Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law - Appeal against sentence - Failing to stop after a motor vehicle accident - Failing to report the accident forthwith to the officer in charge of a police station - Attempting to pervert the course of justice - Whether any individual sentence was manifestly excessive

Criminal law - Appeal against sentence - Total effective sentence of 4 years' immediate imprisonment for the offences of failing to stop, failing to report and attempting to pervert the course of justice - Offender currently serving a sentence of 4 years 4 months' immediate imprisonment for possession of a prohibited drug with intent to sell or supply - Term of 4 years ordered to be served cumulatively upon the term of 4 years 4 months - Whether overall effective term of 8 years 4 months infringed the totality principle

Misuse of Drugs Act 1981 (WA), s 6(1)(a)

Road Traffic Act 1974 (WA), s 54, s 55, s 56

Road Traffic Amendment Act (No 2) 2007 (WA), s 20

Sentencing Act 1995 (WA), s 8(2), s 8(4)

Abeyakoon v Brown [2011] WASCA 63; (2011) 211 A Crim R 338

Bahar v The Queen [2011] WASCA 249; (2011) 255 FLR 80

Bellissimo v The Queen (1996) 84 A Crim R 465

Borbil v The State of Western Australia [2007] WASCA 24; (2007) 169 A Crim R 152

Cameron v The Queen [2002] HCA 6; (2002) 209 CLR 339

Clarkson v The State of Western Australia [2006] WASCA 250

Dillon v The State of Western Australia [2010] WASCA 135

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

Gilmour v The State of Western Australia [2008] WASCA 42

Jeffery v The Queen (Unreported, WASCA, Library No 920357, 3 June 1992)

Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616

Librizzi v The State of Western Australia [2006] WASCA 237; (2006) 33 WAR 104

Mallet v Mallet [1984] HCA 21; (1984) 156 CLR 605

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

Norton v The State of Western Australia [2007] WASCA 75

Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610

Pedersen v The State of Western Australia [2010] WASCA 175

Ranford v The State of Western Australia (No 2) [2006] WASCA 243; (2006) 166 A Crim R 451

Rauhina v The Queen [2002] WASCA 91

Royer v The State of Western Australia [2009] WASCA 139; (2009) 197 A Crim R 319

The State of Western Australia v Tran [2008] WASCA 183

Tulloh v The Queen [2004] WASCA 169; (2004) 147 A Crim R 107

Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584

1 BUSS JA: On 12 August 2011, the appellant was sentenced by Stone DCJ (the primary judge) in the District Court, following earlier pleas of guilty, on three counts in an indictment.

2 Count 1 alleged that on 6 May 2010 at Wattle Grove, the appellant, being the driver of a vehicle on a road that was involved in an incident occasioning grievous bodily harm to another person, namely Taryn Rae-Anne King (the victim), failed to stop immediately after the occurrence of the incident and for as long as was necessary to ensure that the victim received all the assistance, including medical aid, that was necessary and practicable in the circumstances (the failing to stop offence), contrary to s 54(3) of the Road Traffic Act 1974 (WA) (the Act).

3 Count 2 alleged that on the same date and at the same place as in count 1, the appellant, being the driver of a motor vehicle on a road that was involved in an incident occasioning grievous bodily harm to the victim, failed to report the incident forthwith to the officer in charge of a police station (the failing to report offence), contrary to s 56(2) of the Act.

4 Count 3 alleged that on 6 May 2010 at Walliston, the appellant, by concealing the true identity of the driver of a motor vehicle, attempted to pervert the course of justice upon his prosecution on a charge of failing to stop and give information and assistance contrary to s 54 of the Act, the attempt to pervert the course of justice being contrary to s 143 of the Criminal Code (WA).

5 The primary judge imposed individual terms of immediate imprisonment, as follows:

6 Initially, his Honour imposed an individual term of 2 years 6 months' imprisonment for count 1, which he said was 'an appropriate term' for that count (ts 36). However, he reduced the term from 2 years 6 months to 2 years in the application of the totality principle (ts 37).

7 The primary judge ordered that the sentence for count 2 be served concurrently with the sentences for counts 1 and 3 and that the sentence for count 3 be served cumulatively on the sentence for count 1. The total effective sentence was therefore 4 years' immediate imprisonment. A parole eligibility order was made.

8 In addition, his Honour ordered that the appellant's driver's licence be disqualified for 18 months cumulative on any other existing disqualifications.

9 The primary judge also ordered that the total effective sentence of 4 years' imprisonment be served wholly cumulatively upon another sentence of 4 years 4 months' immediate imprisonment then being served by the appellant.

10 The other sentence of 4 years 4 months' imprisonment was imposed by Stevenson DCJ on 10 December 2010 following the appellant's conviction, after a trial in the District Court, on one count in an indictment which alleged that on 26 June 2009, at Gosnells, he had in his possession a prohibited drug, namely methylamphetamine, with intent to sell or supply it to another, contrary to s 6(1)(a) of the Misuse of Drugs Act 1981 (WA) (the Drug Dealing Offence). The sentence of 4 years 4 months' imprisonment was back-dated to commence on 22 October 2010, being the date on which the appellant was convicted of the Drug Dealing Offence and taken into custody.

11 The appellant appeals to this court against the primary judge's sentencing decision.

The facts and circumstances of the offending

12 On 6 May 2010, the appellant drove a truck towards an intersection in Wattle Grove. He proceeded to turn right across the path of a bus travelling on another road. The bus swerved to attempt to avoid a collision with the truck, but the rear of the bus collided with the front of the truck. The driver of the bus then lost control of his vehicle, and the bus flipped onto its side and collided with two trees.

13 As the bus crashed, the appellant went to drive away but a witness caused him to stop. The appellant abandoned the truck and fled on foot, without rendering assistance to those on the bus.

14 Many people on the bus were injured. The driver required surgery and spent several weeks in hospital. More than 20 children on the bus suffered bodily harm and 12 of them required treatment in hospital. The victim, who was one of the children injured, suffered grievous bodily harm, namely, serious spinal injuries and a ruptured kidney.

15 On the night of 6 May 2010 (the collision having occurred that afternoon), police attended the appellant's home. The appellant said that one of his employees, Ty-Aaron Baker, had been driving the truck at the time of the collision. As a result, Mr Baker was arrested. He admitted being the driver of the truck at the material time. Also, he admitted fleeing the scene. The police charged Mr Baker with several offences. He appeared in court on four occasions in connection with these offences.

16 However, further inquiries by the police revealed that the appellant was, in fact, the driver of the truck. At the material time, his driver's licence was suspended and he was on bail in relation to the pending proceedings against him for the Drug Dealing Offence.

17 On 21 September 2010, Mr Baker was interviewed again by the police. On this occasion, he admitted having lied about being the driver of the truck. He explained that the appellant (his employer and friend) had asked him to state that he had been the driver.

18 The appellant was then arrested and interviewed again by the police. He made no comment.

19 The primary judge recited the facts and circumstances of the offending.

20 His Honour then noted the appellant's personal circumstances. The appellant was born on 8 January 1978. He was aged 32 at the time of the offending and was 33 when sentenced. He is married with three children aged 10, 8 and 5. The appellant ceased schooling in year 8 and began full-time employment with his father. He has some literacy difficulties. The appellant has worked as a plasterer since leaving school. He commenced his own plastering business at age 19. At the time of the offending the appellant and his wife were under financial pressure. They had lost a large amount as a result of poor investments in the stock market on the advice of an unlicensed broker. The appellant has a history of amphetamine use. This began when he was 18. Upon marrying his wife at the age of 21, he ceased using the drug. However, he recommenced at age 28, after arguing with his wife and as a means of coping with financial stress. The appellant then used amphetamine almost daily. After about three years, he had a naltrexone implant to assist him in ceasing to use the drug.

21 When the appellant committed the offences in question he was suffering from significant stress. The primary judge described some of the stress as 'self-inflicted' (ts 36) in that the appellant was driving a motor vehicle when his driver's licence was suspended and he had been charged with but not yet tried for the Drug Dealing Offence. However, in addition, he was under strain because his business was failing, he was at risk of losing his home and he was concerned for his family.

22 The appellant has a prior criminal record. However, he had not received a custodial sentence until Stevenson DCJ imposed the term of 4 years 4 months' imprisonment for the Drug Dealing Offence. Otherwise, the prior offending related to traffic matters, except for convictions in May 2007 for possessing amphetamine and a smoking utensil and a conviction in September 1998 for possession of cannabis with intent to sell or supply.

23 The primary judge noted that the appellant's offending was mitigated by his pleas of guilty on the fast-track system. However, he said that these pleas were 'merely recognition of the inevitable and so a limited discount should be given' (ts 32).

24 His Honour said that the appellant had not evinced any remorse:

You have facilitated the course of justice by your plea of guilty but you've not demonstrated genuine remorse. You told the author of the pre-sentence report that you'd been threatened at the scene, that your employee had offered to lie for you; whereas that's to the contrary on the facts that are now admitted by you and what I'd read in the prosecution brief as to how it came about - that you approached him, and asked him to lie for you.

The reality is, it seems to me, that you were very worried about the consequences of going to prison immediately because of your breach of bail on the very serious drugs matter and driving whilst under suspension and, to date, you've shown no remorse or victim empathy (ts 32).

25 After referring to relevant sentencing factors and some decisions of this court, the primary judge told the appellant that when the collision occurred he had demonstrated no regard for the victims. Indeed, he had shown 'a callous disregard for the safety and welfare of others and then set out to lie to authorities about [his] involvement in the accident' (ts 34).

26 His Honour noted that the appellant was not being punished for his driving in that it had not been suggested that he had caused the collision (ts 35).

27 The primary judge said that the appellant's offending was 'not a spur of the moment response', but was 'a premeditated, planned and deliberate deception' (ts 35):

After your involvement in the collision, you ... called Baker and you told him that the work truck had been in an accident and you asked if he would come up to Kalamunda. You went to your house and you asked him if he would take the blame for the accident and he agreed.

You spoke to police later that evening, some hours after the collision, and you gave a false statement implicating Baker. And so the charge reflects a concerted effort on your part to avoid the consequences from the very beginning. From attempting to drive away from the scene to convincing Baker to take responsibility, you went to great lengths to avoid detection, and that was all at the expense of the welfare of others.

And the deception was carried through to the extent of deceiving police and the courts. And Baker made four appearances in the courts to answer false charges before the matter finally came to light (ts 35).

28 His Honour decided that, in the case of each offence, a term of imprisonment to be served immediately was the only appropriate disposition. He formulated individual sentences for counts 1, 2 and 3 and then turned his attention to totality. His Honour appreciated that, in applying the first limb of the totality principle in the context of counts 1, 2 and 3, it was necessary to take into account the existing sentence the appellant was serving for the Drug Dealing Offence. After deciding upon a total effective sentence of 4 years' immediate imprisonment in relation to counts 1, 2 and 3, his Honour ordered that that term be served wholly cumulatively upon the existing term. A parole eligibility order was made.

The facts and circumstances of the Drug Dealing Offence

29 The facts and circumstances of the Drug Dealing Offence were as follows.

30 The appellant and his co-accused, Dragan Panic and Nicole Brown, were convicted, after a 13-day trial before Stevenson DCJ and a jury, of possession of methylamphetamine with intent to sell or supply it to another.

31 The offending related to 223 g of methylamphetamine with a purity of 12% (ts 950).

32 The sentencing remarks of Stevenson DCJ indicate that Mr Panic had obtained the drug and had agreed to make it available to Ms Brown. However, Ms Brown was unable to collect the drug and Mr Panic agreed to arrange for it to be delivered to her. Mr Panic procured the appellant to act as the courier.

33 At all material times, Mr Panic, Ms Brown and the appellant were under surveillance by police.

34 The appellant and Ms Brown were arrested when the appellant drove his black Toyota Hilux vehicle to Ms Brown's workplace and made contact with her. The police searched the appellant's vehicle and located the methylamphetamine in the armrest on the driver's side. The appellant denied any knowledge of the drug and sought to distance himself from Mr Panic and Ms Brown.

35 Stevenson DCJ rejected the appellant's evidence about what he told the police when he was apprehended. Also, his Honour rejected the appellant's evidence as to the circumstances in which he came to meet Ms Brown on the day in question.

36 However, his Honour accepted, for the purpose of sentencing, that the appellant had been 'used by Mr Panic as a mule to courier the drugs to Ms Brown on his behalf' (ts 964). His role in the offending was less culpable than that of Mr Panic and Ms Brown. Nevertheless, his Honour noted:

[The appellant] obviously appreciated that he was being used and he was prepared in the circumstances to take the risk, which is a little surprising, because at the time the evidence is that he did not in fact have a valid motor driver's licence (ts 965).

37 The methylamphetamine had a value, in the form in which it was seized, of about $50,000. If the drug had been diluted before distribution to users, its value would have been up to about $150,000. However, Stevenson DCJ found that the methylamphetamine was of 'a purity which is found at street level, so the opportunity [to dilute the drug] was not attractive' (ts 966).

38 As I have mentioned, his Honour sentenced the appellant to 4 years 4 months' immediate imprisonment, and ordered that the sentence be back-dated to 22 October 2010.

39 Initially, the appellant relied on four grounds of appeal. One of the grounds (ground 3) was abandoned shortly before the hearing.

40 Ground 1 alleges that the primary judge erred in law by failing 'to appropriately take into account' the appellant's pleas of guilty in determining the appropriate sentence.

41 Ground 2 alleges that the individual sentences were manifestly excessive.

42 Ground 4 alleges that the appellant's 'total sentence overall was disproportionate to the total criminality'.

43 On 20 December 2011, Mazza JA granted leave to appeal on ground 4 and referred the application for leave to appeal on grounds 1 and 2 to the hearing of the appeal.

44 Ground 1 alleges that the primary judge made an error of law in that he failed 'to appropriately take into account' the appellant's pleas of guilty.

45 At the hearing of the appeal, counsel for the appellant said that ground 1 was 'in practical terms ... subsumed by grounds 2 and 4 because the [primary] judge did clearly have regard to the plea of guilty, but didn't quantify the discount' (ts 2). She added that there was 'no point' in her 'talking about ground 1 at all' (ts 2).

46 However, counsel for the appellant refused to abandon ground 1. She said, in response to a question from the court:

No, it's not abandoned, your Honour, because we don't know why, on our submission, each of the individual sentences were manifestly excessive, culminating in a total sentence that was manifestly excessive and one of the reasons may be that he did not give sufficient weight to the plea of guilty, but it's a dry argument (ts 2).

47 It may be a 'dry argument', as counsel for the appellant maintained, but her refusal to abandon ground 1 means that it remains necessary for this court to deal with it.

48 By s 8(2) of the Sentencing Act 1995 (WA), a plea of guilty by an offender is a mitigating factor and the earlier in proceedings that it is made, or indication is given that it will be made, the greater the mitigation.

49 It is well-established that, in all but the most exceptional cases, a plea of guilty will result in a reduction of the sentence that would otherwise have been imposed. See Moody v French [2008] WASCA 67; (2008) 36 WAR 393 [35] (Steytler P, Wheeler, McLure & Buss JJA).

50 By s 8(4) of the Sentencing Act, where a court reduces the sentence it would otherwise have imposed on an offender because of a mitigating factor (including a plea of guilty), the court must state that fact in open court.

51 However, a failure to comply with s 8(4), by omitting to state in open court that a reduction has been made, is not an appealable error. Non-compliance with s 8(4) does not invalidate the sentence. See Royer v The State of Western Australia [2009] WASCA 139; (2009) 197 A Crim R 319 [59] (Owen JA).

52 A sentencing judge is not obliged to specify the amount or the percentage by which a term of imprisonment has been reduced to reflect a plea of guilty. See Clarkson v The State of Western Australia [2006] WASCA 250 [31] (McLure JA); Royer [59].

53 In the present case, the primary judge made several references in his sentencing remarks to the appellant's pleas of guilty (ts 32, 36, 37). He noted that the pleas were on the fast-track system (ts 32).

54 His Honour said that the pleas of guilty were to the appellant's credit and that they were a mitigating factor for which the appellant was entitled to a reduction in the sentence that would otherwise have been imposed (ts 32).

55 The primary judge then observed, however, that the pleas of guilty were 'merely recognition of the inevitable' and, in consequence, 'a limited discount should be given' for them (ts 32). It was reasonably open to his Honour to make that observation and, in the circumstances, to give a 'limited discount'. The State's case against the appellant was strong and he had not demonstrated remorse.

56 In Cameron v The Queen [2002] HCA 6; (2002) 209 CLR 339, Gaudron, Gummow and Callinan JJ explained the rationale for the rule that a plea of guilty may be taken into account in mitigation:

[T]he issue is to what extent the plea is indicative of remorse, acceptance of responsibility and willingness to facilitate the course of justice [22].

57 In Bahar v The Queen [2011] WASCA 249; (2011) 255 FLR 80, McLure P (Martin CJ & Mazza J agreeing) referred to Cameron and then said:

The practical consequence of the fact that a plea of guilty is mitigatory is that, all other sentencing considerations being equal (which they usually never are), an offender who pleads guilty will ordinarily receive a lesser sentence than a co-offender who pleads not guilty. However, as explained by the High Court in Cameron, it is not the mere plea of guilty that produces that outcome but rather the fact that the plea supports an inference of remorse, acceptance of responsibility and a willingness to facilitate the course of justice [41]. (emphasis added)

58 Ground 1 is, in substance, a complaint about the attribution of weight.

59 An alleged failure by a sentencing judge to give any or adequate weight, or a complaint that a sentencing judge gave excessive weight, to a relevant sentencing consideration will only constitute an express appealable error if it amounts to a failure to exercise the discretion conferred on the judge. See Mallet v Mallet [1984] HCA 21; (1984) 156 CLR 605, 614 (Gibbs CJ); Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 [26] (Gaudron & Gummow JJ); Pedersen v The State of Western Australia [2010] WASCA 175 [37] (Buss JA, McLure P & Mazza J agreeing). A complaint about the attribution of weight to a particular sentencing factor therefore does not ordinarily give rise to an error that enlivens an appellate court's jurisdiction to intervene.

60 In the present case, the primary judge took into account the appellant's pleas of guilty. He did not specify the amount or percentage of the discount, but he was not bound to do so.

61 There is no reasonable basis for concluding that the weight which the primary judge accorded to the pleas of guilty amounted, in substance, to a failure to exercise the sentencing discretion.

63 Ground 2 alleges that the individual sentences imposed by the primary judge were manifestly excessive.

64 A ground of appeal which asserts that a sentence is manifestly excessive asserts the existence of an inferred error. It is necessary, in determining whether a sentence is manifestly excessive, to examine it from the perspective of the maximum sentence prescribed by law for the relevant offence, the standards of sentencing customarily observed with respect to that offence, the place which the criminal conduct occupies on the scale of seriousness of offences of the kind in question, and the personal circumstances of the offender.

65 The guidance afforded by comparable cases is flexible rather than rigid. They do not fix an upper or lower limit. The mere fact that a sentence is within the range of other sentences imposed for similar offences does not necessarily establish that there was an appropriate exercise of the sentencing discretion in the particular case. Similarly, the mere fact that a sentence is outside that range does not necessarily establish that the exercise of the sentencing discretion in the particular case miscarried.

The merits of ground 2: the maximum penalties

(a) the failing to stop offence is 14 years' imprisonment, and a driver's licence disqualification for such period as the court thinks fit (s 54(3) and s 54(4) of the Act);

(b) the failing to report offence, is 10 years' imprisonment and a driver's licence disqualification for not less than 12 months (s 56(2) of the Act); and

(c) attempting to pervert the course of justice is 7 years' imprisonment (s 143 of the Criminal Code).

The merits of ground 2: the failing to stop offence and the failing to report offence

67 The maximum penalties for the failing to stop offence and the failing to report offence were increased significantly in 2008. See s 20 of the Road Traffic Amendment Act (No 2) 2007 (WA), which commenced on 15 March 2008. The amending Act repealed the existing s 54, s 55 and s 56 of the Act and inserted replacement s 54, s 55 and s 56 to reorder and reorganise the provisions so as to improve their clarity, in addition to increasing the applicable penalties.

68 Since the maximum penalties were increased, a sentencing range for these offences has not been established. Any cases dealing with sentences imposed before the increases in the maximum penalties are of little or no value for the purpose of comparison.

69 Neither counsel for the appellant nor counsel for the State was able to refer the court to any relevant sentencing decision on the failing to stop offence or the failing to report offence, apart from Abeyakoon v Brown [2011] WASCA 63; (2011) 211 A Crim R 338. Both counsel acknowledged, correctly, that this case was not comparable.

70 In Abeyakoon, this court heard an appeal against sentence by an offender who was convicted of four traffic offences committed on 9 November 2008, including the failing to stop offence.

71 The salient facts of Abeyakoon were as follows. The offender and a friend went to a hotel to celebrate the friend's birthday. They arrived at about 1.00 pm and departed at about 5.00 pm. During that period the offender drank about six full strength stubbies of beer. Upon leaving the hotel, he went to the friend's home and had something to eat. The offender then went to sleep. At about 9.00 pm he awoke. He went outside, got into his motor vehicle and set off on the 15-minute drive to his home. During the journey, the offender drove through a red traffic light at an intersection, at about 60 km an hour, and collided with three other vehicles. He alighted from his vehicle after it came to a stop. The offender said the scene 'looked like a war zone'. At that stage, he was not fully aware that he had been the cause of the accident. He was dazed and confused. After the offender alighted from his vehicle, someone came towards him and behaved in an 'aggressive and abrupt' manner. The offender panicked and left the scene. He telephoned his parents or brother and said that he had been in an accident. His parents or brother informed the police. The offender then returned to the scene after having spoken with the police. He provided a sample of his breath for a preliminary blood alcohol concentration test. At the time of the accident he had a blood alcohol level of 0.059%. The offender was charged with and pleaded guilty to four offences.

72 A magistrate imposed a sentence of 12 months' immediate imprisonment and a driver's licence disqualification for the failing to stop offence. Simmonds J dismissed the offender's appeal. This court (McLure P, Pullin JA & Hall J) allowed his further appeal.

73 McLure P, Pullin JA and Hall J said that the circumstances showed a very low degree of culpability:

The appellant was not speeding at the time of the offences. He was travelling at the speed limit, which would have been permissible if he had not travelled through against [sic] a red light. He had consumed alcohol, but after consuming alcohol he had had something to eat and had then gone to sleep for three hours before rising and commencing his journey home. He mistakenly thought that more time had passed since his last drink than was the reality. There was no finding that alcohol caused the incident. He did not deliberately choose to run the red light. All indications are that he did not notice that the light was red. He had travelled through another intersection only 150 metres before the intersection where the accident happened and the lights at that intersection were green for the appellant. The only inference open was that he was momentarily inattentive to the lights facing him at the next intersection and that he travelled through it against the red lights because of that moment of inattention. The magistrate had no basis for concluding otherwise. In all other respects the appellant's personal circumstances were in his favour. He was employed and had no material criminal record [37].

74 The offender was resentenced on the failing to stop offence to, relevantly, 9 months' imprisonment, suspended for 12 months.

75 The failing to stop offence committed by the appellant in the present case was more egregious than the offence committed in Abeyakoon. Although the offender in Abeyakoon left the scene of the accident, this was explicable, in part, by his confusion and by his perception that he was at risk of being assaulted if he remained. Nevertheless, the offender returned to the scene and submitted to a breath test. Also, the personal circumstances of the offender in Abeyakoon were more favourable than those of the present appellant. Further, the offender in Abeyakoon had the benefit of greater mitigation than the present appellant.

76 The appellant's offending in relation to the failing to stop offence was serious. He must have known that it was likely that people on the bus would have been injured. The appellant fled the scene on the basis of his belief that, if he was apprehended, he would be sent to prison immediately for driving whilst his licence was suspended and for breaching his bail in relation to the Drug Dealing Offence. His conduct in leaving the scene and failing to render assistance demonstrated a callous disregard for the safety and welfare of others. He showed no remorse or victim empathy either at the time of the collision or when sentenced.

77 The appellant's offending in relation to the failing to report offence was also serious. The consequences of the appellant's failure to report the incident forthwith to the officer in charge of a police station were exacerbated by his conduct in fleeing the scene and wilfully deceiving the police as to his role in the accident.

78 However, care must be taken to ensure that the appellant is not punished more than once for identical aggravating factors or identical exacerbating consequences which are attributable to the same conduct. See Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 [40] (McHugh, Hayne & Callinan JJ) where it was held that, to the extent that an offender is convicted of offences containing common elements, he or she must not be punished twice for the commission of the elements that are common. See also Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616 [27], [34] (Gummow, Callinan & Heydon JJ), [38] (Kirby J).

79 In my opinion, the failing to stop offence and the failing to report offence committed by the appellant, while serious, were not within the upper range of seriousness for offences of the kind in question. This was not a hit and run accident. The appellant did not cause the collision. Fortunately, it occurred during daylight in a Perth suburb and, as a result, there were numerous bystanders who were available to assist, and did assist, the occupants of the bus immediately. One or more of the bystanders summoned medical assistance, including ambulances, and the police. None of the injuries suffered by the occupants of the bus was exacerbated by the appellant's failure to stop and render assistance. The appellant abandoned the truck at the scene and, but for his attempt to pervert the course of justice for which he was separately charged and punished, the police would easily have been able to ascertain his identity.

80 I am persuaded that when all of the relevant facts and circumstances are evaluated and weighed from the perspective of the maximum available penalties, the objective seriousness of the offending and the appellant's personal circumstances (including his fast-track pleas of guilty), and in the context of the necessity to avoid punishing the appellant more than once for identical aggravating factors and identical exacerbating consequences which are attributable to the same conduct, the individual sentences of 2 years 6 months' immediate imprisonment, reduced to 2 years in the application of the totality principle, for count 1 (being the failing to stop offence) and 18 months' immediate imprisonment for count 2 (being the failing to report offence) were plainly unreasonable or unjust.

81 Ground 2 has been made out in relation to the failing to stop offence and the failing to report offence.

The merits of ground 2: attempting to pervert the course of justice

82 The offence of attempting to pervert the course of justice strikes at the heart of the criminal justice system. General deterrence is an important sentencing factor. See Jeffery v The Queen (Unreported, WASCA, Library No 920357, 3 June 1992) (10); Rauhina v The Queen [2002] WASCA 91 [16]; Norton v The State of Western Australia [2007] WASCA 75 [37]; Gilmour v The State of Western Australia [2008] WASCA 42 [17]. There is no tariff for the offence. See Rauhina [16]; Ranford v The State of Western Australia (No 2) [2006] WASCA 243; (2006) 166 A Crim R 451 [36]; Norton [37]; Dillon v The State of Western Australia [2010] WASCA 135 [29]. The offence is ordinarily punished by a term of immediate imprisonment. See Librizzi v The State of Western Australia [2006] WASCA 237; (2006) 33 WAR 104 [168].

83 In Ranford, Roberts-Smith JA reviewed various authorities as to the sentences which have been imposed for the offence of attempting to pervert the course of justice. All of the authorities reviewed, with the exception of Rauhina, concerned allegations that the offender in question had given a false name to the police to avoid his or her being charged with an offence. Roberts-Smith JA noted that his review of the authorities involving the giving of a false name to avoid the consequences of traffic offences indicated that, where imprisonment had been imposed, sentences had ranged from around 6 to 17 months before the introduction of the transitional provisions in the Sentencing Legislation Amendment and Repeal Act 2003 (WA), and around 4 to 11 months after their introduction [36]. His Honour then added:

Clearly these are not fixed starting and ending points of sentences which may be imposed, but are general indicia only, for purposes of broad comparison [36].

84 Roberts-Smith JA observed that, in addition to all of the facts and circumstances of the particular case, some of the factors which bear upon the seriousness of an attempt to pervert the course of justice in the context of an offender who gives a false name to the police to avoid his or her being charged with an offence include:

(a) the nature and seriousness of the consequences sought to be avoided (as for example, whether to avoid demerit points, or to avoid conviction);

(b) the period of time over which the deception occurred and whether it was merely allowed to continue or was repeated or persisted in and what else was done to maintain it;

(c) whether the deception involved some other person, either as an accomplice or a victim;

(d) whether there was any threat or violence involved;

(e) whether the deception caused diversion of investigative, police or court resources;

(f) whether the offence was a 'spur of the moment' response or was premeditated, and if so, the degree of premeditation, planning and persistence;

(g) whether the deception was carried through to the extent of deceiving a court, or the creation of false public records, and if so, the extent and consequences of that [36].

85 In Rauhina, the appellant was charged with and convicted of four offences, namely:

(b) entering a residence with intent to commit an offence therein, with the aggravating circumstance alleged of doing bodily harm to a resident;

(c) stealing a motor vehicle with threats of actual violence; and

(d) attempting to pervert the course of justice in relation to the appellant's prosecution for the offences in pars (a), (b) and (c) above.

86 The appellant pleaded guilty to the first count and, after a trial, was convicted on the other counts, with the exception that he was acquitted in relation to the circumstance of aggravation alleged in the second count. The appellant was sentenced to 9 months' immediate imprisonment on the first count, 3 years' immediate imprisonment on each of the second and third counts (to be served concurrently with each other and with the sentence on the first count), and 3 years' immediate imprisonment on the fourth count (to be served cumulatively). The total effective sentence was therefore 6 years. An appeal against sentence was dismissed.

87 The material facts relating to the fourth count (that is, attempting to pervert the course of justice) were that about two weeks after the commission of the other offences, the appellant telephoned the complainant and threatened him with violence if he did not withdraw the charges the subject of the first, second and third counts. The appellant had previous convictions for breach of a violence restraining order and for assault. Although the sentencing judge accepted that he was a hard-working family man, his Honour was of the view that he had shown no remorse.

88 In the Court of Criminal Appeal, Wheeler J (Malcolm CJ & McKechnie J agreeing) said:

In the present case, the threat was made approximately two weeks after the other offences; this is in contrast with the common situation in relation to traffic offences, where a false name may be given in panic on the spur of the moment by a person who is detected driving unlawfully. It was a threat made to shield the guilty person, the appellant himself, and it was a threat of violence made to a person who had already been the subject of a violent assault by the appellant. The threat was made to a person who was the central witness in the case against the [appellant]. In my view, those factors justified the learned trial Judge in reaching the view that this was one of the more serious examples of such an offence. The sentence of 3 years' imprisonment is not a disproportionate one, having regard to those circumstances [17].

89 The observation, in Rauhina, that the appellant had not demonstrated that the sentence was manifestly excessive was, with respect, plainly correct. The sentence of 3 years' imprisonment (which equates to 2 years after the introduction of the transitional provisions in the Sentencing Legislation Amendment and Repeal Act 2003) was within the appropriate sentencing range, although towards the bottom of that range.

90 In Norton, the appellant was convicted, on her plea of guilty, on, relevantly, a count in an indictment which alleged that she had attempted to pervert the course of justice by falsely representing to police officers that her motor vehicle had been stolen. The offence was part of a deliberate scheme which the appellant entered into with two other people (being a juvenile co-offender and an adult offender, Dash) to deceive and defraud an insurance company. The offending did not occur immediately after the adoption of the scheme (or on the 'spur of the moment'). There was sufficient time between the adoption of the scheme and its implementation for the appellant to have reflected upon the gravity of the conduct which she had decided to carry out. Although it was the juvenile co-offender who suggested the scheme to the appellant, the appellant (who was aged 25) readily agreed to it. The appellant signed and gave to the police a written statement that was false in several particulars. When she signed the statement, the appellant must have known that, on the basis of her statement, someone, probably Mr Dash, would be charged with stealing her vehicle. Indeed, on the basis of the appellant's statement, Mr Dash was charged with that offence. He made several appearances in court in answer to the charge before it was listed for a trial to commence on 2 June 2006. In late April 2006, about 17 months after the appellant gave her vehicle to Mr Dash and the juvenile co-offender as part of the scheme to deceive and defraud the insurance company, Mr Dash confessed. The appellant did not herself disclose the scheme to the police until 26 April 2006, when she was confronted with Mr Dash's confession.

91 The appellant in Norton had very favourable personal circumstances. The matters of mitigation included:

(c) the appellant was the sole carer for her 6-year-old child;

(d) the appellant showed some remorse after she was confronted with Mr Dash's confession;

92 The sentencing judge imposed a term of 18 months' immediate imprisonment (after the introduction of the transitional provisions in the Sentencing Legislation Amendment and Repeal Act 2003) for attempting to pervert the course of justice. This court, by a majority (Steytler P & Buss JA; Wheeler JA dissenting), dismissed the appellant's appeal against this sentence. The majority was of the opinion that the term of 18 months' immediate imprisonment was severe, but was, nevertheless, within the appropriate sentencing range.

93 In Dillon, the appellant was convicted, on his pleas of guilty, on four counts in an indictment and five charges in a notice under s 32 of the Sentencing Act. Three of the counts in the indictment alleged offences of possession of a prohibited drug with intent to sell or supply it to another. The other count alleged the offence of attempting to pervert the course of justice. The offences in the s 32 notice comprised three charges of driving under suspension, one charge of possession of stolen or unlawfully obtained property and one charge of driving a motor vehicle displaying a false number plate.

94 On 15 November 2008, the appellant was driving his motor vehicle near Kalgoorlie. He was stopped by police. The police searched the vehicle and found various quantities of prohibited drugs. On 15 November 2008, the appellant was charged with the three drug dealing counts in the indictment and was released to bail.

95 In the following weeks, the police intercepted the appellant's telephone. On numerous occasions, the appellant discussed with other people a plan to evade criminal responsibility for the drug dealing charges by procuring someone else to state that the drugs found by the police were not the appellant's.

96 On 12 January 2009, the appellant met with an acquaintance, Marchese. The appellant asked Mr Marchese if he would take responsibility for the prohibited drugs found in the appellant's vehicle. Mr Marchese agreed and the appellant offered to give him, in return, a vehicle valued at about $10,000.

97 The appellant arranged for Mr Marchese to attend the office of the appellant's solicitor on the following day. The solicitor prepared a statutory declaration which Mr Marchese signed before a justice of the peace on 13 January 2009. In the statutory declaration Mr Marchese asserted that he had hidden the drugs in question in the appellant's vehicle and that the appellant knew nothing about them.

98 On 16 January 2009, the appellant took Mr Marchese to the Kalgoorlie police station. Mr Marchese entered the police station with the statutory declaration and gave it to the police. Shortly afterwards, Mr Marchese was interviewed by two detectives. During the interview, Mr Marchese admitted that the statutory declaration was false and that he had agreed to take criminal responsibility after being approached by the appellant.

99 The appellant's pleas of guilty in Dillon were on the fast-track system. The sentencing judge imposed a term of 2 years' imprisonment for the offence of attempting to pervert the course of justice. That sentence was ordered to be served cumulatively upon a term of 4 years 6 months for one of the drug dealing counts. The total effective sentence was 6 years 6 months' imprisonment.

100 This court dismissed the appellant's appeal. It held, relevantly, that the sentence of 2 years' imprisonment for attempting to pervert the course of justice was not manifestly excessive.

101 In the present case, the offence of attempting to pervert the course of justice committed by the appellant was very serious. This is apparent from the following:

(a) There was some planning and premeditation. After he fled from the scene and before he approached Mr Baker, the appellant had time to reflect on what he had already done and the proper course for him then to adopt.

(b) The appellant involved an innocent third party, namely Mr Baker, who now also has a conviction for the same offence. At all material times, Mr Baker was the appellant's employee. Although the appellant and Mr Baker were friends, Mr Baker was in a subservient position to the appellant in the context of their employment relationship.

(c) The appellant's deceit remained undisclosed for about 4 1/2 months. During this period Mr Baker appeared in court on four occasions. The resources of the court and the police were wasted.

(d) The deceit was revealed by Mr Baker. During the period of about 4 1/2 months, the appellant did not reconsider his position and recant. The only reasonable inference is that, at all material times, the appellant wanted the court and the police to be wilfully misled and Mr Baker to be wrongly convicted of and punished for the failing to stop offence and the failing to report offence.

102 The appellant's offending was more serious than offending involving the giving of a false name to the police in connection with an attempt to pervert the course of justice by evading a driver's licence suspension or disqualification, or by shirking responsibility for a traffic offence. The appellant attempted to pervert the course of justice in connection with the pending proceedings against him for the Drug Dealing Offence. He believed that if his identity as the driver of the truck was revealed to the police then he would be sent to prison immediately for breaching his bail (and, also, for driving whilst his licence was suspended).

103 The personal circumstances of the offender in Norton were significantly more favourable, for sentencing purposes, than the present appellant's. Also, unlike the appellant, the offender in Norton had shown some remorse.

104 The failing to stop offence and the failing to report offence, and the consequences for the present appellant of his breach of bail and his driving under suspension, which the appellant sought to evade, were, in combination, less serious than the drug offences which the offender in Dillon sought to evade. On the other hand, the deception in Dillon continued for only a very brief period and a court was not misled, whereas in the present case the deception continued for about 4 1/2 months and a court was misled on four occasions.

105 As I have mentioned, there is no tariff for this kind of offence and the appropriate sentencing disposition in a particular case will, of course, necessarily turn on its own facts and circumstances.

106 The appellant was aged 32 at the time of the offending. He was not youthful for sentencing purposes. The only significant mitigating factor was his fast-track plea of guilty.

107 I am not persuaded that the individual sentence of 2 years' immediate imprisonment imposed for attempting to pervert the course of justice was beyond the range open on a sound exercise of the sentencing discretion. An evaluation of the sentence of 2 years, in the context of the maximum available penalty, the objective seriousness of the appellant's offending, the general standards of sentencing for this kind of offence, the appellant's personal circumstances and his fast-track plea of guilty, does not indicate that the sentencing outcome was plainly unreasonable or unjust.

108 Ground 2 fails in relation to the offence of attempting to pervert the course of justice.

109 Ground 4 alleges in essence that the appellant's 'total sentence overall', that is, the sentence of 8 years 4 months' imprisonment (being the sentence which resulted upon the primary judge ordering that the total effective sentence he imposed, namely 4 years, be served wholly cumulatively upon the sentence imposed by Stevenson DCJ, namely 4 years 4 months), infringed the first limb of the totality principle.

110 A complaint that a sentencing judge has infringed the totality principle involves an allegation of inferred error. The first limb of the totality principle requires that the total effective sentence imposed on an offender who has committed multiple offences must bear a proper relationship to the overall criminality involved in all of the offences (including those, if any, in respect of which the offender is still serving a term of imprisonment), viewed in their entirety, and after having regard to all relevant circumstances, including those referable to the offender personally (and including, for example, the desirability of accommodating any wish to rehabilitate), and the total effective sentences imposed in comparable cases.

111 The maximum penalty for the offence of possession of a prohibited drug with intent to sell or supply it to another is 25 years' imprisonment or a fine of $100,000 or both. See s 34(1)(a) of the Misuse of Drugs Act.

112 The major sentencing considerations for offences of dealing or trafficking in dangerous drugs of addiction are general and personal deterrence. See Bellissimo v The Queen (1996) 84 A Crim R 465, 471. The weight of the drugs in question is not, generally, the chief factor to be taken into account in fixing a sentence, but it is a matter of importance. Other matters to be taken into account include the nature and level of the offender's participation in drug dealing or trafficking within a particular organisation or generally, and whether the offending was committed for commercial gain. See Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584 [67] - [70]; Tulloh v The Queen [2004] WASCA 169; (2004) 147 A Crim R 107 [50]; Borbil v The State of Western Australia [2007] WASCA 24; (2007) 169 A Crim R 152 [52]. The degree of purity is often regarded as significant. See The State of Western Australia v Tran [2008] WASCA 183 [9]. Matters personal to an offender will almost always be given reduced weight. See Bellissimo, (469); Tulloh [12], [43], [46].

113 In the present case, neither the appellant nor the State challenged the sentence of 4 years 4 months' imprisonment imposed by Stevenson DCJ for the Drug Dealing Offence. No appeal was brought.

114 In my opinion, the appellant's 'total sentence overall', being 8 years 4 months' imprisonment, does not bear a proper relationship to the overall criminality involved in all of the offences (namely, the failing to stop offence, the failing to report offence, attempting to pervert the course of justice and the Drug Dealing Offence), viewed together, and having regard to all relevant circumstances and sentencing factors. It was not reasonably open to the primary judge to order that the total effective sentence of 4 years' imprisonment which he imposed be served wholly cumulatively upon the existing sentence of 4 years 4 months' imprisonment for the Drug Dealing Offence. The existence of error should be inferred from the sentencing outcome.

The result of the appeal and the re-sentencing of the appellant

116 I would refuse leave to appeal on ground 1 and grant leave on ground 2. The appeal should be allowed and the sentencing decision of

the primary judge should be set aside. This court has the materials necessary to re-sentence the appellant.

117 Sentences for the failing to stop offence and the failing to report offence must be imposed which are commensurate with the seriousness of the offences. After taking into account the maximum available penalties and all other relevant circumstances and sentencing factors and reducing, on account of the fast-track pleas of guilty, the sentences I would otherwise have imposed, I would sentence the appellant to 18 months' imprisonment for the failing to stop offence (count 1) and 6 months' imprisonment for the failing to report offence (count 2).

118 The appeal against the individual sentence of 2 years' imprisonment for the offence of attempting to pervert the course of justice (count 3) has failed, and that sentence should stand.

119 The total criminality of all of the appellant's offending (that is, the failing to stop offence, the failing to report offence, attempting to pervert the course of justice and the Drug Dealing Offence) would be properly marked, and all relevant sentencing principles would be satisfied, by a total effective sentence of 6 years 4 months' imprisonment. This result should be achieved by ordering that the new sentences for counts 1 and 2 and the sentence for count 3 be served concurrently with each other, but cumulatively upon the sentence for the Drug Dealing Offence.

120 The appellant should remain eligible for parole.