that location and if I draw all of those inferences, as I say, in favour of the prosecution case, it establishes a case to answer.
[APPELLANT]: Your Honour - - -
HER HONOUR: So that application is dismissed.
[46] ts 73 (28 March 2022); BGAB 270.
Magistrate's reasons
After hearing closing submissions from the prosecutor and the appellant, the magistrate delivered her reasons. The reasons were lengthy and detailed. After setting out the relevant legal principles her Honour identified the critical issue as being the identity of the driver of the vehicle that hit Mr Ata‑Ambo's car. Her Honour then summarised the prosecution evidence.
As regards the appellant's police interview, her Honour said that she found the version of events recounted in that interview to be entirely implausible. She noted that the appellant had told police that he had pulled over to assist a person who needed help. She noted that the place that he said he stopped his vehicle was at approximately the same spot where that vehicle was later found after being involved in the incident with Mr Ata‑Ambo. She noted that the appellant said that he got out of his vehicle and took his keys, and that there was nothing to indicate that the vehicle had been started in a way that did not involve using the keys or that the ignition had been tampered with. According to the appellant's account given to police, he left the vehicle for a short period and when he came back, someone had taken it. Her Honour noted the unlikelihood that whoever had taken the vehicle had been involved in an incident at the scene and then returned the vehicle to the precise location where the appellant had left it. Her Honour then said:[47]
It was an entirely implausible account that could easily be rejected by a trier of fact and, indeed; I would have rejected in its entirety. It seems to me that Mr Blum was well-aware of that and as a result became conscious of the fact that he would need to provide an alternative account and this is what Mr Blum has done in giving his evidence today. Mr Blum became aware of this incident soon after it occurred. He had contact with police. He did -and I accept - genuinely go back to the area looking for his vehicle and it was no 1onger there. It would have been clear to him that it had been removed from the scene. By the time that Mr Blum was interviewed five days later he had had an opportunity to come up with an account. As I say, the account provided in that interview was so implausible that it can be readily rejected.
[47] ts 89 - 90 (28 March 2022); BGAB 286 - 287.
Her Honour then turned to the evidence that the appellant had given at the trial. She noted that there were inconsistencies in the evidence. In particular, the appellant made no reference in his evidence‑in‑chief to there being a discussion with Mr Crawford about receiving payment for the use of his vehicle or that Mr Crawford was told that he needed to put fuel in it. Her Honour said that it seemed that these details were added to deal with the implausibility that he would have loaned his vehicle to Mr Crawford in circumstances where it was short of fuel. Her Honour also noted inconsistencies regarding whether Mr Crawford had told him that he had been involved in an accident whilst driving the appellant's vehicle and as to why he could not locate the vehicle when he was taken to the scene. Her Honour noted that the appellant said he had given a false story to the police in order to protect Mr Crawford. Her Honour said that by the time that the appellant was interviewed, he must have known that something serious had happened and that his vehicle had been towed from the scene. Her Honour said that it was strange that the appellant would provide a false account to protect Mr Crawford, knowing that he was being interviewed about a serious matter. Her Honour noted that the appellant said that he did so because he was afraid of retribution, but the fact that Mr Crawford had since died made him a convenient scapegoat upon whom to attribute blame for the incident.[48]
[48] ts 90 - 93 (28 March 2022); BGAB 287 - 290.
Having regard to the factors referred to, her Honour concluded in the following terms:[49]
When looking at Mr Blum's account of what occurred on that night in his evidence both in this - both in court and looking at how it has changed from his video record of interview, I find it to be an entirely implausible account which I can reject in its entirety. I did not find Mr Blum to be a credible witness in any way in terms of what he was saying occurred, in terms of how he presented it and noting, as I've said, the significant internal inconsistencies. His account does not raise a reasonable doubt because, as I say, I reject it in its entirety and so I put it to one side and I return to the evidence on the prosecution case.
[49] ts 94 - 95 (28 March 2022); BGAB 291 - 292.
Her Honour then said that, after putting aside the appellant's evidence, she was required to consider whether the remaining evidence satisfied her beyond reasonable doubt of each of the elements of each of the charges. She noted that it was not in dispute that the appellant's vehicle was found by the side of the road, close to where the incident had occurred. Mr Ata‑Ambo's account of that incident was not challenged. The damage to the appellant's vehicle was consistent with it having been involved in the incident described by Mr Ata‑Ambo. Her Honour then turned to the evidence as to the identity of the driver of the appellant's vehicle at the time of the incident:[50]
In the video record of interview, Mr Blum admitted to driving his car around the time of the offence and in the area, indeed, directly across the road from the incident and, in fact, having parked his car pretty much at the exact location of where it was later found, having been involved in the incident with [Mr Ata‑Ambo].
But, of course, Mr Blum now rejects that version of events found in the video record of interview. I have found that he has done so because he knows that, ultimately, it did him no favours and created more issues than it seeked to solve. He then provided the version of events that was given in evidence today, a version of events I have again dismissed or rejected, but I do note that at its essence it still has Mr Blum admitting that he was in possession of his vehicle and he drove that vehicle that night. There is no evidence of the ignition having been tampered with and rather, the evidence is, on Mr Blum's own account and consistent with what the police have said that he retained possession of the vehicle's keys during the - well, after the incident. They were still in his possession after it had occurred. Of course, he would say that he gave those keys to Mr Crawford.
As I've already noted and for the reasons I've outlined, I reject that explanation. So Mr Blum had the keys and, indeed, he still had them later on that Friday when he spoke with his - with police. So what I am left with is [Mr Ata‑Ambo] providing an account as to an incident of there being a collision or numerous impacts to his vehicle by another vehicle. I accept beyond reasonable doubt that that occurred. I accept beyond reasonable doubt that it was Mr Blum's car that was involved - was the other vehicle involved in that incident and further, for all the reasons that I've outlined, rejecting Mr Blum's account and accepting that the evidence on the prosecution case which in my view leads to an irresistible inference being the only available reasonable inference on the evidence that it was Mr Blum who was driving that car at that time.
It must be said that this is an unusual case. No motive has been proffered for Mr Blum having driven the vehicle in that way and colliding with [Mr Ata‑Ambo] on that night. But indeed it's equally implausible and bizarre, unusual, strange that Mr Crawford would do the same thing. Regardless of the identity of the driver, this incident doesn't make sense on many, many levels, but I do accept on [Mr Ata‑Ambo's] evidence that this is exactly what occurred and that the evidence presented as I've outlined leads to the irresistible inference that Mr Blum was beyond reasonable doubt the driver of that vehicle.
[50] ts 96 - 97 (28 March 2022); BGAB 293 - 294.
Single judge appeal
On the appeal to Lundberg J, a large number of issues were raised, only some of which have been pursued on this appeal.
As to the claim that the verdicts were unreasonable or unsupported by the evidence, his Honour concluded that the evidence was clearly capable of supporting findings that the appellant was the owner of the Ford vehicle, that he had been driving the vehicle in the vicinity on the morning in question, that he parked it in the location it was found by police after the incident and that he was located in the vicinity some hours later in possession of the keys. In addition, photographs of the Ford vehicle did not show any tampering with the ignition mechanism but did show damage consistent with the incident in question. His Honour concluded that there was no doubt that the Ford vehicle had been the vehicle which collided with the Toyota vehicle and that it was objectively unlikely that another person could have assumed control of the Ford vehicle, driven to another location, committed the offences, before leaving the appellant's vehicle in a damaged state at the same location. The only reasonable inference available on the whole of the evidence was that the appellant was driving his Ford vehicle at the time and that he had committed the offences.[51]
[51] Blum v Director of Public Prosecutions for Western Australia [2022] WASC 464 [42] - [43].
As to the claim that the magistrate had erred in not upholding the appellant's no case submission, his Honour concluded that this argument had no merit. His Honour stated that the magistrate correctly approached the issue in accordance with the accepted principle, that is whether the evidence, considered at its strongest from the point of view of the prosecution and on the assumption that all inferences that are reasonably open are drawn, is capable of proving the guilt of the accused.[52]
[52] Blum [68].
As to the claim that the appellant was denied procedural fairness as a consequence of questions asked by the magistrate of witnesses, his Honour concluded that this claim had no merit and he rejected the criticisms of the magistrate raised by the appellant. His Honour concluded that the magistrate intervened on a limited number of occasions during the hearing in order to assist the questioning, to clarify matters with a witness and to ensure the trial proceeded in a fair manner. He said that the approach taken by the magistrate could not be described as excessive or unfair and, indeed, showed a patient approach during the course of the two‑day hearing. He said that there was no departure from the due and orderly processes of the trial such as to amount to a miscarriage of justice.[53]
[53] Blum [71].
As to the claim that the sentence of 15 months' imprisonment was manifestly excessive, his Honour concluded that although such a sentence was a significant one for an offence under s 304(1) of the Criminal Code, he was not satisfied that it could be characterised as manifestly excessive. In that regard, he particularly noted the serious nature of the conduct, the time of night it occurred, the effect on the victim, the need for protection of the community and the need for general deterrence in matters of this nature.[54]
[54] Blum [92].
Appeal against conviction - grounds 1, 7 and 8 - the merits
Ground 1 asserts that the guilty verdicts were unreasonable or unsupported by the evidence. Ground 7 refers to a significant possibility that an innocent person has been convicted. Ground 8 refers to the appellant having lost a chance of acquittal in the Magistrates Court. Ground 7 and 8 are simply different formulations of the claim referred to in ground 1. For that reason, these grounds can be conveniently dealt with together.
The principles applicable to an appeal on the basis of an unreasonable verdict were summarised in Wells v The State of Western Australia.[55] The same approach applies to an appeal from a decision of a magistrate or judge sitting without a jury. See Filippou v The Queen[56] and Webb v Tang.[57] The approach to be taken by an appellate court in considering an appeal on a ground that a verdict is unreasonable or unsupported was recently considered by the High Court in Dansie v The Queen.[58] In Dansie, the court said:[59]
The question for the court in every case will remain whether the court's assessment of the totality of the evidence leaves the court with a reasonable doubt as to guilt which the court cannot assuage by having regard to such advantages as the trial judge can be taken to have had by reason of having seen and heard the evidence at trial.
[55] Wells v The State of Western Australia [2017] WASCA 27 [13].
[56] Filippou v The Queen [2015] HCA 29; (2015) 256 CLR 47 [12].
[57] Webb v Tang [2023] WASCA 119 [129].
[58] Dansie v The Queen [2022] HCA 25; (2022) 96 ALJR 728.
[59] Dansie [16].
The appellant provided three particulars to this ground. The first particular asserts that the magistrate utilised impermissible reasoning in treating answers given by the appellant in his interview as an admission against interest. The appellant submits that, whilst he does not dispute that he lied to the police in the interview, such lies were only relevant to his credibility and could not be used as evidence of his guilt. He submits that the magistrate used the evidence of the interview improperly to establish his guilt in circumstances where that evidence could only be used in assessing his credibility as a witness.
The appellant's argument cannot be accepted. The magistrate only relied on those parts of the interview as evidence of guilt in which the appellant admitted to driving the vehicle at the time and in the vicinity of the incident. The fact that he later resiled from those admissions did not mean that they could not be relied on by the prosecution, or by the magistrate, in determining the question of guilt. Those admissions were not relied upon as being lies but as truthful admissions against interest.
The appellant said in evidence that the version he had given to the police in his interview was untrue and had been given in order to protect Mr Crawford. The magistrate did not rely on this as being an Edwards or consciousness of guilt lie. She did not use any such lie to support her conclusion that the appellant had committed the offences. Rather, she used the implausibility of the claims made to the police and the appellant's subsequent attempt to resile from them as matters that were relevant in considering his credibility as a witness. She concluded that neither the version given to the police nor that given by the appellant in evidence at the trial was truthful (apart from the appellant's admission to the police that he was driving at the relevant time and place). For these reasons, assertions by the appellant that the magistrate misused the evidence and failed to direct herself in accordance with Edwards v The Queen[60] and Zoneff v The Queen[61] are unfounded and must be rejected.
[60] Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193.
[61] Zoneff v The Queen [2000] HCA 28; (2000) 200 CLR 234.
The second particular is somewhat difficult to follow but appears to allege that the magistrate failed to properly consider the appellant's alibi evidence. The first mention of the appellant's intention to give alibi evidence was at the conclusion of the first day of the trial, when he indicated that he would be calling such evidence. Her Honour raised the issue of an alibi notice as required by the Criminal Procedure Act2004 (WA) and the appellant said that he had discussed the alibi with the prosecutor prior to the commencement of the trial.[62] Whilst verbal notice of an alibi does not comply with the requirements of s 62(4)(a) of the Criminal Procedure Act, the prosecutor did not seek an adjournment to investigate and obtain further evidence. The appellant appears to assume that this left his evidence unchallenged.
[62] ts 80 - 84 (15 March 2022).
The only evidence given of an alibi was that of the appellant. During the appellant's evidence, the prosecutor was asked if she intended to call evidence in rebuttal of the alibi. The prosecutor said that the police had confirmed that Mr Crawford was deceased and the prosecutor would not be adducing any evidence of Mr Crawford's location at the time of the offences. The appellant referred to Ms McDonald but, as noted earlier, he had not issued a summons for her to attend court.
The magistrate was not obliged to accept the appellant's evidence as to an alibi. It was plainly open to her Honour to reject the appellant's alibi evidence. Her Honour found that the appellant's evidence was internally inconsistent and implausible. There was no failure on the part of the magistrate to consider the alibi evidence.
The third particular asserts that on the single judge appeal Lundberg J only looked at so much of the evidence as to be satisfied of guilt and not all of the evidence. The appellant refers to the possibility that paint samples could have been taken from the cars and analysed and that the results were not disclosed to him. He asserts that it is possible that a key witness, such as a police forensic officer, was not called. He claims, without any supporting evidence, that paint samples could have supported an inference that a different car was involved in the incident.
The evidence at trial was that no forensic examination of the vehicles had occurred. The appellant's suggestion that testing of paint samples may have revealed that a different vehicle was involved in the incident is entirely speculative. He has not sought to adduce any additional evidence in this regard. There is no conceivable error in the magistrate, or Lundberg J, failing to take into account matters that were not in evidence. Indeed, it would have been an error to do so.
In any event, it was not in dispute at the trial that the appellant's vehicle was involved in the collision with Mr Ata‑Ambo's vehicle. The appellant's position at trial was that his vehicle had been involved but that Mr Crawford was driving. The sole issue was whether the appellant was driving the vehicle at the relevant time.
None of the particulars are capable of raising a reasonable doubt as to the appellant's guilt. Furthermore, in considering the evidence as a whole it was plainly open to the magistrate to conclude that the appellant was the driver of the vehicle at the relevant time and had committed the offences. On our review of the trial record it is apparent that:
(a)The appellant was the owner of the Ford vehicle.
(b)The appellant had been driving the vehicle in the vicinity of the incident involving the collision with Mr Ata‑Ambo's vehicle on the morning in question.
(c)The appellant parked his Ford vehicle at the place where the vehicle was found by police after the incident.
(d)Some hours after the incident the appellant was in the vicinity of the place where the incident occurred and in possession of the keys to his Ford vehicle.
(e)The ignition mechanism of the Ford vehicle had not been tampered with.
(f)The Ford vehicle had been damaged in a manner consistent with Mr Ata‑Ambo's account of the incident.
(g)The Ford vehicle was the vehicle which had collided with Mr Ata‑Ambo's vehicle.
(h)It was objectively implausible that a person other than the appellant had been in control of the Ford vehicle, had driven the Ford vehicle to another location, had followed Mr Ata‑Ambo's vehicle and committed the offences and had then abandoned the Ford vehicle in a damaged state at the location where the incident occurred.
We are satisfied that a tribunal of fact, acting reasonably, was not precluded by the state of the evidence at trial from convicting the appellant. The trial record does not require the conclusion that the Magistrate must necessarily have had a doubt about the appellant's guilt. The Magistrate was entitled to reject the appellant's version of events. The verdicts of guilty were supported by evidence that the Magistrate was entitled to accept and by inferences that the magistrate was entitled to draw. The nature and quality of the evidence at the trial was sufficient to remove any doubt that the appellant was guilty. After paying full regard to the consideration that the magistrate was the tribunal of fact entrusted with the responsibility of determining guilt or innocence, and after paying full regard to the consideration that the Magistrate had the benefit of having seen and heard the witnesses, we do not have a reasonable doubt as to the appellant's guilt or as to the correctness of his convictions. It would not be dangerous to permit the verdicts to stand.
It is not reasonably arguable that the verdicts were unreasonable or unsupported by the evidence. For these reasons, leave in respect of grounds 1, 7 and 8 was refused.
Appeal against conviction - ground 4 - the merits
The appellant contends that Lundberg J erred in law by relying on the appellant's two different accounts as constituting an admission against interest. The argument, in essence, is that the appellant's police interview was only admissible in relation to his credit. This argument has already been dealt with in respect of particular 1 of ground 1.
The prosecutor relied on the appellant's police interview as containing an admission that he was driving his vehicle at about the time of the offence and that he left it at the location where it was later found. The appellant's evidence that this admission was a lie did not affect its admissibility or the manner in which the magistrate could use the admission. It was open to the magistrate to reject the appellant's evidence as to the reasons he gave for lying to the police and conclude that the statement in the interview, to the extent it constituted an admission against interest, was true. This was not a case, as the appellant contends, of the magistrate putting the case in a way that was not advanced by the prosecution.
For these reasons, leave in respect of ground 4 was refused.
Appeal against conviction - ground 5 - the merits
The appellant asserts that there was a denial of procedural fairness in the manner that the magistrate dealt with the appellant's submission that there was no case to answer and in her questioning of witnesses, particularly the appellant. He contends that the magistrate's questioning of him amounted to cross‑examination and was, thus, unfair.
There is no appeal from the decision to refuse a no case submission.[63] The mere failure to uphold such a submission cannot occasion a miscarriage of justice. This ground thus depends on a denial of procedural fairness.
[63] See Davis v The Queen (1990) 5 WAR 269, 271.
The appellant flagged the possibility of a no case submission prior to the conclusion of the prosecution case. Her Honour told the appellant, in very clear terms, that such a submission would enjoy no prospect of success. In doing so, she explained that, on the evidence that had been adduced to that point, and in applying the relevant legal test, there was plainly a case to answer.
Though the magistrate gave the appellant's submissions short shrift, there was no prospect that a no case submission could have succeeded in respect of the charges of unlawfully doing an act as a result of which the life, health or safety of a person was endangered, reckless driving and failing to stop after being involved in an incident where property was damaged. Thus, even if the magistrate 'peremptorily dismissed' the appellant's submissions (as he claims), there was no miscarriage of justice.
The only issue on which there was a lack of evidence was as to the value of the damage to the two vehicles. That was relevant to the charge of failing to report a motor vehicle accident as the reporting obligation only arises where the value of the total damage exceeds $3,000. Whilst it is arguable that a no case submission on the charge of failing to report may have succeeded, no miscarriage of justice was occasioned as the appellant was acquitted of that charge.
In any event, the appellant did not make a no case submission until after he had given evidence and closed the defence case. At that point a no case submission served no utility. It could not have relieved the appellant from giving or calling evidence to counter the prosecution case, as that had already occurred. The appellant could derive no benefit from the magistrate applying the relatively lower bar applicable to a no case submission in circumstances where she was required to consider whether the charges had been proven beyond reasonable doubt. The appellant was not denied the opportunity of making submissions as to whether the prosecution case was proven beyond reasonable doubt, which he did in his closing address.
As to the claim that the magistrate improperly or unfairly examined witnesses and cross‑examined him, the appellant did not identify any specific questions asked by the magistrate that are said to be unfair. The appellant's primary contention appears to be that the magistrate was not impartial in her questioning of him when he was giving evidence.
The transcript shows that apart from her Honour stopping the appellant giving hearsay evidence regarding what Ms McDonald may have said, he was permitted to give his account of events as he chose in his evidence‑in‑chief.[64] Her Honour did seek clarification of some answers, for example to confirm an address in Busselton and to clarify when the appellant contacted police.[65]
[64] ts 40 - 44 (28 March 2022).
[65] ts 39, 41 - 42 (28 March 2022).
During cross‑examination the magistrate asked questions on a number of occasions to clarify the answers given by the appellant. At the end of cross‑examination, the magistrate also asked a series of questions in which she pointed out to the appellant possible inconsistencies in his evidence and gave him an opportunity to provide an explanation for those inconsistencies.[66] Those questions were asked as open questions and in circumstances where the appellant, as a self‑represented accused, may not have appreciated the need to ensure that he provided an explanation for all matters that might be relied on by the prosecution.
[66] ts 67 - 72 (28 March 2022).
Clearly magistrates and judges should not 'enter the fray' by supporting, in the form of questioning, the case of one side or the other. In cases where an accused person is unrepresented, it is often, however, necessary for the judicial officer to ask questions to ensure that the person has put their case properly and addressed all matters that are relevant. It is important that judicial officers are cautious in doing this to ensure that they do not give the impression of favouring the prosecution.
Having read the whole of the transcript, we are unable to accept the appellant's contention that the magistrate improperly questioned witnesses or undertook a cross‑examination of the appellant. Nothing in the questions asked by the magistrate amounts to any denial of procedural fairness.
Whilst not within the scope of the ground of appeal, the appellant contends, in his written submissions, that the striking out by the magistrate of witness summonses issued at his request resulted in an unfair trial. The appellant was given an opportunity to explain why the proposed witnesses' evidence was relevant. The only matter that the appellant said was relevant was that one of the proposed witnesses took paint samples from the vehicles (though there was no evidence that any samples had been forensically examined). As it was not in dispute that the appellant's vehicle had been involved in the collision, the evidence of the paint samples was not relevant to any fact in issue. There is no reasonable basis for arguing that the decision to set aside the witness summonses occasioned an unfair trial.
For these reasons, leave in respect of ground 5 was refused.
Appeal against conviction - ground 6 - the merits
Ground 6 alleges that the magistrate misdirected herself on the issue of lies told by the appellant. This ground is, in effect, a repetition of particular (a) of ground 1. It fails for the same reasons. The prosecutor did not rely on the appellant's lies in the interview as evidence of consciousness of guilt. The prosecutor relied on the appellant's admissions in the interview, which the appellant said in his evidence were lies.
For these reasons, leave in respect of ground 6 was refused.
Appeal against sentence - ground 2 - the merits
The appellant submits that the sentence of 15 months' immediate imprisonment for the offence of unlawfully doing an act as a result of which the life, health or safety of a person was, or was likely to be, endangered was manifestly excessive. He cites five decisions of this court in which, he submits, offenders were sentenced to 12 months' immediate imprisonment, and one where the offender was placed on a suspended imprisonment order. The cases referred to were: Narrier v The State of Western Australia;[67] The State of Western Australia v Wallam;[68] The State of Western Australia v Popal;[69] Forrest v The State of Western Australia;[70] The State of Western Australia v Maee;[71] and Evans v The State of Western Australia.[72]
[67] Narrier v The State of Western Australia [2011] WASCA 193.
[68] The State of Western Australia v Wallam [2008] WASCA 117.
[69] The State of Western Australia v Popal [2020] WASCA 200.
[70] Forrest v The State of Western Australia [2019] WASCA 172.
[71] The State of Western Australia v Maee [2018] WASCA 53.
[72] Evans v The State of Western Australia [2019] WASCA 73.
An appeal on the ground of manifest excess is an allegation of implied error. The general principles governing appeals contending that errors should be inferred on the basis that an individual sentence is manifestly excessive or inadequate are well established. In order to determine whether a sentence for an individual offence is manifestly excessive, the offence should be viewed in light of the maximum sentence prescribed by law, the standards of sentencing customarily observed with respect to offences of that type, the place that the criminal conduct occupies on the scale of seriousness of offences of that type, and the offender's personal circumstances.[73]
[73] Kabambi v The State of Western Australia [2019] WASCA 44 [21].
The guidance afforded by comparable cases is flexible rather than rigid. The mere fact that a sentence is within or beyond the range of other sentences imposed for similar offending does not of itself establish that the sentencing discretion has or has not miscarried. The sentencing range for comparable offences is merely one factor to be taken into account in deciding whether an individual sentence is manifestly excessive. The sentences imposed in comparable cases do not fix the range of a sound exercise of the sentencing discretion in a particular case. When an appellate court dismisses an appeal against sentence or resentences an offender, that decision does not of itself fix the upper or lower limit of the range. The sentence to be imposed in a particular case depends on the individual facts and circumstances, having regard to the maximum penalties and all relevant sentencing factors.[74]
[74] The State of Western Australia v PJW [2015] WASCA 113.
The maximum penalty for the offence of unlawfully doing an act as a result of which the life, health or safety of a person was, or was likely to be, endangered is 7 years' imprisonment. The summary conviction penalty of 3 years' imprisonment and a fine of $36,000 is a jurisdictional limit and does not diminish the relevance of the statutory maximum penalty.
In Popal, the offender pleaded guilty to 11 offences, including three counts of doing an act likely to endanger life, health or safety. The most serious offences were two counts of doing an act likely to endanger life, health or safety with intent to harm. The offences involved the respondent firing bullets from a handgun whilst driving a vehicle. The respondent had no criminal history other than two traffic convictions, one for speeding and one for reckless driving. He pleaded guilty and received a 15% discount on the sentences. On appeal this court imposed sentences of 3 years' imprisonment on each of the counts of doing an act likely to endanger life, health or safety.
Popal does not support the appellant's contention that the sentence imposed on him was manifestly excessive. Whilst there are features in Popal that are more serious than the present case, in particular the use of a firearm, the respondent in that case was a person of prior good character, at least prior to his descent into drug use in the two years before the offending, and had pleaded guilty. The sentences for the relevant individual offences were more than twice the sentence imposed on the appellant.
In Forrest, the offender was a prisoner who poured hot water onto another prisoner, causing some of it to splash onto a second prisoner. She was charged with doing an act likely to endanger life, health or safety with intent to harm in relation to the first victim, and unlawfully doing an act likely to endanger life, health or safety in relation to the second victim. The offender in that case pleaded guilty and received a 25% discount on her sentence. She was sentenced to 5 years' imprisonment on the first count and 12 months' imprisonment concurrent on the second count. She appealed against her sentence on the first count. The appeal was dismissed.
Forrest does not support the appellant's contention that the sentence imposed on him was manifestly excessive. Only the second count in that case was of the same type as the offence in this case. The sentence on the second count in Forrest was not challenged on appeal. That sentence must be viewed in the context of the total offending. Furthermore, the appellant in that case received a 25% discount for her plea of guilty, and the injury inflicted in respect of the second count was minor and occurred as a by-product of the commission of the first offence.
In Evans, the offender was convicted after trial on one count of unlawfully doing an act endangering life, health or safety. The offender in that case attended the victim's home armed with a length of hose and a taser. He thrust the taser at the victim and struck him multiple times with the hose. The offence was in retaliation for the victim having damaged the appellant's step‑son's vehicle. The offender was sentenced to 3 years' imprisonment, to be suspended after he had served 1 year of that sentence. The appeal was allowed on the basis that it was not open to the sentencing judge to backdate a partially suspended sentence. On appeal, having regard to the time that the offender had already served, he was resentenced to 18 months' imprisonment, conditionally suspended for 12 months. In concluding that the sentence was not manifestly excessive, the court referred to previous decisions in which sentences had been imposed which ranged from 12 months' imprisonment to 4 years 4 months' imprisonment.
The fact that the sentence of imprisonment in Evans was suspended does not support the appellant's contention that his sentence was manifestly excessive. The reasons for the imposition of a sentence other than immediate imprisonment included the fact that the appellant had only a modest criminal history and that his family had suffered hardship. The total length of the sentence imposed in Evans, before consideration was given to the issue of suspension, was longer than the sentence imposed on the appellant.
In Maee, the offenders each pleaded guilty to two counts of doing grievous bodily harm with intent to maim, disfigure, disable or do grievous bodily harm. One of the offenders also pleaded guilty to unlawfully doing an act endangering, or likely to endanger, life, health or safety. That offender drove his vehicle into the victim's vehicle, forcing it backwards and causing it to veer off a roadway. Some of the occupants of the victim's vehicle fled from the scene, others were restrained and were slashed and stabbed with kitchen knives. The sentence for the offence of unlawfully doing an act endangering, or likely to endanger, life, health or safety was 12 months' imprisonment, though sentences of 6 years 6 months' imprisonment were imposed for the other offences. The sentence for the relevant offence was not challenged on appeal.
Maee does not assist the appellant's contention that the sentence imposed on him was manifestly excessive. The sentence of 12 months' imprisonment for the comparable offence in that case related to the act of driving and forcing the other vehicle off the roadway. The sentence imposed for that offence is only marginally less than that imposed on the appellant in circumstances where the offender in that case had pleaded guilty and received a 25% discount for that plea.
In Narrier, the offender was convicted after trial of one count of stealing a motor vehicle and driving recklessly, and two counts of unlawfully doing an act that endangered, or was likely to endanger, life, health or safety. The offender drove a stolen vehicle at high speed and against the flow of traffic to avoid apprehension by the police. After being stopped, the offender reversed and accelerated heavily into a police vehicle, before driving off. Police continued their pursuit and the appellant again drove the vehicle into the police vehicle. He was sentenced to 2 years' imprisonment for each of the relevant offences, to be served cumulatively. The sentences for those offences was reduced due to overlap with the facts of other offences and totality.
Narrier does not assist the appellant's contention that the sentence imposed on him was manifestly excessive. Although Narrier involved more serious offending than the present case, the sentences imposed for the comparable offences in that case were reduced. Had those offences been independent of any other offending higher sentences would have been imposed. Furthermore, the offender in Narrier was youthful, although this was accorded little weight given the seriousness of the offences.
In Wallam, the offender pleaded guilty to one count of doing an act endangering life with intent to harm, and one count of armed robbery. The two offences were separate incidents. The relevant offence involved the offender deliberately driving his car at the victim, hitting him and driving away. The victim suffered bodily harm. The sentence for doing the act endangering life within intent to harm was increased on appeal to 3 years' imprisonment.
Wallam was a case relating to the more serious offence of doing an act endangering life with intent to harm contrary to s 304(2) of the Criminal Code. It does not provide any assistance in determining whether a sentence for an offence contrary to s 304(1) of the Criminal Code is manifestly excessive. In any event the clearly more serious circumstances of the offence in Wallam resulted in a sentence that was more than twice as long.
There is no tariff for offences against s 304(1) of the Criminal Code. The circumstances of offences of this type can vary significantly. Cases in which there is a significant risk of serious injury but fortuitously no injury has in fact been sustained can be very serious examples of the offence. The nature of the offence against s 304(1)(b) directs attention to the type of injury which could be suffered and the likelihood of that injury occurring, rather than the actual injury sustained. The cases relied on by the appellant do not support a conclusion that the sentence of 15 months' imprisonment was manifestly excessive.
As to the seriousness of the offence, the incident was unprovoked, occurred at night, on a public road, involved a sustained course of conduct (two collisions) and resulted in the victim been forced off the road. There was an obvious potential for serious harm to the victim, who was understandably terrified.
As to personal circumstances, there were no significant mitigating factors. The appellant did not plead guilty and has maintained a stance of denial. He did not have the benefit of youth or prior good character. He did not suggest that his offending was due to his mental illness, though the magistrate accepted that there was likely to be some causative link. The magistrate also accepted that prison was likely to be a more difficult place for the appellant because of his mental illness. However, the magistrate also took into account that the appellant has a history of not being compliant with his medication and of exacerbating his mental health by voluntarily using illicit drugs.
The appellant has not demonstrated that the sentence on the charge of unlawfully doing an act endangering, or likely to endanger, life, health or safety is manifestly excessive. It is not reasonably arguable that the sentence of 15 months' immediate imprisonment imposed for that offence was unreasonable or unjust.
For these reasons, leave in respect of ground 2 was refused.
Appeal against sentence - ground 3 - the merits
As regards ground 3, the appellant's argument is that to impose the mandatory period of disqualification from holding a driver's licence on the reckless driving charge constitutes double punishment because the circumstances of that offence formed part of the circumstances of the offence of unlawfully doing an act endangering life, health or safety for which he received a penalty of 15 months' imprisonment. The appellant submits that the driver's licence disqualification was imposed contrary to s 11(1) of the Sentencing Act.
Section 11 of the Sentencing Act provides that where the evidence necessary to establish the commission of an offence is also the evidence necessary to establish the commission of another offence, the offender may be convicted of both offences but is not to be sentenced for more than one of the offences. The purpose is to ensure that an offender is not punished twice for the same conduct.
Section 60B of the Road Traffic Act provides that a person convicted of a first offence of reckless driving under s 60 or s 60A is liable to a fine of 120 penalty units or to imprisonment for 9 months. Subsection 60B(3) of the Road Traffic Act provides that 'in any event' a court convicting a person of a first such offence must order that the person be disqualified from holding or obtaining a driver's licence for a period of not less than six months.
Section 106A of the Road Traffic Act relevantly provides:
106A. Mandatory disqualification
(1)If this Act requires a court to disqualify an offender from holding or obtaining a driver's licence -
(a)for a specific period provided in relation to the offence concerned (including permanent disqualification); or
(b)for a period not less than a minimum period provided in relation to the offence concerned; or
(c)for a period not less than a minimum period, and not more than a maximum period, provided in relation to the offence concerned,
the requirement is irreducible in mitigation and, irrespective of any sentence the court imposes on the offender, the court must disqualify the offender -
(d)for that period; or
(e)for a period not less than that minimum period; or
(f)for a period not less than that minimum period and not more than that maximum period.
(2)Subsection (1) has effect despite any other written law
The Road Traffic Act distinguishes between the penalty for an offence and an order for disqualification.[75] In s 60B(3) this is reflected by use of the phrase 'in any event'. In context this means that, whatever penalty is imposed for the offence, an order for disqualification must be made. The fact the minimum period of disqualification is irreducible supports the conclusion that it is not a part of the penalty but an order which is consequential upon conviction. The rationale for this is that the primary purpose of a disqualification order is community protection, not punishment.[76] A disqualification order is not, properly speaking, a sentence for the purposes of s 11 of the Sentencing Act. Such an order is not one of the sentences referred to in s 39(2) of that Act. Thus s 11 does not act as a bar to the making of a disqualification order.
[75] See Barnes v Cooper [2011] WASC 5.
[76] Schamotta v The Queen [2002] WASCA 262 [12].
In any event, where a court is required to disqualify an offender from holding or obtaining a driver's licence under the Road Traffic Act such an order must be made 'despite any other written law' (s 106A(2)). Thus, the obligation to make such an order persists despite s 11 of the Sentencing Act.
In the present case, the magistrate made an order in respect of the reckless driving offence that the appellant be disqualified from holding or obtaining a driver's licence for six months. That was the minimum period of disqualification required by s 60B of the Road Traffic Act. Her Honour then said, 'So there will be no further sentence because the reckless driving is really caught up in the section 304 endangering life, health or safety matter'. In referring to 'further sentence' her Honour should not be understood as meaning that the disqualification order was a sentence. Even if she did, mistakenly, have that view it could not change the essential nature of the disqualification order.
The appellant was not sentenced twice for the same conduct. He received no penalty for the reckless driving offence. The making of a disqualification order in respect of that offence was not a sentence and did not breach s 11 of the Sentencing Act. The magistrate did not err in making the disqualification order; indeed she was obliged by s 106A of the Road Traffic Act to make that order.
For these reasons, leave was refused in respect of ground 3.
Conclusion
For the reasons given, leave to appeal was refused and the appeal was dismissed. The appellant had also made an application for bail pending determination of the appeal. The question of bail became redundant with the dismissal of the appeal and an order dismissing that application was also made.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
ID
Research Associate to the Hon Justice Hall
23 AUGUST 2023
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