Taylor v The State of Western Australia
[2007] WASCA 218
•19 OCTOBER 2007
TAYLOR -v- THE STATE OF WESTERN AUSTRALIA [2007] WASCA 218
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2007] WASCA 218 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:164/2006 | 13 SEPTEMBER 2007 | |
| Coram: | OWEN JA WHEELER JA MILLER JA | 19/10/07 | |
| 17 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| D | |||
| PDF Version |
| Parties: | CHRISTOPHER JOHN TAYLOR THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law Sentencing Five counts of manslaughter Motor vehicle collision Five deaths Offender aged 19 years Travelling between 100 and 130 kilometres per hour in 70 kilometre per hour zone Travelling at 68 kilometres per hour when collision occurred Deceased driver coming from appellant's left Stopped at giveway sign then proceeded forward Stopped in middle of intersection Appellant affected by methylamphetamine and amphetamines Incapable of judging hazard Sentence of 8 years' imprisonment Whether excessive emphasis placed upon number of deaths Whether sufficient emphasis placed on matters personal to offender Whether totality principle infringed |
Legislation: | Road Traffic Code 1965 (WA), reg 601, reg 602 Road Traffic Code 2000 (WA), reg 3, reg 52 |
Case References: | Huriwai v The Queen (1994) 20 MVR 166 Jarvis v The Queen (1993) 20 WAR 201 Kay v The Queen [2004] WASCA 222; (2004) 147 A Crim R 401 Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 Penny v The State of Western Australia [2006] WASCA 173 R v Bangard [2005] VSCA 313; (2005) 13 VR 146 R v Snewin (1997) 190 LSJS 487 R v Wilkins (1988) 38 A Crim R 445 Sibley v Kais [1967] HCA 43; (1967) 118 CLR 424 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : TAYLOR -v- THE STATE OF WESTERN AUSTRALIA [2007] WASCA 218 CORAM : OWEN JA
- WHEELER JA
MILLER JA
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : McCANN DCJ
File No : IND 857 of 2005
Catchwords:
Criminal law - Sentencing - Five counts of manslaughter - Motor vehicle collision - Five deaths - Offender aged 19 years - Travelling between 100 and 130 kilometres per hour in 70 kilometre per hour zone - Travelling at 68 kilometres per hour when collision occurred - Deceased driver coming from
(Page 2)
appellant's left - Stopped at giveway sign then proceeded forward - Stopped in middle of intersection - Appellant affected by methylamphetamine and amphetamines - Incapable of judging hazard - Sentence of 8 years' imprisonment - Whether excessive emphasis placed upon number of deaths - Whether sufficient emphasis placed on matters personal to offender - Whether totality principle infringed
Legislation:
Road Traffic Code 1965 (WA), reg 601, reg 602
Road Traffic Code 2000 (WA), reg 3, reg 52
Result:
Appeal dismissed
Category: D
Representation:
Counsel:
Appellant : Mr T F Percy QC & Ms B J Lonsdale
Respondent : Ms J D Whitbread
Solicitors:
Appellant : Gibson & Gibson
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Huriwai v The Queen (1994) 20 MVR 166
Jarvis v The Queen (1993) 20 WAR 201
Kay v The Queen [2004] WASCA 222; (2004) 147 A Crim R 401
Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665
Penny v The State of Western Australia [2006] WASCA 173
R v Bangard [2005] VSCA 313; (2005) 13 VR 146
R v Snewin (1997) 190 LSJS 487
R v Wilkins (1988) 38 A Crim R 445
Sibley v Kais [1967] HCA 43; (1967) 118 CLR 424
(Page 3)
1 OWEN JA: I agree with the reasons to be delivered by Miller JA and with his Honour's conclusion that the appeal should be dismissed. There is nothing I can usefully add.
2 WHEELER JA: I agree with Miller JA.
3 MILLER JA: The appellant was charged with five counts of unlawful killing arising out of a motor vehicle collision in Mirrabooka on 25 September 2004. He appeared before McCann DCJ in the District Court at Perth on 20 November 2006 and pleaded guilty to all counts on the indictment. On 27 November 2006, he was sentenced to imprisonment for 4 years on each count on the indictment. The sentence on count 4 was ordered to be served cumulatively on the sentence on count 1, but all other sentences were to be served concurrently. The overall effective sentence was therefore 8 years' imprisonment. It was backdated to 20 November 2006. An order was made for eligibility for parole.
Appeal
4 The appellant was granted leave to appeal on 2 April 2007. There are two grounds of appeal which, with particulars, are as follows:
1. The Learned Sentencing Judge imposed a sentence which, in all of the circumstances, exceeded the range which was properly applicable, having regard to the level of seriousness of the offending and the circumstances of the particular case.
Particulars
1.1 In assessing the overall seriousness of the offence, The Learned Sentencing Judge failed to give adequate weight to the following factors:
(a) The five deaths were the product of a single and unintended incident;
(b) the victims' vehicle had failed to give way to the Appellant;
(c) the evidence that the victims' vehicle gave the appearance of being prepared to stop prior to entering the intersection;
(d) The evidence that the victims' vehicle stopped after entering the intersection;
- (e) the fact of the Appellant's youth and generally good antecedents.
- 2. The total effective sentence imposed on the applicant did not adequately reflect the totality principle and as a result was manifestly excessive in all of the circumstances of the case.
Particulars
- (a) None of the individual sentences imposed on each of the counts on which the applicant was convicted were in themselves excessive.
(b) By ordering count 4 to be served cumulatively, the Learned Sentencing Judge gave inadequate weight to the totality principle resulting in a sentence which was manifestly excessive.
a) Whilst the circumstances relating to the counts ordered to be served cumulatively would prima facie have justified some cumulation of the individual sentences, the totality principle required that only partial cumulation be ordered so as to achieve a sentence that was proportionate to the criminality of the offending.
5 On the evening of 25 September 2004, the appellant and friends left a house on Beach Road, Mirrabooka, to travel in an easterly direction along Beach Road. The appellant was the driver of a Holden Commodore sedan.
6 At or about the same time, Jani Henza Lumi (the deceased driver), two members of his family and two others left a house in Koondoola in the deceased driver's Nissan Pintara vehicle. They were travelling in company with another group of friends who were in a vehicle ahead of them. They proceeded along Butterworth Avenue towards Beach Road.
7 At the T-junction of Beach Road and Butterworth Avenue, there was a give-way sign. It was the deceased driver's intention to make a right-hand turn from Butterworth Avenue into Beach Road. The speed limit on Beach Road was 70 kilometres per hour and traffic travelling in Beach Road had the right of way. A vehicle approaching Beach Road from Butterworth Avenue was required by reg 52 of the Road Traffic Code 2000 (WA) (Code) to give way to a vehicle entering the intersection. A T-junction is within the definition of an intersection in reg 3 of the Code.
(Page 5)
8 The Nissan Pintara driven by the deceased driver stopped at the T-junction prior to making a right-hand turn into Beach Road. A number of witnesses saw or heard what then happened. There was varying evidence contained within the statements of the witnesses. Estimates between 70 and 130 kilometres per hour were made of the speed of the appellant's Holden Commodore as it proceeded east along Beach Road towards the T-junction. A resident of Pelham Way, located slightly to the east of the intersection, saw the appellant's Holden Commodore and said that it was travelling faster than any vehicle she had ever seen in Beach Road.
9 As the appellant came towards the junction of Beach Road and Butterworth Avenue, he had to negotiate a crest in Beach Road. On the left-hand verge of Beach Road there was a sign warning that a side street entered from the left. That side street was Butterworth Avenue. The distance from the sign to the left-hand lane of Butterworth Avenue which intersected Beach Road was approximately 130 metres. The distance to the crest itself was between 170 - 180 metres. Beach Road sloped down towards Butterworth Avenue giving a good view of the intersection. There was street lighting and visibility on the night was good. The road surface was dry.
10 As the appellant's vehicle came over the crest of Beach Road, a vehicle driven by Vesel Shala, a friend of the deceased driver and his family, stopped at the give-way sign in Butterworth Avenue. It then proceeded into the intersection to travel west on Beach Road. As Mr Shala crossed the east-bound lanes of Beach Road, he looked to his right and saw the appellant's motor vehicle on the crest of Beach Road. It appeared to him to have lights on high beam. He looked in his rear vision mirror and saw the deceased driver stop at the give-way sign in his Nissan Pintara. As Mr Shala reached the west-bound lanes of Beach Road, but before he reached the outside west-bound lane, he heard the sound of a collision.
11 It appears that the deceased driver first stopped at the give-way sign and then moved into the intersection. He then hesitated, presumably because he saw the appellant's vehicle approaching. Evidence established that the appellant's vehicle was travelling at a speed of at least 100 kilometres per hour when its wheels locked after the brakes had been applied. It must therefore have been travelling faster than 100 kilometres per hour before the brakes were applied. It struck the Nissan Pintara at a speed of not less than 68 kilometres per hour and forced it 21 metres sideways into the median strip on Beach Road. It tore open the whole
(Page 6)
- right-hand side of the Pintara and demolished it. All occupants were killed. The learned sentencing judge found that they must have been hit 'with appalling force'. This finding was clearly open on the evidence. Forensic evidence suggested that if the appellant had been driving at the speed limit of 70 kilometres per hour, he could have stopped in time to have avoided a collision with the deceased driver's vehicle. After the collision, the appellant was found to have amphetamine, methylamphetamine and traces of cannabis in his blood.
Sentencing
12 The learned sentencing judge concluded on the evidence that the appellant had been driving at a speed between 100 and 130 kilometres per hour as he approached the intersection of Beach Road and Butterworth Avenue. He fixed on a speed of not less than 110 kilometres per hour but up to 130 kilometres per hour. He noted that blood tests taken at 1.50 am on 26 September 2004 revealed that the appellant had 0.01 milligram per litre of amphetamine in his blood, 0.06 milligram per litre of methylamphetamine and traces of cannabis. The learned sentencing judge was not satisfied that the appellant was so affected by these substances as to be incapable of controlling his vehicle. However, he concluded that the appellant was motivated by the effect of the drugs to drive at speed and take risks, and had a diminished ability to assess risks and make safe judgments in hazardous situations.
13 The learned sentencing judge concluded that the collision was not caused by momentary inattention or by a single error of judgment, but was caused by reckless driving occasioned by speed and the intake of drugs.
14 The learned sentencing judge concluded that the deceased driver had stopped at the give-way sign and assessed that it was safe to cross Beach Road because at that time the appellant's vehicle was at the crest of Beach Road approximately 170 - 180 metres away. The learned sentencing judge found that the deceased driver was entitled to assume that the appellant was driving at or near 70 kilometres per hour and that it was therefore safe for him to enter the intersection. He further concluded that the deceased driver had hesitated as he entered the intersection because he realised that the appellant's vehicle was approaching at a speed much faster than he had thought. The collision occurred because the appellant was driving at an excessive speed and was too drug affected to be able to react in time to the hazard which faced him.
15 The learned sentencing judge found that at all material times, having reached the crest of Beach Road, the appellant had a clear vision of the
(Page 7)
- intersection. This was based upon the fact that his passengers had seen Mr Shala's vehicle cross Beach Road and had also seen the deceased driver's vehicle approach the intersection. The learned sentencing judge concluded that the risk of the deceased driver thinking he would not be obliged to give way to the appellant's vehicle was obvious, but the appellant in his condition could not and did not assess the risk of that happening or take it into account. He had not slowed down at all until it was far too late.
16 The learned sentencing judge noted that at the scene the appellant told police that the Nissan Pintara had 'cut in front' of him and he had tried to leave enough room to get past. He had said that he was only doing 80 kilometres per hour. Through his counsel he contended that he thought the deceased driver would give way to him but entered the intersection in front of him and at a time when he could not stop.
17 The learned sentencing judge concluded that whilst the appellant was physically capable of handling his vehicle, he was not capable of judging or handling the hazard that presented itself because of the combination of speed and the drugs that he had taken.
18 The learned sentencing judge then gave careful consideration to authorities and all relevant sentencing matters. He concluded (correctly) that there is no tariff for motor vehicle manslaughter cases and that a wide range of aggravating factors may affect sentences. He noted that youth, genuine remorse, acceptance of responsibility and rehabilitation are all relevant factors. He noted too, that the appellant's plea of guilty was a mitigating factor. He took account of the number of people killed in the collision, but said (correctly) that 'the number of people killed in a multiple fatality does not automatically increase the sentence by that number arithmetically'. It is, however, a factor in overall consideration of the case.
19 The learned sentencing judge saw three aggravating factors in the case. The first was that the appellant deliberately drove at a speed not less than 40 kilometres per hour above the speed limit, but perhaps up to 60 kilometres per hour above the limit. The second factor was that the appellant was under the influence of amphetamines which had been consumed only two hours prior to the collision. The third was that there were five fatalities occasioned by the collision. This was described as 'an appalling amount of death with the consequent grief, stress and pain to countless people … family … friends [and] emergency workers and others'.
(Page 8)
20 The learned sentencing judge noted that a number of aggravating factors present in the worst cases at the upper end of the sentencing range were missing in this case. He noted that alcohol was not involved. There was no evidence of fatigue. There was no police chase. There was no stolen vehicle. The appellant did not run away after the collision. He had not ignored traffic signals. He was not drag-racing. He was not on the incorrect side of the roadway. His antecedents were not bad. He was not on bail or parole at the time of the collision. He did not ignore pleas by passengers to slow down. His vehicle was not in a defective condition.
21 The learned sentencing judge's conclusion was, however, that the five crimes were at the upper end of the seriousness of motor vehicle manslaughter cases. Although they lacked some of the grossly dangerous indicia of criminally negligent driving, they had three very important factors: speed, the influence of amphetamines and the high number of fatalities.
22 The learned sentencing judge took full account of matters personal to the appellant. He noted his age, his family background, his employment history, his limited record for driving offences, his remorse and the fact that he had suffered financial loss. He noted that he was in a stable relationship and was no longer using drugs. The plea of guilty was taken into account, although it was described as weakened somewhat by its lateness.
23 In imposing sentence, the learned sentencing judge said that there was 'one outstanding feature' of the case which had to be reflected in the head sentence. That was the fact of five fatalities. Full account was taken of the totality principle and the learned sentencing judge recognised that the sentence to be imposed could not be crushing upon the appellant. Nevertheless, it needed to be a deterrent sentence and needed to mark the 'sheer seriousness of these five crimes'. Sentences of 4 years' imprisonment were then imposed on each count and accumulated to lead to an overall sentence of 8 years.
Appeal
Ground 1
24 This ground of appeal contends that the sentence exceeded the range properly applicable having regard to the seriousness of the offending and the circumstances of the case.
(Page 9)
25 Mr Percy QC, senior counsel for the appellant, contended that there were three primary reasons why the overall sentence was excessive. They were first, that undue emphasis was placed upon the number of deaths; second, that insufficient attention had been given to the fact that the deceased driver had failed to give way at the intersection and third, that insufficient weight had been placed upon the appellant's youth and generally good antecedents.
The number of deaths
26 In my opinion, the five fatalities in this case constituted a very significant factor in sentencing. Although the appellant contended that the learned sentencing judge had erred by giving 'primacy' to the number of fatalities, without giving sufficient weight to the fact that the deaths were the result of a 'single and unintended incident', I read the learned sentencing judge's observations as saying that it was but one of the aggravating factors. It is true that he said that there was 'one outstanding feature' of the case, but that observation needs to be read in the context of the whole of the reasons.
27 In Kay v The Queen [2004] WASCA 222; (2004) 147 A Crim R 401, I gave attention to the issue of multiple deaths in the context of a dangerous driving causing death/dangerous driving causing grievous bodily harm case. At [56], I made reference to what Lee CJ at CL had said in R v Wilkins (1988) 38 A Crim R 445 at 449 - 450. I adopted and followed the following passage:
Parliament has laid down in s 52A Crimes Act 1900 (NSW) that the maximum penalty for culpable driving involving driving in a manner dangerous and causing death is five years and it seems extraordinary at the outset that it can be said that, whether you kill one or whether you kill 50, the penalty is to be five years, provided you do it on the one occasion.
The reality on the situation surely is that drivers of all vehicles on the road must be taken to know that they can do enormous damage to life and limb if they drive irresponsibly, drive in a manner dangerous to the public.
The large vehicles which operate on the roads today - and the appellant's vehicle is in that class - are especially capable of producing enormous damage to human life if driven irresponsibly and it would be extraordinary that a driver, knowing that he may, if he gets himself onto the wrong side of the road on a main highway, kill one or four or ten or a dozen people or a bus full of people, can come before a Court and claim that he should be sentenced and kept in gaol in respect of the death of only one. To me that itself is demonstrative of the fact that the practice cannot be an inflexible practice and that it must give way to reason and commonsense. The
(Page 10)
- criminality and gravity of all the offences is not to be judged merely as if the appellant were charged under s 4(1) of the Motor Traffic Act 1909 (NSW) with dangerous driving. To mete out a penalty that recognises the actual consequences of his action is not unjust or unfair, indeed, it is wholly in accord with the ordinary principles of justice. Where the maximum penalty for any one offence is insufficient to reflect the gravity of the crime committed the court not only may but ought to impose cumulative sentences.
28 To the extent that anything said by Lee CJ at CL in R v Wilkins was in conflict with the observations of Olsson J and Williams J in R v Snewin (1997) 190 LSJS 487, I said (at [59]) that I preferred to follow the views of Lee CJ at CL.
29 In R v Snewin, there were observations to the effect that it should not be overlooked that the appellant in that case should be punished for his conduct in respect of one incident, and not in respect of six separate deaths. That is a conclusion that I cannot accept. I far prefer the approach of Lee CJ at CL. It would indeed be extraordinary if the maximum penalty that could be imposed in this case was governed by the fact that the five fatalities occurred in 'one transaction'.
30 My observations in Kay were agreed to by both Murray and Wheeler JJ. I see no reason why I should reach any different conclusion in this case. It follows that, in my view, the learned sentencing judge made no error of principle in concluding that the very high number of fatalities put the case at the upper end of the seriousness of motor vehicle manslaughter cases.
Failure to give way
31 The obligation of a driver approaching an intersection with a give-way sign to give way to a vehicle entering or approaching the intersection (Code reg 52) does not mean that in every situation a driver who enters an intersection and collides with a vehicle travelling from his right-hand side is to be considered either in breach of the regulations or at fault in terms of civil liability. The facts of every case have to be taken into account.
32 In the present case, the deceased driver stopped with the intention of giving way to traffic on Beach Road. As the learned sentencing judge found, he must have observed the appellant's vehicle but concluded that it was so far away from him that at a speed of 70 kilometres per hour (the speed limit for the area) there was ample time for the deceased driver to cross on to the west-bound carriageway of Beach Road. His error in this
(Page 11)
- conclusion was occasioned by the grossly reckless driving of the appellant who was travelling at a speed of not less than 40 kilometres per hour above the speed limit, but possibly as much as 60 kilometres per hour above it. That was such a high speed that any driver entering the intersection from Butterworth Avenue could be forgiven for failing to appreciate that a collision was imminent if he entered the intersection.
33 Mr Percy QC relied upon Sibley v Kais [1967] HCA 43; (1967) 118 CLR 424, where the High Court concluded that reg 601 and reg 602 of the Road Traffic Code 1965 (WA) were not definitive of the respective duties of drivers of vehicles. The court concluded that, generally speaking, reasonable care requires each driver as he approaches an intersection to have his vehicle so far in hand that he can bring it to a halt or otherwise avoid an impact should he find another vehicle approaching from his right or from his left in such a fashion that if both vehicles continue a collision might reasonably be expected. The judgment of Barwick CJ, McTiernan, Kitto, Taylor and Owen JJ makes it clear that however salutary the road traffic regulations might be, they do not determine the respective duties of drivers in terms of civil liability. The court used the memorable phrase that the ' "right hand rule" is not the be all and end all in relation to questions of civil responsibility' (at 427). I would, for myself, add that the 'right hand rule' or 'give way rule' (as it now is under reg 52 of the Code) is not the be all and end all in determining criminal responsibility for the crime of manslaughter in the context of the present case. In my view, the appellant was the one who caused the fatal collision. It was his reckless driving at high speed whilst affected by drugs that had the consequence that the deceased driver, having first obeyed the requirements of the Code, had no chance of avoiding a collision once he entered the intersection.
34 Reliance on the decision in Huriwai v The Queen (1994) 20 MVR 166 does not, in my view, assist the appellant. In that case, the appellant pleaded guilty to dangerous driving causing the death of one passenger and grievous bodily harm/bodily harm to others. The failure of a passenger killed or injured to wear a seatbelt was held to be a mitigating factor and the contributory negligence of another driver in contributing to an accident which resulted in death or injury was said to be a matter which ought to be taken into account in sentencing. Millhouse J (at 167) said that the failure of the deceased and other passengers to wear seatbelts favoured leniency towards the appellant. Perry J (at 169) said that the learned sentencing judge had been in error in exonerating the driver of the other vehicle involved in the collision. That driver had made an error of judgment in estimating the speed of approach of the appellant. Perry J concluded:
(Page 12)
- I have referred in detail to the passage of the vehicles after impact which tends to confirm that the appellant was travelling at a very high speed. He admitted to 85 km per hour in a 60 km per hour zone. But even allowing for that, it appears to me that the learned judge went too far in rejecting any suggestion that the driver of the Nissan was even partly to blame.
True it is that it was not the learned sentencing judge's responsibility in any relevant sense to apportion blame between the drivers of the vehicles. There can be no doubt that his excessive speed, coupled with the consequences of the appellant's drinking and consumption of marijuana, must lead to the conclusion that the appellant's driving was a cause, if not the substantial cause, of the collision and resultant injuries. But where, as in my opinion was the case here, the other driver was guilty of a not insignificant breach of the road traffic laws, that is a matter which ought to have been taken into account (169 - 170).
35 Contrary to the conclusion reached by Perry J in that case, I do not consider that in the present case the deceased driver's driving was a cause of the collision and the resultant deaths. I consider that the deceased driver made every effort to comply with the requirements of reg 52 of the Code and crossed on to Beach Road at a time when he had reasonable grounds for believing that he could do so with safety. Had the appellant's vehicle been travelling at anywhere near the speed limit for Beach Road, the manoeuvre could have been conducted with complete safety.
36 The deceased driver did, of course, have to factor into his decision to cross the road the possibility that the oncoming driver might be speeding, but it would be ridiculous to suggest that he could have foreseen that the approaching vehicle was travelling at anything like the speed it was. The ordinary course of traffic flow on suburban roads assumes that drivers will be travelling within or close to the speed limit for the area. There could be no sensible movement of traffic if every driver approaching an intersection had to weigh up the possibility that an approaching vehicle might be travelling at between 40 and 60 kilometres per hour above the speed limit. If these observations are in conflict with anything said by Perry J in Huriwai, I would decline to follow what his Honour there said.
37 I therefore consider that in the circumstances of this case the learned sentencing judge was correct to conclude that the appellant was entirely to blame for the collision in which the deceased driver and the others were killed.
Youth and antecedents
38 The learned sentencing judge took full account of the appellant's youth and his antecedents generally. They were factored into the
(Page 13)
- sentences imposed. The appellant initially conceded in the grounds of appeal that none of the individual sentences imposed on any count were in themselves excessive. That concession was withdrawn at the hearing, but, in my view, the original concession was correct. The question is accumulation of the sentences and the effect of the totality principle. Under no circumstances could it be said that a sentence of 4 years' imprisonment on each count in the present case was excessive. The sentences had regard to matters personal to the appellant. They were fully considered. There is no substance in the contention that they were not.
Sentences for manslaughter generally
39 Counsel for the appellant referred to a number of decisions in this court in which sentences in motor vehicle manslaughter cases have been considered. He submitted that a sentence of 8 years' imprisonment was equivalent to the highest sentence that had ever been imposed for motor vehicle manslaughter in this State. That ground runs into the second ground of appeal and it is convenient to deal with it under that ground.
Ground 2
40 This ground contends that the total effective sentence failed to adequately reflect the totality principle and resulted in a manifestly excessive sentence in the circumstances of the case.
41 The reported cases do not reveal any case in which a sentence greater than 8 years' imprisonment (post-transitional) has been imposed. The only equivalent case is Penny v The State of Western Australia [2006] WASCA 173 where Buss JA (with whom Roberts-Smith and McLure JJ agreed) concluded that in the circumstances of the case a sentence of 8 years' immediate imprisonment, although severe, reflected the criminality of the appellant's behaviour and the need to protect the community by giving considerations to personal and general deterrence (at [107]).
42 Penny's case was an extreme case. It was in the upper range of seriousness for offences of its type (see McLure JA at [18]). Further, the appellant's antecedent criminal history demonstrated that the offence was 'not an uncharacteristic aberration but is a manifestation of a continuing attitude of disobedience of the law … [illuminating] the very significant moral culpability of the appellant' [18]. The features of the case included the fact that the appellant had tried to evade police by driving at a speed well above the speed limit, had ignored a stop sign, driven on the footpath, was driving a stolen motor vehicle, was not a licensed driver,
(Page 14)
- was on parole at the time the offences were committed, attempted to evade police following the collision, had traces of cannabis in his blood and had a serious criminal record.
43 In Penny's case, Buss JA at [79] et seq reviewed comparable sentences for unlawful killing. It is unnecessary to repeat that exercise. Numerous cases are referred to. Some of them were summarised by counsel for the appellant in his written submissions. They do show that apart from Penny's case, sentences of 10 years prior to application of the transitional provisions (6 years 8 months after application of those provisions) seem to be common for bad cases of motor vehicle manslaughter, with only Penny's case exceeding that sentence.
44 I previously referred to Kay. It was not a case included in Buss JA's review of comparable sentences, but that is because it was a case involving two counts of dangerous driving causing death and one of causing grievous bodily harm. There, a sentence of 8 years (post-transitional) was reduced to one of 6 years. It was a case in which the appellant had pleaded not guilty but had been convicted after trial. He did not, therefore, receive any benefit for a plea of guilty. The facts revealed that he had been driving a road train through the town of Merredin and had collided with the rear of a motor vehicle stopped at a railway crossing at which the railway crossing lights had been activated. It was a very bad case because the appellant was driving a 9-ton prime mover connected to trailers on which there were 28 tons of freight. The vehicle was thus a lethal weapon on the road if driven dangerously. Shortly before the collision, the road train was travelling at a speed just in excess of 67 kilometres per hour in a 70 kilometre per hour zone. Evidence revealed that drivers of such vehicles generally travelled at 45 - 50 kilometres per hour through Merredin which was an appropriate speed for such a vehicle within the town site. The appellant had a bad record for driving offences and the collision in question was the third occasion upon which he had struck the rear of other vehicles whilst driving road trains. There were very few mitigating factors that favoured him. The penalty that was ultimately imposed on appeal has to be considered in light of the fact that for dangerous driving causing death or grievous bodily harm a maximum applicable penalty is 4 years' imprisonment. Nevertheless, it was a bad case and counsel for the appellant was right to seek to draw a comparison between it and the present case.
45 Without reviewing in detail each of the comparable cases that have dealt with cases in the worst category of offences, I would accept that,
(Page 15)
- generally speaking, sentences of 10 years' imprisonment (pre-transitional) have marked out those cases. In one instance (Penny's case), the sentence was 12 years' imprisonment (pre-transitional).
46 In my view, comparable sentences for motor vehicle manslaughter tend to show that the courts have not always 'valued human life as highly as the legislature' (R v Bangard [2005] VSCA 313; (2005) 13 VR 146, [12] Buchanan JA). The maximum sentence for the crime of manslaughter is 20 years and motor vehicle manslaughter cases have seldom resulted in head sentences beyond 10 years (pre-transitional).
47 As Nettle JA observed in R v Bangard, '[i]f … the practice is to impose sentences that are too low, a judge may rise above it' [39]. His Honour added:
So to say is not to ignore the importance of consistency in sentencing. If a sentence is higher than any other in statistics furnished to a court of criminal appeal, it goes without saying that it is a matter which calls for scrutiny. That is why trial judges should and do take sentencing statistics into account. But if upon analysis a sentence accommodates all of the criteria to which a sentencing judge must have regard, including the maximum sentence set by Parliament, the fact that the sentence may range above the current practice is not a basis to disturb it [40]. (footnotes omitted)
- These comments were made in the context of an unlawful killing caused by physical violence, but they are equally applicable to the present case.
48 In the present case, the sentence imposed by the learned sentencing judge did not exceed the highest sentence that has been imposed for the crime of motor vehicle manslaughter. The question is whether it was, in all the circumstances, excessive in this case. That brings into question the totality principle. It is a principle well understood in sentencing and does not require repetition. It is sufficient to refer to the statement of Ipp J in Jarvis v The Queen (1993) 20 WAR 201, 207, to the following effect:
The overriding principle is accordingly that the aggregate sentence (even when punishment is being imposed for multiple offences) should fairly and justly reflect the total criminality of the offender's conduct: see Veen v The Queen (No 2) (1988) 164 CLR 465; Evangelista v The Queen [Unreported, WASCCCA, Library No 920051, 30 January 1991]; R v Glenister [1980] 2 NSWLR 597 at 612; Lade v Mamarika (1986) 83 FLR 312.
49 Ipp J (at 206 - 207) also pointed out that in taking a last look at the total period of imprisonment imposed, the court must apply the principle that the sentence should be proportionate to the degree of criminality
(Page 16)
- involved and the crushing effect of a term of imprisonment is a factor to be taken into account. That is the complaint about the present case. It is contended that having regard to the age and antecedents of the appellant, a sentence of 8 years' imprisonment does have a crushing effect. It is contended that only partial cumulation should have been ordered so as to achieve a sentence proportionate to the criminality of the offending.
50 I have given careful consideration to this question, but I have concluded that the five crimes of manslaughter committed by the appellant in this case were at the upper end of seriousness for motor vehicle manslaughter cases and an overall sentence of 8 years' imprisonment, which saw two terms of 4 years' imprisonment accumulated, properly reflected the total criminality involved.
51 Although only 19 years of age at the time of commission of the offences, the appellant took it upon himself to drive a motor vehicle on a public road at a grossly excessive speed and in circumstances where he had impaired his driving ability by reason of the intake of drugs.
52 People driving on public roads whilst affected by amphetamines and methylamphetamine are a threat to the safety and wellbeing of others. It is those drugs that sometimes cause young offenders to drive at grossly reckless speeds. There is an increased risk of life threatening collisions in these circumstances. In this case, five innocent persons lost their lives in a horrendous motor vehicle collision. Despite the appellant's youth, pleas of guilty, remorse and generally good antecedents, he typifies the attitude of some young people driving on public roads today. Deterrent sentences are demanded in cases such as this, and whilst personal factors are extremely important in determining the ultimate sentences to be imposed, they are but one aspect of the sentencing process.
53 In my view, the sentences imposed in this case were within the discretion of the learned sentencing judge. The sentencing comments reveal a very careful analysis of the facts of the case and all relevant circumstances. It would be in contravention of the principle expressed in Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 at [15] for this court to interfere with the discretionary judgment of the learned sentencing judge. It is of particular importance that this court should not substitute its opinion for that of the sentencing judge merely because it may have exercised its discretion in a different manner.
54 This case should also serve as a clear indication that sentences in excess of 10 or even 12 years (pre-transitional) for motor vehicle
(Page 17)
- manslaughter cases in which there have been multiple deaths and in which the cases can properly be categorised as in the upper end of seriousness for the offence of motor vehicle manslaughter will no longer be considered to be beyond the range for offences of that type. Sentences in motor vehicle manslaughter cases do need to reflect the value placed upon human life by the legislature (R v Bangard per Buchanan JA at [12]) and, in my opinion, they have not in the past always done that.
Conclusion
55 In all the circumstances of this case, I consider the effective sentence of 8 years' imprisonment imposed by the learned sentencing judge to have been within a proper exercise of his discretion. I can see no basis upon which it should be interfered with, and I would dismiss the two grounds of appeal.
22
9
2