Winwood v Brown - [2011] WASC 123

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: WINWOOD -v- BROWN [2011] WASC 123

CORAM: COMMISSIONER SLEIGHT

HEARD: 1 APRIL 2011

DELIVERED : 11 MAY 2011

FILE NO/S: SJA 1008 of 2011

BETWEEN: MATTHEW JAMES WINWOOD
Appellant
AND
PAULETTE ELIZABETH BROWN
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE K T FISHER
File No  :BU 174 of 2010

Catchwords:

Criminal law - Appeal against sentence - Dangerous driving involving death - Whether sentence of immediate imprisonment manifestly excessive - Use of comparable cases - Principles of sentencing applicable under s 59(1)(b) of the Road Traffic Act 1974 (WA) - Maximum penalty applicable - Whether imprisonment penalties prescribed in s 59(3) are applicable only where an offender causes the death of another person

Legislation:

Road Traffic Act 1974 (WA), s 59(1)(b), s 59(3)

Result:

Appeal against sentence dismissed

Category: B

Representation:

Counsel:

Appellant: Mr P J Urquhart
Respondent: Mr S F Rafferty

Solicitors:

Appellant: Young & Young
Respondent: Director of Public Prosecutions (WA)

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

Barron v The State of Western Australia [2010] WASCA 27
Chan v The Queen (1989) 38 A Crim R 337
Devine v The State of Western Australia [2010] WASCA 94
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
Eves v The State of Western Australia [2008] WASCA 7; (2008) 49 MVR 259
Flynne v Goddard [2009] WASC 92
Hili v The Queen [2010] HCA 45
Hunt v Callaghan [2011] WASC 10
Lam v The State of Western Australia [2010] WASCA 61
Long v Mayger [2004] WASCA 41
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
R v Stebbings (1990) 4 WAR 538; (1990) 12 MVR 553
Taylor v The State of Western Australia [2009] WASCA 226
The State of Western Australia v Gibbs [2009] WASCA 7
The State of Western Australia v Olive [2011] WASCA 25
Wilshire v Mafi [2010] WASCA 111
Wilson v The State of Western Australia [2010] WASCA 82
Wong v The Queen (2001) 207 CLR 584
Wood v The Queen [2002] WASCA 95

COMMISSIONER SLEIGHT: On 2 August 2009 Mr John Hennessy died as a result of injuries suffered when struck by a motor vehicle driven by Mr Winwood in Blair Street, Bunbury. Mr Winwood was charged with an offence under s 59(1)(b) of the Road Traffic Act 1974 (WA). After a three day trial in the Bunbury Magistrates Court, Mr Winwood was convicted of the charge against him.
On 24 January 2011 the magistrate, Mr Fisher sentenced Mr Winwood to an immediate term of imprisonment of 16 months with an order for eligibility for parole. The magistrate also imposed a period of disqualification of licence for two years.
Mr Winwood appeals against the sentence imposed. On 10 February 2011, his Honour Justice Murray ordered that the appellant's application for leave to appeal be heard with the appeal.

Grounds of appeal

The grounds of appeal relied upon by Mr Winwood are as follows:
1.The learned magistrate erred in law by imposing a sentence that was manifestly excessive by imposing an immediate term of imprisonment rather than suspending the sentence pursuant to s 76 of the Sentencing Act 1995 (WA).
2.The learned magistrate erred in law in reaching a conclusion that, as the offence was serious, general deterrence must outweigh matters that were personal to the appellant and therefore the term of imprisonment could not be suspended.

The circumstances of the offence

On 2 August 2008, a Mr Gumbrell drove a Toyota Hilux vehicle to what is known as the Back Beach of the town of Bunbury. In the car park at the Back Beach were three other vehicles, one of which was a black Holden Commodore of Mr Winwood. One of the two other vehicles situated at the Back Beach belonged to a Mr Daniel Jones. There existed what the magistrate described as a 'degree of ill will' between Mr Gumbrell and Mr Jones. There was also some history of animosity between Mr Gumbrell and Mr Winwood. On seeing the three vehicles, Mr Gumbrell, concerned by past animosities, braked and reversed his vehicle away from the carpark and, in so doing, attracted the attention of Mr Winwood and the occupants of the other vehicles.
Mr Gumbrell drove off at speed to avoid conflict with Mr Winwood and Mr Jones. The three vehicles in the carpark, including that of Mr Winwood, then took off in pursuit of Mr Gumbrell's vehicle. According to the evidence of Mr Gumbrell, Mr Winwood's vehicle was involved in the pursuit for about 20 minutes. Various witnesses described the vehicles involved in the pursuit travelling at speed through built‑up areas of the township of Bunbury.
Mr Gumbrell's vehicle eventually came to a large roundabout which linked various roads to Blair Street, Bunbury. Mr Gumbrell drove his vehicle at speed into the roundabout and into Blair Street. He was followed through the roundabout and into Blair Street by the three pursuing vehicles. By the time the three vehicles entered Blair Street, the vehicle driven by Mr Winwood was leading the three other vehicles.
The speed limit in Blair Street is 60 km per hour. Blair Street and the conditions were described by the magistrate in his reasons:
The road skirts the central business district of Bunbury dissecting it from the waters of the Leschenault Inlet, the central business district of Bunbury being on its western boundary and the inlet on its eastern boundary. The road is in good condition, level with a slight but gentle left curve for south bound vehicles. The conditions at the time of the incident were good. The weather was fine and visibility at night was assisted by overhead lighting located in the median strip between the carriageways. With the exception of one light south of the incident location the lights were operating. There was also ambient lighting from the public car park located on the western verge of the carriageway and from the central business district itself.
On the same night, Mr Hennessy had been drinking at a hotel in Bunbury with a friend Mr Slattery. They left the hotel via a rear exit and walked across a public carpark area situated on the west side of Blair Street. Mr Hennessy was very intoxicated and tests conducted after the accident indicated a blood alcohol level in the order of 0.257%. Whilst walking, Mr Hennessy was listening to messages on his mobile phone. Mr Slattery walked ahead of Mr Hennessy and had crossed Blair Street before Mr Hennessy. Mr Gumbrell in his evidence described that as he drove at speed along Blair Street he passed Mr Hennessy who was standing on the median strip. According to Mr Gumbrell's evidence, Mr Hennessy stuck his foot out at Mr Gumbrell's passing vehicle.
After Mr Slattery had completed the crossing of the road and was on the eastern verge of Blair Street, he turned to see Mr Hennessy on the southbound carriageway walking towards him and about to enter the curb‑side lane, or most eastern lane, of Blair Street.
The pursuing vehicle driven by Mr Winwood was in the left‑hand lane (that is the most eastern lane) of Blair Street heading in a southerly direction. The magistrate's finding was that Mr Winwood's vehicle was travelling at that point in time at a speed 'in excess of 70 ‑ 75 km per hour and well in excess of the posted speed limit of 60 kilometres per hour' and in a manner as to pursue the vehicle driven by Mr Gumbrell.
The point of collision occurred as Mr Hennessy entered the left‑hand or most eastern lane and he was struck by the front right‑hand side of Mr Winwood's vehicle.
A witness called by the prosecution, Ms Wendy Leanne Robinson, gave evidence that she was at the scene of the accident shortly after its occurrence and that Mr Winwood said 'he walked straight out in front of me'.
A police officer, Senior Constable Baker, gave evidence that he spoke to Mr Winwood at the scene of the accident and Mr Winwood said:
I was travelling in the left‑hand lane, doing about 60. I saw him in the middle of the road and then I looked up the middle of the road and then he was on my windscreen (ts 70).
Mr Winwood was given a preliminary breath test and the reading was zero.
The magistrate, after referring to the speed of Mr Winwood's vehicle as in excess of 70 ‑ 75 km per hour and the fact that it was engaged in a pursuit, concluded that 'in so doing, he [Mr Winwood] failed to see Mr Hennessy until that moment before he struck'.

Victim impact statement

Pursuant to s 26 of the Sentencing Act 1995 (WA), three written victim impact statements were presented; one victim impact statement from Mr Hennessy's wife, one from his parents, and one from his sister. It is clear from these victim impact statements that Mr Hennessy came from a close, supportive family. All of the family members have suffered a tragic loss. In particular, the victim impact statement of Mrs Hennessy spoke of the emotional loss and grief she and her two children have suffered. They have also suffered financial pressures as a result of Mr Hennessy's death, as he was the sole financial provider for the family.

Personal circumstances of Mr Winwood

Mr Winwood is a young man who was aged 22 at the time of the accident and at the time of sentencing he was aged 23.
A pre‑sentence report indicates that Mr Winwood was born and raised in Bunbury. He was the only child born to his parents who separated when he was 2 years of age. He was raised by his mother and, despite his parents' separation, he has been provided with a supportive, loving upbringing by both his parents. He graduated from high school after completing year 12. Mr Winwood is currently employed in his father's business as a roof plumber, having commenced an apprenticeship in that position in 2010. Mr Winwood has no substance use problems. He has experimented with alcohol, but does not like the taste of alcoholic drinks and therefore only consumes alcohol on odd occasions.
Mr Winwood has no prior criminal convictions. The pre‑sentence report confirms that Mr Winwood is remorseful for his actions. He accepts full responsibility for his actions and appreciates the impact on Mr Hennessy's family.
A psychological report indicated that Mr Winwood was experiencing a moderate level of depression, a moderate to severe level of anxiety and a moderate level of stress. Mr Winwood appeared to be avoidant in his management of his psychological state, but sought the assistance of a counsellor when he experienced difficulty after his pre‑sentence report interview.
The psychological report stated that Mr Winwood acknowledged that before the accident, there had been other occasions of chases that he had been involved in. Mr Winwood had stated that this was an activity that other young people in Bunbury engaged in and it was described as a sort of recreational activity. Before the death of Mr Hennessy, Mr Winwood did not think that there was any risk in this behaviour. He now realises the level of risk involved in this activity and he has ceased engaging in this activity since the date of the fatal accident.
A book of references was tendered on behalf of Mr Winwood. The references contained in this book indicate that Mr Winwood is a hardworking, honest and reliable young man. All of the reports speak of his deep remorse for his conduct and the death of Mr Hennessy.

Sentencing remarks

The magistrate sentenced Mr Winwood on 24 January 2011. After referring to victim impact statements from Mr Hennessy's wife, his parents and brother, his Honour commented concerning the circumstances of the offence as follows:
It's unnecessary to restate the factual findings of this court except to confirm that your manner of driving that occasioned the death of Mr Hennessy was not transitory nor borne out of momentary inattention. Whilst it was the prosecution's case, and accepted by the court, that you had engaged in a cat and mouse pursuit of Matthew Gumbrell through various streets of inner Bunbury before coming upon his vehicle at [sic] it entered the northern roundabout and proceeded along Blair Street.
You pursued his vehicle at speed well in excess of the 60 kilometre per hour limit for Blair Street, and in so doing struck Mr Hennessy as he was crossing the southbound lane of Blair Street and there inflicting fatal injuries upon him. It is accepted that Mr Hennessy was heavily intoxicated and probably taking messages on his mobile phone and the result that he was not taking the usual cautions in crossing the roadway.
For reasons that remain unexplained, you did not see Mr Hennessy until the moment before striking him, although it might be - although it was night‑time, the weather conditions were fine and the lighting in the immediate area such that he was clearly to be seen by an attentive driver. The inference arising from your failure to see Mr Hennessy earlier meant that you were focused on your pursuit of Matthew Gumbrell. I accept your immediate remorse and contrition and of the fact that it continues to this day and is reflected in every fact of your daily life.
The offence is, in my view, serious, where there is a serious departure from the proper management of a motor vehicle over a significant period of time in a heavily built up area, involved the pursuit of another vehicle at speed that resulted in the death of a pedestrian. The penalty provided by section 59 of Road Traffic Act in these circumstances, absent aggravation, is 10 years' imprisonment. This court has jurisdiction to impose imprisonment of three years or a substantial fine.
The magistrate then went on to state as follows:
It is now well recognised that such is the wide variety cf circumstances in which these offences of this type occur, that there is no tariff and that comparisons with other cases are largely unhelpful. Deterrence, both general and particular does, however, play a significant role in cases such as these. However, I accept that with your abject contrition and remorse, personal deterrence has little if any impact with my discretion.
You were, at the date of this offence, a young man of 22 years of age, employed as an apprentice roof carpenter with your father's business. You had the benefit of a loving and supportive upbringing and that support continues. I have been feted with references that speak well of you and your conduct within the family, within the work environment and within the community. There is, however, nothing exceptional in your upbringing, nor is it at present suggested you are - nor does it suggest otherwise that you are a valued member of society with a potential of significant contributions.
However, the offence is serious, and clearly general deterrence must here outweigh those matters that are more personal to you. In my respectful view the conduct is so serious that it warrants a custodial sentence of two years' imprisonment. You are entitled to a mitigatory effect of your lack of any prior convictions, save I note your earlier demerit point disqualification, and your clear contrition and remorse.
I am also obliged to have some regard to the conduct of the victim, Mr Hennessy who failed to have some regard for his own circumstances when crossing the road. In my respectful view, having regard to those factors, the appropriate sentence here is a period of 16 months' imprisonment.
It is necessary for this court to now give consideration whether or not the court, in the exercise of mercy should suspend that period of imprisonment. To that extent his Honour Mr Steytler J in a case of Long v Mayger set down some, but not an exhaustive list of factors to which the court should consider, in deciding whether or not to suspend a sentence. They are that 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 no doubt are already taken into account in arriving at a decision to impose imprisonment of a particular term, have to be considered again as regards the question of whether or not to suspend the period or imprisonment so arrived.
I need to demonstrate condemnation of the community for offences of this kind, and as I have indicated, reasons mitigating in favour of the exercise of mercy. In my respectful view, such is the circumstance of this case that deterrence, general deterrence, must now outweigh matters that are personal to you.
You are, in all the circumstances, sentenced to 16 months' imprisonment. There will, however, given the fact that you are a young man with prospects, you are declared eligible for parole. The only remaining matter need to be noted by the court is that you are to be subject to a period or disqualification of a minimum of two years. Please stand down and wait in custody.

General principles

The general principles when dealing with an appeal against sentence were set out in the decision of Mazza J in Wilson v The State of Western Australia [2010] WASCA 82 [2]. The principles were listed as follows:
1.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 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.
2.It follows that the appeal court will not intervene simply because the members of the court, had they been sentencing the offender at the original hearing, might have imposed a different sentence: House, 505.
3.Even if error is demonstrated the appellate court can intervene only if it is satisfied that a different sentence should have been imposed at the original hearing: Criminal Appeals Act s 31(4)(a).
4.An appellant must obtain leave to appeal on each ground that she or he wishes to advance in support of the appeal and the court must not grant leave unless it is satisfied that the ground has a reasonable prospect of succeeding: Criminal Appeals Act s 27(1) and (2).
5.To have a reasonable prospect of succeeding, a ground must have a rational and logical prospect of succeeding, or a real prospect of success: Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [25] - [61], especially [56].

Ground 1

The first ground of appeal is that the sentence imposed was manifestly excessive.
In determining whether a sentence is manifestly excessive, regard is had to the maximum sentence for the offence, the standards of sentencing customarily observed with respect to the offence, the place the criminal conduct occupies on a 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; Lam v The State of Western Australia [2010] WASCA 61 [9] (McLure P, with whom Owen JA & Jenkins J agreed).
In relation to an appeal based upon manifestly excessive or inadequate sentence, the High Court in the recent decision of Hili v The Queen [2010] HCA 45 stated:
As was said in Dinsdale v The Queen, '[m]anifest inadequacy of sentence, like manifest excess, is a conclusion'. And, as the plurality pointed out in Wong, appellate intervention on the ground that a sentence is manifestly excessive or manifestly inadequate 'is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases'. Rather, as the plurality went on to say in Wong, '[i]ntervention is warranted only where the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons'. But, by its very nature, that is a conclusion that does not admit of lengthy exposition. And, in the present matters, the Court of Criminal Appeal, having described the circumstances of the offending and the personal circumstances of the offenders, said that 'the sentence imposed in these matters is so far outside the range of sentences available that there must have been error.
The Court of Criminal Appeal also said that 'manifest error is fundamentally intuitive'. That is not right. No doubt, as the Court went on to say, manifest error 'arises because the sentence imposed is out of the range of sentences that could have been imposed and therefore there must have been error, even though it is impossible to identify it'. But what reveals manifest excess, or inadequacy, of sentence is consideration of all of the matters that are relevant to fixing the sentence. The references made by the Court of Criminal Appeal to the circumstances of the offending and the personal circumstances of each offender were, therefore, important elements in the reasons of the Court of Criminal Appeal [58] ‑ [60]. (footnotes omitted)

In this matter the appellant, Mr Winwood, contends that in the circumstances of where the dangerous manner of driving was confined to speed and given Mr Winwood's personal circumstances, a suspended term of imprisonment was warranted. The appellant in particular relies upon the fact that he had just turned 22, had no prior criminal record, had not consumed alcohol prior to the incident and was extremely remorseful.

Maximum penalty

The penalty provisions of s 59(1)(b) are not easy to interpret. The relative statutory provisions are as follows:
59.Dangerous driving causing death, injury etc.
(1)If a motor vehicle driven by a person (the driver) is involved in an incident occasioning the death of, or grievous bodily harm to, another person and the driver was, at the time of the incident, driving the motor vehicle ‑
(a)while under the influence of alcohol, drugs, or alcohol and drugs to such an extent as to be incapable of having proper control of the vehicle; or
(b)in a manner (which expression includes speed) that is, having regard to all the circumstances of the case, dangerous to the public or to any person,
the driver commits a crime and is liable to the penalty in subsection (3).
Summary conviction penalty: imprisonment for 3 years or a fine of 720 PU and in any event the court convicting the person shall order that he be disqualified from holding or obtaining a driver's licence for a period of not less than 2 years.
...
(3)A person convicted on indictment of an offence against this section is liable ‑
(a)if the offence is against subsection (1)(a), or the offence is against subsection (1)(b) and is committed in circumstances of aggravation, to a fine of any amount and to imprisonment for ‑
(i)20 years, if the person has caused the death of another person; or
(ii)14 years, if the person has caused grievous bodily harm to another person;
or
(b)in any other circumstances, to a fine of any amount and to imprisonment for ‑
(i)10 years, if the person has caused the death of another person; or
(ii)7 years, if the person has caused grievous bodily harm to another person,
and, in any event, the court convicting that person shall order that he be disqualified from holding or obtaining a driver's licence for a period of not less than 2 years.
Section 59B(3) defines a 'circumstance of aggravation' as being where a person unlawfully drives a vehicle without the consent of the owner or person in charge of the vehicle, drives the vehicle on a road at a speed exceeding the speed limit by 45 km per hour, or the person was driving the vehicle to escape pursuit by a member of the police force.
Section 59B(6) provides that, in any proceeding for an offence under s 59, it is a defence for the person charged to prove that the death or grievous bodily harm occasioned by the incident was not in any way attributable either to the fact that the person charged was under the influence or to the manner (including speed) in which the motor vehicle was driven.
In interpreting the penalty provisions of s 59, consideration must also be had to s 7(3) of the Sentencing Act which provides as follows:
7.Aggravating factors
...
(3)If the statutory penalty for an offence is greater if the offence is committed in certain circumstances than if it is committed without the existence of those circumstances, then ‑
(a)an offender is not liable to the greater statutory penalty unless he or she has been charged and convicted of committing the offence in those circumstances; and
(b)whether or not the offender was so charged, the existence of those circumstances may be taken into account as aggravating factors.
Section 59(1) of the Road Traffic Act (under which Mr Winwood was charged) was introduced by No 44 of 2004 and became law on 1 January 2005. The previous s 59(1) was repealed by this amending legislation. Prior to the amendment, the prosecution had to prove that the manner of driving caused the death. As a result of the amendment to s 59(1), the prosecution is no longer required to prove such causation. In The State of Western Australia v Gibbs [2009] WASCA 7, Steytler P (with whom McLure & Miller JJA agreed) stated:
The changes introduced by the amending Act are significant. Most importantly, there is no longer any requirement that causation be proved as an element of the offence. The prosecution need merely establish that the 'incident' occasioned death or grievous bodily harm. By subs 59B(6) the person charged bears the onus of proving that the death or grievous bodily harm occasioned by the incident was not in any way attributable to the fact that he or she was under the influence or to his or her manner of driving [25].
In relation to the penalty provisions, after considering relevant rules of construction, Steytler P made the following obiter conclusions:
In the present case it seems to me that the preferable construction of s 59 of the RTA, read with s 59B, is that there is one offence of dangerous driving occasioning death or grievous bodily harm to another person in either of the circumstances provided for by subsections 59(1)(a) and 59(1)(b), the penalty for which varies, depending upon other circumstances that do not alter the nature of the offence concerned. ... That seems to me to be apparent from the fact that s 59(1) provides that, if the elements of the offence described in that section are present, the driver 'commits a crime and is liable to the penalty in subsection (3)'. Subsection (3) then provides for the penalty to which a 'person convicted on indictment of an offence against this section is liable' (my italics). That penalty varies depending upon:
(a)whether the dangerous driving constituted an offence against subsection (1)(a) or subsection (1)(b); and
(b)if against subsection (1)(b), whether it was or was not committed in circumstances of aggravation; and
(c)in either case, whether death or bodily harm was occasioned in the incident [43].
His Honour did not allude to the wording of s 59(3)(b) which states that the 10‑year imprisonment penalty applies 'if the person has caused the death of another person'. His Honour appears to have treated this wording as being equivalent to 'if the incident has caused the death of another person'.
An alternative interpretation is that the penalty contained in s 59(3)(b) is only available when there is an additional finding that the person caused the death of another person (as opposed to the incident). Pursuant to s 7 of the Sentencing Act, this penalty then would only become available if pleaded in the charge. However, this interpretation would lead to an anomaly. The wording in s 59(1) prescribes that the penalty on conviction is to be that contained in subsection (3). This would mean that if there was no additional allegation that the accused caused the death of the deceased, then under subsection (3) there would be no penalty other than a fine. This would be inconsistent with the summary conviction penalty provision which does not use the wording 'caused the death of another person' and prescribes a possible term of imprisonment in all situations.
Where legislation provides for a 'summary conviction penalty', by virtue of the Interpretation Act 1984 (WA), s 5 of the Criminal Code (WA) applies. Section 5(8) ‑ (10) of the Criminal Code provide as follows:
5.Summary conviction penalty, meaning and effect of
...
(8)If the court convicts the accused of the offence charged (whether after a plea of guilty or otherwise), the accused is liable to the summary conviction penalty provided for the offence, unless the court commits the accused for sentence.
(9)If the court ‑
(a)convicts the accused of the offence charged after a plea of guilty or otherwise; and
(b)considers that any sentence the court could impose on the accused for the offence would not be commensurate with the seriousness of the offence,
the court may commit the accused to a court of competent jurisdiction for sentence.
(10)An accused who is committed for sentence under subsection (9) is liable to the penalty with which the offence is punishable on indictment.
In Wilshire v Mafi[2010] WASCA 111, the Court of Appeal authoritatively stated the law in this State was that where there is a summary conviction penalty provided on indictable offences, the maximum penalty is to be that as prescribed for conviction on indictment and the summary conviction penalty is to be treated as a jurisdictional limit.
In the High Court decision of Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, the plurality of McHugh, Gummow , Kirby and Hayne JJ stated:
The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined 'by reference to the language of the instrument viewed as a whole'. In Commissioner for Railways (NSW) v Agalianos, Dixon CJ pointed out that 'the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed'. Thus, the process of construction must always begin by examining the context of the provision that is being construed.
A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions. Reconciling conflicting provisions will often require the court 'to determine which is the leading provision and which the subordinate provision, and which must give way to the other'. Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme [69] ‑ [70].
Applying these principles, I conclude that the proper interpretation of the wording of s 59(3) is that, to make the wording consistent with subsection (1), the wording 'the person has caused the death of another person' should be interpreted as meaning 'the incident in which the accused was involved caused the death of another person'. This interpretation would then make sense of the provision contained in subsection (1) that the penalty a person is liable for on committing the offence is the penalty in subsection (3). It would have the consequence that a magistrate dealing with an offence under s 59(1)(b) should treat the maximum penalty of imprisonment to be 10 years with a jurisdictional limit of 3 years: Wilshire v Mafi. This is, in fact, the approach that was taken by the magistrate when sentencing Mr Winwood.
Counsel on behalf of the respondent submitted that the magistrate had correctly identified the maximum penalty as 10 years' imprisonment and that the summary conviction penalty simply set a jurisdictional limit. Counsel for Mr Winwood submitted that the maximum penalty of imprisonment was 3 years, as per the summary conviction penalty. However, neither counsel addressed the issue of the wording of subsection (3). Although counsel for Mr Winwood contended that the maximum term of imprisonment that could be imposed was 3 years' imprisonment, he did not contend that the magistrate had fallen into error by treating this as a jurisdictional limit. This I believe recognised that from a practical point of view in this case it was unlikely to make any difference. In any event, even if I had concluded the magistrate had fallen into error as to the maximum penalty and resentenced Mr Winwood, I would not have exercised my discretion differently from the magistrate in view of the serious nature of the dangerous driving by Mr Winwood. Details of this manner of driving will be further elaborated on later in this decision.
There is one other matter which I believe I should briefly comment about concerning the magistrate's decision. On two occasions, the magistrate used the language of the repealed s 59(1).
In his reasons for finding Mr Winwood guilty, the magistrate stated:
I'm satisfied beyond a reasonable doubt that the manner of driving by this accused was in fact dangerous to the public and it follows there from and from the concessions made that the manner of driving occasioned the death of Mr Hennessy and I find the charge proven, as indicated, beyond a reasonable doubt (ts 26, 7 December 2010).
The concession made by trial counsel on behalf of Mr Winwood was that the death was occasioned by the incident; that is, the collision (not that the manner of driving occasioned the death).
Again, the magistrate fell into the use of the language of the repealed s 59(1) when sentencing Mr Winwood on 24 January 2011 when he stated:
Its unnecessary to restate the factual findings of this court except to confirm that your manner of driving that occasioned the death of Mr Hennessy was not transitory nor borne out of momentary inattention (ts 3).
It is clear from the magistrate's reasons that he correctly directed himself that, under the existing s 59(1)(b) of the Road Traffic Act, causation was not an element of the charge. His Honour referred, in his reasons for his decision, to the amendments to the Road Traffic Act and the decision of Steytler P in Gibbs' case. Given that the magistrate had correctly directed himself as to the elements of s 59(1) when considering his verdict and had referred to the amendments to s 59(1), in my opinion the magistrate's use on two occasions of the words 'the manner of driving occasioned the death' was a slip. Counsel for the appellant has not relied upon these slips in language as constituting any error on the part of the magistrate.

Comparable cases

It is difficult to obtain in cases such as this any assistance from comparable cases for a number of reasons. Firstly, cases such as this have no tariff because of the wide variety of circumstances in which they occur and the differences in the personal circumstances of the offender: Barron v The State of Western Australia [2010] WASCA 27 [33]; The State of Western Australia v Olive [2011] WASCA 25 [74] (Buss JA). Secondly, as a result of amendments in 2004 to the Road Traffic Act, the elements of an offence under s 59 of the Act have changed. These changes reduce the relevance of sentences imposed prior to the changes to the elements of the offence created by s 59: Hunt v Callaghan [2011] WASC 10 [250] (Jenkins J) (Hunt's case).
In Devine v The State of Western Australia [2010] WASCA 94, the Court of Appeal reviewed cases involving both dangerous driving causing death and manslaughter before the amendments to the Road Traffic Act. Although these cases are of little assistance now, it is perhaps worth noting that even a young first offender has received an immediate term of imprisonment: Eves v The State of Western Australia [2008] WASCA 7; (2008) 49 MVR 259; R v Stebbings (1990) 4 WAR 538; (1990) 12 MVR 553; and Taylor v The State of Western Australia [2009] WASCA 226.
Notwithstanding the difficulty in relying upon comparable cases, both counsel for the appellant and the respondent specifically referred me to a number of cases. The first of these was Taylor. This case has limited value because it was a charge under s 59 prior to amendment where it was an element that the driver caused the death. The offender was convicted after trial of dangerous driving causing death and dangerous driving causing grievous bodily harm. In relation to the charge of dangerous driving causing death, he received a sentence of 26 months. On appeal, this was reduced to 20 months. The offender was aged 18 and had good antecedents. The offender was challenged to a drag race by another driver. During the drag race, the offender reached a speed of 120 km per hour, but then slowed to about 90 km per hour. The speed limit in the area was 80 km per hour. The other vehicle clipped the offender's vehicle, causing it to run off the roadway. The deceased was thrown from the vehicle as she was not wearing a seatbelt and died as a result of her injuries. The speeding was over a short period of time of about 90 seconds. The maximum penalty under the then legislation was 4 years' imprisonment. The Court of Appeal concluded that the driving was not of the most serious kind, or even towards the upper end of the range of possible dangerous driving. However, clearly in that case, the drag racing between the two vehicles was a significant contributing factor to the death of the deceased and, under the legislation at the time, the manner of driving of the offender 'occasioned' the death of the deceased.
A case relied upon by the appellant is the case of Hunt's case which was an appeal against conviction and sentence of a young offender who was convicted in the Magistrates Court for an offence under the current s 59(1)(b) of the Road Traffic Act. The appeal against conviction was dismissed. However, the appeal against sentence was successful and an 18‑month immediate term of imprisonment was reduced to a suspended term of imprisonment of 18 months. In Hunt's case, the offender was 19 years of age. He was the driver of a vehicle with five friends as passengers in the vehicle and one friend in the boot of the motor vehicle (as there was insufficient room for that person in the vehicle). Whilst the vehicle was travelling in a westerly direction in South Terrace, Como, a Hyundai Getz motor vehicle driven by the deceased pulled out of a driveway on the southern side of the roadway and into the path of Mr Hunt's vehicle. A collision occurred which caused the death of the deceased. There were parked vehicles on the southern side of the roadway immediately before the driveway from which the Hyundai Getz exited onto South Terrace. The magistrate found that the offender had an alcohol blood level of 0.077. Further, about 150 m from the crash, the offender was travelling in the order of 100 km per hour. The magistrate accepted evidence that the offender admitted that, at the point of impact, he was doing about 80 km per hour. The prosecution relied upon speed as the sole ground for dangerous driving. Jenkins J concluded that, given the circumstances of the case, it was not open to the magistrate to find that Mr Hunt's manner of driving had resulted in or caused the death of the deceased. It was not an element of the charge. Also she concluded that, on the facts of the case, it had not been proved that the manner of driving resulted or caused the death of the deceased. The offender had no prior convictions and had good antecedents.
Counsel for the appellant submitted that the circumstances of Hunt'scase were more serious than the case of Mr Winwood, as in Hunt'scase the driver was affected by alcohol, was driving at high speed down a suburban road and the driver ought to have anticipated vehicles pulling out onto the roadway from private driveways. Counsel for the respondent submitted that the circumstances in Hunt'scase were less serious because:
(a)In Hunt'scase the offender was speeding for no apparent reason, whereas Mr Winwood was speeding as a result of an intent to pursue another vehicle over a lengthy period of time;
(b)In Hunt'scase the offender had limited opportunity to observe the Hyundai Getz due to obstruction to the offender's view. On the other hand, Mr Winwood should have seen the deceased, Mr Hennessy, right up to the point of collision if Mr Winwood had been keeping a proper lookout.

The submissions highlight the difficulty of comparing cases, as there are differences in the manner of driving.
Notwithstanding the manner of driving and the sentence imposed in Hunt'scase, one decision of a single judge is incapable of establishing a standard of sentencing generally observed with respect to offences of this type. Of course, decisions on sentencing should be reasonably consistent, allowing for the fact that the exercise of discretionary judgment can never be uniform, given the varying circumstances: Wong v The Queen (2001) 207 CLR 584. Taking into account these discretionary features of sentencing, the nature of consistency sort is the application of the relevant principles: Hili v The Queen [49].
In my opinion, a number of relevant principles apply to sentencing of offences under s 59(1)(b) which should be consistently taken into account.
Firstly, notwithstanding changes in the legislation, there is still a need for deterrent sentences to meet the seriousness of the offence and deter dangerous driving which remains an element of the new offence: Hunt's case [261]. At least in this regard, it is consistent with the approach taken under the former s 59: Wood v The Queen [2002] WASCA 95 [110] (Miller J). This is even though the prosecution may not have established on the evidence that the offender caused the incident which lead to the death of another person.
That general deterrence remains important, is consistent the Second Reading Speech in respect of the amending Act made by the then Attorney General Mr Jim McGinty (Western Australia, Parliamentary Debates, Legislative Assembly, 23 June 2004, 4184 ‑ 4185):
The amendments to the Road Traffic Act 1974 contained within this Bill aim to address deficiencies in the law relating to dangerous driving causing death or serious injury. The deficiencies in the law were highlighted by the very sad death in August last year of Miss Jess Meehan, a 10-year-old girl. Jess Meehan died on 8 August 2003 after being hit by a car driven by an unlicensed and drunken driver. The police subsequently charged the driver with driving under the influence of alcohol and driving whilst under suspension and without a valid licence, and the minimum fine was imposed. The police took the view that a more serious charge, such as dangerous driving causing death, contrary to s 59 of the Road Traffic Act, could not be sustained upon the available evidence. Because of the deficiencies in s 59 of the Road Traffic Act, in particular, its requirement for a causative nexus to be established between the driver's intoxication and the collision causing death, the penalties imposed upon the driver involved in the incident that took Jess Meehan's life failed to address the true seriousness of his conduct. Justice was not served.
Secondly, it is still relevant to consider the extent the manner of driving contributed to the incident that caused the death of the deceased. As a matter of common sense, the greater the offender's responsibility for the incident which caused the death of the deceased, the greater the offender's culpability. This was recognised by Jenkins J in Hunt's case, where her Honour took into account that there was no evidence upon which the sentencing magistrate could have found that the speed of the offender's vehicle had resulted in or caused the death of the deceased [257]. This appears to be on the basis that although the offender was unable to prove he did not contribute to the incident so as to have a defence under s 59B(6) of the Road Traffic Act, it remained speculative as to whether in fact the manner of driving contributed to the death of the deceased, when the deceased's vehicle had pulled out into the path of the offender's vehicle.
Thirdly, an offence under s 59(1)(b) does not necessarily lead to an immediate term of imprisonment. Under s 6(2) of the Sentencing Act, the seriousness of the offending requires consideration of the following:
(a)the statutory penalty for the offence;
(b)the circumstances of the commission of the offence, including the vulnerability of any victim of the offence;
(c)any aggravating factors; and
(d)any mitigating factors.
In Hunt's case, when Jenkins J weighed up these factors, she concluded that it was appropriate to suspend the term of imprisonment. In assessing the seriousness of Mr Winwood's offending, it is necessary to consider these same factors.

Seriousness of the offending

The manner of driving of Mr Winwood on the magistrate's finding was 'speed in excess of 70 ‑ 75 km per hour and well in excess of the posted speed limit of 60 km per hour' and whilst pursuing another vehicle. The finding of the magistrate as to speed appeared to be based upon the evidence of a Mr Christopher Rodwell (the driver of one of the pursuing vehicles), who gave evidence that he was driving in a southerly direction in Blair Street at a speed somewhere between 70 km ‑ 75 km per hour and Mr Winwood's vehicle was pulling away from him. The evidence of Mr Rodwell was supported by a passenger in Mr Rodwell's vehicle, a Mr Stokes. The aggravating feature of the speed at which Mr Winwood's vehicle was travelling was that it occurred in the context of pursuing Mr Gumbrell, which led the magistrate to conclude that Mr Winwood failed to see Mr Hennessy until the moment the vehicle struck Mr Hennessy.
The magistrate made no specific finding that Mr Winwood caused the death of Mr Hennessy. However, the magistrate did find that the manner of driving resulted in Mr Hennessy's death, suggesting that it was a contributing factor to the incident that caused the death of Mr Hennessy. In collision cases involving speed, it is often speculative as to the extent the speed caused or contributed to the collision, as it is difficult to ascertain whether, at a slower speed, a collision might be avoided. Certainly, high speed increases the risk of a collision occurring. The magistrate did acknowledge that due to Mr Hennessy's level of intoxication and probably taking messages on his mobile telephone, he was not taking the usual caution in crossing the road. The magistrate accordingly took account of the extent Mr Hennessy's behaviour was also a contributing factor to the incident.
In my opinion, it is significant that Mr Winwood acknowledged to Senior Constable Baker that Mr Winwood saw Mr Hennessy on the median strip. There was no evidence that Mr Winwood's vision was obstructed in anyway as he approached Mr Hennessy. The magistrate concluded that the reason Mr Winwood did not see Mr Hennessy until impact was because Mr Winwood was focused on his pursuit of Mr Gumbrell's vehicle. The manner of driving of Mr Winwood was not towards the upper end of seriousness. However, to continue the pursuit even though Mr Winwood had seen Mr Hennessy on the median strip, entitled the magistrate to conclude Mr Winwood's manner of driving was serious. This was particularly in light of the length of the pursuit through built‑up areas which preceded the collision. Mr Winwood had ample opportunity to consider his dangerous manner of driving but persisted with it even after seeing Mr Hennessy. The continuing pursuit at speed was hoonish in nature. It made it more likely that a pedestrian such as Mr Hennessy might make a misjudgement as to how long he had to cross the road safely before the advance of Mr Winwood's vehicle. Notwithstanding the risk that the presence of Mr Hennessy presented and the need for caution, Mr Winwood continued to drive in a dangerous manner and without proper lookout to the extent that he did not observe at all Mr Hennessy crossing the south bound lanes until just on impact.
In my opinion, the warning Mr Winwood had of the presence of Mr Hennessy on the median strip distinguishes this case from Hunt's case where there was no warning of the Hyundai Getz pulling out into the path of the offender's vehicle.
The personal circumstances of Mr Winwood have been referred to earlier in this decision. The magistrate clearly took them into account. To send a young first offender to an immediate term of imprisonment is clearly a penalty of last resort. However, regrettably these types of offences are often committed by young persons who often do not have a history of prior offending. It is disturbing that, despite the publicity given to the road toll, the psychological report states that Mr Winwood acknowledged that it was common practice for young people in Bunbury to engage in pursuits of other vehicles and that prior to the incident with Mr Hennessy, Mr Winwood had not thought about the risk involved. This underlines that in such circumstances, a major consideration in sentencing is general deterrence.

Conclusion on ground 1

As stated earlier in this decision, the appeal court cannot intervene simply because the court concludes that it would have imposed a different sentence. Cases such as this are always very difficult, particularly because, as a result of the incident, a death has occurred. Respect must be given to the discretionary nature of sentencing. In Barron v The State of Western Australia Owen J at stated as follows:
[I]t is difficult to identify sentences that are commonly imposed for the offence of dangerous driving occasioning death. This is quintessentially an area in which the discretion residing in the first instance judicial officer must be accorded due respect [47].
In Flynne v Goddard [2009] WASC 92 McKechnie J commented as follows:
Magistrates Courts are the main trial courts of criminal trial in this State and deal with almost all of the traffic offences, including summary trials and convictions for dangerous driving causing death. In consequence, a magistrate is in a good position to gauge when a sentence of general deterrence may be required for specific offences, whether regionally or, as here, more widely [16].
Having considered all the circumstances, I am not satisfied the sentence was manifestly excessive. It was certainly at the upper end of the scale, considering there was no alcohol involved and the antecedents of Mr Winwood, but given the persistent dangerous driving both before and after Mr Winwood saw Mr Hennessy on the median strip, I conclude the penalty was not manifestly excessive. Accordingly ground one of the appeal is dismissed.
On ground 1, I grant leave but for the above reasons the appeal is dismissed.

Ground 2

Ground two of the appeal is based upon a contention that the magistrate placed the offence under s 59(1)(b) into a category of offences where general deterrence will always prevail over matters personal to the offender so as to make a suspended sentence inappropriate.
In my opinion, this ground has no merit. The magistrate stated as follows:
In my respectful view, such is the circumstance of this case that deterrence, general deterrence, must now outweigh matters that are personal to you. (emphasis added)
It is clear from these remarks the magistrate concluded that the sentence of immediate imprisonment was appropriate based upon the circumstances of the case and not some overriding principle that such cases must always be dealt with by way of an immediate term of imprisonment.
It is clear that the magistrate when considering whether to suspend the sentence followed the two‑step approach suggested by the High Court in Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321. The magistrate also made specific reference to the decision of Long v Mayger [2004] WASCA 41 (Steytler J) which dealt with the factors that should be taken into account in deciding whether a suspended term of imprisonment ought to be imposed. Applying these principles, the magistrate took into account all relevant factors and decided it was not appropriate to suspend the sentence.
In my opinion, the sentencing remarks of the magistrate do not reveal any arguable error as complained of in ground 2 and this ground has no reasonable prospect of succeeding. Accordingly, I refuse leave to appeal on this ground. Even if leave were to be given I would dismiss this ground of appeal.