Shelley v Traynor - [2008] WASC 277

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: SHELLEY -v- TRAYNOR [2008] WASC 277

CORAM: McKECHNIE J

HEARD: 13 NOVEMBER 2008

DELIVERED : 13 NOVEMBER 2008

FILE NO/S: SJA 1090 of 2008

BETWEEN: STEVEN JOHN SHELLEY
Appellant
AND
KIM JOHN TRAYNOR
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE J G MUSK
File No  :FR 12304 of 2008, FR 12305 of 2008

Catchwords:

Road Traffic - Dangerous driving causing grievous bodily harm - Sentence of immediate imprisonment

Legislation:

Nil

Result:

Leave to appeal refused

Category: D

Representation:

Counsel:

Appellant: Mr A D Wilson
Respondent: Mr J G Nicholls

Solicitors:

Appellant: Frichot & Frichot
Respondent: Director of Public Prosecutions (WA)

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

Ainsworth v D (a child) (1992) 7 WAR 102
Dinsdale v The Queen (2000) 202 CLR 321
English (1995) 82 A Crim R 586
Logan v Kuser [2008] WASC 650
Lowndes v The Queen (1999) 195 CLR 665
Samuels v Western Australia (2005) 30 WAR 473

McKECHNIE J: I have had the advantage of submissions from the appellant for some time, including all the material that was before the magistrate, the pre‑sentence report, the personal references, the letters written by the appellant to the people in the other vehicle, the transcript of the hearing below, and so I am in a position to deal with this matter today.
Shortly after 6.30 am on the morning of Good Friday, 21 March 2008, the appellant, then aged 23, was driving his vehicle at excessive speed in a westerly direction along South Street, Bull Creek, towards a set of traffic lights on the freeway overpass. The lights were red against him.
At the same time a Nissan Pulsar was travelling south along the off‑ramp and had negotiated a right‑hand turn into South Street to continue westbound. The appellant entered the intersection at an excessive speed, against a red traffic control light, and collided with the rear of the Pulsar, shunting it forward.
The appellant had been observed shortly prior to the crash by a police officer who estimated the appellant's speed at between 140 and 150 kilometres per hour in a 70 kilometre per hour zone. The appellant had a blood alcohol reading of .183.
The driver of the Pulsar and her passenger, who was her brother, were rendered unconscious and trapped in the vehicle, until extracted by fire and rescue officers, and taken to hospital. The driver received serious injuries, fractures of her cervical spine and pelvis. The passenger received a fracture of the CT spine, a ligament injury, cuts and abrasions. Needless to say, both vehicles were extensively damaged. The appellant was also seriously injured in the accident, receiving a fractured jaw which had pins and a plate inserted.
In due course, the appellant was charged with two counts of dangerous driving occasioning grievous bodily harm and one count of driving under the influence of alcohol. He pleaded guilty at the first available opportunity on 9 September 2008. He was remanded so that the magistrate could obtain a pre‑sentence report which she did.
The appellant again appeared on 7 October 2008 for sentence. The magistrate was assisted by written sentencing submissions on the appellant's behalf, victim impact statements, references and the letters the appellant had written together with the oral submissions ably and comprehensively advanced by counsel.
The appellant was unable to offer any explanation for the offences. His last memory was playing computer games at about 1.00 am or 2.00 am with a friend. He did not know why he decided to drive or where he was going but the route would probably have taken him to the house that he shared with his girlfriend.
In the course of submissions before the magistrate counsel referred to the possibility of a suspended sentence and cited Dinsdale v The Queen (2000) 202 CLR 321. He also referred to the mitigatory effect of youth by reference to English (1995) 82 A Crim R 586 and Logan v Kuser [2008] WASC 650, submitting that there was nothing that would suggest a suspended term of imprisonment was inappropriate.
The magistrate dealt with the issue of seriousness of the offence as follows:
I am here to deal with these criminal charges, and in respect of the two most serious charges, the two aspects that I have to look at is the level of seriousness of the dangerousness of your driving, if you like to put it that way, and then the level of seriousness of the consequences. They can - they are usually divided into three categories at law. There can be people who suffer bodily harm; they are injuries from which people recover fully. Then there is grievous bodily harm, which are far more serious, and of course ultimately there is the third most serious category of death.
Now, it could well have been the case that one or both of these people could have died in this crash. They didn't, which is fortunate for everybody, but they have suffered extremely serious bodily harm. So both the level of culpability or seriousness of your driving is up at the high level of seriousness, and the consequences to not just one but two people in another car, two innocent people going about their business in another vehicle at 6.30 am, are also extremely serious. (t/s 14)
She recognised that personal deterrence was unnecessary and she said:
I am convinced that from your point of view you are extremely remorseful and the likelihood of you becoming involved in this kind of activity again is extremely low, because if you didn't learn from this experience you never will, and I'm sure you have, because I have these character references before me to indicate this is out of character and it's a horrific experience for everybody involved in it, not just the two victims but yourself. But there are other sentencing principles to which I need to have regard, and one of them is general deterrence. (t/s 14)
She then expanded on the need for general deterrence by saying:
That means that other people out there have to be reminded constantly if they take the risk of driving and speeding and running red lights and run into the rear of a vehicle where innocent people, as a result of their dangerous driving, suffer serious injuries, then the likelihood is that they will go to prison, and in my view in this case imprisonment is justified because of the level of seriousness not only of your driving but the consequences of the two victims. I don't believe that in these circumstances suspended imprisonment is justified. (t/s 14).
The magistrate ultimately took into account mitigating factors in a way I will refer to shortly, and adjusted the sentence by reason of the transitional provisions by stating that the maximum term of imprisonment is 3 years and after taking into account all the mitigating factors, she considered a sentence of 15 months was an appropriate starting point, which was reduced by law by one‑third to a period of 10 months' imprisonment on each of the grievous bodily harm charges which were made concurrent.
She imposed a disqualification period of 3 years and a fine of $1,000 for driving under the influence of alcohol, that fine not being the subject of appeal.
The appellant seeks leave to appeal and if leave is granted, seeks bail. If leave is granted, no issue about bail would arise as bail would follow.
The grounds of appeal may be summarised as follows:

Ground 1

In failing to direct herself whether a sentence of immediate imprisonment was the only appropriate sentence and should have found that suspending the sentence was not inappropriate.

Ground 2

The magistrate decided a suspended sentence was not justified when the correct test required her to decide that a suspended sentence was definitely inappropriate.

Ground 3

The magistrate failed to give adequate reasons for why she was satisfied no sentencing option other than immediate imprisonment was appropriate as required by s 35 of the Sentencing Act 1995 (WA).
This is an error of law or said to be an error of law because a magistrate under s 35 is required to give written reasons when a sentence less than 12 months is imposed.

Ground 4

Ground 4 as amended is that the learned magistrate failed to give sufficient weight to the personal factors of the appellant which I will come to in a moment.
Those personal factors in ground 5 are that the learned magistrate failed to state whether the appellant's sentence was reduced by any mitigating factors, particularly his early plea of guilty and, if so, the extent of that reduction as required by s 84 of the Sentencing Act and thereby manifested an error of law.
By the Criminal Appeals Act 2004 (WA) s 9(1), leave is required for each ground and the Court must not give leave on a ground of appeal unless it is satisfied that the ground has a reasonable prospect of succeeding.
That latter principle is explained in the case of Samuels v Western Australia (2005) 30 WAR 473, particularly at [55] and [56].
With this test in mind I turn to the grounds to see whether any or all of them have reasonable prospects of success.

Ground 1

Ground 1 is particularised and the particulars are the same as those in ground 4 as follows:
(1)the appellant was youthful, 24 years of age;
(2)the offender had no prior convictions;
(3)the offender had not previously had the benefit of a suspended sentence;
(4)the offender had pleaded guilty at the first available opportunity;
(5)the offender was suitable for a community based sanction with a requirement to attend a drug and alcohol program;
(6)the offender was suitable for suspended imprisonment with a program requirement.
The latter two matters reflect the pre‑sentence report. The particulars focus attention entirely on the personal circumstances of the offender and they are important, but a magistrate when sentencing must take account of other matters, including the seriousness of the offence and principles of general deterrence and punishment.
One submission made on the appellant's behalf this morning, taken from the written submissions is:
The learned Magistrate incorrectly and impermissibly characterised 'the seriousness of the offence' by reference to 'the level of seriousness of the consequences' and relied on both to conclude that imprisonment was justified, apparently as a result of the application of the principle of general deterrence. Undoubtedly the offending was serious but the Learned Magistrate has erred in deciding that only a sentence of immediate imprisonment was justified by reference to the consequences of the offending.
There are no authorities cited for this proposition. On the other hand, the respondent has drawn my attention to Ainsworth v D (a child) (1992) 7 WAR 102. In the course of his judgment, Malcolm CJ said:
The dangerous driving offence of which the respondent was convicted has two elements. The first is the dangerous driving. The second is the causing of grievous bodily harm. Consequently, the seriousness of the offence is to be measured both in terms of the manner of driving and the degree of harm caused to the victim.
It is in any event explicit under the Road Traffic Act 1974 (WA) that differentiates between dangerous driving causing death or grievous bodily harm and dangerous driving causing bodily harm and is, with respect, commonsense to take into account as one of the factors the consequences of a criminal act. The magistrate did but, in any event, she took into account not only the consequences but the seriousness of the driving which on any measure was extreme. The appellant, heavily intoxicated, drove at great speed through a red light into an oncoming vehicle.
Some crimes are so serious that only a sentence of immediate imprisonment is appropriate notwithstanding the circumstances of the offender and all the mitigating features that may be attracted.
Mitigating features and the lack of need of personal deterrence can be and I consider in this case were encompassed in setting the length of the term of imprisonment. This is explicit because the magistrate said at page 15 having said that imprisonment immediately to be served was what she was going to impose:
Therefore, I have to determine how long that sentence of imprisonment should be. Certainly, the matters can be dealt with in this jurisdiction and I have to have regard to all the mitigating factors that are personal to you. You are a young man, first offence, early plea of guilty, truly remorseful, and all of that goes in your favour. I also have to -
and then she mentioned the transitional provisions. She said:
In my view, given all those mitigating factors, 15 months is an appropriate starting point.
In other words, in this case the magistrate did take account of all the mitigating factors and she took account of them in setting the length of the sentence. Whether such a sentence is appropriate is a matter for discretion for a sentencing judicial officer: Lowndes v The Queen (1999) 195 CLR 665.
In relation to ground 1, I am of opinion that there are no reasonable prospects of success because, in my view, it was open to the magistrate on the facts to conclude that a sentence of immediate imprisonment was the only appropriate sentence notwithstanding the mitigating features of the case.

Ground 2

The magistrate, a very experienced sentencing magistrate, had, as I have said, written submissions and oral submissions seeking to persuade her to suspend the sentence if she came to the view that imprisonment was the only appropriate disposition.
It was obviously a live issue. The prosecutor responded to it. It was clearly an issue to which she gave consideration. I do not consider she made the error contended for in ground 2. If, as I conclude she did, she reached the conclusion that only sentence of imprisonment immediately served was appropriate, it follows that any other sentence was inappropriate. I do not consider, as was submitted this morning, the correct approach was reversed. In my view, she clearly gave proper consideration to suspending the sentence.
It is, of course, the case that a suspended sentence does have significant deterrent value but it is also the case that a sentence of immediate imprisonment does. The selection between the two, taking into account all factors, is a matter of judicial discretion and I am not persuaded there are any reasonable prospects of succeeding in ground 2 on the asserted error.

Ground 3

There is an interesting question which I raised as to whether ground 3 as expressed is a proper ground of appeal. If a court fails to comply with the Sentencing Act s 35 requirement in proceedings, the failure does not invalidate the sentence although rights of appeal are in fact reserved, s 145.
The absence of reasons as required under s 35 might more readily lead to the conclusion that error is demonstrated. That is generally the case if there is an absence of reasons about anything.
In this case the magistrate said (at t/s 14) why she took the view that imprisonment was justified. I am satisfied that she did in brief terms explain not only why immediate imprisonment was appropriate but also why she selected the length of sentence. I do not consider there are reasonable prospects of success in relation to ground 3.

Ground 4

Ground 4 is in a sense linked with ground 1 but, as counsel submits, the real substance in the appeal is said to be in grounds 4 and 5. Ground 4 is always a difficult ground to succeed on because the question of weight is principally for the sentencing judicial officer.
Of course, a court will intervene if there is a manifest error of law, and a manifest error is often a conclusion, but giving sufficient weight when the magistrate clearly said she was giving weight to those factors is not an easy ground to make good.
In this case, in my view, there are no reasonable prospects of succeeding in showing that there was a failure to give sufficient weight to the personal factors of the appellant which were clearly before the magistrate and which she expressly mentioned. The nature of the weight to be given to those factors, balanced against the principles of general deterrence, were matters for her.

Ground 5

Contrary to the ground of appeal, the Sentencing Act s 8(4) and indeed s 8(2) do not require the extent of the reduction to be stated; simply, the fact that a sentence has been reduced because of a mitigating factor.
There is no material before me that enables me to accept a submission that this was a mere incantation by the magistrate of the mitigating circumstances. She referred to youth, the record several times, and the plea of guilty several times. She detailed the mitigating factors, as I have earlier outlined and said:
Given all of those, 15 months is an appropriate starting point.
Effectively what she did was take into account all the competing and complementary factors required to be taken into account and to sentence and synthesise an appropriate result.
There might be much to be said for a explicit two‑stage process. The fact is that there is High Court and Court of Appeal authority that the approach taken in this case by the magistrate was not erroneous.
I consider there are no reasonable prospects of success either in relation to ground 5 or in relation to the appeal in general.

Conclusion

I conclude that having regard to the seriousness of the offending, the magistrate's decision was not only open but was correct. Therefore, leave to appeal will be refused and the question of bail does not arise.