Wood v The Queen
[2002] WASCA 95
•23 APRIL 2002
WOOD -v- THE QUEEN [2002] WASCA 95
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2002] WASCA 95 | |
| COURT OF CRIMINAL APPEAL | |||
| Case No: | CCA:46/2002 | 11 APRIL 2002 | |
| Coram: | WALLWORK J MURRAY J MILLER J | 23/04/02 | |
| 41 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal granted Appeal dismissed | ||
| A | |||
| PDF Version |
| Parties: | SHARON PATRICIA WOOD THE QUEEN |
Catchwords: | Criminal law and procedure Sentencing Dangerous driving causing death Vehicle running off road through fatigue of driver Prior good character of offender Relevance of sentencing views of victim's widow Relevance of Crown submissions on sentence Whether sentence of imprisonment the only appropriate disposition |
Legislation: | Crimes Act 1900 (NSW) s 52A Criminal Code, s 19A Road Traffic Act 1974 (WA), s 59, s 62 Sentencing Act 1995 (WA), s 6(4), s 7, s 8, s 39 |
Case References: | Ainsworth v D (A Child) (1992) 7 WAR 102 Cameron v The Queen (2002) 76 ALJR 382 Dinsdale v The Queen (2000) 202 CLR 321 Director of Public Prosecutions (Cth) v Carter [1998] 1 VR 601 Hartland v Umbagai (1999) 30 MVR 269 House v The King (1936) 55 CLR 499 Inge v The Queen (1999) 199 CLR 295 James v The Queen (1985) 14 A Crim R 364 Jiminez v The Queen (1992) 173 CLR 572 Kaighin v The Queen (1990) 1 WAR 390 Lowndes v The Queen (1999) 195 CLR 665 Parsons v The Queen [2000] WASCA 407 Pearce v The Queen (1998) 194 CLR 610 Police v Cadd (1997) 69 SASR 150 R v Guilfoyle [1973] 2 All ER 844 R v Jurisic (1998) 101 A Crim R 259; (1998) 45 NSWLR 209 R v Olbrich (1999) 199 CLR 270 R v Peterson [1984] WAR 329 R v Stebbings (1990) 4 WAR 538 Ryan v The Queen (2001) 75 ALJR 815 Smith v The Queen [1976] WAR 97 Veen v The Queen (No 2) (1988) 164 CLR 465 Woods v Multi-Sport Holdings Pty Ltd [2002] HCA 9 Boswell (1984) 79 Cr App R 277 Etrelezis v The Queen [2001] WASCA 327 Hartland v Umbagai (1999) 30 MVR 269 Plenty v Bargain [1999] WASCA 67 R v Hicks (1987) 5 MRV 1 R v Hudson (1979) 1 Cr App R(S) 65 R v Johnston (1985) 38 SASR 582 R v Liddington (1997) 18 WAR 394 R v Millar [2002] WASCA 54 R v Pinder (1992) 8 WAR 19 R v Tanner (1987) 6 MVR 371 R v Van Schayk, unreported; CCA SCt of WA; Library No 2442, 13 October 1978 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : WOOD -v- THE QUEEN [2002] WASCA 95 CORAM : WALLWORK J
- MURRAY J
MILLER J
- Applicant
AND
THE QUEEN
Respondent
Catchwords:
Criminal law and procedure - Sentencing - Dangerous driving causing death - Vehicle running off road through fatigue of driver - Prior good character of offender - Relevance of sentencing views of victim's widow - Relevance of Crown submissions on sentence - Whether sentence of imprisonment the only appropriate disposition
Legislation:
Crimes Act 1900 (NSW) s 52A
Criminal Code, s 19A
Road Traffic Act1974 (WA), s 59, s 62
Sentencing Act 1995 (WA), s 6(4), s 7, s 8, s 39
(Page 2)
Result:
Leave to appeal granted
Appeal dismissed
Category: A
Representation:
Counsel:
Applicant : Mr A E Monisse
Respondent : Mr R E Cock QC
Solicitors:
Applicant : Wojtowicz Kelly
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Ainsworth v D (A Child) (1992) 7 WAR 102
Cameron v The Queen (2002) 76 ALJR 382
Dinsdale v The Queen (2000) 202 CLR 321
Director of Public Prosecutions (Cth) v Carter [1998] 1 VR 601
Hartland v Umbagai (1999) 30 MVR 269
House v The King (1936) 55 CLR 499
Inge v The Queen (1999) 199 CLR 295
James v The Queen (1985) 14 A Crim R 364
Jiminez v The Queen (1992) 173 CLR 572
Kaighin v The Queen (1990) 1 WAR 390
Lowndes v The Queen (1999) 195 CLR 665
Parsons v The Queen [2000] WASCA 407
Pearce v The Queen (1998) 194 CLR 610
Police v Cadd (1997) 69 SASR 150
R v Guilfoyle [1973] 2 All ER 844
R v Jurisic (1998) 101 A Crim R 259; (1998) 45 NSWLR 209
R v Olbrich (1999) 199 CLR 270
R v Peterson [1984] WAR 329
R v Stebbings (1990) 4 WAR 538
(Page 3)
Ryan v The Queen (2001) 75 ALJR 815
Smith v The Queen [1976] WAR 97
Veen v The Queen (No 2) (1988) 164 CLR 465
Woods v Multi-Sport Holdings Pty Ltd [2002] HCA 9
Case(s) also cited:
Boswell (1984) 79 Cr App R 277
Etrelezis v The Queen [2001] WASCA 327
Hartland v Umbagai (1999) 30 MVR 269
Plenty v Bargain [1999] WASCA 67
R v Hicks (1987) 5 MRV 1
R v Hudson (1979) 1 Cr App R(S) 65
R v Johnston (1985) 38 SASR 582
R v Liddington (1997) 18 WAR 394
R v Millar [2002] WASCA 54
R v Pinder (1992) 8 WAR 19
R v Tanner (1987) 6 MVR 371
R v Van Schayk, unreported; CCA SCt of WA; Library No 2442, 13 October 1978
(Page 4)
1 WALLWORK J: The background to this application for leave to appeal against sentence is set out in the reasons for judgment of Miller J.
2 In 1988 the Australian Law Reform Commission produced its Report on Sentencing. At par 55 of that Report it is stated:
"In ALRC 15 the Commission recommended that imprisonment should be the punishment of last resort, that is, a court should not impose imprisonment as a punishment if some other sanction is appropriate. In 1982 the Crimes Act 1914 (Cth) was amended to give effect to this recommendation. There has been considerable support for the general principle that imprisonment be the measure of last resort. It is clearly accepted by governments throughout Australia. …"
3 Prior to the abovementioned Report, and after reference to the Commission's Interim Report to the same effect, Burt CJ in James v The Queen (1985) 14 A Crim R 364 said:
"It is now, I think, accepted everywhere that imprisonment is a sentence of last resort by which I mean in the terms of the Law Reform Commission's Interim Report on Sentencing of Federal Offenders:
'…that so far as is consistent with the protection of society, courts should not resort to the use of imprisonment unless no other sanction can achieve the objectives contemplated by law.'
And in 1982 this opinion was accepted and acted upon by the Commonwealth Parliament enacting s 17A(1) of the Crimes Act 1914 by which:
'A Court shall not pass a sentence of imprisonment on any person for an offence against the law of the Commonwealth, or of the Australian Capital Territory or an external Territory that is prescribed for the purposes of this section, unless the Court, after having considered all other available sentences, is satisfied that no other sentence is appropriate in all the circumstances of the case.' "
(Page 5)
- "I would adopt those criteria at least to indicate the correct approach and to indicate in general terms the matters relevant to the question to be decided but I would add, and I think it to be important, that in the application of those criteria one must always have regard to the character and physical and mental condition of the person to be sentenced and, indeed, to all things personal to him. Compare s 20(1) of the Powers of Criminal Courts Act 1973 (Imp).
And it is also important, I think, to bear in mind that the question is not whether the person to be sentenced has committed an offence which can be said to be "deserving of" imprisonment, in the sense that without considering the alternatives it would sustain such a sentence. The question is whether in all the circumstances no other sentence is appropriate."
5 At 366 His Honour continued:
"It was a serious offence [An indecent assault upon a child]. It was, I think, an offence calling for a deterrent punishment. But on the other hand, it was a first offence committed by a man aged 41. There is no reason to suppose that it will be repeated by him and in argument this was accepted by counsel for the Crown whose end and central submission was that imprisonment was the only appropriate sentence because the offence called 'for the use of the most highly deterrent form of disposition known to the criminal law'. In that submission counsel was specifically speaking of a general deterrence, that is to say, of the deterrence of persons other than the appellant as the Crown accepted 'the proposition that this person does not need personal deterrence as of today.' As to that, in my opinion, in a case such as this, a sentence other than imprisonment cannot be said to be inappropriate upon the single ground as asserted, and it may not be the fact, that it will not sufficiently deter others from committing a like offence." [my words in brackets]
6 In my opinion Burt CJ's words apply to this case. It is acknowledged by all that the offence by the appellant was a serious offence. But as Burt CJ said, that is not the end of the matter.
7 In this case the learned sentencing Judge said:
(Page 6)
- "As to general deterrence condign punishment is necessary. The circumstances of this offending fall into the more serious category as explained in the Guilfoyle case. Whether it is at the low end of that category or the high end is hardly relevant.
It would only be in exceptional circumstances that a custodial sentence was not imposed."
8 In my opinion and with respect, that conclusion is not in accord with the above comments of Burt CJ. Further there is an error in the second last sentence.
9 Burt CJ's comments were put into effect in this State in 1988 by the insertion into the Criminal Code of s 19A which read as follows:
Imprisonment as sentence of last resort
"19A(1) Where a person is convicted of an offence punishable by imprisonment and the court has an option whether or not to imprison the offender the court shall consider -
(a) the seriousness of the offence;
(b) the circumstances of the commission of the offence;
(c) the circumstances personal to the offender; and
(d) any special circumstances of the case,
and shall not imprison the offender unless it considers that no other form of punishment or disposition available to the court in the case is appropriate.
(2) The failure of a court to comply with subsection (1) does not invalidate any sentence or order imposed or made by the court."
10 When the Sentencing Act 1995 (WA) was later enacted, s 6(4) provided:
"A court must not impose a sentence of imprisonment on an offender unless it decides that -
(Page 7)
- (a) the seriousness of the offence is such that only imprisonment can be justified; or
(b) the protection of the community requires it."
11 That is the law in this State today and it is in accord with Burt CJ's comments which are referred to above.
12 It is relevant to the considerations in this case that after the tragedy had occurred the appellant answered questions of the police officers, in part as follows:
"Do you think it was safe for you to drive considering that you never had any sleep for that period of time? --- No, but I wasn't feeling tired. I just wanted to get home.
So given that you have a general feeling or a poor feeling with your gastro and so on and the sneezing and you extend your time when you haven't slept, do you think you should have been driving? --- No.
Why don't you think you should have been driving? --- Because in reality it's not nice to drive. It normally causes accidents. I mean, it's - I'm normally a very considerate driver.
13 These comments were repentant comments made by the appellant after she had realised that she had been responsible for the death of the deceased man. They revealed her attitude at that time.
14 It is important when considering the appropriate punishment for this offence, that there has been no suggestion by anyone that the appellant is not generally law abiding. She is a young woman with an extremely good background. Prior to this offence on 24 April 2000 she had studied and been employed. She had no convictions of any kind and was living at home with her family. Before the time her vehicle left the road and struck the deceased she had not been drinking or taking drugs of any kind. Her error was in driving home when she was too tired, although she told the police officers she had not felt tired at the time.
15 Prison should be reserved for people who have committed serious offences in reprehensible circumstances. Persons with no prior contact with the law, who are good citizens, should not be gaoled for making a mistake unless it is absolutely necessary in the community's interests. In my view, that could not be said to be the case here.
(Page 8)
16 In Woods v Multi-Sport Holdings Pty Ltd [2002] HCA 9 (7 March 2002) McHugh J said at [68]:
"In Jones v The Queen, Kirby J referred to extraneous material to explain why children may delay in complaining about sexual assault. Similarly, in Ryan v The Queen, I referred to psychiatry journals and reports in discussing sentencing approaches for paedophiles. In Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd, Callinan J referred extensively to newspapers, books, lectures, academic papers, the journalists' Codes of Ethics and a Senate Committee Report to show 'the realities of the modern publishing, entertainment and media industries, as well as the activities of members of the Executive branch of government in this country.'
Courts have also used published statistics to resolve issues vital to the resolution of litigation and to inform themselves on policy issues."
17 Applying that approach it is relevant to the disposition of this appeal to note that in March 1997 Professor R W Harding of the Crime Research Centre of The University of Western Australia wrote with respect to imprisonment in Western Australia:
"There has been a substantial and steady increase since 1990 in the percentage of persons found guilty who are sentenced to imprisonment - from 47.0% to 57.5%. Moreover, the median sentences have either increased (particularly for crimes of violence) or remained about constant.
Analysis of the data thus confirms that there has been an historical shift towards somewhat more punitive sentencing during the 1990s, yet without descending into sheer oppressiveness. The consequence of this can be seen in prison numbers - an average daily population of 1,620 in 1990 as against about 2,300 today. That is a rate of 175 per 100,000 adult population, which is the highest by far of any Australian State."
18 Further, in the Australian Newspaper of 27 March 2002 it was reported that the rate of imprisonment per 100,000 adult population at 30 June 2001 had risen in Western Australia to over 200 compared to a rate in Victoria of under 100 and in South Australia of just over 100. In Queensland and New South Wales, the rate was well under 200.
(Page 9)
19 A question arises as to whether in this State terms of imprisonment are imposed too often when other dispositions, such as suspended terms of imprisonment, can be used to mark the disapproval by the community of certain conduct without unnecessarily sending people who have made mistakes into the prison system with all the disastrous consequences to their lives, self esteem and personal relationships which result from imprisonment.
20 In Director of Public Prosecutions (Cth) v Carter [1998] 1 VR 601 which decision concerned a prosecution appeal against a suspended sentence, Winneke P said at 607:
"The authorities make it clear that it is wrong to assume that a sentence of imprisonment, albeit wholly suspended, does not play a role in deterring others: Elliott v Harris (No. 2) (1976) 13 SASR 516 at 527, per Bray CJ; R v Gillan (1991) 100 ALR 66 at 71; R v P (1992) 39 FCR 276 at 285.
In the circumstances, I am not persuaded that his Honour failed to give sufficient weight to principles of general deterrence. It follows, accordingly, that it is my opinion that this appeal should be dismissed."
21 In Professor Fox and Frieberg's text, Sentencing State and Federal Law in Victoria (1999), the statistics shown at 898 reveal that in 1994, 1995 and 1996 custodial sentences were imposed in that State for causing death by culpable driving. In 1994 10 per cent of those sentences were suspended; in 1995 and 1996 the percentage of sentences suspended were 42 per cent and 46 per cent respectively.
22 In Ainsworth v D (A Child) (1992) 7 WAR 102 where the facts given by the prosecution were that:
"The defendant drove east on the Great Eastern Highway at which is believed to have been speeds between 60 to 80 kph in a 60 kph zone. The defendant became stationary at red traffic control lights at the intersection of Cornwall Street. On that traffic light changing to green he accelerated heavily causing the wheels to spin and the tyres to screech emitting smoke from the rear wheels. He drove through the intersection still travelling in an easterly direction in the right hand lane in the centre of the carriageway. Approximately 175 metres further on Great Eastern Highway there was a line of vehicles stationary waiting to execute a right hand turn into Durham
(Page 10)
- Street. The defendant drove the vehicle towards the stationary vehicles and when near to the rear vehicle swerved sharply into the left hand lane. As a result of swerving into the left hand lane the vehicle driven by the defendant collided with a Suzuki motorcycle which was travelling in an easterly direction in the left hand lane near the curb. As a result of the collision the motorcycle struck the curb on the left side before striking a wooden SEC power pole and crashing to the ground. At some stage of the collision the fuel tank on the motorcycle was ruptured, causing fuel to leak out which covered the motorcycle and the rider before igniting. The rider of the motorcycle was thrown from the machine into the ground still on fire from the leaking fuel. The defendant did not stop at the scene of the accident but drove away at a high speed. As a result of the collision the rider suffered serious injuries which were later found to be of a grievous bodily harm nature. I believe sir it's a broken leg, elbow, burns to the left lower leg."
23 The defendant in that case was only 18 years of age. At 116 Malcolm CJ discussed Smith v The Queen [1976] WAR 97. His Honour said that in that decision at 107 Jackson CJ had indicated that the general sentencing in Australia and England for the offence of dangerous driving causing death, as that offence was described in s 59(1) of the Road Traffic Act showed that sentences of between 3 and 9 months' imprisonment appeared to be most common.
24 His Honour then referred to R v Guilfoyle [1973] 2 All ER 844 where Lawton LJ at 845 spoke of the two categories of cases. The Chief Justice said that the facts in Ainsworth (supra) fell into the second or more serious category compounded by the fact that drugs were a contributing factor. He said:
"In Smith v The Queen the sentence imposed was imprisonment for 12 months in respect of a case of dangerous driving causing death under s 59(1) of the Road Traffic Act which the Court of Criminal Appeal held fell into the second category."
25 Importantly Malcolm CJ said at 116:
"In my view, had this offence of dangerous driving causing grievous bodily harm been committed by an adult, it may well have justified a sentence of imprisonment of the order of 12 to
(Page 11)
- 18 months, subject to reduction or discounting on account of mitigating factors."
26 There were very significant mitigating factors in this case.
27 It can be seen from the above facts that the facts in the present case so far as reckless conduct is concerned are not in the same class as those in Ainsworth. In this case the learned Judge said that speed was not involved and there had been no intoxication or substance abuse. There had not been erratic driving save for the veering off the road. His Honour said that competitive driving or showing off were not a factor. There also was not heavy traffic or an ignoring of warning or escaping police pursuit.
28 In the present case prosecuting counsel advised the Judge:
"The Crown understands that just because circumstances fit within the second more serious category it is not necessarily the case that one would go to prison, serve an immediate term of imprisonment, and therefore because the Crown places this matter not at the upper end of that second category the Crown does not submit that the seriousness of the offence is such that only imprisonment can be justified and relevantly of course although not mentioned yet by the Crown, seriousness of the offence must take into account the fact that at the time of this offence Ms Wood was 22 years of age and of course her record is relevant to that."
29 In my view, and with respect, the prosecuting Counsel's submissions were correct and this offence did not necessitate immediate imprisonment.
30 The learned Judge found that in the 23 hours before the accident the appellant had had no sleep at all. His Honour recorded that the appellant had no prior record of criminal or traffic offences and had only lost three or four demerit points in five years. He said it was not disputed that the appellant was of good character. His Honour referred to the previous decisions which are referred to earlier in these reasons, being R v Smith, Ainsworth v D and R v Guilfoyle (supra).
31 His Honour came to the conclusion that this case was not a case of momentary inattention or misjudgment but was a case of a person "who has shown a selfish disregard for the safety of other road users or has acted with a degree of recklessness." His Honour then said:
(Page 12)
- "You well knew that when you set out to drive your car home that Easter morning that you were in such a physical state such that you ought not to have been driving."
32 It is important to remember that the appellant told the police officers that she was not feeling tired before she set out to drive home.
33 His Honour then said that there had been no suggestion that the applicant was speeding and no evidence of alcohol or substance abuse. He also said that there was no competitive driving or showing off. That the journey would have taken some 15 to 20 minutes and there was no question of the ignoring of any warning or of escaping police pursuit. His Honour said:
"Fatigue as a factor contributing to fatalities on our roads is no less significant than alcohol or speed. A third of fatalities are fatigue related. Fatigue increases the crash risk."
34 The learned Judge said:
"Despite your assertions that you were not tired, you may not have felt tired in the environment where you were interacting with those around you. The expert evidence would suggest otherwise. That tiredness was probably unmasked in the change of environment of cruising along the freeway on your way home alone in your car at a time when you would or may normally have been asleep."
35 His Honour said it was unlikely that the appellant would offend in this way again. He said:
"As to general deterrence condign punishment is necessary. The circumstances of this offending fall into the more serious category as explained in the Guilfoyle case. Whether it is at the low end of that category or the high end is hardly relevant. It would only be in exceptional circumstances that a custodial sentence was not imposed."
36 In my opinion it is most important whether or not the offending conduct was at the low end of the more serious category or at the high end. As stated above there was error in saying "Whether it is at the low end of that category or the high end is hardly relevant."
(Page 13)
37 After referring to some of the factors and saying that in this case, the factors personal to the appellant were outweighed by the seriousness of the offence, the aggravating factors and the need for general deterrence to be endorsed, the learned Judge said he had come to the view, "that a sentence of imprisonment to be served immediately is the only appropriate sentencing option available to me."
38 It is my view that the Judge erred in his approach to the sentencing of the appellant by not giving enough weight to her good prior record, relative inexperience, and the lack of aggravating factors such as drink or speed. The appellant was also not in the same category as say a professional driver who takes a calculated risk of driving whilst tired. His Honour did not give sufficient weight to the possibility of a suspended sentence. The appropriate disposition of this case would have been to suspend the sentence imposed. That would have indicated the seriousness of the offence without unnecessarily sending the appellant to prison.
39 I would allow the appeal and order that the sentence be suspended for 18 months.
40 MURRAY J: This is, in my opinion, a most difficult case, in respect of which I have had the advantage of the different views of Wallwork and Miller JJ.
41 The applicant was convicted after trial by jury in the District Court of the offence for which she was indicted, dangerous driving causing death contrary to the Road Traffic Act 1974 (WA), s 59(1). The trial Judge, Groves DCJ, went on to hear the applicant's plea in mitigation. Counsel submitted that a non-custodial disposition would be appropriate and said in response to questioning by the trial Judge that the applicant would have the capacity to pay a substantial fine given time to do so.
42 The Crown prosecutor responded by submitting that the case fell within the more serious category of offences of dangerous driving causing death. That was a reference to the fact that in Smith v The Queen [1976] WAR 97 at 107 this Court referred with approval to the then recent decision of the English Court of Appeal in R v Guilfoyle [1973] 2 All ER 844 where at 845 Lawton LJ said:
"Cases of this kind fall into two broad categories; first, those in which the accident has arisen through momentary inattention or misjudgment, and secondly those in which the accused has driven in a manner which has shown a selfish disregard for the
(Page 14)
- safety of other road users, of his passengers, or with a degree of recklessness. A subdivision of this category is provided by the cases in which an accident has been caused or contributed to by the accused's consumption of alcohol or drugs."
43 That proposition was again referred to with apparent approval by Malcolm CJ in Ainsworth v D (A Child) (1992) 7 WAR 102 at 116. However, this Court has not bound itself as a general proposition to such a dichotomy of culpability in relation to sentencing for cases of dangerous driving. In my opinion, while the remarks quoted above usefully focus attention upon the driving behaviour of the offender when considering his or her culpability for sentencing purposes, the division of cases into broad categories may, if one is not careful, obscure the essential task of determining where to place the particular case, in the circumstances of the commission of the offence, into a hierarchy of seriousness. The problem is not dissimilar to the difficulty which may arise in a drug trafficking case where a categorisation of cases into those where the offender may properly be described as a courier and those where he or she is to be regarded as a principal in the criminal enterprise is often employed: cfR v Olbrich (1999) 199 CLR 270.
44 The sort of misunderstanding which may arise is, in my opinion, revealed by the remarks of the prosecutor in this case when he went on to say that it was the view of the Crown that the applicant had displayed a degree of recklessness in setting out to drive and in driving the car when she knew at the outset that she was in such a physical state of fatigue that she should not have been driving. So far the submission was clearly supportable, but counsel added:
"The Crown does accept, however, that although this case, according to the Crown, falls within the second category, the more serious category of dangerous driving causing death, it is not towards the upper end which on the authorities concerns itself with voluntary consumption of drugs and alcohol principally."
- Counsel went on to say that because the Crown did not place this offence at the upper end of the more serious category of offences, "the Crown does not submit that the seriousness of the offence is such that only imprisonment can be justified".
45 It is important, in my opinion, to consider why the voluntary consumption of alcohol and drugs is specifically mentioned when
(Page 15)
- discussing the seriousness of an offence of this kind. It is, I think, because by that behaviour the offender is voluntarily reducing his or her capacity at all times while driving to exercise the degree of care and skill which the law demands of road users for the protection and safety of others with whom drivers may come into contact who may be put at risk by their driving behaviour.
46 The commission of an offence of dangerous driving does not of itself involve any wilful misbehaviour in the driving of a motor vehicle but it will be a more serious offence of dangerous driving if the offender has deliberately behaved in a way calculated to reduce their capacity to drive safely and to increase the likelihood of dangerous behaviour. To my mind, knowingly to drive while in a state of real fatigue is also behaviour of that kind, which will increase the seriousness with which an offence of dangerous driving caused by that fatigue is regarded by the Court.
47 In Jiminez v The Queen (1992) 173 CLR 572, the High Court was concerned with a case of dangerous driving causing death where the driver had fallen asleep at the wheel. The Court made the point that the relevant period of dangerous driving would be that which immediately precedes the driver falling asleep because after that there is no voluntary act of driving at all. Six of the seven Judges who comprised the Court in that case gave a joint judgment. At 579 – 580 their Honours said:
"… for a driver to be guilty of driving in a manner dangerous to the public because of his tired or drowsy condition that condition must be such that, as a matter of objective fact, his driving in that condition is a danger to the public. … it will be necessary to consider how tired the driver was. If there was a warning as to the onset of sleep that may be some evidence of the degree of his tiredness. And the period of driving before the accident and the amount of sleep that he had earlier will also bear on the degree of his tiredness. But so far as 'driving in a manner dangerous' is concerned, the issue is not whether there was or was not a warning of the onset of sleep, but whether the driver was so tired that, in the circumstances, his driving was a danger to the public."
48 In that case, their Honours went on to consider the availability of the defence that the defendant honestly and reasonably believed that it was safe for him to drive, but no such matter arose in this case and the seriousness of the case was made manifest by the conclusion of Groves DCJ that, whether or not the applicant had previously had a
(Page 16)
- warning of drowsiness or the onset of sleep, she well knew that because of her tiredness she might fall asleep and she should not be driving.
49 Groves DCJ was not persuaded by the Crown's submissions and ultimately, after considering the case for a period of nearly three weeks, his Honour sentenced the applicant to a term of 18 months imprisonment to be immediately served. His Honour gave extensive reasons in his remarks upon sentence for his conclusion that no other disposition than a sentence of imprisonment to be served immediately would be an appropriate sentencing disposition. From that decision the applicant seeks leave to appeal to this Court, contending on the grounds which Miller J has set out that service of the sentence of imprisonment should be suspended or, alternatively, a fine should be imposed.
50 It is a common practice to cite the decision of the High Court in Lowndes v The Queen (1999) 195 CLR 665 at 679[38] for the proposition that on an appeal against sentence the question for this Court is whether the sentence imposed involves error of a kind warranting appellate interference with a discretionary judgment. It is trite to say that it would be an irrelevant distraction for this Court to have regard to its own view of an appropriate disposition had the members of this Court been the sentencing Judge.
51 In Pearce v The Queen (1998) 194 CLR 610 at 624[46], McHugh, Hayne and Callinan JJ said:
"Sentencing is not a process that leads to a single correct answer arrived at by some process admitting of mathematical precision. It is, then, all the more important that proper principle be applied throughout the process."
52 In Ryan v The Queen (2001) 75 ALJR 815 at 838[136], Hayne J said:
"It is because sentencing, being discretionary, admits of no single 'correct' answer, that the task of intermediate appellate courts, on an appeal against sentence, is to examine whether the appellant makes good the allegation that the sentencer made an error of principle, not whether they agree with the sentence imposed."
53 In this case it is said in support of the appeal that the error of Groves DCJ can be discerned simply from the fact that the sentence imposed was manifestly excessive. If that proposition is made good,
(Page 17)
- either in relation to the length of the term imposed or the choice of the imposition of imprisonment to be immediately served, then leave should be granted and the appeal will succeed: House v The King (1936) 55 CLR 499, 505; but the grounds also seek to identify errors of principle in the alleged over-emphasis of the seriousness of the offence, particularly in ground 5, the aspect with which I have already dealt, the impact of fatigue upon the assessment of the seriousness of the offence.
54 It is sought to identify as an error of principle the alleged over-reliance by Groves DCJ upon the need for deterrence in the sentence imposed. A further error is alleged in the failure to accord sufficient mitigatory power to the applicant's personal circumstances, including her good driving record, and the attitude expressed by the widow of the deceased victim of the offence in a victim impact statement in which it is said she called for a merciful approach to sentencing.
55 Reference is also made to what is described as the Crown's acknowledgement that a custodial sentence was not warranted. As can be seen, I think that puts the Crown's submissions to Groves DCJ too high, but in any event it will be clear from what I have already said that in my view Groves DCJ did not err in failing to adopt those submissions and in making his own independent assessment of the seriousness of the offence, as his Honour was obliged to do by law.
56 When grounds of that sort are relied upon, the remarks of Hayne J in Ryan seem to me to be apposite. At par [136] his Honour said:
"It is because sentencing, being discretionary, admits of no single 'correct' answer, that the task of intermediate appellate courts, on an appeal against sentence, is to examine whether the appellant makes good the allegation that the sentencer made an error of principle, not whether they agree with the sentence imposed. In a case of the present kind where, … the appellant alleged specific error, … the question is not whether the particular factor to which attention is directed might have been taken into account by the sentencer differently. It is whether the sentencer was bound to take that matter into account differently."
57 It is necessary then always to bear in mind what a court is about when it embarks upon the difficult process, perhaps the most difficult judicial process, of the imposition of sentence. The fundamental principle is the imposition of a sentence proportionate to or commensurate with the
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- seriousness of the offence, as it is defined by the law, in the circumstances of its commission, having regard to the circumstances personal to the offender and overlooking none of the inevitably complex mix of aggravating and mitigating factors: Sentencing Act 1995 (WA), s 6, s 7 and s 8. The application of that central principle is thought to be the process best calculated to give effect in all cases to the purpose for which the court employs the only instrument at its command – the rather blunt instrument of punishment – in the attempt to protect the community from crime.
58 As the majority of the High Court said in Veen v The Queen (No 2) (1988) 164 CLR 465 at 476:
"… sentencing is not a purely logical exercise, and the troublesome nature of the sentencing discretion arises in large measure from unavoidable difficulty in giving weight to each of the purposes of punishment. The purposes of criminal punishment are various: protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform. The purposes overlap and none of them can be considered in isolation from the others when determining what is an appropriate sentence in a particular case. They are guideposts to the appropriate sentence but sometimes they point in different directions."
59 In Ryan at 824, pars [46] and [47], McHugh J referred particularly to the retributive purpose of sentencing. His Honour said that, "public confidence in the courts to do justice would be likely to be lost if courts ignored the retributive aspect of punishment." His Honour also said:
"Sentencing principles in this country have emphasised the need to protect the community by imposing sanctions that reduce crime by removing the offender from contact with the general population and by deterring the offender and others from committing offences – the so-called 'reductive' justification for prison sentences."
60 This is, of course, a reference to what is often shortly described as the purpose of particular and general deterrence, which remains a central purpose to be served by the sentencing process, the ultimate purpose of which is to protect the community. The courts have long recognised, however, that, as Burt CJ put it in R v Peterson [1984] WAR 329 at 332, there are limitations upon the capacity of the court to influence human
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- behaviour by the imposition of punishment for the purpose of general and particular deterrence. So much is obvious, with respect, although from time to time it is necessary to remind the community that it is so. That the court cannot, by the imposition of justly proportionate sentences, deter all criminal offending so as to protect the community absolutely does not, of course, mean that the court is justified in not applying the full rigour of sentencing principle.
61 The further point which needs to be made is that the sentencing court is directed in serving the principle of proportionality to impose a punishment or choose a sentencing disposition which is no more retributive, coercive or punitive than is judged to be required in all the circumstances of the case to give effect to sentencing principles. For that reason, the Sentencing Act, s 6(4) provides that the court must not impose a sentence of imprisonment unless the seriousness of the offence is such that only imprisonment can be justified or the protection of the community requires it. It is by statute the sentence of last resort and that that is so is made clear by s 39 of the Act.
62 In that regard it is to be noted that under that section, the imposition of suspended imprisonment is the second most severe sentence available to the court, exceeded in severity only by the imposition of a term of imprisonment to be immediately served. Consistently with that approach, s 76(2) provides that suspended imprisonment is not to be imposed unless imprisonment for a term equal to that suspended would be appropriate in all the circumstances if it were not possible to make the order that service of the term be suspended.
63 In Dinsdale v The Queen (2000) 202 CLR 321, the High Court placed particular emphasis upon these provisions in holding that the exercise of the discretion to suspend imprisonment was to reflect a consideration of all the circumstances of the case concerned with both the offence and the offender as merited consideration in respect of the exercise of the sentencing discretion overall.
64 The way in which the grounds of appeal are formulated and the argument presented to the Court have made it necessary to give some attention to matters of basic principle, but it should be said at the outset, in my opinion, that nothing said by Groves DCJ in his extensive remarks upon sentence discloses any error in the discussion of the principles to be applied. If error there has been, it will be found in the manifest severity of the sentence imposed rather than in the conclusion that his Honour
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- misunderstood any relevant principle or was bound to accord any aspect of the relevant circumstances greater weight than he did.
65 I have already touched upon the nature of the offence of dangerous driving. It may accommodate a range of driving behaviour. Dangerous driving is not the same thing as negligent driving. A momentary lapse of attention may be sufficient to constitute dangerous driving, but it may involve a range of driving fault which will elevate the seriousness of the offence in the circumstances of its commission. The test is whether objectively the driving is in reality actually or potentially dangerous to the public or another person: Kaighin v The Queen (1990) 1 WAR 390, 395. Therefore a principal circumstance delineating the seriousness of the offence will be an evaluation of the driving misconduct involved. That was particularly a matter for Groves DCJ. The verdict of the jury provided his Honour with no guidance beyond the conclusion of dangerousness.
66 Another important fact, of course, will be that the driving misconduct caused a death and the circumstances in which that occurred. By the Road Traffic Act, s 59(3), dangerous driving causing death or grievous bodily harm, as that term is understood by the law, is generally punishable upon indictment by imprisonment for 4 years or summarily by imprisonment for 18 months. Section 59A of that Act provides the offence of dangerous driving causing bodily harm. The offence is a simple offence punishable summarily for a first offence by imprisonment for 6 months or for a second or subsequent offence by imprisonment for 18 months. Dangerous driving without more is punishable under s 61 of the Act by a fine for a first offence and imprisonment for 6 months for a second or subsequent offence. Careless driving is a lesser offence again, punishable under s 62 by a fine. It can seen therefore that these offences are graded according to the seriousness of the driving misconduct and by a particular reference to the seriousness of the harm which results. The most serious form of the offence is, of course, that which takes life.
67 In discussing the sentence provided for murder in SA in Inge v The Queen (1999) 199 CLR 295 at 314 – 5, Kirby J said that the mandatory sentence provided:
"… reflects the specially high value placed by Parliament upon the protection of human life. It derives from a belief that homicide should be marked by the imposition of punishment, both symbolic and real, which indicates society's special condemnation of the taking of human life."
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- The same approach is reflected in these provisions, although, of course, manslaughter by the use of a motor vehicle is punishable much more severely, reflecting the high degree of negligence required to be established if a conviction is to occur.
68 That was recognised by Malcolm CJ in his judgment in Ainsworth, which was a case of dangerous driving causing grievous bodily harm. In that case, which involved a child offender and was therefore subject to the special considerations applying in such a case, his Honour expressed the view that general deterrence was a principal aim of the sentencing process. His Honour said that the remarks to that effect he had made in the context of motor vehicle manslaughter were equally applicable to cases of dangerous driving causing death or grievous bodily harm (115). His Honour quoted again what he had said in R v Stebbings (1990) 4 WAR 538 at 540:
"The loss of life and personal injury caused by dangerous or negligent driving on our roads has been rightly described as one of the most serious social problems facing the Australian community. In these circumstances it is necessary to impose a sentence which will hopefully act as a deterrent to others and mark the seriousness with which Parliament and the community regard the kind of driving behaviour exhibited by the respondent in this case. The tragedy and misery caused by the deaths and injuries to innocent road users is compounded in a case such as this, where the deaths and injuries were quite unnecessary and could so easily have been avoided."
69 In NSW in R v Jurisic (1998) 101 A Crim R 259; (1998) 45 NSWLR 209, the Court of Criminal Appeal constituted by five Judges, presided over by Spigelman CJ, formulated sentencing guidelines for the offence of dangerous driving causing death or grievous bodily harm defined by the Crimes Act 1900 (NSW), s 52A, which had then relatively recently been amended so that dangerous driving causing death was generally punishable by 10 years imprisonment and dangerous driving causing grievous bodily harm was generally punishable by 7 years imprisonment unless the offences were committed in statutory circumstances of aggravation. Those amendments had made substantial increases in the penalties because it was felt that the existing legislation did not provide the capacity to impose sentences which were a sufficiently strong deterrent to such driving behaviour.
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70 The Court accepted that it was necessary to provide guidelines for sentencing Judges because sentences imposed following the amendment of the legislation did not adequately reflect the objective of general deterrence (229). The guidelines pronounced at 231 by Spigelman CJ may provide useful guidance but I would not, in relation to s 59 of the Road Traffic Act, think it proper to follow the guidelines in relation to the level of sentences because the offence is so much more serious in NSW than is the case in this State. In particular I notice that the first guideline is that, "A non-custodial sentence for an offence against s 52A should be exceptional and almost invariably confined to cases involving momentary inattention or misjudgment."
71 Police v Cadd (1997) 69 SASR 150 is a decision of the Full Court of SA, again constituted by five Judges under Doyle CJ to hear appeals in respect of sentences imposed by Magistrates for the offence of driving a motor vehicle while disqualified from holding or obtaining a licence. The Court held that it was prepared to give a guideline judgment and did so. Again in that case the Court held that in the ordinary case, even for a first offender, where the circumstances were serious, a sentence of imprisonment would be appropriate. Again, the object or purpose of general deterrence was among the aspects to which members of the Court made particular reference in supporting that view.
72 I appreciate, of course, that that is a different offence but I think it is to be noted that in sentencing for traffic offences of the kind under discussion, the courts rank general deterrence high in the list of relevant considerations and that is done for the purpose of ensuring that the sentences imposed do adequately provide for the protection of the road-using public by attempting to deter the commission of serious traffic offences, particularly those which have the effect of taking human life. To lay emphasis upon that approach is necessarily to reduce the capacity of mitigating circumstances to be given sufficient weight to have a substantial impact upon the punitive nature of a properly proportionate sentence.
73 Miller J has referred to the facts of the case as they were found by Groves DCJ. I need only summarise them. The offence was committed at 9 am on the Mitchell Freeway. The deceased was walking in the emergency stopping lane. He was readily visible to a driver proceeding in the direction from which the applicant came. She was driving home after a night out. She had in fact had no sleep for some 23 hours and she had only had some five to seven hours sleep in the preceding 48 hours. She was not speeding, but travelling at between 80 and 100 kph. It would
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- have taken her between about 11 to 14 seconds to travel the distance between the point at which she could first reasonably have seen the deceased to the point of impact in the emergency lane. That is a long time at the wheel of a motor vehicle.
74 Her vehicle was observed to simply drift out of a travelling lane into the emergency lane where it struck the deceased without any apparent diminution in speed or attempt to take evasive action. She apparently did not apply the brakes until after the impact. The applicant said she did not see the deceased. At trial, in her evidence given in her defence, as well as in the statement she made to investigating police officers, the applicant attributed the fact that she did not see the deceased to a sneezing fit immediately before impact.
75 That was an explanation evidently rejected by the jury, as it was by Groves DCJ. His Honour found:
"This is not a case of momentary inattention or misjudgment. Clearly, this case falls within the second category, the more serious category of dangerous driving causing death; that is, of a person who has shown a selfish disregard for the safety of other road users or has acted with a degree of recklessness. You well knew that when you set out to drive your car home that Easter Monday morning you were in such a physical state that you ought not to have been driving."
- Indeed, as his Honour noted, when interviewed by the police the applicant admitted that she knew that she was not in a fit condition to drive without the risk of an accident. However, as she said, she was not feeling tired and just wanted to get home. His Honour noted that the applicant had not been drinking alcohol or taking drugs. However, she had been driving for some 15 to 20 minutes before the accident occurred.
76 His Honour referred to the victim impact statement provided to the Court by the widow of the deceased in which she expressed her forgiveness and recognition of the terrible burden of guilt which the applicant would have to bear. To the extent that the author of that document expressed a view about the way in which, or the extent to which, the applicant should be sentenced, the victim impact statement contained material which was contrary to the Sentencing Act, s 25(2). It need only be said I think that, in my opinion, the first ground of the application could not succeed and there is no indication that Groves DCJ
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- gave any inappropriate consideration to the content of the victim impact statement.
77 In mitigation, the trial Judge accepted the applicant's deep remorse, although it has to be said, I think, that he treated her favourably in that regard given her evidence that she did not fall asleep but was distracted by a sneezing fit, evidence calculated to support the conclusion that the accident occurred without fault on the applicant's part. His Honour also referred to other personal circumstances of the applicant, all of which were substantially mitigatory in their effect. She was only 22 at the time. She had no prior convictions of any sort. She was accepted to be of unblemished character who was attempting to continue her education and to obtain qualifications for primary school teaching. His Honour clearly appreciated the tragedy of the circumstances which brought her to be sentenced in a criminal court.
78 Groves DCJ directed himself that he must have regard to all the options available under the Sentencing Act. His final reference to the imposition of a sentence of imprisonment to be served immediately shows that included within those options was that of suspended imprisonment. In expressing the conclusion that imprisonment to be served immediately was "the only appropriate sentencing option available to me", his Honour is shown to have approached the task properly. His Honour expressed the view that in all the circumstances of the case the matters personal to the applicant which were mitigatory in effect had to give way to the aggravating factors concerning the seriousness of the offence in the circumstances of its commission.
79 His Honour particularly referred to deterrence, both personal to the applicant and generally. His Honour appreciated that the applicant would "carry the mental scar of this accident" with her for the rest of her life. He thought it unlikely that she would offend in this way again. He therefore discounted the need for particular deterrence, but having regard to the seriousness of the offence his Honour clearly thought that the principle of general deterrence was of primary importance.
80 Immediately prior to imposing the sentence, Groves DCJ said:
"Fatigue, along with alcohol and speed, are the three principal causes of fatalities on our roads. I stress again that speed and alcohol were not factors in this case. The message must be conveyed that people who risk driving tired risk imprisonment if their driving puts the lives of other innocent road users at risk.
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- In this case, factors personal to you are outweighed by the seriousness of the offence, the aggravating factors and the need for general deterrence to be endorsed."
81 In my respectful opinion, his Honour is revealed to have committed no error of principle in the weight he gave to the various factors relevant to the imposition of sentence. In particular, he did not, in my view, misunderstand the seriousness of this offence. He did not give insufficient weight to matters personal to the applicant. He did not wrongly rely upon the need for personal deterrence so far as she was concerned and he did not commit any error of principle in appreciating that general deterrence was of particular importance. He was right, I think, to give particular weight to the fact that the applicant knowingly drove for some time while she appreciated that she was in truth too tired to do so safely. This was not a case of mere momentary inattention. It was a type of dangerous driving of some particular seriousness.
82 Not only in this case is there no indication of any error of principle on the part of the sentencing Judge but, in my opinion, it is not demonstrated that his Honour fell into error by imposing a sentence which was manifestly excessive. It was well open to Groves DCJ, in the exercise of his discretion, to conclude that a fine or a sentence of suspended imprisonment would not sufficiently mark the seriousness of the offence and give sufficient weight to the principle of general deterrence, and although, like Miller J, I would grant leave to appeal, I too think the appeal must be dismissed.
83 MILLER J: The applicant was convicted after trial before a jury in the District Court at Perth of the offence of dangerous driving causing death, contrary to s 59(1) of the Road Traffic Act 1974. After hearing submissions on the question of sentence the learned trial Judge imposed a sentence of 18 months' imprisonment with an order for eligibility for parole. The applicant was also disqualified from holding a motor driver's licence for a period of three years.
84 The applicant seeks leave to appeal to this Court against the sentence of imprisonment. She seeks an order that the sentence of immediate imprisonment be set aside and in lieu thereof there be an order suspending the sentence of imprisonment, or alternatively, a fine. The grounds of appeal are as follows:
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- "1. The learned sentencing judge gave insufficient or no weight to the victim's (deceased's widow) attitude to sentencing.
2. The learned sentencing judge gave insufficient or no weight to the Crown's acknowledgement that a custodial sentence was not warranted.
3. The learned sentencing judge gave insufficient or no weight to factors personal to the offender, including her good driving record.
4(1) The learned sentencing judge gave insufficient or no weight to personal deterrence; and
4(b) The learned sentencing judge failed to recognise the distinction between general and personal deterrence.
5(a) The learned sentencing judge made an error of principle by equating fatigue with speed and alcohol as being aggravating factors at the same level of seriousness.
5(b) The learned sentencing judge made an error of principle by ignoring the relevance of the degrees of seriousness within the more serious category of the offending in question.
6. The learned sentencing judge made an error of principle by stating that matters personal to an offender cannot override the serious of the offence.
7. The learned sentencing judge failed to consider suspending the sentence of 18 months imprisonment.
8. The sentence was manifestly excessive."
85 After the conviction of the applicant a detailed plea in mitigation was put before the learned trial Judge by counsel who appeared at trial. The learned trial Judge was urged to impose a non-custodial disposition by way of the imposition of a fine. Counsel for the Crown tendered to the learned trial Judge a victim impact statement of the widow of the deceased person and submitted that the act of driving of the applicant had been within the more serious category of dangerous driving causing death but not towards the upper end of seriousness. He put to the learned trial
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- Judge that although the circumstances of the case fell within the more serious category of dangerous driving causing death it was not necessarily the case that an offender in that category must serve an immediate term of imprisonment. It was put in this way:
"The crown understands that just because circumstances fit within the second more serious category it is not necessarily the case that one would go to prison, serve an immediate term of imprisonment, and therefore because the crown places this matter not at the upper end of that second category the crown does not submit that the seriousness of the offence is such that only imprisonment can be justified and relevantly, of course, although not mentioned yet by the crown, seriousness of the offence must take into account the fact that at the time of this offence Ms Wood was 22 years of age and, of course, her record is relevant to that."
87 Those facts reveal that on 24 April 2000 (Easter Monday) one Allan Ryan ("the deceased") died as a result of injuries suffered when struck by a motor vehicle driven by the applicant on the Mitchell Freeway, Carine. The deceased had been riding a motor cycle with his wife, travelling as a pillion passenger. He had been travelling north on the Mitchell Freeway when at about 9am he stopped his motor cycle in the emergency lane on the left hand side of the freeway in order that he might walk back to pick up some sunglasses which had come off. The day was fine and clear, the road surface in good condition and dry and traffic light.
88 The deceased walked back from his motor cycle in the emergency lane to recover his sunglasses. His wife hopped off the motor cycle and waited by it, watching her husband as he walked. At the same time, the applicant was driving a motor vehicle in a northerly direction along the Mitchell Freeway and under the Reid Highway overpass. She was on her way home from a night out. On the Sunday night immediately preceding the Monday morning she had had no sleep at all. In fact, the last sleep she had had was at either 3am or 5am until 10am on Easter Sunday morning. Therefore, immediately preceding the incident, she had gone some 23
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- hours without sleep and, as the trial Judge found, in the 48 hours before the incident she had only five to seven hours of sleep.
89 Whilst travelling north on the freeway the applicant's vehicle drifted from the left hand lane to the emergency lane. It was at least partially, if not wholly, in that lane and drove straight into the deceased who endeavoured to take evasive action but was struck by the right front corner of the applicant's vehicle, thrown high into the air and coming to rest in the centremost of the three north-bound lanes on the freeway.
90 Evidence from police accident investigators revealed that there was a skidmark of about 20 metres in length, finishing behind the right-hand wheels of the applicant's vehicle and entirely in the emergency lane. It was beyond the point of impact. Evidence from the investigators also revealed that if the applicant had been travelling at 80 kmh as she later told police officers, she had ample opportunity to see the deceased in the emergency lane, as a driver travelling in a northerly direction on the freeway had some 223 metres of clear vision along the emergency lane under the Reid Highway overpass to the point of impact and beyond. At 80 kmh the applicant would have taken some 14 seconds to travel 311 metres from the point at which she could first have seen the deceased in the emergency lane until the point of impact.
91 The learned trial Judge concluded that the applicant had momentarily fallen asleep prior to the collision with the deceased. The applicant herself had contended that she had sneezed before the collision with the deceased, but the learned trial Judge discounted that version and in any event concluded that had the applicant sneezed, she still had 11 to 14 seconds with which to see the deceased on the roadway before striking him. His Honour's conclusion was that the applicant was so affected by tiredness that in the circumstances her driving immediately before falling asleep was objectively dangerous. He considered the case was not one of momentary inattention and all the evidence pointed to a conclusion that the applicant had nodded off to sleep "be it micro-sleep or otherwise before the impact occurred".
92 The learned trial Judge placed some importance upon the evidence of a Professor Hartley in relation to sleep deprivation and fatigue and their effects on the drivers of motor vehicles. The Professor had testified that fatigue increased crash risk and a third of all motor vehicle fatalities in Western Australia were fatigue related. He had pointed out in evidence that generally speaking people need seven to eight hours sleep per night and some more. Those who have less accumulate what is called "sleep
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- debt" and if a person has less than 7-1/2 hours sleep on two or more successive nights, the lost sleep accumulates in that way. On the basis of the applicant's sleep pattern over the 48 hours pre-accident, Professor Hartley concluded that she was seven or eight times more sleepy than the normal person, that is, she would fall asleep seven or eight times more rapidly than a person who had experienced a normal night of sleep.
93 The learned trial Judge gave careful consideration to the personal circumstances of the applicant. He set out all relevant factors, including the fact that the applicant had no prior record of criminal convictions and no convictions for violation of the traffic laws. He accepted her to be a person of good character and accepted her counsel's submission that she had expressed deep remorse and regret in relation to the pain caused to the widow and family of the deceased. However, the issue of the applicant's remorse was limited to the expression of regret to which I have referred. There was not remorse in the sense that that term is used in the context of a plea of guilty. The applicant had pleaded not guilty to the charge and therefore it could not be said that she was entitled to any significant discount in relation to the sentence to be imposed by reason of a plea of guilty which incorporated "remorse, acceptance of responsibility and/or willingness to facilitate the course of justice": Cameron v The Queen (2002) 76 ALJR 382 per Gaudron, Gummow and Callinan JJ at [22].
94 The learned trial Judge gave consideration to the victim impact statement of the widow of the deceased. His Honour pointed out that she and her family had suffered a significant impact by reason of the death of the deceased but she held no animosity towards the applicant and "in a Christian way she expresses forgiveness". His Honour pointed out that a victim impact statement could not be used to increase a sentence, but might tend in certain circumstances to negate mitigating factors. His Honour appears to have taken from the victim impact statement a very clear understanding that the widow of the deceased suffered great horror in being present at the scene of the collision and the family has suffered as one would expect from the death of the deceased. All of this is unexceptional.
95 Under the provisions of the Sentencing Act 1995, s 25(2) a victim impact statement is not to address the way in which or the extent to which an offender ought to be sentenced and its primary purpose is to describe the effects on the victim of the commission of an offence (s 25(1)(b)). It is not the case that a victim impact statement serves the purpose of assisting the offender. To the contrary, the purpose of the statement is to give the Court particulars which will enable it to take into account the
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- effect of crime upon the victims and thereby to assist in determining the proper sentence for an offender (Sentencing Act, s 24(1)). In any event, in this case the widow of the deceased made it clear in the victim impact statement that the death of the deceased had had a devastating effect upon the family. Although the widow herself held no animosity towards and forgave the applicant, that was not, in my view, a telling factor in favour of the applicant.
96 When the learned trial Judge came to sentence the applicant he expressly stated that he had considered all options available to the Court under the provisions of the Sentencing Act. His Honour gave careful consideration to the question whether a fine might be appropriate or whether a sentence of imprisonment was the only disposition which was open. He rightly pointed out that whatever sentence was imposed would not "bring the deceased back" and stressed that it was to be understood that the sentence could not be taken to reflect the value of the life lost. In this respect his Honour was absolutely correct.
97 His Honour had regard to the circumstances of the accident, the seriousness of the offence and all mitigating and/or aggravating factors. He clearly accepted that there were mitigating factors. Primarily they were the relative youth of the applicant, who was 24 years of age at the time of trial, and her excellent antecedents. Account was taken of remorse expressed since conviction and regret as to pain caused to the widow and family. Account was also taken of the support of the applicant's family, her family background and tragedies which she had experienced in her lifetime. Full consideration was given to the applicant's attempts to continue her education for suitable qualifications in the field of teaching, and finally it was appreciated by the learned trial Judge that the applicant would carry with her for the rest of her life the burden of what had happened.
98 His Honour concluded his sentencing remarks in the following terms:
"Such matters personal to an offender as those mentioned cannot override the seriousness of the offence and sometimes have to give way to other factors. The sentence must be seen as a deterrent, both personal to you and the public generally, in that it must send a message to others who might similarly offend that the courts will deal harshly with such offenders. As to personal deterrents (sic), as I have said, you will carry the mental scar of this accident with you for the rest of your life. It
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- is unlikely that you will offend in this way again. As to general deterrence condign punishment is necessary. The circumstances of this offending fall into the more serious category as explained in the Guilfoyle (sic) case. Whether it is at the low end of that category or the high end is hardly relevant.
It would only be in exceptional circumstances that a custodial sentence was not imposed. There are aggravating factors of the type which I have identified. They are: the fact of fatigue and the fact that you knew, having regard to your health and lack of sleep, that you should not have driven; secondly, the fact that you were putting at risk the lives of others who may have been on or in proximity to the road on your way home. The deceased was entitled to be where he was in the emergency lane, in the circumstances which occurred.
He, like other road users, was entitled to have the expectation that vehicles being driven along the freeway would be driven in a manner without putting him at risk. Regrettably, he was in the wrong place at the wrong moment as your vehicle drifted into the emergency lane. Thirdly, your journey was relatively short, possibly 15 to 20 minutes, despite the fact that traffic was light, nevertheless, the length of your journey is a relevant factor. Fourthly, the fact that your vehicle lane wandered or drifted into the emergency lane, that being an indicia of fatigue is another factor relevant in this context. Fifthly, the fact that a person was killed as a result of your dangerous driving is clearly a factor of aggravation.
Fatigue, along with alcohol and speed, are the three principal causes of fatalities on our roads. I stress again that speed and alcohol were not factors in this case. The message must be conveyed that people who risk driving tired risk imprisonment if their driving puts the lives of other innocent road users at risk. In this case, factors personal to you are outweighed by the seriousness of the offence, the aggravating factors and the need for general deterrence to be endorsed."
99 The first ground of appeal contends that insufficient or no weight was given to the attitude of the widow of the deceased to the question of sentencing. I have already made some observations about this. The victim impact statement when received is to assist the Court in
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- determining the proper sentence for the offender, and no doubt the attitude of the victim to the offender will, in some cases, be relevant. In this case the widow of the deceased implored God to forgive and have mercy on the applicant and asked the learned trial Judge to have mercy on her when sentencing. This fact the learned trial Judge was aware of. He was not, however, bound to sentence the applicant other than to a term of imprisonment merely because the widow of the deceased asked for mercy upon her. A sentence of imprisonment may itself be a merciful sentence, depending upon its length. In my view there is nothing in the first ground of appeal.
100 The second ground of appeal contends that insufficient or no weight was given to the Crown's acknowledgement that a custodial sentence was not warranted. However, as I have already pointed out, the Crown submission was only that the case was one in which imprisonment was not the only option. The Crown was not seeking a non-custodial sentence, nor in reality could it have done so. In any event, the learned trial Judge was not bound in any way by any sentencing submissions made by the Crown. Clearly, they were to be taken into account and it is evident that they were. The learned trial Judge made specific reference to the Crown's submission in the course of his sentencing comments. In my view there is nothing in the second ground of appeal.
101 The third ground of appeal contends that insufficient or no weight was given by the learned trial Judge to factors personal to the offender. However, as I have already pointed out, the learned trial Judge took full account of matters personal to the offender, dealing with all aspects of her antecedents and prospects in life. It could not possibly be suggested that his Honour was unaware of, nor giving sufficient weight to those factors. The third ground of appeal therefore fails.
102 The fourth ground of appeal contends that there was insufficient or no weight given to "personal deterrence" and a failure to recognise the distinction between general and personal deterrence. However, the learned trial Judge made specific reference to the distinction between personal and general deterrence. I have already set out the relevant passage of his Honour's sentencing remarks. I consider his Honour to have made it clear that whilst regard must normally be had to personal and general deterrence, the applicant did not need personal deterrance, as she was unlikely to offend again. Instead, it was a case for general deterrance. In my view this ground of appeal fails.
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103 The fifth ground of appeal contends that the learned trial Judge erred in equating fatigue with speed and alcohol as aggravating factors. The ground adds that the learned trial Judge erred by ignoring the relevance of "degrees of seriousness within the more serious category of the offending in question". In my view the learned trial Judge did not equate fatigue with speed and alcohol at all. What his Honour said was that fatigue, as a factor contributing to fatalities on the road, was "no less significant than alcohol and speed" because a third of all fatalities were fatigue related. He pointed out that fatigue increases the crash risk and quoted Dr Hartley's evidence in relation to the problems manifested by fatigue. At the conclusion of his sentencing comments the learned trial Judge stressed that speed and alcohol were not present in this case but the message needed to be conveyed to the public that people who drive when tired risk imprisonment if their driving in turn puts the lives of other innocent road users at risk. In my view no issue can be drawn with this observation.
104 In the course of his sentencing comments the learned trial Judge understood that there are two categories of dangerous driving causing death which are commonly experienced in the courts. They are cases in which an accident has arisen through momentary inattention or misjudgment and cases where the accused has driven in a manner which has shown a selfish disregard for the safety of other road users or with a degree of recklessness. In Smith v The Queen [1976] WAR 97 at 107 - 108, Jackson CJ made this clear in the following passage:
"The Court of Appeal in England in R v Guilfoyle [1973] 2 All ER 855, recently considered the subject of the penalties to be imposed for this offence, and pointed out that cases of this kind fall into two broad categories; 'first, those in which the accident has arisen through momentary inattention or misjudgment, and secondly those in which the accused has driven in a manner which has shown a selfish disregard for the safety of other road users or of his passengers or with a degree of recklessness. A sub-division of this category is provided by the cases in which an accident has been caused or contributed to by the accused's consumption of alcohol or drugs'; and that offenders may have good or bad driving records; the Court then said, at p 845: 'In the judgment of this Court an offender who has been convicted because of momentary inattention or misjudgment and who has a good driving record should normally be fined and disqualified from holding or obtaining a driving licence for the minimum
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- statutory period or a period not greatly exceeding it, unless of course there are special reasons for not disqualifying. If his driving record is indifferent the period of disqualification should be longer, say two to four years, and if it is bad he should be put off the road for a long time. For those who have caused a fatal accident through a selfish disregard for the safety of other road users or their passengers or who have driven recklessly a custodial sentence with a long period of disqualification may well be appropriate, and if this kind of driving is coupled with a bad driving record the period of disqualification should be such as will relieve the public of a potential danger for a very long time indeed.'
I would, with respect, adopt and follow these views. It will be seen that this case falls into the second, or more serious class of offences, even though the offender has a good driving record. For the more serious category, as the Court of Appeal said, a custodial sentence may well be appropriate."
105 In my view the Crown is correct in its submission that there are no subcategories or gradations or any "sliding scale" of seriousness of offences within the second category of dangerous driving causing death. To the extent that the learned trial Judge stated that whether or not the offence was at the low end of the category or at the high end was hardly relevant, his Honour was correct.
106 Although in Ainsworth v D (A Child) (1992) 7 WAR 102 at 116, Malcolm CJ quoted with approval the passage of Lawton LJ in R v Guilfoyle [1973] 2 All ER 844 (at 845) to the effect that there was a subdivision of the second category of offences provided by cases in which an accident has been caused or contributed to by the accused's consumption of alcohol or drugs, I do not regard that as suggesting that there are any formal subcategories of the second category of offences of dangerous driving causing death. It seems to me that all that Lawton LJ was saying was that there would be cases within the second category where an accident has been caused or contributed to by consumption of alcohol or drugs which will constitute an aggravating aspect of the offence. Indeed, there is nothing in the judgment of Malcolm CJ and Ainsworth v D to suggest that any formal subcategories of the second category of offences of dangerous driving causing death exists.
107 At the hearing of the appeal, an attempt was made by counsel for the applicant to categorise the offences as one of momentary inattention or
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- misjudgment. However, the grounds of appeal do not assert any error on the part of the trial Judge in this regard. Further, counsel at trial effectively conceded that the case fell into the second category. In my view, it certainly did and the learned trial Judge was correct to deal with it on that basis. The act of driving in relation to which the applicant was convicted was driving whilst sleep deprived, in circumstances where, on her own admission, she should not have been on the road. The accident occurred because she fell asleep at the wheel due to that sleep deprivation, not because of any momentary inattention to driving or any misjudgment on the roadway. I can find no substance in the fifth ground of appeal.
108 The sixth ground of appeal contends that the learned trial Judge erred in stating that matters personal to an offender cannot override the seriousness of the offence. What his Honour should have said is that matters personal to an offender cannot necessarily override the seriousness of the offence and sometimes have to give way to other factors. There will be cases in which matters personal to an offender may override the seriousness of the offence, but clearly in this case his Honour weighed up matters personal to the offender and the seriousness of the offence and came to the view that the seriousness of the offence was such that only a sentence of imprisonment could be imposed.
109 In Hartland v Umbagai (1999) 30 MVR 269, I made reference to the importance of the deterrent aspects of sentencing in relation to the offence of dangerous driving causing death. The observations I made at [14] are, in my view, applicable to the circumstances of this case:
"[14] There was in my view an obligation on the learned magistrate to appreciate that the deterrent aspect of sentencing in relation to this offence was an important factor and required emphasis. As was pointed out by Walsh J in English v R (1995) 22 MVR 138 at 146 the provisions of the Road Traffic Act make it clear that parliament and the community have emphasised concern about 'the social evil created by the negligent driving of motor vehicles'. There his Honour made reference to the observations of the Chief Justice in R v Stebbings (1990) 4 WAR 538 at 540; 12 MVR 553 at 554 where his Honour said:
'The loss of life and personal injury caused by dangerous or negligent driving on our roads has been rightly described as one of the most serious
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- social problems facing the Australian community: see Crawley v R (1981) 36 ALR 241; 55 FLR 463 at 477-8, per Sheppard J. In these circumstances it is necessary to impose a sentence which will hopefully act as a deterrent to others and mark the seriousness with which parliament and the community regard the kind of driving behaviour exhibited by the respondent in this case. The tragedy and misery caused by the deaths and injuries to innocent road users is compounded in a case such as this, where the deaths and injuries were quite unnecessary and could so easily have been avoided.' "
110 In this passage I endeavoured to reiterate what has been said on numerous occasions in our Court. That is, that the need for deterrent sentences to mark the seriousness of the offence of dangerous driving causing death must be understood by all sentencing Judges. That is not to say that matters personal to the offender cannot in certain circumstances play a critical role in determining what the appropriate sentence should be. Those factors will often play a very important role in determining what the length of the sentence should be in the event that it is a sentence of imprisonment, to be served immediately. In many cases in which the offender has impeccable antecedents, a sentence of imprisonment will be imposed. Such a case is Parsons v The Queen [2000] WASCA 407. There (at [13]) Pidgeon J said:
"I shall, at this stage, make a general reference to penalties. The offence of dangerous driving causing death is very serious by reason of the loss of a life. It is recognised that the death has not been caused by an intentional act, but it is also recognised that it may have been caused by momentary inattention. For these reasons the penalties range from a fine or other non-custodial sentence to a term of immediate imprisonment, the maximum of which is 4 years. The approach to be adopted by the courts was referred to by Jackson CJ in Smith v The Queen [1976] WAR 97 at 107, this being a case heard shortly after the offence of dangerous driving causing death was introduced into the Traffic Act. His Honour referred to the fact that there are two broad categories of cases. The first is where the accident has arisen through momentary inattention or misjudgment, and secondly, those in which the accused has
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- driven in a manner which has shown a selfish disregard for the safety of other road users or of his passengers, or with a degree of recklessness. It is clear that the case now being considered falls within the second category and there was present both a selfish disregard for the safety of the passengers, and a degree of recklessness. There could be no question that there must be an immediate custodial sentence."
111 Wheeler J (at [18] - [19]) said:
"18 I wish to make it plain that the learned sentencing Judge was not in error in taking a very serious view of the offence. As Pidgeon J has pointed out, it was a case in which there was a reckless manner of driving over some distance so that, looking at the circumstances of the offence alone, it could be seen as in the upper range of dangerous driving, being significantly more than a momentary inattention or carelessness.
19 Where there has been such driving, and the death of a person has been caused, the immediate reaction of an ordinary member of the public, in my view, would be that a sentence of 2 years' imprisonment (as proposed by Pidgeon J) would not be adequate to the circumstances of the offence, notwithstanding that there were significant mitigating factors. However, a factor of primary importance in sentencing in respect of any offence must be the statutory maximum imposed by Parliament in respect of that offence. In the case of dangerous driving causing death, the statutory maximum provided by the Road Traffic Act is one of 4 years' imprisonment, if the conviction is on indictment, or 18 months' imprisonment if the matter is dealt with summarily. That gives a sentencing Judge a very limited range within which to recognise what may be, as I have noted and as Pidgeon J has pointed out in more detail, a very wide range of driving behaviour, ranging from a single mistake to an inexcusable disregard for public safety."
112 It was, in my view, open to the learned trial Judge in this case to conclude that the need for general deterrence was such that, notwithstanding the excellent antecedents of the applicant, the only sentence open was one of imprisonment.
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113 The seventh ground of appeal contends that the learned trial Judge failed to consider suspension of the sentence. This ground overlaps with the eighth ground, which is that the sentence was manifestly excessive. It is argued that it was excessive because it was a sentence of imprisonment to be served immediately, when it ought to have been a suspended sentence. His Honour did indicate in the course of his sentencing comments that he gave consideration to all options open under the Sentencing Act and one can only assume that consideration was given to the question of suspension of the sentence. Indeed, in his closing words the learned trial Judge referred to a sentence of imprisonment "to be served immediately" as the only appropriate sentencing option available. This clearly indicates that his Honour was aware of the need to consider the question of suspension and had decided against it.
114 Since the decision in Dinsdale v The Queen (2000) 202 CLR 321 it is clear that the provisions of the Sentencing Act require a trial Judge who has decided that a sentence of imprisonment is the appropriate disposition of a matter to reconsider "all the circumstances" and determine whether or not that sentence should be suspended. It requires what Kirby J referred to as "the attribution of 'double weight' to all of the factors relevant". At [85] his Honour put it this way:
"[85] This necessitates the attribution of 'double weight' to all of the factors relevant both to the offence and to the offender - whether aggravating or mitigating - which may influence the decision whether to suspend the term of imprisonment.
[86] Adopting this approach, then, permits attention to be given not only to the circumstances personal to the offender but also to the objective features of the offence. These may, in a particular case, outweigh the personal considerations of rehabilitation and mercy. They may require that the prison sentence be immediately served, despite mitigating personal considerations. This approach is consonant with the recognition in jurisdictions other than Western Austrtalia of the 'complete discretion' which, subject to the statute, the primary judge has in suspending a sentence of imprisonment. In other States, it has been considered undesirable to attempt to circumscribe the language of the statute by reference to supposed formulae, particular considerations or any other gloss.
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- [87] The approach which I favour also appears more consistent with what has recently occurred in Western Australia where factors quite distinct from the rehabilitation fo the offender or mercy in the particular case have influenced the suspension order made or confirmed. Requiring the primary judge, asked to suspend a sentence of imprisonment, to consider anew all of the relevant circumstances both reinforces the two-step approach which the statute mandates and facilitates a desirable flexibility in sentencing options that permits, in a particular case, the exploration of alternatives to immediate custodial punishment."
115 In the present case the learned trial Judge did not make any reference to, nor clearly identified in his sentencing comments the "two-step" process, as it is described by Kirby J. Nevertheless, there is no reason to think that the learned trial Judge was unaware of the need to carefully consider the question of suspension and his Honour's concluding words certainly indicate that it was a finite term of imprisonment to be served immediately which was being imposed, thus appreciating that the option of a suspended sentence was always there.
116 In this appeal the Crown has relied upon the decision in R v Jurisic (1998) 101 A Crim R 259; (1998) 45 NSWLR 209 as an indication that in other jurisdictions an offence which is the equivalent of dangerous driving causing death is one in which a sentence of immediate imprisonment will ordinarily be imposed and a term of suspended imprisonment will generally be inappropriate. In that case, Spigelman CJ (at 277 - 278) promulgated a number of guidelines for the use of the Supreme Court of New South Wales. His Honour pointed out that a non-custodial sentence for the equivalent of our offence of dangerous driving causing death should be exceptional and almost invariably confined to cases involving momentary inattention or misjudgment. Whilst this case is of primary importance to the State of New South Wales, it nevertheless reveals that in other Australian jurisdictions the more serious category of dangerous driving causing death or its equivalent will generally attract a sentence of imprisonment to be served immediately.
117 In my view, this case was one in which there was no error on the part of the learned trial Judge in imposing the sentence of imprisonment to be served immediately. The sentence was well within the range which the learned trial Judge could have imposed (see Parsons v The Queen (supra)) and, in my view, it properly reflected the seriousness of the
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- offence committed by the applicant. Although she had impeccable antecedents and there were mitigating factors in her favour, the ultimate sentence imposed properly reflected, in my view, those mitigating factors.
118 This Court is not entitled to substitute for the sentence imposed by the learned trial Judge one which any member of it might himself have imposed. In Lowndes v The Queen (1999) 195 CLR 665 at [15], the relevant principle was restated by the High Court in the following terms.
"The principles according to which an appellate court may interfere with such a discretionary judgment by a sentencing judge are well established. In their application to a Crown appeal against sentence they were summarised in R v Allpass and R v Clarke. Of particular importance in the present case is the principle that a court of criminal appeal may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing judge exercised his or her discretion. This is basic. The discretion which the law commits to sentencing judges is of vital importance in the administration of our system of criminal justice."
119 The principles expressed in this passage must be constantly borne in mind by Courts of Criminal Appeal. Further, the public needs to know that in the appellate process it is essential that the discretion committed by law to a sentencing Judge is of vital importance in the administration of the system of criminal justice. Where a particular sentence was open to the learned trial Judge, it is quite wrong for an appellate court to interfere with it. That, in my view, is the present case.
120 In my view the sentence imposed by the learned trial Judge was open to him and no error can be shown in the manner in which his Honour exercised his discretion. Further, it was a case in which the driving of the applicant was in the "second category" of dangerous driving, namely, the category in which selfish disregard was shown for the safety of other road users. To drive on a public roadway when so fatigued as the applicant was constituted a most selfish disregard of that type, as she herself acknowledged when questioned by police. Fatigue clearly is a major contributory factor to fatalities on the road and those who drive in the knowledge that they are seriously fatigued must expect that a sentence commensurate with that behaviour will be imposed. I would allow leave to appeal, but dismiss the appeal.
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