The State of Western Australia v Olive - [2011] WASCA 25

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: THE STATE OF WESTERN AUSTRALIA -v- OLIVE [2011] WASCA 25

CORAM: McLURE P
BUSS JA
MAZZA J

HEARD: 17 DECEMBER 2010

DELIVERED : 16 FEBRUARY 2011

FILE NO/S: CACR 36 of 2010

BETWEEN: THE STATE OF WESTERN AUSTRALIA
Appellant
AND
KATRINA ANN OLIVE
Respondent

FILE NO/S :CACR 40 of 2010

BETWEEN :KATRINA ANN OLIVE
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
For File No              :  CACR 36 of 2010
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :KENNEDY CJDC
File No  :IND 1625 of 2009
For File No              :  CACR 40 of 2010
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE MALLEY
File No  :MI 705 of 2009, MI 706 of 2009, MI 707 of 2009

Catchwords:

Criminal law - Appeal against conviction by offender - Three counts of dangerous driving occasioning death - Three deaths - The proper construction and application of relevant provisions of s 59 and s 59B of the Road Traffic Act 1974 (WA) - Whether conviction unsafe or unsatisfactory - Causation - Whether appellant's motor vehicle caused an impact between other vehicles

Appeal against sentence by the State - Sentence of 18 months' immediate imprisonment on each count - Sentences to be served wholly concurrently - Whether totality principle infringed

Statutory construction - Two or more statutory enactments comprising an overlapping legislative scheme - Court of summary jurisdiction may commit an offender to a superior court for sentence - Prosecution notice sent by the court of summary jurisdiction to the superior court 'is to be taken to be an indictment' - Deeming provision - Offender appears before the superior court for sentencing on the basis that, notwithstanding the summary conviction, he or she is liable to the indictment penalty instead of the summary conviction penalty

Legislation:

Criminal Code (WA), s 5(1), s 5(8), s 5(9), s 5(10)
Criminal Procedure Act 2004 (WA), s 3(1), s 46, s 47(1), s 83(2), s 83(5), s 100(1), s 100(2), s 100(4)
Interpretation Act 1984 (WA), s 5, s 67(1a)
Road Traffic Act 1974 (WA), s 59(1), s 59(2), s 59(3), s 59B(1), s 59B(2), s 59B(6)

Result:

CACR 36 of 2010
Appeal dismissed

CACR 40 of 2010
Appeal dismissed

Category: A

Representation:

CACR 36 of 2010

Counsel:

Appellant: Mr B Fiannaca SC
Respondent: Mr L M Levy SC

Solicitors:

Appellant: Director of Public Prosecutions (WA)
Respondent: Corinne Griffin & Co

CACR 40 of 2010

Counsel:

Appellant: Mr L M Levy SC
Respondent: Mr B Fiannaca SC

Solicitors:

Appellant: Corinne Griffin & Co
Respondent: Director of Public Prosecutions (WA)

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

Campbell v The Queen [1981] WAR 286
Commissioner of Stamp Duties v Permanent Trustee Co Ltd (1987) 9 NSWLR 719
Dearman v Dearman [1908] HCA 84; (1908) 7 CLR 549
Eves v The State of Western Australia [2008] WASCA 7; (2008) 49 MVR 259
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
Hunter Douglas Australia Pty Ltd v Perma Blinds [1970] HCA 63; (1970) 122 CLR 49
Jones v The Queen [1997] HCA 12; (1997) 191 CLR 439
Le Blanc v Queensland TAB Ltd [2002] QSC 323; [2003] 2 Qd R 65
Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559
Loizos v Carlton & United Breweries Ltd (1994) 94 NTR 31
Longbottom v The State of Western Australia [2008] WASCA 203; (2008) 38 WAR 396
M v The Queen [1994] HCA 63; (1994) 181 CLR 487
Macquarie Bank Ltd v Fociri Pty Ltd (1992) 27 NSWLR 203
MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606
R v Wheeldon (1978) 33 FLR 402
Southside Autos (1981) Pty Ltd v Commissioner of State Revenue [2008] WASCA 208; (2008) 37 WAR 245
Sweeney v Fitzhardinge [1906] HCA 73; (1906) 4 CLR 716
Taylor v The State of Western Australia [2009] WASCA 226
The Council of the Shire of Redland v Stradbroke Rutile Pty Ltd [1974] HCA 4; (1974) 133 CLR 641
The State of Western Australia v Butler [2009] WASCA 110
Trajkoski v Director of Public Prosecutions (WA) [2010] WASCA 119
Wainer v Rippon [1980] VR 129
Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300

Table of Contents

McLure P's reasons.................................................................................................................. 6
Buss JA's reasons..................................................................................................................... 6
Appeal against conviction: the prosecution case at trial
Appeal against conviction: the defence case at trial
Appeal against conviction: the relevant provisions of the Road Traffic Act as at 7 March 2008
Appeal against conviction: analysis and application of the relevant provisions of the Road Traffic Act as at 7 March 2008
Appeal against conviction: the relevant witnesses at the trial
Appeal against conviction: the magistrate's reasons
Appeal against conviction: the ground of appeal
Appeal against conviction: the ground of appeal: applicable legal principles
Appeal against conviction: the ground of appeal: the magistrate's advantage
Appeal against conviction: Ms Olive's submissions
Appeal against conviction: its merits
Appeal against sentence: the ground of appeal
Appeal against sentence: general
Appeal against sentence: the maximum penalty
Appeal against sentence: customary standards of sentencing
Appeal against sentence: matters personal to Ms Olive
Appeal against sentence: its merits
Appeal against sentence: conclusion
Appeal against sentence: Ms Olive's notice of contention
Appeal against sentence: notice of contention: relevant statutory provisions
Appeal against sentence: notice of contention: Ms Olive's submissions
Appeal against sentence: notice of contention: its merits
Mazza J's reasons................................................................................................................... 40

McLURE P: I agree with Buss JA.
BUSS JA: On 7 March 2008, at about 10.00 pm, a collision occurred between a red Hyundai Coupe motor vehicle and a red Holden Commodore motor vehicle on the Great Northern Highway in Upper Swan. The Hyundai was being driven by Christopher Helwig. He had one passenger, Dylan Sharpe, who was seated in the front passenger seat. The Holden Commodore was being driven by David Rose, who was the sole occupant.
The relevant part of the Great Northern Highway comprises two southbound lanes and one northbound lane. The two southbound lanes merge to form one lane near the point of collision. The relevant part of the highway is subject to a speed limit of 100 km per hour. There are no street lights in the area and the highway has a slight bend to the right after the point where the two southbound lanes merge to form one lane.
Mr Helwig was driving his Hyundai in the left hand lane of the two southbound lanes.
Katrina Olive, the respondent in CACR 36 of 2010 and the appellant in CACR 40 of 2010, was driving a Mitsubishi Magna motor vehicle in the right hand lane of the two southbound lanes. The Mitsubishi Magna had one passenger, Christopher Roberts, who was seated in the front passenger seat.
Mr Rose was driving his Holden Commodore in the single northbound lane.
Mr Helwig and Ms Olive were driving in the same (southerly) direction. Mr Rose was driving in the opposite (northerly) direction.
Ms Olive's vehicle overtook Mr Helwig's vehicle. There was no evidence that their vehicles made any contact with each other.
At about the time Ms Olive overtook Mr Helwig, Mr Helwig lost control of his vehicle and moved into the path of Mr Rose's oncoming vehicle. As a result of the collision, Mr Helwig, Mr Sharpe and Mr Rose were killed. Mr Sharpe and Mr Rose died at the scene and Mr Helwig died in hospital the following morning.
Ms Olive continued to drive south and was not aware of the collision between the Hyundai and the Holden Commodore. Later, while still

engaged on her journey, Ms Olive was stopped by police and spoken to about an unrelated traffic matter. Initially, she gave a false name.

On 7 March 2008, Ms Olive was not the holder of a valid driver's licence. She was legally disentitled to hold a driver's licence. On 22 January 2008, her licence had been suspended in the Magistrates Court for a period of 9 months.
On 31 October 2008, Ms Olive was charged with three offences, each being that she drove a motor vehicle in a manner that was dangerous and, at the time of driving, she was involved in an incident occasioning the death of another, contrary to s 59(1)(b) of the Road Traffic Act 1974 (WA). She pleaded not guilty. After a trial in the Magistrates Court, Magistrate Malley convicted Ms Olive on each charge.
The magistrate determined that, in view of the fact that the summary conviction penalty for each offence was 18 months' imprisonment or a fine of 160 penalty units, as at the date of the incident on 7 March 2008, he was unable to impose a penalty commensurate with the degree of criminality involved in the offending. His Honour therefore committed Ms Olive to the District Court for sentencing pursuant to s 5(9) of the Criminal Code (WA). The maximum penalty available in the District Court for each offence, as at 7 March 2008, was 4 years' imprisonment or a fine of 400 penalty units.
On 23 February 2010, Ms Olive appeared in the District Court. Pursuant to a list of pending charges under s 32 of the Sentencing Act 1995 (WA), Ms Olive pleaded guilty to one charge of driving without a valid motor driver's licence whilst disqualified and one charge of giving a false name to police.
On 4 March 2010, Kennedy CJDC sentenced Ms Olive for the offences of dangerous driving occasioning death and the offences on the s 32 list.
The sentencing judge imposed a sentence of 18 months' immediate imprisonment on each of the three charges of dangerous driving occasioning death. Her Honour also suspended Ms Olive's driver's licence for two years on each charge. The terms of imprisonment and the terms of suspension were ordered to be served concurrently. The total effective term of imprisonment was therefore 18 months' immediate imprisonment. A parole eligibility order was made.
It is unnecessary to refer to the sentences imposed on the charges on the s 32 list.
Ms Olive appeals to this court against her conviction on each charge of dangerous driving occasioning death and the State appeals against the sentencing decision in respect of those charges.
It is convenient, first, to deal with Ms Olive's appeal against conviction, and then with the State's appeal against sentence.

Appeal against conviction: the prosecution case at trial

The prosecution case at trial was that Ms Olive:
(a)drove her vehicle at an excessive speed, being about 120 to 130 km per hour;
(b)overtook Mr Helwig's vehicle at a location at, or near the end of, the overtaking lane;
(c)created a danger to other road users; and
(d)caused an 'incident', namely, she caused Mr Helwig to lose control of his vehicle and, as a result, his vehicle veered onto the northbound lane and collided with Mr Rose's vehicle, occasioning the three deaths.
Ms Olive made the following admissions during a video‑recorded interview with police and in her evidence at trial:
(a)she was driving the Mitsubishi Magna;
(b)she was travelling at a speed of about 120 to 130 km per hour in the 100 km per hour zone; and
(c)she had accelerated to overtake Mr Helwig's vehicle as they approached the end of the two southbound lanes.

Appeal against conviction: the defence case at trial

Ms Olive's case at trial was, relevantly, that the prosecution could not prove beyond reasonable doubt that:
(a)her manner of driving was dangerous; or
(b)there was a causal connection between her driving and the 'incident'.
At trial, it was contended on behalf of Ms Olive that:
(a)immediately after she had overtaken Mr Helwig, she noticed that his vehicle had accelerated towards her vehicle;
(b)her passenger, Mr Roberts, urged her to accelerate so that she would be clear of the Hyundai as they approached the slight bend to the right after the point where the two southbound lanes merge to form one lane;
(c)she did accelerate as the vehicles approached the merge point;
(d)she accelerated because of her concern that her Mitsubishi Magna and Mr Helwig's Hyundai may collide if she did not;
(e)the vehicles did not collide;
(f)she was not aware until the morning of 9 March 2008 that there had been a collision between the Hyundai and the Holden Commodore; and
(g)when she became aware of the collision, she contacted police and arranged to meet with them.

Appeal against conviction: the relevant provisions of the Road Traffic Act as at 7 March 2008

The relevant provisions of the Road Traffic Act as at 7 March 2008 were these.
Section 59 of the Act provided, relevantly:
(1)If a motor vehicle driven by a person (the 'driver') is involved in an incident occasioning the death of … another person and the driver was, at the time of the incident, driving the motor vehicle ‑
(a) …
(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).
…
(2)For the purposes of this section ‑
[(a) deleted]
(b)it is immaterial that the death … might have been avoided by proper precaution on the part of a person other than the person charged … ;
…
Section 59B of the Act provided, relevantly:
(1)For the purposes of section … 59 … , the circumstances in which a motor vehicle is involved in an incident occasioning the death of … a person include those in which the death … is occasioned through ‑
(a)the motor vehicle overturning or leaving a road while the person is being conveyed in or on the motor vehicle (whether as a passenger or otherwise);
(b)the person falling from the motor vehicle while being conveyed in or on it (whether as a passenger or otherwise);
(c)an impact between any object or thing and the motor vehicle while the person is being conveyed in or on the motor vehicle (whether as a passenger or otherwise);
(d)an impact between the person and the motor vehicle;
(e)an impact of the motor vehicle with another vehicle or an object or thing in, on or near which the person is at the time of impact;
(f)an impact with any object on or attached to the motor vehicle; or
(g)an impact with any object that is in motion through falling from the motor vehicle.
(2)For the purposes of section … 59 … , a motor vehicle is also involved in an incident occasioning the death of … a person if the death … is occasioned through the motor vehicle ‑
(a)causing an impact between other vehicles or between another vehicle and any object, thing or person;
(b)causing another vehicle to overturn or leave a road; or
(c)causing a person being conveyed in or on another vehicle to fall from that other vehicle.
…
(6)In any proceeding for an offence against section 59 … it is a defence for the person charged to prove that the death … occasioned by the incident was not in any way attributable (as relevant) ‑
(a) …
(b)to the manner (which expression includes speed) in which the motor vehicle was driven.

Appeal against conviction: analysis and application of the relevant provisions of the Road Traffic Act as at 7 March 2008

Three observations may be made about the relevant provisions of the Road Traffic Act as at 7 March 2008. First, s 59(1)(b) focuses on the manner in which the allegedly offending driver was driving his or her motor vehicle at the time of the 'incident'; in particular, whether the vehicle was being driven in a manner (which expression includes speed) that was, in all the circumstances, dangerous to the public or any person. Secondly, in the context of determining whether the vehicle driven by the allegedly offending driver was involved in an 'incident' occasioning the death of a person, s 59B(1) and s 59B(2) focus on the movement or behaviour of that driver's vehicle rather than on what the driver has done or not done. Thirdly, what the allegedly offending driver has done or not done is, however, the focus of the defence under s 59B(6) in that the defence requires the driver to prove that the death occasioned by the incident was not in any way attributable to the manner in which his or her vehicle was driven. Accordingly, there is a different focus between what the prosecution must prove, and what the defence may prove, in relation to causation.
The relevant provisions of the Road Traffic Act as at 7 March 2008 apply to the facts and circumstances of the present case, as follows:
(a)Ms Olive's Mitsubishi Magna must have been involved in an 'incident' (s 59(1)).
(b)The 'incident' must have been an incident 'occasioning the death' of one or more of Mr Helwig, Mr Sharpe and Mr Rose (s 59(1)).
(c)Ms Olive's Mitsubishi Magna will have been involved in an 'incident occasioning the death' of one or more of Mr Helwig, Mr Sharpe and Mr Rose if the death or deaths were occasioned through Ms Olive's vehicle causing an impact between Mr Helwig's Hyundai and Mr Rose's Holden Commodore (s 59B(2)(a)).
(d)At the time of the 'incident' Ms Olive must have been driving her Mitsubishi Magna in a manner (which expression includes speed) that was, having regard to all the circumstances of the case, dangerous to the public or any person (s 59(1)(b)).
(e)It is immaterial that the death of one or more of Mr Helwig, Mr Sharpe and Mr Rose might have been avoided by proper precaution on the part of a person other than Ms Olive (s 59(2)(b)).
(f)It is a defence for Ms Olive to prove that the death or deaths occasioned by the incident '[were] not in any way attributable' to the manner (which expression includes speed) in which her vehicle was driven (s 59B(6)(b)).

Appeal against conviction: the relevant witnesses at the trial

The witnesses who gave evidence at the trial included:
(a)Brayden Sims, who was a passenger in a Commodore being driven by Jordan Lee on the Great Northern Highway on the night in question. Mr Lee's Commodore was travelling south, a short distance behind Mr Helwig's Hyundai;
(b)Jordan Lee, the driver of the Commodore in which Mr Sims was a passenger;
(c)Douglas Bridges, who was driving a vehicle in a southerly direction on the Great Northern Highway on the night in question, a short distance behind Mr Lee's Commodore;
(d)Senior Constable Darren Harston, a mechanical fitter serving in the Vehicle Investigation Unit of the Western Australian Police;
(e)Senior Constable Stuart Bird, a police officer serving in the Major Crash Investigation Section;
(f)Ms Olive; and
(g)Mr Roberts.
Unfortunately, the evidence at the trial of Mr Bridges, Mr Lee, Senior Constable Bird and Ms Olive was not recorded and, in consequence, no transcript of their evidence at the trial is available.
Counsel for Ms Olive provided the court and the State with a summary of the evidence of these (and the other) witnesses, as required by Consolidated Practice Direction 7.4. Counsel for the State accepted the accuracy of this summary (appeal ts 22).
Also, after hearing submissions from counsel at the hearing of the appeal, this court made an order under s 40(1)(h) of the Criminal Appeals Act 2004 (WA) requiring the magistrate to supply a copy of his notes of the evidence of Mr Bridges, Mr Lee, Senior Constable Bird and Ms Olive. His Honour made available these notes.

Appeal against conviction: the magistrate's reasons

The magistrate concluded that the manner of Ms Olive's driving was dangerous and that she was, at the material time, involved in an incident that occasioned the deaths of Mr Helwig, Mr Sharpe and Mr Rose.

His Honour made, relevantly, these findings of fact:
(a)The point of impact between the Hyundai and the Holden Commodore was 'within 80 metres [after] the end of the merging lanes' (8/10/09: ts 2).
(b)When travelling south, the two southbound lanes merge after a 'form one lane' sign, which is about 100 m before the end of the 'merging point' (8/10/09: ts 2).
(c)Mr Helwig initially lost control of the Hyundai 'at a location where the two laned section of the southbound lanes end at a location approximately 20 metres [after] the end of the two lane markings' (8/10/09: ts 2).
(d)There were tyre markings consistent with Mr Helwig's Hyundai 'beginning to rotate clockwise around its centre of gravity and travel across the carriageway to a point where it was sideways across the northbound lane with its left side leading' (8/10/09: ts 2 ‑ 3).
(e)Mr Rose's Holden Commodore travelled north in the northbound lane and struck the Hyundai in its left side, in the area of the front wheel and engine bay (8/10/09: ts 3).
(f)Before the collision, Ms Olive's vehicle had overtaken Mr Helwig's Hyundai (8/10/09: ts 3).
(g)There was no evidence, and it was not put by the prosecution, that Mr Helwig's Hyundai and Ms Olive's Mitsubishi Magna came into contact at any point (8/10/09: ts 3).
(h)After reviewing the evidence of numerous witnesses, his Honour found that the evidence of Mr Bridges, Mr Lee and Mr Sims was clear and credible (8/10/09: ts 9).
(i)His Honour said in relation to Mr Bridges' evidence:
What he does say is the [Hyundai] coupe and the Commodore [driven by Mr Lee and following the Hyundai] were approximately 100 metres apart shortly prior to the collision which is consistent with [Sims]. He confirms the two vehicles were doing 100 kilometres per hour as stated by Lee and even the accused. What Bridges does say [is] that he was driving a dual cab, certainly not a landcruiser, and that the accused had passed him several kilometres prior to the overtaking section. He gives evidence of no other vehicles between him and the [Hyundai] coupe prior to the collision other than those three vehicles in question.
He also gives credible evidence, if further evidence is required, that the accused's vehicle passed him on an estimated speed of 130 kilometres an hour. In my view the witnesses Lee and [Sims] were likewise credible. I accept these are young men who have now witnessed events that no doubt are traumatic and some time has passed. Having said that, arising from that there will be variations but there is also consistency. Both confirm the [Hyundai] coupe and [the] Commodore [following the Hyundai] were in convoy doing 100 kilometres per hour (8/10/09: ts 10). (emphasis added)
(j)His Honour said in relation to Mr Lee's evidence concerning the distance between the Hyundai and the Commodore, being driven by Mr Lee, which was following the Hyundai:
Lee, the driver of the Commodore, says they were 200, 300 metres apart, [Sims] 80 to 100 metres. As I said, Bridges saw them 100 metres apart and I've no reason to conclude this varied greatly as I find the vehicles were in the vicinity of 100 metres apart, even if a little more but not of significance. Lee gives evidence observing the end of the dual lanes ahead. I am mindful it is night-time. There's no street lighting with vehicles travelling at speed. (emphasis added)
Whilst I accept Mr Lee is a witness of truth I consider his estimates of distance between the vehicles may be not reliable (8/10/09: ts 10).
(k)His Honour said in relation to Ms Olive's Mitsubishi Magna overtaking Mr Helwig's Hyundai:
What [Mr Lee] does say, however, of significance is the accused's vehicle overtook Mr Helwig's vehicle right on the end of the overtaking lane. At this point Mr Helwig's vehicle veered. [Sims] puts the accused's vehicle at 120 kilometres per hour as it passed. Ordinarily given his age I might have cause for concern as to his judgment and experience estimating speed but this is consistent with the [accused's] and Mr Roberts' evidence.
His observation was that the accused's vehicle appeared to be attempting to beat the [Hyundai] coupe into the single lane. In fact, in cross-examination he said as the lanes merged the accused's vehicle got in front. The evidence in the form of the plan of the road - the road markings and position of cars following the collision - leads me to conclude this is consistent with the evidence of those two witnesses in that the first tyre markings appear 20 metres from the commencement of the merge point, those markings visible to the left of the fog line and is indicative that the [Hyundai] coupe had commenced to veer left around the merge point, bearing in mind that at around 100 kilometres per hour the [Hyundai] coupe had travelled approximately 28 metres in a second.
I find that irrespective of the facts [sic] the two vehicles were in extremely close proximity when the lanes merged with the accused's vehicle just in front (8/10/09: ts 10 ‑ 11). (emphasis added)
(l)Ms Olive was travelling in the vicinity of 130 km per hour when overtaking the Hyundai (8/10/09: ts 11).
(m)Mr Roberts' evidence in relevant respects was 'not plausible' (8/10/09: ts 11).
(n)Ms Olive was not a reliable witness as to time and distance (8/10/09: ts 12).
(o)His Honour rejected the evidence of Ms Olive and Mr Roberts on crucial matters relating to causation (8/10/09: ts 12).
(p)When the Mitsubishi Magna and the Hyundai were 'within seconds of the merge point', they were in 'close proximity, so much so that a danger was created of contact between them, a matter [of which] the accused and Mr Roberts were aware' (8/10/09: ts 12).
(q)Ms Olive did not pass the Hyundai 100 m to 200 m before the merge point 'and … a significant gap had not occurred' (8/10/09: ts 12).
(r)Ms Olive accelerated into the dual lanes and passed Mr Lee's Commodore and then caught up to the Hyundai at a point where the dual lanes commenced to merge (8/10/09: ts 12).
(s)His Honour then said:
I find that given the circumstances of no lighting and the speed of the accused's vehicle and the location she chose to effect the overtaking that this created a danger to other road users. I find that by reason of this dangerous manner of driving the driver of the [Hyundai] coupe veered to avoid possible contact and thereby lost control and collided with Mr Rose's vehicle resulting in three deaths (8/10/09: ts 12).
On the basis of these findings, the magistrate was satisfied that each of the charges against Ms Olive had been proven beyond reasonable doubt.

Appeal against conviction: the ground of appeal

The sole ground of appeal, as amended, reads:
The verdicts of guilty should be set aside in relation to each of the offences charged pursuant to section 59(1)(b) of the Road Traffic Act 1974 as the convictions were unreasonable and the totality of the evidence was incapable of supporting the findings, beyond reasonable doubt, that it was the appellant's vehicle that caused an impact between the other vehicles that occasioned the deaths of Mr Christopher Helwig, Mr Dylan Geordie Sharpe and Mr David William Rose.
Leave to appeal has been granted.

Appeal against conviction: the ground of appeal: applicable legal principles

The appeal against conviction is governed by pt 2 of the Criminal Appeals Act. The appeal is before this court as a result of an order made under s 13(2) of that Act that the appeal be dealt with by this court instead of a judge of the General Division of the Supreme Court. No doubt, the order was made to enable the appeals against conviction and sentence to be dealt with together.
In M v The Queen [1994] HCA 63; (1994) 181 CLR 487, Mason CJ, Deane, Dawson and Toohey JJ said:
Where a court of criminal appeal sets aside a verdict on the ground that it is unreasonable or cannot be supported having regard to the evidence, it frequently does so expressing its conclusion in terms of a verdict which is unsafe or unsatisfactory (492).
See also Jones v The Queen [1997] HCA 12; (1997) 191 CLR 439, 450.
In M, McHugh J held that a 'miscarriage of justice' arises whenever the accused has not had a fair trial according to law or whenever the nature of the evidence or the procedures that were followed raise a real doubt as to whether the conviction can be regarded as a safe or just conviction (523). In Jones, Gaudron, McHugh and Gummow JJ said that, having regard to the statements in M, there can be no doubt that a 'miscarriage of justice' also occurs when the findings or verdicts of the tribunal of fact raise a real doubt as to whether a conviction is safe or just (450).
In M, Mason CJ, Deane, Dawson and Toohey JJ held that the test for an unsafe or unsatisfactory verdict was whether the court thought that upon the whole of the evidence it was open to the tribunal of fact to be satisfied beyond reasonable doubt that the accused was guilty (493).
In answering that question, their Honours said:
[T]he court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations (493).
Their Honours explained the application of the test:
In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty (494 ‑ 495). (footnotes omitted)
See also Jones, 450 ‑ 451. The test formulated by the majority in M is the appropriate test for determining whether a verdict is unsafe or unsatisfactory: Jones, 452; MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606 [25].
In Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559, Hayne J (with whom Gleeson CJ & Heydon J relevantly agreed) said that where it is alleged that a conviction is unsafe or unsatisfactory, the question for an appellate court is:
[W]hether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant's guilt (M v The Queen (1994) 181 CLR 487 at 492 ‑ 493). It is not sufficient to show that there was material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard. In the present case, the critical question for the jury was what assessment they made of the whole of the evidence that the complainant and the appellant gave that was relevant to the issue of consent to the digital penetration that had occurred in the park. That evidence did not require the conclusion that the jury should necessarily have entertained a doubt about the appellant's guilt [113]. (original emphasis)
See also Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300 [41] (Gleeson CJ, Gummow, Kirby, Hayne, Callinan & Heydon JJ).
The comments in M and Libke about a jury apply by analogy to a criminal trial before a judge sitting alone without a jury or before a magistrate.

Appeal against conviction: the ground of appeal: the magistrate's advantage

This court, in evaluating Ms Olive's ground of appeal, must necessarily observe the 'natural limitations' that exist where an appellate court proceeds wholly or substantially on the record. See Dearman v Dearman [1908] HCA 84; (1908) 7 CLR 549, 561; Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 [23]. In Dearman, Isaacs J said:
The mere words used by the witnesses when they appear in cold type may have a very different meaning and effect from that which they have when spoken in the witness box. A look, a gesture, a tone or emphasis, a hesitation or an undue or unusual alacrity in giving evidence, will often lead a Judge to find a signification in words actually used by a witness that cannot be attributed to them as they appear in the mere reproduction in type. And therefore some of the material, and it may be, according to the nature of the particular case, some of the most important material, unrecorded material but yet most valuable in helping the judge very materially in coming to his decision, is utterly beyond the reach of the Court of Appeal (561).
In Fox v Percy, Gleeson CJ, Gummow & Kirby JJ said in relation to the 'natural limitations' of an appellate court proceeding wholly or substantially on the record:
These limitations include the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses' credibility and of the 'feeling' of a case which an appellate court, reading the transcript, cannot always fully share. Furthermore, the appellate court does not typically get taken to, or read, all of the evidence taken at the trial. Commonly, the trial judge therefore has advantages that derive from the obligation at trial to receive and consider the entirety of the evidence and the opportunity, normally over a longer interval, to reflect upon that evidence and to draw conclusions from it, viewed as a whole [23] (footnotes omitted).

Appeal against conviction: Ms Olive's submissions

Counsel for Ms Olive said that the causal connection between Ms Olive's dangerous driving, on the one hand, and the 'incident' occasioning the deaths, on the other, need not be the only contributing factor to the deaths. He submitted that the dangerous driving must, however, have been 'a significant or substantial factor'. Counsel referred to these observations of Burt CJ (Jones & Smith JJ agreeing) in Campbell v The Queen [1981] WAR 286:
It must be clear beyond argument that a person cannot be convicted of the offence created by s 59(1) of the Road Traffic Act unless the jury find and find beyond reasonable doubt that he caused the death of another person by driving a motor vehicle in a manner that was, having regard to all the circumstances, dangerous to the public. One needs no authority for that; it is in terms, when the charge is causing death, what the sub‑section says and it is not displaced by s 59(2)(b) which provides that for the purposes of the section 'it is immaterial that the death … might have been avoided by proper precaution on the part of a person other than the person charged' (emphasis added).
What, if anything, should be said in an attempt to explain causation is another matter. In England it has been said to be permissible to tell the jury that the dangerous driving if found must be a 'substantial' cause of death, that word being 'a convenient word to use to indicate to the jury that it must be something more than de minimus, and also to avoid possibly having to go into details of legal causation, remoteness and the like'. See R v Hennigan [1971] 3 All ER 133 at 135 per Lord Parker CJ. See, too, R v Mayne (1975) 11 SASR 583 at 589, per Bray CJ. The particular submission made by the appellant's counsel to the trial judge was based upon those authorities. Whether in this context it be permissible or helpful to introduce the word 'substantial' in a direction to the jury upon causation is a question upon which I would prefer at present to express no opinion. It would seem to me to be enough if juries were told that the question of cause for them to decide is not a philosophical or a scientific question, but a question to be determined by them applying their common sense to the facts as they find them they appreciating that the purpose of the enquiry is to attribute legal responsibility in a criminal matter. See the discussion of the meaning to be given to the word 'cause' by Windeyer J in National Insurance Co of NZ Ltd v Espagne (1960) 105 CLR 569 at 591 and following (289 ‑ 290).
According to counsel for Ms Olive, there was insufficient evidence to conclude that the manner of her driving and the three deaths were causally connected. In particular, counsel submitted that no tribunal of fact could find, beyond reasonable doubt (without speculating), that Ms Olive's dangerous manner of driving, as found by the magistrate:
(a)substantially caused Mr Helwig to veer to the left to avoid possible contact with Ms Olive's vehicle;
(b)Mr Helwig thereby lost control of his vehicle, causing his vehicle then to travel to the other, incorrect, side of the road; and
(c)as a result, Mr Helwig's vehicle collided with Mr Rose's vehicle, resulting in the three deaths.

Appeal against conviction: its merits

Ms Olive does not challenge the magistrate's finding that the manner of her driving at the relevant time was dangerous.
Rather, Ms Olive challenges his Honour's finding that there was a causal connection between the movement or behaviour of her Mitsubishi Magna, on the one hand, and the 'incident' occasioning the deaths of Mr Helwig, Mr Sharpe and Mr Rose, on the other.
The statutory provisions considered by Burt CJ in Campbell were materially different from those that apply in the present case.
Section 59(1) of the Road Traffic Act, as in force when Campbell was decided, provided, relevantly:
A person who causes the death of … another person by driving a motor vehicle in a manner (which expression includes speed) that is, having regard to all the circumstances of the case, dangerous to the public or to any person commits an indictable offence …
By this provision, the accused person must have 'caused' the death of another person by, in essence, the accused person's dangerous driving of a motor vehicle.
By contrast, the causal element which is relevant in the present case is that prescribed by s 59B(2)(a), namely, whether Ms Olive's Mitsubishi Magna caused the impact between the Hyundai and the Holden Commodore. See my analysis at [27] ‑ [28] above. Unlike in Campbell, the causal element is not whether the accused person, Ms Olive, caused the three deaths by, in essence, her dangerous driving.
The expert crash investigators who were called by the prosecution at the trial were unable to form any conclusions as to the cause of the collision. It must be emphasised, however, that their investigations were confined to an assessment of the physical evidence at the scene of the accident including the condition of the Hyundai and the Holden Commodore.
Senior Constable Harston was able to exclude vehicle defect as a cause or contributor to the collision. He gave this evidence:
Did you find any defects in the Hyundai coupe?---The only defect I recall finding was the outer tread surface of the front, left tyre, I believe it was, was worn below the legal requirements of 1.5 millimetres of tread depth.
Could the defect that you've just described in the Hyundai coupe have caused or contributed to a collision between that vehicle and the Holden Commodore?---No (7/9/09: ts 12).

Senior Constable Bird's vehicle crash report was received in evidence as exhibit D. In his report, Senior Constable Bird said:
The physical evidence at the scene indicates that the Hyundai driver [Mr Helwig] has initially lost control of the vehicle at the end of the two lane section of the south bound lane. At this point the left tyres of the vehicle had already crossed over the left fog line [10.2].
A little later in his report, Senior Constable Bird said that '[t]here was no physical evidence available at the scene which can explain this initial loss of control [12.3]'.
It is necessary, against this background of the expert evidence, to analyse the evidence of the witnesses who saw the Hyundai and the Mitsubishi Magna when or immediately before the collision occurred.
The evidence showed that Mr Helwig had been driving in an appropriate and unexceptional manner before Ms Olive overtook him. Mr Lee and Mr Sims gave evidence that they were in a Commodore vehicle being driven by Mr Lee. Their vehicle was behind Mr Helwig's Hyundai. The Commodore and the Hyundai were travelling in unison at the speed limit. Their evidence was supported by Mr Bridges who was driving a vehicle behind Mr Lee's Commodore.
Mr Lee's evidence, as set out in the summary prepared by counsel for Ms Olive and accepted as accurate by counsel for the State, was, relevantly, this:
-He saw the Magna advance on the Hyundai and drive past him.
-The Hyundai was right at the end of the overtaking lane when the Magna overtook him. Both the Hyundai and the Magna were 'pretty much on it' when the Magna overtook the Hyundai.
-He saw the Magna and Hyundai level; saw the Hyundai move out to the left 'like it had been clipped'.
-The Hyundai then came back into the centre of the road.
-It came in too fast.
-All he could see was black.
-He did not see the collision between the Hyundai and the oncoming car (Mr Rose's Commodore).'
Before this court, counsel for the State submitted (appeal ts 22 ‑ 23), and counsel for Ms Olive did not dispute, that Mr Lee's reference to the Hyundai and the Mitsubishi Magna being 'pretty much on it' when the Mitsubishi Magna overtook the Hyundai was a reference to the end of the 'broken lines' on the road. This submission may be accepted. It follows that Ms Olive commenced her overtaking manoeuvre a very short distance before the end of the broken lines. Ms Olive's vehicle, at a speed of 130 km per hour, was travelling about 36 m per second. Mr Helwig's vehicle, at a speed of 100 km per hour, was travelling about 27.8 m per second. Ms Olive's vehicle was therefore closing on and passing Mr Helwig's vehicle at the rate of about 8.2 m per second.
The 'form one lane' sign, which informs motorists, in essence, that the lanes are about to merge, was about 100 m before the end of the broken lines (8/10/09: ts 2). Mr Helwig initially lost control of his vehicle about 20 m after the end of the broken lines (8/10/09: ts 2). Ms Olive would have travelled that distance of about 20 m in about 0.6 of a second. The Hyundai collided with the Holden Commodore about 80 m after the end of the broken lines (8/10/09: ts 2). The end of the broken lines is referred to in some parts of the magistrate's reasons as the 'end of the merging lanes' or the 'merging point'. The width of the southbound lanes at the end of the broken lines is about 7.2 m. The width of the southbound lanes at the point where Mr Helwig initially lost control of his vehicle is about 6.5 m. See the reconstruction plan of the scene of the accident (exhibit G) and the explanation of counsel for Ms Olive (which was not disputed by counsel for the State) as to the width of the southbound lanes at these points (appeal ts 4).
The evidence of Mr Lee, which I have set out at [60] above, is corroborated in relevant respects by Mr Sims. In his evidence, Mr Sims said:
Did the Magna close the distance between itself and Christopher Helwig's Hyundai?---It sure did.
From where you were on the road could you see the end of the overtaking section of the road up ahead of you?---No, we couldn't - I couldn't see where it merged across.
Did the Magna overtake the Hyundai?---Yes, it did. It like as ‑ it was pretty much it looked they were - as in the Magna tried getting across to beat him to the merging lane. So, as it was merging into one.
What did you see that led you to that conclusion?---The way the car ‑ say this is the Magna and that's the car, the way it come in the two lanes. This is us had dropped out. It went past us. It comes around the corner. As it come around the corner it went like that and then just kept on going, as in the car, Chris' car swerved this way and then back that way to the ongoing traffic.
Now, you've described, using your hands a moment ago the direction in which Chris' car swerved?---Yeah.
Can you tell his Honour which direction you're referring to? Which direction did you see the Hyundai swerve?---As in to where his outside lane was. So, he went to - say because the field, like, the paddock and that ‑ so, to the paddock and then back to the ongoing traffic.
In terms of right and left are you able to describe that?---Yeah. It would be left to right.
All right. So it went left?---Yeah.
Then did it go in another direction?---So ‑ yes. It went left and then it went back this way.
Are you able to say how quickly this happened from the time when the Magna passed the Hyundai?---Really quick (7/9/09: ts 5).
It is apparent from this passage that Mr Sims was describing some movement or change in direction by Ms Olive's Mitsubishi Magna from right to left near the point where it passed the Hyundai. The magistrate had an advantage over this court in evaluating Mr Sims' evidence in this respect because the transcript indicates that the witness was gesturing with his hands. His description of what occurred was both verbal and non‑verbal.
In my opinion, the evidence of Mr Lee in combination with the evidence of Mr Sims (in particular, the evidence to which I have referred at [60] above and [63] above respectively) establishes that the Mitsubishi Magna was in very close proximity to the Hyundai when Ms Olive passed Mr Helwig at about the point where the southbound lanes were merging. Mr Sims gave evidence to the effect that it appeared the Mitsubishi Magna was attempting 'to beat [the Hyundai] to the merging lane … as it was merging into one'. The Mitsubishi Magna, in the course of this manoeuvre, moved from right to left. This movement is consistent with the natural direction that a vehicle would take if it was following the centre line as the width of the road diminished from about 7.2 m to about 6.5 m.
Further, in my opinion, the evidence of Mr Lee in combination with the evidence of Mr Sims establishes that the Mitsubishi Magna passed the Hyundai at a speed of about 130 km per hour and in such very close proximity as to create in Mr Helwig a reasonable apprehension of danger (namely, the reasonable possibility of physical contact between the vehicles) and a reasonable response by Mr Helwig to that reasonable apprehension (namely, veering to the left to avoid possible contact). I refer, in particular, to Mr Lee's evidence that he saw 'the Magna and Hyundai level' and that he saw 'the Hyundai move out to the left "like it had been clipped"'; and to Mr Sims' evidence that the Hyundai 'went left'.
As I have mentioned, the magistrate found that the evidence of Mr Lee and Mr Sims was clear and credible (8/10/09: ts 9). Also, as I have mentioned, his Honour rejected the evidence of Ms Olive and Mr Roberts on crucial matters relating to causation (8/10/09: ts 12). His Honour was entitled to make these findings.
I am satisfied that there was a sufficient foundation in the evidence for the magistrate's findings, in effect, that:
(a)the movement or behaviour of the Mitsubishi Magna caused Mr Helwig to veer to the left to avoid possible physical contact with Ms Olive's vehicle;
(b)there was an 'incident' occasioning the death of each of Mr Helwig, Mr Sharpe and Mr Rose, namely, Mr Helwig losing control of his vehicle and, as a result, his vehicle veering into the northbound lane and colliding with Mr Rose's vehicle, occasioning the three deaths;
(c)the Mitsubishi Magna was involved in this incident in that the deaths were occasioned through that vehicle causing an impact between the Hyundai and the Holden Commodore; and
(d)at the time of the incident, Ms Olive was driving her vehicle in a manner that was, having regard to all the circumstances of the case, dangerous to other road users.
It was open to the magistrate to be satisfied of Ms Olive's guilt beyond reasonable doubt. The convictions were not unreasonable. The ground of appeal fails.

Appeal against sentence: the ground of appeal

The State relies on one ground of appeal which alleges that the sentencing judge erred in law by ordering that the sentences for each offence of dangerous driving occasioning death should be served wholly concurrently.

Appeal against sentence: general

The critical issue in relation to the ground of appeal is whether the total effective sentence of 18 months' imprisonment infringes the first limb of the totality principle in that it does not bear a proper relationship to the overall criminality involved in the offences, viewed in their entirety, and having regard to all of the circumstances of the case, including those referable to Ms Olive personally.
The State relies on implied error. It does not suggest that the sentencing judge's approach was vitiated by an express error. This court must determine whether error should be inferred from the sentencing outcome itself.

Appeal against sentence: the maximum penalty

As I have mentioned, at the material time (that is, 7 March 2008) the maximum penalty for each offence was 4 years' imprisonment or a fine of 400 penalty units.

Appeal against sentence: customary standards of sentencing

There is no tariff for offences of this kind 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 [2009] WASCA 110 [7] (Wheeler JA). The sentence to be imposed in a particular case depends on its individual facts and circumstances, after having regard to the maximum penalty. It is important, however, in deciding whether a particular sentence is manifestly inadequate or infringes the totality principle, to appreciate what sentences are customarily imposed in cases involving similar offending, for the purpose of avoiding the risk of sentencing becoming idiosyncratic and arbitrary.
In Eves v The State of Western Australia [2008] WASCA 7; (2008) 49 MVR 259, the offender was convicted, after a trial, on three counts of dangerous driving causing death, contrary to s 59(1)(b) of the Road Traffic Act. The maximum penalty for each offence was, relevantly, 4 years' imprisonment. He was sentenced to 1 year and 8 months' imprisonment on each count. The sentences were ordered to be served cumulatively. The total effective sentence was therefore 5 years' imprisonment. A parole eligibility order was made. The salient facts were these.
The offender had been driving a Toyota Landcruiser utility, attached to which was a large trailer. He was driving north on the Old Coast Road near Lake Clifton and was returning to Perth from Bunbury. As the offender travelled north on the Old Coast Road, he was observed by others to swerve from side to side. The driver of a following vehicle (a van) endeavoured to attract the offender's attention so as to get him to pull over. He was unsuccessful. The driver of the van then slowed his vehicle so that he was about 90 m behind the offender. The offender continued to drive erratically. His trailer moved to a point 1 m over the midline of the road. An oncoming Sigma sedan struck the trailer. This caused the Sigma to rotate onto the wrong side of the road and hit the van. The Sigma exploded into flames. Both of its occupants were killed. The driver of the van was also killed. A passenger in the van was injured. The offender, who was aged 29 years, had driven erratically because he was tired and unwell. Although he had been convicted of previous motor vehicle offences, he did not have any convictions since the age of 21.
This court (Steytler P & McLure JA, Miller JA dissenting) allowed the offender's appeal against sentence. The majority considered that the individual sentences were appropriate but that the orders for cumulation should be set aside and, in lieu thereof, orders for partial cumulation should be made. The majority ordered that the sentence on count 2 commence 10 months after the commencement of the sentence on count 1, and that the sentence on count 3 commence 10 months after the commencement of the sentence on count 2. The total effective sentence was therefore 3 years and 4 months' imprisonment. The offender remained eligible for parole. The majority varied the sentencing outcome in order to avoid multiple punishments for the common element of each offence (being the same episode of dangerous driving) and to give proper effect to the totality principle.
In Taylor v The State of Western Australia [2009] WASCA 226, the offender was convicted, after a trial, on one count of dangerous driving causing grievous bodily harm and one count of dangerous driving causing death. The maximum penalty for each offence was, relevantly, 4 years' imprisonment. He was sentenced to 14 months' imprisonment on count 1 and 26 months' imprisonment on count 2. The sentences were ordered to be served concurrently. The total effective sentence was therefore 2 years and 2 months' imprisonment. The material facts and circumstances of the offending were as follows.
The offender had driven from Kalgoorlie to Perth with friends, to spend a week in Perth and celebrate a friend's birthday. On 28 July 2007, the offender and his friends went to a house in Rockingham. At that time the offender was aged about 18 years and 6 months. He was the designated driver and, as a result, he did not consume any alcohol that evening. A little after midnight, the offender was driving a motor vehicle with some of his friends as passengers, including the deceased. The vehicle he was driving was not his own and, apparently unknown to him, had four bald tyres. At or near a set of traffic lights on Mandurah Road, a Holden Commodore driven by an adult male (Mr Archer) stopped to the left of the offender's vehicle. Mr Archer revved his engine in what the sentencing judge accepted was an invitation to a drag race. The offender accepted this invitation. The area was dark, it had been raining lightly and the road was wet. During the drag race, the offender reached a speed of about 120 km per hour. He then slowed to about 90 km per hour. The applicable speed limit was 80 km per hour. The race lasted a very brief period of time. The whole event occupied no more than about 90 seconds. The crucial events which resulted in the occurrence of the death and the grievous bodily harm were summarised by Wheeler JA (McLure P & Owen JA agreeing):
It appears that the two vehicles may have touched briefly, probably as a result of Mr Archer moving around a vehicle pulled up on the roadside. Both drivers lost control of their vehicles and left the road. They were slowed by vegetation before coming to a stop. When the appellant's vehicle came to a stop, it was immediately apparent that Chloe Schoppe was not in the vehicle. She had not been wearing a seat belt and was thrown from the vehicle. She died at the scene of the accident as a result of head injuries. She was 16 years of age. It is clear from the victim impact statement of her father that, as one would expect, the effect of her death has been devastating.
Mr Archer sustained life-threatening injuries and remained in intensive care until 6 August 2007. He suffered serious spinal injuries and also underwent a craniotomy [7] ‑ [8].
This court allowed the offender's appeal against sentence. The sentence originally imposed in respect of count 2 was quashed and a sentence of 1 year and 8 months' imprisonment substituted. There was no challenge to the sentence on count 1. The terms of imprisonment on count 1 and count 2 were ordered to be served concurrently. In the result, the total effective sentence substituted by this court was 1 year and 8 months' imprisonment. The offender remained eligible for parole. Wheeler JA said:
There were, as the learned sentencing judge noted, a number of serious aspects of the case. They included the accepting of Mr Archer's invitation to race, coupled with the fact that the appellant knew, or should have known, that he was a relatively inexperienced driver, the fact that the road was wet, and the fact that he had accepted responsibility for the passengers in his vehicle. However, there were a number of features of the appellant's conduct which suggested that his behaviour was not at the higher end of culpability. He was sober, and there was no suggestion that, prior to the decision to race, his driving had been other than appropriate. Although he was speeding at the time of the accident, he was in excess of the speed limit by something of the order of 10 km per hour; this is not, compared to the many very serious speeding cases which result in death, an example of extreme speed. The period of bad driving, although deliberate, was extremely brief. Other than his speed, there was apparently no other feature of the appellant's driving which was dangerous.
So far as the appellant's personal circumstances were concerned, it is true that he had not entered a plea of guilty, and therefore was not entitled to any discount on account of his plea. However, the learned sentencing judge, who had the advantage of being the trial judge, accepted that the appellant was deeply ashamed of his behaviour and remorseful. At the time of the offence, he was only 18 years of age, and was 20 at the time of sentencing. It is a serious matter to send a young person to gaol for the first time. He had one prior driving offence, involving alcohol, as a child, but otherwise had no record. He had a number of very favourable references. He had completed a programme in the prison and had played a role in the prison, assisting others, while in custody awaiting sentence.
Having regard to other cases of dangerous driving, the driving in this case cannot be characterised as being of the most serious kind, or even towards the upper end of the range of possible dangerous driving. When that fact is coupled with the personal circumstances of the appellant, I am satisfied that the sentence imposed was manifestly excessive.
The maximum penalty available for the offence of dangerous driving causing death was 4 years' imprisonment. Penalties significantly less than 26 months were accepted as appropriate in Eves v The State of Western Australia [2008] WASCA 7 (29-year-old offender, after trial, no deliberate decision to drive dangerously, but lengthy period of driving when too tired) and Wood v The Queen [2002] WASCA 95 (24-year-old offender, also convicted at trial, also driving while tired) [14] ‑ [17].
In Longbottom v The State of Western Australia [2008] WASCA 203; (2008) 38 WAR 396, Steytler P considered the application of the totality principle in the case of an offender who was convicted, after a trial, of two counts of dangerous driving causing death. The maximum penalty for each offence was, relevantly, 4 years' imprisonment. After drinking alcohol, and notwithstanding that his driver's licence had been disqualified, the offender drove his vehicle, with three passengers in it, at a speed that was excessive in the circumstances. Despite one of his passengers asking him, twice, to slow down, he did not do so. He lost control of the vehicle and there was an accident. Two of his passengers died. The offender's blood alcohol level at the time of the accident was 0.089%. The sentencing judge imposed a term of immediate imprisonment of 1 year and 8 months in respect of each count and ordered that the sentences be served cumulatively. The total effective sentence was therefore 3 years and 4 months' imprisonment.

The offender appealed on the ground that the order for total accumulation was an error because it necessarily had the result that he was punished twice for the commission of common elements of each offence (the dangerous driving arising out of the appellant having driven at an excessive speed and with a blood alcohol level in excess of the statutory limit). This court (Steytler P, Wheeler & Miller JJA) unanimously dismissed the appeal.
Steytler P said that there is no inflexible rule which requires an order for partial concurrency in a case of the kind before the court. Also, his Honour said that there was nothing in either of the majority judgments in Eves that suggested otherwise [9]. A little later, Steytler P said:
Although the sentencing judge in the present case did not say (as, with respect, it would have been preferable for him to do) that he had reduced each sentence in order to take into account elements that were common to both offences, it seems to me that that is what he did. It is difficult, otherwise, to understand why the individual sentences should have been as low as they were. Notwithstanding the youth of the appellant, his offers to plead guilty to the offences of which he was convicted, his remorse and the other matters raised in mitigation, each offence called for a penalty closer to the maximum of 2 years and 8 months' imprisonment then provided by s 59 of the Road Traffic Act 1974 (WA), after allowing for the operation of the transitional provisions enacted by the Sentencing Legislation Amendment and Repeal Act 2003 (WA). As I have said, the appellant was driving with a blood/alcohol level well over the prescribed limit (having previously had his licence disqualified for just such an offence) and at an excessive speed notwithstanding that he had twice been asked to slow down [10].
Longbottom is authority for the proposition, relevantly, that a sentencing judge will not necessarily make an error, in the application of the totality principle or otherwise, by ordering that individual sentences for multiple counts of dangerous driving occasioning death, which arise out of one transaction or continuing episode, be served wholly cumulatively.

Appeal against sentence: matters personal to Ms Olive

When the collision occurred Ms Olive was aged 22 years.
She had a number of prior traffic convictions and the sentencing judge noted, correctly, that there was no mitigation to be found in her record (4/03/2010: ts 4). Her driver's licence had been suspended twice as a result of accumulated demerit points. On the night in question, she was driving without a licence.
Ms Olive was described by her Honour as 'an excellent worker'. She came from 'a very good home' and, apart from her behaviour on the roads, was of 'exemplary character' (4/03/2010: ts 4).
The sentencing judge accepted that Ms Olive had demonstrated genuine remorse and had cooperated with the police and in the trial process.
Before she was sentenced, Ms Olive was examined by Ms Jane Sampson, a clinical and forensic psychologist. In a written report dated 8 November 2009, Ms Sampson set out her conclusions, as follows:
•Ms Olive reported a stable and supportive family background with no traumatic experiences evident.
•She was diagnosed with dyslexia as a 7 year old and required special education with her language skills.
•Her offending behaviour is driven by impulsivity, poor judgement, and an apparent inability to learn from previous mistakes. It is noted that impulsivity has been linked with dyslexia in the literature.
•Treatment recommendations are limited to supportive counselling as required and a program to assist her with consequential thinking skills.

Appeal against sentence: its merits

The State does not challenge the individual sentences of 18 months' immediate imprisonment on each count. Its challenge is confined to an allegation of implied error arising from her Honour's decision to order that the individual terms of imprisonment be served concurrently.
Ms Olive's dangerous driving caused tragic consequences. It resulted in the death of Mr Helwig, who was aged 19 years, and Mr Sharpe, who was only 16. Also, it caused the death of Mr Rose. The grief suffered by their families and friends would have been devastating and is, no doubt, ongoing.
The critical feature of Ms Olive's driving on the night in question, as found by the magistrate, was that she chose to overtake Mr Helwig's vehicle in circumstances which caused Mr Helwig to veer to the left to avoid possible physical contact with her vehicle. Although Ms Olive's driving was properly characterised by the magistrate as dangerous, the result (namely, the deaths of three people) was, as the sentencing judge noted, completely disproportionate to the danger she had created (4/03/2010: ts 3 ‑ 4). The risk of that shocking outcome resulting from her dangerous driving was low, and the duration of her dangerous driving was short. Her excessive speed did not, of itself, occasion the incident in question. These are relevant factors in evaluating Ms Olive's culpability.
In Eves, the duration of the offender's dangerous driving was significantly more prolonged than the duration of Ms Olive's dangerous driving. In Taylor, the offender participated in a drag race but that serious circumstance was ameliorated by his having slowed his vehicle to a speed of 90 km per hour in an 80 km per hour zone shortly before the accident. In Longbottom, the offender was driving with a blood alcohol level well over the prescribed limit (having previously had his licence disqualified for this kind of offence) and at an excessive speed, notwithstanding that he had been requested twice to reduce his speed. The quality of the offending conduct in Longbottom was materially more egregious than Ms Olive's conduct.
There is no single correct sentence for an offender, and sentencing judges must be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the applicable statutory provisions.
A sentencing judge will not necessarily make an error, in the application of the totality principle or otherwise, by ordering that individual sentences for multiple counts of dangerous driving occasioning death, which arise from a single incident, be served concurrently.
Although the total effective sentence of 18 months' immediate imprisonment was lenient, I am not persuaded that this court should infer, on the basis of the sentencing outcome, that the sentencing judge misapplied the first limb of the totality principle. It is true that the deaths of three innocent people were occasioned through Ms Olive's vehicle causing an impact between the Hyundai and the Holden Commodore, and that these deaths were calamitous and avoidable. However, these factors must be assessed with the matters to which I have referred at [92] ‑ [93] above; that is, the result of Ms Olive's driving was completely disproportionate to the danger she had created, the risk which eventuated was low, and the duration of her dangerous driving was short. The total effective sentence was not plainly unreasonable or unjust. The ground of appeal has not been made out.

Appeal against sentence: conclusion

I would dismiss the State's appeal against sentence.

Appeal against sentence: Ms Olive's notice of contention

Ms Olive filed a notice of contention. In the notice she alleges that the sentencing judge erred in law in ruling that the indictable penalty under s 59(3)(b) of the Road Traffic Act, rather than the summary penalty, as at 7 March 2008, was applicable.
At the hearing of the appeal, counsel for Ms Olive said that he only wished to raise the issue in the notice of contention if the State's appeal against sentence were to be allowed (appeal ts 46 ‑ 47).
It is strictly unnecessary, in view of my conclusion that the appeal against sentence should be dismissed, to deal with the notice of contention. However, the issue was fully argued by counsel and it is a matter of some practical importance. I will therefore express my opinion on it.

Appeal against sentence: notice of contention: relevant statutory provisions

At the material time, s 59(1) created the offence of, relevantly, dangerous driving occasioning death and provided that the offence was a crime and that an offender was liable to the penalty in s 59(3). Section 59(1) then set out the 'summary conviction penalty', being, relevantly, imprisonment for 18 months or a fine of 160 penalty units.
At the material time, s 59(3) of the Road Traffic Act provided, relevantly:
A person convicted on indictment of an offence against this section is liable ‑
(a) …
(b)in any other circumstances, to imprisonment for 4 years or a fine of 400 PU,
…
Section 5 of the Interpretation Act 1984 (WA) provides that, in that Act and every other written law, 'summary conviction penalty', when used in relation to an indictable offence, has the effect provided for by s 5 of the Criminal Code.
At all material times, the offence created by s 59(1) of the Road Traffic Act was an indictable offence. See s 67(1a) of the Interpretation Act.
Section 5 of the Criminal Code sets out the meaning and effect of a 'summary conviction penalty'. It provides, relevantly:
(1)This section applies if ‑
(a)a provision of this Code, or another written law, provides a summary conviction penalty for an indictable offence; and
(b)a person (the accused) is charged before a court of summary jurisdiction (the court) with committing the indictable offence in circumstances where the summary conviction penalty applies to the offence (the charge).
…
(8)If the court convicts the accused of the offence charged (whether after a plea of guilty or otherwise), the accused is liable to the summary conviction penalty provided for the offence, unless the court commits the accused for sentence.
(9)If the court ‑
(a)convicts the accused of the offence charged after a plea of guilty or otherwise; and
(b)considers that any sentence the court could impose on the accused for the offence would not be commensurate with the seriousness of the offence,
the court may commit the accused to a court of competent jurisdiction for sentence.
(10)An accused who is committed for sentence under subsection (9) is liable to the penalty with which the offence is punishable on indictment.
Section 46 of the Criminal Procedure Act 2004 (WA) deals with the procedure to be followed by a court of summary jurisdiction on committal of an offender for sentence after conviction. It provides, relevantly:
If a court of summary jurisdiction deals with an either way charge summarily, convicts the accused (whether after a plea of guilty or otherwise) and commits the accused for sentence to a superior court with jurisdiction to deal with the charge, the court of summary jurisdiction must ‑
(a)give the superior court ‑
(i)a copy of the prosecution notice containing the charge and the information recorded under section 47(1);
(ii)a summary of the court's findings of fact and reasons for committing the accused for sentence;
(iii)any document that the court thinks is relevant to sentencing the accused for the offence;
(iv)a copy of any remand warrant for the accused; and
(v)any other document prescribed.
The expression 'either way charge' is defined in s 3(1) of the Criminal ProcedureAct to mean an indictable charge that, by virtue of s 5 of the Criminal Code, or another written law, may be tried either on indictment or summarily.
By s 47(1) of the Criminal Procedure Act:
If a court of summary jurisdiction commits an accused to a superior court for sentence or trial on an indictable charge, whether or not it has convicted the accused of the charge, the court must record on the prosecution notice ‑
(a)the accused's plea before the court;
(b)if the court convicted the accused, the fact that it did so;
(c)whether the court has ordered a pre‑sentence report in respect of the accused; and
(d)the date of the committal.
Section 83 of the Criminal Procedure Act deals with how a prosecution is commenced. By s 83(2), to commence a prosecution in a superior court against a person for an indictable offence, an indictment that alleges the offence must be lodged with the court. Section 83(5) provides:
If an accused is committed for sentence for an offence by a court of summary jurisdiction having been convicted of it by that court ‑
(a)an indictment containing the charge must not be lodged, despite subsection (2); and
(b)the prosecution notice sent to the superior court under section 46 on which is recorded the matters required by section 47(1) is to be taken to be an indictment. (emphasis added)
Section 100 of the Criminal Procedure Act applies if an accused is committed for sentence for an offence by a court of summary jurisdiction, having been convicted of it by that court: s 100(1). By s 100(2) and s 100(4):
(2)The superior court ‑
(a)must not require the accused to plead to the charge in the prosecution notice sent to the superior court under section 46; and
(b)must proceed to sentence the accused having regard to the other material sent to the superior court under section 46 and any other information the court thinks fit.
…
(4)The sentence imposed on the accused is to be taken, for all purposes, to be a sentence imposed by the superior court on indictment. (emphasis added)

Appeal against sentence: notice of contention: Ms Olive's submissions

Counsel for Ms Olive submitted that she was not convicted 'on indictment', within s 59(3) of the Road Traffic Act. She was convicted on prosecution notices MI 705 ‑ MI 707 of 2009.
Counsel accepted that s 83(5) and s 100(4) of the Criminal Procedure Act deem that the sentence imposed by a superior court on an accused, who has been convicted summarily of an indictable offence but committed for sentence to the superior court, is to be taken for all purposes to be a sentence imposed by the superior court on indictment.
However, counsel argued that s 83(5) and s 100(4) relate to events after the accused has been convicted. According to counsel, there is a clear distinction between being 'convicted on indictment' as opposed to deeming a 'sentence to be on indictment'. The superior court is, so it was submitted, confined to the summary conviction penalty.
It was submitted that as Ms Olive was not a person convicted 'on indictment', within s 59(3) of the Road Traffic Act, it was not open to the sentencing judge to impose the indictment penalty.

Appeal against sentence: notice of contention: its merits

It is well-established that where two or more statutory enactments comprise an overlapping legislative scheme, the enactments should be construed accordingly. See Sweeney v Fitzhardinge [1906] HCA 73; (1906) 4 CLR 716, 726; R v Wheeldon (1978) 33 FLR 402, 405 ‑ 406; Commissioner of Stamp Duties v Permanent Trustee Co Ltd (1987) 9 NSWLR 719, 722 ‑ 724; Le Blanc v Queensland TAB Ltd [2002] QSC 323; [2003] 2 Qd R 65 [42]; Southside Autos (1981) Pty Ltd v Commissioner of State Revenue [2008] WASCA 208; (2008) 37 WAR 245 [64]; Trajkoski v Director of Public Prosecutions (WA) [2010] WASCA 119 [50].
In Commissioner of Stamp Duties v Permanent Trustee Co Ltd, Kirby P said:
Upon the hypothesis (which is admittedly often sorely tried) that there is a rational integration of the legislation of the one Parliament, it is proper for courts to endeavour to so construe inter related statutes as to produce a sensible, efficient and just operation of them in preference to an inefficient, conflicting or unjust operation. This is the approach which I take to the task of statutory interpretation in hand (722).
Later, his Honour said in relation to the legislation under consideration in the appeal before the court:
The result is that, in construing the legislation under consideration here, I will prefer that construction which is available in the language used and which facilitates the sensible operation together of the four statutes mentioned, avoiding inefficiency and the capricious operation of revenue law which would seriously impede or discourage the availability of beneficial statutory provisions for the sale or partition of property held by co-owners. In the case of ambiguity of the legislation I consider this to be the modern approach which this Court should adopt in implementing the will of Parliament. We should presume that Parliament intended its legislation to operation rationally, efficiently and justly, together (723 ‑ 724).
In the present case, the relevant statutory provisions comprise an overlapping legislative scheme in relation to the sentencing of an offender who has been convicted of an indictable offence by a court of summary jurisdiction and then committed for sentence by that court to a superior court. The provisions must be given a coherent and sensible operation, consistent with the intention of the Parliament, as discerned by reading and construing them together as a composite set of provisions.
The effect of s 59(1) of the Road Traffic Act, the definition of 'summary conviction penalty' in s 5 of the Interpretation Act, and s 5(1) and s 5(8) of the Criminal Code, read together, is that if, as in the present case, a court of summary jurisdiction convicts an accused of an indictable offence (whether after a plea of guilty or otherwise), the accused is liable to the summary conviction penalty for the offence, 'unless the court commits the accused for sentence': s 5(8) of the Criminal Code.
The court of summary jurisdiction may commit an accused to a court of competent jurisdiction (in the present case, the District Court) for sentence if the conditions in s 5(9)(a) and s 5(9)(b) of the Criminal Code are satisfied (as they were in the present case).
If an accused is committed for sentence under s 5(9) of the Criminal Code, as in the present case, he or she is liable 'to the penalty with which the offence is punishable on indictment': s 5(10) of the Criminal Code.
The penalty with which the offence of dangerous driving occasioning death, contrary to s 59(1)(b) of the Road Traffic Act, is punishable on indictment is that set out in s 59(3)(b). At the material time, s 59(3)(b) provided, relevantly, that a person 'convicted on indictment' of an offence against s 59 was liable to imprisonment for 4 years or a fine of 400 penalty units.
By s 83(5) of the Criminal Procedure Act, if a person who has been convicted of an offence by a court of summary jurisdiction is committed for sentence to a superior court, as occurred in the present case, an indictment containing the charge must not be lodged, and the prosecution notice sent to the superior court under s 46 of the Criminal Procedure Act, on which is recorded the matters required by s 47(1) of that Act, 'is to be taken to be an indictment': s 83(5)(b).
The words 'is to be taken to be' are a reasonably common drafting device in modern statutes enacted by the Parliament of this State. They are a form of deeming provision. See, in relation to the proper approach to the construction of deeming provisions, Hunter Douglas Australia Pty Ltd v Perma Blinds [1970] HCA 63; (1970) 122 CLR 49, 65 ‑ 67 (Windeyer J); The Council of the Shire of Redland v Stradbroke Rutile Pty Ltd [1974] HCA 4; (1974) 133 CLR 641, 655 (Gibbs J); Macquarie Bank Ltd v Fociri Pty Ltd (1992) 27 NSWLR 203, 207 (Gleeson CJ, Cripps JA agreeing).
The words 'is to be taken to be an indictment', in s 83(5)(b) of the Criminal Procedure Act, are a deeming provision. The Parliament has created a statutory fiction by enacting, in essence, that notwithstanding the form and substance of a prosecution notice, the notice is to be taken to be an indictment. Section 83(5)(b) creates a fictitious factual circumstance by transmogrifying the prosecution notice into an indictment. Compare Wainer v Rippon [1980] VR 129, 135 (O'Bryan J); Stradbroke Rutile (655); Loizos v Carlton & United Breweries Ltd (1994) 94 NTR 31, 32 (Kearney J).

The evident purpose of this deeming provision is to facilitate, within the overlapping legislative scheme of which it is part, the sentencing of an offender who has been committed for sentence by a court of summary jurisdiction to a superior court. The offender appears before the superior court for sentencing on the basis that, notwithstanding the summary conviction, he or she is liable to the indictment penalty instead of the summary conviction penalty.
This construction of s 83(5)(b) of the Criminal Procedure Act is confirmed by s 100(4) of that Act which provides that the sentence imposed by the superior court on the offender 'is to be taken, for all purposes' to be a sentence imposed by the superior court 'on indictment'.
The submission advanced on behalf of Ms Olive to the effect that s 83(5) and s 100(4) of the Criminal Procedure Act relate to events after the offender has been convicted and do not transform a 'summary conviction' into a 'conviction on indictment', for the purposes of s 59(3)(b) of the Road Traffic Act, and that the superior court is confined to the

imposition of the summary conviction penalty, must fail. The submission is unsustainable when it is examined against the clear Parliamentary intention revealed by the language of s 83(5)(b) and s 100(4) in the context of the overlapping legislative scheme as a whole.

The notice of contention is without merit.
MAZZA J: I agree with Buss JA.