Criminal law - Appeal against sentence - Driving under the influence of alcohol - Sentence of 6 months and 1 day's imprisonment - Whether manifestly excessive - Turns on own facts

Road Traffic Act 1974 (WA), s 63

(This judgment was delivered orally and has been edited from the transcript)

1 On 5 March 2013 the appellant, Marta Casotti, was sentenced to imprisonment for 6 months and 1 day for an offence of driving under the influence of alcohol contrary to s 63 of the Road Traffic Act 1974 (WA). She was also permanently disqualified from holding a driver's licence. She now seeks leave to appeal against the sentence of imprisonment.

2 The facts are as follows. At 6.55 pm on Thursday, 18 October 2012 the appellant was driving in Forrestfield. She was very intoxicated and this caused her to drive off the road and into some bushes. Some members of the public saw what happened and went to assist the appellant. They pushed her car into the carpark of a nearby shopping centre. Noticing the appellant's level of intoxication, one of them took her car keys to prevent her driving.

3 The police were called. On arrival, the car keys were handed to the police officers. The appellant demanded them back so she could drive home. A preliminary breath test was administered and the appellant was then taken to the Forrestfield police station, where a breath analysis was conducted. This showed that the appellant's blood alcohol reading, calculated back to the time of driving, was 0.272 grams of alcohol per 100 mls of blood. The appellant denied driving the car. However, she could give no explanation for how the car came to be in the location it was found. She was charged with driving under the influence of alcohol.

4 The appellant first appeared in the Magistrates Court on 13 November 2012. There was an adjournment on that day and again on 8 January 2013, both for the purpose of the appellant obtaining legal advice. The appellant next appeared on 5 March 2013 when she entered a plea of guilty.

5 The facts were not disputed. The appellant accepted by her plea that she had driven the car. She was represented by a lawyer who gave a plea in mitigation on her behalf. It was submitted that the appellant had been at a particularly low point emotionally at the time of the offence. She had been in a serious traffic accident in 2008 when someone had driven her off the road. This had resulted in a badly injured knee and posttraumatic stress disorder. There had been impact on her employment as a result.

6 In August to September 2012 the appellant had gone through a difficult separation from her partner. This had caused her to feel low around the time of the offence. She had gone to a friend's house and got extremely drunk before attempting to drive home. She was on her way home when she had driven off the road in Forrestfield.

7 It was also submitted that the appellant had suffered a serious fall sometime prior to the offence. The fall had occurred due to the previous injury to her knee. In the fall she had broken a number of ribs and perforated an eardrum.

8 The appellant accepted that on a few occasions in the past, including this one, she had resorted to binge drinking. She recognised that this was a problem and had commenced counselling at Holyoake. By the time of sentencing she had attended five sessions and had been attending weekly sessions after initially being placed on a waiting list. She had voluntarily abstained from drinking after the offence.

9 The appellant was aged 45, was single and unemployed at the time she came to be sentenced. She had previously worked as a truck driver and a labourer, but the accident in 2008 had affected her ability to work. More recently she had been taking steps to retrain herself. There was a possibility of yard work that her sister had told her about at the time she came to be sentenced.

10 It was accepted that the alcohol reading was very high and that the offence was serious. However, it was submitted that having regard to the plea of guilty and the efforts to address her alcohol problems, a penalty other than one of immediate imprisonment was appropriate. Reference was made to the appellant's prior record. It was submitted that it was relevant that there were long gaps without offending and that the last offence was in 2008.

11 The prosecutor submitted that the reading was very high and that the appellant had presented a danger to herself and other road users. It was said that the fact that there was not a more serious accident was fortunate. It was said that the appellant had not learned a lesson from previous penalties and that imprisonment was the only appropriate option.

12 The magistrate proceeded to sentence immediately following the sentencing submissions. His Honour said:

Your record doesn't assist you at all. You've got a prior conviction for driving under the influence in 2008, which is your second. Conviction for refusing breath test in 1998. Conviction for excess 08 in 1997. It would have been hoped that by this stage you would have learnt to not drink and drive. But here you are committing this very serious offence.

It's serious because of the extraordinary high reading. The fact that it occurred in an area that was likely to be populated by other people on the road, driving, or around the road. Resulted in a traffic accident, a single car accident, fortunately, and very fortunate indeed that neither you nor anyone else were seriously injured or killed as a result of your decision to get in the car on this occasion.

I note that didn't happen but it was a very really (sic) potential in all of the circumstances. Your record isn't an aggravating factor because you have been punished for those matters previously, but it does indicate the need now for a penalty that's going to be of particular personal deterrence upon you to insure you don't keep offending like this again, and putting the community at continued risk.

Also, it demands a penalty that's going to send a clear message to the community that repeat drink driving of a serious nature will not be tolerated by this court. It happens all too frequently and all too frequently leads to car accidents, serious injury and death on our streets. I note that at the time you showed no remorse whatsoever, demanding your keys back and offering no cooperation with police. That's no doubt more a measure of your very high reading though, than anything else.

I note your early plea of guilty, and that needs to be taken into account, but it has to be said it's a plea of guilty in the face of inevitable conviction, given the circumstances you were stopped under. But in respect to that there will be a discount on the penalty I impose. The appropriate one in the circumstances, in my view, being 15 per cent.

I note the steps you have taken to seek help from Holyoake, and you are to be commended for that. Your commitment not to drink. I also note you are not employed at the moment. You are looking at retraining and, with possible labouring work becoming available.

In all the circumstances, Ms Casotti, in my view the only appropriate penalty for this offence, because of its seriousness, because of the need for personal deterrence and general deterrence, is a term of imprisonment. I am just not persuaded in all the circumstances that that sentence should be suspended, turning my mind to all the matters raised by counsel.

There will now be a term of six months and one day's imprisonment to be served immediately. No order to costs and life disqualification of your licence (ts 2 - 3).

(1) the learned magistrate failed to give appropriate weight to the appellant's plea of guilty;

(2) the learned magistrate failed to give appropriate weight to the appellant's steps towards rehabilitation when imposing a sentence of immediate imprisonment;

(3) the sentence was manifestly excessive taking into account the maximum penalty, the circumstances of the offence, the personal circumstances of the appellant and sentences customarily imposed for offences of this type.

14 The appeal notice was filed on 3 April 2013. That was one day late and an extension is required. The delay is very short and has been explained. An extension will therefore be granted.

15 I will deal with ground 3 first. For reasons I will explain later, grounds 1 and 2 are not proper grounds and the matters referred to in them are only relevant as aspects of ground 3.

Ground 3 - Was the sentence manifestly excessive?

16 A ground of appeal which alleges that a sentence is manifestly excessive asserts the existence of an implicit error (see Royer v The State of Western Australia [2009] WASCA 139; (2009) 197 A Crim R 319 [127] (Buss JA); Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 [6] (Gleeson CJ and Hayne J). A claim of manifest excess depends upon establishing implied error in the type or length of sentence imposed. The implied error that must be established is that a sentence of the nature or length imposed could not have been reached in the exercise of proper sentencing discretion.

17 In order to determine if a sentence if manifestly excessive it is necessary to view it in light of the maximum penalty prescribed by law for the offence, the standard of sentencing customarily observed for that type of offence, the level of seriousness of the circumstances of the offending and the personal circumstances of the offender (see Chan (1989) 38 A Crim R 337, 342 (Malcolm CJ).

18 The maximum penalty for an offence of this type varies depending on whether the offence is a first, second, third or subsequent offence. In determining whether there are relevant previous offences, it is necessary to take into account other offences which are deemed to be previous offences for this purpose: See s 63(3) of the Road Traffic Act.

19 In this case the appellant had two relevant previous offences: an offence of driving under the influence of alcohol, contrary to s 63(1), committed on 23 February 2008, and an offence of refusing a breath test, contrary to s 67(1), committed on 18 July 2008. Accordingly the present offence was a third offence for the purposes of s 63 and attracted a maximum penalty of a $5,000 fine or imprisonment for up to 18 months.

20 As regards the standard of sentences customarily observed for offences of this type, a range is difficult to discern. In Patterson v Cutler [2010] WASC 316, Simmonds J referred to 11 cases in which sentences of between 4 months immediate imprisonment and 12 months immediate imprisonment had been imposed where there were multiple prior offences. I do not understand this to mean that third offences do not ever attract noncustodial sentences. Furthermore, one of the difficulties in discerning a range is that driving under the influence of alcohol offences are frequently dealt with in the context of other offences such as driving whilst suspended or driving an unregistered vehicle.

21 In Patterson v Cutler the circumstances were that the appellant was driving while subject to a licence suspension and was driving an unlicensed vehicle. The appellant in that case had five previous convictions for driving under the influence of alcohol and four previous convictions for driving with a blood alcohol reading in excess of 0.08%. The appellant in that case also had seven previous convictions for driving whilst under suspension. The sentence of 8 months' imprisonment for driving under the influence of alcohol was varied on appeal by being conditionally suspended for 24 months.

22 In Logan v Kuser [2008] WASC 65 the appellant was also charged with driving whilst under a licence suspension and was also exceeding the speed limit. The appellant in that case had two previous offences for driving under the influence of alcohol. A term of 9 months' immediate imprisonment was reduced on appeal to 7 months conditionally suspended for 12 months.

23 In Anderson v Little [2009] WASC 143 the appellant was under a life suspension at the time of driving. That appellant was driving without tail lights and had three previous convictions for driving under the influence of alcohol in the previous 20 years, and other convictions prior to that. The appellant in that case had previously been imprisoned for driving under the influence of alcohol. On appeal, a term of 12 months' imprisonment for driving under the influence of alcohol was reduced to 7 months' imprisonment.

24 Insofar as sentences imposed in other cases are indicative of the types and lengths of sentences customarily imposed, a sentence of 6 months and 1 day would not in itself appear to be necessarily indicative of error. Such a sentence would ordinarily fall within the range of sentences appropriate for a third offence of this type. However, even where a range can be discerned, it is only one factor to be considered. The fact that a sentence is within the range may indicate that the sentence is not manifestly excessive, but it is not conclusive of that question. There is always the possibility of an offence which calls for a sentence outside the usual range. This is because the particular circumstances in which the offence was committed and the personal circumstances of the offender will always be a relevant consideration: See Holding v Parkin [2012] WASC 113 [25].

25 As regards the particular circumstances of this offence, it must be accepted that the blood alcohol reading was a high one. Because that reading was above 0.15 grams of alcohol per 100 mls, the appellant was deemed to be incapable of having proper control of her vehicle: See s 63(5) of the Road Traffic Act. Generally speaking, it is because a person has a reading over 0.15 grams per 100 mls that they are charged under s 63. Lack of capability to drive by reason of the influence of alcohol could be proved in other circumstances, but this is rare. Thus a reading of in excess of 0.15 grams per 100 mls is generally typical of offences under s 63. Of course, the reading here was significantly higher than 0.15 grams per 100 mls.

26 The danger that drivers with such high levels of intoxication pose to themselves and other road users cannot be denied. A car in the hands of a drunk driver is an unpredictable and potentially lethal machine. The magistrate was correct to view the offence as serious and to stress the importance of deterrence. However, offences of driving under the influence of alcohol do not always attract imprisonment. Such a sentence is not even open for a first offence, for which only fines are provided.

27 The reason why a sentence of imprisonment was open here was because the appellant had committed relevant prior offences. Clearly the legislature intended that repeat offenders would be liable to be treated more harshly. One reason for this must be that persistent offending shows a general disregard for the law and a resistance to the deterrent effect of previous penalties.

28 In considering whether an offender is a persistent and intractable offender, it is relevant to consider not only the number of prior offences but the spread and time period over which they have occurred. Generally an offender who reoffends within a short time is likely to be viewed more seriously than one who reoffends after many years. It may be difficult to view the former as anything other than an intransigent offender who is acting in defiance of the law, but an offender who has spent many years without further offending will usually be viewed as deserving of some credit, despite their subsequent relapse. This is because lapse of time and an infrequency of offending conduct may indicate that the behaviour is out of character and that the offender is unlikely to repeat it.

29 In this case, the appellant had a poor driving record but many of the offences were of a minor nature and had attracted small fines. Furthermore, there had been long periods without any offending at all. Of particular relevance, there had been an offence of driving with a blood alcohol content of above 0.08 per cent in December 1997, for which the appellant had been fined $300 and disqualified from driving for 3 months. There had also been the offence of refusing a breath test in July 1998, for which she was fined $800 and disqualified for 3 months, and the driving under the influence of alcohol offence in February 2008, for which she was fined $1,500 and disqualified for 2 years.

30 There was no offending of any type between 24 December 1998 and 23 February 2008; that is for over 9 years. Nor had there been any other offending after 2008 until the present offence; that is for over 4½ years. These long periods without any offending suggested that the appellant was capable of acting in a lawabiding way and of complying with the traffic laws. They do not suggest that she was a person who acted in contemptuous defiance of the law or who was incapable of responding to deterrent penalties. They also tended to lend support to the claim made in mitigation that this offence was an aberration borne out of a particular time of personal crisis rather than being her normal behaviour. This was relevant both to her level of culpability and to the need for personal deterrence.

31 There were, of course, other mitigating factors. The fact that the appellant entered a plea of guilty at a relatively early stage was an important consideration It demonstrated acceptance of responsibility and was accompanied by an expression of remorse. The effort to engage with counselling was also important as showing a willingness to address the cause of the offending and to effect change. This was relevant to any consideration of the risk of reoffending. A sentence that reinforced this effort would have served the appellant's interests as well as those of the community.

32 Whilst the magistrate made no express error in his Honour's sentencing remarks, it is difficult to understand how a sentence of immediate imprisonment could have been reached taking into account all of the relevant considerations. This was a case where options other than immediate imprisonment were clearly both open and appropriate. In those circumstances a sentence of imprisonment to be served should not have been imposed.

33 I am fortified in that conclusion by the fact that the sentence was one of six months and one day. As I said in Hamlett v Whitney [2013] WASC 100, whenever a sentence of six months and one day is imposed, it raises a suspicion that the sentence has been increased beyond what would otherwise have been imposed to avoid the prohibition on terms of 6 months or less contained in s 86 of the Sentencing Act 1995 (WA). Such a sentence suggests that the magistrate may have inappropriately adjusted the sentence upwards. But suspicion alone is not enough; it must be established that there was either an express or implied error. Error can be implied where a sentence is shown to be manifestly excessive. That is the case here. For those reasons, ground 3 must succeed.

34 As to grounds 1 and 2, given the success of ground 3 it is strictly unnecessary to consider those grounds. However, I will do so for the sake of completeness. Each of those grounds asserts that the magistrate failed to appropriately give weight to relevant factors.

35 As the Court of Appeal has said on many occasions, a failure to give adequate weight or pay sufficient regard to a relevant sentencing consideration only gives rise to appellable error if it amounts to a failure to exercise the discretion entrusted to the court: See Vagh v The State of Western Australia [2007] WASCA 17 [76], and Morcom v The State of Western Australia [2013] WASCA 31 [33]. In the absence of a failure to exercise discretion, a weighting error is not an independent ground which justifies appellate intervention. It is a conclusion that is implicit in a finding that a sentence is manifestly excessive: See Trompler v The State of Western Australia [2008] WASCA 265 [32].

36 Leave to appeal will be granted in respect of ground 3. The appeal will be allowed and the sentence set aside. This requires that I now resentence the appellant.

37 A suspended sentence may well have been appropriate at first instance, but it is not possible now. That is because a suspended sentence should not be imposed which is of a length greater than would be appropriate if the sentence were ordered to be immediately served: See s 76(2) of the Sentencing Act and see also Zinga v Johnson [2012] WASC 216.

38 A suspended sentence of 6 months and 1 day would be inappropriate now as it would not take into account time already spent in custody. A suspended sentence of 6 months or less for a single stand alone offence is prohibited: See s 86 of the Sentencing Act.

39 The appellant has now spent 7 weeks in prison. That time has, no doubt, had a salutary effect upon her. Any sentence now imposed needs to take that time into account. It would also be appropriate to impose a sentence that facilitates rehabilitation, the need for punishment having already been substantially achieved by the time spent in prison. I also note that the appellant has now been permanently disqualified from holding a driver's licence. That was a mandatory penalty pursuant to s 63(2)(c) of the Road Traffic Act and is unaffected by this appeal. That disqualification, in addition to being a penalty, acts as a means of ensuring that the community is protected from the risk of any future driving offences by the appellant.

40 The options provided by s 63 are a fine of between $2,100 and $5,000 or imprisonment of up to 18 months. Section 43(2)(a) of the Sentencing Act provides that other options are also open, they being the options in s 39(2) listed after s 39(2)(c). These include a community based order, an intensive supervision order or suspended imprisonment. Section 106(4) of the Road Traffic Act provides that where a person is sentenced to a community based order or intensive supervision order for a second or subsequent offence under s 63, the court must impose at least a community service requirement as a primary requirement of the order.

41 An intensive supervision order cannot be imposed unless the court has received a presentence report: See s 68 of the Sentencing Act. There has been no presentence report in respect of the appellant. A presentence report is optional for a community based order. In my view, either an intensive supervision order or a suspended sentence would have been appropriate at first instance. However, having regard to the time spent in custody a community based order is now appropriate. This should not be viewed as indicating the sentence that an offence of this nature would ordinarily attract. I intend to impose it now only because the appellant has spent 7 weeks in custody.

42 The appellant will be resentenced to a community based order of 6 months commencing today. That community based order will include a programme requirement pursuant to s 66. This will require the appellant to obey the orders of a Community Corrections Officer, including to continue with appropriate treatment in relation to the abuse of alcohol. Thus that will no longer be a voluntary matter for the appellant, and failure to comply will be a breach of the community based order that may result in her being brought back before this court for resentencing.

43 The community based order will also include a supervision requirement. That will require contact with a Community Corrections Officer as ordered, but at least once every 8 weeks. There will also be a community service requirement. That requirement will be that the appellant undertake 20 hours of community service work.