Gilbert v The State of Western Australia - [2020] WASCA 148

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   GILBERT -v- THE STATE OF WESTERN AUSTRALIA [2020] WASCA 148
CORAM:   BUSS P
MITCHELL JA

HEARD:   19 AUGUST 2020
DELIVERED          :   9 SEPTEMBER 2020
FILE NO/S:   CACR 55 of 2020
BETWEEN:   ADAM JOHN GILBERT
Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   BOWDEN DCJ
File Number            :   IND 1968 of 2019

Catchwords:

Criminal law - Appeal against sentence - Appellant convicted on his pleas of guilty of three counts - Count 1 involved the appellant driving a motor vehicle which was involved in an incident occasioning grievous bodily harm to the victim while the appellant was under the influence of alcohol to such an extent as to be incapable of having proper control of the vehicle - Count 2 involved the appellant failing to stop immediately after the occurrence of the incident and for as long as was necessary to ensure that the victim received all the assistance, including medical aid, that was necessary and practicable in the circumstances - Count 3 involved the appellant failing to report the incident forthwith to an officer in charge of a police station - Total effective sentence of 4 years 6 months' immediate imprisonment - Totality principle

Legislation:

Road Traffic Act 1974 (WA), s 54, s 56, s 59

Result:

Leave to appeal refused
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	Mr F P Merenda
Respondent	:	No Appearance

Solicitors:

Appellant	:	Paxman & Paxman
Respondent	:	Director of Public Prosecutions (WA)

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

Barbaro v The Queen [2014] HCA 2; (2014) 253 CLR 58
Devine v The State of Western Australia [2010] WASCA 94; (2010) 202 A Crim R 1
Gaskell v The State of Western Australia [2018] WASCA 8
Giglia v The State of Western Australia [2010] WASCA 9
Moore v The State of Western Australia [2019] WASCA 35
Paulose v The State of Western Australia [2019] WASCA 182; (2019) 90 MVR 386
Roffey v The State of Western Australia [2007] WASCA 246
The State of Western Australia v Berry [2016] WASCA 113; (2016) 76 MVR 285
The State of Western Australia v Molloy [2020] WASCA 123
The State of Western Australia v Tittums [2018] WASCA 23; (2018) 271 A Crim R 298

JUDGMENT OF THE COURT:

This is an appeal against sentence.
The appellant was charged on indictment with three counts.
Count 1 alleged that on 7 February 2019, at Hillarys, the appellant drove a motor vehicle which was involved in an incident occasioning grievous bodily harm to Steven Leonard Muscat and that at the time of the incident the appellant drove the vehicle while under the influence of alcohol to such an extent as to be incapable of having proper control of the vehicle, contrary to s 59(1)(a) read with s 59(3)(a)(ii) of the Road Traffic Act 1974 (WA) (the RT Act).
Count 2 alleged, in essence, that the appellant failed to stop immediately after the occurrence of the incident and for as long as was necessary to comply with the requirements of s 54(2) of the RT Act, namely to ensure that Mr Muscat received all the assistance, including medical aid, that was necessary and practicable in the circumstances, and that the incident occasioned grievous bodily harm to Mr Muscat, contrary to s 54(1) read with s 54(2) and s 54(3)(b) of the RT Act.
Count 3 alleged, in essence, that the appellant failed to report the incident forthwith to an officer in charge of a police station and that the incident occasioned grievous bodily harm to Mr Muscat, contrary to s 56(1) read with s 56(2) of the RT Act.
The appellant was convicted, on his pleas of guilty, of all of the counts in the indictment.
The maximum penalty for count 1 is 14 years' imprisonment and a fine of any amount; the maximum penalty for count 2 is 14 years' imprisonment; and the maximum penalty for count 3 is 10 years' imprisonment.
On 2 April 2020, Bowden DCJ imposed individual sentences of immediate imprisonment as follows:
(a)count 1: 3 years 6 months;
(b)count 2: 12 months; and
(c)count 3: 6 months.
His Honour ordered that the sentence for count 2 be served cumulatively upon the sentence for count 1 and that the sentence for count 3 be served concurrently with the sentence for count 1. The total effective sentence was therefore 4 years 6 months' immediate imprisonment. A parole eligibility order was made. The total effective sentence was backdated to 23 December 2019.
The sentencing judge also imposed motor driver's licence disqualifications.
The appellant's sole ground of appeal alleges that the total effective sentence infringed the first limb of the totality principle.
The ground of appeal does not have a reasonable prospect of success. Leave to appeal should be refused. The appeal must be dismissed.

The facts and circumstances of the offending

The facts and circumstances of the offending were, relevantly, as follows.
At 7.26 pm on 7 February 2019, the appellant drove a Ford Falcon sedan in a southerly direction on Solander Road, Hillarys. His vehicle was wandering from side to side and was on the wrong side of the road upon approaching the intersection with Cook Avenue.
The appellant stopped his vehicle at the intersection of Solander Road and Cook Avenue. However, the front of his vehicle protruded into Cook Avenue. This caused another motorist travelling east on Cook Avenue to take evasive action.
The appellant then made a right turn onto Cook Avenue and travelled west. However, almost immediately, the appellant drove onto the left footpath and verge. The appellant almost stopped his vehicle before he began to make a right hand u-turn. He did not use any signals while he made this manoeuvre.
Mr Muscat, who was travelling west on Cook Avenue, was riding a motor cycle. Mr Muscat approached the appellant's vehicle from the rear. Without warning, the appellant began executing the u‑turn into the path of Mr Muscat's motor cycle. Mr Muscat endeavoured to avoid being struck by the appellant's vehicle. However, Mr Muscat's motor cycle collided with the front driver side corner of the appellant's vehicle. Mr Muscat was thrown from his motor cycle. He landed on the road.
The appellant continued to execute the u-turn. His vehicle drove over Mr Muscat's left leg. The appellant then left the scene and drove under hard acceleration in an easterly direction on Cook Avenue. The appellant travelled about 450 m on Cook Avenue before he collided with a power pole. Members of the public remained with the appellant until police arrived. The appellant made no attempt to stop after the collision with Mr Muscat's motor cycle or to report the incident to police before he was taken into police custody.
The appellant had consumed a substantial quantity of alcohol before the incident. A blood sample taken from the appellant was analysed and revealed a blood alcohol level of 0.226% at the time of the incident.
Mr Muscat was taken by ambulance to Royal Perth Hospital. He suffered the following injuries:
(a)an open fracture of the left tibia and fibula;
(b)multiple fractures of the left foot;
(c)an open fracture of the left calcaneus;
(d)bruising to the left foot; and
(e)multiple areas of soft tissue damage.
Surgical intervention for the purpose of saving Mr Muscat's lower left leg were unsuccessful. On 18 April 2019, his left leg was amputated below the knee.

The sentencing judge's sentencing remarks and the appellant's personal circumstances

The sentencing judge recounted the facts and circumstances of the offending and the nature and extent of the injuries suffered by Mr Muscat. His Honour observed that the incident caused considerable trauma to Mr Muscat, both physically and psychologically, and that the amputation would affect Mr Muscat for the rest of his life.
His Honour noted that the appellant was aged 22 years at the time of the incident. The appellant was aged 23 years when sentenced.
The information before the sentencing judge included a presentence report dated 15 November 2019, a psychological report dated 18 March 2020 from Helen Fowler, a clinical psychologist, and a psychiatric report dated 11 March 2020 from Dr Sanjay Khanna, a psychiatrist.
The author of the presentence report said that the appellant had no recollection of the offences, but took responsibility for his actions and made no attempt to minimise his behaviour. He reported to the author that he had been struggling with emotional distress, depression and excessive alcohol use for a few years. He used alcohol as a coping mechanism. According to the author, the appellant had 'risk and need factors related to problematic alcohol use, mental health issues (depression), lack of appropriate coping strategies and poor emotional management skills'. The author said that the appellant had made significant efforts to engage in programmatic intervention of his own volition, including psychological counselling. He was engaged with a treating psychiatrist. Since the offending, the appellant had attended psychological counselling on 15 or 16 occasions and had been meeting monthly with his psychiatrist.
In her report, Ms Fowler indicated that the appellant had suffered from a sense of personal inadequacy and poor self‑worth since his adolescence. As he has grown older, the appellant's emotional instability and impoverished coping skills appear to have resulted in the development of feelings of resentment towards the world and, particularly, those people he relies upon for support. The appellant's sense of resentment and hopelessness has caused the development of angry and hostile responses to others. Ms Fowler was of the opinion that the appellant requires a consistent and structured rehabilitation program. When he is able, the appellant's long term engagement (for 6 to 9 months) in a residential drug treatment service would be desirable, with supporting psychiatric assessment and review.
In his report, Dr Khanna confirmed that he had been treating the appellant intermittently over a number of years.
His Honour reduced the individual head sentences he would otherwise have applied by 25%, pursuant to s 9AA of the Sentencing Act 1995 (WA), on account of the appellant's pleas of guilty at the first reasonable opportunity.
The sentencing judge referred to the appellant's personal circumstances. He left school at the end of year 12. The appellant has a reasonable employment history. Initially, he worked as a bricklayer and then as a trade assistant on a fly‑in/fly‑out basis for about 2 ½ years. During the 6 month period prior to being taken into custody, the appellant worked on a part‑time basis for his father.
The appellant has a prior criminal record comprising a conviction for drink driving (with a reading of 0.052%) in 2015 and a conviction for breach of a police order under s 61(2a) of the Restraining Orders Act 1997 (WA) in 2018.
His Honour said that it was to the appellant's credit that he had undertaken volunteer work with the Nollamara RSL Club Inc for almost 13 years. His Honour mentioned written references he had received. The authors of the references spoke well of the appellant. His Honour said that, since the appellant had been in custody, the appellant had engaged in self‑reflection and was determined 'to move forward' with his mental health issues and his alcohol issues (ts 41).
The sentencing judge expressed concern that on 23 December 2019 the appellant had shouted abuse at Mr Muscat while Mr Muscat was in his home. In particular, the appellant had shouted at the victim, in crude and offensive terms, that Mr Muscat had 'wrecked [the appellant's] life'. However, based on the appellant's mental health issues, his Honour decided to treat that harassment of Mr Muscat as 'an isolated or transient outburst rather than a genuine reflection of [the appellant's] attitude' (ts 41). His Honour accepted that the appellant did have an understanding of the injuries that he had caused to Mr Muscat and that the appellant had difficulties in coping, not only with his own predicament, but also with Mr Muscat's predicament (ts 41).
His Honour took into account the greater hardship within the prison system occasioned by the COVID-19 pandemic and the difficulties which the appellant was likely to experience as a young man serving a term of imprisonment for the first time.

The appellant's submissions

Counsel for the appellant submitted that the appellant's youth, pleas of guilty at the first reasonable opportunity and remorse were significant mitigating factors. His mental health issues, both before and after the incident, underscored 'the need for a sympathetic sentence'. The appellant had made a real attempt to rehabilitate himself (and to resolve his mental health issues) prior to sentencing. He had demonstrated insight and a clear focus upon rehabilitating himself. It was submitted that, when all the circumstances, including matters personal to the appellant, and the sentencing pattern revealed by previous decisions of this court, are taken into account, it is apparent that the total effective sentence of 4 years 6 months' immediate imprisonment infringed the first limb of the totality principle.

The merits of the ground of appeal

The first limb of the totality principle requires that the total effective sentence imposed on an offender who has committed multiple offences must bear a proper relationship to the overall criminality involved in all of the offences (including those, if any, in respect of which the offender is still serving a term of imprisonment), viewed in their entirety, and after having regard to all relevant circumstances, including those referable to the offender personally (and including, for example, the desirability of accommodating any wish to rehabilitate), and the total effective sentences imposed in comparable cases.
The practical effect of the totality principle is, ordinarily, to arrive at an aggregate sentence which is less than that which would have been arrived at merely by adding up all of the terms appropriate for the individual offences. See Roffey v The State of Western Australia.[1] Also, the severity or leniency of an individual sentence (which is not manifestly excessive or manifestly inadequate) is relevant in evaluating whether the total effective sentence infringes the first limb of the totality principle. See Giglia v The State of Western Australia;[2] Gaskell v The State of Western Australia.[3]
[1] Roffey v The State of Western Australia [2007] WASCA 246 [26] (McLure JA; Steytler P & Miller JA agreeing).
[2] Giglia v The State of Western Australia [2010] WASCA 9 [40] (Owen JA; McLure P & Pullin JA agreeing).
[3] Gaskell v The State of Western Australia [2018] WASCA 8 [52] ‑ [60] (Buss P), [150] ‑ [151] (Mazza & Beech JJA).
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 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 offending is merely one of the factors to be taken into account in deciding whether a sentence is manifestly inadequate. 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 an appellate court dismisses an appeal against sentence, and when it allows an appeal against sentence and resentences the offender, the court's decision on the sentencing outcome does not, of itself, fix the upper or lower limit of the range.
Similarly, if, in a particular case where an infringement of the first limb of the totality principle is alleged, there are no directly comparable cases, this court is not precluded from deciding that a total effective sentence does infringe the first limb of the totality principle. It merely has the consequence that this court has no directly comparable cases to provide a yardstick against which to judge the adequacy of the total effective sentence imposed at first instance. See Moore v The State of Western Australia.[4]
[4] Moore v The State of Western Australia [2019] WASCA 35 [51] (Buss P & Mazza JA).
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).
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.
A sentencing judge is obliged to sentence an offender in accordance with the sentencing principles set out in pt 2 div 1 of the Sentencing Act. Part 2 div 1 comprises s 6 to s 9AA.
The appellant does not complain (and he could not reasonably complain) about the individual sentences of 3 years 6 months' immediate imprisonment for count 1, 12 months' immediate imprisonment for count 2 and 6 months' immediate imprisonment for count 3.
His sole contention is that the total effective sentence of 4 years 6 months' imprisonment, arrived at by the accumulation of the individual sentences for counts 1 and 2, is unreasonable or plainly unjust.
There are relatively few decisions of this court involving appeals against sentence for aggravated dangerous driving occasioning grievous bodily harm where the maximum penalty was 14 years' imprisonment. See, however, Devine v The State of Western Australia;[6] The State of Western Australia v Berry;[7] Paulose v The State of Western Australia;[8] and The State of Western Australia v Molloy.[9]
[6] Devine v The State of Western Australia [2010] WASCA 94; (2010) 202 A Crim R 1.
[7] The State of Western Australia v Berry [2016] WASCA 113; (2016) 76 MVR 285.
[8] Paulose v The State of Western Australia [2019] WASCA 182; (2019) 90 MVR 386.
[9] The State of Western Australia v Molloy [2020] WASCA 123.
The standards of sentencing for the offence of failing to stop immediately after the occurrence of an incident and render assistance, contrary to s 54(1) read with s 54(2) and s 54(3)(b) of the RT Act, if the incident occasioned grievous bodily harm, and for the offence of failing to report an incident forthwith to the police, contrary to s 56(1) read with s 56(2) of the RT Act, where the incident occasioned grievous bodily harm, are apparent from this court's decisions in The State of Western Australia v Tittums[10] and Paulose.
[10] The State of Western Australia v Tittums [2018] WASCA 23; (2018) 271 A Crim R 298.
There is no doubt that the appellant's overall offending in the present case was serious. He drove his motor vehicle while he was highly intoxicated. He failed to stop and ensure that Mr Muscat received all the assistance, including medical aid, that was necessary and practicable in the circumstances. After the incident with Mr Muscat, the appellant continued driving from the scene until he collided with a power pole. The appellant made no attempt to report the incident to the police before he was arrested. Mr Muscat was vulnerable. A rider of a motor cycle is at risk of serious injury or death if struck by a motor vehicle. Mr Muscat suffered severe physical and emotional trauma. His left leg was surgically amputated below the knee.

There were, as we have mentioned, a number of mitigating factors. The sentencing judge properly took those mitigating factors into account in fixing the length of the terms of the individual sentences and the length of the term of the total effective sentence. It was necessary, having regard to all relevant facts and circumstances of the offending and all relevant sentencing factors, to mark the seriousness of the appellant's overall offending by accumulating the individual sentence for count 1 and the individual sentence for count 2.
In our opinion, the total effective sentence of 4 years 6 months' imprisonment did not infringe the first limb of the totality principle. A custodial term of that length was necessary in order properly to reflect the serious character of the appellant's offending, viewed as a whole, and to give effect to the sentencing considerations of appropriate punishment and personal and general deterrence. The total effective sentence bears a proper relationship to the criminality involved in all of the offences, viewed together, and having regard to all relevant facts and circumstances and all relevant sentencing factors, including the seriousness of the overall offending, the vulnerability of Mr Muscat, the pattern of sentencing in reasonably comparable cases and the matters of mitigation referred to by his Honour.
It is not reasonably arguable that error by the sentencing judge in the exercise of his discretion should be inferred, based on the first limb of the totality principle, from the sentencing outcome. The total effective sentence of 4 years 6 months' immediate imprisonment was not unreasonable or plainly unjust.
The sole ground of appeal does not have a reasonable prospect of success.

Conclusion

Leave to appeal should be refused. The appeal must be dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
JM
Research Associate to the Honourable Justice Buss
9 SEPTEMBER 2020