Gelmi v The State of Western Australia
[2019] WASCA 139
•9 SEPTEMBER 2019
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: GELMI -v- THE STATE OF WESTERN AUSTRALIA [2019] WASCA 139
CORAM: QUINLAN CJ
BUSS P
MAZZA JA
HEARD: 20 JUNE 2019
DELIVERED : 9 SEPTEMBER 2019
FILE NO/S: CACR 176 of 2018
BETWEEN: PAUL RAMON GELMI
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram: JENKINS J
File Number : INS 7 of 2018
Catchwords:
Criminal law - Appeal against sentence - Appellant convicted after trial of one count of dangerous driving occasioning death, contrary to s 59(1)(a) of the Road Traffic Act 1974 (WA) - Appellant rode a trail bike on a public road while under the influence of alcohol to such an extent as to be incapable of having proper control of the bike - Victim a child aged 10 years - Victim a pillion passenger on the trail bike - Victim not wearing a helmet - Sentence of 5 years 3 months' imprisonment - Manifest excess
Legislation:
Road Traffic Act 1974 (WA), s 49AB, s 59(1), s 59(3)
Result:
Leave to appeal refused
Appeal dismissed
Category: D
Representation:
Counsel:
| Appellant | : | Ms L B Black |
| Respondent | : | Mr J A Scholz |
Solicitors:
| Appellant | : | Young & Young |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Barbaro v The Queen [2014] HCA 2; (2014) 253 CLR 58
Barron v The State of Western Australia [2010] WASCA 27; (2010) 55 MVR 123
Billing v The State of Western Australia [2017] WASCA 80; (2017) 80 MVR 127
Devine v The State of Western Australia [2010] WASCA 94; (2010) 202 A Crim R 1
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
Gelmi v The State of Western Australia [2018] WASCSR 153
Kirby v The State of Western Australia [2016] WASCA 199; (2016) 78 MVR 380
Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665
Mallet v Mallet [1984] HCA 21; (1984) 156 CLR 605
Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600
Pedersen v The State of Western Australia [2010] WASCA 175
The State of Western Australia v Butler [2009] WASCA 110
The State of Western Australia v Doyle [2017] WASCA 207
The State of Western Australia v Gibbs [2009] WASCA 7; (2009) 192 A Crim R 399
The State of Western Australia v Tittums [2018] WASCA 23; (2018) 83 MVR 476
Vagh v The State of Western Australia [2007] WASCA 17
JUDGMENT OF THE COURT:
The appellant appeals against sentence.
The appellant was charged on indictment with one count which alleged that on 23 October 2016, at Waterloo, the appellant unlawfully killed Haylee Ross (Haylee), contrary to s 280 of the Criminal Code (WA).
On 10 August 2018, after a trial before Jenkins J and a jury, the appellant was convicted of the alternative offence of dangerous driving occasioning death, contrary to s 59(1)(a) of the Road Traffic Act 1974 (WA) (the RT Act).
On 24 August 2018, the trial judge sentenced the appellant to 5 years 3 months' imprisonment, with eligibility for parole. Her Honour also disqualified the appellant from holding a motor driver's licence for a period of three years.
The appellant appeals on the sole ground that the sentence of 5 years 3 months' imprisonment was manifestly excessive.
We would refuse leave to appeal and dismiss the appeal. Our reasons are as follows.
The facts and circumstances of the offending
The trial judge made the following unchallenged findings in her sentencing remarks. See The State of Western Australia v Gelmi.[1]
[1] Gelmi v The State of Western Australia [2018] WASCSR 153.
Haylee was aged 10 years when she was killed. At the time she lived with her father (Mr Ross) and her younger sister, Charlie.
On the morning of Sunday, 23 October 2016, Mr Ross, Haylee, Charlie and a friend of Mr Ross went to the appellant's farm at 240 Clifton Road, Waterloo. The appellant and Mr Ross were good friends. Mr Ross often visited the appellant's farm with Haylee and Charlie.
A long driveway connects a house on the appellant's farm to Clifton Road. Clifton Road joins Forrest Highway to the west and South Western Highway to the east.
Mr Ross, his friend, Haylee and Charlie arrived at the appellant's farm at about midday. The appellant was not at home. He returned soon. The appellant, Mr Ross, his friend, Haylee and Charlie then went to the Eaton Tavern in Mr Ross's vehicle. They arrived at about 12.25 pm and departed about an hour later. The appellant and Mr Ross drank some beer at the Eaton Tavern. Mr Ross drove his vehicle to and from the Eaton Tavern.
After returning to the appellant's farm, the appellant and Mr Ross socialised and drank more alcohol. The appellant did not plan to drive a vehicle that afternoon. At about 2.30 pm the mother of Mr Ross's friend came to the house. She remained for about an hour.
Shortly before the mother of Mr Ross's friend departed, Mr Ross, his friend and Charlie (but not the appellant and Haylee) rode a quad bike elsewhere on the farm. Later, Haylee told the appellant that she wanted to find her father and Charlie. Despite having consumed alcohol throughout the afternoon, the appellant decided to put Haylee on the back of his Yamaha 250 cc trail bike and search for her father and Charlie.
At the trial, defence counsel suggested that the appellant had given in to Haylee's 'badgering'. Her Honour noted that any badgering would not have excused the appellant's actions, but her Honour observed that the appellant did not tell the investigating police that he had been badgered. The appellant merely told the police that Haylee had asked whether she could go and see her father and that the appellant then decided to put her on his trail bike and endeavour to find her father. The bike was in good working order, but it was unregistered. When the appellant bought the bike less than 12 months previously, he had not intended to ride it on public roads.
The appellant did not have a motorcycle licence, but he was an experienced rider both alone and when accompanied by a pillion passenger. The appellant and Haylee mounted the trail bike without wearing helmets. The appellant did not require Haylee to put on a helmet despite a suitable helmet being available in the house.
Her Honour noted that the appellant told the police he understood that 'Mr Ross and Charlie were not going onto the road and that the road did not provide any kind of shortcut to [his] farm' [22]. Her Honour observed that 'there was simply no reason for [the appellant] to be on the road at all or for [him] to be so far from [his] farm' [22].
The trial judge said that, '[f]or reasons unknown', the appellant rode the trail bike along the driveway and onto Clifton Road [14]. He travelled in a south-westerly direction on Clifton Road towards the Forrest Highway. After riding for more than one kilometre from his house, the appellant turned and began to ride towards the farm. At about 4.07 pm, when he was about 800 m from the farm gate, the appellant failed to remain on Clifton Road as he rounded a left-hand bend. The trail bike travelled onto the right-hand side of the road and then onto a grass verge for about 65 m before striking the right side of a small gully on the edge of the verge. The bike crashed. Haylee was thrown from the bike. The bike continued for about 10 m before it came to rest. The appellant was pinned underneath the bike. A lever on the bike pierced his neck. Haylee suffered catastrophic head injuries and died at the scene.
The road surface was bitumen. The width of the road was about 5 m. The speed limit was 110 km per hour. When the crash occurred the weather was fine and clear. The road surface was dry and in good condition.
At the time of the accident the appellant had a blood alcohol concentration of 0.136%.
The trail bike did not have any defects that would have caused the crash. Police found no physical evidence to explain why the bike left the road. An expert from the Main Roads Department examined the road in the vicinity of the crash. The curve radius of the bend was 240 m. A superelevation in the eastbound lane was appropriate. However, a superelevation in the westbound lane was inappropriate. The expert recommended that the road should have a 75 km per hour advisory speed sign on the eastern approach.
Her Honour accepted that the design of the road may have contributed to the appellant 'running off the road once [he] rode onto the right-hand side of it' [21]. However, her Honour also found that, given his familiarity with the road, its design would not have been a problem if the appellant had been sober and able properly to control the trail bike. Her Honour said 'the reality is that because of your state of intoxication, your lack of a motorbike licence, the unregistered condition of your bike and [your] and Haylee's lack of helmets, you should not have been riding at all' [21].
The trial judge's sentencing remarks including in relation to the appellant's personal circumstances
After recounting the facts and circumstances of the offending in her Honour's sentencing remarks, the trial judge made other findings and observations, including in relation to the appellant's personal circumstances, as follows.
On 1 November 2016, the appellant was interviewed by the police. The appellant admitted and appeared to recall events that had occurred before he began riding along his driveway. He told the police that he did not remember the crash.
Her Honour noted that the jury was satisfied beyond reasonable doubt that the appellant was intoxicated to such an extent as to be incapable of having proper control of the trail bike. Her Honour said that was apparent from the following:
(1)your high blood alcohol content;
(2)your decision to ride the bike when there was no need for you to do so;
(3)your decision to ride the bike when you had an unhelmeted child as a pillion passenger;
(4)your decision to ride the bike when it was unregistered and when you did not hold a licence;
(5)you not only rode the bike on a public road, but rode it on the wrong side and then off the edge of the road;
(6)you rode your bike for a distance of at least 50 m through the verge and a small gully without either safely riding it back onto the road or stopping it; and
(7)you rode the bike so that it hit the side of the small gully [23].
The trial judge found it was 'clear' that the appellant was 'so intoxicated as to be unable to have proper control of the bike' [25].
Her Honour referred to victim impact statements she had received from members of Haylee's family. The statements described the terrible effects of the appellant's offending on Haylee's parents, younger sister and extended family.
The appellant was aged 46 at the time of the offending and was 47 when sentenced. The appellant had lived and worked on the farm as an adult. Since at least 2010, he had been employed as a welder and crane operator. A reference from his employer spoke highly of him. Other references from people residing in the appellant's local community referred to support he had given them including by assisting them with work on their properties.
The appellant is single. He has a teenage daughter who lives with his former wife. The appellant has frequent contact with the daughter. A reference from his former wife described the appellant as a good person and said that the offending was out of character. The appellant's immediate family is supportive of him.
The appellant does not have a history of alcohol or substance abuse. He suffers residual pain from the physical injuries he sustained in the crash. He continues to suffer psychologically.
The appellant has no prior criminal record. After the crash the appellant wrote to Haylee's family and apologised for his decisions which ultimately caused her death. The appellant's expressions of remorse were genuine. The appellant co-operated in the trial process and with the police. Admissions he made to the police assisted the State's case at trial.
The trial judge considered that there was 'a lack of a need for a personally deterrent sentence because it is highly unlikely that [the appellant] will commit an offence of this nature in the future' [40]. Her Honour said she had arrived at that conclusion 'due to [the appellant's] prior good character and [his] response to the situation [he was] in' [40].
Her Honour noted that matters personal to the appellant were not the only relevant sentencing considerations:
It is most relevant that a young girl has died from the dangerous risk taking behaviour of an intoxicated driver. The courts are required to impose sentences for such offences which will hopefully mark society's disapproval of such dangerous behaviour leading to the loss of young life and more suffering in our community.
The courts must impose sentences to send a message to other people that the community will not tolerate drinking and driving. Regrettably, far too many lives are lost or damaged on our country roads through drink driving. In other words, general deterrence is an important sentencing principle in a case like this.
… [Y]ou acknowledge, rightly so, that the only appropriate sentence is the imposition of a term of imprisonment [41] - [43].
The ground of appeal
The sole ground of appeal alleges that the sentence of 5 years 3 months' imprisonment was manifestly excessive.
On 3 December 2018, Mazza JA referred the application for leave to appeal to the hearing of the appeal.
The particulars of the ground of appeal
The particulars of the ground of appeal assert that the sentence imposed by the trial judge was manifestly excessive having regard to the following.
First, the appellant had 'impeccable antecedents' and was of prior good character.
Secondly, the sentence did not properly reflect 'the actual level of criminality involved, which, by reason of an unusual combination of circumstances, meant that the level of culpability was less than would ordinarily be the case in cases of this type'.
Thirdly, insufficient weight was given to 'the considerable injuries and trauma suffered by the [a]ppellant as a consequence of the incident giving rise to the conviction'. It was submitted that the appellant suffered not only physical injuries as a result of the crash, but also suffered continuing psychological symptoms. The people who gave references as to the appellant's character made observations about the impact of the incident on the appellant and the psychological trauma he had experienced.
Fourthly, insufficient weight was given to the appellant's expressions of genuine remorse. His remorse was demonstrated in part by his co‑operation with the police following the incident and by the manner in which his case was conducted at the trial.
Fifthly, the sentence imposed on the appellant was excessive having regard to the sentences imposed in broadly comparable cases.
The appellant's submissions
Counsel for the appellant submitted at the hearing of the appeal that the sentence of 5 years 3 months' imprisonment was manifestly excessive having regard to a combination of five factors. Counsel said the combination of factors was unusual.
First, the nature and extent of the physical injuries the appellant had suffered in the crash and the psychological trauma he had suffered. Secondly, the appellant's co-operation with the police. Thirdly, when he was drinking the appellant had not planned or intended to drive. Fourthly, the appellant decided 'spontaneously' to ride the trail bike in response to Haylee having told him that she wanted to find her father and Charlie. Counsel argued that the appellant's decision was made 'out of kindness to the child' (appeal ts 18). Counsel said the appellant's decision was 'borne out of compassion, not some sort of selfish motivation' (appeal ts 22). Counsel contrasted the appellant's decision with the decision of a person 'who simply drives home because they can't be bothered paying for a taxi' (appeal ts 22). Fifthly, the appellant rode the bike for a short time on a quiet country/rural road (appeal ts 18, 22).
Counsel referred to a number of previous decisions of this court which, in her submission, supported the contention that the sentence imposed on the appellant was manifestly excessive. All of the relevant offences in those previous decisions carried a maximum penalty of 10 years' imprisonment. Counsel placed particular reliance on Kirby v The State of Western Australia.[2]
[2] Kirby v The State of Western Australia [2016] WASCA 199; (2016) 78 MVR 380.
Counsel contended that the sentence of 5 years 3 months' imprisonment was manifestly excessive in length. A shorter term of immediate imprisonment should have been imposed. Counsel did not contend that the appellant should have received a suspended term of imprisonment of five years or less.
The merits of the appeal
At the material time, s 59(1) of the RT Act provided, relevantly:
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 -
(a)while under the influence of alcohol to such an extent as to be incapable of having proper control of the vehicle; or
(ba)while under the influence of drugs to such an extent as to be incapable of having proper control of the vehicle; or
(bb)while under the influence of alcohol and drugs to such an extent as to be incapable of having proper control of the vehicle; or
(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).
At the material time, s 59(3) of the RT Act provided:
A person convicted on indictment of an offence against this section is liable -
(a)if the offence is against subsection (1)(a), (ba) or (bb), or the offence is against subsection (1)(b) and is committed in circumstances of aggravation, to a fine of any amount and to imprisonment for -
(i)20 years, if the person has caused the death of another person; or
(ii)14 years, if the person has caused grievous bodily harm to another person;
or
(b)in any other circumstances, to a fine of any amount and to imprisonment for -
(i)10 years, if the person has caused the death of another person; or
(ii)7 years, if the person has caused grievous bodily harm to another person,
and, in any event, the court convicting that person shall order that he be disqualified from holding or obtaining a driver's licence for a period of not less than 2 years.
The expression 'circumstances of aggravation' in s 59(3) of the RT Act is defined in s 49AB(1) of the RT Act. Section 49AB provides, relevantly:
(1)For the purposes of this Division, a person commits an offence in circumstances of aggravation if at the time of the alleged offence -
(a)the person was unlawfully driving the vehicle concerned without the consent of the owner or person in charge of the vehicle; or
(aa) the person has never held a prescribed authorisation; or
(ab)the person has held a prescribed authorisation but is a person described in section 49(3)(a), (b), (ca), (c) or (da); or
(ac)the person holds a prescribed authorisation but the prescribed authorisation does not authorise the person to drive a vehicle of the kind concerned; or
(ad)the person commits an offence under the Road Traffic (Authorisation to Drive) Act 2008 section 38(1); or
(b)the person was driving the vehicle concerned on a road at 30 km/h or more above the speed limit; or
(c)the person was driving the vehicle concerned to escape pursuit by a police officer.
(2A)Subsection (1)(ac) does not apply to a person who is a member of a class of persons prescribed for the purposes of the subsection by regulations made under the Road Traffic (Authorisation to Drive) Act 2008 section 4(7).
(2)For the purposes of subsection (1)(c) it does not matter whether the pursuit was proceeding, or had been suspended or terminated, at the time of the alleged offence.
Some observations may be made about the structure and substance of s 59(1) read with s 59(3) and the definition of 'circumstances of aggravation' in s 49AB(1).
First, s 59(1)(a), s 59(1)(ba) and s 59(1)(bb) create offences where a motor vehicle driven by a person (the driver) is involved in an incident occasioning, relevantly, the death of another person, and the driver was, at the time of the incident, driving the motor vehicle while under the influence of alcohol (s 59(1)(a)) or drugs (s 59(1)(ba)) or alcohol and drugs (s 59(1)(bb)) to such an extent as to be incapable of having proper control of the vehicle. Section 59(3)(a)(i) provides that the maximum penalty for each of those offences is, relevantly, 20 years' imprisonment.
Secondly, s 59(1)(b) creates an offence where a motor vehicle driven by a person (the driver) is involved in an incident occasioning, relevantly, the death of another person, and the driver was, at the time of the incident, driving the motor vehicle in a manner (which expression includes speed) that was, having regard to all the circumstances of the case, dangerous to the public or to any person. Section 59(3)(a)(i) provides that, if the offence is committed in 'circumstances of aggravation' (as defined in s 49AB(1)), the maximum penalty for the offence is, relevantly, 20 years' imprisonment. Section 59(3)(b)(i) provides that, if the offence is committed in any other circumstances (that is, not in 'circumstances of aggravation'), the maximum penalty for the offence is, relevantly, 10 years' imprisonment.
Thirdly:
(a)The elements of the offence created by s 59(1)(a) do not include an element relating to the manner in which the motor vehicle was being driven (in particular, the offence does not include, as an element, that the vehicle was being driven in a manner that was, having regard to all the circumstances of the case, dangerous to the public or to any person). The dangerousness of the driver's conduct, in the context of the offence created by s 59(1)(a), is inherent in the element that the driver was under the influence of alcohol to such an extent as to be incapable of having proper control of the vehicle.
(b)By contrast, the elements of the offence created by s 59(1)(b) do include an element that the vehicle was being driven in a manner that was, having regard to all the circumstances of the case, dangerous to the public or to any person.
Fourthly, both the offence created by s 59(1)(a) and, if committed in 'circumstances of aggravation', the offence created by s 59(1)(b), have a maximum penalty of 20 years' imprisonment.
In the present case, the appellant was convicted of the offence created by s 59(1)(a). As we have mentioned, the maximum penalty for that offence is, relevantly, 20 years' imprisonment. The maximum penalty of 20 years' imprisonment for the offences created by s 59(1)(a), s 59(1)(ba) and s 59(1)(bb) reveals the seriousness with which Parliament regards driving a motor vehicle while under the influence of alcohol or drugs or alcohol and drugs to such an extent as to be incapable of having proper control of the vehicle. This is also apparent when the maximum penalty of 20 years' imprisonment for those offences is compared to the maximum penalty of 10 years' imprisonment for the offence of dangerous driving created by s 59(1)(b) where that offence is committed otherwise than in circumstances of aggravation.
The appellant does not challenge any of the trial judge's findings of fact or allege that her Honour made any other express error.
A ground of appeal which alleges that a sentence is manifestly excessive asserts the existence of implied error. It is necessary, in determining whether a sentence is manifestly excessive, to examine it from the perspective of the maximum sentence prescribed by law for the relevant offence, the standards of sentencing customarily observed with respect to that offence, the place which the criminal conduct occupies on the scale of seriousness of offences of the kind in question, and the personal circumstances of the offender.
The guidance afforded by comparable cases is flexible rather than rigid. The mere fact a sentence is within the range of other sentences imposed for similar offending does not necessarily establish that there was an appropriate exercise of the sentencing discretion in the particular case. Similarly, the mere fact that a sentence is outside the range does not necessarily establish that the exercise of the sentencing discretion in the particular case miscarried.
A sentencing range for comparable offences is merely one of the factors to be taken into account in deciding whether an individual sentence is manifestly excessive. A range of sentences customarily imposed is of significance for the purpose of ensuring broad consistency in the sentencing of offenders in broadly comparable cases. However, a sentencing range for comparable cases does not fix the range of a sound exercise of the sentencing discretion in a particular case.
When this court dismisses an appeal against sentence, and when it allows an appeal against sentence and resentences the offender, this court's decision on the sentencing outcome does not, of itself, fix the upper or lower limit of the range.
If, in a particular case where manifest excess is alleged, there are no directly comparable cases, this court is not precluded from deciding that an individual sentence is or is not manifestly excessive. It merely has the consequence that this court has no directly comparable cases to provide a yardstick against which to assess the sentence. However, previous sentencing ranges are only one pointer to the adequacy of a sentence. See Munda v The State of Western Australia;[3] The State of Western Australia v Doyle.[4]
[3] Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600 [38] - [39] (French CJ, Hayne, Crennan, Kiefel, Gageler & Keane JJ).
[4] The State of Western Australia v Doyle [2017] WASCA 207 [36] (Buss P, Mazza JA & Hall J).
Except where a mandatory sentence is prescribed, a sentencing judge exercises a discretionary judgment which is subject to applicable statutory provisions and judge-made law. See Barbaro v The Queen.[5]
[5] Barbaro v The Queen [2014] HCA 2; (2014) 253 CLR 58 [25] (French CJ, Hayne, Kiefel & Bell JJ).
In the present case, the sentencing judge was obliged to sentence the appellant in accordance with the sentencing principles set out in pt 2 div 1 of the Sentencing Act 1995 (WA).
The discretion conferred on sentencing judges is, of course, of fundamental importance and this court may not substitute its opinion as to sentencing for that of the sentencing judge merely because it would have exercised the discretion in a different manner. See Lowndes v The Queen.[6]
[6] Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 [15] (Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne & Callinan JJ).
We have considered a number of decisions of this court involving appeals against sentence for dangerous driving occasioning death where the maximum penalty was 20 years' imprisonment; namely The State of Western Australia v Gibbs;[7] The State of Western Australia v Butler;[8] Barron v The State of Western Australia;[9] Devine v The State of Western Australia;[10] Billing v The State of Western Australia;[11] and The State of Western Australia v Tittums.[12] Butler and Barron were concerned, relevantly, with dangerous driving occasioning death, contrary to s 59(1)(a) of the RT Act. Gibbs, Devine, Billing and Tittums were concerned, relevantly, with dangerous driving occasioning death, contrary to s 59(1)(b) of the RT Act, in circumstances of aggravation.
[7] The State of Western Australia v Gibbs [2009] WASCA 7; (2009) 192 A Crim R 399.
[8] The State of Western Australia v Butler [2009] WASCA 110.
[9] Barron v The State of Western Australia [2010] WASCA 27; (2010) 55 MVR 123.
[10] Devine v The State of Western Australia [2010] WASCA 94; (2010) 202 A Crim R 1.
[11] Billing v The State of Western Australia [2017] WASCA 80; (2017) 80 MVR 127.
[12] The State of Western Australia v Tittums [2018] WASCA 23; (2018) 83 MVR 476.
In Butler, the respondent pleaded guilty to one count of dangerous driving occasioning death, contrary to s 59(1)(a) of the RT Act, and one count of dangerous driving occasioning bodily harm, contrary to s 59A(1)(a) of the RT Act. On the first count he was sentenced to 2 years 10 months' immediate imprisonment. On the second count he was sentenced to 10 months' immediate imprisonment. Both sentences were made cumulative. The total effective sentence was therefore 3 years 8 months' immediate imprisonment. At the material time the respondent was driving with a blood alcohol concentration of 0.166%. The respondent was driving a motor vehicle on a single carriageway sealed road in a residential area. He was speeding. The respondent accelerated to overtake two vehicles. One of the vehicles had begun to turn right. The respondent's vehicle collided with that vehicle, mounted the kerb, became airborne and travelled over the front yard and garden of a house. His vehicle collided with a baby in a pram and the baby's mother. The baby was killed and the mother suffered bodily harm. The respondent was aged 24 years at the time of the offences. Apart from the pleas of guilty, mitigating factors included the respondent's relative youth, remorse, rehabilitation prior to sentencing and prospects of future rehabilitation. By majority, this court dismissed the State's appeal against sentence. Wheeler JA, who with Pullin JA formed the majority, said that although she was not persuaded that the sentencing judge had erred, the total effective sentence was 'plainly towards the low end of the range of sentences appropriate to offending of this kind' [25]. In our opinion, the sentence imposed for the offence of dangerous driving occasioning death, contrary to s 59(1)(a), was undoubtedly lenient.
In Barron, the appellant was convicted after trial of one count of dangerous driving occasioning death, contrary to s 59(1)(a) of the RT Act. At the material time the appellant was driving with a blood alcohol concentration of 0.187%. He struck and killed a pedestrian who was walking on the gravel verge of an unlit road. The appellant, who was aged 47 at the time of sentencing, had two previous convictions for dangerous driving causing death and a number of convictions for drink driving. There was little mitigation. The appellant's appeal against a sentence of 7 years 6 months' imprisonment was dismissed.
The appellant in Kirby was convicted on her pleas of guilty of one count of dangerous driving occasioning death (without circumstances of aggravation), contrary to s 59(1)(b) of the RT Act, three counts of dangerous driving occasioning bodily harm, contrary to s 59A(1)(b) of the RT Act, and one count of driving with a blood alcohol content exceeding 0.08%, contrary to s 64(1) of the RT Act. On the count of dangerous driving occasioning death the appellant was sentenced to 4 years 6 months' immediate imprisonment. Sentences of imprisonment on the counts of dangerous driving occasioning bodily harm were ordered to be served concurrently with each other and concurrently with the sentence for dangerous driving occasioning death. The total effective sentence was therefore 4 years 6 months' immediate imprisonment. The appellant's appeal against sentence was dismissed.
In the present case, counsel for the appellant's reliance on Kirby is misplaced. The decision in Kirby is not reasonably comparable because the maximum sentence in that case for the offence of dangerous driving occasioning death was 10 years' imprisonment. Where an offender is to be sentenced for an offence against s 59(1)(a) of the RT Act, for which the maximum penalty is 20 years' imprisonment, reasonably comparable cases are not to be found in decisions of this court concerning offences of dangerous driving occasioning death where the maximum penalty is 10 years' imprisonment.
There is no tariff for offences of the kind committed by the appellant in the present case because of the great variation that is possible in the circumstances of the offending and the offenders. See Butler [7]; Billing [40].
In the present case, the appellant's offending was very serious. He made a number of deliberate decisions which endangered Haylee's life and ultimately killed her. The appellant chose to ride the trail bike on Clifton Road, with Haylee as a pillion passenger, despite his having consumed a substantial quantity of alcohol. He was so intoxicated as to be incapable of having proper control of the bike. The appellant did not require Haylee to wear a helmet, despite a suitable helmet being available. At the material time the appellant was the only adult with Haylee. She was highly vulnerable in that she was a child aged 10; the appellant decided that he and Haylee should ride the bike despite his intoxication; Haylee was not wearing a helmet; and it was obvious that Haylee was at the risk of very serious injury, if not death, if she happened to fall from the bike. The appellant's culpability arose from the level of his intoxication combined with his decision that Haylee should ride on the bike without wearing a helmet, rather than the precise manner in which he rode the bike.
There were a number of mitigating features including the following. The appellant did not have any previous convictions and was of prior good character. He had a sound employment history and had supported and assisted people in his local community. The appellant's immediate family was supportive of him. He was genuinely remorseful and highly unlikely to reoffend in a similar manner. The appellant co‑operated in the trial process and with the police. Admissions he made to the police assisted the State's case at trial.
The appellant did not, however, have the mitigation that a plea of guilty or an unconditional offer to plead guilty to the offence of which he was ultimately convicted would have brought. He was not youthful or inexperienced for sentencing purposes.
As the trial judge noted, 'a personally deterrent sentence' was not necessary because it was highly unlikely that the appellant would commit a similar offence again [40]. However, general deterrence was an important sentencing factor.
It is true that the appellant suffered significant physical injuries and psychological trauma as a result of the crash. However, his injuries and trauma were a consequence of the deliberate decisions he made. He suffers residual pain from the physical injuries, but does not have any substantial residual physical disability.
As we have mentioned, the appellant's co-operation with the police was mitigating. However, the State had a strong case against the appellant in respect of the offence of which he was ultimately convicted without taking into account the appellant's co-operation. The ascertaining of the appellant's blood alcohol concentration did not require his co‑operation. The scene of the crash revealed that the crash occurred in the vicinity of a public road and that Haylee had not been wearing a helmet.
It is true that, when he was drinking, the appellant did not plan or intend to ride. However, he made a deliberate decision to ride the trail bike, with Haylee as a pillion passenger and in the circumstances we have recounted, despite his intoxication.
The appellant's decision to ride the trail bike may have been made spontaneously and in response to Haylee's request. However, the appellant was an adult and Haylee was a young child, and he rode for some distance before the crash.
Her Honour did not make a finding that the appellant's decision to ride the trail bike, with Haylee as a pillion passenger and in the circumstances we have recounted, was made 'out of kindness to the child' or was 'borne out of compassion'. Indeed, as we have mentioned, her Honour found that there was 'simply no reason for [the appellant] to be on the road at all or for [him] to be so far from [his] farm' [22]. The appellant told the police he understood that Mr Ross and Charlie were not going onto the road and that the road did not provide a shortcut to his farm. Accordingly, as her Honour noted, the appellant rode the bike up the driveway and onto Clifton Road '[f]or reasons unknown' [14].
Although the appellant was of prior good character and had expressed genuine remorse, those mitigating factors are not uncommon in cases of this kind.
The area of Clifton Road on which the appellant rode the trail bike may have been quiet, but it was a public road, the bike was unregistered and the appellant did not have a motorcycle licence. He should not, in any circumstances, have been riding the bike on the road.
Although each case turns on its own particular facts and circumstances, the facts and circumstances of the present case are not, in any relevant sense, unusual. The appellant rode the trail bike while under the influence of alcohol to such an extent as to be incapable of having proper control of the bike and with a young girl as a pillion passenger who was not wearing a helmet. The appellant acted recklessly and, ultimately, criminally.
The assertion in two of the particulars of the ground of appeal that the trial judge gave 'insufficient weight' to some sentencing factors is misconceived. An alleged failure by a judge who has exercised a discretion to give any or sufficient weight, or a complaint that a judge who has exercised a discretion gave excessive weight, to a relevant consideration will only constitute an express appealable error if it amounts to a failure to exercise the discretion conferred on the judge. See Mallet v Mallet;[13] Dinsdale v The Queen;[14] Vagh v The State of Western Australia;[15] Pedersen v The State of Western Australia.[16] A complaint about the attribution of weight to a relevant consideration therefore does not ordinarily give rise to an express error that enlivens an appellate court's jurisdiction to intervene in an appeal against a judge's discretionary decision or judgment. In the absence of a failure to exercise the discretion conferred on the judge, a weighting error is, ordinarily, merely a conclusion that is implicit in, and flows from, a finding by an appellate court that the outcome or result of the judge's exercise of the discretion is unreasonable or plainly unjust. Ordinarily, a weighting error is not, of itself, an independent ground which justifies appellate intervention.
[13] Mallet v Mallet [1984] HCA 21; (1984) 156 CLR 605, 614 (Gibbs CJ).
[14] Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 [26] (Gaudron & Gummow JJ).
[15] Vagh v The State of Western Australia [2007] WASCA 17 [76] (McLure JA).
[16] Pedersen v The State of Western Australia [2010] WASCA 175 [37] (Buss JA; McLure P & Mazza J agreeing).
We are satisfied that the sentence of 5 years 3 months' imprisonment was not unreasonable or plainly unjust. The sentence was commensurate with the seriousness of the offence after taking into account the maximum penalty, the facts and circumstances of the offending, Haylee's vulnerability, the sentencing dispositions in cases with at least some features comparable to the present case, the appellant's personal circumstances and antecedents, and all aggravating and mitigating factors. The sentence imposed was reasonably open to her Honour on a proper exercise of her discretion. Error is unable to be inferred from the sentencing outcome. The sentence was not manifestly excessive.
The ground of appeal fails.
Conclusion
We would refuse leave to appeal and dismiss the appeal.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
FN
Research Associate to the Honourable Justice Buss9 SEPTEMBER 2019
13
19
1