VAN OYEN -v- KOSOVICH [2025] WASC 364 (2 September 2025)

1. As I have mentioned, Ms Van Oyen was convicted of careless driving causing death, grievous bodily harm (GBH), or bodily harm contrary to s 59BA(1) of the Road Traffic Act. That section provides as follows:

If a motor vehicle driven by a person (the driver) is involved in an incident occasioning the death of, or grievous bodily harm or bodily harm to, another person and the driver was, at the time of the incident, driving the motor vehicle without due care and attention, the driver commits an offence.

Penalty for this subsection: imprisonment for 3 years or a fine of 720 PU and, in any event, the court convicting the person must order that the person be disqualified from holding or obtaining a driver's licence for a period of not less than 3 months.

(original emphasis)

1. In this case the incident occasioned the death of another person. The offence can also be committed where a person is not killed but suffers bodily harm or GBH.
2. The offence provides for a single penalty. The rationale behind this was explained by the Minister for Road Safety in the Parliamentary debates on the Road Traffic Legislation Amendment Bill (No 2) 2015 (Bill) as follows:[1]

Rather than set differing graduated penalties, as currently applies to the related offences of dangerous driving causing death or grievous bodily harm and dangerous driving causing bodily harm, it was decided to set one broad penalty that allows the court discretion to impose an appropriate sentence based on the individual circumstances of the offence. It is envisaged that a court will set a penalty for this new offence . . . that will be relative and appropriate, giving consideration to the level of negligence and the degree of injury and giving consideration to the current graduated penalties that are available in the act for the more serious offences of dangerous driving causing death or grievous bodily harm and dangerous driving causing bodily harm.

(emphasis added)

Where s 59BA sits in the hierarchy of offences under the Road Traffic Act

1. Section 59BA is in Division 1 of Part V of the Road Traffic Act. Division 1 creates a number of offences relating to the driving of vehicles, with the offence of dangerous driving having the most significant penalties and careless driving the least.
2. Section 59BA was inserted into the Road Traffic Act by the Road Traffic Legislation Amendment Act 2016 (WA) on 21 September 2016. The explanatory memorandum to the Bill (that became that Act) indicated that the offence was inserted to 'bridge the gap' between dangerous driving and careless driving. The explanatory memorandum stated that:[2]

In order to bridge the gap between the dangerous driving and careless driving provisions, this clause inserts a summary offence to apply where a motor vehicle is involved in an incident occasioning death, grievous bodily harm or bodily harm to a person other than the driver and the manner of driving, at the time of the incident, was careless.

1. Division 1 includes s 59 which creates the offence of dangerous driving causing death or GBH. This offence is committed where a driver is involved in an incident and is under the influence of drugs or alcohol, to such an extent that they are unable to control a vehicle, or they are driving a motor vehicle in a manner that is dangerous to the public or any person.
2. Where a person is convicted on indictment (in the District Court), the maximum penalty where death has been caused is a fine of any amount and 10 years imprisonment, or 20 years imprisonment in circumstances of aggravation and mandatory driver's licence disqualification for at least 2 years.[3]
3. The offence can also be dealt with summarily in the Magistrates Court where the incident does not cause a death. Where the offence is dealt with summarily, the maximum penalty is imprisonment for 3 years, or a fine of 720 penalty units (PU) and mandatory driver's licence disqualification for at least 2 years.
4. Division 1 also includes s 59A which creates the offence of dangerous driving causing bodily harm. Like the offence created by s 59, this offence is committed where a driver is involved in an incident and is under the influence of drugs or alcohol, to such an extent that they are unable to control a vehicle, or they are driving a motor vehicle in a manner that is dangerous to the public or any person. This offence is committed where an incident occasions bodily harm.
5. In circumstances of aggravation, the maximum penalty for this offence is 10 years imprisonment and mandatory disqualification for at least 2 years. Otherwise, the maximum penalty is a fine of 180 PU, 9 months imprisonment and mandatory disqualification for a minimum period of 12 months for the first offence, and a fine of 360 PU, 18 months imprisonment and mandatory disqualification for a minimum period of 18 months.
6. The offence can also be dealt with summarily in the Magistrates Court. Where the offence is dealt with summarily, the maximum penalty is imprisonment for 3 years, or a fine of 720 PU and mandatory driver's licence disqualification for at least 18 months.
7. Section 61 of the Road Traffic Act is also part of Division 1. That offence is dangerous driving and is committed when a person drives a motor vehicle in a manner that is dangerous to the public in the circumstances. The maximum penalty for that offence is a fine of 60 PU for the first offence and for each subsequent offence a fine of 120 PU, imprisonment of up to 9 months and mandatory disqualification of at least 12 months. In circumstances of aggravation, the maximum penalty for this offence is the same as for the offence under s 59BA (the offence that Ms Van Oyen committed).
8. Section 62 of the Road Traffic Act (which is also part of div 1) creates the offence of careless driving. That offence is committed where a person drives a motor vehicle without due care and attention. The maximum penalty for that offence is a fine of 30 PU.
9. Broadly therefore the maximum penalties for dangerous driving causing death or GBH (s 59) and dangerous driving causing bodily harm (s 59A) are significantly greater than the offence committed by Ms Van Oyen: careless driving causing death, GBH or bodily harm (s 59BA), other than when they are dealt with summarily. Where contraventions against s 59 or s 59A are dealt with summarily, the maximum terms of imprisonment and fines are the same as for a contravention of s 59BA.[4] The penalty for dangerous driving in circumstances of aggravation (s 61) is the same as for a contravention of s 59BA.

1. As I have mentioned, Ms Van Oyen was sentenced by Magistrate Oliver in the Magistrates Court at Northam on 19 March 2025.
2. The facts read by the prosecutor and accepted by Ms Van Oyen (upon which she was sentenced) were as follows:[5]

(a) on Sunday, 18 February 2024, Ms Van Oyen was driving a white Toyota Camry sedan, in a westerly direction along Great Eastern Highway towards Perth, having left Kalgoorlie at approximately 8.00 am that morning;

(b) Ms Van Oyen's twin daughters aged approximately 7 years and 8 months, were sitting in the rear seats of her car;

(c) by about 11.00 am, Ms Van Oyen had reached a section of the Great Eastern Highway approximately 3.4 km east of Carrabin. That stretch of road has a speed limit of 110 km per hour. It is a single carriageway divided by an unbroken double white line. There are audio tactile markings on the road with a gravel verge and trees and shrubs on both sides of the road, approximately 15 m from the edge of the road;

(d) Ms Van Oyen's car veered off the bitumen surface to the left of the road and onto the gravel verge for approximately 35 m before being overcorrected and heading north across both lanes of the road onto the gravel verge on the other side of the road;

(e) the tyre marks of Ms Van Oyen's car continued for approximately 82 m before the left-hand rear side of the vehicle impacted with a large tree causing the vehicle to spin and strike another tree. The car flipped over and came to rest on its roof; and

(f) during the accident both of Ms Van Oyen's daughters were thrown from the car and killed. Ms Van Oyen sustained minor injuries and was taken to Merredin Hospital for treatment.

1. Counsel who appeared for Ms Van Oyen before Magistrate Oliver, Mr Ryan, submitted that Ms Van Oyen had 'closed her eyes for not even a second - two seconds' and the car had veered slightly to the left on the gravel shoulder. He submitted that Ms Van Oyen had seen that she was going to collide with a roadside marker, she overcorrected to the right which caused her car to skid and she lost control.[6]
2. Mr Ryan referred to a psychological report prepared by Ms Helen Fowler and submitted that Ms Van Oyen now suffered from post‑traumatic stress disorder (PTSD) and a prolonged grief disorder.[7] He submitted that the consequences of Ms Van Oyen's inattention had been life changing and shattering.[8]
3. Mr Ryan submitted that the prosecution had not suggested that Ms Van Oyen was fatigued. He submitted that she did all the right things, she had stopped at Southern Cross to take a break shortly before the accident.[9]
4. Mr Ryan referred Magistrate Oliver to the decision of Hall J (as his Honour then was) in Van Vught v Wilson[10] and submitted that that was the only decision he had been able to find. Magistrate Oliver noted that Hall J did not comment on the appropriateness of the sentence imposed in that case and Mr Ryan agreed.[11]
5. Mr Ryan submitted that Ms Van Oyen would require long term significant medical treatment for her mental condition and that the Magistrate could consider an intensive supervision order.[12]
6. Magistrate Oliver responded that she considered that imprisonment was the starting point.[13]
7. Mr Ryan submitted that if the Magistrate had reached the point that imprisonment was appropriate, her Honour should consider a conditionally suspended imprisonment order to facilitate the treatment of her mental health.[14]
8. The prosecutor submitted that imprisonment would be the starting point. He submitted that there was no inference that Ms Van Oyen was driving dangerously, or at excessive speed and she closed her eyes for one moment. He submitted that the prosecution concurred with Mr Ryan and a conditional term of imprisonment should be considered but that the term of any suspension should be for a significant period.[15]
9. The Magistrate then delivered her sentencing remarks.
10. Magistrate Oliver commenced by indicating that she accepted that Ms Van Oyen had entered a guilty plea at the earliest possible opportunity and she should be entitled to a discount of 25% under s 9AA of the Sentencing Act 1995 (WA) (Sentencing Act).[16]
11. The Magistrate observed that Ms Van Oyen had only had a single conviction in the past for driving without a licence in May 2023 and that Ms Van Oyen's offending was out of character. Her Honour observed, however, that it is not uncommon for offenders in the types of matters before her not to have a criminal record.[17]
12. The Magistrate referred to the psychological report prepared by Ms Fowler that stated that Ms Van Oyen was suffering from PTSD. Her Honour noted that Ms Van Oyen experienced intrusive images of her daughters' bodies at the scene and flashbacks of the incident and suffered from anxiety and depressive symptoms.[18]
13. Magistrate Oliver also referred to the victim impact statements that she had received from the father, grandmother, grandfather, two uncles and an auntie of Macey and Riley. Her Honour acknowledged the significant emotional trauma caused to all persons concerned.[19]
14. Magistrate Oliver referred to the decision of Curthoys J in Wallace v Curyer.[20]
15. The Magistrate acknowledged the inability of words or the sentencing process to comprehend the loss suffered by those affected by the death of Macey and Riley. Her Honour said:[21]

The importance of human life is something that cannot be adequately described with mere words, yet it is with words that the court must describe the sentencing process, and in the end impose a sentence. What can be said with certainty is that a human life is sacred, and for the ones left behind, the mother, the father, the grandparents, the aunties and uncles, the friends and loved ones, nothing will be the same again. Their lives will forever be broken to some extent. Time may pass, but the loss of these two children will resonate until the end of their lives.

It is not possible for me or any court to impose a sentence that could truly comprehend that loss, or compensate for that loss. No sentence I can impose will ever be adequate for those left behind. That is something the court acknowledges, but my task is governed by the law as set out in the Sentencing Act and the sentencing principles that apply to the state.

1. The Magistrate observed that the offence of careless driving causing death is undoubtably serious but it is not dangerous driving, or reckless driving.[22]
2. Magistrate Oliver noted that a term of imprisonment should not be imposed unless the seriousness of the offence was such that only imprisonment can be justified, or the protection of the community required it. Her Honour indicated that she considered that given the seriousness of the offence, a term of imprisonment was the only appropriate disposition.[23]
3. The Magistrate observed that Ms Van Oyen was driving on a relatively straight section of road when she closed her eyes for a period of time and that cause her to veer onto the shoulder. Her Honour said that Ms Van Oyen then overcorrected, losing control of the vehicle, causing it to spin, striking two trees and ending up on its roof.[24]
4. The Magistrate noted that while Ms Van Oyen's lack of attention was only momentary, that was the nature of the offence for which she had been charged and that she was in charge of a vehicle where she had young children. Her Honour observed that Ms Van Oyen's obligation to control the vehicle and exercise due care and attention was a paramount factor and she failed in that regard.[25]
5. The Magistrate said that she considered that this was a serious example of this offence as it involved the death of two children. Her Honour said that after taking into account the matters relevant to sentencing and ensuring that the sentence imposed was commensurate with the seriousness of the offence, in her view imprisonment was the only appropriate disposition.[26]
6. Magistrate Oliver said that taking into account the discount for the plea of guilty and all of the mitigating factors, she considered a sentence for each offence of 8 months imprisonment should be imposed.[27]
7. The Magistrate then acknowledged that having reached the view that imprisonment was appropriate, it was necessary for her to consider whether or not the term of imprisonment should be suspended and that required her to consider all of the relevant circumstances anew.[28]
8. Magistrate Oliver said that she took into account that this was a one-off incident and Ms Van Oyen had no prior similar offending on her record and that she had not offended again. Her Honour said she also took into account the psychological injuries that Ms Van Oyen had suffered as a result of the incident.[29]
9. The Magistrate observed that Ms Van Oyen entered an early plea and it was necessary for her to take into account general deterrence. Her Honour said that momentary inattention can cause catastrophic injury. She said that it was 'hard to reconcile the closing of one eye for a short second with the consequences that have occurred here, with the death of two young vibrant children'. Her Honour observed that it was not suggested that Ms Van Oyen was speeding and this added to the importance of ensuring that she was driving with due care and attention.[30]
10. Magistrate Oliver said that she was satisfied that Ms Van Oyen's culpability in diverting her attention when travelling at a significant speed made the case serious and were relevant to general deterrence and the seriousness of the offending, as were the consequences.[31]
11. The Magistrate concluded that when she weighed all of these matters up she was of the view that it would not be appropriate to fully suspend the term of imprisonment and that there should be a period of immediate imprisonment to mark the seriousness of the offending but that the term could be partly suspended. Her Honour then went on to impose the sentences the subject of the present appeal.[32]

Why leave to appeal is required and when it will be given

1. Under the Criminal Appeals Act 2004 (WA) (Criminal Appeals Act), a sentence imposed by the Magistrates Court may be appealed to the Supreme Court[33] on the ground that the sentence imposed was excessive.[34] Leave to appeal is required for each ground.[35] An application for leave to appeal is made under div 2 of pt 2 of the Criminal Appeals Act.
2. Leave to appeal must not be granted on a ground unless the court is satisfied that the ground has a reasonable prospect of succeeding,[36] meaning that the ground is required to have a rational and logical prospect of succeeding.[37] Unless leave to appeal is granted on at least one ground, the appeal is taken to have been dismissed.[38]
3. A grant of leave to appeal does not of itself indicate that an appeal will succeed, or even that it is more likely than not to succeed.[39] Even if a ground of appeal might be decided in favour of the appellant, the court may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred.[40]

1. Ms Van Oyen advances three proposed grounds of appeal:

(a) Ground 1: The learned Magistrate erred in imposing an aggregate sentence that did not bear a proper relationship to the overall criminality of the appellant's conduct, having regard to all relevant circumstances including those referable to the offender personally;

(b) Ground 2: The learned Magistrate erred in imposing a sentence for charge NOR 1005/24 that was manifestly excessive; and

(c) Ground 3: The learned Magistrate erred in imposing a sentence for charge NOR 1006/24 that was manifestly excessive.

1. The offence of careless driving causing death, GBH or bodily harm, of which Ms Van Oyen was convicted, is still relatively new. There appear to have been only two sentencing appeals in relation to that offence: Wallace and Jackman v Davison.[41] Both are decisions of single judges of this court, Curthoys J and McGrath J, respectively.
2. Magistrate Oliver was also referred to an appeal against conviction in Van Vught v Wilson.[42] However, as that decision was not a sentencing appeal, it is not presently relevant.
3. In both Wallace and Jackman, both Curthoys J and McGrath J referred to decisions of the Court of Appeal in relation to sentences imposed for dangerous driving contrary to s 59(1) of the Road Traffic Act. The submissions made by the parties to the appeal also referred to various sentencing appeals relating to dangerous driving offences. These included both appeals to the Court of Appeal (where the dangerous driving offence was tried on indictment in the District Court) and to single judges of this court (where the dangerous driving offence was tried summarily in the Magistrates Court).
4. Given this, before turning to consider Wallace and Jackman and the parties' submissions, it is useful to say something about some of the dangerous driving sentencing appeals referred to. In considering those sentencing appeals in relation to dangerous driving, it is important to recall that the maximum penalty for the relevant dangerous driving offences was greater than the maximum penalty for the careless driving offence committed by Ms Van Oyen.

Sentence appeals for dangerous driving offences (s 59 of the Road Traffic Act)

1. Hunt was an appeal to a single judge of this court, Jenkins J, against a conviction for dangerous driving causing death in the Perth Magistrates Court and the sentence imposed. In this case the offence had been tried summarily, rather than on indictment in the District Court.
2. The appellant was driving at 80 km per hour in a 60 km per hour zone with a blood alcohol level of 0.077 when he hit another driver reversing out of his driveway. The driver was killed. The prosecution relied solely on speed to prove that the appellant was driving dangerously and could not prove that the other driver's death was caused by the appellant's dangerous driving. The magistrate found that the other driver had pulled out in front of the appellant and that was a significant cause of the incident. The magistrate had sentenced the appellant to 18 months immediate imprisonment.
3. Jenkins J dismissed the appeal against conviction. Her Honour found that the magistrate made errors in sentencing, set aside the sentence and re-sentenced the appellant. Her Honour imposed a sentence of 18 months imprisonment suspended for two years.

1. Abeyakoon was an appeal to the Court of Appeal from a decision of Simmonds J to refuse a sentence appeal against a sentence imposed in the Magistrates Court for dangerous driving causing GBH and bodily harm.
2. In that case the appellant had driven through a red light and then hit another car, injuring the occupants. The driver had been drinking earlier in the day and mistakenly thought he was fit to drive. In fact, he had a blood alcohol level of 0.059 g per 100 ml of blood. The magistrate imposed a sentence of 18 months immediate imprisonment and disqualified the appellant from holding a driver's licence for two years.
3. Although one of the grounds of appeal in that case was that the sentence imposed was manifestly excessive, it was unnecessary for the Court of Appeal to consider that ground as it allowed the appeal on other grounds. The Court of Appeal relevantly re-sentenced the appellant to 12 months imprisonment and disqualified the appellant from holding a driver's licence for two years.
4. In sentencing the appellant, the Court of Appeal observed that it was necessary to take into account the circumstances of the offence, including the vulnerability of the victims and the consequences for them. The Court observed that the fact that the victims were left with permanent injuries weighed 'heavily in the basket of factors which have to be taken into account when imposing an appropriate sentence'.[44] The Court of Appeal also observed that the culpability of the driver was also an important factor and that the circumstances revealed a very low degree of culpability.

Timbrell v The State of Western Australia[45]

1. Timbrell was an appeal to the Court of Appeal (Buss JA (as his Honour then was), Mazza JA and Hall J (as his Honour then was)) from a sentence imposed by Sweeney DCJ on one count of dangerous driving causing death and one count of dangerous driving causing GBH, following guilty pleas in the District Court.
2. The appellant drove through a red light hitting another car and propelling that car into a light pole. The driver of that car was killed and the passenger suffered GBH.
3. The appellant had not been drinking or speeding. It was 9.00 pm but the intersection was well lit, the road dry and the weather conditions good. The appellant suffered a head injury and had no memory of the incident. The sentencing judge found that although why the appellant drove through the red light was unknown, lack of attention and care must have been involved.
4. The appellant was 21 when he committed the offences and had no criminal record. As a consequence of the incident, the appellant developed an adjustment disorder and required treatment from a psychologist. Sweeney DCJ accepted that he was remorseful.
5. Sweeney DCJ sentenced the appellant to 12 months immediate imprisonment and disqualified the appellant from driving for five years.
6. The appellant appealed on the ground that the sentence of immediate imprisonment was manifestly excessive. The Court of Appeal by majority (Mazza JA dissenting) allowed the appeal. Buss JA (with whom Hall J agreed) explained his reasoning as follows:[46]

In the present case, by comparison with other cases, the appellant's culpability was towards the low end of the scale of seriousness. His blood alcohol level was zero. There was no suggestion he was under the influence of illicit drugs. There was no evidence he had been exceeding the speed limit. It was not alleged the appellant had deliberately ignored the red traffic control signal. It was not open on the evidence to find he had engaged in deliberate risk-taking behaviour. Further, it was not open on the evidence to find he had made an error of judgment in approaching an orange light by erroneously deciding he had sufficient time to traverse the intersection before the light turned red. The appropriate basis for sentencing the appellant, in the context of his pleas of guilty and all the information before the sentencing judge, was that, as a result of inattention, he failed to appreciate he was faced with a red traffic control signal. The cause of his inattention is unknown.

My assessment of the appellant's culpability is based on this court's experience of a wide range of offending against s 59(1)(b) of the [Road Traffic] Act. It necessarily involves a comparison with other offences and offenders, and does not trivialise the appellant's transgression.

I have referred to the appellant's personal circumstances and antecedents. They were excellent. He did not have any prior convictions for traffic or other offences and he had no unpaid fines. All matters personal to the appellant were decisively in his favour.

There were numerous mitigating factors. The appellant was a young man (21 at the time of the offending). He was of unblemished character. He had lived a respectable and successful life. He was gainfully employed in a responsible position. The appellant had taken steps to obtain treatment from a psychologist for the psychological trauma he had suffered as a result of the incident. He pleaded guilty at the first reasonable opportunity. He evinced extreme and genuine remorse and contrition. The appellant's remorse and contrition were underscored by his decision to plead guilty at the first available opportunity despite his having no memory of the incident or the events leading up to it. There was very little risk he would ever appear again before the courts.

A feature of this case is the devastating impact of the incident on Ms Liddiard, her parents and Mr Liddiard's girlfriend. Mr Liddiard, a young man of 24, was killed and Ms Liddiard, a young woman of 23, was seriously injured. The victim impact statements speak eloquently of the emotional pain and loss suffered by Ms Liddiard, her parents and Mr Liddiard's girlfriend. The pathos is palpable. No doubt, the incident has also had a deleterious effect on other family members and friends. No sentencing disposition will compensate for the tragic and enduring consequences of the incident.

It is inherent in any offence against s 59(1)(b) of the [Road Traffic] Act that the incident will have occasioned the death of or grievous bodily harm to a person. But the circumstances and seriousness of an offence under s 59(1)(b) can differ significantly. There will occasionally be cases where, as a matter of fact, the imposition of a lesser penalty than immediate imprisonment will be appropriate for an accused who has been convicted of an offence or offences contrary to s 59(1)(b).

1. Buss JA observed that the degree of the appellant's culpability, combined with the significant mitigating factors, moderated the weight to be accorded to general deterrence. His Honour concluded that it was not reasonably open to the sentencing judge to decide that immediate imprisonment was the only available sentencing option.
2. Mazza JA dissented. His Honour said that the appellant's inattention was not merely momentary as he must have missed both the red light and the amber light. His Honour observed that the appellant drove through an intersection in a built up area at something close to 70 km per hour.
3. Mazza JA observed that even if this was a momentary breach it was a serious breach of the standards expected of a reasonable driver and was an appalling breach with devastating consequences. Ultimately, he was not satisfied that immediate imprisonment, as opposed to suspended imprisonment, was unreasonable and unjust. His Honour indicated that he did not regard the circumstances of the offending as involving a low degree of culpability and he considered that Sweeney DCJ was correct to give emphasis to the consequences of the appellant's driving.[47]

Gray v The State of Western Australia[48]

1. In Gray, Mr Gray was convicted after a trial in the District Court of dangerous driving causing death. He had been driving through a dust cloud created by a road train he was following on a gravel road on a mine site.
2. Mr Gray became disoriented and drove on the wrong side of the road and collided with a vehicle driving in the other direction. The other driver was killed.
3. In sentencing Mr Gray, the trial judge found that Mr Gray's fault lay in both continuing to drive in the dust cloud, rather than pulling back to a distance at which he had good visibility, and driving on the wrong side of the road. His Honour found that Mr Gray's dangerous driving was more than momentary inattention.
4. Mr Gray was 25 years of age, suffered a relationship breakdown after the accident and lost his job, causing him financial hardship. He also had a poor traffic record but was otherwise of good character. He was remorseful.
5. The trial judge sentenced Mr Gray to 2 years and 2 months immediate imprisonment and disqualified him from holding a driver's licence for five years.
6. Mr Gray appealed both his conviction and his sentence to the Court of Appeal contending, relevantly, that the trial judge should have suspended the term of imprisonment.
7. The appeal was dismissed, despite an express error made by the trial judge and the appellant was resentenced by the Court of Appeal to the same sentence imposed by the trial judge. The Court of Appeal considered that it would be inappropriate to suspend the sentence having regard to Mr Gray's culpability and the need for general deterrence.[49]

Rubin v The State of Western Australia[50]

1. Rubin was an appeal to the Court of Appeal against the sentence imposed by Bowden DCJ in relation to two counts of dangerous driving causing death or GBH (s 59(1)(b)) and three counts of dangerous driving causing bodily harm (s 59A).
2. Mr Rubin had been visiting Western Australia from the USA. He had hired cars in New Zealand and Australia prior to the accident that gave rise to the charges against him but he otherwise had no experience driving on the left-hand side of the road.
3. The accident occurred while Mr Rubin was driving in a southerly direction along Albany Highway in Bedfordale. As Mr Rubin travelled south the configuration of the road changed. It started as a dual carriageway with two lanes of traffic heading south and two lanes of traffic heading north, separated by a vegetated median. The median strip then ceased and the road became a dual carriageway in each direction, separated only by line markings. Then the dual carriageway ceased and the road became a single carriageway in each direction, separated only by line markings.
4. There were four signs warning drivers that the dual carriageway was ceasing and becoming a single carriageway before the road became a single carriage way. The signs included a sign bearing the words 'left lane ends in 500 metres', another sign bearing the words 'left lane ends ‑ merge right', and another sign bearing the words 'form one lane'.
5. There was also a double white line down the middle of the single carriageway.
6. Some distance after the road became a single carriageway, Mr Rubin was driving his car on the wrong side of the road when he collided with another car. The evidence did not establish when Mr Rubin crossed to the wrong side of the road but there was evidence that it took 50 seconds to drive south from the point at which the dual carriageway became a single carriageway.
7. Mr Rubin's wife who was in a rear passenger seat was killed during the accident. His daughter who was sitting in the front passenger seat received serious injuries to her chest and shoulder.
8. The driver of the other car suffered GBH. His 2-year-old daughter died. One of his other passengers suffered GBH and the other bodily harm.
9. There was no suggestion that either driver was affected by alcohol, drugs or fatigue or that either driver was speeding. Mr Rubin had no prior criminal history.
10. Bowden DCJ sentenced Mr Rubin to 18 months immediate imprisonment in relation to each of the counts of dangerous driving occasioning death, 12 months immediate imprisonment in relation to each of the counts of dangerous driving occasioning GBH and 6 months immediate imprisonment on the charge of dangerous driving occasioning bodily harm. These terms of imprisonment were ordered to be served concurrently with the result that the total effective sentence imposed was 18 months immediate imprisonment.
11. Before Bowden DCJ, it had been submitted that the sentence of imprisonment might be suspended. His Honour had indicated that he considered that the offence was too serious for the sentence to be suspended because of the consequences of the offence on those killed and injured.
12. One of the grounds of appeal was that it was not reasonably open to Bowden DCJ to decide that immediate imprisonment was the only appropriate sentencing option. The Chief Justice observed that:
    1. In support of this ground, attention is quite properly drawn to the appellant's unblemished prior record, his early pleas of guilty, and the other mitigating factors to which I have referred. Those matters are not contentious, and need not be revisited.
    2. Reliance was also placed upon the culpability of the conduct giving rise to the offences, and in that context it was submitted that it was 'difficult to envisage a case where the culpability would be lower'. I do not accept that submission for the reasons which follow.
    3. Mr Rubin was travelling southward in the northbound carriageway because he erroneously believed that he was still driving on a dual carriageway. Assessment of the extent of his culpability turns to a significant extent upon an assessment of the reasonableness of that belief. That in turn directs attention to the matters addressed by the sentencing judge in the passage which I have set out above in relation to ground 1. Those matters include the extent of the signage which indicated to drivers in Mr Rubin's situation that the dual carriageway was to merge into a single carriageway in each direction, the markings on the road surface which conveyed the same message, and the period of time and the distance over which Mr Rubin had the opportunity to observe those various signs, and to appreciate that he was travelling on a road which had a single carriageway in each direction. When account is taken of the four signs which were clearly and readily visible to drivers travelling south, the line markings on the surface of the road, and the period of time and distance over which Mr Rubin had the opportunity to observe those matters and draw an appropriate conclusion from them, it cannot be said that it is difficult to envisage a case in which the culpability of the conduct could be lower.
    4. Before turning to the cases said to be comparable, it is appropriate to emphasise that in cases of dangerous driving causing death, the culpability of the conduct constituting dangerous driving is only one aspect of the offence. The offence is only constituted if the dangerous driving has had the consequence of causing death. It is that element which distinguishes the offence from the less serious offence of dangerous driving. It follows that the range of sentences reasonably open in the exercise of a sound discretionary judgment will be determined not only by reference to the culpability of the offender's conduct but also, and significantly, by reference to the consequences of that conduct. Those consequences will, invariably, be unintended.
    5. The broad range of conduct which can constitute dangerous driving, the differing levels of culpability applicable to that range of conduct, the range of consequences which may flow from that conduct and the obligation to take both culpability and consequences into account necessarily means that there can be no established tariff or range of sentences applicable to all cases of dangerous driving causing death. There will be cases of dangerous driving causing death in which the culpability of the offender's conduct is relatively low in the scale of things, but the consequences of that conduct are relatively high. Disproportion between the culpability of the offending conduct and its consequences can and often does give rise to difficult sentencing issues. This is such a case.

1. The Chief Justice then went on to consider some comparative cases to which the parties had referred.
2. The Chief Justice referred to Gray and observed that while the culpability of Mr Rubin was less than that of the driver in Gray, he did not consider the levels of culpability significantly different. The Chief Justice observed that the consequences of Mr Rubin's conduct were more severe.
3. The Chief Justice also referred to Timbrell and observed that when account is taken of the differing levels of culpability and of the differing consequences in Timbrell as compared to the case before him, it could not be said that a sentence of suspended imprisonment was the only appropriate disposition available to the sentencing judge. The Chief Justice concluded that the sentence imposed was open to the sentencing judge. The other members of the court agreed.

The State of Western Australia v Formica[51]

1. Formica was a State appeal against a sentence imposed by Jenkins J for one count of dangerous driving occasioning death contrary to s 59(1)(b) of the Road Traffic Act.
2. The respondent in that case had driven a car while an intoxicated friend had been on the roof. The respondent had told the friend to get off the roof and get back in the car but the friend refused. The respondent drove home with the friend on the roof at between 40 km per hour and 50 km per hour.
3. The friend was heard to shout 'yahoo' as the car drove along. The respondent took longer than necessary to drive home, partly to prolong the friend's enjoyment. Shortly before the respondent reached home, the friend fell off the roof of his car and hit his head. The friend subsequently died of his head injury.
4. The respondent was 22 years old. He was working when he committed the offences and developed mental health issues as a consequence of his offending. He had a prior conviction for driving with a blood alcohol content in excess of 0.08% and received a spent conviction order for three minor drug offences.
5. Jenkins J accepted that the respondent had shown remorse.
6. Jenkins J sentenced the respondent to 2 years and 6 months imprisonment, suspended for two years.
7. The State appealed on the basis that the sentence imposed was manifestly inadequate.
8. The Court of Appeal dismissed the appeal. Newnes JA (with whom McLure P and Buss JA (as he then was) agreed) observed that the circumstances of the case were very unusual and the respondent had attempted to remove his friend from the roof. His Honour said that in the face of the friend's intransigence, the respondent made an error of judgment but not out of a selfish disregard for his safety but rather a misguided desire to make him happy. His Honour said that the respondent's driving reflected an intention to take care to ensure that no harm came to the friend but that he failed to make a proper assessment of the risk.

Sentence appeals involving careless driving causing death, GBH or bodily harm (s 59BA of the Road Traffic Act)

1. Wallace was a prosecution appeal against sentence on the basis that the sentence imposed was manifestly inadequate. In that case the Chief Magistrate had sentenced Mr Curyer to a fine of $2,500, disqualified him from driving for one year and ordered him to pay costs. Curthoys J allowed the appeal. In substitution to the Chief Magistrate's sentence, Curthoys J imposed a sentence of 9 months imprisonment, suspended in full for 12 months.
2. Mr Curyer and two friends had decided to drive to South Australia shortly before Christmas. They left at 8.30 pm but stopped at 2.00 am to sleep on the side of the road for two hours. Mr Curyer then started driving again. At 4.50 am Mr Curyer lost concentration, hit the dirt on the side of the road, swerved out of control and then rolled the vehicle. The road was dry and the weather fine.
3. Mr Curyer's friends were asleep in the back of the car when the accident occurred. One of them was uninjured, the other was killed. When Mr Curyer realised his friend was dead, he ran away and he was later found and arrested by the police.
4. In considering whether or not the sentence imposed was inadequate, Curthoys J began by considering the structure of div 1 of pt V of the Road Traffic Act. His Honour observed that when the offence created by s 59BA is compared to careless driving (s 62), it was immediately apparent that it is the consequences of careless driving that are very significant to the imposition of penalty. His Honour said that it might be expected that higher penalties would apply where someone is killed.
5. Curthoys J observed that there were no customary standards of sentencing for the offence but that did not mean that the sentence imposed was unreviewable. His Honour referred to the observations made by the Minister for Road Safety that I have already mentioned. His Honour also referred to the observations made by the Chief Justice in Rubin and to the decision in Abeyakoon.
6. When considering the seriousness of the offending, Curthoys J noted that Mr Curyer did not have a driver's licence and only a learner's permit, had only about 20 - 30 hours driving experience and was driving without supervision (as the other occupants of the car were asleep). His Honour also observed that Mr Curyer had only had a few hours of sleep and felt fatigued but kept driving despite this.[52]
7. Curthoys J noted that Mr Curyer was 22 at the time he was sentenced, had no criminal record and was employed. His Honour noted that he was also a father with a child.
8. Curthoys J concluded that the objective seriousness of the offence was such that a fine at the lower end of the range was inadequate. His Honour noted that in matters such as that before him, general deterrence and the consequences of the conduct were important.
9. Curthoys J found that Mr Curyer pleaded guilty at the earliest available opportunity (and he gave him a 25% discount under s 9AA of the Sentencing Act), co-operated with the police by making admissions and was remorseful. His Honour considered that a term of 9 months imprisonment was the only appropriate disposition but was ultimately persuaded that the term should be suspended. His Honour also disqualified Mr Curyer from driving for 12 months.

1. Jackman was an appeal to a single judge of this court, McGrath J, against the sentences imposed in the Magistrates Court in relation to various driving offences, including one count of careless driving causing bodily harm contrary to s 59BA(1) of the Road Traffic Act.
2. That count related to Mr Jackman hitting a pedestrian with his car and causing the pedestrian soft tissue injuries to his lower limbs. He tried to flee but was assaulted by witnesses. Later in the hospital he admitted that he was the driver involved in the incident. Breath analysis revealed a blood alcohol level of 0.078 grams of alcohol per 100 ml of blood at the time of the incident.
3. Mr Jackman did not hold a driver's licence and was disqualified from holding a driver's licence.
4. Mr Jackman was 31 years of age and was studying at TAFE. He had a lengthy criminal record. This included 11 convictions for no authority to drive (including six driving under suspension offences), two no driver's licence offences, three driving under the influence of alcohol offences, driving recklessly offences and one dangerous driving offence.
5. McGrath J considered that Wallace and Rubin were not directly comparable to the case before him. His Honour observed that unlike in Wallace, Mr Jackman was not youthful, was intoxicated, driving without authority, caused substantial injury and had an extensive relevant criminal record. His Honour concluded that the sentence imposed by the magistrate was not manifestly excessive.

Was the sentence imposed by Magistrate Oliver manifestly excessive? Why Ms Van Oyen contends that the sentence was manifestly excessive

1. A sentence may be manifestly excessive because the wrong type of sentence has been imposed, or because the length of the term of imprisonment is manifestly excessive.
2. In this appeal, Ms Van Oyen argued that the sentence imposed by Magistrate Oliver was manifestly excessive in both senses. She contended that the individual sentences and the aggregate sentence of 8 months imprisonment did not bear a proper relationship to the criminality of her conduct, having regard to all the relevant circumstances, and the range of sentences imposed in other comparable cases. Ms Van Oyen submitted that despite causing death, the offending was not so serious that terms of imprisonment were warranted.

1. In this appeal, Ms Van Oyen alleges that an error should be inferred on the basis that the sentences imposed are manifestly excessive or that the total effective sentence infringes the totality principle. The principles relevant to such an appeal were summarised by the Court of Appeal in Kabambi v State of Western Australia[53] as follows:

(1) Sentencing is a discretionary exercise. An appellate court can intervene only if the appellant demonstrates either an express or implied material error. Express error involves acting on a wrong principle, for example by mistaking the law or facts or taking into account an irrelevant matter. Implied error arises where the end result is so unreasonable or unjust that the court must conclude that a substantial wrong has occurred. Thus, an appellate court cannot substitute its own opinion for that of the sentencing court merely because the appellate court would have exercised a sentencing discretion differently.

(2) In order to determine whether a sentence for an individual offence is manifestly excessive or inadequate, the offence should be viewed in light of the maximum sentence prescribed by law for the crime, the standards of sentencing customarily imposed with respect to it, the place that the criminal conduct occupies in the scale of seriousness of crimes of that type, and the offender's personal circumstances.

(3) The first limb of the totality principle requires that the total effective sentence imposed on an offender who has committed multiple offences bears a proper relationship to the overall criminality involved in all of the offences (including those, if any, in respect of which the offender is still serving or is yet to serve a term of imprisonment), viewed in their entirety, having regard to all relevant facts and circumstances including those referable to the offender personally (and including, for example, the desirability of accommodating any wish to rehabilitate), all relevant sentencing factors and the total effective sentences imposed in comparable cases.

(4) The range of sentences customarily imposed for a crime does not establish the range of a sound exercise of the sentencing discretion. Sentences customarily imposed in comparable cases provide a yardstick or reference point for ensuring broad consistency in sentencing, bearing in mind the scope for significant variations in relevant sentencing factors, and that there is no single correct sentence. What is important is the unifying principles which sentences imposed in comparable cases reveal and reflect.

(5) When this court dismisses an appeal against sentence and when it resentences on a successful appeal, its decision does not fix the upper or lower limit of the range.

(6) Where there is a challenge on totality grounds, the severity of a sentence imposed on an individual count generally falls to be assessed in light of the sentences imposed in respect of the other counts and its contribution to the total effective sentence. A heavy individual sentence (which is not manifestly excessive) may be softened by an order that it be served concurrently with sentences imposed in relation to the other counts. A relatively light sentence (which is not manifestly inadequate) may, as a practical matter, have increased severity if it is ordered to be served cumulatively. The real question is whether the total effective sentence is unreasonable or plainly unjust.

1. Section 6(2) of the Sentencing Act provides that the seriousness of an offence is determined by taking into account the statutory penalty for the offence, the circumstances of the offence including the vulnerability of any victim of the offence and any aggravating and mitigating factors.
2. Section 6(4) of the Sentencing Act provides that a court must not impose a sentence of imprisonment on an offender unless it decides that the seriousness of the offence is such that only imprisonment can be justified, or the protection of the community requires it.
3. Pursuant to s 76 of the Sentencing Act, a court may impose a suspended term of imprisonment being in aggregate of 60 months or less for a period not more than 24 months. Section 76(2) of the Sentencing Act provides that a term of suspended imprisonment is not to be imposed unless the term, if it would not be possible to suspend, would be appropriate in all the circumstances.
4. Under s 39 and the related provisions of the Sentencing Act, a magistrate must be positively satisfied that it is not appropriate to suspend or conditionally suspend a term of imprisonment before the term can be ordered to be served immediately. In a borderline case, it may be reasonably open to impose different types of sentences.[54]
5. The discretion to suspend, or conditionally suspend, a term of imprisonment is not confined by considerations relating to rehabilitation. In a particular case, the objective features of an offence may outweigh the personal consideration of rehabilitation.[55]

1. As I have mentioned, the maximum penalty for the offence of careless driving contrary to s 59BA of the Road Traffic Act is 3 years imprisonment or a fine of 720 PU ($36,000) and an order that the person be disqualified from holding or obtaining a driver's licence for a period of not less than three months.[56]

The circumstances in which the offences were committed

1. Magistrate Oliver found that Ms Van Oyen was driving on a relatively straight section of road when she closed her eyes for a 'period of time' and that caused her to veer off the road. Her Honour described Ms Van Oyen's lack of attention as only 'momentary'.[57]
2. Earlier, Mr Ryan had submitted to the magistrate that Ms Van Oyen 'closed her eyes for not even a second - two seconds'.[58] That this was the case seemed to be accepted by the prosecution who said that she 'closed her eyes for one moment'.[59] Although the magistrate's sentencing remarks did not describe the period of time for which Ms Van Oyen's eyes closed, it seems to me that she accepted what she had been told by Mr Ryan. I am fortified in this conclusion by the fact that what Mr Ryan said was not challenged by the prosecution and the Magistrate did not inform Mr Ryan that she did not accept what he had said.
3. It was not suggested that Ms Van Oyen was fatigued. Mr Ryan submitted to the magistrate that she had stopped for a break shortly before the incident occurred.[60] Although the magistrate did not make any finding that Ms Van Oyen stopped as Mr Ryan submitted, her Honour also made no finding that Ms Van Oyen was fatigued.
4. Although the stretch of road on which Ms Van Oyen was driving had a high speed limit (110 km per hour), the prosecution accepted that there was no indication of excessive speed.[61]
5. Magistrate Oliver considered that the consequences and the death of the two children made this a serious example of this offence. Her Honour observed that Ms Van Oyen had a paramount obligation to exercise due care and attention in driving.[62]
6. It is evident from these comments that the magistrate's conclusion about the seriousness of Ms Van Oyen's offending was heavily influenced by the serious and tragic consequences of the incident.
7. The respondent submitted that, as with an offence under s 59 of the Road Traffic Act, the seriousness of an offence under s 59BA should be determined not only by reference to the culpability of the offender but also, and significantly, by reference to the consequences of the incident. In this regard, the respondent referred to the observations made by the Chief Justice in Rubin[63] and the Court of Appeal in Abeyakoon.[64]
8. I agree that the consequences of the incident are relevant when sentencing an offence contrary to s 59BA of the Road Traffic Act. As Curthoys J observed in Wallace, the offence is one that can be committed by a driver who causes bodily harm, GBH or death. The nature of the injury caused is relevant to determining where on the range of seriousness a particular offence sits.
9. Two matters must be borne in mind, however.
10. First, culpability remains an important factor.[65] In the passage in Abeyakoon[66] relied upon by the respondent, the Court of Appeal described culpability as an 'important factor'. The court's assessment of the offender's culpability in that case plainly influenced the court's assessment of the appropriate sentence. The same was true in both Timbrell and Formica.
11. Secondly, the serious consequences of an offence do not mandate a particular outcome. In Rubin,[67] the Chief Justice observed that the broad range of conduct which can constitute dangerous driving, the differing levels of culpability applicable to that range of conduct, the range of consequences which may flow from that conduct and the obligation to take both culpability and consequences into account necessarily means that there can be no established tariff or range of sentences applicable to all cases of dangerous driving causing death.[68] In my view, the same observations can be made about the offence of careless driving causing death, GBH or bodily harm of which Ms Van Oyen has been convicted.
12. In this case, as the magistrate observed, Ms Van Oyen's children were vulnerable to her offending. As I am sure that Ms Van Oyen is painfully aware, she had a responsibility to her daughters that she failed to discharge.
13. The respondent accepted that Ms Van Oyen's culpability was low, however. In my view, that assessment is correct. This is not a case in which Ms Van Oyen's driving was characterised by blatant risk taking behaviour. The offending involved a momentary closing of the eyes and lacked the persistence that marks cases like Rubin or Gray. While the speed at which Ms Van Oyen was driving increased the risk associated with her inattention, the stretch of road was straight. Photographs of the accident scene provided to the magistrate confirm this. There was no suggestion that Ms Van Oyen was fatigued, or affected by drugs, or alcohol.

1. Magistrate Oliver was provided with a number of victim impact statements. These included statements from Macey and Riley's father and members of his family. They speak of their difficult struggle with their devastating loss and overwhelming grief. It is undoubtable that the death of Macey and Riley has had a very significant impact.

1. Ms Van Oyen was 32 when she was sentenced. She has no significant criminal history.
2. The report prepared by Ms Fowler and provided to the magistrate describes Ms Van Oyen as being overwhelmed by the death of her children and her responsibility for what happened. Ms Fowler said that Ms Van Oyen reported a difficult relationship with Macey and Riley's father and that she has separated from him. Ms Fowler said that Ms Van Oyen suffers from intrusive images of the accident scene and flashbacks. Ms Fowler considered that Ms Van Oyen suffered from PTSD and a prolonged grief disorder.

1. It is also relevant that Ms Van Oyen entered a guilty plea at the first available opportunity. The entry of a guilty plea meant that a trial was not necessary which spared the family of Macey and Riley the trauma of a trial and the State the cost of conducting the trial. The magistrate afforded Ms Van Oyen the maximum 25% discount allowed under s 9AA of the Sentencing Act.[69]
2. The magistrate accepted that Ms Van Oyen was genuinely remorseful.[70]
3. The magistrate emphasised the need for general deterrence.[71] There did not seem to be any suggestion that the need to deter Ms Van Oyen from such offending in the future (specific deterrence) had much of a role to play. The burden of guilt that Ms Van Oyen will undoubtably carry with her for the rest of her life will have a much greater impact on her than any sentence that any court could impose.

1. As I have mentioned, Ms Van Oyen challenged the sentence imposed both on the basis that the wrong type of sentence had been imposed, and that the length of the term of imprisonment was manifestly excessive.
2. Ms Van Oyen submitted that the sentence imposed by the magistrate did not sit well with the outcome in Wallace. She also submitted that the offending in Rubin and Timbrell was more serious than Ms Van Oyen's offending in this case.
3. As I have mentioned, Magistrate Oliver was confronted with a difficult sentencing exercise. It was necessary for her Honour to take into account a number of competing considerations including the serious consequences of Ms Van Oyen's offending and the need for general deterrence on the one hand and the degree of Ms Van Oyen's culpability and the significant mitigating factors, on the other. The sentence imposed and, in particular, her Honour's decision to order a term of immediate imprisonment emphasised the former considerations. In my view, the latter considerations moderated the weight to be accorded to general deterrence in the unique circumstances of this case.
4. I am not satisfied that the moderating effect of these matters was such that the imposition of the 8 month terms of imprisonment was unreasonable or unjust, or outside the range of sentences reasonably open to the sentencing magistrate.
5. To the extent that Ms Van Oyen argued that the imposition of any term of imprisonment was manifestly excessive, I am not satisfied that any of the cases referred to support such a proposition. Terms of imprisonment were imposed in all of those cases. Indeed, in Wallace, Curthoys J considered that a sentence other than imprisonment was manifestly inadequate (although he suspended the term of imprisonment).
6. Nor do I consider that the authorities referred to suggest that the imposition of an 8 month term of imprisonment was outside the range of sentences reasonably open to the sentencing magistrate.
7. Four further relevant observations may be made about the decision of Curthoys J in Wallace that Ms Van Oyen relied upon.
8. First, the total effective sentence imposed by Magistrate Oliver was less than that imposed in Wallace.
9. Secondly, there were features of the present case that are not comparable to those in Wallace. Mr Curyer was only 22 when he was sentenced and still had the benefit of the mitigation of being considered young. Ms Van Oyen did not have this benefit. She was 32. Further, as young children under Ms Van Oyen's care, her daughters were dependent upon her and particularly vulnerable to her offending.
10. Thirdly, in Wallace, Curthoys J considered (consistent with the Chief Justice's observations in Rubin) that proper weight needed to be given to the consequences of the offending.
11. Fourthly, a single case does not establish a customary range of sentences.
12. In relation to Timbrell, Ms Van Oyen referred to comments made by Mazza JA that there must have been a sustained period of inattention for the offender to miss both the amber and red light. Mazza JA was in dissent in that case, however. His Honour's analysis appeared to differ from that of the majority.
13. In my view the present case has some similarities to Timbrell, although that case involved the offence of dangerous driving which carries a higher statutory maximum. It is not apparent to me that the sentence imposed in Timbrell suggests that the sentence imposed by the magistrate in this case was manifestly excessive. The sentence imposed in Timbrell was 12 months immediate imprisonment, significantly more than that imposed in this case.
14. While the offending in Rubin was more serious than in this case, the appellant also received a more significant sentence. Mr Rubin was sentenced to 18 months immediate imprisonment. It is not apparent to me that the sentence imposed in that case suggests that the sentence imposed by the magistrate in this case was manifestly excessive
15. For these reasons, I do not consider that Ms Van Oyen's appeal on the basis that the length of the term of imprisonment was manifestly excessive, has merit.
16. In my view, however, the moderating effect of the degree of Ms Van Oyen's culpability and the significant mitigating factors in this case are particularly relevant to the consideration of the type of sentence to be imposed.
17. Even for the more serious offence of dangerous driving, there may be circumstances like those in Timbrell and Formica where a suspended term of imprisonment is appropriate. Whether the offence is dangerous driving or careless driving causing death, GBH or bodily harm, the appropriate sentence necessarily requires consideration of all of the relevant circumstances, including the nature of the offending, the culpability of the offender and the consequences. The circumstances of the commission of the offence and culpability remain important factors.[72]
18. In this case, given the nature of Ms Van Oyen's offending, the degree of her culpability and the significant mitigating factors, I am satisfied that it was not reasonably open to the magistrate to decide that immediate imprisonment was the only appropriate sentencing option in the particular circumstances of this case. I consider that the imposition of immediate terms of imprisonment was outside the range of sentences reasonably open to the sentencing magistrate.
19. I will therefore grant leave to appeal in respect of Grounds 2 and 3 and allow the appeal on those grounds. I will set aside the magistrate's decision to order terms of immediate imprisonment.

1. As I have allowed the appeal on Grounds 2 and 3, it may not be necessary to consider Ground 1 in any detail.
2. The basis underlying Ground 1 was not clearly articulated. Given that the two terms of imprisonment were ordered to be served concurrently, it is not apparent to me that the aggregation of those sentences could be said not to bear a proper relationship to the overall criminality of the appellant's conduct. I will not grant leave to appeal in relation to Ground 1.

1. It is necessary for me to re-sentence Ms Van Oyen. I have the necessary material before me to do so.
2. I have carefully considered all of the circumstances relevant to Ms Van Oyen's sentencing including:

(a) the statutory maximum penalties;

(b) the circumstances of the offending including the vulnerability of Macey and Riley;

(c) the very serious consequences of the offending;

(d) Ms Van Oyen's low culpability;

(e) the fact that Ms Van Oyen entered a guilty plea at the first available opportunity;

(f) Ms Van Oyen's remorse;

(g) Ms Van Oyen's personal circumstances including her prior good character (and including the lack of any significant prior criminal record);

(h) the high likelihood that Ms Van Oyen would not offend again; and

(i) the need for general deterrence.

1. In light of all of these matters, I am satisfied that an 8 month term of imprisonment for each count is appropriate.
2. As I have imposed two sentences it is necessary for me to consider the 'totality principle' in deciding the total effective sentence.
3. The totality principle comprises two limbs.
4. The first limb of the totality principle requires me to consider all of Ms Van Oyen's offending to ensure that the total effective sentence bears a proper relationship to her overall criminality viewed in its entirety and having regard to the circumstances of the case including those referable to her personally.
5. The second limb is that I should not impose a 'crushing' sentence on Ms Van Oyen. The word 'crushing' in this context denotes the destruction of any reasonable expectation of a useful life after release.
6. In this case I consider that a total effective sentence of 8 months would be appropriate. I consider that this should be achieved by ordering Ms Van Oyen to serve the two sentences concurrently.
7. As I have mentioned, I consider that it is appropriate to suspend these terms of imprisonment. I will order that the terms of imprisonment be suspended for 9 months from the date of re-sentencing by me.

1. I will grant leave to appeal on Grounds 2 and 3 and allow the appeal on those grounds. I will re-sentence Ms Van Oyen to an 8 month term of imprisonment in relation to each count, with those sentences to be served concurrently. I will order that the terms of imprisonment be suspended for 9 months from the date of re-sentencing by me. As Ms Van Oyen did not appeal the period of disqualification of her driver's licence imposed by the Magistrate, that period of disqualification remains in place.

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

[1] Western Australia, Parliamentary Debates, Legislative Assembly, 11 November 2015, 8047

[2] Road Traffic Legislation Amendment Bill (No 2) 2015, Explanatory Memorandum, 17.

[3] Road Traffic Act s 59(3).

[4] Although see Abeyakoon v Brown [2011] WASCA 63; (2011) 211 A Crim R 388 (Abeyakoon) [29].

[5] Primary court transcript, ts 2 - ts 3.

[10] Van Vught v Wilson [2020] WASC 85.

[20] ts 8 - ts 9; Transcript of Supreme Court hearing on 25 January 2019 (Wallace v Curyer, SJA 1105 of 2018) (Curthoys J) (Wallace).

[33] Criminal Appeals Act s 6(f) and s 7(1).

[34] Criminal Appeals Act s 8(1)(a)(i).

[35] Criminal Appeals Act s 9(1).

[36] Criminal Appeals Act s 9(2).

[37] Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56].

[38] Criminal Appeals Act s 9(3).

[39] Sami v Duggan [2011] WASC 304 [38].

[40] Criminal Appeals Act s 14(2).

[41] Jackman v Davison [2019] WASC 364 (Jackman).

[42] Van Vught v Wilson [2020] WASC 85.

[43] Hunt v Callaghan [2011] WASC 10 (Hunt).

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

[48] Gray v The State of Western Australia [2015] WASCA 108 (Gray).

[50] Rubin v The State of Western Australia [2016] WASCA 2 (Rubin).

[51] The State of Western Australia v Formica [2016] WASCA 104.

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

[54] Skipworth v The State of Western Australia [2008] WASCA 64 [11], [13] - [14] (McLure JA); Fogg v The State of Western Australia [2011] WASCA 11 [9] (McLure P, Mazza J agreeing).

[55] Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 [18] (Gleeson CJ & Hayne J), [26] (Gaudron & Gummow JJ), [84], [86] (Kirby J).

[56] Road Traffic Act s 59BA(1); Road Traffic Administration Act 2008 (WA) s 7.

[68] See also Lutumba v State of Western Australia [2013] WASCA 172 [24] (Buss JA).