Rhodes v The State of Western Australia - [2022] WASCA 168

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   RHODES -v- THE STATE OF WESTERN AUSTRALIA [2022] WASCA 168
CORAM:   BUSS P
MITCHELL JA
VAUGHAN JA

HEARD:   19 AUGUST 2022
DELIVERED          :   16 DECEMBER 2022
FILE NO/S:   CACR 132 of 2021
BETWEEN:   KATELYN MARYANN RHODES
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   STEVENSON DCJ
File Number            :   IND 1220 of 2020

Catchwords:

Criminal law - Appeal against sentence - Appellant convicted after trial of one count of dangerous driving occasioning death - Appellant sentenced to 4 years 6 months' immediate imprisonment - Manifest excess

Legislation:

Road Traffic Act 1974 (WA), s 59(1)(b), s 59(3)(b)(i)

Result:

Leave to appeal refused
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	Mr S D Freitag SC
Respondent	:	Mr R F Owen

Solicitors:

Appellant	:	Tudori Hager Grubb
Respondent	:	Director of Public Prosecutions (WA)

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

Barbaro v The Queen [2014] HCA 2; (2014) 253 CLR 58
Billing v The State of Western Australia [2017] WASCA 80; (2017) 80 MVR 127
De Pledge v The State of Western Australia [2021] WASCA 1; (2021) 95 MVR 37
Gray v The State of Western Australia [2015] WASCA 108; (2015) 71 MVR 31
Kershaw v The State of Western Australia [2014] WASCA 111; (2014) 66 MVR 551
Kirby v The State of Western Australia [2016] WASCA 199; (2016) 78 MVR 380
Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665
Lutumba v The State of Western Australia [2013] WASCA 172
Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600
Rubin v The State of Western Australia [2016] WASCA 2; (2016) 75 MVR 274
The State of Western Australia v Butler [2009] WASCA 110
The State of Western Australia v Doyle [2017] WASCA 207
The State of Western Australia v Murray [2020] WASCA 190; (2020) 94 MVR 426
Timbrell v The State of Western Australia [No 2] [2013] WASCA 269; (2013) 240 A Crim R 1

JUDGMENT OF THE COURT:

This is an appeal against sentence.
The appellant was convicted, after a trial before Stevenson DCJ and a jury, of one count in an indictment.
The count alleged that on 11 September 2019, at Rockingham, the appellant drove a Holden Clubsport motor vehicle, which was involved in an incident occasioning the death of Daniel Kevan John Avins, and that at the time of the incident the appellant drove the motor vehicle in a manner that was, having regard to all the circumstances of the case, dangerous to the public or to any person, contrary to s 59(1)(b) of the Road Traffic Act 1974 (WA) (the RT Act).
The maximum penalty for the offence is 10 years' imprisonment and a fine of any amount. Also, the offender must be disqualified from holding or obtaining a motor driver's licence for not less than 2 years.
On 31 August 2021, the trial judge sentenced the appellant to 4 years 6 months' immediate imprisonment with parole eligibility. The sentence began on the date that it was imposed. His Honour ordered that the appellant be disqualified from holding or obtaining a motor driver's licence for 3 years 6 months.
The appellant has appealed against the sentence of imprisonment but not against the period of disqualification.
The sole ground of appeal alleges that the length of the term of immediate imprisonment imposed by his Honour was manifestly excessive.
On 5 January 2022, Buss P referred the application for leave to appeal on that ground to the hearing of the appeal.
The ground of appeal does not have a reasonable prospect of success. Leave to appeal should be refused. The appeal must be dismissed.

The facts and circumstances of the offending, the trial judge's sentencing remarks and the appellant's personal circumstances

The facts and circumstances of the offending were as follows.
On the evening of 11 September 2019, the appellant was driving a high‑powered Holden Clubsport motor vehicle on Ennis Avenue, Rockingham. She was familiar with the area. The appellant had been driving erratically in relation to a Holden Nova motor vehicle for some distance before the incident. This erratic driving was not part of the charged offence but provided the context in which the offending occurred. The appellant stopped at a red traffic signal at the intersection of Ennis Avenue and Dixon Road. The driver of the Holden Nova and the driver of a three‑tonne truck also stopped at the red traffic signal. The Holden Nova was in the left lane, the appellant's vehicle was in the middle lane and the truck was in the right lane. Traffic through the intersection was moderate. The area was well lit.
The driver of the Holden Nova, while his vehicle and the appellant's vehicle were stationary at the intersection, revved the engine of the Holden Nova. The appellant responded by revving the engine of her vehicle. The Holden Nova moved slightly over the white line at the intersection. The driver of the Holden Nova brought his vehicle under control but the vehicle remained slightly over the white line.
The appellant then revved the engine of her vehicle and launched her vehicle into the intersection, contrary to the red traffic signal, resulting in a collision between her vehicle and a Mitsubishi Starwagon motor vehicle driven by Mr Avins, who was travelling in a westerly direction on Dixon Road. Mr Avins died at the scene from injuries he sustained in the collision. One of his passengers was injured. The appellant's 6‑year‑old daughter, who was a passenger in her vehicle, was also injured.
The trial judge made the following findings:
(a)The appellant 'load[ed] up' (ts 375) her vehicle by activating both the brake and the accelerator. This increased the torque in such a manner that the rear of the appellant's vehicle went downwards before the brake was released. Consequently, the appellant's vehicle was launched into the intersection at a high rate of acceleration. Between the stationary launch to the collision, a distance of about 14 metres, the appellant reached a speed of 52 to 55 km per hour. The mechanism by which this slingshot effect was achieved, using the brake and the accelerator, was described in detail by a qualified mechanic who gave evidence at the trial.
(b)The appellant was focussed on the Holden Nova. She had no situational awareness of Mr Avins' vehicle. The appellant behaved and reacted in response to the Holden Nova without any regard to other vehicles in the vicinity. The appellant did not look to see if the traffic signal she was facing had turned green.
(c)The collision was (ts 371):
not an accident occasioned by mere inadvertence or momentary inattention. [The appellant] made a conscious decision notwithstanding the circumstances to launch [her] vehicle into the intersection in response to the behaviour of [the driver of the Holden Nova]. [The appellant was] making a statement about the vehicle [she was] driving and [her] own driving as the driver in public and in a very visible way for all to see. [The appellant's] level of culpability in all the circumstances was high.
(d)Mr Avins' vehicle would have been 'nearly 22 metres through the other side of the intersection, that is, safely through the lights, if [the appellant] had not launched [her] vehicle into the intersection, contrary to the red lights facing [her] and for which [she] had stopped' (ts 368).
His Honour identified a number of aggravating factors. In particular:
(a)Initially, the appellant was stationary at a red traffic signal at a controlled intersection. The cross‑traffic was entitled to expect that other drivers would obey the red traffic signal and to assume that they may travel safely through the intersection on a green or (safe) amber traffic signal (ts 370, 374 ‑ 375).
(b)The appellant's vision to her right was blocked by the three‑tonne truck so that she could not ascertain whether any traffic, such as Mr Avins' vehicle, was entering the intersection from the right (ts 370, 375).
(c)The appellant drove at an excessive speed in the space and time available as a result of the extraordinary acceleration of her vehicle over the short distance before the collision (ts 367, 370, 375 ‑ 376).
(d)The appellant's manner of driving over the short distance before the collision was attributable to the appellant's informed and deliberate decision in circumstances where it should have been obvious to her that to drive in the manner she did was dangerous and inviting possible disaster (ts 371, 376).
The appellant was born on 10 February 1992. She was aged 27 at the time of the offence and was aged 29 when sentenced.
The appellant was born in Tasmania. Since 2009 she has resided in Western Australia (apart from a period between April 2017 and September 2017 when she returned to Tasmania). The appellant left school in the middle of year 11 to commence employment with a local business. At the time of sentencing she carried on a cleaning business. The appellant has a daughter, who was aged 8 years at the time of sentencing, and a son, who was aged 2 months at the time of sentencing. The appellant's partner is the father of her young son. The appellant and her partner have been in a relationship for about four years. The appellant is generally in good health. She does not drink alcohol or use illicit drugs.
The appellant did not have the mitigation that a plea of guilty would have brought. His Honour found, however, that the appellant, through her counsel, facilitated 'an efficient and expeditious trial of the factual matters' (ts 376).
The trial judge did not accept that the appellant was fully and genuinely remorseful for the offence. Also, his Honour was unable to discern that the appellant genuinely accepted responsibility for her offending. His Honour did, however, accept that the appellant regretted what had happened. The appellant eventually appreciated the impact and the devastation that her driving had caused to Mr Avins' family and friends. His Honour noted the tragedy and trauma revealed by a number of victim impact statements his Honour had received.
The appellant had a prior traffic record in Western Australia. Each of her previous offences in this State had been punished by a fine of between $100 and $550. The appellant also had three previous convictions for relatively minor offences in Tasmania. His Honour found that, as a result of the appellant's traffic record, she could not be sentenced as a person of otherwise prior good character.
The trial judge took into account a letter of apology written by the appellant to the court and written references from people who knew and spoke well of the appellant.
His Honour also took into account that a term of immediate imprisonment would create hardship for the appellant's family including her young children. The appellant would not have the opportunity of being with her young children in their formative years. His Honour mentioned the policy of the Department of Corrective Services in relation to mothers and the primary care for their children, especially in relation to children under the age of 1 year. It was not suggested to his Honour that the circumstances of the appellant's case in relation to her young children were exceptional.

Counsel for the appellant's submissions

Counsel for the appellant submitted that although a term of immediate imprisonment was warranted for the appellant's offending, the length of the term was manifestly excessive in all the circumstances.
Counsel noted that the offending did not involve any of the following factors which might have aggravated its seriousness; namely, alcohol or drugs; a lengthy period of dangerous driving; unlicensed driving; or any other illegal activities such as endeavouring to escape from police or driving a stolen vehicle.
Counsel emphasised that the appellant moved a distance of only about 14 metres before the collision. The offending involved one catastrophic decision to drive dangerously for a very short time.

Counsel for the State's submissions

Counsel for the State submitted that the sentence imposed upon the appellant, having regard to the serious nature of her deliberate conduct and all other relevant circumstances, was neither unreasonable nor plainly unjust.

The relevant provisions of the RT Act

At the material time, s 59(1) of the RT Act provided, relevantly:
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; or
(ba)while under the influence of drugs to such an extent as to be incapable of having proper control of the vehicle; or
(bb)while under the influence of alcohol and drugs to such an extent as to be incapable of having proper control of the vehicle; or
(b)in a manner (which expression includes speed) that is, having regard to all the circumstances of the case, dangerous to the public or to any person,
the driver commits a crime and is liable to the penalty in subsection (3).
At the material time, s 59(3) of the RT Act provided:
A person convicted on indictment of an offence against this section is liable -
(a)if the offence is against subsection (1)(a), (ba) or (bb), or the offence is against subsection (1)(b) and is committed in circumstances of aggravation, to a fine of any amount and to imprisonment for -
(i)20 years, if the person has caused the death of another person; or
(ii)14 years, if the person has caused grievous bodily harm to another person;
or
(b)in any other circumstances, to a fine of any amount and to imprisonment for -
(i)10 years, if the person has caused the death of another person; or
(ii)7 years, if the person has caused grievous bodily harm to another person,
and, in any event, the court convicting that person shall order that he be disqualified from holding or obtaining a driver's licence for a period of not less than 2 years.

The merits of the appeal

The appellant does not challenge any of the trial judge's findings of fact or allege that his Honour made any other express error.
A ground of appeal which alleges that a sentence is manifestly excessive asserts the existence of implied error. It is necessary, in determining whether a sentence is manifestly excessive, to examine it from the perspective of the maximum sentence prescribed by law for the relevant offence, the standards of sentencing customarily observed with respect to that offence, the place which the criminal conduct occupies on the scale of seriousness of offences of the kind in question, and the personal circumstances of the offender.
The guidance afforded by comparable cases is flexible rather than rigid. The mere fact a sentence is within the range of other sentences imposed for similar offending does not necessarily establish that there was an appropriate exercise of the sentencing discretion in the particular case. Similarly, the mere fact that a sentence is outside the range does not necessarily establish that the exercise of the sentencing discretion in the particular case miscarried.
A sentencing range for comparable offences is merely one of the factors to be taken into account in deciding whether an individual sentence is manifestly excessive. A range of sentences customarily imposed is of significance for the purpose of ensuring broad consistency in the sentencing of offenders in broadly comparable cases. However, a sentencing range for comparable cases does not fix the range of a sound exercise of the sentencing discretion in a particular case.
When this court dismisses an appeal against sentence, and when it allows an appeal against sentence and resentences the offender, this court's decision on the sentencing outcome does not, of itself, fix the upper or lower limit of the range.
If, in a particular case where manifest excess is alleged, there are no directly comparable cases, this court is not precluded from deciding that an individual sentence is or is not manifestly excessive. It merely has the consequence that this court has no directly comparable cases to provide a yardstick against which to assess the sentence. However, previous sentencing ranges are only one pointer to the adequacy of a sentence. See Munda v The State of Western Australia;[1] The State of Western Australia v Doyle.[2]
[1] Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600 [38] - [39] (French CJ, Hayne, Crennan, Kiefel, Gageler & Keane JJ).
[2] The State of Western Australia v Doyle [2017] WASCA 207 [36] (Buss P, Mazza JA & Hall J).
Except where a mandatory sentence is prescribed, a sentencing judge exercises a discretionary judgment which is subject to applicable statutory provisions and judge-made law. See Barbaro v The Queen.[3]
[3] Barbaro v The Queen [2014] HCA 2; (2014) 253 CLR 58 [25] (French CJ, Hayne, Kiefel & Bell JJ).
In the present case, his Honour was obliged to sentence the appellant in accordance with the sentencing principles set out in pt 2 div 1 of the Sentencing Act 1995 (WA).
The discretion conferred on sentencing judges is, of course, of fundamental importance and this court may not substitute its opinion as to sentencing for that of the sentencing judge merely because it would have exercised the discretion in a different manner. See Lowndes v The Queen.[4]
[4] Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 [15] (Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne & Callinan JJ).
As we have mentioned, the maximum penalty for the offence of dangerous driving occasioning death, contrary to s 59(1)(b) of the RT Act, where the offence is not committed in circumstances of aggravation, is 10 years' imprisonment and a fine of any amount. See s 59(3)(b)(i) of the RT Act.
We have considered a number of decisions of this court involving appeals against sentence for dangerous driving occasioning death where the maximum penalty was 10 years' imprisonment; namely, Lutumba v The State of Western Australia;[5] Timbrell v The State of Western Australia [No 2];[6] Kershaw v The State of Western Australia;[7] Gray v The State of Western Australia;[8] Rubin v The State of Western Australia;[9] Kirby v The State of Western Australia;[10] The State of Western Australia v Murray;[11] and De Pledge v The State of Western Australia.[12] It is unnecessary to repeat the facts and circumstances of those cases or the sentencing outcomes. There are some comparable features between some of those cases and the present case, but there are also distinguishing features.
[5] Lutumba v The State of Western Australia [2013] WASCA 172.
[6] Timbrell v The State of Western Australia [No 2] [2013] WASCA 269; (2013) 240 A Crim R 1.
[7] Kershaw v The State of Western Australia [2014] WASCA 111; (2014) 66 MVR 551.
[8] Gray v The State of Western Australia [2015] WASCA 108; (2015) 71 MVR 31.
[9] Rubin v The State of Western Australia [2016] WASCA 2; (2016) 75 MVR 274.
[10] Kirby v The State of Western Australia [2016] WASCA 199; (2016) 78 MVR 380.
[11] The State of Western Australia v Murray [2020] WASCA 190; (2020) 94 MVR 426.
[12] De Pledge v The State of Western Australia [2021] WASCA 1; (2021) 95 MVR 37.
There is no tariff for offences of the kind committed by the appellant because of the great variation that is possible in the circumstances of the offending and the offenders. See The State of Western Australia v Butler;[13] Billing v The State of Western Australia.[14]
[13] The State of Western Australia v Butler [2009] WASCA 110 [7] (Wheeler JA; Pullin JA agreeing).
[14] Billing v The State of Western Australia [2017] WASCA 80; (2017) 80 MVR 127 [40] (Mazza JA; Buss P & Newnes JA agreeing).

In the present case, the appellant's offending conduct was undoubtedly serious. Her offending conduct arose from her interaction with the driver of the Holden Nova while they were stationary at the intersection of Ennis Avenue and Dixon Road. She made a deliberate decision to launch her vehicle into the intersection at a high rate of acceleration by activating both the brake and the accelerator and then releasing the brake. The appellant made that decision in response to the driver of the Holden Nova having revved his engine and having moved slightly over the white line. The interplay between the appellant and the driver of the Holden Nova had the flavour of a challenge as to which of them could accelerate more quickly from their stationary position at the intersection. So, to that extent, the challenge involved, in essence, an invitation to race their vehicles. The appellant's offending conduct was extremely dangerous. She was focussed on the Holden Nova without regard to other vehicles in the vicinity including the cross‑traffic. The appellant's view of the cross‑traffic was at least partly obscured by the three‑tonne truck. She entered the intersection without bothering to see whether the traffic signal she was facing had turned green.
It is true that the offending did not involve alcohol or drugs, a lengthy period of dangerous driving, unlicensed driving or other illegal activities. However, the absence of those factors did not mitigate the appellant's offending conduct. If any of those factors had been present the appellant's offending would have been more serious.
It is also true that the appellant's vehicle travelled a distance of only about 14 metres before the collision. However, that fact does not diminish the seriousness of the dangerous manner in which the appellant drove her vehicle. The length of the period of dangerous driving is merely one factor (and, in a particular case, may be a significant factor) in evaluating the seriousness of an offence of dangerous driving occasioning death. Another factor in that evaluation is the nature and quality of the dangerous driving. As we have mentioned, what the appellant actually did in the present case was extremely dangerous.
There was only limited mitigation. The appellant went to trial and consequently did not have the benefit of a plea of guilty (although the appellant did, through her counsel, facilitate an efficient and expeditious trial of the factual matters). She was not youthful for sentencing purposes. The appellant was not fully and genuinely remorseful. She did not genuinely accept responsibility for her offending. The appellant could not be sentenced as a person of otherwise prior good character because of her previous traffic record.
Personal deterrence, general deterrence and the protection of vulnerable members of the public in motor vehicles on public roads were important sentencing considerations.
In our opinion, the sentence of 4 years 6 months' immediate imprisonment was commensurate with the seriousness of the offence. We are satisfied, after assessing all relevant facts and circumstances and all relevant sentencing considerations, that the length of the sentence was not unreasonable or plainly unjust. We have formed that conclusion upon evaluating the sentence from the perspective of the maximum penalty; the facts and circumstances of the offence; the seriousness of the offending (including the aggravating factors and the vulnerability of Mr Avins); the general pattern of sentencing for offences of this kind; the importance of personal and general deterrence and the protection of vulnerable members of the public in motor vehicles on public roads; the impact of the offending upon Mr Avins' family and friends; and all mitigating factors. Error is unable to be inferred from the sentencing outcome. The sentence is not manifestly excessive.
The ground of appeal fails.

Conclusion

The ground of appeal did not have a reasonable prospect of success. Leave to appeal should be refused. The appeal must be dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
BS
Associate to the Honourable Justice Buss
16 DECEMBER 2022