Lee-Kong v Brunnen - [2022] WASC 150

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   LEE-KONG -v- BRUNNEN [2022] WASC 150
CORAM:   SOLOMON J
HEARD:   24 JANUARY 2022
DELIVERED          :   5 MAY 2022
PUBLISHED           :   5 MAY 2022
FILE NO/S:   SJA 1065 of 2021
BETWEEN:   JOHN GORDON LEE-KONG
Appellant
AND
LEE WILLIAM BRUNNEN
Respondent

ON APPEAL FROM:
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE T HALL
File Number            :   PE 33831/2020

Catchwords:

Criminal law - Appeal against sentence - Leave to appeal - Question of remorse - Demonstration of remorse - Limitations of an appellate court in reviewing the determination of a sentence - Where a police officer believes they are pursuing their duties of law enforcement - Dangerous driving in circumstances of aggravation occasioning grievous bodily harm - Whether the imposition of a fine was manifestly inadequate - Where no decisions are directly comparable to the case at hand - Whether the quantum of a fine is adequate in terms of the applicable sentencing principles - Where a sentence of imprisonment is not the only appropriate sentence

Legislation:

Road Traffic Act 1974 (WA), s 59, s 59(1), s 59(1)(b), s 60, s 61, s 61A
Road Traffic Amendment (Driving Offences) Act 2018 (WA)
Road Transport (Safety and Traffic Management) Act 1999 (ACT), s 6(1)
Sentencing Act 1995 (WA), s 6, s 6(4), s 9(6), s 39(2), s 39(3), s 53, s 53(1), s 76, s 88

Result:

Appeal allowed

Category: B

Representation:

Counsel:

Appellant	:	N T L John
Respondent	:	L B Black

Solicitors:

Appellant	:	State Solicitor's Office
Respondent	:	Tindall Gask Bentley Lawyers

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

Abeyakoon v Brown [2011] WASCA 63
Attree v Randell (Unreported, Supreme Court of Western Australia, (Murray J), Library No 930397, 19 July 1993)
Barron v State of Western Australia [2010] WASCA 27
Basham v City of Joondalup [No 2] [2016] WASC 120
Day v The Queen [2001] WASCA 284
Dunjey v Cross [2002] WASCA 14
Fogg v State of Western Australia [2011] WASCA 11
James v The Queen [1985] WASC 42
Johnson v Vander Zanden [2021] WASCA 27
Kershaw v State of Western Australia [2014] WASCA 111
Moore v Russell [2020] WASC 413
Munda v Western Australia (2013) 249 CLR 600
R v Chancellor [2019] ACTSC 191
R v Starr [2002] VSCA 180
Ryan v The Queen (2001) 206 CLR 267
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
The Queen v Shannon (1979) 21 SASR 442
The State of Western Australia v Egeland [2018] WASCA 228
The State of Western Australia v Molloy [2020] WASCA 123
The State of Western Australia v Murray [2020] WASCA 190
Thomas v Schwager (Unreported, Supreme Court of Western Australia, (Parker J), Library No 970719, 18 December 1997)
Timbrell v Western Australia [No 2] [2013] WASCA 269
Veen v The Queen (No 2) (1988) 164 CLR 465

SOLOMON J:

Introduction

This is the State's appeal against a sentence imposed on the respondent who on 4 August 2021, was convicted in the Magistrates Court under s 59(1)(b) of the Road Traffic Act 1974 (WA) (RTA). On 18 August 2021, the respondent was sentenced in the Magistrates Court to a fine of $5,000 and was disqualified from holding or obtaining a driver's license for two years.
The appeal raises two important issues.
First, it raises matters concerning the issue of remorse in sentencing a person following a conviction for an offence. What is remorse and how is it to be discerned? More particularly, what are the limitations of an appellate court in reviewing a 'finding' of remorse by the magistrate who heard and determined the matter leading to a conviction and who, following a sentencing hearing, determined the sentence?
Secondly, the appeal concerns the conduct of a serving police officer who genuinely believed he was pursuing his duties of law enforcement. His grossly misguided zeal in doing so led him to drive in a manner that was unlawful, causing grievous bodily harm to an innocent and vulnerable person. The respondent was convicted of driving in a manner that was dangerous in circumstances of aggravation (30 km/h or more above the speed limit) which occasioned grievous bodily harm. The important question is whether, in the circumstances, that crime necessitates a term of imprisonment.

Background

The findings of the learned magistrate are not challenged and are summarised below.
The respondent joined the police force at the age of 16 as a cadet after completing Year 11 at high school. Other than the incident the subject of this appeal, he has enjoyed an unblemished record as a police officer and as a driver.
On 1 April 2020, the respondent was a 22‑year‑old police officer. That day he was on duty, driving a marked Holden Commodore police vehicle. Constable Ella Cutler accompanied the respondent in the passenger seat. At around 4.00 pm, the two police officers were conducting patrols of the North Perth area, travelling south along Charles Street towards the Perth CBD.[1]
[1] Transcript, Western Australia Police v Lee William Brunnen, Magistrates Court of Western Australia at Perth, 4 August 2021, 3.
The traffic on Charles Street at the time was described by the learned magistrate as moderate or medium, the road was dry, the visibility was good, and the weather was fine, albeit cloudy.[2] At the location of the incident, Charles Street is a dual carriageway, with various median strips along the road and a maximum speed limit of 60 km/h.[3]
[2] ts 4 August 2021, 30, 5.
[3] ts 4 August 2021, 5.
Various pedestrians and other road users were also using the road, with passengers getting on and off Transperth buses along Charles Street. Mr John Leonard, an independent witness to the incident, had been riding his bike with his son, and was at a pedestrian crossing not far from the intersection of Charles and Albert Streets.[4]
[4] ts 4 August 2021, 7.
At this time, the victim, Ms Gauntlett, had just taken her dog for a walk at the park and was driving home in her green Mazda hatchback. She drove down Albert Street and stopped at a stop sign at the intersection with Charles Street.[5]
[5] ts 4 August 2021, 3.
Ms Gauntlett waited to cross Charles Street, a crossing she had undertaken 'many times before'.[6] She was not in a hurry and she waited for traffic to pass before crossing the intersection, looking to the right for oncoming traffic.[7]
[6] ts 4 August 2021, 6.
[7] ts 4 August 2021, 26.
Meanwhile, as the respondent was driving, he saw a tray back ute travelling north on Charles Street.[8] It caught his attention as it had a partially attached numberplate.[9] The ute may have been going slightly faster than the speed limit, and either one or both of the occupants had neck tattoos.[10]
[8] ts 4 August 2021, 7.
[9] ts 4 August 2021, 17.
[10] ts 4 August 2021, 18.
That combination of factors led the respondent to be suspicious that the ute may be stolen and that the occupants might be 'criminals'. In particular, the respondent described the indicators he observed on this occasion as having led him to suspect 'that those persons on board in that vehicle are involved in serious volume crime offences'.[11]
[11] ts 4 August 2021, 18.
The respondent described the factors arousing his suspicions about the drivers of the vehicle as 'criminal indicators'. In that context, the respondent gave evidence about his approach to policing in the following terms:
I'm always out and about and I'm always trying to do the right thing by the community and proactively stop crime in the community, so I'm constantly, yes, got my eyes peeled, I guess, and I'm getting the results. I get results from traffic stops, from person stops, from person in vehicles – on pushbikes, and that's what I pride myself on and my supervisors recognise it.[12]
[12] Transcript Western Australia Police v Lee William Brunnen, Magistrates Court of Western Australia at Perth, 25 May 2021, 147.
In light of his suspicions, the respondent decided to pursue the ute and conduct further intelligence checks.[13] The respondent proceeded to press the primary button to activate the police vehicle's emergency lights before turning around on Charles Street to head north at speed in the direction of the suspicious ute.[14]
[13] ts 4 August 2021, 18.
[14] ts 4 August 2021, 18.
The respondent believed he had activated the emergency lights. Whether or not the emergency lights ever came on is unclear. It was established however that the lights were not on just before or at the time of the incident.[15] At no time before the incident did the respondent activate the police siren. As the respondent accelerated northward along Charles Street towards the intersection of Albert Street, he reached a speed of 112 km/h, with no siren and no emergency lights activated. At the relevant time, there were pedestrians and other road users using the road.[16]
[15] ts 4 August 2021, 26.
[16] ts 4 August 2021, 26.
Ms Gauntlett proceeded to pull out onto Charles Street, in front of where the respondent was travelling. The respondent, upon seeing Ms Gauntlett's vehicle, immediately braked and turned his vehicle to the right in an attempt to minimise the impact of the two vehicles.[17] The front of the respondent's vehicle collided with the right driver's door of Ms Gauntlett's vehicle.[18]
[17] ts 4 August 2021, 27.
[18] ts 4 August 2021, 27.
As a result of the incident, Ms Gauntlett suffered grievous bodily harm with significant injuries including a fractured C2 vertebrae, fractured pelvis, broken ribs, pneumothorax, a vertebral aneurysm and significant muscle damage to her lower right leg.[19] The impact on Ms Gauntlett's health, independence and lifestyle has been profound, although her health had improved somewhat by the time of the learned magistrate's sentencing on 18 August 2021.
[19] Transcript, Western Australia Police v Lee William Brunnen, Magistrates Court of Western Australia at Perth, 18 August 2021, 4.
The respondent pleaded not guilty to the offence. The matter was heard in the Magistrates Court at Perth before his Honour Magistrate Hall over 25, 26 and 27 May and 14 June 2021. The prosecution called 11 witnesses, including Ms Gauntlett. The respondent gave evidence in his own defence.
The respondent defended the charge on the basis of s 61A of the RTA, which provides:
It is a defence to a prosecution for an offence against section 59(1)(b), 59A(1)(b), 60(1A) or 61(1) if the accused satisfies the court that, at the time of the alleged commission of the offence -
(a)the accused was on official duty as a police officer; and
(b)the driving was substantially in accordance with the Commissioner's policies and guidelines relating to driving, applicable at the time of the driving, and any direction given under such a policy or guideline; and
(c)having regard to all of the circumstances of the case, it was reasonable, and in the public interest, for the accused to have driven the motor vehicle in the manner that he or she did.
The respondent contended that his driving was substantially in accordance with the relevant policy and guidelines, and that having regard to all the circumstances, his conduct was reasonable and in the public interest.
At the conclusion of submissions on behalf of the respondent on 14 June 2021, the learned magistrate reserved his decision until 4 August 2021.
At the hearing of 4 August 2021, the learned magistrate found the offence proven beyond reasonable doubt and that the respondent had failed to make out his defence on the balance of probabilities. The learned magistrate accordingly convicted the respondent, observing:
Taking all those circumstances into account, looking at it objectively and based on the facts I have found proven, I am satisfied beyond a reasonable doubt that Constable Brunnen's driving at such a fast acceleration and reaching a speed of up to 112 kilometres per hour, in that location in a 60 kilometre zone at the time of day with that level of traffic and pedestrians, was inherently dangerous to Ms Gauntlett, to Constable Cutler, to Mr Leonard and his son, and to the public generally.[20]
[20] ts 4 August 2021, 30.
In convicting the respondent, the observations and findings of the learned magistrate included the following:
(a)the respondent was genuinely suspicious of the occupants of the ute and genuinely believed that they might be involved in 'volume crime and serious offending';[21]
(b)the respondent's suspicion was sufficient to warrant further investigation, but it was not a reasonable basis to suspect the occupants of the ute of being criminals or serious volume crime offenders;[22]
(c)the respondent's suspicion that the circumstances warranted a form of emergency driving, was misguided;[23]
(d)in the circumstances, the respondent's conduct was 'well‑intentioned' but did not meet the requirements of the defence in s 61A;[24]
(e)although the respondent did undertake a risk assessment, he failed to undertake proper risk assessments in the circumstances,[25] 'the respondent's risk assessment radar was out';[26]
(f)in proper compliance with the Commissioner's policy or guidelines, the respondent should have activated both the emergency lights and the siren, and he should have checked that the lights remained activated;[27] and
(g)in any event it was not reasonable or in the public interest that the respondent drove in the manner that he did.[28]
[21] ts 4 August 2021, 25.
[22] ts 4 August 2021, 25.
[23] ts 4 August 2021, 26.
[24] ts 4 August 2021, 34.
[25] ts 4 August 2021, 36.
[26] ts 4 August 2021, 38.
[27] ts 4 August 2021, 37.
[28] ts 4 August 2021, 39.
Following the learned magistrate's decision to convict the respondent, he reserved the sentencing to 18 August 2021. At that hearing, the prosecution and the defence made submissions on sentencing, and a victim impact statement was read to the court by Ms Gauntlett's daughter.
The learned magistrate then delivered his sentencing remarks and sentenced the respondent. The learned magistrate observed that there are no comparable cases in relation to dangerous driving occasioning grievous bodily harm by a police officer whilst on duty.[29] Counsel for both the prosecution and the defence made submissions consistent with that observation.
[29] ts 18 August 2021, 18.
The learned magistrate also observed that there were no aggravating factors other than the fact of speeding more than 30 km/h above the speed limit,[30] but that there were 'substantial mitigating factors'.[31] The learned magistrate then referred to the various mitigating factors, which may be summarised as follows:
[30] ts 18 August 2021, 19.
[31] ts 18 August 2021, 19.
(a)the respondent was a qualified priority 1 and 2 emergency driver;[32]
[32] ts 18 August 2021, 18.
(b)the respondent was an on-duty police officer, and notwithstanding the circumstances of the offence, he was acting 'in good faith with good intention and he was still endeavouring to drive in accordance with his duty'. This was not a case where a person 'intentionally drove in a dangerous manner or where it is alleged that he drove recklessly';[33]
[33] ts 18 August 2021, 19.
(c)the incident happened very quickly. The respondent made a risk assessment, the assessment was mistaken and a misjudgement, but it was not based on 'recklessness or deliberate intention'; the respondent was sincere but made a 'terrible judgement call';[34]
(d)the respondent was remorseful;[35]
(e)the respondent appropriately and expertly veered so as to lessen the impact of the collision;[36]
(f)the respondent did not deny the relevant facts, was cooperative at the scene and appropriate concessions were made at trial notwithstanding the respondent having exercised his right to defend the charge;[37]
(g)it was 'a significant finding' that the respondent was an honest and truthful witness;[38]
(h)although the emergency lights were not on, the respondent believed they were;[39]
(i)at the time of sentencing, [the respondent] was young, 24 years old, a person of good character with no prior record, a hardworking, professional diligent police officer, a value to the community as a police officer and a community-minded person who contributed his time to community activities;[40]
(j)since the incident the respondent had been stood down or demoted in his work;[41]
(k)personal deterrence was a relevant factor to ensure that the respondent undertakes 'proper risk assessments' in the future; 'but I do think that that will be the case' and 'the prospects of rehabilitation are good';[42]
(l)general deterrence is less a factor in the circumstances of a police officer acting in the course of duty, 'but there still does need to be general deterrence to other police officers to properly assess risk in such situations';[43]
[34] ts 18 August 2021, 21.
[35] ts 18 August 2021, 20.
[36] ts 18 August 2021, 20.
[37] ts 18 August 2021, 20.
[38] ts 18 August 2021, 20.
[39] ts 18 August 2021, 22.
[40] ts 18 August 2021, 22.
[41] ts 18 August 2021, 22.
[42] ts 18 August 2021, 23 - 24.
[43] ts 18 August 2021, 23.
Having taken account of the relevant considerations, the learned magistrate concluded that imprisonment was not the only option available and was not the only appropriate penalty.[44] The learned magistrate concluded that:
(a)the 'only appropriate penalty is a fine' and it needed to be an immediate and significant fine that reflected the seriousness of the offence;[45]
(b)in imposing the fine, the learned magistrate took into account that the respondent was being ordered to pay the prosecution's costs in the sum of $17,924.89;[46] and
(c)the appropriate fine in all the circumstances was $5,000.[47]
[44] ts 18 August 2021, 24.
[45] ts 18 August 2021, 24.
[46] ts 18 August 2021, 24.
[47] ts 18 August 2021, 24.

Ground 1 - Remorse

The appellant's first ground of appeal is that the learned magistrate erred in fact in finding that the respondent had demonstrated remorse. That is, the learned magistrate's conclusion that the respondent was remorseful was an error because there was no basis upon which the learned magistrate could have come to that conclusion.
In his sentencing remarks of 18 August 2021, the learned magistrate made two express references to the respondent's remorse.
First, the learned magistrate said:
Although [the respondent] doesn't get a full discount for an early plea of guilty, having gone to trial, I still find that he is remorseful for what happened and in my view you can see the remorse very clearly on his face in the body-worn camera footage of Constable Cutler after the accident when she asks him how he's going, and when he asks her if his emergency lights were on and how fast he was going. You can see on his face, in my view, he looks remorseful.[48]
[48] ts 18 August 2021, 20.
Then, a short time later, in the course of commenting on the respondent's general character, the learned magistrate said:
As I've said, I accept that [the respondent] is remorseful.[49]
[49] ts 18 August 2021, 22.
On the basis of those comments the appellant contended in its written submissions that:
(a)the learned magistrate's finding of the respondent's remorse was expressly based on how the respondent appeared in the body‑worn camera footage after the accident;
(b)at that stage the respondent was not even aware of the extent of Ms Gauntlett's injuries, nor had he had time to reflect on his decision to drive the way he did;
(c)at no stage of the trial or sentencing proceedings was it clearly expressed by or on behalf of the respondent that he felt remorse, that he regretted his conduct or decision-making, or that he felt sorry for the very serious consequences for Ms Gauntlett. The only recorded instances of the use of the word 'remorse' in the entire proceedings are those noted above, which were uttered by the magistrate;[50]
(d)the respondent never conceded that his driving was objectively dangerous;
(e)the respondent defended the charge on the basis that his manner of driving was justified, maintaining in his evidence that he thought his driving was not dangerous;
(f)nothing said by the respondent reflected any 'strong personal emotion of remorse or regret by the respondent about his own culpability';[51] and
(g)it was not open to the learned magistrate to make a finding that the respondent was remorseful, and it was certainly not open to the magistrate to decide the respondent was remorseful based on his own opinion as to how the respondent appeared in the immediate aftermath of the collision.
[50] Appellant's Outline of Submissions (26 November 2021) [34].
[51] Appellant's Outline of Submissions (26 November 2021) [37].

The written submissions were supplemented orally. The appellant contended that the authorities establish that remorse requires contrition and acceptance of responsibility, and there was no evidence of either. The appellant accepted that, in principle, remorse can be demonstrated by the offender's conduct at the scene of the offence but that in these circumstances, the learned magistrate could not be satisfied on the balance of probabilities that remorse was in fact demonstrated at the scene of the incident.[52] The appellant appeared to suggest that what the respondent demonstrated at the scene of the accident was nothing more than a normal human reaction of a few 'fleeting moments of regret, confusion, bewilderment, in the seconds after a serious traffic accident'.[53] In short, the appellant contended that the respondent's remorse was 'simply not an inference that [was open to the learned magistrate] 'from a few seconds of video'.[54]
[52] Transcript, John Gordon Lee-Kong v Lee William Brunnen, Supreme Court of Western Australia, 24 January 2022, 5.
[53] ts 24 January 2022, 6.
[54] ts 24 January 2022, 9.
The appellant also emphasised that the respondent's defence of the charge was in fact inconsistent with remorse. That is because, in essence, the basis of the defence was that the respondent's conduct was justified, whereas remorse requires an acceptance of wrongdoing. It was one thing to put the prosecution to proof – every defendant has that right. But to run a positive defence premised on the justification of the conduct is fundamentally inconsistent with remorse. Moreover, the respondent's decision to give evidence to advance that position reflected an even more acute absence of remorse. Then, even after conviction, the appellant complains the respondent had a renewed opportunity to express his remorse but failed to do so. In that context, counsel for the appellant observed:
'I'm sorry' would have been a good way of expressing it, but it was never put. 'I'm sorry' is a powerful way of expressing remorse, and this offender has never said those words.[55]
[55] ts 24 January 2022, 9.
The appellant summarised its position as follows:
The fundamental proposition for the appellant is that not only was remorse not demonstrated, its converse was demonstrated but a denial of responsibility was demonstrated. That was never attempted to be revisited.[56]
[56] ts 24 January 2022, 12.

Remorse and Defending a Charge

Before dealing more broadly with the issue of remorse, I shall deal with one point of particular emphasis in the appellant's position; the proposition that defending a charge tends to undermine, and in some cases precludes, a finding of remorse.
The appellant's counsel accepted that a defendant has a 'right' to defend a charge and the exercise of that right does not necessarily, of itself, preclude a finding of remorse. However, the appellant's contention was in effect that often, and certainly in this case, mounting a defence to a charge was inconsistent with remorse.
As an example of the lack of remorse manifest in an offender's defence of the charge, counsel for the appellant directed attention to the Court of Appeal's decision in The State of Western Australia v Egeland.[57] In that matter, the offender had been charged with possession of a prohibited drug with intent to sell or supply to another. The critical issue was the offender's intention. He admitted possession of the drug, but he gave evidence that he did not intend to sell or supply. That evidence was rejected. It necessarily follows that the jury found the offender's evidence in that regard to be untruthful. The offender was convicted and sentenced. As in this appeal, the State in Egeland appealed on two bases; that the judge erred in finding that offender was remorseful (or in that case, 'deeply remorseful'), and that the sentence was manifestly inadequate.
[57] The State of Western Australia v Egeland [2018] WASCA 228 (Egeland).
All three judges of appeal in Egeland agreed that the trial judge had erred in finding that the offender had been deeply remorseful. The President and the majority observed that it was not possible to accept there had been genuine remorse when the offender continued to maintain his innocence.[58] The offender had untruthfully continued to deny his intention to sell or supply. In those circumstances, it could not be said that he realised that what he did was morally wrong.
[58] Egeland [40], [128].
This is not a case like Egeland where the offender advanced a defence that was untruthful, and I therefore consider the analogy with Egeland to be inapt.
In that regard, I respectfully adopt the observations of King CJ in The Queen v Shannon:
It is, of course, beyond argument that contrition is a factor properly to be considered in determining what measure of clemency should be extended to an accused person. In one sense it forms an aspect of the reformation component in the sentence. But that is not to say that repentance cannot be present when, or because, the accused has chosen to contest the charge made against him; although remorse will, doubtless be more readily established in cases where a play of guilty has been entered.[59]
[59] The Queen v Shannon (1979) 21 SASR 442, 445 ‑ 446.
Here, and in contrast to Egeland, the learned magistrate expressly found that the respondent had been truthful and honest (and remarked that this was a 'significant finding'), albeit badly mistaken. The respondent gave truthful evidence regarding his genuine belief that what he did was justified in the circumstances. The learned magistrate found that the respondent was seriously wrong in his assessment.
I do not consider that there is anything in that conduct which stands as an obstacle to the manifestation of remorse. The administration of justice in my view ought to facilitate the ability of a person in the respondent's position to advance their sincerely and honestly held view about the quality of their conduct without fear that by doing so, they will invariably bear the stain of the unrepentant. It may also be observed that the respondent has never challenged the learned magistrate's conclusion as to his grave error.
I do not accept the submission of the appellant that the respondent's defence of the charges precludes, or at least weighs heavily against, a finding of remorse.

Remorse – General Principles

In Egeland, Buss P summarised the relevant principles relating to remorse as follows:
Numerous propositions in relation to remorse as a mitigating factor are well established, namely that:
(a) the offender bears the onus of establishing remorse on the balance of probabilities;
(b) remorse is not to be equated with sorrow for being caught or regret by the offender that he or she will be imprisoned or subject to some other punishment;
(c) an assertion of remorse by or on behalf of the offender need not be accepted by the sentencing judge if the existence of remorse is put in issue by the prosecutor or if the sentencing judge indicates that he or she may not be prepared to accept that the offender is remorseful;
(d) if remorse is to be mitigating, it requires a realisation by the offender that what he or she did was morally wrong and a sign of some sorrow for the impact or consequences or the potential impact or consequences of the offence;
(e) in determining whether the offender is remorseful, the sentencing judge is entitled to have regard to the offender's conduct as a whole;
(f) a plea of guilty will not, of itself, establish remorse although, together with other relevant evidence, the plea may be a relevant factor in enabling an inference of remorse to be drawn; and
(g) if the offender is genuinely remorseful, the remorse will usually be an important consideration in sentencing.[60]
[60] The State of Western Australia v Egeland [39].
Notwithstanding the clarity of those propositions, the assessment of remorse by a court can be a difficult exercise. In Day v The Queen, Kennedy J (with whom Steytler J agreed) accepted the proposition that remorse 'is an elusive concept'.[61]
[61] Day v The Queen [2001] WASCA 284 [21].
One might begin by examining the question of why remorse is significant in the sentencing process. In the same passage, Kennedy J accepted that remorse forms part of the reformative component of a sentence. That is consistent with the explanation of the learned authors in Sentencing in Australia:
The main rationale for ascribing weight to remorse in the sentencing calculus is because of the assumption that repentant offenders accept that their behaviour was wrong and are presumably less likely to reoffend. Accordingly, there is a reduced need for specific deterrence and rehabilitation and the absence of these on the punishment side of the scales necessarily leads to a reduced penalty.[62]
[62] M Bagaric, R Edney and T Alexander, Sentencing in Australia (Thomas Reuters, 9^th ed, 2022) 378.
In my view there is a further point in the assessment of remorse by a court. Judges refer to the expression or demonstration of remorse. In truth, having regard to the function of remorse in the criminal law, it is actual remorse within the mind and heart of the offender that really matters, not its expression. We speak of the expression or demonstration of remorse because the judge can only evaluate that which is perceived by the judge's eyes, ears and cognition. True remorse can only be cultivated within the heart and mind, but remorse can only be perceived by others through words and conduct. Thus, a tension is created because the judge must assess and evaluate a state of mind that is not exposed to human perception and can indeed be masked by false or disingenuous expression. Of course, there is nothing novel in that tension. Judges are often called upon to assess a subjective state of mind that may be concealed by falsehood. But ordinarily, that state of mind relates to a temporal decision or disposition such as whether the offender intended consciously to do something or is generally disposed to do so. Remorse has a different quality because it relates to the moral conscience of the offender. Such a state of mind is buried more deeply within human consciousness than deliberative decisions. It is an inescapable limitation of the criminal justice system that it is often not possible to know with certainty whether an offender is truly remorseful. The judge is left to do the best she or he can by an assessment of the expression or demonstration of remorse.
Given the incurable limitations of human perception that I have referred to, the standard of expressing or demonstrating remorse is not one of an uncompromising level of truth and purity. In the criminal law, remorse is to be assessed on the balance of probabilities.
How then, is remorse expressed or demonstrated? Remorse is capable of being expressed in many different ways. Much will depend on the circumstances of each particular case, and it would be very difficult to state an exhaustive list of matters that would demonstrate remorse; see R v Starr.[63]
[63] R v Starr [2002] VSCA 180 [26].
In my view, although (and perhaps because) remorse is elusive and its potential forms of expression cannot be exhaustively listed, it is nevertheless an attribute that, in a particular case, can be perceived even if its manifestation does not lend itself to definitive description. The 14th century German theologian Thomas à Kempis (whose writings were strongly recommended by Sir Thomas More, Lord Chancellor of England) summarised the point pithily: 'I would far rather feel remorse than know how to define it'.[64]
[64] In the original Latin: Opto magis sentire compunctionem quam scire definitionem. Kempis, T The Imitation of Christ 1441 Book 1 Chp 1 Section 3.
Given the elusive and complex nature of remorse, the countless ways in which it may manifest, and its penitential or rehabilitative object, it is a matter where the evaluative judgment of the magistrate commands considerable respect. In this matter, and perhaps in many others, remorse was a matter to be evaluated by the learned magistrate who singularly had the opportunity to see and hear from the offender and observe him in the witness box and hear the evidence of all the surrounding circumstances. The magistrate was uniquely placed to undertake the difficult evaluative process of ascertaining the offender's level of remorse. In my view, it may diminish not only the respect that ought to be accorded to the magistrate's unique position, but indeed the depth and complexity of the concept of remorse itself, if an appellate judge were to review the transcript in a clinical fashion and reject the evaluation of the magistrate.
As has been observed many times, it is not appropriate to scrutinise the remarks of the magistrate for error. Magistrates are afforded a necessary latitude in the way they express their remarks in light of the manner in which that court operates.
The learned magistrate's remarks and conclusions made at both the hearing of 4 August 2021 when he convicted the respondent, and on 18 August 2021 when he sentenced the respondent, encompassed fairly wide-ranging conclusions about the respondent's conduct. They included the express reference to the respondent's immediate reaction as shown on the body‑cam footage to which the appellant directed singular attention.[65] The learned magistrate also referred to the respondent's truthfulness throughout his evidence and his good faith notwithstanding the commission of the offence. The learned magistrate was in the unique position of seeing and hearing the respondent explain himself in the witness box. The learned magistrate was able to make his own assessment of the respondent's attitude to the offence and whether he perceived there to be genuine remorse in the sense of whether the respondent was a repentant offender.
[65] ts 18 August 2021, 20.
In my respectful view, error is not demonstrated in the magistrate's conclusion by asserting that, in isolation, a different view can be taken of the respondent's reaction in the video footage and then scrutinising the transcript to demonstrate the insufficient formulation of words amounting to contrition. Remorse is an elusive and nuanced feature of the human psyche. Its existence or absence is more likely to be perceived and better understood by the trial magistrate than by the clinical appellate analysis urged by the appellant.
I should comment on the particular submission advanced by the appellant that I refer to at [35] above; the respondent's failure to apologise.
The formal articulation of remorse, contrition or apology can often be a necessary prelude to moral rehabilitation. In some cultures and contexts, it is a necessary precondition to the penitential process.
However in my view, it diminishes the concept of remorse to reject the magistrate's evaluation because the offender did not articulate particular words such as 'I am sorry'. Words matter, and they can matter deeply. But words can also be a cheap and expedient currency. That currency would be further discounted if an appellate judge suggested that the formulaic utterance of those words could be determinative of whether there was remorse. Such a conclusion would serve to foster a regrettable culture which encouraged the articulation of a formulaic apology as a panacea for society's ills.
Given the complex nature of remorse and the matters required to demonstrate its existence to the requisite standard, I accept that Ground 1 is by no means unarguable or without a rational foundation.[66] In the circumstances I would be prepared to grant leave in respect of Ground 1, but, for the reasons I have explained, I would not be prepared to find error and thereby disturb the learned magistrate's conclusion. Accordingly, I would grant leave, but dismiss Ground 1.
[66] Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56].

Ground 2 - Leniency of Sentence

Ground 2 of the appeal is that the fine of $5,000 imposed by the learned magistrate was manifestly inadequate. The ground has two alternative bases:
(a)it was not reasonably open for the magistrate to conclude that imprisonment was not the only appropriate penalty. A fine was manifestly inadequate as to the type of disposition;
(b)alternatively, even if it was reasonably open for the magistrate to so conclude, a fine in the amount of $5,000 was not within the range of penalties reasonably open to impose. The fine was manifestly inadequate as to quantum.
In addition to the parties' written submissions, there was considerable discussion in oral submissions regarding the applicable principles and proper approach to be adopted to sentencing in this matter.
In my view by reference to appellate authority and the Sentencing Act1995 (WA) itself, the relevant principles applicable to this matter are set out below.

Applicable General Sentencing Principles

Other than where a mandatory sentence is prescribed, a sentencing magistrate or judge exercises a discretionary judgement which is subject to applicable statutory provisions and judge-made law.[67] That is, there are broadly two sources of the applicable principles; the relevant statutory provisions and the principles that have emerged from the decided cases.
[67] The State of Western Australia v Murray [2020] WASCA 190 [51].
As to principles that have emanated from the relevant cases, the High Court observed in Veen v The Queen (No 2):
Sentencing is not a purely logical exercise, and the troublesome nature of the sentencing discretion arises in large measure from unavoidable difficulty in giving weight to each of the purposes of punishment. The purposes of criminal punishment are various: protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform. The purposes overlap and none of them can be considered in isolation from the others when determining what is an appropriate sentence in a particular case. They are guideposts to the appropriate sentence but sometimes they point in different directions.[68]
[68] Veen v The Queen (No 2)(1988) 164 CLR 465, 476.
In Ryan v The Queen, in the course of a discussion about the emerging principles of sentencing for offences of paedophilia, McHugh J made a number of general remarks regarding sentencing. They included the following:
The established principles, recognising that punishment for crime serves a number of purposes, reflect competing factors and policies. They include the need to punish the offender, to protect society, to deter others and to rehabilitate and reform the offender.
Thus, the existing principles require many sentences to be retributive in nature, a notion that reflects the community's expectation that the offender will suffer punishment and that particular offences will merit severe punishment. The 'persistently punitive' attitude of the community towards criminals means that public confidence in the courts to do justice would be likely to be lost if courts ignored the retributive aspect of punishment. In the middle of the 20th century, the need for sentences that were conducive to the rehabilitation of the prisoner was much emphasised. Less attention was then paid to the retributive aspect which was often ignored by an embarrassing silence. But under the notion of giving the offender his or her 'just deserts', the retributive aspect has re-asserted itself in recent years.
Sentencing principles in this country have emphasised the need to protect the community by imposing sanctions that reduce crime by removing the offender from contact with the general population and by deterring the offender and others from committing offences – the so‑called 'reductive' justification for prison sentences.
Sentencing principles have also emphasised the need for the sentence to be proportional to the circumstances of the offence. This Court has referred to it as a 'fundamental principle'.[69]
[69] Ryan v The Queen (2001) 206 CLR 267 [45] – [48].

The authorities thus establish that the sentencing discretion is a complex and multifactorial exercise that is sensitive to the particular facts of each case, and that the relevant considerations may weigh differently in each case and may indeed conflict with each other.
The applicable statutory provisions are clear. Under s 59 of the RTA, the statutory penalty for a person convicted on indictment in circumstances of aggravation is a fine of any amount and imprisonment for 14 years. The penalty for summary conviction is imprisonment for 3 years or a fine of 720 penalty units, in effect $36,000.
Under s 9(6), if the statutory penalty specifies more than one penalty and uses the word 'and' between the penalties, then the penalties may be imposed alternatively or cumulatively. In contrast, if the penalty is a fine of a particular amount or a particular term of imprisonment, then the sentencing court must elect whether to impose a fine or a term of imprisonment.
It follows that the statutory penalty in this instance is a fine of any amount as well as a term of imprisonment of up to 14 years, however, the maximum penalty that the magistrate was able to impose was a fine of up to $36,000 or alternatively a term of imprisonment of up to 3 years.
The principles to be applied in sentencing are set out at s 6 of the Sentencing Act. Importantly, s 6 provides that the sentence must be commensurate with the seriousness of the offence which requires account to be taken of the statutory penalty, the circumstances of the offence including the vulnerability of any victim, any aggravating factors, and any mitigating factors. It was common cause between the parties that the relevant statutory penalty is the penalty prescribed on indictment, not the more limited penalty available on summary conviction.
Special considerations apply to a sentence of imprisonment.
First, pursuant to s 6(4), a court must not impose a sentence of imprisonment unless either the seriousness of the offence is such that only imprisonment can be justified, or the protection of the community requires a sentence of imprisonment. I pause at this point to observe that it is not suggested (nor in my view could it be suggested) that imprisonment is justified by reference to it being required for the protection of the community. Thus, in this matter, a sentence of imprisonment is only appropriate if the seriousness of the offence is such that only imprisonment can be justified.
It is noteworthy that Burt CJ in James v The Queen emphasised those same principles before the Sentencing Act was enacted. Burt CJ observed:
And it is also important, I think, to bear in mind that the question is not whether the person to be sentenced has committed an offence which can be said to be 'deserving of' imprisonment in the sense that without considering the alternatives it would sustain such a sentence. The question is whether in all the circumstances no other sentence is appropriate. And when the alternative being considered is a fine it is, I think, particularly important to bear this in mind.[70]
[70] James v The Queen [1985] WASC 42, 4.
Secondly, s 86 of the Sentencing Act provides that any term of imprisonment cannot be 6 months or less. That means, if, having regard to all of the circumstances of the case, the court concludes that an appropriate term of imprisonment would be 6 months or less, the court cannot impose a term of imprisonment but rather, is required to consider and impose one of the other sentencing options in s 39(2) of the Sentencing Act.[71]
[71] Johnson v Vander Zanden [2021] WASCA 27 [59].
In relation to the range of sentencing options more generally, s 39(2) sets out the hierarchy of sentences available to a sentencing court. The hierarchy begins with the most lenient and concludes with the harshest, imprisonment. Under s 39(3) a court must not use a sentencing option in ss (2) unless satisfied that it is not appropriate to use any of the options listed before that option.
The effect of s 39(3) is that if the court concludes that something less than a term of imprisonment is appropriate, then a sentence of imprisonment cannot be imposed.
A term of suspended imprisonment might be available and is, plainly, a less severe sentence than immediate imprisonment. Thus, a sentencing judge has to be positively satisfied that suspension of the term of imprisonment is not appropriate before a term of immediate imprisonment can be imposed. However, a suspended term of imprisonment does not operate in quite the same linear way as the other hierarchy of penalties set out in s 39. Section 76 provides that a term of suspended imprisonment cannot be imposed unless imprisonment for a term equal to that suspended would be appropriate in all the circumstances. That is, a sentencing court must first be satisfied that a term of imprisonment is the only sentence that can be justified and once that point is reached, the court can then turn its attention to whether it is appropriate to suspend the whole or part of that term.
More generally, s 39(3) does not require the court to approach the hierarchy of sentences in s 39(2) in a mechanical or linear fashion. A sentencing magistrate is to have regard to the various considerations relevant to each sentencing option in making comparisons between those options, in order to arrive at the state of satisfaction required by s 39(3). That may involve the consideration of the various requirements at different stages of the process. In the end what is critical to the propriety of the sentencing process is not when those requirements are considered, but that they are properly considered.[72]
[72] Johnson v Vander Sanden [60] - [61].

Applicable Principles of Appellate Review and Error

A ground of appeal which asserts that a sentence is manifestly inadequate asserts the existence of an implied error. It is necessary, in determining whether a sentence is manifestly inadequate, to examine it from the perspective of the maximum sentence prescribed by law for the relevant offence, the standards of sentencing customarily observed with respect to that offence, the place which the criminal conduct occupies on the scale of seriousness of offences of the kind in question, and the offender's personal circumstances.[73]
[73] The State of Western Australia v Molloy [2020] WASCA 123 [61] (Molloy).
The discretion conferred on a sentencing magistrate or judge is of fundamental importance and an appellate court may not substitute its opinion as to sentencing merely because the appellate court would have exercised the discretion in a different manner.[74]
[74] The State of Western Australia v Murray [52].
In that context, it is important to appreciate that reasonable people may legitimately differ as to what is an appropriate sentence within the sound discretionary range. In some limited circumstances (such as in borderline cases), different types of sentences may be reasonably open. That can be so even though the decision‑maker has to be positively satisfied that a lesser sentence is not appropriate.[75]
[75] Fogg v State of Western Australia [2011] WASCA 11 [9].
The appellant urges forcefully as its primary submission that I should conclude that the sentence imposed by the learned magistrate was manifestly inadequate and that I am required by law to set aside the learned magistrate's sentence and impose a sentence of a term of imprisonment. The appellant accepts it would be appropriate to suspend the sentence.
It follows from the principles I have outlined above, that the appellant's position necessarily bears the contention that the seriousness of the offence is such that a term of imprisonment of more than six months is the only sentence that can be justified, and I should be positively satisfied that any lesser sentence (including a prison sentence of six months or less) is inappropriate. In the appellant's view therefore, this cannot be a borderline case; more than six months prison and nothing less is the only appropriate outcome at law.
Against those principles I turn to consider the merits of this ground of appeal against the four factors set out by the Court of Appeal in Molloy and referred to in [80] above.
There is no dispute as to the maximum sentence prescribed by law for the relevant offence. As explained above, it is a fine of any amount and imprisonment for up to 14 years.
It is then necessary to have regard to the standards of sentencing customarily observed with respect to the offence.
It is important to observe that while for consistency it is necessary to have regard to sentences customarily imposed in cases involving similar offending, the range of sentences that have been imposed in the past does not fix the boundaries within which future judges must, or even ought to, sentence.[76] Caution must also be exercised in considering sentences imposed in other cases as inevitably there will be differences in the circumstances of the offences and the offender.[77]
[76] Munda v Western Australia (2013) 249 CLR 600 [39].
[77] Munda v Western Australia [33]
In Kershaw v State of Western Australia Buss JA observed that:
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.[78]
[78] Kershaw v State of Western Australia [2014] WASCA 111 [106] – [108] (Kershaw).
The decisions of the Court of Appeal indicate that these principles take on particular significance in offences for dangerous driving.
There is no tariff for cases of dangerous driving occasioning grievous bodily harm because of the great variation in the circumstances of the offending and offenders.[79] Further, there are only a limited number of cases concerning offences involving grievous bodily harm under s 59(1) of the RTA, whether under the 7 year maximum, or the 14 year maximum.
[79] Timbrell v Western Australia [No 2] [2013] WASCA 269 [44] (Timbrell).
In Kershaw, Buss JA observed [with citations omitted]:
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. The sentence to be imposed in a particular case depends on its individual facts and circumstances, after having regard to the maximum penalty.[80]
[80] Kershaw [110].
In respect of dangerous driving causing death, Owen JA (with whom Wheeler and Newnes JJA agreed) said in Barron v State of Western Australia:
The disposition in a particular case is extremely sensitive to the individual circumstances of the offending and of the offender. It demonstrates (if demonstration was needed) that there is no tariff for offences of this nature. I would go further and say that it is difficult to identify sentences that are commonly imposed for the offence of dangerous driving occasioning death. This is quintessentially an area in which the discretion residing in the first instance judicial officer must be accorded due respect.[81]
[81] Barron v State of Western Australia [2010] WASCA 27 [47].
Notwithstanding the flexible discretion which those cases undoubtably confirm, the appellant points to observations of the Court of Appeal that emphasise the gravity of the offence. The appellant accepted that other sentencing decisions provide limited assistance and that the wide variety of circumstances in which the offence occurs means there is no tariff for such offences. However, the appellant submitted that observations of the Court of Appeal, in effect, established that the offence of dangerous driving occasioning grievous bodily harm ordinarily attracted a term of imprisonment, even when the offence was caused by mere inattention rather than recklessness and even where other mitigatory factors were present such as remorse and positive antecedents.
In Abeyakoon v Brown, the Court of Appeal said:
The circumstances of the offence of dangerous driving occasioning bodily harm are so serious that imprisonment rather than any lesser sentence should be imposed.[82]
[82] Abeyakoon v Brown [2011] WASCA 63 [39].
In Timbrell, Buss JA (with whom Hall J agreed) said:
There will occasionally be cases where, as a matter of fact, the imposition of a lesser penalty than immediate imprisonment will be appropriate for an accused who has been convicted of an offence or offences contrary to s 59(1)(b).[83]
[83] Timbrell [61].
It must nevertheless be observed that the statute itself does not provide that imprisonment is the usual outcome or the starting point of sentencing for offences under s 59(1). Counsel for the respondent emphasised that the statute quite plainly provides for a sentence comprising only a fine and no imprisonment.[84] In contrast, the appellant contended in that regard that limiting the penalty to a fine was 'technically possible' but would be 'quite extraordinary'.[85]
[84] Respondent's Outline of Submissions (17 December 2021) [18].
[85] Appellant's Outline of Submissions (26 November 2021) [66].
Counsel for the appellant also drew attention to the Road Traffic Amendment(Driving Offences) Act 2018 (WA) which amended the RTA so as to lower the threshold of the circumstance of aggravation from 45 km/h to 30 km/h.[86] The amendment reflects a parliamentary intent that the respondent's conduct is to be regarded as more serious than under the RTA as it stood prior to the amendment.
[86] Appellant's Outline of Submissions (26 November 2021) [47].
In my view, what emerges from the statute and authorities in respect of an offence under s 59(1) of dangerous driving causing grievous bodily harm, may be summarised as follows:
(a)the maximum penalty prescribed by the statute is very significant, and all the more so where the offence was committed in circumstances of aggravation. A term of imprisonment of 14 years and a fine of any amount reflects the gravity of the offence as extremely serious;
(b)at the same time the statute provides for the possibility of a non‑custodial penalty;
(c)there is no general standard or 'tariff' in sentencing for the offence. Each case is extremely sensitive to the individual circumstances of the offending and of the offender. It is difficult to identify sentences that are commonly imposed for the offence; and
(d)there is nothing in the statute that limits the imposition of only a fine to cases that are 'quite extraordinary'. However, a term of imprisonment, either immediate or suspended is commonly if not usually the appropriate outcome even where the offence arose through inattention or careless error rather than recklessness.
I turn then to consider the place which the respondent's conduct occupies on the scale of seriousness of offences of the kind in question.
Counsel for the appellant pointed to the seriousness of the circumstances. Driving at 112 km/h in a 60 km/h zone without emergency lights or a siren was 'extremely and self‑evidently dangerous'.[87]
[87] Applicant's Outline of Submissions (26 November 2021) [59].
Counsel for the respondent directed attention to the learned magistrate's express findings that the respondent's conduct was not 'reckless'. Counsel for the respondent contended that this was of particular significance under the RTA. Sections 60 and 61 of the RTA provide for the offences of reckless driving and dangerous driving respectively. The difference between reckless and dangerous driving is well established. Driving may be objectively dangerous but not maliciously intended. In contrast, reckless driving entails a conscious disregard for the safety of others; it is where the driver 'adverted to the consequences of or the quality of the driving as being inherently dangerous or dangerous to the public or to any person and adverting to that, nonetheless recklessly proceeded indifferent to those consequences or the quality of the driving in question'.[88]
[88] Dunjey v Cross [2002] WASCA 14 [30] (Miller J) citing Attree v Randell (Unreported, Supreme Court of Western Australia, (Murray J), Library No 930397, 19 July 1993), 12.
Dangerous driving is a less serious offence than reckless driving and that is reflected in the statutory penalties for each offence. Counsel for the respondent pointed to the fact that the RTA contains no such distinction in circumstances of death or grievous bodily harm. Rather, in those circumstances the RTA distinguishes only between dangerous and careless. There is no separate offence of reckless driving causing death or grievous bodily harm.
Counsel for the respondent submitted that by his finding that the respondent's conduct had not been reckless, the learned magistrate intended to reflect the same distinction drawn by the RTA in the provisions regarding offences of dangerous and reckless driving in the absence of death or grievous bodily harm. Because the RTA does not identify a separate offence of reckless driving causing grievous bodily harm, the learned magistrate found it necessary to characterise the respondent's conduct as not reckless so as to make it clear that it was on the lower end of offending under s 59(1).
Having carefully considered the remarks of the learned magistrate I am unable to conclude that his Honour intended to draw the distinction in the manner submitted by counsel for the respondent. In my respectful view, it strains the words of the learned magistrate to read into them an intention to draw such a distinction based on statutory provisions to which he did not refer, and on that basis to conclude that his Honour intended to characterise the respondent's conduct as having been in the 'lower half' of offending conduct.
Moreover, the context here is quite different from the circumstances in which the courts have generally considered the distinction between dangerous driving and reckless driving. Here, there is no question that the respondent consciously and deliberately drove in the manner that constituted the offence. In addition, the respondent would appear to have consciously adverted to the potential danger and consequences of his driving, because he undertook an evaluation (albeit erroneously) that driving in that manner was justified in the public interest. Therefore, it seems to me that the learned magistrate was unlikely to have intended to refer to the usual distinction between reckless driving and dangerous driving. Rather, in characterising the respondent's driving as 'not reckless' the learned magistrate appears to have been referring to the quality of the respondent's intent. The magistrate was referring to the respondent's bona fides or good intentions in the pursuit of what he perceived to be the public interest, in contrast to a conscious and deliberate or malicious disregard for the public interest.
That is not to say that the finding that the respondent's conduct was 'not reckless' was insignificant. The learned magistrate found expressly that this was a significant finding. In my view, there was no error in the learned magistrate so finding. On the contrary, I think it was indeed significant that the respondent was intending to conduct himself in a manner that he thought was in the ultimate public interest in the course of his public duties. That his evaluation was tragically wrong and grossly misguided is reflected in his conviction. But it does not extinguish the quality of his intent and his good faith. The respondent's intent stands in marked contrast to the malice of reckless drivers who pursue their own selfish objects without the slightest regard for the public interest or the welfare of others.

The respondent's good faith arises from the fact that he was acting in the course of his duties as a police officer. That itself raises the issue that the parties before the learned magistrate and on appeal before this court, agreed was somewhat unique about the sentencing discretion in this matter: how does the fact the respondent was a police officer, acting in good faith in pursuing his duties, impact upon the sentencing discretion?
In my respectful view, that rather unique element creates a tension in the sentencing discretion because it pulls in two ways. On the one hand, there is the respondent's good intention that the learned magistrate found to be a significant matter and which I have discussed above.
In addition, in respect of the element of deterrence, in Moore v Russell, Tottle J observed:
In the case of offences of dangerous driving by police officers in the course of discharging their duties, the prospect of being prosecuted is itself a significant deterrent.[89]
[89] Moore v Russell [2020] WASC 413 [99].
The appellant submitted that the proposition as put by Tottle J 'should not be taken too far; the prospect of being prosecuted is a significant deterrent to any law‑abiding citizen'.[90] In my respectful view, the appellant's submission seeks to denude the comment of any real significance. Rather, in my respectful view, Tottle J correctly observed that there was a unique factor in the consideration of deterrence in the sentencing process where the offence arises in the course of the offender's service as a police officer. It cannot be said that this would apply equally to any citizen. The appellant appeared to accept that at least to some extent the respondent's status as a police officer on duty was mitigatory, however, 'the respondent's status as a police officer on duty did not outweigh his culpability for directly causing life‑changing injuries'.[91]
[90] Appellant's Outline of Submissions (26 November 2021) [55].
[91] Appellant's Outline of Submissions (26 November 2021) [67].
In these circumstances, the fact that the respondent committed the offence while honestly pursuing his duties as a police officer weighs, to some extent, in his favour.
On the other hand, as the learned magistrate himself observed, police officers are entrusted with the power to operate outside the law in certain limited circumstances. A police officer is also entrusted with broad powers in dealing with members of the public that are not available to ordinary citizens. The public have every right to expect that when a police officer exercises those powers it will be done in a way that very carefully and responsibly ensures that public safety is not unnecessarily jeopardised. It might therefore be said, that of all people, a police officer has a unique responsibility and is endowed with a privileged trust to ensure that when operating outside the strictures that bind everyone else, he or she does so with a heightened sense of care that bears little tolerance for any error.
Here, there is no doubt that the respondent was acting with misplaced enthusiasm and appallingly misdirected zeal in carrying out his policing. The consequences of overzealous policing can be no less corrosive of societal welfare and human harmony than the crime it seeks to restrain. One need not look too far even within the most developed of western democracies to observe the appalling consequences of overzealous policing. The respondent's conduct is very far from the worst example. However, it is vital that the courts remain ever vigilant in respect of such conduct, and that they hold to account law enforcement agencies, including police officers, who operate beyond the law, however well-intentioned they may have been.
The various factors I have referred to mean it is not a straightforward exercise to identify the place which the respondent's conduct occupies on the scale of seriousness of offences of the kind in question. There is no doubt that the manner of driving of itself was exceedingly dangerous. There is also no doubt that it was undertaken in good faith in the misguided pursuit of a public duty.
In addition to the observations of the Court of Appeal I have referred to above, the circumstances of Moore v Russell warrant some mention. There, a man seeking to escape and evade custody was being pursued by police on foot and in a police vehicle. As the police vehicle tracked the offender's escape, the police officer turned suddenly and sharply towards the offender intending to cut him off, but the vehicle collided with the offender, knocking him over. The police officer was convicted of dangerous driving under s 61 of the RTA and was fined $2,500. The police officer appealed both the conviction and the fine, the latter on the basis that it was manifestly excessive. In comments that have some limited relevance to this matter, Tottle J also, in effect, drew the distinction between driving in the course of duty as a police officer and wilfully selfish 'joy‑riding', observing:
The appellant was not engaging in dangerous driving for enjoyment or thrills or to further another unlawful purpose. As was implicit in the magistrate's sentencing remarks, the appellant made an error of judgment ...[92]
[92] Moore v Russell [97].
Tottle J concluded that the fine of $2,500 was manifestly excessive, set it aside and substituted a fine of $1,250.
As the parties accepted both before the learned magistrate and in this court, there is no case that is directly comparable. Relying on decisions in other jurisdictions presents some difficulty because the statutory provisions, and in particular, the statutory penalties, are different.
With that caveat I observe that Mossop J in the Supreme Court of the Australian Capital Territory sentenced a serving police officer who pleaded guilty to the offence of negligent driving occasioning death contrary to s 6(1) of the Road Transport (Safety and Traffic Management) Act 1999 (ACT).[93] The police officer was dispatched to respond to a 'life threatening or time critical situation'.[94] The police officer drove through a red light at an intersection and collided with a vehicle causing the death of the driver. The police officer had not activated the siren. He approached the intersection at a speed on between 100 km/h and 113 km/h in a 60 km/h zone. The victim's vehicle was travelling at 42 km/h. The offender was 38 years old and was found to be a person of exceptionally good character with no criminal history and a record of service to the community. Mossop J referred to the sentence imposed in a number of cases in different jurisdictions involving a police officer or emergency service worker. His Honour referred to the 'momentary negligence' of the police officer who was 'otherwise a person of exceptionally good character and who was acting in good faith in the course of his duties'.[95] Taking all the relevant circumstances into account, Mossop J concluded that the appropriate sentence was a term of imprisonment of five months, reduced by approximately 15% on account of the guilty plea resulting in a sentence of 4 months and 7 days.
[93] R v Chancellor [2019] ACTSC 191.
[94] R v Chancellor [7].
[95] R v Chancellor [55].
Finally, the factors set of by the Court of Appeal require me to have regard to the personal circumstances of the respondent. The circumstances are not in dispute and weigh in favour of the respondent.
I must take account of all the factors I have referred to above. In particular, I have taken account of the position that emerges from the authorities that I have summarised at [99] above. I have taken account of the gravity of the offending conduct; in particular the driving at 112 km/h in a 60 km/h zone without warning lights or a siren, leading to life‑changing injuries to an entirely innocent person with devastating consequences for her and her family. The community would expect such conduct to be sanctioned in a very significant manner. In addition to the observations of the Court of Appeal regarding the specific offence the subject of this appeal, the principles I have outlined above, both those developed through the courts and those embodied in the Sentencing Act, call for a sentence that reflects the gravity of the offending conduct. I must also weigh those factors against the mitigatory elements of the offence that I have referred to above and the circumstances of the respondent set out in the sentencing remarks of the learned magistrate.
Taking all of those elements into account, I have respectfully concluded that the sentence of $5,000 imposed by the learned magistrate is manifestly too lenient and thereby reflects implied error.
I acknowledge that the fine of $5,000 was accompanied by an order to pay significant costs in the sum of just less than $18,000 so that the total financial burden imposed on the respondent was just under $23,000. The respondent's counsel submitted that in considering whether the penalty was adequate, the court should take account of the 'overall liability on the respondent arising from the two figures' (ie, the penalty and the costs).[96]
[96] Respondent's Outline of Submissions (17 December 2021) [23].
Counsel for the appellant directed attention to Basham v City of Joondalup [No 2] in which Fiannaca J discussed the relationship of a fine and prosecution costs in the context of weighing the 'total financial burden' against the criminality of the offending.[97] The careful and helpful of analysis of Fiannaca J does not suggest that the reduction of a fine on account of a significant costs order so as to reflect the criminality of the offending, would necessarily reflect error. However, his Honour's analysis was principally directed to the assessment of the costs to be ordered against the offender in the context of maintaining 'proportionality', that is, ensuring that the costs together with the fine reflects an appropriate total financial burden in light of the offence. In the course of his analysis, Fiannaca J referred to the decision of Parker J in Thomas v Schwager in which Parker J expressed the view, in effect, that where the total financial burden is being considered, it is preferable to reduce the costs rather than the penalty to avoid detracting from the deterrent effect of the fine.[98] In my respectful view, there is much force in that proposition.
[97] Basham v City of Joondalup [No 2] [2016] WASC 120 (Basham).
[98] Thomas v Schwager (Unreported, Supreme Court of Western Australia, (Parker J), Library No 970719, 18 December 1997).
What emerges from the analysis of Fiannaca J as relevant to the present case, is that it is appropriate to have regard to the total financial burden imposed on the respondent by the combination of the fine and the costs order, but it is nevertheless important to consider the quantum of the fine itself and its adequacy in terms of the applicable sentencing principles. If a penalty is found to be manifestly inadequate, I do not understand the analysis in Basham and the cases discussed there, to suggest that the manifest inadequacy may be cured by the imposition of a significant costs order. While the total financial burden may be relevant, especially in the assessment of an appropriate costs order, once I have reached the conclusion that the fine was manifestly inadequate, I do not consider that the costs order can alter that conclusion.
I therefore grant leave in respect of Ground 2 and allow the appeal in respect of that ground. It follows that the learned magistrate's sentence must be set aside.
It therefore falls to the court to resentence the respondent.
Having regard to all the circumstances and the principles I have referred to above, I am unable to conclude that a prison sentence of more than six months is the only appropriate sentence. I have noted above the observation of the Court of Appeal that reasonable people may legitimately differ as to what is an appropriate sentence within the sound discretionary range and that in some borderline cases, different types of sentences may be reasonably open.
I consider that a prison sentence of less than six months is certainly an appropriate sentence and that a prison sentence of more than six months may be an appropriate sentence within a permissible range of sentences. The gravity of the offence and its consequences and the importance of a strong deterrence to other police officers compels that conclusion.
However, I am unable to agree that in all the circumstances a prison sentence of more than six months is the only appropriate sentence. In my view, the magistrate's unchallenged findings of honesty in respect of the offence and general good character, the unchallenged finding of good faith and intent, albeit appallingly misguided, in the carrying out of a public duty, the finding of remorse which I have upheld on this appeal and the personal antecedents and circumstances of the respondent weigh against the conclusion that imprisonment is the only appropriate sentence. The circumstances of this particular case do not compel the outcome that would usually follow for this offence as outlined at [99] above.
Accordingly, in my view the appropriate sentence is a fine. Clearly, that fine should be significantly more than $5,000.
In deciding the amount of the fine, s 53(1) of the Sentencing Act requires the court to take into account the respondent's means and the extent to which the fine will burden the respondent.
In the circumstances, it is appropriate that the matter be relisted for a further hearing to allow evidence and submissions to be advanced in respect of the matters in s 53 of the Sentencing Act. I shall hear the parties as to the appropriate course in that regard.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
NW
Associate to Justice Solomon
5 MAY 2022