Ninyette v The State of Western Australia

[2025] WASCA 52

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT  :   THE COURT OF APPEAL (WA)

CITATION:   NINYETTE -v- THE STATE OF WESTERN AUSTRALIA [2025] WASCA 52

CORAM:   MAZZA JA

MITCHELL JA

ARCHER JA

HEARD:   20 MARCH 2025

DELIVERED          :   17 APRIL 2025

FILE NO/S:   CACR 80 of 2024

BETWEEN:   ANTHONY PHILLIP NINYETTE

Appellant

AND

THE STATE OF WESTERN AUSTRALIA

Respondent

ON APPEAL FROM:

Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA

Coram:   HERRON DCJ

File Number            :   IND 1482 of 2023

Catchwords:

Criminal law - Sentencing - Appeal against sentence - Appellant convicted of one count of dangerous driving occasioning death and one count of failing to stop - Time in custody - Correct backdating date - Impact of mental health and deprived childhood on sentence

Legislation:

Road Traffic Act 1974 (WA), s 49AB, s 54, s 59
Sentencing Act 1995 (WA), s 87

Result:

Leave to appeal granted on grounds 1, 2 and 3
Appeal allowed
The order of the primary judge that the sentences are taken to have begun on 10 July 2023 is set aside and an order that the sentence is taken to have begun on 23 December 2022 is substituted

Category:    B

Representation:

Counsel:

Appellant	:	K Heath & C P Brennan
Respondent	:	K C Cook

Solicitors:

Appellant	:	Aboriginal Legal Service (WA)
Respondent	:	Director of Public Prosecutions (WA)

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

Baxter v The Queen [2007] NSWCCA 237; (2007) 173 A Crim R 284

Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571

Clarke v The Queen [2015] NSWCCA 232; (2015) 254 A Crim R 150

Duong v The Queen [2021] NTCCA 3; (2021) 288 A Crim R 566

Glasfurd v The State of Western Australia [2024] WASCA 7

Hordern v The Queen [2019] NSWCCA 138; (2019) 278 A Crim R 353

Kentwell v The Queen [2014] HCA 37; (2014) 252 CLR 601

Lee v Lee [2019] HCA 28; (2019) 266 CLR 129

Luo v The Queen [2020] WASCA 184

McGarry v The Queen [2001] HCA 62; (2001) 207 CLR 121

McLaughlin v The King [2025] NSWCCA 13

R v MDU [2024] QCA 113

R v Strbak [2019] QCA 42

SKL v The State of Western Australia [2024] WASCA 32

Strbak v The Queen [2020] HCA 10; (2020) 267 CLR 494

Suleiman v The State of Western Australia [2017] WASCA 26

SYO v The State of Western Australia [2024] WASCA 31

TH v The Queen [2019] NSWCCA 184

The State of Western Australia v Gibbs [2009] WASCA 7; (2009) 192 A Crim R 399

The State of Western Australia v Ridout [2024] WASCA 98

The State of Western Australia v Wilkins [2020] WASCA 149

Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465

Wellstead v The State of Western Australia [2019] WASCA 130

Willis v The Queen [2016] VSCA 176; (2016) 261 A Crim R 151

Wong v The Queen [2020] WASCA 195

JUDGMENT OF THE COURT:

Introduction

1. On 20 December 2022, the appellant rode a motorcycle dangerously, at more than 30 km per hour over the speed limit.  The appellant lost control of the motorcycle and collided with a bus.  His pillion passenger, who was also his friend, died at the scene.  Although he could not have saved her, the appellant did not stay with his friend, leaving her in the hands of a good Samaritan who was a stranger to her.  The appellant had never had a licence to ride a motorcycle and had been disqualified from holding or obtaining a driver's licence at the time of the collision.

2. For these crimes, the appellant was sentenced to a total effective sentence of 6 years' imprisonment, backdated to commence on 10 July 2023.  He seeks leave to appeal against that sentence.

3. There are three grounds of appeal.  They allege that:

   1.the learned sentencing judge erred in law by failing to take into account time the appellant had spent in custody for these offences, having wrongly concluded that it had been taken into account for other offending;

   2.the sentencing judge erred in fact in concluding that the appellant's neuropsychological impairments did not causally contribute to the dangerous driving offence; and

   3.the sentencing judge erred in law by failing to:

   (i)have regard to the impact of the appellant's background of trauma and social disadvantage when assessing his moral culpability; and/or

   (ii)explain in the sentencing reasons what impact the appellant's background of trauma and social disadvantage had on an assessment of his moral culpability.

4. The State concedes that ground 1 is established.  As we will explain below, we accept that concession.  We will also explain why it is unnecessary to determine the other grounds of appeal, and why the factual issue raised by ground 2 can be resolved by this court in re‑exercising the sentencing discretion.  We would resentence the appellant to the same sentences and total effective sentence as were imposed by the learned sentencing judge, but we would backdate the total effective sentence to 23 December 2022 to properly take account of time spent in custody on remand. 

The sentencing

The offences

1. The appellant was convicted, on his pleas of guilty, of two offences.

1. Count 1 alleged that the appellant drove a motor vehicle, namely a Yamaha motorcycle, in a dangerous manner and in two circumstances of aggravation, which caused the death of Ms Rianne‑Jade Clark.[1] 

   [1] Contrary to s 59(1)(b) of the Road Traffic Act 1974 (WA).

2. The first circumstance of aggravation was that, at the time of the offence, the appellant was disqualified from holding or obtaining an Australian driver's licence.[2]  The second circumstance of aggravation was that the appellant drove the vehicle at a speed of 30 km per hour or more above the speed limit.[3]

   [2] Contrary to s 49AB(1)(ab) of the Road Traffic Act.

   [3] Contrary to s 49AB(1)(b) of the Road Traffic Act.

3. Count 2 alleged that the appellant failed to stop and render assistance after an incident causing death.[4]

   [4] Contrary to s 54 of the Road Traffic Act.

4. The facts are as follows.[5]

   [5] AB 97 ‑ 101; appellant's submissions [3].

5. On 20 December 2022, the appellant was riding a Yamaha motorcycle east on Beach Road in Girrawheen with Ms Clark as the pillion passenger.  Beach Road is a sealed road with two lanes of traffic in each direction separated by a large median strip.  The speed limit was 70 km per hour.  The road was dry and there was good visibility.

6. At the time, the appellant's driver's licence was suspended.  Further, he had never obtained a licence to ride a motorcycle.

7. As the appellant was travelling east along Beach Road towards the intersection with Redcliffe Avenue, a Transperth bus moved into the middle of the intersection.  The bus was turning right onto Beach Road into the left‑hand lane, travelling in an easterly direction. 

8. The bus was travelling at approximately 20 km per hour as it entered the intersection.  The bus driver looked towards his left, in the direction which the appellant was travelling.  There was no traffic along Beach Road as the bus driver executed the right turn.

9. The appellant was travelling at an estimated speed between 114 and 142 km per hour.  The appellant braked hard (presumably on seeing the bus) before losing control of the motorcycle.  The motorcycle spun around on the ground before hitting the left side of the bus.

10. Ms Clark was thrown from the motorcycle and under the front of the bus.  She was run over by the front left tyre of the bus, suffering severe injuries. 

11. The appellant ran to a nearby home and asked the occupant, Ms Narrier, for help for Ms Clark.  Ms Narrier called the police.  The appellant stayed at Ms Narrier's house for a few minutes before running back towards the crash scene and speaking to a member of the public, Mr Ioppolo.  Mr Ioppolo had stopped to help and was on his phone to a 000 operator.

12. Ms Clark was semi‑conscious with limited breathing.  The appellant tried to lift her off the ground, despite Mr Ioppolo telling him not to touch her.  The appellant collected his shoes and again ran from the scene, leaving his helmet behind. 

13. Ms Clark died at the scene.

14. On 23 December 2022, the police located the appellant hiding behind a couch, and arrested him.  The appellant had cuts and abrasions on his body, including over his knuckles.

15. The appellant participated in an electronic record of interview.  He denied that he was driving the motorcycle and gave various explanations for his injuries.  Despite being told that some witnesses at the scene had identified him, the appellant maintained that the crash had nothing to do with him.  DNA testing later established that the blood inside the visor of the motorcycle helmet was the appellant's blood.

16. The sentencing judge found that it was unclear whether the appellant had used methylamphetamine on the day of the incident.

17. At the time of the offending, the appellant was on bail for other offences.

The sentence

1. The sentencing judge applied a 12.5% discount for the appellant's pleas of guilty.

2. The appellant was sentenced to 5 years' immediate imprisonment on count 1, and 12 months' immediate imprisonment (reduced from 3 years 3 months' imprisonment for totality) on count 2, cumulative upon count 1. 

3. The total effective term of 6 years' imprisonment was backdated to 10 July 2023, to take account of time spent in custody on remand.  The appellant was made eligible for parole.  The sentencing judge also ordered that the appellant be disqualified from holding or obtaining a driver's licence for 5 years, to commence from the day he was released from prison, and to be cumulative on any existing period of disqualification.

Ground 1 – Was all of the time in custody taken into account?

1. The sentencing judge backdated the sentence to 10 July 2023 to take into account the appellant's time in custody from that date.  In doing so, the sentencing judge accepted the position advanced by the prosecutor at the sentencing hearing.  The prosecutor (who was not counsel on appeal) submitted that the period from 23 December 2022 to 9 July 2023 was not time in custody in relation to these offences, and therefore could not be taken into account.[6]  However, in this appeal, the State concedes that that submission was wrong, and the sentencing judge was wrong to conclude that that period was not time spent in custody in relation to these offences.  The State agrees that the sentencing judge should have backdated the sentence to 23 December 2022. 

   [6] AB 136 [23], [25].

2. For the following reasons, we accept the State's concession that ground 1 is established.

3. The appellant was remanded in custody on multiple summary charges from 21 March 2022 to 19 October 2022 (213 days), before being released on bail.  On 23 December 2022, he was arrested for the charges arising from the events on 20 December 2022 (indictable charges) and remanded in custody on those charges.

4. He spent the period from 23 December 2022 to 9 July 2023 (200 days) in custody as a result of the indictable charges.

5. On 10 July 2023, he was sentenced in the Magistrates Court for the summary offences.  He was given a total effective sentence of 213 days' imprisonment, which was backdated to 9 December 2022 to account for the 213 days he had spent in custody on remand for the summary charges (from 21 March 2022 to 19 October 2022).[7]

   [7] AB 150 - 151, 153 - 155.

6. On 18 July 2024, the appellant was convicted of the indictable charges. He was sentenced by the sentencing judge to 6 years' imprisonment, backdated to 10 July 2023 (the expiry of the Magistrates Court sentence).

7. In table form, the chronology is as follows:

Item	Dates	Event
1	21 March 2022 ‑ 19 October 2022 (213 days)	First period in custody The appellant is in custody on multiple summary charges, before being released on bail.
2	20 December 2022	The appellant commits the indictable offences.
3	23 December 2022 ‑  9 July 2023 (200 days)	Second period in custody The appellant is arrested for the indictable offences and returned to custody.
4	10 July 2023	Magistrates Court sentencing The appellant is sentenced in the Joondalup Magistrates Court to 213 days' imprisonment, backdated to 9 December 2022 (being 213 days before the sentencing date) to take into account the 213 days he had spent in custody on the summary offences referred to in item 1 of this table.
5	18 July 2024	District Court sentencing The appellant is sentenced by Herron DCJ to 6 years' imprisonment for the indictable offences, backdated to 10 July 2023 (the expiry of the backdated Magistrates Court sentence).  This took into account only the time in custody after the expiry of the Magistrates Court sentence. The time in custody from 23 December 2022 (arrest on the indictable charges) to 9 July 2023 (the day before being sentenced in the Magistrates Court), being a total of 200 days, was not taken into account.

1. Counsel for the State in the sentencing hearing submitted that it was not open to the sentencing judge to take account of any of the time in custody prior to the date on which the Magistrates Court sentence had been imposed, which was 10 July 2023. He submitted that, under s 87 of the Sentencing Act 1995 (WA), the Magistrates Court sentence was taken to have begun on the date specified by the magistrate, which was 9 December 2022. He submitted that the effect of the Magistrates Court sentence was that any time in custody prior to 10 July 2023 was time in custody for the summary offences.[8] 

   [8] AB 136 [23], [25].

2. This was incorrect.

3. Section 87 of the Sentencing Act is a facilitative statutory mechanism for allowing credit to be given for time on remand by backdating or reducing a sentence.  If a sentence is backdated, the backdated date will not necessarily be a date that corresponds to the day on which the time in custody began; rather, it may be a notional date chosen to reflect the period of custody that was taken into account.  As was explained by this court in The State of Western Australia v Wilkins,[9] a sentence runs from the time it is backdated even though the offender may not have actually been in custody during that period.

   [9] The State of Western Australia v Wilkins [2020] WASCA 149 [110] - [119].

4. If the appellant had been sentenced for the summary offences on 19 October 2022, he would have been immediately released on that date.  When he came to be sentenced for the indictable offences, it would have been clear that he had been in custody in relation to those offences since his arrest on 23 December 2022, and that there was a need to consider whether that time should be taken into account in sentencing him for those offences.  No different result follows simply by the Magistrates Court imposing its sentences for the summary offences on a different date.

5. The fact that the Magistrates Court sentence was, by the backdating, notionally imposed across the same period of time in which the appellant had in fact been in custody on the indictable charges did not alter the character of those 200 days as being time spent in custody in relation to the indictable charges.  Accordingly, the sentencing judge erred in concluding that it was not open to him to take into account those 200 days.

6. Ground 1 has been established.

Consequence of ground 1 being established

1. It is then appropriate to consider the effect of our conclusion that ground 1 is established, particularly as regards the challenge in ground 2 to the sentencing judge's finding that the appellant's neuropsychological impairments did not causally contribute to the dangerous driving offence.

2. Under s 23(1)(b) of the Criminal Appeals Act 2004 (WA), an offender convicted of an offence on indictment may appeal to this court against the sentence imposed on the offender as a result of the conviction. Under s 31(4)(a) of that Act, this court may allow the appeal if, in its opinion, a different sentence should have been imposed. Under s 31(5), if this court allows the appeal, it must set aside the sentence and may instead impose a sentence that is either more or less severe, or may send the charge back to the court that imposed the sentence to be dealt with further. Section 41 provides for the powers of this court when it decides to vary or set aside a sentence.

3. These provisions do not derogate from the fundamental character of a sentence appeal.  As this court has held:[10]

   The essential role of this court on an appeal against sentence is to discern whether there was error or a miscarriage of justice below in the sentencing.  Only if there was error or a miscarriage of justice does this court proceed to the second stage of re‑exercising the sentencing discretion and deciding whether a different sentence should have been imposed.

   [10] See Wellstead v The State of Western Australia [2019] WASCA 130 [87] and cases there cited.

4. When material error is established in the exercise of the sentencing discretion, this court then considers for itself the sentence which it considers to be appropriate.  If, in the independent exercise of its discretion, it would impose the same sentence as the sentencing judge then this court will dismiss the appeal, notwithstanding the error detected or inferred, on the basis that it considers that no different sentence should have been imposed.[11]

   [11] Wellstead [89].

5. When the court identifies error, it does not merely adjust the sentence passed by the sentencing judge to allow for the error identified.  That would be to proceed on the assumption that the sentencing judge was presumptively correct, when the court has determined that the exercise of the discretion had miscarried.[12]  Rather, when material error is identified in part of a single sentencing decision, this court must set aside the whole of the sentence imposed by the sentencing judge and itself resentence the offender.[13]

   [12] See Kentwell v The Queen [2014] HCA 37; (2014) 252 CLR 601 [40] citing Spigelman CJ in Baxter v The Queen [2007] NSWCCA 237; (2007) 173 A Crim R 284 [19].

   [13] McGarry v The Queen [2001] HCA 62; (2001) 207 CLR 121 [8] - [9].

6. Decisions of intermediate appellate courts in other jurisdictions have considered the standard of appellate review which applies in a challenge to findings of primary fact made by a sentencing judge.  In some cases, the question which has been posed is whether it was reasonably open to the sentencing judge to make the challenged factual finding.  In other cases, the approach has been analogous to that taken in civil cases where, as the High Court observed in Lee v Lee:[14]

   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)

   [14] Lee v Lee [2019] HCA 28; (2019) 266 CLR 129 [55].

7. Differing views have been expressed by different judges in New South Wales, and the issue does not appear to have been authoritatively resolved in that jurisdiction.[15]  The more restrictive view has been maintained in Victoria.[16]  In Queensland, the court in R v Strbak,[17] and a majority of the court in R v MDU,[18] preferred, but did not authoritatively rule in favour of, the broader approach.  The Court of Criminal Appeal of the Northern Territory settled on the broader approach in Duong v The Queen.[19]  This court has not found it necessary to resolve the question for Western Australia.[20]

   [15] See Clarke v The Queen [2015] NSWCCA 232; (2015) 254 A Crim R 150 [19] ‑ [36] (per Basten JA adopting a broader approach), [97] ‑ [99] (per Garling J adopting a more restrictive approach), [133] - [137] (per Hamill J preferring a broader approach but noting that the issue may best be resolved by a court of five judges); Hordern v The Queen [2019] NSWCCA 138; (2019) 278 A Crim R 353 [6] ‑ [20] (per Basten JA adopting a broader approach, Hamill J agreeing at [82]), [86] ‑ [91] (Lonergan J not deciding); TH v The Queen [2019] NSWCCA 184 [22] ‑ [24] (Davies J not deciding, Leeming JA agreeing at [1] and Hidden AJ agreeing at [54]); McLaughlin v The King [2025] NSWCCA 13 [1] (Hamill J adopting a broader view), [142] ‑ [143] (N Adams J adopting a more restrictive approach, Coleman J agreeing at [181]).

   [16] Willis v The Queen [2016] VSCA 176; (2016) 261 A Crim R 151 [94] (per Weinberg & Beach JJA, Priest JA agreeing at [203]).

   [17] R v Strbak [2019] QCA 42 [14] ‑ [29] (per McMurdo JA, Fraser JA agreeing at [1], Crow J agreeing at [64]). Although an appeal from this decision was allowed in Strbak v The Queen [2020] HCA 10; (2020) 267 CLR 494, the High Court did not deal with the standard of appellate review.

   [18] R v MDU [2024] QCA 113 [76] ‑ [92] (per Dalton JA & Davis J, Morrison JA adopting the more restrictive approach at [40] ‑ [46]).

   [19] Duong v The Queen [2021] NTCCA 3; (2021) 288 A Crim R 566.

   [20] See Luo v The Queen [2020] WASCA 184 [77] ‑ [83]; Wong v The Queen [2020] WASCA 195 [73].

1. It is also unnecessary to enter this controversy in the present case.  Material error in the exercise of the sentencing discretion has been established for reasons other than factual error by the sentencing judge.  It is unnecessary for this court to determine ground 2 which contends that the judge made an error of fact before re‑exercising the sentencing discretion for itself.  Ordinarily the court would resentence on the facts found by the sentencing judge except to the extent those findings were challenged.  However, in the present case this court is in as good a position as the sentencing judge, who acted on agreed facts and documentary evidence, to resolve the question of whether there is a causal connection between the appellant's mental health issues and the offending.  At the hearing of the appeal, both the appellant and the State were content for this court to form its own view of that question on the evidence.  In the particular circumstances of this case, we are prepared to adopt that approach.

2. It is also unnecessary for this court to determine ground 3, because it alleges an error of law.  As the appellant must be resentenced, it is unnecessary to consider whether the sentencing judge failed to have regard to, or explain, the impact of the appellant's deprived childhood.  In resentencing the appellant, we will consider and explain what that impact was.

Resentencing

1. This court has the material necessary to resentence the appellant.

2. At the hearing of the appeal, counsel for the appellant did not put forward any facts or circumstances that had occurred since the appellant was sentenced that were relevant to any resentencing.

The seriousness of the offending

1. The circumstances of the offending are set out above.  The seriousness of offences of this type is reflected in the maximum penalties.

2. Dangerous driving causing death attracts a maximum penalty of 20 years' imprisonment if committed in circumstances of aggravation.  In this case, there were two circumstances of aggravation - that the appellant was disqualified from holding or obtaining a licence, and that he drove the vehicle at a speed of 30 km per hour or more above the speed limit.  The vehicle was also a motorcycle, making his passenger particularly vulnerable. 

3. Where a driver fails to stop and render assistance after a traffic incident causing death, the maximum penalty is imprisonment for 20 years.  In this case, the appellant fled the scene in panic.  He sought help from a nearby home and returned to the scene briefly, before fleeing again.  When he left the second time, there were people attending to Ms Clark.  The sentencing judge found that Ms Clark's injuries were so serious that the appellant's failure to immediately render assistance was unlikely to have altered the course of events.[21]  However, it caused her loved ones significant distress to know that she had died among strangers.

   [21] AB 101.

4. The offences were committed while the appellant was on bail.

Appellant's personal circumstances[22]

[22] AB 101 ‑ 104; report of Ms Helen Fowler, a clinical psychologist, dated 8 July 2024 (Fowler Report).

1. At the time of sentencing, the appellant was aged 31.

2. The appellant is the fifth of eight children.

3. The appellant's childhood was dysfunctional, disadvantaged and traumatic.

4. The appellant was exposed to trauma, drug use and violence from a young age.  The appellant's parents sold and used drugs.  The family home was frequently visited by drug users, people purchasing drugs and by people involved in criminal activity.  On one occasion, a person involved in criminal activity broke into their home, pulled the appellant out of bed, and put a gun to his mouth.

5. The appellant's father was frequently physically violent towards the appellant's mother, the appellant, and his siblings.  On one occasion, the appellant's father turned on the gas and threatened to blow everyone up, which led to police becoming involved.

6. The appellant's parents separated when he was aged 10.  His father suffered brain damage from a drug overdose and, on being released from hospital, went to live with his mother (the appellant's grandmother).  The appellant had a poor relationship with his paternal grandmother who blamed the appellant's mother for his father's overdose.

7. The appellant left mainstream education at age 13, and was in specialised education until about age 16.  During his school years, the appellant's home life was dysfunctional, and he had little, if any, stability and support.

8. In 2006, when the appellant was aged 14, his mother was sentenced to a lengthy term of imprisonment for drug dealing.  As a result, the appellant was looked after by his 17‑year‑old sister, who had two children of her own.  After his mother's imprisonment, the appellant's criminal behaviour increased.  He told a clinical psychologist, Helen Fowler, that he 'couldn't be controlled' and did 'stupid things'.[23]

   [23] Fowler Report [28].

9. In around 2009, the appellant's older brother died as a result of being electrocuted at work.  The appellant worked with his brother at the time and was also at work that day.  The death of the appellant's brother had, and continues to have, an impact on the appellant's life.

10. The appellant has had limited contact with his mother since her release from prison in 2012.  She suffered a brain aneurysm in about 2019, which caused partial paralysis and loss of speech.  She requires a wheelchair and carer.

11. The appellant was in a long‑term relationship from about 2012.  That relationship was initially marred by mutual illicit drug use.  The appellant's partner ceased drug use when she fell pregnant with the appellant's first child and has since led a prosocial lifestyle.  The appellant has two children from this relationship, a daughter born in 2014, and a son born in 2020.

12. From about 2017 ‑ 2022, the appellant stopped using illicit drugs and obtained work, first as a FIFO worker and later working as a furniture removalist in Perth.  However, the appellant relapsed into drug use and criminal activity, which ended his relationship with his former partner.  Nevertheless, she provided a character reference, as did her parents, and her mother's best friend.  Each spoke very highly of him and are supportive of him.

13. The appellant entered pleas of guilty to the offences, although not at an early stage, and in light of a strong prosecution case.  The sentencing judge discounted the sentences by 12.5% for the pleas.[24]

    [24] AB 112.

14. The sentencing judge accepted that the appellant had shown genuine remorse and was starting to show some insight into his offending and the trauma it had caused the victim's family.[25]

Deprived childhood and mental health

[25] AB 104.

1. It is well‑settled that an offender's mental illness may impact on a sentence in a variety of ways.  So too, where the offender had a deprived childhood.  Relevantly to this case, both mental illness and a deprived childhood may reduce an offender's moral culpability. 

2. Before mental impairment can be found to have reduced an offender's moral culpability, the offender must prove, on the balance of probabilities, a causal connection between the impairment and the commission of the offence.  The offender must prove that the condition impaired his or her mental functioning to such an extent as to reduce the blameworthiness or culpability of the offending behaviour.[26]

   [26] Suleiman v The State of Western Australia [2017] WASCA 26 [60].

3. In Bugmy v The Queen,[27] the High Court recognised that an offender's deprived childhood can impact on the sentencing process in a number of different ways.  The principles that emerge from Bugmy were recently discussed by this court in SYOv The State of Western Australia.[28]  Without purporting to set out an exhaustive list, the court identified that an offender's deprived childhood may be relevant to sentencing in the following ways:[29]

   1.It may be relevant to the determination of a just sentence because it is causally connected to the offending.

   2.It may be relevant, as a mitigating factor, because the offender has managed to overcome a disadvantaged background, and the offence committed was out of character.

   3.It may help explain, or place into context, a pattern of offending and assist the assessment of the risk of re‑offending, prospects for rehabilitation, and any issues that may need to be addressed if rehabilitation efforts are to succeed.

   4.It may, in a particular case, bear upon the question of whether the offender's time in custody will be more onerous than might otherwise be the case.

   [27] Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571.

   [28] SYOv The State of Western Australia[2024] WASCA 31.

   [29] SYO [65].

4. As to the first point, where profound childhood deprivation has in some way impaired the capacity of an offender to behave lawfully, his or her moral culpability is reduced because of that impaired capacity.  Further, the impaired capacity may mean that personal deterrence will be less effective, and the impaired capacity may make the case a less appropriate vehicle for general deterrence.[30] 

   [30] SYO [70].

5. The reduction in moral culpability follows from the impact of something beyond the control of the offender on the capacity of the offender to behave lawfully.  This is to be distinguished from an offender whose capacity to behave lawfully is not impaired, but whose poor choices are influenced by childhood experience (such as poor parental role models or early exposure to alcohol and illicit substances).[31] 

   [31] SYO [69] ‑ [70].

6. It was common ground that the appellant's childhood experiences had impaired his mental health and contributed to his drug abuse.[32]  Further, the respondent did not resist a conclusion that the appellant's moral culpability had been reduced in relation to his decision to ride a motorcycle without a licence, and his flight from the scene.[33]  The issue in dispute was whether the appellant's moral culpability for the dangerous way in which he rode the motorcycle was reduced.

What does the evidence establish?

[32] Appeal ts 29 - 30, 33.  Before the sentencing judge, the State accepted that the appellant's background explained his descent into drug use as a teenager and a young man and why it has been difficult for him to stop using drugs (AB 94).

[33] Appeal ts 29 - 30.

1. Ms Fowler, a clinical psychologist, said that, as a result of his childhood experiences, the appellant suffers from Complex Post‑Traumatic Stress Disorder (CPTSD).[34]  Ms Fowler described CPTSD as a condition that develops as a 'consequence of prolonged and repeated exposure to multiple traumas from a young age, especially of an interpersonal or relational nature'.[35]

   [34] Fowler Report [55]. The State conceded that, while she used less direct terms in her report, this was the effect of her report - appeal ts 33.

   [35] Fowler Report [56].

2. Ms Fowler noted that the appellant was raised in a family environment where substance misuse was normalised.  She said that his consistent exposure to his parents' substance use and its consequences meant that, during his early and crucial psychological and neurological development, he was not exposed to any modelling of functional coping skills.[36]

   [36] Fowler Report [57] - [58].

3. Ms Fowler said that, as a further consequence of the appellant's home environment and its associated childhood trauma, his physiological system would have been in 'fight or flight' mode constantly.[37]

   [37] Fowler Report [58].

4. Ms Fowler said:

   63.Mr Ninyette's experience of CPTSD contributes to his fight or flight response being hypersensitive.  This causes his decision‑making, including consequential thinking and problem‑solving, to be impoverished.  His use of methylamphetamine, in my opinion, is likely to exacerbate his trauma‑related impulse control and decision‑making problems.

   64.The combination of the neuropsychological impacts of CPTSD and methylamphetamine use, in my opinion, explain Mr Ninyette's reckless decision to ride a motorcycle without a licence.  He has a compromised ability to consider the potential consequences of his decisions when they occur.  Following the traumatic accident and the fatal injuries to his friend, Mr Ninyette's immediate and conditioned response was to panic.

5. The respondent accepts that Ms Fowler's opinion was that the appellant's decision to ride a motorcycle without a licence and his panic after the accident were explained by the neuropsychological impacts of his CPTSD and methylamphetamine use.  The respondent submits, however, that Ms Fowler did not expressly say that these matters explained the appellant's manner of driving.[38]  

   [38] Respondent's submissions [13], [16]; appeal ts 30.

6. The respondent further submits that, even if Ms Fowler's report is to be read as expressing an opinion that there was a causal link between the CPTSD and the manner of driving, Ms Fowler did not explain her process of reasoning for reaching that opinion.[39]

   [39] Respondent's submissions [18].

7. We accept that Ms Fowler's report could have been more clearly expressed.  However, we are satisfied, on the balance of probabilities, that the CPTSD impaired the appellant's decision‑making ability (including consequential thinking and problem‑solving) and his ability to consider the potential consequences of his decisions.  We are further satisfied, on the balance of probabilities, that his mental functioning was impaired to such an extent as to reduce his moral culpability for the offending behaviour in both counts. 

8. Ms Fowler directly states that the combination of the neuropsychological impacts of CPTSD and methylamphetamine use contributed to his reckless decision to ride a motorcycle without a licence.  Ms Fowler directly states that the appellant's flight from the scene was a conditioned response of panic.  Ms Fowler further states that the appellant's CPTSD contributes to his fight or flight response being hypersensitive, which causes his decision‑making, including consequential thinking and problem‑solving, to be impoverished. 

9. The gravamen of the offending in count 1 was the dangerous manner in which the motorcycle was ridden, aggravated by the initial decision to ride the motorcycle without a licence.  Both quintessentially reflect poor decision-making, a failure to consider or weigh the potential consequences of his actions for the safety of himself and others, and poor impulse control.  There was no evidence that any of his actions were planned, calculated or premeditated.  Riding a motorcycle at high speed is the act of a person who is not thinking about the potential risks and consequences.

10. Further, the appellant's history of similar offending is consistent with a persistent lack of rational calculation of the consequences of his behaviour when making decisions, including the possible consequence of criminal sanction, and a compromised capacity to learn from experience.

What is the impact on sentence of his mental health and deprived childhood?

1. The appellant concedes that both mental health and a deprived childhood may be 'double‑edged swords'.[40]  On the one hand, they may indicate that a lower sentence should be imposed because, for example, the offender's moral culpability was reduced.  On the other hand, they may indicate that there is an increased risk that the offender will offend again, and that greater weight should be given to the need to protect the community from that risk.[41]

   [40] Appeal ts 9, 13.

   [41] See Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465, 472, 476; SKL v The State of Western Australia [2024] WASCA 32 [24] ‑ [29]; Bugmy [45].

2. The appellant accepts that the need to protect the community is a relevant consideration.  However, he submits that he has demonstrated that he is capable of overcoming his mental health issues and impaired capacities, and remaining law‑abiding for a significant period of time.[42]

   [42] Appeal ts 11.

3. We accept that the appellant's deprived childhood and mental health issues will mean that personal deterrence will be less effective, and his suitability as a vehicle for general deterrence is reduced.  For these reasons, we would moderate the weight we would give to personal and general deterrence as sentencing considerations. 

4. In our view, in the circumstances of this case, the appellant's deprived childhood and mental health issues increase the significance of community protection as a sentencing consideration.

5. We accept that the appellant is capable of overcoming his mental health issues and impaired capacities, and abstaining from drugs and criminal offending.  Unfortunately, his history demonstrates that he is not able to maintain this.  In one sense, this is not surprising.  In view of his childhood, his impaired capacities, and his long‑term drug abuse, it is greatly to his credit that he was able to live a law‑abiding life for as long as he did.  Nevertheless, the fact remains - he has impaired capacities and a long history of drug abuse and criminal offending. 

6. Ms Fowler said that the appellant's psychological treatment needs are long term and require a treating psychologist with expertise in complex post trauma, attachment disorders, and substance use and their link to offending behaviour.  She said that his dependency on substances was linked to his difficulty in coping with past traumas and his lack of skills to cope with the demands of everyday life.  She said that, as a result, treatment will also need to focus on helping him learn functional problem-solving and consequential thinking skills, and the ability to manage his anxieties and periods of emotional dysregulation when confronted by challenging life events.[43]

   [43] Fowler Report [68] - [69].

7. Ms Fowler said that the appellant's risk of re-offending is directly linked to his future ability to address his dependency on methylamphetamine and him establishing a prosocial and professional support network.[44]

   [44] Fowler Report [70].

8. As matters stand, there is a significant risk that the appellant may re‑offend in a similar manner.  In determining the sentence that is commensurate with the seriousness of the offending, the need to protect the community from that risk is to be accorded significant weight.

Time in custody

1. As established by ground 1 of the appeal, the appellant was in custody on these charges from 23 December 2022 ‑ 18 July 2024, a total of 573 days. 

Comparable cases for aggravated dangerous driving

1. There is no tariff for offences of aggravated dangerous driving causing death because of the wide variety of circumstances in which they can occur and the differences in the personal circumstances of individual offenders.  There are no established sentencing patterns with respect to this offence.[45]

   [45] Glasfurd v The State of Western Australia [2024] WASCA 7 [88] - [96].

2. In two decisions delivered last year, this court reviewed cases in which offenders had been sentenced for this offence - Glasfurd v The State of Western Australia and The State of Western Australia v Ridout.[46]  Neither of those cases, and none of those cases they reviewed, are directly comparable to the present case. 

   [46] Glasfurd [91] - [97]; The State of Western Australia v Ridout [2024] WASCA 98 [40] ‑ [46].

3. In Glasfurd, the court reviewed the facts and sentences imposed in six cases.  The sentences ranged from 5 years 6 months' imprisonment to 8 years' immediate imprisonment. 

4. In Ridout, the court reviewed the sentences imposed in six cases, including four of the cases reviewed in Glasfurd and the sentence imposed in Glasfurd itself.  Apart from one case, The State of Western Australia v Gibbs,[47] the sentences ranged from 5 years 6 months' imprisonment to 8 years' immediate imprisonment.  In Gibbs, a majority of this court dismissed a State appeal brought on grounds which included that individual sentences of 3 years' immediate imprisonment for each of the aggravated dangerous driving occasioning death offences were manifestly inadequate.  There were mitigating factors in that case that are not present in this case - Mr Gibbs was generally of good character and had suffered serious consequences as a result of his offending.  Further, he had pleaded guilty at the earliest reasonable opportunity, for which he had been given a 25% reduction in his sentence (compared to the 12.5% given to the appellant in this case).

   [47] The State of Western Australia v Gibbs [2009] WASCA 7; (2009) 192 A Crim R 399.

1. In Ridout itself, the court increased the sentence imposed for the offence of aggravated dangerous driving occasioning death to 4 years 4 months' immediate imprisonment.  Although the dangerousness of the driving was greater in Ridout, there were significant mitigating factors in that case that are not present in this case.  In particular, Mr Ridout was 18 years old and had good antecedents.  In addition, he had been given a 20% discount for his plea of guilty.

Failing to stop

1. As noted earlier, the appellant was sentenced to 12 months' immediate imprisonment on count 2, cumulative upon count 1.  The sentencing judge had reduced this term from 3 years 3 months' imprisonment to ensure that the total effective term was just.  The appellant rightly does not suggest that the individual sentence was too high and concedes that the sentences for counts 1 and 2 should be cumulative.[48]

   [48] Appeal ts 24.

Appropriate penalty

1. The appellant accepted that the seriousness of the offences required a term of immediate imprisonment.  Each offence carries a maximum penalty of 20 years' imprisonment.  The appellant was on bail at the time of the offending.  The tragic death of Ms Clark and its circumstances have had a very significant impact on her family. 

2. As discussed earlier, because of the appellant's mental health and deprived childhood, the appellant's moral culpability for the offending was reduced, and the significance of personal and general deterrence as sentencing considerations is moderated.  However, the appellant's impaired ability to avoid offending resulting from his mental health issues and deprived childhood elevates the significance of community protection as a sentencing consideration.

3. In addition to reducing his moral culpability, the appellant's mental health and deprived childhood contextualise and explain his drug abuse and, no doubt, much if not all of his prior offending.  We also consider it mitigating that the appellant was, despite his deprived childhood and entrenched drug use, able to resist taking drugs for a lengthy period, of about four years.  During that time, he did not re-offend, he worked hard, he provided for his family, and he was kind and generous to his loved ones.  He retains the support of his ex‑partner and her parents, each of whom spoke highly of him.  

4. Other mitigating factors include his genuine remorse and his growing insight into his offending and the trauma his offending has caused the victim's family and friends.  Consistent with this, the appellant offered to participate in victim‑offender mediation, to apologise to Ms Clark's mother and to a friend.

5. Further, the appellant's time in custody on remand was difficult, as he spent long periods of time in isolation and lockdown, and he had not been able to access counselling and treatment.[49]

   [49] AB 108.

6. Under s 9AA of the Sentencing Act, we would reduce the sentences we would otherwise have imposed before taking mitigating factors into account on account of his pleas of guilty.  Like the sentencing judge, we would allow a discount of 12.5%.

7. The matters of mitigation are undoubtedly significant.  However, having regard to all relevant sentencing considerations, including the seriousness of the offending and the need to protect the community, we would not reach a different outcome than that reached by the sentencing judge, save for the date to which the sentences should be backdated.

8. We would exercise the sentencing discretion afresh by imposing a sentence of 5 years' imprisonment for count 1, and 2 years 7 months' imprisonment for count 2. 

9. Each offence represents a distinct offence.  Some degree of accumulation of those sentences is required to reflect the overall criminality involved in all of the offending. 

10. We consider that a total effective sentence of 6 years' imprisonment is required to properly mark the seriousness of the offending and to give effect to all relevant sentencing considerations.  To achieve this, we would reduce the sentence we would otherwise impose on count 2 to 12 months' imprisonment, and order that that sentence be served cumulatively on the sentence imposed for count 1.

11. The sentence should be backdated to 23 December 2022 to take account of the time the appellant spent in custody in relation to these charges.[50]

    [50] Criminal Appeals Act, s 41(3)(c). See also Wilkins [97].

12. The appellant should remain eligible for parole.  He will be eligible to be considered for release on parole when he has served 4 years' imprisonment, calculated from 23 December 2022.

13. Finally, we are required to impose a licence suspension of not less than 2 years.  Like the sentencing judge, we would order that the appellant be disqualified from holding or obtaining a driver's licence for 5 years, to commence from the day he is released from prison, and to be cumulative on any existing period of disqualification. 

14. In the circumstances, the only adjustment to the sentences imposed by the trial judge which this court needs to make is to vary the backdating date.

Orders

1. For the above reasons, we would make the following orders:

   1.Leave to appeal is granted on grounds 1, 2 and 3.

   2.The appeal is allowed.

   3.The order that the sentences imposed by the District Court of Western Australia on IND/1482/2023 are taken to have begun on 10 July 2023 is set aside and an order that the total effective sentence of 6 years' imprisonment is taken to have begun on 23 December 2022 is substituted.

   4.The appellant remains eligible for parole.

   5.The appellant remains disqualified from holding or obtaining a driver's licence for 5 years, to commence from the day he is released from prison, and to be cumulative on any existing period of disqualification.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

NC

Associate to the Hon Justice Archer

17 APRIL 2025