4 The appellant was charged on indictment in the District Court with one count of dangerous driving occasioning death contrary to s 59(1)(b) of the Road Traffic Act 1974 (WA) (RTA). The charge arose out of a collision which occurred on 17 October 2012 on the Rio Tinto Rail Access Road (the Access Road) which stretches between Karratha and Tom Price.

5 The appellant was convicted by verdict of a jury on 14 August 2014. On 12 September 2014, he was sentenced to 2 years 2 months' immediate imprisonment with eligibility for parole. He was also disqualified from holding or obtaining a driver's licence for 5 years.

6 The appeal against conviction relies upon two grounds. Ground 1 alleges that the prosecutor infringed the appellant's right to silence. Ground 2 alleges a miscarriage of justice by reason of his Honour's 'failure' to direct the jury as to the defence contained in s 59B(6)(b) of the RTA_._

7 The question of leave to appeal with respect to these grounds was referred to the hearing of the appeal.

8 The Access Road runs more or less north to south, between Karratha and Tom Price (exhibit 2). It is predominantly gravel. A permit from Rio Tinto is required to use the road. Both the appellant and the deceased had such a permit. A person seeking a permit must watch a training video. The appellant had watched the training video. The video warns about the hazards of driving on gravel, including the hazard caused by dust. Dust is described in the video as a 'major visibility hazard'. It is suggested that drivers caught behind a road train should 'just be patient' and 'sit back out of his dust, or pull over, have a brew and wait for him to go' (exhibit 15). In addition, the appellant had done some gravel road training and undergone occupational health and safety training, including training specifically directed to driving on the Access Road (ts 260).

9 Apart from the permit system, the use of the road is governed by a number of safety regulations, including a maximum speed limit of 80 km per hour and a requirement that headlights must be turned on at all times.

10 The collision occurred on a gravel stretch of the Access Road, 144.3 km from the North West Coastal Highway and approximately 14.4 km north of a Metrocount traffic machine that had been deployed by a road inspector at the Fortescue River crossing (ts 166).

11 The road surface at the crash site was approximately 9 to 10 m wide between the windrows at the edges of the road (ts 194). This is wide enough for two large vehicles to pass each other. By comparison, ordinary metropolitan roads are 7.5 m wide (ts 195). The roadway was, at the point of collision, relatively straight, flat and level (ts 193). Approximately 400 m from the collision site, travelling north, the road takes a left-hand bend. At approximately 275 m from the site, the road straightens before going into a slight right-hand bend. At approximately 150 m from the site, the road straightens once again (ts 200 - 201).

12 On 17 October 2012, the appellant was employed as a trades assistant rigger with Powerlines Plus at Wickham. He had recently returned from a period of leave. It was not alleged that he was fatigued. The appellant's supervisor instructed him to pick up a cable stand from Tom Price and take it back to Wickham. The vehicle he used for this task was a heavy 10-tonne Iveco trayback truck. The appellant set off at about 7 or 7.30 am, using the Access Road. He arrived at Tom Price at about midday, loaded the cable stand and began the return trip to Wickham, travelling north on the Access Road.

13 Ahead of the appellant was a Toyota Hilux utility being driven by Christopher John Polkinghorne. In front of Mr Polkinghorne was a road train being driven by Alfred Harold Armer.

14 Mr Polkinghorne, who had been driving at approximately 80 km per hour, had to slow down because of the dust created by Mr Armer's vehicle. He testified that there was not a lot of wind, so he sat back off the dust in order to see the road (ts 84).

15 Mr Polkinghorne said that he noticed the lights of a truck behind him. That truck was, according to the State, the vehicle being driven by the appellant. Mr Polkinghorne noticed the truck behind him for 5 to 10 minutes before it eventually overtook him. He estimated that the speed at which the appellant's truck overtook him was approximately 60 to 70 km per hour (ts 85). As the appellant's truck was 'three-quarters' past him, he could not see anything because of the dust and so he stopped his utility (ts 85).

16 After approximately a minute, he resumed his journey (ts 85 - 86). Further up the road, Mr Polkinghorne noticed a cloud of dust in front of him and a truck (the appellant's) on the wrong side of the road. He stopped his vehicle and saw that the truck had collided with a silver utility. After seeing that the driver of the silver utility was injured, he attempted to telephone emergency services. That call was made at approximately 2.45 pm (ts 87).

17 Mr Armer testified that, because of the dust billowing behind his vehicle, he was unable to see behind him and was unaware of the collision. Mr Armer, who has had a lot of experience driving on gravel roads and was familiar with the Access Road, accepted that on occasions dust can be blown up from the road on a very windy day or as a result of willy-willies. On the day in question he did not think there was a lot of wind.

18 Travelling behind Mr Polkinghorne's vehicle was John Thorning. He testified that he was driving on the Access Road in a northerly direction in a Toyota Hilux with an extra cab. As he left Tom Price, he noticed a truck (the appellant's) in front of him. Once the vehicles got onto the gravel section of the Access Road, Mr Thorning pulled back so as to avoid the dust coming from the truck. He also noticed that a white utility (Mr Polkinghorne's) was also 'a good distance in front' of him (ts 98) and the truck.

19 After driving in a northerly direction for approximately 45 minutes to an hour, Mr Thorning noticed that the utility was now in front of him. A large cloud of dust had formed, so he decided to pull over to the left-hand side of the road and wait for the dust to settle.

20 After the dust had cleared, he saw the white utility and then he saw the truck. The utility, which had been in front of him, was parked over to the right-hand side of the road. The truck had collided with another vehicle, and had come to rest 'central to ... the middle of the road' (ts 100).

21 Constables Michael and Hollins were the first police officers on the scene. They arrived at about 5.05 pm. Constable Michael took photographs (exhibit 6). They show the appellant's and the deceased's vehicles in situ. Constable Hollins made a video recording of the scene (exhibit 7) and marked the position of the vehicles. He noted that the appellant's truck 'was on the incorrect side of the road for the direction of travel' (ts 158).

22 Stuart Estcourt was employed by Rio Tinto as the Access Road inspector. He testified that three Metrocount traffic counters had been deployed on the road (ts 165). One of these counters was positioned at the Fortescue River crossing (marked as TPL 180 on exhibit 8). It is possible with this device to ascertain the direction, order and speed in which vehicles travel on the Access Road.

23 On the day of the collision, the Metrocounter on the Fortescue River crossing recorded that Mr Armer's road train, Mr Polkinghorne's utility and the appellant's truck were all travelling in a northerly direction along the Access Road. The Metrocounter recorded Mr Armer's road train activating the device at 2.29.02 pm at a speed of 59.6 km per hour. His vehicle was followed by Mr Polkinghorne's, at 2.29.36 pm, which was travelling at 63.4 km per hour. The next vehicle was the appellant's truck, at 2.31.34 pm, which was travelling at 84.2 km per hour.

24 The deceased, Mr Andre Leonardo Padilla, was the driver of a Nissan Navara. He and his passenger, Charissa Hope Shipp, were travelling to the Karijini National Park where they intended to go camping. In order to save time, they decided to use the Access Road. Mr Padilla and Ms Shipp obtained a permit to drive on the Access Road from the visitors' centre in Karratha. They both viewed the training video. Ms Shipp testified that she drank three or four stubbies of full-strength beer on the journey. She recalled that Mr Padilla had definitely one and maybe two stubbies of mid-strength beer. It was not suggested that Mr Padilla was affected by alcohol.

25 Immediately before the collision, they were listening to music. Ms Shipp recalled that a song came on that they both liked. She said that they looked at each other and smiled. She said that she then looked up and saw a huge cloud of dust in front of them and then she saw the bull bar of a truck coming, as she put it, 'straight for us on our side of the road' (ts 57). After the collision, she recalled the appellant saying, 'What have I - I'm so sorry. What have I done. What have I done?' (ts 58). Ms Shipp suffered minor injuries as a result of the collision. Mr Padilla suffered serious injuries and died at the scene. A post-mortem examination established that he died from head injuries.

26 The appellant himself suffered injuries as a result of the collision. At about 12.30 am on 18 October 2012, the appellant was seen in the emergency department of the Nickol Bay Hospital in Karratha by a nurse, Rhonda Elisabeth Webb. She testified that the appellant told her that, at the time of the collision, he was driving at a speed of approximately 70 km per hour (ts 129). Dr Sing Lok testified that he treated the appellant at the hospital. Based on notes he took, he said that the appellant told him that he was travelling at approximately 70 to 80 km per hour at the time of the collision. In cross-examination, Dr Lok thought that he had obtained this information from the appellant himself, but he was not 100% certain of this (ts 142 - 143).

27 Early in the afternoon of 18 October 2012, Senior Constable Callaghan of the Major Crash Investigating Section attended at the scene of the collision. Senior Constable Callaghan has expertise in crash scene reconstruction and analysis. Based on his observations, he testified that:

(a) Mr Padilla's vehicle steered to the left which he interpreted as a manoeuvre to avoid a collision (ts 224).

(b) There were no tyre marks on the road that could be attributed to the appellant's truck. In his opinion, the driver of the truck did not attempt to, or was somehow precluded from, steering out of the path of the Nissan Navara, although he could not exclude some degree of deceleration (ts 224).

(c) There were no objects, obstructions or defects found along the carriageway that explained why the appellant's truck was on the incorrect side of the road (ts 225).

28 Senior Constable Callaghan was unable to determine the exact speed of the vehicles at the time of the impact. However, in his view, neither vehicle was exceeding the speed limit.

29 In cross-examination, he said that there was no physical evidence at the scene which explained why the appellant's truck was on the wrong side of the road (ts 242). Senior Constable Callaghan said that, had the appellant been travelling at 5 or 10 km per hour, the collision may well have been avoided or the collision itself well reduced in its severity (ts 244).

30 At 3.20 pm on 18 October 2012, the appellant was interviewed by Constable Collins and Detective Sergeant McKay. The interview was recorded on video and played, without objection, to the jury (exhibit 17). In it, the appellant admitted that he was the driver of the truck involved in the collision. The appellant said that, to the best of his knowledge, the vehicle was in good working order. He said he was not under the influence of alcohol or drugs. He said that on the basis of legal advice he had received, he wished to remain silent as to the circumstances of the fatal crash.

31 The appellant testified in his defence. He said that after he left Tom Price, he caught up to Mr Polkinghorne's vehicle. Up to then he had been travelling at approximately 70 km per hour. He said that he sat behind Mr Polkinghorne's vehicle for 5 or 10 minutes at about 45 km per hour. He said that he decided to overtake Mr Polkinghorne. Before doing so, he said that he could see a kilometre or two in front of him (ts 282). As he overtook Mr Polkinghorne, he said he was travelling at approximately 70 km per hour. After passing Mr Polkinghorne, he moved to the left side of the road. He said that there were no vehicles in front of him and there were no vehicles coming in the opposite direction.

32 After travelling another 9 or 10 km, the appellant said that he rounded a slight left-hand bend and, as he did so, he suddenly became engulfed in dust and could not see ahead. He said he became disorientated. He said he decided that he needed to get out of this situation 'very fast' (ts 283). He took his foot off the accelerator and decelerated, attempting to ease himself out of the dust. He was concerned that if he braked and stopped suddenly in a dust cloud, that might be dangerous to anyone travelling behind him (ts 284).

33 The appellant testified that he decelerated to the point where his truck was 'barely moving' (ts 285). He estimated that he was travelling at under 10 km per hour. He said that he had no idea as to his relative position on the road. The appellant testified that he then saw a car in front of him. He said that there was not enough time to move his truck out of the way and the two vehicles collided. He estimated that from the time that he got into the dust cloud to the time of the impact was 'maybe 20 seconds' (ts 285).

34 The appellant said that, because his truck windows were up, he was unable to give any evidence about the wind that might have been on the road at the time (ts 285).

35 The appellant denied deliberately driving in a dust cloud created by Mr Armer's road train (ts 287). He was unable to give any explanation as to the cause of the dust cloud.

(a) that he was in a hurry to return to Wickham (ts 296 - 297);

(b) saying to Ms Shipp that he was sorry and, 'What have I done? What have I done?' (ts 304);

(c) telling Nurse Webb at the Nickol Bay Hospital that he was travelling at 70 km per hour at the time of the crash (ts 304).

37 In cross-examination, the prosecutor put to the appellant that his evidence was a fabricated reconstruction of events as a result of reading the prosecution brief and sitting through the evidence. The appellant denied this suggestion.

38 The appellant admitted all of the elements of the offence, save for the element of dangerousness. It was not suggested by the appellant that if the driving was dangerous, he was nevertheless entitled to be acquitted on the basis that the death was not in any way attributable to his dangerous manner of driving: s 59B(6) of the RTA.

39 In his closing address, the prosecutor said that the State's case was that after the appellant overtook Mr Polkinghorne, he drove at a speed of approximately 70 km per hour and caught up with Mr Armer's road train, which was travelling at a slower speed than the appellant's truck. The State's case was that the appellant deliberately drove in the dust cloud created by the road train, and he could not see his position on the road or oncoming traffic. In other words, the appellant failed to keep a safe distance behind Mr Armer's semitrailer and to stay out of the dust. As a consequence, the appellant became disorientated and was unable to keep his vehicle on the correct side of the road. The appellant's vehicle veered onto the wrong side of the road and collided with Mr Padilla's vehicle.

The State's case is that [the appellant] had an obligation to keep his vehicle on the correct side of the road. He had to keep his vehicle a safe distance behind the vehicle in front, to stay out of the dust and stay on the right side of the road, the correct side of the road. He didn't do that in this case and his failure in that regard amounts to dangerous driving. The State's case is that this is a young man who was for some reason in a hurry.

He was speeding at the Fortescue River causeway. He overtook Christopher Polkinghorne when it wasn't safe to do so because of the dust and he then put himself behind the road train in the dust. The conditions on the road that day were as follows: we had a gravel road, lots of dust, not much wind. His [the appellant's] training taught him about driving in the dust. He knew the dangers of driving on that road but he failed to drive [to] the conditions (closing addresses, 14 August 2014, ts 15, 16).

41 The prosecutor submitted that the jury should reject the appellant's evidence as untrue. Consistent with what the prosecutor had put to the appellant in cross-examination, he submitted that the appellant had tailored his evidence, having had the opportunity before the trial, to see the prosecution brief and having sat through the trial and listened to the evidence.

42 Defence counsel described the allegation that the appellant had tailored his evidence as 'repugnant'. He submitted that there was no vehicle in front of the appellant after he overtook Mr Polkinghorne's utility. He submitted that the appellant's vehicle had suddenly become engulfed in a cloud of dust, perhaps caused by the wind or a willy-willy, which deprived him of the visibility needed to see in front of him. It was submitted that the appellant became disorientated 'as to the space and place on the road' (closing addresses, 14 August 2014, ts 20). The defence case was that, due to the appellant's sudden disorientation, the appellant 'found himself on the wrong side of the road' (closing addresses, 14 August 2014, ts 21). Defence counsel described the appellant as being 'in the wrong place at the wrong time'. He submitted, in substance, that the appellant was not driving dangerously and, in that sense, the collision was not the appellant's fault (closing addresses, 14 August 2014, ts 21).

Ground 1 - miscarriage of justice - right to silence

43 As I have already mentioned, the appellant participated in a record of interview with police but, on legal advice, he refused to answer any questions concerning the collision.

44 In ground 1, the appellant alleges a miscarriage of justice. It is said that the prosecutor, in the course of his cross-examination of the appellant and in his closing address to the jury, improperly undermined the appellant's right to silence.

45 To support this submission, the appellant relied upon an exchange between the prosecutor and the appellant at the outset of the appellant's cross-examination as follows:

TOOKER, MR: Mr Gray, this is the - - - ?---Yes, sir.

- - - first time you've told the prosecution your side of the story, isn't it?---Yes. Today is my first day I get to tell my side.

TOOKER, MR: Not the first time you get to tell your side, the first time you've told the prosecution your story. Right?---Yes. (ts 288 - 289) (emphasis added)

Now, you've waited a long time to tell your story, haven't you?---Yes, sir.

It has been 22 months since the crash, hasn't it?---On the 17th it will be 22 months. Yes.

Now, subsequent to being charged, and as a part of the normal court procedures, you've been given access to the witness statements from the prosecution brief. Correct?---Yes. That' s correct.

You've had a chance to read over them?---I did.

And you've sat here through this trial since Monday, listening to all the evidence. Isn't that right?---Yes, sir.

And having read all the material and sat through the evidence, you're now telling your story. Is that right?---Yes, sir.

You would have thought about this day and the events of this day over and over in your head over the last 22 months. Isn't that right?---Every day, sir.

Quite naturally, as a human being, you've been trying to convince yourself that you did nothing wrong that day. Isn't that right?---I wouldn't say that. No.

No? And what you're doing today is trying to provide an innocent explanation for what happened. Isn't that right?---What I'm doing today, sir, is telling my version of events.

Yes, having had the opportunity to read all of the witness statements from the prosecution witnesses, and having heard all of the evidence; is that right?---I have had that opportunity, yes.

Isn't it the case that you've tailored your evidence to fit everything else that you've heard.

SAUPIN, DR: Objection, your Honour. Objection. Mr Gray has given evidence under oath of what he saw and what happened that day. The suggestion that he is tailoring his evidence based on the prosecution case, I would say, is objectionable.

HERRON DCJ: On what basis?

SAUPIN, DR: On the basis that it's attacking his character and saying, 'You're basically lying.'

HERRON DCJ: Yes. Why can't Mr Tooker question him on that basis?

SAUPIN, DR: Because I think it's unfair, but I've raised my objection. If your Honour doesn't seek to uphold it, then that's fine.

HERRON DCJ: Yes. Mr Tooker, continue.

TOOKER, MR: Thank you, your Honour. You know a lot about the evidence against you, right?- - -Mostly, yes.

You've had a lot of time to consider it, haven't you?---Those events are stuck in my head.

Yes, yes. I'm not talking about the events. I'm talking about the material provided to you as a part of the prosecution case. Right?---To be honest, I - I received the - all the evidence in the mail. I went over it and the [sic] I passed it on to my second lawyer. I didn't have a copy after that.

But in the lead-up to this trial, you have thought about your version - the story that you're going to tell. Correct?---Not in the lead-up to the trial (indistinct)

You haven't thought about it?---Every day I've thought about it.

Yes. And what I'm suggesting to you is that you've tailored your explanation for what happened to the evidence that you knew was going to be led against you and you've heard in this trial?---That's not true, sir (ts 290).

47 The appellant then relied upon this portion of the prosecutor's closing address:

You see, ladies and gentlemen, there was no sudden thick cloud of dust.

This is his way of trying to explain away what happened. See he has had 22 months to think about this and in those 22 months he would have thought about this over and over in his head and he is human like the rest of us. We're all human and if you're like me, and you would have done this yourself, you know, you make a mistake or you do something wrong, your natural reaction is to water things down and try and play it down so it doesn't seem so bad. That's just a human reaction. It's human nature.

And the other thing that has happened over the last 22 months is that he had access to the prosecution brief, the witness statements, he has been able to sit through this trial and listen to the evidence, and having waited all that time he has then been able to tailor his story to fit the evidence so it doesn't look so bad, to come up with an innocent explanation. And he may very well have convinced himself over the 22 months that that is what actually happened. But it didn't happen that way, ladies and gentlemen. There are gaping holes in his story. (closing addresses, 14 August 2014, ts 13). (emphasis added)

48 The respondent submitted that the prosecutor did not infringe the appellant's right to silence. The respondent submitted that, in its proper context, the cross-examination of the appellant and the prosecutor's closing submissions to the jury were a suggestion of fabrication of the appellant's evidence over a period of time and not a submission that, if the appellant's account was true, he would have told the police at the outset, instead of invoking his right to silence.

49 The relevant legal principle was stated by Mason CJ, Deane, Toohey and McHugh JJ in their joint judgment in Petty v The Queen [1991] HCA 34; (1991) 173 CLR 95, 99, in these terms:

A person who believes on reasonable grounds that he or she is suspected of having been a party to an offence is entitled to remain silent when questioned or asked to supply information by any person in authority about the occurrence of an offence, the identity of the participants and the roles which they played. That is a fundamental rule of the common law which, subject to some specific statutory modifications, is applied in the administration of the criminal law in this country. An incident of that right of silence is that no adverse inference can be drawn against an accused person by reason of his or her failure to answer such questions or to provide such information. To draw such an adverse inference would be to erode the right of silence or to render it valueless. ...

That incident of the right of silence means that, in a criminal trial, it should not be suggested, either by evidence led by the Crown or by questions asked or comments made by the trial judge or the Crown Prosecutor, that an accused's exercise of the right of silence may provide a basis for inferring a consciousness of guilt. Thus, to take an example, the Crown should not lead evidence that, when charged, the accused made no reply. Nor should it be suggested that previous silence about a defence raised at the trial provides a basis for inferring that the defence is a new invention or is rendered suspect or unacceptable.

50 There is a distinction between a suggestion of fabrication of details over a period of time, on the one hand, and, on the other, one to the effect that if the defence raised was true it would have been made to the police from the outset. The latter falls foul of the statements of principle made in Petty, while the former does not, because it is, in substance, an allegation of fabrication developed over a period of time and is not an invitation to the jury to draw an adverse inference about the accused's silence: McKerlie v The State of Western Australia [No 2] [2006] WASCA 274 [4] (Steytler P).

Did the prosecutor infringe the appellant's right to silence?

51 Viewed out of context from the rest of the cross-examination of the appellant, the italicised question posed by the prosecutor at the outset of his cross-examination extracted at [45] of these reasons, may be understood as a suggestion that the appellant's silence in the police interview was a basis upon which to infer that his defence was an invention.

52 However, when the questions are considered in the light of the cross-examination which immediately follows, it is very clear that the prosecutor was suggesting to the appellant that, over the period of 22 months since he was charged, having read the prosecution brief and sat through the trial, he had fabricated his evidence to take into account what had been revealed by those sources.

53 The submission by the prosecutor in his closing address which the appellant sought to use to advance his argument in support of this ground, in truth, undermines it. The submission makes no reference to the appellant invoking his right to silence and is focused on the contention that the appellant's evidence was a fabrication developed over time and with the knowledge of the prosecution brief and the testimony of the witnesses at the trial.

54 It is significant that at no stage in the trial did defence counsel object to the prosecutor's line of questioning of the appellant or his closing submissions on the basis that the prosecution was improperly undermining the appellant's right to silence. The objection defence counsel took during the appellant's cross-examination was a different ground (and one upon which there was no substance); namely, the prosecutor was attacking the appellant's character and suggesting that he was lying.

55 In my opinion, the prosecutor did not suggest that the appellant's exercise of the right of silence provided a basis for inferring a consciousness of guilt.

56 If the prosecutor infringed the appellant's right to silence, it is not correct, as the appellant asserted in his written submissions (pars 144 and 145) that his Honour's summing up did nothing to ameliorate any miscarriage of justice which may have arisen from the statements.

57 His Honour gave a specific and unambiguous direction that no adverse inference could be drawn from the fact that the appellant exercised his right to silence when interviewed by the police (ts 337 and 338).

58 His Honour then proceeded to direct the jury that the appellant was entitled to wait until trial to give his account of the relevant events. His Honour said:

The fact that he did not give police an explanation of the incident proves nothing one way or the other. The question for you to consider on the charge is whether, on all the evidence before you, the State has proved the charge beyond reasonable doubt. The accused gave evidence in this trial as to how he says the crash occurred. It was his right to wait until the trial before he explained how he says the incident occurred. The accused does not have to prove anything in this trial. You only deliver a guilty verdict if, on all the evidence, the State has proved the charge beyond reasonable doubt. If you have a reasonable doubt as to whether [the appellant] is guilty or not guilty, then it is your duty to find him not guilty (ts 338). (emphasis added).

59 In my opinion, this direction neutralised any suggestion that the jury could draw an adverse inference from the appellant's invocation of the right to silence.

60 In my opinion, ground 1 has no reasonable prospect of success. I would not grant leave to appeal in respect of it.

Ground 2 - alleged failure to direct the jury as to the defence in s 59B(6)(b) of the RTA

61 The appellant submitted that he has suffered a miscarriage of justice because the learned trial judge failed to direct the jury as to the defence under s 59B(6) of the RTA. No direction to this effect was sought by the appellant at trial.

62 As I have already noted, the appellant was charged under s 59(1)(b) of the RTA which relevantly provides:

If a motor vehicle driven by a person ... is involved in an incident occasioning the death of ... another person and the driver was, at the time of the incident, driving the motor vehicle -

(a) ... ; or

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

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

63 Section 59B(6) relevantly provides:

In any proceeding for an offence against section 59 ... it is a defence for the person charged to prove that the death ... occasioned by the incident was not in any way attributable -

(a) ... ; or

(b) to the manner (which expression includes speed) in which the motor vehicle was driven.

64 Under s 59(1), the only causal connection the State has to establish is that a motor vehicle driven by the accused was involved in an incident that resulted in the death of another person. If the State also proves that, at the time of the incident, the accused was driving the motor vehicle dangerously, the offence will be established unless the accused establishes, on the balance of probabilities, that the death was not in any way attributable to the dangerous manner of driving: Lodge v Magorian [2012] WASCA 90; (2012) 42 WAR 270 [13], [14] (McLure P).

65 I have already described the respective cases at trial. The case was fought on the issue of whether the State had proved beyond reasonable doubt that the appellant was driving dangerously at the time of the incident which occasioned the death. The appellant's case was, in essence, that he did not drive dangerously and that his disorientation was caused by a sudden and unexpected event which threw up a cloud of dust.

66 In this appeal, counsel for the appellant accepted that, in substance, the learned trial judge directed the jury that unless they positively rejected the appellant's account, the appellant must be acquitted (appeal ts 9 - 10).

67 By its verdict of guilty, the jury plainly rejected the appellant's version of events. Rejection by the jury of this version left no scope for a finding under s 59B(6) of the RTA that the death was not in any way attributable to the manner of driving in which the motor vehicle was driven. An examination of the trial record reveals that there was no other evidence upon which the appellant could mount a defence under s 59B(6) of the RTA, as his counsel conceded in this court (appeal ts 11).

68 In the light of the way in which the trial was conducted, the appellant has suffered no miscarriage of justice because of his Honour's 'failure' to direct the jury as to the defence under s 59B(6) of the RTA.

69 Proposed ground 2 has no reasonable prospect of success.

70 The State submitted that if either or both grounds of appeal against conviction were made out, this court should apply the proviso in s 30(4) of the Criminal Appeals Act 2004 (WA).

71 Section 30(3) provides:

The Court of Appeal must allow the appeal if in its opinion -

(a) the verdict of guilty on which the conviction is based should be set aside because, having regard to the evidence, it is unreasonable or cannot be supported; or

(b) the conviction should be set aside because of a wrong decision on a question of law by the judge; or

(c) there was a miscarriage of justice.

72 Section 30(4) provides:

Despite subsection (3), even if a ground of appeal might be decided in favour of the offender, the Court of Appeal may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred.

73 In Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300 and, more recently, in Baiada Poultry Pty Ltd v The Queen [2012] HCA 14; (2012) 246 CLR 92, the High Court examined the proviso to the common form criminal appeal statute. In Baiada Poultry, French CJ, Gummow, Hayne and Crennan JJ, in their joint reasons, reiterated what was said in Weiss, namely, that:

... an appellate court must undertake the task of determining whether no substantial miscarriage of justice has actually occurred in the same way as it would decide whether the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence although, of course, the inquiries are distinct. That task must be undertaken on the whole of the record of the trial including the fact that the jury returned a guilty verdict [27].

74 Their Honours went on to make two further points. First, the significance to be given to the fact that the jury has returned a guilty verdict must be assessed paying proper regard to what were the issues that the jury were directed to determine in order to arrive at a verdict of guilt. Second, the proviso cannot be engaged 'unless the appellate court is persuaded that the evidence properly admitted at trial proved, beyond reasonable doubt, the accused's guilt of the offence on which the jury returned its verdict of guilty' [29]. This second point is a negative proposition; that is, it states a necessary but not sufficient condition for applying the proviso: Baiada Poultry [28], [29].

75 Had it been necessary I would have invoked the proviso in this case.

76 I have set out the evidence led at trial. As I have said, the primary factual issue for decision by the jury was whether the prosecution had proved beyond reasonable doubt that the appellant had driven dangerously.

77 In McBride v The Queen [1966] HCA 22; (1966) 115 CLR 44, Barwick CJ explained that driving in a manner which is 'dangerous to the public' as the statute then under consideration provided, imported:

... a quality in the speed or manner of driving which either intrinsically in all circumstances, or because of the particular circumstances surrounding the driving, is in a real sense potentially dangerous to a human being or human beings who as a member or as members of the public may be upon or in the vicinity of the roadway on which the driving is taking place (49 - 50).

This concept is in sharp contrast to the concept of negligence. The concept with which the section deals requires some serious breach of the proper conduct of a vehicle upon the highway, so serious as to be in reality and not speculatively, potentially dangerous to others. This does not involve a mere breach of duty however grave, to a particular person, having significance only if damage is caused thereby (50).

79 See also Jiminez v The Queen [1992] HCA 14; (1992) 173 CLR 572, 579, and King v The Queen [2012] HCA 24; (2012) 245 CLR 588, 603.

80 The test of dangerousness is objective in nature, but there must be some fault on the part of the driver: Smith v The Queen [1976] WAR 97, 105, and Kaighin v The Queen [1990] 1 WAR 390, 396.

81 There was no dispute that the appellant's truck became engulfed in a cloud of dust which disorientated him and caused his vehicle to cross onto the incorrect side of the road and collide with the vehicle being driven by Mr Padilla's Nissan Navara, thereby occasioning his (Mr Padilla's) death.

82 The question was whether what occurred was the appellant's fault. The State case was that the appellant was at fault. Its case, in a nutshell, was that the appellant deliberately drove into the dust cloud created by Mr Armer's road train after he passed Mr Polkinghorne, rather than hanging back out of the cloud. The dust cloud obscured his vision and the appellant drove in it long enough to become disorientated. Put another way, the appellant failed to drive according to the conditions.

83 The defence case was that after the appellant passed Mr Polkinghorne, there was no vehicle in front of him giving off a dust cloud. Instead, his vision was obscured and he became disorientated as a result of a sudden and unexpected dust cloud, presumably created by environmental factors, which engulfed his vehicle.

84 It is clear from the jury's verdict that it rejected the appellant's version of events and was satisfied beyond reasonable doubt of the State's case.

85 The undisputed evidence obtained from the Metrocount machine at the Fortescue River crossing was that, at that point, some 14.4 km from the crash site, Mr Armer's road train was 34 seconds ahead of Mr Polkinghorne's vehicle, which was, in turn, just under 2 minutes ahead of the appellant's truck. The appellant was travelling at a speed substantially faster than either Mr Armer or Mr Polkinghorne. Mr Polkinghorne gave clear evidence that Mr Armer's vehicle was creating a dust cloud of a magnitude that caused him (Mr Polkinghorne) to sit back in order to see the road ahead of him. Mr Armer testified that he was unable to see behind him because of the dust billowing from the rear of his road train.

86 Mr Polkinghorne testified that the appellant, after travelling behind him for between 5 to 10 minutes, overtook him at a speed of 60 to 70 km per hour. The substance of Mr Polkinghorne's testimony was that the appellant's vehicle was, after that manoeuvre, behind Mr Armer's.

87 The cross-examination of Mr Polkinghorne was brief (ts 90 - 92) and his evidence was not materially challenged. Neither, for that matter, was the evidence of Mr Armer. Their testimony may readily be accepted.

88 In the face of this evidence, the appellant's testimony, to the effect that there was no vehicle in front of him giving off a dust cloud, must be rejected. So too must the notion that the dust cloud occurred suddenly and without warning. The dust cloud was created by Mr Armer's vehicle and was an obvious hazard. The alternative, that the dust cloud was created by some environmental factor such as wind, is fanciful. Neither Mr Polkinghorne nor Mr Armer thought that on the day in question there was a lot of wind. The appellant was unable to give any evidence about the wind or any other cause for the cloud of dust.

89 In my opinion, the evidence revealed that the appellant deliberately drove into the cloud of dust created by Mr Armer's road train and did not, as his training and indeed good sense would dictate, drop back out of the dust. The manner of driving was very plainly dangerous to other road users because of the inability of the appellant to see where he was going and gauge his position on the road.

90 The appellant testified that once he was engulfed in the cloud of dust and just before the collision, he decelerated his vehicle to approximately 10 km per hour. Senior Constable Callaghan was unable to determine the exact speed of the appellant's vehicle at the time of the collision. While he conceded the possibility that the appellant decelerated to some degree, he did not agree that the appellant was 'barely moving' (ts 242). Given the speed the appellant's vehicle was travelling at the Fortescue River crossing, Mr Polkinghorne's testimony as to the appellant's speed when he was overtaken and Nurse Wells' evidence as to what the appellant told her about his speed, the appellant's evidence on this point must be rejected.

91 Based on my examination of the whole record of the trial, including the jury's guilty verdict, I am satisfied that the evidence proved beyond reasonable doubt the appellant's guilt. The evidence established that the appellant deliberately drove into the cloud of dust created by Mr Armer's vehicle and that he was aware of the hazards of doing so. He did not, as he could easily have done, drop back out of the cloud of dust. His driving was dangerous and he was at fault. I reject the appellant's testimony as to the circumstances of the crash. It has, as the State alleged at trial, the hallmarks of a fabrication developed after the event. Had it been necessary to consider the defence under s 59B(6) of the RTA, there would have been no basis upon which to conclude that the death was not in any way attributable to the dangerous manner of the appellant's driving.

92 If any of the errors alleged by the appellant were made, they are not, in my opinion, of the kind that would preclude the operation of the proviso. If either or both grounds of appeal had been decided in the appellant's favour, I would nevertheless have dismissed the appeal against conviction because I consider that no substantial miscarriage of justice has occurred.

93 Neither proposed ground of appeal against conviction has a reasonable prospect of success. Leave to appeal should be refused and the appeal against conviction dismissed.

94 The general principles which apply to the appellant's appeal against sentence were accurately and succinctly explained by McLure P and Owen JA in Wilson v The State of Western Australia [2010] WASCA 82 [2]. These principles are well known and do not require repetition.

95 The learned sentencing judge made detailed findings of fact.

96 With respect to the appellant's journey from Tom Price to Karratha, his Honour found that initially Mr Polkinghorne was ahead of the appellant and that Mr Armer was ahead of Mr Polkinghorne (ts 384). Mr Polkinghorne slowed his Toyota Hilux in order to drive 'just behind' the dust cloud given off by Mr Armer's prime mover and road train (ts 385). The appellant's vehicle travelled behind Mr Polkinghorne's vehicle 'for about five to 10 minutes' before the appellant overtook him (ts 385). At that point, his Honour found that Mr Polkinghorne was travelling at about 60 to 70 km per hour. His Honour found that the circumstances in which the appellant passed Mr Polkinghorne created a dangerous situation for Mr Polkinghorne, but this was not 'relevant to the cause of the crash' (ts 385).

97 Once the appellant overtook Mr Polkinghorne, he was then travelling behind Mr Armer's vehicle which was 'creating a large amount of dust behind it through which it was difficult to see' (ts 385).

98 His Honour found that the appellant drove in the cloud of dust created by Mr Armer's vehicle 'for approximately the next three or four kilometres' during which time the appellant's visibility of the road ahead of him 'was severely restricted' (ts 387). His Honour said that rather than pull back from the cloud of dust, the appellant continued driving in it. His Honour was satisfied that the appellant became disorientated in the dust 'just prior to the point of collision' (ts 387). His Honour found that the appellant's vehicle travelled to the incorrect side of the road and collided with the Nissan Navara, driven by Mr Padilla.

99 His Honour was satisfied that at the time of the collision the appellant was travelling at a similar speed to Mr Armer, that is, 60 km per hour. His Honour was satisfied that there would not have been sufficient time for the appellant to decelerate or slow down to any great extent from the time he saw Mr Padilla's vehicle (ts 387).

100 His Honour expressly rejected the appellant's evidence that when he passed Mr Polkinghorne's vehicle there were no vehicles ahead of him and thus no dust cloud. His Honour also expressly rejected the appellant's evidence that he was enveloped in a 'sudden and unexpected cloud of dust' and that he decelerated, so at that point he was travelling at between 5 to 10 km per hour (ts 388).

101 His Honour described the appellant's fault in these terms:

Your fault principally lies in continuing to drive in a cloud of dust rather than pulling back a sufficiently safe distance so that you were able to maintain good visibility of the road from behind the cloud of dust. Your fault also lies in steering onto the incorrect side of the road.

After you passed Mr Polkinghorne's vehicle, you were travelling at about 70 kilometres per hour. If for the next three or four kilometres until the scene of the crash you continued travelling at that speed, you would have travelled the distance in about three minutes. If you were travelling at 60 kilometres per hour, you would have travelled the three or four kilometre distance to the crash site in about three or four minutes.

It is for that period of the three or four minutes that you were driving dangerously by not having sufficient regard to the road conditions, by failing to drive behind the cloud of dust created by Mr Arma's [sic] road train; that is, by failing to drive a sufficient distance behind the cloud of dust created by Mr Arma's [sic] road train and by continuing to drive in the cloud of dust. Your fault is therefore more than momentary inattention.

You failed to drive to the conditions of the rail access road. Everybody who gave evidence about driving on the road that day spoke about the need to drive a sufficient distance behind vehicles in front of them to avoid driving into dust clouds created by vehicles in front to allow for proper visibility of the road ahead of them, the major danger of driving on the road with limited visibility created by the dust of vehicles travelling on the road (ts 388 - 389).

102 His Honour took into account the following matters:

(a) The appellant failed to drive to the conditions of the road by failing to maintain a safe distance behind the cloud of dust created by Mr Armer's vehicle.

(b) The appellant drove onto the incorrect side of the road because he became disorientated in the dust.

(c) The manner of the appellant's dangerous driving was 'more than momentary inattention' (ts 388). His Honour noted that the appellant was driving in the cloud of dust for a distance of approximately 3 to 4 km for approximately 3 to 4 minutes when his vision of the road ahead was 'severely restricted' (ts 389).

103 His Honour took into account, as mitigating factors, the following matters:

(a) The appellant was driving below the speed limit of 80 km per hour.

(c) The appellant was unfamiliar with the road conditions and may not have fully appreciated the dangerous road conditions caused by dust, despite the appellant having seen the training video. However, his Honour accepted that if the appellant was unfamiliar with the road conditions, he was under a responsibility to exercise greater caution (ts 390).

(d) The appellant was remorseful and was unlikely to reoffend in the same way again. He did not pose a danger to other road users in the future (ts 391).

104 His Honour referred to the victim impact statements he received and recognised the significant trauma which had been caused to Mr Padilla's loved ones. His Honour considered that general deterrence was an important sentencing consideration. He considered personal deterrence to be relevant, but that it was not 'a major consideration' (ts 391).

105 At the time of the offence, the appellant was 25 years of age. He was 27 when he was sentenced. After the crash, his long-term relationship broke down and he lost his employment. His loss of income made it extremely difficult for him to make his mortgage repayments. His Honour described the appellant's traffic record as being 'poor' (ts 391). Between 24 June 2011 and 24 April 2012, the appellant had received six speeding infringements. There were also speeding infringements in 2006 and 2007, as well as a drink driving conviction in 2007. As character references tendered at the sentencing proceedings showed, the appellant was otherwise of good character.

106 The appellant's case, dated 17 October 2014, contained five grounds of appeal. Subsequently, the appellant sought to add a sixth ground directed to the length of the appellant's driver's licence disqualification.

(a) was granted leave to amend ground 1 to include the words 'up to' in the particulars to the ground; and

(b) abandoned grounds 3 and 5 (appeal ts 20, 21 and 27).

108 The grounds of appeal for this court to decide are as follows:

Ground 1

The learned sentencing Judge was inadvertently led into error by the prosecutor concerning the time and/or distance the appellant was driving dangerously;

Particulars of time and/or distance:

1.1 The time/distance was up to 1.4 minutes/kilometres, not three or four minutes/kilometres.

Ground 2

The learned sentencing Judge fell into error when he determined not to suspend the term of imprisonment imposed;

Particulars of error:

2.1 The period of 'momentary inattention' was markedly less than the duration for which the appellant was sentenced.

Ground 3

[Abandoned]

Ground 4

It was not reasonably open for His [sic] Honour to find, to the requisite standard, the appellant didn't decelerate to 10 kilometres per hour prior to impact.

Ground 5

[Abandoned]

Ground 6

The period of suspension imposed on the appellant's motor vehicle drivers licence was, in all the circumstances, manifestly excessive;

Particulars of the circumstances;

6.1 The criminality involved;

6.2 The appellant's antecedents;

6.3 Sentences imposed in, broadly, comparable cases.

109 Leave to appeal has been granted in respect of grounds 1 and 2. The question of leave with respect to grounds 4 and 6 is a matter for this court.

110 In oral argument, the appellant's counsel concentrated upon grounds 1 and 2. He was right to do so. As I will explain, none of the other grounds have merit.

111 These grounds of appeal may be considered together. The appellant contended that if the learned sentencing judge made the error alleged in ground 1, this court should resentence the appellant to a suspended term of imprisonment as alleged in ground 2.

112 As the quotation from his Honour's sentencing remarks reproduced at [101] of these reasons shows, his Honour found that the appellant drove in the dust cloud created by Mr Armer's vehicle for a distance of 3 or 4 km in about 3 or 4 minutes. This finding was said to be relevant to the question of whether the appellant's dangerous driving was 'more than momentary inattention' (ts 389).

113 This question was a matter raised in mitigation by defence counsel and disputed by the State. His Honour said, during the prosecutor's sentencing submissions that, 'Obviously, the greater the distance and the greater the time, the less it's likely to be momentary inattention' (ts 376).

114 In response to questions put to him by the learned sentencing judge, the prosecutor, acknowledging that the figures, as he put it, were 'rubbery' and did not enable his Honour to make an exact finding, made the calculation which his Honour adopted and which is impugned by ground 1 (ts 376). Unfortunately, as the respondent now accepts, the calculation made by the prosecutor was erroneous.

115 The error arose in this way. The collision occurred 14.4 km north of the Metrocount traffic device which had been deployed at the Fortescue River crossing. The prosecutor submitted that after the crossing it took approximately 8 km for the appellant to catch up with Mr Polkinghorne's vehicle and that he remained behind that vehicle for a further 5 km before overtaking it. If those assumptions were correct, then the appellant travelled approximately 13 km before overtaking Mr Polkinghorne and the distance that the appellant drove to the crash site in the cloud of dust thrown up by Mr Armer's vehicle was approximately 1.4 km. Assuming the appellant was travelling at 60 km per hour, that distance would have been covered in approximately 1.4 minutes. However, the prosecutor made a simple arithmetic error in his calculation of the distance it took for the appellant to catch up to and remain behind Mr Polkinghorne's vehicle. He incorrectly calculated the distance as 11 km, not 13 km. This miscalculation led the prosecutor to submit that the distance over which the appellant drove in the dust cloud was 3.4 km and the time over which the appellant covered that distance as 3 or 4 minutes (ts 376 - 377).

116 Plainly there has been a miscalculation and, to this extent, ground 1 has been made out. I accept the error was material in that it was capable of affecting the sentence actually imposed by the judge: Fernandes v The State of Western Australia [2009] WASCA 227 [9] - [10].

117 The question which arises is whether a different sentence should be imposed: s 31(4)(a) of the Criminal Appeals Act. This court's duty is to exercise the sentencing discretion afresh: Harding v The State of Western Australia [2015] WASCA 27 [72] - [75]. The appellant, as I have mentioned, submits that this court should now impose a different sentence, namely a suspended imprisonment order. The respondent submits that, despite the error, no different sentence should be imposed by this court.

118 The maximum penalty for the offence committed by the appellant is 10 years' imprisonment.

119 The offence committed by the appellant is one which is committed in different degrees of culpability on a continuum between low and high, having regard to the particular circumstances of the case. It is no longer the law in this State that offences of dangerous driving occasioning death are divided into cases of momentary inattention or misjudgement, and those in which a person has driven in a manner which shows a selfish disregard for the safety of other road users or passengers or with a degree of recklessness: Eves v The State of Western Australia [2008] WASCA 7 [22]; [2008] WASCA 7; (2008) 49 MVR 259.

120 In truth, the evidence adduced at trial as to the distances travelled by the appellant and Mr Polkinghorne and their speeds were approximations and were imprecise. With respect to the learned sentencing judge, calculations of the sort that were made in this case were of little assistance in gauging the appellant's culpability. What was important was an assessment of all of the relevant circumstances.

121 As I have previously stated, Mr Armer's vehicle, which was throwing up a large cloud of dust, was in front of Mr Polkinghorne's vehicle. The appellant was travelling behind Mr Polkinghorne and remained there for between 5 to 10 minutes. The appellant must have been aware of the dust cloud, and it must have been obvious that it was potentially dangerous. Nevertheless, he chose to overtake Mr Polkinghorne's utility and drive into it. The learned sentencing judge's findings that the appellant was impatient and in a hurry have not been challenged and should be accepted.

122 While no precise findings can be made as to the distance and time over which the appellant drove in the dust cloud, it cannot be said that it was a very short period of time. What is clear is that:

(a) he did not come across the dust cloud suddenly;

(d) he was aware, or ought to have been aware, that dust posed a major visibility hazard; and

(e) he failed to avoid the dust cloud by taking the obvious and convenient step of keeping a safe distance behind Mr Armer's vehicle.

123 The learned sentencing judge's findings that the appellant was unfamiliar with the road conditions and may not have fully appreciated the dangers caused by dust must not be ignored. However, this finding must be seen in the context that the appellant had driven on the Access Road before and had received general training as to gravel road driving, and specific training directed to driving on the Access Road. He had viewed the instructional video with respect to the Access Road that emphasised the problems caused by dust. In any event, all drivers are expected to drive according to the conditions. Lack of familiarity with road conditions requires greater caution on the part of the driver. I do not regard any lack of appreciation by the appellant as to the danger posed by dust on a gravel road as having any substantial mitigating weight. The adverse effect that dust has on visibility and orientation is, in essence, no different to other phenomena which may have a similar effect upon visibility, such as heavy rain, fog or smoke. It is well known that such phenomena have the capacity to disorientate in the sense that it is more difficult for a driver to maintain the correct position on the road and to see and deal with hazardous situations.

124 There was no reason in this case for the appellant to drive into the dust cloud created by Mr Armer's vehicle. The appellant should have been patient and, as the training video suggests, sat back out of the cloud. Instead, because he was in a hurry and impatient, he drove in the dust cloud.

125 The appellant deliberately overtook Mr Polkinghorne and continued to drive his truck in the dust, an act that very significantly reduced his visibility and ultimately resulted in him becoming disorientated, crossing to the wrong side of the road and colliding with Mr Padilla's vehicle, with fatal consequences. As such, I do not regard the appellant's culpability as low. I would characterise his conduct as being closer to the mid-range of culpability.

126 Earlier in these reasons I referred to the appellant's personal circumstances and antecedents. The appellant cannot be said to be a young offender. His traffic record was, as his Honour observed, poor. It must be said that he is of otherwise good character. Despite the not guilty plea, his Honour found that the appellant was remorseful and unlikely to reoffend in the same way again or pose a danger to other road users in the future.

127 A court must not impose a sentence of imprisonment unless it decides that the seriousness of the offence is such that only imprisonment can be justified or the protection of the community requires it: s 6(4) of the Sentencing Act 1995 (WA). A court must not impose a term of immediate imprisonment unless satisfied, having regard to the sentencing principles set out in div 1 of pt 2 of the Sentencing Act, that it is not appropriate to impose suspended or conditionally suspended imprisonment: s 39(2) and s 39(3) of the Sentencing Act. The discretion to suspend or conditionally suspend a term of imprisonment is not confined by considerations relating to rehabilitation and mercy. The objective features of an offence may, in a particular case, outweigh the personal considerations of rehabilitation and mercy: Dinsdale v The Queen [2000] HCA 43; (2000) 202 CLR 321 [84], [86].

128 In the present case, having taken into account all of the relevant sentencing factors, I am satisfied that the only appropriate sentence to be imposed upon the appellant was a term of imprisonment, particularly having regard to the degree of the appellant's culpability and the need for general deterrence. I have come to this view notwithstanding the combined effect of the mitigating factors in the case. In my opinion, a sentence of 2 years 2 months' imprisonment was appropriate.

129 I now turn to the question of suspension. I have considered afresh all of the relevant circumstances of the case. In my opinion, it would not be appropriate, again having particular regard to the appellant's culpability and the need for general deterrence, to suspend the term of imprisonment.

130 Thus, in my opinion, despite the error made by the learned sentencing judge, no different sentence should be imposed. Ground 2 has not been made out.

131 The remaining grounds are grounds 4 and 6. Neither ground, in my view, has any merit. Ground 4 seeks to impugn the learned sentencing judge's finding as to the speed at which the appellant was driving at the point of impact, while ground 6 alleges that the period of disqualification was manifestly excessive.

132 As I said earlier in these reasons, the appellant testified that, after he suddenly became engulfed in dust, he decelerated his truck to the point where it was 'barely moving' (ts 285). He estimated that it was travelling at under 10 km per hour. In his sentencing remarks, the learned sentencing judge, in substance, rejected this evidence. He found, at the time of the collision, that the appellant was travelling at approximately 60 km per hour.

133 The appellant submits that it was not open to his Honour to reject the appellant's evidence on this point. The appellant contends that the finding was not open 'give[n] the evidence of Senior Constable Callaghan who was unable to rule it out as an option based on the evidence at the collision site' (appellant's submission, par 110).

134 It is correct that Senior Constable Callaghan was unable to determine the exact speeds of the appellant's and the deceased's vehicles at the point of impact. In cross-examination, it was put to him by defence counsel that he could not rule out that the appellant's truck was barely moving at the point of impact. Senior Constable Callaghan answered:

I don't think 'barely moving' is the appropriate - but I can't say that it was - it certainly wasn't travelling at the speed limit, and the speed - add [sic] impact, I really can't say with any definitive - I can't give a definitive speed (ts 242).

135 Senior Constable Callaghan's evidence does not support the contention that the appellant was travelling at a speed of 10 km per hour at impact.

137 It was well open to the learned sentencing judge to reject his evidence as to the speed he was travelling at the point of impact. The appellant's vehicle crossed the Fortescue River crossing at a recorded speed of 84.2 km per hour. Mr Polkinghorne estimated that when the appellant overtook his vehicle, the appellant was travelling at approximately 60 or 70 km per hour. The appellant told Nurse Webb that at the time of the collision he was driving at a speed of approximately 70 km per hour.

138 Ground 4 has no reasonable prospect of succeeding.

139 The appellant, by this ground, alleges that the period of the driver's licence disqualification was manifestly excessive. The ground was not supported by any oral or written submissions other than in an affidavit sworn by the appellant's solicitor, Marc George Saupin, and filed 11 November 2014, which sets out a schedule of comparable cases.

140 Pursuant to s 59(3) of the RTA, a driver's licence disqualification of 'no less than 2 years' is a mandatory and additional part of any sentence imposed for a contravention of s 59(1)(b) of the RTA. As I explained in Timbrell v The State of Western Australia [No 2] [2013] WASCA 269 [124] - [125], the question of the length of a driver's licence disqualification is a matter of discretion to be decided having regard to the relevant statutory provisions in all of the circumstances of the case. The same considerations that informed the sentencing of the offender generally will inform the question of the length of any disqualification. Thus, any disqualification must be proportionate to the gravity of the offence and be no longer than is required to achieve the purposes of punishment, such as the protection of the community, deterrence, retribution and reform.

141 In order for the appellant to succeed, it is necessary for him to demonstrate that the disqualification for a period of 5 years was unjust or unreasonable.

142 I have had regard to the cases referred to in Mr Saupin's affidavit. It is unnecessary to refer to them, except to say that only in Timbrell was the question of the length of the driver's licence disqualification in issue. The circumstances of that case were not as serious as the present case. The period of disqualification in this case is lengthy, but, in my opinion, having regard to all of the circumstances of the case, could not be said to be unjust or unreasonable. The ground has no reasonable prospect of success and I would not grant leave to appeal with respect to it.

Conclusion in respect of the appeal against sentence

143 Only ground 1 has been made out. Despite his Honour's error, I would not impose a different sentence. Accordingly, the appeal must be dismissed.

GRAY -v- THE STATE OF WESTERN AUSTRALIA [2015] WASCA 108 (28 May 2015)

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GRAY -v- THE STATE OF WESTERN AUSTRALIA [2015] WASCA 108 (28 May 2015)

Legislation Cited (2)

Cases Cited (9)