BASSETT -v- BOARD [2011] WASC 317 (27 October 2011)

4 A few months later on 12 December 2010, the appellant was again caught driving while under suspension. She was dealt with on 20 July 2011 in the Perth Magistrates Court when she pleaded guilty. On this occasion she was fined $1,000 and disqualified from holding or obtaining a driver's licence for 9 months cumulative. This disqualification remains current.

5 The appellant appeals against the sentence on the first conviction, and appeals against the second conviction and the third conviction. On each occasion the ground of appeal is that there has been a miscarriage of justice in that the appellant's disqualification was not appropriate at the time of driving.

6 For reasons which follow, the appeal against the sentence on the first conviction must be allowed, and the appeals against the second and third convictions must be dismissed.

7 As to the first conviction, the sole ground is that the sentence was manifestly excessive. The prosecution concedes that a fine of $1,000 and an order for motor vehicle disqualification for 12 months were each outside the sentencing range and would consequently constitute a failure to properly exercise the sentencing discretion. This concession is appropriate.

8 At the time of sentence, the appellant was 22, had a minor traffic history and no previous convictions for driving while disqualified. She pleaded guilty. A tariff for offences of this nature, both in terms of fines and disqualifications, is difficult to discern. It is an area very much within the sentencing discretion of magistrates and Justices of the Peace who deal with a variety of motoring offences.

9 The question of manifest excess is a conclusion. That said, I am satisfied that in the circumstances, and having regard to the antecedents of the appellant and her only plea of guilty, both the fine and disqualification were manifestly excessive. I set aside the fine of $1,000 and impose in lieu a fine of $400.

10 There is no point in setting aside the disqualification because it is now been served and because of my conclusion on the second and third convictions. If there was any utility in doing so, I would set aside the period of disqualification and not impose a disqualification.

11 As to the second and third convictions, the appellant pleaded guilty to both. This is not an insuperable bar to a successful appeal, Criminal Appeals Act 2004 (WA) s 8(2). It is not necessary for the appellant to show error. Justice means justice according to law and there may be a miscarriage of justice without the identification of error.

12 However, in this case there is no miscarriage of justice. The sentence on the first conviction was one which the court was entitled to pronounce, albeit one which I have found manifestly excessive.

13 This case can be distinguished from Tubbs v Pomykaj [2009] WASC 379. In that case the recorded sentence of life disqualification was a wrong record because a magistrate had recalled the order and imposed the lesser term. The sentences, in terms of disqualification which followed after, were based on wrong information.

14 Here the appellant accepts that her convictions and sentences for the second and third convictions were correct at the time. The appellant relies on Lynch v Hargrave [1971] VicRp 11; [1971] VR 99 and The Commissioner for Railways New South Wales v Cavanough [1935] HCA 45; (1935) 53 CLR 220. However, each of those cases is distinguishable because in those cases the conviction was set aside.

15 In the present case, the first conviction remains. It is the sentence that has been set aside and varied, and a new sentence imposed. So there is no error in the present case. The appellant has received justice according to law. At any time she might have taken steps to appeal against the first sentence. While I appreciate she is young and may not know her appeal rights, from what counsel told me, at the time of the second conviction she saw a duty counsel who informed her and put things in train.

16 With that knowledge, she nevertheless drove on the third occasion. While the order of disqualification remained she was obliged to comply with it. She did not do so. For the second and third convictions she received justice according to law: see the DPP v TY (No 2) [2009] VSCA 226; (2009) 24 VR 705. Neither the fines nor period of disqualification are excessive for a repeat offender.

17 The sentence on the first conviction is set aside and in lieu a fine of $400 imposed. The appeals in respect of the second and third convictions are dismissed.