Drage v The State of Western Australia
[2015] WASCA 145
•28 JULY 2015
DRAGE -v- THE STATE OF WESTERN AUSTRALIA [2015] WASCA 145
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WASCA 145 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:128/2014 | 21 APRIL 2015 | |
| Coram: | MARTIN CJ MAZZA JA HALL J | 28/07/15 | |
| 20 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal granted on ground 3 Leave to appeal refused on grounds 2, 4, 6, 7 and 9 Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | KEVIN JAMES DRAGE THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law Dangerous driving occasioning grievous bodily harm Appeal against sentence Appeal dismissed |
Legislation: | Road Traffic Act 1974 (WA), s 59(1), s 59A(1) Sentencing Act 1995 (WA), s 9AA, s 32 |
Case References: | Abeyakoon v Brown [2011] WASCA 63; (2011) 211 A Crim R 338 Abraham v The State of Western Australia [2014] WASCA 151 Beins v The State of Western Australia [No 2] [2014] WASCA 54 Cartwright v The State of Western Australia [2010] WASCA 4 Eves v The State of Western Australia [2008] WASCA 7; (2008) 49 MVR 259 Forkin v The State of Western Australia [2013] WASCA 51 GJT v The State of Western Australia [2011] WASCA 263 Gray v The State of Western Australia [2015] WASCA 108 Libri v The State of Western Australia [2013] WASCA 113 Longbottom v The State of Western Australia [2008] WASCA 203; (2008) 38 WAR 396 Thomas v The State of Western Australia [2014] WASCA 202 Thomas v The State of Western Australia [2015] HCA Trans 68 (13 March 2015) Timbrell v The State of Western Australia [No 2] [2013] WASCA 269 Wilson v The State of Western Australia [2010] WASCA 82 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : DRAGE -v- THE STATE OF WESTERN AUSTRALIA [2015] WASCA 145 CORAM : MARTIN CJ
- MAZZA JA
HALL J
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : BIRMINGHAM DCJ
File No : IND BRO 7 of 2013
Catchwords:
Criminal law - Dangerous driving occasioning grievous bodily harm - Appeal against sentence - Appeal dismissed
Legislation:
Road Traffic Act 1974 (WA), s 59(1), s 59A(1)
Sentencing Act 1995 (WA), s 9AA, s 32
Result:
Leave to appeal granted on ground 3
Leave to appeal refused on grounds 2, 4, 6, 7 and 9
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : Mr T F Percy QC & Mr M L Bycroft
Respondent : Mr J A Scholz
Solicitors:
Appellant : Kimberley & Pilbara Lawyers
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Abeyakoon v Brown [2011] WASCA 63; (2011) 211 A Crim R 338
Abraham v The State of Western Australia [2014] WASCA 151
Beins v The State of Western Australia [No 2] [2014] WASCA 54
Cartwright v The State of Western Australia [2010] WASCA 4
Eves v The State of Western Australia [2008] WASCA 7; (2008) 49 MVR 259
Forkin v The State of Western Australia [2013] WASCA 51
GJT v The State of Western Australia [2011] WASCA 263
Gray v The State of Western Australia [2015] WASCA 108
Libri v The State of Western Australia [2013] WASCA 113
Longbottom v The State of Western Australia [2008] WASCA 203; (2008) 38 WAR 396
Thomas v The State of Western Australia [2014] WASCA 202
Thomas v The State of Western Australia [2015] HCA Trans 68 (13 March 2015)
Timbrell v The State of Western Australia [No 2] [2013] WASCA 269
Wilson v The State of Western Australia [2010] WASCA 82
1 MARTIN CJ: In this appeal against sentence, eight grounds of appeal were pursued. Leave to appeal had previously been granted in respect of two of those grounds - namely grounds 1 and 5. For the reasons given by Mazza JA, with which I agree, leave to appeal should be granted in respect of ground 3 and refused in respect of grounds 2, 4, 6, 7 and 9. Also for the reasons given by Mazza JA, grounds 1, 3 and 5, and the appeal, should be dismissed.
2 MAZZA JA: This is an appeal against sentence. The appellant was charged in the District Court on indictment with one count of dangerous driving occasioning grievous bodily harm contrary to s 59(1) of the Road Traffic Act 1974 (WA) (RTA) and, by a notice pursuant to s 32 of the Sentencing Act 1995 (WA), with two counts of dangerous driving occasioning bodily harm contrary to s 59A(1) of the RTA. All of these offences arose out of one incident which occurred late on the evening of 20 October 2012, on the Gantheaume Point Road in Broome.
3 On 10 June 2014, the appellant pleaded guilty to all of the charges. On 12 June 2014, the appellant was sentenced as follows:
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4 Thus the total effective sentence imposed upon the appellant was 2 years' immediate imprisonment with eligibility for parole. His Honour ordered that this sentence commence on 12 June 2014. The appellant was also disqualified from holding or obtaining a driver's licence for a total period of 3 years.
5 The appellant challenges the sentences of imprisonment and the disqualification period. His appellant's case sets out nine grounds of appeal. At the hearing before this court, senior counsel for the appellant abandoned one of the grounds, ground 8 (appeal ts 2).
6 The grounds of appeal allege a combination of express and implied errors on the part of the learned sentencing judge, with the central point in the appeal being that his Honour erred in not suspending the term of imprisonment.
7 For the reasons which follow, I am of the opinion that none of the grounds of appeal have been made out and that the appeal should be dismissed.
The facts
8 The learned sentencing judge summarised the facts of the offending as follows:
The conduct constituting these offences has been described by the State Prosecutor and those facts accepted by you. I adopt what has been said by the prosecutor and incorporate his description of the facts into these remarks. In summary, the facts are that on Saturday, 20 October 2012 between 11 pm and 11.30 pm you were at Gantheaume Point at the beach access ramp. You have attended the beach at the request of another to tow a vehicle that was stuck on the beach and, no doubt, at risk of being affected by an incoming tide.
When leaving the beach, up the access road, you accelerated your vehicle causing the wheels to spin when you were then in the vicinity of the persons who were later injured by your vehicle and others, who were then walking up the ramp off the beach. They had been at a party at that location. You caused sand and debris to be showered onto them. That you drove in such a manner, it would seem, would have hardly been necessary.
In response to your driving, a member of the group threw a can of beer at your vehicle striking it. You continued to the top of the access road, at the junction of the sealed road going to Gantheaume Point and stopped your vehicle to unlock the four-wheel drive hubs on the front wheels. You then returned, walked down to remonstrate them for throwing the can - remonstrate with them. They, in turn, remonstrated with you about your manner of driving and indicated that it had resulted in one of the girls present getting sand thrown into her eyes. It was obviously apparent to you that they were affected by alcohol.
After the altercation, you returned to your vehicle. Rather than continue on your journey back to Broome, you turned in the opposite direction and drove your white Toyota Land Cruiser in a position facing Gubians Road, and parked it behind a taxi that was effectively to the right of the boat ramp and you parked it behind the taxi prior to the taxi leaving.
At the time, the victim in the complaint, Mr David Immanuel Lange and others had arrived at the top of the access road. Lange was standing in the middle of the road waving his arms at you. One witness described him as playing chicken and seemingly goading you to drive at him. You then drove your vehicle towards him from what was your stationary position, approximately 60 metres away, accelerating to approximately 40 kilometres an hour.
As your vehicle approached Lange, two other persons, namely Seitz and Streit, who were standing with a fourth person, Mr Rutz, on the beach access road observed what was happening. As you moved closer it was apparent to them that you were going to strike Lange with your vehicle. They moved towards Lange and attempted to remove him from the road. Whilst this occurred, a member of the group threw a beer can at your vehicle striking the bottom middle of the windscreen causing you to duck.
As a result of the speed and the direction that the vehicle was travelling, you drove into the victims, Lange, Streit and Seitz, causing them to make contact with the bullbar of your vehicle which, in turn caused all three of them to be thrown backwards. At the time that you approached them, you did not slow your vehicle or take any steps to avoid those on the road or on the road verge in the immediate vicinity of your vehicle. The road where this incident took place is flat and straight with no obstructions. It's some 7.15 metres wide at the shoulder allowing for further room for a vehicle to move around the persons on the street or the road with safety.
By your plea, you accept that your manner of driving in the circumstances was dangerous to members of the public and other road users, including pedestrians within the vicinity. You didn't stop. You continued driving towards Broome. Whilst driving towards Broome, you contacted the Broome police to seek assistance for the persons you had then struck with your vehicle. Your explanation proffered for not stopping was said by your counsel to stem from strained relations between Broome residents and backpackers at the time of - as a result of some unrelated incidents.
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As a result of being struck by the vehicle, Lange suffered an open compound fracture to his left leg. Lange was later flown by Royal Flying - to the Royal Perth Hospital where he sustained specialist medical treatment for his injury. Seitz suffered multiple skin lacerations and Streit suffered grazes and soft tissue injury to his right leg. You spoke to the police that night. The explanation you proffered to Constable Baker was that as you left the beach, 'Some kids threw stuff at your car, jumped out in front of me and I hit one of them. I drove off and called you guys and then waited at the turn-off for you to arrive.'
You continued to indicate that it was that as you left the dirt road, there were 10 people walking in the middle of road. You had to drive slowly around them and as you passed they threw beer cans to your car and started shouting and swearing. You parked around the corner for a minute to cool off and then went to drive away. As you drove away, some people walked around the corner of the junction of the main road and:
One of them was standing in the main road waving at me. He was on the bitumen part of the road. Some others threw more cans at my car. I ducked down to shield myself just in case one went through the windscreen. I shield (indistinct) - driving to the end of the road as there were so many of them I was worried.
It is apparent that your explanation to the police on the night significantly minimised what is, in fact, your admitted conduct. You make no mention of the extent to which the altercation and incident with the persons on the beach effectively commenced as a result of you spinning the wheels as you passed them. You were the person that were responsible for initiating this incident. It was your conduct (ts 69 - 72).
9 Fortunately, each of the victims has made a full recovery from their injuries (ts 73).
The appellant's antecedents
10 At the date of sentence, the appellant was 50 years of age. At the time of the offences, he was a self-employed truck driver and had been for some years. He has a dependent child aged 12, and three adult children. He enjoys good physical health (ts 73).
11 The appellant has a lengthy criminal history, commencing as an adult in 1982. Up until 1998, he offended on a regular basis. His offences were mostly drug and traffic offences, but there were also convictions for offences involving violence. Since 1998, there have been few convictions. Save for a demerit point suspension for traffic infringements in 2003, none of these are relevant for present purposes. References tendered on the appellant's behalf showed that he enjoyed a good reputation within the local community in Broome and that he regularly assisted the police in towing vehicles.
The sentencing remarks
12 His Honour said that the appellant's driving did not involve momentary inattention or mere carelessness (ts 72). His Honour considered the appellant's driving to be 'a serious departure from the standard of driving reasonably expected of drivers of motor vehicles on public roads' (ts 73). He said that the appellant's driving 'fell well below the standard expected of other road users' (ts 73). He described the appellant's culpability in this way:
This was a case of driving towards persons obviously affected by alcohol, whose behaviour was unpredictable. From the conduct of Lange, it was obvious that there was a real risk of colliding with at least one of the group unless extreme care was taken. You moved from a stationary position and accelerated to a speed of approximately 40 km an hour to approach the group.
You didn't seek to take any evasive action. You didn't seek to brake or slow your vehicle. There was ample time and room to avoid this incident and collision. When the can struck your windscreen as you approached Lange you didn't slow down. The fact that you ducked didn't alter the circumstances as they existed immediately prior to the can being thrown. You were driving at an accelerating rate towards persons on the road and road verge (ts 72).
13 Later in the sentencing remarks, his Honour said that, while alcohol was not a factor, and although, in an objective sense, the speed of the appellant's vehicle was modest, the speed was, in the circumstances, excessive (ts 75).
14 His Honour acknowledged that the appellant did not intend to cause any injury, but the manner of the appellant's driving exhibited 'a callous or reckless disregard for the safety and well being of other persons within the vicinity of the road' (ts 75).
15 His Honour gave a discount pursuant to s 9AA of the Sentencing Act of 20% against the backdrop that the prosecutor accepted that the pleas of guilty were entered at the first reasonable opportunity. However, his Honour commented that the pleas were made 'in the face of a very strong case against [the appellant]' (ts 74).
16 In addition to the pleas of guilty and the appellant's recent good conduct, his Honour acknowledged that the appellant had expressed remorse.
17 The learned sentencing judge expressed the view that the seriousness of the offending was such that the only appropriate sentence was a term of imprisonment (ts 75). With respect to the offences in the s 32 notice, he acknowledged that they arose out of the same incident as the indictable offence (ts 76). He had express regard for both limbs of the totality principle (ts 77). He considered the question of whether the terms of imprisonment could be suspended. His Honour took the view that, notwithstanding the mitigating factors, the offences were too serious and the sentences of imprisonment should be served immediately (ts 78).
Grounds of appeal
18 As I have said, the grounds of appeal being pursued by the appellant allege a mixture of express and implied error. Grounds 1, 3 and 5 allege, in effect, that the individual sentences imposed upon the appellant were manifestly excessive in that the wrong kind of sentence was imposed. Specifically, it is alleged that suspended terms of imprisonment should have been ordered. Ground 6, in effect, alleges that the total effective sentence infringed the first limb of the totality principle. Ground 4 alleges that the learned sentencing judge erred in not giving the appellant the maximum allowable discount of 25% pursuant to s 9AA of the Sentencing Act. Grounds 2 and 7 allege certain errors of fact which I will expand upon later in these reasons. Ground 9 alleges that the 3-year motor driver's licence disqualification period was excessive.
19 Leave to appeal has been granted in respect of grounds 1 and 5. The question of leave with respect to all of the other grounds was referred to the hearing of the appeal.
The general principles applicable to this appeal
20 The general principles applicable to appeals against sentence were accurately summarised by McLure P and Owen JA in Wilson v The State of Western Australia [2010] WASCA 82 [2] in these terms:
The relevant principles on which an appellate court operates are dictated by the Criminal Appeals Act 2004 (WA) and by previous decisions of the High Court and of this court that we are bound to follow or that represent persuasive authority. Those principles include the following.
1. The imposition of a sentence involves the exercise of a discretion. An appellate court can only intervene if the appellant demonstrates that the judge erred in exercising the discretion in one of two ways. The first is called express error and it involves acting on a wrong principle, for example, by mistaking the law, mistaking the facts, taking into account an irrelevant matter or failing to take into account a relevant consideration. The second is referred to as implied or inferred error. It arises where, although it is not possible to discover the exact nature of the error, the end result is so unreasonable or unjust that the court must conclude that a substantial wrong has occurred: House v The King (1936) 55 CLR 499, 505. In most instances a challenge based on implied error will involve the contention that an individual sentence is manifestly excessive (or inadequate) and (or) that the total effective term imposed for all charges offends the totality principle.
2. It follows that the appeal court will not intervene simply because the members of the court, had they been sentencing the offender at the original hearing, might have imposed a different sentence: House, 505.
3. Even if error is demonstrated the appellate court can intervene only if it is satisfied that a different sentence should have been imposed at the original hearing: Criminal Appeals Act s 31(4)(a).
4. An appellant must obtain leave to appeal on each ground that she or he wishes to advance in support of the appeal and the court must not grant leave unless it is satisfied that the ground has a reasonable prospect of succeeding: Criminal Appeals Act s 27(1) and (2).
5. To have a reasonable prospect of succeeding, a ground must have a rational and logical prospect of succeeding, or a real prospect of success: Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [25] - [61], especially [56].
21 I will deal first with the grounds that allege express error, then deal with those grounds which allege implied error.
Ground 2 - the appellant's prior behaviour
22 Ground 2 alleges that the learned sentencing judge found, as a fact, that the appellant deliberately had spun the wheels of his vehicle when passing the group of people that included the victims as he left the beach shortly prior to the collision. It is further alleged that his Honour relied on this factor 'as a significantly aggravating circumstance of the offending' (AB page 11).
23 The appellant sought to support this ground by pointing to several portions of his Honour's sentencing remarks, being:
When leaving the beach, up the access road, you accelerated your vehicle causing the wheels to spin when you were then in the vicinity of the persons who were later injured by your vehicle and others, who were then walking up the ramp off the beach. They had been at a party at that location. You caused sand and debris to be showered onto them. That you drove in such a manner, it would seem, would have hardly been necessary (ts 69).
24 Then:
The entire unfortunate incident was a direct result of your manner of driving as you left the beach in spinning the wheels and showering those present with sand. That they reacted as they did is unsurprising. That you sought to confront them and remonstrate with them at their unsurprising reaction is a reflection on you, not them (ts 71).
25 Finally, his Honour, in the context of observing that the appellant significantly minimised his conduct when he spoke to police on the night in question, said:
You make no mention [to the police] of the extent to which the altercation and incident with the persons on the beach effectively commenced as a result of you spinning the wheels as you passed them. You were the person that were [sic] responsible for initiating this incident. It was your conduct (ts 71 - 72).
26 It is to be immediately noted, as senior counsel for the appellant conceded in argument before this court (appeal ts 12), that his Honour did not make an express finding that the appellant deliberately spun his wheels as he left the beach.
27 Whether or not it may be inferred that his Honour found that the appellant deliberately spun his wheels on the beach, it cannot reasonably be said that his Honour relied on this event 'as a significantly aggravating factor'. When the relevant portions of the transcript are read as a whole, it is clear that the effect of what his Honour said was that the appellant, by unnecessarily showering the victims' group with sand on the beach, put into train the sequence of events which led to the commission of the offences. Further, it was within the appellant's power at any time prior to the collision to have desisted in his confrontation with the victims' group, but he did not do so. On an objective analysis of the facts, none of these propositions were controversial.
28 Ground 2 is without merit. It has no reasonable prospect of succeeding.
Ground 4 - discount for the pleas of guilty
29 The gravamen of this ground of appeal is that, in light of the State's concession that the pleas of guilty were entered at the first reasonable opportunity, his Honour erred in not giving the appellant the maximum 25% discount pursuant to s 9AA of the Sentencing Act.
30 The appellant was originally charged with the more serious offence of doing grievous bodily harm to Mr Lange. An indictment in these terms was filed, and the matter was set down for trial. On or about 10 October 2014 (which was either the day the trial was due to commence or the day before it was due to commence), the prosecutor indicated to senior counsel for the appellant that the State would be prepared to accept a plea of guilty to the charge of dangerous driving occasioning grievous bodily harm (an offence which carries a lesser maximum penalty), rather than the offence of doing grievous bodily harm. After taking the advice of senior counsel, and providing counsel with written instructions, the appellant pleaded guilty to the lesser charge. The original charge was discontinued.
31 In his sentencing submissions, the prosecutor conceded that the appellant entered all of his pleas at the first reasonable opportunity. This concession may have been generous considering that the offences ultimately dealt with under s 32 of the Sentencing Act had not changed.
32 Be that as it may, his Honour accepted that all of the pleas of guilty had been entered at the first reasonable opportunity, but he did not give a 25% discount for the pleas of guilty (the maximum available pursuant to s 9AA of the Sentencing Act). Instead, he gave a discount of 20% on the basis that the pleas were made 'in the face of a very strong case against [the appellant]' (ts 74).
33 Section 9AA of the Sentencing Act provides that any discount for a plea of guilty must not exceed 25%. A discount of 25% must not be allowed unless the offender pleaded guilty or indicated that he or she would plead guilty at 'the first reasonable opportunity'. The discount under s 9AA is to recognise 'the benefits to the State and to any victim of or witness to the offence resulting from the plea': see Forkin v The State of Western Australia [2013] WASCA 51 [21].
34 The appellant's contention is that, having entered his pleas at the first reasonable opportunity, the learned sentencing judge was obliged to allow a discount of 25% under s 9AA of the Sentencing Act. A similar submission was put to this court in Thomas v The State of Western Australia [2014] WASCA 202. In that case, the court held (at [18]) that the submission was misconceived. A plea of guilty at the first reasonable opportunity enlivens the power to grant the maximum discount. Once that power is enlivened, the sentencing judge has a discretion as to the amount of the discount, which is informed by the nature, character and extent of the benefits to the State and to any victim of or witness to the offence.1
35 In Beins v The State of Western Australia [No 2] [2014] WASCA 54 and Abraham v The State of Western Australia [2014] WASCA 151, this court held that the strength of the prosecution case is a matter relevant in considering the extent of any discount to be given under s 9AA of the Sentencing Act for a guilty plea. The strength of the prosecution case is relevant to the extent of the benefits received or derived by the State as a consequence of the guilty plea: see Abraham [58].
36 In the present case, it was well open for his Honour, on the facts that he found, to conclude that the case against the appellant was 'very strong'. His Honour's decision to impose a discount of 20% reflected a proper exercise of the discretion given to him under s 9AA.
37 Ground 4 is without merit. It has no reasonable prospect of succeeding.
Ground 7 - alleged failure to take into account an 'intervening' fact
38 This ground alleges that the learned sentencing judge failed to place any mitigating weight on the fact that, just before the collision, a member of the victims' group threw a can of beer which struck the windscreen of the appellant's vehicle, causing him to duck. The appellant submitted that, by 'necessary implication', the impact of the beer can to the windscreen caused the appellant to lose some degree of control immediately prior to the collision (AB page 26). Consequently, it is said, the appellant's culpability for the offences was reduced.
39 It may be accepted from the sentencing remarks that his Honour did not consider the throwing of the beer can at the appellant's vehicle to be a mitigating factor. The question raised by ground 7 was whether his Honour erred in this regard. In my opinion, he did not err.
40 The beer can was thrown at the appellant's vehicle a very short time before it collided with the victims. By this point, the appellant was already driving dangerously. He was, as his Honour found, driving at an accelerating rate towards the persons on the road. It was apparent that they (the victims) were affected by alcohol. While the impact of the beer can caused the appellant to duck, there is nothing to indicate that it contributed in any way to the collision with the victims. There was no evidence that the impact caused any loss of control on the appellant's part. There is nothing to indicate that the appellant would have taken evasive action were it not for the beer can striking the vehicle. Contrary to the appellant's argument, there is no 'necessary implication' that the appellant lost some degree of control of his vehicle, thereby reducing his culpability for the offences.
41 Proposed ground 7 has no merit. It has no reasonable prospect of succeeding.
Grounds 1, 3 and 5 - should the sentences have been suspended?
42 The relevant principles relating to suspension of a term of imprisonment were set out in Cartwright v The State of Western Australia [2010] WASCA 4 [8] - [10], as follows:
Section 39(2) of the Sentencing Act 1995 (WA) (the Act) sets out the various sentencing options. The ultimate option is a term of immediate imprisonment and the two preceding it are conditional suspended imprisonment and suspended imprisonment respectively. Under s 39(3) of the Act a court must not use a sentencing option in subs (2) unless satisfied that it is not appropriate to use any of the options listed before that option. The same considerations that are relevant to the imposition of a term of imprisonment must be revisited in determining whether to suspend the term; the power to suspend is not confined by reference wholly, mainly or specially to the effect that suspension would have on the rehabilitation of a particular offender: Dinsdale v The Queen (2000) 202 CLR 321 [18], [26], [84], [85].
However, as noted in Collins v The State of Western Australia [2007] WASCA 108 [17], the sentencing discretion is not to be exercised in a vacuum. A sentencing judge must impose a type of sentence that falls within a sound discretionary range. The decisions of this court and its predecessor provide guidance to sentencing judges with the aim of achieving consistency in sentencing. This court has made it plain that generally, a term of immediate imprisonment is the only appropriate sentencing option for serious drug offences. The incentives, financial and otherwise, to participate in the illicit drug distribution network must be counterbalanced by a clear and certain understanding that such involvement will ordinarily result in a penalty of immediate imprisonment: The State of Western Australia v Saxild [2008] WASCA 156 [12]. Thus, the imposition of a sentence other than immediate imprisonment for such an offence is, as a matter of fact, exceptional: The State of Western Australia v Andela [2006] WASCA 77 [17]; Saxild [13].
However, even if a term of immediate imprisonment is generally the appropriate penalty, the sentencing judge is not relieved of his or her obligation to determine the appropriate penalty in the particular case. In such circumstances the question for the sentencing judge is whether having regard to all relevant sentencing factors, the case does not require the imposition of the generally appropriate type of sentence: Collins [21].
43 A sentencing judge must be positively satisfied that suspension of the term of imprisonment (or other, lesser, penalty) is not appropriate before a term of immediate imprisonment can be imposed: GJT v The State of Western Australia [2011] WASCA 263 [4].
44 The appellant submitted that the objective seriousness of the offences and the appellant's subjective circumstances were such that an immediate term of imprisonment was inappropriate.
45 As to the objective seriousness of the offences, senior counsel for the appellant emphasised:
(a) the relatively moderate speed at which the appellant was driving;
(b) the 'extremely short' duration of the dangerous driving;
(c) the only route available to the appellant to leave the area was the route he took;
(d) the absence of alcohol and/or drugs as a contributing factor;
(e) there was no malice or intent involved in the commission of the offences; and
(f) the behaviour the victims - particularly Mr Lange who, immediately prior to the collision, stood in the middle of the road waving his arms.
46 The subjective circumstances said by the appellant to be favourable were:
(a) his pleas of guilty;
(b) his recent traffic record, which was said to be 'insignificant';
(c) his remorse; and
(d) his cooperation with the police after the collision.
47 Senior counsel for the appellant also pointed to the concession made at first instance that a suspended imprisonment order was open and within range.
48 The maximum penalty for count 1 was 7 years' immediate imprisonment, and for each of the offences in the s 32 notice, 9 months' imprisonment.
49 His Honour found that the appellant, while not intending to harm, deliberately drove his vehicle in the direction of Mr Lange when he knew, or ought to have reasonably known, that Mr Lange was affected by alcohol and thus, unpredictable in his behaviour. Given the appellant's sobriety, the opportunity for him to have taken evasive action and the obvious potential for serious injury, the fact that Mr Lange was standing in the middle of the road 'playing chicken' is not a matter that reduced the appellant's culpability.
50 It cannot be overlooked that, at the time of the collision, the appellant was driving a substantial four-wheel drive vehicle with a bull bar. The potential for great harm was obvious. Fortunately, the injuries sustained by the victims were not life-threatening, but the potential for such injury or for the loss of life was obvious. As it is, Mr Lange suffered a serious leg injury. The other victims suffered less serious injuries.
51 The incident arose primarily because of the appellant's own unreasonable behaviour. The victims' group took understandable exception to the way in which the appellant drove his vehicle off the beach. Instead of apologising for what he had done, the appellant confronted the victims' group. Rather than leaving the area immediately, he stayed there. When the appellant eventually left, he drove in a way that his Honour described as constituting 'a serious departure from the standard of driving reasonably expected of drivers of motor vehicles on public roads' (ts 73). This characterisation of the appellant's driving is an apt descriptor of the objective seriousness of what the appellant did.
52 That the appellant was driving at a moderate speed at the time of the collision, was not under the influence of alcohol or drugs and did not drive with 'malice or intent' do not constitute mitigating factors. To the contrary, they are aggravating factors which are absent in this case. Had those factors been present, the appellant's culpability would have been greater.
53 The principal mitigating factor was the appellant's pleas of guilty which attracted a discount of 20% pursuant to s 9AA of the Sentencing Act. It cannot be said that the appellant was a man of prior good character, although it is clear that the learned sentencing judge gave the appellant some credit for his good work in the Broome community. His Honour also noted that the appellant's offending had not been as frequent in recent years as it had been in the past. Further, his recent offences were minor in nature.
54 It is relevant to have regard to comparative cases to ensure consistent application of principle as a yardstick against which to measure the sentence in question. The task when considering outcomes is to achieve broad consistency. Previous cases do not fix the range of sound sentencing discretion. Ultimately, each case must be decided upon a consideration of its own facts and circumstances.
55 The appellant submitted that the sentences imposed were excessive, having regard to Libri v The State of Western Australia [2013] WASCA 113 and the cases referred to therein: appellant's written submissions, par 7.2.
56 In Libri, the appellant was convicted after trial of dangerous driving occasioning grievous bodily harm, failing to stop after an accident and filing to report an accident. He was sentenced to 3 years 3 months' imprisonment for the offence of dangerous driving occasioning grievous bodily harm, and 9 months' imprisonment for each of the other offences to be served concurrently with each other, but cumulatively upon the dangerous driving charge. The total effective sentence was therefore 4 years' immediate imprisonment. In addition, the appellant's driver's licence was disqualified for 4 years.
57 The appellant appealed on two grounds: first, that the sentence for the offence of dangerous driving causing grievous bodily harm was manifestly excessive; second, that the total effective sentence infringed the totality principle. This court dismissed the first ground, but upheld the second ground.
58 At the time of the offence, the appellant was 18 years and 4 months old. He had an appalling traffic record and drove on the day on question while disqualified. In essence, he drove his motor vehicle towards a group of partygoers who were milling about on the verge and the road at a speed of approximately 50 km to 55 km per hour. In doing so, he struck the victim, inflicting very serious and probably permanent disabilities. In its joint reasons, the court noted that other cases decided by this court in respect of sentences for the offence of dangerous driving occasioning or causing grievous bodily harm were of limited assistance because of the wide variety in the circumstances of the offences and the offenders, and because the maximum penalty for the offence was increased from 4 years' imprisonment to 7 years' imprisonment in 2008.
59 While it may be accepted that the circumstances of Libri were more serious than the present case, the fact that this court in Libri did not interfere with the sentence imposed for the offence of dangerous driving occasioning grievous bodily harm is not to be understood as setting the standard by which other sentences are to be measured.
60 Apart from Libri, the only other case referred to in argument was Abeyakoon v Brown [2011] WASCA 63; (2011) 211 A Crim R 338. The facts and circumstances of that case are entirely different to the present case and it provides no assistance.
61 The State's concession was, of course, not binding upon the sentencing judge. A sentencer is free to depart from such a concession, although, no doubt, it is a matter that his Honour is entitled to have regard to. Where a sentencing judge is not prepared to accept a concession, procedural fairness will usually require the sentencer to indicate that he or she may not accept the concession. Senior counsel for the appellant accepted that there was no lack of procedural fairness in his Honour's refusal to accept the State's concession (appeal ts 29).
62 Having taken into account all of the circumstances I have described of the offending, including those matters personal to the appellant, I am not persuaded that his Honour erred in deciding that nothing short of immediate imprisonment was appropriate in this case.
63 While I would give leave to appeal in respect of ground 3, grounds 1, 3 and 5 have not been made out.
Ground 6 - did the total effective sentence infringe the first limb of the totality principle?
64 The first limb of the totality principle requires that the total effective sentence bear a proper relationship to the overall criminality in all of the offences viewed in their entirety, having regard to all of the circumstances of the case, including those referable to the offender personally.
65 The proper approach in dealing with multiple offences of dangerous driving occasioning death or injury which have resulted from the one incident of dangerous driving was discussed by this court in Eves v The State of Western Australia [2008] WASCA 7; (2008) 49 MVR 259 and Longbottom v The State of Western Australia [2008] WASCA 203; (2008) 38 WAR 396. That approach was explained by Steytler P in Longbottom, as follows:
The issue of sentencing for common elements of multiple offences was explored in Eves v The State of Western Australia [2008] WASCA 7; (2008) 49 MVR 259. I remain of the opinion, there expressed, that there are two applicable principles in a case such as the present. The first is that there is no requirement that wholly concurrent terms be imposed for multiple offences constituting one transaction or a continuing episode: R v Faithfull [2004] WASCA 39; (2004) 142 A Crim R 554 [28] and the cases there referred to. The second is the more pertinent (for present purposes) principle identified in Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 [40] that, to the extent to which an offender stands convicted of offences containing common elements, it would be wrong to punish that offender twice for the commission of elements that are common. That principle has since been affirmed in Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616 [27], [34] and [38]. This second principle seems to me to have the inevitable consequence that it is unsound in principle to impose a sentence that fully addresses each element of the offence on each count and then wholly aggregate the sentences so imposed.
The preferable approach, when sentencing for multiple offences, is to consider, first, what sentence is appropriate for each offence in the circumstances of the case and then to ensure, by adjusting the total sentence to the extent necessary (if at all), that the total sentence fairly and justly reflects the total criminality of the appellant's conduct and is not crushing: Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295, 307 - 308; Martino v The State of Western Australia [2006] WASCA 78 [16]. When adopting that approach in a case in which there are elements that are common to each offence, the commonality of these elements seems to me to be best recognised, ordinarily, by orders for partial concurrency of the sentences imposed. That way, the individual sentences will be adequate to reflect the gravity of each offence: s 6(1) of the Sentencing Act 1995 (WA) [5] - [6].
66 Senior counsel for the appellant submitted that, as the offences arose out of one incident of dangerous driving, and having regard to the 'comparatively minor level of injuries' suffered by the victims of the two lesser charges, no penalty additional to count 1 was warranted.
67 I will not repeat what I have written about the circumstances of the offending and the appellant's personal circumstances. In my opinion, some cumulacy was required in this case to reflect the fact that the appellant not only injured Mr Lange, but that he also inflicted injuries upon two other victims. His Honour was mindful of the totality principle and, upon an analysis of the sentencing remarks, he did not subject the appellant to 'double punishment'.
68 In my opinion, the total sentence fairly and justly reflected the total criminality of the appellant's conduct. It was a proper reflection of the appellant's overall criminality in all the circumstances, including those referable to the appellant personally. Ground 6 is without merit. It has no reasonable prospect of succeeding.
Proposed ground 9 - was the motor driver's licence disqualification excessive?
69 Ground 9 alleges that the motor driver's licence disqualification of 3 years was manifestly excessive. The appellant supported this ground by reference to 'all the circumstances of the case' - in particular, the appellant's prior traffic record over the 10-year period prior to the offences - and that the disqualification will make it 'impossible' for him to work as a truck driver. Once again, the appellant referred to Libri and the cases cited therein. Libri is of little assistance because there was neither an issue in that case as to the length of the disqualification, nor was it an issue in the cases cited therein.
70 In Timbrell v The State of Western Australia [No 2] [2013] WASCA 269, I said:
The question of the length of a driver's licence disqualification is a matter of discretion to be decided having regard to the relevant statutory provisions and all of the circumstances of a case. The same considerations that inform the sentencing of the offender generally, will inform the question of the length of any disqualification. Thus, any disqualification must be proportionate to the gravity of the offence and be no longer than is required to achieve the purposes of punishment, such as protection of the community, deterrence, retribution and reform [125].
71 See also Gray v The State of Western Australia [2015] WASCA 108 [140].
72 The minimum disqualification for the offences was, in each case, 2 years.
73 While the appellant's offending over the 10-year period prior to the commission of the offences had reduced, his driving record was not without blemish. Having regard to all the circumstances of the case, a period of 3 years cannot be said to be unjust or unreasonable. The ground has no merit and I would not grant leave to appeal with respect to it.
Conclusion
74 None of the grounds of appeal have been made out. The appeal must be dismissed. The orders that I would make are as follows:
1. Leave to appeal is granted on ground 3.
2. Leave to appeal is refused in respect of grounds 2, 4, 6, 7 and 9.
3. The appeal is dismissed.
75 HALL J: I agree with Mazza JA.
1 The High Court refused Mr Thomas' application for special leave to appeal against this decision. Bell J stated that the court was not persuaded that any error of principle had been made: Thomas v The State of Western Australia [2015] HCA Trans 68 (13 March 2015).
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