Bramble v The State of Western Australia
[2021] WASCA 191
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: BRAMBLE -v- THE STATE OF WESTERN AUSTRALIA [2021] WASCA 191
CORAM: MAZZA JA
BEECH JA
HALL J
HEARD: 20 OCTOBER 2021
DELIVERED : 27 OCTOBER 2021
PUBLISHED : 27 OCTOBER 2021
FILE NO/S: CACR 119 of 2021
BETWEEN: BRITTANY LEE BRAMBLE
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: GOETZE AUDCJ
File Number : IND 438 of 2020
Catchwords:
Criminal law - Appeal against sentence - Failure to stop and render assistance after the occurrence of an incident occasioning grievous bodily harm - Failure to report incident to police - Appellant 18 years old at time of incident with no prior record - Appellant left scene due to panic and fear following threats - Sentences of 18 months and 9 months (concurrent) immediate imprisonment -Whether sentences manifestly excessive
Legislation:
Nil
Result:
Leave to appeal granted on ground 4
Leave to appeal refused on grounds 1, 2 and 3
Appeal allowed
Appellant resentenced
Category: B
Representation:
Counsel:
| Appellant | : | N Sinton |
| Respondent | : | K C Cook |
Solicitors:
| Appellant | : | Legal Aid - Perth - Criminal Law Division |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Ainsworth v D (a child) (1992) 7 WAR 102
Fazari v The State of Western Australia [2012] WASCA 176
Petersen v The State of Western Australia [2016] WASCA 66
Ugle v The State of Western Australia [2012] WASCA 104
REASONS OF THE COURT:
This appeal against sentence was heard on 20 October 2021. At the conclusion of the hearing we allowed the appeal, set aside the sentence imposed by the sentencing judge and resentenced the appellant. These are our reasons for allowing the appeal.
The appellant was convicted after trial of one count of failing to stop after the occurrence of an incident which occasioned grievous bodily harm contrary to s 54(2) and s 54(3)(b) of the Road Traffic Act 1974 and one count of failing to report the same incident to the police contrary to s 56(1) and s 56(2) of the Road Traffic Act. She was acquitted of a more serious charge of dangerous driving occasioning grievous bodily harm arising from the same incident. She was sentenced to 18 months' imprisonment for the failure to stop offence and 9 months' imprisonment concurrent for the failure to report offence. The total effective sentence was therefore 18 months' imprisonment. She was also disqualified from holding or obtaining a driver's licence for two years on the failure to stop offence and 12 months concurrent on the failure to report offence.
There are four grounds of appeal. The first three allege that the learned sentencing judge made express factual errors in his sentencing remarks. The fourth ground alleges that the sentences imposed were manifestly excessive. At the hearing of the appeal we refused leave on the first three grounds but granted leave on the fourth ground and allowed the appeal on the basis of that ground. The essential reasons for coming to those conclusions are that it is not reasonably arguable that the sentencing judge made the factual errors alleged in the first three grounds, however the sentences imposed were plainly unjust or unreasonable having regard to the particular circumstances of the offences and the personal circumstances of the appellant. Among the matters of particular significance are that the appellant drove from the scene in fear and panic as a result of threats made to her and her companions and that at the time of the incident she was aged 18 years old and was otherwise of good character.
The facts
The facts as found by the learned sentencing judge were not disputed on the appeal. The three specific errors the subject of grounds 1 to 3 relate to the conclusions the sentencing judge drew from the facts.
On 25 December 2018 the appellant attended a Christmas Day lunch with her partner and his parents. The appellant was the designated driver. At between about 6.15 pm and 6.45 pm they left together to return home with the appellant driving a white Ford Falcon sedan.
As the appellant drove along Mandurah Road she, or one of the others in the car, noticed a man and a woman on the opposite side of the road engaged in what appeared to be a domestic dispute. The man was Paul Tsagaris and the woman was his partner, Tania Kelly. They had pulled to the side of the road following an argument. That argument had led to an attempt by Ms Kelly to call the police and a scuffle for the mobile telephone. There was also a young child in their car, the son of Ms Kelly.
It was jointly decided by those in the appellant's car that they would stop and attempt to give some assistance to the woman. At this point Mandurah Road is a four-lane carriageway separated by a median strip and a low fence. The appellant pulled over to her side of the road and her partner and his father got out. She then drove further along the road to where she was able to do a U-turn. She drove back to where the other car was parked and parked her own car beside it. Her partner's mother then got out of the car, but the appellant remained seated in the vehicle. At some stage the appellant gave her mobile telephone number to Ms Kelly.
The appellant's partner and his father became involved in a physical altercation with Mr Tsagaris which involved grappling and blows, resulting in all of them falling to the ground. At one stage Mr Tsagaris broke away from the others and made a telephone call to his brother. In that call he asked his brother to come to the scene with others and give him assistance.
The appellant's partner and his father and mother returned to the appellant's car and got in. She then reversed the car about 20 m in an apparent attempt to move away from Mr Tsagaris. She looked over her shoulder to see whether it was clear to drive onto the road. Mr Tsagaris approached the car and waved his arms. He shouted words including 'stay' and 'stop, don't go, you'll pay for this'.[1] The sentencing judge accepted that that was a reference to Mr Tsagaris having called for other people who might attend and carry on with the fight.
[1] ts 342.
The sentencing judge accepted that the movements and threats of Mr Tsagaris caused the appellant to panic and to believe that she needed to quickly depart from the scene. Having checked for oncoming traffic she drove the car off the gravel shoulder onto the road and into the lane closest to the median strip. At this time Mr Tsagaris was standing on the road continuing to behave in the manner previously described. He was struck by the car causing him to roll onto the bonnet, into the windscreen and off the left passenger side of the car. Mr Tsagaris’s head hit either the car or the ground and he was rendered unconscious.
The appellant drove from the area and returned home. The sentencing judge accepted that the others in the car, at least two of whom were significantly more mature than the appellant, did not assist by telling her to stop or to render assistance, either at the time or after they arrived home. His Honour noted that there was some 'chaos' in the car and that the others 'were perhaps barking instructions at you'.[2]
[2] ts 346, 349.
Ms Kelly and her son had left the scene before the fight broke out, however a number of other people were in the vicinity and rendered immediate assistance. Mr Tsagaris was placed into the recovery position and an ambulance was called. The sentencing judge accepted that the failure of the appellant to stop or report the incident did not have any worsening effect on Mr Tsagaris's condition.
Some days later the police released some stills from CCTV footage and sought assistance in identifying the appellant's car. She became aware of the publicity and voluntarily attended at a police station on 11 January 2019. She admitted to being the driver of the car. When interviewed she denied being aware that the car had hit Mr Tsagaris and claimed to have seen him in her rear vision mirror standing on the road. In her evidence at trial she maintained that she was unaware of the impact but accepted that she had been mistaken in saying that she had seen Mr Tsagaris standing on the road as she drove off.
Mr Tsagaris suffered a fractured skull. He had a poor prognosis in the days following the incident and there were fears that he may not survive. He was placed into an induced coma for some days while attempts were made to reduce swelling on the brain. He remained in hospital until 5 March 2019. He was left with an acquired brain injury that affected his ability to walk, talk and do daily activities. He has had three major surgeries to his skull. He has lost his senses of taste and smell and has experienced changes to his personality. The fact that he suffered grievous bodily harm as a result of the incident was not in dispute at the trial.
Personal circumstances
As at the date of the offences the appellant was 18 years and 2 months old. She was 20 years old by the time she came to be sentenced. She left school after year 9 and completed certificates in retail management. At the time of sentencing she was employed as a barista and as a dog groomer's assistant. A reference from her employer in the second job spoke well of her.
The appellant has no prior convictions. Nor had she committed any offences in the 2½ years on which she was on bail between the time of the offences and sentencing. The sentencing judge recognised that she came before the court as a person with prior good character. In character evidence led at the trial the appellant was described as being kind and helpful.
Sentencing remarks
The learned sentencing judge concluded that the grievous bodily harm suffered by Mr Tsagaris was attributable to the manner of driving of the appellant but that her acquittal on count 1 was explained by her acting in circumstances of sudden or extraordinary emergency. His Honour found that the appellant was aware that her car had impacted with Mr Tsagaris. He said that, notwithstanding the stressful circumstances, it would have been possible for the appellant to stop after driving a safe distance from the scene. His Honour suggested that had the appellant stopped a short distance down the road and looked back she would have seen that Mr Tsagaris was unconscious on the road and have been able to call for medical assistance. His Honour said that in circumstances where the appellant knew that there had been an impact with her vehicle, she had a duty to stop and check on Mr Tsagaris's welfare once the immediate emergency had passed. However, his Honour accepted that because there were other people in the vicinity who provided assistance there was no apparent worsening of Mr Tsagaris's condition by reason of the appellant not stopping.
His Honour noted that the appellant had attended at a police station and identified herself as the driver on 11 January 2019 after seeing publicity in a local newspaper regarding the incident. However, he noted that the appellant had given some misinformation to the police, in that she said she had been unaware of the impact and had seen Mr Tsagaris standing in her rear vision mirror.
His Honour said that he recognised that the situation was not one entirely of the appellant's own making; she was the designated driver that day because her partner and his parents had been drinking and there was a group decision to stop in order to assist Ms Kelly. His Honour then said:
I also recognise that you were found not guilty on the charge of dangerous driving causing grievous bodily harm which was count 1. I also recognise that there was some chaos in the car. Precisely what was said and by whom we really don't know, but Mr Tsagaris was acting in a way that he shouldn't have been in front of your car, and within your car there's excited people. And you of course, being 18, panicked and that's what gave rise to your successful defence of count 1, being in some emergency.[3]
[3] ts 346.
His Honour noted that the others in the car, including her partner's parents, did not assist the appellant by telling her to stop, either at the time of the impact or subsequently. He said that 'some responsibility for all of this should be sheeted home to others in the car'.[4]
[4] ts 347.
After briefly referring to the appellant's personal circumstances, his Honour detailed the nature and consequences of Mr Tsagaris's injuries by reading from his victim impact statement. This included reference to the injuries, hospitalisation, intensive rehabilitation, permanent disabilities and changes of behaviour. Later in his remarks he referred to the charges as being very serious and said, 'You're lucky that Mr Tsagaris has not died as a result of this'.[5] He also said:
It is self-evident that cars can potentially be lethal weapons when it comes to pedestrians. Although it's not possible to say definitively whether the fractured skull suffered by Mr Tsagaris was caused by his head striking the front left windscreen and pillar or whether it was caused from striking the ground or whether it was a combination of both, the fact is that he suffered a fractured skull in the incident and he would have died without medical intervention.[6]
[5] ts 352.
[6] ts 350.
After referring to the need to impose a punishment that would properly reflect the seriousness of the offending and incorporate elements of personal deterrence, general deterrence and rehabilitation, his Honour said:
Now, aggravating your offending is the callous driving off after this incident without stopping. Now I know that's the charge, but here this man's been severely injured and (inaudible) help.[7]
[7] ts 349.
His Honour referred to the appellant's youth and recognised the importance of rehabilitation both to the appellant and the wider community. He also referred to the fact that the appellant did not have a criminal record and that any term of imprisonment would be a heavier burden on the appellant than someone who was older. He also acknowledged that the appellant had complied with bail terms for more than 2½ years and had not committed any further offences in the interim.
His Honour referred to the need for general deterrence and made reference to the maximum penalty for the offence. He then stated:
There aren't really any aggravating factors here and I've had regard to all available options. Imprisonment is imposed as a penalty of last resort. It's not imposed unless the seriousness of the offence justifies it or the protection of the community requires it and in my view both those criteria require that you receive a term of imprisonment.[8]
[8] ts 352.
His Honour concluded that sentences of imprisonment were the only appropriate penalty in the circumstances and that suspending the sentences was not justified because of the seriousness of the offences. He referred to the need for the 'public to feel protected such that when people are involved in car crashes … that people involved will stop, render assistance, call the police and do whatever is necessary to reduce the impact of the car crash'.[9]
[9] ts 353.
Grounds of appeal
The grounds of appeal are as follows:
1.The learned sentencing judge erred in sentencing the appellant for causing the injuries suffered by the victim;
2.The learned sentencing judge erred in finding the appellant's offending was aggravated by her 'callous driving off after this incident without stopping' when that was in fact the conduct the subject of count 2;
3.The learned sentencing judge erred in determining that the protection of the community required the imposition of a sentence of imprisonment;
4.The learned sentencing judge erred in imposing sentences that were manifestly excessive by type.
Grounds 1 to 3 allege express errors in the judge's sentencing remarks. Ground 4 alleges an implied error based on the type of sentences imposed. It is convenient to deal with grounds 1 to 3 first.
Grounds 1, 2 and 3 - specific errors
Ground 1 alleges, in essence, that the sentencing judge sentenced the appellant as if she was criminally responsible for causing Mr Tsagaris's injuries, notwithstanding her acquittal of dangerous driving. The passages relied on are those referred to at [21] of these reasons.
The appellant does not suggest that the nature and seriousness of the injuries suffered was not relevant to the sentencing exercise. However, the appellant submits that his Honour went further and impermissibly sentenced the appellant for causing Mr Tsagaris's injuries. Reference is made, in particular, to those parts of the sentencing remarks in which his Honour referred to cars being potentially lethal weapons and to the appellant being lucky that Mr Tsagaris did not die.
Offences of failing to stop and failing to report an incident are more serious, and attract a higher maximum penalty, where the incident occasions grievous bodily harm or death. This is so regardless of whether the driver bears criminal responsibility for causing the injury. Thus the fact that Mr Tsagaris suffered grievous bodily harm was a relevant factor in determining the appropriate punishment. That is not to say that the appellant was liable to be punished as if she bore criminal responsibility for causing the injuries.
The passages relied on by the appellant, together with the fact that the learned sentencing judge referred in considerable detail to the nature and consequences of the injuries suffered by Mr Tsagaris, may give the impression that he was treating the appellant as if she was liable for causing the injuries. However, those passages cannot be viewed in isolation. His Honour referred several times to the acquittal on count 1 and was very clearly conscious of that fact when sentencing for counts 2 and 3. When seen in context the references by the sentencing judge to the injuries are relevant to an assessment of the appellant's actions in failing to stop and render assistance.
Ground 2 relates to the comment in which his Honour referred to the appellant's driving off as being callous and aggravating. The passage relied on is referred to at [22] of these reasons. As the driving off was the substance of the charge in count 2, the appellant submits that it was wrong to refer to it as an aggravating factor.
The context in which this comment was made needs to be understood. Immediately following the impugned comment his Honour said 'Now I know that's the charge but here this man's been severely injured'.[10] Furthermore, later in the remarks his Honour specifically stated that there were no aggravating factors. It is apparent from this that his Honour was not conflating elements of the offence with aggravating factors, but was merely referring to the circumstances of this particular offending and the significance of failing to stop in circumstances where the incident had resulted in serious injury.
[10] ts 349.
Ground 3 alleges that the sentencing judge made an error in treating community protection as a relevant factor. The passage relied on is referred to at [24] of these reasons. The appellant submits that there was no evidence that she was at risk of re-offending such that a sentence of preventative detention was warranted.
The passage in which protection of the community was referred to directly quotes from s 6(4) of the Sentencing Act. That sub-section stipulates the circumstances in which a sentence of imprisonment can be imposed. The passage also follows immediately after reference to the need for any punishment to incorporate general deterrence. When viewed in the context of the sentencing remarks as a whole it is plain that his Honour was not suggesting that there was any particular need for the community to be protected from the appellant. Rather, community protection was being considered in the context of general deterrence. That interpretation is confirmed by the remarks quoted at [25].
There is no merit in grounds 1, 2 and 3. Those grounds did not have a reasonable prospect of succeeding. For that reason, leave in respect of them was refused.
Ground 4 - were the sentences manifestly excessive?
By this ground the appellant alleges the sentences imposed were manifestly excessive, that is, that error can be inferred from the sentences themselves. In order to establish this ground the appellant must demonstrate that the sentences imposed were unreasonable or unjust. To determine whether a sentence is manifestly excessive it is necessary to view it in the perspective of the maximum sentence for the offence, the standards of sentencing customarily observed with respect to that offence, the place which the criminal conduct occupies in the scale of offences of that type and the personal circumstances of the offender.
The maximum penalty for the offence of failing to stop and render assistance where the incident occasioned grievous bodily harm contrary to s 54(2) and s 54(3)(b) of the Road Traffic Act is 14 years' imprisonment and the offender must be disqualified from holding or obtaining a driver's licence for a period of not less than two years. The maximum penalty for the offence of failing to report an incident where the incident occasioned death or grievous bodily harm contrary to s 56(1) and 56(2) of the Road Traffic Act is 10 years' imprisonment and the offender must be disqualified from holding or obtaining a driver's licence for a period of not less than 12 months. These penalties were significantly increased in 2008. Since that time there has been an insufficient number of cases to establish a customary sentencing range.
The respondent referred to two cases in which offenders had been dealt with for offences of failing to stop and failing to report.
In Fazari v The State of Western Australia,[11] the appellant was driving a truck and turned across the path of a school bus, causing the bus to swerve, collide with the truck, flip on its side and hit two trees. The appellant made to drive off but was stopped by a witness. He then fled the scene on foot. Many of those on the bus were injured, including the driver and 20 children, one of whom had spinal injuries and a ruptured kidney (which constituted grievous bodily harm). The appellant later told police that one of his employees was driving the truck, resulting in the arrest and charging of that man. Some time later the police established that the appellant was the driver and he was charged with failing to stop where the incident had occasioned grievous bodily harm, failing to report the incident and attempting to pervert the course of justice. The appellant was aged 32 at the time of the incident, had a criminal record, had a suspended driver’s licence and was on bail for a drug offence.
[11] Fazari v The State of Western Australia [2012] WASCA 176.
In Fazari the appellant pleaded guilty at the earliest reasonable opportunity. He was initially sentenced to 2 years' imprisonment for the failure to stop and render assistance, 12 months' imprisonment for the failure to report and 2 years for the attempt to pervert the course of justice. The first and third sentences were ordered to be served cumulatively and the second was concurrent, making a total effective sentence of 4 years' imprisonment. On appeal, a ground alleging that the sentences were manifestly excessive was allowed and the sentences on the first two counts were reduced to 18 months and 6 months imprisonment, respectively.
In Petersen v The State of Western Australia,[12] the appellant was driving his vehicle along a country road towards Geraldton when he struck two pedestrians, both of whom were later pronounced dead at the scene. The appellant initially stopped a short distance from where the victims were lying in the roadway. Other passing drivers stopped, called an ambulance and rendered first aid. However, the appellant left the scene prior to police arriving, only returning two hours later and admitting to police that he had struck the victims. He had consumed alcohol both prior to and after the incident and the effect of this was that it was not possible to accurately assess his blood alcohol level at the time of the incident. He was charged with two counts of failing to stop and render assistance where the incident had occasioned death. The maximum penalty for that offence is, and was at the time, 20 years' imprisonment. The appellant was aged 27 at the time of the incident and had a criminal history which indicated a persistent defiance and disregard for the law in relation to traffic matters, including driving whilst affected by alcohol.
[12] Petersen v The State of Western Australia [2016] WASCA 66.
In Petersen the appellant was convicted after trial. He was sentenced to a total effective sentence of 4 years and 6 months' imprisonment. Appeals against conviction and sentence were dismissed.
For the reasons that follow both Fazari and Petersen differ from the present case in significant respects. Firstly, in both of those cases the offenders fled the scene to avoid the risk of being found personally responsible or to avoid being breathalysed. That is to be contrasted with appellant who left the scene in panic and fear. Secondly, in both of those cases more victims were involved and, in the case of Petersen, the incident resulted in deaths attracting a higher maximum penalty. Thirdly, in neither of those cases did the offenders have the benefit of youth or prior good character as mitigating factors.
The circumstances of the present offence were unusual. The appellant stopped her car in order to render assistance to a woman who she believed was the victim of domestic violence. This led to Mr Tsagaris becoming aggressive and threatening to the occupants of the appellant's car. He made attempts to stop the car and put himself into harm's way. It was accepted that the appellant drove from the scene in circumstances where she was panicking and felt frightened. Those circumstances explain, although they do not excuse, the failure to stop and render assistance.
While the trial judge placed considerable emphasis on the seriousness of the injuries suffered by Mr Tsagaris there was no evidence to suggest that the appellant was aware of the seriousness of those injuries at the time. Nor is there any reason to think that the appellant was deliberately seeking to frustrate an investigation by driving off. It should also be noted that the appellant had given her telephone number to Ms Kelly at the scene before the fight with Mr Tsagaris occurred.
As to the appellant's personal circumstances, the most important factor was her youth. At the time of the offending she was just over the age of 18 years old. She had no criminal record and committed no further offences between the time of the incident and the trial. She was gainfully employed and had complied with bail conditions for a period of some 2½ years.
An offender's youth is a significant mitigating factor. This reflects the view that the interests of the community are best served by determined efforts to rehabilitate a youthful offender (including a very young adult). A very young adult may be impressionable, impulsive and less cognisant of the seriousness of particular offending than an older person. Also, a term of imprisonment will ordinarily be a heavier burden on a very young adult. However, youth must be weighed against the facts and circumstances of the offences which have been committed. A custodial sentence may be required in an appropriate case, despite the offender's youth, in order properly to reflect the need to protect the public or a section of it and the need for personal and general deterrence: see Ainsworth v D (a child)[13] and Ugle v The State of Western Australia.[14]
[13] Ainsworth v D (a child) (1992) 7 WAR 102, 112 (Malcolm CJ, Franklyn & White JJ agreeing).
[14] Ugle v The State of Western Australia [2012] WASCA 104 per Buss JA [71], Pullin JA & Mazza JA agreeing).
In the present case there was every reason to think that the appellant's prospects of rehabilitation were strong. She had no prior criminal record and a supportive family. She was gainfully employed and there were no indications of any health issues or substance abuse problems. There was no reason to believe that a sentence of imprisonment was required for reasons of personal deterrence.
The appellant's youth was also a highly pertinent factor in assessing her degree of culpability. It was relevant in assessing her failure of judgement in driving from the scene and not reporting the incident to the police. As a frightened 18-year-old it might be expected that she would be more impulsive and less able to appreciate the seriousness of the situation and the possible consequences. Nor was the appellant assisted by the older adults in the car. As the sentencing judge acknowledged, there was chaos in the car at the time of leaving and the older adults did not instruct the appellant to stop or report the accident. That she subsequently did so, and admitted that she was the driver, was to her credit.
While the circumstances of the offence, including the seriousness of the injuries, justify the imposition of terms of imprisonment for these offences the failure to suspend those sentences was unjust and unreasonable. It was not open to the learned sentencing judge in the proper exercise of his discretion to reach a conclusion that suspension was inappropriate in the particular circumstances of this case. For those reasons ground 4 is made out.
Conclusion
Having regard to all relevant factors, including the maximum penalties, the circumstances of the offences and the personal circumstances of the appellant, we concluded that suspended sentences of imprisonment were appropriate. Such sentences adequately incorporate general deterrence whilst ensuring that the sentences in this case are fair and just. In determining the length of the sentences we took into account that by time of the hearing of the appeal the appellant had served approximately two months in prison.
For the above reasons at the hearing of the appeal we made the following orders:
1.Leave granted on ground 4.
2.Leave refused on grounds 1 to 3.
3.Appeal allowed.
4.Sentences imposed in the District Court set aside.
5.The appellant be resentenced on the following basis:
•On count 2 - 12 months' imprisonment suspended for 12 months. The appellant to be disqualified from holding a driver's licence for two years.
•On count 3 - 6 months' imprisonment (concurrent) suspended for 12 months. The appellant to be disqualified from holding a driver's licence for 12 months (that disqualification to be served concurrently with the disqualification on count 2).
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
EM
Associate to the Honourable Justice Hall
27 OCTOBER 2021
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