Dangerous driving occasioning GBH
Prior to 1 January 2014
Transitional Sentencing Provisions: This table is divided into thirds based on the three relevant periods of Sentencing Provisions: - Post-transitional provisions period - Transitional provisions period - Pre-transitional provisions period
These periods are separated by a row which shows when the transitional provisions were enacted, and another showing when they were repealed.
Glossary: imp imprisonment susp suspended conc concurrent cum cumulative PG plead guilty BAC blood alcohol content att attempted EFP eligible for parole DDOGBH dangerous driving occasioning grievous bodily harm DDOD dangerous driving occasioning death DDOBH dangerous driving occasioning bodily harm agg aggravated circ circumstances TES total effective sentence RTA Road Traffic Act 1974 (WA) DUI driving under the influence
DDOGBH 29.01.16 Current as 29 January 2016
No. Case Antecedents Summary/ facts Sentence Appeal 12. Timbrell v The 21 yrs at time of offending. Ct 1: DDOGBH RTA s59(1)(b) Ct 1: 8 mths imp. Allowed by majority. State of Western 22 yrs at time of sentencing. Ct 2: DDOD RTA s59(1)(b) Ct 2: 12 mths imp Australia [No 2] (conc). Mazza J dissenting. Convicted after early PG. The appellant was driving his motor [2013] WASCA vehicle on Leach Highway in Shelley. He TES 12 mths imp. Terms of conc and order stand. 269 No prior criminal record; no prior drove into the intersection of Leach TES of 12 mths imp susp for 9 traffic convictions; no unpaid fines. Highway and Vahland Avenue in Extreme and mths. Delivered contravention of a red traffic control light. genuine remorse and 28/11/2013 Attended private Catholic School; contrition. At [56] … By comparison with house captain; completed Bachelor of The bullbar of his vehicle struck another other cases, the appellant’s Commerce degree; represented the motor vehicle in the intersection. The other Character references culpability was towards the low State in underage football. vehicle had been travelling on Vahland spoke well of him. end of the scale of seriousness. Avenue. Mr Liddiard was the driver and There was no suggestion he was Employed with a finance company. his sister, Ms Liddiard, was a passenger. Judge not satisfied under the influence of illicit Mr Liddiard lawfully entered the that appellant drugs. There was no evidence he No difficulties with alcohol or illicit intersection on a green traffic control light deliberately drove had been exceeding the speed drugs. in order to execute a right turn. The force through the red limit. It was not alleged the of the impact propelled his vehicle into a light. appellant had deliberately Strong and stable family. light pole. The appellant’s vehicle rolled. ignored the red traffic control Sentencing judge signal … the cause of his Due to the collision now suffering from Mr Liddiard died at the scene from spinal noted that appellant inattention is unknown. an adjustment disorder; experiencing and head injuries suffered as a result of the had a ‘momentary symptoms of increased depression and collision. Ms Liddiard received rib and appalling lapse At [111] Patterns of sentencing stress, social avoidance, increased fractures, a punctured and collapsed lung, of either judgment with respect to the recently irritability, feelings of guilt, reduced multiple lower limb lacerations, a hip or attention…’ increased penalties are yet to self-confidence, increased emotionality wound, facial cuts, a chipped tooth and emerge … & greater level of dependence on his whiplash injuries. The collapsed lung was VIS described as parents. a life-endangering injury. Ms Liddiard ‘absolutely spent a week in hospital after the collision. heartbreaking’.
DDOGBH 29.01.16 Current as 29 January 2016 The appellant received a head injury. He was treated in hospital but the injury was Very low risk of re- relatively minor. offending.
The appellant undertook a preliminary breath test at the scene. His blood alcohol level was zero. The speed limit where the incident occurred was 70 km/hr. There was no evidence to suggest the appellant had been speeding. Also, there was no evidence to suggest he had braked before the collision. The road was dry, the weather conditions were clear and the intersection was well lit.
Ideal driving conditions.
As a result of the head injury the appellant had no memory of the incident and could not say why he drove into the intersection.
11. Lutumba v The 29 yrs at time of offence & sentencing. Indictment Indictment Allowed. State of Western Ct 1: DDOD RTA s59(1)(b) Ct 1: 5 yrs imp. Australia Convicted after early PG. Ct 2: DDOGBH RTA s59(1)(b) Ct 2: 3 ½ yrs imp. Sentencing judge’s decision in Ct 3: DDOGBH RTA s59(1)(b) Ct 3: 3 ½ yrs imp. relation to Ct 1 on the [2013] WASCA No prior criminal record in WA. Ct 4: DDOGBH RTA s59(1)(b) Ct 4: 3 ½ yrs imp. indictment, and orders in 172 relation to accumulation and Born in Congo; Arrived in WA in 2009 s32 Notice s32 Notice concurrency of the individual Delivered as a refugee. DDOBH 4 mths imp. sentences of imp, set aside. 01/08/2013 DDOBH 4 mths imp. Early life traumatic; his environment Unauthorised driving (learner) $250 fine Re-sentenced to 3 yrs 6 mths disrupted by ongoing fighting, Drive vehicle contrary to compliance $600 fine imp (Ct 1) and TES 4 yrs 6 mths
DDOGBH 29.01.16 Current as 29 January 2016 widespread disease and famine; saw his notice $300 fine imp. father and brother both killed. Disorderly behaviour in public Ordered to serve 12 At [39] … the appellant’s Full time employment since been in All of the offences, except for the offence mths of term criminal conduct was not in the WA; financially supported his mother. of disorderly behaviour in public, arose out imposed on Ct 3 on upper range of seriousness for of single course of conduct while the indictment before offences of dangerous driving Former partner, who was pregnant with appellant drove a motor vehicle on 1 commenced to serve occasioning death, where the their unborn son, remained in Congo January 2012. term imposed for Ct offence is not committed in when he relocated to WA. In early 1 on indictment. circumstances of aggravation. 2012, his son died from malnutrition. At about 8:45pm the appellant drove his sedan on Dunreath Drive towards Perth All other terms At [41] … bearing in mind the Very limited English skills. Airport. Dunreath Drive is a single conc. increase in the maximum carriageway with one lane provided for penalty, with effect from 1 each direction of travel. The appellant was TES 6 yrs imp. August 2008, it is apparent from transporting four passengers, being three my scrutiny of earlier sentencing adults and a 6 yr old child. EFP. decisions that the term of 5 years’ imprisonment is outside Immediately prior to the incident, the MDL disq 6 yrs. the range available on a proper appellant was seen by other road users to exercise of sentencing be travelling dangerously close to the rear Appears to have discretion. of a Mercedes truck. This limited his view been contrite and of oncoming traffic. remorseful for his At [51] It was appropriate, in offending and its the circumstances, for the About 1.9km from the airport, at the impact on the seriousness of the appellant’s approach to a right-hand curve in Dunreath victims. offending, and the consequences Drive, the appellant crossed double white for multiple victims, to be dividing lines onto the incorrect side of the recognised by some carriageway. He performed this accumulation of the individual manoeuvre in an attempt to overtake the sentences of imprisonment. truck, which had reduced its speed in However, when the total accordance with a ‘reduce speed’ sign. The effective sentence of 6 years’ appellant’s vehicle collided head on with imprisonment is evaluated in the
DDOGBH 29.01.16 Current as 29 January 2016 an oncoming vehicle which contained a context of the maximum driver and a passenger. penalties for the offences for which individual sentences of As a result of the collision, the rear imprisonment were imposed driver’s side passenger in the appellant’s ……the only conclusion vehicle, a woman, suffered multiple severe reasonably open is that the injuries. She died shortly after in hospital sentencing outcome infringed (Ct 1). The deceased woman’s partner, the first limb of the totality who was seated in the middle rear seat, principle. … was seriously injured (Ct 2). The two occupants of the oncoming vehicle sustained extensive injuries amounting to GBH (Cts 3 and 4). The deceased’s 6 yr old son, who was seated in the rear of the vehicle, and the front seat passenger, received injuries amounting to bodily harm (Cts 1 and 2 on s32 notice). The appellant broke his ankle.
When the offences occurred, the appellant was driving contrary to the conditions of his learner’s permit in that he was not properly supervised and he failed to display ‘L’ plates. He should not have been driving in the circumstances. The appellant’s vehicle was, to his knowledge, subject to a compliance notice and was therefore unfit for use on the road. 10. Shee v Jennings 30 yrs at offending. s 284(2) Criminal Code Culpable 18 mths imp. Appeal allowed. 31 yrs at sentencing. driving (other than of motor vehicle) [2013] WASC causing GBH. EFP. Re-sentenced to 12 mths imp 162 Convicted after early PG. susp 12 mths.
DDOGBH 29.01.16 Current as 29 January 2016 The appellant was the owner of a 4.25m Sentencing Delivered No criminal record at time of offence. dinghy. He held a recreational skipper’s Magistrate ordered At [28] No range of sentences 06/05/2013 ticket. should not be has yet been established for the Prior good character. released or deported offence. However, there is an The appellant took his boat to the Belmont until the sentence analogy to cases involving Not an Australian citizen or permanent water ski area in the company of the victim imposed had been grievous bodily harm caused by resident. and two others. The ski area was marked satisfied. the driving of a motor vehicle. by yellow buoys. A speed limit of 15 km The sentencing pattern for Appellant had earlier been convicted per hour applied outside the ski area. Remorseful. dangerous driving causing and sentenced in the District Court on a grievous bodily harm …… was charge of conspiring with another to The appellant’s boat appeared to be on a Accepted that he did not referred to by the prosecutor commit an offence (Commonwealth) to collision course with another ski boat. The not see the other or the appellant’s counsel and 3 yrs imp. He was ordered to be appellant was observed by witnesses to be boat through was not considered by the released on a GBB after 12 mths. This looking back towards the victim on the inattention. Also learned magistrate. Commonwealth offence was kneeboard. The other ski boat was moving stated that he had committed after the offence of causing slowly towards the beach, side on to the given a safety GBH. appellant’s boat. The appellant turned his instruction to the boat sharply to the left, away from the victim prior to when Entitled to be sentenced as a first other boat. The sharp movement of the she commenced offender. appellant’s boat caused the kneeboard on knee boarding, but which the victim was riding to be whipped accepted that the around and into the other ski boat. instruction could have been more The victim was knocked unconscious as a extensive. result of striking the boat at speed and with force. She sustained fractures to both of Taken responsibility her arms and her elbow and a laceration to for the accident. He her chin. Her injuries required surgery and filed an accident she was subjected to a lengthy period of report and had rehabilitation. visited the victim in hospital on several occasions.
DDOGBH 29.01.16 Current as 29 January 2016
No alcohol or drugs involved.
Magistrate placed considerable weight on the VIS which detailed and complained of injuries and complications following surgery that were not referred to in the facts alleged by the prosecution. 9. Libri v The State 18 yrs 4 mths at offending. Ct 1: DDOGBH. Ct 1: 3 yrs 3 mths Appeal allowed – set aside the of Western Ct 2: Fail to stop after accident. imp and MDL disq orders for concurrency and Australia Convicted after Trial. Ct 3: Fail to report accident. 3 yrs (cum). accumulation. Ct 2: 1 mth imp [2013] WASCA Conviction for DDOGBH was The appellant and 3 friends had been at a (conc) and MDL Individual sentences imposed be 113 conviction for alternative offence. tavern. The appellant agreed to drive the disq12 mths (cum). served concurrently with each Appellant had been charged with GBH. friends to a birthday party in order for one Ct 3: 9 mths imp other. Delivered of the friends to confront one of those (cum) and MDL 03/05/2013 Criminal history consisting of a attending the party. The appellant did not disq 9 mths (conc). Re-sentenced to TES 3 yrs 3 number of driving offences. Licence have a current driver’s licence, having mths imp. disqualified at time of offence. been disqualified from holding a driver’s TES 4 yrs imp. licence for traffic offences. At [27] The offending in this Comfortable upbringing. MDL susp 4 yrs. case is very serious. Shortly before they arrived, party guests Not under the influence of drugs or had spilled out of the house where the Sentencing judge At [31] The sentences imposed alcohol at time of offending; party was being held onto the front lawn described the for the offence of DDOGBH in
DDOGBH 29.01.16 Current as 29 January 2016 Sentencing judge found that the and the adjacent road verge. appellant’s driving other cases are of limited accident was a consequence of the as demonstrating assistance because: appellant’s speed and his limited ability As the appellant approached the house he ‘callous and reckless (i) There is a wide variety in the to take evasive action. saw people outside the house and on both disregard for fellow circumstances of the sides of the road. The appellant parked on road users’. offences and the appellant; the verge and he and his passengers got out and of the car. Two of the friends engaged in a Some belated (ii) The maximum penalty was verbal altercation and subsequently remorse. increased from 4 years to 7 became involved in some pushing and years from 01.08.2008. shoving. A number of party guests came to Report said low risk watch. The fight was broken up by a party of re-offending but At [31] In Abeyakoon v Brown guest and the appellant and his three balanced against his the increased penalty was passengers got back into the car. The ‘lamentable’ traffic applicable but the circumstances appellant drove off and the party guests record. of that case were entirely walked back towards the party. different to the present case and it provides no assistance. Due to his unfamiliarity with the area, the appellant ended up back on the road where At [48] A sentence of 4 years the party was being held, driving towards imprisonment is the party. The area was well lit and as he disproportionate to the overall approached the house where the party was criminality involved in all of the being held the appellant could clearly see offending, having regard, in people on either side of the road and on the particular, to the personal verge. The appellant made no attempt to circumstances mentioned. slow down and continued at a speed of between 50-55 km/hr. As he rounded the bend in the road where the house was situated, the right hand corner of the car struck the victim. The victim hit the windscreen and the right wing mirror before falling to the ground. As the car hit the victim, the appellant saw a flash of
DDOGBH 29.01.16 Current as 29 January 2016 white and the windscreen cracked.
Sentencing judge accepted that the appellant did not see the victim before the impact because he was focusing on another pedestrian.
The appellant drove away from the accident without stopping. He told the passengers not to say anything to anyone. He drove back to one of the passenger’s house where he parked the car. He and one of the passengers then walked back to the tavern where they had been drinking earlier in the evening and began drinking again. The appellant did not leave the tavern until he was ejected. Upon arriving home, the appellant told his father that he had hit someone with a car. The appellant did not report the accident to police until the next morning.
The victim; a 17 yr old male; was taken to RPH where a CT scan revealed bleeds in the brain consistent with very significant acceleration-deceleration injury to the brain. Without medical intervention, the victim would have died. He is now seriously and probably permanently, disabled. 8. Voysey v Whatt 20 yrs at time of offending and 1 x Agg DDOGBH RTA s 59(1)(b). 12 mths imp. Offender’s appeal allowed. sentencing.
DDOGBH 29.01.16 Current as 29 January 2016 [2011] WASC Offence date 11/06/11 – max penalty 14 TES 12 mths imp. TES 12 mths imp susp 18 mths. 305 Convicted after early PG. yrs imp. At [62]–[63] The hope of Delivered No significant prior criminal record. Serious instance of offending. achieving a balance between 11/11/2011 general deterrence and the risks Made full admissions. Appellant finished his shift at a pizza store to community from dangerous Good education, established in the early hours of the morning. During driving must be balanced against employment, and the prospect of a the shift he had discussed with colleagues the demands of the instant case - career as an aviation pilot. racing their cars along Albany Highway. an early PG, full admissions, Appellant left work with the victim (16 yr deep sense of remorse, a hard old work colleague) in the front passenger lesson, young, good prospects, seat and engaged in a pre-arranged race no significant prior record, no with another work colleague, partly after suggestion that a term of being encouraged to do so by the victim. imprisonment inappropriate. Appellant accelerated to approx 120 -130 km/hr in 60 km/hr zone and as he approached a bend and lost control of his car. Car slid into the curb, across a grass verge, collided with a garden bed, metal bollard, a light pole, an advertising sign, and a stationary vehicle. The stationary vehicle was pushed into a second vehicle, which then hit a third, which then struck a fourth.
The victim received a fracture to the base of the skull and bleeding in the brain. The appellant received only minor injuries.
Neither the victim nor his family wanted the appellant punished by imprisonment and had forgiven the appellant.
DDOGBH 29.01.16 Current as 29 January 2016
7. Abeyakoon v 24 yrs at the time of sentencing. Ct 1: DDOGBH RTA s 59 (1)(b). Ct 1: 18 mths imp. Offender’s appeal allowed. Brown Ct 2: Fail to stop RTA s 54 (3). Ct 2: 12 mths imp. Convicted after early PG. Ct 3: DDOBH RTA s 59A (1)(b). Ct 3: 6 mths imp. Sentences on appeal: [2011] WASCA Ct 4: Driving with BAC of or over 0.05% Ct 4: $100 fine. Ct 1: 12 mths imp. 63 No significant prior criminal record. RTA s 64AA(1). Ct 2: 9 mths imp. TES 18 mths imp. Ct 3: 6 mths imp. Delivered Living with parents; stable Offence date 9/11/08 – max penalty 7 yrs EFP. Ct 4: $100 fine. 23/3/2011 employment; strong family support. imp. Remorse. TES 12 mths imp susp 12 mths. Business degree; good employment Appellant had been asleep for some hours record; highly regarded by current after consuming 6 full strength beers Only sentence for DDOGBH employer. earlier in the day. While driving home, the challenged. appellant entered an intersection against a Paying off damage to the motor red light (having not noticed it) and At [25] Categorisation of vehicles (approx $50,000). collided with three vehicles before coming dangerous driving offences to a stop. Appellant travelling at approx 60 occasioning GBH by two levels km/hr. of seriousness is unhelpful and Appellant’s car slid into the front of a may give rise to error. vehicle – neither the passenger nor driver were injured. The appellant’s car then hit a At [29] – [30] Magistrate in second vehicle – the driver suffered error to conclude that there was serious injuries resulting in permanent no distinction between DDOD disability (ct 1) and the passenger received and DDOGBH as far as the fracture injuries (ct 3). Appellant’s car penalty is concerned. then hit a third vehicle - again, no one was injured. The appellant’s vehicle then came to a stop. The appellant was dazed and, after being approached by someone in an “aggressive and abrupt manner”, left his vehicle (ct 2).
DDOGBH 29.01.16 Current as 29 January 2016 Appellant rang his family and told them about the accident. His family informed the police and the appellant returned to the scene where he gave a breath sample (ct 4).
No finding that alcohol caused the accident.
6. Devine v State 21 yrs at time of offending. 1 x DDOD RTA s 59(1)(b) . 5 yrs 6 mths imp. Allowed – individual sentences of Western 1 x DDOGBH RTA s 59(1)(b). 1 yr 6 mths imp. not disturbed; ordered that 6 Australia Convicted after trial. mths of count 2 be served before Offence date 13/05/08 – max penalty 20 TES 7 yrs imp. count 1 begins, then sentences [2010] WASCA No relevant prior criminal record. yrs and 14 yrs respectively. run concurrently. 94 Evidence of remorse Good support from close family Categorised as towards higher end of scale (PSR; apology to TES reduced to 6 yrs imp – Delivered throughout life; continuous work of seriousness – “premeditated, clear- families); suffered reflects criminality. 18/05/2010 history following completion of brick headed deliberate decision to drive at nightmares, anxiety laying apprenticeship. ridiculous speeds on a dark country road attacks, depression where the speed limit was 110km per hr. & attempted suicide. Appellant broke collarbone trying to He had three passengers in his car and did free passengers from car following not respond to his girlfriend’s demands to Testimony given crash. slow down. The appellant understood that that on previous death was a likely consequence of his occasions reached predilection for driving at dangerous speeds in excess of speeds.” 190km/hr with three passengers. Travelling at night on dark country road with 3 passengers. Appellant stated wanted Testimony given to see how fast car would go and sped off. that appellant had Reached 210-220km per hr when stated he would die passenger asked him to slow down. in a car accident
DDOGBH 29.01.16 Current as 29 January 2016 Appellant did not slow down and shortly “going flat out”. after lost control of the car, crashing into power pole killing one passenger and seriously injuring another.
Trial judge found travelling in excess of 171km per hr at time of crash ie upwards of 61km per hr over the speed limit.
5. Taylor v State of 18 yrs at time offence. 1 x DDOD RTA s 59(1)(b). 2 yrs 2 mths imp. Allowed. Western 1 x DDOGBH RTA s 59(1)(b).. 1 yr 2 mths imp. Australia Convicted after trial. TES reduced to 1 yr 8 mths imp. Offence date 23/07/07 – max penalty 4 yrs TES 2 yrs 2 mths [2009] WASCA One prior conviction (driving offence each count. imp. NB: State relied in part on dual 226 involving alcohol when child). characterisation of DD offences Cannot be categorised as being most Deeply ashamed and in Koltasz and followed in Kay – Delivered Good antecedents. serious kind of offence or towards upper remorseful. heavily criticised by Wheeler JA 17/12/2009 end of range. (leading judgement) as being of NB: Original limited use as the distinction Driving a vehicle belonging to a friend – sentence also does not adequately mark out tyres bald but this was not known by imposed after wide and disparate range of appellant. At, or near, a set of lights a Transitional circumstances and quality of commodore has pulled up alongside the Provisions were driving seen in this offence car and revved its engine – accepted by repealed. category. Such a categorisation sentencing judge as invitation to race. can lead to errors. Speed limit in area was 80km/ hr, the area was dark and the road was wet from light rain. The appellant accepted the invitation and the race lasted approx 90 seconds with the appellant reaching 120 km/hr before slowing to 90 km/hr. Cars have touched at some point and both drivers lost control
DDOGBH 29.01.16 Current as 29 January 2016 and left the road. When appellant’s car stopped one of the passengers, who was not wearing a seatbelt at the time, was not in the car – she had been thrown from the vehicle and died at the scene. The driver of the other car sustained life threatening injuries.
The driver of other car had BAC of 0.13% at time crash and was 30 yrs old. He was convicted after a fast track plea of guilty and the sentencing judge considered his injuries to be extra-curial punishment. He was sentenced to 12 mths with EFP.
Transitional Provisions Repealed (14/01/2009)
4. Shelley v 23 yrs at the time of offence. Ct 1: DDOGBH RTA s 59(1)(b) 10 mths imp. Offender’s appeal dismissed. Traynor 24 yrs at time of sentencing. Ct 2: DDOGBH RTA s 59(1)(b) 10 mths imp. Ct 3: DUI RTA s 64(1) $1000 fine. At [40] Immediate [2008] WASC Convicted after early PG. imprisonment not only open but 277 Offence date 21/03/08 – max penalty 4 yrs TES 10 mths imp correct having regard to No prior criminal record. imp. and $1000 fine. seriousness of the offending. Delivered 13/08/2008 Unable to offer any explanation for the Offence at the high level of seriousness Extremely offences. remorseful. At 6.30am the appellant was driving his vehicle at excessive speed toward a set of traffic lights on the freeway overpass with red lights against him. At the same time a Pulsar was travelling south along an off-
DDOGBH 29.01.16 Current as 29 January 2016 ramp and had negotiated a right-had turn across the intersection. The appellant entered the intersection at an excessive speed, against the red light, and collided with the rear of the Pulsar, shunting it forward. The driver and passenger were rendered unconscious and trapped in the vehicle. The driver suffered serious injuries, fractures of her cervical spine and pelvis. The passenger received a fracture of the cervical spine, a ligament injury, cuts and abrasions. The appellant was also seriously injured, receiving a fractured jaw which had pins and a plate inserted. Both vehicles were extensively damaged.
Shortly before the crash, the appellant was observed driving at speeds of between 140-150 km/hr in a 70 km/hr zone.
Appellant’s BAC was 0.183.
Amendments to RTA s 59 – reversal of onus of proof (01/01/2005)
3. Kay v State of Age not known but youth not 2 x DDOD RTA s 59(1)(b). 4 yrs imp each ct. Allowed. Western mitigating factor. 1 x DDOGBH RTA s 59(1)(b). 3 yrs imp. Australia 1 x DDOBH. 1yr imp. Sentences on appeal: Convicted after trial DDOD and 2 yrs 4 mths imp each DDOD. [2004] WASCA DDOGBH. Offence date 10/07/01 – max penalty 4 yrs TES 8 yrs imp. 1 yr 4 mths imp DDOGBH. 222 Convicted after PG DDOBH. death and GBH and bodily harm 6 mths 8 mths imp DDOBH.
DDOGBH 29.01.16 Current as 29 January 2016 (1st offence) or 18 mths (2nd or subsequent Delivered Prior criminal record - convictions for offence). TES reduced to 6 yrs imp. 30/09/2004 careless driving, dangerous driving causing bodily harm and numerous Appellant drove road train (freight NB: Division of dangerous speeding convictions. This was the weighing 28 tons) into the rear of a car driving into two categories third time the appellant had struck a stopped at a railway crossing. The railway (momentary inattention/ vehicle from the rear whilst driving crossing lights had been activated and a misjudgement and selfish road trains. train was approaching and the train’s horn disregard other road users) had been sounded numerous times as it adopted by Miller J (following Good work history and strong family approached the crossing. The collision Koltasz) in leading judgement support. propelled the car under the train as it criticised in Taylor v State of passed the crossing. The road train has Western Australia [2009] then struck the train and the force of this WASCA 226 by Wheeler JA in collision has detached the engine of the leading judgement as being of train and caused it to overturn. Two of the limited assistance. cars passengers were killed and another suffered bodily harm. A passenger in the road train has suffered grievous bodily harm.
Immediately prior to collision, appellant driving at an excessive speed for the vehicle in which he was driving through a country town. Collision attributed in sentencing entirely to appellant – driving in an arrogant and dangerous manner. No excuses could be found for dangerous driving – no evidence of driving for long hours or problems of personal nature which affected concentration.
Transitional Provisions Enacted (31/08/2003)
DDOGBH 29.01.16 Current as 29 January 2016
2. Norris v “AT” (a 17 yrs at time offending. 1 x Agg DDOGBH. 15 mths imp. State appeal allowed. child) 18 yrs at time sentencing. 2 x Driving while disqualified. 4 mths imp; 2 mths imp. TES increased to 3 yrs 6 mths [2003] WASCA Convicted after late PG – first day of 1 x Fail to stop when called to. $400 fine. imp – sentence for DDOGBH 54 trial. 1 x Fail to stop at an accident. $300 fine. increased to 21 mths imp. 1 x Fail to render assistance. $1300 fine. Delivered Extensive and serious prior criminal 1 x Failing to report an accident. $200 fine. At [31]-[38] Discussion of 26/03/2003 record – 59 prior convictions including 1 x Steal motor vehicle and rive recklessly. 12 mths imp. comparable cases and inherent 13 offences for reckless driving and 13 2 x Steal motor vehicle. 9 mths imp each ct. seriousness of offence. offences for driving with no license. 1 x Stealing. 2 mths imp. 1 x Agg burg. 12 mths imp. At [51] Seriousness of History of breaching CBOs. DDOGBH is to be measured in Offence date 20/02/02 – max penalty 14 TES 2 yrs 3 mths terms of the manner of driving History drug use – began using yrs imp. imp and $2200 fine. and the degree of harm caused cannabis at 13 yrs and amphetamines at Equivalent to 18 to the victim. 15 yrs. Very serious instance of DDOGBH. mths imp after implementation of At [51] Loss of life and personal Bordering average/low level Respondent was driving a stolen car and transitional injury caused by dangerous intelligence. became involved in a short police pursuit. provisions. driving one of the most serious Respondent drove at speeds of up to 100 social problems. One of 8 siblings, 2 of whom are km/hr in a 60km/hr zone as well as driving No genuine remorse intellectually handicapped. on the wrong side of the road before going – bragged about At [51] Deterrent sentence through a red light and colliding with offending. called for to mark seriousness of another car. The driver of that car received offending for DDOGBH. serious head injuries. Respondent then ran from the scene. At [54] Relevant factors in sentencing DDOGBH or DDOD include extent and nature of injuries suffered, number of people put at risk, degree of speed, degree of intoxication or
DDOGBH 29.01.16 Current as 29 January 2016 substance use, erratic driving, competitive driving or showing off, length of journey and exposure of others to risk, ignoring warnings and escaping police pursuit.
NB: Double jeopardy applied to State appeals.
NB: Division of dangerous driving into categories found in this decision has since been criticised by the Court of Appeal.
1. Koltasz v The Youth mitigating factor – age not Count 1: DDOD. 2 yrs 6 mths imp. Dismissed. Queen specified but appellant described as Count 2: DDOD. 2 yrs 6 mths imp. “very young man”. Count 3: DDOGBH. 12 mths imp. At [40] Victims voluntarily [2003] WASCA assuming risk of driving with 38 Good antecedents. Offence date 8/04/2000 – max penalty 4 TES 2 yrs 6 mths appellant knowing he was sleep yrs death and GBH. imp. deprived and affected by alcohol Delivered 3 days prior to offending appellant’s Equivalent to 20 does not lessen moral culpability 12/03/2003 driver’s license had been disqualified. Appellant’s culpability at higher end of mths imp after of appellant. Nor does fact scale. implementation of victims were not wearing transitional seatbelt. Appellant had been drinking more or less provisions. continuously since 4.30pm the afternoon At [50] There is a need for a before the incident. At 4.45am the strong deterrent message to be appellant failed to negotiate a sweeping EFP. sent to young people that, whilst right hand bend on a country road. The affected by alcohol and fatigue, vehicle left the road and collided with a DD causing death or GBH, a
DDOGBH 29.01.16 Current as 29 January 2016 power pole, killing two passengers who deterrent sentence of were in the rear of the vehicle and imprisonment is inevitable. seriously injuring the front seat passenger. NB: Division of dangerous Appellant was sleep deprived for 21 hours driving into categories found in prior to offending and had a BAC reading this decision has since been of 0.1 % at time of collision. criticised by the Court of Appeal.
DDOGBH 29.01.16 Current as 29 January 2016