MASTROLEMBO -v- THE STATE OF WESTERN AUSTRALIA [2026] WASCA 27 (25 February 2026)

1. Under s 54(2) of the RTA:

If a vehicle driven by a person (the driver) is involved in an incident occasioning bodily harm to another person (a victim), the driver must ensure that each victim receives all the assistance, including medical aid, that is necessary and practicable in the circumstances.

1. Section 54(3) relevantly provides that a person who contravenes s 54(2) of the RTA commits a crime. The maximum penalty for that offence is 20 years' imprisonment where the incident occasioned death. By comparison, the maximum penalty is 14 years' imprisonment if the incident occasioned grievous bodily harm but not death, and 10 years' imprisonment in other cases. Section 54(3) also provides for a mandatory disqualification from holding or obtaining a driver's licence for a period of not less than 2 years where the incident occasioned death or grievous bodily harm. There is no maximum disqualification period.
2. Section 54(5) of the RTA provides that it is a defence to a charge under s 54(3) for the accused to prove he was not aware of the occurrence of the incident.
3. Section 106A of the RTA provides that the minimum driver's licence disqualification is irreducible in mitigation, irrespective of any sentence the court imposes on the offender. Under s 23A(1) of the Road Traffic (Authorisation to Drive) Act 2008 (WA), the disqualification period does not elapse while the offender is in custody serving a sentence of imprisonment.

1. The trial judge made the following unchallenged findings as to the circumstances of the appellant's offending.[1]
2. At around 4.20 am on Sunday, 9 October 2022, the appellant left his home in Banksia Grove to go to work. He was driving his work vehicle, a Mitsubishi ASX.
3. At around 4.32 am that morning, the appellant's vehicle struck Mr Kirby's electric bicycle, which Mr Kirby was riding on the Mitchell Freeway. The trial judge stated that Mr Kirby was riding in a southerly direction 'along the left side of the outside lane of the freeway'[2] at a speed of around 29 km/h at the time he was struck. It is common ground between the parties that Mr Kirby was riding close to the kerb on the inside of the emergency lane on the left-hand side of the carriageway. The emergency lane was being used as a traffic lane due to roadworks that reduced the southbound carriageway of the freeway to two lanes. Nothing in this appeal turns on the precise position of Mr Kirby on the carriageway at the time of the collision.
4. Although the trial judge did not make a finding as to how Mr Kirby got onto the freeway, her Honour was satisfied he did not come out of the bushes at the time of, or immediately prior to, being struck. The appellant's vehicle struck Mr Kirby from behind. Mr Kirby hit the appellant's windscreen and was propelled or carried forward, suffering fatal injuries. The collision caused extensive damage to the Mitsubishi ASX.
5. The appellant knew or believed that he had hit a person at the time of, or shortly after, the collision. The trial judge rejected the appellant's evidence that he believed that he had struck a kangaroo. The trial judge found that the appellant was aware that the collision did not involve a kangaroo or any other animal.
6. The appellant then continued on to his work, where he made a false report that he had struck a kangaroo. Between 8.09 am and 8.27 am the following day, after fixing a cord to the bicycle rack embedded in the bumper of the Mitsubishi ASX, to stop the bumper from consequently dragging on the road, the appellant submitted an insurance claim form in which he stated that the vehicle had struck a kangaroo. The appellant deliberately made a false report to his employer and also deliberately made false statements on the insurance claim form which he submitted. The appellant told these lies to distance himself from having been involved in a collision on the Mitchell Freeway.

1. The trial judge noted victim impact statements from Mr Kirby's daughters and brother which described the impact of his tragic death upon them. Observing that the appellant was not being sentenced for causing Mr Kirby's death, the trial judge found that the family was not only impacted by his death, but the knowledge that he 'was left to die on the road by you'.[3]

1. The trial judge made the following unchallenged findings about the appellant's personal circumstances.[4]
2. The appellant was 44 years old at the time of offending and 47 years old at the time of sentencing. He was born in Perth and grew up in a loving family. The appellant's parents and sister remained supportive of him. At the time of the offending, the appellant was married and a stepfather to two girls. The appellant and his wife were together for about eight years. Their relationship ended in 2024.
3. After completing high school, the appellant completed a degree in marketing and business management at TAFE. He worked in retail while studying and, over the years, forged a very successful career in retail management. At the time of the offending, the appellant had been employed by Farmer Jack's as a store manager for around 18 months. He remained employed there at the time of trial.
4. The appellant does not have any substance abuse issues. While he takes medication for high blood pressure, his physical health is otherwise unremarkable. The appellant did not suffer from any mental health issues prior to the offending. Since being charged, the appellant has been provided with supportive counselling by a psychologist, who described the appellant's symptoms as being consistent with a reactive depression in response to the circumstances which resulted from his offending.
5. The trial judge made observations about the appellant's prior criminal record which we will deal with in determining ground 1 of the appeal.
6. The trial judge received 11 character references, which indicated that he had 'many positive character traits, including a strong work ethic, kindness and a caring and supportive nature'. The appellant had contributed in many positive ways to the community and his workplaces, and had much support from family and friends.

1. The trial judge identified the following aggravating factors of the appellant's offending:[5]
   1. The appellant's failure to stop and render or call for assistance was callous in the sense that he had no regard for whether the person he hit was alive or dead. The trial judge accepted that the appellant did not stop at all and that the incident took place very quickly. While the appellant knew or believed that a person hit his windscreen, he could not have known that no amount of assistance would save Mr Kirby's life.
   2. The appellant could not have had any confidence that another driver travelling behind him would necessarily have seen Mr Kirby and stopped to render assistance, because it was still dark and the appellant did not know where Mr Kirby and his bike had landed.
   3. The circumstances of the crash were such that it was not likely another driver would come to Mr Kirby's aid.
   4. The appellant told lies about what had happened that were designed to distance himself from the incident so as to deflect any responsibility for the crash. The appellant failed to stop and lied about hitting a kangaroo because he put his own wellbeing ahead of that of the victim, fearing the consequences for himself from the crash for which he feared he might be held responsible. In identifying this aggravating factor the trial judge indicated that she was not making any finding that the appellant was actually at fault over the crash.
   5. The appellant's failure to stop and remain at the scene would have frustrated the investigation because his vehicle was no longer at the scene, which impacted on the ability of a crash investigator to reach conclusions about what happened.
2. As to mitigating factors, the trial judge was not satisfied that the appellant had shown any remorse for his offending, and noted that he did not have the mitigation of a plea of guilty. The trial judge noted the following mitigating factors:[6]
   1. The offending was out of character for the appellant in the sense that he is normally a caring and decent man.
   2. The appellant was at low risk of reoffending in this manner.
   3. The appellant's prospects of rehabilitation are good, given his work history and the support he had.
3. The trial judge described the seriousness of the appellant's offending in the following terms:

Having regard to the aggravating factors I've already identified, I am satisfied this is a very serious example of this type of offending. While Mr Kirby's life could not have been saved had you stopped, that does not lessen the seriousness of your offending.

1. Expressing the view that the seriousness of the offending was such that a sentence of immediate imprisonment was the only appropriate sentencing option, the trial judge imposed the sentence noted above.[7]

1. The material before the sentencing judge indicated that the appellant had previously been convicted of the following driving offences, for which he had received fines and licence disqualifications:

Used a mobile phone while driving; used an unlicensed vehicle

1. There was also a document titled 'List of Traffic Infringements', which recorded 26 infringement notices issued to the appellant which had either been paid or registered with the Fines Enforcement Registry. Twenty‑four of these infringement notices were issued for speeding offences, over a period of about 24 years, from 1999 to 2024.
2. The State's written sentencing submissions attached the appellant's 'criminal history and history of traffic infringements'. In contending that there were no immediately apparent mitigating factors, the written submissions observed, 'The offender has a limited, albeit relevant, criminal history' (par 41).
3. It appears that, at trial, the appellant's trial counsel had submitted to the jury that the appellant had no criminal record. The trial judge raised this issue with appellant's trial counsel in the course of his plea in mitigation in the following terms:[8]

CHRISTIAN DCJ: ... At trial, the matter came up and I made a particular decision about how to deal with it when you submitted to the jury that [the appellant] had no criminal record when there was no evidence of that, and I proceeded on the basis that he, in fact, did have no criminal record, whereas, in fact, he has a traffic record that is not insignificant. It's not, obviously, the worst traffic record imaginable, but he has a number of traffic offences.

1. The following exchange then occurred between the trial judge and the appellant's trial counsel:

DAVIES, MR: Criminal record, in my respectful submission, was meant and intended to mean a record of criminal offending, rather than just traffic record.

CHRISTIAN DCJ: Well, you see, there are two records before me. One is called 'criminal and traffic'. Are you suggesting that a conviction for using a mobile phone while driving, using an unlicensed vehicle, that those are not criminal convictions?

DAVIES, MR: I had been understood that we always drew a distinction between traffic convictions, as such, and criminal convictions, but I'll guided by your Honour.

CHRISTIAN DCJ: Well, but there's also then - so there's two. There's a document that's headed 'criminal and traffic', and then there's a list of traffic infringements. Is it not relevant to sentencing [the appellant] for a traffic-related criminal offence, whether there's any distinction to be had, that he has a number of traffic-related offences or infringements, including as recently as in 2022?

Does that not suggest a disregard for traffic laws? It doesn't make this offending worse. I'm not suggesting it does, but that doesn't go to this question of previous good character and the need for personal deterrence in terms of a traffic-type matter?

DAVIES, MR: Well, in terms of a traffic matter, yes, your Honour. Definitely, and the traffic record is before your Honour, quite so.

CHRISTIAN DCJ: Yes.

DAVIES, MR: But as far as I'm aware, there are no offences that are crimes as such, or criminal offences, to the point that it's a worthy distinction.

1. The prosecutor relied on his written submissions, but did not make any additional oral submissions in relation to the appellant's conviction and infringement history.
2. The trial judge made the following observations in relation to the issue in her Honour's sentencing remarks:[9]

During the trial it was suggested by your counsel that you have no criminal record. While it is true you have not been convicted of any sort of offence that has led to a term of imprisonment you have convictions for traffic offences including drink driving and using a mobile phone whilst driving.

While some of the convictions are from many years ago your traffic infringement history and traffic history shows a disregard for road rules stretching back to 1999. You have received 22 [sic] infringements for speeding. Your most recent infringements were in 2022. While I accept your criminal history doesn't make this offending worse, it does show a disregard for the traffic laws. And in my view that does increase the need for personal deterrence. (emphasis added)

1. The appellant submits that the effect of paying an infringement notice is provided for in s 16 of the Criminal Procedure Act 2004 (WA) and s 24(2) of the Fines, Penalties and Infringement Notices Enforcement Act 1994 (WA) (FPINE Act). Under those provisions, payment of an infringement notice is not to be treated as an admission of liability and is not a conviction of the offence.
2. The appellant submits that it follows that payment of an infringement notice cannot be used in sentencing proceedings to determine the offender's antecedents and the need for personal deterrence. The appellant submits that the trial judge erred by having regard to unproven allegations and facts in assessing the need for personal deterrence, effectively treating the infringement notices as traffic convictions proven beyond a reasonable doubt in a court.

1. The respondent, while accepting that traffic infringement notices are not convictions, contends that those infringements show underlying conduct which increased the need for personal deterrence and was properly taken into account for that purpose. The respondent submits that the appellant's trial counsel had a copy of the infringement list and did not dispute that record. The respondent contends that trial counsel implicitly accepted the record in submitting that:[10]

Traffic offending, tickets and infringements, including an alcohol-related driving offence in his past, these are, of course, all to be taken into account. But generally speaking, in terms of his conduct in the community, apart from his traffic history, we have a creditable man and, in our respectful submission, that credit should bear perhaps extraordinary weight in this sentencing outcome. (emphasis added)

1. Further, in written submissions on sentence the appellant's trial counsel wrote that the appellant had 'no prior history of criminal offending, although he does have a history of traffic offences speeding tickets and the like' (par 8). Those written submissions were dated 29 November 2024, four days after the State had filed its submissions on sentence which attached the appellant's criminal history and history of traffic infringements.
2. The respondent therefore submits that it was open to the trial judge to rely on the matters set out in the appellant's traffic history as an indication of his previous conduct, which her Honour correctly found to demonstrate a disregard for traffic laws. The respondent submits that having regard to the conduct underlying undisputed traffic infringements in assessing the need for personal deterrence is analogous to the uncontroversial approach of taking into account uncharged acts in assessing the need for personal deterrence, in that a conviction is not required for the conduct to be taken into account.

1. In our view, this ground of appeal is established.
2. Part 2 of the Criminal Procedure Act provides for the issue of infringement notices for prescribed offences. Under s 16 of that Act:

(1) If the modified penalty stated in an infringement notice is paid within the period in section 9(1)(f) or any extension of it and the notice is not withdrawn, the bringing of proceedings and the imposition of sentences are prevented to the same extent as they would be if the alleged offender had been convicted by a court of, and punished for, the alleged offence.

(2) Payment of a modified penalty is not to be regarded as an admission for the purposes of any proceedings, whether civil or criminal.

1. Part 3 of the FPINE Act provides for the enforcement of infringement notices. Where the modified penalty is not paid, the issuing authority may issue a final demand (s 14). If the modified penalty and enforcement fees are not paid after the issue of a final demand and the recipient has not elected to have the matter dealt with by a court, the infringement notice may be registered with the Fines Enforcement Registry (s 16) and an order to pay or elect is issued to the alleged offender (s 17). That order may then be enforced in the manner provided for in pt 3.
2. Section 24 of the FPINE Act currently provides:[11]

(1) If -

(a) a modified penalty or outstanding balance of a modified penalty and the associated enforcement fees are paid under this Part; and

(b) proceedings under this Part have not been withdrawn,

no proceedings can be commenced and no penalty can be imposed that could not be commenced or imposed if the alleged offender had been convicted by a court of, and punished for, the alleged offence.

(2) Payment under this Part of a modified penalty or outstanding balance of a modified penalty, and the associated enforcement fees, in respect of an alleged offence is not to be regarded as an admission for the purposes of any proceedings, whether civil or criminal, arising out of the occurrence by reason of which the infringement notice was issued, except where or to the extent that the principal enactment provides that payment of the modified penalty or outstanding balance of the modified penalty under the principal enactment would be regarded as an admission.

(emphasis added)

1. While s 16 of the Criminal Procedure Act provides that payment of a modified penalty does not amount to an admission 'for the purposes of any proceedings, whether civil or criminal', s 24(2) of the FPINE Act refers only to civil or criminal proceedings 'arising out of the occurrence by reason of which the infringement notice was issued'. It is unnecessary to explore this difference of language in the present case. Nor is it necessary to determine the extent to which s 16 of the Criminal Procedure Act continues to apply to payment of the modified penalty in an infringement notice registered with the Fines Enforcement Registry. It appears that only six of the infringement notices paid by the appellant were registered under the FPINE Act.
2. In the present case, payment by the appellant of the modified penalties specified in the infringement notices did not constitute an admission that he engaged in the conduct, such as speeding, alleged in those notices. The State's written sentencing submissions identified the infringement notices which had been issued and paid by the appellant but did not clearly contend that he engaged in the conduct alleged in the infringement notices.
3. While the appellant's trial counsel seemed to accept that the issue and payment of the infringement notices could be taken into account, he did not admit that the appellant had engaged in the conduct alleged in the infringement notices. Evidence of the issue and payment of the infringement notices was not evidence that the appellant had committed the speeding and other offences referred to in the infringement notices.
4. The outcome of this ground may have been different if the appellant's trial counsel had made an admission on behalf of his client that he accepted that he had been guilty of the speeding alleged in each notice. The outcome may also have been different if trial counsel had accepted that the appellant had paid the infringement notices because he had been aware at the time that he was guilty of the conduct alleged, even if he could not now recall the individual occasions of speeding. However, counsel's admissions in this case did not go so far.
5. The present situation was not analogous to taking uncharged acts into account in assessing the need for personal deterrence. In cases where that is permissible, the uncharged acts must be either proven or admitted. The difficulty in the present case is that the only evidence before the trial judge of the relevant conduct was evidence of the issue and payment of infringement notices. The fact of the issue and payment of infringement notices did not prove that the appellant engaged in the conduct alleged in the notices.
6. A different approach was taken by the New South Wales Court of Appeal in Re Fischer; Ex parte Newman.[12] That case concerned s 18B of the Motor Traffic Act 1909 (NSW), which provided for the issue of an infringement notice by an officer to whom it appeared that a person had committed an offence. The notice was to the effect that, if the person did not desire to have the matter determined by the court, the person must pay the prescribed penalty. Under s 18B(5) of that Act as it stood at the relevant time:

Payment of a penalty pursuant to this section shall not be regarded as an admission of liability for the purpose of nor in any way affect or prejudice any civil claim action or proceeding arising out of the same occurrence. (emphasis added)

1. In Re Fischer, it was alleged that a magistrate erred in receiving evidence of payments of an infringement notice under s 18B, which was said to involve no admission of being guilty of the offence in question. The court rejected the offender's reliance on s 18B(5) on the basis that the provision applied only to civil proceedings. Jacobs JA (Herron CJ & Holmes JA agreeing) said:[13]

If 'A' alleges that it appears to him that 'B' has committed an offence and under circumstances where some reply thereto is appropriate 'B' does not deny the commission of that offence, then it seems to me that 'B's' conduct is capable of being regarded as an admission of guilt. In the circumstances of s 18B for the purposes of a criminal prosecution it seems to me that a payment of a penalty in answer to such an allegation by a police officer can be construed as an admission of guilt, whatever the motives may be for making that admission.

1. The decision in Re Fischer is distinguishable from the present case as the operation of s 16(2) of the Criminal Procedure Act and s 24(2) of the FPINE Act is not confined to civil proceedings.
2. There are Queensland cases which found that 'on the spot tickets' issued under regulations made under s 45A of the Traffic Act 1949 (Qld) could be taken into account in sentencing proceedings.[14] However, the Queensland Act did not contain a provision equivalent to s 16(2) of the Criminal Procedure Act or s 24(2) of the FPINE Act. The regulations merely identified traffic offences 'of which notice may be given to an offender or affixed to a vehicle advising that a prescribed penalty may be paid for any such offence without involving court proceedings'.[15]
3. In Mohamed v Director General, Department of Transport,[16] Allanson J held that the State Administrative Tribunal erred in law in treating the payment of traffic infringement notices as convictions for the purpose of deciding whether to cancel an endorsement on the licence of a taxi driver permitting him to carry passengers for reward. That is consistent with the approach we have adopted.
4. In any event, it is not apparent to us how a series of speeding offences which are the subject of the appellant's infringement notice history elevate the significance of personal deterrence when sentencing for a stand-alone contravention of s 54(2) of the RTA.
5. Had the appellant been sentenced on the basis that he was criminally responsible for the death of Mr Kirby and speed, or a casual approach to the task of driving, had been a factor in the incident which resulted in the death, a history of speeding would have more obvious relevance to the factor of personal deterrence.
6. The sole offence for which the appellant was sentenced was of a significantly different character, in that it did not revolve around his driving but rather his failure to stop, irrespective of fault, and look to the needs of the injured party. The appellant was found by the trial judge to be at low risk of committing that kind of offence in the future, which does not then sit well with the proposition that the infringement notices increased the need for personal deterrence.[17]
7. For the above reasons, in our view the trial judge erred in taking into account the appellant's history of traffic infringements in determining there was an increased need for personal deterrence. Ground 1 is established.

1. Given express error has been established, it is strictly unnecessary to resolve whether error is to be inferred from a sentence which is manifestly excessive. However, we will deal with ground 2 for completeness and against the contingency that we are wrong in finding ground 1 to be established.
2. As was noted in Kabambi v The State of Western Australia,[18] the general principles governing appeals contending that error should be inferred on the basis that an individual sentence is manifestly excessive are well established. We adopt that statement of general principle without repeating it. In essence, in order to determine whether a sentence for an individual offence is manifestly excessive, the offence should be viewed in light of the maximum sentence prescribed by law for the crime, the standards of sentencing customarily imposed with respect to it, the place that the criminal conduct occupies in the scale of seriousness of crimes of that type, and the offender's personal circumstances.
3. As noted above, the maximum penalty for the offence of which the appellant was convicted is 20 years' imprisonment. There is also a mandatory driver's licence disqualification for a period of at least 2 years.
4. There are relatively few decisions of this court dealing with sentencing for this offence. The cases often involve sentencing for other offences, including manslaughter, or dangerous driving causing death or grievous bodily harm, so that totality considerations may intrude. There are also a wide variety of circumstances in which the offence may be committed, and there is no sentencing tariff for the offence.
5. With these cautions in mind, we note the following previous decisions of this court dealing with offences involving contravention of s 54(2) of the RTA where the incident caused the death of a person.
6. In Ninyette v The State of Western Australia,[19] the offender was driving his motorcycle in a dangerous manner, which resulted in it colliding with a bus. The offender's pillion passenger was killed in the incident. Although he could not have saved her, the appellant did not stay with his friend. He ran to a nearby home and asked a neighbour to call for help. He returned to the accident scene after a few minutes, but then ran away again, leaving the passenger in the hands of a good Samaritan who had stopped to assist. The offender received a discount of 12.5% for his pleas of guilty. The offender was a 31-year-old man with a history of childhood trauma and mental health issues, which reduced his moral culpability and the significance of personal and general deterrence as sentencing considerations, but increased the significance of community protection as a sentencing consideration. This court found that the sentencing judge in that case erred in failing to take account of time spent in custody. On resentencing, this court would have imposed a sentence of 2 years 7 months' immediate imprisonment for the contravention of s 54(2) of the RTA before applying the totality principle. That sentence was reduced to 12 months' imprisonment for totality and made cumulative upon the sentence of 5 years' imprisonment imposed for the offence of dangerous driving causing death. The court also disqualified the offender from holding or obtaining a driver's licence for 5 years. However, this disqualification period related to all of the offending, including dangerous driving causing death.
7. In The State of Western Australia v Molloy,[20] the offender drove a stolen vehicle dangerously and collided with a stationary van, causing the death of one occupant of the van and grievous bodily harm to six other occupants of the van. He was also charged with contravening s 54(2) of the RTA. The 34-year-old offender with a poor record pleaded guilty to the offence at the first reasonable opportunity and received a discount of 25% under s 9AA of the Sentencing Act 1995 (WA). On a State appeal, this court imposed a sentence of 3 years' immediate imprisonment for the contravention of s 54(2) of the RTA, as part of a total effective sentence of 10 years. The court disqualified the offender from holding a driver's licence for 2 years for the contravention of s 54(2) of the RTA, as part of a total effective disqualification period of 5 years.
8. In Paulose v The State of Western Australia,[21] the offender was sentenced to 3 years 6 months' immediate imprisonment for each of two contraventions of s 54(2) of the RTA. These individual sentences formed part of a total effective sentence of 9 years' imprisonment imposed for offences including manslaughter and dangerous driving causing grievous bodily harm. The offender had driven in a highly dangerous manner and struck two pedestrians standing on a traffic island, killing one and causing grievous bodily harm to the other. The offender drove from the scene and failed to render assistance to either victim. The offender was a 48-year-old man of prior good character who received a 20% discount for his plea of guilty. This court refused leave to appeal on the sole ground of an infringement of the totality principle.
9. In Francis v The State of Western Australia,[22] the offender caused a collision between a trail bike driven by a 15-year-old boy and an SUV by driving his car in pursuit of the trail bike, which he erroneously believed to have been stolen from him. The boy died at the scene. The offender drove past the collision without stopping to render assistance. The offender was convicted of offences including manslaughter and a contravention of s 54(2) of the RTA. The 26-year-old offender received a 20% reduction for his pleas of guilty. The offender had a conviction of driving under suspension. He received a sentence of 18 months' imprisonment for the contravention of s 54(2) of the RTA, as part of a total effective sentence of 7 years' imprisonment. This court dismissed appeals by both the State and the offender. While the State contended that the sentence for the contravention of s 54(2) was manifestly inadequate, the court found that this ground could not be established as the sentencing judge had reduced the sentence by an unspecified amount for totality. The court found that, therefore, error could not be inferred unless the total effective sentence was found to breach the totality principle (which the court found it did not).[23]
10. In The State of Western Australia v Tittums,[24] the offender drove dangerously while drunk and caused the deaths of three persons who were in a vehicle that caught fire after being struck by the offender's vehicle. The victims died at the scene from smoke inhalation and possibly also incineration. The offender abandoned his vehicle and walked home, where he showered, changed clothes and went to bed. The offender was a 35‑year‑old man with no relevant criminal record, who had a history of alcohol and drug abuse. He received a discount of 12.5% for his guilty pleas. The sentencing judge in that case imposed a sentence of 2 years' imprisonment and a motor driver's licence disqualification of 2 years for a single contravention of s 54(2) of the RTA. The court allowed a State appeal, the grounds of which included that the sentence and licence disqualification period for the contravention of s 54(2) were manifestly inadequate. On resentencing, this court imposed a sentence of 4 years' immediate imprisonment for the contravention of s 54(2), as part of a total effective sentence of 10 years' imprisonment. The court imposed a licence disqualification of 4 years for that offence, as part of a total effective licence disqualification of 6 years.
11. In Petersen v The State of Western Australia,[25] the offender's vehicle struck and killed two pedestrians, after which he left the scene. He was convicted after trial of two counts of failing to comply with s 54(2) of the RTA and one count of failure to report the accident. The 27‑year‑old offender had a past traffic record but had not previously been sentenced to imprisonment. He was found to have little remorse or insight into the offending, elevating the significance of personal deterrence as a sentencing consideration. He was sentenced to 2 years 6 months' imprisonment for each of the contraventions of s 54(2) of the RTA, as part of a total effective sentence of 4 years 6 months' immediate imprisonment. The offender was disqualified from driving for 4 years. An appeal against the sentences of imprisonment on various grounds was dismissed.
12. There are some earlier cases which were determined under different maximum penalties and are of limited assistance for that reason.
13. While the cases summarised above do not establish a sentencing range, it is relevant that the sentence of imprisonment imposed on the appellant was longer than any of the sentences previously considered by this court. The length of the period of driver's licence disqualification was equal to that imposed in Tittums. While the offender in Tittums received a 12.5% discount for a guilty plea, the circumstances of the offence in Tittums were markedly more serious than those of the present case.
14. The appellant's offending was of a serious character. It was the case that the offending was not aggravated by circumstances such as the presence of multiple victims who required assistance, or the circumstance that their need for assistance was caused by the appellant's dangerous and grossly negligent driving. However, the appellant was aware that he had struck a person with a forceful impact. He drove on not knowing whether Mr Kirby could be given assistance, or whether Mr Kirby was left in a position where he might be further struck by vehicles travelling along the freeway. The appellant did not have the benefit of the mitigating factors of youth, a guilty plea, or an absence of prior convictions. However, the appellant's risk of reoffending was assessed as low.
15. Having regard to all of the circumstances of this case, and all relevant sentencing principles, in our view both the sentence of imprisonment and period of driver's licence disqualification imposed on the appellant were unreasonable or plainly unjust. Ground 2 is established.

1. This court has the material necessary to resentence the appellant. At the hearing of the appeal, the appellant's counsel indicated that there was no further evidence as to events since sentencing which the appellant sought to place before the court.
2. In our view, the seriousness of the offending is such that a sentence of immediate imprisonment is the only appropriate type of sentence. A sentence of 3 years' immediate imprisonment is commensurate with the seriousness of the offence. The appellant should remain eligible for parole, and the substituted sentence should take effect from the original sentencing date of 4 December 2024. The appropriate licence disqualification period is 3 years, which will take effect from the appellant's release from custody.

1. For the above reasons, we would make the following orders in the appeal:
   1. The appellant's application for an extension of time in which to appeal is granted.
   2. Leave to appeal is granted on both grounds of appeal.
   3. The appeal is allowed.
   4. The sentence of 4 years 3 months' immediate imprisonment imposed by the District Court of Western Australia on IND 972 of 2023 is set aside and a sentence of 3 years' immediate imprisonment is substituted.
   5. The new sentence of imprisonment is taken to have taken effect on 4 December 2024.
   6. The appellant remains eligible for parole.
2. The period of driver's licence disqualification imposed by the District Court of Western Australia on IND 972 of 2023 is set aside.
3. The appellant is disqualified from holding or obtaining a driver's licence for a period of 3 years, to commence from the day he is released from prison.

1. I take a different view to Mitchell and Sweeney JJA. I would grant leave to appeal on both grounds of appeal. I would also grant an extension of time in which to appeal, as the appeal has a reasonable prospect of succeeding. However, for the reasons that follow, I would dismiss the appeal.
2. Mitchell and Sweeney JJA have set out the circumstances of the offending, the appellant's personal circumstances, the sentencing remarks and the grounds of appeal. I will only repeat those matters to the extent necessary to explain why I take a different view as to the disposition of the appeal. It is, however, necessary that I start by saying something about the objective circumstances of the offending.

1. The appellant was convicted, after a verdict of guilty following a trial by jury, of a crime under s 54(3) of the Road Traffic Act 1974 (WA). The appellant, being the driver of a vehicle involved in an incident occasioning bodily harm to David Kirby, failed to stop after the occurrence of the incident and failed to ensure that Mr Kirby received all necessary and practicable assistance, contrary to s 54(1) and s 54(2) of the Act. There was a circumstance of aggravation: the incident occasioned the death of Mr Kirby. Accordingly, the maximum penalty for the offence was 20 years' imprisonment: Road Traffic Act s 54(3)(a).
2. On 4 December 2024 the appellant was sentenced in the District Court of Western Australia by Christian DCJ to 4 years and 3 months' immediate imprisonment. Her Honour also ordered that the appellant was disqualified from holding or obtaining a driver's licence for 4 years; and that the appellant was eligible for parole.
3. The appellant was sentenced on the basis that there was no finding that he was at fault for the incident that caused Mr Kirby's death (ts 1040 ‑ see also ts 1041). Otherwise, the sentencing judge found that (ts 1038 - 1040):
   1. At about 4.32 am on Sunday, 9 October 2022, while the appellant was driving his work Mitsubishi ASX motor vehicle on the Mitchell Freeway, the appellant's vehicle struck the electric bicycle that Mr Kirby was riding.
   2. Mr Kirby was struck from behind while riding in a southerly direction along the left‑side of a two‑lane carriageway (due to roadworks Mr Kirby was travelling on what was ordinarily an emergency lane).
   3. The collision was one of 'some magnitude'. Mr Kirby hit the windscreen of the appellant's vehicle and was propelled or carried forward. There was damage to the left front and side of the appellant's vehicle. Mr Kirby's bicycle's pannier rack became embedded in the left‑hand front side of the appellant's vehicle.
   4. The appellant was either actually aware or had a belief that he had struck a person while driving the vehicle. Nevertheless, the appellant continued driving to his work. The sentencing judge concluded that the failure to stop was because:

[Y]ou [ie the appellant] put your own wellbeing ahead of that of the victim ... you feared the consequences for yourself from the crash ... I'm satisfied that you must have feared that you might be held responsible (ts 1040 ‑ 1041).

1. Subsequently the appellant made a deliberately false report to his employer and submitted a false statement on an insurance claim form. The sentencing judge was satisfied that these lies on the part of the appellant were deliberate and were designed to distance himself from having been involved in a collision on the Mitchell Freeway. They were:

designed to distance [the appellant] from the incident so as to deflect any responsibility for the crash (ts 1040).

1. Accordingly, while the appellant fell to be sentenced on the basis that he was not at fault in causing Mr Kirby's death by the incident, the appellant's failure to stop and to ensure that Mr Kirby received all necessary and practicable assistance was due to the appellant's fear that he might be held responsible for the incident.
2. The sentencing judge did not accept the appellant's evidence that he slowed down and looked in his rear‑view mirror. Nor did her Honour accept that the appellant believed that his vehicle had hit a kangaroo. The sentencing judge was satisfied beyond reasonable doubt that the appellant did not honestly believe that this is what had occurred. It was inconceivable that the appellant did not see anything ‑ at least at the time of impact ‑ and that the appellant did not hear anything at that time or in the seconds immediately afterwards (ts 1038).
3. The sentencing judge characterised the appellant's failure to stop and render assistance as 'callous' ‑ her Honour said that the appellant had 'no regard for whether the person you hit was alive or dead' (ts 1040). The characterisation of the appellant's actions as callous is an understatement. It was, given the sentencing judge's other findings, both callous and calculated. Instead of concern for the person who had been hit by his vehicle, in a collision of some magnitude on the freeway, the appellant was concerned with the consequences he might face from the incident were he to stop and render assistance. The appellant acted in his self‑interest without proper regard for a person his vehicle had collided with while he was driving. This, in my opinion, is a significant aggravating factor of the offending.
4. In addition to the above, the sentencing judge concluded, correctly in my opinion, that the appellant's offending was aggravated by four further factors. First, the appellant could not have known that no amount of assistance would save Mr Kirby's life. Second, as it was still dark and the appellant did not know where Mr Kirby had landed, the appellant could not have had any confidence that another driver would necessarily have seen Mr Kirby and stopped to render assistance. Third, it was not likely, in the circumstances of the incident, that another driver would come to Mr Kirby's aid. Fourth, the appellant's failure to stop and remain at the scene of the incident impacted on the crash scene investigator in reaching conclusions about what happened and would have been frustrating to the investigation (ts 1040 ‑ 1041).
5. The sentencing judge also had regard to victim impact statements received from Mr Kirby's daughters and brother.

1. Mitchell and Sweeney JJA have developed the appellant's personal circumstances and the mitigating factors. It suffices if I mention the following. The appellant was 44 years of age at the time of the offending and 47 years of age at the time of sentencing. He was not entitled to the benefit of youth. No discount could be afforded pursuant to s 9AA of the Sentencing Act 1995 (WA). The appellant had not shown any remorse.
2. However, the sentencing judge was satisfied that the offending was out of character. In that respect her Honour recounted the appellant's family and work history and had regard to 11 character references. The sentencing judge was satisfied that the appellant was ordinarily a hard‑working, kind, caring and decent individual who had contributed in many positive ways to society. The appellant was at low risk of reoffending in this manner. His prospects of rehabilitation were good (ts 1041 ‑ 1043).

Ground 1 - the appellant's traffic infringements

1. Ground 1 alleges an express error. The appellant alleges that the sentencing judge erred by taking into account the appellant's history of traffic infringements in determining that there was an increased need for personal deterrence. The ground focuses on the passage of the sentencing judge's remarks that is reproduced in Mitchell and Sweeney JJA's reasons at [35] above.
2. There are two strands to the appellant's argument in support of ground 1. First, having regard to the terms of s 16(2) of the Criminal Procedure Act 2004 (WA) and s 24(2) of the Fines, Penalties and Infringement Notices Enforcement Act 1994 (WA), there was said to be no relevant admission of liability. It followed that the sentencing judge had considered unproven allegations and facts in assessing the need for personal deterrence. Second, even if the infringements were relevant in this respect, the appellant argued that they 'could only have a little bearing' on the penalty to be imposed (appellant's submissions par 16).
3. It is not necessary to consider the statutory provisions relied on by the appellant. At the sentencing hearing the appellant, by his then counsel, admitted the underlying conduct comprised in the traffic infringements. The sentencing judge was not in error in finding that the appellant had engaged in the underlying conduct the subject of the traffic infringements.
4. A court sentencing an offender may inform itself in any way it thinks fit in deciding on the proper sentence to be imposed: Sentencing Act s 15. It is common, in this respect, for a sentencing court to accept as fact an admission against interest.
5. It is only necessary for the State or the offender to call evidence about an aggravating or mitigating circumstance, as the case may be, if the asserted matter is controverted by the other party or if the sentencing judge is not prepared to act on the assertion, even though it is not controverted by the other party: Law v The State of Western Australia.[26] A sentencing judge is entitled ‑ but is not bound ‑ to proceed on facts which are agreed or not disputed: Vidovic v The State of Western Australia.[27]
6. The appellant was convicted on 11 November 2024; the sentencing hearing occurred on 4 December 2024. In the interim, on 25 November 2024, the State filed and served written sentencing submissions. These attached both the appellant's 'criminal history' (which included certain traffic related offences) and the appellant's 'list of traffic infringements' (which included 22 speeding infringements in the period between 1999 and the offending). The State's submissions recorded that the appellant had a limited but relevant criminal history (par 41).
7. It was, in the circumstances, apparent that the State intended to rely on the underlying conduct comprised in the appellant's list of traffic infringements.
8. The appellant's then counsel filed and served written sentencing submissions on 29 November 2024 (ie after having received the State's written sentencing submissions and the attached list of traffic infringements). The appellant's written sentencing submissions stated that the appellant had:

no prior history of criminal offending, although he does have a history of traffic offences speeding tickets and the like. The alcohol related offences are many years in his past (par 8).

1. The traffic infringements were raised at the sentencing hearing. Mitchell and Sweeney JJA reproduce two of the relevant passages at [32] and [33] above. In the second of those passages (ts 1018) the appellant's then counsel acknowledged the list of traffic infringements. Later, when addressing the sentencing judge on the highlights of the appellant's personal background, the appellant's then counsel stated:

Traffic offending, tickets and infringements, including an alcohol‑related driving offence in his past, these are, of course, all to be taken into account. But generally speaking, in terms of his conduct in the community, apart from his traffic history, we have a creditable man and, in our respectful submission, that credit should bear perhaps extraordinary weight in this sentencing outcome (ts 1028). (emphasis added)

1. In context, in accepting that the traffic infringements were to be taken into account, the appellant, by his then counsel, admitted the underlying conduct comprised in the traffic infringements. That is particularly so given the contents of the appellant's written sentencing submissions. If there was no acceptance of the facts that comprised the basis for the traffic infringements, and the State was being put to proof in this regard, the appellant's then counsel would have approached the matter quite differently. There would have been nothing to take into account ‑ the fact of the underlying conduct would itself have been in contest. However, in accepting that the traffic infringements were to be taken into account, there was necessarily acceptance of the underlying facts that constituted the infringements. The appellant, by his then counsel, elected to confess and avoid; there was acceptance of the underlying conduct but insistence that notwithstanding that conduct the appellant remained a creditable person in terms of his other conduct in the community.
2. Based on the appellant's then counsel's admission, the sentencing judge was entitled to find ‑ as her Honour evidently did ‑ that the appellant had engaged in the underlying conduct the subject of the traffic infringements.
3. The second strand of the appellant's argument in support of ground 1 can be dealt with quite shortly. The effect of the appellant's argument is that, assuming that there was proof of the underlying conduct comprised in the traffic infringements, the conduct was an extraneous or irrelevant matter. I disagree. Indeed, the appellant's own submission is inconsistent with so finding. In saying that these facts and circumstances could only have had 'little bearing' there is acceptance that there was some bearing.
4. I accept that the offending the subject of the traffic infringements was of a different character to the offending for which the appellant was to be sentenced. But, as the sentencing judge correctly observed, it demonstrated a disregard for the traffic laws ‑ and the subject offending is concerned with the obligations of a person when driving a motor vehicle. The sentencing judge was correct to conclude that a disregard for the traffic laws increased the need for personal deterrence.
5. In any event this conclusion should not be considered in isolation. Standing alone the appellant's disregard for the traffic laws did increase the need for personal deterrence. This is all that is being said in the impugned passage. But this increased need for personal deterrence, having regard to the appellant's historical conduct on the roads, was evidently offset by the other matters to which the sentencing judge had regard. The appellant's prospects of rehabilitation were good and he was at low risk of reoffending. Overall personal deterrence was not a weighty sentencing factor and the sentencing judge did not treat it as such.
6. In the circumstances I would dismiss ground 1.

1. Ground 2 alleges an implied error. The appellant alleges that the sentence of 4 years and 3 months' immediate imprisonment and the licence disqualification period of 4 years are manifestly excessive as to length.
2. The basis for such an appeal against sentence is well established. The applicable principles are summarised in Kabambi v The State of Western Australia:

(1) Sentencing is a discretionary exercise. An appellate court can intervene only if the appellant demonstrates either an express or implied material error. ... Implied error arises where the end result is so unreasonable or unjust that the court must conclude that a substantial wrong has occurred. Thus, an appellate court cannot substitute its own opinion for that of the sentencing court merely because the appellate court would have exercised a sentencing discretion differently.

(2) In order to determine whether a sentence for an individual offence is manifestly excessive or inadequate, the offence should be viewed in light of the maximum sentence prescribed by law for the crime, the standards of sentencing customarily imposed with respect to it, the place that the criminal conduct occupies in the scale of seriousness of crimes of that type, and the offender's personal circumstances.

...

(4) The range of sentences customarily imposed for a crime does not establish the range of a sound exercise of the sentencing discretion. Sentences customarily imposed in comparable cases provide a yardstick or reference point for ensuring broad consistency in sentencing, bearing in mind the scope for significant variations in relevant sentencing factors, and that there is no single correct sentence. What is important is the unifying principles which sentences imposed in comparable cases reveal and reflect.

(5) When this court dismisses an appeal against sentence and when it resentences on a successful appeal, its decision does not fix the upper or lower limit of the range.[28]

1. So far as the contention is one of implied error, the ultimate question is whether on the facts the sentence (as to the 4 years and 3 months' immediate imprisonment) or the order (as to the 4‑year licence disqualification period) is unreasonable or plainly unjust such that the court must conclude that a substantial wrong has occurred: House v The King.[29] The court must be driven to conclude that there must have been 'some misapplication of principle' when regard is had to all of the relevant sentencing factors (including the degree to which the sentence differs from sentences that have been imposed in comparable cases): R v Pham.[30]
2. The appellant accepted that there were few appellate decisions that dealt with this type of offending ‑ ie one with the circumstance of aggravation that the incident occasioned death - since the 2008 increase in the maximum penalty effected by the Road Traffic Amendment Act (No 2) 2007 (WA). Moreover, most of the decisions involved additional offending, often relating to the offender's driving. It was accepted that the latter factor impacted on the usefulness of the prior decisions as comparable cases because totality considerations often intruded. Nevertheless, reference was made to Petersen v The State of Western Australia;[31] The State of Western Australia v Tittums;[32] Francis v The State of Western Australia;[33] and Paulose v The State of Western Australia.[34] In addition the State referred to Ninyette v The State of Western Australia.[35]
3. My attention has also been drawn to The State of Western Australia v Molloy.[36]
4. In contending that the sentence fell outside the range open on a proper exercise of the sentencing discretion, the appellant submitted that the penalty imposed was unreasonable or plainly unjust because there was no criticism or concerns about his manner of driving at the time of the incident. The appellant also sought to make something of the circumstance that the offending only involved one death. The appellant submitted that these factors set his offending apart from the decided cases such that the sentence of imprisonment and licence disqualification fell outside the range open on a proper exercise of the sentencing discretion.
5. The manner of the appellant's driving is not, in my opinion, something that impacts significantly on the seriousness of the appellant's offending.
6. The gravamen of the appellant's crime under s 54(3) is the twin fold failure to stop and failure to ensure that a victim received all necessary and practicable assistance. The obligation to stop, and the obligation to ensure that each victim receives all necessary and practicable assistance, arises after a vehicle driven by a person is involved in an incident occasioning bodily harm to another person. It arises irrespective of the manner of the offender's driving that led to the incident. The sole pre‑condition to the two obligations is that the vehicle driven by the offender is involved in an incident occasioning bodily harm to another. The statutory purpose or object of s 54(3) of the Road Traffic Act, when read and construed in the context of s 54(1) and s 54(2), is to cause drivers whose vehicles are involved in an incident occasioning bodily harm to another person to stop and render all necessary and practicable assistance irrespective of whether or not those drivers were at fault in the incident.
7. The social desirability of that statutory purpose or object is self‑evident. Compliance with the obligations mandated by s 54(1) and s 54(2) tends to reduce the likelihood of serious injury or death where a vehicle is involved in an incident occasioning bodily harm. In sentencing for a crime under s 54(3) significant weight has to be given to general and personal deterrence and the protection of vulnerable road users.
8. The appellant was not legally responsible for Mr Kirby's death. There was no finding that he was at fault for the incident that caused Mr Kirby's death. Had the appellant been legally responsible for Mr Kirby's death he would have been punished separately for that offence. The manner of the appellant's driving is relevant to whether he was at fault in the incident. It does not materially affect the appellant's culpability in subsequently failing to meet his obligations to stop and to ensure that Mr Kirby received all necessary and practicable assistance. That is even more so where the appellant put his own wellbeing ahead of the victim because of the appellant's fear that he might be held responsible for the incident.
9. Mitchell and Sweeney JJA have summarised the circumstances and outcomes of the prior decisions relied on by the parties as comparable cases. I will not repeat that exercise. Most of the prior decisions referred to by the parties are of limited assistance. Petersen is a case refusing leave to appeal on a ground of manifest excess. All that can be said is that the sentence in that case was not even arguably excessive: Hodges v The State of Western Australia.[37] In written submissions the appellant relied on Corboy J's description of the sentence as 'high' [191]. I note that Mazza JA used the same descriptor at [79]. In both instances, however, the observation was made as to the total effective sentence rather than the individual sentence for the s 54(3) offence.
10. Francis is affected by the circumstance that the sentence appealed from was reduced in an unspecified amount for totality [81], [85]. In Paulose, while two s 54(3) offences resulted in sentences of 3 years and 6 months' immediate imprisonment, the only ground of appeal concerned an alleged infringement of the first limb of the totality principle [5]. This court did not consider the individual sentences. In any case leave to appeal was refused. Ninyette is a case where the personal circumstances of the offender reduced moral culpability and the significance of general and personal deterrence [73], [80], [86], [100]. The offender ran to a nearby house and asked the occupant to call for help. After going back to the accident scene, where the victim was being helped by a bystander, the offender fled [16] ‑ [17], [52]. In these respects, the offending was less serious than the offending of the appellant. There was also a plea of guilty that attracted a 12.5% discount [23], [66], [104] together with other mitigating factors [101] ‑ [102]. In resentencing, before providing for a reduction for totality reasons, this court would have imposed a sentence of 2 years and 7 months' immediate imprisonment [106].
11. Some assistance is provided by Ninyette. More is available from Tittums and Molloy. Tittums involved more serious offending than the appellant's offending. After a collision at about 1.45 am, where the intoxicated offender was travelling at excessive speed, the vehicles involved in the incident ignited and were engulfed in flames; the offender, who was able to exit his vehicle, left without alerting law enforcement authorities and walked home; the three occupants of the other vehicle died [11] ‑ [12], [82]. The offender pleaded guilty [15]. A State appeal against sentence on the ground of manifest inadequacy succeeded [89] ‑ [90], [110]. This court resentenced the offender to 4 years' immediate imprisonment for the count of failing to stop and failing to ensure that the victims received all necessary and practicable assistance contrary to s 54(3) of the Road Traffic Act [113]. The offender obtained a 12.5% s 9AA discount for his plea of guilty [111]. There were other mitigating factors including genuine remorse and that the offender took responsibility for his criminal behaviour [15], [83], [112].
12. The sentence imposed in the present case (4 years and 3 months' immediate imprisonment) is higher than the sentence in Tittums (4 years' immediate imprisonment). However, the sentence imposed in the present case is broadly consistent with the sentence in Tittums ‑ or at least not inconsistent with the sentence in Tittums ‑ when it is appreciated that: (1) the appellant's offending, while not as serious as the offending in Tittums, is also a serious example of a crime under s 54(3) of the Road Traffic Act; and (2) the appellant did not have the benefit of any s 9AA discount or the other mitigating factors available to the offender in Tittums.
13. Molloy was also a successful State appeal. The offender, who was driving in a stolen vehicle, was speeding and paying insufficient attention to the road. At about 4.00 pm in the afternoon the offender's vehicle crashed into the rear of a stationery van carrying eight persons. The offender did not brake, swerve or take evasive action before impact. One of the persons in the van died; four suffered grievous bodily harm; and two suffered bodily harm. The offender left the crash scene on foot without reporting the accident or assisting any of the victims. Two hours later the offender's mother called the police. The offender had a serious and extensive prior criminal record, including for stealing motor vehicles, and was disqualified for life from holding or obtaining a driver's licence. Among other things the court accepted that the total effective sentence infringed the first limb of the totality principle. It was necessary to resentence on all counts. Having allowed a discount of 25% pursuant to s 9AA this court resentenced the offender to 3 years' immediate imprisonment for his offence under s 54(3).
14. Again, after taking account of the discount for the plea of guilty in Molloy, the sentence imposed in the present case is broadly consistent with the sentence in Molloy.
15. In 2013 Buss JA (McLure P & Mazza JA agreeing) observed that since the maximum penalties were increased in 2008 a sentencing range for offences against s 54 of the Road Traffic Act was yet to be established: Abfahr v The State of Western Australia.[38] See also Tittums [62], [88]. That remains the case in 2026. There is no tariff for offending of this kind. However, in a more general sense, the standards of sentencing customarily imposed for offences of this kind are apparent from Tittums, Molloy and Ninyette.
16. The sentencing judge considered that, having regard to the aggravating factors her Honour identified, the present case was a 'very serious example' of this type of offending (ts 1043). I agree. While the appellant's offending was less serious than the offending in Tittums it remained a very serious example of this type of offending having regard to the statutory purpose or object of the offence. The seriousness of the offending arises from the nature of the collision (one of some magnitude); the place at which it occurred (a freeway where it was to be expected that subsequent traffic would be travelling at speed further imperilling the person hit by the appellant's vehicle); the time of the collision (in the early hours of the morning meaning it was unlikely that another driver might see the person hit by the appellant's vehicle and stop to render assistance); and, in particular, the callous and calculated nature of the offending (the appellant acting in self‑interest because of his fear of the consequences to himself insofar as he feared that he might be held responsible for the incident).
17. The victim, Mr Kirby, having been hit from behind by the appellant's vehicle in a collision of some magnitude while travelling on the Mitchell Freeway in the dark, was extremely vulnerable. On the findings made by the sentencing judge, unchallenged in this appeal, that vulnerability must have been obvious to the appellant. The appellant ignored that vulnerability to further his interests. Thereafter the appellant made false reports designed to distance himself from the incident and deflect any responsibility for the incident.
18. While the sentencing judge accepted that the appellant's prospects of rehabilitation were good, and he was at low risk of reoffending in this manner, the appellant was not remorseful. Nor was the appellant entitled to any discount pursuant to s 9AA of the Sentencing Act. In any event, while the need for personal deterrence was ameliorated, this was a case in which general deterrence and the protection of vulnerable road users required the imposition of a substantial term of immediate imprisonment. Anything less would tend against the fulfilment of the statutory purpose or object of the offence ‑ a statutory purpose or object that has been accorded substantial importance given the significant maximum penalty that has been prescribed under s 54(3)(a) of the Road Traffic Act.
19. The maximum penalty for the appellant's offending is 20 years' imprisonment. The sentence imposed of 4 years and 3 months' immediate imprisonment is slightly more than one fifth of the maximum penalty. When the maximum penalty of 20 years' imprisonment is taken into account, as it must be, and there is due regard to the standards of sentencing customarily imposed, the objective seriousness of the appellant's offending and the place that the offending conduct occupies on the scale of seriousness for offences of its kind, and the limited mitigation available to the appellant beyond his prospects of rehabilitation and low risk of reoffending in this manner, I am not driven to conclude that there has been some misapplication of principle in the sentence imposed of 4 years and 3 months' imprisonment. The appellant's sentence is undoubtedly firm. In the end, however, I am satisfied that the sentence was commensurate with the seriousness of the offending, taking into account the matters mentioned in s 6(2) of the Sentencing Act.
20. I consider that the sentence of 4 years and 3 months' immediate imprisonment does not reach, although it approaches, a length which ought to be characterised as unreasonable or plainly unjust. If the sentence had been any longer the position may well have been different. The sentence, while firm, is not unreasonable or plainly unjust so as to signify that a substantial wrong has occurred or there has been some misapplication of principle. I would dismiss ground 2 so far as it challenges the length of the appellant's sentence.
21. Ground 2 also challenges the length of the period for which the appellant was disqualified from holding or obtaining a driver's licence. This too is said to be manifestly excessive. There was a mandatory disqualification period of not less than 2 years: Road Traffic Act s 54(3)(a). However, the offence under s 54(3)(a) does not carry a maximum period of disqualification: Tittums [93]. The appellant's submissions in support of the contention that the disqualification period of 4 years was manifestly excessive did no more than repeat what had been said in challenging as manifestly excessive the length of the term of immediate imprisonment.
22. In Gray v The State of Western Australia, Mazza JA (McLure P & Newnes JA agreeing) stated:

[T]he question of the length of a driver's licence disqualification is a matter of discretion to be decided having regard to the relevant statutory provisions in all of the circumstances of the case. The same considerations that informed the sentencing of the offender generally will inform the question of the length of any disqualification. Thus, any disqualification must be proportionate to the gravity of the offence and be no longer than is required to achieve the purposes of punishment, such as the protection of the community, deterrence, retribution and reform.[39]

1. That passage was approved in Tittums [97].
2. The appellant's offending was a very serious example of its type. There was a strong need for a penalty of disqualification that effected general deterrence. I am satisfied, for the reasons I have given in concluding that the sentence of imprisonment was not unreasonable or plainly unjust, that the 4‑year licence disqualification period was commensurate with the seriousness of the offence. The appellant has not demonstrated that the length of the licence disqualification is disproportionate in the sense described by Mazza JA in Gray. I would also dismiss ground 2 so far as it challenges the length of the licence disqualification period.

1. The appellant should be granted an extension of time to appeal. There should also be leave to appeal on both grounds of appeal. However, I would dismiss the appeal. As I would dismiss the appeal there is no need for me to consider the question of resentencing the appellant.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[11] References to payment of the outstanding balance of a modified penalty were introduced by s 54 of the Road Traffic Legislation Amendment (Infringement Management Reform) Act 2024 (WA). Although the infringement notices in the present case were registered prior to this amendment, nothing turns on the amendment in this case.

[12] Re Fischer; Ex parte Newman [1969] 1 NSWR 538.

[14] See R v McIntosh [1968] Qd R 570, 576 (Hart J), 582 - 583 (Lucas & Douglas JJ agreeing); R v Gordon; Ex parte Attorney General (Qld) [1975] Qd R 301 (Williams J).

[15] Reg 140 of the Traffic Regulations 1962 (Qld) inserted by regulations made on 7 August 1965 (Queensland Government Gazette (No 111) at page 1825. Subsequent amendments prior to the decisions in McIntosh and Gordon did not alter the structure of the regulations.

[16] Mohamed v Director General, Department of Transport [2010] WASC 375 [23] - [25].

[18] Kabambi v The State of Western Australia [2019] WASCA 44 [21].

[19] Ninyette v The State of Western Australia [2025] WASCA 52.

[20] The State of Western Australia v Molloy [2020] WASCA 123; (2020) 93 MVR 361.

[21] Paulose v The State of Western Australia [2019] WASCA 182.

[22] Francis v The State of Western Australia [2019] WASCA 43.

[24] The State of Western Australia v Tittums [2018] WASCA 23.

[25] Petersen v The State of Western Australia [2016] WASCA 66; (2016) 50 WAR 45.

[26] Law v The State of Western Australia [2009] WASCA 193 [31].

[27] Vidovic v The State of Western Australia [2024] WASCA 63 [75].

[28] Kabambi v The State of Western Australia [2019] WASCA 44 [21].

[29] House v The King [1936] HCA 40; (1936) 55 CLR 499, 505.

[30] R v Pham [2015] HCA 39; (2015) 256 CLR 550 [28](7).

[31] Petersen v The State of Western Australia [2016] WASCA 66.

[32] The State of Western Australia v Tittums [2018] WASCA 23.

[33] Francis v The State of Western Australia [2019] WASCA 43.

[34] Paulose v The State of Western Australia [2019] WASCA 182.

[35] Ninyette v The State of Western Australia [2025] WASCA 52.

[36] The State of Western Australia v Molloy [2020] WASCA 123; (2020) 93 MVR 361.

[37] Hodges v The State of Western Australia [2025] WASCA 136 [74](7).

[38] Abfahr v The State of Western Australia [2013] WASCA 87 [69].

[39] Gray v The State of Western Australia [2015] WASCA 108; (2015) 71 MVR 31 [140].