Meadowcroft v The State of Western Australia - [2023] WASCA 98

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   MEADOWCROFT -v- THE STATE OF WESTERN AUSTRALIA [2023] WASCA 98
CORAM:   MAZZA JA
MITCHELL JA
HALL JA

HEARD:   7 MARCH 2023
DELIVERED          :   21 JUNE 2023
FILE NO/S:   CACR 53 of 2022
BETWEEN:   PAUL STUART MEADOWCROFT
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

FILE NO/S: CACR 54 of 2022
BETWEEN: PAUL STUART MEADOWCROFT
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   FLYNN DCJ
File Number            :   GER 72 of 2021

Catchwords:

Criminal law - Appeal against conviction - Doing an act with intent to harm as a result of which bodily harm was caused - Alternative charge of dangerous driving occasioning grievous bodily harm - Whether reference by the trial judge to the relative seriousness of first charge as compared to alternative charge caused unfairness - Whether trial should have been aborted - Whether prosecutor caused an unfair trial by submitting in closing that appellant was untruthful - Whether prosecutor caused an unfair trial by manner of cross‑examination of appellant

Criminal law - Appeal against sentence - Whether sentencing judge erred by finding that appellant had a subjective intent to endanger the life of the victim - Whether sentence of 8 years' imprisonment for s 304(2) Criminal Code offence was manifestly excessive

Legislation:

Criminal Code (WA), s 304

Result:

CACR 53 of 2022

Leave to appeal refused

Appeal dismissed

CACR 54 of 2022

Leave to amend grounds of appeal refused

Leave to appeal on ground 2 granted

Appeal dismissed

Category: B

Representation:

CACR 53 of 2022

Counsel:

Appellant	:	Mr P G Giudice
Respondent	:	Ms K C Cook

Solicitors:

Appellant	:	George Giudice Law Chambers
Respondent	:	Director of Public Prosecutions (WA)

CACR 54 of 2022

Counsel:

Appellant	:	Mr P G Giudice
Respondent	:	Ms K C Cook

Solicitors:

Appellant	:	George Giudice Law Chambers
Respondent	:	Director of Public Prosecutions (WA)

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

Allied Pastoral Holdings Pty Ltd v Federal Commissioner of Taxation [1983] 1 NSWLR 1; 44 ALR 607
Brewerton v The State of Western Australia [2017] WASCA 191
Browne v Dunn (1893) 6 R 67 (HL)
Burn v The State of Western Australia [2022] WASCA 64
Cheeseman v The State of Western Australia [2023] WASCA 78
Chikonga v The State of Western Australia [2017] WASCA 34
Frances v The State of Western Australia [2019] WASCA 43
Hinkley v The State of Western Australia [2014] WASCA 122
Kaokula v The State of Western Australia [2016] WASCA 198
Lazarevic v The State of Western Australia [2007] WASCA 156
Lyons v The State of Western Australia [2022] WASCA 81
McAllister v The State of Western Australia [2017] WASCA 18
Penny v The State of Western Australia [2016] WASCA 173
Sophiadakis v The State of Western Australia [2016] WASCA 203
Ugle v The State of Western Australia [2018] WASCA 16
Vanderwaide v The State of Western Australia [2019] WASCA 148
Wongawol v The State of Western Australia [2011] WASCA 22; (2011) 42 WAR 91

JUDGMENT OF THE COURT:

The appellant was charged on an indictment containing four counts. The charges all arose out of an incident that occurred on the afternoon of 1 April 2021 at Geraldton in which a motor vehicle driven by the appellant struck a cyclist, Mr Steve Zimmermann, causing him major injuries.
The charges were as follows:
1.On 1 April 2021 at Geraldton the appellant, with intent to harm Steve Zimmermann did an act as a result of which bodily harm was caused to Steve Zimmermann contrary to s 304(2)(b) of the Criminal Code (WA) (Code).
2.In the alternative to count 1, on 1 April 2021 at Geraldton, the appellant drove a motor vehicle which was involved in an incident occasioning grievous bodily harm to Steve Zimmermann and at the time of the incident the appellant drove the motor vehicle in a manner that was, having regard to all the circumstances of the case, dangerous to the public or to any person contrary to s 59(1)(b) and s 59(b)ii of the Road Traffic Act 1974 (WA).
3.On 1 April 2021 at Geraldton a motor vehicle driven by the appellant was involved in an incident occasioning bodily harm to Steve Zimmermann and that the appellant failed to stop immediately after the occurrence of the incident and for as long as necessary to comply with the requirements of s 54(2) of the Road Traffic Act, namely to ensure that Steve Zimmermann received all the assistance, including medical aid, that was necessary and practicable in the circumstances and that the incident occasioned grievous bodily harm to Steve Zimmermann contrary to s 54(1) and s 54(2) and s 54(3)(b) of the Road Traffic Act.
4.On 1 April 2021 at Geraldton a motor vehicle driven by the appellant was involved in an incident occasioning bodily harm to Steve Zimmermann and that the appellant failed to report the incident forthwith to an officer in charge of a police station and that the incident occasioned grievous bodily harm to Steve Zimmermann contrary to s 56(1) and s 56(2) of the Road Traffic Act.
The appellant pleaded guilty to counts 3 and 4 and not guilty to count 1. He indicated a willingness to plead guilty to the alternative count, count 2, but that offer was not accepted by the prosecution.
After trial the appellant was convicted of count 1 (and count 2 then fell away). He was sentenced to 8 years' imprisonment on count 1, 2 years' imprisonment on count 3, and 1 year imprisonment on count 4. The sentences on counts 3 and 4 were ordered to be served concurrently and the sentence on count 1 was ordered to commence six months after the commencement of the other sentences. Accordingly, the total effective sentence was 8 years and 6 months' imprisonment. An order was made that the appellant be eligible for parole.
The appellant seeks leave to appeal against both his conviction on count 1 and against his sentence.
There are four grounds of appeal against conviction. Ground 1 contends that the trial judge caused unfairness by informing the jury panel that the appellant had offered to plead guilty to the alternative count rather than the 'more serious' charge. Ground 2 contends that the trial judge erred by not aborting the trial in relation to the same issue. Ground 3 contends that the prosecutor caused an unfair trial by submitting in closing that the appellant had lied in his evidence when it was not put to him in cross‑examination that he was lying. Ground 4 contends that the prosecutor caused an unfair trial by implying in cross‑examination that the appellant had made a telephone call shortly after the incident in which he had said that he did not like cyclists on the road.
For the reasons that follow none of the grounds of appeal against conviction has a reasonable prospect of succeeding. Leave in respect of each of those grounds should be refused and the appeal against conviction dismissed.
There are two grounds of appeal against sentence. The first ground is that 'the sentence was manifestly excessive'. At the hearing of the appeal this was clarified as meaning that the sentence of 8 years' imprisonment on count 1 was manifestly excessive. The second ground contends that the trial judge erred in finding that the appellant had a subjective intent to endanger the life of the victim.
For the reasons that follow we would grant leave to appeal on the first ground of the appeal against sentence, refuse leave in respect of the second ground and dismiss the appeal.

Prosecution case

The prosecution case was that at about 1.00 pm on 1 April 2021 Mr Zimmermann finished work at a crayfish factory in Geraldton. Mr Zimmermann was a backpacker from Germany. It was his habit to ride his bicycle to and from work each day.[1]
[1] ts 38.
Mr Zimmermann rode his bicycle along the foreshore and then right into Bayly Street. He continued along Bayly Street, past the intersection with Chapman Road and a shopping centre on the left‑hand side. At that point Bayly Street rises over a hill. Mr Zimmermann rode up the hill until he came to a roundabout which is at the intersection of George Road. He looked to his right at the roundabout and, seeing that the way was clear, started to cross the road.[2]
[2] ts 39.
At that point a four‑wheel drive utility vehicle came from Mr Zimmermann's left at speed. The vehicle was fitted with a bull bar. The prosecution case was that that vehicle was driven by the appellant.[3]
[3] ts 39.
As Mr Zimmermann was half‑way across George Road he stopped at a traffic island to see what the appellant's vehicle was doing. The appellant's vehicle stopped suddenly at the white dotted line at the roundabout. When Mr Zimmermann started to ride his bike across George Road to continue riding up Bayly Street the appellant's vehicle pulled forward a metre, forcing Mr Zimmermann to ride his bike around the front of the vehicle.[4]
[4] ts 39.
Mr Zimmermann was annoyed with the appellant for pulling out and made an obscene finger gesture. He then continued to ride up the hill on the footpath adjacent to Bayly Street. As he did so he made the obscene gesture again. He also cursed the appellant in German.[5]
[5] ts 39 - 40.
The appellant turned left from George Street into Bayly Street, travelling in the same direction as Mr Zimmermann. As he approached Mr Zimmermann, Mr Zimmermann made the obscene finger gesture again. The appellant passed Mr Zimmermann, then did a U‑turn to go back down Bayly Street in the opposite direction to Mr Zimmermann.[6]
[6] ts 40.
The appellant then crossed from the correct side of the road to the incorrect side of the road, over the kerb, across a gravel verge, onto the footpath and into the path of Mr Zimmermann. As the appellant's vehicle approached, Mr Zimmermann stopped riding but the vehicle struck him and his bike.[7]
[7] ts 40.
A witness to the incident described Mr Zimmermann flying through the air and hitting a green fence. When the witness approached Mr Zimmermann he was lying in a foetal position moaning. His damaged bike was nearby. One of the wheels of the bike was crushed, consistent with the vehicle having driven over it. Mr Zimmermann could not feel his legs and the witness called for an ambulance. The witness saw the registration number of the appellant's vehicle, which he gave to the police.[8]
[8] ts 41 - 42.
After the impact, the appellant continued to drive back across the gravel verge and the kerb, back onto Bayly Street. He then drove on the correct side of the road back to the roundabout at George Street. He turned left at George Street and continued up that street. At no stage did he stop or make a report to the police.[9]
[9] ts 41.
Mr Zimmermann was taken to Geraldton Regional Hospital and then flown to Royal Perth Hospital. He suffered very significant injuries. They included injuries to his spine which have resulted in him being a tetraplegic and confined to a wheelchair.[10]
[10] ts 45 ‑ 46.
Later that day police attended at the appellant's home. The appellant was arrested and his vehicle was seized. He made some admissions at the time of his arrest, including saying that he had thought of driving straight to the police but had 'just panicked and kept going'. He claimed that what had occurred was an accident.[11]
[11] ts 45.
A crime scene examiner examined the friction marks and tyre tracks at the scene and concluded that they were consistent with the vehicle accelerating and that there were no signs that the brakes had been applied. The tyre tracks were not consistent with any sliding of the vehicle and did not indicate any attempt to deviate away from the footpath where Mr Zimmermann had been riding until after the point of impact.[12]
[12] ts 45.
Formal admissions were made by the appellant at the trial, including that he was the driver of the vehicle and that injuries had occurred as a result of impact with the vehicle. The only element of count 1 that was an issue was whether the appellant, in driving his vehicle in the manner he did, intended to harm Mr Zimmermann. The prosecution case was that the appellant was angry or annoyed with Mr Zimmermann and that he drove his vehicle at Mr Zimmermann, either with an intent to unlawfully cause bodily harm to him or with the intent of unlawfully endangering Mr Zimmermann's life, health or safety.[13]
[13] ts 46 ‑ 48.

Appeal against conviction - the grounds

The grounds of appeal against conviction are as follows:[14]
1.His Honour the trial judge caused an irretrievable unfairness to the accused by informing the jury panel that the accused had pleaded guilty to the alternative count 2 which was not accepted in satisfaction of the more serious charge which is charge number 1.
2.His Honour the trial judge was wrong not to abort the trial in relation to this issue when requested by counsel for the accused.
3.The prosecutor caused an unfair trial by accusing, in his closing, the appellant of lying when he did not put to him that he was lying in cross-examination.
4.The prosecutor caused an unfair trial by asking the accused in cross‑examination whether he had a phone call with family members while locked up before obtaining bail and that he did not like cyclists on the road because they get in the way, implying that this was what was said in the phone call shortly after the incident in that phone call without calling evidence of any such call.
[14] WAB 6 - 7.
Grounds 1 and 2 relate to the same issue and it is convenient to deal with them together.

Grounds 1 and 2 - the arraignment

At a hearing immediately prior to the trial commencing, trial counsel for the appellant (who also represented the appellant in this appeal) asked that when the appellant was arraigned the alternative count, count 2, be put to him. Counsel said that the appellant intended to plead guilty to counts 2, 3 and 4. As count 2 was expressed to be in the alternative to count 1, the plea of guilty to that count could not be accepted unless the prosecution was willing to accept it. The prosecutor made it clear at the hearing that a plea of guilty to count 2 would not be accepted in satisfaction of count 1 and that the prosecution intended to proceed with count 1.[15]
[15] ts 5 ‑ 8.
At the commencement of the trial the appellant was arraigned on the indictment. As is the usual practice, this occurred in the presence of the jury panel. The appellant entered a plea of not guilty to count 1 and pleas of guilty to counts 2, 3 and 4. The prosecutor formally stated that the prosecution did not accept the plea to count 2 in satisfaction of count 1.[16]
[16] ts 14 ‑ 15.
The trial judge then addressed the panel in the following terms:[17]
FLYNN DCJ: Members of the jury panel, you've just heard that Paul Stuart Meadowcroft ‑ the accused man in this case ‑ pleaded not guilty to count number 1 on an indictment. And count [sic] is a reference to a charge. So he has pleaded not guilty to a charge that on 1 April 2021, at Geraldton, with intent to harm Steve Zimmermann, he did an act as a result of which bodily harm was caused to Steve Zimmermann.
You've just heard Mr Meadowcroft, the accused, plead guilty to an alternative to that charge. He pleaded guilty to a charge that he drove a motor vehicle which was involved in an incident occasioning grievous bodily harm to Steve Zimmermann; and at the time he drove it in a manner that was, having regard to all the circumstances, dangerous to the public or any person.
And you've just heard the State say that that plea of guilty to that dangerous driving charge is not accepted in satisfaction of the more serious charge, which is charge number 1: with intent to harm Steve Zimmermann, Mr Meadowcroft did an act as a result of which bodily harm was caused to Steve Zimmermann. As a result, there will be a trial in relation to count number 1 on the indictment.
You also heard Mr Meadowcroft plead guilty to two other charges. Charges of failing to stop after an incident to ensure that Mr Zimmermann received assistance. And that was count 3 on the indictment. And count number 4: failing to report an incident to a police station. The State has laid this charge ‑ count number 1 ‑ and Mr Meadowcroft is presumed to be innocent of that charge. It's for the State to prove that charge beyond reasonable doubt. (emphasis added)
[17] ts 15 ‑ 16.
After the jury had been empanelled and the trial judge had made preliminary remarks, counsel for the appellant made an application to abort the trial. He submitted that the appellant's right to a fair trial had been 'irretrievably extinguished' because the trial judge had told the jury panel that the plea of guilty to count 2 had not been accepted in satisfaction of the 'more serious charge', namely count 1. Counsel said that his fear was that the jurors would conclude that the appellant was pleading guilty to 'all the less serious charges' and that the only reason he was pleading not guilty to count 1 was because it was more serious. Counsel suggested that this would obscure the real reason for the plea, which was that the appellant maintained that he did not have an intent to harm Mr Zimmermann.[18]
[18] ts 23.
The trial judge dismissed the application. He said that he was not persuaded that there was a real risk of the jury engaging in impermissible reasoning. He said that he had referred to count 1 as being the more serious charge to explain to the jury why they were required to consider count 1 notwithstanding a plea of guilty had been offered in relation to the alternative count. He said that the focus of the trial would be on the jury being satisfied beyond reasonable doubt as to the elements of count 1. The risk of the jury being distracted by the fact that the appellant had offered to plead guilty to an alternative charge was not real.[19]
[19] ts 23 ‑ 24.

Grounds 1 and 2 ‑ appellant's submissions

The appellant's submissions on grounds 1 and 2 were, in essence, a repetition of the submissions that were made to the trial judge. The appellant submitted that the description by the trial judge of count 1 as 'the more serious charge' produced a real danger that the jury would impermissibly reason that it was only due to the seriousness of the charge that the appellant had pleaded not guilty to count 1. It was submitted that this would undermine the appellant's reason for defending that charge, namely that he had no intention to harm the victim.[20]
[20] WAB 8 ‑ 9.

Grounds 1 and 2 - the merits

The essential contention raised by grounds 1 and 2 is that the jury would have been distracted by count 1 being referred to by the trial judge as the more serious charge and would have failed to appreciate that the issue to be determined at the trial was whether the appellant had an intent to harm. The appellant contends that there was a risk that the jury might wrongly suppose that the appellant had pleaded not guilty to count 1 merely because it was a more serious charge and not because he was genuinely contesting his guilt of that charge.[21]
[21] WAB 9.
Count 1 alleged an offence under s 304(2) of the Code. It is an essential element of such an offence that there be an intent to harm. Count 2 alleged, in the alternative, that the appellant drove his vehicle dangerously thereby occasioning grievous bodily harm to Mr Zimmermann contrary to s 59(1)(b) of the Road Traffic Act. That offence does not require proof of an intent to harm.
The necessity for proof of an intent to harm in respect of count 1 is evident from the wording of the charge in the indictment and must have been obvious to the jury. In any event, it was made plain in the opening addresses of both the prosecutor and defence counsel that that element was the sole issue at the trial, all other elements of count 1 being expressly admitted (and also implicitly admitted by the offer to plead guilty to count 2). Furthermore, the trial judge in his directions to the jury clearly set out the elements of each of the counts and what had to be proven to establish them.

Jurors would readily appreciate that the criminal law will generally treat the intentional infliction of physical harm more seriously than harm which is inflicted without such an intention. Further, jurors would readily appreciate that harm that is the result a deliberate act of violence will generally be regarded as more serious than harm that results from the negligent driving of a vehicle.
As a matter of fact, count 1 was the more serious charge. The fact that count 1 required proof of an intent to harm and count 2 was expressed as being in the alternative necessarily implied that count 1 was more serious. The jury panel heard the charges read, that count 2 was referred to as being an alternative to count 1 and that the prosecutor did not accept the plea to count 2 in satisfaction of count 1. In these circumstances, the trial judge's reference to count 1 being the more serious offence was no more than a statement of the obvious.
The trial judge, understandably, felt there was a need to explain to the jury why there had to be a trial in circumstances where the appellant had pleaded guilty to the alternative count. That need arose from the forensic decision made by defence counsel to have count 2 put to the appellant in the presence of the jury panel during the arraignment. The evident purpose was to give the appearance that the appellant was willing to admit to things he had done and in the hope that this would heighten his credibility in denying that he had an intent to harm. This purpose was made clear in defence counsel's opening address, which concluded as follows:[22]
Now, Mr Meadowcroft says to you, 'What I did, I accept responsibility for, and I will plead guilty. Driving dangerously in an incident occasioning the harm to the cyclist. But what I'm not guilty of, I'm not going to accept and at no time did I intend to harm this man.'
[22] ts 51.
Strictly speaking, there is no need to put an alternative charge to an accused if the prosecutor has stated that the State will not accept a plea of guilty to the alternative instead of the principal charge.[23] In some cases, as here, defence counsel might consider that there is a tactical advantage to be derived from having the alternative put even though they are aware that a plea of guilty to it will not be accepted.
[23] Criminal Procedure Act 2004 (WA) s 126(1)(f).
The appellant's argument seems to suggest that the problem was not that count 1 was not in fact more serious, but that the trial judge described it to the jury in those terms. That is, that describing count 1 as being more serious would have conveyed to the jury not merely the relative seriousness of the charges but that the appellant's plea of not guilty to count 1 was not genuine. That is highly speculative and would be contrary to what the trial judge told the jury was the proper approach.
It does not follow as a matter of logic that if a count in an indictment is described as being more serious than an alternative count that the jury will conclude that the accused has pleaded not guilty to the first charge only because it is a more serious one, without any regard for the elements of the charges. That line of thinking would ignore the very factors that make one charge more serious than another.
It is not antithetical to a fair consideration of the charges to acknowledge that one is more serious than another. The trial judge's remarks to the jury explaining the pleas were unexceptional. Count 1 was the more serious charge and to so describe it was not apt to distract the jury from the real issue.
The appellant's submissions fail to credit the jury with even the most basic levels of intelligence and of fidelity to their task. There was no 'real danger' that the jury would fail to appreciate that the real issue in the trial was whether the appellant had an intent to harm. That was made clear to the jury in the addresses of counsel and in the trial judge's directions. It is fanciful to suggest that there was any risk of unfairness to the appellant arising from the remarks of the trial judge.
This ground of appeal is entirely without merit and leave in respect of it should be refused.

Ground 3 - the appellant's evidence

The appellant elected to give evidence at the trial.
In examination‑in‑chief he said that he stopped at the roundabout in Bayly Street to give way. When he saw a clear approach into the roundabout, the cyclist approached from his right. The cyclist came out of dark shadows on the other side of the road and the appellant did not notice him until he was almost in the middle of the road. The appellant stopped and gave way.[24]
[24] ts 181.
The appellant said that the cyclist rode across in front of his vehicle and stopped. The cyclist appeared to be yelling and 'giving me the finger'. He could not hear what the cyclist was saying as he had his radio on loud and his air-conditioning on 'flat out'. The appellant said he had no idea why the cyclist was upset.[25]
[25] ts 184.
The appellant said that he saw the cyclist going up the hill and that he passed the cyclist as he drove along Bayly Street. As he passed, he saw that the cyclist was still giving him 'the finger' and 'carrying on'. He said that he was in a state of disbelief but was not angry.[26]
[26] ts 184.
The appellant said that he did a U‑turn at the intersection of Quarry Street and Bayly Street because he was 'just curious as to why he was behaving in such a manner and thought I would approach him to get an explanation'. He said that his intention was to pull up on the gravel side of the road between the footpath and the kerb.[27]
[27] ts 185 ‑ 186.
The appellant said that as he approached the cyclist he decided to 'forget about it and keep going'. At that point he accelerated before he hit the kerb. He then hit the gravel and 'all the traction was gone'. He said that he did not mean to go as far as the footpath and 'it felt like the car was drifting and forcing me further out than I intended it to turn'. He said that the canvas canopy on the back of the vehicle caused it to 'lean over' when turning. He said he felt that the vehicle was drifting and that the back end had swung out. He felt that the vehicle was 'out of control'.[28]
[28] ts 186 ‑ 188.
The appellant denied that he was trying to collide with the cyclist or give the cyclist a scare or jeopardise his safety. He said that he only saw the cyclist 'a split second before he hit that vehicle'. He believed that the back of his vehicle hit the cyclist and not the front bull bar, however, after seeing paint from the bicycle on the bull bar he was prepared to accept that he may have hit the cyclist from the front. He said that he did not realise at the time that the cyclist was hurt. He said he did not stop because he panicked.[29]
[29] ts 188 ‑ 189.
In cross-examination the prosecutor put to the appellant that his claim that he only saw the cyclist a split second before the collision was not correct. It was put to the appellant that the gestures and yelling by Mr Zimmermann made him angry. It was put to the appellant that his claim that he did not realise the cyclist was badly hurt was inconsistent with what he said to the police when they arrested him. At the end of the cross-examination the following exchange occurred:[30]
[30] ts 201 ‑ 202.
You were angry at this cyclist for giving you the bird and yelling at you, weren't you?---No.
You wanted to get him?---No.
When you drove over that kerb, onto the gravel verge, onto the footpath, you aimed directly at him?---No.
You wanted to knock him off his bike?---No
You said that you didn't notice the cyclist until he stopped in front of you?---Yes.
And he was on the footpath then?---Yes.
Did you take any steering action to try to avoid the cyclist?---No.
Did you try to hit the brakes at all?---No.
And that's because you were aiming directly for that bike to hit that bike to knock him off his bike?---No.
You wanted to get him because you were angry?---No.

Ground 3 - the prosecution closing address

In his closing address the prosecutor dealt with the evidence given by the appellant. He used some colourful language, including suggesting the use of a 'bullshit radar' (though he immediately apologised for using such crude language). He suggested that there were three possibilities: the evidence of the appellant was entirely plausible, it was 'a bit sus' or it was 'absolute bs'. He said that this third category was where the evidence was found to lack credibility, plausibility and believability and ought to be rejected completely.[31]
[31] ts 215 ‑ 216.
The prosecutor went on to analyse the evidence in some detail and compare it to the evidence of other witnesses. He then concluded by noting that the appellant had not attempted to brake or to steer his car away to avoid the cyclist and said 'what category did I suggest that you could put that version by the accused in? Into that third category. You can't accept that as plausible, credible, believable. You can reject his version completely'.[32]
[32] ts 218.

Ground 3 - appellant's submissions

The appellant submits that the prosecutor caused an unfair trial by accusing the appellant of lying in his closing, when he did not put it to him that he was lying in cross-examination. The appellant submits that if the jury is to be invited to disbelieve the accused the grounds upon which the evidence is to be disbelieved should be put to the accused in cross-examination so that the accused has an opportunity to offer an explanation.[33]
[33] WAB 9 ‑ 10.
The appellant further submits that the prosecution split its case by not putting to the appellant that he was lying but alleging it in closing.[34]
[34] WAB 10.

Ground 3 - the merits

This ground, in effect, asserts that the prosecutor breached the rule in Browne v Dunn[35] by failing to put to the appellant during cross-examination that his evidence was untrue or that he was lying and then putting that assertion in his closing address. The implication is that the appellant was deprived of an opportunity to deny the allegation that he was lying and that this has resulted in unfairness to him.
[35] Browne v Dunn (1893) 6 R 67 (HL).
The rule in Browne v Dunn has been described in the following terms: 'unless notice has already been given of the cross-examiner's intention to rely upon such matters, it is necessary to put to an opponent's witness in cross‑examination the nature of the case upon which it is proposed to rely in contradiction of his evidence, particularly where that case relies upon inferences to be drawn from other evidence in the proceedings'.[36]
[36] Allied Pastoral Holdings Pty Ltd v Federal Commissioner of Taxation [1983] 1 NSWLR 1; 44 ALR 607 [623].
The rule does not apply where the witness is on notice that his or her evidence is in contest and notice may come from a variety of sources including the other side's opening and from the general manner in which the case is conducted.[37]
[37] Lazarevic v The State of Western Australia [2007] WASCA 156 [17] (McLure JA, Wheeler JA & EM Heenan AJA agreeing).
In the present case it was obvious from the outset of the trial that the material issue was whether the appellant had deliberately driven his vehicle at Mr Zimmermann with an intent to harm. That was clear from the prosecutor's opening address. That the appellant and his counsel appreciated this is reflected in the questions put to the appellant in evidence-in-chief, which were specifically directed to the issue of intention. The appellant could have been under no misapprehension that his evidence in this regard would be accepted by the prosecution.
In cross‑examination the prosecutor challenged the appellant on matters that directly related to the issue of intent including:
1.whether the appellant had been drinking alcohol;
2.the appellant's manner of driving during the earlier confrontations prior to the collision;
3.whether the appellant was looking at the cyclist after performing the U-turn;
4.the turbo-charged nature of the appellant's vehicle and his familiarity with driving on gravel;
5.the appellant's failure to back off from the accelerator;
6.whether the appellant's back wheels were spinning (as he claimed);
7.whether the appellant was angry because the victim had made gestures and yelled at him; and
8.whether the appellant had deliberately aimed his car at the victim because he wanted to knock him off his bike.
The clear import of the cross-examination was to challenge the appellant's claim that he had not deliberately driven his car at Mr Zimmermann or had an intent to harm him. In challenging the appellant, the prosecutor was plainly suggesting that the appellant's account was untruthful.
The appellant, in effect, submits that, notwithstanding the challenges to his evidence, the prosecutor was obliged to expressly put to him that he was lying. Given that that was the necessary implication of the cross-examination it is difficult to see why such a question was required. It would only have produced the obvious response: a bare denial. Such a denial would have added nothing to the answers that the appellant had already given in cross-examination.
The rule in Browne v Dunn is concerned with substantive unfairness and not with mere formalities. The prosecutor did, in substance, challenge the details of the appellant's account. No possible unfairness arose from the prosecutor not expressly putting to the appellant that he was lying. There is no rule of law requiring the prosecutor to directly accuse the appellant in evidence of lying before being permitted to submit to the jury that the appellant's account of events was false and ought to be rejected.
The suggestion that the prosecution split its case has no arguable basis. The rule against case-splitting is concerned to ensure that the prosecution adduces all evidence of guilt in its own case. There was no evidence adduced in cross-examination of the appellant that should have formed part of the prosecution case. To submit that the appellant's evidence was not plausible, credible or believable did not amount to splitting the prosecution case.
No miscarriage of justice was occasioned by the prosecutor's closing submissions regarding the evidence of the appellant. This ground of appeal is without merit and leave in respect of it should be refused.

Ground 4 - the appellant's cross-examination

In cross-examination the prosecutor put to the appellant that he was angry with Mr Zimmermann. The appellant denied this and the following exchange occurred:[38]
[38] ts 196.
So according to you, you had done nothing to cause any aggravation to this cyclist?---No.
And here's this cyclist giving you the finger about three times?---Yes.
And according to you, was yelling at you?---I believe so.
That made you angry, didn't it?---No.
Well, did you - after you were arrested, did you - did you speak to any family members about this incident?---No.
FLYNN DCJ: So when you say family members, who are you speaking about? Which - - -
HOBSON, MR: Sorry. Your family members?---After I was arrested?
Yes?---I've spoken to them since.
Yes. Did you say anything to them about the incident?---Not - I can't remember that far back. No.
When you spoke to your family members, you were - you were in - you hadn't got bail at that time. You were still in - locked up. Is that correct?---So over the phone?
Yes, over the phone?---Yes.
Yes. And did you have a conversation with any family member over the phone about this incident?---I don't recall.
You don't recall. Do you like cyclists on the road?---Sure.
They don't upset you?---No.
Your thought isn't that you don't like them riding on the road. They get in the way. But you say you didn't get angry at all with this man who is giving you the finger and yelling at you?---No.
No evidence of a conversation between the appellant and members of his family was produced in evidence and nothing more was said about such a conversation.

Ground 4 - the appellant's submissions

The appellant submits that the prosecutor caused an unfair trial by asking the appellant in cross-examination whether he had a telephone call with family members while in custody and by implying that in that call the appellant had said that he did not like cyclists on the road because they get in the way.[39]
[39] WAB 10.
The appellant submits that the prosecutor suggested in the cross‑examination that the appellant had made remarks of this nature to family members, and this showed a predisposition to irritation or anger towards cyclists in general. It is contended that this suggestion contradicted the appellant's evidence and thereby undermined his credibility. It is also suggested that the prosecutor's questions amounted to positive evidence that should have been led as part of the prosecution case. It is submitted that the prosecution thereby split its case impermissibly.[40]
[40] WAB 10.

Ground 4 - the merits

This ground of appeal depends upon the drawing of an implication from the evidence, rather than from any express assertion.
The prosecutor cross-examined the appellant as to whether he had become angry as a result of the victim's conduct. He asked the appellant whether he had had a telephone conversation with any family member whilst he was remanded in custody. The appellant said that he did not recall any such conversation. That line of cross-examination then ended.[41]
[41] ts 196.
The prosecutor did not state as a positive fact that there was such a conversation, or that it related to this matter or that there was any record of such a conversation. It was not put to the appellant that he had stated in a telephone conversation that he disliked cyclists on the road. That was the next proposition put, but it was put as a general statement, not as something that the appellant had said to a member of his family in a telephone conversation.
Counsel for the appellant conceded at the hearing of the appeal that this ground depended entirely upon a conclusion being drawn from the juxtaposition of the questions regarding the telephone conversation with the next series of questions regarding whether the appellant liked cyclists on the road. The appellant submits that this juxtaposition carried with it an insinuation that he had said something about disliking cyclists in a telephone call.[42]
[42] Appeal ts 11 ‑ 12.
No fair reading of the cross-examination supports the proposition that the prosecutor was stating as a fact (either expressly or by implication) that the appellant had expressed a general dislike of cyclists to a family member during a telephone call. When the appellant stated that he could not recall any conversation with members of his family whilst he was on remand, the prosecutor simply moved to another topic. It is also noteworthy that experienced defence counsel did not object to the cross-examination or raise any concern about it with the trial judge.
It is common for cross-examination to cover a range of topics. Some lines of cross-examination may be fruitful while others are not. There was no stated or implied link between the two topics and to draw such a link merely from the fact that one topic followed the other would be speculative. The jury were specifically warned by the trial judge not to speculate about things that were not in evidence. There is no reason to think that that direction was ineffective.
As noted earlier, the rule against case splitting is concerned to ensure that the prosecution adduces all its evidence in its own case. The rule can be infringed by the introduction of additional evidence of guilt in the course of cross-examination. Even if the prosecutor had put to the appellant that he had said in a telephone call to a family member that he disliked cyclists such a question would not be objectionable. If the appellant denied it and no other evidence was adduced the matter would end there. In this case no evidence of the contents of any telephone conversation between the appellant and members of his family was introduced. Questions are not evidence.

This ground of appeal is founded upon a tendentious interpretation of the cross-examination. No unfairness arose and the prosecutor did not split the prosecution case. This ground of appeal has no reasonable prospect of success and leave in respect of it should be refused.

Appeal against sentence - the grounds

There were initially two grounds of appeal against sentence. Ground 1 was abandoned. An application was made at the hearing to add a third ground. A decision on that application was reserved, but the appellant was permitted to fully argue the proposed ground. We will refer to the additional proposed ground as ground 3.[43]
[43] Appeal ts 17‑18.
The extant grounds (or proposed grounds) are as follows:
(2)The sentence was manifestly excessive; and
(3)His Honour was wrong in law in finding that the appellant had an actual subjective intention to endanger the life of the victim.
Counsel for the appellant clarified that ground 1 relates to the sentence of 8 years' imprisonment imposed on count 1. It was accepted that the additional 6 months' imprisonment imposed in respect of counts 3 and 4 was appropriate and that any concern regarding the total effective sentence arose entirely from the sentence imposed on count 1.[44]
[44] Appeal ts 15 ‑ 16.

Personal Circumstances of the Appellant

At the time of sentencing the appellant was about to turn 52. He is the father of three children to whom he remains close. He lost his father to cancer in the August preceding the trial and was the carer for his mother for a long period before she went into a nursing home. He has a younger sister, who wrote a character reference for him.[45]
[45] ts 300.
The appellant suffered financial impact as a result of providing assistance to his father and mother and this led to the loss of his house, which was repossessed.[46]
[46] ts 300.
The appellant is a qualified painter and has a good work history. Before becoming his mother's carer he had worked as a trainer in a correctional services facility for seven years.[47]
[47] ts 300.
The appellant has a record of driving-related offences, including reckless driving, but these offences occurred in 1987 and 1988, when he was a much younger man. There has been no other offending for more than thirty years.[48]
[48] ts 300.

Victim Impact

At the time of the collision Mr Zimmermann was 31 years of age. He had done military service in Germany and worked as an apprentice restaurant specialist. He had also worked as a wind power technician and had plans to return to the wind power industry in Germany. His interest in wind power arose from a commitment to addressing climate change, and that was one of the reasons he was riding a bicycle on the day of the incident. He came to Australia in 2019 to work and travel.[49]
[49] ts 298.
Prior to the incident Mr Zimmermann was very physically active. He was involved in martial arts, including having reached black belt level. After the accident he quickly realised that he could not move and felt despair, sadness and a fear of never being able to move again.[50]
[50] ts 298.
Mr Zimmermann suffered a very long list of injuries, including tetraplegia, which has impaired his movement and sensation in all four limbs. He has no muscular control below his chest and minimal fine movements in both hands. He is now confined to a wheelchair. He has suffered psychiatric injuries as a result of the collision, including post‑traumatic stress disorder and depression. He spent an extended period in hospital engaged in rehabilitation.[51]
[51] ts 298.
Mr Zimmermann's inability to partake in physical or recreational activities and his dependence on his wife for his care has caused him to suffer depression and lack of motivation. He has been unable to work since the collision and has lost the ability or the prospect of resuming employment in his chosen field.[52]
[52] ts 298 ‑ 299.

The sentencing remarks

The learned sentencing judge made comprehensive sentencing remarks. This included making findings of fact.
Whilst his Honour was unable to make a finding as to what had occurred at the roundabout, he did conclude that what followed was that Mr Zimmermann made a number of gestures and yelled at the appellant in German. His Honour found that the appellant, after driving down Bayly Street and doing a U-turn, approached Mr Zimmermann who was riding on the footpath. He found that the appellant crossed from the correct side of Bayly Street to the incorrect side, mounted the concrete kerb and continued to drive on the verge for a distance of 12 metres before making contact with Mr Zimmermann and his bicycle on the concrete footpath. The initial contact was with the front driver's side bull bar of the appellant's vehicle. After that contact the appellant continued to drive and there was further contact, including a wheel or wheels of the appellant's vehicle running over Mr Zimmermann's bicycle.[53]
[53] ts 290 ‑ 291.
The sentencing judge did not accept the appellant's evidence that he was only travelling at a little over 20 km per hour. The steering mechanism and brakes of the appellant's vehicle were in serviceable condition and the appellant had control of his vehicle except to the extent that there was some loss of traction of the rear wheels on the gravel of the verge and the rear of the vehicle moved slightly to the right as a result of oversteering. Notwithstanding those matters, the appellant did not reduce his acceleration and did not apply his brakes before the collision. The matters referred to did not affect the ability of the appellant to control the line of travel of his vehicle by steering it.[54]
[54] ts 293 ‑ 294.
His Honour did not accept that the appellant had only seen Mr Zimmermann a second before the collision. His Honour was satisfied beyond reasonable doubt that the appellant saw Mr Zimmermann after he completed the U-turn and had him in his sight as he commenced back down Bayly Street and towards Mr Zimmermann.[55]
[55] ts 294.
His Honour then made findings regarding the appellant's state of mind. He noted that the State case was that the act was done either with intent to unlawfully cause bodily harm (s 304(3)(a) of the Code), or with intent to unlawfully endanger the life, health or safety of another (s 304(3)(b) of the Code). He noted that the defence had submitted that the appellant had intent to unlawfully endanger the safety of Mr Zimmermann and nothing more. The defence supported this claim with two arguments. First, that the evidence at trial was inconsistent with an intention to cause bodily harm or endanger the life of Mr Zimmermann. Secondly, the State had not requested a special verdict and as a result the sentence must be based on the facts most favourable to the appellant.[56]
[56] ts 295.
As to the second matter his Honour said that so long as the findings of fact that he made were consistent with the verdict, those findings are to be made on the whole of the evidence and he was not required to take a view which was most favourable to the appellant.[57]
[57] ts 295.
His Honour then made the following findings in respect of intention:[58]
Relevant to whether or not I'm satisfied beyond reasonable doubt that the inference to be drawn as to Mr Meadowcroft's intention at the time he engaged in the acts which I accept the jury have found proven includes that the line of travel of Mr Meadowcroft was in an arc, what I describe as a crescent.
That finding is consistent with a reasonable possibility that Mr Meadowcroft's intention was for the front of his vehicle not to make contact with Mr Zimmermann. That line of travel is consistent with a reasonable possibility that Mr Meadowcroft's intention was that his intention at least at the commencement of that journey was that his vehicle come close to Mr Zimmermann's bicycle.
I'm not satisfied beyond reasonable doubt that for the duration of the journey which is the act alleged by the State there was an intent to cause bodily harm on the part of Mr Meadowcroft.
I am satisfied beyond reasonable doubt that there was an intention at the time of driving from the time that Mr Meadowcroft executed his U-turn to the time that there was contact between Mr Meadowcroft's vehicle and Mr Zimmermann's bicycle, that Mr Meadowcroft had an intention to endanger the life of Mr Zimmermann.
The evidence of the loss of control or the lack of control of Mr Meadowcroft's vehicle to which I have already referred, loss of traction, a slight rear movement to the right of Mr Meadowcroft's vehicle did not interfere on my finding with the ability of Mr Meadowcroft to control his vehicle by steering it, that is its direction, or to slow it down by applying his brakes or decelerating.
The fact that Mr Meadowcroft deployed the steering to direct the vehicle onto the concrete path and so close to Mr Zimmermann that ultimately there was contact speaks to the intention of Mr Meadowcroft to endanger the life of Mr Zimmermann.
The fact that Mr Meadowcroft had the means available to slow his vehicle, apply the brakes and did not do so speaks to the intention of Mr Meadowcroft to endanger the life of Mr Zimmermann. Mr Meadowcroft will be sentenced on the basis that he intended throughout the act which is alleged by the State to intend to endanger the life of Mr Zimmermann.
[58] ts 296 ‑ 297.
His Honour was satisfied that the appellant knew that there had been contact between his vehicle and Mr Zimmermann. However, he accepted that the appellant believed that expert assistance was likely to arrive soon. He also accepted the appellant's claim that panic was his reason for leaving the scene.[59]
[59] ts 297.
In assessing the seriousness of the offence, his Honour said that the intention of the appellant to endanger the life of Mr Zimmermann combined with the act of driving 'speaks to the singular serious example of this particular offence'. His Honour said that the potential for harm which was inherent in the appellant's act did manifest itself in the serious injuries suffered by Mr Zimmermann. His Honour accepted that the appellant did not plan his actions before commencing his journey that day, rather he overreacted to a trivial offensive gesture by Mr Zimmermann.[60]
[60] ts 299.
His Honour accepted that the appellant had demonstrated remorse by his pleas of guilty to counts 3 and 4 and his offer to plead of guilty to count 2. His Honour also accepted that the appellant was largely of prior good character and that specific deterrence was not a significant sentencing consideration. He accepted that offending of this type was unlikely to occur again. He reached that conclusion notwithstanding that the appellant had prior convictions for alcohol-related driving offences. Those convictions were at a time when the appellant was a much younger man. His Honour also accepted that the appellant's prospects for rehabilitation were good.[61]
[61] ts 301.
His Honour made specific reference to the appellant's history of employment with the Department of Correctional Services and the impact it would have on any sentence of imprisonment:[62]
Another factor which is relevant to mitigation is the evidence establishes that as a result of your previous employment, relatively lengthy employment for seven years in the Department of Corrections, your time in custody will be served in a protection status and that will not be served in Greenough Regional Prison, that it will be more difficult for you to have in person visits with family and friends who live in Geraldton.
But probably more significantly, for the foreseeable future, you will serve your time in custody in the special protection unit at Casuarina Prison. You will be denied the opportunity for the foreseeable future to spend time in a minimum security environment where you could expect to have more movement and that's only because of your particular circumstances. That is, you were employed in the prison system.
Your time in custody will be more arduous and that warrants reduction because in my assessment, it equates to a longer term so objectively, the purposes of the sentence including general deterrence can be served with a shorter sentence. There may well be risks to you as a result of your previous employment. That's relevant to me as well.
[62] ts 301 ‑ 302.

Appellant's submissions

As regards ground 2, the appellant submits that there is no tariff for offending under s 304 of the Code. However, it is suggested that the sentence of 8 years' imprisonment on count 1 is manifestly excessive having regard to the circumstances of the case, the personal circumstances of the appellant and to sentences imposed in comparable cases.[63] In this regard the appellant referred to Vander Waide v The State of Western Australia,[64] Frances v The State of Western Australia,[65] Burn v The State of Western Australia,[66] Brewerton v The State of Western Australia[67] and Lyons v The State of Western Australia.[68]
[63] WAB 37.
[64] Vanderwaide v The State of Western Australia [2019] WASCA 148.
[65] Frances v The State of Western Australia [2019] WASCA 43.
[66] Burn v The State of Western Australia [2022] WASCA 64.
[67] Brewerton v The State of Western Australia [2017] WASCA 191.
[68] Lyons v The State of Western Australia [2022] WASCA 81
As regards proposed ground 3, the appellant submits that his Honour found that there was a reasonable possibility that the appellant did not intend that the front of his vehicle would make contact with the victim. In these circumstances it is submitted that there should have been a finding of an intent to endanger the safety of the victim rather than an intent to endanger his life. The implication is that the intention as found by his Honour was more serious and was not open to be found beyond reasonable doubt on the available evidence.[69]
[69] Appeal ts 17 - 18.
The appellant also sought to draw support for his argument on ground 3 from Wongawol v The State of Western Australia.[70] That was a case dealing with an appeal against sentence for the offence of murder under s 279(1)(b) of the Code. Section 279(1)(b) provides that if a person unlawfully kills another person and intends to cause a bodily injury of such a nature as to endanger, or be likely to endanger, the life of the person killed or another person, the person is guilty of murder. An issue arose in that case regarding the proper construction of s 279(1)(b), in particular whether the intention required was wholly subjective. McLure P held that the section contains subjective and objective elements. That is, it requires a subjective intention to cause bodily injuries that, objectively, are of such a nature as to endanger, or be likely to endanger, life. The words 'of such a nature' were of critical importance in coming to this conclusion.[71]
[70] Wongawol v The State of Western Australia [2011] WASCA 22; (2011) 42 WAR 91.
[71] Wongawol v The State of Western Australia [23] - [25] (McLure P, Buss JA & Mazza J agreeing).
The appellant argued that, by analogy, s 304(2) has both subjective and objective elements. That is, that the intent to harm is subjective but the result, being bodily harm or the endangerment of life, health or safety, is objective. On this reasoning the appellant submitted that the sentencing judge was in error in finding that the appellant had subjectively intended to endanger the life of Mr Zimmermann.[72]
[72] Appeal ts 19.

Proposed ground 3 - the merits

It is convenient to deal first with proposed ground 3.
Section 304(2) of the Code provides:
(2)If a person, with intent to harm, omits to do any act that it is the person's duty to do, or does any act, as a result of which -
(a)bodily harm is caused to any person; or
(b)the life, health or safety of any person is or is likely to be endangered,
The person is guilty of a crime and is liable to imprisonment for 20 years.
In this case the result was not in issue. There was no dispute that the injuries incurred by Mr Zimmermann were (at least) bodily harm. The only issue in dispute was whether there was an intent to harm. The verdict of the jury established beyond reasonable doubt that the appellant had an intent to harm at the relevant time.
An intent to harm for the purposes of s 304(2) is defined in s 304(3), which provides:
(3)For the purposes of subsection (2) an intent to harm is an intent to -
(a)unlawfully cause bodily harm to any person; or
(b)unlawfully endanger the life, health or safety of, any person; or
(c)induce any person to deliver property to another person; or
(d)gain a benefit, pecuniary or otherwise, for any person; or
(e)cause a detriment, pecuniary or otherwise, to any person; or
(f)prevent or hinder the doing of an act by a person who is lawfully entitled to do that act; or
(g)compel the doing of an act by a person who is lawfully entitled to abstain from doing that act.
Any of the intents referred to in s 304(3) will, if established beyond reasonable doubt, prove an intent to harm and expose the offender to the maximum penalty of 20 years' imprisonment provided by s 304(2). There is no hierarchy in s 304(3). The relative seriousness of one offence of this type as compared to another offence will depend on the particular circumstances of the case.
The verdict of the jury established that there was an intent to harm, but not the nature of that intent. That was, therefore, a matter upon which it was open to the sentencing judge to make a finding. The sentencing judge was not obliged to make a finding that was most favourable to the appellant. The sentencing judge could make such findings as he considered appropriate having regard to the evidence, subject only to the requirement that any finding that was aggravating must be established beyond reasonable doubt.
The fact that one of the results referred to in s 304(2) is the endangerment of the life, health or safety of another person does not mean that a subjective intent to endanger the life of another is not relevant, either in proving the offence or as a factor in sentencing. Subsections 304(2) and (3) distinguish between the act or omission, the intention with which it is done and the result of the act or omission. In suggesting that it was not open for the sentencing judge to conclude that the appellant had a subjective intention to endanger the life of Mr Zimmermann the appellant has conflated the result with the intention. The appellant's reliance on Wongawol in this regard is misplaced. Not only is a subjective intention to endanger life one of the ways in which an intent to harm can be proved, it is also a factor that is clearly relevant to sentence. The nature of the intent, when viewed together with the factual circumstances of the case, will be relevant in determining the seriousness of the offence.
In the present case, having regard to the factual findings made by the trial judge (see [89] ‑ [91]), his Honour's findings regarding the intent of the appellant were plainly open. In particular, his Honour found that the appellant was at all times in control of the vehicle and that he saw Mr Zimmermann after completing a U-turn and as he drove towards him. His Honour found that the appellant intended to drive close to Mr Zimmermann and, even if he did not intend to hit him, he did intend to drive in a manner that endangered the life of Mr Zimmermann. Having regard to the fact that the driving involved crossing the road, mounting the kerb, driving across the gravel verge and towards a cyclist on the footpath, that conclusion was, with respect, irresistible.
There is no merit in proposed ground 3 and leave to add that ground should be refused.

Ground 2 - the merits

An allegation that a sentence is manifestly excessive is an assertion of implied error. In order to make out such a ground it must be established that the sentence imposed was not properly open to the sentencing judge. Having regard to the fact that sentencing is a discretionary exercise, it is not sufficient for an appeal court to form a view that it would have imposed a different sentence. The proper question is whether the sentence was open to be imposed having regard to the maximum penalty, the circumstances of the offence, the personal circumstances of the offender and sentences imposed in comparable cases.

Comparable cases provide a yardstick or reference point against which a sentence can be measured. They provide an indication of the sentences customarily imposed for an offence of the type in question. However, comparable cases do not set the bounds within which discretion can be exercised. It must be borne in mind that there is scope for significant variations in relevant sentencing factors. When this court dismisses an appeal or resentences on a successful appeal, its decision does not fix the upper or lower limits of the sentences that can be imposed.
The maximum penalty for the offence of doing an act, with intent to harm, as a result of which bodily harm is caused, contrary to s 304(2) of the Code, is imprisonment for 20 years.
As regards the circumstances of the offence, there are generally three factors that are relevant to sentencing for an offence under 304(2) of the Code, namely (1) the nature and seriousness of the offender's intent to harm, (2) the nature and seriousness of the bodily harm caused to the particular victim or the severity and other circumstances of the actual or likely endangering of the particular victim's life, health or safety as the case may be, and (3) the potential (as distinct from actual) consequences of the offender's conduct.[73]
[73] Hinkley v The State of Western Australia [2014] WASCA 122 [18].
His Honour was satisfied beyond reasonable doubt that the appellant intended to endanger the life of Mr Zimmermann. Performing an act with an intention to endanger the life of another may give rise to a real risk that death will occur as a consequence of that deliberate act. The risk in this case was particularly high given the fact that the appellant was driving his relatively large and powerful vehicle directly at the victim who, because he was riding a bicycle, was effectively defenceless against such an act. The risk of death was significant and aggravates the offending.
As to the harm suffered by the victim, the injuries inflicted amount to a very serious example of grievous bodily harm, let alone bodily harm (which is all that is required by s 304(2)). Mr Zimmermann is now a tetraplegic, with no movement in his lower limbs and only limited movement in his arms. He has no muscular control below his chest and only possesses minimal fine movement in his hands. His injuries required him to spend almost a month in Royal Perth Hospital and almost four months in a rehabilitation facility. He will suffer physical and functional impairment for the rest of his life, the impact of which is compounded by the fact that he is still a young man. In addition, Mr Zimmermann also suffers from post‑traumatic stress disorder and depression. It is accurate to describe his injuries as catastrophic.
As to the potential (as distinct from the actual) consequences of the offending, the potential for Mr Zimmermann to have been killed is readily apparent from the appellant's manner of driving a turbo-charged vehicle equipped with a bull bar at a cyclist. This significantly increases the seriousness of the appellant's offending.
The personal circumstances of the offender have been referred to at [80] ‑ [83]. The appellant has a good work history and good prospects of rehabilitation. His past employment in the Corrective Services Department was relevant in that it might put him at greater risk of harm and make a term of imprisonment more onerous (particularly because he could not serve his term at a facility close to his family). The appellant did not plead guilty to count 1 and, thus, though he had expressed regret for what had happened to Mr Zimmermann, he had not accepted full responsibility for it. He had made some admissions and the utilitarian benefit of that was deserving of some credit. Apart from those factors there was little by way of mitigation.
As to comparable cases, in the recent case of Cheeseman v The State of Western Australia[74] this court said:
Because of the wide variety of circumstances in which offences against s 304(2) of the Code occur, and of the offenders who commit them, there is no sentencing tariff for such offences. As this court observed in Popal, the cases reveal that a wide range of sentences have been imposed for offences contrary to s 304(2) of the Code and that, in some cases, substantial individual sentences have been imposed or upheld on appeal. For example, in Kaokula, a sentence of 6 years 2 months' imprisonment was found not to be manifestly excessive; in Vander Waide v The State of Western Australia, a sentence of 7 years' imprisonment was found not to be manifestly excessive; and in Popal, in resentencing, this court imposed a sentence of 6 years' imprisonment on one of the offences under s 304(2). (footnotes omitted)
[74] Cheeseman v The State of Western Australia [2023] WASCA 78 [84]
In addition to the cases referred to in Cheeseman we have also considered Penny v The State of Western Australia,[75] Sophiadakis v The State of Western Australia,[76] Kaokula v The State of Western Australia,[77] Chikonga v The State of Western Australia,[78] McAllister v The State of Western Australia[79] and Ugle v The State of Western Australia.[80] Those cases illustrate the wide range of conduct that can be the subject of s 304(2) offences.
[75] Penny v The State of Western Australia [2016] WASCA 173.
[76] Sophiadakis v The State of Western Australia [2016] WASCA 203.
[77] Kaokula v The State of Western Australia [2016] WASCA 198.
[78] Chikonga v The State of Western Australia [2017] WASCA 34.
[79] McAllister vThe State of Western Australia [2017] WASCA 18.
[80] Ugle v The State of Western Australia [2018] WASCA 16.
The most closely comparable case is that of Vander Waide. In that case the offender was convicted after trial of a number of offences, the most serious of which was an offence under s 304(2). That offence involved the offender driving a four-wheel drive at speed towards a group of motor cyclists who were travelling in the same direction. He hit one motorcycle causing damage to it and then drove into another motorcycle, intending to endanger the life, health and safety of the rider. As a result of the collision the rider suffered very significant injuries, including fractures to his neck (though, fortunately, not causing paralysis). The offender drove off without rendering assistance or reporting the incident. The offender was sentenced to 7 years' imprisonment for the s 304(2) offence and a total effective sentence of 9 years and 3 months' imprisonment.
Whilst one case cannot set any standard for sentencing, Vander Waide provides no support for the appellant's contention that the sentence imposed in this case was manifestly excessive.
As to the other cases referred to by the appellant, they are not meaningfully comparable. Frances, Burn and Brewerton all involved offenders who were convicted of manslaughter, albeit that they were offences involving the driving of a motor vehicle. Lyons involved an offender who was convicted of dangerous driving occasioning death. There is no utility in comparing cases that relate to a different offence, particularly offences that do not involve an element of an intent to harm. Those cases provide no yardstick or reference point for ensuring consistency of sentencing for offences under s 304(2).
The fact that there are few truly comparable cases does not mean that this court cannot determine whether the sentence is, or is not, manifestly excessive. It simply means that one of the factors relevant to that question is (largely) absent. However, the other factors, being the maximum penalty, the circumstances of the offence and the personal circumstances of the appellant remain relevant.
There is no doubt that the sentence of 8 years' imprisonment imposed on count 1 was a severe one. However, having regard to the circumstances of the offence and the catastrophic consequences for the victim that sentence was appropriate. Furthermore, the severity of the sentence was moderated by the fact that the sentences imposed on counts 3 and 4 were only cumulative to the extent of 6 months' imprisonment.
This was an offence involving a deliberate act intended to harm the victim. That places it into a more serious category than driving offences involving mere negligence. There is also a particular need for general deterrence in respect of offences of 'road rage'. The ubiquity and wide availability of cars and the dangers inherent in them being used as a weapon against others demands that offences of this nature be firmly deterred.
Whilst we would grant leave to appeal in respect of ground 2, that ground does not succeed.

Conclusion

None of the grounds of appeal against conviction have a reasonable prospect of success and the appeal against conviction must be dismissed.
Ground 2 of the appeal against sentence should be the subject of a grant of leave but the appeal against sentence must be dismissed. Leave to amend the grounds of appeal against sentence by adding ground 3 should be refused.

Orders

CACR 53 of 2022

Leave to appeal on grounds 1 to 4 refused.
Appeal dismissed.

CACR 54 of 2022.

Leave to amend the grounds of appeal by adding proposed ground 3 refused.
Leave to appeal on ground 2 granted.
Appeal dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
JS
Associate to the Honourable Justice Hall
21 JUNE 2023