Criminal law and procedure - Sentencing - Dangerous driving causing death and grievous bodily harm - Vehicle running off road - Driver affected by alcohol and fatigue - Sentence of imprisonment - Whether sentence should have been suspended

Road Traffic Act 1974, s 59(2)(b)

Chamberlain (No 2) [1984] HCA 7; (1984) 153 CLR 521

Davies & Cody [1937] HCA 27; (1937) 57 CLR 170

Dinsdale v R [2000] HCA 54; [2001] 175 ALR 315

Hodges v Hagan [2001] WASCA 41

Jiminez v The Queen [1992] HCA 14; [1992] 173 CLR 572

Kahatapitye v R, unreported; CCA SCt of WA; Library No 980232; 1 May 1998

Shepherd v R (No 2) [1990] HCA 56; (1990) 170 CLR 573

Smith v R [1976] WAR 97

Vrisakis v Australian Securities Commission (1993) 9 WAR 395

1 MALCOLM CJ: In my opinion, this application for leave to appeal against sentence should be granted, but the appeal dismissed. I have reached that conclusion for the reasons to be published by Miller J with which I agree.

2 ANDERSON J: I agree with the judgment of Miller J. There is nothing I can usefully add to his reasons for concluding that the appeal against conviction should be dismissed and that whilst the application for leave to appeal against sentence should be allowed that appeal should be dismissed.

3 MILLER J: The appellant was charged on indictment with two counts of dangerous driving causing death and one of dangerous driving causing grievous bodily harm. All counts arose out of the same act of driving which occurred on 8 April 2000 at Wongan Hills.

4 At about 4.45am on 8 April 2000 the appellant drove a Holden Calais along the Wongan Hills-Calingiri Road and failed to negotiate a sweeping right-hand bend which was approximately 1 km from Wongan Hills. The vehicle left the road and collided with a concrete power pole, killing two passengers who were in the rear of the vehicle and seriously injuring the front seat passenger. The appellant appears to have been uninjured.

5 The Crown case was that the appellant had driven dangerously by reason of the combination of sleep deprivation, which had led to fatigue, and the consumption of alcohol, which had resulted in a blood alcohol level of 0.1 per cent at the time of the collision.

6 The evidence revealed that the appellant had worked on Friday 7 April, commencing duties as an assistant at the Research Centre at Wongan Hills at 8 am and completing work at 4.30 pm. After work he went to an hotel where he consumed alcohol. He later met up with friends, consumed further drinks at his own home and then returned to the hotel where he remained until about midnight. Thereafter he drove to two parties, one within the town and the second about 5 km out of town. He arrived at the second party at about 3 am, and left at about 4.30 am. He drank alcohol at the second party but the precise number of drinks was unknown.

7 When the appellant left the party 5 km from Wongan Hills he had only a short distance to drive. However, at 4.46 am, some 10 minutes or so after having left the party, and when about 4 to 4.5 km along the

Wongan Hills-Calingiri Road, he failed to take a sweeping right-hand bend and drove straight ahead into a power pole. This resulted in the cutting of power to the Wongan Hills area, thus pinpointing the time of the collision.

8 Although the appellant did not admit that he was the driver of the motor vehicle, the front seat passenger testified that he was the driver and there seems to be no doubt about that fact. Examination of the roadway failed to reveal any markings on the road or the gravel to suggest deviation by reason of emergency and the Crown case was that the appellant had clearly fallen asleep at the wheel and failed to take the bend. The fact that he had been sleep deprived for approximately 21 hours and had consumed enough alcohol to have a blood alcohol reading of 0.1 per cent, was relied on as evidence of driving whilst it was dangerous to do so.

9 The trial Judge in summing up to the jury correctly pointed out that the question was whether the condition of the appellant was such that as a matter of objective fact his driving in that condition was a danger to the public. His Honour told the jury that if they reached the conclusion that the appellant had fallen asleep at the critical moment of impact, they would be required to focus on his manner of driving at the point immediately before they found he had fallen asleep or lapsed into unconsciousness. His Honour put it this way:

"If you are satisfied beyond reasonable doubt that he was awake at the wheel immediately prior to the impact but fell asleep at the critical moment when his car left the road you should focus upon that period immediately before you find he fell asleep and ask yourselves whether he knew or ought reasonably to have known at that point in time that there was a real risk of his falling asleep at the wheel if he continued to drive.

You must ask yourselves whether at that point in time his manner of driving was actually or potentially dangerous to the public because the combination of this tiredness and the alcohol he drank had, as a matter of object of fact, rendered his driving dangerous to the public."

In my view this was an entirely correct approach to the question to be tried and an accurate charge to the jury in every respect.

10 The jury convicted the appellant of all counts on the indictment and he was sentenced to 2-1/2 years' imprisonment on each count of dangerous driving causing death, to be served concurrently, and 12 months' imprisonment on the count of dangerous driving causing grievous bodily harm, also to be served concurrently. An order for eligibility for parole was made. The appellant's motor vehicle driver's licence was disqualified for a period of 3-1/2 years.

11 The appellant appeals against conviction and seeks leave to appeal against the sentence imposed.

12 There are five grounds of appeal against conviction. The first two grounds are intended to contend that the verdict of the jury was unsafe and satisfactory for various reasons. As framed, the grounds are far from satisfactory, being formulated in the following way:

"1. The verdict of the jury that the accused did not honestly and reasonably believe he was alert and sober enough to drive was unsafe because it was not supported by the evidence of a witness who said the accused was alert and appeared sober before driving a short distance over a short period of time.

2. The verdict of the jury that the accused went to sleep while driving or that the accused's verdict was adversely so affected by lack of sleep and alcohol so as to cause the deaths and grievous bodily harm was unsafe because that conclusion was only one of a number of reasonably open explanations for the accident ..."

13 It is entirely wrong to suggest in this case that the jury reached the verdicts as contended in these grounds. The jury reached verdicts of guilty in relation to each count on the indictment and no more. They were not required to give reasons and of course did not do so.

14 However, I shall treat the two grounds of appeal as contending that the verdicts of the jury should be set aside on the ground that they were unreasonable and/or could not be supported, having regard to the evidence (Criminal Code, s 689(1)).

15 The basis upon which this Court should determine whether the convictions of the appellant should be allowed to stand is clearly set out in M v The Queen [1994] HCA 63; (1994) 181 CLR 487 and Jones v The Queen (1997) 191 CLR 439. In M v The Queen at 493, Mason CJ, Deane, Dawson and Toohey JJ said:

"Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations."

16 The facts of this case established that the combination of fatigue and alcohol was a potent recipe for the disaster that occurred when the appellant's vehicle left the road and collided with the concrete pole. There was evidence that the appellant had a blood alcohol reading of 0.1 per cent at the time of the collision with the pole and Professor David Joyce, a clinical pharmacologist and consultant physician in internal medicine, who was (inter alia) Associate Professor in the Department of Pharmacology and Medicine at the University of Western Australia, testified as to the likely effect of alcohol consumption on the appellant. He said:

"In terms of someone having a blood alcohol level of .1, are you able to say how that person would be feeling or their impairment of judgment or coordination and so on, or does vary from person to person, as to their awareness of that? --- It does vary; that's common knowledge. There are people who are prepared to declare that they are perfectly competent to drive with high blood alcohols and that they are sure of it, despite all the evidence, and they are all wrong. Nobody can drive competently with a blood alcohol of .1, even a hardened drinker, whereas on the other hand there are a lot of people who are aware at very low blood alcohols that there is something slightly wrong with their ability to pay attention and they will spontaneously not drive at concentrations even lower than .05, so people have very different perceptions of driving impairment with alcohol.

You said that no-one, not even a hardened drinker, could drive competently at .1? --- Everyone is impaired at .1 or above.

The kinds of impairment that you talk about, are they the things that you discussed earlier on in your evidence in terms of judgment, reaction time, confidence, those kinds of things? --- Yes. The whole think can be summarised by saying that there is an increased accident risk in people with blood alcohol concentrations of .1, regardless of driving experience.

The factors, just so we are clear, that increase that risk - sorry, the increased risk is due to an impairment of what particular skills? --- It's impairment of judgment, false confidence, delayed reaction time, impaired ability to track things visually, sleepiness, inattention and in some instances the aggression that alcohol can induce."

17 There was evidence from Professor Laurence Hartley about the likely effect of fatigue or sleep deprivation. Professor Hartley is a Professor of Psychology at Murdoch University with a PhD from University College in London in the area of electrical activity as it affects the brain. He holds the position of Chair of the Road Safety Council's Driver Fatigue Task Force and has extensive experience in accident analysis prevention and transportation research. He was employed with the Medical Research Council in Cambridge investigating the effects of sleep deprivation or sleep restriction on people's performance or behaviour. He was certainly qualified to express the following opinion which was relevant to the facts of this case:

"... We just go back to the, perhaps the definition of fatigue again, your Honour, which is a progressive loss of alertness finally ending in sleep. Then what happens when we get to that point of the dimension when sleep occurs is that people can have very brief episodes of sleep, which we term micro-sleeps, which people are usually unaware of them, I think. If they are aware of falling asleep, then we wouldn't call it a micro-sleep, we would say they had fallen asleep.

How long is a micro-sleep so we have some idea? --- Well, a - it can be tens of seconds. We will need to be asleep for about 2 minutes for most of us to realise when we wake up that we have been asleep, so you can have brief periods of sleep of which you are quite often unaware. This would be, if you like, towards the end, really towards the end of the dimension of sleepiness; before long we will be ending up by being soundly asleep. Sleepiness is not a matter of willpower, sleep is a biological necessity and if you don't get it nature will take control and will switch you into sleep anyway; so people can have brief periods of sleep they are unaware of."

"... it's very rare to have a single vehicle crash during the day and they show what we often term, I suppose, as the circadian profile of loss of alertness that I mentioned so that they - single vehicle crashes begin to rise around midnight and peak at around 4.00, 5.00 in the morning or so and then fall, begin to drop, reaching - going back to normal, a small number of single vehicle crashes about 9 o'clock in the morning.

So those pre-dawn hours? --- These are crashes for which obviously there is only one driver who is responsible. They're not related to how dark it is because they don't start to rise - single vehicle crashes don't start to rise till after midnight, past when darkness fell, and they peak at the point when we know that the person's alertness and sleepiness is greatest."

18 It is unnecessary to quote anything further from the very detailed evidence given by Professor Hartley. That evidence, in combination with the evidence given by Professor Joyce, provided compelling evidence upon which the jury could conclude beyond reasonable doubt that the appellant knew or ought reasonably to have known that there was a real risk that he would fall asleep while lapsing in concentration, to the point of losing control of his vehicle as he drove from the second party he had attended back to Wongan Hills.

19 The case was a circumstantial evidence case because nobody was able to say exactly what had occurred and led the appellant's vehicle to leave the road. Neither the appellant nor his front seat passenger had any recollection of the events immediately prior to the vehicle leaving the roadway. The jury was thus in a situation where it had to be satisfied that any competing inferences in the form of reasonable hypotheses consistent with innocence were excluded beyond reasonable doubt before the appellant could be convicted.

20 In my view the jury was entitled to be satisfied beyond reasonable doubt that there was no reasonable hypothesis open consistent with innocence. In this respect I would refer to what I said in Ladd v Debnam, unreported; CCA SCt of WA; Library No 980672; 23 November 1998 (at 10) where I adopted the formulation of Malcolm CJ in Parker v The Queen, unreported; CCA SCt of WA; Library No 960740; 20 December 1996 (at 20) as follows:

"The meaning of the expression 'reasonable hypothesis' was considered in Bushell v Repatriation Commission [1992] HCA 47; (1992) 175 CLR 408 at 413-414 per Mason CJ, Deane and McHugh JJ. To be 'reasonable' an hypothesis must possess some degree of acceptability or credibility. An hypothesis cannot be reasonable if it is obviously fanciful, impossible, incredible or not tenable or too remote or too tenuous: East Repatriation Commission [1987] FCA 242; (1987) 16 FCR 517 at 532; cf Thomas v The Queen [1960] HCA 2; (1960) 102 CLR 584. In Repatriation Commission v Webb (1987) 76 ALR 131 at 135 Beaumont J distinguished between a theory rationally based, on the one hand, and an opinion or view that was irrational, absurd or ridiculous on the other. This is probably what was meant when it was said in Plomp and Thomas that the inference of guilt must be the only 'rational inference' open on the evidence. In this context it needs to be borne in mind that a 'reasonable' hypothesis is not only one that is logically possible but also reasonable, not fanciful, whimsical or chimerical."

"Of course, for an inference to be reasonable it must rest upon something more than mere conjecture. The bare possibility of the inference should not prevent a jury from finding an accused guilty if the inference of guilt is the only reasonable inference: Barca v The Queen [1975] HCA 42; (1975) 133 CLR 82 at 104-105 per Bibbs, Stephen and Mason JJ; Parker (supra) per Malcolm CJ at 21."

22 Counsel for the appellant contended at the hearing of the appeal that an examination of the whole of the evidence showed that the jury should have entertained a reasonable doubt as to guilt. Counsel relied particularly upon the fact that nobody who had seen the appellant immediately prior to his embarking upon the journey thought him affected by alcohol or tiredness; the appellant had told a person at the party that his passenger had drunk too much when the passenger indicated an intention to drive the motor vehicle; the opinion of a witness was that the appellant was in a reasonable condition to drive; and generally speaking the evidence established that the appellant gave every appearance of alertness and sobriety when he left the party to begin his journey.

23 However, this evidence needs to be viewed against the background of Professor Joyce's testimony to the following effect:

"Doctor, if somebody say has a blood alcohol content of .1 and looks fine does that necessarily mean that they feel fine? --- They may feel pretty good as well. The question is whether skills that are essential to driving are overtly manifest in such a way that you can just pick that they're not by looking at someone, but most people with a blood alcohol of .1 would look pretty normal. If you got close to them then you would generally be aware that they had had a few drinks. Might be able to smell a bit of alcohol. Might be able to pick some changes in their behaviour or their confidence or just something about them that you know isn't the way that they normally are, but you wouldn't necessarily be able to pick those things. The kind of information we gather about a person by talking to them socially doesn't tell us very much about the skills that they have for driving and it doesn't tell us whether or not they have got preserved ability to make the right judgments in driving, to control the vehicle properly, to react in time, to stay awake and so on. To find those things out, you have to put them in situations where those faculties are called on so you can actually see whether they're fixed or not, because you can't judge someone's coordination just by talking to them. Typically people with a blood alcohol of .1 will mostly look pretty much all right. The people who are accustomed to alcohol may look stone-cold sober, but all of them will have some impairment of driving skills."

24 In essence, it was for the jury to weigh up the evidence both of witnesses who observed the appellant before he set out on his journey and the expert witnesses who were called by the prosecution. This was, in every way, a typical jury case. The members of the jury were called upon to decide whether they were satisfied beyond reasonable doubt that the only inference open on the evidence was the adverse inference of guilt of the accused. On the face of it, there was ample evidence to justify the jury reaching the verdicts it did. In short, everything pointed to the fatal accident being caused by the appellant driving his vehicle whilst adversely affected by alcohol and fatigue and in circumstances where he ought reasonably to have known that he was a danger to the public in driving on a public roadway as he did.

25 Although alternative hypotheses were valiantly argued before the Court by counsel for the appellant, these were clearly capable of being discounted beyond reasonable doubt by the jury. These hypotheses included the proposition that passengers had distracted the appellant; that passengers had interfered with the driving of the appellant; that the appellant was distracted by an animal on the road; and/or that the appellant was distracted by lights.

26 There was no evidence at all that passengers had distracted the appellant or interfered with his driving. No witness spoke of any skylarking in the vehicle, noise from it or anything that could have suggested this. There was no evidence of any animal on the roadway, nor any evidence of skid marks to suggest that an attempt had been made to evade an animal. There was no evidence of lights distracting the appellant, and indeed there was positive evidence from a witness who had been on the roadway shortly prior to the accident, that although she was in a vehicle which had been spotlighting on the road, there were no other vehicles visible on the roadway. The question was answered by her directly in the following way:

"Did you see any cars coming towards you? --- No. There was no other vehicles on the road.

Mm? --- There was no other vehicles on the road.

What about when you first saw the object, were there any vehicles on the road? --- No, there wasn't.

Any behind you? --- No.

Did you look? --- Well, there was no headlights. I couldn't be certain about behind us when we were going towards town. They would have had to have turned off though, I suppose, if there was vehicles travelling behind us."

27 What is fatal to the submissions of counsel for the appellant is that there was simply no foundation in fact for the jury to inevitably fail to be satisfied beyond reasonable doubt that there was a reasonable hypothesis open consistent with the innocence of the appellant. The matters relied upon by counsel for the appellant were entirely conjectural and one can understand why the jury was satisfied beyond reasonable doubt that the only reasonable inference that could be drawn on the evidence was that the appellant had fallen asleep at the wheel of his vehicle whilst affected by a combination of alcohol and/or fatigue, thus causing the vehicle to leave the roadway. As directed by the learned trial Judge, the jury was entitled to be satisfied beyond reasonable doubt that the appellant knew or ought reasonably to have known immediately before falling asleep that there was a real risk that he would do so if he continued to drive.

28 This, in my view, disposes of the first and second grounds of appeal which contend that the verdict of the jury was unsafe and/or unsatisfactory.

29 The third ground of appeal contends that the learned trial Judge erred in law in not instructing the jury that they had to be satisfied beyond reasonable doubt that the dangerous driving was a willed act. This ground cannot be made out. The learned trial Judge actually gave a very clear direction to this effect. His Honour said:

"Before examining the circumstances which might, in your view, have a bearing on the question of whether the driver's manner of driving was dangerous to the public it is necessary to define the precise time or moment in the manner of driving upon which you the jury should focus. If you come to the conclusion that the driver had fallen asleep at the time of the impact, causing death and grievous bodily harm, you would have to find that his conduct while he was asleep was involuntary and could not amount to driving in a dangerous manner.

The reason for this is that the law requires any offence to be the product of a willed act. When a person lapses into unconsciousness either through sleep or through some other cause he loses the capacity to perform a willed or deliberate act. In those circumstances his conduct cannot attract criminal responsibility.

If in this case you conclude the driver had fallen asleep at the critical moment of impact you should focus on his manner of driving at the point immediately before you find he fell asleep or lapsed into unconsciousness."

30 The fourth ground of appeal contends that the learned trial Judge erred in law in admitting expert evidence of the effect of fatigue and driving in the circumstances of the case, being (inter alia) a short journey over a short distance. This ground was not pressed at the hearing of the appeal, but it should be said that Professor Hartley was entirely qualified to express the views he did. His evidence related to a subject of special study or knowledge and came from a body of recognised scientific theory (see generally "Cross on Evidence", 6th Aust Ed, (J D Heydon) at par 29055).

31 The fifth ground of appeal contends that the learned trial Judge erred in law in his redirection to the jury in failing to mention all relevant factors to be taken into account by the jury when assessing the manner of driving of the appellant. What is complained about is that the learned trial Judge restricted the factors to which he made reference to three, failing to mention others. The ground is formulated in this way.

"5. [The learned trial Judge] Was wrong in law when redirecting the jury in not mentioning all the relevant factors to be taken into account when assessing the driving and by restricting the factors:

(i) The fact the accused had worked all day.

(ii) He was without sleep for 22 hours.

(iii) He had a blood alcohol level of .1%.

And failing to mention, inter alia,

(a) The journey was only one of 5 kilometres.

(b) The accused had company in the car.

(c) Crown witnesses described the accused as appearing alert and sober immediately prior to driving.

(d) The accused's evidence that he felt sober and alert.

(e) The journey was a four to five minute journey at the speed limit.

(f) The accused was travelling on about the speed limit (80 kph) when it left the road at 82 kph - 85 kph.

(g) The evidence that all occupants of the car were laughing and talking as they walked to the car immediately prior to leaving, thereby creating a danger that once the jurors found the lack of sleep and blood alcohol content they believed a finding of dangerous driving was obligatory."

32 The way in which the trial of the appellant unfolded was that the learned trial Judge summed up to the jury on 21 October 2002, sending the jury out to consider its verdict at 12.46 pm. Only a matter of a few minutes before concluding his charge to the jury, the learned trial Judge had set out very clearly the basis of the defence case. His Honour put it this way:

"The defence says that the accused was not drunk at the time he left the party. The defence says there is no evidence that he was unduly tired at the time he left the party. The defence says that he was alert, able to converse with his friends and was concerned about one of his companion wanting to drive home the distance of 22 kilometres.

The defence emphasises that the journey between the Merritt's place and the point of impact must necessarily have been a brief one. We know that the distance from the turn-off at the Merritt's house to the point where the impact occurred is approximately 4 kilometres. That journey, the defence says, would hardly have taken 10 to 20 minutes, which I believe was the time estimated by the crown witnesses.

The defence says that the accused at all times honestly and reasonably believed he was fit to drive that motor vehicle and that he was neither too drunk nor too tired to do so.

Finally, the defence emphasises by way of argument that the evidence of the tyre marks and the other findings at the scene, coupled with the expert evidence, is equally consistent with probabilities other than the accused lapsing into sleep or micro-sleep. Those other probabilities have been put forward by Mr Giudice and dealt with by the crown prosecutor. I do not propose to canvass them."

33 At 3.45 pm the jury returned to the Court with a request that the learned trial Judge clarify a number of matters. The questions posed by the jury were:

"Please clarify: (1) component of the decision to be made; (2) we knew the judge mentioned the driver's intent to drive. Do we make our decision based on what we believe the accused thought or what a reasonable person thinks?; (3) elements involved in defining dangerous driving; (4) when viewing this situation from a reasonable person's perspective do we consider age, lifestyle, etcetera?"

34 When the learned trial Judge came to answer the third question he said:

"The third question involves a re-definition of dangerous driving. I'm not quite sure, Madam Foreman, what detail you want me to go into. Does the jury want me to explain the entire concept of what is meant by dangerous driving, as I did in my charge? That relates, of course, to the second element that you have to consider.

THE FOREMAN: Yes, we would."

The learned trial Judge then repeated the directions which he had given in relation to the elements of the offence of dangerous driving and in the course of so doing, said:

"I outlined the factors that you should take into account in considering this question and I need not repeat those factors now. What I will repeat are my concluding remarks which might help you. I'm repeating now exactly what I told you. Factors you will have to take into account include; the nature of the work he had done on the day before the accident, the number of hours he had been awake and the alcohol he had drunk.

With those factors in mind you must ask yourselves whether the crown has proved that he must have been so tired or incapable of concentrating on his driving that in the circumstances his driving constituted a danger to the public."

35 The criticism which counsel for the appellant makes of this direction is that it failed to incorporate the several matters referred to in the ground of appeal. However, it is to be stressed that the question did not ask anything more than the elements involved in the offence of dangerous driving. The jury did not ask for the evidence to be recounted. Further, the trial Judge clearly told the jury that there were a number of factors to be taken into account which included the three he mentioned. By no means did the learned trial Judge suggest that these were the only factors to be taken into account. Further, his Honour did not relate any evidence to those factors but left them as the relevant factors to be considered by reference to the evidence which had been led.

36 Bearing in mind that the learned trial Judge had only shortly before the jury retired amply set out the defence case, I can find no fault in the way in which his Honour redirected the jury. In Hoy & Ors v The Queen [2002] WASCA 275 I endeavoured to collate a number of the cases dealing with what is and what is not required of a trial Judge in summing up to the jury. I made particular reference to the following passage in R v Ali (1982) 6 A Crim R 161 where Street CJ (at 164 - 165) said:

"... it is to be borne in mind that a trial judge, when summing up, does not bear the responsibility of analysing all of the conflicts and inconsistencies in the evidence adduced during the course of the trial. The nature of his duty has already been canvassed in a number of authorities, and there is no occasion to discuss the principles in this regard. The trial judge will normally direct his attention in what has become a conventional sequence to matters of law and then any particular matters of fact, assisting the jury by such discussion as is necessary to enable the jury to relate the relevant principles of law to the matters of fact falling for their determination."

37 Numerous other cases are referred to in my judgment in Hoy & Ors v The Queen, all of which make it abundantly clear that it is no misdirection not to tell the jury everything which might have been told them. Every summing up is to be regarded in the light of the conduct of the trial and the questions which had been raised by counsel for the prosecution and for the defence respectively. In the present case, the arguments raised by both counsel were amply put before the jury and what was at issue in the redirection of the jury was simply the question of the elements of the offence of dangerous driving. In my view nothing more was required to the trial Judge than that which is contained in his direction to the jury on the topic.

38 In the end, the submission of counsel for the appellant really boiled down to a contention that because nobody could say exactly what had happened when the appellant's vehicle left the road, it was impossible for the jury to be satisfied beyond reasonable doubt of guilt. For reasons which I have already advanced I cannot accept this proposition. On all of the evidence the jury was entitled to be satisfied beyond reasonable doubt that the only reasonable hypothesis open on the evidence was one consistent with the guilt of the appellant. That is to say, on the evidence the jury was entitled to be satisfied beyond reasonable doubt that through a combination of alcohol and fatigue the appellant knew or ought to have known that it was dangerous to the public for him to drive on a public road. For these reasons I am of the view that the appeal against conviction must be dismissed.

The application for leave to appeal against sentence

39 The application for leave to appeal against sentence proceeded on the basis that the learned trial Judge had erred in law in failing to impose a suspended period of imprisonment rather than a sentence of imprisonment to be served immediately. The grounds of appeal as ultimately argued were that the learned trial Judge had erred in law in:

"2. Not accepting that a suspended period of imprisonment would satisfy the need for general deterrence and all other sentencing principles relevant to this case.

3. Deciding that the assumption of risk on the part of the passengers in the vehicle by travelling with the accused driver when they knew he had been drinking and had not slept for 22 hours did not diminish the moral culpability of the accused.

4. Placing no or little weight on the fact that the deceased passengers were not wearing seatbelts, and thereby not finding that the moral culpability of the accused was less than otherwise would have been the case.

5. Not finding that the accused made an honest mistake about his capacity to drive.

6. Not finding the accused was an honest witness who had not denied he was driving.

7. Finding that dangerous driving was of two categories.

8. Finding the accused's driving was in the more serious category."

40 A number of these grounds of appeal can be dismissed immediately. The third ground, which suggests that by reason of assumption of risk on the part of the passengers in the vehicle the appellant should have been dealt with more leniently, is misconceived. The driver of a motor vehicle owes a duty to drive in a manner which is safe for all road users, including his passengers. It is no mitigating circumstance from the point of view of penalty to suggest that the deceased or injured passengers assumed the risk of death or injury by travelling with the appellant at a time when they knew he had been drinking and had not slept for 22 hours. Likewise, the particulars contained within ground 4 have no substance. The fact that deceased passengers were not wearing seatbelts cannot conceivably lessen the moral culpability of the appellant. Section 59(2)(b) of the Road Traffic Act 1974 provides that for the purposes of the offence of dangerous driving causing death or grievous bodily harm, it is immaterial that death or grievous bodily harm might have been avoided by proper precaution on the part of a person other than the person charged. This provision relates to the substantive offence of dangerous driving causing death or grievous bodily harm, but is an indication that the gravity of the offence is not lessened by the failure on the part of a passenger in the vehicle to wear a seatbelt. Further, the appellant had a legal obligation to ensure that his rear seat passengers were wearing seatbelts: Road Traffic Code 2000, r 233.

41 Ground 5 complains that the learned trial Judge erred in law in failing to find that the appellant had made an honest mistake about his capacity to drive. However, the learned trial Judge was under no obligation to reach that finding, particularly as the appellant had no recollection of driving from the party to Wongan Hills. He could not recall getting into the car and had no recollection beyond a conviction at the party about a friend wanting to drive home some 22 km east of Wongan Hills. The learned trial Judge made findings on the evidence. He found that the appellant had been affected by alcohol and tiredness to the point where he fell asleep immediately before his vehicle left the road. Although he did not believe the vehicle had been driven at an excessive speed, he concluded that the vehicle left the roadway at a speed between 81 - 85 kph before colliding with a power pole at a speed of approximately 60 - 70 kph. His Honour concluded that everything pointed towards the appellant having fallen asleep at the critical moment, particularly as he had not slept for 21 hours and had been drinking over an extended period of 10 - 11 hours. His Honour concluded:

"The accident occurred at approximately 4.45 in the morning, which, according to the expert witness called by the crown, is the time at which an ordinary person is most likely to fall asleep.

The combination of the number of hours you had been awake, the time of the accident in the pre-dawn hours and the alcohol you had consumed must, in my view, have lead you to fall asleep or lose concentration to such an extent as to be oblivious to the fact that your vehicle was leaving the bitumen road surface.

...

By driving after you knew you had been awake for approximately 21 hours and after drinking steadily, although not heavily, since 5 pm the previous day, I am satisfied that your level of culpability does lie at the higher end of the scale."

42 The learned trial Judge had made it clear to the jury that if it had not been proven beyond reasonable doubt that the accused did not honestly and reasonably believe that it was safe for him to drive, he would not be criminally responsible for the manner of driving on the night in question. He rightly pointed out that the burden lay on the Crown to satisfy the jury in that respect, pointing out that it might discharge the onus by proving either that the appellant did not honestly believe it was safe for him to drive or that the belief was, in all the circumstances, an unreasonable one. His Honour pointed out that the honesty of the appellant's belief was a subjective issue and it was for the jury to decide whether the appellant's expressed belief that he was neither tired nor drunk was subjectively honest.

43 I see no basis upon which the learned trial Judge was obliged to find that the appellant had made an honest mistake about his capacity to drive and I find no substance in this ground of appeal. Likewise, the sixth ground of appeal which asserts that the learned trial Judge erred in failing to find that the appellant was an honest witness, has no substance. It was irrelevant to the sentencing exercise.

44 The final two grounds contend that the learned trial Judge erred in finding that dangerous driving was of two categories and that the appellant's driving was in the more serious category. These grounds fly in the face of authority and I need only refer to R v Guilfoyle (1973) 2 All ER 844 at 845 and Ainsworth v "D" (A Child) (1992) 7 WAR 102 at 116, which establish that cases of dangerous driving causing death fall into broad categories, the first being those in which the accident has arisen through momentary inattention or misjudgement and the second, being 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. I made reference to these cases and to the categories of dangerous driving causing death in Wood v The Queen [2002] WASCA 95 at [104] - [106]. There is no doubt two categories of dangerous driving causing death exist and in this case it was clearly open for the learned trial Judge to conclude that the driver of the appellant fell within the second category, namely the more serious category. In Ainsworth v "D" (supra), Malcolm CJ (at 116) expressed the view that there might be a subdivision on the second or more serious category of offences provided by cases in which an accident had been caused or contributed to by the accused's consumption of alcohol or drugs. This was such a case.

45 The learned trial Judge's sentencing remarks reveal that his Honour regarded the appellant's driving as clearly in the more serious category of dangerous driving causing death. His Honour said:

"By driving in the condition you were in, you showed a selfish disregard for the safety of your passengers and other road users. You knew or ought to have known that you should never have driven in the condition you were in. I wonder whether you gave the matter any serious thought at all.

It is possible that you simply assumed you were fit to drive. Whatever the situation might have been, you were clearly grossly irresponsible in reaching the decision you did. Your degree of irresponsibility is highlighted by the fact that only 3 days earlier you had been disqualified from holding or obtaining a motor driver's licence for a period of 9 months. I mention this not because it can play any part in the sentencing process but simply because it illustrates your degree of irresponsibility and your apparent readiness to flout the law regardless of the potential consequences."

46 Prior to sentencing the appellant the learned trial Judge made reference to the tragedy of the incident in which two young men had been killed and one seriously injured. His Honour pointed out that the men lived in a small community and the sense "of waste and sorrow felt by their families, friends and the local community needs no further expression in these reasons for sentence".

47 In deciding to impose a sentence of imprisonment to be served immediately the learned trial Judge made these observations:

"I intend to follow the law as I am required to do and to impose a sentence which, in the circumstances of this case, meets the need for general deterrence. Although you are still a very young man and your antecedents are generally very favourable, your degree of culpability falls into the more serious category in which selfish disregard was shown for the safety of other road users. Fatigue and alcohol, either individually or in combination, are known to be major contributors to road fatalities.

The whole community knows this, the message is constantly being sent out and reinforced. You knew it. You knew the dangers involved. You could have stayed at the house where the party had been held, that would have been the sensible thing to do, but you chose to drive knowing, as you must have done, that you had been drinking over an extended period and that you had not slept for 21 hours. With that knowledge you ought to have been aware of the very real risk involved in driving a motor vehicle.

This offence is so serious that only imprisonment can be justified. I have been referred to the recent decision of the Court of Criminal Appeal in Wood v R where a 24-year-old female with favourable antecedents was gaoled and the sentence upheld on appeal in circumstances where the offender had remained awake for a very long time and fell asleep at the wheel of a car and killed a person on a road verge. She had not consumed any alcohol.

Although your age and antecedents require serious consideration being given to the question of suspending the immediate effect of any sentence of imprisonment imposed I do not believe that option is open. In addressing that issue I must consider once again all the factors both personal to you and relevant to the offence which lead me to conclude that imprisonment is the only appropriate disposition."

48 It will be seen that the learned trial Judge gave careful consideration to all relevant matters. That is, he considered the seriousness of the offence and the need for deterrence. He balanced against this the age and antecedents of the offender. He adopted the two-step process of sentencing required by Dinsdale v R [2000] HCA 54; (2000) 202 CLR 321 (see particularly Kirby J at [85] - [87] and clearly gave every consideration to the question whether a suspended sentence of imprisonment was appropriate. In this respect his Honour's ultimate decision on the appropriate disposition of the matter was very much one of discretion and the principles explained in Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 at 671 - 672 apply:

"The principles according to which an appellate court may interfere with such a discretionary judgment by a sentencing judge are well established. In their application to a Crown appeal against sentence they were summarised in R v Allpass and R v Clarke. Of particular importance in the present case is the principle that a court of criminal appeal may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing judge exercised his or her discretion. This is basic. The discretion which the law commits to sentencing judges is of vital importance in the administration of our system of criminal justice."

49 In Wood v R (supra) this Court recently dealt with a case of dangerous driving causing death where a vehicle had run off the road by reason of fatigue on the part of the driver but in circumstances where there was no consumption of alcohol. A sentence of 18 months' imprisonment which had been imposed in the District Court was upheld. In that case I made reference to the decision in R v Jurisic [1998] NSWSC 423; (1998) 101 A Crim R 259, pointing out that in other jurisdictions the offence which equates to dangerous driving causing death is one in which a sentence of immediate imprisonment will ordinarily be imposed and a term of suspended imprisonment will generally be inappropriate (see particularly [116]. I made reference also to other cases in this Court which have clearly spelled out that in cases of dangerous driving causing death there is a need for deterrent sentences to mark the seriousness of the offence. This has been the position in Western Australia for at least 10 years, following the observations of Malcolm CJ in R v Stebbings (1990) 4 WAR 538 at 540, where his Honour pointed out that loss of life and personal injury caused by dangerous or negligent driving on the roads has been rightly described as one of the most serious social problems facing the Australian community. His Honour said:

" '... In these circumstances it is necessary to impose a sentence which will hopefully act as a deterrent to others and mark the seriousness with which parliament and the community regard the kind of driving behaviour exhibited by the respondent in this case. The tragedy and misery caused by the deaths and injuries to innocent road users is compounded in a case such as this, where the deaths and injuries were quite unnecessary and could so easily have been avoided.' "

50 In the circumstances of this case I consider a sentence of imprisonment to be served immediately to have been inevitable. Two young men were killed and one seriously injured. The fatal accident was caused by a combination of fatigue and alcohol which, as the learned trial Judge found, is known in the community to be a major contributor to road fatalities. The message needed to be given that when young people, whilst affected by alcohol and fatigue, drive dangerously causing death or grievous bodily harm, a deterrent sentence of imprisonment is inevitable. In my view the length of the sentence cannot be complained about, nor was it by counsel for the appellant. I would therefore grant leave to appeal against sentence but dismiss the appeal.