The State of Western Australia v Murray
[2020] WASCA 190
•16 NOVEMBER 2020
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: THE STATE OF WESTERN AUSTRALIA -v- MURRAY [2020] WASCA 190
CORAM: BUSS P
MAZZA JA
BEECH JA
HEARD: 14 AUGUST 2020
DELIVERED : 16 NOVEMBER 2020
FILE NO/S: CACR 201 of 2019
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Appellant
AND
JAMES THOMAS MURRAY
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: BRADDOCK DCJ
File Number : IND 692 of 2018
Catchwords:
Criminal law - State appeal against sentence - Respondent convicted after trial of one count of dangerous driving occasioning death and one count of dangerous driving occasioning grievous bodily harm - Offending arose out of a single incident - Manifest inadequacy - Totality
Legislation:
Criminal Appeals Act 2004 (WA), s 31(4)
Road Traffic Act 1971 (WA), s 59(1)(b), s 59(3)(b)
Result:
Appeal allowed
Primary judge's sentencing decision set aside
Respondent resentenced
Category: D
Representation:
Counsel:
| Appellant | : | Ms A L Forrester SC |
| Respondent | : | Mr S D Freitag SC |
Solicitors:
| Appellant | : | Director of Public Prosecutions (WA) |
| Respondent | : | In person |
Case(s) referred to in decision(s):
Barbaro v The Queen [2014] HCA 2; (2014) 253 CLR 58
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
Eves v The State of Western Australia [2008] WASCA 7; (2008) 49 MVR 259
Gaskell v The State of Western Australia [2018] WASCA 8
Giglia v The State of Western Australia [2010] WASCA 9
Law v The Queen [2019] WASCA 81
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
McGarry v The Queen [2001] HCA 62; (2001) 207 CLR 121
Moore v The State of Western Australia [2019] WASCA 35
Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600
Roffey v The State of Western Australia [2007] WASCA 246
Rubin v The State of Western Australia [2016] WASCA 2; (2016) 75 MVR 274
Sathitpittayayudh v The State of Western Australia [2015] WASCA 152
The State of Western Australia v Butler [2009] WASCA 110
The State of Western Australia v Cairns [2006] WASCA 178
The State of Western Australia v Doyle [2017] WASCA 207
Timbrell v The State of Western Australia [No 2] [2013] WASCA 269; (2013) 240 A Crim R 1
YDN v The State of Western Australia [2018] WASCA 62
JUDGMENT OF THE COURT:
This is a State appeal against sentence.
The respondent was charged on indictment with two counts.
Count 1 alleged that on 30 July 2017, at Bedford, a motor vehicle driven by the respondent was involved in an incident occasioning the death of Mary Rigby, and that at the time of the incident the respondent drove the motor vehicle in a manner that was, having regard to all the circumstances of the case, dangerous to the public or to any person, contrary to s 59(1)(b) of the Road Traffic Act 1971 (WA) (the RT Act).
Count 2 alleged that on the same date and at the same place, a motor vehicle driven by the respondent was involved in an incident occasioning grievous bodily harm to Thomas Murray, and that at the time of the incident the respondent drove the motor vehicle in a manner that was, having regard to all the circumstances of the case, dangerous to the public or to any person, contrary to s 59(1)(b) of the RT Act.
The respondent pleaded not guilty.
On 15 August 2019, after a trial before Braddock DCJ and a jury, the respondent was convicted of both charges.
The maximum penalty for count 1 is 10 years' imprisonment and a fine of any amount. The maximum penalty for count 2 is 7 years' imprisonment and a fine of any amount. See s 59(3)(b) of the RT Act.
On 4 December 2019, the trial judge sentenced the respondent to 2 years 3 months' immediate imprisonment on count 1 and 6 months' immediate imprisonment on count 2. Her Honour ordered that the individual sentences be served cumulatively. The total effective sentence was therefore 2 years 9 months' immediate imprisonment. A parole eligibility order was made. The total effective sentence began on 4 December 2019. Her Honour imposed a driver's licence disqualification of 2 years.
We would allow the appeal. Her Honour's sentencing decision should be set aside and the respondent resentenced by this court.
The issues in dispute at the trial
At the trial, the respondent formally admitted that a vehicle driven by him was involved in an incident occasioning the death of Mrs Rigby and grievous bodily harm to the respondent's son, Thomas Murray.
At the material time, the respondent was driving his vehicle on Grand Promenade, Bedford. Thomas Murray, who was aged 18 years, was a passenger in his vehicle.
The respondent's vehicle collided with a vehicle being driven by Mrs Rigby.
The State's case at the trial was that the respondent lost control of his vehicle while he was performing an overtaking manoeuvre. The manoeuvre was accompanied by marked acceleration and excessive speed. The manoeuvre, acceleration and excessive speed constituted dangerous driving.
The respondent's case at the trial was that he lost control of his vehicle during the overtaking manoeuvre as a result of a mechanical fault in his vehicle which caused the vehicle to yaw to the right. The respondent gave evidence at the trial and called an expert witness in support of his case.
The respondent sought to prove, on the balance of probabilities, that Mrs Rigby's death and the grievous bodily harm suffered by his son, Thomas, were not in any way attributable to the manner (including speed) in which the respondent's vehicle was driven. See s 59B(6)(b) of the RT Act.
The jury, by their verdicts of guilt, necessarily rejected the respondent's defence, and were satisfied beyond reasonable doubt that at the time of the incident the respondent was driving his vehicle dangerously.
The facts and circumstances of the offending
The facts and circumstances of the offending were not in dispute before this court. They were, relevantly and in essence, as follows.
The respondent was driving along Grand Promenade on a Sunday morning. He executed a manoeuvre during which he lost control of his vehicle which then careered across the central reservation into the path of a vehicle being driven by Mrs Rigby.
At the material time, the respondent drove his vehicle at excessive speed and under heavy acceleration.
The manoeuvre performed by the respondent, and the correcting of the manoeuvre from the right-hand lane into the left-hand lane and straightening up, on a damp road, caused a loss of traction which led to the respondent losing control of his vehicle.
Her Honour, consistently with the jury's verdict, rejected the respondent's evidence to the effect that he had safely effected the manoeuvre, straightened up and subsequently lost control due to a mechanical defect.
The trial judge accepted the evidence of the eyewitnesses, Katherine Lee and Inia Ruri, that the respondent lost control immediately in front of their vehicles.
Her Honour also accepted the evidence of the eyewitnesses that the respondent was speeding as he drove past Morley Primary School and that he was speeding as he drove along Grand Promenade before stopping at traffic lights. The respondent's speeding was not an isolated or momentary incident.
The respondent was driving at a speed well in excess of the 60 km an hour speed limit. The trial judge accepted the evidence of Sergeant Magorian to the effect that, at one point, the respondent's speed exceeded 100 km an hour. Although his speed may have exceeded 100 km for only a short time, the respondent was travelling considerably in excess of the speed limit.
The respondent knew that he was driving a very high-powered vehicle which was capable of significant acceleration.
Her Honour rejected the proposition that there had been any involvement of mechanical failure. The most logical explanation for the dissociation of the differential from the driveshaft of the respondent's vehicle (which the respondent contended resulted from mechanical failure) was the impact of the left-hand rear wheel of his vehicle with the kerb after his vehicle was involved in the collision with Mrs Rigby's vehicle.
The trial judge concluded that the respondent's dangerous driving was in the mid to higher range of conduct of its kind. The collision and its tragic consequences were caused by the respondent's manner of driving, which included unnecessary speed and the mishandling of the vehicle as he attempted to execute the overtaking manoeuvre. The respondent must have been 'somewhat impatient on that morning for no apparent reason' (ts 965). The respondent was not frank with the court about his speeding, acceleration or the manner in which he executed the manoeuvre. Her Honour concluded that the respondent had driven at an angle through a small gap which had opened between the vehicles (driven by Ms Lee and David Nolan).
The trial judge's sentencing remarks and the respondent's personal circumstances
The information before the trial judge, for the purposes of sentencing, included:
(a)a pre‑sentence report dated 25 October 2019;
(b)a psychological report dated 25 November 2019 from Cinzia Zuin, a psychologist;
(c)three victim impact statements concerning the impact of Mrs Rigby's death upon secondary victims;
(d)medical evidence in relation to the injuries suffered by Thomas Murray (the respondent's son) in the collision and his prognosis;
(e)medical evidence in relation to the injuries suffered by the respondent in the collision; and
(f)written character and employment‑related references in relation to the respondent.
Her Honour noted in her sentencing remarks that Mrs Rigby's death has had 'incredibly wide‑ranging consequences [for] all who knew her' (ts 965). Her death had a particularly serious impact upon her son, Brendan, being a child with Down Syndrome, who died a year after the collision. Her Honour said that Brendan would have been 'inconsolable' (ts 965).
Thomas Murray suffered dreadful injuries. He sustained a very severe brain injury, extensive orthopaedic fractures and internal injuries. Thomas has significant cognitive impairment, especially affecting attention and memory. He has significant deficits in executive function such as planning and organisation, judgment and abstract reasoning. Thomas has ongoing urinary and other difficulties related to a pelvic injury. He continues to receive home‑based occupational therapy and physiotherapy. Thomas is likely to experience accelerated age-related changes to his function due to the brain and orthopaedic injuries. He is socially isolated from his peers and friends due to his disability. Thomas has been unable to return to his university studies or his part-time work, recreation and hobbies. His recovery has been long and is incomplete. The medical evidence indicates that Thomas is unlikely ever to regain his full physical or mental health.
Her Honour accepted that Thomas Murray's disabilities and the respondent's role in caring for his son had been a constant reminder to the respondent of the circumstances of the collision and a source of grief for him. Her Honour also accepted that the respondent had been endeavouring to do all he possibly could to assist his son.
The trial judge found that the respondent had been very respectful of Mrs Rigby and her family. He regretted what he had done and the trauma he had caused.
The respondent was aged 46 at the time of the offending and was aged 49 when sentenced. He has two children, being Thomas and his older sister. The respondent is divorced from their mother. At the time of sentencing, he had been in another relationship for about four years.
The respondent has a good work history. Those who knew him described him as being hard working, skilled and reliable.
Her Honour found that the collision had significantly affected the respondent's physical health. He was unable to return to work for about a year after the collision. Ms Zuin described him as being anxious.
The trial judge noted that the respondent still did not accept full responsibility for the collision in the sense that he asserted at the trial, and continued to maintain, that the collision was caused, or contributed to, by significant mechanical defects in the vehicle he was driving. Her Honour said that the respondent's stance did not accord with reality.
Her Honour concluded, in effect, that only sentences of imprisonment to be served immediately were appropriate.
As to count 1, her Honour said that 'taking into account the things that favour [the respondent] and weighing them against the seriousness of the offending', the appropriate length of the term of imprisonment was 2 years 3 months (ts 970).
As to count 2, her Honour said that 'in any other set of circumstances, an offence of that kind would merit at least 18 months' imprisonment'. Her Honour then said that 'bearing in mind the factors that … favour [the respondent] and also bearing in mind the hardship [that had been suffered by the respondent]', her Honour was 'going to impose a term of 6 months' imprisonment … and order that it be served cumulatively' (ts 970).
The grounds of appeal
The State relies upon three grounds of appeal.
Ground 1 alleges that the sentence of 2 years 3 months' imprisonment for count 1 was manifestly inadequate.
Ground 2 alleges that the sentence of 6 months' immediate imprisonment for count 2 was manifestly inadequate.
Ground 3 alleges that the total effective sentence of 2 years 9 months' immediate imprisonment infringed the first limb of the totality principle.
On 9 March 2020, Buss P granted leave to appeal on each of those grounds.
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.
Grounds 1 and 2: 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 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;[1] The State of Western Australia v Doyle;[2] McAlpine v The State of Western Australia.[3]
[1] Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600 [38] - [39] (French CJ, Hayne, Crennan, Kiefel, Gageler & Keane JJ).
[2] The State of Western Australia v Doyle [2017] WASCA 207 [36] (Buss P, Mazza JA & Hall J).
[3] McAlpine v The State of Western Australia [2018] WASCA 195 [54] (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.[4]
[4] 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 1995 (WA). 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.
It is convenient, first, to consider ground 2 which alleges that the sentence of 6 months' immediate imprisonment for count 2 is manifestly inadequate.
As we have mentioned, the maximum penalty for the offence of dangerous driving occasioning grievous bodily harm, contrary to s 59(1)(b) of the RT Act, where the offence is not committed in circumstances of aggravation, is 7 years' imprisonment and a fine of any amount. See s 59(3)(b)(ii) of the RT Act.
There are few 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 and a fine of any amount. See, however, Libri v The State of Western Australia;[5] Lutumba v The State of Western Australia;[6] Timbrell v The State of Western Australia [No 2];[7] Rubin vThe State of Western Australia.[8] It is unnecessary to repeat the relevant facts and circumstances of those cases. There are some comparable features between those cases and the present case, but there are also distinguishing features.
[5] Libri v The State of Western Australia [2013] WASCA 113.
[6] Lutumba v The State of Western Australia [2013] WASCA 172.
[7] Timbrell v The State of Western Australia [No 2] [2013] WASCA 269; (2013) 240 A Crim R 1.
[8] Rubin vThe State of Western Australia [2016] WASCA 2; (2016) 75 MVR 274.
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 The State of Western Australia v Butler;[9] Billing v The State of Western Australia.[10]
[9] The State of Western Australia v Butler [2009] WASCA 110 [7] (Wheeler JA; Pullin JA agreeing).
[10] Billing v The State of Western Australia [2017] WASCA 80; (2017) 80 MVR 127 [40] (Mazza JA; Buss P and Newnes JA agreeing).
In the present case, it is not apparent, from the trial judge's sentencing remarks, that her Honour reduced the sentence of 6 months' immediate imprisonment for count 2 in the application of the totality principle. Indeed, her Honour's sentencing remarks indicate that she did not reduce the sentence on account of totality considerations. Her Honour said that 'in any other set of circumstances' an offence of the kind charged in count 2 would merit at least 18 months' imprisonment (ts 970). However, her Honour decided, in effect, having regard to the mitigating factors and 'the hardship' suffered by the respondent, that a term of 6 months' imprisonment for count 2 was appropriate (ts 970). Her Honour's reference to 'the hardship' suffered by the respondent appears to have been to the injuries the respondent and his son, Thomas, sustained, to the respondent's role in caring for Thomas and to the very significant emotional pain the respondent will continue to experience because of the tragic consequences of the collision for his son. Her Honour completed the imposition of the individual sentences for counts 1 and 2 before she considered the issue of totality. Counsel for the respondent did not suggest that her Honour had reduced the sentence of 6 months' immediate imprisonment for count 2 in the application of the totality principle.
We have referred, in the course of recounting the facts and circumstances of the offending, to the serious aspects of the respondent's driving. Her Honour concluded, appropriately, that the respondent's dangerous driving was in the mid to high range of conduct of its kind.
There were a number of mitigating factors. The respondent was of prior good character. His only previous conviction was in 1992 for disorderly conduct. The respondent has been gainfully employed throughout his adult life. He is most unlikely to reoffend. The collision has had a serious and ongoing impact on the respondent as a result of the very severe injuries and the very significant residual disabilities suffered by his son, Thomas. The respondent sustained serious injuries. He regrets what he has done and the trauma he has caused. The profound injuries which the respondent has caused his son to suffer will be an ongoing source of grief for the respondent.
The respondent did not have the mitigation that a plea of guilty would have brought. He was not youthful or inexperienced for sentencing purposes. The respondent did not accept full responsibility for the collision in the sense that he asserted at the trial, and continued to maintain, that the collision was caused, or contributed to, by significant mechanical defects in the vehicle he was driving.
The respondent's prior good character and his expressions of regret are not uncommon in cases of this kind.
We are satisfied that the individual sentence of 6 months' immediate imprisonment for count 2 was not commensurate with the seriousness of the offence. The tragic consequences of the accident for the respondent's son, Thomas, and the associated emotional pain experienced by the respondent could properly moderate the sentence to be imposed, but do not override the necessity to ensure that the sentence imposed on the respondent for count 2 properly reflects the criminality of his offending, having regard to all relevant facts and circumstances (including the grievous bodily harm and residual disabilities suffered by Thomas) and all relevant sentencing principles and factors. Although mercy may properly inform the sentence to be imposed on an offender, the sentence must nevertheless be commensurate with the seriousness of the offence. See s 6 of the Sentencing Act. We are satisfied that, having regard to all relevant facts and circumstances and all relevant sentencing principles and factors, the length of the sentence was unreasonable or plainly unjust. That is the only conclusion reasonably open when the sentence of 6 months' immediate imprisonment is viewed from the perspective of the maximum penalty (7 years' imprisonment and a fine of any amount); the facts and circumstances of the offence; the seriousness of the offending (including the vulnerability of the victim, Thomas Murray); the place which the offending occupies on the scale of seriousness of offences of this kind; the general pattern of sentencing for offences of this kind; the importance of general deterrence and the protection of vulnerable members of the public in motor vehicles on public roads as sentencing considerations; and all mitigating factors. As we have mentioned, the respondent did not have the mitigation that a plea of guilty would have brought. On her Honour's approach, had the respondent entered an early plea of guilty, a sentence significantly less than 6 months' imprisonment would have been appropriate for count 2. The sentence for count 2 was not merely 'lenient' or 'at the lower end of the available range'. It was substantially less than the sentence that was properly open to her Honour on a proper exercise of the sentencing discretion.
Ground 2 has been made out.
It is well established that where a sentencing judge's discretion has miscarried in respect of one component of a sentence including, as in the present case, one of the individual sentences forming part of the total effective sentence, the whole of the sentencing judge's sentencing decision (including all of the sentences) must be set aside, and the offender resentenced. See, for example, McGarry v The Queen;[11] The State of Western Australia v Cairns;[12] Sathitpittayayudh v The State of Western Australia;[13] YDN v The State of Western Australia;[14] Law v The Queen.[15]
[11] McGarry v The Queen [2001] HCA 62; (2001) 207 CLR 121 [9] (Gleeson CJ, Gaudron, McHugh, Gummow & Hayne JJ).
[12] The State of Western Australia v Cairns [2006] WASCA 178 [42] (McLure JA; Buss JA agreeing).
[13] Sathitpittayayudh v The State of Western Australia [2015] WASCA 152 [28] ‑ [29] (Hall J; McLure P & Mazza JA agreeing).
[14] YDN v The State of Western Australia [2018] WASCA 62 [53] (Mazza, Mitchell & Beech JJA).
[15] Law v The Queen [2019] WASCA 81 [134] (Buss P, Beech & Pritchard JJA).
It is therefore unnecessary for this court to consider ground 1 in relation to the individual sentence imposed for count 1.
Ground 3: its merits
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.[16] 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;[17] Gaskell v The State of Western Australia.[18]
[16] Roffey v The State of Western Australia [2007] WASCA 246 [26] (McLure JA; Steytler P & Miller JA agreeing).
[17] Giglia v The State of Western Australia [2010] WASCA 9 [40] (Owen JA; McLure P & Pullin JA agreeing).
[18] Gaskell v The State of Western Australia [2018] WASCA 8 [52] ‑ [60] (Buss P), [150] ‑ [151] (Mazza & Beech JJA).
In Eves v The State of Western Australia,[19] Steytler P and McLure JA observed that, in cases involving multiple offences arising out of a motor vehicle accident, it is open to the sentencing judge to order at least some degree of cumulation. However, it is unsound in principle to sentence in respect of each element of the offence on each count and then wholly cumulate the sentences if that approach would result in multiple punishment for a common element of each offence; for example, that of dangerous driving.
[19] Eves v The State of Western Australia [2008] WASCA 7; (2008) 49 MVR 259.
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.[20]
[20] Moore v The State of Western Australia [2019] WASCA 35 [51] (Buss P & Mazza JA).
It is unnecessary, in circumstances where ground 2 has been made out in relation to the individual sentence imposed for count 2 and having regard to the principle to which we have referred at [66] above, to deal with ground 3.
However, we record our view that, after analysing and weighing all relevant facts and circumstances and all relevant sentencing principles and factors in the context of:
(a)the maximum penalty for each offence;
(b)the overall seriousness of the respondent's offending, considered as a whole;
(c)the importance of general deterrence and the protection of vulnerable members of the public as sentencing factors; and
(d)all matters of mitigation,
the total effective sentence of 2 years 9 months' immediate imprisonment infringed the first limb of the totality principle. Although the trial judge ordered that the sentence she imposed for count 2 be served cumulatively upon the sentence she imposed for count 1, the total effective sentence was not commensurate with the overall seriousness of the respondent's offending, considered as a whole, having regard to all relevant facts and circumstances and all relevant sentencing factors.
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 2004 (WA) 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).[21]
[21] 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. The sentence imposed by the trial judge for count 2 and the total effective sentence 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.
Her Honour's sentencing decision, including the sentences imposed by her Honour, should be set aside.
This court has the material necessary to resentence the respondent. The material includes a statement from Thomas Murray (written with the assistance of his mother and his sister), a letter dated 11 September 2020 from Ms Jan Bishop (who is the case manager for the respondent's son) and a letter dated 10 September 2020 from Ms Rebekah Murray (who is Thomas' mother). Thomas Murray's statement outlines the impact of the incident upon the respondent and the effect of the respondent's incarceration upon Thomas Murray. The letters speak well of the respondent's character, including the care and support he has given to his son, and the adverse impact upon Thomas of the respondent's incarceration. We have had regard to the contents of the statement and the letters.
We have reduced each sentence that we would otherwise have imposed for each offence to reflect the mitigating factors.
We would exercise the sentencing discretion afresh by imposing individual sentences of immediate imprisonment as follows:
(a)count 1: 3 years 3 months; and
(b)count 2: 2 years.
We would, however, in the application of the totality principle (including in recognition of the principles enunciated by Steytler P and McLure JA in Eves: see [70] above), reduce the new sentence for count 2 from 2 years' immediate imprisonment to 9 months' immediate imprisonment.
The new sentence of 9 months' immediate imprisonment for count 2 should be served cumulatively upon the new sentence of 3 years 3 months' immediate imprisonment for count 1.
The new total effective sentence is therefore 4 years' immediate imprisonment. The new sentence for count 1 and the new total effective sentence should be taken to have taken effect on 4 December 2019. The respondent remains eligible for parole. The respondent will be eligible to be considered for release on parole when he has served 2 years in custody calculated from 4 December 2019. The driver's licence disqualification imposed by the trial judge is not disturbed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
KS
Associate to the Honourable Justice Buss16 NOVEMBER 2020
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