Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Appeal - Criminal law - Sentence - State appeal - Totality - Turns on own facts

1 STEYTLER P: I have had the advantage of reading the judgment of McLure JA. It reflects my own reasons for joining in the decision to dismiss the appeal.

2 WHEELER JA: I have had the advantage of reading in draft the reasons for decision of McLure JA. I do not repeat her Honour's summary of the facts. I agree with her Honour's conclusion that the appeal should be dismissed. I would add only the following observations.

3 My own conclusion that the appeal should be dismissed does not depend upon the application of any special principles which apply to State appeals against sentence. Indeed, it would be my view that the respondent's sentence is in the upper range of sentences appropriate to conduct of this kind in these circumstances, and is justifiable only because there were, albeit within a short space of time, two distinct acts of reckless driving, each of which caused harm. In my view, there were very important mitigating factors which would justify a very considerable reduction in the sentence which would otherwise have been appropriate to driving demonstrating this degree of recklessness.

4 As I understand it, sentencing of the respondent proceeded on the basis that it was accepted that the immediate danger to the Yates girls had passed by the time at which he came to drive his vehicle in the way that he did. That was because there were some other persons nearby who were by then in a position to protect the girls from the armed men who were threatening to harm them. When the respondent initially became aware of the threat to the Yates girls, however, it appears that those persons were not present. His reaction was apparently first to look briefly for some kind of weapon with which he might go to their assistance and, finding nothing suitable, to jump into his car. A very short space of time elapsed between that decision and the two collisions resulting in the respondent's convictions.

5 In short, then, this was a situation in which the respondent overreacted to a very serious threat in circumstances where he had very little time for consideration. It is not surprising, in circumstances where five females, some of them very young, were being chased by three armed men, that the respondent felt it necessary to do something. It is important to bear in mind, when sentencing a person who has overreacted in such a situation, that where a person's life or the lives of others appear to be in imminent danger, ordinary members of the public, who are not trained to cope with such emergencies, cannot be expected always to react in a calm, measured, and proportionate way. It will often be appropriate to extend

considerable leniency to those who have made poor decisions when they find themselves in emergency situations which arise as a result of circumstances over which they have no control. In my view, the present was such a case.

6 McLURE JA: This State appeal against sentence was dismissed by the Court on 8 November 2007. These are my reasons for joining in that decision. The respondent was convicted on his own plea of guilty of one count causing grievous bodily harm to Sorrel Dimer (the complainant) contrary to s 297 of the Criminal Code (WA) (Code) and one count of the manslaughter of Colin Dimer (the deceased) contrary to s 280 of the Code. The respondent was originally charged with one count of causing grievous bodily harm with intent contrary to s 294(1) of the Code and murder. The State accepted the respondent's pleas of guilty to the lesser offences.

7 On 13 December 2006 Miller J sentenced the appellant to a term of imprisonment of 2 years and 8 months for the offence of causing grievous bodily harm and a term of imprisonment of 6 years for manslaughter. He ordered the sentences to be served concurrently, resulting in a total effective sentence of 6 years' imprisonment. The respondent was disqualified from driving for life and was made eligible for parole.

8 The State claims in effect that the total effective sentence breached the totality principle as a result of the failure to make the sentences wholly cumulative.

9 The sentencing judge found the facts to be as follows. At about 5 pm on 6 November 2005 the deceased, the complainant, Mrs Belinda Dimer and a number of young people were travelling along Butterworth Avenue, Koondoola in a Ford Falcon. The occupants of the Ford Falcon saw a group of five females ranging from 12 to 24 years of age from the Yates family walking along Butterworth Avenue. There was a history of animosity between the Yates and Dimer families. As the vehicle passed the five females, abuse was exchanged. Mrs Dimer, who was driving the Ford Falcon, stopped the vehicle in a driveway and got out. One of the Yates group threw a rock at the Ford Falcon and other members of the group also picked up rocks from a nearby garden bed. The deceased got into the driver's seat of the Ford Falcon and drove it further down Butterworth Avenue. He stopped the vehicle and the deceased, the complainant and another youth removed weapons from its boot. The deceased had a silver baseball bat, the complainant a samurai sword and the youth was also armed.

10 The deceased and the complainant walked towards members of the Yates group who by that stage were close to the T-junction of Butterworth Avenue and Burlinson Crescent. When the Yates group saw the armed men they ran along Burlinson Crescent towards the respondent's home in Burlinson Crescent. The respondent was a close friend of the Yates family.

11 At this time Mrs Dimer went back to the Ford Falcon and drove it around the corner of Butterworth Avenue into Burlinson Crescent and parked it. The three armed men (the deceased, the complainant and the youth) returned to the vehicle. The complainant stood near the passenger side and the deceased stood behind the vehicle.

12 The respondent had been alerted to the situation and considered the Yates group to be at risk. He got into his Holden Commodore sedan and drove along Burlinson Crescent towards Butterworth Avenue. There was varying evidence as to the speed at which he was travelling, however the sentencing judge concluded that a speed of about 50 kms to 60 kms per hour was most likely to be correct. The respondent drove his vehicle onto the wrong side of Burlinson Crescent, mounted the southern kerb in front of the Ford Falcon and travelled towards the position where the complainant was standing. The respondent's vehicle collided with the complainant, flinging him over its bonnet and causing him to break his right leg. Mrs Dimer moved the Ford Falcon to face towards Butterworth Avenue but it was still on the southern side of Burlinson Crescent. The respondent then drove off the verge and executed a right-hand U-turn in the T-junction. The respondent headed west back down Burlinson Crescent and drove across the southern kerb through a pedestrian handrail behind which the deceased was standing. The deceased was flung into the air and landed heavily on the bitumen near the front driver's side of the Ford Falcon. The respondent continued driving and clipped the passenger side of the Ford Falcon as he passed it. He drove to his residence where he collected the Yates group and drove them home. The respondent then drove to the Mirrabooka Police Station and informed police of the events.

13 The deceased was taken from the scene to a nearby house where he died as a result of a fracture of the left side of his skull.

14 There was a dispute between the parties concerning the respondent's intention. The State contended that the respondent intended to hit and harm the complainant and the deceased albeit without intending to do either grievous bodily harm. The respondent's position was that he did not intend to hit and harm the victims but that he acted with gross recklessness. After the sentencing judge indicated that in either event the offences were at the high end of the scale of seriousness, the parties accepted that there was no need for a trial of the issue. Accordingly, the sentencing judge made no factual finding as to the respondent's intent. In those circumstances, the respondent could only be sentenced on the basis that he acted with gross recklessness.

15 The respondent was aged 46 at the date of the offences. He had no relevant recent record of prior offending. The sentencing judge accepted that the respondent acted from a desire to protect the Yates children. He also accepted that the respondent was genuinely remorseful for what he had done and accepted responsibility for his actions.

16 The sentencing judge expressly considered the question whether the sentences should be made concurrent or cumulative. He said (ts 67 - 68):

There's a strong argument they should be cumulative because they were separate incidents but ... I need to look at the totality principle; that is, I must ensure that you are sentenced proportionately for the totality of the criminal conduct for which you have been responsible, and at the same time having regard to your age and your health to avoid a crushing sentence to you.

Having regard to all these factors and to the fact that you have not previously been convicted for any offence like this and all the personal things that have been mentioned, I have concluded that concurrent sentences would be sufficient to indicate the gravity of your crimes.

17 Special principles apply to State appeals against sentence. They are detailed in The State of Western Australia v Houston [2005] WASCA 167 [52] - [54] (Steytler P) and The State of Western Australia v Marchese [2006] WASCA 153; (2006) 163 A Crim R 363 [25] - [28] (Steytler P). It is sufficient for present purposes to note that State appeals are brought in rare and exceptional cases to establish some point of principle and that when a court decides to re-sentence an offender, it ordinarily gives recognition to the element of double jeopardy involved by imposing a sentence that is somewhat less than the sentence it considers should have been imposed at first instance.

18 This Court can only intervene if the appellant establishes that there has been an express or implied material error of fact or law that vitiates the exercise of the sentencing discretion. The appellant contends that the total sentence contravenes the totality principle.

19 There are two limbs to the totality principle. Firstly, the total effective sentence must 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: Woods v The Queen (1994) 14 WAR 341. Secondly, the Court should not impose a 'crushing' sentence. The word crushing in this context connotes the destruction of any reasonable expectation of a useful life after release: Martino v The State of Western Australia [2006] WASCA 78 [16].

20 The practical effect of the totality principle is ordinarily to arrive at an aggregate sentence that is less than that which would be arrived at by simply adding up all the terms appropriate for the individual offences: R v Holder [1983] 3 NSWLR 245, 260 (Street CJ). A rationale for the totality principle is that there is assumed rehabilitation and reduced demand for retribution after the initial sentence has been served.

21 The sentencing judge was correct to conclude that, subject to totality considerations, the two terms of imprisonment should prima facie be made cumulative because the offending did not fall within the one transaction rule. However, if the application of the prima facie position would result in an aggregate sentence that is not an appropriate measure of the total criminality involved in the conduct, the appropriate aggregate should be achieved, if practicable, by making the sentences wholly or partially concurrent rather than by adjusting the otherwise appropriate sentence: Mill v The Queen (1988) 166 CLR 59, 63.

22 The range of sentences customarily imposed for manslaughter involving a motor vehicle was recently considered in Penny v The State of Western Australia [2006] WASCA 173; (2006) 33 WAR 48 [80] -[87] (Buss JA). Prior to Penny the post-transitional sentencing range was between 2 years' imprisonment to 6 years and 8 months. Many of the cases involved accidents resulting in multiple deaths, a factor which aggravates the culpability of the offending. A sentence of 8 years' imprisonment was upheld in Penny where the offence was part of a continuing pattern of disobedience of the law. The sentence in this case of 6 years for manslaughter is towards the upper end of the sentencing range. Where the individual sentences sit in the range is relevant in considering totality.

23 The central question is whether a total sentence of 6 years is too low having regard to the total criminality of the respondent's offending as a whole and his personal circumstances. The motivation underlying the offences was mitigatory. The respondent was seeking to protect the Yates group from people (including the complainant and the deceased) who had armed themselves. Although that cannot justify the gross recklessness with which he acted, it ameliorates to some extent the culpability of his conduct. Having regard to the circumstances of the offending, the respondent's antecedents, his early guilty pleas and other mitigating factors, I was not persuaded that the total sentence was disproportionate to the extent necessary to permit the State appeal to be upheld.