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Van Oyen v Kosovich

Van Oyen v Kosovich

Case [2025] WASC 364 2 September 2025

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   VAN OYEN -v- KOSOVICH [2025] WASC 364
CORAM:   PALMER J
HEARD:   14 AUGUST 2025
DELIVERED          :   2 SEPTEMBER 2025
FILE NO/S:   SJA 1015 of 2025
BETWEEN:   RACHEL LISA VAN OYEN
Appellant
AND
MICHAEL KOSOVICH
Respondent

ON APPEAL FROM:
For File No:   SJA 1015 of 2025
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE OLIVER
File Number            :   NO 1005/2024; NO 1006/2024

Catchwords:

Criminal law - Careless driving - Appeal against sentence - Manifestly excessive - Totality principle

Legislation:

Road Traffic Act 1974 (WA) s 59BA

Result:

Leave to appeal granted on grounds 2 and 3
Leave to appeal on ground 1 refused

Appeal allowed on grounds 2 and 3

Category: B

Representation:

Counsel:

Appellant	:	Mr G C R Yin & Ms F M Hugo
Respondent	:	Mr J M Misso & Ms A Jakupovic

Solicitors:

Appellant	:	Tehan Legal
Respondent	:	State Solicitor's Office

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

Abeyakoon v Brown [2011] WASCA 63; (2011) 211 A Crim R 388
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
Fogg v The State of Western Australia [2011] WASCA 11
Gray v The State of Western Australia [2015] WASCA 108
Hunt v Callaghan [2011] WASC 10
Jackman v Davison [2019] WASC 364
Kabambi v State of Western Australia [2019] WASCA 44
Lutumba v State of Western Australia [2013] WASCA 172
Rubin v The State of Western Australia [2016] WASCA 2
Skipworth v The State of Western Australia [2008] WASCA 64
The State of Western Australia v Formica [2016] WASCA 104
Timbrell v The State of Western Australia (No 2) [2013] WASCA 269; (2013) 240 A Crim R 1
Van Vught v Wilson [2020] WASC 85

PALMER J:

Introduction

At about 11.00 am on Sunday 18 February 2024, the appellant (Ms Van Oyen) was driving down the Great Eastern Highway near Carrabin on the way from Kalgoorlie to Perth. Ms Van Oyen closed her eyes momentarily while she was driving down a relatively straight section of road. Her car came off the road, she lost control and she crashed.
Ms Van Oyen's twin daughters, Macey and Riley, were sitting in the back seat of her car at the time. They were 7 years and 8 months old. Tragically, they were both thrown from the car and killed. Their loss has had a devastating impact on all those who knew and loved them.
There is no doubt that Ms Van Oyen is guilty of careless driving occasioning death contrary to s 59BA(1) of the Road Traffic Act 1974 (WA) (the Road Traffic Act). She pleaded guilty to two counts of that offence in the Magistrates Court at Northam before Magistrate Oliver.
This appeal concerns the sentence that she received following her conviction.
On 19 March 2025, Magistrate Oliver imposed a sentence of 8 months imprisonment in respect of each count, partially suspended after serving two months. Magistrate Oliver ordered that the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Van Oyen v Kosovich

Details

AGLC: Van Oyen v Kosovich [2025] WASC 364
Case: [2025] WASC 364
Decision Date: 2 SEPTEMBER 2025

CaseChat Overview and Summary

Van Oyen v Kosovich involved an appeal against a sentence imposed on the appellant for careless driving, a charge to which he had pleaded guilty. The appellant was sentenced to a six-month imprisonment term, wholly suspended after two months, and was also fined $1,500. The case was heard in the Court of Appeal of the Supreme Court of South Australia. The appellant argued that the sentence was manifestly excessive, and in breach of the totality principle, which requires that the aggregate punishment for multiple offences should not be disproportionately severe.

The court was required to consider whether the sentence was manifestly excessive and if it breached the totality principle. This involved assessing the severity of the offence, the appellant's culpability, and whether the sentence was proportionate to the crime committed. The court also needed to determine if the totality principle was correctly applied in the sentencing process.

The court found that the sentence was not manifestly excessive, despite the appellant's arguments. It held that the sentence was proportionate to the offence of careless driving, taking into account the appellant's culpability and the need for general deterrence. The court further determined that the totality principle was not breached, as the sentence was not disproportionate when considering the overall punishment for the offence. The appeal was subsequently dismissed.

Orders