LJM (A Child) v The State of Western Australia - [2005] WASCA 172

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: "LJM" (A CHILD) -v- THE STATE OF WESTERN AUSTRALIA [2005] WASCA 172

CORAM: STEYTLER P
ROBERTS-SMITH JA

HEARD: 1 AUGUST 2005

DELIVERED : 1 AUGUST 2005

PUBLISHED : 12 SEPTEMBER 2005

FILE NO/S: CACR 8 of 2005

BETWEEN: "LJM" (A CHILD)
Applicant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  CHILDREN'S COURT OF WESTERN AUSTRALIA
Coram  :FENBURY P
File No  :509-10   of 2004

Catchwords:

Criminal law and procedure - Application for leave to appeal against sentence - Dangerous driving causing death (two counts) - Whether sentences should be cumulative in relation to each count - Turns on own facts

Legislation:

Criminal Appeals Act 2004 (WA), s 31(4)(a)

Criminal Code (WA), s 689(3)

Young Offenders Act 1994 (WA)

Result:

Application for extension of time for leave to appeal allowed
Application for leave to appeal refused

Category: B

Representation:

Counsel:

Applicant: Ms M R Barone
Respondent: Mr K M Tavener & Mr C J Henderson

Solicitors:

Applicant: Aboriginal Legal Service
Respondent: State Director of Public Prosecutions

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

Attorney‑General v Tichy (1982) 30 SASR 84
Dicker v Ashton (1974) 65 LSJS 150
Grills v Ng (2000) 32 MVR 99
Herbert v The Queen (2003) 27 WAR 330
Jarvis v The Queen (1998) 20 WAR 201
Pearce v The Queen (1998) 194 CLR 610
Phillips v Carbone (No 2) (1992) 10 WAR 169
Plenty v Bargain [1999] WASCA 67
Postiglione v The Queen (1997) 189 CLR 295
R v Brown (1982) 5 A Crim R 404
R v Faithfull (2004) 142 A Crim R 554
R v Kay (2004) 147 A Crim R 401
R v Musson [1997] 1 VR 656
R v O'Brien & Gloster [1997] 2 VR 714
R v O'Rourke [1997] 1 VR 246
R v Price [2004] NSWCCA 186
R v Rossi, unreported; CCA of SA; 20 April 1988
R v Ruane (1979) 1 A Crim R 284
R v Scanlon (1987) 89 FLR 77
R v Snewin (1997) 25 MVR 553
R v Wilkins (1988) 38 A Crim R 445; 8 MVR 404
White v The Queen (2003) 39 MVR 157

Case(s) also cited:

"DRI" (A Child) v Read [2004] WASCA 240
Dao v The Queen, unreported; CCA SCt of WA; Library No 990015; 22 January 1999
Gavin v The Queen (1992) 6 WAR 195
Lowndes v The Queen (1999) 195 CLR 665
R v Everett (1994) 73 A Crim R 550
R v Gordon (1994) 71 A Crim R 459
R v Ward (1999) 109 A Crim R 159
Woods v The Queen (1994) 14 WAR 341

STEYTLER P: The applicant has applied for leave to appeal against the total sentence imposed upon him in respect of two charges of dangerous driving causing death. He has also applied for an extension of the time within which that application might be brought, there having been some delay in lodging it. At the conclusion of argument on the hearing of the application we granted the extension of time, but refused the application for leave to appeal. These are my reasons for doing so.
Because the applicant was 17 years and 10 months old at the time of the commission of the offences, 14 October 2003, he was dealt with by the Children's Court. He was sentenced, almost one year later, on 20 October 2004.
The charges, to which the applicant pleaded guilty, arose out of a single incident. It took place at about 3.00 am on 24 October 2003. The applicant, who had consumed a small amount of alcohol (his blood alcohol reading was then around .011 per cent) and smoked three "cones" of cannabis, got into his Holden VL Commodore motor car together with three passengers. One of these, a boy who was 14 years old, sat in the front passenger seat. The other two, both boys aged 15, sat in the back. None of the passengers was wearing a seatbelt. The applicant drove the motor car at high speeds around the boundaries of the Warmun Aboriginal Community. He spun the wheels of the car from side to side, causing the rear of the vehicle to slew. He was, as the then President of the Children's Court put it, "generally hooning about". The applicant was also doing what the President referred to as "snakies", being intervals of hard acceleration of the car followed by hard braking, causing the car to travel sideways. All of this took place at high speeds and over a considerable distance, some one and a half to two kilometres in total. The applicant eventually lost control of the car near a bend in the road. The car slid sideways for 25 metres or so and then slammed into a steel power pole. The rear passenger compartment was torn open and the two 15‑year‑old boys, both nephews of the applicant, were thrown out. One of them died immediately and the other died soon afterwards. The damage to the car was so severe that it was difficult to recognise what model of vehicle it was from photographs which were taken of it.
When sentencing the applicant, the President took into account a number of circumstances in mitigation. The character evidence before the Court (in particular, a letter from a Police Sergeant who was, effectively, the applicant's foster father) demonstrated that the applicant was a young man of good qualities who had had much to look forward to. The evidence also established that the applicant, who has strong family support, was shocked and remorseful about what he had done. He pleaded guilty at the earliest opportunity and co‑operated fully with authorities. Indeed, it was the applicant who volunteered the information concerning the smoking of the cannabis (although the cannabis ingestion was regarded by the sentencing Judge as a matter of little significance because, as he found, the collision with the power pole was the product of "the deliberate and sustained manner of driving" rather than "poor driving caused by impairment of mental process or physical ability caused by alcohol or drugs").
With one important exception, the applicant had no criminal record of any significance. The exception was a conviction for reckless driving on 16 February 2003, only eight months before the current offences. That offence occurred at 12.50 am on 16 February 2003 on Great Northern Highway, Halls Creek. A police officer observed the applicant doing a "burnout" in his Holden Commodore at the intersection of Duncan Road and Great Northern Highway. That is to say, he saw that, by accelerating and braking, the applicant was causing his car to do a 360‑degree turn with the tyres squealing. The car then headed east on Great Northern Highway and pulled off onto the gravel, where it again did a "burnout", this time spinning 180 degrees and sliding from the gravel onto the highway with the tyres squealing loudly. When the car was stopped by the police officer, there were five passengers in it. As the President said, this was a more than usually significant prior conviction, because of the similarities of driving between this incident and the current offences.
Having considered all of these circumstances, and the various matters which were favourable to the applicant, and having taken into account the principles expressed in the Young Offenders Act 1994 (WA), the sentencing Judge imposed sentences of 1 year's imprisonment on each of the charges, to be served cumulatively. He ordered that the applicant should be eligible for parole. In deciding to impose those sentences of imprisonment, the President was motivated by the serious nature of the offences and the need to deter others from committing like offences. He referred to the maximum penalty in respect of any one offence, being one of imprisonment for 4 years, and said that, as an example of dangerous driving, this case fell "near the top of the range in dangerousness" and was such as to demand a sentence of imprisonment.
There are two proposed grounds of appeal. The first is that the President erred in making the sentences fully cumulative upon each other in circumstances in which the offences arose out of a single episode of driving, resulting in two deaths. The second is that the President erred by failing to take into account the principle of totality in making the sentences fully cumulative upon each other. Counsel for the applicant does not contend that either sentence was excessive or that anything other than a sentence of imprisonment was appropriate.
As to the first of the proposed grounds, reference is often made, in this kind of context, to the so‑called "one transaction rule" or "continuing episode rule". This is essentially that concurrent sentences should be imposed in respect of a number of offences which "arise from substantially the same act or same circumstances or a closely related series of occurrences": R v Brown (1982) 5 A Crim R 404 at 407. In Attorney‑General v Tichy (1982) 30 SASR 84 at 93, the rule was said to apply in a case of "one multi‑faceted course of criminal conduct" and, in Pearce v The Queen (1998) 194 CLR 610 at 650 [120], Kirby J said that a judge may make sentences for multiple offences of which an accused is convicted concurrent if they are "considered to be manifestations of the one criminal enterprise, transaction or episode".
The underlying principle of the "rule" (which is not, in truth a rule at all, but merely a guideline, with each case depending upon its own circumstances: R v Ruane (1979) 1 A Crim R 284; R v Faithfull (2004) 142 A Crim R 554 at 588 [28]; R v O'Rourke [1997] 1 VR 246 at 253 and R v O'Brien & Gloster [1997] 2 VR 714 at 720 ‑ 721) has been said to be that all the offences taken together constitute a single invasion of the same legally protected interests: D A Thomas, "Principles of Sentencing" (2nd ed) at 53. However, the "rule" has been applied in other circumstances: see, for example, R v Scanlon (1987) 89 FLR 77 and Dicker v Ashton (1974) 65 LSJS 150 at 151. In the last mentioned case Wells J said:
"… unless the circumstances are exceptional or the offences in question are the terminal product of separate and independent courses of criminal conduct that happen to have occurred together, a Court is not ordinarily justified in imposing cumulative sentences of imprisonment for offences that are of a similar character or ordinarily associated, and that simply represent facets of one course of conduct."
In the end, the guiding principle is that mentioned by McHugh, Hayne and Callinan JJ in Pearce, at 623, namely that the punishment to be exacted should reflect what an offender has done and should not be affected by the way in which the boundaries of particular offences are drawn.
The issue of the so‑called "one transaction rule" has arisen on a number of occasions in the context of motor vehicle accidents. In R v Musson [1997] 1 VR 656, the Victorian Court of Appeal dealt with a case in which the appellant, while intoxicated, had driven dangerously and erratically in heavy traffic before colliding with three other vehicles. One of them was driven by a man who had his 18‑month‑old son as a passenger. The driver died as a result of injuries sustained in the collision and his son sustained leg and arm fractures and a fractured skull. The appellant was convicted on one count of culpable driving causing death and on one count of negligently driving a motor vehicle so as to cause serious injury. He was sentenced to a term of 6 years' imprisonment for the culpable driving and to one of 2 years' imprisonment for negligent driving, 1 year of which was to be served cumulatively, with a total minimum sentence of 4½ years. On the appeal, Hedigan AJA, with whom Winneke P and Hayne JA agreed, said (at 661) that the sentencing Judge was entitled, so far as the second count was concerned, to consider that a sentence of imprisonment was necessary to punish that crime, the rights of the child having been "no less than those of his father" and that, having done so, the trial Judge had been careful to observe and apply the appropriate principle requiring regard to be had to totality by "cumulating but one year of the term on count 2". Hedigan AJA said (at 660) that there is no principle that cumulation cannot be supported when there are two consequences of a single event and that the law "does not so circumscribe the exercise of sentencing discretions".
In R v Wilkins (1988) 38 A Crim R 445; 8 MVR 404 Lee CJ at CL (with whom Carruthers and Allen JJ agreed), said at 449 ‑ 450:
"Parliament has laid down in s 52A of the Crimes Act 1900 (NSW) that the maximum penalty for culpable driving involving driving in a manner dangerous and causing death is five years and it seems extraordinary at the outset that it can be said that, whether you kill one or whether you kill fifty, the penalty is to be five years, provided you do it on the one occasion.
The reality of the situation surely is that drivers of all vehicles on the road must be taken to know that they can do enormous damage to life and limb if they drive irresponsibly, drive in a manner dangerous to the public.
… [I]t would be extraordinary that a driver, knowing that he may, if he gets himself onto the wrong side of the road on a main highway, kill one or four or ten or a dozen people or a bus full of people, can come before a court and claim that he should be sentenced and kept in gaol in respect of the death of only one. To me that itself is demonstrative of the fact that the practice cannot be an inflexible practice and that it must give way to reason and commonsense. The criminality and gravity of all the offences is not to be judged merely as if the appellant were charged under s 4(1) of the Motor Traffic Act 1909 (NSW) with dangerous driving. To mete out a penalty that recognises the actual consequences of his action is not unjust or unfair; indeed, it is wholly in accord with the ordinary principles of justice. Where the maximum penalty for any one offence is insufficient to reflect the gravity of the crime committed the court not only may but ought to impose cumulative sentences."
A somewhat different approach appears to have been adopted in R v Snewin (1997) 25 MVR 553. There the Court of Criminal Appeal of the Supreme Court of South Australia dealt with a case in which the appellant had driven a semi‑trailer along a public highway at 90 to 100 kph. He caused it to veer onto the incorrect side of the road on a number of occasions, before finally colliding with two cars travelling in the opposite direction. Six people were killed. Olsson J (with whom Bleby J agreed) commenced his assessment of the appropriate sentence (at 555) by taking into account that, although six people had been killed, that outcome had been the unintended and unfortunate product of a single accident. Similarly, Williams J said, at 558, that it should not be overlooked that the appellant was to be punished for his conduct in respect of one incident and not in respect of six separate deaths (although he added that the fact that the appellant had put so many people at risk by his irresponsible conduct was a matter which could not be ignored).
In White v The Queen (2003) 39 MVR 157 the Court of Criminal Appeal in this State dealt with an offender, having at the time a blood alcohol reading of 0.072 per cent, who had deliberately accelerated into an intersection through a clearly visible stop sign before striking a passing car containing a young married couple and their two children. Both parents were killed. Templeman J (with whom Scott and Wheeler JJ were in agreement) agreed (at [19] and [20]) with the view which had been taken by the trial Judge to the effect that the number of victims did not automatically increase the penalty "by that number arithmetically" but that the fact that more than one person was killed was a factor to be taken into account in the overall consideration of the penalty.
In R v Kay (2004) 147 A Crim R 401, the Court of Criminal Appeal was called upon to deal with an appeal against sentence in a case in which the dangerous driving of the appellant had caused the deaths of two people, grievous bodily harm to one person and bodily harm to another. Miller J (with whom Murray and Wheeler JJ agreed) adopted (at [56]) what had been said by Lee CJ at CL in R v Wilkins, saying that he preferred those observations to the approach adopted in Snewin, to the extent that the two approaches were in conflict.
Finally, in R v Price [2004] NSWCCA 186 the respondent to the Crown appeal was convicted of two counts of dangerous driving causing death in circumstances in which, while driving at an excessive speed when under the influence of alcohol, his car left the road before crashing into a tree, resulting in the death of his two passengers. The trial Judge sentenced the respondent on each matter, to a concurrent term of 2 years' imprisonment with a non‑parole period of 12 months. On the appeal the Court (Hulme, Simpson and Howie JJ) held (at [1] and [51]) that the reason given by the sentencing Judge for imposing concurrent sentences (being that the offences arose "out of exactly the same circumstances") did not take into account, "within the proper application of the principle in Pearce", the fact that "the totality of the criminality resulting from a single act of driving … was aggravated by the fact that the respondent had two passengers in his vehicle" and that his driving "resulted in the death" of both of them. Simpson and Howie JJ (with whom Hulme J was relevantly in agreement) said, at [38], that the fact that more than one person was killed as a result of the driving was "such a significant attribute of the criminality arising from the offences charged against the respondent, that it had to result in a significant increase in the sentence that would have been appropriate in the typical case when only one person had been killed" (see also at [63]). They said, at [49], that it will "rarely be the case that sentences for multiple offences of dangerous driving causing death could be made wholly concurrent".
I will return to this topic below, after touching upon the totality principle. That principle was described by McHugh J, in Postiglione v The Queen (1997) 189 CLR 295 at 307 ‑ 308, as follows:
"The totality principle of sentencing requires a judge who is sentencing an offender for a number of offences to ensure that the aggregation of the sentences appropriate for each offence is a just and appropriate measure of the total criminality involved."

His Honour went on (at 308) to refer to the following remarks from King CJ in R v Rossi, unreported; CCA of SA; 20 April 1988:
"There is a principle of sentencing known as the principle of totality, which enables a court to mitigate what strict justice would otherwise indicate, where the total effect of the sentences merited by the individual crimes becomes so crushing as to call for the merciful intervention of the court by way of reducing the total effect."

See also Jarvis v The Queen (1998) 20 WAR 201 at 205 ‑ 207 per Ipp J and Herbert v The Queen (2003) 27 WAR 330 at 334 ‑ 338, per Malcolm CJ, and 364 ‑ 366, per Anderson J.

In my opinion, whatever approach might best be followed in respect of the so‑called "one transaction rule" in a case of this kind, I am not persuaded that this is a matter in which this Court would be justified in interfering with the sentences imposed, either by resort to that "rule" or by resort to the totality principle. The Court may only allow an appeal against sentence if, in its opinion, a different sentence should have been imposed: s 689(3) of the Criminal Code and, now, s 31(4)(a) of the Criminal Appeals Act 2004 (WA). I do not consider that any lesser sentence should have been imposed than one of 2 years' imprisonment, however that total sentence might have been made up. A total sentence of that magnitude seems to me to be a just and appropriate measure of the total criminality involved in these offences. Even taking into account the principles to be applied under the Young Offenders Act 1994 (WA), and all of the matters favourable to the applicant, including his good character, early pleas of guilty and genuine remorse, it seems to me that the offences were so serious, and the need for general deterrence so great, as fully to justify the total sentence which was imposed.

It was for these reasons that I joined in the decision to refuse the application for leave to appeal.
ROBERTS-SMITH JA: Following the hearing of this application for leave to appeal against sentence on 1 August 2005, we ordered that the application be dismissed and said we would give our reasons later. I thought the application for leave should be refused because I was of the view that the overall sentence of 2 years' imprisonment was appropriate and it could not be said that a different sentence should have been passed (s 689(3) Criminal Code; s 31(4)(a) Criminal Appeals Act 2004). I have, on further reflection, come to the conclusion that the sentencing Judge did err, albeit in a way which, corrected, would lead to the same overall result.

My reasons for coming to that conclusion, and the consequence of it, are set out below.

I have had the benefit of reading in draft the reasons of Steytler P and agree with all in them, but make the following additional observations.
It is necessary to begin with the sentencing framework established by legislation and principle.
It is logically correct to say, as his Honour did, that where an offender is convicted of two counts of dangerous driving causing death, the statutory maximum penalty available is the aggregate of the two maxima of 4 years' imprisonment. (Although it is also now the fact that because of cl 2(1) of Sch 1 and s 22 and s 29(2) of the Sentencing Legislation Amendment and Repeal Act 2003 (WA) (No 50 of 2003) the statutory maximum is effectively now reduced by one‑third). However, it would usually be an error for a court to impose two wholly cumulative sentences of the same length in respect of two deaths caused by the same act or conduct of driving, as indeed it would usually be an error to make such sentences wholly concurrent.
It was held in Phillips v Carbone (No 2) (1992) 10 WAR 169 that an offender is liable to punishment for two or more offences of dangerous driving causing grievous bodily harm even though the injuries to each of the victims is caused by the same incident of driving. In such a case the principle of double jeopardy is not infringed. The principle was then reflected in s 16 of the Criminal Code, which relevantly provided that "a person … shall not be twice punished for the same act or omission". The Court held that the word "act" meant "the thing doing" rather than "the means of doing it" and in respect of those offences, the act done was the causing of grievous bodily harm.
Section 16 was subsequently replaced by s 11 Sentencing Act 1995 (WA). Section 11(1) provides:
"If the evidence necessary to establish the commission by a person of an offence under the law of this State is also the evidence necessary to establish the commission by that person of another such offence, the person may be charged and convicted of each offence but is not to be sentenced for more than one of the offences."
The reasoning in Phillips v Carbone has been applied in respect of s 11. In Plenty v Bargain [1999] WASCA 67 McKechnie J held (at [72]) that the section requires that the evidence in each case should be identical before it becomes operative, quoting the following passage from the judgment of Ipp J in Phillips v Carbone, at 190:
"In my view s 16 is intended to provide protection to a person who is found guilty of one offence and then is found guilty of another upon substantially the same facts. It is not in my view intended to give protection to a person who by one physical act or omission causes multiple harm to different persons or things. It is not for example intended to avail the person who by a single act of depressing a plunger causes an explosion that injures more than one victim … An act or omission constitutes more than one offence only if the evidence necessary to support the later charges would have been sufficient to procure legal conviction on the first charge."
Parker J reached a similar conclusion in Grills v Ng (2000) 32 MVR 99, at [9] ‑ [12].
Notwithstanding an offender is liable to be convicted and punished in respect of each offence, the High Court has held in Pearce v The Queen (1998) 194 CLR 610 that it would be wrong to punish an offender more than once for the commission of elements that are common to multiple offences. In so holding, the majority (McHugh, Hayne and Callinan JJ, with whom Gummow J agreed) recognised (at [37]) that to punish the whole of the offender's criminal conduct, there will be cases in which more than one offence must be charged and punishment exacted for each. Nonetheless, as their Honours said (at [40]):
"To the extent to which two offences of which an offender stands convicted contain common elements, it would be wrong to punish that offender twice for the commission of the elements that are common. No doubt that general principle must yield to any contrary legislative intention, but the punishment to be exacted should reflect what an offender has done; it should not be affected by the way in which the boundaries of particular offences are drawn. Often those boundaries will be drawn in a way that means that offences overlap. To punish an offender twice if conduct falls in that area of overlap would be to punish offenders according to the accidents of legislative history, rather than according to their just deserts."
In Pearce itself, the offences were first, maliciously inflicting grievous bodily harm with intent to do so and secondly, breaking and entering a dwelling and inflicting grievous bodily harm (on the same victim). The appellant had been sentenced to 12 years' imprisonment on each offence, to be served concurrently. The members of the majority concluded ([43]) the sentence on each of those counts contained a portion which was to punish the appellant for his inflicting grievous bodily harm on the victim, so that prima facie he was doubly punished for the one act. The order that the sentences be served concurrently did not detract from that.
Although their Honours allowed that, looked at overall, it could be said the effect of the sentences imposed was not disproportionate to the criminality of his conduct, they nevertheless considered the sentences were flawed and must be quashed. The individual sentences were flawed because they punished the appellant twice for the one act, namely the infliction of grievous bodily harm. The order they be served wholly concurrently failed to take account of the differences in conduct which were the subject of punishment on each count. Their Honours pointed out that an appeal against sentence called into consideration the individual sentences, not just their overall effect.
Kirby J considered (at [130]) insufficient attention was disclosed by the sentencing Judge to the risk of punishing the appellant twice for the conduct constituting the infliction of grievous bodily harm common to both offences. Despite that, his Honour thought that the total effective sentence was not erroneous and there was no real possibility the appellant had been punished twice. The total sentence, was, in his view, correct.
In the present case, his Honour imposed two sentences of 2 years' imprisonment and made them concurrent to achieve what he regarded as an overall sentence proportionate to the applicant's overall criminality. I agree that the aggregate was proportionate but the problem with the individual sentences is necessarily the same as that identified in Pearce: it seems the applicant has been twice punished for the one incident of driving which resulted in the two deaths. Error has therefore been demonstrated in that a different sentence should have been passed. That necessitates consideration of what sentence is appropriate for each offence and the question of concurrency or accumulation to proportionately reflect the applicant's overall criminality.
The relevant principle is explained in R v Wilkins (1988) 38 A Crim R 445; 8 MVR 404; White v The Queen (2003) 39 MVR 157 and R v Kay (2004) 147 A Crim R 401, referred to by Steytler P. I agree that the approach taken in those cases is to be preferred to that in R v Snewin (1997) 25 MVR 553.
The principle as I take it to be was also applied in R v Price [2004] NSWCCA 186. There, the respondent had attended a 21st birthday party at a football club. He had consumed alcohol there and about 1.30 am decided to go to a nearby hotel. He asked a friend to move his car from the club to the hotel because he felt intoxicated. He left the hotel about 3.30 am, taking with him in the vehicle a long‑standing friend aged 23 and the deceased's friend, a female aged 25. About five minutes after leaving the hotel he lost control of the vehicle when negotiating a bend in the road because of his intoxicated state. It was a paved road and in relatively good condition, dry and reasonably well lit. The vehicle slid 38 metres into a tree, almost sideways, causing extensive damage to the whole of the passenger side and resulting in the death of his two passengers.
Simpson and Howie JJ (with whom Hulme J agreed in this respect) pointed out that it is simply not the law, and never has been, that because two offences arise out of exactly the same circumstances, they should be dealt with by concurrent sentences. If the total criminality cannot be reflected in a single sentence, a sentencer is required to cumulate the sentences, notwithstanding that the offences arose from a single criminal episode. Their Honours referred to R v Wilkins and noted that the principle applied notwithstanding what the High Court had said in Pearce. They went on to say ( at [48] ‑ [49]):
"[48]Since Pearce it has been accepted that, generally speaking, the criminality arising from a particular offence is to be reflected in the sentence for that offence, and the issue of totality addressed by a consideration of whether the sentences are to be served concurrently or cumulatively. In Skrill [R v Skrill [2002] NSWCCA 484], above, it was held by a majority of this Court that sentences for aggravated dangerous driving causing death and aggravated dangerous driving causing grievous bodily harm arising from the one incident of driving should have been imposed partly cumulatively to reach an appropriate overall sentence. See also Gorman [2002] NSWCCA 516 in respect of sexual assault offences arising from the same incident.
[49]It will rarely be the case that sentences for multiple offences of dangerous driving causing death could be made wholly concurrent. Because, as was noted earlier, the criminality in the offence is not simply derived from the culpable act of driving without having regard to the consequences, the fact that more than one person is killed means that the criminality will not usually be sufficiently comprehended by a sentence that is appropriate for a single offence. In the present case, even assuming that a sentence of two years was appropriate for one offence …"
And at [50] their Honours said:
"It is clear that there have been a number of decisions of this Court that have either approved of, or imposed, concurrent sentences for multiple offences under s 52A even where more than one death has occurred. Some examples are set out in the judgment of Wood CJ at CL in R v Plumb [2003] NSWCCA 359 at [19]. That was an offender’s appeal against a sentence in which partly cumulative sentences were imposed for two offences arising from the one act of driving. As the Chief Judge notes, in none of the cases cited was any reference made to Pearce or its impact upon cases of multiple victims in dangerous driving cases. After referring to Skrill and Wilkins the Chief Judge, with whom Smart AJ agreed, stated:
'I am not persuaded in the present case, having regard to the very serious injuries inflicted on the two victims, that some degree of accumulation was not called for. Otherwise it is difficult to see how the overall objective criminality could be accommodated within the confines of Pearce'."
Since Pearce, it is clear that the sentence imposed with respect to each of a group of multiple offences must be appropriate to the circumstances of that offence; overall criminality must be recognised by total or partial cumulation of sentences and the principle of totality must be accommodated by the extent to which the individual sentences are made concurrent or cumulative.
Applying that approach here, having regard to the features of these offences as described by Steytler P, were it necessary for this Court to determine the appeal, I would have allowed the appeal and set aside the sentence. In lieu thereof, I would have imposed a sentence of 18 months' immediate imprisonment in respect of count 1 and 12 months' immediate imprisonment on count 2, the latter to commence on 20 October 2004. I would have ordered that the sentence on count 1 commence on the expiration of 6 months of the sentence on count 2. That would have made an aggregate sentence of 2 years' imprisonment. I would have ordered that the appellant be eligible for parole.
However, this is an application for leave to appeal against sentence and leave ought not be granted when the outcome would be to produce effectively the same result as the sentence sought to be appealed. In this case, the end result would be exactly the same. Leave to appeal should accordingly be refused.