Petersen v The State of Western Australia
[2016] WASCA 66
•21 APRIL 2016
PETERSEN -v- THE STATE OF WESTERN AUSTRALIA [2016] WASCA 66
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2016] WASCA 66 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:16/2015 | 4 DECEMBER 2015 | |
| Coram: | McLURE P MAZZA JA CORBOY J | 21/04/16 | |
| 53 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| A | |||
| PDF Version |
| Parties: | DESMOND JAMES PETERSEN THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law Appeals against conviction and sentence Failing to assist victim of road traffic incident and failing to report incident Interpretation of s 54 Road Traffic Act 1974 (WA) Interpretation of s 30(4) Criminal Appeals Act 2004 (WA) Whether evidence of prior drink driving offences admissible Whether defence of emergency available Whether direction on section not charged caused a miscarriage Whether sentence manifestly excessive Whether sentence infringed totality principle |
Legislation: | Criminal Appeals Act 2004 (WA) s 30(4) Criminal Code (WA), s 25 Evidence Act 1906 (WA), s 31A Road Traffic Act 1974 (WA), s 54(1), s 54(2), s 54(6), s 56 |
Case References: | Abeyakoon v Brown [2011] WASCA 63; (2011) 211 A Crim R 338 Abfahr v The State of Western Australia [2013] WASCA 87 AK v The State of Western Australia [2008] HCA 8; (2008) 232 CLR 438 Barbaro v The Queen (2014) 253 CLR 58 Braysich v The Queen [2011] HCA 14; (2011) 243 CLR 434 Brown v The State of Western Australia [2011] WASCA 111; (2011) 207 A Crim R 533 Cesan v The Queen [2008] HCA 52; (2008) 236 CLR 358 Chamberlain v The Queen (No 2) [1984] HCA 7; (1984) 153 CLR 521 Dair v The State of Western Australia [2008] WASCA 72; (2008) 36 WAR 413 Dinsdale v The Queen (2000) 202 CLR 321 Edmonds v The State of Western Australia [2013] WASCA 255 Fazari v The State of Western Australia [2012] WASCA 176 Filippou v The Queen [2015] HCA 29; (2015) 323 ALR 33; (2015) 89 ALJR 776 Filippou v The Queen [2015] HCA 29; (2015) 89 ALJR 776 Floyd v The State of Western [2013] WASCA 33 Harwood v The State of Western Australia [2016] WASCA 8 Hughes v The State of Western Australia [2015] WASCA 164 Knight v The Queen [1992] HCA 56; (1992) 175 CLR 495 M v The Queen [1994] HCA 63; (1994) 181 CLR 487 MacKenzie v The Queen [1996] HCA 35; (1996) 190 CLR 348 McLaughlin v The State of Western Australia [2012] WASCA 204 Mehajer v The Queen [2014] NSWCCA 167 MJS v The State of Western Australia [2011] WASCA 112 Patel v The Queen [2012] HCA 29; (2012) 247 CLR 531 Pollock v The Queen [2010] HCA 35; (2010) 242 CLR 233 Postiglione v The Queen (1997) 189 CLR 295 Roffey v The State of Western Australia [2007] WASCA 246 Samuels v State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 Staley v Lopes [2005] WASCA 75 Stokke v The State of Western Australia [2015] WASCA 131 Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300 Whitehorn v The Queen [1983] HCA 42; (1983) 152 CLR 657 Wilde v The Queen [1988] HCA 6; (1988) 164 CLR 365 Wilson v The State of Western Australia [2010] WASCA 82 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : PETERSEN -v- THE STATE OF WESTERN AUSTRALIA [2016] WASCA 66 CORAM : McLURE P
- MAZZA JA
CORBOY J
- CACR 17 of 2015
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : BIRMINGHAM DCJ
File No : IND GER 24 of 2014
Catchwords:
Criminal law - Appeals against conviction and sentence - Failing to assist victim of road traffic incident and failing to report incident - Interpretation of s 54 Road Traffic Act 1974 (WA) - Interpretation of s 30(4) Criminal Appeals Act 2004 (WA) - Whether evidence of prior drink driving offences admissible - Whether defence of emergency available - Whether direction on section not charged caused a miscarriage - Whether sentence manifestly excessive - Whether sentence infringed totality principle
Legislation:
Criminal Appeals Act 2004 (WA) s 30(4)
Criminal Code (WA), s 25
Evidence Act 1906 (WA), s 31A
Road Traffic Act 1974 (WA), s 54(1), s 54(2), s 54(6), s 56
Result:
Appeal dismissed
Category: A
Representation:
Counsel:
Appellant : Mr S B Watters
Respondent : Mr R G Wilson
Solicitors:
Appellant : Ian MacFarlane
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Abeyakoon v Brown [2011] WASCA 63; (2011) 211 A Crim R 338
Abfahr v The State of Western Australia [2013] WASCA 87
AK v The State of Western Australia [2008] HCA 8; (2008) 232 CLR 438
Barbaro v The Queen (2014) 253 CLR 58
Braysich v The Queen [2011] HCA 14; (2011) 243 CLR 434
Brown v The State of Western Australia [2011] WASCA 111; (2011) 207 A Crim R 533
Cesan v The Queen [2008] HCA 52; (2008) 236 CLR 358
Chamberlain v The Queen (No 2) [1984] HCA 7; (1984) 153 CLR 521
Dair v The State of Western Australia [2008] WASCA 72; (2008) 36 WAR 413
Dinsdale v The Queen (2000) 202 CLR 321
Edmonds v The State of Western Australia [2013] WASCA 255
Fazari v The State of Western Australia [2012] WASCA 176
Filippou v The Queen [2015] HCA 29; (2015) 89 ALJR 776
Floyd v The State of Western [2013] WASCA 33
Harwood v The State of Western Australia [2016] WASCA 8
Hughes v The State of Western Australia [2015] WASCA 164
Knight v The Queen [1992] HCA 56; (1992) 175 CLR 495
M v The Queen [1994] HCA 63; (1994) 181 CLR 487
MacKenzie v The Queen [1996] HCA 35; (1996) 190 CLR 348
McLaughlin v The State of Western Australia [2012] WASCA 204
Mehajer v The Queen [2014] NSWCCA 167
MJS v The State of Western Australia [2011] WASCA 112
Patel v The Queen [2012] HCA 29; (2012) 247 CLR 531
Pollock v The Queen [2010] HCA 35; (2010) 242 CLR 233
Postiglione v The Queen (1997) 189 CLR 295
Roffey v The State of Western Australia [2007] WASCA 246
Samuels v State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Staley v Lopes [2005] WASCA 75
Stokke v The State of Western Australia [2015] WASCA 131
Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300
Whitehorn v The Queen [1983] HCA 42; (1983) 152 CLR 657
Wilde v The Queen [1988] HCA 6; (1988) 164 CLR 365
Wilson v The State of Western Australia [2010] WASCA 82
McLURE P: 5
HYPERLINK \l "_Toc448914558" Conviction appeal - legal issues PAGEREF _Toc448914558 \h 8
HYPERLINK \l "_Toc448914559" Scope and application of the proviso PAGEREF _Toc448914559 \h 8
HYPERLINK \l "_Toc448914560" Construction of RTA, s 54(1), s 54(2) PAGEREF _Toc448914560 \h 12
HYPERLINK \l "_Toc448914561" The trial judge's direction on counts 1 and 2 PAGEREF _Toc448914561 \h 13
HYPERLINK \l "_Toc448914562" Failure to leave emergency PAGEREF _Toc448914562 \h 14
HYPERLINK \l "_Toc448914563" Section 31A - admissibility and direction PAGEREF _Toc448914563 \h 16
HYPERLINK \l "_Toc448914564" Conclusion on conviction appeal PAGEREF _Toc448914564 \h 17
HYPERLINK \l "_Toc448914565" Appeal against sentence PAGEREF _Toc448914565 \h 17
HYPERLINK \l "_Toc448914566" Grounds 1 and 2 PAGEREF _Toc448914566 \h 20
HYPERLINK \l "_Toc448914567" Manifest excess - counts 1, 2 and 3 PAGEREF _Toc448914567 \h 21
HYPERLINK \l "_Toc448914568" Totality PAGEREF _Toc448914568 \h 22
HYPERLINK \l "_Toc448914569" Conclusion on sentence appeal PAGEREF _Toc448914569 \h 22
MAZZA JA: 22
CORBOY J: 23
HYPERLINK \l "_Toc448914570" Summary PAGEREF _Toc448914570 \h 23
HYPERLINK \l "_Toc448914571" The State's case PAGEREF _Toc448914571 \h 25
HYPERLINK \l "_Toc448914572" The appellant's evidence PAGEREF _Toc448914572 \h 28
HYPERLINK \l "_Toc448914573" The s 31A application PAGEREF _Toc448914573 \h 30
HYPERLINK \l "_Toc448914574" The trial judge's ruling on emergency PAGEREF _Toc448914574 \h 31
HYPERLINK \l "_Toc448914575" Section 54 and s 56 RTA PAGEREF _Toc448914575 \h 32
HYPERLINK \l "_Toc448914576" Emergency - proposed ground 2 of the appeal from conviction PAGEREF _Toc448914576 \h 35
HYPERLINK \l "_Toc448914577" The s 31A Evidence - ground 1 of the appeal from conviction PAGEREF _Toc448914577 \h 37
- HYPERLINK \l "_Toc448914578" The trial judge's ruling PAGEREF _Toc448914578 \h 37
HYPERLINK \l "_Toc448914579" The trial judge's direction PAGEREF _Toc448914579 \h 38
- HYPERLINK \l "_Toc448914581" The prosecutor's opening PAGEREF _Toc448914581 \h 40
HYPERLINK \l "_Toc448914583" The trial judge's direction on counts 1 and 2 PAGEREF _Toc448914583 \h 41
HYPERLINK \l "_Toc448914584" The failure to assist Mr Bynder PAGEREF _Toc448914584 \h 43
HYPERLINK \l "_Toc448914585" The conviction on counts 1 and 2 PAGEREF _Toc448914585 \h 44
HYPERLINK \l "_Toc448914586" The appeal against sentence PAGEREF _Toc448914586 \h 46
- HYPERLINK \l "_Toc448914587" The sentencing remarks PAGEREF _Toc448914587 \h 46
HYPERLINK \l "_Toc448914588" The principles PAGEREF _Toc448914588 \h 48
HYPERLINK \l "_Toc448914589" Comparable sentences PAGEREF _Toc448914589 \h 49
HYPERLINK \l "_Toc448914590" Conclusion PAGEREF _Toc448914590 \h 51
1 McLURE P: This is an appeal against conviction and sentence. At around 6.50 pm on 5 October 2013, a Holden Rodeo vehicle being driven by the appellant along Chapman Valley Road towards the town of Geraldton struck two pedestrians, Horace Bynder and Christine Ryan. Both victims were later pronounced dead at the scene of the incident.
2 The appellant was convicted after trial of two counts of contravening s 54(2) and s 54(3)(a) of the Road Traffic Act 1974 (WA) (RTA) and one count of contravening s 56(2) of the RTA. Count 1 was relevantly in the following terms:
On 5 October 2013 … a motor vehicle namely a Holden Rodeo utility … driven by [the appellant] on a road, was involved in an incident occasioning bodily harm to [Mr Bynder] and that [the appellant] failed to ensure that [Mr Bynder] received all the necessary assistance, including medical aid, that was necessary and practicable in the circumstances
And that the incident occasioned death to [Mr Bynder].
3 Count 2 related to Ms Ryan and was in the same material terms as count 1. Count 3 was in terms that the appellant failed to report the incident forthwith to the officer in charge of a police station, contrary to s 56(2) of the RTA.
4 There was little dispute at trial as to the core facts. After the incident, the appellant stopped and parked his vehicle on the roadside verge approximately 60 m from where Mr Bynder was lying. Chapman Valley Road is a two-lane road. Mr Bynder was lying in the lane in which the appellant was travelling at the time of the incident. Ms Ryan was lying around 10 m behind Mr Bynder across the centre of the road and was therefore at risk from vehicles travelling in both directions.
5 Catherine Gaunt was driving towards town when she arrived at the incident scene. She drove around and past the victims lying on the road and parked behind the appellant's vehicle. The appellant was standing by his vehicle at the time. According to police records, Ms Gaunt telephoned police at 6.52 pm. While she was on the telephone, another man arrived at the incident scene.
6 Another witness, Stephanie Muller, was driving towards town and the incident scene when a person, accepted to be the appellant, flagged her down to stop, which she did. She asked the appellant whether he had called an ambulance and he replied no. Ms Muller then telephoned 000 and requested an ambulance. The start of that telephone call was logged at 6.51 pm. The call lasted approximately 13 minutes. Other people arrived at the incident scene while Ms Muller was on the telephone. At the beginning of the call, Ms Muller checked and felt that Ms Ryan had a pulse. She was aware that someone else (not the appellant) said that Mr Bynder did not have a pulse. The ambulance despatcher asked Ms Muller that CPR be started on both patients. That was done. At the end of the call, the ambulance despatcher advised that CPR should continue until ambulances arrived.
7 The first police officers at the incident scene, Sergeant Walkerden and Constable Arthurs, arrived at 7.01 pm. Sergeant Walkerden described the scene as chaos, with cars parked on both sides of the road, people trying to stop traffic, other people conducting first aid and others just looking on. Police do not make a call as to whether or not a person is deceased. That call is made by a qualified paramedic from St John Ambulance or a doctor and, until the call is made, police continue to ensure accident victims receive first aid. The police also took steps to stop cars from driving through the incident scene.
8 Ambulances arrived at the incident scene at around 7.22 pm. Ambulance officers at the scene declared that both victims were deceased.
9 The appellant left the incident scene prior to police arriving at 7.01 pm. Ms Gaunt, who also left the scene before police arrived, saw the appellant drive off. Mrs Noble, who lived adjacent to the accident site, arrived at the scene very shortly after hearing the incident. From her driveway, Mrs Noble saw the appellant drive away from the scene.
10 The appellant returned to the accident scene at 9.05 pm, some 2 ¼ hours after the incident, and told police he was the driver of the vehicle that struck the victims. He had consumed alcohol both before and after the accident. It was not possible to accurately assess the quantity of alcohol in the appellant's blood at the time of the incident because of the alcohol he consumed after the incident.
11 The appellant gave evidence in his defence at trial. The appellant had a functioning mobile telephone with him at the time of the incident. After parking his vehicle, the appellant got out and walked back to where the victims were lying on the road. He waved down the car being driven by Ms Muller. Ms Muller asked him whether he had called an ambulance and he said no. While Ms Muller was on the telephone, she checked the victims to see whether they had a pulse. The appellant heard that Ms Ryan had a pulse but Mr Bynder did not. However, the appellant did not know whether the victims were alive or dead or whether they could be saved. After Ms Muller had checked for pulses, the appellant returned to his car and drove from the incident scene. He did not know whether anyone else, apart from Ms Muller and Ms Gaunt, had arrived at the incident scene before he left. However, he knew that no family or friends of the victims were present and that police had not arrived by the time he left. The appellant did not tell anyone that he was leaving the incident scene. He did not assess the injuries sustained by the victims, did not call police and did not call an ambulance. He was, however, aware that others had contacted emergency services. Apart from causing Ms Muller to stop, the appellant did nothing himself to provide or ensure the victims received assistance.
12 The appellant gave evidence that, on becoming aware that the victims were indigenous:
I looked around and then freaked out, got - didn't know what to do, scared. Figured soon enough someone was going to come along that knows them, family or friends, and know that I did it. I just thought I'm going to be severely beaten up or worse. So I went back to my car (ts 325).
13 After the commencement of the trial, but before the prosecutor had opened the State's case, the appellant's counsel informed the court that a positive defence would be raised in regard to the appellant's state of mind at the time he left the incident scene. It appears that was understood by the prosecutor and the trial judge to be an indication that the appellant intended to rely on the defence of emergency in s 25 of the Criminal Code (WA) (the Code). As a result, the State renewed an application pursuant to s 31A of the Evidence Act 1906 (WA) to admit evidence relating to drink-driving offences committed by the appellant. There was evidence that on 17 May 2012 the appellant had been convicted of driving with a blood alcohol level in excess of 0.08 g per 100 ml of blood. In addition, the appellant had been charged with driving on 12 September 2013 with a blood alcohol content in excess of 0.05g per 100 ml of blood. Just prior to the date of the incident, the appellant had received a summons requiring him to appear in the Geraldton court on 10 October 2013 in relation to that charge. The appellant was subsequently convicted of the offence on his endorsed plea of guilty.
14 The trial judge allowed the State's application on the basis that the evidence was relevant to why the appellant left the incident scene when he did (ts 224 - 225). On completion of the evidence, the trial judge ruled that the defence of emergency should not be left to the jury (ts 390 - 391).
Conviction appeal - legal issues
15 In addition to two grounds of appeal relied on by the appellant, the court raised a number of matters on which it sought submissions, oral and in writing, from the parties. The issues in the appeal are as follows:
(1) did the trial judge misdirect the jury as to the nature and elements of the offence the subject of counts 1 and 2;
(2) can there be an offence against s 54(2) of the RTA if the victim died immediately upon impact with the appellant's vehicle;
(3) did the trial judge err in refusing to leave to the jury the defence of emergency (the appellant's ground 2);
(4) was the evidence relating to the appellant's drink-driving offences admissible pursuant to s 31A of the Evidence Act (the appellant's ground 1);
(5) did the trial judge misdirect the jury on the use that could be made of the evidence relating to the drink-driving offences;
(6) if the trial judge erred on one or more of the above grounds, has the prosecution established that no substantial miscarriage of justice has occurred.
Scope and application of the proviso
16 Section 30(3) of the Criminal Appeals Act 2004 (WA) (CAA) provides that the Court of Appeal must allow an appeal against a conviction if in its opinion:
(a) the verdict of guilty on which the conviction is based should be set aside because, having regard to the evidence, it is unreasonable or cannot be supported; or
(b) the conviction should be set aside because of a wrong decision on a question of law by the judge; or
(c) there was a miscarriage of justice.
17 Section 30(4) provides:
Despite subsection (3), even if a ground of appeal might be decided in favour of the offender, the Court of Appeal may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred.
18 My understanding of the scope and operation of these provisions has been tested by the recent decision of the High Court in Filippou v The Queen (2015) 89 ALJR 776 which appears to beat a retreat from the principles stated in Weiss v The Queen (2005) 224 CLR 300. Weiss emphasised the need to look at the statutory language, in its historical context, rather than secondary sources or materials [31].
19 Filippou concerned s 6(1) of the Criminal Appeal Act 1912 (NSW) (the NSW Act) which is in materially the same terms as s 30(3) of the CAA. Three aspects of the majority reasons in Filippou are not, in my assessment, on all fours with previous High Court authority. First, in relation to the proviso, the majority in Filippou stated:
By 'substantial miscarriage of justice' what is meant is that the possibility cannot be excluded beyond reasonable doubt that the appellant has been denied a chance of acquittal which was fairly open to him or her or that there was some other departure from a trial according to law that warrants that description [15].
20 In support of the statement in that passage relating to the loss of a chance of acquittal fairly open, the majority cite Pollock v The Queen (2010) 242 CLR 233 [70]. This appears to be the pre-Weiss approach to the proviso. The joint judgment in Weiss states:
Many statements are to be found in the decided cases that describe the task presented by the proviso as being to decide whether conviction was 'inevitable'. Other cases ask whether the accused was deprived of a 'chance which was fairly open … of being acquitted' or a 'real chance' of acquittal.
These expressions attempt to describe the operation of the statutory language in other words. They must not be taken as substitutes for that language. They are expressions which may mask the nature of the appellate court's task in considering the application of the proviso ([32] - [33]).
21 The High Court also said that the expressions quoted in this extract are liable to distract attention from the statutory task of an appellate court; that task is to be undertaken in the same way an appellate court decides whether the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence (Weiss [40], [41]).
22 The High Court in Weiss went on to hold that the proviso cannot apply unless the appellate court is positively persuaded that the evidence properly admitted (or which should have been admitted) at trial proved, beyond reasonable doubt, the accused's guilt of the offence on which the jury returned its verdict of guilty [44]. This is referred to as the 'outcome' aspect of the proviso and requires the appellate court to make its own independent assessment of the evidence. An appellate court cannot be positively persuaded of the accused's guilt if it is deprived of the capacity justly to assess the strength of the case against him or her.
23 However, an appellate court's persuasion as to guilt is a necessary, but not always sufficient, condition of the exercise of the proviso. There are situations where, even though an appellate court is satisfied beyond reasonable doubt of the appellant's guilt of the offence on which the jury returned its verdict, the proviso cannot be invoked. Examples in this category include where there has been a significant denial of procedural fairness at trial, or a serious breach of the presuppositions of a trial, or a failure which departs from the essential requirements of a fair trial. This 'process' aspect is in the territory canvassed by the High Court in Wilde v The Queen [1988] HCA 6; (1988) 164 CLR 365, 373. See also, Hughes v The State of Western Australia [2015] WASCA 164 [60] - [68].
24 The second aspect of the majority reasons in Filippou concerns the miscarriage of justice ground (referred to in Filippou as the 'third limb' [9]). The majority said (at [14]) that this ground covers 'cases where, by reason of irregularity or otherwise, an accused has not received a trial according to law or has not received a fair trial' citing Weiss at [45] in support. However, in that paragraph the court in Weiss is referring to the process aspect in which the proviso does not apply even though the appellate court is persuaded that the evidence properly admitted at trial proved, beyond reasonable doubt, the appellant's guilt of the offence on which the jury returned its verdict of guilty. That is, the majority in Weiss were not addressing the miscarriage of justice ground of appeal but the process aspect of the proviso. Moreover, the miscarriage of justice ground is not confined to situations in which there has been a departure from a trial according to law or an unfair trial. For example, cases of fresh and new evidence fall within this ground. The first and second limbs are particular examples of the occurrence of a miscarriage of justice: Whitehorn v The Queen (1983) 152 CLR 657, 685. The third limb is the 'dragnet' or 'sweeper' ground of appeal.
25 The third aspect of the majority judgment in Filippou relates to the first limb of s 6(1) of the NSW Act, equivalent to s 30(3)(a) of the CAA. The majority state (at [12]) that a finding of guilt is not to be disturbed under the first limb unless 'there is no or insufficient evidence to support the finding, or the finding is otherwise unreasonable, or the evidence was all the one way, or the judge has so misdirected himself or herself on a matter of law as to result in a miscarriage of justice'. The footnoted cases on which the majority rely for this proposition are Whitehorn (at (686)); Chamberlain v The Queen (No 2) (1984) 153 CLR 521, 532; Knight v The Queen [1992] HCA 56;(1992) 175 CLR 495, 502 - 503; M v The Queen (1994) 181 CLR 487, 493. Those cases do not support the entirety of the proposition. As to the reference to a misdirection on a matter of law, it is difficult to see how, as a matter of construction of the statutory text, such an error will be captured by the first limb, rather than the second or third limb of s 6(1) of the NSW Act or s 30(3) of the CAA.
26 The focus of the first limb is on the relationship between the evidence adduced at trial and the verdict of guilty. It applies in the absence of any express error, irregularity or other departure from a trial according to law: Chamberlain v The Queen (No 2) (531). Its closest analogy is to the implied errors in sentencing that enliven an appellate court's jurisdiction to intervene. In particular, the first limb applies if on the evidence at trial it was not open, as a matter of fact, to be satisfied to the criminal standard of an accused's guilt. The court must ask itself the question whether it thinks that upon the whole of the evidence it was open to the jury (or other trier of fact) to be satisfied beyond reasonable doubt that the accused was guilty: M v The Queen (492 - 494). As the majority made plain in M v The Queen (at 493), the scope of the first limb is more confined than the broader notion of 'unsafe and unsatisfactory'. The first limb also applies to factually inconsistent verdicts by the same jury. Verdicts are inconsistent if they cannot stand together, meaning that no reasonable jury who had applied their minds properly to the evidence in the case could have arrived at the conclusion: MacKenzie v The Queen (1996) 190 CLR 348, 366. If the first limb is upheld, it necessarily follows that there has been a substantial miscarriage of justice: Weiss [44]. That is not so in relation to the second and third limbs in CAA, s 30(3)(b) and (c).
27 There being no obvious intention in Filippou to depart from existing authority, including Weiss, I propose to apply my understanding of the law set out above.
28 I also note the majority statement in Filippou that the second limb (a wrong decision on a question of law by the trial judge) applies to all misdirections of substantive and adjectival law [13]. I infer the majority intended that to be so even in the absence of a decision by the trial judge on a contested matter of law. If so, that is a departure from this court's approach to the second limb. However, nothing turns on the difference in approach.
Construction of RTA, s 54(1), s 54(2)
29 Section 54(1), (2), (3) and (6) of the RTA relevantly provide:
(1) If a vehicle driven by a person (the driver) is involved in an incident occasioning bodily harm to another person, the driver must stop immediately after the occurrence of the incident and for as long as is necessary to comply with subsections (2) and (6).
(2) If a vehicle driven by a person (the driver) is involved in an incident occasioning bodily harm to another person (a victim), the driver must ensure that each victim receives all the assistance, including medical aid, that is necessary and practicable in the circumstances.
(3) A person who contravenes subsection (1) or (2) commits a crime.
Penalty: imprisonment for -
(a) 20 years, if the incident occasioned death.
(6) If a vehicle driven by a person (the driver) is involved in an incident occasioning bodily harm to another person (a victim), the driver must, if required to do so by a victim, a representative of a victim, or a police officer, give the driver’s name and address and, if known to the driver, the name and address of a responsible person for the vehicle.
30 Starting with s 54(1), the term 'stop' in its context means stop and remain at the incident site. The length of time the driver must remain at the incident site is determined by the length of time necessary to comply with the driver's obligations in both s 54(2) and s 54(6). The jury had to determine what was necessary for the appellant to do in order to comply with his obligations in s 54(2) in order to determine how long he should have remained at the incident site. Accordingly, the jury could not be satisfied of a contravention of s 54(1) without first determining, in effect, whether the driver had complied with his obligations in s 54(2). As a practical matter, in the circumstances of this case there cannot be a contravention of s 54(1) without a breach of s 54(2).
31 The assistance that is necessary and practicable in the circumstances is an objective question, and is informed by what a reasonable person in the position of the driver knew or ought to have known at the time. In circumstances where there is uncertainty as to whether a victim is dead or alive, the objectively necessary course is to proceed on the basis that the victim is seriously injured.
32 The central obligation in s 54(2) is that 'the driver must ensure that each victim receives all the assistance, including medical aid, that is necessary and practicable in the circumstances'. The driver can satisfy that obligation by personally providing the assistance that is necessary and practicable in the circumstances (relevant assistance) or by satisfying himself that other people at the incident site are providing, and will continue to provide, all relevant assistance. In circumstances where the driver is relying on the actions of others who are volunteering their services (that is, persons who are not acting in an official emergency services capacity), he must remain at the incident site to provide or ensure cover in the event of gaps or omissions in the assistance being provided.
33 In this case, the appellant did not request, and the prosecutor did not provide, particulars of the appellant's omissions that constituted the alleged contravention of s 54(2). No complaint is made of the lack of particulars. I infer that is because on the unchallenged facts, and subject to the availability of the emergency defence, the breach was obvious.
The trial judge's direction on counts 1 and 2
34 The trial judge's directions to the jury in his summing up on counts 1 and 2 are detailed in the reasons of Corboy J. It is unnecessary to repeat the passages here. The trial judge erroneously directed the jury that the offence the subject of counts 1 and 2 was a failure to stop contrary to s 54(1) of the RTA (ts 417).
35 However, the fact that there must be a contravention of s 54(2) to give rise to a contravention of s 54(1) is captured in the summing up. The trial judge said:
When the accused left the scene, as he did, had he then ensured that each victim was receiving or had received all the assistance, including medical aid, that was necessary and practicable in the circumstances. I remind you that the obligation is to ensure that each victim receives all necessary assistance, including medical aid, not might receive. That is say, one is to ensure that the person receives that assistance.
The State's case is that the accused left the moment the police were being called, before CPR had been commenced, and without making any attempt to ascertain the wellbeing of the pedestrians struck by the car that was [driven] by him (ts 419).
36 Later the trial judge directed the jury as follows:
The task for you in relation to counts 1 and 2 clearly focusses on the circumstances and the accused's conduct immediately following the incident, that is to say, did he stop and remain at the scene, when viewed objectively, for so long as is necessary to ensure that each victim receives all the assistance, including medical aid, that is necessary and practicable in the circumstances? You view that objectively and you bring to bear your experience as members of the community and as other road users as to what is a reasonable and proper response in those circumstances as you find them to be. It is an objective standard, not a subjective standard (ts 420). (emphasis added)
37 There was clearly a misdirection in identifying the wrong offence. The central question is whether the State has discharged the burden of establishing that no substantial miscarriage of justice has occurred.
38 The outcome on the evidence is clear. The appellant's evidence itself establishes beyond reasonable doubt that he was guilty of the s 54(2)/s 54(3)(a) offences. The only relevant issue is whether there is a process error of such a nature as to prevent the application of the proviso. In the unusual circumstances of this case, the answer is no because of the overlap of s 54(1) and s 54(2), the latter being a subset of the former, and the trial judge's directions which clearly reflected that overlap. Unlike the circumstances in Mehajer v The Queen [2014] NSWCCA 167, the jury in this case had to determine the appellant's guilt or innocence of the offences with which he was charged. The appellant pleaded not guilty to contravening s 54(2)/s 54(3)(a) (ts 31 - 32), was found guilty of those offences (ts 428 - 429) and the certificate of final outcome issued under the Criminal Procedure Rules 2005 (WA), r 49 is for contraventions of s 54(2)/s 54(3)(a).
39 There has been no substantial miscarriage of justice flowing from the trial judge's error. In the circumstances, it is unnecessary to determine the proper construction of s 30(5)(c) of the CAA.
Failure to leave emergency
40 The appellant contends the trial judge erred in refusing to leave to the jury the defence of emergency under s 25 of the Code.
41 A person is not criminally responsible for an act done, or an omission made, in an emergency under s 25(3). Section 25(3) provides:
A person does an act or makes an omission in an emergency if -
(a) the person believes -
(i) circumstances of sudden or extraordinary emergency exist; and
(ii) doing the act or making the omission is a necessary response to the emergency; and
(b) the act or omission is a reasonable response to the emergency in the circumstances as the person believes them to be; and
(c) and there are reasonable grounds for those beliefs.
42 The appellant carried the evidential burden of raising the defence of emergency. In that regard, the test is whether there is evidence which, taken at its highest in favour of the appellant, could lead a reasonable jury, properly instructed, to have a reasonable doubt that each of the elements of the defence had been negatived: Braysich v The Queen (2011) 243 CLR 434 [36]; Floyd v The State of Western [2013] WASCA 33 [21].
43 The defence of emergency, like that of duress, exists to meet cases where the circumstances overwhelmingly impel disobedience to the law. The corollary is that the law cannot leave people free to choose for themselves which laws they will obey, or to construct and apply their own set of values inconsistent with those within the law: Floyd [25].
44 The only evidence relating to the defence of emergency was that of the appellant explaining his subjective reasons for leaving the incident scene. The appellant left the scene before the arrival of any relatives or friends of the victims. The appellant did not know the victims or anything about their circumstances, relatives or friends. A reasonable expectation would be that the appellant would be protected by police when they arrived. On the evidence as a whole, it was not open to the jury to find, as a reasonable possibility, that when the appellant left the accident site:
(a) there were reasonable grounds to believe that circumstances of sudden or extraordinary emergency existed;
(b) even if there was evidence capable of constituting a relevant emergency, there were reasonable grounds for believing that leaving the scene was a necessary response to the emergency.
45 The appellant did not satisfy the evidentiary burden. Accordingly, the trial judge did not err.
Section 31A - admissibility and direction
46 I agree with Corboy J for the reasons he gives that the trial judge did not err in admitting the evidence relating to the appellant's drink-driving offences. However, because of the content of the trial judge's direction it is necessary to determine whether, absent an emergency defence, the appellant's evidence as to his motivation for leaving the incident scene and his explanation for his delay in reporting the incident to police was relevant and admissible.
47 The appellant's defence to the s 56(2) offence was that the delay in informing police was due to his state of distress and shock. He claimed to have reported the matter to police as soon as was practicable. That is not the statutory obligation. The relevant obligation, which is in s 56(1), is to report the incident 'forthwith'. Under s 56(5) it is a defence to a charge under s 56(2) for the accused to prove that -
(a) the accused could not comply with a requirement in the relevant provision because of an injury suffered by the accused in the incident; or
(b) a police officer attended at the scene of the incident and took the necessary particulars of the incident.
48 Neither defence was available on the facts in this case. There was no medical evidence that the appellant had suffered an 'injury', regardless of the outer scope of the meaning of that term for the purposes of s 56(5)(a). Distress and shock do not fall within the natural and ordinary meaning of the term. Indeed, distress and shock will invariably be the consequence of the circumstances that enliven the obligation in s 54(1).
49 In its statutory context, 'forthwith' means immediately, without delay, promptly. Of course, compliance with the requirement will depend on the particular factual circumstances in which the driver finds himself (such as, for example, if an incident occurs in an isolated location without mobile phone coverage). The appellant did not discharge the burden of proving an 'injury' for the purposes of s 56(5) or (assuming without deciding that they apply) the evidentiary burden of any defence under the Code.
50 However, it can be accepted that the appellant's motivation for leaving the incident scene and his state of distress and shock at that time was relevant and admissible evidence of the circumstances of the relevant offences. They are, in that sense, a fact in issue. Moreover, the evidence was also relevant to the extent of the appellant's criminality and thus to the sentencing exercise. Prima facie, it would be an odd result if the State was prevented from negativing the appellant's relevant and admissible evidence on these matters by reliance on the drink-driving evidence.
51 The trial judge directed the jury (as is the case) that the appellant's evidence of the reasons for his hasty retreat from the incident scene and his long delay in reporting the incident to police was not relevant to the proof of any element of the offences. However, the trial judge regarded the drink-driving evidence as relevant, directing the jury as follows:
The accused says that he didn't stay and render assistance because of the fact that he was distressed by the incident. The State says that his motive for leaving, to remain away for over 2 hours, was his fear of the consequences and the fact that he had been drinking, that he left the scene and drank the alcohol before returning after a considerable delay. It's in this context that you have regard to the prior driving history, and not otherwise. It's a fact that you consider as part of the overall circumstances of the evidence (ts 423).
52 The drink-driving evidence was relevant, not as propensity evidence, but for the sole purpose of rebutting the appellant's evidence as to why he failed to comply with his statutory obligations. The evidence was admissible at common law, which is not excluded by s 31A of the Evidence Act: MJS v The State of Western Australia [2011] WASCA 112 [3]. In any event, even if the evidence was inadmissible, it did not occasion a substantial miscarriage of justice. On the appellant's own evidence, he is guilty of all the offences with which he was charged.
Conclusion on conviction appeal
53 For these reasons, the conviction appeal must be dismissed.
Appeal against sentence
54 On 19 January 2015, Birmingham DCJ sentenced the appellant to 2 years 6 months imprisonment for each offence against s 54(2) of the RTA and 2 years imprisonment for the offence against s 56(2) of the RTA. The sentencing judge imposed a total effective sentence of 4 years 6 months imprisonment, with disqualification of the appellant's driver's licence for 4 years from his release from prison.
55 The appellant relies on five grounds of appeal, only one of which (ground 5) has been given leave. The grounds claim that:
(1) it was not reasonably open to find the criminality involved in the s 54(2) offences was 'most serious';
(2) it was not reasonably open to attribute to the appellant responsibility for prolonging the grieving process of the deceased's families because of his actions on the night;
(3) the sentences for counts 1 and 2 are manifestly excessive;
(4) the sentence for count 3 is manifestly excessive;
(5) the total effective sentence infringes the totality principle.
56 The certificate of final outcome is for a contravention of s 54(2) of the RTA, not s 54(1). Moreover, the sentencing judge (also the trial judge) understood that he was sentencing the appellant on counts 1 and 2 for contravening s 54(2).
57 The appellant was aged 27 at the time of the offences. He had not previously been sentenced to a term of imprisonment.
58 The findings made by the sentencing judge are as follows. The appellant knew on the date of the incident that he would shortly be losing his driver's licence as a result of his drink-driving on 12 September 2013. When the incident occurred, the appellant knew, or at least feared, that he was driving in excess of the legal limit in respect of alcohol and that might place him in difficult circumstances. The sentencing judge did not accept the appellant's evidence as to his motivation for leaving the incident scene. He found that the appellant left the incident scene out of fear for his own well-being in relation to the legal consequences of his conduct in driving a motor vehicle whilst affected by alcohol (ts 478). As a result of consuming more alcohol after the incident, police could not reliably assess the quantity of alcohol in the appellant's blood at the time of the incident. The sentencing judge was satisfied that the purpose of the appellant consuming alcohol after the incident was to prevent police from obtaining admissible evidence as to his blood alcohol level at the time of the incident (ts 482).
59 The sentencing judge also found that the appellant's failure to remain at the scene and to remove his vehicle frustrated the investigation. He continued:
I don't attribute to you the responsibility for causing their death, but I do attribute to you the responsibility for prolonging [the families'] grieving process by … your actions on the night (ts 480).
60 The sentencing judge explained his reasons for that conclusion by reference to the content of a victim impact statement provided by Mr Bynder's father detailing the adverse effect on him of the appellant's conduct after the incident. Similar sentiments were expressed by other relatives of the deceased.
61 The sentencing judge concluded that the appellant had a sense of entitlement with regard to the use of a motor vehicle after drinking alcohol and a propensity to minimise responsibility for his drink-driving offences. He accepted the assessment of a psychologist that the appellant's actions displayed a significant denial of responsibility, justification and minimalisation of his conduct (ts 482). The sentencing judge found that the appellant had minimal insight into the offences for which he was being sentenced and his problematic use for alcohol. As a result, significant weight was given to the need for personal deterrence (ts 483). General deterrence was also a weighty consideration. In addition, the appellant had little insight into the impact of his offending on the families of the deceased and there was no clear expression of remorse or regret (ts 484).
62 After imposing the sentences for counts 1 and 2 the sentencing judge continued:
In relation to count 3, failure to report the matter forthwith, in my view this is a most serious breach of your obligation and your failure to report the matter forthwith and your conduct immediately following the incident seriously impacted upon the capacity to properly investigate the offending or the incident that night, and the matters generally arising from that incident … (ts 485 - 486).
63 After referring to both limbs of the totality principle, the sentencing judge concluded that the criminality involved in the case was most serious and warranted a total effective term of 4 years and 6 months (ts 486). The appellant was made eligible for parole.
64 Before going to the grounds of appeal, it is convenient to examine the statutory framework. The maximum penalty for the s 54(2) offences committed by the appellant is 20 years imprisonment: s 54(3)(a). The maximum penalty for the 56(2) offence is 10 years imprisonment. These maximum penalties were included by the Road Traffic Amendment Act (No 2) 2007 (WA) (the RTA Amendment Act). As the explanatory memorandum for the bill that became the RTA Amendment Act explains, the then existing penalties were very low by comparison with the penalties that would apply if the person were charged with, and convicted of, dangerous driving occasioning death or grievous bodily harm or bodily harm, as a consequence of an incident. The RTA Amendment Act very significantly increased the penalties for offences of the type committed by the appellant. The explanatory memorandum states:
These amendments are intended to act as a deterrent to a person who might otherwise elect to flee the scene of an accident in order to escape the possible conviction of a dangerous driving charge and the imposition of the associated penalty.
65 Section 59 of the RTA deals with dangerous driving causing death or grievous bodily harm. It relevantly provides:
(1) If a motor vehicle driven by a person (the driver) is involved in an incident occasioning the death of, or grievous bodily harm to, another person and the driver was, at the time of the incident, driving the motor vehicle -
(a) while under the influence of alcohol … to such an extent as to be incapable of having proper control of the vehicle;
the driver commits a crime.
Grounds 1 and 2
67 Based on the sentencing judge's findings, particularly those relating to the appellant's reasons for leaving the incident scene and consuming alcohol thereafter, there is no arguable claim that the sentencing judge erred in characterising the s 54(2) offending as serious.
68 As part of this ground, the appellant contends that it was not open to the sentencing judge to find, beyond reasonable doubt, that his intention in consuming alcohol after the incident was to prevent police obtaining admissible evidence as to his blood alcohol level at the time of the incident. The sentencing judge based his finding on the fact the appellant (1) knew or feared that at the time of the incident he was driving in excess of the alcohol limit and that it might place him in difficult circumstances; (2) travelled to his grandfather's residence by a circuitous route and arranged for his vehicle to be placed behind the house; (3) went into the house and spoke to his grandfather, who gave him a cup of coffee, and then remained at the house for over two hours and consumed more alcohol. Further, the sentencing judge had the advantage of hearing all the evidence at trial, including that given by the appellant. This court is not in a position to conclude that the sentencing judge's finding was not open. Ground 1 does not have a reasonable prospect of succeeding. Leave to appeal should be refused.
69 As to ground 2, the appellant contends it was not open to the sentencing judge to attribute to the appellant responsibility for prolonging the grieving process of the deceaseds' families. The sentencing judge accepted the evidence in the victim impact statement of Mr Bynder's father and of other relatives of the deceased who expressed the same sentiments. The relatives reaction was objectively reasonable. This ground of appeal has no reasonable prospect of succeeding. Leave to appeal must be refused.
Manifest excess - counts 1, 2 and 3
70 This court can only intervene if the sentencing judge made an express or implied material error of fact or law. The claim of manifest excess relies on the implication of error. The sentence must be shown to be unreasonable or plainly unjust. In determining whether an implied error has been made, regard is had to the maximum sentence for the offence, the standards of sentencing customarily observed, the place which the criminal conduct occupies on the scale of seriousness and the personal circumstances of the offender.
71 There are a limited number of comparable cases. The appellant relies on Fazari v The State of Western Australia [2012] WASCA 176, Abeyakoon v Brown [2011] WASCA 63 and Staley v Lopes [2005] WASCA 75. The last case was decided under the former statutory regime and is not relevantly comparable. A small number of cases does not establish a customary range. In any event, they do not support a claim that the sentences imposed on the appellant are manifestly excessive. In this case there were no mitigating factors of any significance and the aggravating factors place the appellant's conduct in the serious category. The sentencing judge's positive findings as to the appellant's motivation in leaving the scene and consuming more alcohol are significantly aggravating. I am satisfied these grounds do not have a reasonable prospect of succeeding. Accordingly, leave must be refused.
Totality
72 The first limb of the totality principle requires that the total effective sentence bear a proper relationship to the overall criminality involved in all the offences, viewed in their entirety and having regard to the circumstances of the case, including those referable to the offender personally. The second limb of that principle is that the court should not impose a crushing sentence. Crushing in this context connotes the destruction of any reasonable expectation of a useful life after release: Roffey v The State of Western Australia [2007] WASCA 246 [24] - [25].
73 The total effective sentence is towards the upper end of the sentencing range but not, in my view, in breach of the totality principle. All the findings made by the sentencing judge were adverse to the appellant. His limited insight, responsibility and remorse justified the sentencing judge's assessment of the need for personal deterrence. There were no significant mitigating factors. Importantly, the legislature has underscored the need for strong deterrent sentences in order to prevent offenders taking active steps to avoid prosecution for offences in which they are held responsible for the death or grievous bodily harm to victims of motor vehicle accidents. Accordingly, I would dismiss ground 5.
Conclusion on sentence appeal
74 I would refuse leave to appeal on grounds 1, 2, 3 and 4 and dismiss ground 5. Accordingly, the sentence appeal must be dismissed.
75 MAZZA JA: All of the relevant background to these appeals has been set out in the reasons of McLure P and Corboy J. For the reasons given by Corboy J, I agree that, in the appeal against conviction, leave to appeal on proposed ground 2 should be refused and that the appeal should be dismissed.
76 I wish to add observations of my own with respect to the nature of the assistance a driver is duty bound to ensure a victim receives, pursuant to s 54(2) of the Road Traffic Act.
77 First, the duty to ensure a victim receives all the assistance that is necessary and practicable in the circumstances is owed to each victim. Thus, in cases where there is more than one victim, what is necessary or practicable in the circumstances may vary according to a victim's condition.
78 Second, the precise nature of any assistance a driver must ensure each victim receives is undefined, save that it includes (but is not
restricted to) medical aid. The assistance a driver must ensure each victim receives will depend upon the circumstances in each case and what is necessary and practicable, having regard to those circumstances. So, for example, a driver may be obliged to ensure that an immobile victim on a roadway is not inadvertently injured by other road users.
79 With respect to the appeal against sentence, I agree, for the reasons given by both McLure P and Corboy J, that leave to appeal should be refused on proposed grounds 1 to 4 and the appeal be dismissed. I agree with their Honours that the total effective sentence is high, but I have not been persuaded that his Honour erred, either in the imposition of the individual sentences or the total effective sentence.
CORBOY J:
Summary
80 The appellant struck two pedestrians, Mr Bynder and Ms Ryan, while driving on Chapman Valley Road, Waggrakine. The incident occurred at approximately 6.50 pm on 5 October 2013.
81 The appellant immediately stopped his vehicle and remained at the scene of the incident for a short time. However, he left after other people arrived at the scene.
82 The appellant did not assess the injuries sustained by Mr Bynder and Ms Ryan nor did he call emergency services. However, he was aware before he left the scene that a call to emergency services had been made; that someone had felt for a pulse for Mr Bynder and Ms Ryan and that a pulse had been obtained for Ms Ryan but not for Mr Bynder. CPR was subsequently administered but Mr Bynder and Ms Ryan died at the scene of the accident.
83 The appellant drove from the scene to his grandfather's house. He drank two stubbies of beer and then returned to the scene at about 9.05 pm.
84 The appellant was convicted after a trial before Birmingham DCJ and a jury of two counts of failing to ensure that the victim of a road traffic incident received all the assistance that was necessary and practicable, contrary to s 54(2) of the Road Traffic Act 1974 (WA) (RTA) (count 1 of the indictment concerned Mr Bynder; count 2, Ms Ryan). The appellant was also convicted of failing to report a road traffic incident, contrary to s 56(1) RTA. He was sentenced to a total effective sentence of
4 years 6 months' imprisonment to be served immediately. He was also disqualified from holding a driver's licence for 4 years.
85 The appellant appeals against his conviction and sentence. As to his conviction, the appellant alleged that the trial judge erred by ruling that:
(a) evidence that the appellant had been previously convicted of a drink driving offence and that he had been charged with a similar offence shortly prior to the incident was admissible under s 31A of the Evidence Act 1906 (WA) as propensity evidence (ground 1);
(b) the jury was not required to consider the defence of emergency (proposed ground 2).
86 As to his sentence, the appellant alleged that:
(a) it had not been reasonably open to the sentencing judge to:
(i) find that the criminality involved in the offences committed against s 54(2) RTA was 'most serious' (proposed ground 1);
(ii) attribute to the appellant responsibility for prolonging the grieving process of the families of the deceased because of the appellant's actions on the night of the incident (proposed ground 2);
(b) the sentence imposed for each offence was manifestly excessive (proposed grounds 3 and 4);
(c) the total effective sentence imposed infringed the first limb of the totality principle (ground 5).
87 The appellant was granted leave to appeal from his conviction on ground 1 and from his sentence on ground 5. The appellant's application for leave to appeal on the remaining grounds was referred to the hearing of the appeal (order made on 22 March 2015).
88 The trial judge directed the jury on the elements of the offence created by s 54(1) RTA, rather than s 54(2), for counts 1 and 2. That was not a matter raised by the appellant. However, the court raised whether a substantial miscarriage of justice had occurred as a result of the trial judge's misdirection. The court also raised whether:
(a) the appellant could be convicted of the offence alleged in count 1 if Mr Bynder had died immediately after being struck by the appellant's vehicle;
(b) whether the trial judge had misdirected the jury on the use that could be made of the evidence admitted under s 31A of the Evidence Act and if so, whether a substantial miscarriage of justice had occurred.
89 I have concluded for the reasons that follow that:
(a) the trial judge did not err by ruling that the defence of emergency should not be left with the jury;
(b) the trial judge did not err by ruling that evidence of the appellant's drink driving record was admissible;
(c) it is not necessary to determine whether his Honour erred in directing the jury on the use that could be made of the evidence concerning the appellant's drink driving record as any error could not have resulted in a substantial miscarriage of justice;
(d) the trial judge's misdirection on counts 1 and 2 did not cause a substantial miscarriage of justice having regard to the elements of the offences created by s 54(1) and s 54(2) RTA and the trial judge's directions on what the jury was required to decide in determining whether the prosecution had proved the charges alleged in the indictment;
(e) the evidence did not establish that Mr Bynder had died by the time that the appellant left the incident scene and the prosecution proved beyond a reasonable doubt that the appellant did not ensure that Mr Bynder received all the assistance that was reasonable and practicable in the circumstances;
(f) leave to appeal on proposed grounds 1 to 4 of the appeal against sentence should be refused and the appeal should be dismissed.
The State's case
90 Ms Gaunt was driving on Chapman Valley Road at the time of the incident. She saw two bodies lying on the road as she approached the incident scene. The appellant's vehicle was parked on the verge. She stopped and spoke to the appellant, who appeared to be in a state of shock: he was '[j]ust walking and - yes - upset' (ts 162).
91 Ms Gaunt telephoned the police. She saw the appellant drive away from the scene while she was on the phone. Other people arrived and she was aware that someone had taken a pulse and that somebody had enquired about CPR. However, she was unable to say whether that had occurred before or after the appellant had driven away.
92 Ms Muller was also driving on Chapman Valley Road at the time of the incident. She saw two 'shadows' on the road and then the appellant 'jumped out' at her and flagged her down to stop. The appellant was the only other person at the scene.
93 Ms Muller got out of her car and asked the appellant what had happened. She did not hear his reply, but she then asked him whether he had called an ambulance. He replied, 'no', and Ms Muller called emergency services and requested an ambulance.
94 Ms Muller felt for and was able to obtain a pulse for Ms Ryan. She was aware that someone else had felt for but could not obtain a pulse for Mr Bynder. CPR was commenced on Mr Bynder and Ms Ryan.
95 Ms Muller counted how many people were at the scene while she was speaking to the emergency services operator. The appellant was not among those present. CPR continued on Mr Bynder and Ms Ryan until ambulances arrived.
96 Mr and Mrs Noble lived in Chapman Valley Road, close to where the incident occurred. They heard a noise from the incident and went to the scene. Mrs Noble saw the appellant at the scene. He was speaking to a woman. He then left in a vehicle. Mr Noble endeavoured to locate a pulse for Mr Bynder and Ms Ryan. He was unable to obtain a pulse for Mr Bynder, but he felt a faint pulse for Ms Ryan. He then assisted in controlling traffic in the vicinity until the police and ambulances arrived. Others at the scene administered CPR to Mr Bynder and Ms Ryan.
97 Sergeant Walkerden attended the incident scene in response to Ms Gaunt's telephone call (which was timed at 6.52 pm). He and his partner, Constable Arthurs, arrived at the scene at 7.01 pm. First aid was being administered by people at the scene when they arrived. Sergeant Walkerden and others continued CPR on Mr Bynder until the ambulances arrived; Constable Arthurs continued CPR on Ms Ryan. Sergeant Walkerden did not know whether Mr Bynder was alive while he was performing CPR.
98 Sergeant Walkerden observed a vehicle arrive at the scene at approximately 9.05 pm. The appellant and his grandfather were in the vehicle. The appellant's grandfather informed Sergeant Walkerden that the appellant had been the driver of the vehicle involved in the incident.
99 Constable Parks also attended the incident scene. The appellant submitted a preliminary sample of his breath and advised Constable Parks that he had consumed alcohol at his grandfather's house after the incident. Constable Parks and his partner, Constable McCosh, took the appellant to the house. They were shown six empty stubbies of beer on a table located in a shed. The appellant admitted that he had drunk two stubbies of beer after the incident. He also admitted that he had drunk four stubbies before the incident.
100 Senior Constable Burrows also attended the scene. He arrived at approximately 8.10 pm. Paramedics had certified Mr Bynder and Ms Ryan as dead by the time that he had arrived at the scene.
101 Senior Constable Mawdesley gave evidence that '000' calls requesting an ambulance attend the scene were received at 6.51 pm and 7.00 pm. Ambulances were dispatched at 7.17 pm and 7.18 pm and arrived at the scene five minutes later. They cleared the scene at 8.02 pm.
102 The appellant was taken from his grandfather's house to the Geraldton Police Station. He submitted a further sample of his breath and participated in an electronically recorded interview. It was not possible to accurately estimate the quantity of alcohol in the appellant's blood at the time of the incident because of the presence of the alcohol that had been subsequently consumed.
103 The appellant stated in his recorded interview:
I, I braked. There was no time to brake when they ran out in front. As soon as I hit them I braked instantly. I don't know if the brakes locked up. I don't know. I just pulled up on the left and ran back down the road with me hands in the air tryin' to stop other cars, 'cause they were in the middle of the road. Well, on, still on the, on the road, two people.
SCON BurroUGHs: Did you get to check either of them for pulses, signs of life?
[THE APPELLANT]: [indistinct] other lady, I believe it was the one in the little red car. I think that was her who pulled up. She was checking. And she said the, the one closest towards Kultown Drive had a slight pulse but the one closest to town didn't. And then more cars just kept comin', and I just freaked out. I just left, running scared. I didn't know what to do.
SCON BURROUGHS: Did you make any attempt to ring emergency services, triple oh?
[THE APPELLANT]: I was in too much shock. I didn't, I didn't think at all. I couldn't think (BB 134).
104 And:
SGT KEELS: Did you render any assistance to the people that had been hit by you?
[THE APPELLANT]: I got out of my vehicle and ran up to assess them.
SGT KEELS: Yeah.
[THE APPELLANT]: As I was running up I stopped the other lady. I believe she got out and she was checking them, ringing the police or ringing someone, and she said this one's dead and this one's just alive. The one closes to Kultown was apparently just alive.
…
SCON BURROUGHS: And did you render that person that you were told was still alive any assistance?
[THE APPELLANT]: I didn't touch anyone (BB 141 - 142).
105 Senior Constable Mawdesley gave evidence that:
(a) The appellant had been convicted on 17 May 2012 of driving with a blood alcohol level in excess of 0.08 g per 100 ml of blood.
(b) The appellant had been charged on 12 September 2013 with driving with a blood alcohol content in excess of 0.05 g per 100 ml of blood. A court hearing notice had been sent to the appellant on 30 September 2013 requiring him to appear in the Geraldton Magistrates Court on 10 October 2013. The appellant was convicted of the offence on his endorsed plea of guilty.
106 This was the evidence that the trial judge ruled was admissible under s 31A of the Evidence Act as propensity evidence (the s 31A Evidence).
The appellant's evidence
107 The appellant's evidence was that he had been working until about 4.00 pm on the day of the incident. He had planned to go camping that evening and had drunk four beers while packing his vehicle.
108 The appellant described in his evidence how the incident had occurred (there were no witnesses to the incident and the State made no allegation concerning the manner in which the appellant had driven his vehicle). The appellant had immediately stopped his vehicle and started walking back to where Mr Bynder and Ms Ryan lay on the road. He saw another vehicle travelling towards him and waved his arms to attract the attention of the driver (Ms Muller must have been the driver of that vehicle). The vehicle stopped and the driver got out of her car and asked whether he had called an ambulance. He replied, 'no', and the driver reached inside her car for a mobile phone and made a call. The appellant continued:
As she was making the call, we went to the male and she checked his pulse. He didn't have a pulse. He - - -
Mr MACFARLANE: Did she say anything to you about that? - - - She told me he didn't have a pulse. He was just laying, still. Could see he was Aboriginal. And after that, we went back to the female. She checked her pulse, and then she said she had a slight pulse, and she wasn't moving. She was Aboriginal as well.
…
She had a slight pulse. She just wasn't moving. Could see she was Aboriginal as well. I looked around and then freaked out, got - didn't know what to do, scared. Figured soon enough someone is going to come along that knows them, family or friends, and know that I did it. I just thought I'm going to be severely beaten up or worse. So I went back to my car. I seen [sic] a little red car there, parked behind my car. She asked if I was ok. I don't remember answering her. I got into my car and travelled west onto Hall Road (ts 325).
109 The appellant then drove to his grandfather's house and informed his grandfather about what had happened. He made telephone calls and had two beers while making the calls. He then agreed to travel to the police station with his grandfather. In fact, they drove back to the incident scene where the appellant identified himself to the police as the driver of the vehicle that had been involved in the incident.
110 In cross-examination, the appellant accepted that he had not assessed the injuries sustained by either Mr Bynder or Ms Ryan but he said that somebody else had made an assessment. He denied that he had left the scene immediately after telling the driver of the vehicle that had stopped that he had not called an ambulance. Rather, he had remained with the driver while she endeavoured to locate a pulse for Mr Bynder and Ms Ryan. His cross-examination continued:
Do you agree that you personally did not do anything to assist the people on the road? Now, I'm not talking about whether you had a reason not to, but just, as objective fact, you did not do anything to assist the people on the road? - - - Yes.
You didn't touch them? - - - Yes.
You didn't know yourself whether they were alive or dead? - - - Myself, no.
You didn't know yourself whether they could be saved? - - - No.
But you know that you hit them? - - - Yes.
I'm not saying that necessarily your fault, but you hit them with your car? - - -Yes.
You've then turned, haven't you, after she has done that, and it may be that only took a few - matter of seconds, and gone back to your car and left, haven't you? - - - Yes.
And you walked back, you noticed Mrs Gaunt's red car, and then you've got in your car and left? - - - Yes.
Didn't tell anyone you were leaving? - - - No.
Why not? - - - I just wanted to get out of there (ts 349).
111 The appellant again accepted later in his cross-examination that he 'effectively did nothing' to assist Mr Bynder or Ms Ryan (ts 351).
The s 31A application
112 A directions hearing was held to consider, among other things, the State's application to admit the s 31A Evidence. The application was made in anticipation of the appellant raising a defence of emergency under s 25 of the Criminal Code. However, the State did not press the application when the appellant's counsel indicated that the issues for the jury would be whether the appellant's actions at the scene had been sufficient to meet the obligation imposed by s 54(2) RTA and whether the appellant had satisfied the requirements of s 56(1) by returning to the scene and speaking to the police officers who had been present.
113 That remained the position on the first day of the trial when various matters concerning the conduct of the trial were raised with the trial judge. However, the appellant's counsel advised the court at the start of the second day (before the prosecutor had opened the State's case) that 'a positive defence will now be raised … in regards to [the appellant's] state of mind … at the time he has left the scene' (ts 89). Counsel confirmed that the appellant intended to give evidence to the effect that he had feared for his safety and that he had left the incident scene for that reason - that is, that he had left in the belief that circumstances of sudden or extraordinary emergency existed.
114 The State then renewed its application to admit the s 31A Evidence. It was submitted that the evidence could provide an alternative explanation for why the appellant had left the scene - that he had consumed alcohol before the accident, had a prior conviction and a pending charge for drink driving offences and knew that he would be subjected to a breathalyser test if he remained at the scene. It was also suggested that it would be open to the jury to infer that the appellant had deliberately consumed alcohol after leaving the scene so that his blood alcohol level at the time of the incident could not be accurately measured.
115 The trial judge allowed the State's application. His Honour held that the s 31A Evidence was relevant to the issue of why the appellant had left the scene of the incident for the reasons given by the State and was admissible under s 31A of the Evidence Act as propensity evidence.
The trial judge's ruling on emergency
116 There was no evidence given in the trial that any person who attended the scene behaved aggressively or in a way that was threatening while the appellant was present. Rather, the witnesses who arrived immediately after the incident stated that those present had worked cooperatively to administer CPR to Mr Bynder and Ms Ryan and to control traffic until the police and ambulances had arrived. The appellant's counsel did not challenge that evidence. Accordingly, the evidence did not disclose any reasonable grounds for the appellant's stated belief that he was at risk if he remained at the incident scene.
117 The trial judge ruled at the completion of the evidence that the defence of emergency should not be left with the jury. His Honour stated:
At its highest and most favourable to the accused is his evidence that he could see that one of the persons he had struck and, as he by implication by the words used that he could see that she being the female pedestrian was Aboriginal as well, that he looked around and freaked out. He figured - he said that he figured that:
'… soon enough family friends would come and know what I did. I thought I was going to be severely beaten up or worse and then went to the car'.
In my view, that does not constitute a reasonable ground to allow - sufficient to warrant the matter to be left with the jury. There is no evidence before the court of any circumstances that would in any way suggest that by reason - or that the accused could reasonably believe that he was in danger. There was no evidence given of any basis upon which he held that view save that it was based on colour and nothing else (ts 390 - 391).
Section 54 and s 56 RTA
118 Section 54 RTA states that:
(1) If a vehicle driven by a person (the driver) is involved in an incident occasioning bodily harm to another person, the driver must stop immediately after the occurrence of the incident and for as long as is necessary to comply with subsections (2) and (6).
(2) If a vehicle driven by a person (the driver) is involved in an incident occasioning bodily harm to another person (a victim), the driver must ensure that each victim receives all the assistance, including medical aid, that is necessary and practicable in the circumstances.
(3) A person who contravenes subsection (1) or (2) commits a crime.
Penalty: imprisonment for -
(a) 20 years, if the incident occasioned death;
(b) 14 years, if the incident occasioned grievous bodily harm but not death;
(c) 10 years, in any other case.
…
(4) If in the opinion of the court an offence under subsection (3) is of a sufficiently serious nature the court may make an order disqualifying the offender from holding or obtaining a driver's licence for such period as it thinks fit.
(5) It is a defence to a charge of an offence under subsection (3) for the accused to prove that the accused was not aware of the occurrence of the incident.
(6) If a vehicle driven by a person (the driver) is involved in an incident occasioning bodily harm to another person (a victim), the driver must, if required to do so by a victim, a representative of a victim, or a police officer, give the driver's name and address and, if known to the driver, the name and address of a responsible person for the vehicle.
…
(7) It is a defence to a charge of an offence under subsection (3) or (6) for the accused to prove that the accused could not comply with a requirement in the relevant provision because of an injury suffered by the accused in the incident.
119 Section 56 RTA provides that:
(1) If a vehicle driven by a person (the driver) is involved in an incident occasioning bodily harm to another person, the driver must report the incident forthwith to the officer in charge of a police station.
(2) If a person contravenes subsection (1) and the incident occasioned death or grievous bodily harm, the person commits a crime.
Penalty: imprisonment for 10 years and in any event the court convicting the person must order that the offender is disqualified from holding or obtaining a driver's licence for a period of not less than 12 months.
…
(5) It is a defence to a charge of an offence under subsection (2) … for the accused to prove that -
(a) the accused could not comply with a requirement in the relevant provision because of an injury suffered by the accused in the incident; or
(b) a police officer attended at the scene of the incident and took the necessary particulars of the incident.
121 The repealed s 56 made it an offence for a driver involved in a motor vehicle accident in which a person had suffered bodily injury to not report the accident to the officer in charge of the nearest police station. The maximum penalty for the offence was a fine of not more than $800 for a first offence and for any subsequent offence, a fine of not more than $1,600 or imprisonment for 12 months.
122 The obvious intent of the Amendment Act was to substantially increase the penalties for the offences created by s 54 and s 56. The second reading speech for the Bill that became the Amendment Act explained that the amendments followed an incident in which an elderly pedestrian had been struck by a vehicle. The driver had not stopped and the pedestrian had died from his injuries. However, the driver was only fined $800 on his conviction for failing to stop and for failing to render assistance.
123 Section 54(1) in its current form requires a driver involved in an incident occasioning bodily harm to another person to stop immediately after the incident and to remain at the scene for a period of time - for as long as necessary to comply with the requirements imposed by s 54(2) and s 54(6). Section 54(2) and s 54(6) then impose positive obligations on the driver while stopped at the scene of the incident.
124 Obviously, s 54(1) will apply where a driver does not stop immediately after an incident occasioning bodily harm to another person. Similarly, s 54(2) will apply where the driver stops and remains at the incident, but fails to render all the assistance that is necessary and practicable in the circumstances. However, the sections will overlap in their application where the driver stops immediately after the incident but does not remain at the scene for so long as is necessary to ensure that the victim receives all the assistance that is necessary and practicable. In that case, the driver could be charged with an offence against s 54(1) or s 54(2) (as the driver will have failed to render all the assistance that was necessary and practicable by prematurely departing from the incident scene).
125 Where an offence is alleged against s 54(1) in circumstances where the driver stopped immediately following the incident but subsequently departed, it will be necessary to make an assessment of the assistance that ought to have been provided to the victim of the incident. That will be required so that a finding can be made about whether the driver departed the incident scene when it was still necessary and practicable for the victim to receive assistance. Obviously, a determination must also be made under s 54(2) about what assistance was necessary and practicable in the circumstances if the driver is charged with an offence under that section.
126 The obligation imposed on a driver by s 54(2) is to 'ensure' that the victim receives all the assistance that is necessary and practicable. The Macquarie Dictionary defines the word 'ensure' to mean:
1. to secure, or bring surely, as to a person: this letter will ensure you a hearing. 2. to make sure or certain to come, occur, etc: measures to ensure the success of an undertaking.
127 Accordingly, the driver is not necessarily required to personally provide all the assistance that is necessary and practicable. Rather, the driver is obliged to secure or to make sure or certain that the victim receives the required assistance. So, for example, the driver may satisfy the requirements of s 54(2) by ensuring that another person at the scene has called an ambulance or has administered first aid. However, the expression 'receives all the necessary assistance' suggests that the obligation imposed by s 54(2) may be a continuing obligation in some circumstances. That is, it may not be sufficient for the driver to ensure, for example, that first aid had commenced to be administered by someone at the incident scene; the driver may be required to remain at the scene to ensure that aid is continued and that there is nothing further that is required to be done to assist the victim.
128 The obligation imposed by s 54(2) is qualified by the words 'necessary and practicable'. Those words import an objective test for determining whether the driver has complied with the section. The question of whether a driver has complied with s 54(1) is also to be objectively determined, as is the question of whether the driver had reported an incident 'forthwith' as required by s 56(1).
157 As has been noted, the fact that Mr Noble had been unable to obtain a pulse does not mean that Mr Bynder had died by the time that the appellant decided to leave the incident scene. In the circumstances, it was necessary and practicable for Mr Bynder to receive assistance in the form of CPR until the police and ambulances arrived. He also received necessary assistance when those present at the scene assumed responsibility for controlling traffic in the vicinity. That protected Mr Bynder from the risk of further injury as he lay on the road receiving aid. The appellant was required to ensure that Mr Bynder received that assistance and to remain at the incident scene for that purpose.
The conviction on counts 1 and 2
158 Section 30(3) of the Criminal Appeals Act 2004 (WA) (CAA) provides that an appeal against conviction must be allowed if in the opinion of the court:
(a) the verdict of guilty on which the conviction is based should be set aside because, having regard to the evidence, it is unreasonable or cannot be supported; or
(b) the conviction should be set aside because of a wrong decision on a question of law by the judge; or
(c) there was a miscarriage of justice.
159 Section 30(4) provides:
Despite subsection (3), even if a ground of appeal might be decided in favour of the offender, the Court of Appeal may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred.
160 McLure P has considered the meaning and effect of those sections in light of the reasons of the High Court in Filippou v The Queen [2015] HCA 29; (2015) 89 ALJR 776. I have not found it necessary to examine the extent to which, if at all, the High Court intended in Filippou to depart from, or reformulate, the principles stated in Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300. Rather, I have concluded that:
(a) the appeal against conviction should be dismissed applying my understanding of the principles stated in Weiss v The Queen (as explained by this court in, for example, Hughes v The State of Western Australia [2015] WASCA 164); and
(b) the result would be same if the test of a substantial miscarriage is whether 'the possibility cannot be excluded beyond reasonable doubt that the appellant has been denied a chance of acquittal which was fairly open to him or her or that there was some other departure from a trial according to law that warrants that description': Filippou [15].
161 As McLure P has explained, generally the proviso in s 30(3) has been applied by considering two matters: outcome and process. In relation to the process aspect, the High Court stated in Wilde v The Queen [1988] HCA 6; (1988) 164 CLR 365 that the proviso has no application where there had been such a departure from the essential requirements of the law that the irregularity goes to the root of the proceedings. Errors of that kind are so fundamental that the application of the proviso is excluded by their very nature. However, the High Court explained in AK v The State of Western Australia [2008] HCA 8; (2008) 232 CLR 438 that what was said in Wilde 'is not to be taken as if it were a judicially determined exception grafted upon the otherwise general words of the relevant statute' [54]. The reasoning in Wilde simply acknowledged that there is a particular class of circumstances in which errors at trial can be described as radical. Accordingly, the application of the proviso is not to be decided by reference to the form of expression used in Wilde and there is no rigid formula for determining whether a miscarriage of justice is substantial: and see Cesan v The Queen [2008] HCA 52; (2008) 236 CLR 358 and Patel v The Queen [2012] HCA 29; (2012) 247 CLR 531 [126] - [127] (French CJ, Hayne, Kiefel and Bell JJ).
162 Ordinarily, a failure to direct the jury on the correct offence would be a process error of a radical kind. That occurred in Mehajer v The Queen[2014] NSWCCA 167 when the trial judge directed the jury on the offence created by s 249B(2)(b) of the Crimes Act 1900 (NSW) whereas the indictment had alleged an offence against s 249B(2)(a)(i). As Bathurst CJ observed:
In the present case the jury was directed as to the wrong offence. The effect was that they were not instructed on the elements they were required to consider before entering a verdict. It is an essential feature of a jury trial that a jury is directed as to the relevant law to the extent necessary, the direction as to the law being given in the context of the facts of the case: Alford v Magee [1952] HCA 3; (1952) 85 CLR 437 at 466 and Huynh v The Queen [2013] HCA 6; (2013) 87 ALJR 434 at [31]. A direction as to the wrong charge means essentially that the jury did not consider the guilt or innocence of the accused on the charge for which he was indicted: c/f Andrews v The Queen [1968] HCA 84; (1968) 126 CLR 198 at 207. The miscarriage of justice in these circumstances was substantial and it is inappropriate to apply the proviso [135].
163 However, I do not consider that a substantial miscarriage of justice occurred as a result of the trial judge's direction in the unusual circumstances of this matter. As has been explained, the offences created by s 54(1) and s 54(2) overlapped on the facts alleged by the State - the appellant was alleged to have failed to ensure that Mr Bynder and Ms Ryan received all the assistance that was necessary and practicable because he left the scene a few minutes after the incident and while Mr Bynder and Ms Ryan required assistance (that is, the appellant allegedly committed the offences with which he had been charged by not complying with the obligation imposed by s 54(1)).
164 The trial judge directed on the issues that the jury was required to decide for an offence against s 54(2), notwithstanding that he did so by referring to s 54(1). The jury was instructed to objectively determine whether 'when the accused left the scene, as he did ... [the appellant] had then ensured that each victim was receiving or had received all the assistance, medical aid, that was necessary and practicable in the circumstances'. His Honour followed that direction by reminding the jury of the obligation imposed by s 54(2).
165 As to the outcome of the trial, I have already noted my agreement with the observation of the President that the appellant's own evidence established that he was guilty of the charges alleged in the indictment.
The appeal against sentence
The sentencing remarks
166 The sentencing judge referred to the s 31A Evidence and stated that he was satisfied beyond a reasonable doubt that the reason why the appellant had left the incident scene was 'the fear for your own wellbeing in relation to the legal consequences for your conduct that night in driving a motor vehicle whilst affected by alcohol'. His Honour stated that he was fortified in that view by the fact that the appellant did not immediately drive to the nearest police station after leaving the incident scene, but rather he 'went around the streets back to where your grandfather was by a circuitous route' and 'arranged for the vehicle to be placed behind the house' (ts 478).
167 His Honour further found that the police had been unable to adduce evidence of the appellant's blood alcohol level at the time of the incident because the appellant had subsequently consumed alcohol and that this had been his purpose in drinking the stubbies of beer at his grandfather's house (ts 479). Further, the fact that the appellant had left the incident scene before the police arrived and had failed to report the incident forthwith prevented any 'real analysis' of the circumstances of the accident.
168 His Honour also referred to a psychological report that had been obtained for the purpose of sentencing and noted that the psychologist who had prepared the report considered that the appellant tended to be 'self-focused' rather than 'being respectful and caring towards others' as a result of childhood experiences and immaturity (ts 482). The psychologist considered that the appellant minimised and justified his offending, in particular his past drink-driving offences.
169 The sentencing judge concluded that the appellant lacked insight into the causes of his offending and that his criminal history demonstrated 'a persistent defiance and disregard for the law in relation to traffic matters, and in particular driving [a] motor vehicle whilst affected by alcohol' (ts 489). Further, his Honour considered that the appellant's behaviour in leaving the scene showed a callous disregard for the wellbeing of the victims which, when considered with the appellant's criminal history, indicated that personal deterrence, as well as general deterrence, was a relevant factor for sentencing (combined appeal book, 58, 59 and 62).
170 As to count 3, the sentencing judge observed:
In relation to count 3, failure to report the matter forthwith, in my view this is a most serious breach of your obligation and your failure to report the matter forthwith and your conduct immediately following the incident seriously impacted upon the capacity to properly investigate the offending or the incident that night, and the matters generally arising from that incident … (combined appeal book, 63).
171 Further, it was apparent from the whole of the sentencing remarks that his Honour regarded the appellant's offending to be a serious example of this type of offence.
The principles
172 This court can only interfere with a sentence that has been imposed if the sentencing judge has made an express or implied material error of fact or law. Further, an appeal against sentence will only be allowed if, in the court's opinion, a different sentence ought to have been imposed: s 31(4)(a) Criminal Appeals Act. The principles to be applied by the court in forming its opinion were summarised by McLure P and Owen JA in Wilson v The State of Western Australia [2010] WASCA 82 [2]. They reflect the discretionary nature of sentencing.
173 The totality principle requires a judge who is sentencing an offender for a number of offences to ensure that the aggregation of the sentences appropriate for each offence is a just and appropriate measure of the total criminality involved: Postiglione v The Queen (1997) 189 CLR 295, 307 - 308 (McHugh J). The principle is expressly recognised in the Sentencing Act: s 6(1), read with s 6(3)(b). The total effective sentence imposed must bear a proper relationship to the overall criminality involved in all the offences for which an offender is to be sentenced, viewed in their entirety and having regard to the circumstances of the case, including those referable to the offender personally: Roffey v The State of Western Australia [2007] WASCA 246 [24]. However, it is of little importance how the ultimate aggregate is made up where considerations of totality apply: Roffey [26].
174 An allegation that the aggregate sentence imposed infringed the totality principle is an allegation of implied error. The sentence must be unreasonable or plainly unjust before it can be disturbed by an appellate court: Barbaro v The Queen (2014) 253 CLR 58 [26]; Stokke v The State of Western Australia [2015] WASCA 131 [63].
175 An allegation that a sentence is manifestly excessive is also an allegation of implied error. In determining whether a sentence is manifestly excessive, the court will have regard to the maximum sentence for the offence; the standards of sentencing customarily imposed for sentences of a relevant type; the seriousness of the offending and the personal circumstances of the offender. However, the court will not intervene merely because it might have imposed a different sentence to that which had been imposed. Error may be implied if the result is unreasonable or unjust: Dinsdale v The Queen (2000) 202 CLR 321.
176 The maximum penalty for a statutory offence provides an indication of the relative seriousness of the offence and must be taken into account in determining the appropriate sentence. An increase in the maximum penalty is an indication that sentences for the offence should be increased to take account of Parliament's revised view of the gravity of the offence: McLaughlin v TheState of Western Australia [2012] WASCA 204 [59] - [63]; Edmonds v The State of Western Australia [2013] WASCA 255
Comparable sentences
177 The range of sentences customarily imposed does not establish the range of a sound sentencing discretion. Rather, sentences that are customarily imposed for an offence provide a yardstick or reference point for ensuring broad consistency in sentencing, bearing in mind the scope for significant variations in relevant facts: Brown v The State of Western Australia [2011] WASCA 111; (2011) 207 A Crim R 533 [6] (McLure P).
178 Further, as Buss JA observed in Abfahr v The State of Western Australia [2013] WASCA 87, a sentencing range for offences against s 54 and s 56 RTA has yet to be established since the maximum penalty for those offences was increased significantly in 2008 [69]. The appellant in that case had been sentenced to 18 months for failing to stop following a road traffic incident occasioning bodily harm and 12 months for failing to report the incident. He did not appeal from those sentences.
179 In addition to Abfahr, I have reviewed Fazari v The State of Western Australia [2012] WASCA 176 and Abeyakoon v Brown [2011] WASCA 63; (2011) 211 A Crim R 338. The appellant in Fazari was sentenced to terms of imprisonment of 2 years (reduced from 2 years 6 months on grounds of totality) for an offence against s 54(2) RTA, 18 months for an offence against s 56(1) and 2 years for attempting to pervert the course of justice, contrary to s 143 of the Criminal Code. He had fled the scene of an incident in which a number of people were injured. He subsequently lied to the police when questioned about the incident and as a result, another person was arrested and charged. Buss JA (with whom Murphy and Mazza JJA agreed) held that the sentences imposed for the offences against the RTA were manifestly excessive. His Honour stated:
In my opinion, the failing to stop offence and the failing to report offence committed by the appellant, while serious, were not within the upper range of seriousness for offences of the kind in question. This was not a hit and run accident. The appellant did not cause the collision. Fortunately, it occurred during daylight in a Perth suburb and, as a result, there were numerous bystanders who were available to assist, and did assist, the occupants of the bus immediately. One or more of the bystanders summoned medical assistance, including ambulances, and the police. None of the injuries suffered by the occupants of the bus was exacerbated by the appellant's failure to stop and render assistance. The appellant abandoned the truck at the scene and, but for his attempt to pervert the course of justice for which he was separately charged and punished, the police would easily have been able to ascertain his identity.
I am persuaded that when all of the relevant facts and circumstances are evaluated and weighed from the perspective of the maximum available penalties, the objective seriousness of the offending and the appellant's personal circumstances (including his fast-track pleas of guilty), and in the context of the necessity to avoid punishing the appellant more than once for identical aggravating factors and identical exacerbating consequences which are attributable to the same conduct, the individual sentences of 2 years 6 months' immediate imprisonment, reduced to 2 years in the application of the totality principle, for count 1 (being the failing to stop offence) and 18 months' immediate imprisonment for count 2 (being the failing to report offence) were plainly unreasonable or unjust [79] - [80].
180 The appellant was resentenced to 18 months' imprisonment for the offence against s 54(2) and 6 months' imprisonment for the offence against s 56(1).
181 In Abeyakoon, the appellant successfully contended that a sentence of 12 months' imprisonment for an offence against s 54(2) was manifestly excessive. He was resentenced to a term of imprisonment of 9 months in circumstances where his failure to remain at the scene of the incident was partly explained by the aggressive behaviour of a person at the scene and the appellant's dazed and confused state immediately following the incident.
182 There were significant differences between the circumstances considered in Fazari and Abeyakoon. The appellants in Fazari and Abeyakoon pleaded guilty. The maximum penalty for the offence committed by the appellant in Abeyakoon was 10 years' imprisonment and the appellant did not have a significant history of serious traffic offending. The appellant left the scene after being aggressively confronted and telephoned his parents or brother, who then informed the police. The appellant then spoke to the police and returned to the scene. The sentencing judge accepted that the appellant had shown a 'great amount of remorse'.
183 The maximum penalty for the offence committed by the appellant in Fazari was 14 years. The appellant had not caused the collision and there were different issues of totality as the appellant had been sentenced to a lengthy term of imprisonment for drug dealing. It is to be noted, however, that Buss JA apparently considered that the seriousness of the offending was mitigated by the fact that the injuries suffered by the victims were not exacerbated by the appellant's flight from the incident scene.
Conclusion
184 The appellant denied that he had consumed alcohol after the incident so that his blood alcohol level at the time of the incident could not be accurately assessed. He stated that he had drank two stubbies of beer at his grandfather's house to calm down and did not know that consuming alcohol after the incident could affect the calculation of his blood alcohol level at an earlier time (ts 355 -56 and 360).
185 The sentencing judge did not accept the appellant's evidence on those matters and drew an inference that was adverse to the appellant for the purpose of sentencing. It is not alleged that his Honour applied the wrong standard in drawing that inference. His Honour had the advantage of making findings after having observed the appellant give evidence and with the benefit of having heard all of the evidence presented at trial. I am not persuaded that his Honour erred by making a finding that was not open to him on the evidence.
186 I should add that, in my view, the s 31A Evidence was plainly admissible for the purpose of sentencing the appellant. The reason why the appellant left the scene, and what he did prior to returning to the scene to report his involvement in the incident, were relevant to the circumstances in which the offences were committed and to assessing the seriousness of his offending.
187 As the sentencing judge observed, the effect of the appellant consuming alcohol following the incident was that the police were unable to accurately assess his blood alcohol level at the time of the incident in circumstances where he had admitted to drinking four stubbies of beer prior to the incident. The police were unable to fully investigate the incident and in particular, whether the appellant had committed any further offence. The sentencing judge rightly regarded the appellant's consumption of alcohol following the incident as a significant aggravating factor.
188 In my view, the appellant has not established that the sentencing judge made a material error in characterising the seriousness of the appellant's offending. I do not consider that there was a reasonable explanation for the appellant failing to remain at the incident scene to ensure that Mr Bynder and Ms Ryan received assistance for the reasons given earlier. I would refuse leave to appeal on proposed ground 1 of the appeal against sentence.
189 The sentencing judge's comments regarding the actions of the appellant prolonging the grieving process for the deceased's family reflected the victim impact statements that had been received. The comment also reflected his Honour's conclusion regarding the callousness of the appellant's conduct in leaving the incident scene so soon after such a serious collision. It must have been immediately apparent to the appellant when he left that Mr Bynder and Ms Ryan had, at the very least, sustained significant injury. In my view, proposed ground of appeal 2 also has no reasonable prospect of success.
190 I have carefully reviewed the decisions of this court in Fazari and Abeyakoon in considering whether the sentences imposed by the sentencing judge for each of the offences committed by the appellant was manifestly excessive. However, two cases can only provide very limited guidance. Further, there are important differences between the relevant sentencing factors in those cases and the circumstances of the appellant's offending and his personal circumstances. As the sentencing judge found, there were factors that substantially aggravated the seriousness of the appellant's offending and, as the President has observed, little by way of mitigation. I am not persuaded that the sentences imposed were manifestly excessive having regard to the maximum penalty, the aggravating factors identified by the sentencing judge and the absence of any significant mitigating factors.
191 The total effective sentence imposed is high. However, I agree with the President that the total sentence does not infringe the first limb of the totality principle having regard to the following matters:
(a) the significant revision in Parliament's view of the seriousness of the offences;
(b) the sentencing judge's conclusion as to why the appellant left the incident scene and his motive for subsequently drinking beer and the effect that the appellant's conduct had on the ability of the police to investigate the incident;
(c) the seriousness of the injuries sustained by the victim (reflected in the maximum penalties for the offences);
(d) the sentencing judge's findings regarding the appellant's personal circumstances;
(e) the need for personal and general deterrence.
192 I would dismiss ground 5 of the appeal for the reasons given by the President.
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