3 The indictment alleged that on 15 July 2012, at Shelley, a Toyota Prado motor vehicle driven by the appellant was involved in an incident occasioning grievous bodily harm to Kathryn Sandra Liddiard (count 1) and the death of Stephen John Liddiard (count 2), and that at the time of the incident the appellant drove his vehicle in a manner that was, having regard to the circumstances of the case, dangerous to the public or to any person, contrary to s 59(1)(b) of the Road Traffic Act 1974 (WA) (the Act).

4 On 8 February 2013, the sentencing judge imposed individual terms of immediate imprisonment of 8 months for count 1 and 12 months for count 2. The terms were made concurrent. The total effective sentence was therefore 12 months' immediate imprisonment.

5 Her Honour ordered that the appellant be disqualified from holding or obtaining a driver's licence for 2 years in relation to count 1 and 3 years in relation to count 2. The periods were made cumulative. The total period of disqualification was therefore 5 years.

6 The appellant alleges the sentencing judge erred by failing to suspend the terms of imprisonment. The decision to impose terms of imprisonment, and the length of the terms imposed, are not challenged.

7 The appellant also alleges the total period of driver's licence disqualification was manifestly excessive. He contends the individual periods of disqualification should have been made concurrent.

8 On 20 February 2013, this court released the appellant on bail pending the determination of the appeal.

The facts and circumstances of the offending

9 The facts and circumstances of the offending are set out in the reasons of Mazza JA. I will not repeat them except to the extent necessary to explain my reasons.

10 On 15 July 2012, at about 9.00 pm, the appellant was driving his motor vehicle on Leach Highway in Shelley. He drove into the intersection of Leach Highway and Vahland Avenue in contravention of a red traffic control light. The bullbar on his vehicle struck another motor vehicle in the intersection. The other vehicle had been travelling on Vahland Avenue. Mr Liddiard was the driver and his sister, Ms Liddiard, was a passenger. Mr Liddiard lawfully entered the intersection on a green traffic control light in order to execute a right hand turn. The force of the impact propelled his vehicle into a light pole. The appellant's vehicle rolled.

11 Mr Liddiard died at the scene. Ms Liddiard received rib fractures, a punctured and collapsed lung, multiple lower limb lacerations, a hip wound, facial cuts, a chipped tooth and whiplash injuries. The collapsed lung was a life-endangering injury. The appellant received a head injury. He was treated in hospital but the injury was relatively minor.

12 The appellant undertook a preliminary breath test at the scene. His blood alcohol level was zero. The speed limit where the incident occurred was 70 kilometres per hour. There was no evidence to suggest the appellant had been speeding. Also, there was no evidence to suggest he had braked before the collision. The road was dry, the weather conditions were clear and the intersection was well lit.

The sentencing judge's sentencing remarks and the appellant's personal circumstances and antecedents

13 The sentencing judge recounted, in her sentencing remarks, the facts and circumstances of the offending.

14 The appellant was born on 7 August 1990. He was 21 at the time of the offending and 22 when sentenced.

15 The appellant did not have any prior convictions for traffic or other offences. He had no unpaid fines. The appellant attended a private Catholic school where he was a house captain. Later, he commenced a Bachelor of Commerce degree at Curtin University. At the time of the incident, he was employed in a responsible position with a finance company. The appellant has no difficulties with alcohol or illicit drugs. He has a strong and stable family. The authors of a number of character references spoke well of him.

16 As a result of the incident, the appellant suffered an adjustment disorder. He sought treatment from a psychologist. The death of Mr Liddiard, and the serious injuries to Ms Liddiard, caused the appellant psychological trauma, including depressive symptoms, stress, social avoidance, guilt, irritability, reduced self-confidence, increased emotional expression and a greater level of dependence on his parents.

17 The information before her Honour included a report dated 3 February 2013 from Mr Ken Holland, a clinical psychologist, and a pre-sentence report dated 13 December 2012.

[The appellant] is a 22 year old male, appearing before the Court as a first offender. He presented as co-operative and open despite becoming emotional at times during the interview process. [The appellant] impresses as an intelligent young man who feels a great sense of regret and remorse that his actions have resulted in the death of a man as well as his passenger sustaining serious injuries. This is evidenced by the way he was able to articulate his current feelings and emotions surrounding the offences; accepting full responsibility for his actions and displaying victim empathy throughout the interview process.

[The appellant] presents as an individual who has infrastructural elements such as employment and sound family and peer support in place. His character references are testament to his previous unblemished record and positive contributions to society. It was evident during the interview process that there is, and will continue to be, emotional trauma for [the appellant] as a result of his actions. He appears deeply sympathetic for the victims' family and it is anticipated that he will require ongoing counselling to assist him to come to terms with his actions.

Following discussions with [the appellant] and his treating psychologist, it would seem that [the appellant] has no outstanding treatment needs that could be addressed via community supervision.

19 The appellant told the author of the pre-sentence report and Mr Holland that, as a result of his head injury, he had no memory of the incident or the events leading up to it. He thought he may have been distracted but he was not sure. Both the author of the pre-sentence report and Mr Holland considered the appellant's professed loss of memory was genuine. This was also her Honour's finding (ts 21).

20 According to the sentencing judge, 'logically one of three things happened which caused the collision' (ts 21). These were:

(a) the appellant 'blatantly, deliberately drove through a red light';

(b) he 'approached an orange light thinking [he] had time to drive through before it turned red, but made a fatal error of judgment in that regard'; or

(c) he was 'preoccupied in [his] thoughts or distracted by something, whether that be inside or outside the car, and simply failed to register that the light had turned red' (ts 21).

21 Her Honour was not satisfied the appellant had deliberately driven through the red light (ts 21). The State had not asked her to make such a finding (ts 22).

As to the other possibilities, they all show a high degree of dangerousness in that you were approaching a set of traffic lights on a highway at a reasonably major intersection. It will never be known precisely why you drove through a red light but any of those possibilities shows obviously a lack of attention and a lack of care (ts 22).

23 Her Honour received victim impact statements from Ms Liddiard and her parents and from Mr Liddiard's girlfriend. She described the statements as 'absolutely heartbreaking' (ts 22).

24 The incident has had a serious physical and emotional impact on Ms Liddiard. Although she was only 23 years old she sometimes felt physically as though she were 50. The incident has affected her confidence while driving. She is very self-conscious about scarring on her face and legs. She feels an aching loss for her brother.

25 The sentencing judge referred to deterrence, as a sentencing factor, as follows:

Sentencing for offences of this kind involves my imposing a sentence which will deter you in the future from ever driving dangerously again. Given your unblemished record and your general background and the extent to which this has affected you psychologically, I consider it unlikely you ever will offend again, in any event.

The need for specific deterrence here, I think, is quite reduced, but the sentencing exercise involves the important task of sending a message out to the community that motor vehicles might be convenient and we can't do without them, but they are lethal weapons, and all drivers need to be on the utmost guard at all times, and taking into account not only the safety of themselves, but the safety of everyone else on the road (ts 27).

26 Her Honour mentioned a number of mitigating features. She accepted the appellant had pleaded guilty at the first available opportunity and his pleas indicated an acceptance of responsibility, a willingness to facilitate the course of justice and genuine remorse (ts 28). Indeed, her Honour was satisfied the appellant was 'extremely remorseful over [the] incident' (ts 28).

27 The sentencing judge noted there was nothing in the appellant's background or lifestyle which required rehabilitation, and there was 'very little risk' he would appear again before the courts (ts 28). The appellant was a young man of 'unblemished character and record, who has every prospect of living a responsible and successful life, [and] who has had a momentary and appalling lapse of either judgment or attention, resulting in very tragic consequences' (ts 28 - 29).

28 Her Honour was of the view that, notwithstanding the matters of mitigation, 'nothing short of imprisonment could possibly reflect the seriousness of what [the appellant had] done or its tragic consequences' (ts 29).

29 The sentencing judge considered whether the terms of imprisonment could be suspended. She concluded:

The decision has been a difficult one, particularly [bearing] in mind your youth, your remorse and good character and the extent to which you have already been damaged by what you have done. But in the end, a young man has lost his life and a young woman has been seriously injured in circumstances where they were driving through a green light at a fairly large intersection. They should have been safe driving through that green light, and because of your driving, for whatever reason you went through that light, a family will never be whole again.

... suspending the term would fail to adequately reflect that loss of life and serious painful injury and loss, and would fail to send that message to the community which is so necessary, about the need for drivers to have regard to other drivers (ts 29).

30 After sentencing the appellant to the terms of immediate imprisonment, her Honour imposed the driver's licence disqualifications.

31 Initially, the appellant relied on two grounds of appeal.

32 Ground 1 asserted the sentences of immediate imprisonment were 'manifestly excessive'. They should have been suspended. The allegation of 'manifest excess' in ground 1 must be understood, in the context of s 39 of the Sentencing Act 1995 (WA), as an allegation that it was not reasonably open to the sentencing judge to decide that immediate imprisonment was the only appropriate sentencing option.

33 At the hearing of the appeal, counsel for the appellant abandoned ground 2.

34 At the hearing, counsel applied for leave to rely on an additional ground (ground 3), namely, that the total period of driver's licence disqualification (5 years) was manifestly excessive.

35 On 14 March 2013, Mazza JA granted leave to appeal on ground 1. The appellant requires leave to appeal on ground 3.

36 In McBride v The Queen [1966] HCA 22; (1966) 115 CLR 44, Barwick CJ examined the essence of dangerous driving as embodied in s 52A of the Crimes Act 1900 (NSW). That provision created the offence of culpable driving committed when the death of any person was occasioned through impact with a motor vehicle being driven by a person 'at a speed or in a manner which is dangerous to the public'. His Honour said:

The section speaks of a speed or manner which is dangerous to the public. This imports a quality in the speed or manner of driving which either intrinsically in all circumstances, or because of the particular circumstances surrounding the driving, is in a real sense potentially dangerous to a human being or human beings who as a member or as members of the public may be upon or in the vicinity of the roadway on which the driving is taking place (49 - 50).

37 Those observations were approved by Mason CJ, Brennan, Deane, Dawson, Toohey and Gaudron JJ in Jiminez v The Queen [1992] HCA 14; (1992) 173 CLR 572, 579, a case which also concerned s 52A of the Crimes Act 1900 (NSW).

38 Although intention is not an element of the offence created by s 59(1)(b) of the Act, liability under s 59(1)(b) is not absolute. For example, liability under that provision does not extend to involuntary acts and is not established if the defence of mistake under s 24 of the Criminal Code (WA) applies. See McPherson v Lucas [2008] WASCA 56; (2008) 181 A Crim R 587 [21] (McLure JA, Wheeler & Miller JJA agreeing) and the cases there cited.

39 An offence under s 59(1)(b) of the Act is not proved by demonstrating that the motor vehicle driven by the accused was involved in an incident occasioning the death of, or grievous bodily harm to, another person and the accused was, at the time of the incident, driving the vehicle without due care and attention. The Act differentiates between dangerous driving and careless driving. If it were otherwise, all breaches of a duty of care under the law of negligence would, because of the inherent risk of harm to the public associated with the driving of a motor vehicle, constitute dangerous driving. See McPherson [24], [28].

40 In King v The Queen [2012] HCA 24; (2012) 245 CLR 588, the High Court considered the correctness of directions given by a trial judge to a jury in respect of the offence of dangerous driving causing death under s 319(1) of the Crimes Act 1958 (Vic). French CJ, Crennan and Kiefel JJ said:

The risk of harm, on the approach taken by the Court of Appeal, was to be assessed according to whether and to what extent the driver had breached a duty of care. That approach was erroneous. It may be that in many if not most cases dangerous driving is a manifestation of negligence in the sense of carelessness. It may also be a manifestation of deliberate risk-taking behaviour. It may be that in some circumstances where particular attention is required to the road and to other road users, momentary inattention will result in a manner of driving that is dangerous within the meaning of the section. The assessment of whether the manner of driving was dangerous depends on whether it gave rise to the degree of risk set out by Barwick CJ in McBride and adopted by the plurality in Jiminez in relation to s 52A of the Crimes Act 1900 (NSW). That is the level of risk which should inform a trial judge's direction to a jury in respect of the offence under s 319 [46].

41 Section 6(1) of the Sentencing Act requires that a sentence imposed on an offender must be commensurate with the seriousness of the offence. By s 6(2), the seriousness of an offence must be determined by taking into account the statutory penalty for the offence; the circumstances of the commission of the offence, including the vulnerability of any victim of the offence; any aggravating factors; and any mitigating factors.

42 The maximum penalty of imprisonment for the offence of dangerous driving occasioning death, contrary to s 59(1)(b) of the Act, is 10 years' imprisonment if, as in the present case, the offence is not committed in circumstances of aggravation. See s 59(3)(b).

43 The maximum penalty of imprisonment for the offence of dangerous driving occasioning grievous bodily harm, contrary to s 59(1)(b) of the Act, is 7 years' imprisonment if, as in the present case, the offence is not committed in circumstances of aggravation. See s 59(3)(b).

44 There is no tariff for offences of this kind because of the great variation that is possible in the circumstances of the offending and the offenders. See The State of Western Australia v Butler [2009] WASCA 110 [7] (Wheeler JA). The sentence to be imposed in a particular case depends on its individual facts and circumstances, after having regard to the maximum penalty. It is important, however, in deciding whether a particular sentence is manifestly excessive, to appreciate what sentences are customarily imposed in cases involving similar offending, for the purpose of ensuring broad consistency.

45 It is essential, in examining previous sentencing decisions, to bear in mind that:

(a) the maximum penalty of imprisonment for dangerous driving occasioning death, where the offence is not committed in circumstances of aggravation, has been increased from 4 years' imprisonment to 10 years' imprisonment; and

(b) the maximum penalty of imprisonment for dangerous driving occasioning grievous bodily harm, where the offence is not committed in circumstances of aggravation, has been increased from 4 years' imprisonment to 7 years' imprisonment.

See s 38 of the Criminal Law Amendment (Homicide) Act 2008 (WA).

46 An increase in the maximum penalty for an offence is an indication that sentences for the offence should be increased. See Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 [31] (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel & Bell JJ).

47 I have examined numerous cases with at least some features comparable to the appellant's offending. See Koltasz v The Queen [2003] WASCA 38; Eves v The State of Western Australia [2008] WASCA 7; (2008) 49 MVR 259; Longbottom v The State of Western Australia [2008] WASCA 203; (2008) 38 WAR 396; Taylor v The State of Western Australia [2009] WASCA 226; The State of Western Australia v Olive [2011] WASCA 25; (2011) 57 MVR 269; Abeyakoon v Brown [2011] WASCA 63; (2011) 211 A Crim R 338; Libri v The State of Western Australia [2013] WASCA 113; Lutumba v The State of Western Australia [2013] WASCA 172; and the decisions referred to in those cases. It is unnecessary to reproduce the facts and circumstances or the sentences imposed in the cases I have examined.

48 By s 6(4) of the Sentencing Act:

A court must not impose a sentence of imprisonment on an offender unless it decides that -

(a) the seriousness of the offence is such that only imprisonment can be justified; or

(b) the protection of the community requires it.

49 Section 76 of the Sentencing Act provides, relevantly:

(1) A court that sentences an offender to a term of imprisonment, or to an aggregate of terms of imprisonment, of 60 months or less may order that the whole of the term or terms be suspended for a period set by the court; but not more than 24 months.

(2) Suspended imprisonment is not to be imposed unless imprisonment for a term or terms equal to that suspended would, if it were not possible to suspend imprisonment, be appropriate in all the circumstances.

50 Similarly, s 81(1) of the Sentencing Act provides that a prescribed court that sentences an offender to a term of imprisonment, or to an aggregate of terms of imprisonment, of 60 months or less may order that the whole of the term or terms be suspended for a period set by the court, but not more than 24 months, subject to certain conditions. Section 81(2) provides that conditional suspended imprisonment is not to be imposed unless imprisonment for a term or terms equal to that suspended would, if it were not possible to suspend imprisonment, be appropriate in all the circumstances.

51 The limit of 5 years specified in s 76(1) and s 81(1) reflects Parliament's view that if an offender is sentenced to a term of imprisonment, or to an aggregate of terms of imprisonment, in excess of the specified limit, the offending will be of an order of seriousness which precludes suspension or conditional suspension.

52 The limit of 5 years also reflects Parliament's view that a term of imprisonment, or an aggregate of terms of imprisonment, may appropriately be suspended even though the offender has committed an offence or offences that are of sufficient seriousness as to warrant a sentence or total sentence of 5 years' imprisonment.

53 A court must not impose a term of immediate imprisonment unless satisfied, having regard to the sentencing principles set out in div 1 of pt 2 of the Sentencing Act, that it is not appropriate to impose suspended or conditional suspended imprisonment. See s 39(2) and s 39(3).

54 The sentencing judge must be positively satisfied that it is not appropriate to suspend or conditionally suspend a term of imprisonment before the term can be ordered to be served immediately. In a borderline case, it may be reasonably open to impose different types of sentences. See Skipworth v The State of Western Australia [2008] WASCA 64 [11], [13] - [14] (McLure JA); Fogg v The State of Western Australia [2011] WASCA 11 [9] (McLure P, Mazza J agreeing).

55 The discretion to suspend or conditionally suspend a term of imprisonment is not confined by considerations relating to rehabilitation and mercy. See Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 [18] (Gleeson CJ & Hayne J), [26] (Gaudron & Gummow JJ), [84] (Kirby J). The objective features of an offence may, in a particular case, outweigh the personal considerations of rehabilitation and mercy. See Dinsdale [86].

56 In the present case, by comparison with other cases, the appellant's culpability was towards the low end of the scale of seriousness. His blood alcohol level was zero. There was no suggestion he was under the influence of illicit drugs. There was no evidence he had been exceeding the speed limit. It was not alleged the appellant had deliberately ignored the red traffic control signal. It was not open on the evidence to find he had engaged in deliberate risk-taking behaviour. Further, it was not open on the evidence to find he had made an error of judgment in approaching an orange light by erroneously deciding he had sufficient time to traverse the intersection before the light turned red. The appropriate basis for sentencing the appellant, in the context of his pleas of guilty and all the information before the sentencing judge, was that, as a result of inattention, he failed to appreciate he was faced with a red traffic control signal. The cause of his inattention is unknown.

57 My assessment of the appellant's culpability is based on this court's experience of a wide range of offending against s 59(1)(b) of the Act. It necessarily involves a comparison with other offences and offenders, and does not trivialise the appellant's transgression.

58 I have referred to the appellant's personal circumstances and antecedents. They were excellent. He did not have any prior convictions for traffic or other offences and he had no unpaid fines. All matters personal to the appellant were decisively in his favour.

59 There were numerous mitigating factors. The appellant was a young man (21 at the time of the offending). He was of unblemished character. He had lived a respectable and successful life. He was gainfully employed in a responsible position. The appellant had taken steps to obtain treatment from a psychologist for the psychological trauma he had suffered as a result of the incident. He pleaded guilty at the first reasonable opportunity. He evinced extreme and genuine remorse and contrition. The appellant's remorse and contrition were underscored by his decision to plead guilty at the first available opportunity despite his having no memory of the incident or the events leading up to it. There was very little risk he would ever appear again before the courts.

60 A feature of this case is the devastating impact of the incident on Ms Liddiard, her parents and Mr Liddiard's girlfriend. Mr Liddiard, a young man of 24, was killed and Ms Liddiard, a young woman of 23, was seriously injured. The victim impact statements speak eloquently of the emotional pain and loss suffered by Ms Liddiard, her parents and Mr Liddiard's girlfriend. The pathos is palpable. No doubt, the incident has also had a deleterious effect on other family members and friends. No sentencing disposition will compensate for the tragic and enduring consequences of the incident.

61 It is inherent in any offence against s 59(1)(b) of the Act that the incident will have occasioned the death of or grievous bodily harm to a person. But the circumstances and seriousness of an offence under s 59(1)(b) can differ significantly. There will occasionally be cases where, as a matter of fact, the imposition of a lesser penalty than immediate imprisonment will be appropriate for an accused who has been convicted of an offence or offences contrary to s 59(1)(b).

(a) the maximum penalties of imprisonment for the offences;

(b) the objective facts and circumstances of the offending;

(d) the shocking consequences of the incident, including the death of Mr Liddiard, the serious injuries suffered by Ms Liddiard and the emotional pain and loss suffered by Ms Liddiard, her parents and Mr Liddiard's girlfriend;

(e) subject to the increases in the maximum penalties of imprisonment, the standards of sentencing customarily observed;

(f) the appellant's culpability, which was towards the low end of the scale of seriousness;

(g) the appellant's pleas of guilty at the first available opportunity;

(h) his extreme and genuine remorse and contrition;

(j) his excellent personal circumstances and antecedents, including the absence of any prior convictions for traffic or other offences and the absence of any unpaid fines;

(k) the high likelihood the appellant will not reoffend and, therefore, the relative unimportance of personal deterrence as a sentencing factor;

I am satisfied that a term of immediate imprisonment for each offence was not the only appropriate sentencing option.

63 The degree of the appellant's culpability, combined with the significant mitigating factors, moderated the weight to be accorded to general deterrence.

64 In my opinion, it was not reasonably open to the sentencing judge to decide that immediate imprisonment was the only appropriate sentencing option.

66 I agree with Mazza JA, generally for the reasons he gives, that ground 3 has been made out.

The outcome of the appeal and the resentencing of the appellant

67 I would allow the appeal on the basis of ground 1 and ground 3. The sentencing judge's decision to impose terms of immediate imprisonment should be set aside. This court has the material necessary to resentence the appellant.

68 The decision to impose terms of imprisonment, and the length of the terms imposed, were not challenged. Those terms and the order for concurrency should stand. However, the terms of imprisonment should be suspended under s 76(1) of the Sentencing Act for a period of 9 months commencing on the date on which this court resentences the appellant.

69 Finally, I note my agreement with the orders proposed by Mazza JA in relation to ground 3 and the licence disqualification periods imposed by the sentencing judge.

70 MAZZA JA: The appellant was convicted, following his fast-track pleas of guilty, of one count of dangerous driving occasioning death and one count of dangerous driving occasioning grievous bodily harm. Both offences are contrary to s 59(1)(b) of the Road Traffic Act 1974 (WA). The maximum penalties for these offences when, as in this case, they are not committed in circumstances of aggravation, are 10 years' imprisonment and 7 years' imprisonment respectively and a fine of any amount. A mandatory driver's licence disqualification of no less than two years must also be ordered: see s 59(3). On 8 February 2013, the appellant was sentenced to a total effective sentence of 12 months' imprisonment with eligibility for parole. He was also disqualified from holding or obtaining a motor driver's licence for a total period of 5 years. The total effective sentence was structured in this way:

8 months' imprisonment (concurrent), motor driver's licence disqualification period of 2 years (cumulative)

12 months' imprisonment, motor driver's licence disqualification period of 3 years

71 The appellant, who is presently on bail, now appeals to this court against sentence on three grounds. No issue is taken with the imposition of a term of imprisonment or the length of the terms. Ground 1 alleges that the sentences of immediate imprisonment were manifestly excessive in that a term of suspended imprisonment should have been imposed. Ground 2 was abandoned at the hearing of the appeal (appeal ts 10). Ground 3 alleges that the total driver's licence disqualification period of 5 years was manifestly excessive. It is said that the periods of disqualification should have been made concurrent with each other. Leave to appeal has been granted in respect of ground 1, but is required in respect of ground 3.

72 In order for the appellant to establish grounds 1 and 3, he must demonstrate that the sentence of immediate imprisonment and the length of the disqualification period were unjust or unreasonable: Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321; Fogg v The State of Western Australia [2011] WASCA 11 [5] - [10].

73 There is no dispute as to the facts. At just after 9 pm on 15 July 2012, Steven Lydiard, accompanied by his sister, Kathryn, was driving in his Holden Commodore sedan along Vahland Avenue in Shelley. Steven and Kathryn had spent the evening at their grandparents' house in Riverton and were driving home. Vahland Avenue intersects with Leach Highway. The intersection is controlled by traffic lights. Mr Lydiard intended to turn right into Leach Highway.

74 At the same time, the appellant was driving in a westerly direction along Leach Highway in a Toyota Prada four-wheel drive vehicle. The traffic lights facing the appellant turned orange and then red. Shortly after those lights turned red, the traffic lights facing Vahland Avenue correspondingly turned green. The lights turned green as Mr Lydiard approached the intersection. He accordingly entered the intersection. The appellant did not stop at the red light that was facing him. His vehicle continued along Leach Highway and through the intersection without braking, colliding with the driver's side of Mr Lydiard's vehicle. Mr Lydiard's car was pushed sideways and struck a traffic signal. The appellant's car rolled, before coming to rest driver's side down.

75 Mr Lydiard died at the scene from spinal and head injuries suffered as a result of the collision. Ms Lydiard was seriously injured. Had she not received medical treatment, she probably would not have survived. She received three fractured ribs, a collapsed lung, lacerations on both legs, a wound to her hip, as well as heavy bruising, cuts to her face, a chipped tooth and whiplash injuries. The life-endangering injury was the collapsed lung. Ms Lydiard spent a week in hospital after the collision. The appellant received relatively minor injuries. A witness noted that he seemed dazed and in shock.

76 At the time of the crash, the road was dry, the weather was clear and the intersection was well lit. The traffic lights were checked and found to be functioning properly. The appellant was breathalysed and gave a negative result to alcohol. The speed limit at the location is 70 km per hour. There is nothing to suggest that the appellant was speeding, but, as her Honour remarked, a car travelling at 70 km per hour through a red light will collide with very considerable force. There was no indication that the appellant had applied his brakes prior to the collision, and there was nothing to suggest that the appellant had fallen asleep at the wheel. The appellant has no memory of the collision. Her Honour found that his memory loss was genuine.

77 Her Honour was of the view that one of three things happened which caused the collision. First, the appellant blatantly and deliberately drove through a red light. Second, he approached an orange light thinking that he had time to drive through the intersection before the light turned red, but made an error of judgment in that regard. Third, that the appellant was preoccupied in his thoughts or distracted by something, whether inside or outside the car, and simply failed to register that the light had turned red.

78 Her Honour was not satisfied that the appellant deliberately drove through a red light. As to the other possibilities, her Honour said:

[T]hey all show a high degree of dangerousness in that you were approaching a set of traffic lights on a highway at a reasonably major intersection. It will never be known precisely why you drove through a red light but any of those possibilities shows obviously a lack of attention and a lack of care (ts 22).

79 Her Honour had before her the following materials relating to the appellant's antecedents:

A pre-sentence report dated 17 December 2012.
A psychological report prepared by Mr Ken Holland, clinical psychologist, dated 3 February 2013.
Character references which spoke highly of the appellant.

80 At the time of sentencing, the appellant was 22 years of age. He had no convictions whatsoever, including traffic convictions of any kind. He comes from a close and supportive family. Her Honour found that he was from a very solid and stable family and had been raised with strong values. The appellant had completed high school. He was highly regarded at his school and was a house captain there. He represented the State in underage football. After leaving school, he studied at Curtin University. In 2010, before graduating, he took up a position with a finance company. He has worked in the field of finance ever since. The expert reports revealed that the appellant has no problem with either alcohol or drugs. The pre-sentence report revealed that the appellant has a great sense of regret and remorse for what occurred. In the opinion of Mr Holland, the appellant is suffering from an adjustment disorder due to the collision and is experiencing symptoms of increased depression and stress, social avoidance, increased irritability, feelings of guilt, reduced self-confidence, increased emotionality and a greater level of dependence on his parents.

81 Her Honour's sentencing remarks are careful and thorough. Her Honour said that the appellant was 'a decent young man who fully grasps the enormity of the fact that a young man has died and a young woman has been seriously injured'. Her Honour accepted that the appellant was 'racked with guilt and remorse and will probably never be the same man [he was] before the collision'. Her Honour referred to the positive character references that were tendered on behalf of the appellant.

82 Her Honour referred to the victim impact statements in some detail. It is clear from them that the Lydiard family has been devastated and traumatised by Steven Lydiard's death and by the injuries to Kathryn Lydiard. Her Honour was acutely aware of the profound impact caused by the appellant's actions.

83 In light of the appellant's antecedents and the extent to which the collision and its consequences have psychologically affected the appellant, the learned sentencing judge was of the view that it was unlikely he would ever offend again. Her Honour said that the need for personal deterrence was 'quite reduced'. However, general deterrence remained a relevant sentencing factor. Her Honour said:

Anyone who has driven a car, if they are honest, will acknowledge that there have been times when they didn't pay as much attention as they should have, or when they took a risk they shouldn't have. But there have to be basic standards that acknowledge that when a driver fails to drive carefully, when they objectively endanger other people on the road and when there are tragic consequences, then there will be serious consequences for the driver as well (ts 27 - 28).

84 Her Honour acknowledged the early pleas of guilty. Pursuant to s 9AA of the Sentencing Act 1995 (WA), she reduced the head sentence by 25%, the maximum allowable.

85 Her Honour described the appellant's actions as 'a momentary and appalling lapse of either judgment or attention, resulting in very tragic consequences' (ts 28 - 29). The learned sentencing judge expressed no doubt that the appropriate sentence to be imposed was imprisonment, notwithstanding all the mitigating factors. The principal question in her Honour's mind was whether the term could be suspended. Her Honour correctly approached this question by applying the two-step process mandated by the High Court in Dinsdale v The Queen. She weighed all the mitigating factors against the seriousness of the offending and the need for general deterrence. Her Honour noted that there was much to be said in the appellant's favour and that she was mindful that a suspended term of imprisonment achieved general deterrence. In the end, her Honour concluded that suspending the term 'would fail to adequately reflect [the] loss of life and serious painful injury and loss, and would fail to send that message to the community which is so necessary, about the need for drivers to have regard to other drivers' (ts 29).

86 Her Honour's remarks, insofar as they related to the appellant's motor driver's licence disqualification, were simply to announce the disqualifications and order that they be served cumulatively (ts 30).

87 It was submitted that in light of the appellant's 'low' level of culpability and the numerous mitigating factors, including the appellant's fast-track pleas of guilty, his genuine remorse and his excellent antecedents and prospects, her Honour impliedly erred by not making a suspended imprisonment order.

88 In relation to the driver's licence disqualification orders, it was submitted that the total disqualification period of five years was disproportionate and thus manifestly excessive. The appellant submitted that instead of accumulating the disqualification periods, her Honour should have ordered, like the terms of imprisonment, that they be made concurrent with each other. In other words, it was submitted that the appropriate total period of disqualification was three years.

89 The respondent submitted that her Honour did not err in the exercise of her sentencing discretion. It was submitted that her Honour very carefully considered all the relevant factors in the case, including those favourable to the appellant and that the driving did not possess the aggravating features present in other cases of this kind. Her Honour, it was submitted, was right to emphasise the terrible consequences of the appellant's dangerous driving and general deterrence. It was submitted that the public's expectation is that in cases of this kind, immediate imprisonment should be imposed. The State contended that the sentence of immediate imprisonment was not unreasonable or unjust and should not be interfered with.

90 In relation to the driver's licence disqualification orders, the State contended that the total disqualification period of five years was appropriate, particularly in regard to the consequences and as a deterrent to others.

91 The Sentencing Act requires that any sentence must be commensurate with the seriousness of the offence: Sentencing Act, s 6(1). The seriousness of any offence must be determined by taking into account: (a) the statutory penalty; (b) the circumstances of the commission of the offence, including the vulnerability of any victim; (c) any aggravating factors; and (d) any mitigating factors: Sentencing Act, s 6(2).

92 A court must not impose a sentence of imprisonment on an offender unless it decides that the seriousness of the offence is such that only imprisonment can be justified, or the protection of the community requires it: Sentencing Act, s 6(4).

93 Section 39(2) of the Sentencing Act sets out in a hierarchical way the sentencing options available to a court. The most serious of these options is immediate imprisonment, followed by suspended imprisonment, either with or without conditions. Section 39(3) of the Sentencing Act provides that a court must not sentence an offender to a sentence set out in s 39(2) unless it is satisfied that none of the preceding options are appropriate. Thus, immediate imprisonment cannot be imposed unless a court is satisfied that a suspended imprisonment order is inappropriate. The question of whether or not to suspend involves revisiting all of the considerations relevant to the decision to impose a term of imprisonment. The power to suspend is not confined wholly or in part to cases where suspension would enhance the prospects of an offender's rehabilitation.

94 The principles upon which this appeal must be decided are well settled and were conveniently set out by McLure P and Owen JA in Wilson v The State of Western Australia [2010] WASCA 82 [2].

95 The grounds of appeal do not allege any express error on the part of the learned sentencing judge. They allege implied error. In other words, the appellant alleges that the error can be inferred from the sentence itself. In order to reach that conclusion, the appellant must demonstrate that the decision not to suspend the sentences was unreasonable or unjust.

96 To determine whether a sentence is manifestly excessive it is necessary to view it in the perspective of the maximum sentence for the offence, the standards of sentencing customarily observed with respect to that offence, the place which the criminal conduct occupies in the scale of offences of that type, and the personal circumstances of the offender: Chan v The Queen (1989) 38 A Crim R 337, 342.

97 The maximum penalties for the offences committed by the appellant have been recently and significantly increased. By s 38 of the Criminal Law Amendment (Homicide) Act 2008 (WA), which commenced on 1 August 2008, the maximum penalties increased from 4 years to their present levels. This Act was based on the Law Reform Commission of Western Australia's Review of the Law of Homicide, published in 2007, which described the penalties that existed as 'inadequate' when compared to the maximum penalty for aggravated dangerous driving occasioning death. The Commission recommended that the offences of dangerous driving occasioning death and dangerous driving occasioning grievous bodily harm should be separated and that the maximum penalty for dangerous driving occasioning death should be more than the maximum penalty for dangerous driving occasioning grievous bodily harm: Law Reform Commission of Western Australia, Review of the Law of Homicide, Final Report (2007) 131.

98 The maximum penalty for any offence is one of the yardsticks by which the sentence to be imposed is measured. It signifies Parliament's view of the gravity of the offence and must be taken into account. The fact that the maximum sentence has been increased indicates that sentences for that offence should be increased: Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 [31].

99 The maximum penalties for dangerous driving occasioning death and dangerous driving occasioning grievous bodily harm, should also be seen in the light of the penalties Parliament has chosen for other kinds of dangerous driving. The maximum penalty for a first offence of simple dangerous driving is a $3,000 fine, and for a first offence of dangerous driving occasioning bodily harm is a fine of $9,000 or 9 months' imprisonment. It is clear that the more serious the consequences, the greater the maximum penalty. Thus, in the present case, the fact that a death and grievous bodily harm have resulted is a very significant factor to be considered along with all of the other factors in the case, including but not limited to the culpability of the offender.

Standards of sentences imposed in other cases

100 The purpose of examining sentences imposed in other cases is to ensure broad consistency. What must always be borne in mind is that the sentence to be imposed in a particular case must be tailored to the individual circumstances of that case, and is not to be arrived at only by comparison with analogous cases. Further, comparable cases do not fix the boundaries within which judges in other cases must, or even ought, sentence: Munda v The State of Western Australia [2013] HCA 38; (2013) 87 ALJR 1035 [39].

101 Relevantly to the present case, there is no sentencing tariff for offences of dangerous driving occasioning death or dangerous driving occasioning grievous bodily harm. This is hardly surprising given the widely varying circumstances in which the offences may be committed, and of those who commit them.

102 The number of sentencing decisions in this court which deal with the current maximum penalties is small. They are Abeyakoon v Brown [2011] WASCA 63; (2011) 211 A Crim R 338; Libri v The State of Western Australia [2013] WASCA 113 and Lutumba v The State of Western Australia [2013] WASCA 172.

103 Libri and Lutumba may, for present purposes, be put to one side. Each of these cases involved driving markedly more culpable than in the present case. Abeyakoon v Brown has features similar to this case and requires closer attention. In that case, the appellant entered pleas of guilty in the Magistrates Court to the following charges: dangerous driving occasioning grievous bodily harm, dangerous driving occasioning bodily harm, failing to stop after an accident, and driving with a blood alcohol content in excess of 0.05%. He was sentenced to 18 months' imprisonment for the offence of dangerous driving occasioning grievous bodily harm, 6 months' imprisonment for the charge of dangerous driving occasioning bodily harm, and 12 months' imprisonment for the charge of failing to stop and render assistance after an accident. The sentencing magistrate ordered that all the terms of imprisonment be served concurrently, resulting in a total effective sentence of 18 months' imprisonment.

104 The facts of the case were as follows. The appellant, who was 24 years of age at the time of sentencing, with excellent antecedents and a very minor criminal record, comprised of two traffic offences, drove through a red light at the intersection of Morley Drive and Tonkin Highway, colliding with three vehicles. The driver of one of the vehicles the appellant struck suffered permanent injuries which left her unable to care for herself. Her passenger received fractures. At the time of the crash, the appellant had a blood alcohol content of 0.059 g of alcohol per 100 mls of blood, but in circumstances where he had stopped drinking hours beforehand and, in the meantime, had slept and eaten. When he woke from his sleep, he thought that more time had passed since his last drink than was the reality. The offender left the scene of the crash for a short time, but only because someone had behaved in an 'aggressive and abrupt' manner towards him. He returned to the scene soon after the crash, having spoken to the police.

105 An appeal against the sentence imposed by the learned magistrate to a single judge failed. However, the appeal from that decision succeeded. The court (McLure P, Pullin JA and Hall J) found that the learned magistrate made two express errors which enlivened this court's discretion to intervene and resentence the appellant. This court did not deal with a ground alleging that the sentence of imprisonment for the offence of dangerous driving occasioning grievous bodily harm was manifestly excessive.

106 On resentencing, this court imposed terms of imprisonment of 12 months for the offence of dangerous driving occasioning grievous bodily harm, 9 months for failing to stop and render assistance, and 6 months for dangerous driving occasioning bodily harm. The sentences were ordered to be served concurrently with each other and were, having regard to 'the low level of culpability' suspended for 12 months.

107 The present case is distinguishable from Abeyakoon v Brown. Unlike Abeyakoon v Brown, the driving in the present case caused the death of another, in addition to inflicting grievous bodily harm to a second person. Further, as I will explain shortly, I do not regard the appellant's culpability in this case as being at a low level.

108 There have been a number of appeal decisions against sentences imposed by magistrates determined by single judges, namely Hunt v Callaghan [2011] WASC 10; (2011) 59 MVR 426; Easthope v Whitney [2011] WASC 190; (2011) 211 A Crim R 511 and Winwood v Brown [2011] WASC 123. Of these, Hunt v Callaghan is most comparable to this case. There, the appellant, who was 19 years old at the time of the offence, was convicted after a trial in the Magistrates Court of one count of dangerous driving occasioning death. He drove along South Terrace in Como and collided with a vehicle driven by the deceased who was, at the time, reversing out of his driveway. Although the appellant was driving with a blood alcohol content in excess of 0.05%, the prosecution did not rely on this to prove the element of dangerous driving. Instead, the prosecution alleged that this element was constituted by the speed at which the appellant was driving. The appellant was alleged to be driving at about 80 km per hour in a 60 km per hour zone. An appeal against conviction was dismissed. However, an appeal against the sentence imposed at first instance of 18 months' immediate imprisonment was upheld.

109 Jenkins J found that the learned magistrate had made three material express errors which entitled her to resentence the appellant. In these circumstances, her Honour found that it was unnecessary to consider a ground of appeal which alleged that the sentence imposed was manifestly excessive. Her Honour resentenced the appellant to 18 months' imprisonment suspended for 2 years. She did this having regard to the appellant's youth, his favourable antecedents and that his offending was 'at the lower end' of the range of seriousness of offences of this type.

110 Hunt v Callaghan may be distinguished on its facts from the present case. Most obviously, the present case involves both a death and the doing of grievous bodily harm. Further, unlike the present case, the appellant's view of the deceased's vehicle was obscured. Finally, as her Honour put it, 'the prosecution could not prove that [the appellant's] speed caused [the deceased's] death' [262]. In contrast, the appellant in the present case was wholly responsible for the death and the grievous bodily harm.

111 Patterns of sentencing with respect to the recently increased penalties are yet to emerge. Certainly, under the law as it stood prior to the increase, it was difficult to identify sentences that were commonly imposed for the offences of dangerous driving causing death or grievous bodily harm. I respectfully adopt the remarks made by Owen JA (with whom Wheeler and Newnes JJA agreed) in Barron v The State of Western Australia [2010] WASCA 27; (2010) 55 MVR 123 who said that sentencing for this type of offending is 'quintessentially an area in which the discretion residing in the first instance judicial officer must be accorded due respect' [47].

The nature of the appellant's criminal conduct

112 I now turn to the place the criminal conduct occupies in the scale of offences of this type. In doing so, all the relevant circumstances must be evaluated. As this court explained in Eves v The State of Western Australia [2008] WASCA 7; (2008) 49 MVR 259, it is not a question of deciding whether the conduct falls into broad categories of momentary inattention on the one hand, and on the other, instances where the offender drives with a selfish disregard for other road users. In the past, that dichotomy was used to differentiate those cases in which a non-custodial or a custodial sentence was imposed; that is no longer the law [21] - [22] (McLure JA).

113 I unreservedly accept, as did the learned sentencing judge, that the offences were not committed in circumstances of speed, excessive consumption of alcohol, illicit drug use, deliberate dangerous driving, fatigue, or in other circumstances generally regarded as aggravating. But to say this has the potential to mask the seriousness of what the appellant actually did.

114 On the night in question, the appellant was driving in ideal driving conditions. There was nothing impeding his visibility. The road was dry and the weather conditions were good. There is nothing to suggest that the intersection or the traffic signals were obscured or difficult to see.

115 The evidence revealed that the appellant did not slow or brake as he approached the intersection. At its most favourable to the appellant, it may be inferred that he was unaware of not only the red light he contravened, but the amber light that preceded it. This indicates that the appellant's distraction was not merely momentary. In this state of inattention, he drove through an intersection, contrary to a red traffic signal in a built-up area and at a time when it was highly likely that other vehicles would be present and travelling into his path. Although the appellant was not travelling in excess of the speed limit, he was travelling at something approaching 70 km per hour in a relatively heavy vehicle. The potential for serious injury when a vehicle, travelling at that speed, collides with another vehicle is obvious. This was, in my view, a serious breach of the standards expected of a reasonable driver. Even when viewed as a momentary breach, it was, as the learned sentencing judge characterised it, an appalling breach. The consequences of his actions have been devastating.

116 The appellant's personal circumstances were unequivocally favourable to him. He has been, in all respects, a law abiding, productive member of the community. He poses no real risk of reoffending. He is remorseful and is racked with guilt as a result of what he has done. He is not the person he was before the crash. Personal deterrence is of little significance in this case.

117 This court is not entitled to intervene because it would have, had it been sentencing the appellant at first instance, imposed a different sentence. As I have already explained, in the absence of express error, her Honour's sentencing discretion cannot be interfered with unless it was unreasonable or unjust to sentence the appellant to a term of immediate imprisonment.

118 In my opinion, it has not been demonstrated that the imposition of immediate imprisonment as opposed to suspended imprisonment was unreasonable and unjust. For the reasons that I have already explained, I do not regard the circumstances of the offending as involving a low degree of culpability. Further, her Honour was correct to give emphasis to the consequences of the appellant's driving. As I have said, the recent increases in the maximum penalties show that it is Parliament's intention that sentences for offences of dangerous driving occasioning death and dangerous driving occasioning grievous bodily harm should increase. Although it was never the appellant's intention to harm the victims by driving in the manner that he did, his conduct plainly put others at serious risk of harm. It cannot be overlooked that as a result of the appellant's dangerous driving, he took a human life and badly injured another.

119 Her Honour correctly emphasised general deterrence. The question of the role of general deterrence in 'lower level' forms of dangerous driving causing death (the analogous offence under the Crimes Act 1958 (Vic)) was recently discussed in Director of Public Prosecutions v Janson [2011] VSCA 19; (2011) 31 VR 222. In that case, Nettle JA, with whom Kyrou AJA agreed, observed that, generally speaking, subject to the overarching principle of proportionality mandated by Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465, general deterrence is an important consideration in all cases of dangerous driving causing death [35].

120 The appellant's personal circumstances and other mitigating factors, not the least of which were his fast-track pleas of guilty accompanied by genuine remorse, justified leniency. This was reflected in the length of the sentences that were imposed, and the order for total concurrency. Her Honour correctly took into account all of these matters again when considering whether to impose a suspended imprisonment order. She concluded that these factors were outweighed by the seriousness of the offending and its consequences and the need for general deterrence. She was entitled to do so. The sentence was not unreasonable or unjust.

121 I have not decided the outcome on ground 1 having regard to the alleged community expectation that terms of immediate imprisonment would be imposed in the present case. It would not be just to do so because a submission to this effect was not made by the prosecution in the proceedings before her Honour.

122 As I am unable to discern any implied error from the sentences imposed by her Honour, this court cannot intervene. Ground 1 must be dismissed.

123 I now turn to proposed ground 3. This ground alleges that the period of the driver's licence disqualifications which were imposed on the appellant was manifestly excessive. As the appellant's counsel explained, the ground does not attack the individual periods of disqualification. Rather, the appellant's complaint is that the individual disqualification periods should not have been accumulated to arrive at a total of five years. The appellant's proposition is that the disqualification periods should have been made concurrent, with the result that the total disqualification period should have been three years.

124 Pursuant to s 59(3) of the Road Traffic Act, a driver's licence disqualification of 'no less than two years' is a mandatory and additional part of any sentence imposed for a contravention of s 59(1)(b) of the Road Traffic Act. The period of two years is not the maximum disqualification, as the words 'no less' clearly convey. A sentencer has the discretion to impose a disqualification period longer than two years. There is no defined maximum disqualification period. In theory, a lifetime disqualification period could be imposed.

125 The question of the length of a driver's licence disqualification is a matter of discretion to be decided having regard to the relevant statutory provisions and all of the circumstances of a case. The same considerations that inform the sentencing of the offender generally, will inform the question of the length of any disqualification. Thus, any disqualification must be proportionate to the gravity of the offence and be no longer than is required to achieve the purposes of punishment, such as protection of the community, deterrence, retribution and reform.

126 The appellant submitted that the total disqualification imposed in this case was longer than the disqualification periods imposed in the a number of cases: Abeyakoon v Brown; The State of Western Australia v Olive [2011] WASCA 25; (2011) 57 MVR 269; Taylor v The State of Western Australia [2009] WASCA 226; Easthope v Whitney; Winwood v Brown and Hunt v Callaghan. The relevance of this is limited because none of these cases involved an appeal against the disqualification imposed at first instance. That said, the total disqualification period here is considerably longer than any period imposed in those cases.

127 The ultimate question is whether the total period of five years disqualification was unjust or unreasonable. With great respect to the learned sentencing judge, in my opinion, it was. I can see no reason why the disqualifications should not have been ordered to be served concurrently in the same way that the terms of imprisonment were. In my opinion, a total disqualification of three years would have been sufficient having regard to the circumstances of the offence and to satisfy the purposes of punishment.

128 I would give leave to the appellant to amend his grounds of appeal to add ground 3. I would give leave to appeal in respect of the ground and uphold it. I would order that the disqualification imposed on count 1 be served concurrently with the disqualification imposed on count 2.

129 In order to give effect to my reasons, I would make the following orders.

The appellant has leave to amend his grounds of appeal to add ground 3.
Leave to appeal is granted in respect of ground 3 and the ground is upheld.
The sentences imposed by her Honour stand, save that the order that the disqualification period in count 1 be served cumulatively with the disqualification period imposed in count 2 be set aside and substituted with an order that the disqualification be served concurrently with the period of disqualification in count 2.
The appeal is otherwise dismissed.

Law Amendment (Homicide) Act 2008

Abeyakoon v Brown

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (192 paragraphs)

TIMBRELL -v- THE STATE OF WESTERN AUSTRALIA [No 2] [2013] WASCA 269 (28 November 2013)

Parties

Legislation Cited (2)

Cases Cited (13)