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[2011] WASC 190
Supreme Court of WA
2011-08-12
Mr J, Simmonds J
Original judgment source is linked above.
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION : EASTHOPE -v- WHITNEY [2011] WASC 190
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Criminal law and procedure - Appeal against sentence - Dangerous driving involved in incident occasioning two deaths - Whether error in fact made - Whether sentences manifestly excessive - Use of comparable cases - Whether contributions of victims to incident occasioning deaths relevant to sentencing - Sentencing for multiple deaths occasioned by same incident involving same dangerous driving - Whether total effective sentence disproportionate to total criminality
Road Traffic Act 1974 (WA), s 59, s 59B, s 64
Road Traffic Amendment (Dangerous Driving) Act 2004 (WA)
Sentencing Act 1995 (WA), s 6
Abeyakoon v Brown [2011] WASCA 63
Barron v The State of Western Australia [2010] WASCA 27
Blechynden v Bogumil [2011] WASC 4
Boyle v The State of Western Australia [2010] WASCA 97
Brown v The State of Western Australia [2010] WASCA 228
Brown v The State of Western Australia [2011] WASCA 111
Chan v The Queen (1989) 38 A Crim R 337
CSR Ltd v Della Maddalena [2006] HCA 1; (2006) 80 ALJR 458
Devine v State of Western Australia [2010] WASCA 94
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
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
Giglia v The State of Western Australia [2010] WASCA 9
Hili v The Queen [2010] HCA 45; (2010) 272 ALR 465
Hunt v Callaghan [2011] WASC 10
Longbottom v The State of Western Australia [2008] WASCA 203
Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665
Nguyen v The State of Western Australia [2007] WASCA 114
Page v The Queen [2008] NSWCCA 26
Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610
Punch v The Queen (1993) 9 WAR 486
R v Janceski (No 2) [2005] NSWCCA 288
R v Stebbings (1990) 4 WAR 538
R v Tran [2002] VSCA 52; (2002) 4 VR 457
Roffey v The State of Western Australia [2007] WASCA 246
Taylor v The State of Western Australia [2009] WASCA 226
The State of Western Australia v Collier [2007] WASCA 250
The State of Western Australia v Eades [2011] WASCA 157
The State of Western Australia v Gibbs [2009] WASCA 7
The State of Western Australia v Olive [2011] WASCA 25
Wiltshire v Mafi [2010] WASCA 111
Winwood v Brown [2011] WASC 123
Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584
Wood v The Queen [2002] WASCA 95
Woods v The Queen (1994) 14 WAR 341
1 SIMMONDS J: This is an application for leave to appeal and an appeal against sentence.
2 On 4 March 2011, following a trial on 28 February and 1 March 2011 in the Magistrates Court in Joondalup, Magistrate Flynn convicted the appellant on two counts of dangerous driving involved in an incident occasioning death, contrary to Road Traffic Act 1974 (WA) s 59(1)(b). The two deaths occurred on Marangaroo Drive in Marangaroo around midnight on 26 September 2009.
3 On 15 April 2011, following sentencing submissions for the appellant and for the prosecution, Magistrate Flynn sentenced the appellant on the two counts to a total effective sentence of imprisonment of 30 months, to be served immediately, with eligibility for parole. Magistrate Flynn imposed a sentence of 28 months each on the two counts, to be served partly concurrently. Two months of the sentence on one count was to commence immediately and the sentence on the other count was to commence two months thereafter.
4 On the same day, 15 April 2011, on the appellant's plea of guilty to a charge that he drove a motor vehicle with a blood alcohol content calculated as 0.124, contrary to Road Traffic Act s 64, Magistrate Flynn sentenced the appellant to pay a fine of $600 and disqualified him from driving for 5 months. It will be seen shortly that that driving was involved in the incident in question.
5 The appellant does not seek leave to appeal against his convictions. His appeal is only against the sentences for the dangerous driving offences. The appellant has originally sought leave to appeal on only one ground, that the sentence imposed by Magistrate Flynn was manifestly excessive. At the hearing before me he sought leave to amend his grounds of appeal to add three further grounds: that Magistrate Flynn erred in one of his findings of fact from the trial, a finding to which he referred in his sentencing remarks; that Magistrate Flynn erred in imposing the same penalties for both dangerous driving offences; and that Magistrate Flynn erred in imposing a total sentence that did not bear a proper relationship to the overall criminality. The respondent did not oppose the addition of the three further grounds. I would grant both leave to amend the grounds of appeal as proposed and, for the reasons that follow, leave to appeal on all grounds.
6 As to the amendments, as will become apparent, I consider the first ground should, notwithstanding its wording, be understood as directed to manifest excessiveness of the lengths of each of the two sentences on the dangerous driving counts; while the further grounds should be understood as directed to the manifest excessiveness of the aggregate or total effective sentence: see Nguyen v The State of Western Australia [2007] WASCA 114 [4] - [5], [12] - [15] (Steytler P, McLure JA and Miller AJA agreeing). So understood, the two grounds of appeal go to distinct matters, as to each of which I consider there to be legitimate argument, and which are not adequately expressed in the original grounds of appeal. Leave to amend the grounds of appeal to add ground 4 may properly be granted in such a case: see 'Criminal Law in Western Australia' (as at 3 July 2011 [9560.25]). The remaining two further grounds are also ones for which leave to amend may be granted in accordance with the same standard.
7 The parties took the position before me that the application for leave to appeal and the appeal should be heard and determined together. I so proceed.
8 I turn now to consider each of the grounds of appeal as amended. For reasons which will become apparent, it is convenient to start with ground 2.
The learned Magistrate erred in fact in finding that the risks that the two deceased took in stepping in to the lane of the road on which they were struck were low.
Particulars
10 I understood the submissions for the appellant to be that this error was one as to a matter which was relevant to the seriousness of the offence and thus to culpability. The error caused Magistrate Flynn to put the offending in a category of greater seriousness than was appropriate and the appellant should be re-sentenced to a suspended term of imprisonment or to a significantly shorter term of immediate imprisonment on each of the dangerous driving counts. The error was also relevant to ground 1, as going to show that in any event each sentence was manifestly excessive, and to ground 4, as going to show the total effective sentence was manifestly excessive.
11 To understand ground 2, I must describe certain circumstances forming the background to and nature of the offending in more detail. I do so for the most part by reference to findings of Magistrate Flynn in his reasons for conviction which are not in contest. For the rest, for the most part I describe his findings in those reasons and the evidence relevant to those findings to which the parties drew my attention.
12 Saturday 26 September 2009 was the night of a joint birthday party of RB and her elder brother J in Marangaroo. RB's relatively new boyfriend, JB, was also at the party, together with friends of RB's, including TC, HJ and CS. RB had one week earlier turned 17; the others mentioned were 16 or 17 at the time.
13 Also at the party were friends of J's, including the appellant, CM and CM's girlfriend, RH. The appellant, CM and RH were all three or four years older than RB and her friends. The appellant was 21 at the time of the party.
14 The party started at 8.00 pm. The appellant, RB, TC, HJ, CS, CM and RH all drank alcohol at the party. The appellant consumed a six-pack of full-strength beer at the party, having had three alcoholic drinks earlier in the day. At the time of the dangerous driving, not long after midnight, the appellant's blood alcohol level was 0.124.
15 At about 11.00 pm, HJ and CS left the party and walked a short distance to Marangaroo Drive. They remained on logs adjacent to the footpath on the north side of Marangaroo Drive. Shortly after they got there, RB and her boyfriend JB joined them. TC joined the four a short time later.
16 Marangaroo Drive at that point was a dual carriage way running west-east with two lanes each side of a centre island. Magistrate Flynn called the east-bound lane closest to the kerb on the north-side 'lane 2' and the east-bound lane alongside lane 2 and closest to the island 'lane 1'.
17 RB was apparently upset about something JB had done and was angry with him. At the point where RB and JB joined HJ and CS, and where TC later joined the four, and on up to eight to 10 occasions, RB and JB did what Magistrate Flynn characterised as 'three similar but distinct things' (4 March 2011, ts 4).
18 One involved RB moving into lane 1 or lane 2 when no vehicle was coming, remaining there until JB directed her off the road. Another involved RB, when a vehicle was approaching from the west, going to move from the footpath into lane 2 and being prevented from doing so by JB: in all of these cases approaching vehicles slowed significantly or stopped. And another involved RB moving into lane 1 or lane 2 when a vehicle was approaching in that lane from the west, and JB moving onto the road and directing her off it, either to the island or to the footpath, on the north side of Marangaroo Drive: on some occasions TC would step onto Marangaroo Drive between RB and JB, on the one hand, and the approaching vehicle, on the other, to alert the vehicle as to the presence of RB and JB and to tell JB from which lane the vehicle was approaching; again the vehicles slowed or stopped.
19 Magistrate Flynn also said this (4 March 2011, ts 4):
When [RB] moved or tried to move onto the road she sometimes said things like 'hit me' or 'kill me' directed towards the car and she said words to the effect, 'I want to leave this world.' [RB] was also physically aggressive to [JB] in response to his attempts to stop her going onto the road. She struck him a number of times including punching him to the face. There was a lot of yelling between [RB] and [JB].
20 After a period, RB, JB and TC moved along Marangaroo Drive in a westerly direction, RB and JB on the traffic island in the centre, TC on the footpath on the north side. None of the others accompanied them on this journey. RB 'continued with the conduct that I have described' (4 March 2011, ts 5). I am satisfied that Magistrate Flynn, in saying this, included declarations that she meant to kill herself, which as counsel for the appellant noted, continued at least to the point she crossed the intersection I next mention.
21 Around midnight, about 5 or 10 minutes before RB, JB and TC moved on the journey described, the appellant, CM and RH had left the party in the appellant's vehicle for a nearby service station, to buy cigarettes and soft drink. The appellant drove, CM was in the front passenger seat and RH was in the back. At the service station CM left the vehicle and bought some items, returning to the front passenger seat. RH meantime stepped out and back into the vehicle, to sit in the rear passenger seat on the driver's side. The appellant then drove the vehicle back in the direction from which he had come, east on Marangaroo Drive.
22 After moving about one kilometre on their journey, RB, JB and TC arrived at the intersection of Marangaroo Drive with Highclere Boulevard, and they all crossed it, RB and JB in the centre of Marangaroo Drive and TC on the north side.
23 As the appellant's vehicle on its way from the service station approached the intersection its speed was, Magistrate Flynn found, 80 kph, in a 70 kph zone. Both RH and CM had told the appellant, during the journey to the service station it seems, to slow down, although Magistrate Flynn was unable to make any finding as to whether or not the appellant had changed his speed as a consequence. The vehicle was between a point the same distance from a point to the west of the solid white line crossing lanes 1 and 2 at the intersection, as that second point was from that line. Magistrate Flynn called the first point 'D' on Schedule 1 to his reasons, which was a marked up aerial photograph of the intersection of Marangaroo Drive and Highclere Boulevard. He called the second point 'the point of impact' ('E' on Schedule 1).
24 At that time CM called out to the appellant to watch out. As CM said this or almost immediately thereafter the appellant swerved the vehicle to the right and hit RB and JB at the point of impact. The point of impact was in lane 2; almost due north was a point ('F' on Schedule 1) at which TC, who had been in lane 1, had jumped back to avoid the vehicle, while due south of the point of impact was a point from which RB had stepped from the traffic island ('G' on Schedule 1).
25 It is necessary now to reproduce the portions of Magistrate Flynn's reasons which as will appear became the focus of the present ground (4 March 2011, ts 9 - 10):
As [CM] said those words Mr Easthope saw [TC] in lane 2 and he also saw [RB] in lane 1 and [JB] following her. His evidence in his video record of interview was that he saw people all over the road, six. In fact he saw the three people which I have just identified. [CM's] evidence was to the effect that he saw people who he assumed were pedestrians. He saw them moving across from the island into lane 1. He in fact saw [RB] and [JB].
I am satisfied that [RB] stepped into lane 1 whilst Mr Easthope was in lane 2 and that [JB] followed [RB]. I am satisfied that [RB] and [JB] were in lane 1 before Mr Easthope swerved from lane 2. To the extent that [TC's] evidence might be interpreted to suggest that [RB] stepped into lane 1 after Mr Easthope commenced the swerve it is inconsistent with, on my assessment, [CM's] evidence and Mr Easthope's evidence in the video record of interview that they saw people in lane 1 and that's what caused the swerving manoeuvre.
By the time Mr Easthope had been warned by [CM] and saw people in front of him in lane 1 and in lane 2 he was almost upon [TC] in lane 2. As [TC] stepped back out of lane 2 towards the sliplane Mr Easthope pulled the wheel hard to the right and his vehicle moved from lane 1 into lane 2. This was done primarily to avoid a collision with [TC] who was directly in front of him but it brought him into line with [RB] and [JB]. They were now stationary in the centre of lane 1 as [TC] said and as [CM] said when he spoke about those pedestrians being confused. That is when the collision occurred at the point that I have marked E on the map.'
26 Magistrate Flynn's assessment of the risks RB and JB took in stepping on to Marangaroo Drive before being hit should, it appears to me, be understood against the background of the portion of his reasons to do with whether or not the appellant had made out the defence in Road Traffic Act s 59B(6), which needs to be set out with the offence provisions, s 59(1)(b) and s 59(2)(b), 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 -
...
(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,
...
(b) it is immaterial that the death or grievous bodily harm might have been avoided by proper precaution on the part of a person other than the person charged or might have been prevented by proper care or treatment; ...
...
59B. Section 59 and 59A offences: ancillary matters and defence
...
(6) In any proceeding for an offence against section 59 or 59A it is a defence for the person charged to prove that the death, grievous bodily harm or bodily harm occasioned by the incident was not in any way attributable (as relevant) -
...
(b) to the manner (which expression includes speed) in which the motor vehicle was driven.
27 Magistrate Flynn said this, as to what made the appellant's driving dangerous within s 59(1)(b) (4 March 2011, ts 11 - 12):
There are two critical issues to focus on when examining Mr Easthope's driving. One is his speed. To travel at 80 kilometres per hour in a 70 zone at midnight on an arterial road in suburban Perth self-evidently is not of itself dangerous. What is significant however is that Mr Easthope travelled at that speed knowing that he had consumed a six pack of alcohol and had sufficient alcohol in him to give a reading of .124. His slower reaction time at speeds in excess of the limit exposed his passengers and other road users to a heightened level of danger.
The other significant factor is Mr Easthope's level of attention to his driving. Mr Easthope travelling in lane 2 failed to see [TC] who was at a point that I marked F on the schedule in lane 2 until Mr Easthope was almost upon [TC]. Is there any reasonable inference available from the failure of Mr Easthope to see a stationary pedestrian in the middle of a lane; that is, lane 2, on an arterial road in suburban Perth at midnight other than a significant lapse of attention?
I am satisfied that the visibility was sufficiently clear for at least 50 metres before the point where [TC] was in lane 2. [TC] ought to have been seen by Mr Easthope well before Mr Easthope saw [TC]. There was nothing to interfere with his visibility. There was some ambient light from a nearby street light and of course there was Mr Easthope's own car headlights. The only inference available to me is that Mr Easthope was driving at this place at this time when there was a significant lapse of attention to what was happening in front of him on his part.
I am satisfied that given the combination of speed, the level of alcohol that he had consumed and the failure to pay attention such that Mr Easthope did not see a pedestrian who ought to have been or who was visible from where Mr Easthope was at least 50 metres ahead of him at this place in suburban Perth on this arterial at midnight answers the description of dangerous driving.
At the last second Mr Easthope swerved. It is not the swerve that was dangerous. It was the driving immediately before the swerve, the driving that made an uncontrolled evasive manoeuvre necessary that was dangerous. That driving was to travel at 80 kilometres per hour whilst affected by alcohol and not paying sufficient attention to what was happening in front of him.
28 I understood there was no contest between the parties that Magistrate Flynn correctly so described the appellant's driving.
29 Magistrate Flynn said this in respect of the application of the defence in s 59B(6) to this case (ts 12 - 13):
I have already found beyond reasonable doubt that Mr Easthope was in lane 2 approaching from the west [at] 80 kilometres per hour when [TC] was in lane 2 and when [RB] stepped into lane 1. This was done when the vehicle was at approximately the point that I have marked D. I am not satisfied on the balance of probabilities that [RB] intended to continue moving into lane 2 into the line that the accused would have travelled had [he] not swerved.
On my assessment it is equally probably [sic] that [RB] having regard to her conduct on the road, Marangaroo Drive, as I have summarised earlier that her movement into lane 1 was done in her expectation that the vehicle would slow and continue in lane 1 or that [JB] would intervene and physically restrain her. [RB's] conduct self-evidently carried risks. [JB's] conducting [sic] in following her, perhaps explicable as to why he did it, carried an equal risk.
The extent to which their conduct involved a risk of death, in my view, may be assessed by viewing a range of possible outcomes if a driver in the position of Mr Easthope was not driving dangerously. Such a driver travelling at 70 kilometres per hour keeping an ordinary lookout for what was happening in front of him or her in lane 2 may well have panicked at the sight of pedestrians in the position of [TC] and [RB] and [JB].
There may have been delayed reaction and that ordinary non-dangerous driver may have made a poor decision and death may have occurred. I say may. My assessment is that it is much more likely that an ordinary driver in that position would have slowed to a safe speed. I am satisfied on the balance of probabilities that the conduct of [RB] and [JB] carried a risk of death. I would characterise that level of risk as greater than negligible but much less than likely.
Returning to the words of the Road Traffic Act, the issue is whether or not [RB] and [JB's] deaths was [sic] not in any way attributable to Mr Easthope's manner of driving. I must revisit his manner of driving. His failure to keep a proper attention to lane 2, the lane in which he was travelling, given his speed and alcohol had the result that if evasive action was required by him it was going to involve swerving late either into lane 1 or into a sliplane. If anyone or anything was in those places they were at significant risk of significant injury.
This precise risk manifested itself. The real possibility of a driver having to take evasive action because of a pedestrian being in a position that [TC] was and the limited options if that evasive action is taken late and the degree of risk that was assumed by [RB] and [JB] to which I have referred combine for me to conclude that Mr Easthope has failed to satisfy me on the balance of probabilities that their deaths were not in any way attributable to his manner of driving.
30 The derivation of Magistrate Flynn's assessment of the risks RB and JB took for the purposes of sentencing the appellant appears from his sentencing remarks as follows (15 April 2011, ts 12):
I said that your manner of driving as you travelled on Marangaroo Drive was dangerous because you were travelling at 80 kilometres per hour in a 70 zone, with knowledge that you had consumed a significant quantity of alcohol sufficient to give a reading of .124, and also that at the time of driving you had a significant lapse of attention as to what was happening in front of you. You failed to see a pedestrian in a lane in which you were travelling, [TC]. That led, in turn, to you having to swerve to avoid him when you eventually did see him, and you collided, then, with [RB] and [JB] who had been standing in the lane closest to the centre of the road.
When you struck them, they died at the scene. I describe the conduct of [RB] and [JB] as carrying risks. There was always a risk when they, doing what they were doing, standing in a lane, a motorist would come alone and that motorist would take evasive action and that something would go wrong. I said, however, that in the usual case an ordinary driver would have seen people in the position of [TC], [RB] and [JB], and slowed. The risk that they assumed were low. They should not have been killed for the risk that they took.
31 I turn now to consider the particulars to ground 2.
32 In terms of the particulars, it will be seen that Magistrate Flynn found that the evidence established particulars (a) and (d), save that his findings do not identify the number of vehicles in front of which RB stepped on the roadway. There was evidence from HJ, for the period before the journey to Highclere Boulevard, that there were 8 to 10 vehicles that had to slow down and swerve, or that had been on the road when she was there and JB pulled her off (28 February 2011, cross-examination of HJ, ts 40). However, I note there was also evidence from another witness at the logs putting the number lower, at 'three or four at the most' (28 February 2011, examination-in-chief of CS, ts 45).
33 Magistrate Flynn's findings do not include a reference to the statement attributed to JB in particular (b). HJ made that attribution in her evidence. At the same time, Magistrate Flynn's findings do include the reference just quoted to JB's 'conducting [sic conduct] in following her, perhaps explicable as to why he did it, carried an equal risk'. I consider that indicates Magistrate Flynn had borne that evidence of HJ in mind.
34 It will also be seen, however, that Magistrate Flynn found that, contrary to particular (c), RB was in the lane in which she was struck (lane 1) before the appellant swerved from the lane in which he had been travelling (lane 2). In the quotation from his reasons above, Magistrate Flynn acknowledged there was evidence from TC which 'might be interpreted to suggest' RB stepped into lane 1 after the appellant began to swerve. This appears to be a reference at least to this evidence, in cross-examination, as follows (28 February 2011, ts 27, ts 29):
They were standing on that island?---Yes.
You've marked where they were standing?---Yes.
So it's at that point that you saw some lights coming?---Yes.
You stepped out of the way?---Yes, jumped.
Jumped out of the way?---Yes.
And you said you saw the car move into the other lane?---Yes.
It was at that point that [RB] stepped out in the middle of the lane, didn't she?---Yes.
And [JB] said, 'Don't. I love you'?---Yes.
He tried to grab her out of the way?---Yes.
Is that right. But she sort of fought back, didn't she?---She did, yes.
When they were struck, they were more or less hugging each other, weren't they?---Yes.
...
That's when you noticed the lights coming up the road?---Yeah.
Jumped out of the way?---Yeah.
And that's when [RB] and [JB] stepped into that lane?---Yeah.
When I say 'that lane' they stepped into the right-hand lane - - -?---Yes.
- - - the one closest to the island?---Yes.
Is that correct?---Yes.
That's when they were struck by the vehicle?---Yes.
35 Counsel for the appellant also directed me to evidence TC gave in his examination-in-chief (28 February 2011, ts 14 - 15), which I accept is to the same or at least a similar effect, as well as evidence also in his examination-in-chief as to what TC said after he saw the impact (28 February 2011, ts 17). This was evidence which counsel for the appellant submitted was probably one of the most important pieces of evidence in the trial, when considered in the context of the evidence to which I have referred the subject of particular (a), including the continuing declarations by RB she wanted to kill herself as she crossed the intersection of Marangaroo Drive and Highclere Boulevard. The evidence counsel was referring to was this (28 February 2011, examination-in-chief of TC, ts 17):
So what did you do next?' What's the next thing you did?---I screamed out, 'Becky,' and said, 'Why did you do it?'
36 This evidence was not challenged in cross-examination.
37 Counsel for the appellant put to me that this evidence should have been weighed heavily, but was not, in determining whether to accept TC's evidence that RB and JB walked into lane 1 as the appellant began to swerve. That is, that evidence, as I understood the submission, should be seen in that light to be much more plausible, as consistent with an intention by RB to commit suicide and JB to follow her.
38 I accept without deciding that it would have been an error not to have weighed the evidence of TC in that context for that purpose. I accept also that Magistrate Flynn does not refer to TC's evidence just quoted in this context or elsewhere. However, in my view, the evidence is more equivocal than counsel submits, when the context is widened to include RB's conduct on the road earlier, as Magistrate Flynn described it, in terms of it being equally probable that she acted in her expectation that the vehicle would slow and continue in lane 1 or that JB would intervene and physically restrain her (4 March 2011, ts 12). That is, TC's remark is also susceptible of explanation in terms, not of anguish at suicidal behaviour, but anguish at unnecessarily risky behaviour.
39 As the quotation from Magistrate Flynn's reasons indicates, he preferred the evidence of CM and the appellant in his video record of interview, to the extent it was 'inconsistent' with that of TC in the respects quoted. Counsel for the appellant directed my attention to certain detail in CM's evidence. That detail was as follows (28 February 2011, ts 68 - 69):
Is that the lane you were travelling in?---Yes, so we were in the left lane.
You were in the left lane?---Yep.
Okay, yes?---Then in the last sort of minute, seen two people - or not really - I couldn't really describe those two people. It was like a bit of a shadow and would've yelled out, 'Watch out,' and then Dylan went to go, like, around them. As he went around them, it's like they sort of - from us being in the left lane from where they were sort of in the middle, it's like we went to go to the right lane to go around them - and thought they might continue on in the left lane.
So they were in the right-hand lane?---Yeah, crossing the road.
The car was travelling in the left-hand lane?---Yep.
You yelled out, 'Look out'?---Yep.
The car moved towards the right-hand lane. Is that right?---Yeah, trying to go round them.
When you yelled out, 'Look out,' did Dylan respond in any way?---Yeah, because he went to go around them.
What happened then?---Then [RB] and [JB] - it was like we went in the left lane because we went to go around them - they sort of got - because there was, like, a bit of confusion and they went - because they might have thought we were going to go straight through, they sort of held back from crossing the road, so then they're still in the right lane, but we went to go around them, so we've gone from the left lane to the right lane and that's where they've jumped back.
That's where what, sorry?---[RB] and [JB] have jumped back from crossing the road.
What happened then?---The impact happened.
40 None of this evidence was contested in cross-examination.
41 It may be noted, as counsel for the appellant did, that some of the prosecutor's (unobjected to) questions were undoubtedly of a leading character. This is particularly the case for my purposes of the question 'So they were in the right-hand lane?' Answers to such questions are admissible, but, as Heydon JD, Cross on Evidence (8th Australian ed 2009) [17150] (citing authorities at n210) notes, 'the method by which they are obtained may rob them of all or most of their significance'. In my view, whether they are so robbed may depend upon what other relevant evidence there is.
42 It may also be noted, as counsel for the appellant did, CM's evidence may be understood as indicating that at one point RB and JB were in lane 2. However, in my view his evidence is not clear on this. In my view of it, that evidence is rather that the appellant, in response to CM's warning went to go around RB and JB from the left lane, where RB and JB were 'sort of in the middle', and were in a state of 'confusion' and 'sort of held back' or 'jumped back'. As will become apparent this evidence aligns with that of the appellant in the video recorded interview.
43 The only other evidence was from the appellant's video-recorded interview. RH did not testify. I viewed the interview, and I note the appellant's repeated statements that he saw people spread out over both lanes when CM told him to watch out as there were people there (18:11 - 18:16, 20:34 - 20:40, 21:38). At that point the appellant said he moved or swerved to the right, to avoid people in the left lane, when he hit people he was swerving to avoid (21:50, 22:12, 25:34, 23:05, 23:18, 36:36, 40:55). The appellant's evidence as to the point of impact, that it was in the left lane (lane 2), was inconsistent with the evidence Magistrate Flynn accepted that it was in lane 1, not lane 2. However, it seems to me that the appellant's evidence, when considered with the point of impact in lane 1, not lane 2, that he was reacting by swerving to seeing people spread across both lanes and hit people he was swerving to avoid, does indeed offer support for CM's evidence to the extent it indicates RB and JB were in lane 1 before the appellant commenced swerving and to represent evidence inconsistent with TC's evidence.
44 In respect of TC's evidence I also note, as counsel for the respondent reminded me, TC's testimony putting the point of impact at the intersection of Marangaroo Drive and Highclere Boulevard. This was inconsistent with the point of impact at 'E' on Schedule 1 to Magistrate Flynn's reasons. This, counsel submitted, gave a reason not to prefer the evidence of TC. However, this not a matter on which Magistrate Flynn rested his finding as to RB's and JB's conduct at the point of impact. I consider I should not invest it with any significance.
45 Given the conflict on the uncontested evidence of TC and CM, and my review of all of the evidence just described, I am unable to conclude that Magistrate Flynn made an error in finding the evidence established the contrary of ground 2, particular (c). In arriving at that view, I have applied the approach to determining whether, on an appeal under Criminal Appeals Act 2004 (WA) Pt 2, a magistrate has made an error of fact that is described in Blechynden v Bogumil [2011] WASC 4 [74], [77] (Murray J), referring to Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 and CSR Ltd v Della Maddalena [2006] HCA 1; (2006) 80 ALJR 458, as follows:
To determine whether the magistrate erred in her judgment about that question, having regard to the grounds of appeal, I must review the evidence, consider its capacity to support the inferences and conclusions drawn by the magistrate, and if I consider that her Honour has fallen into error, I must not shrink from drawing my own conclusions to the extent that it is open to me to do so. In that regard I should, however, constantly bear in mind that I was not the trial judge and that I have not had the advantage possessed by her Honour the magistrate of being able to see and hear and make an assessment about the reliability of the witnesses as they gave their evidence.
...
The leading case guiding an appellate judge, placed as I am in relation to a case such as this, is Fox ... per Gleeson CJ, Gummow and Kirby JJ, at 127 - 129 [27] - [31]. That decision was applied in CSR ...: see Kirby J, Gleeson CJ agreeing, at 466 [21] - [23] and Callinan and Heydon JJ at 492 [180].
46 In my view, Magistrate Flynn made that finding beyond a reasonable doubt, given where in his reasons the finding appeared. On my analysis above, it has not been shown to me that he was in error in doing so.
47 Counsel for the appellant submitted, as I understood him, that, even if Magistrate Flynn had correctly so found, he had not determined beyond a reasonable doubt that the risk RB and JB assumed was that which he assessed. He was required to do so, counsel submitted, as the risk he assessed was a circumstance of aggravation. Had he not made the finding he made, he would not have been able to assess the risk for sentencing purposes as he did, as low. However, the converse did not hold, counsel submitted by way of reply at the conclusion of the hearing. That was because on the evidence it was established there were people on Marangaroo Drive that night who were not crossing 'in haste' and were doing so in 'dark clothing', as Magistrate Flynn found. Those circumstances made it impossible to assess the risk as 'low'.
48 In my view, that last submission cannot be accepted as it was not the basis on which the appeal had been conducted. Argument was directed in both the appellant's written and oral submissions to the matter of Magistrate Flynn's assessment of the evidence of TC's account of the movements of RB and JB immediately prior to the impact at the point of impact.
49 However, the present ground of appeal is sufficient, in my view, to raise the question whether the finding that the risk that RB and JB took, in stepping into lane 1 in which they sustained the impact with the appellant's vehicle, was low even after accepting other findings Magistrate Flynn made, having regard to the matters in particulars (a), (b) and (d), was in error. I took counsel for the appellant to be contending there had been such an error.
50 In my view, such an error has not been shown. In my view of Magistrate Flynn's sentencing remarks, his description of the risk assumed by RB and JB as 'low' was an expression of the combined effect of his findings as to the point at which they were standing on Marangaroo Drive, how and when they came to be standing there and what ordinary drivers in the usual case would do in conditions at and near that point: see 15 April 2011, ts 12. That description was for the purposes of Magistrate Flynn's determination that, in agreement with the submissions of the appellant's then counsel to him, he needed to 'weigh into account the conduct of [RB] and [JB], in assessing the seriousness of the offence' (15 April 2011, ts 13). Magistrate Flynn described how he had 'weighed into account' that matter shortly afterwards, as follows (15 April 2011, ts 14):
[RB] and [JB] also took a risk in standing on the road where they did. On my assessment that reduces your level of responsibility.
51 All of the findings which in my view Magistrate Flynn expressed in his description of the risk as 'low' were made beyond a reasonable doubt. To the extent taking into account the conduct of victims in an offence under Road Traffic Act s 59(1)(b) requires proof beyond a reasonable doubt, a requirement that does apply for that purpose in my view, that requirement was met here. For reasons best explained in relation to ground 1, I consider that requirement did apply here.
Ground 1: manifest excessiveness of individual sentences
The sentence imposed by the Magistrate was manifestly excessive.
55 I have previously indicated that this ground should be understood as relating to each of the two individual sentences.
56 The principles applicable to consideration of such a ground are well understood and were not in contest before me. They sufficiently appear for my purposes in The State of Western Australia v Collier [2007] WASCA 250 [18] - [19] (Steytler P, McLure & Miller JJA agreeing), referring to Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665; Dinsdale v The Queen [2000] HCA 54 ; (2000) 202 CLR 321; and Chan v The Queen (1989) 38 A Crim R 337, as follows:
In any appeal against sentence an appellate court is not entitled to intervene merely because it would have exercised the sentencing discretion in a manner different from the sentencing judge: Lowndes ... It may intervene if there is a material error of fact or law. Error may be inferred if the result is unreasonable or unjust: Dinsdale ... 324 - 325.
In order to determine whether or not a sentence is unreasonable or unjust, in the sense that it is manifestly excessive, the sentence must be viewed in the perspective of the maximum sentence prescribed for the offence, the standards of sentencing customarily observed with respect to the offence, the place which the criminal conduct occupies on the scale of seriousness of crimes of that type and the personal circumstances of the offender: Chan ... 342.
57 I also note Boyle v The State of Western Australia [2010] WASCA 97 [38] (Blaxell J, McLure P & Owen JA agreeing):
In the end, a determination that a sentence is manifestly excessive is a conclusion which often does not admit of amplification beyond stating the respect in which the sentence is excessive. It may be excessive because the wrong type of sentence was imposed (for example, custodial rather than noncustodial) or because the sentence imposed was manifestly too long. The degree of elaboration that is possible will vary from case to case (Dinsdale at 325 - 326).
58 At bottom, '[a] complaint of manifest excess is a complaint of implied error on the part of the sentencer': Brown v The State of Western Australia [2011] WASCA 111 [96] (Mazza J, McLure P & Pullin JA agreeing).
59 In relation to finding such an error, I note the following, from Hili v The Queen [2010] HCA 45; (2010) 272 ALR 465 [59], [60], referring to among other authorities Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584 and quoted in this connection in Winwood v Brown [2011] WASC 123 [28] (Commissioner Sleight) (footnotes omitted):
As was said in Dinsdale ..., '[m]anifest inadequacy of sentence, like manifest excess, is a conclusion'. And, as the plurality pointed out in Wong, appellate intervention on the ground that a sentence is manifestly excessive or manifestly inadequate 'is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases'. Rather, as the plurality went on to say in Wong, '[i]ntervention is warranted only where the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons'. But, by its very nature, that is a conclusion that does not admit of lengthy exposition. And, in the present matters, the Court of Criminal Appeal, having described the circumstances of the offending and the personal circumstances of the offenders, said that 'the sentence imposed in these matters is so far outside the range of sentences available that there must have been error'.
The Court of Criminal Appeal also said that 'manifest error is fundamentally intuitive'. That is not right. No doubt, as the Court went on to say, manifest error 'arises because the sentence imposed is out of the range of sentences that could have been imposed and therefore there must have been error, even though it is impossible to identify it'. But what reveals manifest excess, or inadequacy, of sentence is consideration of all of the matters that are relevant to fixing the sentence. The references made by the Court of Criminal Appeal to the circumstances of the offending and the personal circumstances of each offender were, therefore, important elements in the reasons of the Court of Criminal Appeal.
60 I turn then to the four factors from Chan noting the importance of the circumstances of the offending and the personal circumstances of the appellant.
61 In relation to the maximum penalty for the offence, this at all material times was a fine of any amount, 10 years imprisonment and a mandatory minimum 2 years driver's licence disqualification: Road Traffic Act s 59(3)(b). This applied to the offence in this case, even although there were lesser penalties being the summary conviction penalties representing the limits on the penalties Magistrate Flynn could impose. See Wiltshire v Mafi [2010] WASCA 111 [26] (Pullin & Buss JJA, Mazza J) and s 59(1). This maximum penalty represented an increase in the maximum term of imprisonment from 4 years to 10 years, effective for offences committed from 15 March 2008, by Road Traffic Amendment Act (No 2) 2007 (WA). By reason of the significantly lower penalty for previous offences, it has been said that cases relating to such offences are of little assistance in examining the standards of sentencing customarily observed for offences committed subsequently. See Devine v State of Western Australia [2010] WASCA 94 [15], [17] (McLure P). However, the other members of the court in Devine do not appear to me to have reached this point. In any event it seems to me that some assistance can be derived from such cases, as will become apparent. See Winwood [50] (on Taylor v The State of Western Australia [2009] WASCA 226, on an offence committed on 23 July 2007, returned to below) and Hunt v Callaghan [2011] WASC 10 [252] (Jenkins J).
62 Similarly, I should note the change to the offence in Road Traffic Act s 59 made before the change to the maximum penalty referred to. The earlier change, effective from 1 January 2005, was by Road Traffic Amendment (Dangerous Driving) Act 2004 (WA) to the present form of liability. The previous form required the prosecution to prove the manner of driving caused the death. See The State of Western Australia v Gibbs [2009] WASCA 7 [25] (Steytler P, McLure & Miller JJA agreeing), quoted in Winwood [34]. That earlier change makes cases decided on offences committed before 1 January 2005 of little assistance in relation to standards of sentencing for offences committed subsequently. However, some assistance may be derived from them. See Winwood [49] on, among other authorities, R v Stebbings (1990) 4 WAR 538.
63 I turn then to the standards of sentencing customarily observed with respect to the offence.
64 It was common ground there is no tariff for offences of this kind in view of the great variation possible in the circumstances of offending and the offenders. See to this effect The State of Western Australia v Olive [2011] WASCA 25 [74] (Buss JA, McLure P & Mazza J agreeing) (offence committed 7 March 2008), referred to for this principle in Winwood [48].
65 It was also common ground that there appear to be only two appellate authorities on sentencings for offences like this one not involving any statutory circumstances of aggravation (see Road Traffic Act s 59(3)) and committed on or after 15 March 2008: Hunt and Winwood. Counsel for the respondent prepared a substantial table that included accounts of appellate reviews of sentences for offences of dangerous driving causing death (the earlier form of liability) and of sentencing decisions for such offences committed as far back as 24 April 2000 (Wood v The Queen [2002] WASCA 95), as well as for offences under the present form of liability prior to the increase in the maximum penalty committed as far back as 10 November 2005 (Longbottom v The State of Western Australia [2008] WASCA 203), in addition to Hunt and Winwood.
66 The respondent's table also included accounts of appellate reviews of sentences for dangerous driving causing death in circumstances which by Road Traffic Act s 59(3) increased the maximum term of imprisonment to 20 years, as well as accounts of sentences for vehicular manslaughter for which the maximum penalty was the same. However, counsel for the respondent did not rely on those sentences as I understood his written and oral submissions, except as appears from the following in Winwood, which for reasons which appear below counsel for the respondent put to me was the only one of the two cases on the present form of the offence with its present maximum penalty that was of 'real assistance' to the court.
67 I note from Winwood the review under the heading 'Comparable cases' at [48] - [60], referring to Taylor, Stebbings, Devine and Eves v The State of Western Australia [2008] WASCA 7; (2008) 49 MVR 259, among other authorities, as follows:
In Devine ..., the Court of Appeal reviewed cases involving both dangerous driving causing death and manslaughter before the amendments to the Road Traffic Act. Although these cases are of little assistance now, it is perhaps worth noting that even a young first offender has received an immediate term of imprisonment: Eves ...; Stebbings ...; and Taylor ....
Notwithstanding the difficulty in relying upon comparable cases, both counsel for the appellant and the respondent specifically referred me to a number of cases. The first of these was Taylor. This case has limited value because it was a charge under s 59 prior to amendment where it was an element that the driver caused the death. The offender was convicted after trial of dangerous driving causing death and dangerous driving causing grievous bodily harm. In relation to the charge of dangerous driving causing death, he received a sentence of 26 months. On appeal, this was reduced to 20 months. The offender was aged 18 and had good antecedents. The offender was challenged to a drag race by another driver. During the drag race, the offender reached a speed of 120 km per hour, but then slowed to about 90 km per hour. The speed limit in the area was 80 km per hour. The other vehicle clipped the offender's vehicle, causing it to run off the roadway. The deceased was thrown from the vehicle as she was not wearing a seatbelt and died as a result of her injuries. The speeding was over a short period of time of about 90 seconds. The maximum penalty under the then legislation was 4 years' imprisonment. The Court of Appeal concluded that the driving was not of the most serious kind, or even towards the upper end of the range of possible dangerous driving. However, clearly in that case, the drag racing between the two vehicles was a significant contributing factor to the death of the deceased and, under the legislation at the time, the manner of driving of the offender 'occasioned' the death of the deceased.
A case relied upon by the appellant is the case of Hunt's case which was an appeal against conviction and sentence of a young offender who was convicted in the Magistrates Court for an offence under the current s 59(1)(b) of the Road Traffic Act. The appeal against conviction was dismissed. However, the appeal against sentence was successful and an 18-month immediate term of imprisonment was reduced to a suspended term of imprisonment of 18 months. In Hunt's case, the offender was 19 years of age. He was the driver of a vehicle with five friends as passengers in the vehicle and one friend in the boot of the motor vehicle (as there was insufficient room for that person in the vehicle). Whilst the vehicle was travelling in a westerly direction in South Terrace, Como, a Hyundai Getz motor vehicle driven by the deceased pulled out of a driveway on the southern side of the roadway and into the path of Mr Hunt's vehicle. A collision occurred which caused the death of the deceased. There were parked vehicles on the southern side of the roadway immediately before the driveway from which the Hyundai Getz exited onto South Terrace. The magistrate found that the offender had an alcohol blood level of 0.077. Further, about 150 m from the crash, the offender was travelling in the order of 100 km per hour. The magistrate accepted evidence that the offender admitted that, at the point of impact, he was doing about 80 km per hour. The prosecution relied upon speed as the sole ground for dangerous driving. Jenkins J concluded that, given the circumstances of the case, it was not open to the magistrate to find that Mr Hunt's manner of driving had resulted in or caused the death of the deceased. It was not an element of the charge. Also she concluded that, on the facts of the case, it had not been proved that the manner of driving resulted or caused the death of the deceased. The offender had no prior convictions and had good antecedents.
Counsel for the appellant submitted that the circumstances of Hunt's case were more serious than the case of Mr Winwood, as in Hunt's case the driver was affected by alcohol, was driving at high speed down a suburban road and the driver ought to have anticipated vehicles pulling out onto the roadway from private driveways. Counsel for the respondent submitted that the circumstances in Hunt's case were less serious because:
(a) In Hunt's case the offender was speeding for no apparent reason, whereas Mr Winwood was speeding as a result of an intent to pursue another vehicle over a lengthy period of time;
(b) In Hunt's case the offender had limited opportunity to observe the Hyundai Getz due to obstruction to the offender's view. On the other hand, Mr Winwood should have seen the deceased, Mr Hennessy, right up to the point of collision if Mr Winwood had been keeping a proper lookout.
The submissions highlight the difficulty of comparing cases, as there are differences in the manner of driving.
Notwithstanding the manner of driving and the sentence imposed in Hunt's case, one decision of a single judge is incapable of establishing a standard of sentencing generally observed with respect to offences of this type. Of course, decisions on sentencing should be reasonably consistent, allowing for the fact that the exercise of discretionary judgment can never be uniform, given the varying circumstances: Wong .... Taking into account these discretionary features of sentencing, the nature of consistency sort is the application of the relevant principles: Hili ... [49].
In my opinion, a number of relevant principles apply to sentencing of offences under s 59(1)(b) which should be consistently taken into account.
Firstly, notwithstanding changes in the legislation, there is still a need for deterrent sentences to meet the seriousness of the offence and deter dangerous driving which remains an element of the new offence: Hunt's case [261]. At least in this regard, it is consistent with the approach taken under the former s 59: Wood ... [110] (Miller J). This is even though the prosecution may not have established on the evidence that the offender caused the incident which lead to the death of another person.
That general deterrence remains important, is consistent the Second Reading Speech in respect of the amending Act made by the then Attorney General Mr Jim McGinty (Western Australia, Parliamentary Debates, Legislative Assembly, 23 June 2004, 4184 - 4185):
The amendments to the Road Traffic Act 1974 contained within this Bill aim to address deficiencies in the law relating to dangerous driving causing death or serious injury. The deficiencies in the law were highlighted by the very sad death in August last year of Miss Jess Meehan, a 10-year-old girl. Jess Meehan died on 8 August 2003 after being hit by a car driven by an unlicensed and drunken driver. The police subsequently charged the driver with driving under the influence of alcohol and driving whilst under suspension and without a valid licence, and the minimum fine was imposed. The police took the view that a more serious charge, such as dangerous driving causing death, contrary to s 59 of the Road Traffic Act, could not be sustained upon the available evidence. Because of the deficiencies in s 59 of the Road Traffic Act, in particular, its requirement for a causative nexus to be established between the driver's intoxication and the collision causing death, the penalties imposed upon the driver involved in the incident that took Jess Meehan's life failed to address the true seriousness of his conduct. Justice was not served.
Secondly, it is still relevant to consider the extent the manner of driving contributed to the incident that caused the death of the deceased. As a matter of common sense, the greater the offender's responsibility for the incident which caused the death of the deceased, the greater the offender's culpability. This was recognised by Jenkins J in Hunt's case, where her Honour took into account that there was no evidence upon which the sentencing magistrate could have found that the speed of the offender's vehicle had resulted in or caused the death of the deceased [257]. This appears to be on the basis that although the offender was unable to prove he did not contribute to the incident so as to have a defence under s 59B(6) of the Road Traffic Act, it remained speculative as to whether in fact the manner of driving contributed to the death of the deceased, when the deceased's vehicle had pulled out into the path of the offender's vehicle.
Thirdly, an offence under s 59(1)(b) does not necessarily lead to an immediate term of imprisonment. Under s 6(2) of the Sentencing Act [1995 (WA)], the seriousness of the offending requires consideration of the following:
(a) the statutory penalty for the offence;
(b) the circumstances of the commission of the offence, including the vulnerability of any victim of the offence;
(c) any aggravating factors; and
(d) any mitigating factors.
In Hunt's case, when Jenkins J weighed up these factors, she concluded that it was appropriate to suspend the term of imprisonment. In assessing the seriousness of Mr Winwood's offending, it is necessary to consider these same factors.
68 Counsel for the respondent also drew my attention to Winwood [66], referring to Barron v The State of Western Australia [2010] WASCA 27 as follows:
As stated earlier in this decision, the appeal court cannot intervene simply because the court concludes that it would have imposed a different sentence. Cases such as this are always very difficult, particularly because, as a result of the incident, a death has occurred. Respect must be given to the discretionary nature of sentencing. In Barron ... Owen [JA] at stated as follows:
[I]t is difficult to identify sentences that are commonly imposed for the offence of dangerous driving occasioning death. This is quintessentially an area in which the discretion residing in the first instance judicial officer must be accorded due respect [47].
69 Winwood was a case where the offender had been driving in excess of 70 - 75 kph in a 60 kph zone in a built up area in pursuit of another vehicle when he saw the deceased on the median strip but remained focused on the pursuit, which continued. The victim was heavily intoxicated and had been listening to messages on his mobile phone. He began to cross the road in front of the offender's vehicle, when it hit him at the same time as the offender observed him, in the sense, it seems of for the first time taking particular notice of him.
70 As was the case with Magistrate Flynn, the magistrate in Winwood made no specific finding that the offender caused the death by his manner of driving, but the magistrate did find that 'but for' the offender's manner of driving there would not have been a loss of life: for this case, see 15 April 2011, ts 13; and Winwood [62]. It seems to me that Magistrate Flynn concluded that the appellant's manner of driving was a contributing factor to the incident that occasioned the deaths of RB and JB (see ts 13), as it seemed to Commissioner Sleight in Winwood (see [62]) the magistrate there reached such a conclusion in respect of the offender's manner of driving in that case. In both Winwood (see [62]) and this case the magistrate also took account of the conduct of the victim or victims as a contributing factor to the incident.
71 At the same time, it seems to me that in Winwood as in this case there was a sufficient basis upon which to find the offender's contribution was significantly greater than that of the victim or victims. See the persistence of pursuit through built up areas even after seeing the victim in Winwood; see the previous section of my reasons on how I consider Magistrate Flynn arrived at his description of the risk taken by RB and JB as low.
72 The circumstances of the offending Hunt are described in Winwood in some detail at [51], above. I note in particular from Hunt the following, at [246]:
The magistrate found that Mr Galestine had pulled out in front of Mr Hunt's vehicle and had thereby contributed to the incident. He was not able to find the respective positions of the Ford and the Getz at the time Mr Galestine pulled out. Neither was he able to make a finding as to the speed of the Getz at the time it did so. In these circumstances, it was not open to the magistrate to find that Mr Hunt's manner of driving 'was a major contributing factor' to the incident.
73 For the reasons I have given previously, I consider in this case, unlike Hunt, the sentencing magistrate had made findings giving him a sufficient basis for the conclusion as to comparative contribution he arrived at.
74 Of course, as noted in Winwood [54], one - or even two - decisions of a single judge is or are not capable of establishing the standard of sentencing generally observed with respect to offences of the present type. However, such a decision or decisions can be considered, as they were in Winwood, and as I have sought to do here, for discretionary features in sentencing for such offences reasonable consistency in the application of which should be pursued: Winwood [54].
75 Before me there was considerable attention in the written and oral submissions for the parties directed to whether and how far discretionary features in sentencing just described that take account of comparative contribution to an incident occasioning death should be pursued. As Winwood indicates, and as I read Hunt, such discretionary features should be pursued at least to the extent those authorities indicate. No reference was made in either authority, however, to any possible preclusion of such accounting from Road Traffic Act s 59(2)(b) read with s 59(2)(c). I have previously set out s 59(2)(b); s 59(2)(c) read as follows:
...
(c) when an incident occasions grievous bodily harm to a person and that person receives surgical or medical treatment, and death results either from the harm or the treatment, the incident is deemed to have occasioned the death of that person, although the immediate cause of death was the surgical or medical treatment if the treatment was reasonably proper in the circumstances and was applied in good faith.
76 However, it was common ground before me that s 59(2)(b) relates only to liability, not sentencing. I consider that to be correct, in view of s 59(2)(c).
77 However, it was also common ground there are no decisions of the Court of Criminal Appeal in this State directly addressing the relevance of the comparative accounting described. There is Punch v The Queen (1993) 9 WAR 486, 489 (Murray J, Pidgeon J agreeing) where, in relation to the offence of vehicular manslaughter, there is an indication, obiter, that the fault of the victim 'would have no relevance to the culpability of the [offender]'.
78 However, counsel for the appellant drew my attention to recent appellate authority in New South Wales and Victoria on the matter of the relevance of the behaviour of the victim other than one complicit in the driving in question. Those authorities indicate that the degree of blameworthiness of such behaviour was relevant, not as a circumstance of mitigation, but as a matter that could be taken into account as the absence of a circumstance of aggravation. See R v Tran [2002] VSCA 52; (2002) 4 VR 457; R v Janceski (No 2) [2005] NSWCCA 288 [29] (Hunt AJA, Spigelman CJ & Howie J agreeing); and Page v The Queen [2008] NSWCCA 26 [29] (Price J, McClellan CJ & Hall J agreeing).
79 Both counsel appeared to accept it was appropriate to weigh the victims' contributions to the incident in assessing the seriousness of the offending, the approach in Winwood. I consider that approach to be correct, not precluded for the present offence by Punch and consistent with the New South Wales and Victorian authorities cited. I will follow it in this case.
80 I turn to the place the criminal conduct occupies on a scale of seriousness of the offences of the present type. That place is set, it seems to me, by what made the driving dangerous, the consequences of the incident involving that dangerous driving and the driver's culpability in relation those consequences: see Abeyakoon v Brown [2011] WASCA 63 [36] - [37]; and Winwood [61] - [62].
81 It appeared to be common ground before me that what made the appellant's driving dangerous was the combined effect of speed, his blood alcohol level and his failure to pay attention to the extent he did not see a pedestrian (TC) on the road whom he ought to have seen. This was the view taken by Magistrate Flynn of what made his driving dangerous, as has been seen.
82 However, as counsel for the appellant pointed out, there was no expert evidence at trial as to the effect on drivers in general or the appellant in particular of a level of blood alcohol, 0.124. Indeed, an inference might be drawn from the willingness of CM and RH to go with the appellant to the service station that the appellant did not present to them as a person significantly affected by alcohol. The lack of any finding that alcohol caused or contributed to the deaths is indeed relevant to the culpability of the appellant, as is the presence of some reason for the appellant to believe he was not adversely affected by the alcohol he had consumed: see Abeyakoon [37]. However, it seems to me that Magistrate Flynn could properly take account of the level of blood alcohol in this case in determining what made the appellant's manner of driving dangerous, where that level was more than twice the level in Abeyakoon, CM and RH had themselves also consumed alcohol and there was no evidence of a period since the appellant's last consumption of alcohol of the kind of duration in Abeyakoon. That is, there was not a basis like that in Abeyakoon for the appellant to believe he was not driving in a condition of reduced capacity to exercise the care and attention the law demands of road users, whether or not it had the effect of him not exercising that care and attention at the relevant time. See Wood [45] - [46] (Murray J).
83 The consequences of the incident involving the dangerous driving were of course of a most serious kind, involving two deaths.
84 Finally, in relation to culpability, I note that Magistrate Flynn in his sentencing remarks said that '[b]ut for your dangerous driving there would not have been a loss of life' (15 April 2011, ts 13), which I have previously quoted; that the appellant drove a relatively short distance; but that 'at any time, because of your alcohol you did pose an increased risk to people on the road' (15 April 2011, ts 14); and that '[RB] and [JB] also took a risk in standing on the road where they did ... that reduces your level of responsibility' (15 April 2011, ts 14), also quoted above. In my view, only the first and fourth of these go to culpability while the second and third go to the separate matter of what made the driving dangerous. I consider that Magistrate Flynn so treated those matters.
85 In my view of the evidence which I considered in relation to ground 2, Magistrate Flynn was entitled to conclude as to the first and fourth as he did.
86 However, the criminal conduct of the appellant does not, it seems to me, represent behaviour of the 'hoonish' character identified in Winwood, involving dangerous behaviour sustained over a significant length of time and persisted in even after warnings of the possibility of an accident of the kind that occurred: see [63]. At the same time, unlike Winwood, the offender had consumed a significant quantity of alcohol. I have noted again the warnings CM and RH had given to appellant to slow down. However, Magistrate Flynn laid no emphasis on those in his sentencing remarks, and I do not consider such requests to have been equivalent to the initial observation of the victim in Winwood.
87 The criminal conduct here was thus serious, particularly in view of its consequences, which were more serious than in Winwood, and the alcohol. However, in my view, as in Winwood the conduct was not at the upper end of seriousness.
88 Finally, in relation to the personal circumstances of the appellant, it may be noted, as Magistrate Flynn did, that the appellant had not planned to take the journey to the service station that night when he came to the party; he was severely affected by what happened; and he had overcome difficulties in his youth to complete his education and was a particularly valued employee. I also note from the plea in mitigation that he was 21 years of age at the time of the offending, 23 at the time of sentencing. It was not put to Magistrate Flynn, nor to me, that the appellant's criminal record was relevant to sentencing.
89 In sum, it seem to me as a matter of evaluation of all of the matters I have reviewed that the individual sentences while at the higher end for such offending were severe. I have noted in this respect the authorities commended to me by counsel for the respondent, of Taylor as well as Winwood itself. It seems to me that the factor of alcohol, (for Taylor) the increase in the maximum penalty and the fact of two deaths need to be taken into particular account. It may also be that in this case the sentences are heavier than they might otherwise have been because of the way in which they have been combined for totality reasons. See The State of Western Australia v Eades [2011] WASCA 157 [22], referring to Giglia v The State of Western Australia [2010] WASCA 9 [40] (McLure P, Newnes JA & Mazza J agreeing). In that regard I note the following from Brown v The State of Western Australia [2010] WASCA 228 [42] (Mazza J, Newnes & Pullin JJA agreeing), referring to Roffey v The State of Western Australia [2007] WASCA 246 and Giglia:
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. Where the totality principle comes into effect, it is of little importance how the ultimate aggregate is made up. The real issue is whether the total effective sentence offended the totality principle, not whether one or more of the individual sentences were excessive: Roffey ... [24] - [26]; and Giglia ... [39] - [40].
90 I reach the matter of totality, the subject of ground 4, below.
The learned Magistrate erred in imposing the same penalties for both offences of dangerous driving occasioning bodily harm [sic], thus penalising him twice for the same dangerous driving.
94 Counsel for the appellant contended that the imposition of the same sentence for the two counts of dangerous driving involved in an incident occasioning death to another person was a form of 'express' error as it was to penalise the appellant doubly in respect of the same act of dangerous driving. His submission was that the penalty for one of the deaths should have been in respect of that conduct as well as that death, while the penalty for the other should, in recognition of that other penalty, have been only in respect of that other death. This approach he identified, correctly in my view, as that described in Eves as the 'orthodox' approach to avoiding multiple punishment under Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610: see Eves [27] - [30] (McLure JA, Steytler P agreeing), indicating that on that approach the sentences would be made wholly cumulative, subject to the application of the totality principle.
95 However, it is clear to me from Eves [30] - [32] that McLure JA recognised that multiple punishment could also be avoided by the alternative approach of sentencing without such division of the circumstances of the offending but employing partially cumulative sentences to the same end. This was the approach that her Honour followed in that case. It seems to me Steytler P in Eves [5] - [12] recognises the correctness of that alternative approach. His view in that regard is made even clearer in Longbottom [6] - [8]. Whether or not it is indeed permissible, consistently with Sentencing Act 1995 (WA) s 6, to follow the 'orthodox' approach under Pearce in this state (see Longbottom [45] - [46], Wheeler JA), is not a matter I need to address further.
96 It is clear in this case that Magistrate Flynn has followed the approach McLure JA followed in Eves. Whether in so doing he imposed a total sentence that was disproportionate to the total criminality involved is the subject of ground 4. His following of the approach he did with the effect as in Eves of imposing the same sentence for each offence was not itself in error.
The sentencing Judge erred in imposing a total sentence that did not bear a proper relationship to the overall criminality.
100 I understood this ground of appeal to concern the first limb of the totality principle, which is described as follows in Roffey [24] (McLure JA, Steytler P & Miller JA agreeing), referring to Woods v The Queen (1994) 14 WAR 341:
The appellant relies on the totality principle which comprises two limbs. The first limb is that the total effective sentence must 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 ...
101 I would add that it was not suggested that the second limb of the totality principle, that the court should not impose a 'crushing' sentence, was in issue in this appeal.
102 The proper approach to a challenge to a total effective sentence on the first limb of the totality principle appears not to have been in contest before me, and involves a review of the same matters as those I have considered in relation to ground 1: see Nguyen [4] - [5] as follows:
There are two grounds of appeal. It is necessary to deal with these grounds only to the extent that they rely upon a failure to give proper effect to the totality principle, that having been the only contention that was ultimately pursued. So far as it is relevant to the appellant's contentions, that principle requires that the aggregate sentence imposed upon an offender bear a proper relationship to the overall criminality of the offending behaviour when the offences are viewed in their entirety and having regard to all the circumstances of the case, including circumstances personal to the offender: Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295 at 307 - 308 per McHugh J and Woods ... at 352 per Anderson J. Counsel for the appellant contends, in this respect, that the aggregate sentence imposed was disproportionate, having regard for the early pleas of guilty, customary sentencing standards in respect of offences of this kind and the appellant's antecedents.
When dealing with an appeal against sentence, the Court may not substitute its own opinion for that of a sentencing Judge merely because it would have exercised its discretion differently. It will only interfere where the appellant has demonstrated that the sentencing Judge failed properly to exercise his or her discretion: Lowndes ... at 671 - 672. Error might be inferred in a case in which the result is unjust or unreasonable because it is manifestly excessive: Dinsdale ....
103 It was not in contest there were no appellate authorities on sentencing for the offence in Road Traffic Act s 59(1)(b) with its present maximum penalty without statutory circumstances of aggravation where multiple deaths were occasioned. On the authorities concerning multiple counts of death occasioned since the change to the form of the offence effective 1 January 2005 to which counsel for the respondent drew my attention, all involving sentences imposed after trial, and allowing for the change to the maximum penalty, it is not evident to me, given all of the circumstances I reviewed in relation to ground 2, and allowing for the circumstances of the offenders and the offending in those cases, that a total effective sentence of 30 months immediate imprisonment on two counts of death was manifestly excessive or disproportionate to the total criminality involved. See Eves: total effective sentence of 5 years immediate imprisonment, 3 counts, appeal dismissed; Longbottom: total effective sentence of 3 years 4 months immediate imprisonment; 2 counts; appeal dismissed; and Olive: total effective sentence of 18 months immediate imprisonment; 3 counts; appeal dismissed; at [96] the court characterised the total effective sentence as 'lenient' but 'not plainly unreasonable or unjust'.
105 Although I would grant leave to appeal on all grounds, I would not uphold any of the grounds.
(2006) 80 ALJR 458
(2000) 202 CLR 321
(2008) 49 MVR 259
(2003) 214 CLR 118
(2010) 272 ALR 465
(1999) 195 CLR 665
(1998) 194 CLR 610
(1993) 9 WAR 486
(1990) 4 WAR 538
(2002) 4 VR 457
(2001) 207 CLR 584
(1994) 14 WAR 341
(1997) 189 CLR 295