Court of Appeal (WA)|2010-02-18|Before: Owen JA

BARRON -v- THE STATE OF WESTERN AUSTRALIA [2010] WASCA 27 (18 February 2010)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : BARRON -v- THE STATE OF WESTERN AUSTRALIA [2010] WASCA 27

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law and procedure - Sentencing - Dangerous driving occasioning death - Third offence - Sentence of 7 years and 6 months not manifestly excessive

Clinch v The Queen [1999] WASCA 57

Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321

Eves v The State of Western Australia [2008] WASCA 7

Farmer v The State of Western Australia [2007] WASCA 219

Longbottom v The State of Western Australia [2008] WASCA 203

McKenna v The Queen (1992) 7 WAR 455

Penny v The State of Western Australia [2007] WASCA 173

Punch v The Queen (1993) 9 WAR 486

R v S (No 2) (A Child) (1992) 7 WAR 434

R v Stebbings (1990) 4 WAR 538

Taylor v The State of Western Australia [2007] WASCA 218

Taylor v The State of Western Australia [2009] WASCA 226

The Queen v White [2000] WASCA 118

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

The State of Western Australia v Garlett [2007] WASCA 274

The State of Western Australia v Gibbs [2009] WASCA 7

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

White v The Queen [2003] WASCA 197

1 OWEN JA: The appellant was found guilty after a trial in the Magistrates Court of one count of dangerous driving occasioning death. The magistrate committed him to the District Court for sentence. He was sentenced by a District Court judge to immediate imprisonment for 7 years and 6 months. This is an appeal against that sentence. Leave to appeal was granted by a single judge of this Court.

2 Sawyers Road in Sawyers Valley is a sealed single carriageway running predominantly north-south. It provides for one lane of traffic to flow in each direction, separated by white lines that are painted down the centre of the road. The sealed road surface gives way to gravel margins beyond which is scrub and trees at various stages of maturity. The area is generally rural with few residential buildings. There is no street lighting in the area and the speed limit is 80km per hour.

3 On the evening of 21 December 2007 at between 10.00 pm and 10.25 pm, John Patrick Donnelly (the deceased) was walking in a northerly direction along the western gravel verge on Sawyers Road. He was hitch-hiking and walking about 200 to 300 millimetres from the road's sealed surface. At the same time, the appellant was driving a Ford utility along Sawyers Road also in a northerly direction. As he approached the area where the deceased was walking, the appellant allowed the left hand wheels of his vehicle to leave the road surface and enter the gravel verge. The vehicle continued for a distance on the gravel verge before its kangaroo bar struck the deceased on the right leg from the rear. The road prior to this impact had been straight for some 50 to 70 metres and the gravel verge was clearly visible.

4 The deceased was flung onto the windscreen of the appellant's vehicle before being thrown onto the gravel verge and into the scrub on the side of the road. As a result of that incident he sustained fatal injuries and died at the scene. The appellant then lost control of his vehicle and it rotated 180 degrees before it left the road and ended up facing some rocks.

5 Earlier in the evening the appellant had attended a work function where he had been consuming alcohol. His initial intention had been not to drive home. However, he became involved in an altercation at the function which led to his driving his vehicle. The last thing he remembered before the collision was getting into the vehicle to leave the work function. His next memory was of stopping after the collision. A passing motorist alerted police who attended at the scene. The police arranged for the appellant to be conveyed to hospital for precautionary examination and to undergo a breath analysis test. The test was conducted early on the morning of 22 December 2007. It indicated that the appellant had a blood alcohol content of 0.215%, calculated to have been 0.187% at the time of the offence.

6 The appellant was charged on summons with two offences: first, driving under the influence of alcohol to such an extent as to be incapable of having proper control over the vehicle and, secondly, while so driving, being involved in an incident occasioning the death of the deceased. He pleaded guilty to the first of those charges and not guilty to the second. On 30 and 31 October 2008 he was tried before a magistrate. On 19 December 2008 the magistrate delivered reasons for decision in which he convicted the appellant on the charge of dangerous driving occasioning death. He was remanded through to 13 February 2009 for sentencing in relation to both charges.

7 On 13 February 2009 the magistrate dealt with the appellant on the charge of driving under the influence of alcohol. The appellant was fined $1,000 and was disqualified from holding or obtaining a driver's licence for a period of nine months. However, the magistrate determined that the sentencing options open to him in respect of the charge of dangerous driving occasioning death were insufficient. At that time the maximum that a magistrate could impose was 18 months' imprisonment. The magistrate therefore remanded the appellant to the District Court for sentencing on that charge.

8 In the District Court on 11 May 2009 Sleight DCJ sentenced the appellant to 7 years and 6 months' imprisonment backdated to 8 May 2009, with eligibility for parole. His Honour also imposed a life disqualification of the appellant's driver's licence. The appellant appeals against this sentence.

9 The appellant was charged under s 59 of the Road Traffic Act 1974 (WA) which provides, relevantly:

(1) If a motor vehicle driven by a person (the driver) is involved in an incident occasioning the death of ... another person and the driver was, at the time of the incident, driving the motor vehicle -

(a) while under the influence of alcohol, drugs, or alcohol and drugs to such an extent as to be incapable of having proper control of the vehicle; or

...

the driver commits a crime and is liable to the penalty in subsection (3).

(3) A person convicted on indictment of an offence against this section is liable -

(a) if the offence is against subsection (1)(a), ... to a fine of any amount and to imprisonment for -

(i) 20 years, if the person has caused the death of another person;

10 This was not the first occasion on which the appellant had been involved in a motor vehicle incident that resulted in the death of another person. Counsel for the appellant submitted that, in those circumstances, s 105 of the Act could be relevant. It provides:

Where -

(a) a person is convicted of an offence (in this section referred to as the present offence) against this Act; and

(b) the penalty or penalties which may or shall be imposed for the present offence vary according to whether the person has been convicted previously of an offence against this Act,

any such previous offence the conviction for which was recorded more than 20 years before the commission of the present offence shall not be taken into account for the purposes of determining the penalty or penalties to be imposed for the present offence.

11 The sentencing judge gave detailed reasons for his decision to imprison the appellant for 7 years and 6 months.

12 His Honour dealt with the circumstances that caused or contributed to the incident. He found that the appellant's inability to see the deceased walking by the side of the road and to keep his vehicle on the road's sealed surface was wholly attributable to the fact that he was under a level of intoxication that caused the vehicle to leave the sealed surface of the road and collide with the deceased. He opined that the appellant's decision to drive a vehicle on this occasion could not be viewed as an isolated occasion of misjudgement. The danger of driving a vehicle while intoxicated to the point that he was incapable of proper control of the vehicle should have been well known to him, of all people, in light of his prior record. He ought to have understood the need for proper care when driving a motor vehicle and the very tragic consequences that follow when this does not occur.

13 The sentencing judge had received a victim impact statement from the deceased's wife and children which attested to the enormity of the loss and trauma they had suffered.

14 His Honour then turned to the appellant's personal circumstances. He noted that the appellant was aged 47. He had a strained relationship with his father and had left home at the age of 15. He had a good work history except for the times spent in prison; he had held a variety of labouring positions throughout his life and was currently employed as a tree lopper. The appellant had married at the age of 18 and had two children who resided with he and his wife. They enjoyed a close bond and a normal family life. His partner was supportive and there was no history of marital dysfunction.

15 The appellant had commenced using alcohol at the age of 15 and was a heavy drinker. But he did not appear to recognise that he had any alcohol problem despite his history of traffic offences involving the drug. This was reflected in the psychological report which concluded:

There is however evidence of a significant attachment to alcohol and an unusually persistent denial of the consequences of his consumption in relation to high-risk behaviour such as drink driving.

16 The sentencing judge commented that the appellant's prior offending history and his appalling traffic record was an exceptional feature of the case. In March 1983 the appellant had been convicted of dangerous driving causing death and received a term of 12 months' imprisonment. The victim on this occasion was the appellant's brother. In May 1996 the appellant was again convicted of dangerous driving causing death and received a term of 18 months' imprisonment. On that occasion the victim was a close friend and work colleague.

17 In addition, he had been convicted of five offences of driving without a driver's licence and three offences of driving with a blood alcohol level in excess of 0.08%. The sentencing judge noted that there were gaps in his record between 1983 and 1991 and between 1996 and 2001 but this was explained, in part, by the fact he was serving terms of imprisonment during those times. His Honour remarked that the appellant's prior offending record was not an aggravating feature and would not result in the imposition of a more severe sentence. However, it demonstrated that the present offence was not an uncharacteristic misjudgement. It also indicated that particular emphasis had to be given to personal deterrence. The pre-sentence report suggested that the appellant did not appear to recognise the extent of his problem with alcohol and lacked the maturity to comprehend the significance of his offending behaviour. The report suggested he presented a high risk of re-offending in the same manner.

18 The sentencing judge had received references from the appellant's wife and two other people confirming that he was dedicated to his family and that he had a good work ethic. While these statements were taken into account in mitigation, their impact was substantially reduced by the appellant's history of irresponsible driving.

19 The sentencing judge commented that this case did not fall within the worst category of cases of its type. However it was within the upper levels of seriousness taking into account the death of the deceased, its impact on his family and the inherent and obvious dangers of driving a motor vehicle while incapable of proper control. His Honour also referred to the appellant's level of intoxication at the time, and the degree of selfishness and disregard to others, particularly in light of his past history that ought to have alerted him to the potential consequences of irresponsible driving. He noted that the appellant was charged under s 59(1)(a) of the Act and that his culpability arose not so much because of the manner of his driving but because of his level of intoxication which, at 0.187%, was well above the legal limit.

20 In all the circumstances his Honour determined that the appropriate penalty was a term of 7 years and 6 months' imprisonment backdated to 8 May 2009. The appellant was made eligible for parole. His Honour also imposed a life disqualification of the appellant's driver's licence.

21 There is a single ground of appeal; namely, that the sentence of 7 years and 6 months was manifestly excessive having regard to the circumstances of the offending and given the length of sentences commonly imposed for similar offending.

22 The appellant does not assert that the sentencing judge acted on a wrong principle, overlooked a relevant factor, took into account an irrelevant factor or committed any other express error of law or fact that vitiated the exercise of the sentencing discretion. Rather, the complaint is one of inferred error; that is, that although it may not be possible to identify the exact error that has been made, the exercise of the discretion falls to be reviewed because a substantial wrong has in fact occurred: Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 [3].

The appellant's prior record and personal circumstances

23 It is apparent that the sentencing judge was heavily influenced by the appellant's prior offending. It is not suggested that his Honour increased the sentence because of the prior record but he clearly gave it considerable weight in deciding, for instance, that personal deterrence and protection of the community were dominant sentencing considerations. His Honour sentenced the appellant on the basis that this was the third occasion on which he had been dealt with for similar offences. A question which arises is whether that conclusion is legally apposite.

24 The appellant had been convicted of dangerous driving causing death under s 59(1) of the Act on 2 March 1983 (more than 20 years before the present conviction) and of a similar offence on 24 May 1996. Counsel for the appellant submitted that it was open to construe s 105 of the Act as meaning that the 1983 conviction could not be taken into account and that, accordingly, he came before the sentencing judge as a second-time offender.

25 That submission ought not to be accepted. On its proper construction, s 105 of the Act does not apply in circumstances such as this. The section applies where the penalty which may or must be imposed varies according to whether the person has been convicted previously of an offence against the Act. Further, it seems to me that the phrase 'penalty or penalties which may or shall be imposed' refers to the statutory maxima or mandatory penalty specified in the section rather than a sentence that might be imposed in the exercise of the sentencing discretion. Examples of provisions of this nature are driving while unlicensed or disqualified (s 49(1)), dangerous driving (s 61(3)) and driving under the influence of alcohol or drugs (s 63(2)). In such circumstances a conviction that is more than 20 years old cannot be taken into account. That is not the position here. Section 59 does not prescribe any different penalty for a second or subsequent offence than it does for a first offence.

26 In any event, the appellant had a conviction for driving with a blood alcohol level in excess of 0.08% in November 2001. In my view that conviction, coupled with the May 1996 offence, would have been ample justification for the sentencing judge's approach even without the 1983 charge.

27 In my view the sentencing judge correctly appreciated the role that the appellant's prior record was to play in the sentencing process. His Honour's approach was in accord with the direction given by the High Court in Veen v The Queen [No 2] [1988] HCA 14; (1988) 164 CLR 465, 477. Although the relevant passage from the judgment is well known, the circumstances of this case render it advisable to repeat it:

[T]he antecedent criminal history of an offender is a factor which may be taken into account in determining the sentence to be imposed, but it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence. To do so would be to impose a fresh penalty for past offences: Director of Public Prosecutions v. Ottewell (1970) AC 642, at p 650. The antecedent criminal history is relevant to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind.

28 In this case it is difficult to conclude other than that the appellant has manifested a continuing attitude of disobedience of the law and that protection of society requires that a severe penalty be imposed. The appellant ought to have appreciated that driving while under the influence of alcohol could have disastrous consequences for innocent parties. He was no novice to the consumption of alcohol and ought to have appreciated that his capacity properly to control a vehicle was compromised. His initial decision not to drive home was the correct one. The explanation for his change of heart (an altercation with another or others at the work function) was lame and has no mitigatory function. In these circumstances the need for personal deterrence and the protection of the community was, as his Honour recognised, of great importance. This was especially so given the comments in the psychological and pre-sentence reports to the effect that the appellant lacked a proper appreciation of the high risks involved in drink-driving and that he represented a high risk of re-offending.

29 The appellant's strong family ties and his good employment record were taken into account. But in view of the serious nature of the offence and the consequences that had flown from it there was a limit to the mitigatory function those considerations could play. It must also be noted that the appellant did not enter a plea of guilty to this charge. While that does not in any way aggravate his conduct it removes a mitigating factor that might otherwise have been available (and which was present in some of the other cases to which I will refer shortly).

30 I do not believe that error can be inferred from the way his Honour approached either the appellant's prior record or his personal circumstances.

31 Leaving to one side the question of alcohol, this was not a case where the tragedy arose because of speed, reckless behaviour or callous indifference. The appellant was driving in a rural (or semi-rural) area at a time when it would not be expected that a pedestrian would be walking in such close proximity to the edge of the road. His vehicle left the sealed surface of the road by about 200 mm to 300 mm. All of that is true. But the circumstances cannot be divorced from the issue of alcohol. The magistrate made a finding that the appellant should have been able to see and to avoid the deceased and the reason that did not occur was the appellant's level of intoxication. That finding was not challenged before the sentencing judge and nor was it an issue in the appeal.

32 The appellant had a blood alcohol level calculated to have been 0.187% at the time of the incident. That level is such that the appellant was deemed, by virtue of the Act, to have been incapable of exercising proper control of a vehicle. The legislature has made it clear that this is a serious aggravating feature in relation to offences of this type. In my view there is little by way of mitigation to be found in the circumstances in which the incident occurred.

33 As often occurs in appeals of this nature the gravamen of the appellant's challenge lay in the proposition that the sentence imposed on him was excessive when compared with punishment meted out to offenders in comparable cases. I will commence with the usual note of caution. There is no tariff for offences of this nature because of the wide variety of circumstances in which they can occur and the differences in the personal circumstances of individual offenders. Sentencing for this offence, indeed for any offence involving the death of a victim, is inherently difficult because of the recognition of the value of a human life and the almost impossible task of compensating for its loss.

34 In the written submissions counsel for the appellant provided a useful table identifying some of the relevant decisions. The current form of s 59(1) came into force in 2005. Decisions prior to that time are of limited assistance. However, some assistance can be gleaned from motor manslaughter cases because the statutory maxima are the same: The State of Western Australia v Butler [2009] WASCA 110 [7].

35 In Longbottom v The State of Western Australia [2008] WASCA 203 the offender drove from an hotel with three passengers in the vehicle. He drove at about 80 km per hour in a 50 km per hour zone and ignored pleas from one of the passengers to slow down. He lost control of the vehicle and crashed into a house killing two of the passengers. At the time of the incident his blood alcohol level was 0.089%. He was charged with two counts of manslaughter and his offer to plead guilty to two counts of dangerous driving causing death was rejected. He was found guilty of the latter offences and the fact that he went to trial has to be viewed in that light. He was 19 years of age at the time, was remorseful and had good antecedents. He was sentenced to two cumulative terms of 1 year and 8 months. The offender's age, lower alcohol reading and the offer to plead guilty place the case in a different category to that of the appellant.

36 In Eves v The State of Western Australia [2008] WASCA 7 the offender was charged with three counts of dangerous driving causing death. He had been driving a vehicle which was towing a trailer. He was observed to be swerving from side to side and he ignored attempts to get him to stop. There was a collision which involved the offender's vehicle and trailer and an oncoming vehicle, which then involved a third vehicle. The other vehicles caught fire and three people in them died. The offender was not affected by drugs or alcohol. He was 29 years of age and had no convictions of any sort since the age of 21. He was convicted after a trial and was sentenced to 1 year and 8 months' imprisonment on each count to be served cumulatively, making an aggregate sentence of 5 years' imprisonment. On appeal, the individual sentences were not disturbed but by introducing a degree of trial accumulation the total effective sentence was reduced to 3 years and 4 months. Again, I think this is a case of a different type and I do not believe the appellant can take much comfort from it.

37 The offender in The State of Western Australia v Gibbs [2009] WASCA 7 pleaded guilty to two counts of dangerous driving occasioning death and was sentenced to 3 years' imprisonment on each charge. However, due to partial accumulation the effective sentence was 4 years and 6 months. The offender drove at approximately 160 km per hour in a 100 km per hour zone before colliding with a motorcycle, killing the rider and a passenger. The offender was 28 years of age and had no prior convictions of any significance. There was no evidence that alcohol was involved. I do not think Gibbs is relevantly comparable.

38 Butler was a case in which the offender drove while under the influence of alcohol. Speed was a factor in the incident. His blood alcohol reading was in excess of 0.166%. However, the offender had ceased drinking about 10 hours before the incident and had been asleep in the interim. It was not possible to sustain a finding that he was aware of his level of intoxication. He was only 24 years of age and, apart from a prior conviction of driving with a blood alcohol level in excess of 0.02% while holding a probationary licence, he was otherwise of good character. There was no history of deliberate defiance of the law or of disregard of road rules generally. There was no evidence that his manner of driving at the time of the incident was a persistent pattern. The offender pleaded guilty at the earliest opportunity and was sentenced (for the offence of dangerous driving occasioning death) to immediate imprisonment for 34 months as part of a total sentence of 3 years and 8 months. In my view there are so many distinguishing features that resort to Butler does not assist the appellant.

39 The most recent case is Taylor v The State of Western Australia [2009] WASCA 226. The offender was 18 years old. He and friends attended a birthday party. He was the designated driver and did not drink any alcohol on the evening. A little after midnight, the appellant was driving a car with some of his friends as passengers. At a set of traffic lights the driver of another vehicle invited him to engage in a drag race. During the drag race, the appellant reached a speed of about 120 km per hour, but then slowed to about 90 km per hour. The speed limit in the area was 80 km per hour. The race lasted no more than about 90 seconds. He lost control of the vehicle and crashed, killing one of his passengers. He was convicted after trial of one count of dangerous driving causing death for which he received a sentence of imprisonment for 26 months (together with a concurrent sentence of 14 months for another offence). On appeal the sentence was reduced to 1 year and 8 months. Taylor was truly a case of momentary misjudgement, rather than selfish disregard for others. While the characterisation of conduct as misjudgement or disregard has limitations (see Eves [22]) it may still be a relevant consideration. This categorisation, combined with the offender's youth and the absence of alcohol, distinguish Taylor from the circumstances of the appellant's offence.

40 I do not propose to go into as much detail in relation to the motor manslaughter cases. Punch v The Queen (1993) 9 WAR 486 was described as one of the worst cases showing wilful disregard for the life and safety of others. Alcohol was involved. After a trial, the 41-year-old offender received a sentence of 6 years and 8 months (adjusted for the transitional provisions) for the manslaughter offence. But it was part of an overall sentence of 8 years (adjusted) and it was cumulative on prior sentences. Totality considerations may have affected the terms imposed for the manslaughter.

41 The offender in Wood v The Queen [2002] WASCA 95; (2002) 130 A Crim R 518 was a 24-year-old woman with good antecedents who drove when she knew she was fatigued. She fell asleep at the wheel and ran down and killed a person who was walking by the roadside. There was no evidence that alcohol was involved. After a trial she was sentenced to imprisonment for 18 months. The sentence was upheld on appeal. But the real point agitated in the appeal was whether the sentence should have been suspended rather than the length of the term.

42 Penny v The State of Western Australia [2006] WASCA 173 was another serious case. The offender (aged 25) had stolen a vehicle and crashed it in the course of a police pursuit. A passenger in his vehicle died as a result of injuries sustained in the crash. The offender pleaded guilty to a charge of unlawful killing and was sentenced to imprisonment for 8 years without eligibility for parole. He had very bad antecedents.

43 In The State of Western Australia v Garlett [2007] WASCA 274 a 46-year-old offender pleaded guilty to one count of manslaughter and one other charge. He was sentenced to 6 years' imprisonment for manslaughter. The incident that resulted in the death arose from a situation in which the offender had felt he needed to protect some children who he thought were under threat. There was no evidence that alcohol was involved. The sentence was upheld in a State appeal that was decided before the enactment of s 41(4)(b) of the Criminal Appeals Act 2004 (WA) and thus when the double jeopardy principle still applied.

44 Some of the manslaughter cases involve quite long sentences imposed on very young offenders, albeit some with bad criminal histories. McKenna v The Queen (1992) 7 WAR 455 (5 years and 4 months, adjusted for transitional provisions), Clinch v The Queen [1999] WASCA 57 (5 years and 4 months, adjusted) and Farmer v The State of Western Australia [2007] WASCA 219 (5 years and 4 months in a total of 7 years and 4 months) are examples. In other cases, the youth of the offender has resulted in significantly shorter sentences: see, for example R v Stebbings (1990) 4 WAR 538 (2 years, adjusted) and R v S (No 2) (A Child) (1992) 7 WAR 434 (1 year and 1 month, adjusted). In each of these five cases (other than Stebbings) the offender had pleaded guilty.

45 There are other cases, and Taylor v The State of Western Australia [2007] WASCA 218 is an example, where the fact that there were multiple deaths arising from the same incident has complicated the sentencing exercise.

46 There are two other manslaughter cases which, I think, demonstrate the difficulty of making meaningful comparisons. In The Queen v White [2000] WASCA 118 the offender (aged 35) was driving with two passengers in the vehicle. He was doing 'burnouts' and taking deliberate risks at speed when he lost control and fishtailed, skidding into a tree. One of the passengers was killed. He had a blood alcohol reading of 0.138%. He had a prior record for driving under the influence of alcohol and four convictions for driving without a licence. After a trial, the sentence imposed on him was 2 years and 8 months (adjusted). In White v The Queen [2003] WASCA 197 the offender (aged 42) was driving with a blood alcohol reading of 0.072%. He was driving recklessly at between 60 km per hour and 70 km per hour in a 50 km per hour zone. Despite being warned by a passenger he drove through a stop sign and collided with a car, killing two people. He was impaired by alcohol but not grossly so. He pleaded guilty to two counts of manslaughter and was sentenced to 6 years and 8 months in adjusted terms.

47 This review of the authorities indicates that the sentence of 7 years and 6 months imposed on the appellant was high. But it also shows that the disposition in a particular case is extremely sensitive to the individual circumstances of the offending and of the offender. It demonstrates (if demonstration was needed) that there is no tariff for offences of this nature. I would go further and say that it is difficult to identify sentences that are commonly imposed for the offence of dangerous driving occasioning death. This is quintessentially an area in which the discretion residing in the first instance judicial officer must be accorded due respect.

48 In previous sections of these reasons I have dealt with the circumstances of the offences and the personal circumstances of the appellant. It is true that (leaving alcohol to one side) the manner of driving employed by the appellant was not as egregious as that of the offenders in some of the other cases. But as I have already said, alcohol cannot be left to one side and there was a finding that the appellant's level of intoxication was a causal factor in his failure to see and avoid the deceased. The appellant's previous record of offences of this type and his apparent inability to appreciate the dangers that drink-driving entails militated strongly in favour of a heavy deterrent sentence.

49 In my view the sentence of 7 years and 6 months imposed on the appellant is not manifestly excessive. I cannot identify error in the way the sentencing judge approached the task that confronted him and nor can I infer error from the result. The ground of appeal has not been made out.

50 The appellant already has leave to appeal. But the appeal must be dismissed.

Clinch v The Queen

At a glance

Court

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Before

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Judgment (85 paragraphs)

BARRON -v- THE STATE OF WESTERN AUSTRALIA [2010] WASCA 27 (18 February 2010)

Parties

Legislation Cited (2)

Cases Cited (6)