Court of Appeal (WA)|2000-12-20|Before: Pidgeon J, Wallwork J, Wheeler J

Parsons v The Queen [2000] WASCA 407 (20 December 2000)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : PARSONS -v- THE QUEEN [2000] WASCA 407

Criminal Law & Procedure - Sentencing - Dangerous driving causing death - 18 year old offender - Utility overturned in an area of road works - Culpable driving for a considerable distance earlier - Remorse shown - 3 year sentence reduced to 2 years - Turns on own facts

Ainsworth v D (A Child) (1992) 7 WAR 102

Atholwood v The Queen (1999) 109 A Crim R 465

Fleming v The Queen, unreported; CCA SCt of WA; Library No 970005; 17 January 1997

Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665

MacKereth v The Queen (1991) 12 MVR 463

Pinkstone v The Queen [2000] WASCA 228

Punch v The Queen (1993) 9 WAR 486

R v Guilfoyle [1973] 2 All ER 844

R v Stebbings (1990) 4 WAR 538

1 PIDGEON J: The applicant pleaded guilty in the District Court to an indictment alleging dangerous driving causing death. He was sentenced to a term of 3 years imprisonment with an order that he be eligible for parole and with further orders suspending his licence and disqualifying him from driving. The thrust of this appeal is that, having regard to the fact that the maximum sentence which can be imposed is four years imprisonment, the learned sentencing Judge gave insufficient weight to the mitigating factors. It is claimed these were that the applicant was 18 years of age, that there was great remorse and that there was a plea of guilty.

2 The facts relating to the accident were that at about 11.40 pm on 22 September 1998 the applicant left the Royal George Tavern in Fremantle driving a Toyota Hilux Utility. There was a passenger seated in the front next to him and three persons were travelling on the tray at the rear. He was seen travelling along Hornsby Street approaching the intersection with Marmion Street. His manner of driving caused him to come under notice of a driver of a vehicle travelling in a westerly direction in Marmion Street. This driver heard a vehicle travelling fast in Hornsby Street approaching Marmion Street. It turned sharply into a carpark just near the corner of Marmion Street. The speed of the vehicle and the manner that it turned into the car park drew the attention of the other driver. The applicant travelled behind this driver for about half a kilometre in an easterly direction along Marmion Street. The vehicles approached the traffic lights at the intersection of Rome Road and, prior to the lights, the applicant, overtook this other vehicle.

3 The driver of the other vehicle said that when the applicant's utility passed him, there was a concrete traffic island with a keep left sign on it. The utility went to the wrong side of the island, overtook the other vehicle, then accelerated away from it. The driver then saw the utility go through the red lights at the intersection of Rome Road. He said that the applicant was travelling at about 60 or 65 kph. By the time the other driver reached the Rome Road intersection the traffic lights had turned green and he decided to try and catch up to the utility to obtain its number. Although he reached speeds of 70 or 80 kph, he was, at first, unable to catch up with the utility. He said the utility must have slowed down at the traffic lights at North Lake Road or at Norma Road because, by then, he was able to catch up.

4 The applicant's vehicle approached a section of Marmion Street which was being widened and there were road works for a length of approximately 700 metres. The greater portion of the westbound or opposing lane was closed. The remaining portion of the road was divided into two single lanes, one for eastbound traffic and the other for westbound traffic. The division of these two lanes was marked at the commencement and end by a water-filled longitudinal module normally used in the erection of barriers. Between these two modules was a line of cones marking the division between the westbound and eastbound lane. There was also a line of cones marking the edge of the westbound lane from the area of road being resurfaced and widened. The road works were marked by a 30 kph restriction. The applicant's utility overturned after entering this area and landed on the roof of its cab in the area of road under repair. The applicant was able to alight from the vehicle. It was necessary to obtain the aid of the Fire and Rescue services to release the front passenger by reason of the roof of the cab of the utility being crushed. The three persons on the back of the utility were thrown from it. Two were comparatively unhurt, but unfortunately the deceased when thrown from the tray, struck her head on a sharp object and it would appear was killed almost instantly.

5 The driver of the vehicle which had been following the applicant was not able to give a good description of what occurred as he was still some distance away. He saw the brake lights come on at least twice and he saw the utility swerve sharply to the right and then go up on two wheels. He said this all appeared to happen in slow motion and the passengers on the back tumbled out onto the road as though they were dolls. He said he had the impression that the driver was switching from one lane to the other. He said, "I have the feeling the car was to the right side of the barriers before it turned over, I got the impression that the driver was either switching from one lane to the other or couldn't decide which lane to go in." I shall later refer to further evidence to show that the utility did in fact enter the incorrect lane.

6 The applicant's vehicle came under the observation of a passenger of another following vehicle. This person said that, at the traffic lights of either North Lake Road or Norma Road, he heard a vehicle come very fast from behind. He said it was a utility and passed his vehicle at an excessive speed. It changed lanes and passed in the left hand lane. He said as the vehicle went past it swerved in front of the vehicle he was in as the lanes on the road changed back from two lanes into one. He said it was a very violent manoeuvre. He said that at that stage his vehicle would have been doing about 30 kph and the utility "was accelerating away from us at a rate of knots, it would have been about 300 metres ahead of us." He said the vehicle appeared to go to the right "and then it cartwheeled". He said at one stage it appeared to be completely off the ground and landed upside down on the new graded portion of the road. He saw the three persons on the back thrown out as the vehicle went over.

7 The sentencing Judge was informed that the marks on the scene showed that the applicant entered the incorrect lane. On entering this lane the left front portion of the applicant's vehicle struck the right side of the water-filled barrier placed at the commencement. Tyre marks showed that from this point, the vehicle veered into the correct lane and then veered back towards the incorrect lane. The length of the tyre marks appeared to be in excess of 24 metres. There were then gouge marks in the incorrect lane and also some gouge marks in the area of the road under construction. The vehicle was overturned in the area under construction and was facing diagonally across this area some distance away. Prior to turning over it struck one of the cones. His Honour was informed that prior to entering the area of the road works, the applicant's vehicle was estimated to be travelling at 60 kph. It had slowed down, but not to the designated speed limit of 30 kph. The road works were marked by flashing orange lights, keep left signs, road work warning signs and signs indicating the speed limit of 30 kph. They commenced at a bend prior to the road works. A blood sample was taken from the applicant which showed a blood alcohol reading of .076 per cent calculated back to .051 at the time of the accident. Traces of cannabis were also found.

8 The applicant was born on 13 March 1980 and accordingly was 18 years of age at the time of the offence. The learned sentencing Judge referred to factors that would bring this offence into the upper range of dangerous driving. His Honour said that it had been submitted to him that this was not a case of skylarking. His Honour very understandably said he did not accept that. He said there was a great deal more than momentary inattention. He said that the facts indicated a selfish disregard for the safety of the others in the vehicle as it must have been known to the applicant that there were three persons of his age seated in the rear tray of the utility in an unprotected position should anything eventuate. He said that the applicant displayed a reckless manner in driving along Marmion Street and his Honour then referred to the facts I have set out. His Honour's ultimate conclusion was that this offence was at the upper range of a dangerous driving causing death, but his Honour considered it was not the worst case, although it was approaching that. It would appear that his Honour had in mind that a higher consumption of alcohol would have brought the offence into the highest category. It had been submitted to the sentencing Judge and it was claimed on the hearing of this appeal that there was a combination of coincidences which caused the vehicle to roll over. It was claimed that this was supported in an engineer's report which was obtained. His Honour rejected this and I consider rightly. The very nature of the applicant's driving over a sustained time made a fatal accident likely.

9 His Honour reached the view that an immediate term of imprisonment was called for and, as I mentioned, this is not in contention. The appeal is concerned with mitigating factors. It had been submitted to his Honour that there was significant remorse and there was a range of evidence to support this. The applicant's immediate reaction when approached by police at the scene was to ask to be locked up. There was evidence from a psychologist that what occurred caused a subsequent psychological condition and the report provides evidence of remorse and this was the view of persons who gave references. The applicant wished, so far as he was able, to contact the deceased's family. Near the time of the trial he wrote a letter and arrangements were made for him to meet members of the family. His Honour said that he had been told that matters went as satisfactorily as they could in the circumstances. It was also ascertained that the applicant, on the monthly anniversary of the accident, had been placing flowers near where the accident occurred. There was every indication to show that this was done genuinely and in sorrow and his Honour made the finding that there was remorse on this account.

10 On 24 November 1998 the applicant was charged with manslaughter. On 19 February 1999 he was committed for trial to the April sessions of the District Court. On 6 April 1999 he pleaded not guilty and was remanded to a status hearing on 24 September 1999 to fix a date of trial. On that day a trial date was fixed for four days commencing on 15 May 2000. On 23 March 2000 he offered a plea of guilty to dangerous driving causing death which was accepted by the Crown and he stood for sentence on 15 May 2000 the date fixed for the trial. This must be regarded as a late plea. One of the aims of the status conference, as is well known to counsel practising in the area, is to give an accused person the opportunity of indicating a wish to offer a plea to a lesser charge. The Crown would be unable to consider the matter until there was an offer to plead guilty to a lesser charge open on the indictment. The plea was offered less than two months prior to the trial date and it would be difficult in these circumstances to substitute another trial. The applicant's advisers needed the assistance of an engineer's report but this had been obtained on 22 January 2000. An early plea would mean that the anxiety to the family of the deceased would be removed, particularly those required to give evidence. There is comment in the victim impact statements as to the fact that the anxiety remained up until the time of the plea. It would also be difficult to infer remorse from a plea alone at such a late stage. This would not be of consequence in this case as there is other evidence to establish the remorse his Honour found to be present. His Honour approached the matter on the basis that it was not a plea at the earliest opportunity, but neither was it a plea on the doorstep of the court. His Honour, when referring to mitigating circumstances, said he was taking into account this plea of guilty.

11 There was a further factor that made the assessment difficult for his Honour and this was that, at about 3.40 pm on Friday, 2 April, whilst the applicant was on bail, he was riding a motor cycle and turned into a street at about 15 to 20 kph. He then accelerated hard and caused the front wheel to lift about one metre from the ground, then travel about 8 to 10 metres with the front wheel in the air at a speed of about 40 to 50 kph. He was in the centre of the road but there were no other vehicles in the immediate vicinity. For this happening he was convicted of careless driving. There is a further aspect in respect of his driving over this period. He had committed a number of speeding and other offences resulting in his licence being suspended on 4 February 2000 by reason of the demerit points accumulated.

12 In addition, on 18 May 1999, he was convicted of being disorderly by creating a disturbance and giving a false name and address. These offences in May were possibly the result of the condition which developed after the accident. He said that he had commenced drinking to a much greater extent and became more aggressive. On one occasion he fought in public and on another occasion he had fought with a friend of his brother. He said, "Now I don't care about myself" and I assume the May offences arose by reason of this. The subsequent driving offences are of more concern. His Honour referred to these driving offences and said that although these matters cannot aggravate the sentence, "it does not seem to me that in terms of your driving that you have learned a great deal from this accident." One of the grounds of appeal claims that his Honour gave too much weight to the subsequent offence of careless riding of his motor cycle. This ground I consider is entirely without merit. The subsequent traffic offending was inconsistent with the plea in mitigation being submitted on the applicant's behalf and it was proper for his Honour to refer to it to the extent he did. The source of the offence of careless driving where he drove a motor cycle with its front wheel in the air, possibly, may have been more a symptom of aggression as no one else was in the vicinity. However, the repeated breaches which led to a suspension of licence by reason of an accumulation of demerit points is of particular concern and fully justified the comment his Honour made.

13 I shall, at this stage, make a general reference to penalties. The offence of dangerous driving causing death is very serious by reason of the loss of a life. It is recognised that the death has not been caused by an intentional act, but it is also recognised that it may have been caused by momentary inattention. For these reasons the penalties range from a fine or other non-custodial sentence to a term of immediate imprisonment, the maximum of which is 4 years. The approach to be adopted by the courts was referred to by Jackson CJ in Smith v The Queen [1976] WAR 97 at 107, this being a case heard shortly after the offence of dangerous driving causing death was introduced into the Traffic Act. His Honour referred to the fact that there are two broad categories of cases. The first is where the accident has arisen through momentary inattention or misjudgment, and secondly, those in which the accused has driven in a manner which has shown a selfish disregard for the safety of other road users or of his passengers, or with a degree of recklessness. It is clear that the case now being considered falls within the second category and there was present both a selfish disregard for the safety of the passengers, and a degree of recklessness. There could be no question that there must be an immediate custodial sentence. I would, however, regard the sentence as being one at the top of the range where there is no significant mitigatory factor. I say that for this reason. If it were higher, it would be well within the range of sentences for manslaughter. The offence of manslaughter involves similar concepts to the second category of offences of dangerous driving causing death namely a reckless disregard for life. The facts required to be proved are similar but the penalties are different. If a person is convicted of dangerous driving causing death instead of manslaughter, then it must follow that the convicted person is subject to a lesser range of penalties. The fact that the Crown accepted the plea of guilty to dangerous driving causing death means that it is accepted that the range of penalties must be on the lower scale. It is for this reason that I would see the sentence imposed as being at the upper level without any significant mitigatory factor reducing it. His Honour was very conscious of the mitigating factors and summed them up in the follow way: (AB144)

"In relation to this offence I need to take into account the fact that you have pleaded guilty. I also need to take into account the fact that you have shown remorse, and I also need to take into account your youth at the time of his offence, 18 years, the fact that you are now presently 20 years of age and that you have substantially good antecedents. Notwithstanding all of those matters the factors of personal and general deterrence loom large in relation to an offence of this nature."

14 The offence was as serious as it could have been but there are present two facts of significant mitigation. One was the fact that the applicant had just turned 18 years and in these circumstances, youth is always considered as a significant mitigatory factor when remorse is present. His Honour found that there was remorse and the evidence to which I have referred supports this. The sentence imposed has not given effect to these factors. For these reasons I consider leave should be granted and the appeal allowed. I would consider that having regard to the serious aspects of this particular offence, but taking into account the applicant's youth and his genuine sorrow and remorse, I would impose a sentence of 2 years imprisonment. The offence is extremely serious, but a sentence of imprisonment on a young man otherwise hard working and of good character is a very harsh penalty. There was the selfish disregard at the time he committed the offence, but this is one of the factors that requires the immediate term of imprisonment and prevents it from being dealt with in other ways. I would see the term of two years in these circumstances as being a deterrent sentence.

15 I would accordingly grant leave, allow the appeal and reduce the sentence to a term of 2 years imprisonment. The orders relating to parole, the suspension of his licence and the disqualification from driving will remain.

16 WALLWORK J: I agree with the reasons for judgment of Pidgeon J and to the orders proposed by his Honour.

17 WHEELER J: I am in agreement with the reasons to be published by Pidgeon J, and wish to make only a few comments of my own.

18 I wish to make it plain that the learned sentencing Judge was not in error in taking a very serious view of the offence. As Pidgeon J has pointed out, it was a case in which there was a reckless manner of driving over some distance so that, looking at the circumstances of the offence alone, it could be seen as in the upper range of dangerous driving, being significantly more than a momentary inattention or carelessness.

19 Where there has been such driving, and the death of a person has been caused, the immediate reaction of an ordinary member of the public, in my view, would be that a sentence of 2 years' imprisonment (as proposed by Pidgeon J) would not be adequate to the circumstances of the offence, notwithstanding that there were significant mitigating factors. However, a factor of primary importance in sentencing in respect of any

offence must be the statutory maximum imposed by Parliament in respect of that offence. In the case of dangerous driving causing death, the statutory maximum provided by the Road Traffic Act is one of 4 years' imprisonment, if the conviction is on indictment, or 18 months' imprisonment if the matter is dealt with summarily. That gives a sentencing Judge a very limited range within which to recognise what may be, as I have noted and as Pidgeon J has pointed out in more detail, a very wide range of driving behaviour, ranging from a single mistake to an inexcusable disregard for public safety.

20 The sentencing task in respect of dangerous driving causing death is not made easier by the existence of a number of other offences, all involving driving in a manner which puts the public at risk, and which carry a wide range of statutory penalties. The driving in this case, for example, if the driver had not caused death but had stolen the motor vehicle would have carried a statutory maximum penalty of 8 years' imprisonment and would have attracted a sentence of somewhere in the range of 4 to 6 years (see eg R v White [2000] WASCA 118, Colbung v R [1999] WASCA 138 and Bropho v R, unreported; CCA SCt of WA; Library No 940197; 14 April 1994. It is true that the offence of stealing a motor vehicle accompanied by reckless or dangerous driving generally involves calculated disregard for public safety, the authority of the police and public concern over the danger of such driving. Even accepting all that, the penalty does not immediately appear to bear a logical relationship to the penalty for an offence such as reckless driving (that is, wilfully driving in an inherently dangerous manner) which attracts for a first conviction a maximum sentence of 6 months. It would appear from a juxtaposition of the practices that it is possible for precisely the same manner of driving to be regarded as 16 times more serious if the vehicle being driven has been stolen, notwithstanding that the risk to the public may be identical.

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

22 For my own part, I would venture the view that the somewhat confusing variation in sentences for offences involving similar types of driving might be avoided were the scale of penalties for driving offences more closely related to the manner of driving, with circumstances such as the fact that the vehicle is stolen or that grievous bodily harm or death results being recognised as aggravating circumstances which would either further increase the penalty within the relevant range or which could lead to an additional penalty. However, while in my view that might be a more coherent sentencing structure, the duty of the court is to give effect to the statutory scheme which exists and to pay regard to the statutory penalty in each instance. Taking that approach, and having regard to the mitigating circumstances present in this case, particularly those of the applicant's youth, remorse, and plea of guilty (albeit somewhat late), it is my view that a sentence in excess of 2 years' imprisonment could not be justified in this case.

Parsons v The Queen [2000] WASCA 407

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Judgment (42 paragraphs)

Parsons v The Queen [2000] WASCA 407 (20 December 2000)

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