Voysey v Whyatt
[2011] WASC 305
•11 NOVEMBER 2011
VOYSEY -v- WHYATT [2011] WASC 305
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2011] WASC 305 | |
| Case No: | SJA:1095/2011 | 3 OCTOBER 2011 | |
| Coram: | EM HEENAN J | 11/11/11 | |
| 27 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal granted Appeal allowed Appellant resentenced Sentence of imprisonment suspended | ||
| B | |||
| PDF Version |
| Parties: | RHYS DAVID EDWARD VOYSEY GARY WHYATT |
Catchwords: | Application for leave to appeal Appeal against sentence Conviction for dangerous driving causing grievous bodily harm in circumstances of aggravation Road Traffic Act 1974 (WA), s 59(1)(b) Application for leave to appeal against sentence 12 months' immediate imprisonment 2 years suspension of motor driver's licence Alleged inadmissible evidence received as part of victim impact statements No objection made at the time Youthful offender No significant prior record No permanent injury or disability to victim Significance of deterrence Whether sentence of imprisonment should be suspended |
Legislation: | Criminal Appeals Act 2004 (WA) Road Traffic Act 1974 (WA) Sentencing Act 1995 (WA) |
Case References: | Abeyakoon v Brown [2011] WASCA 63 Chan v The Queen (1989) 38 A Crim R 337 Collins v The State of Western Australia [2007] WASCA 108 Dinsdale v The Queen (2000) 202 CLR 321 Hunt v Callaghan [2011] WASC 10 Joyce v Gee [2010] WASC 76 Lam v The State of Western Australia [2010] WASCA 61 Long v Mayger (2004) 142 Crim R 289; [2004] WASCA 41 McLennan v Taylor (1966) 85 WN (Pt 1) (NSW) 525 Penn v Bibby (1866) LR 2 Ch App 127 Powell v Tickner [2010] WASCA 224 R v Brazier (1994) 75 A Crim R 404 R v Liddington (1997) 18 WAR 394 Renshaw v Director of Public Prosecutions (Cth) (1996) 67 SASR 139 Ritz Hotel Ltd v Charles of the Ritz Ltd (1988) 15 NSWLR 158 Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 Skipworth v The State of Western Australia [2008] WASCA 64 The State of Western Australia v Andela [2006] WASCA 77 Wilson v The State of Western Australia [2010] WASCA 82 Wiltshire v Mafi [2010] WASCA 111 Winwood v Brown [2011] WASC 123 Woods v Rogers; Ex parte Woods [1983] 2 Qd R 212 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Appellant
AND
GARY WHYATT
Respondent
ON APPEAL FROM:
For File No : SJA 1095 of 2011
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE E LANGDON
Citation : AR 6094 of 2011
Catchwords:
Application for leave to appeal - Appeal against sentence - Conviction for dangerous driving causing grievous bodily harm in circumstances of
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aggravation - Road Traffic Act 1974 (WA), s 59(1)(b) - Application for leave to appeal against sentence - 12 months' immediate imprisonment - 2 years suspension of motor driver's licence - Alleged inadmissible evidence received as part of victim impact statements - No objection made at the time - Youthful offender - No significant prior record - No permanent injury or disability to victim - Significance of deterrence - Whether sentence of imprisonment should be suspended
Legislation:
Criminal Appeals Act 2004 (WA)
Road Traffic Act 1974 (WA)
Sentencing Act 1995 (WA)
Result:
Leave to appeal granted
Appeal allowed
Appellant resentenced
Sentence of imprisonment suspended
Category: B
Representation:
Counsel:
Appellant : Mr J B Prior
Respondent : Mr M Seaman
Solicitors:
Appellant : Lewis Blyth & Hooper
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Abeyakoon v Brown [2011] WASCA 63
Chan v The Queen (1989) 38 A Crim R 337
Collins v The State of Western Australia [2007] WASCA 108
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Dinsdale v The Queen (2000) 202 CLR 321
Hunt v Callaghan [2011] WASC 10
Joyce v Gee [2010] WASC 76
Lam v The State of Western Australia [2010] WASCA 61
Long v Mayger (2004) 142 Crim R 289; [2004] WASCA 41
McLennan v Taylor (1966) 85 WN (Pt 1) (NSW) 525
Penn v Bibby (1866) LR 2 Ch App 127
Powell v Tickner [2010] WASCA 224
R v Brazier (1994) 75 A Crim R 404
R v Liddington (1997) 18 WAR 394
Renshaw v Director of Public Prosecutions (Cth) (1996) 67 SASR 139
Ritz Hotel Ltd v Charles of the Ritz Ltd (1988) 15 NSWLR 158
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Skipworth v The State of Western Australia [2008] WASCA 64
The State of Western Australia v Andela [2006] WASCA 77
Wilson v The State of Western Australia [2010] WASCA 82
Wiltshire v Mafi [2010] WASCA 111
Winwood v Brown [2011] WASC 123
Woods v Rogers; Ex parte Woods [1983] 2 Qd R 212
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1 EM HEENAN J: On 13 July 2011 Rhys David Edward Voysey was convicted on his plea of guilty of one count of dangerous driving causing grievous bodily harm in circumstances of aggravation on 11 June 2011. This offence is established by s 59(1)(b) of the Road Traffic Act 1974 (WA).
2 At that hearing the learned magistrate considered an application by the respondent that, because of the alleged seriousness of Mr Voysey's conduct, he should be committed for sentence to the District Court of Western Australian pursuant to s 5 of the Criminal Code (WA) rather than be dealt with summarily. For reasons then given the learned magistrate refused that application, ordered a pre-sentence report and remanded Mr Voysey for sentence on 18 August 2011. On that later date, after hearing detailed submissions in relation to the nature of the offence and a plea in mitigation from counsel for Mr Voysey, her Honour sentenced him to a term of 12 months' immediate imprisonment and ordered that his motor driver's licence be suspended for the minimum mandatory period of 2 years. By appeal notice dated 26 August 2011 Mr Voysey applied to this court for leave to appeal against that sentence and, on the same date, applied for bail pending the hearing of the application for leave to appeal and any appeal if leave were granted.
3 The application for leave to appeal and the application for bail pending appeal came on for hearing before Hall J on 31 August 2011. At that hearing counsel for the appellant also sought leave to adduce further evidence about the condition and prospects of recovery of the victim of the offence pursuant to s 14(5) of the Criminal Appeals Act 2004 (WA). In those circumstances Hall J directed that the application for leave to appeal should be listed for hearing on 3 October 2011 on the basis that if leave were granted the appeal itself would be heard at the same time. His Honour granted the appellant bail pending the hearing of the application for leave to appeal on the basis of a personal undertaking of $5,000 and a similar surety with reporting and residential conditions and prohibiting the appellant from driving any motor vehicle. The application for leave to adduce further evidence was adjourned to the hearing on 3 October 2011. Pursuant to those orders, Mr Voysey was released from prison on bail and has remained on bail since. His bail was renewed after the hearing on 3 October on similar terms until the decision of the court on his applications today.
4 Originally, the initiating appeal notice proposed only one ground of appeal. However, counsel for the appellant subsequently applied to add an additional ground of appeal as the first of what are now two proposed
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- grounds of appeal. Counsel for the respondent did not object to the application for leave to add an additional ground of appeal and, accordingly, I granted that leave. The proposed grounds of appeal, therefore, now are:
1. The learned sentencing Magistrate erred in law by taking into account the victim impact statement made by the victim's father.
Particulars
- (i) the victim did not provide a victim impact statement to the court;
(ii) the father of the victim provided two victim impact statements to the Armadale Magistrates Court;
(iii) both victim impact statements provided by the victim's father were inadmissible pursuant to the provisions of the Sentencing Act 1995.
2. The learned sentencing Magistrate erred in imposing a sentence that was manifestly excessive by not suspending the 12 month sentence of imprisonment.
The circumstances of the offence
6 The charge against Mr Voysey was:
That on 11 June 2011 at Gosnells he drove a motor vehicle on a road, namely Albany Highway, in circumstances of aggravation within the meaning of section 59B(3) of the Road Traffic Act 1974, in a manner that was, having regard to all the circumstances, dangerous to the public or to any person, and was involved in an incident occasioning grievous bodily harm to PJM contrary to section 59(1)(b) of the Road Traffic Act 1974.
7 The circumstances of aggravation alleged were that in the commission of the offence the appellant was driving at a high speed of 120 - 130 km per hour in a 60 km per hour speed zone. The actions and
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- events involving the commission of the offence were not described in detail by the learned magistrate because, of course, they had been put to the court by the prosecution in the course of submissions and were not challenged. It is desirable, nevertheless, to set these out.
8 On the evening of 10 June 2011 and in the early hours of the morning of 11 June 2011 Mr Voysey and two of his friends were all working at the Domino's pizza store situated at 2158 Albany Highway, Gosnells. Of the two friends, one was a 16-year-old boy who later travelled in the appellant's vehicle. The other was older, held a motor driver's licence and had his own car. Mr Voysey, the appellant, had been born on 27 March 1991 and was, therefore, aged 20 years at that date.
9 Throughout the course of their shift, these three discussed going to the McDonalds store situated at the corner of Albany Highway and Olga Road Maddington for something to eat when they finished their work that night. In doing so, Mr Voysey and the other driver discussed whether they would race their cars along Albany Highway with the finishing line 'being where the Armadale Rail line crosses the highway'. At the conclusion of their shift - approximately 2.42 am - Mr Voysey got into his car, a Toyota Tourer sedan, with the young 16-year-old in the front passenger seat. The other driver got into his Ford XR8 sedan.
10 As the two vehicles turned from Stalker Road to go in a northerly direction on Albany Highway both accelerated heavily. Mr Voysey's vehicle was in the left lane and the second vehicle was in the right lane. The second vehicle was slightly in front as they both passed the Gosnells Hotel and continued north across the bridge. Mr Voysey accelerated to a speed of approximately 120 - 130 km per hour (self-claimed) as he approached the left-hand bend near Gosnells Road West with the other vehicle to his immediate right. Mr Voysey lost control of his vehicle which slid sideways into the left-hand curb near Prosser Toyota, across the grass verge, and collided with a garden bed, metal bollard, a light pole, an advertising sign and a Toyota Hilux utility. This Hilux utility was pushed into a second Toyota Hilux which was in turn pushed into a third vehicle, a Ford Ranger, which in turn struck a fourth vehicle, a Holden Rodeo. Mr Voysey's car came to rest on Albany Highway and the second vehicle managed to avoid collision with it.
11 As a result of the crash the 16-year-old passenger received a fracture to the base of the skull and bleeding in the brain, injuries which were deemed to constitute grievous bodily harm. Mr Voysey received only minor injuries (bruising from the seat belt and general soreness).
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- Mr Voysey stayed at the scene and immediately called an ambulance and spoke to police on their arrival. He was later interviewed at Cannington police station where he made a full admission of the offence.
12 The speed limit on Albany Highway for part of the distance travelled was 60 km per hour and, nearer to the point of collision, 70 km per hour. By exceeding the speed limit by 45 km or more the offence was committed in circumstances of aggravation under s 59B(3) of the Road Traffic Act.
13 In short, Mr Voysey had a history of a good education, established employment, and the prospect of a significant career as an aviation pilot ahead of him. He was living at home with his parents and had only one minor previous conviction which was not regarded as material by the prosecution or by her Honour. There was no involvement of alcohol or drugs in the commission of the offence and there is no suggestion that the appellant had any involvement with illicit substances.
14 A statement from a medical practitioner at Royal Perth Hospital who examined the 16-year-old passenger on 21 June 2011 (10 days after the accident) showed that the doctor noted the following injuries:
• extensive skull fracture;
• large bilateral parietal subdural haematoma;
• occipital condyle fracture;
• laceration to the left aspect of mouth.
15 In the opinion of this doctor the nature of the injuries was such that they endangered, or were likely to endanger, life but were not of such a nature as to cause, or be likely to case, permanent injury to health.
16 In the victim impact statements (the admissibility of which is challenged by the appellant) it was stated that the 16-year-old passenger spent 10 days in hospital and had since been undergoing regular physiotherapy and occupational therapy. In sentencing the appellant, her Honour found, based upon the victim impact statements, that the 16-year-old passenger had required 24 hour a day supervision at home because of a blood clot on his brain; that he had suffered daily headaches; and that there had been some loss of mobility. Her Honour accepted that the victim needed regular physiotherapy and occupational therapy and was recorded by his family as having been unable to play sport, attend
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- school, attend work or go out with his friends. Her Honour found that while he had not sustained permanent injury to his health, he still had a lot of painful recovery to endure and that he was not able currently to do all the usual enjoyable activities that a teenager would do.
17 There were two victim impact statements which had been filed in the Magistrates Court at Armadale and which were referred to her Honour and read at the hearings on 13 July 2011 and 18 August 2011. Both statements were dated 9 July 2011 and were by the father of the 16-year-old passenger. The longer of the two statements describes the injuries suffered by his son; the nature of his treatment at Royal Perth Hospital; and his behaviour, exercises and therapy upon his discharge from hospital - all in temperate and objective terms. It includes statements that the boy's father and other members of the family had naturally been very anxious and distressed at the news and circumstances of the accident and ensuing injury and by seeing their son struggle to cope with his recovery. This statement also made reference to some, fortunately moderate, financial impacts on the family because of the event but also pointed out that the 16-year-old victim was still suffering financially through being unable to work.
18 The second and shorter of these two victim impact statements was described as a 'family sentencing statement'. If I may say so, with respect, this shows remarkable and commendable maturity, objectivity and balance. It is addressed to the presiding magistrate at the Armadale Magistrates Court and is written on behalf of the immediate family of the victim. It says that the family's son and brother was seriously injured in a car accident which resulted in the charge before the court. It goes on to record that after the family had met with the appellant, Rhys Voysey, and spoken to people that he knew, the family of the victim would like to state that they would not like to see him imprisoned for this offence. This victim impact statement says that the victim's family believe that Mr Voysey is truly remorseful and will have to live with the memory of what he has done for the rest of his life and that, in their view, sending him to prison is not going to make him any wiser about the severity of his actions but that the family believes that a community service order served in a rehabilitation facility would make him more aware of the possible consequences of his actions. It concludes with the statement that '[w]hilst we would never assume to try and tell you what decision you should make, we sincerely ask that you take into account our family's wishes when making your decision'.
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19 As already remarked, these statements show great restraint, tolerance and a high sense of responsibility by the victim's family. There is nothing in either of them which could be regarded as inflammatory, inaccurate or unbalanced. They are both compassionate in their restraint and, on any reading, are favourable to the appellant. I am satisfied that there is nothing in either of the statements which could be regarded as prejudicial to the appellant. They were both before her Honour on 13 July 2011 and 18 August 2011 and were referred to on those occasions. No objection was made to the receipt of those statements at the sentencing hearing but their admissibility is now challenged (belatedly) in the proposed grounds of appeal, as already noted.
20 The admissibility of such victim impact statements is the subject of s 24 and s 25 of the Sentencing Act 1995 (WA) which provide:
24. Victim impact statement, who may give
(1) A victim, or a person who may do so under subsection (2), may give a victim impact statement to a court to assist the court in determining the proper sentence for the offender.
(2) If because of age, disability or any other reason a victim is personally incapable of giving a victim impact statement, another person may give it on the victim's behalf if the court is satisfied that it is appropriate for that other person to do so.
25. Victim impact statement, content of
(1) A victim impact statement is a written or oral statement that -
(a) gives particulars of any injury, loss, or damage suffered by the victim as a direct result of the offence; and
(b) describes the effects on the victim of the commission of the offence.
(2) A victim impact statement is not to address the way in which or the extent to which the offender ought to be sentenced.
(3) A victim impact statement may be accompanied by a report by any person who has treated the victim in connection with the effects on the victim of the commission of the offence.
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21 The term 'victim', at least in so far as it is used in Part 3 of the Act (which includes s 24 and s 25), is defined as follows:
victim, in relation to an offence, means -
(a) a person who, or body that, has suffered injury, loss or damage as a direct result of the offence, whether or not that injury, loss or damage was reasonably foreseeable by the offender;
(b) where the offence results in a death, any member of the immediate family of the deceased.
22 The objection sought to be raised at this hearing to the reliance by the learned magistrate on the victim impact statements is that both were made by the victim's father rather than by the victim himself and in circumstances where there was no evidence to establish, nor concession given, that this victim was, because of age, disability or any other reason, personally incapable of giving a victim impact statement (s 24(2)). In addition, objection is raised because the second and shorter of the victim impact statements purported to address the way in which, or the extent to which, the offender ought to be sentenced contrary to s 25(2) of the Sentencing Act - notwithstanding, as I have already remarked, that the observations in this regard were entirely favourable to the appellant.
First ground of appeal
23 I am satisfied that there has been an arguable error of law in the procedure adopted and the matters relied upon by the learned magistrate when sentencing this offender. That is sufficient to grant leave to appeal in relation to the first proposed ground of appeal: Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473, although this does not mean that the ground of appeal necessarily succeeds, rather that it gives rise to a reasonably arguable point.
24 While conceding that the victim impact statements of the victim's father were admitted into evidence contrary to s 24 of the Sentencing Act, counsel for the respondent submits that this error did not cause any substantial miscarriage of justice, and invokes the proviso at s 14(2) of the Criminal Appeals Act submitting that this proviso applies to sentencing appeals where the error in question would not have led to any reduction in sentence: Joyce v Gee [2010] WASC 76 [34]. Counsel for the respondent submits that the question to be addressed is whether, without the erroneously admitted information, the appellant's offending still warranted an immediate term of imprisonment of 12 months.
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25 With due respect, I consider that there is an element of artificiality about the challenge to the reception and use of the victim impact statements in this case. By s 15 of the Sentencing Act, the court sentencing an offender may inform itself in any way it thinks fit when deciding upon the proper sentence to be imposed or when imposing an order in addition to sentence. The Sentencing Act then goes on to address specifically certain means by which a court may be informed about the offender or the circumstances of the offence or other relevant matters. By s 20 - s 22 the Act makes reference to the preparation and use of a pre-sentence report; by s 23 to the means by which the offender's time in custody may be obtained; s 24 - s 26 dealing with victim impact statements have already been mentioned; and s 27 - s 30 deal with the preparation and use of mediation reports.
26 However, these are not the only ways in which information may be received by the court for use on sentencing. Evidence or information in relation to sentencing may be received by a court in the same way as evidence may be received at a trial including, if there is no objection, the reception of inadmissible evidence such as hearsay or character evidence from referees without the referees being called and examined on oath or affirmation and subjected to cross-examination. Fundamental principles, however, include those that any such evidence or information to be used in relation to sentencing must be disclosed to the offender and he or she be given an opportunity to consider that material and whether or not it is to be challenged. An offender may challenge any such evidence on the basis that it is inadmissible or, even if admissible, if the offender contests the accuracy or completeness of the evidence in whole or in part. In such cases where objection is made the proposed evidence, if not admissible, must be excluded. If admissible evidence which is challenged for accuracy is sought to be relied upon it must be called in the ordinary way and the offender given an opportunity to challenge it and adduce such evidence as may be material to refute or qualify the burden of the evidence which is being propounded. These rules apply whether or not the evidence in sentencing is to be led for the prosecution or the offender. In practice, many concessions occur in which material, either not strictly admissible, or admissible only after formal proof, is received without objection on the basis that there is no issue as to the accuracy or relevance of it.
27 In this present case, as I have already stated, the victim impact statements from the victim's father were received without objection, and in those circumstances I consider that the proper conclusion to be drawn is that any existing grounds to resist the use of these materials have been
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- waived. If evidence is accepted without objection, even if inadmissible, then the usual rule is that any grounds for objections have been waived.
28 It is accepted that it is the duty of counsel to object promptly to the proposed reception of inadmissible evidence or to a question which may elicit an inadmissible answer: Woods v Rogers; Ex parte Woods [1983] 2 Qd R 212, 217. It has also been held that if there is no such objection, and the admissible evidence has been received, that can not be the subject of complaint on appeal: Penn v Bibby (1866) LR 2 Ch App 127, 137 - 138. The status of evidence to which objection might have been taken on grounds of inadmissibility but which was received in the absence of objection is discussed in Cross on Evidence (8th Aust ed, 2010) [1645] - [1680]. The area is complex but the authorities establish that in certain circumstances, if the reception of the evidence is positively precluded by law, but is nonetheless received without objection there may only be a limited use, and sometimes no use, made of the material: see Ritz Hotel Ltd v Charles of the Ritz Ltd (1988) 15 NSWLR 158, 170 (McLelland J). These rules can produce anomalies but the approach nevertheless has been endorsed and has some justifications: see McLennan v Taylor (1966) 85 WN (Pt 1) (NSW) 525, 528 (FC). In that case Walsh J observed:
I think that a failure to object may carry more extensive consequences as to the use which can afterwards be made to the document, if it is clear that an objection would have been sustained, than such a failure would carry if the document is admissible, although only upon some limited ground or for some limited purpose. In the former case, the failure to object may more readily be taken as an assent to the full use of the document for whatever probative value it may have.
29 These rules are of considerable practical importance in the present case because of two factors. First, the content of the two victim impact statements was, generally speaking, favourable to the appellant, especially so in relation to the moderation expressed by the victim's family with regard to the suitability of a non-custodial sentence. There is every reason, therefore, to infer that the absence of objection to the use of those statements may have occurred for tactical reasons in the hope of procuring advantage for the appellant by having the 'inadmissible' material before the court. If that were the case then the failure to object would amount to a plain case of waiver of the right to object and, at least in this instance, should not be permitted to be raised as a basis for impugning the sentencing decision on appeal. Second, the evidence from the father of the victim about the effects of the accident upon his son and the family
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- and the distress which the slow period of recuperation caused was relevant and, therefore, admissible if it had been properly adduced.
30 In other words, if objection had been taken to the tender of either or both of the victim impact statements because of the provisions of s 24 and s 25 of the Sentencing Act, several courses would have been open to the prosecution. There may have been a basis for permitting the father to give the victim impact statement on behalf of the victim under s 24(2) if there was some reason the victim was personally incapable of giving the statement. That alternative was not investigated and it is now impossible to say whether or not that might have been the case. If it had not been the case, it would have been possible to call the victim's father to give evidence in person on oath or affirmation about the effects of the accident upon his son and the family and to be available for cross-examination, if required, on that evidence. That would have permitted most if not all of the longer victim impact statement to be the subject of oral evidence to the court. Had this procedure been followed it would still not have been possible to adduce evidence from the victim's father about the sentence penalty or disposition which the court should impose because to do so would risk imposing on the court's own responsibility, but evidence of a moderate approach, as adopted by the family, would probably have been relevant and admissible. In the absence of any objection and a ruling by the court that the one or both of the victim impact statements was not admissible, the opportunity of supplementing that evidence by evidence in admissible form was not investigated or utilised. That being the case there is no reason now to adopt an approach which was not sought on behalf of the appellant at the time when objection might have been made.
31 Finally, on this area of the case, there is no suggestion that the information contained in the two victim impact statements is wrong or in any way misleading. Counsel for the appellant accepts that the contents of the two victim impact statements contain an accurate account, up until the date they were made, of events relating to the victim's injuries and recovery. He does submit, however, that there is subsequent information to establish that the victim has made, or will make, a complete recovery and that any anxieties or apprehensions about this which might have been entertained at the time can now be put aside. That material is the subject of an application to adduce further evidence under s 14(5) of the Criminal Appeals Act which has been acceded to by counsel for the respondent and which is described later in these reasons. It follows, therefore, that with this additional evidence now available, this court can now consider the whole of the available evidence bearing on the victim's present health and state of recovery. There is no reason to exclude any part of the victim
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- impact statements on the basis that, since those statements were made, the victim has made a good and almost complete recovery.
32 It follows from this that even if the content of one or both of the victim impact statements had been wrongly received into evidence, which I am satisfied was not the case in the absence of any objection being made at the time, no prejudice or miscarriage of justice could have resulted from any use made by the learned magistrate of those materials. It is evident that her Honour did consider those materials and apparently treated them as a source of the nature and extent and effect of the injury upon the victim in her reasons for decision. I am satisfied that there was no error or miscarriage of justice resulting from that being done.
33 Accordingly, while I will give leave to appeal upon the first proposed ground of appeal raising the question of admissibility and use of the victim impact statements, I would not uphold that ground.
Two stages of sentencing hearing
34 As already noted, the learned magistrate heard submissions from the parties on two occasions, the first on 13 July 2011 and the second on 18 August 2011 when dealing with the appellant's plea of guilty. On the first occasion, when the appellant entered his plea of guilty, the prosecution submitted that, rather than being dealt with summarily, the appellant should be committed for sentence to the District Court of Western Australia under s 5 of the Criminal Code (WA) because, so the prosecution submitted, the offence was so serious that the limited sentencing powers of the Magistrates Court available for summary disposition of the offence were inadequate and the more extensive sentencing powers available to the District Court should be invoked.
35 The essential basis for the prosecution's application in this respect appears to have been the pre-agreement between the drivers to engage in racing their cars upon Albany Highway, the length and duration of the race, and the very high speeds alleged to have been reached in the course of the race. The consideration of this application before the Magistrates Court involved quite lengthy submissions dealing with the particulars of this offence, the alleged role of the appellant, and a consideration of several authorities bearing on sentences imposed by the superior courts for this and comparable offences. Her Honour then gave comprehensive oral reasons for refusing the application made by the prosecution under s 5 of the Criminal Code to commit the appellant for sentence to the District Court. In doing so her Honour examined and discussed the relevant authorities. There is no suggestion that there was any error made
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- by her Honour in the approach which she adopted nor in the decision ultimately reached. In disposing of the matter her Honour observed (ts 22, 13 July 2011):
I agree with the submissions by [counsel for the appellant] that clearly the practice of sentencing is a balancing act. It is always a balancing act between those competing factors and it is my view that there is nothing before me at this point where I regard that the matter is so serious that it can't be adequately dealt with in a court of summary jurisdiction, such as this Magistrates Court. I won't repeat what I've said about the principles in Wiltshire v Mafi [2010] WASCA 111 but I'm having regard obviously to that factor as well and there is really nothing else in the submissions before me that persuade me that it is the interests of justice that the matter proceed on indictment in the District Court. Essentially it is for those reasons that the section 5 application is refused.
37 Her Honour observed, in her ultimate reasons for decision when sentencing, that:
the degree of culpability in my assessment is high in the context of this offence occurring as a result of a planned drag race with the co-accused in and around a built-up area in Gosnells reaching an estimated speed of 120 - 130 km per hour in a 60 km per hour speed zone, at least at one stage of the race. The race went on over a considerable distance. …
38 I am satisfied that her Honour was referring to her view of the culpability of the offender rather than implying that the offence, taken in its entirety, was within the category of the worst or most serious form of offences of this kind. In my respectful view her Honour was entirely justified in taking the view which she did about the culpability of the offender but, having regard to her earlier decision on the Criminal Code s 5 application, there is no basis to impute to her any actual or implied
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- assumption that this particular offence was one within the category of the worst kind of offences of this nature.
Co-offender
39 The driver of the second vehicle involved in the race was also charged with offences arising from this incident. In the proceedings before her Honour on 13 July 2011 he was named and referred to as the co-accused. However, there are no precise details of the actual charge or charges laid against that co-accused. It was acknowledged before me that he was not charged with dangerous driving causing grievous bodily harm - ostensibly because he did not directly cause the injury to the passenger in the appellant's vehicle. It also appears that any charge or charges against that co-accused had not been dealt with by the time the appellant had been sentenced and there is no evidence before this court as to whether any such charges have yet been dealt with or, if so, with what result. I do not consider it necessary or appropriate to enquire further about this aspect of the matter as no issue is sought to be raised about parity or comparability of sentences imposed on different offenders engaged in the same or similar unlawful enterprise.
The pre-sentence report
40 The use of a pre-sentence report to assist the court in sentencing an offender is expressly recognised by s 20(1) of the Sentencing Act and provisions relating to the contents of the report are to be found in s 22. As earlier noted her Honour ordered a pre-sentence report in relation to this offender at the hearing on 13 July 2011 and the report was available and considered by her Honour at the sentencing on 18 August 2011. It disclosed that the applicant was born on 27 March 1991 and was, therefore, at the time of the offence and the sentencing aged 20 years. He was single and by occupation was a storeman. From this report it emerged that the young passenger and victim of the offence was well known to the applicant and that they had often socialised after work. The author was satisfied that Mr Voysey displayed appropriate remorse for his actions. Mr Voysey had not previously been subject to any juvenile or adult community based disposition and had no other outstanding matters listed. He had been convicted in the Fremantle Magistrates Court on 19 April 2011 for an offence of damaging property contrary to s 445 of the Criminal Code on 6 March 2011. For that offence he was fined $500 and a spent conviction order was made. The offence was committed when Mr Voysey had been evicted from a nightclub and, in the process, had punched a window causing it to smash.
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41 The appellant's family background is that he had been born in Karratha and is one of two children of his parents and living with them. The family came to Perth when he was only two and since then have lived in the Armadale area. He described having a good childhood and it emerged that he had a very promising swimming career, had done well at his studies and had undertaken a course of flying lessons with a view, eventually, to obtaining a pilot's licence. Although not married he had a strong relationship with his girlfriend of four years and had hopes that that would develop. They both lived with their respective parents and both sets of families get along very well with each other. He completed a formal education at year 12 and then commenced university studying science but after six months left university to pursue his ambition of becoming a pilot. It was while he was at university that he began working part time at Dominos Pizza Bar on a casual basis but on leaving education he commenced working full time to provide funds for his flying lessons. In the process he worked his way up from being a fast food preparer to the store manager. It was on the night of the offence that he resigned as store manager because he had become dissatisfied with the work, feeling that it did not offer any real prospects of advancement.
42 At the time of the pre-sentence report Voysey was working as a full-time storeman and earning $700 per week. He had the resources to meet his obligations and to pay the fine.
43 There is no suggestion that alcohol played any role in the commission of this offence. Mr Voysey described that he would drink alcohol only socially - usually after a swimming competition. He had no issues with illicit substances. The author of the pre-sentence report confirmed this by enquiry from his mother and partner. His health is sound.
44 With regard to risk assessment the author of the pre-sentence report considered that Mr Voysey had stable accommodation, full time employment and future plans to obtain his pilot's licence and a supportive family. Nevertheless, the instant offending and his previous offence pointed to him having the potential for acting in a reckless manner without giving full thought to the consequences of his actions. Having said that, the author of the report concluded that the impact of his latest offence would seem to have had a salutary effect upon the applicant and appears likely to act as a deterrent to further offending. The author considered that in these circumstances the need for interventions at this point would appear to be limited. The recommendation in the pre-sentence report was that the applicant presented as a responsible
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- young man who recognises his obligation and acknowledges that his behaviour was not acceptable. As already mentioned, he had never been the subject to a community based disposition and only has one prior offence listed on his court history.
The sentencing proposed
45 In the course of the sentencing process the police prosecutor and counsel for the appellant both acknowledged that this was a serious offence in the sense that it involved dangerous driving at high speed in a built up area as a result of a deliberate pre-planned agreement to race between the two drivers. The appellant had driven at a very high speed in a built up area for quite some distance and for some time. It was his driving which caused him to lose control of the vehicle and run off the road causing damage to a number of structures and to four other vehicles. In many respects it was most fortunate that more serious injury was not caused to the victim, or to the appellant himself. Possibly the fact that this occurred in the early hours of the morning meant that the risk of injury to other road users or members of the public was reduced but, having regard to the nature of the driving, it is also fortunate that no innocent third parties were involved or injured.
46 Because of this the police prosecutor submitted that the gravity of the offence, the degree of culpability and the need for deterrence produced a situation where the only appropriate penalty should be a sentence of imprisonment and that immediate imprisonment rather than a suspended sentence was warranted. Counsel for the appellant accepted that, in all the circumstances, a sentence of imprisonment was warranted but submitted that, having regard to the personal factors of the appellant, the degree of remorse, his youth and comparatively good character and, significantly, the fact that no permanent injury or disability was caused to the victim meant that any sentence of imprisonment imposed should be suspended. Accordingly, the major issue of contention on the sentencing was whether or not a sentence of imprisonment, accepted as being appropriate, should or should not be suspended.
47 After hearing the submissions her Honour adjourned briefly before returning to give detailed oral reasons for the sentence which she imposed. As already mentioned her Honour stressed that the degree of culpability of the applicant was high in the context of this offence. I have already mentioned her Honour's reference to the effect of the offence upon the victim. Her Honour acknowledged a number of mitigating factors namely; the plea of guilty at the earliest opportunity; clear and obvious
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- remorse; and a very minimal prior criminal history. Her Honour referred to the appellant's youth and his good family antecedents and acknowledged that he had acted out of character when committing this offence. Her Honour acknowledged that the appellant was well educated, had a supportive family and was in full time employment. She mentioned that he had been a lifesaver at the local aquatic centre for several years and was leading a fulfilling life. Her Honour said that in this case personal deterrence was not an important factor but that the serious circumstances of the offence and general deterrence were important factors to be considered in relation to sentencing. Her Honour concluded that the authorities supported her view that a sentence of imprisonment was warranted, and determined upon 12 months. On the vital question of whether or not the sentence should be suspended her Honour said:
In considering whether that sentence should be suspended, I have regard to your remorse, your good antecedents and your prospects for rehabilitation. However, in a serious case such as this, there is a strong need for general deterrence and your personal circumstances are less important, so I have determined that the sentence ought to be served.
48 The second proposed ground of appeal is to the effect that the sentence of immediate imprisonment was grossly excessive and that in the circumstances any sentence of imprisonment ought to have been suspended. This is the real focus of the appeal and there is a point which I considered to be arguable and in respect of which leave to appeal should be granted.
Submissions on the appeal
49 The case in support of the appeal on the second ground does not seek to challenge the imposition of a sentence of imprisonment for 12 months but rather contends that while such a sentence of imprisonment was justified it should, in all the circumstances having regard to established principles, have been suspended.
50 Counsel for the respondent submitted that it had been established in Abeyakoon v Brown [2011] WASCA 63 [36] - [38] that in cases of dangerous driving it is necessary for the court imposing sentence to weigh amongst other things the consequences of the offence, that is the degree of injury caused by the offending, along with the degree of culpability on the part of the offender. In Abeyakoon the consequences of the offending were significant, with one of the victims suffering serious permanent injury while the offender's culpability was, conversely, low, resulting
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- from momentary inattention. In Abeyakoon at [38] the court made it clear that there was a large variation in circumstances in this type of case which militated against any sentencing tariff but nevertheless that the offence was so serious that imprisonment rather than a lesser sentence ought be imposed.
51 In addressing the question of general deterrence counsel for the respondent submitted that her Honour had found that in this case the circumstances of personal deterrence were not important factors but that general deterrence was. In Winwood v Brown [2011] WASC 123 [56] the need for general deterrence in dangerous driving cases was stressed and it was explained that there is, therefore, a reduction in the weight given to matters personal to the offender: Powell v Tickner [2010] WASCA 224 [11].
52 Counsel for the respondent submitted that in the concluding sentencing remarks the learned magistrate addressed the issue of a suspended sentence and, by doing so, had regard to the second stage considerations set out in Dinsdale v The Queen (2000) 202 CLR 321 and also contained in Collins v The State of Western Australia [2007] WASCA 108 [12] - [18] revisiting issues of remorse, good antecedents and the prospects for rehabilitation. Further, in oral submissions, counsel for the respondent submitted that general experience revealed that cases of dangerous driving causing death or dangerous driving causing grievous bodily harm very often involved youthful drivers of comparatively good character but that the risk to the public, and the consequences of such offending, meant that the significance usually granted to youth as a mitigating factor was inevitably less because of the need for general deterrence. Finally, counsel for the respondent submitted that in the event that the learned magistrate might be found to have fallen into error on sentencing there should still be a term of immediate imprisonment but possibly for a shorter period having regard to the need for general deterrence in such cases.
New evidence
53 The further evidence which the appellant sought leave to introduce pursuant to s 14(5) of the Criminal Appeals Act comprises an affidavit from the appellant's solicitor sworn 27 September 2011 with an annexed statutory declaration of the victim, the 16-year-old passenger in the appellant's car on the night of the accident. The basis for the application is the submission that these materials show that the victim has made a more complete recovery from his injuries than had been expressly
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- acknowledged in the evidence which was before the learned magistrate and that the nature of his progress, recovery and recuperation was more advanced at the time of sentencing than that evidence disclosed or her Honour's reasons described. The proposed evidence also established that there had been substantial progress towards recovery by the victim since the sentencing. Counsel for the respondent did not oppose leave being granted to adduce this evidence and it was, as already noted, admitted at this hearing.
54 The affidavit from the appellant's solicitor deposed to a meeting held between him, the victim and the victim's father at the solicitor's office on 23 September 2011 and annexed a statutory declaration then made by the victim about those matters on 23 September 2011. Strictly speaking, if evidence from the victim is to be received it should be by an affidavit in these proceedings, but no point of procedure in this regard was taken and I will therefore refer to the victim's statutory declaration. In that document the young man makes reference to his father's victim impact statements and expresses a wish to clarify his recovery from the injuries suffered in the accident and then says:
7. I was attending Southern River College at the time of the accident and I returned to that college on or about 8 August 2011.
8. On two occasions since August 2011 I have had to go home early from school due to bad headaches.
9. I have been receiving physiotherapy for my neck.
10. I have also been receiving rehabilitation therapy since my discharge from hospital to help me recover fully my balance and coordination.
11. I believe I have regained in the order of 55 to 65% of my pre-accident balance and coordination and I am steadily improving.
12. I was suffering from constant headaches when I was discharged from hospital but my headaches are no longer as frequent and I currently suffer headaches once or twice a week.
13. When I was discharged from hospital my neck was sore constantly and I was suffering from whip lash.
14. My neck injury has slowly improved and has responded to physiotherapy and my neck is still sore each day.
15. In my opinion I have recovered 60 to 70% of the functioning of my neck.
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- 16. My medical advisors have informed me that in due course my neck injury is likely to fully recover.
17. About 2 weeks ago I attended Royal Perth Hospital as an outpatient and a trauma doctor reviewed my injuries and suggested that approximately 1 month after that appointment and thus two weeks after the date of this statutory declaration I should be able to return to work at Domino's Pizza on a gradual basis, and that is what I intend to do.
18. My medical advisors have informed me that due to my head injuries I should permanently avoid high impact sports such as Australian Rules Football and motor car racing. Those same doctors have informed me that in due course I will be able to participate in low impact sport and recreation activities.
19. I normally play softball and cricket and my medical advisors have informed me that I can return to playing these sports, however I should not return to those sports for a period of 6 to 12 months after the accident.
20. My medical advisors initially indicated that I ought to have constant care and supervision, but that has not been required since my return to school on or about 8 August 2011.
21. My medical advisors having informed me that I have entirely recovered from the brain trauma suffered in the accident. But they have also advised me that I am likely to be more prone to headaches than otherwise be the case for the rest of my life.
22. As a result of the accident I suffered no other injuries other than to my head and my neck.
23. The only medication I currently require is for headaches as and when they arise.
24. I expect to attend Southern River College and complete year 11 on schedule.
25. My medical advisors have not suggested that my injuries from the accident will limit my employee ability.
26. My parents have suggested that I receive some counselling to deal with the trauma of the accident and I intend to receive such counselling.
55 This is another example of compassionate and sympathetic conduct by the victim and his family consistent with the content of the victim impact statements. The submissions put were to the effect that the extent of the recovery was more complete and the consequences of the accident
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- less intrusive than her Honour may be supposed to have concluded but I doubt that this is so. It is very fortunate and encouraging that the victim is making a good recovery, but given the significance of his injuries, the disruption to his family, and, most of all, the obvious fact that chance and good fortune played a great part in the consequences of this accident which could so easily have been much worse, I do not consider that her Honour made any material misjudgement about the effects of the accident upon the victim or his family. It is clear that despite the dangerous driving of the appellant which might so easily have resulted in far more severe consequences, this victim has fortunately been spared a worse fate.
56 This has led to the situation which is at the heart of the submissions of the applicant, namely that in cases of dangerous driving causing death or grievous bodily harm the sentencing exercise warrants consideration of the gravity or the culpability of the illegal conduct by the offender and also of the consequences. We are all only too familiar with tragic cases in which a momentary or minor inattention or lapse, which is nevertheless dangerous, can lead to appalling consequences involving severe permanent injuries or loss of life, sometimes loss of several lives. On the other hand, there are cases of very gross dangerous driving resulting in either no injury to any person, or bodily harm not amounting to grievous bodily harm, or grievous bodily harm, as in this case, but of a transient nature resulting in full recovery. The consequences have been identified as a factor to be taken into account not because they are directly within the control of the offender but because of the objective impact which they have on the victims and of the risk constituted to the public.
Appellant's submissions
57 Counsel for the appellant invokes the principles applicable to an appeal against sentence as set out by McLure P and Owen JA in Wilson v The State of Western Australia [2010] WASCA 82 [2] where their Honours observed:
The imposition of a sentence involves the exercise of a discretion. An appellate court can only intervene if the appellant demonstrates that the judge erred in exercising the discretion in one of two ways. The first is called express error and it involves acting on a wrong principle, for example, by mistaking the law, mistaking the facts, taking into account an irrelevant matter or failing to take into account a relevant consideration. The second is referred to as implied or inferred error. It arises where, although it is not possible to discover the exact nature of the error, the end result is so unreasonable or unjust that the court must conclude that a substantial wrong has occurred: House v The King (1936) 55 CLR 499, 505. In most instances a challenge based on implied error will involve the
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- contention that an individual sentence is manifestly excessive (or inadequate) and (or) that the total effective term imposed for all charges offends the totality principle.
58 Counsel for the appellant acknowledged that an appeal court will not intervene simply because the judge or judges on appeal, had they been sentencing the offender originally, might have imposed a different sentence but only if error of one or other of the types described is established or demonstrable. Even then, if error is demonstrated, an appellate court can intervene only if satisfied that a different sentence should have been imposed at the original hearing - Criminal Appeals Act s 31(4)(a). In dealing with a sentence submitted to be manifestly excessive the court must have regard to the maximum sentence prescribed by law for the offence, the standards of sentencing customarily observed with respect to the particular offence, the place which the criminal conduct occupies on the scale of seriousness of offences of that type and the personal circumstances of the offender: Chan v The Queen(1989) 38 A Crim R 337, 342 and Lam v The State of Western Australia [2010] WASCA 61 [9] (McLure P) with whom Owen JA and Jenkins J agreed. It is not to the point that, because this offence was dealt with in the Magistrates Court and for that reason the maximum sentence which the learned magistrate could impose was restricted because of the jurisdiction of that court, on this appeal the question of whether or not the sentence is shown to be excessive should be determined with regard to the jurisdictional limit. Rather, the jurisdictional limit only marks the upper limit of the magistrate's sentencing powers and the question of whether or not the sentence imposed is excessive must be determined with regard to the sentence prescribed by statute: Wiltshire v Mafi [2010] WASCA 111 [24] - [33].
59 These propositions are not contentious. It is not suggested that they are sufficient, in themselves, to dispose of this appeal. First of all, it is acknowledged, by counsel for the appellant and the respondent, that there is no established tariff for this particular offence because of the widely different circumstances in which cases have been committed. Secondly, it is not submitted that the period of 12 months' imprisonment fixed by her Honour was in itself wrong or excessive, but rather that in the circumstances of this case, although calling for such a sentence of imprisonment, the sentence should have been suspended. Counsel for the appellant refers to the availability of a suspended sentence for this offence by reason of s 76(1) of the Sentencing Act and of the need for an evaluation of the circumstances of the individual offence and of the individual offender to be undertaken in order to consider whether to adopt
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- or to exclude the option of the suspended sentence: The State of Western Australia v Andela [2006] WASCA 77 [3] (Roberts-Smith JA). In undertaking an analysis whether or not to suspend a sentence of imprisonment, counsel for the appellant submits that an immediate term of imprisonment is not to be imposed unless it is the only appropriate sentencing option and unless no option of suspended imprisonment (conditional or otherwise) or other lesser sentence is suitable or sufficient: Skipworth v The State of Western Australia [2008] WASCA 64 [8] (McLure JA).
60 The test to be applied in determining whether or not a suspended sentence is appropriate is described in Dinsdale v The Queen. These principles have been discussed and applied on many subsequent occasions. They were considered in this State by Steytler J in R v Liddington (1997) 18 WAR 394, 406 and again by his Honour in Long v Mayger (2004) 142 Crim R 289; [2004] WASCA 41 where (at [26] - [27]) his Honour observed:
Amongst the factors which should be considered in deciding whether or not to suspend a sentence are the prospect of rehabilitation taken together with the personal deterrence provided by the threat of activation of a suspended sentence; the perceived seriousness and intrinsic character of the particular offence; whether there is any element of persistence; general deterrence; factors personal to the offender, including mitigating circumstances which, while no doubt already taken into account in arriving at the decision to impose imprisonment of a particular term, have to be considered again as regards the question whether or not to suspend the period of imprisonment so arrived at; the need to demonstrate the condemnation of the community for offences of that kind; and reasons militating in favour of an exercise of mercy.
The personal mitigating circumstances of the offender which must be considered (at both stages of the sentencing process) include such circumstances as the fact that the offender has no prior convictions; youth; advanced age; illness; the fact of steady continuing employment or good prospects of education or employment and the fact of the provision of 'genuine information to the authorities about the workings of organised crime'. (references omitted)
61 Also in that case at [28] Steytler J referred to the opportunity that suspension can provide for rehabilitation and the relevance of whether or not it is appropriate to send a first offender to prison when that person might be a person likely to benefit from an exercise of the court's clemency - see also R v Brazier (1994) 75 A Crim R 404, 408 (Debelle J) and Renshaw v Director of Public Prosecutions (Cth) (1996) 67 SASR 139 (Doyle CJ).
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62 There are certainly instances of convictions for this general type of offence which have not resulted in sentences of immediate imprisonment - see Abeyakoon v Brown and Hunt v Callaghan [2011] WASC 10. In this case, there are, quite obviously, factors indicating a high degree of culpability such as the pre-planning, the deliberate racing against another offender over a long distance, the very high speed reached and the occurrence of the offending conduct on a major highway in a suburban area. These are certainly grave factors and, together with the need for general deterrence, contributed prominently to the decision that a sentence of imprisonment was necessary in this case. In relation to factors of mitigation there was immediate assistance provided to the police and other authorities, full admissions made, a deep sense of remorse and a plea of guilty at the earliest stage. This offender is young and with no significant prior record, in steady employment with good educational and career prospects and settled in a stable family routine. His future prospects for a rewarding career with contributions to society are promising. Again, because of good fortune, this serious offence has resulted in an injury to the young passenger which, while serious, is not thought to be productive of long-term harm or disability. The attitude of the young passenger and his family towards the disposition of the case, while not determinative, evinces an appreciation that, at least from their viewpoint, incarceration of the appellant would not seem to serve appreciably any public interest.
63 It is always an extremely difficult task to sentence for offences of this nature where the hope of achieving general deterrence against ever present risks to the community from dangerous driving must be balanced against the demands of the instant case. However, neither the legislation nor the established course of precedents in this area is without guidance because the balances struck, in cases of doubt, are in favour of the less intrusive sentence unless the seriousness of the offence is so great that only immediate imprisonment is justified or the protection of the community demands immediate imprisonment - Sentencing Act s 6. This was undoubtedly a difficult case but the appellant is young, does appear to have learned an extremely severe lesson and no-one suggests that a sentence of imprisonment is inappropriate. Because of the mitigating factors which have been mentioned, I consider that this is a case which falls short of the dividing line at which immediate imprisonment must be imposed and that there was, consequently, an inferred error in the discretion to impose a sentence of immediate imprisonment. Even if this case had fallen closer to that elusive dividing line or, indeed, on it or within the opaque no man's land which must be regarded as the undefined
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- scope of that boundary, I consider that the principles emerging from the authorities are such that, in the absence of any other adequate alternative, a sentence of immediate imprisonment should not be imposed.
64 Accordingly, in this case, I consider that the appellant has made out his second ground of appeal and that this should succeed. The consequence, therefore, is that the appeal should be allowed and the sentence imposed in the Magistrates Court should be varied by directing that the period of 12 months' imprisonment imposed by her Honour should be suspended for a period of 18 months from the date when it was imposed, namely 18 August 2011. In the event that there is any breach of the terms of the suspended sentence requiring the court to consider whether or not some or all of the period of imprisonment should be served, it will, no doubt, be for that court to consider the fact that the appellant has already served some of the sentence before bail was granted pending this appeal. The information before me indicates that he was in custody serving that sentence from 18 August 2011 until released on bail on 31 August 2011. The other terms of the sentence imposed by her Honour, namely 2 years mandatory suspension of the appellant's motor driver's licence, will, of course, stand.
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