Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law - Appeal against sentence - Dangerous driving occasioning death - Dangerous driving occasioning bodily harm - Manifest excess - Early plea of guilty - Maximum reduction pursuant to s 9AA of the Sentencing Act 1995 (WA)

Road Traffic Act 1974 (WA), s 59(1)(b), s 59A(1)(b), s 64(1)

Sentencing Act 1995 (WA), s 9AA

Appellant : David McKenzie Barristers and Solicitors

Abraham v The State of Western Australia [2014] WASCA 151

Beins v The State of Western Australia [No 2] [2014] WASCA 54

DPP v QPX [2014] VSC 189

Forkin v The State of Western Australia [2013] WASCA 51

Gray v The State of Western Australia [2015] WASCA 108

Kershaw v The State of Western Australia [2014] WASCA 111

Lutumba v The State of Western Australia [2013] WASCA 172

Rossi v The State of Western Australia [2014] WASCA 189

Rubin v The State of Western Australia [2016] WASCA 2

Thomas v The State of Western Australia [2014] WASCA 202

Timbrell v The State of Western Australia [No 2] [2013] WASCA 269

Vagh v The State of Western Australia [2007] WASCA 17

Wilson v The State of Western Australia [2010] WASCA 82

1 REASONS OF THE COURT: This is an appeal against sentence. The appellant pleaded guilty to one count on an indictment of dangerous driving occasioning death, contrary to s 59(1)(b) of the Road Traffic Act 1974 (WA) and to four counts contained in a notice pursuant to s 32 of the Sentencing Act 1995 (WA), being three counts of dangerous driving occasioning bodily harm, contrary to s 59A(1)(b) of the Road Traffic Act and one count of driving with a blood alcohol content exceeding 0.08 g of alcohol per 100 ml of blood, contrary to s 64(1) of the Road Traffic Act.

2 On 4 February 2016, the appellant was sentenced by Petrusa DCJ as follows:

4 years 6 months' immediate imprisonment, disqualified from holding or obtaining a driver's licence for 3 years

6 months' immediate imprisonment, disqualified from holding or obtaining a driver's licence for 3 years

3 months' immediate imprisonment, disqualified from holding or obtaining a driver's licence for 12 months

3 months' immediate imprisonment, disqualified from holding or obtaining a driver's licence for 12 months

$650 fine, disqualified from holding or obtaining a driver's licence for 8 months

3 Her Honour ordered that all of the terms of immediate imprisonment be served concurrently. She made the same order with respect to the periods of disqualification. Leaving aside the fine, the total effective sentence was 4 years and 6 months' immediate imprisonment and a driver's licence disqualification of 3 years. The appellant was made eligible for parole and the sentences of immediate imprisonment were backdated to commence on 25 January 2016.

4 The grounds of appeal only concern the terms of immediate imprisonment. Ground 1 alleges that the sentence imposed for the offence of dangerous driving occasioning death was manifestly excessive and ground 2 alleges that her Honour erred by not giving the appellant the maximum reduction of 25%, pursuant to s 9AA of the Sentencing Act for her plea of guilty. Leave to appeal has been granted on ground 1. The application for leave to appeal on ground 2 was referred to the hearing of the appeal.

5 At the time of the offending, the appellant was 47 years of age and a person of previous good character. The victim of the dangerous driving occasioning death offence was her 15-year-old daughter, Lois Kirby. The victims of the other counts were three of Lois's teenage friends.

6 The facts of the offending as found by her Honour are not disputed. They are as follows. On 14 March 2015, Lois invited some of her friends to her house. In the months prior, Lois had what her Honour described as 'mental health challenges' following the breakdown of her relationship with her boyfriend. As a result, Lois went through a period of social withdrawal. However, she had begun to feel better. The gathering on 14 March 2015 was the first night in some time that Lois had been with her friends.

7 Lois and her friends were playing drinking games. The appellant joined in those games. Eventually, the group decided to join more friends at another party elsewhere. The appellant, wanting to extend her daughter's enjoyment of the night, agreed to drive her and her friends to the other party. The appellant thought that she was 'okay to drive', but she had not kept track of how much alcohol she had consumed.

8 At about 10 pm, the appellant, her daughter and five others got into the appellant's four-door Jeep Cherokee wagon. The intention was to drive from the appellant's home in Quinns Rock to the other party in Ridgewood. There were not enough seats in the vehicle. Two of the passengers, one of whom was Lois, sat in the rear luggage compartment where there were no seatbelts.

9 While driving along a section of Marmion Avenue about 200 m past the intersection with Santa Barbara Parade, the appellant began to tailgate a moped. This was on a straight section of road that was a dual carriageway separated by a median strip. The speed limit in the area was 80 km per hour.

10 The moped was travelling in the same direction and in the same lane as the appellant's vehicle. Some of the passengers in the appellant's vehicle encouraged the appellant to scare the moped driver and his pillion passenger. The appellant obliged by deliberately swerving her vehicle from left to right in the kerbside lane, with the object of scaring those on the moped. While driving in this obviously dangerous manner, the appellant lost control of her vehicle. It rolled from the right-hand side edge of the road, across both lanes of traffic and came to rest on its roof on the left-hand side verge of the road. In the process, Lois was thrown from the vehicle. She suffered extensive and serious internal injuries from which she died.

11 Three other passengers sustained injuries which constituted bodily harm. Sophie Pugh, who was in the front passenger seat, sustained bruising to her right orbital wall and maxillary sinus. She also had abrasions to both her knees and a serious open wound to her left arm which required skin grafting. Wayne Halpenny, who had been sitting in the middle rear seat, sustained bruising to his left arm and tenderness to his cervical spine. Dylan Eastwood, who had been in the rear luggage compartment with Lois, sustained abrasions to his left hand and a mild concussion.

12 Police who attended the scene noted a strong smell of alcohol on the appellant. She appeared to them to be acting in a drunken manner. In due course, a blood sample revealed a blood alcohol content of 0.110%.

13 The learned sentencing judge described what occurred as 'a tragedy, but a tragedy that could have been avoided' (ts 22). She characterised the manner of the appellant's driving as 'a serious example of dangerous driving'. She elaborated in this way:

That you would drive in a blatantly risky and dangerous way is itself a grave breach of the standards expected of drivers on our roads, but that you would do so deliberately, and do so deliberately, whilst knowingly affected by alcohol and knowing that you had two passengers unrestrained in the luggage compartment of the car is particularly egregious (ts 22).

The general principles applicable to appeals against sentence

14 We adopt the statements of the general principles applicable to appeals against sentence made by McLure P and Owen JA in Wilson v The State of Western Australia [2010] WASCA 82 [2]. The statement is well known and need not be repeated.

15 We will deal with the grounds of appeal in reverse order.

1. The sentencing discretion miscarried when Her Honour did not afford the appellant the maximum reduction pursuant to section 9AA of the Sentencing Act 1995 (the Act);

Particulars

2.1 The State accepted that the pleas of guilty were entered at the earliest reasonable opportunity;

2.2 Her Honour reduced the sentence by 20% and not the specified maximum of 25% under the Act; and

2.3 There was no apparent reason either, express or implied, why the appellant was not afforded the maximum reduction of 25% under the Act.

17 Section 9AA of the Sentencing Act reads:

9AA**. Plea of guilty, sentence may be reduced in case of**

(1) In this section -

fixed term has the meaning given in section 85(1);

head sentence, for an offence, means the sentence that a court would have imposed for the offence if -

(a) the offender had been found guilty after a plea of not guilty; and

(b) there were no mitigating factors;

victim has the meaning given in section 13.

(2) If a person pleads guilty to a charge for an offence, the court may reduce the head sentence for the offence in order to recognise the benefits to the State, and to any victim of or witness to the offence, resulting from the plea.

(3) The earlier in the proceedings the plea is made, the greater the reduction in the sentence may be.

(4) If the head sentence for an offence is or includes a fixed term, the court must not reduce the fixed term under subsection (2) -

(a) by more than 25%; or

(b) by 25%, unless the offender pleaded guilty, or indicated that he or she would plead guilty, at the first reasonable opportunity.

(5) If a court reduces the head sentence for an offence under subsection (2), the court must state that fact and the extent of the reduction in open court.

(6) This section does not prevent the court from reducing the head sentence for an offence because of any mitigating factor other than a plea of guilty.

18 It was not disputed by the respondent that the appellant entered her pleas of guilty at the first reasonable opportunity.

19 Her Honour referred to the pleas of guilty at the outset of her sentencing remarks (ts 21). Later, in the context of articulating the mitigating factors in the case, she said:

Your remorse and acceptance of responsibility is underscored by your plea of guilty at an early time and you will receive a discount on your sentence for this (ts 25).

20 Just prior to her Honour announcing the individual sentences she imposed, she said:

Having regard to the circumstances of the offence, the aggravating factors identified, the mitigating factors mentioned and the discount of 20% pursuant to s 9AA of the Sentencing Act ... (ts 26).

21 In support of ground 2, Mr Watters, on behalf of the appellant, made three submissions. First, he contended that her Honour misapprehended the maximum discount that could be given pursuant to s 9AA of the Sentencing Act. He contended that her Honour took the maximum to be 20% rather than 25%, as provided for in s 9AA(4) of the Sentencing Act. Second, if her Honour did not misapprehend the maximum discount that could be given under s 9AA, in all of the circumstances of the case, it was not open to her to impose a discount less than 25%. Third, assuming that her Honour exercised a discretion to not impose the maximum discount of 25%, she failed to give adequate reasons for exercising the discretion in the manner she did.

22 Section 9AA of the Sentencing Act was inserted by the Sentencing Amendment Act 2012 (WA) and came into operation on 20 December 2012. The insertion of s 9AA was accompanied by the deletion of s 8(2) of the Act. This court first considered s 9AA in Forkin v The State of Western Australia [2013] WASCA 51 and has done so in a substantial number of cases since then. It is unnecessary to canvass all of those cases. We will only refer to those which are relevant to the submissions made on behalf of the appellant.

23 In Abraham v The State of Western Australia [2014] WASCA 151 [50], Buss JA, with whom McLure P agreed, stated that the apparent purpose or object underlying the repeal of s 8(2) and the introduction of s 9AA was:

(a) to impose a maximum limit on the discount available for a plea of guilty, namely 25% of the head sentence;

(b) to ensure the maximum discount of 25% may only be given where an offender pleads guilty, or indicates that he or she will plead guilty, at the first reasonable opportunity;

(c) to confine the availability of the discount under s 9AA for a plea of guilty to the recognition of 'the benefits to the State, and to any victim of or witness to the offence, resulting from the plea'; and

(d) to increase the transparency of the sentencing process by requiring the sentencing judge to state in open court the fact and the extent of any discount under s 9AA for a plea of guilty.

24 In Rossi v The State of Western Australia [2014] WASCA 189, and later in Thomas v The State of Western Australia [2014] WASCA 202, this court held that the utilitarian considerations in s 9AA(2) exhaustively state the matters to be taken into account in determining the extent of any discount for a plea of guilty.

25 In Abraham [62], Buss JA rejected a submission put on behalf of the appellant in that case that if an offender pleads guilty at the first reasonable opportunity, the sentencing judge must allow a discount of 25% under s 9AA. Buss JA went on to explain that:

The nature, character and extent of 'the benefits to the State, and to any victim of or witness to the offence, resulting from the plea', within s 9AA(2), may differ as between particular cases where the offender has entered a plea at the first reasonable opportunity. The sentencing judge retains a discretion in deciding upon the discount to be given in each case [62].

26 In Beins v The State of Western Australia [No 2] [2014] WASCA 54, McLure P, with whom Mazza JA agreed, held that the strength of the State case can be taken into account in assessing the quantum of any reduction to be given pursuant to s 9AA under the rubric of 'the benefits to the State' in s 9AA(2). See also Abraham [57].

27 We are unable to accept the submission that her Honour misapprehended the maximum reduction available under s 9AA. Section 9AA is applied on a daily basis in the courts of this State. There is nothing in the sentencing proceedings which points to her Honour making the kind of basic error now alleged by the appellant. The submission is based on no more than speculation.

28 We are also unable to accept the submission that it was not open to her Honour to impose a s 9AA discount less than 25%. While the appellant entered her pleas of guilty at the first reasonable opportunity, and it may be accepted that the pleas of guilty relieved the surviving victims of the offences of the anxiety of having to testify against the appellant and thereby relive the crash which caused their injuries, it cannot be overlooked that the case against the appellant was overwhelming. The appellant's driving was undeniably dangerous and caused the death of her daughter and the injuries that were sustained by the passengers. A plea of guilty at the first reasonable opportunity enlivens the power to grant the maximum discount of 25%. Once the power is enlivened, the sentencing judge has a discretion that is informed by the considerations in s 9AA(2): Beins [18]. It was open to the sentencing judge not to give the maximum discount of 25% even though the pleas were entered at the first reasonable opportunity, having regard to the strength of the State's case.

29 Finally, we will deal with the appellant's submission that the learned sentencing judge's reasons for not imposing the maximum discount were inadequate. The submission assumes that a sentencing judge is obliged to state his or her reasons in the event that the maximum discount under s 9AA is not given. The basis for this assumption is unexplained and we are unable to accept it.

30 Section 9AA of the Sentencing Act itself is not the source of any such obligation. Section 9AA(5) only requires a sentencer to state that a reduction has been given and the extent of any reduction. There is no additional requirement to state the reasons for these decisions. There has been no case decided by this court which supports the appellant's contention. Further, there is no common law obligation which requires a sentencer to specifically give reasons for the weight that is accorded to any particular mitigating or aggravating factor.

31 Frequently, in this court's experience, a sentencer will explain why a discount of less than 25% has been given when an offender has pleaded guilty at the first reasonable opportunity. This is a desirable practice, but the failure to do so does not, in itself, constitute an appellable error.

32 In any event, in the present case, while her Honour did not express reasons for not giving a 25% discount, her reasons for doing so may be legitimately inferred from an examination of the sentencing remarks as a whole. It is manifest from the sentencing remarks and, in particular, her findings of fact relevant to the appellant's driving that the State's case against the appellant was, as we have said, overwhelming. The appellant's convictions were inevitable. It may properly be inferred that the strength of the State's case informed her Honour's decision to impose a 20% reduction pursuant to s 9AA.

33 In our opinion, ground 2 has no reasonable prospect of succeeding. Leave to appeal should be refused in relation to it.

1. The sentence imposed for Count 1 was, in all the circumstances, manifestly excessive;

Particulars

1.1 The plea of guilty;

1.2 The appellant's antecedents;

1.3 The criminality involved; and

1.4 Sentences imposed in broadly comparable cases.

35 Is it not suggested by the appellant that her Honour erred in imposing a term of immediate imprisonment for the offence in the indictment. Essentially, it was submitted on behalf of the appellant that the term of immediate imprisonment of 4 ½ years was excessive, having regard to the appellant's favourable antecedents, the ongoing guilt that the appellant will suffer from having unintentionally killed her own daughter and having regard to the comparable cases.

36 To determine whether a sentence is manifestly excessive, it is necessary to view it in light 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 on the scale of offences of that type and the personal circumstances of the offender.

37 The maximum penalty for the offence of dangerous driving occasioning death contrary to s 59(1)(b) of the Road Traffic 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).

38 The appellant does not challenge her Honour's characterisation of the offence as 'a serious example of dangerous driving'. To have done so would have been futile. The appellant chose to drive a vehicle, having consumed a quantity of alcohol sufficient to result in a blood alcohol reading of 0.110%; that is, more than double the legal limit. She was observed by police at the scene of the crash to exhibit obvious signs of intoxication. Her decision to drive a motor vehicle in such a state was in no way mitigated by her desire to continue her daughter's enjoyment of the night; even less so, having regard to the fact that she undertook the journey to the other party in an overloaded vehicle with six passengers, two of whom did not have seatbelts to wear.

39 While in charge of her motor vehicle she deliberately drove in a dangerous manner. First, she tailgated the moped, putting the rider and his pillion passenger at some risk of harm. Then she deliberately swerved her vehicle from left to right in the kerbside lane, a manoeuvre which led to the appellant losing control of the vehicle and causing it to roll across both lanes of traffic. As a direct result, Lois was killed.

40 This was no inadvertent, momentary lack of attention. The offence occurred because of the appellant's consumption of alcohol and her decision to drive her vehicle in a deliberately dangerous manner with the object of 'scaring' those on the moped and entertaining those travelling in her car. It was a complete abrogation of her responsibility as a driver.

41 The purpose of examining sentences imposed in other cases is to ensure consistency in the application of principle and broad consistency in outcome. Comparable cases do not fix the boundaries within which judges in other cases must, or even ought, sentence. What must always be borne in mind is that each case must be judged on its own particular facts and circumstances.

42 Since the maximum penalty for offences of dangerous driving occasioning death were increased in 2008, there has been a relatively small number of sentencing decisions. Among them were the cases cited on behalf of the appellant, including Kershaw v The State of Western Australia [2014] WASCA 111; Timbrell v The State of Western Australia [No 2] [2013] WASCA 269; Rubin v The State of Western Australia [2016] WASCA 2; Gray v The State of Western Australia [2015] WASCA 108 and Lutumba v The State of Western Australia [2013] WASCA 172. There is little purpose in comparing the present case with any of those cases. There is no tariff for offences of dangerous driving occasioning death, having regard to the highly variable circumstances of such offending and the offenders themselves. Further, patterns of sentencing with respect to the recently increased penalties for dangerous driving occasioning death are still yet to emerge.

43 It must be acknowledged that the appellant's antecedents were favourable. She is plainly remorseful and poses little or no risk of reoffending in a similar way again. It must be accepted that she is wracked with guilt by her actions and will have to live the rest of her life in the knowledge that she, by her actions, took the life of her daughter. We do not underestimate this aspect of lifelong punishment. It is clear that her Honour correctly took this factor into account as a mitigating circumstance (ts 25). In the written submissions filed on behalf of the appellant, it was alleged that her Honour did not give enough weight to this mitigating factor. The answer to this submission is to observe, as this court has on many occasions in the past, that an allegation of a weighting error does not give rise to an appellable error unless it amounts to a failure to exercise the discretion actually entrusted to the court: Vagh v The State of Western Australia [2007] WASCA 17 [76]. It is not alleged that her Honour erred in this way.

44 The appellant cited in support of ground 1 the Victorian case of DPP v QPX [2014] VSC 189. That case is of no assistance. DPP v QPX involved an offender who committed infanticide by slapping and shaking her children. The facts of the case are readily distinguishable from the present case. There were factors personal to the offender in DPP v QPX which are not present in this case. Finally, DPP v QPX is a first instance sentencing decision of the Supreme Court of Victoria and has little precedential value.

45 An important sentencing consideration in this case is general deterrence. While it may be accepted that personal deterrence has little, if any, part to play in the present case, general deterrence does. The message must continue to be given by the courts that the manner of driving in the present case is serious criminal behaviour which, when it results in death (or, for that matter, serious injury), will be met with serious consequences.

46 Having considered all of the relevant sentencing factors in the present case, we have not been persuaded that it was outside the range of a sound sentencing discretion. In all of the circumstances, the sentence that was imposed was not unreasonable or plainly unjust. Ground 1 has not been made out. The sentence is not manifestly excessive.

47 The grounds of appeal have not been made out. The appeal against sentence must be dismissed. The orders we would make are:

1. Leave to appeal on ground 2 is refused.
2. The appeal is dismissed.