The State of Western Australia v Molloy - [2020] WASCA 123

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   THE STATE OF WESTERN AUSTRALIA -v- MOLLOY [2020] WASCA 123
CORAM:   BUSS P
MAZZA JA
MITCHELL JA

HEARD:   6 MAY 2020
DELIVERED          :   5 AUGUST 2020
FILE NO/S:   CACR 154 of 2019
BETWEEN:   THE STATE OF WESTERN AUSTRALIA
Appellant
AND
MATTHEW DAVID MOLLOY
Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   GOETZE DCJ
File Number            :   IND 663 of 2019

Catchwords:

Criminal law - State appeal against sentence - Respondent convicted on his pleas of guilty of numerous offences in connection with his dangerous driving of a motor vehicle - Manifest inadequacy - Totality principle

Legislation:

Criminal Appeals Act 2004 (WA), s 31(4)
Criminal Code (WA), s 371A, s 378
Road Traffic Act 1974 (WA), s 49AB, s 49, s 54, s 56, s 59

Result:

Appeal allowed
Sentencing judge's sentencing decision set aside
Respondent resentenced

Category: D

Representation:

Counsel:

Appellant	:	Ms L E Christian SC
Respondent	:	Mr A J Robson

Solicitors:

Appellant	:	Director of Public Prosecutions (WA)
Respondent	:	Legal Aid WA

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

Barbaro v The Queen [2014] HCA 2; (2014) 253 CLR 58
Barron v The State of Western Australia [2010] WASCA 27; (2010) 55 MVR 123
Billing v The State of Western Australia [2017] WASCA 80; (2017) 80 MVR 127
CMB v Attorney General (NSW) [2015] HCA 9; (2015) 256 CLR 346
Devine v The State of Western Australia [2010] WASCA 94; (2010) 202 A Crim R 1
Gaskell v The State of Western Australia [2018] WASCA 8
Gelmi v The State of Western Australia [2019] WASCA 139; (2019) 89 MVR 443
Giglia v The State of Western Australia [2010] WASCA 9
Libri v The State of Western Australia [2013] WASCA 113
Lutumba v The State of Western Australia [2013] WASCA 172
McAlpine v The State of Western Australia [2018] WASCA 195
Moore v The State of Western Australia [2019] WASCA 35
Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600
Paulose v The State of Western Australia [2019] WASCA 182; (2019) 90 MVR 386
Roffey v The State of Western Australia [2007] WASCA 246
The State of Western Australia v Berry [2016] WASCA 113; (2016) 76 MVR 285
The State of Western Australia v Butler [2009] WASCA 110
The State of Western Australia v Doyle [2017] WASCA 207
The State of Western Australia v Gibbs [2009] WASCA 7; (2009) 192 A Crim R 399
The State of Western Australia v Tittums [2018] WASCA 23; (2018) 271 A Crim R 298

JUDGMENT OF THE COURT:

This is a State appeal against sentence.
The respondent was convicted, on his pleas of guilty before Goetze DCJ, of ten counts in an indictment.
Count 1 alleged that on 28 December 2018, at Perth, the respondent stole a Toyota Hilux motor vehicle, contrary to s 371A read with s 378 of the Criminal Code (WA) (the Code).
Count 2 alleged that on 29 December 2018, at Wilson, the respondent drove the Toyota Hilux motor vehicle which was involved in an incident occasioning grievous bodily harm to Petrus Tjandra, and that at the time of the incident the respondent drove the vehicle in a manner that was, having regard to all the circumstances of the case, dangerous to the public or to any person, and that:
(a)the respondent unlawfully drove the vehicle without the consent of its owner; and
(b)the respondent drove the vehicle, having held a prescribed authorisation, but then being a disqualified person as described in s 49(3)(b) of the Road Traffic Act1974 (WA) (the RT Act),
contrary to s 59(1)(b), read with s 49AB(1)(a) and s 49AB(1)(ab), of the RT Act.
Count 3 alleged an identical offence to the offence pleaded in count 2, except that the incident occasioned grievous bodily harm to Dujung Soejati Bachtiar.
Count 4 alleged an identical offence to the offence pleaded in count 2, except that the incident occasioned grievous bodily harm to Nathalia Tjandra.
Count 5 alleged an identical offence to the offence pleaded in count 2, except that the incident occasioned grievous bodily harm to Edwin Setiawan Tjandra.
Count 6 alleged an identical offence to the offence pleaded in count 2, except that the incident occasioned bodily harm to Cynthia Dewi Sandjaja.
Count 7 alleged an identical offence to the offence pleaded in count 2, except that the incident occasioned bodily harm to Fransiskus Tjandra.
Count 8 alleged an identical offence to the offence pleaded in count 2, except that the incident occasioned the death of Leonardis Tjandra.
Count 9 alleged that on the same date and at the same place as count 2, the Toyota Hilux motor vehicle driven by the respondent was involved in an incident occasioning bodily harm to Leonardis Tjandra, and that the respondent failed to report the incident forthwith to an officer in charge of a police station or the Commissioner of Police in a manner approved by the Commissioner, and that the incident occasioned the death of Leonardis Tjandra, contrary s 56(1) read with s 56(2) of the RT Act.
Count 10 alleged that on the same date and at the same place as in count 2, the Toyota Hilux motor vehicle driven by the respondent was involved in an incident occasioning bodily harm to Leonardis Tjandra, and that the respondent failed to stop immediately after the occurrence of the incident and for as long as was necessary to comply with the requirements of s 54(2) of the RT Act (namely, to ensure that Leonardis Tjandra received all the assistance, including medical aid, that was necessary and practicable in the circumstances) and that the incident occasioned the death of Leonardis Tjandra, contrary to s 54(1), read with s 54(2) and s 54(3)(a), of the RT Act.
The maximum penalty for:
(a)count 1 is 7 years' imprisonment;
(b)each of counts 2, 3, 4 and 5 is 14 years' imprisonment;
(c)each of counts 6, 7 and 9 is 10 years' imprisonment; and
(d)each of counts 8 and 10 is 20 years' imprisonment.
The sentencing judge imposed individual sentences of immediate imprisonment as follows:
(a)count 1: 12 months;
(b)count 2: 2 years 6 months;
(c)count 3: 2 years 6 months;
(d)count 4: 2 years 6 months;
(e)count 5: 2 years;
(f)count 6: 12 months;
(g)count 7: 12 months;
(h)count 8: 4 years;
(i)count 9: 18 months; and
(j)count 10: 12 months.

His Honour said that, in applying the totality principle, he had reduced the individual sentence for count 10 from 3 years' immediate imprisonment to 12 months' immediate imprisonment.
The sentencing judge ordered that the individual sentences for counts 2 and 10 be served cumulatively upon each other and cumulatively upon the individual sentence for count 8. His Honour also ordered that the other individual sentences be served concurrently with each other and concurrently with the individual sentence for count 8. The total effective sentence was therefore 7 years 6 months' imprisonment. The total effective sentence was backdated to 29 December 2018. A parole eligibility order was made.
His Honour also imposed a total effective driver's licence disqualification of 5 years and made a compensation order in the amount of $13,600 payable to Edwin Setiawan Tjandra, the victim in count 5.
The State relies upon three grounds of appeal. Ground 1 alleges that the individual sentence for count 8 was manifestly inadequate. Ground 2 alleges that the individual sentences for counts 2, 3, 4 and 5 were manifestly inadequate. Ground 3 alleges that the total effective sentence infringed the first limb of the totality principle. On 25 November 2019, Buss P granted leave to appeal.
We are satisfied that all of the grounds of appeal have been made out. The appeal should be allowed, the sentencing judge's sentencing decision (including the sentences imposed and the orders made by his Honour) should be set aside and the respondent should be resentenced by this court. Our reasons are as follows.

The facts and circumstances of the offending

The facts and circumstances of the offending, as alleged by the prosecutor at the hearing before the sentencing judge, were not disputed by defence counsel. They were not disputed on appeal.
At about 3.45 pm on 28 December 2018, the respondent entered the Wilson car park attached to Royal Perth Hospital along Moore Street, Perth. He stole a Toyota Hilux motor vehicle and drove to the exit where he forced his way past the boom gate. The registered owner of the vehicle was Christine Forsyth and it was being used by her son, Michael Forsyth, on 28 December 2018. The respondent took the vehicle without their consent.
At about 4.00 pm on 29 December 2018, the respondent drove the stolen Toyota Hilux in an easterly direction along Leach Highway, Wilson. The speed limit was 70 km an hour. The road conditions were dry and visibility was good.
The respondent was speeding and paying insufficient attention to the road. He crashed into the rear of a Hyundai TQ van carrying eight persons which was stationary at a red traffic light. An eye witness estimated that the respondent was travelling at about 100 km an hour immediately before the collision. The respondent did not brake, swerve or take evasive action before the impact.
The Hyundai van was stationary in the middle lane of three, heading in an easterly direction. The impact caused the front of the van to become wedged under the trailer of a Woolworths truck which was stationary at the red traffic light in front of the van.
Immediately following the crash, the respondent left the scene on foot. Shortly afterwards, he telephoned his mother and asked her to collect him from a location near the crash scene. He failed to report the accident to police or to assist any of the victims of the accident.
Yonathan Tjandra (26 years old) was driving the Hyundai van with his father, Petrus Tjandra (58 years old), in the front passenger seat. Dujung Soejati Bachtiar (57 years old), Petrus' wife, was seated in the middle row behind the driver. Her daughter, Nathalia Tjandra (32 years old), was seated beside her in the middle seat of the middle row. Edwin Tjandra (32 years old) was seated behind the front passenger seat in the middle row. Cynthia Sandjaja (34 years old), Edwin's wife, was seated on the right side of the back row next to their two young children Fransiskus Tjandra (6 years old) and Leonardis Tjandra (5 years old).
Yonathan Tjandra was not severely injured and was able to alight from the Hyundai van and endeavour to assist his family. Shortly afterwards, police and ambulance personnel arrived. All the passengers were taken to hospital.
At about 6.00 pm that evening, Joanne Munachen, the respondent's mother, called the police. The respondent was then arrested at his mother's address in Gosnells. He had a cut to his tongue, a swollen face and a cut to his chin.
The respondent was taken to hospital for medical treatment. A sample of his blood was obtained at 8.43 pm. Toxicology analysis found that no alcohol or drugs were present.
Yonathan Tjandra was assessed at Royal Perth Hospital on 29 December 2018 and was discharged that evening. He suffered some cuts and some pain to his head and his legs.
Petrus Tjandra suffered a broken leg. He underwent surgery on 30 December 2018 to align his leg with the bone and had a further operation on 4 January 2019 to insert metal plates in his leg. He also suffered two cracked ribs on his right side and a right periorbital haematoma. He was discharged from hospital on 8 January 2019.
Dujung Bachtiar's first recollection after the accident was waking on 9 January 2019 at Royal Perth Hospital. She suffered multiple fractures to her spine, fractured ribs and severe head injuries causing bleeding on the brain.
Nathalia Tjandra suffered a broken pelvis and a fractured spine and neck. She also suffered pulmonary contusion and brain concussion. She underwent surgery on 31 December 2018. She remained in hospital until 17 January 2019. She was required to wear a neck brace for 3 months and needed crutches to walk.
Edwin Tjandra received a broken ulna in his left hand, six fractured ribs, internal lacerations including a grade 3 liver laceration, and a T10 vertebral body fracture.
Cynthia Sandjaja spent two days at Royal Perth Hospital. She received stitches in cuts to her right eye and forehead, had difficulty breathing and suffered soreness to her right arm.
Fransiskus Tjandra suffered bruising to his chest and a chipped front tooth. He also had decreased air entry and bruising and abrasions to his right ankle. He was monitored and discharged on 4 January 2019. A follow-up appointment in February 2019 revealed no ongoing injuries.
Leonardis Tjandra was transferred to Perth Children's Hospital in a critical condition, having sustained severe head injuries in the accident. On 31 December 2018, clinical examination confirmed the absence of brain stem reflexes. He was re-examined on 3 January 2019 and neurosurgeons confirmed that no surgical or medical treatment could reverse his brain dead condition. His body was surviving as a result of ventilation, but would eventually fail. He was disconnected from life support and died on 15 January 2019.
A forensic collision report was prepared in relation to the crash. It was concluded that the respondent was travelling at a speed of 96 km an hour about 3 km prior to the collision, but there was insufficient physical evidence at the scene to determine why the Toyota collided with the rear of the stationary Hyundai van.

The sentencing judge's sentencing remarks and the respondent's personal circumstances

The sentencing judge recounted the maximum penalties for the offences, the facts and circumstances of the offending and the impact of the offending upon the victims.
His Honour referred to the respondent's personal circumstances and antecedents.
The respondent was aged 34 at the time of the offending and was aged 35 when sentenced. His early childhood was dysfunctional. The respondent struggled at school. However, after leaving school he became proficient as a motor vehicle mechanic.
The respondent began using heroin intravenously at the age of 13. Heroin has been his drug of choice. He has also used other illicit drugs from time to time.
The respondent's physical health is good.
The information before the sentencing judge included a pre‑sentence report dated 28 May 2019; a psychological report dated 29 April 2019 from Jane Sampson, a clinical and forensic psychologist; and a psychiatric report dated 15 May 2019 from Dr Mark Hall, a consultant forensic psychiatrist.
Dr Hall noted in his report that the respondent had described a childhood characterised by drug use, family dysfunction and exposure to criminal and anti‑social behaviour. His biological father and step‑father committed suicide. The respondent has had a number of serious relationships of considerable duration. However, they have been marred by conflict, substance abuse and jealously, and have been interrupted by the respondent's imprisonment. The respondent is currently single.
Dr Hall diagnosed the respondent as suffering from:
(a)heroin dependence - in remission (in custody);
(b)personality disorder with mixed anti‑social and borderline traits;
(c)polysubstance abuse;
(d)post‑traumatic stress disorder;
(e)institutionalisation; and
(f)adverse early life experiences.
However, Dr Hall said that there was no evidence that the respondent suffers from a serious or medically treatable mental illness. There was no medical or psychiatric explanation for the respondent's offending.
The respondent has a serious and extensive prior criminal record. His Honour noted that the respondent has spent most of his adult life in custody. He has previous convictions for, amongst other offences, stealing (multiple offences); stealing a motor vehicle (multiple offences); receiving (multiple offences); criminal damage (multiple offences); reckless driving (multiple offences); failing to stop after an accident; sundry other traffic offences; aggravated burglary (multiple offences); burglary with intent (multiple offences); possessing stolen or unlawfully obtained property; gaining benefits by fraud (multiple offences); criminal damage or destruction of property (multiple offences); and drug offences.
The respondent has at least 25 previous convictions for stealing a motor vehicle. Some of those convictions were recorded in 2009, 2010, 2014 and 2015.
On 20 October 2016, the respondent was disqualified for life from holding or obtaining a driver's licence following his conviction for reckless driving and driving without a licence.
The sentencing judge referred to the victim impact statements. It is apparent from those statements that the victims have suffered very substantial trauma as a result of the respondent's offending.
His Honour said the respondent's offending was aggravated by the fact that he was driving a stolen vehicle and that he had been disqualified for life from holding or obtaining a driver's licence.
The sentencing judge found that the respondent had been driving at an excessive speed, had failed to take any evasive action to avoid the collision and had shown a complete disregard for other users of the road.
His Honour discounted each head sentence he would otherwise have imposed by 25%, pursuant to s 9AA of the Sentencing Act 1995 (WA), on account of the respondent's pleas of guilty.
The sentencing judge said that the respondent, by his pleas of guilty, had accepted responsibility for his offending and had facilitated the administration of justice. The respondent had evinced general remorse. Since the collision he had suffered from depression and had attempted suicide because of his significant distress in relation to the offending. The respondent was in protective custody. He had undertaken some courses in prison. His Honour accepted that the respondent's dysfunctional childhood was mitigatory.

Grounds 1, 2 and 3: the respondent's submissions

Counsel for the respondent submitted that the sentencing judge was aware of, and gave careful attention to, the individual sentences to be imposed for counts 2, 3, 4, 5 and 8 and to the total effective sentence.
It was submitted that decisions of this court in reasonably comparable cases are distinguishable on their facts and do not indicate that any of the individual sentences for counts 2, 3, 4, 5 and 8 are manifestly inadequate or that the total effective sentence infringed the first limb of the totality principle.

The grounds of appeal: the relevant provisions of the RT Act

At the material time, s 59(1) of the RT Act provided, relevantly:
If a motor vehicle driven by a person (the driver) is involved in an incident occasioning the death of, or grievous bodily harm to, another person and the driver was, at the time of the incident, driving the motor vehicle -
(a)while under the influence of alcohol to such an extent as to be incapable of having proper control of the vehicle; or
(ba)while under the influence of drugs to such an extent as to be incapable of having proper control of the vehicle; or
(bb)while under the influence of alcohol and drugs to such an extent as to be incapable of having proper control of the vehicle; or
(b)in a manner (which expression includes speed) that is, having regard to all the circumstances of the case, dangerous to the public or to any person,
the driver commits a crime and is liable to the penalty in subsection (3).
At the material time, s 59(3) of the RT Act provided:
A person convicted on indictment of an offence against this section is liable -
(a)if the offence is against subsection (1)(a), (ba) or (bb), or the offence is against subsection (1)(b) and is committed in circumstances of aggravation, to a fine of any amount and to imprisonment for -
(i)20 years, if the person has caused the death of another person; or
(ii)14 years, if the person has caused grievous bodily harm to another person;
or
(b)in any other circumstances, to a fine of any amount and to imprisonment for -
(i)10 years, if the person has caused the death of another person; or
(ii)7 years, if the person has caused grievous bodily harm to another person,
and, in any event, the court convicting that person shall order that he be disqualified from holding or obtaining a driver's licence for a period of not less than 2 years.

The expression 'circumstances of aggravation' in s 59(3) of the RT Act is defined in s 49AB(1) of the RT Act. Section 49AB provides, relevantly:
(1)For the purposes of this Division, 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; or
(aa) the person has never held a prescribed authorisation; or
(ab)the person has held a prescribed authorisation but is a person described in section 49(3)(a), (b), (ca), (c) or (da); or
(ac)the person holds a prescribed authorisation but the prescribed authorisation does not authorise the person to drive a vehicle of the kind concerned; or
(ad)the person commits an offence under the Road Traffic (Authorisation to Drive) Act 2008 section 38(1); or
(b)the person was driving the vehicle concerned on a road at 30 km/h or more above the speed limit; or
(c)the person was driving the vehicle concerned to escape pursuit by a police officer.
(2A)Subsection (1)(ac) does not apply to a person who is a member of a class of persons prescribed for the purposes of the subsection by regulations made under the Road Traffic (Authorisation to Drive) Act 2008 section 4(7).
(2)For the purposes of subsection (1)(c) it does not matter whether the pursuit was proceeding, or had been suspended or terminated, at the time of the alleged offence.

The grounds of appeal: their merits

A ground of appeal which asserts that a sentence is manifestly inadequate asserts the existence of an implied error. It is necessary, in determining whether a sentence is manifestly inadequate, to examine it from the perspective of the maximum sentence prescribed by law for the relevant offence, the standards of sentencing customarily observed with respect to that offence, the place which the criminal conduct occupies on the scale of seriousness of offences of the kind in question, and the offender's personal circumstances.
The first limb of the totality principle requires that the total effective sentence imposed on an offender who has committed multiple offences must bear a proper relationship to the overall criminality involved in all of the offences (including those, if any, in respect of which the offender is still serving a term of imprisonment), viewed in their entirety, and after having regard to all relevant circumstances, including those referable to the offender personally (and including, for example, the desirability of accommodating any wish to rehabilitate), and the total effective sentences imposed in comparable cases.
The practical effect of the totality principle is, ordinarily, to arrive at an aggregate sentence which is less than that which would have been arrived at merely by adding up all of the terms appropriate for the individual offences. See Roffey v The State of Western Australia.[1] Also, the severity or leniency of an individual sentence (which is not manifestly excessive or manifestly inadequate) is relevant in evaluating whether the total effective sentence infringes the first limb of the totality principle. See Giglia v The State of Western Australia;[2] Gaskell v The State of Western Australia.[3]
[1] Roffey v The State of Western Australia [2007] WASCA 246 [26] (McLure JA; Steytler P & Miller JA agreeing).
[2] Giglia v The State of Western Australia [2010] WASCA 9 [40] (Owen JA; McLure P & Pullin JA agreeing).
[3] Gaskell v The State of Western Australia [2018] WASCA 8 [52] ‑ [60] (Buss P), [150] ‑ [151] (Mazza & Beech JJA).
The guidance afforded by comparable cases is flexible rather than rigid. The mere fact a sentence is within the range of other sentences imposed for similar offending does not necessarily establish that there was an appropriate exercise of the sentencing discretion in the particular case. Similarly, the mere fact a sentence is outside the range does not necessarily establish that the exercise of the sentencing discretion in the particular case miscarried. A sentencing range for comparable offending is merely one of the factors to be taken into account in deciding whether a sentence is manifestly inadequate. A range of sentences customarily imposed is of significance for the purpose of ensuring broad consistency in the sentencing of offenders in broadly comparable cases. However, a sentencing range for comparable cases does not fix the range of a sound exercise of the sentencing discretion in a particular case.
When an appellate court dismisses an appeal against sentence, and when it allows an appeal against sentence and resentences the offender, the court's decision on the sentencing outcome does not, of itself, fix the upper or lower limit of the range.
If, in a particular case where manifest inadequacy is alleged, there are no directly comparable cases, this court is not precluded from deciding that an individual sentence is manifestly inadequate. It merely has the consequence that this court has no directly comparable cases to provide a yardstick against which to assess the sentence. Previous sentencing ranges are only one pointer to the inadequacy of a sentence. See Munda v The State of Western Australia;[4] The State of Western Australia v Doyle;[5] McAlpine v The State of Western Australia.[6]
[4] Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600 [38] - [39] (French CJ, Hayne, Crennan, Kiefel, Gageler & Keane JJ).
[5] The State of Western Australia v Doyle [2017] WASCA 207 [36] (Buss P, Mazza JA & Hall J).
[6] McAlpine v The State of Western Australia [2018] WASCA 195 [54] (Buss P & Mazza JA).
Similarly, if, in a particular case where an infringement of the first limb of the totality principle is alleged, there are no directly comparable cases, this court is not precluded from deciding that a total effective sentence does infringe the first limb of the totality principle. It merely has the consequence that this court has no directly comparable cases to provide a yardstick against which to judge the adequacy of the total effective sentence imposed at first instance. See Moore v The State of Western Australia.[7]
[7] Moore v The State of Western Australia [2019] WASCA 35 [51] (Buss P & Mazza JA).
Except where a mandatory sentence is prescribed, a sentencing judge exercises a discretionary judgment which is subject to applicable statutory provisions and judge-made law. See Barbaro v The Queen.[8]
[8] Barbaro v The Queen [2014] HCA 2; (2014) 253 CLR 58 [25] (French CJ, Hayne, Kiefel & Bell JJ).
The discretion conferred on sentencing judges is, of course, of fundamental importance and this court may not substitute its opinion as to sentencing for that of the sentencing judge merely because it would have exercised the discretion in a different manner.
A sentencing judge is obliged to sentence an offender in accordance with the sentencing principles set out in pt 2 div 1 of the Sentencing Act. Part 2 div 1 comprises s 6 to s 9AA.
By s 6(1), a sentence imposed on an offender must be commensurate with the seriousness of the offence. This is a fundamental sentencing principle. Section 6(2) provides that the seriousness of an offence must be determined by taking into account the statutory penalty for the offence (par (a)); the circumstances of the commission of the offence, including the vulnerability of any victim of the offence (par (b)); any aggravating factors (par (c)); and any mitigating factors (par (d)). By s 7(1), aggravating factors are those factors which, in the court's opinion, increase the culpability of the offender. Section 7(2) provides that an offence is not aggravated by the fact that the offender pleaded not guilty to it (par (a)); the offender has a criminal record (par (b)); or a previous sentence has not achieved the purpose for which it was imposed (par (c)). By s 8(1), mitigating factors are those factors which, in the court's opinion, decrease the culpability of the offender or decrease the extent to which the offender should be punished. Section 9AA regulates the extent to which the court may reduce, on account of an offender's plea of guilty to a charge for an offence, the sentence that the court would have imposed for the offence if the offender had been found guilty after a plea of not guilty and there were no mitigating factors. Section 9AA does not prevent the court from reducing the 'head sentence' (as defined in s 9AA(1)) for an offence because of any mitigating factor other than a plea of guilty (s 9AA(6)).
In the present case, ground 1 alleges that the sentence of 4 years' immediate imprisonment for count 8 was manifestly inadequate.
Count 8 pleaded an offence of aggravated dangerous driving occasioning the death of Leonardis Tjandra. The circumstances of aggravation were that the appellant unlawfully drove the Toyota Hilux vehicle without the owner's consent and that the appellant drove the vehicle while he was disqualified from holding or obtaining a driver's licence.
The maximum penalty for the offence alleged in count 8 is 20 years' imprisonment. See s 59(1)(b) read with s 59(3)(a)(i) and the definition of 'circumstances of aggravation' in s 49AB(1)(a) and (ab) of the RT Act.
We have considered a number of decisions of this court involving appeals against sentence for dangerous driving occasioning death where the maximum penalty was 20 years' imprisonment. See, in particular, The State of Western Australia v Gibbs;[9] The State of Western Australia v Butler;[10] Barron v The State of Western Australia;[11] Devine v The State of Western Australia;[12] Billing v The State of Western Australia;[13] The State of Western Australia v Tittums;[14] Gelmi v The State of Western Australia.[15] Butler and Barron were concerned, relevantly, with dangerous driving occasioning death, contrary to s 59(1)(a) of the RT Act. Gibbs, Devine, Billing, Tittums and Gelmi were concerned, relevantly, with dangerous driving occasioning death, contrary to s 59(1)(b) of the RT Act, in circumstances of aggravation. It is unnecessary to repeat the relevant facts and circumstances of those cases or the sentences imposed. There are some comparable features between some of those cases and the present case but there are also distinguishing features.
[9] The State of Western Australia v Gibbs [2009] WASCA 7; (2009) 192 A Crim R 399.
[10] The State of Western Australia v Butler [2009] WASCA 110.
[11] Barron v The State of Western Australia [2010] WASCA 27; (2010) 55 MVR 123.
[12] Devine v The State of Western Australia [2010] WASCA 94; (2010) 202 A Crim R 1.
[13] Billing v The State of Western Australia [2017] WASCA 80; (2017) 80 MVR 127.
[14] The State of Western Australia v Tittums [2018] WASCA 23; (2018) 271 A Crim R 298.
[15] Gelmi v The State of Western Australia [2019] WASCA 139; (2019) 89 MVR 443.
There is no tariff for offences of the kind committed by the respondent because of the great variation that is possible in the circumstances of the offending and the offenders. See Butler [7]; Billing [40]; Gelmi [68].
The respondent's offending in relation to count 8 was very serious. In particular:
(a)The respondent was driving a stolen vehicle (which was a statutory aggravating factor which increased the applicable maximum penalty).
(b)He was driving while disqualified for life from holding or obtaining a driver's licence (which was a further statutory aggravating factor which increased the applicable maximum penalty).
(c)He was driving at a speed of 96 km an hour about 3 km before the collision. An eye witness estimated that the appellant was travelling at about 100 km an hour immediately before the collision.
(d)He did not brake, swerve or attempt to steer around the victims' van which was stationary at a red traffic light. The impact of the collision caused the front of the van to become wedged under the trailer of a Woolworths truck which was stationary at the red traffic light in front of the van.
(e)The respondent demonstrated a complete disregard for other users of the road.
The respondent was aged 34 when he committed the offence. He was not youthful or inexperienced for sentencing purposes.
As we have mentioned, the respondent had a serious and extensive prior criminal record. Although the fact that the respondent had a prior criminal record, and the fact that previous sentences imposed on him had not achieved the purposes for which they were imposed, did not aggravate the seriousness of the offending in question, they indicated that the respondent was not entitled to any leniency on the ground that he was ordinarily of good character. His history of stealing motor vehicles and his conduct in wilfully disregarding his lifetime disqualification from holding or obtaining a driver's licence required that significant weight be given to personal deterrence and the protection of vulnerable members of the public in motor vehicles on public roads. General deterrence was also an important sentencing factor.
The principal mitigating factor was the respondent's plea of guilty at the first reasonable opportunity. There were other mitigating factors to which we have referred at [55] above.
In our opinion, the sentence of 4 years' immediate imprisonment for count 8 was not commensurate with the seriousness of the offence. We are satisfied, after considering all relevant facts and circumstances and all relevant sentencing factors, that the length of the sentence was unreasonable or plainly unjust. That is the only conclusion reasonably open when the sentence is viewed from the perspective of the maximum penalty; the facts and circumstances of the offence; the seriousness of the offending (including the vulnerability of the victim); the general pattern of sentencing for offences of this kind; the importance of personal and general deterrence and the protection of vulnerable members of the public in motor vehicles on public roads as sentencing considerations; and all mitigating factors. The sentence was not merely 'lenient' or 'at the lower end of the available range'. It was substantially less than the sentence that was open to his Honour on a proper exercise of his discretion.
Ground 1 of the appeal has been made out.
In the present case, ground 2 alleges that the individual sentences of 2 years 6 months' immediate imprisonment for counts 2, 3 and 4 and the individual sentence of 2 years' immediate imprisonment for count 5 were manifestly inadequate.
Each of counts 2, 3, 4 and 5 pleaded an offence of aggravated dangerous driving occasioning grievous bodily harm. The circumstances of aggravation were those pleaded in relation to count 8.
The maximum penalty for each of the offences alleged in counts 2, 3, 4 and 5 is 14 years' imprisonment. See s 59(1)(b) read with s 59(3)(a)(ii) and the definition of 'circumstances of aggravation' in s 49AB(1)(a) and (ab) of the RT Act.
There is a paucity of decisions of this court involving appeals against sentence for aggravated dangerous driving occasioning grievous bodily harm where the maximum penalty was 14 years' imprisonment. See, however, Devine; The State of Western Australia v Berry;[16] Paulose v The State of Western Australia.[17] We have also considered decisions of this court involving appeals against sentence for non‑aggravated dangerous driving occasioning grievous bodily harm where the maximum penalty was 7 years' imprisonment. See, for example, Libri v The State of Western Australia;[18] Lutumba v The State of Western Australia.[19] It is unnecessary to repeat the relevant facts and circumstances of the cases we have mentioned or the sentences imposed. There are some comparable features between some of those cases and the present case but there are also distinguishing features.
[16] The State of Western Australia v Berry [2016] WASCA 113; (2016) 76 MVR 285.
[17] Paulose v The State of Western Australia [2019] WASCA 182; (2019) 90 MVR 386.
[18] Libri v The State of Western Australia [2013] WASCA 113.
[19] Lutumba v The State of Western Australia [2013] WASCA 172.
We have referred, in the course of considering ground 1 of the appeal, to the serious features of the respondent's offending in relation to the incident in question.
We are satisfied that the individual sentences of 2 years 6 months' immediate imprisonment for counts 2, 3 and 4 and the individual sentence of 2 years' immediate imprisonment for count 5 were not commensurate with the seriousness of the offences. After considering all relevant facts and circumstances and all relevant sentencing factors, we are persuaded that the length of each sentence was unreasonable or plainly unjust. That is the only conclusion reasonably open when each sentence is viewed from the perspective of the maximum penalty; the facts and circumstances of the offence; the seriousness of the offending (including the vulnerability of the victim); the general pattern of sentencing for offences of this kind; the importance of personal and general deterrence and the protection of vulnerable members of the public in motor vehicles on public roads as sentencing considerations; and all mitigating factors. Each sentence was not merely 'lenient' or 'at the lower end of the available range'. Each sentence was substantially less than the sentence that was open to his Honour on a proper exercise of his discretion.
Ground 2 of the appeal has been made out.
In the present case, ground 3 alleges that the total effective sentence of 7 years 6 months' imprisonment infringed the first limb of the totality principle.
In our opinion, the total effective sentence of 7 years 6 months' imprisonment did not bear a proper relationship to the overall criminality involved in all of the respondent's offences, viewed together, and having regard to all relevant facts and circumstances and all relevant sentencing factors. As we have mentioned, in the course of considering grounds 1 and 2 of the appeal, significant weight had to be given to personal and general deterrence and the protection of vulnerable members of the public in motor vehicles on public roads. The objective facts and circumstances of the offending, viewed as a whole, were very serious. The total effective sentence was unreasonable or plainly unjust. It was not merely 'lenient' or 'at the lower end of the available range'. The total effective sentence was substantially less than the total effective sentence that was open to his Honour on a proper exercise of his discretion.
As we will explain, we consider that, in the exercise of this court's discretion to resentence the respondent, different and substantially higher sentences of immediate imprisonment should be imposed. See s 31(4)(a) of the Criminal Appeals Act 2004 (WA).

The outcome of the appeal and the resentencing of the respondent

Counsel for the respondent did not submit that the residual discretion under s 31(4) of the Criminal Appeals Act should be exercised. The respondent does not, of course, bear an onus to establish that the residual discretion should be exercised in his favour. Rather, it is incumbent on the State to negate any reason why the residual discretion of this court not to interfere should be exercised. See CMB v Attorney General (NSW).[20]
[20] CMB v Attorney General (NSW) [2015] HCA 9; (2015) 256 CLR 346 [33] - [34] (French CJ & Gageler J), [66] (Kiefel, Bell & Keane JJ).
In our opinion, there is no basis, in the present case, for invoking the residual discretion. As we have mentioned, the impugned sentences imposed by the sentencing judge were substantially less than the sentences open on a proper exercise of the sentencing discretion. Appealable error has been very clearly established. This court's intervention is necessary to ensure that proper sentencing standards are adopted and maintained for the relevant offences.
We would allow the appeal.
His Honour's sentencing decision, including the sentences imposed and the orders made by his Honour, should be set aside.

This court has the material necessary to resentence the respondent.
Like the sentencing judge, we would allow a discount of 25%, pursuant to s 9AA of the Sentencing Act, on the head sentence we would otherwise have imposed for each offence in the indictment, on account of the plea of guilty. We have also reduced each sentence we would otherwise have imposed for each offence to reflect the other mitigating factors.
We would exercise the sentencing discretion afresh by imposing sentences of immediate imprisonment in respect of the counts in the indictment as follows:
(a)count 1: 2 years;
(b)count 2: 4 years 6 months;
(c)count 3: 4 years 6 months;
(d)count 4: 4 years 6 months;
(e)count 5: 4 years;
(f)count 6: 18 months;
(g)count 7: 18 months;
(h)count 8: 6 years 6 months;
(i)count 9: 18 months; and
(j)count 10: 3 years.
We would order that the new sentence for count 8 be the head sentence; the new sentences for counts 1 and 6 be served cumulatively upon each other and cumulatively upon the new sentence for count 8; and that all of the other new sentences be served concurrently with each other and concurrently with the new sentence for count 8. The new total effective sentence in respect of the counts in the indictment is therefore 10 years' imprisonment.
Like the sentencing judge, we would impose a driver's licence disqualification of 2 years in respect of each of counts 2, 3, 4, 5, 6, 7, 8 and 10 and a driver's licence disqualification of 1 year in respect of count 9. Also, like his Honour, we would order that the terms of disqualification for counts 2, 9 and 10 be served cumulatively and that the terms of disqualification for the other counts be served concurrently. The total effective driver's licence disqualification is therefore 5 years.
We would not interfere with the compensation order in the amount of $13,600 payable to Edwin Setiawan Tjandra, the victim in count 5.
The new total effective sentence of 10 years' imprisonment should be taken to have taken effect on 29 December 2018. Like his Honour, we would make a parole eligibility order. The respondent will be eligible to be considered for release on parole when he has served 8 years in custody calculated from 29 December 2018.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
JM
Research Associate to the Honourable Justice Buss
5 AUGUST 2020