Grills v Ng
[2000] WASCA 294
•11 OCTOBER 2000
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: GRILLS -v- NG [2000] WASCA 294
CORAM: PARKER J
HEARD: 5 OCTOBER 2000
DELIVERED : 5 OCTOBER 2000
PUBLISHED : 11 OCTOBER 2000
FILE NO/S: SJA 1106 of 2000
BETWEEN: DAVID GRILLS
Appellant
AND
CHEE PENG NG
Respondent
Catchwords:
Criminal law - Appeal - Dangerous driving causing death of one passenger and grievous bodily harm to another - Two distinct charges - Whether penalties may be imposed for both offences
Legislation:
Sentencing Act 1995 (WA), s11(1)
Result:
Appeal allowed
Fine imposed
Representation:
Counsel:
Appellant: Ms V R Campbell
Respondent: No appearance
Solicitors:
Appellant: State Director of Public Prosecutions
Respondent: No appearance
Case(s) referred to in judgment(s):
Geary v R, Kyros v R, unreported; CCA SCt of WA; Library No 930060; 3 February 1993
Phillips v Carbone (1992) 10 WAR 169
Plenty v Bargain [1999] WASCA 67
Case(s) also cited:
Nil
PARKER J: On 7 December 1999 the respondent was the driver of a motor car in the suburb of Lynwood. There were four passengers in his vehicle. At about 9.30 pm when overtaking another vehicle the respondent accelerated to some 90 kilometres per hour in a 70 kilometre per hour zone. He changed lanes to overtake the other vehicle. During this manoeuvre he lost control of his vehicle, causing the rear to veer sharply to the right and then back to the left, crossing the front of the vehicle which the respondent had been in the course of passing.
The respondent's vehicle then mounted the left-hand kerb of the two-lane carriageway and the left front of the vehicle hit a wooden power pole on the verge. There was severe damage to the left front and the left front passenger's compartment of the respondent's vehicle. One passenger in the left front seat, Mr Kim Hang Lau, received severe head injuries from which, unfortunately, he died. A passenger in the rear seat, Mr Boon Pin Lau, received a fracture to the base of the skull. While this injury was likely to endanger life, he in fact survived and has, or is still, recovering.
The respondent was charged in the Court of Petty Sessions at Perth with two offences, dangerous driving causing the death of Kim Hang Lau and dangerous driving causing bodily harm to Boon Pin Lau, both offences being contrary to s 59(1) of the Road Traffic Act 1974.
On 28 April 2000 the respondent pleaded guilty to both offences before a Stipendiary Magistrate. After a careful consideration of the circumstances, the nature of the offences and the personal circumstances of the respondent, the Stipendiary Magistrate imposed fines of $6000 for the offence of dangerous driving causing death and $2000 for the offence of dangerous driving causing grievous bodily harm. The learned Magistrate also ordered the respondent to pay costs on both complaints and disqualified the respondent from holding or obtaining a motor driver's licence for five years.
In arriving at the different penalties, the comments of the learned Magistrate reveal he had regard to the distinction between the consequences of death and grievous bodily harm and, in addition, he consciously sought to avoid twice punishing the respondent for the one act of dangerous driving which was an element common to each of the two offences.
On the initiative of the learned Magistrate himself, pursuant to s 37(2) of the Sentencing Act 1995, on 9 June 2000 the penalty for the offence of dangerous driving causing grievous bodily harm, that is, the fine of $2000, was "struck out". The transcript of the proceedings on that day reveals that the learned Magistrate acted on the basis that, on his understanding of s 11(1) of the Sentencing Act, the respondent should not have been sentenced for more than one of the offences; that is, he took the view that the evidence necessary to establish the commission of one of the two offences was also the evidence necessary to establish the commission by the respondent of the other offence.
The appellant before me, who was the original complainant, now appeals by leave granted by Hasluck J on 10 July 2000. The grounds on which the appeal is pursued may be summarised as that the learned Magistrate erred in law, first, in concluding that the evidence to establish the commission of both offences by the respondent was the same and, secondly, in applying s 11 of the Sentencing Act in these circumstances as the evidence to establish the two offences was necessarily different, so that, thirdly, the learned Magistrate erred in striking out the penalty of $2000 and purporting to impose no penalty for the offence of dangerous driving causing grievous bodily harm to which the respondent had pleaded guilty.
Section 11(1) of the Sentencing Act is in the following terms:
"11(1)If the evidence necessary to establish the commission by a person of an offence under the law of this State is also the evidence necessary to establish the commission by that person of another such offence, the person may be charged and convicted of each offence, but is not to be sentenced for more than one of the offences."
It is significant, in my view, that the provision refers to the evidence necessary to establish the commission by a person of an offence and to the evidence necessary to establish the commission by that person of another such offence. There can be no doubt that to establish an offence of dangerous driving causing death it is necessary to lead evidence inter alia that the driving caused the death of the unfortunate victim. By way of contrast, to establish an offence of dangerous driving causing grievous bodily harm to a different victim, it is necessary to lead evidence inter alia that the driving caused grievous bodily harm to that other victim. Even though the same act of dangerous driving led to the death of one person and caused grievous bodily harm to the other person, different evidence must be led to establish each of the two distinct offences. That evidence must differ in the way which I have just identified.
So it is that the evidence necessary to establish each of the two offences charged in this case cannot be the same. In my view, therefore, the learned Magistrate erred in concluding that s 11(1) applied in the present case. In this respect I note that a similar view was reached by McKechnie J in Plenty v Bargain [1999] WASCA 67 at [69] - [72].
Section 11 of the Sentencing Act was enacted in 1995. It replaced what was formerly s 16 of the Criminal Code. Section 16 operated by reference to the "act or omission" of an offender. As indicated, s 11 of the Sentencing Act relevantly operates by reference to the evidence necessary to establish the commission of offences. The contrast between the two concepts is to be found within s 11 itself as s 11(3), which deals with a very specific situation and which is not applicable to the present case, does still operate by reference to the act or omission of the offender.
In my view, the language of s 11(1) serves to make its intended operation in a case such as the present more clear than the language of the former s 16 of the Criminal Code. Even so, s 16 of the Criminal Code, when properly understood, would not have precluded the imposition of punishment for each of the two offences of which the respondent was convicted in this case - see Phillips v Carbone (1992) 10 WAR 169 at 399 per Pidgeon ACJ, 410 - 411 per Nicholson J and 412 - 413 per Ipp J, and also Geary v R, Kyros v R, unreported; CCA SCt of WA; Library No 930060; 3 February 1993 per Owen J at 11 - 14, Rowland and Franklyn JJ concurring.
In my view the learned Magistrate misdirected himself in law in concluding that s 11 precluded the imposition of a distinct penalty for each of the two offences of which the respondent was convicted on his own plea of guilty. It is unfortunate for the respondent that this error occurred without any fault on his part as the learned Magistrate acted on his own motion, obviously of course with the best intentions, but nevertheless erroneously.
It is necessary in the circumstances to correct the error of the learned Magistrate. While it is possible to remit the matter back to the Court of Petty Sessions for the reimposition of penalty, it appears to me in the present circumstances that is both unnecessary and it would involve unnecessary delay and cost.
The reasons of the learned Magistrate when he considered the question of penalty reveal that he did so having regard to the relevant considerations and there is every reason to think that the views which the learned Magistrate initially reached as to the appropriate sentence are appropriate in all the circumstances. In particular the learned Magistrate took care to avoid twice punishing the respondent in respect of the one act of driving in a manner dangerous to the public which was common to both offences.
For these reasons the appeal should be allowed. The decision of the learned Magistrate on 9 June 2000 should be set aside and in respect of the offence of dangerous driving causing grievous bodily harm to Boon Pin Lau, which was charge number 12457 of 2000, the respondent should be fined $2000 and should pay the costs of that complaint fixed at $57.70 and he should be disqualified from holding or obtaining a motor driver's licence for five years from 28 April 2000.