Eves v The State of Western Australia - [2008] WASCA 7

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: EVES -v- THE STATE OF WESTERN AUSTRALIA [2008] WASCA 7

CORAM: STEYTLER P
McLURE JA
MILLER JA

HEARD: 8 NOVEMBER 2007

DELIVERED : 16 JANUARY 2008

FILE NO/S: CACR 61 of 2007

BETWEEN: MATTHEW JOHN EVES
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :YEATS DCJ
File No  :IND 1019 of 2006

Catchwords:

Criminal law - Sentencing - Three counts of dangerous driving causing death - Three deaths - Sentences ordered to be served cumulatively - Total sentence of 5 years' imprisonment - Offender aged 29 years - Driving vehicle towing trailer - Swerving from side to side on Old Coast Road - Collision with oncoming vehicle which collided with another vehicle - Whether total cumulation of sentences open - Application of principle against double punishment

Legislation:

Road Traffic Act 1974 (WA), s 59(1)(b)
Sentencing Act 1995 (WA), s 11(1), s 11(3)

Result:

Appeal allowed
Appellant resentenced

Category: A

Representation:

Counsel:

Appellant: Ms B J Lonsdale
Respondent: Mr J Mactaggart

Solicitors:

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

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

Ainsworth v D (a child) (1992) 7 WAR 102
Callaghan v The Queen (1952) 87 CLR 115
Cameron v The Queen [2002] HCA 6; (2002) 209 CLR 339
DPP (Vic) v Solomon (2002) 36 MVR 425
Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616
Kay v The Queen [2004] WASCA 222; (2004) 147 A Crim R 401
Kennewell v Rand [2006] ACTCA 10
McBride v The Queen (1966) 115 CLR 44
Mill v The Queen (1988) 166 CLR 59
Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610
Punch v The Queen (1993) 9 WAR 486
R v Christoff (2003) 140 A Crim R 45
R v Faithfull [2004] WASCA 39; (2004) 142 A Crim R 554
R v Gray [1977] VR 225
R v Guariglia (2001) 33 MVR 543
R v Guilfoyle [1973] 2 All ER 844
R v Janceski (2005) 44 MVR 328
R v Penn (1994) 19 MVR 367
R v Plumb [2003] NSWCCA 359
R v Price [2004] NSWCCA 186
R v Skrill [2002] NSWCCA 484; (2002) 38 MVR 175
R v Wilkins (1988) 38 A Crim R 445
Ruane v The Queen (1979) 1 A Crim R 284
Smith v The Queen [1976] WAR 97
Taylor v The State of Western Australia [2007] WASCA 218; (2007) 48 MVR 562
Wilkins (1988) 38 A Crim R 445
Wood v The Queen [2002] WASCA 95; (2002) 130 A Crim R 518

STEYTLER P: I have had the advantage of reading the judgments of McLure JA and Miller JA. The principal difference between them relates to the approach to be adopted when sentencing an offender in a case involving dangerous driving causing death, contrary to s 59(1)(b) of the Road Traffic Act 1974 (WA), when a single act of dangerous driving causes the death of more than one person. Miller JA has endorsed the approach taken by the sentencing judge, who imposed identical and wholly cumulative penalties in respect of each of three deaths caused by a single act. McLure JA, on the other hand, considers that this approach offends the principle identified in Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 [40] (McHugh, Hayne & Callinan JJ) 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 (for ease of reference I will refer to this as the 'common element principle').
The approach endorsed by Miller JA has previously been adopted by the Court of Criminal Appeal in this State.
In Kay v The Queen [2004] WASCA 222; (2004) 147 A Crim R 401, the appellant was convicted by a jury on two charges of dangerous driving causing death and one of dangerous driving causing grievous bodily harm. He also pleaded guilty to a Petty Sessions charge of dangerous driving causing bodily harm. The two deaths, the grievous bodily harm and the bodily harm all arose out of one act of dangerous driving. The appellant was sentenced to 4 years' imprisonment on each of the charges of causing death; to a term of 3 years' imprisonment on the charge of causing grievous bodily harm; and to a term of 1 year's imprisonment on the charge of causing bodily harm. All of the sentences were ordered to be served cumulatively. One of the grounds of appeal was that the sentencing judge had erred in making all sentences cumulative in circumstances in which all of the offences arose out of a single episode of driving. The court allowed the appeal, but only because the sentences imposed were regarded as excessive. Miller J (with whom Murray and Wheeler JJ agreed) concluded that it had been open to the sentencing judge to impose wholly cumulative sentences. The court substituted, for the sentences imposed by the sentencing judge, sentences of 2 years and 4 months' imprisonment in respect of each of the charges involving a death; a sentence of 1 year and 4 months' imprisonment in respect of the charge involving grievous bodily harm; and a sentence of 8 months' imprisonment in respect of the charge involving bodily harm. The first three sentences were ordered to be served cumulatively. The fourth sentence was ordered to be served concurrently.
In Taylor v The State of Western Australia [2007] WASCA 218; (2007) 48 MVR 562, the appellant was convicted on five counts of unlawful killing arising out of a single motor vehicle collision. He was sentenced to terms of 4 years' imprisonment on each count on the indictment. The sentence on count 4 was ordered to be served cumulatively on that imposed on count 1, but all other sentences were ordered to be served concurrently. There were only two grounds of appeal. The first was that the sentencing judge 'imposed a sentence which, in all of the circumstances, exceeded the range which was properly applicable, having regard to the level of seriousness of the offending and the circumstances of the particular case'. One of the particulars of that ground was that the sentencing judge failed to give adequate weight to the fact that the five deaths were the product of a single and unintended incident. The second ground was that the total effective sentence infringed the totality principle. Both grounds failed and the appeal was dismissed.
In my respectful opinion, notwithstanding that the approach endorsed by Miller JA has previously been adopted in this State, that preferred by McLure JA should henceforth be followed in cases of multiple deaths caused by one act of dangerous driving. It is appropriate that I express my own reasons for preferring that approach.
There seem to me to be two applicable principles.
The first is that there is no requirement that concurrent terms be imposed for multiple offences constituting one transaction or a continuing episode. There is a general rule, or a 'good working rule' (Ruane v The Queen (1979) 1 A Crim R 284), that, when a number of offences arise out of one transaction or a continuing episode, any terms of imprisonment should be made concurrent. However, recent cases have repeatedly made it clear that a sentencing judge must, in each case, consider whether the application of that general rule would result in an appropriate measure of the total criminality involved in the conduct. If it would not, then the 'rule' should not be applied. It is enough to refer, in this respect, to R v Faithfull [2004] WASCA 39; (2004) 142 A Crim R 554 [28] (McLure JA with whom Malcolm CJ & Wheeler J agreed) and the cases there referred to.
The second applicable principle is the common element principle identified in Pearce.
There is no dispute, in this case, concerning the applicability of the first of these two principles. The preponderance of recent authority in this State and elsewhere supports the proposition that, in cases involving multiple offences arising out of the one motor vehicle accident, it is open to a sentencing court to order at least some degree of cumulation: R v Penn (1994) 19 MVR 367, 368 ‑ 369; R v Skrill [2002] NSWCCA 484; (2002) 38 MVR 175 [69] ‑ [75]; R v Plumb [2003] NSWCCA 359 [12] ‑ [21]; Kay [56]; Kennewell v Rand [2006] ACTCA 10 [55] and Taylor [27].
In my respectful opinion, the common element principle should also be applied in a case of this kind. That principle was not referred to in either of Kay or Taylor. Pearce was not cited by counsel for the appellant in Kay. It is unclear whether Pearce was cited in Taylor, but it seems apparent from the judgment in that case that no reliance was placed by counsel for the appellant on the common element principle. It seems to me that it is as wrong to punish an offender twice for the commission of common elements in a case of this kind as it is in any other kind of case. As McHugh, Hayne and Callinan JJ said in Pearce [40], to punish an offender twice, if conduct falls in an area of overlap, would be to punish the offender according to the accidents of legislative history rather than according to his just deserts. The common element principle has since been affirmed by the High Court in Johnsonv The Queen [2004] HCA 15; (2004) 78 ALJR 616 [27], [34] (Gummow, Callinan & Heydon JJ, with whom Gleeson CJ agreed) and [38] (Kirby J). There is no basis for not applying it in this case.
As to the balance of the matters raised by this appeal, I need say no more than that I agree with what has been said by McLure JA. However, I should specifically endorse her comments concerning the inapplicability, in this State, of the approach taken by the English Court of Appeal in R v Guilfoyle [1973] 2 All ER 844. A division of cases of this kind into two broad categories, one involving momentary inattention or misjudgment and the other involving a selfish disregard for the safety of others or a degree of recklessness, for the purposes of sentencing is, for the reasons given by McLure JA, prone to lead to error. That risk has previously been recognised by Murray J in Wood v The Queen [2002] WASCA 95; (2002) 130 A Crim R 518 [43] and in Kay [3] (see also the comments of Miller J in Kay [53]).
It follows from what I have said that I would allow the appeal, set aside the orders for cumulation and, in lieu thereof, make the orders for

partial cumulation identified by McLure JA. The appellant remains eligible for parole.

McLURE JA: This is an appeal against sentence. The appellant was convicted after trial of three counts of dangerous driving causing death contrary to s 59(1)(b) of the Road Traffic Act 1974 (WA) (the Act). He was sentenced to 1 year and 8 months' imprisonment for each offence. The sentences were ordered to be served cumulatively resulting in a total effective sentence of 5 years' imprisonment (equivalent to 7 years 6 months' imprisonment under the former sentencing regime). He was made eligible for parole.
The facts and grounds of appeal are detailed in the reasons for judgment of Miller JA and not repeated here unless required for an understanding of these reasons.

Remorse

In the first ground of appeal the appellant challenges the sentencing judge's finding that there was no remorse she could take into account. It is necessary to refer to the finding in context. The sentencing judge said:
There is no remorse that I can take into account in this case. The offender has entered pleas of not guilty and has put the State to proof of its case … On the other hand, I take account of the fact that this offender is a man of prior good character. He deeply regrets what happened that night …
I accept that he was highly regarded by those who knew him. He enjoys a reputation in the community as a hard‑working, honest, caring young man. It was also apparent to me in watching the video interview of the offender that he suffered deep shock as a result of visiting the accident scene and of realising later the effect of what he had done. (AB 52)
The statement that there was no remorse which could be taken into account is inaccurate. There were clear indicators of remorse including the appellant's cooperation with police in which he made admissions which facilitated the course of justice and in which he admitted involvement in the accident resulting in the deaths in question. The sentencing judge's findings that he suffered deep shock as a result of, and deeply regretted, what he had done also demonstrates remorse. The sentencing judge relied on the appellant's video record of interview with police for those conclusions. On my reading of the reasons, the sentencing judge appears to have assumed that remorse is inconsistent with a plea of not guilty. That assumption is incorrect: R v Gray [1977] VR 225, 231; R v Christoff (2003) 140 A Crim R 45, 58 ‑ 60. However,

although these matters were not characterised as remorse they were taken into account as mitigatory. The error is one of classification that has no substantive effect on the outcome. I would dismiss ground 1. Ground 2 was abandoned.

Category of dangerous driving

Grounds 3 and 4 overlap and were dealt with together. The appellant contended in oral submissions that the sentencing judge erred in finding that the appellant knew immediately prior to the accident that he was too tired to drive and as a result incorrectly characterised the appellant's conduct as being in the more serious category of offending.
The sentencing judge did not find that the appellant knew at the time he committed the offences that he was too tired to drive. It is necessary to set out the sentencing judge's findings. She said:
The factual findings that I am required to make relate to the driving of the accused and the need for me to evaluate that driving. Based on the offender's answers to police in his interview I am satisfied beyond reasonable doubt that he was aware that there was a fault in his driving or in his trailer that night as he was driving toward Perth. He was clearly aware that the van behind him was trying to get his attention encouraging him to pull over.
I am also satisfied beyond reasonable doubt that he knew he was tired and somewhat unwell and had not eaten for a couple of hours ‑ for a number of hours, sorry, since lunch. I am satisfied that he had ample opportunity to pull over and consider what the problem was during his drive when he was swerving from side to side on the road. Further I am satisfied that when he swerved to the left he would have been well aware that he was going off the road by his tyres coming into contact with the rumble strip and he should have been well aware that he was overcompensating when he swerved back across the centre line.
While the accused was clearly driving while he was tired, there is no evidence that tiredness caused him to doze or lose concentration … What the tiredness has done in this case is to cause the offender to exercise extremely poor judgment in a situation where he was clearly warned repeatedly by another road user that there was a problem with his driving or with his trailer. Instead of pulling over as he should have done, his tiredness seems to have been the main reason he kept going. He just wanted to get home. By doing that and continuing his dangerous driving despite a clear warning, repeated clear warning, I am satisfied that he had shown a selfish disregard for other road users. For these reasons, the offender's dangerous driving falls into the more serious category for the purpose of sentencing. (AB 51 ‑ 52)
In his record of interview with police, the appellant admitted he was tired but thought at the time of driving that he was properly in control of his vehicle. The sentencing judge said there was no evidence that tiredness caused him to doze or lose concentration. However, the appellant accepted in hindsight that he was too tired to drive.
The appellant also challenged the sentencing judge's finding that the appellant was aware that people in the vehicle behind him were trying to warn him about his driving and trying to get his attention, encouraging him to pull over. The appellant accepted in his record of interview that the vehicle behind him was trying to get his attention and warn him of a problem. The appellant said he thought there was something wrong with the rear of his trailer or something had fallen off it. The evidence of David Pike set out in Miller JA's judgment gives rise to an irresistible inference that the appellant must have been aware that the vehicle behind was encouraging him to pull over. Further, the appellant did not challenge the trial judge's finding that he knew when he was going off the road to the left as a result of his tyres coming into contact with the rumble strip and he should have been aware that he was overcompensating when he swerved back across the centre line. That being the case, it was open to the sentencing judge to be satisfied beyond reasonable doubt that the appellant was aware that the vehicle behind was trying to get his attention and to get him to pull over and that he was being warned of a problem, that problem being either with his driving or with his trailer.
I turn now to the sentencing judge's conclusion that the appellant's conduct fell into the more serious category of dangerous driving. The Court of Criminal Appeal in this State has on a number of occasions cited with approval the decision of the Court of Appeal in England in R v Guilfoyle [1973] 2 All ER 844 in which it is stated that cases of this kind fall into two broad categories being 'first, those in which the accident has arisen through momentary inattention or misjudgement, and secondly those in which the accused has driven in a manner which has shown a selfish disregard for the safety of other road users or of his passengers, or with a degree of recklessness': Smith v The Queen [1976] WAR 97, 107; Wood (2002) 130 A Crim R 518; Kay v The Queen (2004) 147 A Crim R 401.
The court in Guilfoyle said that offenders in the first category with a good driving record should normally be fined and those in the second category would ordinarily receive a custodial sentence. In my respectful opinion, the approach taken by the English Court of Appeal in Guilfoyle is of little, if any, assistance in this State and may give rise to error. The circumstances of the offence of dangerous driving causing death and those of the offender will give rise to differing degrees of culpability on a continuum between low and high which is not consistent with separating the conduct into two categories. Nor is it consistent with the Sentencing Act 1995 (WA) which provides for a variety of sentencing options in addition to a fine and immediate imprisonment.
The real question in this case is not into which category the conduct falls but whether a non‑custodial sentence was open on the facts found by the sentencing judge. In my respectful opinion the sentencing judge was, having regard to the circumstances of the offences, the type of sentence customarily imposed in such circumstances and the importance of general deterrence, correct to conclude that a term of immediate imprisonment was the only available sentencing option. I would dismiss grounds 3 and 4.

Cumulation and Totality

Grounds 5 and 6 contend that the total effective sentence was manifestly excessive and breached the totality principle. The breach of the totality principle was said to be caused by the total cumulation of the sentences.
The sentencing judge said in her reasons (AB 48) that the normal rules as to concurrency and cumulation do not apply when there has been multiple deaths as a result of one act of dangerous driving, citing Kay v The Queen which approved the judgment of Lee CJ in Wilkins (1988) 38 A Crim R 445. This led the sentencing judge to order complete cumulation.
In fact, the general sentencing principles relating to concurrence and cumulation do apply to the offence of dangerous driving causing death or grievous bodily harm in the same way as they apply to all other offences. All Lee CJ said in Wilkins was that it is not a principle of law or sentencing that concurrent terms of imprisonment must be imposed if multiple offences constitute one transaction or a continuing episode to which the one transaction rule would ordinarily apply. That is also the law in this State: R v Faithfull (2004) 142 A Crim R 554 at [28]. The one transaction rule is a general rule; it does not apply if wholly concurrent sentences would offend the totality principle. If wholly concurrent sentences do not adequately reflect the total criminality of the conduct as a whole, the appropriate aggregate sentence is ordinarily achieved by making the sentences wholly or partially cumulative: Mill v The Queen (1988) 166 CLR 59, 63. It is also necessary in this context to refer to what was said by the High Court in Pearce v The Queen (1998) 194 CLR 610. It is convenient to repeat what I said on that subject in R v Faithfull at [21] ‑ [24]:
Before addressing the one transaction rule it is appropriate to see it in the broader context of the proper approach to sentencing as identified by the High Court in Pearce v The Queen … In their joint judgment, McHugh, Hayne and Callinan JJ said (at 624 … ) that a Judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and only then consider questions of cumulation or concurrence as well as questions of totality. Further, if a single act is an element of each offence charged, the offender should not be doubly punished for that act in the penalty for each offence.
In Pearce an offender was convicted of two charges with an overlapping element in respect of a single incident or episode. The offender pleaded guilty to (among other things) maliciously inflicting grievous bodily harm with intent to do the victim grievous bodily harm and with breaking and entering the dwelling house of the same victim and, while therein, inflicting grievous bodily harm on him. Two sentences of imprisonment imposed for each offence were ordered to be served concurrently. Although the elements of the offences overlapped they were not identical. The malicious infliction of grievous bodily harm required proof of specific intent to do grievous bodily harm whereas the breaking and entering offence did not.
Of interest in the context of the one transaction rule is that the majority, after stating that the individual sentences imposed were flawed because they doubly punished the offender for a single act, namely, the infliction of grievous bodily harm, continued:
'Further, to make the sentences imposed on those two counts wholly concurrent may also be said to reveal error in that to do so failed to take account of the differences in the conduct which were the subject of punishment on each count.'
The majority in Pearce also referred to the totality principle. That principle of sentencing requires a Judge who is sentencing an offender for a number of offences to ensure that the aggregation of the sentences appropriate for each offence is a just and appropriate measure of the total criminality involved: Postiglione v The Queen (1997) 189 CLR 295 at 307 ‑ 308 … per McHugh J. The totality principle applies where accumulation or aggregation is prima facie appropriate. However, where concurrent sentences are prima facie appropriate, it is also necessary for the sentencing Judge to consider whether concurrent sentences provide a just and appropriate measure of the total criminality involved.

The High Court in Pearce identified the orthodox approach to sentencing for multiple offences. However, it is now established that it is not an appealable error to adopt a different approach (such as for example, adjusting the otherwise appropriate sentence rather than ordering partial or total cumulation) provided the correct sentencing principles are applied: Johnson v The Queen (2004) 78 ALJR 616 at [26]. But, it is an error of principle to punish an offender twice for the commission of elements that are common to the offences of which he or she has been convicted: Johnson at [33] ‑ [34].
The application of the orthodox Pearce approach in this case would be as follows. The sentence on count 1 should punish for both elements of the offence, being dangerous driving and the death of the victim the subject of that count (which on the sentencing judge's opinion should be 1 year and 8 months' imprisonment). In respect of counts 2 and 3 there should be no further punishment for the same act of dangerous driving but there should be punishment for the separate unpunished elements, being the death of the victims specified in those counts. Thus, the sentences on counts 2 and 3 would be less than the sentence on count 1. Further, those sentences would, subject to the application of the totality principle, be made wholly cumulative. Further, as the High Court in Pearce observed, to make the sentences wholly concurrent would be to fail to take into account the differences in the conduct which should be the subject of punishment on each count (again, subject to the totality principle).
The courts in New South Wales and Victoria take a slightly different approach albeit with the same objective of avoiding multiple punishment for the same act or omission. Instead of reducing the subsequent individual sentences the courts in those States partially cumulate the sentences to achieve the same end: in New South Wales R v Skrill (2002) 38 MVR 175; R v Price [2004] NSWCCA 186; R v Janceski (2005) 44 MVR 328 and in Victoria R v Guariglia (2001) 33 MVR 543; DPP (Vic) v Solomon (2002) 36 MVR 425. This approach has the advantage of avoiding the imposition of lower sentences for subsequent deaths arising out of the same conduct which may give the appearance of placing reduced weight or value on the deaths the subject of subsequent counts.
However, whatever course is adopted, it is unsound in principle to sentence in respect of each element of the offence on each count and then wholly cumulate the sentences so imposed as the sentencing judge did in this case. That results in multiple punishment for the common element of each offence, being that of dangerous driving. That error enlivens this court's jurisdiction to set aside the sentence imposed by the sentencing judge and re‑sentence the appellant, it having the necessary materials to do so.
I propose to avoid multiple punishment for the common element of each offence by following the course adopted in New South Wales and Victoria and ordering partial cumulation.
The appellant accepted that a sentence of 1 year and 8 months (20 months) was within an appropriate sentencing range. I agree and would not interfere with the individual sentences imposed by the sentencing judge. However, having regard to the need to avoid multiple punishment for the common element of the offences and the principle of totality, I would order that the sentence on count 2 commence 10 months after the commencement of the sentence on count 1 and the sentence on count 3 commence 10 months after the commencement of the sentence on count 2 resulting in a total effective sentence of 3 years 4 months. Having regard to the circumstances of the offending as a whole and those personal to the appellant, a total sentence of 3 years and 4 months (5 years under the former sentencing regime) is all that is fairly necessary to achieve all the recognised sentencing objectives, including punishment, retribution and deterrence.
The appellant also contended that the total sentence was outside the range of sentences customarily imposed. Having regard to the conclusion I have reached it is unnecessary to determine this question. However, I wish to make some (obiter) observations on the relevance of sentences imposed for motor vehicle manslaughter contrary to s 266 and s 280 of the Criminal Code (WA).
Sentences imposed for motor vehicle manslaughter are not directly comparable to sentences for dangerous driving causing death contrary to s 59(1)(b) of the Act. That is clear from the penalties. The penalty for manslaughter is 20 years (s 287 of the Code). The penalty for a breach of s 59(1)(b), in the absence of circumstances of aggravation, is 4 years' imprisonment. Moreover, in order to constitute a breach of s 266 of the Code gross negligence must be established: Callaghan v The Queen (1952) 87 CLR 115. The standard of fault sufficient to give rise to civil tortious liability is not sufficient to constitute dangerous driving: McBride v The Queen (1966) 115 CLR 44, 50. It may be concluded that the standard of fault necessary to establish dangerous driving under s 59(1)(b) of the Act is not so low as the standard of fault sufficient to give rise to civil liability in negligence but not so high as to constitute gross negligence as required to establish a breach of s 266 of the Code.

For the reasons given I would allow the appeal, set aside the orders for cumulation and in lieu thereof make the orders for partial cumulation set out above. The appellant remains eligible for parole.
MILLER JA: The appellant was charged on indictment with three counts of dangerous driving causing death. Each count arose out of the same circumstances. It was alleged that, on 26 January 2006 near Lake Clifton, the appellant had driven a Toyota Landcruiser in circumstances in which he was involved in an incident which occasioned the death of three others. At the time, his driving was, having regard to all the circumstances of the case, dangerous to the public or any person. Each offence was an offence against the provisions of s 59(1)(b) of the Road Traffic Act 1974 (WA) (the Act) read with s 59B(1)(f) and s 59B(2)(a).
Section 59(1)(b) of the Act is in the following terms:
(1)If a motor vehicle driven by a person (the 'driver') is involved in an incident occasioning the death of, or grievous bodily harm to, another person and the driver was, at the time of the incident, driving the motor vehicle -
…
(b)in a manner (which expression includes speed) that is, having regard to all the circumstances of the case, dangerous to the public or to any person,
the driver commits a crime and is liable to the penalty in subsection (3).
Section 59B(1)(f) is in the following terms:
(1)For the purposes of sections 59 and 59A, the circumstances in which a motor vehicle is involved in an incident occasioning the death of, or grievous bodily harm or bodily harm to, a person include those in which the death or harm is occasioned through -
…
(f)an impact with any object on or attached to the motor vehicle.
Section 59B(2)(a) is in the following terms:
(2)For the purposes of sections 59 and 59A, a motor vehicle is also involved in an incident occasioning the death of, or grievous bodily harm or bodily harm to, a person if the death or harm is occasioned through the motor vehicle -

(a)causing an impact between other vehicles or between another vehicle and any object, thing or person.

The appellant pleaded not guilty to the indictment and after trial which concluded on 2 May 2007, he was convicted on each count. He was sentenced on 4 May 2007 to 1 year 8 months' imprisonment on each count to be served cumulatively, making an aggregate sentence of 5 years' imprisonment. He was made eligible for parole. There was a consequential order of disqualification from holding or obtaining a motor vehicle driver's licence for a period of two years in relation to each count. That meant a total of six years' disqualification from holding a motor vehicle driver's licence.

Appeal

The appellant was granted leave to appeal by Wheeler JA on 28 August 2007. The grounds of appeal are expansive. They challenge a number of the learned sentencing judge's findings and contend that the sentences were beyond range and failed adequately to reflect the totality principle. In detail, they are as follows:
1The Learned Sentencing Judge erred in fact in finding that the Appellant showed no remorse which could be taken into account.
2The Learned Sentencing Judge erred in giving weight in sentencing to a Children's Court conviction for dangerous driving.
3The Learned Sentencing Judge erred in fact in finding that the Appellant had ignored repeated warnings about his driving and was aware of fault in his driving.
4The Learned Sentencing Judge erred in finding that the manner of the Appellant's driving fell in to the more serious category of dangerous driving.
5The Learned Sentencing Judge imposed a sentence which, in all of the circumstances, exceeded the range which was properly applicable, having regard to the level of seriousness of the offending and the circumstances of the particular case.
Particulars
5.1In assessing the overall seriousness of the offence, The Learned Sentencing Judge failed to give adequate weight to the following factors:
(a)The deaths were the product of a single and unintended incident;
(b)The offending was not aggravated by the presence of excessive alcohol or drugs;
(c)The Appellant did not fully appreciate that his fatigue would have affected his manner of driving;
(d)the fact of the Appellant's youth and generally good antecedents; and
(e)the fact that the Appellant stopped to try and assist the deceased
(f)the fact that the Appellant telephoned the police soon after the incident to assist them with their enquires [sic]
6The total effective sentence imposed on the Appellant did not adequately reflect the totality principle and as a result was manifestly excessive in all of the circumstances of the case.
Particulars
(a)None of the individual sentences imposed on each of the counts on which the Appellant was convicted were in themselves excessive.
(b)By ordering counts 1 ‑ 3 to be served cumulatively, the Learned Sentencing Judge gave inadequate weight to the totality principle, resulting in a sentence which was manifestly excessive.
(c)Whilst the circumstances relating to the counts ordered to be served cumulatively would prima facie have justified some cumulation of the individual sentences, the totality principle required that only partial cumulation be ordered so as to achieve a sentence that was proportionate to the criminality of the offending.
Ground 2 was abandoned at the hearing and ground 1 was only faintly argued.

The facts

At about 10.30 pm on 26 January 2006 (Australia Day 2006), the appellant was driving a Toyota Landcruiser utility, attached to which was a large trailer. He was driving north on the Old Coast Road near Lake Clifton and was returning to Perth from Bunbury. That day he had left Perth at approximately 6 am, driven to Bunbury and erected a gazebo in the course of his business. He was in the process of returning home when the incident occurred on the Old Coast Road.
The trailer being pulled by the appellant's Landcruiser was empty, save for a large wooden box which was held in place with G clamps. The trailer protruded some 330 millimetres beyond the width of the utility on each side.
As the appellant proceeded north along the Old Coast Road, he was observed by others to swerve from side to side. David Pike, who was 14 years of age at the time, was a passenger in a van being driven north by his father, Colin Pike. David Pike gave evidence at trial that he observed the appellant's vehicle swerving from side to side. He said that his father had tried to signal the appellant to pull over so that the swerving could be prevented. The description given by David Pike of the manner of swerving was that the trailer was going over the rumble strip on the left‑hand side of the roadway and then swerving back to the right or middle of the roadway. The witness observed that at one point the trailer was one metre over the broken white line.
At a point about 600 metres north of the location where the dual carriageway of the Old Coast Road merges to a single north and south lane, there was a collision which involved the appellant's vehicle and trailer. The trailer had then moved to a point one metre over the broken white line so that it was obstructing the south‑bound lane. An oncoming Sigma vehicle in which Leon Thomas Mills and Brent Ryan Jones were travelling in a southerly direction on the Old Coast Road struck the right front of the appellant's trailer. At this moment, the van being driven by Colin Pike was travelling about 90 metres behind the appellant's vehicle and trailer. The Sigma sedan rotated in a clockwise motion across the highway to the wrong side of the road. The left rear passenger side of it collided with the right front of the van. It caused the Sigma to explode into flames. It was thrown towards a tree and it bounced back on to the roadway. The two men in it were incinerated.
The collision also caused Mr Pike's van to catch fire. Colin Pike was trapped in the van until a passer‑by was able to extricate him from it. He died on the highway a short time later. David Pike suffered injuries but survived.
The appellant gave an account of what had occurred to investigating police. He said that he heard a bang and saw a vehicle explode behind him. He claimed that he did not know that a collision had occurred. Extracts from a transcript of a video record of interview conducted by investigating police with the appellant on 27 January 2006 are as follows:
A. I ‑ ‑ I was driving my vehicle home from doing a job in Bunbury.
Q. Yep.
A. Um, as I was driving along the road, I heard a ‑ ‑ a really loud bang ‑ ‑
Q. Yep.
A. ‑ ‑ looked in the rear view mirror, and then saw flames ‑ ‑
Q. Yep.
A. ‑ ‑ or an explosion or ‑ ‑ or whatnot.
Q. Mm hm.
A. Realised, you know, there was something major had gone wrong ‑ ‑
Q. Mm hm.
A. ‑ ‑ did a u‑turn and went back ‑ ‑
Q. Yep.
A. ‑ ‑ and then discovered a man burning in the front of his car. Tried to assist him.
The appellant said that he had screamed for water, but then 'figured' that someone needed to do something and drove to the Lake Clifton Roadhouse. When he got there, the roadhouse was shut and everything was pitch black. He pulled out of the roadhouse and could see the glow of the fire, but he 'already knew how many people were back there', so he decided to drive home. He felt horrified and shocked. He telephoned his mother from a shopping centre near his home and although he thought about ringing the police, he did not do so. He went to his mother's house in Riverton but still made no report to police. It was not until the early hours of the next morning that police were notified.
The appellant was aware of the fact that his vehicle had been in a collision because he saw the damage to his trailer when he got to his home which was in Coolbellup. He described the timber frame of the trailer as being snapped in half.
The appellant was asked about the bang that he had heard whilst driving on the Old Coast Road. He said:
A. Nothing. I ‑ ‑ I was just driving along and ‑ ‑ but prior to that, I had someone sitting behind me, flashing their lights, and I thought something had dropped off the trailer, although I secured everything properly and all of that, and so, you know, I was sort of wondering about, you known, the trailer ‑ ‑
Q. Mm hm.
A. ‑ ‑ and then, boom.
The appellant acknowledged that a driver had flashed his lights at him. The appellant said that he had indicated to pull over as this driver passed, but the driver did not pull over after he had passed the appellant's vehicle and so the appellant did nothing. He proceeded on. He thought that a person or persons in the vehicle that had overtaken him had tried to attract his attention, but he was not sure.
The appellant was asked whether he should have been driving his vehicle on the night in question. The following exchange occurred:
Q. No? And ‑ ‑ and the indications are ‑ ‑ it's a preliminary part of the investigation, and we haven't formally interviewed the witnesses, but the indications are from the primary talk to those witnesses, that the reason that car was flashing his lights at you, and he was actually trying to get level with you, was that ‑ ‑ cos they were concerned about how you were driving the vehicle, because you were all ‑ ‑ all over the road. And they were actually trying to stop you. All right. Does that surprise you?
A. No.
Q. Is that why ‑ ‑ the question again then is, ‑ ‑
A. Does that surprise me?
Q. Does ‑ ‑ no, were you too tired to drive the vehicle home, and ‑ ‑ were you driving the vehicle home safely?
A. Probably not. Should have pulled over and had a sleep.
Q. How ‑ ‑ how were you feeling?
A. I was tired, I was feeling tired. I was relaxed cos I've finally sat down, sort of ‑ ‑
The appellant gave a detailed description of what he had done on the day in question. He had got up at 5.30 am and left for Bunbury at approximately 6.15 pm. He had worked all day and although he at first thought he had left Bunbury at 8.30 pm, he realised that it must have been later if the accident had occurred at about 10.30 pm. During the day he had consumed two sandwiches, a packet of chips and two Carlton mid‑strength stubbies of beer. He said he had felt unwell during the day and did not feel like drinking. He had first claimed that he was fit enough to drive home but as I have indicated, later conceded that he probably should not have been driving and should have pulled over and had a sleep.

Sentencing

The learned sentencing judge recited the facts of the case as I have outlined them. Her Honour then dealt with matters personal to the offender. He was 29 years of age. He had a record of criminal convictions which related to motor vehicle offences. He was convicted in the Margaret River Children's Court on 4 February 1994 of dangerous driving, driving a motor vehicle with a blood alcohol level in excess of 0.02%, and driving contrary to the provisions of an extraordinary motor driver's licence. In 1998, he was convicted of refusing a breath test. All convictions, apart from the refusal of the breath test, were Children's Court convictions. The learned sentencing judge acknowledged that.
The facts of the dangerous driving conviction were recounted. The appellant had been driving a Landrover in Prevelly Park in the Margaret River area and had driven too fast around a bend, in consequence of which he had got onto the gravel and been involved in a rollover. The learned sentencing judge acknowledged, however, that there were no traffic convictions or convictions of any sort sustained by the appellant since the age of 21 years.
The appellant was a single man living alone. He was a qualified carpenter and joiner and had a good work history. In 2004 he commenced his own business which imported and erected gazebos. He employed up to six people in a busy season.
The learned sentencing judge was concerned at the fact that the appellant's driving had occasioned the deaths of three persons. Reference was made to a number of reported decisions and particularly to Kay v The Queen [2004] WASCA 222; (2004) 147 A Crim R 401 where the question of multiple deaths was dealt with in the Court of Criminal Appeal. I will make further reference to that case.
The learned sentencing judge considered that the fact that three persons had lost their lives was 'an important part of the case'. Her Honour made references to the victim impact statements of a number of relatives of the deceased.

The learned sentencing judge then concluded:
(a)Based on the appellant's answers in the record of interview, she was satisfied beyond reasonable doubt that the appellant was aware that there was a fault in his driving or in his trailer on the night in question.
(b)She was satisfied beyond reasonable doubt that the appellant knew he was tired, somewhat unwell and had eaten nothing for a number of hours.
(c)The appellant had ample opportunity to pull over and consider the manner of his driving.
(d)The appellant must have been well aware that as he swerved to the left his vehicle was leaving the roadway because his tyres would have come into contact with the rumble strip and he would have been aware that he was overcompensating when he swerved back to the centre line.
(e)The appellant's tiredness had caused him to exercise extremely poor judgment in a situation where he was clearly warned repeatedly by another road user that there was a problem with his driving or with his trailer.
(f)Instead of pulling over as he should have done, he kept going because he wanted to get home.
(g)By doing so, he had shown a selfish disregard for other road users and this put his dangerous driving into the more serious category for the purpose of sentencing.
(h)There was no remorse that could be taken into account because the appellant had entered pleas of not guilty. On the other hand, he was a person of prior good character and deeply regretted what had happened that night.
The learned sentencing judge acknowledged that the appellant was a person who had, until this incident, been well regarded in the community. Her Honour accepted that the appellant had suffered deep shock as a result of witnessing the accident scene and later realising what he had done.
In sentencing the appellant the learned sentencing judge stated that the sentences to be imposed must be commensurate with the seriousness of the offences and the circumstances of their commission. She took into account that three people had died. She looked carefully at the matters in mitigation. She concluded that personal and general deterrence were of importance and she stated that it had to be reaffirmed to the community that persons who put other road users at risk by driving when knowingly tired, and failing to respond when warned by other road users of the risk they were creating, must receive deterrent penalties.
The learned sentencing judge concluded that a sentence of imprisonment to be served immediately was inevitable. As I have said, the sentences imposed were 1 year 8 months' imprisonment on each count to be served cumulatively.

Grounds of appeal

Ground 1

The first ground of appeal contends that the learned sentencing judge erred in finding that the appellant showed no remorse which could be taken into account. It was submitted that the appellant showed remorse and contrition and that this was demonstrated by the fact that he had stopped his vehicle, but then shocked by what he had seen had driven on. It was also submitted that he had recognised that in hindsight he was too tired to drive, that he had cooperated with police and that character references tendered on his behalf demonstrated remorse.
As I apprehend it, all that the learned sentencing judge was saying was that there was an absence of remorse occasioned by the fact that the appellant had pleaded not guilty. This was not something for which he could be penalised, but the normal conclusion that a plea of guilty is entered for reasons of remorse, acceptance of responsibility and facilitation of the course of justice (Cameron v The Queen [2002] HCA 6; (2002) 209 CLR 339, [11] (Gaudron, Gummow and Callinan JJ)) was not present.
The learned sentencing judge took full account of the fact that the appellant deeply regretted what had happened, but this was a different thing from remorse in the context of a plea of guilty. The learned sentencing judge's observations about remorse were directly related to the plea.
In any event, it seems apparent from the transcript of the video record of interview that the appellant's behaviour immediately after the collision was inconsistent with immediate remorse.
In my view, there is no substance in the first ground of appeal.

Ground 3

This ground contends that the learned sentencing judge erred in fact in concluding that the appellant had ignored repeated warnings about his driving and was aware of fault in his driving.
In my view, it was open to the learned sentencing judge to reach the conclusions she did. The appellant himself conceded that he had been warned about something by the flashing of lights behind his vehicle. In his record of interview, he said:
Q. Now you said - - you said there was somebody flashing their lights because you - - because what? You thought that they ‑ ‑
A. I thought there was something wrong with the - - with the rear of the trailer or something had fallen off. So ‑ ‑
Q. Did you stop?
A. No, I indicated to pull over, as they passed me ‑ ‑
Q. Yep.
A. - - you know, so basically saying to them, you know, pull over and - - and let us know what's wrong.
Q. But did - - did you pull over so that they could let you know what was wrong?
A. They didn't pull over.
Q. But did you?
A. No.
...
Q. Okay. Now, did - - the people that were - - that were behind you flashing their lights and then came past you, did they try and attract your attention in any way?
A. Yeah, well just flashing - -
Q. Other - - other than flashing their lights?
A. No.
Q. Anybody in the vehicle as - - as they went past you, did anybody in the vehicle look at you or - - or point at anything or - - or try and attract your attention?
A. Yeah, well they could have, yeah.
Q. But did they?
A. But I - - I - - did they?
Q. Yeah.
A. Well, I - - I can't remember. I - - I think they may have, yes, but you know, I - - I wasn't sure.
In my opinion, the admissions of the appellant lead unequivocally to the inference that he understood that somebody was concerned about his driving. Although he said that he thought somebody may have been trying to bring to his attention the fact that there was something wrong with the rear of his trailer, it is apparent that he took no steps to stop and investigate his trailer, but proceeded on. If he truly thought he might only have had a trailer problem, it is inconceivable that he would not have stopped to check the trailer.
The action of somebody flashing car lights at him, trying to attract his attention as they went past, must have brought to the attention of the appellant the fact that other road users were concerned about his driving on the roadway. The fact that he took no steps to do anything about it leaves open the conclusion that the appellant had ignored at least that warning about his driving and that he was aware that there was fault in his driving.
More importantly, there was evidence at trial from David Pike. He said that he was a 16‑year‑old student and was 14 years of age at the time of the incident. He was with his family who were travelling in two separate vehicles in a northerly direction on the Old Coast Road on Australia Day 2006. His father was driving one vehicle and his mother another. At one stage, his father came up behind a vehicle and he noticed that the vehicle in front of him was swerving across the rumble strip and then back to the second lane. His evidence was in the following terms:
So he was swerving, are you saying on to the rumble strip?‑‑‑It swerved off the road on to the rumble strip and then it come across back on to that lane and then cross over to the second lane and then come back.
All right. It was going to the right on to the second lane?‑‑‑Yep, yep.
All right. And you are describing a dual carriageway at that point?‑‑‑Yes.
You noticed that. Did your father also notice that?‑‑‑Yes, yes.
Did your father do something about that?‑‑‑Yes.
What did he do?‑‑‑We tried to move over to the second lane and come up to the truck that was there - the trailer and the ute and we tried to beep our horn and get in so we could have a look at the driver and tell him to slow down but we couldn't as he swerved so we had to move back.
...
Did something happen again after that?‑‑‑We tried again and this time we did and we started tooting the horn and I tried to wind my window down to tell him to slow down but ‑ ‑ ‑
Where were you when the horn was tooted and your window ‑ ‑ ‑?‑‑‑Parallel to the ute and the trailer.
You were alongside on the right‑hand side?‑‑‑Yep.
Did you stay there, did you fall back or go ahead?‑‑‑We went ahead.
David Pike said that, having got ahead of the vehicle towing the trailer, his father turned into the left lane (it there being a dual carriageway), put on his hazard lights and tried to slow down the utility which he had passed. His utility did not slow down. The vehicle driven by Mr Pike came to a stop on a gravel road, but the utility and trailer continued on. Mr Pike then resumed his journey on the Old Coast Road, travelling again behind the utility towing the trailer. David Pike observed that it was still swerving. It was then still in the dual carriageway. He described the swerving in the following way:
And can you describe how it was swerving?‑‑‑It would still go to the left of the road and on to the rumble strip and then it would cross back over because it was still the dual lane so it would cross over to the second lane and then come back.
There were just two lanes now, is that right?‑‑‑Yes, there was still two lanes, yes.
You said it crossed over, how far did it seem - did you see it cross over? Are you able to describe that or not?‑‑‑Not maybe that much.
YEATS DCJ: Can you just ‑ ‑ ‑
DEMPSTER, MR: Can you just tell me with arms?‑‑‑A metre.
What David Pike saw next was as follows:
What was the next thing you were aware of?‑‑‑We went into the single lane as I already said, an oncoming car came and the truck went back into its own lane but before it came the oncoming car hit, I believe the back of the trailer and then swerved into us.
When it swerved into you, can you describe the position of the car?‑‑‑It was sidewards to us.
All right. When it collided with your vehicle did it collide with the front, the side or ‑ ‑ ‑?‑‑‑Front.
It is clear that it was Mr Pike's vehicle which overtook the appellant's vehicle and trailer. The appellant in his record of interview contended that the vehicle which had passed him did not pull over, but on David Pike's evidence it clearly did.
In my opinion, the learned sentencing judge was entitled to conclude beyond reasonable doubt that the appellant had ignored repeated warnings about his driving and was aware of fault in his driving. The evidence of David Pike establishes that an attempt was made by his father to get the appellant to pull up or pull over, but without success. The appellant's account of the overtaking vehicle travelling on and not stopping cannot be correct. David Pike was not challenged in cross‑examination about this.
From the evidence of David Pike and the admissions of the appellant, it was, in my view, open to the learned sentencing judge to conclude beyond reasonable doubt that the appellant must have been aware of the fact that he was being warned about his driving and that his driving was at fault, but he took no notice of the warning. Because these findings of fact were open on the evidence, I would dismiss ground 3.

Ground 4

This ground contends that the learned sentencing judge erred in concluding that the appellant's driving fell into the more serious category of dangerous driving.
The more serious category of dangerous driving is that in which a selfish disregard for the safety of other road users is shown.
In my opinion, it was open to the learned sentencing judge to reach the conclusion she did.
The appellant admitted that he was aware of the fact that he was too tired to have been driving his vehicle and that he should have pulled over and had a sleep. He qualified the admission by saying that 'probably' he was not driving safely, but conceded that he was tired and should have pulled over to have a sleep.
Although it is contended that this was an admission with the benefit of hindsight, the admission needs to be read in the context of the preceding question, which asked the appellant whether he was surprised that the driver of another vehicle was trying to stop him. He said that he was not. The appellant admitted that he had been warned by an overtaking vehicle, although he claimed not to have appreciated the significance of the warning.
There was enough evidence to establish that the appellant was driving with a selfish disregard for the safety of other users of the roadway. He was undoubtedly driving in a state of fatigue, as he himself admitted. He was aware of the fact that he was being warned about his driving. Although he claimed that he thought there must have been something wrong with the trailer, the fact that he did not stop to investigate the trailer takes away from this proposition. Furthermore, the appellant was clearly wrong when he said to investigating police that the vehicle which had overtaken him had continued on. The evidence of David Pike, which the learned sentencing judge was entitled to accept, established that his father had stopped on a gravel road on the side of the roadway.
There is no doubt that driving in a state of fatigue is a serious breach of the duty of care that the driver of a vehicle owes to other road users. The appellant had been working a long day in Bunbury, had consumed very little food and was returning home late at night. He was tired and he knew he was tired. Others tried to bring to his attention the fact that there was fault in his driving, occasioned by his swaying from side to side on the Old Coast Road. He ignored the warnings that he was given. His driving could only be characterised as a selfish disregard for the safety of other road users, and so it proved to be.
In Wood v The Queen [2002] WASCA 95; (2002) 130 A Crim R 518, I endeavoured to point out the distinction between cases in which an accident has arisen through momentary inattention or misjudgment and cases where the accused has driven in a manner which has shown a selfish disregard for the safety of other road users or with a degree of recklessness:
In the course of his sentencing comments, the learned trial judge understood that there are two categories of dangerous driving causing death which are commonly experienced in the courts. They are cases in which an accident has arisen through momentary inattention or mis‑judgment and cases where the accused has driven in a manner which has shown a selfish disregard for the safety of other road users or with a degree of recklessness. In Smith [1976] WAR 97 at 107‑108, Jackson CJ made this clear in the following passage:
'The Court of Appeal in England in Guilfoyle [1973] 2 All ER 844; (1973) 57 Cr App R 549, recently considered the subject of the penalties to be imposed for this offence, and pointed out that cases of this kind fall into two broad categories; "first, those in which the accident has arisen through momentary inattention or misjudgement, and secondly those in which the accused has driven in a manner which has shown a selfish disregard for the safety of other road users or of his passengers or with a degree of recklessness. A sub‑division of this category is provided by the cases in which an accident has been caused or contributed to by the accused's consumption of alcohol or drugs"; and that offenders may have good or bad driving records; the Court then said (at 845): "In the judgment of this Court an offender who has been convicted because of momentary inattention or mis‑judgment and who has a good driving record should normally be fined and disqualified from holding or obtaining a driving licence for the minimum statutory period or a period not greatly exceeding it, unless of course there are special reasons for not disqualifying. If his driving record is indifferent, the period of disqualification should be longer, say two to four years, and if it is bad, he should be put off the road for a long time. For those who have caused a fatal accident through a selfish disregard for the safety of other road users or their passengers or who have driven recklessly, a custodial sentence with a long period of disqualification may well be appropriate, and if this kind of driving is coupled with a bad driving record the period of disqualification should be such as will relieve the public of a potential danger for a very long time indeed." '
I would, with respect, adopt and follow these views. It will be seen that this case falls into the second, or more serious class of offences, even though the offender has a good driving record. For the more serious category, as the Court of Appeal said, a custodial sentence may well be appropriate. [104]
In Wood v The Queen, the appellant's driving was considered to fall within the more serious category. The appellant was convicted of dangerous driving causing death, in circumstances where she was sleep‑deprived and on her own admission she should not have been on the roadway. She was driving on the Mitchell Freeway, Carine, in circumstances in which she had gone some 23 hours without sleep and in the 48 hours before the incident, she had been asleep for only five to seven hours. Her vehicle was travelling north on the freeway and had drifted from the left‑hand lane into the emergency lane where it struck the deceased who was walking in the emergency lane to recover a pair of sunglasses he had dropped from his motorcycle.
As I pointed out at [107], the accident in which she was involved occurred because she fell asleep at the wheel due to sleep deprivation, not because of any momentary inattention to driving or any mis‑judgment on the roadway.
The appellant in Wood v The Queen was sleep‑deprived and it was her driving on the Mitchell Freeway on those circumstances which put her driving into the more serious category of dangerous driving causing death. In the present case, the appellant was not sleep‑deprived. Nobody suggested that he had not slept sufficiently the night before. However, he was clearly tired from the long day's work in Bunbury and, on his own admission, he should have pulled over and had a sleep. He admitted to feeling tired, but he drove on, notwithstanding the fact that another motorist did everything possible to get him to stop.
In these circumstances, it seems clear to me that the appellant's driving was within the category of a selfish disregard for the safety of other road users.
In Kay v The Queen, I concluded (at [52]) that the appellant's driving fell within the category of a selfish disregard for the safety of other road users because he was driving a road train through a country town at a speed which created a potential danger, and in circumstances in which he disregarded the safety of others by failing to keep a proper lookout. I pointed out, however, at [53], that it is a mistake to concentrate too closely on categories of dangerous driving causing death.
Appreciating that it is unwise to concentrate too closely on these categories, it seems to me that in the present case the appellant's driving clearly fell within the second or more serious category of dangerous driving. It could not be described as a case of mere momentary inattention. All the evidence pointed to a determination on the part of the appellant to continue driving in circumstances in which he knew that he was probably too tired to be driving and where other road users were warning him that his driving was inappropriate and dangerous to other road users.
In my opinion, there is no substance in ground 4.

Ground 5

This ground contends that the sentence exceeded the range properly applicable to the case, having regard to the level of seriousness of the offending and the circumstances of the particular case. A number of particulars are given. First it is said that the deaths were the product of a single and unintended incident. Second, it is pointed out that the appellant was not affected by alcohol or drugs and that circumstance of aggravation was therefore absent. Third, it is said that the appellant did not fully appreciate that his fatigue would have affected his manner of driving. Fourth, it is claimed that the appellant was young and had generally good antecedents. Finally, it is said that he had stopped to try and assist the deceased and had telephoned the police soon after the incident to assist in enquiries.

It is true that there is no evidence of alcohol or drugs which contributed to the dangerous driving in this case. There have been much worse cases. However, the absence of alcohol or drugs does not, of itself, mean that the sentences imposed were excessive.
Nor does the fact that the appellant was young and had generally good antecedents mean that the sentences were excessive. In cases of this nature, the offender will often be young and have generally good antecedents. In this case, the appellant did have a conviction in the Children's Court for dangerous driving. It was a factor to take into account, although (as the learned sentencing judge acknowledged) it did not weigh greatly in the balance.
I do not accept that the appellant did not 'fully' appreciate that his fatigue would have affected his manner of driving. His answers to questions put to him by investigating police reveal that he was aware of the fact that he should not have been driving.
I do not accept that in any real sense the appellant stopped to try and assist the deceased. If the appellant gave Mr Pike any assistance, it must have been very limited, because Mrs Anne‑Marie Pike, who was travelling behind her husband's vehicle, detailed the aftermath of the collision as follows:
You described what happened as a result of the collision between this car, oncoming car and the van. Dealing with the oncoming car first of all, did you see where that ended up?‑‑‑It was right in front of my husband's van, really, sort of touching it facing towards the road away from the verge.
And in which direction was it facing then?‑‑‑Towards the road with its back towards the side of the road, the verge.
All right. So it's facing north, no, correct?‑‑‑No, it was sort of facing east really or north east.
North east. You said, I think, that car was alight?‑‑‑It had exploded.
What about the van, was the van affected by fire?‑‑‑The front part of the van was on fire.
Was your husband Colin able to get out straightaway?‑‑‑No, he was trapped because the vehicle was on top of his leg.
What about your son David who was in the front passenger seat?‑‑‑He was able to get out.
You saw that, you assisted in that?‑‑‑Yeah, when I ran back to the car they were both sitting in the car. Because we had gas bottles we were concerned about getting them out of the car so I asked David to get out of the car because it was on fire.
All right, and you mentioned a danger from gas bottles, did something happen in relation to that, in relation to the position of the vehicle?‑‑‑We had gas bottles in that because we'd done a show. We had the gas bottles and the guy who'd given them to us said if you roll your car make sure you get away from the car. Because there was flames we thought it might all explode.
Well you mentioned that Colin wasn't able to get out of the car, at least initially. What happened in relation to that?‑‑‑Well we spent some time putting the fire out, putting water on it and eventually a tow‑truck driver came along and tried pulling it one way and then pulled it the other way. And we eventually got Colin out and then, because of the gas bottles, they moved the car away from where we were because when we moved Colin we put it right near the - him right near the accident. So the tow-truck driver pulled Colin's van away from where we were, in case ‑ ‑ ‑
And in which direction did he pull the van away?‑‑‑Just further up the road, north.
All right. That's heading toward Perth. Is that right?‑‑‑Yeah.
And obviously others were stopping and helping?‑‑‑There were people everywhere at that stage.
Was anyone able to assist the passengers in the burning car which had collided with the van?‑‑‑When I - after I had spoken to Colin and David, I ran around the other side because we couldn't get into the car from the - the other car from the front but as I approached it it was - I clearly could see that they were both dead in their vehicle and I couldn't - it was too hot anyway to get close to the car.
After the time of this collision and you came over to the vehicles you have described, were you aware of any other vehicle on the left‑hand side of the road ahead at all?‑‑‑There was nothing ahead of - on my side of the road. No.
Mrs Pike makes no mention of a person matching the appellant's description at the scene. I conclude from the appellant's record of interview that he may have had a look at what had happened and made some attempt to help Mr Pike, but it must have been short‑lived. He then basically left the scene. He did not telephone police as soon as possible, but contacted police in the early hours of the following morning.
This leaves only the question of the number of deaths. In the appellant's written submissions, it is complained that the learned sentencing judge 'appeared to give primacy to the fact that there were multiple victims'. In fact, the learned sentencing judge did not give primacy to this matter. That word was never used. The learned sentencing judge said that an important part of the case was that three people had lost their lives. This was correct. It was an important aspect of the case.
Authority in this court clearly establishes that the number of fatalities is a significant factor in sentencing in these cases. I have recently (Owen and Wheeler JJA agreeing) dealt with the matter in Taylor v The State of Western Australia [2007] WASCA 218; (2007) 48 MVR 562 where I reviewed what I had said in Kay v The Queen in the following terms:
In Kay v The Queen [2004] WASCA 222; (2004) 147 A Crim R 401, I gave attention to the issue of multiple deaths in the context of a dangerous driving causing death/dangerous driving causing grievous bodily harm case. At [56], I made reference to what Lee CJ at CL had said in R v Wilkins (1988) 38 A Crim R 445 at 449 ‑ 450. I adopted and followed the following passage:
'Parliament has laid down in s 52A Crimes Act 1900 (NSW) that the maximum penalty for culpable driving involving driving in a manner dangerous and causing death is five years and it seems extraordinary at the outset that it can be said that, whether you kill one or whether you kill 50, the penalty is to be five years, provided you do it on the one occasion.
The reality on the situation surely is that drivers of all vehicles on the road must be taken to know that they can do enormous damage to life and limb if they drive irresponsibly, drive in a manner dangerous to the public.
The large vehicles which operate on the roads today - and the appellant's vehicle is in that class - are especially capable of producing enormous damage to human life if driven irresponsibly and it would be extraordinary that a driver, knowing that he may, if he gets himself onto the wrong side of the road on a main highway, kill one or four or ten or a dozen people or a bus full of people, can come before a Court and claim that he should be sentenced and kept in gaol in respect of the death of only one. To me that itself is demonstrative of the fact that the practice cannot be an inflexible practice and that it must give way to reason and commonsense. The criminality and gravity of all the offences is not to be judged merely as if the appellant were charged under s 4(1) of the Motor Traffic Act 1909 (NSW) with dangerous driving. To mete out a penalty that recognises the actual consequences of his action is not unjust or unfair, indeed, it is wholly in accord with the ordinary principles of justice. Where the maximum penalty for any one offence is insufficient to reflect the gravity of the crime committed the court not only may but ought to impose cumulative sentences.'
To the extent that anything said by Lee CJ at CL in R v Wilkins was in conflict with the observations of Olsson J and Williams J in R v Snewin (1997) 190 LSJS 487, I said (at [59]) that I preferred to follow the views of Lee CJ at CL.
In R v Snewin, there were observations to the effect that it should not be overlooked that the appellant in that case should be punished for his conduct in respect of one incident, and not in respect of six separate deaths. That is a conclusion that I cannot accept. I far prefer the approach of Lee CJ at CL. It would indeed be extraordinary if the maximum penalty that could be imposed in this case was governed by the fact that the five fatalities occurred in 'one transaction'.
My observations in Kay were agreed to by both Murray and Wheeler JJ. I see no reason why I should reach any different conclusion in this case. It follows that, in my view, the learned sentencing judge made no error of principle in concluding that the very high number of fatalities put the case at the upper end of the seriousness of motor vehicle manslaughter cases. [27] ‑ [30]
No attempt was made by counsel for the appellant to challenge these observations. Indeed, counsel conceded that they are a correct statement of the law in this court.
In my opinion, the imposition of cumulative sentences of imprisonment for each of the three counts on the indictment does not offend the principle in Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610. In Pearce, McHugh, Hayne and Callinan JJ concluded:
To the extent to which two offences of which an offender stands convicted contain common elements, it would be wrong to punish that offender twice for the commission of the elements that are common. No doubt that general principle must yield to any contrary legislative intention, but the punishment to be exacted should reflect what an offender has done; it should not be affected by the way in which the boundaries of particular offences are drawn. Often those boundaries will be drawn in a way that means that offences overlap. To punish an offender twice if conduct falls in that area of overlap would be to punish offenders according to the accidents of legislative history, rather than according to their just deserts. [40]
In Pearce, the question was whether the offender should be twice punished for inflicting grievous bodily harm on the one victim. McHugh, Hayne and Callinan JJ held ([41]) that there was nothing in the provisions of the Crimes Act1900 (NSW) to suggest that Parliament intended that an offender such as the appellant in that case should be twice punished for inflicting grievous bodily harm on his victim. It is therefore notable that the court was dealing with the commonality of conduct involving the one victim.
Cases in the New South Wales Court of Appeal since the decision in Pearce have accepted what Lee CJ at CL said in R v Wilkins (1988) 38 A Crim R 445.
In R v Plumb [2003] NSWCCA 359, Wood CJ at CL (with whom Smart AJ agreed) said:
No complaint is made in relation to the sentencing exercise other than for the fact of accumulation. It was submitted that, since the two counts arose out of the same activity, and were so closely connected, they should be regarded as part of the one incident. Consistently with the approach referred to by Street CJ in Regina v Melville (1956) 73 WN (NSW) 579 at 583, it was argued the sentences should, as a consequence, have been directed to be served wholly concurrently.
There is no inflexible rule to the effect of that suggested by the applicant, as was recognised in Regina v Wilkins (1988) 8 MVR 404 where Lee CJ at CL observed:
'I am not satisfied that it should be held that the practice of treating certain circumstances as one enterprise and then not accumulating sentences in respect of offences that come within the ambit of that enterprise is one that must be followed in every case and certainly I am not satisfied that should be followed in the case of s 52A.'
The "practice" to which his Honour referred, in any event, needs to now be understood in the light of the decision of the High Court in Pearce v The Queen (1998) 194 CLR 610 where the majority said:
'A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of accumulation or concurrence as well, of course, as questions of totality.'
This decision marked an end to the approach previously followed, which had support in Mill v R (1988) 166 CLR 59 and in Regina v Holder and Johnston [1983] 3 NSWLR 245, which placed the focus upon the practical significance of the overall sentencing order, rather than upon its individual components.
In accordance with the Pearce approach, sentences considered appropriate for each offence are to be determined, and the overall objective criminality is then to be taken into account when considering whether they should be served concurrently or cumulatively upon one another, either in part or totally.
The decision in Pearce is better suited to a sentencing exercise that involves quite separate offences than it is with one that involves a number of offences arising out of a single event, or closely connected events. However, it currently represents the law in relation to any sentencing exercise that involves more than one count.
The decision whether to direct accumulation or concurrency of sentence is discretionary, and it is one where Simpson J noted in Regina v Hammoud (2000) 118 A Crim R 66, that judges can legitimately reach different views.
There are other cases, decided in comparatively recent times, where concurrent sentences have been imposed for multiple offences arising out of the one motor vehicle accident: for example, see Regina v McDonald NSWCCA 12 October 1998 Regina v Comber NSWCCA 11 November 1998 Regina v Sen [1999] NSWCCA 109 Regina v Gleeson [2000] NSWCCA 108 Regina v Dunlop [2001] NSWCCA 435 and Regina v Bishop [2002] NSWCCA 263. In none of these decisions, which include Crown appeals as well as applications for leave to appeal against severity, was the point that arises in this case specifically addressed, it being dealt with sub silentio.
In Regina v Skrill [2002] NSWCCA 484 the court intervened in a Crown appeal in a case where there were multiple counts arising out of the one event and directed an accumulation of sentence. In that case Carruthers AJ, with whom Hulme J agreed, observed that in this kind of case, where there was more than one victim, the customary reference to a "single discrete episode of criminality" is of little, if any, assistance. Together with the decision in Regina v Wilkins it was a case that departed from the "practice", which it was here suggested had been if not universal then almost universal.
I am not persuaded in the present case, having regard to the very serious injuries inflicted on the two victims, that some degree of accumulation was not called for. Otherwise it is difficult to see how the overall objective criminality could be accommodated within the confines of Pearce. [12] ‑ [21]
In R v Skrill [2002] NSWCCA 484; (2002) 38 MVR 175, Carruthers AJ (Hulme J concurring) said:
This court acknowledged in R v Hammoud [(2000) 118 A Crim R 66] at 67, that since Pearce the question of whether to accumulate sentences for multiple offences has taken on a new dimension. In that case Simpson J said that except perhaps in cases of multiple offences committed as part of a single discrete episode of criminality, the sentence for an individual offence is to reflect the criminality involved in the offence untainted by reference to the other offences for which the offender is to be sentenced.
This proposition raises of course the perplexing question of what is a "single discrete episode of criminality". Basically, in any particular case, this is a question of fact to be resolved by the sentencing judge. However, the resolution of the question in any particular case may well give rise to differing judicial opinions. In the instant case the sentencing judge did not explain why he deemed it appropriate to make the sentences concurrent.
In cases such as the present where more than one passenger in a motor vehicle involved in a serious accident is killed or injured by the same act of criminality the reference to a "single discrete episode of criminality" is really of little assistance - if any.
This court in R v AEM Snr [2002] NSWCCA 58; BC200200785 stressed the need in cases of multiple offences (in those cases sexual offences), for the sentencing judge to determine whether there were discrete features of the individual offences which required accumulation, at least in part.
I acknowledge of course that those three cases were decided after the sentences in the instant case. Nevertheless it is appropriate for this court to determine whether there were discrete features of the individual offences which required accumulation at least in part.
One of the aggravating features enunciated by the Chief Justice in Whyte [(2002) 55 NSWLR 252], which I have quoted above, is a reference to the number of people put at risk. Speaking generally, of course, every user of the road in proximate vicinity to the vehicle being driven by the respondent on the night in question was put at risk. However, of course, his four passengers were specifically put at risk and he owed them each a duty of care.
Thus the offences were committed against different victims and the offences are of a different nature containing different degrees of seriousness reflected, of course, in the maximum penalties available. [69] ‑ [75]
See also Kennewell v Rand [2006] ACTCA 10, (two counts of causing grievous bodily harm to a person by the culpable driving of a motor vehicle) where Gray, Connolly and Lander JJ said:
We accept that there must be some circumstances where concurrent sentences would not be adequate to address the criminality of the offender's behaviour. In those cases (and in our respectful view this is not one of them), the sentences or part of the sentences may be accumulated. It follows that we consider there is no rule or principle that in cases of this kind the sentence should be concurrent but that is the practice but because it is only that, the practice is not inflexible. That seems to us consistent with Pearce v The Queen (1998) 194 CLR 610. [55]
In R v Penn (1994) 19 MVR 367, the Court of Criminal Appeal of Victoria (Crockett, Southwell and Vincent JJ) expressed agreement with the views of Lee CJ at CL in R v Wilkins in the following terms:
The contention advanced in support of the first ground was that when a number of offences arise out of the same act then concurrent sentences should be imposed. Conjointly with that submission it was said that where more than one person has been killed as the result of a single act of culpable driving that fact should for sentencing purposes be recognised by an increase in the sentence imposed on each count and not by cumulation directions. Support for this submission was said to be found in an unreported decision of this court in R v Woolnough (CCA(Vic), 4 June 1981, unreported. In that case Crockett J, when dealing with an aspect of the case with which the other members of the court were in agreement, observed:
'In my view, the two offences [the death of each of two occupants of a car caused by the one act of culpable driving] were part of the one criminal episode, and in such a case it is, I consider, proper to order that the sentences be served concurrently and, for my part I would not criticise the concurrency order as such.'
We do not consider that that passage expresses or was intended to express some principle of law. His Honour, in declaring that he was of the opinion that in that case it was proper for the sentencing judge to have allowed full concurrency was not saying that it would have been improper to have ordered some period of cumulation. Clearly it is a matter for consideration in the light of the circumstances of each particular case: see R v Mochon (CCA(Vic), 5 February 1991, unreported). What is necessary is that the judge pay due regard to the principle of totality: Mill v R (1988) 166 CLR 59 at 62-3; 83 ALR 1 at 3-4. Insofar as it might be thought that the views we have stated are at variance with those expressed by Allen J in R v Wilkins (1988) 38 A Crim R 445 (a decision of the Court of Criminal Appeal of New South Wales) we prefer the opinion of Lee CJ at CL that the ordering of total concurrency in the case of multiple offences resulting from the one "incident'" is no more than a "practice". In particular, we do not consider that in such a case it is, as Allen J thought, a prerequisite to the making of a direction for partial cumulation that "extraordinary circumstances" be identified. (368 ‑ 369)
This decision was delivered prior to Pearce, but, consistent with the decisions in the New South Wales Court of Appeal, the principle remains the same.

It follows, in my view, that even without the application of s 11(1) of the Sentencing Act1995, and the decision in Pearce notwithstanding there is ample authority to support the view that in appropriate cases of dangerous driving causing death where more than one victim has been killed, accumulation, or a degree of accumulation, of sentences will be appropriate.
In the present case, it was open as a matter of law to the learned sentencing judge to accumulate the sentences on each count, and, in my view, they were properly accumulated. Three persons lost their lives in an horrific accident caused by the dangerous driving of the appellant. Each deceased was owed a duty of care by the appellant and he breached that duty in each case. The question whether the accumulation of the sentences breached the totality principle will be dealt with below.
I do not consider there is any substance to ground 5.

Ground 6

This ground contends that the total effective sentence did not adequately reflect the totality principle and, as a result, was manifestly excessive.
It is conceded in the particulars that no individual sentence was, in itself, excessive, but it is said that by ordering accumulation of the three sentences the totality principle was breached. There is a concession in the written submissions that some cumulation of individual sentences may have been appropriate.
It is unnecessary to recite again the principles that govern the so‑called 'totality principle'. It is sufficient to repeat what I said in Taylor v The Queen:
It is a principle well understood in sentencing and does not require repetition. It is sufficient to refer to the statement of Ipp J in Jarvis v The Queen (1993) 20 WAR 201, 207, to the following effect:
'The overriding principle is accordingly that the aggregate sentence (even when punishment is being imposed for multiple offences) should fairly and justly reflect the total criminality of the offender's conduct: see Veen v The Queen (No 2) (1988) 164 CLR 465; Evangelista v The Queen [Unreported, WASCCCA, Library No 920051, 30 January 1991]; R v Glenister [1980] 2 NSWLR 597 at 612; Lade v Mamarika (1986) 83 FLR 312.'
Ipp J (at 206 ‑ 207) also pointed out that in taking a last look at the total period of imprisonment imposed, the court must apply the principle that the sentence should be proportionate to the degree of criminality involved and the crushing effect of a term of imprisonment is a factor to be taken into account. [48] ‑ [49]
In the present case, the appellant was sentenced to 18 months' imprisonment on each of three counts. The aggregate penalty was thus 5 years' imprisonment.
In my opinion, this was a bad case. The words that I used in Wood seem to me to be appropriate to it:
To drive on a public roadway when so fatigued, as the applicant was, constituted [a selfish disregard for the safety of other road users] ... Fatigue clearly is a major contributory factor to fatalities on the road and those who drive in the knowledge that they are seriously fatigued must expect that a sentence commensurate with that behaviour will be imposed. [120]
The appellant's driving occasioned the death of three unsuspecting road users who were proceeding along the Old Coast Road on the night of Australia Day 2006. The impact of their deaths on their relatives was noted by the learned sentencing judge when she referred to the victim impact statements. The statement of Mrs Tracey Sherwood, mother of the deceased, Brent Ryan Jones, is particularly poignant.
Numerous statements have been made over the years about the distress caused within the community by reason of deaths resulting from the driving of motor vehicles in circumstances that constitute either manslaughter or dangerous driving causing death (see, for example, Punch v The Queen (1993) 9 WAR 486, 497 (Murray J); Ainsworth v D (a child) (1992) 7 WAR 102, 115 ‑ 116 (Malcolm CJ)).
In Kay v The Queen, I made reference to Malcolm CJ's observations in Ainsworth v D (A Child) and added (at [63]):
These observations are particularly pertinent to the 21st Century. In 2004 there is even more awareness of the misery caused to the families of victims of motor vehicle related deaths than there was in 1993. Road safety campaigns over the last decade have increased the need for vigilance whilst driving on public roads. Victim support groups have highlighted to society the terrible toll on family life brought about by such killings on the roads.
Three years have passed since Kay v The Queen was decided. Road safety campaigns in the intervening years have concentrated on driver fatigue on public roads. In Western Australia, where long distances are travelled on public roads, driver fatigue has become a critical issue. This case illustrates what shocking consequences can result when a driver suffering fatigue causes a collision with an oncoming vehicle on a country road. Not only were two persons killed in that oncoming vehicle, but it spun into the path of the vehicle following the appellant and caused the death of Colin Pike. Ironically, he was the person who was trying to bring to the attention of the appellant the fact that his driving was unsafe. He had done all that he could do to warn the appellant, but, in the end, he was one of the three persons who lost his life in the fatal accident caused by the dangerous driving of the appellant. In these circumstances, I consider the appellant's driving to have been in the most serious category of dangerous driving causing death and to have been a bad case within that category.
In Kay v The Queen, I made reference (at [64] et seq) to a number of decided cases in New South Wales, Victoria, South Australia and Western Australia where sentences had been imposed for dangerous driving causing death, dangerous driving causing grievous bodily harm and/or bodily harm. In Victoria, sentences of 9 years' imprisonment had been imposed for the offence of culpable driving causing death. However, the maximum sentence there is 20 years' imprisonment. In New South Wales, there have been sentences of 7 years for aggravated dangerous driving causing death. The maximum is 14 years' imprisonment. South Australian sentences are lower.
I repeat what I said in Kay v The Queen:
[I]t is necessary to recognise that there are different sentencing regimes applicable in different Australian States and what might be regarded as the norm for a motor vehicle manslaughter or offence of dangerous driving causing death in one State, may not necessarily be appropriate in another. Examples of cases from this State and other States provide only guidance on appropriate sentences. The cases vary widely in their facts and they must be applied with considerable care: see Allen v The Queen (unreported, Court of Criminal Appeal, WA, Kennedy, Pigeon and Ipp JJ, Library No 950215, 27 April 1995) at 6. I can see no reason why, in a bad case of dangerous driving causing death and/or grievous bodily harm involving multiple deaths or serious injury, a sentence of 10 years or more should not be imposed. [65]
In Kay v The Queen, an aggregate sentence of 6 years' imprisonment was imposed in circumstances where the appellant had caused the death of two persons, grievous bodily harm to another and bodily harm to a fourth. He had done so in circumstances where he had driven a road train through the town of Merredin at a speed which was excessive in the circumstances, and whilst failing to keep a proper lookout and appreciating that he was approaching a rail crossing where there was a vehicle stationary in front of him. He hit the rear of that vehicle and forced it into the path of an oncoming train. It was, therefore, a bad case. The sentence imposed was one year greater than that which was imposed by the learned sentencing judge in the present case.
In this case, I am not persuaded that an aggregate of 5 years' imprisonment was manifestly excessive in the circumstances. Nor am I persuaded that it breached the totality principle, or constituted a crushing sentence in relation to the appellant. The appellant's driving was in the more serious category of dangerous driving causing death and it cannot, in my view, be contended that it was manifestly excessive in the circumstances of the case. I would therefore dismiss ground 6.

Conclusion

In my opinion, the appeal should be dismissed on all grounds.