Court of Appeal (WA)|2000-11-27|Before: Mr J, Parker J, Smith J

Dragic v Burrows [2000] WASCA 385 (27 November 2000)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : DRAGIC -v- BURROWS [2000] WASCA 385

Appeal - Driving offence - Third conviction for driving under suspension - Sentence of 14 months imprisonment - Outside range - Sentence quashed and one of 4 months imprisonment substituted

Appeal - Possession of cannabis for own use - Less than 1 gram - Sentence of 3 months imprisonment quashed - Sentence already served - No other punishment substituted

1 ROBERTS-SMITH J: On 10 June 2000 the appellant was driving a Holden Statesman sedan in a westerly direction at Midland when he was stopped by police in relation to another traffic matter. I understand it was a random breath test.

2 It was ascertained that he was at that stage not the holder of an appropriate valid driver's licence for that class of vehicle, his licence having been cancelled for life on 21 February 1991 following a conviction for driving under the influence of alcohol.

3 He was apprehended and escorted to the Midland police station. He was subsequently charged on two complaints: the first with driving a motor vehicle without being a holder of an appropriate valid driver's licence and being legally disentitled to hold one contrary to s 49(1)(a) and s 49(2) of the Road Traffic Act 1974 ("the Act").

4 He was also charged on a second complaint with having in his possession a prohibited drug, namely, cannabis, contrary to s 6 subsection (2) of the Misuse of Drug Act. That latter charge arose out of the circumstances that when he was searched at the police station a small quantity, something less than 1 gram of cannabis, was found in his possession.

5 When he appeared before the learned Magistrate in the Court of Petty Sessions at Midland on 4 August, apparently following an earlier appearance, he maintained pleas of guilty to each of the charges and he was represented by duty counsel who appeared on his behalf on that day.

6 The learned Magistrate imposed a sentence of 14 months' imprisonment upon the appellant in respect of the driving under suspension charge and 3 months' imprisonment in respect of the possession of cannabis charge, the latter to be concurrent with the traffic sentence.

7 The appellant had, as I have said, appeared earlier at the Court to enter his pleas of guilty and on that occasion it appears the proceedings had been adjourned pending the obtaining of a pre-sentence report which was available to the learned Magistrate on 4 August.

8 On 6 October 2000 the appellant obtained leave from Parker J to appeal against the sentences imposed by the learned Magistrate on the grounds broadly that the learned Magistrate had either erred in sentencing the appellant to imprisonment or alternatively had erred in sentencing him to a total of 14 months' imprisonment to be served immediately.

9 Particulars of the grounds were identified as being a failure on the part of the learned Magistrate to properly consider the maximum sentence for the offences, the standards of sentencing customarily observed for offences of that nature, the place in which the criminal conduct in question occupied in the scale of seriousness of crimes of that nature and the appellant's antecedents.

10 Counsel for the appellant today abandons the ground of appeal which contends that the learned Magistrate erred in imposing a sentence of imprisonment at all, at least in relation to the offence of driving under suspension. I use that expression as a shorthand description of the offence. He maintains the submission, however, in relation to the sentence of 3 months' imprisonment imposed in respect of the cannabis offence.

11 In the proceedings before his Worship counsel who then appeared for the appellant submitted that the appellant's difficulties had started in about 1991. It appears that he was diagnosed with schizophrenia and had been subsequently admitted to Graylands Hospital suffering from a psychiatric illness. Reference was made by counsel to the content of the pre-sentence report, which I have read.

12 I do not think it necessary to deal with that in any detail now, suffice to say there were aspects of it which appear to have occasioned or given cause to the learned Magistrate to have some concerns about the appellant as a continuing risk to the community and in relation to what his Worship apparently perceived as the attitude of the appellant to the requirements of the law.

13 There was reference made in the pre-sentence report, for example, to the fact that the appellant had made no particular excuse or given any valid reason for driving whilst serving a life suspension. It noted that he was aware that he was under a driving suspension and continued to drive despite that knowledge, and it observed that he stated at the time that he was apprehended by the police that he was driving from home to the railway station, admitting that he found it difficult to refrain from driving.

14 The content of the pre-sentence report in that regard appears to be reflected also in the submissions made by counsel on behalf of the appellant at the hearing before his Worship.

15 Pertinently to the occasion of driving it appears there was no particular reason for the appellant doing so on that occasion other than a statement that he was driving from his house in Midland to the railway station to catch a train to Perth. According to his counsel, the appellant said that there was no emergency, but he just wanted to get out of the house and do something.

16 Counsel submitted that the appellant had indicated to him the appellant did not view driving as laughing at the Court and said that he was not trying, in his words, to "stuff the court around." He just simply did not appreciate the gravity of it.

17 The most recent conviction of the appellant relevant to the present charges was a conviction on 10 January 2000, which related to offences committed on 10 December 1999. Those offences were driving whilst under suspension and driving with a blood alcohol concentration in excess of 0.05 per cent.

18 In relation to the driving under suspension charge on that occasion, his licence was cancelled and he was disqualified from obtaining a further motor driver's licence for 12 months cumulative on the disqualification. He was also fined $500. In respect of the drink driving charge, he was fined $150.

19 Those offences have to be regarded in the context of the appellant's previous history, both as to traffic and other convictions generally. Again it is not, I think, necessary for me to detail the content of those here; suffice to say that there is a reasonably extensive record of both types of offences from 1992, in respect of criminal conduct, and from 1986, in respect of motor vehicle offences.

20 The most pertinent of those, I think, were a conviction on 20 August 1987 for driving under the influence. He was on that occasion disqualified for 6 months and fined $400. There was a speeding conviction in November 1987, and then again in March 1989 he was convicted of driving under the influence, when he was disqualified again on that occasion for 2 years and fined $1000.

21 On 21 February 1991 he was convicted of driving without a motor driver's licence, that is to say, whilst under suspension, and his licence was further cancelled and he was disqualified for 12 months' cumulative on the previous cancellation and fined $200. On the same occasion he was also convicted of driving under the influence, in respect of which he was fined $1500 and disqualified for life.

22 As was made clear to the learned Magistrate, the appellant was in fact on parole for serious convictions in 1998 of threatening to kill and intending to cause grievous bodily harm. His parole term was due to expire on 13 February 2001. The parole has currently been suspended by the Parole Board as a result of his appearance on the charges before the learned Magistrate.

23 It was said in his pre-sentence report that the appellant's response to his parole order was not satisfactory given the current convictions and offences for which he was sentenced in January 2000, however, he had maintained adequate compliance with his parole conditions, continuing to report as directed and having regular contact with his psychiatrist.

24 Earlier this year he attended for substance abuse counselling and he was reported to have displayed a good knowledge of substance abuse issues and good strategies to address his alcohol and cannabis use if he chose to do so. Again, as was made clear to the learned Magistrate, the two probation orders upon which the appellant was at that time had been breached as a result of continued offending.

25 Counsel for the appellant before the learned Magistrate requested that he consider dealing with the matters by way of fines and allow his parole conditions to continue to try to work in respect of his psychiatric illnesses. The alternative submission was made that if the Court regarded a term of imprisonment as the only option available then consideration should be given to the fact that it would bring into play the balance of his parole.

26 In imposing sentence the learned Magistrate referred first of all to the pre-sentence report and expressed the view that the content of it was not something that would give any encouragement to think that the appellant would not be appearing before a Court again. He correctly observed that the psychiatric or psychological disorders from which he suffers did not prevent him from understanding the process in which he was then involved, and he referred to a sentence of 5 and a half years' imprisonment imposed in the Supreme Court for assaulting a police officer and making threats to kill. The significance of that, other than an observation as to the parole period which was still extant in respect of it, was not otherwise commented upon.

27 His Worship again appropriately took into account the fact that the appellant had pleaded guilty and reiterated that he was mindful of the content of the pre-sentence report but, nonetheless, had concluded that imprisonment was the appropriate penalty. He noted that the appellant was then before the Court for the third time in respect of an offence of driving under suspension and that indeed the last occasion was relatively recent, that being in January of this year.

28 He professed some difficulty in understanding how the appellant could have taken the position that he did not really know the consequences or the enormity of driving under suspension.

29 Having made those remarks he concluded with the observation that a person who was disqualified for life has displayed that he ought not to be driving motor vehicles on public roads and therefore the appropriate penalty was one of imprisonment. Without further comment the learned Magistrate then imposed the sentences of 14 months and 3 months concurrent respectively.

30 In Fernando v Keady, unreported; SCt of WA; Library No 940135; 4 March 1994, Murray J was dealing with an appeal from a sentence of 12 months' imprisonment imposed upon that appellant for an offence of driving without being the holder of an appropriate valid driver's licence. It was the fifth offence of that kind for that offender.

31 In his judgment at p 7 Murray J referred to the reasons for sentence given by the learned Magistrate which included reference to Milentis v Chitty; unreported; SCt of WA; Library No 7826; 4 September 1989, a decision of Walsh J. Murray J said:

"In that case his Honour had occasion to deal with such an offence as this and made for this Court the point which has long been accepted about the seriousness of this offence. His Honour mentioned that a licence to drive a motor vehicle is in a real sense a privilege. He said that those who have the benefit of that privilege are required to undertake their activities with due regard for the law and the general safety and protection of motorists. Those who fail in that regard lose the privilege of the capacity to drive. On that basis, as his Honour said, the law has always regarded the offence of driving whilst under disqualification as being particularly serious offence, certainly in circumstances where it may be seen that the commission of the offence involves a willed defiance of the law, a wilful disobedience of the order of disqualification made on a former occasion by the Court. I would take this opportunity to respectfully endorse and repeat those remarks.

32 As to the factors relevant to an assessment of the seriousness of the particular offence, Murray J said in the same case at p 10:

"In my opinion, in all the circumstances, his Worship was entitled to conclude that the primary consideration in respect of penalty in this case was deterrence and the primary aspect of deterrence which was relevant was the personal deterrence of the appellant; the need to prevent him from continuing to commit such offences.

The Court must then consider the circumstances relevant to the length of the term of imprisonment to be imposed. I have said that such offences are regarded seriously by the law but there is of course room for the consideration of the particular circumstances surrounding the commission of the offence which will bear upon the Court's reaction to its severity. Some have been mentioned in argument. The Court will have regard to the purpose of the driving and whether it was associated with the commission of other offences, or whether indeed there may be some mitigatory aspect to that such as the need, short of a defence of extraordinary emergency, of a relatively compelling nature to drive in a situation of extremity. The nature of the driving itself will, I think, be relevant because it may provide a particular illustration of the point that the offender has lost the privilege to drive by reason of the incapacity to obey the traffic laws. The duration of the driving will certainly be relevant. The time when the suspension or disqualification was imposed, how recent it was, what its duration is, will be matters of relevance."

33 His Honour then went on to point out that having regard to the sort of matters which he had just enumerated, the case then before him, albeit serious, was "nonetheless an unremarkable example of the commission of such an offence." That particular statement is one upon which counsel for the appellant relies in this case and submits that the circumstances here would merit the same description. The sentence of 12 months' imprisonment in that case was set aside and a sentence of 2 months' imprisonment was substituted for it.

34 In Krakouer v Durka, unreported; SCt of WA; Library No 980595, 14 October 1998, Miller J was dealing with a fifth offence of driving under suspension. The appeal had been brought from a sentence of 4 months' imprisonment. There was also a further 2 months' imprisonment cumulative imposed in respect of an offence of escaping from legal custody. In that case the question on appeal was whether the sentence should have been suspended. Reference was made to Milentis and particularly dealing with the seriousness of driving under suspension offences generally to the notably strong bench of five Judges sitting in the Full Court of the Supreme Court of South Australia in Police v Cadd & Ors [1997] SASC 6187; (1967) 69 SASR 150. The effect of that decision was that in most cases it would be rare for anything other than an immediate term of imprisonment to be appropriate for an offence of driving under suspension, particularly a second or subsequent offence of that kind.

35 In Krakouer, Miller J held that no error had been demonstrated in the imposition of a sentence of 4 months' imprisonment although there was error in respect of the cumulative 2 months imposed in respect of the offence of escaping legal custody.

36 In Calway v Wiebe, unreported; SCt of WA; Library No 990001; 13 January 1999, Miller J was again dealing with an appeal in respect of a driving under suspension offence in which the central issue was whether an order suspending a term of imprisonment ought to have been made. That case concerned a third offence of driving under suspension as well as a charge of driving under the influence. A sentence of 4 months' imprisonment was imposed in respect of the driving under suspension and it was an immediate term.

37 Given that the circumstances of the present case, (and it seems to be common ground) result in the fact that the question of suspension of imprisonment here is and was not a live option, the observations made with respect to suspension of a term of imprisonment are not presently apposite. What is apposite simply is, as counsel for the appellant puts it, the end result, namely that on the appeal Miller J concluded that there was no error shown in the imposition of a sentence of 4 months' imprisonment and indeed at p 11 his Honour suggested that the circumstances may have indicated something of a discount had been allowed by the learned Magistrate in that case from a sentence of what might otherwise have been one of 6 months' imprisonment.

38 Two cases were particularly relied upon by the respondent here. The first of those is the case of O'Brien v Ritchie, unreported; SCt of WA; Library No 990123; 17 March 1999. That appeal involved a third conviction for driving under suspension in which once again the question was whether or not the sentence of 4 months' imprisonment which had been imposed ought to have been suspended.

39 The appeal was allowed by McKechnie J on the basis that the Magistrate had failed properly to consider the possibility of suspending the sentence, his Honour concluding that suspension was appropriate, having regard to the plea of guilty, the fact that there was good reason to think the appellant would not offend in future, and particularly given the effect of the fact that he had been incarcerated in maximum security whilst on remand. Once again the salient feature, it seems to me, of that case simply lies in the quantum of the term of imprisonment imposed.

40 In Marshall v Spent [2000] WASCA 114, Miller J was dealing with a second offence of driving without a motor vehicle driver's licence, together with an offence of driving under the influence. The appeal was against a sentence of 4 months' imprisonment imposed on each count with concurrent periods of disqualification. On appeal again it was argued that immediate imprisonment was excessive. His Honour dismissed the appeal, finding no error had been demonstrated and that the 4 months' imprisonment was entirely within the range for an offence of that kind.

41 In the present case the learned Magistrate had proper and appropriate regard to the appellant's pleas of guilty, the pre-sentence report and the nature and circumstances of the appellant's psychiatric disorders, properly recognising that they would not prevent him understanding the situation in which he then found himself. His Worship correctly had regard to the fact that the appellant was on parole and the effect of that. It cannot reasonably be argued that the Magistrate was wrong in coming to the conclusion that a sentence of imprisonment was the only appropriate penalty and counsel for the appellant has quite properly abandoned that ground of appeal at this hearing.

42 It is clear that the Magistrate was not prepared to give much credence to the appellant's claim that he had not appreciated the consequences nor enormity of driving under suspension and one can readily understand why that was so. The appellant's history of criminal and traffic convictions demonstrates, as his Worship clearly considered, an attitude of disregard for the law. Even taking full account of his psychiatric problems this is clearly a case in which personal deterrence must figure large, a view obviously taken by the Magistrate.

43 The bulk of his Worship's brief sentencing remarks were taken up with his reasons for determining that imprisonment was the appropriate punishment. He gave no reasons at all for fixing the term of 14 months, a term which, as Mr Sutherland points out, was effectively one of 15 months if regard is had to time previously spent in custody. Apart from the sentence itself there is no indication of where his Worship placed the appellant's offence on this occasion in the category of offences of this type nor why. It is apparent from a consideration of the other cases that the term of imprisonment was considerably beyond the range, even taking a broad view of it, of from 2 to 6 months, which appears to be the norm for offences of this kind.

44 Although the circumstances of this offence were certainly sufficiently serious both to warrant the imposition of imprisonment and a term towards the higher end of the appropriate range, there was nothing in them nor in the appellant's own background or antecedents, which would have justified a term between two or three times higher than that. The actual term was, in my view, so disproportionate to the circumstances as to manifest error, see Veen v R (No 2) (1987 [1988] HCA 14; 1988) 164 CLR 465 at 477 per Mason CJ, Brennan, Dawson and Toohey JJ.

45 Similar observations may be made about the sentence of 3 months' imprisonment imposed in respect of the cannabis offence. In his sentencing remarks the Magistrate made no reference whatsoever to the facts in respect of that offence nor his reasons for imposing a sentence of imprisonment rather than a fine, much less a sentence of 3 months' imprisonment. Even a cursory consideration of other cases indicates that a small fine is the usual disposition.

46 The cases, or some of them, are conveniently summarised in the judgment of McKechnie J in Bidwee v Robinson, unreported, SCt of WA; Library No 990197; 4 March 1999. In that case his Honour was dealing with an appeal in respect of sentences imposed following the appellant having pleaded guilty to two charges under the Misuse of Drugs Act. The first was possessing a prohibited drug; namely cannabis, it being a quantity of approximately 2 grams, and the second was possessing a smoking utensil in connection with the smoking of prohibited drugs.

47 In respect of the cannabis charge the appellant was fined $500 and in respect of the possession of an implement charge he was fined $1000. He had a record for such offences as an adult. His Honour said (at p 4):

"The cases would suggest that the range of offences for what might be described as a first offence are as decided by Owen J in Burrows v Merdzan, unreported; SCt of WA; Library No 8872; 10 May 1991, between $50 to $150.

While the range of offences for a second offence is less clear, in my opinion, the range from my reading of the authorities would be somewhere between $100 and $300 to $400 depending on the circumstances.

When a judicial officer proposes to go outside the range of penalties most commonly imposed for a particular offence, he or she has an obligation to explain what special circumstances have been taken into account to justify the departure from that range. In this case the Justices gave no reasons as to why they considered the fines of $500 and $1,000 respectively were necessary.

There was nothing in the facts which took the matter beyond the normal range in respect of each offence."

48 One may make the same observations in respect of the present case.

49 His Honour in Bidwee v Robinson set out a table of cases dealing with possession of cannabis and/or possession of a smoking implement from which it is clear that a fine is the ordinary disposition in respect of such offences, even for second or subsequent offences. I note that in the table his Honour refers to two decisions of Ng C, they being Walsham v Bird, unreported; SCt of WA; Library No 920277; 7 May 1992, in which a term of imprisonment of 6 weeks in respect of possessing 10 grams of cannabis is shown, and the case of Galby v Wood, unreported; SCt of WA, Library No 920261, 8 May 1992, referring to a sentence of 3 months' imprisonment cumulative for possessing three cannabis cigarettes and half a gram of loose cannabis.

50 In fact in those cases the sentences were quashed by the learned Commissioner. In Walsham v Bird for example he pointed out that the cases established that even in the case of second and third offences a term of imprisonment is not imposed. In that case, similarly to the present, the appellant had served the sentence in respect of the cannabis possession.

51 The learned Commissioner said in respect of that that he would have been disposed to set aside the term of imprisonment and substitute a fine of $250, bearing in mind the quantity of cannabis involved, but having regard to the fact that the appellant had served the whole of the sentence it would be futile for him to make that order. His Honour accordingly allowed the appeal and set aside the sentence of imprisonment but did not impose any alternative sentence.

52 In Galby v Wood the learned Commissioner again set aside the sentence for possession of cannabis and expressed the view that the sentence of 3 months' imprisonment was unreasonably excessive and against a sound discretionary judgment. Again, rather than remit the matter to the justices he set aside that term of imprisonment of 3 months and substituted a fine of $250.

53 Against this background there would, I think, need to be something quite extraordinary about the circumstances of an offence of possessing less than 1 gram of cannabis leaf material for one's own use to justify a term of imprisonment at all, much less a term of 3 months.

54 One is left with the impression (which was reinforced to some extent by the submissions of counsel for the respondent) that having decided to sentence the appellant to imprisonment for 14 months for the driving under suspension offence, the learned Magistrate possibly took the view that a concurrent sentence of 3 months' imprisonment for the cannabis offence would be of no moment.

55 If that was his view it would, of course, have been an entirely wrong approach. The sentence of 3 months would show on the appellant's criminal record as reflecting a most serious cannabis offence and that could well have repercussions for him in future. Furthermore, it was a sentence which even though concurrent had to be served so that if for some reason the driving under suspension sentence was set aside he would still be left with that; but fundamentally it was wrong because it was wholly disproportionate to the nature and circumstances of the offence.

56 For these reasons both sentences of imprisonment must be set aside. Having regard to all of the matters put to the learned Magistrate both as to the circumstances of the offence and the appellant and to the general range of sentences imposed for offences of these types I would make the following disposition. For the driving under suspension offence, noting in particular that it was not attended by any aggravating feature of driving and for the fact that there was no other incidence of driving since December 99 and as against those considerations that the occasion of driving was certainly not trivial and the reason given for it demonstrated a continuing disregard for the law, I think a term of 6 months' imprisonment would be an appropriate starting point.

57 Allowance should be made for the appellant's plea of guilty and for the other factors personal to him as set out in the pre-sentence report mentioned by counsel before the learned Magistrate and amplified briefly by Mr Sutherland before me. Making due allowance for those factors and allowing also for time already spent in custody, I would substitute a term of 4 months' imprisonment.

58 That, of course, is in respect of the charge of driving under suspension. For the cannabis offence, given that the sentence has already been served I do not propose to substitute any other punishment but I do set aside the sentence of 3 months' imprisonment imposed by the learned Magistrate in respect of that. The other orders made will stand. The appeal will accordingly be allowed.

Dragic v Burrows [2000] WASCA 385

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Dragic v Burrows [2000] WASCA 385 (27 November 2000)

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