Glasfurd v The State of Western Australia
[2024] WASCA 7
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: GLASFURD -v- THE STATE OF WESTERN AUSTRALIA [2024] WASCA 7
CORAM: MAZZA JA
HALL JA
VANDONGEN JA
HEARD: 6 NOVEMBER 2023
DELIVERED : 25 JANUARY 2024
FILE NO/S: CACR 40 of 2023
BETWEEN: JAMIE ERIC GLASFURD
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram: McGRATH J
File Number : INS 3 of 2022
Catchwords:
Criminal law - Appeal against sentence - Dangerous driving occasioning death - Dangerous driving occasioning grievous bodily harm - Dangerous driving occasioning bodily harm - Where appellant disqualified from driving and under the influence of methylamphetamine - Where appellant accelerated towards red light in inner‑city area and lost control - Whether total sentence of 9 years 6 months infringed the totality principle - Whether discount for pleading guilty was so low as to imply error
Legislation:
Road Traffic Act 1974 (WA), s 59(1)(b), s 59A(1)(b)
Result:
Leave to appeal on ground 1 refused
Leave to appeal on ground 2 granted
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | Mr D Grace KC & Mr C Porter |
| Respondent | : | Ms G N Beggs |
Solicitors:
| Appellant | : | Smiddy-Brown Legal |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Abraham v The State of Western Australia [2014] WASCA 151; (2014) 244 A Crim R 1
Barron v The State of Western Australia [2010] WASCA 27; (2010) 55 MVR 123
Beins v The State of Western Australia [No 2] [2014] WASCA 54
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
Gelmi v The State of Western Australia [2019] WASCA 139; (2019) 89 MVR 443
Longbottom v The State of Western Australia [2008] WASCA 203; (2008) 38 WAR 396
Lyons v The State of Western Australia [2022] WASCA 81; (2022) 100 MVR 420
The State of Western Australia v Butler [2009] WASCA 110
The State of Western Australia v Gibbs [2009] WASCA 7; (2009) 192 A Crim R 399
The State of Western Australia v Glasfurd [2023] WASCSR 10
The State of Western Australia v Molloy [2020] WASCA 123; (2020) 93 MVR 361
The State of Western Australia v Tittums [2018] WASCA 23; (2018) 271 A Crim R 298
JUDGMENT OF THE COURT:
The appellant was convicted on his pleas of guilty of one count of aggravated dangerous driving occasioning death contrary to s 59(1)(b) of the Road Traffic Act 1974 (WA) (RT Act), one count of aggravated dangerous driving occasioning grievous bodily harm contrary to s 59(1)(b) of the RT Act, and four counts of aggravated dangerous driving occasioning bodily harm contrary to s 59A(1)(b) of the RT Act.
The offences arose out of a single incident of driving that occurred in inner‑city Perth on the evening of Friday 20 August 2021. The incident involved the appellant heavily accelerating his V8 Range Rover towards red traffic lights whilst under the influence of illicit drugs, losing control of the vehicle and colliding with another parked vehicle, which was propelled into a crowd of people at a public bar. The circumstance of aggravation in respect of each of the offences was that the appellant was disqualified from holding a driver's licence at the time of the incident.
The appellant was sentenced to 6 years 6 months' imprisonment for the first offence, 3 years' imprisonment for the second offence and 2 years 6 months' imprisonment for each of the other four offences. The sentences for counts 1 and 2 were ordered to be served cumulatively and the remaining sentences were ordered to be served concurrently with the sentence on count 1. Accordingly, the total effective sentence was 9 years 6 months' imprisonment. An order was made that the appellant be eligible for parole. He was disqualified from holding or obtaining a driver's licence for a period of 7 years, commencing on his release from prison.
The appellant seeks leave to appeal against his sentence. There are two grounds of appeal. The first ground is that the total effective sentence of 9 years 6 months infringed the first limb of the totality principle. The second ground is that the learned sentencing judge erred by failing to apply a greater discount than 12.5% for the appellant's pleas of guilty.
For the reasons that follow, we would refuse leave to appeal on ground 1, grant leave to appeal on ground 2 and dismiss the appeal.
The total effective sentence was not plainly unreasonable or unjust having regard to the circumstances of the offence and the personal circumstances of the appellant.
As regards ground 2, the lateness of the appellant's pleas was at least in part attributable to a change in the prosecution case. However, on any view, the appellant did not enter his pleas at the first reasonable opportunity. Furthermore, the case against the appellant was overwhelming. In these circumstances, and bearing in mind that the size of the discount for pleading guilty is a discretionary decision, it has not been established that the discount given was plainly unreasonable or unjust. In any event, it has not been established that a different sentence should have been imposed.
The facts
On Friday 20 August 2021, the appellant drove into the city and parked in a multi‑storey car park on Pier Street. He was driving a supercharged V8 Range Rover SUV. He parked his vehicle on level 7 of the car park and spent the afternoon in the city. At some point that day he consumed alcohol and used methylamphetamine.[1]
[1] ts 280 - 281.
At 6.17 pm, the appellant returned to the car park. He had an open bottle of beer in his hand, from which he was drinking. It took him some time to pay for his ticket using the vending machine. He appeared to be unsteady on his feet. Eventually, he paid for his ticket and took the lift. He mistakenly went to level 8 and had to walk down to level 7. He got into his vehicle, reversed out of the car bay and started to drive down to the ground level.[2]
[2] ts 281.
As the appellant drove from level to level, he slowed for corners and then rapidly accelerated in the straight sections of the car park. This pattern was repeated for most of the journey until he reached the ground level.[3]
[3] ts 281.
The appellant exited the multi‑storey car park at 6.30 pm. He turned left and travelled a short distance north on Pier Street. He then mounted the raised median strip and conducted an illegal three‑point turn. After completing that manoeuvre, the Range Rover was stationary on the opposite side of Pier Street, facing south.[4]
[4] ts 281.
At this point, Pier Street inclines upwards to the south where it intersects with Murray Street. That intersection is controlled by traffic lights. The distance from the appellant's vehicle to the intersection was approximately 100 m. The traffic lights were red. The speed limit along this section of Pier Street is 40 km per hour. The surrounding area includes retail and entertainment premises. In particular, there are a number of bars and restaurants on that part of Pier Street to the south of the intersection.[5]
[5] ts 281 - 282, 284.
The appellant then accelerated very heavily causing his vehicle to lurch forward and move rapidly up the hill towards the intersection. A slow‑moving vehicle was travelling on a green light west on Murray Street through the intersection and across the path of the appellant's vehicle. It was later calculated that the appellant's vehicle accelerated from being stationary to travelling at 61.6 km per hour within three seconds. The traffic lights continued to display red for the appellant during this movement. It is this act of driving that constitutes the dangerous driving that is the subject of the offences.[6]
[6] ts 281, 284.
The appellant claimed that he then attempted to brake, but due to a 'pedal error' he mistakenly depressed the accelerator again. There was some computer data from the vehicle that supported this claim, and it was accepted by the State for the purposes of sentencing. The appellant nonetheless conceded that he created the dangerous situation that led to the making of the pedal error. The effect of the pedal error was that the speed of the vehicle further increased.[7]
[7] ts 288.
The appellant's vehicle entered the intersection, against the red light, narrowly missing the slow‑moving vehicle, which he swerved to avoid. His vehicle then hit the raised kerb on the east side of Pier Street and, after mounting the footpath, collided into the rear of a Toyota Corolla that was parked in Pier Street on the other side of the intersection.[8]
[8] ts 281.
The Toyota Corolla was parked adjacent to a public bar, outside which a crowd of people were sitting and standing. The Toyota Corolla was propelled by the impact into the crowd of people. One man died and five other people suffered injuries, some of them very serious.[9]
[9] ts 281.
Dirk Anton Taljaard was sitting outside the bar, having a beer. He was struck by the Toyota Corolla and died at the scene. Ryan Healy was having drinks after work. He was about to leave the bar and was standing up saying goodbye to colleagues when he was struck by the Toyota Corolla. He suffered life‑threatening injuries. Those injuries included a type B dissection of his aorta, which required surgery. Victor Tangaris, Chris Thorson and Owen Umbras were friends who were all sitting outside the bar. Mr Tangaris suffered multiple injuries, including a cut to the top of his head (which was later stapled), a laceration to his right radial artery (which required surgical repair) and concussion. Mr Thorson received a number of injuries, including a cut to his nose and cuts to the back of his right leg. Mr Umbras suffered multiple injuries, including a cut to the top of his head, severe bruising to his arms, concussion and sore ribs. Alex May was having a drink with work colleagues before taking a flight to a mine site in the north of the State. He suffered wounds to his left arm, near the elbow.[10]
[10] ts 282.
At the point of impact with the Toyota Corolla, the appellant's vehicle was travelling at 92.5 km per hour. After striking the Toyota Corolla, the appellant's vehicle collided with a Hyundai iMax on the opposite side of Pier Street. The appellant's vehicle then rolled onto its roof and slid down Pier Street, before coming to a stop. Witnesses went to the appellant's aid. When asked what had happened, he told one witness that his accelerator got stuck. He also said the same thing to an ambulance officer and that he had lost control of the vehicle.[11]
[11] ts 281 - 282.
The appellant was conveyed to Royal Perth Hospital by ambulance to be treated for injuries that he received. A police officer accompanied him in the ambulance and placed him under arrest. On arrival at the hospital, the police officer found a syringe in the appellant's left front pocket. The syringe contained 0.28 mL of methylamphetamine.[12]
[12] ts 282.
At the hospital, a blood sample was taken from the appellant. On analysis, it was determined that the appellant had 0.05 mg/L of methylamphetamine, 0.01 mg/L of amphetamine (as a metabolite of methylamphetamine) and 0.004 g of alcohol per 100 mL of blood in his system. A back calculation was conducted, and it was estimated that at the time of the collision, the appellant had a methylamphetamine level of 0.107 mg/L and a blood alcohol level of 0.028%.[13]
[13] ts 282 - 283.
The following morning whilst still in hospital, a psychiatric registrar spoke to the appellant. The appellant said that he had come out of the car park and then 'put [his] foot down and went for it'. Detectives from the police Major Crash Investigation Unit attended the hospital to formally interview the appellant; however, they were unable to do so due to his condition.[14]
[14] ts 283.
At the time of the incident, the appellant was not the holder of a valid motor driver's licence. This was due to disqualifications arising from a series of convictions for other driving offences. On 20 January 2020, he was convicted in the Mandurah Magistrates Court of dangerous driving and driving with a prescribed illicit drug in his system. He was sentenced to a community‑based order and disqualified from driving for six months. On 27 February 2020, the appellant was convicted in the Moora Magistrates Court of reckless driving. He was fined and disqualified from driving for a further 12 months. On 19 May 2021, he was convicted in the Midland Magistrates Court of driving without authority. He was fined and disqualified from driving for a further nine months. As a result of those convictions, the appellant was disqualified from holding or obtaining a driver's licence until 26 March 2022.[15]
[15] ts 283.
Data obtained from the Range Rover established that in the five seconds prior to the crash, the appellant was commanding 100% acceleration from the vehicle. An analysis of CCTV footage from the scene established that the appellant had engaged in approximately seven seconds of driving from the commencement of his acceleration on Pier Street to the collision with the white Toyota Corolla. The distance was 98 m.[16]
[16] ts 283 - 284.
The learned sentencing judge concluded that after conducting the three‑point turn and straightening his vehicle to face the red lights on Murray Street, the appellant accelerated heavily for approximately three seconds, commanding 100% power. In this period, the vehicle accelerated to a speed of 61.6 km per hour. At this point, there was four seconds to go before impact with the Toyota. At about this time, and whilst accelerating heavily towards the intersection, the appellant saw the other vehicle travelling through the intersection from east to west, which represented an impediment to his forward movement. As a result, he attempted to brake, however, due to 'pedal error' he applied the accelerator instead of the brake. Three seconds before the crash he applied the accelerator, commanding 65% power, before removing his foot from the accelerator and then reapplying his foot to the accelerator, again commanding 100% power. The appellant also steered significantly to the left and then to the right to avoid the slow‑moving vehicle that was travelling through the intersection. He narrowly avoided that vehicle and continued to speed through the intersection.[17]
[17] ts 284.
The sentencing judge accepted that the appellant attempted to steer the vehicle into the funnel that is Pier Street beyond Murray Street but it was too late. The word 'funnel' is a reference to the fact that Pier Street narrows to a single lane at this point. With half a second to go before the collision, the appellant's vehicle mounted the kerb, causing the steering wheel to turn sharply to the left. His vehicle then struck the white Toyota Corolla, which struck the people outside the bar.[18]
[18] ts 284 - 285.
By his pleas of guilty the appellant accepted that his initial driving in the first three seconds after completing the three‑point turn on Pier Street was dangerous, both having regard to the manner of that driving and the fact that he had methylamphetamine in his system. However, he maintained, and it was accepted, that the subsequent applications of force to the accelerator after that three seconds were due to pedal error, that is that the appellant was attempting to brake and inadvertently applied the accelerator again. The Range Rover was mechanically examined, and no defects were found.[19]
[19] ts 285, 289.
The State obtained a report from a toxicologist regarding the effect of methylamphetamine. The back calculation of the level of methylamphetamine in the appellant's system of 0.107 mg/L at the time of the vehicle collision was said to be a moderately high level. The toxicologist said that this reading was consistent with a peak level after a low to moderate intravenous dose of methylamphetamine. Such a quantity is associated with arousal, reduced fatigue, euphoria, positive mood, accelerated heart rate and other short‑term effects. It may also lead to behavioural disinhibitions. There is usually also a reduction in executive control, leading to impulsivity and poor decision‑making. People under the influence of methylamphetamine to this extent are more likely to engage in risk‑taking behaviour and this may lead to errors of judgement and errors in perception.[20]
[20] ts 325.
The appellant also had a blood alcohol level of 0.028% at the time of the crash. The sentencing judge noted that this was not a primary contributing factor to the crash. He considered that the very low level of alcohol was of limited relevance to the offending conduct.[21]
[21] ts 325.
After pleading guilty the appellant prepared a letter expressing his regret for his actions and remorse for the consequences. He accepted a need to change and said that he was determined not to use drugs again.[22]
[22] ts 328.
Personal circumstances
The appellant was 62 years of age at the time of sentencing. He is from a farming family and spent much of his childhood on the family farm. He attended a boarding school in Perth for his secondary education.[23]
[23] ts 322.
In his second year of high school, the appellant had a skateboard accident that resulted in him being in a coma for three months and missing six months of school. When he returned to school, he was frequently truant and ultimately was expelled for that reason. The appellant reported that throughout his school years, he had problems with authority and was only happy when back on the family farm.[24]
[24] ts 322.
The appellant was married in 1998 and has three children by that union, who are now adults. The appellant reported to a psychologist that another child, the first with his wife, was stillborn and that he continues to feel grief for the loss of that child. He also reported to the psychologist that after the death of that child, he commenced dabbling with drugs, initially cocaine and later methylamphetamine.[25]
[25] ts 322.
In 2010, the appellant separated from his wife and acrimonious divorce proceedings followed. The family dispute resulted in the appellant being ordered to vacate the family farm in 2021. This caused him to feel a loss of purpose and led to an increase in his illicit drug use.[26]
[26] ts 322.
The appellant is in reasonably good health; however, he has had previous motor vehicle accidents that have caused him injury. In 2018, he was seriously injured in a motor vehicle accident. In January 2021, he suffered injuries to his spine, ribs and a serious cut to his thigh in an accident on the farm. There was no suggestion that those injuries had resulted in long‑term impairment that would make any term of imprisonment significantly more difficult.[27]
[27] ts 322 - 333.
Psychological report
A psychological report was obtained by the appellant's lawyers from Dr Phil Watts, a clinical and forensic psychologist. Dr Watts conducted tests to assist in assessing the appellant's neurocognitive functioning.
Dr Watts noted that the appellant's presentation was typical of attention deficit hyperactivity disorder (ADHD) or some type of head injury. The appellant reported being diagnosed with ADHD as a child and receiving medication. There was no confirmation of this diagnosis. Dr Watts said that there were aspects of the appellant's clinical presentation which were suggestive of possible neurocognitive issues, over and above any ADHD.[28]
[28] Presentence psychological report dated 28 March 2023, pars 8 - 9.
The appellant reported to Dr Watts that the breakdown of his marriage and the impact of the Family Court proceedings led to a deterioration in his mental health and an increasing use of illicit drugs. At one stage, he was hospitalised under the care of a psychiatrist. He then undertook a number of years of counselling with a clinical psychologist specialising in addiction. This enabled him to be abstinent from drugs for a period, but he relapsed.[29]
[29] Presentence psychological report dated 28 March 2023, pars 15 - 16.
Dr Watts expressed a view that methylamphetamine was capable of having a calming effect on people with ADHD and suggested that this may be the case with the appellant.[30] This view was not consistent with the appellant's manner of driving nor with the opinion expressed by the toxicologist regarding the likely effect of methylamphetamine on the appellant and was not adopted by the sentencing judge.
[30] Presentence psychological report dated 28 March 2023, par 14.
The appellant told Dr Watts that in the immediate lead‑up to the offence, the family farm had been sold and he had spent time selling off equipment and packing up the farm. He used some of the preliminary settlement money to buy himself an apartment in the inner city and the Range Rover that he was driving at the time of the incident. He had moved into the apartment a couple of months prior to the incident.[31]
[31] Presentence psychological report dated 28 March 2023, par 20.
Dr Watts noted that after the incident, whilst the appellant was in hospital, he was diagnosed with dangerously high levels of blood glucose, consistent with type 2 diabetes. He suggested that uncontrolled diabetes can impact on peripheral nerve function and that this, together with a leg injury incurred in the farming accident in January 2021, was likely to have impaired the appellant's driving ability.[32] As the State pointed out, this opinion was beyond Dr Watt's area of expertise and did not take into account that the appellant had failed to take prescribed medication for this condition.[33]
[32] Presentence psychological report dated 28 March 2023, par 21.
[33] ts 318.
The appellant expressed remorse to Dr Watts for having caused another person's death. He indicated that since being remanded in custody, he had ceased using drugs and had realised how bad the choices were that he had been making.[34]
[34] Presentence psychological report dated 28 March 2023, par 24.
The cognitive testing undertaken by Dr Watts showed that the appellant has a full-scale IQ of 82, which places him in the low average range of intelligence. There were significant slow processing speeds when completing tasks and a number of errors in the appellant's visual spatial processes, which were typical of someone with right‑sided brain damage of longstanding duration. There was also significantly slow processing of verbal information. Dr Watts considered that there was clear evidence of neurocognitive impairment.[35]
[35] Presentence psychological report dated 28 March 2023, pars 25 - 28.
Dr Watts suggested that the most likely cause of the impairment was the skateboard accident in the appellant's youth. He described the appellant as having restricted cognitive capacity with impairment to the right side and frontal lobes of his brain, impacting on his ability to exercise judgement and to appreciate the consequences of his behaviour.[36]
[36] Presentence psychological report dated 28 March 2023, par 28.
Criminal record
The appellant has an extensive history of driving-related convictions. Some of those convictions have been referred to earlier to explain how the appellant came to be disqualified from driving at the time of the incident. For completeness the relevant offences are as follows.[37]
1.In 1985, the appellant was convicted of reckless driving and dangerous driving in the Moora Magistrates Court. He was fined for those offences and his driver's licence was suspended.
2.On 12 June 2011, the appellant drove his vehicle on the Mitchell Freeway at 150 km per hour in a 100 km per hour zone. He was convicted of reckless driving in respect of that conduct. He was fined and his driver's licence was suspended.
3.On 28 December 2018, the appellant drove his vehicle on Pinjarra Road in Greenfields. He overtook another vehicle while travelling well above the speed limit. The speed limit reduced to 60 km per hour but the appellant failed to slow and collided into the rear of another vehicle. The vehicle collision resulted in significant damage to both vehicles and injury to the appellant. The appellant was driving with methylamphetamine in his system. He was convicted of dangerous driving and driving with a prescribed illicit drug in his system. He was fined, a community‑based order was imposed and his driver's licence was suspended.
4.On 23 August 2019, the appellant drove his vehicle at 161 km per hour in a 100 km per hour zone on the Great Northern Highway in Bindoon. He was convicted of reckless driving, fined and disqualified from driving for 12 months.
5.The appellant has also incurred 26 speeding fines over 20 years. The infringements include exceeding the speed limit by more than 40 km per hour on two occasions, exceeding the speed limit by more than 30 km per hour but less than 40 km per hour on three occasions, and exceeding the speed limit by 20 km per hour but less than 30 km per hour on seven occasions.
6.The appellant has six previous convictions for driving a vehicle without authority (that is, whilst disqualified).
[37] ts 310 - 311, 323 - 324.
Victim Impact
Victim impact statements were received from Amanda Ricci, a sister of Mr Taljaard, and from Mr Healey.
Ms Ricci said that Mr Taljaard was born and raised in South Africa and emigrated to Australia when aged 20. He initially lived in South Australia but then moved to Perth. Though he never married he had sisters, nieces and nephews, who loved him. Ms Ricci states that Mr Taljaard was a kind and gentle soul who meant harm to no one and is missed by all his family.
Mr Healey said that he sustained multiple injuries, including a third‑degree tear to his aorta which required surgery and the insertion of a stent. There is a possibility of further heart surgery being required in the future. He also suffered multiple fractures and has had two operations on his right hand. Despite many months of rehabilitation his hand has not returned to being fully functional and he has been told that he will not be able to resume his previous employment. He also requires surgery to his left hand and a right knee replacement. He has impairment to a shoulder and an ankle and suffers from migraines and memory loss. He battles with mental trauma and constant pain. The injuries have adversely impacted on Mr Healey's employment prospects, financial security and enjoyment of life. His wife has had to cease work and his ability to engage with his children has been reduced.
Circumstances of the Guilty Pleas
The appellant was charged on 20 August 2021. The charges at that time were largely the same as those to which the appellant later pleaded guilty with the exception that an additional circumstance of aggravation was pleaded in each case, being that the appellant was driving on a road at more than 30 km per hour above the speed limit.
There were six mentions in the Magistrate's Court before the appellant entered pleas of not guilty to all charges and was committed for trial. The first charge was upgraded to manslaughter on or about 21 March 2022. The appellant made a first appearance in the Supreme Court on 28 March 2022.
Following committal, the State filed an indictment and the appellant was arraigned and entered pleas of not guilty. There were two appearances in the Supreme Court before the matter was set down for a trial commencing on 13 February 2023.
The prosecution case to this point was that the dangerous driving was constituted by the appellant deliberately driving at speeds of up to 92.5 km per hour and through the red light into the intersection of Pier and Murray Streets. The defence case was that the speed alleged and the driving through the red light were due to the pedal error and not any deliberate act on the part of the appellant.
On 3 February 2023, 10 days prior to the commencement of the trial, the State advised that it intended to allege that the appellant drove dangerously by heavily accelerating in the direction of the intersection in the manner earlier described and prior to any pedal error. The State expressed a willingness to accept pleas of guilty on that basis.[38] That would involve discontinuing the manslaughter charge and reverting to a charge of dangerous driving occasioning death and removing the circumstance of aggravation relating to speed.
[38] ts 312.
The appellant did not initially accept the offer and the trial commenced on 13 February 2023. The State opened its case on the following basis:[39]
The State's case is that he deliberately put his foot down and accelerated his vehicle along Pier Street and that he then lost control. He lost control of his high‑powered vehicle and had a collision with that Toyota Corolla which then caused the Toyota Corolla to plough into the people outside My Place.
[39] ts 179.
On the following morning, 14 February 2023, senior counsel for the appellant sought a short adjournment so that he could obtain instructions from the appellant. The fact that the appellant was in custody was said to have made it difficult to communicate with him. One of the things that senior counsel said that he needed to discuss with the appellant was the 'plea proposal'. Senior counsel said that it was not likely that that proposal would be accepted, rather it was likely that the trial would continue. He said, 'I think we have an answer on whether the trial will need to proceed and the answer is it will'. Senior counsel then said:[40]
[I]n the last week leading up to the trial there has been a difference in emphasis in the State case and that, I think, is giving Mr Glasfurd some concern. The State's original position was deliberate acceleration on two occasions and that causes the issue.
The State's position now seems to be deliberate acceleration at the start creates the danger and then a loss of control later on rather than a further deliberate acceleration. That, I think, is - and that's, you know, in light of plea negotiations as well. That's concerning [sic] Mr Glasfurd some concern, that there's been a movement in the way the State's put its case.
Now, obviously the jury's heard the version yesterday and I'm not saying there's anything unfair about the State putting it in that way, but there has been a movement from [how] Mr Glasfurd expected the case to be run from the start, and that's been relatively recent.
[40] ts 264.
After the adjournment senior counsel said that the appellant had taken the opportunity to 'reconsider' the plea offer and had taken further advice from his lawyers and 'in reconsidering that deal he's reached a different conclusion than that he reached earlier'. Senior counsel then said that the appellant had agreed to accept the proposal and would plead guilty to amended charges on the basis that the dangerous driving 'comes from the initial part of the incident'.[41] The appellant was arraigned on a new indictment containing the amended charges and entered pleas of guilty. The matter was then adjourned to 5 April 2023 for sentencing.
[41] ts 266.
In written submissions on sentence, it was accepted on behalf of the appellant that the pleas were not entered at the first reasonable opportunity and could not attract the maximum discount of 25%. In oral submissions senior counsel accepted that the appellant did not immediately accept the State's offer. He explained that delay in the following way:[42]
Now, it's an enormous issue for someone in his circumstance to plead guilty to an offence, or offences like this. He's pleading guilty to six offences, the consequences of which have been enormous. He spent a long time in custody waiting for a trial, expecting there's going to be a trial, having a set of allegations against him that he does not accept, and a style of driving that he did not accept, and then when the position changed from the State, it took some time for Mr Glasfurd to get to an acceptance of that position. But ultimately, he did. And so what we would say is once it was alleged against him what he accepted he had done, what he had actually done wrong, he did ultimately plead guilty to that and accept responsibility.
[42] ts 292.
Sentencing remarks
The learned sentencing judge described the offending as being very serious, noting that the appellant had killed one person, inflicted serious injury on another and inflicted significant injuries on four others. His Honour said that in the case of the appellant, both general and personal deterrence were paramount factors in sentencing.[43]
[43] The State of Western Australia v Glasfurd [2023] WASCSR 10 [55].
The sentencing judge noted that whilst a prior criminal record is not an aggravating factor, the appellant did not come before the court as a person of prior good character. A criminal record may also be relevant to personal deterrence if it reveals that the offending is a manifestation of a propensity on the part of the offender.[44]
[44] ts 323.
The sentencing judge identified the following aggravating factors:[45]
1.The appellant was driving a very powerful vehicle, a supercharged V8 Range Rover Sport SUV. Significantly, the appellant owned the vehicle and was fully appraised of its power and capacity to accelerate.
2.The appellant drove his vehicle after consuming methylamphetamine. The amount of methylamphetamine in his system was likely to have reduced the appellant's executive control, increased his impulsivity, caused poor decision‑making, increased his risk‑taking behaviour and led to errors of judgement and errors in perception.
3.At the time of driving, the appellant was disqualified from holding a motor driver's licence.
4.There was no need for the appellant to be driving his motor vehicle on this particular day and he did so because it suited him. In so doing, he disregarded court orders that disqualified him from driving. The sentencing judge described the appellant as a recalcitrant.
5.The offences were committed at 6.30 pm on a Friday night in the Central Business District. Although the duration of the relevant driving was relatively brief, it was inherently dangerous. It involved a deliberate decision to heavily accelerate, such that after three seconds, the vehicle was travelling at 61.6 km per hour in a 40 km per hour zone.
6.The appellant accelerated up the hill on Pier Street knowing that the traffic lights at Murray Street were red. The traffic lights were red at the time the appellant commenced his acceleration and remained red until after the collision.
7. The appellant made the decision to drive in an inherently dangerous manner in an inner‑city area where he knew there were numerous pedestrians and other vehicles.
[45] The State of Western Australia v Glasfurd [57] - [66].
The sentencing judge referred to the severe consequences of the offending, as evidenced by the victim impact statements, and noted that the sentence for count 1 must reflect the high value which the law places on human life.[46]
[46] The State of Western Australia v Glasfurd [67].
As regards mitigating factors, the most significant factor was the pleas of guilty. His Honour noted that the maximum reduction of 25% is only available in cases where the plea of guilty has been entered at the first reasonable opportunity. His Honour then said:[47]
You pleaded guilty on the second day of trial.
You were initially charged with dangerous driving causing death before the State indicted you on a count of manslaughter. Whilst you were initially charged with dangerous driving causing death you did not plead to that charge nor the other charges on the indictment. After committal, the State decided to substitute the charge of dangerous driving causing death to one of manslaughter. You maintained your plea of not guilty.
Your counsel submitted that you changed your plea on the second day of trial after understanding in the week to 10‑day period prior to the trial that the State was presenting a different State case at trial. Previously, the State's position was that you were guilty of manslaughter by wilfully driving your vehicle at excessive speed, estimated to be between 90 - 96 km per hour (in a 40 km per hour speed zone) along Pier Street and through the red light at the intersection of Murray Street. The State confirmed that the State case at trial was now to rely upon your manner of driving prior to the pedal error, which is the three seconds of acceleration before you removed your foot from the accelerator. However, the State would continue to rely upon the other circumstances of your driving, including your consumption of methylamphetamine, manner of driving as you exited the car park, and the acceleration in the high powered vehicle towards a red light.
The State accepts that your plea has benefits to the State and victims and is indicative of remorse.
In all the circumstances I afford you a 12.5% discount for your plea of guilty.
[47] The State of Western Australia v Glasfurd [70] - [75].
The sentencing judge accepted that the appellant had accepted responsibility for his actions and the consequences and that he now has an understanding of the impact that his conduct has had on the family of the deceased and on the other victims and their families. His Honour accepted that the appellant was remorseful for his conduct and that he has reasonable prospects for rehabilitation.[48]
[48] The State of Western Australia v Glasfurd [77].
As regards the cognitive impairment referred to by Dr Watts, the sentencing judge noted that the State had submitted that Dr Watts is not a neuropsychologist and that the testing was inadequate to support a finding of neurocognitive impairment. His Honour found that the cognitive issues identified by Dr Watts provided no mitigation. His Honour said that this was not a case where there was a causal link between a mental impairment and the offending. His Honour said that the appellant's moral culpability was not reduced, nor does the contended cognitive impairment otherwise constitute a mitigating factor. His Honour said he would take the matters raised by Dr Watts into account as forming part of the appellant's personal background.[49]
[49] The State of Western Australia v Glasfurd [79] - [80].
There was some evidence that very high blood glucose levels over several weeks or months could have affected the appellant's nerve function and caused swelling and impairment of his ability to feel the pedals of the car. The sentencing judge accepted the State's submission that the appellant had failed to take medication prescribed for this condition. His Honour did not accept that the hyperglycaemia could be given real weight as being the cause of the appellant accidentally hitting the accelerator. In any event, this did not provide an explanation for the dangerous driving that preceded the pedal error.[50]
[50] The State of Western Australia v Glasfurd [81].
The sentencing judge did not accept that the appellant's age would make imprisonment more difficult for him. There were some indications that the appellant had found imprisonment difficult (including being the victim of a serious assault) and his Honour took that into account as forming part of the appellant's personal circumstances.[51]
[51] The State of Western Australia v Glasfurd [82].
The sentencing judge noted that there was no tariff for the offence of dangerous driving occasioning death because of the great range in the circumstances in which the offence may be committed and the personal circumstances of the offender. His Honour concluded that the only appropriate disposition was the imposition of a term of immediate imprisonment. His Honour noted that each offence was a distinct offence involving a separate victim, each of whom had suffered death or injury. However, his Honour accepted that totality considerations needed to be taken into account and that he would do so by reducing one of the sentences and making orders that some of them be served concurrently.[52]
[52] The State of Western Australia v Glasfurd [84] - [87].
The sentencing judge imposed the following terms:[53]
Count 1 6 years 6 months' imprisonment
Count 23 years' imprisonment (reduced from 4 years for reasons of totality)
Count 32 years 6 months' imprisonment
Count 42 years 6 months' imprisonment
Count 52 years 6 months' imprisonment
Count 62 years 6 months' imprisonment
[53] The State of Western Australia v Glasfurd [89].
The sentence on count 2 was ordered to be served cumulatively on that for count 1 and the sentences on the other counts were ordered to be served concurrently on count 1. The total effective sentence was, therefore, 9 years 6 months' imprisonment. That sentence was backdated to 20 August 2021 to take into account time spent in custody. An order was made that the appellant be eligible for parole. An order was also made disqualifying the appellant from holding or obtaining a motor driver's licence for seven years, commencing on his release from prison.[54]
[54] The State of Western Australia v Glasfurd [90] - [93], [98].
Grounds of appeal
The grounds of appeal are as follows:
1.The learned sentencing judge erred in law in imposing a total effective sentence of 9 years 6 months' imprisonment that infringed the first limb of the totality principle.
2.The learned sentencing judge erred in law by failing to apply a greater discount than 12.5% for the appellant's pleas of guilty.
Ground 1 - totality - submissions
The appellant submits that the offending behaviour occurred over a relatively short period (three seconds) and that the maximum speed reached in that period was not 'majorly excessive' (61.6 km per hour). He submits that there was an attempt by him to correct his initial acceleration. However, due to pedal error, the result was further acceleration with catastrophic effect. If the appellant had not confused the brake with the accelerator, the vehicle would have stopped with moderate braking before the intersection. This is said to place into proper context the appellant's dangerous driving.[55]
[55] WAB 14.
The appellant submits that the ingestion of methylamphetamine was perhaps mitigated by the opinion by Dr Watts to the effect that methylamphetamine could have been capable of calming the appellant due to his ADHD condition.[56]
[56] WAB 14.
The appellant submits that though his driving history is deplorable, this was not an aggravating factor but rather the absence of prior good character. It was accepted that it was also reflective of the need for personal deterrence.[57]
[57] WAB 14.
The appellant suggests that the total sentence imposed on him was high having regard to comparable cases. In this regard, he refers to Barron v The State of Western Australia;[58] Devine v The State of Western Australia;[59] The State of Western Australia v Tittums;[60] The State of Western Australia v Molloy;[61] and Lyons v The State of Western Australia.[62]
[58] Barron v The State of Western Australia [2010] WASCA 27; (2010) 55 MVR 123.
[59] Devine v The State of Western Australia [2010] WASCA 94; (2010) 202 A Crim R 1.
[60] The State of Western Australia v Tittums [2018] WASCA 23; (2018) 271 A Crim R 298.
[61] The State of Western Australia v Molloy [2020] WASCA 123; (2020) 93 MVR 361.
[62] Lyons v The State of Western Australia [2022] WASCA 81; (2022) 100 MVR 420.
The appellant submits that the findings made by the learned sentencing judge were not translated into a total effective sentence that bore a proper relationship to the overall level of criminality displayed by the appellant. Whilst no complaint is made about the individual sentences imposed for each of the six offences, the effect of the order for cumulation of the sentences on counts 1 and 2 is said to be that the total effective sentence offends the totality principle.[63]
[63] WAB 15.
The respondent submits that whilst the dangerous driving occurred over a short period of time, this is only one factor to be considered when evaluating the seriousness of the offences. The appellant made a deliberate decision to drive whilst he was disqualified and affected by methylamphetamine. He then decided to heavily accelerate towards the intersection. The collision resulted from a deliberate decision to do an obviously dangerous act in circumstances where the appellant knew that there were other drivers and pedestrians in the vicinity.[64]
[64] WAB 29.
The respondent submits that the assertion that the maximum speed reached was not 'majorly excessive' should be rejected, having regard to the prevailing road conditions and the location where the incident occurred. There would have been no occasion for the pedal error if the appellant had not engaged in the unnecessary initial heavy acceleration as he approached the red light. For these reasons, the respondent says that the present case is a serious example of dangerous driving.[65]
[65] WAB 29 - 30.
The respondent submits that in considering the total sentence, the starting point is that there is no challenge to the propriety of the sentence of 6 years 6 months' imprisonment on count 1. In addition to the death of the victim on count 1, the second victim suffered injuries which were life‑threatening and permanent. An additional four victims suffered serious injuries. In these circumstances, a significant degree of accumulation was required to ensure that the total sentence properly reflected the total impact of the offending on all of the victims.[66]
[66] WAB 30.
As to the comparable cases, the respondent submits that the task of comparison is more difficult in the present case due to the number of victims and the effect of the totality principle. In any event, the respondent says that the cases referred to do not support a conclusion that the total effective sentence in the appellant's case was erroneous.[67] In addition to the cases cited by the appellant, the respondent refers to Billing v The State of Western Australia.[68]
[67] WAB 31 - 32.
[68] Billing v The State of Western Australia [2017] WASCA 80; (2017) 80 MVR 127.
Ground 1 - disposition
The relevant legal principles applicable to a claim that the totality principle has been infringed are well known. The total effective sentence must bear a proper relationship to the overall criminality involved in all of the offences, viewed in their entirety and having regard of the circumstances of the case, including those referable to the offender personally. An alleged infringement of the first limb of the totality principle asserts an implied material error. The real question is whether the total sentence is so unreasonable or plainly unjust that the court must conclude that a substantial wrong has occurred.
The relevant maximum penalties are as follows:
| Count | Description | Maximum Penalty |
| 1 | Aggravated dangerous driving occasioning death (s 59 of the RT Act) | 20 years' imprisonment[69] |
| 2 | Aggravated dangerous driving occasioning grievous bodily harm (s 59 of the RT Act) | 14 years' imprisonment[70] |
| 3, 4, 5 and 6 | Aggravated dangerous driving occasioning bodily harm (s 59A of the RT Act) | 10 years' imprisonment[71] |
[69] RT Act, s 59(3)(a)(i).
[70] RT Act, s 59(3)(a)(ii).
[71] RT Act, s 59A(3a).
It was necessary for the total sentence to reflect all of the relevant facts and circumstances including the deliberately dangerous manner in which the appellant drove, the risk that was posed to other road users, including pedestrians, the appellant's use of methylamphetamine prior to driving, his decision to drive whilst disqualified, the importance of both general and personal deterrence, the severe consequences suffered by the victims and the limited mitigation available to the appellant.
To characterise the seriousness of the offending as three seconds of acceleration reaching a speed of 60 km per hour does not accurately reflect the true nature of the appellant's conduct. The short period of time over which the driving occurred is only one factor to be considered. The appellant made a deliberate decision to drive whilst he was disqualified and affected by methylamphetamine. He then made a deliberate decision to heavily accelerate towards an intersection where the traffic lights were displaying red against him. He drove in this manner in an inner‑city area when he knew that there were other drivers and pedestrians in the vicinity.
The error in depressing the accelerator rather than the brake was a product of the dangerous situation that the appellant created. The necessity to brake suddenly was a consequence of the appellant's unnecessary and deliberate high acceleration towards the red light. The appellant's dangerous driving involved an inherent risk to the lives and safety of other road users and pedestrians.
The consequences were that one man died, another suffered life threatening injuries and long‑term effects, and four other men suffered serious injuries.
For these reasons, this case was a very serious example of dangerous driving. It was indisputably offending deserving of a significant term of imprisonment.
Whilst the same act of dangerous driving was involved in each of the six offences, they involved death or injury to a separate victim. Care needed to be taken not to impose double punishment for the dangerous driving; however, the total sentence also needed to reflect the total impact on all of the victims. That so many victims were affected was a consequence of the fact that this dangerous driving took place, as the appellant well knew, in an inner‑city area on a Friday evening where there were many other road users and pedestrians.
As to the comparable cases, there is no tariff for offences of this nature because of the wide variety of circumstances in which they can occur and the differences in the personal circumstances of individual offenders.[72] The disposition in a particular case is always sensitive to the individual circumstances of the offending and of the offender. Sentencing for an offence involving the death of a victim is inherently difficult because of the recognition of the value of a human life and the almost impossible task of compensating for its loss.[73]
[72] Barron [47].
[73] Barron [33].
It is difficult to identify sentences that are commonly imposed for an offence of dangerous driving occasioning death. This is quintessentially an area in which the discretion residing in the first instance judicial officer must be accorded due respect.[74] In Billing, Mazza JA (with whom Buss P & Newnes JA agreed) observed that there were relatively few sentencing cases decided by this court with respect to aggravated dangerous driving occasioning death since the maximum penalty was increased in 2008. Sentencing patterns with respect to the offence were yet to emerge.[75] That remains the position.
[74] Barron [47].
[75] Billing [40].
Although the offender's manner of driving is of significance in fixing an appropriate sentence, the legislative intent is that the consequences of the driving are of very great importance. Thus, in cases where more than one person is killed or injured, a very significant degree of accumulation may often be appropriate.[76] Whether the individual sentences should be ordered to be served cumulatively, partly cumulatively or concurrently will depend on the particular facts and circumstances.
[76] Longbottom v The State of Western Australia [2008] WASCA 203; (2008) 38 WAR 396 [59].
As to the cases relied upon by the appellant, each of them turns on its own particular circumstances, but to the extent that they are relevant, we will summarise the facts and outcomes.
In Barron, the offender was convicted after trial of one count of aggravated dangerous driving occasioning death, with the circumstance of aggravation being a blood alcohol content of 0.187%. The offender hit and killed a pedestrian who was walking on the gravel verge of an unlit rural road. The offender was aged 47 years, had two prior convictions for dangerous driving causing death and a number of convictions for drink driving. There was little by way of mitigation. An appeal against a sentence of 7 years 6 months was dismissed. Whilst the offender in Barron did not plead guilty, his dangerous driving was not a deliberate act and there was one victim and one offence (as opposed to six in the case of the appellant).
In Devine, the 21‑year‑old offender was convicted after trial of one count of aggravated dangerous driving occasioning death and one count of aggravated dangerous driving occasioning grievous bodily harm, with the circumstance of aggravation being excessive speed. The offender drove at speeds in excess of 171 km per hour before losing control of his vehicle and colliding with a power pole, killing one passenger and causing severe injuries to another. He had no relevant prior record and was remorseful. He was sentenced to a term of 5 years 6 months' imprisonment on the first count and 1 year 6 months' imprisonment on the second, to be served cumulatively. On appeal the total effective sentence was reduced from 7 years' to 6 years' imprisonment. Whilst the offender in Devine did not plead guilty, there were two victims and two offences (as opposed to six in the case of the appellant) and the offender was youthful and had much better antecedents than the appellant.
In Tittums, the offender pleaded guilty to three counts of aggravated dangerous driving causing death, one count of failing to report an incident occasioning death to police and one count of failing to render assistance. The circumstance of aggravation was excessive speed. The offender drove on a rural road at between 157 km per hour and 165 km per hour in a 90 km per hour speed zone with a blood alcohol level of 0.13%, together with methylamphetamine and other drugs in his system. His vehicle collided with the victim's vehicle, causing it to leave the road and strike trees, resulting in rupture of its fuel tank. This caused the other vehicle to ignite and be engulfed in flames. The three occupants of that vehicle were killed. The offender left the scene of the accident and went home. He had no previous traffic convictions. A discount of 12.5% was allowed for the offender's pleas of guilty. On a State appeal, this court held that the sentences for failing to report the accident and render medical assistance were manifestly inadequate. On a resentencing, the total effective sentence imposed was 10 years' imprisonment. The offending in Tittums had several more serious aspects, but the offender in that case had better antecedents than the appellant.
In Molloy, the offender was convicted on his pleas of guilty of 10 counts, including stealing a motor vehicle, one count of aggravated dangerous driving occasioning death, four counts of aggravated dangerous driving occasioning grievous bodily harm, three counts of dangerous driving occasioning bodily harm, one count of failing to report an incident and one count of failing to render assistance. The circumstances of aggravation in each of the dangerous driving offences were that the vehicle was used without the consent of the owner and that the offender was disqualified from driving. The offender drove a stolen vehicle at about 100 km per hour and without sufficient attention in a 70 km per hour zone. He crashed into the rear of a van that was stopped at a red traffic light, causing death or injuries to the occupants of the van. The offender pleaded guilty at the first reasonable opportunity and received a discount of 25%. He was initially sentenced to a total effective sentence of 7 years 6 months' imprisonment. A State appeal was allowed, and a new total effective sentence of 10 years was imposed. The offender was disqualified from driving but, unlike the appellant, was not affected by alcohol or drugs at the time of the offending. The seriousness of the driving in that case was comparable to that of the appellant. The only significant points of difference are that in Molloy the vehicle was stolen, the offender left the scene (which attracted concurrent sentences of 18 months' imprisonment for failing to report and 3 years' imprisonment for failing to render assistance) and the higher discount for pleading guilty.
In Lyons, the offender was convicted on her plea of guilty of driving a motor vehicle involved in an incident occasioning death, whilst under the influence of drugs to such an extent as to be incapable of having proper control of the vehicle. Her driver's licence had also been suspended for non‑payment of fines. The offender had slept very little for three days and began to fall asleep whilst driving at night on a country highway. She failed to negotiate a bend in the road, drove onto the incorrect side of the road and collided head on with a car coming in the opposite direction. The driver of the other vehicle was killed. The offender had previous traffic convictions, but her history was less significant than that of the appellant. The offender received a 25% reduction in her sentence for her guilty plea. An appeal against a sentence of 7 years' imprisonment was dismissed. In Lyons there was one victim and one offence (as opposed to six in the case of the appellant) and there was a higher discount for pleading guilty.
In Billing, the offender pleaded guilty to one count of aggravated dangerous driving occasioning death, two counts of dangerous driving occasioning bodily harm, one count of failing to report an incident, one count of failing to render assistance, one count of driving whilst disqualified and one count of breaching a violence restraining order. The offender drove at speeds of up to 220 km per hour, through red lights and swerved to avoid collision with another vehicle. The car collided with the median strip and the offender lost control and the car span and struck a pole. One passenger was killed, and two others were injured. A sentence of 10 years' imprisonment was imposed for the dangerous driving occasioning death offence. All other sentences were ordered to be served concurrently. The sentences took into account a reduction of 20% for the pleas of guilty. On appeal, the individual sentence of 10 years' imprisonment was reduced to 8 years' imprisonment, but the court concluded that additional punishment was warranted to reflect that bodily harm had been caused to the two other victims and for the offender's post‑offence conduct. This resulted in the same total sentence of 10 years' imprisonment being imposed. The offending in Billing had several more serious aspects, but there were three victims (as opposed to six in the case of the appellant) and there was a higher discount for pleading guilty.
When this court dismisses an appeal or allows an appeal and resentences an offender, the outcome does not set the limit for the range of discretion in respect of an offence. Thus, the cases referred to provide only a yardstick against which the sentences imposed on the appellant can be measured. Each case will turn on its own particular circumstances.
In addition to those cases referred to by the parties we have considered a number of other 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;[77] The State of Western Australia v Butler;[78] and Gelmi v The State of Western Australia.[79] It is unnecessary to repeat the facts and circumstances of those cases or the sentences imposed. There are some comparable features between some of those cases and the present case but there are also distinguishing features.
[77] The State of Western Australia v Gibbs [2009] WASCA 7; (2009) 192 A Crim R 399.
[78] The State of Western Australia v Butler [2009] WASCA 110.
[79] Gelmi v The State of Western Australia [2019] WASCA 139; (2019) 89 MVR 443.
As previously noted, in the present case, the appellant's dangerous driving involved a deliberate act of acceleration in an inner‑city area in circumstances where he was disqualified from driving and under the influence of methylamphetamine. Those circumstances place this offending at the high end of seriousness.
There was little by way of mitigation. The appellant had a history of traffic offending, including a previous offence of driving under the influence of methylamphetamine. He had displayed an entrenched disrespect for the law and a propensity for breaching the road rules.
The only mitigating factor of any significance was the appellant's pleas of guilty. Whether the discount for the pleas of guilty was appropriate is the subject of count 2. But even assuming that the discount could have been somewhat larger, the circumstances of the offending, the comparable cases and the personal circumstances of the offender do not support a conclusion that the total effective sentence was unreasonable or unjust.
We would refuse leave to appeal on ground 1.
Ground 2 - the s 9AA discount - submissions
The appellant submits that up until shortly before the trial was due to commence, the State's case was that the appellant was guilty of manslaughter in that he deliberately or wilfully drove his vehicle at excessive speed, estimated to be between 90 km per hour and 96 km per hour in a 40 km per hour speed zone along Pier Street, towards the intersection of Pier and Murray Streets and then through the intersection against a red light. The appellant could not accept this allegation because he maintained that the speed alleged was caused by the pedal error.[80]
[80] WAB 16.
The appellant submits that 10 days prior to the trial, the State communicated a change in its case, which precipitated the pleas of guilty being entered into by the appellant. The State advised that it would change its case at trial to rely on the appellant's manner of driving prior to the pedal error, that is the first three seconds of acceleration, and that the pedal error would be accepted as a fact. If the appellant agreed to plead guilty on this basis, the State proposed to remove the circumstance of aggravation of speed and replace the manslaughter charge with one of dangerous driving causing death.[81]
[81] WAB 16.
The appellant submits that he considered the plea offer for a number of days and on the second day of trial accepted it. He was in custody during this period, and it is submitted that there was a need for significant consultation with his lawyers to understand the change in position by the State. In these circumstances, it is suggested that the appellant pleaded guilty to the most serious offence at the first reasonable opportunity to do so. The pleas of guilty were of substantial assistance and benefit to the administration of justice and saved the victims, their families and other eye witnesses the trauma of having to give evidence. Further, his Honour found that the pleas of guilty were indicative of remorse. In all the circumstances, the appellant submits that the pleas of guilty merited a larger discount than 12.5%.[82]
[82] WAB 16 - 17.
The respondent notes that counsel for the appellant in the sentencing proceedings submitted that the court could discount the sentences 'to a significant extent, although not the maximum of 25%'. This appears to be a concession that the guilty pleas were not entered at the first reasonable opportunity. In any event, it was not submitted either orally or in writing that the sentencing judge should reduce the sentences by the maximum of 25%.[83]
[83] WAB 35.
The respondent submits that although the State communicated the change in the nature if its case about 10 days prior to the start of the trial, it was always open to the appellant to make an unconditional offer to plead guilty to the offences which reflected the extent of his admitted criminality. The respondent notes that the appellant was initially charged with dangerous driving occasioning death and that the appellant could have either pleaded guilty or indicated an intention to plead guilty to that charge prior to the State indicting him for the offence of manslaughter.[84]
[84] WAB 35.
The respondent notes that the appellant has not alleged any specific error made by the sentencing judge in his sentencing remarks. In these circumstances, the appellant must establish that the discount of 12.5% was unreasonable or plainly unjust. The respondent submits that the availability of the discount is confined to the recognition of the benefits to the State and any victim or witnesses. Factors such as remorse are not relevant in this respect.[85]
[85] WAB 35 - 36.
The respondent says that the appellant did not plead guilty at the first reasonable opportunity, nor at an early stage in the proceedings. However, there were benefits to the State and witnesses because the guilty pleas were entered before any of the witnesses had testified. In those circumstances, a reduction of 12.5% properly reflected the benefits to the State and the witnesses having regard to the timing of the plea and the strength of the prosecution case.[86]
[86] WAB 36 - 37.
Ground 2 - disposition
The discount to be afforded for pleading guilty is a discretionary decision that requires the weighing of relevant factors, including the strength of the prosecution case.[87] The discount is allowed to reflect the benefits to the State, any victims and the witnesses resulting from the plea.[88] The earlier in the proceedings the plea is made the greater the reduction in the sentence may be. The maximum discount that can be allowed is 25%, and that is only available where the offender pleads guilty (or indicates such a plea) at the first reasonable opportunity.[89]
[87] Beins v The State of Western Australia [No 2] [2014] WASCA 54 [58]; Abraham v The State of Western Australia [2014] WASCA 151; (2014) 244 A Crim R 1 [57] - [58].
[88] s 9AA(2) Sentencing Act 1995.
[89] s 9AA(4) Sentencing Act 1995.
In the present case the pleas were entered on the second day of the trial. That was at a very late stage of the proceedings, but the delay is explained to some extent by the change in the prosecution case. The suggestion by the respondent that it was open to the appellant to have entered pleas at an earlier stage (before the first charge was upgraded to manslaughter) gives little weight to the fact that the prosecution case was then being advanced on a different basis. In some cases, it is open to an accused to plead guilty and dispute the facts, but that is usually where the elements of the offence are admitted and the dispute relates to matters of mitigation or aggravation. In this case, the matter in issue was what conduct constituted the element of dangerous driving. An earlier plea would have required the appellant to suggest a different case to the prosecution and for the prosecution to agree to accept that case. Whilst that option may have been open to the appellant, the reasonableness of expecting an accused person to take such an approach might be open to question. This is a relevant factor in assessing the significance of the delay.
However, even if the delay has some justification, it cannot be accepted that the pleas were entered at the first reasonable opportunity. That position was expressly disavowed by the appellant at sentencing. Senior counsel advised the sentencing judge, in effect, that the appellant had initially considered and rejected the proposal and had then 'reconsidered' his position after the trial commenced. That is not consistent with the submission made on the appeal that the appellant needed the intervening period of 10 days to consider his position. The offer was not difficult to understand and a decision on it appears to have been made relatively quickly - though that decision later changed. In the intervening period between when the offer was first rejected and when it was finally accepted any benefits to the State, victims and witnesses would have very quickly dissipated.
It must also be emphasised that whilst the maximum discount can only be allowed where pleas are entered at the first reasonable opportunity, it does not follow that where pleas are entered at the first reasonable opportunity the maximum discount must be given. The timing of the plea is but one factor in assessing its value. It is also relevant to take into account the strength of the prosecution case. On the amended basis the prosecution case was overwhelming. There was clear evidence that the appellant had deliberately depressed the accelerator in the first three seconds and that he had made admissions to several people immediately after the incident to that effect. That he was disqualified from driving and under the influence of illicit drugs was never disputed. Conviction was inevitable. The appellant's decision to plead guilty was no doubt influenced by a realistic assessment of the likely outcome of the trial.
This ground of appeal does not assert any express error by the sentencing judge. What is alleged is that the discount of 12.5% itself manifests error. In order to succeed the appellant must establish that the discount is plainly unreasonable or unjust. It is not enough to suggest that it is low or that a higher discount might have been allowed.
In our view, even allowing for the change in the prosecution case, it was fairly open to the sentencing judge to come to the view that a discount of 12.5% was appropriate. In that regard the reduced benefits of the pleas by delaying acceptance of the offer until the second day of the trial and the strength of the prosecution case are relevant.
In any event, even if (which we do not accept) the discount was erroneously low, the effect of this ground would not merely be to reduce the sentence, it would require a resentencing exercise. In our view, even if a higher discount was appropriate, we have not been persuaded that a different sentence should have been imposed.[90]
[90] Criminal Appeals Act 2004 (WA), s 31(4)(a).
Whilst we would grant leave in respect of this ground, it does not succeed.
Conclusion
Leave to appeal in respect of ground 1 should be refused. Leave in respect of ground 2 should be granted. The appeal should be dismissed.
Orders
1.Leave to appeal on ground 1 refused.
2.Leave to appeal on ground 2 granted.
3.Appeal dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
ID
Research Associate to the Hon Justice Hall
25 JANUARY 2024
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