THE STATE OF WESTERN AUSTRALIA -v- STALTARI [2024] WASCA 141 (12 November 2024)

1. The facts as stated by the prosecutor at the sentencing hearing were largely accepted. There were some qualifications, which the sentencing judge acknowledged and dealt with in her findings of fact. The facts as found by the sentencing judge can be summarised as follows.
2. On the evening of 23 February 2021, a well‑developed tree limb broke away from a mature tree and fell on to the South Western Highway approximately 2.5 km north of Harvey. The trunk of the tree limb lay primarily across the southbound lane, with the smaller, upper foliage on the northbound lane. This part of the South Western Highway is a sealed single two‑way carriageway, with opposing lanes separated by a double white line. The speed limit on this section of the Highway is 90 km per hour.[1]
3. A driver who was travelling south on the South Western Highway saw the hazard as he approached. He parked his vehicle approximately 50 m north of the tree limb by the side of the road and activated his hazard lights. He then exited his vehicle and stood in the northbound lane, with the flashlight on his mobile telephone activated to warn oncoming traffic of the hazard.[2]
4. Earlier that day, the respondent left his home in Kalamunda. He was driving a silver Ford Falcon sedan. He filmed three mobile telephone videos of himself between 5.01 pm and 5.31 pm. In each of these videos, he was holding a can of beer in his hand as he was driving the car.[3]
5. Later that evening, as he was driving on the South Western Highway, he filmed the dashboard of his vehicle including the speedometer, which showed a speed of approximately 120 km per hour. That video was taken at 11.41 pm. He was recorded at that time saying 'I honestly have no fucking idea where the fuck I am, but it's all good. We're lurking.'[4]
6. At about 11.57 pm, that is, 16 minutes after the last video, the respondent drove southbound on the South Western Highway towards the tree limb. The man with the flashlight had maintained his position in the northbound lane and pointed his flashlight towards the respondent. At this stage, the man's vehicle was still parked by the road with the hazard light activated. The respondent continued to drive towards the man with the flashlight, without decreasing his speed. He then crossed to the incorrect side of the road, causing the man with the flashlight to run from the road to avoid being struck.[5]
7. At this time, Mr Steven Pinter was driving northbound in his grey Holden Calais, approaching the fallen tree limb on the correct side of the road. Mr Pinter decreased his speed from 67 km per hour to 32 km per hour in the 2.5 seconds before impact.[6]
8. The respondent drove over the smaller, upper foliage of the tree limb as he travelled on the incorrect side of the road towards Mr Pinter's car. The respondent's vehicle and Mr Pinter's vehicle collided in the northbound lane of the carriageway. That is, the respondent's vehicle was still on the wrong side of the road at the point of impact. At the time of the collision, the respondent was travelling at approximately 108 km per hour, approximately 18 km per hour over the posted speed limit for that section of the road.[7]
9. Mr Pinter sustained multiple injuries that resulted in his death at the scene.[8]
10. The respondent also received injuries and was conveyed to Royal Perth Hospital. He provided a blood sample for analysis at 8.10 am the following morning. That sample was analysed with a blood alcohol content level result of 0.019%. Analysis also revealed a result of 3.7 milligrams of tetrahydrocannabinol per litre of blood, tetrahydrocannabinol being the active component of cannabis.[9]
11. On 12 August 2021, the respondent was arrested and participated in an electronic record of interview. He made no comment.[10]
12. A forensic crash investigator prepared a report. He concluded that the respondent had swerved to the left after driving past the fallen tree limb on the incorrect side of the road. The swerve was evidenced by a curved tyre mark on the road. However, the swerve was insufficient to avoid the collision, which occurred on the incorrect side of the road. As a result of the collision, Mr Pinter's vehicle was forced rearward south about 38 m. The respondent's vehicle continued in a generally southern direction for a distance of approximately 30 m, before coming to rest upside down on the eastern verge of the road.[11]
13. Analysis of data from the vehicles showed that Mr Pinter's vehicle had reduced in speed from 67 km per hour under braking to about 32 km per hour at the point of impact. The collision speed of the respondent's vehicle was in the region of 108 km per hour.[12]
14. An expert opinion as to the blood results was obtained from Professor Martin Iverson. He concluded that the respondent would likely have had a blood alcohol content level of 0.145% at the time of the incident. Professor Iverson said that this was equivalent to about 12 standard alcoholic drinks by a 100 kg man, consumed over three hours. He noted that the likely blood alcohol level at the time of the incident was associated with being highly intoxicated, and would cause sleepiness, difficulty in walking, a lack of coordination and balance, greatly impaired judgment and increased impulsiveness, risk of nausea and vomiting, possible loss of bladder control, and risk of loss of memory and losing consciousness. He further noted that the level was associated with increased errors in actual driving in simulated driving tests.[13]
15. In the opinion of Professor Iverson, the tetrahydrocannabinol level at the time of the incident would have seriously impaired the respondent's driving ability even without the presence of alcohol. He stated that the literature indicates that cannabis and alcohol together worsen driving impairment. They have an additive rather than synergistic effect. Either alone or together the cannabis and alcohol would worsen driving impairment, especially with regard to lane deviations, or 'lateral control'. According to Professor Iverson the calculated blood levels of each of the alcohol or cannabis alone was sufficient to induce serious driving impairments and those impairments would have been additive. The alcohol and cannabis would have interfered with the ability of the respondent to control his vehicle.[14]
16. The sentencing judge noted the qualifications as to the facts referred to by the respondent's counsel. In this regard, her Honour accepted that the videos filmed earlier that day by the respondent showed that he was holding a can of beer, not consuming it. She also accepted that the video which showed the speedometer was taken 16 minutes before the collision. Her Honour noted that an expert retained by the defence, Professor White, had expressed the view that the alcohol content could have been lower than 0.145% at the time of the collision, depending on the drinking pattern of the respondent in the hour prior to the accident. Her Honour accepted that the calculated blood alcohol content of 0.145% was an estimate, as was the calculation of the tetrahydrocannabinol level. However, her Honour noted that there was no dispute that the respondent was seriously impaired in his driving from both alcohol and cannabis. Her Honour also accepted that the speed of 108 km per hour was an estimate.[15]

1. Mr Pinter's daughter provided a victim impact statement. Mr Pinter had recently moved in with his daughter and her 5‑year‑old son, Mr Pinter's grandson. Mr Pinter's daughter describes the sudden loss of her father as having turned her whole world upside down. She states that her father helped her in many ways, including physically, emotionally and financially. He assisted in caring for her son and they had a great relationship. She states that both she and her son dearly miss Mr Pinter and she mourns the future years that they would have shared.[16]

1. The respondent was born in December 1996 and was aged 24 at the time of the offence. He was 27 years old at the time of sentencing. He was adopted at the age of 4 months and has a younger sister who is also adopted.[17]
2. The respondent's adoptive parents provided a stable and supportive home environment for him. The respondent has, however, always known he was adopted and this has made him feel that he does not belong. He also felt that his adoptive parents were perfectionists who had high expectations that he did not meet. He met his biological father when he was 18 and has maintained a relationship with him. He has had no contact with his biological mother and has formed a negative view about her. He was living with his adoptive parents at the time of the offence.[18]
3. The respondent initially did well at school but, over time, his performance fell. He had difficulty with concentration and reported being assessed as having attention deficit hyperactivity disorder (ADHD), though little was done to remediate the symptoms. He also reported being bullied at school. He began to truant from school in year 11. He completed year 12 but then chose to enter the workforce.[19]
4. The respondent has been employed in a variety of unskilled or semi‑skilled jobs. He has had difficulty maintaining employment due to conflict with supervisors. As at the date of sentencing, he was employed part‑time as a trade assistant with a metal fabrication company.[20]
5. The respondent is not married and has no dependants. He has a history of short‑term casual relationships. At the time of sentencing, he was in a more stable relationship with a woman who has a child. As they lived some distance apart it was only possible for them to see each other every second weekend. The respondent did not expect this relationship to continue if he received a prison sentence.[21]
6. The respondent reported a history of alcohol and polysubstance abuse to a psychologist. He told the psychologist that he started drinking alcohol socially on weekends and at parties from the age of 16 years. For a period of two years, he would binge drink heavily, often consuming two large bottles of vodka over a weekend. At the age of 18 years, he began smoking cannabis. He also began using ecstasy and other illicit drugs on the weekends. At some point, he became aware that his drug use was excessive, and he then became more interested in health and fitness. For a period, he maintained abstinence from alcohol use and ceased use of all illicit drugs apart from cannabis. However, at about the age of 22, during a period of stress, he began drinking alcohol again and using mushrooms (psilocybin). He reported that he had not used any drugs since the incident and had only consumed alcohol infrequently.[22]
7. As a result of the incident, the respondent suffered injuries that required hospitalisation. Those injuries included three fractures to the femur, a ruptured posterior cruciate ligament, a fractured patella, and a fracture to the hip. He has made a full recovery from those injuries, except for some unspecified problems with his right knee.[23]
8. The respondent has only one prior criminal conviction. It was for a minor drug offence for which he received a spent conviction.[24]
9. The respondent has the support of his family. Letters were tendered from his biological father and his adoptive parents. They spoke of his childhood difficulties and remorse for the offending. The respondent also provided a letter expressing his remorse.

1. The respondent's mental health was assessed by psychologists. There was both a court ordered report and a privately obtained report. The court ordered report, from Ms Julie Hasson, noted that the respondent's profile revealed the presence of a significant personality disorder. Such a disorder leads to inflexibility and unhealthy coping. Stress may be managed by drinking and drug use. Difficulties in managing anger and connecting and trusting others are also common. People with this disorder often think others are responsible for the challenges they experience in life. Psychological counselling is the recommended treatment.[25]
2. Ms Hasson noted that the respondent expressed no empathy for the other driver who had died. She said:[26]

He was very focussed on the impact the crash has had on him and how the delay between being charged and ultimately entering a guilty plea and waiting for the sentencing has caused him significant stress. [The respondent] also repeatedly commented that sending him to prison or punishing him now would be unnecessary as he had made so many changes in his life and moved on. He was prompted on several times [sic] to identify the changes, and eventually, he noted that he had ceased alcohol and drug use, had obtained employment, formed a relationship and returned to driving a motor vehicle after almost two years. [The respondent] emphasised that imprisonment would be too harsh and that he would struggle emotionally, and that having his driver's licence suspended would cause undue hardship, making it difficult to see his girlfriend, who lives in [a regional town], and travelling to and from work.

1. Later in her report, Ms Hasson expressed the following opinion:[27]

Predisposing factors from [the respondent's] background, which increase his risk of engaging in reckless and potentially criminal behaviour include his history of substance abuse, his life experiences, his personality structure, temperament and the cognitions and emotions associated with early childhood and life events (including adoption, his relationship with his parents and sister, bullying at school, rejection by female peers he was interested in and other negative experiences in the workplace and elsewhere), low self‑esteem, low self‑worth and questions about lovability and likability. Poor decision making and emotional and behaviour regulation difficulties are also salient factors.

1. Ms Hasson expressed the opinion that the respondent presented as being at low risk of reoffending. She identified treatment needs associated with substance use and some deficits in coping skills, problem solving, decision making, consequential thinking and managing his psychological emotional and mental health and general psychological wellbeing.[28]
2. In a privately commissioned report, Dr James McCue stated that the respondent reported that he had a poor recollection of the incident, but said he swerved to avoid a tree and 'wasn't driving like an idiot'. The respondent presented as having difficulty accepting responsibility for the crash and sought to attribute some blame to the other driver. Dr McCue said that the respondent's perceptions were that the crash was an accident caused by factors beyond his control, namely the tree limb having fallen onto the road.[29]
3. Dr McCue noted that the respondent and his mother had provided information that from the time he was an adolescent, the respondent had experienced chronic mental health issues including attention and concentration difficulties, periods of low moods, and anxiety. These issues contributed to the respondent becoming socially withdrawn for a period of time, experiencing bouts of anger and developing a pervasive low sense of self‑worth. Personality testing confirmed that the respondent has generalised anxiety, a pervasive sense of hopelessness in his life and a lack of perseverance and motivation.[30]
4. Dr McCue said that, in his opinion, the respondent has experienced a generalised anxiety disorder and major depressive episodes. The respondent's substance use is a means by which he has self‑medicated his anxiety and low mood. The psychological factors have contributed to him struggling to accept his culpability in causing the victim's death and made it difficult for him to openly express remorse.[31]
5. Dr McCue noted that if an immediate term of imprisonment was imposed, it was likely that the respondent's mental health issues would make the experience onerous for him. It was said that he was likely to experience heightened anxiety and depressive symptoms. This could prompt emotional outbursts, belligerence, or even suicidal ideation.[32]
6. The respondent had undertaken treatment sessions with Dr McCue. In these sessions there had been an attempt to provide him with anxiety and mood management strategies. The respondent required continued support to assist his entrenched negative and pessimistic view of himself and the world. His emotional immaturity was said to make it likely that he would be psychologically unprepared for the realities of the prison environment.[33]

1. The sentencing judge stated that the seriousness of the respondent's offending was demonstrated by the following factors:[34]

(1) At the time of the collision, the respondent was speeding. He was travelling at an estimated speed of 108 km per hour in a 90 km per hour speed zone.

(2) At the time of the collision, the respondent was under the influence of alcohol, estimated to be a blood alcohol content level of 0.145%, which seriously impaired his driving ability.

(3) At the time of the collision, the respondent was also under the influence of cannabis, which also seriously impaired his driving ability.

(4) The respondent was driving on the wrong side of the road. Albeit he drove on to the wrong side of the road in order to negotiate a hazard, he did not do so with appropriate care or attention.

1. The sentencing judge noted the following factors in mitigation:[35]

(1) The respondent pleaded guilty. Her Honour accepted that this was an acceptance of responsibility and was evidence of remorse. She accepted that the respondent pleaded guilty at an early opportunity and allowed a reduction pursuant to s 9AA of the Sentencing Act 1995 (WA) of 20% from the sentence that she would otherwise have imposed had the respondent been found guilty after trial.

(2) The respondent was 24 years of age at the time of the offending. Her Honour accepted that youth was a mitigating factor.

(3) The respondent had only one prior conviction for possession of cannabis in 2016, for which he was fined and received a spent conviction. He was, effectively, a person of prior good character.

(4) Her Honour accepted that the respondent's mental health was relevant and noted that he had a significant personality disorder. She also noted in this regard that the respondent had expressed no empathy for the other driver, but that Dr McCue had said that his ability to express remorse was compromised by his belief that he was not driving dangerously.

(5) The respondent was considered to be at low risk of reoffending and had taken some steps towards his rehabilitation. Personal mitigation was said to be of lesser significance.

1. The sentencing judge then went on to note that considerations of general deterrence remained important. As to whether the respondent's mental health reduced the need for general deterrence, her Honour said:[36]

In this case you knew what you were doing, [respondent]. You appreciated the gravity of your actions. The moderation of general deterrence is very small in this case. Furthermore, you voluntarily ingested both alcohol and cannabis. This is not mitigating.

1. Her Honour went on to review a number of comparable cases. In particular, she referred to Timbrell v The State of Western Australia [No 2];[37] Kirby v The State of Western Australia;[38] Smith v The State of Western Australia;[39] Paulose v The State of Western Australia;[40] and Rhodes v The State of Western Australia.[41]
2. The sentencing judge noted that, in submissions, defence counsel had suggested that there were extenuating circumstances that put the respondent's level of culpability at the lower end of the range. Her Honour said that she could not accept that submission, and that this case was not one of mere inattention or a momentary lapse of judgment. The respondent drove his vehicle above the posted speed limit and whilst he was seriously impaired by alcohol and cannabis. She said that 'this was an abrogation of [the respondent's] responsibility as a driver'.[42] Later, her Honour said:[43]

As a driver of a motor vehicle you cannot drive whilst under the influence of alcohol and cannabis to such an extent that it seriously impairs your driving ability. As a driver of a motor vehicle you cannot drive at a speed exceeding the posted speed limit in the circumstances that were presented to you on that evening.

1. The sentencing judge concluded that the seriousness of the offending and the importance of general deterrence were such that the only appropriate disposition was a term of immediate imprisonment. Taking into account all the matters that she referred to, her Honour decided that the seriousness of the offending justified a sentence of 3 years' immediate imprisonment. Her Honour considered that the circumstances of the offending were so serious that it was inappropriate to suspend the sentence. An order was made that the respondent be eligible for parole. The respondent was also disqualified from holding a driver's licence for three years.[44]

1. There is one ground of appeal. It is as follows:[45]

The sentencing judge erred by imposing a sentence of 3 years' imprisonment for the offence of dangerous driving causing death which was so inadequate as to manifest error, having regard to:

(a) the maximum penalty for the offence;

(b) the serious nature of the offence and the circumstances in which it was committed;

(c) the need for the sentence to adequately reflect general deterrence as well as appropriate punishment for offending of this nature;

(d) the personal circumstances of the respondent; and

(e) the requirement that the sentence be consistent with the standards of sentencing customarily observed for offending of this nature.

1. The appellant notes that the respondent's blood alcohol content fell just short of the level at which he would have been deemed to be incapable of the proper control of a vehicle.[46] Had the appellant reached this level, he would have committed a more serious form of the offence and been liable to the higher maximum penalty applicable for that offence. The appellant does not suggest that the respondent should be punished as if he had committed the more serious offence but does say that the high level of alcohol together with the cannabis is indicative of the seriousness of this offence and the level of impairment suffered by the respondent.[47]
2. The appellant accepts that there is no tariff for offences of dangerous driving occasioning death contrary to s 59 of the Road Traffic Act, however the following cases were referred to as being useful comparators: Kirby; Smith; Paulose; Rhodes; Kershaw v The State of Western Australia;[48] Glasfurd v The State of Western Australia;[49] and The State of Western Australia v Tittums.[50]
3. The appellant submits that the respondent's sentence of 3 years' imprisonment was less than the sentence imposed for individual counts of dangerous driving occasioning death in Kershaw, Kirby and Rhodes despite the offence in the present case being at least or substantially more serious in terms of the impairment of the respondent's ability to drive and, in the case of Kershaw, the inherent danger in the manner of driving.[51]
4. The appellant submits that whilst the respondent was not impaired to such a degree as to have been incapable of the proper control of a vehicle and thus not subject to the higher maximum penalty, the respondent's ability to drive and ability to assess the danger of his manner of driving was significantly impaired by his voluntary consumption of alcohol and cannabis such that he was not far from the threshold that would attract the higher penalty. The respondent's degree of impairment was comparable to, if not greater than, that in Tittums and greater than that in Glasfurd.[52]
5. The appellant submits that the respondent's consumption of alcohol and cannabis, and the extremely dangerous manner of driving in disregarding the warning of the driver standing on the road and proceeding to drive around the fallen tree at excessive speed late at night, places this offence in the upper part of the range of seriousness of offences of dangerous driving occasioning death not committed in circumstances of aggravation.[53]
6. The appellant submits that the sentence imposed fails to properly reflect the serious aggravating features of the respondent's conduct, notwithstanding that those features did not attract the higher statutory penalty. The sentence imposed, when compared with sentences imposed or upheld in cases involving similar offending and with similar aggravating features, was so inadequate as to manifest error.[54]

1. The respondent accepts that the sentence imposed on him was lenient, but submits that the appellant's contention that it was not consistent with the standards of sentencing customarily observed for offending of this nature has not been made out.[55]
2. The respondent accepts that his speeding at the time of the collision, the serious impairment of his driving ability as a result of voluntary substance abuse, and the fact that he was on the wrong side of the road, were all facts that were open to the sentencing judge to identify as being aggravating. The respondent also accepts that it was open to the sentencing judge to characterise the respondent's driving as being more than a momentary lapse of judgment and an abrogation of his responsibility as a driver. However, these factors, even when taken together, are said not to support a conclusion that the sentence imposed on the respondent was manifestly inadequate, particularly when regard is had to the mitigating factors.[56]
3. The respondent submits that whilst death is a relevant factor, it is common to all offences of this nature and what distinguishes one case from another will usually be the culpability of the driver involved. The respondent notes the comment of Owen JA in Barron v The State of Western Australia,[57] that offending of this type is quintessentially an area where the discretion residing in the first instance judicial officer must be accorded due respect.[58]
4. As to comparable cases, the respondent submits that Paulose, Glasfurd and Tittums provide no useful guidance having regard to the different circumstances of those cases. As to the other cases, the respondent submits that when the facts of those cases are properly considered as a whole, they do not demonstrate that the sentence here was manifestly inadequate. To the contrary, the sentence of 3 years' imprisonment was broadly consistent with the sentences imposed in those cases.[59]
5. The respondent also contends that in the event that the court considers that the sentence is manifestly inadequate, the appeal should nonetheless be dismissed in the exercise of the residual discretion. In written submissions, the respondent relied on the failure of the prosecution to do what was reasonably required to assist the sentencing judge to avoid the alleged error. This was said to arise in two ways. First, the prosecutor who appeared at the time of sentencing did not submit to the sentencing judge that the offending was at the upper end of the range of seriousness for offences of this type, as has now been contended by the appellant on appeal. Secondly, the appellant's submissions to the sentencing judge did not identify or address any relevant comparable cases. Oral and written submissions to the sentencing judge were relatively brief and addressed the factors bearing on the seriousness of the offending, but did not include a submission as to the place of this offence on the scale of seriousness.[60]
6. At the hearing of the appeal, the question was raised as to whether there was an alternative basis for exercising the residual discretion on the grounds of delay in the hearing and determination of the appeal. Senior counsel for the respondent suggested that the respondent's status as a prisoner whose sentence was the subject of a pending State appeal may have prejudiced him in obtaining access to programs within the prison system.[61] He sought, and was granted, an opportunity to obtain further evidence to substantiate this submission. Senior counsel subsequently informed the court that the respondent did not seek to file any affidavit material to support this contention and did not intend to make any submissions as to whether the respondent's status as a respondent to a State appeal had adversely affected his access to treatment or programmatic intervention (by reason of any delay or more generally). Accordingly, it is not necessary to consider this contention further.

1. The general principles governing an assessment of whether an individual sentence of imprisonment is manifestly inadequate as to the type or length of a sentence are well established and need not be fully set out here.[62]
2. For present purposes, it is sufficient to emphasise that, in determining whether a sentence is manifestly inadequate, regard must be had to the maximum sentence prescribed by law for the relevant offence, the standards of sentencing customarily observed with respect to the offence, the place which the offender's criminal conduct occupies on the scale of seriousness of offences of the kind in question, and the personal circumstances of the offender.
3. It is well recognised that there is no established range of sentences for offences of this type. This court recently reviewed the customary sentencing standards for the offence of aggravated dangerous driving occasioning death in Glasfurd. In that case, the court noted:[63]

As to the comparable cases, there is no tariff for offences of this nature because of the wide variety of circumstances in which they can occur and the differences in the personal circumstances of individual offenders. The disposition in a particular case is always sensitive to the individual circumstances of the offending and of the offender. Sentencing for an offence involving the death of a victim is inherently difficult because of the recognition of the value of a human life and the almost impossible task of compensating for its loss.

It is difficult to identify sentences that are commonly imposed for an offence of dangerous driving occasioning death. This is quintessentially an area in which the discretion residing in the first instance judicial officer must be accorded due respect.

1. Although those statements were made in respect of the aggravated offence, they are equally applicable to the non‑aggravated form of the offence.

1. Section 59(1) of the Act relevantly provides:

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; or

(ba) while under the influence of drugs to such an extent as to be incapable of having proper control of the vehicle; or

(bb) while under the influence of alcohol and drugs to such an extent as to be incapable of having proper control of the vehicle; or

(b) in a manner (which expression includes speed) that is, having regard to all the circumstances of the case, dangerous to the public or to any person, the driver commits a crime and is liable to the penalty in subsection (3).

1. Section 59(3) relevantly provides that a person convicted on indictment of an offence against s 59(1)(b), where the offence is not committed in circumstances of aggravation but the person has caused the death of another, is liable to 10 years' imprisonment. Circumstances of aggravation include driving without a valid driver's licence and driving at more than 30 km per hour over the speed limit.[64] Aggravated dangerous driving causing death attracts a maximum penalty of 20 years' imprisonment.[65] The higher maximum penalty of 20 years imprisonment is also applicable to offences of driving causing death where the person is under the influence of alcohol or drugs or both to such an extent as to be incapable of proper control of the vehicle (s 59(1)(a), (ba) and (bb)). That difference in penalty is relevant when considering other cases. Generally, given the difference in maximum penalty, cases that attract the higher penalty will have reduced relevance.
2. In the present case, the circumstances of the offence placed it at the upper end of seriousness for offences of this type. This was not a momentary aberration or a mere failure to react to a sudden hazard. The respondent must have been driving for some time prior to the collision with a very high blood alcohol content level and whilst under the influence of cannabis. He had voluntarily consumed a large quantity of alcohol and cannabis prior to the incident. He had filmed himself driving with a can of beer in his hand some hours earlier.
3. Either the alcohol or the cannabis separately had the effect of seriously impairing the appellant's ability to drive. The expert evidence was that they would have had an additive effect. The respondent's impairment was likely to have included lack of judgment and the ability to control his vehicle. To drive in this condition was, as the sentencing judge recognised, a serious abrogation of the respondent's duty as a driver on public roads. By driving in this condition, he imperilled the safety and lives of other road users and the public generally.
4. It was suggested by the respondent that the fact that the collision occurred in a rural area was relevant, in that dangerous driving in suburban or built‑up areas is often considered to be an aggravating factor.[66] That submission loses much of its force when it is recalled that there was a pedestrian standing on the road seeking to alert traffic to the hazard and a car approaching in the other direction. The level of risk to members of the public will depend on the particular circumstances and not merely by characterising the location as urban or rural.
5. The respondent's manner of driving as he approached the tree limb on the road was also highly dangerous. He filmed himself driving at 120 km per hour approximately 16 minutes prior to the collision. The vehicle with hazard lights and the man standing with a flashlight on the road would have alerted any responsible and unimpaired driver to the danger. Any prudent and sensible driver would have slowed down to ensure that it was safe to go around the tree limb. If the respondent slowed down, it could only have been marginally. The man with the flashlight was forced to run from the road due to the speed at which the respondent was traveling. The respondent's car was still travelling at significantly over the speed limit at the point of the collision.
6. To say that the respondent was travelling at 18 km per hour over the speed limit of 90 km per hour does not adequately convey the significance of that speed. The danger did not derive from the speed alone, but the circumstances in which it occurred. The circumstances of it being at night, where the road was partially obstructed and that it was necessary, in order to drive around that obstruction, to cross a double white line onto the opposite side of the road, all demanded a very high degree of caution. To travel at the speed the respondent did whilst negotiating the tree limb, was extraordinarily dangerous.
7. As to the respondent's personal circumstances, the only factor that could attract any significant mitigation was his plea of guilty. That plea was a relatively early plea, but was not entered at the the first reasonable opportunity. The 20% discount allowed by the sentencing judge is not challenged.
8. The respondent's personal circumstances are otherwise unremarkable. At the age of 24, and 27 by the time he came to be sentenced, any allowance for youth could only be minimal. The fact that the respondent had no relevant prior criminal record and had made efforts towards rehabilitation were relevant considerations, but are not unusual for this type of offending.
9. As regards the respondent's mental health, it was not suggested that his depression, anxiety or ADHD were directly causative of the offending conduct. Whilst those conditions may have made him more likely to use alcohol and illicit drugs, that use was entirely voluntary in a legal sense, and it was accepted that it could not mitigate the offending. One consequence of the respondent's personality disorder was that it impeded expressions of remorse. He had also minimised his level of culpability when speaking to the psychologists. Nonetheless, the sentencing judge accepted, perhaps generously, that the respondent's plea of guilty was evidence of remorse.
10. As to comparable cases, the nature of cases of dangerous driving occasioning death is such that the circumstances vary widely. It may be difficult, if not impossible, to find a case that is the same in all respects. Allowances for the differences between cases will invariably have to be made. In any event, the purpose of comparable cases is to provide general guidance to ensure consistency in the application of sentencing principles. Since sentencing is a discretionary exercise the sentences imposed in other cases can never be definitive, only indicative. That is, the guidance afforded by comparable cases is flexible, rather than rigid.
11. In Kirby, the offender pleaded guilty to one count of dangerous driving occasioning death and four simple offences arising out of the same incident. She was sentenced to 4 years 6 months' immediate imprisonment for the dangerous driving occasioning death and concurrent sentences or fines for the simple offences. The offender had been drinking with her teenage daughter and her daughter's friends, before she agreed to drive her daughter and her friends to a party. The offender thought she was competent to drive but her blood alcohol content level later was found to be 0.11%. She drove her vehicle with her daughter and five other passengers inside. There were insufficient seatbelts and two of the passengers, including her daughter, were unrestrained in the rear luggage compartment. Whilst driving, the offender began to tailgate a moped and, with the encouragement of some of the passengers, tried to scare the moped driver by swerving from left to right. As a result, the offender lost control of the vehicle, causing it to roll. Her daughter was thrown from the vehicle, suffering fatal injuries. Three other passengers sustained minor injuries. After being allowed a 20% discount for the plea of guilty, the offender was sentenced to 4 years 6 months' imprisonment for the dangerous driving occasioning death. Leave to appeal on a ground alleging an error in failing to allow a greater discount for the guilty plea was refused. Another ground alleging that the sentence was manifestly excessive was dismissed. In dismissing the appeal, the court had regard to the fact that the offender's blood alcohol level was more than twice the legal limit, and that she had deliberately driven the car in a dangerous manner. The offender in that case was remorseful, had favourable antecedents, and posed little to no risk of reoffending.
12. In Smith, the offender pleaded guilty to one count of dangerous driving occasioning death. The offender was driving in a northerly direction on the Kwinana Freeway, in an area where the speed limit had been reduced to 80 km per hour due to roadworks. He failed to keep a proper look out and collided with the deceased's vehicle, which had come to a stop because of the traffic ahead of it. The collision shunted the deceased's vehicle into the rear of another vehicle stopped in front of it. The deceased died from injuries sustained in the collision. The offender's speed was 95 km per hour shortly before the collision, and 88 km per hour at the point of collision. The weather was fine, the road was dry, and the visibility was good. The offender was sentenced, after a 20% discount for a plea of guilty, to 3 years' immediate imprisonment. Leave to appeal on grounds alleging that the sentence was manifestly excessive as to type and length was refused. In that case, the offender had a prior criminal record but no offences in the eight years prior to the offence. He had expressed sympathy, regret and remorse. He was a community and family‑minded person, at low risk of reoffending. He was considered to be a good candidate for rehabilitation. In refusing leave to appeal, the court noted that the offender's driving prior to the collision was aggressive, having driven dangerously close to other vehicles.
13. In Paulose, the offender pleaded guilty to one count of manslaughter, one count of driving under the influence of alcohol occasioning grievous bodily harm, and two counts each of failing to stop and render assistance and failing to report an incident to police. The offender was sentenced, after a 20% reduction for the pleas of guilty, to 8 years' imprisonment for manslaughter, 3 years 10 months' imprisonment, reduced to 1 year's imprisonment cumulative, for the dangerous driving occasioning grievous bodily harm, and concurrent terms of imprisonment for the other offences. Given that the offender was charged with manslaughter, which carries a statutory penalty of life imprisonment, the utility of this case is limited.
14. In Rhodes, the offender was convicted, after trial, of one count of dangerous driving occasioning death. The offender had been driving erratically before stopping at a red traffic signal. She and the driver of another vehicle revved their engines while stopped at the traffic lights. She then launched her vehicle into the intersection, reaching a speed of between 52 km per hour and 55 km per hour in the space of about 14 m, before colliding with another vehicle that was passing through the intersection, killing the driver of that vehicle and injuring passengers in the deceased's vehicle and in her own vehicle. The offender was aged 27 at the time of the offence, and 29 when sentenced. She was sentenced to 4 years 6 months' immediate imprisonment. Leave to appeal against that sentence was refused.
15. In Kershaw, the offender pleaded guilty to two counts of dangerous driving occasioning death. He had fallen asleep while driving a prime mover and drifted onto the shoulder of the road, striking the two victims and their vehicles. The offender was sentenced to 4 years' immediate imprisonment for each offence and a total effective sentence of 5 years' immediate imprisonment. An appeal against this sentence was dismissed. The offender was not affected by drugs or alcohol and had not been speeding. He was genuinely and extremely remorseful.
16. Glasfurd involved an offender who pleaded guilty to aggravated dangerous driving occasioning death, aggravated dangerous driving occasioning grievous bodily harm, and four counts of aggravated dangerous driving occasioning bodily harm. It is unnecessary to refer to the facts of this case, as neither the offences nor the offending is meaningfully comparable. The same can be said of Tittums, which involved an offender who pleaded guilty to three counts of aggravated dangerous driving occasioning death and one count each of failing to report the incident and failing to render assistance.
17. To the extent that the comparable cases are useful, it is noteworthy that the sentence of 3 years' immediate imprisonment imposed in this case was less than the sentence imposed for individual counts of dangerous driving occasioning death in Kershaw, Kirby and Rhodes, despite the offence in this case being more serious in terms of the impairment of the respondent's ability to drive. The inherent danger in the respondent's manner of driving was also more serious than in Kershaw.
18. Senior counsel for the respondent submitted that the deliberateness of the dangerous driving in Kirby, Rhodes and Smith was a factor that could be viewed as placing those cases into a more serious category. That submission cannot be accepted. There are no sub‑categories within the range of offences of this type. Each case must be viewed having regard to all of the relevant factors. We are unable to accept that the respondent's manner of driving in this case was less serious than that in the cases referred to. Indeed, in some respects, in particular the level of intoxication, it was plainly more serious.
19. Nor can the respondent derive any assistance from the fact that the sentence in Smith was the same as that imposed on him. The refusal of leave to appeal in Smith means only that the claim that the sentence in that case was manifestly excessive had no reasonable prospects of success. To say that a sentence is not arguably excessive does not imply that it is otherwise an appropriate sentence. The sentence in Smith cannot, therefore, properly be viewed as indicative of the appropriate range of sentences for offences of this type.
20. The circumstances of the offence in this case demanded a starting point that would, after making reductions for the plea of guilty and other mitigating factors, produce a sentence significantly higher than that imposed on the respondent. Having regard to the maximum statutory penalty of 10 years' imprisonment, the very serious circumstances of the offence, the personal circumstances of the respondent and the guidance afforded by comparable cases, the sentence of 3 years' immediate imprisonment was unreasonable or plainly unjust.
21. The appellant has established that the sentence in this case was manifestly inadequate.

1. This court has a residual discretion under s 31(4)(a) of the Criminal Appeals Act 2004 (WA) not to interfere with a primary judge's exercise of the sentencing discretion in the context of a State appeal, notwithstanding that appellable error has been established. A respondent to a State appeal against sentence does not bear an onus to establish that the residual discretion should be exercised in his or her favour. Rather, it is incumbent on the State to negate any reason why the residual discretion of this court not to interfere should be exercised.[67]
2. The difference in the approach of this court between offender appeals against and State appeals against sentence is explicable by the purpose underpinning each category of appeals. Offender appeals are concerned with the correction of error in the particular case. State appeals are concerned with establishing principles for the guidance of sentencing judges.[68]
3. The respondent submits that the prosecutor at sentencing failed to assist the sentencing judge by not making submissions regarding the level of seriousness or referring to comparable cases. This is said to justify an exercise of the residual discretion to dismiss the appeal, even if it is established that the sentence was manifestly inadequate.
4. The prosecutor did not expressly state in submissions to the sentencing judge that the offending in this case was towards the upper end of the range of seriousness. Nor did she refer to any comparable cases. She did refer to the offence being serious and that a suspended sentence was not appropriate. She also emphasised the respondent's impairment due to alcohol and drugs, and the speed and circumstances in which the collision occurred. All of these matters enabled the trial judge to make her own assessment of the seriousness of the offending. Such an assessment is essentially an evaluative one that does not depend on any contention made by counsel.
5. The role and duty of the prosecution is to draw to the attention of the judge what it is submitted are the facts that should be found, the relevant principles that should be applied, and what has been done in other (more or less) comparable cases. As was noted by the High Court in Barbaro v The Queen,[69] unless a sentencing judge gives some preliminary indication of the sentence which he or she intends to impose, there can be no occasion for the prosecution to anticipate possible error and make some correcting submission. It is neither the role nor the duty of the prosecution to proffer a statement of the specific result which counsel considers should be reached, or a statement of the bounds within which that result should fall.[70] In the circumstances of this case, there is no merit in the suggestion that the failure of the prosecutor to state in terms that this was a case that fell towards the upper end of seriousness was an omission that led the sentencing judge into error.
6. As to the failure of the prosecutor to refer to comparable cases, it is part of the role and duty of a prosecutor to refer a sentencing judge to meaningfully comparable cases. However, failure to do so in this case needs to be contextualised. First, it is well known that the Director of Public Prosecutions publishes sentencing tables that set out comparable cases for different types of offences. There is such a table for dangerous driving occasioning death without circumstances of aggravation. Secondly, the sentencing judge heard sentencing submissions on 30 November 2023, and then adjourned proceedings before sentencing the respondent on 15 December 2023. That gave the sentencing judge the opportunity to refer to and consider comparable cases. That was an opportunity that she clearly availed herself of, as in sentencing she referred to a number of comparable cases, including some of those that have been referred to by the parties on this appeal. In those circumstances, the failure of the prosecutor to refer to comparable cases could not be said to have led the sentencing judge into error.
7. There was reference at the hearing of the appeal to whether there was delay by the State in prosecuting the appeal.[71] The relevance of delay in a State appeal against sentence was considered in The State of Western Australia v Marchese.[72] Relevantly, while delay may affect the exercise of the residual discretion in other ways, delay which causes prejudice to the respondent may itself provide a basis for exercising the residual discretion. As noted earlier, there is no evidence in this case of any prejudice to the respondent arising from the fact that he is the respondent to a State appeal against his sentence (whether as a result of delay or otherwise). There is no basis for exercising the residual discretion on this ground. However, something more ought to be said about delay.
8. It is to be expected that the State will be a model litigant in pursuing State appeals. This requires diligence in ensuring that any appeal is commenced within time and is prosecuted with appropriate expedition. The risk that a respondent could be prejudiced by delay is often very real. For example, the respondent may be in the process of developing a release plan that could be made redundant if the appeal is allowed and the sentence is increased.
9. In the present case, the respondent was sentenced on 15 December 2023. An appeal notice was filed on 29 January 2024. An extension was not required as this was the last day for filing an appeal (after taking into account the time over the Christmas/New Year period, when the court was closed). The appellant did not seek an urgent appeal order, notwithstanding the relative shortness of the respondent's sentence. The appellant's case was due on 25 March 2024, and an application was made for an extension. An extension was granted and the appellant's case was filed on 2 April 2024. The respondent's answer was filed on 2 May 2024. The appeal book became available on 5 June 2024. Notice of the hearing date was sent to the parties on 8 July 2024. The appeal was heard on 24 October 2024.
10. At the hearing of the appeal, senior counsel for the appellant accepted that it would have been open for the appellant to apply for an urgent appeal order. He said that that was done as a matter of course in matters where the respondent had received a non‑custodial sentence at first instance and the State was seeking a custodial sentence on appeal, or where the sentence imposed at first instance was 2 years or less and the State was seeking a longer sentence.[73] The rationale for the second category is that there is an accepted risk that for sentences of 2 years or less, the respondent may reach their parole eligibility date before an appeal is heard in the normal course. At the hearing of the appeal, it was suggested by the court that this was a conservative view and it would be more prudent to seek an urgent appeal order in cases where a sentence of 3 years' imprisonment or less was imposed at first instance, even if there has been no significant backdating of the sentence.[74]
11. This appeal could have been dealt with more expeditiously. Given the relative simplicity of the issues, it should have been possible for the appellant to file a notice of appeal earlier than the last day for doing so. It should have been possible to file an appellant's case within the time allowed. However, it must be recognised that the appeal was filed within time and that the extension to file an appellant's case was a very short one.
12. It would also have been appropriate for the appellant to have sought an urgent appeal order. Had such an order been sought, it is highly likely it would have been granted and the appeal would have been heard some months earlier than it was.
13. The delay in this particular case was not of great duration and did not cause prejudice, but the State should expect to be held to a high standard.
14. Intervention in the present case is necessary to maintain adequate standards of sentencing. Appellable error has been very clearly established and the public interest in maintaining appropriate sentencing standards for serious offending of the kind that occurred in this case counts strongly against the exercise of the residual discretion in the respondent's favour. That discretion should not be exercised here, for the reasons given.

1. This court has the necessary material to resentence the respondent.
2. The relevant facts and personal circumstances have been set out earlier in these reasons. The only additional material relied on for the purpose of resentencing was that the respondent had participated in education opportunities in prison, been a model prisoner, undertaken counselling and participated in Alcoholics Anonymous. These are factors that indicate that the respondent has continued with his efforts towards rehabilitation. That is a mitigating factor in his favour.
3. Having regard to the seriousness of the offence, a sentence of immediate imprisonment is the only appropriate sentencing disposition in this case. Like the sentencing judge, we would allow a 20% discount under s 9AA of the Sentencing Act 1995 (WA) for the respondent's plea of guilty. In our view, a sentence of 4 years 8 months' immediate imprisonment is commensurate with the seriousness of the offence and gives appropriate weight to the mitigating factors. The respondent should be made eligible for parole. The driver's licence disqualification period is not challenged.

1. For the above reasons, the following orders should be made:
   1. The appeal is allowed.
   2. The application to adduce additional evidence by the respondent is granted.
   3. The sentence imposed by the District Court on indictment number IND 1127 of 2023 is set aside and the following sentence is substituted: 4 years 8 months' immediate imprisonment.
   4. The substituted sentence is taken to have commenced on 15 December 2023.
   5. The respondent is eligible for parole.
   6. The respondent remains subject to the disqualification from holding or obtaining a driver's licence imposed by the District Court of Western Australia on indictment number IND 1127 of 2023.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[16] Victim impact statement, dated 2 November 2023.

[18] Psychological report for court, dated 11 August 2023, 2 - 3.

[19] Psychological report for court, dated 11 August 2023, 3 - 4.

[20] Psychological report for court, dated 11 August 2023, 4.

[21] Psychological report for court, dated 11 August 2023, 4 - 5.

[22] Psychological report for court, dated 11 August 2023, 5.

[25] Psychological report for court, dated 11 August 2023, 7.

[26] Psychological report for court, dated 11 August 2023, 8.

[27] Psychological report for court, dated 11 August 2023, 8.

[28] Psychological report for court, dated 11 August 2023, 10.

[29] Forensic psychological assessment and treatment report, dated 3 November 2023, 4.

[30] Forensic psychological assessment and treatment report, dated 3 November 2023, 13.

[31] Forensic psychological assessment and treatment report, dated 3 November 2023, 13 - 14.

[32] Forensic psychological assessment and treatment report, dated 3 November 2023, 15.

[33] Dr McCue also provided an addendum report (dated 23 November 2023) that clarified some of the matters in his first report.

[37] Timbrell v The State of Western Australia [No 2] [2013] WASCA 269; (2013) 240 A Crim R 1.

[38] Kirby v The State of Western Australia [2016] WASCA 199; (2016) 78 MVR 380.

[39] Smith v The State of Western Australia [2022] WASCA 170; (2022) 103 MVR 80.

[40] Paulose v The State of Western Australia [2019] WASCA 182; (2019) 90 MVR 386.

[41] Rhodes v The State of Western Australia [2022] WASCA 168; (2022) 103 MVR 90.

[46] Namely 0.15g of alcohol per 100 ml of blood, pursuant to Road Traffic Act 1974 (WA) s 59B(1)(5).

[48] Kershaw v The State of Western Australia [2014] WASCA 111; (2014) 66 MVR 551.

[49] Glasfurd v The State of Western Australia [2024] WASCA 7.

[50] The State of Western Australia v Tittums [2018] WASCA 23; (2018) 271 A Crim R 298.

[57] Barron v The State of Western Australia [2010] WASCA 27; (2010) 55 MVR 123.

[62] Kabambi v The State of Western Australia [2019] WASCA 44 [21].

[63] Glasfurd [87] - [89] (citations omitted).

[64] Road Traffic Act, s 49AB(1).

[65] Road Traffic Act, s 59(3)(a)(i).

[67] CMB v Attorney-General (NSW) [2015] HCA 9; (2015) 256 CLR 346 [33] ‑ [34], [64].

[68] Green v The Queen [2011] HCA 49; (2011) 244 CLR 462 [1]; CMB [55].

[69] Barbaro v The Queen [2014] HCA 2; (2014) 253 CLR 58 [39].

[72] The State of Western Australia v Marchese [2006] WASCA 153; (2006) 163 A Crim R 363 [31] - [36], [42], [47], [60].