Taylor v The State of Western Australia

[2009] WASCA 226

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   TAYLOR -v- THE STATE OF WESTERN AUSTRALIA [2009] WASCA 226

CORAM:   McLURE P

OWEN JA
WHEELER JA

HEARD:   3 DECEMBER 2009

DELIVERED          :   17 DECEMBER 2009

FILE NO/S:   CACR 48 of 2009

BETWEEN:   DEREK JUTE TAYLOR

Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:

Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA

Coram  :STEVENSON DCJ

File No  :IND 1521 of 2008

Catchwords:

Criminal law - Sentencing - Dangerous driving causing death - Whether sentence of 26 months' imprisonment manifestly excessive

Legislation:

Nil

Result:

Appeal allowed
Appellant resentenced

Category:    D

Representation:

Counsel:

Appellant:     Mr T F Percy QC

Respondent:     Mr A L Troy

Solicitors:

Appellant:     McKenzie & McKenzie

Respondent:     Director of Public Prosecutions (WA)

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

Eves v The State of Western Australia [2008] WASCA 7

Kay v The Queen [2004] WASCA 222

Koltasz v The Queen [2003] WASCA 38

Ponnusamy v The State of Western Australia [2008] WASCA 224

Whybrow v The Queen [2008] NSWCCA 270

Wood v The Queen [2002] WASCA 95

1. McLURE P:  I agree with Wheeler JA.

2. OWEN JA:  I agree with Wheeler JA.

3. WHEELER JA:  This is an application for leave to appeal and, if it is granted, an appeal against sentence.  On 18 February 2009, the appellant was convicted after trial of one count of dangerous driving causing grievous bodily harm to Mark Archer and one count of dangerous driving causing the death of Chloe Emma Schoppe.  On 8 April 2009, he was sentenced to a total of 26 months imprisonment, with parole eligibility.  That sentence was made up of a 14‑month term of imprisonment in respect of the first count and a 26‑month term in respect of the second, to be served concurrently. 

4. On Monday, 23 July 2007, the appellant drove to Perth from Kalgoorlie with friends, to spend a week in Perth and celebrate a friend's birthday.  On 28 July, they went to Chloe Schoppe's house in Rockingham.  The appellant was at that time approximately 18 1/2 years old.  He was the designated driver and so he did not drink any alcohol that evening.  A little after midnight, the appellant was driving a car with some of his friends as passengers, including the deceased girl.  The vehicle he was driving was not his own vehicle, and had, apparently unknown to the appellant, four bald tyres.  At or near a set of traffic lights on Mandurah Road, a Holden Commodore driven by Mark Archer pulled up to the left of the vehicle driven by the appellant.  Mr Archer revved his engine in what the learned sentencing judge accepted was an invitation to a drag race. 

5. The appellant accepted the invitation to race.  The area was dark, it had been raining lightly and the road was wet.  During the drag race, the appellant reached a speed of about 120 km per hour, but then slowed to about 90 km per hour.  The speed limit in the area was 80 km per hour.

6. The race lasted a very brief period of time.  The whole event lasted no more than about 90 seconds.

7. It appears that the two vehicles may have touched briefly, probably as a result of Mr Archer moving around a vehicle pulled up on the roadside.  Both drivers lost control of their vehicles and left the road.  They were slowed by vegetation before coming to a stop.  When the appellant's vehicle came to a stop, it was immediately apparent that Chloe Schoppe was not in the vehicle.  She had not been wearing a seat belt and was thrown from the vehicle.  She died at the scene of the accident as a

result of head injuries.  She was 16 years of age.  It is clear from the victim impact statement of her father that, as one would expect, the effect of her death has been devastating.

1. Mr Archer sustained life‑threatening injuries and remained in intensive care until 6 August 2007.  He suffered serious spinal injuries and also underwent a craniotomy. 

2. There are three grounds of appeal, all directed at the sentence in respect of count 2.  They assert that the sentence of 26 months was manifestly excessive (ground 1); that his Honour erred in failing to give sufficient weight to the appellant's prior good character, antecedents, his very young age, and the absence of alcohol or drugs at the time of driving (ground 2); and they raise an issue of parity with Mr Archer (ground 3).

3. To take the last matter first, there were some differences between Mr Archer and the appellant.  Because the appellant went to trial while Mr Archer entered a fast‑track plea of guilty, Mr Archer was sentenced about 6 months before the appellant and by a different judge.  He was, of course, charged only with dangerous driving causing the death of Chloe Schoppe and not with causing his own injuries.  He received a sentence of 1 year's imprisonment with parole eligibility. 

4. On the one hand, so far as Mr Archer was concerned, there were two very significant mitigating factors which were not present in the case of the appellant.  One was the fast‑track plea which I have already mentioned.  The other is that he suffered serious injuries which are likely to have a permanent effect upon him.  This is an "extra‑curial punishment" which the court is entitled to take into account:  Whybrow v The Queen [2008] NSWCCA 270 at [22] ‑ [25]. On the other hand, Mr Archer was 30, while the appellant was 18, so that the appellant had his youth by way of mitigation. Further, although the judge sentencing Mr Archer did so on the basis that he had been racing, the facts as she understood them were that there was nothing that Mr Archer had done prior to the race that made the appellant race him. As appears, however, from the materials before us, it was Mr Archer's revving of the engine loudly to attract the appellant's attention (apparently in an invitation to race) that initiated the racing. Mr Archer had been drinking (having a blood alcohol level of 0.13), while the appellant had not.

5. The differences between the circumstances of Mr Archer and the appellant are such that it would not be unreasonable to expect somewhat different sentences.  Given Mr Archer's fast‑track plea and injuries, one would expect him to receive a less severe sentence than that imposed on the appellant.  Whether the appellant should have received a term of imprisonment more than double that imposed on Mr Archer, is a different question.  It seems to me that there should have been some closer alignment between the two sentences.  Whether that gives rise to an issue of "parity" strictly so‑called, it is not necessary to determine, in view of my conclusion in respect of ground 1.

6. So far as the appellant's personal circumstances and good antecedents were concerned, in careful sentencing remarks his Honour referred to those matters in some detail.  He clearly did not overlook them.  A failure to give proper weight to a relevant sentencing consideration gives rise to appellable error only if it amounts to a failure to exercise the discretion actually entrusted to the court:  Ponnusamy v The State of Western Australia [2008] WASCA 224 at [22]. That leaves the question of manifest excess.

7. There were, as the learned sentencing judge noted, a number of serious aspects of the case.  They included the accepting of Mr Archer's invitation to race, coupled with the fact that the appellant knew, or should have known, that he was a relatively inexperienced driver, the fact that the road was wet, and the fact that he had accepted responsibility for the passengers in his vehicle.  However, there were a number of features of the appellant's conduct which suggested that his behaviour was not at the higher end of culpability.  He was sober, and there was no suggestion that, prior to the decision to race, his driving had been other than appropriate.  Although he was speeding at the time of the accident, he was in excess of the speed limit by something of the order of 10 km per hour; this is not, compared to the many very serious speeding cases which result in death, an example of extreme speed.  The period of bad driving, although deliberate, was extremely brief.  Other than his speed, there was apparently no other feature of the appellant's driving which was dangerous. 

8. So far as the appellant's personal circumstances were concerned, it is true that he had not entered a plea of guilty, and therefore was not entitled to any discount on account of his plea.  However, the learned sentencing judge, who had the advantage of being the trial judge, accepted that the appellant was deeply ashamed of his behaviour and remorseful.  At the time of the offence, he was only 18 years of age, and was 20 at the time of sentencing.  It is a serious matter to send a young person to gaol for the first time.  He had one prior driving offence, involving alcohol, as a child, but otherwise had no record.  He had a number of very favourable references.  He had completed a programme in the prison and had played a role in the prison, assisting others, while in custody awaiting sentence.

9. Having regard to other cases of dangerous driving, the driving in this case cannot be characterised as being of the most serious kind, or even towards the upper end of the range of possible dangerous driving.  When that fact is coupled with the personal circumstances of the appellant, I am satisfied that the sentence imposed was manifestly excessive. 

10. The maximum penalty available for the offence of dangerous driving causing death was 4 years' imprisonment.  Penalties significantly less than 26 months were accepted as appropriate in Eves v The State of Western Australia [2008] WASCA 7 (29‑year‑old offender, after trial, no deliberate decision to drive dangerously, but lengthy period of driving when too tired) and Wood v The Queen [2002] WASCA 95 (24‑year‑old offender, also convicted at trial, also driving while tired).

11. Although it is not necessary, on a complaint of manifest excess, to identify any specific error, I note that his Honour was referred to the case of Koltasz v The Queen [2003] WASCA 38, as authority for the proposition that there are essentially two categories of cases of this nature for the purposes of sentencing, the first being cases in which the accident resulted from momentary inattention or misjudgment, and the second and more serious being the category in which the accused has driven in a manner which has shown a "selfish disregard" for the safety of other road users. Having concluded, in my respectful view correctly, that it was not possible to characterise a deliberate decision to race as momentary inattention or misjudgment, his Honour seems to have considered that that conclusion meant that the appellant's behaviour necessarily fell into the other category of serious behaviour for purposes of sentencing. However, it has been noted, since Koltasz, that those two categories do not mark out adequately the range of relevant circumstances concerned with the quality of driving in cases of this kind, and that such a division may lead to error:  Eves at [11] per Steytler P, [21] ‑ [23] per McLure JA, Kay v The Queen [2004] WASCA 222 at [3] per Murray J, [53] per Miller J (with both of whom I agreed). It is unfortunate that in the present appeal, the respondent's submissions appear to be based on the premise that the dual characterisation referred in Koltasz will necessarily be of assistance.

12. I would quash the sentence imposed by his Honour in respect of count 2  and substitute a sentence of 1 year and 8 months.  There was no challenge to the sentence in respect of count 1.  Allowing those terms to be served concurrently is, in my view, an appropriate reflection of the overall criminality of the appellant's offending.  The result would be a total effective sentence of 1 year and 8 months' imprisonment, with eligibility for parole to commence from 18 February 2009.  No issue was taken with his Honour's order that the appellant's motor driver's licence be disqualified for a total period of 2 years, and I would therefore not disturb that order.