Thompson v R (1992) 8 WAR 387; Swayne v R (1981) 41 A Crim R 214, applied

Road Traffic Act 1974 (WA), s 49

Sentencing Act 1995, s 89

Krakouer v Durka, unreported; SCt of WA; Library No 980595; 1 October 1998

O'Brien v Ritchie, unreported; SCt of WA; Library No 990123; 3 March 1999

Tonkin v Pountney, unreported; SCt of WA; Library No 980247; 21 April 1998

1 MALCOLM CJ: This was an appeal against sentence pursuant to leave granted by Templeman J under s 187 of the Justices Act 1902. That grant of leave was limited to the refusal of the learned Magistrate to order eligibility for parole in respect of cumulative sentences of imprisonment totalling four years imposed upon the appellant for four offences of driving without a licence while under disqualification. The appellant also appealed under s 189 of the Act against the refusal by Templeman J to grant leave to appeal against the total sentence so imposed.

2 At the conclusion of the argument on 22 July 1999 the Court was unanimously of the opinion that the imposition of a total sentence of four years was within the scope of the exercise of the discretion of the learned Magistrate and no reason had been advanced to interfere with that sentence. So far as the question of eligibility for parole is concerned, by a majority, the Court was of the opinion that it had not been established that there was any error in the exercise of the discretion by the learned Magistrate to refuse to grant parole.

3 The result was that the Court ordered that the appeal against the refusal of leave to appeal against the imposition of the sentences totalling four years should be dismissed, and that the appeal against the decision of the learned Magistrate refusing to make an order for eligibility for parole should also be dismissed. These are my reasons for joining in the making of those orders.

4 On 30 September and 21 October 1997 the appellant pleaded guilty in the Court of Petty Sessions at Fremantle to a total of 20 offences, including four offences of driving a motor vehicle without being the holder of the appropriate valid driver's licence for that class of vehicle, and whilst legally disentitled to hold a driver's licence contrary to s 49(1)(a) and s 49(2) of the Road Traffic Act 1974 (WA). At the material times the appellant had been permanently disqualified from holding a driver's licence as a result of previous convictions for the same or similar offences.

5 The first of the subject offences of driving while disqualified contrary to s49(1)(a) and s 49(2) was committed on 10 October 1996. The appellant had been stopped by Police for failing to stop at a stop sign and also wilfully misled Police by giving a false name. These actions constituted offences under reg 402(8) of the Road Traffic Code and s 97(b) of the Road Traffic Act respectively.

6 The second offence of driving while disqualified was committed on 5 November 1996. The appellant was stopped by Police for executing an incorrect right turn at the intersection of Murray and William Streets, Perth. He again wilfully misled Police by giving a false name. These actions constituted offences under s 49(1)(a) and s 49(2) of the Road Traffic Act, reg 802(1)(b) of the Road Traffic Code and s 97(b) of the Act, respectively.

7 The third offence of driving while disqualified was committed on 14 February 1997 in North Perth. The appellant was involved in an accident in Fitzgerald Street on that date when he failed to notice two vehicles stopped in front of him at a red light at the Vincent Street intersection. He collided with the rear of the first vehicle and pushed it into the rear of the second vehicle. He exchanged details with the other drivers giving them a false name. He failed to report the accident.

8 He subsequently admitted to Police that he had never held a driver's licence and that at the time he was permanently disqualified from holding a driver's licence. These actions involved further offences of: driving while disqualified contrary to s 49(1)(a) and s 49(2); supplying a false name and address after a traffic accident contrary to s 54(1); failing to report a traffic accident under s 55(1); and careless driving contrary to s 62 of the Act.

9 The fourth offence of driving while disqualified was committed on 25 February 1997 in Alexander Drive, Morley. That evening the appellant was driving a Ford Fairmont Sedan south along Alexander Drive. He took his eyes off the road while talking on a mobile telephone and collided with the complainant's vehicle. The complainant's vehicle suffered more than $1000 damage and the complainant was injured. The appellant sped away from the scene and failed to report the accident. In addition to a further conviction of driving while permanently disqualified, he was convicted of dangerous driving causing bodily harm under s 59A(1); failing to stop after the accident contrary to s 54(1); failing to report the accident contrary to s 56(1); and failing to render assistance to the complainant contrary to s 54(6) of the Act.

10 The appellant was also convicted of three offences under the Misuse of Drugs Act 1981 (WA) committed on 1 May 1997, namely, one offence of possessing a smoking implement and two offences of possession of cannabis. In addition, he was convicted of two offences of breach of bail conditions under s 54(1)(A)(ii) of the Bail Act 1982 (WA) and one offence of breach of bail under s 54(1) of that Act. The drug offences were committed while he was on bail.

11 Finally, the appellant was convicted of one offence of being unlawfully on premises on 22 October 1996 contrary to s 66 of the Police Act 1892 (WA).

12 The appellant was sentenced by the learned Magistrate on 22 October 1997 to four cumulative terms of imprisonment each of 12 months in respect of the four offences of driving whilst disqualified. In respect of the offence of dangerous driving causing bodily harm, he was sentenced to imprisonment for four months to be served concurrently. Fines totalling some $3300 were imposed for the other offences. The learned Magistrate declined to make an order for eligibility for parole in respect of any of the terms of imprisonment imposed.

13 By an application incorrectly dated 11 October 1997 and filed on 11 November 1997 the appellant applied for leave to appeal against the total term of imprisonment for four years without eligibility for parole. The proposed grounds of appeal contended that the learned Magistrate erred in making the four terms cumulative; in taking into account a decision of Scott J on an appeal by the appellant in respect of a prior sentence imposed by the learned Magistrate; and in imposing a term of imprisonment which was manifestly excessive in all the circumstances. On 17 April 1998 Templeman J granted the appellant leave to appeal on the single ground that the learned Magistrate erred by making an order that the appellant not be eligible for parole, given the terms of a pre-sentence report that the appellant would benefit from supervision upon release into the community.

14 By a notice of appeal dated 8 May 1998 pursuant to s 189(1) of the Justices Act 1902 (WA) the appellant appealed against the refusal of Templeman J to grant leave to appeal against the whole of the decision of the learned Magistrate on 22 October 1997 by which the appellant was sentenced to the total term of imprisonment of four years without eligibility for parole. The ground of appeal contended that Templeman J erred in law and in fact in confining the appellant's appeal to the issue of parole eligibility. The particulars of this ground are as follows:

"The learned Judge erred in law and in fact in concluding that the total term of four years' imprisonment was not excessive given:

(i) the maximum penalty and the range of penalties imposed for similar offences, both in quantity of offences and type of offences;

(ii) the particular circumstances of the commission of the offences;

(iii) the antecedent and personal circumstances of the appellant;

(iv) the appellant's plea of guilty at the first practicable opportunity;

(v) the appellant's full co-operation with the authorities;

(vi) the magnitude of the pecuniary penalties imposed in addition to the term of four years' imprisonment; and

15 On 15 January 1999, on the application of the appellant, Miller J ordered that the order by Templeman J dated 17 April 1998 be amended so that the grounds of appeal were as follows:

"... the learned Magistrate erred in law and in fact in not making an order that the applicant be made eligible for parole;

(i) The learned Magistrate failed to pay sufficient account to the totality principle in sentencing the applicant;

(ii) The learned Magistrate erred in not giving sufficient weight to the pre-sentence report which quite clearly indicated that the applicant would benefit from supervision upon release into the community;

(iii) The learned Magistrate erred in not giving any weight or sufficient weight to the fact that the applicant had taken steps to rehabilitate himself by ceasing drug dependency;

(iv) The learned Magistrate placed insufficient weight on the applicant's age and his forthcoming marriage."

16 Reasons for the grant of leave to appeal are not normally given but reasons for the refusal of leave to appeal are normally given. The appeal book contains no record of such reasons. Apparently the proceedings were not transcribed and no note appears to have been made by counsel who appeared for the appellant on the application for leave, who was not the same counsel who appeared before this Court on the appeal. It is implicit, however, as counsel for the appellant accepted, that Templeman J must have concluded that the total term of imprisonment for four years was not manifestly excessive.

17 Section 49(1)(a) and s 49(2) of the Road Traffic Act prescribe a maximum penalty of imprisonment for 18 months in respect to a single offence of driving while disqualified. Section 49(1) provides that:

"Subject to subsection (2) and subsection (3) every person who drives a motor vehicle of a class for which he is not the holder of the appropriate, valid driver's licence ... on a road, commits an offence."

18 Section 49(2)(a)(iii) provides that where a person, having been disqualified from holding or obtaining a driver's licence, commits, whilst still legally disentitled to hold a driver's licence, an offence against s 49(1)(a), the offender is liable (as the subsection stood at the relevant time) to a fine of not less than $200 nor more than $1000 or imprisonment for a term not exceeding 12 months, or both. For any subsequent offence of the same nature the offender was liable to a fine of not less than $500 nor more than $2000 or imprisonment for a term not exceeding 18 months, or both.

19 Section 49(3) provides that:

"The court convicting a person of an offence against this section shall, if the offence is committed in any of the circumstances mentioned in subsection (2), disqualify that person from holding or obtaining a driver's licence, appropriate to any class of vehicle whatever, for a period of not less than 9 months and not more than 3 years, as the court thinks fit, and the period of disqualification so imposed shall be cumulative upon any other period of disqualification to which the person may then be subject or upon any period for which the operation of his driver's licence may currently be suspended."

20 When he came before the learned Magistrate for sentence on 22 October 1997 the appellant was aged 26. He had 16 prior convictions for driving without a licence, including 10 convictions for so driving when disqualified. The first of his convictions was in the Children's Court on 27 June 1986 shortly after his 15th birthday. There were four more convictions on 16 May 1988, a conviction on 16 September 1988, and four more convictions on 10 October 1988. There were two more convictions on 30 March 1990, further convictions on 8 May 1990, 8 July 1992 and two further convictions on 27 October 1994. In addition, the appellant had a series of convictions for unauthorised use of a motor vehicle, reckless driving, dangerous driving and breaking and entering, both as a juvenile and as an adult.

21 On 30 March 1990 he was sentenced in the District Court to a total of 15 months' imprisonment on seven counts of breaking and entering. On the same day that he was sentenced to four months' imprisonment cumulative for driving without a licence and three months concurrent for unauthorised use of a motor vehicle. He was imprisoned again on 8 July 1992 following convictions for driving without a licence while disqualified and dangerous driving. On the same day he was convicted in the District Court and sentenced to imprisonment for eight months for attempting to pervert the course of justice, together with concurrent sentences of one month on each of two counts of assault and counts of breach of bail, escaping legal custody, giving a false name, possession of housebreaking implements, possessing a smoking implement, threatening words and being unlawfully on premises.

22 The appellant was convicted on 3 April 1993 of escaping from legal custody and sentenced to four months' imprisonment cumulative. On 9 August 1993 he was convicted of burglary and sentenced to three months' imprisonment.

23 He was sentenced in respect of a further string of offences on 27 October 1994, including the two offences of driving without a licence while disqualified, which I have already mentioned. In addition, he was sentenced for breach of bail, nine counts of fraud, four counts of receiving and three counts of stealing for which he was sentenced to imprisonment for a total of three years.

24 Following a conviction for fraud on 1 February 1995 for which he received a concurrent sentence of three months, the appellant was convicted on 22 May 1995 of two charges of assault to prevent arrest for which he received terms of imprisonment of four months, one of which was cumulative. No order for eligibility for parole was made in respect of any of the sentences imposed on 27 October 1994 or 1 February 1995.

25 The appellant appealed to the Supreme Court against the various sentences of imprisonment then imposed amounting to a total of three years and five months, and also against the failure of the learned Magistrate to order eligibility for parole. The appeal succeeded to the extent that an order for eligibility for parole was made by Parker J in respect of two of the sentences for 12 months which had been ordered to be served cumulatively: Cardillo v Pownall, unreported; SCt of WA; Library No 950625; 23 October 1995. The appellant was released on parole on 17 June 1996 for a parole term expiring on 15 February 1997.

26 It follows that three of the relevant offences with which this Court is now concerned were committed while he was on parole, and the fourth and fifth offences were committed within two weeks after the expiration of the parole period.

27 The learned Magistrate noted that the conviction for driving without a licence while disqualified on 10 October 1996 was the appellant's 11th conviction for an offence under s 49 of the Road Traffic Act under aggravating circumstances. It was also his 17th offence against s 49 overall. The other three convictions for the same offence with which the learned Magistrate had to deal took to 20 his total convictions under s 49.

28 The learned Magistrate took into account that the offences under s 49 were part of a continuing course of conduct. He correctly concluded that in the case of a second or subsequent offence under s 49 there was a need to impose a deterrent penalty where the conduct was a manifestation of a continuing attitude of disobedience to the law: Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465 at 477 per Mason CJ, Brennan, Dawson and Toohey JJ. That case was applied by Murray J in the context of s 49 in Fernando v Keady, unreported; SCt of WA; Library No 940135; 4 March 1994 at 9-10. Murray J also said that in the case of a repeat offender:

"... the primary consideration in respect of penalty ... was deterrence and the primary aspect of deterrence which was relevant was the personal deterrence of the appellant; the need to prevent him from continuing to commit such offences.

The Court must then consider the circumstances relevant to the length of the term of imprisonment to be imposed. I have said that such offences are regarded seriously by the law but there is of course room for the consideration of the particular circumstances surrounding the commission of the offence which will bear upon the Court's reaction to its severity. ... The Court will have regard to the purpose of the driving and whether it was associated with the commission of other offences, or whether indeed there may be some mitigatory aspect to that such as the need, short of a defence of extraordinary emergency, of relatively compelling nature to drive in a situation of extremity. The nature of the driving itself will, I think, be relevant because it may provide a particular illustration of a point that the offender has lost the privilege to drive by reason of the incapacity to obey the traffic laws. The duration of the driving will certainly be relevant. The time when the suspension or disqualification was imposed, how recent it was, what its duration is, will be matters of relevance."

29 The learned Magistrate referred to these authorities. His Worship then detailed the circumstances of the commission of the various offences. So far as the offences of driving without a licence under disqualification are concerned, the learned Magistrate concluded that with respect to each of them a sentence of 12 months' imprisonment was called for. In each case there were aggravating circumstances. In relation to the offence which followed the motor vehicle accident on 25 February 1997 resulting in the conviction for dangerous driving causing bodily harm, the learned Magistrate said:

"I now turn to the two more serious matters which are the driving under disqualification, and I can only say on the facts before me that calls for really a maximum, but I accept that the maximum should be reserved for the worst case of its kind. This matter approached the worst case of its kind, but in my view, a sentence of 12 months would be adequate, and in my view, that should also be cumulative on existing sentences.

I said that, because unless the court makes clear to this young man that whenever he takes the opportunity to drive, he is going to be dealt with severely by the courts upon apprehension, it's clear that he will continue to do so as he has done in the past.

So far as the charge of causing bodily harm to this young lady is concerned, that offence carries only a maximum of six months' imprisonment or a fine, but I don't believe a fine will be appropriate. I impose on that matter a sentence of four months' imprisonment, to be served concurrent (sic), because it's clearly related to the same incident for which he has been sentenced."

30 It was submitted on behalf of the appellant that the total sentence of four years imposed was manifestly excessive and offended the principle of totality. In my opinion, having regard to the appellant's appalling traffic and other criminal record, he was fairly to be regarded as an habitual and defiant offender who deserved to be severely punished, both with a view to his personal deterrence and for the protection of the public. It was relevant that, on the last occasion on which he was driving without a licence while disqualified, he was also convicted of dangerous driving causing bodily harm. In the circumstances, given that the maximum sentence in each case was one of imprisonment for 18 months, the four sentences each of 12 months imposed, looked at individually, could not be regarded as manifestly excessive. The totality principle requires that the overall sentence be proportionate to the degree of criminality involved and, particularly in the case of a youthful offender, that the overall sentence should not be crushing. That is a well accepted principle. In my view, not only was each individual sentence appropriate, the overall sentence was proportionate to the criminality involved. The appellant had demonstrated that, not only does he habitually act in defiance of the law, he is a danger to the public and appears to have adopted criminal behaviour as the basic pattern of his lifestyle.

31 The sentences of four years cumulative were backdated to commence on 24 May 1997. The appellant's earliest release date was 22 January 2000. As a result of the commission of a prison offence the appellant lost 28 days remission, so that his earliest release date became 19 February 2000.

32 At the hearing of the appeal we were provided with an up to date copy of his record which showed that on 18 February 1998 the appellant was convicted in the District Court on five counts of forgery on each of which he was sentenced to imprisonment for 12 months concurrent and five counts of uttering for which he was sentenced to 12 months' imprisonment on each concurrent with each other, but cumulative upon the sentences for the forgery. At the same time the appellant was convicted of reckless driving, stealing a motor vehicle, and two counts of failing to stop when called upon. In respect of the stealing of a motor vehicle he was sentenced to imprisonment for two years concurrent. The total sentence of 2 years without parole extended his earliest release date to 20 June 2001.

33 On 1 May 1998 he was sentenced in the District Court again for stealing a motor vehicle, reckless driving, failing to stop immediately after an accident, failing to render assistance after an accident, driving without a licence while under disqualification and five counts each of forgery and uttering for which he was sentenced for total terms of imprisonment of a further two years concurrent, which included 12 months for driving without a licence. In the meantime, between 5 March and 26 November 1998 the appellant lost a total of 147 days remission as a result of offences committed in prison. This extended his earliest release date to 14 November 2001. Most recently, he was sentenced in the District Court on 28 April 1999 for the offence of grievous bodily harm for which he was sentenced to three years' imprisonment commencing on 28 April 1999 with eligibility for parole. The end result is that he has now total sentences of six years dating from 24 May 1997 without parole, and on 28 April 1999 he was sentenced to three years' imprisonment with eligibility for parole, that sentence being made concurrent to the extent that it was to run from 28 April 1999. Under that sentence he will become eligible for release on parole on 26 April 2000, but as he will not then have served his other sentences his earliest release date remains 14 November 2001.

34 The pre-sentence report before the learned Magistrate suggested that, should a custodial penalty be imposed, the appellant was considered to be likely to benefit from parole supervision. In relation to the offences for which the appellant was convicted on 27 October 1997, in the absence of a parole eligibility order, he would have been eligible for release on 23 May 2001. If an order for eligibility for parole had been made in respect of those offences, the appellant would have been eligible for release on parole in relation to that term on 25 September 1998. However, the appellant was sentenced in the District Court to a further two year cumulative term on 18 February 1998.

35 The learned Magistrate was required to consider whether a parole eligibility order should be made: Thompson v The Queen (1992) 8 WAR 387 at 391 per Malcolm CJ, Pidgeon and Owen JJ. In determining whether it was appropriate to make a parole eligibility order the learned Magistrate was entitled to have regard to the following:

(b) the circumstances of the commission of the offences;

(d) the circumstances relevant to the appellant for which, in the learned Magistrate's opinion, might be relevant to the appellant at the time when the appellant would be eligible for release on parole if an order for eligibility for parole were made; and

36 These are the matters referred to in s 89(2) of the Sentencing Act 1995. An order for eligibility for parole should not be made unless there is something in the materials before the Court which points positively towards the appropriateness of parole: Thompson v The Queen, supra, at 385 per Malcolm CJ, Pidgeon and Owen JJ. Where an offender's antecedents disclose a series of prior convictions for the same or similar offences, this tends to demonstrate that the offender is a poor risk and that an order for eligibility for parole would not be appropriate: Swayne v The Queen (1981) 41 A Crim R 214 at 218 per Malcolm CJ. In this instance it was necessary for the learned Magistrate to make some prognostication of the circumstances which would be applicable at the time when the appellant would become eligible for release on parole. As has been seen, that would have been on 25 September 1998 which was in fact only 11 months after the total sentence of four years was imposed, having regard to the extent to which the sentence itself was backdated. In my opinion, the appellant's consistent course of re-offending and attitude of defiance to the law demonstrated that it was within the scope of the proper exercise of discretion to refuse an order for eligibility for parole. There was simply nothing positive in the materials which would provide a basis for making an order that the appellant be eligible for parole in respect of all or any of the subject sentences.

37 WALLWORK J: I agree with the reasons for judgment of Malcolm CJ except that I would have made an order that the appellant be eligible for parole. As I was in a minority in that regard I will not elaborate on my reasons for adopting that position.

38 ANDERSON J: My reasons for dismissing this appeal against sentence are fully expressed in the reasons of the Chief Justice, which I have had the benefit of reading in draft form. There is nothing I wish to add to those reasons.