Court of Appeal (WA)|2006-02-16|Before: Smith JA

Duff v The State of Western Australia [2006] WASCA 37 (16 February 2006)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : DUFF -v- THE STATE OF WESTERN AUSTRALIA [2006] WASCA 37

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law and procedure - Appeal - Sentencing - Leave to appeal - Manslaughter by driving - One count of causing grievous bodily harm by driving - One act of driving - Cumulative sentences - Whether error - Whether undue emphasis on aggravating features - Disqualification for life - Whether sentences and disqualification manifestly excessive - Whether grounds have reasonable prospect of succeeding - Leave to appeal refused - Appeal dismissed pursuant to r 43(2)(g)(i) Supreme Court (Court of Appeal) Rules 2005

Appeal dismissed pursuant to r 43(2)(g)(i) Supreme Court (Court of Appeal) Rules 2005

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

LJM v The State of Western Australia [2005] WASCA 172

Mill v The Queen (1988) 166 CLR 59

Punch v The Queen (1993) 9 WAR 486

R v Lippiatt, unreported; SCt of WA; Library No 980065; 17 February 1998

R v Peterson (1984) WAR 329

1 ROBERTS-SMITH JA: This is an application for leave to appeal against sentence. There was also an application filed on 23 December 2005 for an order that the Western Australian Police Service, through the respondent, provide to the applicant within seven days the material facts, including the date of the actual offence, of each of the following three speeding convictions:

(1) 3 September 2001, conviction in Harvey Magistrates Court for exceeding the speed limit by over 30 - 40 kilometres per hour;

(2) 21 May 2001, conviction in Fremantle Magistrates Court regarding driving at 130 kilometres per hour in a 110 kilometres per hour zone;

(3) 18 June 2003, conviction in Fremantle Magistrates Court regarding travelling at 125 kilometres per hour in a 110 kilometres per hour zone.

2 Following trial in the District Court at Perth before her Honour Yeats DCJ and a jury, the applicant was convicted of one count of motor vehicle manslaughter and one count of causing grievous bodily harm, on 17 October 2000. On 18 February 2005 her Honour sentenced the applicant to 4 years' imprisonment on count 1 and 2 years' imprisonment on count 2. She ordered the second sentence be served cumulatively, making a total of 6 years' imprisonment. The applicant was made eligible for parole.

3 At that time no one raised for her Honour's consideration the issue of licence disqualification. That omission was subsequently recognised by the State prosecutor who asked that the matter be brought back before her Honour that morning. That was done and after hearing submissions her Honour imposed a disqualification for life in respect of count 1 and a disqualification for 10 years in respect of count 2.

4 The appeal notice was filed 12 May 2005, together with an application for extension of time. On 29 August 2005 an affidavit of Simon Barry Watters was filed, in support of the application for extension of time. Mr Watters deposes the applicant was approximately one month out of time. However, the court file shows the appeal notice and application for extension were filed on 12 May 2005. As the last date for instituting his appeal was 11 March 2005, the applicant was in fact two months out of time. There was further delay after that. The Appellant's Case was not filed until 13 October 2005.

5 Having read that, I directed pursuant to r 7(1)(d) of the Supreme Court (Court of Appeal) Rules 2005 (WA), that the application for leave to appeal be heard ex parte before me, and pursuant to r 7(1)(f) that the time for the applicant to make oral submissions be limited to 15 minutes.

6 There are four grounds of appeal. They are, first, that her Honour erred when she ordered the two sentences be cumulative and not concurrent, or at least partly concurrent; secondly, that she erred when in sentencing the applicant, she placed undue emphasis upon aggravating factors vis-a-vis mitigating factors, contrary to s 6(2) of the Sentencing Act 1995 (WA).

7 The third ground of appeal is that her Honour's discretion miscarried when she determined to impose upon the applicant a life disqualification from holding or obtaining a motor driver's licence, concerning count 1 on the indictment. The fourth ground is that if the Court concludes that each of the grounds of appeal fail individually, the combination or aggregation of the defects identified in grounds 1 and 2 means there has been a substantial miscarriage of justice.

8 It can be said at the outset that ground 4 here is meaningless. If the other grounds fail individually then they could not operate in combination. If the errors asserted in the first three grounds are not found to be so there would be no "defects" to aggregate, nor is there any particularisation of how they are said to amount to a substantial miscarriage of justice.

9 True it is that on a conviction appeal an aggregate of errors, none of which if it were the only error would afford a justification for allowing an appeal, may properly lead to a conclusion there has been a substantial miscarriage of justice. That was the situation in R v Ireland [1970] HCA 21; (1970) 126 CLR 321. That proposition relates to appeals against conviction but there is no reason in principle why an aggregation of errors could not lead an appeal court to a conclusion that the exercise of a sentencing Judge's discretion miscarried so that a different sentence should have been imposed. However, the statutory question always remains whether a different sentence should have been imposed: s 31(4)(a) of the Criminal Appeals Act 2004 (WA). This ground has no reasonable prospect of success. I would accordingly refuse leave to appeal on ground 4.

10 These were unmistakeably very serious driving offences. From her Honour's sentencing remarks it is apparent that the applicant committed the offences on 17 October 2000 in Dianella at about 7.15 pm, when he was riding a motorcycle north on Grand Promenade Road in a direction away from the city. The deceased woman and her sister were walking in the same direction north along that road, on the footpath.

11 When they came across sprinklers spraying across the footpath and the verge they walked onto the edge of the roadway, which was a dual carriageway with two lanes going north. Her Honour made specific findings relevant to sentence. They included that she was satisfied beyond reasonable doubt that the sisters looked for oncoming traffic before stepping onto the roadway, but the applicant was driving his motorcycle at such a high speed, approximately 140 kilometres per hour in what was a 60 kilometre zone, that they did not see or hear him until he was upon them.

12 Her Honour found that there was a high level of amphetamines in the applicant's blood and the drugs affected his driving. That was so in two ways. He was feeling he could do anything and he took quite extraordinary risks in his manner of driving. The effects of the drugs included heightening both his blood pressure and pulse rate.

13 Her Honour was further satisfied that the applicant never saw the sisters. He never braked or deviated. He could have seen them in the beam of his headlight if he had looked. Her Honour found that on the evidence the applicant drove at 140 kilometres per hour directly between the two women, causing the death of the deceased, and very serious injury to her sister, Mrs Bryant. Even at the time of trial in February 2005, some 41/2 years after the accident, Ms Bryant was still suffering ongoing effects of her severe and serious injuries.

14 Ground 1 complains of error in relation to her Honour's order making the sentences cumulative rather than concurrent or partly concurrent. It is submitted that when a number of offences arise out of the one transaction or continuing episode, any terms of imprisonment for them are to be made concurrent, citing R v Ruane (1979) 1 A Crim R 284 and R v Brown (1982) 5 A Crim R 404 at 407.

15 Those authorities do not necessarily establish that proposition. It is always a matter for the exercise of the discretion of the sentencing Judge having regard to the facts and circumstances of the particular case. These are general guidelines of ordinary application where appropriate.

16 It is true that a sentencing Judge is required to review the total sentence to be imposed by reference to the principle of totality, including the question of whether the total sentence is crushing (R v Dickens [2004] WASCA 179; (2004) 147 A Crim R 343). However, the notion of a crushing sentence is not one which is apt to the sentences. either individually or in their aggregate, imposed here.

17 It is apparent from the transcript that her Honour was mindful of the principle of totality and that she accommodated it.

18 At t/s 539 her Honour referred to a number of authorities in relation to the sentencing of offenders for motor vehicle manslaughter and causing bodily harm. She recognised there were a number of factors which she had to take into account as showing the seriousness of the offence.

19 Primarily, as she put it, the very excessive speed, namely, 140 kilometres an hour in a 60 kilometre zone, was a speed more than twice the limit on a suburban street, which alone she considered made this a very serious case of motor vehicle manslaughter. Additionally the applicant's voluntary consumption of methylamphetamine or amphetamines affected his driving and added, in her Honour's view, to the seriousness of the offending.

20 She then addressed the question of cumulation. Having expressed herself satisfied that the level of recklessness displayed by the applicant while affected by amphetamines showed such a disregard for the lives and safety of others that a substantial period of immediate imprisonment was called for, she said that despite there being but one act of driving involved, because of the very serious injuries to Ms Bryant, she considered this a case where cumulative sentences of imprisonment should be imposed.

21 She referred to the decision of Court of Criminal Appeal in R v Kay [2004] WASCA 222; (2004) 147 A Crim R 401 and noted that, as the court held in that case, the sentences should reflect the gravity of the harm caused. In this case a woman had died and another had been very seriously injured.

22 At the top of t/s 540, her Honour expressly stated that the totality principle had to be borne in mind but in this case she was satisfied that the principal sentencing consideration must be personal and general deterrence.

23 The argument advanced on behalf of the applicant that her Honour merely "did the arithmetic and passed the sentence which the arithmetic produced" cannot be sustained, nor does the argument that her Honour had to impose concurrent or partly concurrent sentences have any reasonable prospect of success.

24 Had the sentence on count 2 been longer, there might have been such an argument, but the term imposed indicated clearly enough that her Honour acted in accordance with the sentencing principles applicable to multiple offences arising out of a single act of driving (see LJM v The State of Western Australia [2005] WASCA 172). Likewise, the manslaughter offence itself could appropriately have attracted a higher term of imprisonment than 4 years.

26 Ground 2: the submissions made in relation to this ground are in substance that s 6(2) of the Sentencing Act requires the court, in determining the seriousness of an offence, to take into account, inter alia, any aggravating factors and any mitigating factors. Section 7(2)(b) of that Act provides that an offence is not aggravated by the fact that the offender has a criminal record.

27 Her Honour viewed the issue of personal deterrence as having significant weight. Clearly she said so. She referred to the applicant continuing to exceed the speed limit in his driving since the time of these offences. She referred to traffic convictions of his post-dating the date of the offences, namely, 17 October 2000, as being an aggravating factor.

28 It is submitted that sentencing counsel for the respondent indicated those three separate convictions, all post-dating the offences for which the applicant was being sentenced, suggested that a deterrent penalty was required. The complaint then made is that her Honour failed to inform herself of the facts of those three speeding convictions. There are further submissions made as to particular observations made by her Honour, but it seems to me those to which I have referred are the gravamen of this ground.

29 Further, it seems to me that her Honour's approach in this case cannot be said to be in any way contrary to s 6(2) of the Sentencing Act. That section did not require her Honour to place greater weight on mitigating factors and less on aggravating factors. All the section does is state that a sentencing Judge must have regard to those factors, amongst other matters. That is what her Honour did. This ground has no reasonable prospect of success.

30 Conduct since these offences was generally relevant as part of the applicant's antecedents. What her Honour said had significant weight, was the fact of the convictions. Quite clearly her Honour could not have had regard to the circumstances of the facts underlying those convictions because she knew nothing about them. It is instructive to see what in fact transpired. That appears at t/s 522.

31 The prosecutor had referred her Honour to the applicant's record of convictions. It was noted that he was 31 years old and in the last three years had three separate convictions for exceeding the speed limit by 30-40 kilometres an hour. It was the submission of the State prosecutor that although those post-dated the offences before her Honour, they were in the general sense of antecedents and it was suggested that a deterrent penalty was required.

32 At that point her Honour specifically said that she had what was apparently a new copy of the applicant's record of convictions in front of her and specifically asked senior counsel for the applicant, Mr Dunn QC, whether he needed to take further instructions on it. Mr Dunn said he did not and specifically addressed them. He pointed out that the applicant was 31 at that stage and there were no convictions from 1993 to 1999, then in 1999 there was a demerit point suspension, then in 2001 a further demerit point suspension, and in the same year that first speeding conviction. In 2003 there was an exceeding the speed limit conviction in May and June, and then in September a demerit point suspension, and there were two other convictions in 2003. Mr Dunn said nothing further about those convictions but proceeded directly to address her Honour on other matters of mitigation.

33 Mr Watters submits this morning, that at that point where the convictions were raised with her, her Honour should have asked what the facts and circumstances were and that she fell into error by not doing so. That proposition is unsustainable. Her Honour could only act on what was before her and was entitled to rely on senior counsel for the applicant to put before her any matters which were appropriate by way of mitigation.

34 In respect of ground 3, it is submitted that s 105 of the Sentencing Act afforded her Honour the discretion of disqualifying the applicant from holding or obtaining a motor driver's licence for a term set by the Court. The only submission advanced is to refer first of all to her Honour's observations about the serious nature of the applicant's driving and to the decision in the case of R v Kay (supra) and seek to distinguish that case.

35 The submission is that in Kay a life disqualification following a conviction of, inter alia, dangerous driving causing death, of which there were two counts, was upheld on appeal on the basis the offences were in the worst category and with regard to the applicant's record of convictions, which included a previous conviction for dangerous driving causing bodily harm when his driver's licence was disqualified for 12 months.

36 The applicant seeks to distinguish that case on the basis the offences there were in the worst category. That may be so but those were offences of dangerous driving causing death. A lifetime disqualification was imposed by her Honour here on a very bad case of motor vehicle manslaughter. The applicant acknowledges the imposition of a licence disqualification was a matter of discretion. The principles in relation to the exercise of judicial discretion are well established (House v The King [1936] HCA 40; (1936) 55 CLR 499, Cranssen v The King [1936] HCA 42; (1936) 55 CLR 509). No specific error is identified. None is asserted.

37 It is not enough that a Court of Appeal might have exercised the discretion differently. What the applicant would have to show is that on no reasonable view could her Honour properly have imposed a disqualification for life. This ground has no reasonable prospect of success.

38 As none of the applicant's grounds has a reasonable prospect of succeeding, the appeal will be dismissed pursuant to r 43(2)(g)(i) of the Rules. In light of this conclusion, the application for an order for production of documents falls away and will be dismissed.

Court (Court of Appeal) Rules 2005

Duff v The State of Western Australia [2006] WASCA 37

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Duff v The State of Western Australia [2006] WASCA 37 (16 February 2006)

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