Result : Convicted and sentenced to 16 months' imprisonment with eligibility for parole

Appeal - Appeal against sentence - Principles involved in appeals against sentence - Whether sentence imposed by sentencing Judge involved error of a kind warranting appellate interference - The totality principle - Mitigating circumstances - Whether sentencing Judge took account of guilty plea - Effect of transitional sentencing provisions - Whether sentences imposed by sentencing Magistrate were manifestly excessive - Appeal allowed - Re-sentence - Sentencing principles - Whether suspended term of imprisonment would be appropriate - Special circumstances required in case of persistent conduct - Term of imprisonment appropriate in the circumstances

Road Traffic Act 1974 (WA), s 49

Sentence Administration Act 2003 (WA)

Sentencing Act 1995 (WA), s 8

Sentencing Legislation Amendment and Repeal Act 2003 (WA)

Cross v Cook [2001] WASCA 242

Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321

Donnachy v Riegert [2004] WASCA 48

Griekspoor v Scott [2000] WASCA 419; (2003) 23 WAR 530

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

Mason v Morrison [2004] WASCA 181

Moulds v The Queen, unreported; CCA SCt of WA; Library No 980147; 4 March 1998

O'Brien v Ritchie, unreported; SCt of WA; Library No 990123; 17 March 1999

Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295

Stickland v Halliday, unreported; SCt of WA; Library No 920006; 15 January 1992

Zammit v Illich [2003] WASCA 88

Attenborough v State of Western Australia [2005] WASCA 132

Auburn v Sears, unreported; SCt of WA; Library No 970508; 2 October 1997

Austin v Grapes & Ors [2004] WASCA 102

Bates v Wheatley [2000] WASCA 38

Calway v Wiebe, unreported; SCt of WA; Library No 990001; 13 January 1999

Chinnery v hansen [2001] WASCA 349

Dragic v Burrows [2000] WASCA 385

Fernando v Keady, unreported; SCt of WA; Library No 940135; 4 March 1994

Herbert v The Queen [2003] WASCA 61; (2003) 27 WAR 330

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

Iveson v State of Western Australia [2005] WASCA 25

Jennings v Carson & Anor, unreported; SCt of WA; Library No 980608; 21 October 1998

Krakouer v Durka, unreported; SCt of WA; Library No 980595; 14 October 1998

Marshall v Spent [2000] WASCA 114

Narrier v Fallows & Anor, unreported; SCt of WA; Library No 970175; 11 April 1997

Otley v The Queen [2005] WASCA 5

R v Chan (1989) 38 A Crim R 337

Sheppard v Blakey [2001] WASCA 309

Smith v Cleal [2001] WASCA 188

Smith v Hope [2001] WASCA 287

Staley v Lopes [2005] WASCA 75

Stewart v Waghorn [1999] WASCA 150

Williams v Franzinelli [2001] WASCA 241

Worthington v The State of Western Australia [2005] WASCA 72

1 LE MIERE J: The appellant appeals from the decision of a Magistrate whereby the learned Magistrate sentenced the appellant to an aggregate term of 16 months' imprisonment with eligibility for parole. The appeal is brought pursuant to leave granted by a Judge of this Court.

2 On 15 February 2005 the appellant was sentenced in relation to seven offences, committed on 1 July 2004, 4 October 2004 and 18 January 2005. The relevant information is summarised in the following table compiled by the respondents.

Court dates, outcome and transcript page reference

2. 14/12/04 - Plea of not guilty: 'So you weren't driving? - No': FA 14- 15.

3. 25/1/05 - Adjourn contested hearing: FA 21 - 25.

5. 15/2/05 - Sentenced: 8 months' imp. (cumulative with term for 6631/04) eligible for parole: FA 40.

2. 14/12/04 - Plea of not guilty: 'So you weren't driving? - No': FA 14 - 15.

3. 25/1/05- Adjourn contested hearing: FA 21 - 25.

2. 14/12/04 - Plea of not guilty: 'So you weren't driving? - No': FA 14 - 15.

3. 3.31/1/05 - Plea of guilty: A 38,40,42,44; A 6.

4. 15/2/05 - Sentenced: 8 months' imp. Eligible for parole, 12 months' MDL disqualification: FA 40.

2. 14/12/04 - Plea of not guilty: 'So you weren't driving? - No': FA 14 - 15.

3. 31/1/05-Plea of guilty: FA 38,40,42,44; A 6 (complaint for related offence).

3. 15/2/05 - Sentenced: 1 month imp (Concurrent): FA 40

3. 15/2/05 - Sentenced: 8 months' imp. (concurrent), 12 months' MDL disqualification (cumulative on disqualification for 6631): FA 40.

Transcript page reference key:

Affidavit of Shane Michael Murphy affirmed 15 April 2005 = A

Further affidavit of Shane Michael Murphy affirmed 13 June 2005 = FA"

3 Most importantly for the purposes of this appeal, the appellant was convicted of three counts of driving a motor vehicle whilst having been disqualified from holding or obtaining a driver's licence contrary to s 49(1)(a) and s 49(2)(a)(iii) of the Road Traffic Act 1974 (WA) ("driving whilst suspended").

4 For those offences the appellant was sentenced to a total of 16 months' imprisonment, that is two cumulative terms of 8 months' imprisonment and one concurrent term of 8 months' imprisonment, with eligibility for parole.

5 The appellant was given leave to appeal on four grounds. The appellant has abandoned appeal ground 2. The remaining grounds of appeal are as follows. Ground 1 is that the Magistrate erred in failing to give the appellant any discount on his sentence on account of his plea of guilty to all matters before the court. Ground 3 is that the Magistrate erred in failing to adjust the appellant's sentence as required by the Sentencing Legislation Amendment and Repeal Act 2003 (WA) ("SLAR Act"). Ground 4 is that the Magistrate erred in imposing a sentence that was in all the circumstances excessive, and which could, in the appellant's personal circumstances, have been suspended.

Principles involved in Appeals against Sentence

6 The principles according to which an appellate court may interfere with the discretionary judgment of a sentencing Judge are well known. A court of criminal appeal may not substitute its own opinion for that of the sentencing Judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing Judge exercised his or her discretion. The discretion which the law commits to sentencing Judges is of vital importance in the administration of our system of criminal justice: Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 per the court at [15]. The question for an appeal court is whether the sentence imposed by the sentencing Judge involved error of a kind warranting appellate interference with a discretionary judgment. Unless some material error of fact or law can be discerned in the reasoning of the sentencing Judge, then the question for the appellate court to consider is whether the circumstances of the case are such that the imposition of the sentence involved an implied error.

7 The penalty applicable to the offence of driving whilst suspended is a fine of not less than 20 penalty units ($1000) or more than 80 penalty units ($4,000) and imprisonment for not more than 18 months and a licence disqualification for a period of not less than 9 months and not more than 3 years: Road Traffic Act 1974, s 49(3)(a)(ii) and s 49(3a).

8 As a result of the SLAR Act and the Sentence Administration Act 2003 (the new sentencing regime), the sentencing Magistrate was obliged to impose a sentence that was two thirds of the sentence that the sentencing Magistrate would have imposed had the old sentencing regime been in operation at the time of sentencing (where the court is not following the practice of the court as established in accordance with the new sentencing regime). As a result, the effective maximum sentence for each offence of driving whilst suspended is 12 months' imprisonment.

The Standards of Sentencing Customarily Observed with Respect to these Offences

9 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.

10 The respondents submitted that the consistency and gravity of the appellant's antecedent criminal history distinguishes the present case from the majority of the authorities. The appellant has an extensive record mostly for traffic or driving related offences. Prior to the commission of the offences the subject of this appeal the appellant had seven convictions for driving whilst suspended. The appellant was first sentenced to a term of imprisonment for driving whilst suspended in 1994. In November 2002 the appellant was convicted of driving whilst suspended and sentenced to 12 months' imprisonment suspended for 2 years. He breached the terms of the suspended sentence when he was again convicted of driving whilst suspended in June 2003 and was then sentenced to a further term of imprisonment.

11 A basic principle of sentencing law is that a sentence of imprisonment imposed by a court should not exceed that which can be justified as appropriate or proportionate to the gravity of the crime considered in light of its objective circumstances. Individual sentences must not only be proportionate, but, in the case of multiple offences, the total sentence must be proportionate to the totality of the offending.

12 The totality principle requires a Judge who is sentencing an offender for a number of offences to ensure that the aggregation of the sentences appropriate for each offence is a just and appropriate measure of the total criminality involved. The principle enables a court to mitigate what strict justice would otherwise indicate, where the total effect of the sentences merited by the individual crimes becomes so crushing as to call for the merciful intervention of the court by way of reducing the total effect. The application of the totality principle therefore requires an evaluation of the total criminality involved in all the offences with which the prisoner is charged. Where necessary, the court must adjust the prima facie length of the sentences downward in order to achieve an appropriate relativity between the totality of the criminality and the totality of the sentences: Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295 per McHugh J at 307 - 308.

13 The learned Magistrate commenced his sentencing remarks as follows:

"One thing about putting things off is they come back to haunt you. That's what you've done. Over a period of time you've put things off and off and off and in the meantime you've accumulated. You were driving under suspension and you got caught. Pending sentence the last thing you do is go out and drive again, particularly with your record."

The learned Magistrate then went on to refer to the appellant's record.

14 The sentencing Magistrate did not say anywhere in the course of his sentencing remarks that he had reduced the sentences imposed by him as a consequence of the appellant's pleas of guilty.

15 It has long been recognised that a plea of guilty by an offender is a mitigating factor. This has obtained statutory recognition in s 8(2) of the Sentencing Act 1995 (WA). Moreover, by s 8(4) of that Act if, because of a mitigating factor, a court reduces the sentence it would otherwise have imposed on an offender, the court must state that fact in open court. Subsection 8(4) is a reflection of public policy laid down by Parliament to facilitate the understanding by persons who are sentenced how the sentence has been arrived at. However, as Malcolm CJ observed in Moulds v The Queen, unreported; CCA SCt of WA; Library No 980147; 4 March 1998, in relation to s 8(4), an error on the part of the sentencing Judge to state in open court that certain mitigating factors were taken into account does not invalidate the sentence where there is no doubt that they were taken into account.

16 The sentencing Magistrate did not refer in his sentencing remarks to the appellant's pleas of guilty. However, as I have indicated, that is not an error which automatically invalidates the sentence. One must look at the circumstances at the time of sentencing, including the sentencing remarks by the Magistrate, the sentence itself and the available sentencing range.

17 There is, as I have said, no indication in the sentencing Magistrate's sentencing remarks that the sentences imposed by him were reduced on account of the appellant's pleas of guilty. Indeed, the learned Magistrate's opening remarks suggest that they were not. There are other factors which point to the Magistrate not having reduced the sentences imposed on account of the appellant's pleas of guilty. Each of the sentences imposed for driving whilst under suspension was beyond the range of sentences ordinarily imposed for offences of that nature. The learned Magistrate imposed the same sentence of 8 months' imprisonment in respect of charge no 1770/05 as he imposed in respect of the other two charges of driving whilst suspended. The appellant pleaded guilty to charge 1770/05 at an early time and only 17 days after the commission of the offence. That is to be contrasted with the appellant's pleas of guilty to charges 6752/04 and 6631/04 where his plea of guilty was at a late time. It is true that the sentencing Magistrate made the sentence on charge 1770/05 concurrent with the other sentences but the fact remains that the same term was imposed.

18 In my opinion the sentencing Magistrate did not, because of the appellant's pleas of guilty, reduce the sentences he would otherwise have imposed. A reduction in the sentences should have been made on account of the appellant's pleas of guilty. The case against the appellant may have been strong and his pleas to charges 6752/04 and 6631/04 were made at a late time. Nevertheless by his plea the appellant saved the court, the prosecutor and the witnesses the time and trouble of trying the case. Consequently, the first ground of appeal has been made out.

19 The relevant amendments to the Sentencing Act and the transitional provisions of the SLAR Act came into effect before the sentences were imposed on the appellant. However, there was no reference to those provisions by the learned Magistrate in his sentencing remarks and this Court should therefore consider whether his Honour did not take them into account. There is no need for a Judge to expressly refer to the transitional provisions in the course of his or her sentencing remarks. There is no provision like s 8(4) of the Sentencing Act that requires the sentencing Judge to state in open court that he or she has reduced by one-third the sentence that he or she would otherwise have imposed.

20 As I have said the effective maximum sentence for each driving while suspended charge is 12 months' imprisonment having regard to the transitional provisions of the SLAR Act. The sentence imposed by the sentencing Magistrate in respect of each offence was close to the effective maximum. However, having regard to the sentencing Magistrate's remarks I am not satisfied that the sentencing Magistrate failed to adjust the appellant's sentence as required by the SLAR Act. Ground 3 of the appeal is not made out.

21 There are two parts to ground 4. The first part is that the sentencing Magistrate imposed a sentence that was in all the circumstances excessive. The second part is that having regard to the appellant's personal circumstances a suspended sentence could have been imposed.

22 In my opinion the sentences imposed by the sentencing Magistrate are manifestly excessive. Manifest excess is a conclusion. Excess is, or is not, plainly apparent. It is a conclusion which does not depend upon attribution of identified specific error in the reasoning of the sentencing Judge and which frequently does not admit of amplification except by stating the respect in which the sentence is excessive. It may be excessive because the wrong type of sentence has been imposed (for example, immediate imprisonment rather than suspended imprisonment) or because the sentence imposed is manifestly too long. But to identify the type of error amounts to no more than a statement of the conclusion that has been reached. It is not a statement of reasons for arriving at the conclusion: Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321.

23 In my opinion the sentences imposed by the sentencing Magistrate are manifestly excessive in that the total or aggregate of the sentences is 16 months immediate imprisonment. That was conceded by the respondents. That is sufficient for ground 4 of the appeal to be made out.

24 The appellant and the respondents both accepted that if the court allowed the appeal then I should proceed to re-sentence the appellant. I will do so. I observe that I may have regard to any relevant matter that has occurred between when the appellant was convicted and when the appeal was heard.

25 At the hearing of the appeal counsel for the respondents, without objection from the appellant, informed the court of the material facts relating to each of the three offences of driving whilst under suspension.

26 The first offence occurred at 11.15 pm on Thursday, 1 July 2004. The appellant drove a Toyota utility along Felgate Court, Westfield. He was stopped regarding another matter and asked for his motor driver's licence. He stated he did not have it with him and gave a false name and address.

27 The second offence occurred at 2 pm on Monday 4 October 2004. At 2 pm that day police observed the defendant ride his Yamaha 900 cc motor cycle along Albany Highway Maddington. Police stopped the appellant for other traffic matters including speeding at 80 - 85 kilometres per hour in a 60 kilometres per hour zone. The appellant gave the police a false name and address.

28 The third offence occurred on 18 January 2005. At 8.50 am the appellant was sitting in a passenger seat of a Holden Commodore in a car park off O'Sullivan Drive, Westfield. Opposite the vehicle was a Kawasaki motor cycle with the key in and a helmet on the handlebar. Police spoke to the appellant who at first denied that the motor bike was his. A short time later the appellant admitted the motor bike was his and that he had ridden it to the car park. The appellant told the police that he was running late for work.

29 The appellant's antecedents and personal circumstances are set out in a summary of a community corrections directorate verbal court report that was referred to in the course of the appeal and the contents of which were referred to before the sentencing Magistrate. The appellant is now 35 years of age. He split up with his partner in January 2004. The appellant looks after his former partner's two children, aged 14 and 12 years, and has his own child, aged 7 years. He remains friends with his ex-partner. The appellant resides with the three children together with his ex-partner's mother, the older children's grandmother. At the time of sentencing by the Magistrate the appellant's ex-partner was in prison. The appellant's ex-partner has subsequently been released from prison. At the hearing of the appeal the appellant's counsel provided to me a letter from the older children's grandmother. The grandmother stated that her daughter is now out of prison but she is finding great difficulty in adjusting back to society and only sees her once or twice a week. The grandmother has been off work and had a serious operation. She says that it appears that she may need a further operation. The grandmother states that, since the appellant was released on bail in April, he has been working, full time casual, four days a week and has been helping her to look after the three children and getting them off to school each day.

30 The appellant has stated that since his convictions in February 2005 he has sold all of his motor vehicles so as to remove the temptation of again driving whilst under suspension.

31 The appellant has a bad record. He has numerous traffic and driving related convictions, including the previous convictions for driving whilst under suspension to which I have already referred. He also has been convicted of offences of dishonesty. The appellant has previously served terms of imprisonment. When previously sentenced to a suspended term of imprisonment he breached the terms of that suspension by again driving whilst under suspension.

Factors to be taken into Account in Sentencing

32 The offences of which the appellant has been convicted are typical offences of driving whilst under suspension. They were not accompanied by circumstances of aggravation such as driving under the influence of alcohol, dangerous driving or matters of that sort. On the other hand, the appellant did not drive the vehicle because of some medical emergency or reason of that sort.

33 The respondents submitted that the sentences imposed by the Magistrate ought primarily reflect the seriousness of the offences. However, the effect of a bad criminal record will be that the appropriate sentence for the offence will not be reduced by the mitigating circumstance of a good character. Similarly, the failure of the last penalty to act as a deterrent will offset other mitigating factors: Griekspoor v Scott [2000] WASCA 419; (2003) 23 WAR 530 at [71] referring to Stickland v Halliday, unreported; SCt of WA; Library No 920006; 15 January 1992 at 4. The respondents submitted that the appellant's record shows a continuing course of conduct reflecting a continuing attitude of disobedience to the law.

34 I have already referred to the appellant's personal circumstances. I take into account that since he was released on bail pending this appeal the appellant has not committed any offence, has been in regular employment and has looked after the three children.

35 I take into account that the appellant pleaded guilty to all three charges of driving whilst under suspension and in the case of the last charge admitted the offence to the police prior to his arrest and subsequently pleaded guilty at an early time.

36 A court must not impose a sentence of imprisonment on an offender 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. The law has always regarded driving whilst under disqualification as a particularly serious offence, especially when committed in circumstances which suggest a wilful defiance of the law: see Donnachy v Riegert [2004] WASCA 48 per Roberts-Smith J at 120. In this case, a term of imprisonment is an appropriate sentence.

37 Counsel for the appellant submitted that a suspended term of imprisonment would be the appropriate sentence in this case. Although the possibility of a suspended sentence is always open, as McKechnie J observed in O'Brien v Ritchie, unreported; SCt of WA; Library No 990123; 17 March 1999:

"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."

38 A sentence of 4 months' imprisonment for a fourth offence of driving under suspension was quashed by Miller J in Cross v Cook [2001] WASCA 242 and a suspended sentence of 4 months' immediate imprisonment was substituted. His Honour remarked at [15]:

"Whether it is now correct to say that a suspended sentence may only 'in exceptional circumstances' be imposed is doubtful in the light of the decision in Dinsdale v The Queen. It would be preferable now to say that a suspended sentence of imprisonment is always open and only if it is decided that it is not appropriate to impose such a suspended sentence may a court impose a sentence of immediate imprisonment. The emphasis tended to be the other way around before the decision in Dinsdale v The Queen."

39 In Zammit v Illich [2003] WASCA 88, McKechnie J observed at [15]:

"The chances of any sentence other than an immediate term of imprisonment for a fifth offence of this type are slight."

40 In Donnachy v Riegert (supra) Roberts-Smith J said at [124] that he did not take that observation of McKechnie J to be intended as a statement of principle and he agreed with the observation as a practical observation.

41 In Mason v Morrison [2004] WASCA 181, Miller J set aside suspended terms of imprisonment imposed for offences of driving whilst under the influence of alcohol and driving whilst under disqualification and imposed in lieu of those sentences imprisonment for 9 months in relation to each charge to be served concurrently. His Honour said at [21] - [23]:

"I am satisfied that in the circumstances of this case the learned Magistrate erred in law in suspending the terms of imprisonment imposed for the offences before him. When regard is had to the fact that this was a multiple offender in relation to both driving under the influence and driving under suspension/disqualification, it is very difficult to see why a sentence of imprisonment to be served immediately should not have been imposed. The learned Magistrate recognised that fact, but felt that the respondent's record of a year of non-offending counted strongly in his favour. Unfortunately, this was an error, because the period of non-offending was only 3 months by reason of the fact that the respondent had only been released from prison on 23 September 2003.

When one has regard to the fact that the respondent had 11 prior convictions for driving a motor vehicle whilst under suspension, or at least nine of those in the 20 years prior to his arrest, suspension of the sentences does appear to be unduly lenient.

In all the circumstances of the case, I consider that sentences of imprisonment to be served immediately were the only disposition open. The authorities to which I have referred support that view."

42 On behalf of the appellant it is submitted that the court should have regard to the fact that he has been looking after the three children. That is a relevant consideration. However, I accept the submission of the respondents that in view of the appellant's antecedent criminal history and in particular the previous (breached) suspended sentence and sentence of immediate imprisonment for driving whilst suspended convictions, it is not appropriate to impose a suspended sentence, notwithstanding the appellant's personal circumstances and those of the children.

43 The appropriate sentence is that the appellant be sentenced to a term of imprisonment of 7 months on each of charge 6752/04 and 6631/04 and a term of imprisonment of 5 months on charge 1770/05. I take into account the appellant's pleas of guilty in respect of all three offences and in relation to the third charge that the appellant admitted the offence to the police and pleaded guilty at an early time.

44 Each of the offences of driving whilst under suspension are separate offences deserving of separate punishment. However, I must have regard to the totality of the sentences to be imposed. Having regard to that consideration I will order that the sentences will be served concurrently.

45 The commencement date of the sentence should be backdated 2 months and 3 days to take into account the time the appellant spent in custody between the date of his sentencing by the learned Magistrate and when he was granted bail pending his appeal.