Sentencing Act 1995

Justices Act 1902

Decision of Magistrate to sentence appellant to imprisonment set aside

Decision of Magistrate to call in suspended sentence set aside

Appellant sentenced to imprisonment for 4 months suspended for 1 year

Calway v Wiebe, unreported; SCt of WA; Library No 990001; 13 January 1999

Hall v R [1999] WASCA 225

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

Jennings v Carson, unreported; SCt of WA; Library No 980608; 21 October 1998

Narrier v Fallows, unreported; SCt of WA; Library No 970175; 11 April 1997

R v GP (1997) 18 WAR 196

R v Liddington (1997) 18 WAR 394

R v Tait (1979) 46 FLR 386

Slater v Whitehead [1999] WASCA 69

Stewart v Waghorn [1999] WASCA 150

1 MILLER J: The appellant was convicted in the Court of Petty Sessions, Perth on 21 January 1999 of driving a motor vehicle on 17 January 1999 whilst under licence suspension. She came before Mr C Zempilas CSM to whom she put the explanation that she had been driving on the day in question because her daughter had had an asthma attack and there was no-one else available to drive her for medical attention. The person whose car it was refused to drive because he had been drinking. The learned Magistrate observed that it was the appellant's third conviction for driving under suspension, there being a suspension of licence for demerit points only one month earlier. His Worship imposed a sentence of 3 months and 1 day's imprisonment (the minimum imprisonment open) which he suspended for a period of nine months. Additional orders were made for further disqualification of licence and costs. His Worship warned the appellant in the following terms:

"Now I've got to warn you, Miss Dickman, it'll really come home if you commit any offence in the next 9 months which carries as one of the options gaol to the magistrate, like possession of cannabis; you got probation. But even though you got probation, it carries as one of the options probation, fine or goal. If you're charged with possession of cannabis, that will trigger off the 3 months and 1 day.

You've got to be absolutely squeaky clean for the next nine, then after that have a party. Wait over there in the jury box; we'll get you to sign up. But you will go to gaol if you commit an offence."

2 On 21 July 1999 the appellant was charged that on 17 July at Woodlands she had driven a motor vehicle whilst under suspension. The matter came before Mr S A Heath DCM in the Court of Petty Sessions, Perth on 10 September 1999 and the appellant then pleaded guilty to that charge. It was put to the court that it was her fourth offence of driving whilst under suspension and that when stopped by police in Marlock Street, Woodlands she had given the explanation for driving that she "had gone to the shops". Counsel for the appellant explained to the learned Magistrate that there were special circumstances which led to the appellant driving on the day in question. It was put that her family had suffered a number of traumas and that she (the appellant) had experienced real difficulties with respect to her oldest teenage daughter, who some two weeks before the commission of the offence, had left home and not been found for more than 24 hours. On the evening before commission of the offence the same daughter had gone to bed in the family home, but when her bedroom was checked at some time after 9 am on Saturday morning it was discovered that she was not in her room and was nowhere to be found in the house. The learned Magistrate was advised that the appellant had decided to wait at home for some time in case the daughter telephoned to say where she was, but after an hour and a half there had been no call and in panic the appellant had taken her vehicle and gone to look for her - allegedly driving around the local park down to the lake and to the local shopping centre. It was put that the appellant had confirmed this fact by saying to the police that she had just "gone to the shops". Apparently the daughter was located some time later.

3 A history of problems with the daughter was put to the learned Magistrate, including the fact that she had been found crushing up tablets and snorting them at school in recent times and was likely to be suspended. The mother and daughter had been engaged in counselling to address difficulties between them and the appellant herself had since the imposition of the suspended sentence in January of that year been certified as being depressive and had been on medication and receiving counselling through her local doctor and Centrecare Marriage and Family Services. It was also put that she was on a methadone programme to overcome earlier heroin addiction and that in essence she had only driven on the day in question because of "very difficult domestic circumstances that the family was undergoing at that time and the difficulties that she herself was undergoing". She was said to be currently studying to become a teacher and any imposition of a term of imprisonment would impact upon those studies and her ability to work in that field.

4 The learned Magistrate pointed out to the appellant that she had been convicted of driving under suspension in July 1998, November 1998, January 1999 and now July 1999. He expressed the view that he had some difficulty in accepting the explanation given as to why the appellant was driving on 17 July and pointed out that there was no evidence of the police having been called or anybody else having been contacted, and when stopped by police no explanation had been given of the missing daughter's whereabouts. His Worship considered the difficulties the appellant had experienced with her daughter and also the appellant's own medical condition but said:

"However, in my view they are insufficient for me to no follow the obligation that is imposed on me, unless it is unjust to do so, to now sentence you to serve the term of imprisonment that was previously imposed upon you.

Accordingly, you will now be sentenced to the 3 months and 1 day imprisonment that set - - to which you were sentenced on the 21st of January; and in relation to the further offence you'll be sentence to 4 months' imprisonment. Those terms to be served concurrently, of course, such that there is a single sentence of 4 months..."

5 On 17 September 1999 Scott J granted the appellant leave to appeal the sentences imposed by Mr Heath SM on the following grounds:

"A. The Learned Magistrate erred in imposing a term of immediate imprisonment upon the applicant in relation to complaint 99/31028.

His Worship failed to give any or any sufficient weight to:

A.1 the extenuating circumstances which led to the applicant driving a motor vehicle on 17 July 1999;

A.2 the applicant's state of depression at the time of the offence;

A.3 the adverse effect that the term of imprisonment will have on her children and in particular upon her thirteen year old daughter, Jessica;

A.4 to the rehabilitative effect on the application of a further suspended sentence of imprisonment.

B. The learned Magistrate erred in ordering that the applicant serve the suspended sentence of three months and one day imposed upon her on 21 January 1999 on complaint 99/6832.

B.1 His Worship erred in not finding that the applicant's depression and the difficulties that she was experiencing with her daughter Jessica were factors which had arisen since the imposition of the suspended sentence and which made it unjust to order that the suspended sentence be served."

6 When the appeal first came on for hearing counsel for the appellant accepted that recent authority showed that repeated offences of driving whilst under suspension would ordinarily warrant an actual term of imprisonment, citing in particular Krakouer v Durka, unreported; SCt of WA; Library No 980595; 14 October 1998. Counsel did, however, submit that there will be cases in which the circumstances of the offence will support the imposition of a suspended term of imprisonment, citing O'Brien v Ritchie, unreported; SCt of WA; Library No 990123; 17 March 1999. It was submitted that counsel for the appellant had before the learned Magistrate pleaded that the circumstances leading to the fourth conviction for driving whilst suspended were "extenuating" because her 13-year-old daughter had gone missing and frantic with worry the appellant had gone to look for her in her vehicle. Reference was also made to counsel's submissions that the appellant, had at the time of her fourth conviction, been suffering a state of depression and was encountering serious disciplinary difficulties with her daughter necessitating counselling. Counsel on the appeal criticised the learned Magistrate's observations that he difficulty in accepting the explanation for driving put forward by the appellant, submitting that his Worship should have indicated to counsel those difficulties so that the opportunity for making further submissions or calling evidence in support of the explanation might be given. However, I must say that I interpret the learned Magistrate's reasons to simply be that he was sceptical of the appellant's explanation because of her failure to explain to police that she was looking for her missing daughter rather than to simply say that she had been to the shops.

7 Because the material before the learned Magistrate, and before me on appeal, was brief in the extreme in relation to the events that had occurred at the appellant's home on the morning of 17 July I invited counsel for the appellant to consider whether application should be made to lead further evidence of the so-called "extenuating circumstances" which led the appellant to drive on the day in question. Counsel for the respondents properly conceded that the interests of justice probably required that this should be done. Accordingly, I gave leave to the appellant to file and serve further affidavits relating to the circumstances which allegedly compelled the appellant to drive on the morning in question in search of her missing daughter.

8 By affidavit sworn 20 December 1999, the appellant deposed to the fact that she is 37 years of age and presently resides with her de facto husband, Lindsay Hayes, and her three children at 19 Johnswood Drive, Kingsley. One of those children is Jessy Lesley Dickman, who was born on 18 November 1985 and was, at the relevant time, 14 years of age. In relation to her three prior convictions for driving whilst legally disentitled to do so, the appellant swore as follows:

9 (a) On 15 July 1998, the conviction arose out of her driving whilst under fine suspension. She had not paid a fine imposed for stealing in 1996 and a fine for driving without a motor driver's licence in 1997. She was not aware, on the occasion on which she drove, that she was under fine suspension.

10 (b) The conviction on 27 November 1998 arose out of driving whilst under suspension in circumstances for which there was no excuse.

11 (c) The conviction on 21 January 1999 arose because her daughter Jessy had suffered an asthma attack and she had borrowed a friend's car to take her daughter to a chemist to purchase medication for her. Because her de facto husband had been drinking, she felt that she had no choice but to drive to the chemist herself.

12 The appellant further swore to the effect that she heard and understood very clearly the warning given by Mr Zempilas SM on 21 January 1999 concerning the dangers of being further convicted of any offence during the suspended term of imprisonment which was then imposed. Accordingly, she did not drive until 17 July 1999, when, according to her, she drove "because of the extraordinary circumstances" which she faced that day. The affidavit reveals that the appellant's daughter, Jessy, had, during the 1999 year, been a year 8 student at Churchlands Senior High School, where she encountered numerous difficulties throughout the course of the academic year. These included fighting with other children, sniffing solvents, using amphetamine-based attention deficit disorder mediation without prescription, truancy, shoplifting and suspension from school. A document annexed to the appellant's affidavit reveals that Jessy was suspended on a number of occasions during the year prior to 29 July and on at least one occasion for physical assault or intimidation of other students.

13 The appellant has sworn to the fact that she had great difficulty in controlling her daughter and on the evening of Friday 16 July 1999 had refused to let her go out, in response to which Jessy had thrown a tantrum, was rude and insulting and had gone to her room. On the following morning, 17 July 1999, the appellant became aware, some time between 9 and 10 am, that Jessy was not in her bedroom and became afraid that she had run away. She sent Lindsay Hayes, and her other children to look for Jessy in the area in the vicinity of 12 Penelope Place, Innaloo, where they were then living, and she (the appellant) stayed at home in case Jessy rang or returned. Mr Hayes was away for over an hour and the appellant became increasingly upset. She did not ring the police because on one prior occasion when Jessy had gone missing she had done so, but had been told to ring back if she had not returned within 24 hours. She did not seek the assistance of neighbours because she did not know them and she had no prospect of any assistance from parents of friends of Jessy. As the morning wore on, she became more and more anxious and eventually panicked. Without waiting for Mr Hayes to return (he, in any event, having been drinking that morning and incapable of driving), she took Mr Hayes' motor vehicle and decided to drive to two locations where she knew that Jessy met her friends, namely, Innaloo shopping centre and Woodlands shopping centre. She went first to the Innaloo shopping centre, but could not find her daughter. She was driving towards the Woodlands shopping centre when apprehended by police.

14 The appellant further deposes in her affidavit that since 17 July 1999 things have improved between her daughter and herself. The family is now living in a more desirable area and she and her daughter are undergoing counselling. The only other matter of note in the appellant's affidavit is that on 19 November 1999 in the Perth Court of Petty Sessions the appellant was convicted of five charges of fraud in relation to which she was fined $200 on each charge. The learned Magistrate was then apparently of the understanding that the suspended term of imprisonment had been called in, but that the appellant was "out". This is a matter with which I need not be concerned. If, as a result of the orders I make, a complaint is made under s 79 of the Sentencing Act 1995 in relation to this, it will be for the Court of Petty Sessions to deal with it.

15 The affidavit of the appellant is supported by an affidavit of Mr Hayes. He has sworn to the effect that on the morning of 17 July 1999 Jessy was nowhere to be found in the house and because the appellant was extremely worried, he was told to go looking for her, which he did with the other two children. He confirms that, on the morning in question, he had consumed alcohol. When he returned to the house, he found that his vehicle was not there. He later ascertained that the appellant had been arrested and it was about 4 pm on 17 July when Jessy returned home. In her affidavit, Jessica (known as Jessy) Dickman, confirms the difficulties which she had at school during the 1999 year and the problems she had with her mother. She confirms that, on the morning of 17 July 1999, she was extremely angry with her mother and, when she awoke at about 6 am, she left home shortly afterwards without telling anybody and without leaving any note as to where she was going. After walking around for a while, she went to the Innaloo shopping centre where she met people and she stayed with them in that shopping centre for most of the day, returning somewhere between 4 and 5 pm. She was not aware that her mother went looking for her, but was aware that her mother was apprehended for driving whilst disentitled to do so. She confirms that since 17 July 1999 her relationship with her mother has improved and she and her mother have been attending counselling.

16 On behalf of the respondents, there was filed an affidavit of David Anthony Boardman, a constable of police stationed at Leederville police station. He has deposed to the fact that, at about 12.05 pm on 17 July 1999, he apprehended the appellant in Marlock Street, which is south-west of the Innaloo shopping centre. He recalls the appellant giving her explanation for driving as "I have to go to the shops" and he found her alone in the vehicle with no shopping in it. He has a recollection at the Leederville police station of the appellant asking how long she would be detained because she "would have to make some arrangements to have her daughter picked up". It will be seen that, when apprehended, the appellant failed to explain to Constable Boardman that she was looking for her daughter. The statement that she had to go to the shops was, however, equivocal and consistent with the appellant's sworn affidavit that she was going to the shopping centre at Innaloo to try and find her daughter. The officer's recollection of the appellant's inquiry about how long she would have to stay at the station is not inconsistent with the appellant's daughter missing and having to be found.

17 In all the circumstances, I am satisfied that there is material which now reveals that the appellant acted under a situation of emergency, or what has been described by counsel as "extenuating or extraordinary circumstances", on the morning of 17 July 1999. The fact that her 14-year-old daughter had gone missing without any explanation as to where she might be, and the history of problems which she had encountered during the 1999 year did, in my view, create extenuating circumstances, causing the appellant to drive when she well knew she should not have done so. It is not, however, the case that the learned Magistrate who heard the matter made any error in the way in which he disposed of the case. He did not have these facts before him, and had only a limited amount of information advanced by counsel for the appellant which he (quite reasonably) had some scepticism about, primarily because when stopped by the police the appellant had given no explanation of the fact that her daughter was missing. However, under the provisions of s 186(1)(b) of the Justices Act 1902, leave to appeal may be granted where there is some other reason that is sufficient to justify a review of the decision. That, in my view, is the situation here. New facts elaborating upon the circumstances in which the appellant drove on the day in question have now been put before the court and entitle it (Justices Act s 199) to substitute a decision that ought to have been made by the learned Magistrate had those facts been before him.

18 In Police v Cadd & Ors [1997] SASC 6187; (1997) 69 SASR 150, Doyle CJ (at 167 - 168) pointed out that driving whilst disqualified ordinarily warrants imprisonment, and the seriousness of the offence may make it difficult to justify suspension of the sentence of imprisonment. His Honour said that circumstances justifying suspension are unlikely to be found in routine or run-of-the-mill cases, but individual consideration must still be given to a wide variety of matters, including the circumstances of the offender, the likelihood of the offender responding to a final warning and the community interest in rehabilitation. His Honour added:

"For my part, rather than say that a suspended sentence will be exceptional for a person convicted of driving whilst disqualified, I would say that the offence is of a type and tends to be committed in circumstances such that cases in which the circumstances of the offence support suspension will be unusual cases (eg cases of genuine emergency; cases in which the driving is really trivial). However, the circumstances of the offender must also be considered and may nevertheless warrant the giving of a last chance by means of a suspended sentence."

"In my view, there can be no sound reason in principle to exclude a first offender from the option of a suspended sentence regardless of the circumstances of both the offence and the offender. The first offender could qualify for consideration in accordance with the principles established in these cases. If having considered all of the circumstances, the sentencer thinks that there is good reason to do so, then the discretion is to be exercised. I do not think there is any sound reason to establish a sentencing standard for a person who commits this offence for the first time which fetters the exercise of the discretion any further.

Of course, different considerations must apply to the offender who is before the court on this charge for a second or subsequent occasion. Circumstances which would justify other than a sentence of imprisonment actually to be served do not readily come to mind, but that is not to say that they cannot exist."

20 Much the same has been said in general terms about the circumstances in which a sentence of imprisonment may be suspended in R v Liddington (1997) 18 WAR 394, where Steytler J (at 406) highlighted the various factors which might be taken into account in determining whether or not a sentence of imprisonment should be suspended. His Honour said:

"Amongst the factors which should be considered, in addition to the prospect of rehabilitation taken together with the personal deterrence provided by the threat of activation of the suspended sentence, are the perceived seriousness and intrinsic character of the particular offence (see Wood v Samuels [1974] 8 SASR 465; The Queen v Kruger [1977] 17 SASR 214 at 221; Causby, supra, at 469-474; Kirk (1984) 6 Crim App Rep (S) 231, and GP, supra, per Malcolm CJ at 42, Murray J at 24 and Steytler J at 6), whether there is any element of persistence (see Wood v Samuels, supra, at 468 and The Queen v Kruger, supra, at 221); general deterrence (Causby, supra at 469); factors personal to the offender including mitigating circumstances which, while no doubt already taken into account in arriving at the decision to impose imprisonment of a particular term, may have to be considered again as regards the question whether or not to suspend the period of imprisonment so arrived at (see R v P [1992] FCA 626; (1992) 111 ALR 541 at 551; R v Locke [1973] 6 SASR 298 at 302; Jarrett v R [1992] 58 SASR 457 at 459; Scott v SA Police [1993] SASC 4038; [1994] 61 SASR 589 at 592 and cf R v Percy, supra, at 72-3); the need to demonstrate the condemnation of the community for offences of that kind (Causby, supra, at 469; GP, supra, per Malcolm CJ at 42); and reasons militating in favour of an exercise of mercy (R v Osenkowski [1982] 30 SASR 212 at 212-213; R v P, supra, at 551 and GP, supra, per Murray J at 24).That list is, of course, not exhaustive. There can, in the very nature of the exercise which must be undertaken, be no comprehensive list of specific criteria (cf Wood v Samuels, supra, at 468) and the factors to be taken into account, and their relative importance in any given case, will necessarily vary with the differing circumstances of each case."

21 This passage I respectfully adopted in Krakouer v Durka (supra). In my view, it sets out very clearly the criteria that might be considered in determining whether or not a sentence of imprisonment might properly be suspended.

22 Having regard to these cases, it is my view that it has been established on behalf of the appellant that she drove on 17 July 1999 in circumstances which were so exceptional that, what might otherwise be considered an act of driving which inevitably deserved a finite term of imprisonment, nevertheless called for an exercise of mercy in her favour. For these reasons, I consider it appropriate to set aside the decision of the learned Magistrate imposing a finite term of imprisonment of 4 months for the offence of driving under suspension on 17 July 1999 and in lieu thereof to order that the sentence of 4 months' imprisonment be suspended for a period of 12 months. In relation to the decision of the learned Magistrate to call in the suspended sentence imposed by Mr Zempilas CSM on 17 January 1999, for which the appellant was sentenced to 3 months and 1 day's imprisonment, I would set aside that order and in lieu thereof direct that there should be no order under the provisions of s 80 of the Sentencing Act by reason of the fact that it would, in all the circumstances, be unjust to make an order under s 80(1)(a) of that Act. It will be a rare case in which a court will refrain, in these circumstances, from "calling in" the sentence of imprisonment which has been suspended, as was pointed out in Hall v The Queen [1999] WASCA 225 by Kennedy J at par 35. Nor will an appeal court readily interfere with a decision by a judicial officer at first instance under s 80 of the Sentencing Act 1995. However, I am satisfied that in the circumstances of this case, it is appropriate to interfere. For these reasons, I order that: (1) the appeal be allowed; (2) the decision of the learned Magistrate sentencing the appellant to imprisonment for 4 months be set aside and in lieu thereof there be imposed a sentence of 4 months' imprisonment, suspended for a period of 12 months; (3) the decision of the learned Magistrate to call in the suspended sentence imposed by Mr Zempilas CSM on 19 January 1999 be set aside and in lieu thereof there be an order under s 80(3) of the Sentencing Act 1995 that there be no action taken in relation to the breach of that suspended sentence.