Paulose v The State of Western Australia
[2019] WASCA 182
•15 NOVEMBER 2019
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: PAULOSE -v- THE STATE OF WESTERN AUSTRALIA [2019] WASCA 182
CORAM: BUSS P
MAZZA JA
HEARD: 25 OCTOBER 2019
DELIVERED : 15 NOVEMBER 2019
FILE NO/S: CACR 113 of 2019
BETWEEN: BIJU PAULOSE
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram: McGRATH J
File Number : INS 21 of 2019
Catchwords:
Criminal law - Appeal against sentence - Appellant convicted of one count of unlawful killing, one count of dangerous driving occasioning grievous bodily harm while under the influence of alcohol, two counts of failing to stop immediately after the occurrence of an incident and render assistance and two counts of failing to report an incident forthwith to the police - Pleas of guilty - Total effective sentence of 9 years' imprisonment - Totality principle
Legislation:
Criminal Code (WA), s 280
Road Traffic Act 1974 (WA), s 54(1), s 54(2), s 56(2), s 59(1)(a)
Result:
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | In person |
| Respondent | : | No appearance |
Solicitors:
| Appellant | : | In person |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Barbaro v The Queen [2014] HCA 2; (2014) 253 CLR 58
Billing v The State of Western Australia [2017] WASCA 80; (2017) 80 MVR 127
Brown v The State of Western Australia [2011] WASCA 111; (2011) 207 A Crim R 533
Farmer v The State of Western Australia [2007] WASCA 219
Francis v The State of Western Australia [2019] WASCA 43
Gaskell v The State of Western Australia [2018] WASCA 8
Giglia v The State of Western Australia [2010] WASCA 9
Moore v The State of Western Australia [2019] WASCA 35
Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600
Penny v The State of Western Australia [2006] WASCA 173; (2006) 33 WAR 48
R v Pham [2015] HCA 39; (2015) 256 CLR 550
Roffey v The State of Western Australia [2007] WASCA 246
Taylor v The State of Western Australia [2007] WASCA 218; (2007) 177 A Crim R 81
The State of Western Australia v Berry [2016] WASCA 113; (2016) 76 MVR 285
The State of Western Australia v Doyle [2017] WASCA 207
The State of Western Australia v Garlett [2007] WASCA 274
The State of Western Australia v Paulose [2019] WASCSR 79
The State of Western Australia v Tittums [2018] WASCA 23; (2018) 83 MVR 476
JUDGMENT OF THE COURT:
This is an application for leave to appeal against sentence.
The appellant was convicted, on his pleas of guilty, of:
(a)one count of unlawful killing, contrary to s 280 of the Criminal Code (WA) (the Code);
(b)one count of dangerous driving occasioning grievous bodily harm while under the influence of alcohol, contrary to s 59(1)(a) of the Road Traffic Act 1974 (WA) (the RT Act);
(c)two counts of failing to stop immediately after the occurrence of an incident and render assistance, contrary to s 54(1) and s 54(2) of the RT Act; and
(d)two counts of failing to report an incident forthwith to the police, contrary to s 56(2) of the RT Act.
On 5 July 2019, McGrath J imposed the following individual sentences of immediate imprisonment:
(a)the count of unlawful killing: 8 years;
(b)the count of dangerous driving occasioning grievous bodily harm while under the influence of alcohol: 1 year (reduced from 3 years 10 months in the application of the totality principle);
(c)each of the counts of failing to stop immediately after the occurrence of an incident and render assistance: 3 years 6 months; and
(e)each of the counts of failing to report an incident forthwith to the police: 2 years.
His Honour ordered that the sentence for the offence of dangerous driving occasioning grievous bodily harm while under the influence of alcohol (1 year) be served cumulatively upon the sentence for the offence of unlawful killing (8 years). His Honour also ordered that the sentences for the other counts be served concurrently with each other and concurrently with the sentence for the count of unlawful killing. The total effective sentence was therefore 9 years' imprisonment. A parole eligibility order was made.
The sole ground of appeal alleges, in essence, that the total effective sentence infringed the first limb of the totality principle.
We would refuse leave to appeal. The appeal must therefore be dismissed.
The facts and circumstances of the offending
The facts and circumstances of the offending were as follows.[1]
[1] See The State of Western Australia v Paulose [2019] WASCSR 79 (Sentencing Remarks).
On 31 July 2018, the appellant arranged to collect his nephew from the Midland train station. Some time before 6.00 pm, the appellant drove his motor vehicle approximately 9 km from his home in Jane Brook to the train station. The appellant had consumed alcohol before his departure.
At approximately 6.00 pm, the appellant collected his nephew from the train station and began driving to his home.
Throughout the journey, the road was dry, visibility was clear and the street lights were illuminated.
Approximately 2 km from the train station, whilst in the left-hand lane of Great Eastern Highway, a witness saw the appellant's vehicle drift into the right-hand lane and then drift back into the left-hand lane.
Approximately 60 m further down the road, the appellant's vehicle again drifted from the left-hand lane to the right-hand lane and then back again.
The appellant approached the intersection of Great Eastern Highway and Roe Highway. The traffic lights at the intersection were either amber or red. The sentencing judge found that the appellant went through the amber lights, but the lights changed to red as the appellant entered the intersection.[2] The appellant failed to slow down or attempt to stop. The appellant went through the intersection at approximately 60 km per hour.
[2] Sentencing Remarks [28].
At the intersection of Farrall Road and Great Eastern Highway, the appellant entered the left-hand turning lane without indicating and turned left onto Farrall Road, driving in a northerly direction. Farrall Road runs north to south with one lane in each direction.
At about 6.23 pm, the appellant drove past the intersection of Farrall Road and Jenark Way. The appellant then veered suddenly to the right and his vehicle mounted the central traffic island between the lanes.
The appellant made no attempt to brake. His vehicle collided with two young males aged 16 and 15 years (being Blake O'Neill and Kayden McPhee respectively), and narrowly avoided colliding with another male aged 12 years, all of whom were standing on the traffic island waiting to continue crossing Farrall Road.
Mr McPhee sustained life threatening injuries which required urgent medical attention. He was transported to Royal Perth Hospital and placed on life support. Later, his life support was removed and he died on 9 August 2018 as a result of his injuries.
Mr O'Neill also sustained life threatening injuries which required urgent medical attention at Royal Perth Hospital. In particular, he suffered three fractures in his back between his shoulder blades, as well as bleeding in the brain.
Following the collision, the appellant drove from the scene. He failed to render assistance to either victim. He also failed to report the incident to the officer-in-charge of the nearest police station or to the Commissioner of Police in a manner approved by the Commissioner (s 56(1) RT Act).
The appellant claimed that he left the scene because he feared being assaulted. The sentencing judge found that there was no reasonable basis for this fear.[3]
[3] Sentencing Remarks [29] - [30].
At 9.00 pm on 31 July 2018, police obtained a blood sample from the appellant. Testing by a drug analyst revealed that the appellant had a blood alcohol level of 0.212 g of alcohol/0.100 mL of blood, calculated to have been 0.189 g of alcohol/0.100 mL of blood at the time of the collision. The appellant was therefore deemed to have been driving under the influence of alcohol at the time of the collision.
On 1 August 2018, the appellant participated in an electronically recorded interview at the Major Crash Investigation offices. He admitted that he had no explanation for the collision. He also admitted that he had consumed alcohol at home prior to driving to the train station.
The sentencing judge's sentencing remarks
The sentencing judge recounted the facts and circumstances of the offending in his sentencing remarks.
The appellant was born in India on 2 February 1970. He was aged 48 at the time of the offending and was 49 when sentenced. His childhood in India was unremarkable. He had a supportive family. His father died when the appellant was aged 17, after which the appellant's family experienced some financial difficulties.
The appellant attended schools in India and completed his secondary education to the equivalent of year 12. Subsequently, he completed a Bachelor of Accounting and a Diploma of Hotel Management. After completing his studies, the appellant spent a number of years working in the hospitality industry.
At the time of sentencing, the appellant had been married for over 17 years. He and his wife have two daughters, who were aged 10 and 15 at the time of sentencing. The appellant described his marriage as strong and his wife as supportive.
The appellant and his family migrated to Australia in 2015 after spending a number of years in Ireland. Upon arrival in Australia, the appellant purchased a food distribution business which he operated for a number of years. In April 2017, the business was damaged by a fire. This caused the appellant financial distress.
In 2017, the appellant's wife was diagnosed with breast cancer. Between February and May 2018 she underwent treatment, including chemotherapy. During this period, the appellant assumed the role of carer for his wife and children and was therefore unable to work. As a result, the appellant's business ceased trading.
The information before the sentencing judge included an undated pre-sentence report and a psychological report dated 17 June 2019. His Honour referred to the psychological report and noted that the appellant's business failure and his wife's illness had a significant impact on him. The appellant had commenced using alcohol as a means to cope. The appellant became aware that he was suffering from depression and sought assistance, but continued to drink alcohol. The psychological report outlined that the appellant struggled to manage stress and distress after his business failure, his financial difficulties and his wife's illness.
The psychological report described the appellant's physical and mental health history. The appellant reported good physical health. He had suffered from mental health issues (namely depression) before and after the offending. The psychologist noted that the appellant had developed a habit of drinking alcohol to excess, which promoted the appellant's belief that he could tolerate alcohol and that his behaviour was acceptable rather than excessive.
After the offending, the appellant sought assistance from a clinical psychologist to address his stress and the long-term impact of his offending. The sentencing judge had before him a report dated 29 May 2019 from the clinical psychologist, which outlined that the appellant had attended appointments regularly and appeared to be committed to his treatment. The appellant had also engaged his general practitioner, who had provided him with ongoing support, including a medical plan and prescribed medication to address the appellant's use of alcohol. The appellant reported that he had abstained from consuming alcohol since February 2019.
The psychological report assessed the appellant as being in the low category for future risk of offending. If the appellant continued to abstain from alcohol then he was considered unlikely to engage in behaviour that was harmful or dangerous to others.
The sentencing judge also had before him a number of references from community members. The references described the appellant's positive qualities. The appellant had undertaken charitable work through church cleaning and maintenance and had participated with food preparation for those in need. Letters from the appellant's wife and mother outlined the appellant's continued provision of support to his family and his positive role as a husband and a father to his daughters.
His Honour characterised the appellant's offending as serious. In particular, the seriousness of the offending was evident from the fact that the appellant:
(a)was heavily intoxicated;
(b)knew that he had been consuming significant amounts of alcohol during this period of his life;
(c)knew that he was intoxicated as he had consumed a significant amount of alcohol prior to driving;
(d)made the decision to drive in circumstances where he was clearly incapacitated;
(e)had no particular reason to drive beyond mere convenience;
(f)engaged in a gross breach of traffic rules, including drifting between lanes on multiple occasions, changing lanes without indicating and approaching an intersection without caution;
(g)made no attempt to brake after he mounted the traffic island; and
(h)left the scene without making any attempt to provide assistance.[4]
[4] Sentencing Remarks [53] - [54].
In addition to the objective seriousness of the offending, the sentencing judge said that an aggravating factor was that the appellant's driving was so erratic and unexpected that the victims had no opportunity to take evasive action.[5]
[5] Sentencing Remarks [55].
His Honour had before him a victim impact statement written by each of Mr McPhee's father, grandmother and aunt. The statements outlined the pain and ongoing anguish caused by the appellant's offending. Mr McPhee lived for nine days until his life support was removed. His siblings lost their brother.
The sentencing judge described the factors that he considered to be mitigating, including the appellant's lack of a criminal record, his remorse and his early pleas of guilty.
At the time of sentence, the appellant had no criminal record. He was therefore considered by his Honour to come before the court as a person of previous good character.[6]
[6] Sentencing Remarks [51] - [52].
His Honour found that the appellant was remorseful. He had before him a letter from the appellant dated 10 June 2019 in which the appellant expressed remorse and his empathy for the families of the victims. The pre-sentence report and the psychological report confirmed that the appellant's remorse was genuine and that he understood the impact of his offending.[7]
[7] Sentencing Remarks [59].
The sentencing judge afforded the appellant a 20% discount for his pleas of guilty, pursuant to s 9AA of the Sentencing Act 1995 (WA).[8]
[8] Sentencing Remarks [61].
His Honour identified general deterrence as a highly relevant sentencing consideration.[9] In particular, the prevalence of alcohol abuse in the community and the offence of driving whilst intoxicated highlighted the importance of general deterrence. His Honour noted that while there was no tariff for manslaughter cases, manslaughter by the use of a vehicle was no less serious than manslaughter arising out of other circumstances, and a person who chose to drive while intoxicated and committed the offence of manslaughter should expect a significant custodial penalty.[10]
[9] Sentencing Remarks [64].
[10] Sentencing Remarks [63] - [65].
The ground of appeal: the appellant's submissions
The appellant outlined in his written submissions the facts and circumstances of a number of cases, including Francis v The State of Western Australia,[11] The State of Western Australia v Tittums,[12] Billing v The State of Western Australia,[13] Brown v The State of Western Australia,[14] The State of Western Australia v Garlett,[15] Taylor v The State of Western Australia,[16] Farmer v The State of Western Australia[17] and Penny v The State of Western Australia.[18]
[11] Francis v The State of Western Australia [2019] WASCA 43.
[12] The State of Western Australia v Tittums [2018] WASCA 23; (2018) 83 MVR 476.
[13] Billing v The State of Western Australia [2017] WASCA 80; (2017) 80 MVR 127.
[14] Brown v The State of Western Australia [2011] WASCA 111; (2011) 207 A Crim R 533.
[15] The State of Western Australia vGarlett [2007] WASCA 274.
[16] Taylor v The State of Western Australia [2007] WASCA 218; (2007) 177 A Crim R 81.
[17] Farmer v The State of Western Australia [2007] WASCA 219.
[18] Penny v The State of Western Australia [2006] WASCA 173; (2006) 33 WAR 48.
The appellant submitted that, having regard to the sentencing standards apparent from those cases, the circumstances of the offending and the matters of mitigation found by the sentencing judge, the total effective sentence was disproportionate to the appellant's overall criminality and was longer than required to satisfy the sentencing considerations of appropriate punishment and personal and general deterrence.
The ground of appeal: its merits
The appellant's sole ground of appeal asserts, in essence, that the sentencing judge failed properly to apply the first limb of the totality principle when sentencing the appellant. The appellant does not challenge any of the individual sentences. Nor does he allege that the sentencing judge made any express error in his fact finding or otherwise.
The first limb of the totality principle requires that the total effective sentence imposed on an offender who has committed multiple offences must bear a proper relationship to the overall criminality involved in all of the offences (including those, if any, in respect of which the offender is still serving a term of imprisonment), viewed in their entirety, and after having regard to all relevant circumstances, including those referable to the offender personally (and including, for example, the desirability of accommodating any wish to rehabilitate), and the total effective sentences imposed in comparable cases.
The practical effect of the totality principle is, ordinarily, to arrive at an aggregate sentence which is less than that which would have been arrived at merely by adding up all of the terms appropriate for the individual offences.[19] Also, the severity or leniency of an individual sentence (which is nevertheless within the 'available range' of sentences) is relevant in evaluating whether the total effective sentence infringes the first limb of the totality principle.[20]
[19] Roffey v The State of Western Australia [2007] WASCA 246 [26] (McLure JA; Steytler P & Miller JA agreeing).
[20] Giglia v The State of Western Australia [2010] WASCA 9 [40] (Owen JA; McLure P & Pullin JA agreeing); Gaskell v The State of Western Australia [2018] WASCA 8 [54] ‑ [59] (Buss P), [151] (Mazza & Beech JJA).
A sentencing range for comparable offending is merely one of the factors to be taken into account in deciding whether an individual sentence is manifestly excessive. A range of sentences customarily imposed is a yardstick for the purpose of ensuring broad consistency in the sentencing of offenders in broadly comparable cases. Consistency in sentencing means that like cases must be treated alike and different cases must be treated differently.[21] However, the scope for material differences in each case in relation to relevant sentencing factors, and the weight to be given to them, must be borne in mind. The limits of the guidance afforded by comparable cases are therefore flexible rather than rigid.
[21] R v Pham [2015] HCA 39; (2015) 256 CLR 550 [28] (French CJ, Keane & Nettle JJ).
When this court dismisses an appeal against sentence, and when it allows an appeal against sentence and resentences the offender, this court's decision on the sentencing outcome does not, of itself, fix the upper or lower limit of a sentencing range.
If, in a particular case where manifest excess is alleged, there are no directly comparable cases, this court is not precluded from deciding that an individual sentence is manifestly excessive. It merely has the consequence that this court has no directly comparable cases to provide a yardstick against which to assess the sentence. However, previous sentencing ranges are only one pointer to the adequacy of a sentence.[22]
[22] Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600 [38] ‑ [39] (French CJ, Hayne, Crennan, Kiefel, Gageler & Keane JJ); The State of Western Australia v Doyle [2017] WASCA 207 [36] (Buss P, Mazza JA & Hall J).
Similarly, if, in a particular case where an infringement of the first limb of the totality principle is alleged, there are no directly comparable cases, this court is not precluded from deciding that a total effective sentence does infringe the first limb of the totality principle. It merely has the consequence that this court has no directly comparable cases to provide a yardstick against which to judge the adequacy of the total effective sentence imposed at first instance.[23]
[23] Moore v The State of Western Australia [2019] WASCA 35 [51] (Buss P & Mazza JA).
Except where a mandatory sentence is prescribed, a sentencing judge exercises a discretionary judgment which is subject to applicable statutory provisions and judge-made law.[24]
[24] Barbaro v The Queen [2014] HCA 2; (2014) 253 CLR 58 [25] (French CJ, Hayne, Kiefel & Bell JJ).
In the present case, the sentencing judge was obliged to sentence the appellant in accordance with the sentencing principles set out in pt 2 div 1 of the Sentencing Act. Part 2 div 1 comprises s 6 to s 9AA.
By s 6(1) of the Sentencing Act, a sentence imposed on an offender must be commensurate with the seriousness of the offence. This is a fundamental sentencing principle. Section 6(2) provides that the seriousness of an offence must be determined by taking into account the statutory penalty for the offence (par (a)); the circumstances of the commission of the offence, including the vulnerability of any victim of the offence (par (b)); any aggravating factors (par (c)); and any mitigating factors (par (d)). By s 7(1), aggravating factors are those factors which, in the court's opinion, increase the culpability of the offender. Section 7(2) provides that an offence is not aggravated by the fact that the offender pleaded not guilty to it (par (a)); the offender has a criminal record (par (b)); or a previous sentence has not achieved the purpose for which it was imposed (par (c)). By s 8(1), mitigating factors are those factors which, in the court's opinion, decrease the culpability of the offender or decrease the extent to which the offender should be punished.
The maximum penalty for the offence of unlawful killing, contrary to s 280 of the Code, is life imprisonment. The maximum penalty was increased from 20 years to life imprisonment on 17 March 2012. Sentencing appeals decided by this court, before and after the maximum penalty was increased in 2012, arising from the use of a motor vehicle were reviewed in Francis v The State of Western Australia.[25]
[25] Francis v The State of Western Australia [2019] WASCA 43.
The maximum penalty for the offence of dangerous driving occasioning grievous bodily harm while under the influence of alcohol, contrary to s 59(1)(a) of the RT Act, is 14 years' imprisonment. Sentencing appeals decided by this court in relation to offending against s 59(1)(a) of the RT Act were reviewed in The State of Western Australia v Berry.[26]
[26] The State of Western Australia v Berry [2016] WASCA 113; (2016) 76 MVR 285.
The maximum penalty for the offence of failing to stop immediately after the occurrence of an incident and render assistance, contrary to s 54(1) and s 54(2) of the RT Act, if the incident occasioned death, is 20 years' imprisonment. The maximum penalty for the offence of failing to stop and render assistance, contrary to s 54(1) and s 54(2) of the RT Act, if the incident occasioned grievous bodily harm, is 14 years' imprisonment. The maximum penalty for the offence of failing to report an incident forthwith to the police, contrary to s 56(2) of the RT Act, where the incident occasioned death or grievous bodily harm is 10 years' imprisonment. The standards of sentencing for offences of the kind we have mentioned are apparent from The State of Western Australia v Tittums.
In the present case, the appellant's overall offending was very serious. Its seriousness is apparent from the facts and circumstances set out at [34] - [35] above. The victims of the appellant's offending were highly vulnerable.
There were a number of mitigating factors. The appellant did not have a prior criminal record. He entered early pleas of guilty. The appellant took responsibility for his offending and expressed empathy to the families of the victims. His expressions of remorse were genuine. The appellant was undoubtedly a loving and caring husband and father. His family were supportive of him. The appellant was, in general, a worthwhile member of the community. If the appellant continues to address his use of alcohol then he is unlikely to reoffend.
Appropriate punishment for the appellant's offending was an important sentencing consideration. General deterrence was also significant. Personal deterrence was less important but also of relevance.
It was appropriate for the sentencing judge to order some accumulation of the sentence for the count of unlawful killing and the sentence his Honour would otherwise have imposed for the count of dangerous driving occasioning grievous bodily harm while under the influence of alcohol (that is, 3 years 10 months reduced for totality purposes to 1 year) in order properly to mark the egregiousness of the appellant's overall offending.
We are not persuaded that the total effective sentence of 9 years' imprisonment infringed the first limb of the totality principle. The sentence was commensurate with the overall seriousness of the offending as a whole after taking into account the maximum penalties, the facts and circumstances of the overall offending, the vulnerability of the victims, the traumatic impact of the offending on the victims' families, the sentencing dispositions in previous cases with at least some features comparable to the present case, the appellant's personal circumstances and antecedents, and all aggravating and mitigating factors. The total effective sentence was reasonably open to the sentencing judge on a proper exercise of his discretion. The total effective sentence was not unreasonable or plainly unjust. Error cannot be implied from the sentencing outcome.
Conclusion
The sole ground of appeal does not have a reasonable prospect of success. We would refuse leave to appeal. The appeal must therefore be dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
FN
Research Associate to the Honourable Justice Buss15 NOVEMBER 2019
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