File No : RO 4004 of 2008, RO 5139 of 2008, RO 6360 of 2008, RO 6363 of 2008

Road traffic - Driving under suspension - Sentence of imprisonment - No new principles

Respondents : State Solicitor for Western Australia

1 McKECHNIE J: The appellant applied for an extension of time within which to appeal, for leave to appeal and a grant of bail pending appeal. When this matter was referred to me I directed that all the matters be heard and argued at the one time.

2 The appellant was convicted on 15 May 2008 and lodged the application on 3 June 2008, within time, but without prosecution notices and transcript which took some time to be sent to the court. I am not sure that the appellant requires an extension of time but if leave to appeal is made out an extension of time should be granted.

3 The appellant pleaded guilty to 12 offences under the Road Traffic Act 1974 (WA) or the Road Traffic (Vehicle Standards) Regulations 2002 (WA). Included in the 12 offences were four offences of driving under suspension. The appellant was sentenced to a term of 4 months' imprisonment on each charge. The sentence on one charge was made concurrent with another but otherwise the sentences were directed to take effect cumulatively so that the total sentence imposed was one of 12 months' imprisonment. The Magistrate made a parole eligibility order.

4 It is necessary to say a little about each offence and the timing of them. The appellant had seven prior convictions for driving whilst under fines suspension without a licence, his licence having been suspended due to unpaid fines. He had two prior convictions for driving whist legally disentitled. In early February 2008 the appellant endorsed a plea of guilty to a charge of driving while under suspension. His licence was suspended on 8 February 2008 for a period of 3 months.

5 The first offence of driving under suspension relevant to this application occurred on 20 February 2008; therefore at a time when the appellant should have been well aware that he was under suspension. The next two offences occurred both on 19 March 2008. At about 1.50 pm the appellant's vehicle was stopped, found to be in an unroadworthy condition and he to be driving under suspension. He was directed to park his car at a nearby service station which he did. Ten minutes later he was captured on the surveillance camera driving the vehicle away. These were the offences for which imprisonment was ordered to be served concurrently. On the fourth occasion the appellant was stopped on 8 April 2008 at 8.30 am. He said that he had been taking his daughter to school because it was raining.

6 Before passing sentence the magistrate took time for consideration. He noted the matters which he had to note under the Sentencing Act 1995 (WA) s 6(2), and then said:

In terms of the circumstances, firstly and in the obvious observation by this Court is that Mr Challis, notwithstanding that he was under a three-month disqualification from driving or a suspension of his licence made on 8 February 2008, he drives. He drives some 12 days after that conviction. He then drives again on 19 March 2008 but on that occasion he drives twice, a gap of literally minutes after being stopped and dealt with by police.

To exacerbate this situation he then drives on a third occasion, or in fact it is a fourth occasion as there are now four offences.

7 The Magistrate was unable to find mitigating factors apart from the pleas of guilty and continued:

I am told of his personal circumstances and he has some issues concerning relationships and children.

8 The Magistrate noted that the appellant had had one previous suspended sentence of imprisonment. He referred to decisions of this Court, with respect, correctly, when he said:

[W]here there is a record of prior convictions, and in particular for driving under the influence or, in this case driving under suspension, the defiance of the law which those offences demonstrate indicate and ordinarily require a sentence or sentences to have deterrent or a strong general deterrent aspect to it.

9 The appellant applies for leave on three grounds of appeal.

10 I will deal with the grounds of application for leave to appeal in reverse order.

Magistrate didn't consider a suspended term of imprisonment.

11 The Magistrate clearly did consider, but rejected, a suspended term of imprisonment. Having regard to the circumstances of the repeated driving in defiance of the law over a short space of time, and the need for general deterrence, I am not persuaded that there are any reasonable prospects of success in respect of this ground and leave to appeal is therefore refused.

Magistrate didn't consider that the accused was a single parent and would have no one to look after her [his daughter].

12 The family circumstances of the appellant were outlined by counsel on his behalf before the Magistrate. The appellant has two children: a 12-year-old daughter who lives with her mother, but the six-year-old daughter has been in the appellant's care since 2005. He stopped employment and became a single father on a sole parent pension.

13 Counsel mentioned that the daughter would come under the care of the Department of Community Services because there was nobody immediately available to care for her. In fact, as appears in the letter written to the Court by the appellant, and received on 21 July 2008, the appellant wrote:

Since being in prison I have arranged for my daughter to stay with my father. To be able to take care for my daughter in this immediate time, my father is having to put off a serious throat operation which is not good for his standard of health or life and this will inadvertently affect my daughter also.

14 This morning the appellant has expanded on the difficulties, which I accept are real difficulties, that his absence in prison is having, both on his parents and on his young daughter.

15 In the State of Western Australia v Skaines [2006] WASCA 160 Roberts-Smith JA, with whom McLure and Buss JJA agreed, stated:

The general principle which must be accepted is that a sentencing Court should have no regard to the impact of a sentence of imprisonment will have upon members of the prisoner's family although this is not an absolute principle and may be departed from in extreme cases.

16 There is nothing in the present case which would place it in the 'extreme' category or even in an 'unusual' category. The blunt fact is that the appellant could have avoided the consequences to his daughter by the simple expedient of not persistently driving while under suspension. The circumstances of his daughter are regrettable but are not within the category which would allow interference in that respect. Although I consider that there are reasonable prospects of success so that leave should be granted that ground is nevertheless dismissed.

17 There is no error of logic in the accumulation of the sentences in respect of each offence. However, the Magistrate does not appear to have mentioned the total effect of a sentence of 12 months having regard to the overall criminality displayed. Many decisions in this court disclose a range of sentences for repeated offences of driving under suspension. The respondent in very helpful submissions submits there is a level of inconsistency concerning the appropriate total sentence where a number of driving under suspension offences are being dealt with together.

18 Total offences ranging from nine months to 20 months have been imposed - sufficient only to refer to Mason v Morrison [2004] WASCA 181; Anderson v Stilwell [2006] WASC 257; McDonald v White [2007] WASCA 213; Moody v French [2008] WASCA 67.

19 The four offences were spread over a seven-week period. They were accompanied by some aggravating factors, as the Magistrate noted, due to the unroadworthiness of the vehicle but they were not aggravated by intoxication or manner of driving as is often the case. The Magistrate correctly made the offences that occurred on 19 March 2008 the subject of concurrent terms. They were in practical terms almost one continuous act of driving.

20 There have been two fines suspension offences in the decade following the 6 month term of suspended imprisonment imposed in December 1998. The appellant has not previously been sentenced to a term of imprisonment. Taking all those matters into consideration, ground 1 has been made out. The Magistrate erred in sufficiently failing to take into account the impact of the total sentence of 12 months having regard to the totality of the criminal conduct disclosed, the lack of significant aggravating circumstances and the range of sentences commonly imposed for like offences.

21 I grant leave to appeal and allow the appeal on ground 1. I vary the sentences imposed, by ordering that the sentence for the offence committed on 8 April 2008 be served concurrently with the sentences for the offences occurring on 19 March 2008 but cumulatively on the sentence for the offence occurring on 20 February 2008. This makes a total sentence of 8 months' imprisonment.