Rubin v The State of Western Australia - [2016] WASCA 2

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: RUBIN -v- THE STATE OF WESTERN AUSTRALIA [2016] WASCA 2

CORAM: MARTIN CJ
MAZZA JA
HALL J

HEARD: 12 OCTOBER 2015

DELIVERED : 12 OCTOBER 2015

PUBLISHED : 8 JANUARY 2016

FILE NO/S: CACR 149 of 2015

BETWEEN: JEROME RUBIN
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :BOWDEN DCJ
File No  :IND 619 of 2015

Catchwords:

Criminal law - Sentencing - Appeal against sentence - Appellant convicted of dangerous driving occasioning death, grievous bodily harm and bodily harm - Whether general deterrence should have been given any weight in sentencing appellant - Whether terms of imprisonment should have been suspended - Whether sentencing judge made erroneous finding of fact

Legislation:

Road Traffic Act 1974 (WA), s 59(1)(b)
Sentencing Act 1995 (WA), s 9AA, s 32, s 39(2), s 39(3)

Result:

Leave to appeal refused on grounds 1 and 3
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Mr S Watters
Respondent: Mr L M Fox

Solicitors:

Appellant: Mark Andrews Legal Pty Ltd
Respondent: Director of Public Prosecutions (WA)

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

Barbaro v The Queen [2014] HCA 2; (2014) 253 CLR 58
Chan v The Queen (1989) 38 A Crim R 337
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
Director of Public Prosecutions (Vic) v Janson [2011] VSCA 19; (2011) 31 VR 222
Fogg v The State of Western Australia [2011] WASCA 11
Gray v The State of Western Australia [2015] WASCA 108
Kershaw v The State of Western Australia [2014] WASCA 111
Lutumba v The State of Western Australia [2013] WASCA 172
Paparone v The Queen [2000] WASCA 127; (2000) 112 A Crim R 190
Timbrell v The State of Western Australia (No 2) [2013] WASCA 269; (2013) 240 A Crim R 1
Timbrell v The State of Western Australia [No 2] [2013] WASCA 269; (2013) 240 A Crim R 1
Vagh v The State of Western Australia [2007] WASCA 17

MARTIN CJ: After considering the written submissions provided by the parties and hearing argument, the court unanimously ordered that this appeal against sentence should be dismissed for reasons to be published. These are my reasons for concluding that the appeal should be dismissed.

The convictions and sentences imposed

The appellant, Jerome Rubin, entered fast‑track pleas of guilty to two counts of dangerous driving occasioning death, and three counts of dangerous driving occasioning grievous bodily harm. In addition, he was sentenced on an additional count of dangerous driving occasioning bodily harm pursuant to a notice issued in accordance with s 32 of the Sentencing Act 1995 (WA) (the Act). Mr Rubin was sentenced to 18 months imprisonment on each of the counts of dangerous driving occasioning death. He was sentenced to 12 months imprisonment on each of the counts of dangerous driving occasioning grievous bodily harm, and to 6 months imprisonment on the charge of dangerous driving occasioning bodily harm which was the subject of the s 32 notice. None of the terms of imprisonment were suspended, and the sentencing judge directed that all terms of imprisonment be served concurrently. The sentencing judge also directed that Mr Rubin be eligible for parole. The total effective sentence imposed was a term of imprisonment of 18 months to be immediately served.

The circumstances of the offence

Mr Rubin lives in the USA. In early March 2015 he travelled with his wife, Joan, to New Zealand and then to Australia for a holiday, and to visit their daughter, Julia, who was living in Perth for the purpose of undertaking university studies. Mr Rubin had hired motor vehicles and had driven in New Zealand and Australia before the accident which gave rise to the charges brought against him. That driving was essentially the limit of his experience of driving on the left‑hand side of the road.
On 20 March 2015, Mr Rubin was driving a Nissan Pulsar sedan in a southerly direction on Albany Highway in Bedfordale. His daughter, Julia, was sitting next to him in the front passenger seat and his wife, Joan, was seated behind him in the rear passenger seat. It was a clear sunny morning and the road was dry.
Mr Rubin drove along a section of the highway which comprised a dual carriageway accommodating two lanes of traffic heading south, and another dual carriageway accommodating two lanes of traffic heading north. For a time those carriageways were separated by a substantial vegetated median strip.
As Mr Rubin travelled south, the configuration of the highway altered to a configuration in which the dual carriageways were no longer separated by a median strip, but were adjacent to each other, and separated only by line markings.
Further south again, the configuration of the highway altered such that it comprised a single carriageway in each direction on a single surface separated only by markings on the road. Prior to that point being reached, motorists driving south are warned of the change of configuration by at least four signs indicating that the dual carriageway was finishing, and would merge into a single carriageway. Those signs included a sign bearing the words 'left lane ends in 500 metres', another sign bearing the words 'left lane ends - merge right', and another sign bearing the words 'form one lane'.
In addition, following the merger of the dual carriageways into a single carriageway in each direction, those carriageways are separated by a double white line down the middle of the road. Such a marking would, of course, provide a clear indication to any motorist that the road was not a dual carriageway, as dual carriageways are ordinarily separated by broken white lines, indicating the motorist's capacity to move from one carriageway to the other.
At a point some distance south of the point at which the dual carriageways converge into a single carriageway in each direction, Mr Rubin was driving his vehicle south in the northbound carriageway. He encountered a Mitsubishi Magna vehicle being driven north in that carriageway by Mr Ryan Julius. Notwithstanding each driver's attempt to avoid a collision, the vehicles collided head on and each was severely damaged. The Nissan Pulsar driven by Mr Rubin rolled over and came to rest on its roof in the centre of the northbound carriageway.
There is no suggestion that either driver was affected by alcohol, drugs or fatigue at the time of the accident, or that either vehicle was exceeding the applicable speed limit.
A drive‑through re‑enactment by police established that it would take approximately 50 seconds to drive south from the point at which the dual carriageways converged into a single carriageway in each direction to the place where the collision occurred, driving at the applicable speed limit. Although it is clear that Mr Rubin's vehicle was heading south in the northbound carriageway shortly prior to the collision, the evidence did not establish the point at which he moved his vehicle into that carriageway. He told police that he had moved his vehicle into that carriageway in order to overtake a truck, but that assertion is not consistent with the observations made by a motorist who was travelling behind Mr Rubin's vehicle. The version of events given by Mr Rubin to police was discounted by his counsel both at the time of sentence and on appeal, on the basis that it may well be explained by the serious injuries which he suffered in the accident. The statement given to police by the witness to whom I have referred suggests that Mr Rubin may have driven the vehicle in which he was travelling south from the southbound carriageway to the northbound carriageway at some point between the point at which the dual carriageways converge into a single carriageway in each direction, and the point of impact.
The observations of the witness are consistent with that part of the statement given by Mr Rubin to police in which he told them that he thought he was still on a dual carriageway heading south. Given Mr Rubin's extensive driving experience on the right‑hand side of the road, if that were his belief, it would be natural for him to move to the right‑hand lane of a dual carriageway in the absence of any other traffic.
As the sentencing judge observed, the collision had tragic and devastating consequences. Mr Rubin's wife was killed and his daughter suffered serious injuries to her chest and shoulder. The driver of the other vehicle, Mr Ryan Julius, also suffered serious injury, which could have had devastating effects but for the medical treatment which he received. Tragically, his two‑year‑old daughter, Carmen, suffered injuries which caused her death in hospital the following day. His father suffered serious injuries constituting grievous bodily harm and Carmen's mother suffered injuries properly characterised as bodily harm.

The circumstances of the offender

Mr Rubin was 61 years of age at the time of the accident and at the time of sentence. He was born in and has lived in the United States all his life, except for occasional overseas travels. After completing the degree of Bachelor of Arts in psychology, and the degree of Master of Arts in social work, Mr Rubin has worked predominantly as a social worker and psychotherapist. Immediately prior to the accident he was in private practice as a psychotherapist. Since the accident, he has only practised in that field in a reduced capacity as a result of the psychological and physical impact of the accident.
Mr Rubin and his wife were married for 28 years prior to the accident. There are three daughters of the marriage, all of whom are adults and have followed their parents into careers in health service. Prior to the accident, the family was close and supportive, although the accident and its tragic consequences have placed stresses upon the relationships Mr Rubin enjoys with his daughters, particularly the daughter who was injured in the accident. Mr Rubin's eldest daughter assumed the role of caretaker for her sisters, which has delayed her opportunity to come to terms with the loss of her mother.
Mr Rubin is an active member of a church and had the benefit of support from other members of the church upon his return to the USA prior to sentencing. He also received psychotherapy to deal with the high level of emotional distress which he suffered as a consequence of the accident. Mr Rubin's psychotherapist described him as having 'been devastated by his involvement in the accident and this has caused him to be extremely emotionally dysregulated with frequent tearfulness, agitation, panic attacks and a profound sense of guilt and remorse.' Mr Rubin was also treated with medication prescribed by a psychiatrist and received general medical treatment in relation to the significant physical injuries which he suffered in the accident.
Mr Rubin has no prior criminal record in any country, and no previous traffic convictions of any relevance to the circumstances of the accident.

Mitigating factors

Mr Rubin is a man of previously unblemished record who is highly regarded within the community in which he lives. There is no doubt that he is deeply and genuinely remorseful. He offered to participate in mediation with the surviving members of the family injured in the other vehicle, and to offer a full written or oral apology, although those offers were declined.
Mr Rubin cooperated fully with police, and it is accepted that his erroneous description of the circumstances immediately prior to the accident involving a truck is most likely attributable to post‑traumatic amnesia rather than to any conscious attempt to diminish his own culpability. Mr Rubin entered a plea of guilty to the charges brought against him at the earliest opportunity and was sentenced under the fast‑track process.
Mr Rubin has suffered and will continue to suffer from the very significant consequences of the accident which he caused including his physical injuries. The accident has also had a profound effect upon Mr Rubin's psychological state, and it is reasonable to assume that the realisation that his actions caused the death of his wife and a young child, and serious injury to others, including his daughter, will have a continuing and significant effect upon Mr Rubin for the rest of his life. In short, the tragic consequences of the accident which Mr Rubin caused have resulted in adverse consequences to him of a greater scale and dimension than any possible consequences of the range of sentences reasonably open to the sentencing court.

Aggravating factors

I will deal with the proper characterisation of the culpability of Mr Rubin's conduct in the context of the grounds of appeal. It is not, and has never been, suggested that there are any factors which aggravate that culpability, other than the tragic consequences of the accident. Those consequences include the death of two people and the injury of four others, three of whom were injured seriously.
Victim impact statements provided by the surviving occupants of the vehicle with which Mr Rubin's vehicle collided were produced to the sentencing judge. They graphically reveal the tragic impact which the accident has had and will continue to have upon them and their family. They have been devastated by the loss of their daughter and granddaughter and will forever be deprived of the joy which they could reasonably have expected from watching and assisting her to grow and develop.
The driver of the other vehicle, Mr Ryan Julius, suffered fractures to his neck in two places and was in a neck brace for eight weeks. His kneecap was split and has had to be screwed back together. He suffered brain injury which was, at the time of production of the victim impact statement, causing continuing headaches. He was also suffering continuing back pain. His victim impact statement graphically describes the devastating effect which the loss of his daughter has had upon the family.
Mr Julius' partner and the mother of their child, Ms Tina Briscoe, suffered a fractured sternum, damage to her shin, a whiplash injury, significant bruising to her body and head, a broken toe, a cracked tooth and a split tongue. In her victim impact statement she also describes the devastating effect of the loss of her child and its impact upon the family.
The other surviving occupant of the other vehicle, Mr Julius (senior), suffered a fractured and dislocated hip, a spinal injury, fractured sternum, lacerations to the head and a blood clot in his leg. The horror of the accident continues to haunt him and at the time of preparing his victim impact statement, he had only been able to return to work for a portion of each week. In their victim impact statement, he and his wife describe the devastating loss of their granddaughter and the impact which that loss has had upon the family.

Observations at the time of sentence

The sentencing judge commenced his observations by reference to the maximum penalties applicable to the offences of which Mr Rubin had been convicted. He then stated that he proposed to discount Mr Rubin's sentences by 25% to reflect the benefit to the State of his early pleas of guilt, being the maximum reduction available under s 9AA of the Act.
The sentencing judge then described the circumstances of the offence. As one of the grounds of appeal challenges a particular observation made by the sentencing judge in that context, it will be necessary to return to that particular aspect of the sentencing judge's observations. Otherwise however, the findings made by the trial judge with respect to the circumstances of the accident are consistent with the description I have set out above.
The sentencing judge referred also to Mr Rubin's circumstances, the mitigating factors to which I have referred, and to the tragic consequences of the accident, including the consequences for the occupants of the other vehicle.
The sentencing judge noted the concession made by counsel for Mr Rubin to the effect that sentences of imprisonment were appropriate for the offences of which he had been convicted. The judge gave his reasons for rejecting the submission that those sentences should be suspended in the following terms:[1]
I accept that immediate imprisonment can only be imposed if a suspended sentence would be wholly inappropriate and whilst I agree that you have a wealth of positives insofar as your antecedents are concerned, again, your age, you're 61, no criminal convictions, no traffic [convictions]. You're genuinely remorseful. You cooperated with the authorities. You pleaded guilty. You cooperated with the court. You've been willing to mediate. You've wracked yourself with guilt. It's torn your family apart.
You have excellent references within the community. You've got a good work record, absolutely no risk of you reoffending; no suggestion of any drugs, alcohol, speed, no suggestion of any of that sort of thing and that you've suffered from anxiety and other features relating to this incident.
I accept all of those factors, but it just seems to me that at the end of the day, notwithstanding all of those features, the offence is just so serious because of the death of two persons, because of the grievous bodily harm to three persons, and because of the bodily harm to another person and, as I have said I accept, that you suffered significant injuries, it just seems to me that the offence is so serious that, regrettably, I consider that a suspended sentence would just fail to adequately reflect the serious nature of the offence.
Having said that, I do accept that any sentence I impose should be no more than is necessary to achieve the aims of just punishment, retribution and deterrence and that the overall sentence that I impose must be just and appropriate bearing in mind your personal circumstances and the circumstances surrounding the commission of the offence.
[1] Sentencing ts 28.
The judge then proceeded to impose the sentences which I have set out above.

The grounds of appeal

There are three grounds of appeal. Leave to appeal has been granted in respect of one of those grounds (ground 2) and the question of leave with respect to the other grounds was referred to the hearing of the appeal. It is convenient to deal first with the grounds in respect of which leave to appeal was referred to the hearing of the appeal because, for the reasons which follow, those grounds are without substance.

Ground 1

Ground 1 asserts:
1.The sentencing exercise miscarried when the learned Judge failed to moderate the weight to be accorded to general deterrence based on the degree of the appellant's culpability combined with the significant mitigating factors.
It is clear that the sentencing judge gave no weight to specific deterrence - that is, to the imposition of a sentence which would deter Mr Rubin from reoffending, given the sentencing judge's express finding that there was 'absolutely no risk' that Mr Rubin would reoffend.[2] It may be accepted that the sentencing judge gave some weight to general deterrence, given his acceptance of the proposition that the sentences he was to impose should be no more than is necessary to achieve the aims of just punishment, retribution and deterrence.[3] That is the only reference which the sentencing judge made to general deterrence in the course of his observations.
[2] Sentencing ts 28 - see [29] above.
[3] Sentencing ts 28 - see [29] above and sentencing ts 29.
The ground as enunciated asserts that the judge 'failed to moderate the weight' to be accorded to general deterrence. However, it is not possible to identify the weight which the sentencing judge gave to general deterrence in the sentences which he imposed,[4] either from the observations which he made or the magnitude of the sentences imposed, other than to infer, from the passage to which I have referred, that general deterrence was given some weight. It follows that this ground could only succeed if the appellant establishes that it was an error for the sentencing judge to give any weight at all to general deterrence, and the written submissions filed in support of the ground advance that contention.[5] However, it is not a contention which is supported by principle or authority.
[4] Leaving aside the question of whether the ground as enunciated discloses an appealable error in any event: see Vagh v The State of Western Australia [2007] WASCA 17 [49] (Roberts-Smith JA), [76] (McLure JA) and the authorities cited therein.
[5] AB 10.

General deterrence may be given less weight in the sentences to be imposed for the offences of which Mr Rubin was convicted in cases in which the culpability of the conduct giving rise to the offences is relatively low.[6] However, this is not to say that general deterrence has no weight in such cases. Nor can it be accepted that general deterrence has no weight in cases in which the conduct constituting the offence is negligent, or involves lack of attention rather than wilful misconduct. There are many offences which can be constituted by conduct of that kind. No doubt one of the legislative objectives for the creation of such offences lies in the desirability of encouraging appropriate standards of care, attention and diligence by rendering those who fail to maintain such standards liable to punishment. Further, there is direct authority for the proposition that, generally speaking, general deterrence is an important consideration in all cases of dangerous driving causing death.[7]
[6] Timbrell v The State of Western Australia (No 2) [2013] WASCA 269; (2013) 240 A Crim R 1 [63] (Buss JA, Hall J agreeing).
[7] Timbrell [119] (Mazza JA, citing Director of Public Prosecutions (Vic) v Janson [2011] VSCA 19; (2011) 31 VR 222 [35] (Nettle JA, Kyrou AJA agreeing)).
In support of the proposition that general deterrence may be of no weight in a limited class of 'extreme' cases, reliance was placed upon an observation to that effect in Paparone v The Queen.[8] However, that observation was made in the context of a consideration of the impact which mental illness or intellectual disability might have upon the sentencing process in cases in which a causal relationship between the relevant condition and the offending behaviour has been demonstrated. Obviously cases of that character have no relevance to the sentences properly imposed upon Mr Rubin.
[8] Paparone v The Queen [2000] WASCA 127; (2000) 112 A Crim R 190 [52] (Murray J).
Leave to appeal with respect to ground 1 should be refused because it lacks substance and has no reasonable prospect of succeeding.

Ground 3

Ground 3 asserts that:
3.The learned sentencing Judge erred when he determined the appellant had travelled on the incorrect side of the road for 'about 50 seconds'.
Particulars are given in support of the ground.
The fundamental difficulty with this ground is that the sentencing judge made no such finding. The portion of the observations made at the time of sentence upon which reliance is placed in support of this ground are as follows:[9]
Now, as is clear - and I mean, I've viewed the scene video - as you approach the point of impact, there are a total of four road signs indicating that the dual carriageway that had existed prior to it going into a single lane was about to end. There's a sign saying, 'Left lane ends in 500 metres.' There's a sign saying that, 'Left lane ends. Merge right,' and there's also a, 'Form one lane.'
And no one's estimating precisely the length of time that you were on the single carriageway going south after the dual carriageway merged into the single carriageway, but it seems, if you were doing the speed limit, it was around about 50 seconds. And there's also various markings on the road by way of double white lines, on occasions broken lines and the like, which indicate that you're on a single carriageway.
[9] Sentencing ts 25.
Read literally, the sentencing judge is referring only to the period during which Mr Rubin was driving on the single carriageway going south. However, read in context, it is clear that the sentencing judge identified the period of 50 seconds as the period over which Mr Rubin drove from the point at which the dual carriageways merged into a single carriageway in each direction before arriving at the point of impact which was, of course, on the single carriageway for northbound traffic. The point of the observation was to identify the not insignificant period of time over which Mr Rubin had the opportunity to respond to the various visual signals indicating that the dual carriageways had ceased and merged into a single carriageway in each direction, including the signs to which he referred and the line markings on the road surface. The sentencing judge did not find that Mr Rubin travelled south in the northbound carriageway over that entire distance, nor can the observations which he made at the time of sentence be construed as embodying that finding.
Further, it is clear from a question which the sentencing judge put to the prosecutor a few minutes before he passed sentence that he had a correct understanding of the evidence which had been presented. He asked:[10]
As I read the report from the police officer, the dual carriageway within which he had been travelling had gone into a single lane heading south some 50 seconds prior to, as best one can ascertain, the point or moment of impact. Is that a correct reading of the statement?
[10] Sentencing ts 20.
The prosecutor answered that question in the affirmative. The question posed corresponds to the portion in the observations made at the time of sentence which I have set out above, and which identify the time over which Mr Rubin was exposed to visual markers indicating that he was on a single carriageway prior to the point of impact.
I would also observe that the period of time or the distance over which Mr Rubin was travelling south in the northbound carriageway is not as material to the assessment of his culpability as is the extent of his exposure to the various visual markers which should have indicated to him that he was no longer travelling on a dual carriageway. The latter fact is most material to his level of culpability and was the fact which the sentencing judge addressed in his observations.
Leave to appeal in respect of ground 3 should be refused because it proceeds upon a misconstruction of the findings made by the judge at the time of sentence, is without substance and has no reasonable prospect of succeeding.

Ground 2

Ground 2 asserts:
2.It was not reasonably open to the sentencing Judge to decide that immediate imprisonment was the only appropriate sentencing option;
Particulars:
2.1The appellant's antecedents;
2.2The criminality involved;
2.3The pleas of guilty;
2.4Sentences imposed in, broadly, comparable cases.
As I have noted, counsel appearing before the sentencing judge on behalf of Mr Rubin accepted that sentences of imprisonment were appropriate, and no different submission has been made on behalf of Mr Rubin in support of this appeal. Nor has it been submitted on his behalf that the length of the terms of imprisonment imposed were manifestly excessive. The only proposition advanced in support of this ground of appeal is that the sentencing judge should have suspended the terms of imprisonment which he imposed.
In written submissions filed in support of this ground, it is contended that the ground would be made out if it were established that it was open to the sentencing judge to suspend the terms of imprisonment he was imposing in the exercise of a sound discretionary judgment.[11] In support of that submission, reference is made to s 39(3) of the Act, which provides that a court must not use a sentencing option listed in s 39(2) unless satisfied that it is not appropriate to use any of the options listed before that option. In s 39(2), the option of suspended imprisonment is listed before the option of a term of immediate imprisonment. So, the essence of the proposition is that if an appellate court considers that it would have been open to the sentencing judge to suspend the terms of imprisonment imposed, it follows that terms of imprisonment to be immediately served must have been imposed erroneously, because all less severe sentencing options could not be excluded.
[11] Appellant's written submissions [41].
As counsel for Mr Rubin conceded at the hearing of the appeal, that proposition is erroneous and must be rejected. There will be cases in which different types of sentence, including those listed in s 39(2), may be reasonably open in the exercise of a sound discretionary judgment. That prospect is not excluded either as a matter of logic or in principle by the obligation imposed by s 39(3) that the sentencing judge must be positively satisfied that a less severe type of sentence is not appropriate. Different judges might reasonably form different views on that issue in the exercise of a sound discretionary judgment in borderline cases.[12]
[12] Fogg v The State of Western Australia [2011] WASCA 11 [6] ‑ [10] (McLure P, Mazza JA agreeing).
Ground 2 asserts, in effect, that error is to be implied from the failure of the sentencing judge to suspend the terms of imprisonment which he imposed. Such error may be implied if the sentences imposed are unreasonable or unjust.[13] A sentence will not be characterised as unreasonable or unjust if it was within the range of sentences reasonably open in the exercise of a sound discretionary judgment. Once it is accepted that there may be cases in which different types of sentence are reasonably open in the exercise of a sound discretionary judgment, it follows that an appeal against sentence on the ground of error to be implied from the type of sentence imposed can only succeed if it is established that the type of sentence imposed was not reasonably open in the exercise of a sound discretionary judgment. Notwithstanding s 39(3) of the Act, that burden will not be discharged by establishing that some lesser type of sentence was also within the range reasonably open.
[13] Having regard to the considerations set out in Chan v The Queen (1989) 38 A Crim R 337, 342. See also Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 [3] ‑ [6] (Gleeson CJ & Hayne J).
Applied to the circumstances of this case, it follows that ground 2 can only be made out if it is established that terms of imprisonment to be immediately served were not within the range reasonably open to the sentencing judge in the exercise of a sound discretionary judgment or, put another way, if it is established that suspended terms of imprisonment were the only type of sentence available within that range. That is the question which must now be addressed.
In support of this ground, attention is quite properly drawn to the appellant's unblemished prior record, his early pleas of guilty, and the other mitigating factors to which I have referred. Those matters are not contentious, and need not be revisited.
Reliance was also placed upon the culpability of the conduct giving rise to the offences, and in that context it was submitted that it was 'difficult to envisage a case where the culpability would be lower'.[14] I do not accept that submission for the reasons which follow.
[14] Appeal ts 12.
Mr Rubin was travelling southward in the northbound carriageway because he erroneously believed that he was still driving on a dual carriageway. Assessment of the extent of his culpability turns to a significant extent upon an assessment of the reasonableness of that belief. That in turn directs attention to the matters addressed by the sentencing judge in the passage which I have set out above in relation to ground 1. Those matters include the extent of the signage which indicated to drivers in Mr Rubin's situation that the dual carriageway was to merge into a single carriageway in each direction, the markings on the road surface which conveyed the same message, and the period of time and the distance over which Mr Rubin had the opportunity to observe those various signs, and to appreciate that he was travelling on a road which had a single carriageway in each direction. When account is taken of the four signs which were clearly and readily visible to drivers travelling south, the line markings on the surface of the road, and the period of time and distance over which Mr Rubin had the opportunity to observe those matters and draw an appropriate conclusion from them, it cannot be said that it is difficult to envisage a case in which the culpability of the conduct could be lower.
Before turning to the cases said to be comparable, it is appropriate to emphasise that in cases of dangerous driving causing death, the culpability of the conduct constituting dangerous driving is only one aspect of the offence. The offence is only constituted if the dangerous driving has had the consequence of causing death. It is that element which distinguishes the offence from the less serious offence of dangerous driving. It follows that the range of sentences reasonably open in the exercise of a sound discretionary judgment will be determined not only by reference to the culpability of the offender's conduct but also, and significantly, by reference to the consequences of that conduct. Those consequences will, invariably, be unintended.[15]
[15] If the consequences were intended, other more serious offences would be applicable.
The broad range of conduct which can constitute dangerous driving, the differing levels of culpability applicable to that range of conduct, the range of consequences which may flow from that conduct and the obligation to take both culpability and consequences into account necessarily means that there can be no established tariff or range of sentences applicable to all cases of dangerous driving causing death. There will be cases of dangerous driving causing death in which the culpability of the offender's conduct is relatively low in the scale of things, but the consequences of that conduct are relatively high. Disproportion between the culpability of the offending conduct and its consequences can and often does give rise to difficult sentencing issues. This is such a case.

Other cases

The legislative history of the provisions creating the offence of dangerous driving causing death has been conveniently charted by McLure P in Kershaw v The State of Western Australia.[16] It is unnecessary to recount that history in these reasons, other than to note that the maximum penalty for the offence was increased to 10 years imprisonment by an amendment which came into effect in March 2008. It follows that any sentences imposed for similar offences committed prior to that date will be of limited relevance.
[16] Kershaw v The State of Western Australia [2014] WASCA 111 [25] ‑ [29].
Three cases which are said to be comparable are cited in support of Mr Rubin's appeal. I will deal with each in turn. Before doing so, however, it is perhaps trite to observe that sentences imposed in comparable cases provide a yardstick or reference point for the purpose of ensuring broad consistency in sentencing. The consistency that is sought is consistency in the application of relevant legal principles, rather than numerical equivalence.[17]

Gray

[17] Barbaro v The Queen [2014] HCA 2; (2014) 253 CLR 58 [40] (French CJ, Hayne, Kiefel & Bell JJ).

In Gray v The State of Western Australia,[18] the appellant was convicted following trial on one count of dangerous driving causing death. He was sentenced to a term of 2 years and 2 months imprisonment to be immediately served. The appellant was driving through a dust cloud created by a road train which he was following on a gravel road. He became disoriented by the dust cloud and drifted onto the wrong side of the road, colliding with a vehicle travelling in the opposite direction and causing the death of the driver of that other vehicle. The culpability of the appellant's conduct lay in continuing to drive in circumstances in which visibility was reduced by the dust cloud.
[18] Gray v The State of Western Australia [2015] WASCA 108.
The appellant contended on appeal that the sentence should have been suspended. The appeal was dismissed, and the sentence of immediate imprisonment upheld.
On behalf of Mr Rubin it is submitted that the culpability of his conduct was significantly less than that of the driver in Gray. While I would accept that the culpability of Mr Rubin's conduct was less than the offender in Gray, I would not characterise the difference in relative levels of culpability as significant. It must also be borne in mind that the consequences of Mr Rubin's conduct were greater than the consequences of the comparable conduct in Gray, as in this case two people were killed, three people were seriously injured and another was injured less seriously.

Timbrell

In Timbrell v The State of Western Australia,[19] the appellant pleaded guilty to one count of dangerous driving causing death and one count of dangerous driving causing grievous bodily harm. He inadvertently drove through a red light, colliding with a vehicle driven by the deceased. He was not intoxicated or speeding and was of previous good character.
[19] Timbrell v The State of Western Australia (No 2) [2013] WASCA 269; (2013) 240 A Crim R 1.
The offender was sentenced to a total effective term of 12 months imprisonment to be immediately served. An appeal against sentence was upheld,[20] and the term of 12 months imprisonment was suspended for a period of 9 months.
[20] See Timbrell v The State of Western Australia(No 2) [2013] WASCA 269; (2013) 240 A Crim R 1 (Buss JA & Hall J, Mazza JA dissenting in part).
In Timbrell, the conduct was properly characterised as at the lower end of the scale of seriousness.[21] For the reasons I have developed, Mr Rubin's conduct cannot be characterised in that way. Rather, Mr Rubin's conduct is properly characterised as a continuing failure to appreciate the various signs and visual markers which clearly indicated that he was travelling on a single carriageway, and which he had the opportunity to observe over a distance and time which were not insignificant. I would characterise the culpability of Mr Rubin's conduct as somewhat greater than that of the offender in Timbrell. Of course, any comparison of the two cases must also take account of the fact that the consequences of Mr Rubin's offence were significantly greater than the consequences in the case of Timbrell.

Lutumba

[21] Timbrell [56] (Buss JA, Hall J agreeing).

In Lutumba v The State of Western Australia,[22] the appellant deliberately crossed a double white line onto the incorrect side of a single carriageway in an attempt to overtake a truck which had reduced its speed. His vehicle collided head on with an oncoming vehicle resulting in the death of one passenger, grievous bodily harm to three other victims and bodily harm to another two victims. The appellant was driving contrary to his learner's permit and his vehicle was defective.
[22] Lutumba v The State of Western Australia [2013] WASCA 172.
In Lutumba, the appellant was sentenced to a total effective sentence of 6 years immediate imprisonment. On appeal, this court reduced the sentence to 4 years and 6 months imprisonment to be immediately served.
In my view, the circumstances of Lutumba and the sentences imposed are so removed from the circumstances of this case as to render comparison of little or no utility.

Ground 2 - conclusion

When account is taken of the differing levels of culpability and consequences in each of Gray and Timbrell, it cannot be concluded that the sentences imposed in those cases establish that the only type of sentence reasonably open to the sentencing judge in this case in the sound exercise of a discretionary judgment were sentences of suspended imprisonment. Sentences of that character were not imposed in Gray, and although sentences of that character were imposed on appeal in Timbrell, when account is taken of the differing levels of culpability and of the differing consequences in Timbrell as compared to this case, it cannot be said that sentences of suspended imprisonment were the only appropriate disposition available to the sentencing judge in this case. Further and in any event, a single case does not, of itself, establish a range, and there is no principle established by the reasons given by the majority in Timbrell which would necessarily result in terms of suspended imprisonment being the only type of sentence properly imposed in this case.

The sentencing judge gave express consideration to all relevant mitigating factors, but concluded that the consequences of the offences were 'just so serious' that suspended terms of imprisonment would not adequately reflect the seriousness of the offences committed. In my view, that conclusion was open to him. As terms of imprisonment to be served immediately were within the range of sentences available to the

sentencing judge in the exercise of a sound discretionary judgment, no implied error has been established. Ground 2 of the appeal should be dismissed.

Conclusion

This case presented difficult sentencing issues to the sentencing judge because of the disproportion between the level of culpability of the conduct constituting the offences, and the consequences of that conduct, viewed in the context of very powerful mitigating factors. This court can only intervene with the exercise of the discretion conferred upon the sentencing judge if error is established. Grounds 1 and 3 fail to establish any express error. Ground 2 fails to establish any implied error. For these reasons I joined in the dismissal of the appeal.
MAZZA JA: At the conclusion of the hearing of this appeal against sentence on 12 October 2015, I joined with Martin CJ and Hall J in dismissing it with reasons to be published.
I have had the considerable advantage of reading Martin CJ's reasons in draft. His Honour has set out all of the necessary background. I respectfully agree with his reasons in relation to grounds 1 and 3; however, I will express my own reasons with respect to ground 2.
The relevant legal principles applicable to this ground were explained by McLure P in Fogg v The State of Western Australia [2011] WASCA 11 as follows:
In the course of an exchange between bench and bar at the hearing of the appeal, an issue of principle emerged. Senior counsel for the State contended that the appellant had the onus of demonstrating that the trial judge had erred in imposing a term of immediate imprisonment. That is, the appellant had to demonstrate that a term of immediate imprisonment for the offences was unreasonable or unjust (manifestly excessive). The State contends this approach is consistent with the preservation of the sentencing discretion unless it is infected by error, express or implied. That object would be undermined says the State if the appellant's only task was to demonstrate that the option of suspension (conditional or otherwise) was reasonably open in all the circumstances of the case.
The difference in the formulation of the relevant question will only be material, in the sense of potentially affecting the outcome, if different types of sentence (in this case immediate imprisonment and suspension) could both be reasonably open.

That issue needs to be addressed against the backdrop of the statutory framework. Under s 6(4) of the Sentencing Act, a court must not impose a sentence of imprisonment unless it decides that the seriousness of the offence is such that only imprisonment can be justified or the protection of the community requires it. It was common cause in this case that the only appropriate sentencing option was a term of imprisonment.
Section 39(2) of the Sentencing Act sets out the sentencing options. The ultimate option is a term of immediate imprisonment and the two preceding it are conditional suspended imprisonment and suspended imprisonment respectively. Under s 39(3) a court must not use a sentencing option in subs (2) unless satisfied that it is not appropriate to use any of the options listed before that option. Thus, a sentencing judge has to be positively satisfied that suspension of the term of imprisonment is not appropriate before a term of immediate imprisonment can be imposed. The term 'appropriate' in its statutory context signifies the conclusion reached by the decision-maker after the exercise of the sentencing discretion. The concept of a discretion is explained by the High Court in Coal and Allied Operations v Australian Industrial Relations Commission (2000) 203 CLR 194. Gleeson CJ, Gaudron and Hayne JJ said:
'"Discretion" is a notion that "signifies a number of different legal concepts". In general terms, it refers to a decision‑making process in which "no one [consideration] and no combination of [considerations] is necessarily determinative of the result." Rather, the decision‑maker is allowed some latitude as to the choice of the decision to be made. The latitude may be considerable as, for example, where the relevant considerations are confined only by the subject matter and object of the legislation which confers the discretion. On the other hand, it may be quite narrow where, for example, the decision‑maker is required to make a particular decision if he or she forms a particular opinion or value judgment [19].'
Reasonable people may legitimately differ as to what is an appropriate sentence within the sound discretionary range. In some (limited) circumstances such as in borderline cases, different types of sentence may be reasonably open. That can be so even though the actual decision‑maker has to be positively satisfied that a lesser sentence is not appropriate.
In the absence of express error, the sentencing judge's latitude as to the choice of sentence is preserved from appellate intervention by the requirement that the outcome not be unreasonable or unjust. Thus the State is correct in its submission that the question for this court is whether the sentencing judge impliedly erred in concluding that a term of immediate imprisonment was the appropriate sentencing option [5] ‑ [10].

Ground 2 is an allegation of implied error. In my opinion, the learned sentencing judge did not err in concluding that terms of immediate imprisonment were the appropriate sentencing option.
The focus of the appellant's submissions in support of ground 2 was on the level of the appellant's culpability. In oral submissions, the appellant's counsel asserted 'It's difficult to envisage a case where the culpability would be lower' (ts 12).
While it is true that the appellant's culpability was not aggravated by such matters as excessive speed, deliberate dangerous driving or the ingestion of illicit drugs or alcohol, his driving nevertheless represented a significant departure from the standards expected of a reasonable driver. The appellant failed to see no less than four signs which warned him that the dual carriageway on which he was travelling was merging into a single carriageway. Further, he failed to note the change in the road markings which conveyed that he was no longer driving on a dual carriageway. The appellant's failure to see these things speaks of a high degree of inattentiveness which was more than merely momentary. His culpability was greater than the offender in Timbrell v The State of Western Australia [No 2] [2013] WASCA 269; (2013) 240 A Crim R 1, although less than the offender in Lutumba v The State of Western Australia [2013] WASCA 172.
The consequences of the appellant's driving have been horrendous. Two lives have been lost and four people were injured, three of them very seriously.
The mitigating circumstances were not in dispute. The appellant has impeccable antecedents. He is genuinely remorseful. He cooperated with the police. He is racked with guilt as a result of his actions. His family has been torn apart and his life is in ruins. The appellant himself sustained serious physical injuries from the collision. The appellant poses no risk of reoffending. He pleaded guilty on the fast‑track system.
The task faced by his Honour was unenviable. On the one hand, there were many mitigating factors; on the other hand, his Honour had to weigh the culpability of the appellant's driving and its horrendous consequences. An additional factor which his Honour took into account, and which cannot be ignored, is the need for general deterrence.
Having considered all of the relevant circumstances, I have not been persuaded that the imposition of immediate terms of imprisonment was

unreasonable or plainly unjust. As no implied error has been demonstrated, this court's power to intervene has not been enlivened.

HALL J: I agree with the reasons of the Chief Justice, which reflect my own reasons for joining in the decision to dismiss this appeal.