The State of Western Australia v Ridout
[2024] WASCA 98
•15 AUGUST 2024
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: THE STATE OF WESTERN AUSTRALIA -v- RIDOUT [2024] WASCA 98
CORAM: BUSS P
MITCHELL JA
HALL JA
HEARD: 5 AUGUST 2024
DELIVERED : 15 AUGUST 2024
FILE NO/S: CACR 50 of 2024
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Appellant
AND
LUKE JORDAN RIDOUT
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: WALLACE DCJ
File Number : IND 1530 of 2023
Catchwords:
Criminal law - Sentencing - State appeal against sentence - Respondent convicted of one count of dangerous driving occasioning death and one count of dangerous driving occasioning bodily harm - Whether sentence of 2 years' imprisonment, partially suspended after respondent has served 6 months, manifestly inadequate - Whether court should refuse to interfere in exercise of residual discretion
Legislation:
Road Traffic Act 1974 (WA), s 49AB, s 59(1), s 59(3), s 59A(1)(b)
Result:
Appeal allowed
Respondent resentenced
Category: D
Representation:
Counsel:
| Appellant | : | B M Murray |
| Respondent | : | S Rafferty SC |
Solicitors:
| Appellant | : | Director of Public Prosecutions (WA) |
| Respondent | : | LegalNet |
Case(s) referred to in decision(s):
Barron v The State of Western Australia [2010] WASCA 27; (2010) 55 MVR 123
Beard v The State of Western Australia [2015] WASCA 74
Billing v The State of Western Australia [2017] WASCA 80; (2017) 80 MVR 127
CMB v Attorney-General (NSW) [2015] HCA 9; (2015) 256 CLR 346
Devine v The State of Western Australia [2010] WASCA 94; (2010) 202 A Crim R 1
Gelmi v The State of Western Australia [2019] WASCA 139; (2019) 89 MVR 443
Glasfurd v The State of Western Australia [2024] WASCA 7
Green v The Queen [2011] HCA 49; (2011) 244 CLR 462
Kabambi v The State of Western Australia [2019] WASCA 44
Kirby v The State of Western Australia [2016] WASCA 199; (2016) 78 MVR 380
Liyanage v The State of Western Australia [2017] WASCA 112; (2017) 51 WAR 359
Lyons v The State of Western Australia [2022] WASCA 81; (2022) 100 MVR 420
Marshall v The State of Western Australia [2015] WASCA 156; (2015) 253 A Crim R 99
Miorada v The State of Western Australia [2022] WASCA 143
Penny v The State of Western Australia [2006] WASCA 173; (2006) 33 WAR 48
Rhodes v The State of Western Australia [2022] WASCA 168; (2022) 103 MVR 90
Smith v The State of Western Australia [2022] WASCA 170; (2022) 103 MVR 80
The State of Western Australia v Butler [2009] WASCA 110
The State of Western Australia v Formica [2016] WASCA 104; (2016) 76 MVR 220
The State of Western Australia v Gibbs [2009] WASCA 7; (2009) 192 A Crim R 399
The State of Western Australia v Molloy [2020] WASCA 123; (2020) 93 MVR 361
The State of Western Australia v Tittums [2018] WASCA 23; (2018) 271 A Crim R 298
Timbrell v The State of Western Australia [No 2] [2013] WASCA 269; (2013) 240 A Crim R 1
JUDGMENT OF THE COURT:
Summary
On 7 May 2024, the respondent was convicted, on his pleas of guilty, of the following counts on an indictment:
1.dangerous driving occasioning death, contrary to s 59(1)(b) of the Road Traffic Act 1974 (WA) (RTA); and
2.dangerous driving occasioning bodily harm, contrary to s 59A(1)(b) of the RTA.
It was a pleaded circumstance of aggravation that the respondent drove the vehicle on a road at a speed of 30 km per hour or more above the speed limit. The maximum penalty for the offence charged in count 1 in those circumstances is a fine of any amount and 20 years' imprisonment.[1] The maximum penalty for the offence charged in count 2 in those circumstances is a fine of any amount and 10 years' imprisonment.[2]
[1] RTA, s 59(3)(a)(i).
[2] RTA, s 59A(3a).
Both charges arose out of the crash of a vehicle being driven by the respondent at about 4.00 am on 27 August 2022 at Mindarie. The deceased, Dominic Burns, and the injured complainant, Angus McKinnon-Toy, were both passengers in the vehicle. The respondent was an 18-year-old male with good antecedents who held a probationary driver's licence at the time of the offences. Immediately prior to the crash, the respondent drove the vehicle at a speed exceeding 150 km per hour, in an 80 km per hour zone, on a wet road at night while it was raining. The respondent lost control of the vehicle while driving in that manner.
On 7 May 2024, the respondent was sentenced to 2 years' imprisonment on count 1, and 8 months' imprisonment on count 2. The sentences were ordered to be served concurrently. The sentences were partially suspended, with the respondent to be released after serving 6 months. The balance of the term of 18 months' imprisonment was suspended for a period of 2 years. As the respondent had not spent any time in custody, the sentences took effect from 7 May 2024.
The appellant now appeals against the sentences imposed on the respondent, on the sole ground that the individual sentence imposed for the aggravated dangerous driving occasioning death offence charged in count 1 was manifestly inadequate. The sentence is said to be inadequate both as to the type of sentence imposed, which the appellant contends should be a sentence of immediate imprisonment, and the length of the sentence.
Leave to appeal has been granted on the sole ground of appeal.
For the following reasons, the sole ground of appeal is established and there is no proper basis for this court to dismiss the appeal in the exercise of its residual discretion. The respondent should be resentenced to a sentence of 4 years 4 months' immediate imprisonment for count 1 and a concurrent sentence of 8 months' immediate imprisonment for count 2.
Circumstances of offending
The circumstances of the offending were set out in a statement of material facts read to the sentencing court by the prosecutor, admitted by the respondent and adopted by the sentencing judge.[3]
[3] Sentencing ts 12 - 16, 42 - 45; defence sentencing submissions, par 1.
On 26 August 2022, the respondent and his friends, Mr Burns, Mr McKinnon-Toy and Callum Henry had been out at the Burswood Casino. They were all travelling together, returning home to the northern suburbs of Perth. At approximately 4.00 am on 27 August 2022, the respondent drove a Hyundai Accent north on Marmion Avenue in Mindarie. His friends were passengers in that vehicle. Mr Burns was sitting in the front passenger seat, Mr McKinnon-Toy was sitting in the centre rear passenger seat and Mr Henry was sitting in the right rear passenger seat.
The weather was raining, it was dark and the roads were wet. The speed limit on Marmion Avenue in that location was 80 km per hour. As the respondent approached the intersection of Marmion Avenue and Aviator Boulevard, he lost control of the vehicle. The vehicle dropped two front tyres into the dirt within the centre median strip and struck a traffic light warning sign. The vehicle continued north and the rear of the vehicle and driver's door struck two trees. The vehicle flipped and came to a rest on its roof after striking another tree further north.
Mr Burns suffered an unsurvivable head injury in the crash and died on 28 August 2022 due to head and chest injury complications. Mr McKinnon-Toy suffered a 1.5 cm laceration to his scalp, abrasions to his knees, lumbar pain and tenderness, and concussion, which required hospital treatment.
Major crash experts estimated that the respondent's vehicle was driving at between 142 km per hour and 154 km per hour as it passed a CCTV camera located about 940 m away from the crash site. Data from the vehicle indicated that it was travelling at 157 km per hour with 99% full throttle approximately five seconds before the crash. The throttle dropped to 5% four seconds before the crash and the vehicle was travelling at 151 km per hour two seconds before the crash. Half a second later the service brake was applied.
The major cause of the crash was the tired and inexperienced respondent driving at almost double the speed limit on a wet road at night while it was raining. The condition of the vehicle, which had some wear on the left rear tyre surface, did not cause or significantly contribute to the crash.
Victim impact
The sentencing judge noted that Mr Burns was a young 18-year-old man who had before him a life that would not now be lived. His death had a life-changing devastating effect upon his family, particularly his parents and sister.[4]
[4] Sentencing ts 45 - 46.
While Mr McKinnon-Toy did not suffer severe physical injuries, he required hospitalisation and ongoing rehabilitation treatment. Both Mr McKinnon-Toy and Mr Henry suffered the psychological impact of being involved in a devastating incident.[5]
[5] Sentencing ts 46.
Personal circumstances
The sentencing judge made the following findings as to the respondent's personal circumstances.[6]
[6] Sentencing ts 47 - 48.
The respondent was 18 years old at the time of the offence and 20 years old at the date of sentencing.
The respondent was born in the United Kingdom and moved to Western Australia with his family in 2011, when he was 9 years old. The adjustment to the new country was initially very difficult for the respondent. The respondent displayed some behavioural issues in his teenage years as a result of associating with antisocial peers and cannabis use. The respondent used cannabis between the ages of 13 years and 17 years. He began consuming alcohol at 16 years of age. The respondent was not under the influence of any substance at the time of the offending.
The respondent completed one term of year 11 before undertaking an apprenticeship as a panel beater, which he had completed at the date of sentencing. The respondent's employer was aware of the offending and remained highly supportive of him.
Mr Burns was the respondent's best friend, whom he had known for 10 years. They attended school together, played club soccer together, and socialised regularly. The respondent was traumatised by the incident and the death of his best friend, and the injuries sustained to the other victims.
At the time of the offending, the respondent was a probationary driver who had been driving for approximately 12 months. He had driven the vehicle for three months and was familiar with it. The respondent was also familiar with the road and the area.
Sentencing judge's approach
The sentencing judge identified the fact that the respondent drove while tired at approximately 77 km per hour over the speed limit in poor weather conditions on a dark wet road as an aggravating feature of the offending, which elevated the degree of risk. The sentencing judge also noted that, although the offending occurred at about 4.00 am when 'the roads would have been fairly deserted', the respondent's driving put other members of the public at danger.[7]
[7] Sentencing ts 47.
In relation to the respondent's speed, the sentencing judge observed:[8]
You admitted to the authors of the reports that you were driving faster than the speed limit but you struggled to believe that the speed was as fast as has been found by the Major Crash Investigation team. Unfortunately, as I said to counsel, it seems that none of your passengers realised the speed you were driving at either, or if they did, they sadly did not urge you to slow down.
You stated that at the time of committing these offences, you were keen to get home as you were tired, but you had an obligation to drive your passengers home first. You lost control of the vehicle after you drove through a patch of water on the road. You accept that your judgment was very poor leading up to the incident. After alighting the vehicle, you immediately called 000 for assistance, particularly for Mr Burns.
[8] Sentencing ts 48.
Later in her sentencing remarks, the sentencing judge made the following observations in relation to the speed at which the respondent drove the vehicle:[9]
Your speeding was not engaged in in circumstances where you were taking the vehicle for a joy ride in disregard of the consequences, that is you were not driving at excessive speed, perhaps reflective of antisocial behaviours often displayed in street drag racing, hoon driving and the like.
Rather, the excessive speed you drove at in my view was as a result of you being a relatively inexperienced driver, being tired and failing to pay attention.
[9] Sentencing ts 55.
The sentencing judge identified the following mitigating factors:
1.The respondent entered early pleas of guilty for which her Honour allowed a discount of 20% under s 9AA of the Sentencing Act 1995 (WA).[10]
2.The respondent was genuinely remorseful about, and took full responsibility for, his offending and its effect on his friends and the deceased's family members.[11]
3.The respondent's treatment needs are as a result of the trauma of the incident itself as opposed to treatment needs required to reduce the risk of recidivism. The respondent was at an extremely low risk, if any, of committing this kind of offending in the future. The need for personal deterrence was therefore significantly moderated.[12]
4.The respondent's offending was out of character.[13]
5.The respondent's youth was a significant mitigating factor.[14]
6.Although there was some 'minor juvenile offending' the respondent did not come before the court with any adult offending and was to be sentenced as a person of prior good character.[15]
7.The respondent suffered 'extra-curial punishment' in the form of severe post-traumatic stress disorder, major chronic depression, severe anxiety and a complicated grief and loss reaction.[16]
8.Those diagnoses together with the fact that the respondent was a youthful offender who had never previously served a custodial sentence would likely make serving a sentence of immediate imprisonment harsher for him as compared with other offenders.[17]
[10] Sentencing ts 47.
[11] Sentencing ts 49.
[12] Sentencing ts 49.
[13] Sentencing ts 49 - 50.
[14] Sentencing ts 50 - 51.
[15] Sentencing ts 50.
[16] Sentencing ts 50.
[17] Sentencing ts 54.
The sentencing judge concluded that sentences of imprisonment, while always a sentence of last resort, were justified in the circumstances of the offending and were 'required in order to achieve protection of the community'. Her Honour indicated that she would impose sentences of 2 years' imprisonment for count 1, and 8 months' imprisonment for count 2. Her Honour imposed licence disqualification periods of 2 years for each offence. Applying the totality principle, she ordered that the sentences of imprisonment and licence disqualification periods be served concurrently.[18]
[18] Sentencing ts 52.
The sentencing judge then turned to consider whether the sentences of imprisonment should be suspended. Her Honour said:[19]
Having considered a number of cases, it appears to me that ordinarily for offences of the nature reflected by count 1 a term of immediate imprisonment is the only appropriate sentencing disposition. Therefore, it appears that only in exceptional cases should the court deviate from the appropriate outcome ordinarily imposed.
[19] Sentencing ts 53.
The sentencing judge then referred to two decisions of this court where a suspended sentence was imposed or upheld for offences of dangerous driving occasioning death: The State of Western Australia v Formica;[20] and Timbrell v The State of Western Australia.[21] Noting that it was extremely difficult to find any truly comparable case, the sentencing judge said that these cases 'perhaps illustrate some of the factors which may lead the court to determine that a wholly suspended imprisonment order is appropriate'. Her Honour noted the important distinguishing feature in the respondent's case was the aggravating circumstance of the speeding.[22]
[20] The State of Western Australia v Formica [2016] WASCA 104; (2016) 76 MVR 220.
[21] Timbrell v The State of Western Australia [No 2] [2013] WASCA 269; (2013) 240 A Crim R 1.
[22] Sentencing ts 53 - 54.
The sentencing judge reiterated the mitigating factors noted above and noted the absence of aggravating factors such as driving under the influence of alcohol or drugs, driving whilst disqualified, an attempt to abandon the scene or a failure to render assistance. Her Honour then made the observations in relation to speed quoted at [24] above. The sentencing judge concluded:[23]
The absence of those features somewhat reduces your culpability in my view and lessens the severity of the offending. Having considered all relevant matters and having considered all of the sentencing options I am satisfied as I said that the seriousness of the offences does require a term of imprisonment being imposed and, in my view, also requires that you serve at least some of that term.
Given the mitigatory matters, however, and the extra-curial punishment that you had suffered and will continue to suffer, the circumstances of this particular offending and the fact that you are highly unlikely to reoffend I consider that the term can be partially suspended.
I consider that it is in your interests and in the community's interests that you therefore be released after you have served six months of the required term in custody with the balance of the sentence of 18 months being suspended from today for a period of two years.
[23] Sentencing ts 55.
The sentencing judge then imposed the sentences referred to above, and concluded her sentencing remarks with the following observations:
This has been a very difficult sentencing exercise for me personally and in a professional capacity, of course. There has been a number of competing objectives and factors that I have had to consider. The reality is nothing that the court did today would have ever given even the smallest measure of comfort to all those who have been impacted by this tragic event.
All the courts can do is weigh up all the objective factors, give proper and due consideration to comparable cases and then impose what the court believes is the correct sentence which will achieve those important sentencing objectives which is what I have strived to achieve today.
General principles
The general principles governing an assessment of whether an individual sentence of imprisonment is manifestly inadequate as to type of sentence or length are well established and need not be fully set out here.[24]
[24] Kabambi v The State of Western Australia [2019] WASCA 44 [21].
For present purposes it is sufficient to emphasise that, in determining whether a sentence is manifestly inadequate, regard must be had to the maximum sentence prescribed by law for the relevant offence, the standards of sentencing customarily observed with respect to the offence, the place which the offender's criminal conduct occupies on the scale of seriousness of offences of the kind in question and the personal circumstances of the offender. When a sentencing judge imposes a sentence of suspended imprisonment under pt 11 of the Sentencing Act and the State asserts on appeal that the sentence is manifestly inadequate as to type, the question for this court is whether it was open to the sentencing judge to be satisfied that suspended imprisonment was an appropriate sentencing option having regard to all relevant sentencing principles and considerations and in all the circumstances of the case.
Whether sentence for count 1 was manifestly inadequate
For the following reasons, the sentence imposed on the respondent on count 1 of the indictment was manifestly inadequate both as to type and length.
Maximum penalty
Section 59(1) of the RTA most relevantly provides:
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 -
…
(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).
Section 59(3)(a)(i) of the RTA relevantly provides that a person convicted on indictment of an offence against s 59(1)(b) in circumstances of aggravation is liable to a fine of any amount and to imprisonment for 20 years, if the person has caused the death of another person. The pleaded circumstance of aggravation in the present case, provided for in s 49AB(1)(b) of the RTA, is that the respondent was driving the vehicle concerned on a road at 30 km per hour or more above the speed limit.
Section 59(3) also provides for the following maximum terms of imprisonment for an offence against s 59(1)(b) of the RTA in different circumstances:
1.14 years where the offence is committed in circumstances of aggravation and the offender has caused grievous bodily harm to another person;
2.10 years if there are no aggravating circumstances and the person has caused the death of another person; and
3.7 years if there are no aggravating circumstances and the person has caused grievous bodily harm to another person.
Section 59(1)(a) - s 59(1)(bb) of the RTA create offences where the driver of a vehicle involved in an incident occasioning the death of, or grievous bodily harm to, another person is under the influence of alcohol and/or drugs to such an extent as to be incapable of having proper control of the vehicle. Those offences do not have driving the vehicle in a dangerous manner as an element. Under s 59(3), the maximum term of imprisonment for those offences is 20 years if the person has caused the death of another person and 14 years if the person has caused grievous bodily harm to another person. These maximum terms of imprisonment apply to the offences created by s 59(1)(a) - s 59(1)(bb) of the RTA irrespective of whether or not circumstances of aggravation are established.
Customary sentencing standards
This court recently reviewed the customary sentencing standards for the offence of aggravated dangerous driving occasioning death in Glasfurd v The State of Western Australia.[25] In that case, the court noted:[26]
[T]here is no tariff for offences of this nature because of the wide variety of circumstances in which they can occur and the differences in the personal circumstances of individual offenders. The disposition in a particular case is always sensitive to the individual circumstances of the offending and of the offender. Sentencing for an offence involving the death of a victim is inherently difficult because of the recognition of the value of a human life and the almost impossible task of compensating for its loss.
It is difficult to identify sentences that are commonly imposed for an offence of dangerous driving occasioning death. This is quintessentially an area in which the discretion residing in the first instance judicial officer must be accorded due respect. In [Billing v The State of Western Australia [2017] WASCA 80; (2017) 80 MVR 127], Mazza JA (with whom Buss P & Newnes JA agreed) observed that there were relatively few sentencing cases decided by this court with respect to aggravated dangerous driving occasioning death since the maximum penalty was increased in 2008. Sentencing patterns with respect to the offence were yet to emerge. That remains the position.
Although the offender's manner of driving is of significance in fixing an appropriate sentence, the legislative intent is that the consequences of the driving are of very great importance. (some citations omitted)
[25] Glasfurd v The State of Western Australia [2024] WASCA 7 [88] - [96].
[26] Glasfurd [87] - [89].
Neither Glasfurd nor the cases which it reviewed are directly comparable to the present case. However, it may be noted that the individual sentences imposed in those cases for dangerous driving occasioning death in circumstances of aggravation were significantly higher than the sentence imposed for that offence in the present case.
Aggravated dangerous driving occasioning death
In The State of Western Australia v Gibbs,[27] the offender drove at a speed of between 153 km per hour and 161 km per hour along a stretch of Tonkin Highway where the speed limit was 100 km per hour. A motorcycle with a driver and passenger, which was travelling in the same direction as the offender's vehicle, moved into the lane in which the offender was travelling. Because he was travelling so fast, the offender was unable to avoid driving into the back of the motorcycle. The driver and passenger of the motorcycle were both killed. The offender remained at the scene and rendered assistance. The 28-year-old offender pleaded guilty to two counts of aggravated dangerous driving occasioning death. He suffered from post-traumatic stress disorder as a result of the collision. The offender was generally of good character. However, after the driving offences but before being sentenced for those offences, he was sentenced to a term of imprisonment for drug offences associated with his attempts to self-medicate following the incident. A majority of this court dismissed a State appeal brought on grounds which included that individual sentences of 3 years' immediate imprisonment for each of the aggravated dangerous driving occasioning death offences were manifestly inadequate.
[27] The State of Western Australia v Gibbs [2009] WASCA 7; (2009) 192 A Crim R 399.
In Devinev The State of Western Australia,[28] the 21-year-old offender was convicted after trial of one count of aggravated dangerous driving occasioning death and one count of aggravated dangerous driving occasioning grievous bodily harm. The circumstance of aggravation was excessive speed. The offender drove at speeds in excess of 171 km per hour before losing control of his vehicle and colliding with a power pole. The collision killed one passenger and caused severe injuries to another. The offender had no relevant prior record and was remorseful. An individual sentence of 5 years 6 months' imprisonment for the aggravated dangerous driving occasioning death offence was held not to be manifestly excessive. In that case, this court reduced the total effective sentence from 7 years' to 6 years' imprisonment.
[28] Devinev The State of Western Australia [2010] WASCA 94; (2010) 202 A Crim R 1.
In Glasfurd, the offender was convicted on his pleas of guilty of offences arising out of a single incident of driving that occurred in inner‑city Perth. The incident involved the offender heavily accelerating his V8 Range Rover towards red traffic lights whilst under the influence of illicit drugs, losing control of the vehicle and colliding with another parked vehicle, which was propelled into a crowd of people at a public bar. The circumstance of aggravation in respect of the offences was that the offender was disqualified from holding a driver's licence at the time of the incident. He was sentenced to an individual sentence of 6 years 6 months' imprisonment for the offence of aggravated dangerous driving occasioning death, as part of a total effective sentence of 9 years 6 months' imprisonment. An appeal on the ground that the total effective sentence infringed the first limb of the totality principle was dismissed.
In The State of Western Australia v Tittums,[29] the offender pleaded guilty to three counts of aggravated dangerous driving occasioning death, one count of failing to report an incident occasioning death to police and one count of failing to render assistance. The circumstance of aggravation was excessive speed. The offender drove on a rural road at between 157 km per hour and 165 km per hour in a 90 km per hour speed zone with a blood alcohol level of 0.13%, together with methylamphetamine and other drugs in his system. His vehicle collided with the victims' vehicle, causing it to leave the road and strike trees. This resulted in a rupture of the fuel tank of the victims' vehicle. This caused the victims' vehicle to ignite and be engulfed in flames. The three occupants of that vehicle were killed. The offender left the scene of the accident and went home. He had no previous traffic convictions. A discount of 12.5% was allowed for the offender's pleas of guilty. On a State appeal, this court held that the sentences for failing to report the accident and render medical assistance were manifestly inadequate. On resentencing, the total effective sentence imposed was 10 years' imprisonment. Before a reduction of the sentence on one count for totality, this court considered individual sentences of 6 years 6 months' imprisonment to be appropriate for the three aggravated dangerous driving occasioning death charges.
[29] The State of Western Australia v Tittums [2018] WASCA 23; (2018) 271 A Crim R 298.
In The State of Western Australia v Molloy,[30] the offender was convicted on his pleas of guilty of 10 counts, including stealing a motor vehicle, one count of aggravated dangerous driving occasioning death, four counts of aggravated dangerous driving occasioning grievous bodily harm, three counts of dangerous driving occasioning bodily harm, one count of failing to report an incident and one count of failing to render assistance. The circumstances of aggravation for each of the dangerous driving offences were that the vehicle was used without the consent of the owner and that the offender was disqualified from driving. The offender drove a stolen vehicle at about 100 km per hour and without sufficient attention in a 70 km per hour zone. He crashed into the rear of a van that was stopped at a red traffic light, causing death or injuries to the occupants of the van. The offender pleaded guilty at the first reasonable opportunity and received a discount of 25%. He was initially sentenced to a total effective sentence of 7 years 6 months' imprisonment. A State appeal was allowed, and a new total effective sentence of 10 years' imprisonment was imposed. In resentencing the offender, this court imposed an individual sentence of 6 years 6 months' imprisonment for the aggravated dangerous driving occasioning death offence.
[30] The State of Western Australia v Molloy [2020] WASCA 123; (2020) 93 MVR 361.
In Billing, the offender pleaded guilty to offences which included one count of aggravated dangerous driving occasioning death. The circumstance of aggravation was speed. The offender drove at speeds of up to 220 km per hour through red lights and swerved to avoid collision with another vehicle. The car collided with the median strip, the offender lost control and the car spun and struck a pole. One passenger was killed, and two others were injured. A sentence of 10 years' imprisonment was imposed for the aggravated dangerous driving occasioning death offence. On appeal, the individual sentence of 10 years' imprisonment was reduced to 8 years' imprisonment, although the total effective sentence remained 10 years' imprisonment.
A suspended or conditionally suspended term of imprisonment was not imposed or upheld in any of the cases referred to above. Some of the offending in those cases was more serious than in the present case, and in some cases the offender was sentenced for other offending that would have precluded the imposition of a suspended or conditionally suspended sentence for the aggravated dangerous driving offence. In some cases, lesser mitigating factors applied. However, the length of the sentence of 2 years' imprisonment imposed on the respondent stands outside the range of sentences - from 3 years' to 8 years' immediate imprisonment - imposed or upheld by this court in the cases referred to above.
Dangerous driving absent circumstances of aggravation
As noted above, the sentencing judge referred to the decisions in Formica and Timbrell as cases where suspended sentences were imposed or upheld by this court. However, both of those cases concerned offences of dangerous driving occasioning death not involving circumstances of aggravation. The maximum penalty for those offences was a fine and imprisonment for 10 years. As this court held in Gelmi v The State of Western Australia,[31] in the similar context of an offence against s 59(1)(a) of the RTA:
Where an offender is to be sentenced for an offence against s 59(1)(a) of the [RTA], for which the maximum penalty is 20 years' imprisonment, reasonably comparable cases are not to be found in decisions of this court concerning offences of dangerous driving occasioning death where the maximum penalty is 10 years' imprisonment.
[31] Gelmi v The State of Western Australia [2019] WASCA 139; (2019) 89 MVR 443 [67].
The sentence imposed on the respondent in the present case is, in any event, difficult to reconcile with sentences imposed in cases of dangerous driving occasioning death when circumstances of aggravation are not established so that the lower maximum term of imprisonment of 10 years applies. Two recent examples of appeals against penalties imposed under s 59(1)(b) and s 59(3)(b)(i) of the RTA illustrate this point:
1.In Smith v The State of Western Australia,[32] the offender drove his vehicle into the rear of the deceased's vehicle which had been forced to stop due to congestion on the Kwinana Freeway. The offender had been driving the vehicle in an aggressive manner prior to the collision. The collision was caused by a combination of the offender travelling about 15 km per hour above the posted speed limit of 80 km per hour in a part of the freeway affected by roadworks and failing to keep a proper lookout for traffic in front of him. The 32-year-old offender received a 20% discount for a plea of guilty. He was remorseful and accepted responsibility for the offending and was at low risk of reoffending. Although he had a traffic record, the offender generally had reasonably good antecedents. This court refused leave to appeal against a sentence of 3 years' immediate imprisonment on the ground that it was manifestly excessive.
2.In Rhodes v The State of Western Australia,[33] the offender had been preparing to race another vehicle while the two vehicles were stopped at a red traffic light at a busy intersection. She mistakenly launched her vehicle into the intersection against a red light and collided with the deceased's vehicle which was travelling through the intersection on a green light. The 27‑year‑old offender was convicted after trial, was not fully and genuinely remorseful and did not genuinely accept responsibility for the offending. She had a poor traffic record, which elevated the significance of personal deterrence as a sentencing consideration. This court refused leave to appeal against a sentence of 4 years 6 months' immediate imprisonment on the ground it was manifestly excessive.
[32] Smith v The State of Western Australia [2022] WASCA 170; (2022) 103 MVR 80.
[33] Rhodes v The State of Western Australia [2022] WASCA 168; (2022) 103 MVR 90.
The fact that the deceased's death may have a severe impact on the offender does not generally preclude the imposition of a significant sentence of immediate imprisonment. This is illustrated by this court's decision in Kirby v The State of Western Australia.[34] In that case the offender was driving her 15-year-old daughter and friends after a party at her home at which the offender had been drinking. The offender tried to scare a moped rider by tailgating and swerving her vehicle behind him. She lost control of her vehicle while doing so and her daughter was killed in the resulting crash. The 47-year-old offender was of prior good character and pleaded guilty at the first reasonable opportunity, for which she received a 20% discount. The offender was remorseful and posed little or no risk of reoffending in a similar way again. No circumstances of aggravation were alleged, so the maximum term of imprisonment was 10 years. This court recognised that the offender was wracked with guilt and would have to live the rest of her life in the knowledge that she, by her actions, took the life of her daughter. While the court regarded this aspect of lifelong punishment to be significantly mitigatory, it rejected the argument that a sentence of 4 years 6 months' immediate imprisonment for the offence of dangerous driving occasioning the death of her daughter was manifestly excessive.
Driving under the influence of alcohol and/or drugs
[34] Kirby v The State of Western Australia [2016] WASCA 199; (2016) 78 MVR 380.
We also note the following cases concerning sentences for offences against s 59(1)(a) - s 59(1)(bb) of the RTA, where death results when the offender is driving under the influence of alcohol and/or drugs to such an extent as to be incapable of having proper control of the vehicle. In these cases, like the present, the maximum term of imprisonment is 20 years. However, unlike the present case, the gravamen of the offence is driving under the influence of drugs and/or alcohol rather than the dangerous manner of the driving.
In The State of Western Australia v Butler,[35] the offender pleaded guilty at the first reasonable opportunity to an offence of driving a motor vehicle under the influence of alcohol to such an extent as to be incapable of having proper control of the vehicle. In a suburban street where the speed limit was 50 km per hour, the offender accelerated heavily to overtake two vehicles, one of which was in the process of turning right. The offender's vehicle struck the turning vehicle and careered out of control into the front yard of a residence where it struck a pram containing a baby, who sustained fatal injuries. It was unclear how fast the offender was travelling and the extent to which he was affected by alcohol. The 24-year-old offender, who had good antecedents, pleaded guilty at the first reasonable opportunity and had demonstrated remorse and steps to deal with his alcohol consumption. A majority of this court dismissed a State appeal against an individual sentence of 2 years 10 months' immediate imprisonment. This early decision of the court in an unusual case may be regarded as something of an outlier given the later sentencing patterns.
[35] The State of Western Australia v Butler [2009] WASCA 110.
In Gelmi, the offender was convicted after trial of driving a trail bike on a public road while under the influence of alcohol to such an extent as to be incapable of having proper control of the bike. He drove the trail bike in which a 10-year-old girl was a passenger while he had a blood alcohol content of 0.136%. The offender, who was principally driving on a farm, lost control of the bike while on a public road. The child died as a result. The 46-year-old offender, who had good antecedents, was charged with manslaughter. He was found not guilty of that offence but convicted of an alternative offence against s 59(1)(a) of the RTA. This court dismissed the offender's appeal against his sentence of 5 years 3 months' imprisonment on the ground that it was manifestly excessive.
In Lyons v The State of Western Australia,[36] the offender was convicted on her plea of guilty of driving under the influence of drugs to such an extent as to be incapable of having proper control of the vehicle. The offender's driver's licence was suspended for non-payment of fines. The offender had slept very little for three days and began to fall asleep whilst driving at night on a country highway. She failed to negotiate a bend in the road, drove onto the incorrect side of the road and collided head on with a car coming in the opposite direction. The driver of the other vehicle was killed. The offender had previous traffic convictions. The offender received a 25% reduction in her sentence for her guilty plea. The offender's appeal against her sentence of 7 years' imprisonment was dismissed.
[36] Lyons v The State of Western Australia [2022] WASCA 81; (2022) 100 MVR 420.
In Barron v The State of Western Australia,[37] the offender was convicted after trial of one count of driving under the influence of alcohol to such an extent as to be incapable of having proper control of the vehicle. At the time of the incident, the offender's blood alcohol content was 0.187%. The offender hit and killed a pedestrian who was walking on the gravel verge of an unlit rural road. The offender was aged 47 years, had two prior convictions for dangerous driving occasioning death and a number of convictions for drink driving. There was little by way of mitigation. The offender's appeal against his sentence of 7 years 6 months' imprisonment was dismissed.
Manslaughter cases
[37] Barron v The State of Western Australia [2010] WASCA 27; (2010) 55 MVR 123.
Senior counsel for the respondent also referred to sentencing patterns for motor vehicle manslaughter at a time when the maximum penalty for that offence was also 20 years' imprisonment.[38] Sentences in cases of that kind, ranging from 3 years' immediate imprisonment to 10 years' immediate imprisonment, were reviewed by Buss JA in Penny v The State of Western Australia.[39] The review in Penny was referred to in the early decisions under s 59(1) of the RTA.[40]
[38] Appeal ts 25 - 28.
[39] Penny v The State of Western Australia [2006] WASCA 173; (2006) 33 WAR 48 [79] - [86].
[40] See Gibbs [61] - [62]; Butler [13] - [14].
The current utility in referring to old manslaughter cases is limited for various reasons. Manslaughter is a different offence with different elements than the offences created by s 59(1) of the RTA. The cases reviewed by Buss JA in Penny were decided prior to the enactment of the 'transitional provisions' in the Sentencing Legislation Amendment and Repeal Act 2003 (WA). Even before the increase in the maximum penalty for manslaughter to life imprisonment, an increase in sentences for manslaughter had been observed to better reflect the value which the community places on human life.[41] There are now a larger number of cases of this court dealing with appeals against sentences imposed for the offences created by s 59(1) of the RTA. Those cases now provide better guidance as to current customary sentencing practices for offences against s 59(1) of the RTA than motor vehicle manslaughter cases decided prior to 2006.
Seriousness of the offending
[41] See Beard v The State of Western Australia [2015] WASCA 74 [50], cited with approval in Marshall v The State of Western Australia [2015] WASCA 156; (2015) 253 A Crim R 99 [49] and Liyanage v The State of Western Australia [2017] WASCA 112; (2017) 51 WAR 359 [279].
In our view, this was a serious example of the offence of aggravated dangerous driving occasioning death. The objective danger posed to the respondent's passengers and members of the public by the way the respondent drove the vehicle was very high. Not only was the speed very high, the conditions in which the car was driven at over 150 km per hour in an 80 km per hour zone increased the obvious risk of an incident of the kind which occurred. Driving in that manner occurred for at least about a kilometre leading up to the crash. The roads were wet, it was dark and raining. The driver was inexperienced and tired. It is objectively unsurprising that the tragic consequences came to pass.
It is difficult to imagine that driving with the throttle fully engaged at over 150 km per hour on a wet road in the dark while it was raining could be the product merely of inexperience, tiredness, and inattention. We note that the finding of the sentencing judge quoted at [24] above is not challenged by the State in the appeal. However, even if the respondent did not subjectively appreciate how fast he was travelling, the extreme danger presented by the manner in which he drove the vehicle was objectively obvious and should have been appreciated by the respondent.
In drawing that conclusion, we accept 18-year-olds may often be more impulsive, lack judgement and be less cognisant of the seriousness of particular offending and that this may reduce a young offender's culpability.[42] However there was no finding or evidence that the respondent lacked the capacity to appreciate that his driving at over 150 km per hour on a dark wet road in the rain was extraordinarily dangerous. An ordinary 18-year-old would be expected to have that appreciation. The respondent appreciated that he was speeding in those conditions, and very little, if any, reduction in moral culpability flows from the fact that he may not have subjectively appreciated quite how fast he was travelling.
Personal circumstances
[42] See Miorada v The State of Western Australia [2022] WASCA 143 [33].
There was significant mitigation to be found in the respondent's personal circumstances in addition to his early plea of guilty. He was remorseful and at very low risk of reoffending in a similar manner again. He had the mitigating effect of prior good character. The fact that the respondent was only 18 years old at the time of the offending was a very significant mitigating factor, for the reasons explained in Miorada.[43] However, as the court noted in Miorada, a sentence of immediate imprisonment may be required for a youthful offender in order to properly reflect matters including the objective seriousness of the offending. In the present case, the significant mitigating factors must be balanced against the seriousness of the offending, arising from the extremely dangerous manner in which the respondent drove the vehicle.
[43] Miorada [33].
The sentencing judge found, without challenge in this appeal, that the respondent was at very low risk of reoffending, so that the significance of personal deterrence and community protection as sentencing considerations were significantly moderated. However, general deterrence remained a significant sentencing consideration.
Conclusion as to ground of appeal
In our view, the appellant's sole ground of appeal is established. The sentence imposed for count 1 failed to reflect the seriousness of the offending having regard to the aggravating and mitigating factors. Given the nature and circumstances of the offence it was not open to the sentencing judge to be satisfied that a sentence of suspended imprisonment under pt 11 of the Sentencing Act was an appropriate sentencing disposition. Although there were substantial mitigating factors, the seriousness of the offence remained such that it was not open to the sentencing judge to be satisfied that a partially suspended sentence of imprisonment was an appropriate kind of sentence. Further, having regard to the circumstances of the offence, the respondent's personal circumstances and all relevant sentencing principles, a sentence of only 2 years' imprisonment was unreasonable or plainly unjust. A significantly longer sentence of immediate imprisonment was required in order for the sentence to be commensurate with the seriousness of the aggravated dangerous driving occasioning death offence.
Residual discretion
This court has a residual discretion under s 31(4)(a) of the Criminal Appeals Act 2004 (WA) not to interfere with a primary judge's exercise of the sentencing discretion, in the context of a State appeal, notwithstanding that appellable error has been established. A respondent to a State appeal against sentence does not bear an onus to establish that the residual discretion should be exercised in his or her 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.[44]
[44] CMB v Attorney-General (NSW) [2015] HCA 9; (2015) 256 CLR 346 [33] ‑ [34], [64].
The difference in the approach of this court between offender appeals against sentence and State appeals against sentence is explicable by the purpose underpinning each category of appeals. Offender appeals are concerned with the correction of error in the particular case. State appeals are concerned with establishing principles for the guidance of sentencing judges.[45]
[45] Green v The Queen [2011] HCA 49; (2011) 244 CLR 462 [1]; CMB [55].
In our view, intervention in the present case is necessary to maintain adequate standards of sentencing. Appellable error has been clearly established, and the public interest in maintaining appropriate sentencing standards for serious offending of the kind that occurred in the present case counts strongly against the exercise of the residual discretion in the respondent's favour.
The respondent notes that the appeal was instituted 14 days after sentencing and the application for an urgent appeal order was filed 51 days after sentencing. The respondent is due for release from custody under the existing sentence on 6 November 2024.[46] In oral submissions, senior counsel for the respondent accepted that the appellant had dealt with the matter expeditiously and that delay was not relied on as a basis for refusing to exercise the court's residual discretion in the appellant's favour.[47]
[46] Respondent's submissions, par 17 (White AB 37 - 38).
[47] Appeal ts 30.
Senior counsel for the respondent also says that the respondent is still a young man suffering significant psychological issues which may be adversely impacted by an increase in his sentence. In our view, these mitigating factors can be taken into account in this court resentencing the respondent and do not provide a barrier to exercising the residual discretion in the appellant's favour.
Resentencing
This court has the necessary material to resentence the respondent.
Senior counsel for the respondent advised the court that there were no additional factors which had arisen since the recent sentencing of the respondent which had not been taken into account by the sentencing judge.[48]
[48] Appeal ts 30.
Having regard to the seriousness of the offence, a sentence of immediate imprisonment is the only appropriate sentencing disposition in this case. Like the sentencing judge, we would allow a discount of 20% under s 9AA of the Sentencing Act in respect of the respondent's plea of guilty. In our view, a sentence of 4 years 4 months' immediate imprisonment is commensurate with the seriousness of the offence charged in count 1 of the indictment.
The State's sole ground of appeal does not challenge the length of the sentence imposed on count 2, the order that it be served concurrently with the sentence for count 1 or the driving disqualifications imposed on the respondent. We would not alter those aspects of the respondent's sentence in the exercise of the court's resentencing discretion. The respondent should be made eligible for parole.
Orders
For the above reasons, the following orders should be made in the appeal:
1.The appeal is allowed.
2.The sentences of imprisonment imposed by the District Court of Western Australia on indictment number IND 1530 of 2023 are set aside and the following sentences are substituted:
Count 1: 4 years 4 months' immediate imprisonment.
Count 2:8 months' immediate imprisonment.
3.The sentence imposed on count 2 is to be served concurrently with the sentence imposed on count 1.
4.The substituted sentences referred to in order 2 are taken to have commenced on 7 May 2024.
5.The respondent is eligible for parole.
6.The respondent remains subject to the disqualifications from holding or obtaining a driver's licence imposed by the District Court of Western Australia on indictment number IND 1530 of 2023.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
RL
Associate to the Honourable Justice Mitchell
15 AUGUST 2024
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