Court of Appeal (WA)|2009-06-25|Before: Wheeler JA

THE STATE OF WESTERN AUSTRALIA -v- BUTLER [2009] WASCA 110 (25 June 2009)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : THE STATE OF WESTERN AUSTRALIA -v- BUTLER [2009] WASCA 110

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law - Sentence - Driving a motor vehicle involved in an incident occasioning death and bodily harm when the driver was at the time of the incident under the influence of alcohol to such an extent as to be incapable of having proper control of his vehicle - Section 59(1)(a), s 59A(1)(a) Road Traffic Act 1974 (WA) - Aggregate sentence of 3 years 8 months' imprisonment - Whether manifestly inadequate - Factors influencing culpability - Loss of life - Manner of driving - Awareness of incapacity

Farmer v The State of Western Australia [2007] WASCA 219

Longbottom v The State of Western Australia [2008] WASCA 203; (2008) 51 MVR 224

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

Penny v The State of Western Australia [2006] WASCA 173; (2006) 33 WAR 48

Taylor v The State of Western Australia [2007] WASCA 218; (2007) 177 A Crim R 81

The State of Western Australia v BLM [2009] WASCA 88

The State of Western Australia v Gibbs [2009] WASCA 7

The State of Western Australia v Mitchell [2008] WASC 114

The State of Western Australia v Porter [2008] WASCA 154

The State of Western Australia v Richards [2008] WASCA 134

Veen v The Queen [No 2] [1988] HCA 14; (1988) 164 CLR 465

1 This is a State appeal against sentence. On 13 November 2008, the respondent pleaded guilty to an indictment which alleged that on 18 April 2008, a motor vehicle being driven by him was involved in an incident occasioning death, and at the time of the incident he was driving under the influence of alcohol to such an extent as to be incapable of having proper control of the vehicle. That was an offence against s 59(1)(a) of the Road Traffic Act 1974 (WA) (RTA), and carries a maximum penalty of 20 years' imprisonment. The respondent was also dealt with on a s 32 notice in relation to a count of dangerous driving occasioning bodily harm, under s 59A(1)(a) of the RTA. He was sentenced for the first offence to 34 months' imprisonment, and for the second to 10 months' imprisonment. Both terms of imprisonment were made cumulative, giving a total of 3 years 8 months' imprisonment. His minimum custodial period will be 22 months.

2 The prosecution's statement of facts, which the respondent accepted, was as follows:

At approximately 12.51 pm on Friday, 18 April 2008, the offender was driving his red Commodore registration number 1COI-532, in a westerly direction along Berehaven Avenue, Thornlie. The offender was speeding. In that area, Berehaven Avenue is a single carriageway sealed road in a good state of repair that runs predominantly in a south-west, north-eastern direction. There is no line marking the centre of the road.

Berehaven Avenue is in a residential area, and the speed limit is 50 kilometres per hour. The day was overcast, but visibility was good and the road was dry. Ahead of the offender, travelling in the same direction, were two vehicles. The first of the two vehicles, a yellow Hyundai Elantra, had slowed down with the driver signalling her intention to turn right into Pryor Street.

As he approached the two vehicles, the offender accelerated heavily and moved onto the incorrect side of the road to overtake the two vehicles in front of him. The driver of the yellow Hyundai had started to turn right into Pryor Street. The front left side of the offender's Commodore collided heavily with the front right of the Hyundai.

The offender's vehicle then speared off towards the north-[w]est corner of the intersection. The Commodore then mounted the curb, became airborne, and travelled over the front yard and garden bed of the house situated at 145 Berehaven Avenue. The Commodore landed on the grass between a garden bed and driveway of that house and continued in a north-westerly direction.

At that time, Mrs Tania Moorby, who resided at 145 Berehaven Avenue with her husband Jamie Moorby and their 11-month-old daughter, Grace, was just returning from the shops on foot with Grace secured in her pram by a harness. Following a brief stop at the letterbox to collect the mail, Mrs Moorby began pushing the pram up the driveway towards the house, when she and the pram containing Grace were hit by the Commodore driven by the offender.

The Commodore then went through the brick wall separating 145 Berehaven from 147 Berehaven Avenue, which showered debris across the front garden and onto the roof of the house at 147 Berehaven Avenue. The Commodore then collided with the front porch area of that house, causing extensive structural damage.

As a result of the collision, Mrs Moorby was thrown into the air and she came to rest in the front garden of 147 Berehaven Avenue. She sustained broken ribs and abrasions. Gracy Moorby came to rest in the front porch area of 147 Berehaven Avenue. Grace sustained severe injuries, including head injuries, and died at the scene.

Several minutes after the collision, the offender left the scene on foot. He was pursued by members of the public. Some of them caught up with the offender about 400 metres away in Elvington Way. One man was talking to the offender and had persuaded him to return to the scene when a police officer arrived.

The offender was taken to Cannington Police Station where a breath analysis test was administered. The test gave a reading of 0.181 grams of alcohol per 210 litres of breath, which was calculated to have been 0.166 grams of alcohol per 210 litres of breath at the time of the collision. When given the breath test, the offender said that he had had his last drink containing alcohol early that morning, probably at 2 or 3 am.

3 There are three matters which should be noted in amplification of that statement of facts. The first is that, so far as the respondent leaving the scene was concerned, he was not charged with either failing to stop or failing to render assistance. The statements of witnesses make it clear that after the collision, he climbed out of the window of his vehicle, being unable to exit through the door, and moved briefly around the scene. It seems to have become apparent to him at a fairly early stage that he had killed or injured a baby or small child, and his reaction appeared to be one of shock. Initially, he did as directed by people at the scene, moving to one side and remaining there. It is not clear when he began to move away from the scene, but his counsel submitted that at some point, while still in a dazed state himself, he had felt threatened by the understandable distress and anger of those who came to the scene to assist.

4 So far as the time of last drink is concerned, the police officer who recorded the respondent's response to the question about the time of his last drink had noted that he had said, in effect, "[n]o idea what time ... early this morning ... not sure, probably about 2 or 3 this morning". That may be of significance, since the accuracy of the calculation of blood alcohol level is, of course, dependent on the time of last drink. There was no evidence before his Honour, or before us, of whether the calculation might have been higher or lower, depending upon whether the time of last drink was in fact earlier or later than the respondent had indicated.

5 Finally, the respondent's counsel explained in some detail the circumstances which led to the respondent's high blood alcohol level. He was, at the time, working shiftwork on a mine site, on a fly-in, fly-out basis. He had been studying minerals engineering and had previously been studying and working in Kalgoorlie. While in Kalgoorlie, he had been in a de facto relationship with a woman with two children. That relationship had lasted approximately four years and he had become depressed when it ended. It seems that at about that time his social life in Kalgoorlie revolved, or began to revolve, heavily around alcohol. During his fly-in, fly-out work, he would drink heavily in a bingeing pattern when off work. On the Wednesday prior to the incident, he estimated that he had consumed about a bottle and half of scotch at his parents' residence. On the following night, which was the night preceding the incident, he went to a house in Rockingham with his girlfriend and consumed a very considerable quantity of pre-mixed spirits. He returned to his home after socialising and went to bed at about 3 or 4 am. He woke later that morning, at approximately 9 am, feeling "seedy and hungover". He decided, at some stage, to go to the local shopping centre in order to take some money out of an ATM. As the statement of facts indicated, it was nearly 1 in the afternoon when this incident occurred, at which time the respondent's best guess seems to be that he had ceased drinking somewhere between 10 and 11 hours previously.

6 So far as his personal circumstances were concerned, the respondent pleaded guilty at the earliest opportunity. His counsel submitted that he fully accepted that he should be imprisoned for his offending, but that, accepting that that would be the case, he had nevertheless taken some steps to address what he had by then recognised to be an alcohol problem. Expert reports provided to the court supported that submission. It was submitted on his behalf that he felt grief and remorse. A letter he had written expressed those feelings; his father had written a letter to the court in which he said that he could see the respondent suffering real grief and remorse for the effect his actions had had upon the victim's family; and there were a number of references presented to the court attesting to his good character. He was 24 years of age at the time of the offences, and had one previous conviction while an adult for excess .02 while on P plates some years previously.

7 The State submits that in ascertaining the appropriate sentences in the present case, some assistance can be gained from sentences imposed in motor vehicle manslaughter cases. I accept that submission. Similar reasoning was applied by this court in relation to the offence of dangerous driving occasioning death in circumstances of aggravation, under s 59(1)(b) of the RTA, which carries the same maximum penalty, in The State of Western Australia v Gibbs [2009] WASCA 7. However, the State also notes, correctly, that there is no tariff for offences of that kind because of the great variation which is possible in the circumstances of the offending (and, I would add, of the offenders).

8 Before I turn to consider what the range of sentences is for motor vehicle manslaughter, and where in a spectrum of offending these offences might sit, it is desirable to make some brief observations about the difficulty of sentencing in cases of this kind. In Taylor v The State of Western Australia [2007] WASCA 218; (2007) 177 A Crim R 81, Miller JA, with whom Owen JA and I agreed, noted, at [26] - [28], that the legislature plainly considered the mere fact of death to be a very significant factor in sentencing for offences of that kind. I made similar observations in Longbottom v The State of Western Australia [2008] WASCA 203; (2008) 51 MVR 224 at [59]. In that latter case, I also noted at [47], although in passing, a circumstance which makes sentencing in cases of this kind difficult.

9 In all of the s 59 RTA offences which involve deaths resulting from the driving of a motor vehicle, it appears to be the fact of death which has led the legislature to impose a very heavy maximum penalty. That reflects the value the legislature has placed on human life. However, there is not one fixed penalty applicable in any case where a person dies; still less is there a fixed penalty which is to be multiplied by the number of people killed. Rather, in setting a maximum penalty the legislature has recognised that there can be a wide variation in culpability in such cases.

10 Logically, there are two sets of factors which would affect where, in the scale of offending, an offence of this kind would lie. One set of factors are those personal to an offender. For example, driving which results in death is plainly, all other things being equal, more culpable if the offender deliberately drives in a manner which the offender knows to be dangerous to himself or herself and to the public, either simply for the thrill of the experience, or in order to force pursuing police to abort a police chase. It is more culpable where an offender has previously been convicted of numerous traffic offences, not because the convictions themselves aggravate the seriousness of the conduct, but because they show an attitude of defiance of the law and disregard for the safety of the community. In addition, there are, of course, many factors personal to an offender which may be mitigating; one which is not unusual in cases of this kind, although it is relatively rare in other types of offending, is the combination of an offender's previous good character with remorse and anguish over the dreadful consequences of the offending.

11 The other broad category of factors which will affect where in the range of seriousness the offending lies concerns, of course, the manner of driving. However, in attempting to determine the objective seriousness of the manner of driving, it is not possible to disregard entirely the relatively light penalties imposed upon those who drive in a manner which puts the public at risk, where that risk does not in fact materialise. So, where a person drives under the influence of alcohol so as to be incapable of having proper control of a vehicle, the penalty for a first such offence can be no greater than a fine, coupled with disqualification from driving for a time. Even recognising that disqualification can be a very serious inconvenience or even hardship, that is not a severe penalty. Similarly, for the offence of reckless driving (the most serious in the scale of careless/dangerous/reckless driving offences) a first offence attracts a penalty of no greater than 9 months' imprisonment and disqualification. Had there been no death, then, the offences under the RTA which the respondent appears to have committed would have seen him imprisoned for no more than 9 months, it would seem. In practice, of course, it is likely that any period of imprisonment would have been significantly shorter.

12 There is a difficulty for a sentencing court in the tension between the fact that sentences in cases of driving which cause death may often vary by many years, for reasons which are largely attributable to the manner of driving, and the fact that, as I have noted, such a manner of driving does not, in itself, seem to have been considered by the legislature to be sufficiently serious to warrant imprisonment for any significant length of time. These tensions are an inevitable result of legislative attempts to grapple with two conflicting considerations. The first is that the community obviously, and rightly, places a very high value on human life. Every member of the community is at risk of being killed by careless, negligent or deliberately reckless driving, and the yearly road toll shows that that risk is not insignificant. On the other hand, because most members of the community drive, the community generally is aware that it is a counsel of perfection to expect every driver at every second to be perfectly well, perfectly alert, giving 100% of their attention to the task, and displaying no errors of judgment. There are, then, conflicting community interests in punishing bad driving, while showing compassion for the inevitable mistakes which even the most careful driver must occasionally make. These pressures are not unique to this State; that they do not make for easy answers can be seen when one compares offences and sentences across States. Maximum penalties for different sorts of dangerous driving, when death is caused or life may be threatened, vary widely. In some States, the penalty for dangerous driving, even where no death results, is much more severe than in Western Australia (for example, 3 years' imprisonment in Queensland). In most States, the maximum penalty where death is caused is less than in Western Australia.

13 Returning to this State, sentences imposed for motor vehicle manslaughter were most recently reviewed by Buss JA in Penny v The State of Western Australia [2006] WASCA 173; (2006) 33 WAR 48. At [79] - [87], Buss JA considered a number of cases. The conclusion which resulted from that consideration was that under the pre-transitional range, sentences of 3 years to 10 years' imprisonment had been imposed. Those ranges would have resulted in minimum non-custodial periods of from 1 year to 4 years 8 months, approximately (that is, a head sentence of 2 years to 6 years 8 months' imprisonment) (McLure JA at [16]). Some, but not all, of those sentences followed pleas of guilty.

14 In a number of cases reviewed by Buss JA, and in some later cases to which the State refers in its submissions, the driving was very bad indeed. In The State of Western Australia v Mitchell [2008] WASC 114, for example, the offender had driven with a blood alcohol level of .205%. He had driven the wrong way on the freeway, in the face of oncoming traffic, for approximately 500 metres. He was driving without a licence, and while disqualified from holding a licence because of a previous drink driving offence. After a plea of guilty to manslaughter, and a number of other offences, he was sentenced to 6 years' imprisonment. In Farmer v The State of Western Australia [2007] WASCA 219, the appellant was sentenced for a number of matters, including motor vehicle manslaughter. The sentence imposed for manslaughter was 5 years 4 months, after a plea of guilty. That offending involved driving a stolen motor vehicle in a high speed police pursuit through a number of suburbs at speeds up to 140 km per hour, speeding through several traffic lights against the red light, and travelling on the incorrect side of the roadway. Farmer had paid no attention to his sister, a passenger, who yelled at him several times to stop the vehicle. The circumstances of Penny itself were likewise very serious. A consideration of those cases tends to suggest that, as Miller JA indicated in Taylor at [45] - [47], sentences in relation to the most serious cases of manslaughter may be somewhat less than the statutory penalty provided by the legislature would suggest. It may be that it is desirable to firm up penalties for offences of this extreme nature.

15 The State contends, however, that the present offences were "particularly serious", because of the manner of the respondent's driving. In my view, that contention cannot be made out. I accept that, as the State has noted, the respondent attempted to overtake, without indicating, two vehicles, in a residential street. That was plainly a foolhardy manoeuvre which any person unaffected by alcohol would have realised he should not attempt. I accept also that the respondent was, at the relevant time, heavily accelerating and that, as the State submitted to the learned sentencing judge, he was not merely "a couple of kilometers" over the 50 km per hour speed limit. However, there was no expert evidence before the sentencing judge as to the precise speed at which the respondent was travelling.

16 Importantly, it was no part of the State's submissions to the learned sentencing judge that this was a pattern of driving which had persisted for some time. Rather, the statement of material facts indicated a relatively brief period during which the respondent had wrongly and foolishly accelerated to a speed in excess of the speed limit and had done so for the purpose of performing a dangerous manoeuvre.

17 The State also submits that the extent to which the respondent was under the influence of alcohol was "very high". That is, of course, an element of the offence; at a reading in excess of .15%, he was deemed to be incapable of having proper control of his vehicle (s 59B(5) RTA). However, it does not appear to me that his level of intoxication was significantly in excess of .15% and, as I have noted, the figure calculated for his blood alcohol level was based on no more than a "best guess" by the respondent about the time of his last drink.

18 The State, in oral submissions to this court, appeared to place reliance upon a finding made by the learned sentencing judge about the respondent's knowledge of his level of intoxication. His Honour found that the respondent should have been aware that he was still under the influence of alcohol. If that finding could be sustained, the State's case on this appeal would be much stronger. However, that was not a possible finding which his Honour raised with either counsel for the respondent or for the State, and there was no evidence to support it. The respondent's counsel accepted, in his sentencing submissions, that the respondent "shouldn't have been driving in the first place", but did not either accept, or suggest, that he realised he was still affected by alcohol. In my view, it was not open to his Honour to make that finding, in the absence of any admission, without the assistance of expert evidence, for the following reasons.

19 The consumption of alcohol impairs judgment. It is because a person's judgment (as well as such things as reaction time) will be badly impaired by the consumption of a considerable quantity of alcohol that it is an offence to drive with a blood alcohol content exceeding .05%. Generally, it is a matter of common experience, that the more alcohol one consumes, the less good a judge one is of one's abilities. People who are very much impaired may consider that they are perfectly all right. The real moral culpability of a person's driving under the influence of alcohol does not lie simply in their driving while affected, since a person in that state may well not realise they are significantly affected. Rather, it generally stems from the manner in which they become affected. For example, if one takes some hypothetical innocent who is unfamiliar with the effects of alcohol, whose fruit drink is "spiked" with flavourless spirits, and if one assumes that that person becomes intoxicated and, not realising it, then drives, one would consider them significantly less culpable than a person who had deliberately gone out, driving their car to a restaurant or hotel, planning to drive home, and had, while out, deliberately consumed the same quantity of alcohol. The moral culpability lies in consuming alcohol to any significant degree in circumstances in which one plans to drive; if one plans to consume more than a very small amount, then every driver knows that he or she should organise alternative transport.

20 In the present case, there is no indication that the respondent habitually drove while intoxicated. His father's letter to the court makes an assertion that he would "always" arrange for alternative transport, if drinking. Importantly, there was no evidence that he understood that some 10 or 11 hours after his last drink, and after he had slept, he might still be so intoxicated that he would be incapable of having proper control of his vehicle. I doubt that the way in which alcohol is both absorbed into the bloodstream, and eliminated from it, is so well understood in the community that most drivers would realise that they could not drive so long after drinking, even if they had drunk a significant quantity of alcohol. Since drafting these reasons, I have read draft reasons of Miller JA, in which his Honour considers it "remarkable" that the respondent's blood alcohol level could be so high, so long after a last drink. That observation is consistent, I think, with the likely understanding in the general community.

21 I do accept, however, that, on his own account, the respondent felt "seedy". He should have understood that there was a risk that his driving might be affected by that condition and he should have considered that risk. There is no evidence that he did so. That is an aggravating circumstance.

22 Finally, I turn to the last matter upon which the State relies in order to characterise these offences as particularly serious. The consequences of this accident were, as the State asserts, "horrific". That is accepted by the respondent. Although all human lives have, in one sense, equal weight, the respondent's counsel accepted that there is something peculiarly awful about the death of a very young child. There are a variety of reasons for that, but the most obvious are perhaps the devastating effects that a death of that kind has on the parents and other members of the immediate family. Those devastating effects are apparent in the anguish which is seen in the victim impact statements here. In that sense, the consequences of this offending can be described as "particularly serious".

23 I have already noted the sentencing range indicated by Buss JA in Penny. Given that there was a death of a young baby, given that there was also bodily harm caused to the baby's mother, and given that the respondent drove, when, on his own account, he was feeling "seedy", and that he engaged in what any sober person would have realised was a plainly dangerous manoeuvre, the effective total sentence imposed upon the respondent, which will see him required to serve a minimum custodial period of 22 months before he is eligible for parole, may be regarded as

towards the lower end of an appropriate range of sentences for offences of this kind. It might, indeed, be characterised as lenient.

24 However, the respondent is a relatively young man. He is of otherwise good character and there is no history of deliberate defiance of the law, or of disregard of the road traffic rules generally. He has recognised and taken steps to address the alcohol problem which ultimately led to his offending. All those who know him well or have prepared reports for the court appear to accept that he feels genuine grief and remorse about his offending. I am sure that, as Mrs Tania Moorby pointed out in her oral victim impact statement, unless and until he has a child of his own, he will not really even begin to appreciate the effect which his offending has had on the parents of the deceased Grace Moorby. However, even so, it must be accepted that it can be no easy thing for a young man of otherwise good character to live with the knowledge that he has killed a tiny child and shattered the lives of the child's family. There is no reason to doubt the assertions that he has nightmares about these events, and cannot go for long without thinking of them. I accept, as did the learned sentencing judge, that he was genuinely remorseful.

25 In those circumstances, I am not persuaded that the learned sentencing judge erred in imposing an aggregate sentence which is plainly towards the low end of the range of sentences appropriate to offending of this kind. I would therefore dismiss the appeal.

26 PULLIN JA: The respondent's driving caused the death of a baby and bodily harm to the baby's mother. The question for consideration on this appeal is whether the sentence was manifestly inadequate. Central to that question is a consideration of the respondent's culpability in the light of the mitigating factors. Wheeler and Miller JJA have discussed the issue of culpability and identified the relevant mitigating factors.

27 What is particularly significant in this case in relation to culpability, is that the respondent did not drink and drive as that expression is usually understood. After drinking heavily, he went home to bed and slept for several hours. Several hours after he woke up he then decided to go to the local shopping centre to take some money out of an ATM. The material provided to the court revealed that the respondent had his last drink at 2 or 3 am and that he drove and committed the offences on the following afternoon at about 1 pm. Many people would know that a person's blood alcohol level may still be elevated the morning after a bout of heavy

drinking. However, as Miller JA says, it was remarkable that the respondent's blood alcohol level was as high as it was in the afternoon at the time the incident occurred.

28 The sentence imposed for the more serious of the two charges fell within the range of sentences customarily imposed. I have carefully considered what Miller JA has said and note in particular his Honour's statement that if it were not for the decision in The State of Western Australia v BLM [2009] WASCA 88, he would have sentenced the respondent to 6 years' imprisonment for the offence the subject of the indictment, but being bound by BLM he would fix a sentence of 4 years. To allow the appeal and impose a 4-year sentence would be to substitute one sentence within the range of sentences customarily imposed for another sentence within the range. Furthermore, care must be taken not to substitute appellate opinion for that of the sentencing judge. In Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665, the Full Bench of the High Court said that it is particularly important that:

[A] court of criminal appeal may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing judge exercised his or her discretion. This is basic [15].

29 In my opinion the sentencing judge did not make any error. For the reasons given by Wheeler JA, I would dismiss the appeal.

30 MILLER JA: The respondent pleaded guilty in the District Court at Perth to three offences. The first offence was contained in an indictment and it alleged an offence under s 59(1)(a) of the Road Traffic Act 1974 (WA), namely:

On 18 April 2008 at Thornlie, a motor vehicle, namely registration number 1COI-532, driven by Benjamin Alan Heath Butler was involved in an incident occasioning the death of Grace Emily Moorby, and that at the time of the incident Benjamin Alan Heath Butler drove the motor vehicle while under the influence of alcohol to such an extent as to be incapable of having proper control of the vehicle.

31 The second offence was dealt with under s 32 of the Sentencing Act 1995 (WA). It was a charge in the Armadale Magistrates Court that on the same date and at the same place the respondent drove a motor vehicle on a road whilst under the influence of alcohol to such an extent as to be incapable of having proper control of that vehicle. This was an offence against s 63(1) of the Road Traffic Act.

32 The third offence was again dealt with under the provisions of s 32 of the Sentencing Act. It was an Armadale Magistrates Court charge that alleged an offence under s 59A(1)(a) of the Road Traffic Act, namely that the respondent was involved in an incident occasioning bodily harm to Tania Kathleen Moorby and at the time of the incident the respondent was under the influence of alcohol to such an extent as to be incapable of having proper control of his vehicle.

33 On 13 November 2008, the respondent was sentenced on the s 59(1)(a) offence to imprisonment for 34 months. On the charge of occasioning bodily harm he was sentenced to imprisonment for 10 months. This sentence was made cumulative on the sentence of 34 months, resulting in an aggregate sentence of 44 months' imprisonment. On the charge of driving under the influence of alcohol he was fined $1,500 and disqualified from driving for a period of 2 years. There were also periods of disqualification of the respondent's motor driver's licence for 2 years imposed on each of the other two offences, making a total period of disqualification of 6 years.

34 The appellant appeals with leave against the sentences imposed in relation to the offences under s 59(1)(a) and s 59A(1)(a) of the Road Traffic Act, namely the offences of driving a motor vehicle which was involved in an incident occasioning death and driving a motor vehicle which was involved in an incident occasioning bodily harm, and, in both cases, doing so whilst under the influence of alcohol to such an extent as to be incapable of having proper control of the vehicle.

35 At the hearing of the appeal, counsel for the appellant really contested only the sentence imposed on the s 59(1)(a) offence, namely that of 34 months, arguing that this should have been a greater term of imprisonment to which the term of 10 months' imprisonment on the 'occasioning bodily harm' charge should have been ordered to be served cumulatively.

36 The facts of the case reveal that the offences occurred at approximately 12.51 pm on 18 April 2008. The respondent was the driver of a Holden Monaro sedan (described by the prosecutor as a Holden Commodore sedan) which was being driven in a westerly direction along Berehaven Avenue, Thornlie. Berehaven Avenue was at the relevant time in a residential area where the speed limit was 50 km per hour.

37 The day was overcast but visibility was good and the road was dry. Travelling ahead of the respondent in the same direction were two vehicles. The first was a yellow Hyundai Elantra. The driver of that vehicle had slowed with the intention of turning right into Pryor Way (referred to at the hearing as Pryor Street), a T-junction with Berehaven Avenue.

38 As the respondent approached the two vehicles from the rear, he accelerated heavily and moved out to the incorrect side of the roadway to overtake both vehicles. The driver of the yellow Hyundai Elantra had, however, already started to turn right into Pryor Way. The front left of the respondent's Holden Monaro sedan collided heavily with the front right of the Hyundai Elantra. The respondent's vehicle then speared off towards the north-west corner of the intersection. It mounted the kerb, became airborne, and landed on the grass between a garden bed and the driveway of the house at 145 Berehaven Avenue. The Holden Monaro sedan then continued in a north-westerly direction within the boundaries of the property.

39 The residents of 145 Berehaven Avenue were Mrs Tania Moorby, her husband Jamie Moorby and their 11-month-old daughter Grace Moorby. Mrs Moorby and her daughter had just returned from a shopped expedition. The child was in a pram secured by a harness and Mrs Moorby was pushing the pram up the driveway towards the house, when both she and the pram were hit by the respondent's Holden Monaro sedan.

40 After striking Mrs Moorby and her child, the Holden Monaro sedan went through a brick wall separating 145 from 147 Berehaven Avenue and collided with the front porch of 147 Berehaven Avenue, causing considerable structural damage to that house.

41 The collision with Mrs Moorby threw her into the air. She came to rest in the front garden of 147 Berehaven Avenue. She had broken ribs and abrasions. Grace Moorby came to rest in the front porch area of 147 Berehaven Avenue. She sustained severe injuries which included head injuries and she died at the scene.

42 The respondent left the scene on foot but was pursued by members of the public and caught about 400 m away in Elvington Way. He was there persuaded to return to the scene, which he did. He was apprehended by police and taken to the Cannington Police Station, where a breath analysis was administered. It gave a reading of 0.181 g of alcohol per 210 litres of breath, which was calculated to have been 0.166 g of alcohol per 210 litres of breath at the time of the collision. In other words, a blood alcohol reading of 0.166%. At the time the breath test was given, the respondent told investigating officers that he had consumed his last drink of alcohol at about 2.00 am or 3.00 am on the morning in question.

Submissions on behalf of respondent at sentencing hearing

43 The respondent was represented by counsel at the sentencing hearing. Through his counsel he admitted travelling at more than 50 km per hour when he attempted to overtake the two vehicles ahead of him. He also admitted accelerating heavily. It was accepted that in a number of witness statements people had said that they heard the noise of an accelerating motor vehicle. This was clearly the vehicle of the appellant.

44 Counsel for the respondent conceded that the respondent was driving his vehicle at a time when his blood alcohol level made him incapable of properly controlling the motor vehicle. It was conceded that he should not have been driving in the first place.

45 The explanation given for the respondent's blood alcohol reading was that he was in Perth after working at a mine site. He had a week off work. On the Wednesday night (the accident occurred on a Friday) he had consumed about a bottle and a half of scotch. On the Thursday night/Friday morning he had gone to a house in Rockingham with his girlfriend and had there consumed 'considerable quantities of alcohol', which were estimated to be in excess of a dozen pre-mixed scotch and bourbon cans or stubbies.

46 The respondent was said to have gone to bed at between 3.00 am and 4.00 am on the morning of 18 April 2008, awakening at approximately 9.00 am. He had then decided to go to the local shopping centre to take some money from an ATM. His instructions to his counsel were that he was 'feeling seedy and hungover' and it was in the course of his journey home from the shopping centre to his parents residence that the accident had occurred.

47 Counsel for the respondent said that the respondent had seen no indication from the Hyundai Elantra. He accepted that the respondent was travelling at more than 50 km per hour and had increased his speed substantially to overtake the two vehicles.

48 Counsel for the respondent contended that after the accident had occurred the respondent had tried to go to the help of Mrs Moorby, but that a woman had begun screaming at him and that he had been dragged to the ground by two men. It was claimed that he had then wrestled himself free and approached Mrs Moorby again. He had then observed the young child covered in bricks, was in shock, and had walked away a little way down the street to the corner. It was there that he was stopped and taken back to police.

49 Submissions were made on behalf of the respondent that he had taken steps to rehabilitate himself by way of attending psychological counselling and regular 'alcoholic' (presumably Alcoholics Anonymous) meetings. A psychological report of Dr Phil Watts was tendered to the court and relied upon by counsel. This report stated that Dr Watts had seen the respondent for six sessions. Dr Watts expressed the view that the respondent was considerably distressed by the incident; was concerned about the impact upon the victim's family; had expressed considerable remorse about what had transpired; and would like to get the matter resolved as quickly as possible so that he could get on with his life. Dr Watts had recommended a course of counselling in relation to drinking. He considered the respondent to be deeply remorseful and somewhat traumatised. He thought that the respondent was a good prospect for rehabilitation.

50 The respondent's personal circumstances were detailed by his counsel. This included reference to his record of traffic convictions. He had a conviction in the Armadale Children's Court on 27 August 2001 for reckless driving and a conviction in the Perth Court of Petty Sessions on 23 October 2002 for driving in excess of 0.02%.

51 The prosecutor made written submissions on sentence and expanded orally upon them. She submitted that a term of imprisonment to be served immediately was the only appropriate disposition and that there should be a degree of cumulation by reason of the two offences under s 59(1)(a) and s 59A(1)(a) of the Road Traffic Act.

52 The prosecutor made reference to the respondent's speed, submitting that the best that could be said was that the respondent was doing more than the speed limit and was accelerating as he attempted the overtaking manoeuvre. The overtaking manoeuvre was described as a dangerous manoeuvre, but the level of intoxication was said to be the 'overriding factor'.

53 The prosecution case was that this was a serious example of 'dangerous driving [sic] causing death under the influence and bodily harm whilst under the influence' having regard to a number of factors. They were (1) that the collision was solely the result of the respondent's driving, which involved both excessive speed and a dangerous manoeuvre; (2) the driving behaviour of the respondent was deliberate in the sense that he made a decision to attempt to overtake two cars out of impatience; (3) there was a deliberate consumption of alcohol; and (4) the collision resulted in the death of an 11-month-old child and bodily harm to her mother, both of whom were effectively in their own driveway at the time they were struck.

54 The prosecutor called Mrs Tania Moorby to give oral evidence. Mrs Moorby gave a harrowing oral account of the impact of the events that occurred on the day of 18 April 2008. Her evidence revealed that because of a diagnosis of severe arthritis her prospects of carrying a child were dramatically decreased. Nevertheless, in October 2006 she learned that she was pregnant. In May 2007 her child Grace was born. She was described by Mrs Moorby as 'perfect'. The consequences of losing her were eloquently stated in the following passage:

Gracie; she was my life. Jamie worked fly in and fly out so that I didn't have to work. I could stay home and be a [full-time] mum. Everything I did revolved around my little girl. I loved being a mum. I am and always will be so proud to be Gracie's mum. My life will never be the same. Nothing I do is the same as it was before that day.

Until that moment, I loved my life; now I hate it. I wake up every morning facing a day without my little Grace. On 18 April I woke up with a beautiful baby, a devoted husband and a home I loved. On 19 April I woke up to a shattered husband, my princess gone and a house I can't live in. I struggle daily with having to rebuild my life. I don't want to rebuild my life because I loved the life I had.

55 The sentencing judge first recounted the facts of the case. His Honour concluded that the consequences of the respondent's behaviour had been devastating. He made reference to the victim impact statements of both Mr and Mrs Moorby.

56 The sentencing judge thought, however, that there was considerable mitigation in relation to the matter. He made reference to the respondent's pleas of guilty at the earliest possible date, but noted that the guilty pleas had to be seen in the context that the driving of the respondent was observed by a large number of people 'who all speak with one voice about the nature of that driving'. Further, it was a scientific fact that the respondent was under the influence of alcohol and, accordingly, the case against him was a very strong one.

57 The sentencing judge took account of other matters of mitigation, including those contained within a pre-sentence report and the report of Dr Watts. His Honour noted the prior record of the respondent, but thought that the extent to which he could take account of the reckless driving charge was minimal. He concluded that the fact that there were no offences recorded against the respondent other than traffic matters went to his credit.

58 The sentencing judge made reference to the report of Dr Watts, to counselling undertaken by the respondent at Holyoake and other steps he had taken to address his drinking problem. His Honour did, however, consider that a disturbing feature of both the Dr Watts' report and the pre-sentence report was that the respondent appeared to play down his involvement in the accident.

59 The conclusion reached by the sentencing judge was that the case deserved to be ranked 'on culpability towards the higher end of the continuum of low to high'. His Honour did not think that personal deterrence was a matter of great relevance and accepted that the respondent was remorseful. He said that he thought the incident would be a salutary lesson for the respondent for the future. The sentencing judge acknowledged, however, that general deterrence was the important aspect of the sentencing process in cases of this nature.

60 In the end, the sentencing judge considered that having regard to the respondent's age, remorse, rehabilitation, prospects of rehabilitation and all the circumstances of the case the effective sentence in respect of the s 59(1)(a) offence should be one of 34 months and that in respect of the offence under s 59A(1)(a) 10 months. The 10-month sentence was made cumulative upon the first sentence, making a total of 44 months.

61 There is one ground of appeal upon which leave has been granted. It is in the following terms:

1. The sentences imposed were so inadequate as to manifest error.

(a) The offences were extremely serious and at the higher end of the range for offending of this type in that when the incident occurred -

the offender's blood alcohol level was 0.166 grams of alcohol per 210 litres of breath at the time of driving
the offender was travelling at excessive speed and
the offender was attempting to overtake two vehicles one of which had its indicator activated and had commenced to turn right.

(b) There were few mitigating factors that decreased the culpability of the offender.

(c) The sentences individually and in total failed to reflect adequately the need for:

62 This is a prosecution appeal in relation to a sentence imposed after 27 April 2008. That was the date upon which s 41(4)(b) of the Criminal Appeals Act 2004 (WA) was amended to abolish the 'double jeopardy principle' previously applicable to prosecution appeals. There is therefore no question of double jeopardy which needs to be considered in this case: see The State of Western Australia v Richards [2008] WASCA 134; The State of Western Australia v Porter [2008] WASCA 154 [21] (Miller JA).

63 It is also the case that any sentencing range that may have been established under the transitional provisions for offences of the type committed by the appellant is applicable to the determination of this appeal. It is not suggested that the case falls into the 'worst category' and that different considerations therefore apply: The State of Western Australia v BLM [2009] WASCA 88 [43] (Wheeler & Pullin JJA).

64 There have been no previously decided cases under s 59(1)(a) of the Road Traffic Act. Section 59 was previously the offence of dangerous driving causing death (the heading to s 59 still contains that reference) and there are numerous cases that deal with that offence. There are also numerous cases which deal with offences of motor vehicle manslaughter. From these cases, comparable ranges of sentence can be ascertained.

65 The nearest case to an offence under s 59(1)(a) of the Road Traffic Act is one under s 59(1)(b). Such a case was The State of Western Australia v Gibbs [2009] WASCA 7, where the respondent had been convicted of two counts of dangerous driving occasioning death in circumstances of aggravation. He had been sentenced to an aggregate term of 4 1/2 years' imprisonment. His driving involved driving at a grossly excessive speed. An appeal against the inadequacy of the sentence was dismissed by a majority. I would have allowed the appeal and increased the sentence to one of 5 years 3 months' imprisonment.

66 In The State of Western Australia v Gibbs, both Steytler P at [60] and I at [85] concluded that motor vehicle manslaughter cases are of assistance when considering standards of sentencing in cases under s 59(1)(b) of the Road Traffic Act. That is because the legislature has now seen fit to equate the maximum sentence for manslaughter and that for 'dangerous driving causing death' in circumstances of aggravation. (I have used the term 'dangerous driving causing death' to incorporate driving a motor vehicle which is involved in an incident occasioning the death or grievous bodily harm of another person. I consider the position to be the same whether it is an offence under s 59(1)(a) or s 59(1)(b) of the Road Traffic Act.)

67 Considerable emphasis was placed at the hearing of the appeal on the review of sentences for motor vehicle manslaughter which was contained within the judgment of Buss JA in Penny v The State of Western Australia [2006] WASCA 173; (2006) 33 WAR 48. At [16] McLure JA summarised that review in the following terms:

Buss JA reviews the principal authorities in this state relating to sentences for motor vehicle manslaughter. The sentences range from three years' imprisonment to 10 years' imprisonment, all of which were imposed prior to the commencement of the Sentencing Legislation Amendment and Repeal Act 2003 (WA). The transitional provisions of that Act provide that a sentencing court must now impose a term that is two-thirds of the fixed term that would have been imposed before the commencement of that Act. A range of three years to 10 years' imprisonment under the former provisions corresponds with a range under the transitional provisions of two years to six years and eight months' imprisonment. In the two cases where a sentence of 10 years' imprisonment was imposed, one followed a trial so there was no discount for a plea of guilty (Punch v The Queen (1993) 9 WAR 486) and the other involved conduct resulting in the deaths of two innocent road users (White v the Queen [2003] WASCA 197; (2003) 39 MVR 157).

68 This review preceded the decision in Taylor v The State of Western Australia [2007] WASCA 218; (2007) 177 A Crim R 81 where an aggregate sentence of 8 years' imprisonment was upheld on appeal. The appellant was travelling at a speed not less than 40 km per hour above the speed limit and possibly as much as 60 km per hour above it. He collided with a motor vehicle containing five persons, all of whom were killed. His driving ability was impaired by drugs. Two sentences of 4 years' imprisonment on each of two counts were cumulated to make the term of 8 years. It was a particularly bad case, but what I said in that case at [52] is largely applicable to the instant case:

Despite the appellant's youth, pleas of guilty, remorse and generally good antecedents, he typifies the attitude of some young people driving on public roads today. Deterrent sentences are demanded in cases such as this, and whilst personal factors are extremely important in determining the ultimate sentences to be imposed, they are but one aspect of the sentencing process.

69 In the present case, the respondent's driving contained three aggravating aspects. The first was that he was driving at a time when he had a blood alcohol level of 0.166%. The second was that he was travelling at a speed in excess of the 50 km per hour limit which is set down for residential areas. The third is that he undertook a dangerous manoeuvre to overtake two vehicles in front of him and accelerated heavily to do so.

70 In my opinion, it is no answer to this appeal to say that the respondent's culpability was lessened by reason of the fact that he had consumed alcohol on the night/early morning prior to the accident and was in a different position from a person who had gone out drinking and had then driven home whilst affected by alcohol. On any view of it, with a blood alcohol level of 0.166%, the respondent must have known that he was incapable of getting behind the wheel of a motor vehicle on the day of the accident. His counsel accepted as much when making submissions to the sentencing judge.

71 The respondent must have consumed a huge amount of alcohol in the early hours of the morning of 18 April 2008 to have ended up with a blood alcohol level of 0.166% at approximately 1.00 pm on that day. There was no evidence that he consumed any alcohol other than as he had said, namely that he had finished drinking at between 2.00 am and 3.00 am. Nevertheless, it seems remarkable that he could have had such a high blood alcohol level over 10 hours after his last drink.

72 The respondent must have known from his condition that he was incapable of driving on the roadway. Notwithstanding this, he did so, and did so dangerously. He undertook a dangerous manoeuvre to overtake two vehicles in a residential area. Speed limits of 50 km per hour are imposed in residential areas to protect the residents of those areas. Clearly, the respondent was driving in excess of that speed when he attempted the overtaking manoeuvre. Witnesses were unable to pinpoint what his speed was, but they heard heavy acceleration which was consistent with excessive speed.

73 The consequences of the respondent's driving were horrific. The death of an 11-month-old infant and injury to her mother were direct consequences of the respondent's driving on the day in question. In all the circumstances of the case, a sentence of general deterrence was clearly called for.

74 The general purposes of criminal punishment are set out in Veen v The Queen [No 2] [1988] HCA 14; (1988) 164 CLR 465 per Mason CJ, Brennan, Dawson and Toohey JJ in the following passage at 476:

The purposes of criminal punishment are various: protection of society, deterrence of the offender and of others who might be temped to offend, retribution and reform. The purposes overlap and none of them can be considered in isolation from the others when determining what is an appropriate sentence in a particular case. They are guideposts to the appropriate sentence but sometimes they point in different directions.

75 In the present case, the court was not concerned with the protection of society. Nor was it concerned with personal deterrence of the offender. It was however, concerned with general deterrence of others and with retribution and reform. Of these three factors, it seems to me that general deterrence and retribution weigh very heavily.

76 The present case is one in which I would repeat what I said in The State of Western Australia v Gibbs at [89]:

[T]he provision of a maximum sentence of 20 years' imprisonment in cases where death has been occasioned in circumstances of aggravation is an indication that the legislature is truly endeavouring to reflect the value which is to be placed upon human life. Whilst all other sentencing considerations are always relevant, this issue (the value to be placed upon human life) is of particular consideration in cases of motor vehicle manslaughter and dangerous driving occasioning death. It is, in my opinion, something that needs to be reflected in the sentences to be imposed in the present case.

77 The offence under consideration in this case is not one of dangerous driving causing death in circumstances of aggravation, but rather one of driving occasioning death in circumstances where the driver was at the time of the incident under the influence of alcohol to such an extent as to be incapable of having proper control of his vehicle. However, the maximum penalty applicable to the offence is exactly the same as it is in the offence of dangerous driving causing death in circumstances of aggravation and in cases of motor vehicle manslaughter.

78 In my opinion, Parliament has seen fit to impose a maximum term of 20 years for the offence committed by the respondent in an endeavour to reflect the value of human life. That aim is underlined by the tragedy that occurred in the present case.

79 Having regard to the general range of sentences applicable to manslaughter cases and having regard to the particular facts of the present case, it is my opinion that the sentence imposed by the sentencing judge on the s 59(1)(a) count was manifestly inadequate. A sentence of 34 months' imprisonment for that offence simply failed to reflect the importance of general deterrence and retribution. In my opinion, an appropriate sentence under the transitional provisions would have been 4 years' imprisonment. Counsel for the appellant did not suggest that the sentence of 10 months' imprisonment imposed on the offence under s 59A(1)(a) of the Road Traffic Act required any alteration, but only that it should be made cumulative upon the sentence upon the s 59(1)(a) offence. I would therefore resentence the respondent to an aggregate term of 4 years 10 months' imprisonment, being 4 years on the s 59(1)(a) offence and 10 months on the offence under s 59A(1)(a).

80 If it was not for the majority decision in BLM, by which I am bound, I would have sentenced the respondent to 6 years' imprisonment for the offence the subject of the indictment. I would also have increased the sentence on the s 59A(1)(a) offence the subject of the s 32 notice. In my opinion, a sentence of 15 months would have properly reflected the gravity of that offence, given that it would be served cumulatively. This would have made an aggregate sentence of 7 years 3 months. However, it is not possible to fix the sentences at that level because of the majority decision in BLM.

81 As I observed in BLM (at [281]), the requirement to sentence in the ordinary case within a range established under the transitional provisions, leads to an artificially low sentence. It perpetuates the myth of 'truth in sentencing'. When regard is had to the 20 year maximum for an offence under s 59(1)(a), it is difficult to see how a sentence of 4 years' imprisonment bears a reasonable proportion to the maximum available. The criminality of the respondent surely deserves a greater sentence than that which is available.

82 I would therefore allow the appeal, quash the sentence on the s 59(1)(a) count and substitute for it a sentence of 4 years' imprisonment. The aggregate sentence would therefore be 4 years 10 months' imprisonment. The date upon which it takes effect remains the same and the respondent remains eligible for parole.

Legislation Amendment and Repeal Act 2003

THE STATE OF WESTERN AUSTRALIA -v- BUTLER [2009] WASCA 110 (25 June 2009)

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Judgment (116 paragraphs)

THE STATE OF WESTERN AUSTRALIA -v- BUTLER [2009] WASCA 110 (25 June 2009)

Submissions on behalf of respondent at sentencing hearing

Legislation Cited (3)

Cases Cited (6)