Criminal law - appeal against sentence - Driving whilst disentitled - Driving under the influence of alcohol - Whether sentences of imprisonment excessive - Whether sentence of imprisonment ought to have been suspended - Turns on own facts

Road Traffic Act 1974 (WA), s 49, s 63, s 105

Sentence Administration Act 2003 (WA)

Sentencing Act 1995 (WA), sch 1, cl 3A(3)

Sentencing Legislation (Transitional Provisions) Amendment Act 2008 (WA)

Anderson v Heath [2005] WASC 253

Chan v The Queen (1989) 38 A Crim R 337

Findlay v The State of Western Australia [2007] WASC 61

Griekspoor v Scott [2000] WASCA 419; (2000) 23 WAR 530

House v The Queen [1936] HCA 40; (1936) 55 CLR 499

Humble v State Solicitor for Western Australia [2009] WASC 99

Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665

Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357

Mason v Morrison [2004] WASCA 181

McDonald v White [2007] WASCA 213

Moody v French [2008] WASCA 67

O'Brien v Ritchie (Unreported, WASC, Library No 990123, 17 March 1999)

R v Morgan (1993) 70 A Crim R 368

Rossiter v Francisty [2005] WASC 270

The State of Western Australia v BLM [2009] WASCA 88

The State of Western Australia v Gibbs [2009] WASCA 7

1 JENKINS J: The appellant appeals from the sentences imposed on him in the Magistrate's Court at Midland on 20 February 2009 for the offences of driving whilst disentitled from holding or obtaining a driver's licence and driving under the influence of alcohol (DUI). The magistrate sentenced the appellant to 12 months' imprisonment for each offence and ordered that the sentences be served concurrently with one another. The appellant was made eligible for parole.

2 On 16 April 2009, McKechnie J extended time to appeal and granted the appellant leave to appeal the sentences on two grounds. The grounds of appeal state:

1. The learned Magistrate erred by imposing a sentence that was manifestly excessive, particularly having regard to:-

(i) The appellants plea of guilty.

(ii) The appellants personal circumstances.

(iii) The appellants record which disclosed the last driving conviction was on the 2nd of February 2002.

1. The learned Magistrate erred by failing to consider or give reasons as to why a suspended sentence was not appropriate.

3 On 13 January 2009 the appellant pleaded guilty to charges which alleged that;

1. on 21 December 2008 at Middle Swan he drove a motor vehicle on Middle Swan Road whilst under the influence of alcohol to such an extent as to be incapable of having proper control of such vehicle contrary to the Road Traffic Act 1974 (WA) (the Act) s 63(1); and
2. 21 December 2008 at Middle Swan he drove a motor vehicle on Middle Swan Road whilst not being a person authorised by pt IVA of the Act and whilst legally disentitled to hold such authority contrary to the Act s 49(1)(a) and s 49(3)(c).

4 Throughout this judgment I refer to the appellant's conviction for an offence against s 49(1)(a) and s 49(3)(c) as driving whilst disentitled. In other judgments this offence is often referred to as driving under suspension.

5 The charges were adjourned to 17 February 2009 for a written pre-sentence report (PSR). The transcript of the commencement of the proceedings on that day are not before me. However, the parties accept that the prosecutor read to the court the facts in terms which were consistent with the prosecution's written statement of material facts, which states:

At 10.56pm on, Sunday 21st of December 2008, the accused drove a Motor Vehicle, registered number 9DZ895, on a road, namely Middle Swan Road.

The accused was stopped for (nil tail lights), and it was ascertained that the accused had consumed alcohol.

The accused was conveyed to Midland Police Station, where he underwent a Breath Analysis Test which gave a reading of 0.312g of alcohol per 210 litres of breath, calculated to have been 0.303g of alcohol per 100 ml of blood, at the time of the occurrence.

...

Further inquiries revealed that the accused was not authorised to drive a motor vehicle as he was legally disentitled to hold a driver's licence.

The accused's driver's licence number 3434524 was cancelled for life on the 4th of February 2002 (DUI 2nd or more offence) by the Perth magistrates court.

6 The appellant's matter was then stood down until later in the day, apparently so that the Magistrate could locate and read the PSR.

7 The PSR said that the appellant had explained to the author that he had lent his car to his niece so that she could drive from Moora to Perth. The appellant elected to go with her as he planned to leave the car with his nephew for minor repairs. The appellant told the author of the PSR that he had 'a few beers' along the way as he had no intention of driving the car. For some unexplained reason the appellant's niece left the appellant near Midland on the side of road and the appellant called his nephew to meet him there. In the meantime the appellant said that he decided to move his car some 200 m into a parking bay. He admitted that whilst he was moving it, the police noticed that he had no tail lights and stopped him to investigate.

8 The appellant suggested to the author of the PSR that his blood thinning medication could have increased his blood alcohol content. This submission was repeated to the magistrate. As there is no evidence that this could be the case and commonsense does not lead to such an inference, I need say no more about that possibility.

9 The appellant told the author of the PSR that he did not normally drink to excess and the appellant's partner confirmed this. He also told the author that he had since disposed of the car.

10 The PSR noted that the appellant has had only one period of community supervision. That occurred in 2002. The appellant was required to attend alcohol abuse counselling. The program was successfully completed.

11 The PSR contained the following personal information about the appellant.

12 The appellant is 50 years of age. He has five children from an earlier relationship. None of his children live with him but he has telephone contact with them. He has been with his current partner for seven years and, although he has one conviction in 2004 for assaulting her, they both described the relationship as sound. The appellant is of particular assistance to his partner due to the fact that she has a heart condition and has been fitted with a defibrillator.

13 The appellant has had various types of work. Most recently he has been employed in seasonal farming work. He believes that he can obtain that employment or work in the mining industry once released from prison. Although he told the author of the PSR that he had confidence that he could pay a fine, the author noted that he had $413.50 in outstanding fines and there was not a 'time to pay' arrangement in place.

14 The appellant is a member of the stolen generation. His childhood was marked by separation from his family and other deprivations. As an adult he has assisted with the redevelopment of Mugumba as an arts and crafts centre and he is an artist.

15 The author of the PSR said that the appellant appeared to have learned a salient lesson from his incarceration in 2002, in respect to his drinking habits. She also opined that programmatic intervention was not warranted due to this. The appellant was willing to undertake community work.

16 When the matter was recalled, the magistrate indicated to counsel that she had read the PSR. The appellant's counsel then presented a plea in mitigation. In respect to the facts, counsel said that the appellant had dropped his niece off at 'the bus station' (later clarified as a bus stop) and then had driven his car some 200 m whilst he waited for his nephew. I digress to note that this seems to be odd behaviour given that it was close to 11 pm in the evening. She also confirmed other personal details which appeared in the PSR. She said that the appellant had attended a counselling session at the Aboriginal Alcohol and Drug Service on 14 January 2009.

17 The magistrate advised that she was not thinking of fining the appellant and his counsel then suggested that he would be a suitable candidate for a suspended sentence.

18 An exchange took place between counsel and the magistrate concerning the appellant's prior criminal record (PCR). In the last 20 years the appellant has had three prior convictions for driving whilst disentitled. These were incurred on 27 August 1991, 7 March 2001 and 4 February 2002. For the two most recent offences he had received periods of imprisonment. In 2001 he received a sentence of 7 months' imprisonment and in 2002 he received 9 months' imprisonment. He also had three prior convictions in the same period for DUI. These were recorded on 5 January 1990, 27 August 1991 and 4 February 2002. In 2002, the appellant received 3 months imprisonment for the DUI offence. It is not clear whether this sentence was served concurrently or cumulatively on the sentence for driving whilst disentitled. Further, in March 2001 the appellant was convicted of driving with a blood alcohol content exceeding .08%. He was also convicted in January 1990 for driving contrary to the terms of an extraordinary driver's licence. In the same period he has had six convictions for non-traffic offences. Two of these were for minor assaults. He has not been convicted of any offence since March 2005.

19 These were the only offences which could be taken into account 'for the purposes of determining the penalty or penalties to be imposed for the present offences': the Act s 49(6), s 63(3) and s 105.

20 However, the convictions I have mentioned were not the appellant's only convictions for traffic offences and, despite the other convictions being recorded over 20 years ago, the earlier offences can not be ignored when evaluating the appellant's general antecedents and the credit he ought or ought not to have received in the sentencing process.

21 For example, it is pertinent to note that in 1990 the appellant was first disentitled from holding a driver's licence for life. At that time he already had an appalling record of traffic offences, including four convictions as an adult for alcohol related driving offences and seven convictions for driving whilst disentitled. These were in addition to other convictions the appellant had incurred for assault and dishonesty offences. The appellant could not receive credit in this sentencing process for good character as a young man.

22 The appellant's counsel submitted that the appellant's partner relied on him. The magistrate observed that this was not a case where there was no one else to look after her. The appellant's counsel did not dispute that. The magistrate also correctly observed that this was not a case where the appellant was needed to drive his partner places because he did not have, and was never going to have, a licence which would enable him to do so.

23 The prosecutor submitted that the only appropriate sentence was a term of imprisonment and that the only question was whether that term ought to be suspended. The prosecutor submitted that it was not appropriate to suspend the term given that the appellant had been driving under the influence of alcohol whilst under a life suspension and, having consumed so much alcohol, he had clearly been a danger to the public.

24 The magistrate then announced that she was going to remand the appellant in custody until later in the week so she could consider the appropriate sentence for the appellant. Her Honour said that she considered that imprisonment was appropriate and she needed 'to decide whether to suspend that or not'. Her Honour then said:

If ALS have any other matters to put before me, I would like that, please, because otherwise there is really not enough before me to suspend the imprisonment order. You need more than the fact that he has attended one session at the Aboriginal Alcohol Services, that he may have a job lined up. There is just not enough when someone is under life disqualification and with a blood alcohol content of .303. That's just so dangerous (ts 10 - 11).

25 The appellant's counsel then referred to the gap in the appellant traffic offending since 2002. Her honour continued:

That is one factor in his favour and the plea of guilty, but there is not much else and you are under multiple life disqualification and the public, whoever they are, the voting people of Western Australia, including the children who don't vote, have a right to feel that they are going to be protected from people who drink and drive (ts 11).

26 The appellant's counsel then referred to the fact that the appellant said that he had only driven a short distance. Her Honour continued:

I don't know. You see, that is interesting, because I don't know where he dropped her off at the bus stop. I don't know how far away and I don't know when. That's why I needed to know how the police stopped him (ts 11).

27 The matter was then adjourned to 20 February 2009 for sentencing.

28 On that date both parties took up the factual issues with the magistrate. First, a different counsel on behalf of the appellant submitted that the appellant did not intend to take the car into Midland because its tail lights were not working. This was hardly mitigating as it only revealed an intention to avoid being apprehended by police for this defect. If the intention had not been to put anyone in danger then the trip would not have continued at all after dark.

His niece and her boyfriend-partner hopped out of the car. I think it was close to West Swan Road and Roe Highway. There was a bus stop there. He then drove the car from that bus stop a distance of about 300 metres, he estimates, to a park near the bridge going over the river there. It was his intention to stay and have a rest in the car. Then he was going to walk into Midland and catch up with a nephew (ts 2)

30 This was the first time it had been mentioned that the niece's boyfriend was with the appellant and the first time it had been mentioned that the appellant planned to leave his car and walk to see his nephew.

31 The prosecutor then said that his advice from the arresting officers was that the officers had followed the appellant's car for about 500 m before it had pulled into a reserve. One of the officers had advised that the appellant was in company with two intoxicated females and there was a second vehicle in the area which was being driven by the appellant's nephew who had also been charged with DUI and driving whilst under suspension. Further, when asked when he had drunk his last drink the appellant had advised the arresting officers that it was a couple of hours earlier, in Midland. Neither officer had reported hearing anything about a niece or a bus stop.

32 The appellant's counsel was asked if he had anything else he wished to say.

33 Counsel advised that the appellant's prior criminal record was admitted and that he had nothing further to add to what counsel on the previous occasion had said.

34 The magistrate then proceeded to sentence the appellant. She referred to the appellant's record in a manner which did not contravene the Act s 105. She then seems to have referred to the facts but unfortunately the recording of her Honour's comments at that point is indistinct and so they have not been transcribed. Her Honour continued by saying that she took into account the gap in the appellant's offending. She then referred to his prior convictions for both these offences and said that she could not 'consider any other penalty but a period of imprisonment'. Her Honour continued:

The court must set a deterrent penalty to other like members in the community, but also taking into account your early plea of guilty - you pleaded guilty - and the circumstances of the driving that there was no accident or any other (indistinct) except the fact that you are under your third life disqualification, and you are certainly disqualified.

The reading was exceptionally high, .303, that's a very high reading, but you have pleaded guilty at the first opportunity. There is a period of 12 months' imprisonment backdated to 17 February 2009 for when you first went into custody; to be made eligible for parole, and life disqualification imposed again, and for driving under suspension, there is also 12 months' imprisonment but concurrent, so they run together. You are made eligible for parole and there is three years disqualification of your licence cumulative and no order as to cost.

35 The maximum penalty for the subsequent offence of driving a motor vehicle whilst disentitled was 18 months' imprisonment or a fine of $4,000. The maximum penalty for the appellant's fourth offence of DUI was 18 months' imprisonment or $5,000 fine.

36 I now turn to the law applicable to this appeal. The imposition of a sentence is an exercise of judicial discretion. The principles upon which an appellate court must deal with an appeal against sentence were restated by the High Court in Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665, 671. It is not sufficient that an appellate court may take a different approach or impose a different sentence. It must be demonstrated that the sentencing judge erred in the exercise of his or her discretion: House v The Queen [1936] HCA 40; (1936) 55 CLR 499, 504 - 505.

37 In Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 Gleeson CJ and Gummow, Hayne and Callinan JJ said:

As with other discretionary judgments, the inquiry on an appeal against sentence is identified in the well-known passage in the joint reasons of Dixon, Evatt and McTiernan JJ in House v The King, itself an appeal against sentence. Thus is specific error shown? (Has there been some error of principle? Has the sentencer allowed extraneous or irrelevant matters to guide or affect the decision? Have the facts been mistaken? Has the sentencer not taken some material consideration into account?) Or if specific error is not shown, is the result embodied in the order unreasonable or plainly unjust? It is this last kind of error that is usually described, in an offender's appeal, as 'manifest excess', or in a prosecution appeal, as 'manifest inadequacy' [25].

And Judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies [27].

39 In The State of Western Australia v Gibbs [2009] WASCA 7 [54] - [55] Steytler P, McClure J agreeing, said:

... it is necessary to bear in mind that an appellate court may not substitute its own opinion for that of the sentencing judge merely because it would have exercised its discretion in a different way. In Dinsdale [58], Kirby J said:

Because the imposition of a sentence involves the exercise of judgment and evaluation upon which minds can differ, it bears close similarities to the making of a discretionary decision. Like such a decision, if properly imposed, a sentence will not be disturbed on appeal merely because the appellate court would have reached a different result had the responsibility of sentencing belonged to it ... As in the case of appellate review of a discretionary decision, a brake is imposed upon undue appellate disturbance of primary decisions (and unwarranted appeals seeking that relief) by the necessity to identify an error that justifies and authorises appellate intervention.

... it is very difficult to make out a ground that contends that a sentencing judge placed undue weight on, or failed adequately to take account of, individual considerations. Sentencing is a discretionary exercise and a failure of that kind will not give rise to an express appealable error unless it was so significant as to lead to the conclusion that the sentencing judge failed to exercise the discretion entrusted to the court.

41 In Chan v The Queen (1989) 38 A Crim R 337, 342 Malcolm CJ said:

To determine whether a sentence is excessive, it is necessary to view it in the perspective of the maximum sentence prescribed by law for the crime, the standards of sentencing customarily observed with respect to the crime, the place which the criminal conduct occupies on a scale of seriousness of crimes of that type and the personal circumstances of the offender.

42 Despite the subsequent enactment of the Sentencing Act 1995 (WA) (the Sentencing Act) the principles enunciated by Malcolm CJ still apply in respect to appeals against sentence.

43 When considering what has been described as the standards of sentencing customarily observed with respect to the crime by examining other cases, it is apposite to remember what Hunt CJ at CL said in the New South Wales Supreme Court (with the concurrence of other members of that court) in R v Morgan (1993) 70 A Crim R 368, 371:

It is quite wrong to compare the sentence under challenge directly with that imposed upon another offender (who is not a co-offender) simply because the two offenders may have similar characteristics and may have committed similar crimes. What must be looked at is whether the challenged sentence is within the range appropriate to the objective gravity of the particular offence and to the subjective circumstances of the particular offender, and not whether it is more severe or more lenient than some other sentence (other than that of a co-offender) which merely forms part of that range.

44 In light of the characterisation of an appeal against sentence in Markarian, I will first deal with ground 2 of the appeal which asserts a specific error in the magistrate's sentencing remarks. I will then deal with ground 1 which is really a default ground of appeal, if a specific error by the magistrate has not been made.

45 Ground 2 asserts that alternative errors were made by the magistrate. The first is that the magistrate erred by failing to consider why a suspended sentence was not appropriate. This error has not been made out. The magistrate clearly considered this issue on the first occasion the matter was before her on 17 February 2009. Her Honour told the parties that she had decided that imprisonment was appropriate and that she needed 'to decide whether to suspend that or not'. There followed an exchange between her Honour and the appellant's counsel as to those matters in mitigation which may justify the suspension of a term of imprisonment. The magistrate commented on those matters and then adjourned the charges for three days, by necessary inference, to consider whether to suspend any sentence of imprisonment. Although her Honour did not again mention suspension of imprisonment on the return date, her comments on 17 February leave me in no doubt that the short reasons that her Honour gave for the penalty she then imposed related to her consideration not only to imprison the appellant but also her decision not to suspend the periods of imprisonment.

46 In the alternative, the appellant alleges that the magistrate erred by failing to give reasons as to why a suspended sentence was not appropriate. As I have said, the reasons which the magistrate gave on 20 February, in my view, when read with her Honour's comments on 17 February, can only relate to both the decision to imprison the appellant and the decision to do so immediately. For these reasons I dismiss ground 2 of the appeal.

47 In order to determine whether the sentence was excessive, I turn to consider the criteria referred to in Chan. First, as the maximum penalty prescribed by law is 18 months for each offence and the appellant's sentences had to be reduced in order to reflect credit for his pleas of guilty, sentences of 12 months' imprisonment on each charge were towards the upper limit of the range of sentences he could have received, without any credit being given to him for his personal circumstances and the factual circumstances.

48 The respondent submitted that the offences were very serious examples of their type and thus the sentences were appropriate. I do not agree that the offences were very serious examples of their type. As was conceded by both parties at the hearing of the appeal the offence of driving under the influence was the most serious because of the appellant's very high blood alcohol content. It was also aggravated because the appellant was driving an unroadworthy car without proper illumination, at night. These factors meant that the appellant's offending was a manifest danger to the public. However, without in any way wishing to diminish the seriousness of the offence, there are more serious examples of this offence, such as when there is proof that an offender has driven a long distance and when the driving under the influence has been associated with reckless or dangerous driving.

49 The offence of driving whilst under suspension is usually regarded as a serious offence when it involves driving whilst under a court imposed suspension, as in this case, because the offence involves a deliberate contravention of a court order: Griekspoor v Scott [2000] WASCA 419; (2000) 23 WAR 530 and the cases cited therein.

50 The appellant submitted that his offence was mitigated by the fact that it was committed six years and nine months after his last conviction for the same offence. Thus, the appellant said that he is not someone who regularly ignores court orders. Rather, he usually has regard to them. This submission would have more weight if this was not a case of history repeating itself. The appellant was convicted in 2001 and 2002 of driving under suspension and, on each occasion, of an alcohol related driving offence. Prior to the 2001 offences the appellant's previous convictions for similar offences were 10 years earlier in 1991. Further, there was a period between May 1986 and December 1989 where the appellant did not commit such offences. Thus, whilst long periods of good behaviour are usually highly mitigatory because they indicate that the subject offending is out of character and unlikely to be repeated, in the appellant's case the breaks in offending do not carry as much mitigatory weight. The magistrate still had to impose a personally deterrent penalty on the appellant. This is because he had shown by his prior conduct that his long periods of non-offending were not indicative of resolute rehabilitation and a low probability that he would offend in a like manner in the future.

51 Whilst I do not accept the appellant's submissions in their entirety, I do accept that, as with the offence of DUI, there are more serious examples of the offence of driving under suspension. For example, in many of the cases cited by the parties the offending behaviour has occurred repeatedly over a few years. More serious examples of such offending would also be when there is proof that the offender has driven a long distance and in a reckless or dangerous manner. In this case the appellant's offence of driving whilst disentitled was aggravated by the fact that he was driving whilst under the influence of alcohol. However, for the purposes of sentencing it was important for the magistrate to ensure that the appellant was not sentenced twice for this behaviour.

52 I pause here to mention the issue of the facts on which the appellant was sentenced. I see no error in the magistrate's reasons in this regard and none is alleged. However, both at first instance and on appeal, the parties made reference to facts which have not been proven for the purposes of sentencing. In essence the facts on which the magistrate sentenced the appellant and on which I will determine the appeal are those contained in the prosecutor's statement of facts to the court. The appellant did not dispute those bare facts. In mitigation of sentence he asserted, through his counsel, other facts concerning why he was driving and how far he drove but these were disputed by the prosecution. As they were never proven by admissible evidence the magistrate was not entitled to rely on them. Further, neither the magistrate nor I am obliged to accept facts which are inherently incredible in light of known facts. When I mentioned to the appellant's counsel that I found it difficult to accept that late at night the appellant had dropped his niece off at a bus stop in an outer Perth area to catch a bus, he did not attempt to persuade me to the truth of that version of events or seek to call evidence to prove it.

53 Similarly, the magistrate was not entitled to rely on facts alleged by the prosecution to aggravate sentence if those facts were disputed by the appellant and evidence was not called to prove them.

54 In respect to the standards of sentencing for both offences, there have been a number of cases which have considered standards of sentencing for the driving whilst disentitled or driving under suspension. In Anderson v Heath [2005] WASC 253 [9] Le Miere J said:

Counsel for the respondents usefully referred to authorities in relation to the offence of driving whilst under suspension. The authorities established a range of 2 to 6 months' imprisonment as an appropriate disposition in most cases under the old sentencing regime which would equate to a range of 6 weeks to 4 months under the new sentencing regime.

55 Given the very different factual circumstances in that case, the ultimate penalty imposed in that case is not relevant.

56 In Rossiter v Francisty [2005] WASC 270 McKechnie J also relied on a table prepared by counsel in respect to the same offence. His Honour attached it to his judgment. It is true to say that most cases in it attracted sentences of 2 to 6 months' imprisonment. However, there was a penalty of 9 months' imprisonment in one case prior to the enactment of the transitional provisions, which required a reduction in sentence of one third. Further, the two cases included in the table where the offenders had been sentenced after the transitional provisions had resulted in sentences of 6 months and 9 months respectively. The latter case was Mason v Morrison [2004] WASCA 181.

57 More recently the Court of Appeal considered the standards of sentencing for driving under suspension in McDonald v White [2007] WASCA 213 and Moody v French [2008] WASCA 67. It is pertinent to note that both these cases were decided prior to the repeal of the transitional provisions. Thus, they were considering what sentences were appropriate having regard to the fact that the maximum penalty which could be imposed was 12, not 18, months' imprisonment.

58 McDonald had been sentenced by a magistrate to 9 months' imprisonment for one count of driving under suspension. She was 30 years of age and had 11 prior convictions for driving under suspension. She had never previously received a sentence of imprisonment. On the occasion of her offending she was drunk and was speeding. She received a total of 15 months imprisonment for the subject offence, reckless driving and unlawful damage. She was fined for exceeding .08% breath alcohol content. She appealed against her sentences.

59 In determining her appeal, the Court of Appeal referred to a number of previous cases which had involved this offence. These cases included Mason, Anderson and Rossiter. The Court of Appeal said that the decided cases reflected some inconsistency in the length of term imposed for this offence. To apparently illustrate this inconsistency it referred to three cases. In two of those cases the offenders had received sentences of 8 months' imprisonment and in the other the offender had received a sentence of 9 months' imprisonment (Mason). All cases were decided when the transitional provisions were in effect, as was McDonald. These appear to me to be consistent sentences. There were ultimately inconsistent results in the total sentences imposed on each of the offenders in those cases, in that each offender was sentenced for more than one offence and the sentencing judicial officers had taken different views on the question of totality. That question involves different considerations than the question of determining the appropriate penalty for each offence.

60 Having referred to these cases, the Court of Appeal considered McDonald's personal circumstances and determined that a sentence of 5 months' imprisonment was an appropriate penalty for her offence of driving whilst disentitled. With due respect to the Court of Appeal, it is difficult for me to follow how a sentence of 5 months was consistent with the standard of sentencing set by the three cases it had particularly mentioned, but it may have been taking into account the ranges in Anderson and Rossiter. It said that a term close to the maximum would not be warranted and it took into account that McDonald had not previously been sentenced to imprisonment.

61 Moody had been had been sentenced by a magistrate to 9 months' imprisonment on each of two counts of driving under suspension. The sentences were ordered to be served concurrently with one another. Moody also received a concurrent sentence of 9 months' imprisonment for breach of a suspended sentence of imprisonment for a non-traffic offence. She was subject to this offence when she committed the other offences. Finally, she was sentenced to 12 months' imprisonment for DUI. This sentence was ordered to be served cumulatively on the other sentences. The DUI offence was committed at the same time as the second offence of driving whilst under suspension. Those two offences were committed, in turn, about a month after the first driving whilst suspended offence. That, in turn, had been accompanied by an offence of driving with a blood alcohol content exceeding .08%, for which Moody was fined. Thus, Moody received a total sentence of 21 months' imprisonment. She appealed against the lengths of her sentences.

62 Moody was 41 years of age and had nine prior convictions for driving under suspension between August 1983 and 2006. She also had a number of convictions for driving without a licence. She had never previously received a sentence of imprisonment longer than 4 months. Her last conviction for driving whilst under suspension (court ordered) was some six years earlier. However, her last conviction for driving whilst under suspension (unpaid fines) was some 3 1/2 years earlier.

63 The Court of Appeal determined that the aggregate sentence offended the totality rule and that the individual sentence imposed for driving under the influence was too high. It reduced the sentence for that offence to 10 months' imprisonment. It did not disturb the length of any other sentence. It ordered that all sentences be served concurrently except that it ordered that the term of 9 months' imprisonment for the last driving whilst under suspension be served after the appellant had served three months of each of the remaining sentences, resulting in a total term of 12 months' imprisonment. Thus, the Court of Appeal did not disagree with the appropriateness of sentences of 9 months' imprisonment for the offences of driving whilst under suspension.

64 If the only criterion for detecting error is a comparison of the appellant's sentence for driving whilst disentitled with other sentences for the same offence, the sentence imposed by the magistrate is manifestly excessive, in that it is above the range of sentences that has been imposed in any other case I have been referred to, bar one. This is so even though the appellant's offence was not as serious as some of those cases. The one exception is Findlay v The State of Western Australia [2007] WASC 61. However, that case turned ultimately on whether a sentence of 2 years' imprisonment was excessive for five traffic offences rather than whether an individual sentence of 12 months' imprisonment was so.

65 Somewhat surprisingly, I was not referred to any published judgment which has considered the standard of sentencing for the offence of DUI. I was referred to an insufficient number of cases involving the sentence for DUI for me to determine what the standard range of sentences are for that offence.

66 However, most recently, in Moody, the Court of Appeal reduced a sentence of 12 months' imprisonment for DUI to 10 months' imprisonment. Moody had two prior convictions for driving with a blood alcohol content in excess of .08%, one prior conviction for driving with a blood alcohol content in excess of .05% and three prior convictions for DUI. These latter convictions were dated 1 September 1992, 13 September 1994 and 7 April 2003. Further, when she appeared before the sentencing magistrate, she was also sentenced for a further charge of driving with a blood alcohol content in excess of .08, approximately one month before the DUI offence. The Court of Appeal gave no reason for determining that the 'appropriate sentence to be imposed in respect of the offence of driving under the influence' was one of 10 months' imprisonment, other than to say that it allowed for the operation of the transitional provisions and made some allowance for the appellant's plea of guilty.

67 Next I turn to consider the place which the appellant's criminal conduct occupies on a scale of seriousness of crimes of that type and the personal circumstances of the offender. In these respects the appellant submitted that the magistrate erred by finding that the offence was at the upper end of the range of seriousness for offences of this type and in failing to place sufficient weight on the appellant's personal circumstances and the gap in his offending since 2002.

68 I have already referred to the relative seriousness of the offences and the personal circumstances of the appellant. When all these matters are taken into account and given their proper weight, it is my view that it was an error of the magistrate to sentence the appellant to 12 months' imprisonment on each offence, even allowing for the fact that she ordered the sentences to be served concurrently.

69 Before finally deciding this ground of appeal it is necessary for me to consider the effect of the Sentencing Legislation (Transitional Provisions) Amendment Act 2008 (WA) (Amendment Act). The appellant was sentenced by the magistrate after the Amendment Act came into force. The Amendment Act repealed the transitional provisions and enacted the Sentencing Act sch 1 cl 3A(3) which provides that:

A court sentencing an offender to a fixed term can have regard to the minimum custodial period of the fixed term to be imposed and the minimum custodial periods of fixed terms imposed before the relevant commencement, whether or not cl 2 applied to their imposition.

70 '[T]he minimum custodial period' of a fixed term is the amount of the fixed term required to be served in custody before the offender would be, or was or would have been, eligible or entitled to be released, whether on parole or on being discharged from the sentence. The 'relevant commencement' means the commencement of the Amendment Act. Clause 2 contained the transitional provisions, which the Amendment Act repealed.

71 When this appeal was heard the parties submitted different views as to the effect of the Amendment Act. I am grateful to counsel for the appellant for bringing to my attention in this regard The State of Western Australia v BLM [2009] WASCA 88 which was delivered after the hearing of the appeal and two days prior to the date fixed for the delivery of this judgment.

72 BLM has resolved the question of the proper interpretation of cl 3A(3). In BLM Wheeler and Pullin JA (Owen JA agreeing) said that the effect of the Amendment Act they prefer requires:

... a sentencing judge, where there was an established sentencing range in respect of a particular offence prior to the enactment of the Amendment Act, to have regard to the minimum custodial periods of the sentences established by that range, for the purpose of ensuring that comparable minimum custodial periods are established for those who offend in a comparable way subsequent to the Amendment Act.

73 Their Honours were of the view that the only exception to that requirement was in the case of offending falling within the worst category of offending. Neither party asserts that this is such a case.

74 Although BLM resolves the question of the construction of cl 3A(3), it is difficult to apply their Honours view in that case to these offences. There are differing reasons for this. In the case of the offence of DUI I have not been able to identify a range of penalties for that offence before the commencement of the Amendment Act. In respect to a subsequent offence of driving whilst disentitled, minimum custodial periods of the range of sentences in respect of that offence have changed significantly over the time prior to the enactment of the Amendment Act.

75 It is necessary to go back as far as 1994 as that is the earliest case referred to in the range established by Rossiter. At that time and up until the Sentencing Act came into force on 4 November 1996 an offender sentenced to less than 12 months' imprisonment was required to serve the whole of his or her term before being released.

76 After the Sentencing Act came into force, an offender sentenced to less than 12 months' imprisonment was discharged from that sentence when he or she had served two thirds of the term. As far as I have been able to ascertain, in the short period available to me, there was no opportunity for such an offender to be released before he or she had served two thirds of the sentence. Such an offender was eligible to be released on home detention after serving one month of the term. It is doubtful that Parliament intended this form of eligibility for release to be considered as a minimum custodial period for the purposes of the Amendment Act.

77 When the Sentence Administration Act 2003 (WA) came into force on 31 August 2003 an offender sentenced to a term of less than 12 months' imprisonment was discharged from that sentence at the end of the term. He or she had to be released on parole after serving half of their term. That continues to be the law today.

78 Thus, when I have regard to the minimum custodial periods of the sentences established by the established sentencing range in respect to a subsequent offence of driving whilst disentitled, 'for the purpose of ensuring that comparable minimum custodial periods are established for those who offend in a comparable way subsequent to the Amendment Act', I find that the range is as valid post the Amendment Act as it was before. Thus, I remain of the view that the sentences imposed by the magistrate were manifestly excessive.

79 Having arrived at this conclusion, the sentences imposed on the appellant ought to be set aside and it is necessary for me to resentence him.

80 I have determined that the appropriate penalty for each offence is 7 months' imprisonment.

81 It may be thought that it is illogical to impose a lesser sentence for the offence of driving whilst disentitled than the appellant received in 2002. However, in so doing I have taken into account that the penalty in 2002 was imposed less than a year after the appellant had received a sentence of 7 months' imprisonment for the same offence. Whereas the appellant has shown by his recent break of over six years in similar offending that there is some hope for his rehabilitation.

82 A degree of accumulation of these sentences is appropriate to reflect that the appellant offended in distinct ways, albeit at the same time. It is also necessary for me to ensure that the total sentence reflects the appellant's course of criminal conduct viewed as a whole. Accordingly, the appellant should serve 1 month of the sentence for driving whilst disentitled before commencing to serve the 7 months sentence for DUI.

83 I have considered whether the facts and the appellant's personal circumstances warrant the suspension of that term of imprisonment.

84 Having regard to the nature of the offences committed, the appellant's antecedents, the need to impose deterrent penalties and the available penalties, the decision of the magistrate that imprisonment was the only appropriate sentencing option and her decision not to suspend the terms of imprisonment imposed, reveals no relevant miscarriage of her discretion. As a general principle, offenders who repeatedly drive whilst disentitled, particularly when under the influence of alcohol, should expect to receive immediate custodial terms: Humble v State Solicitor for Western Australia [2009] WASC 99 [11].

85 This is not to say that the possibility of a suspended sentence is not open and has to be considered by the sentencing authority. However, as McKechnie J observed in O'Brien v Ritchie (Unreported, WASC, Library No 990123, 17 March 1999), quoted with approval in Griekspoor [90], in respect to driving whilst disentitled:

In the case of persistent conduct there is more likelihood that the offender will have to demonstrate some special circumstances which would justify the suspension of a sentence of imprisonment.

86 In my view, despite the matters raised by the appellant and in particular the lengthy break in his offending, those facts and circumstances do not justify me suspending the term of imprisonment. It is necessary for the appellant to understand that repeated offences of driving whilst disentitled and whilst under the influence of alcohol will result in custodial penalties to be served immediately.

87 The appellant's total sentence is 8 months' imprisonment and this shall be backdated to commence from 17 February 2009, the date he was first remanded in custody for these offences.