Citation : STATE OF WESTERN AUSTRALIA -v- DEVINE [2009] WADC 109

Criminal law - Sentence - Aggravated dangerous driving occasioning death - Aggravated dangerous driving occasioning grievous bodily harm - Manifest excess - Totality principle - Turns on own facts

Criminal Appeals Act 2004 (WA), s 41(4)(b)

Criminal Law and Evidence Amendment Act 2008 (WA)

Evidence Act 1906 (WA), s 31A

Road Traffic Act 1974 (WA), s 59(1)(a), s 59(1)(b), s 59(3)(a)(i), s 59(3)(a)(ii), s 59A(1)(a), s 59B(3), s 59B(6)

Road Traffic Amendment (Dangerous Driving) Act 2004 (WA)

Barron v The State of Western Australia [2010] WASCA 27

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

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; (2008) 49 MVR 259

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

H v The State of Western Australia [2006] WASCA 53; (2006) 163 A Crim R 151

Kay v The Queen [2004] WASCA 222; (2004) 42 MVR 130

Longbottom v The State of Western Australia [2008] WASCA 203; (2008) 51 MVR 224

Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665

McKenna v The Queen (1992) 7 WAR 455; (1992) 63 A Crim R 452

Moody v French [2008] WASCA 67; (2008) 36 WAR 393

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

Punch v The Queen (1993) 9 WAR 486; (1993) 67 A Crim R 46

R v Bangard [2005] VSCA 313; (2005) 13 VR 146

R v S (No 2) (a child) (1992) 7 WAR 434; (1992) 60 A Crim R 235

R v Stebbings (1990) 4 WAR 538; (1990) 12 MVR 553

Royer v The State of Western Australia [2009] WASCA 139

Taylor v The State of Western Australia [2007] WASCA 218; (2007) 48 MVR 562

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

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

Vagh v The State of Western Australia [2007] WASCA 17

White v The Queen [2003] WASCA 197; (2003) 39 MVR 157

Woods v The Queen (1994) 14 WAR 341

1 McLURE P: This is an appeal against sentence. The appellant was convicted after trial of one count of dangerous driving causing death (count 1) and one count of dangerous driving occasioning grievous bodily harm (count 2), with both counts occurring in a circumstance of aggravation, contrary to s 59(1)(b) of the Road Traffic Act 1974 (WA) (the Act). The circumstance of aggravation was that the appellant drove at a speed in excess of 45 km per hour over the speed limit.

2 The case was tried by judge alone. On count 1 the appellant was sentenced to a term of 5 years 6 months' imprisonment and on count 2 to a term of 1 year 6 months' imprisonment. The sentences were ordered to be served cumulatively, resulting in a total effective sentence of 7 years' imprisonment.

3 The issues in the appeal are whether the sentence of 5 years and 6 months' imprisonment is manifestly excessive and whether the total sentence of 7 years offends the first limb of the totality principle.

4 The facts are as follows. The appellant had recently purchased a Holden Commodore. A day or two before the commission of the offences, the appellant had been driving the vehicle with three passengers including a Mr Brown who gave evidence that the appellant had reached speeds of 190 km per hour but had slowed down when he was demanded to do so. The following day the appellant spoke with a Mr Leaman and told him that when he dies it would be in car accident and he would be going 'flat out'. As it turned out, it was not the appellant who died.

5 On 13 April 2008 at about 8.30 pm, the appellant was driving his vehicle with three passengers. His girlfriend Casey Anderson was seated in the front passenger seat. In the rear were Hayley Morrison and Garry Press.

6 The appellant was driving along a dark country road. He said he wanted to see how fast the car would go and sped off. On viewing the speedometer, which read approximately 210 km or 220 km per hour, Ms Anderson asked the appellant to slow down. He did not. A short time later, the appellant lost control of the vehicle, slammed on the brakes and smashed into a power pole causing fatal injuries to Ms Morrison and severe injuries to Mr Press.

7 Shortly before the crash, the lights of the appellant's vehicle were captured by a security camera at 10.22 pm. Approximately 25 seconds later, the appellant's vehicle collided with the power pole which caused a power outage. The trial judge found that the appellant was travelling in excess of 171 km per hour in order to reach the pole after passing the camera.

8 The appellant was aged 21 at the time of the offence. He left school in year 10, completed an apprenticeship in bricklaying and worked as a bricklayer up to the time of the commission of the offences. The appellant struggled to come to terms with what he had done, suffering depression and anxiety attacks culminating in a suicide attempt. It can be inferred that the appellant has insight into the gravity of his offending. He also suffered a fractured collarbone in the course of getting one of the victims from the car for which he has had surgery. The appellant was not affected by alcohol or drugs at the time of the offences.

9 The appellant had a prior record of offences none of which assumed any material significance in the sentencing exercise. Further, the appellant made admissions which had the effect of shortening the trial and facilitating the course of justice.

10 The legal principles for the determination of this appeal are well-known and uncontroversial. This court is not entitled to intervene merely because it would have exercised the sentencing discretion in a manner different from the sentencing judge. It is only entitled to intervene if the sentencing judge has made an express or implied material error of fact or law. A claim of manifest excess asserts the existence of implied error: Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 [6].

11 In determining whether a sentence is manifestly excessive regard is had to the maximum sentence prescribed by law for the offence, the standards of sentencing customarily observed with respect to that offence, the place which the criminal conduct occupies on the scale of seriousness of offences of that kind and the personal circumstances of the offender.

12 The statutory maximum penalty for the offence of dangerous driving occasioning death which occurs in a circumstance of aggravation, is imprisonment for 20 years (s 59(3)(a)(i)). The maximum penalty for dangerous driving occasioning grievous bodily harm committed in a circumstance of aggravation is 14 years (s 59(3)(a)(ii)).

13 The first limb of the totality principle requires that the total effective sentence bear a proper relationship to the overall criminality involved in all the offences, viewed in their entirety and having regard to the circumstances of the case, including those referable to the offender personally: Woods v The Queen (1994) 14 WAR 341. The practical effect of the totality principle is ordinarily to arrive at an aggregate sentence that is less than that which would be arrived at by simply adding up all the terms appropriate for the individual offences. A rationale for the totality principle is that there is assumed rehabilitation and reduced demand for retribution after the initial sentences have been served.

14 The circumstances of the dangerous driving in this case are towards the higher end of the scale of seriousness of offences of this nature. The appellant made a premeditated, clear-headed, deliberate decision to drive at ridiculous speeds on a dark country road where the speed limit was 110 km per hour. He had three passengers in his vehicle and did not respond to his girlfriend's demand to slow down. The appellant understood that death was a likely consequence of his predilection for driving at dangerous speeds.

15 In examining the standards of sentencing customarily observed, the case law relating to offences committed prior to the commencement of the Road Traffic Amendment (Dangerous Driving) Act 2004 (WA) and the Road Traffic Amendment Act (No 2) 2007 (WA) is of little assistance because of the significantly lower statutory maximum penalties.

16 I have limited my review of comparable cases to those relating to the offence of dangerous driving causing death in a circumstance of aggravation which attracts a statutory maximum penalty of 20 years which is the same as the statutory maximum penalty for unlawful killing (manslaughter) under s 280 of the Criminal Code (WA). It was conceded, correctly in my view, that in the circumstances of this case sentences imposed for motor vehicle manslaughter are comparable.

17 The statutory maximum penalty for dangerous driving occasioning death in the absence of a circumstance of aggravation is 4 years where the offence was committed before 15 March 2008 and 10 years if committed after that date. Thus, cases including Longbottom v The State of Western Australia [2008] WASCA 203; (2008) 51 MVR 224, Eves v The State of Western Australia [2008] WASCA 7 and Taylor v The State of Western Australia [2009] WASCA 226 are not comparable.

18 The highest penalty for a single offence of dangerous driving occasioning death in a circumstance of aggravation is 7 years and 6 months: Barron v The State of Western Australia [2010] WASCA 27. The court in Barron rejected the appellant's claim that the sentence was manifestly excessive. The appellant in that case was convicted after trial. The circumstance of aggravation was that the appellant had a blood alcohol content of 0.187%. He hit and killed a pedestrian walking on the gravel verge of an unlit road. The appellant was aged 47 at the time of the offence, had two prior convictions for dangerous driving causing death and a number of convictions for drink driving. Having regard to the appellant's antecedents, the court concluded that the appellant manifested a continuing attitude of disobedience to the law, lacked proper appreciation of the high risks involved in drink-driving and was a high risk of re-offending. Comparing all relevant sentencing factors, the culpability of the offender in Barron is at a much higher level than that of the appellant in this case.

19 In The State of Western Australia v Gibbs [2009] WASCA 7, the appellant pleaded guilty to two counts of dangerous driving occasioning death. He drove at approximately 160 km per hour in a 100 km per hour zone before colliding with a motor cycle, killing the rider and pillion passenger. The offender was aged 28 and had no prior convictions of any significance. There was no evidence that alcohol was involved. A sentence of 3 years' imprisonment on each count and a total effective sentence of 4 years and 6 months was upheld on appeal. The Court of Appeal accepted that the appellant must have been aware of the increased danger he presented to other road users [58].

20 In The State of Western Australia v Butler [2009] WASCA 110, the offender pleaded guilty to dangerous driving causing death in a circumstance of aggravation and was sentenced to immediate imprisonment for 2 years and 10 months as part of a total sentence of 3 years and 8 months. Alcohol (a reading in excess of 0.166%) and speed were the causative factors. The offender was speeding on a single carriageway sealed road in a residential area. He accelerated heavily to overtake two vehicles in front of him. One of the vehicles had started to turn right. The offender's vehicle collided with that vehicle, mounted the curb, became airborne and travelled over the front yard and garden of a house, colliding with a baby in a pram and the baby's mother. The baby was killed and the mother injured.

21 Sentences imposed for motor vehicle manslaughter were reviewed by Buss JA in Penny v The State of Western Australia (2006) 33 WAR 48. The cases reviewed include R v Stebbings (1990) 4 WAR 538, R v S (No 2) (a child) (1992) 7 WAR 434, McKenna v The Queen (1992) 7 WAR 455, Punch v The Queen (1993) 9 WAR 486, Clinch v The Queen [1999] WASCA 57 and White v The Queen [2003] WASCA 197; (2003) 39 MVR 157. At the time of the review, sentences customarily imposed for motor vehicle manslaughter ranged between 2 years' imprisonment and 6 years and 8 months' imprisonment.

22 However, the court in Penny dismissed an appeal against a sentence of 8 years' imprisonment. The offender had pleaded guilty to the charge of unlawful killing and was not made eligible for parole. The offender was driving a stolen car being chased by police. In the course of the chase, he drove at high speed through a wooden barrier, failed to stop at a stop sign, mounted a curb and collided with a tree and mesh fencing, killing his 18-year-old passenger. The offender had no driver's licence and had been using cannabis. The offences were committed some three weeks after the offender had been released on parole for an earlier offence of stealing a car and driving it recklessly. The earlier offence was committed when the offender was on bail for yet another offence of reckless driving for which the offender had been imprisoned.

23 The sentence of 8 years' imprisonment upheld in Penny remains an outlier. In The State of Western Australia v Garlett [2007] WASCA 274, the offender pleaded guilty to one count of causing grievous bodily harm and one count of motor vehicle manslaughter. The offender drove his vehicle at armed persons involved in a fracas. The sentencing judge sentenced the appellant to 2 years and 8 months' imprisonment for causing grievous bodily harm and 6 years for manslaughter, which sentences were ordered to be served concurrently. The State appeal against sentence was dismissed.

24 In Farmer v The State of Western Australia [2007] WASCA 219, the offender pleaded guilty to motor vehicle manslaughter for which he was sentenced to a term of imprisonment of 5 years and 4 months. The offending involved driving a stolen motor vehicle the subject of a high speed police pursuit through a number of suburbs at speeds up to 140 km per hour, speeding through several traffic lights against a red light and travelling on the incorrect side of the road. The offender was sentenced for a number of matters, including motor vehicle manslaughter.

25 A review of the comparable cases demonstrates that the sentence of 5 years 6 months' imprisonment on count 1 is very severe. Having regard to the appellant's youth, his insight into his offending, his lack of prior convictions for driving related offences and his (limited) admissions, there is much to be said for the appellant's contention that the sentence is manifestly excessive. However, it is unnecessary to determine that question because I am satisfied that the total effective sentence infringes the first limb of the totality principle. Having regard to the severity of the

sentence on count 1 and the other mitigating factors to which I have referred, a total effective sentence of 7 years' imprisonment is disproportionate to the total criminality of the offending. A total sentence of 5 years and 6 months' imprisonment is all that is required to meet the recognised sentencing objectives including punishment, retribution and deterrence.

26 For these reasons, I would allow the appeal, set aside the order for cumulation and in lieu thereof order that the sentence of imprisonment on counts 1 and 2 be served concurrently, resulting in a total effective sentence of 5 years and 6 months' imprisonment. The appellant will be eligible for parole after serving 3 years and 6 months' imprisonment.

27 BUSS JA: The appellant was convicted after a trial in the District Court before Keen DCJ, sitting alone and without a jury, of one count of aggravated dangerous driving occasioning death (contrary to s 59(1)(b) of the Road Traffic Act 1974 (WA) (RTA)) and one count of aggravated dangerous driving occasioning grievous bodily harm (contrary to s 59(1)(b) of the RTA).

28 On 18 August 2009, the trial judge imposed individual sentences of immediate imprisonment, as follows:

(a) count 1 (aggravated dangerous driving occasioning death): 5 years 6 months;

(b) count 2 (aggravated dangerous driving occasioning grievous bodily harm): 1 year 6 months.

His Honour made the sentence for count 2 cumulative on the sentence for count 1. The total effective sentence was therefore 7 years' imprisonment. A parole eligibility order was made.

29 The appellant appeals to this court against the sentencing disposition.

The facts and circumstances of the offending

30 On 13 April 2008, at about 8.30 pm, the appellant was driving his recently acquired Holden Commodore motor vehicle on a country road, namely, Pederick Road, Neerabup. Pederick Road is about 2.6 km in length. It is an unmarked carriageway. There are no lines on the road and no lights. It has concrete edging and a speed limit of 110 km an hour.

Pederick Road terminates at Old Yanchep Road/Pinjar Road, which is marked with black and white chevrons.

31 There were three passengers in the appellant's vehicle. His girlfriend, Casey Anderson, was in the front passenger seat. Hayley Morrison and Gary Press were in the rear passenger seats.

32 The appellant accelerated his vehicle along Pederick Road. His average speed while travelling on the road was about 171 km an hour, but his speed at certain points over the distance used to calculate the average speed was higher.

33 The appellant lost control of his vehicle and smashed into a power pole. The pole was about 65 m from the intersection of Pederick Road with Old Yanchep Road/Pinjar Road. Ms Morrison suffered fatal injuries. Mr Press was severely injured, and these injuries constituted grievous bodily harm.

34 Mr Press suffered a head injury, facial injuries and a fractured arm. He was in a coma for about eight days. He underwent surgery and other medical procedures. Mr Press has no memory of the accident. His permanent disabilities comprise a loss of strength in his arm, short-term memory loss, loss of feeling above the right eye, headaches and loss of teeth.

35 Ms Anderson gave evidence at the trial. The trial judge decided that she was an honest witness. He found on the basis of her evidence that the appellant had said, immediately before driving along Pederick Road, that he wanted to see how fast his vehicle would travel. His Honour accepted her evidence that during the fatal journey she looked across at the speedometer and saw it recording between about 210 km and 220 km an hour. Ms Anderson gave evidence that, on seeing this speed, she told the appellant to slow down. The appellant did not slow down and, a short time later, the crash occurred. Ms Anderson said she did not think there was 'much time' between her telling the appellant to slow down and the occurrence of the accident. His Honour said in relation to her evidence:

She described seeing the chevrons, the accused saying 'Oh shit', slamming on his brakes and losing control. I accept and find that that is what occurred. She also said that this was the first time that the accused had braked on the whole road. I must accept this as being her view of matters.

There is a sequence to these events as described by her; seeing the speed, saying 'slow down', the accused not responding, she seeing the chevrons, the accused saying 'Oh shit', the accused slamming on his brakes, the car going out of control and the crash occurring. There is no suggestion that the sequence is interrupted by any other driving events or passage of any discernable [sic] period of time [142] - [143].

36 Although the trial judge was unable to find that the speed indicated on the speedometer, as seen by Ms Anderson, was correct, he was satisfied beyond reasonable doubt, based on other evidence, that the speed at that time was in excess of 171 km an hour [162].

37 Ms Anderson gave evidence that after the accident the appellant said something about a kangaroo, but she did not see a kangaroo on the road. She accepted, in cross-examination, that she could not exclude one being there.

38 The appellant did not give evidence at the trial. However, in a video recorded interview with the police, which was tendered in evidence, he asserted that he was travelling at 110 km an hour. The trial judge rejected this assertion. He found that the appellant had told a deliberate lie about his speed. The appellant also asserted in the interview with the police that a kangaroo on the left hand shoulder of Pederick Road caused him to swerve and brake his vehicle, and this resulted in his loss of control and the occurrence of the accident. His Honour said that his finding as to the appellant's credibility made it difficult for him to accept his explanation that he swerved to avoid a kangaroo, notwithstanding his statement to Ms Anderson after the accident [182]. He was not satisfied that there was a kangaroo [183]. In any event, the appellant was aware that there might be kangaroos in the area and that it would therefore be dangerous to drive at an excessive speed [183].

The appellant's 'fixation as to speed' and his 'propensity to dramatise it'

39 The trial judge found that the appellant had a 'fixation as to speed' and a 'propensity to dramatise it' [165]. He made these findings in reliance on evidence given by Jamie Brown and Rodney Leaman, which his Honour admitted under s 31A of the Evidence Act 1906 (WA). Mr Leaman gave evidence that he spoke to the appellant on the afternoon of 13 April 2008 (that is, on the day of the accident). During the conversation the appellant spoke about a previous motor vehicle accident and said that when he died it would be in a car accident and he would be going flat out. Mr Brown said in evidence that on the night before the accident, he was a passenger, with others, in the appellant's vehicle. The appellant was the driver. They were travelling on the Coast Road near Wanneroo. It was early evening. The appellant 'put his foot down' [112]. His Honour then recorded Mr Brown's evidence, as follows:

Mr Brown said that when he looked at the speedometer it was at 190 kilometres per hour. He said he told the accused to stop 'otherwise I'd boot his head in'. He said the accused slowed down. He said that the accused had said that they had reached 200 kilometres per hour. He said the road they were on had no street lights; it was in the bush with trees on both sides [113].

40 There are two grounds of appeal. Ground 1 alleges that the sentence imposed for count 1 was manifestly excessive. Ground 2 alleges that the total effective sentence did not bear a proper relationship to the overall criminality involved in the offences.

41 On 10 December 2009, Wheeler JA granted leave to appeal on both grounds.

42 It is necessary, in determining whether a sentence is manifestly excessive, to examine it from the perspective of the maximum sentence prescribed by law for the relevant offence, the standards of sentencing customarily observed with respect to that offence, the place which the criminal conduct occupies on the scale of seriousness of offences of the kind in question, and the personal circumstances of the offender. See Chan v The Queen (1989) 38 A Crim R 337, 342 (Malcolm CJ); Vagh v The State of Western Australia [2007] WASCA 17 [47] (Roberts-Smith JA).

The merits of ground 1: the relevant provisions of the RTA

43 Section 59 of the RTA was amended by, relevantly, the Road Traffic Amendment (Dangerous Driving) Act 2004 (WA) (amending Act). The amending Act came into effect on 1 January 2005. At the material time, s 59 read, relevantly, as follows:

(1) If a motor vehicle driven by a person (the driver) is involved in an incident occasioning the death of, or grievous bodily harm to, 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

(b) in a manner (which expression includes speed) that is, having regard to all the circumstances of the case, dangerous to the public or to any person,

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

Imprisonment for 3 years or a fine of 160PU and in any event the court convicting the person shall order that he be disqualified from holding or obtaining a driver' s licence for a period of not less than 2 years.

...

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

(a) if the offence is against subsection (1)(a), or the offence is against subsection (1)(b) and is committed in circumstances of aggravation, to a fine of any amount and to imprisonment for -

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

(ii) 14 years, if the person has caused grievous bodily harm to another person; or

(b) in any other circumstances, to imprisonment for 10 years or a fine of 400PU,

and, in any event, the court convicting that person shall order that he be disqualified from holding or obtaining a driver's licence for a period of not less than 2 years.

44 The amending Act also introduced s 59B into the RTA. At the material time, s 59B(3) provided, relevantly, that, for the purposes of s 59, a person commits an offence in 'circumstances of aggravation' if at the time of the alleged offence:

(a) the person was unlawfully driving the vehicle concerned without the consent of the owner or person in charge of the vehicle;

(b) the person was driving the vehicle concerned on a road at a speed that exceeded, by more than 45km/h, the speed limit (if any) applicable to that length of road; or

(c) the person was driving the vehicle concerned to escape pursuit by a member of the Police Force.

45 By s 59B(6), in any proceeding for an offence against s 59, it is a defence for the person charged to prove that the death or grievous bodily harm occasioned by the incident was not in any way attributable (as relevant) to the fact that the person charged was under the influence or to the manner (including speed) in which the motor vehicle was driven.

46 In the present case, the circumstance of aggravation applicable to counts 1 and 2 was that the appellant drove his vehicle on Pederick Road at a speed that exceeded, by more than 45 km an hour, the speed limit applicable to that length of road.

47 The maximum penalty for count 1 was 20 years' imprisonment and a fine of any amount: s 59(3)(a)(i) of the Act. The maximum penalty for count 2 was 14 years' imprisonment and a fine of any amount: s 59(3)(a)(ii) of the Act.

The merits of ground 1: the customary standards of sentencing

48 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. See The State of Western Australia v Butler [2009] WASCA 110 [7] (Wheeler JA). The sentence to be imposed in a particular case depends on its individual facts and circumstances, after having regard to the maximum available penalty. It is important, however, in deciding whether a particular sentence is manifestly excessive or infringes the totality principle, to appreciate what sentences are customarily imposed in cases involving similar offending, for the purpose of avoiding the risk of sentencing becoming idiosyncratic and arbitrary.

49 As Steytler P noted in The State of Western Australia v Gibbs [2009] WASCA 7, the maximum penalty for manslaughter is 20 years' imprisonment and the maximum penalty for aggravated dangerous driving occasioning death is also 20 years' imprisonment. His Honour further noted that the Parliament has seen fit to equate the maximum sentence for manslaughter and the maximum sentence for aggravated dangerous driving occasioning death, notwithstanding the different standards of fault [60]. See also Eves v The State of Western Australia [2008] WASCA 7; (2008) 49 MVR 259 [34] (McLure JA). I agree with Steytler P's observation, expressed in Gibbs [60], that manslaughter cases are of some assistance when considering standards of sentencing in cases of aggravated dangerous driving occasioning death.

50 In Gibbs, Steytler P discussed the sentencing dispositions in Penny v The State of Western Australia [2006] WASCA 173; (2006) 33 WAR 48, Kay v The Queen [2004] WASCA 222; (2004) 42 MVR 130, Eves and Taylor v The State of Western Australia [2007] WASCA 218; (2007) 48 MVR 562. It is useful to reproduce his Honour's examination of those cases:

Sentences imposed on offenders for motor vehicle manslaughter were reviewed by Buss JA in Penny v The State of Western Australia [2006] WASCA 173; (2006) 33 WAR 48. The sentences in the cases reviewed by him ranged from 3 years' imprisonment to 10 years' imprisonment. All of those sentences were imposed prior to the operation of the transitional provisions, giving rise to equivalent sentences, allowing for the operation of those provisions, of between 2 years' imprisonment and 6 years and 8 months' imprisonment. There were only two cases in which sentences of 10 years' imprisonment were imposed, being Punch v The Queen (1993) 9 WAR 486 and White v The Queen [2003] WASCA 197; (2003) 39 MVR 157.

In Penny itself, a sentence of 8 years' imprisonment (after applying the transitional provisions) was imposed for an offence of manslaughter. The sentence was upheld on appeal. However, that was an especially bad case. It involved a police chase, the 25-year-old offender having been driving a stolen car. In the course of the chase, the offender drove at high speed. He also drove through a wooden barrier at the end of a cul-de-sac, failed to stop at a stop sign, mounted a kerb and drove on a footpath before colliding with mesh fencing and a tree, killing his 18-year-old passenger. The offender had no driver's licence and he had been using cannabis. The offences were committed some three weeks after the offender had been released on parole for an earlier offence of stealing a car and driving it recklessly. The earlier offence was committed when the offender was on bail for yet another offence of reckless driving for which the offender had been imprisoned. All of these offences involved police chases. The offender also had a prior conviction for robbery and unlawful wounding.

Buss JA did not include Kay v The Queen [2004] WASCA 222; (2004) 42 MVR 130 in his review of the relevant cases, no doubt because it was not a manslaughter case. However, it is relevant for present purposes. In that case, the offender was convicted, after a trial, on two counts of dangerous driving causing death and one of dangerous driving causing grievous bodily harm. He was also dealt with under s 32 of the Sentencing Act on a Petty Sessions charge of dangerous driving causing bodily harm. All four charges arose out of a motor vehicle accident in Merredin.

The offender had been driving a road train. A sedan had stopped at a railway crossing. The offender drove his road train into the back of the sedan, pushing it into a goods train with sufficient force to detach and overturn the train engine. Two passengers in the sedan were killed and one suffered bodily harm. A passenger in the road train suffered grievous bodily harm. At the time of the collision, and prior to it, the railway crossing lights had been activated. The train driver had sounded the horn of the train some 200 m before the crossing and again about 50 m before it, for about five or six seconds each time. Just under a kilometre from the point of collision, the road train had been driving with a 71.6% throttle. However, 258 m from the point of impact, the road train was driven at full throttle (although then still just under the 70 km per hour speed limit). The offender braked only 15 seconds prior to the collision.

The offender had prior convictions for careless driving and for dangerous driving causing bodily harm. He had numerous convictions for speeding. This was the third occasion upon which he had struck the rear of other vehicles while driving road trains. There were few mitigating factors. There was some remorse and the offender was able to produce favourable references.

After a successful appeal, the offender was sentenced to a term of 2 years and 4 months' imprisonment on each of the counts of dangerous driving causing death, a term of 1 year and 4 months' imprisonment in respect of the count of dangerous driving causing grievous bodily harm and a term of 8 months' imprisonment in respect of the charge of dangerous driving causing bodily harm. The sentences imposed on the first three charges were ordered to be served cumulatively. The sentence imposed on the fourth charge was ordered to be served concurrently. This gave rise to a total term of 6 years' imprisonment.

In Eves, the appellant was convicted after a trial on three counts of dangerous driving causing death contrary to s 59(1)(b) of the RTA. He was sentenced to a term of 1 year and 8 months' imprisonment for each offence. The sentences were ordered to be served cumulatively, resulting in a total effective sentence of 5 years' imprisonment (7 years and 6 months' imprisonment before taking into account the transitional provisions). The offender had been driving a utility, attached to which was a large trailer. He was observed to be swerving from side to side on the road. The driver of a following vehicle (a van) attempted to attract the offender's attention so as to get him to pull over. He was unsuccessful. The driver of the van dropped back so as to be some 90 m behind the offender. The offender continued to drive erratically and his trailer moved to a point 1 m over the midline on the road. An oncoming car (a Sigma sedan) struck the trailer, causing the Sigma to rotate onto the wrong side of the road, hitting the van. The Sigma exploded into flames, killing both of its occupants. The driver of the van was also killed. His son, who was a passenger, was injured. The offender, who was 29 years old, had driven erratically because he was tired and unwell. He had been convicted of prior motor vehicle offences, but not since the age of 21.

The offender's appeal was successful. The court considered that the individual sentences imposed were appropriate, but the majority (Steytler P & McLure JA, Miller JA dissenting) ordered that the sentence on count 2 commence 10 months after the commencement of the sentence on count 1 and that the sentence on count 3 commence 10 months after the commencement of the sentence on count 2, resulting in a total effective sentence of 3 years and 4 months' imprisonment (5 years before the operation of the transitional provisions). These changes were made in order to avoid multiple punishments for the common element of each offence (the same episode of dangerous driving) and to take into account the principle of totality. The offender had been disqualified from holding a motor vehicle driver's licence for a period of 2 years on each count, giving rise to a total period of 6 years.

In Taylor, the offender pleaded guilty to five counts of manslaughter. He was sentenced, on each count, to a term of 4 years' imprisonment. Two of those sentences were ordered to be served cumulatively and the rest concurrently, giving rise to a total term of 8 years' imprisonment (12 years prior to the operation of transitional provisions).

The offender had been driving down Beach Road in Mirrabooka. Notwithstanding a 70 km per hour speed limit, he was travelling at somewhere between 110 km and 130 km per hour. He had taken amphetamines and cannabis. A second car was entering Beach Road from another street. The offender's car struck the second car, killing its occupants. Had the offender been driving at the speed limit, the collision would not have occurred. The sentencing judge was satisfied that the offender was not so affected by the drugs that he had consumed as to be incapable of controlling his vehicle. However, he concluded that the offender was motivated by the effect of the drugs to drive at speed and to take risks, and had a diminished ability to assess risks and make safe judgments in hazardous situations. The offender had a limited record for driving offences and was genuinely remorseful, albeit his pleas of guilty were late. He was no longer using drugs. He was 19 years old at the time of the offences.

The offender's appeal was dismissed [61] - [71].

51 I note that the offender in Penny entered early pleas of guilty. I also note that in Eves the maximum available penalty for each of the counts on which the offender was sentenced was only 4 years' imprisonment.

52 In Taylor, Miller JA (Owen & Wheeler JJA agreeing) expressed the view that comparable sentences for motor vehicle manslaughter tend to show that the courts have not always 'valued human life as highly as the legislature (R v Bangard [2005] VSCA 313; (2005) 13 VR 146 [12], Buchanan JA) [46]'. Later in his reasons, Miller JA observed:

This case should ... serve as a clear indication that sentences in excess of 10 or even 12 years (pre-transitional) for motor vehicle manslaughter cases in which there have been multiple deaths and in which the cases can properly be categorised as in the upper end of seriousness for the offence of motor vehicle manslaughter will no longer be considered to be beyond the range for offences of that type. Sentences in motor vehicle manslaughter cases do need to reflect the value placed upon human life by the legislature (R v Bangard per Buchanan JA at [12]) and, in my opinion, they have not in the past always done that [54].

Miller JA, in referring to sentences in excess of 10 or even 12 years (pre-transitional), did not distinguish between an offender who enters a plea of guilty at the earliest opportunity and an offender who pleads not guilty and proceeds to trial. The offender in Taylor entered pleas of guilty and was genuinely remorseful, but his pleas of guilty were late.

54 In Farmer v The State of Western Australia [2007] WASCA 219, the offender pleaded guilty, at the earliest opportunity, to 17 counts in an indictment comprising six counts of stealing motor vehicles, five of aggravated burglary, one of burglary, one of robbery in company, one of unlawful killing or manslaughter and three of unlawfully doing bodily harm. The appellant requested the sentencing judge to deal with 12 charges pending in the Magistrates Court. He was sentenced to a total term of 8 years 8 months' imprisonment. A parole eligibility order was made.

55 The sentence of 8 years 8 months' imprisonment was made up by the accumulation of three individual sentences. One of these individual sentences was 5 years 4 months' imprisonment on count 14 for unlawful killing or manslaughter.

56 The material facts relating to count 13 (stealing a motor vehicle and driving recklessly: 1 year 4 months), count 14 (unlawful killing or manslaughter: 5 years 4 months), count 15 (unlawfully causing bodily harm: 2 years), count 16 (unlawfully causing bodily harm: 2 years) and count 17 (unlawfully causing bodily harm: 2 years) were set out in the reasons of Miller JA (Owen JA agreeing & Wheeler JA relevantly agreeing), as follows:

These were undoubtedly the most serious counts faced by the appellant. They all arose out of an incident that began at about 8.30 am on 20 January 2006. At that time, police attended at an address in Berwick Street, St James, in the driveway of which was the stolen Holden Statesman Caprice. Shortly after police left that location, the appellant drove the vehicle away with the intention of driving to Maddington. He was accompanied by his sister, Leanne Farmer (19 years), his cousin, Daniel Ugle (17 years), his girlfriend, Nikkola Hayward (16 years) and his two younger brothers, Ashley and Clinton (12 and 11 years).

Police attempted to intercept the Holden Caprice because it was recognised as a stolen vehicle. Blue lights and the siren of the intercepting police vehicle were activated and in consequence the appellant initially slowed the vehicle, but then accelerated away. He refused to stop and a high-speed police pursuit followed. This pursuit went through the suburbs of Victoria Park, Queens Park, Cannington and Beckenham. The appellant drove at speeds up to 140 kilometres per hour. Whilst being pursued, he sped through several traffic lights against the red light and travelled to the incorrect side of the roadway to evade police. He paid no attention to his sister, who yelled at him several times to stop the vehicle.

Police aborted the pursuit on Welshpool Road near William Street. The appellant continued to travel at speed and was travelling at a minimum of 115 kilometres per hour as he approached the intersection of Welshpool Road and Diamond Street, Beckenham. There, the appellant lost control of the motor vehicle. It went to the incorrect side of the roadway and collided with the kerb. It became airborne and struck a power pole restraining wire, then collided with a tree in the front garden of a house in William Street. The vehicle became wedged in the tree.

Nikkola Hayward suffered extensive injuries from which she died at the scene. Leanne Farmer was knocked unconscious and was bleeding from the head. Clinton Farmer was lying at the base of the tree and bleeding from his head. Ashley Farmer was also bleeding profusely. Each of these three suffered bodily injury and they were all admitted to hospital. The appellant and one remaining passenger ran from the scene to evade police. Later in the day, the appellant attended at the major crash investigation section, accompanied by legal representatives. He admitted to having driven the vehicle involved in the collision, but otherwise declined to be interviewed [27] - [30].

57 In The State of Western Australia v Garlett [2007] WASCA 274, the offender entered early pleas of guilty to one count of causing grievous bodily harm, contrary to s 297 of the Code, and one count of manslaughter, contrary to s 280 of the Code. He was sentenced to 2 years 8 months' imprisonment for the offence of causing grievous bodily harm and 6 years' imprisonment for the offence of manslaughter. The sentences were ordered to be served concurrently, resulting in a total effective sentence of 6 years' imprisonment. A parole eligibility order was made.

58 The material facts, as found by the sentencing judge, were set out in the reasons of McLure JA (Steytler P agreeing & Wheeler JA relevantly agreeing):

At about 5 pm on 6 November 2005 the deceased, the complainant, Mrs Belinda Dimer and a number of young people were travelling along Butterworth Avenue, Koondoola in a Ford Falcon. The occupants of the Ford Falcon saw a group of five females ranging from 12 to 24 years of age from the Yates family walking along Butterworth Avenue. There was a history of animosity between the Yates and Dimer families. As the vehicle passed the five females, abuse was exchanged. Mrs Dimer, who was driving the Ford Falcon, stopped the vehicle in a driveway and got out. One of the Yates group threw a rock at the Ford Falcon and other members of the group also picked up rocks from a nearby garden bed. The deceased got into the driver's seat of the Ford Falcon and drove it further down Butterworth Avenue. He stopped the vehicle and the deceased, the complainant and another youth removed weapons from its boot. The deceased had a silver baseball bat, the complainant a samurai sword and the youth was also armed.

The deceased and the complainant walked towards members of the Yates group who by that stage were close to the T-junction of Butterworth Avenue and Burlinson Crescent. When the Yates group saw the armed men they ran along Burlinson Crescent towards the respondent's home in Burlinson Crescent. The respondent was a close friend of the Yates family.

At this time Mrs Dimer went back to the Ford Falcon and drove it around the corner of Butterworth Avenue into Burlinson Crescent and parked it. The three armed men (the deceased, the complainant and the youth) returned to the vehicle. The complainant stood near the passenger side and the deceased stood behind the vehicle.

The respondent had been alerted to the situation and considered the Yates group to be at risk. He got into his Holden Commodore sedan and drove along Burlinson Crescent towards Butterworth Avenue. There was varying evidence as to the speed at which he was travelling, however the sentencing judge concluded that a speed of about 50 kms to 60 kms per hour was most likely to be correct. The respondent drove his vehicle onto the wrong side of Burlinson Crescent, mounted the southern kerb in front of the Ford Falcon and travelled towards the position where the complainant was standing. The respondent's vehicle collided with the complainant, flinging him over its bonnet and causing him to break his right leg. Mrs Dimer moved the Ford Falcon to face towards Butterworth Avenue but it was still on the southern side of Burlinson Crescent. The respondent then drove off the verge and executed a right-hand U-turn in the T-junction. The respondent headed west back down Burlinson Crescent and drove across the southern kerb through a pedestrian handrail behind which the deceased was standing. The deceased was flung into the air and landed heavily on the bitumen near the front driver's side of the Ford Falcon. The respondent continued driving and clipped the passenger side of the Ford Falcon as he passed it. He drove to his residence where he collected the Yates group and drove them home. The respondent then drove to the Mirrabooka Police Station and informed police of the events.

The deceased was taken from the scene to a nearby house where he died as a result of a fracture of the left side of his skull.

There was a dispute between the parties concerning the respondent's intention. The State contended that the respondent intended to hit and harm the complainant and the deceased albeit without intending to do either grievous bodily harm. The respondent's position was that he did not intend to hit and harm the victims but that he acted with gross recklessness. After the sentencing judge indicated that in either event the offences were at the high end of the scale of seriousness, the parties accepted that there was no need for a trial of the issue. Accordingly, the sentencing judge made no factual finding as to the respondent's intent. In those circumstances, the respondent could only be sentenced on the basis that he acted with gross recklessness [9] - [14].

59 The State appealed to this court. It contended that the total effective sentence breached the totality principle as a result of the sentencing judge's failure to make the sentences wholly cumulative. The appeal was dismissed. McLure JA said:

The central question is whether a total sentence of 6 years is too low having regard to the total criminality of the respondent's offending as a whole and his personal circumstances. The motivation underlying the offences was mitigatory. The respondent was seeking to protect the Yates group from people (including the complainant and the deceased) who had armed themselves. Although that cannot justify the gross recklessness with which he acted, it ameliorates to some extent the culpability of his conduct. Having regard to the circumstances of the offending, the respondent's antecedents, his early guilty pleas and other mitigating factors, I was not persuaded that the total sentence was disproportionate to the extent necessary to permit the State appeal to be upheld [23].

60 When this court decided Garlett, the common law principles applicable to State appeals against sentence, including the double jeopardy rule, applied.

61 In Gibbs, the offender was convicted, on his fast-track pleas of guilty, on two counts of dangerous driving occasioning death in circumstances of aggravation, contrary to s 59(1)(b) of the RTA. The material facts were summarised in the reasons of Steytler P (McLure JA relevantly agreeing):

The two offences arose out of a motor vehicle collision on 10 May 2007. The collision occurred on a stretch of the Tonkin Highway in Ascot. That stretch of the highway is subject to a 100 km per hour speed limit. At the time, the respondent was driving his car at a speed of between 153 and 161 km per hour. The highway has two lanes travelling in a northerly direction. Mr Gerald Vance was riding his motorcycle in the left lane. His wife, Ms Yoke Vance, was a passenger on the motorcycle. Mr Vance indicated his intention to move into the right lane. He did so. The respondent was then in the right lane. He was also travelling in a northerly direction. Because he was travelling so fast he was unable to avoid driving into the back of the motorcycle. Mr Vance did not appreciate, and could not reasonably have been expected to appreciate, how fast the respondent was driving. The impact of the collision was so severe that the motorcycle became embedded in the left front of the respondent's car, in an upright position. Mr and Mrs Vance were killed.

The respondent stopped immediately after the collision. He remained at the scene and rendered what assistance he could. He was obviously distraught at what had happened. He remained so for a considerable period after the day of the accident [2] - [3].

62 The offender in Gibbs was aged 28 years at the time of sentencing. He developed post-traumatic stress disorder as a result of the accident and this progressed to severe depression. His marriage broke down irretrievably after the accident. Also, he lost his business, which had been doing well at the time of the accident. Shortly before being sentenced, the offender developed a new relationship with a woman who was expecting his first child. He supported his new partner's two young children from a previous relationship. There were favourable references provided in respect of him.

63 The sentencing judge imposed a term of 3 years' imprisonment on each count. The sentence on count 2 was ordered to commence 18 months after the commencement of the sentence on count 1. The result was a total effective sentence of 4 years 6 months' imprisonment. A parole eligibility order was made. That sentence was ordered to be served cumulatively on a sentence already being served by the offender for post-accident drug-related and other offences in respect of which a total effective sentence of 12 months' imprisonment, with eligibility for parole, had been imposed.

64 The State appealed against the sentences imposed in Gibbs for the two counts of aggravated dangerous driving occasioning death. The common law principles applicable to State appeals against sentence, including the double jeopardy rule, applied. A majority of the court (Steytler P & McLure JA, Miller JA dissenting) dismissed the appeal against the sentences of imprisonment. Steytler P held that the sentences, viewed individually or in total, could not be said to be so manifestly inadequate as to justify intervention on a State appeal [72].

65 In Butler, the offender pleaded guilty, at the earliest opportunity, to one count of dangerous driving occasioning death in circumstances where he was driving under the influence of alcohol to such an extent as to be incapable of having proper control of the vehicle, contrary to s 59(1)(a) of the RTA, and one count of dangerous driving occasioning bodily harm, contrary to s 59A(1)(a) of the RTA. He was sentenced on the first count to 2 years 10 months' imprisonment and on the second count to 10 months' imprisonment. The terms were made cumulative. The total effective sentence was therefore 3 years 8 months' imprisonment. A parole eligibility order was made.

66 The prosecution's statement of facts, which the offender accepted, was as follows:

At approximately 12.51 pm on Friday, 18 April 2008, the offender was driving his red Commodore registration number 1COI-532, in a westerly direction along Berehaven Avenue, Thornlie. The offender was speeding. In that area, Berehaven Avenue is a single carriageway sealed road in a good state of repair that runs predominantly in a south-west, north-eastern direction. There is no line marking the centre of the road.

Berehaven Avenue is in a residential area, and the speed limit is 50 kilometres per hour. The day was overcast, but visibility was good and the road was dry. Ahead of the offender, travelling in the same direction, were two vehicles. The first of the two vehicles, a yellow Hyundai Elantra, had slowed down with the driver signalling her intention to turn right into Pryor Street.

As he approached the two vehicles, the offender accelerated heavily and moved onto the incorrect side of the road to overtake the two vehicles in front of him. The driver of the yellow Hyundai had started to turn right into Pryor Street. The front left side of the offender's Commodore collided heavily with the front right of the Hyundai.

The offender's vehicle then speared off towards the north-[w]est corner of the intersection. The Commodore then mounted the curb, became airborne, and travelled over the front yard and garden bed of the house situated at 145 Berehaven Avenue. The Commodore landed on the grass between a garden bed and driveway of that house and continued in a north-westerly direction.

At that time, Mrs Tania Moorby, who resided at 145 Berehaven Avenue with her husband Jamie Moorby and their 11-month-old daughter, Grace, was just returning from the shops on foot with Grace secured in her pram by a harness. Following a brief stop at the letterbox to collect the mail, Mrs Moorby began pushing the pram up the driveway towards the house, when she and the pram containing Grace were hit by the Commodore driven by the offender.

The Commodore then went through the brick wall separating 145 Berehaven from 147 Berehaven Avenue, which showered debris across the front garden and onto the roof of the house at 147 Berehaven Avenue. The Commodore then collided with the front porch area of that house, causing extensive structural damage.

As a result of the collision, Mrs Moorby was thrown into the air and she came to rest in the front garden of 147 Berehaven Avenue. She sustained broken ribs and abrasions. Gracy Moorby came to rest in the front porch area of 147 Berehaven Avenue. Grace sustained severe injuries, including head injuries, and died at the scene.

Several minutes after the collision, the offender left the scene on foot. He was pursued by members of the public. Some of them caught up with the offender about 400 metres away in Elvington Way. One man was talking to the offender and had persuaded him to return to the scene when a police officer arrived.

The offender was taken to Cannington Police Station where a breath analysis test was administered. The test gave a reading of 0.181 grams of alcohol per 210 litres of breath, which was calculated to have been 0.166 grams of alcohol per 210 litres of breath at the time of the collision. When given the breath test, the offender said that he had had his last drink containing alcohol early that morning, probably at 2 or 3 am [2].

67 Wheeler JA (Pullin JA relevantly agreeing) noted three matters in amplification of the statement of facts:

The first is that, so far as the respondent leaving the scene was concerned, he was not charged with either failing to stop or failing to render assistance. The statements of witnesses make it clear that after the collision, he climbed out of the window of his vehicle, being unable to exit through the door, and moved briefly around the scene. It seems to have become apparent to him at a fairly early stage that he had killed or injured a baby or small child, and his reaction appeared to be one of shock. Initially, he did as directed by people at the scene, moving to one side and remaining there. It is not clear when he began to move away from the scene, but his counsel submitted that at some point, while still in a dazed state himself, he had felt threatened by the understandable distress and anger of those who came to the scene to assist.

So far as the time of last drink is concerned, the police officer who recorded the respondent's response to the question about the time of his last drink had noted that he had said, in effect, '[n]o idea what time ... early this morning ... not sure, probably about 2 or 3 this morning'. That may be of significance, since the accuracy of the calculation of blood alcohol level is, of course, dependent on the time of last drink. There was no evidence before his Honour, or before us, of whether the calculation might have been higher or lower, depending upon whether the time of last drink was in fact earlier or later than the respondent had indicated.

Finally, the respondent's counsel explained in some detail the circumstances which led to the respondent's high blood alcohol level. He was, at the time, working shiftwork on a mine site, on a fly-in, fly-out basis. He had been studying minerals engineering and had previously been studying and working in Kalgoorlie. While in Kalgoorlie, he had been in a de facto relationship with a woman with two children. That relationship had lasted approximately four years and he had become depressed when it ended. It seems that at about that time his social life in Kalgoorlie revolved, or began to revolve, heavily around alcohol. During his fly-in, fly-out work, he would drink heavily in a bingeing pattern when off work. On the Wednesday prior to the incident, he estimated that he had consumed about a bottle and half of scotch at his parents' residence. On the following night, which was the night preceding the incident, he went to a house in Rockingham with his girlfriend and consumed a very considerable quantity of pre-mixed spirits. He returned to his home after socialising and went to bed at about 3 or 4 am. He woke later that morning, at approximately 9 am, feeling 'seedy and hungover'. He decided, at some stage, to go to the local shopping centre in order to take some money out of an ATM. As the statement of facts indicated, it was nearly 1 in the afternoon when this incident occurred, at which time the respondent's best guess seems to be that he had ceased drinking somewhere between 10 and 11 hours previously [3] - [5].

68 In Butler, the State appealed against sentence. The common law principles applicable to State appeals against sentence, including the double jeopardy rule, had been repealed by the Criminal Law and Evidence Amendment Act 2008 (WA), which inserted s 41(4)(b) into the Criminal Appeals Act 2004 (WA). Those principles did not apply to the appeal. A majority of the court (Wheeler & Pullin JJA, Miller JA dissenting) dismissed the appeal.

(b) there was also bodily harm caused to the baby's mother;

(c) the offender drove when, on his account, he was feeling 'seedy'; and

(d) the offender engaged in what any sober person would have realised was a plainly dangerous manoeuvre,

the total effective sentence of 3 years 8 months' imprisonment may be regarded as 'towards the lower end of an appropriate range of sentences for offences of this kind' [23]. Her Honour added that it might, indeed, be characterised as 'lenient' [23]. She went on, however, to say:

[T]he respondent is a relatively young man. He is of otherwise good character and there is no history of deliberate defiance of the law, or of disregard of the road traffic rules generally. He has recognised and taken steps to address the alcohol problem which ultimately led to his offending. All those who know him well or have prepared reports for the court appear to accept that he feels genuine grief and remorse about his offending. I am sure that, as Mrs Tania Moorby pointed out in her oral victim impact statement, unless and until he has a child of his own, he will not really even begin to appreciate the effect which his offending has had on the parents of the deceased Grace Moorby. However, even so, it must be accepted that it can be no easy thing for a young man of otherwise good character to live with the knowledge that he has killed a tiny child and shattered the lives of the child's family. There is no reason to doubt the assertions that he has nightmares about these events, and cannot go for long without thinking of them. I accept, as did the learned sentencing judge, that he was genuinely remorseful [24].

70 In conclusion, Wheeler JA said that she was not persuaded that the sentencing judge had erred in imposing an aggregate sentence that was 'plainly towards the low end of the range of sentences appropriate to offending of this kind' [25].

The merits of ground 1: the objective seriousness of the offending

71 The trial judge carefully considered the objective seriousness of the appellant's criminal conduct. He identified several features; in particular:

(a) The appellant deliberately drove his vehicle with three young passengers at a speed in excess of 171 km an hour on an unlit country road. He demonstrated a selfish disregard for the safety of his passengers. His Honour characterised the appellant's conduct as an 'outrageously bad and dangerous piece of driving' (ts 5) and 'a wholly dangerous and callous piece of driving where, almost inevitably, disaster was going to occur' (ts 12).

(b) The appellant intended to test the limits of the vehicle's performance and his driving at a grossly excessive speed was premeditated and intentional (ts 5).

(c) Very shortly before the accident, the appellant refused to comply with a request from Ms Anderson to slow down (ts 5).

(d) The appellant's conduct has had a devastating effect on the family of the passenger who died and on the passenger who suffered grievous bodily harm (ts 5 - 6).

(e) The appellant lied to the police about his speed in an interview after the accident, he pleaded not guilty, and he maintained his denials of culpability to the author of his pre-sentence report (ts 8). His Honour noted, correctly, that these were not, either individually or in combination, aggravating factors, but they did reveal a refusal to acknowledge and accept responsibility for his conduct.

(f) Although the appellant was not to be punished for his conduct on the night before the accident in driving, with passengers including Mr Brown, at a speed of about 190 km - 200 km an hour on another unlit country road, Mr Brown's evidence about this incident, and Mr Leaman's evidence about his conversation with the appellant on the afternoon of the day of the accident, were relevant to culpability (ts 5).

72 The trial judge had before him victim impact statements from Mr Press and from Coralie Ewers, the mother of Ms Morrison. Mr Press said that he is now unemployed and always in pain. He continues to suffer from grief at the loss of Ms Morrison. He has nightmares and is nervous when travelling in a motor vehicle.

73 The evidence of Mr Leaman and Mr Brown underscored the calculated and premeditated nature of the appellant's driving which culminated in Ms Morrison's death and Mr Press's grievous bodily harm, and negatived any suggestion that his behaviour was impulsive or out of character.

The merits of ground 1: the personal circumstances of the appellant

74 The dominant sentencing considerations in a case of this kind are general and personal deterrence and punishment of the offender. The personal circumstances of the offender are, however, of relevance, especially with a young offender. The appellant was aged 21 years at the time of offending and 22 years when he was sentenced.

75 The trial judge gave careful consideration to personal and mitigating factors advanced on the appellant's behalf. His Honour referred, specifically, to the following:

(a) The appellant made some admissions which shortened the trial and avoided the need for some witnesses, who may have been distressed, to give evidence (ts 8).

(b) The appellant was a young man with close family ties and a continuous work history after completing an apprenticeship in bricklaying (ts 6 - 7).

(c) The appellant had expressed some contrition to the author of the pre-sentence report (ts 9).

76 Also, on the date of his conviction the appellant, through his counsel, handed up a letter in which the appellant apologised to the families of Ms Morrison and Mr Press.

77 It was not suggested that the appellant was affected by alcohol or drugs. He was not racing another road user and was not involved in a police pursuit. There was no evidence that there were any other road users in the vicinity of the appellant's vehicle while it was being driven dangerously.

78 The appellant broke his collar bone while endeavouring to free his passengers from the vehicle after the accident.

79 The trial judge referred to the appellant having 'struggled to come to terms with what [he had] done' (ts 7). This was evidently a reference to submissions by the appellant's counsel that since the accident the appellant had struggled with nightmares, anxiety attacks and depression, which culminated in a suicide attempt.

80 The appellant had a prior criminal record, but the nature of the offences was not significant. They comprised three convictions for stealing a motor vehicle, two convictions for minor offences of stealing, a conviction for trespass, and minor traffic or vehicle-related infringements.

81 The individual sentence imposed for count 1 was, without doubt, severe.

82 The severity of the individual sentence for count 1 is attributable, in part, to the appellant's decision to plead not guilty (which is not, of course, an aggravating factor) and his ongoing denials of culpability.

83 Fast-track pleas of guilty, and pleas of guilty at the first opportunity, in this State ordinarily attract a reduction in sentence of somewhere between 20% and 35%, depending on the circumstances. See H v The State of Western Australia [2006] WASCA 53; (2006) 163 A Crim R 151 [9] (Steytler P); Moody v French [2008] WASCA 67; (2008) 36 WAR 393 [37] (Steytler P, Wheeler, McLure & Buss JJA). As pointed out in Moody, in a particular case the reduction might be less (where, for example, there is a late plea and an absence of any real remorse) or more [37]. See also Royer v The State of Western Australia [2009] WASCA 139 [147] (Buss JA).

84 The appellant was represented at trial by an experienced criminal defence lawyer.

85 If the appellant had pleaded guilty on the fast-track system and had shown real contrition, he would have received an individual sentence on count 1 of about 3 years 9 months to 4 years' imprisonment.

86 The severity of the individual sentence for count 1 is also attributable, in part, to the calculated, premeditated and deliberate nature of the appellant's conduct. It was not impulsive or out of character.

87 As I have mentioned, 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. This is demonstrated by my review of the cases which are relevant to the customary standards of sentencing for these types of offences. Each case is distinguishable from the present case. For example:

(a) Penny was an especially bad case and the offender had dreadful antecedents, although he did enter early pleas of guilty.

(b) In Farmer, the offender (unlike the present appellant) pleaded guilty at the earliest opportunity.

(c) Garlett was a State appeal against sentence in which the common law principles applicable to State appeals, including the double jeopardy rule, applied. Also, the offender entered early pleas of guilty.

(d) In Gibbs, the offender (unlike the present appellant) entered fast-track pleas of guilty. He demonstrated real contrition and his personal and business circumstances and his mental health deteriorated significantly after (and in the case of his mental health) as a result of the accident. Also, Gibbs was a State appeal against sentence in which the common law principles applicable to State appeals, including the double jeopardy rule, applied.

(e) In Butler, the offender (unlike the present appellant) pleaded guilty at the earliest opportunity. Also, the court characterised the sentencing disposition in Butler as 'plainly towards the low end of the range of sentences appropriate to offending of this kind' [25] (Wheeler JA). It was also observed that the sentencing disposition in that case might, indeed, be characterised as 'lenient' [23] (Wheeler JA).

88 As I have mentioned, this court emphasised recently in Taylor (Miller JA, Owen & Wheeler JJA agreeing) that sentences in 'motor vehicle manslaughter cases' must reflect the value placed upon human life by the legislature, and that they have not in the past always done so [46].

89 Although the individual sentence for count 1 was severe, especially in the context of the appellant's youth and reasonable antecedents, I am not persuaded that, on the facts and circumstances of the case as a whole, the trial judge's exercise of discretion miscarried. If I had been sentencing the appellant I may have been inclined to impose a less severe sentence for count 1, but that is not, of course, a proper basis for appellate intervention. An appellate court may not substitute its own opinion for that of the sentencing judge merely because it would have exercised the sentencing discretion in a different manner. See Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 [15]. In the present case, the trial judge had the advantage of hearing and evaluating all of the evidence as it emerged at the trial. He gave careful attention, in the sentencing process, to the facts as he had found them, to the submissions advanced on behalf of the appellant and to the other materials before him that were relevant to the sentencing outcome.

90 On my examination of the individual sentence imposed for count 1, from the perspective of the maximum available penalty, the customary standards of sentencing, the objective seriousness of the offending, and the appellant's personal circumstances, it is not plainly apparent to me that the sentence was unreasonable or unjust.

92 In Longbottom v The State of Western Australia [2008] WASCA 203; (2008) 51 MVR 224, Steytler P considered the application of the totality principle in the case of an offender who was convicted, after a trial, of two counts of dangerous driving causing death. After drinking alcohol, and notwithstanding that his driver's licence had been disqualified, the offender drove his vehicle, with three passengers in it, at a speed that was excessive in the circumstances. Despite one of his passengers asking him, twice, to slow down, he did not do so. He lost control of the vehicle and there was an accident. Two of his passengers died. The offender's blood alcohol level at the time of the accident was 0.089%. The sentencing judge imposed a term of immediate imprisonment of 1 year 8 months in respect of each count and ordered that the sentences be served cumulatively. The total effective sentence was therefore 3 years 4 months' imprisonment. It should be noted, however, that the maximum available penalty for each of the offences for which the offender was sentenced was only 4 years' imprisonment.

93 The offender appealed on the ground that the order for total accumulation was an error because it necessarily had the result that he was punished twice for the commission of common elements of each offence (the dangerous driving arising out of the appellant having driven at an excessive speed and with a blood alcohol level in excess of the statutory limit). This court (Steytler P, Wheeler & Miller JJA) unanimously dismissed the appeal.

The issue of sentencing for common elements of multiple offences was explored in Eves v The State of Western Australia [2008] WASCA 7; (2008) 49 MVR 259. I remain of the opinion, there expressed, that there are two applicable principles in a case such as the present. The first is that there is no requirement that wholly concurrent terms be imposed for multiple offences constituting one transaction or a continuing episode: R v Faithfull [2004] WASCA 39; (2004) 142 A Crim R 554 [28] and the cases there referred to. The second is the more pertinent (for present purposes) principle identified in Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 [40] that, to the extent to which an offender stands convicted of offences containing common elements, it would be wrong to punish that offender twice for the commission of elements that are common. That principle has since been affirmed in Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616 [27], [34] and [38]. This second principle seems to me to have the inevitable consequence that it is unsound in principle to impose a sentence that fully addresses each element of the offence on each count and then wholly aggregate the sentences so imposed.

The preferable approach, when sentencing for multiple offences, is to consider, first, what sentence is appropriate for each offence in the circumstances of the case and then to ensure, by adjusting the total sentence to the extent necessary (if at all), that the total sentence fairly and justly reflects the total criminality of the appellant's conduct and is not crushing: Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295, 307 - 308; Martino v The State of Western Australia [2006] WASCA 78 [16]. When adopting that approach in a case in which there are elements that are common to each offence, the commonality of these elements seems to me to be best recognised, ordinarily, by orders for partial concurrency of the sentences imposed. That way, the individual sentences will be adequate to reflect the gravity of each offence: s 6(1) of the Sentencing Act 1995 (WA).

On one view, this approach might be thought to be inconsistent with the holding in Pearce. In that case sentences had been imposed in respect of two different offences, one of inflicting grievous bodily harm with intent and one of breaking and entering a dwelling and inflicting grievous bodily harm in the dwelling. In each case the victim, and the grievous bodily harm inflicted on him, was the same. The sentence imposed on each offence was said by the High Court to have fully punished the appellant for his infliction of grievous bodily harm on the victim. The court held that the offender was punished twice for that common element notwithstanding that the two sentences had been ordered to be served concurrently. However, that situation might be thought to be distinguishable from one in which there is separate harm to each of two victims brought about by the same criminal conduct to which each was subjected. Whatever may be the position in that respect, the approach that I consider to be preferable seems to me to be open on the later High Court authority of Johnson, in which there were two drug offences involving a number of common elements. In that case, the court considered that the commonality required that 'careful regard be had ... to the totality principle' [33].

The approach of imposing partially concurrent sentences has been applied in a number of cases, decided since Pearce, involving one instance of dangerous driving that causes death or grievous bodily harm to multiple victims: see, for example, R v Plumb [2003] NSWCCA 359 (citing a number of other like cases in which concurrent, or partly concurrent sentences were imposed); R v Skrill [2002] NSWCCA 484; (2002) 38 MVR 175; R v Price [2004] NSWCCA 186; R v Janceski [2005] NSWCCA 288; (2005) 44 MVR 328; R v Guariglia [2001] VSCA 27; (2001) 33 MVR 543; Director of Public Prosecutions (Vic) v Solomon [2002] VSCA 106; (2002) 36 MVR 425; (and see also K Warner, 'Sentencing Review 2003 - 2004: Part II' (2005) 29 Crim LJ 46, 53 - 54).

However, there is no inflexible rule requiring an order for partial concurrency in a case of the present kind and nor is there anything in either of the majority judgments in Eves that suggests otherwise [5] - [9].

95 Wheeler JA made these observations in relation to totality and dangerous driving causing death:

Where there are multiple offences of dangerous driving causing death or grievous bodily harm arising from one course of driving, the court in considering the totality question must take account of two important considerations. One is that there has been only one act, or one incident. The second is, however, that there has been more than one death or injury, and that the fact of death or injury is considered by the legislature to be a matter of great significance in fixing the appropriate penalty.

The importance attached to the fact of death emerges from a comparison of the penalties fixed for dangerous driving in circumstances where death or injury does not result (at the time of this offence, a fine only for a first offender), the penalty fixed where the driving is wilfully dangerous, but no death results, (being at the time of this offence, no more than 9 months' imprisonment for a first offender) and the penalty fixed where death or grievous bodily harm results from dangerous driving (being at the time of this offence, 18 months on summary conviction, 4 years on indictment, and 20 years where there is both a death and a circumstance of aggravation). Although the offender's manner of driving is of significance in fixing an appropriate sentence, then, the legislative indication is that the consequences of the driving are of very great importance, and so, in cases where more than one person is killed or injured, a very significant degree of accumulation may often be appropriate.

In practical terms, there are substantial similarities between the approach I prefer and that identified as an available alternative in Eves (at [29]). It may well be right to say, as a broad proposition, that it will rarely be appropriate for wholly cumulative sentences to be imposed in respect of one incident of dangerous driving resulting in more than one death, assuming that the sentences which are accumulated are themselves proportionate to the conduct the subject of each offence. However, having regard to the weight apparently placed by the legislature on the consequences, rather than on the conduct, I would not be prepared to hold that, as a matter of totality, a case of wilfully dangerous driving resulting in more than one death could not be marked by sentences which are fixed, independently, as appropriate to the seriousness of each offence, and then made wholly cumulative [58] - [60].

96 Miller JA referred to Eves and then expressed these views in relation to sentencing for dangerous driving that causes death or grievous bodily harm to multiple victims [93] - [95]:

In my judgment [in Eves], I referred to a number of authorities in other States. They included R v Plumb [2003] NSWCCA 359, R v Skrill [2002] NSWCCA 484; (2002) 38 MVR 175, Kennewell v Rand [2006] ACTCA 10 and R v Penn (1994) 19 MVR 367. Those cases essentially establish that where more than one passenger is killed or injured in a motor vehicle accident by the same act of criminality, any reference to 'a single discrete episode of criminality' is of little assistance, if any. There must be circumstances where concurrent sentences would not be adequate to address the criminality of the offender's behaviour and in such cases the sentences, or part of them, may be accumulated. There is no rule or principle that in cases of that kind the sentences should be concurrent. All of this is consistent with Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610.

It seems to me that the real question is whether the total criminality involved in the appellant's conduct required either total or partial cumulation of sentences for the individual counts to reflect that degree of criminality. The respondent contends that the decision of the majority in Eves does not preclude either partial or total cumulation of sentences in these circumstances. It is certainly correct that the majority decision does not preclude partial cumulation, but McLure JA did express the view [30] that it is unsound in principle to wholly cumulate the sentences in those circumstances. Steytler P said that it is wrong to punish an offender twice for the commission of common elements in a case of this kind, but fell short of actually saying that there could be no circumstances in which total cumulation was appropriate.

It seems to me that the trend of authority (see the cases to which I have referred above at [93]) is to the effect that there may need to be partial or even total cumulation of sentences in cases of this nature if concurrent sentences would be inadequate to address the criminality of the offender's behaviour. As Wood CJ at CL (with whom Smart AJ agreed) said in R v Plumb:

'I am not persuaded in the present case, having regard to the very serious injuries inflicted on the two victims, that some degree of accumulation was not called for. Otherwise it is difficult to see how the overall objective criminality could be accommodated within the confines of Pearce [21]'.

97 In my opinion, Longbottom is authority for the proposition that a sentencing judge will not necessarily make an error, in the application of the totality principle or otherwise, by ordering that individual sentences for multiple counts of dangerous driving occasioning death, which arise out of one transaction or continuing episode, be served wholly cumulatively. Plainly, whether in such a case the individual sentences should be ordered to be served wholly cumulatively, partly cumulatively or concurrently, or wholly concurrently will depend on the particular facts and circumstances.

98 The critical issue in relation to ground 2 is whether the total effective sentence of 7 years' imprisonment infringes the first limb of the totality principle on the ground that it does not bear a proper relationship to the overall criminality involved in both offences, viewed in their entirety, and having regard to all of the circumstances of the case, including those referable to the appellant personally.

99 As I have mentioned, in the context of ground 1, the individual sentence for count 1 was severe, but within the limits of a sound exercise of sentencing discretion. Ground 2 must be viewed against, amongst other things, my conclusion as to the severity of the individual sentence for count 1.

100 In the end, I am persuaded that the total effective sentence of 7 years' imprisonment does not bear a proper relationship to the overall criminality involved in both offences, viewed together, and having regard to all the relevant circumstances. It was not reasonably open to the trial judge to order that the sentence for count 2 be served wholly cumulatively on the sentence for count 1.

101 The appellant was aged 21 years when he committed the offences and was aged 22 years at the time of sentencing. Although he had a criminal record, it was not substantial and did not contain any other offence of the nature in issue in these proceedings. His driver's licence had never been suspended or cancelled and he had not previously been sentenced to a term of imprisonment. The accident had a physical and mental impact on the appellant.

102 Although the objective features of the offending were very serious (in particular, the calculated, premeditated and deliberate nature of his criminal conduct) and the appellant was not entitled to the substantial discount that is ordinarily given for a fast-track plea of guilty or a plea of guilty at the first opportunity, I am of the opinion that the total criminality of the offending would be properly marked, and all relevant sentencing principles would be satisfied, by a total effective sentence of 6 years' immediate imprisonment. This result should be achieved by ordering that 6 months of the term of imprisonment for count 2 be served before the 5 years 6 months' term of imprisonment for count 1 begins.

104 The trial judge's order for cumulation should be set aside, and instead it should be ordered that 6 months of the term of imprisonment for count 2 is to be served before the term of imprisonment for count 1 begins. The total effective sentence will therefore be 6 years' imprisonment. The term of imprisonment for count 2 is to commence on 24 July 2009, being the date on which the appellant was taken into custody for these offences. The parole eligibility order should not be disturbed. The appellant will be eligible for release on parole upon having served 4 years' imprisonment calculated from 24 July 2009.