HARWIG -v- MYERS [2018] WASC 196 (26 June 2018)

At 12.02 pm on 12 May 2017, the accused drove a Holden Astra sedan, registered number 1GFJ522 in a southerly direction on Bussell Highway, Margaret River. The accused hit a kerb a number of times whilst turning at the roundabout at Boodjidup Road. The accused was stopped by police. It was ascertained that she had consumed alcohol.

As a result, she was conveyed to the Margaret River Police Station, where she underwent a breath analysis test, giving a reading of .166 grams of alcohol, calculated back to .159 grams. She was served with a disqualification notice at the time.

1. The disqualification notice referred to in the facts was a notice issued to the appellant under s 71C RTA on the basis that she was suspected of committing an offence under s 63, disqualifying her from holding or obtaining a driver's licence for a period of two months from the date of receipt, unless the notice was revoked.[1] It was not suggested that the notice had been revoked.
2. The appellant had a history of offending. All of the previous convictions were for offences under the RTA, and included a conviction in the Mandurah Court of Petty Sessions on 25 February 2003 for an offence of driving under the influence of alcohol, contrary to s 64(1) RTA. The other offences were for careless driving (s 62 RTA; 4/9/2001), driving while having a blood alcohol content of or above 0.08 g of alcohol per 100 ml of blood (two convictions under s 64(1) RTA, being on 4/9/2001 and 1/12/2008), driving while having a blood alcohol content of or above 0.05 g of alcohol per 100 ml of blood (s 64AA(1) RTA; 14/6/2007) and driving a motor vehicle while not authorised to do so (s 49(1)(a) RTA; 1/12/2008). For the previous offence of driving under the influence of alcohol (25/2/2003), the appellant was fined $800 and disqualified from holding or obtaining a licence for nine months. The most significant penalty that had been imposed on her was a fine of $1,200 and disqualification for 10 months for the s 64(1) offence on 1 December 2008.
3. Because of the prior conviction for an offence of driving under the influence of alcohol on 25 February 2003, the conviction on 8 June 2017 was for a second offence.
4. The penalty to which the appellant was liable for a second offence under s 63(1) is specified in s 63(2)(b) as follows:

a fine of not less than 42 PU or more than 70 PU or to imprisonment for 9 months; and, in any event, the court convicting that person shall order that he be disqualified from holding or obtaining a driver's licence for a period of not less than 30 months.

1. 'PU' is an abbreviation for penalty units, each penalty unit being the equivalent of $50.[2] Therefore, the appellant was liable to a fine of not less than $2,100 and not more than $3,500. In addition, the appellant was liable to a minimum licence disqualification of 30 months.
2. The Justices imposed a fine of $2,100 and made an order disqualifying the appellant from holding or obtaining a driver's licence permanently.[3]

An ancillary issue - reference to cancellation of the licence

1. The Justices also stated that 'the licence is cancelled under s 22 of the Road Traffic Act.' It is not clear whether they were purporting to make an order or stating what they believed to be the effect of that section. In light of the manner in which the appeal has been dealt with, it is not necessary to resolve that issue. However, it is appropriate to note that there is no such provision in the RTA (nor was there at the time of sentencing). The provision the Justices appear to have had in mind was a section of the Road Traffic (Authorisation to Drive) Act 2008 (WA) which was repealed on 24 October 2016 by s 19 of the Road Traffic Amendment (Alcohol Interlocks and Other Matters) Act 2015 (WA).
2. The former s 22 of the Road Traffic (Authorisation to Drive) Act 2008 provided that, if a person was disqualified from holding or obtaining a driver's licence upon being convicted of a prescribed offence (which included an offence under s 63 RTA), and the person had previously been convicted of a prescribed offence, any driver's licence held by that person was cancelled by force of that section. It was a cancellation by force of the statute and did not require or authorise any order to be made by the court.
3. When s 22 of the Road Traffic (Authorisation to Drive) Act 2008 was repealed, a similar statutory scheme was enacted in the form of regulations 53A and 53B of the Road Traffic (Authorisation to Drive) Regulations 2014 (WA).[4] The scheme provides for cancellation of a driver's licence by force of reg 53B in the same circumstances that applied under the former s 22 of the Road Traffic (Authorisation to Drive) Act 2008 in relation to disqualification following a conviction for an offence under s 63 RTA. Again, it does not require or authorise the making of any order by the court. That is not to say, however, that it is inappropriate for a court to state the effect of the statutory scheme for the benefit of an offender who is being sentenced.

1. The appeal is brought under s 7 of the Criminal Appeals Act 2004 (WA), being an appeal against a decision of a court of summary jurisdiction.[5]
2. The appeal was commenced after the appellant was refused an application for an extraordinary licence and the presiding magistrate brought to her attention that the Justices may have erred in imposing permanent disqualification. There followed a misconceived attempt to have the sentence corrected by a magistrate.
3. When the appeal was eventually commenced it was well out of time.[6] However, the delay was explained on affidavit and an extension of time in which to appeal was granted by this court on 11 May 2018.
4. The grounds on which an appeal may be brought under s 7 are set out in s 8 and include:[7]

(2) that the court imposed a sentence that was excessive; or

1. There were three grounds of appeal. The first alleged an error of law, namely that the Justices did not have power to impose a permanent licence disqualification for a second offence of driving under the influence. The second ground also alleged an error of law, in that it was said the Justices erroneously treated the offence as a third offence of driving under the influence. Ground 3 contended that:

The sentence of permanent licence disqualification for a second offence of driving under the influence of alcohol was manifestly excessive, constituting a miscarriage of justice.

1. The leave of this Court is required on each ground of appeal, and the Court must not give leave to appeal on a ground of appeal unless it is satisfied that the ground has a reasonable prospect of succeeding, which is to say that it must have a rational and logical prospect of succeeding, or a real prospect of success.[8]
2. On 11 May 2018, the appellant was given leave in respect of ground 3. The court ordered that the application of leave in respect of the first two grounds was to be heard with the appeal.
3. Given the respondent's concession in respect of ground 3 and the court's indication that it considered the concession was properly made, the appellant abandoned the first two grounds of appeal at the hearing of the appeal. It is not necessary to consider those grounds further. However, it follows that, for the purposes of considering ground 3, it will be assumed that the Justices did have power under s 63(2)(b) to impose permanent disqualification and did not regard the offence as a third offence. In my opinion, in relation to the first assumption the preponderance of authority is in favour of that construction in any event,[9] but I acknowledge that there is authority supporting the contrary view.[10] Given the course this appeal has taken, it is not necessary to resolve that issue.

1. The law as it relates to appeals against sentence is well settled and was not in dispute in this matter.
2. Although s 8 of the Criminal Appeals Act provides specific grounds on which an appeal may be brought, the principles that apply in appeals against sentences imposed in superior courts also apply in appeals brought under s 7 of the Criminal Appeals Act. Accordingly, an appellant must establish that the sentencing discretion has miscarried at first instance. An appellate court is not entitled to intervene merely because it would have exercised the sentencing discretion in a manner that is different from the manner in which the sentencing court exercised its discretion.[11] Where the contention is that the sentence was manifestly excessive, it must be shown to be unreasonable or plainly unjust.[12] The excess must be plainly apparent.[13]
3. A licence disqualification is part of a sentence.[14]
4. In determining whether a sentence is excessive, regard is had to the maximum penalty for the offence, the standards of sentencing customarily imposed, the place which the criminal conduct occupies on the scale of seriousness for the offence in question and the personal circumstances of the appellant.[15] In the context of considering a period of disqualification under s 63(2)(b) RTA, there is no maximum specified, but, as I indicated earlier, it will be assumed that the maximum period available is permanent disqualification.[16]
5. A sentence must be commensurate with the seriousness of the offence.[17] The seriousness is determined by having regard to the statutory penalty for the offence, the circumstances of the commission of the offence, any aggravating factors and any mitigating factors.[18] In the present context the statutory penalty would include the mandatory minimum period of disqualification.
6. There is conflicting authority as to whether, in determining the appropriate sentence, including the appropriate period of licence disqualification, under s 63(2), the court is entitled to take into account circumstances other than the extent to which the offender is under the influence of alcohol.[19] I am respectfully of the opinion that the views expressed in the authorities which favour consideration of all of the surrounding circumstances, including the manner of driving, as well as the extent of intoxication, should be preferred. As Simmonds J pointed out in Brand v Vuleta [2005] WASC 24,[20] that position appears to have been reasonably clear before the decision of Barker J in Jackamarra v Orr [2003] WASCA 278, in which his Honour expressed a contrary view. There was no reference in Barker J's reasons in Jackamarra to the earlier authorities of Brooks v Taylor & Stewart and Walley v Miles, which supported the proposition that the surrounding circumstances were relevant considerations. Further, it would appear, with respect, that limiting the assessment of the seriousness of the offence to one factor connected with the elements of the offence is inconsistent with the requirements of s 6 of the Sentencing Act 1995 (see [26] above).
7. Apart from the manner of driving, there may be other considerations, in my opinion, which would affect the seriousness of an offence under s 63(1), such as whether there were passengers in the offender's vehicle and whether the safety of other people was put at risk because of the location of the driving, the number of other road users in the vicinity, or the speed at which the vehicle was being driven (even where the offender was within the relevant speed limit, because the driver's reduced capacity for reaction when intoxicated would be expected to become more dangerous at greater speeds).
8. However, the extent to which the offender was under the influence of alcohol (determined primarily by reference to the blood alcohol result) is an important factor, and may be the most important factor.[21]
9. Irrespective of the circumstances, a third or subsequent conviction for an offence of driving under the influence of alcohol attracts the mandatory imposition of permanent disqualification: s 63(2)(c) RTA.
10. However, because permanent disqualification can properly be regarded as an extreme measure, there would have to be exceptional reasons to warrant the imposition of such an order in the case of a first[22] or second offence of driving under the influence of alcohol. [23] The circumstances would need to be exceptional, involving, it seems to me, an egregious case because of factors of the kind to which I have referred.[24]
11. This was not such a case. The appellant was not significantly over the level of 0.15 g of alcohol per 100 ml of blood, which is the level at which a person is deemed to have been under the influence of alcohol: s 63(5) RTA. The only fact of relevance before the Justices was that the appellant had hit the kerb a number of times as she was going around a roundabout. That did not necessarily inform the question of the extent to which she was under the influence, but in any event it was not driving of a kind that could properly be regarded as placing the case in an exceptional category.
12. Significantly, the Justices imposed the minimum fine available under s 63(2)(b) for a second offence. That would suggest they regarded the case as falling at the lower end of the scale of seriousness for an offence under s 63.
13. In all the circumstances, permanent disqualification was unreasonable and plainly unjust.
14. Ground 3 has been made out and the appeal must be allowed.

1. It becomes necessary then to resentence the appellant.
2. I was informed she is 63 years of age. In his affidavit in support of the application for the extension of time, the appellant's solicitor, who was also counsel at the appeal hearing, sets out the appellant's account of the circumstances in which she came to be driving while under the influence of alcohol. In my view, there is nothing mitigating in those circumstances, and I do not consider they are relevant for present purposes.
3. While the appellant does not come before the court as a person of prior good character in the context of traffic offences, and in particular offences involving driving after consuming alcohol, the last conviction for an alcohol related offence (which was also the most recent conviction in her history) was some eight and a half years before the offence for which she was convicted on 8 June 2017.
4. I note that the appellant was disqualified from driving for about one month as a result of the disqualification notice issued to her under s 71C RTA in respect of this matter.
5. In my opinion, the sentencing objectives of punishment, personal and general deterrence and protection of the community, all of which are relevant in the present case, would be adequately met by the imposition of the minimum period of disqualification under s 63(2)(b) RTA. Such a period of disqualification would also be commensurate with the fine imposed by the Justices. The respondent did not contend otherwise.

1. Accordingly, at the conclusion of the hearing on 22 June 2018, I made the following orders:

(2) The order permanently disqualifying the Appellant from holding or obtaining a motor driver's licence, imposed on 8 June 2017, is set aside.

(3) There will be an order, substituted for the order of 8 June 2017, that the Appellant is disqualified from holding or obtaining a motor driver's licence for a period of 30 months, effective from 8 June 2017.

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

RESEARCH ASSOCIATE/ORDERLY TO THE HONOURABLE FIANNACA

[1] Road Traffic Act 1974 (WA), s 71C(3) and s 71D(1).

[2] Road Traffic (Administration) Act 2008 (WA), s 7.

[3] The transcript of proceedings has a number of portions shown as 'indistinct', including in the sentence where the disqualification was imposed, but the Prosecution Notice (Annexure 'DSH 1' to the affidavit of Derek Scott Hunter sworn 16 March 2018) discloses that the order was made as stated in the text of these Reasons.

[4] Inserted in the Western Australia, Government Gazette, No 167 (20 September 2016) 3970.

[5] Criminal Appeals Act 2004 (WA), s 4(2) (definition of 'court of summary jurisdiction'); Magistrates Court Act 2004 (WA), s 7 and s 11(4).

[6] The appeal was required to have been commenced no later than 28 days after the date of decision, unless the Supreme Court orders otherwise: Criminal Appeals Act 2004, s 10(3).

[7] Criminal Appeals Act 2004 (WA), s 8(1).

[8] Criminal Appeals Act 2004 (WA), s 9(1) and (2); Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473, 487 [56]

[9] Richards v Damianopolous [2002] WASCA 59 [15] - [18] (McLure J); R (a child) v Panaia [2011] WASC 210 [31] - [32] (Hall J). Although both cases were concerned with disqualification upon conviction of offences of reckless driving, the statutory scheme was the same as under s 63(2) RTA.

[10] Jackamarra v Orr [2003] WASCA 278 [35] - [37] (Barker J).

[11] Lowndes v The Queen (1999) 185 CLR 665 [15]; Markarian v The Queen (2005) 228 CLR 257 [27]; Scolaro v Shephard [No 2] [2010] WASC 271 [200] (Martin CJ).

[12] McCoombe v The State of Western Australia [2016] WASCA 227 [25]; Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 [6] (Gleeson CJ & Hayne J); [22] (Gaudron & Gummow JJ); [59] (Kirby J).

[13] Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 [6] (Gleeson CJ & Hayne J).

[14] Sentencing Act 1995 (WA), s 102 and s 105.

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

[16] See the discussion by Hall J in K (a child) v Panaia [2011] WASC 210 [34] - [35] as to why permanent disqualification is to be regarded as a period of disqualification.

[19] In Jackamarra v Orr [2003] WASCA 278 [35], Barker J was of the view that only the extent of intoxication is relevant. In Brooks v Taylor & Stewart (Unreported, WASC, Library No 960410, 31 July 1996) (Steytler J), Walley v Miles (Unreported' WASC, Library No 950179, 10 April 1995) (Rowland J) and Brand v Vuleta [2005] WASC 24 (Simmonds J), the presiding judges were of the contrary view, considering that other circumstances, including the manner of driving, were also relevant.

[20] Brand v Vuleta [2005] WASC 24 [24].

[21] It was considered to be the most important factor (as a matter of general principle) by Steytler J in Brooks v Taylor & Stewart, although, in Walley v Miles, Rowland J did not consider it would always be the most important factor, as the fact that the level is much higher than the minimal level prescribed may not, in all cases, impact on an offender's incapacity to control a motor vehicle (6 - 7).

[22] The minimum period of disqualification for a first offence is 10 months: s 63(2)(a) Road Traffic Act 1974 (WA).

[23] Tubbs v Pomykaj [2009] WASC 379 [4]; K (a child) v Panaia [201 1] WASC 210 [43].

[24] Tubbs v Pomykaj [2009] WASC 379 [4]; K (a child) v Panaia [201 1] WASC 210 [43].