The State of Western Australia v Mitchell
[2008] WASC 114
•17 JUNE 2008
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: THE STATE OF WESTERN AUSTRALIA -v- MITCHELL [2008] WASC 114
CORAM: EM HEENAN J
HEARD: 1 MAY 2008
DELIVERED : 17 JUNE 2008
FILE NO/S: INS 26 of 2008
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Prosecution
AND
LUCAS BENJAMIN MITCHELL
Defence
Catchwords:
Criminal law - Sentencing - Manslaughter - Death resulting from motor vehicle accident - Gross intoxication - Driving under suspension and while disqualified - Extreme lack of care - Driving under the influence of alcohol (two charges) - Driving without a driver's licence (two charges) - Reckless driving - Licence disqualification and suspension - Imprisonment
Legislation:
Criminal Code (WA)
Road Traffic Act 1974 (WA)
Sentencing Act 1995 (WA)
Result:
Manslaughter - 6 years' imprisonment
Driving while disqualified - 6 months' imprisonment cumulative and fine of $1,250
Driving under the influence and other offences - 5 x 6 months' imprisonment concurrent
Driver's licence suspended for 11 years
Other concurrent suspensions
Category: A
Representation:
Counsel:
Prosecution : Mr J Mactaggart
Defence: Mr D P A Moen
Solicitors:
Prosecution : Director of Public Prosecutions (WA)
Defence: David Walls & Co
Case(s) referred to in judgment(s):
Abela v The Queen (2002) 134 A Crim R 392
Bruno v The State of Western Australia [2005] WASCA 149
Clinch v The Queen [1999] WASCA 57
D'Amico v The Queen [2002] WASCA 343; (2000) 33 MVR 148
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
Duff v The State of Western Australia [2006] WASCA 37
Eves v The State of Western Australia [2008] WASCA 7
Farmer v The State of Western Australia [2007] WASCA 219
Jarvis v The Queen (1993) 20 WAR 201
Kay v The Queen [2004] WASCA 222
Little v The Queen [2001] WASCA 87
Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665
McKenna v The Queen (1992) 7 WAR 455
Miles v The Queen (1997) 17 WAR 518
Penny v The State of Western Australia [2006] WASCA 173
Punch v The Queen (1993) 9 WAR 486
R v Bangard [2005] VSCA 313; (2005) 13 VR 146
R v S (No 2) (A Child) (1992) 7 WAR 434
R v Stebbings (1990) 4 WAR 538
Radebe v The Queen (2001) 165 FLR 313
Taylor v The State of Western Australia [2007] WASCA 218
The State of Western Australia v Garlett [2007] WASCA 274
Veen v The Queen (No 2) (1987) 164 CLR 465
White v The Queen [2003] WASCA 197; (2003) 39 MVR 157
Wicks v The Queen (1989) 3 WAR 372
EM HEENAN J:
Offences
On 1 May 2008 Lucas Benjamin Mitchell was arraigned before this court on an indictment which charged that on 10 December 2007 at Como he had unlawfully killed Fiona Claire Worts. This charge was for the offence of manslaughter contrary to s 280 and s 287 of the Criminal Code. Mitchell entered a plea of guilty and was thereupon convicted of the offence. The Criminal Code prescribes a penalty of up to 20 years' imprisonment for the crime of manslaughter.
In addition, and pursuant to s 32 of the Sentencing Act 1995 (WA), counsel for Mitchell requested that this court should also deal with other pending charges against him. A list of those charges was duly prepared. There are an additional six charges, namely:
(a)charge 67219/07, that on 10 December 2007 at Como he drove a motor vehicle, registered number (stated), on a road, namely, Kwinana Freeway, whilst under the influence of alcohol to such an extent as to be incapable of having proper control of such vehicle, contrary to s 63(1) of the Road Traffic Act 1974 (WA);
(b)charge number 67220/07, that on 10 December 2007 at Como he drove a motor vehicle, namely, a Ford Falcon utility, registered number (stated), on a road, namely, Kwinana Freeway, without being the holder of an appropriate valid driver's licence for that class of vehicle and whilst legally disentitled to hold a driver's licence, contrary to s 49(1) and s 49(2)(a)(iii) of the Road Traffic Act 1974 (WA);
(c)charge number 66933/07, that on 10 October 2007 at Perth, without reasonable cause, he failed to appear at the Perth Magistrates Court and failed to appear as soon as practicable thereafter, such appearance being a requirement of a bail undertaking entered into by him on 6 October 2007, contrary to s 51(2) of the Bail Act 1982 (WA);
(d)charge number 56902/07, that on 5 October 2007 at Burswood he drove a motor vehicle registered number (stated) on a road, namely, Graham Farmer Freeway, whilst under the influence of alcohol to such an extent as to be incapable of having proper control of such vehicle, contrary to s 63(1) of the Road Traffic Act 1974 (WA);
(e)charge number 56903/07, that on 5 October 2007 at Burswood he drove a motor vehicle, namely, a motor vehicle, registered number (stated), on a road, namely, Graham Farmer Freeway, without being the holder of an appropriate valid driver's licence for that class of vehicle and whilst legally disentitled to hold a driver's licence, contrary to s 49(1) and s 49(2)(a)(iii) of the Road Traffic Act 1974 (WA);
(f)charge number 56904/07, that on 5 October 2007 at Burswood he wilfully drove a motor vehicle, namely, a Ford Falcon utility, registration number (stated), on a road, namely, Graham Farmer Freeway, in a manner that, was having regard to all the circumstances, dangerous to the public or to any person, contrary to s 60(1) of the Road Traffic Act 1974 (WA).
Through his counsel, Mitchell pleaded guilty to each of these additional charges and asked that sentences should be imposed in respect of each of them together with the sentence to be imposed for the offence for which he was indicted. Convictions for each of those offences were also recorded. I shall detail the penalties applicable to each of those offences later in these reasons.
Background facts
This crime of manslaughter involves the tragic death of an innocent young woman who was killed as a result of the grossly negligent driving conduct of the offender in a motor vehicle accident on the Kwinana Freeway near Como, at approximately 10.45 o'clock on the evening of 10 December 2007. Not the tiniest degree of fault or lack of care could be attributed to the deceased, who was simply driving homewards south on the Kwinana Freeway, heading towards Canning Bridge, observing the speed limit of 100 km/h and complying with all the road traffic and vehicle rules. There was a light to reasonable volume of traffic, freely flowing on the freeway at that time. Ms Worts was travelling south in the right‑hand lane of the divided carriageway and would naturally have expected to have a clear and unobstructed road ahead of her.
Quite beyond any reasonable expectation, and after rounding a slight curve, she was faced with an oncoming vehicle driving in the wrong lane towards her at speed. There was no opportunity to avoid a collision; a violent impact resulted, causing her severe and fatal injuries, from which she died very soon afterwards at the scene. Mitchell was the driver of the other vehicle proceeding the wrong way north on this area of one‑way traffic on Perth's major freeway. He had turned onto the freeway by wrongly taking the bus exit lane at Canning Bridge, and had continued driving the wrong way in the face of oncoming traffic for approximately 500 m or so before this dreadful impact. He was heavily intoxicated, and driving without a licence and whilst being disqualified from holding a licence because of a previous drink driving offence. He suffered relatively minor injuries in the accident and has since fully recovered.
At the time of her death, Fiona Claire Worts was aged 26 years and had been born on 29 June 1981. She was a much‑loved member of a loving family and her death has left her parents, sisters and brother devastated by the loss of such a young life full of hope and promise. This grief is shared by members of the extended family and by many friends. This is an irreparable loss and the circumstances of her death must make it extremely difficult for the members of her family to cope with this tragedy and to carry on their lives with the direct knowledge and experience of the impact of such a random, arbitrary, unnecessary and wanton disaster. No family should have to endure such pain.
10 December 2007 was a Monday and on that day Mitchell had begun drinking at about 2.30 pm, some eight hours or more before the fatal collision. He finished work in the city at approximately 2.30 pm and went to the Fenian's Pub in Adelaide Terrace, where he drank two pints of beer, before driving his Ford Falcon utility to a friend's house in Como. There, he drank a further quantity of beer in stubbies, the exact amount is not known, and a shooter of tequila to celebrate his birthday. This continued until some time after 10 pm, by which time it is clear that Mitchell was severely intoxicated. He left his friend's home in Como at about 10.45 pm and drove the Ford Falcon utility west along Canning Highway towards Kwinana Freeway at Canning Bridge. There, he was seen to be driving erratically. A witness, travelling in a car behind him, noticed that he stopped suddenly in the left‑hand lane of Canning Highway, causing the observer to brake heavily. That observer then overtook Mitchell's vehicle and continued west, stopping at the traffic lights at Henley Street. Mitchell followed the observer's vehicle and stopped behind him at that intersection. When the lights changed to green, Mitchell moved off slowly and the observer noticed that his vehicle moved gradually to the left, straddling the broken white line for a short time, before suddenly straightening up and turning back into the right‑hand lane. These two vehicles continued towards the traffic lights at the Kwinana Freeway intersection on Canning Bridge, towards lights which were then showing red. Mitchell was seen to speed up on his approach to the red light and to maintain a constant speed, crossing the white stop line at the same time that the lights changed to green.
Without indicating, Mitchell then made a right‑hand turn into the designated bus exit lane, which is exclusively for buses leaving the southbound lanes of the Kwinana Freeway. There are traffic signs placed at this locality clearly visible to vehicles, advising drivers not to enter the bus exit lane. Mitchell drove down the ramp (the wrong way) and onto the outside southbound lane of Kwinana Freeway, against the flow of the southbound traffic, and then drove north at a speed of about 100 km/h. It was on the sweeping bend, 500 m or so north of Canning Highway that Ms Worts was driving her Nissan Pulsar south in the same lane heading, unexpectedly, towards this errant vehicle.
The front driver's side corner of Mitchell's Ford utility struck the front driver's side of Ms Worts' Nissan Pulsar and continued down the driver's side. The Nissan Pulsar continued a short distance to the left of the carriageway and stopped against the cable guard rail in the emergency stopping lane, while the Ford utility finally came to rest in the outside lane, after making contact with a concrete median barrier. Both vehicles sustained extensive front damage. However, the Nissan sedan also suffered further damage along the length of the driver's side.
Ms Worts suffered multiple head and chest injuries and died at the scene. Mitchell suffered a broken right ankle and other minor injuries, and was taken to Royal Perth Hospital for treatment. He was required to give a blood sample for alcohol analysis and the result of the analysis showed a blood alcohol level of 0.221%, which was calculated to have been 0.205% at the time of the occurrence.
At the time of this offence, Mitchell was driving when disqualified from holding a motor driver's licence. That disqualification was imposed on 13 August 2007 in the Perth Magistrates Court for a period of 5 months for an offence of driving with a blood alcohol level of 0.135%. That is, he was driving while disqualified during the fifth month of that 5‑month period of suspension.
This brings me to the other offences which are the subject of the s 32 notice. These involve offences committed on 10 December 2007: driving under the influence of alcohol and driving without being the holder of a valid driver's licence and while legally disentitled to hold a driver's licence. There are also three other earlier offences committed on 5 October 2007: driving whilst under the influence of alcohol; driving without being the holder of an appropriate valid driver's licence and while legally disentitled to hold such a licence; and reckless driving. All these were committed on 5 October 2007 on the Graham Farmer Freeway. For those charges, Mitchell had been bailed to appear before the Magistrates Court at Perth on 10 October 2007 to answer the charges, but without reasonable cause, failed to appear at the court on that date, or as soon as practicable thereafter, contrary to the requirements of his bail undertaking. That constitutes the fourth charge under the s 32 notice.
To put these offences in their proper chronology, one sees that there have been three drink driving offences, all involving conduct requiring suspension of the offender's driver's licence and disqualification for substantial periods. The first occurred on 22 July 2007, leading to a 5‑month suspension and disqualification imposed in the Magistrates Court on 13 August 2007 (blood alcohol level 0.135%). After that conviction, and whilst under suspension, there were three further offences committed on 5 October 2007 (drunken driving, blood alcohol level 0.184%; driving without a valid driver's licence and while legally disentitled to hold a driver's licence; and dangerous driving), following which Mitchell failed to answer his bail on 10 October 2007 or within a reasonable time thereafter. While those three charges were still pending and a warrant had been issued for Mitchell's arrest for failing to answer bail, he was driving again on 10 December 2007, the date of the fatal accident, and his conduct that evening resulted in two further charges of drunken driving and driving without holding an appropriate valid driver's licence and whilst legally disentitled to hold such a licence. On this occasion, the blood alcohol level was 0.221% - or at offence 0.205%.
He was taken into custody in relation to the traffic offences on 11 December 2007, but the manslaughter charge was preferred later. He was remanded in custody on that charge on 24 December 2007. He has, therefore, been in custody since 11 December 2007 and counsel for the State DPP acknowledged that any sentence or sentences of imprisonment should be backdated to operate from 11 December 2007.
There is an issue over whether or not Mitchell's utility had its headlights on at the time of the accident. Two witnesses, in another car heading south on the freeway, saw the utility drive north, the wrong way down the bus ramp and said that it was not showing headlights and, at the most, parking lights. However, another driver, also driving south on the freeway a few seconds before the accident, saw the car come down the bus ramp, and said that he did see a set of headlights. A fourth driver, travelling in the same direction, also saw the vehicle come down the exit ramp, but did not notice that the headlights were off, thinking that he would have done so if they had been. The impact occurred at about 10.55 pm.
One of the first persons to stop at the wreckage of the white Pulsar was a motorcyclist who went to try and assist the driver. However, even to his limited lack of medical knowledge, it was apparent that she was dead. It is almost certain that she was killed instantly. A subsequent detailed examination of the offender's vehicle was conducted by police, but this was inconclusive on the question of whether or not the front headlights had been on at the time of the impact.
The observations in this regard are equivocal and do not support any finding that the headlights were either on or off. Although it was submitted by counsel for the prosecution that Mitchell must have been driving without his headlights on at the time of the impact, and that this signified an even grosser degree of negligence. I am not satisfied that I can make any such finding. Three witnesses positively deposed that the vehicle did have its headlights on. The ambulance officer who observed the vehicle while it was driving in Canning Highway before it turned onto the freeway, said nothing about the absence of headlights when it is probable that had the vehicle been without lights, he would have noticed this and remarked upon it. I shall, therefore, proceed on the assumption that the vehicle was showing headlights, but, against the entire background of dangerous culpable driving, this particular issue is of very little significance. The offender's conduct was so dangerous and grossly negligent that even such an additional lack of care could scarcely make it significantly worse.
General sentencing principles
It is important that I expressly recognise the principles which apply and explain these to you in terms which I hope you will be able to understand. Under s 6 of the Sentencing Act, I must impose a sentence which is commensurate with the seriousness of your offences. The seriousness of the offences is to be determined by taking into account the statutory penalties which, as I have already identified in respect of the charge of manslaughter, is a maximum of 20 years' imprisonment; the circumstances of the commission of the offences, including the vulnerability of the victim of the offence, and I will say more about that later. I must also consider any aggravating factors, and any mitigating factors. Importantly, the law requires that I do not impose a sentence or sentences of imprisonment unless I decide that the seriousness of the offence or offences is or are such that only imprisonment can be justified, or that the protection of the community requires this.
In this case, counsel for the prosecution has submitted, and I consider correctly and inevitably, and your own counsel has acknowledged, that the seriousness of this offence of manslaughter is one which results in the only appropriate form of punishment being imprisonment. That follows from the serious consequences resulting in the death of Ms Worts and, as I will describe in more detail shortly, the gross neglect and carelessness in your manner of driving on the night in question and over the months leading to the commission of this offence. I have no doubt that, in your case, the protection of the community requires the imposition of a term of imprisonment in order to deal with the threat of danger which you pose if free to drive, because of the need for you to be deterred from any kind of similar conduct in the future and because of the need of general deterrence to the public at large against the commission of such unlawful conduct.
To return to the principles of sentencing, as already stated, I am required to consider aggravating factors or mitigating factors. Aggravating factors are those which increase the culpability of the offender. However, I should point out that an offence is not aggravated by the fact of a previous criminal record of another driving offence in the period leading to this fatal accident. However, the fact that you were driving whilst suspended and that you were in breach of a bail undertaking imposed in relation to an earlier charge does, in my view, show the serious disregard of the law and I regard that as a significant aggravating factor.
Mitigating factors are those which, in the court's opinion, decrease the culpability of the offender or decrease the extent to which you should be punished. A plea of guilty is especially recognised as a mitigating factor and, the earlier in proceedings that it is made, or that any indication is given that it will be made, the greater the mitigation. I can also take into account any assistance which you have provided to law enforcement authorities as a mitigating factor. In this case, in your video record of interview which you participated in with the police soon after the fatal accident, you gave a full account of what you considered happened and that, too, is a matter which can be regarded as a mitigating factor. In this case, your admissions in the course of the interview and the communications which you have made to the authorities via your counsel have clearly indicated that you would plead guilty to the charge of manslaughter, and to the other s 32 notice offences, from an early stage. I am satisfied that indication of your intention to enter pleas of guilty was given at the earliest practical stage and that a conventional discount should be applied.
Authorities, later referred to, establish that for early pleas of guilty, a discount of between 20% and 35% may be granted according to the discretion of the judge in the particular circumstances. It has become commonplace for a discount of approximately 25% to be given in most such cases, although a question of whether or not the plea of guilty is truly prompted by remorse and/or a desire to facilitate the achievement of justice on the one hand, or because of the high or inevitable prospect of conviction given the strength of the prosecution case on the other hand, can affect the extent of the discount granted. However, even in cases where the prosecution case is extremely strong, remorse may still be a genuine factor and a desire to accept one's responsibility and face the consequences is part of the facilitation of justice and to be encouraged. A discussion of the discount for early pleas of guilty has been undertaken by this court or by the Court of Appeal on many occasions. The authorities were reviewed in Bruno v The State of Western Australia [2005] WASCA 149, where Steytler P referred to Little v The Queen [2001] WASCA 87 at [13] per Malcolm CJ, Wallwork and Anderson JJ, who said that such discounts usually fall between 25% and 35%, depending upon the circumstances and to Radebe v The Queen (2001) 165 FLR 313 at 318; Abela v The Queen (2002) 134 A Crim R 392 at 403, where Malcolm CJ, with the concurrence of Wallwork J, observed that it had been said that it would be unusual if a fast‑track plea, such as this, did not result in a reduction of sentence of at least 25% at [8] and that this is essentially a matter for discretion by the sentencing judge: Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 at 672 - see also Miles v The Queen (1997) 17 WAR 518.
Other mitigating factors are the absence of any significant prior record, youth of the offender and indications of good character. In this case, Mitchell has only one previous conviction and that is for the drink driving offence of August 2005 which appears to be the first sign of his descent into severe alcohol misuse. He is reasonably well educated, holds a trade qualification, has been in continuous remunerative employment and shows signs of thrift, and a desire to establish himself financially in the community. He is supported by his parents and family members, and at the age of 27 years, after committing such a serious crime with such tragic consequences, there is a prospect that at the end of a suitable period of imprisonment, he should be able to lead a useful life in the community and resume employment, and make a life for himself. Those prospects, although they must be regarded as being deferred into the distant future, are still worthy of preservation and it would be to the interests of society if, after he has served appropriate sentences for these offences, all prospects of rehabilitation and some adequate form of future life should not be destroyed.
I turn now to the various options which are available for imposing sentence. These are set out in s 39 of the Sentencing Act. They range from minor to more severe punishments. At the minor end, there is a discharge without any sentence being imposed or a fine. At the upper end, there is the imposition of a term of suspended imprisonment or actual immediate imprisonment. There are also various options in between. I must explain to you that the law requires that a court should not use a sentencing option which is more severe than any of the other available options, unless justified by the seriousness of the offence or the need for the protection of the community. This is consistent with the long established principle of law that a sentence of imprisonment is a sentence of last resort and that, if at all practical, some lesser sentencing option should be selected. If a term of imprisonment is considered to be the appropriate sentence, even then, I am required to consider whether, in all the circumstances, it might be suspended, notwithstanding that other factors indicate that it is the only appropriate form of sentence.
If a sentence of immediate imprisonment is imposed, I am required to consider whether or not any period in custody spent while on remand should be taken into account and, if so, whether or not the sentence should be backdated to give credit for that period. As I remark elsewhere in these reasons, the prosecution accepts that, following your arrest on 11 December 2007, you have remained in custody and that any period of imprisonment which is imposed could, and should, be backdated until then. I accept that submission and will act upon it.
Also, I should point out that any court sentencing an offender to a fixed term may order that the offender be eligible for parole in respect of that term by making a parole eligibility order under s 89 of the Sentencing Act. Your counsel has submitted that you should be made eligible for parole and although there are some features of s 89 which could perhaps lead to the refusal of a parole eligibility order, that is not pressed by counsel for the DPP. The pre‑sentence report indicates that you are suitable for parole eligibility and I accept this, and will make such an order.
Importantly, in relation to the explanation of the law which applies, I must point out that if a sentence of immediate imprisonment is to be imposed, then the term of that imprisonment which would otherwise have been imposed is to be reduced by a factor of one‑third, having regard to the provisions of s 22 of the Sentencing Legislation Amendment and Repeal Act 2003 (WA), and I shall give effect to this law.
Having concluded, as was plainly conceded, that this offence of manslaughter is one for which a sentence of imprisonment is the only appropriate penalty, and is necessary both for the punishment of the offender and the protection of the public, I must now proceed to impose and combine a series of sentences of imprisonment for these various offences. In doing so, I have given consideration to all the circumstances of the case and not merely to questions of rehabilitation of the offender - Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321. In this case, for the reasons already given, I am satisfied that a term of imprisonment is the only appropriate resolution of this case and, further, notwithstanding additional and separate consideration of whether or not such a term or terms of imprisonment should be suspended, I have reached the conclusion that only a series of immediate terms of imprisonment will meet the requirements of this case.
Personal circumstances of the offender
Lucas Benjamin Mitchell was born on 10 December 1980 and is therefore presently aged 27. The manslaughter offence was committed on his 27th birthday and the other offences were committed over a period of some two to three months before. He was born in Victoria and came to Western Australia in 2007. He is single, and has a trade qualification in fire and sprinkler fitting. He was in full‑time employment until his arrest. In his trade, he was earning $1,100 per week after tax and he owns a house in Victoria, which is currently mortgaged. He was educated to year 12 in Victoria, had a normal upbringing and continues to have a supportive family in Victoria. He has no previous convictions of any kind in Victoria, but he does have one previous conviction for driving with a blood alcohol level in excess of 0.08% in Western Australia. This is the offence for which he was fined, suspended and disqualified on 13 August 2007, which has already been mentioned. He is in good health, has no involvement in illicit drugs or substances, but now admits to an alcohol problem which has plainly been evident from at least August 2007, and must be regarded as being severe by the time of this fatal accident in December of 2007.
The Department of Corrective Services has prepared a detailed pre‑sentence report which I have considered and a further report from a clinical psychologist has been prepared and submitted to the court by his counsel. This details the results of psychometric testing, a series of three interviews by the psychologist with Mitchell at Hakea Prison in January and February of this year, the psychologist's discussion with his mother and a review of the available facts. It gives a detailed history of his educational and scholastic experiences and of his family upbringing. He appears to have been rather isolated and to have had steadily increasing, habitual drinking. Belatedly, but nevertheless positively, he has made efforts to deal with his problem of drinking and to embark on a series of interventions to manage this in the long‑term.
Mitchell was observed to be deeply remorseful about the death which he caused and its widespread tragic effects. His family is very distressed at his conduct and its consequences, and say that his failure to meet his bail obligations and driving while suspended is entirely uncharacteristic.
Nevertheless, the psychologist's report satisfies me that, since being in Perth, Mitchell began regularly drinking to excess, and his overall pattern of behaviour was seriously affected by his drinking and was steadily deteriorating. His behaviour in committing two serious drink driving offences in October and December of 2007, when he had already been convicted and suspended for an earlier drink driving offence in August of that year, shows just how irresponsible he had become and what a dangerous threat he was to all members of the public who use the roads. It also shows that Mitchell had been prepared to flout the consequences of an order of the court suspending him from driving, and to have driven repeatedly whilst under suspension. His behaviour on the evening of 10 December 2007, in the short time preceding this accident, starting with his alarming driving on Canning Highway, his approach to a set of red lights at speed, and his turning against the flow into the one‑way bus exit lane, followed by driving the wrong way up the freeway show that he was very heavily intoxicated, that his judgment was greatly distorted and that his capacity to realise and comply with the elementary safeguards of driving had almost entirely gone.
All these facts speak for themselves. Quite obviously, this is a case of motor vehicle manslaughter involving grossly negligent driving and conduct of extreme gravity. The tragic death of the deceased is not the result of some momentary lack of attention or neglect, no matter how serious, but the consequence of grossly unacceptable behaviour which was bound to cause death or grievous bodily harm to some innocent driver on the freeway, if not of this deceased. It was preceded by noticeably erratic and irresponsible driving, which followed from a long drinking bout. It is compounded by the fact that Mitchell was driving whilst disqualified, and when a warrant for his apprehension had been issued because of his failure to answer bail for an earlier drink driving offence.
This pattern of driving while affected by liquor over a preceding period of about four months revealed him to be impervious to the sanctions imposed by law, the expectations of the community, and the personal obligations assumed by any driver. Inevitably, but correctly, his counsel accepts that this degree of criminal negligence resulting in death is well within the range of the worst kind of offences of this nature. Mitchell's conduct has been a serious threat to many road‑users and that it has caused the death of this innocent young woman, in such circumstances, reveals just how stark and offensive it is. It requires serious punishment, because of the gravity of the conduct, its effect on the victim and her family and friends, because of the need to impose a substantial sanction to deter this offender when other, quite serious sanctions, in the past have failed and to demonstrate to the community the severe consequences which must face anyone who breaks these laws with such culpability.
The family, educational and occupational history of the offender, Mitchell, have already been described. His sessions with the clinical psychologist have made him realise the impact that his developing alcoholism has had upon his life and the tragedy which it has caused. He is determined to take advantage of any available programmes to combat his drinking problem and to devote himself in the future, if he is free to do so, to avoiding such trouble and warning others of the dangers of drinking excessively.
In addition to the report of the clinical psychologist there are a series of documentary references given by members of the family, acquaintances or employers of Mitchell. These comprise exhibits 2 to 18, tendered before me and there is a further letter, exhibit 19, written by Mitchell himself in which he expressed sorrow and remorse for his conduct and the death of Ms Worts. In this, he describes feelings of worthlessness following the realisation of his role in this tragedy, an appreciation of the seriousness of his degrading alcohol habit and his determination to recover from that addiction. He expresses a sense of guilt and shame for his behaviour which I have no doubt is genuine.
The other exhibits come principally from members of the family and family friends. They speak of a liked and likable young man, who grew up in a conventional family with a warm relationship with his parents, brother and sisters, and respect for others. They describe his progression from school to apprenticeship and his responsibility in employment, and the savings which enabled him to invest in a home of his own at the age of 23. They describe him as an honest and reliable person, loyal to friends and family.
It seems that his problems with alcohol were not appreciated, or fully appreciated, by his circle of family and acquaintances in Victoria. His work supervisor here in Western Australia described him as a likable character who gets on well with his workmates, works well under supervision and who is a competent, reliable and consistent worker. His parents and other members of the family are standing by him, and I am sure will give him all the support that they can, both during his period of imprisonment and upon and after eventual release. One of his former teachers described him as an enthusiastic, capable and reliable student, who had a genuine desire to learn and succeed.
It does seem, therefore, that Mitchell has been a young man of considerable opportunity and promise, and one who has led a responsible and diligent life and avoided involvement with the scourge of drugs which is so prevalent in his age group in the community. With the benefit of the information which has been provided, it very much seems that his drinking problem deteriorated significantly after his move to Western Australia, and that this may have been, to some degree, associated with feelings of isolation and insecurity - feelings that were kept in better balance when he was living in the circle of his family and friends in Victoria. His descent into alcoholism, however, appears to have been quite rapid and severe and to have been accompanied by the gross degree of irresponsibility and disregard for the law as I have described. None of this excuses his conduct, but it does emphasise how even a promising character can be derailed through these excesses. That is no consolation to the family of the deceased young woman whom he killed by his negligent conduct, nor to the many members of the public who, unknowingly, were exposed to the risk on the roads which he presented.
The law requires that sentences be imposed which illustrate that, no matter what the reason, the community will not tolerate such conduct and will, rightly, take steps to protect itself against persons who offend in this way and, by deterrence, to reduce the risk of others behaving in a similar fashion. The community does not have to apologise for or explain why conduct such as this must receive severe punishment.
Manslaughter arising from motor vehicle accident - pattern of sentencing
It has often been said that there is no tariff in the sentences imposed for manslaughter because of the very wide band of circumstances in which the offence may occur and because of the great variability in the circumstances of culpability and in the personal features of offenders ‑ see per Buss JA in Penny v The State of Western Australia [2006] WASCA 173, [79] (Roberts‑Smith and McLure JJA concurring); see also D'Amico v The Queen [2002] WASCA 343; (2000) 33 MVR 148 per Ipp J. Nowhere is this more apparent than in cases dealing with manslaughter arising from the use of a motor vehicle where the crime can occur from momentary, but gross, inattention or carelessness by a person who has, otherwise, little if any record of prior convictions and may, generally, be regarded to be law‑abiding. It may also occur in circumstances of repeated and extreme negligence where the person concerned has shown a flagrant disregard for the safety of others and where his conduct of driving for some time, and on previous occasions, has represented a real threat to the safety of other road users. These are all factors which have called for prolonged and repeated attention to the principles to be applied and the sentences to be imposed in motor vehicle manslaughter cases. There is no shortage of judicial examination of these principles in the authorities going back many years but counsel have drawn my attention particularly to five cases decided by the courts in this state between March of 2006 and January of 2008 which, themselves, review earlier authorities both here and in other jurisdictions.
The first of these cases is Penny v The State of Western Australia, a decision of the Court of Appeal comprising Roberts‑Smith, McLure and Buss JJA. In that case, the appellant had been convicted of one count of manslaughter, one count of stealing a motor vehicle and driving it recklessly. At the time he committed these offences the appellant had recently been released on parole on a prior conviction for stealing a motor vehicle and driving it recklessly, for which he had been sentenced to 4 years' imprisonment. Both sets of convictions involved police chases.
For the second set of offences from which he was appealing Penny had been sentenced to terms of imprisonment of 8 years and 3 years respectively, those offences to be served concurrently and eligibility for parole was refused. Because the offences had been committed at a time when Penny was on parole after serving only part of the period of a previous 4‑year sentence, he was also required to serve the remainder of that sentence. Nevertheless, the 8 years and 3 years imposed for the more recent offences were to be served concurrently with the unexpired portion of the earlier sentence. His appeal concerned the length of the 8‑year and 3‑year sentences which had been imposed and the refusal of the trial judge to order parole eligibility. It succeeded only in part in that the 3‑year sentence was reduced to 18 months but again it was to be served concurrently with the 8‑year sentence and there was no change to the refusal of parole eligibility. In dealing with the proper range of sentences McLure JA said:
Buss JA reviews the principal authorities in this State relating to sentences for motor vehicle manslaughter. The sentences range from 3 years' imprisonment to 10 years' imprisonment, all of which were imposed prior to the commencement of the Sentencing Legislation Amendment and Repeal Act 2003 (WA). The transitional provisions of that Act provide that a sentencing court must now impose a term that is two‑thirds of the fixed term that would have been imposed before the commencement of that Act. A range of 3 years' to 10 years' imprisonment under the former provisions corresponds with the range under the transitional provisions of 2 years' to 6 years and 8 months' imprisonment. In the two cases where a sentence of 10 years' imprisonment was imposed, one followed a trial so there was no discount for a plea of guilty (Punch v The Queen (1993) 9 WAR 486) and the other involved conduct resulting in the deaths of two innocent road users (White v The Queen (2003) 39 MVR 157). [16]
The circumstances of the offence of unlawful killing in this case were in the upper range of seriousness of offences of this type. Further, the appellant's antecedent criminal history demonstrates that the offence is not uncharacteristic and an aberration but is a manifestation of a continuing attitude of disobedience of the law and it illuminates the very significant moral culpability of the appellant: Veen v The Queen(No 2) (1987) 164 CLR 465, 477 ‑ 478. Having regard to all relevant sentencing considerations including (but not limited to) the sentences customarily imposed, I am not persuaded that a sentence of 8 years' imprisonment for unlawful killing in the circumstances of this case is outside the range of a sound sentencing discretion. [18]
Also in Penny [79] ‑ [87] this review by Buss JA dealt with R v Stebbings (1990) 4 WAR 538; R v S (No 2)(A Child) (1992) 7 WAR 434; Wicks v The Queen (1989) 3 WAR 372; McKenna v The Queen (1992) 7 WAR 455; Punch v The Queen (1993) 9 WAR 486; Clinch v The Queen [1999] WASCA 57; D'Amico v The Queen [2000] WASCA 343; (2000) 33 MVR 148; White v The Queen [2003] WASCA 197; (2003) 39 MVR 157, before turning to the disposition of the appeal. Then at [106] Buss JA referred to Penny's serious record and the fact that he was on parole at the time of the offence and then went on to observe:
In my opinion, a starting point of 16 years' immediate imprisonment (before taking into account mitigatory factors and before the application of the transitional provisions) is appropriate. A discount of 25 per cent, for all matters of mitigation, should be made. The discount and the subsequent application of the transitional provisions produce a sentence of 8 years' immediate imprisonment, which is the sentence that the learned judge imposed. This sentence is severe, but it reflects the criminality of the appellant's behaviour, is necessary to protect the community, and gives effect to important considerations of personal and general deterrence. [107]
There are also two decisions of the Court of Appeal, each delivered on 19 October 2007. The first is Farmer v The State of Western Australia [2007] WASCA 219, and the second is Taylor v The State of Western Australia [2007] WASCA 218, both decisions of a court comprising Owen, Wheeler and Miller JJA. Farmer had been convicted on an indictment containing 17 counts. Six counts of stealing motor vehicles, five counts of aggravated burglary, one of burglary, one of robbery in company and one of unlawful killing and three of unlawfully doing bodily harm. He pleaded guilty to all the charges. He was sentenced to a total term of imprisonment of 8 years and 8 months and was ordered to be eligible for parole. There were various orders for cumulation and concurrency of the individual sentences but, on the appeal, the essential point was that the sentence of 8 years and 8 months infringed the totality principle and represented a crushing sentence for an 18‑year‑old offender. The sentence for manslaughter, which comprised part of this matrix, was for 5 years and 4 months' imprisonment. In the result, and it would seem only because of the requirements of the totality principle, the directions as to cumulation were altered with the effect that the total period of imprisonment was reduced to 7 years and 4 months.
The second of these cases, Taylor v The State of Western Australia, involved a motor vehicle accident resulting in five deaths and pleas of guilty to five counts of manslaughter. The offender, Taylor, was aged 19 years at the time of the offence and was travelling between 100 and 130 km per hour in a 70 km per hour zone. The appellant had been affected by methylamphetamine and amphetamines. He was sentenced to imprisonment for 4 years on each count in the indictment and the sentence on one count was ordered to be served cumulatively upon the sentence on another but all others were to be served concurrently. He was made eligible for parole. The appeal against sentence was unanimously dismissed and one issue in the appeal (which does not arise in this case) was whether or not the number of deaths was a factor to be taken into account in imposing the effective final sentence, but the appeal canvassed a range of sentences for manslaughter generally. Miller JA at [41 ‑ 42] said:
The reported cases do not reveal any case in which a sentence greater than 8 years' imprisonment (post‑transitional) has been imposed. The only equivalent case is Penny v The State of Western Australia [2006] WASCA 173 where Buss JA (with whom Roberts-Smith and McLure JJ agreed) concluded that in the circumstances of the case a sentence of 8 years' immediate imprisonment, although severe, reflected the criminality of the appellant's behaviour and the need to protect the community by giving considerations to personal and general deterrence (at [107]).
Penny's case was an extreme case. It was in the upper range of seriousness for offences of its type. (See McLure JA at [18]).
After further analysis and discussion Miller JA observed:
Without reviewing in detail each of the comparable cases that have dealt with cases in the worst category of offences, I would accept that, generally speaking, sentences of 10 years' imprisonment (pre-transitional) have marked out those cases. In one instance (Penny's case), the sentence was 12 years' imprisonment (pre-transitional). [45]
In my view, comparable sentences for motor vehicle manslaughter tend to show that the courts have not always 'valued human life as highly as the legislature' (R v Bangard [2005] VSCA 313; (2005) 13 VR 146, [12] Buchanan JA). The maximum sentence for the crime of manslaughter is 20 years and motor vehicle manslaughter cases have seldom resulted in head sentences beyond 10 years (pre-transitional). [46]
Then, after discussing the observations of Nettle JA in R v Bangard [2005] VSCA 313; (2005) 13 VR 146 [39] and Ipp J in Jarvis v The Queen (1993) 20 WAR 201, 207 his Honour pointed out that in an appropriate case it was within the discretion of a sentencing judge to impose a sentence up to the maximum prescribed by Parliament if the circumstances warranted this notwithstanding that it might be greater than the general range of sentences imposed for such offences. His Honour went on to say:
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. Sentences in motor vehicle manslaughter cases do need to reflect the value placed upon human life by the legislature (R v Bangard per Buchanan JA at [12]) and, in my opinion, they have not in the past always done that. [54]
The next case in chronological order to which I was referred by counsel for Mr Mitchell is Eves v The State of Western Australia [2008] WASCA 7, a decision of the Court of Appeal comprised by Steytler P, McLure and Miller JJA. Unlike those so far examined, this was an appeal against sentences imposed for three counts of dangerous driving causing death (three fatalities arising from the one accident) where the sentences were ordered to be served cumulatively and a total sentence of 5 years' imprisonment was imposed on a 29‑year‑old offender who had been driving a vehicle towing a trailer, swerving side to side on a major country road, and then collided with an oncoming vehicle which then in turn collided with another vehicle. Again, a major issue on the appeal was whether or not the overall period of imprisonment should be modified because of orders for cumulation of the sentences arising from the multiple deaths to the degree which had been directed by the trial judge. A majority of the court (Steytler P and McLure JA, with Miller JA dissenting) allowed the appeal by ordering only partial cumulation and substituted an effective total sentence of 3 years and 4 months' imprisonment (5 years under the pre‑transitional scheme). McLure JA explained at [34] how sentences imposed for motor vehicle manslaughter are not directly comparable to sentences for dangerous driving causing death. That is clear from the different penalties imposed by the legislature and it can also be seen to derive from the differing degrees of fault required to establish the two offences.
The State of Western Australia v Garlett [2007] WASCA 274 was a State appeal against an alleged inadequacy of sentences imposed following pleas of guilty to one count of causing grievous bodily harm and one count of manslaughter. The sentencing judge had sentenced the appellant to 2 years and 8 months for causing grievous bodily harm and 6 years for manslaughter, to be served concurrently. The death was caused by the appellant's driving and this was part of an incident involving a fracas between two groups of youths, some bearing weapons, and the appellant used the vehicle to run down members of the opposing group. The point of the State appeal was to submit that the sentences should have been made cumulative. In the result, the appeal was dismissed and although the court was satisfied that the degree of recklessness was gross, the sentence was said to have been justified by a number of mitigatory circumstances including, in particular, the desire of the offender to protect his colleagues who were under threat from the opposing group. McLure JA gave the leading judgment, with whom Steytler P and Wheeler JA agreed but, in doing so, Wheeler JA remarked at [3] that there were very important mitigating factors which justified a very considerable reduction in the sentence which would otherwise have been appropriate to driving demonstrating this degree of recklessness.
Drawing all available assistance from these authorities I consider that I must conclude that, in every case, the responsibility is upon the individual sentencing judge to impose a sentence which is appropriate to the seriousness of the particular offence and the gravity of the offender's conduct in the case in question. In doing so, the sentencing judge must be guided by the pattern of sentencing, so far as it is discernible, which has been established by the courts, particularly the Court of Appeal, for like offences to such a degree as the particular circumstances may be comparable. Justice in sentencing requires a general level of consistency for the 'punishment to fit the crime' but no requirement of precise uniformity can or should be achieved because of the unending differences in the cases which come before the courts and the varying circumstances of the different offenders.
Subject to those observations, however, a general pattern showing a maximum of 10 to 12 years' imprisonment (pre‑2003 legislation) or 6 years and 8 months to 8 years' imprisonment has been established by the pattern of decisions and appeals dealing with such cases in this State for offences in the most serious category (accepting criticisms about categorisation which were made by McLure JA and agreed to by Steytler P in Eves at [11] and [21] ‑ [23] respectively.)
On any approach the present offence must be regarded as being one in the worst category both in relation to the degree of culpability shown by the offender Mitchell in the events which led to this tragic accident and in the demonstrations of disregard for the law and the safety of the public which was revealed by his conduct on the occasions of his earlier convictions and the other offences which are the subject of the s 32 notice, all of which indicate serious disregard for the safety of other road users and of his own legal obligations. Therefore, in the present case, I consider the appropriate starting point for a calculation of this sentence for manslaughter is 12 years' imprisonment (pre the 2003 amendments). That must be reduced by one‑third, meaning that the adjusted starting point becomes 8 years' imprisonment.
There is then the effect of remorse, cooperation with the authorities and a plea of guilty to the charges at the first practicable dates. This may well be a case where the pleas of guilty are prompted to a substantial degree by the overwhelming strength of the case against the offender and, on that account, that a smaller discount should be granted. However, that point was not pressed with any vigour by the prosecution and the pleas of guilty have undoubtedly assisted in the facilitation of the expeditious achievement of justice and have spared many people, not the least of which are the family of the deceased, additional stress and ordeal. I am satisfied, therefore, that in the circumstances a 25% discount should be allowed and that, therefore, will reduce the sentence to 6 years' imprisonment. Having regard to the young age of the offender and the desirability of maximising the prospects of rehabilitation at the time of eventual release, I consider that he should be made eligible for parole and I so order. There was no opposition to an order for parole eligibility announced by the State.
Details of the s 32 notice offences
The offence of driving whilst under the influence of alcohol on 10 December 2007 and the offence of failing to have a driver's licence, and driving while his driver's licence had been suspended also relate to Mitchell's activities on the evening of 10 December 2007. His blood alcohol level, as earlier noted, was calculated to have been at 0.205% at the time of the offence.
Other offences were committed on 5 October 2007. Mitchell was driving his Ford utility north on the Graham Farmer Freeway in Burswood near Victoria Park Drive. He was observed by police to be driving in a reckless manner and his speed was checked at approximately 120 km/h in an 80 km/h zone. He was swerving in and out of traffic and almost collided with several vehicles whilst he continued driving recklessly. Several of those vehicles had to take evasive action to avoid collision. Mitchell was stopped by the police and found to be intoxicated and driving whilst under suspension. He was taken to the Perth police station, where he underwent a breath analysis test, which gave a reading, corrected to the time of the occurrence, of 0.184%. It was also ascertained that his driver's licence was under suspension because of a conviction a the Joondalup Magistrates Court on 18 August 2007. He was released on bail in the early hours of 6 October to appear at the Perth Magistrates Court on 10 October 2007. He failed to appear at court at that time, and failed to appear as soon as practicable thereafter. A warrant was issued for his arrest. He was arrested on this warrant at Royal Perth Hospital on 11 December 2007, following treatment for the injuries he sustained in the accident on the Kwinana Freeway that night.
The offences of driving under the influence (Road Traffic Act1974 (WA) s 63(1)) must each be treated as first convictions because the drink driving offence of 18 August 2007 was for driving in excess of 0.08% alcohol in the blood. Each carries a minimum fine of $800 and a maximum fine of $2,500, together with a mandatory driver's licence disqualification for not less than 6 months. For the breach of bail offence, there is a maximum fine of $10,000 and/or a maximum term of 3 years' imprisonment.
At the hearing of submissions on sentencing by the prosecution and by counsel for the offender, I directed that the DPP may within seven days file written submissions as to the effect of the provisions of the Sentencing Act 1995 (WA) and Road Traffic Act 1974 (WA) (the 'RTA') as that legislation applied to this conviction for manslaughter and the convictions for breaches of the Road Traffic Act which were the subject of the s 32 (Sentencing Act) notice. Helpful written submissions were filed by counsel for the prosecution. Counsel for Mitchell has responded, also in writing, confirming agreement with the propositions of law contained in those submissions. The issues arising in relation to disqualification of the offender's motor driver's licence, as they arise in this case, can be shortly stated as follows:
(a)the DPP seeks an order under s 105 of the Sentencing Act 1995 (WA) that a disqualification order should be made disqualifying Mitchell from holding or obtaining a driver's licence for life;
(b)in relation to the two charges of driving a motor vehicle while under the influence of alcohol contrary to s 63(1) of the Road Traffic Act - charges 67219/07 and 56902/07 ‑ the RTA provides for a mandatory motor driver's licence disqualification for a minimum period of six months with no maximum period of disqualification prescribed;
(c)on the two charges of driving a motor vehicle without a valid motor driver's licence, having been disqualified from holding a licence, contrary to s 49(2)(a)(iii); s 49(3)(a)(i); s 49(3)(a); and s 49(3)(c) of the RTA ‑ charges 67220/07 and 56903/07, the RTA provides for a mandatory motor driver's licence disqualification for a minimum period of six months and a maximum period of three years, which period of disqualification must be ordered to be served cumulatively on any other driver's licence disqualification.
(d)on the charge of reckless driving, contrary to s 60(1) and s 60(3)(a) of the RTA - charge number 56904/07 - the RTA provides for a mandatory motor driver's licence disqualification for a minimum period of six months with no maximum term.
Section 49 of the RTA (driving without a valid licence, it having been disqualified) provides that orders for disqualification periods for such offences must be served cumulatively. However, s 60 (reckless driving) and s 63 (driving under the influence) contain no provision as to whether disqualification periods for those particular offences are to be served concurrently or cumulatively. Counsel for the DPP submits, and counsel for Mitchell supports the submission, that by reason of s 105 of the Sentencing Act terms of disqualification for offences against s 60 and s 63 should operate concurrently with any other term of disqualification unless the court were to make an order expressly to the contrary. In the absence of such an express order, the submission is that any disqualifications for the offences against s 60 and s 63 will run concurrently with each other, but cumulatively upon the periods of disqualification set in respect of the section 49 offences which, incidentally, will operate cumulatively upon each other.
The application by the State for a lifetime driver's licence disqualification of the offender pursuant to s 104 and s 105 of the Sentencing Act is advanced on the basis that the offender's driving conduct, both in the months leading up to the manslaughter offence as well as in the driving immediately preceding that fatal accident, is so grave and serious that the requirements of public safety as well as punishment of the offender, call for a lifetime disqualification. Whether or not a period of disqualification should be imposed in connection with the manslaughter offence and, if so, whether it should be for the lifetime of the offender or for some shorter, finite period is for this court to decide because such penalties are not mandatory. While a lifetime disqualification is certainly severe, for a person of the offender's age, such orders have been imposed in other cases, notably Kayv The Queen [2004] WASCA 222 and Duff v The State of Western Australia [2006] WASCA 37.
In Kay v The Queen, a case involving two convictions for dangerous driving causing death (a double fatality) and one conviction for dangerous driving causing grievous bodily harm and another conviction for dangerous driving causing bodily harm, the learned sentencing judge imposed a life disqualification upon the offender from holding a driver's licence. That was a case of a road train colliding with the rear of a vehicle at a railway level crossing where the vehicle had been stationary and the red flashing lights had been visible to the approaching road train. It was categorised by the sentencing judge as being within the worst category of offences of this kind. On appeal against the sentence and the life disqualification, Miller J with whom Murray and Wheeler JJ agreed, accepted that it was a case in the worst category. In dealing with the appeal against the lifetime disqualification Miller J observed:
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. [71]
Duff v The State of Western Australia was a case involving an application for leave to appeal against sentence following convictions for three speeding offences on different dates, a conviction after trial for manslaughter arising from a fatal motor vehicle accident and another conviction of causing grievous bodily harm also arising from the same accident. The applicant was sentenced to a total of six years' imprisonment and was disqualified for life from holding a motor vehicle driver's licence in respect of the manslaughter conviction and disqualified for 10 years in respect of the conviction for causing grievous bodily harm. The offender applied for leave to appeal against the convictions and the life disqualification but leave was refused and the application dismissed by Roberts-Smith JA sitting as a single judge of the Court of Appeal. The offences were committed by the applicant when driving a motor cycle at a high speed of about 140 km per hour in a 60 km per hour zone and when he had a high level of amphetamines in his blood.
At [36] Roberts‑Smith JA observed that a lifetime disqualification was imposed in that case, which was a very bad case of motor vehicle manslaughter and that this was done in the exercise of a judicial discretion. Nothing was suggested to indicate that the discretion had erroneously been exercised or had otherwise miscarried and leave to appeal against the disqualification was also refused.
It is perhaps not insignificant that in that case the offender had three previous convictions for speeds greatly in excess of the prescribed maximum limit in the locations where they had occurred and that the prosecution had called for, and the learned sentencing judge had accepted, a need for a deterrent sentence.
In the event that a lifetime or other period of disqualification is imposed under s 104 and s 105 of the Sentencing Act, that does not obviate the need for specific periods of disqualification to be imposed in respect of each of the RTA offences even if the aggregate of the periods of disqualification for the RTA offences were to be less than the period of disqualification imposed under s 105 of the Sentencing Act. It is still necessary that such specific periods of disqualification be imposed - Kay v The Queen per Miller JA at [17] ‑ [71], Murray and Wheeler JJ agreeing.
Returning to a period of disqualification to be imposed under s 105 of the Sentencing Act in respect of the manslaughter offence, it also follows from the observations which I have already made about the effect of s 105 of the Sentencing Act upon periods of disqualification for offences under s 60 and s 63 of the RTA that any period of disqualification imposed under s 105 will, in the absence of an order by this court expressly to the contrary, operate concurrently with any other term of disqualification imposed. However, pursuant to s 103(1)(a) of the Sentencing Act, the disqualification period will not elapse while the offender is in custody serving any term of imprisonment. By contrast, periods of disqualification imposed under the Road Traffic Act will commence to run (and even expire) while the offender is in custody serving any term of imprisonment.
One other factor needs to be noted. This is that because of Mitchell's prior conviction for an offence against s 64(1) of the RTA (excess of 0.08%; >=0.13% but <0.14%) together with the convictions for offences against that Act with which I am now dealing, his driver's licence is cancelled pursuant to s 75(2)(a) of the RTA. This means that after the expiration, of any period or aggregate of periods, of disqualification which this court may impose (but assuming that no lifetime disqualification is imposed) Mitchell will need to apply for a driver's licence pursuant to the provision of the RTA, and satisfy the necessary tests and qualifications for obtaining such a licence at the time of application.
I shall deal first with the submission that the offender should be disqualified from driving for life consequent upon his conviction for manslaughter. This application must be considered in the setting that I have already decided that Mitchell must serve a sentence of 6 years' imprisonment for that offence but be subject to eligibility for parole. This means that as the sentence is to take effect from 11 December 2007, when he was first taken into custody, he would be released not later than 11 December 2013 if he were to serve the full period of his sentence, but he is likely to qualify for certain remissions and may be released on parole earlier. This means that he may be back again in the community in somewhere less than 6 years' time and by then that he will be aged somewhere between 33 and 34 years. I therefore need to consider and evaluate the need for the protection of the community by disqualifying him from driving from that time on when, as explained, he may have been released either conditionally or unconditionally from a lengthy period of imprisonment.
I also need to take into account the restrictions which a licence disqualification would be likely to have upon his employment prospects and other hopes of rehabilitation at a time when, one hopes, he is trying to build his life afresh after completing the service of the sentences which this court imposes. That involves a substantial prognostication about his behaviour and attitude in a distant future time.
One expects that after this experience and the completion of the service of his periods of confinement Mr Mitchell will be a changed man and that he should be more responsible and controlled in any use of alcohol. Nevertheless, as these convictions demonstrate, he obviously has a long‑standing problem with drinking and it is to much to expect that the community should take on trust the prospect of recovery immediately upon release. Therefore, I am of the view that any period of disqualification from holding a licence should continue for at least a sufficient period after Mitchell's release from imprisonment to enable him to demonstrate that he can be a responsible driver and will not be a threat to the public which uses the roads. If he is able to do this, it seems to me that a lifetime disqualification from driving would be more than would be necessary to protect the community or than the occasion demands.
Assuming, simply for the purposes of analysis, that by some lengthy period of satisfactory behaviour after release from prison Mr Mitchell is able to demonstrate that he is fit to hold a driver's licence, perhaps with such restrictions as might then be considered necessary or appropriate, I consider that it would be in the interests of the community and for him if he were to seek and obtain such a licence. This would enhance his prospects of employment and perhaps allow him to be of greater benefit to the community and to himself and any family. The question is when should this ability to seek the renewal of the licence be permitted and whether or not any conditions should be imposed upon it.
It seems to me that a period of at least five years should elapse after he is released from prison before which any ability to seek a new licence, even a conditional licence, should be permitted and I would, therefore, fix that period. The problem is that it cannot be said with any certainty because it will not be known when the offender is to be released from prison on parole or unconditionally.
One potential safeguard is that if a deserving case were made out, Mr Mitchell may be able to obtain the grant of a special or conditional licence under the provisions of the Road Traffic Act before that period expires and that the court to which any application for such a special conditional licence was made would have regard to the facts and circumstances which have prompted this court to make the orders now under consideration and to consider the application for the special or conditional licence in the light of the factors which I have mentioned and the particular circumstances which apply at that future time and which it is difficult, if not impossible, to envisage with any reliability at present.
In my view, the approach which should be taken at present is that there should be a disqualification from obtaining any motor driver's licence for Mitchell for a period of 11 years from now.
The two convictions for failing to have a valid motor driver's licence must also each be dealt with as first convictions. Each has a penalty of a minimum fine of $400 to a maximum of $2,000 or imprisonment for up to 12 months, together with a mandatory motor driver's licence disqualification for a period of not less than 9 months and not more than 3 years, which much be cumulative on any current disqualification.
In relation to the reckless driving offence, for a first offence there is a maximum fine of $1,000 or 9 months' imprisonment and a mandatory motor driver's licence disqualification for not less than 6 months.
Penalties imposed
In my view, the sentence which should be imposed on Mitchell for the offences are as follows. This takes into effect the 2003 legislation (reduction of impairment by one‑third) and a discount of 25% for the early pleas of guilty entered.
(a) Manslaughter: | 6 years' imprisonment |
| (b) Driving a motor vehicle on 5 October 2007 whilst under the influence of alcohol to such an extent as to be incapable of having proper control of such a vehicle: | Fine of $1,250, motor driver's licence disqualified for 12 months |
| (c) Driving a motor vehicle on 5 October 2007 without being the holder of an appropriate driver's licence and driving while legally disentitled to hold a driver's licence | Imprisonment for 6 months and disqualification from holding or obtaining a motor driver's licence for 12 months cumulative upon sentence for no motor driver's licence |
| (d) Driving a motor vehicle on 5 October 2007 in a manner dangerous to the public or to any person | 6 months' imprisonment concurrent upon the earlier order of imprisonment |
| (e) For the offence of 10 October 2007 of failing to appear at court in breach of bail | 6 months' imprisonment concurrent upon the other periods of imprisonment |
| (f) The offence committed on 10 December 2007 of driving whilst under influence of alcohol to such an extent as to be incapable of having proper control of such a vehicle | 6 months' imprisonment to be served concurrently with the sentence for manslaughter and motor driver's licence disqualification for 12 months |
| (g) The offence on 10 December 2007 of driving without being the holder of an appropriate valid driver's licence and driving whilst under suspended sentence | 6 months' imprisonment to be served concurrently with the sentence of imprisonment for manslaughter and an order for disqualification from holding or obtaining a motor driver's licence for 2 years cumulative upon other current disqualifications |
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