SOMA -v- WA POLICE [2026] WASC 256

[2026] WASC 256 Page 1 JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA IN CRIMINAL CITATION : SOMA -v- WA POLICE [No 2] [2026] WASC 256 CORAM : LUNDBERG J HEARD : 24 JUNE 2026 DELIVERED : 25 JUNE 2026 FILE NO/S : SJA 1037 of 2026 BETWEEN : NICHOLAS KYLE SOMA Appellant AND WA POLICE Respondent ON APPEAL FROM: For File No : SJA 1037 of 2026 Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA Coram : MAGISTRATE E SHACKLETON File Number : JO 2346/2026 & JO 2347/2026 Catchwords: Criminal law - Appeal against sentence - Motor vehicle collision following appellant falling asleep at the wheel - Appellant pleaded guilty to careless driving occasioning bodily harm, driving without authorisation and having a prescribed illicit drug in his oral fluid - Total effective sentence of 7 months and -- 1 of 39 -- [2026] WASC 256 Page 2 14 days - Appellant had numerous prior convictions for driving motor vehicles whilst unauthorised and having prescribed fluid in oral fluid Criminal law - Whether express error by Magistrate in sentencing appellant on the basis that he knew the illicit drug was in his oral fluid - Analysis of sentencing remarks Criminal law - Whether express error by Magistrate in sentencing appellant for careless driving on the basis of a circumstance of aggravation - Whether Magistrates regarded presence of illicit drug in oral fluid as aggravating - Whether double punishment involved Criminal law - Whether total effective sentence manifestly excessive Criminal law - Error established and re-sentencing of appellant required - Variation of other sentences imposed at the same time - Turns on own facts Legislation: Criminal Appeals Act 2004 (WA), pt 2 Road Traffic (Authorisation to Drive) Act 2008 (WA) Road Traffic Act 1974 (WA), s 49, s 59AB, s 60, s 61 Road Traffic Legislation Amendment Act 2016 (WA) Sentencing Act 1995 (WA), s 6, s 7, s 8, s 9AA, s 39, s 76 Result: Application to adduce additional evidence allowed. Leave to appeal on ground 4 granted and appeal upheld on that basis. Leave to appeal on grounds 1 and 3 granted, but grounds 1 and 3 dismissed. The Magistrate's sentence for the offence of careless driving (JO 2347/2026) is set aside. Appellant re-sentenced as explained in the reasons. Category: B Representation: Counsel: Appellant : H W Glenister Respondent : J E Buller -- 2 of 39 -- [2026] WASC 256 Page 3 Solicitors: Appellant : William Gerard Legal Respondent : State Solicitor's Office Case(s) referred to in decision(s): Fernandes v The State of Western Australia [2009] WASCA 227 Guerinoni Nominees Pty Ltd v Cullen [2022] WASC 337 Harper v Page [2004] WASCA 267 Hesketh v R [2021] NSWCCA 262; (2021) 106 NSWLR 200 Jackman v Davidson [2019] WASC 364; (2019) 90 MVR 11 Lemmon v Walker-McLean [2019] WASC 475 Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 Lyon v Read [2012] WASC 96 Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 Nevermann v The Queen (1989) 43 A Crim R 347 Neves v Rogers [2013] WASC 440 Nguyen v The Queen [2016] HCA 17; (2016) 256 CLR 656 Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 Rijavec v WA Police [2025] WASC 243 RMM v The State of Western Australia [2018] WASCA 183 Salkilld v The State of Western Australia [2017] WASCA 168 Soma v WA Police [2026] WASC 208 Suleiman v The State of Western Australia [2017] WASCA 26 Tanner v The State of Western Australia [2013] WASCA 142 Van Oyen v Kosovich [2025] WASC 364 Willenberg v Downey [2015] WASC 282 -- 3 of 39 -- [2026] WASC 256 Page 4 Table of Contents Summary..................................................................................................................................... 5 Factual background..................................................................................................................... 6 Relevant charges and sentence ................................................................................................... 7 The proceedings in the Magistrates Court .................................................................................. 8 The Magistrate's sentencing reasons ........................................................................................ 11 The appellant's criminal history................................................................................................ 16 Grounds of appeal ..................................................................................................................... 16 Relevant principles ................................................................................................................... 18 Sentencing Act provisions .................................................................................................... 18 Sentencing is a discretionary exercise .................................................................................. 19 Disputed facts when sentencing ........................................................................................... 20 Examination of a court's sentencing remarks ....................................................................... 20 Ground 3 – whether the Magistrate sentenced the appellant on the basis he knew he had the illicit drug in his oral fluid? ...................................................................................................... 21 Appellant's submissions........................................................................................................ 21 Respondent's submissions .................................................................................................... 23 Disposition ............................................................................................................................ 24 Ground 4 – whether the Magistrate imposed double punishment? .......................................... 26 Appellant's submissions........................................................................................................ 26 Respondent's submissions .................................................................................................... 27 Disposition ............................................................................................................................ 28 Ground 1 – whether the sentence imposed for the offence of careless driving was manifestly excessive? ................................................................................................................................. 30 Resentencing of the appellant ................................................................................................... 32 Conclusion and orders .............................................................................................................. 32 ATTACHMENT A Sentencing remarks on 25 June 2026 ....................................................... 33 -- 4 of 39 -- [2026] WASC 256 LUNDBERG J Page 5 LUNDBERG J: Summary 1 These reasons relate to an appeal against the sentence imposed by a Magistrate sitting in Joondalup on 15 May 2026, in respect of the charge of careless driving causing bodily harm which was committed on 3 February 2026. The appellant pleaded guilty to that offence, and to two other driving offences under the Road Traffic Act 1974 (WA) (RTA) which were committed on the same occasion. The other offences were driving whilst disqualified and driving with a prescribed illicit drug in the appellant's oral fluid, namely methylamphetamine and cannabis. 2 The most serious of the offences was the careless driving charge, which involved the appellant falling asleep at the wheel and causing a high speed collision with another vehicle. It is simply fortuitous that the collision did not result in graver consequences for all four people involved, including the appellant himself. 3 The Magistrate gave comprehensive, ex tempore sentencing reasons, concluding that an immediate sentence of imprisonment of 7 months and 14 days for the careless driving offence was appropriate. Despite having a relatively extensive criminal record, this was the first occasion on which the appellant had received a custodial sentence. 4 The appeal against that sentence was heard yesterday, having been listed on an expedited basis following the court's refusal of the appellant's application for bail pending the appeal.1 The appeal, which has been opposed, was brought under div 2 of pt 2 of the Criminal Appeals Act 2004 (WA) (CAA), on the three grounds identified in the amended notice of appeal filed on 8 June 2026 (Appeal Notice).2 5 I consider the appellant has demonstrated a material error in the sentencing process and I will allow the appeal on ground 4, for the reasons which I now publish. In my respectful opinion, in the particular circumstances of this case, the Magistrate erred by having regard to the presence of the prescribed drug in the appellant's oral fluid as a circumstance of aggravation. 1 Soma v WA Police [2026] WASC 208. The present reasons should be read together with the court's earlier reasons. 2 The appellant was given leave to file an amended notice of appeal, which was duly filed on 8 June 2026, replacing the notice filed on 18 May 2026. -- 5 of 39 -- [2026] WASC 256 LUNDBERG J Page 6 6 That is an error because the presence of the prescribed drug on its own, without a finding as to any nexus between the drug and the careless driving or without a finding that the appellant had knowledge the drug was still in his oral fluid, did not increase the appellant's moral culpability for the offending in question. 7 Further, as the appellant was separately sentenced for the offence of having the prescribed drug in his oral fluid, it is evident the appellant was punished twice for that conduct. 8 I will grant leave to appeal on ground 4, allow that ground and set aside the sentence for the careless driving offence. I will also grant leave to appeal in respect of grounds 1 and 3, both of which were properly advanced and had merit, but will dismiss those grounds. 9 In these circumstances, given the outcome of the appeal, it has been necessary to resentence the appellant. The view I have reached is that the appellant should be sentenced to a term of imprisonment for 6 months and 14 days, such term to be suspended for a period of 12 months, to take effect on and from 15 May 2026. The term of imprisonment for the offence of driving whilst disqualified will also be varied so that the term is suspended.3 10 The total effective sentence is 6 months and 14 days, albeit suspended. 11 The court's reasons for reaching these conclusions now follow. Factual background 12 The facts of the driving offences were set out in some detail in the court's earlier reasons.4 It is convenient to restate the facts below. 13 The appellant is 36 years of age. 14 At 4.00 pm on 3 February 2026, the appellant drove a motor vehicle in the south direction of Indian Ocean Drive near Military Road, Wilbinga, which lies about halfway between Lancelin and Perth. The appellant fell asleep while driving and had a head-on collision with another vehicle travelling in the opposite direction. Police attended the crash scene, where the appellant identified himself as a driver. 3 CAA, s 41(2). 4 Soma v WA Police [7] - [15]. -- 6 of 39 -- [2026] WASC 256 LUNDBERG J Page 7 15 At the time of the collision, the appellant was an unauthorised driver in that the appellant's driver's licence had been suspended by force of two court orders. Namely, by order made in the Esperance Magistrates Court on 13 June 2025 and by order made in the Joondalup Magistrates Court on 15 July 2025, suspending the appellant's driver's licence respectively until 28 August 2026 and 28 May 2027. 16 The appellant was driving at approximately 100 kilometres per hour. The appellant had been working on a freight boat since the early hours and was extremely tired. The section of road in question is a straight single carriageway with one lane in each direction. The posted speed limit is 100 kilometres an hour. 17 The victim was driving north on Indian Ocean Drive, also at approximately 100 kilometres per hour, in a Ford Ranger utility. The victim was in company with two passengers, a 19 year old daughter and a four year old son. 18 The appellant fell asleep and veered onto the incorrect side of the road. The victim attempted to take evasive action to avoid a collision, but without success. The vehicles collided head-on. Both vehicles left the carriageway, coming to a stop about 50 metres apart in the bushland on the west side of the carriageway. Both vehicles sustained severe front and driver's side structural damage. Impact forces caused complete separation of the driver's side wheel and associated suspension components on both vehicles, meaning that both vehicles were a total loss. 19 All occupants of the Ford Ranger utility received medical treatment at the scene and were later conveyed to the hospital by ambulance. The innocent driver suffered bruising to the right hip, neck soreness, and pain in the lower back. 20 The appellant had no visible injuries and declined any medical treatment. The appellant stated that he was extremely tired and had fallen asleep while driving, which caused the vehicle to crash. The appellant admitted to taking amphetamines and was subject to a preliminary oral fluid test, which returned a positive test. Relevant charges and sentence 21 The appellant faced three driving offences arising from this conduct. -- 7 of 39 -- [2026] WASC 256 LUNDBERG J Page 8 22 The first charge was driving a motor vehicle whilst not being authorised by pt 2 of the Road Traffic (Authorisation to Drive) Act 2008 (WA) and while his authority to drive was suspended, contrary to s 49(1)(a) and (3)(c) of the RTA.5 The sentence imposed by the Magistrate for this offence was 3 months imprisonment, to be served concurrently. 23 The second offence was driving a motor vehicle which was involved in an incident occasioning bodily harm and at the time of the incident driving the vehicle without due care and attention, contrary to s 59BA(1) of the RTA.6 The sentence imposed for this offence was 7 months and 14 days imprisonment. This is the head sentence. 24 The Magistrate also made orders disqualifying the appellant from holding or obtaining a driver's licence for 9 months cumulative (in respect of charge JO 2346/26) and for 3 months concurrent (in respect of charge JO 2347/2026). 25 The third offence was of driving a motor vehicle with a prescribed illicit drug present in the driver's oral fluid, contrary to s 64AC(1) of the RTA.7 This was the appellant's fourth offence of that type. The appellant was fined $1,500 in respect of this offence (the statutory minimum penalty for a second and subsequent offence being a fine of $1,250 with a maximum fine of $2,000). The court further ordered that the appellant be disqualified from holding or obtaining a driver's licence for 6 months, being the minimum period in s 64AC(2)(b) of the RTA. 26 An effective total sentence of 7 months and 14 days was thus imposed on the appellant by the Magistrate, in respect of the first two offences. The proceedings in the Magistrates Court 27 The proceedings at first instance were addressed, in part, in the court's earlier reasons.8 It is necessary to restate some of those matters. 28 The appellant was represented before the Magistrate. The appellant entered pleas of guilty to the three charges and the facts were then read by the prosecuting sergeant. 5 JO 2346/2026. 6 JO 2347/2026. 7 JO 3250/2026. 8 Soma v WA Police [19] - [35]. -- 8 of 39 -- [2026] WASC 256 LUNDBERG J Page 9 29 The entire hearing lasted for around 25 minutes, according to the transcript. 30 When asked by the Magistrate whether the facts were accepted, counsel for the appellant clarified that, although it was accepted the appellant had methylamphetamine and cannabis in his oral fluid, it was not accepted that he was intoxicated at the time of the incident.9 The following interchange with the Magistrate then ensued: HIS HONOUR: Mr Glenister, [are] those facts accepted? GLENISTER, MR: Yes, your Honour. Just to be clear, though, … it's accepted that he had methylamphetamine and cannabis in his oral fluid, not that he was intoxicated at the time of the crash. HIS HONOUR: No, of course. GLENISTER, MR: Yes. HIS HONOUR: That charge doesn't suggest that he did. GLENISTER, MR: No. HIS HONOUR: However, it might have something to do – if you're using methamphetamine, there is a thing called the nods. Does he accept that it was the use of methamphetamine leading up to it as to why he was so tired? GLENISTER, MR: Well, no. He – his explanation for that is that he had been working since the early hours of the morning on a fishing boat and it was about 14 hours later he was then driving home. In terms of his methylamphetamine and cannabis use, Mr Soma worked sort of – at that time, about five days on, two days off on a fishing boat. It was at the end of his last swing that he used methylamphetamine and cannabis on, essentially, the – what would be the equivalent of a Friday night, and this was his first day back at work following two days off. So he had used it within about two days of the crash but at that time, all of the intoxicating effects and any after effects would, presumably, have worn off. 9 ts 4 (15 May 2026). -- 9 of 39 -- [2026] WASC 256 LUNDBERG J Page 10 31 The Magistrate then expressly acknowledged this point and sought an indication from the prosecutor in response:10 HIS HONOUR: So, Sergeant, happy for me to sentence him on the basis, obviously, that he was not under the influence but, also, that there was no – that there is no nexus between the illicit drug being in his oral fluid and the falling asleep? GELDENHUYS, MR: Yes. No, we will accept that. 32 Counsel for the appellant then made a plea in mitigation in which counsel acknowledged the appellant was 'very lucky' that more serious injuries did not result from the event, but emphasized that the appellant's carelessness was 'getting behind the wheel and driving while that tired' rather than the steering of the vehicle to the other side of the road. There was some debate between counsel and the Magistrate as to the point at which the carelessness stopped, with the court noting that that charge concerned the point of impact, and that that was the relevant time at which the appellant was driving without due care and attention.11 33 The Magistrate then highlighted that the charge represented the appellant's sixth offence of driving under disqualification and there was some discussion as to the appellant's criminal record.12 34 Counsel for the appellant then recognised that the 'point of imprisonment' had been reached, but submitted any such sentence should be suspended. Counsel addressed the circumstances of the collision and the appellant's personal circumstances, noting the following matters in particular. 35 The appellant had been driving on the day in question in order to get to work as a deckhand on a crayfish boat, driving from Two Rocks to Lancelin. There were no other means for the appellant to travel this journey, and he was thus faced with the prospect of 'not being able to turn up to work and possibly losing his job'. The appellant accepted he made a 'poor' and 'foolish' decision to drive in those circumstances. He had started work at 3.00am and had already been late to work on several occasions and 'felt that he was probably on his last legs with his boss'. The appellant indicated through counsel he had taken steps to 10 ts 5 (15 May 2026). 11 ts 6 (15 May 2026). 12 ts 7 (15 May 2026). -- 10 of 39 -- [2026] WASC 256 LUNDBERG J Page 11 make sure this did not occur again, by putting in place different travel and accommodation arrangements and, indeed, he had sold his vehicle.13 36 Counsel described the appellant as having a year 12 education and being a qualified automobile mechanic. He wanted to continue as a deckhand and in due course upgrade his skills so he can be a skipper or work on large vessels. The appellant was described as having a consistent history of employment in various industries including mining, auto electric, and marine.14 37 The appellant is engaged to be married in November 2026, having been in a relationship for the past five years. He has a 12 year old daughter who resides in Adelaide. The appellant was described as being from Zimbabwe, with his family coming to Australia for the wedding.15 38 As to drug use, counsel explained that the appellant did not consider himself to have a 'significant addiction problem [in] relation to methylamphetamine or other substances', but acknowledged it was becoming a problem for him. Counsel described the use as occasional and in 'social settings'. Counsel provided some family context at that point:16 He does tell me that he had a good childhood, but he lost his mother at the age of 10 and relocated from the age of two to South Africa from Zimbabwe, and then from the age of 13, from Zimbabwe to Australia. So his family is scattered all over the place. There has been some disruption in that, and he has missed out on experiencing some of his culture and the relationships he would ordinarily have been able to with his family. He initially migrated to the Pilbara when he arrived in Australia. There was a bit of a culture there among the teenagers to misuse alcohol. That's perhaps when he first developed any issues with substances whatsoever, and he tells me that he began using methylamphetamine from about 2012. The Magistrate's sentencing reasons 39 The Magistrate's ex tempore reasons then followed. The reasons are comprehensive. Given the challenges raised on appeal, it is necessary to address those reasons in a fulsome manner. 13 ts 8 (15 May 2026). 14 ts 8 (15 May 2026). 15 ts 9 (15 May 2026). 16 ts 9 (15 May 2026). -- 11 of 39 -- [2026] WASC 256 LUNDBERG J Page 12 1. The Magistrate first recognised, consistently with s 6(1) and s 6(2) of the Sentencing Act 1995 (WA) (Sentencing Act), that the sentences to be imposed must be commensurate with the seriousness of the offence, which he observed was determined by the maximum penalty, the circumstances of the offence, and any aggravating or mitigating factors. 2. In relation to the careless driving charge, his Honour noted the maximum penalty was a fine of $36,000 or imprisonment for three years. His Honour observed that he was required to disqualify the appellant from holding or obtaining a driver's licence for a minimum of three months. 3. As to the driving under disqualification charge, his Honour noted the maximum penalty was 18 months imprisonment and that he was required to disqualify the appellant from holding or obtaining a driver's licence for a period of not less than nine months. 4. His Honour indicated he would give the appellant the full discount for his early guilty pleas. 5. As to the offence of driving under disqualification, his Honour noted that the law regarded that offence as being a particularly serious offence, certainly where it involves a wilful defiance of the law. Where the offence is committed a number of times, his Honour commented that it may readily be inferred that the disobedience is wilful. 6. On the issue of repeat offending,17 his Honour cited the statements of Tottle J in Lemmon v Walker-McLean,18 which are as follows: Driving whilst under suspension involves an element of disobedience of an order of the court that means that the offence is regarded as serious. Where the offence is committed a number of times it may readily be inferred that the disobedience is wilful. Repeat offending requires weight to be given to personal and general deterrence. 7. His Honour accepted that the appellant's record of driving while disqualified was not aggravating as such, but his Honour 17 ts 10 (15 May 2026). 18 Lemmon v Walker-McLean [2019] WASC 475, citing Lyon v Read [2012] WASC 96 [25] (EM Heenan J) and Neves v Rogers [2013] WASC 440 [28] and [48] (Beech J). -- 12 of 39 -- [2026] WASC 256 LUNDBERG J Page 13 recognised that there was 'some real need for personal deterrence' and the court needed to 'make an example' of the appellant, so that other people will not choose to drive under disqualification. His Honour stated as follows:19 You made a decision to drive to work when you were under disqualification. That is a decision that you have made for the sixth time, according to my reading of your record. Most recently, 6 March [2025], 3 May [2025], and then this offence. All of those, in my view, show a wilful defiance of the court disqualification. It is not a matter of simply counting them and deciding what to do. Everything has to be taken into account, but it is serious that you are on your sixth. So you are not allowed to drive at all, but you did. 8. The Magistrate then made reference to the presence of a drug in the appellant's oral fluid. His Honour noted that the appellant was not allowed to drive with a drug in his oral fluid, but he had done so for the fourth time. His Honour expressly noted that it had not been 'suggested that you are under the influence of that drug' and:20 …although I have concerns that you may well have been affected in terms of your tiredness by virtue of using that particular drug, which is particularly famous for giving people the nods, I'm not going to sentence you on that basis. You've said that's not what was happening. I'm required, unless the prosecution want to prove that it was, to sentence you on that basis, so that's the basis I will sentence you on. 9. The 'basis' upon which his Honour would sentence the appellant, as appears from this part of the transcript, particularly the italicised portion, is that he was not under the influence of the illicit drug at the time of the collision. 10. His Honour then observed that the appellant 'still made the decision, knowing that you had taken drugs, to get into a car that you weren't allowed to get into at all, and drove it'. He described that as a 'careless decision' given the appellant was exhausted from work and knew that to be so.21 This decision ended in the appellant falling asleep at the wheel, travelling on the wrong side of the road and colliding with the other vehicle. 19 ts 11 (15 May 2026). 20 ts 11 (15 May 2026). 21 ts 11 (15 May 2026). -- 13 of 39 -- [2026] WASC 256 LUNDBERG J Page 14 11. His Honour accepted the appellant's charge of careless driving was at the lowest end, recognising the other offences of careless driving causing grievous bodily harm and careless driving causing death. His Honour noted that the culpability of the conduct constituting the careless driving was only one aspect of the offence, and the consequence of the offence was the element that distinguished it from the less serious offence of careless driving, referring to Curthoys J's decision in Wallace v Curyer.22 His Honour observed that the range of sentences reasonably open in a sound discretionary judgment will be determined not only by reference to the offender's conduct, but significantly by the consequences, and those consequences will be invariably unintended. 12. As to the consequences in this case, his Honour noted that the appellant was:23 …very lucky that something more serious didn't happen, given the speed, given that road, given you were on the wrong side, and given the collision. You were very lucky it was bodily harm only, and that you weren't here on a more serious charge. It also – ultimately, though, His Honour [referring to the decision of Curthoys J in Wallace v Curyer] said that culpability remains an important factor. And your culpability is aggravated by the fact that you had a drug in your oral fluid. Not for the first time. Something that has happened on a number of occasions. Also that you were under disqualification. You're not even meant to be driving, let alone driving at the point at which you are exhausted and fell asleep while you were driving and put the occupants of your vehicle at risk and injured another. I have taken into account that you have never been sentenced to a term of imprisonment before with respect to your offending. But as I say, general deterrence is a significant factor and it does seem to me that there is absolute need for personal deterrence with respect to these. 13. His Honour then addressed the terms of s 39(3) of the Sentencing Act, acknowledging that he must not use a more serious sentencing option unless he was positively satisfied that it was not appropriate to use a less serious sentencing option. 22 Wallace v Curyer (Unreported, SJA 1105 of 2018, transcript of appeal hearing on 25 January 2019). 23 11 - 12 (15 May 2026). -- 14 of 39 -- [2026] WASC 256 LUNDBERG J Page 15 His Honour also noted, consistently with s 6(4) of the Sentencing Act, that the court must not impose a term of imprisonment unless satisfied that the seriousness of the offence was such that only imprisonment would be justified, or the protection of the community required it. His Honour reminded himself that a sentence of imprisonment was the sentence of last resort.24 14. His Honour then concluded:25 In my view, your offending can only be met with a term or terms of imprisonment because of the seriousness of the offence and because, in my view, the protection of the community requires that … [You] have continued to drive under disqualification, you have driven at times with drugs in your oral fluid and, on this occasion, you drove under disqualification with drugs in your oral fluid while you were so tired as for that to be careless. And that has resulted in injuries to other people that, as I say, you were lucky … were not more serious. In relation to the careless driving causing bodily harm, in my view the appropriate sentence is seven months and 14 days. In relation to the driving under disqualification, three months imprisonment. In a sense, there should be some cumulacy but overall, taking into account totality, in my view seven months and 14 days is appropriate. So I will make the driving under disqualification concurrent. 15. Having concluded that a term of imprisonment should be imposed, his Honour then assessed whether the term should be suspended, conditionally suspended, or partially suspended sentence. His Honour expressly reminded himself that he must be positively satisfied that each of these options was not appropriate before he could impose an immediate term of imprisonment. His Honour then concluded:26 Ultimately, because of that wilful defiance that has gone … on and on for a reasonable period of time, as well as what occurred here in relation to what I take the view of being a reasonably high end of careless driving, notwithstanding what the outcome 24 ts 12 (15 May 2026). 25 ts 12 (15 May 2026). 26 ts 12 - 13 (15 May 2026). -- 15 of 39 -- [2026] WASC 256 LUNDBERG J Page 16 was, I am positively satisfied it would be wrong to suspend in any way. That term of – or those terms of imprisonment adding up to seven months and 14 days will be immediately served. I will disqualify you for the minimum periods with respect to each of those. In relation to the prescribed drug in your oral fluid, a fine of $1500, costs of $308.80, analyst fee of $230, and you are disqualified for six months. That's seven months and 14 days starting today. The appellant's criminal history 40 The appellant has an extensive criminal record, largely concerning driving and drug-related offences, which is detailed in the table in Attachment A to the court's earlier reasons. 41 The appellant's prior convictions include numerous offences of driving without authority contrary to s 49(1)(a) of the RTA (at least six prior occasions), excessive speeding offences, driving whilst intoxicated, driving with a prescribed illicit drug (on three prior occasions), various drug offences, disorderly behaviour, assault on a public officer, reckless driving contrary to s 60(1) of the RTA, and dangerous driving contrary to s 61(1) of the RTA. 42 The reckless and dangerous driving convictions are somewhat dated, having being committed in 2008 and 2007. The majority of the prior offences of driving without authority occurred between 2013 and 2025. The offences of driving with a prescribed illicit drug occurred in 2020 and in 2024. Grounds of appeal 43 The grounds are described below, noting that ground 2 has been abandoned and grounds 3 and 4 have been added since the original notice was filed: 1. The learned sentencing magistrate erred in law by imposing a sentence for the offence [of] careless driving occasioning bodily harm (JO 2347/2026) which was manifestly excessive. 2. The learned sentencing magistrate erred in law by imposing a total effective sentence which infringed the first limb of the totality principle. -- 16 of 39 -- [2026] WASC 256 LUNDBERG J Page 17 3. The learned sentencing magistrate erred in fact and law by finding that, at the time the Appellant committed the offence [of] careless driving occasioning bodily harm (JO 2347/2026), the Appellant had driven a motor vehicle while knowing there was an illicit substance or substances in his oral fluid. Particulars i. The learned sentencing magistrate erred in law by denying the Appellant procedural fairness in relation to the impugned finding. ii. The learned sentencing magistrate erred in fact by making the impugned finding in circumstances where it was not admitted and there was otherwise no evidence capable of establishing it beyond reasonable doubt. 4. In the alternative to ground 3, the learned sentencing magistrate erred in law by treating the presence of illicit substances in the Appellant's oral fluid as an aggravating factor for the offence careless driving occasioning bodily harm (JO 2347/2026). 44 It may be observed that, with the abandonment of ground 2, none of the remaining appeal grounds directly challenge the sentence imposed for the offence of driving while not being authorised (JO 2346/2026), nor the sentence imposed for the offence of driving with a prescribed drug in his oral fluid (JO 3250/2026). Grounds 1, 3 and 4 are solely directed to the head sentence imposed for the careless driving charge (JO 2347/2026). 45 That said, as the respondent observed, the court has power to vary the sentences for the other offences pursuant to s 41(2) CAA in the event the sentence for the careless driving charge is varied or set aside. 46 There was an application by the appellant to adduce additional evidence on the appeal, being a copy of the reference provided by the appellant's former employer. Quite properly, this application was not opposed by the respondent. The employer's reference is dated 13 May 2026 and was filed on behalf of the appellant with the Magistrates Court in Joondalup, and copied to the prosecutor.27 It is possible, however, the reference was not in fact seen by the sentencing Magistrate at first instance as it is not referred to in the sentencing remarks. In these circumstances, I allowed the application. 27 Glenister Affidavit [3] and Attachments HWG1 and HWG2. -- 17 of 39 -- [2026] WASC 256 LUNDBERG J Page 18 47 It is appropriate to address the grounds of appeal in the order in which counsel for the appellant approached them at the hearing of the appeal, commencing with ground 3. Before doing so, there are some principles of law which I should state, which inform the approach of the court on an appeal such as this. Relevant principles Sentencing Act provisions 48 Section 6(1) of the Sentencing Act provides that the sentence imposed on an offender must be commensurate with the seriousness of the offence. Section 6(2) provides that the seriousness of the offence must be determined by taking into account: (a) the statutory penalty for the offence; and (b) the circumstances of the commission of the offence, including the vulnerability of any victim of the offence; and (c) any aggravating factors; and (d) any mitigating factors. 49 Section 6(4) then provides that a court must not impose a sentence of imprisonment 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'. 50 Section 15 empowers a sentencing court to receive information which is not admissible under the laws of evidence, and to inform itself in any way it thinks fit. The discretionary power to receive information in this way has limits, including the need to accord procedural fairness to an offender: Tanner v The State of Western Australia.28 51 Section 39(2) describes a list of sentencing options which are available to a sentencing court. A court must not use the sentencing option unless it is satisfied, having regard to div 1 of pt 2 of the Sentencing Act, that it is not appropriate to use any of the options listed before that option: s 39(3). 52 In the present case, a question as to whether the sentence of imprisonment ought to have been suspended arises, noting the court had the power to so in the circumstances of this case: s 76(1). As to the 28 Tanner v The State of Western Australia [2013] WASCA 142 [134] - [135]. -- 18 of 39 -- [2026] WASC 256 LUNDBERG J Page 19 exercise of that power, s 76(2) provides, in effect, that suspended imprisonment is not to be imposed unless imprisonment for a term or terms equal to that suspended would be 'appropriate in all the circumstances'. Suspended imprisonment, under pt 11 of the Sentencing Act, must therefore be considered before a term of imprisonment to be served immediately is imposed. 53 By operation of s 86 of the Sentencing Act, a sentencing court is prohibited from sentencing an offender to a term of 6 months' imprisonment or less, unless, for example, the aggregate of the term imposed and any other term or terms imposed by the court, is more than 6 months, or the offender is already serving or is yet to serve another term. Sentencing is a discretionary exercise 54 Sentencing is a discretionary exercise. An appellate court must be mindful not to substitute its own opinion for that of the sentencing court merely because the appellate court would have exercised the sentencing discretion in a different manner: Lowndes v The Queen.29 The sentencing court must be allowed as much flexibility in sentencing as is congruent with consistency of approach and as accords with the statutory regime that applies: Markarian v The Queen.30 55 An appellate court may only intervene if the appellant demonstrates an express or implied material error in sentencing: Salkilld v The State of Western Australia.31 56 An implied error may be said to have arisen if the type or length of sentence imposed could not have been reached in the exercise of proper sentencing discretion. 57 If an express error of fact is alleged, before a court can intervene, it must find that the error is material. In this sense, a material error of fact is one that affects, or is capable of affecting, the sentence actually imposed by the sentencing court: Fernandes v The State of Western Australia.32 As the respondent noted, and speaking generally, this is a low threshold because it will rarely be the case that an error could not have made a difference: Guerinoni Nominees Pty Ltd v Cullen.33 29 Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 [15]. 30 Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 [27]. 31 Salkilld v The State of Western Australia [2017] WASCA 168 [48]. 32 Fernandes v The State of Western Australia [2009] WASCA 227 [9] - [10]. 33 Guerinoni Nominees Pty Ltd v Cullen [2022] WASC 337 [50]. -- 19 of 39 -- [2026] WASC 256 LUNDBERG J Page 20 58 Where the error is material, this court must consider the sentence it would impose if it was exercising the sentencing discretion afresh, but with regard to the proviso in s 14(2) of the CAA. The proviso operates such that if this court would impose the same penalty, then no substantial miscarriage of justice will have occurred. However, if this court considers that a lesser penalty is appropriate, a substantial miscarriage of justice will have occurred. Disputed facts when sentencing 59 I have mentioned the power to receive evidence as part of the sentencing process, which is found in s 15 of the Sentencing Act. Further to this, it is accepted that a sentencing judge may not take disputed facts or circumstances into account in a way that is adverse to the interests of an offender unless those facts or circumstances have been established beyond reasonable doubt: RMM v The State of Western Australia.34 60 Further, procedural fairness ordinarily requires that a party be given the opportunity to address the relevant issues and be informed of adverse material, including an opportunity to be heard on any proposed departure from an agreed factual or legal position: Suleiman v The State of Western Australia.35 Examination of a court's sentencing remarks 61 When undertaking an analysis of the sentencing remarks made by a Magistrate, it is appropriate to recognise the well-accepted proposition that such sentencing remarks must be read as a whole, in context, not to be construed minutely and not with an eye finely tuned for the perception of error: Harper v Page.36 62 In Willenberg v Downey,37 Pritchard J expressed the position in the following terms: Moreover, it is well recognised that the decisions of magistrates should not be pored over with a fine-tooth comb in an endeavour to identify appellable error, having regard to the circumstances in which reasons for decision are delivered, most often on an ex tempore basis, in a court with a very busy workload. 34 RMM v The State of Western Australia [2018] WASCA 183 [203]. 35 Suleiman v The State of Western Australia [2017] WASCA 26 [41] - [48]. 36 Harper v Page [2004] WASCA 267 [24]. 37 Willenberg v Downey [2015] WASC 282 [61]. -- 20 of 39 -- [2026] WASC 256 LUNDBERG J Page 21 63 As the foregoing passage indicates, it is to be remembered that the Magistrates Courts in this State handle very busy lists and an approach to appellate review which invites a fine dissection of the sentencing reasons of a Magistrate would, over time, likely lead to delays in the sentencing process at first instance and overall delays in the administration of justice. 64 The potential for such an impact on the administration of justice led Malcolm CJ in Nevermann v The Queen38 to accept, in the context of matters in both the District Court and the Magistrates Court, it was 'not necessary for a full or detailed statement of reasons to be given in every case' and such 'reasons may be stated shortly, without being developed in any detail'. A Magistrate is not required to state that all alternatives have been considered and excluded. Ground 3 – whether the Magistrate sentenced the appellant on the basis he knew he had the illicit drug in his oral fluid? Appellant's submissions 65 The essence of ground 3 is that the Magistrate denied the appellant procedural fairness by sentencing him on the basis that he drove the vehicle while knowing he had an illicit substance in his oral fluid. The appellant says this finding was not accepted or admitted by the appellant for the purposes of the sentencing process.39 That may be accepted. 66 The appellant refers to the following statements made by the Magistrate, which appear at separate portions of the transcript: You are not allowed to drive if you have a drug in your oral fluid, but you did, and, again, you chose to do that (ts 11). But you still made the decision, knowing that you had taken drugs, to get into a car that you weren't allowed to get into at all, and drove it (ts 11). [Y]our culpability is aggravated by the fact that you had a drug in your oral fluid (ts 12). 67 The appellant further submits that the question whether the appellant was intoxicated at the time of the offence, and whether there was a nexus between the illicit drug and the appellant falling asleep, 38 Nevermann v The Queen (1989) 43 A Crim R 347, 350 (Malcolm CJ). 39 AS [10] - [13]. -- 21 of 39 -- [2026] WASC 256 LUNDBERG J Page 22 were expressly rejected by the appellant's counsel prior to the sentencing.40 Of course, the transcript reflects the Magistrate's awareness of this.41 68 The appellant submits: [12] The Appellant had no opportunity to dispute the proposition that he drove the motor vehicle at the material time while knowing he had illicit drugs in his oral fluid. It was not a matter alleged by the prosecution and was not a matter put on his behalf in mitigation. The learned sentencing magistrate did not raise the issue with either party. It was plainly a matter that the sentencing magistrate considered increased the overall seriousness of the Appellant's offending. It was not a matter which was so obvious or self-evident that it could be taken to be tacitly admitted. [13] There was a practical injustice to the Appellant. He could have clarified by submission the state of his knowledge at the material time and could have called evidence if necessary. He was denied procedural fairness by the learned sentencing magistrate failing to raise the state of his knowledge vis-à vis the presence of the illicit drugs in his oral fluid at the material time. 69 The appellant asserts there was no direct evidence as to the state of his knowledge concerning the presence of the illicit drugs in his oral fluid at the time of the offence. There was evidence that he had admitted taking amphetamine to police at the scene and there was the explanation proffered in mitigation. The appellant says that, without any evidence of the broader context of the admission, 'there was simply insufficient material before the court to ground any finding beyond reasonable doubt about the appellant's knowledge'.42 70 The appellant says there is a further difficulty with a finding about the appellant's knowledge, namely that it would essentially be an opinion: [15] …The Appellant could not know whether he would have drugs in his oral fluid, at most he would only be aware of a risk that illicit drugs would be present in his oral fluid. 71 Accordingly, the appellant submits it was not open to the Magistrate to find beyond reasonable doubt that the appellant 40 ts 4 (15 May 2026). 41 ts 5 (15 May 2026). 42 AS [14]. -- 22 of 39 -- [2026] WASC 256 LUNDBERG J Page 23 knowingly drove his motor vehicle while having an illicit drug in his oral fluid.43 Respondent's submissions 72 The respondent contends that a reading of the entirety of the Magistrate's sentencing remarks, without an eye finely tuned for error, reveals some ambiguity in the statements made by the Magistrate, but ultimately demonstrates no error of fact.44 73 The respondent accepts the first of the three statements might arguably refer to a level of awareness by the Appellant that he was driving with an illicit drug in his oral fluid. However, when read in the context of the sentencing remarks as a whole, and in particular the two other identified passages, the respondent submits it is apparent that his Honour qualified the first statement. The appellant submits: [50] …Properly understood, his Honour did not find that the Appellant knew an illicit drug was present in his oral fluid; rather, his Honour found that: (a) at the time the Appellant committed the careless driving offence, the Appellant knew that he had taken an illicit drug/s two days prior;45 (b) the Appellant chose to drive a car despite that knowledge;46 and (c) this was a ''careless decision''.47 [51] The preferred reading of the Magistrate's remarks is as a finding about the Appellant's careless indifference to driving a vehicle knowing that he had taken an illicit substance in the two days prior to committing the careless driving offence, rather than a finding that the Appellant knew he had an illicit substance in his oral fluid. [52] This reading is reinforced by the Magistrate's remarks that the Appellant was sentenced on the basis that he was not under the influence at the time of the offending, and there was no nexus between the illicit drug being in his oral fluid and the careless driving. 43 AS [16]. 44 RS [47] - [49]. 45 Referring to ts 4 - 5. 46 Referring to ts 11. 47 Referring to ts 11. -- 23 of 39 -- [2026] WASC 256 LUNDBERG J Page 24 Disposition 74 I have earlier set out the principles which guide an appellate court's analysis of a sentencing court's remarks, and the caution which should be exercised before engaging in a dissection of the court's reasons with an eye for error. 75 In the present case, these principles must firmly be borne in mind when the analysis of the Magistrate's sentencing reasons is undertaken as there are some ambiguities apparent, which the appellant has, with respect, properly emphasised. I have extracted (at [65] above) the passages upon which the appellant focuses. Upon analysis, though, the respondent's preferred reading of the reasons should be accepted, in my view, for the following reasons. 76 First, there was a factual issue which arose during the sentencing process concerning the illicit drugs taken by the appellant. The issue was whether the intoxicating effects of the drugs had worn off by the time of the collision and so whether or not there was a nexus between the drugs being in the appellant's oral fluid and his state of alertness on the day in question. 77 This issue was expressly identified by counsel for the appellant in responding to the statement of facts (ts 5) and was recognised by his Honour on two occasions during the hearing as a factual issue which was in contest (ts 5 and ts 11). 78 It is palpably clear, in my view, from his Honour's reasons that he was sentencing the appellant on the basis that he was not under the influence of the drugs at the time of the collision. This is apparent from the specific question directed to the prosecutor by the Magistrate at ts 5 (at around 11.45am), asking whether the prosecutor was: … happy for me to sentence him on the basis, obviously, that he was not under the influence but, also, that there was no – that there is no nexus between the illicit drug being in his oral fluid and the falling asleep. 79 At ts 11 (at around 11.55am), the Magistrate identified his concern that the appellant 'may well have been affected in terms of your tiredness by virtue of using that particular drug' but then his Honour expressly confirmed he would not sentence the appellant on that basis. 80 Second, related to the first issue is the factual question whether the Magistrate sentenced the appellant on the basis that he knew or was -- 24 of 39 -- [2026] WASC 256 LUNDBERG J Page 25 aware he had an illicit drug in his oral fluid at the time of the collision. This is the specific error to which ground 3 is directed. 81 The appellant's knowledge as to the presence of the drug in his oral fluid was not admitted and not proven beyond reasonable doubt by the prosecution as part of the sentencing process. 82 It was, of course, accepted by the appellant for the purposes of sentencing that he had taken the illicit drugs some two days before the collision. It was also admitted that the appellant had methylamphetamine and cannabis in his oral fluid at the time of the collision. 83 Given the observations made by the Magistrate to which I have earlier referred, I regard it as inherently unlikely the Magistrate approached the sentencing of the appellant on the basis that the appellant knew he had an illicit drug in his oral fluid whilst driving on 3 February 2026. Indeed, that would cut across his Honour's recognition that it was not permissible, in the absence of a trial of issues, to sentence the appellant on the basis he was under the influence of the drugs at the time of the collision. 84 The three statements emphasised by the appellant must be seen in the context of the other express indications from his Honour, and from a consideration of the transcript as a whole. When viewed in totality, the statements on which the appellant focuses must necessarily be seen, in my view, as indications the Magistrate approached the sentencing on the basis that: (a) the appellant well knew he had taken the illicit drugs some days before the collision; (b) the appellant made a conscious decision to drive the vehicle notwithstanding his earlier consumption of the drugs and made a conscious decision to drive the vehicle while being exhausted from work; and (c) his decision to drive in these circumstances was careless. 85 Viewed in this way, the Magistrate regarded the circumstances of carelessness on the part of the appellant as including his decision to consume illicit drugs only days before driving and then driving while necessarily knowing that he was exhausted from his work commitments as a deck hand on a fishing boat. Whether this was permissible (insofar -- 25 of 39 -- [2026] WASC 256 LUNDBERG J Page 26 as the presence of the illicit drugs is concerned) is the subject of ground 4. But what is important is that, when analysed as I have outlined, no express error as to the appellant's knowledge is apparent from the transcript in the manner suggested by the appellant by ground 3. As the asserted finding of fact was not made by the Magistrate, no question as to any denial of procedural fairness arises. 86 I would grant leave to appeal in respect of this ground, but dismiss the ground. Ground 4 – whether the Magistrate imposed double punishment? Appellant's submissions 87 This ground is articulated as an alternative to ground 3. 88 The appellant submits that the Magistrate expressly found that the presence of illicit drugs in the appellant's oral fluid was an aggravating factor in relation to the offence of careless driving occasioning bodily harm. The appellant points to the sentencing remarks at ts 11 and ts 12. In particular, the appellant refers to the following passage: And your culpability is aggravated by the fact that you had a drug in your oral fluid. Not for the first time. Something that has happened on a number of occasions. 89 The appellant contends that any suggestion the term 'aggravated' was used in colloquial sense should be rejected. The appellant submits that:48 …The learned sentencing magistrate was expressly addressing the issue of the Appellant’s culpability in relation to his carelessness at that point of his remarks and went on to address the aggravating factor of the Appellant driving without a licence directly after. In any event, the term aggravated in this context is unambiguous and requires no eye keenly attuned to the detection of error to divine its meaning. 90 The appellant notes that he received a fine for the offence of driving with a prescribed illicit drug in his oral fluid, and says that, unless the Magistrate was treating it separately as an aggravating factor, there was simply no relevance to his Honour's reference to it in the context of imposing terms of imprisonment on the appellant.49 48 AS [20]. 49 AS [21]. -- 26 of 39 -- [2026] WASC 256 LUNDBERG J Page 27 91 Further, the appellant contends that the mere fact that the appellant had prescribed illicit drugs in his oral fluid could not aggravate the offence of careless driving causing bodily harm. The position might be otherwise if it could be demonstrated that there was some connection between the presence of the drug and the carelessness of the driving, or this demonstrated a cavalier attitude to the law.50 92 Of these alternatives, the former was expressly disavowed by the prosecution and accepted by the Magistrate. As to the latter, the appellant says it would require the appellant to know that he had an illicit drug in his oral fluid. 93 Further, the appellant says he was separately punished for driving with an illicit drug in his oral fluid and his conduct in relation to this offence was no more relevant than the rest of his criminal history, which cannot be taken to be an aggravating factor, relying on the principle expressed by the High Court in Pearce v The Queen.51 The appellant submits that it would be an error for a sentencing court to have regard to aggravating factors in a way which results in double punishment.52 Respondent's submissions 94 The respondent submits it was open to the Magistrate to have regard to the circumstances of the offending in sentencing the appellant, including the appellant's driving while a prescribed illicit drug was present in his oral fluid. The Magistrate properly considered that the appellant's overall culpability was increased by the presence of the illicit drug at the time of driving, and the appellant's driving while not authorised to do so, and there was no error in this reasoning.53 95 The fact that the appellant was charged separately in relation to the illicit drug offence and the 'no authority to drive' offence does not, according to the respondent, preclude the Magistrate from taking these matters into account as aggravating factors.54 No authority was cited for this contention. 50 AS [22]. 51 Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 [40]. See AS [23] and AS Reply [1]. 52 AS Reply [1]. 53 RS [59]. 54 RS [60]. -- 27 of 39 -- [2026] WASC 256 LUNDBERG J Page 28 Disposition 96 As earlier noted, s 6(2)(c) of the Sentencing Act requires a sentencing court, in assessing the seriousness of the offence in question, to take into account the circumstances of the commission of the offence as well as any aggravating factors, among other matters. Section 7(1) describes aggravating factors as those factors 'which, in the court’s opinion, increase the culpability of the offender'. By s 7(2)(b), an offence is not aggravated by the fact the offender has a criminal record. 97 The gist of this ground of appeal is that the Magistrate took into the presence of the illicit drug in the appellant’s oral fluid as a circumstance of aggravation for the careless driving charge, although the appellant had been separately charged for having the illicit drug in his system. 98 For my part, I accept the appellant’s submission that the sentencing remarks are open to be read in this fashion. That is to say, it is evident from the reasons that the Magistrate regarded the presence of the illicit drug as an aggravating feature of the careless driving charge, and sentenced the appellant on that basis. His Honour was addressing, at that portion of the transcript, the sentence to be imposed for the careless driving charge and regarded the presence of the drug in the appellant's oral fluid as being a relevant feature of his overall culpability for that offence. I respectfully agree with the appellant's submission that this disclosed an error in the sentencing process in two respects. 99 First, it is unclear to me how the presence of the drug amounted to a circumstance of aggravation when the prosecution accepted there was no nexus between the drug and the appellant falling asleep at the wheel, and further, there was no factual finding that the appellant knew the drug was in his system at the time. The presence of the illicit drugs in the appellant's oral fluid is an admitted fact, of course, but I do not consider it was correct to treat it as an aggravating feature of the offence, despite the fact the presence of the drug formed part of the circumstances in which the offence was committed. 100 In those circumstances, the sentencing of the offender has been undertaken on an incorrect factual basis. 101 Second, it is likely the appellant was twice punished in these circumstances given he was separately sentenced for the offence under s 64AC(1) of the RTA, with a fine of $1,500 being imposed in addition -- 28 of 39 -- [2026] WASC 256 LUNDBERG J Page 29 to the custodial sentence which was imposed for the careless driving offence. That represents an error, in my respectful view. In Pearce v The Queen,55 the following oft-cited proposition was stated: To the extent to which two offences of which an offender stands convicted contain common elements, it would be wrong to punish that offender twice for the commission of the elements that are common. No doubt that general principle must yield to any contrary legislative intention, but the punishment to be exacted should reflect what an offender has done; it should not be affected by the way in which the boundaries of particular offences are drawn. Often those boundaries will be drawn in a way that means that offences overlap. To punish an offender twice if conduct falls in that area of overlap would be to punish offenders according to the accidents of legislative history, rather than according to their just deserts. 102 This proposition was described by the plurality in the High Court as being either 'good sentencing practice' or a 'positive rule of law',56 but was not intended to invite an inquiry attended by 'excessive subtleties and refinements', nor 'semantics', but should be approached as 'a matter of common sense'.57 103 That such a common sense approach is required can be seen from the assessment by the High Court in the later case of Nguyen v The Queen.58 In that matter, the appellant pleaded guilty to charges of manslaughter and wounding with intent to cause grievous bodily harm concerning the same victim. All members of the court accepted it would be open to a sentencing court to impose wholly concurrent sentences provided that the criminality of both offences for which the appellant was sentenced was appropriately reflected in the sentence for manslaughter. 104 Reference should also be made, in this regard, to the decision of the NSW Court of Criminal Appeal in Hesketh v R,59 particularly the analysis of Bell P (as his Honour then was) at [37] – [39]. Bell P there remarked that:60 … the fact that the same set of underlying acts may contribute to or relate to more than one offence does not mean that the offender is necessarily being punished twice when sentenced for the different 55 Pierce v The Queen [40]. 56 Pierce v The Queen [41]. 57 Pierce v The Queen [42]. 58 Nguyen v The Queen [2016] HCA 17; (2016) 256 CLR 656 [39] (Bell and Keane JJ), [62] (Gageler, Nettle and Gordon JJ). 59 Hesketh v R [2021] NSWCCA 262; (2021) 106 NSWLR 200. 60 Hesketh v R [38]. -- 29 of 39 -- [2026] WASC 256 LUNDBERG J Page 30 offences. Decisions such as Pearce, Johnson, Nguyen and R v Hilton (in this Court and applying Pearce) mean, however, that where there is a commonality of underlying facts, there may be a high degree of, or even complete, concurrency where separate sentences are being imposed or, where an aggregate sentence is being imposed, there may be no, or only a modest degree, of notional cumulation, reflecting the extent of the commonality of the underlying conduct. (footnotes omitted) 105 The difficulty in the present case is that the appellant was sentenced to an immediate term of imprisonment for the careless driving charge, and also received a fine of $1,500 for the offence of breaching s 64AC(1) of the RTA. As a result of the different forms of disposition for the two offences, no question of accumulation or concurrency arose, and the resulting outcome was that the appellant was punished twice for the conduct in question. 106 The Magistrate's assessment of the culpability of the appellant for the careless driving offence thus included a consideration of the presence of the drug in the oral fluid of the appellant. In my view, that was a material aspect of the sentencing of the appellant for that offence and justifies a conclusion that there has been a substantial miscarriage of justice. 107 For these reasons, I consider that leave to appeal on ground 4 should be given and the ground should be upheld. The sentence imposed for the careless driving should be set aside and the appellant resentenced. Before I address the resentencing of the appellant, I shall briefly turn to ground 1. Ground 1 – whether the sentence imposed for the offence of careless driving was manifestly excessive? 108 The appellant's submissions on this ground were directed at the type of sentence imposed by the Magistrate rather than the length of the sentence.61 The appellant's primary contention was that, in all the circumstances, the failure by the Magistrate to suspend the term of imprisonment resulted in a manifestly excessive disposition for the offence of careless driving. Reliance was placed by counsel for the appellant on the sentences imposed and approached adopted in Jackman v Davidson62 and Rijavec v WA Police.63 61 AS [25] and [26]. 62 Jackman v Davidson [2019] WASC 364; (2019) 90 MVR 11. 63 Rijavec v WA Police [2025] WASC 243. -- 30 of 39 -- [2026] WASC 256 LUNDBERG J Page 31 109 In support of this contention, the appellant submitted that the consequences of the careless driving by the appellant were at the very lowest end of the scale in terms of seriousness.64 The appellant observed that the relevant bodily harm was slight, constituted by bruising to the right hip of the victim, and the culpability of the appellant was not at the low end, but could not be said to be at the highest end. 110 The appellant submitted that 'driving while tired was a serious error in judgment, however, it is not as serious as driving while intoxicated, driving while using devices or driving at speed', and the appellant's overall culpability was described as being in the moderate range.65 111 The appellant accepted there was a heightened need for specific deterrence due to the appellant's criminal history and 'due to his cavalier attitude to the law in driving while under suspension'. Further, the appellant accepted that the only significant mitigation was the pleas of guilty at the earliest opportunity.66 112 For its part, the respondent submitted that the appellant had failed to demonstrate that the imposition of immediate imprisonment was unreasonable or unjust.67 In particular, the respondent submitted that the authorities relied upon, and the circumstances of this case, do not support the contention that a term of immediate imprisonment did not fall within the range of appropriate sentences reasonably open to the Magistrate. 113 Given the conclusion I have reached on ground 4, and the need to resentence the appellant, it is unnecessary to express any concluded view on ground 1 and I will dismiss the ground. As will be seen, exercising the sentencing discretion afresh and as at today, I consider that a suspended term of imprisonment is an appropriate disposition. 64 AS [36]. 65 AS [37]. 66 AS [38]. 67 RS [41]. -- 31 of 39 -- [2026] WASC 256 LUNDBERG J Page 32 Resentencing of the appellant 114 It is necessary to resentence the appellant.68 115 The parties accepted that I had the necessary materials before me to undertaken this exercise, and I received further submissions in this regard from counsel for the appellant at the hearing on 24 June 2026. 116 In undertaking this task, I have had regard to the principles as to sentencing set out in these reasons, in particular those detailed at [48] to [60] above. At the hearing on 25 June 2026, I gave the sentencing remarks which are set out in Attachment A to these reasons. The most significant aspect of the sentences imposed by this court is that I have ordered that the appellant be sentenced to a term of imprisonment of 6 weeks and 14 days for the offence of careless driving, with that term to be suspended under pt 11 of the Sentencing Act rather than served immediately.69 The term will be suspended for a period of 12 months with effect from 15 May 2026. 117 The term of imprisonment of 3 months for the offence of driving whilst disqualified will be varied, consistent with the above disposition, so that it is suspended for 12 months. Conclusion and orders 118 For the foregoing reasons, I will grant leave to appeal on each of the grounds (Ground 1, 3 and 4), but I will dismiss grounds 1 and 3. Ground 4 is upheld, and the sentence imposed for the careless driving charge (JO 2347/2026) will be set aside. The appeal will be allowed on ground 4. The appellant has been re-sentenced as explained in Attachment A to these reasons. 68 CAA, s 14(1)(d). 69 Sentencing Act, s 76. -- 32 of 39 -- [2026] WASC 256 LUNDBERG J Page 33 ATTACHMENT A Sentencing remarks on 25 June 2026 1 Mr Soma, given the conclusion I have reached on this appeal, I am now required to resentence you for the offence of careless driving causing bodily harm, contrary to s 59BA(1) of the Road Traffic Act. You have pleaded guilty to that offence and the full reduction to your sentence of 25% should be allowed as a result. 2 As that was the head sentence imposed by the Magistrate, I will also consider whether I should vary the sentences imposed for the other offences to which you pleaded guilty, being the offence of driving whilst disqualified and driving with a prescribed illicit drug in your oral fluid. 3 The facts on you will be sentenced are those which were read out by the prosecutor at the hearing on 15 May 2026. In essence, you fell asleep at the wheel of your vehicle while driving at high speed, on you return journey from your work as a deckhand. Your explanation is that you were exhausted. Your vehicle drifted to the other side of the road and collided with another vehicle with three occupants. One of those occupants was taken to hospital with a bruised hip, among other injuries. 4 It is simply fortuitous that the collision did not result in graver consequences for all four people involved, including yourself. 5 It is admitted that you had taken methylamphetamine and cannabis some days before this event. Those drugs were in your oral fluid on the day of the collision. 6 I accept that, although you knowingly consumed the drugs some days beforehand, you did not know you had the drugs in your system at the time of the collision. I also accept that you were not under the influence of these drugs at the time and so there was no nexus between the drugs in your system and the fact you fell asleep. I approach the sentencing on the basis that you fell asleep as a result of the exhaustion caused by your work commitments as a deck hand and as a result of the necessary travel involved. 7 In sentencing you for this offence, I must impose a sentence which is commensurate with the seriousness of that offence. How is that determined? The seriousness of an offence is determined by taking into account the penalty imposed by the statute, the circumstances of the -- 33 of 39 -- [2026] WASC 256 LUNDBERG J Page 34 offence in question, any aggravating factors, and any mitigating factors. As to whether a sentence of imprisonment should be imposed, the law says that I must not impose such a sentence unless I decide that the seriousness of the offence is such that only imprisonment can be justified or the protection of the community requires it. 8 The offence of careless driving causing bodily injury is a serious offence. The offence carries a maximum penalty of 3 years imprisonment or a fine of $36,000, together with a mandatory disqualification from holding or obtaining a driver's licence for a period of not less than 3 months. 9 I have reviewed and had regard to the sentences which have over time been imposed in respect of offences of careless driving causing death, causing grievous bodily harm, and causing bodily harm, as well as the offence of dangerous driving, which were comprehensively surveyed by his Honour Justice Palmer in the decision of Van Oyen v Kosovich [2025] WASC 364. I need not repeat that survey of authorities here. 10 The circumstances and manner in which you drove on the occasion in question were serious and reflect a disregard on your part for other persons on the road in this State. You must have known there was a risk you would be inattentive at the wheel on the day in question, given the exhaustion you were suffering from your work. The collision was not the product of momentary inattention on your part. It was foreseeable. 11 All users of the road in this State will have seen, at some point I'm sure, the signs which have been put up to remind drivers not to drive while fatigued and to look for the warning indications. Fatigue has been described as a 'silent killer on the roads'. 12 Through your actions, Mr Soma, you put other road users at risk of injury by deciding to drive the vehicle. As I have already said, the consequences could have been far worse for all concerned. 13 I accept that your culpability for this offence is, however, not at the high end of the scale. It might be described as moderate. The prosecution accept that characterisation. 14 Your conduct generally displays a very relaxed attitude to your responsibilities when driving vehicles, and to the orders made by the courts of this State which have prohibited you from driving on several occasions. To date, you haven't heeded those prohibitions, Mr Soma. -- 34 of 39 -- [2026] WASC 256 LUNDBERG J Page 35 On numerous occasions when you have been disqualified from driving you have made a decision to drive a motor vehicle. Indeed, it is relevant that you were disqualified from driving on the day these offences occurred and you have been separately sentenced for that offence. 15 I will turn to your personal circumstances. You do not have the benefit of youth in seeking to explain your conduct, but you appear to have a stable lifestyle and good health. 16 At the time of the offences, you were gainfully employed and I have received a positive letter from your former employer which may not have been seen by the Magistrate when he sentenced you. Your employer describes you as a highly valued member of the crew with strong leadership potential. He characterises you as a reliable and hard working person. He says you conduct yourself in a positive, dependable and respectful manner. I also note you have qualifications in the auto electrical field and a marine engine driver qualification. 17 I am told you are engaged to be married, Mr Soma. The wedding is in November this year. You have family attending from overseas. 18 All the indications are that you have a stable support system and what we often describe in the criminal justice system as a prosocial lifestyle, rather than an anti-social lifestyle. 19 Finally, I note you initially spent time in custody at Hakea Prison, following your sentencing in mid-May this year. You were there for around two weeks. I have been told by your counsel that your time at Hakea Prison has had a chilling effect on you. To put it colloquially, you have seen things that can't be unseen. On your first night in custody, your cell-mate self-harmed by pulling a cord from a fan, putting it across his tongue, and then electrocuting himself. The cellmate fell, split his head open, and then electrocuted himself again with the cord. You properly raised the alarm. Further, for a period of time you were unable to make phone calls because other prisoners acted as gatekeepers for the phone using threats and intimidation. You witnessed inmates being assaulted, who made complaints about the assaults, and then were assaulted for complaining. 20 By any stretch, you had a confronting experience during your time in custody at Hakea Prison. The situation obviously improved when you were moved to Wooroloo Prison. -- 35 of 39 -- [2026] WASC 256 LUNDBERG J Page 36 21 Taking all these matters into account, I consider the objective seriousness of the offence requires a sentence which properly reflects the need for personal and general deterrence. Your criminal record does not aggravate the offence, of course, but it underscores the need for personal deterrence, in my view. Your criminal record also indicates to me that fines have not proved to date to be an effective deterrent. A sentence of imprisonment for this offence, rather than imposing a fine or some other non-custodial punishment, is appropriate. The statutory maximum punishment for this offence is 3 years imprisonment. 22 A penalty of imprisonment is of course a sentence of last resort. I must not impose a sentence of imprisonment unless I consider that the seriousness of the offence is such that only imprisonment can be justified or the protection of the community requires it. I am satisfied of those matters. Your conduct here led to foreseeable consequences, not merely a momentary lapse of attention, and took place in broader circumstances which indicate that you have taken something of a cavalier attitude to your responsibilities as a road user and to respecting the orders of courts which have precluded you from driving a vehicle. 23 After applying the full discount I have mentioned for your early plea of guilty, and taking into account the matters put forcefully by your counsel during the appeal and in the original sentencing, I consider a sentence of 8 months imprisonment is appropriate. I would further reduce that term, for reasons I will explain, by 6 weeks to reflect the period of time you have spent in custody already. 24 I should next turn to the other offences for which you were sentenced by the Magistrate. There has been no direct challenge to those penalties in this appeal, but it is necessary and appropriate to address them given the head sentence has been set aside. 25 As to the offence of driving whilst not authorised, the Magistrate imposed a sentence of 3 months imprisonment, to be served concurrently with the sentence for the offence of careless driving. The Magistrate also ordered that you be disqualified from holding or obtaining a driver's licence for 9 months cumulative. This punishment remains appropriate and need not be varied, once questions of totality are considered, save that I will shortly consider whether the sentence of imprisonment ought be varied by being suspended. -- 36 of 39 -- [2026] WASC 256 LUNDBERG J Page 37 26 As to the offence of driving with a prescribed illicit drug in your oral fluid, you were sentenced by the Magistrate by way of a fine of $1,500, which represented an assessment that the maximum fine of $2,000 should be imposed, reduced by 25% to account for your early plea of guilty. The Magistrate also ordered that you be disqualified from holding or obtaining a driver's licence for 6 months, being the minimum period. This punishment remains appropriate and need not be varied, once questions of totality are considered. 27 I must next consider whether the sentences of imprisonment should be suspended, or served immediately. A term of imprisonment is not to be suspended unless imprisonment for that term would be appropriate in all the circumstances. Put another way, I must be positively satisfied that the option of suspending imprisonment is not appropriate before I could impose a term of immediate imprisonment. In order to decide if the term of imprisonment imposed can be suspended, it is necessary for me to revisit the factors that I have already taken into account in determining that a term of imprisonment is the only appropriate disposition. 28 In the circumstances of this case, and having regard in particular to your prosocial lifestyle, support network and prospects for rehabilitation in the community, I am satisfied the appropriate sentencing disposition for the offence of careless driving is a term of suspended imprisonment, that term being 6 months and 14 days. As I have said, the term has been reduced (from 8 months) by a period of 6 weeks to reflect the period you have already served, it being appropriate to give recognition to that time in custody. The term of imprisonment will be suspended for a period of 12 months, commencing on 15 May 2026. It is appropriate to backdate the period of suspension, in my view. 29 It follows from this that I also consider the term of imprisonment for the offence of driving whilst disqualified should be suspended, and be suspended for the same period. I have given close attention to this issue, Mr Soma. I recognise, as the State has emphasised, that you have a considerable history of driving whilst disqualified and in direct disobedience of court orders. Your conduct in this regard has been blatant. 30 The effect of this period of suspension, Mr Soma, is that if during the 12 month period commencing on 15 May you commit an offence, in this State or elsewhere, for which the statutory penalty is or includes -- 37 of 39 -- [2026] WASC 256 LUNDBERG J Page 38 imprisonment, the court which sentences you may order you to serve the periods of imprisonment which I have imposed for the two offences in question. It means that in the next 12 months, the penalty that I have imposed today will hang over your head and provide a powerful incentive, I hope, for you to refrain from any unlawful conduct which brings you back into contact with the justice system. The confronting experience you have had in prison, Mr Soma, provides further incentive to avoid any criminal conduct. 31 I will also order, as I am required to do, for the offence of careless driving that you be disqualified from holding or obtaining a driver's licence for a period of 3 months. That is the minimum period. That disqualification will take effect from today. It will be concurrent with the disqualification imposed for the other offences. 32 Accordingly, Mr Soma, you will be sentenced as follows. (1) In respect of the offence of careless driving, contrary to s 59BA(1) of the Road Traffic Act (JO 2347/2026), I will impose a sentence of imprisonment of 6 months and 14 days, which will be suspended for a period of 12 months from 15 May 2026. This is the head sentence. I will also order that you be disqualified from holding or obtaining a driver's licence for 3 months concurrently with the other periods of disqualification, with effect from today. (2) In respect of the offence of driving whilst not authorised, contrary to s 49(1)(a) and (3)(c) of the Road Traffic Act (JO 2346/2026), I will order that your sentence of 3 months imprisonment, which was imposed concurrently, be varied such that it be suspended for a period of 12 months from 15 May 2026. The order of disqualification made by the Magistrate remains in effect and has not been varied by me. (3) As to the offence of driving with a prescribed illicit drug in your oral fluid, contrary to s 64AC(1) of the Road Traffic Act (JO 3250/2026), the fine of $1,500 has not been varied by me and remains in effect. Similarly, the order that you be disqualified from holding or obtaining a driver's licence for 6 months remains in effect and has not been varied by me. 33 The total effective sentence is 6 months and 14 days, albeit that is a suspended term. -- 38 of 39 -- [2026] WASC 256 LUNDBERG J Page 39 I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia. LM Associate to the Honourable Justice Lundberg 25 JUNE 2026 -- 39 of 39 --