Moore v Russell - [2020] WASC 413

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   MOORE -v- RUSSELL [2020] WASC 413
CORAM:   TOTTLE J
HEARD:   20 AUGUST 2020
DELIVERED          :   17 NOVEMBER 2020
FILE NO/S:   SJA 1151 of 2019
BETWEEN:   RICHARD STEPHEN MOORE
Appellant
AND
SHANE LAURENCE RUSSELL
Respondent

ON APPEAL FROM:
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE T HALL
File Number            :   AR 13533 of 2018

Catchwords:

Criminal law - Appeal against conviction - Dangerous driving contrary to s 61 of the Road Traffic Act 1974 (WA) - Where errors in fact finding alleged - Appellate review of factual findings - No appellable error - Appeal dismissed

Criminal law - Appeal against sentence for first offence of dangerous driving by police officer - Whether sentence was manifestly excessive - Whether personal deterrence a relevant factor - Appeal allowed - Appellant resentenced

Legislation:

Criminal Appeals Act 2004 (WA), s 9(2)
Criminal Code (WA)
Road Traffic Act 1974 (WA), s 61, s 61A

Result:

Leave to appeal on grounds 1, 2, 3, 4 and 5 refused
Leave to appeal on ground 6 granted
Appeal against sentence allowed
Appellant resentenced

Category: B

Representation:

Counsel:

Appellant	:	L B Black
Respondent	:	P A Femia

Solicitors:

Appellant	:	Tindall Gask Bentley Lawyers
Respondent	:	State Solicitor for Western Australia

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

Boult v Williams [2019] WASC 98
City of Armadale v Neerigen Brook Estate Pty Ltd [2020] WASC 137
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
Evans v Richards [2015] WASC 53; (2015) 248 A Crim R 489
House v The King [1936] HCA 40; (1936) 55 CLR 499
Joyce v Anderson [2020] WASCA 48; (2020) 91 MVR 334
Lee v Lee [2019] HCA 28; (2019) 266 CLR 129
Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665
Minister for Immigration, Local Government and Ethnic Affairs v Hamsher (1992) 35 FCR 359
Nguyen v The State of Western Australia [2019] WASCA 56
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Slade v The State of Western Australia [2019] WASCA 65
Wintle v Dean [2012] WASC 165

TOTTLE J:

On 28 October 2019 the appellant was convicted of one charge of dangerous driving contrary to s 61 of the Road Traffic Act 1974 (WA) (RTA). The magistrate imposed a fine of $2,500, ordered the appellant to pay costs and made a spent conviction order. The appellant seeks leave to appeal against the conviction and the imposition of the fine.

The facts

The critical facts may be summarised as follows. The appellant is a police officer. On the afternoon of 6 May 2018 he was on official duty. Together with Senior Sergeant Heather Osborne, the appellant was attempting to arrest a person (Mr Farmer) who had been reported as having acted suspiciously in the suburb of Thornlie. The appellant and Senior Sergeant Osborne saw Mr Farmer in Wilfred Road, Thornlie. They got out of their unmarked police vehicle (a Toyota Kluger). Mr Farmer ran away. Senior Sergeant Osborne and the appellant gave chase. The appellant fell over and injured his elbow and chest. Senior Sergeant Osborne continued the pursuit of Mr Farmer and the appellant returned to the vehicle.
Senior Sergeant Osborne pursued Mr Farmer along Wilfred Road in the direction of a roundabout at the junction of Wilfred Road and Oriole Way. When he reached the roundabout Mr Farmer made an unsuccessful attempt to get into a car (the Quartermaine car). The appellant drove the police vehicle to the roundabout. The appellant and Senior Sergeant Osborne had obtained control of Mr Farmer and succeeded in putting a handcuff on his left arm. Mr Farmer broke free and went back down Wilfred Road (away from the roundabout) towards the junction of Wilfred Road and Dove Street. He was followed on foot by Senior Sergeant Osborne, who was close behind him. They were walking along the left hand side of Wilfred Road though Mr Farmer was close to the centre of the road. There was a sedan car travelling towards them in the direction of the roundabout on the opposite side of the road. There was a green car on Dove Street close to the junction with Wilfred Road.
As Mr Farmer approached the junction of Wilfred Road and Dove Street the appellant drove the vehicle alongside Mr Farmer and then turned the vehicle 'very quickly and very sharply' (as the magistrate found) to the left. The vehicle collided with Mr Farmer, knocking him over.
It was the act of turning the vehicle 'very quickly and sharply' that the magistrate found was dangerous driving. The magistrate accepted that the appellant had not intended to hit Mr Farmer with the vehicle and that the appellant's intention was to block Mr Farmer's path so that he could be arrested. The magistrate's fact finding task was aided by the existence of a video recording of the driving that was the subject of the charge.

The appellant's case at trial

At trial in broad terms there were two strands to the appellant's case. First, the appellant contended there was an urgent need to arrest Mr Farmer in order to protect the public. It was argued that Mr Farmer was armed, it was contended that the handcuff constituted a weapon, and that earlier he had tried to 'carjack' passing cars and the appellant was concerned that he would attempt to do so again by getting into the green car. It was argued that when regard was had to these circumstances the appellant's driving was not dangerous. Second, it was contended that the appellant was able to avail himself of the defence under s 61A of the RTA. That is, it was contended that the appellant was on official duty and driving substantially in accordance with the guidelines and policies of the Commissioner of Police and, having regard to all of the circumstances of the case, it was reasonable and in the public interest for the appellant to have driven the vehicle in the manner that he did.

The appellant's case on appeal

The appeal against conviction relies on five grounds of appeal that are supported by a total of 30 particulars. The grounds overlap and the particulars are repetitive. In broad summary, the appellant's case on appeal is that the magistrate erred in finding that the circumstances in which the driving took place were not attended by the degree of urgency and danger to the public described by the appellant and, to a lesser extent, by Senior Sergeant Osborne in their evidence.
The appellant seeks leave to appeal against the imposition of the fine of $2,500 on the basis that the fine is manifestly excessive.

The relevant statutory provisions

The RTA, s 61 relevantly provides:
61. Dangerous driving
(1)Every person who drives a motor vehicle in a manner (which expression includes speed) that is, having regard to all the circumstances of the case, dangerous to the public or to any person commits an offence.
Section 61A provides a defence for police officers as follows:
61A. Defence for police officers driving in reckless manner in certain circumstances
(1)It is a defence to a prosecution for an offence against section 59(1)(b), 59A(1)(b), 60(1A) or 61(1) if the accused satisfies the court that, at the time of the alleged commission of the offence -
(a)the accused was on official duty as a police officer; and
(b)the driving was substantially in accordance with the Commissioner's policies and guidelines relating to driving, applicable at the time of the driving, and any direction given under such a policy or guideline; and
(c)having regard to all of the circumstances of the case, it was reasonable, and in the public interest, for the accused to have driven the motor vehicle in the manner that he or she did.
(2)Subsection (1) does not affect the application of any other defence the accused may have.

The magistrate's reasons

The trial was held on 28 and 29 August 2019. The magistrate reserved his decision and on 28 October 2019 delivered detailed and comprehensive oral reasons for finding the appellant guilty of the charge. At the same hearing the magistrate heard a plea in mitigation and made the orders referred to earlier.
The magistrate recorded those facts which were not in dispute as follows:[1]
The day, date, time and location are not in dispute. And it's not in dispute that the police wanted to speak to Mr Farmer following a report of a suspicious person in the area.
It's not in dispute that Mr Farmer ran away from police. It's not in dispute that Senior Sergeant Moore fell over while chasing Mr Farmer and so Senior Sergeant Osborne chased after him. It's not in dispute that Mr Farmer tried to stop a car at the roundabout and opened the rear car door of another vehicle travelling through the roundabout. It's not in dispute that Senior Sergeant Moore drove up to the roundabout. It's not in dispute that Mr Farmer was told he was under arrest for suspicion.
It's not in dispute that Senior Sergeant Moore and Senior Sergeant Osborne attempted to handcuff Mr Farmer up against the Kluger: that Senior Sergeant Moore got one handcuff on, but that Mr Farmer managed to get free and run off back down the road.
It's not in dispute that Senior Sergeant Osborne followed Mr Farmer on foot back down the road and that they had slowed to a walk by this stage. It's not in dispute that backup was cancelled when Senior Sergeant Moore pulled up to the roundabout, but when he got back in the vehicle backup was called for again. It's not in dispute that Senior Sergeant Moore drove the Kluger back down the road to where Mr Farmer and Senior Sergeant Osborne were and parked in a driveway. It's not in dispute that Mr Farmer had been headed back up the road with Senior Sergeant Osborne still close behind him.
It's not in dispute that Senior Sergeant Moore had then driven up the road - up the wrong side of the road alongside Mr Farmer and that Mr Farmer has looked over his shoulder and seen him and turned left towards Dove Street on foot. And it's not in dispute that Senior Sergeant Moore had then turned the Kluger sharply to the left making contact with Mr Farmer, who has then landed on the ground.
[1] ts, 28 October 2019, 4 - 5.
Having reminded himself that in determining the facts the question was not which of the competing versions he preferred but whether the prosecution have proven the elements of the charge beyond a reasonable doubt, the magistrate summarised the competing versions as follows:[2]
The prosecution's version of the facts is, essentially, this. Yes, Mr Farmer may have been an arrestable suspect. Yes, he ran off on police. Yes, he tried to stop a car and open the car door at the roundabout, but that was not carjacking. Yes, he ran off with a handcuff on, but that was not being armed with a weapon. Yes, he did evade arrest, but he was exhausted. He was not violent. He was not dangerous. He was not a threat to any person. Seemingly, Sergeant Osborne was close behind him. Backup was coming and he wasn't going anywhere fast.
Senior Sergeant Osborne had correctly assessed the situation as being that force options were not required and all she had to do was stay with him and that when Senior Sergeant Moore drove alongside Mr Farmer in the Kluger and Mr Farmer turned left towards Dove Street, Mr Farmer was not attempting to carjack the green car in Dove Street. He was merely turning to get away from the Kluger that was heading for him and that for Senior Sergeant Moore to sharply turn the Kluger that it was in such close proximity to Mr Farmer that was, in all the circumstances, dangerous to Mr Farmer.
The defence case on the other hand is that Mr Farmer was a potential burglar, casing houses to do burglary: that he ran from police: that he attempted to open someone's gate to get into their property: that he attempted to carjack a car on the way up to the roundabout: that he tried to carjack two vehicles at the roundabout: that he resisted police attempts to handcuff him: that he struggled with police and ran off with one handcuff on: that as a result he was now armed with a weapon, being the handcuff: that Senior Sergeant Osborne and members of the public's safety was at risk: that Senior Sergeant Osborne could not use force options because she was on her own with him and that the risks were too great.
That Mr Farmer whilst armed with the handcuff attempted to carjack another vehicle: that when Mr Farmer turned towards Dove Street he headed straight towards a green vehicle in Dove Street and so potentially going to carjack that vehicle: that the situation was urgent: that Senior Sergeant Osborne and the safety of the public was at risk: that Mr Farmer needed to be stopped in his tracks. And in the circumstances Senior Sergeant Moore was driving pursuant to the police response driving policy and use of force policy and, accordingly, he was entitled to use the car to block Mr Farmer and that having regard to all the circumstances he did not drive dangerously and that it was reasonable and in the public interest for him to drive the vehicle as he did.
[2] ts, 28 October 2019, 5 - 6.
The magistrate referred to the difficulties facing police officers assessing situations confronted by them in the course of their duties. He observed:[3]
For police officers assessing situations it's an intrinsic part of their job. That's what they're trained to do. They have to assess situations, assess risks, assess their response, assess and then reassess. Being a police officer is not an easy task, but assessing situations is part of their job. I appreciate that this happened very quickly and that the matters - the way the matters are dissected in court is not the way things happen in real life. I appreciate all of that.
[3] ts, 28 October 2019, 6 - 7.
The magistrate also referred to the video recording. His Honour described what could be seen on the video recording and noted the strength of the evidence provided by it, commenting:[4]
The video footage was taken from two different angles and was played by consent with no audio. The video footage, in my view, is very strong evidence. It is what it is. It can't be argued with. It's not subject to memory loss or subjectivity as a human's evidence is.
The video footage does not show the whole of the incident from start to finish involving the police and Mr Farmer, but it does show the alleged dangerous driving.
[4] ts, 28 October 2019, 7.
The magistrate undertook a review of the evidence referring to the evidence of each of the 10 witnesses in some detail.
First, his Honour considered that the evidence of Senior Sergeant Osborne, who was called by the prosecution. The magistrate commented that Senior Sergeant Osborne was not an independent witness as she was the appellant's police partner at the time. The magistrate said that he found Senior Sergeant Osborne to be generally reliable but found certain aspects of her evidence not reliable or credible, particularly some evidence that was elicited during cross‑examination. Specifically:
(a)His Honour was not convinced by Senior Sergeant Osborne's evidence that Mr Farmer was dragged along by a car which he had attempted to enter by one of the rear doors at the roundabout. His Honour observed that evidence was not corroborated by other witnesses.[5]
[5] ts, 28 October 2019, 13.
(b)His Honour rejected the characterisation of Mr Farmer's attempts to get into passing cars as 'carjacking', which he defined as taking control of someone's vehicle by force and a serious offence. The magistrate stated:[6]
[6] ts, 28 October 2019, 14.
Now, in cross-examination Senior Sergeant Osborne said before Mr Farmer got to the roundabout that she wasn't concerned that he was armed. I'm satisfied on the evidence that Mr Farmer did attempt to stop a vehicle at the roundabout and then attempted to get into Mr Quartermaine's vehicle - into the back seat. But that is not necessarily carjacking. It could be an immature overweight 18 year old who was desperate to get away from police and was exhausted from running up the hill just trying to get away any way he can.
There's no evidence that he had a weapon at that stage. There's no evidence that he made any associated threats like, 'Get out of the car. Get out of the car or I will bash you' or anything associated with a carjacking. And I will make the observation that a carjacking is not normally done from the back seat of the car. It's not impossible, but it's unusual. In evidence-in-chief when Senior Sergeant Osborne described Mr Farmer attempting to stop the first vehicle at the roundabout and then opening the back door of Mr Quartermaine's vehicle, she did not describe this as carjacking. She didn't describe it as attempt to steal a motor vehicle. That wasn't the terminology she used.
(c)His Honour was not convinced by the evidence of Senior Sergeant Osborne's concern for her own safety and the safety of the public, the account of which seemed to elevate during cross‑examination. His Honour observed:[7]
… after Mr Farmer ran off with the handcuff on his wrist and after she ran after him in close proximity to him, in evidence-in-chief she didn't describe that as him now being armed with a weapon or that she was concerned for her safety or the safety of the public because he was armed with a weapon. She could have said that. She didn't. In fact, she continued to run after him and stay in close proximity to him, which would indicate that she wasn't that concerned for her safety. And she chose not to use force options.
Now, she said she could have used a taser. She could have got close enough to use a taser. And, as she said, she knew backup was coming and she just had to stay with him. And in evidence‑in-chief when she described the moment just before Mr Farmer was hit with the Kluger and he turned towards Dove Street, she made no mention in evidence-in-chief of him being about to carjack the green car that was in Dove Street. So in evidence-in-chief that was her assessment of the situation. Yet in cross‑examination, in my view, her assessment of the situation seemed to elevate. It seemed to change. And I didn't find that to be credible.
In cross-examination - and I accept that in cross examination she was put questions, entirely properly - leading questions which she agrees or disagrees with. But in cross-examination it was put to her that when Mr Farmer turned to the green car she suspected that he might carjack it and she agreed with that. That's not what she said in evidence-in-chief. In cross‑examination she agreed with the proposition that he was now - in turning towards the car in Dove Street - that he was now attempting to get into people's cars with a handcuff hanging off his wrist.
She agreed that she was now concerned that he had a weapon in the form of a handcuff: that she was concerned that she might get hurt or that other police - the other police officer could get hurt or that a member of the public could get hurt. She agreed in cross-examination that Mr Farmer needed to be stopped in his tracks and that she considered it to be urgent. Well, in my view, that was inconsistent with her evidence-in-chief and inconsistent with her actions in the video footage.
The fact that she followed him down the road in close proximity, gets closest within two metres, in my view, shows that she wasn't that concerned about her own safety. And to say that Mr Farmer is now armed with a weapon, in my view, is not credible. The police have put the handcuff on him, yes, and he has run off with a handcuff on him, yes. And I accept her evidence that she should be wary about that. That's something ‑ that's common sense. But be wary about that, but there's no evidence from her or from any other witness or from the video footage that Mr Farmer was ever brandishing the handcuffs as a weapon. And that's her (indistinct) He was just running along with a handcuff attached to his wrist.
She admitted in re-examination he was not physically violent towards her and, as I said, she admitted she could have used her taser if she chose to. She was close enough and she admitted that she never even considered using her firearm. In evidence-in-chief she admitted she knew he was exhausted, saying that he can't breathe. She had told him to sit down. And she knew that all she had to do was stay with him because backup was coming. Her actions in the video footage did not support her evidence in cross examination.
Her actions in the video footage are consistent with her evidence-in-chief. They are not the actions of someone who is in danger of a weapon or is the actions of someone who is concerned that a carjacking with a dangerous weapon is about to take place. It's the opposite. In the video footage her body language, her demeanour, her actions are calm. She's not panicking. She's keeping up with Mr Farmer. She's not resorting to the use of forced options. She has got them available and she is qualified to use them. She is keeping up with him because backup is coming.
And, in fact, I would say her conduct, how she handled the situation in the video footage was commendable. It was a correct assessment of the situation and the response that was required. So for the reasons I've outlined I found her evidence in cross-examination, certain aspects of her evidence in cross-examination that this was urgent and that people were in danger of being hurt, I found that not to be credible.
[7] ts, 28 October 2019, 14 - 15.

The magistrate found Mr Farmer's evidence to be reliable in part, and unreliable in others. His evidence that he turned left towards Dove Street because he saw the Kluger driving up behind him and it was going to hit him was credible.[8]
[8] ts, 28 October 2019, 17.
The magistrate found the other prosecution witnesses were generally credible and reliable, and corroborated the video evidence for the most part. The magistrate notes that Mr Quartermaine, who was in what I have termed the Quartermaine car with his partner and granddaughter, denied that Mr Farmer was dragged by the vehicle, and his evidence was not that they were carjacked by Mr Farmer, but that he was concerned Mr Farmer was a young boy and as to what was happening.[9]
[9] ts, 28 October 2019, 19.
The appellant gave evidence in his own defence. The magistrate reviewed the appellant's evidence at some length. The magistrate found much of the appellant's account of events leading up to and including the appellant falling and injuring himself to be credible and reliable, though he did not accept the appellant's evidence that when he first approached Mr Farmer he had moved towards a gate on one of the residential properties on the road and was trying to unlatch it. The reason stated by his Honour for not accepting this evidence was that no one else gave evidence of Mr Farmer trying to unlatch the gate.[10]
[10] ts, 28 October 2019, 27.
The magistrate found the appellant's evidence that after he got up and walked back to the police car he saw Mr Farmer standing at the driver's door of a car that was travelling north-east on Wilfred Road, and that he was suspicious that Mr Farmer had stopped the car and was going to try get in, was not credible evidence. Amongst his reasons for finding this evidence unreliable, the magistrate stated:[11]
So this is not the two incidents that Senior Sergeant Osborne describes where he tried to stop a car and opened the door of Mr Quartermaine's car because that happened at the roundabout. This is before the roundabout. This is not credible for a number of reasons. Firstly, Senior Sergeant Osborne, who was following closely behind Mr Farmer, did not see it. She did not give evidence about it. And if anyone would have seen it happen, she would have. She was right behind him. Secondly, Mr Jagers and Mr Johnson who gave evidence about seeing Mr Farmer run up to the roundabout with Senior Sergeant Osborne in tow - they didn't see it.
And thirdly, and perhaps most significantly, this evidence is inconsistent with Senior Sergeant Moore's email to Detective Sergeant D'Andrilli that he sent her at 11.42 pm that night that he wasn't aware of any attempted steal motor vehicle incidents. In my view, it's not credible that he saw that. In my view, it appears that he has added this in to bolster his evidence.
[11] ts, 28 October 2019, 29.
The email to which the magistrate referred in the extract of reasons set out above was sent by Detective Sergeant D'Andrilli, Senior Sergeant Osborne, Inspector Kosovich and the appellant. The email contained a summary of the incident provided by Senior Sergeant Osborne. The email included the following statement, 'Suspect attempted to steal (carjack) several vehicles as they drove past, attempting to open doors of cars and get in approximately seven to eight cars attempted.' It also included a statement under the heading 'suspected offences', reading 'Attempted steal motor vehicle x 2, possibly more. Obstruct public officer ...'.[12]
[12] ts, 28 October 2019, 24.
The appellant sent a reply to the email in which he stated, 'Thanks, Mel. That's a great dot point. I wasn't aware of the attempted steal motor vehicle incidents.'[13] The appellant's explanation at trial was that Senior Sergeant Osborne had told him, at the scene but after the incident, that Mr Farmer had police 'alerts' out for him and that the statement in his email referred to past suspected offences.
[13] ts, 28 October 2019, 24 ‑ 25.
The magistrate found this was not credible. There had been no cross‑examination on the alerts, and his Honour found that the 'suspected offences', in context, referred to the offences from that day, 6 May 2019, not any prior alerts. His Honour found that the appellant maintaining that they referred to prior alerts was not credible.
The magistrate was similarly critical of the appellant's evidence that he was concerned the handcuff was a weapon which, as the appellant put it in his evidence if it were swung around and 'hit someone in the face, it would literally slice them open like a can opener'.[14] His Honour said:[15]
In my assessment, the manner in which this evidence was given was that it was an exaggeration of the truth. I accept that there are circumstances where it could be a concern that a handcuff could be used as a weapon, but … these weren't those circumstances. As I said in my assessment of Senior Sergeant Osborne's evidence, there's no evidence at all - on the video footage, by any other witness - that Mr Farmer has used or attempted to use the handcuff as a weapon.
So to suggest in the circumstances of this case that he is now armed because the police put a handcuff on him and he ran off is not credible. And in my view, it's an attempt to make the facts appear more serious and more urgent than what they were in an attempt to justify the state that he was driving later on.
...
... though I note that when he called for urgent backup, when he was on the radio, he didn't say suspect attempting to carjack vehicle, suspect armed with weapon.
[14] ts, 29 August 2019, 187.
[15] ts, 28 October 2019, 30.
The magistrate found that other elements of the accused's evidence did not align with the sequence of events established by other witnesses. The appellant's evidence that after Mr Farmer had broken away from him and Senior Sergeant Osborne, and after he, the appellant, had got back into the vehicle, he saw Mr Farmer trying to carjack another vehicle and was concerned that he could use the handcuff as a weapon to threaten the occupants was not credible and his Honour gave his reasons for holding this view.
The magistrate considered that the appellant's evidence that he was concerned that, as he drove up alongside Mr Farmer, Mr Farmer was approaching the green car stopped in Dove Street and that his (the appellant's) intention was to protect the public from Mr Farmer, who had a weapon on his wrist, and to effect his arrest was an exaggeration of the truth. His Honour said: [16]
Yes, Mr Farmer looks over his shoulder and sees the Kluger coming at him. Yes, he then turns towards Dove Street, but, in my view, he does so to avoid the police car that is coming at him. That was Mr Farmer's evidence. That is what you see in the video footage, and I find that to be credible. As I've already commented on in relation to the evidence of Senior Sergeant Osborne, the suggestion that he was headed towards the green car in Dove Street to carjack it is not credible.
He was too far away from the green car at that point to logically reach that conclusion. He makes no actions or gestures towards the green car. He makes no threats towards the occupants of the green car. And that's consistent with the footage. To suggest that he was attempting to carjack the green car with a weapon is, in my view, an exaggeration. And I reject Senior Sergeant Moore's evidence on that point.
[16] ts, 28 October 2019, 33.
The magistrate considered the evidence from which he could draw an inference as to whether the appellant had intended to hit Mr Farmer with the vehicle or merely block his path and concluded that the appellant had intended to block Mr Farmer's path. His Honour did not accept, however, the appellant's evidence that the appellant 'urgently had to block Mr Farmer to protect the public and effect the arrest'.[17]
[17] ts, 28 October 2019, 35.
Having reviewed the evidence, the magistrate then set out a number of specific factual findings that accorded with the evidence accepted by him.[18] The following findings are of particular relevance to the grounds of appeal:
[18] ts, 28 October 2019, 35 - 39.
(a)Mr Farmer had a backpack, though his Honour expressly recorded that he made no finding about the contents of the backpack.
(b)Mr Farmer had been behaving in a way that amounted to suspicious behaviour which warranted the police talking to him and even arresting him on suspicion, and that when Mr Farmer ran away this increased the suspicion held by the appellant and Senior Sergeant Osborne.
(c)Mr Farmer did not try to unlock a gate as the appellant had testified.
(d)Mr Farmer was overweight and unfit. He had not tried to get into a passing car before he arrived at the roundabout but when he was at the roundabout he had gestured to a passing car to stop but it had driven off. Mr Farmer then approached the Quartermaine car. Mr Farmer had opened the rear door of that car but Mr Quartermaine had leant over and closed the door and Mr Quartermaine's partner, who was driving, had then locked the doors. Mr Farmer was chased around the car by Senior Sergeant Osborne and he tried to open the other rear door but it was locked. Mr Farmer did not get into the car and he was not dragged along by it.
(e)Mr Farmer had not attempted to steal or carjack any vehicle. The evidence that he attempted to open the rear door of the Quartermaine car was not evidence of an attempt to steal or carjack the vehicle.
(f)The handcuff on Mr Farmer's left arm did not constitute a weapon.
(g)Senior Sergeant Osborne had attempted to grab Mr Farmer's arm but (in her words) he had 'battered her off' but he had not assaulted Senior Sergeant Osborne or attempted to do so, he was just trying to get away.
(h)Mr Farmer had not tried to carjack a car at the roundabout when he had the handcuff on his left arm.
(i)As Mr Farmer and Senior Sergeant Osborne moved down Wilfred Road away from the roundabout they were both starting to get tired and Mr Farmer in particular was puffing and panting and saying he could not breathe.
(j)Senior Sergeant Osborne assessed the situation as not requiring the use of force options and she knew that all she had to do was to stay with Mr Farmer until backup arrived.
(k)As Mr Farmer walked down Wilfred Road he lifted his right arm in the air and pointed at the 'dark sedan' on the other side of the road but remains more than a car's length away from the dark sedan with Senior Sergeant Osborne very close behind him. Mr Farmer was not attempting to carjack the dark sedan.
(l)Just before the appellant's vehicle drew level with Mr Farmer he looked over his right shoulder and saw the appellant's vehicle, which had its police lights flashing, and turns left towards Dove Street.
(m)In turning left Mr Farmer was not heading towards the 'green car' on Dove Street in an attempt to carjack it with a weapon. Mr Farmer turned left because he saw the police vehicle coming up behind him.
(n)The appellant did not intend to hit Mr Farmer with his vehicle. The vehicle was travelling slightly faster than walking pace but struck Mr Farmer with significant force.
The magistrate then referred to the statutory provisions and various authorities. His Honour identified the prosecution case as being that the driving was dangerous to Mr Farmer and not the public at large. His Honour recorded that the circumstances of the case to which he should have regard for the purpose of determining whether the appellant's driving was dangerous included all of the events that occurred between Senior Sergeant Osborne and the appellant being dispatched to investigate Mr Farmer's conduct and the moment Mr Farmer was struck by the vehicle. His Honour then went through those circumstances in some detail. In summary, his Honour stated that up to the point of the alleged dangerous driving the attempts made by the appellant and Senior Sergeant Osborne to arrest Mr Farmer were lawful and involved the use of reasonable force. However, his Honour added this rider:[19]
That is not to say that Senior Sergeant Moore did a good job of it. He didn't. Far from it, he totally messed it up. I think he concedes that. He was probably too old, too unfit and too overweight to be doing what he was doing and he got shown up for it. Despite that, up until the alleged element of dangerous driving, in my view, his conduct was lawful and he was within his powers to arrest and prevent the escape of Mr Farmer.
[19] ts, 28 October 2019, 43.
The magistrate then addressed the manoeuvre that was alleged to constitute dangerous driving. The gravamen of his Honour's reasoning was encapsulated in the following passage:[20]
As I have said, I don't find that Senior Sergeant Moore deliberately ran into Mr Farmer to stop him. So using the police vehicle to block Mr Farmer, in my view, that is again contentious. It is risky. Any time a car is driven in close proximity to people is risky …
So to block someone with a vehicle, it would need to be executed very carefully. It is borderline. But in my view, in all the circumstances ‑ blocking Mr Farmer, in the circumstances as I have found them, by a highly qualified driver, a police officer on duty, if done reasonably, could amount to reasonable force. If it was done slowly at a safe distance, it could be reasonable in the circumstances. The problem here is that is not what I found occurred in these circumstances.
Senior Sergeant Moore has turned very quickly and very sharply, and as I found, I accept that he was trying to block Mr Farmer. But he has turned very quickly and very sharply, so sharply that he has actually hit Mr Farmer, and in my view, looking at it objectively and taking into account all the circumstances, that manner of driving was dangerous to Mr Farmer, seriously dangerous and more than mere negligence.
[20] ts, 28 October 2019, 46.
The magistrate then addressed a submission made by defence counsel to the effect that arrests often occur in circumstances of excitement, turmoil, and panic and stated:[21]
That is true, but in my view, this was not one of those situations. This was not a public disturbance or a street fight. It is true Mr Farmer was running from police. Ms Black commented that no members of the public went to assist the police. That is probably, in my view, because the members of the public saw it for what it was. This was not an urgent or violent situation …
So members of the public were not concerned because there was no urgency or violence, and I reject the evidence of Senior Sergeant Osborne in cross-examination and Senior Sergeant Moore that it was a situation of urgency and violence. The only person panicking was perhaps Senior Sergeant Moore, perhaps because he was embarrassed that he had fallen over chasing Mr Farmer; that he had left his female partner to do the heavy lifting; that he was unable to handcuff Mr Farmer; that he had fallen over again; that he was too exhausted to pursue him on foot, which is the appropriate method.
There was no urgency here. Mr Farmer was exhausted. He was not going anywhere. Senior Sergeant Osborne, in my view, correctly assessed the situation. Backup was on its way. All she had to do was stay with him. All Senior Sergeant Moore had to do was, if he couldn't chase after him, stay with him with a police vehicle. If he was going to block him, he needed to block him in a manner that kept a safe distance from Mr Farmer. But in the circumstances in which he did attempt to block him, whereby he has driven and turned so sharply that he has driven into Mr Farmer, in my view, that, as I have said, was dangerous to Mr Farmer.
[21] ts, 28 October 2019, 46 - 47.
The magistrate addressed the s 61A defence and recorded that he accepted that, in accordance with the requirements of s 61A, the appellant was on duty as a police officer during the incident, and that that driving to use the police vehicle to block Mr Farmer could be regarded as covered by the Commissioner's policies. On the issue of whether it was reasonable and in the public interest for the appellant to have driven in the manner he did, his Honour stated:[22]
I am not satisfied on the balance of probabilities, having regard to all the circumstances of the case that it was reasonable and in the public interest for Senior Sergeant Moore to turn sharply to the left in the manner that he did in close proximity to Mr Farmer. There was no need for him to turn so sharply. It was not reasonable. There was no rush. There was no urgency. Backup was coming. There was no risk to public safety. It was not, in my view, in the public interest. Then to - so I don't find the defence under section 61A subsection 1 made out.
[22] ts, 28 October 2019, 48.
The appellant did not rely on any other defences but the magistrate considered the potential application of s 23A, s 23B, s 24, and s 25 of the Criminal Code (WA) and considered that they did not provide the appellant with a defence.
I set out the magistrate's sentencing remarks later in these reasons when dealing with the application for leave to appeal against the sentence.

Appeal against conviction

Overarching observations on the grounds of appeal against conviction

Before turning to the grounds and the particulars relied on in support of them, two overarching points about the approach adopted by the appellant in his grounds of appeal may be made.
First, the grounds involve wide ranging attacks on the magistrate's assessment of the evidence and on his Honour's fact finding. These attacks fail to appreciate that although the magistrate did not accept all of the evidence of the appellant and Senior Sergeant Osborne, his Honour did accept that it was reasonable for the appellant to use his vehicle to block Mr Farmer's path in an attempt to arrest him. The critical finding was that the appellant executed the blocking manoeuvre in a manner that was objectively dangerous taking into account all the circumstances. The execution of the manoeuvre is recorded clearly on the video footage. I agree with the magistrate's description of the video footage 'as very strong evidence'. With respect to the appellant, it is plain from that footage that the blocking manoeuvre constituted dangerous driving. In the appellant's written submissions it is contended that the magistrate failed to appreciate 'the split second decision the appellant was required to make'.[23] This submission exemplifies the way in which the appellant's case fails to engage with the magistrate's reasoning. The magistrate undertook a careful and detailed analysis of all the circumstances and, expressing the essence of the conclusions reached by the magistrate in a manner that addresses the appellant's submission, concluded that although the appellant may have made a 'split second decision', the circumstances were not so urgent as to require him to make such a decision.
[23] Appellant's submissions [41].
The second point is that the appellant's submissions fail to engage with the principles applicable to appellate review of factual findings based on the credibility.
In his submissions the appellant identified the relevant principles as those stated by the High Court in House v The King.[24] As the Chief Justice stated recently in City of Armadale v Neerigen Brook Estate Pty Ltd,[25] House v The King is concerned with the correct approach to appellate intervention in relation to the exercise of a discretion by the primary court. The present appeal is not concerned with an exercise of discretion but with whether the magistrate erred, in fact or in law, in convicting the appellant.
[24] House v The King [1936] HCA 40; (1936) 55 CLR 499.
[25] City of Armadale v Neerigen Brook Estate Pty Ltd [2020] WASC 137 [50].
The Court of Appeal discussed the applicable principles to appellate review of factual findings in Joyce v Anderson.[26] In his judgment in Joyce v Anderson Mitchell JA referred to the explanation of the role of an appellate court given by the High Court in Lee v Lee,[27] which was as follows:
A court of appeal is bound to conduct a 'real review' of the evidence given at first instance and of the judge's reasons for judgment to determine whether the trial judge has erred in fact or law. Appellate restraint with respect to interference with a trial judge's findings unless they are 'glaringly improbable' or 'contrary to compelling inferences' is as to factual findings which are likely to have been affected by impressions about the credibility and reliability of witnesses formed by the trial judge as a result of seeing and hearing them give their evidence. It includes findings of secondary facts which are based on a combination of these impressions and other inferences from primary facts. Thereafter, 'in general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge'. (citations omitted)
[26] Joyce v Anderson [2020] WASCA 48; (2020) 91 MVR 334 [104] - [108] (Mitchell JA), [206] - [213] (Beech & Vaughan JJA).
[27] Lee v Lee [2019] HCA 28; (2019) 266 CLR 129 [55].

Mitchell JA also observed that even where the appeal concerns inferences to be drawn from established primary facts, it remains necessary for the appellant to demonstrate error. His Honour referred to the observations of Beaumont and Lee JJ in Minister for Immigration, Local Government and Ethnic Affairs v Hamsher:[28]
[T]he court is not obliged to proceed to make new findings of fact on all relevant issues and discharge the judgment appealed from if those findings differ from those of the trial judge and do not support the judgment. The court must be satisfied that the judgment of the trial judge is erroneous and it may be so satisfied if it reaches the conclusion that the trial judge failed to draw inferences that should have been drawn from the facts established by the evidence. The court is unlikely to be satisfied if all that is shown is that the trial judge made a choice between competing inferences, being a choice the court may not have been inclined to make but not a choice the trial judge should not have made. Where the majority judgment in Warren v Coombes (at 552 ‑ 553) states that an appellate court must not shrink from giving effect to its own conclusion, it is speaking of a conclusion that the decision of the trial judge is wrong and that it should be corrected.

Ground 1

[28] Minister for Immigration, Local Government and Ethnic Affairs v Hamsher (1992) 35 FCR 359, 369.

Ground 1 states the magistrate made a series of factual errors that, when considered in combination, resulted in the magistrate making an error of law by applying the law to the flawed factual findings. The ground relies on nine particulars.

Ground 1 - Particular 1 - found contrary to the accepted evidence including exhibit 10 that Mr Farmer was not in possession of instruments of home burglary

There was evidence that the 'instruments of home burglary' were in Mr Farmer's backpack but the magistrate made no finding about the contents of the backpack. It was unnecessary for him to do so. Senior Sergeant Osborne's evidence was that Mr Farmer took his backpack off and threw it to the ground as she was following him towards the roundabout, that is, before Senior Sergeant Osborne and the appellant managed to catch him and put a handcuff on his left wrist.[29] Mr Farmer did not have the backpack on him when the appellant decided to use his vehicle to block Mr Farmer's path. The appellant gave no evidence about what he thought may have been in the backpack. The particular raises a false issue.

Ground 1 - Particular 2 - found contrary to the weight of the evidence that Mr Farmer was not trying to enter another person's car unlawfully ('carjack')

[29] ts, 28 August 2019, 20.

This particular does not advance the appellant's case for two reasons.
First, and most fundamentally, the particular is irrelevant to the magistrate's reasoning as he found that prior to the alleged dangerous driving the appellant was not aware of any attempt to steal a vehicle or 'carjack' a vehicle (and indeed found that there was no such attempt). The alleged carjackings - like the contents of the discarded backpack ‑ were thus not matters capable of operating on the appellant's mind at the time of the alleged dangerous driving. They did not form part of the circumstances to which regard must be had for the purposes of determining whether the driving was dangerous.
By way of further exposition - the appellant did not give evidence about Mr Farmer's attempt to get into the Quartermaine car - it appears he did not see this take place. Rather, he gave evidence about two separate incidents that caused him to suspect that Mr Farmer may have been trying to get into cars. As to the first incident the appellant gave evidence that he saw Mr Farmer standing by the driver's door of a car that had stopped. He was concerned that Mr Farmer had stopped the car and was going to get into it.[30] This was after the appellant had fallen over and returned to his vehicle but before Mr Farmer reached the roundabout and before he attempted to get into the Quartermaine car. According to the appellant's evidence, the second incident occurred after Mr Farmer had broken free and walked away with the handcuff on his wrist. The appellant said he saw Mr Farmer standing at a rear open door of a car and was concerned that he might be trying to carjack the vehicle.[31] The magistrate rejected the appellant's evidence in respect of both incidents and gave detailed reasons for doing so.[32] In his Honour's view, a powerful reason for rejecting the appellant's evidence was that Senior Sergeant Osborne, who was following closely behind Mr Farmer, and in a better position to observe Mr Farmer than the appellant, gave no evidence of such attempts at carjacking. The magistrate's reasons for rejecting the appellant's evidence are unimpeachable. The appellant did not demonstrate any error in his Honour's approach to making findings as to these facts.
[30] ts, 29 August 2019, 182.
[31] ts, 29 August 2019, 190.
[32] ts, 28 October 2019, 28 and 31.
The second reason why this particular does not advance the appellant's case is that the magistrate's finding that Mr Farmer did not attempt to steal or carjack a vehicle was a finding plainly open on the evidence.
Before going further it is necessary, however, to say something about the use of the term 'carjack'. The meaning given to this term by the appellant is 'trying to enter another person's car unlawfully'. In the appellant's written submissions it was said that 'carjack' is not a term of art and its meaning is not to be found in the Criminal Code (WA) but 'it is a term well understood and it was not reasonably open on the evidence for the Learned Magistrate to find that Mr Farmer was not attempting to carjack'.
I am not sure that 'carjack' is a term 'well understood', at least, it is a term that may have different meanings or shades of meaning. The magistrate explained what he understood by the term 'carjacking'. As noted earlier, his Honour said, 'carjacking is taking control of someone's vehicle by force, which is a serious offence'.[33] Thus when the magistrate used the term 'carjack' he was not using it in the confined sense of 'trying to enter another person's car unlawfully'.
[33] ts, 28 October 2019, 14.
The particular does not reflect the magistrate's findings accurately. The magistrate found that Mr Farmer did attempt to get into the Quartermaine car. His Honour inferred, however, that Mr Farmer did not have the intention of stealing the car or 'carjacking'. His Honour considered that it was possible that Mr Farmer was 'an immature overweight 18 year old who was desperate to get away from the police and was exhausted from running up the hill and was just trying to get away any way he [could]'.[34]
[34] ts, 28 October 2019, 14.
The magistrate had the benefit of seeing Mr Farmer and Mr Quartermaine give evidence. Mr Quartermaine's evidence was that at the time Mr Farmer was trying to get into the car he was concerned for Mr Farmer's welfare.[35] This evidence tends to undermine the impression that the appellant was concerned to convey in his evidence that Mr Farmer was a danger to the public.
[35] ts, 28 August 2019, 94.
It may be accepted - and it is implicit in the magistrate's reasons that he accepted - that there was no lawful reason for Mr Farmer to attempt to get into the Quartermaine car. That does not, however, compel the inference that Mr Farmer was attempting to steal or carjack the car. I am not satisfied that in drawing the inference that Mr Farmer was not attempting to steal or carjack the car the magistrate made a fact finding error.

Ground 1 - Particular 3 - found contrary to the undisputed evidence that Mr Farmer was not armed in circumstances where not only did he have items used for a burglary, but he was also in physical possession of a heavy police issue handcuff still attached to one wrist

The appellant contends the magistrate erred in reaching the following conclusion:[36]
I accept that there are circumstances where it could be a concern that a handcuff could be used as a weapon, but these weren't those circumstances. As I said in my assessment of Senior Sergeant Osborne's evidence, there's no evidence at all - on the video footage, by any other witness - that Mr Farmer has used or attempted to use the handcuff as a weapon.
[36] ts, 28 October 2019, 31.
In particular, the appellant contends that the magistrate erred in focusing on whether Mr Farmer had used the handcuff as a weapon. It was contended that it was sufficient that the handcuff could have been used as a weapon.
This is not a case in which in the magistrate was required to reach a conclusion on whether the handcuff was capable of constituting a weapon or whether the appellant was armed. The appellant did not support his contention that the magistrate erred by focusing on whether Mr Farmer used the handcuff as a weapon by reference to any definition of either 'weapon' or being 'armed' or any legal principle relevant to the meaning of 'weapon' or being 'armed'.
Debating whether the handcuff was a weapon or whether Mr Farmer should be characterised as 'armed' is a distraction from the fact finding task the magistrate was required to undertake. His Honour was required to make factual findings as to 'all the circumstances of the case' to which he was to have regard for the purposes of determining whether the driving was dangerous. Those circumstances included, as the magistrate found, both that the handcuff could be used as a weapon and that Mr Farmer had not used or attempted to use the handcuff as a weapon. In my view, the magistrate's findings accorded with the evidence: the handcuff could have been used as a weapon but Mr Farmer did not attempt to use it as a weapon. His Honour's finding involved no error.

Ground 1 - Particular 4 - did not find, despite the absence of contrary evidence and the absence of challenge by the prosecution, that the appellant was required to use his car to apprehend Mr Farmer because he was injured and instead considered it was because the appellant was 'too old, too unfit and too overweight'

This particular raises a false issue. It does not address the magistrate's reasoning process. As stated above, the magistrate accepted that it was reasonable for the appellant to use the police vehicle as a means of blocking Mr Farmer's path. So much was plain from the following passage of the reasons:[37]
So using the police vehicle to block Mr Farmer, in my view, that is again contentious. It is risky. Any time a car is driven in close proximity to people is risky ... So to block someone with a vehicle, it would need to be executed very carefully. It is borderline. But in my view, in all the circumstances - blocking Mr Farmer, in the circumstances as I have found them, by a highly qualified driver, a police officer on duty, if done reasonably, could amount to reasonable force. If it was done slowly at a safe distance, it could be reasonable in the circumstances. The problem here is that is not what I found occurred in these circumstances.
[37] ts, 28 October 2019, 46.
The appellant's submissions have taken the magistrate's observations about the appellant's age, weight and physical condition out of context and attached to them a significance to the reasoning process that they do not have. The magistrate's observations were made in the context of his Honour's description of the attempts made by the appellant and Senior Sergeant Osborne to detain Mr Farmer at the roundabout, as being lawful and involving reasonable force. That this was so was made plain by the statements that preceded the remarks on which the appellant has focussed, which were as follows:
I am satisfied, at least up to the point of the allegation of dangerous driving, that their attempts to arrest Mr Farmer were lawful and constituted reasonable force. That is not to say that Senior Sergeant Moore did a good job of it. He didn't. Far from it, he totally messed it up. I think he concedes that.
While the appellant's challenge to the magistrate's observations about the appellant's weight, age and fitness level may be understandable, it is nevertheless important to appreciate that they were superfluous to the chain of reasoning. The magistrate's acceptance that it was reasonable for the appellant to use his vehicle to block Mr Farmer's path did not arise from, and was not dependent on, the observations about the appellant's weight, age and fitness level.
The appellant was a police officer, with an exemplary record, who was doing his best to serve the public in difficult circumstances. The appellant had been injured early on in the incident. The notes of the appellant's admission to the Emergency Department of Royal Perth Hospital following the incident record that the appellant had a 3 cm sliver of glass embedded in his left elbow and significant left rib and upper left quadrant pain on palpation and rib contusion.[38] Mr Farmer was a tall, heavily built young man whom Senior Sergeant Osborne described as 'big and strong'.[39] It is obvious that he was not easy to control. With respect, given that the observations about the appellant's weight, age and fitness were not essential to the process of reasoning, it was unfortunate that the magistrate expressed his opinion in terms that were likely to have the effect of humiliating the appellant.

Ground 1 - Particular 5 - found that the appellant's partner, Senior Sergeant Osborne, considered 'force options were not required' when in fact Senior Sergeant Osborne gave evidence, not that force options were not required, but that she considered her force options and due to various reasons, decided not to use them

[38] Exhibit 4.

[39] ts, 28 August 2019, 48.

It is arguable that the magistrate's finding that Senior Sergeant Osborne assessed the situation as not requiring the use of force options[40] did not reflect the totality of Senior Sergeant Osborne's evidence in relation to force options.
[40] ts, 28 October 2019, 38.
In examination-in-chief Senior Sergeant Osborne was asked whether she considered using force options on Mr Farmer when they were at the roundabout. The substance of her answer was that she considered using force options but decided that none of the force options available to her were suitable in the operational circumstances.[41]
[41] ts, 28 August 2019, 22.
In a later passage of her evidence in chief Senior Sergeant Osborne said that she considered using force options when she was following Mr Farmer down Wilfred Road in the direction of the junction with Dove Street but she 'felt that he wasn't going to be able to get away from me and I knew backup would be coming so I just needed to remain with him and make sure he didn't get in any other cars before someone arrived'.[42]
[42] ts, 28 August 2019, 24.
In cross-examination Senior Sergeant Osborne said:[43]
I considered [force options] several times throughout the incident, including as we were walking back down the road. Again, I wasn't really conscious of where my partner was. I knew that backup would be coming, and I didn't want to deploy a taser or use a force option because I was on my own, in case it went wrong, until I knew that there was backup
[43] ts, 28 August 2019, 54.
Although I accept it is arguable that the magistrate's finding did not reflect the totality of the Senior Sergeant Osborne's evidence, I am not satisfied that the magistrate erred in making the finding about Senior Sergeant Osborne's assessment of the use of force options. This is because the critical part of the incident was when Senior Sergeant Osborne was following Mr Farmer (with the handcuff attached to his left wrist) along Wilfred Road in the direction of Dove Street. This was when Senior Sergeant Osborne felt that Mr Farmer was not going to be able to get away and all she needed to do was to stay with him. This evidence was reflected accurately in the following finding:[44]
I find that by this stage, both Mr Farmer and Senior Sergeant Osborne were both starting to get tired. I find Mr Farmer, in particular, was puffing and panting and saying he can't breathe, and that Mr Jagers and Senior Sergeant Osborne told him to stop and to sit down. I find that Senior Sergeant Osborne assessed the situation as not requiring use of force options. And I accept her evidence that she knew that in the circumstances, all she had to do was stay with Mr Farmer and that backup was coming.

Ground 1 - Particular 6 - drew conclusions from the evidence of Senior Sergeant Osborne that did not in fact properly emerge from a consideration of the whole of her evidence

[44] ts, 28 October 2019, 37 - 38.

The appellant's submissions in support of this particular were that the magistrate's conclusions on pages 14 and 15 of the transcript of the reasons were not reasonably open on the evidence. The impugned passages recorded the magistrate's assessment of Senior Sergeant Osborne's evidence in cross-examination, as opposed to his Honour's factual findings that were recorded later in the reasons, and thus it is not to the point to say, as the appellant submitted, that the 'conclusions' were not open on the evidence.
In the relevant passages his Honour identified the reasons why he did not accept Senior Sergeant Osborne's evidence that Mr Farmer had attempted to carjack the Quartermaine car and why he did not accept her evidence that she was concerned that Mr Farmer was armed or that he might carjack the 'green car' in Dove Street. His Honour also drew a contrast between the evidence given by Senior Sergeant Osborne in the course of examination-in-chief and her evidence in cross-examination, observing that in her evidence in cross-examination her assessment of the situation 'seemed to elevate'. As the passage of the reasons quoted above at [17] discloses, the magistrate gave cogent reasons why he did not accept Senior Sergeant Osborne's evidence in cross-examination. In part, these reasons involved a consideration of the substance of the answers given by Senior Sergeant Osborne in her evidence-in-chief and in cross-examination but they also involved a comparison between her evidence in cross-examination and what the magistrate was able to observe from the video recording. Contrary to the suggestion made in the appellant's submissions, the magistrate did not simply accord less weight to the evidence given in cross-examination simply because it was given in cross-examination.
The magistrate observed Senior Sergeant Osborne give her evidence and he watched the video recording of her interaction with Mr Farmer. In my view, his Honour's assessment of Senior Sergeant Osborne's evidence involved no error.

Ground 1 - Particular 7 - Rejected the evidence of Senior Sergeant Osborne regarding her belief that Mr Farmer may have been attempting to carjack a green car in Dove Street because she did not state this in her evidence in chief despite the fact she did state this in cross examination

This particular is a refinement of the previous particular. The relevant part of Senior Sergeant Osborne's evidence‑in‑chief took the form of a narrative account by her with minimal intervention or direction by prosecuting counsel.[45] The fact that Senior Sergeant Osborne did not mention in the course of that narrative the concern (which she later raised in cross-examination) she had about carjacking provided the magistrate with a rational basis for not accepting that later evidence. This particular does not identify any error by the magistrate.

Ground 1 - Particular 8 - wrongly found that Senior Sergeant Osborne did not use her taser on Mr Farmer due to him 'not being physically violent towards her' when her evidence was that she chose not to use it due to being 'in trouble' if it failed or that if it was effective, that the appellant was not present to then handcuff Farmer.

[45] ts, 28 August 2019, 24 - 25.

This particular does not develop the appellant's case any further than particular 5 and the attack on the magistrate's finding in relation to Senior Sergeant Osborne's assessment of the use of force options. I am satisfied that the evidence supported the magistrate's finding that in the moments immediately preceding the alleged dangerous driving, that is, as Senior Sergeant Osborne followed Mr Farmer down Wilfred Road, she did not use her taser because she knew Mr Farmer could not get away and all she had to do was to stay with him until the backup arrived.

Ground 1 - Particular 9 - rejected the evidence of two highly experienced officers without proper explanation or cause and thus incorrectly found that a man with a police issue handcuff that was attached to one wrist was not armed with a weapon and did not present a risk in this regard

The appellant's written submissions in support of this ground stated, 'the appellant repeats his submissions in Particular 1'. That appears to be an error as those submissions relate to the absence of a finding about the content of the backpack. In any event, this particular appears to be a 'catch all' particular. It adds no substance to the preceding particulars.

Ground 1 has no reasonable prospect of success

Leave to appeal must not be granted in respect of a ground of appeal unless the court is satisfied that the ground has a reasonable prospect of success.[46] This means that each ground must have a real, rational and logical prospect of succeeding.[47] I am not satisfied that ground 1 has a real, rational and logical prospect of succeeding and I refuse leave to appeal in relation to it.

Ground 2

[46] Criminal Appeals Act 2004 (WA) s 9(2).

[47] Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56].

Ground 2 asserts the magistrate erred in law and in fact in rejecting the appellant's evidence, particularly by taking into account irrelevant considerations when drawing conclusions about the appellant, including about his physical appearance, and thereby failed to consider his testimony according to law. Ground 2 was supported by four particulars.

Ground 2 - Particular 1 - the magistrate took account of irrelevant considerations including the age and weight of the appellant

This particular is a repetition of particular 4 of ground 1 and for the reasons already given does not assist the appellant.

Ground 2 - Particular 2 - the magistrate failed to properly consider the circumstances presented to the appellant at the relevant time

This particular is, in effect, a summary of the matters relied on in support of ground 1 and for the reasons already given I do not accept those matters establish a ground of appeal that has a reasonable prospect of success.

Ground 2 - Particular 3 - the magistrate rejected the appellant's account of events without explanation and even where it was unchallenged by the prosecution

The submission made in support of this particular was that the magistrate made an error in rejecting the appellant's evidence that when he first approached Mr Farmer, Mr Farmer moved towards the gate of a house, reached over the gate as if he was trying to undo the latch but appeared not to know where the latch was or how to open the gate. The evident purpose behind adducing this evidence was to establish that Mr Farmer was acting suspiciously and the appellant and Senior Sergeant Osborne were justified in arresting him. Even if I assume in the appellant's favour that the magistrate made an error in rejecting the appellant's evidence in this respect, the error was immaterial because the magistrate found, in effect, that the suspicions held by Senior Sergeant Osborne and the appellant about Mr Farmer were not only justified but were increased by the fact that Mr Farmer ran away when approached. Accordingly, the particular does not advance the appellant's case.

Ground 2 - Particular 4 - the magistrate gave less weight or no weight to evidence adduced from the prosecution witnesses that supported the appellant's testimony where such evidence emerged only during cross‑examination

This particular is a reformulation of particular 7 under ground 1 and, for the reasons already given, it does not assist the appellant.

Ground 2 has no reasonable prospect of success

Ground 2 does not have a real, rational and logical prospect of succeeding and I refuse leave to appeal in respect of it.

Ground 3

Ground 3 asserts that the magistrate erred in law and in fact when finding that the prosecution had proved that the appellant's act of steering the vehicle to the left was, in all of the circumstances, dangerous to Mr Farmer.
There are six particulars to ground 3 but it is unnecessary to set them out. Essentially, the particulars involve reformulations of the particulars given under ground 1.
The submissions made in support of the ground contended the magistrate had erroneously divorced the driving alleged to be dangerous from the surrounding circumstances and that his Honour made errors in the assessment of those circumstances. For the reasons given in relation to the particulars under ground 1, the submission that the magistrate erred in his assessment of the surrounding circumstances is rejected.
The submission that the magistrate divorced the alleged dangerous driving from the circumstances does not rise above the level of assertion and I reject it. The magistrate gave detailed consideration to the surrounding circumstances and considered each aspect of the appellant's case in relation to those circumstances and, at the risk of repetition, accepted that in the circumstances it was reasonable for the appellant to use the vehicle to block Mr Farmer. The assertion that the magistrate divorced his consideration from the surrounding circumstances is not borne out by the careful analysis undertaken by his Honour of those circumstances.

Ground 3 has no reasonable prospect of success

Ground 3 does not have a real, rational and logical prospect of succeeding and I refuse leave to appeal in relation to it.

Ground 4

Ground 4 asserted the magistrate erred in law and in fact when concluding that the driving, even if otherwise dangerous, was not substantially in accordance with the Commissioner's policies (Use of Force Policy and s 61A of the RTA). The ground was supported by seven particulars. Once again it is unnecessary to repeat the particulars. In effect, they repeat the criticism of the magistrate's findings as to the 'circumstances' and assert the magistrate failed to observe the requirement to give a 'proper consideration of the broader question relating to the objective reasonableness of a police officer to drive in the manner he did so as to be able to apprehend a suspect.'
In the course of summarising the magistrate's findings I have set out at [33] the passage in his Honour's reasons that explain why it was not reasonable and in the public interest for the appellant to drive as he did. This passage appears at the end of lengthy reasons in the course of which the magistrate gave detailed consideration to the circumstances and to the objective reasonableness of the appellant's manner of driving.

Ground 4 - no reasonable prospect of success

Ground 4 does not have a real, rational and logical prospect of succeeding and I refuse leave to appeal in relation to it.

Ground 5

Ground 5 asserts the magistrate erred in fact and in law in finding that Mr Farmer was not trying to carjack anyone at a time proximate to the commission of the offence and failing to consider whether the appellant honestly and reasonably, but mistakenly, believed that Mr Farmer was in fact trying to carjack. Ground 5 relies on five particulars. Once again it is unnecessary to repeat them.
Both of the errors alleged in ground 5 are dealt with in my disposition of ground 1. As to the alleged error in the finding that Mr Farmer was not trying to carjack anyone at a time proximate to the offence, for the reasons already stated, this was a finding open to the magistrate. As to the second alleged error concerning whether the appellant believed that Mr Farmer was carjacking, again for the reasons given earlier, I consider that the magistrate's finding that in the course of the incident, the appellant was not aware of any attempt by Mr Farmer to steal a motor vehicle, was supported by the evidence. The finding that the appellant was not aware of any attempt to steal or carjack a vehicle in the course of the incident precludes the possibility that the appellant had an honest and reasonable, but mistaken, belief that Mr Farmer was in fact attempting a carjack.

Ground 5 has no reasonable prospect of success

Ground 5 has no real, rational and logical prospect of succeeding and I refuse leave to appeal in relation to it.

The appeal against sentence

An overview of the parties' submissions

The appellant contends that the fine of $2,500 was manifestly excessive in all the circumstances. In support of this ground, the appellant contends:
(a)the maximum penalty for a first offence of dangerous driving is $3,000;
(b)the fine of $2,500 was 85% of the maximum penalty;
(c)there are an insufficient number of reported cases to be able to identify standards of sentencing in respect of dangerous driving;
(d)Wintle v Dean[48] provides some guidance as to appropriate penalty;
(e)limited guidance may be obtained from the case law regarding assaults by police officers, in this respect the appellant relied on Boult v Williams[49] and Evans v Richards in which in each case fines of $1,000 were imposed when the offenders were resentenced on appeal;[50]
(f)the circumstances of the offence were most atypical, he was a police officer, acting in good faith, under difficult circumstances, whilst injured, and was driving substantially in accordance with the Commissioner's policies, the relevant act of driving occurred in the agony of the moment and under very difficult circumstances and was not attended by any aggravating circumstance that would increase his culpability; and
(g)his personal circumstances favoured leniency because he was 56 years of age at the time of sentencing and a long-standing police officer, holding the rank of Senior Sergeant, he was of good character and no relevant prior convictions.
[48] Wintle v Dean [2012] WASC 165 (Martin CJ).
[49] Boult v Williams [2019] WASC 98 (Strk AJ).
[50] Evans v Richards [2015] WASC 53; (2015) 248 A Crim R 489 (McKechnie J).
The respondent accepted that there insufficient reported decisions to discern a tariff for a first offence of dangerous driving contrary to s 61 of the RTA. The respondent argued that Wintle v Dean could not be regarded as comparable and pointed out that the offender in that case had pleaded guilty, had been disqualified from driving for 15 months and, while on appeal the fine imposed was reduced from $1,000 to $600, the maximum fine at that time for a first offence of dangerous driving was $800. The respondent urged caution in drawing guidance from the cases dealing with assaults by police officers noting that in each of the cases to which the appellant referred the officers had pleaded guilty. The respondent contended that the fine of $2,500 was within the appropriate sentencing range for the following reasons:
(a)the appellant had pleaded not guilty in the face of a strong prosecution case;
(b)the fine was towards the maximum fine for the offence, however, the fine reflected the gravity of the offending - the appellant's driving could have resulted in Mr Farmer's death;
(c)the fine of $2,500 balanced the need for specific and general deterrence;
(d)on an objective view, the circumstances with which the appellant was confronted did not warrant driving at Mr Farmer with a motor vehicle; and,
(e)the sentence of $2,500 reminded serving police officers that they must not only drive substantially in accordance with the Commissioner's policies and guidelines but they must also, having regard to all the circumstances of the case, assess whether it is both reasonable and in the public interest, to drive in a particular manner in the execution of their duties.

Manifest excess - the applicable principles

A ground of appeal which alleges that a sentence is manifestly excessive asserts the existence of an implied error. Implied error arises where the end result is so unreasonable or unjust that the court must conclude that a substantial wrong has occurred.[51] Thus, an appellate court cannot substitute its own opinion for that of the sentencing court merely because the appellate court would have exercised a sentencing discretion differently.[52]
[51] Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321, 324 - 325 (Gleeson CJ & Hayne J); Slade v The State of Western Australia [2019] WASCA 65 [36] (Buss P & Beech JA).
[52] Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 [15] (Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne & Callinan JJ).
It is necessary, in determining whether a sentence is manifestly excessive, to examine it from the perspective of the maximum penalty for the offence, the standards of sentencing customarily observed with respect to the 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.[53]

Consideration

[53] Nguyen v The State of Western Australia [2019] WASCA 56 [17] - [19] (Buss P & Beech JA).

The magistrate's sentencing remarks were as follows:
As you have heard, I have convicted you of the offence of dangerous driving. It carries a maximum fine of $3000. There is no mandatory disqualification. Prosecution do not seek any licence disqualification. You have heard my findings. They were detailed, I know. They went for a long time, so I thank everyone for their patience. I accept you are otherwise a person of good character. I accept that you are a good police officer and you have been in the police force for over 20 years. I accept that this was out of character. I accept that there were circumstances that led to this happening. In my view, as I have said, I don't find that you deliberately struck Mr Farmer. I do find that you intended to block him. But you executed it poorly, and there are reasons why that might have happened, including that you were ‑ because of the preceding events, you were not thinking in a clear manner. You were injured. You were exhausted. But having said that, this was potentially serious. You could have killed Mr Farmer. Any time the police inside a police vehicle - any time a vehicle makes contact with a human could potentially cause very serious harm. Fortunately for Mr Farmer, fortunately for you, fortunately for everyone, the injuries were not serious. But it potentially could have been much worse. In my view, the appropriate penalty is a fine of $2500.
In approaching the issue of whether the fine of $2,500 was manifestly excessive I remind myself that I must not substitute my own opinion for that of the magistrate simply because I would have exercised the sentencing discretion in a different way.
I accept that there are insufficient decisions to establish a standard of sentencing or a tariff. The decision in Wintle v Dean does not provide assistance for the reasons articulated by the respondent. The assault by police officer cases provide a degree of assistance.
In my view, the offending in this case, whilst serious because it involved a collision between a vehicle and a person on foot who could have suffered much more serious injuries, was not at the upper end of the range of offending by dangerous driving. The appellant's vehicle was travelling slowly, just above walking speed. The appellant was not engaging in dangerous driving for enjoyment or thrills or to further another unlawful purpose. As was implicit in the magistrate's sentencing remarks, the appellant made an error of judgment and executed the blocking manoeuvre dangerously. If he had executed the manoeuvre more carefully he would not have exposed himself to any criminal liability. The level of criminality was at the lower end of the range.
As I have already recorded, and as was evidently accepted by the magistrate, the appellant was a long serving police officer with an exemplary record. The magistrate accepted that the appellant's conduct was out of character - personal deterrence was not a sentencing consideration of any significance.
In the case of offences of dangerous driving by police officers in the course of discharging their duties, the prospect of being prosecuted is itself a significant deterrent. The requirement to deter police officers from driving dangerously is not so great as to require the imposition of a fine of 85% of the maximum amount.
In my respectful view, having regard to the matters to which I have referred in the preceding paragraphs, a fine of $2,500 constitutes a result so unreasonable or unjust that I conclude that a substantial wrong has occurred. In my view, the fine was manifestly excessive. I grant leave to appeal in respect of ground 6. I will allow the appeal against sentence. I resentence the appellant and impose a fine of $1,250.
I will hear the parties as to the orders to be made and as to costs.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AS
Associate to the Honourable Justice Tottle
17 NOVEMBER 2020