Criminal law and procedure - Appeal against sentence - Traffic offences - Driving under the influence of alcohol - Sentence manifestly excessive - Totality principle - Plea of guilty - Sentencing Legislation Amendment and Repeal Act 2003 (WA) - Appellant re-sentenced

Respondents : State Solicitor for Western Australia

1 JOHNSON J: The appellant appeals against the total sentence imposed upon him in the Esperance Magistrates Court on 7 August 2007 for a series of offences, the majority of which were breaches of the Road Traffic Act 1974 (WA) (RTA). He also appeals against the specific sentence for an offence of driving under the influence of alcohol committed on 23 June 2007.

1. The learned magistrate erred by imposing a sentence that was manifestly excessive particularly having regard to:
   1. The standards of sentencing for these offences;
   2. Totality;
   3. The plea of guilty;
   4. The applicant's personal circumstances.
2. In sentencing on charge ES 828 of 2007, driving under the influence, the learned magistrate erred by either failing to reduce the sentence by one third in accordance with the transitional provisions or failing to give a discount on the plea of guilty as the resulting sentence of 12 months imprisonment was the maximum that could be imposed summarily.

3 The following table sets out the offences, the prosecution notice numbers, the dates on which the offences were committed and the sentences imposed. Periods of licence disqualification are not included in the table as they are not relevant to the appeal.

RTA s 49(1) and (2)(a)(iii)

RTA s 63(1)

RTA s 63(1)

RTA s 49(1) and (2)(a)(iii)

4 The total sentence imposed on the appellant was 27 months.

5 It is apparent from the table that the appellant committed two offences on four separate occasions. On 11 April 2007 the appellant pleaded guilty to the charges forming the first three groups of offences: ES 284, ES 295 and ES 346. A 12 months intensive supervision order (ISO) was imposed for each of the six charges. The appellant appeared before the magistrate on 7 August 2007 and pleaded guilty to the last two offences which were committed on 23 June 2007. The magistrate cancelled the ISOs and re-sentenced the appellant for the first three groups of offences as well as sentencing him for the last two offences to a total of 27 months imprisonment for all eight offences.

6 The driving under suspension convictions were the appellant's third, fourth and fifth offences of this type. The convictions for driving under the influence were the appellant's second, third and fourth convictions. The appellant also had a prior conviction for an 'excess 0.08%' offence. Whilst that fact would not increase the penalty range available it would be relevant to where, within the available range, the appropriate sentence would lie.

7 The appellant had been convicted on four prior occasions for unlawful damage and had two prior convictions for the offence of possession of a prohibited weapon. The particular weapon is not identified in the appellant's criminal record.

8 I will deal with this ground first in order to determine whether the outcome affects the total sentence imposed. I note that the ground has been conceded by the respondent.

9 The offence appealed against is the offence of driving under the influence (ES 828/07) which was committed on 23 June 2007 and was the appellant's fourth offence of this type. The prescribed custodial penalty for a third or subsequent offence of driving under the influence is imprisonment for 18 months: RTA s 63(2)(c). The sentence imposed by the magistrate was 12 months imprisonment. When the one-third reduction required by the Sentencing Legislation Amendment and Repeal Act 2003 (WA), sch 1, cl 2(1) ('the transitional provisions') is added back to the sentence imposed, the sentence considered appropriate by the magistrate was 18 months; that is, the maximum available penalty for the offence.

10 As the appellant pleaded guilty to the charge, he was entitled to a discount for facilitating the course of justice unless the circumstances of his offending behaviour were so serious that nothing less than the maximum sentence could be justified: Moody v French [2008] WASCA 57 [35], [38] of the decision of the majority; McDonald v White [2007] WASCA 213 [28]; Cameron v The Queen (2002) 209 CLR 339. Notwithstanding that the offence was the appellant's fourth offence of this type and the blood alcohol reading was 0.275%, the highest level of the three offences of this type before the court, there were no other aggravating factors and the period of driving was extremely short. In my view, the circumstances were not so serious that only the maximum sentence could be justified.

11 As a consequence of the fact that no deduction, however small, was made from the sentence, other than on account of the transitional provisions, it is apparent that the magistrate failed to allow the appellant any reduction for his plea of guilty. In doing so the magistrate fell into error.

13 The appellant does not appeal against the magistrate's decision to imprison him. However, he contended that the total sentence was manifestly excessive. In support of that proposition, counsel for the appellant relied on a number of authorities in relation to the total term of imprisonment appropriate for recidivist offenders who have been sentenced on the same occasion for a number of traffic offences committed over a period of time.

14 The appellant relied on the decision of McKechnie J in Rossiter v Francisty [2005] WASC 270 which involved an appeal against a sentence of 14 months for the appellant's seventh, eighth, ninth and tenth offences of driving under suspension which was reduced on appeal to 8 months. In doing so McKechnie J stated:

By reference to...the range of sentences customarily imposed, it is rare for a sentence of 14 months to be imposed on a person, even a serial offender like the appellant and it is especially rare for a sentence to be imposed without parole eligibility [8].

15 Another case relied on was McDonald v White [2007] WASCA 213 where the offender was convicted of an offence of unlawful damage to property, driving while her licence was suspended, driving with a blood alcohol level in excess of 0.08%, reckless driving and failing to stop when called upon by police officers to do so. She made an early plea of guilty to each of the offences charged. She had five prior convictions for driving with a blood alcohol content in excess of 0.08%. She had been convicted on nine previous occasions of driving while her driver's licence was suspended or cancelled. The appellant had a conviction for manslaughter and convictions for assault, disorderly conduct and burglary. Surprisingly, she had never previously been sentenced to a term of immediate imprisonment. After a successful appeal, the Full Court sentenced the appellant to an aggregate term of 10 months imprisonment. That was made up by a term of 5 months imprisonment in respect of the offence of driving under suspension, a further term of 5 months imprisonment, to be served cumulatively, in respect of the offence of reckless driving, and a term of 3 months imprisonment in respect of the offence of unlawful damage to property, to be served concurrently with the other sentences. Fines had been imposed in respect of the remaining offences: McDonald v White [41].

16 The final case relied on by the appellant was the decision of the Full Court in Moody v French where the appellant pleaded guilty to four driving offences. One offence of driving under suspension and one offence of driving with a blood alcohol content in excess of the statutory limit (excess 0.08% offence) were committed on one occasion. Two more offences were committed approximately a month later. One offence was driving under suspension. The other offence was driving under the influence. All four offences were committed whilst the appellant was subject to a suspended sentence of imprisonment for 9 months.

17 At first instance, the appellant was sentenced to 21 months imprisonment which was made up by accumulating the sentence of 12 months imprisonment for the charge of driving under the influence on the 9-month sentence for one of the charges of driving under suspension. The other terms were ordered to be served concurrently.

18 The appellant had five previous convictions for driving without a licence. She had two prior convictions for excess 0.08% offences and one prior conviction for driving with a blood alcohol level in excess of 0.05%. The appellant had three prior convictions for driving under the influence. At the time of sentence the appellant had a significant criminal record but had not previously been subjected to a term of immediate imprisonment of longer than four months. She had last offended some 3 1/2 years previously: Moody v French [65].

19 The Full Court decided that, taking into account all relevant factors, and particularly the appellant's poor criminal record, the appropriate sentence to be imposed in respect of the offence of driving under the influence was one of 10 months imprisonment. The Full Court would have left the other sentences imposed by the magistrate undisturbed. However, for totality reasons, the court ordered that the sentences be served concurrently, save for that in respect of the later offence of driving under suspension. The court further ordered that the term of 9 months imprisonment be served partly concurrently with the other terms imposed and should be taken to have begun after the appellant had served three months of the terms imposed in respect of the other offences. The result was a total term of imprisonment required to be served by the appellant of 12 months imprisonment.

20 In Logan v Kuser [2008] WASC 65 I made the comment that, on any interpretation, these last two cases are serious examples of offences of the relevant type committed in circumstances where there is a clear need for personal deterrence in view of the number of prior convictions. I should also add that there is a clear need for general deterrence because of the prevalence of offences of this type and the tragic consequences which result from time to time. Nevertheless, the Full Court has clearly indicated that, irrespective of the fact of previous convictions for the same offences and of the offender being subject at the time of offending to a non custodial order in relation to previous offences of the same type, total sentences for a number of traffic offences committed over a period of time and to which an offender pleads guilty should be approximately 10 to 12 months. It should be noted that in McDonald v White, one of the sentences included in the total sentence related to an offence of unlawful damage. No statement of principle was made in relation to the impact on the appropriate sentencing range of offences other than traffic offences.

21 In each case, the decision to lower the total sentence imposed resulted from the application of the totality principle. In Karolides v The State of Western Australia [2006] WASCA 240 McLure JA observed that there are two limbs to the totality principle. The first is that the total effective sentence must bear a proper relationship to the overall criminality involved in all the offences, viewed in their entirety and having regard to the circumstances of the case, including those referable to the offender personally. The second limb of the totality principle is that the court should not impose a 'crushing' sentence. The word crushing in this context connotes the destruction of any reasonable expectation of a useful life after release. [5] - [6]. It is the first limb of the principle which is of particular application in the circumstances of these offences and on which the Full Court relied in McDonald v White and in Moody v French.

22 On behalf of the appellant it is said that, although each case is different, an analysis of the above cases when compared to the circumstances of the appellant is such as to make the sentence of 27 months manifestly excessive. The respondent accepts that the sentence was manifestly excessive having regard to the totality principle. No submission was made by either counsel with respect to the propriety of the sentences for the offences of unlawful damage and possession of a weapon other than insofar as they form part of the total sentence.

23 Putting to one side for the moment the sentences for the offences of unlawful damage and possession of a knife, the total sentence imposed for the traffic offences was 21 months imprisonment. It is apparent from the decisions of the Full Court referred to above, and by which I am bound, that that component of the total sentence which can be attributed to the traffic offences was in excess of a sentence which properly reflected the overall criminality of the offending. There was simply no circumstance of the offences or any particular circumstance of the appellant which would justify a sentence so far in excess of the sentences imposed in those authorities. Further, in my opinion, the addition of that component of the overall criminality which related to the unlawful damage and possession of a knife, does not justify the sentence imposed.

24 Consequently, this ground of appeal is also made out and the appeal will be allowed. It remains then for me to determine an appropriate sentence for the offences before the court.

25 The first group of offences occurred on 26 January, 2007. The appellant was driving along a street in Esperance in the early hours of the morning when he was stopped, breath-tested and found to be driving with a blood alcohol level 0.245%. At the time the appellant's licence was subject to a court imposed disqualification.

26 On 3 February 2007 in the evening the appellant was driving when he was observed by the police to be driving at speed and half on the verge. A subsequent breath test gave a reading of 0.211% at the time of driving. The appellant was also driving whilst subject to a court imposed suspension of his licence.

27 The third group of offences were not traffic offences. They occurred on the afternoon of 18 February 2007 at a house where the appellant often resides with his girlfriend, someone with whom the appellant has an 'on and off' relationship. The appellant had met up with a group of people and had been sniffing intoxicating substances. When he returned home his girlfriend told him to leave as he had been sniffing substances. The appellant became aggressive and smashed two windows of the house by punching the glass. He then picked up a kitchen knife and went out the front of the house where his girlfriend and several children were standing. The appellant, holding the knife in his hand, said that he was going to stab people and also used offensive language to his girlfriend. A relative grabbed the knife and the appellant walked off.

28 The final group of offences were further traffic offences which occurred on the evening of 23 June 2007. The appellant had attended a hotel to listen to a band. According to the appellant, following the entertainment he went to move his vehicle from one side of the road to the other when he was observed by a police officer. The appellant's licence had previously been disqualified and the appellant's blood alcohol reading was 0.275%.

29 It can be seen that the appellant committed the traffic offences on three separate occasions. Further, at the time he committed the last set of traffic offences, the appellant was subject to an ISO for the first two groups of traffic offences as well as for the offences relating to the incident at his girlfriend's property. This last group of traffic offences were the appellants conviction for driving under suspension and his fourth for driving under the influence of alcohol.

30 As to the appellant's criminal history, I have already noted prior convictions for traffic offences, damage and possession of weapon offences. With the exception of a burglary offence, the balance of the appellant's criminal record consists exclusively of offences of violence such as disorderly conduct, assaulting a public officer, threatening words and behaviour, resisting arrest and assault occasioning bodily harm.

31 The appellant has in the past received fines, ISOs, a community work order and a community based order. In 2006 he was given a short term of imprisonment which was suspended for eight months. Despite continuing to offend, the penalties imposed thereafter were fines and a further ISO. Of those non-custodial penalties, the appellant breached the community work order, the community based order and the first ISO. The appellant committed an offence during the period of another ISO but no breach action was taken. The last ISO was breached by the offences before this court, committed a mere six weeks after being placed on the order. It is relevant to the penalty to be imposed that the appellant has never previously been required to immediately serve a term of imprisonment, although a perusal of his criminal record reveals that he has been fortunate in that regard.

32 A pre-sentence report (PSR) obtained in relation to the last group of offences stated that the appellant is a 25-year-old unemployed father of four young children with an alcohol problem which leads to his offending. Unfortunately, the excessive drinking also brings out the appellant's violent tendencies, something that is also reflected in his record of prior convictions. The author of the report notes that for the past eight years the appellant has received professional intervention to address his substance abuse and offending behaviour. It is obvious that these interventions have had no effect on the appellant's behaviour. The appellant owes $6,105.50 in outstanding fines. It seems that not only have the fines imposed had no impact on the appellant's conduct, he has not even paid them.

33 Before determining the appropriate sentence, there is a submission made on behalf of the appellant which requires consideration. Counsel for the appellant submits that, as the first six offences were not considered to warrant a term of imprisonment at the time they were initially before the court, they should have minimal, if any, impact on the total sentence. The respondent's response was to indicate that the basis of the decision to impose a non-custodial order was based on the information contained in the earlier PSR concerning the appellant's prospects of rehabilitation. However, it was said that the appellant's prospects of rehabilitation were properly seen in a different light as a result of the fact that the appellant re-offended within six weeks of the order being made. I accept the view expressed by the respondent.

34 In my view, based on the information then available, the magistrate considered that the prospects of rehabilitation outweighed the other factors such as personal and general deterrence which would have otherwise justified a term of imprisonment. Although, based on the appellant's record, such a conclusion was generous to the appellant, the approach was in accordance with principle. However, it does not equate to a conclusion that the offences were not of a nature to warrant terms of imprisonment. Once the appellant's prospects of rehabilitation had substantially diminished, or been seen in the correct light as a result of the rapidity of re-offending, a sentence of imprisonment appropriate to offences of the relevant type should be imposed.

35 To summarise, the appellant is a repeat offender, who drove with very high blood alcohol levels and whilst subject to an intensive supervision order for the same type of offences. The appellant has previously had the benefit of treatment and of various non-custodial sentences. Although he had previously been sentenced to a term of imprisonment that sentence was suspended. It was also a short sentence of 6 months and 1 day. There are a number of factors which, in my view, make this a more serious course of conduct than those which applied in the authorities to which I have referred, including the repeated high blood alcohol readings and, in particular, the fact that there were three separate occasions of committing the traffic offences.

36 Added to this is the third group of offences which, although fuelled by substance abuse, were of a different type. I view the act of wielding a knife and putting people, particularly children, in fear, to be the more serious of the two offences.

37 In the circumstances, I would substitute the following sentences for those imposed by the magistrate dealing with offences in the order they appear in Table 1:

1. ES 295/07 - 6 months
2. ES 296/07 - 6 months cumulative on count 1
3. ES 284/07 - 7 months concurrent
4. ES 285/07 - 7 months concurrent
5. ES 346/07 - 3 months concurrent

1. ES 828/07 - 8 months concurrent
2. ES 829/07 - 8 months concurrent

38 The total sentence imposed is therefore 15 months. The sentences imposed have been adjusted so as to more easily result in a sentence which reflects the total criminality of the appellant's course of offending.

39 I would allow the appeal and substitute these sentences for those imposed by the magistrate. As did the magistrate, I will order that the appellant be eligible for parole.