Criminal law - Appeal against sentence - Driving whilst under court imposed suspension - Whether sentence of imprisonment excessive - Whether sentence of imprisonment ought to have been suspended - Affect of appellant's psychological condition on determination of sentence - Turns of own facts

Road Traffic Act 1974 (WA), s 49(1)(a), s 49(3)(c)

Anderson v Little [2009] WASC 143

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

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

Gable v Nardini [2010] WASC 321

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

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

Mears v Holleman [2010] WASC 39

Newton v State of Western Australia [2006] WASCA 247

Paparone v The Queen [2000] WASCA 127

Payne v The Queen [2002] WASCA 186

Thompson v The Queen [2005] WASCA 223

1 JENKINS J: The appellant appeals from the sentence imposed on him in the Magistrates Court at Perth on 9 August 2010 for the offence of driving whilst not being a person authorised to do so. The magistrate sentenced the appellant to 7 months' imprisonment for the offence. The appellant was also disqualified from holding a motor driver's licence for nine months cumulative on any other period of disqualification yet to be served.

2 On 4 October 2010 McKechnie J ordered that the application for leave to appeal and the appeal be heard together. The grounds of appeal are:

(1) that the sentence was excessive, given factors personal to the appellant including:

(a) his untreated psychological condition that existed at the time of his 2008 to 2010 offending behaviour; and

(b) the appellant's remorse demonstrated by his psychological treatment sessions planned to carry on this treatment and his early pleas of guilty;

(2) the magistrate failed to give proper consideration to the applicability and/or appropriateness of a lesser penalty, particularly a suspended sentence of imprisonment.

3 On 9 August 2010 the appellant pleaded guilty to a charge which alleged that on 23 June 2010 at Glendalough he drove a motor vehicle on Jugan Street while not being a person authorised by pt IV(A) of the Road Traffic Act 1974 (WA) (the Act), and whose authority to drive was at the time suspended, contrary to the Act s 49(1)(a) and s 49(3)(c). The appellant also pleaded guilty to one count of driving with a blood alcohol content exceeding .02%, namely .031%, without an exemption. I will refer to the offence under appeal as driving under suspension.

4 The facts presented by the respondent to the court were that at 9.00 pm on Wednesday, 23 June 2010, the appellant drove a Mazda van on Scarborough Beach Road in Glendalough. The appellant was stopped by police for a random breath test. It was ascertained that he was not authorised to drive that class of motor vehicle. The appellant's WA probationary motor driver's licence was suspended by the Perth Magistrates Court on 7 October 2009, such suspension expiring on 20 August 2011. Further, he was breath-tested and gave a reading calculated to be .031 grams at the time of the occurrence. Whilst the prosecution notice stated that the offence under appeal occurred on Jugan Street, Glendalough, and the facts presented to the magistrate were that the offence occurred on Scarborough Beach Road, it does not seem that anything turns on that discrepancy.

5 The appellant's counsel handed up a psychologist's report to the chief magistrate, who was then presiding. The psychological report detailed some of the appellant's background. It said that the appellant originally came to Australia as a refuge from Turkey in 2001. He is Kurdish. He escaped his country because of the war and violence there.

6 Since being in Australia he had been a painter. Whilst in Sydney he had married a Japanese woman and had a child. His Japanese wife became homesick and returned to Japan with his child. They subsequently were divorced. He has not seen his child for a long time. The report said that the appellant then moved to Western Australia. He had no family or close friends in this State. He was living with six other people in shared accommodation. He had been unable to obtain work because of a foot injury caused by an accident on 21 July 2008.

7 That accident had occurred whilst he was working as a painter in Karratha. He was unaware at that time of his rights to workers compensation. Since then he had been off work with a significantly injured leg and foot and he had been struggling financially. The report said that he was now aware of his right to workers compensation. It seems that he may be making an application in that regard. The report said that after the accident the appellant had lived in a caravan and had been in significant pain from his injuries. He had become depressed and reported that he was not coping well at that time.

8 He then returned to Perth for treatment on his foot. He had to wait for a significant period of time for surgery and treatment. He was finally operated on but after that he still struggled to recover from his injuries and he remained in pain.

9 Under a heading of 'Psychological Symptoms Following the Accident', the psychologist noted the instructions that she had received from the appellant about his feelings after the accident. She said:

Mr Yuksel became more depressed and attempted to cope by drinking alcohol on a regular basis. He also started to develop anger issues, erratic behaviour and has felt out of control of his life. He gets annoyed very quickly and has very little patience. He has been caught several times driving over the alcohol limit and has gone to court for this and suffered serious consequences on several occasions. He never understood about his right for legal representation in court and has been gaoled for these offences on at least one occasion. His life has continued to go on a downward spiral. He is suffering from adjustment disorder with associated severe depression and is experiencing ongoing personal distress at the state of his foot and his inability to work. He feels that he has nothing to look forward to for the future.

Mr Yuksel is suffering symptoms of adjustment disorder with associated depression and anxiety. Psychological symptoms have been left untreated. As a result of the adjustment disorder, he has been drinking more, drink-driving and often behaving somewhat erratically and as a result of his actions has served time in jail.

10 The psychologist said that the appellant needed time to deal with his adjustment disorder with associated depression and anxiety.

11 During the plea in mitigation made on the appellant's behalf, the chief magistrate was told that on the day of the offending the appellant had been at home and received bad news that his brother had been involved in a vehicle accident. He had been drinking and had decided to go to the local shops to purchase some cigarettes; that was when he was stopped for the random breath test.

12 Counsel asked the chief magistrate to impose a sentence which would allow the appellant to continue 'to sort himself out in the community'. One of the matters referred to by counsel and the chief magistrate during the course of the sentencing proceedings was the appellant's prior criminal history; for example, his Honour said:

Why was he driving on this occasion? I mean, he had just been - I mean, my concern is that he had a suspended term of imprisonment imposed in October 07. He then breached an extraordinary driver's licence. He ended up getting a term of imprisonment in October 2009. He's then released and there's what, four or five months later he's driving again (ts 9/8/10, page 3).

13 The chief magistrate's comments were a reference to the appellant's prior criminal record which was before the court. That record discloses that in the four and a half years prior to sentence, the appellant had six prior convictions for driving under suspension or without a driver's licence.

14 For the two most recent offences he had received periods of imprisonment; that was, as the chief magistrate had indicated, on 7 October 2009 for two offences of driving under suspension. The appellant had been sentenced to terms of 7 months' imprisonment. For the offence of driving under suspension which had occurred before that, on 10 August 2007, the appellant had been sentenced to 7 months' imprisonment suspended for 18 months.

15 He had breached that suspended sentence by re-offending, including by driving contrary to the conditions of an extraordinary licence in September 2008. Thus, that suspended imprisonment order had been triggered when he appeared before the court on 7 October 2009 and he was given a further 7-month term of imprisonment to be served concurrently with the other concurrent terms of 7 months, making a total of 7 months' imprisonment.

16 The appellant also had six convictions for other driving offences not related to alcohol and three prior convictions for alcohol-related driving offences, all within the same four and a half year period. It is notable that approximately 10 out of his 15 prior convictions had occurred prior to the date of his accident, being 21 July 2008, and four of his prior convictions for driving under suspension or without a motor driver's licence had occurred prior to the date of the accident.

17 The magistrate then proceeded to sentence the appellant. His Honour referred to the appellant's bad record for traffic offending and continued:

I have heard of your foot injury and the consequent impact that has had on you and that you have now been advised of your rights under the Workers' Compensation Act and you are now receiving some treatment, including some counselling that's referred to in the report from psychological health care.

However, on this occasion in June, some four months or so after being released from the term of imprisonment that was imposed in October, you have chosen to drive again. Again, after you had been consuming alcohol, and it seems for the purpose simply of obtaining cigarettes. Given the number of occasions on which you have simply driven, notwithstanding the factors that Mr Monisse has outlined. You have made a clear decision to drive, you were under the influence of alcohol, presenting a danger to the public and in those circumstances I think a term of imprisonment and a term of immediate imprisonment is the only appropriate penalty (ts 9/8/10, page 7).

18 The chief magistrate then sentenced the appellant to 7 months' imprisonment for driving under suspension. The maximum penalty for a subsequent offence of driving under suspension is 18 months' imprisonment or a fine of $4,000.

19 The legal principles applicable to an appeal of this kind are well settled; they are referred to in numerous cases. For example, I summarised them in Anderson v Little [2009] WASC 143. I will not repeat those legal principles, but I apply them to this case.

20 I will first deal with ground 2 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 out.

21 Ground 2 asserts that the magistrate erred by failing to consider why a lesser sentence, particularly a suspended sentence, was not appropriate. The appellant submits that where a court is considering imposing a term of imprisonment, a magistrate is under a duty to perform, what the appellant's counsel described, as 'the double weight exercise'.

22 By that I understand counsel to mean that a magistrate is under an obligation to not only determine that a period of imprisonment was appropriate but also to specifically consider whether that term of imprisonment should be suspended. In doing so, it is submitted that, a magistrate is under an obligation to consider all relevant sentencing matters and all matters personal to the offender in determining whether that sentence should be suspended: Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321. In respect to a similar argument, in the case of Newton v State of Western Australia [2006] WASCA 247 Steytler P said:

In the circumstances, and accepting that the scheme set up by the Sentencing Act 1995 (WA) requires that a court be positively satisfied that the option of suspending imprisonment is not appropriate before it can impose a term of immediate imprisonment (see Duong v The State of Western Australia [2006] WASCA 110 at [12], [42]; Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 at [13], [15]), and accepting also that it is ordinarily desirable to give express consideration to this question, there was, in the circumstances of this case, no requirement for the sentencing Judge to say more than she did [10].

23 In Newton the argument was that the sentencing judge had failed to give separate consideration to the question whether a suspended sentence was appropriate and consequently had given no reasons for failing to impose a term of that kind.

24 This was a summary hearing which took place over a short period of time. The appellant's counsel asked the chief magistrate to impose a non-custodial sentence. It is apparent to me from the course of the sentencing submissions and the magistrate's comments on sentence that his sentencing remarks were primarily intended to address the very question of why his Honour considered that only a custodial sentence to be served immediately was the appropriate penalty for the appellant.

25 That was the very issue that was clearly raised by the appellant's counsel's submissions, that is, that the appellant should receive some kind of sentence which could be served in the community rather than an immediate term of imprisonment. That is the issue which the magistrate dealt with when he delivered his reasons for decision. I do not accept that the magistrate failed to give adequate consideration to why a lesser sentence, particularly a suspended sentence, was not appropriate.

26 Even if I am wrong in this regard and the chief magistrate did err in this respect, for the reasons which I give in respect to ground 1 I consider that there was no substantial miscarriage of justice. The penalty imposed by the chief magistrate on the appellant was entirely just and was the appropriate sentence for the appellant's offending, given all the circumstances of it.

27 I now turn to ground 1. In order to determine whether the sentence was excessive I must consider the criteria referred to in the case of Chan v The Queen (1989) 38 A Crim R 337, 342.

28 The maximum penalty prescribed by law for driving under suspension is 18 months' imprisonment. The appellant's sentences had to be reduced in order to reflect credit for his pleas of guilty and his personal circumstances. In my opinion a sentence of 7 months' imprisonment was well within the range of sentences the appellant could have received for the offence.

29 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.

30 I have also been greatly assisted by his Honour EM Heenan J's reference to a number of cases in Gable v Nardini [2010] WASC 321. I would refer and endorse what his Honour said in the case of Mears v Holleman [2010] WASC 39 which is referred to in Gable v Nardini at [34]. In the earlier case after reviewing the authorities, his Honour said:

I am satisfied that these cases support, in a general way, the proposition that when sentencing for multiple offences of driving whilst under suspension a range of 4 to 9 months' imprisonment is conventional for the disposition for each individual sentence [24].

31 His Honour then referred to a number of authorities supporting that proposition and continued:

This last batch of cases shows that sentences for convictions for driving while under suspension involving fourth, fifth, sixth, seventh or eighth such offences resulted in terms of imprisonment, after appeal, being fixed at between 4 months and 9 months with eligibility for parole [24].

32 The appellant submits that his offence is mitigated by his personal circumstances and consequently he should not have received an immediate term of imprisonment. In addition, he submitted that he should not have received an immediate term of imprisonment when he appeared before the Magistrates Court on 7 October 2009. It is said on his behalf that if he had been represented on that occasion and the material that was put before the magistrate on 9 August 2010 had been before the magistrate in 2009, he would not have received a term of imprisonment and that that would have altered the sentencing scenario that was before the chief magistrate in August in 2010.

33 I have grave difficulty accepting that proposition. It seems to me that the penalty imposed in 2009 was entirely appropriate given the material that was then before the magistrate. The simple fact is that in 2009 the appellant did receive a term of imprisonment. That was the scenario which the chief magistrate was faced with in August 2010.

34 Further, it is put that the appellant is in a special position because of the psychological condition which is described in the psychological report. In support of the proposition that he was motivated to do something about his psychological condition, a further report has been put before me today.

35 It outlines that since he was sentenced in August 2010, the appellant has attended four psychological counselling sessions in addition to the four that he had attended prior to sentencing in August 2010. There were also three occasions where he either did not attend appointments or left after only a short period of time.

36 The appellant submitted that the psychological report is evidence which supports a proposition that at the time of the commission of the offence he had no ability to control his offending behaviour because of the psychological condition which had been caused by the accident in July 2008.

37 I do not accept the full force of this argument. Before I go on to say why I do not, I should deal with the law. The legal principles applicable to the effect of a mental disorder on the sentencing process have been detailed in a number of decisions of this court and they are well known. For example, in Payne v The Queen [2002] WASCA 186 it was said:

[T]he law does at least accept that, where the mental disorder contributed to the commission of the offence, the moral culpability of the offender will be lessened and, the greater the contribution of the mental disorder, the more will that culpability be lessened. That should be reflected in the penalty imposed [40].

38 In Paparone v The Queen [2000] WASCA 127, Murray J, in some detail, went into the effect of a mental condition on the sentencing process. His Honour said:

The presence in the offender of such conditions as those referred to above will be relevant to the sentencing process in a number of different ways and for different reasons where there is a causal connection or link of a relevant kind established between the condition of the offender and the commission of the crimes for which he or she is to be sentenced. Generally speaking, where that is the case, the effect of the condition or disorder will be mitigatory, but that will not always be the case and indeed in some circumstances the effect may be one of aggravation, eg, where an intractable condition related to the offending behaviour leads to the conclusion that the offender will represent in the future a continuing danger to the community by reason of the commission of further offences. Such a condition may have an impact upon the type of disposition chosen and its severity.

Where it is advanced that an offender suffers from a condition or disability which should mitigate punishment, then as I have mentioned, it will be necessary to demonstrate a causal relationship between the offending and the condition, as I put it in CW, 'at least in the sense that as a result of the intellectual deficit the offender was not inhibited from committing the offence or offences in question'. In such a case the mitigation may be found in the conclusion that the offender's moral culpability, as opposed to his or her criminal responsibility, has been lessened so as to reduce the seriousness of the offending and the need for a denunciatory sentence.

Alternatively, or perhaps in addition to that factor, the offence and the offender may be seen to provide inappropriate vehicles for general and particular deterrence to be given their full weight. The extent to which such factors should be given weight will be a matter of degree depending upon the particular circumstances of the case in point, but it will often be the case, as Kennedy J put it in Dalgety, that such considerations of deterrence will continue to operate 'sensibly moderated'. Only in an extreme case will the relevance of such considerations be eliminated entirely.

For completeness I should add that quite apart from the situation where there is a causal link or connection between the offending and the condition in question and whether or not that is the case, if the offender's condition is such that a sentence which would otherwise be proportionate to the criminality involved may have a more severe impact upon the particular offender than upon others, then the court will be led in mercy, as well as by reason of the application of the general principles of sentencing, to moderate the punishment or choose an alternative disposition [50] - [53].

39 As is obvious from the above authorities, the first matter to determine is whether there is a causal connection between the appellant's condition and the offending. I think that the appellant's argument substantially falls at this first hurdle. The psychological report does not say that the appellant had no ability to control this particular type of offending behaviour after the accident. It is submitted that that can be inferred from what the psychologist says. In my view, that is not so.

40 The position is that the appellant appears to have had no ability or no motivation to control his offending behaviour, either before he had his accident or after he had his accident. It would not have been appropriate for the magistrate to sentence the appellant on the basis that it was the accident which caused him to offend. His inability to control his offending behaviour has a chronicity that transcends the date of the accident.

41 In my view, this is a case where the comments in Thompson v The Queen [2005] WASCA 223 are applicable. It was said there that, without wishing to diminish the importance of factors that were considered by the psychologist in that case and the importance of such factors on human behaviour, the sad truth is that problems of that kind, and even depression, are shared by many others who commit criminal offences:

Consequently, while some allowance should be made for these factors, they are, on their own, capable of producing only a relatively modest reduction in the sentence which would otherwise be imposed [73].

42 In respect to the effect of a term of imprisonment on the appellant, submissions were made to the chief magistrate to the effect that the appellant had found his term of imprisonment difficult to bear. Matters were referred to about overcrowding and about searches of his cell by a drug dog. In my view, none of those matters warranted any significant reduction in penalty being given to the appellant. They are matters which are part and parcel of a term of imprisonment and I see nothing in the appellant's circumstances which would make them harder to bear for him than for other prisoners.

43 The appellant submits that the community would be best served by him being given a conditional suspended imprisonment order, so that he could deal with his psychological condition in the community. In my view, the community is best served by him being given a just penalty. The appellant can deal with his psychological issues as well as receive a penalty of immediate imprisonment. The two objectives are not mutually exclusive. The fact is he was not deterred by previous penalties imposed on him. There is nothing unjust in him now being required to serve an immediate term of imprisonment.

44 In respect to whether the appellant is an exceptional or special case, my view is that he is not, for the reasons which I have already given. The appellant was well aware of the seriousness with which the law views this kind of offending. He took a known risk and he got caught. It is only fair that he should receive the usual and just punishment for his offending.

45 The matters which I have referred to above are relevant to the other criteria referred to in Chan; that is, the place which the appellant's criminal conduct occupies on a scale of seriousness of offences of this type and the personal circumstances of the offender. Having regard to the nature of the offence committed, the appellant's antecedents, the need to impose deterrent penalties and the available penalties, the decision of the chief magistrate that imprisonment was the only appropriate sentencing option and his decision not to suspend the term of imprisonment imposed reveals no relevant miscarriage of his Honour's discretion.

46 As a general principle, offenders who repeatedly drive whilst under suspension should expect to receive immediate custodial terms: Humble v State Solicitor for Western Australia [2009] WASC 99 [11]. This is not to say that a suspended sentence cannot be imposed for this kind of offence. However, in my view, despite the matters raised by the appellant, those factors and circumstances were not such as to render the chief magistrate's sentence to be manifestly excessive or to disclose any error.

47 It follows that the application for leave to appeal will not be granted and the appeal will be dismissed.