CROCKER -v- VINICOMBE [2019] WASC 416 (14 November 2019)

(1) The sentence took into account the [appellant's] prior drink driving convictions exceeding 20 years from the date of the offence;

(2) Western Australian drink driving penalties show a second 0.07% conviction (within 20 years of the first conviction) should result in a mandatory minimum period of 8 months disqualification from driving;[8] and

(3) [The] magistrate's discretion in sentencing was harshly unfair due to the sentence imposed being a 50% increase in the stated penalty for a second 0.07% drink driving offence.

1. It will be observed that the grounds referred to 'the sentence' and 'sentencing'. Although the respondent acknowledged the legal position that a licence disqualification is not part of the sentence, both parties used the terms 'sentence' and 'sentencing discretion' during the hearing as a convenient shorthand description of the order and the discretion exercised in making the order. It is consistent with the dictionary definition of 'sentence' as 'the determination by the court of the penalty to be imposed on a convicted person'.[9] Nothing turns on the distinction between 'order' and 'sentence' in the context of this appeal.
2. Section 8 of the Criminal Appeals Act provides the grounds on which an appeal may be made from a decision of the Magistrates Court. Relevant to these proceedings, it provides that an appeal may be made on the ground that the magistrate made an error of law or fact, or both law and fact,[10] or imposed a sentence that was excessive,[11] or that there has been a miscarriage of justice.[12]
3. While the appellant's grounds of appeal are not in the terms specified in s 8 of the Criminal Appeals Act, the nature of each ground can be discerned from the circumstances of the case. As the Court of Appeal said in Samuels v The State of Western Australia, the consideration of the merits of a proposed ground of appeal, when leave is being considered, 'will be confined to the ground of appeal as particularised - but it must, of course, always be a full consideration of that which is advanced in the appellant's case in support of the application.'[13]
4. In essence, the allegation in ground 1 is that the magistrate wrongly took into account the appellant's prior drink driving convictions that were more than 20 years old, and, as a result, determined the period of disqualification on the basis that the appellant had more than one prior relevant drink driving conviction and, therefore, applied a higher mandatory minimum disqualification period than was correct for the appellant's circumstances. The correct mandatory minimum disqualification period was that provided for a second conviction where the reading is 0.07% or higher, namely 8 months (ground 2). Ground 1 therefore alleges an error of law, or of law and fact. Ground 2, as amended, does not allege a separate error, but purports to stipulate the correct legal position for the purposes of ground 1.
5. The essence of ground 3 is that the magistrate imposed a period of disqualification that was excessive, and therefore that he erred in the exercise of discretion.[14] There is no specific ground in s 8 of the Criminal Appeals Act that deals with an allegation that an order (rather than a sentence) imposed after conviction was excessive. However, an allegation that a period of disqualification is excessive to the extent that it manifests an error in the exercise of the court's discretion, amounts to an allegation that the court at first instance has made an error of law, alternatively that there has been a miscarriage of justice,[15] both of which are grounds of appeal under s 8.
6. The respondent conceded that ground 1 was established. However, he contended that, notwithstanding the error, the period of disqualification that was imposed was within the range of a sound discretionary judgment, and that no substantial miscarriage of justice had occurred (the proviso). For reasons which follow, the concession was properly made. However, I was not satisfied that this was a case in which the proviso should be applied. Accordingly, at the conclusion of the hearing, I granted leave to appeal in respect of grounds 1 and 2 and allowed the appeal on those grounds. Although I also granted leave to appeal on ground 3, for reasons I will explain below, it was not necessary to determine that ground, as it was necessary to re‑sentence the appellant in respect of the disqualification in light of the decision on grounds 1 and 2.
7. At the time I gave my decision, I said I would publish reasons for my decision and the re-sentencing in due course. These are my reasons.

1. The determination of the first issue in this appeal is governed by the application of s 64AA of the RTA and s 107 of the Road Traffic (Administration) Act 2008 (WA) (the RTAA).
2. Section 64AA of the RTA provides, relevantly:

64AA. Driving with blood alcohol content of or above 0.05

(1) A person who drives or attempts to drive a motor vehicle while having a blood alcohol content of or above 0.05 g of alcohol per 100 ml of blood commits an offence.

(2) If a court convicts a person of a first offence against this section the person is liable to a fine of not more than 10 PU.

(2a) If a court convicts a person of a second or subsequent offence against this section -

(a) the person is liable to the relevant penalty in the Table to this subsection; and

(b) the court shall order that the person be disqualified from holding or obtaining a driver's licence for not less than the relevant minimum period of disqualification in the Table to this subsection.

(2b) For the purposes of this section, an offence is a second or subsequent offence against this section irrespective of the blood alcohol content on the occasion of the commission of any previous offence against this section.

(2c) For the purposes of this section, where a person is convicted of an offence against this section any offence previously committed by the person against section 63, 64, 64A or 67 shall be taken into account and be deemed to have been an offence against this section (but not to the exclusion of any other previous offence against this section) in determining whether that first‑mentioned offence is a first, second or subsequent offence.

1. In the Table under s 64AA(2a), 'Disq' is an abbreviation for 'minimum period of disqualification'.[16] 'PU' is an abbreviation for 'penalty units'.[17] Section 7(b) of the RTAA provides that 'a reference to a number of PU is a reference to an amount (in dollars) that is that number multiplied by 50'. Therefore, the penalty provided by s 64AA(2) for a first offence under that section is a fine of $500. For a second or subsequent offence, the penalty is a fine of not less than $500 and up to a maximum of $1,000, and the disqualification referred to in subsection (2a). If the blood alcohol content is equal to or greater than 0.07%, then for a second offence the court must disqualify the offender from holding or obtaining a driver's licence for not less than 8 months (the relevant minimum period in the Table). For a subsequent offence (i.e. subsequent to a second offence), the disqualification must be for not less than 10 months (the relevant minimum period in the table).
2. Section 107 of the RTAA provides:
   1. Limitation on period for which previous offences taken into account

(a) a person is convicted of an offence under a road law (the present offence); and

(b) the penalty or penalties which may or are required to be imposed for the present offence vary according to whether the person has been convicted previously of an offence under a road law, any previous offence the conviction for which was recorded more than 20 years before the commission of the present offence is not to be taken into account in determining the penalty or penalties to be imposed for the present offence.

1. 'Road law' is defined in s 4 of the RTAA to include the RTA.
2. 'Penalty' is not defined in the RTAA or the RTA, but s 5 of the Interpretation Act 1984 (WA) (Interpretation Act) provides that in that Act and every other written law,[18] which includes the RTAA and RTA, 'penalty' means 'a fine, imprisonment, or other form of punishment, including the suspension or cancellation of a licence, registration or permit and disqualification from obtaining a licence, registration or permit' (emphasis added). Where a person already holds a driver's licence and is disqualified from holding a licence for a certain period, the effect of such an order is to suspend the operation of his licence. In other words, it is a suspension, and therefore a 'penalty' as defined in the Interpretation Act.
3. Further, s 7 of the RTAA, which explains, inter alia, that the abbreviation 'Disq', which is used in s 64AA of the RTA, is for 'minimum period of disqualification', states that the abbreviations are used in 'provisions of a road law dealing with penalties for offences'.
4. It follows that the reference to 'penalty or penalties' in s 107 of the RTAA includes an order under s 64AA of the RTA disqualifying a person from holding or obtaining a driver's licence.
5. Although the wording of s 64AA(2a) of the RTA appears to differentiate between 'relevant penalty' in paragraph (a) and the disqualification required to be imposed under paragraph (b), and appears to confine the words 'relevant penalty' to the monetary penalties (or fines) in the Table, there is nothing in the context of the provision that would suggest the legislature intended to deprive a disqualification under s 64AA of the characteristic of being a 'penalty' for the purposes of s 107 of the RTAA. On the contrary, the recognition in s 7 of the RTAA that a minimum disqualification is part of the 'penalties for offences', provides support for reading 'relevant penalty' to mean 'relevant monetary penalty, without affecting the application of s 107 of the RTAA to the whole of the scheme of penalties under s 64AA(2a) (including the Table under that section). The reference to 'penalty or penalties' in s 107 recognises that more than one kind of penalty might be required to be imposed. In addition, the Explanatory Memorandum for the Bill that introduced s 107 of the RTAA, as a replacement for s 105 of the RTA in its then current form tends to confirm that s 107 was intended for the whole of the sentencing process, not just the imposition of fines. It reads:[19]

This clause replicates the substance of section 105 Road Traffic Act 1974, which will be repealed with the proclamation of this Act and outlines time for which offences can be taken into account for sentencing purposes.

1. There does not appear to be any sound reason for excluding, from the application of s 107, a disqualification from holding or obtaining a driver's licence, which otherwise, in accordance with the Interpretation Act, is a 'penalty'. Graduated minimum penalties that depend on an accumulation of previous convictions are intended to reflect the need for personal deterrence, in light of an offender's recidivism. Section 107 is legislative recognition that beyond a certain point in time (albeit arbitrarily determined) a conviction should no longer be regarded as evidence of recidivism that justifies a greater minimum penalty (although, as will appear below, it may still be relevant as part of the offender's antecedents in a general way). There is no obvious reason why the relief afforded to the offender by s 107 should not apply to the minimum disqualification to which he is liable.
2. The respondent's concession in this case recognises, correctly in my view, that the disqualifications in s 64AA of the RTA are 'penalties' for the purposes of s 107 of the RTAA.
3. As the disqualifications that are required to be imposed under s 64AA(2a) vary according to whether the offender has been convicted previously of an offence under that section or under one of the sections referred to in subsection (2c) (i.e. according to whether the offence is a second or subsequent offence), s 107 of the RTAA applies, so that any conviction recorded more than 20 years before the offence for which the offender is being sentenced cannot be taken into account in determining whether the latter offence is a second or subsequent offence.

1. The offence of which the appellant was convicted was committed on 15 February 2019 in Collie. As will appear from the transcript of the proceedings, reproduced below, apart from the time and locality (namely, the town) at which the offence was committed, the only other facts stated were in relation to the blood alcohol reading from the breath test. At the appeal hearing, the respondent's submissions referred more specifically to the street location. Although it did not provide any further enlightenment as to the circumstances of the offending, I have disregarded that additional information, as it is necessary to determine the appeal on the facts stated to the magistrate.
2. The appellant was driving his vehicle at 11.03 am, when he was stopped for a breath test. His blood alcohol reading was calculated to be 0.072% at the relevant time. As a result of that test the appellant was charged with one count of driving with a blood alcohol content exceeding 0.05%, contrary to s 64AA(1) of the RTA.[20]

1. The appellant endorsed a plea of guilty on his summons and did not appear at the sentencing hearing on 20 March 2019. As he had endorsed a plea of guilty, the sentence was imposed in his absence. The proceedings were brief. Having said that he had an endorsed plea of guilty before him, the learned magistrate said he would hear the facts. It is appropriate to reproduce the whole of the relevant part of the transcript after that:[21]

PROSECUTOR: Thank you, sir. Good morning, and I shall hand up a history. There are priors, sir. Facts on this one. 11.03, 15 February, he's driving a Toyota. Stopped by police in Collie. Breath test was taken, 0.079. Calculated at 0.072. He was subsequently charged, your Honour. Costs of $205.30. Thank you, sir.

HIS HONOUR: On my calculation, it's a fourth, but there is another which doesn't count in terms of deciding which number it is, being 87 was an 0.08.

PROSECUTOR: Yes, sir, Yes.

HIS HONOUR: So there is that prior as well to have regard to, even though it doesn't count as a strike as such.

PROSECUTOR: No, sir.

HIS HONOUR: Fine of $800. Costs of $205.30 and disqualified for 12 months.

1. It is accepted by the respondent that, in stating, 'it's a fourth', the magistrate was indicating that, on his calculation, the conviction was the appellant's fourth conviction for the purposes of the mandatory disqualification provisions under s 64AA(2a). That is sufficiently clear from the fact that his Honour went on to say that there was another conviction in 1987 which did not 'count in terms of deciding which number it is' or 'as a strike as such'. It is also accepted by the respondent, on the basis of his Honour's comments, that, although he excluded the 1987 conviction from the determination of whether the present offence was a second or subsequent strike, the magistrate took that conviction into account as part of the appellant's antecedents in the general exercise of his discretion.
2. The magistrate did not state the minimum penalty upon which he was relying. However, given that his Honour clearly addressed his mind to the application of s 64AA(2a) of the RTA, the only reasonable conclusion is that the magistrate proceeded on the basis that the appellant was liable to the penalty for a 'subsequent offence' in the Table for a blood alcohol content of equal to or greater than 0.07%. In other words, his Honour proceeded from the basis that the minimum disqualification period was 10 months. That is conceded by the respondent.
3. It is also tolerably clear that his Honour was of the view, having regard to the appellant's antecedents, that the offending warranted a period of disqualification greater than the minimum period he believed to be applicable, hence the disqualification for 12 months.

The appellant's record for drink driving offences

1. The appellant's prior convictions for offences that were relevant for the purposes of s 64AA(2a) of the RTA are set out in a document headed 'History for Court - Criminal and Traffic' (commonly referred to as a criminal record), which was before the magistrate and was produced in these proceedings. The record is not in dispute. It shows that, at the time the sentence was imposed, the appellant had four prior convictions for drink driving. The most recent of those was in 2006, when the appellant was convicted of driving while having a blood alcohol content exceeding 0.05%, contrary to s 64AA of the RTA. Prior to that, the appellant was convicted on two occasions of the offence of driving under the influence of alcohol, contrary to s 63 of the RTA, once in 1995 (the 1995 conviction) and once in 1990 (the 1990 conviction). The appellant was also convicted in 1987 for driving while having a blood alcohol content exceeding 0.08, contrary to s 64 of the RTA (1987 conviction).[22] As appears from [16] above, s 64AA(2c) provides that offences under sections 63 and 64 'shall be taken into account and be deemed to have been an offence against this section' for the purposes of determining whether the offence for which the offender is being sentenced is a first, second or subsequent offence.

1. The effect of s 107 of the RTAA was that, in determining whether the offence was a second or subsequent offence, the magistrate could not take into account any previous offence of a relevant kind under s 64AA(2a) and (2c) for which the conviction was recorded before 20 March 1999, being a period of 20 years before the commission of the offence on 20 March 2019.
2. The convictions for all of the drink driving offences of which the appellant had previously been convicted, other than the offence in 2006, were recorded well before 20 March 1999. Therefore, the only previous offence that could be taken into account for the purposes of s 64AA(2a) was the offence of driving while having a blood alcohol content exceeding 0.05%, of which the appellant was convicted in 2006. That meant that the offence for which he was being sentenced was to be regarded as a second offence, not a 'subsequent offence', and the relevant minimum period of disqualification was 8 months, not 10 months.

1. It follows that the learned magistrate erred in proceeding on the basis that the offence for which he was sentencing the appellant was 'a fourth offence' for the purposes of s 64AA(2a), and necessarily that the minimum period of disqualification was 10 months. The error would appear to be one of mixed law and fact. His Honour was clearly mindful of the application of s 107 of the RTAA, as he specifically excluded from consideration, in determining the number of 'strikes', the conviction in 1987. It would appear that his Honour took into account the convictions in 1990 and 1995, for the purposes of determining the minimum period of disqualification under s 64AA(2a), because he miscalculated the periods between the dates of those convictions and the date of the commission of the present offence. If that is so, it is an error of fact. However, as he was prohibited at law from taking those convictions into account for that purpose, it was an error of law for his Honour to do so.
2. It follows that the error alleged in ground 1, read with ground 2, has been made out, and leave must be granted in respect of those grounds.
3. I will return in due course to ground 3.

Statutory provisions relevant to an appeal under pt 2

1. The powers available to the court upon granting leave are set out in s 14, which provides relevantly for the purposes of this appeal:

(1) In deciding an appeal, the Supreme Court may do one or more of the following -

(a) dismiss the appeal;

(b) allow the appeal;

(c) set aside or vary the decision of the court of summary jurisdiction and sentence imposed, order made or thing done as a result of the decision;

(d) substitute a decision that should have been made by the court of summary jurisdiction ...

(2) Despite subsection (1)(b), even if a ground of appeal might be decided in favour of the appellant, the Supreme Court may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred.

1. I will refer to the power under subsection (2) as 'the proviso'.

Respondent's submission - Whether error was material

1. The respondent submitted that the law is not settled whether this court's jurisdiction to allow an appeal under s 14(1)(b) is enlivened once any error of law or fact is established, or whether that error must be material.[23] Although the outcome of this appeal does not depend on resolving that issue, because the respondent concedes that the error in this case was material to the magistrate's exercise of the sentencing discretion, it is necessary nevertheless to consider the principles discussed in the relevant authorities, as they have a bearing on the application of the proviso in this case.
2. The need to identify a 'material error' has been recognised in appeals under pt 3 of the Criminal Appeals Act from sentences imposed in superior courts.[24] In that context it has been held that not all errors made in the sentencing of an offender vitiate the exercise of the sentencing discretion, such as to enliven the appellate court's jurisdiction to intervene.[25] To enliven the jurisdiction, the error must be material, in the sense that it must have affected, or have been capable of affecting the sentence imposed.[26] The proper approach was explained by Mazza JA in Harding v The State of Western Australia as follows:[27]

The nature of the error which enlivens this court's jurisdiction to intervene was described by Dixon, Evatt and McTiernan JJ in House v The King (1936) 55 CLR 499, 504 - 505. The error must be in the exercise of the sentencing discretion at first instance. An express error which is not material to the exercise of the sentencing discretion, that is, one that did not affect or was incapable of affecting the sentence imposed, is not an error of the type described in House v The King and does not enliven this court's jurisdiction: see Fernandes v The State of Western Australia [2009] WASCA 227 [9] - [10] (McLure P, Owen & Wheeler JJA agreeing). Whether a particular express error is material will depend upon a consideration of the circumstances of the particular case, but it is as well to appreciate that combing through sentencing remarks on the hunt for some minor express error will be unproductive unless it can be shown to be material to the exercise of the sentencing discretion.

Once an express error of the type described in House v The King has been demonstrated, the appellate court does not assess whether and to what degree the error influenced the outcome. In such a case, the sentencing discretion has miscarried and it is the duty of the appellate court to exercise the discretion for itself afresh: Kentwell v The Queen [42]. In undertaking this task, this court will have regard to, so far as is relevant:

(a) the material before the sentencing judge;

(b) any additional material put before this court; and

(c) the submissions made by the parties to this court.

If this court would have imposed a sentence which is different from the primary judge, then it will have decided that a different sentence should have been imposed, the appeal may be allowed and the appellant resentenced. If this court is of the view that no different sentence should be imposed, the appeal will be dismissed: Teakle v The State of Western Australia [2007] WASCA 15; (2007) 33 WAR 188 [73] (Buss JA).

1. Divergent views have emerged in decisions on appeals from the Magistrates Court as to whether the need for 'materiality' identified in authorities such as Harding applies to appeals under pt 2 of the Criminal Appeals Act before consideration of the proviso. The argument that it does not apply stems, at least in part, from the fact that the statutory provisions governing appeals against sentence under pt 3 are different from those that govern appeals under pt 2.[28] In particular, as Mitchell J (as he then was) observed in Ninyette v Holmes, in pt 2 of the Criminal Appeals Act there is no equivalent provision to s 31 (in pt 3) which requires the Court of Appeal to dismiss the appeal unless it is of the opinion that 'a different sentence should have been imposed'. His Honour maintained the view he had expressed in WS v Gardin[29] that 'judicial observations made in relation to provisions of pt 3 of the [Criminal Appeals Act] and its equivalents cannot automatically be applied to materially different provisions in pt 2 of [that] Act'.[30] Although his Honour noted that it was not necessary to determine the issue to resolve the appeal in that case, he expressed the view that there was no warrant for reading the word 'material' into s 8(1)(a)(i) of the Criminal Appeals Act. His Honour was of the view that the materiality of any error is to be addressed when considering whether there is no substantial miscarriage of justice under s 14(2), and that is so whether the error is one of law or fact.[31]
2. However, as can be seen from the passage quoted from Harding above, in recognising the need for an error in the sentencing discretion to be material, the authorities have been concerned with the types of error identified by the High Court in House v The King, which warrant appellate intervention.
3. In House v The King, an appeal against sentence, the plurality (Dixon, Evatt and McTiernan JJ) noted that the manner in which an appeal against an exercise of discretion should be determined is governed by established principle.[32] Their Honours went on to note that, while their authority to review a sentence arose from the High Court's general appellate power, and not from the bestowal of a 'special or particular power' to do so, the principles they identified were equally applicable to 'the particular jurisdiction conferred on courts of criminal appeal', because limitations had been formulated 'upon the manner in which [such jurisdiction] will be exercised' (citing a number of authorities).[33] Their Honours identified errors which could be express or implied, which would warrant the appeal court reviewing the sentence and exercising its own discretion in substitution for that of the court at first instance, if it has the materials to do so.[34] Such errors would exist 'if the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, [or] if he does not take into account some material consideration'.[35] It was in reference to those errors that Mazza JA noted, in Harding, the need for materiality, in that an error that '[does] not affect or is incapable of affecting the sentence imposed, is not an error of the type described in House v The King and does not enliven this court's jurisdiction'.[36]
4. It must be noted that the only criterion for the intervention of the Court of Appeal under pt 3 of the Criminal Appeals Act in an appeal against sentence is that the court would have imposed a different sentence: s 31. There is no provision in pt 3 that is the equivalent of s 8 in pt 2, which specifies the grounds on which an appeal against sentence may be commenced. However, as the High Court said in Kentwell in respect of the equivalent provision to s 31 in the Criminal Appeal Act 1912 (NSW):[37]

Notwithstanding the breadth of its language, it was settled at an early stage that the appellate court's authority to intervene is dependent upon demonstration of error.

The plurality was referring to error of the kind identified in House v The King.[38] The outline of relevant principles in the reasons of Mazza JA in Harding was consistent with Kentwell.

1. The principles in House v The King have long been applied to appeals from decisions of courts of summary jurisdiction. Section 8 of the Criminal Appeals Act was enacted against that background of established principles. The errors identified in House v The King, apart from 'mistaking the facts', are errors of law for the purposes of s 8. It might be thought, therefore, that judicial pronouncements concerning the need for materiality in respect of such errors are applicable to an appeal under pt 2, notwithstanding the absence of specific reference to materiality in s 8.
2. In Winmar v Clark, Martino J considered the analysis and views of Mitchell J in Ninyette v Holmes, but came to a different view about whether the materiality principle expressed by the Court of Appeal in pt 3 appeals applied to appeals under pt 2.[39] In essence, his Honour was of the view that the Court of Appeal authorities[40] could not be distinguished on the basis that the word 'material' did not appear in s 8, because the word does not appear in s 31 either. His Honour noted that the power to allow an appeal brought under pt 2 is found in s 14(1)(b), which, like s 31(4) under pt 3, 'does not require an appeal to be allowed if an appellant has demonstrated error'.[41]
3. In my respectful opinion, s 14(1)(b) does not shed light on whether an error must be material before the court can intervene, because s 14 is concerned with the orders that may be made by the court 'in deciding an appeal', in other words, at the conclusion of an appeal. That would follow consideration of whether the proviso under s 14(2) applies. The court will turn its mind to s 14(2) when 'a ground of appeal might be decided in favour of the appellant'. In that circumstance, 'if it considers that no substantial miscarriage of justice has occurred' it may dismiss the appeal 'despite subsection (1)(b)'. In other words, if the proviso applies, the court will exercise the power under s 14(1)(a) to dismiss the appeal.
4. In any event, in Winmar v Clark, Martino J went on to express the gravamen of his conclusion in respect of the need for materiality as follows:[42]

The need for an error to be material was expressed in the recent decisions of the Court of Appeal in Roberts v The State of Western Australia at [47] and Rowsell v The State of Western Australia at [34]. Although those appeals were under pt 3 of the Criminal Appeals Act the requirement for an error to be material before the appellate jurisdiction is enlivened was expressed in general terms, not limited to appeals under pt 3 and without reference to s 31. On the present state of the authorities it is my view that I am bound to follow the principle expressed by the Court of Appeal in those cases that not all errors made by a sentencing judicial officer will enliven the appellate court's jurisdiction, which will only be enlivened if the error is material.

1. In Winmar v Clark, the error that was found to be established was that the learned magistrate had not given the appellant the opportunity to present a plea in mitigation in person, and had not given consideration to certain mitigating factors. Martino J came to the following conclusions:[43]

In my view it cannot be said that if they had been given consideration that a different sentence would not have been imposed. It follows that the error was material and that there has been a substantial miscarriage of justice and that the appeal should be allowed.

1. His Honour went on to resentence the appellant. I discern his Honour's reasoning to be as follows: if an error has been made by the sentencing court, then unless the appeal court can exclude the possibility that a different sentence would have been imposed in the absence of that error, the error is material and there is no room for the application of the proviso, at least not before the appellate court exercises the sentencing discretion afresh. That approach appears to be consistent with the proper approach outlined by Mazza JA in Harding.[44] However, in the context of an appeal under pt 2, if the appellate court's jurisdiction to intervene is dependent on an error being material to the exercise of the sentencing discretion, it would appear to follow necessarily that there would have been no substantial miscarriage of justice if the error was not material, so that s 14(2) would be engaged to dismiss the appeal.
2. In my respectful opinion, that analysis tends to indicate that the question of whether an error must be 'material' will ordinarily be of little consequence in the determination of an appeal against sentence under pt 2. As Mitchell J observed in Ninyette v Holmes:[45]

Ordinarily an error of law which is immaterial or inconsequential to the decision as to the sentence to be imposed will not give rise to a substantial miscarriage of justice. Where an error of law could not have affected the outcome then generally an appellate court will be able to conclude that there has been no substantial miscarriage of justice without exercising the sentencing discretion afresh.

Those observations were adopted by Archer J in Birch v Binnekamp.[46]

1. As I noted at the start of this section, the outcome of this appeal does not depend on resolving the issue concerning materiality of error, because the respondent concedes the error in this case was material. However, the above analysis raises the question of whether it is open to apply the proviso when an error is found to be material, unless, after exercising the sentencing discretion afresh, this court arrives at the same sentence as that imposed by the magistrate. I will discuss that question below.
2. The respondent's concession that the error made by the magistrate was material is properly made. The mandatory minimum period of disqualification constitutes the starting point from which the court will determine, in the exercise of discretion, the appropriate period of disqualification having regard to the circumstances of the case. The greater mandatory minimum for the increased level of repeat offending reflects the legislature's intention that a more severe penalty should be imposed. The obvious purpose is to give effect to an increased element of personal and general deterrence to prevent recidivism. It would be expected, then, that the appropriate period of disqualification imposed in the exercise of discretion would also reflect an increase, based on the starting point. That would be so, whether the final outcome were arrived at by the addition of a fixed period of disqualification to the mandatory minimum period or by a percentage calculation based on the mandatory minimum. The respondent accepted that the mandatory minimum period would be relevant to the determination of the appropriate period of disqualification in a particular case, in that way.
3. In the circumstances of this case, it could not be said that the error made by the magistrate did not affect, or could not have affected, his determination of the appropriate period of disqualification. The error was material to the exercise of discretion. The question that remains to be determined is whether, despite the error, no substantial miscarriage of justice has occurred.

Whether there has been no substantial miscarriage of justice The respondent's submission

1. As I noted earlier in these reasons,[47] the respondent submitted that, notwithstanding the error made by the magistrate as to the minimum period of disqualification, the proviso should be applied in this case because the period of disqualification that was imposed was within the range of a sound exercise of the sentencing discretion. The alternative formulation of the respondent's argument was that this court should find there has been no substantial miscarriage of justice, because it could not conclude in all the circumstances that a different period of disqualification ought to have been imposed.

1. It is settled that the proviso applies to appeals against sentence from a magistrate.[48] An appeal against an order made as a result of a conviction, and which is ancillary or incidental to a sentence falls into the same category. However, as I have said, in light of the authorities discussed above, there is a question concerning the application of the proviso when an error is found to have been material to the exercise of the sentencing discretion. The answer matters, because if the finding of material error means that the court must exercise the discretion afresh, the question is not whether it was open to the magistrate to impose the period of disqualification that was imposed, but whether that period accords with the period the appellate court determines to be appropriate (i.e. ought to have been imposed) on a proper application of the law.[49] If the appellate court would impose the same period (or, potentially, a longer period), then no substantial miscarriage of justice has occurred, and the appeal would be dismissed.[50] If, on the other hand, the appellate court concludes that a lesser period is appropriate in the circumstances of the case, it could not be said there has been no substantial miscarriage of justice. In that case, the appeal would be allowed and the appeal court would make a new disqualification order.
2. I am satisfied, in light of the decisions in Kentwell, Harding, Ninyette v Holmes and Winmar v Clark, that where a material error has been established in an appeal under pt 2, the appellate court must exercise the sentencing discretion afresh, and the proviso will be considered only at that stage, in the manner I have outlined in the preceding paragraph. In that context, in accordance with s 14(5) of the Criminal Appeals Act, the court would have regard to any relevant matter that has occurred between when the offender was convicted and when the appeal was heard.
3. The respondent's submission that the proviso should be applied in this case because the period of disqualification was within the range of a sound exercise of the sentencing discretion cannot be accepted. As I have indicated, that is not a basis for the application of the proviso where material error has been established. As the plurality said in Kentwell,[51] in the context of s 6 of the Criminal Appeal Act 1912 (NSW), which gives jurisdiction to the appeal court to quash a sentence if it is 'of opinion that some other sentence, whether more or less severe is warranted in law and should have been passed'[52]:

A sentence that happens to be within the range but that has been imposed as the result of a legally flawed determination is not 'warranted in law' unless, in the exercise of its independent discretion, the Court of Criminal Appeal determines that it is the appropriate sentence for the offender and the offence.

1. Of course, the range of disqualification periods customarily imposed for similar offending is a relevant consideration in determining what the appropriate disqualification is for the offender and the offence when the appellate court is exercising its independent discretion. The factors relevant to the imposition of a period of disqualification are the same factors that inform the sentencing of the offender generally.[53]

1. Further, as the respondent acknowledged, it is appropriate to give due deference to the advantage the learned magistrate has in sentencing for offences of this kind on a regular basis, and the assessment he is required to make, based on that experience, of where the offending in a particular case falls within the range of penalties (including disqualifications) that are imposed for offences under s 64AA of the RTA. That is particularly so, in my opinion, when it would appear that there is no previous authority in which an appellate court has reviewed the period of a licence disqualification for an offence under that section.[54]
2. It is reasonable to assume that the learned magistrate would have a good appreciation of the appropriate range of penalties imposed at first instance for such offences, particularly in cases where there is no information about the offender before the court, other than his record of convictions, and the objective seriousness of the offending is confined to the bare facts of the time of the offence, the general location and the blood alcohol reading. However, his Honour's assessment of where the offending might fall in that range in this case was made on the incorrect basis that the minimum period of disqualification was 10 months rather than 8 months. The deference due to his Honour's advantage in this case must make allowance for the error made by his Honour in respect of the minimum period of disqualification. The period he imposed was 20% greater than the mandatory minimum period to which he had regard. In arriving at that penalty, it is apparent, as I have already noted, that his Honour had regard to the whole of the appellant's driving record.[55] However, it is reasonable to assume that his Honour did not consider the offending to warrant a penalty that was 50% greater than the mandatory minimum period.

(iii) No presumption that minimum period will be imposed

1. As the appellant's argument at one point suggested the contrary, it bears repeating that a mandatory statutory minimum period of disqualification does not give rise to a presumption that the minimum penalty should be imposed; the disqualification period that is appropriate for the particular offence and offender is still at the sentencing court's discretion, provided that it is not less than the minimum period.[56]

1. Ordinarily, in determining the appropriate penalty for an offence, the court would have regard to the maximum statutory penalty for the offence and determine where the offending falls on the scale of seriousness that is encompassed by the maximum penalty. In relation to the period of disqualification that may be imposed for offences under s 64AA of the RTA, no maximum period is set. It is settled that the minimum period of disqualification for a higher level of seriousness in a tiered system of penalties, such as that found in s 64AA, does not constitute a maximum period for a lower tier. In the context of this case, the 10 month minimum disqualification period for a 'subsequent offence' (i.e. a third or further offence) does not cap the maximum period of disqualification that can be imposed for a second offence.[57] Indeed, if the circumstances of a first offence are more serious than the circumstances of a second offence, they may warrant a longer period of disqualification than would be imposed for the second offence.[58] Similarly, it may be that the circumstances of a second offence are more serious than a subsequent offence, warranting a longer period of disqualification than a subsequent offence.

(iv) Taking into account convictions more than 20 years old

1. There is a question as to whether the provisions of s 107 of the RTAA operate to prevent a court from taking into account as part of an offender's general antecedents a conviction for a relevant offence that was recorded more than 20 years before the commission of the present offence. The question has not been addressed in authorities that have considered the application of s 107 of the RTAA.[59] However, it had been considered in cases concerning the predecessor of s 107, namely s 105 of the RTA.[60] Those authorities support the conclusion that the limitation period does not prevent a court from considering, as part of the offender's general antecedents, convictions that were recorded more than 20 years before the commission of the present offence.[61] The words 'penalty or penalties which may or are required to be imposed' in s 107 of the RTAA refer to the statutory maximum penalty (where that is specified) or the mandatory minimum penalty, rather than the penalty (whether a fine or disqualification) that may be imposed in the exercise of the court's discretion.[62]

(v) Whether record is indicative of need for personal deterrence

1. Although the appellant's convictions that were recorded more than 20 years before the commission of the present offence are relevant as part of his antecedents, their significance in indicating a risk of recidivism and the need for personal deterrence will depend on a number of factors. I respectfully adopt the following analysis given by Hall J in Casotti v Pickering:[63]

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.

1. The appellant has a history of convictions for criminal offences that commences in 1987. There are a number of convictions for criminal offences other than driving related offences, the last of them being in 2007, but in my opinion they do not have a bearing on what the appropriate period of disqualification was for the present offence. I referred to the prior relevant convictions earlier in these reasons. More specifically, the convictions and outcomes were as follows:

(a) 17 December 1987 - Driving with a blood alcohol level in excess of 0.08% - fined $200, licence disqualification for 3 months;

(b) 26 April 1990 - Driving under the influence (i.e. in excess of 0.15%) - fined $500, licence disqualification for 6 months;

(c) 2 May 1995 - Driving under the influence - fined $1100, licence disqualification for 2 years;

(d) 9 May 2006 - Driving with a blood alcohol level in excess of 0.05% (being greater than 0.07%) - fined $150, licence disqualification for 4 months.

1. It can be seen that there was a significant gap of 11 years between the last of the convictions for driving under the influence and the conviction in 2006 for excess 0.05%. Subsequently, there was an even longer gap of more than 12 years before the appellant committed the offence the subject of these proceedings. Although the offender showed a relatively persistent tendency to drive while affected by alcohol when he was a young man, the lapse of time and the infrequency of offending over the last 20 years would suggest that the behaviour on this occasion was out of character and the appellant was unlikely to repeat it. While, as the respondent submitted, personal deterrence remained a relevant consideration, it was not a significant factor in this case, and did not justify a significant increase in the penalty that would otherwise be appropriate for the circumstances of the offence.[64]
2. I am not satisfied, without more information about the appellant's personal circumstances, that his record for drink driving offences warranted a period of disqualification that was 1.5 times the mandatory minimum period of disqualification for a second offence.

1. As I noted earlier, there would appear to be no previous case on appeal which has reviewed a period of disqualification imposed under s 64AA. There is no authority, therefore, that can provide guidance on what might be an appropriate range of periods of disqualification at each level of the tiered sentencing regime under s 64AA. The respondent submitted that guidance might be obtained from authorities concerning disqualifications imposed under s 63 (driving under the influence) and s 60 (reckless driving) of the RTA, both of which provide for a tiered sentencing regime, by which second and subsequent offences attract increased penalties. That guidance might be derived by considering the extent to which periods of disqualification that have been held to be appropriate have exceeded the mandatory minimum period. I accept that it is appropriate to consider such authorities on that basis, but the guidance that can be derived from them is very limited, given the different nature of the offending, the different circumstances in which such offending can occur, and the different circumstances of the offenders. Further, in my opinion, the cases that are of most relevance are those involving offences under s 63 of the RTA.
2. I have considered the review of authorities under s 63 of the RTA conducted by Simmonds J in Brand v Vuleta.[65] The review indicates that there have been cases where the period of disqualification imposed has been significantly higher than the mandatory minimum period provided for the offence. However, an examination of the circumstances and outcomes in those cases reveals that they are distinguishable from the present case and do not provide any guidance as to what premium above the mandatory minimum period of disqualification was warranted in this case.
3. The respondent relied, in particular, on Paterson v Steer.[66] In that case the appellant's blood alcohol reading was 0.17%. There was no reference in the case to the appellant's manner of driving. The appellant did not have any prior convictions for driving offences; she came to be sentenced as a first offender under s 63, and was liable to a minimum fine of $800 and a minimum period of disqualification of 6 months. The summary court had imposed a fine of $1,200 and disqualification for 18 months. On appeal the fine was reduced to $800 and the period of disqualification was reduced to 9 months. The respondent submitted that the case was an illustration of the appropriateness of a period of disqualification that was 1.5 times the minimum period in circumstances where the blood alcohol reading was only 0.02% above the limit for driving under the influence, and the appellant otherwise had good antecedents. However, at the time the appeal came to be determined, the appellant had already served 'a disqualification of licence in excess of 9 months' and, in those circumstances, counsel for the respondent in that case conceded that 'the imposition of the minimum fine combined with a disqualification of licence for 9 months would, in all the circumstances, be appropriate'.[67] In those circumstances, the outcome could not be regarded as an endorsement of 9 months' disqualification as the period that ought to have been imposed at first instance.
4. In the other case that was referred to in Brand v Vuleta, namely Walley v Miles,[68] a disqualification period of 5 years was reduced on appeal to 2½ years. That was 25% over the minimum penalty of 2 years' disqualification for a second offence under s 63 RTA (as it then was). The offender had been stopped for a breath test after police officers noted a faulty left-hand indicator on the offender's vehicle. The offender had a record of convictions for both driving related and other offences, and had a blood alcohol level of 0.25%, being 0.1% over the limit for driving under the influence. Clearly, the relative seriousness of the offence was greater than in the present case, yet the disqualification period was 1.25 times the mandatory minimum period of disqualification that applied in that case.
5. In Brand v Vuleta, the appellant was a first offender under s 63 and was liable to the minimum period of disqualification of 6 months. The magistrate had imposed a period of 3 years' disqualification. On appeal it was reduced to 2 years. That was four times the minimum period. However, the offender in that case was charged with other offences arising from particularly egregious conduct that involved failing to stop as requested at a random breath test station, engaging the police in a high speed chase, and causing a minor accident and other property damage en route to his home.[69] The case provides no guidance for present purposes.
6. Just as the circumstances of some appeal cases in respect of drink driving offences have justified the imposition of a period of disqualification in excess of the minimum period, upon resentencing, there have been cases in which the appellate court has imposed the minimum period of disqualification if satisfied that such a penalty met the objectives of punishment, personal and general deterrence and the protection of the community.[70]

1. There is no doubt, in my view, that it is open for a court to impose a period of disqualification significantly higher than the mandatory minimum period specified in the RTA for a particular offence, where the circumstances warrant it. However, the authorities provide no support for the proposition that the period of disqualification imposed by the magistrate in this case was the appropriate penalty, having regard to the circumstances known to the magistrate, limited as they were.
2. The respondent acknowledged that the disqualification period of 12 months was 'towards the higher end of sentencing dispositions' for a second offence under s 64AA where the reading is equal to or greater than 0.07%. The respondent's argument that the period imposed was appropriate relies primarily on the appellant's history of offending. It was not submitted that there were any aggravating factors that warranted a penalty towards the higher end. As I have said, I do not consider that the appellant's history justified any significant increase in penalty to reflect the need for general deterrence.
3. Having regard to all of the matters I have discussed at (i) to (vi) above, I am not able to conclude that no substantial miscarriage of justice has occurred. It will be necessary to exercise the discretion afresh and impose a period of disqualification that takes into account the circumstances as they are now known to be.
4. Before doing so, I will deal briefly with the question of leave on ground 3.

1. Whether this ground is regarded as asserting an error of law or a miscarriage of justice, it is an assertion of implied error, which relies on establishing that the result is unreasonable or plainly unjust.[71] The language of 'manifest excess', which is used in respect of sentencing dispositions such as imprisonment and fines, is also apt in respect of periods of licence disqualification.[72] The principles governing the approach to determining whether a penalty is manifestly excessive are settled and do not need to be repeated for present purposes.[73]
2. The respondent's proper acknowledgment that the period of disqualification was substantially greater than the mandatory minimum period, and was 'towards the higher end of sentencing dispositions' for a second offence under s 64AA where the reading is equal to or greater than 0.07%, supports the conclusion, in my opinion, that the ground had a reasonable prospect of succeeding. That is because there is a reasonable argument that the circumstances of the offence, even having regard to the appellant's criminal history, did not fall towards the higher end on the scale of seriousness for such an offence. Therefore, I was of the view that leave should be granted in respect of ground 3.
3. It does not follow, of course, that the ground would have succeeded. Although a penalty may be 'towards the higher end', it may nevertheless be within the range of a sound sentencing discretion, as argued by the respondent. That is particularly so when the court is dealing with periods of disqualification that are at the lower end of the penalty regime under the RTA, and where a relatively small increase in the number of months of disqualification can translate into a significant percentage increase (or multiple) of the minimum period.
4. However, given my conclusions in respect of grounds 1 and 2, it is not necessary to determine ground 3.

1. In exercising the discretion afresh and deciding upon an appropriate period of disqualification, it is necessary for me to have regard to the circumstances of the offence and the appellant's personal circumstances.

1. As I noted above, the information before the magistrate concerning the circumstances of the offence was very limited. The appellant had endorsed his plea of guilty on the summons, but had not sought to explain his behaviour, which he could have done in writing. At the hearing of the appeal, he sought to elaborate upon the facts of his offending. I was not prepared to have regard to that elaboration in the context of dealing with the grounds of appeal. At that stage, I was required to decide the matter on the material before the magistrate. However, as Mazza JA indicated in Harding v The State of Western Australia, where material error has been demonstrated and the court must exercise the sentencing discretion afresh, the court will have regard to, inter alia, any additional material put before the court.[74] Although the information was not on affidavit, I am prepared to take it into account in assessing the seriousness of the offending.
2. The appellant explained that he did not drink at night and go out. Having come off night shift, he had four to five beers and went to bed. He said that the following morning he woke up around 10 o'clock and went to go camping. He was stopped at a random breath testing station. He said he had not considered the possibility that he would be over the limit in the morning.[75]
3. The facts stated to the magistrate were that the appellant was stopped for the breath test at 11.03 am. Counsel for the respondent informed me that the location was on Coalfields Road, near Wellington Boulevard, in Collie, although that does not shed any light on the surrounding circumstances, including the traffic conditions or the appellant's manner of driving. It was acknowledged by the respondent that there were no aggravating factors in the facts before the court.
4. I accept the appellant's explanation. However, he was 50 years of age at the time of the offence and ought to have appreciated that it was possible he may still be over the limit of 0.05%. It is no excuse to say he did not consider it. The court must give effect to the legislative intent to protect road users and other persons on or near roads from the potential harm to life, health and property of persons driving while affected by alcohol. However, it is a relevant factor that the appellant did not make a deliberate choice to drive knowing that he was or may be over the limit. In all the circumstances, the offending can properly be regarded as being towards the lower end of the scale of seriousness.

1. By way of mitigation, the appellant informed me that he was a different person from the person he was as a youth and young man, when the bulk of his prior offending occurred. He submitted that was evident from the long periods without offending.[76]
2. The appellant informed me that he is a single father and that his youngest son has lived with him for the last 13 years and has changed his outlook. He is a firefighter employed by Parks and Wildlife as a machine operator for which he requires a driver's licence. Part of his work involves prescribed burning out of Collie.[77] The appellant submitted that, with the prescribed burning and fire season approaching, he would be of greatest service to the community if he were able to work as a machine operator.
3. Of course, the appellant's employer would be obliged to ensure that another employee performed the tasks the appellant may not be able to perform if he is not the holder of a valid driver's licence. However, the appellant's submission goes to demonstrate that even a difference of a few months in the disqualification period could affect his ability to perform all of his duties as a firefighter.

1. I have come to the conclusion, having regard to all of the circumstances, that a period of disqualification in excess of the minimum period of 8 months is warranted. That is because, while the appellant's conduct may be regarded properly as a lapse of judgment, it occurred against a background of prior offending that gives rise to the need for the penalty to act as a personal deterrent. The penalty must also act as a general deterrent to prevent recidivism in respect of such offending. The extent to which the period of disqualification exceeds the minimum period will be tempered by the fact that personal deterrence, while relevant, is not a significant factor in this case, and the offending can properly be regarded as being towards the lower end of the scale of seriousness.
2. Having taken all relevant matters into account, including the outcome reached by the learned magistrate, albeit on the basis of the wrong minimum term, I consider that the appropriate period of disqualification is 10 months.
3. The appellant has been serving the period of disqualification since it was imposed. He was always required to serve a mandatory minimum period of 8 months' disqualification in any event. The period of disqualification will take effect from the date on which the disqualification order was made by the learned magistrate, namely 20 March 2019.

(1) Leave is granted in respect of grounds 1, 2 and 3.

(2) The appeal is allowed on the basis of grounds 1 and 2.

(3) No further order is made in respect of ground 3.

(4) The period of disqualification of 12 months imposed by the learned magistrate on 20 March 2019 is set aside.

(5) The appellant is disqualified from holding or obtaining a driver's licence for a period of 10 months commencing on 20 March 2019.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[1] Criminal Appeals Act 2004 (WA) s 7(1).

[2] Criminal Appeals Act 2004 s 6.

[3] Lawson v The State of Western Australia [2018] WASCA 129; (2018) 85 MVR 160 [71], [73]; Edwards v Simpson [2018] WASCA 177; (2018) 86 MVR 14 [23]. My statement to the contrary in Harwig v Myers [2018] WASC 196 [24], relying on s 102 and s 105 of the Sentencing Act 1995 (WA), was incorrect; it overlooked s 105(4) of that Act which, in effect, excludes from the application of s 105 the 'right or duty' to impose a disqualification under the RTA. As a consequence of the exclusion, s 102 and s 39(6) of the Sentencing Act, which provide inter alia that disqualifications under pt 15 of that Act (which includes s 105) form (or are to be taken to be) part of the sentence, do not apply to licence disqualifications under the RTA.

[4] Interpretation Act 1984 (WA) s 5.

[5] Criminal Appeals Act 2004 s 9(1) and (3).

[6] Criminal Appeals Act 2004 s 9(2).

[7] Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56].

[8] The amendment was the addition of the words 'a mandatory minimum period of' in ground 2. Although the appellant's argument initially appeared to suggest that the magistrate could not impose more than 8 months' disqualification, he acknowledged during the hearing that 8 months was the mandatory minimum period of disqualification, and that the magistrate had a discretion to impose a longer period of disqualification. The amendment to ground 2 had the effect of further particularising the error identified in ground 1.

[9] Macquarie Dictionary. A similar definition is given in the Oxford English Dictionary.

[10] Criminal Appeals Act s 8(1)(a)(i).

[11] Criminal Appeals Act s 8(1)(a)(iii).

[12] Criminal Appeals Act s 8(1)(b).

[13] Samuels v The State of Western Australia [60].

[14] House v The King [1936] HCA 40; (1936) 55 CLR 499, 504 ‑ 505 (Dixon, Evatt & McTiernan JJ); Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665.

[15] House v The King, 505 (Dixon, Evatt and McTiernan JJ), where it was said that 'a failure properly to exercise the discretion which the law reposes in the court of first instance' will justify a review of the exercise of discretion 'on the ground that a substantial wrong has in fact occurred'.

[16] Road Traffic (Administration) Act s 7.

[17] Road Traffic (Administration) Act s 7.

[18] The definition of 'written law' in s 5 of the Interpretation Act 1984 (WA) includes all Acts passed by the Parliament of Western Australia that are in force for the time being.

[19] Explanatory Memorandum, Road Traffic (Administration) Bill 2007 (WA) 30. Nothing was said about the effect of s 107 (or indeed any other specific provisions) in the second reading speech: Western Australia, Parliamentary Debates, Legislative Assembly, 28 November 2007, 7899 - 7900 (Ms AJG MacTiernan, Minister for Planning and Infrastructure).

[22] Respondent's outline of submissions filed 6 September 2019 para 8.

[23] That any error is sufficient is suggested by the following cases: Ninyette v Holmes [2015] WASC 287; (2015) 72 MVR 81 [65] (Mitchell J); Birch v Binnekamp [2018] WASC 58 [16]-[24] (Archer J). That the error must be material is suggested by Winmar v Clark [2015] WASC 314 [29] ‑ [30] (Martino J).

[24] Harding v The State of WA [2015] WASCA 27 [73] - [75] (Mazza JA; Hall J agreeing) (Harding); Brewerton v The State of Western Australia [2017] WASCA 191; (2017) 82 MVR 176 [25] (the Court); Bloomfield v The State of Western Australia [2017] WASCA 10 [44] (Corboy J, Buss P and Mazza JA agreeing); Rowsell v The State of Western Australia [2015] WASCA 2 [34].

[25] Kentwell v The Queen [2014] HCA 37; (2014) 313 ALR 451 [42] (French CJ, Hayne, Bell & Keane JJ) (Kentwell); Harding [73] ‑ [75] (Mazza JA; Hall J agreeing).

[26] Fernandes v The State of Western Australia [2009] WASCA 227 [9] ‑ [10] (McLure P, Owen & Wheeler JJA agreeing); Kentwell [41] ‑ [43] (French CJ, Hayne, Bell & Keane JJ).

[27] Harding [73] ‑ [75]. The citation for Kentwell is in footnote 16 above.

[29] WS v Gardin [2015] WASC 97; (2015) WAR 494 [219] ‑ [242].

[31] Ninyette v Holmes [56], [69] and [70]. In Birch v Binnekamp, although Archer J did not address the question of whether an error must be material even before consideration of the proviso, her Honour adopted the approach of Mitchell J in taking materiality into account when considering the proviso: [23].

[33] House v The King CLR 505. See also Kentwell [35] (French CJ, Hayne, Bell and Keane JJ).

[37] Kentwell [35] (French CJ, Hayne, Bell and Keane JJ).

[38] Kentwell [42] (French CJ, Hayne, Bell and Keane JJ).

[39] Winmar v Clark [29] ‑ [30] (Martino J).

[40] Burrows v The State of Western Australia [2014] WASCA 147; Roberts v The State of Western Australia [2014] WASCA 239 and Rowsell v The State of Western Australia.

[44] See [42] above.

[47] See [13] above.

[48] Powell v Tickner [2010] WASCA 224 [116] (Buss JA); Abeyakoon v Brown [2011] WASCA 63 [32] (the Court); Wallam v Dent [2008] WASC 170 [31] ‑ [33] (Jenkins J); Powell v The State of Western Australia [2010] WASC 54 [91] (Simmonds J); Joyce v Gee [2010] WASC 76 [34] (Mazza J, as he then was); Inglis v Pinch [2016] WASC 30; (2016) 256 A Crim R 502. See also WS v Gardin [228] (Mitchell J, as he then was).

[49] Inglis v Pinch; Wallam v Dent [31] (Jenkins J).

[50] Kentwell [42] ‑ [43] (French CJ, Hayne, Bell & Keane JJ). Their Honours noted that, where the court might be inclined to impose a greater penalty, convention would require the court to inform the appellant, so that the appellant has the opportunity to abandon the appeal. See also Wallam v Dent.

[52] Section 6(3) of the Criminal Appeal Act 1912 (NSW) provides, relevantly: 'On an appeal ... against a sentence, the court, if it is of opinion that some other sentence, whether more or less severe is warranted in law and should have been passed, shall quash the sentence and pass such other sentence in substitution therefor, and in any other case shall dismiss the appeal.'

[54] Neither counsel for the respondent, nor I, was able to identify any such authority. The appellant was unrepresented. The authorities to which the respondent referred were in respect of s 63 of the RTA.

[55] See [30] above.

[56] Brand v Vuleta [2005] WASCA 24 [51], citing Mullane v Smith (unreported, SCt of WA, Library No 1318, 10 November 1989); (1989) 10 MVR 111 and Richards v Damianopolous [2002] WASCA 159 [15] ‑ [18] (McLure J).

[57] R (a child) v Panaia [2011] WASC 110 [30] (Hall J); Richards v Damianopolous [15] ‑ [18] (McLure J).

[58] Richards v Damianopolus [17] ‑ [18].

[59] Batt v Wigger [2017] WASC 300; Wilson v Pymm [2015] WASC 449.

[60] Prior to 27 April 2015. Section 105 of the Road Traffic Act 1974 was deleted by s 29 of the Road Traffic

Legislation Amendment Act 2012. Section 29 commenced operation on 27 April 2015.

[61] Anderson v Little [2009] WASC 143 [19] ‑ [20] (Jenkins J); Barron v Western Australia [2010] WASCA 27; (2010) 55 MVR 123 [25] (Owen JA, Wheeler & Newnes JJA agreeing).

[62] Barron v Western Australia [25]. I accept the respondent's submission that the change in wording from 'the penalty or penalties which may or shall be imposed' in the former s 105 of the RTA to 'the penalty or penalties that are required to be imposed' s 107 of the RTAA does not affect the application of the principles and statutory construction in that case to the construction of s 107.

[63] Casotti v Pickering [2013] WASC 174 [28] (Hall J).

[64] Recognising that the need for personal deterrence ordinarily results in a greater penalty: Samson v The State of Western Australia [2011] WASCA 173 [12].

[66] Paterson v Steer [2000] WASCA 250.

[68] Walley v Miles (unreported; SCt of WA; Library No 950179; 10 April 1995).

[70] Harwig v Myers [40] (Fiannaca J); Brewerton v The State of Western Australia [75] (the Court).

[72] Brewerton v The State of Western Australia [75].

[73] McCoombe v The State of Western Australia [2016] WASCA 227 [25].

[74] Harding v The State of Western Australia [74].