Court of Appeal (WA)|2016-04-21|Before: Lure P, Mazza JA, Corboy J

PETERSEN -v- THE STATE OF WESTERN AUSTRALIA [2016] WASCA 66 (21 April 2016)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : PETERSEN -v- THE STATE OF WESTERN AUSTRALIA [2016] WASCA 66

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law - Appeals against conviction and sentence - Failing to assist victim of road traffic incident and failing to report incident - Interpretation of s 54 Road Traffic Act 1974 (WA) - Interpretation of s 30(4) Criminal Appeals Act 2004 (WA) - Whether evidence of prior drink driving offences admissible - Whether defence of emergency available - Whether direction on section not charged caused a miscarriage - Whether sentence manifestly excessive - Whether sentence infringed totality principle

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

AK v The State of Western Australia [2008] HCA 8; (2008) 232 CLR 438

Barbaro v The Queen [2014] HCA 2; (2014) 253 CLR 58

Braysich v The Queen [2011] HCA 14; (2011) 243 CLR 434

Brown v The State of Western Australia [2011] WASCA 111; (2011) 207 A Crim R 533

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

Dair v The State of Western Australia [2008] WASCA 72; (2008) 36 WAR 413

Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321

Edmonds v The State of Western Australia [2013] WASCA 255

Fazari v The State of Western Australia [2012] WASCA 176

Filippou v The Queen [2015] HCA 29; (2015) 89 ALJR 776

Floyd v The State of Western [2013] WASCA 33

Harwood v The State of Western Australia [2016] WASCA 8

Hughes v The State of Western Australia [2015] WASCA 164

Knight v The Queen [1992] HCA 56; (1992) 175 CLR 495

MacKenzie v The Queen [1996] HCA 35; (1996) 190 CLR 348

McLaughlin v The State of Western Australia [2012] WASCA 204

Mehajer v The Queen [2014] NSWCCA 167

MJS v The State of Western Australia [2011] WASCA 112

Pollock v The Queen [2010] HCA 35; (2010) 242 CLR 233

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

Roffey v The State of Western Australia [2007] WASCA 246

Samuels v State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473

Staley v Lopes [2005] WASCA 75

Stokke v The State of Western Australia [2015] WASCA 131

Whitehorn v The Queen [1983] HCA 42; (1983) 152 CLR 657

Wilde v The Queen [1988] HCA 6; (1988) 164 CLR 365

Wilson v The State of Western Australia [2010] WASCA 82

1 McLURE P: This is an appeal against conviction and sentence. At around 6.50 pm on 5 October 2013, a Holden Rodeo vehicle being driven by the appellant along Chapman Valley Road towards the town of Geraldton struck two pedestrians, Horace Bynder and Christine Ryan. Both victims were later pronounced dead at the scene of the incident.

2 The appellant was convicted after trial of two counts of contravening s 54(2) and s 54(3)(a) of the Road Traffic Act 1974 (WA) (RTA) and one count of contravening s 56(2) of the RTA. Count 1 was relevantly in the following terms:

On 5 October 2013 ... a motor vehicle namely a Holden Rodeo utility ... driven by [the appellant] on a road, was involved in an incident occasioning bodily harm to [Mr Bynder] and that [the appellant] failed to ensure that [Mr Bynder] received all the necessary assistance, including medical aid, that was necessary and practicable in the circumstances

And that the incident occasioned death to [Mr Bynder].

3 Count 2 related to Ms Ryan and was in the same material terms as count 1. Count 3 was in terms that the appellant failed to report the incident forthwith to the officer in charge of a police station, contrary to s 56(2) of the RTA.

4 There was little dispute at trial as to the core facts. After the incident, the appellant stopped and parked his vehicle on the roadside verge approximately 60 m from where Mr Bynder was lying. Chapman Valley Road is a two-lane road. Mr Bynder was lying in the lane in which the appellant was travelling at the time of the incident. Ms Ryan was lying around 10 m behind Mr Bynder across the centre of the road and was therefore at risk from vehicles travelling in both directions.

5 Catherine Gaunt was driving towards town when she arrived at the incident scene. She drove around and past the victims lying on the road and parked behind the appellant's vehicle. The appellant was standing by his vehicle at the time. According to police records, Ms Gaunt telephoned police at 6.52 pm. While she was on the telephone, another man arrived at the incident scene.

6 Another witness, Stephanie Muller, was driving towards town and the incident scene when a person, accepted to be the appellant, flagged her down to stop, which she did. She asked the appellant whether he had called an ambulance and he replied no. Ms Muller then telephoned 000 and requested an ambulance. The start of that telephone call was logged at 6.51 pm. The call lasted approximately 13 minutes. Other people arrived at the incident scene while Ms Muller was on the telephone. At the beginning of the call, Ms Muller checked and felt that Ms Ryan had a pulse. She was aware that someone else (not the appellant) said that Mr Bynder did not have a pulse. The ambulance despatcher asked Ms Muller that CPR be started on both patients. That was done. At the end of the call, the ambulance despatcher advised that CPR should continue until ambulances arrived.

7 The first police officers at the incident scene, Sergeant Walkerden and Constable Arthurs, arrived at 7.01 pm. Sergeant Walkerden described the scene as chaos, with cars parked on both sides of the road, people trying to stop traffic, other people conducting first aid and others just looking on. Police do not make a call as to whether or not a person is deceased. That call is made by a qualified paramedic from St John Ambulance or a doctor and, until the call is made, police continue to ensure accident victims receive first aid. The police also took steps to stop cars from driving through the incident scene.

8 Ambulances arrived at the incident scene at around 7.22 pm. Ambulance officers at the scene declared that both victims were deceased.

9 The appellant left the incident scene prior to police arriving at 7.01 pm. Ms Gaunt, who also left the scene before police arrived, saw the appellant drive off. Mrs Noble, who lived adjacent to the accident site, arrived at the scene very shortly after hearing the incident. From her driveway, Mrs Noble saw the appellant drive away from the scene.

10 The appellant returned to the accident scene at 9.05 pm, some 2 ¼ hours after the incident, and told police he was the driver of the vehicle that struck the victims. He had consumed alcohol both before and after the accident. It was not possible to accurately assess the quantity of alcohol in the appellant's blood at the time of the incident because of the alcohol he consumed after the incident.

11 The appellant gave evidence in his defence at trial. The appellant had a functioning mobile telephone with him at the time of the incident. After parking his vehicle, the appellant got out and walked back to where the victims were lying on the road. He waved down the car being driven by Ms Muller. Ms Muller asked him whether he had called an ambulance and he said no. While Ms Muller was on the telephone, she checked the victims to see whether they had a pulse. The appellant heard that Ms Ryan had a pulse but Mr Bynder did not. However, the appellant did not know whether the victims were alive or dead or whether they could be saved. After Ms Muller had checked for pulses, the appellant returned to his car and drove from the incident scene. He did not know whether anyone else, apart from Ms Muller and Ms Gaunt, had arrived at the incident scene before he left. However, he knew that no family or friends of the victims were present and that police had not arrived by the time he left. The appellant did not tell anyone that he was leaving the incident scene. He did not assess the injuries sustained by the victims, did not call police and did not call an ambulance. He was, however, aware that others had contacted emergency services. Apart from causing Ms Muller to stop, the appellant did nothing himself to provide or ensure the victims received assistance.

12 The appellant gave evidence that, on becoming aware that the victims were indigenous:

I looked around and then freaked out, got - didn't know what to do, scared. Figured soon enough someone was going to come along that knows them, family or friends, and know that I did it. I just thought I'm going to be severely beaten up or worse. So I went back to my car (ts 325).

13 After the commencement of the trial, but before the prosecutor had opened the State's case, the appellant's counsel informed the court that a positive defence would be raised in regard to the appellant's state of mind at the time he left the incident scene. It appears that was understood by the prosecutor and the trial judge to be an indication that the appellant intended to rely on the defence of emergency in s 25 of the Criminal Code (WA) (the Code). As a result, the State renewed an application pursuant to s 31A of the Evidence Act 1906 (WA) to admit evidence relating to drink-driving offences committed by the appellant. There was evidence that on 17 May 2012 the appellant had been convicted of driving with a blood alcohol level in excess of 0.08 g per 100 ml of blood. In addition, the appellant had been charged with driving on 12 September 2013 with a blood alcohol content in excess of 0.05g per 100 ml of blood. Just prior to the date of the incident, the appellant had received a summons requiring him to appear in the Geraldton court on 10 October 2013 in relation to that charge. The appellant was subsequently convicted of the offence on his endorsed plea of guilty.

14 The trial judge allowed the State's application on the basis that the evidence was relevant to why the appellant left the incident scene when he did (ts 224 - 225). On completion of the evidence, the trial judge ruled that the defence of emergency should not be left to the jury (ts 390 - 391).

15 In addition to two grounds of appeal relied on by the appellant, the court raised a number of matters on which it sought submissions, oral and in writing, from the parties. The issues in the appeal are as follows:

(1) did the trial judge misdirect the jury as to the nature and elements of the offence the subject of counts 1 and 2;

(2) can there be an offence against s 54(2) of the RTA if the victim died immediately upon impact with the appellant's vehicle;

(3) did the trial judge err in refusing to leave to the jury the defence of emergency (the appellant's ground 2);

(4) was the evidence relating to the appellant's drink-driving offences admissible pursuant to s 31A of the Evidence Act (the appellant's ground 1);

(5) did the trial judge misdirect the jury on the use that could be made of the evidence relating to the drink-driving offences;

(6) if the trial judge erred on one or more of the above grounds, has the prosecution established that no substantial miscarriage of justice has occurred.

16 Section 30(3) of the Criminal Appeals Act 2004 (WA) (CAA) provides that the Court of Appeal must allow an appeal against a conviction if in its opinion:

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

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

(c) there was a miscarriage of justice.

17 Section 30(4) provides:

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

18 My understanding of the scope and operation of these provisions has been tested by the recent decision of the High Court in Filippou v The Queen [2015] HCA 29; (2015) 89 ALJR 776 which appears to beat a retreat from the principles stated in Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300. Weiss emphasised the need to look at the statutory language, in its historical context, rather than secondary sources or materials [31].

19 Filippou concerned s 6(1) of the Criminal Appeal Act 1912 (NSW) (the NSW Act) which is in materially the same terms as s 30(3) of the CAA. Three aspects of the majority reasons in Filippou are not, in my assessment, on all fours with previous High Court authority. First, in relation to the proviso, the majority in Filippou stated:

By 'substantial miscarriage of justice' what is meant is that the possibility cannot be excluded beyond reasonable doubt that the appellant has been denied a chance of acquittal which was fairly open to him or her or that there was some other departure from a trial according to law that warrants that description [15].

20 In support of the statement in that passage relating to the loss of a chance of acquittal fairly open, the majority cite Pollock v The Queen [2010] HCA 35; (2010) 242 CLR 233 [70]. This appears to be the pre-Weiss approach to the proviso. The joint judgment in Weiss states:

Many statements are to be found in the decided cases that describe the task presented by the proviso as being to decide whether conviction was 'inevitable'. Other cases ask whether the accused was deprived of a 'chance which was fairly open ... of being acquitted' or a 'real chance' of acquittal.

These expressions attempt to describe the operation of the statutory language in other words. They must not be taken as substitutes for that language. They are expressions which may mask the nature of the appellate court's task in considering the application of the proviso ([32] - [33]).

21 The High Court also said that the expressions quoted in this extract are liable to distract attention from the statutory task of an appellate court; that task is to be undertaken in the same way an appellate court decides whether the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence (Weiss [40], [41]).

22 The High Court in Weiss went on to hold that the proviso cannot apply unless the appellate court is positively persuaded that the evidence properly admitted (or which should have been admitted) at trial proved, beyond reasonable doubt, the accused's guilt of the offence on which the jury returned its verdict of guilty [44]. This is referred to as the 'outcome' aspect of the proviso and requires the appellate court to make its own independent assessment of the evidence. An appellate court cannot be positively persuaded of the accused's guilt if it is deprived of the capacity justly to assess the strength of the case against him or her.

23 However, an appellate court's persuasion as to guilt is a necessary, but not always sufficient, condition of the exercise of the proviso. There are situations where, even though an appellate court is satisfied beyond reasonable doubt of the appellant's guilt of the offence on which the jury returned its verdict, the proviso cannot be invoked. Examples in this category include where there has been a significant denial of procedural fairness at trial, or a serious breach of the presuppositions of a trial, or a failure which departs from the essential requirements of a fair trial. This 'process' aspect is in the territory canvassed by the High Court in Wilde v The Queen [1988] HCA 6; (1988) 164 CLR 365, 373. See also, Hughes v The State of Western Australia [2015] WASCA 164 [60] - [68].

24 The second aspect of the majority reasons in Filippou concerns the miscarriage of justice ground (referred to in Filippou as the 'third limb' [9]). The majority said (at [14]) that this ground covers 'cases where, by reason of irregularity or otherwise, an accused has not received a trial according to law or has not received a fair trial' citing Weiss at [45] in support. However, in that paragraph the court in Weiss is referring to the process aspect in which the proviso does not apply even though the appellate court is persuaded that the evidence properly admitted at trial proved, beyond reasonable doubt, the appellant's guilt of the offence on which the jury returned its verdict of guilty. That is, the majority in Weiss were not addressing the miscarriage of justice ground of appeal but the process aspect of the proviso. Moreover, the miscarriage of justice ground is not confined to situations in which there has been a departure from a trial according to law or an unfair trial. For example, cases of fresh and new evidence fall within this ground. The first and second limbs are particular examples of the occurrence of a miscarriage of justice: Whitehorn v The Queen [1983] HCA 42; (1983) 152 CLR 657, 685. The third limb is the 'dragnet' or 'sweeper' ground of appeal.

25 The third aspect of the majority judgment in Filippou relates to the first limb of s 6(1) of the NSW Act, equivalent to s 30(3)(a) of the CAA. The majority state (at [12]) that a finding of guilt is not to be disturbed under the first limb unless 'there is no or insufficient evidence to support the finding, or the finding is otherwise unreasonable, or the evidence was all the one way, or the judge has so misdirected himself or herself on a matter of law as to result in a miscarriage of justice'. The footnoted cases on which the majority rely for this proposition are Whitehorn (at (686)); Chamberlain v The Queen (No 2) [1984] HCA 7; (1984) 153 CLR 521, 532; Knight v The Queen [1992] HCA 56; [1992] HCA 56; (1992) 175 CLR 495, 502 - 503; M v The Queen [1994] HCA 63; (1994) 181 CLR 487, 493. Those cases do not support the entirety of the proposition. As to the reference to a misdirection on a matter of law, it is difficult to see how, as a matter of construction of the statutory text, such an error will be captured by the first limb, rather than the second or third limb of s 6(1) of the NSW Act or s 30(3) of the CAA.

26 The focus of the first limb is on the relationship between the evidence adduced at trial and the verdict of guilty. It applies in the absence of any express error, irregularity or other departure from a trial according to law: Chamberlain v The Queen (No 2) (531). Its closest analogy is to the implied errors in sentencing that enliven an appellate court's jurisdiction to intervene. In particular, the first limb applies if on the evidence at trial it was not open, as a matter of fact, to be satisfied to the criminal standard of an accused's guilt. The court must ask itself the question whether it thinks that upon the whole of the evidence it was open to the jury (or other trier of fact) to be satisfied beyond reasonable doubt that the accused was guilty: M v The Queen (492 - 494). As the majority made plain in M v The Queen (at 493), the scope of the first limb is more confined than the broader notion of 'unsafe and unsatisfactory'. The first limb also applies to factually inconsistent verdicts by the same jury. Verdicts are inconsistent if they cannot stand together, meaning that no reasonable jury who had applied their minds properly to the evidence in the case could have arrived at the conclusion: MacKenzie v The Queen (1996) 190 CLR 348, 366. If the first limb is upheld, it necessarily follows that there has been a substantial miscarriage of justice: Weiss [44]. That is not so in relation to the second and third limbs in CAA, s 30(3)(b) and (c).

27 There being no obvious intention in Filippou to depart from existing authority, including Weiss, I propose to apply my understanding of the law set out above.

28 I also note the majority statement in Filippou that the second limb (a wrong decision on a question of law by the trial judge) applies to all misdirections of substantive and adjectival law [13]. I infer the majority intended that to be so even in the absence of a decision by the trial judge on a contested matter of law. If so, that is a departure from this court's approach to the second limb. However, nothing turns on the difference in approach.

29 Section 54(1), (2), (3) and (6) of the RTA relevantly provide:

(1) If a vehicle driven by a person (the driver) is involved in an incident occasioning bodily harm to another person, the driver must stop immediately after the occurrence of the incident and for as long as is necessary to comply with subsections (2) and (6).

(2) 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.

(3) A person who contravenes subsection (1) or (2) commits a crime.

Penalty: imprisonment for -

(a) 20 years, if the incident occasioned death.

(6) 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, if required to do so by a victim, a representative of a victim, or a police officer, give the driver's name and address and, if known to the driver, the name and address of a responsible person for the vehicle.

30 Starting with s 54(1), the term 'stop' in its context means stop and remain at the incident site. The length of time the driver must remain at the incident site is determined by the length of time necessary to comply with the driver's obligations in both s 54(2) and s 54(6). The jury had to determine what was necessary for the appellant to do in order to comply with his obligations in s 54(2) in order to determine how long he should have remained at the incident site. Accordingly, the jury could not be satisfied of a contravention of s 54(1) without first determining, in effect, whether the driver had complied with his obligations in s 54(2). As a practical matter, in the circumstances of this case there cannot be a contravention of s 54(1) without a breach of s 54(2).

31 The assistance that is necessary and practicable in the circumstances is an objective question, and is informed by what a reasonable person in the position of the driver knew or ought to have known at the time. In circumstances where there is uncertainty as to whether a victim is dead or alive, the objectively necessary course is to proceed on the basis that the victim is seriously injured.

32 The central obligation in s 54(2) is that 'the driver must ensure that each victim receives all the assistance, including medical aid, that is necessary and practicable in the circumstances'. The driver can satisfy that obligation by personally providing the assistance that is necessary and practicable in the circumstances (relevant assistance) or by satisfying himself that other people at the incident site are providing, and will continue to provide, all relevant assistance. In circumstances where the driver is relying on the actions of others who are volunteering their services (that is, persons who are not acting in an official emergency services capacity), he must remain at the incident site to provide or ensure cover in the event of gaps or omissions in the assistance being provided.

33 In this case, the appellant did not request, and the prosecutor did not provide, particulars of the appellant's omissions that constituted the alleged contravention of s 54(2). No complaint is made of the lack of particulars. I infer that is because on the unchallenged facts, and subject to the availability of the emergency defence, the breach was obvious.

The trial judge's direction on counts 1 and 2

34 The trial judge's directions to the jury in his summing up on counts 1 and 2 are detailed in the reasons of Corboy J. It is unnecessary to repeat the passages here. The trial judge erroneously directed the jury that the offence the subject of counts 1 and 2 was a failure to stop contrary to s 54(1) of the RTA (ts 417).

35 However, the fact that there must be a contravention of s 54(2) to give rise to a contravention of s 54(1) is captured in the summing up. The trial judge said:

When the accused left the scene, as he did, had he then ensured that each victim was receiving or had received all the assistance, including medical aid, that was necessary and practicable in the circumstances. I remind you that the obligation is to ensure that each victim receives all necessary assistance, including medical aid, not might receive. That is say, one is to ensure that the person receives that assistance.

The State's case is that the accused left the moment the police were being called, before CPR had been commenced, and without making any attempt to ascertain the wellbeing of the pedestrians struck by the car that was [driven] by him (ts 419).

36 Later the trial judge directed the jury as follows:

The task for you in relation to counts 1 and 2 clearly focusses on the circumstances and the accused's conduct immediately following the incident, that is to say, did he stop and remain at the scene, when viewed objectively, for so long as is necessary to ensure that each victim receives all the assistance, including medical aid, that is necessary and practicable in the circumstances? You view that objectively and you bring to bear your experience as members of the community and as other road users as to what is a reasonable and proper response in those circumstances as you find them to be. It is an objective standard, not a subjective standard (ts 420). (emphasis added)

37 There was clearly a misdirection in identifying the wrong offence. The central question is whether the State has discharged the burden of establishing that no substantial miscarriage of justice has occurred.

38 The outcome on the evidence is clear. The appellant's evidence itself establishes beyond reasonable doubt that he was guilty of the s 54(2)/s 54(3)(a) offences. The only relevant issue is whether there is a process error of such a nature as to prevent the application of the proviso. In the unusual circumstances of this case, the answer is no because of the overlap of s 54(1) and s 54(2), the latter being a subset of the former, and the trial judge's directions which clearly reflected that overlap. Unlike the circumstances in Mehajer v The Queen [2014] NSWCCA 167, the jury in this case had to determine the appellant's guilt or innocence of the offences with which he was charged. The appellant pleaded not guilty to contravening s 54(2)/s 54(3)(a) (ts 31 - 32), was found guilty of those offences (ts 428 - 429) and the certificate of final outcome issued under the Criminal Procedure Rules 2005 (WA), r 49 is for contraventions of s 54(2)/s 54(3)(a).

39 There has been no substantial miscarriage of justice flowing from the trial judge's error. In the circumstances, it is unnecessary to determine the proper construction of s 30(5)(c) of the CAA.

40 The appellant contends the trial judge erred in refusing to leave to the jury the defence of emergency under s 25 of the Code.

41 A person is not criminally responsible for an act done, or an omission made, in an emergency under s 25(3). Section 25(3) provides:

A person does an act or makes an omission in an emergency if -

(a) the person believes -

(i) circumstances of sudden or extraordinary emergency exist; and

(ii) doing the act or making the omission is a necessary response to the emergency; and

(b) the act or omission is a reasonable response to the emergency in the circumstances as the person believes them to be; and

(c) and there are reasonable grounds for those beliefs.

42 The appellant carried the evidential burden of raising the defence of emergency. In that regard, the test is whether there is evidence which, taken at its highest in favour of the appellant, could lead a reasonable jury, properly instructed, to have a reasonable doubt that each of the elements of the defence had been negatived: Braysich v The Queen [2011] HCA 14; (2011) 243 CLR 434 [36]; Floyd v The State of Western [2013] WASCA 33 [21].

43 The defence of emergency, like that of duress, exists to meet cases where the circumstances overwhelmingly impel disobedience to the law. The corollary is that the law cannot leave people free to choose for themselves which laws they will obey, or to construct and apply their own set of values inconsistent with those within the law: Floyd [25].

44 The only evidence relating to the defence of emergency was that of the appellant explaining his subjective reasons for leaving the incident scene. The appellant left the scene before the arrival of any relatives or friends of the victims. The appellant did not know the victims or anything about their circumstances, relatives or friends. A reasonable expectation would be that the appellant would be protected by police when they arrived. On the evidence as a whole, it was not open to the jury to find, as a reasonable possibility, that when the appellant left the accident site:

(a) there were reasonable grounds to believe that circumstances of sudden or extraordinary emergency existed;

(b) even if there was evidence capable of constituting a relevant emergency, there were reasonable grounds for believing that leaving the scene was a necessary response to the emergency.

45 The appellant did not satisfy the evidentiary burden. Accordingly, the trial judge did not err.

46 I agree with Corboy J for the reasons he gives that the trial judge did not err in admitting the evidence relating to the appellant's drink-driving offences. However, because of the content of the trial judge's direction it is necessary to determine whether, absent an emergency defence, the appellant's evidence as to his motivation for leaving the incident scene and his explanation for his delay in reporting the incident to police was relevant and admissible.

47 The appellant's defence to the s 56(2) offence was that the delay in informing police was due to his state of distress and shock. He claimed to have reported the matter to police as soon as was practicable. That is not the statutory obligation. The relevant obligation, which is in s 56(1), is to report the incident 'forthwith'. Under s 56(5) it is a defence to a charge under s 56(2) for the accused to prove that -

(a) the accused could not comply with a requirement in the relevant provision because of an injury suffered by the accused in the incident; or

(b) a police officer attended at the scene of the incident and took the necessary particulars of the incident.

48 Neither defence was available on the facts in this case. There was no medical evidence that the appellant had suffered an 'injury', regardless of the outer scope of the meaning of that term for the purposes of s 56(5)(a). Distress and shock do not fall within the natural and ordinary meaning of the term. Indeed, distress and shock will invariably be the consequence of the circumstances that enliven the obligation in s 54(1).

49 In its statutory context, 'forthwith' means immediately, without delay, promptly. Of course, compliance with the requirement will depend on the particular factual circumstances in which the driver finds himself (such as, for example, if an incident occurs in an isolated location without mobile phone coverage). The appellant did not discharge the burden of proving an 'injury' for the purposes of s 56(5) or (assuming without deciding that they apply) the evidentiary burden of any defence under the Code.

50 However, it can be accepted that the appellant's motivation for leaving the incident scene and his state of distress and shock at that time was relevant and admissible evidence of the circumstances of the relevant offences. They are, in that sense, a fact in issue. Moreover, the evidence was also relevant to the extent of the appellant's criminality and thus to the sentencing exercise. Prima facie, it would be an odd result if the State was prevented from negativing the appellant's relevant and admissible evidence on these matters by reliance on the drink-driving evidence.

51 The trial judge directed the jury (as is the case) that the appellant's evidence of the reasons for his hasty retreat from the incident scene and his long delay in reporting the incident to police was not relevant to the proof of any element of the offences. However, the trial judge regarded the drink-driving evidence as relevant, directing the jury as follows:

The accused says that he didn't stay and render assistance because of the fact that he was distressed by the incident. The State says that his motive for leaving, to remain away for over 2 hours, was his fear of the consequences and the fact that he had been drinking, that he left the scene and drank the alcohol before returning after a considerable delay. It's in this context that you have regard to the prior driving history, and not otherwise. It's a fact that you consider as part of the overall circumstances of the evidence (ts 423).

52 The drink-driving evidence was relevant, not as propensity evidence, but for the sole purpose of rebutting the appellant's evidence as to why he failed to comply with his statutory obligations. The evidence was admissible at common law, which is not excluded by s 31A of the Evidence Act: MJS v The State of Western Australia [2011] WASCA 112 [3]. In any event, even if the evidence was inadmissible, it did not occasion a substantial miscarriage of justice. On the appellant's own evidence, he is guilty of all the offences with which he was charged.

53 For these reasons, the conviction appeal must be dismissed.

54 On 19 January 2015, Birmingham DCJ sentenced the appellant to 2 years 6 months imprisonment for each offence against s 54(2) of the RTA and 2 years imprisonment for the offence against s 56(2) of the RTA. The sentencing judge imposed a total effective sentence of 4 years 6 months imprisonment, with disqualification of the appellant's driver's licence for 4 years from his release from prison.

55 The appellant relies on five grounds of appeal, only one of which (ground 5) has been given leave. The grounds claim that:

(1) it was not reasonably open to find the criminality involved in the s 54(2) offences was 'most serious';

(2) it was not reasonably open to attribute to the appellant responsibility for prolonging the grieving process of the deceased's families because of his actions on the night;

(3) the sentences for counts 1 and 2 are manifestly excessive;

(4) the sentence for count 3 is manifestly excessive;

(5) the total effective sentence infringes the totality principle.

56 The certificate of final outcome is for a contravention of s 54(2) of the RTA, not s 54(1). Moreover, the sentencing judge (also the trial judge) understood that he was sentencing the appellant on counts 1 and 2 for contravening s 54(2).

57 The appellant was aged 27 at the time of the offences. He had not previously been sentenced to a term of imprisonment.

58 The findings made by the sentencing judge are as follows. The appellant knew on the date of the incident that he would shortly be losing his driver's licence as a result of his drink-driving on 12 September 2013. When the incident occurred, the appellant knew, or at least feared, that he was driving in excess of the legal limit in respect of alcohol and that might place him in difficult circumstances. The sentencing judge did not accept the appellant's evidence as to his motivation for leaving the incident scene. He found that the appellant left the incident scene out of fear for his own well-being in relation to the legal consequences of his conduct in driving a motor vehicle whilst affected by alcohol (ts 478). As a result of consuming more alcohol after the incident, police could not reliably assess the quantity of alcohol in the appellant's blood at the time of the incident. The sentencing judge was satisfied that the purpose of the appellant consuming alcohol after the incident was to prevent police from obtaining admissible evidence as to his blood alcohol level at the time of the incident (ts 482).

59 The sentencing judge also found that the appellant's failure to remain at the scene and to remove his vehicle frustrated the investigation. He continued:

I don't attribute to you the responsibility for causing their death, but I do attribute to you the responsibility for prolonging [the families'] grieving process by ... your actions on the night (ts 480).

60 The sentencing judge explained his reasons for that conclusion by reference to the content of a victim impact statement provided by Mr Bynder's father detailing the adverse effect on him of the appellant's conduct after the incident. Similar sentiments were expressed by other relatives of the deceased.

61 The sentencing judge concluded that the appellant had a sense of entitlement with regard to the use of a motor vehicle after drinking alcohol and a propensity to minimise responsibility for his drink-driving offences. He accepted the assessment of a psychologist that the appellant's actions displayed a significant denial of responsibility, justification and minimalisation of his conduct (ts 482). The sentencing judge found that the appellant had minimal insight into the offences for which he was being sentenced and his problematic use for alcohol. As a result, significant weight was given to the need for personal deterrence (ts 483). General deterrence was also a weighty consideration. In addition, the appellant had little insight into the impact of his offending on the families of the deceased and there was no clear expression of remorse or regret (ts 484).

62 After imposing the sentences for counts 1 and 2 the sentencing judge continued:

In relation to count 3, failure to report the matter forthwith, in my view this is a most serious breach of your obligation and your failure to report the matter forthwith and your conduct immediately following the incident seriously impacted upon the capacity to properly investigate the offending or the incident that night, and the matters generally arising from that incident ... (ts 485 - 486).

63 After referring to both limbs of the totality principle, the sentencing judge concluded that the criminality involved in the case was most serious and warranted a total effective term of 4 years and 6 months (ts 486). The appellant was made eligible for parole.

64 Before going to the grounds of appeal, it is convenient to examine the statutory framework. The maximum penalty for the s 54(2) offences committed by the appellant is 20 years imprisonment: s 54(3)(a). The maximum penalty for the 56(2) offence is 10 years imprisonment. These maximum penalties were included by the Road Traffic Amendment Act (No 2) 2007 (WA) (the RTA Amendment Act). As the explanatory memorandum for the bill that became the RTA Amendment Act explains, the then existing penalties were very low by comparison with the penalties that would apply if the person were charged with, and convicted of, dangerous driving occasioning death or grievous bodily harm or bodily harm, as a consequence of an incident. The RTA Amendment Act very significantly increased the penalties for offences of the type committed by the appellant. The explanatory memorandum states:

These amendments are intended to act as a deterrent to a person who might otherwise elect to flee the scene of an accident in order to escape the possible conviction of a dangerous driving charge and the imposition of the associated penalty.

65 Section 59 of the RTA deals with dangerous driving causing death or grievous bodily harm. It relevantly provides:

(1) If a motor vehicle driven by a person (the driver) is involved in an incident occasioning the death of, or grievous bodily harm to, another person and the driver was, at the time of the incident, driving the motor vehicle -

(a) while under the influence of alcohol ... to such an extent as to be incapable of having proper control of the vehicle;

the driver commits a crime.

66 The maximum penalty for the offence is 20 years imprisonment (s 59(3)(a)).

67 Based on the sentencing judge's findings, particularly those relating to the appellant's reasons for leaving the incident scene and consuming alcohol thereafter, there is no arguable claim that the sentencing judge erred in characterising the s 54(2) offending as serious.

68 As part of this ground, the appellant contends that it was not open to the sentencing judge to find, beyond reasonable doubt, that his intention in consuming alcohol after the incident was to prevent police obtaining admissible evidence as to his blood alcohol level at the time of the incident. The sentencing judge based his finding on the fact the appellant (1) knew or feared that at the time of the incident he was driving in excess of the alcohol limit and that it might place him in difficult circumstances; (2) travelled to his grandfather's residence by a circuitous route and arranged for his vehicle to be placed behind the house; (3) went into the house and spoke to his grandfather, who gave him a cup of coffee, and then remained at the house for over two hours and consumed more alcohol. Further, the sentencing judge had the advantage of hearing all the evidence at trial, including that given by the appellant. This court is not in a position to conclude that the sentencing judge's finding was not open. Ground 1 does not have a reasonable prospect of succeeding. Leave to appeal should be refused.

69 As to ground 2, the appellant contends it was not open to the sentencing judge to attribute to the appellant responsibility for prolonging the grieving process of the deceaseds' families. The sentencing judge accepted the evidence in the victim impact statement of Mr Bynder's father and of other relatives of the deceased who expressed the same sentiments. The relatives reaction was objectively reasonable. This ground of appeal has no reasonable prospect of succeeding. Leave to appeal must be refused.

70 This court can only intervene if the sentencing judge made an express or implied material error of fact or law. The claim of manifest excess relies on the implication of error. The sentence must be shown to be unreasonable or plainly unjust. In determining whether an implied error has been made, regard is had to the maximum sentence for the offence, the standards of sentencing customarily observed, the place which the criminal conduct occupies on the scale of seriousness and the personal circumstances of the offender.

71 There are a limited number of comparable cases. The appellant relies on Fazari v The State of Western Australia [2012] WASCA 176, Abeyakoon v Brown [2011] WASCA 63 and Staley v Lopes [2005] WASCA 75. The last case was decided under the former statutory regime and is not relevantly comparable. A small number of cases does not establish a customary range. In any event, they do not support a claim that the sentences imposed on the appellant are manifestly excessive. In this case there were no mitigating factors of any significance and the aggravating factors place the appellant's conduct in the serious category. The sentencing judge's positive findings as to the appellant's motivation in leaving the scene and consuming more alcohol are significantly aggravating. I am satisfied these grounds do not have a reasonable prospect of succeeding. Accordingly, leave must be refused.

72 The first limb of the totality principle requires that the total effective sentence bear a proper relationship to the overall criminality involved in all the offences, viewed in their entirety and having regard to the circumstances of the case, including those referable to the offender personally. The second limb of that principle is that the court should not impose a crushing sentence. Crushing in this context connotes the destruction of any reasonable expectation of a useful life after release: Roffey v The State of Western Australia [2007] WASCA 246 [24] - [25].

73 The total effective sentence is towards the upper end of the sentencing range but not, in my view, in breach of the totality principle. All the findings made by the sentencing judge were adverse to the appellant. His limited insight, responsibility and remorse justified the sentencing judge's assessment of the need for personal deterrence. There were no significant mitigating factors. Importantly, the legislature has underscored the need for strong deterrent sentences in order to prevent offenders taking active steps to avoid prosecution for offences in which they are held responsible for the death or grievous bodily harm to victims of motor vehicle accidents. Accordingly, I would dismiss ground 5.

74 I would refuse leave to appeal on grounds 1, 2, 3 and 4 and dismiss ground 5. Accordingly, the sentence appeal must be dismissed.

75 MAZZA JA: All of the relevant background to these appeals has been set out in the reasons of McLure P and Corboy J. For the reasons given by Corboy J, I agree that, in the appeal against conviction, leave to appeal on proposed ground 2 should be refused and that the appeal should be dismissed.

76 I wish to add observations of my own with respect to the nature of the assistance a driver is duty bound to ensure a victim receives, pursuant to s 54(2) of the Road Traffic Act.

77 First, the duty to ensure a victim receives all the assistance that is necessary and practicable in the circumstances is owed to each victim. Thus, in cases where there is more than one victim, what is necessary or practicable in the circumstances may vary according to a victim's condition.

78 Second, the precise nature of any assistance a driver must ensure each victim receives is undefined, save that it includes (but is not

restricted to) medical aid. The assistance a driver must ensure each victim receives will depend upon the circumstances in each case and what is necessary and practicable, having regard to those circumstances. So, for example, a driver may be obliged to ensure that an immobile victim on a roadway is not inadvertently injured by other road users.

79 With respect to the appeal against sentence, I agree, for the reasons given by both McLure P and Corboy J, that leave to appeal should be refused on proposed grounds 1 to 4 and the appeal be dismissed. I agree with their Honours that the total effective sentence is high, but I have not been persuaded that his Honour erred, either in the imposition of the individual sentences or the total effective sentence.

80 The appellant struck two pedestrians, Mr Bynder and Ms Ryan, while driving on Chapman Valley Road, Waggrakine. The incident occurred at approximately 6.50 pm on 5 October 2013.

81 The appellant immediately stopped his vehicle and remained at the scene of the incident for a short time. However, he left after other people arrived at the scene.

82 The appellant did not assess the injuries sustained by Mr Bynder and Ms Ryan nor did he call emergency services. However, he was aware before he left the scene that a call to emergency services had been made; that someone had felt for a pulse for Mr Bynder and Ms Ryan and that a pulse had been obtained for Ms Ryan but not for Mr Bynder. CPR was subsequently administered but Mr Bynder and Ms Ryan died at the scene of the accident.

83 The appellant drove from the scene to his grandfather's house. He drank two stubbies of beer and then returned to the scene at about 9.05 pm.

84 The appellant was convicted after a trial before Birmingham DCJ and a jury of two counts of failing to ensure that the victim of a road traffic incident received all the assistance that was necessary and practicable, contrary to s 54(2) of the Road Traffic Act 1974 (WA) (RTA) (count 1 of the indictment concerned Mr Bynder; count 2, Ms Ryan). The appellant was also convicted of failing to report a road traffic incident, contrary to s 56(1) RTA. He was sentenced to a total effective sentence of

4 years 6 months' imprisonment to be served immediately. He was also disqualified from holding a driver's licence for 4 years.

85 The appellant appeals against his conviction and sentence. As to his conviction, the appellant alleged that the trial judge erred by ruling that:

(a) evidence that the appellant had been previously convicted of a drink driving offence and that he had been charged with a similar offence shortly prior to the incident was admissible under s 31A of the Evidence Act 1906 (WA) as propensity evidence (ground 1);

(b) the jury was not required to consider the defence of emergency (proposed ground 2).

(a) it had not been reasonably open to the sentencing judge to:

(i) find that the criminality involved in the offences committed against s 54(2) RTA was 'most serious' (proposed ground 1);

(ii) attribute to the appellant responsibility for prolonging the grieving process of the families of the deceased because of the appellant's actions on the night of the incident (proposed ground 2);

(b) the sentence imposed for each offence was manifestly excessive (proposed grounds 3 and 4);

87 The appellant was granted leave to appeal from his conviction on ground 1 and from his sentence on ground 5. The appellant's application for leave to appeal on the remaining grounds was referred to the hearing of the appeal (order made on 22 March 2015).

88 The trial judge directed the jury on the elements of the offence created by s 54(1) RTA, rather than s 54(2), for counts 1 and 2. That was not a matter raised by the appellant. However, the court raised whether a substantial miscarriage of justice had occurred as a result of the trial judge's misdirection. The court also raised whether:

(a) the appellant could be convicted of the offence alleged in count 1 if Mr Bynder had died immediately after being struck by the appellant's vehicle;

(b) whether the trial judge had misdirected the jury on the use that could be made of the evidence admitted under s 31A of the Evidence Act and if so, whether a substantial miscarriage of justice had occurred.

89 I have concluded for the reasons that follow that:

(a) the trial judge did not err by ruling that the defence of emergency should not be left with the jury;

(b) the trial judge did not err by ruling that evidence of the appellant's drink driving record was admissible;

(c) it is not necessary to determine whether his Honour erred in directing the jury on the use that could be made of the evidence concerning the appellant's drink driving record as any error could not have resulted in a substantial miscarriage of justice;

(d) the trial judge's misdirection on counts 1 and 2 did not cause a substantial miscarriage of justice having regard to the elements of the offences created by s 54(1) and s 54(2) RTA and the trial judge's directions on what the jury was required to decide in determining whether the prosecution had proved the charges alleged in the indictment;

(e) the evidence did not establish that Mr Bynder had died by the time that the appellant left the incident scene and the prosecution proved beyond a reasonable doubt that the appellant did not ensure that Mr Bynder received all the assistance that was reasonable and practicable in the circumstances;

(f) leave to appeal on proposed grounds 1 to 4 of the appeal against sentence should be refused and the appeal should be dismissed.

90 Ms Gaunt was driving on Chapman Valley Road at the time of the incident. She saw two bodies lying on the road as she approached the incident scene. The appellant's vehicle was parked on the verge. She stopped and spoke to the appellant, who appeared to be in a state of shock: he was '[j]ust walking and - yes - upset' (ts 162).

91 Ms Gaunt telephoned the police. She saw the appellant drive away from the scene while she was on the phone. Other people arrived and she was aware that someone had taken a pulse and that somebody had enquired about CPR. However, she was unable to say whether that had occurred before or after the appellant had driven away.

92 Ms Muller was also driving on Chapman Valley Road at the time of the incident. She saw two 'shadows' on the road and then the appellant 'jumped out' at her and flagged her down to stop. The appellant was the only other person at the scene.

93 Ms Muller got out of her car and asked the appellant what had happened. She did not hear his reply, but she then asked him whether he had called an ambulance. He replied, 'no', and Ms Muller called emergency services and requested an ambulance.

94 Ms Muller felt for and was able to obtain a pulse for Ms Ryan. She was aware that someone else had felt for but could not obtain a pulse for Mr Bynder. CPR was commenced on Mr Bynder and Ms Ryan.

95 Ms Muller counted how many people were at the scene while she was speaking to the emergency services operator. The appellant was not among those present. CPR continued on Mr Bynder and Ms Ryan until ambulances arrived.

96 Mr and Mrs Noble lived in Chapman Valley Road, close to where the incident occurred. They heard a noise from the incident and went to the scene. Mrs Noble saw the appellant at the scene. He was speaking to a woman. He then left in a vehicle. Mr Noble endeavoured to locate a pulse for Mr Bynder and Ms Ryan. He was unable to obtain a pulse for Mr Bynder, but he felt a faint pulse for Ms Ryan. He then assisted in controlling traffic in the vicinity until the police and ambulances arrived. Others at the scene administered CPR to Mr Bynder and Ms Ryan.

97 Sergeant Walkerden attended the incident scene in response to Ms Gaunt's telephone call (which was timed at 6.52 pm). He and his partner, Constable Arthurs, arrived at the scene at 7.01 pm. First aid was being administered by people at the scene when they arrived. Sergeant Walkerden and others continued CPR on Mr Bynder until the ambulances arrived; Constable Arthurs continued CPR on Ms Ryan. Sergeant Walkerden did not know whether Mr Bynder was alive while he was performing CPR.

98 Sergeant Walkerden observed a vehicle arrive at the scene at approximately 9.05 pm. The appellant and his grandfather were in the vehicle. The appellant's grandfather informed Sergeant Walkerden that the appellant had been the driver of the vehicle involved in the incident.

99 Constable Parks also attended the incident scene. The appellant submitted a preliminary sample of his breath and advised Constable Parks that he had consumed alcohol at his grandfather's house after the incident. Constable Parks and his partner, Constable McCosh, took the appellant to the house. They were shown six empty stubbies of beer on a table located in a shed. The appellant admitted that he had drunk two stubbies of beer after the incident. He also admitted that he had drunk four stubbies before the incident.

100 Senior Constable Burrows also attended the scene. He arrived at approximately 8.10 pm. Paramedics had certified Mr Bynder and Ms Ryan as dead by the time that he had arrived at the scene.

101 Senior Constable Mawdesley gave evidence that '000' calls requesting an ambulance attend the scene were received at 6.51 pm and 7.00 pm. Ambulances were dispatched at 7.17 pm and 7.18 pm and arrived at the scene five minutes later. They cleared the scene at 8.02 pm.

102 The appellant was taken from his grandfather's house to the Geraldton Police Station. He submitted a further sample of his breath and participated in an electronically recorded interview. It was not possible to accurately estimate the quantity of alcohol in the appellant's blood at the time of the incident because of the presence of the alcohol that had been subsequently consumed.

103 The appellant stated in his recorded interview:

I, I braked. There was no time to brake when they ran out in front. As soon as I hit them I braked instantly. I don't know if the brakes locked up. I don't know. I just pulled up on the left and ran back down the road with me hands in the air tryin' to stop other cars, 'cause they were in the middle of the road. Well, on, still on the, on the road, two people.

SCON BURROUGHS: Did you get to check either of them for pulses, signs of life?

[THE APPELLANT]: [indistinct] other lady, I believe it was the one in the little red car. I think that was her who pulled up. She was checking. And she said the, the one closest towards Kultown Drive had a slight pulse but the one closest to town didn't. And then more cars just kept comin', and I just freaked out. I just left, running scared. I didn't know what to do.

SCON BURROUGHS: Did you make any attempt to ring emergency services, triple oh?

[THE APPELLANT]: I was in too much shock. I didn't, I didn't think at all. I couldn't think (BB 134).

SGT KEELS: Did you render any assistance to the people that had been hit by you?

[THE APPELLANT]: I got out of my vehicle and ran up to assess them.

SGT KEELS: Yeah.

[THE APPELLANT]: As I was running up I stopped the other lady. I believe she got out and she was checking them, ringing the police or ringing someone, and she said this one's dead and this one's just alive. The one closes to Kultown was apparently just alive.

...

SCON BURROUGHS: And did you render that person that you were told was still alive any assistance?

[THE APPELLANT]: I didn't touch anyone (BB 141 - 142).

(a) The appellant had been convicted on 17 May 2012 of driving with a blood alcohol level in excess of 0.08 g per 100 ml of blood.

(b) The appellant had been charged on 12 September 2013 with driving with a blood alcohol content in excess of 0.05 g per 100 ml of blood. A court hearing notice had been sent to the appellant on 30 September 2013 requiring him to appear in the Geraldton Magistrates Court on 10 October 2013. The appellant was convicted of the offence on his endorsed plea of guilty.

106 This was the evidence that the trial judge ruled was admissible under s 31A of the Evidence Act as propensity evidence (the s 31A Evidence).

PETERSEN -v- THE STATE OF WESTERN AUSTRALIA [2016] WASCA 66 (21 April 2016)

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Judgment (332 paragraphs)

PETERSEN -v- THE STATE OF WESTERN AUSTRALIA [2016] WASCA 66 (21 April 2016)

Legislation Cited (4)

Cases Cited (21)