Criminal law - Appeal against sentence - Manslaughter - Whether offence in worst category of its type - Manifest excess

Criminal Appeals Act 2004 (WA), s 41(2)(a), s 41(2)(b), s 41(3)(b)

Sentencing Act 1995 (WA), s 9AA

Bensegger v The Queen [1979] WAR 65

Brown v The State of Western Australia [2011] WASCA 111; (2011) 207 A Crim R 533

GHK v The State of Western Australia [2014] WASCA 19

Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520

House v The King [1936] HCA 40; (1936) 55 CLR 499

McNamara v The State of Western Australia [2013] WASCA 63

Penny v The State of Western Australia [2006] WASCA 173; (2006) 33 WAR 48

R v Tait (1979) 46 FLR 386

The State of Western Australia v Auckram [2013] WASCA 256; (2013) 229 A Crim R 397

The State of Western Australia v BLM [2009] WASCA 88; (2009) 40 WAR 414

The State of Western Australia v Munda [2012] WASCA 164; (2012) 43 WAR 137

Veen v The Queen [No 2] [1988] HCA 14; (1988) 164 CLR 465

2 MAZZA JA: This is an offender's appeal against sentence.

3 The appellant was charged on indictment in the Supreme Court that on 6 December 2012 at Byford he, with intent to harm, did an act as a result of which the life, health or safety of Michael Douglas Wormall was, or was likely to be, endangered (count 1) and that he unlawfully killed Mark Anthony Noormets (count 2), contrary to s 304(2) and s 280, respectively, of the Criminal Code (WA).

4 On 11 February 2014, on the second day of a scheduled 10-day trial, the appellant pleaded guilty to the charges.

5 On 7 April 2014, Simmonds J sentenced the appellant to 3 years 1 month's imprisonment on count 1 and 12 years 4 months' imprisonment on count 2. His Honour, in effect, ordered that the sentence on count 2 commence 8 months after the commencement of the sentence on count 1 on 10 December 2012. Thus, the total effective sentence was 13 years' imprisonment, backdated to commence on 10 December 2012. The appellant was made eligible for parole.

6 The sole ground of appeal in the appellant's case alleged that the sentence for count 2, being the manslaughter offence, was manifestly excessive. Leave to appeal has been granted in respect of this ground. This ground alleges an implied error. However, the written submissions in support of the ground appeared to allege two express errors, the first being that his Honour gave an insufficient discount for each of the appellant's pleas of guilty; the second being an allegation that his Honour erred in characterising count 2 as being in the worst category of offending of its type.

7 At the outset of the hearing of the appeal, the court sought to clarify the position with counsel for the appellant. Counsel, in substance, abandoned the allegation that his Honour gave an insufficient discount for the pleas of guilty (appeal ts 3). In respect of the alleged error in the characterisation of count 2, the appellant's counsel, with the consent of the respondent, was given leave to add a further ground of appeal (ground 2) to allege this error (appeal ts 2 - 4).

8 The circumstances of the offending are not in dispute.

9 At about 2 pm on 6 December 2012, the appellant was driving his Great Wall utility in a westerly direction on Thomas Road, Byford. He was, at the time, heavily intoxicated by methylamphetamine. A Ford 150 utility being driven by Mr Wormall was driving behind the appellant's vehicle. After indicating, Mr Wormall pulled out, intending to pass the appellant's vehicle. As he overtook the vehicle, the appellant suddenly, and without any justification, rammed his vehicle into the side of the Ford 150. In an attempt to keep his vehicle on the road, Mr Wormall steered his vehicle back into the Great Wall. Mr Wormall braked and then managed to free his utility from the appellant's vehicle. In order to get away from the appellant, Mr Wormall performed a three-point turn and drove in an easterly direction along Thomas Road towards the South Western Highway, with the appellant in pursuit.

10 Thomas Road terminates at the South Western Highway in a T-junction. The intersection is controlled by traffic signals. Mr Wormall's intention was to head north on the South Western Highway to drive to the Armadale police station. As he approached the intersection, Mr Wormall changed lanes sharply in order to turn left. However, Mr Wormall's progress was impeded by a red light. The appellant caught up with Mr Wormall's vehicle at the intersection and rammed his vehicle into Mr Wormall's, forcing it sideway into the kerb.

11 Still intent on driving to the Armadale police station, Mr Wormall then headed north on the South Western Highway at speed. The appellant continued to pursue Mr Wormall. Near the intersection of Rails Crescent, Mr Wormall slowed down to about 90 km per hour as he came up behind traffic. The appellant then, for the third time, rammed Mr Wormall's utility, causing it to spin around onto the wrong side of the road so that it was facing south, that is, towards Byford.

12 Fearing for his safety and in a state of terror, Mr Wormall sped along the South Western Highway towards Byford. At this point, his intention was to drive to the Mundijong police station. When he looked in his rear vision mirror, Mr Wormall saw the appellant's vehicle coming towards him rapidly. The two vehicles proceeded through the intersection of South Western Highway and Thomas Road, the appellant still in pursuit. A short distance after that intersection, the two southbound lanes of the South Western Highway merge into one.

13 In a desperate attempt to escape the appellant, Mr Wormall sped past a number of vehicles. Once the appellant had passed the point where the two southbound lanes merge into one, and with the intention of causing harm to Mr Wormall by ramming into his vehicle, the appellant drove at a dangerous speed onto the gravel verge, to the left of the lane. He then overtook the vehicles that were in front of him, causing other motorists to take evasive action.

14 At this point, with at least part of his vehicle still on the gravel verge, the appellant lost control. As a result, the appellant's vehicle suddenly slewed, effectively in a diagonal direction across the left-hand lane, onto the wrong side of the road and into the path of a Nissan X-trail being driven by Mr Noormets. The two vehicles collided more or less head on. Mr Noormets had no realistic opportunity to avoid the collision. Although it is not possible to determine how fast the appellant's vehicle was travelling at the point of impact, it was travelling fast enough to arrest the forward motion of Mr Noormets' vehicle and push it backwards.

15 Mr Noormets died at the scene. The appellant was pinned in his vehicle and suffered serious physical injuries which were described in the sentencing proceedings by the appellant's counsel as 'a crushed left foot and multiple bone injuries'.

16 When approached by ambulance officers, the appellant, in effect, said that he was the person being pursued. Despite his injuries, the appellant declined medical help. Nevertheless, he was quickly airlifted to Royal Perth Hospital. There, a blood sample was taken from the appellant which, on analysis, revealed methylamphetamine and amphetamines in concentrations of 0.29 mg and 0.02 mg per litre of blood. These levels are significant. The primary court was provided with a toxicology report prepared by Professor David Joyce dated 17 January 2013. Professor Joyce concluded:

[The appellant] had blood concentrations of methylamphetamine and amphetamine that indicated a state of intoxication at the time of driving and predicted driving impairment.

The driving would be well explained by intoxication with methylamphetamine.

It is therefore my opinion that [the appellant] was affected by drugs while driving. The effects of methylamphetamine on risk-taking, anger, and propensity to violence would make him incapable of safely driving a motor vehicle under normal driving conditions (AB 126).

17 The court was presented with three victim impact statements with respect to count 2. One statement was written by Mr Noormets' partner, from whom he had amicably separated not long before his death; the others were written by his two teenage daughters. Tragically, by coincidence, his former partner came across the crash scene shortly after the collision. Mr Noormets' death and its aftermath have caused her great heartache. The adverse effects upon Mr Noormets' children have been profound.

18 At the time he was sentenced, the appellant was 36 years of age. His parents separated when he was very young. The appellant described his childhood as 'relatively normal'. After completing year 12, he commenced training as a floor and wall tiler, but did not complete the course. Since then, he has been gainfully employed, including some managerial positions. However, at the time of the offences, he was unemployed.

19 The appellant has two children from two prior relationships. At the time of the commission of the offences, the appellant was under stress for various reasons. Having fallen behind in his rent, he had been given an eviction notice. He was, as I have said, unemployed. On the day in question, he went to visit his son at a day-care centre, only to find he was not there.

20 The appellant has a history of illicit drug use, including using amphetamines. It is not possible to gauge the full extent of the appellant's drug use as he appears to minimise it.

21 There was no evidence before his Honour of any significant long-term effects of the physical injuries suffered by the appellant in the crash with Mr Noormets' vehicle, save for ongoing pain associated with a broken wrist. A psychological report, to which I will refer again shortly, indicated that the appellant has no psychiatric illness or any other mental condition.

22 The appellant has a significant criminal history. Of particular relevance is the appellant's traffic record. He has convictions for driving without a licence (including while under court-ordered and fine suspensions), speeding, drink driving, reckless driving and wilfully misleading police. In addition to his traffic record, the appellant has also been convicted of cultivating a prohibited plant, stealing as a servant, assault occasioning bodily harm and breach of bail.

23 In 2007, the appellant was placed on an intensive supervision order by the District Court in respect of the offence of assault occasioning bodily harm. As part of that order, he participated in a Time for a Change program. It was noted in that program that he minimised his offending behaviour and displayed an inability to regulate his emotions.

The pre-sentence report and psychological report

24 The learned sentencing judge had the benefit of a pre-sentence report, dated 26 March 2014, and a psychological report prepared by Ms Mary-Anne Martin, dated 25 March 2014. It was noted in both reports that the appellant has no recollection of his offending behaviour. It was not suggested that this amnesia was feigned. However, in neither report is there any real sign that the appellant has taken responsibility for his actions. In fact, the appellant's pre-sentence report indicates he tends to 'externalise the blame' for his offending behaviour.

25 The reports noted that he is unwilling to accept that he was suffering from the effects of methylamphetamine, or that he acted out of anger because of some perceived slight or infraction by Mr Wormall. The pre-sentence report author noted that the appellant demonstrated some victim empathy, although 'it remains questionable since he ultimately reflected on what it was like for him'.

26 In Ms Martin's opinion, the appellant is 'not psychologically minded' and 'lacks insight into his dealings with the world'. The appellant appeared to her 'to be rigid and over-controlled'. She wrote that people with the appellant's 'over-controlled' personality style, 'will often not experience or recognise their angry feelings'. She continued:

Situations that, for others, would normally be highly frustrating do not often provoke an angry response and are dealt with in a passive manner, ie, walk away, try again later. They are not easily provoked and are not easily frustrated. However, [the appellant's] personality style can be the most explosive when their inhibitions to anger are overcome.

27 Despite his illicit drug use and its catastrophic consequences, Ms Martin reported that the appellant does not believe he has a substance abuse problem.

28 His Honour sentenced the appellant shortly after the prosecutor and defence counsel completed their oral submissions. The prosecutor submitted that 'the offending in terms of the manslaughter is in the worst category of offending for motor vehicle manslaughter cases' (ts 191). This submission was, in substance, repeated a short time later (ts 194).

29 The learned sentencing judge identified the mitigating factors as being:

1. the pleas of guilty;
2. that the appellant had a 'measure' of victim empathy; and
3. what his Honour perceived as the appellant's prospects of rehabilitation.

30 His Honour found, in substance, that there was no mitigation in the appellant's criminal history, noting, in respect of traffic matters, he had 'a concern' about the appellant's preparedness to disobey road traffic laws. He found that there was no mitigation with respect to the stressors that he submitted had led to his offending.

31 The primary judge identified the aggravating factors with respect to the offence of manslaughter as follows:

1. The appellant's conduct was 'highly reckless', noting that the appellant's driving:

... was directed at catching and hitting Mr Wormall's vehicle, by attempting to pass vehicles on a major highway on the left-hand side of the road, unlawfully, through passing those vehicles on the left, entailing at least part of your vehicle leaving the road surface and going onto the gravel. This created a grave risk of a loss of control of your vehicle, where that loss of control would occur in close proximity to other vehicles travelling the highway both in your direction and in the opposite direction (ts 29).

1. The appellant was driving at a speed which was 'grossly inappropriate to the position in which that vehicle was being driven, partly on the road surface at least, and partly off it' (ts 30).
2. At the time of the collision, the appellant was '[adversely] affected by the consumption of methylamphetamine' (ts 31).
3. The collision occurred in circumstances where Mr Noormets had no opportunity to take evasive action.

32 In characterising the offences, his Honour said:

I agreed with the State that the offending of both kinds is in the category of the more serious offending of its type, and in relation to the manslaughter offence, it seems to me it is in the worst category of offending in such cases (ts 33). (emphasis added)

33 His Honour accepted that the appellant presented with risk factors relating to his substance abuse and his ability to control his emotions.

34 His Honour had express regard for the fact that he was sentencing the appellant for more than one offence. He referred to the so-called one transaction rule and both limbs of the totality principle.

35 His Honour gave a discount pursuant to s 9AA of the Sentencing Act 1995 (WA) of 3%.

36 His Honour made the order for partial concurrency that I referred to earlier.

37 I now turn to the grounds of appeal. It is convenient to deal with the grounds of appeal in reverse order.

38 By this ground, the appellant seeks to impugn his Honour's statement that count 2 was 'in the worst category of offending' (ts 33). The ground, and the arguments put by the appellant in support of it, assume that his Honour was categorising count 2 as being in the worst category of cases of manslaughter generally. The appellant submitted that such a categorisation was not open on the facts and circumstances of the present case. In essence, the appellant's argument is that his Honour overstated the seriousness of count 2.

39 In GHK v The State of Western Australia [2014] WASCA 19, this court explained the potential consequences for the sentencing of an offender by characterising an offence as being in the worst category of cases. If an offence truly falls within the worst category, the Sentencing Legislation (Transitional Provisions) Amendment Act 2008 (WA) permits (but does not require) a sentencing judge to impose a sentence at or close to the maximum penalty without adjustment. This is to ensure comparability with previous minimum custodial terms: see also The State of Western Australia v BLM [2009] WASCA 88; (2009) 40 WAR 414 [42] (Wheeler & Pullin JJA, with whom Owen JA agreed); GHK [45] and [46] (Buss JA, with whom I agreed), [116] (Hall J).

40 For an offence to be properly characterised as being in the worst category of its type, it does not have to be the 'worst case of its type that can be imagined'; rather, it refers to offences which are 'the worst cases of the sort'. The latter expression marks out a range within which an offence may fall, even though the case could have been worse than it was: Bensegger v The Queen [1979] WAR 65, 68 (Burt CJ). Both the nature of the offence and the circumstances of the offender are to be considered when deciding whether an offence is of the worst type: R v Tait (1979) 46 FLR 386, 398 (Brennan, Deane & Gallopp JJ) and GHK [42]. Cases falling within the worst category are, for sentencing purposes, rare: Veen v The Queen [No 2] [1988] HCA 14; (1988) 164 CLR 465, 478 (Mason CJ, Brennan, Dawson & Toohey JJ); GHK [41].

41 It follows from these principles that, if his Honour's categorisation was, in truth, a finding that count 2 was in the worst category of manslaughter cases generally, and that finding was open in the circumstances, then the appellant's attack on the length of the sentence for that offence will be more difficult to sustain.

42 However, his Honour's characterisation, when read in context, was not a finding that count 2 was in the worst category of manslaughter cases generally.

43 It is clear from what his Honour said that he was agreeing with the prosecutor's submission as to the seriousness of both counts 1 and 2. It will be recalled that the prosecution submitted that count 2 was 'in the worst category of motor vehicle manslaughter cases' (emphasis added). The State did not submit that the case was in the worst category of manslaughter cases generally.

44 In this light, his Honour's finding, properly understood, was that, when compared with other cases of manslaughter involving the driving of a motor vehicle, the present case was a particularly egregious example. Such a conclusion was, having regard to his Honour's findings as to the circumstances of the offending, completely justified. His Honour's use of the expression, 'the worst category of offending' (ts 33) in relation to count 2 should not be understood as referring to the type of case contemplated in Bensegger v The Queen, nor should it be regarded as engaging the principles articulated in GHK and BLM.

45 His Honour did not overstate the seriousness of count 2. Although I would grant leave to appeal on this ground, it has not been made out and thus, must be dismissed.

46 In order to demonstrate that a sentence is manifestly excessive, it must be shown that, although it is not possible to discover the exact nature of the error, the end result is so unreasonable or unjust that the court must conclude that a substantial wrong has occurred: House v The King [1936] HCA 40; (1936) 55 CLR 499, 505.

47 In determining whether implied error has been established, regard is to be had to the maximum sentence for the offence, the standards of sentencing customarily observed, the place which the criminal conduct occupies in the scale of seriousness and the personal circumstances of the offender.

48 The appellant's submissions in support of ground 1 focused on two propositions: first, the appellant did not deliberately drive on the opposite side of the road and into Mr Noormets' path; second, the sentence was inconsistent with other cases of manslaughter involving the use of a motor vehicle.

49 On 17 March 2012, the maximum penalty for manslaughter increased from 20 years' imprisonment to life imprisonment. The effect of the increase was discussed by Buss JA in The State of Western Australia v Auckram [2013] WASCA 256; (2013) 229 A Crim R 397:

Since the commencement of the Manslaughter Legislation Amendment Act 2011 (WA) on 17 March 2012, the maximum penalty for manslaughter has been life imprisonment. Previously, the maximum penalty was 20 years' imprisonment. The maximum penalty in the present case is life imprisonment.

The maximum penalty fixed by Parliament for an offence demonstrates Parliament's view of its gravity. This view must be taken into account in determining, in a particular case, the appropriate sentence.

If Parliament, by a legislative amendment, increases the maximum penalty for an offence, Parliament's new view of the gravity of the offence must be taken into account in deciding upon sentencing outcomes. See R v Lawrence (1980) 32 ALR 72, 110 (Moffitt P); Heferen v The Queen [1999] WASCA 81; (1999) 106 A Crim R 89 [35] (Anderson J, Pidgeon & Steytler JJ agreeing); Fisher v The Queen [1999] WASCA 122 [14] (Malcolm CJ, Ipp & Owen JJ agreeing); Herbert v The Queen [2003] WASCA 61; (2003) 27 WAR 330 [7] (Malcolm CJ); Nguyen v The State of Western Australia [2007] WASCA 114 [13] (Steytler P, McLure JA & Miller AJA agreeing).

An increase in the maximum penalty is an indication that sentences for the offence in question 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) [120] - [123].

50 There is no tariff for manslaughter because of the great variation of circumstances in which the crime can be committed, including significant differences in the degree of culpability of an offender and in their personal circumstances. However, it is clear that even before the change in maximum penalty, there had been an increase in sentences for manslaughter.

51 The standards of sentencing customarily imposed for manslaughter under the 20 year maximum penalty have been examined in a number of recent cases. In The State of Western Australia v Munda [2012] WASCA 164; (2012) 43 WAR 137, McLure P observed that sentences of immediate imprisonment imposed for manslaughter, after a plea of guilty, ranged between 2 years 4 months and 12 years [62] (see also McNamara v The State of Western Australia [2013] WASCA 63 [116]). In Penny v The State of Western Australia [2006] WASCA 173; (2006) 33 WAR 48 [80] - [87] and Brown v The State of Western Australia [2011] WASCA 111; (2011) 207 A Crim R 533 [102] - [106], sentences in cases of manslaughter involving the use of a motor vehicle were reviewed. It is unnecessary to reproduce what was written in each of those cases.

52 It is enough to say that the sentence imposed upon the appellant in this case is higher by some way, as the appellant submits, when compared to the cases reviewed in Penny and Brown.

53 However, it must be borne in mind that both Penny and Brown, and for that matter, Munda, were all decided before the increase in the maximum penalty for manslaughter. Those cases, and the authorities reviewed in them, must be viewed in that light. In any event, the range of cases customarily imposed is but one factor to be considered when deciding whether a sentence is manifestly excessive. Moreover, while sentences imposed in other appellate cases are used as a yardstick to ensure broad consistency, the range of sentences that have been imposed in the past do not fix the boundaries within which future judges must, or even ought to, sentence: see Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520 [53], [54]. As has been said on countless other occasions, each case must be determined on its own facts and circumstances.

54 Without question, this was a very serious case of manslaughter. The appellant's conduct displayed a high level of criminality. This is amply illustrated by the combined force of the following factors:

1. The appellant chose to drive while intoxicated by methylamphetamine to the point where he was incapable of driving safely and posed a real danger to the welfare of other road users.
2. He drove angrily and violently, on busy public roads, over some distance and in traffic.
3. The collision was the culmination of his relentless pursuit of Mr Wormall. He was, in a very real sense, using his vehicle as a weapon.
4. The fatal collision occurred because of the appellant's intentional and reckless conduct in passing and attempting to pass other vehicles on the gravel verge of the left-hand side of the lane in which he was travelling, at speed. This manoeuvre was fraught with obvious danger, which the appellant either ignored or, by reason of his methylamphetamine intoxication, was incapable of appreciating. It is unsurprising that he lost control of his vehicle in the way that he did and collided with another driver with catastrophic consequences. The fact that the appellant did not aim his vehicle onto the wrong side of the road, as opposed to endeavouring to strike Mr Wormall for a fourth time is, in the circumstances, a distinction which makes either no, or very little, difference.
5. The collision occurred, from Mr Noormets' perspective, without warning and in circumstances where he had no opportunity to take any evasive action.

55 The mitigating factors identified by his Honour were of little significance. The appellant's plea of guilty came during the trial, and appropriately attracted only a small discount pursuant to s 9AA of the Sentencing Act. The appellant's victim empathy was limited. Although his Honour referred to the appellant's rehabilitation, in what I take to be a positive sense, it is difficult to see, from the materials before the primary court, any evidence of rehabilitation. The appellant does not accept that he has a substance abuse problem, despite the close relationship between his use of methylamphetamine and his offending. He does not have any insight into the psychological factors which appear to have contributed to the offending. While his substance abuse and ability to control his emotions are left unaddressed, his risk of further offending is heightened.

56 The appellant's other subjective circumstances were equally unfavourable. There is no mitigation to be found in his criminal history. It shows an attitude of disobedience towards the law. The stressors that he was under at the time of the offence were, as his Honour pointed out, not mitigatory.

57 Appropriate punishment, deterrence (both personal and general) and public protection are significant sentencing considerations. Methylamphetamine is a very harmful drug that not only impairs driving ability, but can also produce over-confidence, anger and aggression. The effects of methylamphetamine make those who drive under its influence a potent source of danger on the road. Anyone who drives intoxicated by methylamphetamine and in that state commits the offence of manslaughter, must expect to receive a significant custodial penalty.

58 Of course, it cannot be forgotten that the appellant took Mr Noormets' life and has left his loved ones with the ongoing trauma of having to cope without him.

59 There is no doubt that the sentence imposed upon the appellant for count 2 was high. However, having regard to all the circumstances of the case, I have not been persuaded that the sentence was unreasonable or unjust. I am unable to infer error on the part of the primary judge. In these circumstances, this court cannot interfere. Ground 1 has not been made out and must be dismissed.

60 Even if ground 1 had been made out, it does not follow that the total effective sentence imposed upon the appellant would have been reduced. Section 41(2) and s 41(3) of the Criminal Appeals Act 2004 (WA) provide:

(2) If under this Act an appeal court varies or sets aside a sentence (sentence A), it may vary any other sentence -

(a) that was imposed at or after the time when sentence A was imposed; and

(b) that took into account sentence A.

(3) If under this Act an appeal court decides to vary a sentence, it may do one or more of the following -

(a) vary the sentence as imposed;

(b) impose a different sentence involving a different sentencing option;

(c) order that the sentence is to be taken to have taken effect on a date before the date of the order;

(d) order that the sentence is to take effect on a date on or after the date of the order.

61 Count 1 carries a maximum penalty of 20 years' imprisonment. On any account, the sentence imposed on that count was lenient, particularly having regard to the persistency of the appellant's attempts to harm Mr Wormall, the use of his motor vehicle as a weapon, and the terror the appellant inflicted upon Mr Noormets. The leniency of the sentence was highlighted by the order for partial concurrency.

62 In my opinion, the total effective sentence imposed by his Honour of 13 years was a proper reflection of the appellant's overall criminality on both counts, when viewed in its entirety, and after having regard to all the circumstances of the case, including those referable to the appellant personally.

63 The preconditions in s 41(2)(a) and s 41(2)(b) are present. This court's power to vary the sentence on count 1 would have been enlivened, had the sentence on count 2 been varied. Had it been necessary to vary the sentence on count 2 by reducing it, I would have varied the sentence on count 1 with the effect that the appellant would have remained subject to a total effective sentence of 13 years' imprisonment.

64 The grounds of appeal have not been made out. The appeal must be dismissed. I would make the following orders:

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