Lyons v The State of Western Australia - [2022] WASCA 81

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   LYONS -v- THE STATE OF WESTERN AUSTRALIA [2022] WASCA 81
CORAM:   BUSS P
MAZZA JA
BEECH JA

HEARD:   21 FEBRUARY 2022
DELIVERED          :   7 JULY 2022
FILE NO/S:   CACR 76 of 2021
BETWEEN:   JENNA LOUISE LYONS
Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   BARBAGALLO DCJ
File Number            :   IND 203 of 2021

Catchwords:

Criminal law - Appeal against sentence - Appellant convicted on her plea of guilty of one count of driving a motor vehicle, which was involved in an incident occasioning the death of another person, and at the time of the incident the appellant drove the motor vehicle while under the influence of drugs to such an extent as to be incapable of having proper control of the vehicle - Appellant sentenced to 7 years' imprisonment - Whether the sentencing judge erred in characterising the appellant's offending as at 'the upper end of offending' of the kind in question - Whether the sentence was manifestly excessive

Legislation:

Road Traffic Act 1974 (WA), s 59(1)(ba)

Result:

Leave to appeal refused
Appeal dismissed

Category: D

Representation:

Counsel:

Appellant	:	Ms S H King
Respondent	:	Ms K C Cook

Solicitors:

Appellant	:	Legal Aid (WA)
Respondent	:	Director of Public Prosecutions (WA)

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

Barron v The State of Western Australia [2010] WASCA 27; (2010) 55 MVR 123
Billing v The State of Western Australia [2017] WASCA 80; (2017) 80 MVR 127
Devine v The State of Western Australia [2010] WASCA 94; (2010) 202 A Crim R 1
Dodd v The State of Western Australia [2013] WASCA 80
Gelmi v The State of Western Australia [2019] WASCA 139; (2019) 89 MVR 443
Holden v The State of Western Australia [2011] WASCA 238
Lawson v The State of Western Australia [No 3] [2018] WASCA 129
R v Kilic [2016] HCA 48; (2016) 259 CLR 256
The State of Western Australia v Butler [2009] WASCA 110
The State of Western Australia v Gibbs [2009] WASCA 7; (2009) 192 A Crim R 399
The State of Western Australia v Molloy [2020] WASCA 123; (2020) 93 MVR 361
The State of Western Australia v Tittums [2018] WASCA 23; (2018) 83 MVR 476

JUDGMENT OF THE COURT:

This is an appeal against sentence.
The appellant was convicted, on her plea of guilty, of one count in an indictment.
The count alleged that on 7 March 2020, at Mount Barker, the appellant drove a Toyota LandCruiser motor vehicle, which was involved in an incident occasioning the death of William Burns Sounness, and that at the time of the incident the appellant drove the motor vehicle while under the influence of drugs to such an extent as to be incapable of having proper control of the vehicle contrary to s 59(1)(ba) of the Road Traffic Act 1974 (WA) (the RT Act).
The maximum penalty for the offence is 20 years' imprisonment and a fine of any amount. Also, the offender must be disqualified from holding a motor driver's licence for not less than 2 years.
On 1 June 2021, Barbagallo DCJ sentenced the appellant to 7 years' imprisonment with parole eligibility. The sentence began on the date that it was imposed. The sentencing judge ordered that the appellant be disqualified from holding a motor driver's licence for 7 years with that period to commence on the date of the appellant's release from custody.
The appellant has appealed against the sentence of imprisonment but not against the period of disqualification.
The appellant relies upon two grounds of appeal.
Ground 1 alleges, in essence, that the sentence of 7 years' imprisonment was manifestly excessive.
Ground 2 alleges, in essence, that the sentencing judge erred in characterising the appellant's offending as at 'the upper end of offending' of the kind in question (ts 30).
On 4 November 2021, Buss P referred the application for leave to appeal on those grounds to the hearing of the appeal.
Neither of the grounds of appeal has a reasonable prospect of success. Leave to be appeal should be refused. The appeal must be dismissed.

The facts and circumstances of the offending

On 7 March 2020, at 1.00 am, the appellant began driving her Toyota LandCruiser from her home in Orelia to Albany.
At the time, the appellant, to her knowledge, was not entitled to drive. Her motor driver's licence had been suspended during 2019 for non‑payment of fines. The appellant had slept very little in the preceding three days. She sent messages, while driving, that were consistent with her being very tired and falling asleep when driving. After she began driving, the appellant began to feel fatigued but nevertheless continued driving towards Albany.
At 4.04 am, the appellant sent an audio message which stated that she had fallen asleep twice, perhaps three times, and had awoken when her vehicle was on the gravel shoulder of the road. At 4.05 am, the appellant sent a text message to her boyfriend in Albany stating that she had fallen asleep twice.
At 4.11 am, the appellant arrived in Williams. She stopped at the Caltex service station. The appellant remained in Williams for about 20 minutes before departing.
At about 6.30 am, the appellant was travelling in a southerly direction on Albany Highway near Mount Barker. She approached a sweeping left bend at the base of a small valley near Ward Road. At the time, the victim, William Sounness, who was aged 79, was driving his Holden Commodore in a northerly direction on Albany Highway.
The appellant failed to negotiate a left bend and drove onto the incorrect side of the road. Her Toyota LandCruiser was in the direct path of the Holden Commodore. The vehicles collided head on in the northbound lane.
At the point of the collision, Albany Highway is a sealed two carriage way road with one lane of travel for southbound traffic and one lane of travel for northbound traffic. The lanes are separated by double continuous white lines. The lateral boundaries of the road are marked by continuous white lines. Narrow gravel shoulders abut each side of the carriageway. There is then an open grassed verge to the east and a grass verge intermixed with large trees to the west. The speed limit is 110 km per hour. The road was in good repair and the embankments on each side of the carriageway were protected by steel barriers.
Mr Sounness sustained life threatening injuries as a result of the collision. He was airlifted to Royal Perth Hospital. On 15 March 2020 Mr Sounness died from his injuries.
The appellant suffered fractured ribs, a fractured sternum and facial lacerations as a result of the collision. She was taken to Albany Hospital for treatment. Police obtained a sample of the appellant's blood after the collision. Analysis of the blood by the Chemistry Centre revealed that the blood contained 0.36 milligrams per litre of methylamphetamine and 0.03 milligrams per litre of amphetamine. Professor Joyce, a chemical pathologist and toxicologist, determined on the basis of the Chemistry Centre's analysis that the appellant was incapable of having proper control of the Toyota LandCruiser at the time of the collision. Professor Joyce was of the opinion that a blood concentration of 0.36 milligrams per litre of methylamphetamine is relatively high.
Police located a small clipseal bag containing methylamphetamine in the driver's area of the Toyota LandCruiser.
The appellant participated in two interviews with police.
The first interview occurred on 9 March 2020 at Albany Hospital. The appellant stated that she had arranged to travel from Perth to Albany on 6 March 2020, but had fallen asleep after work. She therefore decided to drive to Albany in the early hours of 7 March 2020. When she left home at 1.00 am the appellant was initially tired but did not consider that she was a danger on the roads. According to the appellant she remembered taking a photograph of the sunrise and also recalled being overtaken by a Hilux vehicle while driving. However, she could not recall anything after that incident. The appellant denied taking any drugs before she began driving at 1.00 am on 7 March 2020 or during the journey to Albany. According to the appellant, she felt tired while driving but not to the point where she felt she needed to stop driving.
The second interview occurred on 24 June 2020 at Kwinana Police Station. The appellant said that she did not want to participate in an interview. Consequently, the interview was terminated.
Prior to sentencing, the appellant admitted to the author of the pre‑sentence report that she had ingested methylamphetamine when she stopped at Williams (at about 2 hours before the collision). She had taken the drug for the purpose of remaining awake during the remainder of the journey to Albany.

The sentencing judge's sentencing remarks including the appellant's personal circumstances and antecedents

The sentencing judge recounted in her sentencing remarks the facts and circumstances of the offending. Her Honour noted the maximum penalty for the offence, namely 20 years' imprisonment and a fine of any amount and, also, that the offender must be disqualified from holding a motor driver's licence for not less than 2 years.
The appellant was born on 10 August 1984. She was aged 35 at the time of the offending and was 36 when sentenced.
The appellant was born in the United Kingdom. Her formative years were positive and without any significant trauma or abuse. Her parents and her younger brother continue to reside in the United Kingdom.
After completing the equivalent of year 12 at school in the United Kingdom, the appellant completed a 2 year apprenticeship as a disability support worker. She has worked in this field in the United Kingdom and Australia.
In 2014 the appellant migrated to Australia. Her elder brother had migrated to Australia about 2 years earlier.
In March 2020 the appellant's visa was cancelled. As a result of the cancellation, she has been unable to obtain any form of employment. Also, as a result of the cancellation, she has been ineligible for Centrelink or Medicare assistance.
Since March 2020, the appellant has relied upon financial assistance from friends and acquaintances and cash from casual engagements as a domestic cleaner or babysitter.
The appellant had been in an on/off relationship for about 5 years. She has no dependants. The appellant has suffered from symptoms of depression and anxiety for most of her adult life.
The appellant has experimented during her adult life with a variety of illicit drugs including MDMA, cocaine and methylamphetamine. However, she asserted that she did not have a protracted or entrenched history of substance abuse.
The appellant's on/off relationship was with a man who resided in Albany. This relationship was dysfunctional. The appellant was often subjected to emotional and psychological and, on occasions, physical abuse.
On the day before the offending, the appellant asserted that she contacted the man in Albany to explain that she did not have the money for fuel to drive to Albany. She would prefer to travel to Albany the following morning, in daylight hours, after she had slept and had been able to access some money for fuel. However, the man was unhappy with this proposal and emotionally abused the appellant. The appellant decided to travel in the early hours of the morning to avoid an argument with the man and a possible physical assault by him.
The sentencing judge found that, during the journey to Albany, the appellant had fallen asleep, while driving, at least twice. The appellant therefore decided to stop at Williams for the purpose of ingesting methylamphetamine. The appellant thought that the methylamphetamine would assist her to remain awake for the balance of the journey.
Her Honour noted three victim impact statements from members of Mr Sounness' family. Her Honour said that the statements made for 'heartbreaking reading' (ts 25). Mr Sounness' mother was devastated by his death. He had cared for his mother and enabled her to live independently on a farm at the age of 98. Her Honour said that the offending had caused and would continue to cause an enormous and devastating impact on Mr Sounness' family.
The sentencing judge said that there were a number of aggravating factors in relation to the offending. First, the appellant did not have a valid motor driver's licence. She should never have been on the road. Secondly, the appellant embarked on the journey in the full knowledge of the fact that she was tired. Thirdly, the appellant continued driving, despite having fallen asleep two or three times. She awoke on the gravel shoulder of the road and laughed about it in an audio‑recording. Fourthly, the appellant acknowledged her tiredness by ingesting methylamphetamine at Williams rather than stopping. The methylamphetamine induced a state of intoxication which deprived the appellant of critical capacities required for the safe control of her vehicle. Fifthly, the appellant's decision to drive over 400 kms in a tired and drug‑fuelled state was 'as far from momentary inattention as one could get' (ts 27).
Her Honour noted that the appellant had a prior record of traffic offences. Those offences comprised two convictions for exceeding the speed limit by between 10 and 19 km per hour and two convictions for driving without a valid motor driver's licence. Each of those offences was punished by the imposition of a fine. Her Honour observed that although, in isolation, the previous traffic offences might be considered 'pretty minor' (ts 27), the appellant's traffic history showed a continuing attitude of disobedience of the traffic laws.
The sentencing judge accepted that the appellant had pleaded guilty at the first reasonable opportunity. Her Honour reduced the head sentence that she would otherwise have imposed by 25% pursuant to s 9AA of the Sentencing Act 1995 (WA).
Her Honour accepted that the appellant was genuinely remorseful for the offending.
The sentencing judge referred to the appellant's personal circumstances and, to the extent that they were mitigating, took them into account.
Her Honour said that it was difficult to assess the appellant's prospects of rehabilitation. Those prospects would depend entirely upon the appellant addressing the factors that had impacted upon her offending behaviour.
The sentencing judge emphasised the importance of general and personal deterrence as sentencing factors having regard to the widespread use of methylamphetamine in the community and the effect of that drug upon the capacity of a person to drive a motor vehicle.
Her Honour considered the appellant's offending 'to be the upper end of offending of this kind' [sic] (ts 30).
The sentencing judge then imposed the sentence of 7 years' imprisonment with parole eligibility.

The appellant's submissions

As to ground 2, counsel for the appellant clarified that it was not alleged that the sentencing judge sentenced the appellant on the basis that her offending was within the worst category of offending of this kind.
Counsel argued that her Honour's characterisation of the offending 'to be the upper end of offending of this kind' [sic] was erroneous.
However, counsel conceded, in the course of oral argument, that it was 'very tricky to discern' (appeal ts 2) what the sentencing judge meant in referring to the appellant's offending 'to be the upper end of offending of this kind' [sic] and, consequently, it was not easy to demonstrate error by her Honour.
As to ground 1, counsel for the appellant submitted that the sentence of 7 years' imprisonment was manifestly excessive having regard to the maximum penalty for the offence, the standard of sentencing customarily observed, the level of seriousness of the offending in question and the appellant's personal circumstances and antecedents.
Counsel referred to a number of decisions of this court involving appeals against sentence for dangerous driving occasioning death where the maximum penalty was 20 years' imprisonment.
It was submitted that the appellant did not ingest the methylamphetamine or drive dangerously 'for thrills or to escape police pursuit' (appeal ts 5). Rather, the appellant, so it was submitted, made a 'grave mistake' in driving while she was intoxicated by an illicit drug (appeal ts 5).
Ultimately, counsel asserted that, having regard to the appellant's plea of guilty at the first reasonable opportunity (for which she received a 25% discount), her genuine remorse and the sentencing pattern revealed by previous decisions of this court, the sentence of 7 years' imprisonment was unreasonable or plainly unjust.

The State's submissions

As to ground 2, counsel for the State noted the absence of a preposition after the word 'be' and before the word 'the' in the sentencing judge's statement, 'I consider your offending to be the upper end of offending of this kind' [sic] (ts 30).
It was submitted that her Honour plainly regarded the appellant's offending as being, in effect, 'more serious than the average' and that her offending 'fell within the upper end of the range of seriousness of offences' of the kind in question.
It was submitted that, so understood, the sentencing judge's characterisation of the seriousness of the appellant's offending was open and did not reveal error.
As to ground 1, counsel argued that the appellant's offending was very serious. Unlike many of the reasonably comparable cases, the appellant deliberately made a number of decisions over many hours which endangered the lives of other road users and ultimately killed one of them. The imposition of the sentence of 7 years' imprisonment was both open and appropriate. No implied error is apparent from the sentencing outcome.

The merits of the appeal

Section 59(1)(a), s 59(1)(ba) and s 59(1)(bb) of the RT Act create offences where a motor vehicle driven by a person (the driver) is involved in an incident occasioning, relevantly, the death of another person, and the driver was, at the time of the incident, driving the motor vehicle while under the influence of alcohol (s 59(1)(a)) or drugs (s 59(1)(ba)) or alcohol and drugs (s 59(1)(bb)) to such an extent as to be incapable of having proper control of the vehicle. Section 59(3)(a)(i) provides that the maximum penalty for each of those offences is, relevantly, 20 years' imprisonment.
Section 59(1)(b) of the RT Act creates an offence where a motor vehicle driven by a person (the driver) is involved in an incident occasioning, relevantly, the death of another person, and the driver was, at the time of the incident, driving the motor vehicle in a manner (which expression includes speed) that was, having regard to all the circumstances of the case, dangerous to the public or to any person. Section 59(3)(a)(i) provides that, if the offence is committed in 'circumstances of aggravation' (as defined in s 49AB(1)), the maximum penalty for the offence is, relevantly, 20 years' imprisonment. Section 59(3)(b)(i) provides that, if the offence is committed in any other circumstances (that is, not in 'circumstances of aggravation'), the maximum penalty for the offence is, relevantly, 10 years' imprisonment.
In the present case, the appellant was convicted of the offence created by s 59(1)(ba). The maximum penalty of 20 years' imprisonment for the offences created by s 59(1)(a), s 59(1)(ba) and s 59(1)(bb) reveals the seriousness with which Parliament regards driving a motor vehicle while under the influence of alcohol or drugs or alcohol and drugs to such an extent as to be incapable of having proper control of the vehicle.
The appellant does not challenge any of the sentencing judge's findings of fact.
As to ground 2, the absence of a preposition (for example, 'within', 'at' or 'towards') after the word 'be' and before the word 'the' in the sentencing judge's statement, 'I consider your offending to be the upper end of offending of this kind' [sic] (ts 30), makes it difficult to understand her Honour's precise characterisation of the offending.

However, in our opinion, it is probable, having regard to:
(a)the sentence her Honour imposed (7 years' imprisonment);
(b)the maximum penalty (20 years' imprisonment); and
(c)the mitigating factors of the plea of guilty at the first reasonable opportunity, the appellant's genuine remorse for the offending and her personal circumstances,
that her Honour intended to convey that, in her view, the appellant's offending was within the upper end, as opposed to the lower end, of offending of the kind in question.
On that understanding of what the sentencing judge intended to convey, her Honour's characterisation was not in error. As we will explain in the context of ground 1, the appellant's offending was very serious and the sentence of 7 years' imprisonment was not manifestly excessive. It was open and appropriate to regard the appellant's offending as within the upper end of the range of seriousness of offending of this kind.
Her Honour did not hold that the appellant's offending was an instance of an offence so grave as to warrant the imposition of the maximum penalty or a sentence close to the maximum penalty, having regard both to the nature of the offence and the circumstances of the offender. See R v Kilic.[1]
[1] R v Kilic [2016] HCA 48; (2016) 259 CLR 256 [19] ‑ [20] (Bell, Gageler, Keane, Nettle & Gordon JJ).
In any event, a sentencing judge's characterisation of the seriousness of an offender's offending involves an evaluative judgment, not a finding of fact. Often, as in the present case, a challenge on appeal to that characterisation is better seen as a particular of a ground of appeal that alleges manifest excess. See Holden v The State of Western Australia;[2] Lawson v The State of Western Australia [No 3].[3] Consequently, the sentencing judge's characterisation in the present case of the seriousness of the appellant's offence is not, in the circumstances, a matter of particular importance on appeal. What is important, in evaluating the sentence of 7 years' imprisonment, is the seriousness of the offence committed by the appellant, as determined by taking into account the maximum penalty, the facts and circumstances of the offence including the vulnerability of Mr Sounness, the aggravating factors, the mitigating factors and any reasonably comparable cases. See s 6(2) of the Sentencing Act; Dodd v The State of Western Australia.[4]
[2] Holden v The State of Western Australia [2011] WASCA 238 [10] (McLure P; Buss JA & Mazza J agreeing).
[3] Lawson v The State of Western Australia [No 3] [2018] WASCA 129 [111] (Buss P, Mazza & Beech JJA).
[4] Dodd v The State of Western Australia [2013] WASCA 80 [45] (Buss JA; Mazza JA agreeing).
Ground 2 fails.
As to ground 1, a ground of appeal which alleges that a sentence is manifestly excessive asserts the existence of implied error. It is necessary, in determining whether a sentence is manifestly excessive, to examine it from the perspective of the maximum sentence prescribed by law for the relevant offence, the standards of sentencing customarily observed with respect to that offence, the place which the criminal conduct occupies on the scale of seriousness of offences of the kind in question, and the personal circumstances of the offender.
The guidance afforded by comparable cases is flexible rather than rigid. The mere fact that a sentence is within the range of other sentences imposed for similar offending does not necessarily establish that there was an appropriate exercise of the sentencing discretion in the particular case. Similarly, the mere fact that a sentence is outside the range does not necessarily establish that the exercise of the sentencing discretion in the particular case miscarried.
A sentencing range for comparable offences is merely one of the factors to be taken into account in deciding whether an individual sentence is manifestly excessive. A range of sentences customarily imposed is of significance for the purpose of ensuring broad consistency in the sentencing of offenders in broadly comparable cases. However, a sentencing range for comparable cases does not fix the range of a sound exercise of the sentencing discretion in a particular case.
When this court dismisses an appeal against sentence, and when it allows an appeal against sentence and resentences the offender, this court's decision on the sentencing outcome does not, of itself, fix the upper or lower limit of the range.
We have considered a number of decisions of this court involving appeals against sentence for dangerous driving occasioning death where the maximum penalty was 20 years' imprisonment; namely The State of Western Australia v Gibbs;[5] The State of Western Australia v Butler;[6] Barron v The State of Western Australia;[7] Devine v The State of Western Australia;[8] Billing v The State of Western Australia;[9] The State of Western Australia v Tittums;[10] Gelmi v The State of Western Australia;[11] and The State of Western Australia v Molloy.[12] Butler, Barron and Gelmi were concerned, relevantly, with dangerous driving occasioning death, contrary to s 59(1)(a) of the RT Act. Gibbs, Devine, Billing, Tittums and Molloy were concerned, relevantly, with dangerous driving occasioning death, contrary to s 59(1)(b) of the RT Act, in circumstances of aggravation. It is unnecessary to repeat the facts and circumstances of the cases we have mentioned or the sentences imposed. There are some comparable features between some of those cases and the present case but there are also distinguishing features.
[5] The State of Western Australia v Gibbs [2009] WASCA 7; (2009) 192 A Crim R 399.
[6] The State of Western Australia v Butler [2009] WASCA 110.
[7] Barron v The State of Western Australia [2010] WASCA 27; (2010) 55 MVR 123.
[8] Devine v The State of Western Australia [2010] WASCA 94; (2010) 202 A Crim R 1.
[9] Billing v The State of Western Australia [2017] WASCA 80; (2017) 80 MVR 127.
[10] The State of Western Australia v Tittums [2018] WASCA 23; (2018) 83 MVR 476.
[11] Gelmi v The State of Western Australia [2019] WASCA 139; (2019) 89 MVR 443.
[12] The State of Western Australia v Molloy [2020] WASCA 123; (2020) 93 MVR 361.
There is no tariff for offences of the kind committed by the appellant because of the great variation that is possible in the circumstances of the offending and the offenders. See Butler [7]; Billing [40]; and Gelmi [68].
The appellant's offending was very serious. The egregious nature of the appellant's conduct is demonstrated by the following:
(a)The appellant embarked on a 400 km journey at night on a country road.
(b)The appellant did not have a valid motor driver's licence.
(c)When she embarked on the journey and during the journey the appellant knew that she was fatigued.
(d)The appellant fell asleep two or three times while she was driving and awoke when her vehicle was on the gravel shoulder of the road.
(e)The appellant's response to her fatigue was to intoxicate herself with methylamphetamine to such an extent as to make her incapable of having proper control of her vehicle.
(f)The appellant drove for long periods while she was, to her knowledge, fatigued or intoxicated by methylamphetamine and therefore not in a fit state to have proper control of her vehicle.
The appellant was aged 35 when she committed the offence. She was not youthful or inexperienced for sentencing purposes.
Although the appellant's prior traffic record did not aggravate the seriousness of the offending in question, her previous offences did indicate, as her Honour noted, a continuing attitude of disobedience to the traffic laws.
Personal deterrence, general deterrence and the protection of vulnerable members of the public in motor vehicles on public roads were important sentencing factors.
The principle mitigating factor was the appellant's plea of guilty at the first reasonable opportunity. There was also some mitigation in the appellant's genuine remorse and her personal circumstances.
In our opinion, the sentence of 7 years' imprisonment was commensurate with the seriousness of the offence. We are satisfied, after considering all relevant facts and circumstances and all relevant sentencing factors, that the length of the sentence was not unreasonable or plainly unjust. We have arrived at that conclusion upon evaluating the sentence from the perspective of the maximum penalty; the facts and circumstances of the offence; the seriousness of the offending (including the vulnerability of Mr Sounness); the general pattern of sentencing for offences of this kind; the importance of personal and general deterrence and the protection of vulnerable members of the public in motor vehicles on public roads as sentencing factors; and all aggravating and mitigating factors. Error is unable to be inferred from the sentencing outcome. The sentence is not manifestly excessive.
Ground 1 fails.

Conclusion

Neither of the grounds of appeal had a reasonable prospect of success. Leave to appeal should be refused. The appeal must be dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
BS
Associate to the Honourable Justice Buss
7 JULY 2022