Criminal law - Driving offences - Plea of guilty on two charges of driving whilst under suspension - Sentences of imprisonment cumulative - Whether sentence of imprisonment excessive - Totality principle - Held that sentence was excessive - Appeal allowed - Turns on own facts

Criminal Appeals Act 2004 (WA), s 9, s 14, s 39

Road Traffic Act 1974 (WA), s 49(1), s 49(2)(a)(iii), s 49(3)

Sentencing Act 1995 (WA), s 6

Anderson v Heath [2005] WASC 253

Anderson v Stilwell [2006] WASC 257

Findlay v State of Western Australia [2007] WASC 61

Garrett v Nicholson [1999] WASCA 32; (1999) 21 WAR 226

Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665

McLean v The Queen [1999] WASCA 209

Mill v The Queen (1988) 166 CLR 59

Nevermann (1989) 43 A Crim R 347

Pickett v State of Western Australia [2004] WASCA 291

Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295

Rossiter v Francisty [2005] WASC 270

Samuels v State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473

Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465

1 The appellant, Dean Andrew Kearney, seeks leave to appeal in respect of certain sentences imposed upon him on 28 November 2006 in the Karratha Magistrates Court.

2 By a prosecution notice dated 22 May 2006 being KH 560/06 the appellant was charged that on 16 May 2006 at Karratha he drove a motor vehicle registered number HRTVYSS on a road, namely, Bathgate Road, without being the holder of the appropriate valid driver's licence for that class of vehicle and whilst legally disentitled to hold a driver's licence contrary to s 49(1) and s 49(2)(a)(iii) of the Road Traffic Act 1974 (WA).

3 By a prosecution notice dated 16 October 2006 the appellant was charged that on 10 October 2006 at Bulgarra he drove a motor vehicle, namely, a Holden Commodore sedan registered number HRTVYSS on a road namely, Searipple Road, without being the holder of the appropriate valid driver's licence for that class of vehicle and whilst legally disentitled to hold a driver's licence contrary to the provisions of the Road Traffic Act mentioned earlier.

4 I note in passing that the appellant had a significant prior record of road traffic offences. I will turn to the details in that regard later.

5 Section 49(1) of the Road Traffic Act provides that every person who drives a motor vehicle of a class for which he is not the holder of the appropriate valid driver's licence on a road commits an offence.

6 Section 49(2)(a)(iii) provides that where a person, having been disqualified from holding or obtaining a driver's licence, other than under a licence supervision order referred to subpar (iv) commits, whilst still legally disentitled to hold a driver's licence, an offence against subs (1)(a), the person may be arrested without warrant by a member of the police force and is liable, instead of to the penalties provided by subs (1) to those provided by subs (3).

7 Section 49(3) provides that a person convicted of an offence against this section committed in any of the circumstances mentioned in subs (2) is liable for a subsequent offence to a fine of not less than 20 PU or more than 80 PU and imprisonment for not more than 18 months.

8 There are related provisions concerning the disqualification of the person from holding a licence.

9 On 31 May 2006 in the Karratha Magistrates Court the appellant entered pleas of guilty to one charge of driving without the appropriate valid driver's licence and whilst legally disentitled to hold a driver's licence pursuant to the subject provisions of the Road Traffic Act. The appellant also entered a plea of guilty to a charge of failing to obey the directions of a police officer. These offences were Karratha Court numbers KH 560/06 and KH 561/06 respectively. The offences occurred on 16 May 2006. The appellant was placed on a pre-sentence order with a review dated of 28 November 2006.

10 On 28 November 2006 the appellant entered a plea of guilty in the Karratha Magistrates Court to a further charge of driving a motor vehicle on a road without being the holder of an appropriate valid driver's licence and whilst legally disentitled to hold a driver's licence pursuant to the subject provisions. This offence occurred on 10 October 2006. This was Karratha Court number KH 1217/06.

11 On 28 November 2006 in relation to a driving under suspension charge which had occurred on 16 May 2006, KH 560/06, the appellant was sentenced to 12 months' imprisonment with eligibility for parole. His motor driver's licence was disqualified for 12 months cumulative upon any other suspensions he might be serving.

12 In relation to Karratha Court number KH 1217/06, the offence which occurred on 10 October 2006, the appellant was also sentenced to 12 months' imprisonment with eligibility for parole and his driver's licence was suspended for 12 months, again cumulative upon any other suspension.

13 The two periods of imprisonment were made cumulative upon each other and the appellant was made eligible for parole. The total or effective aggregate sentence imposed was therefore a term of imprisonment for 2 years commencing 28 November 2006 with eligibility for parole.

14 In relation to Karratha Court number KH 561/06, the appellant was fined $100 with costs $53. I note in passing that this offence (KH 561/06) is not subject to appeal. Moreover, the periods of motor driver's licence disqualification are also not subject to appeal.

15 The appellant had a prior record in respect of similar offences. The transcript of the hearing on 28 November 2006 reveals that the learned Magistrate made these observations:

"The pre-sentence order was to be reviewed today, and a month before your sentencing date, you're out driving again when you shouldn't. What is also significant from your record is the number of convictions that you have clocked up in 2006 for driving under suspension. I have read, and I have referred to earlier, the explanation that you gave to the author of the pre-sentence report, that you can't help yourself. In my view, you've been afforded an opportunity to rehabilitate yourself. There's no prospect of you rehabilitating yourself in the community. I've got no confidence at all, notwithstanding that you tell me that you've removed yourself from temptation, you get a bus and you don't need to drive any more, but I've got no confidence at all that you won't re-offend.

In relation to penalty, given the seriousness of the matter, the only sentence that I can hand down is a term of immediate imprisonment to deter you and others from repeatedly driving when you're not supposed to, and placing the community at risk. In relation to those two charges, you're sentenced to a term of imprisonment of 12 months on each, with parole eligibility, and those sentences are to be served cumulatively. In relation to the offence of failing to obey the directions of a police officer, there will be a fine of $100 and costs of 53. You've got a total sentence of 24 months with parole eligibility."

16 By appeal notice dated 21 December 2006 the appellant applied for leave to appeal against the sentence.

17 The grounds of appeal were expressed in this way:

"1. The Learned Magistrate erred at law by imposing a sentence which was too long compared with sentences imposed on other people for similar offences committed in similar circumstances.

2. The Magistrate erred at law by failing to properly consider the totality principle when considering the total length of the sentences imposed.

3. The Learned Magistrate erred at law by imposing a sentence which was excessive in all the circumstances.

4. The Learned Magistrate erred at law by failing to consider alternatives to immediate imprisonment."

18 On 1 March 2007 Blaxell J made an order that the application for leave to appeal and the appeal were to be heard together. Various programming orders were also made at that time.

19 Let me now turn to certain legal principles bearing upon the matters in issue before me.

20 Section 9 of the Criminal Appeals Act 2004 (WA) provides that leave of the Supreme Court is required for each ground of appeal. Leave to appeal must not be given unless the Court is satisfied that the ground has a reasonable prospect of succeeding.

21 In Samuels v State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 it was said at [55] - [61] that the appeal must have a real prospect of success, bearing in mind that the purpose of the provisions is to weed out unmeritorious appeals.

22 The question of whether each ground has a real prospect of success obviously requires that some consideration be given to additional provisions and principles.

23 By s 14 of the Criminal Appeals Act the Supreme Court may dismiss or allow an appeal or set aside or vary the decision or remit the case for rehearing. By s 39, it must decide the appeal on the evidence and material that were before the lower court but this does not prevent consideration of any evidence that the lower court refused to admit.

24 A Magistrate is generally required to set out the relevant findings of fact and the reasons for his or her decision. The reasons must disclose adequately the intellectual process which has resulted in a particular determination: Garrett v Nicholson [1999] WASCA 32; (1999) 21 WAR 226.

25 In Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 at 671 it was said that for an appeal to succeed against the exercise of a discretionary power to determine the appropriate sentence it is generally necessary to establish that the judicial officer at first instance failed to properly exercise his discretion by acting upon a wrong principle, mistaking the facts, or allowing irrelevant matters to affect the decision.

27 The first ground was that the learned Magistrate erred at law by imposing a sentence which was too long compared to sentences imposed on other people with similar offences committed in similar circumstances. The fourth ground was that the Magistrate erred by failing to consider alternatives to immediate imprisonment.

28 By s 6 of the Sentencing Act a sentence must be commensurate with the seriousness of the offence, this being determined by taking into account the statutory penalty for the offence, the circumstances of the matter, any aggravating factors and any mitigating factors. A sentence of imprisonment must not be imposed unless it is justified by the seriousness of the offence or a need to protect the community.

29 Antecedent criminal history cannot be brought to account as an aggravating factor, but it can be relevant to show whether the instant offence reflects a continuing attitude of disobedience of the law: Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465.

30 In addition to these general considerations, I am conscious that in recent years there have been various decided cases in which terms of imprisonment have been approved for offences of this kind including Findlay v State of Western Australia [2007] WASC 61 in which cumulative terms of 12 months were imposed for the offender's twelfth and thirteenth convictions for driving under the influence of alcohol and whilst under suspension. In Anderson v Stilwell [2006] WASC 257 cumulative terms of 8 months, 8 months and 4 months respectively were upheld for the offender's twelfth to fourteenth convictions for driving whilst under suspension.

31 I note that in Rossiter v Francisty [2005] WASC 270 terms of 8 months or less to be served concurrently were approved for the offender's seventh to tenth offences of driving whilst under suspension; in Anderson v Heath [2005] WASC 253 terms of 7 months or less to be served concurrently were approved for the offender's eighth to tenth offences.

32 There were various particular factors relevant to the sentencing exercise in the present case. The second driving under suspension offence was aggravated because the appellant was on a pre-sentence order for the first driving under suspension offence at the time he committed the second offence (the learned Magistrate having expressly warned the appellant that imprisonment was likely if he drove during the term of the order). The pre-sentence report concerning the offender, which was mentioned by the Magistrate, shows that his response to the pre-sentence order had been erratic. The extensive traffic record of the 28-year-old appellant included convictions for driving under the influence (x 2), excess 0.05%, refusing a breath test, wilfully misleading police officers (x 2) and disobeying a patrolman's signal. These were the seventh and eighth convictions for driving under suspension, following closely after three other convictions in 2006 for driving without a licence. Moreover, all of the driving without a licence offences occurred on separate occasions.

33 Against this background, I am not easily persuaded that the Magistrate erred as alleged in the subject grounds of appeal. The offences were serious and the appellant's prior record and failure to respond properly to the pre-sentence order demonstrated a pattern of disobedience for which prison terms were warranted. The pre-sentence report dated 20 November 2006 weighed against a community order and the Magistrate recognised a need for deterrence in order to protect the community. These were all relevant considerations.

34 In the case of a busy court the failure to mention a matter (such as whether some disposition other than imprisonment was appropriate) does not give rise to an inference that it was not considered: Nevermann (1989) 43 A Crim R 347 at 350; Pickett v State of Western Australia [2004] WASCA 291 at [10]. In the end, I am not satisfied that leave to appeal should be granted in respect of the fourth ground.

35 However, as to the first ground of appeal I am conscious that the decided cases do suggest that the term imposed for each offence of 12 months was excessive. I referred to the cases in question in earlier discussion. I consider that weight must be given to the pattern of sentencing and greater weight should have been given to the appellant's plea of guilty and expression of remorse. In that regard I consider that I am obliged to prefer the reasoning of the High Court in Cameron v The Queen [2002] HCA 6, which presumes that weight must generally be given to a guilty plea as a discounting factor, to the observations in Findlay's case (supra) about that aspect of the matter.

36 For these reasons, I will give leave to appeal in respect of the first ground and allow the appeal on that ground. I will turn to the appropriate disposition in due course.

37 The second ground of appeal was that the learned Magistrate erred at law by failing to properly consider the totality principle when considering the total length of the sentences imposed. It was said in the third ground that the sentence imposed was excessive in all the circumstances.

38 It will be apparent from earlier discussion that the total effective aggregate sentence imposed was one of 2 years' imprisonment to commence on 28 November 2006 with eligibility for parole.

39 Section 88 of the Sentencing Act provides that an offender sentenced to a fixed term is to serve that term concurrently with any other fixed term that he has yet to serve unless the sentencing court orders that the subsequent fixed term is to be fixed cumulatively or partly concurrently with the earlier fixed term.

40 It is apparent from Pearce v The Queen (1998) 194 CLR 610 at 623 that an appropriate sentence is to be fixed for each offence followed by a consideration of cumulation or concurrence and then by questions of totality.

41 The totality principle enables a court to mitigate what strict justice would otherwise indicate if the overall sentence to be served is inappropriately long or too crushing: Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295 at 307.

42 The key factor is proportionality with a view to ensuring that the aggregate of the sentence is appropriate for each offence is a just and appropriate measure of the total criminality involved, not only in respect to the offences for which the offender is being sentenced but also as to any offences for which the offender is currently serving a sentence: McLean v The Queen [1999] WASCA 209.

43 The decided cases establish that an appropriate result may be achieved by making sentences wholly or partially concurrent or by lowering individual sentences: Mill v The Queen (1988) 166 CLR 59.

44 When I apply these principles to the circumstances of the present case, I am conscious that the Magistrate did not give explicit consideration to proportionality and the totality principle. I am conscious also that previously decided cases such as Findlay (supra) and Anderson (supra) do suggest that the imposition of cumulative 12 month terms giving rise to an effective aggregate term of 2 years, was excessive. However, having regard to the decided cases and the sentencing factors mentioned earlier, I consider that a more appropriate disposition was to impose a term of 8 months for each offence to be served cumulatively as from 28 November 2006. In the circumstances of this case, having regard especially to the offender's lack of compliance with the pre-sentence order, I am not persuaded that the proposed terms should be served concurrently.

45 I will grant leave to appeal in respect of the second and third grounds and will allow the appeal in respect of those grounds. The sentences imposed by the Magistrate in respect of the subject offences will be quashed. In substitution therefore, the appellant is to be sentenced to a term of imprisonment of 8 months for each sentence to be served cumulatively. This will give rise to an effective aggregate term of 16 months commencing on 28 November 2006 with eligibility for parole. It follows that the minimum term to be served before eligibility for parole is half the aggregate term; that is, 8 months from 28 November 2006.