File No : MI 1013 of 2007, JO 5354 of 2007, PE 20642 of 2007, MI 7573 of 2007, MI 7576 of 2007, PE 55477 of 2007, PE 55478 of 2007

Road traffic - Driving under suspension - Term of imprisonment - Whether term should be suspended

1 On 28 September 2007 the applicant was driving at high speed down Lord Street, Eden Hill, when he made the error of tailgating an unmarked police car before overtaking it. He accelerated away, reaching speeds of 155 kph with police in pursuit. When he saw the lights and heard the siren he pulled over. The explanation he advanced was that he had to get to the bank before it closed. The applicant had previously been disqualified from holding or obtaining a motor vehicle drivers licence and so he was driving under suspension. Moreover, he was, at the time, on bail for traffic offences that had occurred on 11 July 2007 at Henley Brook.

2 On 11 July 2007 the applicant had an argument with his partner in Henley Brook. Leaving at about 10.30 pm in an irate mood, he drove at high speeds in the back streets of Henley Brook until he finally lost control of his vehicle which rolled over. He was driving with a blood alcohol content of 0.33% and while his licence was suspended. Moreover, he was driving while serving a suspended sentence of 6 months 1 day's imprisonment imposed on 13 February 2007 and a further suspended sentence of 7 months' imprisonment imposed on 13 June 2007, less than one month before.

3 So it was after pleading guilty to a series of offences encompassing the events in July and September that, when the applicant stood for sentence on 5 October 2007, he came as a person on his sixth and seventh conviction for driving under suspension or without a licence and a person who had been twice given a suspended sentence of imprisonment on condition that he committed no further offences.

4 The magistrate had adjourned sentencing from 5 October 2007 to 25 October 2007 as he said:

[T]o give careful consideration to ensure that the penalty I impose is commensurate with the seriousness of all these offences and is as lenient as I possibly can in all the circumstances.

5 The magistrate considered that the sentences suspended on 13 February 2007 and 13 June 2007 must be imposed and he imposed them. Those sentences totalled 13 months and 1 day. He imposed further sentences of 6 months' imprisonment for the driving offences committed after 13 June 2007 and by a combination of concurrent and cumulative sentences reached a total of 19 months. He made an order for parole eligibility.

6 On 6 November 2007 the applicant applied for leave to appeal. On 15 November 2007 the applicant applied for bail pending the appeal. On that date I refused bail but ordered that the leave to appeal and the appeal be heard and determined at the same time and that the matter be heard expeditiously.

7 A question arose as to what material was in fact before the magistrate. It appears that the magistrate had before him some references because he referred to them. They appear to relate to the applicant's work history. The magistrate accepted:

What emerges is that the accused (indistinct) considered by those who know him well as a family orientated dedicated man who has the support of his family and who is needed by members of his family, in particular his children. His former employer has regarded highly and identified him as a hard working, reliable worker with skills. A letter (indistinct) passed up to me today, Mr Arcari, is consistent with that description, yet the offending stands in the face of all of that, the counsel has explained that the offending has occurred in a background of the accused (indistinct) financially. There were mortgage and other financial commitments that needed to be met. This amounted to financial pressure (indistinct) his wife and the offending needed to be seen in that light. (ts 5, 6)

8 There was confusion as to what material had been placed before the magistrate regarding the medical and mental health of the applicant's partner. At the hearing on 13 June 2007 before another magistrate, details were given to that magistrate of the medical condition. The applicant's solicitor filed as new evidence a letter from the Ellenbrook Medical Centre detailing medical treatment and observations of the applicant's partner during 2006.

9 The transcript of the sentencing hearing of 25 October 2007 is indistinct in parts. The reporter notes the microphone for the magistrate was not operative. Therefore I indicated to counsel for the applicant that I would be prepared to accept that the medical condition of the applicant's partner was put before the magistrate, at least insofar as it related to her treatment in 2006. I have read the report from the doctor and also take account of the matters in the applicant's affidavit filed in the proceedings for bail.

10 At the hearing I granted leave to the applicant to amend the grounds of appeal which now read as follows:

1. The sentencing Judge's discretion miscarried when he determined to impose a term of immediate imprisonment, which sentence was manifestly excessive in all the circumstances;

(a) the Appellant is the carer for his mentally ill defacto partner and their two young children;

(b) The Magistrate gave this fact insufficient weight.

11 It is important to note that there is no appeal against the length of the suspended sentences imposed in February and June 2007.

12 The ground of appeal, as formulated, obscures rather than exposes the substance of the applicant's submissions. This is because what the magistrate did in respect of most of the sentence imposed was to activate the term of the suspended sentences. The magistrate correctly directed himself to the relevant provisions of the Sentencing Act 1995 (WA) s 80(3): Where there has been a further offence committed during the period of a suspended sentence a court must make an order to serve the terms of imprisonment that were suspended unless it decides that it would be unjust to do so in view of all the circumstances that have arises or have become known since the suspended imprisonment was imposed.

13 Faced with this legal reality, the essence of the applicant's submission is that the magistrate failed to take into account, in any way, the medical condition of the applicant's partner and the degree to which she and the children were dependent on him for day to day support and assistance, and it would be unjust to impose the terms of imprisonment. This submission however must be seen against the background of the case. On 13 June 2007 the magistrate then imposing the suspended sentence obviously took into account the personal circumstances I have outlined because he said:

[I]t is appropriate that in all the circumstances, in view of what I have been told, that those sentences of imprisonment for driving under suspension be suspended for a period.

14 He also warned the applicant that if he committed another offence it would be highly likely that he would go to prison on the suspended sentences.

15 The applicant had further offended within a month of the suspended sentence being imposed in June and offended again within three months of that offence.

16 On 5 October 2007 at the sentence hearing, it is completely understandable that counsel for the applicant, who had been counsel on 13 June 2007, commenced his submission to the magistrate by saying:

I wont be seeking to persuade you other than that a term of immediate imprisonment in relation to that should apply.

17 Further on, and after dealing with the applicant's personal circumstances including medical issues suffered by his partner, counsel said:

Really, this man has reached the stage where he is now in custody, he has got to receive a term of imprisonment today.

18 Faced with this concession by counsel, the applicant has a considerable hurdle to overcome. Because of this realistic plea in mitigation by counsel the magistrate was not directed to circumstances that have arisen or become known since the suspended imprisonment was imposed that would render it unjust to impose immediate imprisonment. This is not a reflection on counsel. There were no such circumstances. The applicant's partner's medical condition, and the reliance of she and her children upon him and the applicant's financial difficulties, were taken into account on 13 June 2007 and were unchanged by 25 October 2007.

19 Imprisonment always adversely affects innocent third parties. That fact rarely carries much weight: Hodder (1995) 81 A Crim R 88. A clear legislative policy is that, prima facie, the court ought to order service of the suspended imprisonment: Hall v The Queen [1999] WASCA 225; (1999) 21 WAR 364 at 375

20 In addition to the legislative policy, the magistrate was entitled to take into account the circumstances and offences that led to the breach of the suspended sentences. Driving under disqualification is a serious offence aggravated when committed, as here, in obvious defiance of the law: Donnachy v Riegert [2004] WASCA 48 at [120]. The predominant sentencing object in this case is personal deterrence for the safety of the public. Personal deterrence is likely to be undermined if the applicant can continue to put forward his partner's medical condition to mitigate his punishment. There is a simple way for the applicant to care for his family: stop driving.

21 In all the circumstances, the submission that the magistrate erred in failing to further suspend the sentences of imprisonment is without merit. Indeed, it would have been an error to have suspended the sentences.

22 This leaves the additional 6 month sentence imposed by the magistrate cumulatively upon the other sentences. The magistrate was conscious of totality and that this was the applicant's first sentence of imprisonment. He exercised leniency in making terms of imprisonment concurrent, notwithstanding that the offences had occurred at different times and in different circumstances and in a way which, but for the exercise of leniency, could well have justified consecutive sentences.

23 In deciding on an appropriate sentence, the magistrate addressed all material issues relating to the offence and to the offender. Apart from the pleas of guilty there was no real mitigation in the circumstances of the offences, having regard to the continuing disregard of the law being shown. The impact on the applicant's family could only ever be given limited weight: as Martin CJ said in Findlay v The State of Western Australia [2007] WASC 61:

The appellant cannot reasonably expect the courts as representatives of the community to give substantial weight to the interests of his family when he has shown such conspicuous disregard for the safety of the many families whose lives he has endangered by his reckless behaviour over many years. [23]

24 While that quotation is not entirely applicable on the facts to the applicant who has less offences on his record than did Findlay, the general principle is directly relevant.

25 I can discern no error in the magistrate's approach to sentencing concluding that a further term of imprisonment to be immediately served was warranted and that a term of 6 months' imprisonment cumulatively upon the suspended sentences was appropriate.

26 Having heard the argument directed to the merits of the appeal, and the response, I am of the view that the grounds of appeal are so lacking in merit that leave to appeal should be refused.