Smith v The State of Western Australia - [2022] WASCA 170

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   SMITH -v- THE STATE OF WESTERN AUSTRALIA [2022] WASCA 170
CORAM:   BUSS P
MITCHELL JA
VAUGHAN JA

HEARD:   19 AUGUST 2022
DELIVERED          :   16 DECEMBER 2022
FILE NO/S:   CACR 133 of 2021
BETWEEN:   ROSS MICHAEL SMITH
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   GOETZE AUX DCJ
File Number            :   IND 2199 of 2020

Catchwords:

Criminal law - Appeal against sentence - Appellant convicted on his plea of guilty of one count of dangerous driving occasioning death - Appellant sentenced to 3 years' 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	:	DG Price & Co
Respondent	:	Director of Public Prosecutions (WA)

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

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
Lutumba v The State of Western Australia [2013] WASCA 172
Rhodes v The State of Western Australia [2022] WASCA 168
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 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, on his plea of guilty, of one count in an indictment. The count alleged, in essence, that on 10 February 2020, at Bateman, the appellant drove a Toyota Hilux motor vehicle, which was involved in an incident occasioning the death of Katie Robin Sorensen, 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 any person, contrary to s 59(1)(b) of the Road Traffic Act1974 (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 2 September 2021, Goetze AUX DCJ sentenced the appellant to 3 years' 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 2 years.
The appellant has appealed against the sentence of imprisonment but not against the period of disqualification.
The appellant relied upon two grounds of appeal. Ground 1 alleged that the sentence of 3 years' immediate imprisonment was manifestly excessive as to type. On 5 January 2022, Buss P and Beech JA refused leave to appeal on that ground. The remaining ground (ground 2) alleges that the length of the term of immediate imprisonment imposed by his Honour was manifestly excessive. On 5 January 2022, Buss P and Beech JA referred the application for leave to appeal on ground 2 to the hearing of the appeal.
Ground 2 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 sentencing judge's sentencing remarks and the appellant's personal circumstances

The facts and circumstances of the offending were as follows.
On the morning of 10 February 2020, Mrs Sorensen was driving a Mitsubishi Outlander motor vehicle north on Kwinana Freeway in Bateman. She was the sole occupant of the vehicle. The weather was fine, the road was dry and the visibility was good. The traffic on the freeway was built up in some places and more free‑flowing in others.
As Mrs Sorensen drove past Murdoch train station, she was in the median lane (closest to the railway line). The speed limit on that section of the freeway was 80 km per hour because roadworks were being carried out in the area. The 80 km per hour speed limit had applied for several months.
Shortly after passing Murdoch train station and the South Street overpass, Mrs Sorensen slowed her vehicle because the traffic ahead of her had slowed. The traffic in Mrs Sorensen's lane slowed to such an extent that within a few hundred metres past the train station, Mrs Sorensen's vehicle was stationary, behind other vehicles.
Mrs Sorensen's vehicle had been stationary for about 12 seconds, when a Toyota Hilux dual cab motor vehicle with a bull bar, driven by the appellant, collided with the back of Mrs Sorensen's vehicle. At the time of the collision, the appellant's vehicle was travelling at 88 km per hour. Mrs Sorensen's vehicle was shunted into the rear of a Toyota Tarago motor vehicle, which had also been stationary in front of Mrs Sorensen's vehicle. Mrs Sorensen died from injuries she sustained in the collision.
The appellant entered Kwinana Freeway from Armadale Road, about 4.5 km south of the accident site. As the appellant drove north on the freeway, several drivers or passengers in other vehicles noticed the appellant's vehicle because of its speed and the manner in which it was being driven.
As the appellant approached the South Street overpass, he drove his vehicle very close to the rear of a vehicle being driven by Bruno Baiamonte. Mr Baiamonte was travelling in the centre lane at 80 km per hour. A passenger in Mr Baiamonte's vehicle saw that the appellant was making hand gestures. The appellant then moved his vehicle to the median lane and accelerated past Mr Baiamonte's vehicle.
Next, the appellant drove his vehicle very close to the rear of a vehicle being driven by Diana Gilbert. Ms Gilbert's attention was drawn to the appellant's vehicle because of the speed at which it approached her vehicle. Ms Gilbert was travelling in the median lane at 80 km per hour. When she noticed the speed at which the appellant's vehicle was approaching, Ms Gilbert indicated her intention to move to the centre lane. However, as the appellant's vehicle reached Ms Gilbert's vehicle, the appellant moved to the centre lane, accelerated past Ms Gilbert's vehicle and then returned to the median lane.
The appellant then drove his vehicle very close to the rear of a vehicle being driven by Jean Speed. Mrs Speed was travelling in the median lane at 70 to 80 km per hour. As she passed the South Street overpass, Mrs Speed noticed that the appellant's vehicle was travelling at a much higher speed than her vehicle. Mrs Speed moved her vehicle to the centre lane.
CCTV footage taken from a camera at Murdoch train station showed Mrs Sorensen's vehicle slow down and become stationary or almost stationary at 8:54:14 am. The appellant's vehicle comes into view at 8:54:13 am and appears to be driven without deceleration and without the brake lights illuminating until shortly before the appellant's vehicle collides with Mrs Sorensen's vehicle at 8:54:28 am. For at least 12 seconds Mrs Sorensen's vehicle was stationary in the same lane as the appellant's vehicle, with no vehicles between them. The CCTV footage also shows that the vehicles in the centre and left lanes had slowed significantly in the area adjacent to the point where Mrs Sorensen's vehicle was stationary.
The appellant's airbag did not deploy as a result of the collision. However, the airbag did register a 'trigger event', namely the collision. Police captured and downloaded data for the five second period leading up to the trigger event. That data revealed that:
(a)At 4.85 seconds before the collision, the appellant's vehicle was travelling at 95 km per hour and the brake switch was not activated.
(b)At 1.85 seconds before the collision, the appellant's vehicle was travelling at 92 km per hour and the brake switch was recorded as being 'on'. However, deceleration at that point was 'low', which indicated only moderate braking. Steering input at that point was minimal.
(c)At 0 seconds (that is, upon the occurrence of the trigger event) the appellant's vehicle was travelling at 88 km per hour.
The appellant told witnesses at the scene of the collision that before the collision he had been looking over his left shoulder with a view to moving from the median lane to the centre lane. When interviewed by police on the day of the collision, the appellant claimed that he had been looking over his left shoulder with a view to changing lanes and that when he then looked to the front the collision occurred. The appellant admitted to police that he knew the speed limit in the area was 80 km per hour and that he had driven frequently on that part of the freeway. The appellant claimed during the interview with police that he had not been driving in excess of the speed limit.
The sentencing judge recounted in his sentencing remarks the facts and circumstances of the offending.
His Honour made the following findings:
(a)The appellant's behaviour in relation to Mr Baiamonte, Ms Gilbert and Mrs Speed involved 'selfish disregard for other road users' (ts 50).
(b)The appellant failed to keep a proper lookout 'for what the vehicles in front of [him] were doing, including Mrs Sorensen' (ts 49). The appellant failed to brake until 'a moment before impact and [he] had been speeding from 95 down to 88 at impact' (ts 49 ‑ 50). The failure to keep a proper lookout, the failure to brake and the speeding happened after the incidents with Mr Baiamonte, Ms Gilbert and Mrs Speed.
(c)The appellant's offending did not involve mere momentary inattention, inadvertence or undue care.
(d)The collision occurred as a result of the speed at which the appellant's vehicle was travelling, the appellant's failure to notice what was happening on the freeway and the appellant's failure to brake.
The appellant was aged 32 at the time of the offence and was 33 when sentenced.
The appellant had been in a relationship with his partner for seven years at the time of sentencing. It was a good relationship. Unfortunately, his partner had been diagnosed with cancer and required treatment. Expert reports before his Honour indicated that the appellant's partner was now free from all detectable cancer. She had been referred for chemotherapy and radiotherapy. There was a 5‑10% chance of a recurrence of the cancer within the next ten years.
The appellant does not have any children.
The appellant reached but did not complete year 12 at school. He has attention deficit hyperactivity disorder. The appellant has struggled to find work. However, he has been employed as a trade assistant in the mining industry. During the five year period before he was sentenced the appellant had been a fly‑in/fly‑out rigger at various locations in Western Australia.
The sentencing judge made these observations about the appellant's use of alcohol and illicit substances (ts 52):
Now, you've used cannabis and alcohol from 16, methylamphetamine from 18, together with ecstasy. [Defence counsel] says that was recreational use only. I'll accept that. You've not used for 10 years, since you've really been involved in a relationship, which shows the positive nature of that relationship.
The appellant is in good physical health. However, he has suffered from anxiety and depression for most of his life. The appellant has taken medication for those conditions. Counselling has helped the appellant deal with thoughts of self‑harm since the offending occurred. The collision and its consequences, together with his partner's illness, have caused the appellant to suffer emotionally.
The appellant has a prior criminal record. He has numerous previous convictions for traffic offences. However, all of the previous offending occurred in or before 2012. The appellant has not previously been sentenced to a term of imprisonment.
The information before his Honour included a report dated 23 August 2021 from Dr Leonie Coxon, a clinical and forensic psychologist, and a pre‑sentence report dated 1 June 2021. His Honour referred to those and other reports in his sentencing remarks. His Honour said it was apparent that the appellant needed specialist intervention to address his psychological and emotional issues associated with the consequences of his offending and his past trauma. The appellant had received therapy from Dr Coxon on six occasions before the date of Dr Coxon's report. He had continued to receive treatment from her.
The sentencing judge noted that the appellant had accepted responsibility for his offending and that the appellant was aware of the significant impact Mrs Sorensen's death has had on her family and friends. His Honour also noted that the appellant had written a letter to Mrs Sorensen's family expressing his sympathy, regret and remorse. His Honour considered that the appellant was at a low risk of reoffending and that he was 'a good candidate for rehabilitation' (ts 53).
His Honour mentioned 12 character references in relation to the appellant. The references spoke well of the appellant. He was a community and family‑minded person who had changed his life since the collision.
The sentencing judge took into account the appellant's early plea of guilty, for which his Honour allowed a discount of 20% pursuant to s 9AA of the Sentencing Act 1995 (WA). His Honour also took into account the appellant's cooperation with the police.
His Honour referred to the significant and ongoing grief that has been suffered by Mrs Sorensen's family consequent upon her death.
The sentencing judge said the appellant had not committed any further offences since the collision. He had support from his family and in the community. The appellant had continued to work.
His Honour was positively satisfied that the only appropriate sentencing disposition was a term of immediate imprisonment.

The appellant's submissions on the remaining ground of appeal

Counsel for the appellant submitted that the sentence of 3 years' immediate imprisonment was, in the circumstances, manifestly excessive as to length.
It was submitted, in essence, that, having regard to the appellant's early plea of guilty, his personal circumstances and antecedents, the nature and extent of the criminality involved in the offending, and the sentences imposed in broadly comparable cases, the length of the term of imprisonment was unreasonable or plainly unjust.

The State's submissions on the remaining ground of appeal

Counsel for the State submitted, in essence, that, having regard to all relevant facts and circumstances and all relevant sentencing factors, the sentence of 3 years' immediate imprisonment was appropriate. No error on the part of the sentencing judge should be inferred.

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 sentencing 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.
Relevant general sentencing principles are set out in Rhodes v The State of Western Australia.[1]
[1] Rhodes v The State of Western Australia [2022] WASCA 168 [31] ‑ [37] (Buss P, Mitchell & Vaughan JJA).
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;[2] Timbrell v The State of Western Australia [No 2];[3] Kershaw v The State of Western Australia;[4] Gray v The State of Western Australia;[5] Rubin v The State of Western Australia;[6] Kirby v The State of Western Australia;[7] The State of Western Australia v Murray;[8] De Pledge v The State of Western Australia;[9] and Rhodes. 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.
[2] Lutumba v The State of Western Australia [2013] WASCA 172.
[3] Timbrell v The State of Western Australia [No 2] [2013] WASCA 269; (2013) 240 A Crim R 1.
[4] Kershaw v The State of Western Australia [2014] WASCA 111; (2014) 66 MVR 551.
[5] Gray v The State of Western Australia [2015] WASCA 108; (2015) 71 MVR 31.
[6] Rubin v The State of Western Australia [2016] WASCA 2; (2016) 75 MVR 274.
[7] Kirby v The State of Western Australia [2016] WASCA 199; (2016) 78 MVR 380.
[8] The State of Western Australia v Murray [2020] WASCA 190; (2020) 94 MVR 426.
[9] 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;[10] Billing v The State of Western Australia.[11]
[10] The State of Western Australia v Butler [2009] WASCA 110 [7] (Wheeler JA; Pullin JA agreeing).
[11] 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 offence committed by the appellant involved serious offending of its kind.
The appellant's interaction with Mr Baiamonte, Ms Gilbert and Mrs Speed is part of the context in which his moral culpability for the offending must be assessed. The appellant was driving a vehicle of significant size and weight. The vehicle was fitted with a bull bar. The appellant's driving in relation to Mr Baiamonte, Ms Gilbert and Mrs Speed was aggressive. He drove in excess of the speed limit and dangerously close to their vehicles. On an objective appraisal, the apparent object of this behaviour was to induce the other drivers to change lanes so as to enable him to continue driving in excess of the speed limit. As the sentencing judge found, the appellant's behaviour towards Mr Baiamonte, Ms Gilbert and Mrs Speed involved selfish disregard for other road users.
The appellant's driving behaviour in relation to Mrs Sorensen and her vehicle was dangerous in that:
(a)The appellant failed to keep a proper lookout in relation to the vehicles in front of him despite the weather being fine, the road being dry and the visibility being good. The appellant had driven frequently on that part of the Kwinana Freeway. If the appellant had been keeping a proper lookout he would have had a clear view of Mrs Sorensen's stationary vehicle for at least 12 seconds before the collision. Even if the appellant had looked over his shoulder to check whether it was safe for him to change lanes, there would have been more than ample opportunity for the appellant, had he been keeping a proper lookout, to have appreciated that Mrs Sorsensen's vehicle was stationary and to have avoided the collision.
(b)The appellant was travelling at about 15 km per hour in excess of the speed limit of 80 km per hour. The extent to which the appellant exceeded the limit was, in the circumstances, significant. The speed limit had been reduced from the limit that ordinarily applied because of roadworks. The appellant knew that the applicable speed limit was 80 km per hour. As his Honour found, the appellant failed to brake until 'a moment before impact' (ts 49). His vehicle was travelling at 88 km per hour when it collided with Mrs Sorensen's vehicle.
(c)We have viewed the CCTV footage taken from Murdoch train station. The footage depicts the collision and the traffic flow leading up to the collision. The volume of traffic within the roadworks zone required the exercise of particular care to maintain a proper lookout and not to exceed the applicable speed limit.
It is notorious that traffic on the Kwinana Freeway will on occasions be unable to travel at or close to the speed limit and that traffic will sometimes slow down significantly and become stationary. These features underscore the dangerousness of failing to keep a proper lookout and of speeding on the freeway. The dangerousness will ordinarily be exacerbated in the case of a person who is driving a large and heavy vehicle.
There was, of course, some mitigation. The appellant had the benefit of an early plea of guilty, for which he received a discount of 20% pursuant to s 9AA of the Sentencing Act. He accepted responsibility for his offending and was remorseful. The appellant had embarked upon psychotherapy for the treatment of his mental health issues. He has good support from his family and in the community, and good prospects of rehabilitation.
The appellant had numerous previous convictions for traffic offences but none of them was recent.
We are of the opinion, after evaluating all relevant facts and circumstances and all relevant sentencing factors, that the sentence of 3 years' immediate imprisonment was commensurate with the seriousness of the appellant's offence.
The length of the sentence was not unreasonable or plainly unjust having regard to:
(a)the maximum penalty;
(b)the facts and circumstances of the offence;
(c)the seriousness of the offending (including the vulnerability of Mrs Sorensen);
(d)the general pattern of sentencing for offences of this kind;
(e)the importance of general deterrence and the protection of vulnerable members of the public in motor vehicles on public roads;
(f)the impact of the offending on Mrs Sorensen's family and friends; and
(g)all mitigating factors referred to by the sentencing judge.
We are satisfied that the sentence is not manifestly excessive.
Ground 2 has not been made out.

Conclusion

Ground 2 did not have a reasonable prospect of success. Leave to appeal should be refused and 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