Court of Appeal (WA)|2004-03-04|Before: Miller J, Smith J

Heaton v Moulden & Ors [2004] WASCA 29 (4 March 2004)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : HEATON -v- MOULDEN & ORS [2004] WASCA 29

Sentencing - Road Traffic Act - Five offences of driving under suspension - Seven previous convictions for driving under suspension - Driving unlicensed vehicle - Driving vehicle with false number plates - Refusal to order eligibility for parole - Whether parole eligibility should have been ordered

Australian Coal & Shale Employees Federation v Commonwealth [1953] HCA 25; (1953) 94 CLR 621

Chan v The Queen (1989) 38 A Crim R 337

Herbert v The Queen [2003] WASCA 61; (2003) 27 WAR 330

Jarvis v The Queen (1993) 20 WAR 201

R v Peterson [1984] WAR 329

1 ROBERTS-SMITH J: The appellant appeals against the refusal of a Magistrate to order that he be eligible for parole following his conviction upon his pleas of guilty in the Court of Petty Sessions at Perth to a number of charges in respect of which the learned Magistrate, Mr W Tarr SM, sentenced him to imprisonment for 17 months.

2 Leave to appeal was granted by Miller J on 20 October 2003 on the grounds that:

"(a) The learned Magistrate erred in law in refusing to grant parole;

(b) That the failure to grant parole was unjust, harsh and oppressive having regard to:

(i) the fact that the applicant was in work;

(ii) the fact that the applicant had a dependent family, and

(iii) the applicant's history of offending and antecedents generally."

3 The appellant appeared before the learned Magistrate on 6 August 2003 and pleaded guilty to five counts of driving under suspension, contrary to s 49(1) and (2)(a)(iii) of the Road Traffic Act 1974 (WA) ("the RTA"), three counts of driving an unlicensed vehicle contrary to s 15(3) of the RTA, three counts of driving a vehicle with false number plates, contrary to s 97(f)(iii) RTA and one count of breach of bail undertaking, contrary to s 51(1) of the Bail Act 1982 (WA).

4 The facts of the matters as outlined by the police prosecutor were as follows.

Complaints PE27776/03 and PE27777/03 - 22 July 2002

5 About 2.15 am on Monday 22 July 2002 the appellant was driving his Holden Camira car north along Albany Highway, Victoria Park. He was stopped regarding another matter and upon checking, the police officers ascertained on checking that his driver's licence had been suspended by the Court of Petty Sessions on 1 February 2002 for driving whilst under suspension. When questioned about that, the appellant readily admitted to the officers that his licence was suspended. Further enquiries revealed the vehicle's registration had expired on 15 March 2001. The appellant was taken to the Victoria Park police station and charged.

Complaints PE27920/03 and PE27921/03 - 23 July 2002

6 About 8.30 am on Monday 23 July 2002 the appellant was driving a brown Holden Camira on Spencer Road, Langford when he was stopped by the police. On checking they found that his licence had been suspended by a court on 1 February 2002 for an offence of driving whilst under suspension. The period of suspension was not to expire until 21 March 2003. Again, when questioned, the appellant admitted those facts. Further enquiries by the officers showed that the Victorian registration plates (CCV 371) fitted to the vehicle did not belong to it but to a green Mazda hatchback. The appellant told the officers he had bought the car from a friend two weeks earlier and did not know the number plates were false.

7 On 6 November 2002 the appellant was driving a Mitsubishi Magna station wagon in an easterly direction on Morley Drive about 8.23 am when he was stopped by police for exceeding the speed limit. He was issued a traffic infringement notice for the speeding offence and allowed to proceed.

8 About 9.40 pm the same day, the appellant was driving the same vehicle along Beaufort Street, near Fourth Avenue in Mount Lawley when he was again stopped by police. On that occasion the officers ascertained that the registration plates on the vehicle (MY5 136) were not the correct plates for that vehicle. Their enquiries also disclosed that the Mitsubishi Magna was unlicensed, the vehicle licence having expired on 31 March 2001. The officers also learned of the court suspension of the appellant's licence on 1 February 2002 and also that his licence had been suspended for non-payment of fines. The appellant confirmed that he was aware of both the court and outstanding fine suspensions. He was arrested and taken to the Inglewood police station.

9 On Thursday 6 February 2003 the appellant was driving a Mitsubishi Magna sedan in a southerly direction along Spencer Road in Thornlie at about 11.05 pm. Police officers noted the car had insufficient lights and stopped the appellant. Their routine licence check revealed that the registration plates fitted on that vehicle (7DU 324) were incorrect. Further enquiries revealed that the Magna was currently unlicensed and that the appellant's driver's licence had been suspended by the court on 1 February 2002 and was also the subject of numerous fine suspensions. The appellant made full admissions of these matters.

10 On that occasion the police officers also ascertained the appellant had an outstanding bench warrant. He had signed a bail undertaking on 6 November 2002 to appear in the Perth Court of Petty Sessions on 31 December 2002 and failed to appear, as a result of which a bench warrant was issued.

11 The appellant was represented by duty counsel before the learned Magistrate.

12 A pre-sentence report was ordered when the appellant appeared in the Perth Court of Petty Sessions on 2 July 2003. A report dated 14 July 2003 was before the learned Magistrate on 6 August 2003.

13 In relation to the July offences then before the court, the report noted that the appellant had explained the offences had occurred after he had an argument with a friend. The argument was in relation to finances. The appellant said the friend had possession of his tools and some personal effects and as he was afraid that the friend would not return them, he drove to the friend's house and removed his belongings. It was on his way home that he was stopped by the police. He then drove the same vehicle in the morning to take a friend's children to school, resulting in further similar offences.

14 In relation to the February 2003 offences, the appellant told the Community Corrections officer that he was driving home, having picked up his car from a friend's home after they had worked late. He told the officer that he continued to drive unregistered cars as he had been under financial duress and could not afford to register them. He said he has never held a licence and had been unable to attain one because his recidivist behaviour and the punitive consequences had prohibited him from so doing. He said he continued to drive because he needed to for work purposes. He went on to say however, that he realised that he could not continue to "buck the system" and that he needed to "conform to meet [his] responsibilities". The report concluded:

"Mr Heaton was co-operative with the interview process. He admitted that his current offences appear to indicate an attitude where (sic) he has no regard for the law. However, he stated that his offending was a result of being under financial duress, and that he needed to drive to continue work. Mr Heaton has an extensive offending record, with previous offences similar to his current offences. Mr Heaton admits that he has not led a disciplined lifestyle and views his upbringing as a contributing factor. He displayed remorse for his current offences in that his involvement in the legal system, and punitive consequences have a negative impact on his partner. He advised that he has not driven since his current offences and has been using public transport or his partner has been transporting him.

Mr Heaton has previously completed 2 periods of Home Detention. The obligations and conditions of community supervision have been explained to Mr Heaton and he indicated that he would comply with community work, supervision and any program he may be directed to attend. However, Mr Heaton did not appear to have any issues which could be addressed by way of a program. It is recommended that community supervision would be a suitable disposition for Mr Heaton. However, should Mr Heaton be sentenced to a period of imprisonment he is assessed as suitable for Parole."

15 A verbal pre-sentence report was given by a Community Corrections officer who spoke to the written report. She explained that the appellant was a 37 year old man who had not really been able to provide her with any explanation for his offending, other than that he drives for work purposes. She explained that he had first appeared in court in South Australia at 16 years of age and since then had a lengthy history in South Australia with a short history of criminal offending in Victoria as well as in this State. She said that the appellant had had orders of community supervision in South Australia but that they appeared to have had little impact on the rate of his recidivism. In Western Australia he was first given a work and development order in 1999 but that was breached by further offending and he had been the subject of two periods of home detention on early release orders from prison in 1999 and 2002 which he had completed. He had not been subject to any other supervision in Western Australia.

16 According to the report, the appellant is the first of two children born to parents who separated when he was around 7 years of age. He has a half sibling from a subsequent relationship of his mother, who remarried. His step-father is reported to have been a violent and abusive man within the home. His mother also had a problem with illicit substances and it appeared the appellant was left alone for extended periods without adequate discipline.

17 He had his first relationship at 26 years of age and has had three significant relationships. He has two children aged 10 and 4 years of age from his previous relationships and has no contact with them. He was currently in a relationship of some three years standing and his partner was 8 weeks pregnant at the time the appellant appeared before the learned Magistrate. He claimed to the Community Corrections officer that his relationship had a stabilising effect upon him, that his partner is supportive and that she has a driver's licence and he no longer has the need to drive.

18 The report went on to note that the appellant was employed as a tree lopper, earning $550 per week when working. At that stage he owed $2,650 to Fines Enforcement.

19 The Community Corrections officer reiterated that the appellant had had orders of community supervision in another State and suspended imprisonment in this State, but had breached those orders. Furthermore, notwithstanding periods of imprisonment he had continued to offend in a similar manner. She said the option of community supervision was there but she was "... loath to suggest that it's appropriate". The officer was of the view that the appellant had not given any substantial indication that he was likely to cease engaging in his pattern of behaviour which continued to persist even though he was 37 years of age. She noted that if he was sentenced to a finite term, he would be eligible for a further period of home detention once he had served one-third of that sentence or 2 months, or alternatively he would be eligible to be considered for parole.

20 Duty counsel then made the following submission:

"COUNSEL: Sir, as I'm sure you appreciate, these cases are always difficult and I won't repeat a lot of what my friend has said. Simply to say, sir, that - - to remind your Worship he's 37. Of course, ... (indistinct) ... from Mr Heaton. He's hoping today that, of course - - that he doesn't go to gaol. He's hoping, sir, that your Worship consider placing him on an order or that your Worship, if considering imprisonment, then turn your mind to the question of suspension of that term; and I just simply say that on behalf of Mr Heaton, sir.

His partner is sitting at the back of the court. She's 8 to 10 weeks pregnant, sir. The explanations for driving is really - - is that set out by my learned friend (sic). Mr Heaton says, sir, that he does not have a disrespect for the law. He always says it's simply a case of necessity that he drives. He appreciates, sir, he needs to alter his behaviour. He says in addition, sir, that he's reached the point of not re-offending and as my learned friend has said his partner has a driver's licence. There's no need for him to drive and she will drive him to and from work.

His real concern, sir, in a nutshell, is that his wife will give birth and he might be in prison - - nothing to offer to child upon birth, sir, and I think, sir, on my calculation this would be Mr Heaton's seventh driving under suspension, sir, and he's in your hands, sir."

21 The learned Magistrate observed that the appellant had a lengthy record and that although the submission had been made that the appellant did not intentionally flout the law, his record suggested he had no respect for it - and particularly orders of the type which had been made in relation to driving. His Worship referred to a number of the appellant's particular convictions and after some further exchanges with the appellant, his Worship went on:

"Well, I'm required to impose a penalty today and when I look at all the options, I've only got one option and that's a term of imprisonment. I'd be failing in my duty if I imposed any other penalty and it's not my view that I should suspend that term of imprisonment. You were - - have been given opportunities to serve a suspended term of imprisonment. That was beached when you continued to drive. So, you really haven't been looking after your own interests. That's the bottom line. So, just sit down for a moment. I'll go through these.

All right. Just stand up. As I said, I have no alternative but to impose a custodial sentence and I'll go through them in date order. In relation to the charge on the 13th - - the 22nd of July 2002, there were two charges there. On the charge of driving under suspension, 27776, you'll be sentenced to 3 months imprisonment and you'll be disqualified from holding or obtaining a motor driver's licence for 9 months.

On the charge of driving an unlicensed vehicle on that day, you'll be fined $100 with costs of $38.

On the charge of driving while under suspension on the 23rd of July, you'll be sentenced to 6 months imprisonment and you'll be disqualified from holding or obtaining a motor driver's licence for 9 months.

On the November charges; on the charge of driving under suspension on the 6th of November, on each of those - - there are two charges there. On each of those charges you'll be sentenced to 6 months imprisonment and the term on 45593 of 2002 will be cumulative on the 6 months that was imposed on 2792. You'll be fined $100 on each of the charge of driving unlicensed vehicle and a vehicle where the plates are not issued for that; and there'll be costs of $38.

On the February charges you'll be sentenced to 4 months imprisonment on the charge of driving under suspension and that term will be cumulative.

On the charge of driving with false plates, you'll be fined $100 on each of those; and on the Bail Act matter, which in fact delayed these matters being dealt with, you'll be sentenced to 1 month imprisonment and that term will be cumulative and you'll be disqualified from holding or obtaining a motor driver's licence for 9 months on that charge.

Those 9 months disqualifications that I've imposed on each of the driving under suspension charges will be concurrent with each other but cumulative on - - the 9 months will be cumulative on your current disqualification. I'm not sure when you're due to get your licence back but I don't believe it helps by adding to that any more than I need to.

There will be orders for the return of the plates. What I've done is given you a total of 17 months imprisonment and because of your past record I'm not going to make you eligible for parole."

22 At that point counsel rose and asked to be heard in relation to the issue of parole.

23 His Worship commented that he had considered parole but he would hear from counsel if counsel wished to add to it.

24 Counsel asked that the matter be stood over until the afternoon because he wanted an opportunity to go through the appellant's record.

25 The learned Magistrate acceded to that request and the matter was adjourned.

26 Upon resumption, counsel submitted that when looked at against other offences "for which parole is normally refused in appropriate cases", the offence of driving under suspension was not as serious. It was not a case of the appellant driving so as to commit other offences of a more serious nature. He was driving either to or from work.

27 Counsel confirmed that it was the appellant's seventh driving under suspension (in fact it was his eighth).

28 Counsel then submitted that although the appellant's antecedents were accepted by the defence, the appellant said that he had always driven out of necessity and not because of any contempt of the orders of disqualification imposed upon him by the courts. He submitted it was relevant that the appellant now claimed to have realised that he could not afford to re-offend in this way.

29 Reference was made to the fact the appellant was sentenced on 31 August 1998 to 4 months imprisonment suspended for a period of 18 months. That order was breached by conviction (again for driving under suspension) and on 28 May 1999 he was also sentenced to 9 months imprisonment. Following his release from prison he was sentenced to 5 months imprisonment on 1 February 2002 for another offence of driving under suspension. The nature of the sentences was such as to not attract a parole order. However, upon the appellant's release from imprisonment, he was subject to home detention on both occasions which he completed successfully. The point counsel was seeking to make about this was that the appellant had never been subject to parole previously and nor had he actually been denied parole.

30 His Worship then re-visited the issue of parole as follows:

"HIS WORSHIP: Well, he's been released, as you say, on home detention, which happens on a regular basis now days. The defendant was convicted today by his plea of guilty before me for five charges of driving under suspension. I was told that he was driven - - had driven for - - you can sit down. I'm just talking to Mr - - I'm told he was driven - - he continued to drive for work purposes, which suggests - and my suspicion is that he's just disregarded all the orders that have been made by the court, not only in this State but in South Australia. He's just done nothing to comply with the orders or mend his ways.

I've called for a pre-sentence report - or someone else did - and the recommendation was that he was not suitable for a community based order. When I consider the sentences that have been imposed for similar offences by imposing fine - - terms of 3 months and 6 months, as I've done, although I've made some cumulative I haven't gone over the top in relation to what I could have imposed. The maximum penalty for this type of offence is 18 months and if I gave him the maximum and made them cumulative he'd be looking at something like 9 years. Obviously that's not appropriate in all the circumstances.

COUNSEL: That's correct, sir.

HIS WORSHIP: But that's - - that's what he was subject to. Now, I've heard your submission on parole. I don't believe that in view of the defendant's record he's shown no - - shown no attempt to mend his ways in the past and I think it's in his interests to serve the time and then come out and either do the right thing or risk going straight back in. So, I don't propose to make him eligible for parole."

31 It must be said that it is difficult to work out from the sentencing remarks of the learned Magistrate and the appeal papers, just what punishment orders his Worship actually made with respect to some of the particular convictions.

32 I fully understand and appreciate that Courts of Petty Sessions are busy courts and generally operate under pressure of having to deal with a large number of people in a short time. Nonetheless, it is essential that sentences and orders are expressly and clearly identified as relating to the particular offences in respect of which they are imposed or made.

33 The outcome in respect of each complaint, as distilled from the material available to me, is set out in the following table:

34 The maximum penalty for an offence under s 49(2)(iii) of the RTA is a fine of not less than $1,000, nor more than $4,000 or imprisonment for a term not exceeding 18 months or both such fine and imprisonment (s 49(3)(a)(ii) RTA).

35 When the appellant was sentenced in August 2003, s 89(1) of the Sentencing Act 1995 (WA) provided that a court sentencing an offender to one or more fixed terms of imprisonment may, if it considered it was appropriate to do so, order that the offender be eligible for parole by making a parole eligibility order.

36 Section 89 of the Sentencing Act was amended by the Sentencing Amendment and Appeal Act 2003. The relevant provisions amending s 89 came into operation on 30 August 2003, after the sentencing of the appellant. This appeal must accordingly be dealt with on the basis of the law as it applied prior to the amendment.

37 Section 89(2) of the Sentencing Act as it then stood, provided that in determining whether or not it was appropriate to make a parole eligibility order, a court may have regard to all or any of a number of matters including the seriousness and nature of the offence, the circumstances of its commission, the offender's antecedents, circumstances relevant to the offender or which in the court's opinion might be relevant to the offender at the time when the offender would be eligible for release on parole if an order were made, and any other reason the court decides is relevant.

38 The principles applicable to the determination of whether or not a parole eligibility order should be made were well established. They are conveniently summarised in Cunningham v Walsh [2000] WASCA 201 at [19] - [21] and Nebro v Duxbury [2000] WASCA 171; (2000) 31 MVR 499 at [22] - [25]:

(a) the determination whether it is appropriate to make a parole eligibility order involves the exercise of judicial discretion which cannot be triggered unless there is something in the materials before the sentencing court which points positively towards the appropriateness for parole. Nonetheless, the philosophy of the Sentencing Act suggests a bias towards eligibility. Parole serves to mitigate punishment as well as provides an opportunity for rehabilitation. The factors in s 89(2) include a prognostication of circumstances at the time the offender would be eligible for release, thus recognising the relationship between punishment and the need to consider factors leading to the offender's rehabilitation and the question whether they are likely to benefit from serving the relevant portion of the sentence under supervision in the community (Thompson v The Queen (1992) 8 WAR 387; Wongawol v The Queen (1998) 101 A Crim R 350 at 354).

(b) the antecedent criminal history of an offender is relevant to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in their commission of it a continuing attitude of disobedience to the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows their dangerous propensity or a need to impose a condign punishment to deter the offender and others from committing further offences of a like kind (Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465, 477 per Mason CJ, Brennan, Dawson and Toohey JJ).

(c) where an offender's antecedents disclose a series of prior convictions for the same or similar offences, this tends to demonstrate that the offender is a poor risk and that an order for eligibility for parole would not be appropriate (Swain v The Queen (1989) 41 A Crim R 214, 218; Cardillo v Taylor [1999] WASCA 166; (1999) 29 MVR 301 [36]; McLean v The Queen [1999] WASCA 209 at [26]).

39 The appeal is only against the learned Magistrate's refusal to order eligibility for parole.

40 His Worship's reasons for initially declining to order eligibility for parole are apparent from his response when counsel sought to address him on the issue. His Worship was mindful of the authorities which suggest that parole would not be appropriate where an offender continues to commit similar offences when they have had the benefit of court ordered supervision in the past. His reasons were again articulated following submissions from counsel. His Worship was of the view that the appellant's record (in the context of the offences with which he was then dealing) showed no attempt to "mend his ways" and it was in his interest to serve his term of imprisonment and then either comply with the law or risk further imprisonment.

41 It was quite open for the learned Magistrate to take the view the appellant's criminal history manifested a long-standing and continuing disregard for the law. Not only that, it was more than a mere casual disregard - a number of offences revealed a deliberate calculated attempt to drive in defiance of statutory prohibitions and court orders, exacerbated by the use of false registration plates.

42 The appellant's Western Australian convictions ranged from breach of bail, false pretences, fraud and permitting the use of a vehicle with forged or fraudulently altered number plates, in July and August 1991 to driving under suspension, breach of bail, false name, fraud and stealing in February 2002. In between those dates there were six convictions for driving under suspension, one of using an unlicensed vehicle, and others of breach of bail, breach of a suspended sentence order, giving a false name and address and fraud and stealing. His interstate convictions were similar in type and number.

43 There can be no doubt in the circumstances that his Worship thought there was nothing shown which would have justified the making of a parole eligibility order in the interests of the appellant's rehabilitation and nor was there any occasion for mitigation of punishment through such an order. Not only were those conclusions well open to his Worship, but they are conclusions which were inevitable in the circumstances.

44 One aspect of his Worship's remarks has caused me some concern. It is his reference to there being a recommendation in the pre-sentence report that the appellant was not suitable for a community based order (AB 27). In fact, the recommendation report reads that community supervision would be a suitable disposition for the appellant.

45 However, it must be remembered that the report was spoken to before his Worship by a Community Corrections officer who told his Worship that community supervision orders in South Australia had appeared to have little impact on the rate of the appellant's recidivism and later, that although community supervision was an option, she was loath to suggest it was an appropriate disposition.

46 I am accordingly satisfied that his Worship did not err in his understanding that the pre-sentence report as spoken to was that the appellant was not suitable for a community based order.

47 I refer to this not because it was contended his Worship should have made a community based order rather than imposed a sentence of immediate imprisonment (that was not contended) but because his Worship, quite properly, took the appellant's suitability or otherwise for community supervision into account when considering whether or not to order eligibility for parole.

48 Finally, to the extent the grounds of appeal as formulated complained in effect that the overall sentence was manifestly excessive because of the refusal to order parole eligibility, it must fail.

49 The authorities to which I have referred make it abundantly clear that the mitigating effect of an offender's personal or familial circumstances will carry little weight against the need for individual and general deterrence, where the offender has repeatedly and deliberately committed offences of this kind. The learned Magistrate was entirely correct in taking the approach he did.

Amendment and Appeal Act 2003

Heaton v Moulden & Ors [2004] WASCA 29

At a glance

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Judgment (74 paragraphs)

Heaton v Moulden & Ors [2004] WASCA 29 (4 March 2004)

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Legislation Cited (2)

Cases Cited (9)