Green v Haase - [2012] WASC 213

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: GREEN -v- HAASE [2012] WASC 213

CORAM: HALL J

HEARD: 30 MAY 2012

DELIVERED : 21 JUNE 2012

FILE NO/S: SJA 1105 of 2011

BETWEEN: DAVID RUSSELL GREEN
Appellant
AND
MICHELLE CLAIRE HAASE
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE R D YOUNG
File No  :MI 6874 of 2011, MI 6876 of 2011

Catchwords:

Criminal law - Dangerous driving causing death while under influence of drugs to such an extent as to be incapable of having proper control of the vehicle - Dangerous driving causing bodily harm in same circumstances - Whether total effective sentence of 2 years 10 months manifestly excessive - Whether total sentence 'crushing'

Legislation:

Road Traffic Act 1974 (WA), s 59, s 59A

Result:

Leave to appeal refused
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Ms A S Rogers
Respondent: Ms S Markham

Solicitors:

Appellant: Andrew Maughan & Associates
Respondent: Director of Public Prosecutions (WA)

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

Chan (1989) 38 A Crim R 337
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
Easthope v Whitney [2011] WASC 190
Giglia v The State of Western Australia [2010] WASCA 9
House v The King [1936] HCA 40; (1936) 55 CLR 499
Hunt v Callaghan [2011] WASC 10
Jarvis v The Queen (1993) 20 WAR 201
Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665
McDougall v The State of Western Australia [2009] WASCA 232
Penny v The State of Western Australia [2006] WASCA 173; (2006) 33 WAR 48
Royer v The State of Western Australia [2009] WASC 139; (2009) 197 A Crim R 319
Taylor v The State of Western Australia [2009] WASCA 226
The State of Western Australia v Barron [2010] WASCA 27
The State of Western Australia v Butler [2009] WASCA 110
The State of Western Australia v Gibbs [2009] WASCA 9
The State of Western Australia v Olive [2011] WASCA 25
Wilson v The State of Western Australia [2010] WASCA 82
Winwood v Brown [2011] WASC 123

HALL J: On 8 September 2011 David Russell Green, the appellant, was sentenced to a total effective term of 2 years and 10 months' imprisonment in the Magistrates Court at Midland. That sentence comprised 2 years and 6 months' imprisonment for an offence of dangerous driving causing death contrary to s 59(1)(a) of the Road Traffic Act 1974 (WA) and 4 months' imprisonment cumulative for a charge of dangerous driving causing bodily harm contrary to s 59A(1)(a) of the Act. In respect of both offences is was alleged that the appellant was under the influence of drugs to such an extent as to be incapable of having proper control of the vehicle. This form of the offence attracts a maximum penalty of 20 years' imprisonment.
The appellant now seeks leave to appeal the sentences imposed. There are two grounds of appeal. The first ground is that the sentence of 2 years and 6 months for the dangerous driving causing death offence was manifestly excessive in all of the circumstances. The second ground is that the total effective sentence is 'overly crushing' on the appellant.

Circumstances of the offending

At 6.55 am on 28 February 2011 the appellant was driving a Holden Barina hatchback along Railway Parade in Middle Swan. Mr Joseph Smith, a 16‑year‑old friend of the appellant, was a passenger in the vehicle. Earlier that morning the appellant had agreed to drive Mr Smith and another friend to work. The other friend had already been dropped off prior to the accident.
At the time of the incident the appellant was not entitled to be driving a motor vehicle. He did not and indeed had never held a driver's licence. He had only held a learner's permit and was not permitted to drive other than with a qualified instructor present in the vehicle. Furthermore, the appellant had previously driven in contravention of his learner's permit and been convicted of offences in that regard. Those offences had resulted in fines which had not been paid. As a consequence of the non‑payment of the fines the appellant was, at the time of the offence, disqualified from driving.
The night before the incident the appellant had used a large quantity of cannabis. He was at the time a frequent user of cannabis. He was subsequently found to be under the influence of cannabis at the time of driving to such an extent as to be incapable of having proper control of the vehicle.
As the appellant drove towards the intersection of Railway Parade and Oakover Road he failed to stop or to slow down. This was despite a stop sign requiring traffic on Railway Parade to stop and give way to traffic on Oakover Road. A Ford Falcon sedan was travelling west along Oakover Road at this time. That vehicle was being driven by Mr James Ridgewell. As a consequence of the appellant failing to stop or slow down at the intersection his car collided with that of Mr Ridgewell. Both vehicles were forced off the road. The appellant's vehicle collided with the boom gates of an adjacent railway crossing.
The passenger in the appellant's vehicle, Mr Smith, was severely injured in the collision. He was taken to hospital but died two weeks later of injuries sustained in the accident. The death of Mr Smith resulted in the first charge of dangerous driving causing death.
A passenger in the Falcon, Mrs Jessie Ridgeway, was also injured. She was taken to hospital and suffered a fractured toe and a dislocated toe. Those are the injuries constituting the bodily harm that is the subject of the second offence.
The appellant was also conveyed to hospital, though he suffered no serious injuries. While at the hospital a sample of his blood was taken. Analysis showed that the appellant's blood contained five micrograms per litre of tetrahydrocannabinol, the active constituent in cannabis. This result was submitted to a pharmacologist for an expert opinion. That opinion was that the appellant would have been affected by cannabis to such an extent as to be incapable of safely driving a motor vehicle.

Personal circumstances

In submissions to the magistrate the appellant's counsel said that the appellant had very little recollection of the circumstances giving rise to the incident. It was suggested however that it was possible that the appellant had not seen Mr Ridgeway's car approaching because his sightline was either obscured by trees or by the sun. However, it was not disputed that there was no obstruction of the stop sign and no reasonable explanation for not complying with it.
It was submitted that the appellant had not intended driving on the morning of the accident. He had received a telephone call from his friends to say that they were having difficulties with their motor vehicle and could he, as a favour to them, drop them at work. He agreed to that request.
It was submitted that the appellant had stopped at the scene and did what he could to render assistance to Mr Smith and Mr and Mrs Ridgeway. It was said that he apologised to Mrs Ridgeway immediately following the accident and was remorseful for what had occurred.
It was accepted that at the time of the incident the appellant was under the influence of cannabis. It was submitted that he had a long term cannabis use issue. This was also reflected in a pre‑sentence report and a psychological report received by the magistrate. The latter report described a childhood characterised by parental separation, major maternal mental health problems, substance use and a lack of emotional support. The report contained recommendations for ongoing substance abuse intervention and suggested that a residential rehabilitation programme would be of benefit. The appellant had taken some steps in this regard by consulting his doctor and was on a waiting list to undertake a residential programme at Bridge House.
It was submitted that the appellant should be placed on a pre‑sentence order to give him the opportunity to undertake a residential substance abuse programme to demonstrate to the court that he was genuine in his intentions to overcome that issue.
The prosecution submitted that the only appropriate penalty was one of imprisonment. This was said to be because the offence was not one of mere momentary inattention but involved a sustained failure to stop or slow down at an intersection regulated by a stop sign. It was also submitted that it was an aggravating circumstance that the appellant did not have a driver's licence, was driving in contravention of his learner's permit and had failed to heed the penalties imposed for previous contraventions.
One of the previous contraventions resulted in charges that were also dealt with by the magistrate on the same day. Approximately a month earlier than the accident, on 21 January 2011, the appellant had been driving the Holden Barina car in the evening when he was stopped by police. He was breathalysed and found to have a blood alcohol reading of 0.03%. It was further determined that he was the holder of a learner's permit only and had contravened the conditions of that permit by not being accompanied by a qualified instructor.

Magistrate's reasons

The magistrate gave detailed and comprehensive reasons for the sentences he imposed. After detailing the facts his Honour made reference to the maximum penalties available to him and to the aggravating features of the offending. His Honour said:
The maximum penalty for dangerous driving occasioning death in circumstances where a person is under the influence of drugs is one of 20 years' imprisonment. If dealt with in this court, and I note the prosecution have not objected to jurisdiction, it carries three years and a minimum disqualification of two years. The maximum for the dangerous driving occasioning bodily harm is one of nine months' imprisonment and a minimum disqualification of 12 months. It is to be noted that the above maximum penalties have risen substantially in recent years, particularly in circumstances where alcohol and/or drugs are involved.
The aggravating features of your offending are self‑evident. Obviously the cannabis intoxication is the most serious among them. Also, you were not meant to be driving at all. Firstly, you can only drive if properly supervised, and secondly, you were under disqualification. It was further aggravated in that you had further traffic charges pending at that time.
I will address the level of culpability later in these reasons, but it's certainly the case the accident occurred in circumstances where the other vehicle had the right of way, and no reason at all to expect you would come through the stop sign. There is no [suggestion] you were speeding or deliberately contravening that stop sign, but the stop sign was plainly visible. To the extent that your view along Oakover was impeded by the sun and/or trees, that, of course, is the whole reason why there was a stop sign for vehicles on the railway.
Again, the stop sign was plainly visible and the only explanation for you not having seen it and not having stopped accordingly, meant that you were not paying attention and, no doubt, and as reflected in the report of Dr Joyce, that in turn related to your consumption of marijuana the previous night.
You have a prior record of offending which is of some concern. It might, in the context of some other type of offending, be described as a minor record. It's not serious in the broad sense, but there's also a sense in the record that it's been building to an accident like this. I have no account of your juvenile record, but it's to be noted that you had an offence of unauthorised driving on a learner's permit in January this year.
Then, going back further to 2008, you have had four offences of unlicensed driving or contravening learner's permit, and one excess 02. You have been disqualified from driving on four separate occasions. Sadly, those fines and disqualifications, and the prospect of further fines and disqualifications and the pending excess 02, learner's permit charge were not such as to deter you from continuing to drive when you were not qualified to do so (ts 14 - 15).
His Honour then turned to consider mitigating factors. He said:
There are certainly some strong mitigating factors in your favour. You have pleaded guilty at any early stage. I certainly accept it to be the case that that plea of guilty reflects genuine remorse, be it I accept it's a matter that you are going to have to live with for the rest of your life and no doubt is something you will never forget or get over. You are still a young man yourself, only 22 years of age, and not quite 22 at the time of the incident. It's clear that you are severely traumatised by what occurred, and you have expressed a wish to convey your remorse to the family of the deceased.
I have read the pre‑sentence report and psychological report, and also the material from Bridge House and the letter from your grandmother. I accept you had no intention to drive on the day in question. I accept the reports are generally positive. It's to your credit that you have taken part in some programs directed towards your drug use and designed to achieve rehabilitation therefrom.
You have been ostracised within your peer group and somewhat socially isolated as a result. The psychological report indicates you had an appalling childhood. I won't go through those details, but it certainly appears that you were exposed to drug use, violence and general dysfunction. It has obviously impacted upon you as an adult.
Relevant to this offence it appears that you were highly dependent upon the approval of others and that explains to some extent your decision to drive your friends, at their request, on 28 February. I also accept that notwithstanding the trouble of your childhood you have maintained a reasonable employment history and are actively seeking employment now.
The reports indicate long‑term cannabis use which resulted you in developing a dependence on that drug which, despite prior attempts at rehabilitation, you have been unable to overcome. As I have noted, you are again attempting to address that problem. The psychological report indicates that overcoming drug use will be difficult, without also addressing mental health issues.
It says you suffer from post‑traumatic stress as a result of this incident. There's also indications of depression and low self‑esteem. The report says it's difficult to ascertain whether those symptoms pre‑existed the incident on 28 February, but ultimately the conclusion is that it is likely that they did and have been exacerbated by it. The report sets out what is required in order to address these issues and to reduce the risk of reoffending. I accept that presently you present as being motivated to comply with any such regime and are capable of doing so (ts 15 ‑ 16).
His Honour referred to the wide variety of circumstances in which offences of this nature can occur. He then characterised the offending in this case in the following terms:
In this case your counsel has described your offending as amounting [to] momentary inattentiveness. I don't accept that to be the case. It's not a case of ostentatious driving or skylarking, or aggressive or impatient driving, but it must be described as involving a high level inattentiveness. The stop sign was plainly visible. There was no indication that you slowed at all, let alone stopped. It was a busy time of the morning on a weekday. Of course there is the effect of cannabis being causally related to that (ts 19).
His Honour noted that there had been a plea of guilty and accepted that there was remorse on the part of the appellant. He also took into account the appellant's youth, his traumatic childhood and his mental health issues. His Honour also referred to efforts which the appellant was proposing to take in regards to his rehabilitation. However, he concluded that no sentence other than one of immediate imprisonment was appropriate and took those factors into account in reducing the sentence he would otherwise have imposed for the dangerous driving occasioning death offence. He was of the view that an additional penalty was appropriate for the second offence because it involved a separate victim in a separate vehicle. However, his Honour said that he was reducing that additional sentence to ensure that the overall sentence was not crushing. His Honour was of the view that the appropriate sentence was one of 2 years and 8 months' imprisonment for the dangerous driving causing death, and 4 months' imprisonment for the dangerous driving causing bodily harm; this made a total effective sentence of 2 years and 10 months' imprisonment.
His Honour then turned to the question of whether the sentence could be suspended and referred again to the aggravating and mitigating factors. He also specifically referred again to the intention of the appellant to rehabilitate himself. However, his Honour was of the view that the circumstances of the offending, particularly the intoxication with cannabis, the level of inattentiveness, the fact that a 16‑year‑old boy was killed in the accident and the need for general deterrence required that the sentence be one that was immediately served.

The merits of the appeal

The relevant principles applying to an appeal against sentence are well known. They are conveniently summarised in Wilson v The State of Western Australia [2010] WASCA 82. That case related to an appeal to the Court of Appeal under pt 3 of the Criminal Appeals Act 2004 (WA) but the principles are materially the same for appeals from a magistrate under pt 2 of the Act.
A ground of appeal which alleges that a sentence is manifestly excessive asserts the existence of an implicit error: Royer v The State of Western Australia [2009] WASC 139; (2009) 197 A Crim R 319 [126] (Buss JA); Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 [6] (Gleeson CJ, Hayne J). A claim of manifest excess depends on establishing implied error in the type or length of the sentence imposed. The implied error that must be established is that a sentence of the nature or length imposed could not have been reached in the exercise of proper sentencing discretion.
It is not enough that an appellate court considers that it would have imposed a different sentence; it must be established that there has been some error in exercise of the sentencing discretion: House v The King [1936] HCA 40; (1936) 55 CLR 499, 504 ‑ 505 (Dixon, Evatt and McTiernan JJ). The discretion that the law invests in sentencing judges is of vital importance in the administration of justice: Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 [15].
In order to determine if a sentence is manifestly excessive it is necessary to view it in light of the maximum penalty prescribed by law for the offence, the standard of sentencing customarily observed for that type of offence, the level of seriousness of the circumstances of the offending and the personal circumstances of the offender: Chan (1989) 38 A Crim R 337, 342 (Malcolm CJ); McDougall v The State of Western Australia [2009] WASCA 232 [12] ‑ [13] (McLure P).
The magistrate in this case characterised the offending as not in the worst category but nonetheless as extremely serious. That was a conclusion that was clearly open to his Honour having regard to the following factors:
1.the incident occurred in circumstances where the other vehicle had the right of way and where there was no reason to expect that the appellant might contravene the stop sign in the way that he did;
2.the stop sign was plainly visible and no explanation was provided for why it was not obeyed;
3.there was no indication that the appellant had slowed down at all. This indicated that the appellant had not only failed to observe the stop sign but also not given way to the other vehicle;
4.the incident occurred in the morning and in circumstances where there was nothing to impair visibility.

The most serious aggravating feature, however, was that the appellant was under the influence of cannabis to such an extent as to be incapable of having proper control of his vehicle. It was for this reason that the appellant was charged under s 59(1)(a) of the Road Traffic Act which increases the maximum penalty, in the absence of other circumstances of aggravation, from one of 10 years' imprisonment to one of 20 years' imprisonment. This is a significant indicator of the level of seriousness of an offence of this type. That the jurisdictional limit of the penalty which could be imposed by the magistrate for the dangerous driving causing death was one of 3 years does not alter the fact that the legislature has seen fit to significantly increase the maximum penalties for offences committed in the presence of disabling levels of intoxication. Similarly the appellant was convicted under s 59A(1)(a) in respect of the bodily harm offence because he was driving whilst affected by cannabis. This increased the maximum penalty for that offence from 9 months (for a first offence) to 7 years' imprisonment.
In my view, the magistrate was also correct to consider that the appellant's conduct was aggravated by the fact that he was not entitled to be driving at all at the time when the incident occurred. The appellant's act in driving the car in circumstances where he had no driver's licence, was not driving in compliance with the terms of a learner's permit and was in any event disqualified due to non‑payment of fines was a deliberate act in serious defiance of the law. He was also, as he must well have known, facing further charges arising out of the incident in January. This demonstrates a persistent disregard for both the law and the safety of other road users.
The personal circumstances of the appellant were of course relevant, in particular the fact that he was a young man. However, it is clear that the magistrate gave appropriate consideration to personal factors but was, in the end, not convinced that they justified a sentence other than one of immediate imprisonment. That was an unremarkable exercise of the sentencing discretion.
As to the standards of sentences customarily observed, there is no established range for offences of this kind. That is because of the great variation that is possible in the circumstances of the offending and the personal circumstances of offenders: The State of Western Australia v Olive [2011] WASCA 25 [74] (Buss JA, McLure P and Mazza J agreeing). It must also be noted that it is not unusual in cases of this kind for offenders to have previous good character and to show remorse and anguish over the dreadful consequences of the offending: The State of Western Australia v Butler [2009] WASCA 110 [10] (Wheeler JA, Pullin JA agreeing).
The appellant referred in submissions to a number of cases that were suggested as being comparable. These included Easthope v Whitney [2011] WASC 190, Winwood v Brown [2011] WASC 123, Hunt v Callaghan [2011] WASC 10 and Taylor v The State of Western Australia [2009] WASCA 226. However, none of those cases involved driving whilst incapacitated by the use of drugs, which increased the maximum penalty from 10 to 20 years.
When regard is had to cases involving offences of the type committed here the sentences imposed by the magistrate are not shown to be inconsistent, to the contrary. In saying that, it is important to recognise that each case will differ in regard to the facts and personal circumstances of the offender. Nonetheless, to the extent that they are of assistance, the other cases involving sentences in respect of s 59(1)(a) reveal that higher penalties were imposed in those cases than was imposed here.
In The State of Western Australia v Barron [2010] WASCA 27 the offender was convicted of one count of dangerous driving occasioning death under s 59(1)(a) and received a term of 7 years and 6 months' immediate imprisonment that was upheld on appeal. In that case, the offender had an appalling traffic record with multiple previous convictions for dangerous driving causing death, driving without a licence and driving with excess blood alcohol. Furthermore there was an absence of a number of the mitigating factors that are present in the appellant's case.
In The State of Western Australia v Butler the offender was charged with one count of dangerous driving occasioning death: s 59(1)(a) and one count of dangerous driving occasioning bodily harm: s 59A(1)(a). He was sentenced following pleas of guilty in the District Court to a total effective term of 3 years and 8 months' immediate imprisonment. A State appeal against that sentence was dismissed, though it was noted that the sentence imposed 'may be regarded as towards the lower end of an appropriate range of sentences for offences of this kind. It might indeed be characterised as lenient' [23] (Wheeler JA, Pullin JA agreeing). In Butler the offender's vehicle struck a mother and young baby after the offender accelerated to a dangerous speed for a brief period for the purpose of performing a dangerous manoeuvre. In that case the offender had a blood alcohol level which was calculated to have been 0.166% at the time of the incident. The offender in Butler had become intoxicated the previous evening and the accident occurred some ten to eleven hours after he had finished drinking. That case is, as the magistrate noted, reasonably close to the facts of this case. In Butler there were also significant mitigatory factors including that the offender was a relatively young man, had entered a plea of guilty at the earliest opportunity and was otherwise of good character having only one previous traffic conviction. It was also accepted that he was genuinely remorseful and had taken steps to address the alcohol problem that had led to his offending.
As was noted in Butler, the maximum penalty of 20 years' imprisonment for the offence of a dangerous driving causing death where the offender was under the influence of drugs or alcohol to such an extent as to be incapable of having proper control of the vehicle is the same as for the offence of aggravated dangerous driving causing death and motor vehicle manslaughter. This is plainly an indication that the legislature wished to reflect in the penalty the value to be placed on human life and that to cause a death in such circumstances was particularly egregious. The loss of life will thus be a particularly important consideration in such cases: The State of Western Australia v Gibbs [2009] WASCA 9 [89] (Miller JA). It is also relevant to note that the post‑transitional range for motor vehicle manslaughter sentences is between 2 years and 6 years 8 months: Penny v The State of Western Australia [2006] WASCA 173; (2006) 33 WAR 48 [16], [79] ‑ [87] (McLure JA, Buss JA)
As regards the question of suspension, the magistrate was clearly correct to rule out its appropriateness. The appellant's prior record disclosed a persistent disregard for the law. The appellant had had, on multiple occasions, the opportunity to learn from his mistakes and heed the warnings not only that his behaviour was dangerous, but that serious consequences could result. As is evident from the record, he chose to ignore those warnings, and the magistrate was correct to infer that a custodial sentence was necessary to incorporate the necessary degree of personal deterrence.
Having regard to the comparable cases, and in particular Butler, it is impossible to conclude that the sentence imposed here was inconsistent with sentences imposed for similar offences. Having regard to all of the relevant circumstances I am unable to accept that the sentence in this case was manifestly excessive. It was a sentence that was clearly open to the magistrate and no error has been demonstrated.
As regards the second ground, the appellant seeks to invoke the totality principle. That principle has two limbs, firstly, that a total effective sentence should be a just and appropriate measure of the total criminality involved and secondly, that an overall sentence should not be crushing: Giglia v The State of Western Australia [2010] WASCA 9 [43] (Owen JA, McLure P and Pullin PA agreeing).
The second ground and the written and oral submissions in respect of it made no reference to the first limb of the totality principle. Rather the contention was that the total overall sentence was crushing having regard to the appellant's youth.
This argument depends upon the court drawing the conclusion that, notwithstanding that the sentence of 2 years and 6 months on the first charge was not manifestly excessive, somehow the imposition of an additional 4 months transformed the sentence into one that was crushing 'in the sense that it would destroy any reasonable expectation of a useful life after release': Giglia [43]. A sentence has been described as falling into this category 'when it leaves the offender with no hope for the future or when it would provoke a feeling of hopelessness in the defendant if and when he is released or where it destroys a reasonable expectation of a useful life after release': Jarvis v The Queen (1993) 20 WAR 201, 205 (Ipp J).
It is impossible to conclude that a cumulative sentence of 4 months for the dangerous driving occasioning bodily harm offence resulted in a total effective sentence that was crushing in the proper use of that term. That is not to say that a total sentence of 2 years and 10 months may well seem to be a long time for a young man. Nonetheless, it is a sentence that affords the appellant the realistic prospect of release on parole and of rehabilitation.
For those reasons leave in respect of the grounds of appeal must be refused and the appeal dismissed.