The State of Western Australia v Tittums

[2018] WASCA 23

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   THE STATE OF WESTERN AUSTRALIA -v- TITTUMS [2018] WASCA 23

CORAM:   BUSS P

MAZZA JA
MITCHELL JA

HEARD:   10 OCTOBER 2017

DELIVERED          :   27 FEBRUARY 2018

FILE NO/S:   CACR 9 of 2017

BETWEEN:   THE STATE OF WESTERN AUSTRALIA

Appellant

AND

AMIEL JAMES TITTUMS
Respondent

ON APPEAL FROM:

Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA

Coram  :CORBOY J

File No  :INS 118 of 2016

Catchwords:

Criminal law - State appeal against sentence - Respondent convicted of three counts of aggravated dangerous driving occasioning death - Respondent also convicted of failing to report the incident occasioning the death of the three victims forthwith to the officer in charge of a police station - Respondent also convicted of failing to ensure that the victims received all the assistance, including medical aid, that was necessary and practicable in the circumstances - Pleas of guilty - Primary judge imposed a sentence of 1 year's immediate imprisonment and a motor driver's licence disqualification of 1 year for the offence of failing to report the incident forthwith - Primary judge imposed a sentence of 2 years' immediate imprisonment and a motor driver's licence disqualification of 2 years for the offence of failing to ensure that the victims received assistance - Manifest inadequacy - Total effective sentence of imprisonment on all counts of 9 years - Totality principle

Legislation:

Criminal Appeals Act 2004 (WA), s 31(4)
Road Traffic (Administration) Act 2008 (WA), s 4
Road Traffic (Authorisation to Drive) Act 2008 (WA), s 3(2), s 23A
Road Traffic Act 1974 (WA), s 54, s 56, s 59, s 106A
Road Traffic Amendment Act (No 2) 2007 (WA), s 20
Sentencing Act 1995 (WA), s 6, s 7, s 8, s 9AA, s 105

Result:

Leave to appeal granted on grounds 1, 2 and 3
Appeal allowed
Primary judge's sentencing decision set aside
Respondent resentenced

Category:    D

Representation:

Counsel:

Appellant:     Ms A L Forrester SC

Respondent:     Ms K J Farley SC

Solicitors:

Appellant:     Director of Public Prosecutions (WA)

Respondent:     Legal Aid (WA)

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

Abfahr v The State of Western Australia [2013] WASCA 87

Allen v The State of Western Australia [2017] WASCA 203

Avon Downs v Federal Commissioner of Taxation (1949) 78 CLR 353

Barbaro v The Queen [2014] HCA 2; (2014) 253 CLR 58

Billing v The State of Western Australia [2017] WASCA 80

Brewerton v The State of Western Australia [2017] WASCA 191

Carroll v The Queen [2009] HCA 13; (2009) 83 ALJR 579

Churnside v The State of Western Australia [2016] WASCA 146

CMB v Attorney General (NSW) [2015] HCA 9; (2015) 256 CLR 346

Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321

Director of Public Prosecutions (Vic) v Dalgliesh (a pseudonym) [2017] HCA 41; (2017) 91 ALJR 1063

Drage v The State of Western Australia [2015] WASCA 145; (2015) 71 MVR 555

Fazari v The State of Western Australia [2012] WASCA 176

Fisher v The Queen [1999] WASCA 122

Gray v The State of Western Australia [2015] WASCA 108; (2015) 71 MVR 31

Heferen v The Queen [1999] WASCA 81; (1999) 106 A Crim R 89

Herbert v The Queen [2003] WASCA 61; (2003) 27 WAR 330

Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520

House v The King [1936] HCA 40; (1936) 55 CLR 499

Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616

Kirby v The State of Western Australia [2016] WASCA 199

KND v The State of Western Australia [2017] WASCA 36

Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665

Lum v The State of Western Australia [2016] WASCA 145

Marchesano v The State of Western Australia [2017] WASCA 177

McLaughlin v The State of Western Australia [2012] WASCA 204

Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59

Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24

Minister for Immigration v Li [2013] HCA 18; (2013) 249 CLR 332

Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120

Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600

Nguyen v The Queen [2016] HCA 17; (2016) 256 CLR 656

Nguyen v The State of Western Australia [2007] WASCA 114

Panda v The State of Western Australia [2017] WASCA 5

Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610

Petersen v The State of Western Australia [2016] WASCA 66; (2016) 50 WAR 45

R v Lawrence (1980) 32 ALR 72

R v Pham [2015] HCA 39; (2015) 256 CLR 550

Rinaldi v The State of Western Australia [2017] WASCA 48

Sathitpittayayudh v The State of Western Australia [2015] WASCA 152

Tapper v The State of Western Australia [2016] WASCA 140

The State of Western Australia v Cairns [2006] WASCA 178

The State of Western Australia v Doyle [2017] WASCA 207

The State of Western Australia v Tittums [2016] WASCSR 264

The State of Western Australia v WTG [2016] WASCA 175

Timbrell v The State of Western Australia [No 2] [2013] WASCA 269; (2013) 240 A Crim R 1

Yaqubi v The State of Western Australia [No 2] [2016] WASCA 187

1. BUSS P & MAZZA JA:  This is a State appeal against sentence.

2. The respondent was charged on indictment with eight counts.  On 29 September 2016, he pleaded guilty to five of the counts.  The State accepted the pleas in full satisfaction of the indictment.

3. The charged offences to which the respondent pleaded guilty were as follows:

   (a)On 17 August 2015, at Glenfield, a Ford sedan motor vehicle driven by the respondent was involved in an incident occasioning the death of Felicity Jane Pallett and, at the time of the incident, the respondent drove the motor vehicle in a manner that was, having regard to all the circumstances of the case, dangerous to the public or any person, and the respondent drove the vehicle on a road at a speed that exceeded, by more than 45 km per hour, the speed limit of 90 km per hour applicable to that length of road, contrary to s 59(1)(b) of the Road Traffic Act 1974 (WA) (the RT Act) (count 2).

   (b)On the same date and at the same place as in count 2, and in the same incident and by the respondent's same aggravated dangerous driving as in count 2, the death of Michael Hook was occasioned, contrary to s 59(1)(b) of the RT Act (count 4).

   (c)On the same date and at the same place as in count 2, and in the same incident and by the respondent's same aggravated dangerous driving as in count 2, the death of Cowen Joseph Kentwell was occasioned, contrary to s 59(1)(b) of the RT Act (count 6).

   (d)On the same date and at the same place as in count 2, the respondent, being the driver of a motor vehicle on a road, was involved in an incident occasioning death to Ms Pallett, Mr Hook and Mr Kentwell, and failed to report the incident forthwith to the officer in charge of a police station, contrary to s 56(1) read with s 56(2) of the RT Act (count 7).

   (e)On the same date and at the same place as in count 2, the respondent, being the driver of a vehicle on a road which was involved in an incident occasioning death to other persons (namely, Ms Pallett, Mr Hook and Mr Kentwell), failed to ensure that Ms Pallett, Mr Hook and Mr Kentwell received all the assistance, including medical aid, that was necessary and practicable in the circumstances, contrary to s 54(2) read with s 54(3)(a) of the RT Act (count 8).

4. In the indictment, counts 2, 4 and 6 (the aggravated dangerous driving offences) were pleaded in the alternative to counts 1, 3 and 5 which alleged manslaughter, contrary to s 280 of the Criminal Code (WA).

5. On 10 November 2016, Corboy J heard submissions from the prosecutor and defence counsel on sentencing.  His Honour reserved his decision.

6. On 15 December 2016, the sentencing judge made his sentencing remarks and imposed the following individual sentences:

   (a)count 2:     6 years 6 months' imprisonment and a motor driver's licence disqualification for 2 years.

   (b)count 4:     6 years 6 months' imprisonment and a motor driver's licence disqualification for 2 years.

   (c)count 6:     6 years 6 months' imprisonment and a motor driver's licence disqualification for 2 years.

   (d)count 7:     1 year's imprisonment and a motor driver's licence disqualification for 1 year.

   (e)count 8:     2 years' imprisonment and a motor driver's licence disqualification for 2 years.

7. His Honour ordered:

   (a)as to the individual terms of imprisonment, that the sentence for count 7 be served concurrently with the sentence for count 8; the sentence for count 6 commence 1 year after the commencement of the sentence for count 8; the sentence for count 4 commence 9 months after the commencement of the sentence for count 6; and the sentence for count 2 commence 9 months after the commencement of the sentence for count 4; and

   (b)as to the individual motor driver's licence disqualifications, the period of disqualification for count 7 operate cumulatively upon the period for count 8; the period of disqualification for count 6 operate concurrently with the period for count 8; the period of disqualification for count 4 operate concurrently with the period for count 8; and the period of disqualification for count 2 operate concurrently with the period for count 8. 

8. Consequently, the total effective sentence of imprisonment was a term of 9 years and the total effective motor driver's licence disqualification was a period of 3 years.  His Honour backdated the sentence of imprisonment for count 8 and the total effective sentence of imprisonment to 29 September 2016.  A parole eligibility order was made.  See The State of Western Australia v Tittums.[1]

   [1] The State of Western Australia v Tittums [2016] WASCSR 264.

9. The State's appeal alleges that the sentencing judge erred in relation to the individual sentences of imprisonment imposed on counts 7 and 8, the period of the motor driver's licence disqualification for each offence and the total effective sentence of imprisonment.  We would allow the appeal in respect of the individual sentences of imprisonment for counts 7 and 8 on the basis that each sentence was manifestly inadequate.  We would also allow the appeal in respect of the motor driver's licence disqualification for each offence on the basis that each period of disqualification was manifestly inadequate.  It is unnecessary to consider the State's challenge to the total effective sentence of imprisonment because this court must resentence the respondent as a consequence of error having been established in relation to the individual sentences of imprisonment imposed on counts 7 and 8.

The facts and circumstances of the offending and the respondent's personal circumstances

1. The facts and circumstances of the offending, as read aloud by the prosecutor at the sentencing hearing, were admitted by the respondent.

2. The sentencing judge made findings consistent with the admitted facts.  Those findings included:

   (a)Shortly after 1.44 am on 17 August 2015 the three victims were travelling in a motor vehicle north along Chapman Road, Glenfield.

   (b)At that time the respondent was driving a motor vehicle north along Chapman Road.  Initially, his vehicle was some distance behind the victims' vehicle.  However, the respondent was travelling at a minimum average speed of between 157 km per hour and 165 km per hour.  The applicable speed limit was 90 km per hour.

   (c)The respondent's vehicle collided with the rear right‑hand corner of the victims' vehicle.  The collision caused the victims' vehicle to leave the road and strike some trees.  The collision also ruptured the fuel tank of the victims' vehicle.  As a result, their vehicle ignited and was engulfed in flames. 

   (d)The respondent's vehicle continued along Chapman Road for another 82 m before it came to rest.  His vehicle also ignited but he exited before the fire became established.  He did not suffer any smoke inhalation or burns. 

   (e)The respondent made no attempt to assist the victims or to report the incident to the police or the other emergency services.

   (f)The respondent abandoned his vehicle.  He left the scene and walked a distance of about 1.5 km to his home.  Upon arrival the respondent showered, changed his clothes and went to sleep in his bed.

   (g)The noise of the collision awoke people who resided in the vicinity.  They telephoned the police and the other emergency services.  Police arrived at the scene at 2.15 am.  The fire brigade attended about 25 minutes later.

   (h)The victims died at the scene.  A post-mortem examination revealed that the cause of death was smoke inhalation or, possibly, smoke inhalation and incineration. 

   (i)At about 5.00 am on 17 August 2015, police attended the respondent's home.  The respondent told the police officers that he did not know where his vehicle was or who had it.  He denied having any injuries.  However, the police officers observed a line of bruising from his right collarbone to his mid‑chest.  The bruising was consistent with an injury made by a seatbelt.

   (j)The respondent's blood alcohol level at the time of the collision was calculated to have been 0.13%.  An analysis of his blood also disclosed traces of diazepam, doxylamine and amphetamine.  Methylamphetamine at a concentration of 0.03 mg per litre of blood was detected.

   (k)Subsequently, the respondent made a statement to his insurance company in which he admitted having consumed alcohol before the collision.

3. The sentencing judge recounted the respondent's personal circumstances.  The respondent was born on 18 February 1980.  He was aged 35 at the time of the offending and was 36 when sentenced.  He is married and has two children, aged 7 and 4.  The respondent left school after completing year 10.  He worked with his stepfather for 10 years as a deckhand fisherman.  When the incident occurred he was employed with a mining company's marine crew.  The respondent had a minor criminal record and no convictions for traffic offences.  He does, however, have a history of alcohol and drug abuse.  Since the offending the respondent has sought counselling for his substance abuse. 

4. His Honour identified the following aggravating factors:

   (a)The respondent had driven his vehicle while his blood alcohol level was more than 2.5 times the legal limit and his body contained traces of methylamphetamine.

   (b)The respondent had driven his vehicle at a speed that exceeded the applicable speed limit by approximately 70 km per hour.  This was a statutory circumstance of aggravation.

   (c)The respondent had been extraordinarily callous in walking away while the victims died and their bodies were incinerated.  When he arrived at his home the respondent showered and went to bed without making any attempt to report the incident.

   (d)The respondent's dangerous driving had resulted in the death of three people.

   (e)When spoken to by police, the respondent had lied by telling them that he had not used his vehicle and had not been injured.

5. The sentencing judge rejected the prosecutor's submission that the respondent's aggravated dangerous driving offending was within the worst category of offences of its kind.  His Honour noted the absence of factors such as a police pursuit, competitive driving, ignoring warnings or driving while disqualified or under suspension or while on parole or serving a suspended sentence.  However, his Honour accepted that the respondent's aggravated dangerous driving offending was towards the upper end of seriousness for offending of its kind.  His Honour noted the extraordinary speed at which the respondent drove his vehicle and found that the respondent must have known that he was not physically or emotionally fit to drive.  The respondent had been drinking alcohol throughout the afternoon and evening.  He was tired and sleepy and had argued with his partner.  The collision resulted in multiple fatalities.

6. His Honour identified the following mitigating factors:

   (a)The respondent had pleaded guilty. The plea was not at the earliest reasonable opportunity, but his Honour allowed a discount of 12.5% pursuant to s 9AA of the Sentencing Act 1995 (WA).

   (b)The respondent did not have a criminal record for driving offences.  He was a loving family man and had a good work history.

   (c)The respondent had shown 'genuine remorse' and was 'deeply distressed about the impact' of his offending.  He had taken responsibility for the consequences of his criminal conduct [95], [97].

7. The sentencing judge noted the contents of a number of victim impact statements he had received.  The families of the victims suffered a devastating loss.

The formulation of the individual sentences and the total effective sentence

1. We have already recounted the individual sentences imposed by the sentencing judge.

2. His Honour said:

   (a)If his Honour were to treat the respondent's failure to ensure assistance and his failure to report the incident as factors that aggravated the seriousness of his offending for the dangerous driving occasioning death offences, and then subsequently and separately punished the respondent for the remaining counts on the indictment, his Honour would be infringing the principle against double punishment where offences have common elements [51] ‑ [53].

   (b)Accordingly, in deciding upon the individual sentences for counts 2, 4 and 6, his Honour would not take into account, as an aggravating factor, the respondent's failure to ensure assistance or his failure to report the incident forthwith. The respondent would be 'separately punished for those matters by the sentences that [his Honour would] impose on counts 7 and 8' [53].

   (c)His Honour would deal with the aggravating factor of the respondent's 'extraordinary callousness … in walking away from the scene while [the] victims died and their bodies were incinerated', and the aggravating factor that the respondent's actions 'resulted in the death of three young people', by a partial accumulation of the sentences to be imposed on the dangerous driving occasioning death counts and by a partial accumulation of the sentence to be imposed on the failure to ensure assistance count.  His Honour reiterated that he had not 'taken into account [the respondent's] failure to [ensure] assistance as an aggravating factor in determining the sentence to be imposed for the dangerous driving [occasioning] death counts' [85] ‑ [87].

   (d)Some accumulation of the individual sentences was appropriate 'balancing the need to ensure that the total effective sentence … is proportional to the overall level of criminality involved'. His Honour would 'partially accumulate the sentences to be imposed on counts 2, 4 and 6' [103].

   (e)His Honour considered that the respondent's failure to ensure assistance was 'a very serious offence and that it [was] appropriate that there should be some separate accumulation of [his] offending on that count because of the seriousness of the offence and because of the need to deter and to punish for that type of offence'. Consequently, his Honour would also partially accumulate the sentence to be imposed on count 8 [104].

   (f)His Honour '[had] then balanced the sentences to be imposed on all counts … having regard to the first limb of the totality principle'. His Honour '[had] … taken a final look at the sentences to be imposed' [105].

   (g)His Honour decided that, '[f]or the benefit of counsel and for [the respondent's] benefit [his Honour would] first state the total effective sentence [and his Honour would] then sentence [the respondent] on each count because the way in which those counts [were] to be accumulated [was] quite complicated' [106].

   (h)His Honour told the respondent that he was 'going to sentence [the respondent] when [he came] to each count to a total effective sentence of 9 years' imprisonment [and that he had] arrived at that sentence in the following way' [107].

The respondent's professed lack of recollection of the incident and its aftermath

1. The material before the sentencing judge included a psychological report dated 4 November 2016 from Dr Phil Watts, a clinical and forensic psychologist, and a pre‑sentence report dated 3 November 2016.

2. The respondent informed Dr Watts that on the afternoon before the collision he had been at a football match where he had consumed alcohol.  After the match he continued drinking at his home.  The respondent had an argument with his partner.  He told Dr Watts that he 'wanted to get away from home to cool down' so he 'drove off in the car to go somewhere quiet to sleep off the argument'.  However, the respondent could not sleep.  He decided to drive home and, on the return journey, the collision occurred.

3. Dr Watts summarised the respondent's recollection of the incident and its aftermath, as conveyed by the respondent to Dr Watts:

   [The respondent] said that he does not remember much of what happened.  He said that he remembered seeing a flash.  He spoke about being dazed and reports no memory of how he got out of his car or how he got home.  He said that he vaguely remembered going home, which he estimated was about 1 km from the crash scene.  He said that when he had walked home he then had a shower and went to bed.  The way in which [the respondent] described the situation is that he said that he had walked aimlessly around.  He reported that he had felt numb.  He said that he had no recollection of any accident until the police knocked on the door.  He said 'when the cops sat me down that's when it came back'.  He said that a few days after the event he started to get some flashbacks (predominantly of a flash associated with the accident).  He also reported that the fact the police found some CCTV footage that showed the accident has been helpful to him because he did not remember much and seeing what happened has helped him understand the situation.  (original emphasis)

4. Dr Watts was of the view that the respondent's blood alcohol level at the time of the collision would not have affected his memory.  There was nothing to suggest that he had suffered a major head injury.  A person who suffers accident‑related confusion is unlikely to be able to find their way home.  However, Dr Watts considered it likely that the respondent was 'somewhat traumatised' by the collision and that 'it [was] possible he was in a state of shock'.  Also, it was possible that the respondent 'may have minimised details around his failure to render assistance'.  There was 'no psychological way of determining this point'.

5. At the sentencing hearing, defence counsel informed his Honour that:

   (a)Defence counsel '[could not] say' whether the respondent's professed lack of recollection was genuine (ts 38). 

   (b)The respondent's position was that he did not recall any of the facts and circumstances relating to the incident, but he accepted the facts and circumstances as alleged by the State.  In particular, he accepted that he did not 'render the assistance that [he] ought to have' and that his Honour would 'take that into account as an aggravating feature' and that his failure to render assistance 'makes his conduct worse and he accepts that [he will] pay a price for that' (ts 39).

   (c)It may be that the respondent did not 'want to remember, because to remember would be undoubtedly a traumatic revelation for him to have to deal with', but the 'bottom line in that regard … is that whether he remembers or [does not] remember, his conduct remains the same and your Honour will deal with it accordingly' (ts 40). 

6. The prosecutor made the following submissions to the sentencing judge as to the respondent's professed lack of recollection of the incident and its aftermath:

   [A]s your Honour knows, after [the respondent] has caused this incident, instead of trying to do anything to help the people who were in the burning vehicle as a result of his criminal behaviour, he simply went off back to his home as his victims perished.

   Now, it is the case of course that we cannot know whether he could have saved them, whether he remained, but the fact is any chance they did have of survival was lost when the first person on the scene, himself, walked away from the scene.

   We submit that the fact he was able to find his way home without incident, some distance of approximately one and a half kilometres, showed he had some wherewithal about him at the time.  He was able to work out where he was, where his home was and was able to get home.

   So we'd submit it's not someone who's simply in a complete state of shock and has no idea what's going on.  The fact that he's able to find his way home suggests, as I say, he had enough wherewithal around him to do that.  And then when he gets home, of course, again as your Honour has heard, he showers and goes to bed by his own admission.

   He doesn't even make any effort then to report this incident or to arrange for any help to be sent to the scene.  As it happens, other people became aware fairly quickly of what had happened, but he had no way of knowing that.

   And then as your Honour has heard, again, when the police ultimately did arrive at his home, he initially lied or misled them about his knowledge of the incident, saying he didn't know who had been in charge of the vehicle and saying despite the fact he had that seatbelt bruising that he didn't have any injuries.

   On the point of the submission to your Honour that he has little recollection and may have been in shock at the time, the State submits that is probably a matter that doesn't actually make any significant difference in terms of his culpability.  But nonetheless, it does appear inconsistent with the fact he was able to find his way home and the fact he had the wherewithal to lie to the police.

   And as my learned friend has acknowledged, even the defence psychologist is unable to tell, psychologically speaking, where the truth of the matter lies, whether he is minimising his responsibility or whether he has a genuine lack of [recollection].

   Ultimately, the State submits really, there's not a lot of difference between those two.  It still remains the fact he got behind the wheel of that vehicle while significantly intoxicated, he drove at a greatly excessive speed, and either because of voluntary intoxication or because of utter selfishness and callousness, he left his victims to die while he went home and went to bed (ts 54 ‑ 55).

7. His Honour referred to Dr Watts' views concerning the respondent's account of his recollection. His Honour appears to have accepted that the respondent had 'little memory of what occurred' [30].

8. Although the sentencing judge appears to have accepted that the respondent had 'little memory of what occurred', there was no mitigation in relation to counts 7 and 8 in the respondent's professed lack of recollection of the incident and its aftermath, having regard to the following:

   (a)The respondent pleaded guilty to counts 2, 4, 6, 7 and 8 and consequently was criminally responsible for the offending.

   (b)The respondent drove while voluntarily intoxicated. 

   (c)After the collision the respondent was able to walk about 1.5 km from the scene to his home.  At about 5.00 am he lied to the police about his knowledge of the incident.

   (d)His Honour found that the seriousness of the respondent's offending was aggravated by 'the extraordinary callousness [he] demonstrated in walking away from the scene while [his] victims died and their bodies were incinerated'. Further, the respondent then showered and went to bed without making any attempt to report the incident [85].

   (e)His Honour expressly identified the mitigating factors and those factors did not include any facts or circumstances connected with the respondent's professed lack of recollection.

   (f)His Honour said that counts 7 and 8 were 'serious offences' [98]. The respondent's 'failure to [ensure] assistance [was] a very serious offence' and there was '[a] need to deter and to punish for that type of offence' [104].

The grounds of appeal

1. The State relies on four grounds of appeal.

2. Ground 1 alleges that the sentence of 2 years' imprisonment for the offence of failing to ensure that the three victims received all the assistance, including medical aid, that was necessary and practicable in the circumstances (count 8), was manifestly inadequate.

3. Ground 2 alleges that the sentence of 1 year's imprisonment for the offence of failing to report forthwith, to the officer in charge of a police station, the incident occasioning the death of the three victims (count 7), was manifestly inadequate.

4. Ground 3 alleges that the period of the motor driver's licence disqualification for each offence was manifestly inadequate.

5. Ground 4 alleges that the total effective sentence of imprisonment (namely a term of 9 years) infringed the first limb of the totality principle.

6. The State does not challenge the individual sentences of imprisonment for the aggravated dangerous driving offences (counts 2, 4 and 6) or the total effective motor driver's licence disqualification.

7. On 17 March 2017, Mazza JA granted leave to appeal on ground 4 and referred the application for leave to appeal on grounds 1, 2 and 3 to the hearing of the appeal.

Grounds 1 and 2:  the respondent's submissions

1. Counsel for the respondent submitted that the sentencing judge decided upon 'the structure and length of the sentences imposed on each of the counts … to effect a final total sentence … that was an appropriate overall sentence in all the circumstances of the case'.  In those circumstances, 'it would be an incorrect approach to single out individual sentences for complaint of manifest inadequacy'.  It was contended that even if the individual sentences for counts 7 and 8, had they stood alone, 'could be considered to be manifestly inadequate, they did not stand alone and must be considered simply as a portion of the overall sentence'.  Accordingly, although his Honour 'could have, in the exercise of his sentencing discretion, imposed longer terms on counts 7 and 8 … there is no indication that his discretion miscarried in the imposition of those terms when regard is had to the totality of the aggregate term'.

Grounds 1 and 2:  their merits

1. A ground of appeal which asserts that a sentence is manifestly inadequate asserts the existence of an implied error.  It is necessary, in determining whether a sentence is manifestly inadequate, to examine it from the perspective of the maximum sentence prescribed by law for the relevant offence, the standards of sentencing customarily observed with respect to that offence, the place which the criminal conduct occupies on the scale of seriousness of offences of the kind in question, and the offender's personal circumstances. 

2. The guidance afforded by comparable cases is flexible rather than rigid.  The mere fact a sentence is within the range of other sentences imposed for similar offending does not necessarily establish that there was an appropriate exercise of the sentencing discretion in the particular case.  Similarly, the mere fact a sentence is outside the range does not necessarily establish that the exercise of the sentencing discretion in the particular case miscarried.  A sentencing range for comparable offences is merely one of the factors to be taken into account in deciding whether a sentence is manifestly inadequate.  A range of sentences customarily imposed is of significance for the purpose of ensuring broad consistency in the sentencing of offenders in broadly comparable cases.  However, a sentencing range for comparable cases does not fix the range of a sound exercise of the sentencing discretion in a particular case.

3. When an appellate court dismisses an appeal against sentence, and when it allows an appeal against sentence and resentences the offender, the court's decision on the sentencing outcome does not, of itself, fix the upper or lower limit of the range. 

4. If, in a particular case, there are no directly comparable cases, this court is not precluded from deciding that an individual sentence is manifestly inadequate.  It merely has the consequence that this court has no directly comparable cases to provide a yardstick with which to judge the adequacy of the sentence imposed at first instance.  See Munda v The State of Western Australia;[2] The State of Western Australia v Doyle.[3]

   [2] Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600 [38] - [39] (French CJ, Hayne, Crennan, Kiefel, Gageler & Keane JJ).

   [3] The State of Western Australia v Doyle [2017] WASCA 207 [36] (Buss P, Mazza JA & Hall J).

5. A sentencing judge is obliged to sentence an offender in accordance with the sentencing principles set out in pt 2 div 1 of the Sentencing Act. Part 2 div 1 comprises s 6 to s 9AA.

6. By s 6(1), a sentence imposed on an offender must be commensurate with the seriousness of the offence. This is a fundamental sentencing principle. Section 6(2) provides that the seriousness of an offence must be determined by taking into account the statutory penalty for the offence (par (a)); the circumstances of the commission of the offence, including the vulnerability of any victim of the offence (par (b)); any aggravating factors (par (c)); and any mitigating factors (par (d)). By s 7(1), aggravating factors are those factors which, in the court's opinion, increase the culpability of the offender. Section 7(2) provides that an offence is not aggravated by the fact that the offender pleaded not guilty to it (par (a)); the offender has a criminal record (par (b)); or a previous sentence has not achieved the purpose for which it was imposed (par (c)). By s 8(1), mitigating factors are those factors which, in the court's opinion, decrease the culpability of the offender or decrease the extent to which the offender should be punished. Section 9AA regulates the extent to which the court may reduce, on account of an offender's plea of guilty to a charge for an offence, the sentence that the court would have imposed for the offence if the offender had been found guilty after a plea of not guilty and there were no mitigating factors. Section 9AA does not prevent the court from reducing the 'head sentence' (as defined in s 9AA(1)) for an offence because of any mitigating factor other than a plea of guilty (s 9AA(6)).

7. Except where a mandatory sentence is prescribed, a sentencing judge exercises a discretionary judgment which is subject to applicable statutory provisions and judge-made law.  See Barbaro v The Queen.[4]

   [4] Barbaro v The Queen [2014] HCA 2; (2014) 253 CLR 58 [25] (French CJ, Hayne, Kiefel & Bell JJ).

8. The discretion conferred on sentencing judges is, of course, of fundamental importance and this court may not substitute its opinion as to sentencing for that of the sentencing judge merely because it would have exercised the discretion in a different manner.

9. It is well established that:

   (a)a judge sentencing an offender for multiple offences must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence as well as questions of totality;

   (b)if, in fixing the appropriate sentence for each offence, proper principle is not applied, orders made for cumulation or concurrence will be made on an imperfect foundation; and

   (c)if an appropriate sentence is not fixed for each offence, the failure to do so may give rise to artificial claims of disparity between co‑offenders or otherwise distort general sentencing practices in relation to particular offences.

   See Pearce v The Queen;[5] Nguyen v The Queen.[6]

   [5] Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 [45] ‑ [48] (McHugh, Hayne & Callinan JJ).

   [6] Nguyen v The Queen [2016] HCA 17; (2016) 256 CLR 656 [37] (Bell & Keane JJ).

10. However, a sentencing judge may, in the application of the totality principle, achieve an appropriate total effective sentence either by ordering one or more of the individual sentences to be served wholly or partly concurrently or by reducing the otherwise appropriate length of one or more of the individual sentences.  See Mill v The Queen;[7] Johnson v The Queen[8] and Nguyen v The Queen.[9]  Although the joint judgment in Mill expressed a preference for achieving an appropriate total effective sentence by, where practicable, making one or more of the individual sentences wholly or partly concurrent, it is not erroneous for a sentencing judge to lower one or more of the individual sentences below what would otherwise be appropriate. For example, the operation of s 88(4) of the Sentencing Act may make it unfeasible, in a particular case, to order one or more individual sentences to be served partly concurrently.

    [7] Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59, 63 (Wilson, Deane, Dawson, Toohey & Gaudron JJ).

    [8] Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616 [26] (Gummow, Callinan & Heydon JJ).

    [9] Nguyen v The Queen [64] (Gageler, Nettle & Gordon JJ).

11. If a sentencing judge decides, in the application of the totality principle, to achieve an appropriate total effective sentence by lowering one or more of the individual sentences below what would otherwise be appropriate, the judge should expressly state that fact in his or her sentencing remarks.  That is the usual practice of sentencing judges in this State.

12. Sentencing appeals often refer to an 'available range' of sentences for the offender.  The notion of an 'available range' of sentences for an offender derives from the principles expressed in House v The King.[10]  In House, Dixon, Evatt and McTiernan JJ identified a residuary category of error in discretionary judgment, namely the appellate court infers error where the result or conclusion of the primary court is unreasonable or plainly unjust (505).  This kind of error is usually referred to, in the context of sentencing appeals, as 'manifest excess' or 'manifest inadequacy'.  However, appellate courts also refer to this kind of error as involving the imposition of a sentence that falls outside the 'range of sentences' which could have been imposed on the offender if proper principles had been applied.  See Barbaro [26].

    [10] House v The King [1936] HCA 40; (1936) 55 CLR 499.

13. The appellants in Barbaro pleaded guilty to serious drug offences against the laws of the Commonwealth. Their appeals against sentence were dismissed. The High Court held that the appellants were not denied procedural fairness by the sentencing judge's refusal to receive statements of what the prosecution considered to be the bounds of the available sentencing ranges. The sentencing judge did not fail to take account of a material consideration by not receiving such statements. French CJ, Hayne, Kiefel and Bell JJ said the prosecution should not be permitted to make a submission to a sentencing judge about the bounds of the available sentencing range [23].

14. In Barbaro, French CJ, Hayne, Kiefel and Bell JJ made these observations in relation to the kind of error usually referred to in sentencing appeals as 'manifest excess' or 'manifest inadequacy':

    But this kind of error can also be (and often is) described as the sentence imposed falling outside the range of sentences which could have been imposed if proper principles had been applied.  It is, then, common to speak of a sentence as falling outside the available range of sentences [26]. (original emphasis)

15. References in sentencing appeals to the sentence imposed by the primary judge falling outside the range of sentences which could have been imposed if proper principles had been applied reflect the well‑established principle that there is no single unique correct sentence for specific offending or a particular offender.  See Lowndes v The Queen.[11]

    [11] Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 [15] (Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne & Callinan JJ).

16. In Barbaro, French CJ, Hayne, Kiefel and Bell JJ went on to note that:

    (a)the essentially negative proposition that a sentence is so wrong that there must have been some misapplication of principle in fixing it cannot safely be transformed into any positive statement of the upper and lower limits within which a sentence could properly have been imposed [27];

    (b)stating the bounds of an 'available range' of sentences is apt to mislead [28];

    (c)the conclusion that an error has (or has not) been made neither permits nor requires setting the bounds of the range of sentences within which the sentence should (or could) have fallen [28]; and

    (d)if an appellate court fixes a different sentence as a consequence of the sentence imposed by the primary judge having been set aside as manifestly excessive or manifestly inadequate, the fixing of that different sentence neither permits nor requires the resentencing court to determine the bounds of the range within which the sentence should fall [28].

1. So, the plurality in Barbaro enunciated the following propositions:

   (a)an appellate court can describe a manifestly excessive or manifestly inadequate sentence as falling outside the range of sentences which could have been imposed if proper principles had been applied [26];

   (b)an appellate court should not, however, either in determining a sentencing appeal or in resentencing an offender after allowing a sentencing appeal, fix or set the upper and lower limits (that is, state the bounds) of the range of sentences within which the particular offender should or could have been sentenced or will be resentenced.

2. In Dinsdale v The Queen,[12] Gleeson CJ and Hayne J observed:

   (a)Manifest excess in relation to a sentence is a conclusion.

   (b)A sentence is, or is not, unreasonable or plainly unjust; excess is, or is not, plainly apparent.

   (c)Manifest excess is a conclusion which does not depend upon attribution of identified specific error in the reasoning of the sentencing judge.

   (d)Frequently, the conclusion does not admit of amplification except by stating the respect in which the sentence is excessive.

   See also Carroll v The Queen[13] (Gummow, Hayne, Crennan, Kiefel & Bell JJ).

   [12] Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 [6].

   [13] Carroll v The Queen [2009] HCA 13; (2009) 83 ALJR 579 [7] - [8].

3. A statement by an appellate court that a sentence imposed by a primary judge is outside the range of sentences which could have been imposed if proper principles had been applied is, like a statement that the sentence imposed is manifestly excessive or manifestly inadequate, a conclusion.

4. This court has often stated its conclusion, in the context of a ground in a sentencing appeal that alleges manifest excess, manifest inadequacy or an infringement of the first limb of the totality principle, that the sentence is or is not (as the case may be) within the range of sentences open to the primary judge on a proper exercise of his or her discretion.  See, for example, the following recent decisions:

   (a)KND v The State of Western Australia (Buss P; Mazza & Mitchell JJA agreeing);[14]

   (b)Marchesano v The State of Western Australia (Buss P; Mazza & Mitchell JJA agreeing);[15]

   (c)Panda v The State of Western Australia (Buss P; Mazza & Mitchell JJA agreeing);[16]

   (d)Rinaldi v The State of Western Australia (Mazza & Mitchell JJA & Beech J);[17]

   (e)Churnside v The State of Western Australia (Martin CJ, Mazza & Mitchell JJA);[18]

   (f)Kirby v The State of Western Australia (Newnes, Mazza & Mitchell JJA);[19]

   (g)Lum v The State of Western Australia (Mazza & Mitchell JJA);[20]

   (h)Tapper v The State of Western Australia (Buss P; Mazza & Mitchell JJA agreeing);[21]

   (i)The State of Western Australia v WTG (Martin CJ; Newnes & Mitchell JJA agreeing);[22] and

   (j)Yaqubi v The State of Western Australia [No 2] (Buss P, Mazza & Mitchell JJA).[23]

   [14] KND v The State of Western Australia [2017] WASCA 36 [88] ‑ [89].

   [15] Marchesano v The State of Western Australia [2017] WASCA 177 [215].

   [16] Panda v The State of Western Australia [2017] WASCA 5 [117], [122].

   [17] Rinaldi v The State of Western Australia [2017] WASCA 48 [72].

   [18] Churnside v The State of Western Australia [2016] WASCA 146 [69].

   [19] Kirby v The State of Western Australia [2016] WASCA 199 [46].

   [20] Lum v The State of Western Australia [2016] WASCA 145 [20].

   [21] Tapper v The State of Western Australia [2016] WASCA 140 [76].

   [22] The State of Western Australia v WTG [2016] WASCA 175 [52].

   [23] Yaqubi v The State of Western Australia [No 2] [2016] WASCA 187 [52].

5. In this State, comparable cases, in the context of deciding whether a particular sentence is manifestly excessive or inadequate, comprise relevant decisions of this court and its predecessor, the Court of Criminal Appeal.  See Hili v The Queen.[24]

   [24] Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520 [56] (French CJ, Gummow, Hayne, Crennan, Kiefel & Bell JJ).

6. At all material times, the maximum penalty for the offence of:

   (a)failing to report forthwith, to the officer in charge of a police station, an incident occasioning death, contrary to s 56(1) read with s 56(2) of the RT Act, was 10 years' imprisonment and a motor driver's licence disqualification for a minimum of 1 year; and

   (b)failing to ensure assistance, contrary to s 54(2) read with s 54(3)(a) of the RT Act, was 20 years' imprisonment and a motor driver's licence disqualification for a minimum of 2 years.

7. The maximum penalty for the offence of:

   (a)failing to report forthwith, to the officer in charge of a police station, was increased significantly in 2008 from 12 months' imprisonment or a fine of $800 (for a first offence) or $1,600 (for a subsequent offence) or both and a motor driver's licence disqualification for a minimum of 1 year to 10 years' imprisonment and a motor driver's licence disqualification for a minimum of 1 year where the incident occasioned death or grievous bodily harm; and

   (b)failing to ensure assistance was also increased significantly in 2008 from 12 months' imprisonment or a fine of $2,500 or both and a motor driver's licence disqualification for such period as the court thinks fit to 20 years' imprisonment and a motor driver's licence disqualification for a minimum of 2 years where the incident occasioned the death of a person.

   See s 20 of the Road Traffic Amendment Act (No 2) 2007 (WA), which commenced on 15 March 2008. The amending Act repealed the existing s 54, s 55 and s 56 of the RT Act and inserted replacement s 54, s 55 and s 56 to re‑order and re‑organise the provisions so as to improve their clarity, in addition to increasing the applicable penalties.

8. The Minister stated in his second reading speech on the Bill which, upon enactment, became the Road Traffic Amendment Act (No 2) 2007, that the very significant increase in the maximum penalty for the failing to ensure assistance offence was designed to provide 'a strong deterrent [against] leaving the scene of a crash'.  See Western Australia, Parliamentary Debates, Legislative Assembly, 21 June 2007, p 3576.  Similarly, the explanatory memorandum on the Bill stated:

   These amendments are intended to act as a deterrent to a person who might otherwise elect to flee the scene of an accident in order to escape the possible conviction of a dangerous driving charge and imposition of the associated penalty.

9. The maximum penalty fixed by the Parliament for an offence demonstrates the Parliament's view of the gravity of the offence.  It must be taken into account in determining, in each particular case, the appropriate sentence.

10. If the Parliament, by a legislative amendment, increases the maximum penalty for an offence, the Parliament's new view of the gravity of the offence must be taken into account in deciding upon sentencing outcomes.  See R v Lawrence;[25] Heferen v The Queen;[26] Fisher v The Queen;[27] Herbert v The Queen;[28] Nguyen v The State of Western Australia.[29]  An increase in the maximum penalty is an indication that sentences for the offence in question should be increased.  See Muldrock v The Queen.[30]

    [25] R v Lawrence (1980) 32 ALR 72, 110 (Moffitt P).

    [26] Heferen v The Queen [1999] WASCA 81; (1999) 106 A Crim R 89 [35] (Anderson J; Pidgeon & Steytler JJ agreeing).

    [27] Fisher v The Queen [1999] WASCA 122 [13] ‑ [14] (Malcolm CJ; Ipp & Owen JJ agreeing).

    [28] Herbert v The Queen [2003] WASCA 61; (2003) 27 WAR 330 [7] (Malcolm CJ).

    [29] Nguyen v The State of Western Australia [2007] WASCA 114 [13] (Steytler P; McLure JA & Miller AJA agreeing).

    [30] Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 [31] (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel & Bell JJ).

11. Sentencing patterns for a particular offence with an increased maximum penalty will emerge over time as a result of the experience of the courts in sentencing offenders who have committed the offence in question with varying degrees of culpability.  See McLaughlin v The State of Western Australia.[31]

    [31] McLaughlin v The State of Western Australia [2012] WASCA 204 [64] (Buss JA; Mazza JA agreeing).

12. In Abfahr v The State of Western Australia,[32] Buss JA noted (McLure P & Mazza JA agreeing) that since the maximum penalties for the failing to report forthwith offence, contrary to s 56(1) read with s 56(2) of the RT Act, and the failing to ensure assistance offence, contrary to s 54(2) read with s 54(3)(a) of the RT Act, had been increased in 2008, sentencing ranges for those offences had not been established and that any cases dealing with sentences imposed before the increases in the maximum penalties were of little or no value for the purposes of comparison. See also Fazari v The State of Western Australia.[33]

    [32] Abfahr v The State of Western Australia [2013] WASCA 87 [68] ‑ [69].

    [33] Fazari v The State of Western Australia [2012] WASCA 176 [67] ‑ [69] (Buss JA; Murphy & Mazza JJA agreeing).

13. In Petersen v The State of Western Australia,[34] the appellant struck two pedestrians, Horace Bynder and Christine Ryan, while he was driving a motor vehicle on a two‑lane road. Both victims died at the scene. The appellant was convicted after trial of two counts of failing to ensure assistance, contrary to s 54(2) read with s 54(3)(a) of the RT Act, and one count of failing to report the incident forthwith, contrary to s 56(1) read with s 56(2) of the RT Act. The trial judge sentenced the appellant to 2 years 6 months' immediate imprisonment for each offence against s 54(2) read with s 54(3)(a) and 2 years' immediate imprisonment for the offence against s 56(1) read with s 56(2). His Honour imposed a total effective sentence of 4 years 6 months' immediate imprisonment and a total effective motor driver's licence disqualification of 4 years.

    [34] Petersen v The State of Western Australia [2016] WASCA 66; (2016) 50 WAR 45.

14. The salient facts of the offending in Petersen were these.  After the incident, the appellant stopped and parked his vehicle on the roadside verge about 60 m from Mr Bynder who was lying in the lane in which the appellant had been travelling at the time of the incident.  Ms Ryan was lying about 10 m behind Mr Bynder across the centre of the two‑lane road.

15. A witness, Catherine Gaunt, arrived at the scene.  She drove around the victims and parked behind the appellant's vehicle.  At the time the appellant was standing by his vehicle.  Ms Gaunt telephoned the police at 6.52 pm.

16. Another witness, Stephanie Muller, arrived at the scene in her vehicle.  The appellant flagged her down to stop.  She did so.  Ms Muller asked the appellant whether he had called an ambulance.  He replied that he had not.  Ms Muller then telephoned the 000 emergency number and requested that ambulances attend the scene.  Her telephone call commenced at 6.51 pm and lasted about 13 minutes.

17. Other people arrived at the scene while Ms Muller was on the telephone.  At the beginning of the telephone call, Ms Muller checked and felt that Ms Ryan had a pulse.  Someone else (not the appellant) said that Mr Bynder did not have a pulse.  The ambulance dispatcher asked Ms Muller to begin CPR on both victims.  That was done.  At the end of the telephone call, the ambulance dispatcher asked that CPR be continued until the ambulances arrived.

18. At 7.01 pm two police officers arrived at the scene.  One of them, Sergeant Walkerden, described the scene as chaos, with cars parked on both sides of the road, people endeavouring to stop traffic, other people conducting first aid and others merely observing. 

19. At about 7.22 pm, ambulances arrived at the scene.  The ambulance officers declared that both victims were dead.

20. The appellant left the scene before the police arrived at 7.01 pm.  Ms Gaunt saw the appellant drive away.

21. The appellant returned to the scene at 9.05 pm.  He informed the police that he was the driver of the vehicle that had struck the victims.  He had consumed alcohol before and after the incident.  It was not possible accurately to assess the quantity of alcohol in the appellant's blood at the time of the incident because he had consumed alcohol afterwards.

22. The trial judge found that the appellant knew, on the date of the incident, that his motor driver's licence would be suspended or cancelled soon as a result of a previous drink driving offence.  The appellant also knew or at least feared, when the incident occurred, that he was driving in excess of the legal blood alcohol limit.  His Honour found that the appellant left the scene of the incident out of fear for his own well‑being in relation to the legal consequences of his conduct in driving a motor vehicle while affected by alcohol.  As a result of his consuming more alcohol after the incident, the police could not make a reliable assessment of the appellant's blood alcohol level at the time of the incident.  His Honour was satisfied that the appellant had consumed alcohol after the incident for the purpose of preventing the police from obtaining admissible evidence as to his blood alcohol level at the time of the incident.  His Honour was also satisfied that the appellant's failure to remain at the scene and his action in removing his vehicle frustrated the police investigation.  The appellant had minimal insight into the offending and a tendency to minimise his responsibility for his previous drink‑driving offences.

23. The appellant's appeal against sentence was dismissed.  McLure P (Mazza JA agreeing) said in the course of dealing with the appellant's complaint that the individual sentences for the counts were manifestly excessive:

    There are a limited number of comparable cases.  The appellant relies on Fazari v The State of Western Australia [2012] WASCA 176, Abeyakoon v Brown [2011] WASCA 63 and Staley v Lopes [2005] WASCA 75. The last case was decided under the former statutory regime and is not relevantly comparable. A small number of cases does not establish a customary range. In any event, they do not support a claim that the sentences imposed on the appellant are manifestly excessive. In this case there were no mitigating factors of any significance and the aggravating factors place the appellant's conduct in the serious category. The sentencing judge's positive findings as to the appellant's motivation in leaving the scene and consuming more alcohol are significantly aggravating. I am satisfied these grounds do not have a reasonable prospect of succeeding. Accordingly, leave must be refused [71].

24. Mazza JA added the following observations with respect to the nature of the assistance which a motor vehicle driver must ensure a victim receives, as required by s 54(2) of the RT Act:

    First, the duty to ensure a victim receives all the assistance that is necessary and practicable in the circumstances is owed to each victim.  Thus, in cases where there is more than one victim, what is necessary or practicable in the circumstances may vary according to a victim's condition. 

    Second, the precise nature of any assistance a driver must ensure each victim receives is undefined, save that it includes (but is not restricted to) medical aid.  The assistance a driver must ensure each victim receives will depend upon the circumstances in each case and what is necessary and practicable, having regard to those circumstances.  So, for example, a driver may be obliged to ensure that an immobile victim on a roadway is not inadvertently injured by other road users [77] ‑ [78]. 

25. The other judge in Petersen, namely Corboy J, was not persuaded that the individual sentences were manifestly excessive having regard to the maximum penalty, the aggravating factors identified by the sentencing judge and the absence of any significant mitigating factors [190].

26. In Billing v The State of Western Australia,[35] the appellant pleaded guilty on the fast‑track system to one count of dangerous driving occasioning death, committed in circumstances of aggravation, contrary to s 59(1)(b) of the RT Act. The circumstance of aggravation was that the appellant exceeded the speed limit by more than 45 km per hour. The appellant also pleaded guilty to six other offences that were before the sentencing judge on a notice under s 32 of the Sentencing Act. The other offences comprised two charges of dangerous driving occasioning bodily harm, contrary to s 59A(1)(b) of the RT Act; failing to report an incident forthwith where the incident occasioned death or grievous bodily harm, contrary to s 56(1) read with s 56(2) of the RT Act; failing to ensure assistance to a victim where an incident occasioned bodily harm to the victim but not death or grievous bodily harm, contrary to s 54(2) read with s 54(3)(c) of the RT Act; driving while his motor driver's licence was suspended; and breach of a violence restraining order. All of the charges under the RT Act concerned the same incident.

    [35] Billing v The State of Western Australia [2017] WASCA 80.

27. The maximum penalty for the offence of failing to ensure assistance, contrary to s 54(2) read with s 54(3)(c) of the RT Act, was 10 years' imprisonment.

28. The sentencing judge imposed a sentence of 10 years' imprisonment for the count of aggravated dangerous driving occasioning death; 6 months' imprisonment (concurrent) for each charge of dangerous driving occasioning bodily harm; 12 months' imprisonment (concurrent) for the charge of failing to report forthwith; 12 months' imprisonment (concurrent) for the charge of failing to ensure assistance; and fines for each of the other charges.  The total effective term of imprisonment was 10 years' imprisonment.  His Honour also imposed a total effective motor driver's licence disqualification of 5 years 9 months.

29. The appellant appealed against the sentence of 10 years' imprisonment for the count of aggravated dangerous driving occasioning death. He did not challenge the sentences for the charges in the s 32 notice or the motor driver's licence disqualification.

30. This court (Mazza JA; Buss P & Newnes JA agreeing) allowed the appellant's appeal in part. In particular, the court set aside the sentence of 10 years' imprisonment for the count of aggravated dangerous driving occasioning death and substituted a sentence of 8 years' imprisonment. The court did not interfere with the individual sentences of imprisonment for the offences in the s 32 notice or the total effective motor driver's licence disqualification. However, the court decided that no different total effective sentence should be imposed. The individual sentences of imprisonment for the charges of dangerous driving occasioning bodily harm and the charge of failing to ensure assistance were ordered to be served cumulatively upon each other and cumulatively upon the new sentence for the count of aggravated dangerous driving occasioning death.

31. In the present case, the sentencing judge did not expressly state in his sentencing remarks that, in the application of the totality principle, he had achieved an appropriate total effective sentence of imprisonment (namely 9 years) by lowering one or both of the individual sentences of imprisonment for counts 7 and 8. We are satisfied that, on a fair reading of his sentencing remarks as a whole, no implication to that effect should be made. Our reasons are as follows. First, his Honour said that he would separately punish the respondent for his failure to ensure assistance and his failure to report the incident forthwith by the sentences that his Honour would impose on counts 7 and 8. His Honour would not take those matters into account, as aggravating factors, in deciding upon the individual sentences for counts 2, 4 and 6 [53], [87]. Secondly, his Honour said that, in the application of the totality principle, he would 'partially accumulate the sentences to be imposed on counts 2, 4 and 6' [103]. It is apparent, therefore, that his Honour decided to achieve what he considered was an appropriate total effective sentence of imprisonment by making some of the individual sentences of imprisonment partly concurrent rather than by lowering one or more of the individual sentences below what would otherwise be appropriate. Thirdly, his Honour did in fact (as he said he would) partially accumulate the individual sentences of imprisonment for counts 2, 4 and 6. Fourthly, although his Honour announced the total effective sentence of 9 years' imprisonment before he imposed the individual sentences, his Honour adopted that course '[f]or the benefit of counsel and for [the respondent's] benefit' because the manner in which the individual sentences were to be accumulated was 'quite complicated' [106]. Fifthly, the manner in which his Honour formulated and structured the individual sentences and the total effective sentence was explained in detail, in the course of comprehensive sentencing remarks, after his Honour had reserved his decision for five weeks. The formulation and structuring of the individual sentences and the total effective sentence were, no doubt, the product of substantial reflection. His Honour did not, through oversight, omit to state expressly that he had achieved an appropriate total effective sentence of imprisonment by lowering one or both of the individual sentences of imprisonment for counts 7 and 8.

1. The respondent's offending in relation to counts 7 and 8 was very serious.  Its egregious character is readily apparent from his Honour's unchallenged findings as to the facts and circumstances of those counts.  His Honour identified, as aggravating factors, the respondent's extraordinary callousness in walking away while the victims died and their bodies were incinerated; the respondent's conduct, upon arriving at his home, in showering and going to bed without making any attempt to report the incident; and the respondent's lies to the police that he had not used his vehicle and had not been injured.  The incident occurred at about 1.45 am.  Consequently, there were unlikely to be other people who could stop immediately and endeavour to assist the victims or who could call forthwith the police and the other emergency services.  The parlous situation in which the victims were placed, as a result of the respondent's aggravated dangerous driving, would have been obvious to the respondent.  He chose to ignore their plight and his legal duties.

2. The sentencing judge identified as mitigating factors the respondent's pleas of guilty, the absence of a criminal record for driving offences, his status as a loving family man with a good work ethic, his genuine remorse and deep distress for his offending and the responsibility he had taken for his criminal behaviour.

3. Although, as we have mentioned, his Honour appears to have accepted that the respondent had 'little memory of what occurred' [30], there was no mitigation in relation to counts 7 and 8 in the respondent's professed lack of recollection of the incident and its aftermath. See [26] above.

4. We have already referred to this court's decision in Petersen.  In that case the offender's challenge to the individual sentences, on the ground of manifest excess, failed.  His challenge to the total effective sentence also failed, but McLure P described the total effective sentence as 'towards the upper end of the sentencing range' [73] and Corboy J said that it was 'high' [191].  Some of the facts and circumstances of Petersen were more serious than in the present case and other facts and circumstances were less serious. 

5. The offender in Petersen did not have the mitigation of pleas of guilty.  His antecedents were worse than the respondent's.  In particular, the offender in Petersen had previous convictions for drink‑driving offences and he knew, on the date of the incident, that his motor driver's licence would be suspended or cancelled soon as a result of a previous drink‑driving offence.  As a consequence of his having left the scene and consumed more alcohol after the incident, the police could not make a reliable assessment of the offender's blood alcohol level at the time of the incident.  The removal of his vehicle after the incident frustrated the police investigation.  He had minimal insight into his offending.

6. On the other hand, the offender in Petersen did not leave the scene until after he had flagged down a passing motorist and after the emergency services had, to his knowledge, been called (by another person).  He eventually returned to the scene.  By contrast, the respondent left the scene immediately after the incident.  He did not return.  When the respondent departed no‑one else was at the scene to endeavour to assist the victims or to call the emergency services.  He lied to the police initially when questioned about the incident.

7. Petersen is the only case in which this court has considered sentences for the failing to ensure assistance offence in the context of the current maximum penalty of 20 years.  Fazari, Abfahr, Petersen and, to some extent, Billing are the only cases in which this court has considered sentences for the failing to report forthwith offence in the context of the current maximum penalty of 10 years' imprisonment.  Although some years have passed since the maximum penalties for the failing to ensure assistance offence and the failing to report forthwith offence were increased very significantly, customary sentencing standards for those offences under the current statutory regime have still not been established. 

8. In our opinion, each of:

   (a)the sentence of 1 year's imprisonment for count 7; and

   (b)the sentence of 2 years' imprisonment for count 8,

   was not commensurate with the seriousness of the offence, especially in the context of the current maximum penalty.  In our opinion, after having regard to the current maximum penalty, all relevant facts and circumstances and all relevant sentencing factors (including the aggravating factors and the mitigating factors identified by the sentencing judge in relation to counts 7 and 8), the length of the sentence of imprisonment for each of count 7 and count 8 was unreasonable or plainly unjust.  Those sentences could not have been imposed if proper principles had been applied.  Each sentence was manifestly inadequate.  That is the only conclusion reasonably open when each sentence is examined from the perspective of the current maximum penalty, the facts and circumstance of the offence, the paucity of cases which have been decided by this court under the current statutory regime, the absence of established customary sentencing standards, the place which the respondent's criminal conduct occupies on the scale of seriousness of each type of offence, the respondent's personal circumstances and the aggravating and mitigating factors.  Each sentence does not properly reflect the importance of general deterrence in the context of the very significant increase in the maximum penalty enacted by the Parliament in 2007.  The sentence imposed by his Honour for each of count 7 and count 8 was not merely 'at the lower end of the available range' or 'lenient'.  It was substantially outside the sentencing range open to his Honour on a proper exercise of his discretion.

9. Grounds 1 and 2 have been made out.

Ground 3:  the respondent's submissions

1. Counsel for the respondent submitted that the respondent held a valid motor driver's licence at the time of the incident.  He had held a licence for nearly 18 years.   The respondent did not have any prior convictions for traffic offences.  There was no evidence that he had previously driven in a manner that was dangerous to the public.  It was argued that the State had not demonstrated that any of the periods of disqualification was manifestly inadequate.

Ground 3:  its merits

1. Each offence of aggravated dangerous driving occasioning death required the imposition of a motor driver's licence disqualification for a minimum period of 2 years.  The failing to report forthwith offence required the imposition of a motor driver's licence disqualification for a minimum period of 1 year.  The failing to ensure assistance offence required the imposition of a motor driver's licence disqualification for a minimum period of 2 years. 

2. Although each of the offences carried a minimum period of disqualification, none of the offences carried a maximum period of disqualification.

3. Section 106A(1) of the RT Act provides, relevantly, that if the RT Act requires a court to disqualify an offender from holding or obtaining a driver's licence for a period not less than a minimum provided in relation to the offence concerned, 'the requirement is irreducible in mitigation and, irrespective of any sentence the court imposes on the offender, the court must disqualify the offender … for a period not less than that minimum period'. By s 106A(2) of the RT Act, s 106A(1) has effect despite any other written law. See also s 105(4) of the Sentencing Act.

4. Section 23A(1) of the Road Traffic (Authorisation to Drive) Act 2008 (WA) provides, relevantly, that if a person is convicted by a court of an offence under a 'road law' and, as a consequence, is disqualified from holding or obtaining a driver's licence, whether by an order of the court or operation of that law, the term of the disqualification does not elapse while the person is in custody serving any sentence of imprisonment. The term 'road law' in s 23A(1) includes the RT Act. See s 3(2) of the Road Traffic (Authorisation to Drive) Act read with s 4 of the Road Traffic (Administration) Act 2008 (WA).

5. In the present case, the sentencing judge imposed the minimum period of disqualification in relation to each offence.  His Honour ordered that the period of disqualification for count 7 (1 year) operate cumulatively upon the period of disqualification for count 8 (2 years), and that the periods of disqualification for counts 2, 4 and 6 (in each case, 2 years) operate concurrently with each other and concurrently with the period for count 8.

6. In Gray v The State of Western Australia,[36] Mazza JA (McLure P & Newnes JA agreeing) made these observations in relation to the determination by a sentencing judge of the length of a motor driver's licence disqualification:

   As I explained in Timbrell v The State of Western Australia [No 2] [2013] WASCA 269 [124] ‑ [125], the question of the length of a driver's licence disqualification is a matter of discretion to be decided having regard to the relevant statutory provisions in all of the circumstances of the case. The same considerations that informed the sentencing of the offender generally will inform the question of the length of any disqualification. Thus, any disqualification must be proportionate to the gravity of the offence and be no longer than is required to achieve the purposes of punishment, such as the protection of the community, deterrence, retribution and reform [140].

   [36] Gray v The State of Western Australia [2015] WASCA 108; (2015) 71 MVR 31.

7. We have reviewed a number of cases involving appeals against the length of motor driver's licence disqualifications.  In particular, we have had regard to Timbrell v The State of Western Australia;[37] Gray; Drage v The State of Western Australia;[38] Brewerton v The State of Western Australia;[39] and the cases referred to in those decisions.

   [37] Timbrell v The State of Western Australia [No 2] [2013] WASCA 269; (2013) 240 A Crim R 1.

   [38] Drage v The State of Western Australia [2015] WASCA 145; (2015) 71 MVR 555.

   [39] Brewerton v The State of Western Australia [2017] WASCA 191.

8. In our opinion, each of the individual periods of disqualification imposed for counts 2, 4, 6, 7 and 8 was unreasonable or plainly unjust.  Each individual period was substantially outside the range open to his Honour on a proper exercise of his discretion.  That is the only conclusion reasonably open having regard to:

   (a)his Honour's unchallenged finding that the aggravated dangerous driving offences were towards the upper end of seriousness of offending of its kind;

   (b)his Honour's assessment of the seriousness of the circumstances in which counts 7 and 8 were committed; in particular, his assessment that the respondent's failure to ensure assistance displayed 'extraordinary callousness' and was 'a very serious offence'; and

   (c)the factors which have caused us to conclude that the individual sentences of imprisonment for counts 7 and 8 were manifestly inadequate.

9. In other words, after taking into account all of the matters referred to by Mazza JA in Gray, in the context of each applicable minimum period of disqualification, the absence of any maximum period of disqualification, all the facts and circumstances of each offence (including the aggravating and mitigating factors) and the respondent's personal circumstances (including his previous driving history), we are satisfied that each of the individual periods of disqualification imposed by his Honour was manifestly inadequate.

10. Ground 3 has been made out.

Ground 4

1. It is necessary, as a consequence of grounds 1 and 2 having been made out in relation to counts 7 and 8, that the total effective sentence of imprisonment be set aside.  See The State of Western Australia v Cairns;[40] Sathitpittayayudh v The State of Western Australia.[41]

   [40] The State of Western Australia v Cairns [2006] WASCA 178 [42] (Buss JA).

   [41] Sathitpittayayudh v The State of Western Australia [2015] WASCA 152 [28] (Hall J; McLure P & Mazza JA agreeing).

2. It is unnecessary and inappropriate to consider whether the State's challenge to the total effective sentence of imprisonment would have been made out if its challenge to the individual sentences imposed for counts 7 and 8 had failed.

The result of the appeal and the resentencing of the respondent

1. We would grant leave to appeal on grounds 1, 2 and 3.

2. The appeal should be allowed on the basis of grounds 1, 2 and 3. 

3. Counsel for the respondent did not submit that the residual discretion under s 31(4) of the Criminal Appeals Act 2004 (WA) should be exercised. The respondent does not, of course, bear an onus to establish that the residual discretion should be exercised in his favour. Rather, it is incumbent on the State to negate any reason why the residual discretion of this court not to interfere should be exercised. See CMB v Attorney General (NSW).[42]

   [42] CMB v Attorney General (NSW) [2015] HCA 9; (2015) 256 CLR 346 [33] - [34] (French CJ & Gageler J), [66] (Kiefel, Bell & Keane JJ).

4. In our opinion, there is no basis, in the present case, for invoking the residual discretion.  The individual sentences of imprisonment for counts 7 and 8 were substantially less than the sentences open on a proper exercise of the sentencing discretion.  Appealable error has been very clearly established.  This court's intervention is necessary to ensure that proper sentencing standards are adopted and maintained for the relevant offences.

5. We are also of that opinion in relation to the individual periods of the motor driver's licence disqualifications imposed for counts 2, 4, 6, 7 and 8.

6. This court has the material necessary to resentence the respondent.

7. The individual sentences of imprisonment imposed by the sentencing judge for counts 7 and 8 should be set aside on the ground that the sentences are manifestly inadequate.  His Honour's orders for concurrency and cumulacy in relation to all of the sentences of imprisonment should also be set aside.  We would, solely to facilitate the application of the totality principle in the resentencing, reduce his Honour's sentence for count 2 from 6 years 6 months' imprisonment to 6 years' imprisonment.  His Honour's individual sentences of imprisonment for counts 4 and 6 should not be disturbed.

8. Like the sentencing judge, we would allow a discount of 12.5%, pursuant to s 9AA of the Sentencing Act, on the head sentences we would otherwise have imposed for counts 7 and 8, on account of the respondent's pleas of guilty.  This recognises the benefits to the State and its witnesses resulting from the pleas.

9. We have also reduced the sentences we would otherwise have imposed for counts 7 and 8 because of the other mitigating factors identified by his Honour.

10. After taking into account the maximum penalties, all relevant facts and circumstances and all relevant sentencing factors (including the aggravating factors and the mitigating factors identified by the sentencing judge in relation to counts 7 and 8), we would impose a sentence of 2 years' immediate imprisonment for count 7 and a sentence of 4 years' immediate imprisonment for count 8.

11. We would, in re‑exercising the sentencing discretion, impose a total effective term of imprisonment that is different from the total effective term imposed by his Honour.  This difference reflects our assessment of the overall criminality involved in all of the offences, viewed in their entirety, and after having regard to all relevant circumstances, including those referable to the respondent personally, and the total effective

sentences which have been imposed in cases with at least some features comparable to the respondent's overall offending.  The so‑called tinkering principle does not, of course, apply where this court's jurisdiction to resentence an offender is enlivened and the court re‑exercises the sentencing discretion.  See, for example, Sathitpittayayudh.

1. The new sentence for count 2 (6 years' imprisonment) is the head sentence.  The new sentence for count 8 (4 years' imprisonment) is to be served cumulatively upon the new sentence for count 2.  The other individual sentences of imprisonment are to be served concurrently with each other and concurrently with the accumulated sentences for counts 2 and 8.  The new total effective sentence of imprisonment is therefore 10 years' imprisonment.

2. The new sentence for count 2, the sentences for counts 4 and 6, the new sentence for count 7 and the new total effective sentence are to be taken to have taken effect on 29 September 2016.  The respondent remains eligible for parole.  He will be eligible to be considered for release on parole upon having served 8 years in custody calculated from 29 September 2016.

3. The individual periods of motor driver's licence disqualification imposed by the sentencing judge for counts 2, 4, 6, 7 and 8 should be set aside on the ground that the periods of disqualification are manifestly inadequate.  His Honour's orders for concurrency and cumulacy in relation to all of the periods of disqualification should also be set aside.

4. After taking into account each applicable minimum period of disqualification, the absence of any maximum period of disqualification, all the facts and circumstances of each offence (including the aggravating and mitigating factors) and the respondent's personal circumstances (including his previous driving history), we would impose a motor driver's licence disqualification of 4 years for each of counts 2, 4, 6 and 8 and a motor driver's licence disqualification of 2 years for count 7.

5. The new period of disqualification for count 7 (2 years) is to be served cumulatively upon the new period of disqualification for count 2 (4 years).  The other individual periods of disqualification are to be served concurrently with each other and concurrently with the new period of disqualification for count 2.  The new total effective motor driver's licence disqualification is therefore a period of 6 years.

1. MITCHELL JA:  I agree with the orders proposed by Buss P and Mazza JA.  I agree with their Honours' reasons for concluding that the sentences imposed for counts 7 and 8, and the periods of disqualification, are unreasonable or plainly unjust.  The outcome is not explicable by an application of the totality principle.  In the circumstances, those sentences and periods of disqualification could not have been imposed, otherwise than by application of the totality principle, without some misapplication of principle in the exercise of the sentencing discretion.  Error of principle is to be inferred in these circumstances.  I agree that the appeal must be allowed and the respondent resentenced on that basis. 

2. I add the following observations as to the expression of that conclusion in terms of whether a sentence or period of disqualification falls outside the range open to the sentencing judge on a proper exercise of his discretion. 

3. Inherent in the concept of an available range are upper and lower limits, transgression of which (even in a minor respect) demonstrates error. To say that a sentence falls outside the range open to a sentencing judge may suggest that the appellate court has defined an available range and finds error because the sentence imposed does not fall within that range. Such an approach would fail to adequately recognise the fundamental importance of the sentencing judge's discretion,[43] and that the consistency which is sought by appellate intervention is consistency in the application of relevant legal principles.[44]  It would also be inconsistent with the observation of the High Court in Barbaro v The Queen[45] that:

   the essentially negative proposition that a sentence is so wrong that there must have been some misapplication of principle in fixing it cannot safely be transformed into any positive statement of the upper and lower limits within which a sentence could properly have been imposed [27].

   [43] Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 [15].

   [44] R v Pham [2015] HCA 39; (2015) 256 CLR 550 [28], Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520 [49]; Director of Public Prosecutions (Vic) v Dalgliesh (a pseudonym) [2017] HCA 41; (2017) 91 ALJR 1063 [49].

   [45] Barbaro v The Queen [2014] HCA 2; (2014) 253 CLR 58 [26] ‑ [28]. See also the recent discussion by this court in Allen v The State of Western Australia [2017] WASCA 203 [62] ‑ [66].

1. An appellate court is not justified in interfering simply because the sentence falls outside what the court regards as an appropriate range.  Rather, as was observed in Pham:

   Appellate intervention on the ground of manifest excessiveness or inadequacy is not warranted unless, having regard to all of the relevant sentencing factors, including the degree to which the impugned sentence differs from sentences that have been imposed in comparable cases, the appellate court is driven to conclude that there must have been some misapplication of principle [28]. (citation omitted)

2. That approach to inferring an error of principle is not confined to the criminal law.  It is also reflected in the approach taken in considering whether legal error can be inferred from the result of the exercise of an administrative discretion.[46]  In either case, to adapt the observations of Dixon J in Avon Downs v Federal Commissioner of Taxation,[47] error is inferred where the outcome of the exercise of the discretionary power, on a full consideration of all the material before the decision-maker, is only capable of explanation on the ground of some legal misconception.  As Dixon J observed:

   If the result appears to be unreasonable on the supposition that he addressed himself to the right question, correctly applied the rules of law and took into account all the relevant considerations and no irrelevant considerations, then it may be a proper inference that it is a false supposition.  It is not necessary that you should be sure of the precise particular in which he has gone wrong.  It is enough that you can see that in some way he must have failed in the discharge of his exact function according to law (360).

   This approach reflects that taken in House v The King.[48] 

   [46] The analogy between inferring error in the exercise of judicial and administrative discretion was noted by Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 41 ‑ 42 and by the plurality in Minister for Immigration v Li [2013] HCA 18; (2013) 249 CLR 332 [68].

   [47] Avon Downs v Federal Commissioner of Taxation (1949) 78 CLR 353, 360.

   [48] House v The King (1936) 55 CLR 499, 505.

3. There is no legal error in referring to an available range, so long as such a phrase is used only to denote the process of inferring error described in cases such as Avon Downs and House.  Nor is there any legal error in saying that a sentence falls outside the range open to the sentencing judge on a proper exercise of his or her discretion, if that statement is only used to denote the conclusion reached after undertaking that process.  That is the sense in which I understand Buss P and Mazza JA have employed that formulation.  It is a formulation which has been used by this court to state that conclusion in many cases, including (as their Honours note) judgments in which I have participated. 

4. However, given the other connotations discussed above, it seems to me to be better not to express a conclusion as to manifest excess or manifest inadequacy by reference to whether a sentence falls outside the range open to the sentencing judge on a proper exercise of his or her discretion.  On further reflection, I consider that, if a label is to be given to the conclusion that error is to be inferred from the result of the exercise of a sentencing judge's discretion, it is better to employ one which does not invoke the concept of a range of available sentences.  For that reason, I would favour discontinuing the practice of stating the conclusion that a sentence is manifestly excessive or inadequate in terms of whether it falls outside the range open to the sentencing judge on a proper exercise of his or her discretion.

5. It having been established that the sentences imposed for counts 7 and 8, and the periods of disqualification, were manifestly inadequate, I agree with Buss P and Mazza JA as to the manner in which the respondent should be resentenced.