Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law - Appeal against sentence - Appellant convicted of aggravated dangerous driving occasioning death - Appellant also convicted of other offences arising from the same incident including dangerous driving occasioning bodily harm (two counts), failing to report an incident occasioning death or grievous bodily harm and failing to render assistance to a victim where an incident occasioned bodily harm but not death or grievous bodily harm - Pleas of guilty - Sentence of 10 years' imprisonment on the count of aggravated dangerous driving occasioning death - Total effective sentence of 10 years' imprisonment - Sentencing judge erred by finding that the offence of aggravated dangerous driving occasioning death was in the 'worst category' of cases

Criminal Appeals Act 2004 (WA), s 31

Road Traffic Act 1974 (WA), s 54, s 56, s 59, s 59A

Beard v The State of Western Australia [2015] WASCA 74

Beasley v The State of Western Australia [2012] WASCA 80

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

Devine v The State of Western Australia [2010] WASCA 94; (2010) 55 MVR 486

Gray v The State of Western Australia [2015] WASCA 108; (2015) 71 MVR 31

Kirby v The State of Western Australia [2016] WASCA 199; (2016) 78 MVR 380

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

Peterson v The State of Western Australia [2016] WASCA 66; (2016) 50 WAR 45

R v Kilic [2016] HCA 48; (2016) 91 ALJR 131

Rubin v The State of Western Australia [2016] WASCA 2; (2016) 75 MVR 274

The State of Western Australia v Butler [2009] WASCA 110

The State of Western Australia v Formica [2016] WASCA 104; (2016) 76 MVR 220

Timbrell v The State of Western Australia [No 2] [2013] WASCA 269; (2013) 240 A Crim R 1

3 MAZZA JA: This is an appeal against sentence. On 19 May 2016, the appellant pleaded guilty on the fast-track system to an offence of dangerous driving occasioning death committed in circumstances of aggravation, contrary to s 59(1)(b) of the Road Traffic Act 1974 (WA) (RTA). The circumstance of aggravation was that the appellant drove at a speed in excess of 45 km per hour over the speed limit.

4 The appellant also pleaded guilty to a further six offences which were before the court on a notice issued under s 32 of the Sentencing Act 1995 (WA). The details of the individual sentences that were imposed are as follows.

Section 32 notice

Dangerous driving occasioning bodily harm (s 59A(1)(b) RTA)

Dangerous driving occasioning bodily harm (s 59A(1)(b) RTA)

Being a driver who failed to report an incident occasioning death or GBH (s 56(2) RTA)

Failing to render assistance to a victim where an incident occasioned bodily harm but not death or GBH (s 54(2), s 54(3)(c) RTA)

No MDL (suspension) (s 49(1)(a), s 49(3)(c) RTA)

Breach of violence restraining order (s 61(1) Restraining Orders Act 1997 (WA))

5 The sentencing judge, McCann DCJ, ordered that the sentences of imprisonment he imposed for the offences on the s 32 notice be served concurrently with the sentence for the offence of aggravated dangerous driving occasioning death. Thus the total effective sentence imposed was 10 years' imprisonment with eligibility for parole. The sentence was backdated to 30 September 2015. In addition to the sentences of imprisonment, his Honour imposed a motor driver's licence disqualification of 5 years and 9 months. This appeal challenges the sentence imposed on the aggravated dangerous driving occasioning death offence. The sentences for the s 32 notice offences and the motor driver's licence disqualification are not challenged.

6 The appellant relies on two grounds of appeal, both of which are the subject of a grant of leave to appeal. Ground 1 alleges that the sentencing judge erred by finding that the offence of aggravated dangerous driving occasioning death was in the category of the worst case of its kind. Ground 2 alleges that the sentence of 10 years' imprisonment for the offence was manifestly excessive.

7 There is no dispute as to the facts of the appellant's offending, which may be summarised as follows.

8 At all relevant times, the appellant was driving a black Ford Falcon on the evening of 17 September 2015. With him in the vehicle was Maskill Pease, Paul Albie Henderson and Connor Van Diemen. The appellant owed Mr Pease $150 for some work he had done to the appellant's vehicle. Mr Pease, Mr Van Diemen and Mr Henderson were travelling to the appellant's house so that the appellant could pay Mr Pease the money he owed him.

9 For approximately 30 minutes before the fatal crash, the appellant drove 'in a grossly dangerous fashion'.[1] The appellant drove along Mandurah Road at a speed of up to 220 km per hour. At that speed, the vehicle's motor automatically cut out. As well as the high speed, the appellant drove through four red lights. At one intersection, he nearly collided with another motorist.[2] At one point, he stopped the vehicle at a service station in Lakelands, where he drove over Mr Henderson's foot.[3] After leaving the service station, the appellant in breach of a violence restraining order issued on 7 July 2015 to protect his former partner, drove to her house in Coodanup, where he did a burnout.[4]

10 After he left his former partner's house, the appellant continued to drive dangerously. It was not disputed that Mr Pease and Mr Van Diemen pleaded with the appellant to stop the vehicle and let them out. These pleas were ignored.[5]

11 At approximately 8.00 pm on 17 September 2015, the appellant and his passengers were travelling in a northerly direction on Leslie Street in Dudley Park. Leslie Street, at the location of the crash, is a two-lane carriageway, with one lane travelling in a predominantly northerly direction and the other lane in a southerly direction. The roadway is bitumenised and was well lit and in good condition. The weather was dry. The area in which the appellant was driving is residential and subject to a speed limit of 50 km per hour. Mr Henderson was in the front passenger seat, Mr Pease was seated behind him and Mr Van Diemen was seated behind the driver.

12 The appellant turned from Mandurah Road onto Leslie Street and accelerated heavily to a speed of 145 km per hour. As the vehicle continued north, another vehicle travelling in the opposite direction had to swerve to avoid a collision. The appellant continued at speed and collided with a raised median island on Leslie Street. The combination of high speed and the impact with the median island caused the appellant to lose control of his vehicle. The vehicle rotated and struck the vegetation on the median island. The rear passenger side of the vehicle then struck a large pole. The impact caused fatal injuries to Mr Pease. Mr Henderson suffered a deep cut to the scalp, and grazing and bruising to various parts of his body. Mr Van Diemen suffered a cut to his top lip and scratches to both arms.[6]

13 Immediately following the crash, the appellant got out of the car. The appellant was heard by Mr Van Diemen to shout out, '[r]un'.[7] Mr Van Diemen told the appellant that Mr Pease was critically injured. The appellant said, 'I don't give a fuck'.[8]

14 The appellant fled from the scene before the arrival of emergency services and without rendering any assistance to his passengers. A number of bystanders saw the appellant run in a southerly direction down Leslie Street away from the crash. When questioned about what he was doing, the appellant repeatedly said that he was not the driver of the vehicle and was not involved.[9] He failed to report the crash.

15 At about 10.30 pm, the appellant was located and arrested by police at an address in Dudley Park. He was taken to the Peel Health Campus for medical assessment of his injuries. A blood sample was taken at the hospital which later revealed that the appellant had a blood alcohol level calculated at the time of driving to be 0.048% and less than 0.01 mg per litre of blood of both methylamphetamine and amphetamine.[10] It was not alleged that these levels of methylamphetamine and amphetamine affected the manner of driving.

16 At the Peel Health Campus the appellant was questioned by police about his involvement in the crash. He attempted to implicate one of the victims.[11] The appellant was released by police, but failed to keep an appointment to meet them the following day. On 30 September 2015, the appellant was located and arrested.

17 At the time of the crash the appellant was not authorised to drive, having been disqualified in the Mandurah Magistrates Court on 7 April 2015 from holding or obtaining a driver's licence for a period of 8 months.

18 The appellant was 37 years of age at the time he was sentenced. His marriage ended in divorce. He has three children. The appellant was educated to year 10 and is a sandblaster by trade. He has a history of prior offending, including for offences of breaching a violence restraining order (three offences), criminal damage (three offences), possession of cannabis (two offences), threats to injure (three offences) and several driving offences including driving with a blood alcohol reading in excess of 0.08% and driving under suspension.

19 The sentencing judge received victim impact statements from the deceased's mother, father and sister. Mr Pease's death has had a terrible effect upon them.

20 His Honour found that the appellant's dangerous driving was wilful and did not involve an error of judgment or other momentary driving error.[12] He said that the risk of a catastrophic outcome was sustained and obvious. He found that while the outcome was not inevitable, 'the risk of a catastrophic outcome became grossly unacceptable by the time the collision occurred'.[13]

21 His Honour noted that at the time of the offending the appellant's driver's licence was under suspension. He noted that the appellant had been drinking alcohol before driving and that at the time of the crash 'this was in your system'. He found that methylamphetamine was not a factor in the manner of driving.[14] His Honour characterised the appellant's behaviour in abandoning the victim shortly after the crash as 'callous and deliberate'. He said that he accepted the State's description of the appellant's attitude after the offending as 'cowardly'. His Honour said that there were no extenuating circumstances which caused the appellant to drive in the manner he did and that he had offered no excuses.

22 The sentencing judge said that although he was satisfied that the appellant was 'now showing some insight and remorse' as to his offending, this carried 'very little weight having regard to [the appellant's] behaviour when it most counted which was immediately after the collision'.[15]

23 His Honour found that the appellant could not 'lay claim to having a good prior character'.[16] For the pleas of guilty, his Honour gave a discount pursuant to s 9AA of the Sentencing Act of 20%. He referred to the victim impact statements, observing that it was 'highly unlikely that [the deceased's mother, father and sister] will ever properly recover'.[17] His Honour observed that shortly before the fatal collision, the passengers pleaded with the appellant for their safety which he disregarded. The sentencing judge described this disregard as 'callous'.[18]

24 His Honour referred to the case of Beard v The State of Western Australia[19] and, in particular, [40], where it was said:

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 [v The State of Western Australia [2014] WASCA 19; (2014) 238 A Crim R 178] [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].

25 The sentencing judge went on to find that the circumstances of the indictable offence committed by the appellant fell within this 'rare and terrible category'.[20] That is, he found that the offence was in the 'worst category'.

26 He said that the effect of this finding was that, although cases not in the worst category would inform the sentence to be imposed, 'broad consistency or parity with other cases is not as important as would otherwise be the case'.[21] His Honour then imposed the sentence of 10 years' imprisonment.[22]

27 His Honour then turned to the offences in the s 32 notice. In respect of the dangerous driving occasioning bodily harm offences, he described the dangerous driving as being 'severe', but noted that the victim suffered 'relatively minor injuries'.[23] He imposed sentences of 6 months' imprisonment for each offence, but ordered that they be served concurrently 'for totality purposes'.[24] With respect to the offences of failing to assist the victims and failing to report, his Honour referred to this court's decision in Peterson v The State of Western Australia.[25] His Honour observed that the facts of the present case were 'very close to Peterson's case'.[26] He found that although the appellant panicked, he was at all material times motivated by a desire to thwart the police inquiry. In arriving at this finding he took into account that the appellant 'positively urged your passengers ... to leave with you and [you] said you didn't give a fuck about the injuries of [the deceased]'.[27] In respect of the offences of failing to assist and failing to report, his Honour imposed sentences of 1 year's imprisonment each.

28 His Honour gave reasons for ordering all the sentences of imprisonment to be served concurrently. His Honour said:

I've made it clear that all the sentences of imprisonment are to be concurrent, so the head sentence is 10 years' imprisonment and I now give my reasons for that.

I'm satisfied that there was one lengthy course of criminal behaviour for at least 30 minutes before the index offences were committed. This was extremely serious offending. There were several victims involved in the index offences and several legal interests infringed, including the good order and governance of Western Australia insofar as there were breaches of reporting requirements and orders and this kind of thing.

Whilst the second and third victims were not seriously injured and have fully recovered physically, they were placed in severe danger at the time and there is some case for accumulation in their case. However, I have to avoid a crushing sentence.

It seems to me that looking at all these matters and disclosing as I have that to some extent the sentence for each offence has been informed by the offending on the others, in other words a form of cross-admissibility, I think there is a case for concurrency.

As to the case being in a worst case of its kind and as to why the head sentence is 10 years' imprisonment - I'll put that slightly differently. Why the sentence for the dangerous driving occasioning death is 10 years, I have specifically taken into account the fact that Mr Billings ignored the pleas of the two young men to be let out of the car.

As I've said, enough was enough. This young man was simply senselessly killed at such an early stage in his life. And of course the driving itself was at an extremely dangerous level.

I've looked at the other cases. Six to eight years' imprisonment is common in cases of this kind where there are a number of collateral offences. This offence is worse than them because of the wilfulness, the callousness and the objective dangerousness of all the behaviour and the lack of pity shown to the victims, including the deceased whilst he was alive and after he died. So that's why the sentence on count 1 was 10 years and why I think 10 years is appropriate overall.[28]

29 The general legal principles applicable to appeals against sentence are well known and uncontroversial. An appellate court can intervene only if the appellant demonstrates either an express or implied material error. Express error (of which ground 1 is an alleged example) usually involves mistaking the law or facts or taking into account an irrelevant factor. Implied error (of which ground 2 is an alleged example) arises where the end result is so unreasonable or unjust that the court must conclude that a substantial wrong has occurred. Thus, an appellate court cannot substitute its own opinion for that of the sentencing court merely because the appellate court would have exercised the sentencing discretion differently.

30 Ground 1 was focused upon the sentence imposed for the offence of aggravated dangerous driving occasioning death. The appellant conceded that the offence was at the serious end of the scale of offences of this type, but submitted that it could not properly be characterised as falling in the 'worst category' of cases.

31 After the appellant was sentenced, the High Court delivered judgment in the case of R v Kilic.[29] In that case, Bell, Gageler, Keane, Nettle and Gordon JJ discussed what is meant by an offence falling within the 'worst category'. Their Honours said [18]:

What is meant by an offence falling within the 'worst category' of the offence is that it is an instance of the offence which is so grave that it warrants the imposition of the maximum prescribed penalty for that offence. Both the nature of the crime and the circumstances of the criminal are considered in determining whether the case is of the worst type. Once it is recognised that an offence falls within the 'worst category', it is beside the point that it may be possible to conceive of an even worse instance of the offence. Thus, an offence may be assessed as so grave as to warrant the maximum prescribed penalty notwithstanding that it is possible to imagine an even worse instance of the offence.

32 Their Honours then went on to describe the approach a sentencing judge must take where an offence, although a grave instance of the offence, is not so grave as to warrant the imposition of the maximum prescribed penalty. Their Honours said:

Where, however, an offence, although a grave instance of the offence, is not so grave as to warrant the imposition of the maximum prescribed penalty - as the offending was agreed to be here - a sentencing judge is bound to consider where the facts of the particular offence and offender lie on the 'spectrum' that extends from the least serious instances of the offence to the worst category, properly so called. It is potentially confusing, therefore, and likely to lead to error to describe an offence which does not warrant the maximum prescribed penalty as being 'within the worst category'. It is a practice which should be avoided.[30]

33 In this court, counsel for the respondent conceded that, in light of what was said by the High Court in Kilic, the offence of dangerous driving occasioning death committed by the appellant in this case could not be said to be so grave as to warrant the imposition of the maximum prescribed penalty for the offence (20 years' imprisonment), having regard to the nature of the offence and the circumstances of the appellant.

34 In my opinion, this concession should be accepted. His Honour made no statement to the effect that the indictable offence warranted the imposition of the maximum prescribed penalty for the offence. Plainly, the sentence actually imposed, having regard to the only mitigating factor of substance, namely the plea of guilty, was a long way short of the maximum penalty. In truth, while the overall circumstances of the offence and the offender warranted a lengthy sentence of immediate imprisonment, it did not warrant the maximum prescribed penalty.

35 In my opinion, ground 1 has been made out. The error was material because it led to his Honour misapprehending the gravity of the offence and regarding himself as less constrained by the range of sentences customarily imposed for the offence. In my opinion, this court's power to intervene and resentence the appellant has been enlivened and a different sentence should now be imposed for the indictable offence. In these circumstances, it is unnecessary to decide ground 2.

36 Section 31(4)(a) of the Criminal Appeals Act 2004 (WA) provides that this court may allow an appeal against sentence if, in its opinion, a different sentence should have been imposed by the primary judge. Section 31(3) states that unless, under s 31(4), this court allows the appeal, it must dismiss the appeal.

37 As I have said, his Honour erred in his assessment of the gravity of the offence of dangerous driving occasioning death. A different and lower sentence should have been imposed with respect to the indictable offence. This conclusion also enlivens the court's jurisdiction to set aside the total effective sentence. The total effective sentence should be set aside if this court is of the opinion that a different total effective sentence should have been imposed.[31]

38 With respect to the indictable offence, I have already set out the maximum penalty for the offence, the circumstances in which it was committed and the appellant's antecedents.

39 The facts of the offence speak for themselves. Although the offence of aggravated dangerous driving occasioning death was not in the worst category of cases, it was nevertheless a bad offence of its kind.

40 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.[32]

41 There are relatively few sentencing cases decided by this court with respect to aggravated dangerous driving occasioning death since the maximum penalty was increased in 2008. Sentencing patterns with respect to the offence are yet to emerge. In Devine v The State of Western Australia,[33] Buss JA analysed the standards of sentencing customarily imposed for the offence in part by reference to motor vehicle manslaughter cases at a time when the maximum penalty for manslaughter was 20 years' imprisonment. I have had regard to that analysis. It is unnecessary to reproduce what his Honour wrote. I have also had regard to a number of cases decided since Devine, including The State of Western Australia v Formica[34]; Kirby v The State of Western Australia[35] Rubin v The State of Western Australia;[36] Gray v The State of Western Australia;[37] Timbrell v The State of Western Australia [No 2][38] and Lutumba v The State of Western Australia.[39] The present offence is considerably more serious than the offences the subject of these cases.

42 I have also considered the manslaughter case of Brown v The State of Western Australia.[40] At the time this case was decided, the maximum penalty for manslaughter was 20 years' imprisonment. In that case, the appellant was convicted after trial. The appellant, who was heavily intoxicated with methylamphetamine, drove a four-wheel drive vehicle in such a way that she ran down the victim's motorcycle from behind. The appellant's antecedents provided little mitigation. A sentence of 8 years 6 months' immediate imprisonment was held by this court not to be manifestly excessive.

43 Finally, I have taken into account Beard v The State of Western Australia.[41] In that case, the appellant pleaded guilty to manslaughter on the second day of his trial. By then, the maximum penalty for that offence had increased to life imprisonment. Beard was a very bad case, worse than the present case. A sentence of 12 years and 6 months' imprisonment was not disturbed on appeal.

44 The only significant matter in mitigation in the present case was the appellant's plea of guilty, which was entered at the first reasonable opportunity. Having regard to the strength of the case against the appellant I would give a discount of 20%, pursuant to s 9AA of the Sentencing Act.

45 Taking into account all of the relevant facts and circumstances and all relevant sentencing considerations, including the need for personal and general deterrence, in my opinion, the appellant should be resentenced on the count of aggravated dangerous driving occasioning death to 8 years' imprisonment.

46 That leaves for consideration the total effective sentence of 10 years' imprisonment. The fact that his Honour erred in the imposition of the individual sentence for the offence of aggravated dangerous driving occasioning death does not necessarily lead to the conclusion that the total effective sentence was erroneous.

47 It is clear that his Honour took the view that the overall criminality involved in the offences warranted a total term of 10 years' imprisonment. His Honour appears to have considered that all of the appellant's offending behaviour was, in effect, bound up in the offence of aggravated dangerous driving occasioning death. Accordingly, he imposed concurrent sentences in respect of the s 32 notice offences. I would take a different approach.

48 The sentence I would impose on the aggravated dangerous driving occasioning death does not take into account the circumstances of the s 32 notice offences. In my opinion, these offences called for some cumulacy in order to reflect the injuries caused to Mr Henderson and Mr Van Diemen and the appellant's callous post-offence conduct, particularly in failing to report the accident or to render assistance to the survivors.

49 In my opinion, the total effective sentence imposed by his Honour of 10 years' imprisonment was appropriate, having regard to the overall criminality involved in all of the offences viewed in their entirety and having regard to all of the relevant facts and circumstances and all relevant sentencing considerations, including the facts and circumstances referable to the appellant personally. I would not interfere with the individual sentences of imprisonment imposed by his Honour for the offences in the s 32 notice. However, I would order that the sentences on MH 5050, 5051 and 5053 of 2015 be served cumulatively upon each other and cumulatively upon the new sentence imposed for the indictable offence. The individual sentence on MH 5052 of 2015 is to be served concurrently with the new sentence imposed for the indictable offence. Thus, despite the material error with respect to the aggravated dangerous driving occasioning death, I would not impose a total effective sentence different from that imposed by his Honour.

1. The appeal is allowed in part.
2. The sentence imposed on the count of aggravated dangerous driving occasioning death is set aside and substituted with a sentence of 8 years' imprisonment.
3. The sentences with respect to MH 5050 of 2015, 5051 of 2015 and 5053 of 2015 are varied, but only to the extent that they are to be served cumulatively upon each other and cumulatively upon the new sentence imposed for the offence of aggravated dangerous driving occasioning death.
4. The sentence with respect to MH 5052 of 2015 is varied, but only to the extent that it is to be served concurrently with the new sentence imposed for the offence of aggravated dangerous driving occasioning death.
5. The sentences with respect to MH 5054 of 2015 and MH 5055 of 2015, and the motor driver's licence disqualification, stand.
6. The total effective sentence imposed upon the appellant remains 10 years' imprisonment with eligibility for parole backdated to 30 September 2015.

[7] Statement of Connor James Van Diemen, par 93.

[8] Statement of Connor James Van Diemen, par 97, ts 34.

[19] Beard v The State of Western Australia [2015] WASCA 74.

[25] Peterson v The State of Western Australia [2016] WASCA 66; (2016) 50 WAR 45.

[29] R v Kilic [2016] HCA 48; (2016) 91 ALJR 131.

[31] Beasley v The State of Western Australia [2012] WASCA 80 [107].

[32] The State of Western Australia v Butler [2009] WASCA 110 [7].

[33] Devine v The State of Western Australia [2010] WASCA 94; (2010) 55 MVR 486 [48] - [70].

[34] The State of Western Australia v Formica [2016] WASCA 104; (2016) 76 MVR 220.

[35] Kirby v The State of Western Australia [2016] WASCA 199; (2016) 78 MVR 380.

[36] Rubin v The State of Western Australia [2016] WASCA 2; (2016) 75 MVR 274.

[37] Gray v The State of Western Australia [2015] WASCA 108; (2015) 71 MVR 31.

[38] Timbrell v The State of Western Australia [No 2] [2013] WASCA 269; (2013) 240 A Crim R 1.

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

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

[41] Beard v The State of Western Australia [2015] WASCA 74.