Byrne v The State of Western Australia - [2022] WASCA 64

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   BYRNE -v- THE STATE OF WESTERN AUSTRALIA [2022] WASCA 64
CORAM:   BUSS P
MAZZA JA

HEARD:   1 APRIL 2022
DELIVERED          :   7 JUNE 2022
FILE NO/S:   CACR 187 of 2021
BETWEEN:   RYAN JAMES BYRNE
Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :   SUPREME COURT OF WESTERN AUSTRALIA
Coram:   DERRICK J
File Number            :   INS 36 of 2021

Catchwords:

Criminal law - Application for leave to appeal against sentence - Appellant convicted of one count of manslaughter, contrary to s 280(1) of the Criminal Code (WA) - Circumstances where the appellant was intoxicated and drove a motor vehicle in a reckless manner - Whether sentence of 6 years 8 months' imprisonment was manifestly excessive

Legislation:

Criminal Code (WA), s 280(1)
Sentencing Act 1995 (WA), s 9AA

Result:

Leave to appeal refused
Appeal dismissed

Category: D

Representation:

Counsel:

Appellant	:	Mr S D Freitag SC
Respondent	:	No appearance

Solicitors:

Appellant	:	Legal Aid (WA)
Respondent	:	Director of Public Prosecutions (WA)

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

Brewerton v The State of Western Australia [2017] WASCA 191; (2017) 82 MVR 176
Francis v The State of Western Australia [2019] WASCA 43
The State of Western Australia v Byrne [2021] WASCSR 51

JUDGMENT OF THE COURT:

This is an application for leave to appeal against sentence.
On 25 October 2021, the appellant was convicted on his plea of guilty of one count of unlawfully killing his father, Mr Dwaine Edward Byrne, contrary to s 280(1) of the Criminal Code (WA). The maximum penalty for this offence is life imprisonment. The appellant was sentenced by Derrick J to 6 years 8 months' imprisonment with eligibility for parole, to commence on 25 October 2021. The appellant was also disqualified from holding or obtaining a driver's licence for 5 years.
The appellant seeks leave to appeal on the sole ground that the term of imprisonment was manifestly excessive. There is no challenge to the disqualification. The appeal was filed approximately one month out of time. The delay has been adequately explained. We would grant an extension of time.

The facts

There was no dispute before the sentencing judge as to the facts of the offending and they are not challenged in this court. They are comprehensively described in his Honour's sentencing remarks.[1] They may be summarised as follows.
[1] The State of Western Australia v Byrne [2021] WASCSR 51.
At the time of the offence, the appellant was 22 years old. His father, the deceased, was 52 years old.
Tuesday, 3 November 2020, was Melbourne Cup Day. The deceased was with friends at the Kwinana Local Hotel. He sent a text message to the appellant, asking him to join them at the hotel. The appellant agreed to do so. Before leaving for the hotel, the appellant drank some beer and smoked some cannabis. He then drove to the hotel in his Toyota HiLux 4 x 4 utility. There, he and the deceased drank alcohol. Both of them had too much to drink. While at the hotel, the appellant and the deceased got into an argument, during which the appellant behaved aggressively towards the deceased.
At about 2.30 pm, the appellant and the deceased left the hotel. The appellant was angry, upset and crying. The deceased was calm. They walked together to the HiLux, which was parked at the side of the hotel. Between the two of them, a decision was made for the appellant to drive the vehicle, as he was less intoxicated than the deceased. The appellant got into the driver's seat. The deceased got into the rear passenger seat, but did not put on his seatbelt.
At the time the appellant got into the HiLux, and at all relevant times, he was under the influence of alcohol and illicit drugs to such an extent as to be incapable of having proper control of the vehicle. An analysis of a sample of blood taken later in the day revealed that the appellant had a blood alcohol reading of 0.142%, an amphetamine level of 0.02 mg/l and a tetrahydrocannabinol level of 7.9 ug/l. The deceased had a blood alcohol level of 0.26% on his later admission to hospital.
The movement of the HiLux was recorded by closed‑circuit television cameras at various locations, including three separate locations on Summerton Road, Calista. In addition, footage of the HiLux was obtained from a dashcam device that was mounted on a vehicle travelling along Darius Drive, Kwinana. The footage shows that at 2.39 pm, the HiLux reversed out of a parking bay at the hotel. The vehicle exited the carpark and turned right onto Skerne Street, Kwinana. The appellant was driving erratically and at speed. The tyres of the HiLux were squealing.
At 2.40 pm, the HiLux turned left into Robbos Way, Kwinana. The vehicle was driven along this road at speed. At the end of Robbos Way, the appellant turned left onto Darius Drive. As he did so, the HiLux ran wide and encroached onto the wrong side of the road into the path of an oncoming vehicle. The appellant made a sharp left-hand turn back to the correct side of the road to avoid a collision with this vehicle. The appellant overcorrected, which resulted in the HiLux mounting the kerb before returning to the road.
The appellant continued driving along Darius Drive towards its intersection with Gilmore Avenue. There, he executed a right-hand turn into Gilmore Avenue, driving partly over a traffic island. The appellant then drove north along Gilmore Avenue before turning left into Summerton Road. Summerton Road runs east to west. The road is bordered, on either side, by residential properties. The speed limit is 50 km per hour. It was a sunny day and the road was dry.
The appellant drove west along Summerton Road. Approximately 600 m from the intersection at Gilmore Avenue, the appellant was near a house situated at 40 Summerton Road. The CCTV footage taken from this house showed that the appellant was driving at excessive speed, but he was on the correct side of the road. However, as the HiLux drove in the vicinity of 38 Summerton Road, and while still driving at excessive speed, the vehicle crossed onto the wrong side of the road. At this point, Summerton Road rises to a crest before sloping down. Accordingly, had there been another driver travelling in the opposite direction along Summerton Road, they would not have been able to see the appellant's vehicle until they reached the crest of the hill.
The appellant continued down Summerton Road, past a CCTV camera at 15 Summerton Road. The HiLux was on the wrong side of the road, driving towards two oncoming vehicles at a speed estimated to be 115 km per hour. As the HiLux approached the first of the two oncoming vehicles, the appellant steered hard towards the correct side of the road, but did not slow down. This caused the HiLux to slide across the driveways and grass verges of several properties, at which point the appellant lost control of the vehicle. The HiLux ultimately tipped and rolled several times before coming to rest on its roof in the middle of the intersection of Beacham Crescent and Summerton Road. As the HiLux rolled, the deceased was thrown out of a window of the vehicle and onto the road.
The first call to emergency services was made at 2.43 pm. A short time later two police officers arrived at the scene. It was obvious that the deceased was badly injured. The appellant identified himself to the police as the driver of the Hilux and told the police that the injured man on the road was his father. The appellant said to his father, 'I love you it's my fucking fault man'. The appellant was arrested at the scene.
At 5.18 pm, a sample of blood was taken from the appellant which revealed, on later analysis, the findings referred to at [8] above.
The deceased was taken by ambulance to Royal Perth Hospital. He was diagnosed with serious head and chest injuries. At 11.15 am on 7 November 2021, the deceased died from those injuries.
The HiLux was later examined by a vehicle investigator. This examination did not reveal any defects with the HiLux which would have contributed to the appellant's loss of control of the vehicle.
On 10 February 2021, the appellant was charged with the offence of manslaughter. He declined, as was his right, to participate in an electronic record of interview.

The appellant's personal circumstances

At the time he was sentenced, the appellant was 23 years old. He is single and does not have children. He is one of five children born to the deceased and the deceased's former wife. The appellant and his siblings were well cared for by his parents, but the marriage was not a particularly happy one. There were constant arguments and the deceased regularly consumed alcohol to excess.
The deceased and the appellant's mother separated when he was 15 years old. The separation was acrimonious, and the appellant found the separation hard to deal with. Later, both the deceased and the appellant's mother re‑partnered.
The appellant and the deceased had a very close relationship. The appellant also has a close relationship with his mother and siblings. It is clear from the character references that were tendered to the sentencing judge that they remain supportive of him and are concerned about his welfare.
The appellant left school at the end of year 10. He then completed a diploma of civil engineering through TAFE. While studying at TAFE, the appellant worked for the deceased as a labourer. In around 2019, the deceased's company was liquidated. The appellant started his own concrete services business and employed his sister and brother. The deceased was involved in this business. Up until the commission of the offence, the business was successful. However, after the commission of the offence, due to the appellant's mental health issues and having to deal with the deceased's estate, the appellant worked less.
The appellant admits that from the age of 18 years until the commission of the offence he was a heavy drinker and would regularly binge drink. He often drank with the deceased. After the offence, he significantly reduced his alcohol consumption. The appellant was exposed to the deceased's excessive drinking in his childhood and adolescent years, as a result of which excessive alcohol use was normalised for him.
The appellant started using cannabis at the age of 17 years. Between the ages of 19 and 22 years, he used cannabis on a daily basis. Since the offence, he has ceased using this drug. The appellant denied using methylamphetamine. He attributed the small level of methylamphetamine found in his system at the time of the offence to him smoking cannabis which, unknown to him, was laced with methylamphetamine. This was disputed by the State in the sentencing proceedings, but his Honour found that he did not need to resolve the question.
The appellant has experienced feelings of immense grief, loss and symptoms of depression, anxiety and post‑traumatic stress disorder since the crash. A psychological report tendered to his Honour made what he described in his sentencing remarks as 'the indisputable point' that the commission of the offence and the resultant death of the deceased is likely to affect the appellant for the remainder of his life, regardless of therapeutic intervention. The psychologist expressed the opinion that, if he was imprisoned, the appellant's mental health was likely to significantly deteriorate, even with access to treatment services in custody.
The appellant has an insignificant and, for present purposes, irrelevant criminal history as an adult. He was treated by his Honour as a first offender.

The victim impact statement

His Honour received a victim impact statement from the deceased's present partner. The deceased's death has had a profoundly adverse impact upon her. She has struggled with her grief and has found it difficult to return to and give her best at work. Her motivation and interest in playing golf, the pastime she shared with the deceased, has dissipated.

The sentencing remarks

The sentencing judge identified the following aggravating factors:
(1)At the time the appellant got into the HiLux and drove from the hotel carpark he was under the influence of alcohol and drugs to such an extent that he was incapable of properly controlling the vehicle.
(2)At the time the appellant got into the HiLux and subsequently drove, he knew that he was intoxicated and should not have driven and that, by doing so, he exposed himself and others to risk of injury.
(3)The appellant drove the HiLux for a period of approximately three minutes over a distance of approximately 1.4 km at excessive speed and in a reckless manner. The speed at which the appellant drove in the moments before he lost control of the HiLux was, given the speed limit and the residential nature of the road, grossly excessive.
(4)The dangerous and reckless manner of the appellant's driving endangered not only the deceased, but also other road users and people in the general vicinity. His Honour observed that the manner in which the appellant drove made it 'almost inevitable' that he would eventually lose control of the vehicle and crash it. In his Honour's view, the appellant was fortunate not to harm other persons in addition to the deceased.
(5)The offences had a profoundly adverse impact upon the deceased's new partner.
His Honour observed that the offence demonstrated a high degree of culpability or moral blameworthiness. He added:[2]
In my view your conduct in committing the offence did, as the State submits, fall between the mid to high end of the range of seriousness for conduct capable of constituting what may loosely be described as a motor vehicle manslaughter.
[2] Byrne [58].
His Honour made several observations about the facts and circumstances of the case. He said that there was no imperative for the appellant to drive home in an intoxicated state. His Honour said that the appellant and the deceased could have travelled home in other ways. His Honour stated that the fact that the deceased was not wearing a seatbelt was not a mitigating factor, adding, that as the appellant was the driver of the vehicle, he had an obligation to ensure that the deceased was wearing his seatbelt. His Honour observed that while the appellant's level of intoxication was likely to have contributed to his bad decision to drive from the hotel, this did not reduce the seriousness of his conduct.
His Honour identified the following mitigating factors:
(1)The appellant was a relatively young man at the time of the commission of the offence.
(2)He has the strong support of his mother and siblings. His Honour noted that neither his mother nor siblings wished the appellant to be imprisoned for the offence. His Honour said that the wishes of the appellant's mother and siblings were not irrelevant to sentence, but did not carry significant weight.
(3)Since the commission of the offence, the appellant has taken steps to address his substance abuse problem.
(4)The appellant has been significantly adversely affected, emotionally and psychologically, as a result of the commission of the offence and the resulting death of his father, and this will continue to have an effect upon him. His Honour said that this was a mitigating factor of limited weight and could not result in the imposition of a sentence which fails to properly reflect the appellant's culpability.
(5)The appellant's incarceration is likely to cause a deterioration in his mental health.
(6)The appellant is, for all intents and purposes, a first offender.
(7)The appellant has accepted responsibility for his actions and is genuinely remorseful.
(8)The character references show that the appellant has 'many good characteristics'.
(9)The appellant's risk of reoffending is low and personal deterrence is of no real relevance to the case.
(10)The appellant entered a plea of guilty at an early stage in the proceedings, although not at the first reasonable opportunity. His Honour gave a deduction of 20%, pursuant to s 9AA of the Sentencing Act 1995 (WA).
In imposing the sentence, his Honour said that the only appropriate sentence was a term of immediate imprisonment. His Honour noted (correctly) that there was no tariff for the offence of manslaughter and that each case had to be decided on its own facts, bearing in mind that sentences for manslaughter must reflect the value which the legislature has placed on human life.
His Honour had regard to the decision of this court in Francis v The State of Western Australia.[3] His Honour distinguished that case from the present case on a number of grounds, including that the recklessness of the driving in Francis was not as serious as the appellant's driving and that the offender in Francis was not under the influence of alcohol or drugs.
[3] Francis v The State of Western Australia [2019] WASCA 43.
In arriving at an appropriate sentence his Honour acknowledged that the appellant would, for the rest of his life, have to live with the consequences of his conduct and that this would not be an easy thing to do. His Honour expressly recognised this as a significant form of punishment which he took into account. His Honour also emphasised the need for general deterrence. He said:[4]
In addition, a message needs to be sent out to the community that people who with selfish disregard for other road users get into their cars in an intoxicated and agitated state and then, as a result of their inability to properly control their car, tragically cause the death of another person, will be dealt with severely.
[4] Byrne [132].

Appellate sentencing principles

The following principles are well established. Sentencing is a discretionary exercise. An appellate court can intervene only if the appellant demonstrates either an express or implied material error. In the present case, the appellant does not identify any express error. Implied error arises where the end result is so unreasonable or unjust that the court must conclude that a substantial wrong has occurred. Thus, 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.
In order to determine whether a sentence of an individual offence is manifestly excessive or inadequate, the offence should be viewed in light of the maximum sentence prescribed by 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.
The range of sentences customarily imposed for a crime does not establish the range of a sound exercise of the sentencing discretion. Sentences customarily imposed in comparable cases provide a yardstick, or reference point, for ensuring broad consistency in sentencing, bearing in mind the scope for significant variations in relevant sentencing factors and that there is no single correct sentence. What are important are the unifying principles which sentences imposed in comparable cases reveal and reflect.

The appellant's submissions

The appellant does not dispute the seriousness of the offence committed by him. The focus of the appellant's submissions is on the combined effect of the mitigating factors found by the sentencing judge. It was submitted that, having regard to these factors, the sentence that was imposed was manifestly excessive.
The appellant accepted that there is no directly comparable case, but cited Francis and Brewerton v The State of Western Australia[5] as cases which, it was said, may assist this court.
[5] Brewerton v The State of Western Australia [2017] WASCA 191; (2017) 82 MVR 176.

Disposition

The maximum penalty for manslaughter is, as we have already stated, life imprisonment. The maximum penalty was increased from 20 years, with effect from 17 March 2008. It is conceded by the appellant that the range of sentences for charges of manslaughter have increased since the maximum penalty was raised to life imprisonment.
There is no sentencing tariff for manslaughter because of the great variation that is possible in the circumstances of the offending and the offenders. It is quintessentially an offence where each case must be decided on its own facts.
Neither Francis nor Brewerton point to the sentence in the present case being manifestly excessive. It is unnecessary to analyse these cases, but there are features in each of them which distinguish the present case from them. In particular, the nature of the driving in each case was not as serious as the appellant's driving.
In the present case, having regard to the aggravating features identified by the sentencing judge, there can be no doubt that the offence involved a high degree of criminality. The appellant deliberately drove his vehicle knowing that he was intoxicated by alcohol and cannabis. He drove in suburban streets in broad daylight at excessive speed and on the wrong side of the road on several occasions. At one point, prior to losing control of the HiLux, the appellant drove on the wrong side of the road at the crest of a hill. Had there been any oncoming traffic, the opportunity to avoid a collision would have been very limited. As the sentencing judge found, the appellant's loss of control of the vehicle was, given the manner of driving, almost inevitable and it is extremely fortunate that no‑one else, apart from the deceased, was injured. The potential for further injury and death was great.
The mitigating factors identified by his Honour were, in combination, significant. However, the tragic consequences of the appellant's driving, including the death of his father, while tending to moderate the sentence on the basis that the appellant will suffer the guilt associated with his actions for the rest of his life, cannot override the necessity to ensure that the sentence imposed properly reflects the criminality of his offending, having regard to all of the relevant facts and circumstances. The sentence in the present case rightly emphasised the need for general deterrence and, thus, matters personal to the appellant were of less weight.
Having regard to all of the relevant facts and circumstances, it is not, in our opinion, reasonably arguable that the sentence imposed by his Honour was manifestly excessive. In our opinion, it was a proper reflection of those facts and circumstances and was within the range of a sound exercise of the sentencing discretion. Leave to appeal should be refused and the appeal should be dismissed.

Orders

The orders we would make are as follows:
(1)An extension of time is granted.
(2)Leave to appeal is refused.
(3)The appeal is dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
RK
Research Associate to the Honourable Justice Murphy and the Honourable Justice Mazza
7 JUNE 2022