The State of Western Australia v Gibbs
[2009] WASCA 7
•13 JANUARY 2009
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: THE STATE OF WESTERN AUSTRALIA -v- GIBBS [2009] WASCA 7
CORAM: STEYTLER P
McLURE JA
MILLER JA
HEARD: 1 DECEMBER 2008 & 9 JANUARY 2009
DELIVERED : 13 JANUARY 2009
FILE NO/S: CACR 60 of 2008
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Appellant
AND
DAMIAN JAY GIBBS
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :KENNEDY CJDC
File No :IND 244 of 2008
Catchwords:
Criminal law - Road Traffic Act 1974 (WA) - Statutory construction - Amendment - Whether new offence created - Dangerous driving occasioning death in circumstances of aggravation - Application of Sentencing Legislation Amendment and Repeal Act 2003 (WA)
Criminal law - Statutory construction - Whether introduction of circumstances of aggravation created new offence - Discussion of Kingswell v The Queen
Criminal law - Sentencing - Customary standards - Relevance of penalties for motor vehicle manslaughter to penalties for dangerous driving causing death
Criminal law - Road traffic offences - Suspension of drivers licence - Whether separate periods of suspension are required for each separate road traffic offence
Legislation:
Criminal Appeals Act 2004 (WA), s 41(4)(b)
Criminal Law Consolidation Act 1935 (SA), s 19a
Customs Act 1901 (Cth), s 233B, s 235
Misuse of Drugs Act 1981 (WA), s 6(1)
Road Traffic Act 1961 (SA), s 45
Road Traffic Act 1974 (WA), s 59, s 59B,
Road Traffic Amendment (Dangerous Driving) Act 2004 (WA)
Sentencing Act 1995 (WA), s 32, s 103(1), s 105(2)
Sentencing Legislation (Transitional Provisions) Amendment Act 2008 (WA)
Sentencing Legislation Amendment and Repeal Act 2003 (WA)
Result:
Appeal allowed in part
Category: A
Representation:
Counsel:
Appellant: Mr D Dempster
Respondent: Ms B J Lonsdale & Mr G C R Yin
Solicitors:
Appellant: Director of Public Prosecutions (WA)
Respondent: D G Price & Co
Case(s) referred to in judgment(s):
Arthur v Police (SA) [2008] SASC 213; (2008) 101 SASR 529
Chan v The Queen (1989) 38 A Crim R 337
Cheng v The Queen [2000] HCA 53; (2000) 203 CLR 248
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
Eves v The State of Western Australia [2008] WASCA 7; (2008) 49 MVR 259
Kay v The Queen [2004] WASCA 222; (2004) 42 MVR 130
Keating v The State of Western Australia [2007] WASCA 98
Kingswell v The Queen (1985) 159 CLR 264
Longbottom v The State of Western Australia [2008] WASCA 203; (2008) 51 MVR 224
Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665
Mallet v Mallet (1984) 156 CLR 605
Penny v The State of Western Australia [2006] WASCA 173; (2006) 33 WAR 48
Ponnusamy v The State of Western Australia [2008] WASCA 224
Punch v The Queen (1993) 9 WAR 486
R v Bangard [2005] VSCA 313; (2005) 13 VR 146
R v Courtie [1984] AC 463
R v Hietanen (1989) 51 SASR 510
R v Meaton (1986) 160 CLR 359
R v Stebbings (1990) 4 WAR 538
Romeyko v Samuels (1972) 2 SASR 529
Scook v The Queen [2008] WASCA 114
Speering v The State of Western Australia [2008] WASCA 266
Taylor v The State of Western Australia [2007] WASCA 218; (2007) 48 MVR 562
The State of Western Australia v Collier [2007] WASCA 250; (2007) 178 A Crim R 310
The State of Western Australia v Houston [2005] WASCA 167
The State of Western Australia v Richards [2008] WASCA 134
Vagh v The State of Western Australia [2007] WASCA 17
White v The Queen [2003] WASCA 197; (2003) 39 MVR 157
Yates v The State of Western Australia [2008] WASCA 144
STEYTLER P: This prosecution appeal raises a number of questions concerning the construction of the Road Traffic Act 1974 (WA) (RTA). It arises out of the conviction of the respondent, on indictment, on two counts of dangerous driving occasioning death in circumstances of aggravation contrary to s 59(1)(b) of the RTA. The respondent pleaded guilty to both counts.
The two offences arose out of a motor vehicle collision on 10 May 2007. The collision occurred on a stretch of the Tonkin Highway in Ascot. That stretch of the highway is subject to a 100 km per hour speed limit. At the time, the respondent was driving his car at a speed of between 153 and 161 km per hour. The highway has two lanes travelling in a northerly direction. Mr Gerald Vance was riding his motorcycle in the left lane. His wife, Ms Yoke Vance, was a passenger on the motorcycle. Mr Vance indicated his intention to move into the right lane. He did so. The respondent was then in the right lane. He was also travelling in a northerly direction. Because he was travelling so fast he was unable to avoid driving into the back of the motorcycle. Mr Vance did not appreciate, and could not reasonably have been expected to appreciate, how fast the respondent was driving. The impact of the collision was so severe that the motorcycle became embedded in the left front of the respondent's car, in an upright position. Mr and Mrs Vance were killed.
The respondent stopped immediately after the collision. He remained at the scene and rendered what assistance he could. He was obviously distraught at what had happened. He remained so for a considerable period after the day of the accident.
The respondent's personal circumstances
The respondent was subsequently convicted on a charge of possession of methylamphetamine with intent to sell or supply, contrary to s 6(1) of the Misuse of Drugs Act 1981 (WA). That offence had been committed on 3 July 2007, some two months after the collision. The respondent, who pleaded guilty to the drug offence, was sentenced in respect of that offence and others, which were dealt with pursuant to a notice issued under s 32 of the Sentencing Act 1995 (WA) (together 'the subsequent offences'). He was required to serve a total term of 12 months' imprisonment, with eligibility for parole. Consequently, he was a sentenced prisoner when dealt with for the present offences on 18 April 2008. His earliest parole eligibility date was 7 August 2008 and his 12‑month prison term is due to expire on 6 February 2009.
The respondent had no prior convictions of any significance. However, he had lost his driver's licence on two previous occasions as a result of demerit suspensions.
The respondent, who was 28 years old at the time of sentencing, developed post‑traumatic stress disorder as a result of the collision. This developed into severe depression. He took antipsychotic and antidepressant medications in order to alleviate his symptoms. He also self‑medicated by taking amphetamines and this developed into a 'full‑blown habit'. His marriage broke down irreconcilably after the collision. Also, he lost his business, which had been doing well at the time of the collision. Shortly before being dealt with in respect of the subsequent offences, he developed a new relationship with a woman who was expecting his first child. He supported his new partner's two young children from a previous relationship. Favourable character references were provided in respect of him.
Sentencing remarks
The sentencing judge mentioned that the maximum penalty for each of the offences committed by the respondent was 20 years' imprisonment. She considered that this created an anomaly, because that penalty was more severe than the effective maximum penalty for manslaughter. She said that, although the latter maximum was also 20 years' imprisonment, the transitional provisions of the Sentencing Legislation Amendment and Repeal Act 2003 (WA) (transitional provisions) applied to manslaughter (resulting in a maximum effective term of 13 years and 4 months' imprisonment) but not to the offences of which the respondent had been convicted. She said that this could not have been intended by the legislature.
After referring to the age and antecedents of the respondent, in the course of which she spoke of his remorse and of the personal consequences that he had already endured as a result of the collision, the sentencing judge imposed a term of 3 years' imprisonment on each count, with eligibility for parole. The sentence on count 2 was ordered to commence 18 months after the commencement of the sentence on count 1, resulting in a total effective sentence of 4 1/2 years' imprisonment. That sentence was ordered to be served cumulatively on the sentence already being served by the respondent for the subsequent offences. The respondent's driver's licence was suspended for 2 years. The sentencing judge said, in that respect, that he would, by then, have been off the road for 5 1/2 years.
In arriving at each of the 3‑year terms, the sentencing judge took, as her starting point, a term of 4 years. In each case she allowed a 25% reduction for the respondent's fast‑track plea of guilty. She said that, in adopting the starting point, she had been influenced by the decisions of the Court of Appeal in R v Stebbings (1990) 4 WAR 538 and Taylor v The State of Western Australia [2007] WASCA 218; (2007) 48 MVR 562.
Ground of appeal
There are eight grounds of appeal.
The first two grounds challenge the sentencing judge's reliance upon manslaughter cases and her conclusion that it could not have been the legislature's intention for the maximum sentence permitted in respect of an offence of the present kind to have been greater than that for manslaughter.
Ground 3 contends that the sentencing judge erred in 'adopting as a comparative head sentence a case in which the court had taken into account a plea of guilty'.
Ground 4 alleges an error in failing to comply with s 88(4) of the Sentencing Act. This error, which favoured the respondent, was said to have arisen out of the fact that the sentencing judge ordered the term on count 2 to commence after a period extending beyond the earliest date on which the offender could be released on parole in respect of the other sentences imposed on him.
Ground 5 challenges an inconsequential factual finding made by the sentencing judge. She said in the course of her sentencing remarks, that the respondent had been married for a period of eight years. However, the evidence established that he had only been married for a period between one and two years.
Ground 6 contends that the sentencing judge placed undue weight on the respondent's personal circumstances and prospects of rehabilitation, rather than on the need for personal and general deterrence. The particulars to that ground contend that a discount of 25% was too great, given the strength of the prosecution case. Next, the particulars contend that weight was given to the respondent's remorseful conduct after the offences, 'although the particulars of that conduct were not identified'. Finally, the particulars to ground 6 contend that undue weight was given to what the sentencing judge considered to be the substantial penalties that the respondent had visited upon himself through his depressive illness and illicit drug use following the offences.
Ground 7 contends, in the alternative, that the sentences imposed were so inadequate as to manifest error.
Ground 8 contends that the 2‑year disqualification was manifestly inadequate. This was the minimum period of disqualification permitted by s 59(3) of the RTA.
Grounds 1 and 2
The first question that arises in respect of grounds 1 and 2 is whether the maximum sentence for the offence of aggravated dangerous driving occasioning death is in fact greater than the maximum available for the offence of manslaughter. That, in turn, depends upon whether the offences of which the respondent was convicted were created after the transitional provisions came into effect.
In Yates v The State of Western Australia [2008] WASCA 144, this court determined, by a majority, that the transitional provisions were intended to apply to offences created after their commencement, absent some expression of legislative intention to the contrary. However, the transitional provisions do not apply in cases in which the statutory penalty for an offence has been amended since those provisions came into operation: cl 2(5)(a). I should mention that, at the date of writing, the Sentencing Legislation (Transitional Provisions) Amendment Act 2008 (WA) has yet to take effect.
Section 59 of the RTA, under which the respondent was convicted, was amended, after the transitional provisions took effect, by the Road Traffic Amendment (Dangerous Driving) Act 2004 (WA) (amending Act). There have since been other amendments, but these were not applicable at the time of the offences.
The amending Act came into effect on 1 January 2005. Immediately prior to that, the relevant provisions of s 59 of the RTA read as follows:
59.Dangerous driving causing death, injury, etc.
(1)A person who causes the death of or grievous bodily harm to another person by driving a motor vehicle 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 commits a crime and is liable to the penalty in subsection (3).
Summary conviction penalty: imprisonment for 18 months or a fine of 160PU and in any event the court convicting the person shall order that he be disqualified from holding or obtaining a driver's licence for a period of not less than 2 years.
…
(3)A person convicted on indictment of an offence against this section is liable ‑
(a)if at the time of the offence the motor vehicle was unlawfully being driven without the consent of the owner or person in charge of the motor vehicle, 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 imprisonment for 4 years or a fine of 400PU.
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.
After the amendment, s 59, read, relevantly, as follows:
59.Dangerous driving causing death, injury, etc.
(1)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, drugs or 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).
Summary conviction penalty:
Imprisonment for 18 months or a fine of 160PU and in any event the court convicting the person shall order that he be disqualified from holding or obtaining a driver' s licence for a period of not less than 2 years.
…
(3)A person convicted on indictment of an offence against this section is liable ‑
(a)if the offence is against subsection (1)(a), 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 imprisonment for 4 years or a fine of 400PU
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.
…
At the same time, s 59B was introduced into the RTA by the amending Act. Sub‑section (3) of that section provides (amongst other things) that, for the purposes of s 59, a person commits an offence in 'circumstances of aggravation' if at the time of the alleged offence ‑
(a)the person was unlawfully driving the vehicle concerned without the consent of the owner or person in charge of the vehicle;
(b)the person was driving the vehicle concerned on a road at a speed that exceeded, by more than 45km/h, the speed limit (if any) applicable to that length of road; or
(c)the person was driving the vehicle concerned to escape pursuit by a member of the Police Force.
Sub‑section (6) provides that, in any proceeding for an offence against s 59, it is a defence for the person charged to prove that the death or grievous bodily harm occasioned by the incident was not in any way attributable either to the fact that the person charged was under the influence or to the manner (including speed) in which the motor vehicle was driven.
The changes introduced by the amending Act are significant. Most importantly, there is no longer any requirement that causation be proved as an element of the offence. The prosecution need merely establish that the 'incident' occasioned death or grievous bodily harm. By subs 59B(6) the person charged bears the onus of proving that the death or grievous bodily harm occasioned by the incident was not in any way attributable to the fact that he or she was under the influence or to his or her manner of driving.
Next, s 59(3) of the RTA, prior to its amendment, identified only one circumstance in which the higher penalty of 20 years' imprisonment was to be applicable where death was caused, being that in which the motor vehicle was, at the time of the offence, being unlawfully driven without the consent of the owner or person in charge of the motor vehicle. The amending Act had the effect that s 59(3) now provides that a person commits an offence in 'circumstances of aggravation' if, at the time, any of three circumstances is present, one of these being that the person was driving the vehicle at a speed at more than 45 km per hour above the speed limit.
Counsel for the appellant submitted that the amending Act amended the penalty for the offence for which the offender was being sentenced, but did not create any new offence. He urged upon us the proposition that the amendments relating to causation did no more than reverse the onus of proof in that respect, making it easier for the offence to be proved, rather than creating a new offence. He also contended that the existence of aggravating circumstances merely influence the penalty to be applied and do not constitute part of the offence of which the respondent was convicted. He consequently submits that the sentencing judge was right to find that the transitional provisions did not apply, but wrong to approach the issue of sentencing as if they did.
Counsel for the respondent contends that the amending Act created a new offence, with the result that the sentencing judge was wrong to assume that the transitional provisions were not applicable.
I have said that the amendment relieving the prosecution of the obligation to prove causation is significant. I have also said that it is enough, now, for the prosecution to prove that the offender was involved, in the circumstances posited, in an incident occasioning the death of, or grievous bodily harm to, another person. This change seems to me to bring about a fundamental alteration to the elements of the offence that are required to be proved. An offence in respect of which it is necessary to prove that the death or grievous bodily harm resulting from an incident was caused by dangerous driving seems to me to be very different from one in which it is necessary to prove only that the death or grievous bodily harm resulted from an incident involving dangerous driving (or driving under the influence) regardless of whether it was or was not caused by the dangerous driving (or the fact that the driver was under the influence). That conclusion is not altered by the fact that the person charged is afforded a defence by s 59B(6) if that person is able to prove that the death or grievous bodily harm was not 'in any way attributable' to either of the factors identified. There might be cases in which the evidence is inconclusive one way or the other. Whereas, formally, that situation would have necessitated an acquittal, now it will result in a conviction.
The position is starkly illustrated by the second reading speech in respect of the amending Act made by the then Attorney General, Mr Jim McGinty (Western Australia, Parliamentary Debates, Legislative Assembly, Wednesday 23 June 2004, 4,184 - 4,185):
The amendments to the Road Traffic Act 1974 contained within this Bill aim to address deficiencies in the law relating to dangerous driving causing death or serious injury. The deficiencies in the law were highlighted by the very sad death in August last year of Miss Jess Meehan, a 10‑year‑old girl. Jess Meehan died on 8 August 2003 after being hit by a car driven by an unlicensed and drunken driver. The police subsequently charged the driver with driving under the influence of alcohol and driving whilst under suspension and without a valid licence, and the minimum fine was imposed. The police took the view that a more serious charge, such as dangerous driving causing death, contrary to s 59 of the Road Traffic Act, could not be sustained upon the available evidence. Because of the deficiencies in s 59 of the Road Traffic Act, in particular, its requirement for a causative nexus to be established between the driver's intoxication and the collision causing death, the penalties imposed upon the driver involved in the incident that took Jess Meehan's life failed to address the true seriousness of his conduct. Justice was not served.
Those comments apply as much to dangerous driving as they do to driving under the influence.
An offence is defined by its elements and, if one or more of these is altered, a different offence is created. The amending legislation has altered an element of the offence, being that of causation. Accordingly, a different offence was created and the transitional provisions had application. That being so, it cannot be said that she erred in placing reliance upon manslaughter cases and in concluding that it could not have been the legislature's intention for the maximum sentence in respect of the present offences to be greater than that for manslaughter. Grounds 1 and 2 consequently fail.
Although it is consequently unnecessary for me to consider whether the enactment of a new circumstance of aggravation (driving the vehicle at a speed of more than 40 km per hour above the speed limit) created a new offence, I will comment on that issue. That requires consideration of a number of cases.
In R v Courtie [1984] AC 463, 471, Lord Diplock, with whom the other members of the House of Lords were in agreement, said:
… where it is provided by a statute that an accused person's liability to have inflicted upon him a maximum punishment which, if the prosecution are successful in establishing the existence in his case of a particular factual ingredient, is greater than the maximum punishment that could be inflicted on him if the existence of that particular factual ingredient were not established, it seems to me to be plain beyond argument that Parliament has thereby created two distinct offences, whether the statute by which they are created does so by using language which treats them as being different species of a single genus of offence, or by using language which treats them as separate offences unrelated to one another.
In Kingswell v The Queen (1985) 159 CLR 264, Gibbs CJ, Wilson and Dawson JJ (who, with Mason J, comprised the majority in this respect) concluded that that passage could not have been intended to state an absolute rule of law, but rather one of construction or an indication of the way in which the courts will approach a question of this kind. They went on say (276):
The existence of a particular circumstance may increase the range of punishment available, but yet not alter the nature of the offence, if that is the will of the Parliament. The rule of construction which Lord Diplock has enunciated is a salutary one, but must yield to an expression of a contrary intention.
They found, in the context of s 233B(1)(cb) and s 235 of the Customs Act 1901 (Cth) (Customs Act), that there was an expression of a contrary intention. Section 233B(1)(cb) had made it an offence for any person to conspire with another to import into, or export from, Australia any prohibited imports or exports to which the section apply. Section 233B(3) provided that a person who is guilty of an offence under sub‑section (1) 'is punishable upon conviction as provided by s 235'. Section 235(2) provided that, where a person commits an offence against, amongst others, sub‑section 233B(1) and the offence is one that is punishable as provided by s 235, the 'penalty applicable to the offence' is one or more of those provided for by subsequent paragraphs. These paragraphs have the effect that the penalty ranges from imprisonment for life to a relatively minor penalty, depending upon whether or not the 'Court is satisfied' of matters variously set out in those paragraphs. The majority considered (273) that the words of s 233B(1) and (3) 'could hardly indicate more plainly that it was intended that each paragraph of s 233B(1) of itself creates an offence and that a person who is guilty of such an offence is punishable on conviction as provided by s 235'. They went on to say (also at 273):
Clearly enough, sub-s (3) declares what the punishment is to be, in certain circumstances, for an offence already defined. The same is true of sub‑s (2). The proper conclusion is that the Parliament intended by s 233B(1)(cb) to create one offence and to provide by s 235(2) and (3) a range of penalties applicable to that offence in certain circumstances.
They said (274) that this conclusion is supported by the reference to 'the Court' in s 235 and that, read in its context, the reference was one to the judge who imposed the sentence rather than to the jury which found the facts.
In Kingswell, Gibbs CJ, Wilson and Dawson JJ also said (280):
There is a close analogy between those cases in which the existence of the circumstances of aggravation converts the offence from a lesser to a greater one and those in which the existence of the circumstances of aggravation renders the accused liable to a penalty greater than that which could have been imposed if the circumstances did not exist. In cases of the first-mentioned kind, the circumstances of aggravation become elements of a distinct offence and therefore must be specifically alleged in the indictment. Where the circumstances of aggravation do no more than increase the maximum penalty, they do not alter the nature of the charge although they do affect, sometimes very materially, the legal consequences that may flow from a conviction.
They went on to find that, even in a case of the second kind, the preferable practice was that adopted in such states as Queensland and Western Australia, where circumstances of aggravation increasing the maximum punishment are alleged in the indictment and found by the jury. In Western Australia, the position is now regulated by s 7(3) of the Sentencing Act, which reads as follows:
(3)If the statutory penalty for an offence is greater if the offence is committed in certain circumstances than if it is committed without the existence of those circumstances, then ‑
(a)an offender is not liable to the greater statutory penalty unless he or she has been charged and convicted of committing the offence in those circumstances; and
(b)whether or not the offender was so charged, the existence of those circumstances may be taken into account as aggravating factors.
In R v Meaton (1986) 160 CLR 359, the majority (Gibbs CJ, Wilson & Dawson JJ) affirmed what had been said in Kingswell and repeated, in the context of s 233B and s 235 of the Customs Act, that the preferable course for the prosecution is to lay one charge which includes the circumstances of aggravation so that the jury can be directed that it would be open to them (in appropriate circumstances) to find the accused guilty of the charge without those circumstances of aggravation (364).
In Cheng v The Queen [2000] HCA 53; (2000) 203 CLR 248, the High Court, by a majority, declined to reopen Kingswell or to review their conclusion in Meaton as regards the procedural course to be favoured.
In R v Hietanen (1989) 51 SASR 510, the South Australian Full Court was concerned with s 19a of the Criminal Law Consolidation Act 1935 (SA). Sub‑section (3) of that section made it an indictable offence for a person to drive or ride a vehicle or an animal in a culpably negligent manner, recklessly, or at a speed or in a manner dangerous to the public and, by doing so, to cause bodily harm to another. Sub‑section (4) provided for the penalty for an offence against sub‑section (3). It provided for a range of penalties depending upon whether or not a motor vehicle was used in commission of the offence and, if it was, whether or not grievous bodily harm was caused to a person. If a motor vehicle was used, the penalty varied depending upon whether or not it was a first offence or a subsequent offence. King CJ (with whom Mohr & Prior JJ agreed) said (512):
I think that Parliament has plainly expressed its intention to create but one offence comprising the elements prescribed in subs (3) and not three offences distinguished by the criteria for the differing maximum penalties laid down in subs (4). Subsection (3) plainly creates the offence and prescribes the elements of it. Subsection (4) is expressed to deal with penalty only. Moreover it is expressed to prescribe the penalty 'for an offence against subsection (3)', that is to say the offence comprising the elements prescribed by subs (3). The intention of Parliament could not have been expressed more clearly. There is but one offence comprising the elements prescribed by subs (3). The maximum penalty for the commission of that offence differs according to whether the conduct constituting the commission of the offence is accompanied by one or more of the circumstances stipulated in subs (4).
Finally, Arthur v Police (SA) [2008] SASC 213; (2008) 101 SASR 529 provides an example of a case in which more than one offence was created. In that case, Gray J construed the provisions of s 45 of the Road Traffic Act 1961 (SA). Section 45(1) created the offence of careless driving. Section 45(2) provided that if the court convicted a person 'of an offence against this section that is an aggravated offence' the following provisions applied, being provisions which created penalties that were more severe than in the case of a non‑aggravated offence. Section 45(3)(a) provided that an offence that caused the death of, or serious harm to, a person was an aggravated offence. Section 45(3)(b) specified a further four matters that might give rise to an aggravated offence, all of which involved the commission of another offence at the time of the act of driving without due care. Gray J was required, for the purpose of deciding whether or not a plea of autrefois convict was available, to determine whether s 45 created a single offence or multiple offences. After mentioning that the question must be resolved as a matter of statutory construction by reference to the text and structure of the statute, Gray J went on to quote from the judgment of Bray CJ in Romeyko v Samuels (1972) 2 SASR 529, as follows [20]:
The true distinction, broadly speaking, it seems to me, is between a statute which penalises one or more acts, in which case two or more offences are created, and a statute which penalises one act if it possesses one or more forbidden characteristics. In the latter case there is only one offence, whether the act under consideration in fact possesses one or several of such characteristics. Of course, there will always be borderline cases and if it is clear that Parliament intended several offences to be committed if the act in question possesses more than one of the forbidden characteristics, that result will follow.
Then, after considering other cases, including Courtie and Kingswell, Gray J went on to say [22] ‑ [23]:
In considering the terms of s 45 of the Road Traffic Act, it would appear that there is a basic offence of careless driving and at least one aggravated offence because a greater maximum penalty is imposed for an aggravated offence. The reference in s 45(2) to 'an offence against this section that is an aggravated offence' is also indicative of discrete offences. Moreover, unlike the text of the provision considered by King CJ in [R v] Hietanen [(1989) 51 SASR 510, 512] the offences in s 45 of the Road Traffic Act are set out in separate subsections with different provisions providing the penalty applicable to each.
The structure of s 45(3) also suggests that there may be at least two aggravated offences: an offence that caused the death of, or serious harm to, a person; and an offence committed in any of the circumstances specified in s 45(3)(b). The further question of whether s 45(3)(b) creates one or more offences also requires close consideration. The offence may be one of driving without due care where one or more of the circumstances in (i)‑(iv) are proved (see, for example, Montgomery v Stewart (1967) 116 CLR 220; [1967] ALR 449) or a separate offence may have been created for each circumstance of aggravation.
Finally, for present purposes, Gray J said [26]:
There is reason to treat careless driving causing death or serious injury as a separate offence. There is a substantial qualitative difference between careless driving causing death or injury on the one hand and careless driving accompanied by any of the circumstances described in s 45(3)(b). To adopt the approach of Bray CJ in Romeyko [Romeyko v Samuels (1971) 2 SASR 529], careless driving causing death is not merely a different way of committing the offence of careless driving in the accompanying culpable circumstances set out in s 45(3)(b). Recognising as separate offences, careless driving, careless driving causing death or serious injury and careless driving in culpable circumstances provides consistency with the group of offences of reckless driving, reckless driving causing death or serious injury and aggravated reckless driving causing death (section 46 of the Road Traffic Act 1961; s 19A of the Criminal Law Consolidation Act 1935 (SA)). Further, it is to be observed that it is unlikely that parliament intended a single act of driving to be punishable several times over if more than one of the aggravating circumstances in s 45(3)(b) were proved.
As will be apparent, the question is always one of construction. The words used by the legislature will reveal either an intention that separate offences are created or an intention that the existence of a particular circumstance must increase the available punishment, but will not alter the nature of the offence: Kingswell (276, 280). The distinction may be fine, but it has been entrenched by the High Court in Kingswell, Meaton and Cheng. Moreover, given what was said by the majority in Kingswell, and again in Meaton and Cheng, the existence of a practice that requires the offender to be charged with, and convicted of, the aggravated offence is not necessarily determinative of the issue. That is not altered by the fact that, in this state, the practice is imposed by legislation. As I have said, the legislation imposes a procedural requirement of general application: s 7(3) of the Sentencing Act.
In the present case it seems to me that the preferable construction of s 59 of the RTA, read with s 59B, is that there is one offence of dangerous driving occasioning death or grievous bodily harm to another person in either of the circumstances provided for by subsections 59(1)(a) and 59(1)(b), the penalty for which varies, depending upon other circumstances that do not alter the nature of the offence concerned. The position under s 59 and s 59B is more akin to that considered in Kingswell and Hietanen than it is to that considered in Arthur. That seems to me to be apparent from the fact that s 59(1) provides that, if the elements of the offence described in that section are present, the driver 'commits a crime and is liable to the penalty in subsection (3)'. Subsection (3) then provides for the penalty to which a 'person convicted on indictment of an offence against this section is liable' (my italics). That penalty varies depending upon:
(a)whether the dangerous driving constituted an offence against subsection (1)(a) or subsection (1)(b); and
(b)if against subsection (1)(b), whether it was or was not committed in circumstances of aggravation; and
(c)in either case, whether death or bodily harm was occasioned in the incident.
Consequently, if the only changes to the sections had been those that altered the circumstances of aggravation, I would have been disinclined to find that the offences of which the respondent was convicted were newly created during the operation of the transitional provisions.
Ground 3
The complaint made by the appellant in ground 3 is directed to reliance that was placed by the sentencing judge on Taylor. I have said that, in adopting a starting point of 4 years' imprisonment, she was influenced by what was said in each of Taylor and Stebbings. In Taylor, there had been a late plea of guilty. This was specifically taken into account as one of a number of mitigating factors warranting a 25% reduction from the starting sentence. The outcome in that case was that a sentence of 4 years' imprisonment was imposed for each count of manslaughter. Counsel for the respondent contends that, by relying upon Taylor, the sentencing judge in the present case effectively gave the respondent a double discount for his plea of guilty.
It seems to me that counsel for the appellant draws more from the remarks of the sentencing judge than is warranted. What she said was:
As best as I can discern, starting with the authority of Stebbings and taking into account … Taylor, while there is no tariff the starting point here is 4 years on each count.
She did not suggest that she had assumed that Taylor set an appropriate starting point of 4 years' imprisonment. She said only that, in setting that starting point in the present case, she had taken Taylor into account.
Ground 3 has consequently not been made out.
Ground 4
Section 88(4) of the Sentencing Act provides that:
If … a court orders that a term is to be served partly concurrently with another fixed term, the court must specify the period of the other fixed term that is to be served before the partly concurrent term is to begin, but that period must not extend beyond the earliest date on which the offender could be released (whether on parole or not) in relation to the other fixed term.
It was common cause between the parties that the date on which the sentencing judge ordered the 'partly concurrent term' to commence was 7 August 2010 and that this extended beyond the earliest date on which the offender could be released in relation to the other fixed term. It was also common cause that the last‑mentioned date was in fact 7 February 2010 (because the respondent would be eligible for parole 2 years into the 4 years of the 'other fixed term'), 6 months earlier than the date ordered. However, because the court had reservations concerning the accuracy of these propositions, we called for additional submissions from the parties in respect of them. The ground was then abandoned by the appellant. It is unnecessary to say anything further in respect of it.
Ground 5
The sentencing judge made the error contended for by ground 5. She wrongly assumed that the respondent had been married for eight years when he had been married for less than two years. However, the error is inconsequential. What was relevant was that the respondent's marriage had ended in circumstances that had caused him stress. That remains true whether he had been married for eight years or less than two years. There is nothing in the sentencing remarks that suggests that the error had any consequence.
Ground 5 consequently fails.
Grounds 6 and 7
As to ground 6, it is very difficult to make out a ground that contends that a sentencing judge placed undue weight on, or failed adequately to take account of, individual considerations. Sentencing is a discretionary exercise and a failure of that kind will not give rise to an express appealable error unless it was so significant as to lead to the conclusion that the sentencing judge failed to exercise the discretion entrusted to the court: Dinsdalev The Queen [2000] HCA 54; (2000) 202 CLR 321 [26] (Gaudron & Gummow JJ); Mallet v Mallet (1984) 156 CLR 605, 614 (Gibbs CJ); Vagh v The State of Western Australia [2007] WASCA 17 [47] (Roberts-Smith JA), [76] (McLure JA); Scook v The Queen [2008] WASCA 114 [15] (McLure JA); Ponnusamy v The State of Western Australia [2008] WASCA 224 [22] (Wheeler JA, McLure JA concurring); Speering v The State of Western Australia [2008] WASCA 266.
It seems to me that, unless the sentences imposed were manifestly inadequate, there is nothing to suggest that the sentencing judge either placed undue weight on any of the circumstances relied upon or that she overlooked, or failed adequately to take into account, any other circumstances. It is true, as counsel for the appellant pointed out, that she did not refer to the need for deterrence. However, I am not persuaded that this is a sufficient basis upon which to infer that this obvious consideration had escaped the attention of so experienced a sentencing judge.
That leaves the question, relevant to each of grounds 6 and 7, whether the sentences imposed were manifestly inadequate. In considering that question, it is necessary to bear in mind that an appellate court may not substitute its own opinion for that of the sentencing judge merely because it would have exercised its discretion in a different way. In Dinsdale [58], Kirby J said:
Because the imposition of a sentence involves the exercise of judgment and evaluation upon which minds can differ, it bears close similarities to the making of a discretionary decision. Like such a decision, if properly imposed, a sentence will not be disturbed on appeal merely because the appellate court would have reached a different result had the responsibility of sentencing belonged to it … As in the case of appellate review of a discretionary decision, a brake is imposed upon undue appellate disturbance of primary decisions (and unwarranted appeals seeking that relief) by the necessity to identify an error that justifies and authorises appellate intervention.
Because this appeal was commenced prior to the operation of the amended s 41(4)(b) of the Criminal Appeals Act 2004 (WA), which did away with the so‑called 'double jeopardy' principle (the new section came into operation on 27 April 2008), the principle remains applicable: The State of Western Australia v Richards [2008] WASCA 134. That principle, and other principles bearing upon prosecution appeals, have been summarised in The State of Western Australia v Houston [2005] WASCA 167 [52] ‑ [54] and The State of Western Australia v Collier [2007] WASCA 250; (2007) 178 A Crim R 310 [18] ‑ [23]. It is unnecessary to repeat what was there said.
In determining whether a sentence is manifestly inadequate or manifestly excessive the court must view it in the perspective of the maximum sentence prescribed by law for the crime, the standards of sentencing customarily observed with respect to the crime, the place which the criminal conduct occupies on a scale of seriousness of crimes of that type and the personal circumstances of the offender: Chan v The Queen (1989) 38 A Crim R 337, 342 (Malcolm CJ).
As will be apparent from the provisions of s 59(3)(a)(i), quoted above, the maximum sentence for a conviction, on indictment, of dangerous driving occasioning death is 20 years' imprisonment if the offence is committed in circumstances of aggravation (as the present offences were, the respondent having exceeded the applicable speed limit by more than 45 km per hour: s 59B(3)(b)).
When assessing the place which the criminal conduct occupies on a scale of seriousness of crimes of this type, it must be remembered that the relevant category, for sentencing purposes, is one of dangerous driving occasioning death in aggravated circumstances. That is a category in which all offences will inevitably be serious. In this case, the speed at which the offender was driving (between 53 km and 61 km over the speed limit) was the aggravating factor. The appellant must have been aware of the increased danger that he presented to other road users as a consequence of it. Also, the incident resulted in the death of two people. However, unlike some of the other cases to which I have referred, the respondent had not consumed any substances that were likely to impair his ability to drive or his judgment. Also, he made early pleas of guilty and has shown genuine remorse.
There is nothing particularly unusual about the respondent's personal circumstances. While his antecedents were generally favourable, he had, as I have mentioned, twice lost his driver's licence on account of demerit suspensions. He was reasonably young. However, at age 28 he should have demonstrated much better judgment than he did. The principal factors in mitigation are his undoubted remorse, his early plea of guilty and the serious consequences that this offence has already caused him.
That leaves customary standards of sentencing. McLure JA has said, in Eves v The State of Western Australia [2008] WASCA 7; (2008) 49 MVR 259, that sentences imposed for motor vehicle manslaughter are not directly comparable to sentences for dangerous driving causing death contrary to s 59(1)(b) of the RTA. That is plainly correct when the offences are committed in the absence of circumstances of aggravation (as each offence was in Eves). The maximum penalty for manslaughter is 20 years' imprisonment, whereas that for breach of s 59(1)(b), in the absence of circumstances of aggravation, was at the relevant time 4 years' imprisonment (it is now 10 years' imprisonment). However, the legislature has seen fit to equate the maximum sentence for manslaughter and that for dangerous driving occasioning death in circumstances of aggravation, notwithstanding the different standards of fault: see, in this respect, the comments made by McLure JA in Eves [34]. It consequently seems to me that manslaughter cases are of some assistance when considering standards of sentencing in a case of the present kind.
Sentences imposed on offenders for motor vehicle manslaughter were reviewed by Buss JA in Penny v The State of Western Australia [2006] WASCA 173; (2006) 33 WAR 48. The sentences in the cases reviewed by him ranged from 3 years' imprisonment to 10 years' imprisonment. All of those sentences were imposed prior to the operation of the transitional provisions, giving rise to equivalent sentences, allowing for the operation of those provisions, of between 2 years' imprisonment and 6 years and 8 months' imprisonment. There were only two cases in which sentences of 10 years' imprisonment were imposed, being Punch v The Queen (1993) 9 WAR 486 and White v The Queen [2003] WASCA 197; (2003) 39 MVR 157.
In Penny itself, a sentence of 8 years' imprisonment (after applying the transitional provisions) was imposed for an offence of manslaughter. The sentence was upheld on appeal. However, that was an especially bad case. It involved a police chase, the 25‑year‑old offender having been driving a stolen car. In the course of the chase, the offender drove at high speed. He also drove through a wooden barrier at the end of a cul‑de‑sac, failed to stop at a stop sign, mounted a kerb and drove on a footpath before colliding with mesh fencing and a tree, killing his 18‑year‑old passenger. The offender had no driver's licence and he had been using cannabis. The offences were committed some three weeks after the offender had been released on parole for an earlier offence of stealing a car and driving it recklessly. The earlier offence was committed when the offender was on bail for yet another offence of reckless driving for which the offender had been imprisoned. All of these offences involved police chases. The offender also had a prior conviction for robbery and unlawful wounding.
Buss JA did not include Kay v The Queen [2004] WASCA 222; (2004) 42 MVR 130 in his review of the relevant cases, no doubt because it was not a manslaughter case. However, it is relevant for present purposes. In that case, the offender was convicted, after a trial, on two counts of dangerous driving causing death and one of dangerous driving causing grievous bodily harm. He was also dealt with under s 32 of the Sentencing Act on a Petty Sessions charge of dangerous driving causing bodily harm. All four charges arose out of a motor vehicle accident in Merredin.
The offender had been driving a road train. A sedan had stopped at a railway crossing. The offender drove his road train into the back of the sedan, pushing it into a goods train with sufficient force to detach and overturn the train engine. Two passengers in the sedan were killed and one suffered bodily harm. A passenger in the road train suffered grievous bodily harm. At the time of the collision, and prior to it, the railway crossing lights had been activated. The train driver had sounded the horn of the train some 200 m before the crossing and again about 50 m before it, for about five or six seconds each time. Just under a kilometre from the point of collision, the road train had been driving with a 71.6% throttle. However, 258 m from the point of impact, the road train was driven at full throttle (although then still just under the 70 km per hour speed limit). The offender braked only 15 seconds prior to the collision.
The offender had prior convictions for careless driving and for dangerous driving causing bodily harm. He had numerous convictions for speeding. This was the third occasion upon which he had struck the rear of other vehicles while driving road trains. There were few mitigating factors. There was some remorse and the offender was able to produce favourable references.
After a successful appeal, the offender was sentenced to a term of 2 years and 4 months' imprisonment on each of the counts of dangerous driving causing death, a term of 1 year and 4 months' imprisonment in respect of the count of dangerous driving causing grievous bodily harm and a term of 8 months' imprisonment in respect of the charge of dangerous driving causing bodily harm. The sentences imposed on the first three charges were ordered to be served cumulatively. The sentence imposed on the fourth charge was ordered to be served concurrently. This gave rise to a total term of 6 years' imprisonment.
In Eves, the appellant was convicted after a trial on three counts of dangerous driving causing death contrary to s 59(1)(b) of the RTA. He was sentenced to a term of 1 year and 8 months' imprisonment for each offence. The sentences were ordered to be served cumulatively, resulting in a total effective sentence of 5 years' imprisonment (7 years and 6 months' imprisonment before taking into account the transitional provisions). The offender had been driving a utility, attached to which was a large trailer. He was observed to be swerving from side to side on the road. The driver of a following vehicle (a van) attempted to attract the offender's attention so as to get him to pull over. He was unsuccessful. The driver of the van dropped back so as to be some 90 m behind the offender. The offender continued to drive erratically and his trailer moved to a point 1 m over the midline on the road. An oncoming car (a Sigma sedan) struck the trailer, causing the Sigma to rotate onto the wrong side of the road, hitting the van. The Sigma exploded into flames, killing both of its occupants. The driver of the van was also killed. His son, who was a passenger, was injured. The offender, who was 29 years old, had driven erratically because he was tired and unwell. He had been convicted of prior motor vehicle offences, but not since the age of 21.
The offender's appeal was successful. The court considered that the individual sentences imposed were appropriate, but the majority (Steytler P & McLure JA, Miller JA dissenting) ordered that the sentence on count 2 commence 10 months after the commencement of the sentence on count 1 and that the sentence on count 3 commence 10 months after the commencement of the sentence on count 2, resulting in a total effective sentence of 3 years and 4 months' imprisonment (5 years before the operation of the transitional provisions). These changes were made in order to avoid multiple punishments for the common element of each offence (the same episode of dangerous driving) and to take into account the principle of totality. The offender had been disqualified from holding a motor vehicle driver's licence for a period of 2 years on each count, giving rise to a total period of 6 years.
In Taylor, the offender pleaded guilty to five counts of manslaughter. He was sentenced, on each count, to a term of 4 years' imprisonment. Two of those sentences were ordered to be served cumulatively and the rest concurrently, giving rise to a total term of 8 years' imprisonment (12 years prior to the operation of transitional provisions).
The offender had been driving down Beach Road in Mirrabooka. Notwithstanding a 70 km per hour speed limit, he was travelling at somewhere between 110 km and 130 km per hour. He had taken amphetamines and cannabis. A second car was entering Beach Road from another street. The offender's car struck the second car, killing its occupants. Had the offender been driving at the speed limit, the collision would not have occurred. The sentencing judge was satisfied that the offender was not so affected by the drugs that he had consumed as to be incapable of controlling his vehicle. However, he concluded that the offender was motivated by the effect of the drugs to drive at speed and to take risks, and had a diminished ability to assess risks and make safe judgments in hazardous situations. The offender had a limited record for driving offences and was genuinely remorseful, albeit his pleas of guilty were late. He was no longer using drugs. He was 19 years old at the time of the offences.
The offender's appeal was dismissed. Miller JA, with whom Owen and Wheeler JJA agreed, said that the case should 'serve as a clear indication that sentences in excess of 10 or even 12 years (pre‑transitional) for motor vehicle 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 of offences of that type'.
When regard is had for the customary standards of sentencing as they appear from the cases to which I have referred, and taking into account the maximum penalty provided by the legislature, the place which these offences occupy on a scale of seriousness of crimes of this type and the personal circumstances of the respondent (including his pleas of guilty), it seems to me that the sentences imposed by the sentencing judge, viewed individually or in total, cannot be said to be so manifestly inadequate as to justify intervention on a State appeal. I am consequently not prepared to uphold either of grounds 6 and 7.
Ground 8 - the period of disqualification
Section 59(3) of the RTA requires a court convicting an offender of an offence under s 59 to impose a mandatory motor driver's licence disqualification for a period of not less than 2 years. In Kay, the court held that, in cases in which there is more than one offence involving a mandatory disqualification, separate disqualifications for each offence should be imposed. Consequently, the imposition of a single period of 2 years' disqualification in the present case was an error.
In Kay, a life disqualification was imposed. The Court of Criminal Appeal considered that this was appropriate. It imposed a similar disqualification in respect of the second offence of dangerous driving causing death. Although this made no difference, it also imposed a disqualification for 10 years in respect of the offence of dangerous driving causing grievous bodily harm and one for 5 years in respect of the offence of dangerous driving causing bodily harm.
In the present case, no good purpose would be served by disqualification for life. The respondent is still relatively young. He has learned a very hard lesson. His undoubted remorse makes it unlikely that he will re‑offend. However, in my opinion he should be off the road for a substantial period. Taking into account, again, the principles applicable to prosecution appeals, I would impose a disqualification for a period of 5 years in respect of each offence, with those terms to be served concurrently: s 105(2) of the Sentencing Act. Because the period of disqualification commences only after the respondent has served the term of imprisonment imposed upon him (s 103(1) of the Sentencing Act), he will, by the time the disqualification expires, have been off the road for a very substantial period.
Conclusion
I would allow the appeal only in respect of ground 8. The sentences imposed by the sentencing judge should stand, save for the order for disqualification, which should be set aside. In lieu, the respondent's driver's licence should be disqualified, in respect of each count, for a
period of 5 years. The second period of disqualification should operate concurrently with the first.
McLURE JA: I wish to reserve my position on the question whether the amendments made by the Road Traffic Amendment (Dangerous Driving) Act 2004 (WA) relating to the circumstances of aggravation fall within cl 5(a) of Sch 1 of the Sentencing Legislation Amendment and Repeal Act 2003 (WA). Otherwise, I agree with the orders proposed by the President for the reasons he gives.
MILLER JA: I have had the opportunity of reading in draft the reasons for judgment of Steytler P. I agree with those reasons in relation to grounds 1 ‑ 5 of the grounds of appeal, but I have a different view in relation to grounds 6, 7 and 8. I consider the sentences imposed by the sentencing judge to be manifestly inadequate in that the aggregate sentence of 4 years 6 months for the two counts of dangerous driving occasioning death was manifestly inadequate. I consider also that the period of disqualification of the respondent's motor driver's licence should be much greater than that to which Steytler P would increase it.
Grounds 6 and 7
Ground 6 contends that the sentencing judge erred in law by placing undue weight on the respondent's personal circumstances and prospects of rehabilitation rather than the need for a sentence which reflected the principles of personal and general deterrence. Particulars which are annexed to the ground contend that the discount of 25% for the early plea of guilty was excessive in the circumstances; weight was given to the respondent's remorseful conduct after the offences without the particulars of that conduct being identified; and undue weight was given to the consequences of depressive illness and illicit drug use upon the respondent following the offences.
I respectfully agree with Steytler P that it is difficult to make out a ground that contends that a sentencing judge placed undue weight on, or failed adequately to take account of individual considerations: Vagh v The State of Western Australia [2007] WASCA 17 per McLure JA at [76]; Keating v The State of Western Australia [2007] WASCA 98 per Steytler P and McLure JA at [27] ‑ [28]. In short, failure to give adequate weight to a relevant sentencing consideration will only give rise to an appealable error if it amounts to a failure to exercise the discretion entrusted to the court.
That brings me to ground 7 of the grounds of appeal, which is expressed in the alternative. It contends that the sentences imposed by the sentencing judge were 'so inadequate as to manifest error'.
The general principles in relation to an appeal against the exercise of discretion in the sentencing process are those stated in House v The King (1936) 55 CLR 499 by Dixon, Evatt and McTiernan JJ at 504 ‑ 505 to the following effect:
The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.
In Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 the court said:
[A] court of criminal appeal may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing judge exercised his or her discretion. This is basic. The discretion which the law commits to sentencing judges is of vital importance in the administration of our system of criminal justice.
It is also necessary to bear in mind the observations of Steytler P in The State of Western Australia v Higgins [2008] WASCA 157 at [18] where his Honour said:
When considering the adequacy of a sentence, it is necessary to view it in the perspective of the maximum sentence prescribed by law for the crime … the standards of sentencing customarily observed with respect to the crime, the place which the criminal conduct occupies on a scale of seriousness of crimes of that type and the personal circumstances of the offender: R v Chan (1989) 38 A Crim R 337, 342
In the present case, Steytler P has reviewed a number of cases that deal with the customary standards of sentencing for cases of motor vehicle manslaughter and cases of dangerous driving causing death (now dangerous driving occasioning death). I will not repeat that review. I respectfully agree that manslaughter cases are of assistance when considering standards of sentencing in a case of dangerous driving occasioning death in circumstances of aggravation. The maximum penalties are the same for each offence (20 years' imprisonment).
I would refer only to Taylor v The State of Western Australia [2007] WASCA 218; (2007) 48 MVR 562. In that case, an appeal against an aggregate sentence of 8 years' imprisonment imposed upon the appellant after conviction of five counts of manslaughter was dismissed. It was a case in which the appellant had pleaded guilty to all counts, but it was a particularly serious case because the appellant caused five fatalities in circumstances in which he drove at a grossly excessive speed on a public road, and whilst he was affected by a combination of drugs. In that case I expressed the view (at [46] and [54]) that comparable sentences in motor vehicle manslaughter cases tend to show that the courts have not always valued human life as highly as the legislature and sentences in these cases do need to reflect that value. In making those observations, I placed particular reliance on what had been said by Buchanan JA in R v Bangard [2005] VSCA 313; (2005) 13 VR 146 [12].
In Taylor I did also say (Owen and Wheeler JJA concurring) at [54]) in relation to sentences in motor vehicle manslaughter cases:
This case should also serve as a clear indication that sentences in excess of 10 or even 12 years (pre-transitional) for motor vehicle 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.
This is not a case of manslaughter, but it is one of dangerous driving occasioning death in circumstances of aggravation, where the maximum applicable sentence is now the equivalent of that for manslaughter. What I said in Taylor has application to cases at the upper end of seriousness of dangerous driving occasioning death in circumstances of aggravation.
In my opinion, the provision of a maximum sentence of 20 years' imprisonment in cases where death has been occasioned in circumstances of aggravation is an indication that the legislature is truly endeavouring to reflect the value which is to be placed upon human life. Whilst all other sentencing considerations are always relevant, this issue (the value to be placed upon human life) is of particular consideration in cases of motor vehicle manslaughter and dangerous driving occasioning death. It is, in my opinion, something that needs to be reflected in the sentences to be imposed in the present case.
In some cases, but not in all cases, it will be appropriate to cumulate sentences for multiple counts of either manslaughter or dangerous driving occasioning death: Taylor per Miller JA (Owen and Wheeler JJA agreeing) at [50]; Longbottom v The State of Western Australia [2008] WASCA 203; (2008) 51 MVR 224 per Wheeler JA at [60]; Miller JA at [97] (and see Steytler P at [9] agreeing that there is no inflexible rule in the matter). In the present case, there are grounds for partial cumulation rather than total cumulation of sentence.
The sentencing judge imposed upon the respondent sentences of 3 years' imprisonment on each count of dangerous driving occasioning death. Her Honour then ordered that the sentence imposed on count 2 should commence 18 months after the commencement of the sentence imposed on count 1, resulting in a total effective sentence of 4 years 6 months' imprisonment.
Although I consider that partial cumulation of sentence was appropriate in the present case, in my opinion, the aggregate sentence of 4 years 6 months' imprisonment was manifestly inadequate in the circumstances of this case.
The facts
Steytler P has outlined the circumstances of the offences. They were stated in more detail by the prosecutor who appeared before the sentencing judge. The respondent was involved in a motor vehicle collision which occurred at about 2.40 pm on 10 May 2007 on the Tonkin Highway near the Redcliffe Bridge in Ascot. The Tonkin Highway is there a two lane carriageway with the opposing lanes separated by a concrete barrier. Northbound lanes of the highway have provision for two lanes of traffic and those lanes are separated by a broken white line. Immediately prior to the scene of the collision there was a slight incline for northbound traffic on Tonkin Highway.
The Tonkin Highway passes below the Great Eastern Highway overpass only a short distance to the south of the scene of the collision. There is a Great Eastern Highway on‑ramp which merges with the left northbound lane of Tonkin Highway near the point where the collision occurred. The speed limit on the Tonkin Highway at this point is 100 km per hour.
The respondent was driving a Toyota Lexcen sedan in a northerly direction on Tonkin Highway and in the centre lane (ie in the lane nearest to the concrete barrier). Witnesses described his driving as erratic and his speed as excessive. As the respondent passed below the Great Eastern Highway overpass he drove his vehicle over a series of data collection strips on the carriage way. They recorded his speed at 161 km per hour.
As the respondent continued along Tonkin Highway he was approaching from the rear a Kawasaki motorcycle which was also travelling north on the Tonkin Highway. It was in the left hand lane. It was ridden by Gerald Vance with his wife Yoke Vance riding as a passenger on the motorcycle. Mr Vance indicated his intention to move into the right hand lane and he did so, placing himself in that laneway and travelling at a proper speed. The respondent was travelling so fast as to be unable to avoid running into the back of the motorcycle. He attempted to brake but collided with the rear of the motorcycle with such force as to embed it in the left front of his vehicle.
The impact between the respondent's vehicle and the motorcycle threw Mr and Mrs Vance onto the bonnet of the respondent's vehicle. Notwithstanding that it was under heavy braking, it continued north along the Tonkin Highway, throwing both Mr and Mrs Vance from the bonnet onto the carriageway. Mrs Vance rolled under the respondent's vehicle and her body was dragged along the carriageway to the point where the vehicle eventually stopped.
The respondent's vehicle left a total of 150 m of skid marks on the carriage way. The examination of the scene by police investigators led to what was described as 'a minimum calculated speed' of the respondent's vehicle at the commencement of the skid marks of 153 km per hour. Accordingly, it can be said that the speed at which the respondent was travelling immediately prior to the collision was between 150 and 161 km per hour.
Mrs Vance died at the scene of the accident. Mr Vance was still alive and was taken by St John Ambulance to hospital. He later died as a result of injuries he received. Post‑mortem examination revealed the cause of death of Mr Vance to be head and chest injuries and Mrs Vance to be chest and abdominal injuries.
Police investigations revealed no defects in the respondent's vehicle which could have contributed to the collision. Road conditions at the time of the collision were dry, weather was clear and there was good visibility. The roadway was of good bitumen material with no loose material or potholes that could in any way have contributed to the collision that occurred.
Submissions for the respondent on sentence
Counsel for the respondent conceded at the sentencing hearing that the speed at which the respondent's vehicle was driven was 'somewhere between 53 [sic 153] and 61 [sic 161] km per hour. He said 'that seems to be the range with which some certainty can be derived'.
This is at odds with what the respondent said in a pre‑sentence report, when he disputed the speed which had been indicated in a statement of material facts served upon him by the police. He also disputed that he had driven in an erratic manner. He could give no reason for having exceeded the speed limit and contended that he 'simply had failed to notice how fast he had been travelling'.
The respondent's counsel conceded that the speed at which the vehicle was travelling was the aggravating factor and (not surprisingly) said that he did not 'intend to dwell too long' on that fact.
Counsel for the respondent placed emphasis upon the respondent's development of post‑traumatic stress disorder following the collision. For this he required a variety of anti‑psychotic, and anti‑depressant medications. It was contended that his 'feelings of anguish' caused him to have recourse to illicit drugs in consequence of which he began to use methylamphetamine. He had no prior convictions of any relevance, but he had lost his motor driver's licence on two occasions by reason of demerit suspensions. He was at the time of sentencing a sentenced prisoner by reason of a conviction recorded on 7 February 2008 for the offence of possession with intent to sell or supply of a prohibited drug. He was sentenced to 12 months' imprisonment for that offence.
Counsel submitted that the respondent's marriage had broken down in consequence of the collision and there was now no possibility of any reconciliation of the marriage. He had lost his business and his life had been 'completely tipped upside down'.
It was also submitted that the respondent had remained at the scene of the collision to render whatever assistance he could. He was said to have been 'very distraught' and it was said that he had cooperated fully with police in relation to their enquiries.
Sentencing
The sentencing judge outlined the facts of the case, stating that the respondent's speed had been estimated at 153 km per hour and that there was evidence that he had been travelling at dangerously high speeds before the collision itself. In fact, the evidence established a range of speed between 153 and 161 km per hour.
The sentencing judge described the respondent's actions as 'inexplicable' pointing out that there were no drugs or alcohol involved, no defect in the vehicle, no high speed chase and the respondent was the holder of a valid driver's licence.
The sentencing judge placed emphasis upon the fact that the respondent had remained at the scene and had been greatly distressed by the collision. She made reference to matters personal to the respondent noting that prior to the collision he had been married and running his own business; that he had demonstrated remorse; that he had pleaded guilty at an early time; and that the accident had had a devastating impact on him. Reference was made to a number of references which had been provided by family and friends. They all spoke highly of the respondent. Reference was also made to the commencement by the respondent of a new relationship with a partner who had two small children. She was pregnant with the respondent's child.
The sentencing judge made the observation that 'all human life is sacred and therefore priceless' and said she would not presume to put a value on human life. She added that sentencing was 'not simply between the victim and the offender, but between the whole community … the whole community as a community and as taxpayers. It is not in the community's interest that you be destroyed'. The sentencing judge appreciated that a lengthy term of imprisonment was required, but in my opinion, her Honour failed to impose what could properly be described as a 'lengthy term' of imprisonment. The aggregate sentence of 4 years 6 months' imprisonment, to be served cumulatively upon the sentence being served by the respondent, did not, in my view, sufficiently mark out the seriousness of the offence. For that reason I consider that the aggregate sentence imposed was manifestly inadequate in all the circumstances of the case.
A proper sentence
In the present case, the sentences to be imposed upon the respondent must take account of 'the transitional provisions' meaning the Sentencing Legislation Amendment and Repeal Act 2003 (WA) transitional provisions contained within sch 1, cl 2. Those provisions are to be repealed with effect from 14 January 2009 and thereafter it will be open to a court sentencing an offender to a fixed term to impose a penalty up to the statutory penalty for the offence (Sentencing Legislation (Transitional Provisions) Amendment Act 2008 (WA) s 3A(4)).
In my opinion, a 'pre‑transitional' sentence of 6 years' imprisonment was required on each count on which the respondent was convicted. Such a sentence takes full account of the circumstances of the collision and all personal factors relevant to the respondent. Apart from the respondent's plea of guilty, remorse and lack of prior convictions for any serious traffic offence, his personal circumstances were relatively unremarkable. That is not surprising, as persons charged with motor vehicle manslaughter or dangerous driving occasioning death often have unremarkable antecedents.
In the present case, the aggravating aspect of the motor vehicle accident in which the respondent was involved was the grossly excessive speed at which he was driving. It was more than 45 km per hour above the speed limit (53 ‑ 61 km per hour above that limit) and constituted the aggravating circumstance contained within s 59B(3)(b) of the Road Traffic Act 1974 (WA).
A speed of between 153 and 161 km per hour on a public highway on a busy weekday afternoon is a colossal speed. Not only was the respondent travelling at that speed at or immediately before the collision, but he was observed by others to have been driving erratically on the roadway as he approached the scene of the collision. Speeds between 50 and 60 km per hour above the speed limit cannot be tolerated on public roads. The dangers to other road users are obvious.
The consequences of the fatal accident in which the respondent was involved were horrific. Mr and Mrs Vance were both killed, one instantly and one shortly after the collision. The victim impact statements of their relatives speak eloquently of the suffering and grief sustained by each of them. The victim impact statement of Adrian Vance describes the respondent's behaviour as akin to playing 'Russian roulette' on a public highway and this categorisation of the respondent's driving is not without substance.
After application of the transitional provisions, I would impose sentences of 4 years' imprisonment on each count. Because the 'double jeopardy' applies in this case (The State of Western Australia v Richards [2008] WASCA 134), a further reduction in each term to one of 3 years 6 months' imprisonment would be appropriate. The first of these terms should be served cumulatively upon the term of 12 months' imprisonment already being served by the respondent.
I would order the second term to be served partly concurrently with the first. Total cumulation would lead to a sentence of 7 years' imprisonment which would equate to 10 years 6 months in pre‑transitional terms and that would be an excessive term in the circumstances of the present case.
I consider that the second term should commence after 21 months' imprisonment in respect of the first count has been served. That would give a total term of 5 years 3 months' imprisonment, which equates to approximately 7 years 11 months in pre‑transitional terms. It must be served cumulatively upon the sentence of 12 months' imprisonment previously imposed upon the respondent.
In my opinion, a sentence of 5 years 3 months' imprisonment properly marks out the gravity of the offences committed by the respondent in the present case. The sentence takes full account of all matters personal to the respondent and to the pleas of guilty which he entered in respect of each count. It also attempts to reflect the value placed upon human life by the legislature (Taylor per Miller JA at [54]; R v Bangard per Buchanan J at [12]).
Disqualification of licence
In Kay v The Queen [2004] WASCA 222, an appeal against life disqualification of a motor driver's licence was dismissed. As Steytler P has pointed out at [64] ‑ [65] the case was a bad one for a number of reasons. The offender was convicted after trial of two counts of dangerous driving causing death and one of dangerous driving causing grievous bodily harm. He was also dealt with under s 32 of the Sentencing Act1995 (WA) on a Petty Sessions charge of dangerous driving causing bodily harm. He drove a heavily laden road train into the rear of a sedan which was stationary at a level crossing, killing two passengers in the sedan and causing one to suffer bodily harm. A passenger in the road train he was driving sustained grievous bodily harm. The offender had prior convictions for careless driving and for dangerous driving causing bodily harm. He had numerous convictions for speeding and he had, on a number of occasions, struck the rear of other vehicles whilst driving road trains. The Court of Criminal Appeal (Murray, Wheeler and Miller JJ) dismissed an appeal against life disqualification of licence. Miller J (Murray and Wheeler JJ agreeing) said:
… In my opinion, disqualification for life was appropriate for the offences of dangerous driving causing death. The offences were in the worst category and having regard to the applicant's record of convictions, which included a previous conviction for dangerous driving causing bodily harm when his motor driver's licence was disqualified for a period of 12 months, I am unpersuaded that a disqualification for life was grossly excessive. The disqualifications should, in my view, have been for life in relation to counts 1 and 2 on the indictment, for 10 years on count 3 on the indictment and for 5 years on the s 32 matter. As a disqualification for life on any offence means exactly what it says, the other disqualifications are academic, but should necessarily have been imposed under the provisions of s 59 and s 59A of the Act. [71]
In the present case, the sentencing judge imposed a single period of 2 years' disqualification. As Steytler P has identified at [73], this was clearly in error.
Steytler P has said, at [75], that in the present case no good purpose would be served by disqualification for life. His Honour has identified the fact that the respondent is still relatively young, has learned a very hard lesson and has undoubted remorse which makes it unlikely that he will reoffend. He had no prior convictions of any significance, but had lost his driver's licence on two previous occasions by reason of demerit disqualifications.
Although Steytler P considers that a period of disqualification of 5 years in respect of each offence would be an appropriate penalty, I consider that the respondent should be off the road for a longer period than that. In my opinion, periods of disqualification of 7 years 6 months in respect of each count should be imposed. I take account of the 'double jeopardy' principle in increasing the terms which were imposed by the sentencing judge and fixing them at 7 years 6 months in each case. The sentences should be served concurrently (Sentencing Act1995 s 105(2)(a)) and they will not take effect until the respondent has been released from custody (Sentencing Act1995 s 103(1)(a)).
Conclusion
I would allow the appeal, set aside the sentences imposed by the sentencing judge and in lieu thereof impose sentences of 3 years 6 months' imprisonment on each count. The first of those terms should be served cumulatively upon the sentence of 12 months' imprisonment previously imposed upon the respondent and the second of those terms should be served partly concurrently with the first, to commence after the respondent has served 21 months of the term imposed on count 1. The aggregate sentence will, therefore, be 5 years 3 months' imprisonment, cumulative upon the 12 months previously imposed upon the respondent. The respondent should be eligible for parole. The respondent's driver's licence should be disqualified in respect of each count for a period of 7 years 6 months, with the second period of disqualification operating concurrently with the first.
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