White v The Queen
[2003] WASCA 197
•28 AUGUST 2003
WHITE -v- THE QUEEN [2003] WASCA 197
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2003] WASCA 197 | |
| COURT OF CRIMINAL APPEAL | 28/08/2003 | ||
| Case No: | CCA:1/2003 | 17 APRIL 2003 | |
| Coram: | SCOTT J TEMPLEMAN J WHEELER J | 17/04/03 | |
| 12 | Judgment Part: | 1 of 1 | |
| Result: | Application for leave to appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | MARK JOSEPH WHITE THE QUEEN |
Catchwords: | Criminal law Appeal against sentence Manslaughter Motor vehicle collision Early plea and remorse only mitigating factors Whether discount must be quantified Whether error in imposition of severe sentence |
Legislation: | Criminal Code, s 689(3) Sentencing Act 1995 (WA), s 8 |
Case References: | Nil Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : WHITE -v- THE QUEEN [2003] WASCA 197 CORAM : SCOTT J
- TEMPLEMAN J
WHEELER J
- Applicant
AND
THE QUEEN
Respondent
Catchwords:
Criminal law - Appeal against sentence - Manslaughter - Motor vehicle collision - Early plea and remorse only mitigating factors - Whether discount must be quantified - Whether error in imposition of severe sentence
Legislation:
Criminal Code, s 689(3)
Sentencing Act 1995 (WA), s 8
(Page 2)
Result:
Application for leave to appeal dismissed
Category: B
Representation:
Counsel:
Applicant : Mr D M McKenna
Respondent : Mr D Dempster
Solicitors:
Applicant : Legal Aid of Western Australia
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Nil
Case(s) also cited:
Nil
(Page 3)
1 TEMPLEMAN J: The applicant was charged with a number of offences arising from a motor vehicle collision in Northam on 4 October 2002. We are concerned with only two of those charges, which were of manslaughter. The first count on the indictment, which was issued ex officio, alleges that on or about 4 October 2002 at Northam, Mark Joseph White (the applicant) unlawfully killed Cheryl Ann Smith. The second count is in similar terms, relating to the unlawful killing of Timothy John Smith.
2 Mr and Mrs Smith were a young married couple with two young children. They were travelling in their Holden Commodore on the evening of 4 October 2002. Their car was hit by a vehicle driven by the applicant. The applicant had been drinking that night. His blood alcohol level was .072. He had borrowed a car, he not owning a car. He had been driving around the streets of Northam, apparently looking for some friends.
3 The applicant had a passenger with him in the car. On the evidence of the passenger, the applicant was driving somewhat recklessly. He was driving at somewhere between 60 and 70 kilometres an hour in a 50-kilometre zone.
4 He approached a traffic intersection where there was a stop sign. The night was clear, the weather was good, the stop sign was clearly visible. As the car approached the stop sign, the passenger warned the applicant to watch out because there was a stop sign approaching. The applicant apparently said, "What stop sign?", in a somewhat sarcastic voice. And he accelerated through the junction, hitting the car driven by Mr Smith, with the tragic consequence to which I have just referred. Mr and Mrs Smith were killed instantly and their two young children in the back of the car were orphaned. It was accepted at the trial that the applicant had been warned about the stop sign and had driven through it at an increasing speed.
5 In the pre-sentence report which the applicant's counsel saw only this morning, he not being counsel at the hearing, there is a statement to the effect that the applicant did not see the stop sign. That, in my view, makes no difference because whether or not the applicant saw it, it is not contested that he was warned about it and nevertheless accelerated through the junction.
(Page 4)
6 Immediately following the collision, the applicant, who had not been injured, ran from the vehicle and went to the police station in Northam where he was taken into custody. He remained in custody thereafter.
7 The matter came on before the Chief Judge of the District Court on 13 December and the applicant pleaded guilty. He pleaded guilty at the first opportunity and was sentenced on the fast-track system.
8 Detailed submissions in mitigation were made to the learned Chief Judge by the applicant's then counsel. His Honour had written submissions on behalf of the applicant and his Honour took time to consider the submissions. Indeed, when sentencing, his Honour thanked counsel for his efforts in preparing those submissions and referring to a number of relevant authorities.
9 His Honour, in sentencing, dealt first with what he described as the ancillary issues: disqualification from driving and the excess alcohol matter. His Honour then went on to deal with the manslaughter charges. In so doing, his Honour observed that the manner of driving of the applicant on the night in question deserved close examination. His Honour said:
"It is clear that the degree of culpability or the manner of driving is of critical importance in sentencing in issues such as this. There is a threshold question that the negligence must be shown to be gross negligence and the seriousness of the offence being considered, and the penalty which must flow and follow, depends to an extent upon whether that threshold is surpassed and this is of course a question of degree. In assessing the conduct of the offender on the occasion a number of factors present themselves to be considered."
10 His Honour then went on to deal with the various factors. The first of those was the blood alcohol concentration of .072 per cent. His Honour observed that there had been, on the day in question, some degree of casual drinking, as his Honour put it, by the applicant: but his Honour noted that at the material time, the applicant was not grossly affected by alcohol, although his Honour said he had at least a significant degree of impairment of his functionality by virtue of the amount of alcohol proven to be in his body.
11 Pausing there, I take his Honour to mean simply that a blood alcohol level of .072 per cent necessarily involved some impairment of
(Page 5)
- functionality. I do not take his Honour's remark to be an assessment of the actual impairment of the functionality of the applicant at that time.
12 His Honour then went on to deal with the manner of driving and what his Honour described as the significant evidence of speed which his Honour took from the two witnesses as well as the actual evidence of the impact damage as shown in the photographs produced in court. Pausing there, one has only to look at the photographs, which are available to us in the appeal book, to see that the impact on the vehicle driven by Mr Smith was very substantial indeed.
13 His Honour then said that this was not a momentary lapse of attention. It was, his Honour said, an instance of dreadful driving, well and truly within the definition of grossly reckless driving. No challenge has been made to that description which, in my view, is entirely justified.
14 His Honour then went on to note that the applicant had no motor driver's licence and had never had one. His Honour said:
"In my view a conclusion that can be drawn from this is not simply that he has evaded paying a licence fee and taking a test; the conclusion is more than that. It means to me that this man has a total disregard for the laws of the road."
15 It is put by Mr McKenna, on behalf of the applicant this morning, that his client does not have a total disregard for the laws of the road and that may be inferred from the fact that he has no convictions for traffic offences. In that regard Mr McKenna is, I think, in something of a cleft stick because he points to the pre-sentence report in which it is said by the applicant that he has only ever driven on four or five occasions. I find that very hard to believe. But, if in fact the applicant had only driven on a very limited number of occasions then it is not surprising that he had no conviction for traffic offences.
16 The applicant said that when he was living in Sydney, as he did for a large part of his life, he had no need to drive, presumably because he could use public transport. However, I have great difficulty in accepting that a man now aged 40, who has never held a driver's licence, has only driven some four or five times; particularly as I note that it is accepted by the applicant, that he came to Western Australia by road. He drove himself across the Nullarbor.
17 I note also that the vehicle that the applicant was driving on the night in question was a borrowed vehicle which was apparently lent to him
(Page 6)
- without any inhibition on the part of the owner, having regard to the fact that the applicant had no licence. Even if the owner did not know that the applicant had no licence, she apparently had no qualms about him driving the vehicle.
18 I return to his Honour's judgment. The reference to the applicant having a total disregard for the laws of the road means, I think, simply this: that by not having a driver's licence and yet driving, there has been no acknowledgment by the applicant of, or submission to, the traffic laws, as required by a holder of a driver's licence. The applicant simply ignored those requirements in driving as he did.
19 His Honour said he believed it to be the law in this State that the number of deceased persons or the number of victims did not automatically increase penalty by that number arithmetically but the fact that more than one person was killed was certainly a factor in the overall consideration.
20 I respectfully agree with that view taken by his Honour of the law. His Honour then turned to the applicant. He said:
"Clearly he is not a young man. He is a man 42 years of age. He has had a significant involvement with the law in other states. He appears to be more or less an itinerant who is not regularly employed."
21 His Honour then turned to the pre-sentence report and the psychological report which had been furnished to him. His Honour noted the remorse exhibited by the applicant, who said he wished he could turn back time and was sorry the offences had occurred. He accepted responsibility for the accident. His Honour said the applicant's plea must be acknowledged and accepted in that respect. Again, his Honour was quite right, of course, to accept the applicant's remorse expressed in that way.
22 His Honour then went on to deal with the applicant's personal circumstances. The applicant was currently single. He had four children living in the Eastern States to three separate partners. He did not have custody of the children, but he had access to them. The applicant was in sound physical health but from the psychological report was said to be clearly suffering from regret about the accident.
23 His Honour then went on to say:
(Page 7)
- "In the way this matter has turned out it is not a question as to whether or not a term of imprisonment to be immediately served is the critical issue. There was never any argument in that connection and counsel for the accused did not dispute it. It is really a question as to how long the term is."
24 Again, that is the position maintained by the applicant's counsel today. The applicant rightly accepts that he is to be imprisoned but the question is how long should the term be.
25 His Honour then went on to deal with the authorities to which he had been referred by the applicant's counsel. I don't propose to deal with those in these remarks because it is accepted that there is no tariff for manslaughter: and there is no tariff for what is commonly described as motor vehicle manslaughter. Further, the circumstances of the applicant are quite different from those of the persons the subject of the various authorities.
26 His Honour concluded his remarks in these terms:
"There is again the factor of multiple deaths rather than one, and I have covered that earlier on. It is my finding, and perusing the authorities referred to by counsel, that a starting point - no, I will move back somewhat; firstly we know what the two-tier system of sentencing means, that a sentence can be imposed and then a discount allowed and in many cases the discount is quantified by the early plea.
It seems to me that sentencing in the recent past has sometimes gone along that track and sometimes gone along another track. There is something I find particularly difficult or almost distasteful in this case of quantifying the discount. I perhaps can't explain that terribly well but that's what I am approaching. So let me make it clear, he is getting a discount. He is getting a discount because of the fact that he has cooperated with the authorities, although he dissembled on the night in question. He has not availed himself of bail. He has pleaded guilty on the fast-track and at least for the people involved the matter is now brought to an end and hopefully their lives can move on.
He is getting back benefit. Even so I come to the conclusion that each of these two counts on the indictment ought attract a term of 10 years' imprisonment to be served concurrently, to date from 5 October last and for the offender to be eligible for
(Page 8)
- parole on all counts. I have given careful thought to the very comprehensive authorities and submissions filed by Mr Rebbeck, counsel for the accused, but that still remains my determination."
27 It is from those sentences of 10 years' imprisonment that the applicant now seeks to appeal. His grounds of appeal are that the learned sentencing judge erred in imposing sentences that were manifestly excessive in all of the circumstances of the case. Particulars are given which are relied upon in support of the contention that the sentences were manifestly excessive.
28 The first particular is that the learned sentencing judge used a method of "instinctive synthesis in determining the sentences to be imposed upon the applicant." It is said that the learned judge did not give a starting point, but went straight to the term of 10 years' imprisonment.
29 It will be clear from the passage I have read from his Honour's sentencing remarks that he started to express himself in terms of a starting point but then resiled from that because of the difficulty and distastefulness of quantifying a discount in a case such as this.
30 It is now settled that it is not necessary for a sentencing judge to give a starting point. All that is required under s 8 of the Sentencing Act is for a judge to take account of a mitigating factor, and if reducing a sentence because of such a factor, to state that fact in open court. That is the effect of s 8(4) of the Sentencing Act which does not say that the amount of the discount must be stated. That is to be compared with s 8(5) of the SentencingAct which provides:
"If, because an offender undertakes to assist law enforcement authorities, a court reduces the sentence it would otherwise have imposed on the offender, the court must state that fact and the extent of the reduction in open court." (my emphasis)
31 His Honour made specific reference to the one mitigating factor which existed in this case, namely, the early plea of guilty and the remorse exhibited by the applicant: and his Honour made it clear that the applicant was getting a discount. His Honour therefore satisfied the requirement of s 8(4) of the Sentencing Act and he also satisfied the requirement to give a discount where mitigating factors exist.
32 The second particular is that the learned sentencing judge made no formal finding that the offences of manslaughter before him were of the
(Page 9)
- worst sort. Clearly the offences were not of the worst sort in the sense that worse offences of manslaughter could be imagined. However, they were very serious offences indeed and they were of the most tragic kind - the instant orphaning of two children and the instant death of two young people, who were of course very vulnerable in the circumstances in which they found themselves on that night in question. The vulnerability of a victim of an offence is now a matter which a sentencing judge is required to take into account, having regard to a recent amendment to the Sentencing Act.
33 One only has to read, as I have read, the victim impact statements of the deceased's parents to see what a tragic and devastating effect these offences have had on that family. Had the offences been of the worst sort, then they would undoubtedly have attracted sentences close to the 20-year maximum which is prescribed for manslaughter. But that is not what his Honour did. His Honour gave a discount and then imposed sentences of 10 years.
34 The third particular is that the learned sentencing judge sentenced the applicant as if the offences of manslaughter were of the worst sort. In so doing the learned sentencing judge failed to accurately place the offences of manslaughter before him on a scale of seriousness for such offences.
35 I repeat, there is no tariff for offences of this kind. I therefore think I have dealt with this ground of appeal because I have expressed the view that the learned judge did not sentence the applicant as if the offences of manslaughter were of the worst sort. His Honour described the offences, described all the relevant circumstances and sentenced on that basis. I am not persuaded that his Honour was in any way in error in approaching the matter as he did.
36 The final particular is that the sentence imposed by the learned sentencing judge failed to adequately reflect a fair discount for the applicant's remorse, his decision to remain in custody while on remand and not take bail, his cooperation with the authorities, his plea of guilty at the earliest possible time to two counts of dangerous driving causing death in the Court of Petty Sessions, his plea of guilty on a fast-track sentencing hearing of two substituted ex officio counts of manslaughter in the District Court and his lack of any prior traffic convictions in any jurisdiction.
37 I have already said that the discount need not be quantified and I have already referred to the mitigating factors which are included in that
(Page 10)
- particular. I am not persuaded that that particular discloses any error on the part of the learned sentencing judge.
38 It is accepted by the Crown that the sentences imposed on the applicant were severe, but that is not to say that error has been demonstrated. The question always for this court in sentencing appeals is that which arises from s 689(3) of the Criminal Code which provides:
"On an appeal against sentence the Court of Criminal Appeal shall if they think that a different sentence should have been passed quash the sentence passed at the trial, and pass such other sentence warranted in law by the verdict which may lawfully be passed for the offence." (my emphasis)
39 The question is not whether this Court or any individual member of the court would have imposed a less severe sentence, had one of us been the sentencing judge. The question is whether the learned sentencing judge fell into error: and fell into error in any of the ways identified by the grounds of appeal to such an extent as to pass an inappropriate sentence.
40 Mr McKenna says that it is impossible to say where the learned judge went wrong because of the way in which he formulated his reasons. However, the difficulty Mr McKenna faces, in my view, is that it is not possible to demonstrate error on the part of the learned sentencing judge and the sentence, although severe, was in my view within the range of the discretion which it was open to his Honour to exercise.
41 I should deal with matters specifically raised by Mr McKenna: that there were in this case none of the aggravating factors which might have been present. Thus, the applicant had no prior traffic convictions, no prior convictions for manslaughter. He was not on bail when the offences were committed. He was not disqualified from driving. He was not involved in a high-speed chase. He had not stolen the motor vehicle. He was not under the influence of alcohol or drugs to the extent of being incapable of driving a vehicle. The vehicle was not defective. The applicant did not flee the scene. He was not drinking alcohol when driving the motor vehicle and he was not driving at an enormous speed which is sometimes a feature of cases of this kind.
42 All that is true: but the absence of those aggravating factors does not mean that there should therefore be some benefit given by way of mitigation. The only mitigating factor was the plea of guilty. I am not persuaded, in all the circumstances, that his Honour erred. In my view the application should be dismissed.
(Page 11)
43 SCOTT J: I would grant leave to appeal in this matter but I would dismiss the appeal in relation to each sentence for the reason just advanced by Templeman J. I would only add this: that in my view the sentences imposed in each case that we are dealing with here were more to the top of the range for the offence of motor vehicle manslaughter and whilst it may be the case that had I sentenced the applicant in relation to either of these matters it is possible that I may have reached a lower sentence that is not the appropriate test.
44 The question for this court is whether the sentences imposed by the learned trial judge were within the range of appropriate sentences, within the appropriate sentencing discretionary range for the offences in question, in all the circumstances of the case. Having taken into account all of the matters that have been advanced by counsel for the applicant and the detailed and careful sentencing remarks of the learned trial judge including his reference to authorities, some of which have been referred to by counsel again here today, I am not persuaded that the sentences imposed by his Honour fell outside the appropriate discretionary sentencing range. For these reasons, as I say, I would grant leave to appeal in each case but dismiss the appeals.
45 WHEELER J: I am in agreement with Templeman J. I wish only to add certain observations in relation to the fourth of the particulars of the grounds of appeal which is broadly to the effect that the sentence imposed by his Honour failed to adequately reflect the applicant's remorse and plea of guilty and matters related thereto.
46 Those were clearly mitigating factors. His Honour expressly referred to them as mitigating and expressly acknowledged that he was discounting the sentences he would otherwise have imposed because of the plea of guilty. So far as the plea of guilty and remorse are concerned, however, they are to be seen against this background: that is, in relation to the plea of guilty there was the evidence of Mr Megee as to the way in which the applicant came to drive through the stop sign; there were photographs it seems of the scene which from my observation of them make it plain that the stop sign was very clearly visible to anyone who looked; there was forensic evidence in the sense of plans and examinations of the scene conducted by police officers; and there were observations of police officers - I think a doctor in relation to Mr Megee - as to marks on the applicant's neck and on Mr Megee's consistent with a seat belt which despite what the applicant said on the night seemed to put it beyond doubt that it was the applicant who was driving.
(Page 12)
47 In those circumstances it is perhaps not a case in which one would say that verdict of guilty was inevitable but it was certainly highly probable and the plea must be seen against that background I would think.
48 So far as the remorse is concerned, there was an expression of remorse and contrition on behalf of the applicant by his counsel and there were references in the pre-sentence report and in the psychological report which dealt with remorse and grief. So far as those reports are concerned, however, it is plain that what was said to the authors of them grossly minimised the applicant's manner of driving and the way in which the accident came about.
49 Each of them clearly had the impression that there was mere momentary inattention and carelessness. It seems to me that the expressions of remorse which were seen as appropriate by those authors must be viewed against that minimisation. So for those reasons and the reasons of Templeman J I would dismiss the application.
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