File No : PE 29478 of 2006, PE 29479 of 2006, AR 2880 of 2006, AR 3449 of 2006, AR 3450 of 2006

Criminal law - Appeal against sentence - Driving offence - 12th, 13th and 14th convictions for driving under suspension - Each successive offence committed while on bail - Sentences totalling 2 years immediate imprisonment - Whether sentences took account of all mitigating factors - Whether total sentence manifestly excessive

Sentencing Act 1995 (WA)

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

Mill v The Queen (1988) 166 CLR 59

Australian Coal and Shale Employees' Federation v The Commonwealth [1953] HCA 25; (1953) 94 CLR 621

Bakdadi v O'Neill [2003] WASCA 267

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

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

Cooper v Yates [2005] WASC 34

Dragic v Burrows [2000] WASCA 385

Heaton v Moulden [2004] WASCA 29

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

Jarvis v The Queen (1998) 20 WAR 201

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

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

Mason v Morrison [2004] WASCA 181

Plenty v Bargain [1999] WASCA 67

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

R v Tait (1979) 46 FLR 386

R v White [2002] WASCA 112

Thompson v Murray [2004] WASCA 168

Warren v Van Den Berg [2004] WASCA 32

Williams v Franzinelli [2001] WASCA 241

1 BLAXELL J: This is an appeal from sentences imposed in the Magistrates Court at Armadale on 30 May 2006 in respect of three offences of driving a motor vehicle while under suspension. Each of the subsequent offences was committed while the appellant was on bail in respect of the previous matter(s), and the learned Magistrate imposed three cumulative terms of 8 months, amounting to 2 years' imprisonment in total.

2 The appellant obtained leave to appeal on the following single ground of appeal:

"1. The learned Magistrate erred in ordering that the sentence of 8 months imprisonment for each of three offences of driving under suspension be served cumulatively on each other producing a sentence that was manifestly excessive."

However, at the hearing of the appeal I granted the appellant leave to add an additional ground, namely:

"2. The learned Magistrate erred in not reducing the length of the individual sentences imposed in order to reflect all mitigating factors."

3 The circumstances surrounding the appellant's offending and subsequent sentencing are a little unusual, and are best understood by reference to the sequence of events in the Magistrates Court.

4 On 2 May 2006 the appellant appeared in the Armadale Magistrates Court and pleaded guilty to offences of driving under suspension and giving a false name (committed on 3 March 2006) and of driving under suspension and reckless driving (committed on 3 April 2006).

5 The appellant was then aged 36 years and he had a significant prior record of offences against the Road Traffic Act including 11 prior convictions for driving whilst under suspension. The penalties imposed in respect of those previous offences had included terms of imprisonment.

6 The circumstances surrounding the offences committed on 3 March 2006 (as accepted by the learned Magistrate) were that the appellant at that time had sole responsibility for the care of his three children by reason of his partner being in custody while on remand for a serious drug offence. His 15-year-old daughter had been truanting from school, and during the course of the day on 3 March 2006 he discovered that she was once again absent and believed to be staying at her boyfriend's house.

7 The appellant was genuinely concerned for the welfare of his daughter in this situation, and immediately left home on his motorcycle intending to find and retrieve her. While driving to the boyfriend's house he was stopped by a police officer and required to undergo a random breath test. The appellant gave the police officer a false name and also of course was driving while under suspension.

8 The appellant was then charged with those two offences and released to bail. On 3 April 2006 while he was still on bail, he was telephoned by a close friend (Mr Ken McCall) who was depressed as a result of a marriage break-up and had recently attempted suicide. Mr McCall said that he was walking towards a bridge on Tonkin Highway, and from the statements that he made, the appellant believed that he was about to make another suicide attempt.

9 The appellant immediately departed on his motorcycle intending to stop Mr McCall from jumping off the bridge, and while travelling along Tonkin Highway overtook a marked police vehicle at an estimated speed of 157 kms per hour. While exiting Tonkin Highway at an off-ramp in the vicinity of the bridge, the appellant lost control of his motorcycle, hit the kerb, and suffered minor injuries.

10 When proceeding to sentence the appellant on 2 May 2006 the learned Magistrate noted that the maximum penalty for each offence of driving under suspension was 18 months' imprisonment. In view of the appellant's lengthy record, his Honour considered that terms of imprisonment were inevitable and that the starting point would have to be the maximum penalty in each instance. After reducing that maximum penalty by one third as required by the transitional provisions of the Sentencing Act, and after allowing a further discount of one third for the plea of guilty, his Honour arrived at a term of 8 months' imprisonment for each offence of driving under suspension.

11 His Honour also decided "by the barest of margins" that each of these terms (along with a term of 3 months' imprisonment imposed for the offence of reckless driving) could be suspended for two years. The factors that were taken into account in this regard were the appellant's family circumstances, his current employment, the support he was providing for his children, and "the reasons for which he drove".

12 The transcript shows that immediately after these sentences were passed, an unidentified person (presumably a court officer) informed his Honour that the appellant had been on parole at the time of committing the offences. This meant (because of s 76 of the Sentencing Act) that the terms of imprisonment could not be suspended. After standing the appellant down for a short period and hearing further submissions from counsel, his Honour decided to adjourn the proceedings until 30 May 2006. In the meantime, the appellant was released to bail, and a pre-sentence report was requested with a view to him being placed under a pre-sentence order. Prior to the appellant leaving the court, his Honour warned him in the following terms:

"You have no licence to drive with. So if you even think about hopping - - putting your leg over a motor bike, don't even worry about standing over here, you just come - - stay there and (your counsel) doesn't need to come. You're going straight to gaol. Do you understand that?"

13 Notwithstanding this warning, the appellant on 21 May 2006 committed further offences of driving while under suspension and giving a police officer a false name.

14 When the appellant appeared in court again on 30 May 2006 he entered pleas of guilty to both of the new charges. The prosecutor advised that the facts were "as per the complaint" and that there was "nothing remarkable" about the offences. Certainly, there was nothing in any way extenuating about the further offence of driving under suspension, which was committed by the appellant while "going to the chemist to get some medication".

15 When finally passing sentence, the learned Magistrate concluded that the appellant's continued offending meant that terms of immediate imprisonment were the only appropriate penalties. His Honour again took the maximum penalty of 18 months' imprisonment as a starting point and went through the same process as before in arriving at terms of 8 months in respect of each offence of driving under suspension.

16 His Honour expressly took account of the totality principle when determining that the three terms should be made cumulative on each other. The further term of 3 months' imprisonment for the reckless driving committed on 3 April 2006 was made concurrent, and the appellant thus received a total sentence of 2 years. The appellant was also made eligible for parole.

17 The principles to be applied on an appeal against sentence are well established. It is not the function of this Court to simply substitute the sentences that it would have imposed if it had been dealing with the matters at first instance. There is a presumption in favour of the correctness of the sentences the subject of the appeal, and they are only to be interfered with if it has been shown that there was some error in the exercise of the sentencing discretion by the court below (House v The King [1936] HCA 40; (1936) 55 CLR 499, 505).

18 In the present instance, it is said that the sentencing discretion miscarried because the three sentences of 8 months' imprisonment were made cumulative on each other, resulting in a total sentence of 2 years' imprisonment which was manifestly excessive. Alternatively, it is said that the learned Magistrate erred by not reducing the length of the individual sentences imposed in order to reflect all mitigating factors.

19 As to the first ground of appeal, there were clearly very good reasons for each of the three sentences in question to be made cumulative on the others. The second offence occurred while the appellant was on bail for the first offence, and he committed the third offence while on bail for the first two. There can be no suggestion that any of the offences fell within the "one transaction rule". Nevertheless, and by reason of each sentence having the maximum penalty as its starting point, the combined total of 2 years' imprisonment was at the very top end of the range of possible outcomes.

20 In these circumstances, it was appropriate for the learned Magistrate to consider making one of the three sentences in question concurrent with the others (Pearce v The Queen (1998) 194 CLR 610). However this would have resulted in a total term of only 16 months, which his Honour obviously considered (in my opinion, rightly) to be insufficient to reflect the overall culpability of the appellant. In this regard, it is fundamental to the principle of totality that the aggregate sentence must have a "just and appropriate" relationship to the overall criminality of the offender (Mill v The Queen (1988) 166 CLR 59, 62 - 63).

21 In my view, the real issue raised by the present appeal does not concern the principle of totality but the question of whether or not the individual sentences were proportionate to the degree of criminality involved in each particular offence. In this regard, there can be no question that the sentences of 8 months' imprisonment imposed for each of the first and third offences were entirely appropriate.

22 However, in respect of the second offence it is my opinion that the same sentence of 8 months' imprisonment was manifestly excessive in light of the particular circumstances involved. His Honour accepted that that particular offence was committed by the appellant for the purpose of preventing his friend from jumping off a bridge and committing suicide. The veracity of that claim was confirmed by the fact that the appellant was apprehended because he overtook a marked police car at 157 KPH.

23 This was a strongly mitigating circumstance, and notwithstanding the appellant's significant past record, I consider that a sentence of imprisonment based upon the maximum penalty was manifestly disproportionate to the degree of culpability involved.

24 It follows that the appeal against sentence in respect of the second offence of driving under suspension should be upheld. It falls to me to substitute a sentence that is appropriate in all of the circumstances, and in my view, the starting point for that sentence should be one half of the maximum penalty namely 9 months' imprisonment. After allowing for the same proportionate discounts as applied by the learned Magistrate, the substituted sentence will accordingly be one of 4 months cumulative on the other terms. This results in an overall sentence totalling 20 months' imprisonment.