Kay v R [2004] WASCA 222

Allen v R, unreported; CCA SCt of WA; (Kennedy J); Library No 950215; 27 April 1995

Bensegger v R [1979] WAR 65

Herbert v R [2003] WASCA 61; (2003) 27 WAR 330

Jarvis v R (1993) 20 WAR 201

Koltasz v R [2003] WASCA 38

Laporte v R [1970] WAR 87

Parsons v R (2000) 32 MVR 319; [2000] WASCA 407

Punch v R (1993) 9 WAR 486

R v Guilfoyle [1973] 2 All ER 844

R v Langridge (1996) 17 WAR 346; 87 A Crim R 1

R v Snewin (1997) 25 MVR 553

R v Wilkins (1988) 38 A Crim R 445; 8 MVR 404

R v Wood (2002) 130 A Crim R 518; 36 MVR 94

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

D'Amico v R [2000] WASCA 343

Director of Public Prosecutions v Solomon [2002] VSCA 106; (2002) 36 MVR 425

Herbert v R [2003] WASCA 61

Huriwai v R (1994) 20 MVR 166

MacKereth v R (1991) 12 MVR 463

McKenna v R (1992) 7 WAR 455

Mill v R (1988) 166 CLR 59

Moro v R [2001] WASCA 44

Postiglione v R [1997] HCA 26; (1997) 189 CLR 295

R v Bishop [2002] NSWCCA 263; (2002) 35 MVR 351

R v Clampitt-Wotton [2002] NSWCCA 383; (2002) 37 MVR 340

R v Cody (1997) 25 MVR 325

R v Demasi [1999] SASC 235; (1999) 29 MVR 459

R v Freeman (1987) 5 MVR 192

R v Goulthorpe (1992) 15 MVR 516

R v Guariglia [2001] VSCA 27; (2001) 33 MVR 543

R v Howland [1999] NSWCCA 10; (1999) 104 A Crim R 273

R v Jaworowski [1999] NSWCCA 430; (1999) 108 A Crim R 489

R v Jurisic [1998] NSWSC 423; (1998) 45 NSWLR 209

R v Lynch (1990) 12 MVR 398

R v O'Dea [2002] NSWCCA 91; (2002) 36 MVR 184

R v Olbrich [1999] HCA 54; (1999) 199 CLR 270

R v Ryan [2000] NSWSC 724; (2000) 31 MVR 366

R v Stone [1994] SASC 4489; (1994) 63 SASR 297

R v Street (1986) 4 MVR 156

R v Tran [2002] VSCA 52; [2002] 4 VR 457

R v Vukic [2003] NSWCCA 13; (2003) 38 MVR 475

R v Weedon (1989) 9 MVR 70

R v White [2000] WASCA 118

R v Whyte [2002] NSWCCA 343; (2002) 55 NSWLR 252

Robinson v R (1991) 56 A Crim R 133

Smith v R [1976] WAR 97

Van Der Heyden v R (1990) 12 MVR 313

Veen v R (No 2) [1988] HCA 14; (1987) 164 CLR 465

Williams v R [1992] VicRp 24; [1992] 1 VR 374

1 MURRAY J: I have had the advantage of reading in draft the judgment prepared by Miller J. I respectfully agree with it and with his Honour's conclusions that leave to appeal should be granted, the appeal should be allowed, the sentences imposed by the trial Judge quashed and new sentences substituted. I agree with his Honour's views as to what those sentences should be and how they should be structured.

2 While associating myself generally with his Honour's reasons, there are two observations I wish to make. The first concerns the evaluation for sentencing purposes of the criminality involved in the commission of offences of dangerous driving causing death, grievous bodily harm or bodily harm. Because of the many relevant facts which will necessarily mark out the individual circumstances of the commission of such an offence in a particular case, and the difficulty of comparison between the circumstances of different cases, these are offences for which it is difficult to discern a clear tariff of sentences. All one can do, as a sentencing Judge, is to bear clearly in mind what are the circumstances which will be relevant to mark out the nature of the offence for which sentence is to be passed. I found it useful, in considering this case, to revisit what I said in Wood v R (2002) 130 A Crim R 518, at 529 [65] - [66]:

"65 I have already touched upon the nature of the offence of dangerous driving. It may accommodate a range of driving behaviour. Dangerous driving is not the same thing as negligent driving. A momentary lapse of attention may be sufficient to constitute dangerous driving, but it may involve a range of driving fault which will elevate the seriousness of the offence in the circumstances of its commission. The test is whether objectively the driving is in reality actually or potentially dangerous to the public or another person: Kaighin v The Queen (1990) 1 WAR 390, 395. Therefore a principal circumstance delineating the seriousness of the offence will be an evaluation of the driving misconduct involved. That was particularly a matter for Groves DCJ. The verdict of the jury provided his Honour with no guidance beyond the conclusion of dangerousness.

66 Another important fact, of course, will be that the driving misconduct caused a death and the circumstances in which that occurred. By the Road Traffic Act, s 59(3), dangerous driving causing death or grievous bodily harm, as that term is understood by the law, is generally punishable upon indictment by imprisonment for 4 years or summarily by imprisonment for 18 months. Section 59A of that Act provides the offence of dangerous driving causing bodily harm. The offence is a simple offence punishable summarily for a first offence by imprisonment for 6 months or for a second or subsequent offence by imprisonment for 18 months. Dangerous driving without more is punishable under s 61 of the Act by a fine for a first offence and imprisonment for 6 months for a second or subsequent offence. Careless driving is a lesser offence again, punishable under s 62 by a fine. It can be seen therefore that these offences are graded according to the seriousness of the driving misconduct and by a particular reference to the seriousness of the harm which results. The most serious form of the offence is, of course, that which takes life."

3 For myself, while it may be of assistance to divide such cases broadly into those which represent momentary inattention or misjudgement and those where there is a serious or selfish disregard for the safety of other road users, or a degree of recklessness, those two categories do not mark out adequately the range of relevant circumstances concerned with the quality of driving fault involved. As I put it in Wood, at 525 [43], "The division of cases into broad categories may, if one is not careful, obscure the essential task of determining where to place the particular case, in the circumstances of the commission of the offence, into a hierarchy of seriousness." In that case, at 525 [45] - [46], I referred to conduct of the offender which was calculated to place him or her in a heightened state of risk of the commission of the offence:

"45 It is important, in my opinion, to consider why the voluntary consumption of alcohol and drugs is specifically mentioned when discussing the seriousness of an offence of this kind. It is, I think, because by that behaviour the offender is voluntarily reducing his or her capacity at all times while driving to exercise the degree of care and skill which the law demands of road users for the protection and safety of others with whom drivers may come into contact who may be put at risk by their driving behaviour.

46 The commission of an offence of dangerous driving does not of itself involve any wilful misbehaviour in the driving of a motor vehicle but it will be a more serious offence of dangerous driving if the offender has deliberately behaved in a way calculated to reduce their capacity to drive safely and to increase the likelihood of dangerous behaviour. To my mind, knowingly to drive while in a state of real fatigue is also behaviour of that kind, which will increase the seriousness with which an offence of dangerous driving caused by that fatigue is regarded by the Court."

4 At best in this case, on the facts proved at trial, the applicant appears to have been totally unaware that he was approaching the level crossing, and the car parked before it, at a considerable speed bearing in mind the nature of his vehicle, for what must have been a very long period of time over a considerable distance. There was such a degree of driving fault present in this case that in my opinion it would proper to describe it as being reckless behaviour of a magnitude sufficient to elevate the case into the most serious category of offences of this kind.

5 Then one turns to the fact that the dangerous driving caused the deaths of two people, grievous bodily harm to one person and bodily harm to another. I respectfully agree with Miller J that that must make the case substantially more serious and while the sentences for the individual offences should not be increased by reason of the multiplicity of deaths and other harm caused, it is proper that individual sentences should be so structured as to reflect in their totality the criminality of the offending behaviour, never losing sight of the principle of proportionality in sentencing and the fact that the gravity of the punishment inflicted increases exponentially with the length of the aggregate term: Herbert v R [2003] WASCA 61; (2003) 27 WAR 330.

6 I expressly concur, as to the relevance of the gravity of the harm caused, in the adoption by Miller J of the remarks of Lee CJ at CL in R v Wilkins (1988) 8 MVR 404, at 408-9.

7 Finally, I wish to endorse the remarks made by Miller J in this case and by Wheeler J in Parsons v R [2000] WASCA 407, at [21] - [22], that the sentencing framework in relation to these offences is unsatisfactory in the enormous discrepancy between the sentence available in a case of dangerous driving causing death or grievous bodily harm when the vehicle has been stolen, within the meaning of this area of the law, and in those cases where that is not the situation. To my mind, the fact that the vehicle is stolen is of no particular relevance to any matter of fact which

may sensibly be taken to aggravate the nature of the offence and the criminality involved in its commission. Of itself, it says nothing about the quality of driving misconduct or the nature of the harm which that misconduct may cause. I can, for myself, discern no sensible reason, therefore, why that fact alone should increase the maximum punishment available on indictment from 4 years imprisonment to 20 years where death is caused, and 14 years where grievous bodily harm is caused.

8 I note that the amendment to the Road Traffic Act 1974 (WA), s 59, which created that greatly increased range of penalties, was made by the Criminal Law Amendment Act 1992. At the same time, s 59 was amended by substituting a new subs (1a) which required a summary court to commit for trial on indictment any case where the court had reason to believe that the vehicle was stolen. That does not now appear to be the case. Under subs (1) a summary conviction penalty of 18 months imprisonment is provided. By the Criminal Code (WA), s 5, that has the effect that, although the offence of dangerous driving causing death or grievous bodily harm is a crime and therefore punishable upon indictment, it will ordinarily be tried summarily in a Court of Petty Sessions unless that Court orders trial on indictment in the relatively limited circumstances provided by s 5. The capacity to avoid the availability of the greater penalty range in that way seems to me to increase the oddity of this penalty provision. I would add my voice to the call that Parliament revisit this area.

9 WHEELER J: I have had the advantage of reading in draft the reasons for decision of Murray and Miller JJ. I agree with those reasons and have nothing to add.

10 MILLER J: This is an application for leave to appeal sentences aggregating 8 years' imprisonment imposed upon the applicant by Viol DCJ in the District Court at Perth on 30 September 2003, following the applicant's conviction by a jury of two counts of dangerous driving causing death and one of dangerous driving causing grievous bodily harm. The learned sentencing Judge also dealt with a plea of guilty to a Petty Sessions charge of dangerous driving causing bodily harm, under s 32 of the Sentencing Act.

11 The two counts of dangerous driving causing death and one count of dangerous driving causing grievous bodily harm, which were the subject of the District Court indictment, and the Petty Sessions charge of

dangerous driving causing bodily harm, all arose out of a motor vehicle accident that occurred on 10 July 2001 at Merredin. At about 10.30 pm on that night a road train, driven by the applicant, collided with the rear of a stationary sedan which had stopped at a railway crossing on Great Eastern Highway, east of the Merredin townsite. The sedan had stopped at the railway crossing because there was a goods train approaching the crossing. The railway crossing lights had been activated.

12 The collision between the road train and sedan forced the sedan into and under the goods train as it entered the level crossing. The road train then struck the goods train and became entangled with it. Such was the force of the collision that the engine of the goods train became detached and overturned. In consequence of the collision, two passengers in the sedan were killed and one suffered bodily harm. A passenger in the road train suffered grievous bodily harm.

13 The applicant pleaded not guilty to the indictable offences. He was tried before a jury between 1 and 5 September 2003 and convicted by unanimous verdicts of the jury on all counts.

14 The Crown prosecutor detailed in her opening address the facts of the case. They revealed that at approximately 10.20 pm on 10 July 2001 three men named Radford, Williams and Winhurst, left a Chinese restaurant in Merredin in Radford's white Falcon sedan, with the intention of driving to their quarters at Merredin airport. The three men were trained pilots and worked as flying instructors at the airport. To get to Merredin airport the Falcon sedan which was driven by Radford drove out of Pollock Avenue, Merredin, onto the Great Eastern Highway, which ran in a west to east direction through the Merredin townsite. The highway was a dual carriageway with a sealed bitumen surface and was well lit.

15 Radford had stopped at Pollock Avenue before turning onto Great Eastern Highway. He was about to turn right into the highway when the warning lights at a level crossing, which is almost on the junction of Great Eastern Highway and Pollock Street, began to activate. A map of the locality is annexed to these reasons and marked "A". It shows the level crossing a very short distance east of the Pollock Street, Great Eastern Highway junction.

16 Winhurst, who was in the front passenger seat of the Falcon, looked to his left as Radford was about to turn onto Great Eastern Highway. He saw headlights in the distance. Radford had ample time to execute a turn and to stop at the stop line at the railway crossing. The level crossing lights were then flashing and the train was approaching. There were no boom gates at the level crossing. Winhurst recalled seeing the locomotive and at least two carriages pass the stationary Falcon sedan, but the next thing he remembered was being cut out of the vehicle and taken to hospital.

17 The train driver was one Gilmore. He sounded the horn of the train about 200 metres before the crossing and activated it for five to six seconds. He did so again when about 50 metres from the crossing and for the same period of time. He saw the stationary vehicle at the level crossing. As the train approached the crossing at approximately 40 kph, Gilmore observed what he described as "a truck approaching very quickly from behind the stationary vehicle". Seconds later he saw it collide with the back of the stationary vehicle and propel it into the locomotive. He saw the vehicle go under the front of the locomotive.

18 The other occupant of the locomotive was one Currell. He was on the right hand side of it. He remembered the horn of the locomotive being activated and saw the lights flashing at the crossing. He also saw the stationary vehicle. When the locomotive was about an engine's length from the crossing he saw a truck approaching the crossing which did not appear to be slowing, veering away or showing any indication of breaking. Currell said that the locomotive was crossing the surface at Great Eastern Highway when the truck hit the rear of the stationary vehicle and forced the vehicle into the path of the locomotive.

19 The truck which Gilmore and Currell had seen was the road train driven by the applicant. It consisted of a nine-ton Freightliner prime mover connected to trailers. The applicant was driving it from Perth to Sydney. It was loaded with 28 tons of freight.

20 The applicant had left Welshpool at approximately 6 pm on the day in question. He had a co-driver, Michael Scott Cheyne. Each was to drive four hours before changeover. The applicant stopped at a Caltex roadhouse at Meckering. There he and Cheyne met another truck driver named Andrew Bolger and his brother Christopher. All men were acquaintances. When the applicant left Meckering he was the driver of the road train. He was followed by Andrew Bolger, who was also driving a road train. His was what was described as a B-double combination road train. His road train was not loaded.

21 Bolger followed the applicant along Great Eastern Highway towards Merredin, through an area known as Hines Hill. He was about two truck lengths behind the applicant's road train. Due to the fact that Bolger's road train was empty, his road speed picked up a lot quicker than that of the applicant's road train and when an overtaking lane presented itself, Bolger went to pass the applicant. He flashed his lights to let the applicant know what he was intending to do and proceeded to overtake the applicant's road train. As he attempted to pass the applicant, the applicant's vehicle picked up speed and Bolger was unable to pass. He called up the applicant on his two-way communication and asked him if he was going to let him in. He received no response. There was an oncoming truck which forced Bolger to abandon the overtaking manoeuvre. Shortly after he did this, he heard the applicant say on the two-way "I'm going to be quicker".

22 Bolger then followed the applicant into Merredin. The speed limit dropped from the open road limit of 110 kph to 90 kph and then to 70 kph. Bolger slowed considerably, to approximately 50 kph, as he reached the 70 kph zone in Merredin. The applicant's road train gained distance on him at this time. Bolger continued through Merredin on Great Eastern Highway and as he passed a landmark known as the Kalgoorlie Bitter tank, he saw the red flashing lights at the railway crossing near Pollock Avenue. It is convenient to quote from his testimony as to what he saw happen:

"CHONG, MS: So when you were at the Kalgoorlie Bitter tank, what did you see? --- I noticed that there were two red lights on the railway crossing for - the warning was flashing.

When you were at that landmark, the Kalgoorlie Bitter tank, where was the GKR road train? --- About 200 metres in front of me.

Is there any particular landmark that you are able to point to or describe? --- It's not on the photo - you can't see it. On the right-hand side about 200 metres in front - on the right-hand side the highway - is a Chicken Treat store.

A Chicken Treat store? --- Yeah.

So the Chicken Treat store is how many metres from the crossing? --- About 500 metres.

So when you were at the Kalgoorlie Bitter tank, you saw the red flashing lights and the GKR road train was at the Chicken Treat ahead of you? ---that's right.

What did you do in relation to yourself when you saw the red flashing lights? --- I was already doing about 50 kilometres an hour because I was going to stop previously. I backed off my speed again straightaway and applied the brakes ready to slowly pull up.

How did you stop off your speed? --- Took my foot off the accelerator.

And was there anything you had to do in relation to taking your foot off the accelerator? --- I applied my foot to the brake but, like I say, I was empty so I didn't need ---

...

So you were slowing down for what? --- To stop at the railway crossing.

And what did you see next when you dropped your gear? --- I was just slowly pulling up and just about at a stop already. The GKR truck in front of me was still - I don't know. He was still gaining speed on mine, so ---

What did you see apart from the GKR road train at the - near or about the motel? --- I didn't - didn't see anything else apart from the lights where - the railway cross flashing and the spotlight from the train coming along down the railway.

Where were the spotlights coming from? Where was the train coming from? --- From my right-hand side.

From your right-hand side, okay. Then what happened? --- Well, things were looking like it was getting a bit - getting a bit close for contact and I still noticed the truck hadn't - the GKR truck in front hadn't slowed down at all.

What did you do? --- And it got real close. I picked up the UHF quickly as I pretty much pulled over my truck at the same time and just said, 'Copy' and 'GKR' - split second, bang, everything smashed.

Okay. You picked up your UHF radio, said 'Copy to GKR.' After you said, 'Copy to GKR,' what was the next thing you saw? --- A split - a split second of tail-light just lit up, and then an awesome smash.

You say the split second, the tail-lights lit up. What do you mean by the tail-lights? --- The brake lights were applied.

The brake lights. Then what happened? --- And then it was just all over, then the truck hit the train.

What was the vision of the truck hitting the train? --- Something that I can't couldn't describe. It's just - just a mess, big pieces of plastic and metal hitting a big - big bit of steel going in opposite directions.

Okay, I will stop you there. How far back were you when you saw the GKR road train hit - hit the train? --- About 200 metres.

Sorry? --- 150 metres, 200 metres."

23 At the trial, the prosecution called Sergeant Robert Carson, a police sergeant attached to the major crash investigation section. He gave evidence that he had recovered the black box from the applicant's road train and sent it to the eastern states for the information in it to be downloaded. The information revealed that at the time when the railway crossing lights were activated, the applicant's road train was 864.8 metres from the point of impact with the sedan. The applicant was then driving with a 71.6 per cent throttle. The applicant's road train was driving with a 100 per cent throttle when it was 257.6 metres from the point of impact. Although the application of 100 per cent throttle does not appear to have immediately increased the speed of the vehicle, it is obvious that the throttle was depressed at that point. It was a factor which the learned sentencing Judge later considered to be significant. The data downloaded from the black box also revealed that the speed of the applicant's road train approximately 26 seconds prior to the collision was 66 - 67 kph. This was in the 70 kph zone. At 15 seconds prior to the collision, there was a sudden reduction in speed from 49.1 kph to 7.2 kph.

24 The applicant was interviewed by police on 18 July 2001, eight days after the accident. He said he had no recollection of the collision and only a memory of events that evening when he commenced work. He did not give any evidence at his trial.

25 When the learned sentencing Judge passed sentence on 30 September 2003 he first summarised the facts. He attributed the accident as having been solely the fault of the applicant. He pointed out that there were no excuses to be found for the act of dangerous driving. There was no evidence of driving for long hours and no indication of any problem of a personal nature which could have affected the applicant's concentration in the period leading up to the collision. His Honour then concluded:

"Based particularly on Mr Andrew Bolger's evidence, which the jury obviously accepted, as I do also, before you reached Merredin you had displayed an arrogance on the road. You refused to allow Mr Bolger to pass you, stating that you were 'faster' than he was. It should be remembered that he was driving a much lighter road train and it would have been reasonable for him to be able to pass you.

You then drove through the Merredin town site at an average speed of 67 kilometres an hour, a speed which I consider to be far too fast, bearing in mind the weight and size of your vehicle, the lack of manoeuvrability of it and the stopping distance required. Further, there was the fact that it was in fact a built-up area. You appeared to be intent on keeping ahead of Mr Bolger's road train. Mr Bolger said he usually drove through Merredin at a speed of about 45 to 50 kilometres an hour, a speed which in my view was consistent with the factor's I've already mentioned.

As you went through the town site, the goods train was approaching the crossing from your right-hand side. The evidence is that it triggered off the flashing light some 47 seconds before it was due to reach the crossing. The average speed of that train was 38 kilometres an hour. You were warned of the crossing by a number of signs; firstly, those on the road, which faced you as you drove towards the crossing, and you were warned of the goods train by the flashing lights. It is also the evidence that the spotlights on the train could be seen from a considerable distance.

During this period, the small sedan driven by Mr Radford approached the crossing and stopped at the white line. It is the evidence that the goods train sounded its horn at least twice. Despite all the warning signals and obviously clear vision of the approaching train, you continued towards the crossing as though it was clear and without slowing down, because your attention was focused elsewhere, you obviously did not see the stationary car until the last second, and when it was too late. The impact was unavoidable, with the tragic consequences we have heard about. It was tragic because of the deaths and injuries to the young people in the prime of their lives, and tragic also because of the devastating effects upon the victims, immediate families and their wide range of friends.

Having sat through the trial and reviewed the evidence, I have concluded that your manner of driving was arrogant and of great potential danger to other road user, as was clear, there was no question of any momentary inattention. An accident of the type which occurred was inevitable. The matter has given rise to some difficulties in sentencing; it was the basis of the crown case that you failed to keep a proper lookout and the question arises, why did you not see the small car, which you obviously did not until the last second or so.

The proven facts are, as I have said, that you were driving at an average speed of 67 kilometres an hour, across the stretch of road - along the stretch of road, up to the crossing and through this built-up area. It is the case that - according to Mr Bolger, and it is reasonable to accept this - that a road train of your size and weight took about 400 metres to pull up before a crossing. 100 metres from the crossing, the computer showed that you accelerated your vehicle - the throttle to a 100 per cent, therefore there was an attempt at that point to increase the speed of your vehicle. At that time the flashing lights would have been clearly available, had you been keeping a proper lookout. As I have said, there were 47 seconds from the time the train first triggered the lights - the flashing lights, until it arrived at the intersection.

Although one cannot be certain as to the reasons why you did not stop, there must have been a reason consistent with your failing to keep a proper lookout why you did not. A conclusion in my view, which is well open on the facts, is that you were attempting to beat the train across the crossing, but in any event, it is clear that your driving involved a callous disregard for other road users. Consistent with this view and the general driving displayed by you, is the fact that this is the third occasion that you have struck the rear of another vehicle whilst driving road trains."

26 The learned sentencing Judge's conclusion that the black box revealed an attempt to accelerate at a point 100 metres from the crossing was an error. That point was 257.6 metres from the crossing. The suggestion that the applicant was attempting to beat the train across the crossing was not open unless the learned sentencing Judge was satisfied beyond reasonable doubt: R v Langridge (1996) 17 WAR 346; 87 A Crim R 1. There is no indication that the learned sentencing Judge was either so satisfied or could have been so satisfied. To the extent that his Honour made reference to the possibility of an attempt to beat the train across the crossing, it was, in my view, an error.

27 These were the only two errors which I consider the learned sentencing Judge made. In the context of the case they have not, in my view, created any miscarriage of justice. They do not reveal any relevant error in the sentencing exercise. Whether it was 100 or 250 metres from the crossing that the throttle was opened up to 100 per cent does not matter a great deal. The learned sentencing Judge did not suggest that he had reached a conclusion beyond reasonable doubt that there was an attempt to beat the train across the level crossing.

28 When sentence was imposed upon the applicant, the learned sentencing Judge took account of all matters personal to the applicant. He noted his prior record of convictions which included a conviction in the Seymour Magistrate's Court, Victoria on 1 December 2000 for careless driving and a conviction in the Court of Petty Sessions at Eucla at 8 June 1992 for dangerous driving causing bodily harm. There were numerous convictions for speeding. The learned sentencing Judge noted that the accident in question was the third occasion upon which the applicant had struck the rear of other vehicles whilst he was driving road trains. The conviction for careless driving and that for dangerous driving causing bodily harm were apparently a consequence of such collisions.

29 The learned sentencing Judge considered that there were very few mitigating factors in favour of the applicant. He concluded that there was no remorse shown by him and made reference to the video record of interview conducted by police officers, in which his Honour said the applicant had "displayed an almost offhand attitude to the accident and its consequences". His Honour was not satisfied that this was brought about by injuries to the applicant himself and the treatment he was receiving.

30 I have looked at the video record of interview in which the applicant was interviewed. His response to questions appears to be relatively straightforward. It is true that there is no statement or indication by him of remorse in consequence of the accident, but I was unable to find any section of the video record of interview on which any question was put to him which may have elicited a response to that issue.

31 In a pre-sentence report prepared for the assistance of the learned sentencing Judge, the writer described the applicant as "deeply remorseful during interview" but made the observation that the applicant had "belatedly accepted that his careless driving had caused the death of two people and serious injuries to another". There was, therefore, evidence of remorse before the learned sentencing Judge, although the extent of it was debatable.

32 The learned sentencing Judge referred to the good work history of the applicant and close family links. He also referred to references from various people who spoke highly of the applicant. His Honour then concluded that a sentence of imprisonment to be served immediately was the only disposition of the matter open and made the following observations:

"Although it is unfortunate and inevitable that road trains will always share the roads with sedans and obviously smaller vehicles, drivers of heavy and larger vehicles must be made aware of the responsibilities they have to drive carefully and safely and of the severe consequences which will follow should they break the accepted rules of driving such vehicles. I concur with the Crown's submission that a driver of a vehicle such as yours has a higher duty of care than the driver of a small and lighter vehicle."

33 His Honour made reference to the victim impact statements he had received and to the devastating effect that the applicant's actions had on the immediate and extended families of the victims. He then concluded that a very lengthy gaol term was required because of the extreme seriousness of the applicant's conduct and to act as a deterrent to other drivers, particularly in the road transport industry.

34 His Honour concluded that under the old sentencing law an appropriate total term of imprisonment would have been 12 years, made up of 4 years on count 1, 4 years on count 2, 3 years on count 3 and 1 year for the offence the subject of the s 32 notice, all to be served cumulatively. Under new sentencing legislation this became a sentence of 8 years' imprisonment.

35 In imposing the sentences of 4 years on each of counts 1 and 2, the learned sentencing Judge imposed the maximum. He said in that regard:

"This is the maximum term to be imposed and in my view it is difficult to envisage a worse case of dangerous driving causing death or grievous bodily harm as this one."

An order for eligibility for parole was made. The applicant's motor driver's licence was cancelled for life.

36 The grounds upon which the applicant seeks leave to appeal are:

"1. The learned sentencing Judge erred in imposing the maximum sentence of 4 years' imprisonment for each offence of dangerous driving causing death and imposing 3 years' imprisonment for dangerous driving causing grievous bodily harm in circumstances where the applicant's conduct could not be said to be within the worst category of cases of that kind and accordingly, the sentences were manifestly excessive.

2. The learned sentencing Judge erred in fact and law in assessing the applicant's offending as being within the worst category of offences of that kind.

PARTICULARS

(i) The learned sentencing Judge did not make a finding beyond reasonable doubt that the accident was caused by the applicant trying to 'beat the train', but still sentenced on the basis that his driving showed a callous disregard for the safety of other road users;

(ii) A conclusion that the applicant was trying to beat the train was not able to be drawn beyond reasonable doubt from the evidence, and in particular, the learned sentencing Judge erred in fact in his assessment of the evidence as to the applicant's speed and throttle percentage;

(iii) The learned sentencing Judge erred in describing the applicant's speed as 'far too fast' in circumstances where he was driving at all times within the posted speed limit;

(iv) The learned sentencing Judge gave too much weight to the applicant's prior convictions and insufficient weight to his good character.

3. The applicant should have been sentenced on the basis that the accident was caused by a sustained failure to keep a proper lookout, but was not attended by aggravating circumstances.

4. The learned sentencing Judge erred in making all sentences cumulative upon one another in circumstances where all offences arose out of a single episode of driving and therefore should have attracted concurrent sentences.

5. The learned sentencing Judge failed to have proper regard to the application of the totality principle in imposing a sentence that was grossly disproportionate to the gravity of the offending behaviour.

6. The learned sentencing Judge erred in imposing a life disqualification from holding or obtaining a driver's licence.

PARTICULARS

(i) The circumstances of the offences, where the accident was caused by a failure to keep a proper lookout, did not justify a life disqualification;

(ii) The life disqualification being imposed in addition to a term of imprisonment showed a failure to have regard to the severity of the combination of a sentence of immediate imprisonment and disqualification from holding or obtaining a driver's licence."

37 The offence of dangerous driving causing death or grievous bodily harm is contained in s 59 of the Road Traffic Act 1974 (WA) ("the Act"). The penalty for each is the same. In "ordinary" cases, imprisonment is for 4 years. There is an alternative of a fine. The offence of dangerous driving causing bodily harm is contained in s 59A of the Act. It carries a maximum penalty of imprisonment for 18 months.

38 The Court convicting a person of dangerous driving causing death or grievous bodily harm must disqualify the offender from holding or obtaining a driver's licence for a period of not less than 2 years. A second conviction for dangerous driving causing bodily harm carries a minimum disqualification of 18 months.

39 The learned sentencing Judge imposed the maximum of 4 years' imprisonment for each of the offences of dangerous driving causing death. The sentence of 3 years imposed for dangerous driving causing grievous bodily harm was one year less than the maximum.

40 The maximum penalty of 4 years for an "ordinary" case of dangerous driving causing death or grievous bodily harm seems to be surprisingly low. This is particularly so when it is contrasted with a case of dangerous driving causing death or grievous bodily harm, occasioned where the offender was, at the time of the offence, unlawfully driving a motor vehicle without the consent of the owner or person in charge of it. In such an instance where death results, the maximum penalty is 20 years and where grievous bodily harm results, 14 years.

41 It is difficult to understand why the maximum penalty for dangerous driving causing death when driving a stolen vehicle is five times more than the maximum for ordinary case of dangerous driving causing death. It must be of little solace to the families of persons killed as a result of dangerous driving of another that the offender can only be sentenced to 4 years maximum in an ordinary case but five times that if he happens to be driving a stolen vehicle. In my view urgent attention is required by Parliament to correct the disparity between the two maxima.

42 Observations to a similar effect were made four years ago by Wheeler J in Parsons v R (2000) 32 MVR 319; [2000] WASCA 407 at [21] - [22]:

"21 ... where dangerous driving causes death and the vehicle is being unlawfully driven without the consent of the owner, the maximum sentence attracted is one of 20 years' imprisonment. It may, at least in some circumstances, not be entirely in accord with community standards to have a scale of offences in which an offence causing death carries a penalty of 4 years while the offence of stealing a vehicle adds potentially a further 16 years to that penalty. While offences against property are not to be regarded lightly, and while theft of a vehicle may often involve an intention to drive it in a dangerous or reckless manner, it is nevertheless my impression that the principal concern of members of the community is for their physical safety and that they would regard the prime concern of the criminal law as the preservation of their life and health. If that is so, then it is difficult to avoid the conclusion that the most important factor in any of these offences is the degree of selfish disregard for safety for other members of the public which is shown by the manner of driving. If that analysis is adopted, then reference to the statutory maxima may produce some anomalies.

22 For my own part, I would venture the view that the somewhat confusing variation in sentences for offences involving similar types of driving might be avoided were the scale of penalties for driving offences more closely related to the manner of driving, with circumstances such as the fact that the vehicle is stolen or that grievous bodily harm or death results being recognised as aggravating circumstances which would either further increase the penalty within the relevant range or which could lead to an additional penalty. ..."

43 In imposing the maximum terms of imprisonment on each of the counts of dangerous driving causing death the learned sentencing Judge thought it difficult to envisage a worse case. His Honour also thought this was so in relation to the offence of dangerous driving causing grievous bodily harm, but imposed a sentence of only 3 years' imprisonment.

44 There is no reason why the maximum sentence of imprisonment should not have been imposed in this case if the act of dangerous driving causing death was one of the worst cases of its kind and, if there were no mitigating factors in favour of the offender. The maximum sentence is not reserved for the worst possible case imaginable. This was pointed out by Burt CJ in Bensegger v R [1979] WAR 65 at 68 as follows:

"A maximum sentence prescribed by statute is not reserved for the worst offence of the kind dealt with by it that can be imagined. If such were the case it could never be imposed as the addition of further non-existing but aggravating circumstances would never be beyond the reach of imagination. The true role as I understand it is that the maximum sentence should be reserved for the worst type of case falling within the prohibition or, as it is expressed by Dwyer CJ in Reynolds v Wilkinson (1948) 51 WALR 17, at 18, 'for the worst cases of the sort'. That expression should be understood to be marking out a range and an offence may be within it notwithstanding the fact that it could have been worse than it was."

45 I consider that the dangerous driving of the applicant in this case was truly in the worst category of cases. In my view, the learned sentencing Judge's conclusion that the driving of the applicant displayed an arrogance on the roadway and a callous disregard for other road users was a conclusion which was clearly open to him.

46 In my view, the applicant had a very heavy responsibility driving such an enormous road train on a public road and in particular, through a country town. It was his obligation to keep a keen lookout for other traffic on the road and for the possibility that he may be required to stop at a railway crossing. Large vehicles operating on public roads are especially capable of producing enormous damage to human life if driven irresponsibly: R v Wilkins (1988) 38 A Crim R 445; 8 MVR 404 per Lee CJ at CL at 408.

47 This case is one of tragic and unnecessary loss of human life and serious injury on a public road occasioned by a person driving a very heavy vehicle in circumstances where he failed completely to see, until the last minute, a level crossing on which there were flashing lights and at which a vehicle was stationary. The speed of the road train was just below the speed limit for the town of Merredin as it drove through the township. To drive such a huge vehicle at a speed close to the limit in a country town showed a disregard for the life and safety of others. The submission of counsel for the applicant that as long as the applicant drove within the speed limit, it could not be said that he was driving dangerously, is patently untenable. There was evidence from Bolger that he considered 45 - 50 kph to have been an appropriate speed to drive a loaded road train like the applicant's through Merredin. He said:

"Travelling through that street in Merredin, knowing that the crossing's there, I've always been aware that I may have to pull up for a crossing so I will travel with a road train through that town with that weight and that combination 45, 50 kilometres an hour."

48 Relevant to the applicant's failure to keep a proper lookout, Bolger also said:

"CHONG, MS: How many times have you been in the position driving a road train laden with 30 to 35 tonnes of goods where you have to stop before a crossing? --- Every single time I get behind the wheel of that truck, which would be once every single week.

How much distance would you allow yourself travelling within the speed limit of 70 kilometres for you to safely pull up before the crossing? --- 450 to 500 metres."

49 Although the learned sentencing Judge made reference to the possibility that the applicant may in this case have been trying to beat the train, he clearly reached no such conclusion about it. The conclusions reached by the learned sentencing Judge as to the opening of the throttle were erroneous as to distance, but not otherwise.

50 However, it does seem to me that the learned sentencing Judge, whilst rightly concluding that the case was one of the worst of its kind, made no allowance for the fact that there was some evidence of remorse on the part of the applicant. I consider that because of that evidence of remorse, something less than the maximum was appropriate for the two counts of dangerous driving causing death. In my view, a sentence of 3 1/2 years under the old law would have been appropriate, rather than the 4 year maximum, for each of counts 1 and 2.

51 It was submitted on the hearing of the appeal that the applicant's driving did not come into the worst category of dangerous driving causing death or grievous bodily harm because the accident was not caused "by a sustained failure to keep a proper lookout" and was not attended by aggravating circumstances. The submission seems to concede that the accident did not arise through "momentary inattention or misjudgement" but the submission was that the case fell between two commonly accepted categories of dangerous driving. Those categories are, firstly, cases in which an accident has arisen through momentary inattention or misjudgement, and secondly, cases where the accused has driven in a manner which has shown a selfish disregard for the safety of other road users, or with a degree of recklessness. I made reference to these categories in R v Wood (2002) 130 A Crim R 518; 36 MVR 94 at 538, where I said:

"In the course of his sentencing comments the learned trial Judge understood that there are two categories of dangerous driving causing death which are commonly experienced in the courts. They are cases in which an accident has arisen through momentary inattention or misjudgement and cases where the accused has driven in a manner which has shown a selfish disregard for the safety of other road users or with a degree of recklessness. In Smith v The Queen [1976] WAR 97 at 107 - 108, Jackson CJ made this clear in the following passage:

'The Court of Appeal in England in R v Guilfoyle [1973] 2 All ER 855, recently considered the subject of the penalties to be imposed for this offence, and pointed out that cases of this kind fall into two broad categories; "first, those in which the accident has arisen through momentary inattention or misjudgement, and secondly those in which the accused has driven in a manner which has shown a selfish disregard for the safety of other road users or of his passengers or with a degree of recklessness. A sub-division of this category is provided by the cases in which an accident has been caused or contributed to by the accused's consumption of alcohol or drugs"; and that offenders may have good or bad driving records; the Court then said, at p 845: "In the judgment of this Court an offender who has been convicted because of momentary inattention or misjudgement and who has a good driving record should normally be fined and disqualified from holding or obtaining a driving licence for the minimum statutory period or a period not greatly exceeding it, unless of course there are special reasons for not disqualifying. If his driving record is indifferent the period of disqualification should be longer, say two to four years, and if it is bad he should be put off the road for a long time. For those who have caused a fatal accident through a selfish disregard for the safety of other road users or their passengers or who have driven recklessly a custodial sentence with a long period of disqualification may well be appropriate, and if this kind of driving is coupled with a bad driving record the period of disqualification should be such as will relieve the public of a potential danger for a very long time indeed." '

I would, with respect, adopt and follow these views. It will be seen that this case falls into the second, or more serious class of offences, even though the offender has a good driving record. For the more serious category, as the Court of Appeal said, a custodial sentence may well be appropriate."

52 In my view the driving of the applicant in this case fell within the category of a selfish disregard for the safety of other road users. That is because the applicant was driving a road train through a country town at a speed which created a potential danger and in circumstances in which he disregarded the safety of others by failing to keep a proper lookout. The evidence was clear that he had ample opportunity whilst driving on Great Eastern Highway to see the commencement of the activation of the level crossing lights. The locality plan made available to the Court on the hearing of the appeal reveals that Great Eastern Highway is more or less straight for approximately 2000 metres approaching the level crossing.

53 It is a mistake to concentrate too closely on categories of dangerous driving causing death. However, in this case, there can be little doubt but that the applicant fell within the second category identified in R v Guilfoyle [1973] 2 All ER 844, namely driving in a manner which showed a selfish disregard for the safety of others on the roadway.

Grounds 4 and 5 - Cumulation of sentences and totality

55 Counsel for the applicant submitted that the learned sentencing Judge erred in making each sentence cumulative on the other, thus resulting in a total sentence which was grossly disproportionate to the gravity of the offending. Counsel argued that the sentences imposed by the learned sentencing Judge should have been concurrent rather than cumulative because the offences arose "out of a single transaction". It was submitted that all four offences arose out of "a single act of dangerous driving". In support of this submission, counsel relied upon the observations of Anderson J in Jarvis v R (1993) 20 WAR 201 at 215 to the following effect:

"... in taking a 'last look' at the total imprisonment imposed, the court will continue to apply the principle that the sentence should be proportionate to the degree of criminality involved."

56 However, in cases of dangerous driving causing death or grievous bodily harm where there have been multiple deaths or serious injury to human life, different considerations may apply. In R v Wilkins (supra), Lee CJ at CL (with whom Carruthers and Allen JJ agreed), said at 449 - 450:

"Parliament has laid down in s 52A Crimes Act 1900 (NSW) that the maximum penalty for culpable driving involving driving in a manner dangerous and causing death is five years and it seems extraordinary at the outset that it can be said that, whether you kill one or whether you kill 50, the penalty is to be five years, provided you do it on the one occasion.

The reality on the situation surely is that drivers of all vehicles on the road must be taken to know that they can do enormous damage to life and limb if they drive irresponsibly, drive in a manner dangerous to the public.

The large vehicles which operate on the roads today - and the appellant's vehicle is in that class - are especially capable of producing enormous damage to human life if driven irresponsibly and it would be extraordinary that a driver, knowing that he may, if he gets himself onto the wrong side of the road on a main highway, kill one or four or ten or a dozen people or a bus full of people, can come before a Court and claim that he should be sentenced and kept in gaol in respect of the death of only one. To me that itself is demonstrative of the fact that the practice cannot be an inflexible practice and that it must give way to reason and commonsense. The criminality and gravity of all the offences is not to be judged merely as if the appellant were charged under s 4(1) of the Motor Traffic Act 1909 (NSW) with dangerous driving. To mete out a penalty that recognises the actual consequences of his action is not unjust or unfair, indeed, it is wholly in accord with the ordinary principles of justice. Where the maximum penalty for any one offence is insufficient to reflect the gravity of the crime committed the court not only may but ought to impose cumulative sentences."

I respectfully adopt and follow these observations. They seem to me to be entirely in accordance with principle. They are particularly relevant to Western Australia, where the maximum penalty for "ordinary" dangerous driving causing death or grievous bodily harm is set far below that which exists in some other Australian States, and too low by comparison with the maximum penalties for the offence where the dangerous driving is in a stolen vehicle.

57 In White v R (2003) 39 MVR 157; [2003] WASCA 197, where the applicant had pleaded guilty to two counts of manslaughter arising out of a motor vehicle collision in the town of Northam, Templeman J (with whom Scott and Wheeler JJ agreed) at [19] - [20]) accepted the sentencing Judge's view in that case that in Western Australia "the number of deceased persons or the number of victims (does) not automatically increase penalty by that number arithmetically, but the fact that more than one person was killed was certainly a factor in the overall consideration".

58 In R v Snewin (1997) 25 MVR 553, the Court of Criminal Appeal of the Supreme Court of South Australia reduced from 5 years to 4 years a sentence of imprisonment imposed upon an offender who had driven a semi-trailer along a public highway at 90 - 100 kph and veered to the incorrect side on a number of occasions, before finally colliding with two cars travelling in the opposite direction on their correct side of the carriageway. Six persons were killed, two in one car and four in the other. The offender had taken drugs to combat fatigue and these drugs had been made available to him by his employer. Olsson J (with whom Bleby J agreed) said at 555:

"One commences with the assessment that although six people were killed that horrific outcome was the unintended and unfortunate product of a single accident which resulted from exhaustion on the part of the driver due to overwork."

"This case is at the higher end in the scale of seriousness for this first offence. The element of general deterrence must loom large in the sentencing process. However, it must not be overlooked that the appellant is to be punished for his conduct in respect of one incident and not in respect of six separate deaths. It is, of course, chance that this reckless conduct had such extensive results. Nevertheless, the fact that he put so many people at risk by his irresponsible conduct, when it should have been apparent over a significant period of time that he was in no fit state to drive, is a matter which cannot be ignored."

To the extent that these observations may conflict with what was said by Lee CJ at CL in R v Wilkins, I would prefer to follow the views of Lee CJ at CL.

60 In other cases, courts have thought it appropriate to impose proportionate head sentences and allow them to be served concurrently rather than order cumulative sentences in cases in which there has been more than one victim. In some cases concurrent sentences are imposed. In Koltasz v R [2003] WASCA 38 the Court of Criminal Appeal (Malcolm CJ, Anderson and Miller JJ) dismissed an appeal against a sentence of 21/2 years' imprisonment imposed on each of two counts of dangerous driving causing death, to be served concurrently, and a further sentence of 12 months' imprisonment for dangerous driving causing grievous bodily harm, to be served concurrently. At [46] I made reference to the fact that the learned sentencing Judge, in his sentencing comments, referred to the tragedy of the incident of driving by reason of the fact that two young men had been killed and one seriously injured, thus causing a sense of waste and sorrow to families, friends and the local community in which the deceased and injured man lived. There is nothing in the reasons in the Court of Criminal Appeal which suggests that the learned trial Judge could not have imposed cumulative, rather than concurrent sentences.

61 In accumulating the sentences as the learned sentencing Judge did in this case it was, of course, necessary to take full account of the totality principle. More accurately stated, it was the obligation of the learned sentencing Judge to apply the principle that the overall sentence should be proportionate to the degree of criminality involved. In Jarvis v R, above, at 206 - 207, Ipp J formulated it this way:

"... in taking a 'last look' at the total imprisonment imposed, the court will continue to apply the principle that the sentence should be proportionate to the degree of criminality involved. That principle is, after all, basic to the law of sentencing: see Wicks v The Queen (1989) 3 WAR 372 at 379 - 380. The crushing effect of a term of imprisonment is merely one of the mitigating factors that is to be taken into account when determining whether a particular term of imprisonment is proportionate to the criminality evinced.

While the subjective effect of a cumulative sentence upon a particular individual is plainly relevant, it cannot be regarded as of paramount importance. The difficulty expressed in Vaitos (at 301) by O'Bryan J with the concept that a richly deserved sentence should be reduced because the offender may feel crushed by it aptly illustrates its limitations as a mitigatory force.

The overriding principle is accordingly that the aggregate sentence (even when punishment is being imposed for multiple offences) should fairly and justly reflect the total criminality of the offender's conduct: see Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465; Evangelista v The Queen; R v Glenister [1980] 2 NSWLR 597 at 612; Lade v Mamarika [1986] NTSC 32; (1986) 83 FLR 312."

The learned sentencing Judge did not make any particular reference to this principle, but clearly his Honour thought that it was necessary to make all sentences cumulative to properly reflect the degree of criminality exhibited by the applicant.

62 There is no doubt that the ultimate sentence imposed by the learned sentencing Judge was very high. I have not been able to find a case in Western Australia where a sentence of 12 years' imprisonment (under the old law) for offences of dangerous driving causing death or grievous bodily harm has ever been imposed. The longest sentences for motor vehicle related death cases are manslaughter cases in which sentences of 10 years have been imposed. One such case was White v R (supra). Another was Punch v R (1993) 9 WAR 486. In that case, Murray J made it clear that it is very difficult to find any tariff applicable to sentencing for particular types of manslaughter, whether they be motor vehicle manslaughter cases or otherwise. At 496 his Honour said:

"... what emerges with clarity is that the nature of the offence is such as to preclude any sensible reference to a tariff applicable to sentencing for particular types of manslaughter: Wicks v R (1990) 3 WAR 372.

This was of course a case of manslaughter by the use of a motor vehicle. Such cases are distressingly, and perhaps increasingly, common. For deterrent purposes, and generally for the purpose of the protection of the community, the Court is obliged to have regard to the prevalence of the offence in arriving at an appropriately proportionate sentence. The process is one which requires the Court to sentence for an offence, the gravity of which is to be measured in part by having regard to the prevalence of the offence and the need for deterrent sentences, and by giving less weight to mitigating factors: R v Peterson (1984) WAR 329; R v Morley (1985) WAR 65."

63 In Punch v R (supra) Murray J concluded that the decision in Laporte v R [1970] WAR 87, which had sometimes been regarded as the benchmark for motor vehicle manslaughter cases, was no longer appropriate to 1993. His Honour said at 497:

"In Laporte v R (1970) WAR 87, whilst recognising that motor vehicle manslaughter, as it is sometimes called, was not an offence for which a tariff could be discerned, it was held that in the circumstances a sentence of four years imprisonment was too grave and it was reduced to a sentence of two years imprisonment. That case was regarded for some years as setting something of a benchmark against which to measure the adequacy of sentences for such cases. But, in my opinion, that has ceased to be the case. As Malcolm CJ said in Stebbings (1990) at 540, the general comments made in Laporte 'may need to be reconsidered in the light of prevailing circumstances and the carnage on our roads.' By the time Ainsworth v D (A Child) (1992) 7 WAR 102 was decided, the Court was of the view that sentencing in such cases did require reconsideration. The matter was discussed by Malcolm CJ at 115-6. The offence was one of dangerous driving causing grievous bodily harm, committed by a child aged 16 years. But Malcolm CJ concluded:

'In my opinion, the continued carnage on our roads and the increasing prevalence of dangerous and reckless driving by juveniles and young adult offenders, particularly those making unauthorised use of motor vehicles or driving stolen vehicles, makes it necessary to reconsider the approach to sentencing in these cases where death or injury has resulted.' "

These observations are particularly pertinent to the 21st Century. In 2004 there is even more awareness of the misery caused to the families of victims of motor vehicle related deaths than there was in 1993. Road safety campaigns over the last decade have increased the need for vigilance whilst driving on public roads. Victim support groups have highlighted to society the terrible toll on family life brought about by such killings on the roads.

64 Counsel for the applicant made reference to a number of decided cases in New South Wales, Victoria, South Australia and Western Australia which he said supported the submission that the sentence imposed in this case was the longest to have been imposed in Western Australia for dangerous driving causing death, grievous bodily harm and/or bodily harm and "one of the longest sentences Australia wide". There have been some Victorian cases in which sentences of 9 years have been imposed for the offence of culpable driving causing death but for that offence in Victoria the maximum is 20 years' imprisonment. In New South Wales there have been sentences of 7 years for aggravated dangerous driving causing death, but the maximum for the offence is 14 years. In South Australia sentences seem to be lower.

65 Whilst it is true that no case can be readily found in which a sentence as severe as 12 years' imprisonment (under the old law applicable in Western Australia) was imposed, it is necessary to recognise that there are different sentencing regimes applicable in different Australian States and what might be regarded as the norm for a motor vehicle manslaughter or offence of dangerous driving causing death in one State, may not necessarily be appropriate in another. Examples of cases from this State and other States provide only guidance on appropriate sentences. The cases vary widely in their facts and they must be applied with considerable care: see Allen v R, unreported; CCA SCt of WA; (Kennedy J); Library No 950215; 27 April 1995 at 6. I can see no reason why, in a bad case of dangerous driving causing death and/or grievous bodily harm involving multiple deaths or serious injury, a sentence of 10 years or more should not be imposed.

66 However, there was a need to ensure that the aggregate sentence, in this case, fairly and justly reflected the total criminality of the applicant's conduct. I am of the view that the sentences on the three counts on the indictment failed to reflect sufficiently the element of remorse. They should, in my view, have been sentences of 31/2 years for each of counts 1 and 2 (dangerous driving causing death) and 2 years for count 3 (dangerous driving causing grievous bodily harm). I consider that it was appropriate for the learned sentencing Judge to make each of these sentences cumulative, leading to a sentence of 9 years' imprisonment under the old law. For the offence of dangerous driving occasioning bodily harm, the sentence of 1 year imprisonment was, in my view, appropriate, but I consider that in the exercise of the "totality principle" that sentence should have been ordered to be served concurrently with the sentences the subject of the indictment.

67 I am therefore of the view that the learned sentencing Judge erred in the exercise of his discretion and ought not to have imposed a sentence in excess of 9 years' imprisonment. In my view, that would realistically have reflected the gravity of the applicant's criminal conduct. Under the provisions of the Sentence Legislation Amendment and Repeal Act 2003, Sch 1, cl 2(1) each of the sentences must be reduced by one-third, with the result that the appropriate sentences were, in my view:

68 The three offences the subject of the indictment should be ordered to be served cumulatively and the offence, the subject of the s 32 notice, concurrently. As a result, the effective sentence should have been 6 years' imprisonment and not the 8 years imposed by the learned sentence Judge.

69 Ground 5 of the grounds of appeal therefore has substance.

70 This ground contends that the circumstances of the fatal accident did not justify a life disqualification. It is also contended that by imposing such a disqualification in addition to the terms of imprisonment, the learned sentencing Judge failed to have regard to the severity of the combination of sentences. I can see no substance in this submission. The period of disqualification to be imposed upon the applicant was a matter of discretion for the learned sentencing Judge and under the provisions of s 59 of the Act, a conviction for the offence of dangerous driving causing death or grievous bodily harm meant a disqualification from holding or obtaining a driver's licence for a period of not less than 2 years. For a conviction for a second offence under s 59A of the Act (which this was), a disqualification for a period of not less than 18 months was required.

71 Although the learned sentencing Judge did not impose separate disqualifications for each of the offences, he should have done so. In my opinion, disqualification for life was appropriate for the offences of dangerous driving causing death. The offences were in the worst category and having regard to the applicant's record of convictions, which included a previous conviction for dangerous driving causing bodily harm when his motor driver's licence was disqualified for a period of 12 months, I am unpersuaded that a disqualification for life was grossly excessive. The disqualifications should, in my view, have been for life in relation to counts 1 and 2 on the indictment, for 10 years on count 3 on the indictment and for 5 years on the s 32 matter. As a disqualification for life on any offence means exactly what it says, the other disqualifications are academic, but should necessarily have been imposed under the provisions of s 59 and s 59A of the Act.

72 I would grant leave to appeal and allow the appeal in relation to ground 1 and ground 5 in part. I would quash the sentences imposed by the learned sentencing Judge and substitute in lieu thereof the following sentences:

73 I would order the sentences imposed in relation to the indictment to be served cumulatively but the sentence imposed in relation to the s 32 notice to be served concurrently. The effective sentence thus becomes 6 years' imprisonment. The sentences should take effect from the date upon which they were directed to commence by the learned sentencing Judge, namely 5 September 2003. I would dismiss the grounds of appeal other than grounds 1 and 5.

• The facts
• Sentencing comments
• Grounds of appeal
• Conclusion