Gelmi v WA

(2019) 89 MVR 443; [2019] WASCA 139

Western Australia Court of Appeal

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Interrogate

Catchwords

1. Criminal Law
2. › Appeal
3. › Appeal against sentence
4. › Manifest excess
5. › Dangerous driving occasioning death
6. › Driving under influence of alcohol
7. › Whether sentence of 5 years 3 months' imprisonment manifestly excessive
8. › Road Traffic Act 1974 (WA), s 59(1)(a), s 59(3)(a)(i)
1. Criminal Law
2. › Sentencing
3. › Dangerous driving occasioning death
4. › Driving under influence of alcohol
5. › Maximum penalty 20 years' imprisonment
6. › General deterrence
7. › Vulnerability of victim
8. › Child pillion passenger without helmet
9. › Road Traffic Act 1974 (WA), s 59(1)(a)
1. Criminal Law
2. › Appeal
3. › Appeal against sentence
4. › Discretionary sentencing decision
5. › Weight given to relevant considerations
6. › Whether failure to give sufficient weight constitutes appealable error

Quick Take

For sentencing under s 59(1)(a) of the Road Traffic Act 1974 (WA), comparable cases must be drawn from offences carrying the same 20-year maximum penalty, not from s 59(1)(b) offences without circumstances of aggravation which carry a 10-year maximum. A sentence of 5 years 3 months' imprisonment (approximately 26% of the maximum) was upheld for an offender with no prior record who rode a trail bike while intoxicated (BAC 0.136%) with an unhelmeted 10-year-old pillion passenger who was killed.