Brewerton v The State of Western Australia
[2017] WASCA 191
•20 OCTOBER 2017
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: BREWERTON -v- THE STATE OF WESTERN AUSTRALIA [2017] WASCA 191
CORAM: MARTIN CJ
MAZZA JA
MITCHELL JA
HEARD: 7 AUGUST 2017
DELIVERED : 20 OCTOBER 2017
FILE NO/S: CACR 160 of 2016
CACR 161 of 2016
BETWEEN: JEREMY TREVOR BREWERTON
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram :FIANNACA J
File No :INS 67 of 2016
Catchwords:
Criminal law - Appeal against sentence - Manslaughter - Where appellant suffered an epileptic seizure while driving a motor vehicle - Guilty plea - Whether sentence of 5 years' immediate imprisonment was manifestly excessive - Whether the learned sentencing judge erred in finding that the plea of guilty was not entered at the first reasonable opportunity pursuant to s 9AA of the Sentencing Act 1995 (WA) - Whether the learned sentencing judge erred by failing to take into account as a mitigating factor the appellant's prospect of deportation from Australia to New Zealand
Criminal law - Appeal against order - Motor vehicle driver's licence disqualification - Whether disqualification period of 10 years was manifestly excessive
Legislation:
Criminal Code (WA), s 280
Sentencing Act 1995 (WA), s 9AA, s 105
Result:
CACR 160/16
Application granted
Leave to appeal on ground 1 refused
Leave to appeal on ground 2 granted
Appeal dismissed
CACR 161/16
Application granted
Leave to appeal granted
Appeal allowed
Category: D
Representation:
Counsel:
Appellant: Mr S B Watters
Respondent: Mr B Murray
Solicitors:
Appellant: Patti Chong Lawyer
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Director of Public Prosecutions (Cth) v Besim [No 3] [2017] VSCA 180
Donovan v The State of Western Australia [2017] WASCA 170
Gillett v The Queen [2006] NSWCCA 370; (2006) 166 A Crim R 419
Gray v The State of Western Australia [2015] WASCA 108; (2015) 71 MVR 31
Green v The Queen [2011] HCA 49; (2011) 244 CLR 462
Greenland v The State of Western Australia [2017] WASCA 83
Hickling v The State of Western Australia [2016] WASCA 124
Marshall v The State of Western Australia [2015] WASCA 156; (2015) 253 A Crim R 99
R v Harris [2015] NSWCCA 81; (2015) 70 MVR 412
Re Calder; ex parte Cable Sands (WA) Pty Ltd (1998) 20 WAR 343
Rossi v The State of Western Australia [2014] WASCA 189; (2014) 47 WAR 508
JUDGMENT OF THE COURT: At about 1.30 pm on 1 March 2015, the appellant drove his motor vehicle into the back of a stationary taxi at the intersection of Albany Highway and Denny Avenue in Kelmscott. As a result, the taxi driver, Mr Salman Alyassin, suffered multiple injuries from which he died a short time later.
On 21 July 2016, the appellant pleaded guilty to the unlawful killing of Mr Alyassin contrary to s 280 of the Criminal Code (WA). Later that day, Fiannaca J sentenced the appellant to 5 years' immediate imprisonment with eligibility for parole and disqualified him from holding or obtaining a motor driver's licence for a period of 10 years. The appellant now appeals to this court against the sentence of imprisonment and the disqualification. He requires extensions of time to do so, the appeals having been brought approximately two months out of time. The delay has been satisfactorily explained. We would grant the extensions of time.
The facts of the offending
At the time of the offence, the appellant was 40 years of age. He was employed as a real estate agent. He worked in the Kelmscott area.
In 2002, the appellant was diagnosed with temporal lobe epilepsy and is subject to seizures. The most common form of seizure suffered by the appellant involves an impairment of consciousness such that, although he is capable of functioning and performing tasks, he is unaware of what he is doing. His Honour described this state as 'somewhat akin to a sleepwalking state' or 'a state of automatism'.[1] Often, when the appellant suffers such a seizure, he has little, if any, memory of what occurred during the seizure and the period immediately after.[2]
[1] Sentencing remarks [7].
[2] Sentencing remarks [8].
Since 2004, the appellant has been treated by Dr Susan Ho, a consultant neurologist and epileptologist.[3] The appellant's condition has fluctuated over the years. These fluctuations are largely influenced by whether the appellant is compliant with the medication that has been prescribed for his condition and the type of medication that was prescribed.[4] There have been times when, due to the adverse side effects of the medication, the appellant has not been compliant with it.[5]
[3] Sentencing remarks [10].
[4] Sentencing remarks [9].
[5] Sentencing remarks [9].
Because of his epilepsy, the appellant requires medical clearance before being able to drive a motor vehicle. Between May 2013 and January 2015, Dr Ho declared the appellant to be medically unfit to drive on eight occasions. In the periods in between, Dr Ho sent medical certificates to the Department of Transport to certify that the appellant was fit to drive with certain conditions. She did so when she assessed that the appellant had been free of seizures for a sufficient period of time (usually determined to be three months in accordance with the guideline from the Department). Dr Ho assessed that the appellant was fit to drive in the period immediately prior to August 2014.[6]
[6] Sentencing remarks [10].
However, on 4 August 2014, the appellant suffered a seizure, and lost control of his car. He collided, at a relatively low speed, into a traffic light post. The appellant had no memory of this incident. As a result, Dr Ho declared the appellant to be medically unfit to drive until further notice. Although it appears that the Department of Transport was not officially notified of Dr Ho's decision, the appellant was well aware of the prohibition.[7]
[7] Sentencing remarks [11].
In December 2014, the appellant's condition deteriorated. On 6 January 2015, he suffered another seizure and fell off his bicycle. Again, he had no memory of what happened. After this incident, Dr Ho changed the appellant's medication which somewhat improved his condition. The appellant had no further seizures until 1 March 2015.[8]
[8] Sentencing remarks [12].
On 1 March 2015, the appellant made arrangements to meet a friend for coffee at a café in Kelmscott. He then drove to his office in Rundle Street, Kelmscott, where he did some work. At about 1.30 pm, he left the office, turned right from Rundle Street onto Albany Highway and drove in a northerly direction along Albany Highway with the intention of meeting his friend. The distance from the intersection of Albany Highway and Rundle Street to the intersection of Albany Highway and Denny Avenue is about 900 m.[9]
[9] Sentencing remarks [14].
Somewhere along Albany Highway, the appellant had a seizure and lost control of his car. It was accepted by the sentencing judge that the appellant suffered the kind of seizure we mentioned earlier where, although he is able to perform tasks, he does so 'essentially, as an automaton'.[10]
[10] Sentencing remarks [16].
The appellant was seen to travel at speed towards the intersection of Albany Highway and Denny Avenue. His speed was later calculated to be approximately 149 km per hour.[11] The appellant's vehicle did not appear to brake or slow down at any stage. The vehicle ploughed into the rear of Mr Alyassin's taxi, launching it into the air and propelling it through the intersection. The taxi ended up on the other side of the road and was mounted sideways on the footpath.[12] After colliding with the taxi, the appellant's vehicle continued into the intersection where it crashed into another vehicle.
[11] Sentencing remarks [17].
[12] Sentencing remarks [17].
As we have said, Mr Alyassin died soon after, from the multiple injuries he sustained in the crash. The appellant suffered minor injuries.[13]
[13] Sentencing remarks [19].
The appellant's personal circumstances
The appellant was born in New Zealand. He is single and has no children. He is the eldest of five children. His parents and three of his siblings live in New Zealand. He has a brother who resides in Perth. The appellant is close to his family, both here and in New Zealand.[14] The appellant is not an Australian citizen, but has been a permanent resident since 1997.
[14] Sentencing remarks [24].
The appellant completed year 12 and, after a period of study, has been employed mostly in the real estate industry.
The appellant is an active member of a Christian church which has been very supportive of him and members of which provided his Honour with a number of favourable character references.[15]
[15] Sentencing remarks [27].
Since his diagnosis, the appellant has struggled to accept that he suffers from epilepsy. Not only has he suffered with the debilitating effects of the seizures, but also from the adverse side effects of his anti‑epilepsy medication. Although on occasions he has been non‑compliant with his medication, that was not the case on the day of the offence.
The appellant has no relevant driving convictions. However, he is not a first offender. In 2013, he was sentenced in the District Court for offences of cultivating cannabis with intent to sell or supply, possession of cannabis and possession of cannabis with intent to sell or supply. He was sentenced to a conditionally suspended imprisonment order and fines.
We have already referred to the character references presented to his Honour from members of the church community to which the appellant belongs. In addition, other members of the community wrote positive character references. His Honour also received a letter from the CEO of Epilepsy WA which spoke positively of the appellant's efforts to cope with his epilepsy.
The victim impact statement
His Honour took into account a victim impact statement written by Mr Alyassin's wife. The statement describes the profound distress caused to her and her children by Mr Alyassin's death, as well as the negative effect that his death will have upon her and her children in the future.[16]
[16] Sentencing remarks [43] ‑ [48].
The sentencing remarks
His Honour described the appellant's plea of guilty as 'a significant mitigating factor'. However, he concluded that the plea was not entered at the earliest reasonable opportunity. His Honour gave a discount for the plea of guilty, pursuant to s 9AA of the Sentencing Act 1995 (WA) (SA) of 15%.[17] The finding that the plea of guilty was not entered at the first reasonable opportunity is challenged in ground 2 of the appeal against sentence. We will have more to say about this later in these reasons.
[17] Sentencing remarks [49], [52].
In addition to the plea of guilty, his Honour found that the appellant was entitled to mitigation by reason of his prior good character, notwithstanding the drug convictions we mentioned earlier. He also found that the appellant was truly remorseful for what he has done[18] and that he is 'likely to be a low risk of reoffending'.[19]
[18] Sentencing remarks [58].
[19] Sentencing remarks [61].
The learned sentencing judge assessed the criminality of the appellant as being 'at the mid‑range level, rather than at the lower end'.[20] Consistently with the positions adopted by the parties in their submissions on sentence, his Honour was careful to identify the appellant's criminality as being constituted by driving:
(a)contrary to medical advice which had, in effect, prohibited him from doing so;
(b)in the knowledge that he previously had an accident (the accident on 4 August 2014) when he had a seizure; and
(c)in the knowledge that there was a potential to lose control of the vehicle so that it became, as his Honour put it at one point, 'an unguided missile'.[21]
[20] Sentencing remarks [64].
[21] Sentencing remarks [38] ‑ [39].
His Honour specifically found that the appellant's criminality was to be judged at the point immediately before he lost control of his vehicle due to his epileptic seizure. Accordingly, the speed at which he drove and his failure to brake to avoid the collision with Mr Alyassin's taxi were not regarded as aggravating factors.[22]
[22] Sentencing remarks [42].
His Honour found that the prospect that the appellant may be deported as a result of the conviction was not a relevant sentencing factor.[23] This finding is challenged and is the subject of ground 1.
[23] Sentencing remarks [23].
Appellate sentencing principles
Sentencing is a discretionary exercise. An appellate court can intervene only if the appellant demonstrates either an express or implied material error. Express error involves acting on a wrong principle, for example by mistaking the law or facts, or taking into account an irrelevant matter, or failing to take into account a relevant matter. Proposed grounds 1 and 2 in CACR 160 of 2016 are allegations of express error. Proposed ground 3 in CACR 160 of 2016 and the allegation in CACR 161 of 2016 that the motor driver's licence disqualification was manifestly excessive are examples of alleged implied error. Implied error arises where the end result is so unreasonable or unjust that the court must conclude that a substantial wrong has occurred. An appellate court cannot substitute its own opinion for that of the sentencing court merely because the appellate court would have exercised a sentencing discretion differently.
The orthodox approach to an allegation of manifest excess in respect of a sentence is to view that sentence in light of the maximum sentence prescribed by the law for the crime, the standards of sentencing customarily imposed with respect to it, the place that the criminal conduct occupies in the scale of seriousness of crimes of that type, and the offender's personal circumstances. An analogous approach is taken when it is said that an order, such as a motor driver's licence disqualification, is manifestly excessive.
Appeal against sentence - CACR 160 of 2016
The appellant relies on three grounds of appeal. Ground 1 alleges that his Honour erred by failing to take into account a relevant mitigating factor, namely that the appellant faces deportation as a consequence of the sentence imposed. Proposed ground 2 alleges that his Honour erred by failing to find that the appellant, in the circumstances of the case, entered his plea of guilty at the first reasonable opportunity and by doing so failed to give the appellant a 25% discount for his plea of guilty pursuant to s 9AA of the Sentencing Act. Ground 3 alleges that the sentence of 5 years' immediate imprisonment was manifestly excessive.
Leave to appeal has been granted on ground 3, while the question of leave to appeal on grounds 1 and 2 was referred to the hearing of the appeal.
Proposed ground 1
There is no merit to this proposed ground.
The ground proceeds on the basis that a submission was made to the learned sentencing judge to take into account as a mitigating factor that the appellant faces deportation as a consequence of the sentence imposed.
On our reading of the written submissions made on behalf of the appellant in the court below[24] and the oral submissions made by defence counsel to the sentencing judge, no explicit submission was made to the court to the effect that the appellant's risk of deportation was a mitigating factor. The only reference to the risk of deportation was in the description of the appellant's personal circumstances. Despite this lack of clarity, we will assume, favourably to the appellant, that the matter was put in issue.
[24] Blue AB 62.
The law as to whether the prospect of deportation from Australia is a mitigating factor is settled in this State. This court and its predecessor have consistently held that the prospect of deportation is not a mitigating circumstance. This position was most recently affirmed in Hickling v The State of Western Australia.[25] The matter is not without controversy. The position in New South Wales and the Northern Territory is the same as this State. However, in Victoria, and more recently in Queensland, it has been held that the prospect of deportation may be a mitigating factor depending upon whether the offender is able to provide proof that deportation will in fact be a hardship for him or her.[26]
[25] Hickling v The State of Western Australia [2016] WASCA 124.
[26] See Hickling [49] ‑ [55]. The differing views on this issue were recently noted in Director of Public Prosecutions (Cth) v Besim [No 3] [2017] VSCA 180 [52] ‑ [53] (Warren CJ, Weinberg & Kaye JJA).
The appellant submitted that this court should overrule Hickling and other cases decided by this court and its predecessor and adopt the approach taken by Victoria and Queensland.
The circumstances in which an intermediate appellate court can overrule its previous decisions were enunciated by Heydon J in Green v The Queen.[27] This court is only entitled to overrule a previous decision if it is satisfied that the decision was 'manifestly wrong' or where it 'entertains a strong conviction as to the incorrectness of the earlier decision'.[28] Other considerations include that the earlier decision did not rest upon a principle carefully worked out in a significant succession of cases or there was a difference between the reasons of the justices constituting the majority in the earlier case.
[27] Green v The Queen [2011] HCA 49; (2011) 244 CLR 462 [83] ‑ [87]. See also Re Calder; ex parte Cable Sands (WA) Pty Ltd (1998) 20 WAR 343, 354 (Steytler J).
[28] Green [84].
The arguments put to this court to the effect that its previous decisions on this point were 'manifestly wrong' are in essence a repetition of arguments put and rejected in Hickling. We have not been persuaded that the earlier decisions of this court are 'manifestly wrong'. Nor do we have a conviction that they are incorrect. As the judgments in Hickling make clear, the decision in that case rested upon the reasoning in a significant succession of previous cases. An analysis of those cases reveals no real difference between the reasons of the judges. We would not overrule Hickling.
Even if the law is as expressed in Victoria and Queensland, ground 1 could not succeed. This is because the evidence before the primary court failed to establish hardship, as the appellant's counsel all but conceded in oral argument.[29] The only submission put to this court on hardship was to the effect that if the appellant was deported he would lose the relationships he had established in this State with his church, Dr Ho and Epilepsy WA. While it may be accepted that these relationships would be severed, there is no evidence that he would be unable to establish similar relationships in New Zealand. Indeed, it would be surprising if similar relationships were unavailable to him in New Zealand. It must also be recalled that the appellant's close family live there. Hardship has not been established. Proposed ground 1 has no reasonable prospect of success. Leave to appeal should be refused.
[29] Appeal ts 5.
Proposed ground 2
Proposed ground 2 alleges that his Honour erred by failing to give the appellant the maximum discount of 25% for his plea of guilty pursuant to s 9AA SA.
It is not open to a court to give a discount of 25% pursuant to s 9AA SA unless the offender pleads guilty or indicates that he or she would plead guilty 'at the first reasonable opportunity'.[30]
[30] Section 9AA(4)(b) SA.
It will be recalled that in the present case his Honour gave a 15% discount pursuant to s 9AA SA. His Honour found that the appellant had not entered or indicated his plea of guilty 'at the first reasonable opportunity'. Proposed ground 2 challenges this finding. The appellant does not allege that the discount was inadequate if the plea was not entered at the first reasonable opportunity. The appellant submits that in the circumstances of the case, the plea of guilty was entered at the first reasonable opportunity and as a result his Honour should have given the maximum discount available under s 9AA SA. The particulars to the proposed ground allege that the first reasonable opportunity to plead guilty was after plea negotiations between the appellant and the State had concluded.
The appellant's written and oral submissions in support of this ground do not provide the court with a clear chronology of the events which led to the entry of the plea of guilty. Nor was the court provided with any of the relevant correspondence. At the conclusion of the appeal hearing, with the agreement of the parties, the appellant was ordered to file and serve a chronology of events relating to the timing of the entry of the plea of guilty. That chronology, supported by an affidavit sworn by the appellant's solicitor, Ms Peng Sa Chong, which annexed the relevant correspondence was filed by the appellant on 21 August 2017. A letter to the court dated 25 August 2017 acknowledges receipt of the chronology and Ms Chong's affidavit. The respondent took no issue with either document.
The following chronology is based on the record and on the documents filed by the appellant on 21 August 2017:
| 1 March 2015 | Offence committed |
| 20 March 2015 | Appellant charged with manslaughter |
| 21 April 2015 | Appellant's first court appearance at the Armadale Magistrates Court. The proceedings were adjourned to enable the appellant to obtain legal advice to the Stirling Gardens Magistrates Court on 20 May 2015. In an email from the Director of Public Prosecutions (DPP) to the appellant's solicitors, the DPP advised that it had not yet received the brief from the police and that it anticipated the brief would be 'reasonably voluminous'. The DPP proposed a 'reasonably long' adjournment.[31] |
| 20 May 2015 | Proceedings adjourned at the request of the State to 12 August 2015.[32] |
| 12 August 2015 | Proceedings adjourned at the request of the State to 30 September 2015. |
| 27 August 2015 | Email sent by the appellant's solicitors to the DPP requesting particulars once the prosecution has received the brief from the police 'of the precise act or omission which the State says gives rise to the criminal negligence underlying the manslaughter charge'.[33] |
| 21 and 25 September 2015 | Emails from the appellant's solicitors to the DPP seeking a response to the request for particulars.[34] |
| 30 September 2015 | Adjournment of the proceedings at the request of the State to 25 November 2015. |
| 24 November 2015 | Email from the DPP to the appellant's solicitors in answer to the request for particulars. The particulars provided by the DPP include '[the appellant] deciding to drive the vehicle on the date in question', 'driving at a grossly excessive speed' and colliding with the 'victim's vehicle … without attempting to brake or otherwise avoid a collision'.[35] |
| 25 November 2015 | Proceedings adjourned by consent to a disclosure committal hearing on 27 January 2016 to enable defence counsel to obtain further instructions from the appellant. |
| 1 December 2015 | The appellant instructed his solicitors to write to the DPP and offer a plea of guilty to the lesser charge of dangerous driving occasioning death. |
| 4 January 2016 | Letter by the appellant's solicitors to the DPP offering to plead guilty to dangerous driving occasioning death. In the letter, the appellant asserts that the particulars remain inadequate. Nevertheless, it said, in effect, that whether the alleged criminally negligent conduct was 'driving at speed' or 'deciding to drive knowing of his medical condition' a charge of manslaughter was inappropriate. If the allegation being pursued by the DPP was that the decision to drive was criminally negligent, it was claimed that the State would not be able to prove 'causation'.[36] |
| 27 January 2016 | Disclosure committal hearing adjourned to 24 February 2016 in order to give the DPP time to consider the appellant's plea offer. |
| 24 February 2016 | Disclosure committal hearing adjourned to 30 March 2016 to give the DPP additional time to consider the plea offer. |
| 14 March 2016 | Email from DPP to the appellant's solicitors rejecting the plea offer and advising that 'the prosecution will be proceeding on a charge of manslaughter'.[37] |
| 23 March 2016 | The appellant instructed his solicitors that he would plead guilty to manslaughter. |
| 24 March 2016 | Email from the appellant's solicitors to the DPP advising that the appellant intended to plead guilty to manslaughter on the basis that his decision to drive was criminally negligent and not on the basis of his manner of driving.[38] |
| 30 March 2016 | The appellant pleaded guilty to manslaughter in the Stirling Gardens Magistrates Court and is committed to the Supreme Court for sentence on 21 July 2016. |
| 21 July 2016 | The appellant pleaded guilty to manslaughter in the Supreme Court before Fiannaca J. The State accepted the defence case as to criminal negligence. |
[31] Email, DPP to appellant's solicitors 8 May 2015, Ms Chong's affidavit, page 3.
[32] Consent minute, Ms Chong's affidavit, page 6.
[33] Ms Chong's affidavit, page 11.
[34] Ms Chong's affidavit, pages 9, 10.
[35] Ms Chong's affidavit, page 19.
[36] Letter from Timpano Legal to DPP dated 4 January 2016, Ms Chong's affidavit, pages 22 ‑ 25.
[37] Ms Chong's affidavit, page 29.
[38] Ms Chong's affidavit, page 30.
In the proceedings before Fiannaca J, defence counsel submitted that the plea of guilty had been entered at the first reasonable opportunity and warranted a 25% discount pursuant to s 9AA SA. In support of this submission, defence counsel, in fairly general terms, described the events leading up to the entry of the plea.[39] She informed his Honour that after the appellant's offer to plead guilty to the lesser charge had been rejected, the State 'made a concession' that the criminal negligence upon which the manslaughter charge was based was '[the appellant's] decision to drive … and that the actual speed and the conduct afterwards wasn't [voluntary]'.[40] Defence counsel indicated that, as a consequence of this concession, the appellant entered the plea of guilty to manslaughter.
[39] ts 12 ‑ 13.
[40] ts 13.
However, shortly after indicating to his Honour that the plea of guilty had been entered in these circumstances, defence counsel informed the court that the appellant's position had 'always' been:
[T]hat the manslaughter charge was appropriate and that the negligent act should always have been particularised as the act - or the decision to drive, as opposed to anything else, and once the State agreed to that based - with the proviso of the medical evidence supporting it, of course, then the plea was entered.[41]
[41] ts 14.
Once told this, his Honour, in effect, asked why a plea of guilty to dangerous driving occasioning death had been offered, to which defence counsel said:
[O]ur position was that perhaps the gravamen of the offending, being his decision to drive, and the circumstances in which he came to drive were perhaps better suited to a charge of dangerous driving occasioning death as opposed to manslaughter.[42]
[42] ts 14.
The prosecutor did not accept that the appellant's plea of guilty had been entered at the first reasonable opportunity. The prosecutor submitted it would have been open to the appellant to plead guilty at 'a much earlier stage' than he did.[43] However, the prosecutor said that the benefits to the State and to Mr Alyassin's family were such that a considerable discount under s 9AA SA was appropriate.[44]
[43] ts 19.
[44] ts 19.
The learned sentencing judge rejected the submission that the plea of guilty had been entered at the first reasonable opportunity. He said:[45]
The first matter that I regard to be a significant mitigating factor is your plea of guilty. It was not entered at the earliest opportunity. Your counsel, Ms Jessup, has sought to argue otherwise, but it seems to me that the fact that you sought to negotiate with the State in order to plead to a lesser offence, and that it took some time for the State to decide whether it would accept that offer, is not a matter that you can now rely upon to suggest that I should simply ignore that lapse of time and regard your plea as being at the first reasonable opportunity for the purposes of s 9AA of the Sentencing Act 1995 (WA).
It seems to me that there was always the opportunity for you to accept your criminal responsibility, in the way that you have done in these sentencing proceedings, at the earliest opportunity and for any issue about the facts to be dealt with by way of a trial of the issues if that was necessary. As it has turned out, it was not necessary because the State accepts the basis upon which you should be sentenced.
The law - first reasonable opportunity
[45] Sentencing remarks [49] ‑ [50].
The relevant text of s 9AA SA is as follows:
9AA. Plea of guilty, sentence may be reduced in case of
(1)In this section -
fixed term has the meaning given in section 85(1);
head sentence, for an offence, means the sentence that a court would have imposed for the offence if —
(a)the offender had been found guilty after a plea of not guilty; and
(b)there were no mitigating factors;
victim has the meaning given in section 13.
(2)If a person pleads guilty to a charge for an offence, the court may reduce the head sentence for the offence in order to recognise the benefits to the State, and to any victim of or witness to the offence, resulting from the plea.
(3)The earlier in the proceedings the plea is made, the greater the reduction in the sentence may be.
(4)If the head sentence for an offence is or includes a fixed term, the court must not reduce the fixed term under subsection (2) -
(a)by more than 25%; or
(b)by 25%, unless the offender pleaded guilty, or indicated that he or she would plead guilty, at the first reasonable opportunity.
…
The meaning and effect of the expression 'first reasonable opportunity' was considered in Rossi v The State of Western Australia by McLure P (Mazza JA & Hall J agreeing), who said:[46]
[46] Rossi v The State of Western Australia [2014] WASCA 189; (2014) 47 WAR 508 [64] ‑ [70].
Both subs (3) and (4) of s 9AA concern the timing of the plea of guilty. The timing of the plea self-evidently falls within the scope of the objective/utilitarian benefits which are broadly described in subs (2) as 'the benefits to the State, and to any victim of or witness to the offence'.
Subsection (4) of s 9AA has more than one purpose. Its primary purpose is to fix the upper limit of the discretionary discount range (the maximum discount). However, the condition that enlivens the power to grant the maximum discount also informs the approach to the exercise of the discretion in subs (2) and the proper construction of subs (3).
First, the condition that enlivens the power to grant the maximum discount recognises that the accused does not control the scheduling of court hearings at which it is possible to enter a plea. Accordingly, in the exercise of the discretion in subs (2), the court must take into account an indication by the accused that he or she would plead guilty. As the utilitarian matters in subs (2) provide the touchstone of relevance, the indication must be unequivocal, not provisional or conditional. That is, it must be an indication on which the State can reasonably rely to halt preparation of the case until the next hearing at which the court can take the plea. A failure to enter the plea on the first available opportunity thereafter is likely to be relevant in determining what if any weight is given to the accused's indication.
Second, it is clear from the choice of 'first reasonable opportunity' as the basis for enlivening the power in subs (4) to give the maximum discount, that subs (3) is not intended to be absolute. As the relevant provisions of the CPA demonstrate, it is not the State's intention to reward hasty or unreasonable pleas of guilty by the carrot of a higher discount for such a plea. Subsection (3) means, in effect, the earlier the plea is made from the starting point of the first reasonable opportunity to plead guilty.
The appellant makes a number of submissions on the relationship between s 9AA and the CPA, two of which can be accepted. They are first that often, but not in every case, the first reasonable opportunity for an accused person to plead guilty will be after the statutory requirements in s 35(4), (5), (6), (11) and (12), where applicable, have been satisfied. Second, that would not be the case if the reason for not pleading guilty at an earlier stage, and the related loss of relevant benefits under s 9AA, is due to the conduct of the State.
The appellant's third proposition is that the legislature has recognised in (relevantly) s 39 of the CPA that before an accused person enters a plea to an offence with which they have been charged they are entitled to know and understand the charge in the prosecution notice (notice), to have had time to consider the notice and to seek legal advice about it, and to be advised of the relevant procedures that may be invoked as a consequence of being charged. That is a fair summary of s 39 which addresses the subjective circumstances of the accused at the time of the hearing. However, the criterion of 'first reasonable opportunity' is objective. An accused cannot sit back and fail to take the necessary steps to put himself in a position to plead.
The appellant also contends that where an accused does not know that they are guilty of the offence charged because they do not know the facts that make up every element of the offence, it cannot be concluded mechanically, if the accused pleaded guilty at a later stage in the proceedings, that the plea was not entered at the first reasonable opportunity. This statement is too broad. It depends on what is meant by knowledge and the reason for the claimed lack of knowledge.
Disposition
The first thing to observe as a result of considering the chronology and the supporting documents is that, contrary to the submission put by defence counsel to the sentencing judge, the appellant did not plead guilty as a consequence of any concession made by the State. The plea of guilty to manslaughter was entered after the State rejected the appellant's offer to plead guilty to dangerous driving occasioning death. The DPP's email dated 14 March 2016 makes no concession and there is no other evidence before this court which shows that a concession was made.
The State's case against the appellant was capable of being formulated on the basis that his manner of driving immediately before the collision was criminally negligent having regard to the grossly excessive speed at which his vehicle was travelling and his failure to brake in order to avoid the collision with Mr Alyassin's taxi. It was also open for the State to put its case on the basis that it was criminally negligent for the appellant to be driving at all, given his frontal lobe epilepsy, the episodes on 4 August 2014 and 6 January 2015 and Dr Ho's declaration that he was unfit to drive.
We accept that, on the facts in this case, the appellant was entitled to withhold entering a plea until the State particularised its case. This is because if the State chose to run its case on the basis of the appellant's manner of driving, questions potentially arose as to whether the appellant could be acquitted by reason of unsound mind pursuant to s 27 of the Criminal Code.[47]
[47] See Donovan v The State of Western Australia [2017] WASCA 170.
The particulars provided by the DPP to the appellant's solicitors in the email of 24 November 2015 were to the effect that the State relied upon the manner of driving and/or the appellant's decision to drive.
Although claims to the contrary were made in the letter of 4 January 2016, these particulars were sufficient to enable the appellant to enter a plea to the charge of manslaughter, including by offering to plead guilty to the charge only on the basis of the appellant's decision to drive. Of course, the appellant was entitled to take a reasonable time to consider his position in light of the particulars.
In our opinion, on an objective assessment of all of the circumstances, the first reasonable opportunity to plead guilty to the charge of manslaughter was at the disclosure committal hearing on 27 January 2016. By that time the State had provided adequate particulars of its case and the appellant had been given an opportunity to consider them. Plainly, the appellant did not enter or indicate a plea of guilty to manslaughter on that occasion. Instead, he offered to plead guilty to dangerous driving occasioning death, but he did so against the background that it had 'always' been his position that a manslaughter charge based on his decision to drive was an 'appropriate' charge. Once the offer was rejected he quickly entered the guilty plea in accordance with the position he had 'always' taken.
It follows that his Honour did not err in finding that the plea of guilty entered by the appellant to the charge of manslaughter was not entered at the first reasonable opportunity.
Nevertheless, it was in all of the circumstances of this case a plea entered at an early stage of the proceedings. With great respect to his Honour, we do not agree that the appellant ought to have, in effect, pleaded guilty and sought a trial of the issues. As we have said, on the facts of this case, it was reasonable for the appellant to have sought particulars of the charge before entering his plea. We also observe that a trial of the issues may have a bearing on the quantum of the reduction to be given under s 9AA SA.[48]
[48] Greenland v The State of Western Australia [2017] WASCA 83.
While we would give leave to appeal on proposed ground 2, the ground has not been made out.
Proposed ground 3
Proposed ground 3 is in these terms:
3.The sentence of 5 years' immediate imprisonment imposed was, in all the circumstances, manifestly excessive.
Particulars
3.1The plea of guilty.
3.2The appellant's antecedents.
3.3The criminality involved.
3.4Sentences imposed in broadly comparable cases.
The sentencing principles with respect to manslaughter offences have been recently described by this court in Marshall v The State of Western Australia.[49]
[49] Marshall v The State of Western Australia [2015] WASCA 156; (2015) 253 A Crim R 99.
There is no tariff for manslaughter. This has been repeatedly emphasised by this court both in respect of manslaughter offences committed when the maximum penalty for the offence was 20 years' imprisonment and since that maximum penalty was increased in 2008 to life imprisonment. That said, as was recognised in Marshall, sentences for manslaughter have tended to increase over the years.
In Western Australia there has been no sentencing case which is factually on all fours with this case. In New South Wales there have been factually analogous cases, namely Gillett v The Queen[50] and R v Harris.[51] The actual sentences imposed in those cases are of no bearing to this case having regard to the different offences and sentencing regimes in that State. However, the statements of principle enunciated in those cases are applicable to the present case.
[50] Gillett v The Queen [2006] NSWCCA 370; (2006) 166 A Crim R 419.
[51] R v Harris [2015] NSWCCA 81; (2015) 70 MVR 412.
In Gillett, McClellan CJ at CL observed that:[52]
Having regard to all of these matters his Honour concluded that the moral culpability of the appellant was “very high indeed.” In my opinion not only was this finding open to his Honour but it was undoubtedly correct. Where, as in the present case, a person takes control of a motor vehicle in circumstances where they know they represent a real risk to others and it is a risk over which they have no control, they must expect that, if the risk materialises, the penalty which will be imposed will reflect the fact that their offending had a high degree of criminality. A licence to drive a motor vehicle is a privilege which carries with it significant obligations. Those obligations require the driver to not only drive safely on the road but also to ensure that by reason of their physical health and capacity they do not endanger the lives of others. If that obligation is not met and injury or death is occasioned to others, a severe penalty will be appropriate in most cases. Every user of the road accepts a risk of injury or death. Those risks are only acceptable if other users of the road do what they can to minimise or avoid identifiable risks.
[52] Gillett [47].
In R v Harris, Adamson J said:[53]
His decision to drive was a grossly irresponsible one. His moral culpability depended, to a large extent, on whether his judgment to make such a decision was compromised by the mental impairment he suffered as a result of the brain injury he sustained when he was 18 months old. Her Honour found that the respondent’s frontal lobe disorder only had a limited effect on his judgment. That judgment should be accepted. In these circumstances the respondent’s moral culpability must be regarded as high (see R v Gillett at [47]).
[53] R v Harris [59].
In this case, the appellant was to be sentenced, not on the basis that he drove too fast or that he failed to brake before colliding with the victim's taxi; rather, his criminality derives from the combination of factors identified by the sentencing judge. His Honour characterised the offence committed by the appellant as being at the mid‑range of manslaughter offences. No challenge is made to this characterisation and, in our opinion, it is apt.
The appellant chose to drive contrary to the instruction of his doctor and in the knowledge of the incidents which had occurred on 4 August 2014 and 6 January 2015. Although the appellant had suffered no further seizures since 6 January 2015, he had not been given the all‑clear to drive. The serious danger that he posed to other road users if he had a seizure while driving was obvious. There was no imperative for him to drive on 1 March 2015. It is of little, if any, importance that he only had a short distance to drive in order to meet his friend for coffee.
The appellant's personal circumstances are favourable. He is well‑regarded by those who know him and was, notwithstanding the drug offences for which he was convicted in the District Court, taken by his Honour to be a man of good character. He is truly remorseful for his conduct and poses a low risk of reoffending. These matters, along with the plea of guilty, are mitigating.
While specific deterrence is of limited weight, given the finding that the appellant poses a low risk of reoffending, general deterrence is an important sentencing factor. It would be inappropriate to analyse the question of general deterrence to target those who suffer from epilepsy. General deterrence is appropriate in this case because of the message that needs to be given to all drivers whose capacity to control their vehicle is impaired. In such circumstances, it is the responsibility of the person not to drive. Failure to abide by that responsibility is serious conduct which, in cases such as the present, amounts to serious criminality.
Having regard to the criminality of the appellant's conduct, the need to provide general deterrence and weighing the appellant's favourable personal circumstances including his plea of guilty and having regard to the maximum penalty for manslaughter, we do not regard the sentence of 5 years' immediate imprisonment as manifestly excessive. In our opinion, it is within the ambit of an appropriate exercise of the sentencing discretion. The outcome is not unreasonable or plainly unjust. Ground 3 fails.
None of the grounds of appeal against sentence have been made out. The appeal must be dismissed.
Appeal against licence suspension - CACR 161 of 2016
The appellant alleges that the motor driver's licence disqualification was manifestly excessive. The question of leave to appeal on this ground was referred to the hearing of the appeal.
The learned sentencing judge was entitled to impose a motor driver's licence disqualification upon the appellant pursuant to s 105 SA. The maximum disqualification available to his Honour was a lifetime disqualification. The factors relevant to the imposition of the disqualification are the same factors that inform the sentencing of the appellant generally.[54]
[54] Gray v The State of Western Australia [2015] WASCA 108; (2015) 71 MVR 31 [140].
It should be borne in mind that the disqualification period commences when an offender is released from the custodial portion of a sentence of imprisonment.[55]
[55] See s 103 of the Sentencing Act.
His Honour's reasons for imposing a motor driver's licence disqualification of 10 years were brief and may be quoted in full:[56]
I next come to consider the question of disqualification of your motor vehicle driver's licence. The State has suggested that this might be an appropriate case to make a lifetime disqualification, based essentially on the concern that, given you did not comply with the prohibition that had been placed on you on this occasion, the court should have no confidence that you would comply with conditions in the future. I do not accept that proposition, for the reasons I have already mentioned, which satisfy me that you are likely to be a low risk of reoffending. However, it does seem to me that the period of disqualification should be a lengthy period. Apart from anything else, it will allow a significant period over which an assessment can be made by you and your medical advisers as to whether you have progressed to the point where the risk of you suffering a seizure while driving is so insignificant as to render you fit to drive. Whether or not that assessment is made, of course, will be a matter for others to determine at that time. So, I have determined that the appropriate period of disqualification is 10 years.
[56] Sentencing remarks [68].
It appears that his Honour took the view that the 10‑year disqualification was justified, in part, as an opportunity to allow the appellant's medical adviser to assess the future risk of the appellant suffering a seizure.
In our opinion, and with respect to his Honour, the period of disqualification of 10 years was manifestly excessive. That is, in all of the circumstances, it was unreasonable or plainly unjust. It is more than was reasonably required to achieve the sentencing objectives of proper punishment, general deterrence and the protection of the public. Moreover, we do not think that a period of 10 years (to commence after he was released from custody) would be required for the appellant's medical advisers to assess the appellant's risk of driving. This is particularly so given that the appellant's epilepsy is already of long standing, the risk that he poses is already well understood and, insofar as any further assessment may be necessary, it may be carried out during the service of the term of imprisonment.
We would set aside the disqualification period of 10 years and substitute a disqualification period of 5 years.
Orders
In relation to CACR 160 of 2016:
1.The extension of time to appeal is granted.
2.Leave to appeal on ground 1 is refused.
3.Leave to appeal on ground 2 is granted.
4.The appeal is dismissed.
In relation to CACR 161 of 2016:
1.An extension of time to appeal is granted.
2.Leave to appeal is granted.
3.The appeal is allowed.
4.The motor driver's licence disqualification of 10 years is set aside.
5.In lieu thereof the appellant is disqualified from holding or obtaining a motor driver's licence for 5 years.
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