Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Criminal law - Appeal against sentence - Dangerous driving occasioning death - Drunken passenger climbed onto roof of car at traffic lights - Refused to come down - Respondent drove with passenger on the roof - Passenger died after falling onto road - Whether suspended sentence of imprisonment manifestly inadequate

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

Chan v The Queen (1989) 38 A Crim R 337

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

Kershaw v The State of Western Australia [2014] WASCA 111; (2014) 66 MVR 551

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

Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600

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

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

2 BUSS JA: I agree with the orders proposed by Newnes JA. Subject to one observation, I agree with his Honour's reasons. The observation is that it is unnecessary, in view of the State's abandonment of the additional ground of appeal, for this court to express a view as to whether the sentencing judge erred in taking into account the views of the deceased's mother to the effect that the respondent should not be imprisoned immediately and that the deceased would not have wanted that outcome.

3 NEWNES JA: This is a State appeal against sentence. The respondent was convicted on his plea of guilty to one count of dangerous driving occasioning death, contrary to s 59(1)(b) of the Road Traffic Act 1974 (WA). He was sentenced by Jenkins J to 2 years 6 months' imprisonment, suspended for two years. The appellant contends that the sentence was manifestly inadequate.

4 I would dismiss the appeal for the following reasons.

5 The respondent and the deceased, Mr Della, had been friends for a number of years. On the evening of 1 August 2014, the respondent, Mr Della and the respondent's brother, Kyle Formica, drove to a local hotel. Mr Della was experiencing personal problems relating to his relationship with the mother of his young child and was already very intoxicated by the time he got to the hotel. The respondent was the designated driver and consumed two full strength beers over the course of the evening. There was no suggestion that the respondent's alcohol consumption played any part in the offence.

6 Mr Della behaved in a difficult manner throughout the evening. While at the hotel, he became rude and aggressive towards some other patrons and this escalated into a physical altercation. The respondent and the respondent's brother decided to remove Mr Della from the hotel. By this stage, a female friend had joined the group. The respondent drove his brother, Mr Della and the friend to the respondent's home in Morley.

7 Sometime later, the respondent drove the group to a bottle-shop in Inglewood to buy more alcohol. There they purchased a carton of beer. While they were doing so, Mr Della became involved in an argument with a security officer.

8 On the return journey to the respondent's house, the respondent was driving and Mr Della was in the front passenger seat of the car. While the car was stopped at traffic lights at the intersection of Morley Drive, Camboon Road and Wellington Road in Morley, Mr Della got out of the car and started skylarking with the traffic. He was in a very intoxicated state. The respondent drove the car close to Mr Della and told him to get in, but Mr Della kicked the passenger door shut and got on the roof of the car. As the traffic lights had turned green, the respondent drove through the intersection and stopped. The respondent swore at Mr Della, and the respondent and his brother told Mr Della to get off the roof and get back in the car. Mr Della refused to do so. Neither the respondent nor his brother got out of the car.

9 Faced with Mr Della's refusal, the respondent decided to drive home with Mr Della on the roof. He drove at speeds between 40 km/h and 50 km/h on straight stretches of road. Witnesses saw Mr Della lying on the roof with his head towards the front of the car, and at one point he lifted the top half of his body up off the roof. During the journey, 'yahooing' was heard from the car. The sentencing judge found that Mr Della was one of the people 'yahooing', but was not satisfied beyond reasonable doubt that the respondent joined in.

10 The respondent took a longer route home than was necessary, initially because he was considering taking Mr Della to his (Mr Della's) girlfriend's house. The respondent then decided against that, but unnecessarily went around the block closest to his house to prolong Mr Della's evident enjoyment of being on the roof. The total distance travelled with Mr Della on the roof was approximately 2 km.

11 Shortly before the respondent reached his home, Mr Della fell off the roof onto the road. The exact speed of the car at the time is unknown, but it was found to be no more than 40 km/h. The respondent and the other occupants of the car did not notice that Mr Della was not on the roof until the respondent reached his house and they got out of the car. The respondent and his passengers then retraced their path and found Mr Della lying on the road. Mr Della died in hospital of a head injury he received in the fall.

12 The respondent was charged with one count of dangerous driving occasioning death, to which he pleaded guilty.

13 The sentencing judge noted that at the time of the offending the respondent was 22 years old. He had always resided with his parents. He had a good upbringing and his family were very supportive of him. The respondent was an average student and had no behavioural problems whilst at school. After leaving school in year 11, the respondent worked at a number of jobs and was working at the time of the offence. After the accident, however, he had struggled to cope with Mr Della's death and had left his employment. At the time of sentencing, the respondent had obtained work with a paving company.

14 The respondent did not have any mental health issues prior to the commission of the offence, but since the offence had suffered from depression, anxiety and symptoms of post-traumatic stress disorder. The respondent had seen a psychologist to assist him with these problems.

15 The respondent had a conviction in 2010 of driving with a blood alcohol content in excess of 0.08%. In 2012, he was granted a spent conviction for three minor drug offences.

16 The sentencing judge noted that the authors of the pre-sentence report and the psychological report said that the respondent had accepted full responsibility for the offending, expressed remorse and victim empathy. In relation to future offending, the author of the psychological report considered there were few concerning factors and many protective factors in the respondent's history.

17 The sentencing judge described the respondent's offending as very serious, noting that this was not a case of momentary inattention. Although the respondent knew the deceased was drunk and behaving irrationally, he drove the car with the deceased on the roof at not inconsiderable speeds for 2 km. The risk to Mr Della's safety, given his condition, would have been obvious. Her Honour also noted that there were other options available to the respondent, including refusing to drive until Mr Della got into the car or calling someone such as the respondent's father and asking for help.

18 Her Honour observed, however, that the respondent did not show a selfish disregard for the safety of Mr Della. The sentencing judge accepted that the respondent, in a misguided way, thought he was being a good friend to Mr Della by prolonging the trip. Her Honour accepted the view of the author of the psychological report that a number of matters contributed to the offending, including immaturity, poor judgment, the respondent's desire to appease his friend, risk-taking behaviour, and a lack of consequential thinking.

19 Her Honour took into account by way of mitigation, in addition to matters personal to the respondent:

• the respondent's plea of guilty;
• the respondent's genuine and deep remorse, independently of the plea of guilty and the matters referred to in s 9AA(2) of the Sentencing Act 1995 (WA);
• having regard to his remorse, that there was little or no risk of the respondent reoffending in this way;
• the respondent's youth;
• the respondent's lack of prior relevant offences, other than the offence of driving with a blood alcohol level exceeding 0.08%; and
• the fact that the deceased had put himself in danger and the respondent did not want the deceased to be on the roof of the car, albeit the distance the respondent drove, the manner of driving and the other options available to him meant there was limited mitigation in that.

20 The sentencing judge concluded that only a term of imprisonment was appropriate but reduced the sentence she would otherwise have imposed by 15% for the respondent's plea of guilty. Her Honour decided, 'by the barest of margins', that the term of imprisonment should be suspended [1], [51]. She did so having regard to the respondent's youth; his plea of guilty; his very good prospects of rehabilitation; his remorse and the efforts he was making to express that remorse through his actions, including maintaining relationships with Mr Della's mother and daughter; and the absence of the need for a specifically deterrent sentence. Her Honour also took into account the reduced need for retribution in light of the attitude of Mr Della's mother who had said that Mr Della would not have wanted the respondent to receive an immediate term of imprisonment and the indication that Mr Della's mother did not want that either [49].

21 The respondent was sentenced to 2 years and 6 months' imprisonment, suspended for 2 years. He was disqualified from holding or obtaining a driver's licence for 2 years and 6 months.

22 The sole ground of appeal was, in substance, that the suspension of the term of imprisonment rendered the sentence manifestly inadequate.

23 Originally the appellant relied on the following additional ground of appeal:

The sentencing judge erred in taking into account an irrelevant consideration, namely the views of the victim's mother to the effect that the respondent should not be imprisoned and that the deceased also would not have wanted that outcome.

That ground, however, was abandoned at the hearing of the appeal.

24 In determining whether a sentence is manifestly inadequate, the sentence must be viewed in the light of the maximum sentence prescribed for the offence (in this case, 10 years' imprisonment); the standards of sentencing customarily observed with respect to the offence; the place which the criminal conduct occupies on the scale of seriousness of crimes of that type; and the personal circumstances of the offender: Chan v The Queen (1989) 38 A Crim R 337, 342.

25 It is important to observe that while for consistency it is necessary to have regard to sentences customarily imposed in cases involving similar offending, the range of sentences that have been imposed in the past does not fix the boundaries within which future judges must, or even ought to, sentence: Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600 [39]. Caution must also be exercised in considering sentences imposed in other cases as inevitably there will be differences in the circumstances of the offences and the offender.

26 In support of its contention that the sentence was manifestly inadequate, the appellant relied on Rubin v The State of Western Australia [2016] WASCA 2; Timbrell v The State of Western Australia [No 2] [2013] WASCA 269; Gray v The State of Western Australia [2015] WASCA 108; (2015) 71 MVR 31; and Lutumba v The State of Western Australia [2013] WASCA 172. In none of those cases, however, were the circumstances comparable to the present case and they are of very limited use as comparators.

27 In Rubin, the appellant, who lived in the USA and was visiting Perth, had limited experience of driving on the left-hand side of the road. He was driving in a southerly direction on Albany Highway with his wife and daughter. The road he was driving along was initially a dual carriageway, but then converted to a single carriageway. The appellant failed to observe various signs and visual markers which clearly indicated that he was travelling on a single carriageway and drove south in the northbound carriageway, colliding with a car travelling in the opposite direction. The appellant's wife was killed and his daughter suffered serious injuries. A two-year-old child in the other car was killed, two other passengers in that car suffered serious injuries and one suffered bodily harm. The appellant pleaded guilty to two charges of dangerous driving occasioning death, three charges of dangerous driving occasioning grievous bodily harm and one charge of dangerous driving occasioning bodily harm. He was sentenced to a total effective term of 18 months' immediate imprisonment. An appeal against sentence was dismissed.

28 In Timbrell, the 21-year-old appellant drove through a red traffic light and collided with another motor vehicle in the intersection. The driver of the other vehicle was killed and the passenger seriously injured. The sentencing judge found that the appellant had not deliberately driven through the red light, but had done so by reason of inattention. The appellant pleaded guilty to one charge of dangerous driving occasioning grievous bodily harm and one charge of dangerous driving occasioning death. He was sentenced to a total effective term of 12 months' immediate imprisonment. On appeal, the sentence was suspended for 9 months.

29 In Gray, the 25-year-old appellant was driving on a private gravel road in the north-west of the State. A road train travelling ahead of him was creating a cloud of dust. The appellant did not drop back to avoid the cloud of dust but drove into it and became disoriented. His vehicle travelled to the wrong side of the road where it collided head-on with a car, killing one of the occupants. Before obtaining a permit from the owner to use the road, the appellant had watched a training video describing dust as a 'major visibility hazard' and advising drivers caught behind a road train to be patient and stay back out of its dust. The appellant was convicted after a trial of one charge of dangerous driving occasioning death, and was sentenced to 2 years 2 months' immediate imprisonment. An appeal against sentence was dismissed.

30 In Lutumba, the appellant was a mature-age learner driver who was not properly supervised and was not displaying 'L' plates at the material time. As he approached a right hand curve, the appellant crossed double white dividing lines onto the incorrect side of the road in order to overtake a truck which had reduced its speed in accordance with a 'reduce speed' sign. The appellant's vehicle collided head on with a car travelling in the opposite direction. One of the passengers in the appellant's car received fatal injuries, one was seriously injured, and two received injuries amounting to bodily harm. The two occupants of the oncoming vehicle sustained extensive injuries. The appellant was convicted after a plea of guilty of nine charges, including one count of dangerous driving occasioning death, three counts of dangerous driving occasioning grievous bodily harm and two counts of dangerous driving occasioning bodily harm. He was sentenced to a total effective term of 6 years' imprisonment, reduced on appeal to 4½ years' imprisonment.

31 We were not referred to any cases that are more apposite and my own research has not unearthed any. In that connection, I have had regard to, among others, the various cases referred to in Kershaw v The State of Western Australia [2014] WASCA 111; (2014) 66 MVR 551. The absence of comparable cases is perhaps not surprising. The circumstances of this case were very unusual. Whilst, as the sentencing judge observed, the offending was very serious, there were a number of distinctive features of the offending that bear upon the respondent's level of culpability.

32 There is no doubt that the respondent did not want Mr Della on the roof of the car. Both the respondent and his brother tried unsuccessfully, when stopped at the traffic lights and again on the other side of the intersection, to persuade him to get into the car. Their endeavours to do so were no doubt thwarted by Mr Della's level of intoxication and the belligerent attitude he had demonstrated earlier in the evening. While neither the respondent nor his brother got out of the car to remonstrate with Mr Della, it is not evident that it would have made any difference had they done so.

33 In the face of Mr Della's intransigence, the respondent made a serious error of judgment in yielding to Mr Della's insistence on travelling on the roof. However, as the primary judge observed, the respondent did so not out of a selfish disregard for Mr Della's safety but from a misguided desire to make Mr Della happy. The manner of the respondent's driving from that point reflected an intention to take care to ensure that no harm came to Mr Della. The tragic consequence came about from a failure by the respondent to make a proper assessment of the risk to Mr Della of travelling on the roof of the car, not from a lack of concern for his wellbeing or for the safety of other road users, who were not put at risk.

34 The respondent was 22 years of age at the time. He did not have a significant record of offending and up to the time of the accident had a steady history of employment. The offending was described in the psychological report as, and accepted by the sentencing judge to be, a result of immaturity, poor judgment, the respondent's desire to appease his friend, risk-taking behaviour, and a lack of consequential thinking.

35 The depth of the respondent's remorse was not in doubt. It was the subject of comment in the psychological report and by the sentencing judge from her own observations during a trial of the issues for sentencing. It appears from the psychological report that the respondent has been so seriously affected by the accident that he has been advised to seek, and has sought, psychological counselling from a private psychologist, counselling that the author of the psychological report has recommended the respondent continue.

36 In the unusual circumstances of this case, I am not persuaded that a suspended term of imprisonment was outside the bounds of a proper exercise of the sentencing discretion. I do not consider the sentence to be manifestly inadequate.