DOUGLAS -v- FERGUSON [2012] WASC 207 (18 June 2012)

4 The facts are that at 11.30 pm on 29 July 2011 the appellant was driving a Ford Falcon on Beach Road, Duncraig. There was a passenger in the vehicle. He was observed by police driving in a manner that was considered dangerous. There was a dispute as to exactly what this was and I will return to that issue shortly. After noticing the police the appellant drove off at speed. The police pursued him and activated their emergency lights and siren. The appellant did not stop and the chase continued through Duncraig.

5 During the chase the appellant's car reached speeds of over 100 km per hour in a builtup area where the speed limit was 50 km per hour. Ultimately the appellant drove into a culdesac and, being unable to continue further, was apprehended. The appellant was breath tested and found to have a blood alcohol level that was calculated to have been 0.062 grams per 100 mls at the time of driving.

6 At the time of the offence the road was wet and it was raining intermittently. The streetlights were on and visibility was described as fair. There was little other traffic and no pedestrians were observed in the area.

7 As I noted, there was a dispute as to what it was that first attracted police attention. The prosecution alleged it was what was described as fishtailing and circle work. The appellant denied this but admitted he had driven over a median strip to turn around and that this could have thrown up sand and caused his car to slip. This dispute was not resolved. The prosecution did not seek to prove this aspect of the alleged facts. Given that it was clearly an aggravating circumstance, it fell upon the prosecution to prove it beyond reasonable doubt if it was to be relied upon: Law v The State of Western Australia [2009] WASCA 193 [23] (Buss JA), R v Olbrich [1999] HCA 54; (1999) 199 CLR 270. In the circumstances, this factor not being proven, it was not a matter that the magistrate could rely on as being part of the facts of the offence.

8 In mitigation the magistrate was told that the appellant had made changes to his life in the period that had elapsed since the offence. This was a period of approximately nine months. The delay had occurred for reasons that were not suggested to reflect adversely on the appellant. In the intervening time the appellant had established a relationship and his girlfriend was pregnant. He was working as an apprentice motor mechanic and living a stable life with his girlfriend at his parents' home. Most significantly he had acknowledged a problem with alcohol and had curtailed his use to an extent that was said to be virtual abstinence.

9 The magistrate obtained a verbal presentence report. The community corrections officer who gave the report said that he had insufficient time to complete his interview with the appellant. That is obviously regrettable, particularly in circumstances where a penalty of imprisonment was clearly in contemplation by the magistrate. Nevertheless, the community corrections officer gave a report to the best of his ability.

10 That report included reference to dealing with alcohol and the appellant's acknowledgment in 2011 of it being problematic. He told the officer that he had since reduced his use of alcohol considerably and this was said to have been encouraged by his parents with whom he lived. There was also a reference to counselling, though it was not clear to what extent that this had occurred. In any event, the appellant said he now had his alcohol use under control and did not feel the need for further counselling but was open to undertaking testing and formal counselling if the court considered it appropriate.

11 In sentencing the magistrate made the following remarks:

I have taken into account the fact that you have pleaded guilty to all of the offences before the court and the fact that you are remorseful. I can also see, or hear rather, from Mr Donaldson that you - perhaps this has been a bit of a wake up call and you have tried to do the right thing since the middle of last year. I have also heard in terms of your personal circumstances, that you are working and that your partner is expecting I assume your first child very, very soon.

The circumstances of the offending are serious and obviously cars speeding through the community being chased by police is extremely topical at this time. You come before the court with a history. You have habitually failed to comply with the law for a number of years now and I have herd about your problems with alcohol and other substances.

It is your second conviction of reckless driving. I note that your earlier [conviction] goes back to 2007. Because of the absence of any record on 16 May and the fact that you were a lot younger you were dealt with leniently by the courts on that occasion and given a fine only. You continued to offend, you continued to drive whilst you were drunk and of course you were affected by alcohol on this occasion as well.

These sorts of offences are extremely dangerous and the gravemente of this offence is the manner of your driving. I have heard differing sides of the coin in relation to whether you were doing doughnuts or fishtailing, but that's not so relevant in this instance because you accept that even doing the manoeuvre that you did over the median strip was dangerous. And of course you have accepted the facts and they are sufficient to constitute reckless driving in any event.

Duncraig is a relatively quiet suburban area. I am not familiar with it to any great extent but from listening to the facts it was a sustained police chase down many streets but only came to a halt when you ended up in a cul-de-sac with no way of extricating yourself. I accept that there was noone else around and that the traffic was minimal and I have heard from the sergeant about the other circumstances at that time.

You were travelling at an immense speed; you were travelling at double the speed limit in a residential area. It was a built-up residential area and I am having regard to that fact. That increases the seriousness of the offence and increases the particular potential for harm in these circumstances.

I have carefully had regard to all of the sentencing options available to me. Given your record I have decided that a term of imprisonment is appropriate. In my view there needs to be an extremely strong message sent to the community that those who choose to continually abuse the law, consume alcohol, let alone lead the police on pursuits through suburban streets, need to get a strong message and need to be punished.

Given the sentencing options available to me I have decided that a fine hasn't worked for you in the past and given what I have heard from Mr Donaldson that you are pre-contemplative but open to addressing your issues, and I have also heard that they are under control, I wouldn't have thought that there is anything to be achieved on an order anyway.

In my view the offence is so serious that some of your personal circumstances just dissolve into the background in any event. I acknowledge that a term of immediate imprisonment is at the high end of outcomes for this sort of offence. However I have decided that it is justifiable and that it is appropriate, given your record and the aggravating features for this offence.

I have considered a term of suspended imprisonment quite carefully for this offence as well. However on balance I have decided that it is not appropriate, given your disregard for the law, your prior conviction for reckless [driving] and your propensity to drive whilst you are affected by alcohol and expose the community to risk.

Therefore, having given you a discount for a plea of guilty and having regard to the Sentencing Act as well, you are sentenced to a term of imprisonment of six months and one day in relation to charge 9933. Your licence will be disqualified for 12 months which is cumulative. You are fined $300 for failing to stop, $800 for the drink driving and there will be another disqualification of 12 months. There is no order as to costs (appeal ts 7 9).

12 It was not entirely clear from those remarks that the magistrate was excluding the disputed facts from consideration. Rather, she seemed to be suggesting that the dispute did not matter because the admitted Uturn was dangerous in any event and because the chase was also admitted.

13 Clearly the magistrate took a serious view of the circumstances of the offence. As she noted, this offence involved driving at speed through a residential area. This involved risk of harm to others including, of course, the passenger in the vehicle.

14 Her Honour also considered the past record of the appellant to be a significant factor. That record included a previous reckless driving offence in 2007 for which the appellant had received a fine of $250. There were also three offences of driving with excess alcohol in the blood on his adult record between 9 April 2007 and 7 January 2009. He had also been fined for those offences. There was also the further offence of the same type that had been committed in January 2011 and that was dealt with at the same time as the present matter. The appellant had never been imprisoned or received a sentence of suspended imprisonment.

15 The relevant principles applying to an appeal against sentence are well known. They are conveniently summarised in Wilson v The State of Western Australia [2010] WASCA 82. That case related to an appeal to the Court of Appeal under pt 3 of the Criminal Appeals Act 2004 (WA) but the principles are materially the same for appeals from magistrates under pt 2 of the Act.

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

17 It is not enough that an appellate court considers that it would have imposed a different sentence. It must be established that there has been some error in the exercise of sentencing discretion: House v The King [1936] HCA 40; (1936) 55 CLR 499. The discretion that the law invests in sentencing judges is of vital importance in the administration of justice: Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665.

18 In order to determine if a sentence is manifestly excessive it is necessary to view it in the light of the maximum penalty prescribed by law for the offence, the standard of sentencing customarily observed for that type offence, the level of seriousness of the circumstances of offending and the personal circumstances of the offender: Chan (1989) 38 A Crim R 337 and McDougall v The State of Western Australia [2009] WASCA 232.

19 A sentence of imprisonment to be immediately served is a sentence of last resort: see s 39 of the Sentencing Act 1995 (WA). It should not be imposed unless other sentences are found to be inappropriate. In the present case the magistrate considered other options. She excluded, amongst others, what she described as 'other orders'. She did so because she said that the appellant had his issues, which presumably was a reference to alcohol, under control. This seems to mean that a less serious option was being excluded because the appellant had taken positive steps to rehabilitate himself.

20 As to the existence of that rehabilitation, it might have been open to question the extent and durability of the appellant's resolve. The respondent has sought to question it today in submissions, but the fact is that the magistrate did not question it. Indeed, she accepted it. If it had been questioned before the magistrate the appellant would have had an opportunity to provide evidence in support of his claims. For that reason it would be unfair to do anything other than accept, as did the magistrate, that the appellant had made significant and effective efforts to address his issues with alcohol use. That was a clearly important factor that needed to be taken into account in determining the appropriate sentence. It was also an important factor in respect of whether suspension of any sentence of imprisonment was appropriate.

21 The magistrate in her comments referred to the appellant's record as disclosing past offences of a similar type and a disregard for the law. Of course the appellant did not come before the magistrate to be sentenced for those past offences, nor were they aggravating in themselves: see s 7(2)(b) of the Sentencing Act. To the extent that the prior record was relevant it went to the appellant's character and to the need for personal deterrence. In that regard it was important to take into account what the appellant had done since the commission of the offences to reform himself. The magistrate did not refer to this with respect to suspending the sentence and it is impossible to reconcile the final sentence that was imposed with an appropriate consideration of that factor.

22 The appellant was and still is a young man. His prospects of rehabilitation appeared, and apparently continue, to be good. One of the outcomes to which sentencing strives is to prevent reoffending. This can sometimes be better achieved by a noncustodial option. Whilst reckless driving is a serious offence and this was a relatively serious example of it, it does not always call for imprisonment.

23 There is a wide variety of circumstances in which this offence can occur: Hume v The Queen [2000] WASCA 306; (2000) MVR 203 [17] (Wheeler J). Examination of other cases does not disclose a defined range in respect of these types of offences. In any event, the range of sentences customarily imposed for an offence is only one relevant factor to consider. There may be cases where the circumstances justify a sentence outside such a range. A range does not establish the limits of sentencing discretion: Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520 [54] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).

24 The maximum penalty for a second reckless driving offence is imprisonment of up to 9 months' imprisonment or a fine of up to $3,000 (s 60(e)(b) Road Traffic Act). Often fines are imposed for this type of offence, even for a second offence: Scalisi v Davies (1992) 16 MVR 101.

25 A number of other cases were referred to by the respondent. They included McDonald v White [2007] WASCA 213, O'Driscoll v The State of Western Australia [2011] WASCA 156 and Palmer v Dwyer [2010] WASC 28. However, those cases all involved offending that included additional aggravating features not present here; for example, driving whilst disqualified or in breach of a suspended sentence of imprisonment. They are of limited assistance.

26 In my view a suspended sentence was clearly open here. It could not properly be excluded on the accepted facts and particularly having regard to the reformative efforts which the magistrate accepted had occurred. Those efforts reduced the need for the sentence to incorporate a significant personal deterrent. That is not to say that a suspended sentence may not also be an effective personal deterrent. In these circumstances I am of the view that the magistrate erred and the appeal must therefore be allowed.

27 I turn to the question of resentencing. Mr McKenzie tells me that the appellant's girlfriend has recently had the baby, that the appellant continues to work in his apprenticeship and that he and his girlfriend are still living with his parents. Importantly, he has continued to avoid alcohol.

28 I also take into account that before being released on bail pending the determination of this appeal the appellant served 18 days in prison. I am told that had a very significant impact on him. In those circumstances it is clear to me that a suspended sentence remains the appropriate option and that is the sentence I intend to impose.

29 Albeit that the appellant appears to have adequately managed his past alcohol issues without the assistance of counselling or programmes, there must always be a risk that his resolve will fail. That resolve might be tested by the pressures attendant upon the appellant taking on new responsibilities, both financial and parental. For this reason I consider that there would be benefit in imposing supervision and programme conditions. That is an option available to me that was not available to the magistrate.

1. Leave to appeal is granted.
2. The appeal is allowed.
3. The sentence of the magistrate (other than the 12 month drivers licence disqualification) is set aside.
4. In lieu thereof the appellant is sentenced to imprisonment for 6 months and 1 day suspended for 12 months with programme and supervision conditions.