Kershaw v The State of Western Australia
[2014] WASCA 111
•23 MAY 2014
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: KERSHAW -v- THE STATE OF WESTERN AUSTRALIA [2014] WASCA 111
CORAM: McLURE P
BUSS JA
MAZZA JA
HEARD: 13 NOVEMBER 2013
DELIVERED : 23 MAY 2014
FILE NO/S: CACR 92 of 2013
BETWEEN: PAUL STEWART KERSHAW
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :FENBURY DCJ
File No :IND BUN 81 of 2011
Catchwords:
Criminal law - Appeal against sentence - Dangerous driving causing death - Manifest excess - Totality principle - Turns on own facts
Legislation:
Road Traffic Act 1974 (WA), s 59(1)(b)
Result:
Application for extension of time refused
Appeal dismissed
Category: D
Representation:
Counsel:
Appellant: Mr A J Robson
Respondent: Ms S H Linton
Solicitors:
Appellant: Legal Aid (WA)
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Barron v The State of Western Australia [2010] WASCA 27
Brown v The State of Western Australia (2011) 207 A Crim R 533
Devine v The State of Western Australia [2010] WASCA 94; (2010) 202 A Crim R 1
Easthope v Whitney [2011] WASC 190
Eves v The State of Western Australia [2008] WASCA 7; (2008) 49 MVR 259
Farmer v The State of Western Australia [2007] WASCA 219
Fisher v The Queen [1999] WASCA 122
Gavin v The Queen (1992) 6 WAR 195
Heferen v The Queen [1999] WASCA 81; (1999) 106 A Crim R 89
Herbert v The Queen [2003] WASCA 61; (2003) 27 WAR 330
Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520
Hunt v Callaghan [2011] WASC 10
Jiminez v The Queen [1992] HCA 14; (1992) 173 CLR 572
Kay v The Queen [2004] WASCA 222; (2004) 147 A Crim R 401
King v The Queen [2012] HCA 24; (2012) 245 CLR 588
Koltasz v The Queen [2003] WASCA 38
Libri v The State of Western Australia [2013] WASCA 113
Longbottom v The State of Western Australia [2008] WASCA 203; (2008) 38 WAR 396
Lutumba v The State of Western Australia [2013] WASCA 172
McBride v The Queen [1966] HCA 22; (1966) 115 CLR 44
Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
Munda v The State of Western Australia [2013] HCA 38; (2013) 87 ALJR 1035
Nguyen v The State of Western Australia [2007] WASCA 114
Penny v The State of Western Australia (2006) 33 WAR 48
Pike v Becker [2012] WASC 397
R v Lawrence (1980) 32 ALR 72
R v Olbrich [1999] HCA 54; (1999) 199 CLR 270
R v Ruka [2009] QCA 113
R v Storey [1998] 1 VR 359
R v Wilkins (1988) 38 A Crim R 445
Roffey v The State of Western Australia [2007] WASCA 246
Taylor v The State of Western Australia [2009] WASCA 226
The State of Western Australia v Butler [2009] WASCA 110
The State of Western Australia v Garlett [2007] WASCA 274
The State of Western Australia v Gibbs [2009] WASCA 7
The State of Western Australia v Olive [2011] WASCA 25; (2011) 57 MVR 269
Timbrell v The State of Western Australia [No 2] [2013] WASCA 269
Wilson v The State of Western Australia [2010] WASCA 82
Wimbridge v The State of Western Australia [2009] WASCA 196
Winwood v Brown [2011] WASC 123
Wood v The Queen [2002] WASCA 95
INDEX
McLURE P:
Legal principles and legislative framework
BUSS JA:
The application for an extension of time
The grounds of appeal
The reasons of each of McLure P and Mazza JA
The prosecutor's opening submissions at the sentencing hearing
Senior Constable Adrian Callaghan's vehicle crash report
The State's witness statements
Defence counsel's submissions at the sentencing hearing
The prosecutor's submissions in reply at the sentencing hearing
The sentencing judge's sentencing remarks
The critical findings of fact made by the sentencing judge
The appellant's personal circumstances and antecedents
The merits of the grounds of appeal
Conclusion
MAZZA JA:
The application for an extension of time
The facts of the offending
The appellant's personal circumstances
The sentencing remarks
The appellant's submissions
The respondent's submissions
Sentencing principles applicable to the appeal
Ground 1 - were the individual sentences manifestly excessive?
The maximum penalty
Standards of sentences imposed in other cases
The seriousness of the offence
Matters personal to the appellant
Conclusion on the allegation of manifest excess
Ground 2 - did the total effective sentence breach the first limb of the totality principle?
Conclusion and orders
McLURE P: I would grant an extension of time and allow the appeal against sentence.
The appellant was convicted on his fast‑track plea of guilty of two counts of dangerous driving occasioning death contrary to s 59(1)(b) of the Road Traffic Act 1974 (WA) (RTA).
On 19 January 2012 the appellant was sentenced to 4 years' imprisonment on each count with the sentence imposed on count 2 ordered to be served partly cumulatively to produce a total effective sentence of 5 years' imprisonment. Eligibility for parole was ordered.
My understanding of the relevant facts found by the sentencing judge differs in material respects from that of Mazza JA. They are as follows. At about 2.50 pm on 3 February 2011, the appellant drove a Volvo prime‑mover towing a loaded, refrigerated semi‑trailer in a southerly direction on the Old Coast Road at Myalup. The Old Coast Road at the location of the incident was a sealed dual carriageway with two lanes of travel in each direction. There was a sealed hard shoulder about 3 m wide along the eastern edge of the road. The road surface was in good condition, the road straight, the weather fine and visibility good.
The appellant had been observed by numerous witnesses travelling in a southerly direction over a distance of about 40 km to be driving erratically by drifting across the central broken white lane into the adjacent right‑hand southbound lane and left onto the gravel shoulder on three or four occasions.
David Tagliaferri had parked his Hyundai Getz on the sealed hard shoulder area at the side of the Old Coast Road to change a flat tyre. Albert De Beer stopped his white Holden Commodore sedan behind Mr Tagliaferri's vehicle. The hazard lights of the Commodore were flashing. Both men were standing near their vehicles. Mr De Beer was a good Samaritan who had stopped his vehicle in a position to provide greater protection for Mr Tagliaferri.
The truck driven by the appellant drifted onto the left‑hand shoulder area and the left side‑front of the truck collided with the rear of the Commodore sedan and then the Hyundai, shunting them. The appellant then swerved the truck into the right‑hand southbound lane nearly causing the rig to topple over. The appellant brought the truck under control and stopped south of the scene of the incident. Both Mr Tagliaferri and Mr De Beer died as a result of the collision.
The appellant was not speeding. His truck was travelling at 96 km per hour in a 110 km per hour zone. Alcohol was not a factor, as established by a negative breathalyser test.
The appellant earned his living as a truck driver. At the time of the incident he had been driving for about 13 hours from around 2.00 am that day. He had taken a 30 minute break every 5 hours in accordance with industry standards.
The truck and loaded refrigerated trailer weighed approximately 40 tonnes. The truck had a tendency to pull to the left and this tendency had previously been addressed by the appellant's employer replacing the truck's front tyres but without resolving the problem.
There was a continuous white line on the eastern edge of the road but no 'rumble strip', a device designed to alert a driver that their vehicle is too close to the edge of the road.
Recognising that he had to be satisfied beyond reasonable doubt of any aggravating facts, the sentencing judge found that for 'at least 300 [m]' before the collision there was 'a clearly visible and glaringly obvious hazard' on the edge of the road (ts 42). He accepted the appellant's statement that he did not see the hazard until the last second before his truck hit it. On that basis, the sentencing judge found that the appellant had failed to keep a proper lookout on the road ahead. There was a conflict of evidence as to the cause of this failure.
The appellant's case at the sentencing hearing was that immediately prior to the incident he leaned across to change the radio station from the 720 frequency to 684 to get a better reception and as he did so he momentarily took his attention from the road.
The sentencing judge said:
I do find it difficult … to accept your explanation given through your counsel but if it is accurate … then … you appear to have been totally unaware you were approaching the other two vehicles parked off the edge of the highway, at 96 kilometres an hour for what must have been a relatively long period of time over a considerable distance, hundreds of metres, and totally unaware your semi‑trailer was drifting left off the roadway. In that scenario there was a high degree of driving fault present. It could be reckless driving really, reckless behaviour of a high magnitude, and indicates a case which is a very serious example of dangerous driving causing death, in my opinion (ts 43 ‑ 44).
Leading up to this statement, the sentencing judge had suggested the hazard was visible for about 54 seconds (ts 43). However that estimate was based on the hazard being visible for 1.5 km (ts 32), not 300 m as he had earlier found. At a speed of 96 km per hour, a distance of 300 m would be covered in around 11.5 seconds.
The sentencing judge said that the most likely scenario was that the vehicle driven by the appellant drifted to the left, uncorrected at the critical moment, because his eyes were closed for more than 5 seconds before the collision as he was battling fatigue and possibly the after effects of having taken prescription medication that had a tendency to make a person drowsy. However, the sentencing judge recognised that this was 'speculative' and continued:
[I]f I was to compare the two scenarios I do not think there is much to be chosen between them in terms of judging criminality, particularly as I also find that having regard to the statements of a number of witnesses who observed your vehicle over time … I think you knew you were tending to doze and you should have stopped [and] rested (ts 44).
It seems the sentencing judge's position was that whilst the exact reason for the appellant's failure to keep a proper lookout was unknown, fatigue was established. The sentencing judge in the quoted passage does not make an express finding that at the time of the incident the appellant knew that he was fatigued. The expression 'I think' is not consistent with an objective finding of fact beyond reasonable doubt. However, on my reading of the reasons as a whole the sentencing judge found that the appellant's fatigue, of which he at least ought to have known, contributed to the incident.
There was a conflict of evidence as to the proximity of the parked cars from the edge of the road. The sentencing judge was unable to resolve the conflict other than to find that the Hyundai was east of the continuous white line on the eastern edge of the dual carriageway and continued:
However, I don't think it can be said at all that either of the deceased [were] in any way negligent or careless in where they parked (ts 49).
The appellant was aged 51 at the time of sentencing. He had worked as a truck driver for 17 years, averaging about 120,000 km per year. The appellant's employer advised that he was a reliable, hard working employee who had not been involved in any other truck accident in his 13 years of service with him.
At the time of the incident, the appellant had been diagnosed with depression and was on medication for that condition. The sentencing judge accepted that he was extremely remorseful for his conduct, grieved for the families of the victims and had suffered acute post‑traumatic stress disorder after the incident.
The appellant had a relevant prior conviction which was for dangerous driving causing bodily harm for which he was fined $2,500. The offence was committed on 26 May 2004. The appellant was driving his car when he hit a member of a running group. He did not stop or report the accident and had a blood alcohol level of .087 at the time of the incident.
Legal principles and legislative framework
This court is not entitled to intervene merely because it would have exercised the sentencing discretion in a manner different from the sentencing judge. It is only entitled to intervene if the sentencing judge has made an express or implied material error of fact or law. A claim of manifest excess and a breach of the totality principle asserts the existence of implied error. The appellant has to demonstrate that the outcome is unreasonable or plainly unjust.
The first limb of the totality principle requires that the total effective sentence bear a proper relationship to the overall criminality involved in all of the offences, viewed in their entirety and having regard to the circumstances of the case, including those referable to the offender personally.
In determining whether a sentence is manifestly excessive regard is had to the maximum sentence prescribed by law for the offence, the standards of sentencing customarily observed with respect to offences of that nature, the place which the criminal conduct occupies on the scale of seriousness of offences of that kind and the personal circumstances of the offender.
The highest statutory maximum penalty for dangerous driving occasioning death or grievous bodily harm applies when the offence is committed by a driver who was under the influence of alcohol or drugs or both to such an extent as to be incapable of having proper control of the vehicle (substance induced incapacity) or in 'circumstances of aggravation' as defined in s 49AB of the RTA. There were no circumstances of aggravation in this case.
The statutory maximum penalty under s 59(3)(a) for the offence of dangerous driving occasioning death where the driver has a substance induced incapacity or which occurs in a circumstance of aggravation is, and has been, 20 years' imprisonment since the commencement of the Road Traffic Amendment (Dangerous Driving) Act 2004 (WA) on 1 January 2005. Circumstances of aggravation are where (a) the person was unlawfully driving the vehicle concerned without the consent of the owner; (b) the person was driving the vehicle at a speed that exceeded the speed limit by 45 km per hour or more; or (c) the person was driving the vehicle to escape pursuit by a member of the police force (s 49AB). The maximum penalty of 20 years also applied to cases of motor vehicle manslaughter under s 280 of the Criminal Code (WA). The maximum penalty for that offence has been increased to life imprisonment: Manslaughter Legislation Amendment Act 2011 (WA) (the 2011 Act).
Before 15 March 2008, the statutory maximum penalty for dangerous driving occasioning death in the absence of substance induced incapacity or a circumstance of aggravation was 4 years' imprisonment. The maximum penalty was increased to 10 years' imprisonment by the Road Traffic Amendment Act (No 2) 2007 (WA) (the 2007 Act) which came into effect on 15 March 2008. The maximum penalty of 4 years and later 10 years under the 2007 Act applied to both dangerous driving occasioning death and dangerous driving occasioning grievous bodily harm: s 59(3)(b). Section 59(3)(b) in those terms was deleted by the Criminal Law Amendment (Homicide) Act 2008 (WA) (the 2008 Act) and replaced with what is the current law, which came into effect on 1 August 2008. Under the current s 59(3)(b), the maximum penalty for dangerous driving occasioning death remains 10 years and the maximum penalty for dangerous driving occasioning grievous bodily harm is 7 years' imprisonment.
However, in enacting the 2008 Act the legislature was under the misapprehension that it was increasing the maximum penalty for dangerous driving causing death in the absence of circumstances of aggravation from 4 years to 10 years' imprisonment. The second reading speech of the 2008 Act relevantly states:
In the absence of aggravating circumstances, the maximum penalty for dangerous driving causing death or injury is only 4 years' imprisonment, irrespective of whether death is caused or grievous bodily harm is caused and irrespective of how dangerous the driving is. For example, if a person, driving his own car at 100 kilometres per hour in a 60 kilometre‑per‑hour zone while four times over the legal blood alcohol limit, has a collision, killing the driver of the other vehicle, the maximum penalty available to such an offender is only 4 years' imprisonment. This Bill will increase the penalty to 10 years' imprisonment for such a case.
That same misapprehension is reflected in the 2008 Act explanatory memorandum. I note in passing that having regard to the deeming provision in s 59B(5), the reference to 'four times over the legal blood alcohol limit' in the second reading speech can only be a reference to those categories of drivers (which includes drivers of heavy vehicles) to which the limit of 0.02 g of alcohol per 100 ml of blood (see s 64A) applies. However, it is significant for present purposes that the second reading speech makes it clear that the purpose of increasing the maximum penalty from 4 years to 10 years was to accommodate cases falling within the worst category of offending to which s 59(3)(a) did not apply, and thus bring the maximum penalty under s 59(3)(b) into a coherent scheme with the 20 year maximum penalty for the aggravated form of the offence of dangerous driving causing death. There is no suggestion in the second reading speech of any dissatisfaction with the level of sentences that had been imposed prior to the change in maximum penalty.
The range of sentences customarily imposed does not establish the range of a sound sentencing discretion. Sentences customarily imposed provide a yardstick or reference point for ensuring broad consistency in sentencing, bearing in mind the scope for significant variations in relevant sentencing facts: Brown v The State of Western Australia (2011) 207 A Crim R 533 [6].
Sentences imposed for the offence of dangerous driving occasioning death when the maximum penalty was 4 years' imprisonment are not irrelevant but are of reduced significance because of the increase in maximum penalty. The closest comparable case on the facts under the former law is Eves v The State of Western Australia [2008] WASCA 7 in which an offender was convicted after trial of three counts of fatigue related dangerous driving occasioning death. Before the incident which resulted in the death of three people the offender was warned by passing drivers that there was a problem that required him to pull over. The offender was sentenced to individual sentences of 1 year 8 months on each count. After a successful appeal, his total sentence was reduced to 3 years 4 months. The totality of the offender's criminal conduct as a whole in Eves is significantly higher than that of the appellant in this case who, by contrast, also made a fast‑track plea of guilty.
The appellant relied on a number of single judge appeals including Hunt v Callaghan [2011] WASC 10, Winwood v Brown [2011] WASC 123 and Easthope v Whitney [2011] WASC 190. These were appeals from the Magistrates Court in which the maximum summary conviction penalty for the offence of dangerous driving occasioning death was imprisonment for 3 years. After the commencement of the 2011 Act on 17 March 2012, the summary conviction penalty now only applies where the incident does not cause the death of another person, with the consequence that a charge of dangerous driving occasioning death must be dealt with on indictment. Although the 2011 Act does not apply to the offence committed by the appellant in February 2011, the outcomes in the single judge appeals are also of reduced significance because of the summary conviction maximum penalty of 3 years.
There are two cases in which this court has considered the statutory maximum penalty of 10 years' imprisonment for dangerous driving causing death under s 59(3)(b) of the RTA, Timbrell v The State of Western Australia [No 2] [2013] WASCA 269 and Lutumba v The State of Western Australia [2013] WASCA 172. In Timbrell the appellant was convicted on his plea of guilty of one count of dangerous driving occasioning death for which he was sentenced to 12 months' immediate imprisonment, and one count of dangerous driving occasioning grievous bodily harm for which he was sentenced to 8 months' immediate imprisonment. The terms were made concurrent, resulting in a total effective sentence of 12 months' immediate imprisonment. The appellant drove into an intersection in contravention of a red traffic light. The offender was aged 21 at the time of the offence, had a blood alcohol level of zero, was not speeding and had no prior record. On appeal (Buss JA & Hall J, Mazza JA dissenting) suspended the terms of imprisonment for a period of 9 months.
In Lutumba the offender pleaded guilty to, inter alia, one count of dangerous driving occasioning death for which he was sentenced to 5 years' immediate imprisonment, three counts of dangerous driving occasioning grievous bodily harm for which he was sentenced on each count to 3 years 6 months' imprisonment, and two counts of dangerous driving occasioning bodily harm for which he was sentenced to 4 months' imprisonment on each count. The sentencing judge ordered partial cumulation to produce a total effective sentence of 6 years' immediate imprisonment. The offender was transporting four passengers to the airport. He was travelling dangerously close to the rear of a truck which limited his view of oncoming traffic. At the approach to a right‑hand curve, and in the face of protests from some of his passengers, the offender crossed double white dividing lines onto the incorrect side of the carriageway to overtake the truck which had reduced its speed. The offender's vehicle collided head‑on with an oncoming vehicle. The offender was driving contrary to the conditions of his learner's permit. He was aged 29 at the time of the offending and was a refugee from the Congo whose early life was traumatic. This court upheld the offender's claim that the sentence of 5 years on count 1 was manifestly excessive and in lieu thereof imposed a sentence of 3 years 6 months' imprisonment and a total effective sentence of 4 years 6 months.
It is also relevant to have regard to sentences imposed for the more serious offence of dangerous driving occasioning death in which the maximum penalty is 20 years' imprisonment, including The State of Western Australia v Butler [2009] WASCA 110; The State of Western Australia v Gibbs [2009] WASCA 7; Barron v The State of Western Australia [2010] WASCA 27; and Devine v The State of Western Australia [2010] WASCA 94. For convenience, I will refer to all the circumstances that attract a 20 year maximum under s 59(3)(a) of the RTA as a circumstance of aggravation.
In Butler, the offender pleaded guilty to dangerous driving causing death in a circumstance of aggravation and was sentenced to immediate imprisonment of 2 years and 10 months for that offence as part of a total sentence of 3 years 8 months. Alcohol (a reading in excess of 0.166%) and speed were the causative factors. The offender was speeding on a single carriageway sealed road in a residential area. He accelerated heavily to overtake two vehicles. One of the vehicles had started to turn right. The offender's vehicle collided with that vehicle, mounted the kerb, became airborne and travelled over the front yard and garden of a house, colliding with a baby in a pram and the baby's mother. The baby was killed and bodily harm was caused to her mother. The State appeal against sentence was dismissed.
In Gibbs, the offender pleaded guilty to two counts of dangerous driving occasioning death in a circumstance of aggravation. He drove at approximately 160 km per hour in a 100 km per hour zone before colliding with a motorcycle, killing the rider and pillion passenger. The offender was aged 28 and had no prior convictions of significance. The sentencing judge imposed a sentence of 3 years' immediate imprisonment on each count and a total effective sentence of 4 years 6 months. Those sentences were not disturbed on appeal.
In Barron, the offender was convicted after trial of one count of dangerous driving occasioning death in a circumstance of aggravation. The appellant, with a blood alcohol content of 0.187%, hit and killed a pedestrian walking on the gravel verge of an unlit road. The offender was aged 47 at the time of the offence and had two prior convictions for dangerous driving causing death and a number of convictions for drink driving. An appeal against the sentence of 7 years 6 months was dismissed. That is the highest sentence imposed in this State to date.
In Devine, the offender was convicted after trial of one count of dangerous driving occasioning death and one count of dangerous driving occasioning grievous bodily harm. The offender, who was aged 21 at the time of the offending, collided with a power pole at a speed in excess of 171 km per hour. The offender had no relevant prior record and was remorseful. The appellant was sentenced to a term of 5 years 6 months' imprisonment for the offence of dangerous driving occasioning death and 1 year 6 months' imprisonment for the offence of dangerous driving occasioning grievous bodily harm. The sentences were ordered to be served cumulatively, resulting in a total effective sentence of 7 years' imprisonment. This court reduced the total effective sentence to 6 years' imprisonment.
Sentences for motor vehicle manslaughter imposed prior to the commencement of the 2011 Act were also reviewed in Devine. The sentences ranged between 2 years and 8 years' imprisonment. As is to be expected, the objective circumstances of the offending in the manslaughter cases are at a significantly higher level of seriousness than in the cases of dangerous driving occasioning death in a circumstance of aggravation. See Penny v The State of Western Australia (2006) 33 WAR 48 (and the cases therein reviewed); The State of Western Australia v Garlett [2007] WASCA 274; Farmer v The State of Western Australia [2007] WASCA 219.
The seriousness of the circumstances of the appellant's offending in this case is very significantly less than in the cases involving motor vehicle manslaughter and dangerous driving occasioning death in a circumstance of aggravation. Moreover, the appellant's offending is materially less serious than that of the offender in Lutumba.
When regard is had to all of the relevant cases, it is clear that the sentencing judge's characterisation of the appellant's offending as 'reckless behaviour of a high magnitude' and 'a very serious example of dangerous driving causing death' (ts 44) are dramatic overstatements. What happened here was an accident in the fullest sense of the word, which had very tragic consequences. That is so even if the sentencing judge did (and could) make a finding beyond reasonable doubt that the appellant knew he was fatigued.
Unlike the circumstances of aggravation which attract a statutory maximum penalty of 20 years' imprisonment, driving whilst knowingly fatigued is not a separate criminal offence. As all drivers know, there are varying degrees of fatigue with varying degrees of risk of impairment of driving capacity and fatigue itself can impair a driver's judgment as to the need for a reviving break. Many, if not most, drivers would at some stage in their driving career have had their attention alerted to an unintended drift to the edge of the road by a rumble strip. Section 59(1)(b) is one of the very few criminal offences in this State in which law abiding citizens may have cause to reflect that 'there but for the grace of god go I'.
The appellant does not contend that immediate imprisonment is the wrong type of sentence. He accepts the judgment of the legislature and the community that the offences he committed are serious, having regard to the increased risks and dangers associated with long driving hours and large heavy vehicles and the tragic consequences of his conduct. His prior offence is also significant in the type of sentence imposed. However, the other circumstances of the appellant's offending are towards the lower end of the scale of seriousness. The appellant was driving under the speed limit, was not affected by alcohol or other mind altering substances and had taken driving breaks that were in accordance with industry standards. Further, he pleaded guilty on the fast‑track system and was deeply remorseful. In all the circumstances, the total sentence of 5 years infringes the totality principle. A total sentence of 3 years 6 months' imprisonment is all that is required to satisfy all the recognised sentencing objectives including punishment, retribution and deterrence. To achieve that outcome I would reduce the individual sentences to 3 years 6 months and order total concurrency.
As to the extension of time, the appellant deposes to the fact that after his sentencing he did not have the financial resources to fund an appeal. The pre‑sentence report notes that the appellant had funded his legal costs to that point with the assistance of loans which he was required to repay. On advice from other prisoners, the appellant applied for legal aid in April 2013, which was granted shortly thereafter. An extension of time should be granted to avoid a miscarriage of justice.
For these reasons, I would grant an extension of time within which to appeal, allow the appeal, set aside the sentences imposed by the sentencing judge and the order for partial cumulation, and in lieu thereof,
impose a sentence of 3 years 6 months for each offence and order that the sentences be served concurrently resulting in a total effective sentence of 3 years 6 months. The appellant will be eligible for parole after serving 21 months' imprisonment.
BUSS JA: This is an application for an extension of time to appeal against sentence.
The appellant was convicted, on his pleas of guilty in the District Court on the fast‑track system, of two counts in an indictment.
The indictment alleged that on 3 February 2011, at Myalup, a Volvo FM 480 prime mover driven by the appellant was involved in an incident occasioning the deaths of Albert de Beer and David Tagliaferri, and that at the time of the incident the appellant drove the motor vehicle in a manner that was, having regard to all the circumstances of the case, dangerous to the public or to any person, contrary to s 59(1)(b) of the Road Traffic Act 1974 (WA) (the Act).
Count 1 on the indictment related to Mr de Beer and count 2 related to Mr Tagliaferri.
On 19 January 2012, Fenbury DCJ sentenced the appellant to 4 years' immediate imprisonment on each of counts 1 and 2. The sentence for count 1 was backdated to 16 January 2012. The sentence for count 2 was ordered to commence on 16 January 2013. The total effective sentence was therefore 5 years' immediate imprisonment. A parole eligibility order was made.
Also, his Honour disqualified the appellant from holding or obtaining a motor driver's licence for 10 years with effect from 19 January 2012.
The application for an extension of time
The last date for appealing against sentence was 9 February 2012. The appellant did not file his appeal notice until 23 April 2013. He has filed an affidavit sworn by him and an affidavit sworn by his solicitor, Andrew James Robson, in support of his application to extend time.
On 22 June 2013, Mazza JA referred the application for an extension of time to the hearing of the appeal.
The applicable principles governing the exercise of this court's discretion to extend time are set out in Wimbridge v The State of Western Australia [2009] WASCA 196.
I will consider the merits of the grounds of appeal before deciding whether an extension of time should be granted.
The grounds of appeal
The appellant relies on two grounds of appeal.
Ground 1 alleges that the individual sentences of imprisonment were manifestly excessive. Ground 2 alleges that the total effective sentence of 5 years' immediate imprisonment infringed the first limb of the totality principle.
On 22 June 2013, Mazza JA granted leave to appeal on each of the grounds.
The appellant does not allege that the sentencing judge had made any express error. In particular, the appellant does not challenge any of his Honour's findings of fact.
The reasons of each of McLure P and Mazza JA
I have read the proposed reasons of each of McLure P and Mazza JA.
McLure P would grant an extension of time and allow the appeal. Mazza JA would refuse an extension of time and dismiss the appeal.
A critical difference between their Honours concerns the relevant facts found by the sentencing judge. McLure P states that her understanding of the relevant facts found by his Honour differs in material respects from that of Mazza JA. The actual differences between their Honours in their understanding of the relevant facts as found are not identified.
In these circumstances, it is essential to examine carefully the information before the sentencing judge, the prosecutor's and defence counsel's submissions and his Honour's sentencing remarks to ascertain precisely the findings of fact made by his Honour and the basis on which he sentenced the appellant.
The prosecutor's opening submissions at the sentencing hearing
At the sentencing hearing the prosecutor tendered the State brief. Defence counsel did not object to the tender.
The prosecutor then stated the material facts. He said, relevantly:
(a)On 3 February 2011, at about 2.50 pm, the appellant drove a Volvo FM 480 prime mover, towing a semi‑trailer, in a southerly direction on Old Coast Road at Myalup.
(b)The incident occurred about 1 km north of the intersection of Old Coast Road and Bagieau Road.
(c)At this location Old Coast Road is a sealed dual carriageway with two lanes of travel in each direction. A gravel shoulder about 3 m wide abuts the eastern edge of the carriageway. The northbound and southbound lanes are separated by a median strip about 20 m wide.
(d)At the material time the road surface was in good condition. It did not contain any potholes, nor was it covered with any contaminants. The weather was fine and the visibility good.
(e)Numerous witnesses observed the appellant's vehicle over a distance of about 40 km before the incident. These witnesses were travelling in motor vehicles in a southerly direction on Old Coast Road. They observed that the appellant was driving erratically. His vehicle drifted across the central broken white line of the carriageway and onto the gravel shoulder on three or four occasions.
(f)Mr Tagliaferri had parked his Hyundai Getz vehicle on the gravel shoulder area to change a flat tyre. Mr de Beer stopped his Holden Commodore sedan behind Mr Tagliaferri's vehicle to assist him. Both men were standing near their vehicles.
(g)The appellant's vehicle drifted onto the gravel shoulder area and the left side of the front of his vehicle collided with the rear of the Holden Commodore and then with the Hyundai Getz.
(h)The brake lights of the appellant's vehicle did not illuminate before the collision.
(i)After the collision the appellant swerved his vehicle into the right‑hand south bound lane. It nearly toppled over. He managed to bring the vehicle under control and stopped about 300 to 350 m south of the scene.
(j)Mr de Beer died instantly. Mr Tagliaferri died at Bunbury Hospital a short time later from the injuries he received in the accident.
Senior Constable Adrian Callaghan's vehicle crash report
The State brief included a vehicle crash report prepared by Senior Constable Adrian Callaghan.
The accident scene and the features of Old Coast Road in the vicinity were described.
The report states:
(a)the two south bound lanes are centrally divided by broken white lines;
(b)the outer safety margins of each south bound lane are delineated by solid white edge lines;
(c)on the eastern side of the carriageway the sealed surface extends about 1.4 m beyond the solid white edge line;
(d)a compressed gravel shoulder abuts the sealed surface;
(e)the carriageway is relatively straight and level;
(f)the speed limit is 110 km an hour;
(g)the Holden Commodore was white in colour and its emergency hazard lights had been activated; and
(h)the Hyundai Getz was red in colour.
The report also states that at the material time an MT Data Multifunction GPS/Communications System was attached to the appellant's vehicle. An analysis of data from this device revealed that during the 16‑minute period before the collision the appellant's vehicle travelled 25 km at a constant speed of 96 km an hour.
Senior Constable Callaghan referred to witness statements which said that Mr de Beer and Mr Tagliaferri were standing on the eastern side of the carriageway between the two parked vehicles.
The State's witness statements
The State brief included numerous witness statements from people travelling in motor vehicles in a southerly direction on Old Coast Road who observed the appellant's vehicle before the collision.
Maria Hammond said she followed the appellant's vehicle for 'about a couple of kilometres, from a safe distance of about 100 metres'. She observed that:
(a)during the period she followed the appellant's vehicle, the vehicle '[crossed] the solid left line of the carriageway approximately three times'; and
(b)on one of those occasions, the vehicle's left wheels entered 'onto the left side gravel shoulder before the driver pulled back onto the bitumen road abruptly'.
Ms Hammond witnessed the accident. She said the tyres of the appellant's vehicle 'crossed the solid left line of the carriageway by about a metre or so'; she did not recall seeing any brake lights illuminated on the vehicle; she saw a large cloud of dust and 'the truck over‑react and come back onto the road violently'; the vehicle 'almost looked as though it was going to topple over as it was on quite a lean'; and the driver of the vehicle 'managed to gain control of the vehicle enough to steer back into the left lane, or outside lane, prior to pulling off the road and coming to rest about 300 metres down the road'.
Andria Cowling was travelling about half a kilometre behind the appellant's vehicle. She said:
(a)the appellant's vehicle was 'doing what I would describe as a jiggle'; the vehicle 'moved slightly to the left of the lane and then back again'; the back of the vehicle 'swayed about'; and
(b)about 10 or 15 minutes later she saw the appellant's vehicle 'make a bit more of a pronounced movement'; this movement was 'a bit … sharper, the truck just swayed but it was [a] bit more of a pronounced sway than the first one'; the movement was 'to the left and then sharply back to the right'.
Ms Cowling also witnessed the accident.
John Greenfield, who was travelling with his neighbour Maureen Neill and her father, said the appellant's vehicle was 'all over the road'. He explained:
The first instance I saw him drift into the right hand lane was just south of the Old Coast Road turnoff.
He had been in the left hand lane, he drifted into the right hand lane about half his truck width then suddenly hooked it back quite quickly.
Then he drifted out of the left lane, most of the road has a bumper strip along there, and he went maybe only a foot or 18 inches, not as far as he did on the right hand side.
A little while later he came across into the right hand lane again about half the width of his truck and hooked it back again.
I said to Maureen that I didn't want to be close or behind this fellow.
When he hooked back to go left again, I accelerated to go past him.
Maureen said that he looked like he was half asleep or something like that as we went past.
I was concentrating on keeping an eye on the front of his truck in case he decided to come over.
Once I was clear of him, I pulled back into the left hand lane and kept watching the road ahead.
I was half watching the truck in my rear view mirror.
Maureen called out that he was drifting again or he's going to run off the road, I don't know her exact words.
Maureen Neill, who was a passenger in Mr Greenfield's car, described what she observed about the appellant and his vehicle:
The truck was moving around in the lane quite a bit and on occasions would cross the white line and into the right hand lane and then would go back close to the gravel on the left hand side of the road.
We were following the truck for less than 5 minutes. I can't definitely say that the truck was not speeding.
John pulled out to pass the truck, as we passed the truck in the right lane I looked up to the driver and noticed that his eyes were closed.
I immediately told John.
We pulled back into the left hand lane and continued driving.
I kept looking behind me and could see the truck swerving still.
About 4 or 5 minutes after we passed the truck I saw two people parked on the left hand side of the road.
The cars were fairly close to the road but in the gravel.
I could see one person playing with a tyre and the other person appeared to be helping him. I don't remember what either person was wearing.
One male was bent down at the back wheel of the smaller car on the road side of the vehicle.
I can't recall exactly where the other person was.
There was a white car or possibly a ute and a smaller [reddish] or pink car.
We continued driving and I kept looking around because I was concerned about the truck.
At some point when I was looking out the rear window of the car I noticed a large flash and then a lot of dust.
I said to John, 'That truck has hit those cars.'
David Broere was driving south on Old Coast Road, in front of the appellant's vehicle, before the incident occurred. The appellant was about 200 m behind Mr Broere as they passed a truck bay. Mr Broere thought the appellant was going to pull into the truck bay because 'his truck went more than halfway across the white line that runs parallel to the Freeway'. However, the appellant's vehicle 'pulled back into the left hand lane'. A little later, as Mr Broere was travelling up a hill, the appellant was about 100 m behind him. As Mr Broere approached the crest of the hill, he noticed that the left wheels of the appellant's vehicle 'were nearly into the gravel on the left side of the road'. The right wheels were only about half a metre to the right of the continuous white line on the side of the road. Mr Broere had not seen the appellant's vehicle move to that area but he did see the vehicle 'coming back into the left lane'. Mr Broere witnessed and described the circumstances of the collision.
Defence counsel's submissions at the sentencing hearing
At the sentencing hearing defence counsel submitted, relevantly:
(a)At the time of the collision the appellant's vehicle was to the east of the solid white edge line but was not on the gravel shoulder (ts 8).
(b)The appellant's version of events was that, immediately before the accident, 'he leaned across [the cabin of his vehicle] to change the radio station … to get better reception' (ts 9). This 'momentarily took his attention from the road' (ts 9).
(c)It was 'quite possible that [the appellant] saw [Mr de Beer's and Mr Tagliaferri's vehicles], registered that they were travelling in front of him, leant over to deal with the radio and then, when he looked up, realised that they were stopped and it was too late' (ts 10).
(d)On the day in question the appellant had driven three trucks. When the accident occurred he was driving the third of the trucks. The appellant maintained that 'the wheel alignment [of this vehicle] was such that it was pulling to the left on the day and that he had to constantly bring it back to the right' (ts 11).
(e)The appellant must have seen Mr de Beer's and Mr Tagliaferri's vehicles 'a long distance before' the accident, the 'driving position of [the appellant's vehicle was] an elevated driving position', and there was no suggestion that the appellant's view of the other vehicles was obscured (ts 14).
(f)There were 'some forms of exaggeration' by the witnesses who observed the appellant's vehicle over a distance of about 40 km before the accident (ts 14 ‑ 15). Counsel said 'the [appellant's vehicle] was probably moving to the left and right as some of these witnesses say, but not to the extent that some of the witnesses are saying' (ts 15). Defence counsel's submission was that 'the explanation for that movement to the left and to the right is the camber of the road coupled with the steering alignment being slightly out' (s 15).
(g)'Fighting [the appellant's vehicle] constantly … and over a long distance … in itself is tiring' (ts 15).
(h)When the accident happened the appellant had been driving for 13 hours (ts 15). He had rested for half an hour every five hours in accordance with the applicable regulatory framework (ts 15). He had driven 750 km that day (ts 21).
(i)At the material time the appellant was taking prescribed medication for the treatment of depression (ts 26). His medication could cause drowsiness (ts 26).
The sentencing judge put to defence counsel that based upon:
(a)the accident having occurred in 'broad daylight';
(b)the emergency hazard lights on the white Holden Commodore having been activated; and
(c)the evidence of the numerous witnesses who had observed the appellant's vehicle over a distance of about 40 km before the accident,
there was 'room for the view that [the appellant] dozed off' (ts 11).
Defence counsel did not deal with that proposition beyond asserting that the witnesses had exaggerated their evidence in relation to the movement of the appellant's vehicle.
The prosecutor's submissions in reply at the sentencing hearing
At the sentencing hearing the prosecutor submitted in reply, relevantly:
(a)The 'fundamental thread' of the State's submissions was: 'how could [the appellant] have not seen the parked cars on that particular day, at that time, on that road had he been looking?' (ts 29). The sentencing judge interposed: 'Yes. A white car, lights flashing' (ts 30). His Honour added: '[the appellant] couldn't have been looking. Either he was fiddling about in the cab for a recklessly negligent long period of time or he had dozed off … What other scenario is there?' (ts 30).
(b)The State asserted that, rather than 'dozed off', there was 'a combined period of fatigue and a combined distinct period of inattention' (ts 30).
(c)The State brief included photographs of the accident scene, and the vicinity, and they established beyond argument that there was nothing to obscure visibility (ts 30 ‑ 31).
(d)If his Honour accepted that the appellant had been engaging in 'a momentary changing of the radio station, he must have known, had he been looking prior to adjusting the radio, that those cars were parked there' (ts 31).
(e)The vehicle crash report prepared by Senior Constable Callaghan established that Mr de Beer's and Mr Tagliaferri's vehicles were 'clearly visible to south bound traffic as they approached the scene' (ts 31).
(f)In the circumstances, 'the defence submission … that this was momentary inattention by the simple adjustment of a radio dial or a radio button … is not consistent with … the clear objective evidence' (ts 32).
(g)The issue relating to the appellant's prescribed medication is 'a smaller aspect of this case which in effect adds to the potential for fatigue which … is consistent with the … evidence' from the witnesses who observed the appellant's vehicle before the incident (ts 32).
(h)The statements of the witnesses unequivocally described erratic driving by the appellant before the accident, and the erratic driving was 'beyond that of any natural sway' (ts 33 ‑ 34).
(i)If the appellant had been 'fighting the movement of the truck for an extended period of time' and that led to 'fatigue or … tiredness', as asserted by defence counsel, that fact would offer no mitigation and, indeed, would significantly increase the appellant's culpability (ts 34). He should have slowed down and taken 'extra due care and attention' (ts 34).
(j)The appellant had been driving since 2.00 am on the day in question. Although he took the required rest periods, the appellant was suffering from fatigue and he had 'an awareness of his own fatigue' (ts 34).
(k)If the appellant's vehicle had a steering defect the appellant should have taken 'extra due care and attention' (ts 34).
(l)The appellant 'was fatigued, … he was aware of that fatigue and he chose to drive on. The driving behaviour witnessed before the collision is consistent with fatigue and dangerous driving of the kind which ultimately caused this collision. The objective evidence contained in [Senior Constable Callaghan's report] challenges the version put forward by [the appellant] of momentary inattention' (ts 35).
(m)The appellant's 'explanation [of] momentary inattention for the radio adjustment doesn't add up … the inattention could not have been momentary, it must have been extended' (ts 35).
(n)If there was a steering defect, this was an aggravating circumstance 'given [the appellant's] knowledge of that defect and continuation of his journey and … [the appellant] must have seen those two parked vehicles … prior to the radio adjustment and if that is the case he elected to do the radio adjustment notwithstanding the steering defect and notwithstanding his fatigue and notwithstanding the close proximity of those two cars to his vehicle' (ts 35).
The sentencing judge's sentencing remarks
The sentencing judge made findings and comments in his sentencing remarks, relevantly, as follows:
(a)The weight of the appellant's vehicle, including its load, was about 40 tonnes (ts 40).
(b)The appellant had 'good long distance visibility' from his elevated driving position (ts 40).
(c)The appellant's speed was 96 km an hour (ts 40).
(d)At the time of the collision the appellant had been driving for about 13 hours, since about 2.00 am, but had taken the required breaks, being half an hour every five hours (ts 40).
(e)The appellant had taken some prescription medication 'that had a possible side effect of causing drowsiness which [the appellant] would have known' (ts 40).
(f)There was no evidence that the appellant had consumed alcohol or exceeded the speed limit (ts 40).
(g)Although, according to police, the appellant's vehicle was roadworthy with no relevant defects, there was 'some … evidence' to support the appellant's contention that 'the Volvo prime mover had a tendency to pull to the left' (ts 40). In any event, the appellant 'knew of the problem and …counteracted its effect as required during [his] journey' (ts 40). This characteristic of the vehicle afforded the appellant no mitigation (ts 40). His knowledge of the defect tended to 'aggravate [his] criminality, in one view, if the circumstances were that [he] continued driving when [he] knew [he was] having difficulty staying awake' (ts 40).
(h)Mr de Beer's Holden Commodore was 'highly visible' (ts 41). It was white in colour and its hazard lights were flashing (ts 41).
(i)For a 'substantial distance before this collision', at least 300 m, 'there was a clearly visible and glaringly obvious hazard on the edge of the highway', and yet the appellant, on his account, did not see it 'until the last second before [his] truck hit it' (ts 42).
(j)The appellant was not keeping a proper lookout 'to the road ahead' (ts 42). If he had done so he 'could not have failed to see the white Commodore' (ts 42).
(k)On the appellant's version of events as to what he was doing immediately before the accident, the question arose:
Why [was the appellant] not aware of the presence of the flashing white Commodore … on this straight road when [he was] approaching it before [he] turned [his] attention to [his] radio, a period of time when the Commodore must have been clearly visible to anyone looking ahead? (ts 42).
There was 'no explanation' (ts 42).
(l)It would not be the case that the appellant was 'preoccupied with [his] radio, not looking ahead for the entire time between when the white Commodore first became visible and when [his] truck crashed into it' (ts 43). His Honour elaborated:
If you were doing just that for that length of time, that is, fiddling with your radio, then that too amounts to negligence of a very high degree in all the circumstances in my view, the more so when the truck had a tendency to pull to the left as you well knew and again particularly because it was such a massive unit and capable of doing such damage if mismanaged.
Quite frankly, I am most dubious about the reliability of the account of events given to your counsel which is similar to what witnesses say you said at the accident scene (ts 43).
(m)Although his Honour '[found] it difficult … to accept [the appellant's] explanation', if the explanation was accurate, as far as it went, then he appeared to have been 'totally unaware [he was] approaching the other two vehicles parked off the edge of the highway, at 96 kilometres an hour, for what must have been a relatively long period of time over a considerable distance, hundreds of metres, and totally unaware [his] semitrailer was drifting left off the roadway' (ts 44). His Honour added that '[in] that scenario there is a high degree of driving fault present. It could be reckless driving really, reckless behaviour of a high magnitude, and it indicates a case which is a very serious example of dangerous driving causing death' (ts 44).
(n)The only 'alternative scenario', and the one his Honour thought 'more supported by the evidence of the witnesses, and … the [more] likely scenario', is that '[the appellant's vehicle] drifted to the left uncorrected at the critical moment because [his] eyes were closed because [he was] battling fatigue from a very long time at the wheel, some 13 hours, and possibly the after effects of having taken prescription medication that had a tendency to make a person drowsy, and this was for some time, more than 5 seconds before the collision'. His Honour then said:
Whether you had registered that there was a flashing vehicle near the edge of the road up ahead or not will never be known but it seems unlikely you had registered it although, given fatigue and how it can operate, it's not impossible you did see the vehicles but through fatigue didn't react to decision‑making, for example, by perhaps being jolted by the [sight], sitting up, taking notice and increasing your control of your vehicle.
This is speculative, I realise (ts 44).
(o)If 'some sort of criminality comparison were to be made of the two relevant scenarios'; that is, the scenario advanced by the appellant and the scenario his Honour thought more supported by the evidence, 'there [was not] much to be chosen between them in terms of judging criminality, particularly as I also find that having regard to the statements of a number of witnesses who observed your vehicle over time, about 40 kilometres worth of driving before the accident, I think you knew you were tending to doze and you should have stopped [and] rested' (ts 44). His Honour was referring to the witnesses who said they were concerned by the appellant's vehicle 'changing lanes, going off the edge, going onto the lane next door' (ts 44) (emphasis added).
(p)Neither Mr de Beer nor Mr Taggliaferri was 'in any way negligent or careless in where they parked' (ts 49).
(q)There is a need to deter other people 'from continuing to drive when they are too tired to do so safely and this is especially important with respect to drivers of enormously heavy vehicles' (ts 49).
The critical findings of fact made by the sentencing judge
The role of a sentencing judge includes the making of findings of fact, for the purposes of sentencing and to the extent that the judge is able to make relevant findings, on the material received during the sentencing process. See, generally, s 15 of the Sentencing Act 1995 (WA), which provides that, to decide on the proper sentence to be imposed, or on imposing an order in addition to sentence, a court sentencing an offender may inform itself in any way it thinks fit.
An aggravating circumstance is a fact or other circumstance likely to result in a more severe sentence than would otherwise be the case. A mitigating circumstance is a fact or other circumstance likely to result in a less severe sentence than would otherwise be the case. The prosecution must prove an aggravating circumstance beyond reasonable doubt, and the offender must prove a mitigating circumstance on the balance of probabilities. See R v Storey [1998] 1 VR 359, 369, 371 (Winneke P, Brooking & Hayne JJA and Southwell AJA); R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 [24], [25], [27] (Gleeson CJ, Gaudron, Hayne & Callinan JJ).
In the present case, an analysis of data from the MT Data Multifunction GPS/Communications System attached to the appellant's vehicle established that during the 16‑minute period before the collision the appellant's vehicle travelled 25 km at a constant speed of 96 km an hour.
The sentencing judge found in essence that:
(a)the appellant's speed was 96 km an hour (ts 40); and
(b)for at least 300 m before the collision, Mr de Beer's white Holden Commodore was clearly visible to a person in the appellant's position and constituted a glaringly obvious hazard on the edge of the road.
On those unchallenged findings:
(a)the appellant was travelling a distance of about 26.6 m each second; and
(b)Mr de Beer's car was clearly visible to a person in the appellant's position, and constituted a glaringly obvious hazard, for at least 11 seconds before the collision.
His Honour said, correctly in my opinion, that there were only two scenarios which could account for the appellant's failure in the circumstances to avoid the clearly visible and glaringly obvious hazard. One scenario, which reflected the appellant's explanation, was that the appellant was totally unaware he was approaching 'the other two vehicles parked off the edge of the highway' and totally unaware his vehicle 'was drifting left off the roadway' (ts 43 ‑ 44). The other scenario was that the appellant's vehicle 'drifted to the left uncorrected at the critical moment because [his] eyes were closed because [he was] battling fatigue from a very long time at the wheel, some 13 hours, and possibly the after effects of having taken prescription medication that had a tendency to make a person drowsy' (ts 44).
The sentencing judge held, correctly in my opinion, that in the circumstances there was no material difference in the appellant's criminality or culpability under each scenario (ts 44).
I am satisfied, after examining the information before his Honour and the transcript of the sentencing hearing, that the two scenarios identified by his Honour were the only scenarios reasonably open in the circumstances to account for the appellant's failure to avoid the clearly visible and glaringly obvious hazard. It was not suggested, and the information before his Honour did not indicate, that the appellant suffered any relevant physical or mental illness or disability while he was driving (apart from fatigue and apart from possible drowsiness attributable to the medication he had taken) or that the appellant's vehicle had any mechanical defect (apart from the appellant's contention that it had a tendency to 'pull to the left') or that any other fact or circumstance had caused or contributed to the occurrence of the accident.
The sentencing judge did not accept the scenario which reflected the appellant's explanation. His Honour thought the other scenario was 'more supported by the evidence', particularly as 'I also find that having regard to the statements of a number of witnesses who observed your vehicle over time, about 40 kilometres worth of driving before the accident, I think you knew you were tending to doze and you should have stopped [and] rested' (ts 44) (emphasis added). I agree with his Honour's assessment of the scenarios.
In my opinion, his Honour's finding that the appellant knew he was tending to doze and should have stopped and rested was, in the context of his Honour's refusal to accept the scenario which reflected the appellant's explanation, the only inference reasonably open in the circumstances. The appellant had been driving erratically for about 40 km. At a speed of about 96 km an hour it would have taken him about 25 minutes to travel that distance. The erratic driving described by the witnesses, even after allowing for some exaggeration in their descriptions, is consistent only with the appellant dozing or falling asleep briefly, on multiple occasions, but awakening in sufficient time to realise what had happened and to regain control of his vehicle before an accident occurred. Unfortunately, the appellant did not awaken and take corrective action before he collided with Mr de Beer's and Mr Tagliaferri's vehicles and killed them.
So, the critical findings of fact made by the sentencing judge, and established to the criminal standard of proof, were that:
(a)the appellant's vehicle drifted to the left, uncorrected, shortly before the collision;
(b)the appellant was suffering from fatigue;
(c)the appellant was tending to doze while his vehicle was travelling a distance of about 40 km before the accident; and
(d)the appellant knew he was tending to doze and he should have stopped and rested.
The appellant's personal circumstances and antecedents
The appellant was born on 21 December 1960. He was aged 50 at the time of the offending and was 51 when sentenced.
The appellant left school at the end of year 8. At the time of the accident he held a motor driver's licence for heavy combination vehicles. He had been driving trucks for 17 years. During this period he averaged about 120,000 km a year.
The material before the sentencing judge included a report dated 19 December 2011 from Geoff Trainer, a registered psychologist, and a pre‑sentence report dated 5 October 2011.
At the time of the accident the appellant had been diagnosed with depression and was receiving treatment for it. However, his depression did not cause or contribute to the occurrence of the accident. Mr Trainer said the appellant developed post‑traumatic stress disorder as a result of the offences. The appellant had consulted Mr Trainer regularly throughout 2011. Mr Trainer had worked intensively with the appellant to treat the post‑traumatic stress disorder and accompanying problems including 'prior losses, self‑esteem, substance abuse, and [the] dissolution of his marriage'. The appellant commenced drinking alcohol at the age of 14 and was a heavy consumer from the age of 16. Shortly after commencing therapy with Mr Trainer, the appellant acceded to warnings about his abuse of alcohol and stopped drinking. The appellant has attempted to cease using cannabis and has reduced considerably his consumption of this drug both in quantity and frequency of use. The appellant was taking prescribed antidepressant medication and using Valium to overcome insomnia and reduce the symptoms of his post‑traumatic stress disorder. Mr Trainer expressed the view that the appellant had 'shown genuine and profound compassion' for the families of the victims killed in the accident.
The appellant pleaded guilty to the offences at an early stage. His Honour noted the early pleas and the appellant's remorse. These were the most significant mitigatory factors and his Honour recognised those factors by discounting the sentences he would otherwise have imposed (ts 46).
The appellant has a prior criminal record. His previous convictions are predominantly for traffic offences. Of significance, the appellant was convicted in 2004 of dangerous driving causing bodily harm contrary to s 59A(1) of the Act, failing to stop after an accident contrary to s 54 of the Act, a second offence of driving with a blood alcohol level in excess of 0.08% but less than 0.09% contrary to s 64(1) of the Act, and failing to report a traffic accident which involved a person suffering bodily harm contrary to s 56(1) of the Act. These offences were punished by substantial fines and motor driver's licence disqualifications. His Honour recounted the circumstances of the offences as follows:
It was about 6.40 pm on a May night. You were driving your station wagon on a street in Bunbury, Devonshire Street, and a group of runners from the Hash House Harriers running club were running along the northern side of the street. When you approached them you drove over to the middle of the road to go around one group and you observed other runners about. There was another runner ‑ Dr Martin Reid was running by himself on the northern side. He was wearing a headband with a light, a white T-shirt. You continued on and having pulled out and pulled back you then hit Dr Reid and he sustained serious leg injuries, lacerations and things like that. Your vehicle went up on the kerb and you drove on. You did not stop.
Your number was taken and in due course you were approached and made admissions you had been drinking and you failed to report the accident and matters of that kind. That was 2004. It's a long time ago and you were punished for that, heavily fined. You had a blood‑alcohol level calculated at .087 at the time of the accident, being tested some hours later (ts 47).
The sentencing judge received a number of written references about the appellant which spoke well of him.
The merits of the grounds of appeal
An allegation that an individual sentence is manifestly excessive, and an allegation that a total effective sentence infringes the first limb of the totality principle, asserts the existence of implied error.
It is necessary, in determining whether a sentence is manifestly excessive, to examine it from the perspective of the maximum penalty for the offence, the standards of sentencing customarily observed with respect to the offence, the place which the criminal conduct occupies on the scale of seriousness of offences of the kind in question, and the personal circumstances and antecedents of the offender.
The first limb of the totality principle requires that the total effective sentence imposed on an offender who has committed multiple offences must bear a proper relationship to the overall criminality involved in all of the offences (including those, if any, in respect of which the offender is still serving a term of imprisonment), viewed in their entirety, and after having regard to all relevant circumstances, including those referable to the offender personally (and including, for example, the desirability of accommodating any wish to rehabilitate), and the total effective sentences imposed in comparable cases.
The guidance afforded by comparable cases is flexible rather than rigid. The mere fact a sentence is within the range of other sentences imposed for similar offending does not necessarily establish that there was an appropriate exercise of the sentencing discretion in the particular case. Similarly, the mere fact a sentence is outside the range does not necessarily establish that the exercise of the sentencing discretion in the particular case miscarried.
A sentencing range for comparable offences is merely one of the factors to be taken into account in deciding whether an individual sentence is manifestly excessive or a total effective sentence infringes the totality principle. A range of sentences customarily imposed is of significance for the purpose of ensuring broad consistency in the sentencing of offenders in broadly comparable cases. However, a sentencing range for comparable cases does not fix the range of a sound exercise of the sentencing discretion in a particular case.
When this court dismisses an appeal against sentence, and when it allows an appeal against sentence and resentences the offender, this court's decision on the sentencing outcome does not, of itself, fix the upper or lower limit of the range.
The maximum penalty for the offence of dangerous driving occasioning death, contrary to s 59(1)(b) of the Act, is 10 years' imprisonment if, as in the present case, the offence is not committed in circumstances of aggravation. See s 59(3).
There is no tariff for offences of this kind because of the great variation that is possible in the circumstances of the offending and the offenders. See The State of Western Australia v Butler [2009] WASCA 110 [7] (Wheeler JA). The sentence to be imposed in a particular case depends on its individual facts and circumstances, after having regard to the maximum penalty.
It is essential, in examining previous sentencing decisions, to bear in mind that the maximum penalty for dangerous driving occasioning death and for dangerous driving occasioning grievous bodily harm, where the offence is not committed in circumstances of aggravation, was increased from 4 years' imprisonment to 10 years' imprisonment, with effect from 15 March 2008, by s 22(3) of the Road Traffic Amendment Act (No 2) 2007 (WA).
By s 38(3) of the Criminal Law Amendment (Homicide) Act2008 (WA), the maximum penalty for dangerous driving occasioning grievous bodily harm, where the offence is not committed in circumstances of aggravation, was decreased from 10 years' imprisonment to 7 years' imprisonment, with effect from 1 August 2008, but the maximum penalty for dangerous driving occasioning death, where the offence is not committed in circumstances of aggravation, was not amended.
The maximum penalty fixed by Parliament for an offence demonstrates Parliament's view of the gravity of the offence. It must be taken into account in determining, in a particular case, the appropriate sentence.
If Parliament, by a legislative amendment, increases the maximum penalty for an offence, Parliament's new view of the gravity of the offence must be taken into account in deciding upon sentencing outcomes. See R v Lawrence (1980) 32 ALR 72, 110 (Moffitt P); Heferen v The Queen [1999] WASCA 81; (1999) 106 A Crim R 89 [35] (Anderson J, Pidgeon & Steytler JJ agreeing); Fisher v The Queen [1999] WASCA 122 [14] (Malcolm CJ, Ipp & Owen JJ agreeing); Herbert v The Queen [2003] WASCA 61; (2003) 27 WAR 330 [7] (Malcolm CJ); Nguyen v The State of Western Australia [2007] WASCA 114 [13] (Steytler P, McLure JA & Miller AJA agreeing).
An increase in the maximum penalty is an indication that sentences for the offence in question should be increased. See Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 [31] (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel & Bell JJ).
I have considered numerous cases with at least some features comparable to the appellant's offending including Kay v The Queen [2004] WASCA 222; (2004) 147 A Crim R 401; Eves v The State of Western Australia [2008] WASCA 7; (2008) 49 MVR 259; Longbottom v The State of Western Australia [2008] WASCA 203; (2008) 38 WAR 396; Taylor v The State of Western Australia [2009] WASCA 226; Devine v The State of Western Australia [2010] WASCA 94; (2010) 202 A Crim R 1; The State of Western Australia v Olive [2011] WASCA 25; (2011) 57 MVR 269; Libri v The State of Western Australia [2013] WASCA 113; Lutumba v The State of Western Australia [2013] WASCA 172; Timbrell v The State of Western Australia [No 2] [2013] WASCA 269; and the decisions referred to in those cases. I have also had regard to other cases cited by counsel for the appellant. It is unnecessary to reproduce the facts and circumstances or the sentences imposed in the cases I have considered. A review of the case law may be found in my reasons in Devine, Olive and Lutumba.
In my opinion, the appellant's offending was serious. The sentencing judge rightly observed that in Western Australia, where long distances are travelled on public roads, driver fatigue is a significant issue (ts 45). As his Honour noted, there is no doubt that driving a motor vehicle while fatigued is extremely dangerous, especially when the vehicle is a semi‑trailer, weighing 40 tonnes, travelling at 96 km an hour (ts 45). The potential for catastrophic consequences is obvious.
The accident did not happen as a result of momentary inattention on the appellant's part. It was caused by his fatigue and, possibly, the effects of the medication he had taken. He was a very experienced truck driver. The egregious feature of the appellant's culpability was that he was tending to doze while his vehicle was travelling a distance of about 40 km before the accident, and he knew he was tending to doze. He should have stopped and rested. During the period of about 25 minutes leading up to and culminating in the accident, the particular circumstances of the appellant's driving were, in a real sense, dangerous or potentially dangerous to people who were on or in the vicinity of Old Coast Road. See McBride v The Queen [1966] HCA 22; (1966) 115 CLR 44, 49 ‑ 50 (Barwick CJ); Jiminez v The Queen [1992] HCA 14; (1992) 173 CLR 572, 579 (Mason CJ, Brennan, Deane, Dawson, Toohey & Gaudron JJ); King v The Queen [2012] HCA 24; (2012) 245 CLR 588 [46] (French CJ, Crennan & Kiefel JJ).
Appropriate punishment and general deterrence were important sentencing factors.
The principal mitigating factors were the appellant's pleas of guilty on the fast‑track system and his remorse. These matters were properly recognised by his Honour.
The appellant was a man of mature years. He did not have the mitigation of youth or inexperience.
Although the appellant's convictions for a number of serious traffic offences in 2004 did not aggravate the seriousness of the offending in question, they demonstrated that the appellant was not entitled to any leniency on the ground that he was a first offender or the offending was out of character.
I am satisfied that the individual terms of 4 years' immediate imprisonment were not unreasonable or plainly unjust. Each of those sentences was commensurate with the seriousness of the offence after taking into account the maximum penalty, the facts and circumstances of the offending, the vulnerability of the victims, the sentencing dispositions in comparable cases, the appellant's personal circumstances and antecedents and all aggravating and mitigating factors.
Also, I am satisfied that the total effective sentence of 5 years' immediate imprisonment bears a proper relationship to the overall criminality involved in both of the offences, viewed together, and having regard to all relevant circumstances and sentencing factors. It was necessary, in order properly to mark the appellant's overall criminality in
the killing of two victims, to order some accumulation of the individual sentences. See Longbottom [5] ‑ [6] (Steytler P).
The individual sentences and the total effective sentence were within the ranges reasonably open to the sentencing judge on a proper exercise of his discretion.
I am not persuaded that error should be inferred from the sentencing outcome, either in relation to the individual sentences or in relation to the total effective sentence. The individual sentences were not manifestly excessive and the total effective sentence did not infringe the first limb of the totality principle.
The grounds of appeal fail.
Conclusion
I would refuse to grant an extension of time to appeal because the appellant has failed to make out either of the grounds of appeal. The application should be dismissed.
MAZZA JA: On 16 January 2012, the appellant pleaded guilty in the District Court on the fast‑track system to two counts of dangerous driving occasioning death contrary to s 59(1)(b) of the Road Traffic Act 1974 (WA) arising out of a collision involving a heavy vehicle driven by the appellant and two cars on the Old Coast Road at Myalup. The maximum penalty for this offence when committed without circumstances of aggravation (as was the case here) is 10 years' imprisonment. On 19 January 2012, the appellant was sentenced to 4 years' imprisonment on each count. His Honour ordered that the sentence on count 1 commence on 16 January 2012, with the sentence on count 2 to commence on 16 January 2013. Thus the total effective sentence imposed upon the appellant was 5 years' imprisonment. He was made eligible for parole and was disqualified from holding or obtaining a motor driver's licence for 10 years.
The appellant seeks an extension of time to appeal and, if granted, to appeal against the sentence of imprisonment. He has not appealed against the motor driver's licence disqualification.
The appellant does not allege any express error on the part of the learned sentencing judge. Instead, he alleges two implied errors: first, that the individual sentences were manifestly excessive (ground 1); and
second, that the total effective sentence infringed the first limb of the totality principle (ground 2).
The application for an extension of time
The appeal was filed on 22 April 2013, more than 14 months out of time. By any standard, the delay is gross. The affidavits filed in support of the application do not adequately explain the delay. Unless the appellant demonstrates a miscarriage of justice, it would be inappropriate to grant an extension of time. Thus, the question of the extension of time will depend upon an assessment of the merits of the appeal: Gavin v The Queen (1992) 6 WAR 195.
The facts of the offending
At the time of the offences, the appellant was 50 years of age. He was a professional truck driver with approximately 17 years' experience. He held a valid driver's licence for heavy combination vehicles.
On 3 February 2011, the appellant commenced work at about 2 am. That day, he drove a number of vehicles for his employer. It is not disputed that he took a 30‑minute break every five hours as he was required to do. In the afternoon, he drove a prime mover which towed a laden refrigerated semitrailer. The total approximate weight of the rig was 40 tonnes. The appellant was familiar with the prime mover. He had driven it before. He knew that it tended to pull to the left. At approximately 2.50 pm, almost 13 hours after commencing work, he was driving in a southerly direction towards Bunbury on the Old Coast Road at Myalup.
The Old Coast Road is, at this location, a straight and sealed dual carriageway with provision for two lanes of traffic in each direction. Beyond the left lane is a sealed hard shoulder stopping lane, about 3 m wide, delineated from the carriageway by an unbroken white line. The road surface was in good condition, the weather was fine and sunny and the appellant's long distance visibility was good, particularly having regard to the appellant's elevated position in the prime mover. Prior to the collision, witnesses observed the appellant, over a distance of about 40 km, driving erratically by drifting across the central broken white line and onto the shoulder of the road on three or four occasions.
The first deceased, David Eugene Tagliaferri, who had been heading south, had parked his Hyundai Getz on the sealed hard shoulder area of the Old Coast Road, apparently to change a flat tyre. The second deceased, Albert Frederik De Beer, had stopped his Holden Commodore sedan behind Mr Tagliaferri's vehicle, apparently to assist Mr Tagliaferri. The Commodore's hazard lights were on and could clearly be seen by approaching traffic. Mr De Beer's vehicle was 600 mm from the unbroken white line on the side of the left‑hand lane of the carriageway. Thus, although the deceased's vehicles were parked close to the edge of the carriageway, they were not on it. His Honour found that neither deceased 'was in any way negligent or careless in where they parked' (ts 49). Insofar as the deceased's vehicles posed a hazard, his Honour said that they were clearly visible for at least 300 m and he thought 'quite a bit more' (ts 42).
The appellant's vehicle was travelling in the left‑hand lane which was 3.6 m wide. The vehicle was 2.5 m wide. It was in good mechanical order, albeit with the known tendency to pull to the left that I have mentioned. The appellant was travelling at 96 kph, which was less than the speed limit of 110 kph. He was not affected by alcohol, but he may have been affected by prescription medication. At the time, due to a depressive condition, the appellant was taking prescribed medication which, to his knowledge, made him drowsy.
The unchallenged evidence was that as the appellant's vehicle approached the deceased's vehicles, it drifted from the left‑hand lane of the carriageway onto the sealed hard shoulder and ploughed, without braking, into the deceased's vehicles, killing Mr De Beer instantly. Mr Tagliaferri died in hospital a short time later.
The appellant's personal circumstances
The appellant was 51 years of age when he was sentenced. He had a record of prior traffic offending. Relevantly, in 2004, he was convicted of a number of offences arising out of an incident in which the private vehicle he was driving collided with a runner, causing serious leg injuries to the victim. The appellant was convicted of dangerous driving causing bodily harm, failing to stop after an accident and driving with a blood alcohol content in excess of 0.08%. In total, he was fined $6,250 for the offences and was disqualified from holding or obtaining a driver's licence for 3 years.
The appellant had been a heavy user of alcohol from the age of 16 years. He had reduced his alcohol consumption after the collision in 2011.
At the time of the collision, the appellant was suffering from depression. It is not suggested that this condition was in any way causative of the collision. Subsequently, as a result of the collision, he was diagnosed with post‑traumatic stress disorder. His treating psychologist, Mr Trainer, reported to his Honour that, with treatment, his symptomatology for this condition had significantly reduced. Mr Trainer also noted that the appellant had 'achieved considerable gains in overcoming a lifetime of alcohol abuse'.
His Honour was provided with character references which spoke highly of the appellant as a worker and neighbour.
His Honour accepted that the appellant was genuinely remorseful for his actions. He found that the appellant felt 'a lot of compassion for the families of those who died' (ts 48).
The sentencing remarks
The appellant's counsel in his plea in mitigation had submitted that the appellant had been distracted at the critical time and had taken his eyes off the road in order to change radio stations and that, as he did so, his vehicle drifted to the left of the carriageway and into the deceased's vehicles. It was submitted that the collision was caused by 'a momentary lapse in attention' on the part of the appellant (AB 116). His Honour said that he was 'most dubious' of this account of events (ts 43). His Honour said that even if it was an accurate explanation, it constituted 'reckless behaviour of high magnitude'.
His Honour said that 'the most likely scenario' was that the appellant's vehicle drifted to the left, off the carriageway, because of the effects of fatigue and possibly the prescription medication he was taking for his depression. His Honour found, having regard to witnesses who had observed his vehicle in the 40 km before the accident, that the appellant knew he was tending to doze and should have stopped to rest (ts 44).
His Honour said that for the appellant to drive in a state of fatigue:
is a serious breach of the duty of care to others and is extremely dangerous, the more so when the vehicle being driven is a laden semitrailer. Obviously catastrophic consequences can occur if such a vehicle is not kept on a road within its lane (ts 45).
His Honour took into account that the appellant had pleaded guilty on the fast‑track system and was genuinely remorseful (ts 46). He noted that the appellant had 'quite a bad driving record'. He also noted that the appellant had depression at the time of the collision and suffered post‑traumatic stress disorder as a result of it.
His Honour said that there was a need to deter others from driving while fatigued and that this was particularly important with respect to drivers of heavy vehicles. His Honour said he regarded the offence as 'a bad case of its kind' (ts 49). In arriving at the appropriate individual sentence, his Honour noted that the maximum penalty for the offence had recently increased from 4 years' imprisonment to 10 years' imprisonment. In arriving at the total effective sentence, his Honour said that total accumulation would be wrong because it would punish the appellant twice for the common element of dangerous driving (ts 45). However, he said that partial accumulation was appropriate to reflect the fact that two people had been killed (ts 45).
The appellant's submissions
With respect to ground 1, the appellant emphasised what were said to be comparable cases and submitted that the individual sentences were 'significantly in excess' of the sentences imposed in these cases.
With respect to ground 2, the appellant again emphasised the sentences in 'similar cases' and submitted, having regard to the circumstances of the case, the appellant's early pleas of guilty and expression of remorse, that the total effective sentence of 5 years' imprisonment infringed the first limb of the totality principle.
The respondent's submissions
The respondent submitted that, having regard to all the circumstances of the case, the learned sentencing judge was correct to characterise it as a bad case of its kind. The respondent submitted that it was important to take into account that the maximum statutory penalty for the offence of dangerous driving occasioning death increased in 2008 from 4 years' imprisonment to 10 years' imprisonment and that, consequently, sentencing decisions where the previous maximum penalty had been applied were of little assistance. The respondent submitted that the cases cited by the appellant which had been decided since the increase in the maximum penalty were distinguishable on their facts.
Sentencing principles applicable to the appeal
The general principles upon which this appeal must be decided are well known and well settled. They were conveniently described by McLure P and Owen JA in Wilson v The State of Western Australia [2010] WASCA 82 [2]; it is unnecessary to repeat what their Honours said.
Each ground alleges an implied error on the part of the primary judge. In order for the ground to be made out, the appellant must demonstrate that the outcome was unreasonable or plainly unjust.
Ground 1 - were the individual sentences manifestly excessive?
In order to determine if a sentence is manifestly excessive, it is necessary to view it from the perspective of:
(a)the maximum sentence prescribed by law for the offence;
(b)the standards of sentence customarily imposed;
(c)the place which the criminal conduct occupies in the scale of seriousness of crimes of that type; and
(d)the personal circumstances of the appellant.
The maximum penalty
The maximum penalty for the offence committed by the appellant has been recently and significantly increased. By s 38 of the Criminal Law Amendment (Homicide) Act 2008 (WA), which commenced on 1 August 2008, the maximum penalty for unaggravated dangerous driving occasioning death increased from 4 years' imprisonment to 10 years' imprisonment.
The maximum penalty for any offence is one of the yardsticks by which the sentence to be imposed is measured. It signifies Parliament's view of the gravity of the offence and must be taken into account. The fact that the maximum sentence has been increased indicates that sentences for that offence should be increased: Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 [31].
Standards of sentences imposed in other cases
Sentencing outcomes in other cases are, along with the statutory maximum penalty, another yardstick against which to measure a proposed sentence. The object of any such comparison is to ensure broad consistency. What must always be borne in mind is that the sentence to be imposed in a particular case must be tailored to the individual circumstances of that case and is not to be arrived at only by comparison with other cases. Further, comparable cases do not fix the boundaries within which a sentencer in another case must, or even ought, sentence: Munda v The State of Western Australia [2013] HCA 38; (2013) 87 ALJR 1035 [39].
There is no tariff for the offence of dangerous driving occasioning death because of the great variation that is possible in the circumstances of the offending and the offenders: The State of Western Australia v Butler [2009] WASCA 110 [7] (Wheeler JA).
Among the cases cited by the appellant in support of this ground were Wood v The Queen [2002] WASCA 95; Koltasz v The Queen [2003] WASCA 38; Kay v The Queen [2004] WASCA 222; (2004) 147 A Crim R 401; Eves v The State of Western Australia [2008] WASCA 7; (2008) 49 MVR 259; Longbottom v The State of Western Australia [2008] WASCA 203; (2008) 38 WAR 396; Taylor v The State of Western Australia [2009] WASCA 226; and The State of Western Australia v Olive [2011] WASCA 25. These cases have limited utility because they were all decided in the context of offences where the maximum penalty was 4 years' imprisonment.
Cases with respect to the 10 year maximum penalty are few in number. The appellant focused attention on a number of cases decided by single judges in the General Division of the Supreme Court on appeal from decisions by magistrates, namely, Hunt v Callaghan [2011] WASC 10; Easthope v Whitney [2011] WASC 190; Winwood v Brown [2011] WASC 123; and Pike v Becker [2012] WASC 397. PikevBecker can immediately be set aside. It is an appeal against conviction only.
Consistency in sentencing is to be achieved through the work of this court: Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520 [56] (French CJ, Gummow, Hayne, Crennan, Kiefel & Bell JJ). Accordingly, it is unnecessary to analyse the relevant single judge decisions in detail. In any event, they are readily distinguishable on their facts from the present case.
In this court, the only sentencing decisions in respect of the current maximum penalty of 10 years' imprisonment are Lutumba v The State of Western Australia [2013] WASCA 172 and Timbrell v The State of Western Australia [No 2] [2013] WASCA 269. I will deal with Timbrell first.
In Timbrell, the offender, who was 21 years of age at the time of the offending and with excellent antecedents, drove through a red light as a result of a momentary lapse of judgment or attention. He collided with a vehicle, killing the driver and badly injuring the passenger. Following his fast‑track pleas of guilty, the offender was sentenced to 12 months' immediate imprisonment for dangerous driving occasioning death and 8 months' immediate imprisonment for dangerous driving occasioning grievous bodily harm. The sentences were ordered to be served concurrently. On appeal, this court allowed the offender's appeal and ordered that the terms of imprisonment be suspended for a period of 9 months. Timbrell is readily distinguishable from the present case on the basis that the offender in that case was young, his antecedents were excellent and his moral culpability was towards the low end of the scale of seriousness.
Lutumba is more comparable to the present case. In that case, the offender, a 29‑year‑old with no prior criminal history, was driving to the Perth International Airport. At the time, he was driving contrary to the conditions imposed by his learner's permit. He deliberately, and in the face of expressions of concern from his passengers, crossed double white lines in order to overtake a truck and collided with an oncoming vehicle. As a result, one of his passengers was killed, another suffered grievous bodily harm and the remaining two suffered bodily harm. The two occupants of the oncoming vehicle sustained extensive injuries which constituted grievous bodily harm. After entering fast‑track pleas of guilty, the appellant was sentenced to 5 years' immediate imprisonment for the offence of dangerous driving occasioning death, and a total effective sentence of 6 years' imprisonment. On appeal, this court allowed the appeal and reduced the sentence for the offence of dangerous driving occasioning death to 3 years 6 months' immediate imprisonment, and the total effective sentence to 4 years 6 months' immediate imprisonment.
Self‑evidently, the offender in Lutumba committed more offences than the appellant in this case. However, in the present case there were two deaths. The offender in Lutumba made a spur of the moment decision, whereas the appellant here, a professional truck driver, was fatigued and must have known that he was not in a state to drive safely for a considerable time prior to the collision. Further, in Lutumba, the offender's personal circumstances and antecedents were more favourable than the appellant's.
Comparisons of relative culpability are always difficult and, in any event, one case does not dictate the range of a sound sentencing discretion. Nevertheless, when all things are considered, the individual sentences imposed in the present case (and for that matter the total effective sentence) are broadly consistent with the individual sentence for dangerous driving occasioning death (and the total effective sentence) in Lutumba.
I have also had regard to Devine v The State of Western Australia [2010] WASCA 94, a case in which the appellant was convicted after trial of one count of aggravated dangerous driving occasioning death and one count of aggravated dangerous driving occasioning grievous bodily harm. The maximum sentence for these offences is 20 years' imprisonment and 14 years' imprisonment respectively. In that case, the appellant, a 21‑year‑old man with a prior but not significant criminal record, deliberately drove with passengers in his vehicle, at night, along an unlit country road at a speed of about 190 ‑ 200 kph, compared with the speed limit of 110 kph. He lost control of the vehicle and smashed into a power pole killing one passenger and severely injuring the other. At first instance, the appellant was sentenced to 5 years 6 months' imprisonment for the count of aggravated dangerous driving occasioning death, and 1 year 6 months' imprisonment for the offence of dangerous driving occasioning grievous bodily harm. The individual sentences were ordered to be served cumulatively. Thus, he received a total effective sentence of 7 years' imprisonment. On appeal, this court dismissed the offender's appeal against the individual sentence for the count of aggravated dangerous driving causing death, but allowed the appeal against the total effective sentence. The majority substituted a total effective sentence of 6 years' imprisonment.
The culpability of the offender in Devine was greater than the appellant in the present case and, unlike the appellant, the offender in Devine went to trial and was convicted of the aggravated offences. However, the offender in Devine had the advantage of youth.
Contrary to the appellant's submissions, my analysis of the cases does not reveal that the individual sentences imposed in the present case were manifestly excessive. They were longer than those imposed prior to the increase in the maximum penalty, but that is to be expected, particularly when the former maximum penalty was so low. Insofar as the new maximum penalty of 10 years' imprisonment is concerned, sentencing patterns are yet to emerge. None of the cases cited, most particularly Lutumba and Devine, point to the individual sentences that were imposed on the appellant being manifestly excessive.
The seriousness of the offence
It was not disputed in this court that the culpability of the appellant must be judged from the perspective that he drove in a state of fatigue and had done so for some time prior to the collision with the deceased's vehicles. As a consequence of this state of fatigue, the appellant's 40 tonne, laden semi‑trailer ploughed into the deceased's vehicles, which were clearly visible for at least 300 m, causing the deaths of two people.
In Jiminez v The Queen (1992) 173 CLR 572, a case where the offender fell asleep while driving, the High Court (Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ) observed that the dangerous manner of driving in that case was to be judged on the basis of whether the driver was so tired that, in the circumstances, his driving was a danger to the public (580).
His Honour's finding that the appellant knew that he was tending to doze and should have stopped to rest in the 40 kms before the collision, coupled with the fact that the victims' vehicles were clearly visible, establishes that the appellant posed a serious danger to the public.
The appellant was a professional truck driver. He was driving a large vehicle in daylight on a public road shared by other road users. Vehicles such as the one driven by the appellant are especially capable of producing enormous damage to human life if driven irresponsibly: R v Wilkins (1988) 38 A Crim R 445, 449 (Lee CJ), cited with approval by Miller J in Kay [46].
All drivers have a duty to drive in a fully alert state. The appellant's duty was heightened in this case by his knowledge that the vehicle had a tendency to pull to the left and that, due to its width, vigilance was required to ensure that it remained in its lane. Although the appellant had taken his regulated breaks, that does not substantially reduce his culpability given that he knew that he was tending to doze and should have stopped to rest prior to the collision. There is no reason why he could not have done so. This is a case where the appellant chose to keep driving when he knew he was not in a condition to do so. The appellant should have pulled over and rested. By continuing to drive, he endangered other road users.
As Wilson J, with whom Muir and Chesterman JJA agreed, observed in R v Ruka [2009] QCA 113 [17], fatigue is widely recognised as a major cause of traffic accidents. It is the responsibility of all drivers, but particularly of a professional truck driver in control of a heavy vehicle, not to endanger the lives and safety of others by driving in a state of fatigue. General deterrence is required in cases such as this and must be given some emphasis.
Matters personal to the appellant
I will not repeat what I have already said about the appellant's antecedents. It was favourable to the appellant that he pleaded guilty on the fast‑track system and was genuinely remorseful. Moreover, he has, himself, suffered post‑traumatic stress disorder as a result of the collision. That said, the appellant is a mature man. He is not a first offender and has a significant and relevant prior conviction. While this does not aggravate his offending, it cannot be said that driving dangerously was out of character.
Conclusion on the allegation of manifest excess
Having considered all of the factors relevant to the determination of whether the individual sentences were manifestly excessive, I have arrived at the conclusion that they were not. I agree with the learned sentencing judge's characterisation that this was a bad piece of driving. This was not mere inattention or a momentary lapse of judgment, but rather a determination by the appellant to keep driving even though he knew he was fatigued and posed a risk to other road users. The appellant's criminality was high and there is, in this case, a particular need to provide general deterrence. The maximum penalty for the offence has substantially increased. The standards of sentence that applied before the increase no longer apply.
I have not been persuaded that the individual sentences were unreasonable or plainly unjust. As implied error has not been established, this court has no power to interfere with the sentences imposed by the primary judge. I would dismiss ground 1.
Ground 2 - did the total effective sentence breach the first limb of the totality principle?
The totality principle is well known and well understood. It has two limbs. This case is only concerned with an alleged infringement of the first limb. The first limb requires that the total effective sentence bears a proper relationship to the overall criminality involved in all of the offences viewed in their entirety, having regard to all of the circumstances of the case, including those referable to the offender personally: Roffey v The State of Western Australia [2007] WASCA 246 [24], [25] (McLure JA).
The proper approach when dealing with multiple offences of dangerous driving occasioning death which have resulted from the one act of dangerous driving was discussed by this court in Eves and Longbottom. That approach was explained by Steytler P in Longbottom as follows:
The issue of sentencing for common elements of multiple offences was explored in Eves v The State of Western Australia [2008] WASCA 7; (2008) 49 MVR 259. I remain of the opinion, there expressed, that there are two applicable principles in a case such as the present. The first is that there is no requirement that wholly concurrent terms be imposed for multiple offences constituting one transaction or a continuing episode: R v Faithfull [2004] WASCA 39; (2004) 142 A Crim R 554 [28] and the cases there referred to. The second is the more pertinent (for present purposes) principle identified in Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 [40] that, to the extent to which an offender stands convicted of offences containing common elements, it would be wrong to punish that offender twice for the commission of elements that are common. That principle has since been affirmed in Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616 [27], [34] and [38]. This second principle seems to me to have the inevitable consequence that it is unsound in principle to impose a sentence that fully addresses each element of the offence on each count and then wholly aggregate the sentences so imposed.
The preferable approach, when sentencing for multiple offences, is to consider, first, what sentence is appropriate for each offence in the circumstances of the case and then to ensure, by adjusting the total sentence to the extent necessary (if at all), that the total sentence fairly and justly reflects the total criminality of the appellant's conduct and is not crushing: Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295, 307 - 308; Martino v The State of Western Australia [2006] WASCA 78 [16]. When adopting that approach in a case in which there are elements that are common to each offence, the commonality of these elements seems to me to be best recognised, ordinarily, by orders for partial concurrency of the sentences imposed. That way, the individual sentences will be adequate to reflect the gravity of each offence: s 6(1) of the Sentencing Act 1995 (WA) [5] ‑ [6].
It is apparent from his Honour's sentencing reasons that he adopted this approach. Having regard to the common element of dangerous driving, his Honour ordered that the sentence on count 2 be served partly concurrently with the sentence on count 1.
Whether or not the total effective sentence here infringed the first limb of the totality principle requires a consideration of the seriousness of the offences, the mitigating factors and the comparative cases. I have already dealt with these factors in the context of ground 1. There is no need to repeat what I have already said about them.
In my opinion, the total effective sentence of 5 years' imprisonment was a proper reflection of the appellant's overall criminality in all of the circumstances, including those referable to the appellant personally. Some accumulation was required having regard to the fact that the appellant's driving caused two deaths. To have imposed totally concurrent sentences would not have properly reflected this fact. Ground 2 has not been made out.
Conclusion and orders
As neither of the grounds of appeal has merit, the application for an extension of time must be refused and the appeal dismissed.
I would make these orders:
1.The application for an extension of time to appeal is refused.
2.The appeal is dismissed.
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