Road traffic - Dangerous driving causing death - 2 year term of immediate imprisonment - Whether arguable case that term be suspended

Cranssen v the King [1936] HCA 42; (1936) 55 CLR 509

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

Samuels v Western Australia (2005) 30 WAR 473; [2005] WASCA 193

1 McKECHNIE J: Because I have had the advantage of very full and complete submissions by the appellant's counsel, and the transcript of the magistrate's reasons, I am in a position to deal with this application for leave now.

2 On 28 January this year, the appellant was sentenced to a term of two years' imprisonment, with parole eligibility, for one count of dangerous driving causing death.

3 He seeks leave for appeal effectively on one ground of appeal:

(1) The learned Magistrate erred in law by imposing a sentence that was manifestly excessive.

Particulars

(a) The learned Magistrate erred by imposing an immediate term of imprisonment rather than suspending the sentence pursuant to section 76 of the Sentencing Act 1995.

(b) The sentence imposed failed to properly reflect the weight of the appellant's personal circumstances.

4 It is obvious but necessary to state that the Criminal Appeals Act 2004 (WA) requires that leave to appeal must only be granted if there are reasonable prospects of success. As explained in Samuels v Western Australia (2005) 30 WAR 473; [2005] WASCA 193, the ground is required to have a rational and logical prospect of succeeding; that is, it would not be irrational, fanciful or absurd to envisage it succeeding in that forum; in effect, that it has a real prospect of success [56].

5 The facts accepted by the magistrate and found in relation to the offence are as follows:

The accused [appellant] spent the evening of Wednesday, 13 August 2008 at a social function, a charity-fundraiser for the uni camp for Kids for underprivileged children, at the campus of the University of Western Australia. He consumed alcohol at that function. He left the function and drove his Toyota wagon north on Hackett Drive towards the intersection of Mounts Bay Road.

As he approached the intersection, he sideswiped the rear side of the vehicle owned by Mr James Edward Hennessey. Mr Hennessey was standing at the open rear door of the vehicle and was crushed between the vehicles. He suffered significant injuries and died shortly after the accident. Mr Flynne [the appellant] underwent a breath analysis shortly after the accident and his reading was calculated to be .136 alcohol at the time of the occurrence. There is no dispute that that is a high reading.

We are told that Mr Flynne [the appellant] is 20 years of age, he turned 20 on the day of this tragedy, namely, 13 August 08. He is currently enrolled to commence his fourth year of a combined engineering and commerce degree at the University of Western Australia. He lives with his mother and stepfather and two younger sisters, aged 15 and 13.

It appears to be a happy, close and loving family unit, all members of which are devastated by the events of 13/8/08, and that this devastation appears to have arisen not only because of the predicament Mr Flynne [the appellant] finds himself in, but also from the tragic loss of the life of Mr Hennessey as a result of Mr Flynne's [the appellant's] driving.

6 In advance of sentence, the magistrate took into account the detailed submissions. The appellant was represented by senior counsel. The magistrate noted further the mitigating circumstances of the appellant - his youth, his good character and antecedents. He also had a pre-sentence report and numerous references. The appellant had no record of any description prior to this one and had entered a plea of guilty at an early opportunity and had never sought to resile from his absolute culpability for the death of Mr Hennessey. The magistrate noted the convincing evidence of the appellant's genuine remorse.

7 It is not suggested that the magistrate failed to take into account any relevant matter, and as the submissions for the appellant set out, it is clear that the magistrate turned his mind to the question of whether a suspended sentence was appropriate.

8 The ground of appeal and the way in which Mr Levy has put the matter this morning, which I consider is correct, is that the error is an error in the result rather than in the reasoning process; that is, that in all the circumstances, the magistrate, in a way which demonstrates error, wrongly weighted the offence in favour of a term of immediate imprisonment. That becomes clear by what the magistrate said:

I have applied the principles as found in Dinsdale's case. I appreciate that a suspended sentence is a powerful deterrence to offending, but in this case the circumstances and consequence of Mr Flynne's [the appellant's] action are too serious for the exercise in my discretion to suspend that sentence.

9 The submission is that is an error because the mitigating factors were so numerous and have such weight that a suspended sentence was the appropriate penalty in all the circumstances.

10 It may be accepted that the mitigating factors were strong. It is accepted by the appellant through counsel, that a term of imprisonment is commonly imposed for the offence and that general and specific deterrence are important principles in sentencing for these types of offences.

11 The magistrate noted appropriately that the sentencing process is required to fulfil dual functions: that of specific and general deterrence. As to the second, he said:

The second obligation is to provide a general deterrence to the community as a whole to dissuade members of society of offending in a similar manner to Mr Flynne [the appellant] of driving after having been drinking.

We are all familiar with the constant urgings of senior police officers involved in traffic control, members of road safety organisations and even government ministers responsible for road safety, they're urging for people to be more careful on the road. They are constantly urging road users to slow down and also not to drink and drive. It appears that a proportion of drivers pay no heed to these urgings.

A recent overnight campaign in Northbridge which conducted random breath tests on every driver in Northbridge produced a multitude of drivers driving over the alcohol limits, each of them prepared to take the risk of driving whilst under the influence of alcohol, none of them paying heed to the warnings of the dangers of the driving whilst under the influence of alcohol or whilst having previously drunk alcohol.

I feel that an immediate prison sentence needs to be imposed in this case before me today and not specifically to make an example of Mr Flynne [the appellant], but to all members of society be aware that if they make a decision to drive after they have been drinking, before the journey is over they may well have done something that's going to result in them finding themselves in gaol and that should result if they kill or hurt someone seriously.

12 The reference to an immediate prison sentence in that last paragraph is unclear because he then went on to specifically consider suspension of sentence. What he said was:

Having decided that a prison sentence is the appropriate penalty, I am now required to give consideration to the question of a suspension of that prison sentence. I have applied the principles as found in Dinsdale's case.

13 It would appear to me that in the end what the magistrate was did was weigh the very powerful mitigating factors against the principles of general deterrence and then reach a conclusion. The appellant must establish a reasonably arguable case that the magistrate's discretion miscarried. He must do so against authorities such as House v the King [1936] HCA 40; (1936) 55 CLR 499. House v the King is commonly quoted but it is worthwhile remember what was actually said:

It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred. (405)

14 It is essentially that proposition which is put before me today in this application for leave. In the next case, in the same volume of the Commonwealth Law Reports, Cranssen v the King [1936] HCA 42; (1936) 55 CLR 509, commencing at 509, the Court at 519 repeated what they had said earlier in House v the King and continued at 520:

But it is not necessary that some definite or specific error should be assigned. The nature of the sentence itself, when considered in relation to the offence and the circumstances of the case, may be such as to afford convincing evidence that in some way the exercise of the discretion has been unsound. In short, the principles which guide courts of appeal in dealing with matters resting in the discretion of the court of first instance restrain the intervention of this court to cases where the sentence appears unreasonable, or has not been fixed in the due and proper exercise of the court's authority.

15 Importantly, the High Court noted that local courts may be in a better position to judge:

It is familiar with the special conditions which obtain in the territory and thus should be better able to estimate the importance of considerations arising out of them or the significance of facts associated with them.

16 That is relevant to some degree here. Magistrates Courts are the main trial courts of criminal trial in this State and deal with almost all of the traffic offences, including summary trials and convictions for dangerous driving causing death. In consequence, a magistrate is in a good position to gauge when a sentence of general deterrence may be required for specific offences, whether regionally or, as here, more widely.

17 I am acutely conscious that the appellant does not have to show an arguable case of error in anything other than the result. I am also conscious that I am not here to decide the appeal. However, I do not discern any error of fact or approach in the result. The strong mitigating factors had to be weighed with the need for general deterrence, as outlined by the magistrate, and a punishment had to be decided to meet that need. The weighting of the various competing matters for a sentence was for the magistrate and this Court can only intervene by way of leave to appeal if the magistrate arguably erred.

18 Having regard to the numerous authorities of the Court of Appeal, and the Court of Criminal Appeal in former times, in relation to the offence of dangerous driving causing death, the strong need for general deterrence, and having regard to the fact that the magistrate took into account all the matters that were put before him and made a decision, there are no reasonable prospects of success on the articulated ground that the magistrate erred in failing to suspend the sentence. Leave to appeal is therefore refused.