R v White [2000] WASCA 118

R v Stebbings (1990) 4 WAR 538

R v S (No 2) (A Child) (1992) 7 WAR 434

McKenna v The Queen (1992) 7 WAR 455

R v Punch (1993) 67 A Crim R 46

R v Jurisic [1998] NSWSC 423; (1998) 101 A Crim R 259

R v Tait (1979) 46 FLR 386

R v De Havilland (1983) Crim LR 489

1 PIDGEON J: The Crown are appealing in respect of a sentence of 2 years imprisonment imposed on the respondent following his being found guilty by the jury of a charge of manslaughter. The facts found by the sentencing Judge, who presided at the trial, were stated very concisely by him in his sentencing remarks. They are: (AB23)

"The facts are that on 2 August 1997 in Barnsley Street, Queens Park on an afternoon of what would otherwise be a quiet suburban street you were driving a motor vehicle in which the deceased and one other was a passenger. Witnesses heard the vehicle enter from Hartfield Street, you making a right-hand turn into Hartfield Street with the tyres squealing. It continued down the road and around a right-hand bend in Barnsley Street.

There was evidence that there was - witnesses have said that they heard tyres spinning on the road. When the vehicle made the right-hand turn there was smoke pouring off the back tyres. The vehicle continued to fishtail and no witnesses saw any brake lights come on. The vehicle impacted with a tree and there was substantial damage to the vehicle. It was noted from witnesses who arrived at the scene that the deceased appeared to be injured to the head.

...You yourself were under the influence of alcohol and your reading at the time was .167 per cent calculated to .138 per cent at the time of the collision. The deceased at the time was not wearing a seat belt. She suffered head injuries and spent some weeks in intensive care. Her injuries predisposed her to pneumonia and she ultimately died some 7 weeks later."

2 The respondent was 35 years of age and at the time of his driving he was not the holder of a driver's licence. He had, as his Honour observed, a criminal history relating mainly to traffic matters and assaults. His Honour imposed a term of 2 years imprisonment with an order for eligibility for parole and an order that he be disqualified from obtaining a driver's licence for a period of 3 years.

3 The principles on which this court must act in a Crown appeal were set out by Malcolm CJ in R v Grein [1989] WAR 178 at 179 - 180. An appellate Court does not interfere with the sentence imposed merely because it is of the view that the sentence is insufficient or excessive. It interferes only if it be shown that the sentencing Judge was in error in acting on a wrong principle or a misunderstanding or in wrongly assessing some salient feature of the evidence. The error may appear in what the sentencing Judge said in the proceedings, or the sentence itself may be so excessive or inadequate as to manifest such error. The principles were recently stated again by the High Court in Lowndes v The Queen [1999] HCA 29; (1999) 73 ALJR 1007 at 1010 [15]. It was there said that the discretion which the law commits to sentencing Judges is of vital importance to the administration of our system of criminal justice.

4 The view I have reached in the present case is that the sentence imposed is so inadequate as to manifest the type of error referred to. It is more in the range of a sentence one would expect if a person is convicted of dangerous driving causing death, where there has been more than momentary inattention or misjudgment and where there has been culpability in the nature of driving with too high a blood alcohol content or speeding.

5 The Crown point to the following observation of his Honour: (AB24A)

"It is the submission of the crown in relation to this matter that this offence is at the high end of the scale. It involved driving with speed, doing burn-outs in a sleepy street. It involved alcohol. You yourself had no licence and that there were two passengers in the vehicle. I accept those submissions."

6 I do not consider that this was intended to mean that his was one of the worst cases of motor manslaughter. Bad as it is, there have been before these Courts many cases in a higher category where deliberate risks are taken at high speed. However, the factors of driving at speed, erratically and with a blood alcohol content are important factors to weigh up. I would see them as factors that would have caused the jury to convict of manslaughter as distinct from dangerous driving causing death. There was some discussion in this Court as to whether the respondent's driving amounted to a "burn-out". It is not possible for this Court to give meaning to slang terms of this type. It is sufficient to say that there was evidence that the respondent was speeding, his wheels were spinning and smoke was seen to be coming from them. The vehicle hit a tree as he was not in control of it.

7 When factors of speed and alcohol are present in a case of dangerous driving causing death, as distinct from manslaughter, they are the factors which would indicate a term of imprisonment as distinct from a fine. This Court referred to those principles in the context of dangerous driving causing death in A M Smith v The Queen [1976] WAR 97 at 107 which was a case decided shortly after the introduction of the offence of dangerous driving causing death. When these factors are present and when the jury convict of manslaughter, weight must be given to that verdict.

8 The next factor present which would weigh against the possibility of imposing a lenient sentence is the respondent's record and particularly his traffic record. This was summed up by his Honour as follows: (AB24)

"Your record indicates that in 1983 you had a conviction for speeding; in 1983 a conviction for excess of .08; in 1983 a conviction for driving under the influence and no motor driver's licence; in 1985 a conviction for excess of .08; in 1986 a conviction for no motor driver's licence it being under suspension; in 1987 for breach of a community service order; in 1990 assaulting public officer and resisting arrest; in 1990 refusing a breathalyser test and having no motor driver's licence; in 1992 common assault, assaulting a public officer and resisting arrest and in 1993 a further conviction for excess of .08. You had convictions in 1998 but they arise out of the incident for which you are to be sentenced by me."

9 I would add that between 1983 - 1993 there have been four convictions of driving without a licence. All these factors lead me to the view that the sentence of 2 years imprisonment were so inadequate as to demonstrate error. It becomes necessary, therefore to consider the appropiate sentence.

10 In this respect a question arises as to whether the respondent failed to show remorse. I have not taken into account any absence of remorse in reaching the view I have expressed. However the question of remorse arises in considering the proper sentence. His Honour said in respect of remorse: (AB24A)

"It is further said that you have not shown any remorse; regret or distress perhaps but no remorse for the reason that you have not pleaded guilty to this offence. Your conduct in defending it involved an attack on the Mount Henry Hospital as being responsible and an attack on Dr Cadden. In my view, these matters do not indicate any remorse on your part and no credit should be given for that. Of course they don't increase the penalty but neither do they reduce it."

11 The respondent now seeks leave to introduce evidence to show that he was remorseful. I consider, however, that what has arisen is no more than a consideration of the definition of terms. His Honour carefully considered the respondent's background and had earlier said: (AB24)

"According to the report you began drinking alcohol at 13 years of age and developed a serious pattern of abuse. However, it was not until some months after the crash that you accepted that you did have a significant problem with alcohol and made an effort to control your intake. The report indicates that you present as a mature person who accepts responsibility for the crash though believing it was your unfamiliarity with the vehicle rather than irresponsible driving that caused it. You freely admit that you were under the influence of alcohol at that time. You apparently now acknowledge that you had a serious alcohol problem at that time and that you have made genuine efforts to change your lifestyle to prevent further tragedy."

12 His Honour, in the paragraph I have previously set out, when speaking of remorse, refers to the fact that the respondent had shown regret or distress. When he referred to the fact that the respondent had not shown any remorse, I consider that his Honour was saying no more than the extra credit available for a plea of guilty would not be available to the respondent.

13 A defendant may have deep regret that his action has caused a death, but remains of the view that the value judgment that should be made on his manner of driving is one that he was not criminally culpable. I consider further, in the circumstances of this case where the deceased died some 7 weeks later with pneumonia intervening, that it was understandable to raise with the medical practitioners a question of causation. In all these circumstances, I would not see his actions in defending the matter as showing absence of remorse and it is to his credit that he has acknowledged his alcohol problem and is making genuine efforts to change his lifestyle to prevent further tragedy. For these reasons I do not consider that the evidence now sought to be adduced would be of any assistance so there would be no need to consider the principles as to whether or not the evidence should be admitted. On this basis the application to admit the evidence is refused.

14 I consider in all the circumstances the appropriate sentence to substitute is one of 4 years imprisonment with an eligibility for parole and with the order of disqualification as imposed by his Honour, the sentence to date from the time fixed, namely 8 October 1999. I would allow the appeal accordingly.

15 WALLWORK J: I have had the advantage of reading the reasons for judgment of Pidgeon J. I agree with those reasons. There is nothing I wish to add.

16 MURRAY J: I have had the advantage of reading in draft the reasons for decision published by Pidgeon J. I agree with his Honour that the appeal should be allowed, the sentence of 2 years imprisonment with eligibility for parole should be quashed and a sentence of 4 years imprisonment with eligibility for parole to date from 8 October 1999 should be substituted.

17 I think this to be a clear case where the penalty imposed by the trial judge was manifestly inadequate. The facts have been discussed by Pidgeon J and I need not repeat them. I merely observe that in my opinion the negligence involved was not only gross as the law understands that term, importing a degree of recklessness, but was of a high order on the facts of the case. Whether or not the vehicle was deliberately driven so as to cause it to "fish-tail" with smoke pouring off the back tyres as they were spinning on the road, that activity continued for a relatively long period with no apparent attempt made to modify the behaviour of the vehicle and to bring it under control. The speed at which the vehicle was travelling was clearly much too high and the respondent's apparent inability to behave sensibly behind the wheel of the vehicle was no doubt in part, at least, attributed to by his high blood alcohol content.

18 As Pidgeon J has observed, the respondent had a bad traffic record and he was not the holder of a driver's licence. There was nothing to be said in mitigation of punishment for driving behaviour which put the respondent's passengers and other road users at substantial risk and which in fact caused the death of a passenger. Not only was the respondent's unfamiliarity with the vehicle, a matter upon which he placed some reliance as an explanation for the accident, not mitigatory in its effect: it seems to me it actually made matters worse.

19 For those reasons I concur in the orders proposed.