Road Traffic Act 1974 (WA), s 53, s 54, s 60, s 63

Disqualification period of three years for driving under the influence quashed and two year disqualification substituted in lieu

Brooks v Taylor & Stewart, unreported; SCt of WA; Library No 960410; 31 July 1996

Cranssen v The King [1936] HCA 42; (1936) 55 CLR 509

Dickens v The Queen [2004] WASCA 179

Forbes v Durant [1999] WASCA 85

Jackamarra v Orr [2003] WASCA 278

Mullane v Smith, unreported; SCt of WA; Library No 1318; 10 November 1989; (1989) 10 MVR 111

Paterson v Steer [2000] WASCA 250

Richards v Damianopolous [2002] WASCA 159

Smith v Pritchard [2003] WASCA 6; (2003) 37 MVR 525

Taylor v Samuels (1977) 16 SASR 266

Walley v Miles, unreported; SCt of WA; Library No 950179; 10 April 1995

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

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

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

Perry v Stark (1990) 12 MVR 515

Pink v Webb (1990) 11 MVR 539

R v Tait (1979) 46 FLR 386

Reynolds v Wilkinson (1948) 51 WALR 17

1 This matter arises out of one of the penalties imposed on one of the charges arising out of an episode of driving by the applicant that had ensued after he had left a tavern and that commenced with his failure to stop as requested at a random breath test station. This episode involved a high speed pursuit as well as a minor accident and other property damage en route to his final stopping place, his home. Four charges of offences against the Road Traffic Act 1974 (WA) ("the Act") resulted, including a charge for driving under the influence against s 63. The applicant pleaded guilty to all of them.

2 The penalty in question is the three year disqualification from holding a motor vehicle licence imposed following conviction on his guilty plea for the charge for driving under the influence.

3 To begin, there are some procedural matters that I need to address.

4 The appellant was sentenced by the learned Stipendiary Magistrate on 22 August 2003. By application for extension of time to appeal and leave to appeal dated 13 October 2004 the appellant sought to appeal against this decision. On 26 October 2004 Roberts-Smith J ordered the application be referred to a single Judge for hearing with the appeal.

5 His Honour's order referred to the grounds of appeal as follows:

"The grounds for appeal shall be that the penalty imposed was manifestly excessive for the following reasons:

(a) insufficient regard was had to the Applicant's previous good record.

(b) insufficient regard was had to the Applicant's medical condition.

(c) insufficient regard was had to the Applicant's contrition, and

(d) too much regard was had to the Applicant having previously been a police officer."

6 Before me counsel for the appellant rested the application for the 14 month extension of time on his reference to the appellant's depression and anxiety, which were presumably the same as those that figured in the submissions and material on sentence before the learned Magistrate, matters to which I will refer later in these reasons. There is also support for the extension, if not in direct terms, in the psychological report dated 18 August 2004 which is annexed to the affidavit of the appellant sworn 8 October 2004 in support of his application for extension and leave.

7 Counsel for the respondent indicated no objection to the application for extensions. In the circumstances I granted the extension at the hearing.

8 As to the leave to appeal forming part of the application, I noted at the hearing before me that the grounds set out in the order of Roberts-Smith J as above did not include reference to the matter of failure to properly take account of the manner of driving of the appellant in the episode I have briefly described, a matter which assumed principal significance at the hearing. In the submissions for the appellant at the hearing before me the matter was put in terms that the manner of driving was relevant to one of the other charges that arose of the episode, that of reckless (inherently dangerous) driving, not that of driving under the influence. It was made clear that the reference in the grounds for appeal related only to the disqualification penalty for the offence of the latter rather than that for the offence of the former.

9 The appeal before me was argued on the basis that a failure to properly take the manner of driving into account in relation to the driving under the influence charge as the learned Stipendiary Magistrate had done was a further particular to explain why the penalty of disqualification he imposed was excessive. No objection to argument on this basis was made by counsel for the respondent. Of course the Court has, under s 192 of the Justices Act 1902 (WA), a wide discretion to amend or give leave to amend the grounds of appeal, including at the hearing. In my view this is an appropriate case to exercise this discretion to grant such leave on the basis that it had been properly sought.

10 Finally, I consider this case an appropriate one for the grant of leave to appeal, because, as will become apparent from these reasons, the appeal grounds to me disclose an arguable case under the Justices Act, s 187.

11 There is a final preliminary procedural point I should refer to. At the hearing counsel for the respondent sought leave to amend the style of this cause to replace "the Police" as the respondent with Adrian Vuleta, who was the complainant below. There was no objection to this, and I granted the application.

12 There is a most useful rehearsal of the basic approach that I should take in relation to a case like this one to be found in the judgment of E M Heenan J in Smith v Pritchard [2003] WASCA 6; (2003) 37 MVR 525. I was referred to it in supplementary submissions by the respondent. I will explain shortly how these supplementary submissions came to be made.

13 In Smith, E M Heenan J had this to say in [11], remarks which I would adopt not simply for their general utility but also because they were made in the context of an appeal against penalty in relation to a driving under the influence conviction:

"It is well established that an appellate court should not interfere with a sentence imposed merely because it may be of the view that the sentence is excessive. Variation of the sentence is only justified if the Court is satisfied that in passing sentence the Court or Magistrate acted in error or on a wrong principle or upon a misunderstanding or in wrongly assessing some material feature of the evidence - R v Tait (1979) 46 FLR 386 at 388 and House v The King [1936] HCA 40; (1936) 55 CLR 499 at 504 - 505. These authorities have often been cited and in Parfitt v Van Aken, unreported; SCt of WA; Library No 960122; 6 March 1996 Steytler J cited with approval the following passage from Cranssen v The King (1956) (sic [1936] HCA 42; 1936) 55 CLR 509 which had been cited in R v Tait (supra):

'There must be some reason for regarding the discretion confided to the court of first instance as improperly exercised. This may appear from the circumstances which that court has taken into account. They may include some considerations which ought not to have affected the discretion, or may exclude others which ought to have done so. The court may have mistaken or been misled as to the facts, or an error of law may have been made. Effect may have been given to views or opinions which are extreme or misguided. But it is not necessary that some definite or specific error should be assigned. The nature of the sentence itself, when considered in relation to the offence and the circumstances of the case, may be such as to afford convincing evidence that in some way the exercise of the discretion has been unsound. In short, the principles which guide courts of appeal in dealing with matters resting in the discretion of the court of first instance restrain the intervention of this Court to cases where the sentence appears unreasonable, or has not been fixed in the due and proper exercise of the Court's authority.'"

14 In this case, as I have said, the driving episode gave rise to four charges. They were under four different provisions of the Act, to each of which, as I have said, the appellant pleaded guilty. The charges and their penalties were as follows:

Failure of driver to stop after traffic accident whereby any person is injured or any property is damaged (s 54(1))

Failure to stop when called upon to do so by a member of the Police Force (s 53(1)(b))

Reckless (inherently dangerous) driving (s 60(1))

Driving under the influence of alcohol s 63(1))

Penalty of $1000 plus 3 year fine suspension concurrent

15 The approach a sentencing court should adopt in the case of penalties for multiple offences, including ones arising out of a single transaction or continuing episode, is the passage in the judgment of McLure J, with whom Murray J and, in this respect, Jenkins J agreed in Dickens v The Queen [2004] WASCA 179 at [11] as follows:

"... In the ordinary course of sentencing for multiple offences, the sentencing court will firstly determine the appropriate sentence for each offence, secondly assess whether the sentences should be made concurrent or cumulative in accordance with established principle and finally review the total sentence to be imposed by reference to the principle of totality including the question whether the total sentence is crushing."

16 The focus in this appeal was on the first and third stages of the process. To this point there was no dispute in the hearing before me as to the relevant principles. However, in terms of the first stage, the appropriate sentence on each charge considered individually, there was a division between the parties, and, as I will explain, some signs of a division on the authorities. This division in both cases went to the relevance of the manner of the driving to the determination on the appropriate penalty on the charge for driving under the influence under the Act, s 63.

Relevance of Manner of Driving to Driving Under the Influence Charge

17 The Act, s 63(1) reads as follows:

"(1) A person who drives or attempts to drive a motor vehicle while under the influence of alcohol, drugs, or alcohol and drugs to such an extent as to be incapable of having proper control of the vehicle commits an offence, and the offender may be arrested without warrant."

18 There are a number of authorities which have considered the factors which the sentencing court may take account of in determining the appropriate penalty in respect of a conviction on such a charge. I was directed to two substantial discussions.

19 One is that of Steytler J in Brooks v Taylor & Stewart, unreported; SCt of WA; Library No 960410; 31 July 1996, in which his Honour said (at page 6):

"Sentencing principles in respect to the offence of driving while under the influence of alcohol, drugs, or both, to such an extent as to be incapable of having proper control of the vehicle include the following:

(a) that, in considering the seriousness of the offence, the degree to which the offender was under the influence of alcohol or drugs or both is the most important factor, albeit not determinative;

(b) the manner of driving is important. This requires a consideration of the whole of the surrounding circumstances;

(c) the sentencing court is only able to take a view of the facts of the case where those facts are established by the evidence; and

(d) it is necessary for the sentencing authority to have regard to the antecedents and personal circumstances of the appellant."

20 His Honour then cites a number of authorities, both from this State and from elsewhere.

21 I was also directed to the judgment of Rowland J in Walley v Miles, unreported; SCt of WA; Library No 950179; 10 April 1995, where his Honour had occasion to consider Taylor v Samuels (1977) 16 SASR 266, one of the authorities cited by Steytler J in Brooks (supra). Rowland J discussed whether the South Australian authority was relevant to the law in this State because of a difference between the Western Australian and South Australian provisions, namely, the deeming provision in the Act, s 63(5). The subsection deems a person to have been under the influence of alcohol to such an extent as to be incapable of having proper control of a motor vehicle if at the time of the alleged offence the person had a percentage of alcohol in their blood of or exceeding 0.15 per cent. There was an indication in the South Australian authority that greater emphasis for penalty purposes might need to be placed on the manner of driving as opposed to the level of blood alcohol. Rowland J said (pages 6 - 7):

"The fact that the level was much higher than the minimal level prescribed may not, in all cases, impact on the extent of an offender's incapacity to control a motor vehicle. To that end, without attempting to place greater emphasis on either the level of alcohol and the manner of driving, it seems to me that it is necessary, when considering a period of disqualification, to have regard to both of those factors."

22 I was also directed to a further case in which a similar approach to those commended in Brooks and Walley was followed. This was the decision of E M Heenan J in Smith (supra), where his Honour said (at [19]):

"... An examination of the facts should have noted that, while the appellant had a high blood alcohol reading, had been driving erratically and dangerously, and had attempted to evade the police, he had not been involved in any accident or injury. "

23 In Smith, unlike Brooks or Walley, multiple charges had arisen out of a driving episode, including charges for driving under the influence (the Act, s 63(1)), charges for failure to stop when called upon by a member of the police (s 53(1)(b)), and driving in a manner that was in the circumstances dangerous to the public or any person (s 61(1)).

24 While the position with respect to the relevance and manner of driving to the penalty for driving under the influence would appear to be reasonably clear from the authorities I have just cited, I discovered and drew to the attention of counsel at the hearing the dicta of Barker J in Jackamarra v Orr [2003] WASCA 278. His Honour was concerned with the Act as it was at the time of the commission of the relevant offence (19 November 1978), and had to answer the question whether it was possible to disqualify a driver for life for a second offence. His Honour concluded it was not, by reference to the structure of penalties in the provision involving (as now) a rising minimum penalty for each subsequent offence up to, at the time of the offence, a permanent disqualification under s 63(2)(c) for a third (and now any subsequent) offence.

25 In the course of arriving at this conclusion he had this to say (at [35]):

"While there is a degree of discretion in respect of the period of the disqualification of a person's driver's licence for the first and second offence of driving under the influence, the factors relevant to the exercise of that discretion would appear to be limited to the extent to which a person is under the influence of alcohol, drugs or alcohol and drugs at the relevant time. The penalties provided for in the section plainly are not intended to be imposed to punish behaviour that contravenes other provisions of the Road Traffic Act or the law of Western Australia. For example, for a second offence of driving under the influence, it would not be open to the Court to impose a very long period of disqualification simply because the driver was also guilty of dangerous driving causing death or injury."

"In this context, s 63 governs driving under the influence. The conviction of a person for that offence attracts the penalty, regardless of how well, or how badly, the person is actually driving the vehicle at the time. The concern of Parliament obviously is to prevent persons from drinking and driving. This intention no doubt is based on the view that a driver under the influence of alcohol or drugs is likely to be a menace on the roads. Thus, s 63 is designed to upgrade the penalty for each subsequent conviction of the offence."

26 There was no reference in Barker J's reasons to Brooks or Walley.

27 As Jackamarra (supra) had not been referred to by either counsel, and both indicated that they were not in a position to address me fully with respect to it without having an opportunity to consider it more carefully, I gave the parties an additional seven days after the hearing to make supplementary submissions.

28 Supplementary submissions for the appellant understandably adopted the approach in Jackamarra as support for his position. Those for the respondent, on the other hand, were that, while Jackamarra appeared to conflict with Brooks and Walley, any actual conflict should be resolved in favour of the position in those two cases. This was put on the basis of general sentencing principles from s 6 of the Sentencing Act 1995 (WA), as well as the body of authority I have referred to, to none of which Barker J referred in Jackamarra. In any event, it was submitted that it would be appropriate to consider Jackamarra as not precluding consideration of the manner of driving when determining how much credit should be given for mitigatory factors such as an early guilty plea and the antecedents of the offender.

29 There was a further submission for the respondent, one also made at the hearing, that even if Jackamarra or other reasons did prevent either use of the manner of driving, the appeal should still fail, as no substantial miscarriage of justice had occurred under the Justices Act, s 199(1)(b). I will return to this point at the end of these reasons.

30 However, it seems to me, with respect to Barker J in Jackamarra, that it is consistent with legislative intent underlying s 63(1) for the manner of driving to be treated as relevant to the assessment of the appropriate penalty. This is so whether or not the deeming provision in s 63(5) is relevant in a particular case. I do not consider there are any material differences between the section as it was for the offender in Jackamarra and as it is today. There may of course be nothing in the manner of driving of an offender under s 63 to bring him to the attention of the authorities, as was the case in Paterson v Steer [2000] WASCA 250, where the deeming provision appears to have been engaged. However, the types and duration of the risks arising out of the incapacity to which s 63 relates appear to me to be directly relevant to a consideration of penalty, and the manner of driving is relevant to those risks.

31 In addition, the manner of driving may assist in showing how the offender was or was not influenced by the alcohol or drugs in question, given the possibility that that same level of intoxication may have a different effect on different people, a matter to which I will return. Steytler J in Brooks (at pages 7 and 8) specifically referred to the utility of direct evidence on the matter of how the offender was influenced by the alcohol consumed.

32 This matter is not, in my view, affected by whether there are aspects of the manner of driving that are also relevant to other charges in respect of the same driving episode. This is confirmed both by Smith, as well as by considerations of totality, the third stage of the sentencing process described in Dickens (supra). At that stage, matters of possible double punishment could be dealt with.

33 It follows then that I consider it was appropriate for the learned Magistrate to have considered the driving episode for the purposes of the exercise of his sentencing discretion in relation to the driving under the influence charge. However, while important, it is less important in considering the seriousness of the offence than the degree to which the appellant was under the influence of alcohol: Brooks, at page 6. At the same time it seems to me Brooks indicates the manner of driving may itself indicate that influence. I will proceed then to consider the factors to which Brooks referred, in the order in which they were listed.

34 The appellant's blood alcohol level as at the time of the driving episode was calculated as 0.181, presumably with the benefit of the Act, s 71. This was of course enough to engage the deeming provision in s 63(5).

35 It was put to me that the appellant's level of 0.181 per cent was at the lower end of the range that begins with s 63(5)'s 0.15 per cent and tops out at or about 0.35 per cent to 0.45 per cent, in practical terms. That top is represented by the level at which, it was said, a person is likely to be so much under the influence of alcohol as to be incapable of driving at all. I was referred for that proposition to W E Cooper, et al, "Alcohol, Drugs and Road Traffic" Juta, Cape Town, (1979), at pages 156 - 157.

36 There was no challenge to that use of the text. However, a close reading of the pages referred to indicates to me the authors' view that the influence of a given level of alcohol in the blood varies very much with the individual. Levels "as low as 0.04% or less" may be "sufficient to materially influence driving", while blood alcohol levels "of up to 0.30% and very occasionally even higher" may be encountered where there is not the "gross confusion and disorientation" associated with the state of being "very heavily intoxicated". The submission appears to be that at that upper level there would be an incapacity to drive. In that context, it seems to me that 0.15 per cent under s 63(5) is a benchmark chosen by the legislature at which to deem the relevant incapacity to be shown for all, rather than the base of the range of blood alcohol concentration of potential concern for the purposes of an offence like this one. The text indicates to me that to treat the appellant's blood alcohol level as a serious matter for sentencing purposes would not necessarily have been inappropriate.

37 However, it is not simply the blood alcohol level that is of concern here. There is also the matter of alcohol's influence on the appellant. Here it seems to me the manner of driving and its results, including the accident, were on the material before the Magistrate, including the psychological report the appellant had put before him, so out of character as to indicate the influence of alcohol on him. Other matters may also have been relevant, such as the psychological matters other than "alcohol addiction" to which that report refers. However, the appellant himself had referred the episode to that addiction (AB17).

38 I conclude that the matter of the influence of alcohol on the appellant as this factor is described in Brooks is of considerable importance in this case, if not at the highest end of the range.

39 In order to evaluate this factor, I need to describe the driving episode in much more detail.

40 On Friday 11 July 2003, at about 9.34 pm, the appellant was driving along Kargotich Road, Mundijong, when he was motioned to stop for a random breath test by police. While directly looking at the police the appellant accelerated heavily, and the police initiated a pursuit, activating their emergency lights and sirens. The appellant's vehicle reached speeds of approximately 160 kilometres an hour in a posted speed limit area of 110 kilometres an hour. This pursuit lasted for about five minutes, after which the lights and sirens were switched off, as it was evident that the appellant was not going to stop. The police continued to follow at a safe distance. The appellant drove on, failing to stop at a stop sign. He again reached speeds of 160 kilometres an hour, on another road where the posted speed limit this time was 90 kilometres per hour. In doing so, he overtook two vehicles travelling in the same direction. He continued on to a further road, where he travelled at a speed of 100 kilometres an hour where the limit was 80 kilometres an hour. He came to a roundabout which he entered on the wrong side, mounting the roundabout curb and colliding head on with another vehicle. This caused minor front end damage to both vehicles, but no other damage: each vehicle was doing about 15 to 20 kilometres an hour at the time of impact. The appellant then reversed his vehicle over the curb of the roundabout colliding with the roundabout sign and causing it to fall. He did not stop at this point, but drove on, with the following police vehicle stopping to assist at the crash scene.

41 A police helicopter, which had become involved by about this time, directed another police vehicle to intercept the appellant's, and this second police vehicle activated its emergency lights and sirens. Again the appellant failed to stop. Again, the lights and sirens were switched off, and the police vehicle continued to follow the appellant's. However, at about this time, the appellant moderated his driving and began to follow the road rules. The police followed the appellant into the area in which he lived. The episode ended with the appellant pulling into the driveway of his home address. The appellant got out of his car and handed himself over to police.

42 The learned Stipendiary Magistrate (AB 24) referred to the episode as a "total disgrace as you - - you've probably described it yourself. You were involved in alcohol consumption". He went on:

"Then you got behind the wheel of your motor vehicle, and then when the police showed some interest in you drove your vehicle in a way that was a risk to any other person who happened to be on the road. You travelled at excessive speed. You were involved in a collision of another vehicle. You continued driving until you reached your home and then you simply gave yourself up if that's the right phrase to use."

43 The learned Stipendiary Magistrate then emphasised the risks involved in those involved with "alcohol consumption" who drive, and later included a further reference to the accident with the other vehicle. In imposing the array of sentences he did, he prefaced the announcement of those sentences with the following:

"You were a potential risk. You came close to realising that risk than most, but I can't sentence you on the basis of what might have happened. I can only sentence you on the basis of what did happen."

44 It does appear clear that his Worship laid considerable emphasis on the manner of driving, including at least the failure to stop when called on by the police, and the speed and accident elements. His remarks were, however, for the purposes of the sentences he imposed for all four of the charges, including that of reckless driving under s 60. Whether, in relation to the s 63 charge of driving under the influence, he placed more emphasis on the manner of driving than was consistent with the sound exercise of sentencing discretion, or his exercise of that discretion otherwise miscarried, requires me to examine the remaining matters within Brooks, matters which his remarks also addressed.

Antecedents and Personal Circumstances of the Appellant

45 The antecedents and personal circumstances of the appellant were the subject of the particulars in the original grounds of appeal in this matter. There is no doubt that the learned Stipendiary Magistrate took steps to take account of the matters so covered. He had adjourned the initial presentations on sentence to permit a pre-sentence report on the appellant to be compiled. The appellant presented the learned Stipendiary Magistrate with his curriculum vitae, and spoke to it. The pre-sentence report indicated the appellant had no previous court history, and the appellant indicated to the learned Stipendiary Magistrate he had no driving record of any sort. The pre-sentence report referred to a problem with alcohol that had developed in early 2001 when he was struggling to deal with serious work-related stress. There was also a reference to a letter written by a clinical psychologist indicating that the appellant had symptoms of major depression and severe anxiety which to some extent had been instrumental in maintaining his alcohol addiction.

46 The appellant had in his submissions to the learned Stipendiary Magistrate referred to his feelings of remorse and shame as a result of the out of character nature of the driving episode, and the pre-sentence report referred to the appellant, since his arrest on charges arising out of it, having abstained from alcohol consumption and consulting with a psychologist to address his alcohol problem.

47 The appellant's curriculum vitae presented to the learned Stipendiary Magistrate referred to his history of employment in responsible positions including as a police officer over the period 1974 to 1994, portions of which involved him working with police traffic branch, in the accident enquiries section, and as a traffic patrol officer.

48 In his sentencing remarks the learned Stipendiary Magistrate referred to the appellant's alcohol problem, to the lack of prior history, to the appellant's acknowledgement of its out of character features, to his efforts to address the issues which he said had led to the incident occurring, and to the Magistrate's view that it was "ironic" the appellant had had a "previous involvement as a police officer in incidents such as fatal traffic accidents and so on".

49 It is not possible from the analysis just set out to conclude that the learned Magistrate did not have regard to the matters in the particulars of the appellant's grounds of appeal of his previous good record, his medical condition or his contrition. Nor do I consider that the learned Magistrate's language in referring to the appellant's previous involvement as a police officer showed he weighed that involvement against him in any way.

50 However, to properly evaluate whether the disqualification period of three years the learned Magistrate imposed for the driving under the influence charge was excessive I must also consider whether, against the nature of the offence as I have described it and the other circumstances of the case as I have described them, there is "convincing evidence that in some way the exercise of the discretion was unsound": Cranssen v The King [1936] HCA 42; (1936) 55 CLR 509. The authorities indicate there are two sources of possible assistance in making this determination: one is the legislation creating the offence, and the other is other reviews of such sentences.

51 It is established that a minimum driving licence disqualification period for a driving offence is a guide to the exercise of the discretion to set a period: Mullane v Smith, unreported; SCt of WA; Library No 1318; 10 November 1989; (1989) 10 MVR 111, at pages 7 and 12 (a disqualification under the Act, s 60). However, the "fixing of a statutory minimum does not give rise to a presumption that the minimum penalty is to be imposed", and "the circumstances of a first offence may be of a higher scale of seriousness warranting a longer period of disqualification than the circumstances of a second offence": Richards v Damianopolous [2002] WASCA 159, McLure J, at [18] and [17] (also a disqualification under s 60).

52 Under the Act s 63, the offender must for a first offence receive a licence disqualification for a minimum period of six months. For a second offence, the minimum period is nine months. For a third or subsequent offence the disqualification is permanent. There is no provision tying disqualification periods to blood alcohol levels. It will be seen then that the disqualification period in this case, at three years, was six times the minimum for the appellant as first offender.

53 For the appellant it was submitted that additional guidance could be found in the context to s 63. This context is the minimum disqualification periods under s 64AA (driving with 0.05 per cent blood alcohol content) and s 64 (driving with 0.08 per cent blood alcohol content).

54 Under s 64AA there is provision for a disqualification penalty in addition to a fine only in the case of second or subsequent offences up to a reading that stands at 0.08 per cent. The mandatory minimum period in each case is three months.

55 Under s 64 there is mandatory minimum disqualification period for first offence, second offence, and subsequent offences thereafter. The minima vary upwards depending on the percentage of alcohol in the blood. Relevantly for current purposes the minimum for the highest range referred to, 0.14 per cent to less than 0.15 per cent, for the first offence, is six months, while, for the second, it is 12 months and, for subsequent ones, it is 14 months.

56 It appears that from this context I was being invited to conclude that particularly exceptional circumstances would be needed to justify so lengthy a disqualification period for the s 63 offence as three years for a first offender whose blood alcohol level was 0.181 per cent. However, I consider that only very limited guidance can be drawn from the context pressed on me. That guidance is the requirement for a very serious case to justify as lengthy a disqualification period as the one imposed on the appellant. I also consider that it is appropriate to consider the authorities for the guidance they might provide as to the seriousness of this case.

57 I was referred to three authorities in which licence disqualifications for s 63 offences were reviewed on appeal.

58 In Walley, a five year disqualification period had been imposed. The blood alcohol level was calculated as 0.25, the matter represented a second offence, the applicant's record showed petty criminal driving offences as well as assault offences and some dishonesty (albeit over a period some time before events in question), and there was a prior offence of driving with blood alcohol level in excess of 0.08 per cent. The driving was not such as to attract attention. The five year disqualification period was reduced on appeal to two and a half years.

59 In Brooks, a disqualification period of 15 months had been imposed. The appellant had been riding a motorcycle at the time which left the road and came to rest in a paddock, causing minor injuries to the appellant and minor damage to the motorcycle. The appellant's blood alcohol reading was calculated at 0.03 at the time of the occurrence, but he also had a cannabis reading of 52 ugl, and the Magistrate had taken into account a subsequent drunk driving offence. On appeal, this was held to be an error which meant the sentence of disqualification had to be set aside. On the exercise of his sentencing discretion, Steytler J referred to the fact that the appellant had a solid and supportive family, was 19-years-old, had completed a substantial portion of an apprenticeship, had no prior criminal record, had references showing him to be of good character, and had shortly prior to the commission of the offence been involved in an argument with his de facto partner. The Magistrate's order for the appellant to pay costs amounting to more than double the minimum fine was also referred to. Steytler J referred to the disqualification period of 15 months, two and half times the minimum period provided for by s 63 for a first offence, as excessive, and his Honour substituted for it a period of nine months.

60 In Paterson (supra) the Magistrate had imposed an 18 month disqualification period. The appellant had no prior convictions or driving record. He had been stopped for a random breath test, and there was no reference in the appeal judgment to any aspect of her driving, although the blood alcohol level is variously referred to in the judgment as 0.17 per cent and 0.12 per cent. The disqualification period of 18 months was reduced on appeal to nine months.

61 Neither counsel, nor I have been able to find other authorities on review of penalties for disqualification for driving under the influence that were concerned with the duration of the disqualification period. In none of the cases referred to here did it appear that charges other than the ones under s 63 had been laid. I note, however, in Walley the reference by Rowland J to his having been referred to other cases dealt with on appeal to the court indicating that disqualifications of three years imposed in the Court of Petty Sessions for second offences had on several occasions been reduced from three years to two years and two and a half years (page 4).

62 I was also referred to a number of cases on reckless driving under s 60. The section carries a minimum disqualification period for a first offence of six months, the same as s 63; for a second offence a minimum disqualification period of nine months, unlike s 63's two years; and for a third or subsequent offence permanent disqualification, as for s 63. Given the relevance to the offence under s 63 of manner of driving, it seems to me some guidance can be taken from the disqualification periods imposed under s 60, although that guidance is limited indeed.

63 Three authorities are of assistance. The first is Richards (supra), where the Magistrate had imposed a disqualification period of 12 months. The driving did not involve any drinking, the appellant drove his car at 185 kilometres per hour in a 100 kilometre per hour zone on the Mitchell Freeway, there were no other vehicles in close proximity to the appellant's, the weather was overcast and the roads were wet. The appellant was a young man of 19 with no prior criminal history, and he was living at home in a close family environment. McLure J contrasted her case with that of Forbes v Durant [1999] WASCA 85.

64 In Forbes (supra) a disqualification period of two years had been imposed by the Magistrate in respect of the driving by an 18-year-old in a car with two other occupants at 175 kilometres per hour in a light industrial area, with a group of people on the footpath on the street where the speeding occurred. The appellant had no prior driving record, and McKechnie J reduced the disqualification period of two years to 12 months. In Richards (supra), McLure J accepted that the 12 months period of disqualification was within the permissible discretionary range and not excessive.

65 The other authority in relation to s 60 from which I draw some assistance is Mullane (supra) where the Magistrate had imposed a five year disqualification period. This case, unlike the other two, involved multiple charges arising out of an episode of driving that had some points of similarity with the one in this case. The driving involved a failure to stop when called upon by the police, the blood alcohol level was calculated at 0.196 per cent, and a police pursuit through streets in South Perth included driving past traffic stopped at traffic control lights, mounting a footpath, a near collision with pedestrians crossing a street, driving the vehicle at police officers, and continued high speed efforts to avoid apprehension culminating in a loss of control on a grassed area near the Narrows Bridge and a collision with two trees damaging the front of the vehicle. Charges of failing to stop when called upon by the police (the Act, s 53(1)(b)), reckless driving (s 60(1)), and driving under the influence (s 63) resulted. Apart from the disqualification for the s 60 offence, a disqualification of 12 months for the s 63 offence had been imposed. The appellant had no previous material record and no traffic matters recorded against him.

66 Heenan C (as he then was) considered that the period of five years for the s 60 charge, which was the only disqualification the subject of the appeal, was more than was necessary for the protection of the public, deterrence of other would be offenders and proper punishment for the appellant, and that a period of two years would be more appropriate, (page 13). These aims for the penalty were also referred to by McKechnie J in Forbes at [18], who added a fourth, personal deterrence for the offender.

67 Finally, I note McKechnie J's conclusion in Forbes at [15], from his review of the authorities he considered in that case, that "it is difficult to discern a tariff or range of sentences most commonly imposed" for disqualifications under s 60. It seems to me there is a similar position for s 63. However, I also note that there are parallels to be drawn between the s 60 cases and the s 63 ones, pointing at the very least to the need to find very special justification for a disqualification period of three years for a first offence, even one involving a serious driving episode. It seems to me that it would be difficult to find a justification in the absence of such circumstances as a serious accident, or a deliberate use of the vehicle as a weapon.

68 In all these circumstances, particularly noting the antecedents and personal circumstances of the appellant, read with the manner of driving and the level of blood alcohol for him, and the authorities on driving under the influence as well as reckless driving, it appears to me that the disqualification period of three years for driving under the influence in this case was too long a period of disqualification, one that was longer than was necessary to achieve the aims of such a penalty. It is certainly true that the driving involved was of a serious character, involving significant risks to other drivers, including an accident, although the accident involved only minor property damage on the materials before the learned Magistrate. I also note in respect of the driving that there was no attempt by the appellant to drive at police, nor was there throughout an endeavour to avoid apprehension. The last stages of the driving episode, involving driving within the limit, and peaceful surrender at his home, were consistent with the account the appellant provided to the learned Magistrate of an anxiety attack the appellant suffered which had helped produce the episode and which had caused the appellant to return to his home.

69 Counsel for the respondent put to me that even if I was of the view that the period of disqualification was excessive, I should bear in mind the possibility that the learned Stipendiary Magistrate, had he imposed a lesser suspension period for the driving under the influence charge, might have taken a different view as to the appropriateness of having the disqualification period for the dangerous driving charge concurrent with that for the driving under the influence. Counsel for the respondent indicated that, even if the appropriate range for the driving under the influence charge in this case was 18 months to two years, as counsel for the appellant was prepared to concede, had a disqualification period at the upper end of that range of two years been made cumulative on the dangerous driving charge a total disqualification period of three years would have resulted. In such circumstances, under the Justices Act, s 199(1)(b), the appeal should be dismissed on the basis that, notwithstanding that the point as to excessive sentence raised on the appeal had been decided in favour of the appellant, no substantial miscarriage of justice had occurred.

70 This submission draws of course on the third stage in the sentencing process referred to by McLure J in Dickens at [12]. As her Honour indicates, a sentencing Judge must consider whether the application of the guides as to making sentences concurrent provided by the one transaction or continuing episode rule, as it is described there, would result in an appropriate measure of the total criminality involved in the conduct. If the conclusion is that such an application would not provide such a measure, then the appropriate result should be achieved if practicable "by making the sentences wholly or partially cumulative rather than by adjusting the otherwise appropriate sentence".

71 However, I have concluded, on a consideration of the authorities to which I have referred, as well as the circumstances of this case, that I cannot confidently conclude as counsel for the respondent would submit to me I should. It seems to me that the analysis required by the third stage of the sentencing process as referred to in Dickens, leads me to the view that the total criminality represented by the conduct in this case would call for a total disqualification period no longer than two years.

72 It follows from all of this that the appeal in this case is allowed and that the disqualification period for the driving under the influence charge is quashed, and in lieu thereof a period of two years is substituted, concurrent with the other disqualification period imposed.

• Introduction
• Procedural matters
• Principles Relevant to this Appeal
• Relevance of Manner of Driving to Driving Under the Influence Charge
• Alcohol's Influence on the Appellant
• The Manner of Driving in this Case
• Antecedents and Personal Circumstances of the Appellant
• Guidance from the legislation
• Guidance from the authorities
• Conclusion
• Order