Longbottom v The State of Western Australia
[2008] WASCA 203
•8 OCTOBER 2008
LONGBOTTOM -v- THE STATE OF WESTERN AUSTRALIA [2008] WASCA 203
| (2008) 38 WAR 396 | |||
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2008] WASCA 203 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:29/2008 | 6 AUGUST 2008 | |
| Coram: | STEYTLER P WHEELER JA MILLER JA | 8/10/08 | |
| 31 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| A | |||
| PDF Version |
| Parties: | STEVEN RUSSELL LONGBOTTOM THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law Sentencing Two counts of dangerous driving causing death Two deaths Cumulation of sentences Totality Pearce applied |
Legislation: | Criminal Appeals Act 2004 (WA), s 31(4)(a) Road Traffic Act 1974 (WA), s 59, s 59B(3) Road Traffic Amendment Act (No 2) 2007 (WA), s 22 Sentencing Act 1995 (WA), s 3, s 6, s 7, s 8, s 11, s 39, s 88 |
Case References: | Director of Public Prosecutions (Vic) v Solomon [2002] VSCA 106; (2002) 36 MVR 425 Eves v The State of Western Australia [2008] WASCA 7; (2008) 49 MVR 259 Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616 Kay v The Queen [2004] WASCA 222; (2004) 147 A Crim R 401 Kennewell v Rand [2006] ACTCA 10 Martino v The State of Western Australia [2006] WASCA 78 Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59 Neal v State 357 P.2d 839 (1960 California) Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 Phillips v Carbone (No 2) (1992) 10 WAR 169 Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295 R v Cameron [2005] NSWCCA 359; (2005) 157 A Crim R 70 R v Cutler [2008] WASC 208 R v Faithfull [2004] WASCA 39; (2004) 142 A Crim R 554 R v Guariglia [2001] VSCA 27; (2001) 33 MVR 543 R v Janceski [2005] NSWCCA 288; (2005) 44 MVR 328 R v Penn (1994) 19 MVR 367 R v Plumb [2003] NSWCCA 359 R v Price [2004] NSWCCA 186 R v Sessions [1998] 2 VR 304; (1997) 95 A Crim R 151 R v Skrill [2002] NSWCCA 484; (2002) 38 MVR 175 Re Warden Calder; Ex parte Cable Sands (WA) Pty Ltd (1998) 20 WAR 343 Scott v The Queen (Unreported, WASCA, Library No 990004, 15 January 1999) State of Alaska v Dunlop 721 P.2d 604 (1986) Sua v The Queen [2007] NSWCCA 271 Taylor v The State of Western Australia [2007] WASCA 218; (2007) 177 A Crim R 81 Wilkins (1988) 38 A Crim R 445 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : LONGBOTTOM -v- THE STATE OF WESTERN AUSTRALIA [2008] WASCA 203 CORAM : STEYTLER P
- WHEELER JA
MILLER JA
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : MARTINO DCJ
File No : IND KAL 71 of 2006
Catchwords:
Criminal law - Sentencing - Two counts of dangerous driving causing death - Two deaths - Cumulation of sentences - Totality - Pearce applied
(Page 2)
Legislation:
Criminal Appeals Act 2004 (WA), s 31(4)(a)
Road Traffic Act 1974 (WA), s 59, s 59B(3)
Road Traffic Amendment Act (No 2) 2007 (WA), s 22
Sentencing Act 1995 (WA), s 3, s 6, s 7, s 8, s 11, s 39, s 88
Result:
Appeal dismissed
Category: A
Representation:
Counsel:
Appellant : Mr M R Hall
Respondent : Mr B Fiannaca SC
Solicitors:
Appellant : Hall & Hall Lawyers
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Director of Public Prosecutions (Vic) v Solomon [2002] VSCA 106; (2002) 36 MVR 425
Eves v The State of Western Australia [2008] WASCA 7; (2008) 49 MVR 259
Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616
Kay v The Queen [2004] WASCA 222; (2004) 147 A Crim R 401
Kennewell v Rand [2006] ACTCA 10
Martino v The State of Western Australia [2006] WASCA 78
Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59
Neal v State 357 P.2d 839 (1960 California)
Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610
Phillips v Carbone (No 2) (1992) 10 WAR 169
Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295
R v Cameron [2005] NSWCCA 359; (2005) 157 A Crim R 70
(Page 3)
R v Cutler [2008] WASC 208
R v Faithfull [2004] WASCA 39; (2004) 142 A Crim R 554
R v Guariglia [2001] VSCA 27; (2001) 33 MVR 543
R v Janceski [2005] NSWCCA 288; (2005) 44 MVR 328
R v Penn (1994) 19 MVR 367
R v Plumb [2003] NSWCCA 359
R v Price [2004] NSWCCA 186
R v Sessions [1998] 2 VR 304; (1997) 95 A Crim R 151
R v Skrill [2002] NSWCCA 484; (2002) 38 MVR 175
Re Warden Calder; Ex parte Cable Sands (WA) Pty Ltd (1998) 20 WAR 343
Scott v The Queen (Unreported, WASCA, Library No 990004, 15 January 1999)
State of Alaska v Dunlop 721 P.2d 604 (1986)
Sua v The Queen [2007] NSWCCA 271
Taylor v The State of Western Australia [2007] WASCA 218; (2007) 177 A Crim R 81
Wilkins (1988) 38 A Crim R 445
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1 STEYTLER P: I have read the judgment of Miller JA and agree that this appeal against sentence should be dismissed. I will not repeat what he has said, save so far as is necessary for me to give my own reasons for arriving at that outcome.
2 The appellant was convicted, after a trial, on two counts of dangerous driving causing death. After drinking alcohol, and notwithstanding that his driver's licence had been disqualified for four months following a conviction for driving with a blood alcohol content in excess of 0.08%, the appellant drove his car, with three passengers in it, on the night of 10 November 2005. He drove too fast in the circumstances. Notwithstanding that one of his passengers asked him, twice, to slow down, he did not do so. He lost control of his car and it crashed. Two of his passengers died as a result of injuries received in the crash. The appellant's blood alcohol level at the time of the crash was 0.089%.
3 The appellant was 19 years old at the time. He is remorseful for what he has done and is well spoken of by members of the community. He offered, at an early stage, to plead guilty to the offences of which he was convicted but that offer was not accepted. This was because the prosecutor had charged him with two counts of manslaughter and was unwilling to accept the lesser pleas.
4 The sentencing judge imposed sentences of 1 year and 8 months' imprisonment in relation to each count and ordered that those sentences be served cumulatively. The sole ground of appeal is that the order for total cumulation of the sentences was an error because it necessarily had the result that the appellant was punished twice for the commission of common elements of each offence (dangerous driving arising out of the fact that the appellant drove too fast and with an alcohol level that exceeded the prescribed limit).
5 The issue of sentencing for common elements of multiple offences was explored in Eves v The State of Western Australia [2008] WASCA 7; (2008) 49 MVR 259. I remain of the opinion, there expressed, that there are two applicable principles in a case such as the present. The first is that there is no requirement that wholly concurrent terms be imposed for multiple offences constituting one transaction or a continuing episode: R v Faithfull [2004] WASCA 39; (2004) 142 A Crim R 554 [28] and the cases there referred to. The second is the more pertinent (for present purposes) principle identified in Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 [40] that, to the extent to
(Page 5)
- which an offender stands convicted of offences containing common elements, it would be wrong to punish that offender twice for the commission of elements that are common. That principle has since been affirmed in Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616 [27], [34] and [38]. This second principle seems to me to have the inevitable consequence that it is unsound in principle to impose a sentence that fully addresses each element of the offence on each count and then wholly aggregate the sentences so imposed.
6 The preferable approach, when sentencing for multiple offences, is to consider, first, what sentence is appropriate for each offence in the circumstances of the case and then to ensure, by adjusting the total sentence to the extent necessary (if at all), that the total sentence fairly and justly reflects the total criminality of the appellant's conduct and is not crushing: Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295, 307 - 308; Martino v The State of Western Australia [2006] WASCA 78 [16]. When adopting that approach in a case in which there are elements that are common to each offence, the commonality of these elements seems to me to be best recognised, ordinarily, by orders for partial concurrency of the sentences imposed. That way, the individual sentences will be adequate to reflect the gravity of each offence: s 6(1) of the Sentencing Act 1995 (WA).
7 On one view, this approach might be thought to be inconsistent with the holding in Pearce. In that case sentences had been imposed in respect of two different offences, one of inflicting grievous bodily harm with intent and one of breaking and entering a dwelling and inflicting grievous bodily harm in the dwelling. In each case the victim, and the grievous bodily harm inflicted on him, was the same. The sentence imposed on each offence was said by the High Court to have fully punished the appellant for his infliction of grievous bodily harm on the victim. The court held that the offender was punished twice for that common element notwithstanding that the two sentences had been ordered to be served concurrently. However, that situation might be thought to be distinguishable from one in which there is separate harm to each of two victims brought about by the same criminal conduct to which each was subjected. Whatever may be the position in that respect, the approach that I consider to be preferable seems to me to be open on the later High Court authority of Johnson, in which there were two drug offences involving a number of common elements. In that case, the court considered that the commonality required that 'careful regard be had … to the totality principle' [33].
(Page 6)
8 The approach of imposing partially concurrent sentences has been applied in a number of cases, decided since Pearce, involving one instance of dangerous driving that causes death or grievous bodily harm to multiple victims: see, for example, R v Plumb [2003] NSWCCA 359 (citing a number of other like cases in which concurrent, or partly concurrent sentences were imposed); R v Skrill [2002] NSWCCA 484; (2002) 38 MVR 175; R v Price [2004] NSWCCA 186; R v Janceski [2005] NSWCCA 288; (2005) 44 MVR 328; R v Guariglia [2001] VSCA 27; (2001) 33 MVR 543; Director of Public Prosecutions (Vic) v Solomon [2002] VSCA 106; (2002) 36 MVR 425; (and see also K Warner, 'Sentencing Review 2003 - 2004: Part II' (2005) 29 Crim LJ 46, 53 - 54).
9 However, there is no inflexible rule requiring an order for partial concurrency in a case of the present kind and nor is there anything in either of the majority judgments in Eves that suggests otherwise. In Johnson [26], Gummow, Callinan and Heydon JJ said, of the totality principle:
The joint judgment in Mill [v The Queen (1988) 166 CLR 59] expresses a preference for what should be regarded as the orthodox, but not necessarily immutable, practice of fixing a sentence for each offence and aggregating them before taking the next step of determining concurrency. Pearce does not decree that a sentencing judge may never lower each sentence and then aggregate them for determining the time to be served. To do that, is not to do what the joint judgment in Pearce holds to be undesirable, that is, to have regard only to the total effective sentence to be imposed on an offender. The preferable course will usually be the one which both cases commend but neither absolutely commands. Judges of first instance should be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime under which the sentencing is effected.
10 Although the sentencing judge in the present case did not say (as, with respect, it would have been preferable for him to do) that he had reduced each sentence in order to take into account elements that were common to both offences, it seems to me that that is what he did. It is difficult, otherwise, to understand why the individual sentences should have been as low as they were. Notwithstanding the youth of the appellant, his offers to plead guilty to the offences of which he was convicted, his remorse and the other matters raised in mitigation, each offence called for a penalty closer to the maximum of 2 years and 8 months' imprisonment then provided by s 59 of the Road Traffic Act 1974 (WA), after allowing for the operation of the transitional provisions enacted by the Sentencing Legislation Amendment and Repeal Act 2003
(Page 7)
- (WA). As I have said, the appellant was driving with a blood/alcohol level well over the prescribed limit (having previously had his licence disqualified for just such an offence) and at an excessive speed notwithstanding that he had twice been asked to slow down.
11 If I am wrong in my understanding of the approach taken by the sentencing judge, that would not lead me to interfere with the sentences imposed. I would have imposed the same aggregate sentence and it is open to the court to structure the individual sentences in the way that the trial judge did. The appeal consequently fails: s 31(4)(a) of the Criminal Appeals Act 2004 (WA).
12 I would dismiss the appeal.
WHEELER JA:
The appeal
13 The sole ground of appeal in this matter reads:
The appellant having been convicted of offences containing common elements (dangerous driving) the orders for total cumulation made by the learned Sentencing Judge will punished [sic] the appellant twice for those common elements and should be set aside and in lieu thereof orders for partial cumulation should be made.
14 The submission in respect of that ground, on behalf of the appellant, is brief. It reads:
The appellant was sentenced on 13 June 2007 on principles as to cumulation then thought to be correct. On 16 January 2008 the Court of Appeal handed down its judgment in Eves [2008] WASCA 7 which held that those principles were in error.
15 There is a short answer to the submission, and a much longer one. Both, in my view, lead to the conclusion that the appeal must fail. I deal first with the short answer.
Sentence imposed was appropriate
16 Whatever Eves v The State of Western Australia [2008] WASCA 7; (2008) 49 MVR 259 may or may not suggest about the preferable approach to sentencing in cases of this kind, it is clear that it did not hold that it was not open to a sentencing judge to lower what would otherwise have been appropriate sentences and then aggregate them, for the purpose of determining the time to be served: Eves [27] (McLure JA, Steytler P agreeing [5], citing Johnson v The Queen [2004] HCA 15; (2004) 78
(Page 8)
- ALJR 616 [26]). In the present case, the remarks of the learned sentencing judge included the following matters, in this order:
• This was a serious case of dangerous driving causing death, and not a matter of momentary inattention or misjudgment.
• The transitional provisions were applicable. The sentence to be imposed on each count was 1 year and 8 months following the reduction required by those provisions.
• His Honour had regard to the fact that the driving that constituted the criminal conduct was the same in each case. He also had regard to the fact that the driving led to the death of two people.
• The Court of Appeal has held that, where one act of driving causes more than one death, it does not automatically follow that the sentences should be concurrent. It was necessary to ensure that the total sentence reflected the offending behaviour and was proportionate to the degree of criminality.
• It was necessary to ensure that the penalty recognised the actual consequences of the appellant's conduct.
• The "overriding principle" was that the aggregate sentence should fairly and justly reflect the total criminality.
• Each sentence should be served cumulatively, making a total sentence of 3 years and 4 months' imprisonment.
17 The order of his Honour's remarks tends to suggest that he had imposed, in relation to each count, a sentence which fully addressed both the manner of the appellant's driving and the consequence, which was the particular death the subject of that count. However, I agree with Steytler P that the individual sentences announced by his Honour were so low, that his Honour must have reduced the sentences which he announced in order to take into account factors common to both offences. If that is so, then it would appear that his Honour's sentencing remarks did not reflect the order in which he actually approached the task of fixing the appropriate sentences.
18 Alternatively, even if his Honour approached his task incorrectly, the result at which he arrived was a sentence which was proportionate to the overall criminality of the appellant's conduct. Were I to allow the appeal and resentence the appellant, it would be open to me to structure the sentences in the way in which his Honour did, in order to arrive at the identical result, which result is, as I have noted, an appropriate one. I would therefore not allow the appeal.
(Page 9)
The decision in Eves
19 The longer answer to the ground of appeal involves an examination of the way in which sentences should be structured in cases of dangerous driving resulting in multiple deaths or in multiple injuries. In Eves, McLure JA and Steytler P both expressed the view that it is unsound in principle to sentence in respect of each element of the offence on each count of dangerous driving causing death and then wholly cumulate the sentences so imposed. That was because that course was said to result in multiple punishment for the common element of each offence, being that of dangerous driving.
20 In addition to indicating the approach which her Honour regarded as wrong, McLure JA expressed the view that the application of the "orthodox Pearce approach" (Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610) in that case, which involved three counts, would be as follows:
The sentence on count 1 should punish for both elements of the offence, being dangerous driving and the death of the victim the subject of that count (which on the sentencing judge's opinion should be 1 year and 8 months' imprisonment). In respect of counts 2 and 3 there should be no further punishment for the same act of dangerous driving but there should be punishment for the separate unpunished elements, being the death of the victims specified in those counts. Thus, the sentences on counts 2 and 3 would be less than the sentence on count 1. Further, those sentences would, subject to the application of the totality principle, be made wholly cumulative. [28]
21 In resentencing the appellant in that case, McLure JA did not, however, apply what her Honour had described as the orthodox Pearce approach, but ordered instead partial concurrency of the sentences which had been imposed by the sentencing judge in that case. That was consistent with what her Honour had described at [29] of her reasons as the "slightly different" approach adopted by the courts of New South Wales and Victoria in cases of this kind.
22 As Steytler P noted in Eves, the approach preferred by McLure JA, and which his Honour also preferred, is not consistent with that which had previously been adopted in Western Australia. In particular, it would appear to be inconsistent with both the reasoning and the result in Kay v The Queen [2004] WASCA 222; (2004) 147 A Crim R 401. A practice in this State has generally been that if there are conflicting decisions of the court, or if it is sought to persuade the court to depart from an earlier decision, that a bench of more than three judges will be convened in order
(Page 10)
- to deal with the question. Even in those cases, the court comprised of a larger number will not lightly depart from an earlier decision: Re Warden Calder; Ex parte Cable Sands (WA) Pty Ltd (1998) 20 WAR 343, 354.
23 The present position, of apparently conflicting decisions of this court, is unsatisfactory. If the views expressed in Eves are those dictated by authority, that decision should be followed. For that reason it seems to me desirable to consider afresh the question of what, if anything, Pearce says about cases of this kind in Western Australia.
The decision in Pearce
24 In Pearce, the appellant had been charged with inflicting grievous bodily harm with intent to cause grievous bodily harm, and with breaking and entering a dwelling and inflicting grievous bodily harm therein. Each offence carried a maximum penalty of 25 years' imprisonment. The grievous bodily harm in each case involved one beating of the same victim into whose home the appellant had broken, causing that victim life-threatening injuries. The appellant had sought a stay of proceedings on the basis that the indictment was oppressive or an abuse of process, or both, submitting that he was thereby placed in double jeopardy. That application was refused, he pleaded guilty, and he was sentenced to two 12-year terms of imprisonment, which were made concurrent. On his appeal, the appellant argued that the convictions on each charge resulted in double punishment and that the rule against double jeopardy extended to prevent such punishment. Alternatively, it was submitted that the court had a discretion to stay, as an abuse of process, an indictment which charged an offence the "gist" of which was an act or omission for which the offender had already been punished. Alternatively, it was submitted that, in any case, an offender should not be punished twice for the same facts.
25 There was in New South Wales, the State in which the offences arose, no legislation dealing directly with the questions arising in the appeal. Section 57 of the Interpretation Act1987 (NSW) dealt only with the situation of overlapping State, Territory or Federal legislation. It was necessary, therefore, for the High Court to consider the position at common law. It was held that a plea in bar was not available where the subsequent offence contained elements not included in the first offence, and that the prosecution of multiple charges, where the charges contained different elements and one charge is not wholly included in another, did not constitute an abuse of process.
(Page 11)
26 However, in relation to the sentencing of the appellant, McHugh, Hayne and Callinan JJ, with whom Gummow J agreed, made a number of observations. Their Honours noted first that, in creating offences, legislatures must necessarily proscribe conduct by reference to particular elements, and that a complex act by an accused may contain all the elements of more than one offence ([36]). Second, it was observed that, in order to punish the whole of an accused's conduct, there would be cases in which more than one offence must be charged and punishment exacted for each. It was noted, thirdly, that legislatures had sought to address some of the questions that arose in relation to double punishment ([37] and [38]). Their Honours said that "fourthly, and very importantly, it is highly undesirable that the process of sentencing should become any more technical than it is already", adding that "excessive subtleties and refinements" must be avoided ([39]). Their Honours then, however, said the following:
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. [40]
...
It is clear in this case that a single act (the appellant's inflicting grievous bodily harm on his victim) was an element of each of the offences ... The identification of a single act as common to two offences may not always be as straightforward. It should, however, be emphasised that the inquiry is not to be attended by 'excessive subtleties and refinements'. It should be approached as a matter of common sense, not as a matter of semantics.
The trial judge sentenced the appellant to identical terms of imprisonment on counts 9 and 10 and made those sentences wholly concurrent. We can only conclude that the sentence on each of those counts contained a portion which was to punish the appellant for his inflicting grievous bodily harm on his victim. Prima facie, then, he was doubly punished for the one act.
Does that matter if, as was the case here, an order was made that the sentences be served concurrently?
(Page 12)
- To an offender, the only relevant question may be 'how long', and that may suggest that a sentencing judge or appellate court should have regard only to the total effective sentence that is to be or has been imposed on the offender. Such an approach is likely to mask error. A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well, of course, as questions of totality. [42] - [45]
...
Looked at overall, it may well be said that the effect of the sentences imposed on this appellant was not disproportionate to the criminality of his conduct. Nevertheless, we consider that the individual sentences imposed on counts 9 and 10 were flawed because they doubly punished the appellant for a single act, namely, the infliction of grievous bodily harm. Further, to make the sentences imposed on those two counts wholly concurrent may also be said to reveal error in that to do so failed to take account of the differences in the conduct which were the subject of punishment on each count. [49]
The "four-step" Pearce approach
27 Prima facie, the steps which Pearce requires, in cases where a single act can be identified as common to two offences, are as follows:
(i) Consider the offences of which the offender has been convicted, and dissect out from them any elements or conduct which may be common to more than one of the offences;
(ii) where conduct is common to more than one offence, take that conduct into account in determining the appropriate sentence in respect only of one of such offences, fixing the sentence accordingly. For the other offences, fix a sentence proportionate only to the criminality revealed by those elements which are not common;
(iii) consider questions of cumulation and concurrency; and
(iv) consider questions of totality.
28 As I understand it, the steps I have identified above are consistent with the reasons of Steytler P and McLure JA in Eves [28]. It may be that steps (iii) and (iv) are, or can be, performed concurrently; that does not matter for present purposes.
29 Importantly, if Pearce requires steps (i) and (ii) to be taken, it seems to me that the "slightly different" approach taken in New South Wales and Victoria, identified by McLure JA at [29] of Eves, and followed by the court in that case, is not open; indeed, it would be an approach which
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- Pearce forbids. Such an approach impermissibly punishes in respect of common elements, even though the answer to the question "how long", in relation to the total time to be actually served, is appropriate.
Does the "four-step" approach apply?
30 In my view, the "orthodox Pearce approach" identified by McLure JA at [27] of Eves, is not required to be followed in this case. That is either because it is inconsistent with the principles set out in the Sentencing Act 1995 (WA) or, alternatively, because it is applicable only to cases involving offences which have overlapping elements, rather than to offences arising from one act which causes harm to multiple persons.
31 The appropriate way of structuring a sentence in a case of this kind is to fix a sentence appropriate to the criminality of all of the conduct involved in each individual count, considered separately, and then, by making orders for cumulation and concurrency, arrive at an effective total sentence which reflects the overall criminality of the offending behaviour. That approach will generally result in sentences which are only partially concurrent. However, because the legislature in cases of this kind plainly regards the fact of death as significantly increasing culpability, it is possible to envisage cases in which a judge sentencing in respect of multiple deaths might make two or more sentences wholly cumulative. It is also possible to envisage cases in which, for totality reasons or for reasons personal to the offender, two or more such sentences are made wholly concurrent. Finally, of course, a judge may arrive at an appropriate overall sentence by artificially lowering one or more sentences, and making each cumulative (as, in my view, his Honour did here).
32 My reasons for the views summarised above are as follows.
The Sentencing Act 1995
33 Pearce was a decision which concerned the common law. In Western Australia, however, s 16 and s 17 of the Criminal Code formerly sought to deal, at least to some extent, with issues of "double jeopardy" and double punishment. Presently, the Sentencing Act1995 (WA), while plainly not a code, deals in some detail with proper sentencing principles. It includes a section which is similar to, although not identical with, the former s 16 of the Criminal Code. I am inclined to the view that the framework of the Sentencing Act1995 does not readily lend itself to the four-step process which I have outlined above.
(Page 14)
34 In suggesting that the Sentencing Act1995 may not be consistent with the four-step process I have outlined above, I do not mean to suggest that the Sentencing Act1995 excludes, either expressly or impliedly, the principle that a person should not be twice punished for the same conduct. However, the word "punished" is one of variable meaning. In some contexts, the fact of conviction itself is a "punishment": see R v Sessions [1998] 2 VR 304; (1997) 95 A Crim R 151, 160 (Hayne JA), Scott v The Queen (Unreported, WASCA, Library No 990004, 15 January 1999) at 6 per Anderson J. Plainly, the High Court did not use the term "punishment" in this sense in Pearce. Nor, it seems to me, did that court mean by "punishment" simply the imposition of a sentence. That is because a sentence, like a conviction, may be pronounced only if all elements of an offence are proved or admitted, and the conviction and sentence must both (at least formally) apply in respect of all elements.
35 An alternative understanding of "punishment" might be in the more practical and colloquial sense of subjecting a person to "retributive or disciplinary suffering" (Shorter Oxford Dictionary). This understanding has two possible aspects in relation to the imposition of sentences for multiple offences. The two aspects are encapsulated in the distinction drawn by the Macquarie Dictionary definition of punishment, between meaning (1) "the act of punishing" and meaning (2) "the fact of being punished".
36 In Pearce, it would appear that the High Court, adopting meaning (1), was concerned with the length of the sentence imposed in respect of each offence (prior to considerations of cumulation or concurrency). In that sense, an offender is "punished" for an offence by being made liable to serve a sentence of a particular length, notwithstanding that, by reason of other orders which may be made, the sentence might have no, or limited, effect.
37 The other aspect of the possible practical or colloquial understanding of "punishment" is one which emphasises the element of "suffering" in the definition, by considering an offender to be punished in a practical sense only in relation to that portion of a sentence which that punishment requires him to serve, in addition to other punishments which may be exacted at the same time. In that sense, an offender would be subject to "double" punishment only if actually required to serve an additional term of imprisonment, or pay an additional fine, or otherwise be the subject of an order which has some practical, additional, effect upon him. The "punishment" in this sense is the sentence described as the "aggregate" in the Crimes Act 1914 (Cth) s 16, and often described in this State as the
(Page 15)
- "effective sentence". Notwithstanding that this was, clearly, not the understanding adopted by the High Court in Pearce, it appears to me to be the sense in which, consistently with the Sentencing Act1995, this court should be concerned to avoid double punishment.
38 The relevant provisions of the Sentencing Act1995 appear to be these. Section 3 provides that the Act applies to all persons convicted of an offence. Section 6 sets out the principles of sentencing which are, relevantly, these:
6. Principles of sentencing
(1) A sentence imposed on an offender must be commensurate with the seriousness of the offence.
(2) The seriousness of an offence must be determined by taking into account -
(a) the statutory penalty for the offence;
(b) the circumstances of the commission of the offence, including the vulnerability of any victim of the offence;
(c) any aggravating factors; and
(d) any mitigating factors.
(3) Subsection (1) does not prevent the reduction of a sentence because of -
(a) any mitigating factors; or
(b) any rule of law as to the totality of sentences.
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- 11. Person not to be sentenced twice on same evidence
(1) If the evidence necessary to establish the commission by a person of an offence under the law of this State is also the evidence necessary to establish the commission by that person of another such offence, the person may be charged and convicted of each offence but is not to be sentenced for more than one of the offences.
(2) 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 an offence under the law of the Commonwealth, a Territory or another State, and the person has been sentenced for the offence under the law of that other place, the person is not to be sentenced for the offence under the law of this State.
(3) Despite subsections (1) and (2), if an act or omission of an offender causes the death of another, the offender may be sentenced for the offence of which he or she is guilty by reason of causing the death despite the fact that he or she has already been sentenced for some other offence constituted by that act or omission.
(4) Nothing in this section affects the operation of section 17 of The Criminal Code.
41 I note in this context that it is not suggested that s 11 is applicable in the present case. Phillips v Carbone (No 2) dealt with the application of the former s 16 of the Code to what was then the offence of dangerous driving causing bodily harm, and it was held that that section did not prevent a person from being punished in relation to separate counts of dangerous driving causing bodily harm where the dangerous driving of a motor vehicle simultaneously injures two other persons. The former s 16 is somewhat different in its wording from s 11 of the Sentencing Act1995,
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- and the wording of the present offence of dangerous driving causing death or grievous bodily harm is somewhat different from the former offence of dangerous driving causing bodily harm, but it is not suggested that the alterations are such as to render that decision inapplicable. If s 11 had been applicable, of course, the appellant would not be able to be sentenced at all for more than one offence of dangerous driving causing death.
42 Section 39 of the Sentencing Act1995 is contained in Part 5, "Sentencing options". It provides that when sentencing an offender who is a natural person, the court may impose any of the orders set out in s 39(2)(a) to (h) inclusive. Subject only to the exception apparently established by s 11, "may" in that section apparently means "must". That is because the first of the "options", contained in par 39(2)(a), allows the court to impose no sentence, but Part 6, to which reference is made in that paragraph, only permits a court to impose no sentence in defined circumstances. It seems to me to follow that (leaving s 11 aside) a court can only impose no sentence when the conditions set out in Part 6 are satisfied, and otherwise must proceed to sentence an offender who is convicted of an offence.
43 A variety of sections are relevant to cumulation and concurrency. Although they do not expressly prohibit cumulation, it is plain from s 48, s 62 and s 69 that conditional release orders, community based orders, and intensive supervision orders, can only be imposed concurrently. That is because each of those sections provides that the relevant order commences on the day on which it is imposed. In relation to fines, there is no provision, strictly speaking, dealing with cumulation or concurrency. However, s 54 permits a single fine to be imposed for multiple offences, in some circumstances. That would appear to permit a sentencing court to tailor the overall fine so that it is proportionate to the criminality involved in a series of offences, and is not "crushing", although the ability to do so is limited by the requirement that the offences must either be founded on the same facts, or form or be part of a series of offences of the same or a similar kind.
44 Finally, in relation to imprisonment, s 88 deals with concurrency and cumulation of sentence. Sections 88(1) and (2) provide that sentences are to be served concurrently unless the court otherwise orders, while (3) allows a court sentencing an offender to a fixed term (that is, any term that is not a life term) to order one fixed term to be served either cumulatively on, or partly concurrently with, the other fixed term. The provisions relating to cumulation and concurrency of sentences are such that it does
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- not appear to be necessary to consider questions of cumulation and concurrency separately from, or in addition to, questions of totality. The High Court, in Pearce, noted that questions of cumulation and concurrence may well be affected by particular statutory rules, and noted some of the relevant provisions in other States ([47]). However, there are in Western Australia no such particular rules. Rather, there is only a discretion, in relation to imprisonment, arising from s 88. Cumulation and concurrency are, therefore, no more than tools to ensure that the "totality" of the sentence is appropriate, rather than being the subject of independent sentencing principles or rules of their own.
45 It appears to me that the principles enunciated in s 6 require the court, in fixing an appropriate sentence, to have regard to all elements of the offence which were required to be proved in order to establish the commission of that offence. That would preclude the court from dissecting out some elements of the offence and sentencing only in relation to those which remain, for the purpose of avoiding "double punishment".
46 There are a number of aspects of s 6 which lead me to that view. The first is the simple proposition that a sentence imposed must be commensurate with the seriousness of "the offence". It would be a very awkward reading of that principle, to read it as requiring a sentence to be commensurate with the seriousness of those aspects or elements of an offence which are not already the subject of punishment because of conviction and sentence for other offences.
47 The principle that the seriousness of an offence must be determined by taking into account the statutory penalty for the offence (s 6(2)(a)), in my view, supports that understanding of s 6(1). In the present case, for example, the statutory penalty for the offence of dangerous driving causing death was, at the time at which the offences were committed, 4 years' imprisonment (assuming the offence to have been the subject of an indictment and not having been committed in circumstances of aggravation). If one were to take the approach suggested in Eves, and to punish in relation to one count in respect of both the driving and the death, and in relation to the other count in respect of the death only, one immediately encounters the difficulty that there is no statutory penalty provided for a "death" in isolation from the circumstances in which the death is caused. Section 6(2)(b) gives rise to a similar problem in referring to the element of "death" in isolation, since it provides that the seriousness of an offence is determined by taking into account the
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- circumstances of its commission. The "circumstance" of most immediate relevance in such a case is the manner of driving.
48 It might be arguable that s 6(3)(a) would permit the court to take into account as a "mitigating factor" the fact that an offender had already been sentenced in respect of an offence which contained elements in common with the offence for which the offender was then being sentenced. However, such an understanding would sit oddly with the approach taken by the High Court in Pearce; it seems to me that the discussion in that case starts from the proposition that the avoidance of "double punishment" is a principle separate and different from the principles concerning mitigation of sentence.
49 Plainly, however, s 6(3)(b) would permit a court which has fixed sentences commensurate with the seriousness of each individual offence, to then reduce one or more of the sentences imposed, or to make one or more of the sentences imposed concurrent or partly concurrent with others, for reasons of "totality". "Totality" is not defined in the Sentencing Act1995. There are probably a number of aspects of the "totality" principle. However, the overriding consideration, and the one which is relevant for present purposes, is that where a court sentences an offender in relation to more than one offence, or where a court comes to sentence an offender who is already serving a term of imprisonment in respect of other offences, it is necessary for the court to ensure that the total effective sentence imposed is proportionate to the overall criminality of the offending: Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59 at 62 - 63. That would require the court, where appropriate, to consider the extent to which aspects of the offender's conduct had already been punished by the imposition of other sentences.
One act, two harms
50 If the statutory analysis I have undertaken is incorrect, and what I have called steps (i) and (ii) deriving from Pearce are required of sentencing judges in Western Australia, a question then arises concerning the types of offences in respect of which those principles apply. No argument was addressed to us in this case, and none seems to have been directed to the court in Eves, concerning the question of whether there is a distinction which should be recognised between offences with overlapping elements, and offences causing harm to more than one person. In Phillips v Carbone (No 2) at 190, explaining his reasons for holding s 16 of the Code inapplicable in such a case, Ipp J said the following:
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- In my view, s 16 is intended to provide protection to a person who is found guilty of one offence and is then 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. If the phrase 'act or omission' is to be construed as meaning the essential elements of each offence, protection may be afforded to the perpetrators of such crimes. That, in my opinion, cannot be the law. There is a fundamental distinction between a single act that contravenes more than one statutory provision, and a single act that harms more than one person: see Neal v State 357 P.2d 839 (1960 California); Wimberley v State 698 P.2d 27 (1985 Oklahoma).
51 Ipp J was there referring to authority in the State courts of the United States, which holds that the constitutional protection against double jeopardy, which prohibits both multiple prosecutions and multiple punishments, is not violated by the prosecution and punishment, in respect of more than one count, of an offender who, by driving in a dangerous manner, kills or injures more than one person. References to a number of the cases reaching that conclusion over a 20-year period are collected in State of Alaska v Dunlop 721 P.2d 604 (1986). The reason for that result is expressed in Neal v State 357 P.2d 839 (1960 California) (a case concerning the attempted burning to death of two people by throwing petrol into their bedroom and igniting it), in the following way:
The purpose of the protection against multiple punishment is to insure that the defendant's punishment will be commensurate with his criminal liability. A defendant who commits an act of violence with the intent to harm more than one person or by a means likely to cause harm to several persons is more culpable than a defendant who harms only one person.
For example, a defendant who chooses a means of murder that places a plane load of passengers in danger, or results in injury to many persons, is properly subject to greater punishment than a defendant who chooses a means that harms only a single person. This distinction between an act of violence against a person that violates more than one statute and such an act that harms more than one person is well settled. [15] - [16]
52 Similar reasoning seems to have been employed in R v Cameron [2005] NSWCCA 359; (2005) 157 A Crim R 70. That was a Crown appeal against the alleged inadequacy of sentence in relation to three counts of manslaughter and one count of aggravated driving in a manner dangerous causing grievous bodily harm, arising out of a single motor vehicle accident in which the respondent had driven into a telegraph pole while carrying a number of passengers. At [19], Grove J, with whom McClellan CJ at CL and Hislop J agreed said:
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- It was erroneous to approach the sentence on the basis, as his Honour apparently did, that what was involved was an offence (putting to one side at the moment the offence which did not result in fatality) which resulted in the death of three people. Each of these offences resulted in a death. There were no reasons justifying a departure from the procedure specified in Pearce v R (1998) 194 CLR 610:
'A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well, of course, as questions of totality.'
Johnson v The Queen
54 Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616 is a case which, it appears to me, supports either the understanding of the Sentencing Act 1995 which I have outlined above or, alternatively, the proposition that one act involving two or more harms is different, for sentencing purposes, from two offences with overlapping elements. That case involved two offences in connection with the importation of drugs. The first was an attempt to obtain possession of a quantity of ecstasy, and the second was an attempt to obtain possession of a quantity of cocaine. The circumstances of the offences involved the appellant in accepting a single sum of $2,000 to collect a package, and taking possession on one occasion of a single package. The package, in fact, contained the two drugs referred to. It was plain that the appellant understood that he would be taking possession of drugs of some kind, but was not specifically aware
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- of the quantity or type of drug; rather, he was prepared to take possession of whatever parcel was delivered to him. Cumulative sentences were imposed, although that in relation to the ecstasy was longer than the sentence in relation to the cocaine, presumably because the ecstasy was not less than a commercial quantity, whereas the cocaine was not less than a trafficable quantity. The Court of Criminal Appeal dismissed an appeal in which the appellant had asserted that the sentencing judge had erred in failing to direct that the sentences be served wholly or partially concurrently and had erred in the application of the totality principle.
55 The High Court held that the Court of Criminal Appeal had erred in its understanding and application of Pearce. In identifying those errors, Gummow, Callinan and Hayden JJ, with whom Gleeson CJ agreed, said:
It is true that the appellant pleaded guilty to two offences, but they had much in common: one inducement, one payment for performance, one occasion, one package and one receipt of it by the appellant. This commonality did require that careful regard be had, in deciding the appellant's appeal, to the totality principle. The error in relation to the number of packages and the failure to refer to the numerous common elements strongly suggests that this did not occur. [33]
56 What is noteworthy about that passage is the clear indication that the common elements of the two offences should be taken into account when the court came to apply the totality principle (cf Pearce [42] - [45]). It was not suggested that the commonality of the factual aspects of the two offences required that a court should sentence in respect of one and then, turning to the other, ignore all those common elements so as to sentence, in effect, for the mere possession of the second drug in a factual vacuum. It is not clear whether that view resulted from the nature of the statutory regime of the Crimes Act 1919 (Cth), which has some similarities with the Sentencing Act 1995, or whether it stemmed from the fact that there was at one time possession of two types of drug, which may be considered analogous to the single incident which gives rise to multiple harms.
Totality and dangerous driving causing death
57 As I have noted, where a court sentences an offender for two or more offences of dangerous driving causing death, there are two steps. First, the court should fix an appropriate sentence in relation to each offence, having regard to all of the conduct comprised in that offence and to all relevant aggravating and mitigating factors. Having done so, the court should then consider what degree of cumulation or concurrency is necessary (including, if necessary, to what degree any of the sentences so
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- fixed should be reduced) in order to arrive at a total effective sentence proportionate to the criminality of the offender.
58 Where there are multiple offences of dangerous driving causing death or grievous bodily harm arising from one course of driving, the court in considering the totality question must take account of two important considerations. One is that there has been only one act, or one incident. The second is, however, that there has been more than one death or injury, and that the fact of death or injury is considered by the legislature to be a matter of great significance in fixing the appropriate penalty.
59 The importance attached to the fact of death emerges from a comparison of the penalties fixed for dangerous driving in circumstances where death or injury does not result (at the time of this offence, a fine only for a first offender), the penalty fixed where the driving is wilfully dangerous, but no death results, (being at the time of this offence, no more than 9 months' imprisonment for a first offender) and the penalty fixed where death or grievous bodily harm results from dangerous driving (being at the time of this offence, 18 months on summary conviction, 4 years on indictment, and 20 years where there is both a death and a circumstance of aggravation). Although the offender's manner of driving is of significance in fixing an appropriate sentence, then, the legislative indication is that the consequences of the driving are of very great importance, and so, in cases where more than one person is killed or injured, a very significant degree of accumulation may often be appropriate.
60 In practical terms, there are substantial similarities between the approach I prefer and that identified as an available alternative in Eves (at [29]). It may well be right to say, as a broad proposition, that it will rarely be appropriate for wholly cumulative sentences to be imposed in respect of one incident of dangerous driving resulting in more than one death, assuming that the sentences which are accumulated are themselves proportionate to the conduct the subject of each offence. However, having regard to the weight apparently placed by the legislature on the consequences, rather than on the conduct, I would not be prepared to hold that, as a matter of totality, a case of wilfully dangerous driving resulting in more than one death could not be marked by sentences which are fixed, independently, as appropriate to the seriousness of each offence, and then made wholly cumulative.
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Conclusion
61 In the present case, the sentences fixed by the learned sentencing judge were low, considered in relation to each offence individually. There were two, plainly foreseeable, deaths, arising from a course of dangerous driving of a serious kind. The total effective sentence is, in my view, not disproportionate to the overall criminality of the appellant's conduct and its consequences. I would dismiss the appeal.
62 MILLER JA: The appellant was charged on indictment with two counts of manslaughter. The offences arose out of a motor vehicle accident that occurred in Esperance on 11 November 2005. The indictment alleged the following offences:
(1) On 11 November 2005 at Esperance Steve Russel [sic] Longbottom unlawfully killed Jamie Lee Willumsen.
(2) On 12 November 2005 at Perth Steve Russel [sic] Longbottom unlawfully killed Michael Adam Pansini.
63 The appellant was tried before judge and jury. He was acquitted by the jury on each count of manslaughter, but convicted of the alternative offence of dangerous driving causing death (Road Traffic Act 1974 (WA) s 59). The maximum penalty applicable for the offence of dangerous driving causing death was at the relevant time 4 years' imprisonment. (By the Road Traffic Amendment Act (No 2) 2007 (WA) s 22, the maximum sentence was increased to 10 years' imprisonment.)
64 The sentencing judge sentenced the appellant on 13 June 2007 to imprisonment for 1 year 8 months on each count. These sentences were ordered to be served cumulatively, making an aggregate sentence of 3 years 4 months.
Appeal
65 On 11 April 2008, the appellant was granted leave to appeal on a single ground. It is:
The appellant having been convicted of offences containing common elements (dangerous driving) the orders for total cumulation made by the learned Sentencing Judge will punished [sic] the appellant twice for those common elements and should be set aside and in lieu thereof orders for partial cumulation should be made.
66 The appellant's case which was filed pursuant to the Supreme Court (Court of Appeal) Rules 2005 (WA) r 32 is in very cryptic terms:
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- The appellant was sentenced on 13 June 2007 on principles as to cumulation then thought to be correct. On 16 January 2008 the Court of Appeal handed don [sic] its judgment in Eves [2008] WASCA 7 which held that those principles were in error.
The facts
67 It is first necessary to detail the facts relevant to the offences. They appear from the sentencing remarks of the sentencing judge and they are uncontroversial.
68 In November 2005, the appellant was a receival point operator for CBH in Esperance. In the evening and night of 10 November 2005 the appellant went to the home of Michael Adam Pansini (the second deceased) and to licensed premises known as Chesters Tavern and the Pier Hotel. The appellant left the hotel after it closed at 1.00 am on Friday, 11 November. He had consumed alcohol during the course of the night.
69 The appellant drove his motor vehicle from the hotel. He was accompanied by Ashleigh Turner who was a passenger in the front seat, Jamie Lee Willumsen (the first deceased) and the second deceased who were passengers in the rear seat.
70 The direction of travel of the appellant's vehicle was towards the home of the second deceased in Esperance. During the course of the journey Ms Turner told the appellant to slow down but he did not do so. She tapped him on the arm and told him a second time to slow down but he did not. She then said she wanted to get out of the vehicle but the appellant did not slow the vehicle or stop it to enable her to do so.
71 Joanne Bailey was driving her vehicle behind the appellant on Phillips Street, Esperance. She estimated the speed of the appellant's vehicle at 80 km per hour. The appellant was travelling at a faster speed than was Ms Bailey. The speed limit on Phillips Street was 50 km per hour.
72 The appellant lost control of his vehicle on Phillips Street. It went on to the gravel verge of the roadway, travelled across John Street and crashed into the house in which the second deceased lived. In consequence of the crash, the first deceased died at the scene from injuries he received and the second deceased died in hospital the following day from injuries he received.
73 The blood alcohol level of the appellant at the time of the collision was 0.089%.
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Sentencing comments
74 The sentencing judge first made reference to the facts of the case. He found that whilst driving on Phillips Street, the appellant was exceeding the speed limit of 50 km per hour. As the jury had found the appellant not guilty of the circumstance of aggravation of driving at more than 45 km per hour above the speed limit (Road Traffic Act s 59B(3)), the sentencing judge concluded that the appellant was driving in excess of 50 km per hour but less than 90 km per hour. He was unable to be precise as to what the speed was, but found that it was excessive in the circumstances and that the appellant had ignored the request of Ms Turner to slow down.
75 The sentencing judge said in relation to the consequences of the collision:
Jamie Willumsen and Michael Pansini were healthy, active young members of the community who were loved by their family and friends. Your dangerous driving has cost them their lives. It has had traumatic impacts upon the lives of those who loved them particularly the members of their families who have suffered and continue to suffer grief sorrow and loss.
76 The sentencing judge turned to matters personal to the appellant. He was born in August 1986 and was 19 years of age at the time of the commission of the offences. He had offered at an early stage to plead guilty to the offences of dangerous driving causing death and at all times throughout the trial he accepted that he was guilty of those offences. The sentencing judge said:
You have therefore from an early stage indicated a willingness to facilitate the course of justice and accept responsibility for your behaviour.
77 His Honour added:
You are remorseful for what you have done. You did not intend to cause the death of your passengers. You have suffered grief as a result of the loss of your young friends. You are a young man who has many good qualities. Apart from one conviction for driving with a blood alcohol content in excess of .08 but less than .11 per cent you have no prior convictions. Members of the community, particularly the Esperance community, have written references for you. They speak of your politeness, friendliness, respectfulness and leadership skills.
You are an intelligent young man and it is likely that in the future you will be a valuable member of the community.
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78 At the time of the collision, the appellant did not hold a valid motor vehicle driver's licence. He had, on 11 August 2005, been disqualified from holding a licence for four months. This was in consequence of a conviction for driving with a blood alcohol content in excess of 0.08%.
79 The sentencing judge found that with the blood alcohol content of 0.089% which the appellant had at the time of the collision, his risk of causing an accident was increased by approximately five times.
80 The sentencing judge took account of the need for both personal and general deterrence and observed that dangerous driving causes 'dreadful trauma and loss on our roads'. He concluded that the accident was not a cause of momentary inattention or misjudgment, but was rather a selfish disregard for the safety of the appellant's passengers.
81 The sentencing judge then imposed sentences of 1 year 8 months' imprisonment in relation to each count. These were sentences which took account of the transitional provisions. His Honour then said:
In considering whether those terms should be concurrent or cumulative or partly so, I have had regard to the fact that the driving that constituted the criminal conduct was the same in each case. I have also had regard to the fact that the driving led to the death of two young people.
…
It is necessary to ensure that the total sentence reflects your offending behaviour, is proportionate to the degree of criminality involved and is also not crushing, having regard to your good prospects of rehabilitation.
It is also necessary to ensure that the penalty recognises the actual consequences of your conduct. The overriding principle is that the aggregate sentence should fairly and justly reflect the total criminality of your conduct. I have decided that each sentence should be served cumulatively. That makes a total sentence of three years and four months, which equates to a sentence of five years' imprisonment under the sentencing legislation that existed prior to 2003.
Ground of appeal
82 The sole ground of appeal is that by ordering total cumulation of the sentences, the sentencing judge punished the appellant twice for offences which contained common elements. It is contended that the sentences should therefore be set aside and in lieu thereof orders for partial cumulation should be made.
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83 This submission is reliant upon the decision of the majority of the Court of Appeal in Eves v The State of Western Australia [2008] WASCA 7; (2008) 49 MVR 259. That case is said to be authority for the proposition that it is an error for a trial judge to punish an offender twice for the commission of common elements in a case involving multiple fatalities arising out of the one motor vehicle accident.
84 The submission overlooks the decision of the Court of Appeal in Taylor v The State of Western Australia [2007] WASCA 218; (2007) 177 A Crim R 81 where Miller JA (Owen & Wheeler JJA concurring) adopted what had previously been said in Kay v The Queen [2004] WASCA 222; (2004) 147 A Crim R 401 about the appropriateness of cumulation of sentences where there were multiple deaths in cases of dangerous driving causing death/dangerous driving causing grievous bodily harm. In those cases, the observations of Lee CJ at CL in Wilkins (1988) 38 A Crim R 445, 449 - 450 were adopted, namely that a penalty which recognises the actual consequences of the offender's action is not unjust or unfair and indeed is wholly in accord with the ordinary principles of justice. His Honour added '[w]here 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' (450).
85 Taylor v The State of Western Australia was a case in which the offender pleaded guilty to five counts of manslaughter arising out of a motor vehicle collision at the junction of Beach Road and Butterworth Avenue, Koondoola. It was a very bad case in which the evidence established that the appellant's vehicle had been travelling at more than 100 km per hour along Butterworth Avenue as it approached the junction with Beach Road. A vehicle which came out of Beach Road was struck by the appellant's vehicle at a speed of not less than 68 km per hour. It was forced 21 metres sideways into the median strip on Beach Road and the whole right-hand side of the vehicle was torn open and the vehicle demolished. All five occupants in the vehicle were killed. The speed limit in the area was 70 km per hour. The appellant had amphetamine, methylamphetamine and cannabis in his blood and he was found by the sentencing judge to have been motivated by the effect of these drugs to drive at a speed and take risks, with a diminished ability to assess risks and make safe judgments in hazardous situations. The appellant was sentenced to 4 years' imprisonment on each count on the indictment. The sentences on two counts were ordered to be served cumulatively, but the others concurrently. This gave an effective sentence of 8 years' imprisonment. Miller JA (Owen and Wheeler JJA concurring) concluded
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- that the cumulation of two terms of 4 years' imprisonment properly reflected the total criminality of the appellant's conduct.
86 In Eves v The State of Western Australia, the appellant was charged with three counts of dangerous driving causing death arising out of a motor vehicle accident on 26 January 2006 on the Old Coast Road near Lake Clifton. The appellant was returning from Bunbury where he had been working during the day. He was driving a Landcruiser which was towing a trailer. He was observed by witnesses to be swerving from side to side on Old Coast Road as he proceeded north along that road. Attempts were made by other motorists to get the appellant to pull over but they were ignored. At a point about 600 metres north of the area where a dual carriageway merged into a single north and south lane on Old Coast Road, there was a collision which involved the appellant's vehicle and trailer and an oncoming Sigma vehicle. The appellant's trailer had moved to a point one metre over the broken white line so that it was obstructing the south-bound lane. The oncoming Sigma vehicle struck the right front of the trailer and the Sigma then rotated in a clock-wise motion across the highway to the wrong side of the road where the left rear passenger side of it collided with the right front of a van being driven north on the Old Coast Road. This caused the Sigma to explode into flames and two persons in it were incinerated. The van caught fire and the driver was trapped in the van. He suffered burns before he was extricated and he died at the scene.
87 The appellant was convicted on each of three counts of dangerous driving causing death. He was sentenced to 1 year 8 months' imprisonment on each count to be served cumulatively, making an aggregate sentence of 5 years' imprisonment.
88 Steytler P and McLure JA allowed an appeal against sentence. Their Honours accepted that a sentence of 1 year 8 months' imprisonment was appropriate on each count, but having regard to what they considered to be the need to avoid multiple punishment for the common element of the offences and the principle of totality, they ordered that the sentence on count 2 should commence 10 months after the commencement of the sentence on count 1 and the sentence on count 3 10 months after the commencement of the sentence on count 2. This resulted in a total effective sentence of 3 years 4 months (see McLure JA [32]).
89 Steytler P considered that the 'common element principle' should be applied to the case. His Honour said:
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- It seems to me that it is as wrong to punish an offender twice for the commission of common elements in a case of this kind as it is in any other kind of case. As McHugh, Hayne and Callinan JJ said in Pearce [40], to punish an offender twice, if conduct falls in an area of overlap, would be to punish the offender according to the accidents of legislative history rather than according to his just deserts. The common element principle has since been affirmed by the High Court in Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616 [27], [34] (Gummow, Callinan & Heydon JJ, with whom Gleeson CJ agreed) and [38] (Kirby J). There is no basis for not applying it in this case. [10]
90 McLure JA said:
The application of the orthodox Pearce approach in this case would be as follows. The sentence on count 1 should punish for both elements of the offence, being dangerous driving and the death of the victim the subject of that count (which on the sentencing judge's opinion should be 1 year and 8 months' imprisonment). In respect of counts 2 and 3 there should be no further punishment for the same act of dangerous driving but there should be punishment for the separate unpunished elements, being the death of the victims specified in those counts. Thus, the sentences on counts 2 and 3 would be less than the sentence on count 1. Further, those sentences would, subject to the application of the totality principle, be made wholly cumulative. Further, as the High Court in Pearce observed, to make the sentences wholly concurrent would be to fail to take into account the differences in the conduct which should be the subject of punishment on each count (again, subject to the totality principle). [28]
91 Her Honour added:
[I]t is unsound in principle to sentence in respect of each element of the offence on each count and then wholly cumulate the sentences so imposed as the sentencing judge did in this case. [30]
92 I dissented, concluding that the appellant's driving was in the most serious category of dangerous driving causing death and said:
[T]he decision in Pearce notwithstanding there is ample authority to support the view that in appropriate cases of dangerous driving causing death where more than one victim has been killed, accumulation, or a degree of accumulation, of sentences will be appropriate. [108]
93 In my judgment, I referred to a number of authorities in other States. They included R v Plumb [2003] NSWCCA 359, R v Skrill [2002] NSWCCA 484; (2002) 38 MVR 175, Kennewell v Rand [2006] ACTCA 10 and R v Penn (1994) 19 MVR 367. Those cases essentially establish that where more than one passenger is killed or injured in a motor vehicle accident by the same act of criminality, any reference to 'a single discrete
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- episode of criminality' is of little assistance, if any. There must be circumstances where concurrent sentences would not be adequate to address the criminality of the offender's behaviour and in such cases the sentences, or part of them, may be accumulated. There is no rule or principle that in cases of that kind the sentences should be concurrent. All of this is consistent with Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610.
94 It seems to me that the real question is whether the total criminality involved in the appellant's conduct required either total or partial cumulation of sentences for the individual counts to reflect that degree of criminality. The respondent contends that the decision of the majority in Eves does not preclude either partial or total cumulation of sentences in these circumstances. It is certainly correct that the majority decision does not preclude partial cumulation, but McLure JA did express the view [30] that it is unsound in principle to wholly cumulate the sentences in those circumstances. Steytler P said that it is wrong to punish an offender twice for the commission of common elements in a case of this kind, but fell short of actually saying that there could be no circumstances in which total cumulation was appropriate.
95 It seems to me that the trend of authority (see the cases to which I have referred above at [93]) is to the effect that there may need to be partial or even total cumulation of sentences in cases of this nature if concurrent sentences would be inadequate to address the criminality of the offender's behaviour. As Wood CJ at CL (with whom Smart AJ agreed) said in R v Plumb:
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. [21]
96 The other State authorities to which I have referred are consistent with the position adopted by the Court of Appeal in Taylor v The State of Western Australia and the Court of Criminal Appeal in Kay v The Queen.
97 In my view, the present case was one in which it was appropriate for the sentencing judge to order cumulation of the sentences imposed on each of the two counts on the indictment. Such cumulation did not, in my opinion, offend the principle in Pearce v The Queen. It reflected the total criminality of the appellant's conduct.
98 I would dismiss the appeal.
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