Supreme Court of WA|2007-03-19|Before: Martin CJ

FINDLAY -v- THE STATE OF WESTERN AUSTRALIA [2007] WASC 61 (19 March 2007)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : FINDLAY -v- THE STATE OF WESTERN AUSTRALIA [2007] WASC 61

Jurisdiction : MAGISTRATES' COURT OF WESTERN AUSTRALIA

File No : AR 1091 of 2006, AR 1092 of 2006, AR 3679 of 2006, AR 3680 of 2006, AR 3681 of 2006

Appeal - Criminal law and procedure - Sentencing - Convictions for driving whilst excessively under the influence of alcohol, driving whilst motor driver's licence suspended and breach of bail terms - Two years imprisonment without parole eligibility - Consideration of whether a parole order should have been made and whether the sentences imposed were manifestly excessive - Eleven prior convictions for driving whilst under the influence of alcohol and whilst under suspension and several breach of bail offences - Turns on own facts

Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321

Messiha v Royce [2004] WASCA 87

Pickett v The State of Western Australia [2004] WASCA 291

1 MARTIN CJ: The appellant's sole ground of appeal is that the Magistrate who sentenced him to a total term of 2 years imprisonment did not order that he be eligible for parole. For the reasons which follow, in my opinion the appellant has failed to establish that the Magistrate erred in not ordering eligibility for parole or that the sentences imposed upon him were manifestly excessive.

2 The appellant was born on 21 June 1962 and is therefore 44 years of age. He has gone by various names during the course of his life.

3 The appellant is a painter and decorator who has apparently been in stable employment with one employer, interrupted by the periods of imprisonment he has previously served and to which I will refer shortly. He has a child who is now almost 12 months old. Prior to his imprisonment he was living with and supporting his partner and their child.

4 The appellant has an appalling record of offences of exactly the same kind as the offences that lead to his imprisonment on this occasion; namely, driving whilst under the influence of alcohol, driving while his motor driver's licence was suspended and breaching the terms upon which he had been granted bail. The first offence of driving with excessive alcohol in his blood was committed in 1985. Thereafter, the appellant stayed out of trouble for almost 10 years. However, since 1995 he has regularly driven whilst under the influence of alcohol and whilst his motor driver's licence has been suspended. By the time he came before the Magistrate on the charges the subject of this appeal, he had been convicted of driving whilst under the influence of alcohol or with excessive alcohol in his blood and whilst his motor driver's licence was suspended on 11 separate previous occasions.

5 The appellant was first sentenced to imprisonment in 1997, although the sentences of imprisonment imposed upon him on that occasion were suspended. In August 2002 he was sentenced to further terms of imprisonment, including a term of 12 months, which he served until approximately the middle of 2003. In March 2004 he was again convicted of driving whilst under the influence and whilst his motor driver's licence was suspended and was again sentenced to terms of imprisonment, which he served until approximately April 2005.

6 By reason of his repeated offending the appellant's driver's licence has been suspended almost continuously since 1995 and in March 2004, his licence was suspended for life.

7 The first group of offences the subject of this appeal were committed on 3 January 2006. At 7.35 am on that day (which was a Tuesday) the appellant was driving a Ford Falcon panel van on Albany Highway, Maddington. It might reasonably be inferred that there was a significant quantity of traffic on that road at that time. Following his apprehension, the appellant underwent a Breath Analysis Test which gave a reading of 0.253 per cent calculated to have been 0.244 per cent at the time of driving.

8 Following his arrest on 3 January 2006, the appellant entered into a bail undertaking to appear at the Armadale Magistrates Court on 6 January 2006. He breached that undertaking by not attending on 6 January 2006 or any time thereafter - until he was again arrested in April 2006.

9 The second group of offences were committed on 18 April 2006. On that day (which was also a Tuesday) at approximately 1.45 pm, the appellant drove a Mitsubishi hatchback on Belmont Road, Kenwick. He was apprehended and subjected to a Breath Analysis Test which gave a reading of 0.172 per cent calculated to have been 0.160 per cent at the time of driving.

10 The appellant was charged with driving whilst under the influence of alcohol and whilst disqualified from a holding or obtaining a motor driver's licence in respect of each of the two occasions to which I have referred. He was also charged with breaching the terms of the bail he was granted on 3 January 2006.

11 These charges were read for the first time when the appellant appeared in the Magistrates Court on 28 April 2006. He pleaded guilty to each of the charges on his first appearance.

12 He was represented by a lawyer who did not dispute his "horrendous record". That concession was appropriate, given that the charges were the twelfth and thirteenth occasions upon which the appellant had appeared before a court charged with driving under the influence of alcohol and whilst under suspension.

13 In the course of the interchange between the Magistrate and counsel for the appellant, the Magistrate made a number of observations relating to the failure of previous sentences that had been imposed upon the appellant to deter him from driving whilst intoxicated and under suspension.

14 The Magistrate then proceeded to impose sentence and referred to the appellant's previous record. He referred also to the circumstances of the offence and in particular, the magnitude of the blood alcohol reading relating to the offence committed on 3 January 2006 which, in the view of the Magistrate, would have made the appellant and the vehicle a danger to the public. The Magistrate then expressed the view that having considered the various sentencing options open to him he had concluded that only a term of imprisonment was appropriate.

15 The Magistrate then referred to the totality principle and observed that the maximum term of imprisonment available to him on the various offences was a period of 4 years and 3 months (after taking into account the transitional provisions of the 2003 legislation). He expressed the view that a period of 4 years and 3 months would be too much.

16 The Magistrate then observed that, in his view, it was appropriate to impose the maximum terms of imprisonment available on each of the offences of driving under the influence and whilst under suspension, but that he would make the terms of imprisonment for driving whilst under suspension concurrent with the terms of imprisonment imposed for driving whilst under the influence.

17 The Magistrate also imposed a term of 3 months imprisonment for the offence of breaching the terms of the appellant's bail and directed that sentence to be concurrent with the other sentences imposed, with the result that the appellant received a head sentence of 2 years imprisonment.

18 On the subject of parole, the Magistrate observed that while he had considered making a parole order, he had decided against making such an order, "given the circumstances of the offences and given the previous matters".

19 The appellant advanced the following arguments in support of submission that the Magistrate had erred by not ordering that he be eligible for parole:

1. He had previously been given parole and had never breached a parole order.

2. He has a stable employment record and a dependent family, and he and his family will be prejudiced the longer he is in prison.

4. An alleged tension between the Magistrate's observation that a 4 year sentence would be too much and the fact that he then imposed a sentence of 2 years imprisonment without parole, which is the equivalent of a 4 year sentence with parole.

I will deal with each of these contentions in turn.

20 Dealing firstly with the appellant's previous record whilst on parole, s 89(4)(c) of the Sentencing Act 1995 (WA) ("the Sentencing Act") provides that a failure to comply with a previous parole order is one of the factors that might be taken into account by a court when deciding not to make a parole eligibility order. However, it by no means follows that previous successful completion of periods of parole produces a conclusion that parole eligibility should again be ordered.

21 While an offender's previous performance on parole is properly taken into account when a decision is made under s 89 of the Sentencing Act, it is clear that the Magistrate was well aware of the appellant's history while on parole, as he expressly referred to it during the course of the hearing. It cannot therefore be said that the Magistrate failed to take that factor into account. The Magistrate appears to have been more significantly influenced, and reasonably so, by the fact that previous periods of parole do not appear to have had any positive effect in deflecting the appellant from what is now a well established course of criminal conduct.

22 Turning then to the appellant's family circumstances and employment history, those matters were specifically referred to in the course of the hearing and by the Magistrate in the course of his sentencing remarks. It cannot therefore be said that he failed to take those matters into account. Nor can it be said that those matters compel any conclusion that a parole eligibility order should be made.

23 As the Magistrate observed (correctly in my opinion), in cases such as the appellant's, where a repeated history of flagrant disregard for the safety of other users of the road is demonstrated, the protection of the public must be a dominant concern when sentences are imposed. Driving on a busy highway at 7.35 am with a blood alcohol level of 0.244 poses an extreme and imminent danger to other road users. It is entirely fortuitous that no serious injury was caused to either the appellant or other road users. The appellant cannot reasonably expect the courts, as representatives of the community, to give substantial weight to the interests of his family, when he has shown such conspicuous disregard for the safety of the many families whose lives he has endangered by his reckless behaviour over many years.

24 The appellant's arguments with respect to parity of sentencing were not sustained by any reference to other comparable cases. Subject to the question of whether some discount should have been allowed for the fact that the appellant pleaded guilty to each of the charges brought against him on the first available occasion (a matter to which I will return), the Magistrate's conclusion that the maximum penalty was appropriate for each of the offences of driving under the influence and whilst under suspension, was entirely justifiable having regard to the appellant's deplorable record and the circumstances of the two incidents to which I have referred. Further, the Magistrate's application of the totality principle, which led him to order that three of the five sentences he imposed be served concurrently, was entirely conventional and appropriate.

25 It should also be observed that when the question of parole eligibility arises under s 89, that question will, by its very nature, be determined much more by reference to the particular circumstances of the offender than by reference to a comparison with the circumstances of other offenders and the disposition of their cases.

26 The appellant's final submission was that there is an inconsistency between the observations made by the Magistrate to the effect that a sentence of 4 years was too much and the sentence which he proceeded to impose of 2 years without parole (which is the equivalent of a 4 year term with eligibility for parole). This submission ignores the fact that there are different issues involved when imposing sentence, as compared to those involved when determining whether or not an order will be made for parole eligibility.

27 It is well established that there is no direct relationship between the length of the term of imprisonment properly imposed and the question of whether or not a person is to be made eligible for parole - see for example Shaw (1989) 39 A Crim R 343. The determination of the length of the term of imprisonment to be imposed is a decision to be made quite separately and distinctly from the determination of whether or not a person is to be made eligible for parole. So, it would be an error in principle to adjust the length of the term of imprisonment upwards or downwards because of the decision that was to be made in relation to parole eligibility.

28 It follows that from the perspective of sentencing principles, comparing a term of 4 years imprisonment with eligibility for parole with a term of 2 years imprisonment without eligibility for parole is not comparing like with like. The question of whether the sentences imposed in respect of the five offences dealt with by the Magistrate would, if made cumulative, offend the totality principle, was a question properly addressed by the Magistrate without regard to the quite separate and subsequent decision of whether or not to make a parole eligibility order. That latter decision is to be made having regard to, amongst other things, the factors specifically identified in s 89 of the Sentencing Act. Accordingly, there is no tension whatever between the Magistrate's determination that three of the five sentences he was imposing should be served concurrently and the decision to refuse eligibility for parole.

29 In addition to the issues raised by the appellant, I have given general consideration to the Magistrate's decision to refuse to order that the appellant be eligible for parole. The making of parole eligibility orders is of course governed by s 89 of the Sentencing Act. That section does not contain any presumption or predisposition either for or against the grant of parole - see Messiha v Royce [2004] WASCA 87; Pickett v The State of Western Australia [2004] WASCA 291. Section 89(4) provides that a court may decide not to make a parole eligibility order if at least two of four factors are present. Those four factors are:

(b) the offender has a significant criminal record;

30 In this case, although the Magistrate did not specifically enunciate the reasons for his refusal of parole in terms of the specific factors identified in s 89(4), it is clear from reading his sentencing remarks as a whole that he concluded that the offences were serious and that the appellant had a significant criminal record and that those were the matters that caused him to refuse parole eligibility. Both of those conclusions were open to him, and indeed, on the material before him, inevitable. Accordingly, at least two of the four factors identified by s 89(4) were present, with the result that the Magistrate had express legislative sanction for the refusal of a parole eligibility order. In that circumstance, the appellant bears a heavy onus to show that the exercise of the discretion specifically conferred by the statute miscarried. The appellant has failed to show any such error.

31 I have also given consideration to the question of whether the sentences imposed upon the appellant were manifestly excessive - having regard at least in part to the fact that the appellant was not legally represented on the appeal. I have in particular considered whether the Magistrate's decision to impose the maximum terms of imprisonment available in respect of each of the offences of driving whilst under the influence and whilst under suspension contravenes the requirements of s 8(2) of the Sentencing Act, which provides that a plea of guilty is a mitigating factor and that the earlier in the proceedings it is made, the greater the mitigation. Further, various decisions of the Court of Appeal establish that, at least in the case of indictable offences, a fast-track plea of guilty usually results in a benefit in the form of a reduction of a sentence that would otherwise have been imposed within the range of 20 per cent to 35 per cent - see for example H v Western Australia [2006] WASCA 53; (2006) 163 A Crim R 151 at [9] - [12].

32 On the face of it, the Magistrate's imposition of the maximum penalties available to him on each of the counts of driving under the influence of alcohol and whilst under suspension arguably failed to give effect to s 8(2) of the Sentencing Act. However, there are a number of reasons why, in the circumstances of this case, that does not appear to me to give rise to appellable error.

33 The first reason is that this is not a case in which the Magistrate could have overlooked the fact that the appellant pleaded guilty on the earliest available occasion. The Magistrate was well aware that it was the appellant's first appearance on the charges, when he read the charges to the appellant and recorded his pleas. Accordingly, this is not one of those cases when it could be suggested that the fact of an early plea was overlooked.

34 Secondly, while s 8(2) provides that a plea of guilty is a mitigating factor, and the cases provide guidance as to the extent of the discount usually given, whether the mitigating factor will in fact result in a reduction of sentence, and the extent of that reduction, will depend critically upon all the facts and circumstances of the particular case and cannot be constrained by hard and fast rules. So, in cases where an offender is caught red handed and has no possible avenue of defence, an early plea of guilty may simply reflect an offender's recognition of the inevitable, rather than show remorse or contrition. In those circumstances, an early plea of guilty may reflect nothing more than an appreciation of the inevitable outcome of the proceedings and not reveal any particular insight or perception of the significance of the offender's misconduct.

35 This was such a case. The appellant was caught red handed on each of the two occasions giving rise to the charges. There was no conceivable avenue of defence open to him. Reviewing the sentencing proceedings as a whole, I conclude that his early pleas of guilty reflected nothing more than a recognition of the inevitable outcome of the charges and did not provide any evidence of remorse or contrition, nor any evidence of insight into the seriousness of his offending. Accordingly, in the particular circumstances of this case, it seems to me to have been open to the Magistrate to have concluded that the sentences to be imposed on the appellant should not be reduced because of his early plea of guilty.

36 Thirdly, even if I had formed a contrary view and concluded that some discount from each of the maximum sentences imposed was appropriate because of the early plea of guilty, before the appeal could be allowed on that ground, it would have to be established that the sentences imposed were excessive (Criminal Appeals Act 2004 (WA) s 8(1)(iii)). In the present case, the effective head sentence imposed by the Magistrate was a sentence of 2 years imprisonment. As I have observed, he arrived at that period after applying the totality principle, having regard to a maximum available term of 4 years and 3 months. An effective head sentence of 2 years could have been arrived at in a variety of ways; for example, by imposing sentences of 9 months imprisonment on each of the 2 counts of driving whilst under the influence, cumulative upon each other, and also imposing sentences of 9 months imprisonment on each of the counts whilst driving under suspension, but making those sentences concurrent with each of the offences of driving under the influence, and then imposing a term of 3 months imprisonment for breach of bail, cumulative upon the other sentences. Given that the breach of bail was a separate event which occurred some days after the first driving offences, such an approach would have been entirely consistent with principle and a proper exercise of the sentencing discretion. The result of such a group of sentences would have been identical to the sentences in fact imposed. Rearranging the sentences in this way on appeal would only have been "tinkering" contrary to established principle - see, for example, Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 at 340 - 341.

37 For these various reasons the sentences imposed by the Magistrate were not affected by error nor manifestly excessive and the appeal must be dismissed.

FINDLAY -v- THE STATE OF WESTERN AUSTRALIA [2007] WASC 61 (19 March 2007)

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FINDLAY -v- THE STATE OF WESTERN AUSTRALIA [2007] WASC 61 (19 March 2007)

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